personal reminiscences of early days in california, with other sketches. by stephen j. field. to which is added the story of his attempted assassination by a former associate on the supreme bench of the state. by hon. george c. gorham. printed for a few friends. not published. copyright, , by stephen j. field. * * * * * the following sketches were taken down by a stenographer in the summer of , at san francisco, from the narrative of judge field. they are printed at the request of a few friends, to whom they have an interest which they could not excite in others. * * * * * personal reminiscences of early days in california, with other sketches. index. why and how i came to california. first experiences in san francisco.--visit to marysville, and elected first alcalde of that district. experiences as alcalde. the turner controversy. running for the legislature. the turner controversy continued. life in the legislature. friendship for david c. broderick. legislation secured and beginning a new life. the barbour difficulty. removal from marysville.--life on the supreme bench.--end of judge turner. career on the supreme bench of california, as described by judge baldwin. the annoyances of my judicial life. rosy views of judicial life gradually vanishing.--unsettled land titles of the state.--asserted ownership by the state of gold and silver found in the soil.--present of a torpedo. hostility to the supreme court after the civil war.--the scofield resolution. the moulin vexation. the hastings malignity. appendix. ex. a.--notice of departure from new york for california, november , . ex. b.--aid at election of alcalde by wm. h. parks.--a sketch of my opponent. ex. c.--oath of office as alcalde. ex. d.--order of district court imprisoning and fining me for alleged contempt of court; also order expelling messrs. goodwin and mulford and myself from the bar; and order imprisoning and fining judge haun for releasing me from imprisonment upon a writ of habeas corpus, and directing that the order to imprison me be enforced. ex. e.--record of proceedings in the court of sessions, when attempt was made to arrest its presiding judge; and the testimony of the clerk of the district court in reference to its proceedings relating to myself and judge haun. ex. f.--petition of citizens of marysville to the governor to suspend judge turner from office . ex. g.--letters of ira a. eaton and a.m. winn. ex. h, no. i.--letters from surviving members of the legislature of , who voted to indefinitely postpone the proceedings for the impeachment of judge turner. ex. h, no. ii.--letter of judge mott on the difficulty with judge barbour. ex. i.--letter of l. martin, the friend of judge barbour in his street attack. ex. j.--sections , , and of the act of july , , to expedite the settlement of titles to lands in california; and the act of march , , to quiet the title to certain lands in san francisco. ex. k.--letter of judge lake giving an account of the torpedo. ex. l.--extract from the report of the register and receiver of the land-office in the matter of the contests for lands on the soscol ranch * * * * * the attempted assassination of mr. justice field index. attempted assassination of justice field by a former associate on the state supreme bench chapter i the sharon-hill-terry litigation. chapter ii proceedings in the superior court of the state. chapter iii proceedings in the united states circuit court. [transcriber's note: there is no chapter iv] chapter v decision of the case in the federal court. chapter vi the marriage of terry and miss hill. chapter vii the bill of revivor. chapter viii the terrys imprisoned for contempt. chapter ix terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there. chapter x president cleveland refuses to pardon terry--false statements of terry refuted. chapter xi terry's continued threats to kill justice field--return of the latter to california in . chapter xii further proceedings in the state court.--judge sullivan's decision reversed. chapter xiii attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. chapter xiv sarah althea terry charges justice field and deputy marshal neagle with murder. chapter xv justice field's arrest and petition for release on habeas corpus. chapter xvi judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. chapter xvii habeas corpus proceedings in justice field's case. chapter xviii habeas corpus proceedings in neagle's case. chapter xix expressions of public opinion. chapter xx the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. chapter xxi concluding observations. * * * * * why and how i came to california. some months previous to the mexican war, my brother david dudley field, of new york city, wrote two articles for the democratic review upon the subject of the northwestern boundary between the territory of the united states and the british possessions. one of these appeared in the june, and the other in the november number of the review for .[ ] while writing these articles he had occasion to examine several works on oregon and california, and, among others, that of greenhow, then recently published, and thus became familiar with the geography and political history of the pacific coast. the next spring, and soon after the war broke out, in the course of a conversation upon its probable results, he remarked, that if he were a young man, he would go to san francisco; that he was satisfied peace would never be concluded without our acquiring the harbor upon which it was situated; that there was no other good harbor on the coast, and that, in his opinion, that town would, at no distant day, become a great city. he also remarked that if i would go he would furnish the means, not only for the journey, but also for the purchase of land at san francisco and in its vicinity. this conversation was the first germ of my project of coming to california. some months afterwards, and while col. stevenson's regiment was preparing to start from new york for california, my brother again referred to the same subject and suggested the idea of my going out with the regiment. we had at that time a clerk in the office by the name of sluyter, for whom i had great regard. with him i talked the matter over, it being my intention, if i should go at all, to induce him if possible to accompany me. but he wished to get married, and i wished to go to europe. the result of our conference was, that the california project was deferred, with the understanding, however, that after my return from europe we should give it further consideration. but the idea of going to california thus suggested, made a powerful impression upon my mind. it pleased me. there was a smack of adventure in it. the going to a country comparatively unknown and taking a part in fashioning its institutions, was an attractive subject of contemplation. i had always thought that the most desirable fame a man could acquire was that of being the founder of a state, or of exerting a powerful influence for good upon its destinies; and the more i thought of the new territory about to fall into our hands beyond the sierra nevada, the more i was fascinated with the idea of settling there and growing up with it. but i was anxious first to visit, or rather to revisit, europe. i was not able, however, to make the necessary arrangements to do so until the summer of . on the first of may of that year, i dissolved partnership with my brother, and in june started for europe. in the following december, while at galignani's news room in paris, i read in the new york herald the message of president polk, which confirmed previous reports, that gold had been discovered in california, then recently acquired. it is difficult to describe the effect which that message produced upon my mind. i read and re-read it, and the suggestion of my brother to go to that country recurred to me, and i felt some regret that i had not followed it. i remained in europe, however, and carried out my original plan of seeing its most interesting cities, and returned to the united states in , arriving at new york on the st of october of that year. there was already at that early period a steamer leaving that city once or twice every month for chagres. it went crowded every trip. the impulse which had been started in me by my brother in , strengthened by the message of president polk, had now become irresistible. i joined the throng, and on november th, , took passage on the "crescent city;" and in about a week's time, in company with many others, i found myself at the little old spanish-american town of chagres, on the isthmus of panama. there we took small boats and were poled up the river by indians to cruces, at which place we mounted mules and rode over the mountain to panama. there i found a crowd of persons in every degree of excitement, waiting for passage to california. there were thousands of them. those who came on the "crescent city" had engaged passage on the pacific side also; but such was the demand among the multitude at panama for the means of transportation, that some of the steerage passengers sold their tickets from that place to san francisco for $ apiece and took their chances of getting on cheaper. these sales, notwithstanding they appeared at the time to be great bargains, proved, in most cases, to be very unfortunate transactions; for the poor fellows who thus sold their tickets, besides losing their time, exposed themselves to the malaria of an unhealthy coast. there was in fact a good deal of sickness already among those on the isthmus, and many deaths afterwards occurred; and among those who survived there was much suffering before they could get away. the vessel that conveyed us, and by "us" i mean the passengers of the "crescent city," and as many others as could by any possibility procure passage from panama to san francisco was the old steamer "california." she was about one thousand tons burden; but probably no ship of two thousand ever carried a greater number of passengers on a long voyage. when we came to get under way, there did not seem to be any spare space from stem to stern. there were over twelve hundred persons on board, as i was informed.[ ] unfortunately many of them carried with them the seeds of disease. the infection contracted under a tropical sun, being aggravated by hardships, insufficient food, and the crowded condition of the steamer, developed as the voyage proceeded. panama fever in its worst form broke out; and it was not long before the main deck was literally covered with the sick. there was a physician attached to the ship; but unfortunately he was also prostrated. the condition of things was very sad and painful. among the passengers taken sick were two by the name of gregory yale and stephen smith; and i turned myself into a nurse and took care of them. mr. yale, a gentleman of high attainments, and who afterwards occupied a prominent place at the bar of the state, was for a portion of the time dangerously ill, and i believe that but for my attentions he would have died. he himself was of this opinion, and afterwards expressed his appreciation of my attention in every way he could. in the many years i knew him he never failed to do me a kindness whenever an opportunity presented. finally, on the evening of december , , after a passage of twenty-two days from panama, we reached san francisco, and landed between eight and nine o'clock that night. [ ] the first article was entitled "the oregon question," and the second "the edinburgh and foreign quarterly on the oregon question." [ ] note.--the number of passengers reported to the journals of san francisco on the arrival of the steamer was much less than this, probably to avoid drawing attention to the violation of the statute which restricted the number. first experiences in san francisco. upon landing from the steamer, my baggage consisted of two trunks, and i had only the sum of ten dollars in my pocket. i might, perhaps, have carried one trunk, but i could not manage two; so i was compelled to pay out seven of my ten dollars to have them taken to a room in an old adobe building on the west side of what is now known as portsmouth square. this room was about ten feet long by eight feet wide, and had a bed in it. for its occupation the sum of $ a week was charged. two of my fellow-passengers and myself engaged it. they took the bed, and i took the floor. i do not think they had much the advantage on the score of comfort. the next morning i started out early with three dollars in my pocket. i hunted, up a restaurant and ordered the cheapest breakfast i could get. it cost me two dollars. a solitary dollar was, therefore, all the money in the world i had left, but i was in no respect despondent over my financial condition. it was a beautiful day, much like an indian summer day in the east, but finer. there was something exhilarating and exciting in the atmosphere which made everybody cheerful and buoyant. as i walked along the streets, i met a great many persons i had known in new york, and they all seemed to be in the highest spirits. every one in greeting me, said "it is a glorious country," or "isn't it a glorious country?" or "did you ever see a more glorious country?" or something to that effect. in every case the word "glorious" was sure to come out. there was something infectious in the use of the word, or rather in the feeling, which made its use natural. i had not been out many hours that morning before i caught the infection; and though i had but a single dollar in my pocket and no business whatever, and did not know where i was to get the next meal, i found myself saying to everybody i met, "it is a glorious country." the city presented an appearance which, to me, who had witnessed some curious scenes in the course of my travels, was singularly strange and wild. the bay then washed what is now the east side of montgomery street, between jackson and sacramento streets; and the sides of the hills sloping back from the water were covered with buildings of various kinds, some just begun, a few completed,--all, however, of the rudest sort, the greater number being merely canvas sheds. the locality then called happy valley, where mission and howard streets now are, between market and folsom streets, was occupied in a similar way. the streets were filled with people, it seemed to me, from every nation under heaven, all wearing their peculiar costumes. the majority of them were from the states; and each state had furnished specimens of every type within its borders. every country of europe had its representatives; and wanderers without a country were there in great numbers. there were also chilians, sonorians, kanakas from the sandwich islands, and chinese from canton and hong kong. all seemed, in hurrying to and fro, to be busily occupied and in a state of pleasurable excitement. everything needed for their wants; food, clothing, and lodging-quarters, and everything required for transportation and mining, were in urgent demand and obtained extravagant prices. yet no one seemed to complain of the charges made. there was an apparent disdain of all attempts to cheapen articles and reduce prices. news from the east was eagerly sought from all new comers. newspapers from new york were sold at a dollar apiece. i had a bundle of them, and seeing the price paid for such papers, i gave them to a fellow-passenger, telling him he might have half he could get for them. there were sixty-four numbers, if i recollect aright, and the third day after our arrival, to my astonishment he handed me thirty-two dollars, stating that he had sold them all at a dollar apiece. nearly everything else brought a similarly extravagant price. and this reminds me of an experience of my own with some chamois skins. before i left new york, i purchased a lot of stationery and the usual accompaniments of a writing-table, as i intended to practise my profession in california. the stationer, learning from some remark made by my brother cyrus, who was with me at the time, that i intended to go to california, said that i ought to buy some chamois skins in which to wrap the stationery, as they would be needed there to make bags for carrying gold-dust. upon this suggestion, i bought a dozen skins for ten dollars. on unpacking my trunk, in marysville, these chamois skins were of course exposed, and a gentleman calling at the tent, which i then occupied, asked me what i would take for them. i answered by inquiring what he would give for them. he replied at once, an ounce apiece. my astonishment nearly choked me, for an ounce was taken for sixteen dollars; at the mint, it often yielded eighteen or nineteen dollars in coin. i, of course, let the skins go, and blessed the hunter who brought the chamois down. the purchaser made bags of the skins, and the profit to him from their sale amounted to two ounces on each skin. from this transaction, the story arose that i had sold porte-monnaies in marysville before practising law, which is reported in the interesting book of messrs. barry and patten, entitled "men and memories of san francisco in the spring of ." the story has no other foundation. but i am digressing from the narrative of my first experience in san francisco. after taking my breakfast, as already stated, the first thing i noticed was a small building in the plaza, near which a crowd was gathered. upon inquiry, i was told it was the court-house. i at once started for the building, and on entering it, found that judge almond, of the san francisco district, was holding what was known as the court of first instance, and that a case was on trial. to my astonishment i saw two of my fellow-passengers, who had landed the night before, sitting on the jury. this seemed so strange that i waited till the case was over, and then inquired how it happened they were there. they said that they had been attracted to the building by the crowd, just as i had been, and that while looking on the proceedings of the court the sheriff had summoned them. they replied to the summons, that they had only just arrived in the country. but he said that fact made no difference; nobody had been in the country three months. they added that they had received eight dollars each for their services. at this piece of news i thought of my solitary dollar, and wondered if similar good fortune might not happen to me. so i lingered in the court-room, placing myself near the sheriff in the hope that on another jury he might summon me. but it was not my good luck. so i left the temple of justice and strolled around the busy city, enjoying myself with the novelty of everything. passing down clay street, and near kearney street, my attention was attracted by a sign in large letters, "jonathan d. stevenson, gold dust bought and sold here." as i saw this inscription i exclaimed, "hallo, here is good luck," for i suddenly recollected that when i left new york my brother dudley had handed me a note against stevenson for $ or $ ; stating that he understood the colonel had become rich in california, and telling me, that if such were the case, to ask him to pay the note. i had put the paper in my pocket-book and thought no more of it until the sight of the sign brought it to my recollection, and also reminded me of my solitary dollar. of course i immediately entered the office to see the colonel. he had known me very well in new york, and was apparently delighted to see me, for he gave me a most cordial greeting. after some inquiries about friends in new york, he commenced talking about the country. "ah," he continued, "it is a glorious country. i have made two hundred thousand dollars." this was more than i could stand. i had already given him a long shake of the hand but i could not resist the impulse to shake his hand again, thinking all the time of my financial condition. so i seized his hand again and shook it vigorously, assuring him that i was delighted to hear of his good luck. we talked over the matter, and in my enthusiasm i shook his hand a third time, expressing my satisfaction at his good fortune. we passed a long time together, he dilating all the while upon the fine country it was in which to make money. at length i pulled out the note and presented it to him. i shall never forget the sudden change, from wreaths of smiles to an elongation of physiognomy, expressive of mingled surprise and disgust, which came over his features on seeing that note. he took it in his hands and examined it carefully; he turned it over and looked at its back, and then at its face again, and then, as it were, at both sides at once. at last he said in a sharp tone, "that's my signature," and began to calculate the interest; that ascertained, he paid me the full amount due. if i remember rightly he paid me $ in spanish doubloons, but some of it may have been in gold dust. if it had not been for this lucky incident, i should have been penniless before night. the good fortune which the colonel then enjoyed has not always attended him since. the greater part of his property he lost some years afterwards, but he has always retained, and now in his seventy-eighth year[ ] still retains, great energy and vigor of mind, and a manly independence of character, which have made him warm friends. in all the changes of my life his name is pleasantly associated with the payment of the note, and the timely assistance which he thus gave me. his career as commander of the well-known regiment of new york volunteers which arrived in california in march, , and subsequently in the state, are matters of public history. as soon as i found myself in funds i hired a room as an office at the corner of montgomery and clay streets for one month for $ , payable in advance. it was a small room, about fifteen feet by twenty. i then put out my shingle as attorney and counsellor-at-law, and waited for clients; but none came. one day a fellow-passenger requested me to draw a deed, for which i charged him an ounce. he thought that too much, so i compromised and took half an ounce. for two weeks this was the only call i had upon my professional abilities. but i was in no way discouraged. to tell the truth i was hardly fit for business. i was too much excited by the stirring life around me. there was so much to hear and see that i spent half my time in the streets and saloons talking with people from the mines, in which i was greatly interested. i felt sure that there would soon be occasion in that quarter for my services. whilst i was excited over the news which was daily brought from the mines in the interior of the state, and particularly from the northern part, an incident occurred which determined my future career in california. i had brought from new york several letters of introduction to persons who had preceded me to the new country, and among them one to the mercantile firm of simmons, hutchinson & co., of san francisco, upon whom i called. they received me cordially, and inquired particularly of my intentions as to residence and business. they stated that there was a town at the head of river navigation, at the junction of sacramento and feather rivers, which offered inducements to a young lawyer. they called it vernon, and said they owned some lots in it which they would sell to me. i replied that i had no money. that made no difference, they said; they would let me have them on credit; they desired to build up the town and would let the lots go cheap to encourage its settlement. they added that they owned the steamer "mckim," going the next day to sacramento, and they offered me a ticket in her for that place, which they represented to be not far from vernon. accordingly i took the ticket, and on january th, , left for sacramento, where i arrived the next morning. it was the time of the great flood of that year, and the entire upper country seemed to be under water. upon reaching the landing place at sacramento, we took a small boat and rowed to the hotel. there i found a great crowd of earnest and enthusiastic people, all talking about california, and in the highest spirits. in fact i did not meet with any one who did not speak in glowing terms of the country and anticipate a sudden acquisition of fortune. i had already caught the infection myself, and these new crowds and their enthusiasm increased my excitement. the exuberance of my spirits was marvelous. the next day i took the little steamer "lawrence," for vernon, which was so heavily laden as to be only eighteen inches out of water; and the passengers, who amounted to a large number, were requested not to move about the deck, but to keep as quiet as possible. in three or four hours after leaving sacramento, the captain suddenly cried out with great energy, "stop her! stop her!"; and with some difficulty the boat escaped running into what seemed to be a solitary house standing in a vast lake of water. i asked what place that was, and was answered, "vernon,"--the town where i had been advised to settle as affording a good opening for a young lawyer. i turned to the captain and said, i believed i would not put out my shingle at vernon just yet, but would go further on. the next place we stopped at was nicolaus, and the following day we arrived at a place called nye's ranch, near the junction of feather and yuba rivers. no sooner had the vessel struck the landing at nye's ranch than all the passengers, some forty or fifty in number, as if moved by a common impulse, started for an old adobe building, which stood upon the bank of the river, and near which were numerous tents. judging by the number of the tents, there must have been from five hundred to a thousand people there. when we reached the adobe and entered the principal room, we saw a map spread out upon the counter, containing the plan of a town, which was called "yubaville," and a man standing behind it, crying out, "gentlemen, put your names down; put your names down, all you that want lots." he seemed to address himself to me, and i asked the price of the lots. he answered, "two hundred and fifty dollars each for lots by feet." i replied, "but, suppose a man puts his name down and afterwards don't want the lots?" he rejoined, "oh, you need not take them if you don't want them: put your names down, gentlemen, you that want lots." i took him at his word and wrote my name down for sixty-five lots, aggregating in all $ , . this produced a great sensation. to the best of my recollection i had only about twenty dollars left of what col. stevenson had paid me; but it was immediately noised about that a great capitalist had come up from san francisco to invest in lots in the rising town. the consequence was that the proprietors of the place waited upon me and showed me great attention. two of the proprietors were french gentlemen, named covillaud and sicard. they were delighted when they found i could speak french and insisted on showing me the town site. it was a beautiful spot, covered with live-oak trees that reminded me of the oak parks in england, and the neighborhood was lovely. i saw at once that the place, from its position at the head of practical river navigation, was destined to become an important depot for the neighboring mines, and that its beauty and salubrity would render it a pleasant place for residence. in return for the civilities shown me by mr. covillaud, and learning that he read english, i handed him some new york papers i had with me, and among them a copy of the new york "evening post" of november th, , which happened to contain a notice of my departure for california with an expression of good wishes for my success.[ ] the next day mr. covillaud came to me and in an excited manner said: "ah, monsieur, are you the monsieur field, the lawyer from new york, mentioned in this paper?" i took the paper and looked at the notice with apparent surprise that it was marked, though i had myself drawn a pencil line around it, and replied, meekly and modestly, that i believed i was. "well, then," he said, "we must have a deed drawn for our land." upon making inquiries i found that the proprietors had purchased the tract upon which the town was laid out, and several leagues of land adjoining, of general--then captain--john a. sutter, but had not yet received a conveyance of the property. i answered that i would draw the necessary deed; and they immediately dispatched a couple of vaqueros for captain sutter, who lived at hock farm, six miles below, on feather river. when he arrived the deed was ready for signature. it was for some leagues of land; a considerably larger tract than i had ever before put into a conveyance. but when it was signed there was no officer to take the acknowledgment of the grantor, nor an office in which it could be recorded, nearer than sacramento. i suggested to those present on the occasion, that in a place of such fine prospects, and where there was likely in a short time to be much business and many transactions in real property, there ought to be an officer to take acknowledgments and record deeds, and a magistrate for the preservation of order and the settlement of disputes. it happened that a new house, the frame of which was brought in the steamer, was put up that day; and it was suggested by mr. covillaud that we should meet there that evening and celebrate the execution of the deed, and take into consideration the subject of organizing a town by the election of magistrates. when evening came the house was filled. it is true it had no floor, but the sides were boarded up and a roof was overhead, and we improvised seats out of spare planks. the proprietors sent around to the tents for something to give cheer to the meeting, and, strange as it may seem, they found two baskets of champagne. these they secured, and their contents were joyously disposed of. when the wine passed around, i was called upon and made a speech. i started out by predicting in glowing colors the prosperity of the new town, and spoke of its advantageous situation on the feather and yuba rivers; how it was the most accessible point for vessels coming up from the cities of san francisco and sacramento, and must in time become the depot for all the trade with the northern mines. i pronounced the auriferous region lying east of the feather river and north of the yuba the finest and richest in the country; and i felt certain that its commerce must concentrate at the junction of those rivers. but, said i, to avail ourselves of all these advantages we must organize and establish a government, and the first thing to be done is to call an election and choose magistrates and a town council. these remarks met with general favor, and it was resolved that a public meeting should be held in front of the adobe house the next morning, and if it approved of the project, that an election should be held at once. accordingly, on the following morning, which was the th of january, , a public meeting of citizens was there held, and it was resolved that a town government should be established and that there should be elected an ayuntamiento or town council, a first and second alcalde, (the latter to act in the absence or sickness of the former,) and a marshal. the alcalde was a judicial officer under the spanish and mexican laws, having a jurisdiction something like that of a justice of the peace; but in the anomalous condition of affairs in california at that time, he, as a matter of necessity, assumed and exercised very great powers. the election ordered took place in the afternoon of the same day. i had modestly whispered to different persons at the meeting in the new house the night before, that my name was mentioned by my friends for the office of alcalde; and my nomination followed. but i was not to have the office without a struggle; an opposition candidate appeared, and an exciting election ensued. the main objection urged against me was that i was a new comer. i had been there only three days; my opponent had been there six. i beat him, however, by nine votes.[ ] on the evening of the election, there was a general gathering of people at the adobe house, the principal building of the place, to hear the official announcement of the result of the election. when this was made, some one proposed that a name should be adopted for the new town. one man suggested "yubafield," because of its situation on the yuba river; and another, "yubaville," for the same reason. a third, urged the name "circumdoro," (surrounded with gold, as he translated the word,) because there were mines in every direction round about. but there was a fourth, a solid and substantial old man, evidently of kindly domestic affections, who had come out to california to better his fortunes. he now rose and remarked that there was an american lady in the place, the wife of one of the proprietors; that her name was mary; and that, in his opinion, her name ought to be given to the town, and it should be called, in her honor, "marysville." no sooner had he made the suggestion, than the meeting broke out into loud hurrahs; every hat made a circle around its owner's head, and we christened the new town "marysville," without a dissenting voice. for a few days afterwards, the town was called both yubaville and marysville, but the latter name was soon generally adopted, and the place is so called to this day. the lady, in whose honor it was named was mrs. covillaud. she was one of the survivors of the donner party, which suffered so frightfully while crossing the sierra nevadas in the winter of - , and had been living in the country ever since that terrible time. with my notions of law, i did not attach much importance to the election, but i had a certificate of election made out and signed by the inspectors, stating that at a meeting of the residents of the district of yubaville, on the day named, an election for officers had been held, and designating the inspectors who were appointed, the number of votes that had been cast for the office of alcalde, and the number received by myself, and the number received by my opponent, and that as i had received a majority of all the votes cast, i was elected to that office. it was made out with all possible formality, and when completed, was sent to the prefect of the district. this officer, a mr. e.o. crosby, afterwards minister to one of the south american republics, wrote back approving my election, and advising me to act. his advice, under the circumstances, was a matter of some moment. the new constitution of the state had gone into effect, though it was still uncertain whether it would be recognized by congress. mr. crosby, therefore, thought it best for me to procure, in addition to my commission as alcalde, an appointment as justice of the peace; and through his kind offices, i obtained from governor burnett the proper document bearing his official seal. after my election, i went to sacramento, and on the d of january, , was sworn into office as first alcalde of yubaville, by the judge of the court of first instance, as that was the name of the district in the certificate of election; but i was always designated, after the name of the town had been adopted, as first alcalde of marysville.[ ] captain sutter, whose deed i had drawn, was a remarkable character. he was about five feet nine inches in height, and was thick-set. he had a large head and an open, manly face, somewhat hardened and bronzed by his life in the open air. his hair was thin and light, and he wore a mustache. he had the appearance of an old officer of the french army, with a dignified and military bearing. i subsequently became well acquainted with him, and learned both to respect and to pity him. i respected him for his intrepid courage, his gentle manners, his large heart, and his unbounded benevolence. i pitied him for his simplicity, which, while suspecting nothing wrong in others, led him to trust all who had a kind word on their lips, and made him the victim of every sharper in the country. he was a native of switzerland and was an officer in the swiss guards, in the service of the king of france, in , and for some years afterwards. in , he emigrated to america, and had varied and strange adventures among the indians at the west; in the sandwich islands, at fort vancouver, in alaska, and along the pacific coast. in july, , the vessel which he was aboard of, was stranded in the harbor of san francisco. he then penetrated into the interior of california and founded the first white settlement in the valley of the sacramento, on the river of that name, at the mouth of the american river, which settlement he named helvetia. he built a fort there and gathered around it a large number of native indians and some white settlers. in , the mexican government granted to him a tract of land eleven square leagues in extent; and, subsequently, a still larger concession was made to him by the governor of the department. but the governor being afterwards expelled from the country, the concession was held to be invalid. the emigrants arriving in the country after the discovery of gold proved the ruin of his fortunes. they squatted upon his land, denied the validity of his title, cut down his timber, and drove away his cattle. sharpers robbed him of what the squatters did not take, until at last he was stripped of everything; and, finally, he left the state, and for some years has been living with relatives in pennsylvania. even the stipend of $ , , which the state of california for some years allowed him, has been withdrawn, and now in his advanced years, he is almost destitute. yet, in his days of prosperity, he was always ready to assist others. his fort was always open to the stranger, and food, to the value of many thousand dollars, was, every year, so long as he had the means, sent out by him for the relief of emigrants crossing the plains. it is a reproach to california that she leaves the pioneer and hero destitute in his old age. [ ] col. stevenson was born at the commencement of the century, and is therefore now, , in his ninety-fourth year. [ ] see exhibit a, in appendix. [ ] see exhibit b, in appendix. [ ] see exhibit c, in appendix. experiences as alcalde. under the mexican law, alcaldes had, as already stated, a very limited jurisdiction. but in the anomalous condition of affairs under the american occupation, they exercised almost unlimited powers. they were, in fact, regarded as magistrates elected by the people for the sake of preserving public order and settling disputes of all kinds. in my own case, and with the approval of the community, i took jurisdiction of every case brought before me. i knew nothing of mexican laws; did not pretend to know anything of them; but i knew that the people had elected me to act as a magistrate and looked to me for the preservation of order and the settlement of disputes; and i did my best that they should not be disappointed. i let it be known that my election had been approved by the highest authority. the first case i tried was in the street. two men came up to me, one of them leading a horse. he said, "mr. alcalde, we both claim this horse, and we want you to decide which of us is entitled to it." i turned to the man who had the horse, administered an oath to him, and then examined him as to where he got the horse, of whom and when, whether he had a bill of sale, whether there was any mark or brand on the animal, and, in short, put all those questions which would naturally be asked in such a case to elicit the truth. i then administered an oath to the other man and put him through a similar examination, paying careful attention to what each said. when the examination was completed i at once decided the case. "it is very plain, gentlemen," i said, "that the horse belongs to this man (pointing to one of them) and the other must give him up." "but," said the man who had lost and who held the horse, "the bridle certainly belongs to me, he does not take the bridle, does he?" i said, "oh no, the bridle is another matter." as soon as i said this the owner of the bridle turned to his adversary and said, "what will you take for the horse?" "two hundred and fifty dollars," was the instant reply. "agreed," retorted the first, and then turning to me, he continued: "and now, mr. alcalde, i want you to draw me up a bill of sale for this horse which will stick." i, of course, did as he desired. i charged an ounce for trying the case and an ounce for the bill of sale; charges which were promptly paid. both parties went off perfectly satisfied. i was also well pleased with my first judicial experience. soon after my election i went to san francisco to get my effects; and while there i purchased, on credit, a frame house and several zinc houses, which were at once shipped to marysville. as soon as the frame house was put up i opened my office in it, and exercised not only the functions of a magistrate and justice, but also of a supervisor of the town. i opened books for the record of deeds and kept a registry of conveyances in the district. i had the banks of the river graded so as to facilitate the landing from vessels. the marshal of my court, elected at the same time with myself, having refused to act, i appointed an active and courageous person in his place, r.b. buchanan by name, and directed him to see that peace was preserved, and for that purpose to appoint as many deputies as might be necessary. he did so, and order and peace were preserved throughout the district, not only in marysville, but for miles around. as a judicial officer, i tried many cases, both civil and criminal, and i dictated the form of process suited to the exigency. thus, when a complaint was made to me by the owner of a river boat, that the steamer, which plied between marysville and sacramento, had run down his boat, by which a part of its cargo was lost, i at once dictated process to the marshal, in which the alleged injury was recited, and he was directed to seize the steamer, and hold it until further orders, unless the captain or owner gave security to appear in the action commenced by the owner of the boat, and pay any judgment that might be recovered therein. upon service of the process the captain appeared, gave the required security, and the case was immediately tried. judgment was rendered and paid within five hours after the commission of the injury. in civil cases, i always called a jury, if the parties desired one; and in criminal cases, when the offence was of a high grade, i went through the form of calling a grand jury, and having an indictment found; and in all cases i appointed an attorney to represent the people, and also the accused, when necessary. the americans in the country had a general notion of what was required for the preservation of order and the due administration of justice; and as i endeavored to administer justice promptly, but upon a due consideration of the rights of every one, and not rashly, i was sustained with great unanimity by the community. i have reported a civil case tried before me as alcalde. i will now give a few criminal prosecutions and their circumstances. one morning, about five o'clock, a man tapped at my window, and cried, "alcalde, alcalde, there has been a robbery, and you are wanted." i got up at once, and while i was dressing he told his story. nearly every one in those days lived in a tent and had his gold dust with him. the man, who proved to be gildersleeve, the famous runner, upon going to bed the previous evening had placed several pounds of gold dust in his trunk, which was not locked. in the night some one had cut through his tent and taken the gold dust. i asked him if he suspected anybody; and he named two men, and gave such reasons for his suspicion that i immediately dictated a warrant for their arrest; and in a short time the two men were arrested and brought before me. the gold dust was found on one of them. i immediately called a grand jury, by whom he was indicted. i then called a petit jury, and assigned counsel for the prisoner. he was immediately placed upon his trial, and was convicted. the whole proceeding occupied only a part of the day. there was a great crowd and much excitement, and some talk of lynching. curiously enough, my real trouble did not commence until after the conviction. what was to be done with the prisoner? how was he to be punished? imposing a fine would not answer; and, if he had been discharged, the crowd would have immediately hung him. when at san francisco, mayor geary, of that place, told me if i would send my convicts to him, with money enough to pay for a ball and chain for each one, he would put them in the chain-gang. but at that time the price of passage by steamer from marysville to san francisco was fifty dollars, which, with the expense of an officer to accompany the prisoner, and the price of a ball and chain, would have amounted to a much larger sum than the prosecution could afford; so it was clearly impracticable to think of sending him to san francisco. nor is it at all likely that the people would have consented to his removal. under these circumstances there was but one course to pursue, and, however repugnant it was to my feelings to adopt it, i believe it was the only thing that saved the man's life. i ordered him to be publicly whipped with fifty lashes, and added that if he were found, within the next two years, in the vicinity of marysville, he should be again whipped. i, however, privately ordered a physician to be present so as to see that no unnecessary severity was practiced. in accordance with this sentence, the fellow was immediately taken out and flogged; and that was the last seen of him in that region. he went off and never came back. the latter part of the sentence, however, was supererogatory; for there was something so degrading in a public whipping, that i have never known a man thus whipped who would stay longer than he could help, or ever desire to return. however this may have been, the sense of justice of the community was satisfied. no blood had been shed; there had been no hanging; yet a severe public example had been given. on another occasion a complaint was made that a man had stolen fifteen hundred dollars from a woman. he was arrested, brought before me, indicted, tried, and convicted. i had the same compunctions about punishment as before, but, as there was no other course, i ordered him to receive fifty lashes on his back on two successive days, unless he gave up the money, in which case he was to receive only fifty lashes. as soon as the sentence was written down the marshal marched the prisoner out to a tree, made him hug the tree, and in the presence of the crowd that followed, began inflicting the lashes. the man stood it for awhile without flinching, but when he had received the twenty-second lash he cried out, "stop, for god's sake, and i will tell you where the money is." the marshal stopped and, accompanied by the crowd, took the man to the place indicated, where the money was recovered; and the thief was then made to carry it back to the woman and apologize for stealing it. the marshal then consulted the sentence, and, finding that it prescribed fifty lashes at any rate, he marched the wretch back to the tree and gave him the balance, which was his due. but the case which made the greatest impression upon the people, and did more to confirm my authority than anything else, was the following: there was a military encampment of united states soldiers on bear river, about fifteen miles from marysville, known as "camp far west." one day an application was made to me to issue a warrant for the arrest of one of the soldiers for a larceny he had committed. it was stated that a complaint had been laid before the local alcalde near the camp; but that the officer in charge had refused to give up the soldier unless a warrant for that purpose were issued by me, it being the general impression that i was the only duly commissioned alcalde in the district above sacramento. on this showing i issued my warrant, and a lieutenant of the army brought the soldier over. the soldier was indicted, tried, convicted, and sentenced to be publicly whipped with the usual number of lashes, and the officer stood by and saw the punishment inflicted. he then took the soldier back to camp, where it was afterwards reported that he received an additional punishment. but before the lieutenant left me that day, and while we were dining together, he took occasion to say that, if at any time i had any trouble in enforcing the law, i had but to send him word and he would order out a company of troops to support me. this offer i permitted to become known through the town; and people said--and with what effect may be imagined--"why here is an alcalde that has the troops of the united states at his back." i have already stated that i had the banks of the yuba river graded so as to facilitate the landing from vessels. i will now mention another instance of my administration as general supervisor of the town. there were several squatters on the landing at the river, which, according to the plan of the town, was several hundred feet wide. the lots fronting on this landing being the best for business, commanded the highest prices. but on account of the squatters the owners were deprived of the benefit of the open ground of the landing in front of their property, and they complained to me. i called upon the squatters and told them that they must leave, and that if they were not gone by a certain time, i should be compelled to remove them by force, and, if necessary, to call to my aid the troops of the united states. this was enough; the squatters left, the landing was cleared, and business went on smoothly. in addition to my ordinary duties as a judicial officer and as general supervisor of the town, i acted as arbitrator in a great number of controversies which arose between the citizens. in such cases the parties generally came to my office together and stated that they had agreed to leave the matter in dispute between them to my decision. i immediately heard their respective statements--sometimes under oath, and sometimes without oath--and decided the matter at once. the whole matter was disposed of without any written proceedings, except in some instances i gave to parties a memorandum of my decision. thus on one occasion a dispute arose as to the rate of wages, between several workmen and their employer; the workmen insisting upon twelve dollars a day and the employer refusing to give more than ten. to settle the dispute they agreed to leave the matter to me. i heard their respective statements, and after stating that both of them ought to suffer a little for not having made a specific contract at the outset, decided that the workingmen should receive eleven dollars a day, with which both appeared to be well satisfied. on another occasion parties disputed as to whether freight on a box of crockery should be charged by measurement or by weight, a specific contract having been made that all articles shipped by the owner should be carried at a fixed price per hundred pounds. they agreed to leave the matter to my determination, and i settled it in five minutes. again, on one occasion a woman, apparently about fifty-six, rushed into my office under great excitement, exclaiming that she wanted a divorce from her husband, who had treated her shamefully. a few moments afterwards the husband followed, and he also wanted relief from the bonds of matrimony. i heard their respective complaints, and finding that they had children, i persuaded them to make peace, kiss, and forgive; and so they left my office arm-in-arm, each having promised the other never to do so again, amid the applause of the spectators. in this way i carried out my conception of the good cadi of the village, from which term (al cadi) my own official designation, alcalde, was derived. to make a long story short, until i was superseded by officers under the state government, i superintended municipal affairs and administered justice in marysville with success. whilst there was a large number of residents there of high character and culture, who would have done honor to any city, there were also unfortunately many desperate persons, gamblers, black-legs, thieves, and cut-throats; yet the place was as orderly as a new england village. there were no disturbances at night, no riots, and no lynching. it was the model town of the whole country for peacefulness and respect for law. and now a word about my speculations. in a short time after going to marysville and writing my name down for sixty-five town lots, property increased ten-fold in value. within ninety days i sold over $ , worth, and still had most of my lots left. my frame and zinc houses brought me a rental of over $ , a month. the emoluments of my office of alcalde were also large. in criminal cases i received nothing for my services as judge, and in civil cases the fees were small; but as an officer to take acknowledgments and affidavits and record deeds, the fees i received amounted to a large sum. at one time i had $ , in gold dust in my safe, besides the rentals and other property. one day whilst i was alcalde, a bright-looking lad, with red cheeks and apparently about seventeen years of age, came into the office and asked if i did not want a clerk. i said i did, and would willingly give $ a month for a good one; but that i had written to sacramento and was expecting one from there. the young man suggested that perhaps the one from sacramento would not come or might be delayed, and he would like to take the place in the meanwhile. i replied, very well, if he was willing to act until the other arrived, he might do so. and thereupon he took hold and commenced work. three days afterwards the man from sacramento arrived; but in the meanwhile i had become so much pleased with the brightness and quickness of my young clerk that i would not part with him. that young clerk was george c. gorham, the present secretary of the united states senate. i remember him distinctly as he first appeared to me, with red and rosy cheeks. his quickness of comprehension was really wonderful. give him half an idea of what was wanted, and he would complete it as it were by intuition. i remember on one occasion he wanted to know what was necessary for a marriage settlement. i asked him why. he replied that he had been employed by a french lady to prepare such a settlement, and was to receive twenty-five dollars for the instrument. i gave him some suggestions, but added that he had better let me see the document after he had written it. in a short time afterwards he brought it to me, and i was astonished to find it so nearly perfect. there was only one correction to make. and thus ready i always found him. with the most general directions he would execute everything committed to his charge, and usually with perfect correctness. he remained with me several months, and acted as clerk of my alcalde court, and years afterwards, at different times was a clerk in my office. when i went upon the bench of the supreme court, i appointed him clerk of the circuit court of the united states for the district of california, and, with the exception of the period during which he acted as secretary of gov. low, he remained as such clerk until he was nominated for the office of governor of the state, when he resigned. through the twenty-seven years of our acquaintance, from to the present time, july, , his friendship and esteem have been sincere and cordial, which no personal abuse of me could change and no political differences between us could alienate. his worldly possessions would have been more abundant had he pursued the profession of the law, which i urged him to do; and his success as a public man would have been greater, had he been more conciliatory to those who differed from him in opinion. the turner controversy. towards the end of may, , william e. turner, who had been appointed judge of the eighth judicial district of the state by the first legislature which convened under the constitution, made his appearance and announced that he intended to open the district court at marysville on the first monday of the next month. we were all pleased with the prospect of having a regular court and endeavored, as far as lay in our power, to make the stay of the judge with us agreeable. i had been in the habit of receiving a package of new york newspapers by every steamer, and among them came copies of the new york "evening post," which was at that time the organ of the so-called free-soil party. when judge turner arrived, i waited on him to pay my respects, and sent him the various newspapers i had received. he had lived for years in texas, and, as it proved, was a man of narrow mind and bitter prejudices. he seems to have had a special prejudice against new yorkers and regarded a free-soiler as an abomination. i have been told, and i believe such to be the fact, that my sending him these newspapers, and particularly the "evening post," led him to believe that i was an "abolitionist"--a person held in special abhorrence in those days by gentlemen from the south. at any rate he conceived a violent dislike of me, which was destined in a short time to show itself and cause me great annoyance. what was intended on my part as an act of courtesy, turned out to be the beginning of a long, bitter, and on his part, ferocious quarrel. at that time my affairs were in a very prosperous condition, as i have already stated. i had $ , in gold dust, a rental of over a thousand dollars a month, and a large amount of city property constantly increasing in value. such being the case, i thought i would go east on a visit, and accordingly began making arrangements to leave. but shortly before the opening of the june term of the district court, captain sutter came to me and told me he had been sued by a man named cameron, and wished me to appear as his counsel. i answered that i was making arrangements to go east and he had better retain some one else. he replied that i ought to remain long enough to appear for him and assist his attorney, and begged of me as an act of friendship to do so. i finally consented, and deferred my departure. soon after the opening of the court, some time during the first week, the case of captain sutter was called. a preliminary motion, made by his attorney, was decided against him. mr. jesse o. goodwin, a member of the bar, sitting near, said to me that the practice act, passed at the recent session of the legislature, contained a section bearing upon the question; and at the same time handed me the act. i immediately rose, and addressing the court, remarked that i was informed there was a statutory provision applicable to the point, and begged permission to read it; and commenced turning over the pages of the act in search of it, when judge turner, addressing me and apparently irritated, said in a petulant manner;--"the court knows the law--the mind of the court is made up--take your seat, sir." i was amazed at hearing such language; but in a respectful and quiet manner stated that i excepted to the decision, and appealed, or would appeal from the order. the judge instantly replied, in a loud and boisterous manner, "fine that gentleman two hundred dollars." i replied quietly, "very well," or "well, sir." he immediately added, in an angry tone, "i fine him three hundred dollars, and commit him to the custody of the sheriff eight hours." i again replied, "very well." he instantly exclaimed, in the same violent manner, "i fine him four hundred dollars and commit him twelve hours." i then said that it was my right by statute to appeal from any order of his honor, and that it was no contempt of court to give notice of an exception or an appeal, and asked the members of the bar present if it could be so regarded. but the judge, being very ignorant of the practice of the law, regarded an exception to his decision as an impeachment of his judgment, and, therefore, something like a personal affront. and so, upon my statement, he flew into a perfect rage, and in a loud and boisterous tone cried out, "i fine him five hundred dollars and commit him twenty-four hours--forty-eight hours--turn him out of court--subpoena a posse--subpoena me." i then left the court-room. the attorney in the case accompanied me, and we were followed by the deputy sheriff. after going a few steps we met the coroner, to whom the deputy sheriff transferred me; and the coroner accompanied me to my office, and after remaining there a few moments left me to myself. on the way an incident occurred, which probably inflamed judge turner against me more than anything else that could have happened. the attorney, who was much exasperated at the conduct of the judge, said to me as we met the coroner, "never mind what the judge does; he is an old fool." i replied, "yes, he is an old jackass." this was said in an ordinary conversational tone; but a man by the name of captain powers, with whom turner boarded, happened to overhear it, and running to the court-house, and opening the door, he hallooed out, "judge turner! oh, judge turner! judge field says you are an old jackass." a shout followed, and the judge seemed puzzled whether or not he should send an officer after me, or punish his excitable friend for repeating my language. i remained in my office the remainder of the day, and many people who were present in court, or heard of what had occurred, called to see me. i immediately wrote out a full statement of everything that happened in the court-room, and had it verified by a number of persons who were eye and ear witnesses of the affair. towards evening the deputy sheriff met the judge, who asked him what he had done with me. the deputy answered that i had gone to my office and was still there. the judge said, "go and put him under lock and key, and, if necessary, put him in irons." the deputy came to me and said, "the judge has sent me to put you under lock and key; let me turn the key upon you in your own office." at this i became indignant, and asked for his warrant or commitment to hold me. he replied that he had none, that only a verbal order was given to him by the judge in the street. i then told him he must go away from me and leave me alone. he replied that, "as he was acting by the orders of the sheriff, whose deputy he was, in obeying the judge, he must do as he had been directed." he added, "i will lock the door anyway," and doing so he went off. i immediately sued out a writ of habeas corpus returnable before henry p. haun, the county judge. the writ was executed forthwith, and the same evening i was taken before the judge. there was a great crowd present. i called the sheriff to the stand and asked him if he had any writ, process, commitment, or order by which he held me in custody. he replied that he had none. i then put on the stand samuel b. mulford and jesse o. goodwin and several others, who were present in the district court where the scenes narrated had occurred, and they testified that there was nothing disrespectful in my language or manner; that i had not used an expression at which anybody could justly take offence; and that they had been utterly surprised at the conduct of the judge, which was violent and tyrannical; and that they saw no possible excuse for it. this testimony was of course of no consequence on the question presented by the habeas corpus; because, as there was no order or warrant for my arrest in the possession of the officer, i could not, under any circumstances, be held; but i wished to show my friends, who had not been present in the court-room, the facts of the case. i was of course at once discharged. but the matter did not end there. an excited crowd was present, and as i left the court-room they cheered enthusiastically. i thereupon invited them to the covillaud house, a public house in the town, and directed the keeper to dispense to them the good things of his bar. the champagne was accordingly uncorked without stint, and the best havana boxes were soon emptied of their most fragrant cigars. a bill of $ paid the next day settled the account. whilst the boys were thus enjoying themselves, judge turner, who was not far off, entered the covillaud house, perfectly furious, and applied obscene and vile epithets to the county judge, declaring with an oath that he would teach "that fellow" that he was an inferior judge, and that the witnesses before him were a set of "perjured scoundrels" who should be expelled from the bar. similar threats were made by him in different saloons in the town, to the disgust of every one. that evening he was burned in effigy in the public plaza. i had nothing to do with that act, and did not approve of it. i did not know then, and do not know to this day who were engaged in it. he attributed it to me, however, and his exasperation towards me in consequence became a malignant fury. on the monday following, june th, which was the first day on which the court was held after the scenes narrated, judge turner, on the opening of the court, before the minutes of the previous session were read, and without notice to the parties, or any hearing of them, although they were present at the time, ordered that judge haun be fined fifty dollars and be imprisoned forty-eight hours for his judicial act in discharging me from arrest, under some pretence that the order of the court had been thus obstructed by him. at the same time he ordered that i should be re-imprisoned, and that mr. mulford, mr. goodwin, and myself should be expelled from the bar; myself for suing out the writ, and those two gentlemen for being witnesses on its return, under the pretence that we had "vilified the court and denounced its proceedings." judge haun paid his fine and left the court-room, and i was again taken into custody by the sheriff.[ ] it happened to be the day appointed by law for the opening of the court of sessions of the county, over which the county judge presided. judge haun proceeded from the district court to the room engaged for the court of sessions, and there, in connection with an associate justice, opened that court. immediately afterwards i sued out another writ of _habeas corpus_, returnable forthwith, and whilst before the court arguing for my discharge under the writ, the sheriff entered and declared his intention of taking me out of the room, and of taking judge haun from the bench and putting us in confinement, pursuant to the order of judge turner. judge haun told the sheriff that the court of sessions was holding its regular term; that he was violating the law, and that the court must not be disturbed in its proceedings. judge turner was then informed that the court of sessions was sitting; that judge haun was on the bench, and that i was arguing before the court on a writ of habeas corpus. judge turner immediately ordered a posse to be summoned and appealed to gentlemen in the court-room to serve on it, and directed the sheriff to take judge haun and myself into custody by force, notwithstanding judge haun was on the bench, and i was arguing my case; and if necessary to put judge haun in irons--to handcuff him. soon afterwards the sheriff, with a posse, entered the room of the court of sessions, and forced me out of it, and was proceeding to seize judge haun on the bench, when the judge stepped to a closet and drew from it a navy revolver, cocked it, and, pointing it towards the sheriff, informed him in a stern manner that he was violating the law; that whilst on the bench he, the judge, could not be arrested, and that if the sheriff attempted to do so he would kill him. at the same time he fined the sheriff for contempt of court $ , and appointed a temporary bailiff to act, and directed him to clear the court-room of the disturbers. the new bailiff summoned all the bystanders, who instantly responded, and the court-room was immediately cleared. judge haun then laid his revolver on a drawer before him, and inquired if there was any business ready; for if so the court would hear it. there being none, the court adjourned. i regret to be compelled to add, that notwithstanding the manly and courageous conduct which judge haun had thus shown, no sooner was the court adjourned than he was persuaded to make a qualified apology to the district court for discharging me, by sending a communication to it, stating "that if he was guilty of obstructing the order of the court in releasing field, he did it ignorantly, not intending any contempt by so doing;" and thereupon the district court ordered that he be released from confinement, and that his fine be remitted.[ ] of course there was great excitement through the town as soon as these proceedings became known. that night nearly all marysville came to my office. i made a speech to the people. afterwards some of them passed in front of turner's house, and gave him three groans. they then dispersed, and in returning home some of them fired off their pistols as a sort of finale to the proceedings of the evening. the firing was not within three hundred yards of turner's house; but he seized hold of the fact of firing, and stated that he had been attacked in his house by an armed mob. he also charged that i had instigated the crowd to attack him, but the facts are as i have stated them. there was a great deal of feeling on the part of the people, who generally sided with me; but i did nothing to induce them to violate the law or disturb the peace. even if i wished to do so, prudence and policy counselled otherwise. when turner caused the names of mulford, goodwin, and myself, to be stricken from the roll of attorneys, we, of course, could no longer appear as counsel in his court. i at once prepared the necessary papers, and applied to the supreme court of the state for a mandamus to compel him to vacate the order and reinstate us. i took the ground that an attorney and counsellor, by his admission to the bar, acquired rights of which he could not be arbitrarily deprived; that he could not, under any circumstances, be expelled from the bar without charges being preferred against him and an opportunity afforded to be heard in his defence; that the proceedings of judge turner being ex-parte, without charges preferred, and without notice, were void; and that a mandate, directing him to vacate the order of expulsion and restore us to the bar, ought to be issued immediately. in addition, to this application, i also moved for a mandamus to him to vacate the order imposing a fine and imprisonment upon me for the alleged contempt of his court, or for such other order in the premises as might be just. i took the ground, that as the order did not show any act committed which could constitute a contempt of court, it was void on its face, and should be so declared. my old friend, gregory yale, assisted me in the presentation of these motions. in deciding them, the court delivered two opinions, in which these positions were sustained. they are reported under the titles of people, ex rel. mulford et al., vs. turner, cal., ; and people, ex rel. field vs. turner, cal., . in the first case, a peremptory writ of mandamus was issued, directed to judge turner, ordering him to reinstate us as attorneys; in the second, a writ of certiorari was issued to bring up the order imposing a fine, which was subsequently reversed and vacated, as shown in ex-parte field, cal., . the opinions referred to were delivered by judge bennett, and are models of their kind. many years afterwards, when a somewhat similar question came before the supreme court of the united states, i was called upon to announce its judgment; and in doing so, i followed these opinions, as may be seen by reference to the case of ex-parte robinson, wallace, . i there repeated substantially the doctrine of judge bennett, which is the only doctrine that will protect an attorney and counsellor from the tyranny of an arbitrary and capricious officer, and preserve to him his self-respect and independence. when the order for our restoration came down from the supreme court, turner refused to obey it; and wrote a scurrilous "address to the public" about us, which he published in one of the newspapers. we replied in a sharp and bitter article, signed by ourselves and five other gentlemen; and at the same time we published a petition to the governor, signed by all the prominent citizens of marysville, asking for judge turner's removal. there was a general impression in those days that judges appointed before the admission of the state into the union held their offices subject to removal by the governor. i hardly know how this impression originated, but probably in some vague notions about the powers of mexican governors. however this may be, such was the general notion, and in accordance with it, a petition for turner's removal was started, and, as i have said, was very generally signed.[ ] the matter had by this time assumed such a serious character, and the judge's conduct was so atrocious, that the people became alarmed and with great unanimity demanded his deposition from office. in the article referred to as published by us, we said, after setting forth the facts, that "judge turner is a man of depraved tastes, of vulgar habits, of an ungovernable temper, reckless of truth when his passions are excited, and grossly incompetent to discharge the duties of his office." unfortunately the statement was perfectly true. he refused to obey the mandate of the supreme court, even talked of setting that court at defiance, and went around saying that every one who had signed an affidavit against him was a "perjured villain," and that as to goodwin, mulford, and field, he would "cut their ears off." he frequented the gambling saloons, associated with disreputable characters, and was addicted to habits of the most disgusting intoxication. besides being abusive in his language, he threatened violence, and gave out that he intended to insult me publicly the first time we met, and that, if i resented his conduct, he would shoot me down on the spot. this being reported to me by various persons, i went to san francisco and consulted judge bennett as to what course i ought to pursue. judge bennett asked if i were certain that he had made such a threat. i replied i was. "well," said the judge, "i will not give you any advice; but if it were my case, i think i should get a shot-gun and stand on the street, and see that i had the first shot." i replied that "i could not do that; that i would act only in self-defence." he replied, "that would be acting in self-defence." when i came to california, i came with all those notions, in respect to acts of violence, which are instilled into new england youth; if a man were rude, i would turn away from him. but i soon found that men in california were likely to take very great liberties with a person who acted in such a manner, and that the only way to get along was to hold every man responsible, and resent every trespass upon one's rights. though i was not prepared to follow judge bennett's suggestion, i did purchase a pair of revolvers and had a sack-coat made with pockets in which the barrels could lie, and be discharged; and i began to practice firing the pistols from the pockets. in time i acquired considerable skill, and was able to hit a small object across the street. an object so large as a man i could have hit without difficulty. i had come to the conclusion that if i had to give up my independence; if i had to avoid a man because i was afraid he would attack me; if i had to cross the street every time i saw him coming, life itself was not worth having. having determined neither to seek him nor to shun him, i asked a friend to carry a message to him, and to make sure that it would reach him, i told different parties what i had sent, and i was confident that they would repeat it to him. "tell him from me," i said, "that i do not want any collision with him; that i desire to avoid all personal difficulties; but that i shall not attempt to avoid him; that i shall not cross the street on his account, nor go a step out of my way for him; that i have heard of his threats, and that if he attacks me or comes at me in a threatening manner i will kill him."[ ] i acted on my plan. i often met him in the streets and in saloons, and whenever i drew near him i dropped my hand into my pocket and cocked my pistols to be ready for any emergency. people warned me to look out for him; to beware of being taken at a disadvantage; and i was constantly on my guard. i felt that i was in great danger; but after awhile this sense of danger had a sort of fascination, and i often went to places where he was, to which i would not otherwise have gone. whenever i met him i kept my eye on him, and whenever i passed him on the street i turned around and narrowly watched him until he had gone some distance. i am persuaded if i had taken any other course, i should have been killed. i do not say turner would have deliberately shot me down, or that he would have attempted anything against me in his sober moments; but when excited with drink, and particularly when in the presence of the lawless crowds who heard his threats, it would have taken but little to urge him on. as it turned out, however, he never interfered with me, perhaps because he knew i was armed and believed that, if i were attacked, somebody, and perhaps more than one, would be badly hurt. i have been often assured by citizens of marysville that it was only the seeming recklessness of my conduct, and the determination i showed not to avoid him or go out of his way, that saved me. but at the same time my business was ruined. not only was i prevented, by his refusal to obey the mandate of the supreme court, from appearing as an advocate, but i could not, on account of the relation i occupied towards him, practice at all; nor could i, under the circumstances, leave marysville and make my intended visit east. having nothing else to do, i went into speculations which failed, and in a short time--a much shorter time than it took to make my money--i lost nearly all i had acquired and became involved in debt. [ ] see exhibit d, in appendix. [ ] see exhibit e, in appendix. [ ] see exhibit f, in appendix. [ ] see exhibit g, in appendix. running for the legislature. one morning about this time i unexpectedly found myself in the newspapers, nominated by my friends as a candidate for the lower house of the legislature. who the friends were that named me i did not know; but the nomination opened a new field and suggested new ideas. i immediately accepted the candidacy. judge turner had threatened, among other things, to drive me into the yuba river. i now turned upon him, and gave out that my object in wishing to go to the legislature was to reform the judiciary, and, among other things, to remove him from the district. i canvassed the county thoroughly and was not backward in portraying him in his true colors. he and his associates spared no efforts to defeat me. their great reliance consisted in creating the belief that i was an abolitionist. if that character could have been fastened upon me it would have been fatal to my hopes, for it was a term of great reproach. yuba county then comprised the present county of that name, and also what are now nevada and sierra counties. it was over a hundred miles in length and about fifty in width, and had a population of twenty-five thousand people, being the most populous mining region in the state. i visited nearly every precinct and spoke whenever i could get an audience. an incident of the canvass may not be uninteresting. i went to the town of nevada a little more than a week before the election. as i was riding through its main street a gentleman whom i had long known, general john anderson, hailed me, and, after passing a few words, said, "field, you won't get fifty votes here." i asked, "why not?" he replied, "because everybody is for mccarty, your opponent." i said, somewhat sharply, "anderson, i have come here to fight my own battle and i intend to carry nevada." he laughed and i rode on. the first man i met after reaching the hotel was captain morgan, who afterwards commanded a steamer on the bay of san francisco. after talking for some time on general topics, he asked me about a story in circulation that i was an abolitionist. i saw at once the work of enemies, and i now understood the meaning of general anderson's remark. i assured morgan that the story was entirely false, and added; "to-morrow will be sunday; everybody will be in town; i will then make a speech and show the people what kind of a man i am, and what my sentiments are on this and other subjects." accordingly, the next day, in the afternoon, when the miners from the country were in town and had nothing else to do than to be amused, i mounted a platform erected for the purpose in the main street, and commenced speaking. i soon had a crowd of listeners. i began about my candidacy, and stated what i expected to do if elected. i referred to the necessity of giving greater jurisdiction to the local magistrates, in order that contests of miners respecting their claims might be tried in their vicinity. as things then existed the right to a mule could not be litigated without going to the county seat, at a cost greater than the value of the animal. i was in favor of legislation which would protect miners in their claims, and exempt their tents, rockers, and utensils used in mining from forced sale. i was in favor of dividing the county, and making nevada the seat of the new county. i had heard of numerous measures they wanted, and i told them how many of these measures i advocated. having got their attention and excited their interest, i referred to the charge made against me of being an abolitionist, and denounced it as a base calumny. in proof of the charge i was told that i had a brother in new york who was a free-soiler. so i had, i replied, and a noble fellow he is--god bless him wherever he may be. but i added, i have another brother who is a slaveholder in tennessee, and with which one, i asked, in the name of all that is good, were they going to place me. i wondered if these "honorable" men, who sought by such littleness to defeat me, did not find out whether i did not have some other relatives,--women, perhaps, who believed in things unearthly and spiritual,--whose opinions they could quote to defeat me. shame on such tactics, i said, and the crowd answered by loud cheering. i then went on to give my views of our government, of the relation between the general government of the union and the government of the states, to show that the former was created for national purposes which the states could not well accomplish--that we might have uniformity of commercial regulations, one army and one navy, a common currency, and the same postal system, and present ourselves as one nation to foreign countries--but that all matters of domestic concern were under the control and management of the states, with which outsiders could not interfere; that slavery was a domestic institution which each state must regulate for itself, without question or interference from others. in other words, i made a speech in favor of state rights, which went home to my hearers, who were in great numbers from the south. i closed with a picture of the future of california, and of the glories of a country bounded by two oceans. when i left the platform the cheers which followed showed that i had carried the people with me. mccarty, my opponent, followed, but his speech fell flat. half his audience left before he had concluded. the election took place a week from the following monday. i remained in nevada until it was over. at the precinct in town where i had spoken, i had between three and four hundred majority, and in another precinct in the outskirts i had a majority of two to one. in the county generally i ran well, and was elected, notwithstanding the fact that i was not the nominee of any convention or the candidate of any party. the morning following the election, as i was leaving nevada, i rode by the store of general anderson, and hailing him, inquired what he thought now of my getting fifty votes in the town. "well," he replied, "it was that sunday speech of yours which did the business. mccarty could not answer it." there was one thing in the election which i regretted, and that was that i did not carry marysville; a majority of the votes of its citizens was cast for my opponent. it is true that there the greater number of gamblers and low characters of the county were gathered, but the better class predominated in numbers, and i looked with confidence to its support. my regret, however, was sensibly diminished when i learned the cause of the failure of a portion of the people to give me their votes. some few weeks previous to the day of election a man was killed in the street by a person by the name of keiger, who was immediately arrested. the person killed was about leaving the state, and owed a small debt to keiger, which he refused either to pay or to give security for its payment. exasperated by his refusal, keiger drew a pistol and shot him. i was sent for by an acquaintance of keiger to attend his examination before the local magistrate, by whom he was held for the action of the grand jury. in the afternoon of the same day a large crowd assembled in the streets, with the purpose of proceeding to the summary execution of keiger. whilst the people were in a great state of excitement i made a speech to them, begging them not to resort to violence and thus cast reproach upon the good name of marysville, but to let the law take its course, assuring them that justice would certainly be administered by the courts. my remarks were received with evident displeasure, and i am inclined to think that violence would have been resorted to had not the prisoner been secretly removed from the city and taken to sacramento. the exasperation of a large number, at this escape of their intended victim, vented itself on me, and cost me at least a hundred votes in the city. i would not have acted otherwise had i known beforehand that such would be the result of my conduct. when the civil tribunals are open and in the undisturbed exercise of their jurisdiction, a resort to violence can never be approved or excused. i witnessed some strange scenes during the campaign, which well illustrated the anomalous condition of society in the county. i will mention one of them. as i approached grass valley, then a beautiful spot among the hills, occupied principally by mr. walsh, a name since become familiar to californians, i came to a building by the wayside, a small lodging-house and drinking-saloon, opposite to which a lynch jury were sitting, trying a man upon a charge of stealing gold dust. i stopped and watched for awhile the progress of the trial. on an occasion of some little delay in the proceedings, i mentioned to those present, the jury included, that i was a candidate for the legislature, and that i would be glad if they would join me in a glass in the saloon, an invitation which was seldom declined in those days. it was at once accepted, and leaving the accused in the hands of an improvised constable, the jury entered the house and partook of the drinks which its bar afforded. i had discovered, or imagined from the appearance of the prisoner, that he had been familiar in other days with a very different life from that of california, and my sympathies were moved towards him. so, after the jurors had taken their drinks and were talking pleasantly together, i slipped out of the building and approaching the man, said to him, "what is the case against you? can i help you?" the poor fellow looked up to me and his eyes filled with great globules of tears as he replied. "i am innocent of all i am charged with. i have never stolen anything nor cheated any one; but i have no one here to befriend me." that was enough for me. those eyes, filled as they were, touched my heart. i hurried back to the saloon; and as the jurors were standing about chatting with each other i exclaimed, "how is this? you have not had your cigars? mr. bar-keeper, please give the gentlemen the best you have; and, besides, i added, let us have another 'smile'--it is not often you have a candidate for the legislature among you." a laugh followed, and a ready acceptance was given to the invitation. in the meantime my eyes rested upon a benevolent-looking man among the jury, and i singled him out for conversation. i managed to draw him aside and inquired what state he came from. he replied, from connecticut. i then asked if his parents lived there. he answered, with a faltering voice, "my father is dead; my mother and sister are there." i then said, "your thoughts, i dare say, go out constantly to them; and you often write to them, of course." his eyes glistened, and i saw pearl-like dew-drops gathering in them; his thoughts were carried over the mountains to his old home. "ah, my good friend," i added "how their hearts must rejoice to hear from you." then, after a short pause, i remarked, "what is the case against your prisoner? he, too, perhaps, may have a mother and sister in the east, thinking of him as your mother and sister do of you, and wondering when he will come back. for god's sake remember this." the heart of the good man responded in a voice which, even to this day--now nearly twenty-seven years past--sounds like a delicious melody in my ears: "i will do so." passing from him i went to the other jurors, and, finding they were about to go back to the trial, i exclaimed, "don't be in a hurry, gentlemen, let us take another glass." they again acceded to my request, and seeing that they were a little mellowed by their indulgence, i ventured to speak about the trial. i told them that the courts of the state were organized, and there was no necessity or justification now for lynch juries; that the prisoner appeared to be without friends, and i appealed to them, as men of large hearts, to think how they would feel if they were accused of crime where they had no counsel and no friends. "better send him, gentlemen, to marysville for trial, and keep your own hands free from stain." a pause ensued; their hearts were softened; and, fortunately, a man going to marysville with a wagon coming up at this moment, i prevailed upon them to put the prisoner in his charge to be taken there. the owner of the wagon consenting, they swore him to take the prisoner to that place and deliver him over to the sheriff; and to make sure that he would keep the oath, i handed him a "slug," a local coin of octagonal form of the value of fifty dollars, issued at that time by assayers in san francisco. we soon afterwards separated. as i moved away on my horse my head swam a little, but my heart was joyous. of all things which i can recall of the past, this is one of the most pleasant. i believe i saved the prisoner's life; for in those days there was seldom any escape for a person tried by a lynch jury. the expenses of the election were very great. it was difficult to interest the miners in it; most of them had come to the country in the hope of improving their fortunes in one or two years, and then returning to "the states." it was, therefore, a matter of little moment to them who were chosen members of the coming legislature. party lines were not regarded among them, and party questions could not draw many of them from their labors. as i was an independent candidate, not supported by any party, i had to bear the whole expenses of the campaign. how great those expenses were may be imagined from the following bill, one of a large number sent to me after the election. i had told the saloon-keepers in the vicinity of the polling places in the different precincts to be liberally disposed towards my friends on the day of election. they took me literally at my word, as this bill from the keeper of a saloon where the polls were opened in downieville precinct will show: mr. s.j. field, to orleans house. to drinks................................ $ cigars................................ ------ downieville, _october th, _. $ [endorsed:] "we hereby certify that the within account is correct. "p.l. moore. "wm. s. spear." "received payment of the within bill in full from stephen j. field. "j. stratman. "_october th, _." the turner controversy continued it was not until after my election that judge turner paid any attention to the mandate of the supreme court commanding him to vacate his order of expulsion against myself and messrs. goodwin and mulford, and to restore us to the bar. the mandate was issued on the fourth of july, and was served on the judge on the sixteenth. he immediately and publicly declared that he would not obey it, but would stand an impeachment first. whilst attending the supreme court on the application for the writ, mr. goodwin, mr. mulford, and myself, were admitted as attorneys and counsellors of that court, and that admission under its rules entitled us to practice in all the courts of the state. the effect of this, which re-instated us in the district court, he determined to defeat. he accordingly directed the sheriff of the county to notify us to show cause, before the court in sutter county, why we should not be again expelled from the bar for the publication of the article in the placer times, to which i have referred, written in reply to his attack on us in his "address to the public." the order was dated on the fourth of october, and was served on the eighth, and required us to appear on the first thursday of the month, which was the third. as the time for appearance was previous to the day of service and to the date of the order, no attention was paid to it. the judge, however, proceeded, and on the eleventh of the month made another order of expulsion. after the adjournment of the court, he discovered his blunder, and at once issued another direction to the sheriff to notify us that the last order of expulsion was suspended until the twenty-eighth of october, and to show cause on that day why we should not be again expelled. in the meantime, the judge made no concealment of his purposes, but publicly declared in the saloons of the town that if we did not appear upon this second notice, he would make an order for our expulsion, and if we did appear, he would expel us for contempt in publishing the reply to his article, which he termed a false and slanderous communication. we knew, of course, that it would be useless to appear and attempt to resist his threatened action; still we concluded to appear and put in an answer. accordingly, on the day designated, we presented ourselves before the court in sutter county. i was the first one called upon to show cause why i should not be again expelled. i stated that i was ready, and first read an affidavit of one of the associate justices of the court of sessions, to show that the judge had declared his purpose to expel myself and the other gentlemen in any event, and that it was an idle ceremony to call upon us to show cause against such threatened action. as soon as it was read, the judge declared that it was not respectful and could not be received. i then began to read my answer to the order to show cause, but was stopped when i had read about one half of it, and was told that it was not respectful and could not be received. i then requested permission to file it, but my request was refused. mr. mulford being called upon to show cause why he should not be expelled, began to read an answer, but was stopped after reading a few lines. his answer was respectful, and was substantially to the effect that he had been admitted as attorney and counsellor in the supreme court on the previous july, and was thus entitled to practice in all the courts of the state; that the communication in the placer times was written in reply to an article of the judge, and that he was ready at the proper time and place to substantiate its truth; and he protested against the judge's interfering in the matter in the manner indicated in the notice. mr. goodwin being called upon, took in his answer substantially the same grounds as mr. mulford. immediately after mr. goodwin took his seat, without a moment's hesitation, the judge made an order that his previous order of the eleventh of october, expelling us, should be confirmed, and that the order should be published in the sacramento times and the san francisco herald. i immediately took the proper steps to obtain another mandate from the supreme court to vacate this second expulsion; and also to attach the judge for non-compliance with the original mandate, the first order of expulsion still being unvacated on the records of the court. at the january term, , the applications to the court in both cases were decided, and they are reported in the st california reports, at pages and . in the attachment case, the court denied the application on the ground that no motion had been made by us or any one on our behalf to cause the original order of expulsion to be vacated, and that the judge had, in the proceedings to expel us, substantially recognized us as re-instated. in the other case, the court decided that the proceedings to re-expel us were irregular, and directed an alternative writ to issue, commanding the judge to vacate the order and to permit us to practice in all the courts of the district, or to show cause to the contrary, at the next term. no cause was ever shown; and thus ended the attempts of an ignorant, malicious, and brutal judge to keep us out of the profession of our choice. mr. goodwin has since held many positions of honor and trust in the state. he was elected district attorney at the same time that i was elected to the legislature, and afterwards was judge of yuba county, and is now ( ) a member of the state senate. mr. mulford was afterwards and until his death a successful practitioner at the bar of marysville, and was in all the affairs of life respected as a high-spirited and honorable man. but with judge turner i have not yet done. i have a long story still to relate with respect to him. after my election to the legislature was ascertained, he became exceedingly solicitous to prevent in advance my exerting any influence in it. he expected that i would attack him, and endeavor to secure his impeachment, and he wanted to break me down if possible. he accordingly published a pamphlet purporting to be a statement of the charges that i preferred against him, which was, however, little else than a tirade of low abuse of myself and the editor of the marysville herald, in the columns of which the conduct of the judge had been the subject of just criticism and censure. there was nothing in the miserable swaggering billingsgate of the publication which merited a moment's notice, but as in one passage he stated that he had attempted to chastise me with a whip, and that i had fled to avoid him, i published in the marysville herald the following card: a card. judge william e. turner, in a "statement" published over his signature on the th instant, asserts that he attempted to chastise me with a switch, and that i fled to avoid him. this assertion is a _shameless lie_. i never, to my recollection, saw judge turner with a switch or a whip in his hand. he has made, as i am informed, many threats of taking personal vengeance on myself, but he has never attempted to put any of them into execution. i have never avoided him, but on the contrary have passed him in the street almost every day for the last four months. when he attempts to carry any of his threats into execution, i trust that i shall not forget, at the time, what is due to myself. judge turner says he holds himself personally responsible in and under all circumstances. this he says _in print_; but it is well understood in this place that he has stated he should feel bound by his oath of office to endeavor to obtain an indictment against any gentleman who should attempt to call him to account. shielded behind his oath of office he has displayed his character by childish boasts of personal courage and idle threats of vengeance. stephen j. field. marysville, _dec. st, _. there were also annexed to the publication of turner, letters from different persons expressive of their opinion of his general bearing on the bench and courtesy to them. among these was one from john t. mccarty, the candidate against me at the recent election, in which he spoke in high terms of the judge's conduct on the bench, and assailed me as his calumniator, applying to me sundry coarse epithets. in answer to this letter i published in the herald the following card: john t. mccarty. john t. mccarty, in a letter to judge william e. turner, dated the d of november, takes occasion to apply several vile epithets to myself, and uses the following language to judge turner: "having been present at the first term of your court ever held in this district, and most of your courts since that time, and being familiar with almost every decision and your entire conduct upon the bench, i take pleasure in saying that i never have practiced before any court where there was so great a dispatch of business, so much order and general satisfaction rendered by the rules and decisions of the court, and that, notwithstanding the base denunciations of your enemies, a large majority of the people who have attended your courts approve and sustain your positions and decisions." during the session of the district court, at its first term, this same john t. mccarty was called before the county judge to give his testimony on the return of a writ of _habeas corpus_, and then he testified "_that the conduct of judge turner on the bench was the most outrageous he had ever witnessed in any court in which he had practiced;" and the tenor and effect of his whole testimony was in the highest degree condemnatory of the conduct of judge turner_. one of two things follows: if the statement in the letter be true, then john t. mccarty was guilty of perjury before the county judge; but if he testified to the truth, then his statement in the letter is false. in the one case he is a liar and in the other a perjured scoundrel. thus convicted out of his own mouth, his vile epithets respecting myself are not worth a moment's consideration. stephen j. field. marysville, _dec. st, _. on my return from the legislature, and afterwards, this same mccarty was in my presence the most abject and humble wretch i knew in marysville. he almost piteously begged recognition by me, and was ready to go down on his knees for it. he was a blustering miscreant, full of courage where no force was required, and ready to run at the first appearance of a fight. he was one of a class, all of whom are alike, in whom bluster, toadyism, and pusillanimity go in concert, and are about equally developed in degree. life in the legislature immediately after the election i commenced the preparation of a bill relating to the courts and judicial officers of the state, intending to present it early in the session. the legislature met at san jose on the first monday of january, , and i was placed on the judiciary committee of the house. my first business was to call the attention of the committee to the bill i had drawn. it met their approval, was reported with a favorable recommendation, and after a full discussion was passed. its principal provisions remained in force for many years, and most of them are retained in the code, which went into effect in january, . it created eleven judicial districts and defined the jurisdiction and powers of every judicial officer in the state, from a supreme judge to a justice of the peace. it provided that the then incumbent district judges should continue to be the judges of the new districts according to their respective numbers. at the same time i introduced a bill dividing the county of trinity, and creating that of klamath; and also a bill dividing the county of yuba, and creating that of nevada; and i so arranged it that out of trinity and klamath a new eighth judicial district was created, and out of yuba, nevada, and sutter a tenth judicial district. thus turner, being judge of the eighth district, was sent to the then comparative wilderness of trinity and klamath; and the tenth district was to have a new judge. after this bill was passed i presented petitions from the citizens of yuba county, and of that part which now constitutes nevada county, praying for the impeachment of turner, and his removal from office, charging as grounds for it his incompetency from ignorance to discharge its duties, his arbitrary and tyrannical conduct towards the county judge and members of the marysville bar, the particulars of which i have related, his contemptuous treatment of the writ of _habeas corpus_, and his general immoral conduct. a committee was thereupon appointed to which the petitions were referred, with power to send for persons and papers. the testimony taken by them fully established the charges preferred. indeed, there was no serious attempt made to refute them. the only evidence offered in behalf of the judge was that of a few persons who testified that they had been treated by him with courtesy in some instances and that good order had been maintained in court when they were present. there is no doubt that the impeachment would have been ordered but for a strong desire of the members to bring the session to a close, and a report which had obtained credence, that after the passage of the court bill, by which turner was sent out of the eighth district, i was content to let the question of impeachment be indefinitely postponed. the testimony taken was reported by the committee on the th of april. his impeachment would have required a trial by the senate, which would have prolonged the session at least a month, and to this members were much averse. parties came to me and said, "judge, what's the use of pressing this matter. you have sent turner where there are only grizzly bears and indians; why not let him remain there? he can do no harm there." i replied that he was not fit to be a judge anywhere, and i refused assent to a postponement of the matter. afterwards, when the vote was about to be taken, a senator and a personal friend of turner, misinterpreting some expressions of mine that i desired to bring the matter to a speedy close, privately stated to members of the house that i had declared myself satisfied by the passage of the court bill and was willing to let the impeachment be dropped, it being understood that this course would not be taken as a sanction of the judge's conduct. to my astonishment, members who had said only half an hour before that they should vote for the impeachment now voted for an indefinite postponement, which was carried by three votes--fifteen to twelve. i did not vote, and three members who strongly favored the impeachment were absent at the time. seven of the members who voted for the indefinite postponement afterwards informed me that they had done so under the impression that such a disposition of the matter would be satisfactory to me, and that if a direct vote had been taken on the charges they should have voted for the impeachment. here the matter ended; i did not pursue it. turner did not go back to marysville and i had no further trouble with him.[ ] to understand fully the legislation with which i was connected, and its effect upon the state, one must be familiar with the history of the country and the condition of its people. in addition to the act concerning the courts and judicial officers referred to, i took up the code of civil procedure, as reported by the commissioners in new york, remodelled it so as to adapt it to the different condition of things and the different organization of the courts in california, and secured its passage. it became what was known as the california civil practice act, and was afterwards adopted in nevada and in the territories west of the rocky mountains. i also took up the code of criminal procedure, as reported by the same commissioners, and remodelled that in the same way and secured its passage. it constituted what was afterwards known as the california criminal practice act, and was also adopted in the state and territories mentioned. the amount of labor bestowed upon these acts will be appreciated when i state that i recast, in the two, over three hundred sections, and added over one hundred new ones. i devoted so much attention and earnestness to the work, that in a short time the legislature placed implicit confidence in everything relating to the judiciary which i recommended. the criminal practice act, for instance, remodelled as stated, consisting of over six hundred sections, was never read before the legislature at all. the rules were suspended and the bill read by its title and passed. when it came before the governor, on the last day of the session, he said he could not sign it without reading it, and it was too late for him to do that. i represented to him that its passage was essential to secure the harmonious working of laws already passed. turning to me he said, "you say it is all right?" i replied, "yes;" and thereupon he signed it. i have already stated that i moved turner's impeachment. after the testimony was taken i addressed the house upon the subject. in reply to my remarks a member, by the name of b.f. moore, from tuolumne county, took occasion to make an abusive attack on me. it was the common practice in those days to go armed. of the thirty-six members of which the assembly then consisted, over two-thirds never made their appearance without having knives or pistols upon their persons, and frequently both. it was a thing of every-day occurrence for a member, when he entered the house, before taking his seat, to take off his pistols and lay them in the drawer of his desk. he did it with as little concern and as much a matter of course, as he took off his hat and hung it up. nor did such a thing excite surprise or comment. but when mr. moore rose to reply to me, he first ostentatiously opened his drawer, took out his revolvers, cocked them, and laid them in the open drawer before him. he then launched out into a speech of the most opprobrious language, applying to me offensive epithets, and frequently interspersing his remarks with the declaration that he was responsible for what he said, both there and elsewhere. it is difficult for me to describe the indignation i felt at this outrageous assault and the manner in which it was made. its very fierceness made me calm, as it is said that a tempest at sea is sometimes so violent as to still the waves. so when i came to make my rejoinder, i answered only such portions of his speech as attempted argument, and made no allusion to the personal language he had used towards me. but as soon as the vote was had on the question of postponing the impeachment, i took measures to call him to account. for this purpose i applied to mr. samuel a. merritt, a member from mariposa county, to carry a note from me to him, calling upon him to apologize for his offensive conduct or give me the satisfaction which it was understood one gentleman had the right to demand from another. at that time it was generally supposed that the constitutional provision in regard to duelling was self-operative, and that any person who either sent or accepted a challenge, or acted as a second to one who thus offended, would _ipso facto_ be disqualified from afterwards holding any public office. upon this understanding of the law, mr. merritt, with many expressions of regard for me and regret at the law, declined to carry the note. i then applied to mr. richardson, also a member, but he declined for the same reason. i was afraid, as matters stood, that i could not get anybody to act for me, and i did not know to whom to apply or what to do. whilst thinking the matter over, i happened, about nine o'clock in the evening, to walk into the senate chamber, and there found mr. david c. broderick, afterwards united states senator, sitting at his desk writing. he was at that time president _pro tem._ of the senate. i had known him for some time, but not intimately; we were merely bowing acquaintances. as i entered he looked up and said, "why, judge, you don't look well, what is the matter?" i answered that i did not feel well, for i had not a friend in the world. he replied, "what is it that worries you?" i then related to him everything that had happened, giving the particulars of the gross and violent assault upon my character, and stated that i was determined, at all hazards, to call moore to account. mr. broderick, without hesitation, said, "my dear field, i will be your friend in this matter; go and write at once a note to moore, and i will deliver it myself." i accordingly sat down at an adjoining desk and wrote him a note, the purport of which was that i required him either to make a public retraction of his insulting language in the legislature, or to give me the satisfaction i had a right to demand. broderick approved of its terms and at once proceeded to deliver it. when he called on moore and presented it, the latter said he expected to be a candidate for congress before the coming convention, and he could not accept a challenge because it would disqualify him under the constitution from holding the office. but at the same time he observed that he was willing to meet me at any time and place; in other words, that he had no objection to a street fight. broderick replied that a street fight was not exactly the thing among gentlemen; but that if moore would do no better, a street fight there should be; and thereupon named a time and place when and where i would be found the next morning. within an hour afterwards moore changed his mind, and informed mr. broderick that drury baldwin, another member of the house, would act as his friend, and give a reply to my note the next morning. in anticipation of a possible collision, mr. broderick took me out early the following morning to try my skill in the use of a pistol. i tried a navy revolver and succeeded in hitting a knot on a tree, at a distance of thirty yards, three times out of five. broderick declared himself satisfied, and i then urged upon him the necessity of bringing the matter to a speedy issue. in all this he concurred, and before the meeting of the house, called upon baldwin for an answer to my note. baldwin replied that his principal had made up his mind to do nothing further in the matter. "then," said broderick, "as soon as the house meets, judge field will arise in his seat and refer to the attack on him and to the language of moore, that he held himself responsible for what he said, and state that respect for the dignity of the house had prevented him from replying to the attack at the time in the terms it deserved; that he had since demanded satisfaction of moore for his language, and that moore had refused to respond, and will thereupon pronounce him a liar and a coward." "then," said baldwin, "judge field will get shot in his seat." "in that case," rejoined broderick, "there will be others shot too." mr. broderick soon afterwards informed me of his conversation with baldwin, and asked me if i would act as he had stated i would. "most certainly," i replied; "never fear for me; i will meet the case as it should be met." accordingly, when the house opened, i took my seat at my desk as usual. looking around i saw that broderick was seated near me, and behind him were eight or nine of his personal friends, all armed to the teeth and ready for any emergency. in the meantime, and just before the house met, general john e. addison, who had found out what was going on and knew the seriousness of the affair, called on moore, who was his friend, and urged him to retract what he had said and make a suitable apology, and for that purpose drew up a document for him to read to the house, but of this i was not at the time informed. as soon as the journal was read i rose in my seat and said, "mr. speaker." at the same moment moore rose in his seat and said, "mr. speaker." the speaker recognized moore first; and moore thereupon proceeded to read the written apology prepared by addison for his conduct and language to me. it was full, ample, and satisfactory; and of course with that the matter ended. from that time forward to the end of the session i had no further trouble with any one. [ ] see exhibit h, in appendix. friendship for david c. broderick. the narrative which i have given of my difficulty with moore explains how broderick befriended me at a very trying time. but that was not the only occasion on which he befriended me. when i came to san francisco after the adjournment of the legislature, in may, , i went several times to see him at the hotel where he stopped. on one occasion in the evening, while we were in the saloon of the hotel, he asked me to take a glass of wine with him. we stepped up to the bar and were about drinking, when he suddenly threw himself before me and with great violence pushed me out of the room. the proceeding was so sudden and unexpected that i was astonished and for a moment indignant. i demanded an explanation, saying "what does this mean, mr. broderick?" he then told me that while we were standing at the bar he had noticed vi.--or to give his full name, vicesimus--turner, a brother of the judge, a man of desperate character, come into the bar-room, throw back his spanish cloak, draw forth a navy revolver, and level it at me. seeing the movement, he had thrown himself between me and the desperado and carried me off. these good offices on the part of mr. broderick filled me with a profound sense of gratitude. for years afterwards i thought and felt as if there was nothing i could do that would be a sufficient return for his kindness. on his account i took much greater interest in political matters than i otherwise should. in order to aid him in his aspirations for election to the united states senate, upon which he had set his heart, i attended conventions and gave liberally, often to my great inconvenience, to assist the side to which he belonged. to many persons it was a matter of surprise that i should take such an interest in his success and through good and evil report remain so constant and determined in my support of him; but the explanation lies in the circumstances i have narrated and the brave manner in which he had stood by me in a most critical moment of my life. i regret to state that this friendship was ever broken. it was not by me; but broken it was. shortly after mr. broderick was elected to the senate, he quarrelled with mr. buchanan over appointments to office in california; and when he returned to the state, he expressed a good deal of hostility to the administration. in that hostility i did not participate, and he complained of me for that reason. i was then spoken of throughout the state as a probable candidate for the bench, and he announced his opposition to my nomination. i made no complaints of his conduct, but was much hurt by it. my nomination and election soon afterwards removed me from the sphere of politics. i seldom met him after my election, and never had any conversation with him. though he was offended at my failure to take sides with him in his controversy with the president, and our intimacy ceased, i could never forget his generous conduct to me; and for his sad death there was no more sincere mourner in the state. legislation secured and beginning a new life. my legislative career was not without good results. i drew, as already stated, and carried through the legislature a bill defining the powers and jurisdiction of the courts and judicial officers of the state; and whilst thus doing good, i also got rid of the ignorant and brutal judge of our district who had outraged my rights, assaulted my character, and threatened my life. i also, as i have mentioned, introduced bills regulating the procedure in civil and criminal cases, remodelled with many changes from the codes of civil and criminal procedure reported by the commissioners of new york; and secured their passage. in the civil practice act i incorporated provisions making the most liberal exemptions from forced sale of the personal property of a debtor, including not merely a limited amount of household furniture, and provisions sufficient for individual or family use for one month, but also the instruments or tools by which he earned his livelihood. the exemptions embraced necessary household and kitchen furniture, wearing apparel, beds and bedding of the debtor, whatever his calling; and also the farming utensils and implements of husbandry of the farmer, two beasts of burden employed by him, and one cart or wagon; the tools and implements of a mechanic or artisan necessary to carry on his trade; the instruments and chests of a surgeon, physician, surveyor, and dentist; the law libraries of an attorney and counsellor; the cabin or dwelling of a miner, and his pick, rocker, wheelbarrow, and other implements necessary to carry on mining operations; two oxen, two horses or two mules and their harness, and one cart or wagon of the cartman, hackman, or teamster; and one horse with vehicle and harness and other equipments used by a physician, surgeon, or minister of the gospel in making his professional visits; and all arms and accoutrements required by law to be kept by any person. i never could appreciate the wisdom of that legislation which would allow a poor debtor to be stripped of all needed articles of his household and of the implements by which alone he could earn the means of supporting himself and family and of ultimately discharging his obligations. it has always seemed to me that an exemption from forced sale of a limited amount of household and kitchen furniture of the debtor, and of the implements used in his trade or profession, was not only the dictate of humanity, but of sound policy. i also incorporated a provision into the civil practice act respecting suits for mining claims, which was the foundation of the jurisprudence respecting mines in the country. the provision was that in actions before magistrates for such claims, evidence should be admitted of the usages, regulations, and customs prevailing in the vicinity, and that such usages, regulations, and customs, when not in conflict with the constitution and laws of the state, or of the united states, should govern the decision of the action. at this time suits for mining claims, the mines being confessedly on the property of the united states, were brought upon an alleged forcible or unlawful detainer. this rule, thus for the first time adopted by legislative enactment, was soon extended to actions for such claims in all courts, and has since been adopted in all the states and territories west of the rocky mountains and substantially by the legislation of congress. simple as the provision is, it solved a difficult problem. i also advocated and aided the passage of the homestead exemption bill. that bill was introduced by mr. g.d. hall, a member from el dorado, and now a resident of san francisco. it provided for an exemption of the homestead to the value of $ , . an effort was made to reduce the amount to $ , , and i think i rendered some aid in defeating this reduction, which has always been to me a source of great gratification. i also secured the passage of an act concerning attorneys and counsellors-at-law, in which i incorporated provisions that rendered it impossible for any judge to disbar an attorney in the arbitrary manner in which judge turner had acted towards me, without notice of the charges against him and affording him an opportunity to be heard upon them. i also introduced a bill creating the counties of nevada and klamath, the provisions of which were afterwards incorporated into a general bill which was passed, dividing the state into counties and establishing the seats of justice therein, and by which also the county of placer was created. i drafted and secured the passage of an act concerning county sheriffs, in which the duties and responsibilities of those officers, not only in the execution of process and the detention of prisoners, but as keepers of the county jail, were declared and defined; also an act concerning county recorders, in which the present system of keeping records was adopted. this latter act, though drawn by me, was introduced by mr. merritt, of mariposa, but he does not hesitate to speak publicly of my authorship of it. i also prepared a bill concerning divorces, which was reported from the judiciary committee as a substitute for the one presented by mr. carr, of san francisco, and was passed. in this act, aside from the ordinary causes of adultery, and consent obtained by force or fraud, for which divorces are granted, i made extreme cruelty and habitual intemperance, wilful desertion of either husband or wife for a period of two years, and wilful neglect of the husband to provide for the wife the common necessaries of life, having the ability to provide the same, for a period of three years, also causes of divorce. i also drew the charters of the cities of marysville, nevada, and monterey, which were adopted--that of monterey being reported by the judiciary committee as a substitute for one introduced by a member from that district. other bills drawn or supported by me were passed, the provisions of which are still retained in the laws of the state. but notwithstanding all this, when i turned my face towards marysville i was, in a pecuniary sense, ruined. i had barely the means to pay my passage home. my ventures, after my expulsion from the bar, in june, , had proved so many maelstroms into which the investments were not only drawn but swallowed up. my affairs had got to such a pass that before i left marysville for the legislature i felt it to be my duty to transfer all my real property to trustees to pay my debts, and i did so. and now when i stepped upon the landing in marysville my whole available means consisted of eighteen and three-quarter cents, and i owed about eighteen thousand dollars, the whole of which bore interest at the rate of ten per cent. a month. i proceeded at once to the united states hotel, kept by a mr. peck, who had known me in the days of my good fortune. "my dear mr. peck," i said, "will you trust me for two weeks' board?" "yes," was the reply, "and for as long as you want." "will you also send for my trunks on the steamer, for i have not the money to pay the carman." "certainly," the good man added, and so the trunks were brought up. on the next day i looked around for quarters. i found a small house, thirty feet by sixteen, for an office, at eighty dollars a month, and took it. it had a small loft or garret, in which i placed a cot that i had purchased upon credit. upon this cot i spread a pair of blankets, and used my valise for a pillow. i secured a chair without a back for a wash-stand, and with a tin basin, a pail, a piece of soap, a toothbrush, a comb, and a few towels, i was rigged out. i brought myself each day the water i needed from a well near by. i had an old pine table and a cane-bottomed sofa, and with these and the bills which had passed the legislature, corrected as they became laws, and the statutes of the previous session, i put out my sign as an attorney and counsellor-at-law, and began the practice of my profession. soon afterwards i found my name mentioned as a candidate for the state senate. the idea of returning to the legislature as a senator pleased me. the people of the county seemed to favor the suggestion. accordingly i made a short visit to neighboring precincts, and finding my candidacy generally approved i went to work to make it successful. at the election of delegates to the county convention, which was to nominate candidates, a majority was returned in my favor. several of them being unable to attend the convention, which was to be held at downieville, a distance of about seventy miles from marysville, sent me their proxies made out in blank to be filled with the name of any one whom i might designate. to one supposed friend i gave ten proxies, to another five, and to a third two. when the members met, just previous to the assembling of the convention, it was generally conceded that i had a majority of the delegates. but i had a new lesson in manipulation to learn. just before the opening of the convention my supposed friend, who had the ten proxies, was approached by the other side, and by promises to give the office of sheriff to his partner--an office supposed to be worth thirty thousand a year--his ten votes were secured for my opponent. the one to whom i had given five proxies was promised for those votes the county judgeship. so when the convention voted, to my astonishment and that of my friends, fifteen of my proxies were cast for my opponent, joseph c. mckibbin, afterwards a member of congress, who acted so fearlessly when the kansas question came up. i was accordingly beaten by two votes. for the moment i was furious, and hunted up the man who had held my ten proxies, and had been seduced from my support. when i found him in the room of the convention, i seized him and attempted to throw him out of the window. i succeeded in getting half his body out, when bystanders pulled me back and separated us. this was fortunate for both of us; for just underneath the window there was a well or shaft sunk fifty feet deep. the following morning i left downieville, returned to my office and loft at marysville, and gave my attention to the practice of the law. my business soon became very large; and, as my expenses were moderate, within two years and a half i paid off all my indebtedness, amounting with the accumulations of interest to over thirty-eight thousand dollars. part of this amount was paid by a surrender of the property mortgaged, or a sale of that previously assigned, but the greater part came from my earnings. i paid every creditor but one in full; to each i gave his pound of flesh, i mean his interest, at ten per cent. a month. i never asked one of them to take less than the stipulated rate. the exceptional creditor was mr. berry, a brother lawyer, who refused to receive more than five per cent. a month on a note he held for $ . by this time i had become so much interested in my profession as to have no inclination for office of any kind. on several occasions i was requested by influential party leaders to accept a nomination for the state senate, but i refused. i am inclined to think that i had for some time a more lucrative practice than any lawyer in the state, outside of san francisco. no such fees, however, were paid in those days as have been common in mining cases since the discovery of the silver mines of nevada and the organization of great corporations to develop them. the bar of marysville during this period, and afterwards while i remained in that city--which was until october, --was a small, but a very able body of men. many of its members have since attained distinction and held offices of honor and trust. richard s. mesick, who settled there in , became a state senator, and after his removal to nevada, a district judge of that state. he ranks now among the ablest lawyers of the coast. charles h. bryan, who settled there the same year, was an eloquent speaker, and in his forensic contests gave great trouble to his opponent whenever he got at the jury. he was on the supreme court of the state for a short period, under the appointment of governor bigler. jesse o. goodwin, of whom i have already spoken, settled in marysville in . he was a ready speaker, and sometimes rose to genuine eloquence. he was distinguished in criminal cases. as already stated, he was elected district attorney in , and afterwards became county judge, and is now state senator. gabriel n. swezy, who settled there in , was learned in his profession, and quick of apprehension. few lawyers could equal him in the preparation of a brief. he afterwards at different times represented the county in the assembly and the senate of the state. william walker, who afterwards figured so conspicuously in the filibustering expeditions to nicaragua, and was called by his followers "the grey-eyed man of destiny," had an office in marysville in and ' . he was a brilliant speaker, and possessed a sharp but not a very profound intellect. he often perplexed both court and jury with his subtleties, but seldom convinced either. john v. berry, who came to marysville from the mines in , was a fine lawyer, deeply read in the law of adjudged cases. he died in from poison given to him in mistake by a druggist. edward d. wheeler, who came there in , and thomas b. reardon, who came in , were both men of strong minds. mr. wheeler represented yuba county at one time in the senate, and is now the district judge of the nineteenth district, at san francisco. he is regarded as among the ablest and best of the state judges. mr. reardon has been a district judge for some years in the fourteenth district, greatly respected by the profession for his ability and learning. isaac s. belcher, who came to marysville at a later period--in , i believe--was noted for his quiet manners and studious habits. he has since been district judge, and has worthily filled a seat on the bench of the supreme court of the state, where he was greatly respected by his associates and members of the bar. edward c. marshall, the brilliant orator, who at one time represented the state in congress, had his office in marysville in and ' . he occasionally appeared in court, though he was generally occupied in politics, and in his case, as in nearly all others, the practice of the law and the occupation of politics did not always move harmoniously together. charles e. filkins, afterwards county judge; charles lindley, afterwards also county judge and one of the code commissioners; henry p. haun, the first county judge, and afterwards appointed to the united states senate by governor weller; n.e. whitesides, afterwards a member of the legislature from yuba, and speaker of the house; f.l. hatch, now county judge of colusa; george howe, afterwards treasurer of the county; and wm. s. belcher, who afterwards rendered good service to the public as a school commissioner, also practiced at the marysville bar with success. charles e. delong, afterwards a member of the state senate, and our minister to japan, and henry k. mitchell, afterwards a nominee of the democrats for the u.s. senate in nevada, were just getting a good position at the bar when i left, and gave evidence of the ability which they afterwards exhibited. others might be named who held fine positions in the profession. these mentioned show a bar of great respectability, and i may add that its members were, with few exceptions, gentlemen of general information and courteous manners. the litigation which chiefly occupied them and gave the largest remuneration related to mines and mining claims. the enforcement of mortgages and collection of debts was generally--by me, at least--entrusted to clerks, unless a contest was made upon them. there was one case which i recall with pleasure, because of the result obtained in face of unconcealed bribery on the other side. the subject of the suit was the right to a "placer" mine in yuba river, at park's bar. its value may be estimated from the fact that within two or three weeks after the decision of the case, the owners took from the mine over ninety thousand dollars in gold dust. the suit was brought before a justice of the peace, and was for an alleged forcible entry and detainer, a form of action generally adopted at the time for the recovery of mining claims, because the title to the lands in which the mines were found was in the united states. it was prosecuted as a purely possessory action. the constable whose duty it was to summon the jurors had received the sum of two hundred dollars to summon certain parties, named by the other side. this fact was established beyond controversy by evidence placed in my hands. and whilst i was in bed in one of the tents or canvas sheds at the bar, which the people occupied in the absence of more substantial buildings, i heard a conversation in the adjoining room--i could not help hearing it, as it was carried on without any attempt at concealment, and the room was only separated from me by the canvas--between one of the jurors and one of the opposite party, in which the juror assured the party that it was "all right," and he need not worry as to the result of the suit; his side would have the verdict; the jury were all that way. on the next day, when the case was summed up, the saloon in which the trial was had was crowded with spectators, most of whom were partisans of the other side. i addressed the jury for over three hours, and after having commented upon the evidence at length and shown conclusively, as i thought, that my client was entitled to a verdict, i said substantially as follows: "gentlemen, we have not endeavored to influence your judgment except by the evidence; we have not approached you secretly and tried to control your verdict; we have relied solely upon the law and the evidence to maintain our rights to this property. but the other side have not thus acted; they have not been content that you should weigh only the evidence; they have endeavored to corrupt your minds and pervert your judgments; they have said that you were so low and debased that although you had with uplifted hands declared that so might the ever-living god help you, as you rendered a verdict according to the evidence, you were willing, to please them, to decide against the evidence, and let perjury rest on your souls. i know that you [pointing to one of the jurors] have been approached. did you spurn the wretch away who made a corrupt proposal to you, or did you hold counsel, sweet counsel with him? i know that you [pointing to another juror] talked over this case with one of the other side at the house on the hill last night, for i overheard the conversation--the promise made to you and your pledge to him. in the canvas houses here all rooms are as one; the words uttered in one are voices in all. you did not dream that any but you two were in the tent; but i was there and overheard the foul bargain." at this thrust there was great excitement, and click, click, was heard all through the room, which showed a general cocking of pistols; for every one in those days went armed. i continued: "there is no terror in your pistols, gentlemen; you will not win your case by shooting me; you can win it only in one way--by evidence showing title to the property; you will never win it by bribery or threats of violence. i charge openly attempted bribery, and if what i say be not true, let the jurors speak out now from their seats. attempted bribery, i say--whether it will be successful bribery, will depend upon what may occur hereafter. if, after invoking the vengeance of heaven upon their souls should they not render a verdict according to the evidence, the jurors are willing to sell their souls, let them decide against us." this home-thrust produced a great sensation. it was evident that the jury were disturbed. when the case was submitted to them, they were absent only a few minutes. they returned a verdict in our favor. some of them afterwards came to me and admitted that they had been corruptly approached, but added that they were not low enough to be influenced in their verdict in that way. "of course not," i replied; though i had little doubt that it was only the fear of exposure which forced them to do right. i have said that in those days everyone went armed; it would be more correct to say that this was true in the mining regions of the state and when travelling. i, myself, carried a derringer pistol and a bowie-knife until the summer of , though of course out of sight. i did so by the advice of judge mott, of the district court, who remarked that, though i never abused a witness or a juror, or was discourteous to any one in court, there were desperate men in the country, and no one could know to what extremity they might go, as i would not be deterred by any considerations from the discharge of my whole duty to my clients. so, until the summer of , i carried weapons. and yet they were not such provocatives of difficulty as some of our eastern friends are accustomed to think. on the contrary, i found that a knowledge that they were worn generally created a wholesome courtesy of manner and language. i continued to occupy my small office and slept in its loft through the summer and fall of , and felt quite contented with them. twice i was summarily dislodged, being threatened by a fire on the other side of the street. on one occasion a most ludicrous incident occurred, which i cannot recall without a smile. a little after midnight we were aroused, on the occasion referred to, by a loud thumping at our door, accompanied by a cry of "fire." my loft was shared with three others, and at the cry we all leaped from our cots and two of our number seizing whatever was convenient and portable carried it out of the house to a distance of about one hundred yards, where gathered a multitude of people, fleeing before the flames with all sorts of baggage, trunks, chairs, beds, and utensils of every kind which they had brought from their houses. i hastily threw the papers of sundry suits and a dozen law books, recently purchased, into a box, and with the assistance of the other occupant of my loft, carried it off. just as we reached the crowd, a pair of young grizzly bears which the owner had kept in a cage near by were let loose, and they came towards us growling in their peculiar way. at their sight, there was a general _stampede_ of men, women, and children, in all directions. boxes and everything else portable were instantly dropped, and such an indiscriminate flight was never before seen except from a panic in battle. the barbour difficulty. when the bill of , dividing the state into new judicial districts, became a law, there were several candidates for the office of judge of the tenth judicial district, which comprised the counties of yuba, nevada, and sutter. henry p. haun, the county judge of yuba, was one candidate; john v. berry, a lawyer of the same county was another; and gordon n. mott, a lawyer of sutter county, was a third. my first choice was berry; but, finding that he had very little chance, i gave what influence i had in favor of mr. mott, and he received from the governor the appointment of judge of the new district. in the summer of , the governor issued his proclamation for the fall elections, and, among others, for an election to fill the office of judge of the tenth district. i had supposed--and there were many others who agreed with me--that judge mott's term under his appointment would continue until the election of . but there being some doubts about the matter and the governor having issued his proclamation for an election, candidates were nominated by the conventions; and at the ensuing election one of them, william t. barbour, a lawyer of nevada county, received a majority of the votes cast and was declared elected. when he came, however, to demand the office, judge mott expressed his opinion that there had been no vacancy to be filled and declined to surrender. this led to a suit between them. the question involved being exclusively one of law, an agreed case was made up and presented to the supreme court, and that tribunal decided in favor of barbour. a report of the case is given in the d california reports, under the title of people, ex rel. barbour, vs. mott. in the case i appeared as counsel for judge mott and argued his cause. this offended judge barbour, and he gave free expression to his displeasure. afterwards, when his term for the vacancy was about to expire and a new election was to be held, he presented himself as a candidate for a second term. it was my opinion that he was not qualified for the position, and i therefore recommended my friends to vote for his opponent. for some weeks previous to the election i was absent from the district; but i returned two days before it was to take place and at once took a decided part against barbour and did all i could to defeat him. this action on my part, in connection with my previous zeal in behalf of judge mott, led barbour to make some very bitterly vituperative remarks about me, which being reported to me, i called on him for an explanation. some harsh words passed between us at the interview. the result was that barbour refused to make any explanation, but gave me a verbal challenge to settle our difficulties in the usual way among gentlemen. i instantly accepted it and designated judge mott as my friend. in half an hour afterwards judge mott was called upon by mr. charles s. fairfax as the friend of barbour, who stated that barbour had been challenged by me, and that his object in calling upon mott was to arrange the terms of a hostile meeting. mott answered that he understood the matter somewhat differently; that the challenge, as he had been informed, came from barbour, and that i, instead of being the challenging, was the accepting party. fairfax, however, insisted upon his version of the affair; and upon consulting with mott, i waived the point and accepted the position assigned me. fairfax then stated that barbour, being the challenged party, had the right to choose the weapons and the time and place of meeting; to all of which mott assented. fairfax then said that, upon consultation with his principal, he had fixed the time for that evening; the place, a room twenty feet square, describing it; the weapons, colt's revolvers and bowie-knives; that the two principals so armed were to be placed at opposite sides of the room with their faces to the wall; that they were to turn and fire at the word, then advance and finish the conflict with their knives. mott answered that the terms were unusual, unprecedented, and barbarous, and that he could not consent to them. fairfax admitted that they were so; but replied that they were those barbour had prescribed. he would, however, see barbour and endeavor to obtain a modification of them. soon afterwards he reported that barbour still insisted upon the terms first named and would not agree to any other. when mott reported the result of his conference with fairfax, i at once said that barbour was a coward and would not fight at all. i knew perfectly well that such terms could come only from a bully. i saw that it was a game of bluff he was playing. so i told mott to accept them by all means. mott accordingly called on fairfax and accepted the terms as proposed, and gave notice that i would be on hand and ready at the time and place designated. this being reported to barbour, fairfax soon afterwards made his appearance with a message that his principal would waive the bowie-knives; and not long afterwards he came a second time with another message that it would not do to have the fight in the room designated, because the firing would be heard outside and attract a crowd. in accordance with my instructions, mott assented to all the modifications proposed, and it was finally agreed that the meeting should take place the next morning in sutter county. i was to take a private conveyance, and barbour was to take one of the two daily stages that ran to sacramento. at a specified place we were to leave our conveyances and walk to a retired spot, which was designated, where the hostile meeting was to take place. the next morning, accordingly, i took a carriage, and with my friend judge mott drove down to the appointed place. after we had been there some time the first stage appeared and stopped. soon after the second stage appeared and stopped, and judge barbour and mr. fairfax got out. but instead of proceeding to the designated place, barbour declared that he was a judicial officer, and as such could not engage in a duel. at the same time he would take occasion to say that he would protect himself, and, if assaulted, would kill the assailant. with these words, leaving fairfax standing where he was, he walked over to the first stage, and mounting rode on to sacramento. seeing fairfax standing alone on the ground i sent word to him that i would be happy to give him a place in my carriage--an invitation which he accepted, and we then drove to nicolaus, where we breakfasted, and thence returned to marysville.[ ] the conduct of barbour on the ground, after his fierce and savage terms at the outset, produced a great deal of merriment and derision; and some very sharp squibs appeared in the newspapers. one of them gave him great annoyance, and he inquired for its author. i told the editor of the paper in which it appeared that if it was necessary to protect the writer, to give my name, although i did not write it, or know beforehand that it was to be written. on the following morning, whilst in front of my office gathering up kindling-wood for a fire, and having my arms full--for each man was his own servant in those days--barbour came up and, placing a cocked navy revolver near my head, cried out, "draw and defend yourself." as i had not observed his approach i was taken by surprise, but turning on him i said, "you infernal scoundrel, you cowardly assassin--you come behind my back and put your revolver to my head and tell me to draw; you haven't the courage to shoot; shoot and be damned." there were at least ten witnesses of this scene; and it was naturally supposed that having advanced so far he would go farther; but as soon as he found i was not frightened, he turned away and left me. it is impossible to express the contempt i felt for him at that moment for his dastardly conduct, a feeling which the spectators shared with me, as they have since often stated.[ ] i do not give these details as having any importance in themselves; but they illustrate the semi-barbarous condition of things in those early days, and by comparison show out of what our existing condition has been evolved, and how far we have advanced. i give them also for the reason that barbour afterwards wrote a letter to turner, which the latter published, referring to the affair, in which he boasted of having given me a "whipping." how far his boast was warranted the above facts show. for a long time afterwards he expressed his bitterness towards me in every possible way. he did not take turner's plan of expelling me from the bar; but he manifested his feelings by adverse rulings. in such cases, however, i generally took an appeal to the supreme court, and in nearly all of them procured a reversal. the result was that he suddenly changed his conduct and commenced ruling the other way. while this was his policy, there was hardly any position i could take in which he did not rule in my favor. at last i became alarmed lest i should lose my cases in the appellate court by winning them before him. about a year afterwards he sent one of his friends to ask me if i was willing to meet him half-way--stating that my conduct in court had always been courteous, and he was satisfied that he had done me injustice. i answered that i was always willing to meet any one half-way, but in this case it must be without explanations for the past. this condition was accepted; accordingly we met, and taking a glass of wine, i said, "here is to an act of oblivion, but no explanations." for a long time no allusion was made by either to the old difficulties. but at last he insisted upon telling me how tales had been brought to him, and how they exasperated him; and he expressed great regret for what had taken place; and to make amends, as far as he was able, for what he had written about me, he sent me the following letter: "marysville, _dec. , _. "hon. s.j. field. "dear sir: on yesterday i learned through our mutual friend charles s. fairfax, esq., that judge w.r. turner has recently issued a publication which contains a letter of mine, written him some four years ago. i have not been able to procure a copy of this publication, and i have entirely forgotten the language used; in truth i do not remember to have written him on the subject of yourself or otherwise; but i suppose i must have done so, and have given expressions of opinion that i have long since ceased to entertain, and to invectives that i have no disposition to justify. you will recall that, at the time referred to, there unfortunately existed between us feelings of deep hostility; and i may at the time have used harsh terms indicative of my then feelings, which i regret and do not now approve, if they are as represented by others." "judge turner has taken an unwarranted liberty in publishing the letter, be it of what character it may. he never requested my permission for this purpose, nor did i know that it was his intention." "trusting that this explanation may be satisfactory, i remain," "very respectfully yr. obt. servant," "wm. t. barbour." he ever afterwards, as occasion offered, spoke of me in the highest terms as a gentleman and lawyer. my resentment accordingly died out, but i never could feel any great regard for him. he possessed a fair mind and a kindly disposition, but he was vacillating and indolent. moreover, he loved drink and low company. he served out his second term and afterwards went to nevada, where his habits became worse, and he sunk so low as to borrow of his acquaintances from day to day small sums--one or two dollars at a time--to get his food and lodging. he died from the effects of his habits of intemperance. in stating the result of the intended hostile meeting with him, i mentioned that when he proceeded on his way to sacramento, he left his second, mr. fairfax, standing alone on the ground, and that i invited the latter to take a seat in my carriage. from this time the intercourse between mr. fairfax and myself became more frequent than it had been previously, and a friendship followed which continued as long as he lived. he was not sparing in his censure of the conduct of his principal, whilst his language was complimentary of mine. in a few months i became quite intimate with him, and i found him possessed of a noble and chivalric spirit. with great gentleness of manner, he had the most intrepid courage. his fidelity to his friends and devotion to their interests attached them strongly to him. he was beloved by all who knew him. no man in the state was more popular. he represented the county of yuba in the legislature two or three times, and at one session was speaker of the assembly. when the land office at marysville was established in , he was appointed register; and in , he was elected clerk of the supreme court of the state. it was my good fortune to aid him in securing both of these positions. at my suggestion, mr. mcdougal, a member of congress from california, urged the establishment of the land office, and obtained for him the appointment of register. in , when he sought the clerkship of the supreme court of the state, i became a delegate from yuba county to the state convention, and made his nomination for that office my special object, and with the aid of the rest of the delegation, succeeded in obtaining it. two or three incidents which i will relate will illustrate the character of the man. it was either in the session of or , i forget which, that a petition was presented to the assembly of california on the part of some of the colored people of the state, requesting that the laws then in force, which excluded them from being witnesses in cases where a white person was a party, might be repealed so as to allow them to testify in such cases. at that time there was a great deal of feeling throughout the country on the subject of slavery, and any attempt to legislate in behalf of the colored people was sure to excite opposition, and give rise to suggestions that its promoter was not sound on the slavery question. the presentation of the petition accordingly stirred up angry feelings. it created a perfect outburst of indignation, and some one moved that the petition should be thrown out of the window; and the motion was passed almost unanimously. if i recollect aright, there was but a single vote in the negative. i was standing by mr. fairfax when he was informed of the proceeding. he at once denounced it, and said, in energetic terms--"this is all wrong--the petition should have been received. if my horse or my dog could in any way express its wishes to me i would listen to it. it is a shame that a petition from any one, black or white, should not be received by the legislature of the state, whether it be granted or not." i was greatly impressed at that time with the manliness of this expression in a community which looked with suspicion on any movement in favor of extending any rights to the colored race. on another occasion, some years afterwards, when i was judge of the supreme court of the state and he was the clerk of the court, there was a good deal of complaint against harvey lee, the reporter of the court, who was appointed to the office by governor weller. i believe that lee was instrumental, but of this i am not certain, in getting a law passed which took the appointment of the reporter from the court and gave it to the governor. he was an inferior lawyer, and, of course, had very little practice. the appointment, therefore, to which a fair salary was attached, was eagerly sought by him. his reports, however, were so defective that an effort was made by the judges to get the law repealed and have the appointment restored to the court. this led to a bitter feeling on his part towards the judges, and in a conversation with mr. fairfax he gave vent to it in violent language. mr. fairfax resented the attack and an altercation ensued, when lee, who carried a sword-cane, drew the sword and ran it into fairfax's body. fortunately it entered the chest above the heart. withdrawing the sword lee made a second lunge at fairfax, which the latter partially avoided so as to receive only a flesh wound in the side. by this time fairfax had drawn his pistol and covered the body of lee, as he was raising his sword for a third thrust. lee, seeing the pistol, stepped back and threw up his arms exclaiming, "i am unarmed"--though he had only that moment withdrawn his sword from the body of fairfax, and it was then dripping with blood. "shoot the damned scoundrel," cried the latter's friend, samuel b. smith, then standing by his side. but fairfax did not shoot. looking at lee, whose body was covered with his pistol, while the blood was trickling from his own person, he said, "you are an assassin! you have murdered me! i have you in my power! your life is in my hands!" and gazing on him, he added, "but for the sake of your poor sick wife and children i will spare you." he thereupon uncocked his pistol and handed it to his friend, into whose arms he fell fainting. he had known the wife of lee when a young girl; and, afterwards, in speaking of the affair to a friend, he said, "i thought my wife would be a widow before sundown, and i did not wish to leave the world making another." all california rang with the story of this heroic act. it has its parallel only in the self-abnegation of the dying hero on the battle-field, who put away from his parched lips the cup of water tendered to him, and directed that it be given to a wounded soldier suffering in agony by his side, saying, "his need is greater than mine." during the war his sympathies, as was the case with most southerners in california, were with his people in virginia. he told me on one occasion that he could not but wish they would succeed; but, he said; "though i am a virginian by birth, i have adopted california, and whilst i live in a state which has taken her stand with the northern people, i cannot in honor do anything, and i will not, to weaken her attachment to the union. if my health were good i should leave the state and return to virginia and give my services to her; but, as that is impossible, i shall remain in california, and, whilst here, will not be false to her by anything i do or say." these incidents, better than any elaborate description, illustrate the character of the man. he was a lineal descendant of the great fairfax family which has figured so conspicuously in the history of england and of virginia. he was its tenth baron in a direct line. but notwithstanding the rank of his family he was a republican in his convictions. he loved his country and its institutions. he was himself more noble than his title. he came east to attend the national democratic convention in at the head of the delegates from california. after the convention, he spent some months among his friends and relatives at the old family residence in maryland. at this time the seeds of consumption, which had long been lurking in his system, began to be developed, and he was taken down with a severe illness which proved fatal. he became so ill as to be unable to walk, and was conveyed to baltimore to procure the best medical attendance; and there he died on the th of april, , in the arms of his devoted wife, who had come from california to be with him in his last hours. his body was brought to washington and interred within sight of the capitol, near hock creek church, in which his ancestors had worshipped. i have mentioned that when fairfax was stabbed by lee he fell into the arms of mr. samuel b. smith. this gentleman i had known slightly before my difficulty with judge barbour; but the intimacy which sprung up between fairfax and myself, after that affair, brought me more in contact with mr. smith, who was his constant companion. mr. smith came to california from new jersey in , and passed through some stirring scenes during that and the following year. he came with mr. john s. hagar, who was afterwards state senator, district judge, and united states senator, and was engaged with him in the mines in the winter of -' . in he settled in sutter county; and in the fall of was elected state senator from that county. having become more intimately acquainted with him after he was elected senator, i requested him to introduce a bill into the legislature, revising and amending the one which i had originally drawn concerning the courts and judicial officers of the state; and he cheerfully consented to do so, and took great interest in securing its passage. indeed, it was through his influence that the bill became a law. many circumstances threw us together after that, and i learned to appreciate his manly character, his generous disposition, and his great devotion to his friends. finally, in the fall of , we agreed to form a partnership after my return from the eastern states, which i then proposed to visit. after the barbour affair the course of my professional life was much the same as that of any other lawyer. my business was large and i gave to it my unremitting attention. in i determined to go east to see my parents and brothers and sisters, who had never been out of my mind a single day since i left them in . accordingly, i went east, and after passing a few months with them i returned to california in january, . after that i continued to practice my profession, with mr. smith as my partner, until the spring of , though during this period he went to washington as commissioner of the state to obtain from congress the payment of moneys expended by her in suppressing the hostilities of indians within her borders, and was absent several months. in april of that year we dissolved our partnership. a few months afterwards i was nominated for the bench of the supreme court of the state, and was elected by a large majority. there were two candidates besides myself for the position, and , votes were polled. of these i received a majority of , over each of my opponents, and , over them both together.[ ] the term to which i was elected was for six years, commencing january st, . in september, , hugh c. murray, then chief justice, died, and associate justice peter h. burnett was appointed to fill the vacancy. this left the balance of judge burnett's term of service to be filled, and i was urged by the governor of the state to accept his appointment to it, as it was for less than three months, and immediately preceded my own term. at first i refused, as i desired to revisit the east; but being assured by the judges that taking the place need not prevent my intended visit, i accepted the appointment, and on the th of october, , took my seat on the bench. [ ] see letter of judge mott detailing the particulars of the affair; exhibit h, in appendix. [ ] see exhibit i, in appendix. [ ] the exact vote was as follows: for myself , for nathaniel bennett , for j.p. ralston , ------ total vote , majority over bennett , majority over balston , majority over both , removal from marysville--life on the supreme bench.--end of judge turner. the day following my acceptance of the governor's appointment to the supreme court of the state, i returned to marysville to close my business before taking up my residence in sacramento, where the court held its sessions. i had gone to sacramento to argue some cases before the court when the appointment was tendered to me; and, of course, did not expect to remain there very long. in a few days i arranged my affairs at marysville and then removed permanently to sacramento. i left marysville with many regrets. i had seen it grow from a collection of tents with a few hundred occupants to a town of substantial buildings with a population of from eight to ten thousand inhabitants. from a mere landing for steamers it had become one of the most important places for business in the interior of the state. when i left, it was a depot of merchandise for the country lying north and east of it; and its streets presented a scene of bustle and activity. trains of wagons and animals were constantly leaving it with goods for the mines. its merchants were generally prosperous; some of them were wealthy. its bankers were men of credit throughout the state. steamers plied daily between it and sacramento, and stages ran to all parts of the country and arrived every hour. two daily newspapers were published in it. schools were opened and fully attended. churches of different denominations were erected and filled with worshippers. institutions of benevolence were founded and supported. a provident city government and a vigorous police preserved order and peace. gambling was suppressed or carried on only in secret. a theatre was built and sustained. a lecture-room was opened and was always crowded when the topics presented were of public interest. substantial stores of brick were put up in the business part of the city; and convenient frame dwellings were constructed for residences in the outskirts, surrounded with plats filled with trees and flowers. on all sides were seen evidences of an industrious, prosperous, moral, and happy people, possessing and enjoying the comforts, pleasures, and luxuries of life. and they were as generous as they were prosperous. their hearts and their purses were open to all calls of charity. no one suffering appealed to them in vain. no one in need was turned away from their doors without having his necessities relieved. it is many years since i was there, but i have never forgotten and i shall never forget the noble and generous people that i found there in all the walks of life. the supreme court of the state then consisted of three members, the senior in commission being the chief justice. david s. terry was the chief justice and peter h. burnett was the associate justice. both of these gentlemen have had a conspicuous career in california, and of both i have many interesting anecdotes which would well illustrate their characters and which at some future day i may put upon paper. they were both men of vigorous minds, of generous natures and of positive wills; but in all other respects they differed as widely as it was possible for two extremes. mr. terry had the virtues and prejudices of men of the extreme south in those days. his contact and larger experience since with men of the north have no doubt modified many of those prejudices, and his own good sense must have led him to alter some of his previous judgments. probably his greatest regret is his duel with mr. broderick, as such encounters, when they terminate fatally to one of the parties, never fail to bring life-long bitterness to the survivor. a wiser mode of settling difficulties between gentlemen has since been adopted in the state; but those who have not lived in a community where the duel is practiced cannot well appreciate the force of the public sentiment which at one time existed, compelling a resort to it when character was assailed. mr. burnett was one of the early settlers in oregon, and had held positions of honor and trust there before settling in california. he came here soon after the discovery of gold, took an interest in public affairs, and was elected the first governor of the state, when the constitution was adopted. judge terry resigned his office in september, , when he determined to send a challenge to mr. broderick, and i succeeded him as chief justice; and w.w. cope, of amador, was elected to fill the vacant place on the bench. i was absent from the state at the time, or i should have exerted all the power i possessed by virtue of my office to put a stop to the duel. i would have held both of the combatants to keep the peace under bonds of so large an amount as to have made them hesitate about taking further steps; and in the meantime i should have set all my energies to work, and called others to my aid, to bring about a reconciliation. i believe i should have adjusted the difficulty. mr. cope, who filled the vacant place on the bench, possessed a superior mind and a genial nature. he made an excellent judge. he studiously examined every case and carefully prepared his opinions. he remained on the bench until january, , when the new constitutional amendments, reorganizing the court, went into effect. he is now in practice in san francisco, and has a large clientage. judge burnett continued in office until the election of his successor in the fall of . his successor was joseph g. baldwin, a lawyer of distinction and a gentleman of literary reputation. he was the author of "the flush times of alabama and mississippi," and of "party leaders." the first is a work full of humor and a great favorite in the section of the country whose "times" it portrays with such spirit and glee as to excite roars of laughter in the reader. the latter is a thoughtful history of the character and influence upon the country of jefferson, hamilton, jackson, clay, and randolph. his portraitures present these men in the fullness and freshness of living beings, whom we see and hear, and whose power we feel. my friendship for mr. baldwin commenced long before he came to the bench, and it afterwards warmed into the attachment of a brother. he had a great and generous heart; there was no virtue of humanity of which he did not possess a goodly portion. he was always brimful of humor, throwing off his jokes, which sparkled without burning, like the flashes of a rocket. there was no sting in his wit. you felt as full of merriment at one of his witticisms, made at your expense, as when it was played upon another. yet he was a profound lawyer, and some of his opinions are models of style and reasoning. he remained on the bench until january, , when he was succeeded by edward norton, of san francisco. this gentleman was the exemplar of a judge of a subordinate court. he was learned, patient, industrious, and conscientious; but he was not adapted for an appellate tribunal. he had no confidence in his own unaided judgment. he wanted some one upon whom to lean. oftentimes he would show me the decision of a tribunal of no reputation with apparent delight, if it corresponded with his own views, or with a shrug of painful doubt, if it conflicted with them. he would look at me in amazement if i told him that the decision was not worth a fig; and would appear utterly bewildered at my waywardness when, as was sometimes the case, i refused to look at it after hearing by what court it was pronounced. it is not my purpose to speak of my own career on the bench of the supreme court of california. it is only for reminiscences of my previous life that you, mr. hittell, have asked.[ ] i am tempted, however, to hand to you a letter of judge baldwin, my associate for over three years, in which he presents, in terms exaggerated by his friendship, the result of my labors there.[ ] there is only one scene to which i wish to refer. about a year and a half after i went upon the bench, a contested election case came up from trinity county. it appeared that judge turner, who had been sent to the district composed of the counties of trinity and klamath, by the act concerning the courts and judicial officers of the state, at the end of his term offered himself for re-election as judge of that district. when the vote was counted there appeared to be a majority of one against him, and his opponent was declared elected. he instituted a contest for the office, and, being defeated in the court below, appealed to the supreme court. he then became very much exercised over his appeal, because i was one of the justices. there were not wanting persons who, out of sheer malice, or not comprehending any higher motives of conduct than such as governed themselves, represented that i would improve the opportunity to strike him a blow. when his case came on for hearing, i left the bench to my associates, judges terry and baldwin, and they decided in his favor. at this action of mine turner was amazed. it was something wholly unexpected and surprising to him. soon after the decision he sent one of his friends, named snowden, to know if i would speak to him if he should make the first advance. i answered that under no circumstances would i ever consent to speak to him; that he had done me injuries which rendered any intercourse with him impossible; that the world was wide enough for us both, and he must go his own way. this answer snowden communicated to him. the next morning he stationed himself at the foot of the stairway leading up to the supreme court rooms, which was on the outside of the building, and, as i passed up, he cried out; "i am now at peace with all the world; if there is any man who feels that i have done him an injury, i am ready to make him amends." i turned and looked at him for a moment, and then passed on without saying a word. on the following morning he took the same position and repeated substantially the same language. i stopped and gazed at him for a moment, and then passed on in silence. this was the last time i saw him. he returned to trinity, and held his office for the balance of his term, six years, under the decision of the supreme court, and was re-elected in . but his character and habits unfitted him for a judicial position. he was addicted to gambling and drinking, and he consorted with the lowest characters; and the same tyrannical temper and conduct which he had exhibited towards me in marysville, were displayed in his new district. accordingly measures were taken by citizens of trinity to secure his impeachment by the legislature. mr. westmoreland, a member of the assembly from that county in offered a resolution for the appointment of a committee to inquire whether articles of impeachment should be presented against him for high crimes and misdemeanors, with power to send for persons and papers and report articles if warranted by the evidence. in offering the resolution mr. westmoreland charged, that during the time turner had held the office of district judge he had been grossly tyrannical; that he had imprisoned citizens, depriving them of their liberty without process of law; that he had neglected and refused to perform the duties incumbent upon him by statute; that by a standing rule he allowed no witness to be called in a case unless he was subpoenaed and in attendance on the first day of the term; that he had used the power of his position for the furtherance of his own ends of private hate; that he was an habitual drunkard, with rare intervals of sobriety, and had upon occasions come into the court-room to sit upon the trial of causes so intoxicated as to be unable to stand, and had fallen helplessly upon the floor, whence he had been removed by officers of the court; that upon one occasion, when engaged in a trial, he had in the presence of jurors, witnesses, and other persons attending the court, deliberately gone out of the court-room and openly entered a house of ill-fame near by; and that by his disgraceful conduct he had become a burden upon the people of that district too grievous to be borne. these things mr. westmoreland stated he stood prepared to prove, and he invoked the interposition of the legislature to protect the people of the eighth judicial district who were suffering from the deportment and conduct of this officer. the resolution was passed. finding that articles of impeachment would be presented against him, turner resigned his office. after this his habits of drinking became worse, and he was sent to the asylum for inebriates, where he died. in thinking over my difficulties with turner at this distant day, there is nothing in my conduct which i in the least regret. had i acted differently; had i yielded one inch, i should have lost my self-respect and been for life an abject slave. there was undoubtedly an unnecessary severity of language in two or three passages of my answers to his attacks; and some portion of my answer in court to his order to show cause why i should not be re-expelled from the bar might better have been omitted. i have since learned that one is never so strong as when he is calm, and never writes so forcibly as when he uses the simplest language. my justification in these particulars, if they require any, must be found in the savage ferocity with which i was assailed, the brutal language applied to my character and conduct, and the constant threats made of personal violence. malignity and hate, with threats of assassination, followed me like a shadow for months. i went always armed for protection against assault. i should have been less or more than man had i preserved at all times perfect calmness either in my language or conduct. in the contest with this man i was cheered by the support of the best men of the state. but of all of them no one aided me so much, and so freely, as the editor of the marysville herald, mr. robert h. taylor, a gentleman still living, in the full strength of his intellect, and honored and trusted as a learned member of the legal profession in nevada. may length of years and blessings without number attend him. * * * * * here my narrative of "personal experiences" must for the present end. i could have given you, mr. hittell, more interesting matter. i could have given you sketches of fremont, halleck, gwin, broderick, weller, geary, sherman, bigler, mcdougal, bennett, heydenfeldt, murray, and others, with many striking anecdotes illustrative of their characters. they were all remarkable men, and the history of their lives would be full of interest and instruction. i could have related the story of the vigilance committees of and , and shown how the men of order and virtue acquired and maintained ascendency over the irregular and disorderly elements of society. i could have told you of the gradual development of the industries of the state until her yearly products have become one of the marvels of the world. i could have described the wild excitement produced by the supposed discoveries of gold in boundless quantities on fraser river; and the later but more substantial movement upon the development of the silver mines of nevada. i could have recounted the efforts made in and to keep the state in the union against the movements of the secessionists, and the communications had with president lincoln by relays of riders over the plains. i could have described the commencement, progress, and completion of the pacific railroad, and the wonderful energy and unfailing resolution of its constructors. i could have told you stories without number, full of interest, of the judges of california, state and federal, who preceded me on the bench, and of members of the profession; of hastings, bennett, lyons, wells, anderson, heydenfeldt, and murray, of the state supreme court; of hoffman and mcallister of the federal bench; of robinson, crittenden, randolph, williams, yale, mcconnell, felton, and others of the bar, now dead, and of some who are at its head, now living; composing as a whole a bar not exceeded in ability, learning, eloquence, and literary culture by that of any other state of the union. but you asked me merely for personal reminiscences, of occurrences at marysville and during the days preceding my going there. i will, therefore, postpone until another occasion a narrative which i think will be more interesting than anything i have here related. [ ] these sketches were in the main dictated to a short-hand writer at the request of mr. theodore h. hittell, of san francisco. [ ] the letter is printed at the end of this narrative at page . the career of judge field on the supreme bench of california, by judge joseph g. baldwin, his associate for three years. [_from the sacramento union, of may , ._] "the resignation by judge field of the office of chief justice of the supreme court of california, to take effect on the th instant, has been announced. by this event the state has been deprived of the ablest jurist who ever presided over her courts. judge field came to california from new york in , and settled in marysville. he immediately commenced the practice of law and rose at once to a high position at the local bar, and upon the organization of the supreme court soon commanded a place in the first class of the counsel practicing in that forum. for many years, and until his promotion to the bench, his practice was as extensive, and probably as remunerative, as that of any lawyer in the state. he served one or two sessions in the legislature, and the state is indebted to him for very many of the laws which constitute the body of her legislation.[ ] in he was nominated for judge of the supreme court for a full term, and in october of the same year was appointed by governor johnson to fill the unexpired term of justice heydenfeldt, resigned. he immediately entered upon the office, and has continued ever since to discharge its duties. recently, as the reader knows, he was appointed, by the unanimous request of our delegation in congress, to a seat upon the bench of the supreme court of the united states, and was confirmed, without opposition, by the senate. "like most men who have risen to distinction in the united states, judge field commenced his career without the advantages of wealth, and he prosecuted it without the factitious aids of family influence or patronage. he had the advantage, however--which served him better than wealth or family influence--of an accomplished education, and careful study and mental discipline. he brought to the practice of his profession a mind stored with professional learning, and embellished with rare scholarly attainments. he was distinguished at the bar for his fidelity to his clients, for untiring industry, great care and accuracy in the preparation of his cases, uncommon legal acumen, and extraordinary solidity of judgment. as an adviser, no man had more the confidence of his clients, for he trusted nothing to chance or accident when certainty could be attained, and felt his way cautiously to his conclusions, which, once reached, rested upon sure foundations, and to which he clung with remarkable pertinacity. judges soon learned to repose confidence in his opinions, and he always gave them the strongest proofs of the weight justly due to his conclusions. "when he came to the bench, from various unavoidable causes the calendar was crowded with cases involving immense interests, the most important questions, and various and peculiar litigation. california was then, as now, in the development of her multiform physical resources. the judges were as much pioneers of law as the people of settlement. to be sure something had been done, but much had yet to be accomplished; and something, too, had to be undone of that which had been done in the feverish and anomalous period that had preceded. it is safe to say that, even in the experience of new countries hastily settled by heterogeneous crowds of strangers from all countries, no such example of legal or judicial difficulties was ever before presented as has been illustrated in the history of california. there was no general or common source of jurisprudence. law was to be administered almost without a standard. there was the civil law, as adulterated or modified by mexican provincialism, usages, and habitudes, for a great part of the litigation; and there was the common law for another part, but _what that was_ was to be decided from the conflicting decisions of any number of courts in america and england, and the various and diverse considerations of policy arising from local and other facts. and then, contracts made elsewhere, and some of them in semi-civilized countries, had to be interpreted here. besides all which may be added that large and important interests peculiar to the state existed--mines, ditches, etc.--for which the courts were compelled to frame the law, and make a system out of what was little better than chaos. "when, in addition, it is considered that an unprecedented number of contracts, and an amount of business without parallel, had been made and done in hot haste, with the utmost carelessness; that legislation was accomplished in the same way, and presented the crudest and most incongruous materials for construction; that the whole scheme and organization of the government, and the relation of the departments to each other, had to be adjusted by judicial construction--it may well be conceived what task even the ablest jurist would take upon himself when he assumed this office. it is no small compliment to say that judge field entered upon the duties of this great trust with his usual zeal and energy, and that he leaves the office not only with greatly increased reputation, but that he has raised the character of the jurisprudence of the state. he has more than any other man given tone, consistency, and system to our judicature, and laid broad and deep the foundation of our civil and criminal law. the land titles of the state--the most important and permanent of the interests of a great commonwealth--have received from his hand their permanent protection, and this alone should entitle him to the lasting gratitude of the bar and the people. "his opinions, whether for their learning, logic, or diction, will compare favorably, in the judgment of some of our best lawyers, with those of any judge upon the supreme bench of the union. it is true what he has accomplished has been done with labor; but this is so much more to his praise, for such work was not to be hastily done, and it was proper that the time spent in perfecting the work should bear some little proportion to the time it should last. we know it has been said of judge field that he is too much of a 'case lawyer,' and not sufficiently broad and comprehensive in his views. this criticism is not just. it is true he is reverent of authority, and likes to be sustained by precedent; but an examination of his opinions will show that, so far from being a timid copyist, or the passive slave of authority, his rulings rest upon clearly defined principles and strong common sense. "he retires from office without a stain upon his ermine. millions might have been amassed by venality. he retires as poor as when he entered, owing nothing and owning little, except the title to the respect of good men, which malignant mendacity cannot wrest from a public officer who has deserved, by a long and useful career, the grateful appreciation of his fellow-citizens. we think that we may safely predict that, in his new place, justice field will fulfill the sanguine expectations of his friends." j.g.b. san francisco, _may , _. [ ] he was in the legislature only one session. * * * * * in a circuit court for california was created by congress, and clothed with the ordinary jurisdiction of the several circuit courts of the united states. hon. m. hall mcallister was appointed its judge. in january, , he resigned and my appointment as his successor was recommended by our senators. they telegraphed me what they had done, and i replied that i could not accept the place, that i preferred to remain chief justice of the supreme court of the state than to be a judge of an inferior federal court, but that if a new justice were added to the supreme court of the united states, i would accept the office if tendered to me. notwithstanding this reply my appointment was urged, and i was nominated by the president. the senators have since told me that they pressed my nomination from a belief that another justice would soon be added to the supreme court, and that the appointment would be made from the pacific states, and that if i were circuit judge it would more likely be tendered to me than to any one else. the interests of those states were so great, and from the character of their land titles, and their mines of gold and silver, were in some respects so different from those of the eastern states, that it was deemed important to have some one familiar with them on the supreme bench of the united states. accordingly, while my nomination for circuit judge was pending before the senate, a bill providing for an additional justice of the supreme court, and making the pacific states a new circuit, was introduced into both houses of congress, and on the last day of the session, march d, , it became a law. soon after the adjournment of congress, the entire delegation from the pacific states united in recommending my appointment to the new office. the delegation then consisted of four senators and four members of the house, of whom five were democrats and three republicans; all of them were union men. i was accordingly nominated by the president, and the nomination was unanimously confirmed by the senate. my commission was signed on the th of march, , and forwarded to me. i did not, however, take the oath of office and enter upon its duties until the th of may following. at the time i received the commission there were many important cases pending in the supreme court of california, which had been argued when only myself and one of the associate justices were present. i thought that these cases should be disposed of before i resigned, as otherwise a re-argument of them would be required, imposing increased expense and delay upon the parties. i therefore sent my resignation as chief justice to the governor, to take effect on the th of may. i selected that day, as i believed the cases argued could be decided by that time, and because it was the birthday of my father. i thought it would be gratifying to him to know that on the eighty-second anniversary of his birth his son had become a justice of the supreme court of the united states. accordingly on that day i took the oath of office.[ ] [ ] although i had informed the attorney-general of my action and delay in taking the oath of office, the salary of the office was sent to me from the date of my commission, march th, . i immediately deposited with the sub-treasurer at san francisco, to the credit of the united states, the proportion for the time between that date and the th of may, and informed the secretary of the treasury of the deposit, enclosing to him the sub-treasurer's receipt. * * * * * the annoyances of my judicial life. after the narrative of my personal reminiscences was completed, i concluded to dictate an account of some strange annoyances to which i had been subjected in the course of my judicial life. the account will have an interest to those of my friends for whom the reminiscences were printed, and it is intended for their perusal alone. rosy views of judicial life gradually vanishing.--unsettled land titles of the state.--asserted ownership by the state of gold and silver found in the soil.--present of a torpedo. when i went on the bench, i not only entertained elevated notions of the dignity and importance of the judicial office, but looked forward confidently to the respect and honor of the community from a faithful discharge of its duties. i soon discovered, however, that there would be but little appreciation for conscientious labor on the bench, except from a small number of the legal profession, until after the lapse of years. for the heavy hours of toil which the judges endured, for the long examination which they gave to voluminous records, for their nights of sleeplessness passed in anxious thought to ascertain what was true and right amidst a mass of conflicting evidence and doubtful principles, the public at large appeared to have little thought and less consideration. the cry of disappointment over frustrated schemes of cupidity and fraud was sufficient for the time to drown all other expressions of judgment upon the action of the court. the unsettled condition of the land titles of the state gave occasion to a great deal of litigation and was for a long time the cause of much bad feeling towards the judges who essayed to administer impartial justice. when california was acquired, the population was small and widely scattered. to encourage colonization, grants of land in large quantities, varying from one to eleven leagues, had been made to settlers by the mexican government. only small tracts were subjected to cultivation. the greater part of the land was used for grazing cattle, which were kept in immense herds. the grants were sometimes of tracts with defined boundaries, and sometimes of places by name, but more frequently of specified quantities within boundaries embracing a greater amount. by the mexican law, it was incumbent upon the magistrates of the vicinage to put the grantees in possession of the land granted to them; and for that purpose to measure off and segregate the quantity designated. owing to the sparseness of the population there was little danger of dispute as to boundaries, and this segregation in the majority of cases had been neglected before our acquisition of the country. from the size of the grants and the want of definite boundaries, arose nearly all the difficulties and complaints of the early settlers. upon the discovery of gold, immigrants from all parts of the world rushed into the country, increasing the population in one or two years from a few thousand to several hundred thousand. a large number crossed the plains from the western states, and many of them sought for farming lands upon which to settle. to them a grant of land, leagues in extent, seemed a monstrous wrong to which they could not be reconciled. the vagueness, also, in many instances, of the boundaries of the land claimed gave force and apparent reason to their objections. they accordingly settled upon what they found unenclosed or uncultivated, without much regard to the claims of the mexican grantees. if the land upon which they thus settled was within the tracts formerly occupied by the grantees with their herds, they denied the validity of grants so large in extent. if the boundaries designated enclosed a greater amount than that specified in the grants, they undertook to locate the supposed surplus. thus, if a grant were of three leagues within boundaries embracing four, the immigrant would undertake to appropriate to himself a portion of what he deemed the surplus; forgetting that other immigrants might do the same thing, each claiming that what he had taken was a portion of such surplus, until the grantee was deprived of his entire property. when i was brought to consider the questions to which this condition of things gave rise, i assumed at the outset that the obligations of the treaty with mexico were to be respected and enforced. this treaty had stipulated for the protection of all rights of property of the citizens of the ceded country; and that stipulation embraced inchoate and equitable rights, as well as those which were perfect. it was not for the supreme court of california to question the wisdom or policy of mexico in making grants of such large portions of her domain, or of the united states in stipulating for their protection. i felt the force of what judge grier had expressed in his opinion in the case of the united states vs. sutherland, in the th of howard, that the rhetoric which denounced the grants as enormous monopolies and princedoms might have a just influence when urged to those who had a right to give or refuse; but as the united states had bound themselves by a treaty to acknowledge and protect all _bona fide_ titles granted by the previous government, the court had no discretion to enlarge or contract such grants to suit its own sense of propriety or to defeat just claims, however extensive, by stringent technical rules of construction to which they were not originally subjected. since then, while sitting on the bench of the supreme court of the united states, i have heard this obligation of our government to protect the rights of mexican grantees stated in the brilliant and powerful language of judge black. in the fossat case, referring to the land claimed by one justo larios, a mexican grantee, he said: "the land we are claiming never belonged to this government. it was private property under a grant made long before our war with mexico. when the treaty of guadalupe hidalgo came to be ratified--at the very moment when mexico was feeling the sorest pressure that could be applied to her by the force of our armies, and the diplomacy of our statesmen--she utterly refused to cede her public property in california unless upon the express condition that all private titles should be faithfully protected. we made the promise. the gentleman sits on this bench who was then our minister there.[ ] with his own right hand he pledged the sacred honor of this nation that the united states would stand over the grantees of mexico and keep them safe in the enjoyment of their property. the pledge was not only that the government itself would abstain from all disturbance of them, but that every blow aimed at their rights, come from what quarter it might, should be caught upon the broad shield of our blessed constitution and our equal laws." "it was by this assurance thus solemnly given that we won the reluctant consent of mexico to part with california. it gave us a domain of more than imperial grandeur. besides the vast extent of that country, it has natural advantages such as no other can boast. its valleys teem with unbounded fertility, and its mountains are filled with inexhaustible treasures of mineral wealth. the navigable rivers run hundreds of miles into the interior, and the coast is indented with the most capacious harbors in the world. the climate is more healthful than any other on the globe: men can labor longer with less fatigue. the vegetation is more vigorous and the products more abundant; the face of the earth is more varied, and the sky bends over it with a lovelier blue.--that was what we gained by the promise to protect men in the situation of justo larios, their children, their alienees, and others claiming through them. it is impossible that in this nation they will ever be plundered in the face of such a pledge."--( wallace, .) actuated by this principle--that fidelity to a nation's pledge is a sacred duty, and that justice is the highest interest of the country, i endeavored, whenever the occasion presented itself, and my associates heartily co-operated with me, to protect the mexican grantees. their grants contained a stipulation for the possession of the lands granted, inasmuch as they were subject to the conditions of cultivation and occupancy, and a failure to comply with the conditions was considered by the tribunals of the united states as a most material circumstance in the determination of the right of the grantees to a confirmation of their claims. i held, therefore, with the concurrence of my associates, that the grantees, whether they were to be considered as having a legal or an equitable right to the lands, were entitled to their possession until the action of the government upon their claims, and, therefore, that they could recover in ejectment. and when the grant was not a mere float, but was of land within defined boundaries, which embraced a greater quantity than that specified in it, with a provision that the surplus should be measured off by the government, i held that until such measurement the grantee could hold the whole as against intruders, and until then he was a tenant in common with the government. as i said in one of my opinions, speaking for the court, until such measurement no individual could complain, much less could he be permitted to determine in advance, that any particular locality would fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself. "if one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is the donee of the government, would be stripped of its bounty for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors."[ ] these views have since met with general assent in california and have been approved by the supreme court of the united states.[ ] but at that time they gave great offence to a large class, and the judges were denounced in unmeasured terms as acting in the interests of monopolists and land-grabbers. even now, when the wisdom and justice of their action are seen and generally recognized, words of censure for it are occasionally whispered through the press. persons sometimes seem to forget that to keep the plighted faith of the nation, to preserve from reproach its fair fame, where its honor is engaged, is one of the highest duties of all men in public life. the action of the court as to the possession of the public lands of the united states met with more favor. the position of the people of california with respect to the public lands was unprecedented. the discovery of gold brought, as already stated, an immense immigration to the country. the slopes of the sierra nevada were traversed by many of the immigrants in search of the precious metals, and by others the tillable land was occupied for agricultural purposes. the title was in the united states, and there had been no legislation by which it could be acquired. conflicting possessory claims naturally arose, and the question was presented as to the law applicable to them. as i have mentioned in my narrative of reminiscences, the legislature in had provided that in suits before magistrates for mining claims, evidence of the customs, usages, and regulations of miners in their vicinage should be admissible, and, when not in conflict with the constitution and laws of the united states, should govern their decision, and that the principle thus approved was soon applied in actions for mining claims in all courts. in those cases it was considered that the first possessor or appropriator of the claim had the better right as against all parties except the government, and that he, and persons claiming under him, were entitled to protection. this principle received the entire concurrence of my associates, and was applied by us, in its fullest extent, for the protection of all possessory rights on the public lands. thus, in coryell vs. cain, i said, speaking for the court: "it is undoubtedly true, as a general rule, that the claimant in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's, and that it is a sufficient answer to his action to show title out of him and in a third party. but this general rule has, in this state, from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country, been, to a certain extent, qualified and limited. the larger portion of the mining lands within the state belong to the united states, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount title of the government would operate to defeat them, confusion and ruin would be the result. in determining controversies between parties thus situated, this court proceeds upon the presumption of a grant from the government to the first appropriator of mines, water privileges, and the like. this presumption, which would have no place for consideration as against the assertion of the rights of the superior proprietor, is held absolute in all those controversies. and with the public lands which are not mineral lands, the title, as between citizens of the state, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him."--( cal., p. .) the difficulties attendant upon any attempt to give security to landed possessions in the state, arising from the circumstances i have narrated, were increased by an opinion, which for some time prevailed, that the precious metals, gold and silver, found in various parts of the country, whether in public or private lands, belonged to the state by virtue of her sovereignty. to this opinion a decision of the supreme court of the state, made in , gave great potency. in hicks vs. bell, decided that year, the court came to that conclusion, relying upon certain decisions of the courts of england recognizing the right of the crown to those metals. the principal case on the subject was that of the queen vs. the earl of northumberland, reported in plowden. the counsel of the queen in that case gave, according to our present notions, some very fanciful reasons for the conclusion reached, though none were stated in the judgment of the court. there were three reasons, said the counsel, why the king should have the mines and ores of gold and silver within the realm, in whatsoever land they were found: "the first was, in respect to the excellency of the thing, for of all things which the soil within this realm produces or yields, gold and silver are the most excellent, and of all persons in the realm, the king is, in the eye of the law, most excellent. and the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all others; and because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the king.--the second reason was, in respect of the necessity of the thing. for the king is the head of the weal-public and the subjects are his members; and the office of the king, to which the law has appointed him, is to preserve his subjects; and their preservation consisted in two things, viz., in an army to defend them against hostilities, and in good laws. and an army cannot be had and maintained without treasure, for which reason some authors, in their books, call treasure the sinews of war; and, therefore, inasmuch as god has created mines within this realm, as a natural provision of treasure for the defence of the realm, it is reasonable that he who has the government and care of the people, whom he cannot defend without treasure, should have the treasure wherewith to defend them.--the third reason was, in respect of its convenience to the subjects in the way of mutual commerce and traffic. for the subjects of the realm must, of necessity, have intercourse or dealing with one another, for no individual is furnished with all necessary commodities, but one has need of the things which another has, and they cannot sell or buy together without coin.--and if the subject should have it (the ore of gold or silver) the law would not permit him to coin it, nor put a print or value upon it, for it belongs to the king only to fix the value of coin, and to ascertain the price of the quantity, and to put the print upon it, which being done, the coin becomes current for so much as the king has limited.--so that the body of the realm would receive no benefit or advantage if the subject should have the gold and silver found in mines in his land; but on the other hand, by appropriating it to the king, it tends to the universal benefit of all the subjects in making their king able to defend them with an army against all hostilities, and when he has put the print and value upon it, and has dispersed it among his subjects, they are thereby enabled to carry on mutual commerce with one another, and to buy and sell as they have occasion, and to traffic at their pleasure. therefore, for these reasons, viz., for the excellency of the thing, and for the necessity of it, and the convenience that will accrue to the subjects, the common law, which is no other than pure and tried reason, has appropriated the ore of gold and silver to the king, in whatever land it be found." the supreme court of the state, without considering the reasons thus assigned in the case in plowden, adopted its conclusion; and as the gold and silver in the british realm are there held to belong to the crown, it was concluded, on the hypothesis that the united states have no municipal sovereignty within the limits of the state, that they must belong in this country to the state. the state, therefore, said the court, "has solely the right to authorize them" (the mines of gold and silver) "to be worked; to pass laws for their regulation; to license miners; and to affix such terms and conditions as she may deem proper to the freedom of their use. in the legislation upon this subject she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions, and she has wisely provided that their conflicting claims shall be adjudicated by the rules and customs which may be established by bodies of them working in the same vicinity."--( cal., .) the miners soon grasped the full scope of this decision, and the lands of private proprietors were accordingly invaded for the purpose of mining as freely as the public lands. it was the policy of the state to encourage the development of the mines, and no greater latitude in exploration could be desired than was thus sanctioned by the highest tribunal of the state. it was not long, however, before a cry came up from private proprietors against the invasion of their possessions which the decision had permitted; and the court was compelled to put some limitation upon the enjoyment by the citizen of this right of the state. accordingly, within two years afterwards, in stoakes vs. barrett, ( cal., ,) it held that although the state was the owner of the gold and silver found in the lands of private individuals as well as in the public lands, "yet to authorize an invasion of private property in order to enjoy a public franchise would require more specific legislation than any yet resorted to." the spirit to invade other people's lands, to which the original decision gave increased force against the intention of its authors, could not be as easily repressed as it was raised in the crowd of adventurers, who filled the mining regions. accordingly, long before i went on the bench, the right to dig for the precious metals on the lands of private individuals was stoutly asserted under an assumed license of the state. and afterwards, in the case of biddle boggs vs. the merced mining co., which came before the court in , where the plaintiff claimed under a patent of the united states, issued upon the confirmation of a mexican grant, the existence of this license was earnestly maintained by parties having no connection with the government, nor any claim of title to the land. its existence was, however, repudiated by the court, and speaking for it in that case i said: "there is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship, and under this pretended license the whole might be invaded, and, for all useful purposes, destroyed, no matter how little remunerative the product of the mining. the entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gardens, or otherwise. under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting. what value would there be to a title in one man, with a right of invasion in the whole world? and what property would the owner possess in mineral land--the same being in fact to him poor and valueless just in proportion to the actual richness and abundance of its products? there is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber, and occupy his land, under the pretence that he has reason to believe there is gold under the surface, or if existing, that he wishes to extract and remove it." at a later day the court took up the doctrine, that the precious metals belonged to the state by virtue of her sovereignty, and exploded it. the question arose in moore vs. smaw, reported in th california, and in disposing of it, speaking for the court, i said: "it is undoubtedly true that the united states held certain rights of sovereignty over the territory which is now embraced within the limits of california, only in trust for the future state, and that such rights at once vested in the new state upon her admission into the union. but the ownership of the precious metals found in public or private lands was not one of those rights. such ownership stands in no different relation to the sovereignty of a state than that of any other property which is the subject of barter and sale. sovereignty is a term used to express the supreme political authority of an independent state or nation. whatever rights are essential to the existence of this authority are rights of sovereignty. thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses, termed the right of eminent domain, are all rights of sovereignty, for they are rights essential to the existence of supreme political authority. in this country, this authority is vested in the people, and is exercised through the joint action of their federal and state governments. to the federal government is delegated the exercise of certain rights or powers of sovereignty; and with respect to sovereignty, rights and powers are synonymous terms; and the exercise of all other rights of sovereignty, except as expressly prohibited, is reserved to the people of the respective states, or vested by them in their local governments. when we say, therefore, that a state of the union is sovereign, we only mean that she possesses supreme political authority, except as to those matters over which such authority is delegated to the federal government, or prohibited to the states; in other words, that she possesses all the rights and powers essential to the existence of an independent political organization, except as they are withdrawn by the provisions of the constitution of the united states. to the existence of this political authority of the state--this qualified sovereignty, or to any part of it--the ownership of the minerals of gold and silver found within her limits is in no way essential. the minerals do not differ from the great mass of property, the ownership of which may be in the united states, or in individuals, without affecting in any respect the political jurisdiction of the state. they may be acquired by the state, as any other property may be, but when thus acquired she will hold them in the same manner that individual proprietors hold their property, and by the same right; by the right of ownership, and not by any right of sovereignty." and referring to the argument of counsel in the case in plowden, i said that it would be a waste of time to show that the reasons there advanced in support of the right of the crown to the mines could not avail to sustain any ownership of the state in them. the state takes no property by reason of "the excellency of the thing," and taxation furnishes all requisite means for the expenses of government. the convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coinage appertains to sovereignty. but the exercise of this right does not require the ownership of the precious metals by the state, nor by the federal government, where this right is lodged under our system, as the experience of every day demonstrates. i also held that, although under the mexican law the gold and silver found in land did not pass with a grant of the land, a different result followed, under the common law, when a conveyance of land was made by an individual or by the government. by such conveyance everything passed in any way connected with the land, forming a portion of its soil or fixed to its surface. the doctrine of the right of the state by virtue of her sovereignty to the mines of gold and silver perished with this decision. it was never afterwards seriously asserted. but for holding what now seems so obvious, the judges were then grossly maligned as acting in the interest of monopolists and land owners, to the injury of the laboring class. the decisions, however, which caused for the time the greatest irritation, and excited the bitterest denunciation of the judges, related to the titles to land in the city of san francisco, though in the end they proved to be of incalculable benefit. upon the acquisition of california, there was a mexican pueblo upon the site of the city. the term _pueblo_ is aptly translated by the english word _town_. it has all the vagueness of that term, and is equally applicable to a settlement of a few individuals at a particular place, or to a regularly organized municipality. the _pueblo_ of san francisco was composed of a small population; but, as early as , it was of sufficient importance to have an _ayuntamiento_ or town council, composed of alcaldes and other officers, for its government. at the time of our acquisition of the country it was under the government of alcaldes or justices of the peace. by the laws of mexico, then in force, _pueblos_ or towns, when once officially recognized as such by the appointment of municipal magistrates, became entitled to four square leagues of land, to be measured off and assigned to them by the officers of the government. under these laws the city of san francisco, as successor of the mexican pueblo, asserted a claim to such lands, to be measured off from the northern portion of the peninsula upon which the city is situated. and the alcaldes, assuming an authority similar to that possessed by _alcaldes_ in other _pueblos_, exercised the power of distributing these municipal lands in small parcels to settlers for building, cultivation, and other uses. when the forces of the united states took possession of the city, the alcaldes, holding under the mexican government, were superseded by persons appointed by our military or naval officers having command of the place. with the increase of population which followed the discovery of gold, these magistrates were besieged by applicants for grants of land; and it was refreshing to see with what generous liberality they disposed of lots in the city--a liberality not infrequent when exercised with reference to other people's property. lots, varying in size from fifty to one hundred varas square, (a measure nearly equal to our yard,) were given away as freely as they were asked, only a small fee to meet necessary charges for preparing and recording the transfers being demanded. thus, for the lot occupied by the lick house, and worth now nearly a million, only a few dollars, less i believe than twenty, were paid. and for the lot covered by the grand hotel, admitted to be now worth half a million, less than thirty-five dollars were paid. the authority of the alcaldes to dispose of the lands was questioned by many of the new immigrants, and the validity of their grants denied. they asserted that the land was part of the public property of the united states. many holding these views gave evidence of the earnestness of their convictions by immediately appropriating to themselves as much vacant land in the city as they could conveniently occupy. disputes followed, as a matter of course, between claimants under the alcalde grants and those holding as settlers, which often gave rise to long and bitter litigation. the whole community was in fact divided between those who asserted the existence of a _pueblo_ having a right to the lands mentioned, and the power of the alcaldes to make grants of them; and those who insisted that the land belonged to the united states. early in , after the state government was organized, the legislature incorporated the city of san francisco; and, as is usual with municipal bodies not restrained by the most stringent provisions, it contracted more debts than its means warranted, and did not always make provision for their payment at maturity. numerous suits, therefore, were instituted and judgments were recovered against the city. executions followed, which were levied upon the lands claimed by her as successor of the _pueblo_. where the occupants denied the title of the city, they were generally indifferent to the sales by the sheriff. property of immense value, in some cases many acres in extent, was, in consequence, often struck off to bidders at a merely nominal price. upon the deeds of the officer, suits in ejectment were instituted in great numbers; and thus questions as to the existence of the alleged _pueblo_, and whether, if existing, it had any right to land, and the nature of such right, if any, were brought before the lower courts; and, finally, in a test case--hart vs. burnett--they found their way to the supreme court of the state. in the meantime a large number of persons had become interested in these sales, aside from the occupants of the land, and the greatest anxiety was manifested as to the decision of the court. previous decisions on the questions involved were not consistent; nor had they met the entire approval of the profession, although, the opinion prevailed generally that a mexican pueblo of some kind, owning or having an interest in lands, had existed on the site of the city upon the acquisition of the country, and that such lands, like other property of the city not used for public purposes, were vendible on execution. in , after the sale in respect to which the test case was made, the council of the city passed "the van ness ordinance," so called from the name of its author, the object of which was to settle and quiet, as far as practicable, the title of persons occupying land in the city. it relinquished and granted the right and interest of the city to lands within its corporate limits, as defined by the charter of , with certain exceptions, to parties in the actual possession thereof, by themselves or tenants, on or before the first of january, , if the possession were continued to the time of the introduction of the ordinance into the common council in june of that year; or, if interrupted by an intruder or trespasser, it had been or might be recovered by legal process. and it declared that, for the purposes of the act, all persons should be deemed in possession who held titles to land within the limits mentioned, by virtue of a grant made by the authorities of the pueblo, including alcaldes among them, before the th of july, ,--the day when the jurisdiction over the country is deemed to have passed from mexico to the united states,--or by virtue of a grant subsequently made by those authorities, if the grant, or a material portion of it, had been entered in a proper book of record deposited in the office or custody of the recorder of the county of san francisco on or before april d, . this ordinance was approved by an act of the legislature of the state in march, , and the benefit of it and of the confirmatory act was claimed by the defendant in the test case. that case was most elaborately argued by able and learned counsel. the whole law of mexico respecting _pueblos_, their powers, rights, and property, and whether, if possessing property, it was subject to forced sale, the effect upon such land of the change of sovereignty to the united states, the powers of alcaldes in disposing of the property of these municipalities, the effect of the van ness ordinance, and the confirmatory act of the legislature, were all discussed with a fullness and learning which left nothing unexplained or to be added. for weeks afterwards the judges gave the most laborious attention to the questions presented, and considered every point and the argument on both sides of it with anxious and painful solicitude to reach a just conclusion. the opinion of the court, prepared by mr. justice baldwin, is without precedent for the exhaustive learning and research it exhibits upon the points discussed. the court held, among other things, that, at the date of the conquest and cession of the country, san francisco was a pueblo, having the rights which the law of mexico conferred upon such municipal organizations; that as such pueblo it had proprietary rights to certain lands, which were held in trust for the public use of the city, and were not subject to seizure and sale under execution; that such portions as were not set apart for common use or special purposes could be granted in lots to private persons by its ayuntamiento or by alcaldes or other officers who represented or had succeeded to its powers; that the lands, and the trusts upon which they were held, were public and municipal in their nature, and since the organization of the state were under its control and supervision; that the act of the legislature confirming the van ness ordinance was a proper exercise of the power of the state, and vested in the possessors therein described, as against the city and state, a title to the lands mentioned; and that the city held the lands of the pueblo, not legally disposed of by its officers, unaffected by sheriff's sales under executions against her. this decision was of the greatest importance both to the city and the occupants of land within its limits. the van ness ordinance had reserved from grant for the uses of the city all the lots which it then occupied or had set apart for public squares, streets, sites for school-houses, city hall and other buildings belonging to the corporation, and also such other lots as it might subsequently select for public purposes within certain designated limits. all these were by the decision at once released from any possible claim by virtue of sales on executions. all persons occupying lands not thus reserved were by the decision quieted in their possession, so far as any claim of the city or state could be urged against them. property to the value of many millions was thereby rescued from the spoiler and speculator, and secured to the city or settler. peace was given to thousands of homes. yet for this just and most beneficent judgment there went up from a multitude, who had become interested in the sales, a fierce howl of rage and hate. attacks full of venom were made upon judge baldwin and myself, who had agreed to the decision. no epithets were too vile to be applied to us; no imputations were too gross to be cast at us. the press poured out curses upon our heads. anonymous circulars filled with falsehoods, which malignity alone could invent, were spread broadcast throughout the city, and letters threatening assassination in the streets or by-ways were sent to us through the mail. the violence of the storm, however, was too great to last. gradually it subsided and reason began to assert its sway. other words than those of reproach were uttered; and it was not many months before the general sentiment of the people of the city was with the decision. a year did not elapse before the great good it had conferred upon the city and settler was seen and appreciated. since then its doctrines have been repeatedly re-affirmed. they have been approved by the supreme court of the united states; and now no one doubts their soundness. after that decision there was still wanting for the complete settlement of titles in the city the confirmation by the tribunals of the united states of her claim to the lands. the act of congress of march d, , creating the board of land commissioners, provided that all claims to land in california, by virtue of any right or title derived from the spanish or mexican government, should be presented to the board for examination and adjudication. accordingly, the city of san francisco, soon after the organization of the board, in , presented her claim for four square leagues as successor of the _pueblo_, and asked for its confirmation. in december, , the board confirmed the claim for a portion of the four square leagues, but not for the whole; the portion confirmed being embraced within the charter limits of . the city was dissatisfied with this limitation, and appealed from the decision of the commissioners to the district court of the united states. an appeal was also taken by the united states, but was subsequently withdrawn. the case remained in the district court without being disposed of until september, , nearly ten years, when, under the authority of an act of congress of july st of that year, it was transferred to the circuit court of the united states. whilst the case was pending in the district court, the population of the city had increased more than four-fold; and improvements of a costly character had been made in all parts of it. the magnitude of the interests which had thus grown up demanded that the title to the land upon which the city rested should be in some way definitely settled. to expedite this settlement, as well as the settlement of titles generally in the state, was the object of the act of july st, . its object is so stated in its title. it was introduced by senator conness, of california, who was alive to everything that could tend to advance the interests of the state. he felt that nothing would promote its peace and prosperity more than giving security to its land titles, and he labored earnestly to bring about that result. in framing the act, he consulted me, and at my suggestion introduced sections four, five, and seven, which i drafted and gave to him, but without the exception and proviso to the fifth section, which were added at the request of the commissioner of the land office.[ ] the fourth section authorized the district court to transfer to the circuit court cases pending before it arising under the act of march d, , affecting the title to lands within the corporate limits of a city or town, and provided that in such cases both the district and circuit judges might sit. by the fifth section, all the right and title of the united states to the land within the corporate limits of the city, as defined by its charter of , were relinquished and granted to the city and its successors for the uses and purposes specified in the van ness ordinance. the exceptions incorporated at the suggestion of the commissioner of the land office related to parcels of land previously or then occupied by the united states for military, naval, or other public purposes, and such other parcels as might be subsequently designated for such purposes by the president within one year after the return to the land office of an approved plat of the exterior limits of the city. the holders of grants from the authorities of the _pueblo_ and the occupants of land within the limits of the charter of were thus quieted in their possessions. but as the claim of the city was for a much greater quantity, the case for its confirmation was still prosecuted. under the fourth section it was transferred to the circuit court, as already stated; and it was soon afterwards brought to a hearing. on the th of october, , it was decided. for some reason i do not now recall, the district judge was unable to sit with me, and the case was, therefore, heard before me alone. i held that a pueblo of some kind existed at the site of the present city of san francisco upon the cession of the country; that as such it was entitled to the possession of certain lands to the extent of four square leagues; and that the present city had succeeded to such rights, following, in these particulars, the decision which had previously been made in the case of hart vs. burnett, by the supreme court of the state, in which i had participated. i accordingly decided that the city was entitled to have her claim confirmed to four square leagues of land, subject to certain reservations. but i also added that the lands to which she was entitled had not been given to her by the laws of the former government in absolute property with full right of disposition and alienation, but to be held in trust for the benefit of the whole community, with such powers of use, disposition, and alienation as had been or might thenceforth be conferred upon her or her officers for the execution of the trust. the trust character of the city's title was expressed in the decree of confirmation. the decision was rendered on the th of october, , as stated, and a decree was soon afterwards entered; but as a motion was made for a re-hearing, the control over it was retained by the circuit court until may of the following year. upon the suggestion of counsel, it was then modified in some slight particulars so as to limit the confirmation to land above ordinary high water mark, as it existed at the date of the acquisition of the country, namely, the th of july, . on the th of may, , the decree was finally settled and entered. appeals from it were prosecuted to the supreme court both by the united states and by the city; by the united states from the whole decree, and by the city from so much of it as included certain reservations in the estimate of the quantity of land confirmed. in october following i proceeded as usual to washington to attend the then approaching term of the supreme court, and thought no more of the case until my attention was called to it by a most extraordinary circumstance. just before leaving san francisco mr. rulofson, a photographer of note, requested me to sit for a photograph, expressing a desire to add it to his gallery. i consented, and a photograph of a large size was taken. as i was leaving his rooms he observed that he intended to make some pictures of a small size from it, and would send me a few copies. on the morning of the th of january following ( ), at washington, mr. delos lake, a lawyer of distinction in california, at one time a district judge of the state, and then district attorney of the united states, joined me, remarking, as he did so, that the arrival of the california steamer at new york had been telegraphed, and he hoped that i had received some letters for him, as he had directed his letters to be forwarded to my care. i replied that when i left my room my messenger had not brought my mail; but if he would accompany me there we would probably find it. accordingly, we proceeded to my room, where on the centre-table lay my mail from california, consisting of a large number of letters and papers. among them i noticed a small package about an inch and a half thick, three inches in breadth, and three and a half in length. it was addressed as follows, the words being printed: [illustration: per steamer. [three postage stamps.] hon. stephen j. field, washington, d.c.] it bore the stamp of the san francisco post-office upon the address. my name had evidently been cut from the california reports, but the words "washington, d.c.," and "per steamer," had been taken from a newspaper. the slips were pasted on the package. on the opposite side were the words in print: [illustration: from geo. h. johnson's pioneer gallery, and clay street, san francisco.] as i took up the package i remarked that this must come from rulofson;--no, i immediately added, rulofson has nothing to do with the pioneer gallery. it then occurred to me that it might be a present for my wife, recollecting at the moment that the mail came by the steamer which sailed from san francisco about christmas time. it may be, i said to myself, a christmas present for my wife. i will open it just far enough to see, and, if it be intended for her, i will close it and forward it to new york, where she was at the time. i accordingly tore off the covering and raised the lid just far enough to enable me to look inside. i was at once struck with the black appearance of the inside. "what is this, lake?" i said, addressing myself to my friend. judge lake looked over my shoulder into the box, as i held it in my hand, and at once exclaimed, "it is a torpedo. don't open it." i was startled by the suggestion, for the idea of a torpedo was the last thing in the world to occur to me. i immediately laid the package on the sill of the window, where it was subjected to a careful inspection by us both, so far as it could be made with the lid only an eighth of an inch open. soon afterwards judge lake took the package to the capitol, which was directly opposite to my rooms, and to the office of the clerk of the supreme court, and showed it to mr. broom, one of the deputies. they dipped the package into water and left it to soak for some minutes. they then took it into the carriage way under the steps leading to the senate chamber, and shielding themselves behind one of the columns threw the box against the wall. the blow broke the hinge of the lid and exposed the contents. a murderous contrivance it was;--a veritable infernal machine! twelve cartridges such as are used in a common pistol, about an inch in length, lay imbedded in a paste of some kind, covered with fulminating powder, and so connected with a bunch of friction matches, a strip of sand-paper, and a piece of linen attached to the lid, that on opening the box the matches would be ignited and the whole exploded. the package was sent to the war department, and the following report was returned, giving a detailed description of the machine: washington arsenal, _jan. , _. _gen. a.b. dyer, chief of ordnance, washington, d.c._ sir: agreeably to your instructions, i have examined the explosive machine sent to this arsenal yesterday. it is a small miniature case containing twelve copper cartridges, such as are used in a smith & wesson pocket pistol, a bundle of sensitive friction matches, a strip of sand-paper, and some fulminating powder. the cartridges and matches are imbedded in common glue to keep them in place. the strip of sand-paper lies upon the heads of the matches. one end has been thrown back, forming a loop, through which a bit of thread evidently passed to attach it to the lid of the case. this thread may be seen near the clasp of the lid, broken in two. there are two wire staples, under which the strip of sand-paper was intended to pass to produce the necessary pressure on the matches. the thread is so fixed that the strip of sand-paper could be secured to the lid after it was closed. the whole affair is so arranged that the opening of the lid would necessarily ignite the matches, were it not that the lower end of the strip has become imbedded in the glue, which prevents it from moving. that the burning of the matches may explode the cartridges, there is a hole in each case, and all are covered with mealed powder. one of the cartridges has been examined and found to contain ordinary grain powder. two of the cartridges were exploded in a closed box sent herewith. the effect of the explosion was an indentation on one side of the box. very respectfully, your obedient servant, j.g. benton, _major of ord. and bvt. col. comdg._ between the outside covering and the box there were two or three folds of tissue-paper--placed there, no doubt, to prevent the possibility of an explosion from the stamping at the post office, or the striking against other packages during the voyage from san francisco to new york. on the inside of the lid was pasted a slip cut from a san francisco paper, dated october st, , stating that on the day previous i had decided the case of the city against the united states, involving its claim to four square leagues of land, and giving the opening lines of my opinion. the secretary of war, mr. stanton, immediately telegraphed in cypher to general halleck, then in command in san francisco, to take active measures to find out, if possible, the person who made and sent the infernal machine. general halleck put the detectives of his department on the search. others employed detectives of the san francisco police--but all in vain. suspicions were excited as to the complicity of different parties, but they were never sustained by sufficient evidence to justify the arrest of any one. the instrument, after remaining in the hands of the detectives in san francisco for nearly two years, was returned to me and it is now in my possession.[ ] it has often been a matter of wonder to me how it was that some good angel whispered to me not to open the box. my impetuous temperament would naturally have led me to tear it open without delay. probably such hesitation in opening a package directed to me never before occurred, and probably never will again. who knows but that a mother's prayer for the protection of her son, breathed years before, was answered then? who can say that her spirit was not then hovering over him and whispering caution in his ear? that i should on that occasion have departed from my usual mode of action is strange--passing strange. * * * * * as already stated, the fifth section of the act of congress of july st, , which granted the interest of the united states to the lands within the charter limits of to the city and its successors, in trust for the benefit of possessors under the van ness ordinance, among other things provided for certain reservations to be subsequently made by the president, within one year after an approved plat showing the exterior limits of the city had been filed in the land office. no such map was filed nor were any reservations made. the case on appeal in the meantime was not reached in the supreme court, and was not likely to be for a long period. ascertaining from general halleck that the secretary of war would not recommend any further reservations to be made from the municipal lands, and that probably none would be made, i drew a bill to quiet the title of the city to all the lands embraced within the decree of confirmation, and gave it to senator conness, who being ready, as usual, to act for the interests of the city, immediately took charge of it and secured its passage in the senate. in the house mr. mcruer, member of congress from california, took charge of it, and with the assistance of the rest of the delegation from the state, procured its passage there. it was signed by the president and became a law on the th of march, . by it all the right and title of the united states to the land covered by the decree of the circuit court were relinquished and granted to the city, and the claim to the land was confirmed, subject, however, to certain reservations and exceptions; and upon trust that all the land not previously granted to the city, should be disposed of and conveyed by the city to the parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of the act, in such quantities, and upon such terms and conditions, as the legislature of the state of california might prescribe, except such parcels thereof as might be reserved and set apart by ordinance of the city for public uses. not long afterwards both the appeals to the supreme court were dismissed by stipulation of parties. the litigation over the source of title to lands within the limits of the city, not disposed of by independent grants of the government previous to the acquisition of the country, was thus settled and closed. the title of the city rests, therefore, upon the decree of the circuit court entered on the th day of may, , and this confirmatory act of congress. it has been so adjudged by the supreme court of the united states.--(see townsend vs. greely, wall., ; grisar vs. mcdowell, wall., .) the title of the city being settled, the municipal authorities took measures, under the provisions of the confirmatory act, to set apart lands for school-houses, hospitals, court-house buildings, and other public purposes, and through their exertions, instigated and encouraged by mr. mccoppin, the accomplished and efficient mayor of the city at that time, the ocean park, which looks out upon the pacific ocean and the golden gate, and is destined to be one of the finest parks in the world, was set apart and secured to the city for all time. as the grounds thus taken were, in many instances, occupied by settlers, or had been purchased from them, an assessment was levied by the city and sanctioned by the legislature upon other lands conveyed to the occupants, as a condition of their receiving deeds from the city; and the money raised was applied to compensate those whose lands had been appropriated. [ ] mr. justice clifford. [ ] cornwall vs. culver, cal., . [ ] van reynegan vs. bolton, u.s., . [ ] see exhibit j, in appendix. [ ] see exhibit k, in appendix. hostility to the supreme court after the civil war.--the scofield resolution. the irritations and enmities created by the civil war did not end with the cessation of active hostilities. they were expressed whenever any acts of the military officers of the united states were called in question; or any legislation of the states or of congress in hostility to the insurgents was assailed; or the validity of the "reconstruction acts" was doubted. and they postponed that cordial reconciliation which all patriotic men earnestly desired. the insurrection was overthrown after a contest which, for its magnitude and the number and courage of the belligerents, was without a parallel in history. the immense loss of life and destruction of property caused by the contest, and the burden of the enormous debt created in its prosecution, left a bitterness in the hearts of the victors which it was difficult to remove. the assassination of mr. lincoln added intensity to the feeling. that act of a madman, who had conceived the idea that he might become in our history what brutus was in the history of rome, the destroyer of the enemy of his country, was ascribed to a conspiracy of leading confederates. the proclamation of the secretary of war, offering a reward for the arrest of parties charged with complicity in the act, gave support to this notion. the wildest stories, now known to have had no foundation, were circulated and obtained ready credence among the people of the north, already wrought up to the highest pitch of excitement. they manifested, therefore, great impatience when a doubt was cast upon the propriety or validity of the acts of the government, or of its officers, which were taken for the suppression of the rebellion or "the reconstruction" of the states; and to question their validity was almost considered proof of hostility to the union. by those who considered the union indissoluble, except by the common consent of the people of the several states, the organization known as the confederate states could only be regarded as unlawful and rebellious, to be suppressed, if necessary, by force of arms. the constitution prohibits any treaty, alliance, or confederation by one state with another, and it declares on its face that it is the supreme law of the land. the confederate government, therefore, could only be treated by the united states as the military representative of the insurrection against their authority. belligerent rights were accorded to its armed forces in the conduct of the war, and they thus had the standing and rights of parties engaged in lawful warfare. but no further recognition was ever given to it, and when those forces were overthrown its whole fabric disappeared. but not so with the insurgent states which had composed the confederacy. they retained the same form of government and the same general system of laws, during and subsequent to the war, which they had possessed previously. their organizations as distinct political communities were not destroyed by the war, although their relations to the central authority were changed. and their acts, so far as they did not impair or tend to impair the supremacy of the general government, or the rights of citizens of the loyal states, were valid and binding. all the ordinary authority of government for the protection of rights of persons and property, the enforcement of contracts, the punishment of crime, and the due order of society, continued to be exercised by them as though no civil war had existed. there was, therefore, a general expectation throughout the country, upon the cessation of actual hostilities, that these states would be restored to their former relations in the union as soon as satisfactory evidence was furnished to the general government that resistance to its authority was overthrown and abandoned, and its laws were enforced and obeyed. some little time might elapse before this result would clearly appear. it was not expected that they would be immediately restored upon the defeat of the armies of the confederacy, nor that their public men, with the animosities of the struggle still alive, would at once be admitted into the councils of the nation, and allowed to participate in its government. but whenever it was satisfactorily established that there would be no renewal of the struggle and that the laws of the united states would be obeyed, it was generally believed that the restoration of the states would be an accomplished fact. president johnson saw in the institution of slavery the principal source of the irritation and ill-feeling between the north and the south, which had led to the war. he believed, therefore, that its abolition should be exacted, and that this would constitute a complete guaranty for the future. at that time the amendment for its abolition, which had passed the two houses of congress, was pending before the states for their action. he was of opinion, and so expressed himself in his first message to congress, that its ratification should be required of the insurgent states on resuming their places in the family of the union; that it was not too much, he said, to ask of them "to give this pledge of perpetual loyalty and peace." "until it is done," he added, "the past, however much we may desire it, will not be forgotten. the adoption of the amendment re-unites us beyond all power of disruption. it heals the wound that is still imperfectly closed; it removes slavery, the element which has so long perplexed and divided the country; it makes of us once more a united people, renewed and strengthened, bound more than ever to mutual affection and support." it would have been most fortunate for the country had this condition been deemed sufficient and been accepted as such. but the north was in no mood for a course so simple and just. its leaders clamored for more stringent measures, on the ground that they were needed for the protection of the freedmen, and the defeat of possible schemes for a new insurrection. it was not long, therefore, before a system of measures was adopted, which resulted in the establishment at the south of temporary governments, subject to military control, the offices of which were filled chiefly by men alien to the states and indifferent to their interests. the misrule and corruption which followed are matters of public history. it is no part of my purpose to speak of them. i wish merely to refer to the state of feeling existing upon the close of the civil war as introductory to what i have to say of the unfriendly disposition manifested at the north towards the supreme court and some of its members, myself in particular. acts of the military officers, and legislation of some of the states and of congress, during and immediately succeeding the war, were soon brought to the consideration of the court. its action thereon was watched by members of the republican party with manifest uneasiness and distrust. its decision in the dred scott case had greatly impaired their confidence in its wisdom and freedom from political influences. many of them looked upon that decision as precipitating the war upon the country, by the sanction it gave to efforts made to introduce slavery into the territories; and they did not hesitate to express their belief that the sympathies of a majority of the court were with the confederates. intimations to that effect were thrown out in some of the journals of the day, at first in guarded language, and afterwards more directly, until finally it came to be generally believed that it was the purpose of the court, if an opportunity offered, to declare invalid most of the legislation relating to the southern states which had been enacted during the war and immediately afterwards. nothing could have been more unjust and unfounded. many things, indeed, were done during the war, and more after its close, which could not be sustained by any just construction of the limitations of the constitution. it was to be expected that many things would be done in the heat of the contest which could not bear the examination of calmer times. mr. chief justice chase expressed this fact in felicitous language when speaking of his own change of views as to the validity of the provision of law making government notes a legal tender, he said: "it is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the republic almost universal, different views, never before entertained by american statesmen or jurists, were adopted by many. the time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. if power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. many who doubted yielded their doubts; many who did not doubt were silent. those who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure. not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace, and under the influence of the calmer time, reconsidered this conclusion, and now concur in those which we have just announced." similar language might be used with reference to other things done during the war and afterwards, besides making government notes a legal tender. the court and all its members appreciated the great difficulties and responsibilities of the government, both in the conduct of the war, and in effecting an early restoration of the states afterwards, and no disposition was manifested at any time to place unnecessary obstacles in its way. but when its measures and legislation were brought to the test of judicial judgment there was but one course to pursue, and that was to apply the law and the constitution as strictly as though no war had ever existed. the constitution was not one thing in war, and another in peace. it always spoke the same language, and was intended as a rule for all times and occasions. it recognized, indeed, the possibility of war, and, of course, that the rules of war had to be applied in its conduct in the field of military operations. the court never presumed to interfere there, but outside of that field, and with respect to persons not in the military service within states which adhered to the union, and after the war in all the states, the court could not hesitate to say that the constitution, with all its limitations upon the exercise of executive and legislative authority, was, what it declares on its face to be, the supreme law of the land, by which all legislation, state and federal, must be measured. the first case growing out of the acts of military officers during the war, which attracted general attention and created throughout the north an uneasy feeling, was the milligan case, which was before the court on habeas corpus. in october, , milligan, a citizen of the united states and a resident of indiana, had been arrested by order of the military commander of the district and confined in a military prison near the capital of the state. he was subsequently, on the st of the same month, put on trial before a military commission convened at indianapolis, in that state, upon charges of: st. conspiring against the government of the united states; d. affording aid and comfort to the rebels against the authority of the united states; d. inciting insurrection; th. disloyal practices; and th. violations of the laws of war; and was found guilty and sentenced to death by hanging. he had never been in the military service; there was no rebellion in indiana; and the civil courts were open in that state and in the undisturbed exercise of their jurisdiction. the sentence of the military commission was affirmed by the president, who directed that it should be carried into immediate execution. the condemned thereupon presented a petition to the circuit court of the united states in indiana for a writ of habeas corpus, praying to be discharged from custody, alleging the illegality of his arrest and of the proceedings of the military commission. the judges of the circuit court were divided in opinion upon the question whether the writ should be issued and the prisoner be discharged, which, of course, involved the jurisdiction of the military commission to try the petitioner. upon a certificate of the division the case was brought to the supreme court at the december term of . the case has become historical in the jurisprudence of the country, and it is unnecessary to state the proceedings at length. suffice it to say that it was argued with great ability by eminent counsel--consisting of mr. joseph e. mcdonald, now u.s. senator from indiana, mr. james a. garfield, a distinguished member of congress, mr. jeremiah s. black, the eminent jurist of pennsylvania, and mr. david dudley field, of new york, for the petitioner; and by mr. henry stanbery, the attorney-general, and gen. b.f. butler, for the government. their arguments were remarkable for learning, research, ability, and eloquence, and will repay the careful perusal not only of the student of law, but of all lovers of constitutional liberty. only a brief synopsis of them is given in the report of the case in th wallace. the decision of the court was in favor of the liberty of the citizen. its opinion was announced by mr. justice davis, and it will stand as a perpetual monument to his honor. it laid down in clear and unmistakable terms the doctrine that military commissions organized during the war, in a state not invaded nor engaged in rebellion, in which the federal courts were open and in the undisturbed exercise of their judicial functions, had no jurisdiction to try a citizen who was not a resident of a state in rebellion, nor a prisoner of war, nor a person in the military or naval service; and that congress could not invest them with any such power; and that in states where the courts were thus open and undisturbed the guaranty of trial by jury contained in the constitution was intended for a state of war as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances. this decision was concurred in by justices nelson, grier, clifford, and myself, then constituting, with justice davis, a majority of the court. at this day it seems strange that its soundness should have been doubted by any one, yet it was received by a large class--perhaps a majority of the northern people--with disfavor, and was denounced in unmeasured terms by many influential journals. it was cited as conclusive evidence of the hostility of the court to the acts of the government for the suppression of the rebellion. the following, taken from the _daily chronicle_ of january th, , a journal of washington, edited by mr. forney, then secretary of the senate, is a fair sample of the language applied to the decision: "the opinion of the supreme court on one of the most momentous questions ever submitted to a judicial tribunal, has not startled the country more by its far-reaching and calamitous results, than it has amazed jurists and statesmen by the poverty of its learning and the feebleness of its logic. it has surprised all, too, by its total want of sympathy with the spirit in which the war for the union was prosecuted, and, necessarily, with those great issues growing out of it, which concern not only the life of the republic, but the very progress of the race, and which, having been decided on the battle-field, are now sought to be reversed by the very theory of construction which led to rebellion." at the same term with the milligan case the test-oath case from missouri was brought before the court and argued. in january, , a convention had assembled in that state to amend its constitution. its members had been elected in november previous. in april, , the constitution, as revised and amended, was adopted by the convention, and in june following by the people. elected, as the members were, in the midst of the war, it exhibited throughout traces of the animosities which the war had engendered. by its provisions the most stringent and searching oath as to past conduct known in history was required, not only of officers under it, but of parties holding trusts and pursuing avocations in no way connected with the administration of the government. the oath, divided into its separates parts, contained more than thirty distinct affirmations touching past conduct, and even embraced the expression of sympathies and desires. every person unable to take the oath was declared incapable of holding, in the state, "any office of honor, trust, or profit under its authority, or of being an officer, councilman, director, or trustee, or other manager of any corporation, public or private, now existing or hereafter established by its authority, or of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real estate or other property in trust for the use of any church, religious society, or congregation." and every person holding, at the time the amended constitution took effect, any of the offices, trusts, or positions mentioned, was required, within sixty days thereafter, to take the oath; and, if he failed to comply with this requirement, it was declared that his office, trust, or position should _ipso facto_ become vacant. no person, after the expiration of the sixty days, was permitted, without taking the oath, "to practice as an attorney or counsellor-at-law," nor, after that period could "any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman, of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages." fine and imprisonment were prescribed as a punishment for holding or exercising any of "the offices, positions, trusts, professions, or functions" specified, without having taken the oath; and false swearing or affirmation in taking it was declared to be perjury, punishable by imprisonment in the penitentiary. mr. cummings of missouri, a priest of the roman catholic church, was indicted and convicted in one of the circuit courts of that state, of the crime of teaching and preaching as a priest and minister of that religious denomination without having first taken the oath thus prescribed, and was sentenced to pay a fine of five hundred dollars and to be committed to jail until the same was paid. on appeal to the supreme court of the state the judgment was affirmed, and the case was brought on a writ of error to our court. it was there argued with great learning and ability by mr. montgomery blair, of washington, mr. david dudley field, of new york, and mr. reverdy johnson, of maryland, for mr. cummings; and by mr. g.p. strong and mr. john b. henderson, of missouri, the latter then united states senator for the state. it was evident, after a brief consideration of the case, that the power asserted by the state of missouri to exact this oath for past conduct from parties, as a condition of their continuing to pursue certain professions, or to hold certain trusts, might, if sustained, be often exercised in times of excitement to the oppression, if not ruin, of the citizen. for, if the state could require the oath for the acts mentioned, it might require it for any other acts of one's past life, the number and character of which would depend upon the mere will of its legislature. it might compel one to affirm, under oath, that he had never violated the ten commandments, nor exercised his political rights except in conformity with the views of the existing majority. indeed, under this kind of legislation, the most flagrant wrongs might be committed and whole classes of people deprived, not only of their political, but of their civil rights. it is difficult to speak of the whole system of expurgatory oaths for past conduct without a shudder at the suffering and oppression they were not only capable of effecting but often did effect. such oaths have never been exacted in england, nor on the continent of europe; at least i can recall no instance of the kind. test-oaths there have always been limited to an affirmation on matters of present belief, or as to present disposition towards those in power. it was reserved for the ingenuity of legislators in our country during the civil war to make test-oaths reach to past conduct. the court held that enactments of this character, operating, as they did, to deprive parties by legislative decree of existing rights for past conduct, without the formality and the safeguard of a judicial trial, fell within the inhibition of the constitution against the passage of bills of attainder. in depriving parties of existing rights for past conduct, the provisions of the constitution of missouri imposed, in effect, a punishment for such conduct. some of the acts for which such deprivation was imposed were not punishable at the time; and for some this deprivation was added to the punishments previously prescribed, and thus they fell under the further prohibition of the constitution against the passage of an _ex post facto_ law. the decision of the court, therefore, was for the discharge of the catholic priest. the judgment against him was reversed, and the supreme court of missouri was directed to order the inferior court by which he was tried to set him at liberty. immediately following the case of cummings that of _ex-parte_ garland was argued, involving the validity of the iron-clad oath, as it was termed, prescribed for attorneys and counsellors-at-law by the act of congress of january th, . mr. a.h. garland, now united states senator from arkansas, had been a member of the bar of the supreme court of the united states before the civil war. when arkansas passed her ordinance of secession and joined the confederate states, he went with her, and was one of her representatives in the congress of the confederacy. in july, , he received from the president a full pardon for all offences committed by his participation, direct or implied, in the rebellion. at the following term of the court he produced his pardon and asked permission to continue to practice as an attorney and counsellor without taking the oath required by the act of congress, and the rule of the court made in conformity with it, which he was unable to take by reason of the offices he had held under the confederate government. the application was argued by mr. matthew h. carpenter, of wisconsin, and mr. reverdy johnson, of maryland, for the petitioner--mr. garland and mr. marr, another applicant for admission, who had participated in the rebellion, filing printed arguments--and by mr. speed, of kentucky, and mr. henry stanbery, the attorney-general, on the other side. the whole subject of expurgatory oaths was discussed, and all that could be said on either side was fully and elaborately presented. the court in its decision followed the reasoning of the cummings case and held the law invalid, as applied to the exercise of the petitioner's right to practice his profession; that such right was not a mere indulgence, a matter of grace and favor, revocable at the pleasure of the court, or at the command of the legislature; but was a right of which the petitioner could be deprived only by the judgment of the court for moral or professional delinquency. the court also held that the pardon of the petitioner released him from all penalties and disabilities attached to the offence of treason committed by his participation in the rebellion, and that, so far as that offence was concerned, he was placed beyond the reach of punishment of any kind. but to exclude him by reason of that offence--that is, by requiring him to take an oath that he had never committed it--was to enforce a punishment for it notwithstanding the pardon; and that it was not within the constitutional power of congress thus to inflict punishment beyond the reach of executive clemency. i had the honor to deliver the opinion of the court in these cases--the cummings case and the garland case. at the present day both opinions are generally admitted to be sound, but when announced they were received by a portion of the northern press with apparent astonishment and undisguised condemnation. it is difficult to appreciate at this day the fierceness with which the majority of the court was assailed. that majority consisted of justices wayne, nelson, grier, clifford, and myself. i was particularly taken to task, however, as it was supposed--at least i can only so infer from the tone of the press--that because i had been appointed by mr. lincoln, i was under some sort of moral obligation to support all the measures taken by the states or by congress during the war. the following, respecting the opinion in the garland case, from the editor of the _daily chronicle_, of washington, to the _press_, of philadelphia, under date of january , , is moderate in its language compared with what appeared in many other journals: "dred scott number three has just been enacted in the supreme court of the united states, justice field, of california, taking the leading part as the representative of the majority decision against the constitutionality of the iron-clad test-oath, to prevent traitors from practicing before that high tribunal. i understand it takes the ground that, as the law is a living or profession, the oath cannot be insisted upon to take that living away, and that the president's pardon restores all such rights. the country has been repeatedly admonished that such a decision would be made about this time; nevertheless, a very considerable sensation was created when it was officially enunciated. all these movements are but preparations for a counter-revolution in the interest of slavery and treason." ---- "i learn that the opinion of justice field against the test-oath, like that against military trials in time of war, goes outside of the immediate case in issue, and indulges in a fierce onslaught upon test-oaths in general. if so, it will only add another reason for such a re-organization as will prevent the judges in the last resort from becoming the mere agents of party, or the mere defenders of rebellion. the adage constantly quoted, yet never out of fashion, that 'whom the gods wish to destroy they first make mad,' is having a pointed illustration in these successive judicial assaults upon the rights of the people. although the supreme judges hold for life, there is at once precedent, necessity, and law for such a change in the present system as will in a short time make it a fearless interpreter of republican institutions, instead of the defender and apologist of treason." the decisions were announced on the th of january, . on the d of the month, mr. boutwell, from massachusetts, introduced a bill into the house far more stringent in its provisions than the act of congress just declared invalid. it was a pitiable exhibition of hate and vengeance against all persons who had been engaged, directly or indirectly, in the rebellion. it declared that no person who had been thus engaged should be permitted to act as an attorney and counsellor in any courts of the united states; and made it the duty of the judges, when it was suggested in open court, or when they had reason to believe that any person was thus debarred, to enquire and ascertain whether he had been so engaged, and if the court was of opinion that such was the fact, he was to be excluded. the court was thus, upon the suggestion of any one, to be turned into a tribunal for the summary trial of the accused without the ordinary safeguards for the protection of his rights. in introducing it mr. boutwell, referring to the decision of the court, said that-- "if there be five judges upon the bench of the highest tribunal who have not that respect for themselves to enact rules, and to enforce proper regulations, by which they will protect themselves from the contamination of conspirators and traitors against the government of the country, then the time has already arrived when the legislative department of the government should exercise its power to declare who shall be officers of the government in the administration of the law in the courts of the union; and this bill is for that purpose." and he called for the previous question upon it. in subsequently advocating its passage, he said: "i say here upon my responsibility, with reference to the recent decision of the supreme court, that it is an offence to the dignity and respectability of the nation that this tribunal, under the general authority vested in it under the constitution and laws, does not protect itself from the contamination of rebels and traitors, until the rebellion itself shall be suppressed and those men shall be restored to their former rights as citizens of the country." this language was used in , and the last gun of the war had been fired in may, . it showed the irritation of violent partisans of the north against the court because it gave no sanction to their vindictive and proscriptive measures. the bill was passed, under a suspension of the rules, by a vote of to .[ ] the reconstruction acts, so-called--that is, "an act to provide for the more efficient government of the rebel states," of march d, , and an act of the d of the same month, supplementary to the former--were at once attacked, as may well be supposed, as invalid, unconstitutional, and arbitrary measures of the government; and various steps were taken at an early day to bring them to the test of judicial examination and arrest their enforcement. those acts divided the late insurgent states, except tennessee, into five military districts, and placed them under military control to be exercised until constitutions, containing various provisions stated, were adopted and approved by congress, and the states declared to be entitled to representation in that body. in the month of april following the state of georgia filed a bill in the supreme court, invoking the exercise of its original jurisdiction, against stanton, secretary of war, grant, general of the army, and pope, major-general, assigned to the command of the third military district, consisting of the states of georgia, florida, and alabama; to restrain those officers from carrying into effect the provisions of those acts. the bill set forth the existence of the state of georgia as one of the states of the union; the civil war in which she, with other states forming the confederate states, had been engaged with the government of the united states; the surrender of the confederate armies in , and her submission afterwards to the constitution and laws of the union; the withdrawal of the military government from georgia by the president as commander-in-chief of the army of the united states; the re-organization of the civil government of the state under his direction and with his sanction; and that the government thus re-organized was in the full possession and enjoyment of all the rights and privileges, executive, legislative, and judicial, belonging to a state in the union under the constitution, with the exception of a representation in the senate and house of representatives. the bill alleged that the acts were designed to overthrow and annul the existing government of the state, and to erect another and a different government in its place, unauthorized by the constitution and in defiance of its guarantees; that the defendants, acting under orders of the president, were about to set in motion a portion of the army to take military possession of the state, subvert her government, and subject her people to military rule. the presentation of this bill and the argument on the motion of the attorney-general to dismiss it produced a good deal of hostile comment against the judges, which did not end when the motion was granted. it was held that the bill called for judgment upon a political question, which the court had no jurisdiction to entertain.[ ] soon afterwards the validity of the reconstruction acts was again presented in the celebrated mcardle case, and in such a form that the decision of the question could not well be avoided. in november, , mcardle had been arrested and held in custody by a military commission organized in mississippi under the reconstruction acts, for trial upon charges of ( ) disturbance of the public peace; ( ) inciting to insurrection, disorder, and violence; ( ) libel; and ( ) impeding reconstruction. he thereupon applied to the circuit court of the united states for the district of mississippi for a writ of habeas corpus, in order that he might be discharged from his alleged illegal imprisonment. the writ was accordingly issued, but on the return of the officer showing the authority under which the petitioner was held, he was ordered to be remanded. from that judgment he appealed to the supreme court. of course, if the reconstruction acts were invalid, the petitioner could not be held, and he was entitled to his discharge. the case excited great interest throughout the country. judge sharkey and robert j. walker, of mississippi, david dudley field and charles o'connor, of new york, and jeremiah s. black, of pennsylvania, appeared for the appellant; and matthew h. carpenter, of wisconsin, lyman trumbull, of illinois, and henry stanbery, the attorney-general, appeared for the other side. the hearing of it occupied four days, and seldom has it been my fortune during my judicial life, now ( ) of nearly twenty years, to listen to arguments equal in learning, ability, and eloquence. the whole subject was exhausted. as the arguments were widely published in the public journals, and read throughout the country, they produced a profound effect. the impression was general that the reconstruction acts could not be sustained; that they were revolutionary and destructive of a republican form of government in the states, which the constitution required the federal government to guarantee. i speak now merely of the general impression. i say nothing of the fact, as the court never expressed its opinion in judgment. the argument was had on the d, d, th, and th of march, , and it ought to have been decided in regular course of proceedings when it was reached on the second subsequent consultation day, the st. the judges had all formed their conclusions, and no excuse was urged that more time was wanted for examination. in the meantime an act was quietly introduced into the house, and passed, repealing so much of the law of february th, , as authorized an appeal to the supreme court from the judgment of the circuit court on writs of _habeas corpus_, or the exercise of jurisdiction on appeals already taken. the president vetoed the bill, but congress passed it over his veto, and it became a law on the th of the month.[ ] whilst it was pending in congress the attention of the judges was called to it, and in consultation on the st they postponed the decision of the case until it should be disposed of. it was then that mr. justice grier wrote the following protest, which he afterwards read in court: in re } mcardle.} protest of mr. justice geier. this case was fully argued in the beginning of this month. it is a case that involves the liberty and rights not only of the appellant, but of millions of our fellow-citizens. the country and the parties had a right to expect that it would receive the immediate and solemn attention of this court. by the postponement of the case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the constitution, and waited for legislation to interpose to supersede our action and relieve us from our responsibility. i am not willing to be a partaker either of the eulogy or opprobrium that may follow; and can only say: "pudet haec opprobria nobis, et dici potuisse; et non potuisse repelli."[ ] r.c. grier. i am of the same opinion with my brother grier, and unite in his protest. field, j. after the passage of the repealing act, the case was continued; and at the ensuing term the appeal was dismissed for want of jurisdiction.--( wall., .) the record had been filed early in the term, and, as the case involved the liberty of the citizen, it was advanced on the calendar on motion of the appellant. from that time until its final disposition the judges were subjected to close observation, and most of them to unfriendly comment. their every action and word were watched and canvassed as though national interests depended upon them. i was myself the subject of a most extraordinary exhibition of feeling on the part of members of the lower house of congress, the immediate cause of which was a circumstance calculated to provoke merriment. towards the close of january, , i was invited to a dinner given by mr. samuel ward to the secretary of the treasury, mr. mccullough. it was understood that the dinner was to be one of unusual excellence, and that gentlemen of distinction in congress would be present. as some of the invited guests desired to go to new york on the same evening, the hour was fixed at five. a distinguished party assembled at that time at the rooms of welcker, a noted restaurateur in washington. our host, mr. ward, was a character deserving of special notice. he had been a member of the noted firm of bankers, prime, ward & king, of new york; and afterwards represented our government in brazil. he was an accomplished linguist, familiar with several languages, ancient and modern. he was a profound mathematician, and had read, without the assistance of bowditch's translation, laplace's celebrated work, the "mécanique céleste." he passed most of his time during the sessions of congress in washington, looking after the interests of bankers and others in new york, as they might be affected by pending legislation. though called "king of the lobby," he had little of the character of the lobbyist. he was a gentleman in manners and education, and as such he always drew the company of gentlemen to his entertainments. on the occasion mentioned, some of the brightest spirits of congress were present. as we took our seats at the table i noticed on the menu a choice collection of wines, johannisberg among others. the dinner was sumptuous and admirably served. our host saw that the appropriate wine accompanied the successive courses. as the dinner progressed, and the wine circulated, the wit of the guests sparkled. story and anecdote, laughter and mirth abounded, and each guest seemed joyous and happy. at about eight song had been added to other manifestations of pleasure. i then concluded that i had better retire. so i said to my host, that if he would excuse me, i would seek the open air; and i left. just at this moment mr. rodman m. price, formerly governor of new jersey, made his appearance and exclaimed, "how is this? i was invited to dinner at eight"--producing his card of invitation. "look again," said ward, "and you will see that your eight is a five," and so it was, "but never mind," said ward; "the dinner is not over. judge field has just left. take his seat." and so price took my place. he had been travelling in the southern states, and had been an observer of the proceedings of various state conventions then in session to frame constitutions under the reconstruction acts, which he termed "congo conventions." to the amusement of the party he gave an account of some curious scenes he had witnessed in these conventions; and wound up one or two of his stories by expressing his opinion that the whole reconstruction measures would soon be "smashed up" and sent to "kingdom come" by the supreme court. the loud mirth and the singing attracted the attention of news-hunters for the press--item gatherers in the rooms below. unfortunately one of these gentlemen looked into the banquet-hall just as price had predicted the fate of the reconstruction measures at the hands of the supreme court. he instantly smelt news, and enquired of one of the waiters the name of the gentleman who had thus proclaimed the action of the court. the waiter quietly approached the seat of the governor, and, whilst he was looking in another direction, abstracted the card near his plate which bore my name. here was, indeed, a grand item for a sensational paragraph. straight way the newsgatherer communicated it to a newspaper in washington, and it appeared under an editorial notice. it was also telegraphed to a paper in baltimore. but it was too good to be lost in the columns of a newspaper. mr. scofield, a member of congress from pennsylvania, on the th of january, , asked and obtained unanimous consent of the house to present the following preamble and resolution: "whereas it is editorially stated in the _evening express_, a newspaper published in this city, on the afternoon of wednesday, january , as follows: 'at a private gathering of gentlemen of both political parties, one of the justices of the supreme court spoke very freely concerning the reconstruction measures of congress, and declared in the most positive terms that all those laws were unconstitutional, and that the court would be sure to pronounce them so. some of his friends near him suggested that it was quite indiscreet to speak so positively; when he at once repeated his views in a more emphatic manner; 'and whereas several cases under said reconstruction measures are now pending in the supreme court: therefore, be it-- "_resolved_, that the committee on the judiciary be directed to enquire into the truth of the declarations therein contained, and report whether the facts as ascertained constitute such a misdemeanor in office as to require this house to present to the senate articles of impeachment against said justice of the supreme court; and that the committee have power to send for persons and papers, and have leave to report at any time." an excited debate at once sprung up in the house, and in the course of it i was stated to be the offending justice referred to. thereupon the members for california vouched for my loyalty during the war. other members wished to know whether an anonymous article in a newspaper was to be considered sufficient evidence to authorize a committee of the house to enquire into the private conversation of members of the supreme court. the mover of the resolution, mr. scofield, declared that he knew nothing of the truth of the statement in the paper, but deemed it sufficient authority for his action, and moved the previous question on the resolution. several of the members protested against the resolution, declaring that it was unworthy of the house to direct an investigation into the conduct of a judicial officer upon a mere newspaper statement. but it was of no use. the resolution was adopted by a vote of to -- not voting. some members, indeed, voted for its passage, stating that it was due to myself that i should be vindicated from the charge implied in the debate; the force of which reason i have never been able to appreciate. the resolution was evidently intended to intimidate me, and to act as a warning to all the judges as to what they might expect if they presumed to question the wisdom or validity of the reconstruction measures of congress. what little effect it had on me my subsequent course in the mcardle case probably showed to the house. i had only one feeling for the movement--that of profound contempt; and i believe that a similar feeling was entertained by every right-thinking person having any knowledge of the proceeding. the facts of the case soon became generally known, and created a good deal of merriment in washington. but all through the country the wildest stories were circulated. communications of a sensational character relating to the matter were published in the leading journals. here is one which appeared in the new york _evening post_ from its correspondent: "it is the intention of the committee to examine the matter thoroughly, and in view of this a large number of witnesses have been summoned to appear on friday. "the friends of justice field are endeavoring to hush the matter up, and, if possible, to avert an investigation; but in this they will be disappointed, for the members of the judiciary committee express themselves firmly determined to sift the case, and will not hesitate to report articles of impeachment against justice field if the statements are proved." other papers called for the strictest scrutiny and the presentation of articles of impeachment, representing that i was terribly frightened by the threatened exposure. so for some months i was amused reading about my supposed terrible excitement in anticipation of a threatened removal from office. but, as soon as the author of the objectionable observations was ascertained, the ridiculous nature of the subsequent proceedings became manifest. the chairman of the judiciary committee, mr. wilson, of iowa, occupied a seat next to me at mr. ward's dinner, and knew, of course, that, so far as i was concerned, the whole story was without foundation. and so he said to his associates on the judiciary comnfittee. near the close of the session--on june th, --the committee were discharged from the further consideration of the resolution, and it was laid on the table--a proceeding which was equivalent to its indefinite postponement. the amusing mistake which gave rise to this episode in the lower house of congress would be unworthy of the notice i have taken of it, except that it illustrates the virulent and vindictive spirit which occasionally burst forth for some time after the close of the war, and which, it is to be greatly regretted, is not yet wholly extinguished. [ ] congressional globe, th congress, d session, part i., pp. - . when the bill reached the senate it was referred to the judiciary committee, and by them to a sub-committee of which mr. stewart, senator from nevada, was chairman. he retained it until late in the session, and upon his advice, the committee then recommended its indefinite postponement. the bill was thus disposed of. [ ] th wallace, . [ ] stats. at large, . [ ] "it fills us with shame that these reproaches can be uttered, and cannot be repelled." the words are found in ovid's metamorphoses, book i., lines - . in some editions the last word is printed _refelli_. the moulin vexation. soon after my appointment to the bench of the u.s. supreme court, i had a somewhat remarkable experience with a frenchman by the name of alfred moulin. it seems that this man, sometime in the year had shipped several sacks of onions and potatoes on one of the mail steamers, from san francisco to panama. during the voyage the ship's store of fresh provisions ran out, and the captain appropriated the vegetables, and out of this appropriation originated a long and bitter prosecution, or rather persecution, on the part of moulin, who proved to be not only one of the most malignant, but one of the most persevering and energetic men i have ever known. upon the return of the steamer from panama to san francisco, moulin presented himself at the steamship company's office, and complained, as he properly might, of the appropriation of his property, and demanded compensation. the company admitted his claim and expressed a willingness to make him full compensation; but when it came to an adjustment of it, moulin preferred one so extravagant that it could not be listened to. the property at the very most was not worth more than one or two hundred dollars, but moulin demanded thousands; and when this was refused, he threatened messrs. forbes and babcock, the agents of the company, with personal violence. these threats he repeated from time to time for two or three years, until at length becoming annoyed and alarmed by his fierce manner, they applied to the police court and had him bound over to keep the peace. notwithstanding he was thus put upon his good behavior, moulin kept continually making his appearance and reiterating his demands at the steamship company's office. forbes and babcock repeatedly told him to go to a lawyer and commence suit for his claim; but moulin refused to do so, saying that he could attend to his own business as well as, and he thought better than, any lawyer. at length, to get rid of further annoyance, they told him he had better go to new york and see mr. aspinwall, the owner of the vessel, about the matter; and, to enable him to do so, gave him a free ticket over the entire route from san francisco to that city. upon arriving in new york, moulin presented himself to mr. aspinwall and asked that his claim should be allowed. mr. aspinwall said that he knew nothing about his claim and that he did not want to be bothered with it. moulin still insisted, and mr. aspinwall told him to go away. moulin thereupon became excited, said he was determined to be paid, and that he would not be put off. he thereupon commenced a regular system of annoyance. when mr. aspinwall started to go home from his office, moulin walked by his side along the street. when aspinwall got into an omnibus, moulin got in also; when aspinwall got out, moulin got out too. on the following morning, when aspinwall left his residence to go to his office, moulin was on hand, and taking his place, marched along by his side as before. if aspinwall hailed an omnibus and got in, moulin got in at the same time. if aspinwall got out and hailed a private carriage, moulin got out and hailed another carriage, and ordered the driver to keep close to mr. aspinwall's carriage. in fact, wherever aspinwall went moulin went also, and it seemed as if nothing could tire him out or deter him from his purpose. at length mr. aspinwall, who had become nervous from the man's actions, exclaimed, "my god, this man is crazy; he will kill me;" and calling him into the office, asked him what he wanted in thus following and persecuting him. moulin answered that he wanted pay for his onions and potatoes. aspinwall replied, "but i don't know anything about your onions and potatoes; how should i? go back to my agents in california, and they will do what is right. i will direct them to do so." "but," said moulin, "i have no ticket to go to california;" and thereupon aspinwall gave him a free ticket back to san francisco. moulin departed, and in due course of time again presented himself to forbes and babcock, in san francisco. at the re-appearance of the man, they were more annoyed than ever; but finally managed to induce him to commence a suit in the united states district court. when the case was called, by an understanding between his lawyer and the lawyer of the steamship company, judgment was allowed to be entered in moulin's favor for four hundred and three dollars and a half, besides costs. the amount thus awarded greatly exceeded the actual value of the onions and potatoes appropriated. it was thought by the defendant that on the payment of so large a sum, the whole matter would be ended. but moulin was very far from being satisfied. he insisted that the judgment ought to have been for three thousand and nine hundred dollars, besides interest, swelling the amount to over six thousand dollars, and applied to judge hoffman of the district court to set it aside. but as the judgment had been rendered for the full value of the property taken, as admitted by his lawyer, the judge declined to interfere. this was in . in i received my appointment as judge of the supreme court of the united states, and was assigned to the circuit embracing the district of california. moulin then appealed to the circuit court from the judgment in his favor, and at the first term i held, a motion was made to dismiss the appeal. i decided that the appeal was taken too late, and dismissed it. moulin immediately went to mr. gorham, the clerk of the court, for a copy of the papers, insisting that there was something wrong in the decision. gorham asked him what he meant, and he replied that i had no right to send him out of court, and that there was something wrong in the matter, but he could not tell exactly what it was. at this insinuation, gorham told him to leave the office, and in such a tone, that he thought proper to go at once and not stand upon the order of his going. the following year, after mr. delos lake had been appointed united states district attorney, moulin went to his office to complain of gorham and myself; but lake, after listening to his story, told him to go away. two or three years afterwards he again presented himself to lake and demanded that judge hoffman, gorham, and myself should be prosecuted. lake drove him a second time from his office; and thereupon he went before the united states grand jury and complained of all four of us. as the grand jury, after listening to his story for a while, dismissed him in disgust, be presented himself before their successors at a subsequent term and complained of them. from the federal court he proceeded to the state tribunals; and first of all he went to the county court of san francisco with a large bundle of papers and detailed his grievances against the united states judges, clerks, district attorney and grand jury. judge stanley, who was then county judge, after listening to moulin's story, told the bailiff to take possession of the papers, and when he had done so, directed him to put them into the stove, where they were soon burned to ashes. moulin then complained of stanley. at the same time, one of the city newspapers, the "evening bulletin," made some comments upon his ridiculous and absurd proceedings, and moulin at once sued the editors. he also brought suit against the district judge, district attorney and his assistant, myself, the clerk of the court, the counsel against him in the suit with the steamship company and its agents, and numerous other parties who had been connected with his various legal movements. and whenever the united states grand jury met, he besieged it with narratives of his imaginary grievances; and, when they declined to listen to him, he complained of them. the courts soon became flooded with his voluminous and accumulated complaints against judges, clerks, attorneys, jurors, editors, and, in fact, everybody who had any connection with him, however remote, who refused to listen to them and accede to his demands. by this course moulin attracted a good deal of attention, and an inquiry was suggested and made as to whether he was _compos mentis_. the parties who made the inquiry reported that he was not insane, but was actuated by a fiendish malignity, a love of notoriety and the expectation of extorting money by blackmail. for years--indeed until september, --he continued to besiege and annoy the grand juries of the united states courts with his imaginary grievances, until he became an intolerable nuisance. his exemption from punishment had emboldened him to apply to the officers of the court--the judges, clerks, and jurors--the most offensive and insulting language. papers filled with his billingsgate were scattered all through the rooms of the court, on the desks of the judges, and on the seats of jurors and spectators. it seemed impossible, under existing law, to punish him, for his case did not seem to fall within the class of contempts for which it provided. but in september of his insolence carried him beyond the limits of impunity. in that month he came to the united states circuit court, where judge sawyer (then united states circuit judge) and myself were sitting, and asked that the grand jury which was about to be discharged might be detained; as he proposed to have us indicted for corruption, and commenced reading a long string of vituperative and incoherent charges of criminal conduct. the proceeding was so outrageous that we could not overlook it. we accordingly adjudged him guilty of contempt, fined him five hundred dollars, and ordered him to be committed to prison until the fine should be paid. whilst in prison, and not long after his commitment, he was informed that upon making a proper apology for his conduct, he would he discharged. instead, however, of submitting to this course, he commenced writing abusive articles to the newspapers, and sending petitions to the legislature charging us with arbitrary and criminal conduct. his articles were of such a character as to create quite erroneous impressions of our action. the newspapers, not waiting to ascertain the facts, at first took sides with him and assailed us. these attacks, of course, had no effect upon the man's case; but, after he had remained in prison for several weeks, on understanding that his health was infirm, and being satisfied that he had been sufficiently punished, we ordered his discharge. the hastings malignity. whilst the moulin matter was in progress, an individual by the name of william hastings was practising before the united states courts. he had been, as i am told, a sailor, and was then what is known as a "sailor's lawyer." he was a typical specimen of that species of the profession called, in police court parlance, "shysters." he was always commencing suits for sailors who had wrongs to redress, and particularly for steerage passengers who complained that they had not had sufficient accommodations and proper fare. he generally took their cases on speculation, and succeeded very often in forcing large sums from vessels libelled, as he was generally careful to bring his actions so as to arrest the vessels on the eve of their departure, when the payment of a few hundred dollars was a much cheaper mode of proceeding for the captains than detention even for a few days. but in one of his suits in the united states district court, in the year , brought for a steerage passenger against a vessel from australia, the captain declined to be blackmailed and defended himself. when the matter came on for hearing, hastings was found to have no cause of action, and the case was thereupon dismissed by judge hoffman. hastings then appealed to the united states circuit court, and that court affirmed the judgment of the district court. this happened as i was about leaving for europe; and i left supposing that i had heard the last of the case. during my absence, hastings moved judge hoffman, of the united states district court, from whose decision the appeal had been taken, to vacate the decision of the united states circuit court. this, of course, judge hoffman refused. hastings thereupon made a motion that my decision should be set aside, on the ground that it was rendered by fraud and corruption. when judge hoffman became aware of the charges thus made, he was indignant and immediately cited hastings before him to show cause why he should not be disbarred and punished for contempt. hastings refused to make any explanation or withdraw his offensive language; and thereupon judge hoffman expelled him from the bar and ordered his name to be stricken from the roll of attorneys. i was then absent in europe, and knew nothing whatever of the proceedings. about this time mr. george w. julian, a member of congress from indiana, came to california and pretended to be a great friend of the settlers. he obtained the confidence of that large class of the community, and especially of those who were known as the suscol claimants. these were the men who, upon the rejection by the united states supreme court of the so-called suscol grant, in napa and solano counties, rushed in and squatted upon the most valuable land in the state. the title to this land had previously been considered as good as any in california; it had been held valid by the local tribunals, and also by the board of land commissioners and by the district court of the united states. on the strength of these confirmations the land had been divided into farms, upon which, besides cultivated fields, there were numerous orchards, vineyards, gardens, and two cities, each of which had been the capital of the state. the farms and city lots had been sold, in good faith, to purchasers at full value. but when the question came before the united states supreme court, and it appeared that the grant had been made to general vallejo, in consideration of military services, and for moneys advanced to the mexican government, and not for colonization purposes, it was held that there was no authority under the mexican laws for such a disposition of the public domain, and that the grant was, therefore, invalid. at the same time judge grier filed a dissenting opinion, in which he expressed a hope that congress would not allow those who had purchased in good faith from vallejo, and expended their money in improving the land, to be deprived of it. congress at once acted upon the suggestion thus made and passed an act allowing the grantees of vallejo to purchase the lands occupied by them at a specified sum per acre. mr. john b. frisbie, vallejo's son-in-law, who had bought and sold large quantities, took immediate steps to secure himself and his grantees by purchasing the lands and obtaining patents for them. in the meanwhile the squatters had located themselves all over the property; most of them placing small shanties on the land in the night-time, near the houses, gardens, and vineyards, and on cultivated fields of the vallejo grantees. they then filed claims in the land office as pre-emptioners, under the general land laws of the united states, and insisted that, as their settlements were previous to the act of congress, their rights to the land were secure. in this view julian, when he came to california, encouraged them, and, as was generally reported and believed, in consideration of a portion of the land to be given to him in case of success, undertook to defend their possessions.[ ] when frisbie applied, under the provisions of the act of congress, for a patent to the land, a man named whitney, one of the squatters, protested against its issue, on the ground that under the pre-emption laws he, whitney, having settled upon the land, had acquired a vested right, of which congress could not deprive him. but the land department took a different view of the matter and issued the patent to frisbie. whitney thereupon commenced a suit against frisbie in the supreme court of the district of columbia to have him declared a trustee of the land thus patented, and to compel him, as such trustee, to execute a conveyance to the complainant. the supreme court of the district of columbia decided the case in favor of whitney, and ordered frisbie to execute a conveyance; but on appeal to the supreme court the decision was reversed; and it was held that a pre-emptioner did not acquire any vested right as against the united states by making his settlement, nor until he had complied with all the requirements of the law, including the payment of the purchase-money; and that until then congress could reserve the land from settlement, appropriate it to the uses of the government, or make any other disposition thereof which it pleased. the court, therefore, adjudged that the suscol act was valid, that the purchasers from vallejo had the first right of entry, and that frisbie was accordingly the owner of the land purchased by him. soon after the decision was rendered julian rose in his seat in the house of representatives and denounced it as a second dred scott decision, and applied to the members of the court remarks that were anything but complimentary. it so happened that previous to this decision a similar suit had been decided in favor of frisbie by the supreme court of california, in which a very able and elaborate opinion was rendered by the chief justice. i did not see the opinion until long after it was delivered, and had nothing whatever to do with it; but in some way or other, utterly inexplicable to me, it was rumored that i had been consulted by the chief justice with respect to that case, and that the decision had been made through my instrumentality. with this absurd rumor hastings, after he had been disbarred by judge hoffman, went on to washington. there he joined julian; and after concocting a long series of charges against judge hoffman and myself, he placed them in julian's hands, who took charge of them with alacrity. the two worthies were now to have their vengeance--hastings for his supposed personal grievances and julian for the suscol decision which injured his pocket. these charges on being signed by hastings were presented to congress by julian; and at his request they were referred to the judiciary committee. that committee investigated them, considered the whole affair a farce, and paid no further attention to it. but the next year mr. holman, of indiana, who succeeded julian, the latter having failed of a re-election, re-introduced hastings' memorial at julian's request and had it referred to the judiciary committee, with express instructions to report upon it. hastings appeared for the second time before that committee and presented a long array of denunciatory statements, in which judge hoffman, myself, and others were charged with all sorts of misdemeanors. the committee permitted him to go to any length he pleased, untrammelled by any rules of evidence; and he availed himself of the license to the fullest extent. there was hardly an angry word that had been spoken by a disappointed or malicious litigant against whom we had ever decided, that hastings did not rake up and reproduce; and there was hardly an epithet or a term of villification which he did not in some manner or other manage to lug into his wholesale charges. as a specimen of his incoherent and wild ravings, he charged that "the affairs of the federal courts for the district of california were managed principally in the interests of foreign capitalists and their co-conspirators, and that the judges thereof appeared to be under the control of said foreign capitalists, and that the said courts and the process thereof were being used or abused to deprive the government of the united states and the citizens thereof of the property that legally and equitably belonged to them respectively, and to transfer the same, in violation of law and through a perversion of public justice, to said foreign capitalists and their confederates and co-conspirators, and that nearly the whole of the sovereign powers of the state were under the control and management of said foreign capitalists and their confederates and co-conspirators;" and he alleged that he "was aware of the existence in the united states of a well-organized, oath-bound band of confederated public officials who are in league with the subjects of foreign powers, and who conspire against the peace, prosperity, and best interests of the united states, and who prey upon and plunder the government of the united states and the city and county governments thereof, and also upon private citizens, and who now are carrying into practice gigantic schemes of plunder through fraud, usurpation, and other villainy, in order to enrich themselves, bankrupt the nation, and destroy our government, and that their power is so great that they can and do obstruct the administration of public justice, corrupt its fountains, and paralyze to some extent the sovereign powers of the government of the united states and the people thereof." the judiciary committee after having patiently listened to this rigmarole, absurd and ludicrous as it was, unanimously reported that hastings' memorial should be laid upon the table and the committee discharged from any further consideration of the subject. the house adopted the report, and, so far as congress was concerned, there the matter dropped. but in the meanwhile it had been telegraphed all over the country that articles of impeachment were pending against the judges, and sensational newspaper articles appeared in different parts of the country. some expressed regret that the conduct of the judges had been of a character to necessitate such proceedings. others said it was not to be wondered at that the judicial ermine should be soiled in a country of such loose morals as california. still others thought it no more than proper to impeach a few of the judges, in order to teach the remainder of them a salutary lesson. these articles were paraded in large type and with the most sensational headings. when the action of the house on the memorial was announced, hastings and julian became furious. it then appeared that the only charge which had made any impression upon the minds of the committee was that relating to moulin, the frenchman. three, indeed, of the members, (messrs. voorhees, of indiana, potter, of new york, and peters, of maine,) said it was a shame and disgrace that such ridiculous and monstrous twaddle should be listened to for a moment; but a majority considered it their duty, under the order of reference, to hear the matter patiently. they had, therefore, allowed hastings the widest latitude and listened to everything that his malice could invent. as a comical conclusion to these extraordinary proceedings, hastings commenced a suit in the u.s. circuit court for the state of new york against the judiciary committee for dismissing his memorial. being a non-resident he was required by that court to give security for costs, and as that was not given the action was dismissed. this result was so distasteful to him that he presented a petition to the chief justice of the u.s. supreme court, stating that judge hunt had too much to do with churches, banks, and rings, and asking that some other judge might be appointed to hold the court. the petition was regarded as unique in its character, and caused a great deal of merriment. but the chief justice sent it back, with an answer that he had no jurisdiction of the matter. after this hastings took up his residence in new york, and at different times worried the judges there by suits against them--judge blatchford, among others--generally charging in his peculiar way a conspiracy between them and others to injure him and the rest of mankind. * * * * * the above was written upon my dictation in the summer of . in november of that year hastings again appeared at washington and applied to a senator to move his admission to the supreme court. the senator inquired if he was acquainted with any of the judges, and was informed in reply of that gentleman's proceedings against myself; whereupon the senator declined to make the motion. hastings then presented to the house of representatives a petition to be relieved from his allegiance as a citizen of the united states. as illustrative of the demented character of the man's brain, some portions of the petition are given. after setting forth his admission to the supreme court of california as an attorney and counsellor-at-law, and his taking the oath then required, he proceeded to state that on the th of november, , he entered the chamber of the supreme court of the united states to apply for admission as an attorney and counsellor of that court; that he was introduced by a friend to a senator, with a request that the senator would move his admission; that the senator asked him if he knew a certain justice of the supreme court, and upon being informed that he did, and that his relations with said justice were not friendly, as he had endeavored to get him impeached, and that the damaging evidence he produced against such justice had been secreted and covered up by the judiciary committee of the house, whom he had accordingly sued, the petition continued as follows: "whereupon said senator replied, i have a cause to argue as counsel before this court this morning, and i would, therefore, prefer not to move your admission. said senator then and there arose and took his seat in front of the bench of said court; and your petitioner remained in said u.s. supreme court until one application for admission was made and granted on motion of one s.p. nash, of tweed-sweeney ring settlement fame [thereby demonstrating poetic injustice], and until the chief justice of the united states--shadow not shade of selden--called the first case on the docket for that day, and a moment or two after the argument of said cause commenced, your petitioner arose and left the court-room of said united states supreme court, (to which the genius of a marshall and a story has bid a long farewell,) and as your petitioner journeyed towards his hotel, your petitioner soliloquized thus: 'senator w---- is evidently afraid of justice ----, with whom i have had a difficulty, and he possesses neither the manly independence of a freeman, nor moral nor physical courage, and he is, therefore, an improper person (possibly infamous) for such a high and responsible position, and my rights as a citizen are not safe in the keeping of such a poltroon and conniving attorney, and he is probably disqualified to hold the high and responsible office of senator of the united states--that he improperly accepts fees from clients, possibly in part for the influence which his exalted position as senator gives him as counsel for parties having cases before the u.s. supreme court, and which practice is wholly inconsistent with the faithful, impartial performance of his sworn duty as such senator; and by thus accepting fees he has placed himself in a position where his personal interests conflict with the obligations of his oath of office; while the justices of the supreme court are, i conceive, derelict in the performance of their sworn duty, for permitting such practices to be inaugurated and continued.' "cowardice taints the character with moral turpitude; and i believe the facts related above show that said senator is a coward; at all events he lacks moral courage, and is afraid of the justices of the united states supreme court, whose judge the senator-attorney of the court becomes in case of trial of any of said justices by impeachment; surely this is one unclean body incestuously holding illicit commerce with another unclean body, and both become interchangeably soiled, and too impure to touch the spotless robes of the judicial ermine; still, as this government has ceased to be a government of law and justice, and has become a foul and unclean machine of corrupt compromises, carried on by colluding and conniving shyster bartering attorneys, the practice of said supreme court of the united states, above referred to, is strictly in accord therewith." the petition continued in a similar strain, and wound up by asking the passage of a concurrent resolution of the houses releasing him from his allegiance to the united states! [ ] see exhibit l, in appendix. appendix. exhibit a. [from the new york _evening post_ of november th, .] among the passengers leaving in the crescent city to-day is stephen j. field, esq., of this city, brother and late law-partner of d.d. field, esq., one of the commissioners of the code of practice. mr. field is on his way to san francisco, where he proposes to practise his profession, and take up his future residence. if he should realize either the hopes or the expectations of the numerous friends he leaves behind, he will achieve an early and desirable distinction in the promising land of his adoption. * * * * * exhibit b. mr. william h. parks, of marysville, has always asserted that my election as alcalde was owing to a wager for a dinner made by him with a friend. he was at the time engaged in transporting goods to the mines from the landing at nye's ranch on the yuba river, called yubaville, and arriving at the latter place whilst the election was going on he made the wager that i would be elected, and voted all his teamsters, numbering eleven, for me. as i had a majority of only nine, he claims that he had the honor of giving me my first office. the claim must be allowed, unless the person with whom he wagered offset this number, or at least some of the teamsters, by votes for my opponent. after the election mr. parks introduced himself to me, and from that time to this he has been a warm and steadfast friend. he afterwards settled in sutter county, but now resides in marysville. he has amassed a handsome fortune, and takes an interest in all public affairs. he has represented his county as a senator in the legislature of the state. he is a gentleman of high character and has the confidence and respect of the community. my opponent for the office of alcalde was mr. c.b. dodson, from illinois. i afterwards met him only once or twice in california, and knew little of his history. but when i was a member of the electoral commission, in february of this year ( ), a copy of a paper published in geneva, illinois--the _republican_, of the th of that month--was sent to me, containing the following account of him, from which it appears that he, too, has lived a life of strange vicissitudes and stirring adventure: reminiscences. an account of the various positions of the selected arbitrators says that in judge field was elected alcalde and recorder of marysville, california. judge field's competitor for the position was our townsman, capt. c.b. dodson, who was defeated by nine votes. as there is no doubt that had the captain gained the position of alcalde he would have risen as his competitor did, to various judicial positions, and finally to the arbitrator's seat, these nine votes must be considered as the only reasons why geneva does not number one of her citizens among the arbitrators for the highest of the world's official positions. among the votes polled for our friend dodson on that occasion was that of macaulay, one of the family of the famous historian of england's greatest days and proudest times. the captain has been a natural and inveterate pioneer, and few citizens of the state have figured more prominently or proudly in its early annals. in , forty-three years ago, mr. dodson came to dispute with the aboriginal pottawatomies the possession of the fox river valley. white faces were rare in those days, and scarcely a squatter's cabin rose among the indian lodges. the captain built the first saw-mill on the river, and he and col. lyon were the hardy spirits about whom the early settlers clustered for encouragement and advice. in he was employed by the government to superintend the removal of the indians to council bluffs and kansas, and their successful emigration, as well as their uniform good will toward the whites prior to their removal, were largely due to his sagacity and influence among them. when capt. sutter first found the yellow gold gleaming in the dirt of his mill-race, and all the world joined in a mad rush to the mines, the venturesome spirit of capt. dodson led him to press forward with the first, and he was a "forty-niner," that pride of the old californians. in that surging crowd of wild adventurers from the ends of the earth, the captain was, as he has been among the early pioneers of illinois, a directing and controlling spirit. though he failed in his judicial aspirations for alcalde, and judge field succeeded, yet his continued exertions and marked influence caused him to leave a name richly associated with all the early history of marysville and vicinity. when the war broke out, mr. dodson was among the very first to proffer his services, and he raised the first company of cavalry which went to the front from kane county. the captain is not an old man yet in health and vigor, although an "old settler" in varied and numerous experiences. his name is marked in unmistakable characters on every prominent event of the early settlement of northern illinois, and blended and associated with all the pioneer way-marks of california. a friend and companion of all the great illinoians of the generation which is now passing into old age, he has not yet ceased to be a spirit actively mingling in all the affairs of the present times. but we only started to tell of his contest with field, not to write an eulogium on the captain, for here where he is known it is better pronounced in his record, which lies in the memories of his friends. * * * * * exhibit c. _oath of office as alcalde._ state of california, } sacramento district. } _ss._ sacramento city, _january d, _. personally appeared before me stephen j. field, first alcalde of yubaville, in the district of sacramento, and made oath that he would discharge the duties of the office of first alcalde as aforesaid with faithfulness and fidelity to the best of his ability, and that he would support the constitution of the united states and the constitution of the state of california. r.a. wilson, _judge of st instance, sacramento district._ * * * * * exhibit d. the following are the orders of the district court mentioned in the narrative. _order imprisoning and fining mr. field for alleged contempt of court._ district court, } eighth judicial district, } county of yuba. } at a term of said district court held at marysville, county of yuba, on the th of june, , present, hon. wm. b. turner, judge, the following proceeding was had: _ordered_. that stephen j. field be imprisoned forty-eight hours and fined five hundred dollars for contempt of court. * * * * * _order expelling messrs. field, goodwin, and mulford from the bar._ district court, } eighth judicial district, } county of yuba. } at a term of said court held at marysville, on the th of june, , present, hon. william r. turner, judge, the following proceeding was had: whereas, messrs. field, goodwin, and mulford, having set at defiance the authority of this court, and having vilified the court and denounced its proceedings, the said field, goodwin, and mulford are hereby, by order of the court, expelled from the bar of the same. * * * * * _order imprisoning and fining judge haun for releasing mr. field from imprisonment upon a writ of habeas corpus, and directing that the order to imprison mr. field be enforced._ district court, } eighth judicial district, } county of yuba. } at a term of said district court held at marysville, county of yuba, on the th of june, , present, hon. wm. b. turner, judge, the following proceeding was had: whereas, judge haun having, in defiance of the authority of this court, and in violation of the law, obstructed and prevented the execution of an order of this court to imprison mr. field for a contempt offered to the court while in session, by releasing the said field from the custody of the sheriff; the said haun is hereby sentenced to forty-eight hours' imprisonment and to pay a fine of fifty dollars. the sheriff will enforce the order of the court to imprison mr. field for forty-eight hours. * * * * * exhibit e. _record of proceedings in the court of sessions, mentioned in the narrative._ court of sessions of yuba county. met at marysville, june th, a.d. , at o'clock a.m., and was duly opened by r.b. buchanan, sheriff of the county. present, hon. h.p. haun, county judge, f.w. barnard, associate justice. in the matter of } stephen j. field } application for habeas corpus. on the reading of the petition of the applicant, duly authenticated by his oath, it is ordered that the prayer of the petitioner be granted, and that r.b. buchanan, sheriff of yuba county, or any person acting under him and having said field in custody, bring the said field into court forthwith, to be dealt with according to law. in pursuance of the above order, the said field came into court, and proceeded to address the court on the matter touching the cause of his confinement, and while making his remarks, and previous to the close thereof, and while the court was in session, r.b. buchanan, sheriff of yuba county, at the head of fifty men, entered the court, and stated that he came there for the purpose and with the intent to seize h.p. haun, county judge as aforesaid, and place him in close confinement, under and by virtue of a certain order or decree made by one william r. turner, judge of the eighth judicial district of the state of california. the court informed the said sheriff buchanan that it was holding its regular term, and that order must be preserved while it was in session. the said sheriff buchanan then left the court, whereupon the business before the court was again resumed. at the expiration of some five minutes, the said r.b. buchanan, as aforesaid, re-entered the court, and stated that the said h.p. haun, county judge as aforesaid, must leave the court and go with him, as he was peremptorily ordered by william r. turner, the judge as aforesaid, to arrest the said h.p. haun and keep him in close confinement for the space of forty-eight hours. r.b. buchanan was here notified that he was violating the laws of the land, and that he would be fined if he persisted in disturbing the session of the court. the reply of said buchanan was "that he could not be trifled with," and immediately seized the said h.p. haun, county judge as aforesaid, by the arm, and attempted to drag him from the room where the court was in session. whereupon a fine of two hundred dollars was then and there imposed upon the said r.b. buchanan for a contempt of court. the said r.b. buchanan then and there called upon the fifty persons ordered out by him as his posse to take hold of the said h.p. haun, and take him from the court. but the persons in attendance, conceiving the order to arrest the hon. h.p. haun to be illegal and unjustifiable, refused to assist the sheriff in the execution of his illegal order. the sheriff then retired, and the court was then adjourned to o'clock p.m. court met pursuant to adjournment. court adjourned to to-morrow morning at o'clock. i hereby certify the above to be a true transcript of the record of the proceedings of the court of sessions on the th day of june, a.d. . witness e.d. wheeler, clerk of the court of sessions of yuba county, california, with the seal of the court affixed, this th day of december, a.d. . [l.s.] e.d. wheeler, _clerk_. * * * * * the records of the district court show the following entry made the same day, june , : "a communication was received from h.p. haun, stating 'that if he was guilty of obstructing the order of the court in releasing field, he did it ignorantly, not intending any contempt by so doing.' whereupon the court ordered that h.p. haun be released from confinement, and his fine be remitted." the following is taken from the deposition of mr. wheeler, the clerk of the court, before the committee of the assembly to whom was referred the petition of citizens of yuba county for the impeachment of judge turner: march th, . e.d. wheeler,[ ] being duly sworn, says: i reside in marysville, yuba county; i am the county clerk of that county; i know wm. r. turner, judge of the eighth judicial district; i am clerk of his court in and for yuba county. question. were you in court on the th day of june last, when stephen j. field was fined by judge turner and ordered to be imprisoned? if so, please to state what took place at that time in court. ans. i was in court on the th day of june last. a motion was made in a suit (cameron against sutter) in which stephen j. field was counsel for the defendant, upon which motion a discussion arose among the members of the bar employed in the case. during the remarks of mr. field, judge turner said that it was useless to say more, as the mind of the court was made up. i think mr. field then offered to read from the statutes, whereupon judge turner ordered him to take his seat, and that a fine of two hundred dollars be entered up against him, and that he be imprisoned eight hours or thereabout. mr. field replied, "very well." then judge turner said, fine him three hundred dollars and imprison him--i do not remember the precise time--but think it was twenty-four hours. mr. field made some quiet reply--i think it was "very well;" whereupon the fine was increased to four hundred dollars and the imprisonment made something longer. i think mr. field said something about his rights at the bar, and i think he appealed to the members of the bar. then judge turner became quite furious, and in loud and boisterous language ordered the fine to be five hundred dollars and the imprisonment to be forty-eight hours, and ordered the sheriff to take him out of court. he was boisterous, and several times ordered the sheriff to take him out; to summon a posse; to summon the court, and he would turn him out. q. did you see anything disrespectful in the manner, or hear anything disrespectful in the language of mr. field which occasioned the fine and imprisonment? ans. i did not. q. did mr. field, in consequence of the order of judge turner, leave the court-room in company with the deputy sheriff? ans. he left in company with the deputy sheriff, and i suppose it was in consequence of the order of judge turner. q. was the trial of cameron against sutter proceeded with after mr. field left? ans. it was. q. who took the place of mr. field after he left? ans. john v. berry, esq. q. were you in court on the th day of june? ans. i was. q. were any members of the bar expelled by judge turner on that day? and if so, please state who they were and whether they were in court at the time, and whether or not the order was made upon a hearing of the parties. ans. there were three persons expelled, to wit: s.j. field, s.b. mulford, and j.o. goodwin. i do not recollect whether the parties were all in court at the time. i am sure that mr. goodwin was in court. there was no hearing had to my knowledge. q. after the order imprisoning mr. field, on the th of june and before the th, were any steps taken by mr. field to be discharged on a writ of habeas corpus? ans. there were, and mr. field was discharged by the judge of the county of yuba. q. what was done by judge turner with judge haun, the county judge, in consequence of his discharging mr. field from imprisonment on the writ of habeas corpus? ans. judge haun was fined fifty dollars by judge turner and ordered to be imprisoned forty-eight hours. this was on the th of june, at the same time that the other gentlemen were expelled from the bar. q. did the court of sessions of yuba county hold a session on that day? ans. yes. q. did you continue in the district court or did you go to the court of sessions? ans. i continued in the district court. q. who made up the records of the court of sessions on that day? ans. f.w. barnard, one of the associate justices of the court. q. look at this paper and state whether it is a copy of the proceedings of that court on the th of june, certified by you as the clerk. ans. it is.[ ] q. whilst you were in the district court on that day did the sheriff of yuba county give any information to the district court about the court of sessions being in session? ans. he did. q. did judge turner give any directions to the sheriff to arrest judge haun, notwithstanding he was holding his court? ans. he did, and told the sheriff to put him in irons, if necessary to handcuff him. q. were any directions given about a posse? ans. there were. he told the sheriff to summon a posse forthwith and enforce the orders of the court. he addressed two or three professional gamblers present and asked them if they would not join the posse to arrest judge haun. then the excitement became so great that several of the members of the bar requested him to adjourn the court; but before the court adjourned the judge asked several of the members of the bar to join the posse; but they made excuses, whereupon the court adjourned. q. was the order entered on the records of the district court, expelling messrs. field, goodwin, and mulford? ans. it was. q. what day was that order entered? ans. on the th day of june. q. has that order ever been vacated on the records of the district court? ans. so far as it relates to mr. goodwin it has been vacated, but no further. q. has mr. field or mr. mulford ever been restored to the bar by the district court since the order of expulsion on the th of june? ans. no. [ ] mr. wheeler is at present ( ) district judge of the nineteenth district of the state. [ ] the record of the proceedings is printed above. * * * * * exhibit f. the following is the petition to the governor mentioned in the narrative. of course the governor possessed no power to suspend a judicial officer from office. but at the time the petition was signed and sent to him the state had not been admitted into the union, and congress had not approved of the action of the people in calling a convention and framing a constitution; and it appeared very doubtful whether such approval would be given. there was a general impression that in the meantime the governor could exercise the power to remove and suspend officers of the state which the former governors under mexico possessed, or were supposed to possess. the petition, however, is none the less significant, as the expression of the opinions of the people of marysville upon the conduct of judge turner. _to his excellency peter h. burnett, governor of california._ the undersigned citizens of marysville, yuba county, in this state, respectfully request that your excellency would suspend william r. turner, district judge of the eighth judicial district of this state, from his judicial office. st. because the said william r. turner is grossly incompetent to discharge the duties of a judge, he having exhibited during his judicial career, and particularly during the session of the district court held at marysville, in yuba county, during the present month, ignorance of the most elementary principles of law,--such as to excite the derision of counsel, jurors, witnesses, and persons in attendance upon the court. d. because the said william r. turner has, during the session of the district court held at marysville, exercised the power vested in him as judge, in an arbitrary and tyrannical manner, outraging the rights of counsel, clients, and witnesses. d. because the said william r. turner has refused to hear counsel on questions of vital importance to the suits of their clients, and in one instance fined and imprisoned counsel for stating in the most respectful manner and in the most respectful language, that he appealed from an order made by him, though such is an acknowledged right of all counsel, and a right given by statute--under pretence that counsel by so doing was guilty of a contempt. th. because the said wm. r. turner has trampled upon and spurned with contempt the privilege of the writ of habeas corpus which is guaranteed to all citizens by the constitution of the united states and by the constitution of the state of california, and fined and imprisoned the hon. henry p. haun, judge of yuba county, for the exercise by him of a judicial act in discharging a gentleman from arrest under a writ of habeas corpus. th. because the said william r. turner, to carry out his arbitrary order to fine and imprison the hon. henry p. haun, judge of yuba county, for the exercise of a judicial act, ordered the sheriff of said county with a posse to invade the court of sessions of yuba county while the said court was sitting, and over which the said haun presided, and to carry off by force the said county judge and put him in close custody. th. because the said william r. turner ordered the sheriff of yuba county, with a posse, to force mr. s.j. field from the court of sessions of said county whilst said field was before said court on a writ of habeas corpus arguing for his discharge, and the said william r. turner was informed that the court of sessions forbid the sheriff from disturbing the proceedings of the court on the hearing of said writ. th. because the said william r. turner has, in the exercise of arbitrary power, expelled counsel from the bar for giving their testimony as witnesses on the return of a writ of habeas corpus before the hon. henry p. haun, judge of the county court, under pretence that by so doing they were vilifying the court and denouncing its proceedings. th. because the said william r. turner, during the session of the district court at marysville, yuba county, in the present month, frequently went into court with revolving pistols upon his person, to the great scandal of the court and of the county. for the above, and other reasons, your petitioners respectfully request that the said william r. turner may be suspended from his office, as the further exercise by him of judicial power will destroy all confidence of the community in the administration of justice, and all respect for the tribunals of the country; and your petitioners will ever pray. marysville, june th, . stephen j. field, ira a. eaton, james s. green, t.b. parker, e.w. judkins, harrington osgood, chas. w. gleason, geo. w. hastat, s. sartwell, jr., m.s. ebright, s.c. stambaugh, p. steinman, henry cuttcher, m. cunningham, ed. b. jefferds, wm. h. mitchell, benj. barker, h. cecil & co., osbourn & co., asa stearns, john bennett, jr., j.p.f. haskell, w.a. crampton, j.c. jewett, h. stenhome, john parks, absalom parks, david parks, james imbrie, alfred parry, h.c. ward, richard mcrae, wm. johnson, f. prunean, h.w. taylor, r.a. eddy, s.t. brewster, c. sala, dericerpre, m. donaldson kinney, r.m. foltz., jas. f. hibbard, thomas gaffney, allen gries, w.h. swain, oben lacey, e.s. peck, b. smith, john graham, wm. kyle, s.c. tompkins, a.c. ladd, c.b. kinnard, cyrus crouch, h.h. welch, jas. stuart, jas. debell, uriah davis, l.h. babb & co., i.b. purdy, g. dimon, henry j. williams, d.w.c. rice, n. purdy, william k. coit, james b. cushing, thomas west, s.b. mulford, j. ford, wm. ford, charles a. van dorn, gustavus b. wright, j. burlingame, g. beaulamy, a. mace, f. frossard, c.w. durkee, john s. ryder, geo. h. childs, ezra f. nye, s.t. nye, geo. w. durkee, john c. marks, john l. carpenter, leonard crofford, robert lacy, french paige, l.a. allen, james hughes, j.c. sargent, wm. p. hoyt, f.l. reed, j.s. bell, henry b. compton, g.f. kussel, reuben scott, warren drury, joel f. whitney, o.c. gardner, b.f. taber, johnson thompson, jr., ganahl & co., t.w. hall, j. donnel, wm. irwin, wm. w. nelson, r.h. mccall, b.g. bixby, geo. l. boswell, wm. w. tinker, robert s. baker, n.f. cooke, edwards woodruff, j.n. briceland, joseph f. emeric, john f. delong, james q. packard, sibley & co., boone, larrow & co., p.w. hayes & co., geo. c. gorham, r. dunlap, m. cameron, r. brown, a.w. loynes, f. owradon, j.w. turner, p.d. bailey, james l. springer, matthew s. smith, wm. fulton, john george smith, isaiah porter, wm. r. taylor, john mcclellan, r.h. macy, charles b. mitchell, thomas r. anthony, geo. w. webster, daniel m. shepherd, m.j. eavyerberth, lewis a. gosey, john rueyer, tehan van de wett, wm. cassede, g.p. russell, s.g. haywood, g.w. hopkins, wm. e. wightman, e. ferris, samuel r. st. john, a.o. garrett, d.c. benham. * * * * * exhibit g. _letter of mr. eaton, by whom the message mentioned in the narrative was sent to judge turner._ wednesday afternoon, _aug. , ' _. dear judge: i have given your message to turner. he does not like it much and flared up considerably when i told him. but it was no use. i have made him understand that you do not want any personal difficulty with him, but that you are ready for him, and if he attacks you he will get badly hurt. i will see you soon and explain. give him ----. you can always count on me. yours truly, ira a. eaton. the narrative of reminiscences was sent to a friend in san francisco, soon after it was printed, and was shown to gen. a.m. winn of that city. he was in marysville in and also gave judge turner to understand the line of conduct i intended to pursue. the following letter has since been received from him. san francisco, _may th ' _. friend field: in looking over the early reminiscences of california i was pleased with the faithful recital of your trouble with judge turner at marysville in . being there about that time i recollect to have met with judge turner and found him in a fighting rage, making threats of what he would do on meeting you. although i have not an exalted opinion of men's courage, when they talk so much about it, i thought he might put his threats into execution and warned you of approaching danger. the course you pursued was generally approved, and public opinion culminated in your favor. you made many warm friends, though turner and his friends were the more enraged in consequence of that fact. with great respect, i am, as ever, your friend, a.m. winn. hon. stephen j. field, _washington, d.c._ * * * * * exhibit h, no. i.[ ] after the narrative of reminiscences was written, the proceedings of the assembly of california of , on the petition of citizens of yuba and nevada counties for the impeachment of judge turner, were published. annexed to them was a statement by the editor of the causes of the indefinite postponement of the matter. they are there stated to be: st, that it was supposed that i had acquiesced in such a disposition of the case, because by the act concerning the courts of justice and judicial officers, turner had been sent to the northern portion of the state, where he could do no harm; d, that the legislature did not wish to extend the session for the period which the trial of an impeachment would require; and, d, that the whole matter had become extremely distasteful to me. a copy of this statement with the record of the proceedings was sent to the surviving members of the seven, mentioned in the narrative, who voted for the indefinite postponement of the matter; and they wrote the replies which are given below as part of this exhibit. they are preceded by a letter from a member, written soon after the vote was taken. * * * * * _letter of mr. bennett._ house of assembly, san jose, _april d, _. hon. stephen j. field. dr. sir: i take pleasure in adopting this form to explain to you my vote upon the question put to the house in the final disposition of the case for the impeachment of judge turner. had the house been called for a direct vote upon the question of impeachment, i should certainly have voted for the impeachment; but finding that some of the members thought the wishes of the citizens of yuba county had been accomplished by the removal of judge turner from your district, and on that account would vote against the impeachment, i thought there was less injustice in postponing the whole matter indefinitely, than in coming to a direct vote. i will also say that it was understood by many members that you would be satisfied with such a disposition. i am very truly your friend, f.c. bennett. to the hon. stephen j. field, _san jose_. * * * * * _letter of mr. merritt._ salt lake city, utah, _may th, _. my dear judge: your letter of the th of april reached me day before yesterday, and the copy of the proceedings in the matter of the impeachment of w.r. turner, on yesterday. the editorial comments on the case, so far as i am concerned, are exactly correct. i remember distinctly having voted for the indefinite postponement of the charges against turner on the distinct understanding that you consented to it, or at least acquiesced, for the reasons: st, that turner, by the passage of the bill concerning courts of justice, etc., had been sent to a district where he could do no harm and was out of the way; d, that you did not desire to extend the session of the legislature; and, d, that the whole matter was extremely distasteful and disagreeable to you. i remember further very distinctly, even after this great lapse of time, that i was very much astonished when you told me that i had voted under a misapprehension as to your views and wishes. it is very certain that turner would have been impeached had not a false report, as to your views and wishes on the subject, been industriously circulated among the members of the assembly a short time before the vote was taken. that report alone saved turner from impeachment. very truly your friend, saml. a. merritt. hon. s.j. field, _sup. ct. u.s._ * * * * * _letter of mr. mccorkle._ washington, city, d.c., _may th, _. hon. s.j. field. my dear sir: i have received your note and the printed record of the "proceedings of the assembly of the state of california of , on the petition of the citizens of yuba and nevada counties for the impeachment of wm. r. turner, judge of the eighth judicial district of california." the simple reading of the record recalls vividly to my mind all of the circumstances of the case and enables me to answer your inquiry in regard to the indefinite postponement of the motion to impeach judge turner. a bill introduced by yourself, increasing and changing the numbers of the judicial districts of the state, had passed the legislature, and became a law some weeks before the motion to impeach judge turner was called up. by this law judge turner was banished to the klamath--a region inhabited almost exclusively by savage red-skins, the elk, and grizzly bear, and as turner was supposed by anthropologists to be a resultant of that mysterious law of generation denominated atavism or reversionary heredity, and bore the impression, in not only the bodily form, but the instincts, passions, manners, and habits of the "cave-dwellers" of the rough-stone age, there appeared to be a fitness and adaptation in the new locality and its surroundings to the man, which was at once appreciated and approved by all persons familiar with him, and his conduct and behavior, both on and off the bench. under these circumstances the report obtained general credence, that you and your constituents were satisfied with the removal of judge turner from the bench of the eighth judicial district; and i have no doubt influenced all or nearly all who voted to indefinitely postpone his impeachment. as for myself, having a personal knowledge of the truth of the charges made against judge turner by the citizens of yuba and nevada counties, i am free to say that no consideration other than that you and your constituents were satisfied with judge turner's removal from the eighth judicial district, could have induced me to cast my vote for the indefinite postponement of judge turner's impeachment. do you realize the fact, my dear judge, that more than a quarter of a century has elapsed since these events transpired? though my respect for you as a man, and my admiration for you as a jurist, have increased since we were actors in these scenes; yet i am frank enough to say to you, that if i had to play my part again, with my increased experience, i would not vote to indefinitely postpone the impeachment of a judge whom i knew to be guilty of the charges made against judge turner by yourself and others, _even though the report were true_ that you and your constituents were satisfied with his simple removal from your judicial district. respectfully and truly yours, &c., jos. w. mccorkle. * * * * * _letter of mr. bradford._ springfield, ill, _may th, _. judge field. my dear friend: yours of the th april should have been answered ere this, but before doing so i desired to get all the reminders that i could. i looked carefully over the journal. all that i had recollected in the whole matter was that i had an intense feeling in favor of sustaining your position, and when you informed me that i had voted to dismiss the proceedings i was profoundly astonished. i thought you must be mistaken until i saw the journal.... some very satisfactory assurance must have been given me that such vote would be satisfactory to you, and i only wonder that i did not have the assurance verified.... i assume that the editor is correct in the explanation as given. very truly, j.s. braford. * * * * * _letter of mr. carr._ san francisco, _may th, _. my dear judge: i have received your letter and a printed copy of the record of the proceedings of the assembly of california of , in the matter of the impeachment of william r. turner, judge of the then eighth judicial district of the state. in reply, i have to say, that the statement of the editor as to the vote on the motion to indefinitely postpone the proceedings is correct, so far as i am concerned. it was distinctly understood by me, and to my knowledge by other members of the assembly, that you had consented to such postponement, it being explained that the postponement was not to be taken as an approval of the judge's conduct. on no other ground could the motion have been carried. if the vote had been taken on the charges made, articles of impeachment against the judge would undoubtedly have been ordered. your consent to the postponement was understood to have been given, because of the change in the judicial districts by an act introduced into the assembly by yourself, under which judge turner was sent to a district in the northern part of the state, where there was at the time scarcely any legal business, and which was removed to a great distance from the district in which you resided, and because of the general desire manifested by others to bring the session of the legislature to a speedy close. the impeachment of the judge would have necessitated a great prolongation of the session. no member of the assembly justified or excused the atrocious and tyrannical conduct of the judge towards yourself and others. i am, very truly, yours, jesse d. carr. hon. stephen j. field. [ ] by mistake, there are two exhibits h; they are, therefore, marked no. i. and no. ii. * * * * * exhibit h, no. ii. _letter of judge gordon n. mott giving the particulars of the difficulty with judge barbour._ san francisco, _apr. th, _. hon. stephen j. field. dear sir: your letter of the eleventh instant, in which you requested me to give you, in writing, an account of the affair between yourself and judge w.t. barbour, at marysville in , was duly received. the facts in relation to that unpleasant affair are as fresh in my memory as if they had happened yesterday; and i give them to you the more willingly for the reason that you incurred the spite and malice of judge barbour, by acts of personal and professional kindness to me, which gave him no just or reasonable cause of offence; and though the following statement of facts will place the character of judge barbour, now deceased, in a very bad and even ludicrous light, the events in mind are nevertheless a part of the history of our early days in california, and i see no impropriety in complying with your request. the facts are as follows: you and i were walking together along d street in the city of marysville, when we met judge barbour, who, after using some offensive and insolent remarks, gave you a verbal challenge to meet him in the way resorted to by gentlemen for the settlement of their personal difficulties. you accepted the challenge instantly, and referred him to me, as your friend, who would act for you in settling the preliminaries of a hostile meeting. in half an hour i was called upon by hon. chas. s. fairfax as the friend of judge barbour. he said judge barbour had told him that judge field had challenged him to mortal combat, and requested him to meet me for the purpose of arranging the terms of the meeting between them. i told mr. fairfax at once that such was not my understanding of the matter; that i was present when the challenge was given by judge barbour and accepted by judge field. after further consultation with you we agreed that it was better for you to accept the false position in which judge barbour seemed determined to place you, and "to fight it out on that line," than longer submit to the insolence and persecution of a bitter and unscrupulous adversary. mr. fairfax then claimed, in behalf of judge barbour, that, as he was the party challenged, he had the right to the choice of weapons, and the time, place, and manner of the combat; to which i assented. he then stated that judge barbour proposed that the meeting should take place that evening in a room twenty feet square; that each party was to be armed with a colt's navy revolver and a _bowie-knife_; that they should be stationed at opposite sides of the room, and should fire at the word, and advance at pleasure, and finish the conflict with the knives. i told mr. fairfax that the terms proposed by his principal were unusual and inconsistent with the "code," and that i could not consent to them or countenance a conflict so unprecedented and barbarous. mr. fairfax agreed with me that judge barbour had no right to insist upon the terms proposed, and said that he would consult with him and get him to modify his proposition. upon doing so he soon returned, and stated that judge barbour insisted upon the terms he had proposed as his ultimatum, and requested me to go with him and call on judge barbour, which i did. i had now come to the conclusion that barbour was playing the role of the bravo and bully, and that he did not intend to fight, and resolved on the course that i would pursue with him. mr. fairfax and myself then called on judge barbour, and i repeated what i had said to mr. fairfax, adding that it would be shameful for two gentlemen, occupying such positions as they in society, to fall upon each other with knives like butchers or savages, and requesting him to dispense with the knives, which he still refused to do. i then looked him straight in the eye and said, well, sir, if you insist upon those terms, we shall accept. i saw his countenance change instantly. "his coward lips did from their color fly;" and he finally stammered out that he would "waive the knife." without consulting you, i had determined that if barbour still insisted upon a conflict with bowie-knives i would take your place, believing that he would not have any advantage over me in any fight he could make; and knowing, moreover, that you had involved yourself in the difficulty on my account, i thought it only just for me to do so. but it was demonstrated in the sequel that barbour was playing the game of bluff, and that he did not intend to fight from the start. it was finally settled, however, that the combat should take place as first proposed, except that pistols only were to be used. mr. fairfax and myself then commenced looking about for a room; but in the meantime the affair had been noised about town and we found it impossible to get one. mr. fairfax then, after consulting judge barbour, proposed that the meeting should take place the next morning in sutter county; to which i assented; and all the terms and preliminaries were arranged and agreed upon. at that time there were two daily lines of stages leaving marysville for sacramento, and you and your friends were to go down the sacramento road to a point below bear river in advance of the stages, and i was to select a suitable place for the meeting. judge barbour and his friends were to follow us in one of the coaches and i was to hail the driver as he approached the place of meeting. you and your adversary were to be stationed one hundred yards apart, each armed with as many colt's revolvers as he chose to carry; to fire upon each other at the word, and to advance at pleasure and finish the conflict. our party was promptly on the ground according to agreement; and when the first coach came in sight i hailed the driver and found that judge barbour and his friends were not aboard, and the coach passed on a little below us and turned out of the road and stopped. soon after the other coach came in sight, and i again hailed the driver, who stopped the coach, and judge barbour instantly jumped out, and in a very excited manner said that he was going forward to the other coach, and called on the passengers "to take notice, that if that d----d rascal" (pointing to you) "attacked him he would kill him." i stepped in front of judge barbour and said: hold! judge field will not attack you, sir; remarking at the same time to mr. fairfax that this was strange conduct on the part of his friend, and not in accordance with our understanding and agreement; that each party was to bear his portion of the responsibility of the meeting which was to take place between them. mr. fairfax appeared both astonished and mortified at the pusillanimous conduct of his principal, who seemed determined to rush forward to the other coach; and i requested him to wait until i could go back and consult you in the matter, for i was afraid that you might possibly be provoked to make the attack. when i returned to you and explained what had been said at the coach, you asked if it would be proper for you to make the attack. i told you most decidedly not; to let the coward go, and he would never annoy or trouble you again. mr. fairfax, who possessed a nice sense of honor, and was a gallant and accomplished gentleman, was so disgusted and mortified at the conduct of his principal that he left him and came over and joined our party, and after taking breakfast with us at nicolaus, returned with us to marysville, while judge barbour went on his way to sacramento. thus, what threatened in its inception to be a sanguinary tragedy, ended in a ridiculous farce. the determined and resolute stand which you assumed in this affair with judge barbour, saved you from any farther insolence or persecution from men of his class. this letter has been drawn out to a most tedious length, and yet there are many circumstances connected with our early life and times in marysville that i would add but for fear of trying your patience. please write to me on receipt of this, and tell me how my memory of the facts contained in this letter agrees with yours. very respectfully and truly your friend, gordon n. mott. * * * * * exhibit i. _letter of l. martin, esq., the friend of judge barbour in his street attack._ marysville, _tuesday, march , ' _. dear judge: i was glad to hear a few days ago from our friend filkins that the trouble between you and judge barbour had been settled, and that the hatchet was buried. i wish now to explain my connection with the assault made upon you about a year ago by barbour.[ ] you have always appeared to think me in some way implicated in that affair, because i was seen by you at that time not far off from him. the facts are these: judge barbour told me the night before that he expected to have a street fight with you, and wanted me to accompany him. i had heard of his conduct in the affair of the intended duel in sutter county, and knew there was bad blood between you, but i was astonished at his saying there was going to be a difficulty between you in the street. i consented to accompany him, but i supposed of course that you had received notice of his purpose, and that there would be no unfair advantage taken by him. i was, therefore, surprised when i saw you in front of your office with your arms partly filled with small pieces of board, apparently to kindle a fire. barbour's drawing a pistol upon you under these circumstances, and calling upon you to draw and defend yourself, was not what we call at the south very chivalric. it was not justified by me then, and never has been in any way or manner, and i told him he had acted badly. i was glad to hear you defy him as you did, and dare him to shoot. i reckon he is not very proud of his conduct. i have never approved of his action, and should never have accompanied him had i believed or suspected he had not given you notice of his purpose. with great respect i am very truly yours, l. martin. hon. judge field. [ ] it was february , . * * * * * exhibit j. _sections four, five, and seven of the act entitled "an act to expedite the settlement of titles to lands in the state of california," approved july st, ._ sec. . _and be it further enacted_, that whenever the district judge of any one of the district courts of the united states for california is interested in any land, the claim to which, under the said act of march third, eighteen hundred and fifty-one, is pending before him on appeal from the board of commissioners created by said act, the said district court shall order the case to be transferred to the circuit court of the united states for california, which court shall thereupon take jurisdiction and determine the same. the said district courts may also order a transfer to the said circuit court of any other cases arising under said act, pending before them, affecting the title to lands within the corporate limits of any city or town, and in such cases both the district and circuit judges may sit. sec. . _and be it further enacted_, that all the right and title of the united states to the lands within the corporate limits of the city of san francisco, as defined in the act incorporating said city, passed by the legislature of the state of california, on the fifteenth of april, one thousand eight hundred and fifty-one, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinance of said city, ratified by an act of the legislature of the said state, approved on the eleventh of march, eighteen hundred and fifty-eight, entitled "an act concerning the city of san francisco, and to ratify and confirm certain ordinances of the common council of said city," there being excepted from this relinquishment and grant all sites or other parcels of lands which have been, or now are, occupied by the united states for military, naval, or other public uses, [or such other sites or parcels as may hereafter be designated by the president of the united states, within one year after the rendition to the general land-office, by the surveyor-general, of an approved plat of the exterior limits of san francisco, as recognized in this section, in connection with the lines of the public surveys: _and provided_, that the relinquishment and grant by this act shall in no manner interfere with or prejudice any bona fide claims of others, whether asserted adversely under rights derived from spain, mexico, or the laws of the united states, nor preclude a judicial examination and adjustment thereof.] sec. . _and be it further enacted_, that it shall be the duty of the surveyor-general of california, in making surveys of the private land claims finally confirmed, to follow the decree of confirmation as closely as practicable whenever such decree designates the specific boundaries of the claim. but when such decree designates only the out-boundaries within which the quantity confirmed is to be taken, the location of such quantity shall be made, as near as practicable, in one tract and in a compact form. and if the character of the land, or intervening grants, be such as to render the location impracticable in one tract, then each separate location shall be made, as near as practicable, in a compact form. and it shall be the duty of the commissioner of the general land-office to require a substantial compliance with the directions of this section before approving any survey and plat forwarded to him.--[ stats. at large, pp. - .] that part of the fifth section, which is included within brackets, was inserted at the suggestion of the commissioner of the general land-office. * * * * * _the act entitled "an act to quiet the title to certain lands within the corporate limits of the city of san francisco," approved march th, ._ _be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that all the right and title of the united states to the land situated within the corporate limits of the city of san francisco, in the state of california, confirmed to the city of san francisco by the decree of the circuit court of the united states for the northern district of california, entered on the eighteenth day of may, one thousand eight hundred and sixty-five, be, and the same are hereby, relinquished and granted to the said city of san francisco and its successors, and the claim of the said city to said land is hereby confirmed, subject, however, to the reservations and exceptions designated in said decree, and upon the following trusts, namely, that all the said land, not heretofore granted to said city, shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon such terms and conditions as the legislature of the state of california may prescribe, except such parcels thereof as may be reserved and set apart by ordinance of said city for public uses: _provided, however_, that the relinquishment and grant by this act shall not interfere with or prejudice any valid adverse right or claim, if such exist, to said land or any part thereof, whether derived from spain, mexico, or the united states, or preclude a judicial examination and adjustment thereof.--[ stat. at large, p. .] * * * * * exhibit k. _letter of judge lake giving an account of the torpedo._ san francisco, _april , ' _. honorable stephen j. field. my dear sir: in the winter of i was in washington attending the united states supreme court, and was frequently a visitor at your room. one morning in january of that year i accompanied you to your room, expecting to find letters from san francisco, as i had directed that my letters should be forwarded to your care. i found your mail lying on the table. among other matter addressed to you was a small package, about four inches square, wrapped in white paper, and bearing the stamp of the pioneer photographic gallery of san francisco. two printed slips were pasted upon the face of the package and formed the address: your name, evidently cut from the title-page of the "california law reports;" and "washington, d.c.," taken from a newspaper. you supposed it to be a photograph, and said as much to me, though from the first you professed surprise at the receipt of it. you were standing at the window, when you began to open it, and had some difficulty in making the cover yield. when you had removed the cover you raised the lid slightly, but in a moment said to me, "what is this, lake? it can hardly be a photograph." a sudden suspicion flashed upon me, and stepping to your side, i exclaimed, "don't open it; it means mischief!" when i had looked at it more nearly, i said, "it's an infernal machine" or "a torpedo." i carried it over to the capitol, opposite to your rooms, where mr. broom, one of the clerks of the supreme court, joined me in the examination of your mysterious looking present. it was put in water, and afterwards we dashed off the lid of the box by throwing it against the wall in the carriage way under the senate steps. about a dozen copper cartridges were disclosed--those used in a smith & wesson pocket pistol, it appeared afterward--six of them lying on each side of a bunch of friction matches in the centre. the sides of the cartridges had been filed through, so that the burning of the matches might explode the cartridges. the whole was kept in place in a bed of common glue, and a strip of sand-paper lying upon the heads of the matches was bent into a loop to receive the bit of thread, whose other end, secured to the clasp of the box, produced that tension and consequent pressure requisite to ignite the matches upon the forcible opening of the lid. to make assurance doubly sure, a paste of fulminating powder and alcohol had been spread around the matches and cartridges. there was a newspaper slip also glued to the inside of the lid, with words as follows: "monday, oct. , . the city of san francisco vs. united states. judge field yesterday delivered the following opinion in the above case. it will be read with great interest by the people of this city." then followed several lines of the opinion. even that gave no clue to the source of the infernal machine, but from the fact that it was evidently made by a scientific man, and that from its size it must have been passed through the window at the post office, instead of into the letter-box, it was thought [that there was] a sufficiently conspicuous mode of action to expose the sender of the torpedo to detection. whoever it may have been took a late vengeance for the decision of the pueblo case--if such was the veritable motive of the frustrated assassination--as the decision referred to was rendered in . on that account it was conjectured that the contriver of the machine might be some guilty person, who had received sentence from you, and who used the reference to the pueblo case to divert suspicion from himself. so far as i know, all efforts to discover the author of the intended mischief have been fruitless. the box with its contents, was sent to the secretary of war, who directed an examination by the ordnance department. general dyer, then chief of ordnance, pronounced it a most cleverly combined torpedo, and exploded one of the cartridges in a closed box, producing a deep indentation upon its sides. general dyer added, among other analytical details, that the ball weighed grains. all the circumstances connected with the reception of the infernal machine were too singular and, at that time, ominous, not to remain vividly impressed upon my memory. very truly, your friend, delos lake. * * * * * exhibit l. _the following is an extract from the report to the commissioner of the general land-office by the register and receiver of the land-office in california, to whom the matter of the contests for lands on the soscol ranch was submitted for investigation, showing the condition and occupation of the lands previous to the rejection of the grant by the supreme court of the united states, and the character of the alleged pre-emption settlements which julian undertook to defend._ a general report of the facts established by said evidence is briefly as follows:[ ] when the united states government took possession of california, don mariana guadaloupe vallejo was in the occupancy of the rancho of soscol, claiming to own it by virtue of the grant from the mexican nation, which has recently (december term, ) been declared invalid by the supreme court of the united states. his occupancy was the usual one of the country and in accordance with the primitive habits of the people. he possessed the land by herding stock upon it. general vallejo, as military commandante of his district, consisting of all alta california lying north of the bay of san francisco, was necessarily the leading personage of the country. his influence among the rude inhabitants of the territory was almost monarchical, and his establishment was in accordance with his influence. his residence at sonoma was the capital of his commandancy, and the people of the country for hundreds of miles around looked to general vallejo for advice and assistance in business and for protection and defence in time of trouble. these things are part of the history of california. he had other ranches besides that of soscol, as that at sonoma, which was devoted to agriculture and residences. the soscol he especially devoted to the herding and grazing of stock, for which purpose it was most admirably adapted. wild oats grew in great luxuriance all over this tract, from the water's edge to the tops of the highest hills, and being surrounded on three sides by the waters of the bays and rivers, required little attention in the way of herdsmen. on this rancho general vallejo kept as many as fifteen thousand head of horses and horned cattle running at will, attended only by the necessary vaqueros employed to watch and attend them. there was no other use to which the land could at that time be devoted. the want of reliable labor and lack of a market both forbade agricultural operations beyond personal or family necessities. it was not practicable then, nor for years after, to put the land to any use other than stock pasturing. we have, therefore, to report that the possession that general vallejo had of "soscol" in was the usual use and possession of the time and the country, and that it was the best and most perfect use and occupation of which the land was capable. the rancho was, therefore, reduced to possession by general vallejo before the americans took possession of the country. soon after the american occupation or conquest, general vallejo began to sell off portions of the "soscol," and continued this practice until about the year , at which time he sold the last of it, and does not appear to have had or claimed any interest since. this sale and consequent dividing the land into small parcels produced its usual effect in the way of improvements. from to the "rancho of soscol" was almost entirely reduced to absolute and actual possession and control by his vendees, being by them fenced up into fields, surrounded by substantial enclosures, and improved with expensive farm-houses, out-buildings, orchards, and the like, and was cultivated to grain wherever suitable for that purpose. it had upon it two cities of considerable importance, viz: benicia and vallejo, each of which had been at one time the capital of the state of california. no rural district of california was more highly improved than this, and but a very small portion equal to it. the title to "soscol," before its rejection by the united states supreme court, was considered the very best in all california. all the really valuable agricultural land in california was held under mexican grants, and, as a consequence, all had to pass the ordeal of the land commission. from to about very few had been finally passed upon by the courts, so that during that time the question for the farmer to decide was not what title is perfect, but what title is most likely to prove so by the final judgment of the supreme court. amongst the very best, in the opinion of the public, stood "soscol." one conclusive, unanswerable proof of that fact is this, that there was not a single settler on the grant at the time it was rejected. not one person on it, except in subordination to the vallejo title. every resident on the whole tract held his land by purchase from vallejo, or his assigns, and held just precisely the land so purchased, and not one acre more or less. this fact was not even disputed during the whole eight months of investigation through which we have just passed. it is a notorious fact that of the grants in california which have stood the test of the supreme court, very many have been entirely in the possession of squatters, and all with more or less of such possessions, and the final patent has alone succeeded in recovering the long-lost possession to the grantholder. there were no settlers on the "soscol." the people had the most perfect confidence in the title. it had been twice confirmed by tribunals of high authority and great learning--first by the united states land commission, and then by the district court of the united states. it only wanted the final confirmation by the supreme court, and none doubted that it would follow of course. business could not, and would not, await the nine years consumed in adjudicating this title. farmers were obliged to have lands, and they bought them. capital must and would seek investment, and it was lent on mortgage. when all titles required the same confirmatory decree, the citizen could not discriminate, but exercised his best judgment. the sales of lands upon the "soscol" were made at prices which called for perfect title; they brought the full improved value of the land. money was lent on mortgage in the same way. the deeds and mortgages, which accompany the respective cases, are the very best evidence of the opinion the public entertained of the character of the soscol grant title. the people were amazed when it was announced that the soscol grant had been rejected. no fact developed by this examination has appeared so surprising to the mind of the register and receiver as that there were no pre-emption settlers on the "soscol." this is so unusual in california that we expected to find the contrary. there was no possession on the tract adverse to the grant title. thus stood matters until early in the year , when the intelligence reached california that the grant had been rejected by the supreme court. the struggle soon began. there was at that time employed upon the united states navy-yard at mare island, and also upon the pacific mail company's works at benicia, a large number of mechanics and laborers. there was also in the towns of benicia and vallejo a large floating population. tempted by the great value of these lands in their highly improved state, many of these persons squatted upon the rancho. the landholders in possession resisted. the houses of the great majority of the settlers were erected in the night time, as it was necessary to enter the enclosed fields by stealth. these houses were built of rough redwood boards set up edgewise, with shed roof, and without window, fire place, or floor. they were about eight feet square, sometimes eight by ten feet, and never over six feet high. we have no hesitation in saying that they were utterly unfit for the habitation of human beings, and further that they were never designed for permanent residences. the mode of erecting these shanties was as follows: the planks were sawed the right length in the town of vallejo or benicia, in the afternoon of the day, and at nightfall were loaded upon a cart. about eleven o'clock at night the team would start for the intended settlement, reaching there about one or two o'clock in the morning. between that hour and daylight the house would be erected and finished. sometimes the house would be put together with nails, but when too near the residence of the landholder in possession, screws would be used to prevent the sound of the hammer attracting attention. very few of this class of settlers remained upon their claims above a few days, but soon returned to their ordinary occupations in the towns. generally after they would leave the landholders would remove the shanties from the ground. in some cases they would pull them down with force immediately upon discovering them, and in the presence of the settlers. a few of them got settlements near enough to their places of employment to enable them to work in town, or at the navy-yard, and to sleep in their shanties; some regularly, others only occasionally. these generally remained longer than the others, but none of this class remained up to the time of trial. none of the settlers, who went on since the grant was rejected, have attempted regular improvements or cultivation. a few have harvested the grain planted by the landholders, as it grew on their / [quarter-section]; they would harvest it, and offer this as evidence of good faith and cultivation. we have no hesitation in pronouncing, from the evidence, that these are not settlers within the spirit of the pre-emption laws, but are mere speculators, desirous of getting the improvements of another to sell and to make money. [ ] the evidence taken before those officers. * * * * * the preceding personal reminiscences of early days in california by judge field, with other sketches, were dictated by him to a stenographer in the summer of , at san francisco. they were afterwards printed for a few friends, but not published. the edition was small and soon exhausted, and each year since the judge has been asked for copies. the reprint is therefore made. the history of the attempt at his assassination by a former associate on the supreme bench of california is added. it is written by hon. george c. gorham, a warm personal friend of the judge for many years, who is thoroughly informed of the events described. * * * * * the story of the attempted assassination of justice field by a former associate on the supreme bench of california. by hon. george c. gorham. note by the publishers. mr. gorham is a life-long friend of justice field. he was his clerk when the latter held the alcalde's court in marysville, in ; and was clerk of the u. . circuit court of the district of california when it was organized, after judge field's appointment to the u.s. supreme bench. subsequently, and for several years, he was secretary of the u.s. senate. since his retirement from office he has resided in washington. for a part of the time he edited a republican paper in that city, but of late years he has been chiefly engaged in literary works, of which the principal one is the life and history of the late secretary of war, edwin m. stanton. * * * * * index. attempted assassination of justice field by a former associate on the state supreme bench chapter i the sharon-hill-terry litigation. chapter ii proceedings in the superior court of the state. chapter iii proceedings in the united states circuit court. [transriber's note: there is no chapter iv] chapter v decision of the case in the federal court. chapter vi the marriage of terry and miss hill. chapter vii the bill of revivor. chapter viii the terrys imprisoned for contempt. chapter ix terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there. chapter x president cleveland refuses to pardon terry--false statements of terry refuted. chapter xi terry's continued threats to kill justice field--return of the latter to california in . chapter xii further proceedings in the state court.--judge sullivan's decision reversed. chapter xiii attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. chapter xiv sarah althea terry charges justice field and deputy marshal neagle with murder. chapter xv justice field's arrest and petition for release on habeas corpus. chapter xvi judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. chapter xvii habeas corpus proceedings in justice field's case. chapter xviii habeas corpus proceedings in neagle's case. chapter xix expressions of public opinion. chapter xx the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. chapter xxi concluding observations. * * * * * attempted assassination of justice field by a former associate on the state supreme bench. the most thrilling episode in the eventful life of justice field was his attempted assassination at lathrop, california, on the th day of august, , by david s. terry, who had been chief justice of the state during a portion of justice field's service on that bench. terry lost his own life in his desperate attempt, by the alertness and courage of david s. neagle, a deputy united states marshal, who had been deputed by his principal, under an order from the attorney-general of the united states, to protect justice field from the assassin, who had, for nearly a year, boldly and without concealment, proclaimed his murderous purpose. the motive of terry was not in any manner connected with their association on the state supreme bench, for there had never been any but pleasant relations between them. terry resigned from the bench in to challenge senator broderick of california to the duel in which the latter was killed. he entered the confederate service during the war, and some time after its close he returned to california, and entered upon the practice of the law. in he was a candidate for presidential elector on the democratic ticket. his associates on that ticket were all elected, while he was defeated by the refusal of a number of the old friends of broderick to give him their votes. it is probable that his life was much embittered by the intense hatred he had engendered among the friends of broderick, and the severe censure of a large body of the people of the state, not especially attached to the political fortunes of the dead senator. these facts are mentioned as furnishing a possible explanation of judge terry's marked descent in character and standing from the chief-justiceship of the state to being the counsel, partner, and finally the husband of the discarded companion of a millionaire in a raid upon the latter's property in the courts. it was during the latter stages of this litigation that judge terry became enraged against justice field, because the latter, in the discharge of his judicial duties, had been compelled to order the revival of a decree of the united states circuit court, in the rendering of which he had taken no part. a proper understanding of this exciting chapter in the life of justice field renders necessary a narrative of the litigation referred to. it is doubtful if the annals of the courts or the pages of romance can parallel this conspiracy to compel a man of wealth to divide his estate with adventurers. whether it is measured by the value of the prize reached for, by the character of the conspirators, or by the desperate means to which they resorted to accomplish their object, it stands in the forefront of the list of such operations. chapter i. the sharon-hill-terry litigation. the victim, upon a share of whose enormous estate, commonly estimated at $ , , , these conspirators had set their covetous eyes, was william sharon, then a senator from the state of nevada. the woman with whom he had terminated his relations, because he believed her to be dangerous to his business interests, was sarah althea hill. desirous of turning to the best advantage her previous connection with him, she sought advice from an old negress of bad repute, and the result was a determination to claim that she had a secret contract of marriage with him. this negress, who during the trial gave unwilling testimony to having furnished the sinews of war in the litigation to the extent of at least five thousand dollars, then consulted g.w. tyler, a lawyer noted for his violent manner and reckless practices, who explained to her what kind of a paper would constitute a legal marriage contract under the laws of california. no existing contract was submitted to him, but he gave his written opinion as to what kind of a contract it would be good to have for the purpose. the pretended contract was then manufactured by sarah althea in accordance with this opinion, and tyler subsequently made a written agreement with her by which he was to act as her attorney, employ all necessary assistance, and pay all expenses, and was to have one-half of all they could get out of sharon by their joint efforts as counsel and client. this contract was negotiated by an australian named neilson, who was to have one-half of the lawyer's share. on the th of september, , a demand was made upon mr. sharon for money for miss hill. he drove her emissary, neilson, out of the hotel where he had called upon him, and the latter appeared the next day in the police court of san francisco and made an affidavit charging mr. sharon with the crime of adultery. a warrant was issued for the latter's arrest, and he was held to bail in the sum of $ , . this charge was made for the avowed purpose of establishing the manufactured contract of marriage already referred to, which bore date three years before. a copy of this alleged contract was furnished to the newspapers together with a letter having sharon's name appended to it, addressed at the top to "my dear wife," and at the bottom to "miss hill." this pretended contract and letter mr. sharon denounced as forgeries. on the d of october, , mr. sharon commenced suit in the united states circuit court at san francisco against sarah althea hill, setting forth in his complaint that he was a citizen of the state of nevada, and she a citizen of california; "that he was, and had been for years, an unmarried man; that formerly he was the husband of maria ann sharon, who died in may, , and that he had never been the husband of any other person; that there were two children living, the issue of that marriage, and also grandchildren, the children of a deceased daughter of the marriage; that he was possessed of a large fortune in real and personal property; was extensively engaged in business enterprises and ventures, and had a wide business and social connection; that, as he was informed, the defendant was an unmarried woman of about thirty years of age, for some time a resident of san francisco; that within two months then past she had repeatedly and publicly claimed and represented that she was his lawful wife; that she falsely and fraudulently pretended that she was duly married to him on the twenty-fifth day of august, , at the city and county of san francisco; that on that day they had jointly made a declaration of marriage showing the names, ages, and residences of the parties, jointly doing the acts required by the civil code of california to constitute a marriage between them, and that thereby they became and were husband and wife according to the law of that state. "the complainant further alleged that these several claims, representations, and pretensions were wholly and maliciously false, and were made by her for the purpose of injuring him in his property, business, and social relations; for the purpose of obtaining credit by the use of his name with merchants and others, and thereby compelling him to maintain her; and for the purpose of harassing him, and in case of his death, his heirs and next of kin and legatees, into payment of large sums of money to quiet her false and fraudulent claims and pretensions. he also set forth what he was informed was a copy of the declaration of marriage, and alleged that if she had any such instrument, it was 'false, forged, and counterfeited;' that he never, on the day of its date, or at any other time, made or executed any such document or declaration, and never knew or heard of the same until within a month previous to that time, and that the same was null and void as against him, and ought, in equity and good conscience, to be so declared, and ordered to be delivered up, to be annulled and cancelled." the complaint concluded with a prayer that it be adjudged and decreed that the said sarah althea hill was not and never had been his wife; that he did not make the said joint declaration of marriage with her, or any marriage between them; that said contract or joint declaration of marriage be decreed and adjudged false, fraudulent, forged, and counterfeited, and ordered to be delivered up and cancelled and annulled, and that she be enjoined from setting up any claims or pretensions of marriage thereby. sharon was a citizen of nevada, while miss hill was a citizen of california.[ ] before the time expired in which miss hill was required to answer the complaint of mr. sharon in the united states circuit court, but not until after the federal jurisdiction had attached in that court, she brought suit against him, november st, in a state superior court, in the city and county of san francisco, to establish their alleged marriage and then obtain a decree, and a division of the property stated to have been acquired since such marriage. in her complaint she alleged that on the th day of august, , they became, by mutual agreement, husband and wife, and thereafter commenced living together as husband and wife; that on that day they had jointly made a declaration of marriage in writing, signed by each, substantially in form as required by the civil code of california, and until the month of november, , had lived together as husband and wife; that since then the defendant had been guilty of sundry violations of the marriage contract. the complaint also alleged that when the parties intermarried the defendant did not have in money or property more than five millions of dollars, with an income not exceeding thirty thousand dollars a month, but that since their intermarriage they had by their prudent management of mines, fortunate speculations, manipulations of the stock market, and other business enterprises, accumulated in money and property more than ten millions of dollars, and that now he had in his possession money and property of the value at least of fifteen millions of dollars, from which he received an income of over one hundred thousand dollars a month. the complaint concluded with a prayer that the alleged marriage with the defendant might be declared legal and valid, and that she might be divorced from him, and that an account be taken of the common property, and that the same be equally divided between them. the campaign was thus fully inaugurated, which for more than six years disgraced the state with its violence and uncleanness, and finally ended in bloodshed. the leading combatants were equally resolute and determined. mr. sharon, who was a man of remarkable will and energy, would have expended his entire fortune in litigation before he would have paid tribute to those who thus attempted to plunder him. sarah althea hill was respectably connected, but had drifted away from her relations, and pursued, without restraint, her disreputable course. she affected a reckless and daredevil character, carrying a pistol, and exhibiting it on occasions in cow-boy fashion, to convey the impression that those who antagonized her had a dangerous character with whom to deal. she was ignorant, illiterate, and superstitious. the forged document which she thought to make a passport to the enjoyment of a share of sharon's millions was a clumsy piece of work. it was dated august , , and contained a clause pledging secrecy for two years thereafter. but she never made it public until september, , although she had, nearly two years before that, been turned out of her hotel by sharon's orders. at this treatment she only whimpered and wrote begging letters to him, not once claiming, even in these private letters to him, to be his wife. she could then have published the alleged contract without any violation of its terms, and claimed any rights it conferred, and it is obvious to any sane man that she would have done so had any such document then been in existence. although sharon's case against sarah althea hill was commenced in the federal court before the commencement of miss hill's case against sharon in the state court, the latter case was first brought to trial, on the th of march, . [ ] note.--a court of equity having jurisdiction to lay its hands upon and control forged and fraudulent instruments, it matters not with what pretensions and claims their validity may be asserted by their possessor; whether they establish a marriage relation with another, or render him an heir to an estate, or confer a title to designated pieces of property, or create a pecuniary obligation. it is enough that, unless set aside or their use restrained, they may impose burdens upon the complaining party, or create claims upon his property by which its possession and enjoyment may be destroyed or impaired. (sharon vs. terry, sawyer's rep., .) the civil code of california also declares that "a written instrument in respect to which there is a reasonable apprehension that, if left outstanding, it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or cancelled" (sec. ). chapter ii. proceedings in the superior court of the state. mr. sharon defended in the state court, and prosecuted in the federal court with equal energy. in the former he made an affidavit that the pretended marriage contract was a forgery and applied to the court for the right to inspect it, and to have photographic copies of it made. sarah althea resisted the judge's order to produce the document in question, until he informed her that, if she did not obey, the paper would not be admitted as evidence on the trial of the action. on the second day of the trial in the state court miss hill reinforced her cause by the employment of judge david s. terry as associate counsel. he brought to the case a large experience in the use of deadly weapons, and gave the proceedings something of the character of the ancient "wager of battle." numerous auxiliaries and supernumeraries in the shape of lesser lawyers, fighters, and suborned witnesses were employed in the proceedings, as from time to time occasion required. the woman testified in her own behalf that upon a visit to mr. sharon's office he had offered to pay her $ , per month if she would become his mistress; that she declined his offer in a business-like manner, without anger, and entered upon a conversation about getting married; she swore at a subsequent interview she drafted a marriage contract at sharon's dictation. this document, to which she testified as having been thus drawn up, is as follows: "in the city and county of san francisco, state of california, on the th day of august, a.d., , i, sarah althea hill, of the city and county of san francisco, state of california, aged twenty-seven years, do here, in the presence of almighty god, take senator william sharon, of the state of nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of senator william sharon, of the state of nevada. sarah althea hill. august , , san francisco, cal." * * * * * "i agree not to make known the contents of this paper or its existence for two years unless mr. sharon, himself, sees fit to make it known. sarah althea hill." * * * * * "in the city and county of san francisco, state of california, on the th day of august, a.d. , i, senator william sharon, of the state of nevada, aged sixty years, do here, in the presence of almighty god, take sarah althea hill, of the city and county of san francisco, california, to be my lawful and wedded wife, and do here acknowledge myself to be the husband of sarah althea hill. william sharon, nevada. august , ." in his testimony mr. sharon contradicted every material statement made by sarah althea hill. he denied every circumstance connected with the alleged drawing up of the marriage contract. he testified that on the th day of november, , he terminated his relations with and dismissed her, and made a full settlement with her by the payment of $ , in cash, and notes amounting to $ , . for these she gave him a receipt in full. he charged her with subsequently stealing that receipt at one of two or three visits made by her after her discharge. it is unnecessary to review the voluminous testimony introduced by the parties in support of their respective contentions. the alleged contract was clearly proven to be a forgery. a number of witnesses testified to conversations had with miss hill long after the date of the pretended marriage contract, in which she made statements entirely inconsistent with the existence of such a document. she employed fortune-tellers to give her charms with which she could compel mr. sharon to marry her, and this, too, when she pretended to have in her possession the evidence that she was already his wife. not an appearance of probability attended the claim of this bold adventuress. every statement she made concerning the marriage contract, and every step she took in her endeavor to enforce it, betrayed its false origin. the trial of the case in the state court continued from march th until may th, when the summer recess intervened. it was resumed july th, and occupied the court until september th, on which day the argument of counsel was concluded and the case submitted. no decision was rendered until more than three months afterwards, namely, december th. nearly two months were then allowed to pass before the decree was entered, february , . the case was tried before judge sullivan without a jury, by consent of the parties. he decided for the plaintiff, holding the marriage contract to be genuine, and to constitute a valid marriage. it was manifest that he made his decision solely upon the evidence given by sarah althea herself, whom he nevertheless branded in his opinion as a perjurer, suborner of perjury, and forger. lest this should seem an exaggeration his own words are here quoted. she stated that she was introduced by sharon to certain parties as his wife. of her statements to this effect the judge said: "plaintiff's testimony as to these occasions is directly contradicted, and in my judgment her testimony as to these matters is wilfully false." concerning $ , paid her by sharon, which she alleged she had placed in his hands in the early part of her acquaintance with him, the judge said: "this claim, in my judgment, is utterly unfounded. no such advance was ever made." at another place in his opinion the judge said: "plaintiff claims that defendant wrote her notes at different times after her expulsion from the grand hotel. if such notes were written, it seems strange that they have not been preserved and produced in evidence. i do not believe she received any such notes." with respect to another document which purported to have been signed by mr. sharon, and which sarah althea produced under compulsion, then withdrew it, and failed to produce it afterwards, when called for, saying she had lost it, judge sullivan said: "among the objections suggested to this paper as appearing on its face, was one made by counsel that the signature was evidently a forgery. the matters recited in the paper are, in my judgment, at variance with the facts it purports to recite. considering the stubborn manner in which the production of this paper was at first resisted and the mysterious manner of its disappearance, i am inclined to regard it in the light of one of the fabrications for the purpose of bolstering up plaintiff's case. i can view the paper in no other light than as a fabrication." in another part of his opinion judge sullivan made a sort of a general charge of perjury against her in the following language: "i am of the opinion that to some extent plaintiff has availed herself of the aid of false testimony for the purpose of giving her case a better appearance in the eyes of the court, but sometimes parties have been known to resort to false testimony, where in their judgment it would assist them in prosecuting a lawful claim. as i understand the facts of this case, that was done in this instance." in another place judge sullivan said: "i have discussed fully, in plain language, the numerous false devices resorted to by the plaintiff for the purpose of strengthening her case." miss sarah and her attorneys had now come in sight of the promised land of sharon's ample estate. regular proceedings, however, under the law, seemed to them too slow; and besides there was the peril of an adverse decision of the supreme court on appeal. they then decided upon a novel course. section of the civil code of california provides that while an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and to prosecute or defeat the action. the enterprising attorneys, sharing the bold spirit of their client, and presuming upon the compliance of a judge who had already done so well by them, went into the court, on the th of january, , and modestly demanded for sarah althea, upon the sole authority of the provision of law above quoted, $ , per month, as the money necessary to enable her to support herself, and $ , for attorneys' fees to prosecute the action. this was to include back pay for thirty-eight months, making a sum of $ , , which added to the $ , , attorneys' fees, would have made a grand total of $ , . this was an attempt, under the color of a beneficent law, applicable only to actions for divorce, in which the marriage was not denied, to extort from a man more than one-half million dollars, for the benefit of a woman, seeking first to establish a marriage, and then to secure a divorce, in a case in which no decree had as yet been entered, declaring her to be a wife. it was not merely seeking the money necessary to support the plaintiff and prosecute the case; it was a request that the inferior court should confiscate more than half a million dollars, in anticipation of a decision of the supreme court on appeal. it was as bold an attempt at spoliation as the commencement of the suit itself. the supreme court of the state had decided that the order of a superior court allowing alimony during the pendency of any action for divorce is not appealable, but it had not decided that, under the pretence of granting alimony, an inferior judge could apportion a rich man's estate among champerty lawyers, and their adventurous client, by an order from which there could be no appeal, made prior to any decree that there had ever been a marriage between the parties, when the fact of the marriage was the main issue in the case. the counsel for sharon insisted upon his right to have a decree entered from which he could appeal, before being thus made to stand and deliver, and the court entertained the motion. upon this motion, among other affidavits read in opposition, was one by mr. sharon himself, in which he recited the agreement between miss hill and her principal attorney, george w. tyler, in which she was to pay him for his services, one-half of all she might receive in any judgment obtained against sharon, he, tyler, advancing all the costs of the litigation. the original of this agreement had been filed by tyler with the county clerk immediately after the announcement of the opinion in the case as an evidence of his right to half of the proceeds of the judgment. it was conclusive evidence that sarah althea required no money for the payment of counsel fees. after the filing of a mass of affidavits, and an exhaustive argument of the motion, judge sullivan rendered his decision, february , , granting to sarah althea hill an allowance of $ , per month, to take effect as of the date of the motion, january , , and further sums of $ , each to be paid on the th day of april, and of each succeeding month until further order of the court. this the judge thought reasonable allowance "in view of the plaintiff's present circumstances and difficulties." for counsel fees he allowed the sum of $ , , and at the request of the victors, made in advance, he divided the spoils among them as follows: to tyler and tyler $ , to david s. terry , to moon and flournoy , to w.h. levy , to clement, osmond and clement , by what rule $ , was awarded as a proper monthly allowance to the woman whose services to mr. sharon had commanded but $ per month it is difficult to conjecture. it was benevolence itself to give $ , to a troop of lawyers enlisted under the command of tyler, who had agreed to conduct the proceedings wholly at his own cost, for one-half of what could be made by the buccaneering enterprise. it seemed to be the purpose of these attorneys to see how much of mr. sharon's money they could, with judge sullivan's assistance, lay their hands upon before the entry of the judgment in the case. from the judgment an appeal could be taken. by anticipating its entry they thought that they had obtained an order from which no appeal would lie. it was not until three days after this remarkable order was made that the decree was entered by judge sullivan declaring plaintiff and defendant to be husband and wife; that he had deserted her, and that she was entitled to a decree of divorce, with one-half of the common property accumulated by the parties since the date of what he decided to be a valid marriage contract. sharon appealed from the final judgment, and also from the order for alimony. notwithstanding this appeal, and the giving of a bond on appeal in the sum of $ , to secure the payment of all alimony and counsel fees, judge sullivan granted an order directing mr. sharon to show cause why he should not be punished for contempt in failing to pay alimony and counsel fees, as directed by the order. the supreme court, upon application, granted an order temporarily staying proceedings in the case. this stay of proceedings was subsequently made permanent, during the pendency of the appeal. mr. sharon died november , . that very day had been set for a hearing of sharon's motion for a new trial. the argument was actually commenced on that day and continued until the next, at which time the motion was ordered off the calendar because meantime mr. sharon had deceased. chapter iii. proceedings in the united states circuit court. while these proceedings were being had in the state courts the case of sharon vs. hill in the federal court was making slow progress. miss hill's attorneys seemed to think that her salvation depended upon reaching a decision in her case before the determination of sharon's suit in the united states circuit court. they were yet to learn, as they afterwards did, that after a united states court takes jurisdiction in a case, it cannot be ousted of that jurisdiction by the decision of a state court, in a proceeding subsequently commenced in the latter. seldom has "the law's delay" been exemplified more thoroughly than it was by the obstacles which her attorneys were able to interpose at every step of the proceedings in the federal court. sharon commenced his suit in the united states circuit court october , , twenty-eight days before his enemy commenced hers in the state superior court. by dilatory pleas her counsel succeeded in delaying her answer to sharon's suit until after the decision in her favor in the state court. she did not enter an appearance in the federal court until the very last day allowed by the rule. a month later she filed a demurrer. her counsel contrived to delay the argument of this demurrer for seven weeks after it was filed. it was finally argued and submitted on the st of january, . on the d of march it was overruled and the defendant was ordered to answer in ten days, to wit, march th. then the time for answering was extended to april th. when that day arrived her counsel, instead of filing an answer, filed a plea in abatement, denying the non-residence of mr. sharon in the state of california, on which depended his right to sue in the federal court. to this mr. sharon's counsel filed a replication on the th of may. it then devolved upon miss hill's counsel to produce evidence of the fact alleged in the plea, but, after a delay of five months and ten days, no evidence whatever was offered, and the court ordered the plea to be argued on the following day. it was overruled, and thirty days were given to file an answer to sharon's suit. the case in the state court had then been tried, argued, and submitted thirty days before, but miss hill's counsel were not yet ready to file their answer within the thirty days given them, and the court extended the time for answer until december th. six days before that day arrived judge sullivan rendered his decision. at last, on the th of december, , fourteen months after the filing of sharon's complaint, sarah althea's answer was filed in the federal court, in which, among other things, she set up the proceedings and decree of the state court, adjudging the alleged marriage contract to be genuine and legal, and the parties to be husband and wife, and three days later sharon filed his replication. there was at no time any delay or want of diligence on the part of the plaintiff in prosecuting this suit to final judgment. on the contrary, as is plainly shown in the record above stated, the delays were all on the part of the defendant. the taking of the testimony in the united states circuit court commenced on the th of february, , and closed on the th of august following. the struggle in the state court was going on during all the time of the taking of the testimony in the federal court, and intensified the excitement attendant thereon. miss hill was in constant attendance before the examiner who took the testimony, often interrupting the proceedings with her turbulent and violent conduct and language, and threatening the lives of mr. sharon's counsel. she constantly carried a pistol, and on occasions exhibited it during the examination of witnesses, and, pointing it at first one and then another, expressed her intention of killing them at some stage of the proceedings. she was constantly in contempt of the court, and a terror to those around her. her conduct on one occasion, in august, , became so violent that the taking of the testimony could not proceed, and justice field, the presiding judge of the circuit, made an order that she should be disarmed, and that a bailiff of the court should sit constantly at her side to restrain her from any murderous outbreak, such as she was constantly threatening. her principal attorney, tyler, was also most violent and disorderly. judge terry, while less explosive, was always ready to excuse and defend his client. (see report of proceedings in sharon vs. hill, sawyer's circuit court reps., .) upon the request of counsel for the complainant, the examiner in one case reported to the court the language and the conduct of miss hill. among other things, he reported her as saying: "when i see this testimony [from which certain scandalous remarks of hers were omitted] i feel like taking that man stewart[ ] out and cowhiding him. i will shoot him yet; that very man sitting there. to think that he would put up a woman to come here and deliberately lie about me like that. i will shoot him. they know when i say i will do it that i will do it. i shall shoot him as sure as you live; that man that is sitting right there. and i shall have that woman mrs. smith arrested for this, and make her prove it." and again: "i can hit a four-bit piece nine times out of ten." the examiner said that pending the examination of one of the witnesses, on the occasion mentioned, the respondent drew a pistol from her satchel, and held it in her right hand; the hand resting for a moment upon the table, with the weapon pointed in the direction of judge evans. he also stated that on previous occasions she had brought to the examiner's room during examinations a pistol, and had sat for some length of time holding it in her hand, to the knowledge of all persons present at the time. after the reading of the examiner's report in open court, justice field said: "in the case of william sharon versus sarah althea hill, the examiner in chancery appointed by the court to take the testimony has reported to the court that very disorderly proceedings took place before him on the d instant; that at that day, in his room, when counsel of the parties and the defendant were present, and during the examination of a witness by the name of piper, the defendant became very much excited, and threatened to take the life of one of the counsel, and that subsequently she drew a pistol and declared her intention to carry her threat into effect. it appears also from the report of the examiner that on repeated occasions the defendant has attended before him, during the examination of witnesses, armed with a pistol. such conduct is an offense against the laws of the united states punishable by fine and imprisonment. it interferes with the due order of proceedings in the administration of justice, and is well calculated to bring them into contempt. i, myself, have not heretofore sat in this case and do not expect to participate in its decision; i intend in a few days to leave for the east, but i have been consulted by my associate, and have been requested to take part in this side proceeding, for it is of the utmost importance for the due administration of justice that such misbehavior as the examiner reports should be stopped, and measures be taken which will prevent its recurrence. my associate will comment on the laws of congress which make the offense a misdemeanor, punishable by fine and imprisonment. "the marshal of the court will be directed to disarm the defendant whenever she goes before the examiner or into court in any future proceeding, and to appoint an officer to keep strict surveillance over her, in order that she may not carry out her threatened purpose. this order will be entered. the justice then said that it is to be observed that this block, embracing this building--the court-house--is under the exclusive jurisdiction of the united states. every offense committed within it is an offense against the united states, and the state has no jurisdiction whatever. this fact seems to have been forgotten by the parties." the following is the order then entered as directed by justice field: "whereas it appears from the report to this court of the examiner in chancery in this case appointed to take the depositions of witnesses, that on the d day of august, instant, at his office, counsel of the parties appeared, namely, william m. stewart, esquire, and oliver p. evans, esquire, for the complainant, and w.b. tyler, esquire, for the defendant, and the defendant in person, and that during the examination before said examiner of a witness named piper, the defendant became excited and threatened the life of the counsel of the complainant present, and exhibited a pistol with a declared intention to carry such threat into effect, thereby obstructing the order of the proceedings, and endeavoring to bring the same into contempt; and "whereas it further appears that said defendant habitually attends before said examiner carrying a pistol, "_it is ordered_, that the marshal of this court take such measures as may be necessary to disarm the said defendant, and keep her disarmed, and under strict surveillance, while she is attending the examination of witnesses before said examiner, and whenever attending in court, and that a deputy be detailed for that purpose." [ ] senator stewart, who was one of the counsel against her in the suit. chapter v. decision of the case in the federal court. the taking of the testimony being completed, the cause was set for a hearing on september th. after an argument of thirteen days the cause was submitted on the th of september, . on the th of december, , the court rendered its decision, that the alleged declaration of marriage and the letters purporting to have been addressed "my dear wife" were false and forged, and that the contemporaneous conduct of the parties, and particularly of the defendant, was altogether incompatible with the claim of marriage or the existence of any such declaration or letters. a decree was ordered accordingly, and the court made the following further order: "as the case was argued and submitted during the lifetime of the complainant, who has since deceased, the decree will be entered nunc pro tunc, as of september , , the date of its submission and a day prior to the decease of the complainant." the opinion of the court was delivered by judge deady, of the united states district court of oregon, who sat in the case with judge sawyer, the circuit judge. of the old negress under whose direction the fraudulent marriage contract had been manufactured, and under whose advice and direction the suit in the state court had been brought, the judge said: "mary e. pleasant, better known as mammie pleasant, is a conspicuous and important figure in this affair; without her it would probably never have been brought before the public. she appears to be a shrewd old negress of some means. "in my judgment this case and the forgeries and perjuries committed in its support had their origin largely in the brain of this scheming, trafficking, crafty old woman." he found that the declaration of marriage was forged by the defendant by writing the declaration over a simulated signature, and that her claim to be the wife of the plaintiff was wholly false, and had been put forth by her and her co-conspirators for no other purpose than to despoil the plaintiff of his property. judge sawyer also filed an opinion in the case, in which he declared that the weight of the evidence satisfactorily established the forgery and the fraudulent character of the instrument in question. chapter vi. the marriage of terry and miss hill. sarah althea now received a powerful recruit, who enlisted for the war. this was one of her lawyers, david s. terry, whom she married on the th day of january, , twelve days after the decision of the circuit court against her, and which he had heard announced, but before a decree had been entered in conformity with the decision. terry seemed willing to take the chances that the decree of the superior court would not be reversed in the supreme court of the state. the decision of the federal court he affected to utterly disregard. it was estimated that not less than $ , , would be sarah althea's share of sharon's estate, in the event of success in her suit. she would be a rich widow if it could be established that she had ever been a wife. she had quarreled with tyler, her principal attorney, long before, and accused him of failing in his professional duty. if she could escape from the obligations of her contract with him, she would not be compelled to divide with him the hoped-for $ , , . although judge terry had been chief justice of the supreme court of california, the crimes of perjury and forgery and subornation of perjury which had been loudly charged in judge sullivan's opinion against the woman, in whose favor he gave judgment, seemed to him but trifles. strangely enough, neither he nor sarah althea ever uttered a word of resentment against him on account of these charges. the marriage of terry with this desperate woman in the face of an adverse decision of the circuit court, by which jurisdiction was first exercised upon the subject-matter, was notice to all concerned that, by all the methods known to him, he would endeavor to win her cause, which he thus made his own. he took the position that any denial of sarah althea's pretense to have been the wife of sharon was an insult to her, which could only be atoned by the blood of the person who made it. this was the proclamation of a vendetta against all who should attempt to defend the heirs of mr. sharon in the possession of that half of their inheritance which he and sarah althea had marked for their own. his subsequent course showed that he relied upon the power of intimidation to secure success. he was a man of powerful frame, accustomed all his life to the use of weapons, and known to be always armed with a knife. he had the reputation of being a fighting man. he had decided that sarah althea had been the lawful wife of sharon, and that therefore he had married a virtuous widow. he had not often been crossed in his purpose or been resisted when he had once taken a position. by his marriage he virtually served notice on the judges of the supreme court of the state, before whom the appeal was then pending, that he would not tamely submit to be by them proclaimed to be the dupe of the discarded woman of another. it was well understood that he intended to hold them personally responsible to him for any decision that would have that effect. these intentions were said to have been made known to them. his rule in life, as once stated by himself, was to compel acquiescence in his will by threats of violence, and known readiness to carry his threats into effect. this, he said, would in most cases insure the desired result. he counted on men's reluctance to engage in personal difficulties with him. he believed in the persuasiveness of ruffianism. whether he thought his marriage would frighten judges sawyer and deady, who had just rendered their decision in the united states circuit court, and cause them either to modify the terms of the decree not yet entered, or deter them from its enforcement, is a matter of uncertainty. he was of the ultra state's-rights school and had great faith in the power of the courts of a state when arrayed against those of the united states. he had always denied the jurisdiction of the latter in the case of sarah althea, both as to the subject-matter and as to the parties. he refused to see any difference between a suit for a divorce and a suit to cancel a forged paper, which, if allowed to pass as genuine, would entitle its holder to another's property. he persisted in denying that sharon had been a citizen of nevada during his lifetime, and ignored the determination of this question by the circuit court. but if judge terry had counted on the fears of the united states judges of california he had reckoned too boldly, for on the th of january, , eight days after his marriage, the decree of the circuit court was formally entered. this decree adjudged the alleged marriage contract of august , , false, counterfeited, fabricated, and fraudulent, and ordered that it be surrendered to be cancelled and annulled, and be kept in the custody of the clerk, subject to the further order of the court; and sarah althea hill and her representatives were perpetually enjoined from alleging the genuineness or the validity of the instrument, or making use of it in any way to support her claims as wife of the complainant. the execution of this decree would, of course, put an end to sarah althea's claim, the hope of maintaining which was supposed to have been the motive of the marriage. to defeat its execution then became the sole object of terry's life. this he hoped to do by antagonizing it with a favorable decision of the supreme court of the state, on the appeals pending therein. it has heretofore been stated that the case against sharon in the superior court was removed from the calendar on the th day of november, , because of the defendant's death on the previous day. the th of february following, upon proper application, the court ordered the substitution of frederick w. sharon as executor and sole defendant in the suit in the place of william sharon, deceased. the motion for a new trial was argued on the th of the following may, and held under advisement until the th of the following october, when it was denied. from this order of denial an appeal was taken by the defendant. it must be borne in mind that there were now two appeals in this case to the supreme court of the state from the superior court. one taken on the th of february, , from the judgment of judge sullivan, and from his order for alimony and fees, and the other an appeal taken october , , from the order denying the new trial in the cause. on the st of january, , the supreme court rendered its decision, affirming the judgment of the superior court in favor of sarah althea, but reversing the order made by judge sullivan granting counsel fees, and reducing the allowance for alimony from $ , per month to $ . four judges concurred in this decision, namely, mckinstry, searles, patterson, and temple. three judges dissented, to wit, thornton, sharpstein, and mcfarland. there then remained pending in the same court the appeal from the order granting a new trial. it was reasonable that terry should expect a favorable decision on this appeal, as soon as it could be reached. this accomplished, he and sarah althea thought to enter upon the enjoyment of the great prize for which they had contended with such desperate energy. terry had always regarded the decree of the circuit court as a mere harmless expression of opinion, which there would be no attempt to enforce, and which the state courts would wholly ignore. whatever force it might finally be given by the supreme court of the united states appeared to him a question far in the future, for he supposed he had taken an appeal from the decree. this attempted appeal was found to be without effect, because when ordered the suit had abated by the death of the plaintiff, and no appeal could be taken until the case was revived by order of the court. this order was never applied for. the two years within which an appeal could have been taken expired january , . the decree of the circuit court had therefore become final at that time. chapter vii. the bill of revivor. it was at this stage of the prolonged legal controversy that justice field first sat in the case. the executor of the sharon estate, on the th of march, , filed a bill of revivor in the united states circuit court. this was a suit to revive the case of sharon vs. hill, that its decree might stand in the same condition and plight in which it was at the time of its entry, which, being _nunc pro tunc_, was of the same effect as if the entry had preceded the death of mr. sharon, the case having been argued and submitted during his lifetime. the decree directed the surrender and cancellation of the forged marriage certificate, and perpetually enjoined sarah althea hill, and her representatives, from alleging the genuineness or validity of that instrument, or making any use of the same in evidence, or otherwise to support any rights claimed under it. the necessity for this suit was the fact that the forged paper had not been surrendered for cancellation, as ordered by the decree, and the plaintiff feared that the defendant would claim and seek to enforce property rights as wife of the plaintiff, by authority of the alleged written declaration of marriage, under the decree of another court, essentially founded thereupon, contrary to the perpetual injunction ordered by the circuit court. to this suit, david s. terry, as husband of the defendant, was made a party. it merely asked the circuit court to place its own decree in a position to be executed, and thereby prevent the spoliation of the sharon estate, under the authority of the decree of judge sullivan in the suit in the state court subsequently commenced. a demurrer was filed by the defendant. it was argued in july before justice field, judge sawyer, and district judge sabin. it was overruled on the d of september, when the court ordered that the original suit of sharon against hill, and the final decree therein, stand revived in the name of frederick w. sharon as executor, and that the said suit and the proceedings therein be in the same plight and condition they were in at the death of william sharon, so as to give the executor, complainant as aforesaid, the full benefit, rights, and protection of the decree, and full power to enforce the same against the defendants, and each of them, at all times and in all places, and in all particulars. the opinion in the case was delivered by justice field. during its delivery he was interrupted by mrs. terry with violent and abusive language, and an attempt by her to take a pistol from a satchel which she held in her hand. her removal from the court-room by order of justice field; her husband's assault upon the marshal with a deadly weapon for executing the order, and the imprisonment of both the terrys for contempt of court, will be more particularly narrated hereafter. the commencement of the proceedings for the revival of the suit was well calculated to alarm the terrys. they saw that the decree in the circuit court was to be relied upon for something more than its mere moral effect. their feeling towards judges sawyer and deady was one of most intense hatred. judge deady was at his home in oregon, beyond the reach of physical violence at their hands, but judge sawyer was in san francisco attending to his official duties. upon him they took an occasion to vent their wrath. it was on the th of august, , after the commencement of the revivor proceedings, but before the decision. judge sawyer was returning in the railway train to san francisco from los angeles, where he had been to hold court. judge terry and his wife took the same train at fresno. judge sawyer occupied a seat near the center of the sleeping-car, and judge and mrs. terry took the last section of the car, behind him, and on the same side. a few minutes after leaving fresno, mrs. terry walked down the aisle to a point just beyond judge sawyer, and turning around with an ugly glare at him, hissed out, in a spiteful and contemptuous tone: "are you here?" to which the judge quietly replied: "yes, madam," and bowed. she then resumed her seat. a few minutes after, judge terry walked down the aisle about the same distance, looked over into the end section at the front of the car, and finding it vacant, went back, got a small hand-bag, and returned and seated himself in the front section, with his back to the engine and facing judge sawyer. mrs. terry did not (at the moment) accompany him. a few minutes later she walked rapidly down the passage, and as she passed judge sawyer, seized hold of his hair at the back of his head, gave it a spiteful twitch and passed quickly on, before he could fully realize what had occurred. after passing she turned a vicious glance upon him, which was continued for some time after taking her seat by the side of her husband. a passenger heard mrs. terry say to her husband: "i will give him a taste of what he will get bye and bye." judge terry was heard to remark: "the best thing to do with him would be to take him down the bay and drown him." upon the arrival of judge sawyer at san francisco, he entered a street car, and was followed by the terrys. mrs. terry took a third seat from him, and seeing him, said: "what, are you in this car too?" when the terrys left the car mrs. terry addressed some remark to judge sawyer in a spiteful tone, and repeated it. he said he did not quite catch it, but it was something like this: "we will meet again. this is not the end of it." persons at all familiar with the tricks of those who seek human life, and still contrive to keep out of the clutches of the law, will see in the scene above recited an attempt to provoke an altercation which would have been fatal to judge sawyer, if he had resented the indignity put upon him by mrs. terry, by even so much as a word. this could easily have been made the pretext for an altercation between the two men, in which the result would not have been doubtful. there could have been no proof that judge terry knew of his wife's intention to insult and assault judge sawyer as she passed him, nor could it have been proven that he knew she had done so. a remonstrance from sawyer could easily have been construed by terry, upon the statement of his wife, into an original, unprovoked, and aggressive affront. it is now, however, certain that the killing of judge sawyer was not at that time intended. it may have been, to use mrs. terry's words, "to give him a taste of what he would get bye and bye," if he should dare to render the decision in the revivor case adversely to them. this incident has been here introduced and dwelt upon for the purpose of showing the tactics resorted to by the terrys during this litigation, and the methods by which they sought to control decisions. it is entirely probable that they had hopes of intimidating the federal judges, as many believed some state judges had been, and that thus they might "from the nettle danger, pluck the flower safety." we have seen that they reckoned without their host. we shall now see to what extent their rage carried them on the day that the decision was rendered reviving the decree. chapter viii. the terrys imprisoned for contempt. on the day after judge sawyer's return from los angeles he called the marshal to his chambers, and notified him of mrs. terry's violent conduct towards him on the train in the presence of her husband, so that he might take such steps as he thought proper to keep order when they came into the court-building, and see that there was no disturbance in the court-room. on the morning of september d, the marshal was again summoned to judge sawyer's room, where judge field was also present. they informed him that the decision in the revival suit would be rendered that day, and they desired him to be present, with a sufficient number of bailiffs to keep order in court. they told him that judging from the action of the terrys on the train, and the threats they were making so publicly, and which were being constantly published in the newspapers, it was not impossible that they might create a disturbance in the court-room. when the court opened that day, it found terry and his wife already seated within the bar, and immediately in front of the judges. as it afterward appeared, they were both on a war-footing, he being armed with a concealed bowie-knife, and she with a -calibre revolver, which she carried in a small hand-bag, five of its chambers being loaded. the judges took their seats on the bench, and very shortly afterward justice field, who presided, began reading the opinion of the court in which both of his associates concurred. a printed pamphlet copy of this opinion contains pages, of which are taken up with a statement of the case. the opinion commences at page and covers the remaining pages of the pamphlet. from time to time, as the reading of the opinion progressed, mrs. terry, who was greatly excited, was observed to unclasp and clasp again the fastening of her satchel which contained her pistol, as if to be sure she could do so at any desired moment. at the th page of the opinion the following passage occurs: "the original decree is not self-executing in all its parts; it may be questioned whether any steps could be taken for its enforcement, until it was revived, but if this were otherwise, the surrender of the alleged marriage contract for cancellation, as ordered, requires affirmative action on the part of the defendant. the relief granted is not complete until such surrender is made. when the decree pronounced the instrument a forgery, not only had the plaintiff the right that it should thus be put out of the way of being used in the future to his embarrassment and the embarrassment of his estate, but public justice required that it should be formally cancelled, that it might constantly bear on its face the evidence of its bad character, whenever or wherever presented or appealed to." when mrs. terry heard the above words concerning the surrender of the alleged marriage contract for cancellation, she first endeavored for a few seconds, but unsuccessfully, to open the satchel containing her pistol. for some reason the catch refused to yield. then, rising to her feet, and placing the satchel before her on the table, she addressed the presiding justice, saying: "are you going to make me give up my marriage contract?" justice field said, "be seated, madam." she repeated her question: "are you going to take the responsibility of ordering me to deliver up that contract?" she was again ordered to resume her seat. at this she commenced raving loudly and violently at the justice in coarse terms, using such phrases as these: "mr. justice field, how much have you been bought for? everybody knows that you have been bought; that this is a paid decision." "how big was the sack?" "how much have you been paid for the decision?" "you have been bought by newland's coin; everybody knows you were sent out here by the newlands to make this decision." "every one of you there have been paid for this decision." at the commencement of this tirade, and after her refusal to desist when twice ordered to do so, the presiding justice directed the marshal to remove her from the court-room. she said defiantly: "i will not be removed from the court-room; you dare not remove me from the court-room." judge terry made no sign of remonstrance with her, had not endeavored to restrain her, but had, on the contrary, been seen to nod approvingly to her, as if assenting to something she had said to him just before she sprang to her feet. the instant, however, the court directed her removal from the room, of which she had thus taken temporary possession, to the total suspension of the court proceedings, his soul was "in arms and eager for the fray." as the marshal moved toward the offending woman, he rose from his seat, under great excitement, exclaiming, among other things, "no living man shall touch my wife!" or words of that import, and dealt the marshal a violent blow in the face,[ ] breaking one of his front teeth. he then unbuttoned his coat and thrust his hand under his vest, where his bowie-knife was kept, apparently for the purpose of drawing it, when he was seized by persons present, his hands held from drawing his weapon, and he himself forced down on his back. the marshal, with the assistance of a deputy, then removed mrs. terry from the court-room, she struggling, screaming, kicking, striking, and scratching them as she went, and pouring out imprecations upon judges field and sawyer, denouncing them as "corrupt scoundrels," and declaring she would kill them both. she was taken from the room into the main corridor, thence into the marshal's business office, and then into an inner room of his office. she did not cease struggling when she reached that room, but continued her frantic abuse. while mrs. terry was being removed from the court-room terry was held down by several strong men. he was thus, by force alone, prevented from drawing his knife on the marshal. while thus held he gave vent to coarse and denunciatory language against the officers. when mrs. terry was removed from the court-room he was allowed to rise. he at once made a swift rush for the door leading to the corridor on which was the marshal's office. as he was about leaving the room or immediately after stepping out of it, he succeeded in drawing his knife. as he crossed the threshold he brandished the knife above his head, saying, "i am going to my wife." there was a terrified cry from the bystanders: "he has got a knife." his arms were then seized by a deputy marshal and others present, to prevent him from using it, and a desperate struggle ensued. four persons held on to the arms and body of terry, and one presented a pistol to his head, threatening at the same time to shoot him if he did not give up the knife. to these threats terry paid no attention, but held on to the knife, actually passing it during the struggle from one hand to the other. david neagle then seized the handle of the knife and commenced drawing it through terry's hand, when terry relinquished it. the whole scene was one of the wildest alarm and confusion. to use the language of one of the witnesses, "terry's conduct throughout this affair was most violent. he acted like a demon, and all the time while in the corridor he used loud and violent language, which could be plainly heard in the court-room, and, in fact, throughout the building," applying to the officers vile epithets, and threatening to cut their hearts out if they did not let him go to his wife. the knife which terry drew, and which he afterwards designated as "a small sheath knife," was, including the handle, nine and a quarter inches long, the blade being five inches, having a sharp point, and is commonly called a bowie-knife. he himself afterwards represented that he drew this knife, not "because he wanted to hurt anybody, but because he wanted to force his way into the marshal's office." the presiding justice had read only a small portion of the opinion of the court when he was interrupted by the boisterous and violent proceedings described. on their conclusion, by the arrest of the terrys, he proceeded with the reading of the opinion, which occupied nearly a whole hour. the justices, without adjourning the court, then retired to the adjoining chambers of the presiding justice for deliberation. they there considered of the action which should be taken against the terrys for their disorderly and contemptuous conduct. after determining what that should be they returned to the court-room and announced it. for their conduct and resistance to the execution of the order of the court both were adjudged guilty of contempt and ordered, as a punishment, to be imprisoned in the county jail, terry for six months and his wife for thirty days. when terry heard of the order, and the commitment was read to him, he said, "judge field" (applying to him a coarse and vituperative epithet) "thinks when i get out, when i get released from jail, that he will be in washington, but i will meet him when he comes back next year, and it will not be a very pleasant meeting for him." mrs. terry said that she would kill both judges field and sawyer, and repeated the threat several times. while the prisoners were being taken to jail, mrs. terry said to her husband, referring to judge sawyer: "i wooled him good on the train coming from los angeles. he has never told that." to which he replied: "he will not tell that; that was too good." she said she could have shot judge field and killed him from where she stood in the court-room, but that she was not ready then to kill the old villain; she wanted him to live longer. while crossing the ferry to oakland she said, "i could have killed judges field and sawyer; i could shoot either one of them, and you would not find a judge or a jury in the state would convict me." she repeated this, and terry answered, saying: "no, you could not find a jury that would convict any one for killing the old villain," referring to judge field. the jailer at alameda testified that one day mrs. terry showed him the sheath of her husband's knife, saying: "that is the sheath of that big bowie-knife that the judge drew. don't you think it is a large knife?" judge terry was present, and laughed and said: "yes; i always carry that," meaning the knife. to j.h. o'brien, a well-known citizen, judge terry said that "after he got out of jail he would horsewhip judge field. he said he did not think he would ever return to california, but this earth was not large enough to keep him from finding judge field, and horsewhipping him," and said, "if he resents it i will kill him." to a newspaper writer, thomas t. williams, he said: "judge field would not dare to come out to the pacific coast, and he would have a settlement with him if he did come." j.m. shannon, a friend of terry's for thirty years, testified that while the terrys were in jail he called there with mr. wigginton, formerly a member of congress from california; that during the call mrs. terry said something to her husband to the effect that they could not do anything at all in regard to it. he said: "yes, we can." she asked what they could do. he said: "i can kill old sawyer, damn him. i will kill old sawyer, and then the president will have to appoint some one in his place." in saying this "he brought his fist down hard and seemed to be mad." ex-congressman wigginton also testified concerning this visit to terry. it occurred soon after the commitment. he went to arrange about some case in which he and terry were counsel on opposite sides. he told terry of a rumor that there was some old grudge or difference between him and judge field. terry said there was none he knew of. he said: "'when judge field's name was mentioned as candidate for president of the united states,'--i think he said,--'when i was a delegate to the convention, it being supposed that i had certain influence with a certain political element, that also had delegates in the convention, some friend or friends'--i will not be sure whether it was friend or friends--'of judge field came to me and asked for my influence with these delegates to secure the nomination for judge field. my answer'--i am now stating the language as near as i can of judge terry's--'my answer was, 'no, i have no influence with that element.' i understood it to be the workingmen's delegates. i could not control these delegates, and if i could would not control them for field.' he said: 'that may have caused some alienation, but i do not know that field knew that.'" mr. wigginton said that mrs. terry asked her husband what he could do, and he replied, showing more feeling than he had before: "do? i can kill old sawyer, and by god, if necessary, i will, and the president will then have to appoint some one else in his place." [ ] one of the witnesses stated that terry also said, "get a written order from the court." chapter ix. terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there--president cleveland refuses to pardon him--falsehoods refuted. on the th of september terry petitioned the circuit court for a revocation of the order of imprisonment in his case, and in support thereof made the following statement under oath: "that when petitioner's wife, the said sarah a. terry, first arose from her seat, and before she uttered a word, your petitioner used every effort in his power to cause her to resume her seat and remain quiet, and he did nothing to encourage her in her acts of indiscretion; when this court made the order that petitioner's wife be removed from the court-room your petitioner arose from his seat with the intention and purpose of himself removing her from the court-room quietly and peaceably, and that he had no intention or design of obstructing or preventing the execution of said order of the court; that he never struck or offered to strike the united states marshal until the said marshal had assaulted himself, and had in his presence violently, and as he believed unnecessarily, assaulted the petitioner's wife. "your petitioner most solemnly swears that he neither drew nor attempted to draw any deadly weapon of any kind whatever in said court-room, and that he did not assault or attempt to assault the u.s. marshal with any deadly weapon in said court-room or elsewhere. and in this connection he respectfully represents that after he left said court-room he heard loud talking in one of the rooms of the u.s. marshal, and among the voices proceeding therefrom he recognized that of his wife, and he thereupon attempted to force his way into said room through the main office of the united states marshal; the door of the room was blocked by such a crowd of men that the door could not be closed; that your petitioner then, for the first time, drew from inside his vest a small sheath-knife, at the same time saying to those standing in his way in said door, that he did not want to hurt any one; that all he wanted was to get into the room where his wife was. the crowd then parted and your petitioner entered the doorway, and there saw a united states deputy marshal with a revolver in his hand pointed to the ceiling of the room. some one then said: 'let him in if he will give up his knife,' and your petitioner immediately released hold of the knife to some one standing by. "in none of these transactions did your petitioner have the slightest idea of showing any disrespect to this honorable court or any of the judges thereof. "that he lost his temper, he respectfully submits was a natural consequence of himself being assaulted when he was making an honest effort to peaceably and quietly enforce the order of the court, so as avoid a scandalous scene, and of his seeing his wife so unnecessarily assaulted in his presence." it will be observed that terry, in his petition, contradicts the facts recited in the orders for the commitment of himself and his wife. these orders were made by justice field. circuit judge sawyer, and district judge sabin from the district of nevada, who did not depend upon the testimony of others for information as to the facts in the case, but were, themselves, eye-witnesses and spoke from personal observation and absolute knowledge. in passing upon terry's petition, these judges, speaking through justice field, who delivered the opinion of the court, bore testimony to a more particular account of the conduct of terry and his wife than had been given in the order for the commitment. as the scene has already been described at length, this portion of the opinion of the court would be a mere repetition, and is therefore omitted. after reciting the facts, justice field referred to the gravity of terry's offense in the following terms: "the misbehavior of the defendant, david s. terry, in the presence of the court, in the court-room, and in the corridor, which was near thereto, and in one of which (and it matters not which) he drew his bowie-knife, and brandished it with threats against the deputy of the marshal and others aiding him, is sufficient of itself to justify the punishment imposed. but, great as this offense was, the forcible resistance offered to the marshal in his attempt to execute the order of the court, and beating him, was a far greater and more serious affair. the resistance and beating was the highest possible indignity to the government. when the flag of the country is fired upon and insulted, it is not the injury to the bunting, the linen, or silk on which the stars and stripes are stamped which startles and arouses the country. it is the indignity and insult to the emblem of the nation's majesty which stirs every heart, and makes every patriot eager to resent them. so, the forcible resistance to an officer of the united states in the execution of the process, orders, and judgments of their courts is in like manner an indignity and insult to the power and authority of the government which can neither be overlooked nor extenuated." after reviewing terry's statement, justice field said: "we have read this petition with great surprise at its omissions and misstatements. as to what occurred under our immediate observation, its statements do not accord with the facts as we saw them; as to what occurred at the further end of the room and in the corridor, its statements are directly opposed to the concurring accounts of the officers of the court and parties present, whose position was such as to preclude error in their observations. according to the sworn statement of the marshal, which accords with our own observations, so far from having struck or assaulted terry, he had not even laid his hands upon him when the violent blow in the face was received. and it is clearly beyond controversy that terry never voluntarily surrendered his bowie-knife, and that it was wrenched from him only after a violent struggle. "we can only account for his misstatement of facts as they were seen by several witnesses, by supposing that he was in such a rage at the time that he lost command of himself, and does not well remember what he then did, or what he then said. some judgment as to the weight this statement should receive, independently of the incontrovertible facts at variance with it, may be formed from his speaking of the deadly bowie-knife he drew as 'a small sheath-knife,' and of the shameless language and conduct of his wife as 'her acts of indiscretion.' "no one can believe that he thrust his hand under his vest where his bowie-knife was carried without intending to draw it. to believe that he placed his right hand there for any other purpose--such as to rest it after the violent fatigue of the blow in the marshal's face or to smooth down his ruffled linen--would be childish credulity. "but even his own statement admits the assaulting of the marshal, who was endeavoring to enforce the order of the court, and his subsequently drawing a knife to force his way into the room where the marshal had removed his wife. yet he offers no apology for his conduct; expresses no regret for what he did, and makes no reference to his violent and vituperative language against the judges and officers of the court, while under arrest, which is detailed in the affidavits filed." in refusing to grant the petition the court said: "there is nothing in his petition which would justify any remission of the imprisonment. the law imputes an attempt to accomplish the natural result of one's acts, and when these acts are of a criminal nature it will not accept, against such implication, the denial of the transgressor. no one would be safe if the denial of a wrongful or criminal act would suffice to release the violator of the law from the punishment due his offenses." on september , , after the announcement of the opinion of the court by mr. justice field denying the petition of d.s. terry for a revocation of the order committing him for contempt, mr. terry made public a correspondence between himself and judge solomon heydenfeldt, which explains itself, and is as follows: "my dear terry: "the papers which our friend stanley sends you will explain what we are trying to do. i wish to see field to-morrow and sound his disposition, and if it seems advisable i will present our petition. but in order to be effective, and perhaps successful, i wish to feel assured and be able to give the assurance that failure to agree will not be followed by any attempt on your part to break the peace either by action or demonstration. i know that you would never compromise me in any such manner, but it will give me the power to make an emphatic assertion to that effect and that ought to help. "please answer promptly. "s. heydenfeldt." the reply of judge terry is as follows: "dear heydenfeldt: "your letter was handed me last evening. i do not expect a favorable result from any application to the circuit court, and i have very reluctantly consented that an application be made to judge field, who will probably wish to pay me for my refusal to aid his presidential aspirations four years ago. i had a conversation with garber on saturday last in which i told him if i was released i would seek no personal satisfaction for what had passed. you may say as emphatically as you wish that i do not contemplate breaking the peace, and that, so far from seeking, i will avoid meeting any of the parties concerned. i will not promise that i will refrain from denouncing the decision or its authors. i believe that the decision was purchased and paid for with coin from the sharon estate, and i would stay here for ten years before i would say that i did not so believe. if the judges of the circuit court would do what is right they would revoke the order imprisoning my wife. she certainly was in contempt of court, but that great provocation was given by going outside the record to smirch her character ought to be taken into consideration in mitigation of the sentence. field, when a legislator, thought that no court should be allowed to punish for contempt by imprisonment for a longer period than five days. my wife has already been in prison double that time for words spoken under very great provocation. no matter what the result, i propose to stay here until my wife is dismissed. "yours truly, "d.s. terry." in the opinion of the court, referred to in the foregoing letter as "smirching the character" of mrs. terry, there was nothing said reflecting upon her, except what was contained in quotations from the opinion of judge sullivan of the state court in the divorce case of sharon vs. hill in her favor. these quotations commenced at page of the pamphlet copy of justice field's opinion, when less than three pages remained to be read. it was at page of the pamphlet that justice field was reading when mrs. terry interrupted him and was removed from the court-room. after her removal he resumed the reading of the opinion, and only after reading pages, occupying nearly an hour, did he reach the quotations in which judge sullivan expressed his own opinion that mrs. terry had committed perjury several times in his court. the reading of them could not possibly have furnished her any provocation for her conduct. she had then been removed from the court-room more than an hour. besides, if they "smirched" her character, why did she submit to them complacently when they were originally uttered from the bench by judge sullivan in his opinion rendered in her favor? justice field, in what he was reading that so incensed mrs. terry, was simply stating the effect of a decree previously rendered in a case, in the trial of which he had taken no part. he was stating the law as to the rights established by that decree. the efforts then made by terry, and subsequently by his friends and counsel, to make it appear that his assault upon the marshal and defiance of the court were caused by his righteous indignation at assaults made by judge field upon his wife's character were puerile, because based on a falsehood. the best proof of this is the opinion itself. judge terry next applied to the supreme court of the united states for a writ of habeas corpus. in that application he declared that on the th day of september, , he addressed to the circuit court a petition duly verified by his oath, and then stated the petition for release above quoted. yet in a communication published in the _san francisco examiner_ of october d he solemnly declared that this very petition was not filed by any one on his behalf. after full argument by the supreme court the writ was denied, november , , by an unanimous court, justice field, of course, not sitting in the case. justice harlan delivered the opinion of the court. chapter x. president cleveland refuses to pardon terry--false statements of terry refuted. before the petition for habeas corpus was presented to the supreme court of the united states, judge terry's friends made a strenuous effort to secure his pardon from president cleveland. the president declined to interfere. in his efforts in that direction judge terry made gross misrepresentations as to judge field's relations with himself, which were fully refuted by judge heydenfeldt, the very witness he had invoked. judge heydenfeldt had been an associate of judge terry on the state supreme bench. these representations and their refutation are here given as a necessary element in this narrative. five days after he had been imprisoned, to wit, september , terry wrote a letter to his friend zachariah montgomery at washington, then assistant attorney-general for the interior department under the cleveland administration, in which he asked his aid to obtain a pardon from the president. knowing that it would be useless to ask this upon the record of his conduct as shown by the order for his commitment, he resorted to the desperate expedient of endeavoring to overcome that record by putting his own oath to a false statement of the facts, against the statement of the three judges, made on their own knowledge, as eye-witnesses, and supported by the affidavits of court officers, lawyers, and spectators. to montgomery he wrote: "i have made a plain statement of the facts which occurred in the court, and upon that propose to ask the intervention of the president, and i request you to see the president; tell him all you know of me, and what degree of credit should be given to a statement by me upon my own knowledge of the facts. when you read the statement i have made you will be satisfied that the statement in the order of the court is false." he then proceeded to tell his story as he told it in his petition to the circuit court. his false representations as to the assault he made upon the marshal, and as to his alleged provocation therefor, were puerile in the extreme. he stood alone in his declaration that the marshal first assaulted him, while the three judges and a dozen witnesses declared the very opposite. his denial that he had assaulted the marshal with a deadly weapon was contradicted by the judges and others, who said that they saw him attempt to draw a knife in the court-room, which attempt, followed up as it was continually until successful, constituted an assault with that weapon. to call his bowie-knife "a small sheath-knife," and the outrageous conduct of his wife "acts of indiscretion;" to pretend that he lost his temper because he was assaulted "while making an honest effort to peaceably and quietly enforce the order of the court," and finally to pretend that his wife had been "unnecessarily assaulted" in his presence, was all not only false, but simply absurd and ridiculous. he said: "i don't want to stay in prison six months for an offense of which i am not guilty. there is no way left except to appeal to the president. the record of a court imports absolute verity, so i am not allowed to show that the record of the circuit court is absolutely false. if you can help me in this matter you will confer on me the greatest possible favor." he told montgomery that it had been suggested to him that one reason for field's conduct was his refusal to support the latter's aspirations for the presidency. in this connection he made the following statement: "in march, , i received a note from my friend judge heydenfeldt, saying that he wished to see me on important business, and asking me to call at his office. i did so, and he informed me that he had received a letter from judge field, who was confident that if he could get the vote of california in the democratic national convention, which would assemble that year, he would be nominated for president and would be elected as, with the influence of his family and their connection, that he would certainly carry new york; that judge field further said that a congressman from california and other of his friends had said that if i would aid him, i could give him the california delegation; that he understood i wanted official recognition as, because of my duel years ago, i was under a cloud; that if i would aid him, i should have anything i desired." it will be observed that he here positively states that judge heydenfeldt told him he had received a letter from judge field, asking terry's aid and promising, for it, a reward. judge heydenfeldt, in a letter dated august , , to the _san francisco examiner_, branded terry's assertion as false. the letter to the _examiner_ is as follows: "the statement made in to-day's _examiner_ in reference to the alleged letter from justice field to me, derived, as is stated by mr. ashe, from a conversation with judge terry, is utterly devoid of truth. "i had at one time, many years ago, a letter from justice field, in which he stated that he was going to devote his leisure to preparing for circulation among his friends his reminiscences, and, referring to those of early california times, he requested me to obtain from judge terry his, terry's, version of the terry-broderick duel, in order that his account of it might be accurate. as soon as i received this letter, i wrote to judge terry, informing him of judge field's wishes, and recommending him to comply, as coming, as the account would, from friendly hands, it would put him correct upon the record, and would be in a form which would endure as long as necessary for his reputation on that subject. "i received no answer from judge terry, but meeting him, some weeks after, on the street in this city, he excused himself, saying that he had been very busy, and adding that it was unnecessary for him to furnish a version of the duel, as the published and accepted version was correct. "the letter to me from justice field above referred to is the only letter from justice field to me in which judge terry's name was ever mentioned, and, with the exception of the above-mentioned street conversation, judge field was never the subject of conversation between judge terry and myself, from the time i left the bench, on the st of january, , up to the time of terry's death. "as to the statement that during terry's trouble with the sharon case, i offered terry the use of field's letter, it results from what i have above stated--that it is a vile falsehood, whoever may be responsible for it. "i had no such letter, and consequently could have made no such offer. "san francisco, august , . "s. heydenfeldt." judge heydenfeldt subsequently addressed the following letter to judge field: "san francisco, _august , _. "my dear judge: i received yours of yesterday with the extract from the washington _post_ of the d inst., containing a copy of a letter from the late judge terry to the hon. zack montgomery. "the statement in that letter of a conversation between terry and myself in reference to you is untrue. the only conversation terry and i ever had in relation to you was, as heretofore stated, in regard to a request from you to me to get from terry his version of the terry-broderick duel, to be used in your intended reminiscences. "i do not see how terry could have made such an erroneous statement, unless, possibly, he deemed that application as an advance made by you towards obtaining his political friendship, and upon that built up a theory, which he moulded into the fancy written by him in the montgomery letter. "in all of our correspondence, kept up from time to time since your first removal to washington down to the present, no letter of yours contained a request to obtain the political support of any one. "i remain, dear judge, very truly yours, "s. heydenfeldt. "hon. stephen j. field, "palace hotel, san francisco." at the hearing of the neagle case, justice field was asked if he had been informed of any statements made by judge terry of ill feeling existing between them before the latter's imprisonment for contempt. he replied: "yes, sir. since that time i have seen a letter purporting to come from terry to zack montgomery, published in washington, in which he ascribed my action to personal hostility, because he had not supported me in some political aspiration. there is not one particle of truth in that statement. it is a pure invention. in support of his statement he referred to a letter received or an interview had with judge heydenfeldt. there is not the slightest foundation for it, and i cannot understand it, except that the man seems to me to have been all changed in the last few years, and he did not hesitate to assert that the official actions of others were governed by improper considerations. i saw charges made by him against judges of the state courts; that they had been corrupt in their decisions against him; that they had been bought. that was the common assertion made by him when decisions were rendered against him." he then referred to the above letters of judge heydenfeldt, declaring terry's assertion to be false. it should be borne in mind that terry's letter to montgomery was written september th. it directly contradicts what he had said to ex-congressman wigginton on the th or th of the same month. to that gentleman he declared that he knew of no "old grudge or little difference" between himself and judge field. he said he had declined to support the latter for the presidency, and added: "that may have caused some alienation, but i do not know that judge field knew that." in his insane rage terry did not realize how absurd it was to expect people to believe that judge sawyer and judge sabin, both republicans, had participated in putting him in jail, to punish him for not having supported justice field for the presidency in a national democratic convention years before. perhaps terry thought his reference to the fact that judge field's name had been previously used in democratic conventions, in connection with the presidency, might have some effect upon president cleveland's mind. this letter was not forwarded to zachariah montgomery until a week after it was written. he then stated in a postscript that he had delayed sending it upon the advice of his attorneys pending the application to the circuit court for his release. again he charged that the judges had made a false record against him, and that evidence would be presented to the president to show it. terry and his friends brought all the pressure to bear that they could command, but the president refused his petition for a pardon, and, as already shown, the supreme court unanimously decided that his imprisonment for contempt had been lawfully ordered. he was therefore obliged to serve out his time. mrs. terry served her thirty days in jail, and was released on the d of october. there is a federal statute that provides for the reduction of a term of imprisonment of criminals for good behavior. judge terry sought to have this statute applied in his case, but without success. the circuit court held that the law relates to state penitentiaries, and not to jails, and that the system of credits could not be applied to prisoners in jail. besides this, the credits in any case are counted by the year, and not by days or months. the law specifies that prisoners in state prisons are entitled to so many months' time for the first year, and so many for each subsequent year. as terry's sentence ran for six months, the court said the law could not apply. he consequently remained in jail until the d of march, . chapter xi. terry's continued threats to kill justice field--return of the latter to california in . justice field left california for washington in september, , a few days after the denial of terry's petition to the circuit court for a release. the threats against his life and that of judge sawyer so boldly made by the terrys were as well known as the newspaper press could make them. in addition to this source of information, reports came from many other directions, telling of the rage of the terrys and their murderous intentions. from october, , till his departure for california, in june following, , his mail almost every day contained reports of what they were saying, and the warnings and entreaties of his friends against his return to that state. these threats came to the knowledge of the attorney-general of the united states, who gave directions to the marshal of the northern district of california to see to it that justice field and judge sawyer should be protected from personal violence at the hands of these parties. justice field made but one answer to all who advised against his going to hold court in california in , and that was, "i cannot and will not allow threats of personal violence to deter me from the regular performance of my judicial duties at the times and places fixed by law. as a judge of the highest court of the country, i should be ashamed to look any man in the face if i allowed a ruffian, by threats against my person, to keep me from holding the regular courts in my circuit." terry's murderous intentions became a matter of public notoriety, and members of congress and senators from the pacific coast, in interviews with the attorney-general, confirmed the information derived by him from other sources of the peril to which the united states judges in california were subjected. he, in consequence, addressed the following letter on the subject to marshal franks: "department of justice, "washington, _april , _. "john c. franks, "_united states marshal, san francisco, cal._ "sir: the proceedings which have heretofore been had in the case of mr. and mrs. terry in your united states circuit court have become matter of public notoriety, and i deem it my duty to call your attention to the propriety of exercising unusual precaution, in case further proceedings shall be had in that case, for the protection of his honor justice field, or whoever may be called upon to hear and determine the matter. of course, i do not know what may be the feelings or purpose of mr. and mrs. terry in the premises, but many things which have happened indicate that violence on their part is not impossible. it is due to the dignity and independence of the court and the character of its judges that no effort on the part of the government shall be spared to make them feel entirely safe and free from anxiety in the discharge of their high duties. "you will understand, of course, that this letter is not for the public, but to put you upon your guard. it will be proper for you to show it to the district attorney if deemed best. "yours truly, "w.h.h. miller, "_attorney-general_." a month later the attorney-general authorized the employment of special deputies for the purpose named in the foregoing letter. chapter xii. further proceedings in the state court.--judge sullivan's decision reversed. mrs. terry did not wait for the release of her husband from jail before renewing the battle. on the d of january, , she gave notice of a motion in the superior court for the appointment of a receiver who should take charge of the sharon estate, which she alleged was being squandered to the injury of her interest therein acquired under the judgment of judge sullivan. on the th of january an injunction was issued by the united states circuit court commanding her and all others to desist from this proceeding. the terrys seemed to feel confident that this would bring on a final trial of strength between the federal and state courts, and that the state court would prevail in enforcing its judgment and orders. the motion for a receiver was submitted after full argument, and on the d of june following judge sullivan rendered a decision asserting the jurisdiction of his court to entertain the motion for a receiver, and declaring the decree of the united states circuit court inoperative. in his opinion judge sullivan reviewed the opinion of justice field in the revivor suit, taking issue therewith. as that decision had been affirmed by the supreme court of the united states nearly a month before, to wit, on the th of may, , it was rather late for such a discussion. having thus decided, however, that the motion for a receiver could be made, he set the hearing of the same for july , . on the th of may, one week before the rendering of this decision by judge sullivan, the mandate of the united states supreme court had been filed in the circuit court at san francisco, by which the decree of that court was affirmed. whether a receiver would be appointed by judge sullivan, in the face of the decision of the supreme court of the united states, became now an interesting question. terry and his lawyers affected to hold in contempt the supreme court decree, and seemed to think no serious attempt would be made to enforce it. meantime, both of the terrys had been indicted in the united states circuit court for the several offenses committed by them in assaulting the marshal in the court-room as hereinbefore described. these indictments were filed on the th of september. dilatory motions were granted from time to time, and it was not until the th of june that demurrers to the indictments were filed. the summer vacation followed without any argument of these demurrers. it was during this vacation that justice field arrived in california, on the th of june. the situation then existing was as follows: the criminal proceedings against the terrys were at a standstill, having been allowed to drag along for nine months, with no further progress than the filing of demurrers to the indictments. the appeal to the supreme court of the state from judge sullivan's order denying a new trial had been argued and submitted on the th of may, but no decision had been rendered. despite the pendency of that appeal, by reason of which the judgment of the supreme court of the state had not yet become final, and despite the mandate of the united states supreme court affirming the decree in the revivor case, judge sullivan had, as we have already seen, set the th of july for the hearing of the motion of the terrys for the appointment of a receiver to take charge of the sharon estate. for them to proceed with this motion would be a contempt of the united states circuit court. the arrival of justice field should have instructed judge terry that the decree of that court could not be defied with impunity, and that the injunction issued in it against further proceedings upon the judgment in the state court would be enforced with all the power authorized by the constitution and laws of the united states for the enforcement of judicial process. as the th of july approached, the lawyers who had been associated with terry commenced discussing among themselves what would be the probable consequence to them of disobeying an injunction of the united states circuit court. the attorneys for the sharon estate made known their determination to apply to that court for the enforcement of its writ in their behalf. the terrys' experience in resisting the authority of that court served as a warning for their attorneys. on the morning of the th of july judge terry and his wife appeared, as usual, in the superior court room. two of their lawyers came in, remained a few minutes and retired. judge terry himself remained silent. his wife arose and addressed the court, saying that her lawyers were afraid to appear for her. she said they feared if they should make a motion in her behalf, for the appointment of a receiver, judge field would put them in jail; therefore, she said, she appeared for herself. she said if she got in jail she would rather have her husband outside, and this was why she made the motion herself, while he remained a spectator. the hearing was postponed for several days. before the appointed day therefor, the supreme court of the state, on the th of july, rendered its decision, reversing the order of judge sullivan refusing a new trial, thereby obliterating the judgment in favor of sarah althea, and the previous decision of the appellate court affirming it. the court held that this previous judgment had not become the law of the case pending the appeal from the order denying a new trial. it held that where two appeals are taken in the same case, one from the judgment and the other from the order denying a new trial, the whole case must be held to be under the control of the supreme court until the whole is disposed of, and the case remanded for further proceedings in the court below. the court reversed its previous decision, and declared that if the statements made by sarah althea and by her witnesses had been true, she never had been the wife of william sharon, for the reason that, after the date of the alleged contract of marriage, the parties held themselves out to the public as single and unmarried people, and that even according to the findings of fact by judge sullivan the parties had not assumed marital rights, duties, and obligations. the case was therefore remanded to the superior court for a new trial. on the d of august the demurrers to the several indictments against the terrys came up to be heard in the united states district court. the argument upon them concluded on the th. on the th the demurrer to one of the indictments against sarah althea was overruled and she entered a plea of not guilty. no decision was rendered at that time upon either of the five other indictments. on the following day, august th, justice field left san francisco and went to los angeles for the purpose of holding court. chapter xiii. attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. in view of what was so soon to occur, it is important to understand the condition of mind into which judge terry and his wife had now wrought themselves. they had been married about two years and a half. in their desperate struggle for a share of a rich man's estate they had made themselves the terror of the community. armed at all times and ready for mortal combat with whoever opposed their claims, they seemed, up to the th of july, to have won their way in the state courts by intimidation. the decision of the united states circuit court was rendered before they were married. it proclaimed the pretended marriage agreement a forgery, and ordered it to be delivered to the clerk of the court for cancellation. terry's marriage with sarah althea, twelve days after this, was a declaration of intention to resist its authority. the conduct of the pair in the circuit court on the d of september must have had some object. they may have thought to break up the session of the court for that day, and to so intimidate the judges that they would not carry out their purpose of rendering the decision; or they may have hoped that, if rendered, it would be allowed to slumber without any attempt to enforce it; or even that a rehearing might be granted, and a favorable decision forced from the court. it takes a brave man on the bench to stand firmly for his convictions in the face of such tactics as were adopted by the terrys. the scene was expected also to have its effect upon the minds of the judges of the supreme court of the state, who then were yet to pass finally upon sullivan's judgment on the appeal from the order denying a new trial. but the terrys had not looked sufficiently at the possible consequence of their actions. they had thus far gone unresisted. as district attorney carey wrote to the attorney-general: "they were unable to appreciate that an officer should perform his official duty when that duty in any way requires that his efforts be directed against them." when, therefore, justice field directed the removal of mrs. terry from the court, and when her doughty defendant and champion, confident of being able to defeat the order, found himself vanquished in the encounter, disarmed, arrested, and finally imprisoned, his rage was boundless. he had found a tribunal which cared nothing for his threats, and was able to overcome his violence. a court that would put him in the alameda jail for six months for resisting its order would enforce all its decrees with equal certainty. from the time of the terrys' incarceration in the alameda county jail their threats against justice field became a matter of such notoriety that the drift of discussion was not so much whether they would murder the justice, as to when and under what circumstances they would be likely to do so. there is little doubt that terry made many threats for the express purpose of having them reach the knowledge of judge field at washington, in the hope and belief that they would deter him from going to california. he probably thought that the judge would prefer to avoid a violent conflict, and that if his absence could be assured it might result in allowing the decree of the united states circuit court to remain a dead letter. he told many people that justice field would not dare come out to the pacific coast. he got the idea into his mind, or pretended to, that justice field had put him in jail in order to be able to leave for washington before a meeting could be had with him. terry would of course have preferred field's absence and a successful execution of sullivan's judgment to his presence in the state and the enforcement of the federal decree. when the announcement was made that justice field had left washington for san francisco, public and private discussions were actively engaged in, as to where he would be likely to encounter danger. a special deputy was sent by the marshal to meet the overland train on which he was travelling, at reno, in nevada. the methods of mrs. terry defied all calculations. she was as likely to make her appearance, with her burly husband as an escort, at the state line, as she finally did at the breakfast table at lathrop. justice field reached his quarters in san francisco on the th of june. from that day until the th of august public discussion of what the terrys would do continued. some of the newspapers seemed bent upon provoking a conflict, and inquired with devilish mischief when terry was going to carry out his threatened purpose. the threats of the terrys and the rumors of their intended assault upon justice field were reported to him and he was advised to go armed against such assault, which would be aimed against his life. he answered: "no, sir! i will not carry arms, for when it is known that the judges of our courts are compelled to arm themselves against assaults in consequence of their judicial action it will be time to dissolve the courts, consider government a failure, and let society lapse into barbarism." as the time approached for the hearing of the motion for a receiver before judge sullivan, july th, grave apprehensions were entertained of serious trouble. great impatience was expressed with the supreme court of the state for not rendering its decision upon the appeal from the order denying a new trial. it was hoped that the previous decision might be reversed, and a conflict between the two jurisdictions thus avoided. when the decision came, on the th of july, there seemed to be some relaxation of the great tension in the public mind. with the supreme court of the state, as well as the supreme court of the united states, squarely on the record against mrs. terry's pretensions to have been the wife of william sharon, it was hoped that the long war had ended. when justice field left san francisco for los angeles he had no apprehensions of danger, and strenuously objected to being accompanied by the deputy marshal. some of his friends were less confident. they realized better than he did the bitterness that dwelt in the hearts of terry and his wife, intensified as it was by the realization of the dismal fact that their last hope had expired with the decision of the supreme court of the state. the marshal was impressed with the danger that would attend justice field's journey to and from the court at los angeles. he went from san francisco on the th of august. after holding court in los angeles he took the train for san francisco august th, the deputy marshal occupying a section in the sleeping car directly opposite to his. judge terry and his wife left san francisco for their home in fresno the day following justice field's departure for los angeles. fresno is a station on the southern pacific between los angeles and san francisco. his train left los angeles for san francisco at : tuesday afternoon, august th. the deputy marshal got out at all the stations at which any stop was made for any length of time, to observe who got on board. before retiring he asked the porter of the car to be sure and wake him in time for him to get dressed before they reached fresno. at fresno, where they arrived during the night, he got off the train and went out on the platform. among the passengers who took the train at that station were judge terry and wife. he immediately returned to the sleeper and informed justice field, who had been awakened by the stopping of the train, that terry and his wife had got on the train. he replied: "very well. i hope that they will have a good sleep." neagle slept no more that night. the train reached merced, an intervening station between fresno and lathrop, at : that morning. neagle there conferred with the conductor, on the platform, and referred to the threats so often made by the terrys. he told him that justice field was on the train, and that he was accompanying him. he requested him to telegraph to lathrop, to the constable usually in attendance there, to be at hand, and that if any trouble occurred he would assist in preventing violence. justice field got up before the train reached lathrop, and told the deputy marshal that he was going to take his breakfast in the dining-room at that place. the following is his statement of what took place: "he said to me, 'judge, you can get a good breakfast at the buffet on board.' i did not think at the time what he was driving at, though i am now satisfied that he wanted me to take breakfast on the car and not get off. i said i prefer to have my breakfast at this station. i think i said i had come down from the yosemite valley a few days before, and got a good breakfast there, and was going there for that purpose. "he replied: 'i will go with you.' we were among the first to get off from the train." as soon as the train arrived, justice field, leaning on the arm of neagle, because of his lameness, proceeded to the dining-room, where they took seats for breakfast. there were in this dining-room fifteen tables, each one of which was ten feet long and four feet wide. they were arranged in three rows of five each, the tables running lengthwise with each other, with spaces between them of four feet. the aisles between the two rows were about seven feet apart, the rows running north and south. justice field and neagle were seated on the west side of the middle table in the middle row, the justice being nearer the lower corner of the table, and neagle at his left. very soon after--justice field says "a few minutes," while neagle says "it may be a minute or so"--judge terry and his wife entered the dining-room from the east. they walked up the aisle, between the east and middle rows of tables, so that justice field and neagle were faced towards them. judge terry preceded his wife. justice field saw them and called neagle's attention to them. he had already seen them. as soon as mrs. terry had reached a point nearly in front of justice field, she turned suddenly around, and scowling viciously, went in great haste out of the door at which she had come in. this was for the purpose, as it afterwards appeared, of getting her satchel with the pistol in it, which she had left in the car. judge terry apparently paid no attention to this movement, but proceeded to the next table above and seated himself at the upper end of it, facing the table at which justice field was seated. thus there were between the two men as they sat at the tables a distance equal to two table-lengths and one space of four feet, making about twenty-four feet. terry had been seated but a very short time--justice field thought it a moment or two, neagle thought it three or four minutes--when he arose and moved down towards the door, this time walking through the aisle _behind_ justice field, instead of the one in front of him as before. justice field supposed, when he arose, that he was going out to meet his wife, as she had not returned, and went on with his breakfast; but when terry had reached a point behind him, and a little to the right, within two or three feet of him, he halted. justice field was not aware of this, nor did he know that terry had stopped, until he was struck by him a violent blow in the face from behind, followed instantaneously by another blow at the back of his head. neagle had seen terry stop and turn. between this and terry's assault there was a pause of four or five seconds. instantaneously upon terry's dealing a blow, neagle leaped from his chair and interposed his diminutive form between justice field and the enraged and powerful man, who now sought to execute his long-announced and murderous purpose. terry gave justice field no warning of his presence except a blow from behind with his right hand. as neagle rose, he shouted: "stop, stop, i am an officer." judge terry had drawn back his right arm for a third blow at justice field, and with clinched fist was about to strike, when his attention was thus arrested by neagle, and looking at him he evidently recognized in him the man who had drawn the knife from his hand in the corridor before the marshal's office on the third of september of the preceding year, while he was attempting to cut his way into the marshal's office. neagle put his right hand up as he ordered terry to stop, when terry carried his right hand at once to his breast, evidently to seize the knife which he had told the alameda county jailer he "always carried." says neagle: "this hand came right to his breast. it went a good deal quicker than i can explain it. he continued looking at me in a desperate manner and his hand got there." the expression of terry's face at that time was described by neagle in these words: "the most desperate expression that i ever saw on a man's face, and i have seen a good many in my time. it meant life or death to me or him." having thus for a moment diverted the blow aimed at justice field and engaged terry himself, neagle did not wait to be butchered with the latter's ready knife, which he was now attempting to draw, but raised his six-shooter with his left hand (he is left-handed) and holding the barrel of it with his right hand, to prevent the pistol from being knocked out of his hands, he shot twice; the first shot into terry's body and the second at his head. terry immediately commenced sinking very slowly. knowing by experience that men mortally wounded have been often known to kill those with whom they were engaged in such an encounter, neagle fired the second shot to defend himself and justice field against such a possibility. the following is an extract from justice field's testimony, commencing at the point where judge terry rose from his seat at the breakfast table: "i supposed, at the time, he was going out to meet his wife, as she had not returned, so i went on with my breakfast. it seems, however, that he came around back of me. i did not see him, and he struck me a violent blow in the face, followed instantaneously by another blow. coming so immediately together, the two blows seemed like one assault. i heard 'stop, stop,' cried by neagle. of course i was for a moment dazed by the blows. i turned my head around and saw that great form of terry's with his arm raised and fist clinched to strike me. i felt that a terrific blow was coming, and his arm was descending in a curved way as though to strike the side of my temple, when i heard neagle cry out: 'stop, stop, i am an officer.' instantly two shots followed. i can only explain the second shot from the fact that he did not fall instantly. i did not get up from my seat, although it is proper for me to say that a friend of mine thinks i did, but i did not. i looked around and saw terry on the floor. i looked at him and saw that particular movement of the eyes that indicates the presence of death. of course it was a great shock to me. it is impossible for any one to see a man in the full vigor of life, with all those faculties that constitute life instantly extinguished without being affected, and i was. i looked at him for a moment, then went around and looked at him again, and passed on. great excitement followed. a gentleman came to me, whom i did not know, but i think it was mr. lidgerwood, who has been examined as a witness in this case, and said: 'what is this?' i said: 'i am a justice of the supreme court of the united states. my name is judge field. judge terry threatened my life and attacked me, and the deputy marshal has shot him.' the deputy marshal was perfectly cool and collected, and stated: 'i am a deputy marshal, and i have shot him to protect the life of judge field.' i cannot give you the exact words, but i give them to you as near as i can remember them. a few moments afterwards the deputy marshal said to me: 'judge, i think you had better go to the car.' i said, 'very well.' then this gentleman, mr. lidgerwood, said: 'i think you had better.' and with the two i went to the car. i asked mr. lidgerwood to go back and get my hat and cane, which he did. the marshal went with me, remained some time, and then left his seat in the car, and, as i thought, went back to the dining-room. (this is, however, i am told, a mistake, and that he only went to the end of the car.) he returned, and either he or some one else stated that there was great excitement; that mrs. terry was calling for some violent proceedings. i must say here that, dreadful as it is to take life, it was only a question of seconds whether my life or judge terry's life should be taken. i am firmly convinced that had the marshal delayed two seconds both he and myself would have been the victims of terry. "in answer to a question whether he had a pistol or other weapon on the occasion of the homicide, justice field replied: 'no, sir. i have never had on my person or used a weapon since i went on the bench of the supreme court of this state, on the th of october, , except once, when, years ago, i rode over the sierra nevada mountains in a buggy with general hutchinson, and at that time i took a pistol with me for protection in the mountains. with that exception, i have not had on my person, or used, any pistol or other deadly weapon.'" judge terry had fallen very near the place where he first stopped, near the seat occupied by justice field at the table. neagle testified that if justice field had had a weapon, and been active in using it, he was at such a disadvantage, seated as he was, with terry standing over him, that he would have been unable to raise his hand in his own defense. a large number of witnesses were examined, all of whom agreed upon the main facts as above stated. some of them distinctly heard the blows administered by terry upon justice field's face and head. all testified to the loud warning given terry by neagle that he was an officer of the law, accompanied by his command that terry should desist. it was all the work of a few seconds. terry's sudden attack, the quick progress of which, from the first blow, was neither arrested nor slackened until he was disabled by the bullet from neagle's pistol, could have been dealt with in no other way. it was evidently a question of the instant whether terry's knife or neagle's pistol should prevail. says neagle: "he never took his eyes off me after he looked at me, or i mine off him. i did not hear him say anything. the only thing was he looked like an infuriated giant to me. i believed if i waited two seconds i should have been cut to pieces. i was within four feet of him." q. "what did the motion that judge terry made with his right hand indicate to you?" a. "that he would have had that knife out there within another second and a half, and trying to cut my head off." terry, in action at such a time, from all accounts, was more like an enraged wild animal than a human being. the supreme moment had arrived to which he had been looking forward for nearly a year, when the life of the man he hated was in his hands. he had repeatedly sworn to take it. not privately had he made these threats. with an insolence and an audacity born of lawlessness and of a belief that he could hew his way with a bowie-knife in courts as well as on the streets, he had publicly sentenced judge field to death as a penalty for vindicating the majesty of the law in his imprisonment for contempt. it would have been the wildest folly that can be conceived of for the murderous assault of such a man to have been met with mild persuasion, or an attempt to arrest him. as well order a hungry tiger to desist from springing at his prey, to sheathe his outstretched claws and suffer himself to be bound, as to have met terry with anything less than the force to which he was himself appealing. every man who knows anything of the mode of life and of quarrelling and fighting among the men of terry's class knows full well that when they strike a blow they mean to follow it up to the death, and they mean to take no chances. the only way to prevent the execution of terry's revengeful and openly avowed purpose was by killing him on the spot. only a lunatic or an imbecile or an accomplice would have pursued any other course in neagle's place than the one he pursued, always supposing he had neagle's nerve and cool self-possession to guide him in such a crisis. while this tragedy was being enacted mrs. terry was absent, having returned to the car for the satchel containing her pistol. before she returned, the shot had been fired that defeated the conspiracy between her and her husband against the life of a judge for the performance of his official duties. she returned to the hotel with her satchel in her hand just as her husband met his death. the manager of the hotel stopped her at the door she was entering, and seized her satchel. she did not relinquish it, but both struggled for its possession. a witness testified that she screamed out while so struggling: "let me get at it; i will fix him." many witnesses testified to her frantic endeavor to get the pistol. she called upon the crowd to hang the man that killed judge terry, and cried out, "lynch judge field." again and again she made frantic appeals to those present to lynch judge field. she tried to enter the car where he was, but was not permitted to do so. she cried out, "if i had my pistol i would fix him." the testimony subsequently taken left no room to doubt that terry had his deadly knife in its place in his breast at the time he made the attack on justice field. as the crowd were all engaged in breakfasting, his movements attracted little attention, and his motion toward his breast for the knife escaped the notice of all but neagle and one other witness. neagle rushed between terry and justice field, and the latter had not a complete view of his assailant at the moment when the blow intended for him was changed into a movement for the knife with which judge terry intended to dispose of the alert little man, with whom he had had a former experience, and who now stood between him and the object of his greater wrath. but the conduct of mrs. terry immediately after the homicide was proof enough that her husband's knife had been in readiness. the conductor of the train swore that he saw her lying over the body of her husband about a minute, and when she rose up she unbuttoned his vest and said: "you may search him; he has got no weapon on him." not a word had been said about his having had a weapon. no one had made a movement towards searching him, as ought to have been done; but this woman, who had been to the car for her pistol and returned with it to join, if necessary, in the murderous work, had all the time and opportunity necessary for taking the knife from its resting-place under his vest, smearing one of her hands with his blood, which plainly showed where it had been and what she had been doing. neagle could not search the body, for his whole attention was directed to the protection of justice field. mrs. terry repeated the challenge to search the body for the knife after it had been removed. this showed clearly that the idea uppermost in her mind was to then and there manufacture testimony that he had not been armed at all. her eagerness on this subject betrayed her. had she herself then been searched, after rising from terry's body, the knife would doubtless have been found concealed upon her person. a number of witnesses testified to her conduct as above described. she said also: "you will find that he has no arms, for i took them from him in the car, and i said to him that i did not want him to shoot justice field, but i did not object to a fist bout." this reference to a fist bout was, of course, an admission that they had premeditated the assault. it was judge terry's knife and not a pistol that judge field had to fear. terry's threats had always pointed to some gross indignity that he would put upon justice field, and then kill him if he resented or resisted it. one of his threats was that he would horsewhip judge field, and that if he resented it he would kill him. in short, his intentions seem to have been to commit an assassination in alleged self-defense. the train soon left the station for san francisco. a constable of lathrop had taken the train, and addressing neagle told him that he would have to arrest him. this officer had no warrant and did not himself witness the homicide. justice field told him that he ought to have a warrant before making the arrest, remarking, if a man should shoot another when he was about to commit a felony, such as setting fire to your house, you would not arrest him for a murder; or if a highwayman got on the train to plunder. the officer replied very courteously by the suggestion that there would have to be an inquest. neagle at once said, "i am ready to go," thinking it better to avoid all controversy, and being perfectly willing to answer anywhere for what he had done. arriving at the next station (tracy), neagle and the officer took a buggy and went to the county jail at stockton. thus was a deputy marshal of the united states withdrawn from the service of his government while engaged in a most important and as yet unfinished duty because he had with rigid faithfulness performed that duty. he was arrested by an officer who had no warrant and had not witnessed the homicide, and lodged in jail. meanwhile a detective in san francisco received a telegram from the sheriff of san joaquin county to arrest judge field. supposing it to be his duty to comply with this command, the detective crossed the bay to meet the train for that purpose. marshal franks said to him: "you shall not arrest him. you have no right to do so. it would be an outrage, and if you attempt it i will arrest you." the news of these exciting events produced an intense excitement in san francisco. upon his arrival at this place, under the escort of the marshal and many friends, justice field repaired to his quarters in the palace hotel. chapter xiv. sarah althea terry charges justice field and deputy marshal neagle with murder. the body of judge terry was taken from lathrop to stockton, accompanied by his wife, soon after his death. on that very evening sarah althea terry swore to a complaint before a justice of the peace named swain, charging justice field and deputy marshal neagle with murder. after the investigation before the coroner assistant district attorney gibson stated that the charge against justice field would be dismissed, as there was no evidence whatever to connect him with the killing. mrs. terry did not see the shooting and was not in the hotel at the time of the homicide. having, therefore, no knowledge upon which to base her statement, her affidavit was entitled to no greater consideration than if it had stated that it was made solely upon her belief without any positive information on the subject. only the most violent of terry's friends favored the wanton indignity upon justice field, and his arrest, but they had sufficient influence with the district attorney, mr. white, a young and inexperienced lawyer, to carry him along with them. the justice of the peace before whom sarah althea had laid the information issued a warrant on the following day for the arrest both of justice field and neagle. from this time this magistrate and the district attorney appeared to act under orders from mrs. terry. the preliminary examination was set for wednesday of the following week, during which time the district attorney stated for publication that justice field would have to go to jail and stay there during the six intervening days. it was obvious to all rational minds that mrs. terry's purpose was to use the machinery of the magistrate's court for the purpose of taking judge field to stockton, where she could execute her threats of killing him or having him killed; and if she should fail to do so, or postpone it, then to have the satisfaction of placing a justice of the supreme court of the united states in a prisoner's cell, and hold him there for six days awaiting an examination, that being the extreme length of time that he could be so held under the statute. the district attorney was asked if he had realized the danger of bringing justice field to stockton, where he might come in contact with mrs. terry. the officer replied: "we had intended that if justice field were brought here, mrs. terry would be placed under the care of _her friends_, and that all precautions to prevent any difficulty that was in the power of the district attorney would be taken." that was to say, mrs. terry would do no violence to justice field unless "her friends" permitted her to do so. as some of them were possessed of the same murderous feelings towards justice field as those named here, the whole transaction had the appearance of a conspiracy to murder him. no magistrate can lawfully issue a warrant without sufficient evidence before him to show probable cause. it was a gross abuse of power and an arbitrary and lawless act to heed the oath of this frenzied woman, who notoriously had not witnessed the shooting, and had, but a few hours before, angrily insisted upon having her own pistol returned to her that she, herself, might kill justice field. it was beyond belief that the magistrate believed that there was probable cause, or the slightest appearance of a cause, upon which to base the issue of the warrant. neagle was brought into court at stockton at o'clock on the morning after the shooting, to wit, on thursday, the th, and his preliminary examination set for wednesday, the st. bail could not be given prior to that examination. this examination could have proceeded at once, and a delay of six days can only be accounted for by attributing it to the malice and vindictiveness of the woman who seemed to be in charge of the proceedings. the keen disappointment of mrs. terry, and those who were under her influence, at judge terry's failure to murder justice field, must have been greatly soothed by the prospect of having yet another chance at the latter's life, and, in any event, of seeing him in a cell in the jail during the six days for which the examination could be delayed for that express purpose. the sheriff of san joaquin county proceeded to san francisco with the warrant for his arrest on thursday evening. in company with the chief of police and marshal franks, he called upon justice field, and after a few moments' conversation it was arranged that he should present the warrant at one o'clock on the following day, at the building in which the federal courts are held. chapter xv. justice field's arrest and petition fob release on habeas corpus. at the appointed hour justice field awaited the sheriff in his chambers, surrounded by friends, including judges, ex-judges, and members of the bar. as the sheriff entered justice field arose and pleasantly greeted him. the sheriff bore himself with dignity, and with a due sense of the extraordinary proceeding in which his duty as an officer required him to be a participant. with some agitation he said: "justice field, i presume you are aware of the nature of my errand." "yes," replied the justice, "proceed with your duty; i am ready. an officer should always do his duty." the sheriff stated to him that he had a warrant, duly executed and authenticated, and asked him if he should read it. "i will waive that, mr. sheriff," replied the justice. the sheriff then handed him the warrant, which he read, folded it up and handed it back, saying pleasantly: "i recognize your authority, sir, and submit to the arrest; i am, sir, in your custody." meanwhile a petition had been prepared to be presented to judge sawyer for a writ of _habeas corpus_, returnable at once before the united states court. as soon as the arrest was made the petition was signed and presented to judge sawyer, who ordered the writ to issue returnable forthwith. in a very few minutes u.s. marshal franks served the writ on the sheriff. while the proceedings looking to the issue of the writ were going on, justice field had seated himself, and invited the sheriff to be seated. the latter complied with the invitation, and began to say something in regard to the unpleasant duty which had devolved upon him, but justice field promptly replied: "not so, not so; you are but doing your plain duty, and i mine in submitting to arrest. it is the first duty of judges to obey the law." as soon as the _habeas corpus_ writ had been served, the sheriff said he was ready to go into the court. "let me walk with you," said justice field, as they arose, and took the sheriff's arm. in that way they entered the court-room. justice field seated himself in one of the chairs usually occupied by jurors. time was given to the sheriff to make a formal return to the writ; and in a few minutes he formally presented it. the petition of judge field for the writ set forth his official character, and the duties imposed upon him by law, and alleged that he had been illegally arrested, while he was in the discharge of those duties, and that his illegal detention interfered with and prevented him from discharging them. then followed a statement of the facts, showing the arrest and detention to be illegal. this statement embraced the principal facts connected with the contempt proceedings in , and the threats then and thereafter made by the terrys of violence upon justice field; the precautions taken in consequence thereof by the department of justice for his protection from violence at their hands, and the murderous assault made upon him, and his defense by deputy marshal neagle, resulting in the death of terry, and that he, the petitioner, in no manner defended or protected himself, and gave no directions to the deputy marshal, and that he was not armed with any weapon. the petition then states: "that under the circumstances detailed, the said sarah althea terry, as your petitioner is informed and believes, and upon such information and belief alleges, falsely and maliciously swore out the warrant of arrest hereinbefore set out against your petitioner, without any further basis for the charge of murder than the facts hereinbefore detailed, and that the warrant aforesaid was issued by such justice of the peace, without any just or probable cause therefor. * * * and your petitioner further represents that the charge against him, and the warrant of arrest in the hands of said sheriff, are founded upon the sole affidavit of mrs. sarah althea terry, who was not present and did not see the shooting which caused the death of said david s. terry." in order to show the little reliance to be placed in the oath of mrs. terry, the petition stated: "that in a suit brought by william sharon, now deceased, against her before her marriage to the said terry, it was proved and held by the circuit court of the united states that she had committed the forgery of the document produced in that case, and had attempted to support it by perjury and subornation of perjury, and had also been guilty of acts and conduct showing herself to be an abandoned woman, without veracity. * * * "your petitioner further represents that the abandoned character of the said sarah althea terry, and the fact that she was found guilty of perjury and forgery in the case above mentioned by the said circuit court, and the fact of the revengeful malice entertained toward your petitioner by said sarah althea terry, are notorious in the state of california, and are notorious in the city of stockton, and as your petitioner believes are well known to the district attorney of the said county of san joaquin, and also to the said justice of the peace who issued the said warrant; and your petitioner further alleges that had either of the said officers taken any pains whatever to ascertain the truth in the case, he would have ascertained and known that there was not the slightest pretext or foundation for any such charge as was made, and also that the affidavit of the said sarah althea terry was not entitled to the slightest consideration whatever. "your petitioner further states that it is to him incomprehensible how any man, acting in a consideration of duty, could have listened one moment to charges from such a source, and without having sought some confirmation from disinterested witnesses; and your petitioner believes and charges that the whole object of the proceeding is to subject your petitioner to the humiliation of arrest and confinement at stockton, where the said sarah althea terry may be able, by the aid of partisans of hers, to carry out her long-continued and repeated threats of personal violence upon your petitioner, and to prevent your petitioner from discharging the duties of his office in cases pending against her in the federal court at san francisco." the sheriff's return was as follows: "return of sheriff of san joaquin county, cala., county of san joaquin, state of california: "sheriff's office. "_to the honorable circuit court of the united states for the northern district of california:_ "i hereby certify and return that before the coming to me of the hereto-annexed writ of _habeas corpus_, the said stephen j. field was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of stockton township, state of california, county of san joaquin, and by the endorsement made upon said warrant. copy of said warrant and endorsement is annexed hereto, and made a part of this return. nevertheless, i have the body of the said stephen j. field before the honorable court, as i am in the said writ commanded. "august , . "thomas cunningham, "_sheriff, san joaquin co., california_." in order to give the petitioner time to traverse the return if he thought it expedient to do so, and to give him and the state time to produce witnesses, the further hearing upon the return was adjourned until the following thursday morning, the d, and the petitioner was released on his recognizance with a bond fixed at $ , . on the same day a petition on the part of neagle was presented to judge sawyer asking that a writ of _habeas corpus_ issue in his behalf to sheriff cunningham. the petition was granted at once, and served upon the sheriff immediately after the service of the writ issued on behalf of justice field. early on the morning of saturday, august , neagle was brought from stockton by the sheriff at : a.m. district attorney white and mrs. terry's lawyer, maguire, were duly notified of this movement and were passengers on the same train. at : sheriff cunningham appeared in the circuit court with neagle to respond to the writ. he returned that he held neagle in custody, under a warrant issued by a justice of the peace of that county, a copy of which he produced; and also a copy of the affidavit of sarah althea terry upon which the warrant was issued. a traverse to that return was then filed, presenting various grounds why the petitioner should not be held, the most important of which were that an officer of the united states, specially charged with a particular duty, that of protecting one of the justices of the supreme court of the united states whilst engaged in the performance of his duty, could not, for an act constituting the very performance of that duty, be taken from the further discharge of his duty and imprisoned by the state authorities, and that when an officer of the united states in the discharge of his duties is charged with an offense consisting in the performance of those duties, and is sought to be arrested, and taken from the further performance of them, he can be brought before the tribunals of the nation of which he is an officer, and the fact then inquired into. the attorney-general of the state appeared with the district attorney of san joaquin county, and contended that the offense of which the petitioner was charged could only be inquired into before the tribunals of the state. chapter xvi. judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. the funeral of judge terry occurred on friday, the th. an unsuccessful attempt was made for a public demonstration. the fear entertained by some that eulogies of an incendiary character would be delivered was not realized. the funeral passed off without excitement. the rector being absent, the funeral service was read by a vestryman of the church. on the day after judge terry's death the following proceedings occurred in the supreme court of the state: late in the afternoon, just after the counsel in a certain action had concluded their argument, and before the next cause on the calendar was called, james l. crittenden, esq., who was accompanied by w.t. baggett, esq., arose to address the court. he said: "your honors, it has become my painful and sad duty to formally announce to the court the death of a former chief justice"-- chief justice beatty: "mr. crittenden, i think that is a matter which should be postponed until the court has had a consultation about it." the court then, without leaving the bench, held a whispered consultation. mr. crittenden then went on to say: "i was doing this at the request of several friends of the deceased. it has been customary for the court to take formal action prior to the funeral. in this instance, i understand the funeral is to take place to-morrow." chief justice beatty: "mr. crittenden, the members of the court wish to consult with each other on this matter, and you had better postpone your motion of formal announcement until to-morrow morning." mr. crittenden and mr. baggett then withdrew from the court-room. on the following day, in the presence of a large assembly, including an unusually large attendance of attorneys, mr. crittenden renewed his motion. he said: "if the court please, i desire to renew the matter which i began to present last evening. as a friend--a personal friend--of the late judge terry, i should deem myself very cold, indeed, and very far from discharging the duty which is imposed upon that relation, if i did not present the matter which i propose to present to this bench this morning. i have known the gentleman to whom i have reference for over thirty years, and i desire simply now, in stating that i make this motion, to say that the friendship of so many years, and the acquaintance and intimacy existing between that gentleman and his family and myself for so long a period, require that i should at this time move this court, as a court, out of recollection for the memory of the man who presided in the supreme court of this state for so many years with honor, ability, character, and integrity, and, therefore, i ask this court, out of respect for his memory, to adjourn during the day on which he is to be buried, which is to-day." chief justice beatty said: "i regret very much that counsel should have persisted in making this formal announcement, after the intimation from the court. upon full consultation we thought it would be better that it should not be done. the circumstances of judge terry's death are notorious, and under these circumstances this court had determined that it would be better to pass this matter in silence, and not to take any action upon it; and that is the order of the court." the deceased had been a chief justice of the tribunal which, by its silence, thus emphasized its condemnation of the conduct by which he had placed himself without the pale of its respect. chapter xvii. habeas corpus proceedings in justice field's case. on thursday, august d, the hearing of the _habeas corpus_ case of justice field commenced in the united states circuit court, under orders from the attorney-general, to whom a report of the whole matter had been telegraphed. the united states district attorney appeared on behalf of justice field. in addition to him there also appeared as counsel for justice field, hon. richard t. mesick, saml. m. wilson, esq., and w.f. herrin, esq. the formal return of the writ of _habeas corpus_ had been made by the sheriff of san joaquin county on the th. to that return justice field presented a traverse, which was in the following language, and was signed and sworn to by him: "the petitioner, stephen j. field, traverses the return of the sheriff of san joaquin county, state of california, made by him to the writ of _habeas corpus_ by the circuit judge on the ninth circuit, and made returnable before the circuit court of said circuit, and avers: "that he is a justice of the supreme court of the united states, allotted to the ninth judicial circuit, and is now and has been for several weeks in california, in attendance upon the circuit court of said circuit in the discharge of his judicial duties; and, further, that the said warrant of the justice of the peace, h.v.j. swain, in stockton, california, issued on the th day of august, , under which the petitioner is held, was issued by said justice of the peace without reasonable or probable cause, upon the sole affidavit of one sarah althea terry, who did not see the commission of the act which she charges to have been a murder, and who is herself a woman of abandoned character, and utterly unworthy of belief respecting any matter whatever; and, further, that the said warrant was issued in the execution of a conspiracy, as your petitioner is informed, believes, and charges, between the said sarah althea terry and the district attorney, white, and the said justice of the peace, h.v.j. swain, and one e.l. colnon, of said stockton, to prevent by force and intimidation your petitioner from discharging the duties of his office hereafter, and to injure him in his person on account of the lawful discharge of the duties of his office heretofore, by taking him to stockton, where he could be subjected to indignities and humiliation, and where they might compass his death. "that the said conspiracy is a crime against the united states, under the laws thereof, and was to be executed by an abuse of the process of the state court, two of said conspirators being officers of the said county of san joaquin, one the district attorney and the other a justice of the peace, the one to direct and the other to issue the warrant upon which your petitioner could be arrested. "and the petitioner further avers that the issue of said writ of _habeas corpus_ and the discharge of your petitioner thereunder were and are essential to defeat the execution of the said conspiracy. "and your petitioner further avers that the accusation of crime against him, upon which said warrant was issued, is a malicious and malignant falsehood, for which there is not even a pretext; that he neither advised nor had any knowledge of the intention of any one to commit the act which resulted in the death of david s. terry, and that he has not carried or used any arm or weapon of any kind for nearly thirty years. "all of which your petitioner is ready to establish by full and competent proof. "wherefore your petitioner prays that he may be discharged from said arrest and set at liberty. "stephen j. field." the facts alleged in this document were beyond dispute, and constituted an outrageous crime, and one for which the conspirators were liable to imprisonment for a term of six years, under section of the revised statutes of the united states. to this traverse the counsel for the sheriff filed a demurrer, on the ground that it did not appear by it that justice field was in custody for an act done or omitted in pursuance of any law of the united states, or of any order or process or decree of any court or judge thereof, and it did not appear that he was in custody in violation of the constitution or any law or treaty of the united states. the case was thereupon submitted with leave to counsel to file briefs at any time before the th of august, to which time the further hearing was adjourned. before that hearing the governor of the state addressed the following communication to the attorney-general: "executive department, "state of california, "sacramento, _august , _. "hon. a.g. johnston, "_attorney-general, sacramento_. "dear sir: the arrest of hon. stephen j. field, a justice of the supreme court of the united states, on the unsupported oath of a woman who, on the very day the oath was taken, and often before, threatened his life, will be a burning disgrace to the state unless disavowed. i therefore urge upon you the propriety of at once instructing the district attorney of san joaquin county to dismiss the unwarranted proceedings against him. "the question of the jurisdiction of the state courts in the case of the deputy united states marshal, neagle, is one for argument. the unprecedented indignity on justice field does not admit of argument. "yours truly, "r.w. waterman, "_governor_." this letter of governor waterman rang out like an alarm bell, warning the chief law officer of the state that a subordinate of his was prostituting its judicial machinery to enable a base woman to put a gross indignity upon a justice of the supreme court of the united states, whom she had just publicly threatened to kill, and also to aid her in accomplishing that purpose. the wretched proceeding had already brought upon its authors indignant denunciation and merciless ridicule from every part of the union. the attorney-general responded to the call thus made upon him by instructing the district attorney to dismiss the charge against justice field, because no evidence existed to sustain it. the rash young district attorney lost no time in extricating himself from the position in which the arrest of justice field had placed him. on the th of august, upon his motion, and the filing of the attorney-general's letter, the charge against justice field was dismissed by the justice of the peace who had issued the warrant against him. the dismissal of this charge released him from the sheriff's claim to his custody, and the _habeas corpus_ proceedings in his behalf fell to the ground. on the th, the day appointed for the further hearing, the sheriff announced that in compliance with the order of the magistrate he released justice field from custody, whereupon the case of _habeas corpus_ was dismissed. in making the order, circuit judge sawyer severely animadverted on what he deemed the shameless proceeding at stockton. he said: "we are glad that the prosecution of mr. justice field has been dismissed, founded, as it was, upon the sole, reckless, and as to him manifestly false affidavit of one whose relation to the matters leading to the tragedy, and whose animosity towards the courts and judges who have found it their duty to decide against her, and especially towards mr. justice field, is a part of the judicial and notorious public history of the country. "it was, under the circumstances, and upon the sole affidavit produced, especially after the coroner's inquest, so far as mr. justice field is concerned, a shameless proceeding, and, as intimated by the governor of the commonwealth, if it had been further persevered in, would have been a lasting disgrace to the state. "while a justice of the supreme court of the united states, like every other citizen, is amenable to the laws, he is not likely to commit so grave an offense as murder, and should he be so unfortunate as to be unavoidably involved in any way in a homicide, he could not afford to escape, if it were in his power to do so; and when the act is so publicly performed by another, as in this instance, and is observed by so many witnesses, the officers of the law should certainly have taken some little pains to ascertain the facts before proceeding to arrest so distinguished a dignitary, and to attempt to incarcerate him in prisons with felons, or to put him in a position to be further disgraced, and perhaps assaulted by one so violent as to be publicly reported, not only then but on numerous previous occasions, to have threatened his life. "we are extremely gratified to find that, through the action of the chief magistrate, and the attorney-general, a higher officer of the law, we shall be spared the necessity of further inquiring as to the extent of the remedy afforded the distinguished petitioner, by the constitution and laws of the united states, or of enforcing such remedies as exist, and that the stigma cast upon the state of california by this hasty and, to call it by no harsher term, ill-advised arrest will not be intensified by further prosecution." thus ended this most remarkable attempt upon the liberty of a united states supreme court justice, under color of state authority, the execution of which would again have placed his life in great peril. the grotesque feature of the performance was aptly presented by the following imaginary dialogue which appeared in an eastern paper: newsboy: "man tried to kill a judge in california!" customer: "what was done about it?" newsboy: "oh! they arrested the judge." the illegality of justice field's arrest will be perfectly evident to whoever will read sections , , and of the penal code of california. these sections provide that no warrant can be issued by a magistrate until he has examined, on oath, the informant, taken depositions setting forth the facts tending to establish the commission of the offense and the guilt of the accused, and himself been satisfied by these depositions that there is reasonable ground that the person accused has committed the offense. none of these requirements had been met in justice field's case. it needs no lawyer to understand that a magistrate violates the plain letter as well as the spirit of these provisions of law when he issues a warrant without first having before him some evidence of the probable, or at least the possible, guilt of the accused. if this were otherwise, private malice could temporarily sit in judgment upon the object of its hatred, however blameless, and be rewarded for perjury by being allowed the use of our jails as places in which to satisfy its vengeance. such a view of the law made sarah althea the magistrate at stockton on the th of august, and justice swain her obsequious amanuensis. such a view of the law would enable any convict who had just served a term in the penitentiary to treat himself to the luxury of dragging to jail the judge who sentenced him, and keeping him there without bail as long as the magistrate acting for him could be induced to delay the examination. the arrest of justice field was an attempt to kidnap him for a foul purpose, and if the united states circuit judge had not released him he would have been the victim of as arbitrary and tyrannical treatment as is ever meted out in russia to the most dangerous of nihilists, to punish him for having narrowly escaped assassination by no act or effort of his own. chapter xviii. habeas corpus proceedings in neagle's case. this narrative would not be complete without a statement of the proceedings in the united states circuit court, and in the united states supreme court on appeal, in the _habeas corpus_ proceedings in the case of neagle, the deputy marshal, whose courageous devotion to his official duties had saved the life of justice field at the expense of that of his would-be assassin. we have already seen that neagle, being in the custody of the sheriff of san joaquin county, upon a charge of murder in the shooting of judge terry, had presented a petition to the united states circuit court for a writ of _habeas corpus_ to the end that he might thereby be restored to his liberty. a writ was issued, and upon its return, august th, the sheriff of san joaquin county produced neagle and a copy of the warrant under which he held him in custody, issued by the justice of the peace of that county, and also of the affidavit of sarah althea terry, upon which the warrant was granted. neagle being desirous of traversing the return of the sheriff, further proceedings were adjourned until the d of the month, and in the meantime he was placed in the custody of the united states marshal for the district. on the d a traverse of the return was filed by him stating the particulars of the homicide with which he was charged as narrated above, and averring that he was at the time of its commission a deputy marshal of the united states for the district, acting under the orders of his superior, and under the directions of the attorney-general of the united states in protecting the associate justice, whilst in the discharge of his duties, from the threatened assault and violence of terry, who had declared that on meeting the justice he would insult, assault, and kill him, and that the homicide with which the petitioner is charged was committed in resisting the attempted execution of these threats in the belief that terry intended at the time to kill the justice, and that but for such homicide he would have succeeded in his attempt. these particulars are stated with great fullness of detail. to this traverse, which was afterwards amended, but not in any material respect, a demurrer was interposed for the sheriff by the district attorney of san joaquin county. its material point was that it did not appear from the traverse that neagle was in the custody of the sheriff for an act done or omitted in pursuance of any law of the united states, or any order, process, or decree of any court or judge thereof, or in violation of the constitution or a treaty of the united states. the court then considered whether it should hear testimony as to the facts of the case, or proceed with the argument of the demurrer to the traverse. it decided to take the testimony, and to hear counsel when the whole case was before it, on the merits as well as on the question of jurisdiction. the testimony was then taken. it occupied several days, and brought out strongly the facts which have been already narrated, and need not here be repeated. when completed, the question of the jurisdiction of the circuit court of the united states to interfere in the matter was elaborately argued by the attorney-general of the state, and special counsel who appeared with the district attorney of san joaquin county on behalf of the state, they contending that the offense, with which the petitioner was charged, could only be inquired into before a tribunal of the state. mr. carey, united states district attorney, and messrs. herrin, mesick, and wilson, special counsel, appeared on behalf of the petitioner, and contended for the jurisdiction, and for the discharge of the petitioner upon the facts of the case. they did not pretend that any person in the state, be he high or low, might not be tried by the local authorities for a crime committed against the state, but they did contend that when the alleged crime consisted in an act which was claimed to have been done in the performance of a duty devolving upon him by a law of the united states, it was within the competency of their courts to inquire, in the first instance, whether that act thus done was in the performance of a duty devolving upon him; and if it was, that the alleged offender had not committed a crime against the state, and was entitled to be discharged. their arguments were marked by great ability and learning, and their perusal would be interesting and instructive, but space will not allow me to give even a synopsis of them. the court, in deciding the case, went into a full and elaborate consideration, not only of its jurisdiction, but of every objection on the merits presented by counsel on behalf of the state. only a brief outline can be given. the court held that it was within the competency of the president, and of the attorney-general as the head of the department of justice, representing him, to direct that measures be taken for the protection of officers of the government whilst in the discharge of their duties, and that it was specially appropriate that such protection should be given to the justices of the supreme court of the united states, whilst thus engaged in their respective circuits, and in passing to and from them; that the attorney-general, representing the president, was fully justified in giving orders to the marshal of the california district to appoint a deputy to look specially to the protection of justices field and sawyer from assault and violence threatened by terry and his wife; and that the deputy marshal, acting under instructions for their protection, was justified in any measures that were necessary for that purpose, even to taking the life of the assailant. the court recognized that the government of the united states exercised full jurisdiction, within the sphere of its powers, over the whole territory of the country, and that when any conflict arose between the state and the general government in the administration of their respective powers, the authority of the united states must prevail, for the constitution declares that it and the laws of the united states in pursuance thereof "shall be the supreme law of the land, and that the judges in every state shall be bound thereby, anything in the constitution and laws of any state to the contrary notwithstanding." the court quoted the language of the supreme court in tennessee v. davis ( u.s. , ), that "it [the general government] can act only through its officers and agents, and they must act within the states. if, when thus acting and within the scope of their authority, those officers can be arrested and brought to trial in a state court, for an alleged offense against the law of the state, yet warranted by the federal authority they possess, and if the general government is powerless to interfere at once for their protection--if their protection must be left to the action of the state court--the operations of the general government may, at any time, be arrested at the will of one of its members. the legislation of a state may be unfriendly. it may affix penalties to acts done under the immediate direction of the national government and in obedience to its laws. it may deny the authority conferred by those laws. the state court may administer not only the laws of the state, but equally federal law, in such a manner as to paralyze the operations of the government. and even if, after trial and final judgment in the state court, a case can be brought into the united states court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged federal power arrested. we do not think such an element of weakness is to be found in the constitution. the united states is a government with authority extending over the whole territory of the union, acting upon the states and upon the people of the states. while it is limited in the number of its powers, so far as its sovereignty extends, it is supreme. no state government can exclude it from the exercise of any authority conferred upon it by the constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it." to this strong language the circuit court added: "the very idea of a government composed of executive, legislative, and judicial departments necessarily comprehends the power to do all things, through its appropriate officers and agents, within the scope of its general governmental purposes and powers, requisite to preserve its existence, protect it and its ministers, and give it complete efficiency in all its parts. it necessarily and inherently includes power in its executive department to enforce the laws, keep the national peace with regard to its officers while in the line of their duty, and protect by its all-powerful arm all the other departments and the officers and instrumentalities necessary to their efficiency while engaged in the discharge of their duties." in language attributed to mr. ex-secretary bayard, used with reference to this very case, which we quote, not as a controlling judicial authority, but for its intrinsic, sound, common sense, "the robust and essential principle must be recognized and proclaimed, that the inherent powers of every government which is sufficient to authorize and enforce the judgment of its courts are, equally, and at all times, and in all places, sufficient to protect the individual judge who, fearlessly and conscientiously in the discharge of his duty, pronounces those judgments." in reference to the duties of the president and the powers of the attorney-general under him, and of the latter's control of the marshals of the united states, the court observed that the duties of the president are prescribed in terse and comprehensive language in section of article ii of the constitution, which declares that "he shall take care that the laws be faithfully executed;" that this gives him all the authority necessary to accomplish the purposes intended--all the authority necessarily inherent in the office, not otherwise limited, and that congress, added the court, in pursuance of powers vested in it, has provided for seven departments, as subordinate to the president, to aid him in performing his executive functions. section , r.s., provides that "there shall be at the seat of government an executive department to be known as the department of justice, and an attorney-general, who shall be the head thereof." he thus has the general supervision of the executive branch of the national judiciary, and section provides, as a portion of his powers and duties, that he "shall exercise general superintendence and direction over the attorneys and marshals of all the districts in the united states and the territories as to the manner of discharging their respective duties; and the several district attorneys and marshals are required to report to the attorney-general an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as the attorney-general may direct." section , r.s., provides that "the marshals and their deputies shall have, in each state, the same powers in executing the laws of the united states as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof." by section of the penal code of california the sheriff is a "peace officer," and by section of the political code he is "to preserve the peace" and "prevent and suppress breaches of the peace." the marshal is, therefore, under the provisions of the statute cited, "a peace officer," so far as keeping the peace in any matter wherein the powers of the united states are concerned, and as to such matters he has all the powers of the sheriff, as peace officer under the laws of the state. he is, in such matters, "to preserve the peace" and "prevent and suppress breaches of the peace." an assault upon or an assassination of a judge of a united states court while engaged in any matter pertaining to his official duties, on account or by reason of his judicial decisions, or action in performing his official duties, is a breach of the peace, affecting the authority and interests of the united states, and within the jurisdiction and power of the marshal or his deputies to prevent as a peace officer of the national government. such an assault is not merely an assault upon the person of the judge as a man; it is an assault upon the national judiciary, which he represents, and through it an assault upon the authority of the nation itself. it is, necessarily, a breach of the national peace. as a national peace officer, under the conditions indicated, it is the duty of the marshal and his deputies to prevent a breach of the national peace by an assault upon the authority of the united states, in the person of a judge of its highest court, while in the discharge of his duty. if this be not so, in the language of the supreme court, "why do we have marshals at all?" what useful functions can they perform in the economy of the national government? section of the revised statutes also declares that "it shall be the duty of the marshal of each district to attend the district and circuit courts when sitting therein, and to execute throughout the district all lawful precepts directed to him and issued under the authority of the united states, and he shall have power to command all necessary assistance in the execution of his duty." there is no more authority specifically conferred upon the marshal by this section to protect the judge from assassination in open court, without a specific order or command, than there is to protect him out of court, when on the way from one court to another in the discharge of his official duties. the marshals are in daily attendance upon the judges, and performing official duties in their chambers. yet no statute specifically points out those duties or requires their performance. indeed, no such places as chambers for the circuit judges or circuit justices are mentioned at all in the statutes. yet the marshal is as clearly authorized to protect the judges there as in the court-room. all business done out of court by the judge is called chamber business. but it is not necessary to be done in what is usually called chambers. chamber business may be done, and often is done, on the street, in the judge's own house, at the hotel where he stops, when absent from home, or it may be done in transitu, on the cars in going from one place to another within the proper jurisdiction to hold court. mr. justice field could, as well, and as authoritatively, issue a temporary injunction, grant a writ of _habeas corpus_, an order to show cause, or do any other chamber business for the district in the dining-room at lathrop, as at his chambers in san francisco, or in the court-room. the chambers of the judge, where chambers are provided, are not an element of jurisdiction, but are a convenience to the judge, and to suitors--places where the judge at proper times can be readily found, and the business conveniently transacted. but inasmuch as the revised statutes of the united states (sec. ) declare that the writ of _habeas corpus_ shall not extend to "a prisoner in jail unless where he is in custody--for an act done or omitted in pursuance of a _law_ of the united states, or of an order, process, or decree of a court or judge thereof, or in custody in violation of the constitution or of a law or treaty of the united states," it was urged in the argument by counsel for the state that there is no statute which specifically makes it the duty of a marshal or deputy marshal to protect the judges of the united states whilst out of the court-room, travelling from one point to another in their circuits, on official business, from the violence of litigants who have become offended at the adverse decisions made by them in the performance of their judicial duties, and that such officers are not within the provisions of that section. to this the court replied that the language of the section is, "an act done in pursuance of a _law_ of the united states"--not in pursuance of a statute of the united states; and that the statutes do not present in express terms all the law of the united states; that their incidents and implications are as much a part of the law as their express provisions; and that when they prescribe duties providing for the accomplishment of certain designated objects, or confer authority in general terms, they carry with them all the powers essential to effect the ends designed. as said by chief justice marshall in osborn v. bank of the united states ( wheaton, - ), "it is not unusual for a legislative act to involve consequences which are not expressed. an officer, for example, is ordered to arrest an individual. it is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. his security is implied in the order itself. it is no unusual thing for an act of congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance. the collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. it has never been doubted that all who are employed in them are protected while in the line of duty; and yet this protection is not expressed in any act of congress. it is incidental to, and is implied in, the several acts by which these institutions are created; and is secured to the individuals employed in them by the judicial power alone--that is, the judicial power is the instrument employed by the government in administering this security." upon this the circuit court observed: "if the officers referred to in the preceding passage are to be protected while in the line of their duty, without any special law or statute requiring such protection, the judges of the courts, the principal officers in a department of the government second to no other, are also to be protected, and their executive subordinates--the marshals and their deputies--shielded from harm by the national laws while honestly engaged in protecting the heads of the courts from assassination."[ ] to the position that the preservation of the peace of the state is devolved solely upon the officers of the state, and not in any respect upon the marshals of the united states, the court replied: this position is already answered by what has been said. but it is undoubtedly true that it was the imperative duty of the state to preserve the public peace and amply protect the life of justice field, _but it did not do it_, and had the united states relied upon the state to keep the peace as to him--one of the justices of the highest court--in relation to matters concerning the performance of his official duties, they would have leaned upon a broken reed. the result of the efforts to obtain an officer from the state to assist in preserving the peace and protecting him at lathrop was anything but successful. the officer of the state at lathrop, instead of arresting the conspirator of the contemplated murderer, the wife of the deceased, arrested the officer of the united states, assigned by the government to the special duty of protecting the justice against the very parties, while in the actual prosecution of duties assigned to him, without warrant, thereby leaving his charge without the protection provided by the government he was serving, at a time when such protection seemed most needed. and, besides, the use of the state police force beyond the limits of a county for the protection of justice field would have been impracticable, as the powers of the sheriff would have ended at its borders, and of other township and city peace officers at the boundaries of their respective townships and cities. only a united states marshal or his deputy could have exercised these official functions throughout the judicial district, which embraces many counties. the only remedy suggested on the part of the state was to arrest the deceased and hold him to bail to keep the peace under section of the penal code, the highest limit of the amount of bail being $ , . but although the threats are conceded to have been publicly known in the state, no state officer took any means to provide this flimsy safeguard. and the execution of a bond in this amount to keep the peace would have had no effect in deterring the intended assailants from the, commission of the offense contemplated, when the penalties of the law would not deter them. as to the deliberation and wisdom of neagle's conduct under the circumstances, the court, after stating the established facts, concludes as follows: "when the deceased left his seat, some thirty feet distant, walked stealthily down the passage in the rear of justice field and dealt the unsuspecting jurist two preliminary blows, doubtless by way of reminding him that the time for vengeance had at last come, justice field was already at the traditional 'wall' of the law. he was sitting quietly at a table, back to the assailant, eating his breakfast, the side opposite being occupied by other passengers, some of whom were women, similarly engaged. when, in a dazed condition, he awoke to the reality of the situation and saw the stalwart form of the deceased with arm drawn back for a final mortal blow, there was no time to get under or over the table, had the law, under any circumstances, required such an act for his justification. neagle could not seek a 'wall' to justify his acts without abandoning his charge to certain death. when, therefore, he sprang to his feet and cried, 'stop! i am an officer,' and saw the powerful arm of the deceased drawn back for the final deadly stroke instantly change its direction to his left breast, apparently seeking his favorite weapon, the knife, and at the same time heard the half-suppressed, disappointed growl of recognition of the man who, with the aid of half a dozen others, had finally succeeded in disarming him of his knife at the court-room a year before, the supreme moment had come, or, at least, with abundant reason he thought so, and fired the fatal shot. the testimony all concurs in showing this to be the state of facts, and the almost universal consensus of public opinion of the united states seems to justify the act. on that occasion a second, or two seconds, signified, at least, two valuable lives, and a reasonable degree of prudence would justify a shot one or two seconds too soon rather than a fraction of a second too late. upon our minds the evidence leaves no doubt whatever that the homicide was fully justified by the circumstances. neagle on the scene of action, facing the party making a murderous assault, knowing by personal experience his physical powers and his desperate character, and by general reputation his life-long habit of carrying arms, his readiness to use them, and his angry, murderous threats, and seeing his demoniac looks, his stealthy assault upon justice field from behind, and, remembering the sacred trust committed to his charge--neagle, in these trying circumstances, was the party to determine when the supreme moment for action had come, and if he, honestly, acted with reasonable judgment and discretion, the law justifies him, even if he erred. but who will have the courage to stand up in the presence of the facts developed by the testimony in this case, and say that he fired the smallest fraction of a second too soon? "in our judgment he acted, under the trying circumstances surrounding him, in good faith and with consummate courage, judgment, and discretion. the homicide was, in our opinion, clearly justifiable in law, and in the forum of sound, practical common sense commendable. this being so, and the act having been 'done * * * in pursuance of a law of the united states,' as we have already seen, it cannot be an offense against, and he is not amenable to, the laws of the state." the petitioner was accordingly discharged from arrest. [ ] note.--i find the following apt illustrations of this doctrine in a journal of the day: if a military or naval officer of the united states, in the necessary suppression of a mutiny or enforcement of obedience, should wound or take the life of a subordinate, would it be contended that, if arrested for that act by the state authority, he could not be released on _habeas corpus_, because no statute expressly authorized the performance of the act? if the commander of a revenue cutter should be directed to pursue and retake a vessel which, after seizure, had escaped from the custody of the law, and the officer in the performance of that duty, and when necessary to overcome resistance, should injure or kill a member of the crew of the vessel he was ordered to recapture, and if for that act he should be arrested and accused of crime under the state authority, will any sensible person maintain that the provisions of the _habeas corpus_ act could not be invoked for his release, notwithstanding that no statute could be shown which directly authorized the act for which he was arrested? if by command of the president a company of troops were marched into this city to protect the subtreasury from threatened pillage, and in so doing life were taken, would not the act of the officer who commanded the troops be an act done in pursuance of the laws of the united states, and in the lawful exercise of its authority? could he be imprisoned and tried before a state jury on the charge of murder, and the courts of the united states be powerless to inquire into the facts on _habeas corpus_, and to discharge him if found to have acted in the performance of his duty? can the authority of the united states for the protection of their officers be less than their authority to protect their property? there appears to be but one rational answer to these questions. in all these cases the authority vested in the officer to suppress a mutiny, or to overtake and capture an escaped vessel, or to protect the subtreasury from threatened pillage, carries with it power to do all things necessary to accomplish the object desired, even the killing of the offending party. the law conferring the authority thus extended to the officer in these cases, is in the sense of the _habeas corpus_ act, a law of the united states to do all things necessary for the execution of that authority. chapter xix. expressions of public opinion. this case and all the attendant circumstances--the attempted assassination of justice field by his former associate, terry; the defeat of this murderous attempt by deputy marshal neagle; the arrest of justice field and the deputy marshal upon the charge of murder, and their discharge--created very great interest throughout the united states. they were the subject of articles in all the leading journals of the country; and numerous telegrams and letters of congratulation were sent to the justice on his escape from the murderous attempt. satisfaction was very generally expressed at the fate which terry met, and much praise was given to the courageous conduct of neagle and at the bearing of justice field under the trying circumstances. a few of the letters received by him are here given, and citations are made from some of the periodicals, which indicated the general sentiment of the country. letter from hon. t.f. bayard, ex-secretary of state: wilmington, delaware, _august , _. my dear brother field: i was absent from home when i first saw in the newspapers an account of the infamous assault of the terrys--husband and wife--upon you, and the prompt and courageous action of deputy marshal neagle that happily frustrated the iniquitous plot against your life. accept, my dear friend, my fervent congratulations on your escape from the designs of this madman and of the shameless creature who was his wife and accomplice. for the sake of our country and its reputation in the eyes of christendom, i am indeed grateful that this vile stab at its judicial power, as vested in your personality, miscarried, and that by good fortune the insane malice of a disappointed suitor should have been thwarted. your dignified courage in this tragical episode is most impressive, and, while it endears you the more to those who love you, will wring even from your foes a tribute of respect and admiration. passing over the arguments that may be wrought out of the verbiage of our dual constitution of government, the robust and essential principle _must_ be recognized and proclaimed--that the _inherent powers_ of every government which are sufficient to authorize and enforce the judgments of its courts are equally and at all times and in all places sufficient to protect the individual judge who fearlessly and conscientiously, in the discharge of his duty, pronounces those judgments. the case, my dear friend, is not yours alone; it is equally mine and that of every other american. a principle so vital to society, to the body politic, was never more dangerously and wickedly assailed than by the assault of terry and his wife upon you for your just and honorable performance of your duty as a magistrate. i can well comprehend the shock to which this occurrence has subjected you, and i wish i could be by your side to give you assurance orally (if any were needed) of that absolute sympathy and support to which you are so fully entitled. but these lines will perhaps suffice to make you feel the affectionate and steadfast regard i entertain for you, and which this terrible event has but increased. i cannot forbear an expression of the hope that the arguments of jurisdictional and other points which must attend the litigation and settlement of this tragedy may not be abated or warped to meet any temporary local or partisan demand. the voice of justice can never speak in clearer or more divine accents than when heard in vindication and honor of her own faithful ministers. ever, my dear judge field, sincerely yours, t.f. bayard. the hon. stephen j. field, _san francisco, cal_. letter from hon. e.j. phelps, former minister to england: burlington, vermont, _august , _. my dear judge field: pray let me congratulate you most heartily on the terry transaction. nothing that has ever occurred in the administration of justice has given me more satisfaction than this prompt, righteous, and effectual vindication through an officer of the court of the sanctity of the judiciary when in the discharge of its duty. what your marshal did was exactly the right thing, at the right time, and in the right way. i shall be most happy to join in a suitable testimonial to him, if our profession will, as they ought, concur in presenting it. * * * your own coolness and carriage in confronting this danger in the discharge of your duty must be universally admired, and will shed an additional lustre on a judicial career which was distinguished enough without it. you have escaped a great peril--acquired a fresh distinction--and vindicated most properly the dignity of your high station. i am glad to perceive that this is the general opinion. anticipating the pleasure of seeing you in washington next term, i am always, dear sir, most sincerely yours, e.j. phelps. letter from hon. george f. hoar, senator from massachusetts: worcester, _august , _. my dear judge field: i think i ought to tell you, at this time, how high you stand in the confidence and reverence of all good men here, how deeply they were shocked by this outrage attempted not so much on you as on the judicial office itself, and how entirely the prompt action of the officer is approved. i hope you may long be spared to the public service. i am faithfully yours, geo. f. hoar. letter from hon. j. proctor knott, for many years a member of congress from kentucky and chairman of the judiciary committee of the house of representatives, and afterwards governor of kentucky: lebanon, kentucky, _september , _. my dear judge: * * * i have had it in mind to write you from the moment i first heard of your fortunate escape from the fiendish assassination with which you were so imminently threatened, but i have, since the latter part of may, been suffering from a most distressing affection of the eyes which has rendered it extremely difficult, and frequently, for days together, quite impossible to do so. even now, though much improved, i write in great pain, but i cannot get my consent to delay it longer on any account. you are to be congratulated, my dear friend, and you know that no one could possibly do so with more genuine, heartfelt sincerity than i do myself. * * * i had been troubled, ever since i saw you had gone to your circuit, with apprehensions that you would be assassinated, or at least subjected to some gross outrage, and cannot express my admiration of the serene heroism with which you went to your post of duty, determined not to debase the dignity of your exalted position by wearing arms for your defense, notwithstanding you were fully conscious of the danger which menaced you. it didn't surprise me, however; for i knew the stuff you were made of had been tested before. but i _was_ surprised and disgusted, too, that _you_ should have been charged or even suspected of anything wrong in the matter. the magistrate who issued the warrant for your arrest may possibly have thought it his duty to do so, without looking beyond the "railing accusation" of a baffled and infuriated murderess, which all the world instinctively knew to be false, yet i suppose there is not an intelligent man, woman, or child on the continent who does not consider it an infamous and unmitigated outrage, or who is not thoroughly satisfied that the brave fellow who defended you so opportunely was legally and morally justifiable in what he did. i have not been in a condition to _think_ very coherently, much less to read anything in relation to the question of jurisdiction raised by the state authorities in the _habeas corpus_ issued in your behalf by the u.s. circuit court, and it may be that, from the mere newspaper's reports that have reached me, i have been unable to fully apprehend the objections which are made to the courts hearing all the facts on the trial of the writ; but it occurs to me as a plain principle of common sense that the federal government should not only have the power, but that it is necessary to its own preservation, to protect its officers from being wantonly or maliciously interfered with, hindered or obstructed in the lawful exercises of their official duties, not arbitrarily of course, but through its regularly constituted agencies, and according to the established principles of law; and where such obstruction consists in the forcible restraint of the officer's liberty, i see no reason why the federal judiciary should not inquire into it on _habeas corpus_, when it is alleged to be not only illegal but contrived for the very purpose of hindering the officer in the discharge of his official duties, and impairing the efficiency of the public service. it is true that in such an investigation a real or apparent conflict between state and federal authority may be presented, which a due regard to the respective rights of the two governments would require to be considered with the utmost caution, such caution, at least, as it is fair to presume an intelligent court would always be careful to exercise, in view of the absolute importance of maintaining as far as possible the strictest harmony between the two jurisdictions. yet those rights are determined and by fixed legal principles, which it would be impossible for a court to apply in any case without a competent knowledge of the _facts_ upon which their application in the particular case might depend. for instance, if your court should issue a writ of _habeas corpus_ for the relief of a federal officer upon the averments in his petition that he was forcibly and illegally restrained of his liberty for the purpose of preventing him from performing his official duties, and it should appear in the return to the writ that the person detaining the prisoner was a ministerial officer of the state government authorized by its laws to execute its process, and that he held the petitioner in custody by virtue of a warrant of arrest in due form, issued by a competent magistrate, to answer for an offense against the state laws, i presume the court, in the absence of any further showing, would instantly remand the petitioner to the custody of the state authorities without regard to his official position or the nature of his public duties. but, on the other hand, suppose there should be a traverse of the return, averring that the warrant of the arrest, though apparently regular in all respects, was in truth but a fraudulent contrivance designed and employed for the sole purpose of hindering and obstructing the petitioner in the performance of his duties as an officer of the government of the united states; that the magistrate who issued it, knowingly and maliciously abused his authority for that purpose in pursuance of a conspiracy between himself and others, and not in good faith, and upon probable cause to bring the prisoner to justice for a crime against the state. how then? here is an apparent conflict--not a _real_ one--between the rights of the government of the united states and the government of the state. the one has a right to the service of its officer, and the right to prevent his being unlawfully interfered with or obstructed in the performance of his official duties; the other has the right to administer its laws for the punishment of crime through its own tribunals; but it must be observed that the former has no right to shield one of its officers from a valid prosecution for a violation of the laws of the latter not in conflict with the constitution and laws of the united states, nor can it be claimed that the latter has any right to suffer its laws to be prostituted, and its authority fraudulently abused, in aid of a conspiracy to defeat or obstruct the functions of the former. such an abuse of authority is not, and cannot be in any sense, a _bona fide_ administration of state laws, but is itself a crime against them. what, then, would your court do? you would probably say: if it is true that this man is held without probable cause under a fraudulent warrant, issued in pursuance of a conspiracy to which the magistrate who issued it was a party, to give legal color to a malicious interference with his functions as a federal official, he is the victim of a double crime--a crime against the united states and a crime against the state--and it is not only our duty to vindicate his right to the free exercise of his official duties, but the right of the federal government to his services, and its right to protect him in the legal performance of the same. but if, on the other hand, he has raised a mere "false clamor"--if he is held in good faith upon a valid warrant to answer for a crime committed against the state, it is equally as obligatory upon us to uphold its authority, and maintain its right to vindicate its own laws through its own machinery. to determine between these two hypotheses we must know the _facts_. * * * the same simple reasoning, it occurs to me, applies to mr. neagle's case. whether he acted in the line of his duty under the laws of the united states, as an officer of that government, is clearly a question within the jurisdiction of the federal judiciary. if he _did_, he cannot be held responsible to the state authority; if he did _not_, he should answer, if required, before its tribunals of justice. i presume no court of ordinary intelligence, state or federal, would question these obvious principles; but how _any_ court could determine whether he did or did not act in the line of his official duty under the laws of his government without a judicial inquiry into the _facts_ connected with the transaction i am unable to imagine. * * * i am, as always, your faithful friend, j. proctor knott. hon. s.j. field, _associate justice supreme court u.s._ letter from hon. william d. shipman, formerly u.s. district judge for the district of connecticut: new york, _october , _. dear judge: * * * * * i have attentively read judge sawyer's opinion in the neagle _habeas corpus_ case, and i agree with his main conclusions. it seems to me that the whole question of jurisdiction turns on the fact whether you were, at the time the assault was made on you, engaged in the performance of your official duty. you had been to los angeles to hold court there and had finished that business. in going there you were performing an official duty as much as you were when you had held court there. it was then your official duty to go from los angeles to san francisco and hold court there. you could not hold court at the latter place without going, and you were engaged in the line of your official duty in performing that journey for that purpose, as you were in holding the court after you got there. the idea that a judge is not performing official duty when he goes from court-house to court-house or from court-room to court-room in his own circuit seems to me to be absurd. the distance from one court-house or court-room to another is not material, and does not change or modify the act or duty of the judge. now, neagle was an officer of your court, charged with the duty of protecting your person while you were engaged in the performance of your official duty. _his_ duty was to see to it that you were not unlawfully prevented from performing _your_ official duty--not hindered or obstructed therein. for the state authorities to indict him for repelling the assault on you in the only way which he could do so effectually seems to me to be as unwarranted by law as it would be for them to indict him for an assault on terry when he assisted in disarming the latter in the court-room last year. when, therefore, it was conceded on the argument that if the affair at lathrop had taken place in the court-room during the sitting of the court, the jurisdiction of the circuit court would be unquestionable, it is difficult for me to see why the whole question of federal jurisdiction was not embraced in that concession. assassinating a judge _on_ the bench would no more obstruct and defeat public justice than assassinating him on his way to the bench. in each case he is _proceeding in the line of official duty imposed on him by law and_ his official oath. the law requires him to go to court wherever the latter is held, and he is as much engaged in performing the duty thus imposed on him while he is proceeding to the place of his judicial labors as he is in performing the latter after he gets there. it would, therefore, seem to go without saying that any acts done in defense and protection of the judge in the performance of the duties of his office must pertain to the exclusive jurisdiction of the court of which he forms a part. the fact that the assault on you was avowedly made in revenge for your judicial action in a case heard by you gives a darker tinge to the deed, but, perhaps, does not change the legal character of the assault itself. that neagle did his whole duty, and in no way exceeded it, is too plain for argument. yours faithfully, w.d. shipman mr. justice field. letter from james c. welling, president of columbian university, washington: hartford, _august , ._ my dear judge: it is a relief to know that justice, as well as the honored justice of our supreme judiciary, has been avenged by the pistol-shot of neagle. the life of terry has long since been forfeited to law, to decency, and to morals. he has already exceeded the limit assigned by holy scripture to men of his ilk. "the bloody-minded man shall not live out half his days." the mode of his death was in keeping with his life. men who break all the laws of nature should not expect to die by the laws of nature. in all this episode you have simply worn the judicial ermine without spot or stain. you defeated a bold, bad man in his machinations, and the enmity you thereby incurred was a crown of honor. i am glad that you are to be no longer harassed by the menace of this man's violence, for such a menace is specially trying to a minister of the law. we all know that judge field the _man_ would not flinch from a thousand terrys, but judge field the _justice_ could hardly take in his own hands the protection of his person, where the threatened outrage sprang _entirely_ from his official acts. i wish, therefore, to congratulate you on your escape alike from the violence of terry and from the necessity of killing him with your own hands. it was meet that you should have been defended by an executive officer of the court assailed in your person. for doubtless terry, and the hag who was on the hunt with him, were minded to murder you. convey my cordial felicitations to mrs. field, and believe me ever, my dear mr. justice, your faithful friend, james c. welling. mr. justice field. letter from right rev. b. wistar morris, episcopal bishop of oregon: bishopcroft, portland, oregon, _august , _. my dear judge field: i hope a word of congratulation from your oregon friends for your escape in the recent tragedy will not be considered an intrusion. of course we have all been deeply interested in its history, and proud that you were found as you were, without the defenses of a bully. i will not trespass further on your time than to subscribe myself, very truly your friend, b. wistar morris. mr. justice field. a copy of the following card was enclosed in this letter: an unarmed justice. portland oregon, _august _. _to the editor of the oregonian_: there is one circumstance in the history of the field and terry tragedy that seems to me is worthy of more emphatic comment than it has yet received. i mean the fact that judge field had about his person no weapon of defense whatever, though he knew that this miserable villain was dogging his steps for the purpose of assaulting him, perhaps of taking his life. his brother, mr. cyrus w. field, says: "it was common talk in the east here, among my brother's friends, that terry's threats to do him bodily harm were made with the full intent to follow them up. terry threatened openly to shoot the justice, and we, who knew him, were convinced he would certainly do it if he ever got a chance. "i endeavored to dissuade my brother from making the trip west this year, but to no purpose, and he said, 'i have a duty to perform there, and this sort of thing can't frighten me away. i know terry will do me harm if he gets a chance, and as i shall be in california some time, he will have chances enough. let him take them.' "when urged to arm himself he made the same reply. he said that when it came to such a pass in this country that judges find it necessary to go armed, it will be time to close the courts themselves." this was a manly and noble reply and must recall to many minds that familiar sentiment: "he is thrice armed who has his quarrel just." with the daily and hourly knowledge that this assassin was ever upon his track, this brave judge goes about his duty and scorns to take to himself the defenses of a bully or a brigand; and in doing so, how immeasurably has he placed himself above the vile creature that sought his life, and all others who resort to deeds of violence. "they that take the sword shall perish with the sword," is a saying of wide application, and had it been so in this case; had this brave and self-possessed man been moved from his high purpose by the importunity of friends, and when slain by his enemy, had been found armed in like manner with the murderer himself, what a stain would it have been upon his name and honor? and how would our whole country have been disgraced in the eyes of the civilized world, that her highest ministers of justice must be armed as highwaymen as they go about their daily duties! well said this undaunted servant of the state: "then will it be time to close the courts themselves." may we not hope, mr. editor, that this example of one occupying this high place in our country may have some influence in staying the spirit and deeds of violence now so rife, and that they who are so ready to resort to the rifle and revolver may learn to regard them only as the instruments of the coward or the scoundrel? b. wistak morris. the citations given below from different journals, published at the time, indicated the general opinion of the country. with rare exceptions it approved of the action of the government, the conduct of neagle, and the bearing of justice field. the _alta california_, a leading paper in california, had, on august , , the day following the tragedy, the following article: the terry tragedy. the killing of david s. terry by the united states marshal david neagle yesterday was an unfortunate affair, regretted, we believe, by no one more than by justice field, in whose defense the fatal shot was fired. there seems, however, to be an almost undivided sentiment that the killing was justifiable. every circumstance attending the tragedy points to the irresistible conclusion that there was a premeditated determination on the part of terry and his wife to provoke justice field to an encounter, in which terry might either find an excuse for killing the man against whom he had threatened vengeance, or in which his wife might use the pistol which she always carries, in the pretended defense of her husband. for some time past it has been feared that a meeting between terry and justice field would result in bloodshed. there is now indisputable proof that terry had made repeated threats that he would assault justice field the first time he met him off the bench, and that if the judge resisted he would kill him. viewed in the light of these threats, terry's presence on the same train with justice field will hardly be regarded as accidental, and his actions in the breakfast-room at lathrop were directly in line with the intentions he had previously expressed. neagle's prompt and deadly use of his revolver is to be judged with due reference to the character and known disposition of the man with whom he had to deal and to his previous actions and threats. he was attending justice field, against the will of the latter and in spite of his protest, in obedience to an order from the attorney-general of the united states to marshal franks to detail a deputy to protect the person of justice field from terry's threatened violence. a slap in the face may not, under ordinary circumstances, be sufficient provocation to justify the taking of human life; but it must be remembered that there were no ordinary circumstances and that terry was no ordinary man. terry was a noted pistol-shot; it was known that he invariably carried arms and that he boasted of his ability to use them. if on this occasion he was unarmed, as mrs. terry asserts,[ ] neagle had no means of knowing that fact; on the contrary, to his mind every presumption was in favor of the belief that he carried both pistol and knife, in accordance with his usual habit. as a peace officer, even apart from the special duty which had been assigned to him, he was justified in taking the means necessary to prevent terry from continuing his assault; but the means necessary in the case of one man may be wholly inadequate with a man bearing the reputation of david s. terry, a man who only a few months previously had drawn a knife while resisting the lawful authority of another united states officer. it is true that if terry was unarmed, the deputy marshal might have arrested him without taking his life or seriously endangering his own; but terry was a man of gigantic stature, and though aged, in possession of a giant's strength; and there is no one who was acquainted with him, or has had opportunity to learn his past history, who does not know that he was a desperate man, willing to take desperate chances and to resort to desperate means when giving way to his impulses of passion, and that any person who should at such a moment attempt to stay his hand would do so at the risk of his life. whether he had a pistol with him at that moment or not, there was every reason to believe that he was armed, and that the blow with his hand was intended only as the precursor to a more deadly blow with a weapon. at such moments little time is allowed for reflection. the officer of the law was called upon to act and to act promptly. he did so, and the life of david s. terry was the forfeit. he fell, a victim to his own ungovernable passions, urged on to his fate by the woman who was at once his wife and his client, and perhaps further incited by sensational newspaper articles which stirred up the memory of his resentment for fancied wrongs, and taunted him with the humiliation of threats unfulfilled. the close of judge terry's life ends a career and an era. he had the misfortune to carry into a ripened state of society the conditions which are tolerable only where social order is not fully established. restless under authority, and putting violence above law, he lived by the sword and has perished by it. that example which refused submission to judicial finalities was becoming offensive to california, but the incubus of physical fear was upon many who realized that the survival of frontier ways into non-frontier period was a damage to the state. but, be this as it may, the stubborn spirit that defied the law has fallen by the law. when justice field showed the highest judicial courage in the opening incidents of the tragedy that has now closed, the manhood of california received a distinct impetus. when the justice, with threats made against his life, returned to the state unarmed, and resentful of protection against assault, declaring that when judges must arm to defend themselves from assault offered in reprisal of their judicial actions society must be considered dissolved, he was rendering to our institutions the final and highest possible service. the event that followed, the killing of terry in the act of striking him the second time from behind, while he sat at table in a crowded public dining-room, was the act of the law. the federal department of justice, by its chief, the attorney-general of the united states, had ordered its officer, the united states marshal for the northern district of california, to take such means and such measures as might be necessary to protect the persons of the judges against assault by judge terry, in carrying out the threats that he had made. this order was from the executive arm of the government, and it was carried out to the letter. judge terry took the law into his own hands and fell. nothing can add to the lesson his fate teaches. it is established now that in california no man is above the law; that no man can affect the even poise of justice by fear. confiding in his own strength as superior to the law, david s. terry fell wretchedly. no more need be said. new california inscribes upon her shield, "obedience to the law the first condition of good citizenship," and the past is closed. _the record-union_ of sacramento, one of the leading papers of california, on august , , the day following the tragedy, had the following article under the head-- killing of judge terry. in the news columns of the _record-union_ will be found all the essential details of the circumstances of the killing of d.s. terry. it will be evident to the reader that they readily sap the whole case, and that there is no substantial dispute possible concerning the facts. these truths we assert, without fear of successful contradiction, establish the justifiableness of the act of the united states marshal who fired upon and killed terry. we think there will be no dispute among sensible men that a federal circuit judge or a justice of the supreme bench, passing from one portion of the circuit to another in which either is required to open a court and hear causes, and for the purpose of fully discharging his official duties, is while en route in the discharge of an official function, and constructively his court is open to the extent that an assault upon him, because of matters pending in his court, or because of judgments he has rendered or is to render, is an assault upon the court, and his bailiff or marshal detailed to attend the court or to aid in preserving the order and dignity of the court has the same right to protect him from assault then that he would have, had the judge actually reached his court-room. but further than this, we hold that in view of the undeniable fact that the justice had knowledge of the fact that the terrys, man and wife, had sworn to punish him; that they had indulged in threats against him of the most pronounced character; that they had boarded a train on which it is probable they knew he had taken passage from one part of his circuit to another in his capacity as a magistrate; in view of the fact that terry sought the first opportunity to approach and strike him, and that, too, when seated; and in view of the notorious fact that terry always went armed--the man who shot terry would have been justified in doing so had he not even been commissioned as an officer of the court. he warned the assailant to desist, and knowing his custom to go armed, and that he had threatened the justice, and terry refusing to restrain his blows, it was neagle's duty to save life, to strike down the assailant in the most effectual manner. men who, having the ability to prevent murder, stand by and see it committed, may well be held to accountability for criminal negligence. but in this case it is clear that murder was intended on the part of the terrys. one of them ran for her pistol and brought it, and would have reached the other's side with it in time, had she not been detained by strong men at the door. neagle saw this woman depart, and coupling it with the advance of terry, knew, as a matter of course, what it meant. he had been deputed by the chief law officer of the government--in view of previous assaults by the terrys and their threats and display of weapons in court--to stand guard over the judges and protect them. he acted, therefore, precisely as it was proper he should do. had he been less prompt and vigorous, all the world knows that not he but terry would to-day be in custody, and not terry but the venerable justice of the supreme court of the united states would to-day be in the coffin. these remarks have grown too extended for any elaboration of the moral of the tragedy that culminated in the killing of david s. terry yesterday. but we cannot allow the subject to be even temporarily dismissed without calling the thought of the reader to contemplation of the essential truth that society is bound to protect the judges of the courts of the land from violence and the threats of violence; otherwise the decisions of our courts must conform to the violence threatened, and there will be an end of our judicial system, the third and most valuable factor in the scheme of representative government. society cannot, therefore, punish, but must applaud the man who defends the courts of the people and the judges of those courts from such violence and threats of violence. for it must be apparent to even the dullest intellect that all such violence is an outrage upon the judicial conscience, and therefore involves and puts in peril the liberties of the people. the new orleans _times-democrat,_ in one of its issues at this period, used the following language: the judge in america who keeps his official ermine spotless, who faithfully attends to the heavy and responsible duties of his station, deserves that the people should guard the sanctity of his person with a strength stronger than armor of steel and readier than the stroke of lance or sword. though the judges be called to pass on tens of thousands of cases, to sentence to imprisonment or to death thousands of criminals, they should be held by the people safe from the hate and vengeance of those criminals as if they were guarded by an invulnerable shield. if judge field, of the supreme court, one of the nine highest judges under our republican government, in travelling recently over his circuit in california, had been left to the mercy of the violent man who had repeatedly threatened his life, who had proved himself ready with the deadly knife or revolver, it would have been a disgrace to american civilization; it would have been a stigma and stain upon american manhood; it would have shown that the spirit of american liberty, which exalts and pays reverence to our judiciary, had been replaced by a public apathy that marked the beginning of the decline of patriotism. judge field recognized this when, in being advised to arm himself in case his life was endangered, he uttered the noble words: "no, sir; i do not and will not carry arms, for when it is known that the judges of the court are compelled to arm themselves against assaults offered in consequence of their judicial action it will be time to dissolve the courts, consider the government a failure, and let society lapse into barbarism." that ringing sentence has gone to the remotest corner of the land, and everywhere it has gone it should fire the american heart with a proud resolve to protect forever the sanctity of our judiciary. had not neagle protected the person of judge field from the assault of a dangerous and violent ruffian, apparently intent on murder, by his prompt and decisive action, shooting the assailant down to his death, it is certain that other brave men would have rushed quickly to his rescue; but neagle's marvelous quickness forestalled the need of any other's action. the person of one of the very highest american judges was preserved unharmed, while death palsied the murderous hand that had sworn to take his life. that act of neagle's was no crime. it was a deed that any and every american should feel proud of having done. it was an act that should be applauded over the length and breadth of this great land. it should not have consigned him for one minute to prison walls. it should have lifted him high in the esteem of all the american people. when criminals turn executioners, and judges are the victims, we might as well close our courts and hoist the red flag of anarchy over their silent halls and darkened chambers. the new york _herald_, in its issue of august , , said: the sensation of the past week is a lesson in republicanism and a eulogium on the majesty of the law. it was not a personal controversy between stephen j. field and david s. terry. it was a conflict between law and lawlessness--between a judicial officer who represented the law and a man who sought to take it into his own hands. one embodied the peaceful power of the nation, the will of the people; the other defied that power and appealed to the dagger. justice field's whole course shows a conception of judicial duty that lends grandeur to a republican judiciary. it is an inspiring example to the citizens and especially to the judges of the country. he was reminded of the danger of returning to california while judge terry and his wife were at large. his firm answer was that it was his duty to go and his would go. he was then advised to arm himself for self-defense. his reply embodies a nobility that should make it historic: "when it comes to such a pass in this country that judges of the courts find it necessary to go armed it will be time to close the courts themselves." this sentiment was not born of any insensibility to danger; justice field fully realized the peril himself. but above all feeling of personal concern arose a lofty sense of the duty imposed upon a justice of the nation's highest court. the officer is a representative of the law--a minister of peace. he should show by his example that the law is supreme; that all must bow to its authority; that all lawlessness must yield to it. when judges who represent the law resort to violence even in self-defense, the pistol instead of the court becomes the arbiter of controversies, and the authority of the government gives way to the power of the mob. rather than set a precedent that might tend to such a result, that would shake popular confidence in the judiciary, that would lend any encouragement to violence, a judge, as justice field evidently felt, may well risk his own life for the welfare of the commonwealth. he did not even favor the proposition that a marshal be detailed to guard him. the course of the venerable justice is an example to all who would have the law respected. it is also a lesson to all who would take the law into their own hands. not less exemplary was his recognition of the supremacy of the law when the sheriff of san joaquin appeared before him with a warrant of arrest on the grave charge of murder. the warrant was an outrage, but it was the duty of the officer to serve it, even on a justice of the united states supreme court. when the sheriff hesitated and began to apologize before discharging his painful duty, justice field promptly spoke out: "officer, proceed with your duty. i am ready, and an officer should always do his duty." these are traits of judicial heroism worthy the admiration of the world. the _albany evening union_, in one of its issues at this time, has the following: justice field relies upon the law for his defense. the courage of justice stephen j. field in declining to carry weapons and declaring that it is time to close the courts when judges have to arm themselves, and at the same time proceeding to do his duty on the bench when his life was threatened by a desperate man, is without parallel in the history of our judiciary. we do not mean by this that he is the only judge on the bench that would be as brave as he was under the circumstances, but every phase of the affair points to the heroism of the man. he upheld the majesty of the law in a fearless manner and at the peril of his life. he would not permit the judiciary to be lowered by any fear of the personal harm that might follow a straightforward performance of his duty. his arrest for complicity in a murder was borne by the same tranquil bravery--a supreme reliance upon a due process of law. he did not want the officer to apologize to him for doing his duty. he had imprisoned judge terry and his wife sarah althea for contempt of court. * * * the threats by judge terry did not even frighten him to carry weapons of self-defense. this illustration of upholding the majesty of the law is without precedent, and is worth more to the cause of justice than the entire united states army could be if called out to suppress a riotous band of law-breakers. justice field did what any justice should do under the circumstances, but how many judges would have displayed a like courage had they been in his place? the _new york world_, in its issue of monday evening, august th, has the following article: a new leaf turned. when judge field, knowing that his life was threatened, went back unarmed into the state of california and about his business there, he gave wholesome rebuke to the cowardice that prompts men to carry a pistol--a cowardice that has been too long popular on the coast. he did a priceless service to the cause of progress in his state, and added grace to his ermine when he disdained to take arms in answer to the threats of assassins. the men who have conspired to take judge field's life ought to need only one warning that a new day has dawned in california, and to find that warning in the doom of the bully terry. the law will protect the ermine of its judges. the new york _world_ of august th treats of the arrest of justice field as an outrage, and speaks of it as follows: the arrest of field an outrage and an absurdity. the california magistrate who issued a warrant for justice field's arrest is obviously a donkey of the most precious quality. the justice had been brutally assailed by a notorious ruffian who had publicly declared his intention to kill his enemy. before justice field could even rise from his chair a neat-handed deputy united states marshal shot the ruffian. justice field had no more to do with the shooting than any other bystander, and even if there had been doubt on that point it was certain that a justice of the united states supreme court was not going to run away beyond the jurisdiction. his arrest was, therefore, as absurd as it was outrageous. it was asked for by the demented widow of the dead desperado simply as a means of subjecting the justice to an indignity, and no magistrate possessed of even a protoplasmic possibility of common sense and character would have lent himself in that way to such a service. the kansas city _times_, in its issue at this period, uses the following language: no one will censure. _gratitude for judge field's escape the chief sentiment._ deputy marshal neagle acted with terrible promptitude in protecting the venerable member of the supreme court with whose safety he was specially charged, but few will be inclined to censure him. he had to deal with a man of fierce temper, whose readiness to use firearms was part of the best known history of california. it is a subject for general congratulation that justice field escaped the violence of his assailant. the american nation would be shocked to learn that a judge of its highest tribunal could not travel without danger of assault from those whom he had been compelled to offend by administering the laws. justice field has the respect due his office and that deeper and more significant reverence produced by his character and abilities. since most of the present generation were old enough to observe public affairs he has been a jurist of national reputation and a sitting member of the supreme court. in that capacity he has earned the gratitude of his countrymen by bold and unanswerable defense of sound constitutional interpretation on more than one occasion. in all the sad affair the most prominent feeling will be that of gratitude at his escape. _the army and navy journal_, in its issue of august , , had the following article under the head of-- marshal neagle's crime. the public mind appears to be somewhat unsettled upon the question of the right of neagle to kill terry while assaulting judge field. his justification is as clear as is the benefit of his act to a long-suffering community. judge field was assaulted unexpectedly from behind, while seated at a dining-table, by a notorious assassin and ruffian, who had sworn to kill him, and who, according to the testimony of at least one witness, was armed with a long knife, had sent his wife for a pistol, and was intending to use it as soon as obtained. * * * the rule is that the danger which justifies homicide in self-defense must be actual and urgent. and was it not so in this case? no one who reflects upon the features of the case--an old man without means of defense, fastened in a sitting posture by the table at which he sat and the chair he occupied, already smitten with one severe blow and about to receive another more severe from a notorious ruffian who had publicly avowed his intention to slay him--no one surely can deny that the peril threatening judge field was both actual and urgent in the very highest degree. "a man may repel force by force in the defense of his person, habitation, or property, against one or many who manifestly intend and endeavor by violence or surprise to commit a known felony on either." "in such a case he is not obliged to retreat, but may pursue his adversary till he find himself out of danger; and if in a conflict between them he happens to kill, such killing is justifiable. the right of self-defense in case of this kind is founded on the law of nature, and is not, nor can be, superseded by any law of society. where a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force by force; and even his servant attendant on him, or any person present, may interpose for preventing mischief, and, if death ensue, the party interposing will be justified." (wharton amer. crim. law, vol. , sec. .) this is the law, as recognized at the present day and established by centuries of precedent, and it completely exonerates neagle--of course judge field needs no exoneration--from any, the least, criminality in what he did. he is acquitted of wrong-doing, not only in his character of attendant servant, but in that of bystander simply. he was as much bound to kill terry under the circumstances as every bystander in the room was bound to kill him; and in his capacity of guard, especially appointed to defend an invaluable life against a known and imminent felony, he was so bound in a much greater degree. "a sincere and apparently well-grounded belief that a felony is about to be perpetrated will extenuate a homicide committed in prevention of it, though the defendant be but a private citizen" ( ala., .) see wharton, above quoted, who embodies the doctrine in his text (vol. , sec. ). * * * * * let us be grateful from our hearts that the old mosaic law, "whoso sheddeth man's blood by man shall his blood be shed," is shown by this memorable event to have not yet fallen altogether into innocuous desuetude; and let us give thanks to god that he has seen fit on this occasion to preserve from death at the hands of an intolerable ruffian the life of that high-minded, pure-handed, and excellent jurist and magistrate, stephen j. field. the philadelphia _times_ of august th has the following: only one opinion. _marshal neagle could not stand idly by._ the killing of judge terry of california is a homicide that will occasion no regret wherever the story of his stormy and wicked life is known. at the same time, the circumstances that surrounded it will be deeply lamented. this violent man, more than once a murderer, met his death while in the act of assaulting justice field of the supreme court of the united states. had he not been killed when he was, judge field would probably have been another of his victims. terry had declared his purpose of killing the justice, and this was their first meeting since his release from deserved imprisonment. in regard to the act of united states marshal neagle, there can be only one opinion. he could not stand idly by and see a judge of the suprene court murdered before his eyes. the contumely that terry sought to put upon the judge was only the insult that was to go before premeditated murder. the case has no moral except the certainty that a violent life will end in a violent death. the _philadelphia inquirer_ of the same date says as follows: a premeditated insult. _followed quickly by a deserved retribution._ ex-judge terry's violent death was a fitting termination to a stormy life, and the incidents of his last encounter were characteristic of the man and his methods. he was one of the few lingering representatives of the old-time population of california. he was prominent there when society was organizing itself, and succeeded in holding on to life and position when many a better man succumbed to the rude justice of the period. most of his early associates died with their boots on, a generation ago. terry lived, assailed on all sides, despised by the better element and opposed by the law, in trouble often, but never punished as he deserved. his last act was to offer a gross, premeditated insult to the venerable justice field, and the retribution he had long defied followed it quickly. california will have little reason to mourn his loss. the _cleveland leader_, in its issue of august th, speaks of the conduct of neagle as follows: the killing of terry. we have already expressed the opinion in these columns that the killing of david s. terry by deputy marshal neagle at lathrop, california, wednesday, was entirely justifiable. in that opinion it is a pleasure to note that the press of the country concur almost unanimously. the judgment of eminent members of the legal profession, as published in our telegraph columns and elsewhere, support and bear out that view of the case. the full account of the trouble makes the necessity of some such action on the part of the deputy marshal clear. the judgment of the country is that neagle only did his duty in defending the person of justice field, and in that judgment the california jury will doubtless concur when the case is brought before it. the _argonaut_, a leading paper of san francisco, not a political, but a literary paper, and edited with great ability, in its issue of august , , used the following language: the course of judge field throughout this troublesome business has been in the highest degree creditable to him. he has acted with dignity and courage, and his conduct has been characterized by most excellent taste. his answer, when requested to go armed against the assault of terry, is worthy of preservation. and now that his assailant has been arrested in his career by death, all honest men who respect the law will breathe more freely. judge terry had gained a most questionable reputation, not for courage in the right direction; not for generosity which overlooked or forgave, or forgot offenses against himself or his interests. he never conceded the right to any man to hold an opinion in opposition to his prejudices, or cross the path of his passion with impunity. he could with vulgar whisper insult the judge who rendered an opinion adverse to his client, and with profane language insult the attorney who had the misfortune to be retained by a man whose cause he did not champion. he had become a terror to society and a walking menace to the social circle in which he revolved. his death was a necessity, and, except here and there a friend of blunted moral instincts, there will be found but few to mourn his death or criticise the manner of his taking off. to say that marshal neagle should have acted in any other manner than he did means that he was to have left justice field in the claws of a tiger, and at the mercy of an infuriated, angry monster, who had never shown mercy or generosity to an enemy in his power. * * * judge field has survived the unhappy conflict which carried judge terry to his grave. he is more highly honored now than when this quarrel was thrust upon him; he has lost no friends; he has made thousands of new ones who honor him for protecting with his life the honor of the american bench, the dignity of the american law, and the credit of the american name. in the home where judge terry lived he went to the grave almost unattended by the friends of his social surroundings, no clergyman consenting to read the service at his burial. the supreme court over which he had presided as chief justice refused to adjourn in honor of his death, the press and public opinion, for a wonder, in accord over the manner of his taking off. indeed, the public opinion of the country, as shown by the press and declarations of prominent individuals, was substantially one in its approval of the action of the government, the conduct of neagle, and the bearing of justice field.[ ] the _daily report_, a paper of influence in san francisco at the time, published the following article on "the lesson of the hour," from the pen of an eminent lawyer of california, who was in no way connected with the controversy which resulted in judge terry's death: the universal acquiescence of public opinion in the justifiable character of the act which terminated the life of the late david s. terry is to be accounted for by the peculiar nature of the offense which he had committed. it was not for a mere assault, though perpetrated under circumstances which rendered it peculiarly reprehensible, that he met his death without eliciting from the community one word of condemnation for the slayer or of sympathy with the slain. mr. justice field is an officer of high rank in the most important department of the government of the united states, namely, that which is charged with the administration of legal justice. when david s. terry publicly and ostentatiously slapped the face of this high official--this representative of public justice--the blow being in all probability the intended prelude to a still more atrocious offense, he committed a gross violation of the peace and dignity of the united states. the echo of the blow made the blood tingle in the veins of every true american, and from every quarter, far and near, thick and fast, came denunciations of the outrage. that any man under a government created "by the people, for the people" shall assume to be a law unto himself, the sole despot in a community based on the idea of the equality of all before the law, and the willing submission and obedience of all to established rule, is simply intolerable. in his audacious assault on "the powers that be" terry took his life in his hand, and no lover of peace and good order can regret that, of the two lives in peril, his was extinguished. he threw down the gage of battle to the whole community, and it is well that he was vanquished in the strife. in the early part of the war of the rebellion general dix, of new york, was placed in charge of one of the disaffected districts. we had then hardly begun to see that war was a very stern condition of things, and that it actually involved the necessity of killing. those familiar with the incidents of that time will remember how the general's celebrated order, "if any one attempts to haul down the american flag, shoot him on the spot," thrilled the slow pulses of the northern heart like the blast of a bugle. yet some adverse obstructionist might object that the punishment pronounced far exceeded the offense, which was merely the effort to detach from its position a piece of colored bunting. but it is the _animus_ that characterizes the act. an insult offered to a mere symbol of authority becomes, under critical circumstances, an unpardonable crime. if the symbol, instead of being an inanimate object, be a human being--a high officer of the government--does not such an outrage as that committed by terry exceed in enormity the offense denounced by general dix? and if so, why should the punishment be less? in every civilized community, society, acting with a keen instinct of self-preservation, has always punished with just severity those capital offenders against peace and good order who strike at the very foundation on which all government must rest. [ ] it has been conclusively established since that he was armed with his usual bowie-knife at the time. [ ] note.--whilst there was a general concurrence of opinion as to the threats of terry and of the fate he met at the hands of neagle and of the bearing of justice field through all the proceedings, there were exceptions to this judgment. there were persons who sympathized with terry and his associates and grieved at his fate, although he had openly avowed his intention not merely to insult judicial officers for their judicial conduct, but to kill them in case they resented the insult offered. he married sarah althea hill after the united states circuit court had delivered its opinion, in open court, announcing its decision that she had committed forgery, perjury, and subornation of perjury, and was a woman of abandoned character. and yet a writer in the _overland monthly_ in october, , attributes his assault upon the marshal--striking him violently in the face for the execution of the order of the court to remove her from the court-room because of her gross imputation upon the judges--chiefly to his chivalric spirit to protect his wife, and declares that "the universal verdict" upon him "will be that he was possessed of _sterling integrity of purpose_, and stood out from the rest of his race as a strongly individualized character, which has been well called an anachronism in our civilization." and governor pennoyer, of oregon, in his message to the legislature of that state, pronounced the officer appointed by the marshal under the direction of the attorney-general to protect justices field and sawyer from threatened violence and murder as a "_secret armed assassin_," who accompanied a federal judge in california, and who shot down in cold blood an unarmed citizen of that state. chapter xx. the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. with the discharge from arrest of the brave deputy marshal, neagle, who had stood between justice field and the would-be assassin's assault, and the vindication by the circuit court of the right of the general government to protect its officers from personal violence, for the discharge of their duties, at the hands of disappointed litigants, the public mind, which had been greatly excited by the proceedings narrated, became quieted. no apprehension was felt that there would be any reversal of the decision of the circuit court on the appeal which was taken to the supreme court. general and absolute confidence was expressed in the determination of the highest tribunal of the nation. the appeal was argued on the part of neagle by the attorney-general of the united states and joseph h. choate, esq., of the new york bar; and the briefs of counsel in the circuit court were also filed. the attorney-general of california and mr. zachariah montgomery appeared upon behalf of the state, and briefs of messrs. shellabarger and wilson were also filed in its behalf. the argument of the attorney-general of the united states was exceedingly able. he had watched all the proceedings of the case from the outset. he had directed that protection should be extended by the marshal to justice field and judge sawyer against any threatened violence, and he believed strongly in the doctrine that the officers of the general government were entitled to receive everywhere throughout the country full protection against all violence whilst in the discharge of their duties. he believed that such protection was necessary to the efficiency and permanency of the government; and its necessity in both respects was never more ably presented. the argument of mr. choate covered all the questions of law and fact in the case and was marked by that great ability and invincible logic and by that clearness and precision of statement which have rendered him one of the ablest of advocates and jurists in the country, one who all acknowledge has few peers and no superiors at the bar of the nation.[ ] the argument of the attorney-general of the state consisted chiefly of a repetition of the doctrine that, for offenses committed within its limits, the state alone has jurisdiction to try the offenders--a position which within its proper limits, and when not carried to the protection of resistance to the authority of the united states, has never been questioned. the most striking feature of the argument on behalf of the state was presented by zachariah montgomery. it may interest the reader to observe the true terry flavor introduced into his argument, and the manifest perversion of the facts into which it led him. he deeply sympathized with terry in the grief and mortification which he suffered in being charged with having assaulted the marshal with a deadly weapon in the presence of the circuit court in september, . he attempted to convince the supreme court that one of its members had deliberately made a misrecital, in the order committing terry for contempt, and treated this as a mitigation of that individual's subsequent attack on justice field. he did not, however, attempt to gainsay the testimony of the numerous witnesses who swore that terry did try to draw his knife while yet in the court-room on that occasion, and that, being temporarily prevented from doing so by force, he completed the act as soon as this force was withdrawn, and pursued the marshal with knife in hand, loudly declaring in the hearing of the court, in language too coarse and vulgar to be repeated, that he would do sundry terrible things to those who should obstruct him on his way to his wife. as she was then in the custody of the marshal and in his office, under an order of the court; and as terry had resisted her arrest and removal from the court-room until overpowered by several strong men, and as he had instantly on being released rushed madly from the court-room, drawing and brandishing his knife as he went, the conclusion is irresistible that he was determined upon her rescue from the marshal, if, with the aid of his knife, he could accomplish it. that mr. montgomery allowed these facts, which constitute the offense of an assault with a deadly weapon, to go unchallenged, compels us to the charitable presumption that he did not know the law. a reading of the decisions on this subject would have taught him that in order to constitute that offense it is not necessary that the assailant should actually stab with his knife or shoot with his pistol. the assault by terry was commenced in the court-room, under the eyes of the judges, and was a continuing act, ending only-with the wrenching of the knife from his hands. it was all committed "in the presence of the court," for the supreme court has decided in the savin case that "the jury-room and hallway were parts of the place in which the court was required by law to hold its sessions, and that the court, at least when in session, is present in every part of the place set apart for its own use and for the use of its officers, jurors, and witnesses, and that misbehavior in such a place is misbehavior in the presence of the court. (see vol. , u.s. reports, page , where the case is reported.) mr. montgomery was feckless enough to contradict the record when he stated that justice field in his opinion in the revivor case "took occasion to discuss at considerable length the question of the genuineness of the aforesaid marriage document, maintaining very strenuously that it was a forgery, and that this it was that so aroused the indignation of mrs. terry that she sprang to her feet and charged justice field with having been bought." there is not a word of truth in this statement. justice field, in overruling the demurrer, never discussed at all the genuineness of the marriage agreement. how, then, could it be true that words, nowhere to be found in judge field's opinion, "so aroused the indignation of mrs. terry that she sprang to her feet and charged justice field with having been bought"? justice field discussed only the legal effect of the decree already rendered by the united states circuit court. he said nothing to excite the woman's ire, except to state the necessary steps to be taken to enforce the decree. he had not participated in the trial of the original case, and had never been called upon to express any opinion concerning the agreement. mr. montgomery said in his brief that the opinion read by justice field, "while overruling a demurrer, assails this contract, in effect pronouncing it a forgery." this statement is totally unfounded. from it the casual reader would suppose that the demurrer was to the complaint in the original case, and that the court was forestalling evidence, whereas it was a demurrer in a proceeding to revive the suit, which had abated by the death of the party, and to give effect to the decree already rendered therein, after a full hearing of the testimony. mr. montgomery said: "the opinion also charges mrs. terry with perjury, after she has sworn that it was genuine." the judgment of a court may be referred to by one of its judges, even though the rendering of the judgment convicted a party or a witness, of perjury, without furnishing the perjurer with a justification for denouncing the judge. mr. montgomery furthermore said that the "opinion charged her not only with forgery and perjury, but with unchastity as well; for if she had not been sharon's wife, she had unquestionably been his kept mistress." he says: "at the announcement of this decision from the bench in the presence of a crowded court-room; a decision which she well knew, before the going down of another sun, would be telegraphed to the remotest corners of the civilized world, to be printed and reprinted with sensational head-lines in every newspaper, and talked over by every scandal-monger on the face of the earth; was it any wonder--not that it was right--but was it any wonder that this high-spirited, educated woman, sprung from as respectable a family as any in the great state of missouri, proud of her ancestry, and prizing her good name above everything on this earth, when she heard herself thus adjudged in one breath to be guilty of forgery, perjury, and unchastity, and thus degraded from the exalted position of wife--to which the supreme court of her state had said she was entitled--down to that of a paid harlot; was it any wonder, i say, that like an enraged tigress she sprang to her feet, and in words of indignation sought to defend her wounded honor?" mr. montgomery did not speak truly when he said that on this occasion such a decision was announced from the bench. the decision was announced on the th of december, , nearly three years before. the only decision announced on this occasion was that the case did not die with the plaintiff therein--william sharon--but that the executor of his estate had the right to act--had a right to be substituted for the deceased, and to have the decree executed just as it would have been if mr. sharon had lived. it was amazing effrontery and disregard of the truth on the part of mr. montgomery to make such a statement as he did to the supreme court, when the record, lying open before them, virtually contradicted what he was saying. towards the close of the decision justice field did make reference to mrs. terry's testimony in the superior court. he said that in the argument some stress had been laid upon the fact that in a state court, where the judge had decided in mrs. terry's favor, the witnesses had been examined in open court, where their bearing could be observed by the judge; while in the federal court the testimony had been taken before an examiner, and the court had not the advantage of hearing and seeing the witnesses. in reply to this justice field called attention to the fact that judge sullivan, while rendering his decision in favor of mrs. terry, had accused her of having wilfully perjured herself in several instances while testifying in her own case, and of having suborned perjury, and of having knowingly offered in evidence a forged document. but this reference to judge sullivan's accusations against mrs. terry was not reached in the reading of justice field's opinion until nearly an hour after mrs. terry had been forcibly removed from the court-room for contempt, and therefore she did not hear it. this fact appears on record in the contempt proceedings. but the most extraordinary feature of mr. montgomery's brief is yet to be noticed. he says that "if the assault so made by judge terry was not for the purpose of then and there killing or seriously injuring the party assaulted, but for the purpose of provoking him into a duel, then the killing of the assailant for such an assault was a crime." and again he says: "i have said that if the purpose of judge terry's assault upon field was for the purpose of killing him then and there, neagle, and not neagle only, but anybody else, would have been justifiable in killing terry to save the life of field; but that if terry's object in assaulting field was not then and there to kill or otherwise greatly injure him, but to draw him into a duel, then such an assault was not sufficient to justify the killing." he then proceeds to speak of judge terry's duel with senator broderick, in which the latter was killed. he refers to many eminent citizens who have fought duels, although he admits that dueling is a sin. he then explains that "as a rule the duelist who considers himself wronged by another, having the position and standing of a gentleman, tenders him an insult, either by a slap in the face or otherwise, in order to attract a challenge. such undoubtedly was terry's purpose in this case. all of terry's threats point precisely to that." here mr. montgomery seems to be in accord with sarah althea terry, who, as we have seen, stated that "judge terry intended to take out his satisfaction in slaps." in the same direction is the declaration of porter ashe, when he said: "instant death is a severe punishment for slapping a man on the face. i have no suspicion that terry meant to kill field or to do him further harm than to humiliate him." and also that of mr. baggett, one of terry's counsel, who said: "i have had frequent conversations with terry about field, and he has often told me that field has used his court and his power as a judge to humiliate him, and that he intended to humiliate him in return to the extent of his power. 'i will slap his face,' said terry to me, 'if i run across him, but i shall not put myself out of the way to meet him. i do not intend to kill him, but i will insult him by slapping his face, knowing that he will not resent it.'" what knightly courage was here. if ever a new edition of the dueling code is printed, it should have for a frontispiece a cut representing the stalwart terry dealing stealthy blows from behind upon a justice of the united states supreme court, years of age, after having previously informed a trusted friend that he believed himself safe from any resistance by the object of his attack. it may be here also said that justice field, as was well known to every one, had for many years suffered from great lameness in consequence of an injury received by him in early life, and with difficulty could walk without assistance. mr. montgomery, with freezing candor, informs the supreme court that, in strict accordance with the chivalrous code of honor, judge terry administered blows upon a member of that court, to force him into a duel, because of a judicial act with which he was displeased. he says: "the most conclusive proof that terry had no intention, for the time being, of seriously hurting field, but that his sole purpose was to tender him an insult, is found in the fact that he only used his open hand, and that, too, in a mild manner." we often hear of the "mild-mannered men" who "scuttle ships" and "cut throats," but this is the very first one whose "very mild manner" of beating a justice of the supreme court of the united states with his hand was ever certified to by an attorney and counsellor of that court in the argument of a case before it. it would be difficult to conceive of anything more puerile or absurd than this pretense that terry had the slightest expectation of provoking a man of justice field's age, official position, and physical condition, to fight a duel with him in vindication of the right of the court over which he presided to imprison a man for contempt for beating the marshal in the face with his fist, and afterwards pursuing him with a knife, in the presence of the court, for obeying an order of the court. mr. montgomery appears to have been imported into the case mainly for the purpose of reviewing the facts and giving them the terry stamp. his ambition seems to have been to insult justice field and his associates in the circuit court by charging them with misrepresenting the facts of the occurrence, thus repeating terry's reckless accusations to that effect. for terry he had only words of eulogy and admiration, and said he was "straightforward, candid, and incapable of concealment or treachery himself, and therefore never suspected treachery, even in an enemy." these noble qualities terry had illustrated by assaulting justice field from behind while the latter was in a position which placed him entirely at the mercy of his assailant. montgomery thought that not only neagle, but the president, attorney-general, district attorney, and marshal franks should be arraigned for terry's murder. although justice field had expressly advised the marshal that it was unnecessary for anybody to accompany him to los angeles, and although neagle went contrary to his wish, and only because the marshal considered himself instructed by the attorney-general to send him, yet mr. montgomery especially demanded that he (justice field) should be tried for terry's homicide. this, too, in the face of the fact that under instructions from the attorney-general of the state of california, aroused to his duty by the governor, the false, malicious, and infamous charge made against justice field by sarah althea terry was dismissed by the magistrate who had entertained it, on the ground that it was manifestly destitute of the shadow of a foundation, and that any further proceedings against him would be "a burning disgrace to the state." the decision of the circuit court discharging neagle from the custody of the sheriff of san joaquin county was affirmed by the supreme court of the united states on the th of april, . justice field did not sit at the hearing of the case, and took no part in its decision, nor did he remain in the conference room with his associate justices at any time while it was being considered or on the bench when it was delivered. the opinion of the court was delivered by justice miller. dissenting opinions were filed by chief justice fuller and justice lamar. justice miller's opinion concludes as follows: "we have thus given, in this case, a most attentive consideration to all the questions of law and fact which we have thought to be properly involved in it. we have felt it to be our duty to examine into the facts with a completeness justified by the importance of the case, as well as from the duty imposed upon us by the statute, which we think requires of us to place ourselves, as far as possible, in the place of the circuit court and to examine the testimony and the arguments in it, and to dispose of the party as law and justice require. "the result at which we have arrived upon this examination is, that in the protection of the person and the life of mr. justice field, while in the discharge of his official duties, neagle was authorized to resist the attack of terry upon him; that neagle was correct in the belief that without prompt action on his part the assault of terry upon the judge would have ended in the death of the latter; that such being his well-founded belief, he was justified in taking the life of terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of terry, under the circumstances, he was acting under the authority of the law of the united states, and was justified in doing so; and that he is not liable to answer in the courts of california on account of his part in that transaction. "we therefore affirm the judgment of the circuit court authorizing his discharge from the custody of the sheriff of san joaquin county." [ ] note.--mr. choate took great interest in the question involved--the right of the government of the united states to protect its officers from violence whilst engaged in the discharge of their duties,--deeming its maintenance essential to the efficiency of the government itself; and he declined to make any charge or take any fee for his professional services in the case. the privilege of supporting this great principle before the highest tribunal of the country, where his powers would be most effectively engaged in securing its recognition, was considered by him as sufficient reward. certainly he has that reward in the full establishment of that principle--for which, also, both he and attorney-general miller will receive the thanks of all who love and revere our national government and trust that its existence may be perpetuated. mr. james c. carter, the distinguished advocate of new york, also took a deep interest in the questions involved, and had several consultations with mr. choate upon them; and his professional services were given with the same generous and noble spirit that characterized the course of mr. choate. chapter xxi. concluding observations. thus ends the history of a struggle between brutal violence and the judicial authority of the united states. commencing in a mercenary raid upon a rich man's estate, relying wholly for success on forgery, perjury, and the personal fear of judges, and progressing through more than six years of litigation in both the federal and the state courts, it eventuated in a vindication by the supreme court of the united states of the constitutional power of the federal government, through its executive department, to protect the judges of the united states courts from the revengeful and murderous assaults of defeated litigants, without subjecting its appointed agents to malicious prosecutions for their fidelity to duty, by petty state officials, in league with the assailants. the dignity and the courage of justice field, who made the stand against brute force, and who, refusing either to avoid a great personal danger or to carry a weapon for his defense, trusted his life to that great power which the constitution has placed behind the judicial department for its support, was above all praise. the admirable conduct of the faithful deputy marshal, neagle, in whose small frame the power of a nation dwelt at the moment when, like a modern david, he slew a new goliath, illustrated what one frail mortal can do, who scorns danger when it crosses the path of duty. the prompt action of the executive department, through its attorney-general, in directing the marshal to afford all necessary protection against threatened danger, undoubtedly saved a justice of the supreme court from assassination, and the government from the disgrace of having pusillanimously looked on while the deed was done. the skill and learning of the lawyers who presented the case of neagle in the lower and in the appellate courts reflected honor on the legal profession. the exhaustive and convincing opinion of circuit judge sawyer, when ordering the release of neagle, seemed to have made further argument unnecessary. the grand opinion of justice miller, in announcing the decision of the supreme court affirming the order of the circuit court, was the fitting climax of all. its statement of the facts is the most graphic and vivid of the many that have been written. its vindication of the constitutional right of the federal government to exist, and to preserve itself alive in all its powers, and on every foot of its territory, without leave of, or hindrance by, any other authority, makes it one of the most important of all the utterances of that great tribunal. its power is made the more apparent by the dissent, which rests rather upon the assertion that congress had not legislated in exact terms for the case under consideration, than upon any denial of the power of the federal government to protect its courts from violence. the plausibility of this ground is dissipated by the citations in the majority opinion of the california statute concerning sheriffs, and of the federal statute concerning marshals, by which the latter are invested with all the powers of the sheriffs in the states wherein they reside, thus showing clearly that marshals possess the authority to protect officers of the united states which sheriffs possess to protect officers of the state against criminal assaults of every kind and degree. during the argument in the neagle case, as well as in the public discussions of the subject, much stress was laid by the friends of terry upon the power and duty of the state to afford full protection to all persons within its borders, including the judges of the courts of the united states. they could not see why it was necessary for the attorney-general of the united states to extend the arm of the federal government. they held that the police powers of the state were sufficient for all purposes, and that they were the sole lawful refuge for all whose lives were in danger. but they did not explain why it was that the state never did afford protection to judges field and sawyer, threatened as they notoriously were by two desperate persons. the laws of the state made it the duty of every sheriff to preserve the peace of the state, but the terrys were permitted, undisturbed and unchecked, to proclaim their intention to break the peace. if they had announced their intention, for nearly a year, to assassinate the judges of the supreme court of the state, would they have been permitted to take their lives, before being made to feel the power of the state? would an organized banditti be permitted to unseat state judges by violence, and only feel the strong halter of the law after they had accomplished their purpose? can no preventive measures be taken under the police powers of the state, when ruffians give notice that they are about to obstruct the administration of justice by the murder of high judicial officers? it was not so much to insure the punishment of terry and his wife if they should murder justice field, as to prevent the murder, that the executive branch of the united states government surrounded him with the necessary safeguards. how can justice be administered under the federal statutes if the federal judges must fight their way, while going from district to district, to overcome armed and vindictive litigants who differ with them concerning the judgments they have rendered? but it was said judge terry could have been held to bail to keep the peace. the highest bail that can be required in such cases under the law of the state is five thousand dollars. what restraint would that have been upon terry, who was so filled with malice and so reckless of consequences that he finally braved the gallows by attempting the murder of the object of his hate? but even this weak protection never was afforded. shall it be said that justice field ought to have gone to the nearest justice of the peace and obsequiously begged to have terry placed under bonds? but this he could not have done until he reached the state, and he was in peril from the moment that he reached the state line. the dust had not been brushed from his clothing before some of the papers which announced his arrival eagerly inquired what terry would do and when he would do it. some of them seemed most anxious for the sensation that a murder would produce. the state was active enough when terry had been prevented from doing his bloody work upon justice field. the constable who had been telegraphed for before the train reached lathrop on the fatal day, but who could not be found, and was not at the station to aid in preserving the peace, was quick enough to _arrest neagle without a warrant, for an act not committed in his presence_, and therefore known only to him by hearsay. against the remonstrances of a supreme justice of the united states, who had also been chief justice of california, and who might have been supposed to know the laws as well at least as a constable, the protection placed over him by the executive branch of the federal government was unlawfully taken from him and the protector incarcerated in jail. the constable doubtless did only what he was told and what he believed to be his duty. neagle declined to make any issue with him of a technical character and went with him uncomplainingly. if neagle's pistol had missed fire, or his aim had been false, he might have been arrested on the spot for his attempt to protect justice field, while terry would have been left free at the same time to finish his murderous work then, or to have pursued justice field into the car and, free from all interference by neagle, have despatched him there. the state officials were all activity to protect the would-be murderer, but seemed never to have been ruffled in the least degree over the probable assassination of a justice of the supreme court of the united states. the terrys were never thought to be in any danger. the general belief was that judges field and sawyer were in great danger from them. the death of terry displeased three classes: first, all who were willing to see justice field murdered; second, all who naturally sympathize with the tiger in his hunt for prey, and who thought it a pity that so good a fighter as terry should lose his life in seeking that of another; and, third, all who preferred to see sarah althea enjoy the property of the sharon estate in place of its lawful heirs. it is plain from the foregoing review that the state authorities of california presented no obstruction to terry and his wife as they moved towards the accomplishment of their deadly purpose against justice field. it was the executive arm of the nation operating through the deputy united states marshal, under orders from the department of justice, that prevented the assassination of justice field by david s. terry. * * * * * it only remains to state the result of the second trial of the case between sarah althea hill, now mrs. terry, and the executor of william sharon before the superior court of the city of san francisco. it will be remembered that on the first trial in that court, presided over by judge sullivan, a judgment was entered declaring that miss hill and william sharon had intermarried on the th of august, , and had at the time executed a written contract of marriage under the laws of california, and had assumed marital relations and subsequently lived together as husband and wife. from the judgment rendered an appeal was taken to the supreme court of the state. a motion was also made for a new trial in that case, and from the order denying the new trial an appeal was also taken to the supreme court. the decision on the appeal from the judgment resulted in its affirmance. the result of the appeal from the order denying a new trial was its reversal, with a direction for a new trial. the effect of that reversal was to open the whole case. in the meantime william sharon had died and miss hill had married david s. terry. the executor of william sharon, frederick w. sharon, appeared as his representative in the suit, and filed a supplemental answer. the case was tried in the superior court, before judge shafter, in july, , and on the th of august following the judge filed his findings and conclusions of law, which were, briefly, as follows: that the plaintiff and william sharon, deceased, did not, on the th of august, , or at any other time, consent to intermarry or become, by mutual agreement or otherwise, husband and wife; nor did they, thereafter, or at any time, live or cohabit together as husband and wife, or mutually or otherwise assume marital duties, rights, or obligations; that they did not, on that day or at any other time, in the city and county of san francisco, or elsewhere, jointly or otherwise, make or sign a declaration of marriage in writing or otherwise; and that the declaration of marriage mentioned in the complaint was false, counterfeited, fabricated, forged, and fraudulent, and, therefore, null and void. the conclusion of the court was that the plaintiff and william sharon were not, on august , , and never had been husband and wife, and that the plaintiff had no right or claim, legal or equitable, to any property or share in any property, real or personal, of which william sharon was the owner or in possession, or which was then or might thereafter be held by the executor of his last will and testament the defendant, frederick w. sharon. accordingly, judgment was entered for the defendant. an appeal was taken from that judgment to the supreme court of california, and on the th of august, , sarah althea terry having become insane pending the appeal, and p.p. ashe, esq., having been appointed and qualified as the general guardian of her person and estate, it was ordered that he be substituted in the case, and that she subsequently appear by him as her guardian. in october following, the appeal was dismissed. thus ended the legal controversy initiated by this adventuress to obtain a part of the estate of the deceased millionaire. by the kentuckiana digital library (http://kdl.kyvl.org/) note: images of the original pages are available through the kentuckiana digital library. see http://kdl.kyvl.org/cgi/t/text/text-idx?c=kyetexts;cc= kyetexts;xc= &idno=b - - &view=toc the lifted bandage by mary raymond shipman andrews author of "the perfect tribute," etc. new york charles scribner's sons the man let himself into his front door and, staggering lightly, like a drunken man, as he closed it, walked to the hall table, and mechanically laid down his hat, but still wearing his overcoat turned and went into his library, and dropped on the edge of a divan and stared out through the leaded panes of glass across the room facing him. the grayish skin of his face seemed to fall in diagonal furrows, from the eyes, from the nose, from the mouth. he sat, still to his finger-tips, staring. he was sitting so when a servant slipped in and stood motionless a minute, and went to the wide window where the west light glared through leafless branches outside, and drew the shades lower, and went to the fireplace and touched a match. wood caught and crackled and a cheerful orange flame flew noisily up the chimney, but the man sitting on the divan did not notice. the butler waited a moment, watching, hesitating, and then: "have you had lunch, sir?" he asked in a tentative, gentle voice. the staring eyes moved with an effort and rested on the servant's face. "lunch?" he repeated, apparently trying to focus on the meaning of the word. "lunch? i don't know, miller. but don't bring anything." with a great anxiety in his face miller regarded his master. "would you let me take your overcoat, judge?--you'll be too warm," he said. he spoke in a suppressed tone as if waiting for, fearing something, as if longing to show sympathy, and the man stood and let himself be cared for, and then sat down again in the same unrestful, fixed attitude, gazing out again through the glittering panes into the stormy, tawny west sky. miller came back and stood quiet, patient; in a few minutes the man seemed to become aware of him. "i forgot, miller. you'll want to know," he said in a tone which went to show an old bond between the two. "you'll be sorry to hear, miller," he said--and the dull eyes moved difficultly to the anxious ones, and his voice was uninflected--"you'll be sorry to know that the coroner's jury decided that master jack was a murderer." the word came more horribly because of an air of detachment from the man's mind. it was like a soulless, evil mechanism, running unguided. miller caught at a chair. "i don't believe it, sir," he gasped. "no lawyer shall make me. i've known him since he was ten, judge, and they're mistaken. it's not any mere lawyers can make me believe that awful thing, sir, of our master jack." the servant was shaking from head to foot with intense rejection, and the man put up his hand as if to ward off his emotion. "i wish i could agree with you," he said quietly, and then added, "thank you, miller." and the old butler, walking as if struck with a sickness, was gone. the man sat on the edge of the divan staring out of the window, minute after minute; the november wind tossed the clean, black lines of the branches backward and forward against the copper sky, as if a giant hand moved a fan of sea-weed before a fire. the man sat still and stared. the sky dulled; the delicate, wild branches melted together; the diamond lines in the window blurred; yet, unmoved, unseeing, the eyes stared through them. the burr of an electric bell sounded; some one came in at the front door and came to the door of the library, but the fixed figure did not stir. the newcomer stood silent a minute, two minutes; a young man in clerical dress, boyish, with gray, serious eyes. at length he spoke. "may i come in? it's dick." the man's head turned slowly and his look rested inquiringly on his nephew. it was a minute before he said, as if recognizing him, "dick. yes." and set himself as before to the persistent gazing through the window. "i lost you at the court-house," the younger man said. "i didn't mean to let you come home alone." "thank you, dick." it seemed as if neither joy nor sorrow would find a way into the quiet voice again. the wind roared; the boughs rustled against the glass; the fire, soberly settled to work, steamed and crackled; the clock ticked indifferently; there was no other sound in the room; the two men were silent, the one staring always before him, the other sitting with a hand on the older man's hand, waiting. minutes they sat so, and the wintry sky outside darkened and lay sullenly in bands of gray and orange against the windows; the light of the logs was stronger than the daylight; it flickered carelessly across the ashiness of the emotionless face. the young man, watching the face, bent forward and gripped his other hand on the unresponsive one in his clasp. "uncle," he asked, "will it make things worse if i talk to you?" "no, dick." nothing made a difference, it seemed. silence or words must simply fall without effect on the rock bottom of despair. the young man halted, as if dismayed, before this overpowering inertia of hopelessness; he drew a quick breath. "a coroner's jury isn't infallible. i don't believe it of jack--a lot of people don't believe it," he said. the older man looked at him heavily. "you'd say that. jack's friends will. i've been trained to weigh evidence--i must believe it." "listen," the young man urged. "don't shut down the gates like that. i'm not a lawyer, but i've been trained to think, too, and i believe you're not thinking squarely. there's other evidence that counts besides this. there's jack--his personality." "it has been taken into consideration." "it can't be taken into consideration by strangers--it needs years of intimacy to weigh that evidence as i can weigh it--as you--you know best of all," he cried out impulsively, "if you'll let yourself know, how impossible it was. that jack should have bought that pistol and taken it to ben armstrong's rooms to kill him--it was impossible--impossible!" the clinched fist came down on the black broadcloth knee with the conviction of the man behind it. the words rushed like melted metal, hot, stinging, not to be stopped. the judge quivered as if they had stung through the callousness, touched a nerve. a faint color crawled to his cheeks; for the first time he spoke quickly, as if his thoughts connected with something more than gray matter. "you talk about my not allowing myself to believe in jack. you seem not to realize that such a belief would--might--stand between me and madness. i've been trying to adjust myself to a possible scheme of living--getting through the years till i go into nothingness. i can't. all i can grasp is the feeling that a man might have if dropped from a balloon and forced to stay gasping in the air, with no place in it, nothing to hold to, no breath to draw, no earth to rest on, no end to hope for. there is nothing beyond." "everything is beyond," the young man cried triumphantly. "'the end,' as you call it, is an end to hope for--it is the beginning. the beginning of more than you have ever had--with them, with the people you care about." the judge turned a ghastly look upon the impetuous, bright face. "if i believed that, i should be even now perfectly happy. i don't see how you christians can ever be sorry when your friends die--it's childish; anybody ought to be able to wait a few years. but i don't believe it," he said heavily, and went on again as if an inertia of speech were carrying him as an inertia of silence had held him a few minutes before. "when my wife died a year ago it ended my personal life, but i could live jack's life. i was glad in the success and honor of it. now the success--" he made a gesture. "and the honor--if i had that, only the honor of jack's life left, i think i could finish the years with dignity. i've not been a bad man--i've done my part and lived as seemed right. before i'm old the joy is wiped out and long years left. why? it's not reasonable--not logical. with one thing to hold to, with jack's good name, i might live. how can i, now? what can i do? a life must have a _raison d'être._" "listen," the clergyman cried again. "you are not judging jack as fairly as you would judge a common criminal. you know better than i how often juries make mistakes--why should you trust this jury to have made none?" "i didn't trust the jury. i watched as i have never before known how to watch a case. i felt my mind more clear and alert than common." "alert!" he caught at the word. "but alert on the side of terror--abnormally clear to see what you dreaded. because you are fair-minded, because it has been the habit of your life to correct at once any conscious prejudice in your judgment, you have swayed to the side of unfairness to yourself, to jack. uncle," he flashed out, "would it tear your soul to have me state the case as i see it? i might, you know--i might bring out something that would make it look different." almost a smile touched the gray lines of his face. "if you wish." the young man drew himself into his chair and clasped his hands around his knee. "here it is. mr. newbold, on the seventh floor of the bruzon bachelor apartments, heard a shot at one in the morning, next his bedroom, in ben armstrong's room. he hurried into the public hall, saw the door wide open into ben's apartment, went in and found ben shot dead. trying to use the telephone to call help, he found it was out of order. so he rushed again into the hall toward the elevator with the idea of getting dr. avery, who lived below on the second floor. the elevator door was open also, and a man's opera-hat lay near it on the floor; he saw, just in time, that the car was at the bottom of the shaft, almost stepping inside, in his excitement, before he noticed this. then he ran down the stairs with jack's hat in his hand, and got dr. avery, and they found jack at the foot of the elevator shaft. it was known that ben armstrong and jack had quarrelled the day before; it was known that jack was quick-tempered; it is known that he bought that evening the pistol which was found on the floor by ben, loaded, with one empty shell. that's the story." the steady voice stopped a moment and the young man shivered slightly; his look was strained. steadily he went on. "that's the story. from that the coroner's jury have found that jack killed ben armstrong--that he bought the pistol to kill him, and went to his rooms with that purpose; that in his haste to escape, he missed seeing that the elevator was down, as mr. newbold all but missed seeing it later, and jumped into the shaft and was killed instantly himself. that's what the jury get from the facts, but it seems to me they're begging the question. there are a hundred hypotheses that would fit the case of jack's innocence--why is it reasonable to settle on the one that means his guilt? this is my idea. jack and ben armstrong had been friends since boyhood and jack, quick-tempered as he was, was warm-hearted and loyal. it was like him to decide suddenly to go to ben and make friends. he had been to a play in the evening which had more or less that _motif_; he was open to such influences. it was like the pair of them, after the reconciliation, to set to work looking at jack's new toy, the pistol. it was a brand-new sort, and the two have been interested always in guns--i remember how i, as a youngster, was impressed when ben and jack bought their first shot-guns together. jack had got the pistol at mellingham's that evening, you know--he was likely to be keen about it still, and then--it went off. there are plenty of other cases where a man has shot his friend by accident--why shouldn't poor jack be given the benefit of the doubt? the telephone wouldn't work; jack rushed out with the same idea which struck mr. newbold later, of getting dr. avery--and fell down the shaft. "for me there is no doubt. i never knew him to hold malice. he was violent sometimes, but that he could have gone about for hours with a pistol in his pocket and murder in his heart; that he could have planned ben armstrong's death and carried it out deliberately--it's a contradiction in terms. it's impossible, being jack. you must know this--you know your son--you know human nature." the rapid _résumé_ was but an impassioned appeal. its answer came after a minute; to the torrent of eager words, three words: "thank you, dick." the absolute lack of impression on the man's judgment was plain. "ah!" the clergyman sprang to his feet and stood, his eyes blazing, despairing, looking down at the bent, listless figure. how could he let a human being suffer as this one was suffering? quickly his thoughts shifted their basis. he could not affect the mind of the lawyer; might he reach now, perhaps, the soul of the man? he knew the difficulty, for before this his belief had crossed swords with the agnosticism of his uncle, an agnosticism shared by his father, in which he had been trained, from which he had broken free only five years before. he had faced the batteries of the two older brains at that time, and come out with the brightness of his new-found faith untarnished, but without, he remembered, scratching the armor of their profound doubt in everything. one could see, looking at the slender black figure, at the visionary gaze of the gray wide eyes, at the shape of the face, broad-browed, ovalled, that this man's psychic make-up must lift him like wings into an atmosphere outside a material, outside even an intellectual world. he could breathe freely only in a spiritual air, and things hard to believe to most human beings were, perhaps, his every-day thoughts. he caught a quick breath of excitement as it flashed to his brain that now, possibly, was coming the moment when he might justify his life, might help this man whom he loved, to peace. the breath he caught was a prayer; his strong, nervous fingers trembled. he spoke in a tone whose concentration lifted the eyes below him, that brooded, stared. "i can't bear it to stand by and see you go under, when there's help close. you said that if you could believe that they were living, that you would have them again, you would be perfectly happy no matter how many years you must wait. they are living as sure as i am here, and as sure as jack was here, and jack's mother. they are living still. perhaps they're close to you now. you've bound a bandage over your eyes, you've covered the vision of your spirit, so that you can't see; but that doesn't make nothingness of god's world. it's there--here--close, maybe. a more real world than this--this little thing." with a boyish gesture he thrust behind him the universe. "what do we know about the earth, except effects upon our consciousness? it's all a matter of inference--you know that better than i. the thing we do know beyond doubt is that we are each of us a something that suffers and is happy. how is that something the same as the body--the body that gets old and dies--how can it be? you can't change thought into matter--not conceivably--everybody acknowledges that. why should the thinking part die then, because the material part dies? when the organ is broken is the organist dead? the body is the hull, the covering, and when it has grown useless it will fall away and the live seed in it will stand free to sunlight and air--just at the beginning of life, as a plant is when it breaks through earth in the spring. it's the seed in the ground, and it's the flower in the sunlight, but it's the same thing--the same life--it is--it _is_." the boy's intensity of conviction shot like a flame across the quiet room. "it is the same thing with us too. the same spirit-substance underlies both worlds and there is no separation in space, only in view-point. life goes on--it's just transfigured. it's as if a bandage should be lifted from our eyes and we should suddenly see things in whose presence we had been always." the rushing, eager voice stopped. he bent and laid his hand on the older man's and stared at his face, half hidden now in the shadows of the lowering fire. there was no response. the heavy head did not lift and the attitude was unstirred, hopeless. as if struck by a blow he sprang erect and his fingers shut hard. he spoke as if to himself, brokenly. "he does not believe--a single word--i say. i can't help him--i _can't_ help him." suddenly the clinched fists flung out as if of a power not their own, and his voice rang across the room. "god!" the word shot from him as if a thunderbolt fell with it. "god! lift the bandage!" a log fell with a crash into the fire; great battling shadows blurred all the air; he was gone. the man, startled, drew up his bent shoulders, and pushed back a lock of gray hair and stared about, shaking, bewildered. the ringing voice, the word that had flashed as if out of a larger atmosphere--the place was yet full of these, and the shock of it added a keenness to his misery. his figure swung sideways; he fell on the cushions of the sofa and his arms stretched across them, his gray head lying heedless; sobs that tore roots came painfully; it was the last depth. out of it, without his volition, he spoke aloud. "god, god, god!" his voice said, not prayerfully, but repeating the sound that had shocked his torture. the word wailed, mocked, reproached, defied--and yet it was a prayer. out of a soul in mortal stress that word comes sometimes driven by a force of the spirit like the force of the lungs fighting for breath--and it is a prayer. "god, god, god!" the broken voice repeated, and sobs cut the words. and again. over and over, and again the sobbing broke it. as suddenly as if a knife had stopped the life inside the body, all sound stopped. a movement shook the man as he lay face down, arms stretched. then for a minute, two minutes, he was quiet, with a quiet that meant muscles stretched, nerves alert. slowly, slowly the tightened muscles of the arms pushed the shoulders backward and upward; the head lifted; the face turned outward, and if an observer had been there he might have seen by the glow of the firelight that the features wet, distorted, wore, more than all at this moment, a look of amazement. slowly, slowly, moving as if afraid to disturb something--a dream--a presence--the man sat erect as he had been sitting before, only that the rigidity was in some way gone. he sat alert, his eyes wide, filled with astonishment, gazing before him eagerly--a look different from the dull stare of an hour ago by the difference between hope and despair. his hands caught at the stuff of the divan on either side and clutched it. all the time the look of his face changed; all the time, not at once, but by fast, startling degrees, the gray misery which had bound eyes and mouth and brow in iron dropped as if a cover were being torn off and a light set free. amazement, doubting, incredulous came first, and with that eagerness, trembling and afraid. and then hope--and then the fear to hope. and hunger. he bent forward, his eyes peered into the quiet emptiness, his fingers gripped the cloth as if to anchor him to a wonder, to an unbelievable something; his body leaned--to something--and his face now was the face of a starved man, of a man dying from thirst, who sees food, water, salvation. and his face changed; a quality incredible was coming into it--joy. he was transformed. lines softened by magic; color came, and light in the eyes; the first unbelief, the amazement, shifted surely, swiftly, and in a flash the whole man shone, shook with rapture. he threw out before him his arms, reaching, clasping, and from his radiant look the arms might have held all happiness. a minute he stayed so with his hands stretched out, with face glowing, then slowly, his eyes straining as if perhaps they followed a vision which faded from them--slowly his arms fell and the expectancy went from his look. yet not the light, not the joy. his body quivered; his breath came unevenly, as of one just gone through a crisis; every sense seemed still alive to catch a faintest note of something exquisite which vanished; and with that the spell, rapidly as it had come, was gone. and the man sat there quiet, as he had sat an hour before, and the face which had been leaden was brilliant. he stirred and glanced about the room as if trying to adjust himself, and his eyes smiled as they rested on the familiar objects, as if for love of them, for pleasure in them. one might have said that this man had been given back at a blow youth and happiness. movement seemed beyond him yet--he was yet dazed with the newness of a marvel--but he turned his head and saw the fire and at that put out his hand to it as if to a friend. the electric bell burred softly again through the house, and the man heard it, and his eyes rested inquiringly on the door of the library. in a moment another man stood there, of his own age, iron-gray, strong-featured. "dick told me i might come," he said. "shall i trouble you? may i stay with you awhile?" the judge put out his hand friendlily, a little vaguely, much as he had put it out to the fire. "surely," he said, and the newcomer was all at once aware of his look. he started. "you're not well," he said. "you must take something--whiskey--miller----" the butler moved in the room making lights here and there, and he came quickly. "no," the judge said. "i don't want anything--i don't need anything. it's not as you think. i'll tell you about it." miller was gone; dick's father waited, his gaze fixed on the judge's face anxiously, and for moments no word was spoken. the judge gazed into the fire with the rapt, smiling look which had so startled his brother-in-law. at length: "i don't know how to tell you," he said. "there seem no words. something has happened, yet it's difficult to explain." "something happened?" the other repeated, bewildered but guarded. "i don't understand. has some one been here? is it about--the trial?" "no." a slight spasm twisted the smiling lines of the man's mouth, but it was gone and the mouth smiled still. a horror-struck expression gleamed for a second from the anxious eyes of the brother-in-law, but he controlled it quickly. he spoke gently. "tell me about it--it will do you good to talk." the judge turned from the fire, and at sight of his flushed cheeks and lighted eyes the other shrank back, and the judge saw it. "you needn't be alarmed," he said quietly. "nothing is wrong with me. but something has happened, as i told you, and everything--is changed." his eyes lifted as he spoke and strayed about the room as if considering a change which had come also to the accustomed setting. a shock of pity flashed from the other, and was mastered at once. "can you tell me what has happened?" he urged. the judge, his face bright with a brightness that was dreadful to the man who watched him, held his hand to the fire, turning it about as if enjoying the warmth. the other shivered. there was silence for a minute. the judge broke it, speaking thoughtfully: "suppose you had been born blind, ned," he began, "and no one had ever given you a hint of the sense of vision, and your imagination had never presented such a power to your mind. can you suppose that?" "i think so--yes," the brother-in-law answered, with careful gentleness, watching always the illumined countenance. "yes, i can suppose it." "then fancy if you will that all at once sight came, and the world flashed before you. do you think you'd be able to describe such an experience?" the voice was normal, reflective. many a time the two had talked together of such things in this very room, and the naturalness of the scene, and of the judge's manner, made the brother-in-law for a second forget the tragedy in which they were living. "why, of course," he answered. "if one had never heard of such a power one's vocabulary wouldn't take in the words to describe it." "exactly," the judge agreed. "that's the point i'm making. perhaps now i may tell you what it is that has happened. or rather, i may make you understand how a definite and concrete event has come to pass, which i can't tell you." alarm suddenly expressed itself beyond control in the brother-in-law's face. "john, what do you mean? do you see that you distress me? can't you tell clearly if some one has been here--what it is, in plain english, that has happened?" the judge turned his dreamy, bright look toward the frightened man. "i do see--i do see," he brought out affectionately. "i'll try to tell, as you say, in plain english. but it is like the case i put--it is a question of lack of vocabulary. a remarkable experience has occurred in this room within an hour. i can no more describe it than the man born blind could describe sight. i can only call it by one name, which may startle you. a revelation." "a revelation!" the tone expressed incredulity, scarcely veiled scorn. the judge's brilliant gaze rested undisturbed on the speaker. "i understand--none better. a day ago, two hours ago, i should have answered in that tone. we have been trained in the same school, and have thought alike. dick was here a while ago and said things--you know what dick would say. you know how you and i have been sorry for the lad--been indulgent to him--with his keen, broad mind and that inspired self-forgetfulness of his--how we've been sorry to have such qualities wasted on a parson, a religion machine. we've thought he'd come around in time, that he was too large a personality to be tied to a treadmill. we've thought that all along, haven't we? well, dick was here, and out of the hell where i was i thought that again. when he talked i thought in a way--for i couldn't think much--that after a consistent voyage of agnosticism, i wouldn't be whipped into snivelling belief at the end, by shipwreck. i would at least go down without surrendering. in a dim way i thought that. and all that i thought then, and have thought through my life, is nothing. reasoning doesn't weigh against experience. dick is right." the other man sat before him, bent forward, his hands on his knees, listening, dazed. there was a quality in the speaker's tone which made it necessary to take his words seriously. yet--the other sighed and relaxed a bit as he waited, watched. the calm voice went on. "the largest event of my life has happened in the last hour, in this room. it was this way. when dick went out i--went utterly to pieces. it was the farthest depth. out of it i called on god, not knowing what i did. and he answered. that's what happened. as if--as if a bandage had been lifted from my eyes, i was--i was in the presence of things--indescribable. there was no change, only that where i was blind before i now saw. i don't mean vision. i haven't words to explain what i mean. but a world was about me as real as this; it had perhaps always been there; in that moment i was first aware of it. i knew, as if a door had been opened, what heaven means--a condition of being. and i knew another thing more personal--that, without question, it was right with those i thought i had lost and that the horror which seemed blackest i have no need to dread. i cannot say that i saw them or heard or touched them, but i was with them. i understand, but i can't make you understand. i told dick an hour ago that if i could believe they were living, that i should ever have them again, i should be perfectly happy. that's true now. i believe it, and i am--perfectly happy." the listener groaned uncontrollably. "i know your thought," the judge answered the sound, and his eyes were like lamps as he turned them toward the man. "but you're wrong--my mind is not unhinged. you'll see. after what i've gone through, after facing eternity without hope, what are mere years? i can wait. i know. i am--perfectly happy." then the man who listened rose from his chair and came and put a hand gently on the shoulder of the judge, looking down at him gravely. "i don't understand you very well, john," he said, "but i'm glad of anything--of anything"--his voice went suddenly. "will you wait for me here a few minutes? i'm going home and i'll be back. i think i'll spend the night with you if you don't object." "object! wait!" the judge looked up in surprise, and with that he smiled. "i see. surely. i'd like to have you here. yes, i'll certainly wait." outside in the hall one might have heard the brother-in-law say a low word or two to miller as the man helped him on with his coat; then the front door shut softly, and he was gone, and the judge sat alone, his head thrown back against his chair, his face luminous. the other man swung down the dark street, rushing, agitated. as he came to the corner an electric light shone full on him and a figure crossing down toward him halted. "father! i was coming to find you. something extraordinary has happened. i was coming to find you." "yes, dick." the older man waited. "i've just left charley owen at the house--you remember charley owen?" "no." "oh, yes, you do--he's been here with--jack. he was in jack's class in college--in jack's and ben armstrong's. he used to go on shooting trips with them both--often." "i remember now." "yes, i knew you would." the young voice rushed on. "he has been away just now--down in florida shooting--away from civilization. he got all his mail for a month in one lump--just now--two days ago. in it was a letter from jack and ben armstrong, written that night, written together. do you see what that means?" "what!" the word was not a question, but an exclamation. "what--dick!" "yes--yes. there were newspapers, too, which gave an account of the trial--the first he'd heard of it--he was away in the everglades. he started instantly, and came on here when he had read the papers, and realized the bearing his letter would have on the trial. he has travelled day and night. he hoped to get here in time. jack and ben thought he was in new york. they wrote to ask him to go duck-shooting--with them. and, father--here's the most startling point of it all." as the man waited, watching his son's face, he groaned suddenly and made a gesture of despair. "don't, father--don't take it that way. it's good--it's glorious--it clears jack. my uncle will be almost happy. but i wouldn't tell him at once--i'd be careful," he warned the other. "what was it--the startling point you spoke of?" "oh--surely--this. the letter to charley owen spoke of jack's new pistol--that pistol. jack said they would have target-shooting with it in camp. they were all crack shots, you know. he said he had bought it that evening, and that ben thought well of it. ben signed the letter after jack, and then added a postscript. it clears jack--it clears him. doesn't it, father? but i wouldn't tell my uncle just yet. he's not fit to take it in for a few hours--don't you think so?" "no, i won't tell him--just yet." the young man's wide glance concentrated with a flash on his father's face. "what is it? you speak queerly. you've just come from there. how is he--how is my uncle?" there was a letterbox at the corner, a foot from the older man's shoulder. he put out his hand and held to the lid a moment before he answered. his voice was harsh. "your uncle is--perfectly happy," he said. "he's gone mad." note: project gutenberg also has an html version of this file which includes the original illustration. see -h.htm or -h.zip: (http://www.gutenberg.org/files/ / -h/ -h.htm) or (http://www.gutenberg.org/files/ / -h.zip) the works of robert louis stevenson swanston edition volume xix _of this swanston edition in twenty-five volumes of the works of robert louis stevenson two thousand and sixty copies have been printed, of which only two thousand copies are for sale._ _this is no._ ........... [illustration: r. l. s. and others in the sans-souci saloon, butaritari, gilbert islands] the works of robert louis stevenson volume nineteen london: published by chatto and windus: in association with cassell and company limited: william heinemann: and longmans green and company mdccccxii all rights reserved contents the ebb-tide page note by mr. lloyd osbourne part i.--the trio chapter i. night on the beach ii. morning on the beach--the three letters iii. the old calaboose--destiny at the door iv. the yellow flag v. the cargo of champagne vi. the partners part ii.--the quartette vii. the pearl-fisher viii. better acquaintance ix. the dinner party x. the open door xi. david and goliath xii. a tail-piece weir of hermiston introductory i. life and death of mrs. weir ii. father and son iii. in the matter of the hanging of duncan jopp iv. opinions of the bench v. winter on the moors: . at hermiston . kirstie . a border family vi. a leaf from christina's psalm-book vii. enter mephistopheles viii. a nocturnal visit ix. at the weaver's stone sir sidney colvin's note glossary of scots words the ebb-tide _a trio and quartette_ written in collaboration with lloyd osbourne "_there is a tide in the affairs of men_" note.--_on the pronunciation of a name very frequently repeated in these pages, the reader may take for a guide_-- "it was the schooner _farallone_." _r. l. s.--l. o._ note by mr. lloyd osbourne stevenson and i little knew, when we began our collaboration, that we were afterwards to raise such a hornets' nest about our ears. the critics resented such an unequal partnership, and made it impossible for us to continue it. it may be that they were right; they wanted stevenson's best, and felt pretty sure they would not get it in our collaboration. but when they ascribed all the good in our three books to stevenson and all the bad to me, they went a little beyond the mark. it is a pleasure to me to recall that the early part of both "the wrecker" and "the ebb-tide" was almost entirely my own; so also were the storm scenes of the _norah creina_; so also the fight on the _flying scud_; so also the inception of huish's scheme, the revelation of it to his companions, his landing on the atoll with the bottle of vitriol in his breast. on the other hand, the paris portion of "the wrecker" was all stevenson's, as well as the concluding chapters of both the south sea books. it is not possible to disentangle anything else that was wholly mine or his--the blending was too complete, our method of work too criss-crossed and intimate. for instance, we would begin by outlining the story in a general way; this done, we marshalled it into chapters, with a few explanatory words to each; then it was for me to write the first draft of chapter i. this i would read to him, and if satisfactory it was laid to one side; but were it not, i would rewrite it, embodying his criticisms. each chapter in turn was fully discussed in advance before i put pen to paper; and in this way, though the actual first draft was in my own hand, the form of the story continually took shape under stevenson's eyes. when my first draft of the entire book was finished he would rewrite it again from cover to cover. i can remember nothing more delightful than the days we thus passed together. if our three books are in no wise great, they preserve, it seems to me, something of the zest and exhilaration that went into their making--the good humour, the eagerness. we were both under the glamour of the islands--and that life, so strange, so picturesque, so animated, took us both by storm. kings and beachcombers, pearl-fishers and princesses, traders, slavers, and schooner-captains, castaways, and runaways--what a world it was! and all this in a fairyland of palms, and glassy bays, and little lost settlements nestling at the foot of forest and mountain, with kings to make brotherhood with us, and a dubious white man or two, in earrings and pyjamas, no less insistent to extend to us the courtesies of the "beach." it was amid such people, and amid such scenes, that "the ebb-tide" and "the wrecker" were written. lloyd osbourne. part i the trio the ebb-tide chapter i night on the beach throughout the island world of the pacific, scattered men of many european races, and from almost every grade of society, carry activity and disseminate disease. some prosper, some vegetate. some have mounted the steps of thrones and owned islands and navies. others again must marry for a livelihood; a strapping, merry, chocolate-coloured dame supports them in sheer idleness; and, dressed like natives, but still retaining some foreign element of gait or attitude, still perhaps with some relic (such as a single eye-glass) of the officer and gentleman, they sprawl in palm-leaf verandahs and entertain an island audience with memoirs of the music-hall. and there are still others, less pliable, less capable, less fortunate, perhaps less base, who continue, even in these isles of plenty, to lack bread. at the far end of the town of papeete, three such men were seated on the beach under a _purao_-tree. it was late. long ago the band had broken up and marched musically home, a motley troop of men and women, merchant clerks and navy officers, dancing in its wake, arms about waist and crowned with garlands. long ago darkness and silence had gone from house to house about the tiny pagan city. only the street-lamps shone on, making a glow-worm halo in the umbrageous alleys, or drawing a tremulous image on the waters of the port. a sound of snoring ran among the piles of lumber by the government pier. it was wafted ashore from the graceful clipper-bottomed schooners, where they lay moored close in like dinghies, and their crews were stretched upon the deck under the open sky or huddled in a rude tent amidst the disorder of merchandise. but the men under the _purao_ had no thought of sleep. the same temperature in england would have passed without remark in summer; but it was bitter cold for the south seas. inanimate nature knew it, and the bottle of cocoa-nut oil stood frozen in every bird-cage house about the island; and the men knew it, and shivered. they wore flimsy cotton clothes, the same they had sweated in by day and run the gauntlet of the tropic showers; and to complete their evil case, they had no breakfast to mention, less dinner, and no supper at all. in the telling south sea phrase, these three men were _on the beach_. common calamity had brought them acquainted, as the three most miserable english-speaking creatures in tahiti; and beyond their misery, they knew next to nothing of each other, not even their true names. for each had made a long apprenticeship in going downward; and each, at some stage of the descent, had been shamed into the adoption of an _alias_. and yet not one of them had figured in a court of justice; two were men of kindly virtues; and one, as he sat and shivered under the _purao_, had a tattered virgil in his pocket. certainly, if money could have been raised upon the book, robert herrick would long ago have sacrificed that last possession; but the demand for literature, which is so marked a feature in some parts of the south seas, extends not so far as the dead tongues; and the virgil, which he could not exchange against a meal, had often consoled him in his hunger. he would study it, as he lay with tightened belt on the floor of the old calaboose, seeking favourite passages and finding new ones only less beautiful because they lacked the consecration of remembrance. or he would pause on random country walks; sit on the path-side, gazing over the sea on the mountains of eimeo; and dip into the _aeneid_, seeking _sortes_. and if the oracle (as is the way of oracles) replied with no very certain nor encouraging voice, visions of england at least would throng upon the exile's memory: the busy schoolroom, the green playing-fields, holidays at home, and the perennial roar of london, and the fireside, and the white head of his father. for it is the destiny of those grave, restrained, and classic writers, with whom we make enforced and often painful acquaintanceship at school, to pass into the blood and become native in the memory; so that a phrase of virgil speaks not so much of mantua or augustus, but of english places and the student's own irrevocable youth. robert herrick was the son of an intelligent, active, and ambitious man, small partner in a considerable london house. hopes were conceived of the boy; he was sent to a good school, gained there an oxford scholarship, and proceeded in course to the western university. with all his talent and taste (and he had much of both) robert was deficient in consistency and intellectual manhood, wandered in bypaths of study, worked at music or at metaphysics when he should have been at greek, and took at last a paltry degree. almost at the same time, the london house was disastrously wound up; mr. herrick must begin the world again as a clerk in a strange office, and robert relinquish his ambitions and accept with gratitude a career that he detested and despised. he had no head for figures, no interest in affairs, detested the constraint of hours, and despised the aims and the success of merchants. to grow rich was none of his ambitions; rather to do well. a worse or a more bold young man would have refused the destiny; perhaps tried his future with his pen; perhaps enlisted. robert, more prudent, possibly more timid, consented to embrace that way of life in which he could most readily assist his family. but he did so with a mind divided; fled the neighbourhood of former comrades; and chose, out of several positions placed at his disposal, a clerkship in new york. his career thenceforth was one of unbroken shame. he did not drink, he was exactly honest, he was never rude to his employers, yet was everywhere discharged. bringing no interest to his duties, he brought no attention; his day was a tissue of things neglected and things done amiss; and from place to place, and from town to town, he carried the character of one thoroughly incompetent. no man can bear the word applied to him without some flush of colour, as indeed there is none other that so emphatically slams in a man's face the door of self-respect. and to herrick, who was conscious of talents and acquirements, who looked down upon those humble duties in which he was found wanting, the pain was the more exquisite. early in his fall he had ceased to be able to make remittances; shortly after, having nothing but failure to communicate, he ceased writing home; and about a year before this tale begins, turned suddenly upon the streets of san francisco by a vulgar and infuriated german jew, he had broken the last bonds of self-respect, and, upon a sudden impulse, changed his name and invested his last dollar in a passage on the mail brigantine, the _city of papeete_. with what expectation he had trimmed his flight for the south seas, herrick perhaps scarcely knew. doubtless there were fortunes to be made in pearl and copra; doubtless others not more gifted than himself had climbed in the island world to be queen's consorts and king's ministers. but if herrick had gone there with any manful purpose, he would have kept his father's name; the _alias_ betrayed his moral bankruptcy; he had struck his flag; he entertained no hope to reinstate himself or help his straitened family; and he came to the islands (where he knew the climate to be soft, bread cheap, and manners easy) a skulker from life's battle and his own immediate duty. failure, he had said, was his portion; let it be a pleasant failure. it is fortunately not enough to say, "i will be base." herrick continued in the islands his career of failure; but in the new scene and under the new name, he suffered no less sharply than before. a place was got, it was lost in the old style; from the long-suffering of the keepers of restaurants he fell to more open charity upon the wayside; as time went on, good-nature became weary, and, after a repulse or two, herrick became shy. there were women enough who would have supported a far worse and a far uglier man; herrick never met or never knew them: or if he did both, some manlier feeling would revolt, and he preferred starvation. drenched with rains, broiling by day, shivering by night, a disused and ruinous prison for a bedroom, his diet begged or pilfered out of rubbish heaps, his associates two creatures equally outcast with himself, he had drained for months the cup of penitence. he had known what it was to be resigned, what it was to break forth in a childish fury of rebellion against fate, and what it was to sink into the coma of despair. the time had changed him. he told himself no longer tales of an easy and perhaps agreeable declension; he read his nature otherwise; he had proved himself incapable of rising, and he now learned by experience that he could not stoop to fall. something that was scarcely pride or strength, that was perhaps only refinement, withheld him from capitulation; but he looked on upon his own misfortune with a growing rage, and sometimes wondered at his patience. it was now the fourth month completed, and still there was no change or sign of change. the moon, racing through a world of flying clouds of every size and shape and density, some black as inkstains, some delicate as lawn, threw the marvel of her southern brightness over the same lovely and detested scene: the island mountains crowned with the perennial island cloud, the embowered city studded with rare lamps, the masts in the harbour, the smooth mirror of the lagoon, and the mole of the barrier reef on which the breakers whitened. the moon shone too, with bull's-eye sweeps, on his companions; on the stalwart frame of the american who called himself brown, and was known to be a master-mariner in some disgrace; and on the dwarfish person, the pale eyes and toothless smile of a vulgar and bad-hearted cockney clerk. here was society for robert herrick! the yankee skipper was a man at least: he had sterling qualities of tenderness and resolution: he was one whose hand you could take without a blush. but there was no redeeming grace about the other, who called himself sometimes hay and sometimes tomkins, and laughed at the discrepancy; who had been employed in every store in papeete, for the creature was able in his way; who had been discharged from each in turn, for he was wholly vile; who had alienated all his old employers so that they passed him in the street as if he were a dog, and all his old comrades so that they shunned him as they would a creditor. not long before, a ship from peru had brought an influenza, and it now raged in the island, and particularly in papeete. from all round the _purao_ arose and fell a dismal sound of men coughing, and strangling as they coughed. the sick natives, with the islander's impatience of a touch of fever, had crawled from their houses to be cool, and, squatting on the shore or on the beached canoes, painfully expected the new day. even as the crowing of cocks goes about the country in the night from farm to farm, accesses of coughing arose and spread, and died in the distance, and sprang up again. each miserable shiverer caught the suggestion from his neighbour, was torn for some minutes by that cruel ecstasy, and left spent and without voice or courage when it passed. if a man had pity to spend, papeete beach, in that cold night and in that infected season, was a place to spend it on. and of all the sufferers perhaps the least deserving, but surely the most pitiable, was the london clerk. he was used to another life, to houses, beds, nursing, and the dainties of the sick-room; he lay here now, in the cold open, exposed to the gusting of the wind, and with an empty belly. he was besides infirm; the disease shook him to the vitals; and his companions watched his endurance with surprise. a profound commiseration filled them, and contended with and conquered their abhorrence. the disgust attendant on so ugly a sickness magnified this dislike; at the same time, and with more than compensating strength, shame for a sentiment so inhuman bound them the more straitly to his service; and even the evil they knew of him swelled their solicitude, for the thought of death is always the least supportable when it draws near to the merely sensual and selfish. sometimes they held him up; sometimes, with mistaken helpfulness, they beat him between the shoulders; and when the poor wretch lay back ghastly and spent after a paroxysm of coughing, they would sometimes peer into his face, doubtfully exploring it for any mark of life. there is no one but has some virtue: that of the clerk was courage; and he would make haste to reassure them in a pleasantry not always decent. "i'm all right, pals," he gasped once: "this is the thing to strengthen the muscles of the larynx." "well, you take the cake!" cried the captain. "o, i'm good plucked enough," pursued the sufferer with a broken utterance. "but it do seem bloomin' hard to me, that i should be the only party down with this form of vice, and the only one to do the funny business. i think one of you other parties might wake up. tell a fellow something." "the trouble is we've nothing to tell, my son," returned the captain. "i'll tell you, if you like, what i was thinking," said herrick. "tell us anything," said the clerk, "i only want to be reminded that i ain't dead." herrick took up his parable, lying on his face and speaking slowly and scarce above his breath, not like a man who has anything to say, but like one talking against time. "well, i was thinking this," he began: "i was thinking i lay on papeete beach one night--all moon and squalls and fellows coughing--and i was cold and hungry, and down in the mouth, and was about ninety years of age, and had spent two hundred and twenty of them on papeete beach. and i was thinking i wished i had a ring to rub, or had a fairy godmother, or could raise beelzebub. and i was trying to remember how you did it. i knew you made a ring of skulls, for i had seen that in the _freischütz_: and that you took off your coat and turned up your sleeves, for i had seen formes do that when he was playing kaspar, and you could see (by the way he went about it) it was a business he had studied; and that you ought to have something to kick up a smoke and a bad smell, i daresay a cigar might do, and that you ought to say the lord's prayer backwards. well, i wondered if i could do that; it seemed rather a feat, you see. and then i wondered if i would say it forward, and i thought i did. well, no sooner had i got to _world without end_, than i saw a man in a _pariu_, and with a mat under his arm, come along the beach from the town. he was rather a hard-favoured old party, and he limped and crippled, and all the time he kept coughing. at first i didn't cotton to his looks, i thought, and then i got sorry for the old soul because he coughed so hard. i remembered that we had some of that cough mixture the american consul gave the captain for hay. it never did hay a ha'porth of service, but i thought it might do the old gentleman's business for him, and stood up. '_yorana!_' says i. '_yorana!_' says he. 'look here,' i said, 'i've got some first-rate stuff in a bottle; it'll fix your cough, savvy? _harry my_[ ] and i'll measure you a tablespoonful in the palm of my hand, for all our plate is at the bankers.' so i thought the old party came up, and the nearer he came the less i took to him. but i had passed my word, you see." "wot is this bloomin' drivel?" interrupted the clerk. "it's like the rot there is in tracts." "it's a story; i used to tell them to the kids at home," said herrick. "if it bores you, i'll drop it." "o, cut along!" returned the sick man irritably. "it's better than nothing." "well," continued herrick, "i had no sooner given him the cough mixture than he seemed to straighten up and change, and i saw he wasn't a tahitian after all, but some kind of arab, and had a long beard on his chin. 'one good turn deserves another,' says he. 'i am a magician out of the "arabian nights," and this mat that i have under my arm is the original carpet of mohammed ben somebody-or-other. say the word, and you can have a cruise upon the carpet.' 'you don't mean to say this is the travelling carpet?' i cried. 'you bet i do,' said he. 'you've been to america since last i read the "arabian nights,"' said i, a little suspicious. 'i should think so,' said he. 'been everywhere. a man with a carpet like this isn't going to moulder in a semi-detached villa.' well, that struck me as reasonable. 'all right,' i said; 'and do you mean to tell me i can get on that carpet and go straight to london, england?' i said 'london, england,' captain, because he seemed to have been so long in your part of the world. 'in the crack of a whip,' said he. i figured up the time. what is the difference between papeete and london, captain?" "taking greenwich and point venus, nine hours, odd minutes and seconds," replied the mariner. "well, that's about what i made it," resumed herrick, "about nine hours. calling this three in the morning, i made out i would drop into london about noon; and the idea tickled me immensely. 'there's only one bother,' i said, 'i haven't a copper cent. it would be a pity to go to london and not buy the morning _standard_.' 'o!' said he, 'you don't realise the conveniences of this carpet. you see this pocket? you've only got to stick your hand in, and you pull it out filled with sovereigns.'" "double-eagles, wasn't it?" inquired the captain. "that was what it was!" cried herrick. "i thought they seemed unusually big, and i remember now i had to go to the money-changers at charing cross and get english silver." "o, you went there?" said the clerk. "wot did you do? bet you had a b.-and-s.!" "well, you see, it was just as the old boy said--like the cut of a whip," said herrick. "the one minute i was here on the beach at three in the morning, the next i was in front of the golden cross at midday. at first i was dazzled, and covered my eyes, and there didn't seem the smallest change; the roar of the strand and the roar of the reef were like the same: hark to it now, and you can hear the cabs and 'buses rolling and the streets resound! and then at last i could look about, and there was the old place, and no mistake! with the statues in the square, and st. martin's-in-the-fields, and the bobbies, and the sparrows, and the hacks; and i can't tell you what i felt like. i felt like crying, i believe, or dancing, or jumping clean over the nelson column. i was like a fellow caught up out of hell and flung down into the dandiest part of heaven. then i spotted for a hansom with a spanking horse. 'a shilling for yourself if you're there in twenty minutes!' said i to the jarvey. he went a good pace, though of course it was a trifle to the carpet; and in nineteen minutes and a half i was at the door." "what door?" asked the captain. "o, a house i know of," returned herrick. "bet it was a public-house!" cried the clerk,--only these were not his words. "and w'y didn't you take the carpet there instead of trundling in a growler?" "i didn't want to startle a quiet street," said the narrator. "bad form. and besides, it was a hansom." "well, and what did you do next?" inquired the captain. "o, i went in," said herrick. "the old folks?" asked the captain. "that's about it," said the other, chewing a grass. "well, i think you are about the poorest 'and at a yarn!" cried the clerk. "crikey, it's like 'ministering children!' i can tell you there would be more beer and skittles about my little jaunt. i would go and have a b.-and-s. for luck. then i would get a big ulster with astrakhan fur, and take my cane and do the la-de-da down piccadilly. then i would go to a slap-up restaurant, and have green peas, and a bottle of fizz, and a chump chop--o! and i forgot, i'd 'ave some devilled whitebait first--and green gooseberry tart, and 'ot coffee, and some of that form of vice in big bottles with a seal--benedictine--that's the bloomin' nyme! then i'd drop into a theatre, and pal on with some chappies, and do the dancing rooms and bars, and that, and wouldn't go 'ome till morning, till daylight doth appear. and the next day i'd have water-cresses, 'am, muffin, and fresh butter; wouldn't i just, o my!" the clerk was interrupted by a fresh attack of coughing. "well, now, i'll tell you what i would do," said the captain: "i would have none of your fancy rigs with the man driving from the mizzen cross-trees, but a plain fore-and-aft hack cab of the highest registered tonnage. first of all, i would bring up at the market and get a turkey and a sucking-pig. then i'd go to a wine-merchant's and get a dozen of champagne, and a dozen of some sweet wine, rich and sticky and strong, something in the port or madeira line, the best in the store. then i'd bear up for a toy-store, and lay out twenty dollars in assorted toys for the pickaninnies; and then to a confectioner's and take in cakes and pies and fancy bread, and that stuff with the plums in it; and then to a newsagency and buy all the papers, all the picture ones for the kids, and all the story papers for the old girl about the earl discovering himself to anna-mariar and the escape of the lady maude from the private madhouse; and then i'd tell the fellow to drive home." "there ought to be some syrup for the kids," suggested herrick; "they like syrup." "yes, syrup for the kids, red syrup at that!" said the captain. "and those things they pull at, and go pop, and have measly poetry inside. and then i tell you we'd have a thanksgiving-day and christmas-tree combined. great scott, but i would like to see the kids! i guess they would light right out of the house when they saw daddy driving up. my little adar--" the captain stopped sharply. "well, keep it up!" said the clerk. "the damned thing is, i don't know if they ain't starving!" cried the captain. "they can't be worse off than we are, and that's one comfort," returned the clerk. "i defy the devil to make me worse off." it seemed as if the devil heard him. the light of the moon had been some time cut off and they had talked in darkness. now there was heard a roar, which drew impetuously nearer; the face of the lagoon was seen to whiten; and before they had staggered to their feet, a squall burst in rain upon the outcasts. the rage and volume of that avalanche one must have lived in the tropics to conceive; a man panted in its assault as he might pant under a shower-bath; and the world seemed whelmed in night and water. they fled, groping for their usual shelter--it might be almost called their home--in the old calaboose; came drenched into its empty chambers; and lay down, three sops of humanity, on the cold coral floors, and presently, when the squall was overpast, the others could hear in the darkness the chattering of the clerk's teeth. "i say, you fellows," he wailed, "for god's sake, lie up and try to warm me. i'm blymed if i don't think i'll die else!" so the three crept together into one wet mass, and lay until day came, shivering and dozing off, and continually re-awakened to wretchedness by the coughing of the clerk. footnote: [ ] come here. chapter ii morning on the beach--the three letters the clouds were all fled, the beauty of the tropic day was spread upon papeete; and the wall of breaking seas upon the reef, and the palms upon the islet, already trembled in the heat. a french man-of-war was going out, homeward bound; she lay in the middle distance of the port, an ant-heap for activity. in the night a schooner had come in, and now lay far out, hard by the passage; and the yellow flag, the emblem of pestilence, flew on her. from up the coast, a long procession of canoes headed round the point and towards the market, bright as a scarf with the many-coloured clothing of the natives and the piles of fruit. but not even the beauty and the welcome warmth of the morning, not even these naval movements, so interesting to sailors and to idlers, could engage the attention of the outcasts. they were still cold at heart, their mouths sour from the want of sleep, their steps rambling from the lack of food; and they strung like lame geese along the beach in a disheartened silence. it was towards the town they moved; towards the town whence smoke arose, where happier folk were breakfasting; and as they went, their hungry eyes were upon all sides, but they were only scouting for a meal. a small and dingy schooner lay snug against the quay, with which it was connected by a plank. on the forward deck, under a spot of awning, five kanakas, who made up the crew, were squatted round a basin of fried feis,[ ] and drinking coffee from tin mugs. "eight bells: knock off for breakfast!" cried the captain, with a miserable heartiness. "never tried this craft before; positively my first appearance; guess i'll draw a bumper house." he came close up to where the plank rested on the grassy quay; turned his back upon the schooner, and began to whistle that lively air, "the irish washerwoman." it caught the ears of the kanaka seamen like a preconcerted signal; with one accord they looked up from their meal and crowded to the ship's side, fei in hand and munching as they looked. even as a poor brown pyrenean bear dances in the streets of english towns under his master's baton; even so, but with how much more of spirit and precision, the captain footed it in time to his own whistling, and his long morning shadow capered beyond him on the grass. the kanakas smiled on the performance; herrick looked on heavy-eyed, hunger for the moment conquering all sense of shame; and a little farther off, but still hard by, the clerk was torn by the seven devils of the influenza. the captain stopped suddenly, appeared to perceive his audience for the first time, and represented the part of a man surprised in his private hour of pleasure. "hello!" said he. the kanakas clapped hands and called upon him to go on. "no, _sir_!" said the captain. "no eat, no dance. savvy?" "poor old man!" returned one of the crew. "him no eat?" "lord, no!" said the captain. "like-um too much eat. no got." "all right. me got," said the sailor; "you tome here. plenty toffee, plenty fei. nutha man him tome too." "i guess we'll drop right in," observed the captain; and he and his companions hastened up the plank. they were welcomed on board with the shaking of hands; place was made for them round the basin; a sticky demijohn of molasses was added to the feast in honour of company, and an accordion brought from the forecastle and significantly laid by the performer's side. "_ariana_,"[ ] said he lightly, touching the instrument as he spoke; and he fell to on a long savoury fei, made an end of it, raised his mug of coffee, and nodded across at the spokesman of the crew. "here's your health, old man; you're a credit to the south pacific," said he. with the unsightly greed of hounds they glutted themselves with the hot food and coffee; and even the clerk revived and the colour deepened in his eyes. the kettle was drained, the basin cleaned; their entertainers, who had waited on their wants throughout with the pleased hospitality of polynesians, made haste to bring forward a dessert of island tobacco and rolls of pandanus leaf to serve as paper; and presently all sat about the dishes puffing like indian sachems. "when a man 'as breakfast every day, he don't know what it is," observed the clerk. "the next point is dinner," said herrick; and then with a passionate utterance: "i wish to god i was a kanaka!" "there's one thing sure," said the captain. "i'm about desperate; i'd rather hang than rot here much longer." and with the word he took the accordion and struck up "home, sweet home." "o, drop that!" cried herrick, "i can't stand that." "no more can i," said the captain. "i've got to play something though: got to pay the shot, my son." and he struck up "john brown's body" in a fine sweet baritone: "dandy jim of carolina" came next; "rorin the bold," "swing low, sweet chariot," and "the beautiful land" followed. the captain was paying his shot with usury, as he had done many a time before; many a meal had he bought with the same currency from the melodious-minded natives, always, as now, to their delight. he was in the middle of "fifteen dollars in the inside pocket," singing with dogged energy, for the task went sore against the grain, when a sensation was suddenly to be observed among the crew. "_tapena tom harry my_,"[ ] said the spokesman, pointing. and the three beachcombers, following his indication, saw the figure of a man in pyjama trousers and a white jumper approaching briskly from the town. "that's tapena tom, is it?" said the captain, pausing in his music. "i don't seem to place the brute." "we'd better cut," said the clerk. "'e's no good." "well," said the musician deliberately, "one can't most generally always tell. i'll try it on, i guess. music has charms to soothe the savage tapena, boys. we might strike it rich; it might amount to iced punch in the cabin." "hiced punch? o my!" said the clerk. "give him something 'ot, captain. 'way down the swannee river': try that." "no, _sir_! looks scots," said the captain; and he struck, for his life, into "auld lang syne." captain tom continued to approach with the same business-like alacrity; no change was to be perceived in his bearded face as he came swinging up the plank: he did not even turn his eyes on the performer. "we twa hae paidled in the burn, frae morning tide till dine," went the song. captain tom had a parcel under his arm, which he laid on the house roof, and then turning suddenly to the strangers: "here, you!" he bellowed, "be off out of that!" the clerk and herrick stood not on the order of their going, but fled incontinently by the plank. the performer, on the other hand, flung down the instrument and rose to his full height slowly. "what's that you say?" he said. "i've half a mind to give you a lesson in civility." "you set up any more of your gab to me," returned the scotsman, "and i'll show ye the wrong side of a jyle. i've heard tell of the three of ye. ye're not long for here, i can tell ye that. the government has their eyes upon ye. they make short work of damned beachcombers, i'll say that for the french." "you wait till i catch you off your ship!" cried the captain; and then, turning to the crew, "good-bye, you fellows!" he said. "you're gentlemen, anyway! the worst nigger among you would look better upon a quarter-deck than that filthy scotsman." captain tom scorned to reply. he watched with a hard smile the departure of his guests, and as soon as the last foot was off the plank, turned to the hands to work cargo. the beachcombers beat their inglorious retreat along the shore; herrick first, his face dark with blood, his knees trembling under him with the hysteria of rage. presently, under the same _purao_ where they had shivered the night before, he cast himself down, and groaned aloud, and ground his face into the sand. "don't speak to me, don't speak to me. i can't stand it," broke from him. the other two stood over him perplexed. "wot can't he stand now?" said the clerk. "'asn't he 'ad a meal? _i'm_ lickin' my lips." herrick reared up his wild eyes and burning face. "i can't beg!" he screamed, and again threw himself prone. "this thing's got to come to an end," said the captain, with an intake of the breath. "looks like signs of an end, don't it?" sneered the clerk. "he's not so far from it, and don't you deceive yourself," replied the captain.--"well," he added in a livelier voice, "you fellows hang on here, and i'll go and interview my representative." whereupon he turned on his heel, and set off at a swinging sailor's walk towards papeete. it was some half-hour later when he returned. the clerk was dozing with his back against the tree: herrick still lay where he had flung himself; nothing showed whether he slept or waked. "see, boys!" cried the captain, with that artificial heartiness of his which was at times so painful, "here's a new idea." and he produced note-paper, stamped envelopes, and pencils, three of each. "we can all write home by the mail brigantine; the consul says i can come over to his place and ink up the addresses." "well, that's a start, too," said the clerk. "i never thought of that." "it was that yarning last night about going home that put me up to it," said the captain. "well, 'and over," said the clerk. "i'll 'ave a shy," and he retired a little distance to the shade of a canoe. the others remained under the _purao_. now they would write a word or two, now scribble it out; now they would sit biting at the pencil end and staring seaward; now their eyes would rest on the clerk, where he sat propped on the canoe, leering and coughing, his pencil racing glibly on the paper. "i can't do it," said herrick suddenly. "i haven't got the heart." "see here," said the captain, speaking with unwonted gravity; "it may be hard to write, and to write lies at that; and god knows it is; but it's the square thing. it don't cost anything to say you're well and happy, and sorry you can't make a remittance this mail; and if you don't i'll tell you what i think it is--i think it's about the high-water mark of being a brute beast." "it's easy to talk," said herrick. "you don't seem to have written much yourself, i notice." "what do you bring in me for?" broke from the captain. his voice was indeed scarce raised above a whisper, but emotion clanged in it. "what do you know about me? if you had commanded the finest barque that ever sailed from portland; if you had been drunk in your berth when she struck the breakers in fourteen island group, and hadn't had the wit to stay there and drown, but came on deck, and given drunken orders, and lost six lives--i could understand your talking then! there," he said more quietly, "that's my yarn, and now you know it. it's a pretty one for the father of a family. five men and a woman murdered. yes, there was a woman on board, and hadn't no business to be either. guess i sent her to hell, if there is such a place. i never dared go home again; and the wife and the little ones went to england to her father's place. i don't know what's come to them," he added, with a bitter shrug. "thank you, captain," said herrick. "i never liked you better." they shook hands, short and hard, with eyes averted, tenderness swelling in their bosoms. "now, boys! to work again at lying!" said the captain. "i'll give my father up," returned herrick with a writhen smile. "i'll try my sweetheart instead for a change of evils." and here is what he wrote:-- "emma, i have scratched out the beginning to my father, for i think i can write more easily to you. this is my last farewell to all, the last you will ever hear or see of an unworthy friend and son. i have failed in life; i am quite broken down and disgraced. i pass under a false name; you will have to tell my father that with all your kindness. it is my own fault. i know, had i chosen, that i might have done well; and yet i swear to you i tried to choose. i could not bear that you should think i did not try. for i loved you all; you must never doubt me in that, you least of all. i have always unceasingly loved, but what was my love worth? and what was i worth? i had not the manhood of a common clerk; i could not work to earn you; i have lost you now, and for your sake i could be glad of it. when you first came to my father's house--do you remember those days? i want you to--you saw the best of me then, all that was good in me. do you remember the day i took your hand and would not let it go--and the day on battersea bridge, when we were looking at a barge, and i began to tell you one of my silly stories, and broke off to say i loved you? that was the beginning, and now here is the end. when you have read this letter, you will go round and kiss them all good-bye, my father and mother, and the children, one by one, and poor uncle; and tell them all to forget me, and forget me yourself. turn the key in the door; let no thought of me return; be done with the poor ghost that pretended he was a man and stole your love. scorn of myself grinds in me as i write. i should tell you i am well and happy, and want for nothing. i do not exactly make money, or i should send a remittance; but i am well cared for, have friends, live in a beautiful place and climate, such as we have dreamed of together, and no pity need be wasted on me. in such places, you understand, it is easy to live, and live well, but often hard to make sixpence in money. explain this to my father, he will understand. i have no more to say; only linger, going out, like an unwilling guest. god in heaven bless you. think of me at the last, here, on a bright beach, the sky and sea immoderately blue, and the great breakers roaring outside on a barrier reef, where a little isle sits green with palms. i am well and strong. it is a more pleasant way to die than if you were crowding about me on a sick-bed. and yet i am dying. this is my last kiss. forgive, forget the unworthy." so far he had written, his paper was all filled, when there returned a memory of evenings at the piano, and that song, the masterpiece of love, in which so many have found the expression of their dearest thoughts. "_einst, o wunder!_" he added. more was not required; he knew that in his love's heart the context would spring up, escorted with fair images and harmony; of how all through life her name should tremble in his ears, her name be everywhere repeated in the sounds of nature; and when death came, and he lay dissolved, her memory lingered and thrilled among his elements. "once, o wonder! once from the ashes of my heart arose a blossom----" herrick and the captain finished their letters about the same time; each was breathing deep, and their eyes met and were averted as they closed the envelopes. "sorry i write so big," said the captain gruffly. "came all of a rush, when it did come." "same here," said herrick. "i could have done with a ream when i got started; but it's long enough for all the good i had to say." they were still at the addresses when the clerk strolled up, smirking and twirling his envelope, like a man well pleased. he looked over herrick's shoulder. "hullo," he said, "you ain't writing 'ome." "i am, though," said herrick; "she lives with my father.--o, i see what you mean," he added. "my real name is herrick. no more hay"--they had both used the same _alias_,--"no more hay than yours, i daresay." "clean bowled in the middle stump!" laughed the clerk. "my name's 'uish, if you want to know. everybody has a false nyme in the pacific. lay you five to three the captain 'as." "so i have too," replied the captain; "and i've never told my own since the day i tore the title-page out of my bowditch and flung the damned thing into the sea. but i'll tell it to you, boys. john davis is my name. i'm davis of the _sea ranger_." "dooce you are!" said huish. "and what was she? a pirate or a slyver?" "she was the fastest barque out of portland, maine," replied the captain; "and for the way i lost her, i might as well have bored a hole in her side with an auger." "o, you lost her, did you?" said the clerk. "'ope she was insured?" no answer being returned to this sally, huish, still brimming over with vanity and conversation, struck into another subject. "i've a good mind to read you my letter," said he. "i've a good fist with a pen when i choose, and this is a prime lark. she was a barmaid i ran across in northampton; she was a spanking fine piece, no end of style; and we cottoned at first sight like parties in the play. i suppose i spent the chynge of a fiver on that girl. well, i 'appened to remember her nyme, so i wrote to her, and told her 'ow i had got rich, and married a queen in the hislands, and lived in a blooming palace. such a sight of crammers! i must read you one bit about my opening the nigger parliament in a cocked 'at. it's really prime." the captain jumped to his feet. "that's what you did with the paper that i went and begged for you?" he roared. it was perhaps lucky for huish--it was surely in the end unfortunate for all--that he was seized just then by one of his prostrating accesses of cough; his comrades would have else deserted him, so bitter was their resentment. when the fit had passed, the clerk reached out his hand, picked up the letter, which had fallen to the earth, and tore it into fragments, stamp and all. "does that satisfy you?" he asked sullenly. "we'll say no more about it," replied davis. footnotes: [ ] _fei_ is the hill banana. [ ] by-and-by. [ ] "captain tom is coming." chapter iii the old calaboose--destiny at the door the old calaboose, in which the waifs had so long harboured, is a low, rectangular enclosure of building at the corner of a shady western avenue and a little townward of the british consulate. within was a grassy court, littered with wreckage and the traces of vagrant occupation. six or seven cells opened from the court: the doors, that had once been locked on mutinous whalermen, rotting before them in the grass. no mark remained of their old destination, except the rusty bars upon the windows. the floor of one of the cells had been a little cleared; a bucket (the last remaining piece of furniture of the three caitiffs) stood full of water by the door, a half cocoa-nut shell beside it for a drinking-cup; and on some ragged ends of mat huish sprawled asleep, his mouth open, his face deathly. the glow of the tropic afternoon, the green of sunbright foliage, stared into that shady place through door and window; and herrick, pacing to and fro on the coral floor, sometimes paused and laved his face and neck with tepid water from the bucket. his long arrears of suffering, the night's vigil, the insults of the morning, and the harrowing business of the letter, had strung him to that point when pain is almost pleasure, time shrinks to a mere point, and death and life appear indifferent. to and fro he paced like a caged brute; his mind whirling through the universe of thought and memory; his eyes, as he went, skimming the legends on the wall. the crumbling whitewash was all full of them: tahitian names, and french, and english, and rude sketches of ships under sail and men at fisticuffs. it came to him of a sudden that he too must leave upon these walls the memorial of his passage. he paused before a clean space, took the pencil out, and pondered. vanity, so hard to dislodge, awoke in him. we call it vanity at least; perhaps unjustly. rather it was the bare sense of his existence prompted him; the sense of his life, the one thing wonderful, to which he scarce clung with a finger. from his jarred nerves there came a strong sentiment of coming change; whether good or ill he could not say: change, he knew no more--change with inscrutable veiled face, approaching noiseless. with the feeling came the vision of a concert-room, the rich hues of instruments, the silent audience, and the loud voice of the symphony. "destiny knocking at the door," he thought; drew a stave on the plaster, and wrote in the famous phrase from the fifth symphony. "so," thought he, "they will know that i loved music and had classical tastes. they? he, i suppose: the unknown, kindred spirit that shall come some day and read my _memor querela_. ha, he shall have latin too!" and he added: _terque quaterque beati queis ante ora patrum_. he turned again to his uneasy pacing, but now with an irrational and supporting sense of duty done. he had dug his grave that morning; now he had carved his epitaph; the folds of the toga were composed, why should he delay the insignificant trifle that remained to do? he paused and looked long in the face of the sleeping huish, drinking disenchantment and distaste of life. he nauseated himself with that vile countenance. could the thing continue? what bound him now? had he no rights?--only the obligation to go on, without discharge or furlough, bearing the unbearable? _ich trage unerträgliches_, the quotation rose in his mind; he repeated the whole piece, one of the most perfect of the most perfect of poets; and a phrase struck him like a blow: _du, stolzes herz, du hast es ja gewollt._ where was the pride of his heart? and he raged against himself, as a man bites on a sore tooth, in a heady sensuality of scorn. "i have no pride, i have no heart, no manhood," he thought, "or why should i prolong a life more shameful than the gallows? or why should i have fallen to it? no pride, no capacity, no force. not even a bandit! and to be starving here with worse than banditti--with this trivial hell-hound!" his rage against his comrade rose and flooded him, and he shook a trembling fist at the sleeper. a swift step was audible. the captain appeared upon the threshold of the cell, panting and flushed, and with a foolish face of happiness. in his arms he carried a loaf of bread and bottles of beer; the pockets of his coat were bulging with cigars. he rolled his treasures on the floor, grasped herrick by both hands, and crowed with laughter. "broach the beer!" he shouted. "broach the beer, and glory hallelujah!" "beer?" repeated huish, struggling to his feet. "beer it is!" cried davis. "beer, and plenty of it. any number of persons can use it (like lyon's tooth-tablet) with perfect propriety and neatness.--who's to officiate?" "leave me alone for that," said the clerk. he knocked the necks off with a lump of coral, and each drank in succession from the shell. "have a weed," said davis. "it's all in the bill." "what is up?" asked herrick. the captain fell suddenly grave. "i'm coming to that," said he. "i want to speak with herrick here. you, hay--or huish, or whatever your name is--you take a weed and the other bottle, and go and see how the wind is down by the _purao_. i'll call you when you're wanted!" "hey? secrets? that ain't the ticket," said huish. "look here, my son," said the captain, "this is business, and don't you make any mistake about it. if you're going to make trouble, you can have it your own way and stop right here. only get the thing right: if herrick and i go, we take the beer. savvy?" "o, i don't want to shove my oar in," returned huish. "i'll cut right enough. give me the swipes. you can jaw till you're blue in the face for what i care. i don't think it's the friendly touch, that's all." and he shambled grumbling out of the cell into the staring sun. the captain watched him clear of the courtyard; then turned to herrick. "what is it?" asked herrick thickly. "i'll tell you," said davis. "i want to consult you. it's a chance we've got.--what's that?" he cried, pointing to the music on the wall. "what?" said the other. "o, that! it's music; it's a phrase of beethoven's i was writing up. it means destiny knocking at the door." "does it?" said the captain, rather low; and he went near and studied the inscription. "and this french?" he asked, pointing to the latin. "o, it just means i should have been luckier if i had died at home," returned herrick impatiently. "what is this business?" "destiny knocking at the door," repeated the captain; and then, looking over his shoulder, "well, mr. herrick, that's about what it comes to," he added. "what do you mean? explain yourself," said herrick. but the captain was again staring at the music. "about how long ago since you wrote up this truck?" he asked. "what does it matter?" exclaimed herrick. "i daresay half an hour." "my god, it's strange!" cried davis. "there's some men would call that accidental: not me. that----" and he drew his thick finger under the music--"that's what i call providence." "you said we had a chance," said herrick. "yes, _sir_!" said the captain, wheeling suddenly face to face with his companion. "i did so. if you're the man i take you for, we have a chance." "i don't know what you take me for," was the reply. "you can scarce take me too low." "shake hands, mr. herrick," said the captain. "i know you. you're a gentleman and a man of spirit. i didn't want to speak before that bummer there; you'll see why. but to you i'll rip it right out. i got a ship." "a ship?" cried herrick. "what ship?" "that schooner we saw this morning off the passage." "that schooner with the hospital flag?" "that's the hooker," said davis. "she's the _farallone_, hundred and sixty tons register, out of 'frisco for sydney, in california champagne. captain, mate, and one hand all died of the small-pox, same as they had round in the paumotus, i guess. captain and mate were the only white men; all the hands kanakas; seems a queer kind of outfit from a christian port. three of them left and a cook; didn't know where they were; i can't think where they were either, if you come to that; wiseman must have been on the booze, i guess, to sail the course he did. however, there _he_ was, dead; and here are the kanakas as good as lost. they bummed around at sea like the babes in the wood; and tumbled end-on upon tahiti. the consul here took charge. he offered the berth to williams; williams had never had the small-pox and backed down. that was when i came in for the letter-paper; i thought there was something up when the consul asked me to look in again; but i never let on to you fellows, so's you'd not be disappointed. consul tried m'neil; scared of small-pox. he tried capirati, that corsican, and leblue, or whatever his name is, wouldn't lay a hand on it; all too fond of their sweet lives. last of all, when there wasn't nobody else left to offer it to, he offers it to me. 'brown, will you ship captain and take her to sydney?' says he. 'let me choose my own mate and another white hand,' says i, 'for i don't hold with this kanaka crew racket; give us all two months' advance to get our clothes and instruments out of pawn, and i'll take stock to-night, fill up stores, and get to sea to-morrow before dark!' that's what i said. 'that's good enough,' says the consul, 'and you can count yourself damned lucky, brown,' says he. and he said it pretty meaningful-appearing too. however, that's all one now. i'll ship huish before the mast--of course i'll let him berth aft--and i'll ship you mate at seventy-five dollars and two months' advance." "me mate? why, i'm a landsman!" cried herrick. "guess you've got to learn," said the captain. "you don't fancy i'm going to skip and leave you rotting on the beach, perhaps? i'm not that sort, old man. and you're handy, anyway; i've been shipmates with worse." "god knows i can't refuse," said herrick. "god knows i thank you from my heart." "that's all right," said the captain. "but it ain't all." he turned aside to light a cigar. "what else is there?" asked the other, with a pang of undefinable alarm. "i'm coming to that," said davis, and then paused a little. "see here," he began, holding out his cigar between his finger and thumb, "suppose you figure up what this'll amount to. you don't catch on? well, we get two months' advance; we can't get away from papeete--our creditors wouldn't let us go--for less; it'll take us along about two months to get to sydney; and when we get there, i just want to put it to you squarely: what the better are we?" "we're off the beach at least," said herrick. "i guess there's a beach at sydney," returned the captain; "and i'll tell you one thing, mr. herrick--i don't mean to try. no, _sir_! sydney will never see me." "speak out plain," said herrick. "plain dutch," replied the captain. "i'm going to own that schooner. it's nothing new; it's done every year in the pacific. stephens stole a schooner the other day, didn't he? hayes and pease stole vessels all the time. and it's the making of the crowd of us. see here--you think of that cargo. champagne! why, it's like as if it was put up on purpose. in peru we'll sell that liquor off at the pier-head, and the schooner after it, if we can find a fool to buy her; and then light out for the mines. if you'll back me up, i stake my life i carry it through." "captain," said herrick, with a quailing voice, "don't do it!" "i'm desperate," returned davis. "i've got a chance; i may never get another. herrick, say the word: back me up; i think we've starved together long enough for that." "i can't do it. i'm sorry. i can't do it. i've not fallen as low as that," said herrick, deadly pale. "what did you say this morning?" said davis. "that you couldn't beg? it's the one thing or the other, my son." "ah, but this is the gaol!" cried herrick. "don't tempt me. it's the gaol." "did you hear what the skipper said on board that schooner?" pursued the captain. "well, i tell you he talked straight. the french have let us alone for a long time; it can't last longer; they've got their eye on us; and as sure as you live, in three weeks you'll be in gaol whatever you do. i read it in the consul's face." "you forget, captain," said the young man. "there is another way. i can die; and to say truth, i think i should have died three years ago." the captain folded his arms and looked the other in the face. "yes," said he, "yes, you can cut your throat; that's a frozen fact; much good may it do you! and where do i come in?" the light of a strange excitement came in herrick's face. "both of us," said he, "both of us together. it's not possible you can enjoy this business. come," and he reached out a timid hand, "a few strokes in the lagoon--and rest!" "i tell you, herrick, i'm 'most tempted to answer you the way the man does in the bible, and say, '_get thee behind me, satan!_'" said the captain. "what! you think i would go drown myself, and i got children starving? enjoy it? no, by god, i do not enjoy it! but it's the row i've got to hoe, and i'll hoe it till i drop right here. i have three of them, you see, two boys and the one girl, adar. the trouble is that you are not a parent yourself. i tell you, herrick, i love you," the man broke out; "i didn't take to you at first, you were so anglified and tony, but i love you now; it's a man that loves you stands here and wrestles with you. i can't go to sea with the bummer alone; it's not possible. go drown yourself, and there goes my last chance--the last chance of a poor miserable beast, earning a crust to feed his family. i can't do nothing but sail ships, and i've no papers. and here i get a chance, and you go back on me! ah, you've no family, and that's where the trouble is!" "i have indeed," said herrick. "yes, i know," said the captain, "you think so. but no man's got a family till he's got children. it's only the kids count. there's something about the little shavers ... i can't talk of them. and if you thought a cent about this father that i hear you talk of, or that sweetheart you were writing to this morning, you would feel like me. you would say, what matter laws, and god, and that? my folks are hard up, i belong to them, i'll get them bread, or, by god! i'll get them wealth, if i have to burn down london for it. that's what you would say. and i'll tell you more: your heart is saying so this living minute. i can see it in your face. you're thinking, here's poor friendship for the man i've starved along of, and as for the girl that i set up to be in love with, here's a mighty limp kind of a love that won't carry me as far as 'most any man would go for a demijohn of whisky. there's not much _ro_mance to that love, anyway; it's not the kind they carry on about in song-books. but what's the good of my carrying on talking, when it's all in your inside as plain as print? i put the question to you once for all. are you going to desert me in my hour of need?--you know if i've deserted you--or will you give me your hand, and try a fresh deal, and go home (as like as not) a millionaire? say no, and god pity me! say yes, and i'll make the little ones pray for you every night on their bended knees. 'god bless mr. herrick:' that's what they'll say, one after the other, the old girl sitting there holding stakes at the foot of the bed, and the damned little innocents ..." he broke off. "i don't often rip out about the kids," he said; "but when i do, there's something fetches loose." "captain," said herrick faintly, "is there nothing else?" "i'll prophesy if you like," said the captain with renewed vigour. "refuse this, because you think yourself too honest, and before a month's out you'll be gaoled for a sneak-thief. i give you the word fair. i can see it, herrick, if you can't; you're breaking down. don't think, if you refuse this chance, that you'll go on doing the evangelical; you're about through with your stock; and before you know where you are, you'll be right out on the other side. no, it's either this for you; or else it's caledonia. i bet you never were there, and saw those white, shaved men, in their dust-clothes and straw hats, prowling around in gangs in the lamplight at noumea; they look like wolves, and they look like preachers, and they look like the sick; huish is a daisy to the best of them. well, there's your company. they're waiting for you, herrick, and you got to go; and that's a prophecy." and as the man stood and shook through his great stature, he seemed indeed like one in whom the spirit of divination worked and might utter oracles. herrick looked at him, and looked away; it seemed not decent to spy upon such agitation; and the young man's courage sank. "you talk of going home," he objected. "we could never do that." "_we_ could," said the other. "captain brown couldn't, nor mr. hay that shipped mate with him couldn't. but what's that to do with captain davis or mr. herrick, you galoot?" "but hayes had these wild islands where he used to call," came the next fainter objection. "we have the wild islands of peru," retorted davis. "they were wild enough for stephens, no longer agone than just last year. i guess they'll be wild enough for us." "and the crew?" "all kanakas. come, i see you're right, old man. i see you'll stand by." and the captain once more offered his hand. "have it your own way then," said herrick. "i'll do it: a strange thing for my father's son. but i'll do it. i'll stand by you, man, for good or evil." "god bless you!" cried the captain, and stood silent. "herrick," he added with a smile, "i believe i'd have died in my tracks if you'd said no!" and herrick, looking at the man, half believed so also. "and now we'll go break it to the bummer," said davis. "i wonder how he'll take it," said herrick. "him? jump at it!" was the reply. chapter iv the yellow flag the schooner _farallone_ lay well out in the jaws of the pass, where the terrified pilot had made haste to bring her to her moorings and escape. seen from the beach through the thin line of shipping, two objects stood conspicuous to seaward: the little isle, on the one hand, with its palms and the guns and batteries raised forty years before in defence of queen pomare's capital; the outcast _farallone_, upon the other, banished to the threshold of the port, rolling there to her scuppers, and flaunting the plague-flag as she rolled. a few sea-birds screamed and cried about the ship; and within easy range, a man-of-war guard-boat hung off and on and glittered with the weapons of marines. the exuberant daylight and the blinding heaven of the tropics picked out and framed the pictures. a neat boat, manned by natives in uniform, and steered by the doctor of the port, put from shore towards three of the afternoon, and pulled smartly for the schooner. the fore-sheets were heaped with sacks of flour, onions, and potatoes, perched among which was huish dressed as a foremast hand; a heap of chests and cases impeded the action of the oarsmen; and in the stern, by the left hand of the doctor, sat herrick, dressed in a fresh rig of slops, his brown beard trimmed to a point, a pile of paper novels on his lap, and nursing the while between his feet a chronometer, for which they had exchanged that of the _farallone_, long since run down and the rate lost. they passed the guard-boat, exchanging hails with the boatswain's mate in charge, and drew near at last to the forbidden ship. not a cat stirred, there was no speech of man; and the sea being exceeding high outside, and the reef close to where the schooner lay, the clamour of the surf hung round her like the sound of battle. "_ohé la goëlette!_" sang out the doctor, with his best voice. instantly, from the house where they had been stowing away stores, first davis, and then the ragamuffin, swarthy crew made their appearance. "hullo, hay, that you?" said the captain, leaning on the rail. "tell the old man to lay her alongside, as if she was eggs. there's a hell of a run of sea here, and his boat's brittle." the movement of the schooner was at that time more than usually violent. now she heaved her side as high as a deep-sea steamer's, and showed the flashing of her copper; now she swung swiftly towards the boat until her scuppers gurgled. "i hope you have sea-legs," observed the doctor. "you will require them." indeed, to board the _farallone_, in that exposed position where she lay, was an affair of some dexterity. the less precious goods were hoisted roughly; the chronometer, after repeated failures, was passed gently and successfully from hand to hand; and there remained only the more difficult business of embarking huish. even that piece of dead weight (shipped a.b. at eighteen dollars, and described by the captain to the consul as an invaluable man) was at last hauled on board without mishap; and the doctor, with civil salutations, took his leave. the three co-adventurers looked at each other, and davis heaved a breath of relief. "now let's get this chronometer fixed," said he, and led the way into the house. it was a fairly spacious place; two state-rooms and a good-sized pantry opened from the main cabin; the bulk-heads were painted white, the floor laid with waxcloth. no litter, no sign of life remained; for the effects of the dead men had been disinfected and conveyed on shore. only on the table, in a saucer, some sulphur burned, and the fumes set them coughing as they entered. the captain peered into the starboard state-room, where the bed-clothes still lay tumbled in the bunk, the blanket flung back as they had flung it back from the disfigured corpse before its burial. "now, i told these niggers to tumble that truck overboard," grumbled davis. "guess they were afraid to lay hands on it. well, they've hosed the place out; that's as much as can be expected, i suppose. huish, lay on to these blankets." "see you blooming well far enough first," said huish, drawing back. "what's that?" snapped the captain. "i'll tell you, my young friend, i think you make a mistake. i'm captain here." "fat lot i care," returned the clerk. "that so?" said davis. "then you'll berth forward with the niggers! walk right out of this cabin." "o, i dessay!" said huish. "see any green in my eye? a lark's a lark." "well, now, i'll explain this business, and you'll see, once for all, just precisely how much lark there is to it," said davis. "i'm captain, and i'm going to be it. one thing of three. first, you take my orders here as cabin steward, in which case you mess with us. or, second, you refuse, and i pack you forward--and you get as quick as the word's said. or, third and last, i'll signal that man-of-war and send you ashore under arrest for mutiny." "and, of course, i wouldn't blow the gaff? o no!" replied the jeering huish. "and who's to believe you, my son?" inquired the captain. "no, _sir_! there ain't no larking about my captainising. enough said. up with these blankets." huish was no fool, he knew when he was beaten; and he was no coward either, for he stepped to the bunk, took the infected bed-clothes fairly in his arms, and carried them out of the house without a check or tremor. "i was waiting for the chance," said davis to herrick. "i needn't do the same with you, because you understand it for yourself." "are you going to berth here?" asked herrick, following the captain into the state-room, where he began to adjust the chronometer in its place at the bed-head. "not much!" replied he. "i guess i'll berth on deck. i don't know as i'm afraid, but i've no immediate use for confluent small-pox." "i don't know that i'm afraid either," said herrick. "but the thought of these two men sticks in my throat; that captain and mate dying here, one opposite to the other. it's grim. i wonder what they said last?" "wiseman and wishart?" said the captain. "probably mighty small potatoes. that's a thing a fellow figures out for himself one way, and the real business goes quite another. perhaps wiseman said, 'here, old man, fetch up the gin, i'm feeling powerful rocky.' and perhaps wishart said, 'o, hell!'" "well, that's grim enough," said herrick. "and so it is," said davis.--"there; there's that chronometer fixed. and now it's about time to up anchor and clear out." he lit a cigar and stepped on deck. "here, you! what's _your_ name?" he cried to one of the hands, a lean-flanked, clean-built fellow from some far western island, and of a darkness almost approaching to the african. "sally day," replied the man. "devil it is," said the captain, "didn't know we had ladies on board.--well, sally, oblige me by hauling down that rag there. i'll do the same for you another time." he watched the yellow bunting as it was eased past the cross-trees and handed down on deck. "you'll float no more on this ship," he observed. "muster the people aft, mr. hay," he added, speaking unnecessarily loud, "i've a word to say to them." it was with a singular sensation that herrick prepared for the first time to address a crew. he thanked his stars indeed that they were natives. but even natives, he reflected, might be critics too quick for such a novice as himself; they might perceive some lapse from that precise and cut-and-dry english which prevails on board a ship; it was even possible they understood no other; and he racked his brain, and overhauled his reminiscences of sea romance, for some appropriate words. "here, men! tumble aft!" he said. "lively now! all hands aft!" they crowded in the alleyway like sheep. "here they are, sir," said herrick. for some time the captain continued to face the stern; then turned with ferocious suddenness on the crew, and seemed to enjoy their shrinking. "now," he said, twisting his cigar in his mouth and toying with the spokes of the wheel. "i'm captain brown. i command this ship. this is mr. hay, first officer. the other white man is cabin steward, but he'll stand watch and do his trick. my orders shall be obeyed smartly. you savvy, '_smartly_'? there shall be no growling about the kaikai, which will be above allowance. you'll put a handle to the mate's name, and tack on 'sir' to every order i give you. if you're smart and quick, i'll make this ship comfortable for all hands." he took the cigar out of his mouth. "if you're not," he added, in a roaring voice, "i'll make it a floating hell.--now, mr. hay, we'll pick watches, if you please." "all right," said herrick. "you will please use 'sir' when you address me, mr. hay," said the captain. "i'll take the lady. step to starboard, sally." and then he whispered in herrick's ear, "take the old man." "i'll take you, there," said herrick. "what's your name?" said the captain. "what's that you say? o, that's not english; i'll have none of your highway gibberish on my ship. we'll call you old uncle ned, because you've got no wool on the top of your head, just the place where the wool ought to grow. step to port, uncle. don't you hear mr. hay has picked you? then i'll take the white man. white man, step to starboard. now, which of you two is the cook? you? then mr. hay takes your friend in the blue dungaree. step to port, dungaree, there, we know who we all are: dungaree, uncle ned, sally day, white man, and cook. all f.f.v.'s i guess. and now, mr. hay, we'll up anchor, if you please." "for heaven's sake, tell me some of the words," whispered herrick. an hour later the _farallone_ was under all plain sail, the rudder hard a-port, and the cheerfully-clanking windlass had brought the anchor home. "all clear, sir," cried herrick from the bow. the captain met her with the wheel, as she bounded like a stag from her repose, trembling and bending to the puffs. the guard-boat gave a parting hail, the wake whitened and ran out; the _farallone_ was under weigh. her berth had been close to the pass. even as she forged ahead davis slewed her for the channel between the pier-ends of the reef, the breakers sounding and whitening to either hand. straight through the narrow band of blue she shot to seaward; and the captain's heart exulted as he felt her tremble underfoot, and (looking back over the taffrail) beheld the roofs of papeete changing position on the shore and the island mountains rearing higher in the wake. but they were not yet done with the shore and the horror of the yellow flag. about midway of the pass there was a cry and a scurry, a man was seen to leap upon the rail, and, throwing his arms over his head, to stoop and plunge into the sea. "steady as she goes," the captain cried, relinquishing the wheel to huish. the next moment he was forward in the midst of the kanakas, belaying-pin in hand. "anybody else for shore?" he cried, and the savage trumpeting of his voice, no less than the ready weapon in his hand, struck fear in all. stupidly they stared after their escaped companion, whose black head was visible upon the water, steering for the land. and the schooner meanwhile slipped like a racer through the pass, and met the long sea of the open ocean with a souse of spray. "fool that i was, not to have a pistol ready!" exclaimed davis. "well, we go to sea short-handed; we can't help that. you have a lame watch of it, mr. hay." "i don't see how we are to get along," said herrick. "got to," said the captain. "no more tahiti for me." both turned instinctively and looked astern. the fair island was unfolding mountain-top on mountain-top; eimeo, on the port board, lifted her splintered pinnacles; and still the schooner raced to the open sea. "think!" cried the captain, with a gesture, "yesterday morning i danced for my breakfast like a poodle dog." chapter v the cargo of champagne the ship's head was laid to clear eimeo to the north, and the captain sat down in the cabin, with a chart, a ruler, and an epitome. "east a half no'the," said he, raising his face from his labours. "mr. hay, you'll have to watch your dead reckoning; i want every yard she makes on every hair's-breadth of a course. i'm going to knock a hole right straight through the paumotus, and that's always a near touch. now, if this south east trade ever blew out of the s.e., which it don't, we might hope to lie within half a point of our course. say we lie within a point of it. that'll just about weather fakarava. yes, sir, that's what we've got to do, if we tack for it. brings us through this slush of little islands in the cleanest place: see?" and he showed where his ruler intersected the wide-lying labyrinth of the dangerous archipelago. "i wish it was night, and i could put her about right now; we're losing time and easting. well, we'll do our best. and if we don't fetch peru, we'll bring up to ecuador. all one, i guess. depreciated dollars down, and no questions asked. a remarkable fine institootion, the south american don." tahiti was already some way astern, the diadem rising from among broken mountains--eimeo was already close aboard, and stood black and strange against the golden splendour of the west--when the captain took his departure from the two islands, and the patent log was set. some twenty minutes later, sally day, who was continually leaving the wheel to peer in at the cabin clock, announced in a shrill cry "fo' bell," and the cook was to be seen carrying the soup into the cabin. "i guess i'll sit down and have a pick with you," said davis to herrick. "by the time i've done it'll be dark, and we'll clap the hooker on the wind for south america." in the cabin at one corner of the table, immediately below the lamp, and on the lee side of a bottle of champagne, sat huish. "what's this? where did that come from?" asked the captain. "it's fizz, and it came from the after-'old, if you want to know," said huish, and drained his mug. "this'll never do," exclaimed davis, the merchant seaman's horror of breaking into cargo showing incongruously forth on board that stolen ship. "there was never any good came of games like that." "you byby!" said huish. "a fellow would think (to 'ear him) we were on the square! and look 'ere, you've put this job up 'ansomely for me, 'aven't you? i'm to go on deck and steer, while you two sit and guzzle, and i'm to go by a nickname, and got to call you 'sir' and 'mister.' well, you look here, my bloke: i'll have fizz _ad lib._, or it won't wash. i tell you that. and you know mighty well, you ain't got any man-of-war to signal now." davis was staggered. "i'd give fifty dollars this had never happened," he said weakly. "well, it _'as_ 'appened, you see," returned huish. "try some; it's devilish good." the rubicon was crossed without another struggle. the captain filled a mug and drank. "i wish it was beer," he said with a sigh. "but there's no denying it's the genuine stuff and cheap at the money. now, huish, you clear out and take your wheel." the little wretch had gained a point, and he was gay. "ay, ay, sir," said he, and left the others to their meal. "pea-soup!" exclaimed the captain. "blamed if i thought i should taste pea-soup again!" herrick sat inert and silent. it was impossible after these months of hopeless want to smell the rough, high-spiced sea victuals without lust, and his mouth watered with desire of the champagne. it was no less impossible to have assisted at the scene between huish and the captain, and not to perceive, with sudden bluntness, the gulf where he had fallen. he was a thief among thieves. he said it to himself. he could not touch the soup. if he had moved at all, it must have been to leave the table, throw himself overboard, and drown--an honest man. "here," said the captain, "you look sick, old man; have a drop of this." the champagne creamed and bubbled in the mug; its bright colour, its lively effervescence, seized his eye. "it is too late to hesitate," he thought; his hand took the mug instinctively; he drank, with unquenchable pleasure and desire of more; drained the vessel dry, and set it down with sparkling eyes. "there is something in life after all!" he cried. "i had forgot what it was like. yes, even this is worth while. wine, food, dry clothes--why, they're worth dying, worth hanging for! captain, tell me one thing: why aren't all the poor folk foot-pads?" "give it up," said the captain. "they must be damned good," cried herrick. "there's something here beyond me. think of that calaboose! suppose we were sent suddenly back." he shuddered as stung by a convulsion, and buried his face in his clutching hands. "here, what's wrong with you?" cried the captain. there was no reply; only herrick's shoulders heaved, so that the table was shaken. "take some more of this. here, drink this. i order you to. don't start crying when you're out of the wood." "i'm not crying," said herrick, raising his face and showing his dry eyes. "it's worse than crying. it's the horror of that grave that we've escaped from." "come now, you tackle your soup; that'll fix you," said davis kindly. "i told you you were all broken up. you couldn't have stood out another week." "that's the dreadful part of it!" cried herrick. "another week and i'd have murdered some one for a dollar! god! and i know that? and i'm still living? it's some beastly dream." "quietly, quietly! quietly does it, my son. take your pea-soup. food, that's what you want," said davis. the soup strengthened and quieted herrick's nerves; another glass of wine, and a piece of pickled pork and fried banana completed what the soup began; and he was able once more to look the captain in the face. "i didn't know i was so much run down," he said. "well," said davis, "you were as steady as a rock all day: now you've had a little lunch, you'll be as steady as a rock again." "yes," was the reply, "i'm steady enough now, but i'm a queer kind of a first officer." "shucks!" cried the captain. "you've only got to mind the ship's course, and keep your slate to half a point. a babby could do that, let alone a college graduate like you. there ain't nothing _to_ sailoring, when you come to look it in the face. and now we'll go and put her about. bring the slate; we'll have to start our dead reckoning right away." the distance run since the departure was read off the log by the binnacle light and entered on the slate. "ready about," said the captain. "give me the wheel, white man, and you stand by the mainsheet. boom tackle, mr. hay, please, and then you can jump forward and attend head sails." "ay, ay, sir," responded herrick. "all clear forward?" asked davis. "all clear, sir." "hard a-lee!" cried the captain. "haul in your slack as she comes," he called to huish. "haul in your slack, put your back into it; keep your feet out of the coils." a sudden blow sent huish flat along the deck, and the captain was in his place. "pick yourself up and keep the wheel hard over!" he roared. "you wooden fool, you wanted to get killed, i guess. draw the jib," he cried a moment later; and then to huish, "give me the wheel again, and see if you can coil that sheet." but huish stood and looked at davis with an evil countenance. "do you know you struck me?" said he. "do you know i saved your life?" returned the other, not deigning to look at him, his eyes travelling instead between the compass and the sails. "where would you have been if that boom had swung out and you bundled in the slack? no, _sir_, we'll have no more of you at the mainsheet. seaport towns are full of mainsheet-men; they hop upon one leg, my son, what's left of them, and the rest are dead. (set your boom tackle, mr. hay.) struck you, did i? lucky for you i did." "well," said huish slowly, "i dessay there may be somethink in that. 'ope there is." he turned his back elaborately on the captain, and entered the house, where the speedy explosion of a champagne cork showed he was attending to his comfort. herrick came aft to the captain. "how is she doing now?" he asked. "east and by no'the a half no'the," said davis. "it's about as good as i expected." "what'll the hands think of it?" said herrick. "o, they don't think. they ain't paid to," says the captain. "there was something wrong, was there not? between you and--" herrick paused. "that's a nasty little beast; that's a biter," replied the captain, shaking his head. "but so long as you and me hang in, it don't matter." herrick lay down in the weather alleyway; the night was cloudless, the movement of the ship cradled him, he was oppressed besides by the first generous meal after so long a time of famine; and he was recalled from deep sleep by the voice of davis singing out: "eight bells!" he rose stupidly and staggered aft, where the captain gave him the wheel. "by the wind," said the captain. "it comes a little puffy; when you get a heavy puff, steal all you can to windward, but keep her a good full." he stepped towards the house, paused and hailed the forecastle. "got such a thing as a concertina forward?" said he. "bully for you, uncle ned. fetch it aft, will you?" the schooner steered very easy; and herrick, watching the moon-whitened sails, was overpowered by drowsiness. a sharp report from the cabin startled him; a third bottle had been opened; and herrick remembered the _sea ranger_ and fourteen island group. presently the notes of the accordion sounded, and then the captain's voice: "o honey, with our pockets full of money, we will trip, trip, trip, we will trip it on the quay, and i will dance with kate, and tom will dance with sall, when we're all back from south amerikee." so it went to its quaint air; and the watch below lingered and listened by the forward door, and uncle ned was to be seen in the moonlight nodding time; and herrick smiled at the wheel, his anxieties a while forgotten. song followed song; another cork exploded; there were voices raised, as though the pair in the cabin were in disagreement: and presently it seemed the breach was healed; for it was now the voice of huish that struck up, to the captain's accompaniment:-- "up in a balloon, boys, up in a balloon, all among the little stars and round about the moon." a wave of nausea overcame herrick at the wheel. he wondered why the air, the words (which were yet written with a certain knack), and the voice and accent of the singer, should all jar his spirit like a file on a man's teeth. he sickened at the thought of his two comrades drinking away their reason upon stolen wine, quarrelling and hiccupping and waking up, while the doors of a prison yawned for them in the near future. "shall i have sold my honour for nothing?" he thought; and a heat of rage and resolution glowed in his bosom--rage against his comrades--resolution to carry through this business if it might be carried; pluck profit out of shame, since the shame at least was now inevitable; and come home, home from south america--how did the song go?--"with his pockets full of money." "o honey, with our pockets full of money, we will trip, trip, trip, we will trip it on the quay": so the words ran in his head; and the honey took on visible form, the quay rose before him and he knew it for the lamp-lit embankment, and he saw the lights of battersea bridge bestride the sullen river. all through the remainder of his trick he stood entranced, reviewing the past. he had been always true to his love, but not always sedulous to recall her. in the growing calamity of his life, she had swum more distant, like the moon in mist. the letter of farewell, the dishonourable hope that had surprised and corrupted him in his distress, the changed scene, the sea, the night and the music--all stirred him to the roots of manhood. "i _will_ win her," he thought, and ground his teeth. "fair or foul, what matters if i win her?" "fo' bell, matey. i think um fo' bell"--he was suddenly recalled by these words in the voice of uncle ned. "look in at the clock, uncle," said he. he would not look himself, from horror of the tipplers. "him past, matey," repeated the hawaiian. "so much the better for you, uncle," he replied; and he gave up the wheel, repeating the directions as he had received them. he took two steps forward and remembered his dead reckoning. "how has she been heading?" he thought; and he flushed from head to foot. he had not observed or had forgotten; here was the old incompetence; the slate must be filled up by guess. "never again!" he vowed to himself in silent fury, "never again. it shall be no fault of mine if this miscarry." and for the remainder of his watch he stood close by uncle ned, and read the face of the compass as perhaps he had never read a letter from his sweetheart. all the time, and spurring him to the more attention, song, loud talk, fleering laughter, and the occasional popping of a cork, reached his ears from the interior of the house; and when the port watch was relieved at midnight, huish and the captain appeared upon the quarter-deck with flushed faces and uneven steps, the former laden with bottles, the latter with two tin mugs. herrick silently passed them by. they hailed him in thick voices, he made no answer; they cursed him for a churl, he paid no heed although his belly quivered with disgust and rage. he closed-to the door of the house behind him, and cast himself on a locker in the cabin--not to sleep, he thought--rather to think and to despair. yet he had scarce turned twice on his uneasy bed, before a drunken voice hailed him in the ear, and he must go on deck again to stand the morning watch. the first evening set the model for those that were to follow. two cases of champagne scarce lasted the four-and-twenty hours, and almost the whole was drunk by huish and the captain. huish seemed to thrive on the excess; he was never sober, yet never wholly tipsy; the food and the sea air had soon healed him of his disease, and he began to lay on flesh. but with davis things went worse. in the drooping, unbuttoned figure that sprawled all day upon the lockers, tippling and reading novels; in the fool who made of the evening watch a public carouse on the quarter-deck, it would have been hard to recognise the vigorous seaman of papeete roads. he kept himself reasonably well in hand till he had taken the sun and yawned and blotted through his calculations; but from the moment he rolled up the chart, his hours were passed in slavish self-indulgence or in hoggish slumber. every other branch of his duty was neglected, except maintaining a stern discipline about the dinner-table. again and again herrick would hear the cook called aft, and see him running with fresh tins, or carrying away again a meal that had been totally condemned. and the more the captain became sunk in drunkenness, the more delicate his palate showed itself. once, in the forenoon, he had a bo'sun's chair rigged over the rail, stripped to his trousers, and went overboard with a pot of paint. "i don't like the way this schooner's painted," said he, "and i've taken a down upon her name." but he tired of it in half an hour, and the schooner went on her way with an incongruous patch of colour on the stern, and the word _farallone_ part obliterated and part looking through. he refused to stand either the middle or morning watch. it was fine-weather sailing, he said; and asked, with a laugh, "who ever heard of the old man standing watch himself?" to the dead reckoning which herrick still tried to keep, he would pay not the least attention nor afford the least assistance. "what do we want of dead reckoning?" he asked. "we get the sun all right, don't we?" "we mayn't get it always, though," objected herrick. "and you told me yourself you weren't sure of the chronometer." "o, there ain't no flies in the chronometer!" cried davis. "oblige me so far, captain," said herrick stiffly. "i am anxious to keep this reckoning, which is a part of my duty; i do not know what to allow for current, nor how to allow for it. i am too inexperienced; and i beg of you to help me." "never discourage zealous officer," said the captain, unrolling the chart again, for herrick had taken him over his day's work, and while he was still partly sober. "here it is: look for yourself; anything from west to west no'thewest, and anyways from five to twenty-five miles. that's what the a'm'ralty chart says; i guess you don't expect to get on ahead of your own britishers?" "i am trying to do my duty, captain brown," said herrick, with a dark flush, "and i have the honour to inform you that i don't enjoy being trifled with." "what in thunder do you want?" roared davis. "go and look at the blamed wake. if you're trying to do your duty, why don't you go and do it? i guess it's no business of mine to go and stick my head over the ship's rump? i guess it's yours. and i'll tell you what it is, my fine fellow, i'll trouble you not to come the dude over me. you're insolent, that's what's wrong with you. don't you crowd me, mr. herrick, esquire." herrick tore up his papers, threw them on the floor, and left the cabin. "he's turned a bloomin' swot, ain't he?" sneered huish. "he thinks himself too good for his company, that's what ails herrick, esquire," raged the captain. "he thinks i don't understand when he comes the heavy swell. won't sit down with us, won't he? won't say a civil word? i'll serve the son of a gun as he deserves. by god, huish, i'll show him whether he's too good for john davis!" "easy with the names, cap'," said huish, who was always the more sober. "easy over the stones, my boy!" "all right, i will. you're a good sort, huish. i didn't take to you at first, but i guess you're right enough. let's open another bottle," said the captain; and that day, perhaps because he was excited by the quarrel, he drank more recklessly, and by four o'clock was stretched insensible upon the locker. herrick and huish supped alone, one after the other, opposite his flushed and snorting body. and if the sight killed herrick's hunger, the isolation weighed so heavily on the clerk's spirit that he was scarce risen from table ere he was currying favour with his former comrade. herrick was at the wheel when he approached, and huish leaned confidentially across the binnacle. "i say, old chappie," he said, "you and me don't seem to be such pals somehow." herrick gave her a spoke or two in silence; his eye, as it skirted from the needle to the luff of the foresail, passed the man by without speculation. but huish was really dull, a thing he could support with difficulty, having no resources of his own. the idea of a private talk with herrick, at this stage of their relations, held out particular inducements to a person of his character. drink besides, as it renders some men hyper-sensitive, made huish callous. and it would almost have required a blow to make him quit his purpose. "pretty business, ain't it?" he continued; "dyvis on the lush? must say i thought you gave it 'im a to-day. he didn't like it a bit; took on hawful after you were gone.--' 'ere,' says i, ''old on, easy on the lush,' i says. ''errick was right and you know it. give 'im a chanst,' i says.--' 'uish,' sezee, 'don't you gimme no more of your jaw, or i'll knock your bloomin' eyes out.' well, wot can i do, 'errick? but i tell you, i don't 'arf like it. it looks to me like the _sea rynger_ over again." still herrick was silent. "do you 'ear me speak?" asked huish sharply. "you're pleasant, ain't you?" "stand away from that binnacle," said herrick. the clerk looked at him long and straight and black; his figure seemed to writhe like that of a snake about to strike; then he turned on his heel, went back to the cabin and opened a bottle of champagne. when eight bells were cried he slept on the floor beside the captain on the locker; and of the whole starboard watch only sally day appeared upon the summons. the mate proposed to stand the watch with him, and let uncle ned lie down; it would make twelve hours on deck, and probably sixteen, but in this fair-weather sailing he might safely sleep between his tricks of wheel, leaving orders to be called on any sign of squalls. so far he could trust the men, between whom and himself a close relation had sprung up. with uncle ned he held long nocturnal conversations, and the old man told him his simple and hard story of exile, suffering, and injustice among cruel whites. the cook, when he found herrick messed alone, produced for him unexpected and sometimes unpalatable dainties, of which he forced himself to eat. and one day, when he was forward, he was surprised to feel a caressing hand run down his shoulder, and to hear the voice of sally day crooning in his ear: "you gootch man!" he turned, and, choking down a sob, shook hands with the negrito. they were kindly, cheery, childish souls. upon the sunday each brought forth his separate bible--for they were all men of alien speech, even to each other, and sally day communicated with his mates in english only; each read or made-believe to read his chapter, uncle ned with spectacles on his nose; and they would all join together in the singing of missionary hymns. it was thus a cutting reproof to compare the islanders and the whites aboard the _farallone_. shame ran in herrick's blood to remember what employment he was on, and to see these poor souls--and even sally day, the child of cannibals, in all likelihood a cannibal himself--so faithful to what they knew of good. the fact that he was held in grateful favour by these innocents served like blinders to his conscience, and there were times when he was inclined, with sally day, to call himself a good man. but the height of his favour was only now to appear. with one voice, the crew protested; ere herrick knew what they were doing, the cook was aroused and came a willing volunteer; all hands clustered about their mate with expostulations and caresses; and he was bidden to lie down and take his customary rest without alarm. "he tell you tlue," said uncle ned. "you sleep. evely man hea he do all light. evely man he like you too much." herrick struggled, and gave way; choked upon some trivial words of gratitude; and walked to the side of the house, against which he leaned, struggling with emotion. uncle ned presently followed him and begged him to lie down. "it's no use, uncle ned," he replied. "i couldn't sleep. i'm knocked over with all your goodness." "ah, no call me uncle ned no mo'!" cried the old man. "no my name! my name taveeta, all-e-same taveeta king of islael. wat for he call that hawaii? i think no savvy nothing--all-e-same wise-a-mana." it was the first time the name of the late captain had been mentioned, and herrick grasped the occasion. the reader shall be spared uncle ned's unwieldy dialect, and learn in less embarrassing english the sum of what he now communicated. the ship had scarce cleared the golden gates before the captain and mate had entered on a career of drunkenness, which was scarcely interrupted by their malady and only closed by death. for days and weeks they had encountered neither land nor ship; and seeing themselves lost on the huge deep with their insane conductors, the natives had drunk deep of terror. at length they made a low island and went in; and wiseman and wishart landed in the boat. there was a great village, a very fine village, and plenty kanakas in that place; but all mighty serious; and from every here and there in the back parts of the settlement, taveeta heard the sounds of island lamentation. "i no savvy _talk_ that island," said he. "i savvy hear um _cly_. i think, hum! too many people die here!" but upon wiseman and wishart the significance of that barbaric keening was lost. full of bread and drink, they rollicked along unconcerned, embraced the girls, who had scarce energy to repel them, took up and joined (with drunken voices) in the death-wail, and at last (on what they took to be an invitation) entered under the roof of a house in which was a considerable concourse of people sitting silent. they stooped below the eaves, flushed and laughing; within a minute they came forth again with changed faces and silent tongues; and as the press severed to make way for them, taveeta was able to perceive, in the deep shadow of the house, the sick man raising from his mat a head already defeatured by disease. the two tragic triflers fled without hesitation for their boat, screaming on taveeta to make haste; they came aboard with all speed of oars, raised anchor and crowded sail upon the ship with blows and curses, and were at sea again--and again drunk--before sunset. a week after, and the last of the two had been committed to the deep. herrick asked taveeta where that island was, and he replied that, by what he gathered of folks' talk as they went up together from the beach, he supposed it must be one of the paumotus. this was in itself probable enough, for the dangerous archipelago had been swept that year from east to west by devastating small-pox; but herrick thought it a strange course to lie from sydney. then he remembered the drink. "were they not surprised when they made the island?" he asked. "wise-a-mana he say, 'damn! what this?'" was the reply. "o, that's it, then," said herrick. "i don't believe they knew where they were." "i think so too," said uncle ned. "i think no savvy. this one mo' betta," he added, pointing to the house, where the drunken captain slumbered: "take-a-sun all-e-time." the implied last touch completed herrick's picture of the life and death of his two predecessors; of their prolonged, sordid, sodden sensuality as they sailed, they knew not whither, on their last cruise. he held but a twinkling and unsure belief in any future state; the thought of one of punishment he derided; yet for him (as for all) there dwelt a horror about the end of the brutish man. sickness fell upon him at the image thus called up; and when he compared it with the scene in which he himself was acting, and considered the doom that seemed to brood upon the schooner, a horror that was almost superstitious fell upon him. and yet the strange thing was, he did not falter. he who had proved his incapacity in so many fields, being now falsely placed amid duties which he did not understand, without help, and it might be said without countenance, had hitherto surpassed expectation; and even the shameful misconduct and shocking disclosures of that night seemed but to nerve and strengthen him. he had sold his honour; he vowed it should not be in vain; "it shall be no fault of mine if this miscarry," he repeated. and in his heart he wondered at himself. living rage no doubt supported him; no doubt also, the sense of the last cast, of the ships burned, of all doors closed but one, which is so strong a tonic to the merely weak, and so deadly a depressent to the merely cowardly. for some time the voyage went otherwise well. they weathered fakarava with one board; and the wind holding well to the southward, and blowing fresh, they passed between ranaka and ratiu, and ran some days north-east by east-half-east under the lee of takume and honden, neither of which they made. in about ° south, and between ° and ° west, it fell a dead calm, with rather a heavy sea. the captain refused to take in sail, the helm was lashed, no watch was set, and the _farallone_ rolled and banged for three days, according to observation, in almost the same place. the fourth morning, a little before day, a breeze sprang up and rapidly freshened. the captain had drunk hard the night before; he was far from sober when he was roused; and when he came on deck for the first time at half-past eight, it was plain he had already drunk deep again at breakfast. herrick avoided his eye; and resigned the deck with indignation to a man more than half-seas-over. by the loud commands of the captain and the singing out of fellows at the ropes, he could judge from the house that sail was being crowded on the ship; relinquished his half-eaten breakfast; and came on deck again, to find the main and the jib topsails set, and both watches and the cook turned out to hand the staysail. the _farallone_ lay already far over; the sky was obscured with misty scud; and from the windward an ominous squall came flying up, broadening and blackening as it rose. fear thrilled in herrick's vitals. he saw death hard by; and if not death, sure ruin. for if the _farallone_ lived through the coming squall, she must surely be dismasted. with that their enterprise was at an end, and they themselves bound prisoners to the very evidence of their crime. the greatness of the peril and his own alarm sufficed to silence him. pride, wrath, and shame raged without issue in his mind; and he shut his teeth and folded his arms close. the captain sat in the boat to windward, bellowing orders and insults, his eyes glazed, his face deeply congested; a bottle set between his knees, a glass in his hand half empty. his back was to the squall, and he was at first intent upon the setting of the sail. when that was done, and the great trapezium of canvas had begun to draw and to trail the lee-rail of the _farallone_ level with the foam, he laughed out an empty laugh, drained his glass, sprawled back among the lumber in the boat, and fetched out a crumpled novel. herrick watched him, and his indignation glowed red-hot. he glanced to windward where the squall already whitened the near sea and heralded its coming with a singular and dismal sound. he glanced at the steersman, and saw him clinging to the spokes with a face of a sickly blue. he saw the crew were running to their stations without orders. and it seemed as if something broke in his brain; and the passion of anger, so long restrained, so long eaten in secret, burst suddenly loose and shook him like a sail. he stepped across to the captain, and smote his hand heavily on the drunkard's shoulder. "you brute," he said, in a voice that tottered, "look behind you!" "wha's that?" cried davis, bounding in the boat and upsetting the champagne. "you lost the _sea ranger_ because you were a drunken sot," said herrick. "now you're going to lose the _farallone_. you're going to drown here the same way as you drowned others, and be damned. and your daughter shall walk the streets, and your sons be thieves like their father." for the moment the words struck the captain white and foolish. "my god!" he cried, looking at herrick as upon a ghost; "my god, herrick!" "look behind you, then!" reiterated the assailant. the wretched man, already partly sobered, did as he was told, and in the same breath of time leaped to his feet. "down staysail!" he trumpeted. the hands were thrilling for the order, and the great sail came with a run, and fell half overboard among the racing foam. "jib top-sail halyards! let the stays'l be," he said again. but before it was well uttered, the squall shouted aloud and fell, in a solid mass of wind and rain commingled, on the _farallone_; and she stooped under the blow, and lay like a thing dead. from the mind of herrick reason fled; he clung in the weather rigging, exulting; he was done with life, and he gloried in the release; he gloried in the wild noises of the wind and the choking onslaught of the rain; he gloried to die so, and now, amid this coil of the elements. and meanwhile, in the waist, up to his knees in water--so low the schooner lay--the captain was hacking at the fore-sheet with a pocket-knife. it was a question of seconds, for the _farallone_ drank deep of the encroaching seas. but the hand of the captain had the advance; the foresail boom tore apart the last strands of the sheet and crashed to lee-ward; the _farallone_ leaped up into the wind and righted; and the peak and throat halyards, which had long been let go, began to run at the same instant. for some ten minutes more she careered under the impulse of the squall; but the captain was now master of himself and of his ship, and all danger at an end. and then, sudden as a trick-change upon the stage, the squall blew by, the wind dropped into light airs, the sun beamed forth again upon the tattered schooner; and the captain, having secured the foresail boom and set a couple of hands to the pump, walked aft, sober, a little pale, and with the sodden end of a cigar still stuck between his teeth even as the squall had found it. herrick followed him; he could scarce recall the violence of his late emotions, but he felt there was a scene to go through, and he was anxious and even eager to go through with it. the captain, turning at the house-end, met him face to face, and averted his eyes. "we've lost the two tops'ls, and the stays'l," he gabbled. "good business we didn't lose any sticks. i guess you think we're all the better without the kites." "that's not what i'm thinking," said herrick, in a voice strangely quiet, that yet echoed confusion in the captain's mind. "i know that," he cried, holding up his hand. "i know what you're thinking. no use to say it now. i'm sober." "i have to say it, though," returned herrick. "hold on, herrick; you've said enough," said davis. "you've said what i would take from no man breathing but yourself; only i know it's true." "i have to tell you, captain brown," pursued herrick, "that i resign my position as mate. you can put me in irons or shoot me, as you please; i will make no resistance--only, i decline in any way to help or to obey you; and i suggest you should put mr. huish in my place. he will make a worthy first officer to your captain, sir." he smiled, bowed, and turned to walk forward. "where are you going, herrick?" cried the captain, detaining him by the shoulder. "to berth forward with the men, sir," replied herrick, with the same hateful smile. "i've been long enough aft here with you--gentlemen." "you're wrong there," said davis. "don't you be too quick with me; there ain't nothing wrong but the drink--it's the old story, man! let me get sober once and then you'll see," he pleaded. "excuse me, i desire to see no more of you," said herrick. the captain groaned aloud. "you know what you said about my children?" he broke out. "by rote. in case you wish me to say it to you again?" asked herrick. "don't!" cried the captain clapping his hands to his ears. "don't make me kill a man i care for! herrick, if you see me put a glass to my lips again till we're ashore, i give you leave to put a bullet through me; i beg you to do it! you're the only man aboard whose carcase is worth losing; do you think i don't know that? do you think i ever went back on you? i always knew you were in the right of it--drunk or sober, i knew that. what do you want?--an oath? man, you're clever enough to see that this is sure-enough earnest." "do you mean there shall be no more drinking?" asked herrick, "neither by you nor huish? that you won't go on stealing my profits and drinking my champagne that i gave my honour for? and that you'll attend to your duties, and stand watch and watch, and bear your proper share of the ship's work, instead of leaving it all on the shoulders of a landsman, and making yourself the butt and scoff of native seamen? is that what you mean? if it is, be so good as to say it categorically." "you put these things in a way hard for a gentleman to swallow," said the captain. "you wouldn't have me say i was ashamed of myself? trust me this once; i'll do the square thing, and there's my hand on it." "well, i'll try it once," said herrick. "fail me again...." "no more now!" interrupted davis. "no more, old man! enough said. you've a riling tongue when your back's up, herrick. just be glad we're friends again, the same as what i am; and go tender on the raws; i'll see as you don't repent it. we've been mighty near death this day--don't say whose fault it was!--pretty near hell, too, i guess. we're in a mighty bad line of life, us two, and ought to go easy with each other." he was maundering; yet it seemed as if he were maundering with some design, beating about the bush of some communication that he feared to make, or perhaps only talking against time in terror of what herrick might say next. but herrick had now spat his venom; his was a kindly nature, and, content with his triumph, he had now begun to pity. with a few soothing words he sought to conclude the interview, and proposed that they should change their clothes. "not right yet," said davis. "there's another thing i want to tell you first. you know what you said about my children? i want to tell you why it hit me so hard; i kind of think you'll feel bad about it too. it's about my little adar. you hadn't ought to have quite said that--but of course i know you didn't know. she--she's dead, you see." "why, davis!" cried herrick. "you've told me a dozen times she was alive! clear your head, man! this must be the drink." "no, _sir_," said davis. "she's dead. died of a bowel complaint. that was when i was away in the brig _oregon_. she lies in portland, maine. 'adar, only daughter of captain john davis and mariar his wife, aged five.' i had a doll for her on board. i never took the paper off'n that doll, herrick; it went down the way it was with the _sea ranger_, that day i was damned." the captain's eyes were fixed on the horizon; he talked with an extraordinary softness, but a complete composure; and herrick looked upon him with something that was almost terror. "don't think i'm crazy neither," resumed davis. "i've all the cold sense that i know what to do with. but i guess a man that's unhappy's like a child; and this is a kind of a child's game of mine. i never could act up to the plain-cut truth, you see; so i pretend. and i warn you square; as soon as we're through with this talk, i'll start in again with the pretending. only, you see, she can't walk no streets," added the captain, "couldn't even make out to live and get that doll!" herrick laid a tremulous hand upon the captain's shoulder. "don't do that!" cried davis, recoiling from the touch. "can't you see i'm all broken up the way it is? come along, then; come along, old man; you can put your trust in me right through; come along and get dry clothes." they entered the cabin, and there was huish on his knees prizing open a case of champagne. "'vast there!" cried the captain. "no more of that. no more drinking on this ship." "turned teetotal, 'ave you?" inquired huish. "i'm agreeable. about time, eh? bloomin' nearly lost another ship, i fancy." he took out a bottle and began calmly to burst the wire with the spike of a corkscrew. "do you hear me speak?" cried davis. "i suppose i do. you speak loud enough," said huish. "the trouble is that i don't care." herrick plucked the captain's sleeve. "let him free now," he said. "we've had all we want this morning." "let him have it, then," said the captain. "it's his last." by this time the wire was open, the string was cut, the head of gilded paper was torn away; and huish waited, mug in hand, expecting the usual explosion. it did not follow. he eased the cork with his thumb; still there was no result. at last he took the screw and drew it. it came out very easy and with scarce a sound. "'illo!" said huish. "'ere's a bad bottle." he poured some of the wine into the mug; it was colourless and still. he smelt and tasted it. "w'y, wot's this?" he said. "it's water!" if the voice of trumpets had suddenly sounded about the ship in the midst of the sea, the three men in the house could scarcely have been more stunned than by this incident. the mug passed round; each sipped, each smelt of it; each stared at the bottle in its glory of gold paper as crusoe may have stared at the footprint; and their minds were swift to fix upon a common apprehension. the difference between a bottle of champagne and a bottle of water is not great; between a shipload of one or of the other lay the whole scale from riches to ruin. a second bottle was broached. there were two cases standing ready in a state-room; these two were brought out, broken open, and tested. still with the same result: the contents were still colourless and tasteless, and dead as the rain in a beached fishing-boat. "crikey!" said huish. "here, let's sample the hold," said the captain, mopping his brow with a back-handed sweep; and the three stalked out of the house, grim and heavy-footed. all hands were turned out; two kanakas were sent below, another stationed at a purchase; and davis, axe in hand, took his place beside the coamings. "are you going to let the men know?" whispered herrick. "damn the men!" said davis. "it's beyond that. we've got to know ourselves." three cases were sent on deck and sampled in turn; from each bottle, as the captain smashed it with the axe, the champagne ran bubbling and creaming. "go deeper, can't you?" cried davis to the kanakas in the hold. the command gave the signal for a disastrous change. case after case came up, bottle after bottle was burst, and bled mere water. deeper yet, and they came upon a layer where there was scarcely so much as the intention to deceive; where the cases were no longer branded, the bottles no longer wired or papered, where the fraud was manifest and stared them in the face. "here's about enough of this foolery!" said davis. "stow back the cases in the hold, uncle, and get the broken crockery overboard. come with me," he added to his co-adventurers, and led the way back into the cabin. chapter vi the partners each took a side of the fixed table; it was the first time they had sat down at it together; but now all sense of incongruity, all memory of differences, was quite swept away by the presence of the common ruin. "gentlemen," said the captain, after a pause, and with very much the air of a chairman opening a board meeting, "we're sold." huish broke out in laughter. "well, if this ain't the 'ighest old rig!" he cried. "and dyvis 'ere, who thought he had got up so bloomin' early in the mornin'! we've stolen a cargo of spring water! o, my crikey!" and he squirmed with mirth. the captain managed to screw out a phantom smile. "here's old man destiny again," said he to herrick, "but this time i guess he's kicked the door right in." herrick only shook his head. "o lord, it's rich!" laughed huish. "it would really be a scrumptious lark if it 'ad 'appened to somebody else! and what are we to do next? o, my eye! with this bloomin' schooner, too?" "that's the trouble," said davis. "there's only one thing certain: it's no use carting this old glass and ballast to peru. no, _sir_, we're in a hole." "o my, and the merchant!" cried huish; "the man that made this shipment! he'll get the news by the mail brigantine; and he'll think of course we're making straight for sydney." "yes, he'll be a sick merchant," said the captain. "one thing: this explains the kanaka crew. if you're going to lose a ship, i would ask no better myself than a kanaka crew. but there's one thing it don't explain; it don't explain why she came down tahitiways." "w'y, to lose her, you byby!" said huish. "a lot you know," said the captain. "nobody wants to lose a schooner; they want to lose her _on her course_, you skeericks! you seem to think underwriters haven't got enough sense to come in out of the rain." "well," said herrick, "i can tell you (i am afraid) why she came so far to the eastward. i had it of uncle ned. it seems these two unhappy devils, wiseman and wishart, were drunk on the champagne from the beginning--and died drunk at the end." the captain looked on the table. "they lay in their two bunks, or sat here in this damned house," he pursued, with rising agitation, "filling their skins with the accursed stuff, till sickness took them. as they sickened and the fever rose, they drank the more. they lay here howling and groaning, drunk and dying, all in one. they didn't know where they were; they didn't care. they didn't even take the sun, it seems." "not take the sun?" cried the captain, looking up. "sacred billy! what a crowd!" "well, it don't matter to joe!" said huish. "wot are wiseman and t'other buffer to us?" "a good deal, too," said the captain. "we're their heirs, i guess." "it is a great inheritance," said herrick. "well, i don't know about that," returned davis. "appears to me as if it might be worse. 'tain't worth what the cargo would have been, of course, at least not money down. but i'll tell you what it appears to figure up to. appears to me as if it amounted to about the bottom dollar of the man in 'frisco." "'old on," said huish. "give a fellow time; 'ow's this, umpire?" "well, my sons," pursued the captain, who seemed to have recovered his assurance, "wiseman and wishart were to be paid for casting away this old schooner and its cargo. we're going to cast away the schooner right enough; and i'll make it my private business to see that we get paid. what were w. and w. to get? that's more'n i can tell. but w. and w. went into this business themselves, they were on the crook. now _we're_ on the square, _we_ only stumbled into it; and that merchant has just got to squeal, and i'm the man to see that he squeals good. no, _sir_! there's some stuffing to this _farallone_ racket after all." "go it, cap'!" cried huish. "yoicks! forrard! 'old 'ard! there's your style for the money! blow me if i don't prefer this to the hother." "i do not understand," said herrick. "i have to ask you to excuse me; i do not understand." "well, now, see here, herrick," said davis. "i'm going to have a word with you anyway upon a different matter, and it's good that huish should hear it too. we're done with this boozing business, and we ask your pardon for it right here and now. we have to thank you for all you did for us while we were making hogs of ourselves; you'll find me turn-to all right in future; and as for the wine, which i grant we stole from you, i'll take stock and see you paid for it. that's good enough, i believe. but what i want to point out to you is this. the old game was a risky game. the new game's as safe as running a vienna bakery. we just put this _farallone_ before the wind, and run till we're well to looard of our port of departure, and reasonably well up with some other place where they have an american consul. down goes the _farallone_, and good-bye to her! a day or so in the boat; the consul packs us home, at uncle sam's expense, to 'frisco; and if that merchant don't put the dollars down, you come to me!" "but i thought--" began herrick; and then broke out: "o, let's get on to peru!" "well, if you're going to peru for your health, i won't say no!" replied the captain. "but for what other blame shadow of a reason you should want to go there gets me clear. we don't want to go there with this cargo; i don't know as old bottles is a lively article anywheres; leastways, i'll go my bottom cent, it ain't peru. it was always a doubt if we could sell the schooner; i never rightly hoped to, and now i'm sure she ain't worth a hill of beans; what's wrong with her i don't know; i only know it's something, or she wouldn't be here with this truck in her inside. then again, if we lose her, and land in peru, where are we? we can't declare the loss, or how did we get to peru? in that case the merchant can't touch the insurance; most likely he'll go bust; and don't you think you see the three of us on the beach of callao?" "there's no extradition there," said herrick. "well, my son, and we want to be extraded," said the captain. "what's our point? we want to have a consul extrade us as far as san francisco and that merchant's office door. my idea is that samoa would be found an eligible business centre. it's dead before the wind; the states have a consul there, and 'frisco steamers call, so's we could skip right back and interview the merchant." "samoa?" said herrick. "it will take us for ever to get there." "o, with a fair wind!" said the captain. "no trouble about the log, eh?" asked huish. "no, _sir_," said davis. "_light airs and baffling winds. squalls and calms. d.r.: five miles. no obs. pumps attended._ and fill in the barometer and thermometer off of last year's trip. 'never saw such a voyage,' says you to the consul. 'thought i was going to run short...'" he stopped in mid career. "'say," he began again, and once more stopped. "beg your pardon, herrick," he added with undisguised humility, "but did you keep the run of the stores?" "had i been told to do so it should have been done, as the rest was done, to the best of my little ability," said herrick. "as it was, the cook helped himself to what he pleased." davis looked at the table. "i drew it rather fine, you see," he said at last. "the great thing was to clear right out of papeete before the consul could think better of it. tell you what: i guess i'll take stock." and he rose from the table and disappeared with a lamp in the lazarette. "'ere's another screw loose," observed huish. "my man," said herrick, with a sudden gleam of animosity, "it is still your watch on deck, and surely your wheel also?" "you come the 'eavy swell, don't you, ducky?" said huish. "stand away from that binnacle. surely your w'eel, my man. yah." he lit a cigar ostentatiously, and strolled into the waist with his hands in his pockets. in a surprisingly short time the captain reappeared; he did not look at herrick, but called huish back and sat down. "well," he began, "i've taken stock--roughly." he paused as if for somebody to help him out; and none doing so, both gazing on him instead with manifest anxiety, he yet more heavily resumed: "well, it won't fight. we can't do it; that's the bed-rock. i'm as sorry as what you can be, and sorrier. but the game's up. we can't look near samoa. i don't know as we could get to peru." "wot-ju mean?" asked huish brutally. "i can't 'most tell myself," replied the captain. "i drew it fine; i said i did; but what's been going on here gets me! appears as if the devil had been around. that cook must be the holiest kind of fraud. only twelve days too! seems like craziness. i'll own up square to one thing: i seem to have figured too fine upon the flour. but the rest--my land! i'll never understand it! there's been more waste on this twopenny ship than what there is to an atlantic liner." he stole a glance at his companions: nothing good was to be gleaned from their dark faces; and he had recourse to rage. "you wait till i interview that cook!" he roared, and smote the table with his fist. "i'll interview the son of a gun so's he's never been spoken to before. i'll put a bead upon the--!" "you will not lay a finger on the man," said herrick. "the fault is yours, and you know it. if you turn a savage loose in your storeroom, you know what to expect. i will not allow the man to be molested." it is hard to say how davis might have taken this defiance; but he was diverted to a fresh assailant. "well," drawled huish, "you're a plummy captain, ain't you? you're a blooming captain! don't you set up any of your chat to me, john dyvis: i know you now; you ain't any more use than a blooming dawl! o, you 'don't know,' don't you? o, it 'gets you,' do it? o, i dessay! w'y, weren't you 'owling for fresh tins every blessed day? 'ow often 'ave i 'eard you send the 'ole bloomin' dinner off and tell the man to chuck it in the swill-tub? and breakfast? o, my crikey! breakfast for ten, and you 'ollerin' for more! and now you 'can't 'most tell'! blow me if it ain't enough to make a man write an insultin' letter to gawd! you dror it mild, john dyvis: don't 'andle me; i'm dyngerous." davis sat like one bemused; it might even have been doubted if he heard, but the voice of the clerk rang about the cabin like that of a cormorant among the ledges of the cliff. "that will do, huish," said herrick. "o, so you tyke his part, do you? you stuck-up, sneerin' snob. tyke it then. come on, the pair of you. but as for john dyvis, let him look out! he struck me the first night aboard, and i never took a blow yet but wot i gave as good. let him knuckle down on his marrow-bones and beg my pardon. that's my last word." "i stand by the captain," said herrick. "that makes us two to one, both good men; and the crew will all follow me. i hope i shall die very soon; but i have not the least objection to killing you before i go. i should prefer it so; i should do it with no more remorse than winking. take care--take care--you little cad!" the animosity with which these words were uttered was so marked in itself, and so remarkable in the man who uttered them, that huish stared, and even the humiliated davis reared up his head and gazed at his defender. as for herrick, the successive agitations and disappointments of the day had left him wholly reckless; he was conscious of a pleasant glow, an agreeable excitement; his head seemed empty, his eyeballs burned as he turned them, his throat was dry as a biscuit; the least dangerous man by nature, except in so far as the weak are always dangerous, at that moment he was ready to slay or to be slain with equal unconcern. here at least was the gage thrown down, and battle offered; he who should speak next would bring the matter to an issue there and then; all knew it to be so and hung back; and for many seconds by the cabin clock the trio sat motionless and silent. then came an interruption, welcome as the flowers in may. "land ho!" sang out a voice on deck. "land a weatha bow!" "land!" cried davis, springing to his feet. "what's this? there ain't no land here." and as men may run from the chamber of a murdered corpse, the three ran forth out of the house and left their quarrel behind them undecided. the sky shaded down at the sea-level to the white of opals; the sea itself, insolently, inkily blue, drew all about them the uncompromising wheel of the horizon. search it as they pleased, not even the practised eye of captain davis could descry the smallest interruption. a few filmy clouds were slowly melting overhead; and about the schooner, as around the only point of interest, a tropic bird, white as a snow-flake, hung, and circled, and displayed, as it turned, the long vermilion feather of its tail. save the sea and the heaven, that was all. "who sang out land?" asked davis. "if there's any boy playing funny-dog with me, i'll teach him skylarking!" but uncle ned contentedly pointed to a part of the horizon where a greenish, filmy iridescence could be discerned floating like smoke on the pale heavens. davis applied his glass to it, and then looked at the kanaka. "call that land?" said he. "well, it's more than i do." "one time long ago," said uncle ned, "i see anaa all-e-same that, four five hours befo' we come up. capena he say sun go down, sun go up again; he say lagoon all-e-same milla." "all-e-same _what_?" asked davis. "milla, sah," said uncle ned. "o, ah! mirror," said davis. "i see; reflection from the lagoon. well, you know, it is just possible, though it's strange i never heard of it. here, let's look at the chart." they went back to the cabin, and found the position of the schooner well to windward of the archipelago in the midst of a white field of paper. "there! you see for yourselves," said davis. "and yet i don't know," said herrick; "i somehow think there's something in it. i'll tell you one thing too, captain: that's all right about the reflection; i heard it in papeete." "fetch up that findlay, then!" said davis. "i'll try it all ways. an island wouldn't come amiss the way we're fixed." the bulky volume was handed up to him, broken-backed as is the way with findlay; and he turned to the place and began to run over the text, muttering to himself and turning over the pages with a wetted finger. "hullo!" he exclaimed. "how's this?" and he read aloud: "'_new island_. according to m. delille this island, which from private interests would remain unknown, lies, it is said, in lat. ° ' '' s., long. ° ' w. in addition to the position above given, commander matthews, h.m.s. _scorpion_, states that an island exists in lat. ° ' s., long. ° ' w. this must be the same, if such an island exists, which is very doubtful, and totally disbelieved in by south sea traders.'" "golly!" said huish. "it's rather in the conditional mood," said herrick. "it's anything you please," cried davis, "only there it is! that's our place, and don't you make any mistake." "'which from private interests would remain unknown,'" read herrick, over his shoulder. "what may that mean?" "it should mean pearls," said davis. "a pearling island the government don't know about. that sounds like real estate. or suppose it don't mean anything. suppose it's just an island; i guess we could fill up with fish, and cocoa-nuts, and native stuff, and carry out the samoa scheme hand over fist. how long did he say it was before they raised anaa? five hours, i think?" "four or five," said herrick. davis stepped to the door. "what breeze had you that time you made anaa, uncle ned?" said he. "six or seven knots," was the reply. "thirty or thirty-five miles," said davis. "high time we were shortening sail, then. if it is an island, we don't want to be butting our head against it in the dark; and if it isn't an island, we can get through it just as well by daylight. ready about!" he roared. and the schooner's head was laid for that elusive glimmer in the sky, which began already to pale in lustre and diminish in size, as the stain of breath vanishes from a window pane. at the same time she was reefed close down. part ii the quartette chapter vii the pearl-fisher about four in the morning, as the captain and herrick sat together on the rail, there arose from the midst of the night in front of them the voice of breakers. each sprang to his feet and stared and listened. the sound was continuous, like the passing of a train; no rise or fall could be distinguished; minute by minute the ocean heaved with an equal potency against the invisible isle; and as time passed, and herrick waited in vain for any vicissitude in the volume of that roaring, a sense of the eternal weighed upon his mind. to the expert eye the isle itself was to be inferred from a certain string of blots along the starry heaven. and the schooner was laid to and anxiously observed till daylight. there was little or no morning bank. a brightening came in the east; then a wash of some ineffable, faint, nameless hue between crimson and silver; and then coals of fire. these glimmered a while on the sea-line, and seemed to brighten and darken and spread out, and still the night and the stars reigned undisturbed; it was as though a spark should catch and glow and creep along the foot of some heavy and almost incombustible wall-hanging, and the room itself be scarce menaced. yet a little after, and the whole east glowed with gold and scarlet, and the hollow of heaven was filled with the daylight. the isle--the undiscovered, the scarce-believed in--now lay before them and close aboard; and herrick thought that never in his dreams had he beheld anything more strange and delicate. the beach was excellently white, the continuous barrier of trees inimitably green; the land perhaps ten feet high, the trees thirty more. every here and there, as the schooner coasted northward, the wood was intermitted; and he could see clear over the inconsiderable strip of land (as a man looks over a wall) to the lagoon within--and clear over that again to where the far side of the atoll prolonged its pencilling of trees against the morning sky. he tortured himself to find analogies. the isle was like the rim of a great vessel sunken in the waters; it was like the embankment of an annular railway grown upon with wood: so slender it seemed amidst the outrageous breakers, so frail and pretty, he would scarce have wondered to see it sink and disappear without a sound, and the waves close smoothly over its descent. meanwhile the captain was in the four cross-trees, glass in hand, his eyes in every quarter, spying for an entrance, spying for signs of tenancy. but the isle continued to unfold itself in joints, and to run out in indeterminate capes, and still there was neither house nor man, nor the smoke of fire. here a multitude of sea-birds soared and twinkled, and fished in the blue waters; and there, and for miles together, the fringe of coco-palm and pandanus extended desolate, and made desirable green bowers for nobody to visit, and the silence of death was only broken by the throbbing of the sea. the airs were very light, their speed was small; the heat intense. the decks were scorching underfoot, the sun flamed overhead, brazen, out of a brazen sky; the pitch bubbled in the seams, and the brains in the brain-pan. and all the while the excitement of the three adventurers glowed about their bones like a fever. they whispered, and nodded, and pointed, and put mouth to ear, with a singular instinct of secrecy, approaching that island underhand like eavesdroppers and thieves; and even davis from the cross-trees gave his orders mostly by gestures. the hands shared in this mute strain, like dogs, without comprehending it; and through the roar of so many miles of breakers, it was a silent ship that approached an empty island. at last they drew near to the break in that interminable gangway. a spur of coral sand stood forth on the one hand; on the other a high and thick tuft of trees cut off the view; between was the mouth of the huge laver. twice a day the ocean crowded in that narrow entrance and was heaped between these frail walls; twice a day, with the return of the ebb, the mighty surplusage of water must struggle to escape. the hour in which the _farallone_ came there was the hour of the flood. the sea turned (as with the instinct of the homing pigeon) for the vast receptacle, swept eddying through the gates, was transmuted, as it did so, into a wonder of watery and silken hues, and brimmed into the inland sea beyond. the schooner looked up close-hauled, and was caught and carried away by the influx like a toy. she skimmed; she flew; a momentary shadow touched her decks from the shoreside trees; the bottom of the channel showed up for a moment and was in a moment gone; the next, she floated on the bosom of the lagoon, and below, in the transparent chamber of waters, a myriad of many-coloured fishes were sporting, a myriad pale flowers of coral diversified the floor. herrick stood transported. in the gratified lust of his eye he forgot the past and the present; forgot that he was menaced by a prison on the one hand and starvation on the other; forgot that he was come to that island, desperately foraging, clutching at expedients. a drove of fishes, painted like the rainbow and billed like parrots, hovered up in the shadow of the schooner, and passed clear of it, and glinted in the submarine sun. they were beautiful, like birds, and their silent passage impressed him like a strain of song. meanwhile, to the eye of davis in the cross-trees, the lagoon continued to expand its empty waters, and the long succession of the shoreside trees to be paid out like fishing-line off a reel. and still there was no mark of habitation. the schooner, immediately on entering, had been kept away to the nor'ard where the water seemed to be the most deep; and she was now skimming past the tall grove of trees, which stood on that side of the channel and denied further view. of the whole of the low shores of the island only this bight remained to be revealed. and suddenly the curtain was raised; they began to open out a haven, snugly elbowed there, and beheld, with an astonishment beyond words, the roofs of men. the appearance, thus "instantaneously disclosed" to those on the deck of the _farallone_, was not that of a city, rather of a substantial country farm with its attendant hamlet: a long line of sheds and store-houses; apart, upon the one side, a deep-verandah'd dwelling-house; on the other, perhaps a dozen native huts; a building with a belfry and some rude offer at architectural features that might be thought to mark it out for a chapel; on the beach in front some heavy boats drawn up, and a pile of timber running forth into the burning shallows of the lagoon. from a flagstaff at the pierhead the red ensign of england was displayed. behind, about, and over, the same tall grove of palms, which had masked the settlement in the beginning, prolonged its roof of tumultuous green fans, and turned and ruffled overhead, and sang its silver song all day in the wind. the place had the indescribable but unmistakable appearance of being in commission; yet there breathed from it a sense of desertion that was almost poignant, no human figure was to be observed going to and fro about the houses, and there was no sound of human industry or enjoyment. only, on the top of the beach, and hard by the flagstaff, a woman of exorbitant stature and as white as snow was to be seen beckoning with uplifted arm. the second glance identified her as a piece of naval sculpture, the flgure-head of a ship that had long hovered and plunged into so many running billows, and was now brought ashore to be the ensign and presiding genius of that empty town. the _farallone_ made a soldier's breeze of it; the wind, besides, was stronger inside than without under the lee of the land; and the stolen schooner opened out successive objects with the swiftness of a panorama, so that the adventurers stood speechless. the flag spoke for itself; it was no frayed and weathered trophy that had beaten itself to pieces on the post, flying over desolation; and to make assurance stronger, there was to be descried in the deep shade of the verandah a glitter of crystal and the fluttering of white napery. if the figure-head at the pier-end, with its perpetual gesture and its leprous whiteness, reigned alone in that hamlet as it seemed to do, it would not have reigned long. men's hands had been busy, men's feet stirring there, within the circuit of the clock. the _farallones_ were sure of it; their eyes dug in the deep shadow of the palms for some one hiding; if intensity of looking might have prevailed, they would have pierced the walls of houses; and there came to them, in these pregnant seconds, a sense of being watched and played with, and of a blow impending, that was hardly bearable. the extreme point of palms they had just passed enclosed a creek, which was thus hidden up to the last moment from the eyes of those on board; and from this a boat put suddenly and briskly out, and a voice hailed. "schooner ahoy!" it cried. "stand in for the pier! in two cables' lengths you'll have twenty fathoms water and good holding-ground." the boat was manned with a couple of brown oarsmen in scanty kilts of blue. the speaker, who was steering, wore white clothes, the full dress of the tropics; a wide hat shaded his face; but it could be seen that he was of stalwart size, and his voice sounded like a gentleman's. so much could be made out. it was plain, besides, that the _farallone_ had been descried some time before at sea, and the inhabitants were prepared for its reception. mechanically the orders were obeyed, and the ship berthed; and the three adventurers gathered aft beside the house and waited, with galloping pulses and a perfect vacancy of mind, the coming of the stranger who might mean so much to them. they had no plan, no story prepared; there was no time to make one; they were caught red-handed and must stand their chance. yet this anxiety was chequered with hope. the island being undeclared, it was not possible the man could hold any office or be in a position to demand their papers. and beyond that, if there was any truth in findlay, as it now seemed there should be, he was the representative of the "private reasons," he must see their coming with a profound disappointment; and perhaps (hope whispered) he would be willing and able to purchase their silence. the boat was by that time forging alongside, and they were able at last to see what manner of man they had to do with. he was a huge fellow, six feet four in height, and of a build proportionately strong, but his sinews seemed to be dissolved in a listlessness that was more than languor. it was only the eye that corrected this impression; an eye of an unusual mingled brilliancy and softness, sombre as coal and with lights that outshone the topaz; an eye of unimpaired health and virility; an eye that bid you beware of the man's devastating anger. a complexion, naturally dark, had been tanned in the island to a hue hardly distinguishable from that of a tahitian; only his manners and movements, and the living force that dwelt in him, like fire in flint, betrayed the european. he was dressed in white drill, exquisitely made; his scarf and tie were of tender-coloured silks; on the thwart beside him there leaned a winchester rifle. "is the doctor on board?" he cried as he came up. "dr. symonds, i mean? you never heard of him? nor yet of the _trinity hall_? ah!" he did not look surprised, seemed rather to affect it in politeness; but his eye rested on each of the three white men in succession with a sudden weight of curiosity that was almost savage. "ah, _then_!" said he, "there is some small mistake, no doubt, and i must ask you to what i am indebted for this pleasure?" he was by this time on the deck, but he had the art to be quite unapproachable; the friendliest vulgarian, three parts drunk, would have known better than take liberties; and not one of the adventurers so much as offered to shake hands. "well," said davis, "i suppose you may call it an accident. we had heard of your island, and read that thing in the directory about the _private reasons_, you see; so when we saw the lagoon reflected in the sky, we put her head for it at once, and so here we are." "'ope we don't intrude!" said huish. the stranger looked at huish with an air of faint surprise, and looked pointedly away again. it was hard to be more offensive in dumb show. "it may suit me, your coming here," he said. "my own schooner is overdue, and i may put something in your way in the meantime. are you open to a charter?" "well, i guess so," said davis; "it depends." "my name is attwater," continued the stranger. "you, i presume, are the captain?" "yes, sir. i am the captain of this ship: captain brown," was the reply. "well, see 'ere!" said huish; "better begin fair! 'e's skipper on deck right enough, but not below. below, we're all equal, all got a lay in the adventure; when it comes to business i'm as good as 'e; and what i say is, let's go into the 'ouse and have a lush, and talk it over among pals. we've some prime fizz," he said, and winked. the presence of the gentleman lighted up like a candle the vulgarity of the clerk; and herrick instinctively, as one shields himself from pain, made haste to interrupt. "my name is hay," said he, "since introductions are going. we shall be very glad if you will step inside." attwater leaned to him swiftly. "university man?" said he. "yes, merton," said herrick, and the next moment blushed scarlet at his indiscretion. "i am of the other lot," said attwater: "trinity hall, cambridge. i called my schooner after the old shop. well! this is a queer place and company for us to meet in, mr. hay," he pursued, with easy incivility to the others. "but do you bear out ... i beg this gentleman's pardon, i really did not catch his name." "my name is 'uish, sir," returned the clerk, and blushed in turn. "ah!" said attwater. and then turning again to herrick, "do you bear out mr. whish's description of your vintage? or was it only the unaffected poetry of his own nature bubbling up?" herrick was embarrassed; the silken brutality of their visitor made him blush; that he should be accepted as an equal, and the others thus pointedly ignored, pleased him in spite of himself, and then ran through his veins in a recoil of anger. "i don't know," he said. "it's only california; it's good enough, i believe." attwater seemed to make up his mind. "well, then, i'll tell you what: you three gentlemen come ashore this evening and bring a basket of wine with you; i'll try and find the food," he said. "and by the by, here is a question i should have asked you when i came on board: have you had small-pox?" "personally, no," said herrick. "but the schooner had it." "deaths?" from attwater. "two," said herrick. "well, it is a dreadful sickness," said attwater. "'ad you any deaths?" asked huish, "'ere on the island?" "twenty-nine," said attwater. "twenty-nine deaths and thirty-one cases, out of thirty-three souls upon the island.--that's a strange way to calculate, mr. hay, is it not? souls! i never say it but it startles me." "o, so that's why everything's deserted?" said huish. "that is why, mr. whish," said attwater; "that is why the house is empty and the graveyard full." "twenty-nine out of thirty-three!" exclaimed herrick. "why, when it came to burying--or did you bother burying?" "scarcely," said attwater; "or there was one day at least when we gave up. there were five of the dead that morning, and thirteen of the dying, and no one able to go about except the sexton and myself. we held a council of war, took the ... empty bottles ... into the lagoon, and ... buried them." he looked over his shoulder, back at the bright water. "well, so you'll come to dinner, then? shall we say half-past six? so good of you!" his voice, in uttering these conventional phrases, fell at once into the false measure of society; and herrick unconsciously followed the example. "i am sure we shall be very glad," he said. "at half-past six? thank you so very much." "'for my voice has been tuned to the note of the gun that startles the deep when the combat's begun,'" quoted attwater, with a smile, which instantly gave way to an air of funereal solemnity. "i shall particularly expect mr. whish," he continued.--"mr. whish, i trust you understand the invitation?" "i believe you, my boy!" replied the genial huish. "that is right, then; and quite understood, is it not?" said attwater. "mr. whish and captain brown at six-thirty without fault--and you, hay, at four sharp." and he called his boat. during all this talk a load of thought or anxiety had weighed upon the captain. there was no part for which nature had so liberally endowed him as that of the genial ship-captain. but to-day he was silent and abstracted. those who knew him could see that he hearkened close to every syllable, and seemed to ponder and try it in balances. it would have been hard to say what look there was, cold, attentive, and sinister, as of a man maturing plans, which still brooded over the unconscious guest; it was here, it was there, it was nowhere; it was now so little that herrick chid himself for an idle fancy; and anon it was so gross and palpable that you could say every hair on the man's head talked mischief. he woke up now, as with a start. "you were talking of a charter," said he. "was i?" said attwater. "well, let's talk of it no more at present." "your own schooner is overdue, i understand?" continued the captain. "you understand perfectly, captain brown," said attwater; "thirty-three days overdue at noon to-day." "she comes and goes, eh? plies between here and ...?" hinted the captain. "exactly; every four months; three trips in the year," said attwater. "you go in her ever?" asked davis. "no; one stops here," said attwater; "one has plenty to attend to." "stop here, do you?" cried davis. "say, how long?" "how long, o lord," said attwater, with perfect, stern gravity. "but it does not seem so," he added, with a smile. "no, i daresay not," said davis. "no, i suppose not. not with all your gods about you, and in as snug a berth as this. for it is a pretty snug berth," said he, with a sweeping look. "the spot, as you are good enough to indicate, is not entirely intolerable," was the reply. "shell, i suppose?" said davis. "yes, there was shell," said attwater. "this is a considerable big beast of a lagoon, sir," said the captain. "was there a--was the fishing--would you call the fishing anyways _good_?" "i don't know that i would call it anyways anything," said attwater, "if you put it to me direct." "there were pearls, too?" said davis. "pearls too," said attwater. "well, i give out!" laughed davis, and his laughter rang cracked like a false piece. "if you're not going to tell, you're not going to tell, and there's an end to it." "there can be no reason why i should affect the least degree of secrecy about my island," returned attwater; "that came wholly to an end with your arrival; and i am sure, at any rate, that gentlemen like you and mr. whish i should have always been charmed to make perfectly at home. the point on which we are now differing--if you can call it a difference--is one of times and seasons. i have some information which you think i might impart, and i think not. well, we'll see to-night! by-by, whish!" he stepped into his boat and shoved off. "all understood, then?" said he. "the captain and mr. whish at six-thirty, and you, hay, at four precise. you understand that, hay? mind, i take no denial. if you're not there by the time named, there will be no banquet; no song, no supper, mr. whish!" white birds whisked in the air above, a shoal of parti-coloured fishes in the scarce denser medium below; between, like mahomet's coffin, the boat drew away briskly on the surface, and its shadow followed it over the glittering floor of the lagoon. attwater looked steadily back over his shoulders as he sat; he did not once remove his eyes from the _farallone_ and the group on her quarter-deck beside the house, till his boat ground upon the pier. thence, with an agile pace, he hurried ashore, and they saw his white clothes shining in the chequered dusk of the grove until the house received him. the captain, with a gesture and a speaking countenance, called the adventurers into the cabin. "well," he said to herrick, when they were seated, "there's one good job at least. he's taken to you in earnest." "why should that be a good job?" said herrick. "o, you'll see how it pans out presently," returned davis. "you go ashore and stand in with him, that's all! you'll get lots of pointers; you can find out what he has, and what the charter is, and who's the fourth man--for there's four of them, and we're only three." "and suppose i do, what next?" cried herrick. "answer me that!" "so i will, robert herrick," said the captain. "but first, let's see all clear. i guess you know," he said, with imperious solemnity, "i guess you know the bottom is out of this _farallone_ speculation? i guess you know it's _right_ out? and if this old island hadn't been turned up right when it did, i guess you know where you and i and huish would have been?" "yes, i know that," said herrick. "no matter who's to blame, i know it. and what next?" "no matter who's to blame, you know it, right enough," said the captain, "and i'm obliged to you for the reminder. now, here's this attwater: what do you think of him?" "i do not know," said herrick. "i am attracted and repelled. he was insufferably rude to you." "and you, huish?" said the captain. huish sat cleaning a favourite briar-root; he scarce looked up from that engrossing task. "don't ast me what i think of him!" he said. "there's a day comin', i pray gawd, when i can tell it him myself." "huish means the same as what i do," said davis. "when that man came stepping around, and saying, 'look here, i'm attwater'--and you knew it was so, by god!--i sized him right straight up. he's the real article, i said, and i don't like it; here's the real, first-rate, copper-bottomed aristocrat. '_aw! don't know ye, do i? god damn ye, did god make ye?_' no, that couldn't be nothing but genuine; a man's got to be born to that; and notice! smart as champagne and hard as nails; no kind of a fool; no, _sir_! not a pound of him! well, what's he here upon this beastly island for? i said. _he's_ not here collecting eggs. he's a palace at home, and powdered flunkeys; and if he don't stay there, you bet he knows the reason why! follow?" "o yes, i 'ear you," said huish. "he's been doing good business here, then," continued the captain. "for ten years he's been doing a great business. it's pearl and shell, of course; there couldn't be nothing else in such a place, and no doubt the shell goes off regularly by this _trinity hall_, and the money for it straight into the bank, so that's no use to us. but what else is there? is there nothing else he would be likely to keep here? is there nothing else he would be bound to keep here? yes, sir; the pearls! first, because they're too valuable to trust out of his hands. second, because pearls want a lot of handling and matching; and the man who sells his pearls as they come in one here, one there, instead of hanging back and holding up--well, that man's a fool, and it's not attwater." "likely," said huish, "that's w'at it is; not proved, but likely." "it's proved," said davis bluntly. "suppose it was?" said herrick. "suppose that was all so, and he had these pearls--a ten years' collection of them?--suppose he had? there's my question." the captain drummed with his thick hands on the board in front of him; he looked steadily in herrick's face, and herrick as steadily looked upon the table and the pattering fingers; there was a gentle oscillation of the anchored ship, and a big patch of sunlight travelled to and fro between the one and the other. "hear me!" herrick burst out suddenly. "no, you better hear me first," said davis. "hear me and understand me. we've got no use for that fellow, whatever you may have. he's your kind, he's not ours; he's took to you, and he's wiped his boots on me and huish. save him if you can!" "save him?" repeated herrick. "save him, if you're able!" reiterated davis, with a blow of his clenched fist. "go ashore, and talk him smooth; and if you get him and his pearls aboard, i'll spare him. if you don't, there's going to be a funeral. is that so, huish? does that suit you?" "i ain't a forgiving man," said huish, "but i'm not the sort to spoil business neither. bring the bloke on board and bring his pearls along with him, and you can have it your own way; maroon him where you like,--i'm agreeable." "well, and if i can't?" cried herrick, while the sweat streamed upon his face. "you talk to me as if i was god almighty, to do this and that! but if i can't?" "my son," said the captain, "you better do your level best, or you'll see sights!" "o yes," said huish. "o crikey, yes!" he looked across at herrick with a toothless smile that was shocking in its savagery; and, his ear caught apparently by the trivial expression he had used, broke into a piece of the chorus of a comic song which he must have heard twenty years before in london: meaningless gibberish that, in that hour and place, seemed hateful as a blasphemy: "hikey, pikey, crikey, fikey, chillingawallaba dory." the captain suffered him to finish; his face was unchanged. "the way things are, there's many a man that wouldn't let you go ashore," he resumed. "but i'm not that kind. i know you'd never go back on me, herrick! or if you choose to,--go, and do it, and be damned!" he cried, and rose abruptly from the table. he walked out of the house; and as he reached the door turned and called huish, suddenly and violently, like the barking of a dog. huish followed, and herrick remained alone in the cabin. "now, see here!" whispered davis. "i know that man. if you open your mouth to him again, you'll ruin all." chapter viii better acquaintance the boat was gone again, and already half-way to the _farallone_, before herrick turned and went unwillingly up the pier. from the crown of the beach, the figure-head confronted him with what seemed irony, her helmeted head tossed back, her formidable arm apparently hurling something, whether shell or missile, in the direction of the anchored schooner. she seemed a defiant deity from the island, coming forth to its threshold with a rush as of one about to fly, and perpetuated in that dashing attitude. herrick looked up at her, where she towered above him head and shoulders, with singular feelings of curiosity and romance, and suffered his mind to travel to and fro in her life-history. so long she had been the blind conductress of a ship among the waves; so long she had stood here idle in the violent sun, that yet did not avail to blister her; and was even this the end of so many adventures? he wondered, or was more behind? and he could have found it in his heart to regret that she was not a goddess, nor yet he a pagan, that he might have bowed down before her in that hour of difficulty. when he now went forward, it was cool with the shadow of many well-grown palms; draughts of the dying breeze swung them together overhead; and on all sides, with a swiftness beyond dragon-flies or swallows, the spots of sunshine flitted, and hovered, and returned. underfoot, the sand was fairly solid and quite level, and herrick's steps fell there noiseless as in new-fallen snow. it bore the marks of having been once weeded like a garden alley at home; but the pestilence had done its work, and the weeds were returning. the buildings of the settlement showed here and there through the stems of the colonnade, fresh painted, trim and dandy, and all silent as the grave. only here and there in the crypt, there was a rustle and scurry and some crowing of poultry; and from behind the house with the verandahs he saw smoke arise and heard the crackling of a fire. the stone houses were nearest him upon his right. the first was locked; in the second he could dimly perceive, through a window, a certain accumulation of pearl-shell piled in the far end; the third, which stood gaping open on the afternoon, seized on the mind of herrick with its multiplicity and disorder of romantic things. therein were cables, windlasses, and blocks of every size and capacity; cabin-windows and ladders; rusty tanks, a companion hutch; a binnacle with its brass mountings and its compass idly pointing, in the confusion and dusk of that shed, to a forgotten pole; ropes, anchors, harpoons: a blubber-dipper of copper, green with years; a steering-wheel, a tool-chest with the vessel's name upon the top, the _asia_: a whole curiosity-shop of sea-curios, gross and solid, heavy to lift, ill to break, bound with brass and shod with iron. two wrecks at the least must have contributed to this random heap of lumber; and as herrick looked upon it, it seemed to him as if the two ships' companies were there on guard, and he heard the tread of feet and whisperings, and saw with the tail of his eye the commonplace ghosts of sailor men. this was not merely the work of an aroused imagination, but had something sensible to go upon; sounds of a stealthy approach were no doubt audible; and while he still stood staring at the lumber, the voice of his host sounded suddenly, and with even more than the customary softness of enunciation, from behind. "junk," it said, "only old junk! and does mr. hay find a parable?" "i find at least a strong impression," replied herrick, turning quickly, lest he might be able to catch, on the face of the speaker, some commentary on the words. attwater stood in the doorway, which he almost wholly filled; his hands stretched above his head and grasping the architrave. he smiled when their eyes met, but the expression was inscrutable. "yes, a powerful impression. you are like me; nothing so affecting as ships!" said he. "the ruins of an empire would leave me frigid, when a bit of an old rail that an old shellback leaned on in the middle watch, would bring me up all standing. but come, let's see some more of the island. it's all sand and coral and palm-trees; but there's a kind of a quaintness in the place." "i find it heavenly," said herrick, breathing deep, with head bared in the shadow. "ah, that's because you're new from sea," said attwater. "i daresay, too, you can appreciate what one calls it. it's a lovely name. it has a flavour, it has a colour, it has a ring and fall to it; it's like its author--it's half christian! remember your first view of the island, and how it's only woods and woods and water; and suppose you had asked somebody for the name, and he had answered--_nemorosa zacynthos_." "_jam medio apparet fluctu!_" exclaimed herrick. "ye gods, yes, how good!" "if it gets upon the chart, the skippers will make nice work of it," said attwater. "but here, come and see the diving-shed." he opened a door, and herrick saw a large display of apparatus neatly ordered: pumps and pipes, and the leaded boots, and the huge snouted helmets shining in rows along the wall; ten complete outfits. "the whole eastern half of my lagoon is shallow, you must understand," said attwater; "so we were able to get in the dress to great advantage. it paid beyond belief, and was a queer sight when they were at it, and these marine monsters"--tapping the nearest of the helmets--"kept appearing and reappearing in the midst of the lagoon. fond of parables?" he asked abruptly. "o yes!" said herrick. "well, i saw these machines come up dripping and go down again, and come up dripping and go down again, and all the while the fellow inside as dry as toast!" said attwater; "and i thought we all wanted a dress to go down into the world in, and come up scatheless. what do you think the name was?" he inquired. "self-conceit," said herrick. "ah, but i mean seriously!" said attwater. "call it self-respect, then!" corrected herrick, with a laugh. "and why not grace? why not god's grace, hay?" asked attwater. "why not the grace of your maker and redeemer, he who died for you, he who upholds you, he whom you daily crucify afresh? there is nothing here"--striking on his bosom,--"nothing there"--smiting the wall,--"and nothing there,"--stamping--"nothing but god's grace! we walk upon it, we breathe it; we live and die by it; it makes the nails and axles of the universe; and a puppy in pyjamas prefers self-conceit!" the huge dark man stood over against herrick by the line of the divers' helmets, and seemed to swell and glow; and the next moment the life had gone from him--"i beg your pardon," said he; "i see you don't believe in god?" "not in your sense, i am afraid," said herrick. "i never argue with young atheists or habitual drunkards," said attwater flippantly.--"let us go across the island to the outer beach." it was but a little way, the greatest width of that island scarce exceeding a furlong, and they walked gently. herrick was like one in a dream. he had come there with a mind divided; come prepared to study that ambiguous and sneering mask, drag out the essential man from underneath, and act accordingly; decision being till then postponed. iron cruelty, an iron insensibility to the suffering of others, the uncompromising pursuit of his own interests, cold culture, manners without humanity: these he had looked for, these he still thought he saw. but to find the whole machine thus glow with the reverberation of religious zeal surprised him beyond words; and he laboured in vain, as he walked, to piece together into any kind of whole his odds and ends of knowledge--to adjust again into any kind of focus with itself his picture of the man beside him. "what brought you here to the south seas?" he asked presently. "many things," said attwater. "youth, curiosity, romance, the love of the sea, and (it will surprise you to hear) an interest in missions. that has a good deal declined, which will surprise you less. they go the wrong way to work; they are too parsonish, too much of the old wife, and even the old apple-wife. _clothes_, _clothes_, are their idea; but clothes are not christianity, any more than they are the sun in heaven, or could take the place of it! they think a parsonage with roses, and church bells, and nice old women bobbing in the lanes, are part and parcel of religion. but religion is a savage thing, like the universe it illuminates; savage, cold, and bare, but infinitely strong." "and you found this island by an accident?" said herrick. "as you did!" said attwater. "and since then i have had a business, and a colony, and a mission of my own. i was a man of the world before i was a christian; i'm a man of the world still, and i made my mission pay. no good ever came of coddling. a man has to stand up in god's sight and work up to his weight avoirdupois: then i'll talk to him, but not before. i gave these beggars what they wanted: a judge in israel, the bearer of the sword and scourge; i was making a new people here; and behold, the angel of the lord smote them and they were not!" with the very uttering of the words, which were accompanied by a gesture, they came forth out of the porch of the palm wood by the margin of the sea and full in front of the sun, which was near setting. before them the surf broke slowly. all around, with an air of imperfect wooden things inspired with wicked activity, the crabs trundled and scuttled into holes. on the right, whither attwater pointed and abruptly turned, was the cemetery of the island, a field of broken stones from the bigness of a child's hand to that of his head, diversified by many mounds of the same material, and walled by a rude rectangular enclosure. nothing grew there but a shrub or two with some white flowers; nothing but the number of the mounds, and their disquieting shape, indicated the presence of the dead. "the rude forefathers of the hamlet sleep!" quoted attwater, as he entered by the open gateway into that unholy close. "coral to coral, pebbles to pebbles," he said; "this has been the main scene of my activity in the south pacific. some were good, and some bad, and the majority (of course and always) null. here was a fellow, now, that used to frisk like a dog; if you had called him he came like an arrow from a bow; if you had not, and he came unbidden, you should have seen the deprecating eye and the little intricate dancing step. well, his trouble is over now, he has lain down with kings and councillors; the rest of his acts, are they not written in the book of the chronicles? that fellow was from penrhyn; like all the penrhyn islanders he was ill to manage; heady, jealous, violent: the man with the nose! he lies here quiet enough. and so they all lie. 'and darkness was the burier of the dead!'" he stood, in the strong glow of the sunset, with bowed head; his voice sounded now sweet and now bitter with the varying sense. "you loved these people?" cried herrick, strangely touched. "i?" said attwater. "dear no! don't think me a philanthropist. i dislike men, and hate women. if i like the islanders at all, it is because you see them here plucked of their lendings, their dead birds and cocked hats, their petticoats and coloured hose. here was one i liked though," and he set his foot upon a mound. "he was a fine savage fellow; he had a dark soul; yes, i liked this one. i am fanciful," he added, looking hard at herrick, "and i take fads. i like you." herrick turned swiftly and looked far away to where the clouds were beginning to troop together and amass themselves round the obsequies of day. "no one can like me," he said. "you are wrong there," said the other, "as a man usually is about himself. you are attractive, very attractive." "it is not me," said herrick; "no one can like me. if you knew how i despised myself--and why!" his voice rang out in the quiet graveyard. "i knew that you despised yourself," said attwater. "i saw the blood come into your face to-day when you remembered oxford. and i could have blushed for you myself, to see a man, a gentleman, with these two vulgar wolves." herrick faced him with a thrill. "wolves?" he repeated. "i said wolves, and vulgar wolves," said attwater. "do you know that to-day, when i came on board, i trembled?" "you concealed it well," stammered herrick. "a habit of mine," said attwater. "but i was afraid, for all that: i was afraid of the two wolves." he raised his hand slowly. "and now, hay, you poor lost puppy, what do you do with the two wolves?" "what do i do? i don't do anything," said herrick. "there is nothing wrong; all is above-board; captain brown is a good soul; he is a ... he is...." the phantom voice of davis called in his ear: "there's going to be a funeral"; and the sweat burst forth and streamed on his brow. "he is a family man," he resumed again, swallowing; "he has children at home and a wife." "and a very nice man?" said attwater. "and so is mr. whish, no doubt?" "i won't go so far as that," said herrick. "i do not like huish. and yet ... he has his merits too." "and, in short, take them for all in all, as good a ship's company as one would ask?" said attwater. "o yes," said herrick, "quite." "so then we approach the other point of why you despise yourself?" said attwater. "do we not all despise ourselves?" cried herrick. "do not you?" "oh, i say i do. but do i?" said attwater. "one thing i know at least: i never gave a cry like yours. hay! it came from a bad conscience! ah, man, that poor diving-dress of self-conceit is sadly tattered! to-day, if ye will hear my voice. to-day, now, while the sun sets, and here in this burying-place of brown innocents, fall on your knees and cast your sins and sorrows on the redeemer. hay----" "not hay!" interrupted the other, strangling. "don't call me that! i mean.... for god's sake, can't you see i'm on the rack?" "i see it, i know it, i put and keep you there; my fingers are on the screws!" said attwater. "please god, i will bring a penitent this night before his throne. come, come to the mercy-seat! he waits to be gracious, man--waits to be gracious!" he spread out his arms like a crucifix; his face shone with the brightness of a seraph's; in his voice, as it rose to the last word, the tears seemed ready. herrick made a vigorous call upon himself. "attwater," he said, "you push me beyond bearing. what am i to do? i do not believe. it is living truth to you: to me, upon my conscience, only folk-lore. i do not believe there is any form of words under heaven by which i can lift the burthen from my shoulders. i must stagger on to the end with the pack of my responsibility; i cannot shift it; do you suppose i would not if i thought i could? i cannot--cannot--cannot--and let that suffice." the rapture was all gone from attwater's countenance; the dark apostle had disappeared; and in his place there stood an easy, sneering gentleman, who took off his hat and bowed. it was pertly done, and the blood burned in herrick's face. "what do you mean by that?" he cried. "well, shall we go back to the house?" said attwater. "our guests will soon be due." herrick stood his ground a moment with clenched fists and teeth; and as he so stood, the fact of his errand there slowly swung clear in front of him, like the moon out of clouds. he had come to lure that man on board; he was failing, even if it could be said that he had tried; he was sure to fail now, and knew it, and knew it was better so. and what was to be next? with a groan he turned to follow his host, who was standing with polite smile, and instantly and somewhat obsequiously led the way in the now darkened colonnade of palms. there they went in silence, the earth gave up richly of her perfume, the air tasted warm and aromatic in the nostrils; and from a great way forward in the wood, the brightness of lights and fire marked out the house of attwater. herrick meanwhile resolved and resisted an immense temptation to go up, to touch him on the arm and breathe a word in his ear: "beware, they are going to murder you." there would be one life saved; but what of the two others? the three lives went up and down before him like buckets in a well, or like the scales of balances. it had come to a choice, and one that must be speedy. for certain invaluable minutes, the wheels of life ran before him, and he could still divert them with a touch to the one side or the other, still choose who was to live and who was to die. he considered the men. attwater intrigued, puzzled, dazzled, enchanted and revolted him; alive, he seemed but a doubtful good; and the thought of him lying dead was so unwelcome that it pursued him, like a vision, with every circumstance of colour and sound. incessantly he had before him the image of that great mass of man stricken down in varying attitudes and with varying wounds; fallen prone, fallen supine, fallen on his side; or clinging to a doorpost with the changing face and the relaxing fingers of the death-agony. he heard the click of the trigger, the thud of the ball, the cry of the victim; he saw the blood flow. and this building up of circumstance was like a consecration of the man, till he seemed to walk in sacrificial fillets. next he considered davis, with his thick-fingered, coarse-grained, oat-bread commonness of nature, his indomitable valour and mirth in the old days of their starvation, the endearing blend of his faults and virtues, the sudden shining forth of a tenderness that lay too deep for tears; his children, ada and her bowel complaint, and ada's doll. no, death could not be suffered to approach that head even in fancy; with a general heat and a bracing of his muscles, it was borne in on herrick that ada's father would find in him a son to the death. and even huish showed a little in that sacredness; by the tacit adoption of daily life they were become brothers; there was an implied bond of loyalty in their cohabitation of the ship and their past miseries; to which herrick must be a little true or wholly dishonoured. horror of sudden death for horror of sudden death, there was here no hesitation possible: it must be attwater. and no sooner was the thought formed (which was a sentence) than his whole mind of man ran in a panic to the other side: and when he looked within himself, he was aware only of turbulence and inarticulate outcry. in all this there was no thought of robert herrick. he had complied with the ebb-tide in man's affairs, and the tide had carried him away; he heard already the roaring of the maelstrom that must hurry him under. and in his bedevilled and dishonoured soul there was no thought of self. for how long he walked silent by his companion herrick had no guess. the clouds rolled suddenly away; the orgasm was over; he found himself placid with the placidity of despair; there returned to him the power of commonplace speech; and he heard with surprise his own voice say: "what a lovely evening!" "is it not?" said attwater. "yes, the evenings here would be very pleasant if one had anything to do. by day, of course, one can shoot." "you shoot?" asked herrick. "yes, i am what you would call a fine shot," said attwater. "it is faith; i believe my balls will go true; if i were to miss once, it would spoil me for nine months." "you never miss, then?" said herrick. "not unless i mean to," said attwater. "but to miss nicely is the art. there was an old king one knew in the western islands, who used to empty a winchester all round a man, and stir his hair or nick a rag out of his clothes with every ball except the last; and that went plump between the eyes. it was pretty practice." "you could do that?" asked herrick, with a sudden chill. "o, i can do anything," returned the other. "you do not understand: what must be, must." they were now come near to the back part of the house. one of the men was engaged about the cooking-fire, which burned with the clear, fierce, essential radiance of cocoa-nut shells. a fragrance of strange meats was in the air. all round in the verandahs lamps were lighted, so that the place shone abroad in the dusk of the trees with many complicated patterns of shadow. "come and wash your hands," said attwater, and led the way into a clean, matted room with a cot bed, a safe, a shelf or two of books in a glazed case, and an iron washing-stand. presently he cried in the native, and there appeared for a moment in the doorway a plump and pretty young woman with a clean towel. "hullo!" cried herrick, who now saw for the first time the fourth survivor of the pestilence, and was startled by the recollection of the captain's orders. "yes," said attwater, "the whole colony lives about the house, what's left of it. we are all afraid of devils, if you please! and taniera and she sleep in the front parlour, and the other boy on the verandah." "she is pretty," said herrick. "too pretty," said attwater. "that was why i had her married. a man never knows when he may be inclined to be a fool about women; so when we were left alone i had the pair of them to the chapel and performed the ceremony. she made a lot of fuss. i do not take at all the romantic view of marriage," he explained. "and that strikes you as a safeguard?" asked herrick with amazement. "certainly. i am a plain man and very literal. _whom god hath joined together_ are the words, i fancy. so one married them, and respects the marriage," said attwater. "ah!" said herrick. "you see, i may look to make an excellent marriage when i go home," began attwater confidentially. "i am rich. this safe alone"--laying his hand upon it--"will be a moderate fortune, when i have the time to place the pearls upon the market. here are ten years' accumulation from a lagoon, where i have had as many as ten divers going all day long; and i went further than people usually do in these waters, for i rotted a lot of shell and did splendidly. would you like to see them?" this confirmation of the captain's guess hit herrick hard, and he contained himself with difficulty. "no, thank you, i think not," said he. "i do not care for pearls. i am very indifferent to all these...." "gewgaws?" suggested attwater. "and yet i believe you ought to cast an eye on my collection, which is really unique, and which--o! it is the case with all of us and everything about us!--hangs by a hair. to-day it groweth up and flourisheth; to-morrow it is cut down and cast into the oven. to-day it is here and together in this safe; to-morrow--to-night!--it may be scattered. thou fool, this night thy soul shall be required of thee." "i do not understand you," said herrick. "not?" said attwater. "you seem to speak in riddles," said herrick unsteadily. "i do not understand what manner of man you are, nor what you are driving at." attwater stood with his hands upon his hips, and his head bent forward. "i am a fatalist," he replied, "and just now (if you insist on it) an experimentalist. talking of which, by the by, who painted out the schooner's name?" he said, with mocking softness, "because, do you know? one thinks it should be done again. it can still be partly read; and whatever is worth doing is surely worth doing well. you think with me? that is so nice! well, shall we step on the verandah? i have a dry sherry that i would like your opinion of." herrick followed him forth to where, under the light of the hanging lamps, the table shone with napery and crystal; followed him as the criminal goes with the hangman, or the sheep with the butcher; took the sherry mechanically, drank it, and spoke mechanical words of praise. the object of his terror had become suddenly inverted; till then he had seen attwater trussed and gagged, a helpless victim, and had longed to run in and save him; he saw him now tower up mysterious and menacing, the angel of the lord's wrath, armed with knowledge and threatening judgment. he set down his glass again, and was surprised to see it empty. "you go always armed?" he said, and the next moment could have plucked his tongue out. "always," said attwater. "i have been through a mutiny here; that was one of my incidents of missionary life." and just then the sound of voices reached them, and looking forth from the verandah they saw huish and the captain drawing near. chapter ix the dinner party they sat down to an island dinner, remarkable for its variety and excellence: turtle-soup and steak, fish, fowls, a sucking-pig, a cocoa-nut salad, and sprouting cocoa-nut roasted for dessert. not a tin had been opened; and save for the oil and vinegar in the salad, and some green spears of onion which attwater cultivated and plucked with his own hand, not even the condiments were european. sherry, hock, and claret succeeded each other, and the _farallone_ champagne brought up the rear with the dessert. it was plain that, like so many of the extremely religious in the days before teetotalism, attwater had a dash of the epicure. for such characters it is softening to eat well; doubly so to have designed and had prepared an excellent meal for others; and the manners of their host were agreeably mollified in consequence. a cat of huge growth sat on his shoulder purring, and occasionally, with a deft paw, capturing a morsel in the air. to a cat he might be likened himself, as he lolled at the head of his table, dealing out attentions and innuendoes, and using the velvet and the claw indifferently. and both huish and the captain fell progressively under the charm of his hospitable freedom. over the third guest the incidents of the dinner may be said to have passed for long unheeded. herrick accepted all that was offered him, ate and drank without tasting, and heard without comprehension. his mind was singly occupied in contemplating the horror of the circumstances in which he sat. what attwater knew, what the captain designed, from which side treachery was to be first expected, these were the ground of his thoughts. there were times when he longed to throw down the table and flee into the night. and even that was debarred him; to do anything, to say anything, to move at all, were only to precipitate the barbarous tragedy; and he sat spellbound, eating with white lips. two of his companions observed him narrowly, attwater with raking, sidelong glances that did not interrupt his talk, the captain with a heavy and anxious consideration. "well, i must say this sherry is a really prime article," said huish. "'ow much does it stand you in, if it's a fair question?" "a hundred and twelve shillings in london, and the freight to valparaiso, and on again," said attwater. "it strikes one as really not a bad fluid." "a 'undred and twelve!" murmured the clerk, relishing the wine and the figures in a common ecstasy: "o my!" "so glad you like it," said attwater. "help yourself, mr. whish, and keep the bottle by you." "my friend's name is huish and not whish, sir," said the captain, with a flush. "i beg your pardon, i am sure. huish and not whish; certainly," said attwater. "i was about to say that i have still eight dozen," he added, fixing the captain with his eye. "eight dozen what?" said davis. "sherry," was the reply. "eight dozen excellent sherry. why, it seems almost worth it in itself--to a man fond of wine." the ambiguous words struck home to guilty consciences, and huish and the captain sat up in their places and regarded him with a scare. "worth what?" said davis. "a hundred and twelve shillings," replied attwater. the captain breathed hard for a moment. he reached out far and wide to find any coherency in these remarks; then, with a great effort, changed the subject. "i allow we are about the first white men upon this island, sir," said he. attwater followed him at once, and with entire gravity, to the new ground. "myself and dr. symonds excepted, i should say the only ones," he returned. "and yet who can tell? in the course of the ages some one may have lived here, and we sometimes think that some one must. the coco-palms grow all round the island, which is scarce like nature's planting. we found besides, when we landed, an unmistakable cairn upon the beach; use unknown; but probably erected in the hope of gratifying some mumbo-jumbo whose very name is forgotten, by some thick-witted gentry whose very bones are lost. then the island (witness the directory) has been twice reported; and since my tenancy, we have had two wrecks, both derelict. the rest is conjecture." "dr. symonds is your partner, i guess?" said davis. "a dear fellow, symonds! how he would regret it, if he knew you had been here!" said attwater. "'e's on the _trinity 'all_, ain't he?" asked huish. "and if you could tell me where the _trinity 'all_ was, you would confer a favour, mr. whish!" was the reply. "i suppose she has a native crew?" said davis. "since the secret has been kept ten years, one would suppose she had," replied attwater. "well, now, see 'ere!" said huish. "you have everythink about you in no end style, and no mistake, but i tell you it wouldn't do for me. too much of 'the old rustic bridge by the mill'; too retired by 'alf. give me the sound of bow bells!" "you must not think it was always so," replied attwater. "this was once a busy shore, although now, hark! you can hear the solitude. i find it stimulating. and talking of the sound of bells, kindly follow a little experiment of mine in silence." there was a silver bell at his right hand to call the servants; he made them a sign to stand still, struck the bell with force, and leaned eagerly forward. the note rose clear and strong; it rang out clear and far into the night and over the deserted island; it died into the distance until there only lingered in the porches of the ear a vibration that was sound no longer. "empty houses, empty sea, solitary beaches!" said attwater. "and yet god hears the bell! and yet we sit in this verandah on a lighted stage with all heaven for spectators! and you call that solitude?" there followed a bar of silence, during which the captain sat mesmerised. then attwater laughed softly. "these are the diversions of a lonely man," he resumed, "and possibly not in good taste. one tells oneself these little fairy tales for company. if there _should_ happen to be anything in folk-lore, mr. hay? but here comes the claret. one does not offer you lafitte, captain, because i believe it is all sold to the railroad dining-cars in your great country; but this brâne-mouton is of a good year, and mr. whish will give me news of it." "that's a queer idea of yours!" cried the captain, bursting with a sigh from the spell that had bound him. "so you mean to tell me now, that you sit here evenings and ring up ... well, ring on the angels ... by yourself?" "as a matter of historic fact, and since you put it directly, one does not," said attwater. "why ring a bell, when there flows out from oneself and everything about one a far more momentous silence? the least beat of my heart and the least thought in my mind echoing into eternity for ever and for ever and for ever." "o, look 'ere," said huish, "turn down the lights at once, and the band of 'ope will oblige! this ain't a spiritual séance." "no folk-lore about mr. whish--i beg your pardon, captain: huish, not whish, of course," said attwater. as the boy was filling huish's glass, the bottle escaped from his hand and was shattered, and the wine spilt on the verandah floor. instant grimness as of death appeared in the face of attwater; he smote the bell imperiously, and the two brown natives fell into the attitude of attention and stood mute and trembling. there was just a moment of silence and hard looks; then followed a few savage words in the native; and, upon a gesture of dismissal, the service proceeded as before. none of the party had as yet observed upon the excellent bearing of the two men. they were dark, undersized, and well set up; stepped softly, waited deftly, brought on the wines and dishes at a look, and their eyes attended studiously on their master. "where do you get your labour from anyway?" asked davis. "ah, where not?" answered attwater. "not much of a soft job, i suppose?" said the captain. "if you will tell me where getting labour is!" said attwater, with a shrug. "and of course, in our case, as we could name no destination, we had to go far and wide and do the best we could. we have gone as far west as the kingsmills and as far south as rapa-iti. pity symonds isn't here! he is full of yarns. that was his part, to collect them. then began mine, which was the educational." "you mean to run them?" said davis. "ay! to run them," said attwater. "wait a bit," said davis; "i'm out of my depth. how was this? do you mean to say you did it single-handed?" "one did it single-handed," said attwater, "because there was nobody to help one." "by god, but you must be a holy terror!" cried the captain, in a glow of admiration. "one does one's best," said attwater. "well, now!" said davis, "i have seen a lot of driving in my time, and been counted a good driver myself. i fought my way, third mate, round the cape horn with a push of packet-rats that would have turned the devil out of hell and shut the door on him; and i tell you, this racket of mr. attwater's takes the cake. in a ship, why, there ain't nothing to it! you've got the law with you, that's what does it. but put me down on this blame' beach alone, with nothing but a whip and a mouthful of bad words, and ask me to ... no, _sir_! it's not good enough! i haven't got the sand for that!" cried davis. "it's the law behind," he added; "it's the law does it, every time!" "the beak ain't as black as he's sometimes pynted," observed huish humorously. "well, one got the law after a fashion," said attwater. "one had to be a number of things. it was sometimes rather a bore." "i should smile!" said davis. "rather lively, i should think!" "i daresay we mean the same thing," said attwater. "however, one way or another, one got it knocked into their heads that they _must_ work, and they _did_ ... until the lord took them!" "'ope you made 'em jump," said huish. "when it was necessary, mr. whish, i made them jump," said attwater. "you bet you did," cried the captain. he was a good deal flushed, but not so much with wine as admiration; and his eyes drank in the huge proportions of the other with delight. "you bet you did, and you bet that i can see you doing it! by god, you're a man, and you can say i said so." "too good of you, i'm sure," said attwater. "did you--did you ever have crime here?" asked herrick, breaking his silence with a pungent voice. "yes," said attwater, "we did." "and how did you handle that, sir?" cried the eager captain. "well, you see, it was a queer case," replied attwater. "it was a case that would have puzzled solomon. shall i tell it you? yes?" the captain rapturously accepted. "well," drawled attwater, "here is what it was. i daresay you know two types of natives, which may be called the obsequious and the sullen? well, one had them, the types themselves, detected in the fact; and one had them together. obsequiousness ran out of the first like wine out of a bottle, sullenness congested in the second. obsequiousness was all smiles; he ran to catch your eye, he loved to gabble; and he had about a dozen words of beach english, and an eighth-of-an-inch veneer of christianity. sullens was industrious; a big down-looking bee. when he was spoken to, he answered with a black look and a shrug of one shoulder, but the thing would be done. i don't give him to you for a model of manners; there was nothing showy about sullens; but he was strong and steady, and ungraciously obedient. now sullens got into trouble; no matter how; the regulations of the place were broken, and he was punished accordingly--without effect. so, the next day, and the next, and the day after, till i began to be weary of the business, and sullens (i am afraid) particularly so. there came a day when he was in fault again, for the--o perhaps the thirtieth time; and he rolled a dull eye upon me, with a spark in it, and appeared to speak. now the regulations of the place are formal upon one point: we allow no explanations; none are received, none allowed to be offered. so one stopped him instantly, but made a note of the circumstance. the next day he was gone from the settlement. there could be nothing more annoying; if the labour took to running away, the fishery was wrecked. there are sixty miles of this island, you see, all in length like the queen's highway; the idea of pursuit in such a place was a piece of single-minded childishness, which one did not entertain. two days later, i made a discovery; it came in upon me with a flash that sullens had been unjustly punished from beginning to end, and the real culprit throughout had been obsequiousness. the native who talks, like the woman who hesitates, is lost. you set him talking and lying; and he talks, and lies, and watches your face to see if he has pleased you; till, at last, out comes the truth! it came out of obsequiousness in the regular course. i said nothing to him; i dismissed him; and late as it was, for it was already night, set off to look for sullens. i had not far to go: about two hundred yards up the island the moon showed him to me. he was hanging in a coco-palm--i'm not botanist enough to tell you how--but it's the way, in nine cases out of ten, these natives commit suicide. his tongue was out, poor devil, and the birds had got at him. i spare you details: he was an ugly sight! i gave the business six good hours of thinking in this verandah. my justice had been made a fool of; i don't suppose that i was ever angrier. next day, i had the conch sounded and all hands out before sunrise. one took one's gun, and led the way, with obsequiousness. he was very talkative; the beggar supposed that all was right now he had confessed; in the old schoolboy phrase he was plainly 'sucking up' to me; full of protestations of good-will and good behaviour; to which one answered one really can't remember what. presently the tree came in sight, and the hanged man. they all burst out lamenting for their comrade in the island way, and obsequiousness was the loudest of the mourners. he was quite genuine; a noxious creature without any consciousness of guilt. well, presently--to make a long story short--one told him to go up the tree. he stared a bit, looked at one with a trouble in his eye, and had rather a sickly smile; but went. he was obedient to the last; he had all the pretty virtues, but the truth was not in him. so soon as he was up he looked down, and there was the rifle covering him; and at that he gave a whimper like a dog. you could hear a pin drop; no more keening now. there they all crouched upon the ground with bulging eyes; there was he in the tree-top, the colour of lead; and between was the dead man, dancing a bit in the air. he was obedient to the last, recited his crime, recommended his soul to god. and then...." attwater paused, and herrick, who had been listening attentively, made a convulsive movement which upset his glass. "and then?" said the breathless captain. "shot," said attwater. "they came to the ground together." herrick sprang to his feet with a shriek and an insensate gesture. "it was a murder!" he screamed, "a cold-hearted, bloody-minded murder! you monstrous being! murderer and hypocrite--murderer and hypocrite--murderer and hypocrite----" he repeated, and his tongue stumbled among the words. the captain was by him in a moment. "herrick!" he cried, "behave yourself! here, don't be a blame' fool!" herrick struggled in his embrace like a frantic child, and suddenly bowing his face in his hands, choked into a sob, the first of many, which now convulsed his body silently, and now jerked from him indescribable and meaningless sounds. "your friend appears over-excited," remarked attwater, sitting unmoved but all alert at table. "it must be the wine," replied the captain. "he ain't no drinking man, you see. i--i think i'll take him away. a walk'll sober him up, i guess." he led him without resistance out of the verandah and into the night, in which they soon melted; but still for some time, as they drew away, his comfortable voice was to be heard soothing and remonstrating, and herrick answering, at intervals, with the mechanical noises of hysteria. "'e's like a bloomin' poultry yard!" observed huish, helping himself to wine (of which he spilled a good deal) with gentlemanly ease. "a man should learn to beyave at table," he added. "rather bad form, is it not?" said attwater. "well, well, we are left _tête-à-tête_. a glass of wine with you, mr. whish!" chapter x the open door the captain and herrick meanwhile turned their back upon the lights in attwater's verandah, and took a direction towards the pier and the beach of the lagoon. the isle, at this hour, with its smooth floor of sand, the pillared roof overhead, and the prevalent illumination of the lamps, wore an air of unreality, like a deserted theatre or a public garden at midnight. a man looked about him for the statues and tables. not the least air of wind was stirring among the palms, and the silence was emphasised by the continuous clamour of the surf from the seashore, as it might be of traffic in the next street. still talking, still soothing him, the captain hurried his patient on, brought him at last to the lagoon side, and leading him down the beach, laved his head and face with the tepid water. the paroxysm gradually subsided, the sobs became less convulsive and then ceased; by an odd but not quite unnatural conjunction, the captain's soothing current of talk died away at the same time and by proportional steps, and the pair remained sunk in silence. the lagoon broke at their feet in petty wavelets, and with a sound as delicate as a whisper; stars of all degrees looked down on their own images in that vast mirror; and the more angry colour of the _farallone's_ riding lamp burned in the middle distance. for long they continued to gaze on the scene before them, and hearken anxiously to the rustle and tinkle of that miniature surf, or the more distant and loud reverberations from the outer coast. for long speech was denied them; and when the words came at last, they came to both simultaneously. "say, herrick ..." the captain was beginning. but herrick, turning swiftly towards his companion, bent him down with the eager cry: "let's up anchor, captain, and to sea!" "where to, my son?" said the captain. "up anchor's easy saying. but where to?" "to sea," responded herrick. "the sea's big enough! to sea--away from this dreadful island and that, o! that sinister man!" "o, we'll see about that," said davis. "you brace up, and we'll see about that. you're all run down, that's what's wrong with you; you're all nerves, like jemimar; you've got to brace up good and be yourself again, and then we'll talk." "to sea," reiterated herrick, "to sea to-night--now--this moment!" "it can't be, my son," replied the captain firmly. "no ship of mine puts to sea without provisions; you can take that for settled." "you don't seem to understand," said herrick. "the whole thing is over, i tell you. there is nothing to do here, when he knows all. that man there with the cat knows all; can't you take it in?" "all what?" asked the captain, visibly discomposed. "why, he received us like a perfect gentleman and treated us real handsome, until you began with your foolery--and i must say i seen men shot for less, and nobody sorry! what more do you expect anyway?" herrick rocked to and fro upon the sand, shaking his head. "guying us," he said; "he was guying us--only guying us; it's all we're good for." "there was one queer thing, to be sure," admitted the captain, with a misgiving of the voice; "that about the sherry. damned if i caught on to that. say, herrick, you didn't give me away?" "o! give you away!" repeated herrick with weary, querulous scorn. "what was there to give away? we're transparent; we've got rascal branded on us: detected rascal--detected rascal! why, before he came on board, there was the name painted out, and he saw the whole thing. he made sure we would kill him there and then, and stood guying you and huish on the chance. he calls that being frightened! next he had me ashore; a fine time i had! _the two wolves_, he calls you and huish. _what is the puppy doing with the two wolves?_ he asked. he showed me his pearls; he said they might be dispersed before morning, and _all hung by a hair_--and smiled as he said it, such a smile! o, it's no use, i tell you! he knows all, he sees through all; we only make him laugh with our pretences--he looks at us and laughs like god!" there was a silence. davis stood with contorted brows, gazing into the night. "the pearls?" he said suddenly. "he showed them to you? he has them?" "no, he didn't show them; i forgot: only the safe they were in," said herrick. "but you'll never get them!" "i've two words to say to that," said the captain. "do you think he would have been so easy at table, unless he was prepared?" cried herrick. "the servants were both armed. he was armed himself; he always is; he told me. you will never deceive his vigilance. davis, i know it! it's all up, i tell you, and keep telling you and proving it. all up; all up. there's nothing for it, there's nothing to be done: all gone: life, honour, love. o my god, my god, why was i born?" another pause followed upon this outburst. the captain put his hands to his brow. "another thing!" he broke out. "why did he tell you all this? seems like madness to me!" herrick shook his head with gloomy iteration. "you wouldn't understand if i were to tell you," said he. "i guess i can understand any blame' thing that you can tell me," said the captain. "well, then, he's a fatalist," said herrick. "what's that? a fatalist?" said davis. "o, it's a fellow that believes a lot of things," said herrick; "believes that his bullets go true; believes that all falls out as god chooses, do as you like to prevent it; and all that." "why, i guess i believe right so myself," said davis. "you do?" said herrick. "you bet i do!" says davis. herrick shrugged his shoulders. "well, you must be a fool," said he, and he leaned his head upon his knees. the captain stood biting his hands. "there's one thing sure," he said at last. "i must get huish out of that. _he's_ not fit to hold his end up with a man like you describe." and he turned to go away. the words had been quite simple; not so the tone; and the other was quick to catch it. "davis!" he cried, "no! don't do it. spare _me_, and don't do it--spare yourself, and leave it alone--for god's sake, for your children's sake!" his voice rose to a passionate shrillness; another moment, and he might be overheard by their not distant victim. but davis turned on him with a savage oath and gesture; and the miserable young man rolled over on his face on the sand, and lay speechless and helpless. the captain meanwhile set out rapidly for attwater's house. as he went, he considered with himself eagerly, his thoughts racing. the man had understood, he had mocked them from the beginning; he would teach him to make a mockery of john davis! herrick thought him a god; give him a second to aim in, and the god was overthrown. he chuckled as he felt the butt of his revolver. it should be done now, as he went in. from behind? it was difficult to get there. from across the table? no, the captain preferred to shoot standing, so as you could be sure to get your hand upon your gun. the best would be to summon huish, and when attwater stood up and turned--ah, then would be the moment. wrapped in this ardent prefiguration of events, the captain posted towards the house with his head down. "hands up! halt!" cried the voice of attwater. and the captain, before he knew what he was doing, had obeyed. the surprise was complete and irremediable. coming on the top crest of his murderous intentions, he had walked straight into an ambuscade, and now stood, with his hands impotently lifted, staring at the verandah. the party was now broken up. attwater leaned on a post, and kept davis covered with a winchester. one of the servants was hard by with a second at the port arms, leaning a little forward, round-eyed with eager expectancy. in the open space at the head of the stair, huish was partly supported by the other native; his face wreathed in meaningless smiles, his mind seemingly sunk in the contemplation of an unlighted cigar. "well," said attwater, "you seem to me to be a very twopenny pirate!" the captain uttered a sound in his throat for which we have no name; rage choked him. "i am going to give you mr. whish--or the wine-sop that remains of him," continued attwater. "he talks a great deal when he drinks, captain davis of the _sea ranger_. but i have quite done with him--and return the article with thanks. now," he cried sharply; "another false movement like that, and your family will have to deplore the loss of an invaluable parent; keep strictly still, davis." attwater said a word in the native, his eye still undeviatingly fixed on the captain; and the servant thrust huish smartly forward from the brink of the stair. with an extraordinary simultaneous dispersion of his members, that gentleman bounded forth into space, struck the earth, ricocheted, and brought up with his arms about a palm. his mind was quite a stranger to these events; the expression of anguish that deformed his countenance at the moment of the leap was probably mechanical; and he suffered these convulsions in silence; clung to the tree like an infant; and seemed, by his dips, to suppose himself engaged in the pastime of bobbing for apples. a more finely sympathetic mind or a more observant eye might have remarked, a little in front of him on the sand and still quite beyond reach, the unlighted cigar. "there is your whitechapel carrion!" said attwater. "and now you might very well ask me why i do not put a period to you at once, as you deserve. i will tell you why, davis. it is because i have nothing to do with the _sea ranger_ and the people you drowned, or the _farallone_ and the champagne that you stole. that is your account with god; he keeps it, and he will settle it when the clock strikes. in my own case, i have nothing to go on but suspicion, and i do not kill on suspicion, not even vermin like you. but understand: if ever i see any of you again, it is another matter, and you shall eat a bullet. and now take yourself off. march! and as you value what you call your life, keep your hands up as you go!" the captain remained as he was, his hands up, his mouth open: mesmerised with fury. "march!" said attwater. "one--two--three!" and davis turned and passed slowly away. but even as he went, he was meditating a prompt, offensive return. in the twinkling of an eye he had leaped behind a tree; and was crouching there, pistol in hand, peering from either side of his place of ambush with bared teeth; a serpent already poised to strike. and already he was too late. attwater and his servants had disappeared; and only the lamps shone on the deserted table and the bright sand about the house, and threw into the night in all directions the strong and tall shadows of the palms. davis ground his teeth. where were they gone, the cowards? to what hole had they retreated beyond reach? it was in vain he should try anything, he, single and with a second-hand revolver, against three persons, armed with winchesters, and who did not show an ear out of any of the apertures of that lighted and silent house? some of them might have already ducked below it from the rear, and be drawing a bead upon him at that moment from the low-browed crypt, the receptacle of empty bottles and broken crockery. no, there was nothing to be done but to bring away (if it were still possible) his shattered and demoralised forces. "huish," he said, "come along." "'s lose my ciga'," said huish, reaching vaguely forward. the captain let out a rasping oath. "come right along here," said he. "'s all righ'. sleep here 'th atty-attwa. go boar' t'morr'," replied the festive one. "if you don't come, and come now, by the living god, i'll shoot you!" cried the captain. it is not to be supposed that the sense of these words in any way penetrated to the mind of huish; rather that, in a fresh attempt upon the cigar, he overbalanced himself and came flying erratically forward: a course which brought him within reach of davis. "now you walk straight," said the captain, clutching him, "or i'll know why not!" "'s lose my ciga'," replied huish. the captain's contained fury blazed up for a moment. he twisted huish round, grasped him by the neck of the coat, ran him in front of him to the pier-end, and flung him savagely forward on his face. "look for your cigar then, you swine!" said he, and blew his boat-call till the pea in it ceased to rattle. an immediate activity responded on board the _farallone_; far-away voices, and soon the sound of oars, floated along the surface of the lagoon; and at the same time, from nearer hand, herrick aroused himself and strolled languidly up. he bent over the insignificant figure of huish, where it grovelled, apparently insensible, at the base of the figure-head. "dead?" he asked. "no, he's not dead," said davis. "and attwater?" asked herrick. "now you just shut your head!" replied davis. "you can do that, i fancy, and by god, i'll show you how! i'll stand no more of your drivel." they waited accordingly in silence till the boat bumped on the farthest piers; then raised huish, head and heels, carried him down the gangway, and flung him summarily in the bottom. on the way out he was heard murmuring of the loss of his cigar; and after he had been handed up the side like baggage, and cast down in the alleyway to slumber, his last audible expression was: "splen'l fl' attwa'!" this the expert construed into "splendid fellow, attwater"; with so much innocence had this great spirit issued from the adventures of the evening. the captain went and walked in the waist with brief irate turns; herrick leaned his arms on the taffrail; the crew had all turned in. the ship had a gentle, cradling motion; at times a block piped like a bird. on shore, through the colonnade of palm stems, attwater's house was to be seen shining steadily with many lamps. and there was nothing else visible, whether in the heaven above or in the lagoon below, but the stars and their reflections. it might have been minutes, or it might have been hours, that herrick leaned there, looking in the glorified water and drinking peace. "a bath of stars," he was thinking; when a hand was laid at last on his shoulder. "herrick," said the captain, "i've been walking off my trouble." a sharp jar passed through the young man, but he neither answered nor so much as turned his head. "i guess i spoke a little rough to you on shore," pursued the captain; "the fact is, i was real mad; but now it's over, and you and me have to turn to and think." "i will _not_ think," said herrick. "here, old man!" said davis kindly; "this won't fight, you know! you've got to brace up and help me get things straight. you're not going back on a friend? that's not like you, herrick!" "o yes, it is," said herrick. "come, come!" said the captain, and paused as if quite at a loss. "look here," he cried, "you have a glass of champagne. _i_ won't touch it, so that'll show you if i'm in earnest. but it's just the pick-me-up for you; it'll put an edge on you at once." "o, you leave me alone!" said herrick, and turned away. the captain caught him by the sleeve; and he shook him off and turned on him, for the moment like a demoniac. "go to hell in your own way!" he cried. and he turned away again, this time unchecked, and stepped forward to where the boat rocked alongside and ground occasionally against the schooner. he looked about him. a corner of the house was interposed between the captain and himself; all was well; no eye must see him in that last act. he slid silently into the boat; thence, silently, into the starry water. instinctively he swam a little; it would be time enough to stop by and by. the shock of the immersion brightened his mind immediately. the events of the ignoble day passed before him in a frieze of pictures, and he thanked "whatever gods there be" for that open door of suicide. in such a little while he would be done with it, the random business at an end, the prodigal son come home. a very bright planet shone before him and drew a trenchant wake along the water. he took that for his line and followed it. that was the last earthly thing that he should look upon; that radiant speck, which he had soon magnified into a city of laputa, along whose terraces there walked men and women of awful and benignant features, who viewed him with distant commiseration. these imaginary spectators consoled him; he told himself their talk, one to another; it was of himself and his sad destiny. from such flights of fancy he was aroused by the growing coldness of the water. why should he delay? here, where he was now, let him drop the curtain, let him seek the ineffable refuge, let him lie down with all races and generations of men in the house of sleep. it was easy to say, easy to do. to stop swimming: there was no mystery in that, if he could do it. could he? and he could not. he knew it instantly. he was aware instantly of an opposition in his members, unanimous and invincible, clinging to life with a single and fixed resolve, finger by finger, sinew by sinew; something that was at once he and not he--at once within and without him; the shutting of some miniature valve in his brain, which a single manly thought should suffice to open--and the grasp of an external fate ineluctable as gravity. to any man there may come at times a consciousness that there blows, through all the articulations of his body, the wind of a spirit not wholly his; that his mind rebels; that another girds him and carries him whither he would not. it came now to herrick, with the authority of a revelation. there was no escape possible. the open door was closed in his recreant face. he must go back into the world and amongst men without illusion. he must stagger on to the end with the pack of his responsibility and his disgrace, until a cold, a blow, a merciful chance ball, or the more merciful hangman, should dismiss him from his infamy. there were men who could commit suicide; there were men who could not; and he was one who could not. for perhaps a minute there raged in his mind the coil of this discovery; then cheerless certitude followed; and, with an incredible simplicity of submission to ascertained fact, he turned round and struck out for shore. there was a courage in this which he could not appreciate; the ignobility of his cowardice wholly occupying him. a strong current set against him like a wind in his face; he contended with it heavily, wearily, without enthusiasm, but with substantial advantage; marking his progress the while, without pleasure, by the outline of the trees. once he had a moment of hope. he heard to the southward of him, towards the centre of the lagoon, the wallowing of some great fish, doubtless a shark, and paused for a little, treading water. might not this be the hangman? he thought. but the wallowing died away; mere silence succeeded; and herrick pushed on again for the shore, raging as he went at his own nature. ay, he would wait for the shark; but if he had heard him coming!... his smile was tragic. he could have spat upon himself. about three in the morning, chance, and the set of the current, and the bias of his own right-handed body so decided it between them that he came to shore upon the beach in front of attwater's. there he sat down, and looked forth into a world without any of the lights of hope. the poor diving-dress of self-conceit was sadly tattered! with the fairy tale of suicide, of a refuge always open to him, he had hitherto beguiled and supported himself in the trials of life; and behold! that also was only a fairy tale, that also was folk-lore. with the consequences of his acts he saw himself implacably confronted for the duration of life: stretched upon a cross, and nailed there with the iron bolts of his own cowardice. he had no tears; he told himself no stories. his disgust with himself was so complete, that even the process of apologetic mythology had ceased. he was like a man cast down from a pillar, and every bone broken. he lay there, and admitted the facts, and did not attempt to rise. dawn began to break over the far side of the atoll, the sky brightened, the clouds became dyed with gorgeous colours, the shadows of the night lifted. and, suddenly, herrick was aware that the lagoon and the trees wore again their daylight livery; and he saw, on board the _farallone_, davis extinguishing the lantern, and smoke rising from the galley. davis, without doubt, remarked and recognised the figure on the beach; or perhaps hesitated to recognise it; for after he had gazed a long while from under his hand, he went into the house and fetched a glass. it was very powerful; herrick had often used it. with an instinct of shame he hid his face in his hands. "and what brings you here, mr. herrick-hay, or mr. hay-herrick?" asked the voice of attwater. "your back view from my present position is remarkably fine, and i would continue to present it. we can get on very nicely as we are, and if you were to turn round, do you know? i think it would be awkward." herrick slowly rose to his feet; his heart throbbed hard, a hideous excitement shook him, but he was master of himself. slowly he turned and faced attwater and the muzzle of a pointed rifle. "why could i not do that last night?" he thought. "well, why don't you fire?" he said aloud, in a voice that trembled. attwater slowly put his gun under his arm, then his hands in his pockets. "what brings you here?" he repeated. "i don't know," said herrick; and then, with a cry: "can you do anything with me?" "are you armed?" said attwater. "i ask for the form's sake." "armed? no!" said herrick. "o yes, i am, too!" and he flung upon the beach a dripping pistol. "you are wet," said attwater. "yes, i am wet," said herrick. "can you do anything with me?" attwater read his face attentively. "it would depend a good deal upon what you are," said he. "what i am? a coward!" said herrick. "there is very little to be done with that," said attwater. "and yet the description hardly strikes one as exhaustive." "o, what does it matter?" cried herrick. "here i am. i am broken crockery; i am a burst drum; the whole of my life is gone to water; i have nothing left that i believe in, except my living horror of myself. why do i come to you? i don't know; you are cold, cruel, hateful; and i hate you, or i think i hate you. but you are an honest man, an honest gentleman. i put myself, helpless, in your hands. what must i do? if i can't do anything, be merciful and put a bullet through me; it's only a puppy with a broken leg!" "if i were you, i would pick up that pistol, come up to the house, and put on some dry clothes," said attwater. "if you really mean it?" said herrick. "you know they--we--they.... but you know all." "i know quite enough," said attwater. "come up to the house." and the captain, from the deck of the _farallone_, saw the two men pass together under the shadow of the grove. chapter xi david and goliath huish had bundled himself up from the glare of the day--his face to the house, his knees retracted. the frail bones in the thin tropical raiment seemed scarce more considerable than a fowl's; and davis, sitting on the rail with his arm about a stay, contemplated him with gloom, wondering what manner of counsel that insignificant figure should contain. for since herrick had thrown him off and deserted to the enemy, huish, alone of mankind, remained to him to be a helper and oracle. he considered their position with a sinking heart. the ship was a stolen ship; the stores, whether from initial carelessness or ill administration during the voyage, were insufficient to carry them to any port except back to papeete; and there retribution waited in the shape of a gendarme, a judge with a queer-shaped hat, and the horror of distant noumea. upon that side there was no glimmer of hope. here, at the island, the dragon was roused; attwater with his men and his winchesters watched and patrolled the house; let him who dare approach it. what else was then left but to sit there, inactive, pacing the decks, until the _trinity hall_ arrived and they were cast into irons, or until the food came to an end, and the pangs of famine succeeded? for the _trinity hall_ davis was prepared; he would barricade the house, and die there defending it, like a rat in a crevice. but for the other? the cruise of the _farallone_, into which he had plunged, only a fortnight before, with such golden expectations, could this be the nightmare end of it? the ship rotting at anchor, the crew stumbling and dying in the scuppers? it seemed as if any extreme of hazard were to be preferred to so grisly a certainty; as if it would be better to up-anchor after all, put to sea at a venture, and, perhaps, perish at the hands of cannibals on one of the more obscure paumotus. his eye roved swiftly over sea and sky in quest of any promise of wind, but the fountains of the trade were empty. where it had run yesterday and for weeks before, a roaring blue river charioting clouds, silence now reigned; and the whole height of the atmosphere stood balanced. on the endless ribbon of island that stretched out to either hand of him its array of golden and green and silvery palms, not the most volatile frond was to be seen stirring; they drooped to their stable images in the lagoon like things carved of metal, and already their long line began to reverberate heat. there was no escape possible that day, none probable on the morrow. and still the stores were running out! then came over davis, from deep down in the roots of his being, or at least from far back among his memories of childhood and innocence, a wave of superstition. this run of ill-luck was something beyond natural; the chances of the game were in themselves more various: it seemed as if the devil must serve the pieces. the devil? he heard again the clear note of attwater's bell ringing abroad into the night, and dying away. how if god...? briskly he averted his mind. attwater: that was the point. attwater had food and a treasure of pearls; escape made possible in the present, riches in the future. they must come to grips with attwater; the man must die. a smoky heat went over his face, as he recalled the impotent figure he had made last night, and the contemptuous speeches he must bear in silence. rage, shame, and the love of life, all pointed the one way; and only invention halted: how to reach him? had he strength enough? was there any help in that misbegotten packet of bones against the house? his eyes dwelled upon him with a strange avidity, as though he would read into his soul; and presently the sleeper moved, stirred uneasily, turned suddenly round, and threw him a blinking look. davis maintained the same dark stare, and huish looked away again and sat up. "lord, i've an 'eadache on me!" said he. "i believe i was a bit swipey last night. w'ere's that cry-byby 'errick?" "gone," said the captain. "ashore?" cried huish. "o, i say! i'd 'a gone too." "would you?" said the captain. "yes, i would," replied huish. "i like attwater. 'e's all right; we got on like one o'clock when you were gone. and ain't his sherry in it, rather? it's like spiers and pond's amontillado! i wish i 'ad a drain of it now." he sighed. "well, you'll never get no more of it--that's one thing," said davis gravely. "'ere, wot's wrong with you, dyvis? coppers 'ot? well, look at _me_! _i_ ain't grumpy," said huish; "i'm as plyful as a canary-bird, i am." "yes," said davis, "you're playful; i own that; and you were playful last night, i believe, and a damned fine performance you made of it." "'allo!" said huish. "'ow's this? wot performance?" "well, i'll tell you," said the captain, getting slowly off the rail. and he did: at full length, with every wounding epithet and absurd detail repeated and emphasised; he had his own vanity and huish's upon the grill, and roasted them; and as he spoke he inflicted and endured agonies of humiliation. it was a plain man's masterpiece of the sardonic. "what do you think of it?" said he, when he had done, and looked down at huish, flushed and serious, and yet jeering. "i'll tell you wot it is," was the reply: "you and me cut a pretty dicky figure." "that's so," said davis, "a pretty measly figure, by god! and, by god, i want to see that man at my knees." "ah!" said huish. "'ow to get him there?" "that's it!" cried davis. "how to get hold of him! they're four to two; though there's only one man among them to count, and that's attwater. get a bead on attwater, and the others would cut and run and sing out like frightened poultry--and old man herrick would come round with his hat for a share of the pearls. no, _sir_! it's how to get hold of attwater! and we daren't even go ashore; he would shoot us in the boat like dogs." "are you particular about having him dead or alive?" asked huish. "i want to see him dead," said the captain. "ah, well!" said huish, "then i believe i'll do a bit of breakfast." and he turned into the house. the captain doggedly followed him. "what's this?" he asked. "what's your idea, anyway?" "o, you let me alone, will you?" said huish, opening a bottle of champagne. "you'll 'ear my idea soon enough. wyte till i pour some cham on my 'ot coppers." he drank a glass off, and affected to listen. "'ark!" said he, "'ear it fizz. like 'am frying, i declyre. 'ave a glass, do, and look sociable." "no!" said the captain, with emphasis; "no, i will not! there's business." "you p'ys your money and you tykes your choice, my little man," returned huish. "seems rather a shyme to me to spoil your breakfast for wot's really ancient 'istory." he finished three parts of a bottle of champagne, and nibbled a corner of biscuit, with extreme deliberation; the captain sitting opposite and champing the bit like an impatient horse. then huish leaned his arms on the table and looked davis in the face. "w'en you're ready!" said he. "well, now, what's your idea?" said davis, with a sigh. "fair play!" said huish. "what's yours?" "the trouble is that i've got none," replied davis; and wandered for some time in aimless discussion of the difficulties of their path, and useless explanations of his own fiasco. "about done?" said huish. "i'll dry up right here," replied davis. "well, then," said huish, "you give me your 'and across the table, and say, 'gawd strike me dead if i don't back you up.'" his voice was hardly raised, yet it thrilled the hearer. his face seemed the epitome of cunning, and the captain recoiled from it as from a blow. "what for?" said he. "luck," said huish. "substantial guarantee demanded." and he continued to hold out his hand. "i don't see the good of any such tomfoolery," said the other. "i do, though," returned huish. "gimme your 'and and say the words; then you'll 'ear my view of it. don't, and you don't." the captain went through the required form, breathing short, and gazing on the clerk with anguish. what to fear he knew not, yet he feared slavishly what was to fall from the pale lips. "now, if you'll excuse me 'alf a second," said huish, "i'll go and fetch the byby." "the baby?" said davis. "what's that?" "fragile. with care. this side up," replied the clerk with a wink, as he disappeared. he returned, smiling to himself, and carrying in his hand a silk handkerchief. the long stupid wrinkles ran up davis's brow as he saw it. what should it contain? he could think of nothing more recondite than a revolver. huish resumed his seat. "now," said he, "are you man enough to take charge of 'errick and the niggers? because i'll take care of hattwater." "how?" cried davis. "you can't!" "tut, tut!" said the clerk. "you gimme time. wot's the first point? the first point is that we can't get ashore, and i'll make you a present of that for a 'ard one. but 'ow about a flag of truce? would that do the trick, d'ye think? or would attwater simply blyze aw'y at us in the bloomin' boat like dawgs?" "no," said davis, "i don't believe he would." "no more do i," said huish; "i don't believe he would either; and i'm sure i 'ope he won't! so then you can call us ashore. next point is to get near the managin' direction. and for that i'm going to 'ave you write a letter, in w'ich you s'y you're ashymed to meet his eye, and that the bearer, mr. j. l. 'uish, is empowered to represent you. armed with w'ich seemin'ly simple expedient, mr. j. l. 'uish will proceed to business." he paused, like one who had finished, but still held davis with his eye. "how?" said davis. "why?" "well, you see, you're big," returned huish; "'e knows you 'ave a gun in your pocket, and anybody can see with 'alf an eye that you ain't the man to 'esitate about usin' it. so it's no go with you, and never was; you're out of the runnin', dyvis. but he won't be afryde of me, i'm such a little 'un! i'm unarmed--no kid about that--and i'll hold my 'ands up right enough." he paused. "if i can manage to sneak up nearer to him as we talk," he resumed, "you look out and back me up smart. if i don't, we go aw'y again, and nothink to 'urt. see?" the captain's face was contorted by the frenzied effort to comprehend. "no, i don't see," he cried; "i can't see. what do you mean?" "i mean to do for the beast!" cried huish, in a burst of venomous triumph. "i'll bring the 'ulkin' bully to grass. he's 'ad his larks out of me; i'm goin' to 'ave my lark out of 'im, and a good lark too!" "what is it?" said the captain, almost in a whisper. "sure you want to know?" asked huish. davis rose and took a turn in the house. "yes, i want to know," he said at last with an effort. "w'en your back's at the wall, you do the best you can, don't you?" began the clerk. "i s'y that, because i 'appen to know there's a prejudice against it; it's considered vulgar, awf'ly vulgar." he unrolled the handkerchief and showed a four-ounce jar. "this 'ere's vitriol, this is," said he. the captain stared upon him with a whitening face. "this is the stuff!" he pursued, holding it up. "this'll burn to the bone; you'll see it smoke upon 'im like 'ell-fire! one drop upon 'is bloomin' heyesight, and i'll trouble you for attwater!" "no, no, by god!" exclaimed the captain. "now, see 'ere, ducky," said huish, "this is my bean-feast, i believe? i'm goin' up to that man single-'anded, i am. 'e's about seven foot high, and i'm five foot one. 'e's a rifle in his 'and, 'e's on the look-out, 'e wasn't born yesterday. this is dyvid and goliar, i tell you! if i'd ast you to walk up and face the music i could understand. but i don't. i on'y ast you to stand by and spifflicate the niggers. it'll all come in quite natural; you'll see, else! fust thing, you know, you'll see him running round and 'owling like a good 'un...." "don't!" said davis. "don't talk of it!" "well, you _are_ a juggins!" exclaimed huish. "what did you want? you wanted to kill him, and tried to last night. you wanted to kill the 'ole lot of them, and tried to, and 'ere i show you 'ow; and because there's some medicine in a bottle you kick up this fuss!" "i suppose that's so," said davis. "it don't seem someways reasonable, only there it is." "it's the happlication of science, i suppose?" sneered huish. "i don't know what it is," cried davis, pacing the floor; "it's there! i draw the line at it. i can't put a finger to no such piggishness. it's too damned hateful!" "and i suppose it's all your fancy pynted it," said huish, "w'en you take a pistol and a bit o' lead, and copse a man's brains all over him? no accountin' for tystes." "i'm not denying it," said davis; "it's something here, inside of me. it's foolishness; i daresay it's dam foolishness. i don't argue; i just draw the line. isn't there no other way?" "look for yourself," said huish. "i ain't wedded to this, if you think i am; i ain't ambitious; i don't make a point of playin' the lead; i offer to, that's all, and if you can't show me better, by gawd, i'm goin' to!" "then the risk!" cried davis. "if you ast me straight, i should say it was a case of seven to one, and no takers," said huish. "but that's my look-out, ducky, and i'm gyme. look at me, dyvis, there ain't any shilly-shally about me. i'm gyme, that's wot i am: gyme all through." the captain looked at him. huish sat there preening his sinister vanity, glorying in his precedency in evil; and the villainous courage and readiness of the creature shone out of him like a candle from a lantern. dismay and a kind of respect seized hold on davis in his own despite. until that moment he had seen the clerk always hanging back, always listless, uninterested, and openly grumbling at a word of anything to do; and now, by the touch of an enchanter's wand, he beheld him sitting girt and resolved, and his face radiant. he had raised the devil, he thought; and asked who was to control him, and his spirits quailed. "look as long as you like," huish was going on. "you don't see any green in my eye! i ain't afryde of attwater, i ain't afryde of you, and i ain't afryde of words. you want to kill people, that's wot _you_ want; but you want to do it in kid gloves, and it can't be done that w'y. murder ain't genteel, it ain't easy, it ain't safe, and it tykes a man to do it. 'ere's the man." "huish!" began the captain with energy; and then stopped, and remained staring at him with corrugated brows. "well, hout with it!" said huish. "'ave you anythink else to put up? is there any other chanst to try?" the captain held his peace. "there you are then!" said huish, with a shrug. davis fell again to his pacing. "o, you may do sentry-go till you're blue in the mug, you won't find anythink else," said huish. there was a little silence; the captain, like a man launched on a swing, flying dizzily among extremes of conjecture and refusal. "but see," he said, suddenly pausing. "can you? can the thing be done? it--it can't be easy." "if i get within twenty foot of 'im it'll be done; so you look out," said huish, and his tone of certainty was absolute. "how can you know that?" broke from the captain in a choked cry. "you beast, i believe you've done it before!" "o, that's private affyres," returned huish; "i ain't a talking man." a shock of repulsion struck and shook the captain; a scream rose almost to his lips; had he uttered it, he might have cast himself at the same moment on the body of huish, might have picked him up, and flung him down, and wiped the cabin with him, in a frenzy of cruelty that seemed half moral. but the moment passed; and the abortive crisis left the man weaker. the stakes were so high--the pearls on the one hand--starvation and shame on the other. ten years of pearls! the imagination of davis translated them into a new, glorified existence for himself and his family. the seat of this new life must be in london; there were deadly reasons against portland, maine; and the pictures that came to him were of english manners. he saw his boys marching in the procession of a school, with gowns on, an usher marshalling them and reading as he walked in a great book. he was installed in a villa, semi-detached; the name, "rosemore," on the gateposts. in a chair on the gravel walk he seemed to sit smoking a cigar, a blue ribbon in his buttonhole, victor over himself and circumstances and the malignity of bankers. he saw the parlour, with red curtains, and shells on the mantelpiece--and, with the fine inconsistency of visions, mixed a grog at the mahogany table ere he turned in. with that the _farallone_ gave one of the aimless and nameless movements which (even in an anchored ship, and even in the most profound calm) remind one of the mobility of fluids; and he was back again under the cover of the house, the fierce daylight besieging it all round and glaring in the chinks, and the clerk in a rather airy attitude, awaiting his decision. he began to walk again. he aspired after the realisation of these dreams, like a horse nickering for water; the lust of them burned in his inside. and the only obstacle was attwater, who had insulted him from the first. he gave herrick a full share of the pearls, he insisted on it; huish opposed him, and he trod the opposition down; and praised himself exceedingly. he was not going to use vitriol himself; was he huish's keeper? it was a pity he had asked, but after all! ... he saw the boys again in the school procession, with the gowns he had thought to be so "tony" long since.... and at the same time the incomparable shame of the last evening blazed up in his mind. "have it your own way!" he said hoarsely. "o, i knew you would walk up," said huish. "now for the letter. there's paper, pens, and ink. sit down and i'll dictyte." the captain took a seat and the pen, looked a while helplessly at the paper, then at huish. the swing had gone the other way; there was a blur upon his eyes. "it's a dreadful business," he said, with a strong twitch of his shoulders. "it's rather a start, no doubt," said huish. "tyke a dip of ink. that's it. _william john hattwater, esq. sir:_" he dictated. "how do you know his name is william john?" asked davis. "saw it on a packing-case," said huish. "got that?" "no," said davis. "but there's another thing. what are we to write?" "o my golly!" cried the exasperated huish. "wot kind of man do _you_ call yourself? _i'm_ goin' to tell you wot to write; that's _my_ pitch; if you'll just be so bloomin' condescendin' as to write it down! _william john attwater, esq., sir:_" he reiterated. and, the captain at last beginning half mechanically to move his pen, the dictation proceeded: "_it is with feelings of shyme and 'artfelt contrition that i approach you after the yumiliatin' events of last night. our mr. 'errick has left the ship, and will have doubtless communicated to you the nature of our 'opes. needless to s'y, these are no longer possible: fate 'as declyred against us, and we bow the 'ead. well awyre as i am of the just suspicions with w'ich i am regarded, i do not venture to solicit the fyvour of an interview for myself, but in order to put an end to a situytion w'ich must be equally pyneful to all, i 'ave deputed my friend and partner, mr. j. l. huish, to l'y before you my proposals, and w'ich by their moderytion, will, i trust, be found to merit your attention. mr. j. l. huish is entirely unarmed, i swear to gawd! and will 'old 'is 'ands over 'is 'ead from the moment he begins to approach you. i am your fytheful servant, john dyvis._" huish read the letter with the innocent joy of amateurs, chuckled gustfully to himself, and reopened it more than once after it was folded, to repeat the pleasure, davis meanwhile sitting inert and heavily frowning. of a sudden he rose; he seemed all abroad. "no!" he cried. "no! it can't be! it's too much; it's damnation. god would never forgive it." "well, and 'oo wants him to?" returned huish, shrill with fury. "you were damned years ago for the _sea rynger_, and said so yourself. well then, be damned for something else, and 'old your tongue." the captain looked at him mistily. "no," he pleaded, "no, old man! don't do it." "'ere now," said huish, "i'll give you my ultimytum. go or st'y w'ere you are; i don't mind; i'm goin' to see that man and chuck this vitriol in his eyes. if you st'y i'll go alone; the niggers will likely knock me on the 'ead, and a fat lot you'll be the better! but there's one thing sure: i'll 'ear no more of your moonin' mullygrubbin' rot, and tyke it stryte." the captain took it with a blink and a gulp. memory, with phantom voices, repeated in his ears something similar, something he had once said to herrick--years ago it seemed. "now, gimme over your pistol," said huish. "i 'ave to see all clear. six shots, and mind you don't wyste them." the captain, like a man in a nightmare, laid down his revolver on the table, and huish wiped the cartridges and oiled the works. it was close on noon, there was no breath of wind, and the heat was scarce bearable, when the two men came on deck, had the boat manned, and passed down, one after another, into the stern-sheets. a white shirt at the end of an oar served as flag of truce; and the men, by direction, and to give it the better chance to be observed, pulled with extreme slowness. the isle shook before them like a place incandescent; on the face of the lagoon blinding copper suns, no bigger than sixpences, danced and stabbed them in the eyeballs: there went up from sand and sea, and even from the boat, a glare of scathing brightness; and as they could only peer abroad from between closed lashes, the excess of light seemed to be changed into a sinister darkness, comparable to that of a thundercloud before it bursts. the captain had come upon this errand for any one of a dozen reasons, the last of which was desire for its success. superstition rules all men; semi-ignorant and gross natures, like that of davis, it rules utterly. for murder he had been prepared; but this horror of the medicine in the bottle went beyond him, and he seemed to himself to be parting the last strands that united him to god. the boat carried him on to reprobation, to damnation; and he suffered himself to be carried passively consenting, silently bidding farewell to his better self and his hopes. huish sat by his side in towering spirits that were not wholly genuine. perhaps as brave a man as ever lived, brave as a weasel, he must still reassure himself with the tones of his own voice; he must play his part to exaggeration, he must out-herod herod, insult all that was respectable, and brave all that was formidable, in a kind of desperate wager with himself. "golly, but it's 'ot!" said he. "cruel 'ot, i call it. nice d'y to get your gruel in! i s'y, you know, it must feel awf'ly peculiar to get bowled over on a d'y like this. i'd rather 'ave it on a cowld and frosty morning, wouldn't you? (singing) ''_ere we go round the mulberry bush on a cowld and frosty mornin'._' (spoken) give you my word, i 'aven't thought o' that in ten year; used to sing it at a hinfant school in 'ackney, 'ackney wick it was. (singing) '_this is the way the tyler does, the tyler does._' (spoken) bloomin' 'umbug.--'ow are you off now, for the notion of a future styte? do you cotton to the tea-fight views, or the old red-'ot bogey business?" "o, dry up!" said the captain. "no, but i want to know," said huish. "it's within the sp'ere of practical politics for you and me, my boy; we may both be bowled over, one up, t'other down, within the next ten minutes. it would be rather a lark, now, if you only skipped across, came up smilin' t'other side, and a hangel met you with a b. and s. under his wing. 'ullo, you'd s'y: come, i tyke this kind." the captain groaned. while huish was thus airing and exercising his bravado, the man at his side was actually engaged in prayer. prayer, what for? god knows. but out of his inconsistent, illogical, and agitated spirit, a stream of supplication was poured forth, inarticulate as himself, earnest as death and judgment. "thou gawd seest me!" continued huish. "i remember i had that written in my bible. i remember the bible too, all about abinadab and parties.--well, gawd!" apostrophising the meridian, "you're goin' to see a rum start presently, i promise you that!" the captain bounded. "i'll have no blasphemy!" he cried, "no blasphemy in my boat." "all right, cap'," said huish. "anythink to oblige. any other topic you would like to sudgest, the ryne-gyge, the lightnin'-rod, shykespeare, or the musical glasses? 'ere's conversation on tap. put a penny in the slot, and ... 'ullo! 'ere they are!" he cried. "now or never! is 'e goin' to shoot?" and the little man straightened himself into an alert and dashing attitude, and looked steadily at the enemy. but the captain rose half up in the boat with eyes protruding. "what's that?" he cried. "wot's wot?" said huish. "those--blamed things," said the captain. and indeed it was something strange. herrick and attwater, both armed with winchesters, had appeared out of the grove behind the figure-head; and to either hand of them, the sun glistened upon two metallic objects, locomotory like men, and occupying in the economy of these creatures the places of heads--only the heads were faceless. to davis, between wind and water, his mythology appeared to have come alive and tophet to be vomiting demons. but huish was not mystified a moment. "divers' 'elmets, you ninny. can't you see?" he said. "so they are," said davis, with a gasp. "and why? o, i see, it's for armour." "wot did i tell you?" said huish. "dyvid and goliar all the w'y and back." the two natives (for they it was that were equipped in this unusual panoply of war) spread out to right and left, and at last lay down in the shade, on the extreme flank of the position. even now that the mystery was explained, davis was hatefully preoccupied, stared at the flame on their crests, and forgot, and then remembered with a smile, the explanation. attwater withdrew again into the grove, and herrick, with his gun under his arm, came down the pier alone. about halfway down he halted and hailed the boat. "what do you want?" he cried. "i'll tell that to mr. attwater," replied huish, stepping briskly on the ladder. "i don't tell it to you, because you played the trucklin' sneak. here's a letter for him: tyke it, and give it, and be 'anged to you!" "davis, is this all right?" said herrick. davis raised his chin, glanced swiftly at herrick and away again, and held his peace. the glance was charged with some deep emotion, but whether of hatred or of fear, it was beyond herrick to divine. "well," he said, "i'll give the letter." he drew a score with his foot on the boards of the gangway. "till i bring the answer, don't move a step past this." and he returned to where attwater leaned against a tree, and gave him the letter. attwater glanced it through. "what does that mean?" he asked, passing it to herrick. "treachery?" "o, i suppose so!" said herrick. "well, tell him to come on," said attwater. "one isn't a fatalist for nothing. tell him to come on and to look out." herrick returned to the figure-head. half-way down the pier the clerk was waiting, with davis by his side. "you are to come along, huish," said herrick. "he bids you to look out--no tricks." huish walked briskly up the pier, and paused face to face with the young man. "w'ere is 'e?" said he, and to herrick's surprise, the low-bred, insignificant face before him flushed suddenly crimson and went white again. "right forward," said herrick, pointing. "now, your hands above your head." the clerk turned away from him and towards the figure-head, as though he were about to address to it his devotions; he was seen to heave a deep breath; and raised his arms. in common with many men of his unhappy physical endowments, huish's hands were disproportionately long and broad, and the palms in particular enormous; a four-ounce jar was nothing in that capacious fist. the next moment he was plodding steadily forward on his mission. herrick at first followed. then a noise in his rear startled him, and he turned about to find davis already advanced as far as the figure-head. he came, crouching and open-mouthed, as the mesmerised may follow the mesmeriser; all human considerations, and even the care of his own life, swallowed up in one abominable and burning curiosity. "halt!" cried herrick, covering him with his rifle. "davis, what are you doing, man? you are not to come." davis instinctively paused, and regarded him with a dreadful vacancy of eye. "put your back to that figure-head--do you hear me?--and stand fast!" said herrick. the captain fetched a breath, stepped back against the figure-head, and instantly redirected his glances after huish. there was a hollow place of the sand in that part, and, as it were, a glade among the coco-palms in which the direct noonday sun blazed intolerably. at the far end, in the shadow, the tall figure of attwater was to be seen leaning on a tree; towards him, with his hands over his head, and his steps smothered in the sand, the clerk painfully waded. the surrounding glare threw out and exaggerated the man's smallness; it seemed no less perilous an enterprise, this that he was gone upon, than for a whelp to besiege a citadel. "there, mr. whish. that will do," cried attwater. "from that distance, and keeping your hands up, like a good boy, you can very well put me in possession of the skipper's views." the interval betwixt them was perhaps forty feet; and huish measured it with his eye, and breathed a curse. he was already distressed with labouring in the loose sand, and his arms ached bitterly from their unnatural position. in the palm of his right hand the jar was ready; and his heart thrilled, and his voice choked, as he began to speak. "mr. hattwater," said he, "i don't know if ever you 'ad a mother...." "i can set your mind at rest: i had," returned attwater; "and henceforth, if i may venture to suggest it, her name need not recur in our communications. i should perhaps tell you that i am not amenable to the pathetic." "i am sorry, sir, if i 'ave seemed to tresparse on your private feelin's," said the clerk, cringing and stealing a step. "at least, sir, you will never pe'suade me that you are not a perfec' gentleman; i know a gentleman when i see him; and as such, i 'ave no 'esitation in throwin' myself on your merciful consideration. it _is_ 'ard lines, no doubt; it's 'ard lines to have to hown yourself beat; it's 'ard lines to 'ave to come and beg to you for charity." "when, if things had only gone right, the whole place was as good as your own?" suggested attwater. "i can understand the feeling." "you are judging me, mr. attwater," said the clerk, "and god knows how unjustly! _thou gawd seest me_, was the tex' i 'ad in my bible, w'ich my father wrote it in with 'is own 'and upon the fly-leaft." "i am sorry i have to beg your pardon once more," said attwater; "but, do you know, you seem to me to be a trifle nearer, which is entirely outside of our bargain. and i would venture to suggest that you take one--two--three--steps back; and stay there." the devil, at this staggering disappointment, looked out of huish's face, and attwater was swift to suspect. he frowned, he stared on the little man, and considered. why should he be creeping nearer? the next moment his gun was at his shoulder. "kindly oblige me by opening your hands. open your hands wide--let me see the fingers spread, you dog--throw down that thing you're holding!" he roared, his rage and certitude increasing together. and then, at almost the same moment, the indomitable huish decided to throw, and attwater pulled a trigger. there was scarce the difference of a second between the two resolves, but it was in favour of the man with the rifle; and the jar had not yet left the clerk's hand, before the ball shattered both. for the twinkling of an eye the wretch was in hell's agonies, bathed in liquid flames, a screaming bedlamite; and then a second and more merciful bullet stretched him dead. the whole thing was come and gone in a breath. before herrick could turn about, before davis could complete his cry of horror, the clerk lay in the sand, sprawling and convulsed. attwater ran to the body; he stooped and viewed it; he put his finger in the vitriol, and his face whitened and hardened with anger. davis had not yet moved; he stood astonished, with his back to the figure-head, his hands clutching it behind him, his body inclined forward from the waist. attwater turned deliberately and covered him with his rifle. "davis," he cried, in a voice like a trumpet, "i give you sixty seconds to make your peace with god!" davis looked, and his mind awoke. he did not dream of self-defence, he did not reach for his pistol. he drew himself up instead to face death, with a quivering nostril. "i guess i'll not trouble the old man," he said; "considering the job i was on, i guess it's better business to just shut my face." attwater fired; there came a spasmodic movement of the victim, and immediately above the middle of his forehead a black hole marred the whiteness of the figure-head. a dreadful pause; then again the report, and the solid sound and jar of the bullet in the wood; and this time the captain had felt the wind of it along his cheek. a third shot, and he was bleeding from one ear; and along the levelled rifle attwater smiled like a red indian. the cruel game of which he was the puppet was now clear to davis; three times he had drunk of death, and he must look to drink of it seven times more before he was despatched. he held up his hand. "steady!" he cried; "i'll take your sixty seconds." "good!" said attwater. the captain shut his eyes tight like a child: he held his hands up at last with a tragic and ridiculous gesture. "my god, for christ's sake, look after my two kids," he said; and then, after a pause and a falter, "for christ's sake. amen." and he opened his eyes and looked down the rifle with a quivering mouth. "but don't keep fooling me long!" he pleaded. "that's all your prayer?" asked attwater, with a singular ring in his voice. "guess so," said davis. "so?" said attwater, resting the butt of his rifle on the ground, "is that done? is your peace made with heaven? because it is with me. go, and sin no more, sinful father. and remember that whatever you do to others, god shall visit it again a thousandfold upon your innocents." the wretched davis came staggering forward from his place against the figure-head, fell upon his knees, and waved his hands, and fainted. when he came to himself again, his head was on attwater's arm, and close by stood one of the men in diver's helmets, holding a bucket of water, from which his late executioner now laved his face. the memory of that dreadful passage returned upon him in a clap; again he saw huish lying dead, again he seemed to himself to totter on the brink of an unplumbed eternity. with trembling hands he seized hold of the man whom he had come to slay; and his voice broke from him like that of a child among the nightmares of fever: "o! isn't there no mercy? o! what must i do to be saved?" "ah!" thought attwater, "here is the true penitent." chapter xii a tail-piece on a very bright, hot, lusty, strongly-blowing noon, a fortnight after the events recorded, and a month since the curtain rose upon this episode, a man might have been spied praying on the sand by the lagoon beach. a point of palm-trees isolated him from the settlement; and from the place where he knelt, the only work of man's hand that interrupted the expanse was the schooner _farallone_, her berth quite changed, and rocking at anchor some two miles to windward in the midst of the lagoon. the noise of the trade ran very boisterous in all parts of the island; the nearer palm-trees crashed and whistled in the gusts, those farther off contributed a humming bass like the roar of cities; and yet, to any man less absorbed, there must have risen at times over this turmoil of the winds the sharper note of the human voice from the settlement. there all was activity. attwater, stripped to his trousers, and lending a strong hand of help, was directing and encouraging five kanakas; from his lively voice, and their more lively efforts, it was to be gathered that some sudden and joyful emergency had set them in this bustle; and the union jack floated once more on its staff. but the suppliant on the beach, unconscious of their voices, prayed on with instancy and fervour, and the sound of his voice rose and fell again, and his countenance brightened and was deformed with changing moods of piety and terror. before his closed eyes the skiff had been for some time tacking towards the distant and deserted _farallone_; and presently the figure of herrick might have been observed to board her, to pass for a while into the house, thence forward to the forecastle, and at last to plunge into the main hatch. in all these quarters his visit was followed by a coil of smoke; and he had scarce entered his boat again and shoved off, before flames broke forth upon the schooner. they burned gaily; kerosene had not been spared, and the bellows of the trade incited the conflagration. about half-way on the return voyage, when herrick looked back, he beheld the _farallone_ wrapped to the topmasts in leaping arms of fire, and the voluminous smoke pursuing him along the face of the lagoon. in one hour's time, he computed, the waters would have closed over the stolen ship. it so chanced that, as his boat flew before the wind with much vivacity, and his eyes were continually busy in the wake, measuring the progress of the flames, he found himself embayed to the northward of the point of palms, and here became aware at the same time of the figure of davis immersed in his devotion. an exclamation, part of annoyance, part of amusement, broke from him: and he touched the helm and ran the prow upon the beach not twenty feet from the unconscious devotee. taking the painter in his hand, he landed, and drew near, and stood over him. and still the voluble and incoherent stream of prayer continued unabated. it was not possible for him to overhear the suppliant's petitions, which he listened to some while in a very mingled mood of humour and pity: and it was only when his own name began to occur and to be conjoined with epithets, that he at last laid his hand on the captain's shoulder. "sorry to interrupt the exercise," said he; "but i want you to look at the _farallone_." the captain scrambled to his feet, and stood gasping and staring. "mr. herrick, don't startle a man like that!" he said. "i don't seem someways rightly myself since...." he broke off. "what did you say anyway? o, the _farallone_," and he looked languidly out. "yes," said herrick. "there she burns! and you may guess from that what the news is." "the _trinity hall_, i guess," said the captain. "the same," said herrick; "sighted half an hour ago, and coming up hand over fist." "well, it don't amount to a hill of beans," said the captain, with a sigh. "o, come, that's rank ingratitude!" cries herrick. "well," replied the captain meditatively, "you mayn't just see the way that i view it in, but i'd 'most rather stay here upon this island. i found peace here, peace in believing. yes, i guess this island is about good enough for john davis." "i never heard such nonsense!" cried herrick. "what! with all turning out in your favour the way it does, the _farallone_ wiped out, the crew disposed of, a sure thing for your wife and family, and you, yourself, attwater's spoiled darling and pet penitent!" "now, mr. herrick, don't say that," said the captain gently; "when you know he don't make no difference between us. but, o! why not be one of us? why not come to jesus right away, and let's meet in yon beautiful land? that's just the one thing wanted; just say, 'lord, i believe, help thou mine unbelief!' and he'll fold you in his arms. you see, i know! i been a sinner myself!" weir of hermiston a fragment _to my wife_ _i saw rain falling and the rainbow drawn on lammermuir. hearkening i heard again in my precipitous city beaten bells winnow the keen sea wind. and here afar, intent on my own race and place, i wrote. take thou the writing: thine it is. for who burnished the sword, blew on the drowsy coal, held still the target higher, chary of praise and prodigal of counsel--who but thou? so now, in the end, if this the least be good, if any deed be done, if any fire burn in the imperfect page, the praise be thine._ r. l. s. weir of hermiston introductory in the wild end of a moorland parish, far out of the sight of any house, there stands a cairn among the heather, and a little by east of it, in the going down of the braeside, a monument with some verses half defaced. it was here that claverhouse shot with his own hand the praying weaver of balweary, and the chisel of old mortality has clinked on that lonely gravestone. public and domestic history have thus marked with a bloody finger this hollow among the hills; and since the cameronian gave his life there, two hundred years ago, in a glorious folly, and without comprehension or regret, the silence of the moss has been broken once again by the report of firearms and the cry of the dying. the deil's hags was the old name. but the place is now called francie's cairn. for a while it was told that francie walked. aggie hogg met him in the gloaming by the cairnside, and he spoke to her, with chattering teeth, so that his words were lost. he pursued rob todd (if any one could have believed robbie) for the space of half a mile with pitiful entreaties. but the age is one of incredulity; these superstitious decorations speedily fell off; and the facts of the story itself, like the bones of a giant buried there and half dug up, survived, naked and imperfect, in the memory of the scattered neighbours. to this day, of winter nights, when the sleet is on the window and the cattle are quiet in the byre, there will be told again, amid the silence of the young and the additions and corrections of the old, the tale of the justice-clerk and of his son, young hermiston, that vanished from men's knowledge; of the two kirsties and the four black brothers of the cauldstaneslap; and of frank innes, "the young fool advocate," that came into these moorland parts to find his destiny. chapter i life and death of mrs. weir the lord justice-clerk was a stranger in that part of the country; but his lady wife was known there from a child, as her race had been before her. the old "riding rutherfords of hermiston," of whom she was the last descendant, had been famous men of yore, ill neighbours, ill subjects, and ill husbands to their wives, though not their properties. tales of them were rife for twenty miles about; and their name was even printed in the page of our scots histories, not always to their credit. one bit the dust at flodden; one was hanged at his peel door by james the fifth; another fell dead in a carouse with tom dalyell; while a fourth (and that was jean's own father) died presiding at a hell-fire club, of which he was the founder. there were many heads shaken in crossmichael at that judgment; the more so as the man had a villainous reputation among high and low, and both with the godly and the worldly. at that very hour of his demise he had ten going pleas before the session, eight of them oppressive. and the same doom extended even to his agents; his grieve, that had been his right hand in many a left-hand business, being cast from his horse one night and drowned in a peat-hag on the kye-skairs; and his very doer (although lawyers have long spoons) surviving him not long, and dying on a sudden in a bloody flux. in all these generations, while a male rutherford was in the saddle with his lads, or brawling in a change-house, there would be always a white-faced wife immured at home in the old peel or the later mansion-house. it seemed this succession of martyrs bided long, but took their vengeance in the end, and that was in the person of the last descendant, jean. she bore the name of the rutherfords, but she was the daughter of their trembling wives. at the first she was not wholly without charm. neighbours recalled in her, as a child, a strain of elfin wilfulness, gentle little mutinies, sad little gaieties, even a morning gleam of beauty that was not to be fulfilled. she withered in the growing, and (whether it was the sins of her sires or the sorrows of her mothers) came to her maturity depressed, and, as it were, defaced; no blood of life in her, no grasp or gaiety; pious, anxious, tender, tearful, and incompetent. it was a wonder to many that she had married--seeming so wholly of the stuff that makes old maids. but chance cast her in the path of adam weir, then the new lord advocate, a recognised, risen man, the conqueror of many obstacles, and thus late in the day beginning to think upon a wife. he was one who looked rather to obedience than beauty, yet it would seem he was struck with her at the first look. "wha's she?" he said, turning to his host; and, when he had been told, "ay," says he, "she looks menseful. she minds me----"; and then, after a pause (which some have been daring enough to set down to sentimental recollections), "is she releegious?" he asked, and was shortly after, at his own request, presented. the acquaintance, which it seems profane to call a courtship, was pursued with mr. weir's accustomed industry, and was long a legend, or rather a source of legends, in the parliament house. he was described coming, rosy with much port, into the drawing-room, walking direct up to the lady, and assailing her with pleasantries to which the embarrassed fair one responded, in what seemed a kind of agony, "eh, mr. weir!" or "o, mr. weir!" or "keep me, mr. weir!" on the very eve of their engagement, it was related that one had drawn near to the tender couple, and had overheard the lady cry out, with the tones of one who talked for the sake of talking, "keep me, mr. weir, and what became of him?" and the profound accents of the suitor reply, "haangit, mem, haangit." the motives upon either side were much debated. mr. weir must have supposed his bride to be somewhat suitable; perhaps he belonged to that class of men who think a weak head the ornament of women--an opinion invariably punished in this life. her descent and her estate were beyond question. her wayfaring ancestors and her litigious father had done well by jean. there was ready money and there were broad acres, ready to fall wholly to the husband, to lend dignity to his descendants, and to himself a title, when he should be called upon the bench. on the side of jean, there was perhaps some fascination of curiosity as to this unknown male animal that approached her with the roughness of a ploughman and the _aplomb_ of an advocate. being so trenchantly opposed to all she knew, loved, or understood, he may well have seemed to her the extreme, if scarcely the ideal, of his sex. and besides, he was an ill man to refuse. a little over forty at the period of his marriage, he looked already older, and to the force of manhood added the senatorial dignity of years; it was, perhaps, with an unreverend awe, but he was awful. the bench, the bar, and the most experienced and reluctant witness, bowed to his authority--and why not jeannie rutherford? the heresy about foolish women is always punished, i have said, and lord hermiston began to pay the penalty at once. his house in george square was wretchedly ill-guided; nothing answerable to the expense of maintenance but the cellar, which was his own private care. when things went wrong at dinner, as they continually did, my lord would look up the table at his wife: "i think these broth would be better to sweem in than to sup." or else to the butler: "here, m'killop, awa' wi' this raadical gigot--tak' it to the french, man, and bring me some puddocks! it seems rather a sore kind of business that i should be all day in court haanging radicals, and get nawthing to my denner." of course this was but a manner of speaking, and he had never hanged a man for being a radical in his life; the law, of which he was the faithful minister, directing otherwise. and of course these growls were in the nature of pleasantry, but it was of a recondite sort; and uttered as they were in his resounding voice, and commented on by that expression which they called in the parliament house "hermiston's hanging face"--they struck mere dismay into the wife. she sat before him speechless and fluttering; at each dish, as at a fresh ordeal, her eye hovered toward my lord's countenance and fell again; if he but ate in silence, unspeakable relief was her portion; if there were complaint, the world was darkened. she would seek out the cook, who was always her _sister in the lord_. "o, my dear, this is the most dreidful thing that my lord can never be contented in his own house!" she would begin; and weep and pray with the cook; and then the cook would pray with mrs. weir; and the next day's meal would never be a penny the better--and the next cook (when she came) would be worse, if anything, but just as pious. it was often wondered that lord hermiston bore it as he did; indeed, he was a stoical old voluptuary, contented with sound wine and plenty of it. but there were moments when he overflowed. perhaps half a dozen times in the history of his married life--"here! tak' it awa', and bring me a piece of bread and kebbuck!" he had exclaimed, with an appalling explosion of his voice and rare gestures. none thought to dispute or to make excuses; the service was arrested; mrs. weir sat at the head of the table whimpering without disguise; and his lordship opposite munched his bread and cheese in ostentatious disregard. once only mrs. weir had ventured to appeal. he was passing her chair on his way into the study. "o, edom!" she wailed, in a voice tragic with tears, and reaching out to him both hands, in one of which she held a sopping pocket-handkerchief. he paused and looked upon her with a face of wrath, into which there stole, as he looked, a twinkle of humour. "noansense!" he said. "you and your noansense! what do i want with a christian faim'ly? i want christian broth! get me a lass that can plain-boil a potato, if she was a whüre off the streets." and with these words, which echoed in her tender ears like blasphemy, he had passed on to his study and shut the door behind him. such was the housewifery in george square. it was better at hermiston, where kirstie elliott, the sister of a neighbouring bonnet-laird, and an eighteenth cousin of the lady's, bore the charge of all, and kept a trim house and a good country table. kirstie was a woman in a thousand, clean, capable, notable; once a moorland helen, and still comely as a blood horse and healthy as the hill wind. high in flesh and voice and colour, she ran the house with her whole intemperate soul, in a bustle, not without buffets. scarce more pious than decency in those days required, she was the cause of many an anxious thought and many a tearful prayer to mrs. weir. housekeeper and mistress renewed the parts of martha and mary; and though with a pricking conscience, mary reposed on martha's strength as on a rock. even lord hermiston held kirstie in a particular regard. there were few with whom he unbent so gladly, few whom he favoured with so many pleasantries. "kirstie and me maun have our joke," he would declare, in high good-humour, as he buttered kirstie's scones, and she waited at table. a man who had no need either of love or of popularity, a keen reader of men and of events, there was perhaps only one truth for which he was quite unprepared: he would have been quite unprepared to learn that kirstie hated him. he thought maid and master were well matched; hard, handy, healthy, broad scots folk, without a hair of nonsense to the pair of them. and the fact was that she made a goddess and an only child of the effete and tearful lady; and even as she waited at table her hands would sometimes itch for my lord's ears. thus, at least, when the family were at hermiston, not only my lord, but mrs. weir too, enjoyed a holiday. free from the dreadful looking-for of the miscarried dinner, she would mind her seam, read her piety books, and take her walk (which was my lord's orders), sometimes by herself, sometimes with archie, the only child of that scarce natural union. the child was her next bond to life. her frosted sentiment bloomed again, she breathed deep of life, she let loose her heart, in that society. the miracle of her motherhood was ever new to her. the sight of the little man at her skirt intoxicated her with the sense of power, and froze her with the consciousness of her responsibility. she looked forward, and, seeing him in fancy grow up and play his diverse part on the world's theatre, caught in her breath and lifted up her courage with a lively effort. it was only with the child that she forgot herself and was at moments natural; yet it was only with the child that she had conceived and managed to pursue a scheme of conduct. archie was to be a great man and a good; a minister if possible, a saint for certain. she tried to engage his mind upon her favourite books, rutherford's "letters," scougal's "grace abounding," and the like. it was a common practice of hers (and strange to remember now) that she would carry the child to the deil's hags, sit with him on the praying weaver's stone, and talk of the covenanters till their tears ran down. her view of history was wholly artless, a design in snow and ink; upon the one side, tender innocents with psalms upon their lips; upon the other, the persecutors, booted, bloody-minded, flushed with wine: a suffering christ, a raging beelzebub. _persecutor_ was a word that knocked upon the woman's heart; it was her highest thought of wickedness, and the mark of it was on her house. her great-great-grandfather had drawn the sword against the lord's anointed on the field of rullion green, and breathed his last (tradition said) in the arms of the detestable dalyell. nor could she blind herself to this, that had they lived in those old days, hermiston himself would have been numbered alongside of bloody mackenzie and the politic lauderdale and rothes, in the band of god's immediate enemies. the sense of this moved her to the more fervour; she had a voice for that name of _persecutor_ that thrilled in the child's marrow; and when one day the mob hooted and hissed them all in my lord's travelling carriage, and cried, "down with the persecutor! down with hanging hermiston!" and mamma covered her eyes and wept, and papa let down the glass and looked out upon the rabble with his droll formidable face, bitter and smiling, as they said he sometimes looked when he gave sentence, archie was for the moment too much amazed to be alarmed, but he had scarce got his mother by herself before his shrill voice was raised demanding an explanation: why had they called papa a persecutor? "keep me, my precious!" she exclaimed. "keep me, my dear! this is poleetical. ye must never ask me anything poleetical, erchie. your faither is a great man, my dear, and it's no for me or you to be judging him. it would be telling us all, if we behaved ourselves in our several stations the way your faither does in his high office; and let me hear no more of any such disrespectful and undutiful questions! no that you meant to be undutiful, my lamb; your mother kens that--she kens it well, dearie!" and so slid off to safer topics, and left on the mind of the child an obscure but ineradicable sense of something wrong. mrs. weir's philosophy of life was summed in one expression--tenderness. in her view of the universe, which was all lighted up with a glow out of the doors of hell, good people must walk there in a kind of ecstasy of tenderness. the beasts and plants had no souls; they were here but for a day, and let their day pass gently! and as for the immortal men, on what black, downward path were many of them wending, and to what a horror of an immortality! "are not two sparrows," "whosoever shall smite thee," "god sendeth his rain," "judge not, that ye be not judged"--these texts made her body of divinity; she put them on in the morning with her clothes and lay down to sleep with them at night; they haunted her like a favourite air, they clung about her like a favourite perfume. their minister was a marrowy expounder of the law, and my lord sat under him with relish; but mrs. weir respected him from far off; heard him (like the cannon of a beleaguered city) usefully booming outside on the dogmatic ramparts; and meanwhile, within and out of shot, dwelt in her private garden which she watered with grateful tears. it seems strange to say of this colourless and ineffectual woman, but she was a true enthusiast, and might have made the sunshine and the glory of a cloister. perhaps none but archie knew she could be eloquent; perhaps none but he had seen her--her colour raised, her hands clasped or quivering--glow with gentle ardour. there is a corner of the policy of hermiston, where you come suddenly in view of the summit of black fell, sometimes like the mere grass top of a hill, sometimes (and this is her own expression) like a precious jewel in the heavens. on such days, upon the sudden view of it, her hand would tighten on the child's fingers, her voice rise like a song. "_i to the hills!_" she would repeat. "and o, erchie, arena these like the hills of naphtali?" and her tears would flow. upon an impressionable child the effect of this continual and pretty accompaniment to life was deep. the woman's quietism and piety passed on to his different nature undiminished; but whereas in her it was a native sentiment, in him it was only an implanted dogma. nature and the child's pugnacity at times revolted. a cad from the potterrow once struck him in the mouth; he struck back, the pair fought it out in the back stable lane towards the meadows, and archie returned with a considerable decline in the number of his front teeth, and unregenerately boasting of the losses of the foe. it was a sore day for mrs. weir; she wept and prayed over the infant backslider until my lord was due from court, and she must resume that air of tremulous composure with which she always greeted him. the judge was that day in an observant mood, and remarked upon the absent teeth. "i am afraid erchie will have been fechting with some of thae blagyard lads," said mrs. weir. my lord's voice rang out as it did seldom in the privacy of his own house. "i'll have nonn of that, sir!" he cried. "do you hear me?--nonn of that! no son of mine shall be speldering in the glaur with any dirty raibble." the anxious mother was grateful for so much support; she had even feared the contrary. and that night when she put the child to bed--"now, my dear, ye see!" she said, "i told you what your faither would think of it, if he heard ye had fallen into this dreidful sin; and let you and me pray to god that ye may be keepit from the like temptation or stren'thened to resist it!" the womanly falsity of this was thrown away. ice and iron cannot be welded; and the points of view of the justice-clerk and mrs. weir were not less unassimilable. the character and position of his father had long been a stumbling-block to archie, and with every year of his age the difficulty grew more instant. the man was mostly silent; when he spoke at all, it was to speak of the things of the world, always in a worldly spirit, often in language that the child had been schooled to think coarse, and sometimes with words that he knew to be sins in themselves. tenderness was the first duty, and my lord was invariably harsh. god was love; the name of my lord (to all who knew him) was fear. in the world, as schematised for archie by his mother, the place was marked for such a creature. there were some whom it was good to pity and well (though very likely useless) to pray for; they were named reprobates, goats, god's enemies, brands for the burning; and archie tallied every mark of identification, and drew the inevitable private inference that the lord justice-clerk was the chief of sinners. the mother's honesty was scarce complete. there was one influence she feared for the child and still secretly combated; that was my lord's; and half unconsciously, half in a wilful blindness, she continued to undermine her husband with his son. as long as archie remained silent, she did so ruthlessly, with a single eye to heaven and the child's salvation; but the day came when archie spoke. it was , and archie was seven, and beyond his years for curiosity and logic, when he brought the case up openly. if judging were sinful and forbidden, how came papa to be a judge? to have that sin for a trade? to bear the name of it for a distinction? "i can't see it," said the little rabbi, and wagged his head. mrs. weir abounded in commonplace replies. "no, i canna see it," reiterated archie. "and i'll tell you what, mamma, i don't think you and me's justifeed in staying with him." the woman awoke to remorse; she saw herself disloyal to her man, her sovereign and bread-winner, in whom (with what she had of worldliness) she took a certain subdued pride. she expatiated in reply on my lord's honour and greatness; his useful services in this world of sorrow and wrong, and the place in which he stood, far above where babes and innocents could hope to see or criticise. but she had builded too well--archie had his answers pat: were not babes and innocents the type of the kingdom of heaven? were not honour and greatness the badges of the world? and at any rate, how about the mob that had once seethed about the carriage? "it's all very fine," he concluded, "but in my opinion, papa has no right to be it. and it seems that's not the worst yet of it. it seems he's called 'the hanging judge'--it seems he's crooool. i'll tell you what it is, mamma, there's a tex' borne in upon me: it were better for that man if a milestone were bound upon his back and him flung into the deepestmost pairts of the sea." "o my lamb, ye must never say the like of that!" she cried. "ye're to honour faither and mother, dear, that your days may be long in the land. it's atheists that cry out against him--french atheists, erchie! ye would never surely even yourself down to be saying the same thing as french atheists? it would break my heart to think that of you. and o, erchie, here arena _you_ setting up to _judge_? and have ye no forgot god's plain command--the first with promise, dear? mind you upon the beam and the mote!" having thus carried the war into the enemy's camp, the terrified lady breathed again. and no doubt it is easy thus to circumvent a child with catchwords, but it may be questioned how far it is effectual. an instinct in his breast detects the quibble, and a voice condemns it. he will instantly submit, privately hold the same opinion. for even in this simple and antique relation of the mother and the child, hypocrisies are multiplied. when the court rose that year and the family returned to hermiston, it was a common remark in all the country that the lady was sore failed. she seemed to lose and seize again her touch with life, now sitting inert in a sort of durable bewilderment, anon waking to feverish and weak activity. she dawdled about the lasses at their work, looking stupidly on; she fell to rummaging in old cabinets and presses, and desisted when half through; she would begin remarks with an air of animation and drop them without a struggle. her common appearance was of one who has forgotten something and is trying to remember; and when she overhauled, one after another, the worthless and touching mementoes of her youth, she might have been seeking the clue to that lost thought. during this period she gave many gifts to the neighbours and house lasses, giving them with a manner of regret that embarrassed the recipients. the last night of all she was busy on some female work, and toiled upon it with so manifest and painful a devotion that my lord (who was not often curious) inquired as to its nature. she blushed to the eyes. "o, edom, it's for you!" she said. "it's slippers. i--i hae never made ye any." "ye daft auld wife!" returned his lordship. "a bonny figure i would be, palmering about in bauchles!" the next day, at the hour of her walk, kirstie interfered. kirstie took this decay of her mistress very hard; bore her a grudge, quarrelled with and railed upon her, the anxiety of a genuine love wearing the disguise of temper. this day of all days she insisted disrespectfully, with rustic fury, that mrs. weir should stay at home. but, "no, no," she said, "it's my lord's orders," and set forth as usual. archie was visible in the acre bog, engaged upon some childish enterprise, the instrument of which was mire; and she stood and looked at him a while like one about to call; then thought otherwise, sighed, and shook her head, and proceeded on her rounds alone. the house lasses were at the burn-side washing, and saw her pass with her loose, weary, dowdy gait. "she's a terrible feckless wife the mistress!" said the one. "tut," said the other, "the wumman's seeck." "weel, i canna see nae differ in her," returned the first. "a füshionless quean, a feckless carline." the poor creature thus discussed rambled a while in the grounds without a purpose. tides in her mind ebbed and flowed, and carried her to and fro like seaweed. she tried a path, paused, returned, and tried another; questing, forgetting her quest; the spirit of choice extinct in her bosom, or devoid of sequency. on a sudden, it appeared as though she had remembered, or had formed a resolution, wheeled about, returned with hurried steps, and appeared in the dining-room, where kirstie was at the cleaning, like one charged with an important errand. "kirstie!" she began, and paused; and then with conviction, "mr. weir isna speeritually minded, but he has been a good man to me." it was perhaps the first time since her husband's elevation that she had forgotten the handle to his name, of which the tender, inconsistent woman was not a little proud. and when kirstie looked up at the speaker's face, she was aware of a change. "godsake, what's the maitter wi' ye, mem?" cried the housekeeper, starting from the rug. "i do not ken," answered her mistress, shaking her head. "but he is not speeritually minded, my dear." "here, sit down with ye! godsake, what ails the wife?" cried kirstie, and helped and forced her into my lord's own chair by the cheek of the hearth. "keep me, what's this?" she gasped. "kirstie, what's this? i'm frich'ened." they were her last words. it was the lowering nightfall when my lord returned. he had the sunset in his back, all clouds and glory; and before him, by the wayside, spied kirstie elliott waiting. she was dissolved in tears, and addressed him in the high, false note of barbarous mourning, such as still lingers modified among scots heather. "the lord peety ye, hermiston! the lord prepare ye!" she keened out. "weary upon me, that i should have to tell it!" he reined in his horse and looked upon her with the hanging face. "has the french landit?" cried he. "man, man," she said, "is that a' ye can think of? the lord prepare ye: the lord comfort and support ye!" "is onybody deid?" says his lordship. "it's no erchie?" "bethankit, no!" exclaimed the woman, startled into a more natural tone. "na, na, it's no sae bad as that. it's the mistress, my lord; she just fair flittit before my e'en. she just gi'ed a sab and was by wi' it. eh, my bonny miss jeannie, that i mind sae weel!" and forth again upon that pouring tide of lamentation in which women of her class excel and over-abound. lord hermiston sat in the saddle beholding her. then he seemed to recover command upon himself. "weel, it's something of the suddenest," said he. "but she was a dwaibly body from the first." and he rode home at a precipitate amble with kirstie at his horse's heels. dressed as she was for her last walk, they had laid the dead lady on her bed. she was never interesting in life; in death she was not impressive; and as her husband stood before her, with his hands crossed behind his powerful back, that which he looked upon was the very image of the insignificant. "her and me were never cut out for one another," he remarked at last. "it was a daft-like marriage." and then, with a most unusual gentleness of tone, "puir bitch," said he, "puir bitch!" then suddenly: "where's erchie?" kirstie had decoyed him to her room and given him "a jeely-piece." "ye have some kind of gumption, too," observed the judge, and considered his housekeeper grimly. "when all's said," he added, "i micht have done waur--i micht have been marriet upon a skirling jezebel like you!" "there's naebody thinking of you, hermiston!" cried the offended woman. "we think of her that's out of her sorrows. and could _she_ have done waur? tell me that, hermiston--tell me that before her clay-cauld corp!" "weel, there's some of them gey an' ill to please," observed his lordship. chapter ii father and son my lord justice-clerk was known to many; the man adam weir perhaps to none. he had nothing to explain or to conceal; he sufficed wholly and silently to himself; and that part of our nature which goes out (too often with false coin) to acquire glory or love, seemed in him to be omitted. he did not try to be loved, he did not care to be; it is probable the very thought of it was a stranger to his mind. he was an admired lawyer, a highly unpopular judge; and he looked down upon those who were his inferiors in either distinction, who were lawyers of less grasp or judges not so much detested. in all the rest of his days and doings, not one trace of vanity appeared; and he went on through life with a mechanical movement, as of the unconscious, that was almost august. he saw little of his son. in the childish maladies with which the boy was troubled, he would make daily inquiries and daily pay him a visit, entering the sick-room with a facetious and appalling countenance, letting off a few perfunctory jests, and going again swiftly, to the patient's relief. once, a court holiday falling opportunely, my lord had his carriage, and drove the child himself to hermiston, the customary place of convalescence. it is conceivable he had been more than usually anxious, for that journey always remained in archie's memory as a thing apart, his father having related to him from beginning to end, and with much detail, three authentic murder cases. archie went the usual round of other edinburgh boys, the high school and the college; and hermiston looked on, or rather looked away, with scarce an affectation of interest in his progress. daily, indeed, upon a signal after dinner, he was brought in, given nuts and a glass of port, regarded sardonically, sarcastically questioned. "well, sir, and what have you donn with your book to-day?" my lord might begin, and set him posers in law latin. to a child just stumbling into corderius, papinian and paul proved quite invincible. but papa had memory of no other. he was not harsh to the little scholar, having a vast fund of patience learned upon the bench, and was at no pains whether to conceal or to express his disappointment. "well, ye have a long jaunt before ye yet!" he might observe, yawning, and fall back on his own thoughts (as like as not) until the time came for separation, and my lord would take the decanter and the glass, and be off to the back chamber looking on the meadows, where he toiled on his cases till the hours were small. there was no "fuller man" on the bench; his memory was marvellous, though wholly legal; if he had to "advise" extempore, none did it better; yet there was none who more earnestly prepared. as he thus watched in the night, or sat at table and forgot the presence of his son, no doubt but he tasted deeply of recondite pleasures. to be wholly devoted to some intellectual exercise is to have succeeded in life; and perhaps only in law and the higher mathematics may this devotion be maintained, suffice to itself without reaction, and find continual rewards without excitement. this atmosphere of his father's sterling industry was the best of archie's education. assuredly it did not attract him; assuredly it rather rebutted and depressed. yet it was still present, unobserved like the ticking of a clock, an arid ideal, a tasteless stimulant in the boy's life. but hermiston was not all of one piece. he was, besides, a mighty toper; he could sit at wine until the day dawned, and pass directly from the table to the bench with a steady hand and a clear head. beyond the third bottle, he showed the plebeian in a larger print; the low, gross accent, the low, foul mirth, grew broader and commoner; he became less formidable, and infinitely more disgusting. now, the boy had inherited from jean rutherford a shivering delicacy, unequally mated with potential violence. in the playing-fields, and amongst his own companions, he repaid a coarse expression with a blow; at his father's table (when the time came for him to join these revels) he turned pale and sickened in silence. of all the guests whom he there encountered, he had toleration for only one: david keith carnegie, lord glenalmond. lord glenalmond was tall and emaciated, with long features and long delicate hands. he was often compared with the statue of forbes of culloden in the parliament house; and his blue eye, at more than sixty, preserved some of the fire of youth. his exquisite disparity with any of his fellow-guests, his appearance as of an artist and an aristocrat stranded in rude company, riveted the boy's attention; and as curiosity and interest are the things in the world that are the most immediately and certainly rewarded, lord glenalmond was attracted by the boy. "and so this is your son, hermiston?" he asked, laying his hand on archie's shoulder. "he's getting a big lad." "hout!" said the gracious father, "just his mother over again--daurna say boo to a goose!" but the stranger retained the boy, talked to him, drew him out, found in him a taste for letters, and a fine, ardent, modest, youthful soul; and encouraged him to be a visitor on sunday evenings in his bare, cold, lonely dining-room, where he sat and read in the isolation of a bachelor grown old in refinement. the beautiful gentleness and grace of the old judge, and the delicacy of his person, thoughts, and language, spoke to archie's heart in its own tongue. he conceived the ambition to be such another; and, when the day came for him to choose a profession, it was in emulation of lord glenalmond, not of lord hermiston, that he chose the bar. hermiston looked on at this friendship with some secret pride, but openly with the intolerance of scorn. he scarce lost an opportunity to put them down with a rough jape; and, to say truth, it was not difficult, for they were neither of them quick. he had a word of contempt for the whole crowd of poets, painters, fiddlers, and their admirers, the bastard race of amateurs, which was continually on his lips. "signor feedle-eerie!" he would say. "o, for goad's sake, no more of the signor!" "you and my father are great friends, are you not?" asked archie once. "there is no man that i more respect, archie," replied lord glenalmond. "he is two things of price: he is a great lawyer, and he is upright as the day." "you and he are so different," said the boy, his eyes dwelling on those of his old friend, like a lover's on his mistress's. "indeed so," replied the judge; "very different. and so i fear are you and he. yet i would like it very ill if my young friend were to misjudge his father. he has all the roman virtues: cato and brutus were such; i think a son's heart might well be proud of such an ancestry of one." "and i would sooner he were a plaided herd," cried archie, with sudden bitterness. "and that is neither very wise, nor i believe entirely true," returned glenalmond. "before you are done you will find some of these expressions rise on you like a remorse. they are merely literary and decorative; they do not aptly express your thought, nor is your thought clearly apprehended, and no doubt your father (if he were here) would say, 'signor feedle-eerie!'" with the infinitely delicate sense of youth, archie avoided the subject from that hour. it was perhaps a pity. had he but talked--talked freely--let himself gush out in words (the way youth loves to do, and should), there might have been no tale to write upon the weirs of hermiston. but the shadow of a threat of ridicule sufficed; in the slight tartness of these words he read a prohibition; and it is likely that glenalmond meant it so. besides the veteran, the boy was without confidant or friend. serious and eager, he came through school and college, and moved among a crowd of the indifferent, in the seclusion of his shyness. he grew up handsome, with an open, speaking countenance, with graceful, youthful ways; he was clever, he took prizes, he shone in the speculative society. it should seem he must become the centre of a crowd of friends; but something that was in part the delicacy of his mother, in part the austerity of his father, held him aloof from all. it is a fact, and a strange one, that among his contemporaries hermiston's son was thought to be a chip of the old block. "you're a friend of archie weir's?" said one to frank innes; and innes replied, with his usual flippancy and more than his usual insight: "i know weir, but i never met archie." no one had met archie, a malady most incident to only sons. he flew his private signal, and none heeded it; it seemed he was abroad in a world from which the very hope of intimacy was banished; and he looked round about him on the concourse of his fellow-students, and forward to the trivial days and acquaintances that were to come, without hope or interest. as time went on, the tough and rough old sinner felt himself drawn to the son of his loins and sole continuator of his new family, with softnesses of sentiment that he could hardly credit and was wholly impotent to express. with a face, voice, and manner trained through forty years to terrify and repel, rhadamanthus may be great, but he will scarce be engaging. it is a fact that he tried to propitiate archie, but a fact that cannot be too lightly taken; the attempt was so unconspicuously made, the failure so stoically supported. sympathy is not due to these steadfast iron natures. if he failed to gain his son's friendship, or even his son's toleration, on he went up the great, bare staircase of his duty, uncheered and undepressed. there might have been more pleasure in his relations with archie, so much he may have recognised at moments; but pleasure was a by-product of the singular chemistry of life, which only fools expected. an idea of archie's attitude, since we are all grown up and have forgotten the days of our youth, it is more difficult to convey. he made no attempt whatsoever to understand the man with whom he dined and breakfasted. parsimony of pain, glut of pleasure, these are the two alternating ends of youth; and archie was of the parsimonious. the wind blew cold out of a certain quarter--he turned his back upon it; stayed as little as was possible in his father's presence; and when there, averted his eyes as much as was decent from his father's face. the lamp shone for many hundred days upon these two at table--my lord ruddy, gloomy, and unreverend; archie with a potential brightness that was always dimmed and veiled in that society; and there were not, perhaps, in christendom two men more radically strangers. the father, with a grand simplicity, either spoke of what interested himself, or maintained an unaffected silence. the son turned in his head for some topic that should be quite safe, that would spare him fresh evidences either of my lord's inherent grossness or of the innocence of his inhumanity; treading gingerly the ways of intercourse, like a lady gathering up her skirts in a by-path. if he made a mistake, and my lord began to abound in matter of offence, archie drew himself up, his brow grew dark, his share of the talk expired; but my lord would faithfully and cheerfully continue to pour out the worst of himself before his silent and offended son. "well, it's a poor hert that never rejoices!" he would say, at the conclusion of such a nightmare interview. "but i must get to my plew-stilts." and he would seclude himself as usual in the back room, and archie go forth into the night and the city quivering with animosity and scorn. chapter iii in the matter of the hanging of duncan jopp it chanced in the year that archie strayed one day into the justiciary court. the macer made room for the son of the presiding judge. in the dock, the centre of men's eyes, there stood a whey-coloured, misbegotten caitiff, duncan jopp, on trial for his life. his story, as it was raked out before him in that public scene, was one of disgrace and vice and cowardice, the very nakedness of crime; and the creature heard, and it seemed at times as though he understood--as if at times he forgot the horror of the place he stood in, and remembered the shame of what had brought him there. he kept his head bowed and his hands clutched upon the rail; his hair dropped in his eyes and at times he flung it back; and now he glanced about the audience in a sudden fellness of terror, and now looked in the face of his judge and gulped. there was pinned about his throat a piece of dingy flannel; and this it was perhaps that turned the scale in archie's mind between disgust and pity. the creature stood in a vanishing point; yet a little while, and he was still a man, and had eyes and apprehension; yet a little longer, and with a last sordid piece of pageantry, he would cease to be. and here, in the meantime, with a trait of human nature that caught at the beholder's breath, he was tending a sore throat. over against him, my lord hermiston occupied the bench in the red robes of criminal jurisdiction, his face framed in the white wig. honest all through, he did not affect the virtue of impartiality; this was no case for refinement; there was a man to be hanged, he would have said, and he was hanging him. nor was it possible to see his lordship, and acquit him of gusto in the task. it was plain he gloried in the exercise of his trained faculties, in the clear sight which pierced at once into the joint of fact, in the rude, unvarnished gibes with which he demolished every figment of defence. he took his ease and jested, unbending in that solemn place with some of the freedom of the tavern; and the rag of man with the flannel round his neck was hunted gallowsward with jeers. duncan had a mistress, scarce less forlorn and greatly older than himself, who came up, whimpering and curtseying, to add the weight of her betrayal. my lord gave her the oath in his most roaring voice, and added an intolerant warning. "mind what ye say now, janet," said he. "i have an e'e upon ye, i'm ill to jest with." presently, after she was tremblingly embarked on her story, "and what made ye do this, ye auld runt?" the court interposed. "do ye mean to tell me ye was the panel's mistress?" "if you please, ma loard," whined the female. "godsake! ye made a bonny couple," observed his lordship; and there was something so formidable and ferocious in his scorn that not even the galleries thought to laugh. the summing up contained some jewels. "these two peetiable creatures seem to have made up thegither, it's not for us to explain why."--"the panel, who (whatever else he may be) appears to be equally ill set-out in mind and boady."--"neither the panel nor yet the old wife appears to have had so much common sense as even to tell a lie when it was necessary." and in the course of sentencing, my lord had this _obiter dictum_: "i have been the means, under god, of haanging a great number, but never just such a disjaskit rascal as yourself." the words were strong in themselves; the light and heat and detonation of their delivery, and the savage pleasure of the speaker in his task, made them tingle in the ears. when all was over, archie came forth again into a changed world. had there been the least redeeming greatness in the crime, any obscurity, any dubiety, perhaps he might have understood. but the culprit stood, with his sore throat, in the sweat of his mortal agony, without defence or excuse: a thing to cover up with blushes: a being so much sunk beneath the zones of sympathy that pity might seem harmless. and the judge had pursued him with a monstrous, relishing gaiety, horrible to be conceived, a trait for nightmares. it is one thing to spear a tiger, another to crush a toad; there are æsthetics even of the slaughter-house; and the loathsomeness of duncan jopp enveloped and infected the image of his judge. archie passed by his friends in the high street with incoherent words and gestures. he saw holyrood in a dream, remembrance of its romance awoke in him and faded; he had a vision of the old radiant stories, of queen mary and prince charlie, of the hooded stag, of the splendour and crime, the velvet and bright iron of the past; and dismissed them with a cry of pain. he lay and moaned in the hunter's bog, and the heavens were dark above him and the grass of the field an offence. "this is my father," he said. "i draw my life from him; the flesh upon my bones is his, the bread i am fed with is the wages of these horrors." he recalled his mother, and ground his forehead in the earth. he thought of flight, and where was he to flee to? of other lives, but was there any life worth living in this den of savage and jeering animals? the interval before the execution was like a violent dream. he met his father; he would not look at him, he could not speak to him. it seemed there was no living creature but must have been swift to recognise that imminent animosity; but the hide of the justice-clerk remained impenetrable. had my lord been talkative, the truce could never have subsisted; but he was by fortune in one of his humours of sour silence; and under the very guns of his broadside, archie nursed the enthusiasm of rebellion. it seemed to him, from the top of his nineteen years' experience, as if he were marked at birth to be the perpetrator of some signal action, to set back fallen mercy, to overthrow the usurping devil that sat, horned and hoofed, on her throne. seductive jacobin figments, which he had often refuted at the speculative, swam up in his mind and startled him as with voices: and he seemed to himself to walk accompanied by an almost tangible presence of new beliefs and duties. on the named morning he was at the place of execution. he saw the fleering rabble, the flinching wretch produced. he looked on for a while at a certain parody of devotion, which seemed to strip the wretch of his last claim to manhood. then followed the brutal instant of extinction, and the paltry dangling of the remains like a broken jumping-jack. he had been prepared for something terrible, not for this tragic meanness. he stood a moment silent, and then--"i denounce this god-defying murder," he shouted; and his father, if he must have disclaimed the sentiment, might have owned the stentorian voice with which it was uttered. frank innes dragged him from the spot. the two handsome lads followed the same course of study and recreation, and felt a certain mutual attraction, founded mainly on good looks. it had never gone deep; frank was by nature a thin, jeering creature, not truly susceptible whether of feeling or inspiring friendship; and the relation between the pair was altogether on the outside, a thing of common knowledge and the pleasantries that spring from a common acquaintance. the more credit to frank that he was appalled by archie's outburst, and at least conceived the design of keeping him in sight, and, if possible, in hand for the day. but archie, who had just defied--was it god or satan?--would not listen to the word of a college companion. "i will not go with you," he said. "i do not desire your company, sir; i would be alone." "here, weir, man, don't be absurd," said innes, keeping a tight hold upon his sleeve. "i will not let you go until i know what you mean to do with yourself; it's no use brandishing that staff." for indeed at that moment archie had made a sudden--perhaps a warlike--movement. "this has been the most insane affair; you know it has. you know very well that i'm playing the good samaritan. all i wish is to keep you quiet." "if quietness is what you wish, mr. innes," said archie, "and you will promise to leave me entirely to myself, i will tell you so much, that i am going to walk in the country and admire the beauties of nature." "honour bright?" asked frank. "i am not in the habit of lying, mr. innes," retorted archie. "i have the honour of wishing you good-day." "you won't forget the spec.?" asked innes. "the spec.?" said archie. "o no, i won't forget the spec." and the one young man carried his tortured spirit forth of the city and all the day long, by one road and another, in an endless pilgrimage of misery; while the other hastened smilingly to spread the news of weir's access of insanity, and to drum up for that night a full attendance at the speculative, where further eccentric developments might certainly be looked for. i doubt if innes had the least belief in his prediction; i think it flowed rather from a wish to make the story as good and the scandal as great as possible; not from any ill-will to archie--from the mere pleasure of beholding interested faces. but for all that his words were prophetic. archie did not forget the spec.; he put in an appearance there at the due time, and, before the evening was over, had dealt a memorable shock to his companions. it chanced he was the president of the night. he sat in the same room where the society still meets--only the portraits were not there: the men who afterwards sat for them were then but beginning their careers. the same lustre of many tapers shed its light over the meeting; the same chair, perhaps, supported him that so many of us have sat in since. at times he seemed to forget the business of the evening, but even in these periods he sat with a great air of energy and determination. at times he meddled bitterly, and launched with defiance those fines which are the precious and rarely used artillery of the president. he little thought, as he did so, how he resembled his father, but his friends remarked upon it, chuckling. so far, in his high place above his fellow-students, he seemed set beyond the possibility of any scandal; but his mind was made up--he was determined to fulfil the sphere of his offence. he signed to innes (whom he had just fined and who had just impeached his ruling) to succeed him in the chair, stepped down from the platform, and took his place by the chimney-piece, the shine of many wax tapers from above illuminating his pale face, the glow of the great red fire relieving from behind his slim figure. he had to propose, as an amendment to the next subject in the case-book, "whether capital punishment be consistent with god's will or man's policy?" a breath of embarrassment, of something like alarm, passed round the room, so daring did these words appear upon the lips of hermiston's only son. but the amendment was not seconded; the previous question was promptly moved and unanimously voted, and the momentary scandal smuggled by. innes triumphed in the fulfilment of his prophecy. he and archie were now become the heroes of the night; but whereas every one crowded about innes, when the meeting broke up, but one of all his companions came to speak to archie. "weir, man! that was an extraordinary raid of yours!" observed this courageous member, taking him confidentially by the arm as they went out. "i don't think it a raid," said archie grimly. "more like a war. i saw that poor brute hanged this morning, and my gorge rises at it yet." "hut-tut," returned his companion, and, dropping his arm like something hot, he sought the less tense society of others. archie found himself alone. the last of the faithful--or was it only the boldest of the curious?--had fled. he watched the black huddle of his fellow-students draw off down and up the street, in whispering or boisterous gangs. and the isolation of the moment weighed upon him like an omen and an emblem of his destiny in life. bred up in unbroken fear himself, among trembling servants, and in a house which (at the least ruffle in the master's voice) shuddered into silence, he saw himself on the brink of the red valley of war, and measured the danger and length of it with awe. he made a détour in the glimmer and shadow of the streets, came into the back stable lane, and watched for a long while the light burn steady in the judge's room. the longer he gazed upon that illuminated window-blind, the more blank became the picture of the man who sat behind it, endlessly turning over sheets of process, pausing to sip a glass of port, or rising and passing heavily about his book-lined walls to verify some reference. he could not combine the brutal judge and the industrious, dispassionate student; the connecting link escaped him; from such a dual nature it was impossible he should predict behaviour; and he asked himself if he had done well to plunge into a business of which the end could not be foreseen? and presently after, with a sickening decline of confidence, if he had done loyally to strike his father? for he had struck him--defied him twice over and before a cloud of witnesses--struck him a public buffet before crowds. who had called him to judge his father in these precarious and high questions? the office was usurped. it might have become a stranger; in a son--there was no blinking it--in a son, it was disloyal. and now, between these two natures so antipathetic, so hateful to each other, there was depending an unpardonable affront: and the providence of god alone might foresee the manner in which it would be resented by lord hermiston. these misgivings tortured him all night and arose with him in the winter's morning; they followed him from class to class, they made him shrinkingly sensitive to every shade of manner in his companions, they sounded in his ears through the current voice of the professor; and he brought them home with him at night unabated and indeed increased. the cause of this increase lay in a chance encounter with the celebrated dr. gregory. archie stood looking vaguely in the lighted window of a book-shop, trying to nerve himself for the approaching ordeal. my lord and he had met and parted in the morning as they had now done for long, with scarcely the ordinary civilities of life; and it was plain to the son that nothing had yet reached the father's ears. indeed, when he recalled the awful countenance of my lord, a timid hope sprang up in him that perhaps there would be found no one bold enough to carry tales. if this were so, he asked himself, would he begin again? and he found no answer. it was at this moment that a hand was laid upon his arm, and a voice said in his ear, "my dear mr. archie, you had better come and see me." he started, turned round, and found himself face to face with dr. gregory. "and why should i come to see you?" he asked, with the defiance of the miserable. "because you are looking exceedingly ill," said the doctor, "and you very evidently want looking after, my young friend. good folk are scarce, you know; and it is not every one that would be quite so much missed as yourself. it is not every one that hermiston would miss." and with a nod and a smile, the doctor passed on. a moment after, archie was in pursuit, and had in turn, but more roughly, seized him by the arm. "what do you mean? what did you mean by saying that? what makes you think that hermis--my father would have missed me?" the doctor turned about and looked him all over with a clinical eye. a far more stupid man than dr. gregory might have guessed the truth; but ninety-nine out of a hundred, even if they had been equally inclined to kindness, would have blundered by some touch of charitable exaggeration. the doctor was better inspired. he knew the father well; in that white face of intelligence and suffering, he divined something of the son; and he told, without apology or adornment, the plain truth. "when you had the measles, mr. archibald, you had them gey and ill; and i thought you were going to slip between my fingers," he said. "well, your father was anxious. how did i know it? says you. simply because i am a trained observer. the sign that i saw him make, ten thousand would have missed; and perhaps--_perhaps_, i say, because he's a hard man to judge of--but perhaps he never made another. a strange thing to consider! it was this. one day i came to him: 'hermiston,' said i, 'there's a change.' he never said a word, just glowered at me (if ye'll pardon the phrase) like a wild beast. 'a change for the better,' said i. and i distinctly heard him take his breath." the doctor left no opportunity for anti-climax; nodding his cocked hat (a piece of antiquity to which he clung) and repeating "distinctly" with raised eyebrows, he took his departure, and left archie speechless in the street. the anecdote might be called infinitely little, and yet its meaning for archie was immense. "i did not know the old man had so much blood in him." he had never dreamed this sire of his, this aboriginal antique, this adamantine adam, had even so much of a heart as to be moved in the least degree for another--and that other himself, who had insulted him! with the generosity of youth, archie was instantly under arms upon the other side: had instantly created a new image of lord hermiston, that of a man who was all iron without and all sensibility within. the mind of the vile jester, the tongue that had pursued duncan jopp with unmanly insults, the unbeloved countenance that he had known and feared for so long, were all forgotten; and he hastened home, impatient to confess his misdeeds, impatient to throw himself on the mercy of this imaginary character. he was not to be long without a rude awakening. it was in the gloaming when he drew near the doorstep of the lighted house, and was aware of the figure of his father approaching from the opposite side. little daylight lingered; but on the door being opened, the strong yellow shine of the lamp gushed out upon the landing and shone full on archie, as he stood, in the old-fashioned observance of respect, to yield precedence. the judge came without haste, stepping stately and firm; his chin raised, his face (as he entered the lamplight) strongly illumined, his mouth set hard. there was never a wink of change in his expression; without looking to the right or left, he mounted the stair, passed close to archie, and entered the house. instinctively, the boy, upon his first coming, had made a movement to meet him; instinctively he recoiled against the railing, as the old man swept by him in a pomp of indignation. words were needless; he knew all--perhaps more than all--and the hour of judgment was at hand. it is possible that, in this sudden revulsion of hope and before these symptoms of impending danger, archie might have fled. but not even that was left to him. my lord, after hanging up his cloak and hat, turned round in the lighted entry, and made him an imperative and silent gesture with his thumb, and with the strange instinct of obedience, archie followed him into the house. all dinner-time there reigned over the judge's table a palpable silence, and as soon as the solids were despatched he rose to his feet. "m'killop, tak' the wine into my room," said he; and then to his son: "archie, you and me has to have a talk." it was at this sickening moment that archie's courage, for the first and last time, entirely deserted him. "i have an appointment," said he. "it'll have to be broken, then," said hermiston, and led the way into his study. the lamp was shaded, the fire trimmed to a nicety, the table covered deep with orderly documents, the backs of law-books made a frame upon all sides that was only broken by the window and the doors. for a moment hermiston warmed his hands at the fire, presenting his back to archie; then suddenly disclosed on him the terrors of the hanging face. "what's this i hear of ye?" he asked. there was no answer possible to archie. "i'll have to tell ye, then," pursued hermiston. "it seems ye've been skirling against the father that begot ye, and one of his maijesty's judges in this land; and that in the public street, and while an order of the court was being executit. forbye which, it would appear that ye've been airing your opeenions in a coallege debatin' society"; he paused a moment: and then, with extraordinary bitterness, added: "ye damned eediot." "i had meant to tell you," stammered archie. "i see you are well informed." "muckle obleeged to ye," said his lordship, and took his usual seat. "and so you disapprove of caapital punishment?" he added. "i am sorry, sir, i do," said archie. "i am sorry, too," said his lordship. "and now, if you please, we shall approach this business with a little more parteecularity. i hear that at the hanging of duncan jopp--and, man! ye had a fine client there--in the middle of all the riffraff of the ceety, ye thought fit to cry out, 'this is a damned murder, and my gorge rises at the man that haangit him.'" "no, sir, these were not my words," cried archie. "what were yer words, then?" asked the judge. "i believe i said, 'i denounce it as a murder!'" said the son. "i beg your pardon--a god-defying murder. i have no wish to conceal the truth," he added, and looked his father for a moment in the face. "god, it would only need that of it next!" cried hermiston. "there was nothing about your gorge rising, then?" "that was afterwards, my lord, as i was leaving the speculative. i said i had been to see the miserable creature hanged, and my gorge rose at it." "did ye, though?" said hermiston. "and i suppose ye knew who haangit him?" "i was present at the trial; i ought to tell you that, i ought to explain. i ask your pardon beforehand for any expression that may seem undutiful. the position in which i stand is wretched," said the unhappy hero, now fairly face to face with the business he had chosen. "i have been reading some of your cases. i was present while jopp was tried. it was a hideous business. father, it was a hideous thing! grant he was vile, why should you hunt him with a vileness equal to his own? it was done with glee--that is the word--you did it with glee; and i looked on, god help me! with horror." "you're a young gentleman that doesna approve of caapital punishment," said hermiston. "weel, i'm an auld man that does. i was glad to get jopp haangit, and what for would i pretend i wasna? you're all for honesty, it seems; you couldn't even steik your mouth on the public street. what for should i steik mines upon the bench, the king's officer, bearing the sword, a dreid to evil-doers, as i was from the beginning, and as i will be to the end! mair than enough of it! heedious! i never gave twa thoughts to heediousness, i have no call to be bonny. i'm a man that gets through with my day's business, and let that suffice." the ring of sarcasm had died out of his voice as he went on; the plain words became invested with some of the dignity of the justice-seat. "it would be telling you if you could say as much," the speaker resumed. "but ye cannot. ye've been reading some of my cases, ye say. but it was not for the law in them, it was to spy out your faither's nakedness, a fine employment in a son. you're splairging; you're running at lairge in life like a wild nowt. it's impossible you should think any longer of coming to the bar. you're not fit for it; no splairger is. and another thing: son of mines or no son of mines, you have flung fylement in public on one of the senators of the coallege of justice, and i would make it my business to see that ye were never admitted there yourself. there is a kind of a decency to be observit. then comes the next of it--what am i to do with ye next? ye'll have to find some kind of a trade, for i'll never support ye in idleset. what do ye fancy ye'll be fit for? the pulpit? na, they could never get diveenity into that bloackhead. him that the law of man whammles is no likely to do muckle better by the law of god. what would ye make of hell? wouldna your gorge rise at that? na, there's no room for splairgers under the fower quarters of john calvin. what else is there? speak up. have ye got nothing of your own?" "father, let me go to the peninsula," said archie. "that's all i'm fit for--to fight." "all? quo' he!" returned the judge. "and it would be enough too, if i thought it. but i'll never trust ye so near the french, you that's so frenchifeed." "you do me injustice there, sir," said archie. "i am loyal; i will not boast; but any interest i may have ever felt in the french--" "have ye been so loyal to me?" interrupted his father. there came no reply. "i think not," continued hermiston. "and i would send no man to be a servant to the king, god bless him! that has proved such a shauchling son to his own faither. you can splairge here on edinburgh street, and where's the hairm? it doesna play buff on me! and if there were twenty thousand eediots like yourself, sorrow a duncan jopp would hang the fewer. but there's no splairging possible in a camp; and if you were to go to it, you would find out for yourself whether lord well'n'ton approves of caapital punishment or not. you a sodger!" he cried, with a sudden burst of scorn. "ye auld wife, the sodgers would bray at ye like cuddies!" as at the drawing of a curtain, archie was aware of some illogicality in his position, and stood abashed. he had a strong impression, besides, of the essential valour of the old gentleman before him, how conveyed it would be hard to say. "well, have ye no other proposeetion?" said my lord again. "you have taken this so calmly, sir, that i cannot but stand ashamed," began archie. "i'm nearer voamiting, though, than you would fancy," said my lord. the blood rose to archie's brow. "i beg your pardon, i should have said that you had accepted my affront.... i admit it was an affront; i did not think to apologise, but i do, i ask your pardon; it will not be so again, i pass you my word of honour.... i should have said that i admired your magnanimity with--this--offender," archie concluded with a gulp. "i have no other son, ye see," said hermiston. "a bonny one i have gotten! but i must just do the best i can wi' him, and what am i to do? if ye had been younger, i would have wheepit ye for this rideeculous exhibeetion. the way it is, i have just to grin and bear. but one thing is to be clearly understood. as a faither, i must grin and bear it; but if i had been the lord advocate instead of the lord justice-clerk, son or no son, mr. erchibald weir would have been in a jyle the night." archie was now dominated. lord hermiston was coarse and cruel; and yet the son was aware of a bloomless nobility, an ungracious abnegation of the man's self in the man's office. at every word, this sense of the greatness of lord hermiston's spirit struck more home; and along with it that of his own impotence, who had struck--and perhaps basely struck--at his own father, and not reached so far as to have even nettled him. "i place myself in your hands without reserve," he said. "that's the first sensible word i've had of ye the night," said hermiston. "i can tell ye, that would have been the end of it, the one way or the other; but it's better ye should come there yourself, than what i would have had to hirstle ye. weel, by my way of it--and my way is the best--there's just the one thing it's possible that ye might be with decency, and that's a laird. ye'll be out of hairm's way at the least of it. if ye have to rowt, ye can rowt amang the kye; and the maist feck of the caapital punishment ye're like to come across'll be guddling trouts. now, i'm for no idle lairdies; every man has to work, if it's only at peddling ballants; to work, or to be wheeped, or to be haangit. if i set ye down at hermiston, i'll have to see you work that place the way it has never been workit yet; ye must ken about the sheep like a herd; ye must be my grieve there, and i'll see that i gain by ye. is that understood?" "i will do my best," said archie. "well, then, i'll send kirstie word the morn, and ye can go yourself the day after," said hermiston. "and just try to be less of an eediot!" he concluded, with a freezing smile, and turned immediately to the papers on his desk. chapter iv opinions of the bench late the same night, after a disordered walk, archie was admitted into lord glenalmond's dining-room, where he sat, with a book upon his knee, beside three frugal coals of fire. in his robes upon the bench, glenalmond had a certain air of burliness: plucked of these, it was a may-pole of a man that rose unsteadily from his chair to give his visitor welcome. archie had suffered much in the last days, he had suffered again that evening; his face was white and drawn, his eyes wild and dark. but lord glenalmond greeted him without the least mark of surprise or curiosity. "come in, come in," said he. "come in and take a seat. carstairs" (to his servant), "make up the fire, and then you can bring a bit of supper," and again to archie, with a very trivial accent: "i was half expecting you," he added. "no supper," said archie. "it is impossible that i should eat." "not impossible," said the tall old man, laying his hand upon his shoulder, "and, if you will believe me, necessary." "you know what brings me?" said archie, as soon as the servant had left the room. "i have a guess, i have a guess," replied glenalmond. "we will talk of it presently--when carstairs has come and gone, and you have had a piece of my good cheddar cheese and a pull at the porter tankard: not before." "it is impossible i should eat," repeated archie. "tut, tut!" said lord glenalmond. "you have eaten nothing to-day, and i venture to add, nothing yesterday. there is no case that may not be made worse; this may be a very disagreeable business, but if you were to fall sick and die, it would be still more so, and for all concerned--for all concerned." "i see you must know all," said archie. "where did you hear it?" "in the mart of scandal, in the parliament house," said glenalmond. "it runs riot below among the bar and the public, but it sifts up to us upon the bench, and rumour has some of her voices even in the divisions." carstairs returned at this moment, and rapidly laid out a little supper; during which lord glenalmond spoke at large and a little vaguely on indifferent subjects, so that it might be rather said of him that he made a cheerful noise, than that he contributed to human conversation; and archie sat upon the other side, not heeding him, brooding over his wrongs and errors. but so soon as the servant was gone, he broke forth again at once. "who told my father? who dared to tell him? could it have been you?" "no, it was not me," said the judge; "although--to be quite frank with you, after i had seen and warned you--it might have been me. i believe it was glenkindie." "that shrimp!" cried archie. "as you say, that shrimp," returned my lord; "although really it is scarce a fitting mode of expression for one of the senators of the college of justice. we were hearing the parties in a long, crucial case, before the fifteenth; creech was moving at some length for an infeftment; when i saw glenkindie lean forward to hermiston with his hand over his mouth and make him a secret communication. no one could have guessed its nature from your father; from glenkindie, yes, his malice sparked out of him a little grossly. but your father, no. a man of granite. the next moment he pounced upon creech. 'mr. creech,' says he, 'i'll take a look of that sasine,' and for thirty minutes after," said glenalmond, with a smile, "messrs. creech and co. were fighting a pretty uphill battle, which resulted, i need hardly add, in their total rout. the case was dismissed. no, i doubt if ever i heard hermiston better inspired. he was literally rejoicing _in apicibus juris_." archie was able to endure no longer. he thrust his plate away and interrupted the deliberate and insignificant stream of talk. "here," he said, "i have made a fool of myself, if i have not made something worse. do you judge between us--judge between a father and a son. i can speak to you; it is not like ... i will tell you what i feel and what i mean to do; and you shall be the judge," he repeated. "i decline jurisdiction," said glenalmond, with extreme seriousness. "but, my dear boy, if it will do you any good to talk, and if it will interest you at all to hear what i may choose to say when i have heard you, i am quite at your command. let an old man say it, for once, and not need to blush: i love you like a son." there came a sudden sharp sound in archie's throat. "ay," he cried, "and there it is! love! like a son! and how do you think i love my father?" "quietly, quietly," says my lord. "i will be very quiet," replied archie. "and i will be baldly frank. i do not love my father; i wonder sometimes if i do not hate him. there's my shame; perhaps my sin; at least, and in the sight of god, not my fault. how was i to love him? he has never spoken to me, never smiled upon me; i do not think he ever touched me. you know the way he talks? you do not talk so, yet you can sit and hear him without shuddering, and i cannot. my soul is sick when he begins with it; i could smite him in the mouth. and all that's nothing. i was at the trial of this jopp. you were not there, but you must have heard him often; the man's notorious for it, for being--look at my position! he's my father and this is how i have to speak of him--notorious for being a brute and cruel and a coward. lord glenalmond, i give you my word, when i came out of that court, i longed to die--the shame of it was beyond my strength: but i--i----" he rose from his seat and began to pace the room in a disorder. "well, who am i? a boy, who have never been tried, have never done anything except this twopenny impotent folly with my father. but i tell you, my lord, and i know myself, i am at least that kind of a man--or that kind of a boy, if you prefer it--that i could die in torments rather than that any one should suffer as that scoundrel suffered. well, and what have i done? i see it now. i have made a fool of myself, as i said in the beginning; and i have gone back, and asked my father's pardon, and placed myself wholly in his hands--and he has sent me to hermiston," with a wretched smile, "for life, i suppose--and what can i say? he strikes me as having done quite right, and let me off better than i had deserved." "my poor, dear boy!" observed glenalmond. "my poor, dear and, if you will allow me to say so, very foolish boy! you are only discovering where you are; to one of your temperament, or of mine, a painful discovery. the world was not made for us; it was made for ten hundred millions of men, all different from each other and from us; there's no royal road there, we just have to sclamber and tumble. don't think that i am at all disposed to be surprised; don't suppose that i ever think of blaming you; indeed i rather admire! but there fall to be offered one or two observations on the case which occur to me and which (if you will listen to them dispassionately) may be the means of inducing you to view the matter more calmly. first of all, i cannot acquit you of a good deal of what is called intolerance. you seem to have been very much offended because your father talks a little sculduddery after dinner, which it is perfectly licit for him to do, and which (although i am not very fond of it myself) appears to be entirely an affair of taste. your father, i scarcely like to remind you, since it is so trite a commonplace, is older than yourself. at least, he is _major_ and _sui juris_, and may please himself in the matter of his conversation. and, do you know, i wonder if he might not have as good an answer against you and me? we say we sometimes find him _coarse_, but i suspect he might retort that he finds us always dull. perhaps a relevant exception." he beamed on archie, but no smile could be elicited. "and now," proceeded the judge, "for 'archibald on capital punishment.' this is a very plausible academic opinion; of course i do not and i cannot hold it; but that's not to say that many able and excellent persons have not done so in the past. possibly, in the past also, i may have a little dipped myself in the same heresy. my third client, or possibly my fourth, was the means of a return in my opinions. i never saw the man i more believed in; i would have put my hand in the fire; i would have gone to the cross for him; and when it came to trial he was gradually pictured before me, by undeniable probation, in the light of so gross, so cold-blooded, and so black-hearted a villain, that i had a mind to have cast my brief upon the table. i was then boiling against the man with even a more tropical temperature than i had been boiling for him. but i said to myself: 'no, you have taken up his case; and because you have changed your mind it must not be suffered to let drop. all that rich tide of eloquence that you prepared last night with so much enthusiasm is out of place, and yet you must not desert him, you must say something.' so i said something, and i got him off. it made my reputation. but an experience of that kind is formative. a man must not bring his passions to the bar--or to the bench," he added. the story had slightly rekindled archie's interest. "i could never deny," he began--"i mean i can conceive that some men would be better dead. but who are we to know all the springs of god's unfortunate creatures? who are we to trust ourselves where it seems that god himself must think twice before he treads, and to do it with delight? yes, with delight. _tigris ut aspera_." "perhaps not a pleasant spectacle," said glenalmond. "and yet, do you know, i think somehow a great one." "i've had a long talk with him to-night," said archie. "i was supposing so," said glenalmond. "and he struck me--i cannot deny that he struck me as something very big," pursued the son. "yes, he is big. he never spoke about himself; only about me. i suppose i admired him. the dreadful part----" "suppose we did not talk about that," interrupted glenalmond. "you know it very well, it cannot in any way help that you should brood upon it, and i sometimes wonder whether you and i--who are a pair of sentimentalists--are quite good judges of plain men." "how do you mean?" asked archie. "_fair_ judges, i mean," replied glenalmond. "can we be just to them? do we not ask too much? there was a word of yours just now that impressed me a little when you asked me who we were to know all the springs of god's unfortunate creatures. you applied that, as i understood, to capital cases only. but does it--i ask myself--does it not apply all through? is it any less difficult to judge of a good man or of a half-good man, than of the worst criminal at the bar? and may not each have relevant excuses?" "ah, but we do not talk of punishing the good," cried archie. "no, we do not talk of it," said glenalmond. "but i think we do it. your father, for instance." "you think i have punished him?" cried archie. lord glenalmond bowed his head. "i think i have," said archie. "and the worst is, i think he feels it! how much, who can tell, with such a being? but i think he does." "and i am sure of it," said glenalmond. "has he spoken to you, then?" cried archie. "o no," replied the judge. "i tell you honestly," said archie, "i want to make it up to him. i will go, i have already pledged myself to go, to hermiston. that was to him. and now i pledge myself to you, in the sight of god, that i will close my mouth on capital punishment and all other subjects where our views may clash, for--how long shall i say? when shall i have sense enough?--ten years. is that well?" "it is well," said my lord. "as far as it goes," said archie. "it is enough as regards myself, it is to lay down enough of my conceit. but as regards him, whom i have publicly insulted? what am i to do to him? how do you pay attentions to a--an alp like that?" "only in one way," replied glenalmond. "only by obedience, punctual, prompt, and scrupulous." "and i promise that he shall have it," answered archie. "i offer you my hand in pledge of it." "and i take your hand as a solemnity," replied the judge. "god bless you, my dear, and enable you to keep your promise. god guide you in the true way, and spare your days, and preserve to you your honest heart." at that, he kissed the young man upon the forehead in a gracious, distant, antiquated way; and instantly launched, with a marked change of voice, into another subject. "and now, let us replenish the tankard; and i believe, if you will try my cheddar again, you would find you had a better appetite. the court has spoken, and the case is dismissed." "no, there is one thing i must say," cried archie. "i must say it in justice to himself. i know--i believe faithfully, slavishly, after our talk--he will never ask me anything unjust. i am proud to feel it, that we have that much in common, i am proud to say it to you." the judge, with shining eyes, raised his tankard. "and i think perhaps that we might permit ourselves a toast," said he. "i should like to propose the health of a man very different from me and very much my superior--a man from whom i have often differed, who has often (in the trivial expression) rubbed me the wrong way, but whom i have never ceased to respect and, i may add, to be not a little afraid of. shall i give you his name?" "the lord justice-clerk, lord hermiston," said archie, almost with gaiety; and the pair drank the toast deeply. it was not precisely easy to re-establish, after these emotional passages, the natural flow of conversation. but the judge eked out what was wanting with kind looks, produced his snuff-box (which was very rarely seen) to fill in a pause, and at last, despairing of any further social success, was upon the point of getting down a book to read a favourite passage, when there came a rather startling summons at the front door, and carstairs ushered in my lord glenkindie, hot from a midnight supper. i am not aware that glenkindie was ever a beautiful object, being short, and gross-bodied, and with an expression of sensuality comparable to a bear's. at that moment, coming in hissing from many potations, with a flushed countenance and blurred eyes, he was strikingly contrasted with the tall, pale, kingly figure of glenalmond. a rush of confused thought came over archie--of shame that this was one of his father's elect friends; of pride, that at the least of it hermiston could carry his liquor; and last of all, of rage, that he should have here under his eyes the man that had betrayed him. and then that too passed away; and he sat quiet, biding his opportunity. the tipsy senator plunged at once into an explanation with glenalmond. there was a point reserved yesterday, he had been able to make neither head nor tail of it, and seeing lights in the house, he had just dropped in for a glass of porter--and at this point he became aware of the third person. archie saw the cod's mouth and the blunt lips of glenkindie gape at him for a moment, and the recognition twinkle in his eyes. "who's this?" said he. "what? is this possibly you, don quickshot? and how are ye? and how's your father? and what's all this we hear of you? it seems you're a most extraordinary leveller, by all tales. no king, no parliaments, and your gorge rises at the macers, worthy men! hoot, toot! dear, dear me! your father's son too! most rideeculous!" archie was on his feet, flushing a little at the reappearance of his unhappy figure of speech, but perfectly self-possessed. "my lord--and you, lord glenalmond, my dear friend," he began, "this is a happy chance for me, that i can make my confession and offer my apologies to two of you at once." "ah, but i don't know about that. confession? it'll be judeecial, my young friend," cried the jocular glenkindie. "and i'm afraid to listen to ye. think if ye were to make me a coanvert!" "if you would allow me, my lord," returned archie, "what i have to say is very serious to me; and be pleased to be humorous after i am gone!" "remember, i'll hear nothing against the macers!" put in the incorrigible glenkindie. but archie continued as though he had not spoken. "i have played, both yesterday and to-day, a part for which i can only offer the excuse of youth. i was so unwise as to go to an execution; it seems i made a scene at the gallows; not content with which, i spoke the same night in a college society against capital punishment. this is the extent of what i have done, and in case you hear more alleged against me, i protest my innocence. i have expressed my regret already to my father, who is so good as to pass my conduct over--in a degree, and upon the condition that i am to leave my law studies." ... chapter v winter on the moors . _at hermiston_ the road to hermiston runs for a great part of the way up the valley of a stream, a favourite with anglers and with midges, full of falls and pools, and shaded by willows and natural woods of birch. here and there, but at great distances, a byway branches off, and a gaunt farmhouse may be descried above in a fold of the hill; but the more part of the time, the road would be quite empty of passage and the hills of habitation. hermiston parish is one of the least populous in scotland; and, by the time you came that length, you would scarce be surprised at the inimitable smallness of the kirk, a dwarfish, ancient place seated for fifty, and standing in a green by the burn-side among two-score gravestones. the manse close by, although no more than a cottage, is surrounded by the brightness of a flower-garden and the straw roofs of bees; and the whole colony, kirk and manse, garden and graveyard, finds harbourage in a grove of rowans, and is all the year round in a great silence broken only by the drone of the bees, the tinkle of the burn, and the bell on sundays. a mile beyond the kirk the road leaves the valley by a precipitous ascent, and brings you a little after to the place of hermiston, where it comes to an end in the back-yard before the coach-house. all beyond and about is the great field of the hills; the plover, the curlew, and the lark cry there; the wind blows as it blows in a ship's rigging, hard and cold and pure; and the hill-tops huddle one behind another, like a herd of cattle, into the sunset. the house was sixty years old, unsightly, comfortable; a farmyard and a kitchen-garden on the left, with a fruit wall where little hard green pears came to their maturity about the end of october. the policy (as who should say the park) was of some extent, but very ill reclaimed; heather and moor-fowl had crossed the boundary wall and spread and roosted within; and it would have tasked a landscape gardener to say where policy ended and unpolicied nature began. my lord had been led by the influence of mr. sheriff scott into a considerable design of planting; many acres were accordingly set out with fir, and the little feathery besoms gave a false scale and lent a strange air of a toy-shop to the moors. a great, rooty sweetness of bogs was in the air, and at all seasons an infinite melancholy piping of hill birds. standing so high and with so little shelter, it was a cold, exposed house, splashed by showers, drenched by continuous rains that made the gutters to spout, beaten upon and buffeted by all the winds of heaven; and the prospect would be often black with tempest, and often white with the snows of winter. but the house was wind and weather proof, the hearths were kept bright, and the rooms pleasant with live fires of peat; and archie might sit of an evening and hear the squalls bugle on the moorland, and watch the fire prosper in the earthy fuel, and the smoke winding up the chimney, and drink deep of the pleasures of shelter. solitary as the place was, archie did not want neighbours. every night, if he chose, he might go down to the manse and share a "brewst" of toddy with the minister--a hare-brained ancient gentleman, long and light and still active, though his knees were loosened with age, and his voice broke continually in childish trebles--and his lady wife, a heavy, comely dame, without a word to say for herself beyond good-even and good-day. harum-scarum, clodpole young lairds of the neighbourhood paid him the compliment of a visit. young hay of romanes rode down to call, on his crop-eared pony; young pringle of drumanno came up on his bony grey. hay remained on the hospitable field, and must be carried to bed; pringle got somehow to his saddle about a.m., and (as archie stood with the lamp on the upper doorstep) lurched, uttered a senseless view-holloa, and vanished out of the small circle of illumination like a wraith. yet a minute or two longer the clatter of his break-neck flight was audible, then it was cut off by the intervening steepness of the hill; and again, a great while after, the renewed beating of phantom horsehoofs, far in the valley of the hermiston, showed that the horse at least, if not his rider, was still on the homeward way. there was a tuesday club at the "crosskeys" in crossmichael, where the young bloods of the countryside congregated and drank deep on a percentage of the expense, so that he was left gainer who should have drunk the most. archie had no great mind to this diversion, but he took it like a duty laid upon him, went with a decent regularity, did his manfullest with the liquor, held up his head in the local jests, and got home again and was able to put up his horse, to the admiration of kirstie and the lass that helped her. he dined at driffel, supped at windielaws. he went to the new year's ball at huntsfield and was made welcome, and thereafter rode to hounds with my lord muirfell, upon whose name, as that of a legitimate lord of parliament, in a work so full of lords of session, my pen should pause reverently. yet the same fate attended him here as in edinburgh. the habit of solitude tends to perpetuate itself, and an austerity of which he was quite unconscious, and a pride which seemed arrogance, and perhaps was chiefly shyness, discouraged and offended his new companions. hay did not return more than twice, pringle never at all, and there came a time when archie even desisted from the tuesday club, and became in all things--what he had had the name of almost from the first--the recluse of hermiston. high-nosed miss pringle of drumanno and high-stepping miss marshall of the mains were understood to have had a difference of opinion about him the day after the ball--he was none the wiser, he could not suppose himself to be remarked by these entrancing ladies. at the ball itself my lord muirfell's daughter, the lady flora, spoke to him twice, and the second time with a touch of appeal, so that her colour rose and her voice trembled a little in his ear, like a passing grace in music. he stepped back with a heart on fire, coldly and not ungracefully excused himself, and a little after watched her dancing with young drumanno of the empty laugh, and was harrowed at the sight, and raged to himself that this was a world in which it was given to drumanno to please, and to himself only to stand aside and envy. he seemed excluded, as of right, from the favour of such society--seemed to extinguish mirth wherever he came, and was quick to feel the wound, and desist, and retire into solitude. if he had but understood the figure he presented, and the impression he made on these bright eyes and tender hearts; if he had but guessed that the recluse of hermiston, young, graceful, well spoken, but always cold, stirred the maidens of the county with the charm of byronism when byronism was new, it may be questioned whether his destiny might not even yet have been modified. it may be questioned, and i think it should be doubted. it was in his horoscope to be parsimonious of pain to himself, or of the chance of pain, even to the avoidance of any opportunity of pleasure; to have a roman sense of duty, an instinctive aristocracy of manners and taste; to be the son of adam weir and jean rutherford. . _kirstie_ kirstie was now over fifty, and might have sat to a sculptor. long of limb, and still light of foot, deep-breasted, robust-loined, her golden hair not yet mingled with any trace of silver, the years had but caressed and embellished her. by the lines of a rich and vigorous maternity, she seemed destined to be the bride of heroes and the mother of their children; and behold, by the iniquity of fate, she had passed through her youth alone, and drew near to the confines of age, a childless woman. the tender ambitions that she had received at birth had been, by time and disappointment, diverted into a certain barren zeal of industry and fury of interference. she carried her thwarted ardours into housework, she washed floors with her empty heart. if she could not win the love of one with love, she must dominate all by her temper. hasty, wordy, and wrathful, she had a drawn quarrel with most of her neighbours, and with the others not much more than armed neutrality. the grieve's wife had been "sneisty"; the sister of the gardener who kept house for him had shown herself "upsitten"; and she wrote to lord hermiston about once a year demanding the discharge of the offenders, and justifying the demand by much wealth of detail. for it must not be supposed that the quarrel rested with the wife and did not take in the husband also--or with the gardener's sister, and did not speedily include the gardener himself. as the upshot of all this petty quarrelling and intemperate speech, she was practically excluded (like a lightkeeper on his tower) from the comforts of human association; except with her own indoor drudge, who, being but a lassie and entirely at her mercy, must submit to the shifty weather of "the mistress's" moods without complaint, and be willing to take buffets or caresses according to the temper of the hour. to kirstie, thus situate and in the indian summer of her heart, which was slow to submit to age, the gods sent this equivocal good thing of archie's presence. she had known him in the cradle and paddled him when he misbehaved; and yet, as she had not so much as set eyes on him since he was eleven and had his last serious illness, the tall, slender, refined, and rather melancholy young gentleman of twenty came upon her with the shock of a new acquaintance. he was "young hermiston," "the laird himsel'": he had an air of distinctive superiority, a cold straight glance of his black eyes, that abashed the woman's tantrums in the beginning, and therefore the possibility of any quarrel was excluded. he was new, and therefore immediately aroused her curiosity; he was reticent, and kept it awake. and lastly he was dark and she fair, and he was male and she female, the everlasting fountains of interest. her feeling partook of the loyalty of a clanswoman, the hero-worship of a maiden aunt, and the idolatry due to a god. no matter what he had asked of her, ridiculous or tragic, she would have done it and joyed to do it. her passion, for it was nothing less, entirely filled her. it was a rich physical pleasure to make his bed or light his lamp for him when he was absent, to pull off his wet boots or wait on him at dinner when he returned. a young man who should have so doted on the idea, moral and physical, of any woman, might be properly described as being in love, head and heels, and would have behaved himself accordingly. but kirstie--though her heart leaped at his coming footsteps--though, when he patted her shoulder, her face brightened for the day--had not a hope or thought beyond the present moment and its perpetuation to the end of time. till the end of time she would have had nothing altered, but still continue delightedly to serve her idol, and be repaid (say twice in the month) with a clap on the shoulder. i have said her heart leaped--it is the accepted phrase. but rather, when she was alone in any chamber of the house, and heard his foot passing on the corridors, something in her bosom rose slowly until her breath was suspended, and as slowly fell again with a deep sigh, when the steps had passed and she was disappointed of her eyes' desire. this perpetual hunger and thirst of his presence kept her all day on the alert. when he went forth at morning, she would stand and follow him with admiring looks. as it grew late and drew to the time of his return, she would steal forth to a corner of the policy wall and be seen standing there sometimes by the hour together, gazing with shaded eyes, waiting the exquisite and barren pleasure of his view a mile off on the mountains. when at night she had trimmed and gathered the fire, turned down his bed, and laid out his night-gear--when there was no more to be done for the king's pleasure, but to remember him fervently in her usually very tepid prayers, and go to bed brooding upon his perfections, his future career, and what she should give him the next day for dinner--there still remained before her one more opportunity; she was still to take in the tray and say good-night. sometimes archie would glance up from his book with a preoccupied nod and a perfunctory salutation which was in truth a dismissal; sometimes--and by degrees more often--the volume would be laid aside, he would meet her coming with a look of relief; and the conversation would be engaged, last out the supper, and be prolonged till the small hours by the waning fire. it was no wonder that archie was fond of company after his solitary days; and kirstie, upon her side, exerted all the arts of her vigorous nature to ensnare his attention. she would keep back some piece of news during dinner to be fired off with the entrance of the supper tray, and form as it were the _lever de rideau_ of the evening's entertainment. once he had heard her tongue wag, she made sure of the result. from one subject to another she moved by insidious transitions, fearing the least silence, fearing almost to give him time for an answer lest it should slip into a hint of separation. like so many people of her class, she was a brave narrator; her place was on the hearthrug and she made it a rostrum, miming her stories as she told them, fitting them with vital detail, spinning them out with endless "quo' he's" and "quo' she's," her voice sinking into a whisper over the supernatural or the horrific; until she would suddenly spring up in affected surprise, and pointing to the clock, "mercy, mr. archie!" she would say, "whatten a time o' night is this of it! god forgive me for a daft wife!" so it befell, by good management, that she was not only the first to begin these nocturnal conversations, but invariably the first to break them off; so she managed to retire and not to be dismissed. . _a border family_ such an unequal intimacy has never been uncommon in scotland, where the clan spirit survives; where the servant tends to spend her life in the same service, a help-meet at first, then a tyrant, and at last a pensioner; where, besides, she is not necessarily destitute of the pride of birth, but is, perhaps, like kirstie, a connection of her master's, and at least knows the legend of her own family, and may count kinship with some illustrious dead. for that is the mark of the scot of all classes: that he stands in an attitude towards the past unthinkable to englishmen, and remembers and cherishes the memory of his forebears, good or bad; and there burns alive in him a sense of identity with the dead even to the twentieth generation. no more characteristic instance could be found than in the family of kirstie elliott. they were all, and kirstie the first of all, ready and eager to pour forth the particulars of their genealogy, embellished with every detail that memory had handed down or fancy fabricated; and, behold! from every ramification of that tree there dangled a halter. the elliotts themselves have had a chequered history; but these elliotts deduced, besides, from three of the most unfortunate of the border clans--the nicksons, the ellwalds, and the crozers. one ancestor after another might be seen appearing a moment out of the rain and the hill mist upon his furtive business, speeding home, perhaps, with a paltry booty of lame horses and lean kine, or squealing and dealing death in some moorland feud of the ferrets and the wild cats. one after another closed his obscure adventures in mid-air, triced up to the arm of the royal gibbet or the baron's dule-tree. for the rusty blunderbuss of scots criminal justice, which usually hurt nobody but jurymen, became a weapon of precision for the nicksons, the ellwalds, and the crozers. the exhilaration of their exploits seemed to haunt the memories of their descendants alone, and the shame to be forgotten. pride glowed in their bosoms to publish their relationship to "andrew ellwald of the laverockstanes, called 'unchancy dand,' who was justifeed wi' seeven mair of the same name at jeddart in the days of king james the sax." in all this tissue of crime and misfortune, the elliotts of cauldstaneslap had one boast which must appear legitimate: the males were gallows-birds, born outlaws, petty thieves, and deadly brawlers; but, according to the same tradition, the females were all chaste and faithful. the power of ancestry on the character is not limited to the inheritance of cells. if i buy ancestors by the gross from the benevolence of lyon king of arms, my grandson (if he is scottish) will feel a quickening emulation of their deeds. the men of the elliotts were proud, lawless, violent as of right, cherishing and prolonging a tradition. in like manner with the women. and the woman, essentially passionate and reckless, who crouched on the rug, in the shine of the peat fire, telling these tales, had cherished through life a wild integrity of virtue. her father gilbert had been deeply pious, a savage disciplinarian in the antique style, and withal a notorious smuggler. "i mind when i was a bairn getting mony a skelp and being shoo'd to bed like pou'try," she would say. "that would be when the lads and their bit kegs were on the road. we've had the riffraff of two-three counties in our kitchen, mony's the time, betwix' the twelve and the three; and their lanterns would be standing in the forecourt, ay, a score o' them at once. but there was nae ungodly talk permitted at cauldstaneslap; my faither was a consistent man in walk and conversation; just let slip an aith, and there was the door to ye! he had that zeal for the lord, it was a fair wonder to hear him pray, but the faim'ly has aye had a gift that way." this father was twice married, once to a dark woman of the old ellwald stock, by whom he had gilbert, presently of cauldstaneslap; and, secondly, to the mother of kirstie. "he was an auld man when he married her, a fell auld man wi' a muckle voice--you could hear him rowting from the top o' the kye-skairs," she said; "but for her, it appears she was a perfit wonder. it was gentle blood she had, mr. archie, for it was your ain. the country-side gaed gyte about her and her gowden hair. mines is no to be mentioned wi' it, and there's few weemen has mair hair than what i have, or yet a bonnier colour. often would i tell my dear miss jeannie--that was your mother, dear, she was cruel ta'en up about her hair, it was unco tender, ye see--'hoots, miss jeannie,' i would say, 'just fling your washes and your french dentifrishes in the back o' the fire, for that's the place for them; and awa' down to a burn side, and wash yersel' in cauld hill water, and dry your bonny hair in the caller wind o' the muirs, the way that my mother aye washed hers, and that i have aye made it a practice to have wishen mines--just you do what i tell ye, my dear, and ye'll give me news of it! ye'll have hair, and routh of hair, a pigtail as thick's my arm,' i said, 'and the bonniest colour like the clear gowden guineas, so as the lads in kirk'll no can keep their eyes off it!' weel, it lasted out her time, puir thing! i cuttit a lock of it upon her corp that was lying there sae cauld. i'll show it ye some of thir days if ye're good. but, as i was sayin', my mither----" on the death of the father there remained golden-haired kirstie, who took service with her distant kinsfolk, the rutherfords, and black-a-vised gilbert, twenty years older, who farmed the cauldstaneslap, married, and begot four sons between and , and a daughter, like a postscript, in ' , the year of camperdown and cape st. vincent. it seemed it was a tradition in the family to wind up with a belated girl. in , at the age of sixty, gilbert met an end that might be called heroic. he was due home from market any time from eight at night till five in the morning, and in any condition from the quarrelsome to the speechless, for he maintained to that age the goodly customs of the scots farmer. it was known on this occasion that he had a good bit of money to bring home; the word had gone round loosely. the laird had shown his guineas, and if anybody had but noticed it, there was an ill-looking, vagabond crew, the scum of edinburgh, that drew out of the market long ere it was dusk and took the hill-road by hermiston, where it was not to be believed that they had lawful business. one of the country-side, one dickieson, they took with them to be their guide, and dear he paid for it! of a sudden, in the ford of the broken dykes, this vermin clan fell on the laird, six to one, and him three parts asleep, having drunk hard. but it is ill to catch an elliott. for a while, in the night and the black water that was deep as to his saddle-girths, he wrought with his staff like a smith at his stithy, and great was the sound of oaths and blows. with that the ambuscade was burst, and he rode for home with a pistol-ball in him, three knife wounds, the loss of his front teeth, a broken rib and bridle, and a dying horse. that was a race with death that the laird rode. in the mirk night, with his broken bridle and his head swimming, he dug his spurs to the rowels in the horse's side, and the horse, that was even worse off than himself, the poor creature! screamed out like a person as he went, so that the hills echoed with it, and the folks at cauldstaneslap got to their feet about the table and looked at each other with white faces. the horse fell dead at the yard gate, the laird won the length of the house and fell there on the threshold. to the son that raised him he gave the bag of money. "hae," said he. all the way up the thieves had seemed to him to be at his heels, but now the hallucination left him--he saw them again in the place of the ambuscade--and the thirst of vengeance seized on his dying mind. raising himself and pointing with an imperious finger into the black night from which he had come, he uttered the single command, "brocken dykes," and fainted. he had never been loved, but he had been feared in honour. at that sight, at that word, gasped out at them from a toothless and bleeding mouth, the old elliott spirit awoke with a shout in the four sons. "wanting the hat," continues my author, kirstie, whom i but haltingly follow, for she told this tale like one inspired, "wanting guns, for there wasna twa grains o' pouder in the house, wi' nae mair weepons than their sticks into their hands, the fower o' them took the road. only hob, and that was the eldest, hunkered at the door-sill where the blood had rin, fyled his hand wi' it, and haddit it up to heeven in the way o' the auld border aith. 'hell shall have her ain again this nicht!' he raired, and rode forth upon his earrand." it was three miles to broken dykes, down hill, and a sore road. kirstie had seen men from edinburgh dismounting there in plain day to lead their horses. but the four brothers rode it as if auld hornie were behind and heaven in front. come to the ford, and there was dickieson. by all tales, he was not dead, but breathed and reared upon his elbow, and cried out to them for help. it was at a graceless face that he asked mercy. as soon as hob saw, by the glint of the lantern, the eyes shining and the whiteness of the teeth in the man's face, "damn you!" says he; "ye hae your teeth, hae ye?" and rode his horse to and fro upon that human remnant. beyond that, dandie must dismount with the lantern to be their guide; he was the youngest son, scarce twenty at the time. "a' nicht long they gaed in the wet heath and jennipers, and whaur they gaed they neither knew nor cared, but just followed the bluid-stains and the footprints o' their faither's murderers. and a' nicht dandie had his nose to the grund like a tyke, and the ithers followed and spak' naething, neither black nor white. there was nae noise to be heard, but just the sough of the swalled burns, and hob, the dour yin, risping his teeth as he gaed." with the first glint of the morning they saw they were on the drove-road, and at that the four stopped and had a dram to their breakfasts, for they knew that dand must have guided them right, and the rogues could be but little ahead, hot foot for edinburgh by the way of the pentland hills. by eight o'clock they had word of them--a shepherd had seen four men "uncoly mishandled" go by in the last hour. "that's yin a piece," says clem, and swung his cudgel. "five o' them!" says hob. "god's death, but the faither was a man! and him drunk!" and then there befell them what my author termed "a sair misbegowk," for they were overtaken by a posse of mounted neighbours come to aid in the pursuit. four sour faces looked on the reinforcement. "the deil's broughten you!" said clem, and they rode thenceforward in the rear of the party with hanging heads. before ten they had found and secured the rogues, and by three of the afternoon, as they rode up the vennel with their prisoners, they were aware of a concourse of people bearing in their midst something that dripped. "for the boady of the saxt," pursued kirstie, "wi' his head smashed like a hazel-nit, had been a' that nicht in the chairge o' hermiston water, and it dunting in on the stanes, and grunding it on the shallows, and flinging the deid thing heels-ower-hurdie at the fa's o' spango; and in the first o' the day, tweed had got a hold o' him and carried him off like a wind, for it was uncoly swalled, and raced wi' him, bobbing under braesides, and was long playing with the creature in the drumlie lynns under the castle, and at the hinder end of all cuist him up on the sterling of crossmichael brig. sae there they were a'thegither at last (for dickieson had been brought in on a cart long syne), and folk could see what mainner o' man my brither had been that had held his head again sax and saved the siller, and him drunk!" thus died of honourable injuries and in the savour of fame gilbert elliott of the cauldstaneslap; but his sons had scarce less glory out of the business. their savage haste, the skill with which dand had found and followed the trail, the barbarity to the wounded dickieson (which was like an open secret in the county), and the doom which it was currently supposed they had intended for the others, struck and stirred popular imagination. some century earlier the last of the minstrels might have fashioned the last of the ballads out of that homeric fight and chase; but the spirit was dead, or had been reincarnated already in mr. sheriff scott, and the degenerate moorsmen must be content to tell the tale in prose, and to make of the "four black brothers" a unit after the fashion of the "twelve apostles" or the "three musketeers." robert, gilbert, clement, and andrew--in the proper border diminutives, hob, gib, clem, and dand elliott--these ballad heroes, had much in common; in particular, their high sense of the family and the family honour; but they went diverse ways, and prospered and failed in different businesses. according to kirstie, "they had a' bees in their bonnets but hob." hob the laird was, indeed, essentially a decent man. an elder of the kirk, nobody had heard an oath upon his lips, save, perhaps, thrice or so at the sheep-washing, since the chase of his father's murderers. the figure he had shown on that eventful night disappeared as if swallowed by a trap. he who had ecstatically dipped his hand in the red blood, he who had ridden down dickieson, became, from that moment on, a stiff and rather graceless model of the rustic proprieties; cannily profiting by the high war prices, and yearly stowing away a little nest-egg in the bank against calamity; approved of and sometimes consulted by the greater lairds for the massive and placid sense of what he said, when he could be induced to say anything; and particularly valued by the minister, mr. torrance, as a right-hand man in the parish, and a model to parents. the transfiguration had been for the moment only; some barbarossa, some old adam of our ancestors, sleeps in all of us till the fit circumstance shall call it into action; and, for as sober as he now seemed, hob had given once for all the measure of the devil that haunted him. he was married, and, by reason of the effulgence of that legendary night, was adored by his wife. he had a mob of little lusty, barefoot children who marched in a caravan the long miles to school, the stages of whose pilgrimage were marked by acts of spoliation and mischief, and who were qualified in the country-side as "fair pests." but in the house, if "faither was in," they were quiet as mice. in short, hob moved through life in a great peace--the reward of any one who shall have killed his man, with any formidable and figurative circumstance, in the midst of a country gagged and swaddled with civilisation. it was a current remark that the elliotts were "guid and bad, like sanguishes"; and certainly there was a curious distinction, the men of business coming alternately with the dreamers. the second brother, gib, was a weaver by trade, had gone out early into the world to edinburgh, and come home again with his wings singed. there was an exaltation in his nature which had led him to embrace with enthusiasm the principles of the french revolution, and had ended by bringing him under the hawse of my lord hermiston in that furious onslaught of his upon the liberals, which sent muir and palmer into exile and dashed the party into chaff. it was whispered that my lord, in his great scorn for the movement, and prevailed upon a little by a sense of neighbourliness, had given gib a hint. meeting him one day in the potterrow, my lord had stopped in front of him: "gib, ye eediot," he had said, "what's this i hear of you? poalitics, poalitics, poalitics, weaver's poalitics, is the way of it, i hear. if ye arena a'thegither dozened with eediocy, ye'll gang your ways back to cauldstaneslap, and ca' your loom, and ca' your loom, man!" and gilbert had taken him at the word and returned, with an expedition almost to be called flight, to the house of his father. the clearest of his inheritance was that family gift of prayer of which kirstie had boasted; and the baffled politician now turned his attention to religious matters--or, as others said, to heresy and schism. every sunday morning he was in crossmichael, where he had gathered together, one by one, a sect of about a dozen persons, who called themselves "god's remnant of the true faithful," or, for short, "god's remnant." to the profane they were known as "gib's deils." bailie sweedie, a noted humorist in the town, vowed that the proceedings always opened to the tune of "the deil fly away with the exciseman," and that the sacrament was dispensed in the form of hot whisky-toddy; both wicked hits at the evangelist, who had been suspected of smuggling in his youth, and had been overtaken (as the phrase went) on the streets of crossmichael one fair day. it was known that every sunday they prayed for a blessing on the arms of buonaparte. for this, "god's remnant," as they were "skailing" from the cottage that did duty for a temple, had been repeatedly stoned by the bairns, and gib himself hooted by a squadron of border volunteers in which his own brother, dand, rode in a uniform and with a drawn sword. the "remnant" were believed, besides, to be "antinomian in principle," which might otherwise have been a serious charge, but the way public opinion then blew it was quite swallowed up and forgotten in the scandal about buonaparte. for the rest, gilbert had set up his loom in an outhouse at cauldstaneslap, where he laboured assiduously six days of the week. his brothers, appalled by his political opinions, and willing to avoid dissension in the household, spoke but little to him; he less to them, remaining absorbed in the study of the bible and almost constant prayer. the gaunt weaver was dry-nurse at cauldstaneslap, and the bairns loved him dearly. except when he was carrying an infant in his arms, he was rarely seen to smile--as, indeed, there were few smilers in that family. when his sister-in-law rallied him, and proposed that he should get a wife and bairns of his own, since he was so fond of them, "i have no clearness of mind upon that point," he would reply. if nobody called him in to dinner, he stayed out. mrs. hob, a hard, unsympathetic woman, once tried the experiment. he went without food all day, but at dusk, as the light began to fail him, he came into the house of his own accord, looking puzzled. "i've had a great gale of prayer upon my speerit," said he. "i canna mind sae muckle's what i had for denner." the creed of god's remnant was justified in the life of its founder. "and yet i dinna ken," said kirstie. "he's maybe no more stock-fish than his neeghbours! he rode wi' the rest o' them, and had a good stamach to the work, by a' that i hear! god's remnant! the deil's clavers! there wasna muckle christianity in the way hob guided johnny dickieson, at the least of it; but guid kens! is he a christian even? he might be a mahommedan or a deevil or a fireworshipper, for what i ken." the third brother had his name on a door-plate, no less, in the city of glasgow, "mr. clement elliott," as long as your arm. in this case, that spirit of innovation which had shown itself timidly in the case of hob by the admission of new manures, and which had run to waste with gilbert in subversive politics and heretical religions, bore useful fruit in many ingenious mechanical improvements. in boyhood, from his addiction to strange devices of sticks and string, he had been counted the most eccentric of the family. but that was all by now; and he was a partner of his firm, and looked to die a bailie. he too had married, and was rearing a plentiful family in the smoke and din of glasgow; he was wealthy, and could have bought out his brother, the cock-laird, six times over, it was whispered; and when he slipped away to cauldstaneslap for a well-earned holiday, which he did as often as he was able, he astonished the neighbours with his broadcloth, his beaver hat, and the ample plies of his neckcloth. though an eminently solid man at bottom, after the pattern of hob, he had contracted a certain glasgow briskness and _aplomb_ which set him off. all the other elliotts were as lean as a rake, but clement was laying on fat, and he panted sorely when he must get into his boots. dand said, chuckling: "ay, clem has the elements of a corporation." "a provost and corporation," returned clem. and his readiness was much admired. the fourth brother, dand, was a shepherd to his trade, and by starts, when he could bring his mind to it, excelled in the business. nobody could train a dog like dandie; nobody, through the peril of great storms in the winter time, could do more gallantly. but if his dexterity were exquisite, his diligence was but fitful; and he served his brother for bed and board, and a trifle of pocket-money when he asked for it. he loved money well enough, knew very well how to spend it, and could make a shrewd bargain when he liked. but he preferred a vague knowledge that he was well to windward to any counted coins in the pocket; he felt himself richer so. hob would expostulate: "i'm an amature herd." dand would reply, "i'll keep your sheep to you when i'm so minded, but i'll keep my liberty too. thir's no man can coandescend on what i'm worth." clem would expound to him the miraculous results of compound interest, and recommend investments. "ay, man?" dand would say; "and do you think, if i took hob's siller, that i wouldna drink it or wear it on the lassies? and, anyway, my kingdom is no of this world. either i'm a poet or else i'm nothing." clem would remind him of old age. "i'll die young, like robbie burns," he would say stoutly. no question but he had a certain accomplishment in minor verse. his "hermiston burn," with its pretty refrain-- "i love to gang thinking whaur ye gang linking, hermiston burn, in the howe"; his "auld, auld elliotts, clay-cauld elliotts, dour, bauld elliotts of auld," and his really fascinating piece about the praying weaver's stone, had gained him in the neighbourhood the reputation, still possible in scotland, of a local bard; and, though not printed himself, he was recognised by others who were and who had become famous. walter scott owed to dandie the text of the "raid of wearie" in the "minstrelsy"; and made him welcome at his house, and appreciated his talents, such as they were, with all his usual generosity. the ettrick shepherd was his sworn crony; they would meet, drink to excess, roar out their lyrics in each other's faces, and quarrel and make it up again till bedtime. and besides these recognitions, almost to be called official, dandie was made welcome for the sake of his gift through the farmhouses of several contiguous dales, and was thus exposed to manifold temptations which he rather sought than fled. he had figured on the stool of repentance, for once fulfilling to the letter the tradition of his hero and model. his humorous verses to mr. torrance on that occasion--"kenspeckle here my lane i stand"--unfortunately too indelicate for further citation, ran through the country like a fiery cross; they were recited, quoted, paraphrased, and laughed over as far away as dumfries on the one hand and dunbar on the other. these four brothers were united by a close bond, the bond of that mutual admiration--or rather mutual hero-worship--which is so strong among the members of secluded families who have much ability and little culture. even the extremes admired each other. hob, who had as much poetry as the tongs, professed to find pleasure in dand's verses; clem, who had no more religion than claverhouse, nourished a heartfelt, at least an open-mouthed, admiration of gib's prayers; and dandie followed with relish the rise of clem's fortunes. indulgence followed hard on the heels of admiration. the laird, clem, and dand, who were tories and patriots of the hottest quality, excused to themselves, with a certain bashfulness, the radical and revolutionary heresies of gib. by another division of the family, the laird, clem, and gib, who were men exactly virtuous, swallowed the dose of dand's irregularities as a kind of clog or drawback in the mysterious providence of god affixed to bards, and distinctly probative of poetical genius. to appreciate the simplicity of their mutual admiration it was necessary to hear clem, arrived upon one of his visits, and dealing in a spirit of continuous irony with the affairs and personalities of that great city of glasgow where he lived and transacted business. the various personages, ministers of the church, municipal officers, mercantile big-wigs, whom he had occasion to introduce, were all alike denigrated, all served but as reflectors to cast back a flattering side-light on the house of cauldstaneslap. the provost, for whom clem by exception entertained a measure of respect, he would liken to hob. "he minds me o' the laird there," he would say. "he has some of hob's grand, whunstane sense, and the same way with him of steiking his mouth when he's no very pleased." and hob, all unconscious, would draw down his upper lip and produce, as if for comparison, the formidable grimace referred to. the unsatisfactory incumbent of st. enoch's kirk was thus briefly dismissed: "if he had but twa fingers o' gib's, he would waken them up." and gib, honest man! would look down and secretly smile. clem was a spy whom they had sent out into the world of men. he had come back with the good news that there was nobody to compare with the four black brothers, no position that they would not adorn, no official that it would not be well they should replace, no interest of mankind, secular or spiritual, which would not immediately bloom under their supervision. the excuse of their folly is in two words: scarce the breadth of a hair divided them from the peasantry. the measure of their sense is this: that these symposia of rustic vanity were kept entirely within the family, like some secret ancestral practice. to the world their serious faces were never deformed by the suspicion of any simper of self-contentment. yet it was known. "they hae a guid pride o' themsel's!" was the word in the country-side. lastly, in a border story, there should be added their "two-names." hob was the laird. "roy ne puis, prince ne daigne"; he was the laird of cauldstaneslap--say fifty acres--_ipsissimus_. clement was mr. elliott, as upon his door-plate, the earlier dafty having been discarded as no longer applicable, and indeed only a reminder of misjudgment and the imbecility of the public; and the youngest, in honour of his perpetual wanderings, was known by the sobriquet of randy dand. it will be understood that not all this information was communicated by the aunt, who had too much of the family failing herself to appreciate it thoroughly in others. but as time went on, archie began to observe an omission in the family chronicle. "is there not a girl too?" he asked. "ay: kirstie. she was named for me, or my grandmother at least--it's the same thing," returned the aunt, and went on again about dand, whom she secretly preferred by reason of his gallantries. "but what is your niece like?" said archie at the next opportunity. "her? as black's your hat! but i dinna suppose she would maybe be what you would ca' _ill-looked_ a'thegither. na, she's a kind of a handsome jaud--a kind o' gipsy," said the aunt, who had two sets of scales for men and women--or perhaps it would be more fair to say that she had three, and the third and the most loaded was for girls. "how comes it that i never see her in church?" said archie. "'deed, and i believe she's in glesgie with clem and his wife. a heap good she's like to get of it! i dinna say for men folk, but where weemen folk are born, there let them bide. glory to god, i was never far'er from here than crossmichael." in the meanwhile it began to strike archie as strange, that while she thus sang the praises of her kinsfolk, and manifestly relished their virtues and (i may say) their vices like a thing creditable to herself, there should appear not the least sign of cordiality between the house of hermiston and that of cauldstaneslap. going to church of a sunday, as the lady housekeeper stepped with her skirts kilted, three tucks of her white petticoat showing below, and her best india shawl upon her back (if the day were fine) in a pattern of radiant dyes, she would sometimes overtake her relatives preceding her more leisurely in the same direction. gib of course was absent: by skreigh of day he had been gone to crossmichael and his fellow-heretics; but the rest of the family would be seen marching in open order: hob and dand, stiff-necked, straight-backed six-footers, with severe dark faces, and their plaids about their shoulders; the convoy of children scattering (in a state of high polish) on the wayside, and every now and again collected by the shrill summons of the mother; and the mother herself, by a suggestive circumstance which might have afforded matter of thought to a more experienced observer than archie, wrapped in a shawl nearly identical with kirstie's, but a thought more gaudy and conspicuously newer. at the sight, kirstie grew more tall--kirstie showed her classical profile, nose in air and nostril spread, the pure blood came in her cheek evenly in a delicate living pink. "a braw day to ye, mistress elliott," said she, and hostility and gentility were nicely mingled in her tones. "a fine day, mem," the laird's wife would reply with a miraculous curtsey, spreading the while her plumage--setting off, in other words, and with arts unknown to the mere man, the pattern of her india shawl. behind her, the whole cauldstaneslap contingent marched in closer order, and with an indescribable air of being in the presence of the foe; and while dandie saluted his aunt with a certain familiarity as of one who was well in court, hob marched on in awful immobility. there appeared upon the face of this attitude in the family the consequences of some dreadful feud. presumably the two women had been principals in the original encounter, and the laird had probably been drawn into the quarrel by the ears, too late to be included in the present skin-deep reconciliation. "kirstie," said archie one day, "what is this you have against your family?" "i dinna complean," said kirstie, with a flush. "i say naething." "i see you do not--not even good-day to your own nephew," said he. "i hae naething to be ashamed of," said she. "i can say the lord's prayer with a good grace. if hob was ill, or in preeson or poverty, i would see to him blithely. but for curtchying and complimenting and colloguing, thank ye kindly!" archie had a bit of a smile: he leaned back in his chair. "i think you and mrs. robert are not very good friends," says he slily, "when you have your india shawls on?" she looked upon him in silence, with a sparkling eye but an indecipherable expression; and that was all that archie was ever destined to learn of the battle of the india shawls. "do none of them ever come here to see you?" he inquired. "mr. archie," said she, "i hope that i ken my place better. it would be a queer thing, i think, if i was to clamjamfry up your faither's house--that i should say it!--wi' a dirty, black-a-vised clan, no ane o' them it was worth while to mar soap upon but just mysel'! na, they're all damnifeed wi' the black ellwalds. i have nae patience wi' black folk." then, with a sudden consciousness of the case of archie, "no that it maitters for men sae muckle," she made haste to add, "but there's naebody can deny that it's unwomanly. long hair is the ornament o' woman ony way; we've good warrandise for that--it's in the bible--and wha can doubt that the apostle had some gowden-haired lassie in his mind--apostle and all, for what was he but just a man like yersel'?" chapter vi a leaf from christina's psalm-book archie was sedulous at church. sunday after sunday he sat down and stood up with that small company, heard the voice of mr. torrance leaping like an ill-played clarionet from key to key, and had an opportunity to study his moth-eaten gown and the black thread mittens that he joined together in prayer, and lifted up with a reverent solemnity in the act of benediction. hermiston pew was a little square box, dwarfish in proportion with the kirk itself, and enclosing a table not much bigger than a footstool. there sat archie, an apparent prince, the only undeniable gentleman and the only great heritor in the parish, taking his ease in the only pew, for no other in the kirk had doors. thence he might command an undisturbed view of that congregation of solid plaided men, strapping wives and daughters, oppressed children, and uneasy sheep-dogs. it was strange how archie missed the look of race; except the dogs, with their refined foxy faces and inimitably curling tails, there was no one present with the least claim to gentility. the cauldstaneslap party was scarcely an exception; dandie perhaps, as he amused himself making verses through the interminable burden of the service, stood out a little by the glow in his eye and a certain superior animation of face and alertness of body; but even dandie slouched like a rustic. the rest of the congregation, like so many sheep, oppressed him with a sense of hob-nailed routine, day following day--of physical labour in the open air, oatmeal porridge, peas bannock, the somnolent fireside in the evening, and the night-long nasal slumbers in a box-bed. yet he knew many of them to be shrewd and humorous, men of character, notable women, making a bustle in the world and radiating an influence from their low-browed doors. he knew besides they were like other men; below the crust of custom, rapture found a way; he had heard them beat the timbrel before bacchus--had heard them shout and carouse over their whisky-toddy; and not the most dutch-bottomed and severe faces among them all, not even the solemn elders themselves, but were capable of singular gambols at the voice of love. men drawing near to an end of life's adventurous journey--maids thrilling with fear and curiosity on the threshold of entrance--women who had borne and perhaps buried children, who could remember the clinging of the small dead hands and the patter of the little feet now silent--he marvelled that among all those faces there should be no face of expectation, none that was mobile, none into which the rhythm and poetry of life had entered. "o for a live face," he thought; and at times he had a memory of lady flora; and at times he would study the living gallery before him with despair, and would see himself go on to waste his days in that joyless, pastoral place, and death come to him, and his grave be dug under the rowans, and the spirit of the earth laugh out in a thunder-peal at the huge fiasco. on this particular sunday, there was no doubt but that the spring had come at last. it was warm, with a latent shiver in the air that made the warmth only the more welcome. the shallows of the stream glittered and tinkled among bunches of primrose. vagrant scents of the earth arrested archie by the way with moments of ethereal intoxication. the grey, quakerish dale was still only awakened in places and patches from the sobriety of its winter colouring; and he wondered at its beauty; an essential beauty of the old earth it seemed to him, not resident in particulars but breathing to him from the whole. he surprised himself by a sudden impulse to write poetry--he did so sometimes, loose, galloping octosyllabics in the vein of scott--and when he had taken his place on a boulder, near some fairy falls and shaded by a whip of a tree that was already radiant with new leaves, it still more surprised him that he should find nothing to write. his heart perhaps beat in time to some vast indwelling rhythm of the universe. by the time he came to a corner of the valley and could see the kirk, he had so lingered by the way that the first psalm was finishing. the nasal psalmody, full of turns and trills and graceless graces, seemed the essential voice of the kirk itself upraised in thanksgiving. "everything's alive," he said; and again cries it aloud, "thank god, everything's alive!" he lingered yet a while in the kirkyard. a tuft of primroses was blooming hard by the leg of an old, black table tombstone, and he stopped to contemplate the random apologue. they stood forth on the cold earth with a trenchancy of contrast; and he was struck with a sense of incompleteness in the day, the season, and the beauty that surrounded him--the chill there was in the warmth, the gross black clods about the opening primroses, the damp earthy smell that was everywhere intermingled with the scents. the voice of the aged torrance within rose in an ecstasy. and he wondered if torrance also felt in his old bones the joyous influence of the spring morning; torrance, or the shadow of what once was torrance, that must come so soon to lie outside here in the sun and rain with all his rheumatisms, while a new minister stood in his room and thundered from his own familiar pulpit? the pity of it, and something of the chill of the grave, shook him for a moment as he made haste to enter. he went up the aisle reverently, and took his place in the pew with lowered eyes, for he feared he had already offended the kind old gentleman in the pulpit, and was sedulous to offend no further. he could not follow the prayer, not even the heads of it. brightnesses of azure, clouds of fragrance, a tinkle of falling water and singing birds, rose like exhalations from some deeper, aboriginal memory, that was not his, but belonged to the flesh on his bones. his body remembered; and it seemed to him that his body was in no way gross, but ethereal and perishable like a strain of music; and he felt for it an exquisite tenderness as for a child, an innocent, full of beautiful instincts and destined to an early death. and he felt for old torrance--of the many supplications, of the few days--a pity that was near to tears. the prayer ended. right over him was a tablet in the wall, the only ornament in the roughly masoned chapel--for it was no more; the tablet commemorated, i was about to say the virtues, but rather the existence of a former rutherford of hermiston; and archie, under that trophy of his long descent and local greatness, leaned back in the pew and contemplated vacancy with the shadow of a smile between playful and sad, that became him strangely. dandie's sister, sitting by the side of clem in her new glasgow finery, chose that moment to observe the young laird. aware of the stir of his entrance, the little formalist had kept her eyes fastened and her face prettily composed during the prayer. it was not hypocrisy, there was no one further from a hypocrite. the girl had been taught to behave: to look up, to look down, to look unconscious, to look seriously impressed in church, and in every conjuncture to look her best. that was the game of female life, and she played it frankly. archie was the one person in church who was of interest, who was somebody new, reputed eccentric, known to be young, and a laird, and still unseen by christina. small wonder that, as she stood there in her attitude of pretty decency, her mind should run upon him! if he spared a glance in her direction, he should know she was a well-behaved young lady who had been to glasgow. in reason he must admire her clothes, and it was possible that he should think her pretty. at that her heart beat the least thing in the world; and she proceeded, by way of a corrective, to call up and dismiss a series of fancied pictures of the young man who should now, by rights, be looking at her. she settled on the plainest of them--a pink short young man with a dish face and no figure, at whose admiration she could afford to smile; but for all that, the consciousness of his gaze (which was really fixed on torrance and his mittens) kept her in something of a flutter till the word amen. even then, she was far too well-bred to gratify her curiosity with any impatience. she resumed her seat languidly--this was a glasgow touch--she composed her dress, rearranged her nosegay of primroses, looked first in front, then behind upon the other side, and at last allowed her eyes to move, without hurry, in the direction of the hermiston pew. for a moment they were riveted. next she had plucked her gaze home again like a tame bird who should have meditated flight. possibilities crowded on her; she hung over the future and grew dizzy; the image of this young man, slim, graceful, dark, with the inscrutable half-smile, attracted and repelled her like a chasm. "i wonder, will i have met my fate?" she thought, and her heart swelled. torrance was got some way into his first exposition, positing a deep layer of texts as he went along, laying the foundations of his discourse, which was to deal with a nice point in divinity, before archie suffered his eyes to wander. they fell first of all on clem, looking insupportably prosperous, and patronising torrance with the favour of a modified attention, as of one who was used to better things in glasgow. though he had never before set eyes on him, archie had no difficulty in identifying him, and no hesitation in pronouncing him vulgar, the worst of the family. clem was leaning lazily forward when archie first saw him. presently he leaned nonchalantly back; and that deadly instrument, the maiden, was suddenly unmasked in profile. though not quite in the front of the fashion (had anybody cared!), certain artful glasgow mantua-makers, and her own inherent taste, had arrayed her to great advantage. her accoutrement was, indeed, a cause of heart-burning, and almost of scandal, in that infinitesimal kirk company. mrs. hob had said her say at cauldstaneslap. "daftlike!" she had pronounced it. "a jaiket that'll no meet! whaur's the sense of a jaiket that'll no button upon you, if it should come to be weet? what do ye ca' thir things? demmy brokens, d'ye say? they'll be brokens wi' a vengeance or ye can win back! weel, i have naething to do wi' it--it's no good taste." clem, whose purse had thus metamorphosed his sister, and who was not insensible to the advertisement, had come to the rescue with a "hoot, woman! what do you ken of good taste that has never been to the ceety?" and hob, looking on the girl with pleased smiles, as she timidly displayed her finery in the midst of the dark kitchen, had thus ended the dispute: "the cutty looks weel," he had said, "and it's no very like rain. wear them the day, hizzie; but it's no a thing to make a practice o'." in the breasts of her rivals, coming to the kirk very conscious of white under-linen, and their faces splendid with much soap, the sight of the toilet had raised a storm of varying emotion, from the mere unenvious admiration that was expressed in a long-drawn "eh!" to the angrier feeling that found vent in an emphatic "set her up!" her frock was of straw-coloured jaconet muslin, cut low at the bosom and short at the ankle, so as to display her _demi-broquins_ of regency violet, crossing with many straps upon a yellow cobweb stocking. according to the pretty fashion in which our grandmothers did not hesitate to appear, and our great-aunts went forth armed for the pursuit and capture of our great-uncles, the dress was drawn up so as to mould the contour of both breasts, and in the nook between, a cairngorm brooch maintained it. here, too, surely in a very enviable position, trembled the nosegay of primroses. she wore on her shoulders--or rather, on her back and not her shoulders, which it scarcely passed--a french coat of sarsenet, tied in front with margate braces, and of the same colour with her violet shoes. about her face clustered a disorder of dark ringlets, a little garland of yellow french roses surmounted her brow, and the whole was crowned by a village hat of chipped straw. amongst all the rosy and all the weathered faces that surrounded her in church, she glowed like an open flower--girl and raiment, and the cairngorm that caught the daylight and returned it in a fiery flash, and the threads of bronze and gold that played in her hair. archie was attracted by the bright thing like a child. he looked at her again and yet again, and their looks crossed. the lip was lifted from her little teeth. he saw the red blood work vividly under her tawny skin. her eye, which was great as a stag's, struck and held his gaze. he knew who she must be--kirstie, she of the harsh diminutive, his housekeeper's niece, the sister of the rustic prophet, gib--and he found in her the answer to his wishes. christina felt the shock of their encountering glances, and seemed to rise, clothed in smiles, into a region of the vague and bright. but the gratification was not more exquisite than it was brief. she looked away abruptly, and immediately began to blame herself for that abruptness. she knew what she should have done, too late--turned slowly with her nose in the air. and meantime his look was not removed, but continued to play upon her like a battery of cannon constantly aimed, and now seemed to isolate her alone with him, and now seemed to uplift her, as on a pillory, before the congregation. for archie continued to drink her in with his eyes, even as a wayfarer comes to a well-head on a mountain, and stoops his face, and drinks with thirst unassuageable. in the cleft of her little breasts the fiery eye of the topaz and the pale florets of primrose fascinated him. he saw the breasts heave, and the flowers shake with the heaving, and marvelled what should so much discompose the girl. and christina was conscious of his gaze--saw it, perhaps, with the dainty plaything of an ear that peeped among her ringlets; she was conscious of changing colour, conscious of her unsteady breath. like a creature tracked, run down, surrounded, she sought in a dozen ways to give herself a countenance. she used her handkerchief--it was a really fine one--then she desisted in a panic: "he would only think i was too warm." she took to reading in the metrical psalms, and then remembered it was sermon-time. last she put a "sugar-bool" in her mouth, and the next moment repented of the step. it was such a homely-like thing! mr. archie would never be eating sweeties in kirk; and, with a palpable effort, she swallowed it whole, and her colour flamed high. at this signal of distress archie awoke to a sense of his ill-behaviour. what had he been doing? he had been exquisitely rude in church to the niece of his housekeeper; he had stared like a lackey and a libertine at a beautiful and modest girl. it was possible, it was even likely, he would be presented to her after service in the kirkyard, and then how was he to look? and there was no excuse. he had marked the tokens of her shame, of her increasing indignation, and he was such a fool that he had not understood them. shame bowed him down, and he looked resolutely at mr. torrance: who little supposed, good, worthy man, as he continued to expound justification by faith, what was his true business: to play the part of derivative to a pair of children at the old game of falling in love. christina was greatly relieved at first. it seemed to her that she was clothed again. she looked back on what had passed. all would have been right if she had not blushed, a silly fool! there was nothing to blush at, if she _had_ taken a sugar-bool. mrs. mactaggart, the elder's wife in st. enoch's, took them often. and if he had looked at her, what was more natural than that a young gentleman should look at the best-dressed girl in church? and at the same time, she knew far otherwise, she knew there was nothing casual or ordinary in the look, and valued herself on its memory like a decoration. well, it was a blessing he had found something else to look at! and presently she began to have other thoughts. it was necessary, she fancied, that she should put herself right by a repetition of the incident, better managed. if the wish was father to the thought, she did not know or she would not recognise it. it was simply as a manoeuvre of propriety, as something called for to lessen the significance of what had gone before, that she should a second time meet his eyes, and this time without blushing. and at the memory of the blush, she blushed again, and became one general blush burning from head to foot. was ever anything so indelicate, so forward, done by a girl before? and here she was, making an exhibition of herself before the congregation about nothing! she stole a glance upon her neighbours, and behold! they were steadily indifferent, and clem had gone to sleep. and still the one idea was becoming more and more potent with her, that in common prudence she must look again before the service ended. something of the same sort was going forward in the mind of archie, as he struggled with the load of penitence. so it chanced that, in the flutter of the moment when the last psalm was given out, and torrance was reading the verse, and the leaves of every psalm-book in church were rustling under busy fingers, two stealthy glances were sent out like antennæ among the pews and on the indifferent and absorbed occupants, and drew timidly nearer to the straight line between archie and christina. they met, they lingered together for the least fraction of time, and that was enough. a charge as of electricity passed through christina, and behold! the leaf of her psalm-book was torn across. archie was outside by the gate of the graveyard, conversing with hob and the minister and shaking hands all round with the scattering congregation, when clem and christina were brought up to be presented. the laird took off his hat and bowed to her with grace and respect. christina made her glasgow curtsey to the laird, and went on again up the road for hermiston and cauldstaneslap, walking fast, breathing hurriedly with a heightened colour, and in this strange frame of mind, that when she was alone she seemed in high happiness, and when any one addressed her she resented it like a contradiction. a part of the way she had the company of some neighbour girls and a loutish young man; never had they seemed so insipid, never had she made herself so disagreeable. but these struck aside to their various destinations or were out-walked and left behind; and when she had driven off with sharp words the proffered convoy of some of her nephews and nieces, she was free to go on alone up hermiston brae, walking on air, dwelling intoxicated among clouds of happiness. near to the summit she heard steps behind her, a man's steps, light and very rapid. she knew the foot at once and walked the faster. "if it's me he's wanting, he can run for it," she thought, smiling. archie overtook her like a man whose mind was made up. "miss kirstie," he began. "miss christina, if you please, mr. weir," she interrupted. "i canna bear the contraction." "you forget it has a friendly sound for me. your aunt is an old friend of mine, and a very good one. i hope we shall see much of you at hermiston?" "my aunt and my sister-in-law doesna agree very well. not that i have much ado with it. but still when i'm stopping in the house, if i was to be visiting my aunt, it would not look considerate-like." "i am sorry," said archie. "i thank you kindly, mr. weir," she said. "i whiles think myself it's a great peety." "ah, i am sure your voice would always be for peace!" he cried. "i wouldna be too sure of that," she said. "i have my days like other folk, i suppose." "do you know, in our old kirk, among our good old grey dames, you made an effect like sunshine." "ah, but that would be my glasgow clothes!" "i did not think i was so much under the influence of pretty frocks." she smiled with a half look at him. "there's more than you!" she said. "but you see i'm only cinderella. i'll have to put all these things by in my trunk; next sunday i'll be as grey as the rest. they're glasgow clothes, you see, and it would never do to make a practice of it. it would seem terrible conspicuous." by that they were come to the place where their ways severed. the old grey moors were all about them; in the midst a few sheep wandered; and they could see on the one hand the straggling caravan scaling the braes in front of them for cauldstaneslap, and on the other, the contingent from hermiston bending off and beginning to disappear by detachments into the policy gate. it was in these circumstances that they turned to say farewell, and deliberately exchanged a glance as they shook hands. all passed as it should, genteelly; and in christina's mind, as she mounted the first steep ascent for cauldstaneslap, a gratifying sense of triumph prevailed over the recollection of minor lapses and mistakes. she had kilted her gown, as she did usually at that rugged pass; but when she spied archie still standing and gazing after her, the skirts came down again as if by enchantment. here was a piece of nicety for that upland parish, where the matrons marched with their coats kilted in the rain, and the lasses walked barefoot to kirk through the dust of summer, and went bravely down by the burn-side, and sat on stones to make a public toilet before entering! it was perhaps an air wafted from glasgow; or perhaps it marked a stage of that dizziness of gratified vanity, in which the instinctive act passed unperceived. he was looking after! she unloaded her bosom of a prodigious sigh that was all pleasure, and betook herself to run. when she had overtaken the stragglers of her family, she caught up the niece whom she had so recently repulsed, and kissed and slapped her, and drove her away again, and ran after her with pretty cries and laughter. perhaps she thought the laird might still be looking! but it chanced the little scene came under the view of eyes less favourable; for she overtook mrs. hob marching with clem and dand. "you're shürely fey, lass!" quoth dandie. "think shame to yersel', miss!" said the strident mrs. hob. "is this the gait to guide yersel' on the way hame frae kirk? you're shürely no sponsible the day! and anyway i would mind my guid claes." "hoot!" said christina, and went on before them, head in air, treading the rough track with the tread of a wild doe. she was in love with herself, her destiny, the air of the hills, the benediction of the sun. all the way home, she continued under the intoxication of these sky-scraping spirits. at table she could talk freely of young hermiston; gave her opinion of him off-hand and with a loud voice, that he was a handsome young gentleman, real well-mannered and sensible-like, but it was a pity he looked doleful. only--the moment after--a memory of his eyes in church embarrassed her. but for this inconsiderable check, all through meal-time she had a good appetite, and she kept them laughing at table, until gib (who had returned before them from crossmichael and his separative worship) reproved the whole of them for their levity. singing "in to herself" as she went, her mind still in the turmoil of a glad confusion, she rose and tripped upstairs to a little loft, lighted by four panes in the gable, where she slept with one of her nieces. the niece, who followed her, presuming on "auntie's" high spirits, was flounced out of the apartment with small ceremony, and retired, smarting and half tearful, to bury her woes in the byre among the hay. still humming, christina divested herself of her finery, and put her treasures one by one in her great green trunk. the last of these was the psalm-book; it was a fine piece, the gift of mistress clem, in distinct old-faced type, on paper that had begun to grow foxy in the warehouse--not by service--and she was used to wrap it in a handkerchief every sunday after its period of service was over, and bury it end-wise at the head of her trunk. as she now took it in hand the book fell open where the leaf was torn, and she stood and gazed upon that evidence of her bygone discomposure. there returned again the vision of the two brown eyes staring at her, intent and bright, out of that dark corner of the kirk. the whole appearance and attitude, the smile, the suggested gesture of young hermiston came before her in a flash at the sight of the torn page. "i was surely fey!" she said, echoing the words of dandie, and at the suggested doom her high spirits deserted her. she flung herself prone upon the bed, and lay there, holding the psalm-book in her hands for hours, for the more part in a mere stupor of unconsenting pleasure and unreasoning fear. the fear was superstitious; there came up again and again in her memory dandie's ill-omened words, and a hundred grisly and black tales out of the immediate neighbourhood read her a commentary on their force. the pleasure was never realised. you might say the joints of her body thought and remembered, and were gladdened, but her essential self, in the immediate theatre of consciousness, talked feverishly of something else, like a nervous person at a fire. the image that she most complacently dwelt on was that of miss christina in her character of the fair lass of cauldstaneslap, carrying all before her in the straw-coloured frock, the violet mantle, and the yellow cobweb stockings. archie's image, on the other hand, when it presented itself was never welcomed--far less welcomed with any ardour, and it was exposed at times to merciless criticism. in the long vague dialogues she held in her mind, often with imaginary, often with unrealised interlocutors, archie, if he were referred to at all, came in for savage handling. he was described as "looking like a stirk," "staring like a caulf," "a face like a ghaist's." "do you call that manners?" she said; or, "i soon put him in his place." "'_miss christina, if you please, mr. weir!_' says i, and just flyped up my skirt tails." with gabble like this she would entertain herself long whiles together, and then her eye would perhaps fall on the torn leaf, and the eyes of archie would appear again from the darkness of the wall, and the voluble words deserted her, and she would lie still and stupid, and think upon nothing with devotion, and be sometimes raised by a quiet sigh. had a doctor of medicine come into that loft, he would have diagnosed a healthy, well-developed, eminently vivacious lass lying on her face in a fit of the sulks; not one who had just contracted, or was just contracting, a mortal sickness of the mind which should yet carry her towards death and despair. had it been a doctor of psychology, he might have been pardoned for divining in the girl a passion of childish vanity, self-love _in excelsis_, and no more. it is to be understood that i have been painting chaos and describing the inarticulate. every lineament that appears is too precise, almost every word used too strong. take a finger-post in the mountains on a day of rolling mists; i have but copied the names that appear upon the pointers, the names of definite and famous cities far distant, and now perhaps basking in sunshine; but christina remained all these hours, as it were, at the foot of the post itself, not moving, and enveloped in mutable and blinding wreaths of haze. the day was growing late and the sunbeams long and level, when she sat suddenly up, and wrapped in its handkerchief and put by that psalm-book which had already played a part so decisive in the first chapter of her love-story. in the absence of the mesmerist's eye, we are told nowadays that the head of a bright nail may fill his place, if it be steadfastly regarded. so that torn page had riveted her attention on what might else have been but little, and perhaps soon forgotten; while the ominous words of dandie--heard, not heeded, and still remembered--had lent to her thoughts, or rather to her mood, a cast of solemnity, and that idea of fate--a pagan fate, uncontrolled by any christian deity, obscure, lawless, and august--moving undissuadably in the affairs of christian men. thus even that phenomenon of love at first sight, which is so rare and seems so simple and violent, like a disruption of life's tissue, may be decomposed into a sequence of accidents happily concurring. she put on a grey frock and a pink kerchief, looked at herself a moment with approval in the small square of glass that served her for a toilet mirror, and went softly downstairs through the sleeping house that resounded with the sound of afternoon snoring. just outside the door, dandie was sitting with a book in his hand, not reading, only honouring the sabbath by a sacred vacancy of mind. she came near him and stood still. "i'm for off up the muirs, dandie," she said. there was something unusually soft in her tones that made him look up. she was pale, her eyes dark and bright; no trace remained of the levity of the morning. "ay, lass? ye'll have yer ups and downs like me, i'm thinkin'," he observed. "what for do ye say that?" she asked. "o, for naething," says dand. "only i think ye're mair like me than the lave of them. ye've mair of the poetic temper, tho' guid kens little enough of the poetic taalent. it's an ill gift at the best. look at yoursel'. at denner you were all sunshine and flowers and laughter, and now you're like the star of evening on a lake." she drank in this hackneyed compliment like wine, and it glowed in her veins. "but i'm saying, dand"--she came nearer him--"i'm for the muirs. i must have a braith of air. if clem was to be speiring for me, try and quaiet him, will ye no?" "what way?" said dandie. "i ken but the ae way, and that's leein'. i'll say ye had a sair heed, if ye like." "but i havena," she objected. "i daursay no," he returned. "i said i would say ye had; and if ye like to nay-say me when ye come back, it'll no mateerially maitter, for my chara'ter's clean gane a'ready past reca'." "o, dand, are ye a leear?" she asked, lingering. "folks say sae," replied the bard. "wha says sae?" she pursued. "them that should ken the best," he responded. "the lassies, for ane." "but, dand, you would never lee to me?" she asked. "i'll leave that for your pairt of it, ye girzie," said he. "ye'll lee to me fast eneuch, when ye hae gotten a jo. i'm tellin' ye and it's true; when you have a jo, miss kirstie, it'll be for guid and ill. i ken: i was made that way mysel', but the deil was in my luck! here, gang awa' wi' ye to your muirs, and let me be; i'm in an hour of inspiraution, ye upsetting tawpie!" but she clung to her brother's neighbourhood, she knew not why. "will ye no gie's a kiss, dand?" she said. "i aye likit ye fine." he kissed her and considered her a moment; he found something strange in her. but he was a libertine through and through, nourished equal contempt and suspicion of all womankind, and paid his way among them habitually with idle compliments. "gae wa' wi' ye!" said he. "ye're a dentie baby, and be content wi' that!" that was dandie's way; a kiss and a comfit to jenny--a bawbee and my blessing to jill--and good-night to the whole clan of ye, my dears! when anything approached the serious, it became a matter for men, he both thought and said. women, when they did not absorb, were only children to be shoo'd away. merely in his character of connoisseur, however, dandle glanced carelessly after his sister as she crossed the meadow. "the brat's no that bad!" he thought with surprise, for though he had just been paying her compliments, he had not really looked at her. "hey! what's yon?" for the grey dress was cut with short sleeves and skirts, and displayed her trim strong legs clad in pink stockings of the same shade as the kerchief she wore round her shoulders, and that shimmered as she went. this was not her way in undress; he knew her ways and the ways of the whole sex in the country-side, no one better; when they did not go barefoot, they wore stout "rig and furrow" woollen hose of an invisible blue mostly, when they were not black outright; and dandie, at sight of this daintiness, put two and two together. it was a silk handkerchief, then they would be silken hose; they matched--then the whole outfit was a present of clem's, a costly present, and not something to be worn through bog and briar, or on a late afternoon of sunday. he whistled. "my denty may, either your heid's fair turned, or there's some ongoings!" he observed, and dismissed the subject. she went slowly at first, but ever straighter and faster for the cauldstaneslap, a pass among the hills to which the farm owed its name. the slap opened like a doorway between two rounded hillocks; and through this ran the short cut to hermiston. immediately on the other side it went down through the deil's hags, a considerable marshy hollow of the hill tops, full of springs, and crouching junipers, and pools where the black peat-water slumbered. there was no view from here. a man might have sat upon the praying weaver's stone a half-century, and seen none but the cauldstaneslap children twice in the twenty-four hours on their way to the school and back again, an occasional shepherd, the irruption of a clan of sheep, or the birds who haunted about the springs, drinking and shrilly piping. so, when she had once passed the slap, kirstie was received into seclusion. she looked back a last time at the farm. it still lay deserted except for the figure of dandie, who was now seen to be scribbling in his lap, the hour of expected inspiration having come to him at last. thence she passed rapidly through the morass, and came to the farther end of it, where a sluggish burn discharges, and the path for hermiston accompanies it on the beginning of its downward way. from this corner a wide view was opened to her of the whole stretch of braes upon the other side, still sallow and in places rusty with the winter, with the path marked boldly, here and there by the burn-side a tuft of birches, and--two miles off as the crow flies--from its enclosures and young plantations, the windows of hermiston glittering in the western sun. here she sat down and waited, and looked for a long time at these far-away bright panes of glass. it amused her to have so extended a view, she thought. it amused her to see the house of hermiston--to see "folk"; and there was an indistinguishable human unit, perhaps the gardener, visibly sauntering on the gravel paths. by the time the sun was down and all the easterly braes lay plunged in clear shadow, she was aware of another figure coming up the path at a most unequal rate of approach, now half running, now pausing and seeming to hesitate. she watched him at first with a total suspension of thought. she held her thought as a person holds his breathing. then she consented to recognise him. "he'll no be coming here, he canna be; it's no possible." and there began to grow upon her a subdued choking suspense. he _was_ coming; his hesitations had quite ceased, his step grew firm and swift; no doubt remained; and the question loomed up before her instant: what was she to do? it was all very well to say that her brother was a laird himself; it was all very well to speak of casual intermarriages and to count cousinship, like auntie kirstie. the difference in their social station was trenchant; propriety, prudence, all that she had ever learned, all that she knew, bade her flee. but on the other hand the cup of life now offered to her was too enchanting. for one moment, she saw the question clearly, and definitely made her choice. she stood up and showed herself an instant in the gap relieved upon the sky line; and the next, fled trembling and sat down glowing with excitement on the weaver's stone. she shut her eyes, seeking, praying for composure. her hand shook in her lap, and her mind was full of incongruous and futile speeches. what was there to make a work about? she could take care of herself, she supposed! there was no harm in seeing the laird. it was the best thing that could happen. she would mark a proper distance to him once and for all. gradually the wheels of her nature ceased to go round so madly, and she sat in passive expectation, a quiet, solitary figure in the midst of the grey moss. i have said she was no hypocrite, but here i am at fault. she never admitted to herself that she had come up the hill to look for archie. and perhaps after all she did not know, perhaps came as a stone falls. for the steps of love in the young, and especially in girls, are instinctive and unconscious. in the meantime archie was drawing rapidly near, and he at least was consciously seeking her neighbourhood. the afternoon had turned to ashes in his mouth; the memory of the girl had kept him from reading and drawn him as with cords; and at last, as the cool of the evening began to come on, he had taken his hat and set forth, with a smothered ejaculation, by the moor path to cauldstaneslap. he had no hope to find her, he took the off chance without expectation of result and to relieve his uneasiness. the greater was his surprise, as he surmounted the slope and came into the hollow of the deil's hags, to see there, like an answer to his wishes, the little womanly figure in the grey dress and the pink kerchief sitting little, and low, and lost, and acutely solitary, in these desolate surroundings and on the weather-beaten stone of the dead weaver. those things that still smacked of winter were all rusty about her, and those things that already relished of the spring had put forth the tender and lively colours of the season. even in the unchanging face of the death-stone, changes were to be remarked; and in the channeled lettering, the moss began to renew itself in jewels of green. by an afterthought that was a stroke of art, she had turned up over her head the back of the kerchief; so that it now framed becomingly her vivacious and yet pensive face. her feet were gathered under her on the one side, and she leaned on her bare arm, which showed out strong and round, tapered to a slim wrist, and shimmered in the fading light. young hermiston was struck with a certain chill. he was reminded that he now dealt in serious matters of life and death. this was a grown woman he was approaching, endowed with her mysterious potencies and attractions, the treasury of the continued race, and he was neither better nor worse than the average of his sex and age. he had a certain delicacy which had preserved him hitherto unspotted, and which (had either of them guessed it) made him a more dangerous companion when his heart should be really stirred. his throat was dry as he came near; but the appealing sweetness of her smile stood between them like a guardian angel. for she turned to him and smiled, though without rising. there was a shade in this cavalier greeting that neither of them perceived; neither he, who simply thought it gracious and charming as herself; nor yet she, who did not observe (quick as she was) the difference between rising to meet the laird, and remaining seated to receive the expected admirer. "are ye stepping west, hermiston?" said she, giving him his territorial name after the fashion of the countryside. "i was," said he, a little hoarsely, "but i think i will be about the end of my stroll now. are you like me, miss christina? the house would not hold me. i came here seeking air." he took his seat at the other end of the tombstone and studied her, wondering what was she. there was infinite import in the question alike for her and him. "ay," said she. "i couldna bear the roof either. it's a habit of mine to come up here about the gloaming when it's quaiet and caller." "it was a habit of my mother's also," he said gravely. the recollection half startled him as he expressed it. he looked around. "i have scarce been here since. it's peaceful," he said, with a long breath. "it's no like glasgow," she replied. "a weary place, yon glasgow! but what a day have i had for my hame-coming, and what a bonny evening!" "indeed, it was a wonderful day," said archie. "i think i will remember it years and years until i come to die. on days like this--i do not know if you feel as i do--but everything appears so brief, and fragile, and exquisite, that i am afraid to touch life. we are here for so short a time; and all the old people before us--rutherfords of hermiston, elliotts of the cauldstaneslap--that were here but a while since riding about and keeping up a great noise in this quiet corner--making love too, and marrying--why, where are they now? it's deadly commonplace, but, after all, the commonplaces are the great poetic truths." he was sounding her, semi-consciously, to see if she could understand him; to learn if she were only an animal the colour of flowers, or had a soul in her to keep her sweet. she, on her part, her means well in hand, watched, woman-like, for any opportunity to shine, to abound in his humour, whatever that might be. the dramatic artist, that lies dormant or only half awake in most human beings, had in her sprung to his feet in a divine fury, and chance had served her well. she looked upon him with a subdued twilight look that became the hour of the day and the train of thought; earnestness shone through her like stars in the purple west; and from the great but controlled upheaval of her whole nature there passed into her voice, and ran in her lightest words, a thrill of emotion. "have you mind of dand's song?" she answered. "i think he'll have been trying to say what you have been thinking." "no, i never heard it," he said. "repeat it to me, can you?" "it's nothing wanting the tune," said kirstie. "then sing it me," said he. "on the lord's day? that would never do, mr. weir!" "i am afraid i am not so strict a keeper of the sabbath, and there is no one in this place to hear us unless the poor old ancient under the stone." "no that i'm thinking that really," she said. "by my way of thinking, it's just as serious as a psalm. will i sooth it to ye, then?" "if you please," said he, and, drawing near to her on the tombstone, prepared to listen. she sat up as if to sing. "i'll only can sooth it to ye," she explained. "i wouldna like to sing out loud on the sabbath. i think the birds would carry news of it to gilbert," and she smiled. "it's about the elliotts," she continued, "and i think there's few bonnier bits in the book-poets, though dand has never got printed yet." and she began, in the low, clear tones of her half voice, now sinking almost to a whisper, now rising to a particular note which was her best, and which archie learned to wait for with growing emotion:-- "o they rade in the rain, in the days that are gane, in the rain and the wind and the lave, they shoutit in the ha' and they routit on the hill, but they're a' quaitit noo in the grave. auld, auld elliotts, clay-cauld elliotts, dour, bauld elliotts of auld!" all the time she sang she looked steadfastly before her, her knees straight, her hands upon her knee, head cast back and up. the expression was admirable throughout, for had she not learned it from the lips and under the criticism of the author? when it was done, she turned upon archie a face softly bright, and eyes gently suffused and shining in the twilight, and his heart rose and went out to her with boundless pity and sympathy. his question was answered. she was a human being tuned to a sense of the tragedy of life; there were pathos and music and a great heart in the girl. he arose instinctively, she also; for she saw she had gained a point, and scored the impression deeper, and she had wit enough left to flee upon a victory. they were but commonplaces that remained to be exchanged, but the low, moved voices in which they passed made them sacred in the memory. in the falling greyness of the evening he watched her figure winding through the morass, saw it turn a last time and wave a hand, and then pass through the slap; and it seemed to him as if something went along with her out of the deepest of his heart. and something surely had come, and come to dwell there. he had retained from childhood a picture, now half obliterated by the passage of time and the multitude of fresh impressions, of his mother telling him, with the fluttered earnestness of her voice, and often with dropping tears, the tale of the "praying weaver," on the very scene of his brief tragedy and long repose. and now there was a companion piece; and he beheld, and he should behold for ever, christina perched on the same tomb, in the grey colours of the evening, gracious, dainty, perfect as a flower, and she also singing-- "of old, unhappy far off things, and battles long ago," of their common ancestors now dead, of their rude wars composed, their weapons buried with them, and of these strange changelings, their descendants, who lingered a little in their places, and would soon be gone also, and perhaps sung of by others at the gloaming hour. by one of the unconscious arts of tenderness the two women were enshrined together in his memory. tears, in that hour of sensibility, came into his eyes indifferently at the thought of either; and the girl, from being something merely bright and shapely, was caught up into the zone of things serious as life and death and his dead mother. so that in all ways and on either side, fate played his game artfully with this poor pair of children. the generations were prepared, the pangs were made ready, before the curtain rose on the dark drama. in the same moment of time that she disappeared from archie, there opened before kirstie's eyes the cup-like hollow in which the farm lay. she saw, some five hundred feet below her, the house making itself bright with candles, and this was a broad hint to her to hurry. for they were only kindled on a sabbath night with a view to that family worship which rounded in the incomparable tedium of the day and brought on the relaxation of supper. already she knew that robert must be withinsides at the head of the table, "waling the portions"; for it was robert in his quality of family priest and judge, not the gifted gilbert, who officiated. she made good time accordingly down the steep ascent, and came up to the door panting as the three younger brothers, all roused at last from slumber, stood together in the cool and the dark of the evening with a fry of nephews and nieces about them, chatting and awaiting the expected signal. she stood back; she had no mind to direct attention to her late arrival or to her labouring breath. "kirstie, ye have shaved it this time, my lass," said clem. "whaur were ye?" "o, just taking a dander by mysel'," said kirstie. and the talk continued on the subject of the american war, without further reference to the truant who stood by them in the covert of the dusk, thrilling with happiness and the sense of guilt. the signal was given, and the brothers began to go in one after another, amid the jostle and throng of hob's children. only dandie, waiting till the last, caught kirstie by the arm. "when did ye begin to dander in pink hosen, mistress elliott?" he whispered slily. she looked down; she was one blush. "i maun have forgotten to change them," said she; and went in to prayers in her turn with a troubled mind, between anxiety as to whether dand should have observed her yellow stockings at church, and should thus detect her in a palpable falsehood, and shame that she had already made good his prophecy. she remembered the words of it, how it was to be when she had gotten a jo, and that that would be for good and evil. "will i have gotten my jo now?" she thought with a secret rapture. and all through prayers, where it was her principal business to conceal the pink stockings from the eyes of the indifferent mrs. hob--and all through supper, as she made a feint of eating and sat at the table radiant and constrained--and again when she had left them and come into her chamber, and was alone with her sleeping niece, and could at last lay aside the armour of society--the same words sounded within her, the same profound note of happiness, of a world all changed and renewed, of a day that had been passed in paradise, and of a night that was to be heaven opened. all night she seemed to be conveyed smoothly upon a shallow stream of sleep and waking, and through the bowers of beulah; all night she cherished to her heart that exquisite hope; and if, towards morning, she forgot it a while in a more profound unconsciousness, it was to catch again the rainbow thought with her first moment of awaking. chapter vii enter mephistopheles two days later a gig from crossmichael deposited frank innes at the doors of hermiston. once in a way, during the past winter, archie, in some acute phase of boredom, had written him a letter. it had contained something in the nature of an invitation, or a reference to an invitation--precisely what, neither of them now remembered. when innes had received it, there had been nothing further from his mind than to bury himself in the moors with archie; but not even the most acute political heads are guided through the steps of life with unerring directness. that would require a gift of prophecy which has been denied to man. for instance, who could have imagined that, not a month after he had received the letter, and turned it into mockery, and put off answering it, and in the end lost it, misfortunes of a gloomy cast should begin to thicken over frank's career? his case may be briefly stated. his father, a small morayshire laird with a large family, became recalcitrant and cut off the supplies; he had fitted himself out with the beginnings of quite a good law library, which, upon some sudden losses on the turf, he had been obliged to sell before they were paid for; and his bookseller, hearing some rumour of the event, took out a warrant for his arrest. innes had early word of it, and was able to take precautions. in this immediate welter of his affairs, with an unpleasant charge hanging over him, he had judged it the part of prudence to be off instantly, had written a fervid letter to his father at inverauld, and put himself in the coach for crossmichael. any port in a storm! he was manfully turning his back on the parliament house and its gay babble, on porter and oysters, the racecourse and the ring; and manfully prepared, until these clouds should have blown by, to share a living grave with archie weir at hermiston. to do him justice, he was no less surprised to be going than archie was to see him come; and he carried off his wonder with an infinitely better grace. "well, here i am!" said he, as he alighted. "pylades has come to orestes at last. by the way, did you get my answer? no? how very provoking! well, here i am to answer for myself, and that's better still." "i am very glad to see you, of course," said archie. "i make you heartily welcome, of course. but you surely have not come to stay, with the courts still sitting; is that not most unwise?" "damn the courts!" says frank. "what are the courts to friendship and a little fishing?" and so it was agreed that he was to stay, with no term to the visit but the term which he had privily set to it himself--the day, namely, when his father should have come down with the dust, and he should be able to pacify the bookseller. on such vague conditions there began for these two young men (who were not even friends) a life of great familiarity and, as the days drew on, less and less intimacy. they were together at meal-times, together o' nights when the hour had come for whisky-toddy; but it might have been noticed (had there been any one to pay heed) that they were rarely so much together by day. archie had hermiston to attend to, multifarious activities in the hills, in which he did not require, and had even refused, frank's escort. he would be off sometimes in the morning and leave only a note on the breakfast-table to announce the fact; and sometimes with no notice at all, he would not return for dinner until the hour was long past. innes groaned under these desertions; it required all his philosophy to sit down to a solitary breakfast with composure and all his unaffected good-nature to be able to greet archie with friendliness on the more rare occasions when he came home late for dinner. "i wonder what on earth he finds to do, mrs. elliott?" said he one morning, after he had just read the hasty billet and sat down to table. "i suppose it will be business, sir," replied the housekeeper drily, measuring his distance off to him by an indicated curtsey. "but i can't imagine what business!" he reiterated. "i suppose it will be _his_ business," retorted the austere kirstie. he turned to her with that happy brightness that made the charm of his disposition, and broke into a peal of healthy and natural laughter. "well played, mrs. elliott!" he cried; and the housekeeper's face relaxed into the shadow of an iron smile. "well played indeed!" said he. "but you must not be making a stranger of me like that. why, archie and i were at the high school together, and we've been to college together, and we were going to the bar together, when--you know! dear, dear me! what a pity that was! a life spoiled, a fine young fellow as good as buried here in the wilderness with rustics; and all for what? a frolic, silly, if you like, but no more. god, how good your scones are, mrs. elliott!" "they're no mines, it was the lassie made them," said kirstie; "and, saving your presence, there's little sense in taking the lord's name in vain about idle vivers that you fill your kyte wi'." "i daresay you're perfectly right, ma'am," quoth the imperturbable frank. "but as i was saying, this is a pitiable business, this about poor archie; and you and i might do worse than put our heads together, like a couple of sensible people, and bring it to an end. let me tell you, ma'am, that archie is really quite a promising young man, and in my opinion he would do well at the bar. as for his father, no one can deny his ability, and i don't fancy any one would care to deny that he has the deil's own temper----" "if you'll excuse me, mr. innes, i think the lass is crying on me," said kirstie, and flounced from the room. "the damned, cross-grained, old broom-stick!" ejaculated innes. in the meantime, kirstie had escaped into the kitchen, and before her vassal gave vent to her feelings. "here, ettercap! ye'll have to wait on yon innes! i canna hand myself in. 'puir erchie!' i'd 'puir erchie' him, if i had my way! and hermiston with the deil's ain temper! god, let him take hermiston's scones out of his mouth first. there's no a hair on ayther o' the weirs that hasna mair spunk and dirdum to it than what he has in his hale dwaibly body! settin' up his snash to me! let him gang to the black toon where he's mebbe wantit--birling on a curricle--wi' pimatum on his heid--making a mess o' himsel' wi' nesty hizzies--a fair disgrace!" it was impossible to hear without admiration kirstie's graduated disgust, as she brought forth, one after another, these somewhat baseless charges. then she remembered her immediate purpose, and turned again on her fascinated auditor. "do ye no hear me, tawpie? do ye no hear what i'm tellin' ye? will i have to shoo ye into him? if i come to attend to ye, mistress!" and the maid fled the kitchen, which had become practically dangerous, to attend on innes's wants in the front parlour. _tantaene irae_? has the reader perceived the reason? since frank's coming there were no more hours of gossip over the supper-tray! all his blandishments were in vain; he had started handicapped on the race for mrs. elliott's favour. but it was a strange thing how misfortune dogged him in his efforts to be genial. i must guard the reader against accepting kirstie's epithets as evidence; she was more concerned for their vigour than for their accuracy. dwaibly, for instance; nothing could be more calumnious. frank was the very picture of good looks, good humour, and manly youth. he had bright eyes with a sparkle and a dance to them, curly hair, a charming smile, brilliant teeth, an admirable carriage of the head, the look of a gentleman, the address of one accustomed to please at first sight and to improve the impression. and with all these advantages, he failed with every one about hermiston; with the silent shepherd, with the obsequious grieve, with the groom who was also the ploughman, with the gardener and the gardener's sister--a pious, down-hearted woman with a shawl over her ears--he failed equally and flatly. they did not like him, and they showed it. the little maid, indeed, was an exception; she admired him devoutly, probably dreamed of him in her private hours; but she was accustomed to play the part of silent auditor to kirstie's tirades and silent recipient of kirstie's buffets, and she had learned not only to be a very capable girl of her years, but a very secret and prudent one besides. frank was thus conscious that he had one ally and sympathiser in the midst of that general union of disfavour that surrounded, watched, and waited on him in the house of hermiston; but he had little comfort or society from that alliance, and the demure little maid (twelve on her last birthday) preserved her own counsel, and tripped on his service, brisk, dumbly responsive, but inexorably unconversational. for the others, they were beyond hope and beyond endurance. never had a young apollo been cast among such rustic barbarians. but perhaps the cause of his ill-success lay in one trait which was habitual and unconscious with him, yet diagnostic of the man. it was his practice to approach any one person at the expense of some one else. he offered you an alliance against the some one else; he flattered you by slighting him; you were drawn into a small intrigue against him before you knew how. wonderful are the virtues of this process generally; but frank's mistake was in the choice of the some one else. he was not politic in that; he listened to the voice of irritation. archie had offended him at first by what he had felt to be rather a dry reception, had offended him since by his frequent absences. he was besides the one figure continually present in frank's eye; and it was to his immediate dependants that frank could offer the snare of his sympathy. now the truth is that the weirs, father and son, were surrounded by a posse of strenuous loyalists. of my lord they were vastly proud. it was a distinction in itself to be one of the vassals of the "hanging judge," and his gross, formidable joviality was far from unpopular in the neighbourhood of his home. for archie they had, one and all, a sensitive affection and respect which recoiled from a word of belittlement. nor was frank more successful when he went farther afield. to the four black brothers, for instance, he was antipathetic in the highest degree. hob thought him too light, gib too profane. clem, who saw him but for a day or two before he went to glasgow, wanted to know what the fule's business was, and whether he meant to stay here all session time! "yon's a drone," he pronounced. as for dand, it will be enough to describe their first meeting, when frank had been whipping a river and the rustic celebrity chanced to come along the path. "i'm told you're quite a poet," frank had said. "wha tell't ye that, mannie?" had been the unconciliating answer. "o, everybody!" says frank. "god! here's fame!" said the sardonic poet, and he had passed on his way. come to think of it, we have here perhaps a truer explanation of frank's failures. had he met mr. sheriff scott, he could have turned a neater compliment, because mr. scott would have been a friend worth making. dand, on the other hand, he did not value sixpence, and he showed it even while he tried to flatter. condescension is an excellent thing, but it is strange how one-sided the pleasure of it is! he who goes fishing among the scots peasantry with condescension for a bait will have an empty basket by evening. in proof of this theory frank made a great success of it at the crossmichael club, to which archie took him immediately on his arrival; his own last appearance on that scene of gaiety. frank was made welcome there at once, continued to go regularly, and had attended a meeting (as the members ever after loved to tell) on the evening before his death. young hay and young pringle appeared again. there was another supper at windielaws, another dinner at driffel; and it resulted in frank being taken to the bosom of the county people as unreservedly as he had been repudiated by the country folk. he occupied hermiston after the manner of an invader in a conquered capital. he was perpetually issuing from it, as from a base, to toddy parties, fishing parties, and dinner parties, to which archie was not invited, or to which archie would not go. it was now that the name of the recluse became general for the young man. some say that innes invented it; innes, at least, spread it abroad. "how's all with your recluse to-day?" people would ask. "o, reclusing away!" innes would declare, with his bright air of saying something witty; and immediately interrupt the general laughter which he had provoked much more by his air than his words, "mind you, it's all very well laughing, but i'm not very well pleased. poor archie is a good fellow, an excellent fellow, a fellow i always liked. i think it small of him to take his little disgrace so hard and shut himself up. 'grant that it is a ridiculous story, painfully ridiculous,' i keep telling him. 'be a man! live it down, man!' but not he. of course it's just solitude, and shame, and all that. but i confess i'm beginning to fear the result. it would be all the pities in the world if a really promising fellow like weir was to end ill. i'm seriously tempted to write to lord hermiston, and put it plainly to him." "i would if i were you," some of his auditors would say, shaking the head, sitting bewildered and confused at this new view of the matter, so deftly indicated by a single word. "a capital idea!" they would add, and wonder at the _aplomb_ and position of this young man, who talked as a matter of course of writing to hermiston and correcting him upon his private affairs. and frank would proceed, sweetly confidential: "i'll give you an idea, now. he's actually sore about the way that i'm received and he's left out in the county--actually jealous and sore. i've rallied him and i've reasoned with him, told him that every one was most kindly inclined towards him, told him even that _i_ was received merely because i was his guest. but it's no use. he will neither accept the invitations he gets, nor stop brooding about the ones where he's left out. what i'm afraid of is that the wound's ulcerating. he had always one of those dark, secret, angry natures--a little underhand and plenty of bile--you know the sort. he must have inherited it from the weirs, whom i suspect to have been a worthy family of weavers somewhere; what's the cant phrase?--sedentary occupation. it's precisely the kind of character to go wrong in a false position like what his father's made for him, or he's making for himself, whichever you like to call it. and for my part, i think it a disgrace," frank would say generously. presently the sorrow and anxiety of this disinterested friend took shape. he began in private, in conversations of two, to talk vaguely of bad habits and low habits. "i must say i'm afraid he's going wrong altogether," he would say. "i'll tell you plainly, and between ourselves, i scarcely like to stay there any longer; only, man, i'm positively afraid to leave him alone. you'll see, i shall be blamed for it later on. i'm staying at a great sacrifice. i'm hindering my chances at the bar, and i can't blind my eyes to it. and what i'm afraid of is, that i'm going to get kicked for it all round before all's done. you see, nobody believes in friendship nowadays." "well, innes," his interlocutor would reply, "it's very good of you, i must say that. if there's any blame going, you'll always be sure of _my_ good word, for one thing." "well," frank would continue, "candidly, i don't say it's pleasant. he has a very rough way with him; his father's son, you know. i don't say he's rude--of course, i couldn't be expected to stand that--but he steers very near the wind. no, it's not pleasant; but i tell ye, man, in conscience i don't think it would be fair to leave him. mind you, i don't say there's anything actually wrong. what i say is that i don't like the looks of it, man!" and he would press the arm of his momentary confidant. in the early stages i am persuaded there was no malice. he talked but for the pleasure of airing himself. he was essentially glib, as becomes the young advocate, and essentially careless of the truth, which is the mark of the young ass; and so he talked at random. there was no particular bias, but that one which is indigenous and universal, to flatter himself and to please and interest the present friend. and by thus milling air out of his mouth, he had presently built up a presentation of archie which was known and talked of in all corners of the county. wherever there was a residential house and a walled garden, wherever there was a dwarfish castle and a park, wherever a quadruple cottage by the ruins of a peel-tower showed an old family going down, and wherever a handsome villa with a carriage approach and a shrubbery marked the coming up of a new one--probably on the wheels of machinery--archie began to be regarded in the light of a dark, perhaps a vicious mystery, and the future developments of his career to be looked for with uneasiness and confidential whispering. he had done something disgraceful, my dear. what, was not precisely known, and that good kind young man, mr. innes, did his best to make light of it. but there it was. and mr. innes was very anxious about him now; he was really uneasy, my dear; he was positively wrecking his own prospects because he dared not leave him alone. how wholly we all lie at the mercy of a single prater, not needfully with any malign purpose! and if a man but talks of himself in the right spirit, refers to his virtuous actions by the way, and never applies to them the name of virtue, how easily his evidence is accepted in the court of public opinion! all this while, however, there was a more poisonous ferment at work between the two lads, which came late indeed to the surface, but had modified and magnified their dissensions from the first. to an idle, shallow, easy-going customer like frank, the smell of a mystery was attractive. it gave his mind something to play with, like a new toy to a child; and it took him on the weak side, for like many young men coming to the bar, and before they have been tried and found wanting, he flattered himself he was a fellow of unusual quickness and penetration. they knew nothing of sherlock holmes in those days, but there was a good deal said of talleyrand. and if you could have caught frank off his guard, he would have confessed with a smirk that, if he resembled any one, it was the marquis de talleyrand-périgord. it was on the occasion of archie's first absence that this interest took root. it was vastly deepened when kirstie resented his curiosity at breakfast, and that same afternoon there occurred another scene which clinched the business. he was fishing swingleburn, archie accompanying him, when the latter looked at his watch. "well, good-bye," said he. "i have something to do. see you at dinner." "don't be in such a hurry," cries frank. "hold on till i get my rod up. i'll go with you; i'm sick of flogging this ditch." and he began to reel up his line. archie stood speechless. he took a long while to recover his wits under this direct attack; but by the time he was ready with his answer, and the angle was almost packed up, he had become completely weir, and the hanging face gloomed on his young shoulders. he spoke with a laboured composure, a laboured kindness even; but a child could see that his mind was made up. "i beg your pardon, innes; i don't want to be disagreeable, but let us understand one another from the beginning. when i want your company, i'll let you know." "o!" cries frank, "you don't want my company, don't you?" "apparently not just now," replied archie. "i even indicated to you when i did, if you'll remember--and that was at dinner. if we two fellows are to live together pleasantly--and i see no reason why we should not--it can only be by respecting each other's privacy. if we begin intruding----" "o, come! i'll take this at no man's hands. is this the way you treat a guest and an old friend?" cried innes. "just go home and think over what i said by yourself," continued archie, "whether it's reasonable, or whether it's really offensive or not; and let's meet at dinner as though nothing had happened. i'll put it this way, if you like--that i know my own character, that i'm looking forward (with great pleasure, i assure you) to a long visit from you, and that i'm taking precautions at the first. i see the thing that we--that i, if you like--might fall out upon, and i step in and _obsto principiis_. i wager you five pounds you'll end by seeing that i mean friendliness, and i assure you, francie, i do," he added, relenting. bursting with anger, but incapable of speech, innes shouldered his rod, made a gesture of farewell, and strode off down the burn-side. archie watched him go without moving. he was sorry, but quite unashamed. he hated to be inhospitable, but in one thing he was his father's son. he had a strong sense that his house was his own and no man else's; and to, lie at a guest's mercy was what he refused. he hated to seem harsh. but that was frank's look-out. if frank had been commonly discreet, he would have been decently courteous. and there was another consideration. the secret he was protecting was not his own merely; it was hers: it belonged to that inexpressible she who was fast taking possession of his soul, and whom he would soon have defended at the cost of burning cities. by the time he had watched frank as far as the swingleburnfoot, appearing and disappearing in the tarnished heather, still stalking at a fierce gait, but already dwindled in the distance into less than the smallness of lilliput, he could afford to smile at the occurrence. either frank would go, and that would be a relief--or he would continue to stay, and his host must continue to endure him. and archie was now free--by devious paths, behind hillocks and in the hollow of burns--to make for the trysting-place where kirstie, cried about by the curlew and the plover, waited and burned for his coming by the covenanter's stone. innes went off down-hill in a passion of resentment, easy to be understood, but which yielded progressively to the needs of his situation. he cursed archie for a cold-hearted, unfriendly, rude, rude dog; and himself still more passionately for a fool in having come to hermiston when he might have sought refuge in almost any other house in scotland. but the step, once taken, was practically irretrievable. he had no more ready money to go anywhere else; he would have to borrow from archie the next club-night; and ill as he thought of his host's manners, he was sure of his practical generosity. frank's resemblance to talleyrand strikes me as imaginary; but at least not talleyrand himself could have more obediently taken his lesson from the facts. he met archie at dinner without resentment, almost with cordiality. you must take your friends as you find them, he would have said. archie couldn't help being his father's son, or his grandfather's, the hypothetical weaver's, grandson. the son of a hunks, he was still a hunks at heart, incapable of true generosity and consideration: but he had other qualities with which frank could divert himself in the meanwhile, and to enjoy which it was necessary that frank should keep his temper. so excellently was it controlled that he awoke next morning with his head full of a different, though a cognate subject. what was archie's little game? why did he shun frank's company? what was he keeping secret? was he keeping tryst with somebody, and was it a woman? it would be a good joke and a fair revenge to discover. to that task he set himself with a great deal of patience, which might have surprised his friends, for he had been always credited not with patience so much as brilliancy; and little by little, from one point to another, he at last succeeded in piecing out the situation. first he remarked that, although archie set out in all the directions of the compass, he always came home again from some point between the south and west. from the study of a map, and in consideration of the great expanse of untenanted moorland running in that direction towards the sources of the clyde, he laid his finger on cauldstaneslap and two other neighbouring farms, kingsmuirs and polintarf. but it was difficult to advance farther. with his rod for a pretext, he vainly visited each of them in turn; nothing was to be seen suspicious about this trinity of moorland settlements. he would have tried to follow archie, had it been the least possible, but the nature of the land precluded the idea. he did the next best, ensconced himself in a quiet corner, and pursued his movements with a telescope. it was equally in vain, and he soon wearied of his futile vigilance, left the telescope at home, and had almost given the matter up in despair, when, on the twenty-seventh day of his visit, he was suddenly confronted with the person whom he sought. the first sunday kirstie had managed to stay away from kirk on some pretext of indisposition, which was more truly modesty; the pleasure of beholding archie seeming too sacred, too vivid for that public place. on the two following, frank had himself been absent on some of his excursions among the neighbouring families. it was not until the fourth, accordingly, that frank had occasion to set eyes on the enchantress. with the first look, all hesitation was over. she came with the cauldstaneslap party; then she lived at cauldstaneslap. here was archie's secret, here was the woman, and more than that--though i have need here of every manageable attenuation of language--with the first look, he had already entered himself as rival. it was a good deal in pique, it was a little in revenge, it was much in genuine admiration: the devil may decide the proportions! i cannot, and it is very likely that frank could not. "mighty attractive milkmaid," he observed, on the way home. "who?" said archie. "o, the girl you're looking at--aren't you? forward there on the road. she came attended by the rustic bard; presumably, therefore, belongs to his exalted family. the single objection! for the four black brothers are awkward customers. if anything were to go wrong, gib would gibber, and clem would prove inclement; and dand fly in danders, and hob blow up in gobbets. it would be a helliott of a business!" "very humorous, i am sure," said archie. "well, i am trying to be so," said frank. "it's none too easy in this place, and with your solemn society, my dear fellow. but confess that the milkmaid has found favour in your eyes, or resign all claim to be a man of taste." "it is no matter," returned archie. but the other continued to look at him, steadily and quizzically, and his colour slowly rose and deepened under the glance, until not impudence itself could have denied that he was blushing. and at this archie lost some of his control. he changed his stick from one hand to the other, and--"o, for god's sake, don't be an ass!" he cried. "ass? that's the retort delicate without doubt," says frank. "beware of the home-spun brothers, dear. if they come into the dance, you'll see who's an ass. think now, if they only applied (say) a quarter as much talent as i have applied to the question of what mr. archie does with his evening hours, and why he is so unaffectedly nasty when the subject's touched on----" "you are touching on it now," interrupted archie, with a wince. "thank you. that was all i wanted, an articulate confession," said frank. "i beg to remind you----" began archie. but he was interrupted in turn. "my dear fellow, don't. it's quite needless. the subject's dead and buried." and frank began to talk hastily on other matters, an art in which he was an adept, for it was his gift to be fluent on anything or nothing. but although archie had the grace or the timidity to suffer him to rattle on, he was by no means done with the subject. when he came home to dinner he was greeted with a sly demand, how things were looking "cauldstaneslap ways." frank took his first glass of port out after dinner to the toast of kirstie, and later in the evening he returned to the charge again. "i say, weir, you'll excuse me for returning again to this affair. i've been thinking it over, and i wish to beg you very seriously to be more careful. it's not a safe business. not safe, my boy," said he. "what?" said archie. "well, it's your own fault if i must put a name on the thing; but really, as a friend, i cannot stand by and see you rushing head down into these dangers. my dear boy," said he, holding up a warning cigar, "consider! what is to be the end of it?" "the end of what?"--archie, helpless with irritation, persisted in this dangerous and ungracious guard. "well, the end of the milkmaid; or, to speak more by the card, the end of miss christina elliott of the cauldstaneslap." "i assure you," archie broke out, "this is all a figment of your imagination. there is nothing to be said against that young lady; you have no right to introduce her name into the conversation." "i'll make a note of it," said frank. "she shall henceforth be nameless, nameless, nameless, gregarach! i make a note besides of your valuable testimony to her character. i only want to look at this thing as a man of the world. admitted she's an angel--but, my good fellow, is she a lady?" this was torture to archie. "i beg your pardon," he said, struggling to be composed, "but because you have wormed yourself into my confidence----" "o, come!" cried frank. "your confidence? it was rosy but unconsenting. your confidence, indeed? now, look! this is what i must say, weir, for it concerns your safety and good character, and therefore my honour as your friend. you say i wormed myself into your confidence. wormed is good. but what have i done? i have put two and two together, just as the parish will be doing to-morrow, and the whole of tweeddale in two weeks, and the black brothers--well, i won't put a date on that; it will be a dark and stormy morning! your secret, in other words, is poor poll's. and i want to ask of you as a friend whether you like the prospect? there are two horns to your dilemma, and i must say for myself i should look mighty ruefully on either. do you see yourself explaining to the four black brothers? or do you see yourself presenting the milkmaid to papa as the future lady of hermiston? do you? i tell you plainly, i don't!" archie rose. "i will hear no more of this," he said, in a trembling voice. but frank again held up his cigar. "tell me one thing first. tell me if this is not a friend's part that i am playing?" "i believe you think it so," replied archie. "i can go as far as that. i can do so much justice to your motives. but i will hear no more of it. i am going to bed." "that's right, weir," said frank heartily. "go to bed and think over it; and i say, man, don't forget your prayers! i don't often do the moral--don't go in for that sort of thing--but when i do, there's one thing sure, that i mean it." so archie marched off to bed, and frank sat alone by the table for another hour or so, smiling to himself richly. there was nothing vindictive in his nature; but, if revenge came in his way, it might as well be good, and the thought of archie's pillow reflections that night was indescribably sweet to him. he felt a pleasant sense of power. he looked down on archie as on a very little boy whose strings he pulled--as on a horse whom he had backed and bridled by sheer power of intelligence, and whom he might ride to glory or the grave at pleasure. which was it to be? he lingered long, relishing the details of schemes that he was too idle to pursue. poor cork upon a torrent, he tasted that night the sweets of omnipotence, and brooded like a deity over the strands of that intrigue which was to shatter him before the summer waned. chapter viii a nocturnal visit kirstie had many causes of distress. more and more as we grow old--and yet more and more as we grow old and are women, frozen by the fear of age--we come to rely on the voice as the single outlet of the soul. only thus, in the curtailment of our means, can we relieve the straitened cry of the passion within us; only thus, in the bitter and sensitive shyness of advancing years, can we maintain relations with those vivacious figures of the young that still show before us and tend daily to become no more than the moving wall-paper of life. talk is the last link, the last relation. but with the end of the conversation, when the voice stops and the bright face of the listener is turned away, solitude falls again on the bruised heart. kirstie had lost her "cannie hour at e'en"; she could no more wander with archie, a ghost if you will, but a happy ghost, in fields elysian. and to her it was as if the whole world had fallen silent; to him, but an unremarkable change of amusements. and she raged to know it. the effervescency of her passionate and irritable nature rose within her at times to bursting point. this is the price paid by age for unseasonable ardours of feeling. it must have been so for kirstie at any time when the occasion chanced; but it so fell out that she was deprived of this delight in the hour when she had most need of it, when she had most to say, most to ask, and when she trembled to recognise her sovereignty not merely in abeyance but annulled. for, with the clairvoyance of a genuine love, she had pierced the mystery that had so long embarrassed frank. she was conscious, even before it was carried out, even on that sunday night when it began, of an invasion of her rights; and a voice told her the invader's name. since then, by arts, by accident, by small things observed, and by the general drift of archie's humour, she had passed beyond all possibility of doubt. with a sense of justice that lord hermiston might have envied, she had that day in church considered and admitted the attractions of the younger kirstie; and with the profound humanity and sentimentality of her nature, she had recognised the coming of fate. not thus would she have chosen. she had seen, in imagination, archie wedded to some tall, powerful, and rosy heroine of the golden locks, made in her own image, for whom she would have strewed the bride-bed with delight; and now she could have wept to see the ambition falsified. but the gods had pronounced, and her doom was otherwise. she lay tossing in bed that night, besieged with feverish thoughts. there were dangerous matters pending, a battle was toward, over the fate of which she hung in jealousy, sympathy, fear, and alternate loyalty and disloyalty to either side. now she was reincarnated in her niece, and now in archie. now she saw, through the girl's eyes, the youth on his knees to her, heard his persuasive instances with a deadly weakness, and received his overmastering caresses. anon, with a revulsion, her temper raged to see such utmost favours of fortune and love squandered on a brat of a girl, one of her own house, using her own name--a deadly ingredient--and that "didna ken her ain mind an' was as black's your hat." now she trembled lest her deity should plead in vain, loving the idea of success for him like a triumph of nature; anon, with returning loyalty to her own family and sex, she trembled for kirstie and the credit of the elliotts. and again she had a vision of herself, the day over for her old-world tales and local gossip, bidding farewell to her last link with life and brightness and love; and behind and beyond, she saw but the blank butt-end where she must crawl to die. had she then come to the lees? she, so great, so beautiful, with a heart as fresh as a girl's and strong as womanhood? it could not be, and yet it was so; and for a moment her bed was horrible to her as the sides of the grave. and she looked forward over a waste of hours, and saw herself go on to rage, and tremble, and be softened, and rage again, until the day came and the labours of the day must be renewed. suddenly she heard feet on the stairs--his feet, and soon after the sound of a window-sash flung open. she sat up with her heart beating. he had gone to his room alone, and he had not gone to bed. she might again have one of her night cracks; and at the entrancing prospect, a change came over her mind; with the approach of this hope of pleasure, all the baser metal became immediately obliterated from her thoughts. she rose, all woman, and all the best of woman, tender, pitiful, hating the wrong, loyal to her own sex--and all the weakest of that dear miscellany, nourishing, cherishing next her soft heart, voicelessly flattering, hopes that she would have died sooner than have acknowledged. she tore off her nightcap, and her hair fell about her shoulders in profusion. undying coquetry awoke. by the faint light of her nocturnal rush, she stood before the looking-glass, carried her shapely arms above her head, and gathered up the treasures of her tresses. she was never backward to admire herself; that kind of modesty was a stranger to her nature; and she paused, struck with a pleased wonder at the sight. "ye daft auld wife!" she said, answering a thought that was not; and she blushed with the innocent consciousness of a child. hastily she did up the massive and shining coils, hastily donned a wrapper, and with the rushlight in her hand, stole into the hall. below stairs she heard the clock ticking the deliberate seconds, and frank jingling with the decanters in the dining-room. aversion rose in her, bitter and momentary. "nesty tippling puggy!" she thought; and the next moment she had knocked guardedly at archie's door and was bidden enter. archie had been looking out into the ancient blackness, pierced here and there with a rayless star; taking the sweet air of the moors and the night into his bosom deeply; seeking, perhaps finding, peace after the manner of the unhappy. he turned round as she came in, and showed her a pale face against the window-frame. "is that you, kirstie?" he asked. "come in!" "it's unco late, my dear," said kirstie, affecting unwillingness. "no, no," he answered, "not at all. come in, if you want a crack. i am not sleepy, god knows!" she advanced, took a chair by the toilet-table and the candle, and set the rushlight at her foot. something--it might be in the comparative disorder of her dress, it might be the emotion that now welled in her bosom--had touched her with a wand of transformation, and she seemed young with the youth of goddesses. "mr. erchie," she began, "what's this that's come to ye?" "i am not aware of anything that has come," said archie, and blushed, and repented bitterly that he had let her in. "o, my dear, that'll no dae!" said kirstie. "it's ill to blend the eyes of love. o, mr. erchie, tak' a thocht ere it's ower late. ye shouldna be impatient o' the braws o' life, they'll a' come in their saison, like the sun and the rain. ye're young yet; ye've mony cantie years afore ye. see and dinna wreck yersel' at the outset like sae mony ithers! hae patience--they telled me aye that was the owercome o' life--hae patience, there's a braw day coming yet. gude kens it never cam' to me; and here i am, wi' nayther man nor bairn to ca' my ain, wearying a' folks wi' my ill tongue, and you just the first, mr. erchie!" "i have a difficulty in knowing what you mean," said archie. "weel, and i'll tell ye," she said. "it's just this, that i'm feared. i'm feared for ye, my dear. remember, your faither is a hard man, reaping where he hasna sowed and gaithering where he hasna strawed. it's easy speakin', but mind! ye'll have to look in the gurley face o'm, where it's ill to look, and vain to look for mercy. ye mind me o' a bonny ship pitten oot into the black and gowsty seas--ye're a' safe still, sittin' quait and crackin' wi' kirstie in your lown chalmer; but whaur will ye be the morn, and in whatten horror o' the fearsome tempest, cryin' on the hills to cover ye?" "why, kirstie, you're very enigmatical to-night--and very eloquent," archie put in. "and, my dear mr. erchie," she continued, with a change of voice, "ye maunna think that i canna sympathise wi' ye. ye maunna think that i havena been young mysel'. lang syne, when i was a bit lassie, no twenty yet----" she paused and sighed. "clean and caller, wi' a fit like the hinney bee," she continued. "i was aye big and buirdly, ye maun understand; a bonny figure o' a woman, though i say it that suldna--built to rear bairns--braw bairns they suld hae been, and grand i would hae likit it! but i was young, dear, wi' the bonny glint o' youth in my e'en, and little i dreamed i'd ever be tellin' ye this, an auld, lanely, rudas wife! weel, mr. erchie, there was a lad cam' courtin' me, as was but naetural. mony had come before, and i would nane o' them. but this yin had a tongue to wile the birds frae the lift and the bees frae the foxglove bells. deary me, but it's lang syne. folk have dee'd sinsyne and been buried, and are forgotten, and bairns been born and got merrit and got bairns o' their ain. sinsyne woods have been plantit, and have grawn up and are bonny trees, and the joes sit in their shadow; and sinsyne auld estates have changed hands, and there have been wars and rumours of wars on the face of the earth. and here i'm still--like an auld droopit craw--lookin' on and craikin'! but, mr. erchie, do ye no think that i have mind o' it a' still? i was dwalling then in my faither's house; and it's a curious thing that we were whiles trysted in the deil's hags. and do ye no think that i have mind of the bonny simmer days, the lang miles o' the bluid-red heather, the cryin' o' the whaups, and the lad and the lassie that was trysted? do ye no think that i mind how the hilly sweetness ran about my hairt? ay, mr. erchie, i ken the way o' it--fine do i ken the way--how the grace o' god takes them, like paul of tarsus, when they think it least, and drives the pair o' them into a land which is like a dream, and the world and the folks in 't are nae mair than clouds to the puir lassie, and heeven nae mair than windle-straes, if she can but pleesure him! until tam dee'd--that was my story," she broke off to say, "he dee'd, and i wasna at the buryin'. but while he was here, i could take care o' mysel'. and can yon puir lassie?" kirstie, her eyes shining with unshed tears, stretched out her hand towards him appealingly; the bright and the dull gold of her hair flashed and smouldered in the coils behind her comely head, like the rays of an eternal youth; the pure colour had risen in her face; and archie was abashed alike by her beauty and her story. he came towards her slowly from the window, took up her hand in his and kissed it. "kirstie," he said hoarsely, "you have misjudged me sorely. i have always thought of her, i wouldna harm her for the universe, my woman!" "eh, lad, and that's easy sayin'," cried kirstie, "but it's nane sae easy doin'! man, do ye no comprehend that it's god's wull we should be blendit and glamoured, and have nae command over our ain members at a time like that? my bairn," she cried, still holding his hand, "think o' the puir lass! have pity upon her, erchie! and o, be wise for twa! think o' the risk she rins! i have seen ye, and what's to prevent ithers? i saw ye once in the hags, in my ain howf, and i was wae to see ye there--in pairt for the omen, for i think there's a weird on the place--and in pairt for pure nakit envy and bitterness o' hairt. it's strange ye should forgather there tae! god! but yon puir, thrawn, auld covenanter's seen a heap o' human natur' since he lookit his last on the musket-barrels, if he never saw nane afore," she added, with a kind of wonder in her eyes. "i swear by my honour i have done her no wrong," said archie. "i swear by my honour and the redemption of my soul that there shall none be done her. i have heard of this before. i have been foolish, kirstie, but not unkind, and, above all, not base." "there's my bairn!" said kirstie, rising. "i'll can trust ye noo, i'll can gang to my bed wi' an easy hairt." and then she saw in a flash how barren had been her triumph. archie had promised to spare the girl, and he would keep it; but who had promised to spare archie? what was to be the end of it? over a maze of difficulties she glanced, and saw, at the end of every passage, the flinty countenance of hermiston. and a kind of horror fell upon her at what she had done. she wore a tragic mask. "erchie, the lord peety you dear, and peety me! i have buildit on this foundation"--laying her hand heavily on his shoulder--"and buildit hie, and pit my hairt in the buildin' of it. if the hale hypothec were to fa', i think, laddie, i would dee! excuse a daft wife that loves ye, and that kenned your mither. and for his name's sake keep yersel' frae inordinate desires; hand your heart in baith your hands, carry it canny and laigh; dinna send it up like a bairn's kite into the collieshangie o' the wunds! mind, maister erchie dear, that this life's a' disappointment, and a mouthfu' o' mools is the appointed end." "ay, but kirstie, my woman, you're asking me ower much at last," said archie, profoundly moved, and lapsing into the broad scots. "ye're asking what nae man can grant ye, what only the lord of heaven can grant ye if he see fit. ay! and can even he? i can promise ye what i shall do, and you can depend on that. but how i shall feel--my woman, that is long past thinking of!" they were both standing by now opposite each other. the face of archie wore the wretched semblance of a smile; hers was convulsed for a moment. "promise me ae thing," she cried, in a sharp voice. "promise me ye'll never do naething without telling me." "no, kirstie, i canna promise ye that," he replied. "i have promised enough, god kens!" "may the blessing of god lift and rest upon ye, dear!" she said. "god bless ye, my old friend," said he. chapter ix at the weaver's stone it was late in the afternoon when archie drew near by the hill path to the praying weaver's stone. the hags were in shadow. but still, through the gate of the slap, the sun shot a last arrow, which sped far and straight across the surface of the moss, here and there touching and shining on a tussock, and lighted at length on the gravestone and the small figure awaiting him there. the emptiness and solitude of the great moors seemed to be concentred there, and kirstie pointed out by that finger of sunshine for the only inhabitant. his first sight of her was thus excruciatingly sad, like a glimpse of a world from which all light, comfort, and society were on the point of vanishing. and the next moment, when she had turned her face to him and the quick smile had enlightened it, the whole face of nature smiled upon him in her smile of welcome. archie's slow pace was quickened; his legs hasted to her though his heart was hanging back. the girl, upon her side, drew herself together slowly and stood up, expectant; she was all languor, her face was gone white; her arms ached for him, her soul was on tip-toes. but he deceived her, pausing a few steps away, not less white than herself, and holding up his hand with a gesture of denial. "no, christina, not to-day," he said. "to-day i have to talk to you seriously. sit ye down, please, there where you were. please!" he repeated. the revulsion of feeling in christina's heart was violent. to have longed and waited these weary hours for him, rehearsing her endearments--to have seen him at last come--to have been ready there, breathless, wholly passive, his to do what he would with--and suddenly to have found herself confronted with a grey-faced, harsh schoolmaster--it was too rude a shock. she could have wept, but pride withheld her. she sat down on the stone, from which she had arisen, part with the instinct of obedience, part as though she had been thrust there. what was this? why was she rejected? had she ceased to please? she stood here offering her wares, and he would none of them! and yet they were all his! his to take and keep, not his to refuse though! in her quick petulant nature, a moment ago on fire with hope, thwarted love and wounded vanity wrought. the schoolmaster that there is in all men, to the despair of all girls and most women, was now completely in possession of archie. he had passed a night of sermons, a day of reflection; he had come wound up to do his duty; and the set mouth, which in him only betrayed the effort of his will, to her seemed the expression of an averted heart. it was the same with his constrained voice and embarrassed utterance; and if so--if it was all over--the pang of the thought took away from her the power of thinking. he stood before her some way off. "kirstie, there's been too much of this. we've seen too much of each other." she looked up quickly and her eyes contracted. "there's no good ever comes of these secret meetings. they're not frank, not honest truly, and i ought to have seen it. people have begun to talk; and it's not right of me. do you see?" "i see somebody will have been talking to ye," she said sullenly. "they have--more than one of them," replied archie. "and whae were they?" she cried. "and what kind o' love do ye ca' that, that's ready to gang round like a whirligig at folk talking? do ye think they havena talked to me?" "have they indeed?" said archie, with a quick breath. "that is what i feared. who were they? who has dare----?" archie was on the point of losing his temper. as a matter of fact, not any one had talked to christina on the matter; and she strenuously repeated her own first question in a panic of self-defence. "ah, well! what does it matter?" he said. "they were good folk that wished well to us, and the great affair is that there are people talking. my dear girl, we have to be wise. we must not wreck our lives at the outset. they may be long and happy yet, and we must see to it, kirstie, like god's rational creatures and not like fool children. there is one thing we must see to before all. you're worth waiting for, kirstie! worth waiting for a generation; it would be enough reward."--and here he remembered the schoolmaster again, and very unwisely took to following wisdom. "the first thing that we must see to is that there shall be no scandal about for my father's sake. that would ruin all; do ye no see that?" kirstie was a little pleased, there had been some show of warmth of sentiment in what archie had said last. but the dull irritation still persisted in her bosom; with the aboriginal instinct, having suffered herself, she wished to make archie suffer. and besides, there had come out the word she had always feared to hear from his lips, the name of his father. it is not to be supposed that, during so many days with a love avowed between them, some reference had not been made to their conjoint future. it had in fact been often touched upon, and from the first had been the sore point. kirstie had wilfully closed the eye of thought; she would not argue even with herself; gallant, desperate little heart, she had accepted the command of that supreme attraction like the call of fate, and marched blindfold on her doom. but archie, with his masculine sense of responsibility, must reason; he must dwell on some future good, when the present good was all in all to kirstie; he must talk--and talk lamely, as necessity drove him--of what was to be. again and again he had touched on marriage; again and again been driven back into indistinctness by a memory of lord hermiston. and kirstie had been swift to understand and quick to choke down and smother the understanding; swift to leap up in flame at a mention of that hope, which spoke volumes to her vanity and her love, that she might one day be mrs. weir of hermiston; swift, also, to recognise in his stumbling or throttled utterance the death-knell of these expectations, and constant, poor girl! in her large-minded madness, to go on and to reck nothing of the future. but these unfinished references, these blinks in which his heart spoke, and his memory and reason rose up to silence it before the words were well uttered, gave her unqualifiable agony. she was raised up and dashed down again bleeding. the recurrence of the subject forced her, for however short a time, to open her eyes on what she did not wish to see; and it had invariably ended in another disappointment. so now again, at the mere wind of its coming, at the mere mention of his father's name--who might seem indeed to have accompanied them in their whole moorland courtship, an awful figure in a wig with an ironical and bitter smile, present to guilty consciousness--she fled from it head down. "ye havena told me yet," she said, "who was it spoke?" "your aunt for one," said archie. "auntie kirstie?" she cried. "and what do i care for my auntie kirstie?" "she cares a great deal for her niece," replied archie, in kind reproof. "troth, and it's the first i've heard of it," retorted the girl. "the question here is not who it is, but what they say, what they have noticed," pursued the lucid schoolmaster. "that is what we have to think of in self-defence." "auntie kirstie, indeed! a bitter, thrawn auld maid that's fomented trouble in the country before i was born, and will be doing it still, i daur say, when i'm deid! it's in her nature; it's as natural for her as it's for a sheep to eat." "pardon me, kirstie, she was not the only one," interposed archie. "i had two warnings, two sermons, last night, both most kind and considerate. had you been there, i promise you you would have grat, my dear! and they opened my eyes. i saw we were going a wrong way." "who was the other one?" kirstie demanded. by this time archie was in the condition of a hunted beast. he had come, braced and resolute; he was to trace out a line of conduct for the pair of them in a few cold, convincing sentences; he had now been there some time, and he was still staggering round the outworks and undergoing what he felt to be a savage cross-examination. "mr. frank!" she cried. "what nex', i would like to ken?" "he spoke most kindly and truly." "what like did he say?" "i am not going to tell you; you have nothing to do with that," cried archie, startled to find he had admitted so much. "o, i have naething to do with it!" she repeated, springing to her feet. "a'body at hermiston's free to pass their opinions upon me, but i have naething to do wi' it! was this at prayers like? did ye ca' the grieve into the consultation? little wonder if a'body's talking, when ye make a'body yer confidants! but as you say, mr. weir, most kindly, most considerately, most truly, i'm sure--i have naething to do with it. and i think i'll better be going. i'll be wishing you good evening, mr. weir." and she made him a stately curtsey, shaking as she did so from head to foot, with the barren ecstasy of temper. poor archie stood dumbfounded. she had moved some steps away from him before he recovered the gift of articulate speech. "kirstie!" he cried. "o, kirstie woman!" there was in his voice a ring of appeal, a clang of mere astonishment that showed the schoolmaster was vanquished. she turned round on him. "what do ye kirstie me for?" she retorted. "what have ye to do wi' me? gang to your ain freends and deave them!" he could only repeat the appealing "kirstie!" "kirstie, indeed!" cried the girl, her eyes blazing in her white face. "my name is miss christina elliott, i would have ye to ken, and i daur ye to ca' me out of it. if i canna get love, i'll have respect, mr. weir. i'm come of decent people, and i'll have respect. what have i done that ye should lightly me? what have i done? what have i done? o, what have i done?" and her voice rose upon the third repetition. "i thocht--i thocht--i thocht i was sae happy!" and the first sob broke from her like the paroxysm of some mortal sickness. archie ran to her. he took the poor child in his arms, and she nestled to his breast as to a mother's, and clasped him in hands that were strong like vices. he felt her whole body shaken by the throes of distress, and had pity upon her beyond speech. pity, and at the same time a bewildered fear of this explosive engine in his arms, whose works he did not understand, and yet had been tampering with. there arose from before him the curtains of boyhood, and he saw for the first time the ambiguous face of woman as she is. in vain he looked back over the interview; he saw not where he had offended. it seemed unprovoked, a wilful convulsion of brute nature.... sir sidney colvin's note with the words last printed, "a wilful convulsion of brute nature," the romance of "weir of hermiston" breaks off. they were dictated, i believe, on the very morning of the writer's sudden seizure and death. "weir of hermiston" thus remains in the work of stevenson what "edwin drood" is in the work of dickens or "denis duval" in that of thackeray: or rather it remains relatively more, for if each of those fragments holds an honourable place among its author's writings, among stevenson's the fragment of "weir" holds, at least to my mind, certainly the highest. readers may be divided in opinion on the question whether they would or they would not wish to hear more of the intended course of the story and destinies of the characters. to some, silence may seem best, and that the mind should be left to its own conjectures as to the sequel, with the help of such indications as the text affords. i confess that this is the view which has my sympathy. but since others, and those almost certainly a majority, are anxious to be told all they can, and since editors and publishers join in the request, i can scarce do otherwise than comply. the intended argument, then, so far as it was known at the time of the writer's death to his step-daughter and devoted amanuensis, mrs. strong, was nearly as follows:-- * * * * * archie persists in his good resolution of avoiding further conduct compromising to young kirstie's good name. taking advantage of the situation thus created, and of the girl's unhappiness and wounded vanity, frank innes pursues his purpose of seduction; and kirstie, though still caring for archie in her heart, allows herself to become frank's victim. old kirstie is the first to perceive something amiss with her, and believing archie to be the culprit, accuses him, thus making him aware for the first time that mischief has happened. he does not at once deny the charge, but seeks out and questions young kirstie, who confesses the truth to him; and he, still loving her, promises to protect and defend her in her trouble. he then has an interview with frank innes on the moor, which ends in a quarrel, and in archie killing frank beside the weaver's stone. meanwhile the four black brothers, having become aware of their sister's betrayal, are bent on vengeance against archie as her supposed seducer. but their vengeance is forestalled by his arrest for the murder of frank. he is tried before his own father, the lord justice-clerk, found guilty, and condemned to death. meanwhile the elder kirstie, having discovered from the girl how matters really stand, informs her nephews of the truth; and they, in a great revulsion of feeling in archie's favour, determine on an action after the ancient manner of their house. they gather a following, and after a great fight break the prison where archie lies confined, and rescue him. he and young kirstie thereafter escape to america. but the ordeal of taking part in the trial of his own son has been too much for the lord justice-clerk, who dies of the shock. "i do not know," adds the amanuensis, "what becomes of old kirstie, but that character grew and strengthened so in the writing that i am sure he had some dramatic destiny for her." * * * * * the plan of every imaginative work is subject, of course, to change under the artist's hand as he carries it out; and not merely the character of the elder kirstie, but other elements of the design no less, might well have deviated from the lines originally traced. it seems certain, however, that the next stage in the relations of archie and the younger kirstie would have been as above foreshadowed; and this conception of the lover's unconventional chivalry and unshaken devotion to his mistress after her fault is very characteristic of the writer's mind. the vengeance to be taken on the seducer beside the weaver's stone is prepared for in the first words of the introduction; and in the spring of the author rehearsed in conversation with a visitor (mr. sidney lysaght) a scene where the girl was to confess to her lover in prison that she was with child by the man he had killed. the situation and fate of the judge, confronting like a brutus, but unable to survive, the duty of sending his own son to the gallows, seem clearly to have been destined to furnish the climax and essential tragedy of the tale. how this last circumstance was to have been brought about, within the limits of legal usage and possibility, seems hard to conjecture; but it was a point to which the author had evidently given careful consideration. mrs. strong says simply that the lord justice-clerk, like an old roman, condemns his son to death; but i am assured on the best legal authority of scotland that no judge, however powerful either by character or office, could have insisted on presiding at the trial of a near kinsman of his own. the lord justice-clerk was head of the criminal justiciary of the country; he might have insisted on his right of being present on the bench when his son was tried; but he would never have been allowed to preside or to pass sentence. now in a letter of stevenson's to mr. baxter, of october , i find him asking for materials in terms which seem to indicate that he knew this quite well:--"i wish pitcairn's 'criminal trials,' _quam primum_. also an absolutely correct text of the scots judiciary oath. also, in case pitcairn does not come down late enough, i wish as full a report as possible of a scots murder trial between - . understand, _the fullest possible_. is there any book which would guide me to the following facts? the justice-clerk tries some people capitally on circuit. certain evidence cropping up, the charge is transferred to the justice-clerk's own son. of course in the next trial the justice-clerk is excluded, and the case is called before the lord justice-general. where would this trial have to be? i fear in edinburgh, which would not suit my view. could it be again at the circuit town?" the point was referred to a quondam fellow-member with stevenson of the edinburgh speculative society, mr. graham murray, the present lord advocate for scotland, whose reply was to the effect that there would be no difficulty in making the new trial take place at the circuit town; that it would have to be held there in spring or autumn, before two lords of justiciary; and that the lord justice-general would have nothing to do with it, this title being at the date in question only a nominal one held by a layman (which is no longer the case). on this stevenson writes, "graham murray's note _re_ the venue was highly satisfactory, and did me all the good in the world." the terms of his inquiry imply clearly that he intended other persons before archie to have fallen under suspicion of the murder (what other persons?); and also--doubtless in order to make the rescue by the black brothers possible--that he wanted archie to be imprisoned not in edinburgh but in the circuit town. can it have been that lord hermiston's part was to have been limited to presiding at the _first_ trial, where the persons wrongly suspected were to have been judged, and to directing that the law should take its course when evidence incriminating his own son was unexpectedly brought forward? whether the final escape and union of archie and christina would have proved equally essential to the plot may perhaps to most readers seem questionable. they may rather feel that a tragic destiny is foreshadowed from the beginning for all concerned, and is inherent in the very conditions of the tale. but on this point, and other matters of general criticism connected with it, i find an interesting discussion by the author himself in his correspondence. writing to mr. j. m. barrie, under date november , , and criticising that author's famous story of "the little minister," stevenson says:-- "your descriptions of your dealings with lord rintoul are frightfully unconscientious.... 'the little minister' ought to have ended badly; we all know it _did_, and we are infinitely grateful to you for the grace and good feeling with which you have lied about it. if you had told the truth, i for one could never have forgiven you. as you had conceived and written the earlier parts, the truth about the end, though indisputably true to fact, would have been a lie, or what is worse, a discord, in art. if you are going to make a book end badly, it must end badly from the beginning. now, your book began to end well. you let yourself fall in love with, and fondle, and smile at your puppets. once you had done that, your honour was committed: at the cost of truth to life you were bound to save them. it is the blot on 'richard feverel,' for instance, that it begins to end well; and then tricks you and ends ill. but in this case, there is worse behind, for the ill ending does not inherently issue from the plot--the story had, in fact, ended well after the great last interview between richard and lucy--and the blind, illogical bullet which smashes all has no more to do between the boards than a fly has to do with a room into whose open window it comes buzzing. it might have so happened; it needed not; and unless needs must, we have no right to pain our readers. i have had a heavy case of conscience of the same kind about my braxfield story. braxfield--only his name is hermiston--has a son who is condemned to death; plainly there is a fine tempting fitness about this; and i meant he was to hang. but on considering my minor characters, i saw there were five people who would--in a sense, who must--break prison and attempt his rescue. they are capable hardy folks too, who might very well succeed. why should they not then? why should not young hermiston escape clear out of the country? and be happy, if he could, with his--but soft! i will not betray my secret nor my heroine...." to pass, now, from the question how the story would have ended to the question how it originated and grew in the writer's mind. the character of the hero, weir of hermiston, is avowedly suggested by the historical personality of robert macqueen, lord braxfield. this famous judge has been for generations the subject of a hundred edinburgh tales and anecdotes. readers of stevenson's essay on the raeburn exhibition, in "virginibus puerisque," will remember how he is fascinated by raeburn's portrait of braxfield, even as lockhart had been fascinated by a different portrait of the same worthy sixty years before (see "peter's letters to his kinsfolk"); nor did his interest in the character diminish in later life. again, the case of a judge involved by the exigencies of his office in a strong conflict between public duty and private interest or affection, was one which had always attracted and exercised stevenson's imagination. in the days when he and mr. henley were collaborating with a view to the stage, mr. henley once proposed a plot founded on the story of mr. justice harbottle in sheridan le fanu's "in a glass darkly," in which the wicked judge goes headlong _per fas et nefas_ to his object of getting the husband of his mistress hanged. some time later stevenson and his wife together drafted a play called _the hanging judge_. in this, the title character is tempted for the first time in his life to tamper with the course of justice, in order to shield his wife from persecution by a former husband who reappears after being supposed dead. bulwer's novel of "paul clifford," with its final situation of the worldly-minded judge, sir william brandon, learning that the highwayman whom he is in the act of sentencing is his own son, and dying of the knowledge, was also well known to stevenson, and probably counted for something in the suggestion of the present story. once more, the difficulties often attending the relation of father and son in actual life had pressed heavily on stevenson's mind and conscience from the days of his youth, when in obeying the law of his own nature he had been constrained to disappoint, distress, and for a time to be much misunderstood by, a father whom he justly loved and admired with all his heart. difficulties of this kind he had already handled in a lighter vein once or twice in fiction--as for instance in "the story of a lie," "the misadventures of john nicholson," and "the wrecker"--before he grappled with them in the acute and tragic phase in which they occur in the present story. these three elements, then, the interest of the historical personality of lord braxfield, the problems and emotions arising from a violent conflict between duty and nature in a judge, and the difficulties due to incompatibility and misunderstanding between father and son, lie at the foundations of the present story. to touch on minor matters, it is perhaps worth notice, as mr. henley reminds me, that the name of weir had from of old a special significance for stevenson's imagination, from the horrible and true tale of the burning in edinburgh of major weir, the warlock, and his sister. another name, that of the episodical personage of mr. torrance the minister, is borrowed direct from life, as indeed are the whole figure and its surroundings--kirkyard, kirk, and manse--down even to the black thread mittens: witness the following passage from a letter of the early seventies:--"i've been to church and am not depressed--a great step. it was at that beautiful church" [of glencorse in the pentlands, three miles from his father's country house at swanston]. "it is a little cruciform place, with a steep slate roof. the small kirkyard is full of old gravestones; one of a frenchman from dunkerque, i suppose he died prisoner in the military prison hard by. and one, the most pathetic memorial i ever saw: a poor school-slate, in a wooden frame, with the inscription cut into it evidently by the father's own hand. in church, old mr. torrance preached, over eighty and a relic of times forgotten, with his black thread gloves and mild old face." a side hint for a particular trait in the character of mrs. weir we can trace in some family traditions concerning the writer's own grandmother, who is reported to have valued piety much more than efficiency in her domestic servants. i know of no original for that new and admirable incarnation of the eternal feminine in the elder kirstie. the little that stevenson says about her himself is in a letter written a few days before his death to mr. gosse. the allusions are to the various views and attitudes of people in regard to middle age, and are suggested by mr. gosse's volume of poems, "in russet and silver." "it seems rather funny," he writes, "that this matter should come up just now, as i am at present engaged in treating a severe case of middle age in one of my stories, 'the justice-clerk.' the case is that of a woman, and i think i am doing her justice. you will be interested, i believe, to see the difference in our treatments. 'secreta vitae' [the title of one of mr. gosse's poems] comes nearer to the case of my poor kirstie." from the quality of the midnight scene between her and archie, we may judge what we have lost in those later scenes where she was to have taxed him with the fault that was not his--to have presently learned his innocence from the lips of his supposed victim--to have then vindicated him to her kinsmen and fired them to the action of his rescue. the scene of the prison-breaking here planned by stevenson would have gained interest (as will already have occurred to readers) from comparison with the two famous precedents in scott, the porteous mob and the breaking of portanferry gaol. the best account of stevenson's methods of imaginative work is in the following sentences from a letter of his own to mr. w. craibe angus of glasgow:--"i am still 'a slow study,' and sit for a long while silent on my eggs. unconscious thought, there is the only method: macerate your subject, let it boil slow, then take the lid off and look in--and there your stuff is--good or bad." the several elements above noted having been left to work for many years in his mind, it was in the autumn of that he was moved to "take the lid off and look in,"--under the influence, it would seem, of a special and overmastering wave of that feeling for the romance of scottish scenery and character which was at all times so strong in him, and which his exile did so much to intensify. i quote again from his letter to mr. barrie on november st in that year:--"it is a singular thing that i should live here in the south seas under conditions so new and so striking, and yet my imagination so continually inhabit the cold old huddle of grey hills from which we come. i have finished 'david balfour,' i have another book on the stocks, 'the young chevalier,' which is to be part in france and part in scotland, and to deal with prince charlie about the year ; and now what have i done but begun a third, which is to be all moorland together, and is to have for a centre-piece a figure that i think you will appreciate--that of the immortal braxfield. braxfield himself is my grand premier--or since you are so much involved in the british drama, let me say my heavy lead." writing to me at the same date he makes the same announcement more briefly, with a list of the characters and an indication of the scene and date of the story. to mr. baxter he writes a month later, "i have a novel on the stocks to be called 'the justice-clerk.' it is pretty scotch; the grand premier is taken from braxfield (o, by the by, send me cockburn's 'memorials'), and some of the story is, well, queer. the heroine is seduced by one man, and finally disappears with the other man who shot him.... mind you, i expect 'the justice-clerk' to be my masterpiece. my braxfield is already a thing of beauty and a joy for ever, and so far as he has gone far my best character." from the last extract it appears that he had already at this date drafted some of the earlier chapters of the book. he also about the same time composed the dedication to his wife, who found it pinned to her bed-curtains one morning on awaking. it was always his habit to keep several books in progress at the same time, turning from one to another as the fancy took him, and finding relief in the change of labour; and for many months after the date of this letter, first illness,--then a voyage to auckland,--then work on "the ebb-tide," on a new tale called "st. ives," which was begun during an attack of influenza, and on his projected book of family history,--prevented his making any continuous progress with "weir." in august he says he has been recasting the beginning. a year later, still only the first four or five chapters had been drafted. then, in the last weeks of his life, he attacked the task again, in a sudden heat of inspiration, and worked at it ardently and without interruption until the end came. no wonder if during these weeks he was sometimes aware of a tension of the spirit difficult to sustain. "how can i keep this pitch?" he is reported to have said after finishing one of the chapters; and all the world knows how that frail organism, overtaxed so long, in fact betrayed him in mid effort. with reference to the speech and manners of the hanging judge himself: that they are not a whit exaggerated, in comparison with what is recorded of his historic prototype, lord braxfield, is certain. the _locus classicus_ in regard to this personage is in lord cockburn's "memorials of his time." "strong built and dark, with rough eyebrows, powerful eyes, threatening lips, and a low growling voice, he was like a formidable blacksmith. his accent and dialect were exaggerated scotch; his language, like his thoughts, short, strong, and conclusive. illiterate and without any taste for any refined enjoyment, strength of understanding, which gave him power without cultivation, only encouraged him to a more contemptuous disdain of all natures less coarse than his own. it may be doubted if he was ever so much in his element as when tauntingly repelling the last despairing claim of a wretched culprit, and sending him to botany bay or the gallows with an insulting jest. yet this was not from cruelty, for which he was too strong and too jovial, but from cherished coarseness." readers, nevertheless, who are at all acquainted with the social history of scotland will hardly have failed to make the observation that braxfield's is an extreme case of eighteenth-century manners, as he himself was an eighteenth-century personage (he died in , in his seventy-eighth year); and that for the date in which the story is cast ( ) such manners are somewhat of an anachronism. during the generation contemporary with the french revolution and the napoleonic wars--or, to put it another way, the generation that elapsed between the days when scott roamed the country as a high school and university student and those when he settled in the fulness of fame and prosperity at abbotsford,--or again (the allusions will appeal to readers of the admirable galt) during the interval between the first and the last provostry of bailie pawkie in the borough of gudetown, or between the earlier and final ministrations of mr. balwhidder in the parish of dalmailing,--during this period a great softening had taken place in scottish manners generally, and in those of the bar and bench not least. "since the death of lord justice-clerk macqueen of braxfield," says lockhart, writing about , "the whole exterior of judicial deportment has been quite altered." a similar criticism may probably hold good on the picture of border life contained in the chapter concerning the four black brothers of cauldstaneslap, namely, that it rather suggests the ways of an earlier generation; nor have i any clue to the reasons which led stevenson to choose this particular date, in the year preceding waterloo, for a story which, in regard to some of its features at least, might seem more naturally placed some quarter or even half a century earlier. if the reader seeks, further, to know whether the scenery of hermiston can be identified with any one special place familiar to the writer's early experience, the answer, i think, must be in the negative. rather it is distilled from a number of different haunts and associations among the moorlands of southern scotland. in the dedication and in a letter to me he indicates the lammermuirs as the scene of his tragedy. and mrs. stevenson (his mother) told me that she thought he was inspired by recollections of a visit paid in boyhood to an uncle living at a remote farmhouse in that district called overshiels, in the parish of stow. but though he may have thought of the lammermuirs in the first instance, we have already found him drawing his description of the kirk and manse from another haunt of his youth, namely, glencorse in the pentlands; while passages in chapters v. and viii. point explicitly to a third district, that is, upper tweeddale, with the country stretching thence towards the wells of clyde. with this country also holiday rides and excursions from peebles had made him familiar as a boy: and on the whole it is this which best answers the geographical indications of the story. some of the place-names are clearly not meant to furnish literal indications. the spango, for instance, is a water running, i believe, not into the tweed but into the nith. crossmichael as the name of a town is borrowed from galloway; but it may be taken to all intents and purposes as standing for peebles, where i am told by sir george douglas there existed in the early years of the century a well-known club of the same character as that described in the story. lastly, the name hermiston itself is taken from a farm on the water of ale, between ettrick and teviotdale, and close to the proper country of the elliotts. but it is with the general and essential that the artist deals, and questions of strict historical perspective or local definition are beside the mark in considering his work. nor will any reader expect, or be grateful for, comment in this place on matters which are more properly to the point--on the seizing and penetrating power of the author's ripened art as exhibited in the foregoing pages, his vital poetry of vision and magic of presentment. surely no son of scotland has died leaving with his last breath a worthier tribute to the land he loved. s. c. glossary ae, _one_. antinomian, _one of a sect which holds that under the gospel dispensation the moral law is not obligatory_. auld hornie, _the devil_. ballant, _ballad_. bauchles, _brogues, old shoes_. bauld, _bold_. bees in their bonnet, _eccentricities_. birling, _whirling_. black-a-vised, _dark-complexioned_. bonnet-laird, cock-laird, _small landed proprietor, yeoman_. bool, _ball, technically marble, here = sugar-plum_. brae, _rising ground_. brig, _bridge_. buff, play buff on, _to make a fool of, to deceive_. burn, _stream_. butt end, _end of a cottage_. byre, _cow-house_. ca', _drive_. caller, _fresh_. canna, _cannot_. canny, _careful, shrewd_. cantie, _cheerful_. carline, _old woman_. cauld, _cold_. chalmer, _chamber_. claes, _clothes_. clamjamfry, _crowd_. clavers, _idle talk_. cock-laird. _see_ bonnet-laird. collieshangie, _turmoil_. crack, _to converse_. cuddy, _donkey_. cuist, _cast_. cutty, _jade, also used playfully = brat_. daft, _mad, frolicsome_. dander, _to saunter_. danders, _cinders_. daurna, _dare not_. deave, _to deafen_. denty, _dainty_. dirdum, _vigour_. disjaskit, _worn out, disreputable-looking_. doer, _law agent_. dour, _hard_. drumlie, _dark_. dule-tree, _the tree of lamentation, the hanging tree_. dunting, _knocking_. dwaibly, _infirm, rickety_. earrand, _errand_. ettercap, _vixen_. fechting, _fighting_. feck, _quantity, portion_. feckless, _feeble, powerless_. fell, _strong and fiery_. fey, _unlike yourself, strange, as if urged on by fate, or as persons are observed to be in the hour of approaching death or disaster_. fit, _foot_. flit, _to depart_. flyped, _turned, up, turned inside out_. forbye, in _addition to_. forgather, _to fall in with_. fower, _four_. füshionless, _pithless, weak_. fyle, _to soil, to defile_. fylement, _obloquy, defilement_. gaed, _went_. gang, _to go_. gey an, _very_. gigot, _leg of mutton_. girzie, _lit. diminutive of grizel, here a playful nickname_. glaur, _mud_. glint, _glance, sparkle_. gloaming, _twilight_. glower, _to scowl_. gobbets, _small lumps_. gowden, _golden_. gowsty, _gusty_. grat, _wept_. grieve, _land-steward_. guddle, _to catch fish with the hands by groping under the stones or banks_. guid, _good_. gumption, _common-sense, judgment_. gurley, _stormy, surly_. gyte, _beside itself_. hae, _have, take_. haddit, _held_. hale, _whole_. heels-ower-hurdie, _heels over head_. hinney, _honey_. hirstle, _to bustle_. hizzie, _wench_. howe, _hollow_. howf, _haunt_. hunkered, _crouched_. hypothec, _lii. in scots law the furnishings of a house, and formerly the produce and stock of a farm hypothecated by law to the landlord as security for rent; colloquially "the whole structure," "the whole concern."_ idleset, _idleness_. infeftment, a _term in scots law originally synonymous with investiture_. jaud, _jade_. jeely-piece, _a slice of bread and jelly_. jennipers, _juniper_. jo, _sweetheart_. justifeed, _executed, made the victim of justice_. jyle, _jail_. kebbuck, _cheese_. ken, _to know_. kenspeckle, _conspicuous_. kilted, _tucked up_. kyte, _belly_. laigh, _low_. laird, _landed proprietor_. lane, _alone_. lave, _rest, remainder_. linking, _tripping_. lown, _lonely, still_. lynn, _cataract_. lyon king of arms, _the chief of the court of heraldry in scotland_. macers, _officers of the supreme court_. [_cf._ "guy mannering," last chapter.] maun, _must_. menseful, _of good manners_. mirk, _dark_. misbegowk, _deception, disappointment_. mools, _mould, earth_. muckle, _much, great, big_. my lane, _by myself_. nowt, _black cattle_. palmering, _walking infirmly_. panel, in _scots law, the accused person in a criminal action, the prisoner_. peel, _fortified watch-tower_. plew-stilts, _plough-handles_. policy, _ornamental grounds of a country mansion_. puddock, _frog_. quean, _wench_. rair, _to roar_. riffraff, _rabble_. risping, _grating_. rout, rowt, _to roar, to rant_. rowth, _abundance_. rudas, _haggard old woman_. runt, _an old cow past breeding; opprobriously, an old woman_. sab, _sob_. sanguishes, _sandwiches_. sasine, _in scots law, the act of giving legal possession of feudal property, or, colloquially, the deed by which that possession is proved_. sclamber, _to scramble_. sculduddery, _impropriety, grossness_. session, _the court of session, the supreme court of scotland_. shauchling, _shuffling, slipshod_. shoo, _to chase gently_. siller, _money_. sinsyne, _since then_. skailing, _dispersing_. skelp, _slap_. skirling, _screaming_. skreigh-o'-day, _daybreak_. snash, _abuse_. sneisty, _supercilious_. sooth, _to hum_. sough, _sound, murmur_. spec., _the speculative society, a debating society connected with edinburgh university_. speir, to _ask_. speldering, _sprawling_. splairge, _to splash_. spunk, _spirit, fire_. steik, _to shut_. stirk, _a young bullock_. stockfish, _hard, savourless_. sugar-bool, _sugar-plum_. syne, _since, then_. tawpie, _a slow foolish slut, also used playfully = monkey_. telling you, _a good thing for you_. thir, _these_. thrawn, _cross-grained_. toon, _farm, town_. two-names, _local sobriquets in addition to patronymic_. tyke, _dog_. unchancy, _unlucky_. unco, _strange, extraordinary, very_. upsitten, _impertinent_. vennel, _alley, lane_. the vennel, _a narrow lane in edinburgh running out of the grassmarket_. vivers, _victuals_. wac, _sad, unhappy_. waling, _choosing_. warrandise, _warranty_. waur, _worse_. weird, _destiny_. whammle, _to upset_. whaup, _curlew_. whiles, _sometimes_. windlestrae, _crested dog's-tail grass_. wund, _wind_. yin, _one_. end of vol. xix printed by cassell and company, limited la belle sauvage, london, e.c. http://www.archive.org/details/lifeofsirjamesfi stepuoft transcriber's note: minor punctuation errors have been corrected without notice. printer's errors have been corrected and are listed at the end of the book. all other inconsistencies are as in the original. in this e-book a carat character (^) indicates that the following character(s) is (are) a superscript. sir james fitzjames stephen [illustration: _walker & boutalls ph. sc._ j f stephen _from a drawing by g. f. watts. r. a. ._] london. published by smith elder & c^o. waterloo place. the life of sir james fitzjames stephen, bart., k.c.s.i. a judge of the high court of justice by his brother leslie stephen with two portraits london smith, elder, & co., waterloo place [all rights reserved] preface in writing the following pages i have felt very strongly one disqualification for my task. the life of my brother, sir j. f. stephen, was chiefly devoted to work which requires some legal knowledge for its full appreciation. i am no lawyer; and i should have considered this fact to be a sufficient reason for silence, had it been essential to give any adequate estimate of the labours in question. my purpose, however, is a different one. i have wished to describe the man rather than to give any history of what he did. what i have said of the value of his performances must be taken as mainly a judgment at second hand. but in writing of the man himself i have advantages which, from the nature of the case, are not shared by others. for more than sixty years he was my elder brother; and a brother in whose character and fortunes i took the strongest interest from the earliest period at which i was capable of reflection or observation. i think that brothers have generally certain analogies of temperament, intellectual and moral, which enable them, however widely they may differ in many respects, to place themselves at each other's point of view, and to be so far capable of that sympathetic appreciation which is essential to satisfactory biography. i believe that this is true of my brother and myself. moreover, as we were brought up under the same roof, i have an intimate knowledge--now, alas! almost peculiar to myself--of the little home circle whose characteristics had a profound influence upon his development. i have thought it desirable to give a fuller account of those characteristics, and of their origin in previous circumstances, than can well be given by any one but myself. this is partly because i recognise the importance of the influence exerted upon him; and partly, i will admit, for another reason. my brother took a great interest, and, i may add, an interest not unmixed with pride, in our little family history. i confess that i share his feelings, and think, at any rate, that two or three of the persons of whom i have spoken deserve a fuller notice than has as yet been made public. what i have said may, i hope, serve as a small contribution to the history of one of the rivulets which helped to compose the great current of national life in the earlier part of this century. i could not have attempted to write the life of my brother without the approval and the help of my sister-in-law, lady stephen. she has provided me with materials essential to the narrative, and has kindly read what i have written. i am, of course, entirely responsible for everything that is here said; and i feel the responsibility all the more because i have had the advantage of her suggestions throughout. i have also to thank my brother's children, who have been in various ways very helpful. my nephews, in particular, have helped me in regard to various legal matters. to my sister, miss stephen, i owe a debt of gratitude which--for reasons which she will understand--i shall not attempt to discharge by any full acknowledgment. i have especially to thank sir h. s. cunningham and lady egerton, lady stephen's brother and sister, for permitting me to read my brother's letters to them, and for various suggestions. some other correspondence has been placed in my hands, and especially two important collections. lady grant duff has been good enough to show me a number of letters written to her, and lady lytton has communicated letters written to the late lord lytton. i have spoken of these letters in the text, and have in the last chapter given my reasons for confining my use of them to occasional extracts. they have been of material service. i have acknowledged help received from other persons at the points where it has been turned to account. i will, however, offer my best thanks to them in this place, and assure them of my sincere gratitude. mr. arthur coleridge, the rev. dr. kitchin, dean of durham, the rev. h. w. watson, rector of berkeswell, coventry, the rev. j. llewelyn davies, vicar of kirkby lonsdale, prof. sidgwick and mr. montagu s. d. butler, of pembroke college, cambridge, have given me information in regard to early years. mr. franklin lushington, mr. justice wills, lord field, mr. justice vaughan williams, sir francis jeune, sir theodore martin, the right hon. joseph chamberlain, mr. h. f. dickens, and the late captain parker snow have given me information of various kinds as to the legal career. sir john strachey, sir robert egerton, and sir h. s. cunningham have given me information as to the indian career. mr. george murray smith, mr. james knowles, mr. frederick greenwood, and mr. longman have given me information as to various literary matters. i have also to thank mrs. charles simpson, mr. f. w. gibbs, mrs. russell gurney, mr. horace smith, sir f. pollock, prof. maitland, mr. voysey, and mr. a. h. millar, of dundee, for help on various points. leslie stephen. may, . contents chapter i family history page i. james stephen, writer on imprisonment for debt ii. james stephen, master in chancery iii. master stephen's children iv. the venns v. james stephen, colonial under-secretary chapter ii early life i. childhood ii. eton iii. king's college iv. cambridge v. reading for the bar chapter iii the bar and journalism i. introductory ii. first years at the bar iii. the 'saturday review' iv. education commission and recordership v. progress at the bar vi. 'essays by a barrister' vii. defence of dr. williams viii. 'view of the criminal law' ix. the 'pall mall gazette' x. governor eyre xi. indian appointment chapter iv india i. personal history ii. official work in india iii. indian impressions iv. last months in india chapter v last years at the bar i. first occupations in england ii. 'liberty, equality, fraternity' iii. dundee election iv. codification in england v. the metaphysical society vi. the criminal code vii. ecclesiastical cases viii. correspondence with lord lytton ix. appointment to a judgeship note on residence in ireland chapter vi judicial career i. history of criminal law ii. 'nuncomar and impey' iii. judicial characteristics iv. miscellaneous occupations v. james kenneth stephen vi. conclusion bibliographical note index * * * * * _illustrations_ portrait from a drawing by g. f. watts, r.a., _frontispiece_ " " photograph by bassano, _to face p. _ life of sir james fitzjames stephen chapter i _family history_ i. james stephen, writer on imprisonment for debt during the first half of the eighteenth century a james stephen, the first of the family of whom i have any knowledge, was tenant of a small farm in aberdeenshire, on the borders of buchan.[ ] he was also engaged in trade, and, though it is stated that smuggler would be too harsh a name to apply to him, he had no insuperable objection to dealing in contraband articles. he was considered to belong to the respectable class, and gave his sons a good education. he had nine children by his wife, mary brown. seven of these were sons, and were said to be the finest young men in the country. alexander, the eldest, was in business at glasgow; he died when nearly seventy, after falling into distress. william, the second son, studied medicine, and ultimately settled at st. christopher's, in the west indies, where he was both a physician and a planter. he probably began life as a 'surgeon to a guineaman,' and he afterwards made money by buying 'refuse' (that is, sickly) negroes from slave ships, and, after curing them of their diseases, selling them at an advanced price. he engaged in various speculations, and had made money when he died in , in his fiftieth year. his career, as will be seen, was of great importance to his relations. the other sons all took to trade, but all died before william. the two sisters, mrs. nuccoll and mrs. calder, married respectably, and lived to a great age. they were able to be of some service to nephews and nieces. my story is chiefly concerned with the third son, james, born about . after studying law for a short time at aberdeen, he was sent abroad, when eighteen years old, to holland, and afterwards to france, with a view to some mercantile business. he was six feet three inches in height, and a man of great muscular power. family traditions tell of his being attacked by two footpads, and knocking their heads together till they cried for mercy. another legend asserts that when a friend offered him a pony to carry him home after dinner, he made and won a bet that he would carry the pony. in the year this young giant was sailing as supercargo of a ship bound from bordeaux to scotland, with wine destined, no doubt, to replenish the 'blessed bear of bradwardine,' and its like. the ship had neared the race of portland, when a storm arose, and she was driven upon the cliffs of purbeck island. james stephen, with four of the crew, escaped to the rocks, the rest being drowned. stephen roped his companions to himself, and scaled the rocks in the dark, as lovel, in the 'antiquary,' leads the wardours and edie ochiltree up the crags of the halket head. next day, the outcasts were hospitably received by mr. milner, collector of customs at poole. stephen had to remain for some time on the spot to look after the salvage of the cargo. the drowned captain had left some valuable papers in a chest. he appeared in a dream to stephen, and gave information which led to their recovery. the news that his ghost was on the look-out had, it is said, a wholesome effect in deterring wreckers from interference with the cargo. mr. milner had six children, the youngest of whom, sibella, was a lovely girl of fifteen. she had a fine voice, and had received more than the usual education of the times. she fell in love with the gallant young stranger, and before long they were privately married. this event was hastened by their desire to anticipate the passage of the marriage act (june ), which was expected to make the consent of parents necessary. the poor girl, however, yielded with much compunction, and regarded the evils which afterwards befell her as providential punishments for her neglect of filial duty. james stephen was a man of many prepossessing qualities, and soon became reconciled to his wife's family. he was taken into partnership by one of his brothers-in-law, a william milner, then a merchant at poole. here his two eldest children were born, william on october , , and james on june , . unfortunately the firm became bankrupt; and the bankruptcy led to a lifelong quarrel between james stephen and his elder brother, william, who had taken some share in the business. james then managed to start in business in london, and for some time was fairly prosperous. unluckily, while at poole he had made a great impression upon sir john webbe, a roman catholic baronet, who had large estates in the neighbourhood. sir john had taken up a grand scheme for developing his property at hamworthy, close to poole. stephen, it seems, had discovered that there were not only brick earth and pipeclay but mineral springs and coal under the barren soil. a town was to be built; a trade started with london; sir john's timber was to be turned into ships; a colliery was to be opened--and, in short, a second bristol was to arise in dorsetshire. sir john was to supply the funds, and stephen's energy and ability marked him out as the heaven-sent manager. stephen accepted the proposals, gave up his london business, and set to work with energy. coal was found, it is said, 'though of too sulphureous a kind for use;' but deeper diggings would, no doubt, lay bare a superior seam. after a year or two, however, affairs began to look black; sir john webbe became cool and then fell out with his manager; and the result was that, about , james stephen found himself confined for debt in the king's bench prison.[ ] stephen, however, was not a man to submit without knowing the reason why. he rubbed up his old legal knowledge, looked into the law-books, and discovered that imprisonment for debt was contrary to magna charta. this doctrine soon made converts in the king's bench. three of his fellow prisoners enjoy such immortality as is conferred by admission to biographical dictionaries. the best known was the crazy poet, christopher smart, famous for having leased himself for ninety-nine years to a bookseller, and for the fine 'song of david,' which browning made the text of one of his later poems.[ ] another was william jackson, an irish clergyman, afterwards known as a journalist on the popular side, who was convicted of high treason at dublin in , and poisoned himself in the dock.[ ] a third was william thompson, known as 'blarney,' a painter, who had married a rich wife in , but had apparently spent her money by this time.[ ] mrs. stephen condescended to enliven the little society by her musical talents. the prisoners in general welcomed stephen as a champion of liberty. a writ of 'habeas corpus' was obtained, and stephen argued his case before lord mansfield. the great lawyer was naturally less amenable to reason than the prisoners. he was, however, impressed, it is reported, by the manliness and energy of the applicant. 'it is a great pity,' he said, 'but the prisoner must be remanded.' james stephen's son, james, a boy of twelve, was by his side in court, and a bystander slipped five shillings into his hand; but the father had to go back to his prison. he stuck to his point obstinately. he published a pamphlet, setting forth his case. he wrote letters to the 'public advertiser,' to which junius was then contributing. he again appealed to the courts, and finally called a meeting of his fellow prisoners. they resolved to break out in a body, and march to westminster, to remonstrate with the judges. stephen seized a turnkey, and took the keys by force; but, finding his followers unruly, was wise enough to submit. he was sent with three others to the 'new jail.' the prisoners in the king's bench hereupon rose, and attacked the wall with a pickaxe. soldiers were called in, and the riot finally suppressed.[ ] stephen, in spite of these proceedings, was treated with great humanity at the 'new jail;' and apparently without much severity at the king's bench to which he presently returned. 'blarney' thompson painted his portrait, and i possess an engraving with the inscription, 'veritas à quocunque dicitur à deo est.' not long ago a copy of this engraving was given to my brother by a friend who had seen it in a shop and recognised the very strong family likeness between james and his great-grandson, james fitzjames. stephen soon got out of prison. sir john webbe, at whose suit he had been arrested, agreed to pay the debts, gave him _l._ and settled an annuity of _l._ upon mrs. stephen. i hope that i may infer that sir john felt that his debtor had something to say for himself. the question of making a living, however, became pressing. stephen, on the strength, i presume, of his legal studies, resolved to be called to the bar. he entered at the middle temple; but had scarcely begun to keep his terms when the authorities interfered. his letters to the papers and attacks upon lord mansfield at the very time when junius was at the height of his power (i do not, i may observe, claim the authorship of the letters for james stephen) had, no doubt, made him a suspicious character. the benchers accordingly informed him that they would not call him to the bar, giving as their reasons his 'want of birth, want of fortune, want of education, and want of temper.' his friend, william jackson, hereupon printed a letter,[ ] addressing the benchers in the true junius style. he contrasts stephen with his persecutors. stephen might not know law latin, but he had read bracton and glanville and coke; he knew french and had read latin at aberdeen; he had been educated, it was true, in some 'paltry principles of honour and honesty,' while the benchers had learnt 'more useful lessons;' he had written letters to wilkes copied in all the papers; he had read locke, could 'harangue for hours upon social feelings, friendship, and benevolence,' and would trudge miles to save a family from prison, not considering that he was thereby robbing the lawyers and jailors of their fees. the benchers, it seems, had sworn the peace against him before sir john fielding, because he had made a friendly call upon a member of the society. they mistook a card of introduction for a challenge. jackson signs himself 'with the profoundest sense of your masterships' demerits, your masterships' inflexible detestor,' and probably did not improve his friend's position. stephen, thus rejected, entered the legal profession by a back door, which, if not reputable, was not absolutely closed. he entered into a kind of partnership with a solicitor who was the ostensible manager of the business, and could be put forward when personal appearance was necessary. stephen's imposing looks and manner, his acquaintance with commercial circles and his reputation as a victim of mansfield brought him a certain amount of business. he had, however, to undertake such business as did not commend itself to the reputable members of the profession. he had a hard struggle and was playing a losing game. he became allied with unfortunate adventurers prosecuting obscure claims against government, which, even when admitted, did not repay the costs incurred. he had to frequent taverns in order to meet his clients, and took to smoking tobacco and possibly to other indulgences. his wife, who was a delicate woman, was put to grievous shifts to make both ends meet. her health broke down, and she died at last on march , . she had brought him six children, of whom the eldest was nineteen and the youngest still under four.[ ] i shall speak directly of the two eldest. two daughters were taken in charge by their grandmother stephen, who was still living in scotland; while the two little ones remained with their father at stoke newington, where he now lived, ran about the common and learnt to ride pigs. james stephen himself lived four years more, sinking into deeper difficulties; an execution was threatened during his last illness, and he died in , leaving hardly enough to pay his debts.[ ] ii. james stephen, master in chancery i have now to tell the story of the second son, james, my grandfather, born in . his education, as may be anticipated, was desultory. when four or five years old, he was sent to a school at vauxhall kept by peter annet ( - ), the last of the deists who (in ) was imprisoned for a blasphemous libel. the elder stephen was then living at lambeth, and the choice of a schoolmaster seems to show that his opinions were of the free-thinking type. about the boy was sent to a school near his mother's family at poole. there at the early age of ten he fell desperately in love with his schoolmaster's daughter, aged fifteen, and was hurt by the levity with which his passion was treated. at the same period he became a poet, composed hymns, and wrote an epigram upon one of his father's creditors. he accompanied his father to the king's bench prison, and there christopher smart and others petted the lad, lent him books, and encouraged his literary aspirations. during his father's later troubles he managed to keep up a subscription to a circulating library and would read two volumes a day, chiefly plays and novels, and, above all, the 'grand cyrus' and other old-fashioned romances. his mother tried to direct him to such solid works as rapin's history, and he learnt her favourite young's 'night thoughts' by heart. he had no schooling after leaving poole, until, about , he was sent to a day school on kennington green, kept by a cheesemonger who had failed in business, and whose sole qualifications for teaching were a clerical wig and a black coat. here occurred events which profoundly affected his career. a schoolfellow named thomas stent, son of a stockbroker, became his warm friend. the parent stents forbade the intimacy with the son of a broken merchant. young stephen boldly called upon mrs. stent to protest against the sentence. she took a liking to the lad and invited him to her house, where the precocious youth fell desperately in love with anne stent, his schoolfellow's sister, who was four months his senior. the attachment was discovered and treated with ridicule. the girl, however, returned the boy's affection and the passion ran its course after the most approved fashion. the hero was forbidden the house and the heroine confined to her room. there were clandestine meetings and clandestine correspondence, in which the schoolboy found the advantage of his studies in the 'grand cyrus.' at last in the affair was broken off for the time by the despatch of james stephen to winchester, where one of his milner uncles boarded him and sent him to the school. his want of preparation prevented him from profiting by the teaching, and after the first half year his parents' inability to pay the bills prevented him from returning. he wrote again to miss stent, but received a cold reply, signifying her obedience to parental authority. for the next two years he learnt nothing except from his studies at the circulating library. his mother, sinking under her burthens, did what she could to direct him, and he repaid her care by the tenderest devotion. upon her death he thought for a moment of suicide. things were looking black indeed. his elder brother william now took a bold step. his uncle and godfather, william, who had quarrelled with the family after the early bankruptcy at poole, was understood to be prospering at st. christopher's. the younger william, who had been employed in a mercantile office, managed to beg a passage to the west indies, and threw himself upon the uncle's protection. the uncle received the boy kindly, promised to take him into partnership as a physician, and sent him back by the same ship in order to obtain the necessary medical training at aberdeen. he returned just in time. james had been thinking of volunteering under washington, and had then accepted the offer of a 'book-keeper's' place in jamaica. he afterwards discovered that a 'book-keeper' was an intermediate between the black slave-driver and the white overseer, and was doomed to a miserable and degrading life. it was now settled that he should go with william to aberdeen, and study law. he entered at lincoln's inn, and looked forward to practising at st. christopher's. the uncle refused to extend his liberality to james; but a student could live at aberdeen for _l._ a year; the funds were somehow scraped together; and for the next two sessions, - and - , james was a student at the marischal college. the town, he says, was filthy and unwholesome; but his scottish cousins were cordial and hospitable, the professors were kindly; and though his ignorance of latin and inability even to read the greek alphabet were hindrances, he picked up a little mathematics and heard the lectures of the great dr. beattie. his powers of talk and his knowledge of london life atoned for his imperfect education. he saw something of aberdeen society; admired and danced with the daughters of baillies, and was even tempted at times to forget his passion for anne stent, who had sent a chilling answer to a final appeal. in , stephen returned to london, and had to take part of his father's dwindling business. he thus picked up some scraps of professional knowledge. on the father's death, kind scottish relations took charge of the two youngest children, and his brother william soon sailed for st. christopher's. james was left alone. he appealed to the uncle, george milner, with whom he had lived at winchester, and who, having married a rich wife, was living in comfort at comberton, near cambridge. the uncle promised to give him _l._ a year to enable him to finish his legal education. he took lodgings on the strength of this promise, and resolved to struggle on, though still giving an occasional thought to washington's army. isolation and want of money naturally turn the thoughts of an energetic young man to marriage. james stephen resolved once more to appeal to anne stent. her father's doors were closed to him; but after long watching he managed to encounter her as she was walking. he declared his unaltered passion, and she listened with apparent sympathy. she showed a reserve, however, which was presently explained. in obedience to her parents' wishes, she had promised to marry a young man who was on his return from the colonies. the avowal led to a pathetic scene: anne stent wept and fainted, and finally her feelings became so clear that the couple pledged themselves to each other; and the young gentleman from the colonies was rejected. mr. stent was indignant, and sent his daughter to live elsewhere. the young couple, however, were not forbidden to meet, and found an ally in james stephen's former schoolfellow, thomas stent. he was now a midshipman in the royal navy; and he managed to arrange meetings between his sister and her lover. stent soon had to go to sea, but suggested an ingenious arrangement for the future. a lovely girl, spoken of as maria, was known to both the stents and passionately admired by the sailor. she lived in a boarding-house, and stent proposed that stephen should lodge in the same house, where he would be able both to see anne stent and to plead his friend's cause with maria. this judicious scheme led to difficulties. when, after a time, stephen began to speak to maria on behalf of stent, the lady at last hinted that she had another attachment, and, on further pressure, it appeared that the object of the attachment was stephen himself. he was not insensible, as he then discovered, to maria's charms. 'i have been told,' he says, 'that no man can love two women at once; but i am confident that this is an error.' the problem, however, remained as to the application of this principle to practice. the first consequence was a breach with the old love. miss stent and her lover were parted. maria, however, was still under age, and stephen was under the erroneous impression that a marriage with her would be illegal without the consent of her guardians, which was out of the question. while things were in this state, thomas stent came back from a cruise covered with glory. he hastened at once from portsmouth to his father, and persuaded the delighted old gentleman to restore his daughter to her home and to receive james stephen to the house as her acknowledged suitor. he then sent news of his achievement to his friend; and an interview became necessary, to which james stephen repaired about as cheerfully, he says, as he would have gone to tyburn tree. he had to confess that he had broken off the engagement to his friend's sister because he had transferred his affections to his friend's mistress. stent must have been a magnanimous man. he replied, after reflection, that the news would break his father's heart. the arrangement he had made must be ostensibly carried out. stephen must come to the elder stent's house and meet the daughter on apparently cordial terms. young stent's friendship was at an end; but stephen felt bound to adopt the prescribed plan. meanwhile stephen's finances were at a low ebb. his uncle, milner, had heard a false report, that the nephew had misrepresented the amount of his father's debts. he declined to pay the promised allowance, and stephen felt the insult so bitterly that, after disproving the story, he refused to take a penny from his uncle. he was once reduced to his last sixpence, and was only kept afloat by accepting small loans, amounting to about _l._, from an old clerk of his father's. at last, towards the end of a chance offered. the 'fighting parson,' bate, afterwards sir henry bate dudley, then a part proprietor of the 'morning post,' quarrelled with a fellow proprietor, joseph richardson, put a bullet into his adversary's shoulder and set up a rival paper, the 'morning herald.' a vacancy was thus created in the 'morning post,' and richardson gave the place to stephen, with a salary of two guineas a week. stephen had to report debates on the old system, when paper and pen were still forbidden in the gallery. at the trial of lord george gordon (february and , ) he had to be in westminster hall at four in the morning; and to stand wedged in the crowd till an early hour the next morning,[ ] when the verdict was delivered. he had then to write his report while the press was at work. the reporters were employed at other times upon miscellaneous articles; and stephen acquired some knowledge of journalism and of the queer world in which journalists then lived. they were a rough set of bohemians, drinking, quarrelling, and duelling, and indulging in coarse amusements. fortunately stephen's attendance upon the two ladies, for he still saw something of both, kept him from joining in some of his fellows' amusements. in there came a prospect of relief. the uncle in st. christopher's died and left all his property to his nephew william. william at once sent home supplies, which enabled his brother james to give up reporting, to be called to the bar (january , ) and in the next year to sail to st. christopher's. his love affair had unravelled itself. he had been suspended between the two ladies, and only able to decide that if either of them married he was bound to marry the other. miss stent seems to have been the superior of maria in intellect and accomplishments, though inferior in beauty. she undoubtedly showed remarkable forbearance and good feeling. ultimately she married james stephen before he sailed for the west indies. maria not long afterwards married someone else, and, to the best of my belief, lived happily ever afterwards. my grandfather's autobiography, written about forty years later, comes to an end at this point. it is a curious document, full of the strong religious sentiment by which he came to be distinguished; tracing the finger of providence in all that happened to him, even in the good results brought out of actions for which he expresses contrition; and yet with an obvious pleasure in recalling the vivid impressions of his early and vigorous youth. i omit parts of what is at times a confession of error. this much i think it only right to say. although he was guilty of some lapses from strict morality, for which he expresses sincere regret, it is also true that, in spite of his surroundings and the temptations to which a very young man thrown upon the london world of those days was exposed, he not only showed remarkable energy and independence and a strong sense of honour, but was to all appearance entirely free from degrading vices. his mother's influence seems to have impressed upon him a relatively high standard of morality, though he was a man of impetuous and ardent character, turned loose in anything but a pure moral atmosphere. james stephen had at this time democratic tendencies. he had sympathised with the rebellious colonists, and he had once covered himself with glory by a speech against slavery delivered in coachmakers' hall in presence of maria and miss stent. he had then got up the subject for the occasion. he was now to make practical acquaintance with it. his ship touched at barbadoes in december ; and out of curiosity he attended a trial for murder. four squalid negroes, their hands tied by cords, were placed at the bar. a planter had been found dead with injuries to his head. a negro girl swore that she had seen them inflicted by the four prisoners. there was no jury, and the witnesses were warned in 'the most alarming terms' to conceal nothing that made against the accused. stephen, disgusted by the whole scene, was glad to leave the court. he learnt afterwards that the prisoners were convicted upon the unsupported evidence of the girl. the owner of two of them afterwards proved an _alibi_ conclusively, and they were pardoned; but the other two, convicted on precisely the same evidence, were burnt alive.[ ] stephen resolved never to have any connection with slavery. during his stay at st. christopher's he had free servants, or, if he hired slaves, obtained their manumission. no one who had served him long remained in slavery, except one man, who was so good and faithful a servant that his owner refused to take even the full value when offered by his employer.[ ] other facts strengthened his hatred of the system. in he was engaged in prosecuting a planter for gross cruelty to two little negroes of and years of age. after long proceedings, the planter was fined _s._ a lawyer's practice at st. christopher's was supposed to be profitable. the sugar colonies were flourishing; and nelson, then captain of the 'boreas,' was giving proof of his character, and making work for the lawyers by enforcing the provisions of the navigation act upon recalcitrant american traders and their customers. stephen earned enough to be able to visit england in the winter of - . there he sought the acquaintance of wilberforce, who was beginning his crusade against the slave trade. information from a shrewd observer on the spot was, of course, of great value; and, although prudence forbade a public advocacy of the cause, stephen supplied wilberforce with facts and continued to correspond with him after returning to st. christopher's. the outbreak of the great war brought business. during - the harbour of st. christopher's was crowded with american prizes, and stephen was employed to defend most of them in the courts. his health suffered from the climate, and he now saved enough to return to england at the end of . he then obtained employment in the prize appeal court of the privy council, generally known as the 'cockpit.' he divided the leading business with dallas until his appointment to a mastership in chancery in . stephen was now able to avow his anti-slavery principles and soon became one of wilberforce's most trusted supporters. he was probably second only to zachary macaulay, who had also practical experience of the system. stephen's wife died soon after his return, and was buried at stoke newington on december , . he was thrown for a time into the deepest dejection. wilberforce forced himself upon his solitude, and with the consolations of so dear a friend his spirits recovered their elasticity. four years later the friendship was drawn still closer by stephen's marriage to the only surviving sister of wilberforce, widow of the rev. dr. clarke, of hull. she was a rather eccentric but very vigorous woman. she spent all her income, some _l._ or _l._ a year, on charity, reserving _l._ for her clothes. she was often to be seen parading clapham in rags and tatters. thomas gisborne, a light of the sect, once tore her skirt from top to bottom at his house, yoxall lodge, saying 'now, mrs. stephen, you _must_ buy a new dress.' she calmly stitched it together and appeared in it next day. she made her stepchildren read butler's 'analogy' before they were seven.[ ] but in spite of her oddities and severities, she seems to have been both respected and beloved by her nearest relations. the marriage probably marked stephen's final adhesion to the evangelical party. he maintained till his death the closest and most affectionate alliance with his brother-in-law wilberforce. the nature of their relations may be inferred from wilberforce's 'life and letters.' wilberforce owed much of his influence to the singular sweetness of his disposition and the urbanity of his manners. his wide sympathies interested him in many causes, and even his antagonists were not enemies. stephen, on the other hand, as mr. henry adams says, was a 'high-minded fanatic.' to be interested in any but the great cause was to rouse his suspicions. 'if you,' he once wrote to wilberforce, 'were wellington, and i were masséna, i should beat you by distracting your attention from the main point.' any courtesies shown by wilberforce to his opponents or to his old friend pitt seemed to his ardent coadjutor to be concessions to the evil principle. the continental war, he held, was a divine punishment inflicted upon england for maintaining the slave trade; and he expounded this doctrine in various pamphlets, the first of which, 'the crisis of the sugar colonies,' appeared in . yet stephen owes a small niche in history to another cause, upon which he bestowed no little energy. his professional practice had made him familiar with the course of the neutral trade. in october , almost on the day of the battle of trafalgar, he published a pamphlet called 'war in disguise.' the point of this, put very briefly, was to denounce a practice by which our operations against france and spain were impeded. american ships, or ships protected by a fraudulent use of the american flag, sailed from the hostile colonies, ostensibly for an american port, and then made a nominally distinct but really continuous voyage to europe. thus the mother countries were still able to draw supplies from the colonies. the remedy suggested in stephen's pamphlet was to revive the claims made by england in the seven years' war which entitled us to suppress the trade altogether. the policy thus suggested was soon embodied in various orders in council. the first was made on january , , by the whig government before they left office and a more stringent order followed in november. the last was drawn by perceval, the new chancellor of the exchequer. perceval was a friend of wilberforce and sympathised both with his religious views and his hatred of the slave trade. he soon became intimate with stephen, to whose influence the orders in council were generally attributed. brougham, the chief opponent of the policy, calls 'war in disguise' 'brilliant and captivating,' and says that its statement of facts was undeniable. i cannot say that i have found it amusing, but it is written with vigour and impressive earnestness. brougham calls stephen the 'father of the system'; and, whether the system were right or wrong, it had undoubtedly a great influence upon the course of events. i fear that my grandfather was thus partly responsible for the unfortunate war with the united states; but he clearly meant well. in any case, it was natural that perceval should desire to make use of his supporter's talents. he found a seat in parliament for his friend. stephen was elected member for tralee on feb. , , and in the parliament which met in was returned for east grimstead. stephen thus entered parliament as an advocate of the government policy. his revolutionary tendencies had long vanished. he delivered a speech upon the orders in council on may , , which was reprinted as a pamphlet.[ ] he defended the same cause against the agitation led by brougham in . a committee of the whole house was granted, and stephen was cross-examining one of brougham's witnesses (may , ), when a shot was heard in the lobby, and perceval was found to have been murdered by bellingham. stephen had just before been in perceval's company, and it was thought, probably enough, that he would have been an equally welcome victim to the maniac. he was made ill by the shock, but visited the wretched criminal to pray for his salvation. stephen, according to brougham, showed abilities in parliament which might have given him a leading position as a debater. his defective education, his want of tact, and his fiery temper, prevented him from rising to a conspicuous position. his position as holding a government seat in order to advocate a particular measure, and the fact that politics in general were to him subsidiary to the one great end of abolishing slavery, would also be against him. two incidents of his career are characteristic. the benchers of lincoln's inn had passed a resolution--'after dinner' it was said by way of apology--that no one should be called to the bar who had written for hire in a newspaper. a petition was presented to the house of commons upon which stephen made an effective speech (march , ). he put the case of a young man struggling against difficulties to obtain admission to a legal career and convicted of having supported himself for a time by reporting. then he informed the house that this was no imaginary picture, but the case of 'the humble individual who now addresses you.' immense applause followed; croker and sheridan expressed equal enthusiasm for stephen's manly avowal, and the benchers' representatives hastened to promise that the obnoxious rule should be withdrawn. when the allied sovereigns visited london in another characteristic incident occurred. they were to see all the sights: the king of prussia and field-marshal blücher were to be edified by hearing a debate; and the question arose how to make a debate conducted in so august a presence anything but a formality. 'get whitbread to speak,' suggested someone, 'and stephen will be sure to fly at him.' the plan succeeded admirably. whitbread asked for information about the proposed marriage of the princess charlotte to the prince of orange. stephen instantly sprang up and rebuked the inquirer. whitbread complained of the epithet 'indecent' used by his opponent. the speaker intervened and had to explain that the epithet was applied to mr. whitbread's proposition and not to mr. whitbread himself. stephen, thus sanctioned, took care to repeat the phrase; plenty of fire was introduced into the debate, and field-marshal blücher had the pleasure of seeing a parliamentary battle.[ ] whitbread was obnoxious to stephen as a radical and as an opponent of the orders in council. upon another question stephen was still more sensitive. when the topic of slavery is introduced, the reporters describe him as under obvious agitation, and even mark a sentence with inverted commas to show that they are giving his actual words. the slave-trade had been abolished before he entered parliament; but government was occasionally charged with slackness in adopting some of the measures necessary to carry out the law, and their supporters were accused of preserving 'a guilty silence.' such charges stung stephen to the quick. 'i would rather,' he exclaimed (june , ), 'be on friendly terms with a man who had strangled my infant son than support an administration guilty of slackness in suppressing the slave trade.' 'if lord castlereagh does not keep to his pledges,' he exclaimed (june , , when romilly spoke of the 'guilty silence'), 'may my god not spare me, if i spare the noble lord and his colleagues!' the government declined to take up a measure for the registration of slaves which stephen had prepared, and which was thought to be necessary to prevent evasions of the law. thereupon he resigned, in spite of all entreaties, accepting the chiltern hundreds, april , . brougham warmly praises his independence, and wishes that those who had spoken slightingly of his eloquence would take to heart his example. stephen had in been rewarded for his support of the orders in council by a mastership in chancery. romilly observes that the appointment was questionable, because stephen, though he was fully qualified by his abilities, was not sufficiently versed in the law. his friends said that it was no more than a fair compensation for the diminution of the prize business which resulted from the new regulations. he held the office till , when failing health caused his retirement. he lived for many years at kensington gore on the site of the present lowther lodge; and there from to wilberforce was his neighbour. his second wife, wilberforce's sister, died in october . after leaving parliament, he continued his active crusade against slavery. he published, it is said, four pamphlets in ; and in brought out the first volume of his 'slavery of the british west india colonies delineated.' this is an elaborate digest of the slave laws; and it was followed in by a second volume describing the actual working of the system. from about stephen had a small country house at missenden, bucks.[ ] here he was occasionally visited by his brother-in-law, and a terrace upon which they used to stroll is still known as 'wilberforce's walk.' stephen had a keen love of country scenery and had inherited from his father a love of long daily walks. i record from tradition one story of his prowess. in the early morning of his seventieth birthday, it is said, he left missenden on foot, walked twenty-five miles to hampstead, where he breakfasted with a son-in-law, thence walked to his office in london, and, after doing his day's work, walked out to kensington gore in the evening. it was a good performance, and i hope not injurious to his health, nor can i accept the suggestion that the old gentleman may have taken a lift in a pony carriage by which he used to be followed in his walks. he certainly retained his vigour, although he had suffered from some serious illnesses. he was attacked by yellow fever in the west indies, when his brother william and another doctor implored him to let them bleed him. on his obstinate refusal, they turned their backs in consultation, when he suddenly produced a bottle of port from under his pillow and took it off in two draughts. next day he left his bed and defended a disregard of professional advice which had been suggested by previous observations. he became a staunch believer in the virtues of port, and though he never exceeded a modest half-bottle, drank it steadily till the last. he was, i am told, and a portrait confirms the impression, a very handsome old man with a beautiful complexion, masses of white hair, and a keen thoughtful face. he died at bath, october , . he was buried at stoke newington by the side of his mother. there wilberforce had promised to be buried by his friend; but for him westminster abbey was a fitter resting-place.[ ] the master and his elder brother had retrieved the fortunes of the family. william returned to england, and died about . he left a family by his wife, mary forbes, and his daughter mary became the wife of archdeacon hodson and the mother of hodson of 'hodson's horse.' the master's younger brother, john, also emigrated to st. christopher's, practised at the bar, and ultimately became judge of the supreme court of new south wales in . he died at sydney in . john's fourth son, alfred, born at st. christopher's, august , , was called to the bar at lincoln's inn in , became in solicitor-general of tasmania, in judge, and in chief justice, of new south wales. he retired in , and was for a time lieutenant-governor of the colony. he received many honours, including the grand cross of the order of st. michael and st. george, and a seat in the privy council; and, from all that i have heard, i believe that he fully deserved them. he took an important part in consolidating the criminal law of the colonies, and near the end of his long career (at the age of ) became conspicuous in advocating a change in the law of divorce. the hardships suffered by women who had been deserted by bad husbands had excited his sympathy, and in spite of much opposition he succeeded in obtaining a measure for relief in such cases. sir alfred died on october , . he was twice married, and had five sons and four daughters by one marriage and four sons and five daughters by the other. one of his sons is a judge in the colony, and i believe that at the period of his death he had considerably more than a hundred living descendants in three generations. he was regarded with universal respect and affection as a colonial patriarch, and i hope that his memory may long be preserved and his descendants flourish in the growing world of australia. to the very end of his life, sir alfred maintained his affectionate relations with his english relatives, and kept up a correspondence which showed that his intellectual vigour was unabated almost to the last. iii. master stephen's children i have now to speak of the generation which preceded my own, of persons who were well known to me, and who were the most important figures in the little world in which my brother and i passed our infancy. james stephen, the master, was survived by six children, of whom my father was the third. i will first say a few words of his brothers and sisters. the eldest son, william, became a quiet country clergyman. he was vicar of bledlow, bucks (for nearly sixty years), and of great stagsden, beds, married a miss grace, but left no children, and died january , . i remember him only as a mild old gentleman with a taste for punning, who came up to london to see the great exhibition of , and then for the first time had also the pleasure of seeing a steamboat. steamboats are rare in the buckinghamshire hills, among which he had vegetated ever since their invention. henry john, the second son, born january , , was at the chancery bar. he married his cousin, mary morison, and from till he lived with his father at kensington gore. a nervous and retiring temper prevented him from achieving any great professional success, but he was one of the most distinguished writers of his time upon legal subjects. his first book, 'treatise on the principles of pleading in civil actions,' originally published in , has gone through many editions both in england and america. chancellor kent, as allibone's dictionary informs me, calls it 'the best book that ever was written in explanation of the science,' and many competent authorities have assured me that it possesses the highest merits as a logical composition, although the law of which it treats has become obsolete. the reputation acquired by this book led to his appointment to a seat in the common law commission formed in ; and in the same year he became serjeant-at-law. his brother commissioners became judges, but his only promotion was to a commissionership of bankruptcy at bristol in .[ ] in he published a 'summary of the criminal law,' which was translated into german. his edition of blackstone's commentaries first appeared in . it contained from the first so much of his own work as to be almost an independent performance. in later editions he introduced further changes to adapt it to later legislation, and it is still a standard book. he lived after the bristol appointment at cleevewood in the parish of mangotsfield. he retired in february , and lived afterwards in clifton till his death on november , . i remember him as a gentle and courteous old man, very shy, and, in his later years, never leaving his house, and amusing himself with speculating upon music and the prophecies. he inherited apparently the nervous temperament of his family with less than their usual dash of the choleric.[ ] my uncle, sir george, declares that the serjeant was appointed to a judgeship by lord lyndhurst, but immediately resigned, on the ground that he felt that he could never bear to pass a capital sentence.[ ] i record the anecdote, not as true (i have reasons for thinking it erroneous), but as indicating the impression made by his character. the fourth brother, george, born about , was a man of very different type. in him appeared some of the characteristics of his irascible and impetuous grandfather. his nature was of coarser fibre than that of his sensitive and nervous brothers. he was educated at magdalene college, cambridge; and was afterwards placed in the office of the freshfields, the eminent firm of solicitors. he had, i have been told, an offer of a partnership in the firm, but preferred to set up for himself. he was employed in the rather unsavoury duty of procuring evidence as to the conduct of queen caroline upon the continent. in he undertook an inquiry ordered by the house of commons in consequence of complaints as to the existence of a slave trade in mauritius. he became acquainted with gross abuses, and resolved thereupon to take up the cause with which his family was so closely connected. he introduced himself to o'connell in order to learn some of the secrets of the great art of agitation. fortified by o'connell's instructions, he proceeded to organise the 'celebrated agency committee.' this committee, headed by zachary macaulay, got up meetings and petitions throughout the country, and supported buxton in the final assault upon slavery. for his services in the cause, george stephen was knighted in . he showed a versatile ability by very miscellaneous excursions into literature. he wrote in 'adventures of a gentleman in search of a horse,' which became popular, and proved that, besides understanding the laws relating to the subject, he was the only one, as i believe, of his family who could clearly distinguish a horse from a cow. a very clever but less judicious work was the 'adventures of an attorney in search of practice,' first published in , which gave or was supposed to give indiscreet revelations as to some of his clients. besides legal pamphlets, he proved his sound evangelicalism by a novel called 'the jesuit at cambridge' ( ), intended to unveil the diabolical machinations of the catholic church. an unfortunate catastrophe ruined his prospects. he had founded a society for the purchase of reversions and acted as its solicitor. it flourished for some years, till misunderstandings arose, and sir george had to retire, besides losing much more than he could afford. he then gave up the profession which he had always disliked, was called to the bar in and practised for some years at liverpool, especially in bankruptcy business. at last he found it necessary to emigrate and settled at melbourne in . he found the colonists at least as perverse as the inhabitants of his native country. he wrote a 'life of christ' (not after the plan of renan) intended to teach them a little christianity, and a (so-called) life of his father, which is in the main an exposition of his own services and the ingratitude of mankind. the state of australian society seemed to him to justify his worst forebodings; and he held that the world in general was in a very bad way. it had not treated him too kindly; but i fear that the complaints were not all on one side. he was, i suppose, one of those very able men who have the unfortunate quality of converting any combination into which they enter into an explosive compound. he died at melbourne, june , .[ ] the master's two daughters were sibella, born , and anne mary, whose birth caused the death of her mother in december . sibella married w. a. garratt, who was second wrangler and first smith's prizeman in . he was a successful barrister and a man of high character, though of diminutive stature. 'mr. garratt,' a judge is reported to have said to him, 'when you are addressing the court you should stand up.' 'i am standing up, my lord.' 'then, mr. garratt, you should stand upon the bench.' 'i am standing upon the bench, my lord.' he had been disinherited by his father, i have heard, for preferring a liberal profession to trade, but upon his father's death his brothers made over to him the share which ought to have been left to him. he was for many years on the committee of the church missionary society, and wrote in defence of evangelical principles.[ ] his houses at hampstead and afterwards at brighton were among our youthful resorts; and my aunt remains in my memory as a gentle, kindly old lady, much afflicted by deafness. mr. garratt died in , aged , and his wife at the same age on february , . anne mary, my other aunt, married thomas edward dicey. he was a schoolfellow and college friend of my father. i may observe, for the sake of cambridge readers, that, after passing his first year of university life at oxford, he came to cambridge ignorant of mathematics and in delicate health, which prevented him from reading hard. in spite of this, he was senior wrangler in --a feat which would now be impossible for a newton. he was the calmest and gentlest of human beings, and to his calmness was attributable the fact that he lived till , although when he was twenty the offices refused to insure his life for a year on any terms. those who knew him best regarded him as a man of singular wisdom and refinement. he lived, till he came to london for the later education of his boys, in a small country house at claybrook, near lutterworth, and was proprietor of the 'northampton mercury,' one of the oldest papers in england, founded, i believe, by his grandfather. this claybrook house was the scene of some of our happiest childish days. my aunt was a most devoted mother of four sons, whose early education she conducted in great part herself. in later years she lived in london, and was the most delightful of hostesses. her conversation proved her to possess a full share of the family talents, and although, like her sister, she suffered from deafness, a talk with her was, to my mind at least, as great a treat as a talk with the most famous performers in the social art. after her husband's death, she was watched by her youngest son, frank, who had become an artist, with a tender affection such as is more frequently exhibited by a daughter to an infirm father. she died on october , , and has been followed by two of her sons, henry and frank. the two surviving sons, edward and albert venn dicey, vinerian professor of law at oxford, are both well known in the literary and political world. i must now tell so much as i know, and is relevant to my purpose, of my father's life. james stephen, fourth at least of the name, and third son of the master, was born january , , at lambeth, during his father's visit to england. he had an attack of small-pox during his infancy, which left a permanent weakness of eyesight. the master's experience had not taught him the evils of desultory education. james, the younger, was, i believe, under various schoolmasters, of whom i can only mention john prior estlin, of st. michael's hill, bristol, a unitarian, and the rev. h. jowett, of little dunham, norfolk, who was one of the adherents to evangelicalism. the change probably marks the development of his father's convictions. he entered trinity hall, cambridge, in . at that time the great evangelical leader at cambridge was isaac milner, the president of queens' college. milner's chief followers were william farish, of magdalene, and joseph jowett, of trinity hall, both of them professors. farish, as i have said, married my grandfather's sister, and the colleges were probably selected for my father and his brother george with a view to the influence of these representatives of the true faith. the 'three or four years during which i lived on the banks of the cam,' said my father afterwards,[ ] 'were passed in a very pleasant, though not a very cheap, hotel. but had they been passed at the clarendon, in bond street, i do not think that the exchange would have deprived me of any aids for intellectual discipline or for acquiring literary and scientific knowledge.' that he was not quite idle i infer from a copy of brotier's 'tacitus' in my possession with an inscription testifying that it was given to him as a college prize. he took no university honours, took the degree of ll.b. in , and was called to the bar at lincoln's inn november , . his father had just become master in chancery, and was able to transfer some of his clients to the son. james the younger thus gained some experience in colonial matters, and 'employed himself in preparing a digest of the colonial laws in general.'[ ] he obtained leave from the third earl bathurst, then and for many years afterwards the head of the colonial department, to examine the official records for this purpose. in lord bathurst, who was in general sympathy with the opinions of the clapham sect, appointed james stephen counsel to the colonial department. his duties were to report upon all acts of colonial legislature. he received a fee of three guineas for each act, and the office at first produced about _l._ a year. after a time the post became more laborious. he was receiving , _l._ a year some ten years after his appointment, with, of course, a corresponding increase of work.[ ] the place was, however, compatible with the pursuit of the profession, and my father in a few years was making , _l._ a year, and was in a position which gave him as fair a prospect of obtaining professional honours as was enjoyed by any man of his standing. the earliest notice which i have found of him from an outsider is a passage in crabb robinson's diaries.[ ] robinson met him on july , , and describes him as a 'pious sentimentalist and moralist,' who spoke of his prospects 'with more indifference than was perhaps right in a layman.' the notice is oddly characteristic. from my father was for nine years a member of the committee of the church missionary society, after which time his occupations made attendance impossible. i have already indicated the family connection with the clapham sect, and my father's connection was now to be drawn still closer. on december , , he married jane catherine venn, second daughter of the rev. john venn, of clapham. iv. the venns my brother was of opinion that he inherited a greater share of the venn than of the stephen characteristics. i certainly seem to trace in him a marked infusion of the sturdy common sense of the venns, which tempered the irritable and nervous temperament common to many of the stephens. the venns were of the very blue blood of the party. they traced their descent through a long line of clergymen to the time of elizabeth.[ ] the troubles of two loyalist venns in the great rebellion are briefly commemorated in walker's 'sufferings of the clergy.' the first venn who is more than a name was a richard venn, who died in . his name occasionally turns up in the obscurer records of eighteenth-century theology. he was rector of st. antholin's, in the city of london, and incurred the wrath of the pugnacious warburton and of warburton's friend (in early days) conyers middleton. he ventured to call middleton an 'apostate priest'; and middleton retorted that if he alluded to a priest as the 'accuser,' everyone would understand that he meant to refer to mr. venn. in fact, venn had the credit of having denounced thomas bundle, who, according to pope, 'had a heart,' and according to venn was a deist in disguise. bundle's reputation was so far damaged that his theology was thought too bad for gloucester, and, like other pieces of damaged goods, he was quartered upon the irish church. richard venn married the daughter of the jacobite conspirator john ashton, executed for high treason in . his son henry, born march , , made a more enduring mark and became the chief light of the movement which was contemporaneous with that led by wesley and whitefield, though, as its adherents maintained, of independent origin. he was a sturdy, energetic man. as a boy he had shown his principles by steadily thrashing the son of a dissenting minister till he became the terror of the young schismatic. he played (his biographer says) in for surrey against all england, and at the end of the match gave his bat to the first comer, saying, 'i will never have it said of me, well struck, parson!' he was ordained a few days later, and was 'converted by law's "serious call."' while holding a curacy at clapham he became a friend of john thornton, father of the better known henry thornton. john was a friend of john newton and of the poet cowper, to whom he allowed money for charitable purposes, and both he and his son were great lights at clapham. from to venn was vicar of huddersfield, and there became famous for eloquence and energy. his 'complete duty of man'--the title is adopted in contrast to the more famous 'whole duty of man'--was as the sound of a trumpet to the new party. for three generations it was the accepted manual of the sect and a trusted exposition of their characteristic theology. venn's health suffered from his pastoral labours at huddersfield; and from till near his death (june , ) he was rector of yelling, in huntingdonshire. there his influence extended to the neighbouring university of cambridge. the most eminent cambridge men of the day, paley, and watson, and hey, were tending to a theology barely distinguishable from the unitarianism which some of them openly adopted. but a chosen few, denounced by their enemies as methodistical, sought the spiritual guidance of henry venn. the most conspicuous was charles simeon ( - ), who for many years was the object of veneration and of ridicule for his uncouth eloquence in the pulpit of trinity church. even to my own day, his disciples and disciples' disciples were known to their opponents as 'sims.'[ ] john venn, son of this henry venn, born at clapham in , was brought up in the true faith. he was a pupil of joseph milner, elder brother of the more famous isaac milner, and was afterwards, like his father, at sidney sussex college. simeon was one of his intimate friends. in venn became rector of clapham; and there provided the spiritual food congenial to the thorntons, the shores, the macaulays, the wilberforces, and the stephens. the value of his teaching may be estimated by any one who will read three volumes of sermons published posthumously in . he died july , ; but his chief claim to remembrance is that he was the projector and one of the original founders of the church missionary society, in , which was, as it has continued to be, the most characteristic product of the evangelical party.'[ ] john venn's children were of course intimate with the stephens. in later life the sons, henry and john, had a great influence upon my father; henry in particular was a man of very remarkable character. he was educated by his father till , when he was sent to live with farish, then lucasian professor and resident at chesterton, close to cambridge. he was at queen's college, then flourishing under the patronage of evangelical parents attracted by milner's fame; was nineteenth wrangler in , and for a time was fellow and tutor of his college. in wilberforce gave him the living of drypool, a suburb of hull, and there in he married martha, fourth daughter of nicholas sykes, of swanland, yorkshire. in he became vicar of st. john's, holloway, in the parish of islington. about he became subject to an affection of the heart caused mainly by his efforts in carrying his wife upstairs during her serious illness. the physician told him that the heart might possibly adapt itself to a new condition, but that the chances were greatly in favour of a fatal end to the illness. he was forced to retire for two years from work, while his wife's illness developed into a consumption. she died march , . venn's closest relations used to speak with a kind of awe of the extraordinary strength of his conjugal devotion. he was entreated to absent himself from some of the painful ceremonials at her funeral, but declined. 'as if anything,' he said, 'could make any difference to me now.' his own health, however, recovered contrary to expectation; and he resolutely took up his duties in life. on october , he was appointed honorary secretary to the church missionary society, having been on the committee since , and he devoted the rest of his life to its service with unflagging zeal. he gave up his living of _l._ a year and refused to take any remuneration for his work. he was appointed by bishop blomfield to a prebend at st. paul's, but received and desired no other preferment. he gradually became infirm, and a few months before his death, january , , was compelled to resign his post. henry venn laboured through life in the interests of a cause which seemed to him among the highest, and which even those who hold entirely different opinions must admit to be a worthy one, the elevation that is, moral and spiritual, of the lower races of mankind. he received no rewards except the approval of his conscience and the sympathy of his fellows; and he worked with an energy rarely paralleled by the most energetic public servant. his labours are described in a rather shapeless book[ ] to which i may refer for full details. but i must add a few words upon his character. venn was not an eloquent man either in the pulpit or on paper; nor can i ascribe him any power of speculative thought. he had been from youth steeped in the evangelical doctrine, and was absolutely satisfied with it to the last. 'i knew,' he once said, 'as a young man all that could be said against christianity, and i put the thoughts aside as temptations of the devil. they have never troubled me since.' nor was he more troubled by the speculative tendencies of other parties in the church. his most obvious mental characteristic was a shrewd common sense, which one of his admirers suggests may have been caught by contagion in his yorkshire living. in truth it was an innate endowment shared by others of his family. in him it was combined with a strong sense of humour which is carefully kept out of his writing, and which, as i used to fancy, must have been at times a rather awkward endowment. the evangelical party has certain weaknesses to which, so far as i know, my uncle contrived to shut his eyes. the humour, however, was always bubbling up in his talk, and combined as it was with invariable cheeriness of spirit, with a steady flow of the strongest domestic affection, and with a vigorous and confident judgment, made him a delightful as well as an impressive companion. although outside of the paths which lead to preferment or to general reputation, he carried a great weight in all the counsels of his party. his judgment, no doubt, entitled him to their respect. though a most devoted clergyman, he had some of the qualities which go to make a thoroughly trustworthy lawyer. he was a marked exception to the famous observation of clarendon that 'the clergymen understand the least, and take the worst measure of human affairs of all mankind that can write and read.' henry venn's example showed that the clergyman's gown need not necessarily imply disqualification for a thorough man of business. he was a man to do thoroughly whatever he undertook. 'what a mercy it is,' said his sister emelia, 'that henry is a good man, for good or bad he could never repent.' his younger brother, john, was a man of much less intellectual force but of singular charm of character. in he became incumbent of a church at hereford in the gift of the simeon trustees, and lived there till his death in , having resigned his living about . he had the simplicity of character of a dr. primrose, and was always overflowing with the kindliest feelings towards his relatives and mankind in general. his enthusiasm was, directed not only to religious ends but to various devices for the physical advantage of mankind. he set up a steam corn mill in hereford, which i believe worked very successfully for the supply of pure flour to his parishioners, and he had theories about the production of pigs and poultry upon which he could dilate with amusing fervour. he showed his principles in a public disputation with a roman catholic priest at hereford. i do not know that either of them converted anybody; but john venn's loveableness was not dependent upon dialectical ability. he was accepted, i may say, as the saint of our family; and aylstone hill, hereford, where he lived with his unmarried sister emelia, (a lady who in common sense and humour strongly resembled her brother henry), was a place of pilgrimage to which my father frequently resorted, and where we all found a model of domestic happiness. the youngest sister, caroline, married the rev. ellis batten, a master at harrow school. he died young in , and she was left with two daughters, the elder of whom, now mrs. russell gurney, survives, and was in early years one of the most familiar members of our inner home circle. i must now speak of my mother. 'in one's whole life,' says gray, 'one can never have any more than a single mother'--a trite observation, he adds, which yet he never discovered till it was too late. those who have made the same discovery must feel also how impossible it is to communicate to others their own experience, and indeed how painful it is even to make the attempt. almost every man's mother, one is happy to observe, is the best of mothers. i will only assert what i could prove by evidence other than my own impressions. my mother, then, must have been a very handsome young woman. a portrait--not a very good one--shows that she had regular features and a fine complexion, which she preserved till old age. her beauty was such as implies a thoroughly good constitution and unbroken health. she was too a rather romantic young lady. she knew by heart all such poetry as was not excluded from the sacred common; she could repeat cowper and wordsworth and campbell and scott, and her children learnt the 'mariners of england' and the 'death of marmion' from her lips almost before they could read for themselves. she accepted, of course, the religious opinions of her family, but in what i may call a comparatively mild form. if she had not the humour of her brother henry and her sister emelia, she possessed an equal amount of common sense. her most obvious characteristic as i knew her was a singular serenity, which indicated a union of strong affection and sound judgment with an entire absence of any morbid tendencies. her devotion to her husband and children may possibly have influenced her estimate of their virtues and talents. but however strong her belief in them, it never betrayed her to partiality of conduct. we were as sure of her justice as of her affection. her servants invariably became attached to her. our old nurse, elizabeth francis, lived with us for forty-three years, and her death in was felt as a deep family sorrow. the quaint yorkshire cook, whose eccentricities had given trouble and whose final parting had therefore been received with equanimity on the eve of a journey abroad, was found calmly sitting in our kitchen when we returned, and announcing, truly as it turned out, that she proposed to stay during the rest of my mother's life. but this domestic loyalty was won without the slightest concession of unusual privileges. her characteristic calmness appeared in another way. she suffered the heaviest of blows in the death of her husband, after forty-five years of unbroken married happiness, and of her eldest son. on both occasions she recovered her serenity and even cheerfulness with marked rapidity, not certainly from any want of feeling, but from her constitutional incapacity for dwelling uselessly upon painful emotions. she had indeed practised cheerfulness as a duty in order to soothe her husband's anxieties, and it had become part of her character. the moral equilibrium of her nature recovered itself spontaneously as wounds cure by themselves quickly in thoroughly sound constitutions. she devoted her spare time in earlier years and almost her whole time in later life to labours among the poor, but was never tempted to mere philanthropic sentimentalism. a sound common sense, in short, was her predominant faculty; and, though her religious sentiments were very strong and deep, she was so far from fanatical that she accepted with perfect calmness the deviations of her children from the old orthodox faith. my brother held, rightly as i think, that he inherited a large share of these qualities. to my father himself, the influence of such a wife was of inestimable value. he, the most nervous, sensitive of men, could always retire to the serene atmosphere of a home governed by placid common sense and be soothed by the gentlest affection. how necessary was such a solace will soon be perceived. v. james stephen, colonial under-secretary the young couple began prosperously enough. my father's business was increasing; and after the peace they spent some summer vacations in visits to the continent. they visited switzerland, still unhackneyed, though byron and shelley were celebrating its charms. long afterwards i used to hear from my mother of the superlative beauties of the wengern alp and the staubbach (though she never, i suspect, read 'manfred'), and she kept up for years a correspondence with a monk of the hospital on the st. bernard. her first child, herbert venn stephen, was born september , ; and about this time a change took place in my father's position. he had a severe illness, caused, it was thought, by over-work. he had for a time to give up his chancery business and then to consider whether he should return to it and abandon the colonial office, or give up the bar to take a less precarious position now offered to him in the office. his doubts of health and his new responsibilities as a father decided him. on january , , he was appointed counsel to the colonial office, and on august following counsel to the board of trade, receiving , _l._ a year for the two offices, and abandoning his private practice. a daughter, frances wilberforce, was born on september , , but died on july following. a quaint portrait in which she is represented with her elder brother, in a bower of roses, is all that remains to commemorate her brief existence. for some time herbert was an only son; and a delicate constitution made his education very difficult. my father hit upon the most successful of several plans for the benefit of his children when, at the beginning of , he made arrangements under which frederick waymouth gibbs became an inmate of our family in order to give my brother a companion. although this plan was changed three years later, frederick gibbs became, as he has ever since remained, a kind of adopted brother to us, and was in due time in the closest intimacy with my brother james fitzjames. after his acceptance of the permanent appointment my father's energies were for twenty-two years devoted entirely to the colonial office. i must dwell at some length upon his character and position, partly for his sake and partly because it is impossible without understanding them to understand my brother's career. my brother's whole life was profoundly affected, as he fully recognised, by his father's influence. fitzjames prefixed a short life of my father to a posthumous edition of the 'essays in ecclesiastical biography.' the concluding sentence is significant of the writer's mood. 'of sir james stephen's private life and character,' he says, 'nothing is said here, as these are matters with which the public has no concern, and on which the evidence of his son would not be impartial.' my brother would, i think, have changed that view in later years. i, at any rate, do not feel that my partiality, whatever it may be, is a disqualification for attempting a portrait. and, though the public may have no right to further knowledge, i think that such part of the public as reads these pages may be the better for knowing something more of a man of whom even a son may say that he was one of the conspicuously good and able men of his generation. the task, however, is no easy one. his character, in the first place, is not one to be defined by a single epithet. 'surely,' said his friend sir henry taylor to him upon some occasion, 'the simple thing to do is so and so.' he answered doubtfully, adding, 'the truth is i am _not_ a simple man.' 'no,' said taylor, 'you are the most composite man that i have met with in all my experience of human nature.'[ ] taylor entered the colonial office in the beginning of , and soon formed an intimate and lifelong friendship with his colleague. his autobiography contains some very vivid records of the impression made by my father's character upon a very fine observer in possession of ample opportunities for knowledge. it does something, though less than i could wish, to diminish another difficulty which encounters me. my father's official position necessarily throws an impenetrable veil over the work to which his main energies were devoted. his chief writings were voluminous and of great practical importance: but they repose in the archives of the colonial office; and even such despatches of his as have seen the light are signed by other names, and do not necessarily represent his opinions. 'the understanding,' says my brother in the 'life,' 'upon which permanent offices in the civil service of the crown are held is that those who accept them shall give up all claim to personal reputation on the one hand and be shielded from personal responsibility on the other.' of this compact, as fitzjames adds, neither my father nor his family could complain. his superiors might sometimes gain credit or incur blame which was primarily due to the adoption of his principles. he was sometimes attacked, on the other hand, for measures attributed to his influence, but against which he had really protested, although he was precluded from any defence of his conduct. to write the true history of our colonial policy in his time would be as much beyond my powers as it is outside my purpose; to discriminate his share in it would probably be now impossible for anyone. i can only take a few hints from sir henry taylor and from my brother's account which will sufficiently illustrate some of my father's characteristics. 'for a long period,' says taylor,[ ] 'stephen might better have been called the "colonial department" itself than "counsel to the colonial department."' during lord glenelg's tenure of office ( - ), and for many years before and after, 'he literally ruled the colonial empire.'[ ] this involved unremitting labour. taylor observes that stephen 'had an enormous appetite for work,' and 'rather preferred not to be helped. i,' he adds, humorously, 'could make him perfectly welcome to any amount of it.' for years he never left london for a month, and, though in the last five years preceding his retirement in , he was absent for rather longer periods, he took a clerk with him and did business in the country as regularly as in town. his duties were of the most various kind. the colonies, as my brother observes, were a collection of states varying from youthful nations like canada down to a small settlement of germans on the rock of heligoland; their populations differed in race, laws, religion, and languages; the authority of the crown varied from absolute power over an infant settlement to supremacy over communities in some essential respects independent. my father's duty was to be familiar with every detail of these complicated relations, to know the state of parties and local politics in each colony, and to be able to advise successive secretaries of state who came without special preparation to the task. he had to prepare drafts of all important despatches and of the numerous acts of parliament which were required during a period of rapid and important changes. 'i have been told,' says my brother, elsewhere,[ ] that 'he was a perfectly admirable under-secretary of state, quick, firm, courageous, and a perfect master of his profession and of all the special knowledge which his position required, and which, i believe, no other man in england possessed to anything like the same extent.' a man of long experience, vast powers of work, and decided views naturally obtained great influence with his superiors; and that such an influence was potent became generally believed among persons interested in and often aggrieved by the policy of the government. stephen was nicknamed as 'king stephen,' or 'mr. over-secretary stephen,' or 'mr. mother-country stephen.' the last epithet, attributed to charles buller, meant that when the colonies were exhorted to pay allegiance to the mother country they were really called upon to obey the irrepressible under-secretary. i dimly divine, though i am not much of a politician, that there is an advantage in criticising the permanent official in a department. he cannot answer an attack upon him, and it is also an attack upon the superior who has yielded to his influence. at any rate, though my father received the warmest commendation from his official superiors, he acquired a considerable share of unpopularity. for this there were other reasons, of which i shall presently speak. little as i can say of the details of this policy in which he was concerned, there are one or two points of which i must speak. my father had accepted the appointment, according to taylor, partly with the view of gaining an influence upon the slavery question. in this, says taylor, he was eminently successful, and his success raised the first outcry against him.[ ] his family and friends were all, as i have shown, deeply engaged in the anti-slavery agitation. as an official he could of course take no part in such action, and his father had to give solemn assurances that the son had given him no information. but the power of influencing the government in the right direction was of equal importance to the cause. the elaborate act, still in force, by which previous legislation against the slave trade was finally consolidated and extended was passed in ( george iv. cap. ). it was drawn by my father and dictated by him in one day and at one sitting.[ ] it fills twenty-three closely printed octavo pages. at this time the government was attempting to adopt a middle course between the abolitionists and the planters by passing what were called 'meliorating acts,' acts, that is, for improving the treatment of the slaves. the colonial assemblies declined to accept the proposals. the colonial office remonstrated, obtained reports and wrote despatches, pointing out any abuses discovered: the despatches were laid before parliament and republished by zachary macaulay in the 'anti-slavery reporter.' agitation increased. an insurrection of slaves in jamaica in , cruelly suppressed by the whites, gave indirectly a death blow to slavery. abolition, especially after the reform bill, became inevitable, but the question remained whether the grant of freedom should be immediate or gradual, and whether compensation should be granted to the planters. the problem had been discussed by stephen, taylor, and lord howick, afterwards earl grey ( - ), and various plans had been considered. in march , however, mr. stanley, afterwards lord derby, became head of the colonial office; and the effect was at first to reduce stephen and taylor to their 'original insignificance.' they had already been attacked in the press for taking too much upon themselves, and stanley now prepared a measure without their assistance. he found that he had not the necessary experience for a difficult task, and was soon obliged to have recourse to stephen, who prepared the measure which was finally passed. the delay had made expedition necessary if slavery was not to continue for another year. my father received notice to draw the act on saturday morning. he went home and completed his task by the middle of the day on monday. the act ( & william iv. c. ) contains sixty-six sections, fills twenty-six pages in the octavo edition of the statute-book, and creates a whole scheme of the most intricate and elaborate kind. the amanuensis to whom it was dictated used to tell the story as an illustration of his own physical powers. at that time, as another clerk in the office tells my brother, 'it was no unusual thing for your father to dictate before breakfast as much as would fill thirty sides of office folio paper,' equal to about ten pages of the 'edinburgh review,' the exertion, however, in this instance was exceptional: only upon one other occasion did my father ever work upon a sunday; it cost him a severe nervous illness and not improbably sowed the seed of later attacks.[ ] i can say little of my father's action in later years. on september , , he was appointed to the newly created office of assistant under-secretary of state. he had, says taylor, for many years done the work of the under-secretary, and he objected to doing it any longer on the same terms. the under-secretary complained to lord melbourne that his subordinate desired to supplant him, and got only the characteristic reply, 'it looks devilishly like it.'[ ] in he had to retire, and my father became under-secretary in his place, with a salary of , _l._ a year, on february of that year, and at the same time gave up his connection with the board of trade. he was actively concerned in the establishment of responsible government in canada. the relations with that colony were, as my brother says, 'confused and entangled in every possible way by personal and party questions at home and by the violent dissensions which existed in canada itself.' the difficulty was aggravated, he adds, by the fact that my father, whatever his personal influence, had no authority whatever; and although his principles were ultimately adopted he had constantly to take part in measures which he disapproved. 'stephen's opinions,' says taylor, 'were more liberal than those of most of his chiefs, and at one period he gave more power than he intended to a canadian assembly from placing too much confidence in their intentions.'[ ] upon this matter, however, taylor admits that he was not fully informed. i will only add that my father appears to have shared the opinions then prevalent among the liberal party that the colonies would soon be detached from the mother country. on the appointment of a governor-general of canada, shortly before his resignation of office, he observes in a diary that it is not unlikely to be the last that will ever be made.[ ] i have already noticed my father's unpopularity. it was a not unlikely result of exercising a great and yet occult influence upon a department of government which is likely in any case to be more conspicuous for its failures than for its successes. there were, however, more personal reasons which i think indicate his peculiar characteristics. i have said enough to illustrate his gluttony of work. i should guess that, without intending it, he was also an exacting superior. he probably over-estimated the average capacity for work of mankind, and condemned their indolence too unsparingly. certainly his estimate of the quantity of good work got out of officials in a public office was not a high one. nor, i am sure, did he take a sanguine view of the utility of such work as was done in the colonial office. 'colonial office being an impotency' (as carlyle puts it in his 'reminiscences,' 'as stephen inarticulately, though he never said or whispered it, well knew), what could an earnest and honest kind of man do but try to teach you how not to do it?'[ ] i fancy that this gives in carryle's manner the unpleasant side of a true statement. my father gave his whole life to work, which he never thought entirely satisfactory, although he did his duty without a word of complaint. once, when advising taylor to trust rather to literature than to government employment, he remarked, 'you may write off the first joints of your fingers for them, and then you may write off the second joints, and all that they will say of you is, "what a remarkably short-fingered man!"'[ ] but he had far too much self-respect to grumble at the inevitable results of the position. my father, however, was a man of exquisitely sensitive nature--a man, as my mother warned his children, 'without a skin,' and he felt very keenly the attacks of which he could take no notice. in early days this had shown itself by a shyness 'remarkable,' says taylor, beyond all 'shyness that you could imagine in anyone whose soul had not been pre-existent in a wild duck.'[ ] his extreme sensibility showed itself too in other ways. he was the least sanguine of mankind. he had, as he said in a letter, 'a morbidly vivid perception of possible evils and remote dangers.' a sensitive nature dreads nothing so much as a shock, and instinctively prepares for it by always anticipating the worst. he always expected, if i may say so, to be disappointed in his expectations. the tendency showed itself in a general conviction that whatever was his own must therefore be bad. he could not bear to have a looking-glass in his room lest he should be reminded of his own appearance. 'i hate mirrors vitrical and human,' he says, when wondering how he might appear to others. he could not bear that his birthday should be even noticed, though he did not, like swift, commemorate it by a remorseful ceremonial. he shrank from every kind of self-assertion; and in matters outside his own province often showed to men of abilities very inferior to his own a deference which to those who did not know him might pass for affectation. the life of a recluse had strong attractions for him. he was profoundly convinced that the happiest of all lives was that of a clergyman, who could devote himself to study and to the quiet duties of his profession. circumstances had forced a different career upon him. he had as a very young man taken up a profession which is not generally supposed to be propitious to retiring modesty; and was ever afterwards plunged into active business, which brought him into rough contact with politicians and men of business of all classes. the result was that he formed a manner calculated to shield himself and keep his interlocutors at a distance. it might be called pompous, and was at any rate formal and elaborate. the natural man lurked behind a barrier of ceremony, and he rarely showed himself unless in full dress. he could unbend in his family, but in the outer world he put on his defensive armour of stately politeness, which even for congenial minds made familiarity difficult if it effectually repelled impertinence. but beneath this sensitive nature lay an energetic and even impetuous character, and an intellect singularly clear, subtle, and decisive. his reasons were apt to be complicated, but he came to very definite results, and was both rapid and resolute in action. he had 'a strong will,' says taylor, 'and great tenacity of opinion. when he made a mistake, which was very seldom considering the prodigious quantity of business he despatched, his subordinates could rarely venture to point it out; he gave them so much trouble before he could be evicted from his error.' in private life, as taylor adds, his friends feared to suggest any criticisms; not because he resented advice but because he suffered so much from blame. another peculiarity was oddly blended with this. among his topics of self-humiliation, sufficiently frequent, one was his excess of 'loquacity.' a very shy man, it is often remarked, may shrink from talking, but when he begins to talk he talks enormously. my father, at any rate, had a natural gift for conversation. he could pour out a stream of talk such as, to the best of my knowledge, i have never heard equalled. the gift was perhaps stimulated by accidents. the weakness of his eyes had forced him to depend very much upon dictation. i remember vividly the sound of his tread as he tramped up and down his room, dictating to my mother or sister, who took down his words in shorthand and found it hard to keep pace with him. even his ordinary conversation might have been put into print with scarcely a correction, and was as polished and grammatically perfect as his finished writing. the flow of talk was no doubt at times excessive. taylor tells of an indignant gentleman who came to his room after attempting to make some communication to the under-secretary. mr. stephen, he said, had at once begun to speak, and after discoursing for half an hour without a moment's pause, courteously bowed the gentleman out, thanking him for the valuable information which still remained unuttered. sir james stephen, said lord monteagle to carlyle, 'shuts his eyes on you and talks as if he were dictating a colonial despatch.'[ ] this refers to a nervous trick of shyness. when talking, his eyelids often had a tremulous motion which concealed the eyes themselves, and gave to at least one stranger the impression that he was being addressed by a blind man. the talk, however, was always pointed and very frequently as brilliant as it was copious. with all the monotony of utterance, says taylor, 'there was such a variety and richness of thought and language, and often so much wit and humour, that one could not help being interested and attentive.' on matters of business, he adds, 'the talk could not be of the same quality and was of the same continuity.' he gives one specimen of the 'richness of conversational diction' which i may quote. my father mentioned to taylor an illness from which the son of lord derby was suffering. he explained his knowledge by saying that lord derby had spoken of the case to him in a tone for which he was unprepared. 'in all the time when i saw him daily i cannot recollect that he ever said one word to me about anything but business; and _when the stupendous glacier, which had towered over my head for so many years, came to dissolve and descend upon me in parental dew, you may imagine, &c., &c._[ ] my brother gives an account to which i can fully subscribe, so far as my knowledge goes. our father's printed books, he says, show his mind 'in full dress, as under restraint and subject to the effect of habitual self-distrust. they give no idea of the vigour and pungency and freedom with which he could speak or let himself loose or think aloud as he did to me. macaulay was infinitely more eloquent, and his memory was a thing by itself. carlyle was striking and picturesque, and, after a fashion, forcible to the last degree. john austin discoursed with the greatest dignity and impressiveness. but my father's richness of mind and union of wisdom, good sense, keenness and ingenuity, put him, in my opinion, quite on the same sort of level as these distinguished men; and gave me a feeling about him which attuned itself with and ran into the conviction that he was also one of the very kindest, most honourable, and best men i ever knew in my whole life.' from my recollection, which is less perfect than was my brother's, i should add that one thing which especially remains with me was the stamp of fine literary quality which marked all my father's conversation. his talk, however copious, was never commonplace; and, boy as i was when i listened, i was constantly impressed by the singular skill with which his clear-cut phrases and lively illustrations put even familiar topics into an apparently new and effective light. the comparison made by my brother between my father's talk and his writings may be just, though i do not altogether agree with it. the 'essays in ecclesiastical biography,' by which he is best known, were written during the official career which i have described. the composition was to him a relaxation, and they were written early in the morning or late at night, or in the intervals of his brief holidays. i will not express any critical judgment of their qualities; but this i will say: putting aside macaulay's 'essays,' which possess merits of an entirely different order, i do not think that any of the collected essays republished from the 'edinburgh review' indicate a natural gift for style equal to my father's. judging from these, which are merely the overflowing of a mind employed upon other most absorbing duties, i think that my father, had he devoted his talents to literature, would have gained a far higher place than has been reached by any of his family.[ ] my father gave in his essays a sufficient indication of his religious creed. that creed, while it corresponded to his very deepest emotions, took a peculiar and characteristic form. his essay upon the 'clapham sect'[ ] shows how deeply he had imbibed its teaching, while it yet shows a noticeable divergence. all his youthful sympathies and aims had identified him with the early evangelicals. as a lad he had known granville sharp, the patriarch of the anti-slavery movement; and till middle life he was as intimate as the difference of ages permitted with wilberforce and with thomas gisborne, the most refined if not most effective preacher of the party. he revered many of the party from the bottom of his heart. his loving remembrance of his intercourse with them is shown in every line of his description, and to the end of his life he retained his loyalty to the men, and, as he at least thought, to their creed. the later generation, which called itself evangelical, repudiated his claim. he was attacked in their chief organ. when some remonstrance was made by his brother-in-law, henry venn, he wrote to the paper (i quote from memory), 'i can only regret that any friend of mine should have stooped to vindicate me from any censure of yours'; and declined further controversy. the occasion of this was an attack which had been made upon him at cambridge, where certain learned dons discovered on his appointment to the professorship of history that he was a 'cerinthian.' i do not pretend to guess at their meaning. anyhow he had avowed, in an 'epilogue' to his essays, certain doubts as to the meaning of eternal damnation--a doctrine which at that time enjoyed considerable popularity. the explanation was in part simple. 'it is laid to my charge,' he said, 'that i am a latitudinarian. i have never met with a single man who, like myself, had passed a long series of years in a free intercourse with every class of society who was not more or less what is called a latitudinarian.' in fact, he had discovered that clapham was not the world, and that the conditions of salvation could hardly include residence on the sacred common. this conviction, however, took a peculiar form in his mind. his essays show how widely he had sympathised with many forms of the religious sentiment. he wrote with enthusiasm of the great leaders of the roman catholic church; of hildebrand and st. francis, and even of ignatius loyola; and yet his enthusiasm does not blind him to the merits of martin luther, or baxter, or wesley, or wilberforce. there were only two exceptions to his otherwise universal sympathy. he always speaks of the rationalists in the ordinary tone of dislike; and he looks coldly upon one school of orthodoxy. 'sir james stephen,' as was said by someone, 'is tolerant towards every church except the church of england.' this epigram indicated a fact. although he himself strenuously repudiated any charge of disloyalty to the church whose ordinances he scrupulously observed, he was entirely out of sympathy with the specially anglican movement of later years. this was no doubt due in great part to the intensely strong sympathies of his youth. when the oxford movement began he was already in middle life and thoroughly steeped in the doctrines which they attacked. he resembled them, indeed, in his warm appreciation of the great men of catholicism. but the old churchmen appealed both to his instincts as a statesman and to his strong love of the romantic. the church of the middle ages had wielded a vast power; men like loyola and xavier had been great spiritual heroes. but what was to be said for the church of england since the reformation? henry martyn, he says, in the 'clapham sect,' is 'the one heroic name which adorns her annals since the days of elizabeth. her apostolic men either quitted or were cast out of her communion. her _acta sanctorum_ may be read from end to end with a dry eye and an unquickened pulse.' he had perhaps heard too many sermons. 'dear mother church,' he says after one such experience, 'thy spokesmen are not selected so as to create any danger that we should be dazzled by human eloquence or entangled by human wisdom.' the church of england, as he says elsewhere ('baxter'), afforded a refuge for three centuries to the great, the learned, and the worldly wise, but was long before it took to the nobler end of raising the poor, and then, as he would have added, under the influence of the clapham sect. the church presented itself to him mainly as the religious department of the state, in which more care was taken to suppress eccentricity than to arouse enthusiasm; it was eminently respectable, but at the very antipodes of the heroic. could he then lean to rome? he could not do so without damning the men he most loved, even could his keen and in some ways sceptical intellect have consented to commit suicide. or to the romanising party in the church? the movement sprang from the cloister, and he had breathed the bracing air of secular life. he was far too clear-headed not to see whither they were tending. to him they appeared to be simply feeble imitations of the real thing, dabbling with dangerous arguments, and trying to revive beliefs long sentenced to extinction. and yet, with his strong religious beliefs, he could not turn towards the freethinkers. he perceived indeed with perfect clearness that the christian belief was being tried by new tests severer than the old, and that schools of thought were arising with which the orthodox would have to reckon. occasional intimations to this effect dropped from him in his conversations with my brother and others. but, on the whole, the simple fact was that he never ventured to go deeply into the fundamental questions. his official duties left him little time for abstract thought; and his surpassingly ingenious and versatile mind employed itself rather in framing excuses for not answering than in finding thorough answers to possible doubts. he adopted a version of the doctrine _crede ut intelligas_, and denounced the mere reasoning machines like david hume who appealed unequivocally to reason. but what the faculty was which was to guide or to overrule reason in the search for truth was a question to which i do not think that he could give any distinct answer. he was too much a lover of clearness to be attracted by the mysticism of coleridge, and yet he shrank from the results of seeing too clearly. i have insisted upon this partly because my father's attitude greatly affected my brother, as will be presently seen. my brother was not a man to shrink from any conclusions, and he rather resented the humility which led my father, in the absence of other popes, to attach an excessive importance to the opinions of henry and john venn--men who, as fitzjames observes, were, in matters of speculative inquiry, not worthy to tie his shoes. meanwhile, as his health became weaker in later years, my father seemed to grow more weary of the secular world, and to lean more for consolation under anxiety to his religious beliefs. whatever doubts or tendencies to doubt might affect his intellect, they never weakened his loyalty to his creed. he spoke of christ, when such references were desirable, in a tone of the deepest reverence blended with personal affection, which, as i find, greatly impressed my brother. often, in his letters and his talk, he would dwell upon the charm of a pious life, free from secular care and devoted to the cultivation of religious ideals in ourselves and our neighbours. on very rare occasions he would express his real feelings to companions who had mistaken his habitual reserve for indifference. we had an old ivory carving, left to him in token of gratitude by a gentleman whom he had on some such occasion solemnly reproved for profane language, and who had at the moment felt nothing but irritation. the effect of these tendencies upon our little domestic circle was marked. my father's occupations naturally brought him into contact with many men of official and literary distinction. some of them became his warm friends. besides henry taylor, of whom i have spoken, taylor's intimate friends, james spedding and aubrey de vere, were among the intimates of our household; and they and other men, younger than himself, often joined him in his walks or listened to his overflowing talk at home. a next-door neighbour for many years was nassau senior, the political economist, and one main author of the poor law of . senior, a very shrewd man of the world, was indifferent to my father's religious speculations. yet he and his family were among our closest friends, and in habits of the most familiar intercourse with us. with them was associated john austin, regarded by all the utilitarians as the profoundest of jurists and famous for his conversational powers; and mrs. austin, a literary lady, with her daughter, afterwards lady duff gordon. i think of her (though it makes me feel old when i so think) as lucy austin. she was a brilliant girl, reported to keep a rifle and a skull in her bedroom. she once startled the sense of propriety of her elders by performing in our house a charade, in which she represented a dying woman with a 'realism'--to use the modern phrase--worthy of madame sarah bernhardt. other visitors were occasionally attracted. my father knew john mill, though never, i fancy, at all intimately. he knew politicians such as charles greville, the diarist, who showed his penetration characteristically, as i have been told, by especially admiring my mother as a model of the domestic virtues which he could appreciate from an outside point of view. we looked, however, at the world from a certain distance, and, as it were, through a veil. my father had little taste for general society. it had once been intimated to him, as he told me, that he might find admission to the meetings of holland house, where, as macaulay tells us, you might have the privilege of seeing mackintosh verify a reference to thomas aquinas, and hearing talleyrand describe his ride over the field of austerlitz. my father took a different view. he declined to take advantage of this opening into the upper world, because, as he said, i don't know from what experience, the conversation turned chiefly upon petty personal gossip. the feasts of the great were not to his taste. he was ascetic by temperament. he was, he said, one of the few people to whom it was the same thing to eat a dinner and to perform an act of self-denial. in fact, for many years he never ate a dinner, contenting himself with a biscuit and a glass of sherry as lunch, and an egg at tea, and thereby, as the doctors said, injuring his health. he once smoked a cigar, and found it so delicious that he never smoked again. he indulged in snuff until one day it occurred to him that snuff was superfluous; when the box was solemnly emptied out of the window and never refilled. long sittings after dinner were an abomination to him, and he spoke with horror of his father's belief in the virtues of port wine. his systematic abstemiousness diminished any temptation to social pleasures of the ordinary kind. his real delight was in quieter meetings with his own family--with stephens, and diceys, and garratts, and above all, i think, with henry and john venn. at their houses, or in the country walks where he could unfold his views to young men, whose company he always enjoyed, he could pour out his mind in unceasing discourse, and be sure of a congenial audience. our household must thus be regarded as stamped with the true evangelical characteristics--and yet with a difference. the line between saints and sinners or the church and the world was not so deeply drawn as in some cases. we felt, in a vague way, that we were, somehow, not quite as other people, and yet i do not think that we could be called pharisees. my father felt it a point of honour to adhere to the ways of his youth. like jonadab, the son of rechab, as my brother observes, he would drink no wine for the sake of his father's commandments (which, indeed, is scarcely a felicitous application after what i have just said). he wore the uniform of the old army, though he had ceased to bear unquestioning allegiance. we never went to plays or balls; but neither were we taught to regard such recreations as proofs of the corruption of man. my father most carefully told us that there was nothing intrinsically wrong in such things, though he felt strongly about certain abuses of them. at most, in his favourite phrase, they were 'not convenient.' we no more condemned people who frequented them than we blamed people in hindostan for riding elephants. a theatre was as remote from us as an elephant. and therefore we grew up without acquiring or condemning such tastes. they had neither the charm of early association nor the attraction of forbidden fruit. to outsiders the household must have been pervaded by an air of gravity, if not of austerity. but we did not feel it, for it became the law of our natures, not a law imposed by external sanctions. we certainly had a full allowance of sermons and church services; but we never, i think, felt them to be forced upon us. they were a part, and not an unwelcome part, of the order of nature. in another respect we differed from some families of the same creed. my father's fine taste and his sensitive nature made him tremblingly alive to one risk. he shrank from giving us any inducement to lay bare our own religious emotions. to him and to our mother the needless revelation of the deeper feelings seemed to be a kind of spiritual indelicacy. to encourage children to use the conventional phrases could only stimulate to unreality or actual hypocrisy. he recognised, indeed, the duty of impressing upon us his own convictions, but he spoke only when speaking was a duty. he read prayers daily in his family, and used to expound a few verses of the bible with characteristic unction. in earlier days i find him accusing himself of a tendency to address 'homiletical epistles' to his nearest connections; but he scrupulously kept such addresses for some adequate occasion in his children's lives. we were, indeed, fully aware, from a very early age, of his feelings, and could not but be continuously conscious that we were under the eye of a father governed by the loftiest and purest motives, and devoting himself without stint to what he regarded as his duty. he was a living 'categorical imperative.' 'did you ever know your father do a thing because it was pleasant?' was a question put to my brother, when he was a small boy, by his mother. she has apparently recorded it for the sake of the childish answer: 'yes, once--when he married you.' but we were always conscious of the force of the tacit appeal. i must not give the impression that he showed himself a stern parent. i remember that when his first grandchild was born, i was struck by the fact that he was the most skilful person in the family at playing with the baby. once, when some friends upon whom he was calling happened to be just going out, he said, 'leave me the baby and i shall be quite happy.' several little fragments of letters with doggerel rhymes and anecdotes suited for children recall his playfulness with infants, and as we grew up, although we learnt to regard him with a certain awe, he conversed with us most freely, and discoursed upon politics, history, and literature, and his personal recollections, as if we had been his equals, though, of course, with a width of knowledge altogether beyond our own. the risk of giving pain to a 'skinless' man was all that could cause any reserve between us; but a downright outspoken boy like my brother soon acquired and enjoyed a position on the most affectionate terms of familiarity. we knew that he loved us; that his character was not only pure but chivalrous; and that intellectually he was a most capable guide into the most delightful pastures. i will conclude by a word or two upon his physical characteristics. no tolerable likeness has been preserved. my father was rather above middle height, and became stout in later years. though not handsome, his appearance had a marked dignity. a very lofty brow was surmounted by masses of soft fine hair, reddish in youth, which became almost white before he died. the eyes, often concealed by the nervous trick i have mentioned, were rather deeply set and of the purest blue. they could flash into visibility and sparkle with indignation or softer emotion. the nose was the nose of a scholar, rather massive though well cut, and running to a sharp point. he had the long flexible lips of an orator, while the mouth, compressed as if cut with a knife, indicated a nervous reserve. the skull was very large, and the whole face, as i remember him, was massive, though in youth he must have been comparatively slender. his health was interrupted by some severe illnesses, and he suffered much at times from headache. his power of work, however, shows that he was generally in good health; he never had occasion for a dentist. he was a very early riser, scrupulously neat in dress, and even fanatical in the matter of cleanliness. he had beautiful but curiously incompetent hands. he was awkward even at tying his shoes; and though he liked shaving himself because, he said, that it was the only thing he could do with his hands, and he shaved every vestige of beard, he very often inflicted gashes. his handwriting, however, was of the very best. he occasionally rode and could, i believe, swim and row. but he enjoyed no physical exercise except walking, a love of which was hereditary. i do not suppose that he ever had a gun or a fishing-rod in his hand. and now, having outlined such a portrait as i can of our home, i begin my brother's life.[ ] footnotes: [footnote : i learn by the courtesy of mr. james young stephen that this james stephen was son of a previous james stephen of ardenbraught, whose brother thomas was provost of dundee and died in . james stephen of ardenbraught had a younger son john, who was great-grandfather of the present mr. oscar leslie stephen. mr. o. l. stephen is father of mr. james young stephen, mr. oscar leslie stephen, junior, and sir alexander condie stephen, k.c.m.g.] [footnote : my friend, professor bonney, kindly refers me to conybeare and philips' _outlines of geology of england and wales_, p. , where there is an account of certain beds of lignite, or imperfect coal, in the neighbourhood of poole. they burn with an odour of bitumen, and, no doubt, misled my great-grandfather. geology was not even outlined in those days.] [footnote : 'parleyings with certain people'--_works_ ( ) xvi. - .] [footnote : see _dictionary of national biography_.] [footnote : redgrave's _dictionary of painters_.] [footnote : i have copies of two pamphlets in which these proceedings are described:--one is entitled 'considerations on imprisonment for debt, fully proving that the confining of the bodies of debtors is contrary to common law, magna charta, statute law, justice, humanity, and policy; and that the practice is more cruel and oppressive than is used in the most arbitrary kingdoms in europe, with an account of various applications, &c.; by james stephen, .' the other pamphlet, to which is prefixed a letter by w. jackson, reprints some of stephen's letters from the new jail, wants a title and is imperfect. see also the _annual register_ for (chronicle), november , for (chronicle), january .] [footnote : that mentioned in the previous note. see also the 'chronicle' of the _annual register_ for november , , and january and november , .] [footnote : the children were william and james (already mentioned); sibella, born about , afterwards married to william maxwell morison, editor of _decisions of court of session_ ( - ); hannah, born about , afterwards married to william farish ( - ), jacksonian professor at cambridge; elizabeth, born about , afterwards married to her cousin, william milner, of comberton, near cambridge; and john, born about .] [footnote : the parish register records his burial on september , .] [footnote : see the trial reported by gurney in _state trials_, pp. - . it lasted from a.m. on monday till . a.m. on tuesday morning.] [footnote : see _slavery delineated_ (preface to vol. i.), where other revolting details are given.] [footnote : _slavery delineated_, i. , .] [footnote : sir george stephen's _life of j. stephen_, p. .] [footnote : reprinted in _hansard's debates_, app. xxv.-cxxii.] [footnote : _hansard's debates_, june , ; and _abbot's diary_, ii. .] [footnote : it is now occupied by my friend dr. robert liveing.] [footnote : for the life of my grandfather, i have relied upon his autobiography and upon the following among other works: _life of the late james stephen_ by his son, sir george stephen, victoria, (this little book, written when the author's memory was failing, is full of singular mistakes, a fact which i mention that i may not be supposed to have overlooked the statements in question but which it is needless to prove in detail); _jottings from memory_ (two interesting little pamphlets privately printed by sir alfred stephen in and ); and wilberforce's _life and letters_ (containing letters and incidental references). in colquhoun's _wilberforce, his friends and his times_ ( ), pp. - , is an account of stephen's relations to wilberforce, chiefly founded upon this. see also roberts' _hannah more_ (several letters); brougham's _speeches_ ( ), i. pp. - (an interesting account partly quoted in sir j. stephen's _clapham sect_, in _essays in ecclesiastical biography_); henry adam's _history of the united states_ ( ), iii. pp. - and elsewhere; walpole's _life of perceval_.] [footnote : he served also in upon a commission of inquiry into the forgery of exchequer bills.] [footnote : serjeant stephen's wife and a daughter died before him. he left two surviving children: sarah, a lady of remarkable ability, author of a popular religious story called _anna; or, the daughter at home_, and a chief founder of the 'metropolitan association for befriending young servants,' who died unmarried, aged , on january , ; and james, who edited some of his father's books, was judge of the county court at lincoln, and died in november . a short notice of the serjeant is in the _law times_ of december , .] [footnote : _life of james stephen_, p. .] [footnote : by his wife, a miss ravenscroft, he had seven children, who all emigrated with him. the eldest, james wilberforce stephen, was fourth wrangler in and fellow of st. john's college, and afterwards a judge in the colony of victoria.] [footnote : his _constitution of a christian church_ ( ) was republished, in , as _churches the many and the one_, with additional notes by his son, the rev. samuel garratt, now rector of st. margaret's, ipswich, and canon of norwich.] [footnote : _lectures_, vol. i. preface.] [footnote : preface to _slavery delineated_, i. pp. lix.-lxx. my grandfather takes some trouble to show--and, as i think, shows conclusively--that the appointment mentioned in the text was not a job, and that it involved a considerable saving of public money. but this matter will interest no one at present.] [footnote : i have to thank mr. bryce, now president of the board of trade, for kindly procuring me the dates of my father's official appointments.] [footnote : communicated by my friend mr. j. dykes campbell.] [footnote : my cousin, dr. john venn, informs me that the first traceable venn was a farmer in broad hembury, devonshire, whose son, william venn, was vicar of otterton from to .] [footnote : _henry venn's life_, published by his grandson, henry venn, in , has gone through several editions.] [footnote : a short life of john venn is prefixed to his _sermons_. he married catherine king on october , , and left seven children:-- . catherine eling, born dec. , , died unmarried, april , . . jane catherine, lady stephen, b. may , , d. february , . . emelia, b. april , , d. feb. . . henry, b. february , , d. january , . . caroline, mrs. ellis batten, b. , d. jan. , . . maria, who died in infancy. . john, b. april , , d. may , .] [footnote : _missionary secretariat of henry venn, b.d._, by the rev. william knight, with introductory chapter by his sons the rev. john venn and the rev. henry venn, .] [footnote : sir h. taylor's _autobiography_ ( ), ii. . taylor was b. october , , and d. october , .] [footnote : _autobiography_, i. .] [footnote : p. .] [footnote : autobiographical fragment.] [footnote : _taylor_, ii. .] [footnote : stephen's _history of the criminal law_, iii. . my brother was generally accurate in such statements, though i cannot quite resist the impression that he may at this time have been under some confusion as to the time employed upon this occasion and the time devoted to the bill of to be mentioned directly.] [footnote : _taylor_, i. - . sir henry taylor says that stanley prepared a measure with sir james graham which was introduced into the house of commons and 'forthwith was blown into the air.' i can find no trace of this in hansard or elsewhere, and as stanley only became colonial secretary (march ) six weeks before introducing the measure which passed, and no parliamentary discussion intervened, i fancy that there must be some error. the facts as stated above seem to be at any rate sufficiently proved by taylor's contemporary letter. according to taylor, stanley's great speech (may , ) upon introducing the government measure was founded upon my father's judicious cramming, and the success of the measure was due to stephen's putting his own design into enactments and mr. stanley's into a preamble. taylor at the time thought that my father had been ill treated, but i have not the knowledge necessary to form any opinion. my brother's _life_ is the authority for the circumstances under which the measure was prepared, and rests on sufficient evidence.] [footnote : _taylor_, i. .] [footnote : _ibid._ ii. .] [footnote : i think it right to notice that in the first edition of t. mozley's _reminiscences_ ( ), i. , there appeared an anecdote of my father in his official capacity which was preposterous on the face of it. it was completely demolished in a letter written by my brother which appeared in the _times_ of july , , and withdrawn in a later edition.] [footnote : _reminiscences_, ii. .] [footnote : _taylor_, i. .] [footnote : _taylor_, ii. .] [footnote : _reminiscences_, ii. .] [footnote : _taylor_, ii. .] [footnote : some of my father's letters are given in macvey napier's correspondence. i think that they are the best in a collection which includes letters from many of the most eminent men of the time. a few others are in the collection of sir h. taylor's correspondence, edited by professor dowden in .] [footnote : the title, of course, was given by sydney smith.] [footnote : my father's children were:-- . herbert venn, b. september , , d. october , . . frances wilberforce, b. september , , d. july , . . james fitzjames, b. march , , d. march , . . leslie, born november , . . caroline emelia, born december , .] chapter ii _early life_ i. childhood in the beginning of my father settled in a house at kensington gore--now hyde park gate. there his second son, james fitzjames, was born on march , . james was the name upon which my grandfather insisted because it was his own. my father, because the name was his own, objected as long as he could, but at last compounded, and averted the evil omen, by adding fitzjames. two other children, leslie and caroline emelia, were born in and at the same house. the kensington of those days was still distinctly separate from london. a high wall divided kensington gardens from the hounslow road; there were still deer in the gardens; cavalry barracks close to queen's gate, and a turnpike at the top of the gloucester road. the land upon which south kensington has since arisen was a region of market gardens, where in our childhood we strolled with our nurse along genuine country lanes. it would be in my power, if it were desirable, to give an unusually minute account of my brother's early childhood. my mother kept a diary, and, i believe, never missed a day for over sixty years. she was also in the habit of compiling from this certain family 'annals' in which she inserted everything that struck her as illustrative of the character of her children. about my brother himself began a fragment of autobiography, which he continued at intervals during the next two or three years. for various reasons i cannot transfer it as a whole to these pages, but it supplies me with some very important indications.[ ] a comparison with my mother's contemporary account of the incidents common to both proves my brother's narrative to be remarkably accurate. indeed, though he disclaimed the possession of unusual powers of memory in general, he had a singularly retentive memory for facts and dates, and amused himself occasionally by exercising his faculty. he had, for example, a certain walking-stick upon which he made a notch after a day's march; it served instead of a diary, and years afterwards he would explain what was the particular expedition indicated by any one of the very numerous notches. although i do not wish to record trifles important only in the eyes of a mother, or interesting only from private associations, i will give enough from these sources to illustrate his early development; or rather to show how much of the later man was already to be found in the infant. it requires perhaps some faith in maternal insight to believe that before he was three months old he showed an uncommon power of 'amusing himself with his own thoughts,' and had 'a calm, composed dignity in his countenance which was quite amusing in so young a creature.' it will be more easily believed that he was healthy and strong, and by the age of six months 'most determined to have his own way.' on august , , wilberforce was looking at the baby, when he woke up, burst into a laugh, and exclaimed 'funny!' a declaration which wilberforce no doubt took in good part, though it seems to have been interpreted as a reflection upon the philanthropist's peculiar figure. my brother himself gives a detailed description of his grandfather from an interview which occurred when the old gentleman was seventy-six and the infant very little more than three years old. he remembers even the room and the precise position of the persons present. he remembers too (and his mother's diary confirms the fact) how in the same year he announced that the reform bill had 'passed.' it was 'a very fine thing,' he said, being in fact a bill stuck upon a newsboy's hat, inscribed, as his nurse informed him, with the words 'reform bill.' although his memory implies early powers of observation, he did not show the precocity of many clever children. he was still learning to read about his fifth birthday, and making, as his mother complains, rather slow progress. but if not specially quick at his lessons, he gave very early and, as it seems to me, very noticeable proofs of thoughtfulness and independence of character. he was, as he remained through life, remarkable for that kind of sturdy strength which goes with a certain awkwardness and even sluggishness. to use a modern phrase, he had a great store of 'potential energy,' which was not easily convertible to purposes of immediate application. his mind swarmed with ideas, which would not run spontaneously into the regulation moulds. his mother's influence is perceptible in an early taste for poetry. in his third year he learnt by heart 'sir john moore's burial,' 'nelson and the north,' wordsworth's 'address to the winds,' and lord f. l. gower's translation of schiller ('when jove had encircled this planet with light') from hearing his brother's repetition. he especially delighted in this bit of schiller and in 'chevy chase,' though he resisted watts' hymns. in the next two or three years he learns a good deal of poetry, and on september , , repeats fifty lines of henry the fifth's speech before agincourt without a fault. 'pilgrim's progress' and 'robinson crusoe' are read in due course as his reading improves, and he soon delights in getting into a room by himself and surrounding himself with books. his religious instruction of course began at the earliest possible period, and he soon learnt by heart many simple passages of the bible. he made his first appearance at family prayers in november , when the ceremony struck him as 'funny,' but he soon became interested and was taught to pray for himself. in his elder brother has nicknamed him the 'little preacher,' from his love of virtuous admonitions. in he confides to his mother that he has invented a prayer for himself which is 'not, you know, a childish sort of invention'; and in he explains that he has followed the advice given in a sermon (he very carefully points out that it was only _advice_, not an order) to pray regularly. avowals of this kind, however, have to be elicited from him by delicate maternal questioning. he is markedly averse to any display of feeling. 'you should keep your love locked up as i do' is a characteristic remark at the age of four to his eldest brother. the effect of the religious training is apparently perceptible in a great tendency to self-analysis. his thoughts sometimes turn to other problems;--in october, , for example, he asks the question which has occurred to so many thoughtful children,'how do we know that the world is not a dream?'--but he is chiefly interested in his own motives. he complains in january that he has naughty thoughts. his father tells him to send them away without even thinking about them. he takes the advice, but afterwards explains that he is so proud of sending them away that he 'wants to get them that he may send them away.' he objects to a reward for being good, because it will make him do right from a wrong motive. he shrinks from compliments. in october he leaves a room where some carpenters were at work because they had said something which he was sorry to have heard. they had said, as it appeared upon anxious inquiry, that he would make a good carpenter, and he felt that he was being cajoled. he remarks that even pleasures become painful when they are ordered, and explains why his sixth birthday was disappointing; he had expected too much. his thoughtfulness took shapes which made him at times anything but easy to manage. he could be intensely obstinate. the first conflict with authority took place on june , , when he resolutely declared that he would not say the 'busy bee.' this event became famous in the nursery, for in september he has to express contrition for having in play used the words 'by the busy bee' as an infantile equivalent to an oath. one difficulty was that he declined to repeat what was put into his mouth, or to take first principles in ethics for granted. when his mother reads a text to him (may ), he retorts, 'then i will not be like a little child; i do not want to go to heaven; i would rather stay on earth.' he declines (in ) to join in a hymn which expresses a desire to die and be with god. even good people, he says, may prefer to stay in this world. 'i don't want to be as good and wise as tom macaulay' is a phrase of , showing that even appeals to concrete ideals of the most undeniable excellence fail to overpower him. he gradually developed a theory which became characteristic, and which he obstinately upheld when driven into a logical corner. a stubborn conflict arose in , when his mother was forced to put him in solitary confinement during the family teatime. she overhears a long soliloquy in which he admits his error, contrasts his position with that of the happy who are perhaps even now having toast and sugar, and compares his position to the 'last night of pharaoh.' 'what a barbarian i am to myself!' he exclaims, and resolves that this shall be his last outbreak. on being set at liberty, he says that he was naughty on purpose, and not only submits but requests to be punished. for a short time he applies spontaneously for punishments, though he does not always submit when the request is granted. but this is a concession under difficulties. his general position is that by punishing him his mother only 'procures him to be much more naughty,' and he declines as resolutely as jeremy bentham to admit that naughtiness in itself involves unhappiness, or that the happiness of naughtiness should not be taken into account. he frequently urges that it is pleasanter while it lasts to give way to temper, and that the discomfort only comes afterwards. it follows logically, as he argues in , that if a man could be naughty all his life he would be quite happy. some time later ( ) he is still arguing the point, having now reached the conclusion to which the emperor constantine gave a practical application. the desirable thing would be to be naughty all your life, and to repent just at the end. these declarations are of course only interpolations in the midst of many more edifying though less original remarks. he was exceedingly conscientious, strongly attached to his parents, and very kind to his younger brother and sister. i note that when he was four years old he already thought it, as he did ever afterwards, one of the greatest of treats to have a solitary talk with his father. he was, however, rather unsociable and earned the nickname of 'gruffian' for his occasionally surly manner. this, with a stubborn disposition and occasional fits of the sulks, must have made it difficult to manage a child who persisted in justifying 'naughtiness' upon general principles. he was rather inclined to be indolent, and his mother regrets that he is not so persevering as frederick (gibbs). his great temptation, he says himself, in his childhood was to be 'effeminate and lazy,' and 'to justify these vices by intellectual and religious excuses.' a great deal of this, he adds, has been 'knocked out of him'; he cannot call himself a sluggard or a hypocrite, nor has he acted like a coward. 'indeed,' he says, 'from my very infancy i had an instinctive dislike of the maudlin way of looking at things,' and he remembers how in his fifth year he had declared that guns were not 'dreadful things.' they were good if put to the proper uses. i do not think that there was ever much real 'effeminacy' to be knocked out of him. it is too harsh a word for the slowness with which a massive and not very flexible character rouses itself to action. his health was good, except for a trifling ailment which made him for some time pass for a delicate child. but the delicacy soon passed off and for the next fifty years he enjoyed almost unbroken health. in he explains some bluntness of behaviour by an argument learnt from 'sandford and merton' that politeness is objectionable. in august occurs a fit of obstinacy. he does not want to be forgiven but to be 'happy and comfortable.' 'i do not feel sorry, for i always make the best of my condition in every possible way, and being sorry would make me uncomfortable. that is not to make the best of my condition.' his mother foresees a contest and remarks 'a daring and hardened spirit which is not natural to him.' soon after, i should perhaps say in consequence of, these outbreaks he was sent to school. my mother's first cousin, henry venn elliott, was incumbent of st. mary's chapel at brighton and a leading evangelical preacher. at brighton, too, lived his sister, miss charlotte elliott, author of some very popular hymns and of some lively verses of a secular kind. fitzjames would be under their wing at brighton, where elliott recommended a school kept by the rev. b. guest, at sussex square. my mother took him down by the brighton coach, and he entered the school on november , .[ ] the school, says fitzjames, was in many ways very good; the boys were well taught and well fed. but it was too decorous; there was no fighting and no bullying and rather an excess of evangelical theology. the boys used to be questioned at prayers. 'gurney, what's the difference between justification and sanctification?' 'stephen, prove the omnipotence of god.' many of the hymns sung by the boys remained permanently in my brother's memory, and he says that he could give the names of all the masters and most of the boys and a history of all incidents in chronological order. guest's eloquence about justification by faith seems to have stimulated his pupil's childish speculations. he read a tract in which four young men discuss the means of attaining holiness. one says, 'meditate on the goodness of god'; a second, 'on the happiness of heaven'; a third, 'on the tortures of hell'; and a fourth, 'on the love of christ.' the last plan was approved in the tract; but fitzjames thought meditation on hell more to the purpose, and set about it deliberately. he imagined the world transformed into a globe of iron, white hot, with a place in the middle made to fit him so closely that he could not even wink. the globe was split like an orange; he was thrust by an angel into his place, immortal, unconsumable, and capable of infinite suffering; and then the two halves were closed, and he left in hideous isolation to suffer eternal torments. i guess from my own experience that other children have had similar fancies. he adds, however, a characteristic remark. 'it seemed to me then, as it seems now, that no stronger motive, no motive anything like so strong, can be applied to actuate any human creature toward any line of conduct. to compare the love of god or anything else is to my mind simply childish.' he refers to mill's famous passage about going to hell rather than worship a bad god, and asks what mill would say after an experience of a quarter of an hour. fitzjames, however, did not dwell upon such fancies. they were merely the childish mode of speculation by concrete imagery. he became more sociable, played cricket, improved in health, and came home with the highest of characters as being the best and most promising boy in the school. he rose steadily, and seems to have been thoroughly happy for the next five years and a half. in my mother observed certain peculiarities in me which she took at first to be indications of precocious genius. after a time, however, she consulted an eminent physician, who informed her that they were really symptoms of a disordered circulation. he added that i was in a fair way to become feeble in mind and deformed in body, and strongly advised that i should be sent to school, where my brain would be in less danger of injudicious stimulation. he declared that even my life was at stake. my father, much alarmed, took one of his prompt decisions. he feared to trust so delicate a child away from home, and therefore resolved to take a house in brighton for a year or two, from which i might attend my brother's school. the kensington house was let, and my mother and sister settled in sussex square, a few doors from mr. guest. my father, unable to leave his work, took a lodging in town and came to brighton for sundays, or occasionally twice a week. in those days the journey was still by coach. when the railway began running in the course of , i find my father complaining that it could not be trusted, and had yet made all other modes of travelling impossible. 'how many men turned of fifty,' asks my brother, 'would have put themselves to such inconvenience, discomfort, and separation from their wives for the sake of screening a delicate lad from some of the troubles of a carefully managed boarding school?' my brother was not aware of the apparent gravity of the case when he wrote this. such a measure would have pushed parental tenderness to weakness had there been only a question of comfort; but my father was seriously alarmed, and i can only think of his conduct with the deepest gratitude. to fitzjames the plan brought the advantage that he became his father's companion in sunday strolls over the downs. his father now found, as my mother's diary remarks, that he could already talk to him as to a man, and fitzjames became dimly aware that there were difficulties about mr. guest's theology. he went with my father, too, to hear mr. sortaine, a popular preacher whose favourite topic was the denunciation of popery. my father explained to the boy that some able men really defended the doctrine of transubstantiation, and my brother, as he remarks, could not then suspect that under certain conditions very able men like nonsense, and are even not averse to 'impudent lying,' in defence of their own authority. incidentally, too, my father said that there were such people as atheists, but that such views should be treated as we should treat one who insulted the character of our dearest friend. this remark, attributed to a man who was incapable of insulting anyone, and was a friend of such freethinkers as austin and j. s. mill, must be regarded as representing the impression made upon an inquisitive child by an answer adapted to his capacity. the impression was, however, very strong, and my brother notes that he heard it on a wettish evening on the cliff near the south end of the old steine. fitzjames had discussed the merits of mr. guest's school with great intelligence and had expressed a wish to be sent to rugby. he had heard bad accounts of the state of eton, and some rumours of arnold's influence had reached him. arnold, someone had told him, could read a boy's character at a glance. at easter , my father visited the diceys at claybrook, and thence took his boy to see the great schoolmaster at rugby. fitzjames draws a little diagram to show how distinctly he remembers the scene. he looked at the dark, grave man and wondered, 'is he now reading my character at a glance?' it does not appear that he was actually entered at rugby, however, and my father had presently devised another scheme. the inconveniences of the brighton plan had made themselves felt, and it now occurred to my father that he might take a house in windsor and send both fitzjames and me to eton. we should thus, he hoped, get the advantages of a public school without being exposed to some of its hardships and temptations. he would himself be able to live with his family, although, as things then were, he had to drive daily to and from the slough station, besides having the double journey from paddington to downing street. we accordingly moved to windsor in easter . fitzjames's last months at school had not been quite so triumphant as the first, partly, it seems, from a slight illness, and chiefly for the characteristic reason, according to his master, that he would occupy himself with 'things too high for him.' he read solid works (i find mention of carlyle's 'french revolution') out of school hours and walked with an usher to whom he took a fancy, discoursing upon absorbing topics when he should have been playing cricket. fitzjames left brighton on the day, as he notes, upon which one mister was hanged for attempting murder--being almost the last man in england hanged for anything short of actual murder. he entered eton on april , , and was placed in the 'remove,' the highest class attainable at his age. ii. eton the eton period[ ] had marked effects. fitzjames owed, as he said, a debt of gratitude to the school, but it was for favours which would have won gratitude from few recipients. the boys at a public school form, i fancy, the most rigidly conservative body in existence. they hate every deviation from the accepted type with the hatred of an ancient orthodox divine for a heretic. the eton boys of that day regarded an 'up-town boy' with settled contempt. his motives or the motives of his parents for adopting so abnormal a scheme were suspect. he might be the son of a royal footman or a prosperous tradesman in windsor, audaciously aspiring to join the ranks of his superiors, and if so, clearly should be made to know his place. in any case he was exceptional, and therefore a pariah, to associate with whom might be dangerous to one's caste. mr. coleridge tells me that even the school authorities were not free from certain suspicions. they wisely imagined, it appears, that my father had come among them as a spy, instigated, no doubt, by some diabolical design of 'reforming' the school and desecrating the shrine of henry's holy shade. the poor man, already overpowered by struggling with refractory colonists from heligoland to new zealand, was of malice prepense stirring up this additional swarm of hornets. i can hardly suppose, however, that this ingenious theory had much influence. mr. coleridge also says that the masters connived at the systematic bullying of the town boys. i can believe that they did not systematically repress it. i must add, however, in justice to my school-fellows, that my personal recollections do not reveal any particular tyranny. such bullying as i had to endure was very occasional, and has left no impression on my memory. yet i was far less capable than fitzjames of defending myself, and can hardly have forgotten any serious tormenting. the truth is that the difference between me and my brother was the difference between the willow and the oak, and that i evaded such assaults as he met with open defiance. my brother, as has been indicated, was far more developed in character, if not in scholarship, than is at all common at his age. his talks with my father and his own reading had familiarised him with thoughts lying altogether beyond the horizon of the average boyish mind. he was thoughtful beyond his years, although not conspicuously forward in the school studies. he was already inclined to consider games as childish. he looked down upon his companions and the school life generally as silly and frivolous. the boys resented his contempt of their ways; and his want of sociability and rather heavy exterior at the time made him a natural butt for schoolboy wit. he was, he says, bullied and tormented till, towards the end of his time, he plucked up spirit to resist. of the bullying there can be no doubt; nor (sooner or later) of the resistance. mr. coleridge observes that he was anything but a passive victim, and turned fiercely upon the ringleaders of his enemies. 'often,' he adds, 'have i applauded his backhanders as the foremost in the fray. he was only vanquished by numbers. his bill for hats at sanders' must have amounted to a stiff figure, for my visions of fitzjames are of a discrowned warrior, returning to windsor bareheaded, his hair moist with the steam of recent conflict.' my own childish recollections of his school life refer mainly to pugilism. in october , as i learn from my mother's diary, he found a big boy bullying me, and gave the boy such a thrashing as was certain to prevent a repetition of the crime. i more vividly recollect another occasion, when a strong lad was approaching me with hostile intent. i can still perceive my brother in the background; when an application of the toe of his boot between the tails of my tyrant's coat disperses him instantaneously into total oblivion. other scenes dimly rise up, as of a tumult in the school-yard, where fitzjames was encountering one of the strongest boys in the school amidst a delighted crowd, when the appearance of the masters stopped the proceedings. fitzjames says that in his sixteenth year (i.e. - ) he grew nearly five inches, and instead of outgrowing his strength became a 'big, powerful young man, six feet high,'--and certainly a very formidable opponent. other boys have had similar experiences without receiving the same impression. 'i was on the whole,' he says, 'very unhappy at eton, and i deserved it; for i was shy, timid, and i must own cowardly. i was like a sensible grown-up woman among a crowd of rough boys.' after speaking of his early submission to tyranny, he adds: 'i still think with shame and self-contempt of my boyish weakness, which, however, did not continue in later years. the process taught me for life the lesson that to be weak is to be wretched, that the state of nature is a state of war, and _væ victis_ the great law of nature. many years afterwards i met r. lowe (lord sherbrooke) at dinner. he was speaking of winchester, and said with much animation that he had learnt one great lesson there, namely, that a man can count on nothing in this world except what lies between his hat and his boots. i learnt the same lesson at eton, but alas! by conjugating not _pulso_ but _vapulo_.' as i have intimated, i think that his conscience must have rather exaggerated his sins of submission; though i also cannot doubt that there was some ground for his self-humiliation. in any case, he atoned for it fully. i must add that he learnt another lesson, which, after his fashion, he refrains from avowing. the 'kicks, cuffs, and hat smashing had no other result,' says mr. coleridge, 'than to steel his mind for ever against oppression, tyranny, and unfairness of every kind.' how often that lesson is effectually taught by simple bullying i will not inquire. undoubtedly fitzjames learnt it, though he expressed himself more frequently in terms of indignation against the oppressor than of sympathy for the oppressed; but the sentiment was equally strong, and i have no doubt that it was stimulated by these acts of tyranny. the teaching at eton was 'wretched'; the hours irregular and very unpunctual; the classes were excessively large, and the tutorial instruction supposed to be given out of school frequently neglected. 'i do not believe,' says my brother, 'that i was ever once called upon to construe at my tutor's after i got into the fifth form.' an absurd importance, too, was already attached to the athletic amusements. balston, our tutor, was a good scholar after the fashion of the day and famous for latin verse; but he was essentially a commonplace don. 'stephen major,' he once said to my brother, 'if you do not take more pains, how can you ever expect to write good longs and shorts? if you do not write good longs and shorts, how can you ever be a man of taste? if you are not a man of taste, how can you ever hope to be of use in the world?'--a _sorites_, says my brother, which must, he thinks, be somewhere defective. the school, however, says fitzjames, had two good points. the boys, in the first place, were gentlemen by birth and breeding, and did not forget their home training. the simple explanation of the defects of the school was, as he remarks, that parents in this class did not care about learning; they wished their children to be gentlemen, and to be 'bold and active, and to make friends and to enjoy themselves, and most of them had their wish.' the second good point in the school is more remarkable. 'there was,' says fitzjames, 'a complete absence of moral and religious enthusiasm. the tone of rugby was absolutely absent.' chapel was simply a kind of drill. he vividly remembers a sermon delivered by one of the fellows, a pompous old gentleman, who solemnly gave out the bidding prayer, and then began in these words, 'which ring in my ears after the lapse of more than forty years.' 'the subject of my discourse this morning, my brethren, will be the duties of the married state.' when balston was examined before a public schools commission, he gave what fitzjames considers 'a perfectly admirable answer to one question.' he had said that the provost and fellows did all the preaching, and was asked whether he did not regret that he could not, as headmaster, use this powerful mode of influencing the boys? 'no,' he said; 'i was always of opinion that nothing was so important for boys as the preservation of christian simplicity.' 'this put into beautiful language,' says my brother, 'the truth that at eton there was absolutely no nonsense.' the masters knew that they had 'nothing particular to teach in the way of morals or religion, and they did not try to do so.' the merits thus ascribed to eton were chiefly due, it seems, to the neglect of discipline and of teaching. my brother infers that good teaching at school is of less importance than is generally supposed. i shall not enter upon that question; but it is necessary to point out that whatever the merits of an entire absence of moral and religious instruction, my brother can hardly be taken as an instance. at this time the intimacy with his father, already close, was rapidly developing. on sunday afternoons, in particular, my father used to walk to the little chapel near cumberland lodge, in windsor park, and on the way would delight in the conversations which so profoundly interested his son. the boy's mind was ripening, and he was beginning to take an interest in some of the questions of the day. it was the time of the oxford movement, and discussions upon that topic were frequent at home. frederick gibbs held for a time a private tutorship at eton while reading for a fellowship at trinity, and brought news of what was exciting young men at the universities. a quaint discussion recalled by my brother indicates one topic which even reached the schoolboy mind. he was arguing as to confirmation with herbert coleridge ( - ) whose promising career as a philologist was cut short by an early death. 'if you are right,' said fitzjames, 'a bishop could not confirm with his gloves on.' 'no more he could,' retorted coleridge, boldly accepting the position. political questions turned up occasionally. o'connell was being denounced as 'the most impudent of created liars,' and a belief in free trade was the mark of a dangerous radical. to the eton time my brother also refers a passionate contempt for the 'sentimental and comic' writers then popular. he was disgusted not only by their sentimentalism but by their vulgarity and their ridicule of all that he respected. one influence, at this time, mixed oddly with that exerted by my father. my eldest brother, herbert, had suffered from ill health, due, i believe, to a severe illness in his infancy, which had made it impossible to give him a regular education. he had grown up to be a tall, large-limbed man, six feet two-and-a-half inches in height, but loosely built, and with a deformity of one foot which made him rather awkward. the delicacy of his constitution had caused much anxiety and trouble, and he diverged from our family traditions by insisting upon entering the army. there, as i divine, he was the object of a good deal of practical joking, and found himself rather out of his element. he used to tell a story which may have received a little embroidery in tradition. he was at a ball at gibraltar, which was attended by a naval officer. when the ladies had retired this gentleman proposed pistol shooting. after a candelabrum had been smashed, the sailor insisted upon taking a shot at a man who was lying on a sofa, and lodged a bullet in the wall just above his head. herbert left the army about and entered at gray's inn. he would probably have taken to literature, and he wrote a few articles not without promise, but his life was a short one. he was much at windsor, and the anxiety which he had caused, as well as a great sweetness and openness of temper, made him, i guess, the most tenderly loved of his parents' children. he had, however, wandered pretty widely outside the limits of the clapham sect. he became very intimate with fitzjames, and they had long and frank discussions. this daring youth doubted the story of noah's flood, and one phrase which stuck in his brother's mind is significant. 'you,' he said, 'are a good boy, and i suppose you will go to heaven. if you can enjoy yourself there when you think of me and my like grilling in hell fire, upon my soul i don't envy you.' one other little glance from a point of view other than that of clapham impressed the lad. he found among his father's books a copy of 'state trials,' and there read the trial of williams for publishing paine's 'age of reason.' the extracts from paine impressed him; though, for a time, he had an impression from his father that coleridge and other wise men had made a satisfactory apology for the bible; and 'in his inexperience' he thought that paine's coarseness implied a weak case. 'there is a great deal of truth,' he says, 'in a remark made by paine. i have gone through the bible as a man might go through a wood, cutting down the trees. the priests can stick them in again, but they will not make them grow.' for the present such thoughts remained without result. fitzjames was affected, he says, by the combined influence of his father and brother. he thought that something was to be said on both sides of the argument. meanwhile the anxiety caused to his father by herbert's unfortunately broken, though in no sense discreditable, career impressed him with a strong sense of the evils of all irregularities of conduct. he often remembered herbert in connection with one of his odd anniversaries. 'this day eighteen years ago,' he says (september , ), 'my brother herbert and i killed a snake in windsor forest. poor dear fellow! we should have been great friends, and please god! we shall be yet.' meanwhile fitzjames had done well, though not brilliantly, at school. he was eighth in his division, of which he gives the first twelve names from memory. the first boy was chenery, afterwards editor of the 'times,' and the twelfth was herbert coleridge. with the exception of coleridge, his cousin arthur, and w. j. beamont ( - ), who at his death was a fellow at trinity college, cambridge, he had hardly any intimates. chitty, afterwards his colleague on the bench, was then famous as an athlete; but with athletics my brother had nothing to do. his only amusement of that kind was the solitary sport of fishing. he caught a few roach and dace, and vainly endeavoured to inveigle pike. his failure was caused, perhaps, by scruples as to the use of live bait, which led him to look up some elaborate recipes in walton's 'compleat angler.' pike, though not very intelligent, have long seen through those ancient secrets. one of these friendships led to a characteristic little incident. in the christmas holidays of fitzjames was invited to stay with the father of his friend beamont, who was a solicitor at warrington. there could not, as i had afterwards reason to know, have been a quieter or simpler household. but they had certain gaieties. indeed, if my memory does not deceive me, fitzjames there made his first and only appearance upon the stage in the character of tony lumpkin. my father was alarmed by the reports of these excesses, and, as he was going to the diceys, at claybrook, wrote to my brother of his intentions. he hinted that fitzjames, if he were at liberty, might like a visit to his cousins. upon arriving at rugby station he found fitzjames upon the platform. the lad had at once left warrington, though a party had been specially invited for his benefit, having interpreted the paternal hint in the most decisive sense. my father, i must add, was shocked by the results of his letter, and was not happy till he had put himself right with the innocent beamonts. under balston's advice fitzjames was beginning to read for the newcastle. before much progress had been made in this, however, my father discovered his son's unhappiness at school. although the deep designs of reform with which the masters seem to have credited him were purely imaginary, my father had no high opinion of eton, and devised another scheme. fitzjames went to the school for the last time about september , , and then tore off his white necktie and stamped upon it. he went into the ante-chapel and scowled, he says, at the boys inside, not with a benediction. it was the close of three years to which he occasionally refers in his letters, and always much in the same terms. they were, in the main, unhappy, and, as he emphatically declared, the only unhappy years of his life, but they had taught him a lesson. iii. king's college on october , , he entered king's college, london. lodgings were taken for him at highgate hill, within a few doors of his uncle, henry venn. he walked the four miles to the college, dined at the colonial office at two, and returned by the omnibus. he was now his own master, the only restriction imposed upon him being that he should every evening attend family prayers at his uncle's house. the two years he spent at king's college were, he says, 'most happy.' he felt himself changed from a boy to a man. the king's college lads, who, indeed called themselves 'men,' were of a lower social rank than the etonians, and, as fitzjames adds, unmistakably inferior in physique. boys who had the strand as the only substitute for the playing-fields were hardly likely to show much physical prowess. but they had qualities more important to him. they were industrious, as became the sons of professional and business men. their moral tone was remarkably good; he never knew, he says, a more thoroughly well-behaved set of lads, although he is careful to add that he does not think that in this respect eton was bad. his whole education had been among youths 'singularly little disposed to vice or a riot in any form.' but the great change for him was that he could now find intellectual comradeship. there was a debating society, in which he first learnt to hear his own voice, and indeed became a prominent orator. he is reported to have won the surname 'giant grim.' his most intimate friend was the present dr. kitchin, dean of durham. the lads discussed politics and theology and literature, instead of putting down to affectation any interest outside of the river and the playing-fields. fitzjames not only found himself in a more congenial atmosphere, but could hold his own better among youths whose standard of scholarship was less exalted than that of the crack latin versemakers at eton, although the average level was perhaps higher. in he won a scholarship, and at the summer examination was second in classics. in he was only just defeated for a scholarship by an elder boy, and was first, both in classics and english literature, in the examinations, besides winning a prize essay. here, as elsewhere, he was much interested by the theological tone of his little circle, which was oddly heterogeneous. there was, in the first place, his uncle, henry venn, to whom he naturally looked up as the exponent of the family orthodoxy. long afterwards, upon venn's death, he wrote, 'henry venn was the most triumphant man i ever knew.' 'i never,' he adds, 'knew a sturdier man.' such qualities naturally commanded his respect, though he probably was not an unhesitating disciple. at king's college, meanwhile, which prided itself upon its anglicanism, he came under a very different set of teachers. the principal, dr. jelf, represented the high and dry variety of anglicanism. i can remember how, a little later, i used to listen with wonder to his expositions of the thirty-nine articles. what a marvellous piece of good fortune it was, i used dimly to consider, that the church of england had always hit off precisely the right solution in so many and such tangled controversies! but king's college had a professor of a very different order in f. d. maurice. his personal charm was remarkable, and if fitzjames did not become exactly a disciple he was fully sensible of maurice's kindness of nature and loftiness of purpose. he held, i imagine, in a vague kind of way, that here might perhaps be the prophet who was to guide him across the deserts of infidelity into the promised land where philosophy and religion will be finally reconciled. of this, however, i shall have more to say hereafter. i must now briefly mention the changes which took place at this time in our family. in my brother herbert made a tour to constantinople, and on his return home was seized by a fever and died at dresden on october . my father and mother had started upon the first news of the illness, but arrived too late to see their son alive. fitzjames in the interval came to windsor, and, as my mother records, was like a father to the younger children. the journey to dresden, with its terrible suspense and melancholy end, was a severe blow to my father. from that time, as it seems to me, he was a changed man. he had already begun to think of retiring from his post, and given notice that he must be considered as only holding it during the convenience of his superiors.[ ] he gave up the house at windsor, having, indeed, kept it on chiefly because herbert was fond of the place. we settled for a time at wimbledon. there my brother joined us in the early part of . a very severe illness in the autumn of finally induced my father to resign his post. in recognition of his services he was made a privy councillor and k.c.b. his retirement was at first provisional, and, on recovering, he was anxious to be still employed in some capacity. the government of the day considered the pension to which he was entitled an inadequate reward for his services. there was some talk of creating the new office of assessor to the judicial committee of the privy council, to which he was to be appointed. this proved to be impracticable, but his claim was partly recognised in his appointment to succeed william smyth (died june , ) as regius professor of modern history at cambridge.[ ] i may as well mention here the later events of his life, as they will not come into any precise connection with my brother's history. the intimacy between the two strengthened as my brother developed into manhood, and they were, as will be seen, in continual intercourse. but after leaving king's college my brother followed his own lines, though for a time an inmate of our household. the kensington house having been let, we lived in various suburban places, and, for a time, at cambridge. my father's professorship occupied most of his energies in later years. he delivered his first course in the may term of . another very serious illness, threatening brain fever, interrupted him for a time, and he went abroad in the autumn of . he recovered, however, beyond expectation, and was able to complete his lectures in the winter, and deliver a second course in the summer of . these lectures were published in as 'lectures on the history of france.' they show, i think, the old ability, but show also some failure of the old vivacity. my father did not possess the profound antiquarian knowledge which is rightly demanded in a professor of the present day; and, indeed, i think it is not a little remarkable that, in the midst of his absorbing work, he had acquired so much historical reading as they display. but, if i am not mistaken, the lectures have this peculiar merit--that they are obviously written by a man who had had vast practical experience of actual administrative work. they show, therefore, an unusual appreciation of the constitutional side of french history; and he anticipated some of the results set forth with, of course, far greater knowledge of the subject, in tocqueville's 'ancien régime.' tocqueville himself wrote very cordially to my father upon the subject; and the lectures have been valued by very good judges. nothing, however, could be more depressing than the position of a professor at cambridge at that time. the first courses delivered by my father were attended by a considerable number of persons capable of feeling literary curiosity--a class which was then less abundant than it would now be at cambridge. but he very soon found that his real duty was to speak to young gentlemen who had been driven into his lecture-room by well-meant regulations; who were only anxious to secure certificates for the 'poll' degree, and whose one aim was to secure them on the cheapest possible terms. to candidates for honours, the history school was at best a luxury for which they could rarely spare time, and my father had to choose between speaking over the heads of his audience and giving milk and water to babes. the society of the cambridge dons in those days was not much to his taste, and he soon gave up residence there. about the beginning of he took a house in westbourne terrace, which became his headquarters. in he accepted a professorship at haileybury, which was then doomed to extinction, only to hold it during the last three years of the existence of the college. these lectures sufficiently occupied his strength, and he performed them to the best of his ability. the lectures upon french history were, however, the last performance which represented anything like his full powers. iv. cambridge in october my brother went into residence at trinity college, cambridge. 'my cambridge career,' he says, 'was not to me so memorable or important a period of life as it appears to some people.' he seems to have extended the qualification to all his early years. 'few men,' he says, 'have worked harder than i have for the last thirty-five years, but i was a very lazy, unsystematic lad up to the age of twenty-two.' he would sometimes speak of himself as 'one of a slowly ripening race,' and set little value upon the intellectual acquirements attained during the immature period. yet i have sufficiently shown that in some respects he was even exceptionally developed. from his childhood he had shared the thoughts of his elders; he had ceased to be a boy when he had left eton at sixteen; and he came up to cambridge far more of a grown man than nine in ten of his contemporaries. so far, indeed, as his character was concerned, he had scarcely ever been a child: at cambridge, as at eton, he regarded many of the ambitions of his contemporaries as puerile. even the most brilliant undergraduates are sometimes tempted to set an excessive value upon academical distinction. a senior wranglership appears to them to be the culminating point of human glory, instead of the first term in the real battle of life. fitzjames, far from sharing this delusion, regarded it, perhaps, with rather too much contempt. his thoughts were already upon his future career, and he cared for university distinctions only as they might provide him with a good start in the subsequent competition. but this marked maturity of character did not imply the possession of corresponding intellectual gifts, or, as i should rather say, of such gifts as led to success in the senate house. fitzjames had done respectably at eton, and had been among the first lads at king's college. he probably came up to cambridge with confidence that he would make a mark in examinations. but his mind, however powerful, was far from flexible. he had not the intellectual docility which often enables a clever youth to surpass rivals of much greater originality--as originality not unfrequently tempts a man outside the strait and narrow path which leads to the maximum of marks. 'i have always found myself,' says fitzjames, in reference to his academical career, 'one of the most unteachable of human beings. i cannot, to this day, take in anything at second hand. i have in all cases to learn whatever i want to learn in a way of my own. it has been so with law, with languages, with indian administration, with the machinery i have had to study in patent cases, with english composition--in a word, with everything whatever.' for other reasons, however, he was at a disadvantage. he not only had not yet developed, but he never at any time possessed, the intellectual qualities most valued at cambridge. the cambridge of those days had merits, now more likely to be overlooked than overvalued. the course was fitted to encourage strenuous masculine industry, love of fair play, and contempt for mere showy displays of cleverness. but it must be granted that it was strangely narrow. the university was not to be despised which could turn out for successive senior wranglers from to such men as leslie ellis, sir george stokes, professor cayley, and adams, the discoverer of neptune, while the present lord kelvin was second wrangler and first smith's prizeman in . during the same period the great latin scholar, munro ( ), and h. s. maine ( ), were among the lights of the classical tripos. but, outside of the two triposes, there was no career for a man of any ability. to parody a famous phrase of hume's, cambridge virtually said to its pupils, 'is this a treatise upon geometry or algebra? no. is it, then, a treatise upon greek or latin grammar, or on the grammatical construction of classical authors? no. then commit it to the flames, for it contains nothing worth your study.' now, in both these arenas fitzjames was comparatively feeble. he read classical books, not only at cambridge but in later life, when he was pleased to find his scholarship equal to the task of translating. but he read them for their contents, not from any interest in the forms of language. he was without that subtlety and accuracy of mind which makes the born scholar. he was capable of blunders surprising in a man of his general ability; and every blunder takes away marks. he was still less of a mathematician. 'i disliked,' as he says himself, 'and foolishly despised the studies of the place, and did not care about accurate classical scholarship, in which i was utterly wrong. i was clumsy at calculation, though i think i have, and always have had, a good head for mathematical principles; and i utterly loathed examinations, which seem to me to make learning all but impossible.' a letter from his friend, the rev. h. w. watson, second wrangler in , who was a year his senior, has given me a very interesting account of impressions made at this time. the two had been together at king's college. fitzjames's appearance at trinity was, writes mr. watson, 'an epoch in my college life. a close intimacy sprung up between us, and made residence at cambridge a totally different thing from what it had been in my first year. your brother's wide culture, his singular force of character, his powerful but, at that time, rather unwieldy intellect, his johnsonian brusqueness of speech and manner, mingled with a corresponding johnsonian warmth of sympathy with and loyalty to friends in trouble or anxiety, his sturdiness in the assertion of his opinions, and the maintenance of his principles, disdaining the smallest concession for popularity's sake ... all these traits combined in the formation of an individuality which no one could know intimately and fail to be convinced that only time was wanting for the achievement of no ordinary distinction.' 'yet,' says mr. watson, 'he was distanced by men immeasurably his inferiors.' nor can this, as mr. watson rightly adds, be regarded as a condemnation of the system rather than of my brother. 'i attempted to prepare him in mathematics, and the well-known dr. scott, afterwards headmaster of westminster, was his private tutor in classics; and we agreed in marvelling at and deploring the hopelessness of our tasks. for your brother's mind, acute and able as it was in dealing with matters of concrete human interest, seemed to lose grasp of things viewed purely in the abstract, and positively refused to work upon questions of grammatical rules and algebraical formulæ.' when they were afterwards fellow-students for a short time in law, mr. watson remarked in fitzjames a similar impatience of legal technicalities. he thinks that the less formal system at oxford might have suited my brother better. at that time, however, cambridge was only beginning to stir in its slumbers. the election of the prince consort to the chancellorship in (my brother's first year of residence) had roused certain grumblings as to the probable 'germanising' of our ancient system; and a beginning was made, under whewell's influence, by the institution of the 'moral sciences' and 'natural sciences' triposes in . the theory was, apparently, that, if you ask questions often enough, people will learn in time to answer them. but for the present they were regarded as mere 'fancy' examinations. no rewards were attainable by success; and the ambitious undergraduates kept to the ancient paths. i may as well dispose here of one other topic which seems appropriate to university days. fitzjames cared nothing for the athletic sports which were so effectually popularised soon afterwards in the time of 'tom brown's school days.' athletes, indeed, cast longing eyes at his stalwart figure. one eminent oarsman persuaded my brother to take a seat in a pair-oared boat, and found that he could hardly hold his own against the strength of the neophyte. he tried to entice so promising a recruit by offers of a place in the 'third trinity' crew and ultimate hopes of a 'university blue.' fitzjames scorned the dazzling offer. i remember how ritson, the landlord at wastdale head, who had wrestled with christopher north, lamented in after years that fitzjames had never entered the ring. he spoke in the spirit of the prize-fighter who said to whewell, 'what a man was lost when they made you a parson!' his only taste of the kind was his hereditary love of walking. his mother incidentally observes in january , that he has accomplished a walk of thirty-three miles; and in later days that was a frequent allowance. though not a fast walker, he had immense endurance. he made several alpine tours, and once (in ) he accompanied me in an ascent of the jungfrau with a couple of guides. he was fresh from london; we had passed a night in a comfortless cave; the day was hot, and his weight made a plod through deep snow necessarily fatiguing. we reached the summit with considerable difficulty. on the descent he slipped above a certain famous bergschrund; the fall of so ponderous a body jerked me out of the icy steps, and our combined weight dragged down the guides. happily the bergschrund was choked with snow, and we escaped with an involuntary slide. as we plodded slowly homewards, we expected that his exhaustion would cause a difficulty in reaching the inn. but by the time we got there he was, i believe, the freshest of the party. i remember another characteristic incident of the walk. he began in the most toilsome part of the climb to expound to me a project for an article in the 'saturday review.' i consigned that journal to a fate which i believe it has hitherto escaped. but his walks were always enjoyed as opportunities for reflection. occasionally he took a gun or a rod, and i am told was not a bad shot. he was, however, rather inclined to complain of the appearance of a grouse as interrupting his thoughts. in sport of the gambling variety he never took the slightest interest; and when he became a judge, he shocked a liverpool audience by asking in all simplicity, 'what is the "grand national"?' that, i understand, is like asking a lawyer, what is a _habeas corpus_? he was never seized with the athletic or sporting mania, much as he enjoyed a long pound through pleasant scenery. in this as in some other things he came to think that his early contempt for what appeared to be childish amusements had been pushed rather to excess. i return to cambridge. my brother knew slightly some of the leading men of the place. the omniscient whewell, who concealed a warm heart and genuine magnanimity under rather rough and overbearing manners, had welcomed my father very cordially to cambridge and condescended to be polite to his son. but the gulf which divided him from an undergraduate was too wide to allow the transmission of real personal influence. thompson, whewell's successor in the mastership, was my brother's tutor. he is now chiefly remembered for certain shrewd epigrams; but then enjoyed a great reputation for his lectures upon plato. my brother attended them; but from want of natural platonism or for other reasons failed to profit by them, and thought the study was sheer waste of time. another great cambridge man of those days, the poetical mathematician, leslie ellis, was kind to my brother, who had an introduction to him probably from spedding. ellis was already suffering from the illness which confined him to his room at trumpington, and prevented him from ever giving full proofs of intellectual powers, rated by all who knew him as astonishing. i may quote what fitzjames says of one other contemporary, the senior classic of his own year: 'lightfoot's reputation for accuracy and industry was unrivalled; but it was not generally known what a depth of humour he had or what general force of character.' lightfoot's promotion to the bishopric of durham removed him, as my brother thought, from his proper position as a teacher; and he suffered 'under the general decay of all that belongs to theology.' i do not find, however, that lightfoot had any marked influence upon fitzjames. the best thing that the ablest man learns at college, as somebody has said, is that there are abler men than himself. my brother became intimate with several very able men of his own age, and formed friendships which lasted for life. he met them especially in two societies, which influenced him as they have influenced many men destined to achieve eminence. the first was the 'union.' there his oratory became famous. the 'gruffian' and 'giant grim' was now known as the 'british lion'; and became, says mr. watson, 'a terror to the shallow and wordy, and a merciless exposer of platitudes and shams.' mr. watson describes a famous scene in the october term of which may sufficiently illustrate his position. 'there was at that time at trinity a cleverish, excitable, worthy fellow whose mind was a marvellous mixture of inconsistent opinions which he expounded with a kind of oratory as grotesque as his views.' tradition supplies me with one of his flowers of speech. he alluded to the clergy as 'priests sitting upon their golden middens and crunching the bones of the people.' these oddities gave my brother irresistible opportunities for making fun of his opponent. 'one night his victim's powers of endurance gave way. the scene resembled the celebrated outburst of canning when goaded by the invectives of brougham. the man darted across the room with the obvious intention of making a physical onslaught, and then, under what impulse and with what purpose i do not know, the whole meeting suddenly flashed into a crowd of excited, wrangling boys. they leapt upon the seats, climbed upon the benches, vociferated and gesticulated against each other, heedless of the fines and threats of the bewildered president, and altogether reproduced a scene of the french revolutionary assembly.' mr. llewelyn davies was the unfortunate president on this occasion, and mentions that my brother commemorated the scene in a 'heroic ballad' which has disappeared. from the minutes of the society[ ] 'i learn further details of this historic scene. the debate (november , ) arose upon a motion in favour of cobden. his panegyrist made 'such violent interruptions' that a motion was made for his expulsion, but carried by an insufficient majority. another orator then 'became unruly' and was expelled by a superabundant majority, while the original mover was fined _l._ the motion was then unanimously negatived, 'the opener not being present to reply.' from the records of other debates i learn that fitzjames was in favour of the existing church establishment as against advocates of change, whether high churchmen or liberationists. he also opposed motions for extension of the suffrage, without regard to education or property, moved by sir w. harcourt. he agrees, however, with harcourt in condemning the game laws. his most characteristic utterance was when the admirer of cobden had moved that 'to all human appearance we are warranted in tracing for our own country through the dim perspective of coming time an exalted and glorious destiny.' fitzjames moved as an amendment 'that the house, while it acknowledges the many dangers to which the country is exposed, trusts that through the help of god we may survive them.' this amendment was carried by to . the other society was one which has included a very remarkable number of eminent men. in my undergraduate days we used to speak with bated breath of the 'apostles'--the accepted nickname for what was officially called the cambridge conversazione society. it was founded about , and had included such men as tennyson (who, as my brother reports, had to leave the society because he was too lazy to write an essay), the two younger hallams, maurice, sterling, charles buller, arthur helps, james spedding, monckton milnes, tom taylor, charles merivale, canon blakesley, and others whom i shall have to mention. the existence of a society intended to cultivate the freest discussion of all the great topics excited some suspicion when, about , there was a talk of abolishing tests. it was then warmly defended by thirlwall, the historian, who said that many of its members had become ornaments of the church.[ ] but the very existence of this body was scarcely known to the university at large; and its members held reticence to be a point of honour. you might be aware that your most intimate friend belonged to it: you had dimly inferred the fact from his familiarity with certain celebrities, and from discovering that upon saturday evenings he was always mysteriously engaged. but he never mentioned his dignity; any more than at the same period a warrington would confess that he was a contributor to the leading journals of the day. the members were on the look-out for any indications of intellectual originality, academical or otherwise, and specially contemptuous of humbug, cant, and the qualities of the 'windbag' in general. to be elected, therefore, was virtually to receive a certificate from some of your cleverest contemporaries that they regarded you as likely to be in future an eminent man. the judgment so passed was perhaps as significant as that implied by university honours, and a very large proportion of the apostles have justified the anticipations of their fellows. my brother owed his election at an unusually early period of his career to one of the most important friendships of his life. in the summer vacation of f. w. gibbs was staying at filey, reading for the trinity fellowship, which he obtained in the following october. fitzjames joined him, and there met henry sumner maine, who had recently ( ) taken his degree at cambridge, when he was not only 'senior classic' but a senior classic of exceptional brilliancy. both maine and gibbs were apostles and, of course, friends. my brother's first achievement was to come near blowing out his new friend's brains by the accidental discharge of a gun. maine happily escaped, and must have taken a liking to the lad. in maine was appointed to the regius professorship of civil law in cambridge. the study which he was to teach had fallen into utter decay. maine himself cannot at that time have had any profound knowledge of the civil law--if, indeed, he ever acquired such knowledge. but his genius enabled him to revive the study in england--although no genius could galvanise the corpse of legal studies at the cambridge of those days into activity. maine, as fitzjames says, 'made in the most beautiful manner applications of history and philosophy to roman law, and transfigured one of the driest of subjects into all sorts of beautiful things without knowing or caring much about details.' he was also able to 'sniff at bentham' for his ignorance in this direction. 'i rebelled against maine for many years,' says fitzjames, 'till at last i came to recognise, not only his wonderful gifts, but the fact that at bottom he and i agreed fundamentally, though it cost us both a good deal of trouble to find it out.' i quote this because it bears upon my brother's later development of opinion. for the present, the personal remark is more relevant. maine, says fitzjames, 'was perfectly charming to me at college, as he is now. he was most kind, friendly, and unassuming; and, though i was a freshman and he a young don,[ ] and he was twenty-six when i was twenty--one of the greatest differences of age and rank which can exist between two people having so much in common--we were always really and effectually equal. we have been the closest of friends all through life.' i think, indeed, that maine's influence upon my brother was only second to that of my father. maine brought fitzjames into the apostles in his first term.[ ] maine, says my brother, 'was a specially shining apostle, and in all discussions not only took by far the first and best part, but did it so well and unpretentiously, and in a strain so much above what the rest of us could reach, that it was a great piece of education to hear him.' other members of the little society, which generally included only five or six--the name 'apostles' referring to the limit of possible numbers--were e. h. stanley (afterwards lord derby), who left in march , vernon harcourt (now sir william), h. w. watson, julian fane,[ ] and the present canon holland. old members--monckton milnes, james spedding, henry fitzmaurice hallam, and w. h. thompson (the tutor)--occasionally attended meetings. the late professor hort and the great physicist, clerk maxwell, joined about the time of my brother's departure. he records one statement of maxwell's which has, i suspect, been modified in transmission. the old logicians, said maxwell, recognised four forms of syllogism. hamilton had raised the number to , but he had himself discovered . this, however, mattered little, as the great majority could not be expressed in human language, and even if expressed were not susceptible of any meaning. this specimen would give a very inaccurate notion of the general line of discussion. by the kindness of professor sidgwick, i am enabled to give some specimens of the themes supported by my brother, which may be of interest, not merely in regard to him, but as showing what topics occupied the minds of intelligent youths at the time. the young gentlemen met every saturday night in term time and read essays. they discussed all manner of topics. sometimes they descended to mere commonplaces--is a little knowledge a dangerous thing? is it possible _ridentem dicere verum_? (which fitzjames is solitary in denying)--but more frequently they expatiate upon the literary, poetical, ethical, and philosophical problems which can be answered so conclusively in our undergraduate days. fitzjames self-denyingly approves of the position assigned to mathematics at cambridge. in literary matters i notice that he does not think the poetry of byron of a 'high order'; that he reads some essays of shelley, which are unanimously voted 'unsatisfactory'; that he denies that tennyson's 'princess' shows higher powers than the early poems (a rather ambiguous phrase); that he considers adam, not satan, to be the hero of 'paradise lost'; and, more characteristically, that he regards the novels of the present day as 'degenerate,' and, on his last appearance, maintains the superiority of miss austen's 'emma' to miss brontë's 'jane eyre.' 'jane eyre' had then, i remember, some especially passionate admirers at cambridge. his philosophical theories are not very clear. he thinks, like some other people, that locke's chapter on 'substance' is 'unsatisfactory'; and agrees with some 'strictures' on the early chapters of mill's 'political economy.' he writes an essay to explode the poor old social contract. he holds that the study of metaphysics is desirable, but adds the note, 'not including ontological inquiries under the head of metaphysics.' he denies, however, the proposition that 'all general truths are founded on experience.' he thinks that a meaning can be attached to the term 'freewill'; but considers it impossible 'to frame a satisfactory hypothesis as to the origin of evil.' even the intellect of the apostles had its limits. his ethical doctrines seem to have inclined to utilitarianism. the whole society (four members present) agrees that the system of expediency, 'so far from being a derogation from the moral dignity of man, is the only method consistent with the conditions of his action.' he is neutral upon the question whether 'self-love is the immediate motive of all our actions,' and considers that question unmeaning, 'as not believing it possible that a man should be at once subject and object.' he writes an essay to show that there is no foundation 'for a philosophy of history in the analogy between the progressive improvement of mankind and that of which individuals are capable,' and he holds (in opposition to maine) that carlyle is a 'philosophic historian.' the only direct reference to contemporary politics is characteristic. fane had argued that 'some elements of socialism' should be 'employed in that reconstruction of society which the spirit of the age demands.' maine agrees, but fitzjames denies that any reconstruction of society is needed. theological discussions abound. fitzjames thinks that there are grounds independent of revelation for believing in the goodness and unity of an intelligent first cause. he reads an essay to prove that we can form a notion of inspiration which does not involve dictation. he thinks it 'more agreeable to right reason' to explain the biblical account of the creation by literal interpretation than 'on scientific principles,' but adds the rider, 'so far as it can be reconciled with geological facts.' he denies that the pentateuch shows 'traces of egyptian origin.' he thinks that paley's views of the 'essential doctrines of christianity' are insufficient. he approves the 'strict observance of the sabbath in england,' but notes that he does not wish to 'confound the christian sunday with the jewish sabbath.' the instinct which leads a young man to provide himself with a good set of dogmatic first principles is very natural; and the free and full discussion of them with his fellows, however crude their opinions may be, is among the very best means of education. i need only remark that the apostles appear to have refrained from discussion of immediate politics, and to have been little concerned in some questions which were agitating the sister university. they have nothing to say about apostolical succession and the like; nor are there any symptoms of interest in german philosophy, which hamilton and mansel were beginning to introduce. at cambridge the young gentlemen are content with locke and mill; and at most know something of coleridge and maurice. mr. watson compares these meetings to those at newman's rooms in oxford as described by mark pattison. there a luckless advocate of ill-judged theories might be crushed for the evening by the polite sentence, _very likely_. at the cambridge meetings, the trial to the nerves, as mr. watson thinks, was even more severe. there was not the spell of common reverence for a great man, in whose presence a modest reticence was excusable. you were expected to speak out, and failure was the more appalling. the contests between stephen and harcourt were especially famous. though, says mr. watson, your brother was 'not a match in adroitness and chaff' for his great 'rival,' he showed himself at his best in these struggles. 'the encounters were veritable battles of the gods, and i recall them after forty years with the most vivid recollection of the pleasure they caused.' when sir william harcourt entered parliament, my brother remarked to mr. llewelyn davies, 'it does not seem to be in the natural order of things that harcourt should be in the house and i not there to criticise him.' fitzjames's position in regard both to theology and politics requires a little further notice. at this time my brother was not only a stern moralist, but a 'zealous and reverential witness on behalf of dogma, and that in the straitest school of the evangelicals.' mr. watson mentions the death at college of a fellow-student during the last term of my brother's residence. in his last hours the poor fellow confided to his family his gratitude to fitzjames for having led him to think seriously on religious matters. i find a very minute account of this written by my brother at the time to a common friend. he expresses very strong feeling, and had been most deeply moved by his first experience of a deathbed; but he makes no explicit reflections. though decidedly of the evangelical persuasion at this period, and delighting in controversy upon all subjects, great and small, his intense aversion to sentimentalism was not only as marked as it ever became, but even led to a kind of affectation of prosaic matter of fact stoicism, a rejection of every concession to sentiment, which he afterwards regarded as excessive. the impression made upon him by contemporary politics was remarkable. the events of stirred all young men in one way or the other; and although the apostles were discussing the abstract problems of freewill and utilitarianism, they were no doubt keenly interested in concrete history. no one was more moved than fitzjames. he speaks of the optimistic views which were popular with the liberals after , expounded by cobden and bright and supposed to be sanctioned by the exhibition of . it was the favourite cant that captain pen 'had got the best of captain sword, and that henceforth the kindly earth would slumber, lapt in universal law. i cannot say how i personally loathed this way of thinking, and how radically false, hollow and disgusting it seemed to me then, and seems to me now.' the crash of came like a thunderbolt, and 'history seemed to have come to life again with all its wild elemental forces.' for the first time he was aware of actual war within a small distance, and the settlement of great questions by sheer force. 'how well i remember my own feelings, which were, i think, the feelings of the great majority of my age and class, and which have ever since remained in me as strong and as unmixed as they were in . i feel them now ( ) as keenly as ever, though the world has changed and thinks and feels, as it seems, quite differently. they were feelings of fierce, unqualified hatred for the revolution and revolutionists; feelings of the most bitter contempt and indignation against those who feared them, truckled to them, or failed to fight them whensoever they could and as long as they could: feelings of zeal against all popular aspirations and in favour of all established institutions whatever their various defects or harshnesses (which, however, i wished to alter slowly and moderately): in a word, the feelings of a scandalised policeman towards a mob breaking windows in the cause of humanity. i should have liked first to fire grapeshot down every street in paris, till the place ran with blood, and next to try louis philippe and those who advised him not to fight by court martial, and to have hanged them all as traitors and cowards. the only event in which gave me real pleasure was the days of june, when cavaignac did what, if he had been a man or not got into a fright about his soul, or if he had had a real sense of duty instead of a wretched consciousness of weakness and a false position, louis philippe would have done months before.' he cannot, he admits, write with calmness to this day of the king's cowardice; and he never passed the tuileries in later life without feeling the sentiment about louis xvi. and his 'heritage splendid' expressed by thackeray's drummer, 'ah, shame on him, craven and coward, that had not the heart to defend it!' 'i have often wondered,' adds fitzjames, 'at my own vehement feelings on these subjects, and i am not altogether prepared to say that they are not more or less foolish. i have never seen war. i have never heard a shot fired in anger, and i have never had my courage put to any proof worth speaking of. have i any right to talk of streets running with blood? is it not more likely that, at a pinch, i might myself run in quite a different direction? it is one of the questions which will probably remain unanswered for ever, whether i am a coward or not. but that has nothing really to do with the question. if i am a coward, i am contemptible: but louis philippe was a coward and contemptible whether i am a coward or not; and my feelings on the whole of this subject are, at all events, perfectly sincere, and are the very deepest and most genuine feelings i have.' fitzjames's only personal experience of revolutionary proceedings was on the famous th of april, when he was in london, but saw only special constables. the events of the day confirmed him in the doctrine that every disorganised mob is more likely to behave in the spirit of the lowest and most contemptible units than in the spirit of what is highest in them. i can only add one little anecdote of those days. a friend of my brother's rushed into his rooms obviously to announce some very exciting piece of news. is the mob triumphant in paris? 'i don't know,' was the reply, 'but a point has been decided in the gorham case.' good evangelical as fitzjames then was, he felt that there were more important controversies going on than squabbles over baptismal regeneration. a curious set of letters written in his first vacation to his friend dr. kitchin show, however, that he then took an eager interest in this doctrine. he discusses it at great length in the evangelical sense, with abundant quotations of texts. while interested in these matters, winning fame at the union and enjoying the good opinion of the apostles, fitzjames was failing in a purely academical sense. he tried twice for a scholarship at trinity, and both times unsuccessfully, though he was not very far from success. the failure excluded him, as things then were, from the possibility of a fellowship, and a degree became valueless for its main purpose. he resolved, therefore, to go abroad with my father, who had to travel in search of health. he passed the winter of - in paris, where he learnt french, and attended sittings of the legislative assembly, and was especially interested by proceedings in the french law-courts. he kept the may term of at cambridge, and went out in the 'poll.' judging from the performances of his rivals, he would probably have been in the lower half of the first class in the classical tripos. although his last months at cambridge were not cheering, he retained a feeling for the place very unlike his feeling towards eton. he had now at least found himself firmly on his own legs, measured his strength against other competitors, and made lasting friendships with some of the strongest. it had been, he says, 'my greatest ambition to get a fellowship at trinity, but i got it at last, however, for i was elected an honorary fellow in the autumn of . i have had my share of compliments, but i never received one which gave me half so much pleasure.' he visited cambridge in later years and was my guest, and long afterwards the guest of his friend maine, at certain christmas festivities in trinity hall. he speaks in the warmest terms of his appreciation of the place, 'old and dignified, yet fresh and vigorous.' nearly his last visit was in the autumn of , when he gave a dinner to the apostles, of whom his son james was then a member. fitzjames's friends were naturally surprised at his throwing up the game. most of them set, as i have intimated, a higher value upon academical honours, considered by themselves, than he ever admitted to be just. possibly they exaggerated a little the disgust which was implied by his absolute abandonment of the course. and yet, i find the impression among those who saw most of him at the time, that the disappointment was felt with great keenness. the explanation is given, i think, in some remarks made by my father to mr watson. my father held that the university system of distributing honours was very faulty. men, he said, wanted all the confidence they could acquire in their own powers for the struggle of life. whatever braced and stimulated self-reliance was good. the honour system encouraged the few who succeeded and inflicted upon the rest a 'demoralising sense of failure.' i have no doubt that my father was, in fact, generalising from the case of fitzjames. what really stung the young man was a more or less dim foreboding of the difficulties which were to meet him in the world at large. he was not one of the men fitted for easy success. the successful man is, i take it, the man with an eye for the line of least resistance. he has an instinct, that is, for the applying his strength in the direction in which it will tell most. and he has the faculty of so falling in with other men's modes of thinking and feeling that they may spontaneously, if unconsciously, form a band of supporters. obstacles become stepping-stones to such men. it was fitzjames's fate through life to take the bull by the horns; to hew a path through jungles and up steep places along the steepest and most entangled routes; and to shoulder his way by main strength and weight through a crowd, instead of contriving to combine external pressures into an agency for propulsion. at this time, the contrast between his acceptance with the ablest of his contemporaries in private and his inability to obtain the public stamp of merit perplexed and troubled him. maine and thompson could recognise his abilities. why could not the examiners? might not his ambition have to struggle with similar obstacles at the bar or in the pulpit? i quote from a letter written by my father during fitzjames's academical career to show what was the relation at this time between the two men. my father dictates to my mother a letter to fitzjames, dated january , .[ ] 'you well know,' he says, 'that i have long since surmounted that paternal ambition which might have led me to thirst for your eminence as a scholar. it has not pleased god to give you that kind of bodily constitution and mental temperament which is essential to such success.' he proceeds to say that, although success in examinations is 'not essential to the great ends of fitzjames's existence, it is yet very desirable that he should become a good scholar from higher motives--such,' he adds, 'as are expounded in bacon's "de augmentis."' he solemnly recommends regular prayer for guidance in studies for which the lower motives may be insufficient. it then occurs to my mother that the advice may be a little discouraging. 'i am reminded by my amanuensis that i have left you in the dark as to my opinion of your probable success in the literary labours to which i have exhorted you. you must be a very mole if the darkness be real. from your childhood to this day i have ever shown you by more than words how high an estimate i entertain both of the depth and the breadth of your capacity. i have ever conversed with you as with a man, not as with a child; and though parental partiality has never concealed from me the fact of your deficiency in certain powers of mind which are essential to early excellence in learning, yet i have never been for a moment distrustful of your possessing an intellect which, if well disciplined and well cultured, will continue to expand, improve, and yield excellent fruit long after the mental faculties of many of your more fortunate rivals will have passed from their full maturity into premature decay. faith in yourself (which is but one of the many forms of faith in god) is the one thing needful to your intellectual progress; and if your faith in yourself may but survive the disappointment of your academical ambition, that disappointment will be converted into a blessing.' the letter shows, i think, under the rather elaborate phraseology, both the perspicuity with which the father had estimated his son's talents and the strong sympathy which bound them together. the reference to fitzjames's 'want of faith in himself' is significant. if want of faith is to be measured by want of courage in tackling the difficulties of life, no man could be really less open to the charge than fitzjames. but my father, himself disposed to anticipate ill fortune, had certain reasons for attributing to his son a tendency in the same direction. fitzjames's hatred of all exaggeration, his resolute refusal to be either sentimental or optimistic, led him to insist upon the gloomy side of things. moreover, he was still indolent; given to be slovenly in his work, and rather unsocial in his ways, though warmly attached to a few friends. my father, impressed by these symptoms, came to the conclusion that fitzjames was probably unsuited for the more active professions for which a sanguine temper and a power of quickly attaching others are obvious qualifications. he therefore looked forward to his son's adoption of the clerical career, which his own deep piety as well as his painful experience of official vexations had long made him regard as the happiest of all careers. circumstances strengthened this feeling. my father's income had been diminished by his resignation, while the education of his two sons became more expensive, and he had to contribute to the support of his brother george. no human being could have made us feel more clearly that he would willingly give us his last penny or his last drop of blood. but he was for a time more than usually vexed and anxious; and the fact could not be quite concealed. fitzjames's comparative failure at cambridge suggests to him a significant remark. after speaking of his 'unteachableness,' he observes that his mind was over-full of thoughts about religion, about politics, about morals, about metaphysics, about all sorts of subjects, except art, literature, or physical science. for art of any kind i have never cared, and do not care in the very least. for literature, as such, i care hardly at all. i like to be amused and instructed on the particular things i want to know; but works of genius, as such, give me very little pleasure, and as to the physical sciences, they interest me only so far as they illustrate the true method of inquiry. they, or rather some of them, have the advantage of being particularly true, and so a guide in the pursuit of moral and distinctively human truth. for their own sake, i care very little about them.' v. reading for the bar my brother had definitely to make the choice of a profession upon which he had been reflecting during his college career. he set about the task in an eminently characteristic way. when he had failed in the last scholarship examination, he sat down deliberately and wrote out a careful discussion of the whole question. the result is before me in a little manuscript book, which fitzjames himself re-read and annotated in , , and . he read it once more in . both text and commentary are significant. he is anxious above all things to give plain, tangible reasons for his conduct. he would have considered it disgraceful to choose from mere impulse or from any such considerations as would fall under the damnatory epithet 'sentimental.' he therefore begins in the most prosaic fashion by an attempt to estimate the pecuniary and social advantages of the different courses open to him. these are in reality the church and the bar; although, by way of exhibiting the openness of his mind, he adds a more perfunctory discussion of the merits of the medical profession. upon this his uncle, henry venn, had made a sufficient comment. 'there is a providential obstacle,' he said, 'to your becoming a doctor--you have not humbug enough.' the argument from these practical considerations leads to no conclusion. the main substance of the discussion is therefore a consideration of the qualities requisite for the efficient discharge of clerical or legal duties. a statement of these qualities, he says, will form the major of his syllogism. the minor will then be, 'i possess or do not possess them'; and the conclusion will follow, 'i ought to be a clergyman or a lawyer.' although it is easy to see that the 'major' is really constructed with a view to its applicability to his own character, he does not explicitly give any opinions about himself. he digested the results of the general discussions into thirteen questions which are not stated, though it is clear that they must have amounted to asking, have i the desirable aptitudes? he has, however, elaborately recorded his answers, 'yes' or 'no,' and noted the precise time and place of answering and the length of time devoted to considering each. he began the inquiry on june , . on september he proceeds to answer the questions which he, acting (as he notes) as judge, had left to himself as jury. questions and can be answered 'immediately'; but no. takes two hours. the th, th, and th were considered together, and are estimated to have taken an hour and a half, between and . p.m.; though, as he was in an omnibus for part of the time and there fell asleep, this must be conjectural. the th question could not be answered at all; but was luckily not important. he had answered the th and th during a railway journey to paris on october , and had thereupon made up his mind. one peculiarity of this performance is the cramped and tortuous mode of expressing himself. his thoughts are entangled, and are oddly crossed by phrases clearly showing the influence of maurice and coleridge, and, above all, of his father. 'maurice's books,' he notes in , 'did their utmost to make me squint intellectually about this time, but i never learnt the trick.' a very different writer of whom he read a good deal at college was baxter, introduced to him, i guess, by one of his father's essays. 'what a little prig i was when i made all these antitheses!' he says in . 'i learnt it of my daddy' is the comment of . 'was any other human being,' he asks in , 'ever constructed with such a clumsy, elaborate set of principles, setting his feelings going as if they were clockwork?' this is the comment upon a passage where he has twisted his thoughts into a cumbrous and perfectly needless syllogism. he makes a similar comment on another passage in , but 'i think,' he says in , 'that i was a heavy old man thirty years ago. fifteen years ago i was at the height of my strength. i am beginning to feel now a little more tolerant towards the boy who wrote this than the man who criticised it in ; but he was quite right.' the critic of , i may note, is specially hard upon the lad of for his ignorance of sound utilitarian authorities. he writes against an allusion to hobbes, 'ignorant blasphemy of the greatest of english philosophers!' the lad has misstated an argument from ignorance of bentham and austin. 'i had looked at bentham at the period (says ), but felt a holy horror of him.' harcourt, it is added, 'used to chaff me about him.' admits that ' , though a fine fellow, was rather too hot in his benthamism; takes it easier, and considers that was fairly right, and that his language if not pharisaically accurate, was plain enough for common-sense purposes.' in fact, both critics admit, and i fully agree with them, that under all the crabbed phraseology there was a very large substratum of good sense and sound judgment of men, to which i add of high principle. among the special qualifications of a lawyer, the desire for justice takes a prominent place in his argument. looking at the whole document from the vantage-ground of later knowledge, the real, though unconscious, purpose seems to be pretty evident. fitzjames had felt a repugnance to the clerical career, and is trying to convince himself that he has reasonable grounds for a feeling which his father would be slow to approve. there is not the least trace of any objection upon grounds of dissent from the articles; though he speaks of responsibility imposed by the solemn profession required upon ordination. his real reason is explained in a long comparison between the 'simple-minded' or 'sympathetic' and the 'casuistical' man. they may both be good men; but one of them possesses what the other does not, a power of at once placing himself in close relations to others, and uttering his own thoughts eloquently and effectively without being troubled by reserves and perplexed considerations of the precise meaning of words. he thinks that every clergyman ought to be ready to undertake the 'cure of souls,' and to be a capable spiritual guide. he has no right to take up the profession merely with a view to intellectual researches. in fact, he felt that he was without the qualifications which make a man a popular preacher, if the word may be used without an offensive connotation. he could argue vigorously, but was not good at appealing to the feelings, or offering spiritual comfort, or attracting the sympathies of the poor and ignorant. substantially i think that he was perfectly right not only in the conclusion but in the grounds upon which it was based. he was a lawyer by nature, and would have been a most awkward and cross-grained piece of timber to convert into a priest. he points himself to such cases as swift, warburton, and sydney smith to show the disadvantage of a secular man in a priest's vestments. when his mind was made up, fitzjames communicated his decision to his father. the dangerous illness of had thrown his father into a nervous condition which made him unable to read the quaint treatise i have described. he appears, however, to have argued that a man might fairly take orders with a view to literary work in the line of his profession. fitzjames yielded this ground but still held to the main point. his father, though troubled, made no serious objection, and only asked him to reconsider his decision and to consult henry venn. henry venn wrote a letter, some extracts from which are appended to the volume with characteristic comments. venn was too sensible a man not to see that fitzjames had practically made up his mind. i need only observe that fitzjames, in reply to some hints in his uncle's letter, observes very emphatically that a man may be serving god at the bar as in the pulpit. his career was now fixed. 'i never did a wiser thing in my life,' says , 'than when i determined not to be a clergyman.' 'amen!' says , and i am sure that no other year in the calendar would have given a different answer. 'if anyone should ever care to know what sort of man i was then,' says fitzjames in , 'and, _mutatis mutandis_, am still, that paper ought to be embodied by reference in their recollections.' fitzjames took a lodging in london, for a year or so, and then joined my father at westbourne terrace. he entered at the inner temple, and was duly called to the bar on january , . his legal education, he says, was very bad. he was for a time in the chambers of mr. (now lord) field, then the leading junior on the midland circuit, but it was on the distinct understanding that he was to receive no direct instruction from his tutor. he was also in the chambers of a conveyancer. i learnt, he says, 'a certain amount of conveyancing, but in a most mechanical, laborious, wooden kind of way, which had no advantage at all, except that it gave me some familiarity with deeds and abstracts. my tutor was a pure conveyancer; so i saw nothing of equity drafting. i worked very hard with him, however, but i was incapable of being taught and he of teaching.' the year was memorable for the act which altered the old system of special pleading. 'the new system was by no means a bad one.... i never learnt it, at least not properly, and while i ought to have been learning, i was still under the spell of an unpractical frame of mind which inclined me to generalities and vagueness, and had in it a vast deal of laziness. when i look back on these times, i feel as if i had been only half awake or had not come to my full growth, though i was just under twenty-five when i was called. how i ever came to be a moderately successful advocate, still more to be a rather distinguished judge, is to me a mystery. i managed, however, to get used to legal ways of looking at things and to the form and method of legal arguments.' he was at the same time going through an apprenticeship to journalism, of which it will be more convenient to speak in the next chapter. it is enough to say for the present that his first efforts were awkward and unsuccessful. after he was called to the bar, he read for the ll.b. examination of the university of london; and not only obtained the degree but enjoyed his only university success by winning a scholarship. one of his competitors was the present sir mountstuart grant duff. this performance is connected with some very important passages in his development. he had made some intimate friendships beyond the apostolic circle, of whom grant duff was one of the first. they had already met at the rooms of charles henry pearson, one of my brother's king's college friends.[ ] grant duff was for a long time in very close intimacy, and the friendship lasted for their lives, uninterrupted by political differences. they were fellow-pupils in field's chambers, were on circuit together for a short time till grant duff gave up the profession; and their marriages only brought new members into the alliance. i must confine myself to saying that my brother's frequent allusions prove that he fully appreciated the value of this friendship. another equally intimate friendship of the same date was with henry john stephen smith.[ ] smith was a godson of my uncle, henry john stephen. he and his sister had been from very early years on terms of especial intimacy with our cousins the diceys. where and when his friendship with my brother began i do not precisely know, but it was already very close. as in some later cases, of which i shall have to speak, the friendship seemed to indicate that fitzjames was attracted by complementary rather than similar qualities in the men to whom he was most attached. no two men of ability could be much less like each other. smith's talents were apparently equally adapted for fine classical scholarship and for the most abstract mathematical investigations. if it was not exactly by the toss of a shilling it was by an almost fortuitous combination of circumstances that he was decided to take to mathematics, and in that field won a european reputation. he soared, however, so far beyond ordinary ken that even europe must be taken to mean a small set of competent judges who might almost be reckoned upon one's fingers. but devoted as he was to these abstruse studies, smith might also be regarded as a typical example of the finest qualities of oxford society. his mathematical powers were recognised by his election to the savilian professorship in , and the recognition of his other abilities was sufficiently shown by the attempt to elect him member for the university in . he would indeed have been elected had the choice been confined to the residents at oxford. smith could discourse upon nothing without showing his powers, and he would have been a singular instance in the house of commons of a man respected at once for scholarship and for profound scientific knowledge, and yet a chosen mouthpiece of the political sentiments of the most cultivated constituency in the country. the recognition of his genius was no doubt due in great part to the singular urbanity which made him the pride and delight of all oxford common rooms. with the gentlest of manners and a refined and delicate sense of humour, he had powers of launching epigrams the subtle flavour of which necessarily disappears when detached from their context. but it was his peculiar charm that he never used his powers to inflict pain. his hearers felt that he could have pierced the thickest hide or laid bare the ignorance of the most pretentious learning. but they could not regret a self-restraint which so evidently proceeded from abounding kindness of heart. smith's good nature led him to lend too easy an ear to applications for the employment of his abilities upon tasks to which his inferiors would have been competent. i do not know whether it was to diffidence and reserve or to the gentleness which shrinks from dispelling illusions that another peculiarity is to be attributed. on religious matters, says his biographer, he was 'absolutely reticent'; he would discuss such topics indeed, but without ever mentioning his own faith. i mention this because it is relevant to his relations with my brother. fitzjames was always in the habit of expressing his own convictions in the most downright and uncompromising fashion. he loved nothing better than an argument upon first principles. his intimacy with smith was confirmed by many long rambles together; and for many years he made a practice of spending a night at smith's house at oxford on his way to and from the midland circuit. there, as he says, 'we used to sit up talking ethics and religion till or a.m.' i could not however, if i wished, throw any light upon smith's views; smith, he says in , is a most delightful companion when he has got over his 'reserve'; and a year later he says that smith is 'nearly the only man who cordially and fully sympathises with my pet views.' what were the pet views is more than i can precisely say. i infer, however, from a phrase or two that smith's conversation was probably sceptical in the proper sense; that is, that he discussed first principles as open questions, and suggested logical puzzles. but my brother also admits that he never came to know what was smith's personal position. he always talked 'in the abstract' or 'in the historical vein,' and 'seemed to have fewer personal plans, wishes and objects of any kind than almost any man i have ever known.' these talks at any rate, with distinguished oxford men, must have helped to widen my brother's intellectual horizon. they had looked at the problems of the day from a point of view to which the apostles seem to have been comparatively blind. another influence had a more obvious result. fitzjames had to read stephen's commentaries and bentham[ ] for the london scholarship. bentham now ceased to be an object of holy horror. my brother, in fact, became before long what he always remained, a thorough benthamite with certain modifications. it was less a case of influence, however, than of 'elective affinity' of intellect. the account of fitzjames's experience at cambridge recalls memories of the earlier group who discussed utilitarianism under the leadership of charles austin and looked up to james mill as their leader. the hatred for 'sentimentalism' and 'vague generalities' and the indifference to mere poetical and literary interests were common to both. the strong points of benthamism may, i think, be summed up in two words. it meant reverence for facts. knowledge was to be sought not by logical jugglery but by scrupulous observation and systematic appeals to experience. whether in grasping at solid elements of knowledge benthamists let drop elements of equal value, though of less easy apprehension, is not to my purpose. but to a man whose predominant faculty was strong common sense, who was absolutely resolved that whatever paths he took should lead to realities, and traverse solid ground instead of following some will-o'-the-wisp through metaphysical quagmires amidst the delusive mists of a lawless imagination, there was an obvious fascination in the bentham mode of thought. it must be added, too, that at this time j. s. mill, the inheritor of bentham's influences, was at the height of his great reputation. the young men who graduated in and the following ten years found their philosophical teaching in mill's 'logic,' and only a few daring heretics were beginning to pick holes in his system. fitzjames certainly became a disciple and before long an advocate of these principles. i find one or two other indications of disturbing studies. he says in a letter that greg's 'creed of christendom' (published in ) was the first book of the kind which he read without the sense that he was trespassing on forbidden ground. he told me that he had once studied lardner's famous 'credibility of the gospel history,' to which greg may not improbably have sent him. the impression made upon him was (though the phrase was used long afterwards) that lardner's case 'had not a leg to stand upon.' from the benthamite point of view, the argument for christianity must be simply the historical evidence. paley, for whom fitzjames had always a great respect, put the argument most skilfully in this shape. but if the facts are insufficient to a lawyer's eye, what is to happen? for reasons which will partly appear, fitzjames did not at present draw the conclusions which to many seem obvious. it took him, in fact, years to develope distinctly new conclusions. but from this time his philosophical position was substantially that of bentham, mill, and the empiricists, while the superstructure of belief was a modified evangelicism. my father's liberality of sentiment and the sceptical tendencies which lay, in spite of himself, in his intellectual tendencies, had indeed removed a good deal of the true evangelical dogmatism. fitzjames for a time, as i have intimated, seems to have sought for a guide in maurice. he had been attracted when at king's college by maurice's personal qualities, and when, in , maurice had to leave king's college on account of his views about eternal punishment, fitzjames took a leading part in getting up a testimonial from the old pupils of his teacher. when he became a law student he naturally frequented maurice's sermons at lincoln's inn. nothing could be more impressive than the manner of the preacher. his voice often trembled with emotion, and he spoke as one who had a solemn message of vast importance to mankind. but what was the message which could reach a hard-headed young 'lawyer by nature' with a turn for benthamism? fitzjames gives a kind of general form of maurice's sermons. first would come an account of some dogma as understood by the vulgar. tom paine could not put it more pithily or expressively. then his hearers were invited to look at the plain words of scripture. do they not mean this or that, he would ask, which is quite different to what they had been made to mean? my answer would have been, says fitzjames, that his questions were 'mere confused hints,' which required all kinds of answers, but mostly the answer 'no, not at all.' then, however, came maurice's own answers to them. about this time his hearer used to become drowsy, with 'an indistinct consciousness of a pathetic quavering set of entreaties to believe what, when it was intelligible, was quite unsatisfactory.' long afterwards he says somewhere that it was 'like watching the struggles of a drowning creed.' fitzjames, however, fancied for a time that he was more or less of a mauricean. from one of his friends, the rev. j. llewelyn davies, i have some characteristic recollections of the time. mr. davies was a college friend, and remembers his combativeness and his real underlying warmth of feeling. he remembers how, in , fitzjames was confident that the 'haves' could beat the 'have nots,' 'set his teeth' and exclaimed, 'let them come on.' mr. davies was now engaged in clerical work at the east-end of london. my brother took pleasure in visiting his friend there, learnt something of the ways of the district, and gave a lecture to a limehouse audience. he attended a coffee-house discussion upon the existence of god, and exposed the inconclusiveness of the atheistic conclusions. on another occasion he went with 'tom,' now judge hughes, to support mr. davies, who addressed a crowd in leman street one sunday night. hughes endeavoured to suppress a boy who was disposed for mischief. the boy threw himself on the ground, with hughes holding him down. fitzjames, raising a huge stick, plunged into the thick of the crowd. no one, however, stood forth as a champion of disorder; and mr. davies, guarded by his stalwart supporters, was able to speak to a quiet audience. fitzjames, says mr. davies, was always ready for an argument in those days. he did not seek for a mere dialectical triumph; but he was resolved to let no assumption pass unchallenged, and, above all, to disperse sentiment and to insist upon what was actual and practical. he wrote to mr. davies in reference to some newspaper controversies: 'as to playing single-stick without being ever hit myself, i have no sort of taste for it; the harder you hit the better. i always hit my hardest.' 'some people profess,' he once said to the same friend, 'that the sermon on the mount is the only part of christianity which they can accept. it is to me the hardest part to accept.' in fact, he did not often turn the second cheek. he said in the same vein that he should prefer the whole of the church service to be made 'colder and less personal, and to revive the days of paley and sydney smith.' (the church of the eighteenth century, only without the disturbing influence of wesley, was, as he once remarked long afterwards, his ideal.) 'after quoting these words,' says mr. davies in conclusion, 'i may be permitted to add those with which he closed the note written to me before he went to india (november , ), "god bless you. it's not a mere phrase, nor yet an unmeaning or insincere one in my mouth--affectionately yours."' i shall venture to quote in this connection a letter from my father, which needs a word of preface. among his experiments in journalism, fitzjames had taken to writing for the 'christian observer,' an ancient, and, i imagine, at the time, an almost moribund representative of the evangelical party. henry venn had suggested, it seems, that fitzjames might become editor. fitzjames appears to have urged that his theology was not of the desired type. he consulted my father, however, who admitted the difficulty to be insuperable, but thought for a moment that they might act together as editor and sub-editor. my father says in his letters (august and , ): 'i adhere with no qualifications of which i am conscious to the theological views of my old clapham friends. you, i suppose, are an adherent of mr. maurice. to myself it appears that he is nothing more than a great theological rhetorician, and that his only definite and appreciable meaning is that of wedding the gospel to some form of philosophy, if so to conceal its baldness. but paul of tarsus many ages ago forbade the banns.' in a second letter he says that there does not seem to be much real difference between fitzjames's creed and his own. 'it seems to me quite easy to have a theological theory quite complete and systematic enough for use; and scarcely possible to reach such a theory with any view to speculation--easy, i mean, and scarcely possible for the unlearned class to which i belong. the learned are, i trust and hope, far more fixed and comprehensive in their views than they seem to me to be, but if i dared trust to my own observation i should say that they are determined to erect into a science a series of propositions which god has communicated to us as so many detached and, to us, irreconcilable verities; the common link or connecting principle of which he has not seen fit to communicate. i am profoundly convinced of the consistency of all the declarations of scripture; but i am as profoundly convinced of my own incapacity to perceive that they are consistent. i can receive them each in turn, and to some extent i can, however feebly, draw nutriment from each of them. to blend them one with another into an harmonious or congruous whole surpasses my skill, or perhaps my diligence. but what then? i am here not to speculate but to repent, to believe and to obey; and i find no difficulty whatever in believing, each in turn, doctrines which yet seem to me incompatible with each other. it is in this sense and to this extent that i adopt the whole of the creed called evangelical. i adopt it as a regulator of the affections, as a rule of life and as a quietus, not as a stimulant to inquiry. so, i gather, do you, and if so, i at least have no right to quarrel with you on that account. only, if you and i are unscientific christians, let us be patient and reverent towards those whose deeper minds or more profound inquiries, or more abundant spiritual experience, may carry them through difficulties which surpass our strength.' my brother's reverence for his father probably prevented him from criticising this letter as he would have criticised a similar utterance from another teacher. he has, however, endorsed it--i cannot say whether at the time--with a tolerably significant remark. 'this,' he says, 'is in the nature of a surrebutter; only the parties, instead of being at issue, are agreed. my opinion as to his opinions is that they are a sort of humility which comes so very near to irony that i do not know how to separate them. fancy old venn and simeon having had more capacious minds than sir james (_credat christianus_).' the 'christian observer' was at this time edited by j. w. cunningham, vicar of harrow, who was trying to save it from extinction. he had been educated at mr. jowett's, at little dunham and at cambridge, and had been a curate of john venn, of clapham. he belonged, therefore, by right, to the evangelical party, and had been more or less known to my father for many years. his children were specially intimate with my aunt, mrs. batten, whose husband was a master at harrow. emelia batten, now mrs. russell gurney, was a friend of cunningham's children, and at this time was living in london, and on very affectionate terms with fitzjames. he used to pour out to her his difficulties in the matter of profession choosing. there were thus various links between the cunninghams and ourselves. mr. cunningham happened to call upon my father at norwich, in the summer of . with him came his eldest daughter by his second wife, mary richenda cunningham, and there my brother saw her for the first time. he met her again in company with miss batten, on march , , as he records, and thereupon fell in love, 'though in a quiet way at first. this feeling has never been disturbed in the slightest degree. it has widened, deepened, and strengthened itself without intermission from that day to this' (january , ). the connection with the 'christian observer' was of value, not for the few guineas earned, but as leading to occasional visits to harrow. fitzjames says that he took great pains with his articles, and probably improved his style, though 'kind old mr. cunningham' had to add a few sentences to give them the proper tone. they got him some credit from the small circle which they reached, but that was hardly his main object. 'this period of my life closed by my being engaged on november , , at brighton, just eighteen years to the day after i went to school there, and by my being married on april , , at harrow church, where my father and mother were married forty years before.' the marriage, he says, 'was a blessed revelation to me. it turned me from a rather heavy, torpid youth into the happiest of men, and, for many years, one of the most ardent and energetic. it was like the lines in tennyson-- a touch, a kiss, the charm was snapped . . . . . . . and all the long-pent stream of life dashed downward in a cataract. i am surprised to find that, when i look back to that happiest and most blessed of days through the haze of upwards of thirty-two years, i do not feel in the least degree disposed to be pathetic over the lapse of life or the near approach of old age. i have found life sweet, bright, glorious. i should dearly like to live again; but i am not afraid, and i hope, when the time comes, i shall not be averse to die.' at this point the autobiographical fragment ceases. i am glad that it has enabled me to use his own words in speaking of his marriage. no one, i think, can doubt their sincerity, nor can anyone who was a witness of his subsequent life think that they over-estimate the results to his happiness. i need only add that the marriage had the incidental advantage of providing him with a new brother and sister; for henry (now sir henry) stewart cunningham, and emily cunningham (now lady egerton), were from this time as dear to him as if they had been connected by the closest tie of blood relationship. footnotes: [footnote : i have quoted a few phrases from it in the previous chapter.] [footnote : he says the th, and mentions more than once a date which afterwards became interesting for another reason. the date given by my mother at the time must be accepted; but this is the only error i have found in my brother's statements--and it is not of profound importance.] [footnote : i have to thank mr. arthur d. coleridge, my brother's schoolfellow and lifelong friend for a letter containing his recollections of this period.] [footnote : macvey napier correspondence.] [footnote : my father was sworn of h. m. privy council october , , and on april , , appointed by her majesty in council member of the committee of privy council for the consideration of all matters relating to trade and foreign plantations (sir james stephen and sir edward ryan were the last two appointed under that form and title); made k.c.b. april , , and finally retired on pension may , , having been on sick leave since october .] [footnote : kindly sent to me by mr. montague butler, of pembroke college, cambridge.] [footnote : see an article by w. d. christie in _macmillan's magazine_ for november .] [footnote : maine was born august , , and therefore six years and a half older than fitzjames.] [footnote : he was proposed by maine on october , and elected november , .] [footnote : _the life of julian fane_, by his intimate friend lord lytton, was published in . it includes some account of the 'apostles.'] [footnote : it refers, i suppose, to the son's failure to get into the first class in the college examination at christmas .] [footnote : pearson died in , after a career in england and australia much troubled by ill health. his book upon _national character_, published in , first made his remarkable abilities generally known, though he had written very ably upon history.] [footnote : born november , , d. february , . see the memoir by c. h. pearson prefixed to the collection of smith's _mathematical papers_ ( ).] [footnote : i guess dumont's 'principles.'] chapter iii _the bar and journalism_ i. introductory i have traced at some length the early development of my brother's mind and character. henceforward i shall have to describe rather the manifestation than the modification of his qualities. he had reached full maturity, although he had still much to learn in the art of turning his abilities to account. his 'indolence' and 'self-indulgence,' if they had ever existed, had disappeared completely and for ever. his life henceforward was of the most strenuous. he had become a strong man--strong with that peculiar combination of mental and moral force which reveals itself in masculine common sense. his friends not unfrequently compared him to dr. johnson, and, much as the two men differed in some ways, there was a real ground for the comparison. fitzjames might be called pre-eminently a 'moralist,' in the old-fashioned sense in which that term is applied to johnson. he was profoundly interested, that is, in the great problems of life and conduct. his views were, in this sense at least, original--that they were the fruit of his own experience, and of independent reflection. most of us are so much the product of our surroundings that we accept without a question the ordinary formulæ which we yet hold so lightly that the principles which nominally govern serve only to excuse our spontaneous instincts. the stronger nature comes into collision with the world, disputes even the most current commonplaces, and so becomes conscious of its own idiosyncrasies, and accepts only what is actually forced upon it by stress of facts and hard logic. the process gives to the doctrines which, with others, represent nothing but phrases, something of the freshness and vividness of personal discoveries. probably ninety-nine men in a hundred assume without conscious inconsistency the validity both of the moral code propounded in the sermon on the mount, and of the code which regulates the actual struggle for life. they profess to be at once gentlemen and christians, and when the two codes come into conflict, take the one which happens to sanction their wishes. they do not even observe that there is any conflict. fitzjames could not take things so lightly. even in his infancy he had argued the first principles of ethics, and worked out his conclusions by conflicts with schoolboy bullies. it is intelligible, therefore, that, as mr. davies reports, the sermon on the mount should be his great difficulty in accepting christianity. its spirit might be, in a sense, beautiful; but it would not fit the facts of life. so, he observes, in his autobiographical fragment, that one of his difficulties was his want of sympathy for the kind of personal enthusiasm with which his father would speak of jesus christ. he tried hard to cultivate the same feelings, but could not do so with perfect sincerity. a man with such distinct and vivid convictions in the place of mere conventional formulæ was naturally minded to utter them. he was constantly provoked by the popular acceptance of what appeared to him shallow and insincere theories, and desired to expose the prevailing errors. but the 'little preacher' of three years old had discovered at one and twenty that the pulpit of the ordinary kind was not congenial to him. his force of mind did not facilitate a quick and instinctive appreciation of other people's sentiments. when he came into contact with a man whose impressions of the world were opposed to his own, he was inclined to abandon even the attempt to account for the phenomenon. a man incapable of seeing things in the proper light was hardly worth considering at all. fitzjames was therefore not sympathetic in the sense of having an imagination ready to place him at other men's point of view. in another sense his sympathies were exceedingly powerful. no man had stronger or more lasting affections. once attached to a man, he believed in him with extraordinary tenacity and would defend him uncompromisingly through thick and thin. if, like johnson, he was a little too contemptuous of the sufferings of the over-sensitive, and put them down to mere affectation or feeblemindedness, he could sympathise most strongly with any of the serious sorrows and anxieties of those whom he loved, and was easily roused to stern indignation where he saw sorrow caused by injustice. i shall mention here one instance, to which, for obvious reasons, i can only refer obscurely; though it occupied him at intervals during many years. shortly after being called to the bar he had agreed to take the place of a friend as trustee for a lady, to whom he was then personally unknown. a year or two later he discovered that she and her husband were the objects of a strange persecution from a man in a respectable position who conceived himself to have a certain hold over them. fitzjames's first action was to write a letter to the persecutor expressing in the most forcible english the opinion that the gentleman's proper position was not among the respectable but at one of her majesty's penal settlements. his opinion was carefully justified by a legal statement of the facts upon which it rested, and the effect was like the discharge of the broadside of an old ship of the line upon a hostile frigate. the persecutor was silenced at once and for life. fitzjames, meanwhile, found that the money affairs of the pair whose champion he had become were deeply embarrassed. he took measures, which were ultimately successful, for extricating them from their difficulties; and until the lady's death, which took place only a year or two before his own, was her unwearied counsellor and protector in many subsequent difficulties. though i can give no details, i may add that he was repaid by the warm gratitude of the persons concerned, and certainly never grudged the thought and labour which he had bestowed upon the case. fitzjames having made up his mind that he was a 'lawyer by nature,' had become a lawyer by profession. yet the circumstances of his career, as well as his own disposition, prevented him from being absorbed in professional duties. for the fifteen years which succeeded his call to the bar he was in fact following two professions; he was at once a barrister and a very active journalist. this causes some difficulty to his biographer. my account of his literary career will have to occupy the foreground, partly because the literary story bears most directly and clearly the impress of his character, and partly because, as will be seen, it was more continuous. i must, however, warn my readers against a possible illusion of perspective. to fitzjames himself the legal career always represented the substantive, and the literary career the adjective. circumstances made journalism highly convenient, but his literary ambition was always to be auxiliary to his legal ambition. it would, of course, have been injurious to his prospects at the bar had it been supposed that the case was inverted; and as a matter of fact his eyes were always turned to the summit of that long hill of difficulty which has to be painfully climbed by every barrister not helped by special interest or good fortune. this much must be clearly understood, but i must also notice two qualifications. in the first place, though he became a journalist for convenience, he was in some sense too a journalist by nature. he found, that is, in the press a channel for a great many of the reflections which were constantly filling his mind and demanding some outlet. he wrote for money, and without the least affectation of indifference to money; but the occupation enabled him also to gratify a spontaneous and powerful impulse. and, in the next place, professional success at the bar was in his mind always itself connected with certain literary projects. almost from the first he was revolving schemes for a great book, or rather for a variety of books. the precise scheme changed from time to time; but the subject of these books is always to be somewhere in the province which is more or less common to law and ethics. sometimes he is inclined to the more purely technical side, but always with some reference to the moral basis of law; and sometimes he leans more to philosophical and theological problems, but always with some reference to his professional experience and to legal applications. so, for example, he expresses a desire (in a letter written, alas! after the power of executing such schemes had disappeared) to write upon the theory of evidence; but he points out that the same principles which underlie the english laws of evidence are also applicable to innumerable questions belonging to religious, philosophical, and scientific inquiries. now the position of a judge or an eminent lawyer appeared to him from the first to be desirable for other reasons indeed, but also for the reason that it would enable him to gain experience and to speak with authority. at moments he had thoughts of abandoning law for literature; although the thoughts disappeared as soon as his professional prospects became brighter. his ideal was always such a position as would enable him to make an impression upon the opinions of his countrymen in that region where legal and ethical speculation are both at home. ii. first years at the bar i will begin by some general remarks upon his legal career, which will thus be understood as underlying his literary career. fitzjames was called to the bar of the inner temple on january , . he had his first brief soon afterwards at the central criminal court, where twenty-five years later he also made his first appearance as a judge. in the same year he joined the midland circuit. he had no legal connections upon that or any other circuit. his choice was determined by the advice of kenneth macaulay, then leader of the midland circuit. he afterwards referred to this as one of the few cases in which good advice had really been of some use. in a letter written in july he observes that the midland is the nearest approach to the old circuits as they were before the days of railways. it was so far from london that the barristers had to go their rounds regularly between the different towns instead of coming down for the day. he describes the party who were thus brought together twice a year, gossiping and arguing all day, with plenty of squabbling and of 'rough joking and noisy high spirits' among the idler, that is, much the larger part. he admits that the routine is rather wearisome: the same judgments and speeches seem to repeat themselves 'like dreams in a fever,' and 'droves of wretched over-driven heavy people come up from the prison into a kind of churchwardens' pew,' when the same story is repeated over and over again. and yet he is profoundly interested. matters turn up which 'seem to me infinitely more interesting than the most interesting play or novel,' and you get strange glimpses of the ways of thinking and living among classes otherwise unknown to you. these criminal courts, he says in another letter, are a 'never-ending source of interest and picturesqueness for me. the little kind of meat-safe door through which the prisoners are called up, and the attendant demon of a gaoler who summons them up from the vasty deep and sends them back again to the vasty deep for terms of from one week to six years, have a sort of mysterious attraction.' mr. franklin lushington, who was my brother's contemporary on the circuit and ever afterwards an intimate friend, has kindly given me his impressions of this period. it would have been difficult, he says, to find a circuit 'on which the first steps of the path that opens on general eminence in the profession were slower to climb than on the midland.' it was a small circuit, 'attended by some seventy or eighty barristers and divided into two or three independent and incompatible sets of quarter sessions, among which after a year or so of tentative experience it was necessary to choose one set and stand by it. fitzjames and i both chose the round of the lincolnshire, nottinghamshire, and derbyshire sessions; which involved a good deal of travelling and knocking about in some out-of-the-way country districts, where the sessions bar is necessarily thrown into circumstances of great intimacy. even when a sessions or assize reputation was gained, it was and remained intensely local. the intricate points relative to settlements and poor-law administration, which had provided numerous appeals to the higher courts in a previous generation, had dwindled gradually to nothing. even the most remarkable success, slowly and painfully won in one county, might easily fail to produce an effect in the next, or to give any occasion for passing through the thickset hedge which parts provincial from metropolitan notoriety. the most popular and admired advocate in the lincolnshire courts for many years was our dear friend f. flowers, afterwards a police magistrate, one of the wittiest, most ingenious, and most eloquent of the bar. though year after year he held every lincolnshire jury in the hollow of his hand, and frequently rose to a strain of powerful and passionate oratory which carried away himself and his hearers--not lincolnshire folk only--in irresistible sympathy with his cause, flowers remained to his last day on circuit utterly unknown and untried in the adjacent shires of derby and nottingham.' a circuit bar, adds mr. lushington, 'may be roughly divided into three classes: those who are determined to make themselves heard; those who wish to be heard if god calls; and those who without objecting to be heard wish to have their pastime whether they are heard or not. fitzjames was in the first category, and from the first did his utmost to succeed, always in the most legitimate way.' no attorney, looking at the rows of wigs in the back benches, could fail to recognise in him a man who would give his whole mind to the task before him. 'it was natural to him to look the industrious apprentice that he really was; always craving for work of all kinds and ready at a moment's notice to turn from one task to another. i used to notice him at one moment busy writing an article in complete abstraction and at the next devouring at full speed the contents of a brief just put into his hand, and ready directly to argue the case as if it had been in his hand all day.' fitzjames not long afterwards expressed his own judgment of the society of which he had become a member. the english bar, he says,[ ] 'is exactly like a great public school, the boys of which have grown older and have exchanged boyish for manly objects. there is just the same rough familiarity, the same general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner.' it would astonish outsiders if they could hear the remarks sometimes addressed by the british barrister to his learned brother--especially on circuit. the bar, he concludes, 'are a robust, hard-headed, and rather hard-handed set of men, with an imperious, audacious, combative turn of mind,' sometimes, though rarely, capable of becoming eloquent. their learning is 'multifarious, ill-digested and ill-arranged, but collected with wonderful patience and labour, with a close exactness and severity of logic, unequalled anywhere else, and with a most sagacious adaptation to the practical business of life.' fitzjames's position in this bigger public school had at any rate one advantage over his old etonian days. there was no general prejudice against him to be encountered; and in the intellectual 'rough and tumble' which replaced the old school contests his force of mind was respected by everyone and very warmly appreciated by a chosen few. among his closest intimates were mr. lushington and his old schoolfellow mr. arthur coleridge, who became clerk of assize upon the circuit. at starting he had also the society of his friend grant duff. they walked together in the summer of , and visited the trappist monastery in charnwood forest. there they talked to a shaven monk in his 'dreary white flannel dress,' bound with a black strap. they moralised as they returned, and fitzjames thought on the whole that his own life was wholesomer than the monastic. he hopes, however, that the monk and his companions may 'come right,' as 'no doubt they will if they are honest and true.' 'i suppose one may say that god is in convents and churches as well as in law courts or chambers--though not to my eyes so palpably.' sir m. grant duff left the circuit after a year or two; but fitzjames found a few other congenial companions with whom he could occasionally walk and often argue to his heart's content. among his best friends was kenneth macaulay, who became a leader on the circuit, and who did his best to introduce fitzjames to practice. mr. arthur coleridge, too, was able to suggest to the judges that fitzjames should be appointed to defend prisoners not provided with counsel. this led by degrees to his becoming well known in the crown court, although civil business was slow in presenting itself. several of the judges took early notice of him. in he has some intercourse with lord campbell, then chief justice, and with chief baron pollock, both of them friends of his father. he was 'overpowered with admiration' at campbell's appearance. campbell was 'thickset as a navvy, as hard as nails,' still full of vigour at the age of seventy-six, about the best judge on the bench now, and looking fit for ten or twelve years' more of work.[ ] pollock was a fine lively old man, thin as a threadpaper, straight as a ramrod, and full of indomitable vivacity. the judges, however, who formed the highest opinion of him and gave him the most encouragement were lord bramwell and willes. in he observes that he was about to take a walk with alfred wills of the 'high alps.' this was the present mr. justice wills; who has also been kind enough to give me some recollections which are to the purpose in this place. wills was called to the bar in and joined the midland circuit, but attended a different set of quarter sessions. he saw a good deal of fitzjames, however, at the assizes; and though not especially intimate, they always maintained very friendly relations. the impression made upon wills in these early years was that fitzjames was a solitary and rather unsocial person. he was divided from his fellows, as he had been divided from his companions at school and college, by his absorption in the speculations which interested him so profoundly. 'he was much more learned, much better read, and had a much more massive mind than most of us, and our ways and talks must have seemed petty and trivial to him.' though there were 'some well-read men and good scholars among us, even they had little taste for the ponderous reading in which fitzjames delighted.' wills remembers his bringing hobbes' 'leviathan' with him, and recreating himself with studying it after his day's work. to such studies i shall have to refer presently, and i will only say, parenthetically, that if mr. justice wills would read hobbes, he would find, though he tells me that he dislikes metaphysics, that the old philosopher is not half so repulsive as he looks. still, a constant absorption in these solid works no doubt gave to his associates the impression that fitzjames lived in a different world from theirs. he generally took his walks by himself, coleridge being the most frequent interrupter of his solitude. he would be met pounding along steadily, carrying, often twirling, a 'very big stick,' which now and then came down with a blow--upon the knuckles, i take it, of some imaginary blockhead on the other side--muttering to himself, 'immersed in thought and with a fierce expression of concentrated study.' he did not often come to mess, and when he did found some things of which he did not approve. barristers, it appears, are still capable of indulging in such tastes as were once gratified by the game of 'high jinks,' celebrated in 'guy mannering.' the circuit court was the scene of a good deal of buffoonery. it was customary to appoint a 'crier'; and fitzjames, 'to his infinite disgust, was elected on account of his powerful voice. he stood it once or twice, but at last broke out in a real fury, and declared he would never come to the circuit court again, calling it by very strong names. if he had been a less powerful man i am sure that there would have been a fight; but no one cared to tackle that stalwart frame, and i am not sure that the assailant would have come out of the fray alive if he had.' the crisis of this warfare appears to have happened in , when yorkshire was added to the midland circuit, and an infusion of barristers from the northern circuit consequently took place. it seems that the manners and customs of the northerners were decidedly less civilised than those of their brethren. a hard fight had to be fought before they could be raised to the desired level. in i find that fitzjames proposed the abolition of the circuit court. he was defeated by twenty votes to fifteen; and marvels at the queer bit of conservatism cropping up in an unexpected place. in spite of these encounters, fitzjames not only formed some very warm friendships on circuit, but enjoyed many of the social meetings, and often recurred to them in later years. he only despised tomfoolery more emphatically than his neighbours. nobody, indeed, could be a more inconvenient presence where breaches of decency or good manners were to be apprehended. i vividly remember an occasion upon which he was one of a little party of young men on a walking tour. a letter read out by one of them had the phrase, 'what a pity about mrs. a.!' someone suggested a conjectural explanation not favourable to mrs. a.'s character. he immediately came in for a stern denunciation from fitzjames which reduced us all to awestruck silence, and, i hope, gave the speaker an unforgetable lesson as to the duty of not speaking lightly in matters affecting female reputation. he collapsed; and i do not recollect that he ventured any comment upon a letter of the next morning which proved his conjecture to be correct. the principle was the same. these characteristics, as i gather both from mr. justice wills and from mr. lushington, caused fitzjames to be the object rather of respect than of general popularity. his friends could not fail to recognise the depth of his real kindness of heart. mr. justice wills refers to one little incident of which my brother often spoke. fitzjames visited him at the 'eagle's nest,' in , and there found him engaged in nursing auguste balmat, the famous guide, who was dying of typhoid fever. the natives were alarmed, and the whole labour of nursing fell upon mr. and mrs. wills. fitzjames, on his arrival, relieved them so far as he could, and enabled them to get some nights' sleep. i remember his description of himself, sitting up by the dying man, with a volume of 'pickwick' and a vessel of holy water, and primed with some pious sentences to be repeated if the last agony should come on. it was a piece of grim tragedy with a touch of the grotesque which impressed him greatly. 'i never knew anyone,' says mr. justice wills, 'to whom i should have gone, if i wanted help, with more certainty of getting it.' when fitzjames was on the bench, he adds, and he had been himself disappointed of reaching the same position under annoying circumstances, he had to appear in a patent case before his friend. fitzjames came down to look at a model, and wills said, 'your lordship will see,' &c. 'he got hold of the hand next his own, gave me a squeeze which i did not forget in a hurry, and whispered, "if you ever call me 'my lordship' again, i shall say something!"' that hand-grip, indeed, as wills remarks, was eminently characteristic. it was like the squeeze of a vice, and often conveyed the intimation of a feeling which shrank from verbal expression. it is plain enough that a man of such character would not find some difficulties smoothed for him. he could not easily learn the lesson of 'suffering fools gladly.' he formed pretty strong views about a man and could express them frankly. the kind of person whom carlyle called a windbag, and to whom he applied equally vigorous epithets, was especially obnoxious to him, however dexterous might be such a man's manipulation of difficult arguments. his talent, too, scarcely lent itself to the art of indirect intimations of his opinions. he remarks himself, in one of his letters, that he is about as clever at giving hints as the elder osborne in 'vanity fair'; of whom thackeray says that he would give what he called a 'hint' to a footman to leave his service by kicking the man downstairs. and, therefore, i suspect that when fitzjames considered someone--even a possible client--to be a fool or a humbug, his views might be less concealed than prudence would have dictated. 'when once he had an opportunity of showing his capacities,' says mr. lushington, 'the most critical solicitor could not fail to be satisfied of his vigour and perseverance; his quick comprehension of, and his close attention to detail; and his gift in speaking of clear common-sense and forcible expression, free from wearisome redundancy or the suggestion of an irony that might strike above the heads of the jury. he gained the confidence of clients of all sorts--some of curious, impulsive, and not over-strict character, who might, perhaps, have landed a weaker or less rigidly high-principled advocate in serious blunders; and i do not think that he ever lost a client whom he had once gained.' but the first step was not easy. his solitary ways, his indifference to the lighter pursuits of his companions, and his frequent absorption in other studies, made him slow to form connections and prevented him from acquiring early, if he ever fully acquired, the practical instinct which qualifies a man for the ordinary walk of law courts. when, says mr. justice wills, 'he got you by yourself in a corner--with no opportunity of dancing round him--in a single combat of stroke for stroke, real business, conditions defined and mastered, he was a most formidable antagonist, mercilessly logical, severely powerful, with the hand of a giant.' but he was, says the same critic, rather too logical for the common tricks of the trade, which are learnt by a long and persistent handling of ordinary business. he did not understand what would 'go down,' and what was of 'such a character that people would drive a coach and six through precedents and everything else in order to get rid of it.' he was irritated by an appeal to practical consequences from what he considered to be established principles. then, too, his massive intellect made him wanting in pliability. 'he could not change front in presence of the enemy'; and rather despised the adaptations by which clever lawyers succeed in introducing new law under a pretence of applying old precedents. as i have already said, he was disgusted with the mere technicalities of the law, and the conversion of what ought to be a logical apparatus for the discovery of truth into an artificial system of elaborate and superfluous formalities. his great ambition was (in his favourite expression) to 'boil down' the law into a few broad common-sense principles. he was, therefore, not well qualified for some branches of legal practice, and inclined to regard skill of the technical kind with suspicion, if not with actual dislike. upon this, however, i shall have to dwell hereafter. meanwhile, he was deeply interested in the criminal cases, which were constantly presenting ethical problems, and affording strange glimpses into the dark side of human nature. such crimes showed the crude, brutal passions, which lie beneath the decent surface of modern society, and are fascinating to the student of human nature. he often speaks of the strangely romantic interest of the incidents brought to light in the 'state trials'; and in these early days he studied some of the famous cases, such as those of palmer and dove, with a professional as well as a literary interest. in later life he avoided such stories; but at this period he occasionally made a text of them for newspaper articles, and was, perhaps, tempted to adopt theories of the case too rapidly. this was thought to be the case in regard to one bacon, who was tried in lincoln in the summer of . the case was one to which fitzjames certainly attached great importance, and i will briefly mention it before passing to his literary career. bacon and his wife were tried at london in the spring of for the murder of their two young children. it was sufficiently proved upon that occasion that mrs. bacon (who had already been in a madhouse) committed the crime in a fit of insanity. bacon, however, had endeavoured to manufacture some evidence in order to give countenance to a theory that the murder had been committed by housebreakers during his absence. he thus incurred suspicion, and was placed upon trial with his wife. it also came out that he had been tried (and acquitted) a year before for setting fire to his own house, and reasons appeared for suspecting him of an attempt to poison his mother at stamford three years previously. upon these facts fitzjames wrote an article in the 'saturday review.'[ ] he declared that the crime was as interesting, except for the want of dignity of the actors, as the events which gave the plot of some of the tragedies of �schylus. it reminded him, too, of the terrible story of 'jane eyre.' for we had to suppose either that bacon suffered by his marriage to a mad woman who had poisoned his mother, burnt his house, and cut his children's throats; or else that the wife's last outbreak had been the incidental cause of the discovery of his own previous crimes. in the last case we had an instance of that 'retributive vengeance' which, though it cannot be 'reduced to a very logical form, speaks in tones of thunder to the imaginations of mankind.' the case came, as it happened, to the midland circuit. bacon was tried in lincoln on july for poisoning his mother. fitzjames writes from the court, where he is waiting in the hope that he may be asked by the judge to defend the prisoner. while he writes, the request comes accordingly, and he feels that if he is successful he may make the first step to fortune. he was never cooler or calmer, he says, in his life, and has always, 'in a way of his own,' 'truly and earnestly trusted in god to help him in all the affairs of life.' he made his speech, and suggested the theory already noticed, that the poisoning might have been the act of the mad wife. the judge paid him a high compliment, but summed up for a conviction, which accordingly followed. fitzjames himself thought, though he was not 'quite sure,' that the man was guilty. he commented upon the case in another article in the 'saturday review,' not, of course, to dispute the verdict, but to draw a characteristic inference. is it not, he asks, very hard upon a poor prisoner that he should have no better means of obtaining counsel than the request of the judge at the last moment to some junior barrister? they manage these things, he thinks, better in france; though 'we have no reason to speak with disrespect of the gentleman who conducted the case.' whatever may have been thought of fitzjames's judgment in this case, he gradually, as i have said, came to be regularly employed upon similar occasions. by slow degrees, too, more profitable briefs came to him; but he was in the trying position of appearing on a good many occasions which excited much interest, while more regular work still declined to present itself in corresponding proportions. now and then a puff of wind filled his sails for the moment, but wearying calms followed, and the steady gale which propels to fortune and to the highest professional advancement would not set in with the desired regularity. iii. the 'saturday review.' here therefore i leave the story of his main profession to take up his work in other capacities. when he left cambridge, the 'morning chronicle' was passing through a short phase of unprofitable brilliancy. it had been bought by the 'peelites,' who are reported to have sunk as much as , _l._ upon it. john douglas cook was editor, and among his contributors were maine and others of fitzjames's college friends. naturally he was anxious to try his hand. he wrote several articles in the winter of - . 'the pay,' says fitzjames, 'was very high-- _l._ _s._ an article, and i thought that i was going to make a fortune. i was particularly pleased, i remember, with my smartness and wit, but, alas and alas! cook found me out and gradually ceased to put in my articles. i have seldom felt much keener disappointment, for i was ardently desirous of standing on my own legs and having in my pocket a little money of my own earning. i took heart, however, and decided to try elsewhere. i wrote one or two poor little articles in obscure places, and at last took (as already stated) to the "christian observer." 'i took great pains,' he says, 'with my articles, framing my style upon conveyancing and special pleading, so that it might be solid, well-connected, and logical, and enable me to get back to the paradise of _l._ _s._ an article, from which, as i strongly suspected, my flippancy had excluded me.' 'flippancy' was clearly not in his line. besides the 'christian observer,' i find that the 'law magazine' took a few articles from him, but there is no trace of other writings until . in that year was published the first number of 'cambridge essays,' which, in alliance with a series of 'oxford essays,' lived for a couple of years and contained some very good work. maine became first known to the public by an article upon roman law contributed in , and a study of coleridge's philosophy by professor hort, another apostle, is one of the best extant discussions of a difficult subject. fitzjames, in , wrote a characteristic article upon 'the relation of novels to life,' and in one upon 'characteristics of english criminal law.' the articles roused some interest and helped to encourage him. meanwhile the 'morning chronicle' had changed hands, and its previous supporters set up the 'saturday review,' of which the first number appeared on november , . john douglas cook, who took command of the new adventure and brought some followers from the 'morning chronicle,' was a remarkable man in his way. he was one of the innumerable young scots who go out to seek their fortune abroad. he had received some appointment in india, quarrelled with his employers, and came home on foot, or partly on foot, for his narratives of this period were generally, it was thought, marked rather by imaginative fervour than by a servile adherence to historic accuracy. he found work on the 'times,' supported mr. walter in an election, was taken up by the duke of newcastle, and was sent by him to inquire into the revenues of the duchy of cornwall. he then appeared as an editor, and, if he failed in the 'morning chronicle,' made ample amends by his guidance of the 'saturday review.' he was a man of no particular education, and apparently never read a book. his language and manners were such as recalled memories of the old days of maginn and other bohemians whose portraits are drawn in 'pendennis.' but besides other qualities which justified the friendship and confidence of his supporters, cook had the faculty of recognising good writing when he saw it. newspapers have occasionally succeeded by lowering instead of raising the standard of journalism, but the 'saturday review' marked at the time as distinct an advance above the previous level as the old 'edinburgh review.' in his fifteen years' editorship of the 'saturday review,' cook collected as distinguished a set of contributors as has ever been attracted to an english newspaper. many of them became eminent in other ways. maine and sir w. harcourt were, i believe, among the earliest recruits, following cook from the 'morning chronicle.' others, such as professor freeman, mark pattison, mr. goldwin smith, mr. john morley, the late lord justice bowen, and many other well-known writers, joined at different periods and with more or less regularity, but from the first the new journal was wanting neither in ability nor audacity.[ ] two of the chief contributors who became close friends of fitzjames's enjoyed a reputation among their friends altogether out of proportion to their public recognition. the first was george stovin venables. he was a fellow of jesus college, cambridge. he had been a first-classman in the classical tripos of , when he was placed next to w. h. thompson, afterwards master of trinity. he too was an apostle and an intimate both of tennyson and thackeray. indeed, the legend ran that it was his fist which, at charterhouse school, had disfigured thackeray's nose for life. he was tall, strikingly handsome, and of singularly dignified appearance. though recognised as an intellectual equal by many of the ablest men of his time, he chose paths in which little general reputation could be won. he made a large income at the parliamentary bar, and amused himself by contributing regularly to the 'saturday review.'[ ] stories used to be current of the extraordinary facility with which he could turn out his work, and i imagine that the style of the new periodical was determined more by his writing than by that of any of his colleagues. the political utterances were supposed to be supercilious, and were certainly not marked by any fiery enthusiasm. venables had an objection to the usual editorial 'we,' and one result was that the theories of the paper were laid down with a certain impersonal pomp, as gnomic utterances of an anonymous philosopher. i need not, however, discuss their merit. venables wrote, if i am not mistaken, some admirable literary criticisms, and claimed to have been one of the first to recognise the poetical merits of his friend tennyson, and, after a long interval, those of mr. swinburne, whom he regarded as the next legitimate heir to the throne. venables was warmly beloved by his intimates, and fitzjames through life frequently declared that he felt for him a kind of filial affection. the other saturday reviewer with whom he became specially intimate was thomas collett sandars. he was a balliol scholar and a fellow of oriel, and is known as an editor ( ) of justinian's 'institutes.' it is, i am told, a useful textbook, but the editor makes no special pretensions to original research. sandars was at one time a professor of constitutional law in the inns of court, but he was much occupied in various financial undertakings and did little to make himself known to the outside world. he was a man, however, of great literary taste, and overflowing with humorous and delightful conversation. he survived my brother by a few months only, and in the interval spoke to me with great interest of his memories of the old 'saturday review' days. he was in early days on most intimate terms with fitzjames; they discussed all manner of topics together and were for some time the two principal manufacturers of what were called 'middles'--the articles which intervened between the political leaders and the reviews of books. these became gradually one of the most characteristic facts of the paper, and, as i shall presently explain, gave an opportunity of which fitzjames was particularly glad to avail himself. the first contribution from fitzjames appeared in the second number of the paper. for a short time its successors are comparatively rare, but in the course of the following spring he begins to contribute regularly two articles a week, and before long there are sufficient indications that the editor looks upon him with favour. articles running to a length of four columns, for example, show that he was not only pouring himself out pretty freely, but that his claims upon space were not grudgingly treated. in march he says that he is 'very nervous' about his articles and doubtful of cook's approval, but in the same month he is greatly cheered by a conversation upon the subject with maine, and begins to perceive that he has really got a permanent footing. he used to tell a story which i cannot perfectly recollect, but which was to the following effect. he had felt very doubtful of his own performances; cook did not seem at first to be cordial, and possibly his attempts to 'form a style' upon the precedents of conveyancing were not altogether successful. feeling that he did not quite understand what was the style which would win approval, he resolved that, for once, he would at least write according to his own taste and give vent to his spontaneous impulses, even though it might be for the last time of asking. to his surprise, cook was delighted with his article, and henceforward he was able to write freely, without hampering himself by the attempt to satisfy uncongenial canons of journalism.[ ] however this may be, he was certainly writing both abundantly and vigorously during the following years. the 'saturday review,' like the old 'edinburgh,' was proud beyond all things of its independence. it professed a special antipathy to popular humbugs of every kind, and was by no means backward in falling foul of all its contemporaries for their various concessions to popular foibles. the writers were for the most part energetic young men, with the proper confidence in their own infallibility, and represented faithfully enough the main current of the cultivated thought of their day. the paper had occasionally to reflect the high church proclivities of its proprietor, but the articles showing that tendency were in odd contrast to the general line of argument, which more naturally expressed the contempt of the enlightened for every popular nostrum. fitzjames, in particular, found occasions for energetically setting forth his own views. he had, of course, a good many chances of dealing with legal matters. he writes periodical articles upon 'the assizes' or discusses some specially interesting case. he now and then gets a chance of advocating a codification of the laws, though he admits the necessity of various preliminary measures, and especially of a more philosophical system of legal education. he denounces the cumbrous and perplexed state of the law in general so energetically, that the arguments have to be stated as those of certain reformers with whom the paper does not openly identify itself. as became a good saturday reviewer, he fell foul of many popular idols. one regular chopping-block for irreverent reviewers was dr. cumming, who was then proving from the apocalypse that the world would come to an end in . his ignorance of greek and of geography, his audacious plagiarisms from e. b. elliott (a more learned though not a much wiser interpreter), and his insincerity, are denounced so unsparingly as to suggest some danger from the law of libel. dr. cumming, however, was wise in his generation, and wrote a letter of such courteous and dignified remonstrance that the 'saturday review' was forced to reply in corresponding terms, though declining to withdraw its charges. the whole world of contemporary journalism is arraigned for its subserviency to popular prejudices. the 'record' is lashed for its religious rancour, and the 'reasoner' for its vapid version of popular infidelity, though it is contemptuously preferred, in point of spirit, to the 'record.' fitzjames flies occasionally at higher game. the 'times,' if he is to be believed, is conspicuous for the trick of spinning empty verbiage out of vapid popular commonplaces, and, indeed, good sense and right reason appear to have withdrawn themselves almost exclusively to the congenial refuge of the 'saturday review.' there is, however, no shrine sacred to the vulgar in which the writer delights in playing the part of iconoclast so heartily as in that represented by the comic literature of the day. this sentiment, as i have said, had grown up even in eton schooldays. there was something inexpressibly repugnant to fitzjames in the tone adopted by a school of which he took dickens and douglas jerrold to be representatives. his view of the general literary question comes out oddly in the article upon 'the relation of novels to life,' contributed to the 'cambridge essays.' he has no fear of modern æsthetes before his eyes. his opinion is that life is too serious a business for tomfoolery and far too tragic for needless ostentation of sentiment. a novel should be a serious attempt by a grave observer to draw a faithful portrait of the actual facts of life. a novelist, therefore, who uses the imaginary facts, like sterne and dickens, as mere pegs on which to hang specimens of his own sensibility and facetiousness, becomes disgusting. when, he remarks, you have said of a friend 'he is dead,' all other observations become superfluous and impertinent. he, therefore, considers 'robinson crusoe' to represent the ideal novel. it is the life of a brave man meeting danger and sorrow with unflinching courage, and never bringing his tears to market. dickens somewhere says, characteristically, that 'robinson crusoe' is the only very popular work which can be read without a tear from the first page to the last. that is precisely the quality which commends it to this stern reader, who thought that in fiction as in life a man should keep his feelings under lock and key. in spite of his rather peculiar canons of taste, fitzjames was profoundly interested, even in spite of himself, in some novels constructed on very different principles. in these early articles he falls foul of 'mdme. de bovary,'[ ] from the point of view of the simple-minded moralist, but he heartily admires balzac, whom he defends against a similar charge, and in whose records of imaginary criminals--records not so famous in england at that time as they now are--he found an interest almost equal to that of the 'state trials' and palmer's case. he could also, i must add, enjoy dickens's humour as heartily as any one. he was well up in 'pickwick,' though i don't know whether he would have been equal to calverley's famous examination-paper, and he had a special liking for the 'uncommercial traveller.' but when dickens deserted his proper function fitzjames was roused to indignation. the 'little nell' sentimentalism and the long gallery of melodramatic deathbeds disgusted him, while the assaults upon the governing classes generally stirred his wrath. the satire upon individuals may be all very well in its place, but a man, he said, has no business to set up as the 'regenerator of society' because he is its most 'distinguished buffoon.' he was not picking his words, and 'buffoon' is certainly an injudicious phrase; but the sentiment which it expressed was so characteristic and deeply rooted that i must dwell a little upon its manifestation at this time. the war between the saturday reviewers and their antagonists was carried on with a frequent use of the nicknames 'prig' and 'cynic' upon one side, and 'buffoon' and 'sentimentalist' upon the other. phrases so employed soon lose all definite meaning, but it is, i think, easy to see what they meant as applied either by or to fitzjames. the 'comic writers' for him were exponents of the petty and vulgar ideals of the lower middle classes of the day. the world of dickens's novels was a portrait of the class for which dickens wrote. it was a world of smug little tradesmen of shallow and half-educated minds, with paltry ambitions, utter ignorance of history and philosophy, shrinking instinctively from all strenuous thought and resenting every attack upon the placid optimism in which it delighted to wrap itself. it had no perception of the doubts and difficulties which beset loftier minds, or any consciousness of the great drama of history in which our generation is only playing its part for the passing hour. whatever lay beyond its narrow horizon was ignored, or, if accidentally mentioned, treated with ignorant contempt. this was the spirit which revealed itself in the pæans raised over the exhibition of , accepted by the popular voice of the day as the inauguration of a millennium of peace and free trade. but all its manifestations were marked by the same narrowness. the class had once found a voice for its religious sentiments in puritanism, with stern conceptions of duty and of a divine order of the universe. but in its present mood it could see the puritan leaders represented by a wretched stiggins--a pothouse tartufe just capable of imposing upon the friends of mrs. gamp. its own religion was that kind of vapid philanthropic sentiment which calls itself undenominational; a creed of maudlin benevolence from which all the deeper and sterner elements of religious belief have been carefully purged away, and which really corresponds to the moods which mr pickwick stimulated by indulgence in milk-punch. when it came face to face with death, and sin, and suffering, it made them mere occasions for displays of sentimentalism, disgusting because such trifling with the most awful subjects shows a hopeless shallowness of nature. dickens's indulgence in deathbeds meant an effeminate delight in the 'luxury of grief,' revolting in proportion to the solemnity of the topic. this was only another side of the levity with which he treated serious political and social problems. the attitude of mind represented is that of the ordinary newspaper correspondent, who imagines that a letter to the 'times' is the ultimate remedy for all the evils to which flesh is heir. dickens's early novels, said fitzjames, represented an avatar of 'chaff'; and gave with unsurpassable vivacity the genuine fun of a thoroughbred cockney typified by sam weller. sam weller is delightful in his place; but he is simply impertinent when he fancies that his shrewd mother wit entitles him to speak with authority upon great questions of constitutional reform and national policy. dickens's later assaults upon the 'circumlocution office,' the court of chancery, were signal instances of this impatient, irritable, and effeminate levity. fitzjames elaborated this view in an article upon 'the license of novelists' which appeared in the 'edinburgh review' for july . he fell foul of 'little dorrit'; but the chief part of the article referred to charles reade's 'never too late to mend.' that novel was briefly a travesty of a recent case in which a prisoner had committed suicide in consequence, as was suggested, of ill-treatment by the authorities of the gaol. the governor had been tried and punished in consequence. fitzjames gives the actual facts to show how reade had allowed himself, as a writer of fiction, to exaggerate and distort them, and had at the same time taken the airs of an historian of facts and bragged of his resolution to brand all judges who should dare to follow the precedent which he denounced. this article, i may notice, included an injudicious reference to the case of the post office and rowland hill, which was not, i believe, due to fitzjames himself, and which enabled dickens to reply with some effect in 'household words.' dickens's attacks upon the 'circumlocution office' and its like were not altogether inconsistent with some opinions upon the english system of government to which, as i shall have to show, fitzjames himself gave forcible expression in after years. they started, however, from a very different point of view, and for the present he criticised both dickens and some of the similar denunciations contained in carlyle's 'past and present,' and 'latter-day pamphlets.' the assault upon the 'circumlocution office' was, i doubt not, especially offensive because 'barnacle tite,' and the effete aristocrats who are satirised in 'little dorrit,' stood for representatives of sir james stephen and his best friends. in fact, i think, dickens took the view natural to the popular mind, which always embodies a grievance in a concrete image of a wicked and contemptible oppressor intending all the evils which result from his office. a more interesting and appropriate topic for art of a serious kind would be the problem presented by a body of men of the highest ability and integrity who are yet doomed to work a cumbrous and inadequate system. but the popular reformer, to whom everything seems easy and obvious, explains all abuses by attributing them to the deliberate intention of particular fools and knaves. this indicates fitzjames's position at the time. he was fully conscious of the administrative abuses assailed, and was as ardent on law reform as became a disciple of bentham. but he could not accept the support of men who thought that judicious reform could be suggested by rough caricatures, and that all difficulties could be appreciated by the first petty tradesmen who encountered an incidental grievance or by such summary remedies as were to be suggested off-hand by anonymous correspondents. the levity, the ignorance, the hasty and superficial irritability of these reformers, their enormous conceit and imperturbable self-complacency revolted him. english life he declared in the 'edinburgh review' is 'too active, english spheres of action too wide, english freedom too deeply rooted, to be endangered by a set of bacchanals drunk with green tea and not protected by petticoats. boundless luxury,' he thought, 'and thirst for excitement, have raised a set of writers who show a strong sympathy for all that is most opposite to the very foundations of english life.' the 'saturday review' articles enlarge upon the same theme. he will not accept legislators whose favourite costume is the cap and bells, or admit that men who 'can make silly women cry can, therefore, dictate principles of law and government.' the defects of our system are due to profound historical causes. 'freedom and law and established rules have their difficulties,' not perceptible to 'feminine, irritable, noisy minds, always clamouring and shrieking for protection and guidance.' the end to which dickens would really drive us would be 'pure despotism. no debates to worry effeminate understandings, no laws to prevent judges from deciding according to their own inclination, no forms to prevent officials from dealing with their neighbours as so many parcels of ticketed goods.'[ ] these utterances show the combination of the old puritanic leaven, to which all trifling and levity is hateful, and the strong patriotic sentiment, to which dickens in one direction and the politics of cobden and bright in the other, appeared as different manifestations of a paltry and narrow indifference to all the great historic aims of the national life. now, and to some degree always, he strongly sympathised with the patriotism represented by macaulay. i need only notice at present certain theological implications. the positivists were beginning to make themselves known, and, for various reasons, were anything but attractive to him. he denounces a manifesto from mr. congreve in january , and again from the patriotic side. mr. congreve had suggested, among other things, the cession of gibraltar to spain, in accordance with his view of international duties. the english nation, exclaims fitzjames, 'cannot be weighed and measured, and ticketed, and classified, by a narrow understanding and a cold heart.' the 'honest and noble passions of a single nation would blow all mr. congreve's schemes to atoms like so many cobwebs. england will never be argued out of gibraltar except by the _ultima ratio_.' these doctrines, he thinks, are the fruits of abandoning a belief in theology. 'we, too, have a positive philosophy, and its fundamental maxim is that it is wise for men and nations to mind their own business, and do their own duty, and leave the results to god.' the argument seems to be rather questionable; and perhaps one which follows is not altogether satisfactory, though both are characteristic. the indian mutiny had moved him deeply, and, in an article called 'deus ultionum'[ ] he applies one of his doctrines to this case. he holds that a desire for revenge upon the perpetrators of the atrocities (of which, i may observe, exaggerated accounts were then accepted) was perfectly legitimate. revenge, he urges, is an essential part of the true theory of punishment--a position which he defends by the authority of bishop butler. the only alternative is the theory of simple 'deterrence,' which, as he holds, excludes every moral element of punishment, and supposes man to be a mere 'bag of appetites.' i have dwelt upon these utterances, not, of course, to consider their value, or as representing his permanent conviction, but simply as illustrating a very deeply rooted sentiment. his work in the 'saturday review' did not exhaust all his literary activity. between and he contributed a few articles to the 'edinburgh review,' of which i have already mentioned one. he very naturally turned to the organ in which his father's best-known writings had appeared, and which still enjoyed a high reputation. i believe that the 'edinburgh review' still acted upon the precedent set by jeffrey, according to which a contributor, especially, of course, a young contributor, was regarded as supplying raw material which might be rather arbitrarily altered by the editor. i express no opinion as to the wisdom of that course; but i think that, as a matter of fact, it alienated this contributor in particular. meanwhile, the father in whose steps he was treading was constantly giving him advice or taking counsel with him during these years. he praised warmly, but with discrimination. the first article in the 'edinburgh review' was upon cavallier, the leader of the protestant revolt in the cevennes. the subject, suggested, i fancy, by a trip to the country taken in , was selected less with a view to his own knowledge or aptitudes than by the natural impulse of a young writer to follow the models accepted in his organ. he had selected a picturesque bit of history, capable of treatment after the manner of macaulay. 'i have read it,' says my father, in words meant to be read to fitzjames, 'with the pleasure which it always gives me to read his vigorous sense, clear and manly style, right-minded and substantially kind-hearted writings. my respect for his understanding has been for a long time steadily increasing, and is very unlikely to be ever diminished.... but i shall best prove that respect by saying plainly that i do not like this paper as well as those in which he writes argumentatively, speculatively, and from the resources of his own mind. his power consists in reasoning, in the exposition of truth and fallacies. i will not say, for i do not know, that he wants the art of story-telling, but, taking this as a specimen, it seems to me deficient in the great art of linking together a series of facts in such a manner that the connection between them shall be at once perceptible to the most ignorant and inattentive reader, and shall take easy and irresistible possession of the mind. that is macaulay's pre-eminent gift.' he goes on to apply this in detail. it may be useful to point out faults now; though his criticisms upon anything which fitzjames may publish in shall be 'all saccharine.' in a letter of april , , he shows an alarm which was certainly not unnatural. fitzjames has been writing in the 'saturday review,' in 'fraser,' the 'national review,' and elsewhere, besides having on hand a projected law-book. is he not undertaking too much? 'no variety of intemperance is more evidently doomed to work out its own ill-reward than that which is practised by a bookseller's drudge of the higher order.' he appeals to various precedents, such as southey, whose brain gave way under the pressure. editors and publishers soon find out the man who is dependent upon them for support, and 'since the abolition of west india slavery the world has known no more severe servitude than his.' 'can a man of your age,' he asks, 'have the accumulated capital of knowledge necessary to stand such a periodical expenditure?' 'what i have read of your writing seems to me to be singularly unequal. at times it is excellent in style and in conception, and evidently flowing from springs pure, copious, and active, and giving promise of great future eminence. at other times the marks of haste, of exhaustion, and being run out of breath, are perceptible to an eye so sensitive as mine is on this subject. i see no reason why you should not become a great writer and one of the teachers of your country-folk, if you will resolve never to write except from a full mind--which is just as essential to literary success as it is to success in singing never to sing but out of well inflated lungs.' he ends by the practical application of an entreaty to make use of the family purse. the reference to a law-book is explained by a correspondence which is going on at the same period in regard to various literary proposals. my father sketches several plans; he disapproves of a technical treatise, in which he thinks that fitzjames would be at a disadvantage from the inevitable comparison with his uncle, the serjeant; but he advises some kind of legal history, resembling hallam's history inverted. in the proposed book the legal aspect should be in the foreground and the political in the background. he expounds at length a scheme which has not been executed, and which would, i think, be exceedingly valuable. it was suggested by his own lectures on french history, though it must be 'six times longer and sixty times more exact and complete.' it is to be a history of the english administrative system from feudal times downwards, giving an account of the development of the machinery for justice, revenue, ecclesiastical affairs, war, trade, colonies, police, and so forth. each chapter should expound the actual state of things, and trace the historical development of one department, and would involve a variety of parenthetical inquiries, which should be carefully subordinated to the main purpose. various hints are given as to the course of investigation that will be necessary. fitzjames began to work upon this scheme; and his opening chapters fill two or three large manuscript books. the plan was abandoned for one more suitable to his powers. meanwhile, the literary activity which had alarmed his father was not abated, and, indeed, before very long, was increased. iv. education commission and recordership another employment for a time gave him work, outside both of his professional and his literary career, though it remained something of a parenthesis. on june , , a royal commission was appointed to investigate the state of popular education. the duke of newcastle was chairman and the other members were sir j. t. coleridge, w. c. lake (afterwards dean of durham), professor goldwin smith, nassau senior, edward miall, and the rev. william rogers, now rector of st. botolph, bishopsgate.[ ] the duke of newcastle was, as i have said, the patron of the editor of the 'saturday review,' and perhaps had some interest in that adventure as in the 'morning chronicle.' he probably knew of my brother through this connection, and he now proposed him, says mr. rogers,[ ] as secretary to the commission. the commission began by sending out assistant-commissioners to the selected districts: it afterwards examined a number of experts in educational matters; it sent mark pattison and matthew arnold to report upon the systems in germany, france, and switzerland; it examined all the previous reports presented to the committee of the privy council; it collected a quantity of information from the various societies, from the managers of government, naval and military schools, from schools for paupers and vagrants, and from reformatories; it made an investigation into the state of the charitable endowments, and it compiled a number of statistical tables setting forth the results obtained. 'the man to whom more than to anyone else the country owed a debt of gratitude,' says mr. rogers, 'was fitzjames stephen.... though under thirty, he brought to the task a combination of talents rarely found in any one individual. to his keen insight, wide grasp, accurately balanced judgment, and marvellous aptitude for details, was due much of the success with which we were able to lay down the future lines of popular education. i have often thought it strange that this recognition has not in time past been more publicly made.' the commission lasted till june , . it published six fat volumes of reports, which are of great value to the historian of education. the progress made in subsequent years gives an appearance of backwardness to what was really a great advance upon previous opinion. the plan of compulsory or free education was summarily dismissed; and a minority of the commission were of opinion that all state aid should be gradually withdrawn. the majority, however, decided that the system rather required development, although the aim was rather to stimulate voluntary effort than to substitute a state system. they thought that the actual number of children at school was not unsatisfactory, and that the desire for education was very widely spread. many of the schools, however, were all but worthless, and the great aim should be to improve their quality and secure a satisfactory teaching of elementary subjects. they proposed that provision should be made for allowing the formation of boards supported by rates in towns and counties; and that the national grant should be distributed on better principles, so as to secure more efficient results. as mr. rogers points out, the 'revised code' soon afterwards issued by mr. lowe, and the principles adopted in mr. forster's act a few years later, carried out, though they greatly extended, the proposals of the commission. it is impossible to say precisely what share my brother had in these results. i find, however, from a correspondence with his old friend nassau senior, that he was an advocate of the view finally adopted by the commission. he also prepared the report, of course under the direction of his superiors, and the labour thrown upon him during the three years of this occupation must have been considerable. he was, however, writing with his old regularity for the 'saturday review,' and was attending sessions and circuits with slowly improving prospects. in a letter written at this time i find him remarking that he is at work all the day and half the night. this is in reference to a case with which he was much occupied during - , and which is characteristic enough to deserve a few words. his articles in the 'saturday review' show the keen interest to which he was aroused by any touch of heroism. he is enthusiastic about arctic adventure, and a warm review of kane's narrative of the american expedition in search of franklin brought him the friendship of the author, who died during a visit to england soon afterwards. another arctic explorer was captain parker snow, who sailed in the search expedition sent out by lady franklin in . the place in which the remains were afterwards discovered had been revealed to him in a dream; and but for the refusal of his superior officer to proceed he would have reached the spot. in the year captain snow was sent out by the patagonian missionary society to the place where the unfortunate allen gardiner had been starved to death. his crew consisted entirely of 'godly' sailors, who, he says, showed their principles by finding religious reasons for disobeying his orders. finally captain snow was dismissed by an agent of the society, and, as he maintained, illegally. he published an account of his explorations in tierra del fuego, which fitzjames reviewed enthusiastically. it was long, he said, since he had seen a 'heartier, more genuine, nobler book'; he was tempted to think that captain marryat and kingsley had 'put their heads together to produce a sort of missionary "peter simple."' this led to a long correspondence with captain snow, who was trying to enforce his claims against the missionary society. fitzjames strongly advised him against legal proceedings, which would, he thought, be fruitless, although captain snow had a strong moral claim upon the society. captain snow, however, was not easy to advise, and fitzjames, thinking him ill-treated, obtained help from several friends and subscribed himself to the captain's support. after long negotiations the case finally came into court in december , when fitzjames consented to appear as the captain's counsel, although he had foreseen the unsuccessful result. he continued to do what he could for the sufferer, to whose honourable, though injudicious conduct he bears a strong testimony, and long afterwards ( ) obtained for him a pension of _l._ from the civil list, which is, i fear, captain snow's only support in his old age.[ ] in august fitzjames was made recorder of newark. the place, which he held till he went to india in , was worth only _l._ a year; but was, as he said, a 'feather in his cap,' and a proof of his having gained a certain footing upon his circuit. it gave him his first experience as a judge, and i may mention a little incident of one of his earliest appearances in that character. he had to sentence a criminal to penal servitude, when the man's wife began to scream; he was touched by her grief, and left a small sum with the mayor to be given to her without mention of his name. the place was, it seems, practically the gift of the duke of newcastle; and bethell, then attorney-general, wrote to him in favour of fitzjames's appointment. i am not aware how bethell came to have any knowledge of him; but fitzjames had formed a very high opinion of the great lawyer's merits. he showed it when bethell, then lord westbury, was accused of misconduct as lord chancellor. he thought that the accusations, if not entirely unfounded, were grossly exaggerated for party purposes. he could not persuade the 'pall mall gazette,' for which he was then writing, to take this view; but upon westbury's resignation he obtained the insertion of a very cordial eulogy upon the ex-chancellor's merits as a law reformer. the appointment to the recordership was one of the last pieces of intelligence to give pleasure to my father. fitzjames had seen much of him during the last year. he had spent some weeks with him at dorking in the summer of , and had taken a little expedition with him in the spring of . my father injured himself by a walk on his seventieth birthday (january , ), and his health afterwards showed symptoms of decline. in the autumn he was advised to go to homburg; and thence, on august , he wrote his last letter, criticising a draft of a report which fitzjames was preparing for the education commission, and suggesting a few sentences which would, he thinks, give greater clearness and emphasis to the main points. immediately afterwards serious symptoms appeared, due, i believe, to the old break-down of . my father was anxious to return, and started homewards with my mother and sister, who had accompanied him. they got as far as coblenz, where they were joined by fitzjames, who had set out upon hearing the news. he was just in time to see his father alive. sir james stephen died september , , an hour or two after his son's arrival. he was buried at kensal green, where his tombstone bears the inscription: 'be strong and of a good courage; be not afraid, neither be thou dismayed: for the lord thy god is with thee whithersoever thou goest.' the words (from joshua i. ) were chosen because a friend remembered the emphasis with which my father had once dwelt upon them at his family prayers. with the opening words of the same passage my brother concluded the book which expressed his strongest convictions,[ ] and summed up his practical doctrine of life. what he felt at the time may be inferred from a striking essay upon the 'wealth of nature,' which he contributed to the 'saturday review' of september , .[ ] it may be considered as a sermon upon the text of gray's reflections in the 'elegy' upon the 'hearts once pregnant with celestial fire' which lie forgotten in the country churchyard. what a vast work has been done by the unknown! what must have been the aggregate ability of those who, in less than thirty generations, have changed the england of king alfred into the england of queen victoria! and yet how few are remembered! how many actions even, which would be gladly remembered, are constantly forgotten? 'the indian empire,' he says characteristically, 'is the most marvellous proof of this that the world can supply. a man died not long ago who, at twenty-five years of age, with no previous training, was set to govern a kingdom with absolute power, and who did govern it so wisely and firmly that he literally changed a wilderness into a fruitful land. probably no one who reads these lines will guess to whom they allude.' i can, however, say that they allude to james grant duff ( - ), author of the 'history of the mahrattas,' and father of his friend sir mountstuart. fitzjames had visited the father in scotland, and greatly admired him. his early career as resident of sattara sufficiently corresponds to this statement. it is well, as fitzjames maintained, that things should be as they are. fame generally injures a man's simplicity; and this 'great reserve fund of ability' acts beneficially upon society at large, and upon the few conspicuous men who are conscious of their debt to their unknown colleagues. it would be a misfortune, therefore, if society affected to class people according to their merits; for, as it is, no one need be ashamed of an obscurity which proves nothing against him. we have the satisfaction of perceiving everywhere traces of skill and power, proving irrefragably that there are among us men 'who ennoble nearly every walk of life, and would have ennobled any.' a similar tone appears in the short life of his father, written in the following year. true success in life, he says, is not measured by general reputation. sir james stephen's family will be satisfied by establishing the fact that he did his duty. it was an instance of 'prosperity' that his obscurity 'protected him, and will no doubt effectually protect his memory against unjust censure and ignorant praise.' the deaths of two old friends of his father's and his own marked the end of the year. on december , , he hears of the death of john austin, and proposes to attend the funeral, 'as there were few men for whom i had more respect or who deserved it more.' his admiration for austin was at this time at its warmest.[ ] macaulay died on december , ; and on january , , fitzjames writes from derby, where he has been all night composing a 'laudation' of the historian for the 'saturday review.'[ ] it is . a.m., and he has just washed and dressed, as it is too late to go to bed before court. 'tom macaulay,' as has been seen, had been a model held up to him from infancy, and to the last retained a strong hold upon his affectionate remembrance. fitzjames was now completing his thirty-first year, and was emerging into a more independent position. he was in the full flow of energetic and various work, which was to continue with hardly an intermission until strength began to fail. at this period he was employed in the education commission, which for some time was meeting every day; he was writing for the 'saturday review' and elsewhere; he was also beginning to write an independent book; and he was attending his circuit and sessions regularly and gradually improving his position.[ ] the story thus becomes rather complicated. i will first say a little of his professional work during the next few years, and i will then mention three books, which appeared from to , and were his first independent publications; they will suggest what has to be said of his main lines of thought and work. v. progress at the bar his practice at the bar was improving, though not very steadily or rapidly. 'those cases, like snow's or bacon's,' he observes (dec. , ), 'do me hardly any good.... i am making a reputation which would be very useful for an older man who already had business, but is to me glory, not gain. i am like a man who has good expectations and little or no income.' still his position is better: he has made _l._ this year against _l._ the year before; he is beginning to 'take root,' especially at sessions; and he 'thoroughly delights in his profession.' in march he reports some high compliments from mr. justice willes in consequence of a good speech; and has had inquiries made about him by attornies. but the attornies, he thinks, will have forgotten him before next circuit. there never was a longer hill than that which barristers have to climb; but 'it is neither a steep nor an unpleasant hill.' in july he was appointed to a revising barristership in north derbyshire by chief baron pollock, and was presented with a red bag by his friend kenneth macaulay, now leader of the circuit. he makes _l._ on circuit, and remarks that this is considered to mark a kind of turning-point. in things improve again. in july he is employed in three cases of which two were 'glorious triumphs,' and the third, the 'great grimsby riot,' which is 'at present a desperate battle,' is the biggest case he has yet had on circuit. the circuit turns out to be his most profitable, so far. on october he reports that he has got pretty well 'to the top of the little hill' of sessions, and is beginning, though cautiously, to think of giving them up and to look forward to a silk gown. in he has 'a wonderful circuit' (march ) above _l._, owing partly, it would seem, to macaulay's absence, and too good to be repeated. in the summer, however, he has the first circuit in which there has been no improvement. on october he is for once out of spirits. he has had 'miserable luck,' though he thinks in his conscience that it has been due not to his own fault, but to the 'stupidity of juries.' 'there is only one thing,' he says, 'which supports me in this, the belief that god orders all things, and that therefore we can be content and ought to take events as they come, be they small or great. whenever i turn my thoughts that way it certainly does not seem to me very important whether in this little bit of a life i can accomplish all that i wish--so long as i try to do my best. i have often thought that perhaps one's life may be but a sort of school, in which one learns lessons for a better and larger world, and if so, i can quite understand that the best boys do not get the highest prizes, and that no boy, good or bad, ought to be unhappy about his prizes. there are things i long to do; books i long to write; thoughts and schemes that float before me, looking so near and clear, and yet being, as i feel, so indistinct or distant that i shall never make anything of them. small ties and little rushings of the mind, briefs and magazine articles, and their like, will clog my wheels day after day and year after year. yet i cannot altogether blame myself. looking back on my life, i cannot seriously regret any of the principal steps i have taken in it. still i do feel more or less disquieted or perturbed--i cannot help it.' some uncomfortable thoughts could hardly fail to intrude at times when the compliments which he received from the highest authorities failed to be backed by a corresponding recognition from attornies; and at times, i suspect, his spirits were depressed by over-work, of which he was slow to acknowledge the possibility. to work, indeed, he turned for one chief consolation. he refers incidentally to various significant performances. 'last night,' he writes from derby, april , , 'i finished a middle at two; and to-day i finished "superstition"' (an article in the 'cornhill') 'in a six hours' sitting, during which i had written thirty-two ms. pages straight off. i don't feel at all the worse for it.' on nov. following he observes that he is 'in first-rate health.' he wrote all night from six till three, got up at . , and walked thirty-one miles; after which he felt 'perfectly fresh and well.' on jan. , , he has a long drive in steady rain, sits up 'laughing and talking' till one; writes a review till . , and next day writes another article in court. on july , , he finishes an article upon newman at a.m., having written as much as would fill sixteen pages of the 'edinburgh review'--the longest day's work he had ever done, and feels perfectly well. on march , , he gets up at six, writes an article before breakfast, is in court all day, and has a consultation at nine. early rising was, i think, his commonest plan for encountering a pressure of work; but he had an extraordinary facility for setting to work at a moment's notice. he had a power of eating and sleeping at any time, which he found, as he says, highly convenient. he was equally ready to write before breakfast, or while other people were talking and speechifying all round him in court, or when sitting up all night. and, like a strong man, he rejoiced in his strength, perhaps a little too unreservedly. if he now and then confesses to weariness, it never seemed to be more than a temporary feeling. of the cases in which he was engaged at this period i need only mention two--the case of dr. rowland williams, of which i shall speak directly in connection with his published 'defence'; and the case of a man who was convicted of murder at warwick in december . the fellow had cut the throat of a girl who had jilted him. the facts were indisputable, and the only possible defence was insanity. kenneth macaulay and fitzjames were counsel for the defence, but failed, and, as fitzjames thought, rightly failed, to make good their case. he was, however, deeply moved by the whole affair--the most dramatic, he says, in which he had been engaged. the convict's family were respectable people, and behaved admirably. 'the poor mother sat by me in court and said, "i feel as if i could cling to anyone who could help him," and she put her hand on my arm and held it so that i could feel every beat of her pulse. her fingers clutched me every time her heart beat. the daughters, too, were dreadfully moved, but behaved with the greatest natural dignity and calmness.' after the conviction fitzjames felt that the man deserved to be hanged; but felt also bound to help the father in his attempts to get the sentence commuted. he could not himself petition, but he did his best to advise the unfortunate parents. he used to relate that the murderer had written an account of the crime, which it was proposed to produce as a proof of insanity. to fitzjames it seemed to be a proof only of cold-blooded malignity which would insure the execution of the sentence. he was tormented by the conflict between his compassion and his sense of justice. ultimately the murderer was reprieved on the ground that he had gone mad after the sentence. fitzjames had then, he says, an uncomfortable feeling as if he were partly responsible for the blood of the murdered girl. the criminal soon afterwards committed suicide, and so finished the affair. vi. 'essays by a barrister' i turn now to the literary work which filled every available interstice of time. in the summer of fitzjames published 'essays by a barrister' (reprinted from the 'saturday review'). the essays had appeared in that paper between the end of and the beginning of . from february , , to february , , he did not write in the 'saturday review.' a secession had taken place, the causes of which i do not precisely know. i believe that the editor wished to put restrictions, which some of his contributors, including fitzjames, resented, upon the services to be rendered by them to other periodicals. the breach was eventually closed without leaving any ill-feeling behind it. fitzjames at first felt the relief of not having to write, and resolved to devote himself more exclusively to his profession. but before long he was as hard at work as ever. during he wrote a good many articles for the 'london review,' which was started as a rival of the 'saturday review.' he found a more permanent outlet for his literary energies in the 'cornhill magazine.' it was started by messrs. smith & elder at the beginning of with thackeray for editor; and, together with 'macmillan's magazine'--its senior by a month--marked a new development of periodical literature. fitzjames contributed a couple of articles at the end of ; and during , , and , wrote eight or nine in a year. these articles (which were never reprinted) continue the vein opened in the 'essays by a barrister.' his connection with the 'magazine' led to very friendly relations with thackeray, to whose daughters he afterwards came to hold the relation of an affectionate brother. it also led to a connection with mr. george smith, of smith, elder & co., which was to be soon of much importance. the articles represented the development of the 'middles,' which he considered to be the speciality of himself and his friend sandars. the middle, originally an article upon some not strictly political topic, had grown in their hands into a kind of lay sermon. for such literature the british public has shown a considerable avidity ever since the days of addison. in spite of occasional disavowals, it really loves a sermon, and is glad to hear preachers who are not bound by the proprieties of the religious pulpit. some essayists, like johnson, have been as solemn as the true clerical performer, and some have diverged into the humorous with charles lamb, or the cynical with hazlitt. at this period the most popular of the lay preachers was probably sir arthur helps, who provided the kind of material--genuine thought set forth with real literary skill and combined with much popular sentiment--which served to convince his readers that they were intelligent and amiable people. the 'saturday reviewers,' in their quality of 'cynics,' could not go so far in the direction of the popular taste; and their bent was rather to expose than to endorse some of the commonplaces which are dear to the intelligent reader. probably it was a sense of this peculiarity which made fitzjames remark when his book appeared that he would bet that it would never reach a second edition. he would, i am sorry to say, have won his bet; and yet i know that the 'essays by a barrister,' though never widely circulated, have been highly valued by a small circle of readers. the explanation of their fate is not, i think, hard to give. they have, i think, really great merits. they contain more real thought than most books of the kind; they are often very forcibly expressed; and they unmistakably reflect very genuine and very strong convictions. unluckily, they maintain just the kind of views which the congregation most easily gathered round such a pulpit is very much inclined to regard with suspicion or with actual dislike. an essay, for example, upon 'doing good' is in fact a recast of the paper which decided his choice of a profession. it is intended to show that philanthropists of the exeter hall variety are apt to claim a monopoly of 'doing good' which does not belong to them, and are inclined to be conceited in consequence. the ordinary pursuits are equally necessary and useful. the stockbroker and the publican are doing good in the sense of being 'useful' as much as the most zealous 'clergyman or sister of mercy.' medicine does good, but the butcher and the baker are still more necessary than the doctor. we could get on without schools or hospitals, but not without the loom and the plough. the philanthropist, therefore, must not despise the man who does a duty even more essential than those generally called benevolent, though making less demand on the 'kindly and gentle parts of our nature.' a man should choose his post according to his character. it is not a duty to have warm feelings, though it may be a misfortune not to have them; and a 'cold, stern man' who should try to warm up his feelings would either be cruelly mortified or become an intolerable hypocrite. it is a gross injustice to such a man, who does his duty in the station fittest to his powers, when he is called by implication selfish and indifferent to the public good. 'the injustice, however, is one which does little harm to those who suffer under it, for they are a thick-skinned and long-enduring generation, whose comfort is not much affected one way or the other by the opinion of others.' this, like fitzjames's other bits of self-portraiture, is not to be accepted too literally. so taken, it confounds, i think, coldness and harshness with a very different quality, a want of quick and versatile sympathy, and 'thickness of skin' with the pride which would not admit, even to itself, any tendency to over-sensibility. but it represents more or less the tone which came naturally to him, and explains the want of corresponding acceptability to his readers. he denounces the quality for which 'geniality' had become the accepted nickname. the geniality, whether of dickens or kingsley, was often, he thought, disgusting and offensive. it gives a false view of life. 'enjoyment forms a small and unimportant element in the life of most men.' life, he thinks, is 'satisfactory' but 'enjoyment casual and transitory.' 'geniality,' therefore, should be only an occasional element; habitually indulged and artificially introduced, it becomes as nauseous as sweetmeats mixed with bread and cheese. to the more serious person, much of the popular literature of the day suggests solomon's words: 'i said of laughter, it is mad; and of mirth what doeth it?' so the talk of progress seems to him to express the ideal of a moral 'lubberland.' six thousand years of trial and suffering, according to these prophets, are to result in a 'perpetual succession of comfortable shopkeepers.' the supposition is 'so revolting to the moral sense that it would be difficult to reconcile it with any belief at all in a divine providence.' you are beginning, he declares after carlyle's account of robespierre, 'to be a bore with your nineteenth century.' our life, he says elsewhere ('christian optimism'), is like 'standing on a narrow strip of shore, waiting till the tide which has washed away hundreds of millions of our fellows shall wash us away also into a country of which there are no charts and from which there is no return. what little we have reason to believe about that unseen world is that it exists, that it contains extremes of good and evil, awful and mysterious beyond human conception, and that these tremendous possibilities are connected with our conduct here. it is surely wiser and more manly to walk silently by the shore of that silent sea, than to boast with puerile exultation over the little sand castles which we have employed our short leisure in building up. life can never be matter of exultation, nor can the progress of arts and sciences ever fill the heart of a man who has a heart to be filled.' the value of all human labours is that of schoolboys' lessons, 'worth nothing at all except as a task and a discipline.' life and death are greater and older than steam engines and cotton mills. 'why mankind was created at all, why we continue to exist, what has become of all that vast multitude which has passed, with more or less sin and misery, through this mysterious earth, and what will become of those vaster multitudes which are treading and will tread the same wonderful path?--these are the great insoluble problems which ought to be seldom mentioned but never forgotten. strange as it may appear to popular lecturers, they do make it seem rather unimportant whether, on an average, there is a little more or less good nature, a little more or less comfort, and a little more or less knowledge in the world.' such thoughts were indeed often with him, though seldom uttered. the death of a commonplace barrister about this time makes him remark in a letter that the sudden contact with the end of one's journey is not unwelcome. the thought that the man went straight from the george iv. hotel to 'a world of ineffable mysteries is one of the strangest that can be conceived.' i have quoted enough from the essays to indicate the most characteristic vein of thought. they might have been more popular had he either sympathised more fully with popular sentiment or given fuller and more frequent expression to his antipathy. but, it is only at times that he cares to lay bare his strongest convictions; and the ordinary reader finds himself in company with a stern, proud man who obviously thinks him foolish but scarcely worth denouncing for his folly. sturdy common sense combined with a proud reserve which only yields at rare intervals, and then, as it were, under protest, to the expression of deeper feeling, does not give the popular tone. some of the 'cornhill' articles were well received, especially the first, upon 'luxury' (september ), which is not, as such a title would now suggest, concerned with socialism, but is another variation upon the theme of the pettiness of modern ideals and the effeminate idolatry of the comfortable. these articles deal with many other topics: with the legal questions in which he is always interested, such as 'the morality of advocacy' and with the theory of evidence, with various popular commonplaces about moral and social problems, with the 'spirit-rapping' then popular, with various speculations about history, and with some of the books in which he was always interested. one is the 'laudation' of macaulay which i have noticed, and he criticises carlyle and speaks with warm respect of hallam. here and there, too, are certain philosophical speculations, of which i need only say that they show his thorough adherence to the principles of mill's 'logic' he is always on the look-out for the 'intuitionist' or the believer in 'innate ideas,' the bugbears of the mill school. in an article upon mansel's 'metaphysics' he endeavours to show that even the 'necessary truths' of mathematics are mere statements of uniform experience, which may differ in another world. this argument was adopted by mill in his 'examination of sir w. hamilton's philosophy.'[ ] i cannot say that i think it a fortunate suggestion; and i only notice it as an indication of fitzjames's intellectual position. the 'cornhill' articles had to be written under the moral code proper to a popular magazine, the first commandment of which is 'thou shalt not shock a young lady.' fitzjames felt this rather uncomfortably, and he was not altogether displeased, as he clearly had no right to be surprised, when mr. george smith, the proprietor of the magazine, suggested to him in december the superior merits of 'light and amusing' articles, which, says fitzjames, are 'just those which give me most trouble and teach me least.' they are 'wretched' things to occupy a man of 'any sort of mind.' mr. smith, as he says a year afterwards, is the 'kindest and most liberal of masters,' but he feels the drudgery of such work. reading bossuet (february , ), he observes that the works are so 'powerful and magnificent in their way' that they make me feel a sort of hatred for 'the trumpery that i pass my time in manufacturing.' it makes him 'sad to read great books, and it is almost equally sad not to read them.' he feels 'tied by the leg' and longs to write something worth writing; he believes that he might do more by a better economy of his time; but 'it is hopeless to try to write eight hours a day.' he feels, too (july , ), that the great bulk of a barrister's work is 'poor stuff.' it is a 'good vigorous trade' which braces 'the moral and intellectual muscles' but he wishes for more. no doubt he was tired, for he records for once enjoying a day of thorough idleness a month later, lying on the grass at a cricket match, and talking of prize-fighting. he is much impressed soon afterwards by a sermon on the text, 'i will give you rest'; but his spirits are rapidly reviving. in march be says, 'i cannot tell you how happy and prosperous i feel on the whole.... i have never felt so well occupied and so thoroughly fearless and happy on circuit before.' this was partly due to improvement in other respects. circuits were improving. he had given up the 'cornhill,' and was finding an outlet in 'fraser' for much that had been filling his mind. other prospects were opening of which i shall soon have to speak. vii. defence of dr. williams i go back to another book which was closely connected with his professional prospects and his intellectual interests. his 'defence of dr. rowland williams' appeared in the spring of , and represented some very energetic and to him intensely interesting work. certain clergymen of the church of england had discovered--what had been known to other people for several generations--that there were mistakes in the bible. they inferred that it was desirable to open their minds to free criticism, and that the bible, as jowett said, should be read 'like any other book.' the result was the publication in of 'essays and reviews,' which after a time created a turmoil which seems a little astonishing to the present generation. orthodox divines have, indeed, adopted many of the conclusions which startled their predecessors, though it remains to be seen what will be the results of the new wine in the old bottles. the orthodoxy of , at any rate, was scandalised, and tried, as usual, to expel the obnoxious element from the church. the trial of dr. rowland williams in the arches court of canterbury in december was one result of the agitation, and fitzjames appeared as his counsel. he had long been familiar with the writings of the school which was being assailed. in he is reading jowett's 'commentary on the epistle to the romans,' and calls it a 'kind, gentle christian book'--far more orthodox than he can himself pretend to be. characteristically he is puzzled and made 'unhappy' by finding that a good and honest man claims and 'actually seems to possess a knowledge of the relations between god and man,' on the strength of certain sensibilities which place a gulf between him and his neighbours. he probably met jowett in some of his visits to henry smith at oxford. at the end of and afterwards he speaks of meetings with jowett and stanley, for both of whom he expresses a very warm regard. during the latter part of he was hard at work upon the preparation of his speech on behalf of dr. williams, which was published soon after the trial. without dwelling at any length upon the particular points involved, i may say that the main issue was very simple. the principal charge against dr. williams was that he had denied the inspiration of the bible in the sense in which 'inspiration' was understood by his prosecutors. he had in particular denied that jonah and daniel were the authors of the books which pass under their names, and he had disputed the canonicity of the epistle to the hebrews. fitzjames lays down as his first principle that the question is purely legal; that is, that it is a question, not whether dr. williams's doctrines were true, but whether they were such as were forbidden by law to be uttered by a clergyman. secondly, the law was to be found in the thirty-nine articles, the rubrics, and formularies, not, as the prosecutors alleged, in passages from scripture read in the services--a proposition which would introduce the whole problem of truth or error. thirdly, he urged, the articles had designedly left it open to clergymen to hold that the bible 'contains' but does not 'constitute' the revelation which must no doubt be regarded as divine. in this respect the articles are contrasted with the westminster confession, which affirms explicitly the absolute and ultimate authority of the bible. no one on that assumption may go behind the sacred record; and no question can be raised as to the validity of anything once admitted to form part of the sacred volume. the anglican clergy, on the contrary, are at liberty to apply criticism freely in order to discriminate between that part of the bible which is and that which is not part of divine revelation. finally, a long series of authorities from hooker to bishop hampden is adduced to prove that, in point of fact, our most learned divines had constantly taken advantage of this liberty; and established, so to speak, a right of way to all the results of criticism. of course, as fitzjames points out, the enormous increase of knowledge, critical and scientific, had led to very different results in the later period. but he argues that the principle was identical, and that it was therefore impossible to draw any line which should condemn dr. williams for rejecting whole books, or denying the existence of almost any genuine predictions in the hebrew prophecies without condemning the more trifling concessions of the same kind made by hooker or chillingworth. if i may remove one stone from the building, am i not at liberty to remove any stone which proves to be superfluous? the argument, though forcible and learned, was not in the first instance quite successful. dr. williams was convicted upon two counts; though he afterwards ( ) succeeded in obtaining an acquittal upon them also on an appeal to the committee of the privy council. lord westbury gave judgment, and, as was said, deprived the clergy of the church of england of their 'last hopes of eternal damnation.' on the last occasion dr. williams defended himself. the case increased fitzjames's general reputation and led to his being consulted in some similar cases, though it brought little immediate result in the shape of briefs. for my purpose the most important result is the indication afforded of his own religious position. he argues the question as a matter of law; but not in the sense of reducing it to a set of legal quibbles or technical subtleties. the prosecutors have appealed to the law, and to the law they must go; but the law secures to his client the liberty of uttering his conscientious convictions. dr. williams, he says, 'would rather lose his living as an honest man than retain it by sneaking out of his opinions like a knave and a liar.'[ ] he will therefore take a bold course and lay down broad principles. he will not find subterfuges and loopholes of escape; but admit at once that his client has said things startling to the ignorant, but that he has said them because he had a right to say them. the main right is briefly the right to criticise the bible freely. fitzjames admits that he has to run the risk of apparently disparaging that 'most holy volume, which from his earliest infancy he has been taught to revere as the choicest gift of god to man, as the guide of his conduct here, the foundation of his hopes hereafter.'[ ] he declares that the articles were framed with the confidence which has been 'justified by the experience of three centuries,' and will, he hopes, be justified 'so long as it pleases god to continue the existence of the human race,' that the scripture stands upon a foundation irremovable by any efforts of criticism or interpretation.[ ] the principle which he defends, (that the bible contains, but does not constitute revelation) is that upon which the divines of the eighteenth century based their 'triumphant defence of christianity against the deists' of the period. i am certain that fitzjames, though speaking as an advocate, was also uttering his own convictions in these words which at a later period he would have been quite unable to adopt. i happened at the time to have a personal interest in the subject, and i remember putting to him a question to this effect: your legal argument may be triumphant; but how about the moral argument? a clergyman may have a right to express certain opinions; but can you hold that a clergyman who holds those opinions, and holds also what they necessarily imply, can continue, as an honest man, to discharge his functions? as often happens, i remember my share in our talk much more clearly than i remember his; but he was, i know, startled, and, as i fancied, had scarcely contemplated the very obvious application of his principles. i have now seen, however, a very full and confidential answer given about the same time to a friend who had consulted him upon the same topic. as i have always found, his most confidential utterances are identical in substance with all that he said publicly, although they go into more personal applications.[ ] the main purpose of this paper is to convince a lady that she may rightfully believe in the doctrines of the church of england, although she does not feel herself able to go into the various metaphysical and critical problems involved. the argument shows the way in which his religious beliefs were combined with his benthamism. he proves, for example, that we should believe the truth by the argument that true belief is 'useful.' conversely the utility of a belief is a presumption that it contains much truth. hence the prolonged existence of a church and its admitted utility afford a presumption that its doctrines are true as the success of a political constitution is a reason for believing the theory upon which it is built. this is enough to justify the unlearned for accepting the creed of the church to which they belong, just as they have to accept the opinions of a lawyer or of a physician in matters of health and business. they must not, indeed, accept what shocks their consciences, nor allow 'an intelligible absurdity' to be passed off as a 'sacred mystery.' the popular doctrines of hell and of the atonement come under this head; but he still refers to coleridge for an account of such doctrines, which appears to him 'quite satisfactory.' the church of england, however, lays so little stress upon points of dogmatic theology that its yoke will be tolerable. combined with this argument is a very strong profession of his own belief. the belief in a moral governor of the universe seems to him as ennobling as all other beliefs 'put together,' and 'more precious.' although the difficulty suggested by the prevalence of evil is 'inimical to all levity,' yet he thinks that it would be 'unreasonable and degrading' not to hold the doctrine itself. and, finally, he declares that he accepts two doctrines of 'unspeakable importance.' he prays frequently, and at times fervently, though not for specific objects, and believes that his prayers are answered. and further, he is convinced of a 'superintending providence' which has throughout affected his life. no argument that he has ever read or heard has weighed with him a quarter as much as his own personal experience in this matter. the paper, written with the most evident sincerity, speaks so strongly of beliefs which he rarely avowed in public that i feel it almost wrong to draw aside his habitual veil of reticence. i do so, though briefly, because some of his friends who remember his early orthodoxy were surprised by the contrast of what they call his aggressive unbelief in later life. it is therefore necessary to show that at this period he had some strong positive convictions, which indeed, though changed in later years, continued to influence his mind. he was also persuaded that the church of england, guarded by the decisions of lawyers, could be kept sufficiently open to admit the gradual infusion of rational belief. i must further remark that his belief, whatever may be thought of it, represented so powerful a sentiment that i must dwell for a little upon its general characteristics. for this reason i will speak here of the series of articles in 'fraser' to which i have already referred. during the next few years, to , he wrote several, especially in - , which he apparently intended to collect. the most significant of these is an article upon newman's 'apologia,' which appeared in september . fitzjames had some personal acquaintance with newman. he had been taken to the oratory, i believe by his friend grant duff; and had of course been impressed by newman's personal charm. fitzjames, however, was not the man to be awed by any reputation into reticence. he had a right to ask for a serious answer to serious questions. newman represented claims which he absolutely rejected, but which he desired fully to understand. he had on one occasion a conversation which he frequently mentioned in later years. the substance, as i gather from one of his letters, was to this effect: 'you say,' said fitzjames, 'that it is my duty to treat you and your church as the agents and mouthpiece of almighty god?' 'yes.' 'then give me anything like a reasonable ground for believing that you are what you claim to be.' newman appears to have replied in substance that he could not argue with a man who differed so completely upon first principles. fitzjames took this as practically amounting to the admission that newman had 'nothing to say to anyone who did not go three-fourths of the way to meet him.' 'i said at last,' he proceeds, '"if jesus christ were here, could he say no more than you do?" "i suppose you to mean that if he could, i ought to be able to give you what you ask?" "certainly, for you profess to be his authorised agent, and call upon me to believe you on that ground. prove it!" all he could say was, "i cannot work miracles," to which i replied, "i did not ask for miracles but for proofs." he had absolutely nothing to say.' i need hardly say that newman's report of the conversation would probably have differed from this, which gives a rough summary from fitzjames's later recollections. i do not hesitate, however, to express my own belief that it gives a substantially accurate account; and that the reason why newman had nothing to say is simply that there was nothing to be said. persons who suppose that a man of newman's genius in stating an argument must have been a great logician, and who further imagine that a great logician shows his power by a capacity of deducing any conclusions from any premises, will of course deny that statement. to argue the general question involved would be irrelevant. what i am concerned to point out is simply the inapplicability of newman's argument to one in fitzjames's state of mind. the result will, i think, show very clearly what was his real position both now and in later years. his essay on the 'apologia' insists in the first place upon a characteristic of newman's writings, which has been frequently pointed out by others; that is, that they are essentially sceptical. the author reaches orthodox conclusions by arguments which are really fatal to them. the legitimate inference from an argument does not depend upon the intention of the arguer; and the true tendency of newman's reasonings appears simply by translating them into impartial language. fitzjames dwells especially upon newman's treatment of the fundamental doctrine of the existence of a god. newman, for example, defends a belief in transubstantiation by dwelling upon the antinomies involved in the argument for a deity. as, in one case, we cannot give any meaning to an existence without a beginning, so, in the other, we can attach no meaning to the word 'substance.' if the analogy be correct, the true inference would be that both doctrines are meaningless aggregations of words, and therefore not capable of being in any true sense either 'believed' or 'disbelieved.' so again the view of the external world suggests to newman 'atheism, pantheism, or polytheism.' almighty benevolence has created a world of intelligent beings, most of whom are doomed to eternal tortures, and having become incarnate in order to save us, has altogether failed in his purpose. the inference is, says fitzjames, that 'if dr. newman was thoroughly honest he would become an atheist.' the existence of evil is, in fact, an argument against the goodness of god; though it may be, as fitzjames thinks it is in fact, overbalanced by other evidence. but if it be true that god has created an immense proportion of men to be eternally tormented in hell fire, it is nonsense to call him benevolent, and the explanation by a supposed 'catastrophe' is a mere evasion. in spite of this, newman professes himself, and of course in all sincerity, as much convinced of the existence of god as he is of his own existence. the 'objections,' as he puts it, are only 'difficulties'; they make it hard to understand the theory, but are no more reasons for rejecting it than would be the difficulty which a non-mathematical mind finds in understanding the differential calculus for rejecting 'taylor's theorem.' and, so far, the difference is rather in the process than the conclusion. newman believes in god on the testimony of an inner voice, so conclusive and imperative that he can dismiss all apparently contradictory facts, and even afford, for controversial purposes, to exaggerate them. fitzjames, as a sound believer in mill's logic, makes the facts the base of his whole argumentative structure, though he thinks that the evidence for a benevolent deity is much stronger than the evidence against it. when we come to the narrower question of the truth of christianity the difference is vital. newman's course had, in fact, been decided by a belief, however generated, in the 'principle of dogma,' and on the other hand by the gradual discovery of the unsatisfactory nature of the old-fashioned protestant argument as interpreted by paley and the evidence writers. for that argument, as has been seen, fitzjames had still a considerable respect. but no one had insisted more energetically upon its practical insufficiency, at any rate, than newman. he had declared man's reason to be so corrupt, that one who becomes a protestant is on a slope which will inevitably lead through socinianism to atheism. to prove his claims, therefore, to a protestant by appealing to such grounds as the testimony of the gospels, was obviously impossible. that evidence, taken by itself, especially as a sound utilitarian lawyer would take it, was, on his own showing, practically insufficient to prove the truth of the alleged facts, and, much more, to base upon them the claim of the infallible church. it is precisely the insufficiency of this view that gives force to the demand for a supernatural authority. how, then, was newman to answer an inquirer? obviously, on his own ground, he must appeal to the _à priori_ arguments afforded by the instinctive desire of men for an authoritative body, and to the satisfaction of their conscience by the dogmas revealed through its agency. then the question occurs: is this a logical argument, or an appeal from argument to feeling? is it not, as fitzjames thinks, a roundabout way of saying, 'i believe in this system because it suits my tastes and feelings, and because i consider truth unattainable'? if so, persuasion is substituted for reasoning: and the force of persuasion depends upon the constitution of the person to be persuaded. now the arguments, if they be called arguments, which newman could address to fitzjames upon this topic were obviously inapplicable. the dogmas, says newman, are congenial to the conscience. the conscience demands an avenging deity, and therefore a doctrine of sacrifice. but such an appeal fails if, in point of fact, a man's conscience rises against the dogma. this was fitzjames's position. 'large parts of the (catholic) theology,' he says in a letter, 'are not only silly, but, i think, cruel and immoral to the last degree. i think the doctrine of eternal damnation so wicked and so cruel that i would as soon teach my children to lie and steal as to believe in it.' this was to express one of his strongest convictions. in a review of theodore parker's works,[ ] written shortly before, he had to deal with an advocate of that 'intuitional' theory which he always repudiated. but parker at least appealed to reason, and had, by a different path, reached moral conclusions with fitzjames thoroughly agreed. doctrines, says fitzjames, which _prima facie_ conflict with our belief in a benevolent creator, such as the theory of vicarious suffering, are not indeed capable of being refuted by parker's summary method; but he fully agrees that they could only be established by very strong evidence, which he obviously does not believe to exist. to appeal, then, to the conscience on behalf of the very doctrine which has been destroyed by the revolt of our moral feelings is obviously impossible. newman, when he notices that the modern world rejects the sacrifice theory, explains it by saying that the conscience of the modern world has decayed. but it is a mere playing fast and loose with logic when you deny the authority of the court to which you appeal as soon as it decides against you. to fitzjames, at any rate, who regarded these doctrines as radically immoral, the argument could have no application. finally, the desire for some infallible guide in the midst of our doubts and difficulties is equally wide of the mark. it is so because, though the desire for truth is perfectly natural or highly commendable, there is not the slightest ground for supposing that it implies any royal road to truth. in all other matters, political, social, and physical, we have to blunder slowly into truth by harsh experience. why not in religious matters? upon this fitzjames frequently insists. deny any _à priori_ probability of such guidance, he says, and the catholic argument vanishes. moreover, as he argues at length in his review of the 'apologia,' it is absolutely inconsistent with facts. what is the use of saying that man's nature demands an infallible guide, when, as a matter of admitted fact, such a guide has only been granted to one small fraction of mankind? for thousands of years, and over the great majority of the present world, you admit yourselves that no such guide exists. what, then, is the value of an _à priori_ argument that it must exist? when newman has to do with the existence of the greek church, he admits it to be inconsistent with his theory, but discovers it to be a 'difficulty' instead of an 'objection.' that is to say that an argument which you cannot answer is to be dismissed on pretence of being only a 'difficulty,' as nonsense is to be admitted under the name of a 'mystery.' if you argued in that way in a court of justice, and, because you had decided a case one way, refused to admit evidence for the other view, what would be the value of your decision? i cannot here argue the justice of this view of newman's theories, though personally i think it just. but it is, in any case, eminently characteristic. fitzjames, like newman, had been much influenced by butler. both of them, after a fashion, accept butler's famous saying that 'probability is the guide of life.' newman, believing in the necessity of dogma, holds that we are justified in transmuting the belief corresponding to probability into such 'certitude' as corresponds to demonstration. he does so by the help of appeals to our conscience, which, for the reasons just given, fail to have any force for his opponent. fitzjames adhered steadily to butler's doctrine. there is, he says, a probability of the truth of the great religious doctrines--of the existence of a god and a soul; and, therefore, of the correctness of the belief that this world is a school or a preparation for something higher and better. no one could speak more emphatically than he often did of the vast importance of these doctrines. to hold them, he says, makes all the difference between a man and a beast. but his almost passionate assertion of this opinion would never lead him to over-estimate the evidence in its favour. we do not know the truth of these doctrines; we only know that they are probably true, and that probability is and must be enough for us; we must not torture our guesses into a sham appearance of infallible reasoning, nor call them self-evident because we cannot prove them, nor try to transfer the case from the court of reason to the court of sentiment or emotion. i might say, if i wished to be paradoxical, that this doctrine seems strange precisely because it is so common. it is what most people who think at all believe, but what nobody likes to avow. we have become so accustomed to the assertion that it is a duty for the ignorant to hold with unequivocal faith doctrines which are notoriously the very centres of philosophical doubt, that it is hard to believe that a man can regard them as at once important and incapable of strict proof. fitzjames naturally appears to the orthodox as an unbeliever, because he admits the doubt. he replies to one such charge that the 'broad general doctrines, which are the only consolation in death and the only solid sanction of morality, never have been, and, please god, never shall be, treated in these columns in any other spirit than that of profound reverence and faith.'[ ] yet he would not say, for he did not think, that those doctrines could be demonstrated. it was the odd thing about your brother, said his old friend t. c. sandars to me, that he would bring one face to face with a hopeless antinomy, and instead of trying, like most of us, to patch it up somehow, would conclude, 'now let us go to breakfast.' some of us discover a supernatural authority in these cases; others think that the doubt which besets these doctrines results from a vain effort to transcend the conditions of our intelligence, and that we should give up the attempt to solve them. most men to whom they occur resolve that if they cannot answer their doubts they can keep them out of sight, even of themselves. fitzjames was peculiar in frankly admitting the desirability of knowledge, which he yet admitted, with equal frankness, to be unattainable. and, for various reasons, partly from natural pugnacity, he was more frequently engaged in exposing sham substitutes for logic than in expounding his own grounds for believing in the probability. his own view was given most strikingly in a little allegory which i shall slightly condense, and which will, i think, sufficiently explain his real position in these matters. it concludes a review of a pamphlet by william thomson, then archbishop of york, upon the 'limits of philosophical enquiry.'[ ] i dreamt, he says, after bunyan's fashion, that i was in the cabin of a ship, handsomely furnished and lighted. a number of people were expounding the objects of the voyage and the principles of navigation. they were contradicting each other eagerly, but each maintained that the success of the voyage depended absolutely upon the adoption of his own plan. the charts to which they appealed were in many places confused and contradictory. they said that they were proclaiming the best of news, but the substance of it was that when we reached port most of us would be thrown into a dungeon and put to death by lingering torments. some, indeed, would receive different treatment; but they could not say why, though all agreed in extolling the wisdom and mercy of the sovereign of the country. saddened and confused i escaped to the deck, and found myself somehow enrolled in the crew. the prospect was unlike the accounts given in the cabin. there was no sun; we had but a faint starlight, and there were occasionally glimpses of land and of what might be lights on shore, which yet were pronounced by some of the crew to be mere illusions. they held that the best thing to be done was to let the ship drive as she would, without trying to keep her on what was understood to be her course. for 'the strangest thing on that strange ship was the fact that there was such a course.' many theories were offered about this, none quite satisfactory; but it was understood that the ship was to be steered due north. the best and bravest and wisest of the crew would dare the most terrible dangers, even from their comrades, to keep her on her course. putting these things together, and noting that the ship was obviously framed and equipped for the voyage, i could not help feeling that there was a port somewhere, though i doubted the wisdom of those who professed to know all about it. i resolved to do my duty, in the hope that it would turn out to have been my duty, and i then felt that there was something bracing in the mystery by which we were surrounded, and that, at all events, ignorance honestly admitted and courageously faced, and rough duty vigorously done, was far better than the sham knowledge and the bitter quarrels of the sickly cabin and glaring lamplight from which i had escaped. i need add no exposition of a parable which gives his essential doctrine more forcibly than i could do it. i will only add that he remained upon good terms with newman, who had, as he heard, spoken of his article as honest, plain-spoken, and fair to him. he hopes, as he says upon this, to see the old man and talk matters over with him--a phrase which probably anticipates the interview of which i have spoken. newman afterwards (september , ) writes to him in a friendly way, and gives him a statement of certain points of catholic moral theology. they seem to have met again, but without further argument. fitzjames wrote various articles in 'fraser' attacking manning, and criticising among other writings mr. lecky's 'rationalism' (very favourably), and professor seeley's then anonymous 'ecce homo.' he thinks that the author is a 'sheep in wolf's clothing,' and that his views dissolve into mist when closely examined. i need not give any account of these articles, but i may notice a personal connection which was involved. at this time mr. froude was editor of 'fraser,' a circumstance which doubtless recommended the organ. at what time he became acquainted with fitzjames i am unable to say; but the acquaintanceship ripened into one of his closest friendships. they had certain intellectual sympathies; and it would be hard to say which of them had the most unequivocal hatred of popery. here again, however, the friendship was compatible with, or stimulated by, great contrasts of temperament. no one could be blind to froude's great personal charm whenever he chose to exert it; but many people had the feeling that it was not easy to be on such terms as to know the real man. there were certain outworks of reserve and shyness to be surmounted, and they indicated keen sensibilities which might be unintentionally shocked. but to such a character there is often a great charm in the plain, downright ways of a masculine friend, who speaks what he thinks without reserve and without any covert intention. froude and fitzjames, in any case, became warmly attached; froude thoroughly appreciated fitzjames's fine qualities, and fitzjames could not but delight in froude's cordial sympathy.[ ] fitzjames often stayed with him in later years, both in ireland and devonshire: he took a share in the fishing, shooting, and yachting in which froude delighted; and if he could not rival his friend's skill as a sportsman admired it heartily, delighted in pouring out his thoughts about all matters, and, as froude told me, recommended himself to such companions as gamekeepers and fishermen by his hearty and unaffected interest in their pursuits. along with this friendship i must mention the friendship with carlyle. carlyle had some intercourse with my father in the 'fifties.' my father, indeed, had thought it proper to explain, in a rather elaborate letter after an early conversation, that he did not sympathise with one of carlyle's diatribes against the church of england, though he had not liked to protest at the moment. carlyle responded very courteously and asked for further meetings. his view of my father was coloured by some of his usual severity, but was not intentionally disparaging. fitzjames, on his first call, had been received by mrs. carlyle, who ordered him off the premises on suspicion of being an american celebrity hunter. he submitted so peacefully that she relented; called him back, and, discovering his name, apologised for her wrath. i cannot fix the dates, but during these years fitzjames gradually came to be very intimate with her husband. froude and he were often companions of the old gentleman on some of his walks, though fitzjames's opportunities were limited by his many engagements. i may here say that it would, i think, be easy to exaggerate the effects of this influence. in later years fitzjames, indeed, came to sympathise with many of carlyle's denunciations of the british constitution and parliamentary government. i think it probable that he was encouraged in this view by the fiery jeremiads of the older man. he felt that he had an eminent associate in condemning much that was a general object of admiration. but he had reached his own conclusions by an independent path. from carlyle he was separated by his adherence to mill's philosophical and ethical principles. he was never, in carlyle's phrase, a 'mystic'; and his common sense and knowledge of practical affairs made many of carlyle's doctrines appear fantastic and extravagant. the socialistic element of carlyle's works, of which mr. ruskin has become the expositor, was altogether against his principles. in walking with carlyle he said that it was desirable to steer the old gentleman in the direction of his amazingly graphic personal reminiscences instead of giving him texts for the political and moral diatribes which were apt to be reproductions of his books. in various early writings he expressed his dissent very decidedly along with a very cordial admiration both of the graphic vigour of carlyle's writings and of some of his general views of life. in an article in 'fraser' for december , he prefaces a review of 'frederick' by a long discussion of carlyle's principles. he professes himself to be one of the humble 'pig-philosophers' so vigorously denounced by the prophet. carlyle is described as a 'transcendentalist'--a kind of qualified equivalent to intuitionist. and while he admires the shrewdness, picturesqueness, and bracing morality of carlyle's teaching, fitzjames dissents from his philosophy. nay, the 'pig-philosophers' are the really useful workers; they have achieved the main reforms of the century; even their favourite parliamentary methods and their democratic doctrines deserve more respect than carlyle has shown them; and carlyle, if well advised, would recognise the true meaning of some of the 'pig' doctrines to be in harmony with his own. their _laissez-faire_ theory, for example, is really a version of his own favourite tenet, 'if a man will not work, neither let him eat.' although fitzjames's views changed, he could never become a thorough carlylean; and after undertaking to write about carlyle in mr. morley's series he abandoned the attempt chiefly because, as he told me, he found that he should have to adopt too frequently the attitude of a hostile critic. meanwhile carlyle admired my brother's general force of character, and ultimately made him his executor, in order, as he put it, that there might be a 'great molossian dog' to watch over his treasure. viii. view of the criminal law i come now to the third book of which i have spoken. this was the 'general view of the criminal law of england,' published in . fitzjames first begins to speak of his intention of writing this book in . he then took it up in preference to the history of the english administrative system, recommended by his father. that book, indeed, would have required antiquarian researches for which he had neither time nor taste. he thought his beginning too long and too dull to be finished at present. he was anxious, moreover, at the time of the education commission to emphasise the fact that he had no thoughts of abandoning his profession. a law-book would answer this purpose; and the conclusion of the commission in , and the contemporary breach with the 'saturday review,' gave him leisure enough to take up this task. the germ of the book was already contained in his article in the 'cambridge essays,' part of which he reproduces. he aspired to make a book which should be at once useful to lawyers and readable by every educated man. the 'view' itself has been in a later edition eclipsed by the later 'history of the english criminal law.' in point of style it is perhaps better than its successor, because more concentrated to a single focus. although i do not profess to be a competent critic of the law, a few words will explain the sense in which i take it to be characteristic of himself. the book, in the first place, is not, like most law-books, intended for purely practical purposes. it attempts to give an account of the 'general scope, tendency, and design of an important part of our institutions of which surely none can have a greater moral significance, or be more closely connected with broad principles of morality and politics, than those by which men rightfully, deliberately, and in cold blood, kill, enslave, or otherwise torment their fellow-creatures.'[ ] the phrase explains the deep moral interest belonging in his mind to a branch of legal practice which for sufficiently obvious reasons is generally regarded as not deserving the attention of the higher class of barristers. fitzjames was always attracted by the dramatic interest of important criminal cases, and by the close connection in various ways between criminal law and morality. he had now gained sufficient experience to speak with some authority upon a topic which was to occupy him for many years. in his first principles he was an unhesitating disciple of bentham[ ] and austin. bentham had given the first great impulse to the reforms in the english criminal law, which began about ; and austin had put bentham's general doctrine into a rigid form which to fitzjames appeared perfectly satisfactory. austin's authority has declined as the historical method has developed; fitzjames gives his impression of their true relations in an article on 'jurisprudence' in the 'edinburgh review' of october . he there reviews the posthumously published lectures of austin, along with maine's great book upon 'ancient law,' which in england heralded the new methods of thought. his position is characteristic. he speaks enthusiastically of austin's services in accurately defining the primary conceptions with which jurisprudence is conversant. the effect is, he says, nothing less than this; that jurisprudence has become capable of truly scientific treatment. he confirms his case by the parallel of the political economy founded by adam smith and made scientific by ricardo. i do not think that fitzjames was ever much interested in economical writings; and here he is taking for granted the claims which were generally admitted under the philosophical dynasty of j. s. mill. political economy was supposed to be a definitely constituted science; and the theory of jurisprudence, which sprang from the same school and was indeed its other main achievement, was entitled to the same rank. fitzjames argues, or rather takes for granted, that the claims of the economists to be strictly scientific are not invalidated by the failure of their assumptions to correspond exactly to concrete facts; and makes the same claim on behalf of austin. his view of maine's work is determined by this. he of course cordially admires his friend; but protests against the assumption by which maine is infected, that a history of the succession of opinions can be equivalent to an examination of their value. maine shows, for example, how the theory of the 'rights of man' first came up in the world; but does not thereby either prove or disprove it. it may have been a fallacy suggested by accident or a truth first discovered in a particular case. maine, therefore, and the historical school generally require some basis for their inquiries, and that basis is supplied by the teaching of bentham and austin. i will only observe in connection with this that fitzjames is tempted by his love of such inquiries to devote a rather excessive space in his law-book to inquiries about the logical grounds of conviction which have the disadvantage of not being strictly relevant, and the further disadvantage, i think, of following j. s. mill in some of the more questionable parts of his logic. the writings of bentham consisted largely in denunciations of the various failings of the english law; and here fitzjames takes a different position. one main point of the book was the working out of a comparison already made in the 'cambridge essays' between the english and the french systems. this is summed up in the statement that the english accepts the 'litigious' and the french the 'inquisitorial' system. in other words, the theory of french law is that the whole process of detecting crime is part of the functions of government. in france there is a hierarchy of officials who, upon hearing of a crime, investigate the circumstances in every possible way, and examine everyone who is able, or supposed to be able, to throw any light upon it. the trial is merely the final stage of the investigation, at which the various authorities bring out the final result of all their previous proceedings. the theory of english law, on the contrary, is 'litigious': the trial is a proceeding in which the prosecutor endeavours to prove that the prisoner has rendered himself liable to a certain punishment; and does so by producing evidence before a judge, who is taken to be, and actually is, an impartial umpire. he has no previous knowledge of the fact; he has had nothing to do with any investigations, and his whole duty is to see that the game is played fairly between the ligitants according to certain established rules. neither system, indeed, carries out the theory exclusively. 'an english criminal trial is a public inquiry, having for its object the discover of truth, but thrown for the purposes of obtaining that end into the form of a litigation between the prosecutor and the prisoner.'[ ] on the other hand, in the french system, the jury is really an 'excrescence' introduced by an afterthought. now, says fitzjames, the 'inquisitorial theory' is 'beyond all question the true one.' a trial ought obviously to be a public inquiry into a matter of public interest. he holds, however, that the introduction of the continental machinery for the detection of crime is altogether out of the question. it practically regards the liberty and comfort of any number of innocent persons as unimportant in comparison with the detection of a crime; and involves an amount of interference and prying into all manner of collateral questions which would be altogether unendurable in england. he is therefore content to point out some of the disadvantages which result from our want of system, and to suggest remedies which do not involve any radical change of principle. this brings out his divergence from bentham, not in principle but in the application of his principles. one most characteristic part of the english system is the law of evidence, which afterwards occupied much of fitzjames's thoughts. upon the english system there are a great number of facts which, in a logical sense, have a bearing upon the case, but which are forbidden to be adduced in a trial. so, to make one obvious example, husbands and wives are not allowed to give evidence against each other. why not? asks bentham. because, it is suggested, the evidence could not be impartial. that, he replies, is an excellent reason for not implicitly believing it; but it is no reason for not receiving it. the testimony, even if it be partial, or even if false, may yet be of the highest importance when duly sifted with a view to the discovery of the truth. why should we neglect any source from which light may be obtained? such arguments fill a large part of bentham's elaborate treatise upon the 'rationale of evidence,' and support his denunciations of the 'artificial' system of english law. english lawyers, he held, thought only of 'fee-gathering'; and their technical methods virtually reduced a trial from an impartial process of discovering truth into a mere struggle between lawyers fighting under a set of technical and arbitrary rules. he observes, for example, that the 'natural' mode of deciding a case has been preserved in a few cases by necessity, and especially in the case of courts-martial.[ ] bentham was not a practical lawyer; and fitzjames had on more than one occasion been impressed in precisely the opposite way by the same case.[ ] he had pointed out that the want of attention to the rules of evidence betrayed courts-martial into all manner of irrelevant and vexatious questions, which protracted their proceedings beyond all tolerable limits. but, on a larger scale, the same point was illustrated by a comparison between french and english trials. to establish this, he gives careful accounts of four english and three french trials for murder. the general result is that, although some evidence was excluded in the english trials which might have been useful, the advantage was, on the whole, greatly on their side. the french lawyers were gradually drawn on into an enormous quantity of investigations having very little relation to the case, and finally producing a mass of complicated statements and counter-statements beyond the capacity of a jury to bring to a definite issue. the english trials, on the other hand, did, in fact, bring matters to a focus, and allowed all really relevant matters to be fairly laid before the court. a criminal trial has to be more or less of a rough and ready bit of practical business. the test by which it is decided is not anything which can be laid down on abstract logical principles, but reduces itself to the simple fact that you can get twelve men to express a conviction equal to that which would decide them in important business of their own. and thus, though the english law is unsystematic, ill-arranged, and superficially wanting in scientific accuracy, it does, in fact, represent a body of principles, worked out by the rough common sense of successive generations, and requires only to be tabulated and arranged to become a system of the highest excellence. the greatest merit, perhaps, of the english system is the attitude naturally assumed by the judge. no one, says fitzjames, 'can fail to be touched' when he sees an eminent lawyer 'bending the whole force of his mind to understand the confused, bewildered, wearisome, and half-articulate mixture of question and statement which some wretched clown pours out in the agony of his terror and confusion.' the latitude allowed in such cases is highly honourable. 'hardly anything short of wilful misbehaviour, such as gross insults to the court or abuse of a witness, will draw upon (the prisoner) the mildest reproof.'[ ] the tacit understanding by which the counsel for the crown is forbidden to press his case unfairly is another proof of the excellence of our system, which contrasts favourably in this respect with the badgering and the prolonged moral torture to which a french prisoner is subject. reforms, however, are needed which will not weaken these excellences. the absence of any plan for interrogating the prisoner avoids the abuses of the french system, but is often a cruel hardship upon the innocent. 'there is a scene,' he says, 'which most lawyers know by heart, but which i can never hear without pain.' it is the scene when the prisoner, confused by the unfamiliar surroundings, and by the legal rules which he does not understand, tries to question the adverse witness, and muddles up the examination with what ought to be his speech for the defence, and, not knowing how to examine, is at last reduced to utter perplexity, and thinks it respectful to be silent. he mentions a case by which he had been much impressed, in which certain men accused of poaching had failed, from want of education and familiarity with legal rules, to bring out their real defence. an unlucky man, for example, had asked questions about the colour of a dog, which seemed to have no bearing upon the case, but which, as it afterwards turned out, incidentally pointed to a fact which identified the really guilty parties. he thinks that the interrogation of the prisoner might be introduced under such restrictions as would prevent any unfair bullying, and yet tend both to help an innocent man and to put difficulties in the way of sham or false defences of the guilty. this question, i believe, is still unsettled. i will not dwell upon other suggestions. i will only observe that he is in favour of some codification of the criminal law; though he thinks that enough would be done by re-enacting, in a simpler and less technical form, the six 'consolidation acts' of . he proposes, also, the formation of a ministry of justice which would in various ways direct the administration of the law, and superintend criminal legislation. briefly, however, i am content to say that, while he starts from bentham, and admits bentham's fundamental principles, he has become convinced by experience that bentham's onslaught upon 'judge-made law,' and legal fictions, and the 'fee-gathering' system, was in great part due to misunderstanding. the law requires to be systematised and made clear rather than to be substantially altered. it is, on the whole, a 'generous, humane, and high-minded system, eminently favourable to individuals, and free from the taint of that fierce cowardice which demands that, for the protection of society, somebody shall be punished when a crime has been committed.' though english lawyers are too apt to set off 'an unreasonable hardship against an unreasonable indulgence,' 'to trump one quibble by another, and to suppose that they cannot be wrong in practice because they are ostentatiously indifferent to theory,' the temper of the law is, in the main, 'noble and generous.' 'no spectacle,' he says, 'can be better fitted to satisfy the bulk of the population, to teach them to regard the government as their friend, and to read them lessons of truth, gentleness, moderation, and respect for the rights of others, especially for the rights of the weak and the wicked, than the manner in which criminal justice is generally administered in this country.'[ ] the book produced many of those compliments to which he was becoming accustomed, with a rather rueful sense of their small value. he could, he says, set up a shop with the stock he had received, though, in common honesty, he would have to warn his customers of the small practical value of his goods. two years hence, he thinks that a report of his being a legal author of some reputation may have reached an attorney. among the warmest admirers was willes, who called the 'view' a 'grand book,' kept it by him on the bench, and laid down the law out of it. willes remarks in a murder case at the same time (march ) that the prisoner has been defended 'with a force and ability which, if anything could console one for having to take part in such a case, would do so.' 'it is a great consolation to me,' remarks fitzjames. the local newspaper observes on the same occasion that fitzjames's speech for the prisoner kept his audience listening 'in rapt attention' to one of the ablest addresses ever delivered under such circumstances. in the beginning of he 'obtained the consent' of his old tutor field, now leader on the circuit, to his giving up attendance at sessions except upon special retainers. altogether he is feeling more independent and competent for his professional duties. ix. the 'pall mall gazette' at this time, however, he joined in another undertaking which for the following five years occupied much of his thoughts. it involved labours so regular and absorbing, that they would have been impossible had his professional employments been equal to his wishes. towards the end of he informs mr. smith that he cannot continue to be a regular contributor to the 'cornhill magazine.' he observes, however, that if mr. smith carries out certain plans then in contemplation, he will be happy to take the opportunity of writing upon matters of a more serious kind. the reference is to the 'pall mall gazette,' of which the first number appeared on february , , upon the opening day of the parliamentary session. the 'pall mall gazette' very soon took a place among daily papers similar to that which had been occupied by the 'saturday review' in the weekly press. many able writers were attached, and especially the great 'jacob omnium' (matthew james higgins), who had a superlative turn for 'occasional notes,' and 'w. r. g.' (william rathbone greg), who was fond of arguing points from a rather paradoxical point of view. 'i like refuting w. r. g.,' says fitzjames, though the 'refutations' were on both sides courteous and even friendly.[ ] mr. frederic harrison was another antagonist, who always fought in a chivalrous spirit, and on one occasion a controversy between them upon the theory of strikes actually ends by a mutual acceptance of each other's conclusions. a sharp encounter with 'historicus' of the 'times' shows that old cambridge encounters had not produced agreement. fitzjames was one of the writers to whom mr. smith applied at an early stage of the preparatory arrangements. fitzjames's previous experience of mr. smith's qualities as a publisher made him a very willing recruit, and he did his best to enlist others in the same service. he began to write in the second number of the paper, and before very long he took the lion's share of the leading articles. the amount of work, indeed, which he turned out in this capacity, simultaneously with professional work and with some other literary occupations, was so great that these years must, i take it, have been the most laborious in a life of unflagging labour. i give below an account of the number of articles contributed, which will tell the story more forcibly than any general statement. a word or two of explanation will be enough.[ ] the 'pall mall' of those days consisted of a leading article (rarely of two) often running to a much greater length than is now common; of 'occasional notes,' which were then a comparative novelty; of reviews, and of a few miscellaneous articles. the leading article was a rather more important part of the paper, or at least took up a larger proportion of space than it does at the present day. making allowance for sundays, it will be seen that in fitzjames wrote two-thirds of the leaders, nearly half the leaders in , and not much less than half in the three other years ( , , and ). the editor was mr. f. greenwood, who has kindly given me some of his recollections of the time. that mr. greenwood esteemed his contributor as a writer is sufficiently obvious from the simple statement of figures: and i may add that they soon formed a very warm friendship which was never interrupted in later years. i have said that fitzjames valued his connection with the paper because it enabled him to speak his mind upon many important subjects which had hitherto been forbidden to him. in the 'saturday review' he had been confined to the 'middles' and the reviews of books. he never touched political questions; and such utterances as occurred upon ecclesiastical matters were limited by the high church propensities of the proprietor. in the 'cornhill' he had been bound to keep within the limits prescribed by the tastes of average readers of light literature. in the 'pall mall gazette' he was able to speak out with perfect freedom upon all the graver topics of the day. his general plan, when in town, was to write before breakfast, and then to look in at the office of the 'pall mall gazette,' northumberland street, strand, in the course of his walk to his chambers. there he talked matters over with mr. greenwood, and occasionally wrote an article on the spot. when on circuit he still found time to write, and kept up a steady supply of matter. i find him remarking, on one occasion, that he had written five or six leaders in the 'pall mall gazette' for the week, besides two 'saturday review' articles. everyone who has had experience of journalism knows that the time spent in actual writing is a very inadequate measure of the mental wear and tear due to production. an article may be turned out in an hour or two; but the work takes off the cream of the day, and involves much incidental thought and worry. fitzjames seemed perfectly insensible to the labour; articles came from him as easily as ordinary talk; the fountain seemed to be always full, and had only to be turned on to the desired end. the chief fault which i should be disposed to find with these articles is doubtless a consequence of this fluency. he has not taken time to make them short. they often resemble the summing-up of a judge, who goes through the evidence on both sides in the order in which it has been presented to him, and then states the 'observations which arise' and the 'general result' (to use his favourite phrases). a more effective mode of presenting the case might be reached by at once giving the vital point and arranging the facts in a new order of subordination. the articles, however, had another merit which i take to be exceedingly rare. i have often wondered over the problem, what constitutes the identity of a newspaper? i do not mean to ask, though it might be asked, in what sense is the 'pall mall gazette' of to-day the same newspaper as the 'pall mall gazette' of ? but what is meant by the editorial 'we'? the inexperienced person is inclined to explain it as a mere grammatical phrase which covers in turn a whole series of contributors. but any writer in a paper, however free a course may be conceded to him, finds as a fact that the 'we' means something very real and potent. as soon as he puts on the mantle, he finds that an indefinable change has come over his whole method of thinking and expressing himself. he is no longer an individual but the mouthpiece of an oracle. he catches some infection of style, and feels that although he may believe what he says, it is not the independent outcome of his own private idiosyncrasy. now fitzjames's articles are specially remarkable for their immunity from this characteristic. when i read them at the time, and i have had the same experience in looking over them again, i recognised his words just as plainly as if i had heard his voice. a signature would to me and to all in the secret have been a superfluity. and, although the general public had not the same means of knowledge, it was equally able to perceive that a large part of the 'pall mall gazette' represented the individual convictions of a definite human being, who had, moreover, very strong convictions, and who wrote with the single aim of expressing them as clearly and vigorously as he could. fitzjames, as i have shown sufficiently, was not of the malleable variety; he did not fit easily into moulds provided by others; but now that his masterful intellect had full play and was allowed to pour out his genuine thought, it gave the impress of individual character to the paper in a degree altogether unusual. i have one anecdote from mr. greenwood which will sufficiently illustrate this statement. lord palmerston died on october , . on october he was buried in westminster abbey. fitzjames came to the 'pall mall gazette' office and proposed to write an article upon the occasion. he went for the purpose into a room divided by a thin partition from that in which mr. greenwood sat. mr. greenwood unintentionally became aware, in consequence, that the article was composed literally with prayer and with tears. no one who turns to it will be surprised at the statement. he begins by saying that we are paying honour to a man for a patriotic high spirit which enabled him to take a conspicuous part in building up the great fabric of the british empire. but he was also--as all who were taking part in the ceremony believed in their hearts--a 'man of the world' and 'a man of pleasure.' do we, then, disbelieve in our own creed, or are we engaged in a solemn mockery? palmerston had not obeyed the conditions under which alone, as every preacher will tell us, heaven can be hoped for. patriotism, good nature, and so forth are, as we are told, mere 'filthy rags' of no avail in the sight of heaven. if this belief be genuine, the service must be a mockery. but he fully believes that it is not genuine. the preachers are inconsistent, but it is an honourable inconsistency. if good and evil be not empty labels of insincere flattery, it is 'right, meet, and our bounden duty' to do what is being done even now--to kneel beside the 'great, good, and simple man whom we all deplore,' and to thank god that it has pleased him to remove our brother 'out of the miseries of this sinful world.' 'our miserable technical rules reach but a little way into the mystery' which 'dimly foreshadows that whatever we with our small capacities have been able to love and honour, god, who is infinitely wiser, juster, and more powerful, will love and honour too, and that whatever we have been compelled to blame, god, who is too pure to endure unrighteousness, will deal with, not revengefully or capriciously, but justly and with a righteous purpose. whatever else we believe, it is the cardinal doctrine of all belief worth having that the judge of all the earth will do right; that his justice is confined to no rules; that his mercy is over all the earth; and that revenge, caprice, and cruelty can have no place in his punishments.' few leading articles, i take it, have been written under such conditions or in such a spirit. the reader must have felt himself face to face with a real man, profoundly moved by genuine thoughts and troubled as only the most able and honest men are troubled, by the contrast between our accustomed commonplaces and our real beliefs. most of his articles are written in a strain of solid and generally calm common sense; and some, no doubt, must have been of the kind compared by his father to singing without inflated lungs--mere pieces of routine taskwork. yet, as i have already shown, by his allegory of the ship, there was always a strong vein of intense feeling upon certain subjects, restrained as a rule by his dislike to unveiling his heart too freely and yet making itself perceptible in some forcible phrase and in the general temper of mind implied. the great mass of such work is necessarily of ephemeral interest; and it is painful to turn over the old pages and observe what a mould of antiquity seems to have spread over controversies so exciting only thirty years ago. we have gone far in the interval; though it is well to remember that we too shall soon be out of date, and our most modern doctrines lose the bloom of novelty. there are, however, certain lights in which even the most venerable discussions preserve all their freshness. without attempting any minute details, i will endeavour to indicate the points characteristic of my brother's development. there was one doctrine which he expounds in many connections, and which had a very deep root in his character. it appears, for example, in his choice of a profession; decided mainly by the comparison between the secular and the spiritual man. the problem suggested to him by lord palmerston shows another application of the same mode of thought. what is the true relation between the church and the world; or between the monastic and ascetic view of life represented by newman and the view of the lawyer or man of business? to him, as i have said, god seemed to be more palpably present in a court of justice than in a monastery; and this was not a mere epigram expressive of a transitory mood. various occurrences of the day led him to apply his views to questions connected with the established church. after the 'essays and reviews' had ceased to be exciting there were some eager discussions about colenso, and his relations as bishop of natal to the bishop of capetown. controversies between liberal catholics and ultramontanes raised the same question under different aspects, and fitzjames frequently finds texts upon which to preach his favourite sermon. it may be said, i think, that there are three main lines of opinion. in the first place, there was the view of the liberationists and their like. the ideal is a free church in a free state. each has its own sphere, and, as macaulay puts it in his famous essay upon mr. gladstone's early book, the state has no more to do with the religious opinions of its subjects than the north-western railway with the religious opinions of its shareholders. this, represented a view to which fitzjames felt the strongest antipathy. it assumed, he thought, a radically false notion, the possibility of dividing human life into two parts, religious and secular; whereas in point of fact the state is as closely interested as the church in the morality of its members, and therefore in the religion which determines the morality. the state can only keep apart permanently from religious questions by resigning all share in the most profoundly important and interesting problems of life. to accept this principle would therefore be to degrade the state to a mere commercial concern, and it was just for that reason that its acceptance was natural to the ordinary radical who reflected the prejudices of the petty trader. a state which deserves the name has to adopt morality of one kind or another, in its criminal legislation, in its whole national policy, in its relation to education, and more or less in every great department of life. in his view, therefore, the ordinary cry for disestablishment was not the recognition of a tenable and consistent principle, but an attempt to arrange a temporary compromise which could only work under special conditions, and must break up whenever men's minds were really stirred. however reluctant they may be, they will have to answer the question, is this religion true or not? and to regulate their affairs accordingly. he often expresses a conviction that we are all in fact on the eve of such a controversy, which must stir the whole of society to its base. we have, then, to choose between two other views. the doctrine of sovereignty expounded by austin, and derived from his favourite philosopher hobbes, enabled him to put the point in his own dialect. the difference between church and state, he said, is not a difference of spheres, but a difference of sanctions. their commands have the same subject matter: but the priest says, 'do this or be damned'; the lawyer, 'do this or be hanged.' hence the complete separation is a mere dream. since both bodies deal with the same facts, there must be an ultimate authority. the only question is which? will you obey the pope or the emperor, the power which claims the keys of another life or the power which wields the sword in this. so far he agrees with the ultramontanes as against the liberal catholics. but, though the ultramontanes put the issue rightly, his answer is diametrically opposite. he follows hobbes and is a thorough-going erastian. he sympathised to some degree with the doctrine of coleridge and dr. arnold. they regarded the church and the state as in a sense identical; as the same body viewed under different aspects. fitzjames held also that state and church should be identical; but rather in the form that state and church were to be one and that one the state. for this there were two good reasons. in the first place, the claims of the church to supernatural authority were altogether baseless. to bow to those claims was to become slaves of priests and to accept superstitions. and, in the next place, this is no mere accident. the division between the priest and layman corresponds to his division between his 'sentimentalist' and his 'stern, cold man of common sense.' now the priest may very well supply the enthusiasm, but the task of legislation is one which demands the cool, solid judgment of the layman. he insists upon this, for example, in noticing professor seeley's description of the 'enthusiasm of humanity' in 'ecce homo.' such a spirit, he urges, may supply the motive power, but the essence of the legislative power is to restrict and constrain, and that is the work not of the enthusiast, but of the man of business. during this period he seems to have had some hopes that his principles might be applied. the lawyers had prevented the clergy from expelling each section of the church in turn: and the decision in the 'essays and reviews' cases had settled that free-thinking should have its representatives among ecclesiastical authorities. at one period he even suggests that, if an article or two were added to the thirty-nine, some change made in the ordination service, and a relaxation granted in the terms of subscription, the church might be protected from sacerdotalism; and, though some of the clergy might secede to rome, the church of england might be preserved as virtually the religious department of the state. he soon saw that any realisation of such views was hopeless. he writes from india in to a friend, whom he had advised upon a prosecution for heresy, saying that he saw clearly that we were drifting towards voluntaryism. any other solution was for the present out of the question; although he continued to regard this as a makeshift compound, and never ceased to object to disestablishment. fitzjames's political views show the same tendencies. he had not hitherto taken any active interest in politics, taken in the narrower sense. our friend henry fawcett, with whom he had many talks on his christmas visits to trinity hall, was rather scandalised by my brother's attitude of detachment in regard to the party questions of the day. fitzjames stood for harwich in the liberal interest at the general election of ; but much more because he thought that a seat in parliament would be useful in his profession than from any keen interest in politics. the harwich electors in those days did not, i think, take much interest themselves in political principles. both they and he, however, seemed dimly to perceive that he was rather out of his element, and the whole affair, which ended in failure, was of the comic order. his indifference and want of familiarity with the small talk of politics probably diminished the effect of his articles in so far as it implied a tendency to fall back upon principles too general for the average reader. but there was no want of decided convictions. the death of palmerston marked the end of the old era, and was soon succeeded by the discussions over parliamentary reform which led to disraeli's measure of . fitzjames considered himself to be a liberal, but the liberals of those days were divided into various sections, not fully conscious of the differences which divided them. in one of his 'cornhill' articles[ ] fitzjames had attempted to define what he meant by liberalism. it meant, he said, hostility to antiquated and narrow-minded institutions. it ought also to mean 'generous and high-minded sentiments upon political subjects guided by a highly instructed, large-minded and impartial intellect, briefly the opposite of sordidness, vulgarity, and bigotry.' the party technically called liberal were about to admit a larger popular element to a share of political power. the result would be good or bad as the new rulers acted or did not act in the spirit properly called liberal. unluckily the flattery of the working-man has come into fashion; we ignore his necessary limitations, and we deify the 'casual opinions and ineffectual public sentiments' of the half-educated. 'the great characteristic danger of our days is the growth of a quiet, ignoble littleness of character and spirit.' we should aim, therefore, at impressing our new masters 'with a lofty notion not merely of the splendour of the history of their country, but of the part which it has to play in the world, and of the spirit in which it should be played.' he gives as an example a topic to which he constantly turns. the 'whole fabric' of the indian empire, he says, is a monument of energy, 'skill and courage, and, on the whole, of justice and energy, such as the world never saw before.' how are we to deal with that great inheritance bequeathed to us by the courage of heroes and the wisdom of statesmen? india is but one instance. there is hardly an institution in the country which may not be renewed if we catch the spirit which presided over its formation. liberals have now to be authors instead of critics, and their solution of such problems will decide whether their success is to be a curse or a blessing. this gives the keynote of his writings in the 'pall mall gazette.' he frankly recognises the necessity, and therefore does not discuss the advisability, of a large extension of the franchise. he protests only against the view, which he attributes to bright, that the new voters are to enter as victors storming the fortress of old oppressors, holding that they should be rather cordially invited to take their place in a stately mansion upheld for eight centuries by their ancestors. when people are once admitted, however, the pretext for admission is of little importance. fitzjames gradually comes to have his doubts. there is, he says, a liberalism of the intellect and a liberalism of sentiment. the intellectual liberal is called a 'cold-hearted doctrinaire' because he asks only whether a theory be true or false; and because he wishes for statesmanlike reforms of the church, the educational system, and the law, even though the ten-pound householder may be indifferent to them. but the sentimental liberal thought only of such measures as would come home to the ten-pound householder; and apparently this kind of liberal was getting the best of it. the various party manoeuvres which culminated in the reform bill begin to excite his contempt. he is vexed by the many weaknesses of party government. the war of suggests reflections upon the military weakness of england, and upon the inability of our statesmen to attend to any object which has no effect upon votes. the behaviour of the conservative government in the case of the hyde park riots of the same year excites his hearty contempt. he is in favour of the disestablishment of the irish church, and lays down substantially the principles embodied in mr. gladstone's measure. but he sympathises more and more with carlyle's view of our blessed constitution. we have the weakest and least permanent government that ever ruled a great empire, and it seems to be totally incapable of ever undertaking any of the great measures which require foresight and statesmanship. he compares in this connection the construction of legal codes in india with our inability to make use of a great legal reformer, such as lord westbury, when we happen to get him. sentiments of this kind seem to grow upon him, although they are not expressed with bitterness or many personal applications. it is enough to say that his antipathy to sentimentalism, and to the want of high patriotic spirit in the manchester school of politics, blends with a rather contemptuous attitude towards the parliamentary system. it reveals itself to him, now that he is forced to become a critic, as a petty game of wire-pulling and of pandering to shallow popular prejudices of which he is beginning to grow impatient. i may finish the account of his literary activity at this time by saying that he was still contributing occasional articles to 'fraser' and to the 'saturday review.' the 'saturday review' articles were part of a scheme which he took up about . it occurred to him that he would be employing himself more profitably by writing a series of articles upon old authors than by continuing to review the literature of the day. he might thus put together a kind of general course of literature. he wrote accordingly a series of articles which involved a great amount of reading as he went through the works of some voluminous authors. they were published as 'horæ sabbaticæ' in , in three volumes, without any serious revision. it is unnecessary to dwell upon them at any length. it would be unfair to treat them as literary criticism, for which he cared as little as it deserves. he was very fond, indeed, of sainte-beuve, but almost as much for the information as for the criticism contained in the 'causeries.' he had always a fancy for such books as gibbon's great work which give a wide panoramic view of history, and defended his taste on principle. these articles deal with some historical books which interested him, but are chiefly concerned with french and english writers from hooker to paley and from pascal to de maistre, who dealt with his favourite philosophical problems. their peculiarity is that the writer has read his authors pretty much as if he were reading an argument in a contemporary magazine. he gives his view of the intrinsic merits of the logic with little allowance for the historical position of the author. he has not made any study of the general history of philosophy, and has not troubled himself to compare his impressions with those of other critics. the consequence is that there are some very palpable misconceptions and failure to appreciate the true relation to contemporary literature of the books criticised. i can only say, therefore, that they will be interesting to readers who like to see the impression made upon a masculine though not specially prepared mind by the perusal of certain famous books, and who relish an independent verdict expressed in downright terms without care for the conventional opinion of professional critics. his thoughts naturally turned a good deal to various projects connected with his writing. in july he writes that he has resolved to concentrate himself chiefly upon the 'pall mall gazette' for the present. he is, however, to complete some schemes already begun. the 'fraser' articles upon religious topics will make one book; then there are the 'horæ sabbaticæ' articles, of which he has already written fifty-eight, and which will be finished in about twenty more. but, besides this, he has five law-books in his mind, including a rewriting of the book on criminal law and a completion of the old book upon the administrative history. others are to deal with martial law, insanity, and the relations of england to india and the colonies. beyond these he looks at an 'awful distance' upon a great book upon law and morals. he is beginning to doubt whether literature would not be more congenial than law, if he could obtain some kind of permanent independent position. law, no doubt, has given him a good training, but the pettiness of most of the business can hardly be exaggerated; and he hardly feels inclined to make it the great aim of his life. he had, however, risen to a distinctly higher position on his circuit; and just at this time he was engaged in one of the cases which, as usual, brought more in the way of glory than of gain. x. governor eyre the troubles in jamaica had taken place in october . the severity of the repressive measures excited indignation in england; and discussions arose conducted with a bitterness not often paralleled. the gordon case was the chief topic of controversy. governor eyre had arrested gordon, whom he considered to be the mainspring of the insurrection, and sent him to the district in which martial law had been proclaimed. there he was tried by a court-martial ordered by general nelson, and speedily hanged. the controversy which followed is a curious illustration of the modes of reasoning of philosophers and statesmen. nobody could deny the general proposition that the authorities are bound to take energetic measures to prevent the horrors of a servile insurrection. nor could anyone deny that they are equally bound to avoid the needless severities which the fear of such horrors is likely to produce. which principle should apply was a question of fact; but in practice the facts were taken for granted. one party assumed unanimously that governor eyre had been doing no more than his duty; and the other, with equal confidence, assumed that he was guilty of extreme severity. a commission, consisting of sir henry storks, mr. russell gurney, and mr. maule, the recorder of leeds, was sent out at the end of to inquire into the facts. meanwhile the jamaica committee was formed, of which j. s. mill was chairman, with mr. p. a. taylor, the radical leader, as vice-chairman.[ ] the committee (in january ) took the opinions of fitzjames and mr. edward james as to the proper mode of invoking the law. fitzjames drew the opinion, which was signed by mr. james and himself.[ ] after the report of the commission (april ), which showed that excesses had been committed, the committee acted upon this opinion. from fitzjames's letters written at the time, i find that his study of the papers published by the commission convinced him that governor eyre had gone beyond the proper limits in his behaviour towards gordon. the governor, he thought, had been guilty of an 'outrageous stretch of power,' and had hanged gordon, not because it was necessary to keep the peace, but because it seemed to be expedient on general political grounds. this was what the law called murder, whatever the propriety of the name. fitzjames made an application in january before sir thomas henry, the magistrate at bow street, to commit for trial the officers responsible for the court-martial proceedings (general nelson and lieutenant brand) on the charge of murder. in march he appeared before the justices at market drayton, in shropshire, to make a similar application in the case of governor eyre. he was opposed by mr. (the late lord) hannen at bow street, and by mr. giffard (now lord halsbury) at market drayton. the country magistrates dismissed the case at once; but sir thomas henry committed nelson and brand for trial. mr. lushington tells me that sir thomas henry often spoke to him with great admiration of fitzjames's powerful argument on the occasion. on april , , the trial of nelson and brand came on at the old bailey, when chief justice cockburn delivered an elaborate charge, taking substantially the view of the law already expounded by fitzjames. the grand jury, however, threw out the bill. the law, as understood by fitzjames, comes, i think, substantially to this. the so-called 'martial law' is simply an application of the power given by the common law to put down actual insurrection by force. the officers who employ force are responsible for any excessive cruelty, and are not justified in using it after resistance is suppressed, or the ordinary courts reopened. the so-called courts-martial are not properly courts at all, but simply committees for carrying out the measures adopted on the responsibility of the officials; and the proclamation is merely a public notice that such measures will be employed. it is clear from fitzjames's speeches that he felt much sympathy for the persons who had been placed in a position of singular difficulty, and found it hard to draw the line between energetic defence of order and over-severity to the rebels. he explains very carefully that he is not concerned with the moral question, and contends only that the legal name for their conduct is murder. in fact, he paid compliments to the accused which would be very inappropriate to the class of murderers in the ordinary sense of the term. the counsel on the opposite side naturally took advantage of this, and described his remarks as a 'ghastly show of compliment.' it must be awkward to say that a man is legally a murderer when you evidently mean only he has lost his head and gone too far under exceedingly trying circumstances. the jamaica committee did not admit of any such distinction. to them governor eyre appeared to be morally as well as legally guilty of murder. fitzjames appears to have felt that the attempt to proceed further would look like a vindictive persecution; and he ceased after this to take part in the case. he congratulated himself upon this withdrawal when further proceedings (in ) led to abortive results. one result was a coolness between my brother and j. s. mill, who was displeased by his want of sufficient zeal in the matter. they had been on friendly terms, and i remember once visiting mill at blackheath in my brother's company. there was never, i think, any cordial relation between them. fitzjames was a disciple of mill in philosophical matters, and in some ways even, as i hold, pushed mill's views to excess. he complains more than once at this time that carlyle was unjust to the utilitarian views, which, in his opinion, represented the true line of advance. but carlyle was far more agreeable to him personally. the reason was, i take it, that carlyle had what mill had not, an unusual allowance of the quality described as 'human nature.' mill undoubtedly was a man of even feminine tenderness in his way; but in political and moral matters he represented the tendency to be content with the abstractions of the unpractical man. he seemed to fitzjames at least to dwell in a region where the great passions and forces which really stir mankind are neglected or treated as mere accidental disturbances of the right theory. mill seemed to him not so much cold-blooded as bloodless, wanting in the fire and force of the full-grown male animal, and comparable to a superlatively crammed senior wrangler, whose body has been stunted by his brains. fitzjames could only make a real friend of a man in whom he could recognise the capacity for masculine emotions as well as logical acuteness, and rightly or wrongly mill appeared to him to be too much of a calculating machine and too little of a human being. this will appear more clearly hereafter. xi. indian appointment in the meantime fitzjames was obtaining, as usual, some occasional spurts of practice at the bar, while the steady gale still refused to blow. he had an influx of parliamentary business, which, for whatever reason, did not last long. he had some arbitration cases of some importance, and he was employed in a patent case in which he took considerable interest. he found himself better able than he had expected to take in mechanical principles, and thought that he was at last getting something out of his cambridge education. mr. chamberlain has kindly sent me his recollections of this case. 'i first made the acquaintance of sir j. f. stephen' (he writes) 'in connection with a very important and complicated arbitration in which the firm of nettlefold & chamberlain, of which i was then a partner, was engaged. sir james led for us in this case, which lasted nearly twelve months, and he had as junior the late lord bowen. the arbitrator was the present baron pollock, assisted by mr. hick, m.p., the head of a great engineering firm. from the first i was struck with sir james stephen's extraordinary grasp of a most complicated subject, involving as it did the validity of a patent and comparison of most intricate machinery, as well as investigation of most elaborate accounts. he insisted on making himself personally acquainted with all the processes of manufacture, and his final speech on the case was a most masterly summary of all the facts and arguments. in dealing with hostile witnesses he was always firm but courteous, never taking unfair advantage or attempting to confuse, but solely anxious to arrive at the truth. he was a tremendous worker, rising very early in the morning, and occupying every spare moment of his time. i remember frequently seeing him in moments of leisure at work on the proofs of the articles which he was then writing for the "pall mall gazette." in private he was a most charming companion, full of the most varied information and with a keen sense of humour. our business relations led to a private friendship, which lasted until his death.' in he took silk, for which he had applied unsuccessfully two years before. in the autumn of the same year he sat for the first time in the place of one of the judges at leeds, and had the pleasure of being 'my lord,' and trying criminals. 'it appears to me,' he says, 'to be the very easiest work that ever i did.' the general election at the end of brought him some work in the course of the following year. he was counsel in several election petitions, and found the work contemptible. 'it would be wearisome,' he says, 'to pass one's life in a round of such things, even if one were paid _l._ a day.' advocacy in general is hardly a satisfactory calling for a being with an immortal soul, and perhaps a mortal soul would have still less excuse for wasting its time. the view of the ugly side of politics is disgusting, and he acknowledges a 'restless ambition' prompting him to look to some more permanent results. these reflections were partly suggested by a new turn of affairs. i have incidentally quoted more than one phrase showing how powerfully his imagination had been impressed by the indian empire. he says in his last book[ ] that in his boyhood macaulay's 'essays' had been his favourite book. he had admired their manly sense, their 'freedom from every sort of mysticism,' their 'sympathy with all that is good and honourable.' he came to know him almost by heart, and in particular the essays upon clive and warren hastings gave him a feeling about india like that which other boys have derived about the sea from marryat's novels. the impression, he says, was made 'over forty years ago,' that is, by . in fact the indian empire becomes his staple illustration whenever he is moved to an expression of the strong patriotic sentiment, which is very rarely far from his mind. he speaks in of recurring to an 'old plan' for writing a book about india. i remember that he suggested to me about that date that i should take up such a scheme, and was a good deal amused by my indignation at the proposal. james mill, he argued, had been equally without the local knowledge which i declared to be necessary to a self-respecting author. several circumstances had strengthened the feeling. his friend maine had gone to india in as legal member of council, and was engaged upon that work of codification to which he refers admiringly in the 'view of the criminal law.' in november fitzjames's brother-in-law, henry cunningham, went to india, where he was appointed public prosecutor in the punjab. his sister, then miss emily cunningham, joined him there. their transplantation caused a very important part of fitzjames's moorings (if i may say so) to be fixed in india. it became probable that he might be appointed maine's successor. in this was suggested to him by maine himself, when he regarded it on the whole unfavourably; but during the question came to need an answer. against accepting the post was the risk to his professional prospects. although not so brilliant as could be wished, they presented several favourable appearances; and he often hoped that he was at last emerging definitely from his precarious position. his opinion varied a little with the good or bad fortune of successive circuits. he felt that he might be sacrificing the interests of his family to his own ambition. the domestic difficulty was considerable. he had at this time seven children; and the necessity of breaking up the family would be especially hard upon his wife. upon the other hand was the desire for a more satisfying sphere of action. 'i have been having a very melancholy time this circuit' (he writes to miss cunningham, march , ). 'i am thoroughly and grievously out of spirits about these plans of ours. on the whole i incline towards them; but they not unfrequently seem to me cruel to mary, cruel to the children, undutiful to my mother, quixotic and rash and impatient as regards myself and my own prospects.... i have not had a really cheerful and easy day for weeks past, and i have got to feel at last almost beaten by it.' he goes on to tell how he has been chaffed with the characteristic freedom of barristers for his consequent silence at mess. it is 'thoroughly weak-minded of me,' he adds, but he will find a 'pretty straight road through it in one direction or another.' gradually the attractions of india became stronger. 'it would be foolish,' he says, 'when things are looking well on circuit, to leave a really flourishing business to gratify a taste, though i must own that my own views and henry cunningham's letters give me almost a missionary feeling about the country.' he reads books upon the subject and his impression deepens. india, he declares, seems to him to be 'legally, morally, politically, and religiously nearly the most curious thing in the world.' at last, on may , while he is attending a 'thoroughly repulsive and disgusting' trial of an election petition at stafford, he becomes sick of his indecision. he resolves to take a two hours' walk and make up his mind before returning. he comes back from his walk clear that it is 'the part of a wise and brave man' to accept such a chance when it comes in his way. next day he writes to grant duff, then indian under-secretary, stating his willingness to accept the appointment if offered to him. he was accordingly appointed on july . a fortnight later the chief justiceship of calcutta, vacant by the resignation of sir barnes peacock, was offered to him; but he preferred to retain his previous appointment, which gave him precisely the kind of work in which he was most interested. he was pleased to recollect that the post on its first creation had been offered to his father. among his earliest memories were those of the talks about india which took place at kensington gore on that occasion, when macaulay strongly advised my father to take the post of which he soon became himself the first occupant. fitzjames spent the summer at a house called drumquinna on the kenmare river. froude was his neighbour at dereen on the opposite bank, and they saw much of each other. in november, after various leave-takings and the reception of a farewell address on resigning the recordership of newark, he set out for india, his wife remaining for the present in england. footnotes: [footnote : 'bars of france and england,' _cornhill magazine_, p. , august .] [footnote : he died june , .] [footnote : may , .] [footnote : i see from a contemporary note that fitzjames attributes an article upon goethe in one of the first numbers to 'froude, who wrote the _nemesis of faith_'; but this appears to be only his conjecture.] [footnote : i believe also that for many years he wrote the annual summary of events in the _times_.] [footnote : a list was preserved by fitzjames of his contributions to the _saturday review_ and other periodicals of his time, which enables me to speak of his share with certainty.] [footnote : december , .] [footnote : see e.g. _saturday review_, january and july , , 'mr. dickens as a politician,' and 'the _saturday review_ and light literature.'] [footnote : october , .] [footnote : mr. rogers's _reminiscences_ ( ), - , gives a full and interesting account of this commission.] [footnote : p. .] [footnote : captain parker snow has sent me the correspondence and some other documents. an account of his remarkable career will be found in the _review of reviews_ for april . the case is reported in the _times_ of december , .] [footnote : _liberty, equality, fraternity._] [footnote : reprinted in _essays by a barrister_.] [footnote : see especially his article upon 'jurisprudence' in the _edinburgh review_ for october .] [footnote : reprinted in _essays by a barrister_.] [footnote : it is characteristic that although in april i find him saying that he is at the end of 'two years of as hard and unremitting work as ever he did in his life,' i am quite unable to make out why the years should be limited to two: and certainly the work became no lighter afterwards.] [footnote : chap. vi. in first edition, p. .] [footnote : dr. williams printed privately some _hints to my counsel in the court of arches_, of which mrs. williams has kindly sent me a copy. he declares that he 'accepts the articles as they are, and claims to teach them with fidelity and clearness unsurpassed by living man.' no one, i think, can doubt his perfect sincerity. the 'hints' probably suggested some of the quotations and arguments in my brother's defence'; but there is no close coincidence. dr. williams cordially expressed his satisfaction with his counsel's performance.] [footnote : _defence_, pp. , .] [footnote : _defence_, p. .] [footnote : the substance of much of this paper is given in an article called 'women and scepticism' in _fraser's magazine_ for december .] [footnote : _fraser's magazine_, february .] [footnote : _pall mall gazette_, october , . i shall speak of his contributions to this paper presently.] [footnote : _pall mall gazette_, november , .] [footnote : mr. froude promised me some recollections of this intimacy; but the promise was dissolved by his death in .] [footnote : preface.] [footnote : see 'bentham' in _horæ sabbaticæ_, iii. - , published originally about this time.] [footnote : _view of criminal law_, p. .] [footnote : e.g. _works_, vii. , &c.] [footnote : see articles on courts-martial in _cornhill_ for june .] [footnote : _view of criminal law_, p. .] [footnote : _view of criminal law_, p. .] [footnote : one of his smartest phrases was occasioned by mr. greg declaring himself to be a christian. he was such a christian, said fitzjames, as an early disciple who had admired the sermon on the mount, but whose attention had not been called to the miracles, and who had died before the resurrection.] [footnote : contributions of james fitzjames stephen to the _pall mall gazette_ (kindly sent to me by mr. george smith):-- dates articles occasional notes correspondence -- -- -- -- -- --] [footnote : 'liberalism,' january .] [footnote : mr. charles buxton was the first chairman, but resigned because he thought a prosecution of governor eyre inexpedient, though not unjust. see j. s. mill's _autobiography_, pp. - .] [footnote : it is substantially given in his _history of the criminal law_ ( ), i. - .] [footnote : _nuncomar and impey_, ii. .] chapter iv _india_ i. personal history fitzjames reached calcutta upon december , . henry cunningham had made the long journey from lahore to pay him a few days' visit. the whole time was devoted to an outpour of talk productive of boundless satisfaction to one--i suppose that i may say to both--of them. fitzjames stayed in india until the middle of april , and his absence from england, including the homeward and outward journeys, lasted for two years and a half. they were in some ways the most important years of his life; but they were monotonous enough in external incidents. i may briefly say that his wife joined him at calcutta in the beginning of march , and accompanied him to simla. they diverged to pay a visit on the way to the cunninghams at lahore. they stayed at simla till the end of october, where, for five or six weeks in may and june, fitzjames was laid up with a sharp attack of fever. this was his only illness in india, and the only interruption to work of more than a day or two's duration. on his return to calcutta he visited delhi, whence his wife returned to england for the winter. in april he went again to simla, and on the way thither was rejoined at allahabad by his wife. in the following november she returned to england, while he remained to spend the winter of - in calcutta and finish his official work. he started in the best of health and in a sanguine frame of mind. he wrote his first letter to his mother from boulogne (nov. , ). 'i cannot tell you,' he says, 'how perfectly happy i feel in all my prospects. i never was more sure in my life of being right.... a whole ocean of small cares and worries has taken flight, and i can let my mind loose on matters i really care about.' he writes a (fourth) letter to his mother between paris and marseilles in the same spirit. 'i don't know whether you understand it,' he says, 'but if i had said "no" to india, i should feel as if i had been a coward and had lost the right to respect myself or to profess the doctrines i have always held and preached about the duty of doing the highest thing one can and of not making an idol of domestic comfort.' he continued to write to his mother regularly, dictating letters when disabled from writing by his fever, and the whole series, carefully numbered by her from to , now lies before me. he wrote with almost equal regularity to other members of his family, of which he considered my sister-in-law, then miss thackeray,[ ] to be an adopted member; and occasionally to other friends, such as carlyle, froude, and venables. but to his mother he always devoted the first part of the time at his disposal. the pressure of work limits a few of these letters to mere assertions of his continued health and happiness; but he is always anxious to tell her any little anecdotes likely to interest her. i will give one of these, because it is striking in itself, and his frequent references to it showed how much it had impressed him. an english party, one of whom told him the story, visited a wild gorge on the brahmapootra, famous for a specially holy shrine. there they fell in with a fakeer, who had wandered for twenty years through all the holy places between the himalayas and cape comorin. he had travelled on foot; he had never lain down, and only rested at night by putting his arms through the loop of a rope. his body was distorted and his legs and arms wasted and painful. he came with a set of villagers to the shrine which was to be the end of all his wanderings; 'did poojah,' and so finished his task. the villagers worshipped him, and prepared a feast and a comfortable bed; but the fakeer looked sad and said, 'no! when i began my journey the goddess kali appeared to me and told me what i was to do. had i done it rightly, she would have appeared again to tell me that she was satisfied. now i must visit all the shrines once more,' and in spite of all persuasion he set out for another twenty years' penance. 'i assure you,' said the narrator, 'that i thought it very sad and did not laugh in the least.' 'was not that,' says fitzjames, 'a truly british comment?' these and other letters have one peculiarity which i shall not exemplify by quotations. there are some feelings, as i find my father observing in one of his own letters, which it is desirable 'rather to intimate than to utter.' among them many people, i think, would be inclined to reckon their tender affections for members of their own family. they would rather cover their strongest emotions under some veil of indirect insinuation, whether of playful caress or ironical depreciation, than write them down in explicit and unequivocal assertions. that, however, was not fitzjames's style in any case. his words were in all cases as straightforward and downright as if he were giving evidence upon oath. if he thinks ill of a man, he calls him bluntly a 'scoundrel' or 'a poor creature,' and when he speaks of those who were nearest and dearest to him he uses language of corresponding directness and energy. this method had certainly an advantage when combined with unmistakable sincerity. there could be no sort of doubt that he meant precisely what he said, or that he was obeying the dictates of one of the warmest of hearts. but point-blank language of this kind seems to acquire a certain impropriety in print. i must ask my readers, therefore, to take it for granted that no mother could have received more genuine assurances of the love of a son; and that his other domestic affections found utterance with all the strength of his masculine nature. 'i think myself,' as he sums up his feelings on one occasion, 'the richest and happiest man in the world in one of the greatest elements of richness and happiness'--that is, in the love of those whom he loves. that was his abiding conviction, but i shall be content with the general phrase. one other topic must be just touched. his daughter rosamond was at this time an infant, just learning to speak, and was with her mother at simla in both summers, where also his youngest daughter, dorothea, was born in . many of the letters to his mother are filled with nursery anecdotes intended for a grandmother's private reading, and certainly not to be repeated here. i mention the fact, however, because it was really significant. when his elder children were in the nursery, fitzjames had seen comparatively little of them, partly because his incessant work took him away from home during their waking hours, and partly because he had not been initiated into the charm of infantile playfulness, while, undoubtedly, his natural stiffness and his early stoicism made the art of unbending a little difficult. under the new conditions, however, he discovered the delightfulness of the relation between a bright little child and a strong grown-up man--at any rate when they are daughter and father. henceforward he cultivated more directly an affectionate intercourse with his children, which became a great source of future happiness. his correspondence, though active enough, did not occupy all his leisure on the journey. parting from home, he says in a letter written in the train near calcutta to his old friend venables, was 'like cutting the flesh off my bones'; and ten minutes after beginning his solitary journey from boulogne, he had sought distraction by beginning an article in the train. this was neither his first nor his last performance of that kind during the journey. he goes on to say that he had written twenty articles for the 'pall mall gazette' between the days of leaving england and of landing at bombay. 'with that and law i passed the time very pleasantly, and kept at bay all manner of thoughts in which there was no use in indulging myself.' to pour himself out in articles had become a kind of natural instinct. it had the charm, if i may say so, of a vice; it gave him the same pleasure that other men derive from dramdrinking. 'if i were in solitary confinement,' he says, 'i should have to scratch newspaper articles on the wall with a nail. my appetite, natural or acquired, has become insatiable.' when he had entered upon his duties at calcutta he felt that there were objections to this indulgence, and he succeeded in weaning himself after a time. for the first three or four months he still yielded to the temptation of turning out a few articles on the sly; but he telegraphs home to stop the appearance of some that had been written, breaks off another in the middle, and becomes absorbed in the official duties, which were of themselves quite sufficient to satiate any but an inordinate appetite for work. work, he says, is 'the very breath of my nostrils'; and he fell upon his official work greedily, not so much in the spirit of a conscientious labourer as with the rapture of a man who has at last obtained the chance of giving full sway to his strongest desires. the task before him surpassed his expectations. his functions, he says, are of more importance than those discharged by the lord chancellor in england. he compares himself to a schoolboy let loose into a pastrycook's shop with unlimited credit. the dainties provided, in the way of legislative business, are attractive in kind and boundless in quantity. the whole scene impresses him beyond expectation and calls out all his powers. one frequent subject of remark is the contrast between the work and the men who have to do it. the little body of englishmen who have to rule a country, comparable in size and population to the whole of europe without russia, seem to him to combine the attributes of a parish vestry and an imperial government. the whole civil service of india, he observes, has fewer members than there are boys at one or two of our public schools. imagine the eton and harrow boys grown up to middle age; suppose them to be scattered over france, spain, italy, germany, and england; governing the whole population, and yet knowing all about each other with the old schoolboy intimacy. they will combine an interest in the largest problems of government with an interest in disputes as petty as those about the rules of eton and harrow football. the society is, of course, very small and mainly composed, as every society must be composed, of commonplace materials. writing to miss thackeray during the outward voyage, he says that he will trespass upon her province and try to describe his companions. among them are a set of 'jolly military officers 'who play whist, smoke and chaff, and are always exploding over the smallest of jokes. they are not like the people with whom he has hitherto associated, but he will not depreciate them; for they know all kinds of things of which he is ignorant, and are made, as he perceives, just of the 'right kind of metal to take india and keep it.' in a letter to venables, written a few months later, he describes his position as a sort of 'benthamee lycurgus,' and sets forth the problem which he is trying to solve in an official document then in course of preparation: 'given corrupt natives, incompetent civilians, and a sprinkling of third-rate barristers, how to get perfect judges.' his estimate, indeed, of the merits of the indian services, considered collectively, was the highest possible. he speaks of them not merely with appreciation but with an enthusiasm such as might have been generated in other men by a life passed in india. in his last speech to the council he said (and it was no more than he said in private), 'i have seen much of the most energetic sections of what is commonly regarded as the most energetic nation in the world; but i never saw anything to equal the general level of zeal, intelligence, public spirit and vigour maintained by the public service of this country.' nothing could gratify him so much as the belief that he had in some degree lightened their labours by simplifying the rules under which they acted. still, taken individually, they were average englishmen, with rather less than the average opportunities for general intellectual culture; and, like every other small society, given to personal gossip, which was not very interesting to a grave and preoccupied outsider. i find him on one occasion reduced to making remarks upon a certain flirtation, which appears to have occupied the minds of the whole society at simla; but as the prophecy upon which he ventures turned out to be wrong, there is a presumption that he had not paid proper attention to the accessible evidence. he naturally, therefore, found little charm in the usual distractions from work. the climate, though it did not positively disagree with him, was not agreeable to him; and he found the material surroundings anything but comfortable. 'i have here found out what luxury is,' he said to a friend in calcutta on his first arrival; 'it is the way in which i used to live at home.' the best that could be done in india was by elaborate and expensive devices to make up a bad imitation of english comforts. 'as for the light amusements,' he says, they are for the most part 'a negative quantity.' when he is passing the winter by himself in calcutta, he finds evening parties a bore, does not care for the opera, and has nobody with whom to carry on a flirtation--the chief resource of many people. he has, therefore, nothing to do but to take his morning ride, work all day, and read his books in the evening. he is afraid that he will be considered unsociable or stingy, and is indeed aware of being regarded as an exceptional being: people ask him to 'very quiet' parties. he sticks to his 'workshop,' and there he finds ample employment. he was, indeed, too much in sympathy with sir g. cornewall lewis's doctrine that 'life would be tolerable but for its amusements' not to find a bright side to this mode of existence. a life of labour without relaxation was not far from his ideal. 'the immense amount of labour done here,' he says, 'strikes me more than anything else. the people work like horses, year in and year out, without rest or intermission, and they get hardened and toughened into a sort of defiant, eager temper which is very impressive.... i am continually reminded of the old saying that it is a society in which there are no old people and no young people. it certainly is the most masculine middle-aged, busy society that ever i saw, and, as you may imagine, i don't like to fall behind the rest in that particular.' he laboured, therefore, hard from the first--even harder as time went on; and came to feel the strongest sympathy with the energetic spirit of the body of which he was a member. he made some valued friends in india; chief among whom, i think, was sir john strachey, of whom he always speaks in the warmest terms, and whose friendship he especially valued in later years. another great pleasure was the renewed intercourse with the cunninghams, who were able, in one way or another, to be a good deal with him. but he had neither time nor inclination for much indulgence in social pleasures. it will be seen, therefore, that the indian part of my story must be almost exclusively a record of such events as can take place within the four walls of an office. i shall have nothing to say about tiger-shooting, though fitzjames was present, as a spectator, at one or two of lord mayo's hunting parties; nor of such social functions as the visit of the duke of edinburgh, though there, too, he was a looker-on; nor of indian scenery, though he describes the distant view of the himalayas from simla, by way of tantalising an old alpine scrambler. he visited one or two places of interest, and was especially impressed by his view of the shattered wall of delhi, and of the places where his second cousin, hodson, had seized the king and shot the princes. he wrote a description of these scenes to carlyle; but i do not think that he was especially strong in descriptive writing, and i may leave such matters to others. what i have to do is to give some account of his legislative work. i recognise my incompetence to speak as one possessing even a right to any opinion upon the subject. my brother, however, has left in various forms a very full account of his own performances,[ ] and my aim will be simply to condense his statements into the necessary shape for general readers. i shall succeed sufficiently for the purpose if, in what follows, i can present a quasi-autobiographical narrative. i will only add that i shall endeavour to observe one condition, which i know would have been scrupulously observed by him--i mean the condition of not attributing to him any credit which would properly belong to others. his work formed part of a process, carried on both by his predecessors and successors; and it is not always possible to distinguish his share from that of others.[ ] ii. official work in india a demand for codification was among the traditions of the utilitarians. bentham, born in , had preached to deaf ears during the eighteenth century; but in the first quarter of the nineteenth he had gathered a little band of disciples, the foremost of whom was james mill. the old philosopher had gradually obtained a hearing for his exhortations, echoed in various forms by a growing, confident, and energetic body, and his great watchword was 'codify.' he had found hearers in foreign countries, especially in russia, spain, and various american states; but his own countrymen had been among the last to listen. gradually, however, as the passion and prejudice of the war period passed away and the movement which culminated in the reform bill of gathered strength, it became apparent that the stubborn conservatism, even of the great tacit corporation of lawyers, would have to yield. the supremacy of eldon was beginning to be shaken. sir robert peel began to reform the criminal law about , taking up the work upon which bentham's friend and disciple, romilly, had laboured for years with infinitesimal results. commissions were appointed to work upon legal reforms. with parliamentary reform an era of rapid and far-reaching changes set in, though bentham died on the eve of entering the land of promise. when, therefore, the charter of the last india company was renewed in , it was natural that some place should be found for codification. james mill, upon whom bentham's mantle had fallen, held a leading position at the india house, and his evidence before a parliamentary committee had an important influence in determining the outlines of the new system. one of the four members of the council of the governor-general was henceforth to be appointed from persons not servants of the company. he was to attend only at meetings for framing laws and regulations. macaulay, the first holder of this office, went to india in and prepared the penal code. one of his assistants, c. h. cameron, was an ardent benthamite, and the code, in any case, was an accomplishment of benthamite aspirations. this code, says fitzjames, 'seems to me to be the most remarkable, and bids fair to be the most lasting monument of its principal author. literary fashions may change, but the penal code has triumphantly stood the ordeal of twenty-one years' experience; and, though composed by a man who had scarcely held a brief, has been more successful than any other statute of comparable dimensions.'[ ] the code, however, slept for many years in a pigeon-hole--a fact which fitzjames considers[ ] to be a most striking proof of the reluctance of the english government to interfere in any way with native institutions. we rubbed on, it seems, with a sort of compromise between english and mahommedan criminal law until , when the code, after a careful revision by sir barnes peacock, was finally passed into law. that, says fitzjames, was a singular piece of good fortune. 'an ideal code ought to be drawn by a bacon and settled by a coke'; it should combine the highest qualities of literary skill and technical knowledge. thus drawn, the code became the first specimen of an 'entirely new and original method of legislative expression.' it served as a model for all the later indian codes. its method is first to state the 'leading idea' in the most pointed and explicit form; then to give a definite explanation of any terms which admit of a possible doubt; then to give equally definite exceptions; and, finally, to illustrate the whole by applying it to a number of concrete cases.[ ] in macaulay's hands the legal document, freed from the endless verbiage, circumlocution and technicality of english statutes, became a model of logical precision, and was even entertaining as a piece of literature. the passage of this code was part of a systematic process of codification. an indian law commission, sitting in england, had been appointed in to carry on the work of consolidating the law. the suppression of the mutiny and the dissolution of the company were naturally followed by various administrative and legislative reforms. a code of civil procedure was passed in , and a code of criminal procedure, as a necessary supplement to the penal code, in . in maine went out as legislative member of the indian council, and carried on the work of codification in combination with a new law commission, appointed in . the commission ultimately fell out with the indian government, and finally resigned in . they seem to have been of opinion that there was undue delay in passing the bills which they prepared. meanwhile, fitzjames took up various measures which had been left incomplete, and carried them to completion. before specifying them so far as will be desirable, i must say something of the machinery by which they were converted into law. this, as will be seen, greatly impressed fitzjames by its total dissimilarity to the process of legislation under our own parliamentary system. the legislative council consisted, under an act passed in , of the viceroy, the commander-in-chief, the governor of the province in which the council sits, of five ordinary members, and of additional members--not less than six and not more than twelve in number--half of whom must be non-official. the maximum number possible would therefore be twenty. the viceroy, the commander-in-chief, and the five ordinary members conducted the whole executive government of the country. the 'legislative department' consisted of a 'secretary to the council of the viceroy, for the purpose of making laws and regulations.' the secretary during fitzjames's tenure of office was mr. whitley stokes, who had already served under maine. during mr. stokes's absence on leave for the last year of fitzjames's service, his place was taken by henry cunningham. the member of council and the secretary drew almost all the bills required. it must be noticed that proposals for legislation were not initiated by the department itself. this principle, says fitzjames, 'was scrupulously observed both by sir henry maine and myself.' they did not originate a single measure, except those which repealed, consolidated, and re-enacted existing laws. when a bill had been drawn and introduced into council, it was circulated to be criticised by the local governments and by district officers, or by persons whose interests might be affected. a special committee was appointed to go through the act, clause by clause, and consider the suggestions and criticisms which had been received. in the case of one act, it is mentioned that the materials thus collected formed a volume of closely printed pages of minute criticism upon every section of the bill. the committee made such changes as appeared desirable in view of these comments, and the bill, after being in some cases reprinted, published, and circulated, was again brought before the council. a discussion then took place and amendments might be proposed. when these had been accepted or rejected, the bill was passed and became law upon receiving the assent of the viceroy, though it might still be disallowed by the secretary of state in council. a code, or even a measure which is to form part of a code, should be a work of art--unequivocal in language, consistent in its logic, and luminous in its arrangement. like other works of art, therefore, it must be essentially the product of a single mind. it is as impossible, as fitzjames often repeats, for a number of people to make a code as for a number of artists to paint a picture. the legal artist requires, indeed, to receive information from numerous sources, and to be carefully and minutely criticised at every point by other experts and by the persons whose interests are affected. but the whole can only be fused into the necessary unity by passing through a single understanding. these conditions were sufficiently secured by the preliminary processes just described. nor was there any risk that a measure should lose its symmetry in the process of passing through the council. the council was composed of men capable, on the one hand, of judging of the expediency of the general policy involved, and willing, on the other hand, to trust for details to the official in charge of the measure, without any desire for captious interference with details. it consisted largely of men, each of whom had important duties to discharge, and was anxious to facilitate the discharge of duties by his colleagues. it was emphatically a body which meant business, and had no temptation to practise the art of 'not doing it.' there is a quaint contrast, therefore, between the reports of the debates in council and those which fill the multitudinous pages of hansard. the speeches, instead of being wordy appeals to constituents, are (so far as one can judge from the condensed official reports) brief logical expositions of the leading principles involved, packing the essential arguments into the briefest possible space. when a body such as the british parliament undertakes to legislate, it has certain weaknesses too familiar to require much exposition. if a measure is not adapted to catch the popular ear, it is lucky, however great may be its real importance, in obtaining a hearing at all. it may be thrust aside at any moment by some of the storms of excitement characteristic of a large body agitated by endless party quarrels. many of the legislators are far less anxious to get business done than to get the doing of business. everyone who is crotchety, or enthusiastic, or anxious for notoriety, or desirous to serve a party or please a constituency, may set a hand to the work. a man, from the best of motives, may carry some impulsive suggestion. the measure may be tortured and worried out of shape by any number of alterations, moved without clear apprehension of the effect upon the whole. trifling details will receive an excessive amount of elaboration, and the most important proposals be passed over with precipitation, because the controversy becomes too heated and too complicated with personal interests to be decided upon reasonable grounds. the two evils of procrastination and haste may thus be ingeniously combined, and the result may be a labyrinth of legislative enactments through which only prolonged technical experience can find its way. i need not inquire what compensations there may be in the english system, or how far its evils might be avoided by judicious arrangements. but it is sufficiently clear what impression will be made upon anyone who tests a piece of legislative machinery by its power of turning out finished and coherent work which will satisfy legal experts rather than reflect the wishes of ignorant masses. i must now try to indicate more precisely the nature of the task in which fitzjames had to take a share. he gives a preliminary sketch in one of his first speeches.[ ] the law of british india was composed of different elements, corresponding to the process by which the trading company had developed into a sovereign power and extended its sway over an empire. there were, in the first place, the 'regulations' made in the three presidencies, bengal, madras, and bombay, before the formation of the legislative council in . then there were the acts of the legislative council which had since legislated for the whole of british india; and the acts of the subordinate legislatures which had been formed in the two presidencies in . besides these there were executive orders passed by the governor-general in council for the 'non-regulation' provinces (the north-western provinces, the punjab, oudh, the central provinces, and burmah). these had more or less introduced the same laws into the regions successively annexed, or such an approximation to those laws as was practicable, and dictated according to an accustomed formula by 'justice, equity, and good conscience.' certain doubts existed as to the precise legal character of these orders. their validity had been confirmed by the act of , but for the future all legislation was to be carried on by the councils. the laws were less numerous and complex than might be inferred from this enumeration. some were temporary in their nature and others repealed previous legislation. the first thing to be done was to ascertain what laws were actually operative; to repeal the useless and obsolete; and confirm others which, though useful, might be of doubtful validity. it would then become possible to consolidate and codify; so that for every subject there might be a single enactment, and for every province a single body of laws. much had been already accomplished in this direction under lord lawrence when maine was the legal member of council; and preparations had been made for carrying the process further. the measures in which fitzjames was more or less concerned were made necessary by these conditions. the old bengal regulations, made from to , are said to have been 'eminently practical and useful.' but they were made from time to time with a view to particular cases; and their language presupposed familiarity with a variety of facts, as to the position and mutual relations of the different members of the service, and so forth, which were constantly changing as the company developed, acquired new functions, and redistributed the duties of its subordinates. such a process naturally left room for gaps in the system which might reveal themselves with awkward results at critical moments. thus it turned out in the course of investigations made by the legislative department that nearly every criminal trial which had taken place in bengal and the north-western provinces since had been irregular. the result was that 'people had gone on being hung, transported, and imprisoned illegally for a period of probably nearly forty years.' no substantial injury had resulted, but as legal proceedings multiplied it was possible that awkward questions might be raised. an act was therefore passed in a day (may , ) sanctioning the system which had actually grown up, and confirming the previous acts. another illustration of the intricacy of the existing system was given by the law as to the civil courts in bengal. to discover what was the constitution of these courts you would have, says fitzjames (feb. , ) to begin by reading regulations iii. and iv. of , and to find out that, though most of them had been repealed, little bits of each remained in force. you would then have to note that, although these bits applied only to a certain small district, they had been extended in to certain other specified places, and in to the district ceded by the nawab nazim. what that district was might be ascertained from historical records. continuing such inquiries, you might discover, after consulting thirteen acts and regulations, what was the actual state of things. people, of course, really learnt such points by practice and conversation, though their knowledge would probably be in a nebulous condition. the whole system was put upon a clear footing in an act of thirty-eight sections, prepared by mr. cockerell, which was passed on february , . in these cases i imagine that the effect of the legislation was mainly to clear up the existing order and substitute a definite accessible law for a vague rule of thumb. elsewhere more serious problems were involved. upon the annexation of the punjab in it was necessary to establish at once a vigorous and cheap system of government. lord lawrence, with his brother henry and mr. mansel, were formed into a board of administration, and entrusted with dictatorial power. they were instructed to adopt as nearly as possible the system of law which has existed in the north-western provinces. that system, however, was vague and cumbrous, and it was impracticable to introduce it into the new province, which required far more rough and ready methods. lord lawrence and his colleagues proceeded therefore to draw up regulations. though these were necessarily crude and imperfect in the eyes of a thorough lawyer, they made it possible to introduce settled order and government, and were the first approach to codes in india. there remained, however, serious differences of opinion as to the degree of legal authority to which they were entitled. two of these codes were of great importance. in sir richard temple had prepared a handbook, under the direction of lord lawrence, which came to be known as the 'punjab civil code.' it was a lucid statement, although made by one who was not a specially trained lawyer, of the law supposed to exist in the punjab, with expositions of parts of the hindoo and mohammedan law. the question however, had never been finally settled whether it was merely a text-book or had acquired the force of law by the use made of it and by incidental references in official despatches. it included, for example, a kind of bankruptcy law, under which large amounts of property had been distributed; although, according to some opinions, the whole process was illegal. conflicting views were held by high authorities. 'as many as six or seven degrees of inspiration had been attributed to different parts of the code,' said fitzjames (march , ), 'as to the relation in which they stood to the rest.' in short, a book originally intended as a guide to administrators of the law had come to be a 'sort of semi-inspired volume,' with varying degrees of 'infallibility.' moreover, as it led to much litigation and many discussions, it had swelled from a small volume into 'one of those enormous receptacles of notes, comments, sections of acts, and general observations which pass in england under the name of legal text-books.' (september , .) in order to clear up the confusion, mr. d. g. barkley had been directed by the lieutenant-governor of the punjab to prepare a volume containing all the regulations which were supposed to have actually the force of law. many of these were only accessible in official archives. this volume filled closely printed pages, besides various schedules. when carefully examined by fitzjames this was reduced to an act of fifty-eight sections, and the question as to authority finally set at rest. a still more important part of the punjab administration dealt with the land revenue. this, of course, touches the most vital part of the whole system of british government. a famous 'regulation, vii. of ,' had laid down the general principles of land-revenue law. but it was in itself ambiguous, and there were great doubts as to whether it extended to the punjab, or whether the administrators of the punjab had full power to lay down such rules as they pleased, subject only to the direction to take the regulation for a model as far as applicable. different views were taken by the courts of law and by the governors; some opinions would tend to show that the whole series of administrative acts had been illegal, and out of this difficulty had arisen an acrimonious controversy in upon punjab tenancy. meanwhile various 'instructions' had been issued by the executive, and two books, written by mr. thomason, gave directions to 'settlement officers' and 'collectors.' these, says fitzjames, were 'almost if not quite the best law-books that have ever come under my notice.' they were, however, written from an administrative, not from a legal point of view. in order to ascertain the actual state of things mr. robert cust was instructed to draw up a revenue-code, and forwarded his draft to the legislative department in . the law, as mr. cust stated in this document, was 'in a state of lamentable and, to those not trained to the study, unintelligible confusion.' his draft contained sections, filling quarto pages of small type. it was swelled, however, by a large quantity of detail, dealing with matters which might be left to the discretion of executive officers. the draft was carefully considered by a committee, including the most experienced officials, and in consultation with the actual revenue authorities in the punjab. a measure of moderate dimensions was framed in accordance with their views and passed on october , . one of the critics of the bill observed that it had been thus reduced to a 'set of affecting commonplaces.' fitzjames replies that, in point of fact, the bill was meant precisely to lay down general principles, leaving details to be settled by the local authorities. one proposal made by him which, as sir r. temple observed, showed his 'breadth of view and root and branch grasp of the subject,' indicates the importance of the matter. substantially it was to make the record of rights, established for the purposes of the revenue, a conclusive evidence (under certain precautions) of the titles of the various persons interested in the land. this was modified on the ground that it was not suited to the tastes of the natives; who, it was said, rather preferred that matters should be left 'at a loose end,' instead of being definitely wound up once for all. this act, together with the act previously mentioned, put an end to 'one of the strangest pieces of intricacy and confusion to be found in indian law.'[ ] another enactment curiously illustrates some practical results of the undefined degree of authority of the laws in the punjab. four hundred years ago--so runs a possibly mythical legend--a certain man was ploughing in a field. the wife of a rich banker was bathing not far off, and laid her necklace of pearls on the bank. a crow took it up and dropped it in the ploughman's field. he presented it to his wife, and proceeded to reason upon the phenomenon. the fowls of the air, he reflected, neither ploughed nor sowed, but they managed to pick up valuables. why should he not show a similar trust in providence? he resolved to set up as a freebooter, made proselytes, and finally became the ancestor of a clan. his tribe were moral and decent people at home; they had their religious rites, initiated their children solemnly, and divided their earnings on system. after setting aside - / per cent. for the gods, per cent. was divided between the chief and the thief, while the remainder went to the tribe at large. their morality, however, was conterminous with the limits of the clan. they considered themselves to be in hobbes's 'state of nature,' with regard to other men. they wandered far and wide through india, and made enough to live in greater comfort than could be got out of legitimate occupations. they were only one among other more important and dangerous tribes of criminals, who adopted the same judicious principle of carrying on their operations at a distance from their homes. the punjab government had dealt with these tribes by registering them, compelling them to live within certain limits, and settling them upon waste lands. it had been discovered, however, that these regulations were beyond the powers of the executive. the system had to be abandoned and the tribes promptly returned to their old practices. when members of another well-known criminal tribe were arrested on the eve of one of their operations, they were set at liberty by a judicial decision. the proof, it appears, ought to have conformed to the precedent set by certain trials of fenians in england. a measure was therefore introduced giving power to restore the system which had been previously successful; and sanctioning similar measures in regard to a more atrocious set of criminals, certain eunuchs who made a system of kidnapping children for the worst purposes. it was passed october , . the case illustrates the most obvious difficulties of our position in india. i suppose that the point of view of thugs and of these respectable robbers seems perfectly obvious and natural to them; but the average englishman cannot adopt it without a considerable mental effort. in such cases, however, we might at least reckon upon the support of those who suffered from predatory tribes. but there was another department of legislation in which we had to come into conflict with the legal and religious ideas of the great mass of the population. the british rulers of india had been, with sufficient reason, exceedingly cautious in such matters. their power might crumble to pieces, if it were once believed that we intended to assail directly the great religions of the country, and in india law, custom, and religion are only different aspects of the same thing. in certain cases we had at last resolved to suppress practices which offended the european code of morals. under the bengal regulations, the practice of burning widows had been forbidden. another series of acts began by the passage of an act in which provided that no one should suffer any legal forfeiture of rights for having ceased to belong to any religious community. this act was passed in face of vehement opposition and petitions signed by , natives in and around calcutta. it practically pledged us to maintain freedom of conscience in matters of religion. it was followed by other measures involving the same principle. in , the re-marriage of hindoo widows was legalised, and in , native converts to christianity were enabled to obtain a divorce from wives or husbands who abandoned them in consequence of their religious change. another act of , drawn by the indian law commission, regulated the law as to succession to property and the testamentary powers of persons who were not members of any of the native religious communities, and thus recognised that such people had a legitimate legal status. from another application of the same principles arose a proposal in regard to which fitzjames had to take a conspicuous part. it formed the subject of a very warm debate in the council, the only debate, indeed, which faintly recalls english parliamentary discussions. fitzjames, in particular, made two speeches which suggest that he might have been an effective party-leader, and are, in various ways, so characteristic that i must notice them at some length. the sect of brahmos, founded by ram mohun roy, was one result of the influence of european ideas on india. it had come to be the most important movement of the kind. it roughly corresponds, i imagine, to english unitarianism, being an attempt to found a pure theistic religion without the old dogmatic system. like almost all religious movements, it might be considered either as an innovation or as an attempt to return to a primitive creed by throwing off the corrupt accretions. the sect, like others, had split into two bodies, the conservative brahmos, who wanted to put new wine into old bottles, and the progressive brahmos, who desired new bottles as well as new wine. both of them disapproved in different degrees of the hindoo ceremonials. the question had arisen whether they could form legal marriages, and the doubts had been rather increased than diminished by an opinion obtained by the progressive brahmos from the advocate-general, mr. cowie. thereupon they applied to government. maine, who was then ( ) in office, came to the conclusion that they had had a real grievance. their creed, briefly, would disqualify them from marrying, whereas we were committed to the principle that varieties of creed should entail no civil disqualifications. maine accordingly prepared a bill to remove the injustice. he proposed to legalise the marriage of all persons (not christian) who objected to conform to the rites of the various religions of the country. the knot would be cut by introducing civil marriage into india generally for all who preferred it. this proposal, however, met with general disapproval when the draft was circulated among the local authorities. the ground of objection was that it would introduce too great a change into native customs. it would enable a man to 'play fast and loose' with his religion; to cease, for example, to be a hindoo for the purpose of marrying, and to be a hindoo again when he had married. the government admitted that this objection was conclusive. when fitzjames became member of council, the matter was still under discussion, and it became his duty to prepare a bill, which he introduced to the council in march . this measure avoided the difficulty by providing a form of marriage for the brahmos alone. to this, however, he found to his surprise that the conservative brahmos objected. the essential difficulty was that of every 'denominational' system. the bill would give a certain legal status to a particular sect. we should then be bound to provide similar measures for any new sects that might arise and for marriages between adherents of different creeds. there would have to be a 'jungle of marriage acts.' and besides this there would be the difficulty of defining by law what a brahmo precisely was--whether the progressives or the conservatives were the real brahmos, and so forth. finally, fitzjames resolved to bring in an act resembling maine's, but with this difference, that anyone who took advantage of it must declare that he (or she) was neither a hindoo, nor a mohammedan, nor a parsee, nor a sikh, nor a jaina, nor a buddhist, nor a christian, nor a jew.[ ] this measure would be applicable to any persons whatever who might hereafter abandon their traditional religion, but it would not enable anyone to break the laws of a religion to which he still professed to belong. fitzjames explained his views very fully upon introducing the measure on january , . the debate was then adjourned, and upon march other members of the council made various criticisms to which he again replied at some length. these two speeches give the fullest statement of his views upon a very important question. they deal in part with some purely legal questions, but i shall only try to give the pith of the views of policy which they embody. i may briefly premise that the ground taken by his opponents was substantially the danger of shocking native prejudices. the possibility that the measure would enable rash young men to marry dancing-girls out of hand was also noticed, but, i fancy, by way of logical makeweight. it was admitted that the brahmos had a claim, but it was strongly urged that it would be enough if, in accordance with the former proposal, an act were passed dealing with them alone. one member of the council, i notice, complains that the demand is associated with talk about 'nationality,' 'fraternity,' and 'equality'--a kind of talk for which fitzjames had remarkably little sympathy. it is of the more importance to point out what were the principles which he did admit. his main contention was simple. maine, he said, was absolutely right in deciding that, where an injustice was proved to exist, we should not shrink from applying a remedy. 'i think that one distinct act of injustice, one clear instance of unfaithfulness to the principles upon which our government of india depends, one positive proof that we either cannot or will not do justice to all classes, races, creeds or no-creeds, in british india would in the long run shake our power more deeply than even financial or military disaster. i believe that the real foundation upon which the british empire in this country rests is neither military force alone, as some persons cynically assert' (though such power is no doubt an indispensable condition of our rule), 'nor even that affectionate sympathy with the native population, on which, according to a more amiable, though not, i think, a truer view of the matter, some think our rule ought to rest--though it is hardly possible to overrate the value of such sympathy, where it can by any means be obtained. i believe that the real foundation of our power will be found to be an inflexible adherence to broad principles of justice common to all persons in all countries and all ages, and enforced with unflinching firmness in favour of, or against, everyone who claims their benefit or who presumes to violate them, no matter who he may be. to govern impartially upon these broad principles is to govern justly, and i believe that not only justice itself, but the honest attempt to be just, is understood and acknowledged in every part of the world alike.' in the next place the principle of religious equality, 'properly understood, is just as much one of these principles as the principle of suppressing war, famine, and crime.' properly understood it means that all sects are to be encouraged and, if necessary, are to be compelled to live in peace with each other; and not to injure those who change their religion. this is the principle, moreover, which we have practically adopted, and which is indeed necessary under the circumstances. the native marriage law is 'personal,' not territorial. it depends upon a man's religion, not upon the place of his abode. hence you must choose between forbidding a man to change his religion and permitting him to change his law. but to forbid conversion would be obviously impossible, and we in fact allow christian converts to change their legal status. why is not a similar liberty to be granted to others who have abandoned their religion? because christianity is true and all other religions false? that would be the only relevant answer, and many people would really like to give it; but it is refuted by stating it. we cannot attack the hindoo or mohammedan religions. if, therefore, we took this ground, we should simply have a conspiracy of four or five dominant sects, each denouncing the others as false, but all agreeing to worry and oppress all outsiders. such a position is impossible for us. the real objection to the bill was simply that it recognised the fact that many persons had abandoned their religion; and also recognises the fact that they had a right to abandon it. here, then, is one of the cases in which the argument from native opinion must be faced. 'it is a grave thing to legislate in opposition to the wishes of any section of the native community; but it is also a grave, a very grave thing for the government of india deliberately to abstain from doing that which it has declared to be just and right.' if you help the brahmos alone, what will you say to the 'radical league,' which repudiates all religious belief? when they ask to have their marriages legalised, will you reply, 'you are a small body, and therefore we will do you an injustice'? this is one of the ultimate points which we are forced to decide upon our own convictions. religious liberty and equality can be no more reconciled with hindoo and mohammedan orthodoxy than with some forms of catholicism. but it is impossible to say that we will not do that which we admit to be urgent because we are afraid of orthodox mohammedans and hindoos. and here is the answer to one member who made light of telling a converted young man of enlightened mind that, unless he saw his way to being a christian, he might be ordered to conform to the customs of his forefathers. it was better that he should make the sacrifice, than that the minds of the masses should be disquieted. was there, he asked, any real hardship in that? yes, replies fitzjames, there would be the greatest and most cruel injustice. 'it would be a disgrace to the english name and nation.' a young man goes to england and wins a place in the civil service. he learns from an english education to disbelieve in his old creeds; and when he goes back you tell him that he shall not be capable of marriage unless he will either falsely pretend to be a christian, or consent to have his tongue burned with a red-hot iron and drink cow's urine in order to regain his caste. one of the native correspondents had complained rather naïvely that the law would be used to enable a man to escape these 'humiliating expiations.' would they not be far more humiliating for english legislation? what did you mean, it would be asked, by your former profession that you would enforce religious equality? what of the acts passed to secure the immunity of all converts from legal penalties? were they all hypocritical? i would rather submit to the displeasure of orthodox hindoos, says fitzjames, than have to submit to such taunts as that. 'the master objection against the bill, of which the rest are but shadows, and which unites in opposition to it men who mutually denounce each other's creeds, and men who despise those who care enough about religion to be unwilling to call that sacred which they hold to be a lie, is that it will encourage unbelief.' that may be a fair argument from hindoos and mohammedans; but it is strange in the mouths of those who maintain missionary societies and support schools and colleges--english education 'leads straight away from all points of native orthodoxy.' 'how can we sow the seed and refuse to recognise the crop?' when we have shut up our schools, renounced our famous legislation, permitted infanticide and _suttee_, we may get credit for sincerity in the objection; 'till then people will say that what we really fear is not the spread of unbelief, but the hostility of believers.' for such hypocrisy fitzjames could never feel anything but a righteous contempt. i must now turn to the important legislative measures which were more essentially a part of the general system of codification. a code of civil procedure had been passed in , and codes of criminal law and criminal procedure in and . the indian law commission had also prepared laws upon contract and evidence, which were still under consideration; fitzjames had to carry the process one stage further. in regard to the famous penal code, of which he always speaks with enthusiasm, his action was confined to filling up a few omissions. the case of a convict in the andaman islands, for example, who had made a desperate attempt to murder a gaoler, and could receive no further punishment because he was already sentenced to imprisonment for life, the maximum penalty for attempts to murder, suggested a flaw. such offences were henceforth to be punishable by death. the only point of general interest was the case of seditious libels. a clause, prepared for the original bill, had been omitted by an unaccountable accident. maine had already been in correspondence with sir barnes peacock upon this subject in . when, however, in the summer of , fitzjames proposed the insertion of a clause, it was supposed that he had hastily prepared it in consequence of certain reported disturbances in the previous spring. he was, therefore, taunted with having been a member of the 'fourth estate,' and now desiring to fetter the liberty of the press. he therefore confessed, and it must be admitted that it required less courage in him than it had required in his grandfather to confess, to the sin of having written for the newspapers. in point of fact, however, as he pointed out, the proposed section, which was from the original draft of the case as framed by the commission, was less severe than the english law. briefly, a man was to be punishable for writings of which it was the obvious intention to produce rebellion. a journalist might freely abuse officials and express disapproval of a particular measure, such, for example, as a tax. the disapproval, again, might tend to general disaffection. but unless there were a direct intention to stimulate resistance to the law, he would not be guilty. fitzjames thought that to invoke the phrase 'liberty of the press' in order to permit direct provocatives to crime, whether against the public or against individuals, was a grave misapplication of popular phrases. upon another closely connected subject, fitzjames, if he originated little, spent a very great deal of labour. the penal code had been necessarily followed by a code of criminal procedure, which defined the whole system of the english administration of justice in india.[ ] courts of justice had been gradually introduced when the british establishments were mere factories, and had gradually grown up, as our power increased and the borders of the empire widened, into a most elaborate and complex organisation. although, in a general way, the english institutions had served as a model, it had diverged very far from its originals. the different classes of indian magistrates are carefully graded; there is a minute system for subordinating the courts to each other; they are superintended in every detail of their procedure by the high courts; and, in brief, the 'indian civilians are, for the discharge of all their judicial and other duties, in the position of an elaborately disciplined and organised half-military body.' such words would obviously be inapplicable to the english magistrate. while, therefore, the penal code was in the main a version of english law, the code of criminal procedure defined the various relations and processes of an official body entirely unlike anything existing in england. the code originally passed in had been amended by an act of , and fitzjames observed (june , ) that he proposed a reform which was 'almost typographical.' the two laws might, as the law commission had suggested, be combined in one by slightly altering their arrangement; though the opportunity might be taken of introducing 'a few minor alterations.' on december following, however, he announces that he has now examined the code and had never read 'a more confused or worse-drawn law' in his life. he proceeds to show by various illustrations that the subjects treated had been mixed up in such a way as to make the whole unintelligible. he had been obliged to put off the attempt to understand it till he could get information from outside. he had, however, prepared a draft of the bill, and a committee was appointed to consider it. the measure did not finally come before the council until april , . he then observes that he has not had the presumption to introduce 'modifications of his own devising into a system gradually constructed by the minute care and practical experience of many successive generations of indian statesmen.' he has regarded himself 'less as the author of the bill than as the draftsman and secretary of the committee by whom all the important working details have been settled.' he has been in the position of the editor of a law-book, arranging as well as he could, but not introducing any new matter. to attempt any sudden changes in so complex a machinery, which already strains so severely the energies of the small number of officials employed in working it, would be inevitably to throw the whole out of gear. this committee, he says,[ ] which included men of the widest indian experience, such as sir g. campbell, sir r. temple, and sir john strachey, met five days in the week and usually sat five hours a day, and the process continued for 'some months.' they discussed both substance and style of every section, and examined all the cases decided by the courts which bore upon the previous code. these discussions were all carried on by conversations round a table in a private room. 'the wonderfully minute and exact acquaintance with every detail of the system' possessed by the civilians 'made an ineffaceable impression' upon his mind. they knew, 'to a nicety, the history, the origin and object of every provision in the code.' the discussions were consequently an 'education not only in the history of british india but in the history of laws and institutions in general. i do not believe,' he says, 'that one act of parliament in fifty is considered with anything approaching to the care, or discussed with anything approaching to the mastery of the subject with which indian acts are considered and discussed.' when the committee had reported, the code was passed into law 'after some little unimportant speaking at a public meeting of the council,' (which turned, i may say, principally upon the question of the policy of allowing native members of the service to sit in judgment upon europeans). 'this was possible, because in india there are neither political parties nor popular constituencies to be considered, and hardly any reputation is to be got by making speeches. moreover, everyone is a man under authority, having others under him.' a condensed account of the code and the institutions which it regulates will be found in fitzjames's 'history of the criminal law,' from which i quote these words: 'if it be asked,' he says, 'how the system works in practice, i can only say that it enables a handful of unsympathetic foreigners (i am far from thinking that if they were more sympathetic they would be more efficient) to rule justly and firmly about , , persons of many races, languages, and creeds, and, in many parts of the country, bold, sturdy, and warlike. in one of his many curious conversations with native scholars, mr. monier williams was addressed by one of them as follows: "the sahibs do not understand us or like us; but they try to be just and do not fear the face of man." i believe this to be strictly true.' 'the penal code, the code of criminal procedure, and the institutions which they regulate, are somewhat grim presents for one people to make to another, and are little calculated to excite affection; but they are eminently well calculated to protect peaceable men and to beat down wrongdoers, to extort respect and to enforce obedience.' the code was re-enacted in under the care of mr. whitley stokes. it was then extended to the high courts, which had been previously omitted, and alterations were made both in arrangement and in substance. of these alterations fitzjames says that he does not consider them to be improvements; but upon that point i am not competent to form any opinion. closely connected with the subject of procedure was another which was treated in his most original and valuable piece of legislation. the indian law commission had in sent out the draft of an 'evidence act,' which was circulated among the local governments. it was unanimously disapproved as unsuitable to the country. it presupposed a knowledge of english law, and would not relieve indian officials from the necessity of consulting the elaborate text-books through which that law was diffused. fitzjames, therefore, prepared a new draft, which was considered by a committee in the winter of - , and after their report at the end of march was circulated as usual. it was finally passed on march , , and a full account of the principles is given in his speeches of march , , and march , . i have already spoken of his treatment of the law of evidence in the 'view of the criminal law.' i will here point out the special importance of the subject under the conditions of indian legislation. in the first place, some legislation was necessary. an evidence act, already in existence, embodied fragments of english law. it would still be in force, inasmuch as english officials were directed, according to the sacred formula, to decide by 'equality, justice, and good conscience.' these attractive words meant practically 'an imperfect understanding of an imperfect recollection of not very recent editions of english text-books.' something might be said for shrewd mother-wit, and something for a thorough legal system. but nothing could be said for a 'half and half system,' in which a vast body of half-understood law, without arrangement and of uncertain authority, 'maintains a dead-alive existence.' we had therefore to choose between a definite code, intelligible to students, who would give the necessary attention, and no code at all. the evidence bill, said one eminent colleague, ought to consist of one clause: 'all rules of evidence are hereby abolished.' against this attractive proposal fitzjames argues substantially as he had argued in the 'view.' rules of some sort have always been found necessary. daniel's feeble 'cross-examination of the elders in the case of susannah' illustrates the wonder with which people once regarded methods of testing evidence now familiar to every constable. in later periods all manner of more or less arbitrary rules had been introduced into simple codes, prescribing, for example, the number of witnesses required to prove a given fact. the english system, although the product of special historical developments, had resulted in laying down substantially sound and useful rules. they do in fact keep inquiries within reasonable limits, which, in courts not guarded by such rules, are apt to ramble step by step into remoter or less relevant topics, and often end by accumulating unmanageable masses of useless and irritating scandals. moreover, they would protect and guide the judges, who, unless you prohibited all rules whatever, would infallibly be guided by the practice of english courts. to abolish the rules of evidence would be simply to leave everything 'to mere personal discretion.' moreover, the rules have 'a real though a negative' value as providing solid tests of truth. the best shoes will not enable a man to walk nor the best glasses to see; and the best rules of evidence will not enable a man to reason any better upon the facts before him. it is a partial perception of this which has caused the common distrust of them. but they do supply 'negative' tests, warranted by long experience, upon two great points. the first is that when you have to make an inference from facts, the facts should be closely connected in specified ways with the fact to be decided. the second is, that whatever fact has to be proved, should be proved by the best evidence, by the actual document alleged, or by the man who has seen with his own eyes or heard with his own ears the things or the words asserted to have occurred. if, however, these rules are substantially the expressions of sound common sense, worked out by practical sagacity, it is equally true that 'no body of rules upon an important subject were ever expressed so loosely, in such an intricate manner, or at such intolerable length.' the fact is that the intricate and often absurd theory by which they are connected came after the 'eminently sagacious practice' which the theory was intended to justify. english lawyers, by long practice in the courts, acquire an instinctive knowledge of what is or is not evidence, although they may have hardly given a thought to the theory. the english text-books, which are meant for practical purposes, are generally 'collections of enormous masses of isolated rulings generally relating to some very minute point.' they are arranged with reference to 'vague catchwords,' familiar to lawyers, rather than to the principles really invoked. one of the favourite formulæ, for example, tells us, 'hearsay is no evidence.' yet 'hearsay' and 'evidence' are both words which have been used in different senses ('evidence,' for example, either means a fact or the statement that the fact exists), and the absence of any clear definitions has obscured the whole subject. now as indian officials have to manage very difficult investigations, with no opportunity for acquiring the lawyer's instinct, and without the safeguard afforded in england by a trained bar, thoroughly imbued with the traditions of the art, they were in special need of a clear, intelligible code. by 'boiling down' the english law, and straining off all the mere technical verbiage, it would be possible to extract a few common-sense principles and to give their applications to practice in logical subordination and coherence. that which seems to be a labyrinth in which it is hopeless to find the way until experience has generated familiarity with a thousand minute indications at the various turning points, may be transformed, when the clue is once given, into a plan of geometrical neatness and simplicity. this was what fitzjames endeavoured to do for the indian law of evidence. when the draft was circulated the utility of the work was generally admitted in the reports returned, but some hostile criticisms were also made. one gentleman, who had himself written upon the subject, remarked that it had been apparently constructed by going through 'taylor on evidence,' and arbitrarily selecting certain portions. to this fitzjames replied that every principle, applicable to india, contained in the royal octavo pages of taylor, was contained in the sections of his bill, and that it also disposed fully of every subject treated in his critic's book. he accounts for the criticism, however, by pointing out that the limits of the subject had been very ill defined, and that many extraneous matters belonging properly, for example, to the law of procedure, had been introduced. a code which diverges from the general principles into the particular kind of evidence required in various cases, might spread into every department of law. fitzjames, however, partly met his critic by admitting certain additions of too technical a nature to be mentioned. i may observe that one source of the intricacy of the english law was avoided. in england, at that time, the erroneous admission or rejection of a single piece of evidence might have made it necessary to try the whole tichborne case over again. in india this had never been the case, and it was provided that such errors should not be ground for a new trial unless it were proved that they had caused a substantial failure of justice. i will only add that fitzjames, as before, endeavoured in an 'introduction' to connect his legal theory with the logical doctrines of mill. he was criticised in a pamphlet by mr. g. c. whitworth which he admits to be judicious, and afterwards corrected his definitions accordingly.[ ] he did not think his principle wrong, but considered the form to be inconvenient for practical application. upon this, however, i need not here dwell.[ ] two other important measures of codification were passed during fitzjames's tenure of office. the 'limitation of suits' act, passed march , , was, as he stated, entirely due to mr. whitley stokes. fitzjames expressed his high admiration for it in a speech in which he takes occasion to utter some characteristic denunciations of the subtleties of english law, connected with the subject of this act. did human memory run to the year , when richard i. set out on the third crusade, or to , when he returned? that was one of the problems propounded by lord wensleydale, who for many years devoted extraordinary powers of mind to quibbles altogether unworthy of him. there is no more painful sight for a man who dislikes the waste of human energy than a court engaged in discussing such a point. four judges, with eminent counsel and attorneys, will argue for days whether parliament, if it had thought of something of which it did not think, would have laid down an unimportant rule this way or that. it would have been better for the parties to the suit to toss up, and leave the most convenient rule to be adopted for the future. the 'contract act' had been prepared by the indian law commission, and had been under discussion for five years. the final revision had taken place in the winter of - , and fitzjames specially acknowledges the help of two colleagues in the legislative council, messrs. bullen smith and stewart, gentlemen engaged in business at calcutta. the subject is too technical for me to approach it. one point may just be mentioned: if a man steals a cow, and sells it to an innocent purchaser, who is to suffer the loss when the theft is discovered? the original owner, said the law commission. the purchaser, said the legislative council. stealing cows is one of the commonest of indian offences--so much so that it is a regular profession to track stolen cattle. but if the buyer has a good title to the cow, unless he knows it to be stolen, the recovery would be generally impossible. cattle-stealers would flourish, and would find an asylum in our territory, where the law would differ from that of the native states. this appears to indicate one of the subjects of discontent of the law commission, who desired to pass measures unsuitable, according to the indian government, to the conditions of the country. i have now mentioned, i think, the most important measures in which fitzjames was concerned, whether as having framed the original draft or simply as officially responsible for the work of others. he had, of course, more or less share in many other acts, some of much importance. little more than a month after his arrival he had to introduce a bill upon hindoo wills; and, in speaking on the occasion, elaborately discussed its relation to hindoo theories as to property, and especially as to the right of creating perpetuities. this speech appears to have made a very strong impression upon his hearers. in the last months of his residence he had charge of a bill upon oaths and declarations, which suggests some curious points of casuistry. what, for example, is to be done in regard to people who believe that they will be damned if their sworn statements are inaccurate, unintentionally or otherwise, and who, inferring that damnation is tolerably certain, argue that they may as well tell a big lie as a small one? how, again, is a european to appreciate the value of an oath made upon a cow's tail or a tiger's skin? i will not go into such discussions, noting only that he seems to have been profoundly interested in them all. fitzjames, of course, served upon many committees, and had to attend to the current business of his office. in the last three or four months of his stay, the larger measures which i have mentioned were finally passed into law. the punjab land revenue act was passed on october , ; the evidence act on march , ; the native marriages act on march ; the punjab laws on march ; the contract act on april ; and the criminal procedure act on april . in proposing the passage of the contract act he took occasion to give his view of the result which had so far been reached in the direction of codifying the indian laws. it might be said, in a summary way, that consolidation was nearly satisfactory in regard to 'current legislation,' that is, legislation required with a view to particular cases. in regard to 'procedure,' the process of codification was complete, with two or three exceptions. it would be complete when the code of civil procedure had been re-enacted; when the revenue procedure in the central provinces had been regulated, and another measure or two passed. finally, the 'substantive law' includes many most important subjects--the laws of inheritance, for example, and the land laws, which are determined by the native customs, and which, for obvious reasons, we cannot touch. when two or three gaps to which he pointed (the law of 'torts,' for example) had been filled, we should have as much codification as 'would be required for a length of time.' the statute law of india would then be comprised in four or five octavo volumes, and the essential part of it in five or six acts, which might be learnt in a year of moderate industry. a young civilian who knew the penal code, the succession act, the contract act, the two procedure codes, the evidence acts, the limitation act, and the land revenue acts of his province would know more than nineteen barristers out of twenty when they are called to the bar; and all this would go into a moderately sized octavo volume. his successor, he thought, would be able to accomplish all that was required. he observes, however, emphatically, that a process of re-enactment would be always required. it is necessary to keep laws steadily up to date, having regard to decisions of the courts upon new cases, and to any legislative changes. no important act should be left without amendments for more than ten or twelve years. a constant process of repairing is as necessary to a system of legislation as it is to the maintenance of a railway. i am, as i have already said, incompetent to form any opinion as to the intrinsic value of these codes. one able critic, sir c. p. ilbert, in the 'law quarterly,' observes that their real merit is that they were 'suitable and sufficient for the needs which they were intended to meet. what was urgently needed for india was a guide for the judge or magistrate who has had no legal training, who derives little or no assistance from the bar, and who has to work at a distance from a law library.' fitzjames's legislation, he thinks, was 'admirably adapted' for advancing the previous indian system a step further; although his codes might not meet the requirements of the present generation of english lawyers. sir c. p. ilbert, i may add, speaks very strongly of the 'educational value' of the contract act in particular, as shown by his experience of indian civil service examinations. he thinks that fitzjames's other writings and codes have a similar merit. a gentleman of high judicial position and very great indian experience has expressed to me his high admiration of the evidence act. it is, he says, 'a wonderful piece of work, boiling down so much into so small a compass.' it is 'an achievement to be proud of,' although parts of it, he adds, are open to criticism, and especially to the criticism that it is 'over the heads of those who have to deal with it.' it presupposes outside knowledge which they often do not possess. these criticisms do not altogether coincide, and i shall not endeavour to reconcile or discriminate. i am content to say that i have heard on all hands, from persons qualified to express an opinion here, that fitzjames's work made a marked impression upon indian legislation, and, with whatever qualifications, is admitted to have been of very great service to the administrators of the country. i shall venture, however, to add a word or two upon the qualities, mental and moral, thus displayed. sir c. p. ilbert says that fitzjames was a 'cyclopean builder. he hurled together huge blocks of rough-hewn law. it is undeniable that he left behind him some hasty work,' which his successors had to remove and replace. in half the ordinary term of office he did work enough for five law members, and 'left the legislative council breathless and staggering,' conscious of having accomplished 'unprecedented labours,' but with some misgivings as to the quality of parts of the work. fitzjames, that is, was a man of enormous energy, who fulfilled only half of the famous maxim; he laboured 'without rest,' but not 'without haste.' as for the energy displayed, there can, i imagine, be only one opinion.[ ] and if unflagging zeal in doing the duty which lies nearest, and an entire devotion of a man's whole powers of mind to what he sincerely believes to be a great and worthy task, be not virtues deserving of all respect, i do not know what qualities are entitled to that name. a vigorous constitution of mind and body applied to the discharge of appropriate duties describes a most felicitous combination of circumstances, and indicates a character which i, at least, cannot regard without cordial admiration. it is true that he loved his work; but that is just what constitutes his merit. i might express my feeling more strongly if i were less closely connected with its object. the direction, though not the extent, of the shortcomings of such an intellectual force may be easily imagined. if there was one thing which fitzjames hated it was needless subtlety, and the technicalities which are the product of such subtlety--the provision of a superfluous logical apparatus, which, while it gives scope for ingenuity, distracts the mind from the ends for which it is ostensibly designed. i have quoted enough to show the intensity of his longing for broad, general, common-sense principles, which was, indeed, his most prominent intellectual characteristic. now a code should, as i take it, like the scientific classification of any other subject-matter, combine this with intellectual excellence at the opposite pole. the scientific classification, when once made, should appear, as the botanists say, to be natural, not artificial. if fully successful, it should seem as if it could not but have been made, or as if it made itself. every subdivision should fall spontaneously into its right place without violence or distortion. the secret of achieving such a result is, i suppose, the selection of the right principles of division and subdivision from the first. when it appears that any given object refuses to fit itself conveniently into any one of our pigeon-holes, its obstinacy may betray a defect in the original system; and the code, like other artistic wholes in which every part has some definite relation to every other, may require a remanipulation throughout. now, if i understand fitzjames's intellectual temperament rightly, this indicates the point at which his patience might begin to fail. when he met with some little specimen which would not go of itself upon any of his previous arrangements, he would be apt to treat it with disrespect, and possibly to jam it in with too rough and ready a hand into the nearest compartment. in so doing he might really be overlooking the indication of a fault in the system, reaching further than he suspected. an apparent subtlety may really correspond to an important distinction, and an outward simplicity be attained at the cost of some internal discord. in short, the same kind of defect which prevented him from becoming an accurate classical scholar, or from taking a sufficient interest in the more technical parts of his profession, would show itself in the delicate work of codification by a tendency to leave raw edges here and there in his work, and a readiness to be too easily satisfied before the whole structure had received the last possible degree of polish. thus i find, from various indications which i need not specify, that some of his critics professed to have discovered flaws in his work, while he honestly thought the criticism superfine, and the errata pointed out such as concerned a mere corrector of the press rather than a serious legislator for practical purposes. but i must not even attempt to conjecture which was right and which was wrong, nor how far there might be right and wrong upon both sides. iii. indian impressions these rather vague presumptions must take the place of any deliberate estimate of the value of fitzjames's achievements in india. i must, however, say something more of the impression made upon his own mind. i have already indicated some of the convictions suggested to him by his experience, and i shall have to speak in the next chapter of the book in which he endeavoured to set forth their application to political principles in general. here i will summarise his view of the special principles of indian legislation. it is given very emphatically in sir w. w. hunter's 'life of lord mayo,' and will, i think, materially elucidate his position in regard to certain wider problems. he observes, in the first place, that the legislative department had been accused of over-activity and of a desire to introduce english law with too little regard to native ideas. the chief legislative reform required for india, he was often told, was the abolition of the legislative department--an assertion which, i should guess, when made in his presence, must have given rise to some rather lively discussions. he thought that this view rested mainly upon certain prejudices very generally entertained though not often stated in precise words. many civilians really objected to government by law, holding that in india law should be overridden by 'equity,' or, briefly, that the district officers should decide by their own views of each particular case. such persons, again, frequently held that the british rule had succeeded to the absolute power of the old native states, and that the vigour of the executive should be fettered by as few laws as possible. this feeling had been strengthened by the fact that the old supreme courts were originally established as a check upon the powers of the government. the two powers came to be regarded as in a position of natural antagonism, and nothing struck him more than the conviction of the older members of the service that lawyers were their natural enemies, and the law a mysterious power with the special function of trammelling executive action. various little encounters in the legislative council testify to this difference of sentiment. when he explained to a military officer of rank the power conferred by the criminal tribes act, mentioned above, the officer replied, 'it is quite a new idea to me that the law can be anything but a check to the executive power.' the same sentiment underlay the frequent complaints of the want of 'elasticity' of the law. when brought to a point these complaints always related to certain regulations for taking down and recording evidence. what was really desired by the persons concerned was elasticity in the degree of attention which they might pay to their most important duties. so an officer complained that he could not punish certain persons whom he knew to be murderers, though witnesses were afraid to appear. what he really wanted, it was implied, was power to put people to death on the secret information of irresponsible witnesses. hence, the first question is whether india should be governed by law or by merely personal discretion. baseless as the 'discretion' theory may be, it has a strong unavowed influence. and yet it is the very specific difference of our rule that it is rule by law and not despotism. englishmen could have no desire simply to set up a new despotism differing from the old only in being administered by englishmen instead of natives. the moral difference is unmistakable. decisive government by law gives the only real security for life or property, and is the indispensable condition for the growth of wealth. nor is a compromise more possible between law and despotism than between straight and crooked. the essence of one system is that no one shall suffer in person or property except according to law. the essence of the other is that security of person and property is dependent upon the will of the ruler. nowhere is this shown more clearly than in india. the remedy of the poorest peasant in the country against any wrongful action of the government in india is far clearer and more simple than the remedy of the richest and most influential man against the government in england.[ ] the absolute necessity of government by law is shown, however, most strikingly by a process going on throughout the country--the growth of private rights, and especially of rights in land. under the old despotic systems, the place of law was taken by a number of vague and fluctuating customs, liable to be infringed at every moment by the arbitrary fancies of the rulers. society was 'worn to the bone.' it had become an aggregate of villages, each forming a kind of isolated units. in some districts even the villages had been broken up and no political organisation remained except that between landholders and individual husbandmen, which was really a relation between oppressors and oppressed. elsewhere, there was a chaos of village communities, dominated by the most inorganic and ill-defined of aristocracies and monarchies. the village communities are decaying, and, in spite of regrets prompted by various reasons, they decay because they represent a crude form of socialism, paralysing to individual energy and inconsistent with the fundamental principles of our rule. the cardinal duty which we have to discharge in india is to keep the peace. the villages formed self-contained communities, each regulating its own affairs, and bound by loose customs, leading to quarrels which could only be settled by blood-feuds and the strong hand. strict laws and a rigid administration of justice are incompatible with such modes of determining disputes between man and man and village and village. the communities, therefore, break up when the law admits of no coercive action except its own. if we will not allow a man to gather his friends, arm them with bludgeons, and march out to settle a boundary dispute with a neighbouring village, we must settle the boundary ourselves, and we must settle it by distinct rules--that is, we must enforce laws. peace and law go together, as violence and elastic custom go together. now we must keep the peace, and, therefore, we must rule by law. rule by law, however, though necessary, is not a necessary evil but an invaluable benefit. laws are necessary to vigorous administration. when lawrence and his colleagues undertook to rule the punjab, it was a popular notion that they ruled by mere personal discretion. the fact, as already noticed, was the very reverse. their first step was to establish far better, simpler, and more scientific systems of law than were in force in the older provinces. moreover, and this is one of fitzjames's most characteristic theories, 'the establishment of a system of law which regulates the most important part of the daily life of a people constitutes in itself a moral conquest, more striking, more durable, and far more solid than the physical conquest which renders it possible. it exercises an influence over the minds of the people in many ways comparable to that of a new religion.' this is the more significant because the instructed natives who study the laws, both mohammedan and hindoo, have been accustomed to identify law and religion. 'our law is, in fact, the sum and substance of what we have to teach them. it is, so to speak, the gospel of the english, and it is a compulsory gospel which admits of no dissent and of no disobedience.' finally, if government does not make laws, each officer or group of officers will have to make their own. practically they will buy a few english law-books and apply them in a servile way to the cases which turn up. india, then, must be ruled by law. by what law? shall we endeavour to govern on native principles and by native agency? to this theory, which has attracted many friends, he replies, no; first, because indian ideas about government are wrong; they are proved to be wrong by experience, which shows that they led to anarchy and demoralisation; and, secondly, because they have produced men and institutions unfit for government. if, therefore, we tried to rule by oriental methods and agents, we should either make ourselves responsible for their oppressions, or we should have to keep them in order, and that is to rule by law. we should, again, have to watch perpetually over the mass of personal intrigue which is the 'curse of every despotic state.' we should require a large native army and live under a perpetual threat of mutiny. in fact, the mutiny of really represented the explosion and the collapse of this policy. finally, we should have to choose between mohammedans and hindoos, and upon either alternative a ruler not himself belonging to the religion comes into inevitable conflict with their fundamental principles. we have, then, no choice but to rule by law and to frame laws upon european principles. here, it is necessary to guard against misunderstandings which have given rise to the charge of over-legislation. 'european principles' mean those principles which have been shown by our experience to be essential to peace, order, wealth, and progress in arts and sciences. 'no one,' says fitzjames, 'can feel more strongly than i do the madness of the smallest unnecessary interference with the social habits and religious opinions of the country. i would not touch one of them except in cases of extreme necessity.' but the simple introduction of peace, law, order, free competition for wealth and honour, with an education to match, will inevitably cause a social revolution. by merely suppressing violence and intestine war, you produce such a revolution in a country, which has for centuries been the theatre of disorder and war, as surely as by damming a river you produce a lake. you must look after the security of your dams under penalty of fearful disasters. hence the great problem of the english in india is to see that this inevitable revolution, at the head of which they have been placed, shall run in the proper channels and produce good results. what will be the ultimate result passes the wit of man to say. that india should reproduce europe in religious morals and law seems highly improbable; but whatever changes take place will depend upon other causes than legislation. the law can only provide a convenient social framework. the utmost that we are entitled to say is that the maintenance of peace, order, and the supremacy of a law, which leaves all religious inquiries to find their own level, and is founded upon temporal expediency, is an indisputable condition of the only kind of benefits which it is in our power to confer upon india. the conclusion, then, follows that so much legislation is not only justifiable but necessary as will provide for the following objects:--the firm establishment of our power; the recognition and enforcement of the principles which it represents; and the vigorous administration of the government. such legislation should be earned out, however much opposed either to european or to native principles. but all legislation, not required for these purposes, is mischievous and dangerous. the limits thus defined in general terms can only be precisely marked out by experience. but 'no law should be made till it is distinctly perceived and felt to be necessary. no one can admit more fully or feel more strongly than i do the evils and dangers of mere speculative legislation in india.' fitzjames proceeds to argue that these principles have in fact guided our indian legislation. no government was 'ever less justly chargeable with enacting laws merely for the sake of legislation.' the faults have arisen from defects of style and from the peculiar conditions of indian administration. the unwritten law of india is mainly personal; and many difficulties have arisen from the mixture of english law with the mohammedan and hindoo laws and other native customs. all cases not otherwise provided for were to be decided by justice, equity, and good conscience. much latitude of decision was thus left to the indian judges upon matters not included in the written law. the practical result of thus 'throwing the reins on the neck of judges,' the first body of whom had no professional training, was to produce a vague uncertain feeble system,' combining the defects of 'a weak grasp of principle with a great deal of occasional subservience to technicality.' english professional lawyers occasionally seem to acquire a specially vigorous grasp of principles, to which they have had to force their way through a mass of confused precedent and detail. but the 'unprofessional judge seldom gets beyond a certain number of illustrations and rules, more or less imperfectly understood.' hence the special necessity in india of reducing the laws to the clearest and most explicit shape possible, or, in other words, for the codifying process in which he had played his part. sir w. w. hunter remarks in a note that the evils indicated here have been remedied to some extent, 'partly through the influence which his (fitzjames's) views have exercised' in india, by a greater separation between the judicial and the executive branches of the service. one of fitzjames's most remarkable pieces of work is a 'minute on the administration of justice in british india,' containing his remarks upon the subject mentioned by sir w. w. hunter. it was originally written in the summer of , as a comment upon a large mass of opinions obtained from the local governments. it was revised in , and published[ ] just before he left india in . the desirability of separating the judicial from the executive functions of the civilians had been long under discussion, and very various opinions had been held. in this minute fitzjames summarises these, and gives his own view of the points on which he considered himself able to form an opinion. many of the questions raised could only be answered to any purpose by men who had had long practical experience of administration. fitzjames, however, gives a careful account of the actual systems of the various provinces: discusses how far it is possible or desirable to separate the functions; whether a 'special judicial branch of the civil service' should be created; whether any modification would be desirable in the systems of civil or criminal procedure; and what practical suggestions should be followed, having regard to economy and to an increased employment of natives. i cannot even attempt to describe his arguments. i will only say that the minute appears to me to be a very remarkable production, not only as indicating the amount of labour bestowed, amid so many other occupations, upon the important questions discussed; but as one of his best performances as a very clear and terse account of a complicated system with a brief but exceedingly vigorous exposition of what he thought should be the governing principles of any reforms. he held, i may say, in a general way that there were some evils which required a remedy; especially those resulting from the frequency of appeals in the indian system and the elaborate supervision of the magistrates by the high courts. he recognises imperfections inherent and excusable in the attempt to administer justice to so vast a population by a small body of foreigners with very imperfect legal training; though he shows his usual admiration for the general results of british government, and thinks that the efficiency of the service may be secured by moderate reforms. incidentally he goes over many of the points already noticed as touched in his speeches. i have, however, said as much as is desirable in regard to his general principles as expounded in the minute and in the 'life of lord mayo.' every one of the legislative measures in which he was concerned might be regarded as an illustration of one or more of these propositions. to me it seems that they represent at least a definite policy, worthy of his common sense and general vigour of mind. a generalisation from these principles came to constitute his political creed in later years. iv. last months in india i must now speak of an event which made a very strong impression upon him. he concludes the chapter from which i have been quoting by declaring that of the many public men whom he had met in england and india, there was none to whom he 'felt disposed to give such heartfelt affection and honour' as to lord mayo. lord mayo, he says, though occupied in many other ways, had shown the 'deepest personal interest' in the work of the legislative department, and, when difficulties arose, had given to it the warmest, most ardent, and most effective support. it was chiefly due to lord mayo that the government was able to pass the important acts of the beginning of , especially the three great measures: the 'civil procedure code,' the 'contract act,' and the 'evidence code.' i hope, says fitzjames to sir w. w. hunter, that you will be able to make people understand 'how wise and honest and brave he was, and what freshness, vigour, and flexibility of mind he brought to bear upon a vast number of new and difficult subjects.' on january , , lord mayo left calcutta in h.m.s. 'glasgow' to visit, among other places, the convict settlement at the andaman islands. he landed there on february , and while getting into his boat to return was murdered by a convict. the body was brought back to calcutta on february , where it lay in state for two days at government house, before being sent for burial to his native country. in one of his last letters to his mother, fitzjames gives an account of the ceremonies at calcutta, which incidentally illustrates, i think, more forcibly than anything else, the impression produced upon him by india generally. i shall therefore give most of it, omitting a few comparatively irrelevant details. i will only observe that nobody had less taste for public performances of this kind in general--a fact which shows the strength of his feelings on this particular occasion. 'i never expected,' he writes (february , ), 'to be impressed by a mere ceremonial; but there were some things almost oppressive from their reality and solemnity.... the coffin was brought up on a gun-carriage. it was of enormous size and weight, (near two tons, i believe). the gun-carriage, drawn by twelve artillery horses, made a strangely impressive hearse. it looked so solid, so businesslike, so simple, and so free from all the plumes and staves and rubbish of undertakers. about thirty picked sailors from the "daphne" and "glasgow" walked behind and by the side; all dressed in clean white trousers and jerseys, and looking like giants, as indeed they were. they were intensely fond of lord mayo, who had won their hearts by the interest he took in them and in the little things they got up to amuse him.... he passed the last evening of his life sitting with lady mayo on the bridge of the "glasgow," and laughing at their entertainment with the greatest cordiality. they wanted to be allowed to carry the coffin on their own shoulders; they said they were ready and willing to do it, and i believe they would have been able, ready, and willing to do anything that strength and skill and pluck could do. behind them walked the procession, which was nearly three-quarters of a mile long, and contained every englishman of any importance in calcutta and a considerable number of natives. the whole road was lined with troops on both sides: but they stood at intervals of several yards, and there was an immense crowd close behind and, in some places in between them.... if there had been any other fanatics in the crowd, there was nothing to prevent them from making a rush and giving a stab.... if there had been any attempt of the kind, i cannot say what might not have happened. people were in such an excited and half-electric state that there might have been a general riot, which would soon have become very like a massacre. one man told me that on his way home, he felt possessed by such fury against anyone who might be connected with the murder, that he walked with a kind of charge through a group of people, who looked as if they enjoyed "the show," and gave a shove to a big mohammedan who looked insolent, at which, he said, "the man went down like a bag of feathers." i saw some suspicious-looking fellows grinning and sneering and showing their teeth myself, and i felt as if i could have killed them. no one who has not felt it can imagine how we all feel out here in regard to such matters. when lord mayo was stabbed, i think every man in the country felt as if he had been more or less stabbed himself. 'the procession went on with the most overwhelming solemnity (nothing short of these words can describe it), till we got to government house. there was a dead silence nearly all the way; the natives standing or squatting in their apathetic way, and the europeans as grim as death. all that was to be heard was the rattle of the gun-carriage, and the tramping of the horses, and the minute-guns from the fort and ships. the housetops, the windows, the fort were all crowded with people, but all as still as death. i think the ships looked as sad as anything. there were two miles of noble ships in the hooghly. their flags were all flying half-mast high, and they had all "tossed their yards."' (he draws a rough diagram to explain the phrase). 'the yards are all in disorder, and the effect is forlorn and dishevelled to a degree you would not imagine. when we got to government house, the coffin had to be lifted off the gun-carriage and pulled up a long flight of wide stone steps.... the sailors and a few artillerymen did it all in perfect silence, and with an amount of strength that looked almost marvellous.' the coffin was placed on a truck, to which the sailors harnessed themselves, and dragged it up an inclined plane (formed over the steps) with no apparent effort in spite of the enormous weight. it was taken along a suite of rooms, 'hung with black, and lighted with a curious simplicity and grandeur.' here, again, the coffin had to be lifted, and 'it was most striking to see the absolute silence with which the men moved the monstrous weight at a sign from the captain's hand.' the only sound was when a spar snapped in the hands of a 'giant of a fellow, who was lifting with it. there was a respectful delicacy in every motion of these men which combined beautifully with their immense, quiet, controlled strength, and impressed me very much. after a few prayers we left.' on wednesday, the st, the coffin was again removed to the ship. the imprudence of the former procession had struck everyone. the streets were cleared and no one admitted to the jetty except the procession. 'you cannot imagine the awful solemnity which all this precaution gave the whole thing. it was like marching through a city half-dead and half-besieged.' nothing was to be seen but troops; and, 'when we got into dalhousie square, there was a battery of artillery firing minute-guns, and drawn up on the road just as if they were going to fight. two or three bands played the dead march the whole way, till i felt as if it would never get out of my ears. at the end of the jetty lay the "daphne." ... the sailors, with infinite delicacy and quiet, draped the coffin carefully with its flags ... and it was raised and lowered by a steam-crane, which, somehow or other, they managed to work without any sound at all. when the ship steamed off down the river, and the minute-guns stopped, and i drove home with henry cunningham, i really felt as i suppose people feel when an operation is over. there was a stern look of reality about the whole affair, quite unlike what one has seen elsewhere. troops and cannon and gun-carriages seem out of place in england, ... but it is a very different matter here, where everything rests upon military force. the guns and the troops are not only the outward and visible marks of power, but they are the power itself to a great extent, and it is very impressive to see them. 'it gives a sort of relief to one,' he adds, 'that after all lord mayo was, in a sense, going home: that he (so far as one can speak of his dead body) was leaving this country with all its various miseries, to return to his own native place. if one is to have fancies on such a matter, it is pleasant to think that he is not to lie here in a country where we can govern and where we can work and make money and lead laborious lives; but for which no englishman ever did, or ever will, or can feel one tender or genial feeling.[ ] the work that is done here is great and wonderful; but the country is hateful.' one singular incident was connected with this event. the murderer had been tried on the spot and sentenced to death. the sentence had to be confirmed by the high court at calcutta. it was there discovered that the judge had by some mistake recorded that the european witnesses had 'affirmed' according to the form used for native religions, instead of being sworn according to the christian formula. fitzjames was startled to hear of this intrusion of technicality upon such an occasion; and held, i think, that in case of need, the government of india should manage to cut the knot. ultimately, however, some of the witnesses who were at calcutta made affidavits to the effect that they had really been sworn, and the sentence was confirmed and executed. otherwise, said fitzjames in one of his last indian speeches (upon the oaths and declaration act) a grievous crime might have escaped punishment, because five english gentlemen had made statements 'in the presence of almighty god,' instead of kissing the bible and saying 'so help me god.' i must mention one other incident which occurred at the end of fitzjames's stay in india. one ram singh was the spiritual and political chief of a sect called the kookas. his disciples showed their zeal by murdering butchers as a protest against cow-killing. they were animated by prophecies of a coming kingdom of heaven, broke into rioting and were suppressed, and, as the indian government held, punished with an excess of severity. although fitzjames was not officially responsible in this business, he was consulted on the occasion; and his opinions are represented by an official despatch. i need only say that, as in the case of governor eyre, he insisted that, while the most energetic measures were allowable to suppress actual resistance, this was no excuse for excessive punishment after the danger was over. the ordinary law should then be allowed to take its course. meanwhile, ram singh was shown to be more or less implicated in the disorders and was deported to burmah. fitzjames was greatly impressed by the analogy between english rulers in india and roman governors in syria some eighteen centuries ago, when religious sects were suspected of political designs. to this i shall refer presently. fitzjames attended the legislative council for the last time on april , . he left calcutta the next day on his return to england. he had thus been in office for only half the usual period of five years. his reasons for thus cutting short his time were simple. he felt very strongly that he was exacting a sacrifice on the part of his wife and his family which could only be justified by a very distinct advantage. the expenses were more than he had anticipated, and he saw at an early period that he would be in any case compelled to return to his profession. gaps at the bar are soon filled up. the more prolonged his absence, the greater would be the difficulty of regaining the position which he had slowly reached. i have some reason to think that the authorities at the india office were not altogether pleased at what they considered to be a premature relinquishment of his post. he could, however, reply that if he had been only half the usual time in india, he had done fully twice the average amount of work. he left india without regrets for the country itself; for to him the climate and surroundings of english life seemed to be perfection. but he left with a profound impression of the greatness of the work done by englishmen in india; and with a warm admiration for the system of government, which he was eager to impart to his countrymen at home. how he endeavoured to utter himself upon that and kindred subjects shall be told in the next chapter. footnotes: [footnote : his first letter to miss thackeray, i notice, is written upon the back of a quaint broadsheet, bought at boulogne. on the other side is a woodcut of the gallant 'tulipe' parting from his mistress, and beneath them is the song 'tiens, voici ma pipe, voilà mon briquet!' which montcontour used to sing at the 'haunt' to the admiration of pendennis and warrington. see the _newcomes_, vol. i. chap. xxxvi.] [footnote : i depend chiefly upon the official reports of the debates in the legislative council; my brother's own summary of indian legislation in a chapter contributed to sir w. w. hunter's _life of the earl of mayo_ ( ), ii. pp. - ; and a full account of indian criminal legislation in chap, xxxiii. of his _history of criminal law_. he gave a short summary of his work in an address to the social science association on november , , published in the _fortnightly review_ for december . i may also refer to an article upon 'sir james stephen as a legislator' in the _law quarterly review_ for july , by sir c. p. ilbert, one of his successors.] [footnote : i may say that he especially acknowledges the share of the work done in his own time by mr. whitley stokes, secretary to the council, by sir h. s. cunningham, for some time acting secretary, and by mr. cockerell, a member of the council.] [footnote : _history of criminal law_, iii. .] [footnote : _life of lord mayo_, ii. .] [footnote : _history of criminal law_, ii. - .] [footnote : 'obsolete enactments bill,' february , .] [footnote : _mayo_, ii. .] [footnote : the parties had also to be of certain ages, not already married, and not within certain degrees of relationship.] [footnote : see the account of this in _history of criminal law_, iii. - .] [footnote : _history of criminal law_, iii. .] [footnote : _digest of the law of evidence._ fourth edition, , pp. - .] [footnote : an edition of the _evidence code_, with notes by sir h. s. cunningham, reached a ninth edition in . it gives the changes subsequently made, which are not numerous or important.] [footnote : sir c. p. ilbert, however, is mistaken in supposing that fitzjames wrote his _liberty, equality, fraternity_ during his official labours.] [footnote : _life of mayo_, ii. .] [footnote : in _selections from the records of the government of india_, no. lxxxix., published by authority. calcutta, .] [footnote : i do not feel that it would be right to omit this remark, although i am certain that, taken by itself, it would convey a totally inaccurate impression of my brother's sentiments about india. i have, i hope, said enough to indicate his sympathetic interest in indian matters and the work of indian officials. i must trust my readers to understand that the phrase expresses a mood of intense excitement and must be taken only as indicating the strength of the passing emotion.] chapter v _last years at the bar_ i. first occupations in england fitzjames had passed the winter of - in calcutta with henry cunningham; his wife having returned to england in november. he followed her in the spring, sailing from bombay on april , . to most people a voyage following two years and a half of unremitting labour would have been an occasion for a holiday. with him, however, to end one task was the same thing as to begin another, and he was taking up various bits of work before india was well out of sight. he had laid in a supply of literature suitable both for instruction and amusement. the day after leaving bombay he got through the best part of a volume of sainte-beuve. he had also brought a 'faust' and auerbach's 'auf der höhe,' as he was anxious to improve himself in german, and he filled up odd spaces of time with the help of an italian grammar. he was writing long letters to friends in india, although letter-writing in the other direction would be a waste of time. with this provision for employment he found that the time which remained might be adequately filled by a return to his beloved journalism. he proposes at starting to write an article a day till he gets to suez. he was a little put out for the first twenty-four hours because in the place which he had selected for writing his iron chair was too near the ship's compasses. he got a safe position assigned to him before long and immediately set to work. he takes his first text from the may meetings for an article which will give everybody some of his reflections upon missionaries in india. our true position in india, he thinks, is that of teachers, if only we knew what to teach. hitherto we have not got beyond an emphatic assertion of the necessity of law and order. he writes his article while the decks are being washed, and afterwards writes a 'bit of a letter,' takes his german and italian lessons, and then turns to his travelling library. this included mill's 'utilitarianism' and 'liberty'; which presently provide him with material not only for reflection, but for exposition. on april he reports that he has been 'firing broadsides into john mill for about three hours.' he is a little distracted by the heat, and by talks with some of his fellow-travellers; but as he goes up the red sea he is again assailing mill. it has now occurred to him that the criticisms may be formed into a series of letters to the 'pall mall gazette,' which will enable him to express a good many of his favourite doctrines. 'it is curious,' he says, 'that after being, so to speak, a devoted disciple and partisan (of mill) up to a certain point i should have found it impossible to go on with him. his politics and morals are not mine at all, though i believe in and admire his logic and his general notions of philosophy.' he reached suez on may , and on the way home resolved at last to knock off work and have a little time for reflection on the past and the future. india, he says, has been 'a sort of second university course' to him. 'there is hardly any subject on which it has not given me a whole crowd of new ideas, which i hope to put into shape,' and communicate to the world. on may he reached paris, where he met his wife; and on the th was again in england, rejoicing in a cordial reception from his family and his old friends. the same evening he sees his cousin mrs. russell gurney and her husband; and his uncle and aunt, john and emelia venn. froude met him next day in the pleasantest way, and maine and he, as he reports, were 'like two schoolboys.' on the th he went to his chambers and called upon greenwood at the 'pall mall gazette' office. he had written an article on the way from paris which duly appeared in next day's paper. not long after his return he attended a dinner of his old cambridge club, with maine in the chair. in proposing maine's health he suggested that the legislation passed in india during the rule of his friend and himself should henceforth be called the 'acts of the apostles.' one of the greatest pleasures upon reaching home was to find that his mother showed less marks of increasing infirmity than he had expected from the accounts in letters. she was still in full possession of her intellectual powers, and though less able than of old to move about, was fully capable of appreciating the delight of welcoming back the son who had filled so much of her thoughts. i may here note that fitzjames's happiness in reviving the old bonds of filial affection was before long to be clouded. his uncle, henry venn, died on january , , and he writes on the th: 'somehow his life was so bold, so complete, and so successful, that i did not feel the least as if his death was a thing to be sad about,' sad as he confesses it to be in general to see the passing away of the older generation. 'my dear mother,' he adds, 'is getting visibly weaker, and it cannot now be a very long time before she goes too. it is a thought which makes me feel very sad at times, but no one ever had either a happier life or a more cheerful and gallant spirit. she does not care to have us to dinner now; but we all see her continually; i go perhaps every other day, and mary nearly every day.' his mother was to survive two years longer. her strong constitution and the loving care of the daughter who lived with her supported her beyond the anticipation of her doctors. there are constant references to her state in my brother's letters. the old serenity remained unchanged to the last. she suffered no pain and was never made querulous by her infirmities. slowly and gradually she seemed to pass into a world of dreams as the decay of her physical powers made the actual world more indistinct and shadowy. the only real subject for regret was the strain imposed upon the daughter who was tenderly nursing her, and doing what could be done to soothe her passage through the last troubles she was to suffer. it was as impossible to wish that things should be otherwise as not to feel the profound pathos of the gentle close to long years of a most gentle and beautiful life. fitzjames felt what such a son should feel for such a mother. it would be idle to try to put into explicit words that under-current of melancholy and not the less elevating thought which saddened and softened the minds of all her children. her children must be taken to include some who were children not by blood but by reverent affection. she died peacefully and painlessly on february , . she was buried by the side of her husband and of two little grandchildren, fitzjames's infant daughter and son, who had died before her. i now turn to the work in which fitzjames was absorbed almost immediately after his return to england. he had again to take up his profession. he was full of accumulated reflections made in india, which he had not been able to discharge through the accustomed channel of journalism during his tenure of office; and besides this he entertained hopes, rather than any confident belief, that he would be able to induce english statesmen to carry on in their own country the work of codification, upon which he had been so energetically labouring in india. before his departure he had already been well known to many distinguished contemporaries. but he came home with a decidedly higher reputation. in the natural course of things, many of his contemporaries had advanced in their different careers, and were becoming arbiters and distributors of reputation. his indian career had demonstrated his possession of remarkable energy, capable of being applied to higher functions than the composition of countless leading articles. he was henceforward one of the circle--not distinguished by any definite label but yet recognised among each other by a spontaneous freemasonry--which forms the higher intellectual stratum of london society; and is recruited from all who have made a mark in any department of serious work. he was well known, of course, to the leaders of the legal profession; and to many members of government and to rising members of parliament, where his old rival sir w. harcourt was now coming to the front. he knew the chief literary celebrities, and was especially intimate with carlyle and froude, whom he often joined in sunday 'constitutionals.' his position was recognised by the pleasant compliment of an election to the 'athenæum' 'under rule ii.,' which took place at the first election after his return ( ). he had just before (november ) been appointed counsel to the university of cambridge. before long he had resumed his place at the bar. his first appearance was at the old bailey in june , where he 'prosecuted a couple of rogues for government.' he had not been there since he had held his first brief at the same place eighteen years before, and spent his guinea upon the purchase of a wedding ring. he was amused to find himself after his dignified position in india regarded as a rather 'promising young man' who might in time be capable of managing an important case. the judge, he says, 'snubbed' him for some supposed irregularity in his examination of a witness, and did not betray the slightest consciousness that the offender had just composed a code of evidence for an empire. he went on circuit in july, and at warwick found himself in his old lodgings, writing with his old pen, holding almost the same brief as he had held three years before, before the same judge, listening to the same church bells, and taking the walk to kenilworth castle which he had taken with grant duff in . although the circuit appears to have been unproductive, business looked 'pretty smiling in various directions.' john duke coleridge, afterwards lord chief justice, was at this time attorney-general. fitzjames differed from him both in opinions and temperament, and could not refrain from an occasional smile at the trick of rather ostentatious self-depreciation which coleridge seemed to have inherited from his great-uncle. there was, however, a really friendly feeling between them both now and afterwards; and coleridge was at this time very serviceable. he is 'behaving like a good fellow,' reports fitzjames july , and is 'sending government briefs which pay very well.' by the end of the year fitzjames reports 'a very fair sprinkling of good business.' all his old clients have come back, and some new ones have presented themselves. there were even before this time some rumours of a possible elevation to the bench; but apparently without much solid foundation. meanwhile, he was also looking forward to employment in the direction of codification. he had offered, when leaving india, to draw another codifying bill (upon 'torts') for his successor hobhouse. this apparently came to nothing; but there were chances at home. 'i have considerable hopes,' he says (june , ), 'of getting set to work again after the manner of simla or calcutta.' there is work enough to be done in england to last for many lives; and the government may perhaps take his advice as to the proper mode of putting it in hand. he was soon actually at work upon two bills, which gave him both labour and worry before he had done with them. one of these was a bill upon homicide, which he undertook in combination with russell gurney, then recorder of london. the desirability of such a bill had been suggested to gurney by john bright, in consequence of a recent commission upon capital punishment. gurney began to prepare the work, but was glad to accept the help of fitzjames, whose labours had made him so familiar with the subject. substantially he had to adapt part of the penal code, which he must have known by heart, and he finished the work rapidly. he sent a copy of the bill to henry cunningham on august , , when it had already been introduced into parliament by r. gurney and read a first time. he sees, however, no chance of getting it seriously discussed for the present. one reason is suggested in the same letter. england is a 'centre of indifference' between the two poles, india and the united states. at each pole you get a system vigorously administered and carried to logical results. 'in the centre you get the queerest conceivable hubblebubble, half energy and half impotence, and all scepticism in a great variety of forms.' the homicide bill was delayed by russell gurney's departure for america on an important mission in the following winter, but was not yet dead. one absurd little anecdote in regard to it belongs to this time. fitzjames had gone to stay with froude in a remote corner of wales; and wishing to refer to the draft, telegraphed to the recorder of london: 'send homicide bill.' the official to whom this message had to be sent at some distance from the house declined to receive it. if not a coarse practical joke, he thought it was a request to forward into that peaceful region a wretch whose nickname was too clearly significant of his bloodthirsty propensities. fitzjames mentions in the same letter to cunningham that he has just finished the 'introduction' to his indian evidence act. this subject brought him further occupation. he had more or less succeeded in making a convert of coleridge. 'if this business with coleridge turns out right,' he says (october ), 'i shall have come home in the very nick of time, for there is obviously going to be a chance in the way of codification which there has not been these forty years, and which may never occur again.' had he remained in india, he might have found the new viceroy less favourable to his schemes than lord mayo had been, and would have at any rate missed the chance of impressing the english government at the right time. on november he writes again to cunningham, and expresses his disgust at english methods of dealing with legislation. he admits that 'too much association with old carlyle, with whom i walk most sundays,' may have made him 'increasingly gloomy.' but 'everything is so loose, so jarring, there is such an utter want of organisation and government in everything, that i feel sure we shall have a great smash some day.' a distinguished official has told him--and he fully believes it--that the admiralty and the war office would break down under a week's hard pressure. he observes in one article of the time that his father had made the same prophecy before . he often quotes his father for the saying, 'i am a ministerialist.' men in office generally try to do their best, whatever their party. but men in opposition aim chiefly at thwarting all action, good or bad, and a parliamentary system gives the advantage to obstruction. part of his vexation, he admits, is due to his disgust at the treatment of the codification question. coleridge, it appears, had proposed to him 'months ago' that he should be employed in preparing an evidence bill. difficulties had arisen with lowe, the chancellor of the exchequer, as to the proper fee. fitzjames was only anxious now to get the thing definitively settled on any terms and put down in black and white. the government might go out at any moment, and without some agreement he would be left in the lurch. it was 'excessively mortifying, ... and showed what a ramshackle concern our whole system' was. definite instructions, however, to prepare the bill were soon afterwards given. on december he writes that the english evidence bill is getting on famously. he hopes to have it all ready before parliament meets, and it may probably be read a second time, though hardly passed this year. it was in fact finished, as one of his letters shows, by february , . ii. 'liberty, equality, fraternity' meanwhile, however, he had been putting much energy into another task. he had for some time delivered his tale of articles to the 'pall mall gazette' as of old. he was soon to become tired of anonymous journalism; but he now produced a kind of general declaration of principles which, though the authorship was no secret and was soon openly acknowledged, appeared in the old form, and, as it turned out, was his last work of importance in that department. it was in some ways the most characteristic of all his writings. he put together and passed through the 'pall mall gazette' during the last months of and january the series of articles already begun during his voyage. they were collected and published with his name in the following spring as 'liberty, equality, fraternity.' i confess that i wondered a little at the time that the editor of a newspaper should be willing to fill his columns with so elaborate a discourse upon first principles; and i imagine that editors of the present day would be still more determined to think twice before they allowed such latitude even to the most favoured contributor. i do not doubt, however, that mr. greenwood judged rightly. the letters were written with as much force and spirit as anything that fitzjames ever produced. i cannot say how they affected the paper, but the blows told as such things tell. they roused the anger of some, the sympathy of others, and the admiration of all who liked to see hard hitting on any side of a great question. the letters formed a kind of 'apologia' or a manifesto--the expression, as he frequently said, of his very deepest convictions. i shall therefore dwell upon them at some length, because he had never again the opportunity of stating his doctrines so completely. those doctrines are far from popular, nor do i personally agree with them. they are, however, characteristic not merely of fitzjames himself, but of some of the contemporary phases of opinion. i shall therefore say something of their relation to other speculations; although for my purpose the primary interest is the implied autobiography. the book was perhaps a little injured by the conditions under which it was published. a series of letters in a newspaper, even though, as in this case, thought out some time beforehand, does not lend itself easily to the development of a systematic piece of reasoning. the writer is tempted to emphasise unduly the parts of his argument which are congenial to the journalistic mode of treatment. it is hard to break up an argument into fragments, intended for separate appearance, without somewhat dislocating the general logical framework. the difficulty was increased by the form of the argument. in controverting another man's book, you have to follow the order of his ideas instead of that in which your own are most easily expounded. fitzjames, indeed, gives a reason for this course. he accepts mill's 'liberty' as the best exposition of the popular view. acknowledging his great indebtedness to mill, he observes that it is necessary to take some definite statement for a starting point; and that it is 'natural to take the ablest, the most reasonable, and the clearest.' mill, too, he says, is the only living author with whom he 'agrees sufficiently to argue with him profitably.' he holds that the doctrines of mill's later books were really inconsistent with the doctrines of the 'logic' and 'political economy.' he is therefore virtually appealing from the new utilitarians to the old. 'i am falling foul,' he says in a letter, 'of john mill in his modern and more humane mood--or, rather, i should say, in his sentimental mood--which always makes me feel that he is a deserter from the proper principles of rigidity and ferocity in which he was brought up.' fitzjames was thus writing as an orthodox adherent of the earlier school. he had sat at the feet of bentham and austin, and had found the most congenial philosophy in hobbes. and yet his utilitarianism was mingled with another strain; and one difficulty for his readers is precisely that his attack seems to combine two lines of argument not obviously harmonious. still, i think that his main position is abundantly clear. fitzjames--as all that i have written may go to prove--was at once a puritan and a utilitarian. his strongest sympathies and antipathies were those which had grown up in the atmosphere of the old evangelical circle. on this side, too, he had many sympathies with the teaching of carlyle, himself a spiritual descendant of the old covenanters. but his intellect, as i have also remarked, unlike carlyle's, was of the thoroughly utilitarian type. respect for hard fact, contempt for the mystical and the dreamy; resolute defiance of the _à priori_ school who propose to override experience by calling their prejudices intuitions, were the qualities of mind which led him to sympathise so unreservedly with bentham's legislative theories and with mill's 'logic.' let us, before all things, be sure that our feet are planted on the solid earth and our reason guided by verifiable experience. all his studies, his legal speculations, and his application of them to practice, had strengthened and confirmed these tendencies. how were they to be combined with his earlier prepossessions? the alliance of puritan with utilitarian is not in itself strange or unusual. dissenters and freethinkers have found themselves side by side in many struggles. they were allied in the attack upon slavery, in the advocacy of educational reforms, and in many philanthropic movements of the early part of this century. james mill and francis place, for example, were regarded as atheists, and were yet adopted as close philanthropic allies by zachary macaulay and by the quaker william allen. a common antipathy to sacerdotalism brought the two parties together in some directions, and the protestant theory of the right of private judgment was in substance a narrower version of the rationalist demand for freedom of thought. protestantism in one aspect is simply rationalism still running about with the shell on its head. this gives no doubt one secret of the decay of the evangelical party. the protestant demand for a rational basis of faith widened among men of any intellectual force into an inquiry about the authority of the bible or of christianity. fitzjames had moved, reluctantly and almost in spite of himself, very far from the creed of his fathers. he could not take things for granted or suppress doubts by ingenious subterfuges. and yet, he was so thoroughly imbued with the old spirit that he could not go over completely to its antagonists. to destroy the old faith was still for him to destroy the great impulse to a noble life. he held in some shape to the value of his creed, even though he felt logically bound to introduce a 'perhaps.' this, however, hardly gives the key to his first difference with the utilitarians, though it greatly affects his conclusions. he called himself, as i have said, a liberal; but there were, according to him, two classes of liberals, the intellectual liberals, whom he identified with the old utilitarians, and the liberals who are generally described as the manchester school. which of those was to be the school of the future, and which represented the true utilitarian tradition? here i must just notice a fact which is not always recognised. the utilitarians are identified by most people with the (so-called) manchester doctrines. they are regarded as advocates of individualism and the _laissez-faire_ or, as i should prefer to call it, the let-alone principle. there was no doubt a close connection, speaking historically; but a qualification must be made in a logical sense, which is very important for my purpose. the tendency which fitzjames attacked as especially identified with mill's teaching--the tendency, namely, to restrict the legitimate sphere of government--is far from being specially utilitarian. it belonged more properly to the adherents of the 'rights of man,' or the believers in abstract reason. it is to be found in price and paine, and in the french declaration of the rights of man; and mr. herbert spencer, its chief advocate (in a new form) at the present day remarks himself that he was partly anticipated by kant. bentham expressly repudiated this view in his vigorous attack upon the 'anarchical fallacies' embodied in the french declaration. in certain ways, moreover, bentham and his disciples were in favour of a very vigorous government action. bentham invented his panopticon as a machine for 'grinding rogues honest,' and proposed to pass paupers in general through the same mill. his constitutional code supposes a sort of omnipresent system of government, and suggests a national system of education and even a national church--with a very diluted creed. as thorough-going empiricists, the utilitarians were bound to hold, and did, in fact, generally declare themselves to hold, not that government interference was wrong in general, but simply that there was no general principle upon the subject. each particular case must be judged by its own merits. historically speaking, the case was different. the political economy of ricardo and the mills was undoubtedly what is now called thoroughly 'individualistic.' its adherents looked with suspicion at everything savouring of government action. this is in part one illustration of the general truth that philosophies of all kinds are much less the real source of principles than the theories evoked to justify principles. their course is determined not by pure logic alone, but by the accidents of contemporary politics. the revolutionary movement meant that governments in general were, for the time, the natural enemies of 'reason.' philosophers who upon any ground sympathised with the movement took for their watchword 'liberty,' which, understood absolutely, is the antithesis to all authority. they then sought to deduce the doctrine of liberty from their own philosophy, whatever that might be. the _à priori_ school discovered that kings and priests and nobles interfered with a supposed 'order of nature,' or with the abstract 'rights of man.' the utilitarian's argument was that all government implies coercion; that coercion implies pain; and therefore that all government implies an evil which ought to be minimised. they admitted that, though 'minimised,' it should not be annihilated. bentham had protested very forcibly that the 'rights of man' doctrine meant anarchy logically, and asserted that government was necessary, although a necessary evil. but the general tendency of his followers was to lay more stress upon the evil than upon the necessity. the doctrine was expounded with remarkable literary power by buckle,[ ] who saw in all history a conflict between protection and authority on the one hand and liberty and scepticism on the other. j. s. mill had begun as an unflinching advocate of the stern old utilitarianism of his father and ricardo. he had become, as fitzjames observes, 'humane' or 'sentimental' in later years. he tried, as his critics observe, to soften the old economic doctrines and showed a certain leaning to socialism. in regard to this part of his teaching, in which fitzjames took little interest, i shall only notice that, whatever his concessions, he was still in principle an 'individualist.' he maintained against the socialists the advantages of competition; and though his theory of the 'unearned increment' looks towards the socialist view of nationalisation of the land, he seems to have been always in favour of peasant proprietorship, and of co-operation as distinguished from state socialism. individualism, in fact, in one of its senses, for like other popular phrases it tends to gather various shades of meaning, was really the characteristic of the utilitarian school. thus in philosophy they were 'nominalists,' believing that the ultimate realities are separate things, and that abstract words are mere signs calling up arbitrary groups of things. politically, they are inclined to regard society as an 'aggregate,' instead of an 'organism.' the ultimate units are the individual men, and a nation or a church a mere name for a multitude combined by some external pressure into a collective mass of separate atoms.[ ] this is the foundation of mill's political theories, and explains the real congeniality of the let-alone doctrines to his philosophy. it gives, too, the key-note of the book upon 'liberty,' which fitzjames took for his point of assault. mill had been profoundly impressed by tocqueville, and, indeed, by an order of reflections common to many intelligent observers. what are to be the relations between democracy and intellectual culture? many distinguished writers have expressed their forebodings as to the future. society is in danger of being vulgarised. we are to be ground down to uniform and insignificant atoms by the social mill. the utilitarians had helped the lower classes to wrest the scourge from the hands of their oppressors. now the oppressed had the scourge in their own hands; how would they apply it? coercion looked very ugly in the hands of a small privileged class; but when coercion could be applied by the masses would they see the ugliness of it? would they not use the same machinery in order to crush the rich and the exalted, and take in the next place to crushing each other? shall we not have a dead level of commonplace and suffer, to use the popular phrase, from a 'tyranny of the majority,' more universal and more degrading than the old tyranny of the minority? this was the danger upon which mill dwelt in his later works. in his 'liberty' he suggests the remedy. it is nothing less than the recognition of a new moral principle. mankind, he said, individually or collectively, are justified in interference with others only by the need of 'self-protection.' we may rightfully prevent a man from hurting his neighbour, but not from hurting himself. if we carefully observe this precaution the individual will have room to expand, and we shall cease to denounce all deviations from the common type. here fitzjames was in partial sympathy with his antagonist. he reviewed 'liberty' in the 'saturday review' upon its first appearance; and although making certain reservations, reviewed it with warm approbation. mill and he were agreed upon one point. a great evil, perhaps the one great evil of the day, as fitzjames constantly said, is the prevalence of a narrow and mean type of character; the decay of energy; the excessive devotion to a petty ideal of personal comfort; and the systematic attempt to turn our eyes away from the dark side of the world. a smug, placid, contemptible optimism is creeping like a blight over the face of society, and suppressing all the grander aspirations of more energetic times. but in proportion to fitzjames's general agreement upon the nature of the evil was the vehemence of his dissent from the suggested remedy. he thought that, so far from meeting the evil, it tended directly to increase it. to diminish the strength of the social bond would be to enervate not to invigorate society. if mill's principles could be adopted, everything that has stimulated men to pursue great ends would lose its interest, and we should become a more contemptible set of creatures than we are already. i have tried to show how these convictions had been strengthened by circumstances. fitzjames's strong patriotic feeling, his pride in the british race and the british empire, generated a special antipathy to the school which, as he thought, took a purely commercial view of politics; which regarded the empire as a heavy burthen, because it did not pay its expenses, and which looked forward to a millennium of small shopkeepers bothered by no taxes or tariffs. during the 'pall mall gazette' period he had seen such views spreading among the class newly entrusted with power. statesmen, in spite of a few perfunctory attempts at better things, were mainly engaged in paltry intrigues, and in fishing for votes by flattering fools. the only question was whether the demagogues who were their own dupes were better or worse than the demagogues who knew themselves to be humbugs. carlyle's denunciations of the imbecility of our system began to be more congenial to his temper, and encouraged him in his heresy. carlyle's teachings were connected with erroneous theories indeed, and too little guided by practical experience. but the general temper which they showed, the contempt for slovenly, haphazard, hand-to-mouth modes of legislation, the love of vigorous administration on broad, intelligible principles, entirely expressed his own feeling. finally, in india he had, as he thought, found his ideal realised. there, with whatever shortcomings, there was at least a strong government; rulers who ruled; capable of doing business; of acting systematically upon their convictions; strenuously employed in working out an effective system; and not trammelled by trimming their sails to catch every temporary gust of sentiment in a half-educated community. his book, he often said, was thus virtually a consideration of the commonplaces of british politics in the light of his indian experience. he wished, he says in one of his letters, to write about india; but as soon as he began he felt that he would be challenged to give his views upon these preliminary problems: what do you think of liberty, of toleration, of ruling by military force, and so forth? he resolved, therefore, to answer these questions by themselves. i must add that this feeling was coloured by fitzjames's personal qualities. he could never, as i have pointed out, like mill himself; he pronounced him to be 'cold as ice,' a mere 'walking book,' and a man whose reasoning powers were out of all proportion to his 'seeing powers.' if i were writing about mill i should think it necessary to qualify this judgment of a man who might also be described as sensitive to excess, and who had an even feminine tenderness. but from fitzjames's point of view the judgment was natural enough. the two men could never come into cordial relations, and the ultimate reason, i think, was what i should call mill's want of virility. he might be called 'cold,' not as wanting in tenderness or enthusiasm, but as representing a kind of philosophical asceticism. whether from his early education, his recluse life, or his innate temperament, half the feelings which moved mankind seemed to him simply coarse and brutal. they were altogether detestable--not the perversions which, after all, might show a masculine and powerful nature. mill's view, for example, seemed to be that all the differences between the sexes were accidental, and that women could be turned into men by trifling changes in the law. to a man of ordinary flesh and blood, who had grounded his opinions, not upon books, but upon actual experience of life, such doctrines appear to be not only erroneous, but indicative of a hopeless thinness of character. and so, again, fitzjames absolutely refused to test the value of the great patriotic passions which are the mainsprings of history by the mere calculus of abstract concepts which satisfied mill. fitzjames, like henry viii., 'loved a man,' and the man of mill's speculations seemed to be a colourless, flaccid creature, who required, before all things, to have some red blood infused into his veins. utilitarianism of the pedantic kind--the utilitarianism which substitutes mere lay figures for men and women--or the utilitarianism which refuses to estimate anything that cannot be entered in a ledger, was thus altogether abhorrent to fitzjames. and yet he was, in his way, a utilitarian in principle; and his reply to mill must be given in terms of utilitarianism. to do that, it was only necessary to revert to the original principles of the sect, and to study austin and bentham with a proper infusion of hobbes. then it would be possible to construct a creed which, whatever else might be said of it, was not wanting in vigour or in danger of substituting abstractions for concrete realities. i shall try to indicate the leading points of this doctrine without following the order partly imposed upon fitzjames by his controversial requirements. nor shall i inquire into a question not always quite clear, namely, whether his interpretation of mill's principles was altogether correct. one fundamental ground is common to fitzjames and his antagonist. it is assumed in austin's analysis of 'law,' which is accepted by both.[ ] law properly means a command enforced by a 'sanction.' the command is given by a 'sovereign,' who has power to reward or punish, and is made effectual by annexing consequences, painful or pleasurable, to given lines of conduct. the law says, 'thou shalt not commit murder'; and 'shalt not' means 'if you commit murder you shall be hanged.' nothing can be simpler or more obviously in accordance with common sense. abolish the gaoler and the hangman and your criminal law becomes empty words. moreover, the congeniality of this statement to the individualist point of view is obvious. consider men as a multitude of independent units, and the problem occurs, how can they be bound into wholes? what must be the principle of cohesion? obviously some motive must be supplied which will operate upon all men alike. practically that means a threat in the last resort of physical punishment. the bond, then, which keeps us together in any tolerable order is ultimately the fear of force. resist, and you will be crushed. the existence, therefore, of such a sanction is essential to every society; or, as it may be otherwise phrased, society depends upon coercion. this, moreover, applies in all spheres of action. morality and religion 'are and always must be essentially coercive systems.'[ ] they restrain passion and restrain it by appealing to men's hopes and fears--chiefly to their fears. for one man restrained by the fear of the criminal law, a vast number are restrained by the 'fear of the disapprobation of their neighbours, which is the moral sanction, or by the fear of punishment in a future state of existence, which is the religious sanction, or by the fear of their own disapprobation, which may be called the conscientious sanction, and may be regarded as a compound case of the other 'two.'[ ] an objection, therefore, to coercion would be an objection to all the bonds which make association possible; it would dissolve equally states, churches, and families, and make even the peaceful intercourse of individuals impossible. in point of fact, coercion has built up all the great churches and nations. religions have spread partly by military power, partly by 'threats as to a future state,'[ ] and always by the conquest of a small number of ardent believers over the indifferent mass. men's lives are regulated by customs as streams are guided by dams and embankments. the customs like the dams are essentially restraints, and moreover restraints imposed by a small numerical minority, though they ultimately become so familiar to the majority that the restraint is not felt. all nations have been built up by war, that is, by coercion in its sternest form. the american civil war was the last and most striking example. it could not ultimately be settled by conveyancing subtleties about the interpretation of clauses in the constitution, but by the strong hand and the most energetic faith.[ ] war has determined whether nations are to be and what they are to be. it decides what men shall believe and in what mould their religion, laws, morals, and the whole tone of their lives shall be cast.[ ] nor does coercion disappear with the growth of civilisation. it is not abolished but transformed. lincoln and moltke commanded a force which would have crushed charlemagne and his paladins and peers like so many eggshells.[ ] scott, in the 'fair maid of perth,' describes the 'devil's dick of hellgarth' who followed the laird of wamphray, who rode with the lord of johnstone, who was banded with the earl of douglas, and earl, and lord, and laird, and the 'devil's dick' rode where they pleased and took what they chose. does that imply that scotland was then subject to force, and that now force has disappeared? no; it means that the force that now stands behind a simple policeman is to the force of douglas and his followers as the force of a line of battle ship to the force of an individual prize-fighter.[ ] it works quietly precisely because it is overwhelming. force therefore underlies and permeates every human institution. to speak of liberty taken absolutely as good is to condemn all social bonds. the only real question is in what cases liberty is good, and how far it is good. buckle's denunciation of the 'spirit of protection' is like praising the centrifugal and reviling the centripetal force. one party would be condemning the malignity of the force which was dragging us all into the sun, and the other the malignity of the force which was driving us madly into space. the seminal error of modern speculation is shown in this tendency to speak as advocates of one of different forces, all of which are necessary to the harmonious government of conduct.[ ] this insistence upon the absolute necessity of force or coercion, upon the theory that, do what you will, you alter only the distribution, not the general quantity of force, is the leading principle of the book. compulsion and persuasion go together, but the 'lion's share' of all the results achieved by civilisation is due to compulsion. parliamentary government is a mild and disguised form of compulsion[ ] and reforms are carried ultimately by the belief that the reformers are the strongest. law in general is nothing but regulated force,[ ] and even liberty is from the very nature of things dependent upon power, upon the protection, that is, of a powerful, well-organised intelligent government.[ ] hobbes's state of war simply threw an unpopular truth 'into a shape likely to be misunderstood.' there must be war, or evils worse than war. 'struggles there must always be unless men stick like limpets or spin like weathercocks.'[ ] hence we have our problem: liberty is good, not as opposed to coercion in general, but as opposed to coercion in certain cases. what, then, are the cases? force is always in the background, the invisible bond which corresponds to the moral framework of society. but we have still to consider what limits may be laid down for its application. the general reply of a utilitarian must of course be an appeal to 'expediency.' force is good, says fitzjames, following bentham again, when the end to be attained is good, when the means employed are efficient, and when, finally, the cost of employing them is not excessive. in the opposite cases, force of course is bad. here he comes into conflict with mill. for mill tries to lay down certain general rules which may define the rightful limits of coercive power. now there is a _prima facie_ ground of suspicion to a sound utilitarian about any general rules. mill's rules were of course regarded by himself as based upon experience. but they savoured of that absolute _à priori_ method which professes to deduce principles from abstract logic. here, therefore, he had, as his opponent thought, been coquetting with the common adversary and seduced into grievous error. a great part of the argument comes to this: mill advocates rules to which, if regarded as practical indications of certain obvious limitations to the utility of government interference, fitzjames has no objection. but when they are regarded as ultimate truths, which may therefore override even the principle of utility itself, they are to be summarily rejected. thus, as we shall see, the practical differences are often less than appears. it is rather a question of the proper place and sphere of certain rules than of their value in particular cases. yet at bottom there is also a profound divergence. i will try to indicate the main points at issue. mill's leading tenet has been already stated; the only rightful ground of coercing our neighbours is self-protection. using the benthamite terminology, we may say that we ought never to punish self-regarding conduct, or again interpolating the utilitarian meaning of 'ought' that such punishment cannot increase the general happiness. fitzjames complains that mill never tries to prove this except by adducing particular cases. any attempt to prove it generally, would, he thinks, exhibit its fallacy. for, in brief, the position would really amount to a complete exclusion of the moral element from all social action. men influence each other by public opinion and by law. now if we take public opinion, mill admits, though he disputes the inference from the admission, that a man must suffer the 'inconveniences strictly inseparable from the unfavourable opinion of others.' but men are units, not bundles of distinct qualities, some self-regarding, and others 'extra-regarding.' everyone has the strongest interest in the character of everyone else. a man alone in the world would no more be a man than a hand without a body would be a hand.[ ] we cannot therefore be indifferent to character because accidentally manifested in ways which do or do not directly and primarily affect others. drunkenness, for example, may hurt a man's health or it may make him a brute to his wife or neglectful of his social duties. as moralists we condemn the drunkard, not the results of his conduct, which may be this or that according to circumstances. to regard mill's principle as a primary moral axiom is, therefore, contradictory. it nullifies all law, moral or other, so far as it extends. but if mill's admission as to the 'unfavourable opinions' is meant to obviate this conclusion, his theory merely applies to positive law. in that case it follows that the criminal law must be entirely divorced from morality. we shall punish men not as wicked but as nuisances. to fitzjames this position was specially repulsive. his interest in the criminal law was precisely that it is an application of morality to conduct. make it a mere machinery for enabling each man to go his own way, virtuous or vicious, and you exclude precisely the element which constituted its real value. mill, when confronted with some applications of his theory, labours to show that though we have no right to interfere with 'self-regarding' vice, we may find reasons for punishing conspiracies in furtherance of vice. 'i do not think,' replies fitzjames, 'that the state ought to stand bandying compliments with pimps.' it ought not to say that it can somehow find an excuse for calling upon them to desist from 'an experiment in living' from which it dissents. 'my feeling is that if society gets its grip on the collar of such a fellow, it should say to him, "you dirty fellow, it may be a question whether you should be suffered to remain in your native filth untouched, or whether my opinion should be printed by the lash on your bare back. that question will be determined without the smallest reference to your wishes or feelings, but as to the nature of my opinion about you there can be no doubt."'[ ] hence the purely 'deterrent' theory of punishment is utterly unsatisfactory. we should punish not simply to prevent crime, but to show our hatred of crime. criminal law is 'in the nature of a persecution of the grosser forms of vice, and an emphatic assertion of the principle that the feeling of hatred and the desire of vengeance above mentioned, (i.e. the emotion, whatever its proper name, produced by the contemplation of vice on healthily constituted minds) 'are important elements in human nature, which ought in such cases to be satisfied in a regular public and legal manner.[ ] this is one of the cases in which fitzjames fully recognises the importance of some of mill's practical arguments, though he disputes their position in the theory. the objections to making men moral by legislation are, according to him, sufficiently recognised by the benthamite criterion condemning inadequate or excessively costly means. the criminal law is necessarily a harsh and rough instrument. to try to regulate the finer relations of life by law, or even by public opinion, is 'like trying to pull an eyelash out of a man's eye with a pair of tongs: they may pull out the eye, but they will never get hold of the eyelash.'[ ] but it is not the end, but the means that are objectionable. fitzjames does not object in principle even to sumptuary laws. he can never, he says, look at a lace machine, and think of all the toil and ingenuity wasted, with patience.[ ] but he admits that repressive laws would be impossible now, though in a simpler age they may have been useful. generally, then, the distinction between 'self-regarding' and 'extra-regarding' conduct is quite relevant, so far as it calls attention to the condition of the probable efficacy of the means at our disposal. but it is quite irrelevant in a definition of the end. the end is to suppress immorality, not to obviate particular inconveniences resulting from immorality; and one great use of the criminal law is that, in spite of its narrow limitations, it supplies a solid framework round which public opinion may consolidate itself. the sovereign is, in brief, a great teacher of the moral law so far as his arm can reach. the same principles are applied in a part of the book which probably gave more offence than any other to his liberal opponents. the state cannot be impartial in regard to morals, for morality determines the bonds which hold society together. can it, then, be indifferent in regard to religions? no; for morality depends upon religion, and the social bond owes its strength to both. the state can be no more an impartial bystander in one case than in the other. the 'free church in a free state' represents a temporary compromise, not an ultimate ideal. the difference between church and state is not a difference of provinces, but a difference of 'sanctions.' the spiritual and the secular sanctions apply to the same conduct of the same men. both claim to rule all life, and are ultimately compelled to answer the fundamental questions. to separate them would be to 'cut human life in two,' an attempt ultimately impossible and always degrading. to answer fundamental questions, says mill, involves a claim to infallibility. no, replies fitzjames, it is merely a claim to be right in the particular case, and in a case where the responsibility of deciding is inevitably forced upon us. if the state shrinks from such decisions, it will sink to be a mere police, or, more probably, will at last find itself in a position where force will have to decide what the compromise was meant to evade. once more, therefore, the limits of state action must be drawn by expediency, not by an absolute principle. the benthamite formula applies again. is the end good, and are the means adequate and not excessively costly? mill's absolute principle would condemn the levy of a shilling for a school, if the ratepayer objected to the religious teaching. fitzjames's would, he grants, justify the inquisition, unless its doctrines could be shown to be false or the means of enforcing them excessive or inadequate--issues, he adds, which he would be quite ready to accept.[ ] has, then, a man who believes in god and a future life a moral right to deter others from attacking those doctrines by showing disapproval? yes, 'if and in so far as his opinions are true.'[ ] to attack opinions on which the framework of society depends is, and ought to be, dangerous. it should be done, if done at all, sword in hand. otherwise the assailant deserves the fate of the wanderer in scott's ballad: curst be the coward that ever he was born that did not draw the sword before he blew the horn.[ ] such opinions seem to justify persecution in principle. fitzjames discusses at some length the case of pontius pilate, to which i may notice he had often applied parallels from ram singh and other indian experiences. pontius pilate was in a position analogous to that of the governor of a british province. he decides that if pilate had acted upon mill's principles he would have risked 'setting the whole province in a blaze.' he condemns the roman persecutors as 'clumsy and brutal'; but thinks that they might have succeeded 'in the same miserable sense in which the spanish inquisition succeeded,' had they been more systematic, and then would at least not have been self-stultified. had the roman government seen the importance of the question, the strife, if inevitable, might have been noble. it would have been a case of 'generous opponents each working his way to the truth from opposite sides,' not the case of a 'touching though slightly hysterical victim, mauled from time to time by a sleepy tyrant in his intervals of fury.'[ ] still, it will be said, there would have been persecution. i believe that there was no man living who had a more intense aversion than fitzjames to all oppression of the weak, and, above all, to religious oppression. it is oddly characteristic that his main precedent is drawn from our interference with indian creeds. we had enforced peace between rival sects; allowed conversion; set up schools teaching sciences inconsistent with hindoo (and with christian?) theology; protected missionaries and put down suttee and human sacrifices. in the main, therefore, we had shown 'intolerance' by introducing toleration. fitzjames had been himself accused, on the occasion of his native marriages bill, with acting upon principles of liberty, fraternity, and equality. his point, indeed, is that a government, even nervously anxious to avoid proselytism, had been compelled to a upon doctrines inconsistent with the religions of its subjects. i will not try to work out this little logical puzzle. in fact, in any case, he would really have agreed with mill, as he admits, in regard to every actual question of the day. he admitted that the liberal contention had been perfectly right under the special circumstances. their arguments were quite right so long as they took the lower ground of expediency, though wrong when elevated to the position of ultimate principles, overruling arguments from expediency.[ ] toleration, he thinks, is in its right place as softening and moderating an inevitable conflict. the true ground for moral tolerance is that 'most people have no right to any opinion whatever upon these subjects,' and he thinks that 'the ignorant preacher' who 'calls his betters atheists is not guilty of intolerance, but of rudeness and ignorance.'[ ] i must confess that this makes upon me the impression that fitzjames was a little at a loss for good arguments to support what he felt to be the right mode of limiting his principles. the difficulty was due, i think, to the views which he shared with mill. the utilitarian point of view tends to lower the true ground of toleration, because it regards exclusively the coercive elements of law. i should hold that free thought is not merely a right, but a duty, the exercise of which should be therefore encouraged as well as permitted; and that the inability of the coarse methods of coercion to stamp out particular beliefs without crushing thought in general, is an essential part of the argument, not a mere accident of particular cases. our religious beliefs are not separate germs, spreading disease and capable of being caught and suppressed by the rough machinery of law, but parts of a general process underlying all law, and capable of being suppressed only at the cost of suppressing all mental activity. the utilitarian conception dwells too much upon the 'sanctions,' and too little on the living spirit, of which they are one expression. fitzjames's view may so far be summed up by saying that he denies the possibility of making the state a neutral in regard to the moral and religious problems involved. morality, again, coincides with 'utility '; and the utility of laws and conduct in general is the criterion which we must apply to every case by the help of the appropriate experience. we must therefore reject every general rule in the name of which this criterion may be rejected. this applies to mill's doctrine of equality, as well as to his doctrine of non-interference. i pass over some comparatively commonplace remarks upon the inconsistency of 'liberty' and 'equality.' the most unequivocal contradiction comes out in regard to mill's theory of the equality of the sexes. there was no dogma to which mill was more attached or to which fitzjames was more decidedly opposed. the essence of the argument, i take it, is this:[ ] a just legislator, says mill, will treat all men as equals. he must mean, then, that there are no such differences between any two classes of men as would affect the expediency of the applying the same laws to both. what is good for one must therefore be good for another. now, in the first place, as fitzjames urges, there is no presumption in favour of this hypothesis; and, in the next place, it is obviously untrue in some cases. differences of age, for example, must be taken into account unless we accept the most monstrous conclusions. how does this apply to the case of sex? mill held that the difference in the law was due simply to the superiority of men to women in physical strength. fitzjames replies that men are stronger throughout, stronger in body, in nerve and muscle, in mind and character. to neglect this fact would be silly; but if we admit it, we must admit its relevance to legislation. marriage, for example, is one of the cases with which law and morality are both compelled to deal. now the marriage contract necessarily involves the subordination of the weaker to the stronger. this, says fitzjames, is as clearly demonstrable as a proposition of euclid.[ ] for, either the contract must be dissoluble at will or the rule must be given to one, and if to one, then, as every one admits, to the husband. we must then choose between entire freedom of divorce and the subordination of the wife. if two people are indissolubly connected and differ in opinions, one must give way. the wife, thinks fitzjames, should give way as the seaman should give way to his captain; and to regard this as humiliating is a mark not of spirit but of a 'base, unworthy, mutinous disposition.'[ ] if, to avoid this, you made marriage dissoluble, you would really make women the slaves of their husbands. in nine cases out of ten, the man is the most independent, and could therefore tyrannise by the threat of dismissing his wife. by trying to forbid coercion, you do not really suppress it, but make its action arbitrary. he apologises to a lady in a letter referring to another controversy upon the same subject in which he had used rather strong language about masculine 'superiority.' 'when a beast is stirred up,' he says, 'he roars rather too loud,' and 'this particular beast loves and honours and worships women more than he can express, and owes most of the happiness of his life to them.' by 'superior' he only meant 'stronger'; and he only urges a 'division of labour,' and a correspondence between laws and facts. this was, i think, strictly true, and applies to other parts of his book. partly from pugnacity and partly from contempt of sentimentalism, he manages to put the harsher side of his opinions in front. this appears as we approach the ultimate base of his theory. i have spoken more than once of fitzjames's respect for hobbes. for hobbes's theory of sovereignty, and even its application by the ultramontane de maistre, had always an attraction for him. hobbes, with his logical thoroughness, seems to carry the foundations of policy down to the solid rock-bed of fact. life is a battle; it is the conflict of independent atoms; with differing aims and interests. the strongest, in one way or other, will always rule. but the conflict may be decided peacefully. you may show your cards instead of playing out the game; and peace may be finally established though only by the recognition of a supreme authority. the one question is what is to be the supreme authority? with de maistre it was the church; with fitzjames as with hobbes it was the state. the welfare of the race can only be secured by order; order only by the recognition of a sovereign; and when that order, and the discipline which it implies, are established, force does not cease to exist: on the contrary, it is enormously increased in efficacy; but it works regularly and is distributed harmoniously and systematically instead of appearing in the chaotic clashing of countless discordant fragments. the argument, which is as clear as euclid in the case of marriage, is valid universally. society must be indissoluble; and to be indissoluble must recognise a single ultimate authority in all disputes. peace and order mean subordination and discipline, and the only liberty possible is the liberty which presupposes such 'coercion.' the theory becomes harsh if by 'coercion' we mean simply 'physical force' or the fear of pain. a doctrine which made the hangman the ultimate source of all authority would certainly show brutality. but nothing could be farther from fitzjames's intention than to sanction such a theory. his 'coercion' really includes an appeal to all the motives which make peace and order preferable to war and anarchy. but it is, i also think, a defect in the book that he does not clearly explain the phrase, and that it slips almost unconsciously into the harsher sense. he tells us, for example, that 'force is dependent upon persuasion and cannot move without it.'[ ] nobody can rule without persuading his fellows to place their force at his disposal; and therefore he infers 'persuasion is a kind of force.' it acts by showing people the consequences of their conduct. he calls controversy, again, an 'intellectual warfare,' which, he adds, is far more searching and effective than legal persecution. it roots out the weaker opinion. and so, when speaking of the part played by coercion in religious developments, he says that 'the sources of religion lie hid from us. all that we know is that now and again in the course of ages someone sets to music the tune which is haunting millions of ears. it is caught up here and there, and repeated till the chorus is thundered out by a body of singers able to drown all discords, and to force the unmusical mass to listen to them.'[ ] the word 'force' in the last sentence shows the transition. undoubtedly force in the sense of physical and military force has had a great influence in the formation both of religions and nations. we may say that such force is 'essential'; as a proof of the energy and often as a condition of the durability of the institutions. but the question remains whether it is a cause or an effect; and whether the ultimate roots of success do not lie in that 'kind of force' which is called 'persuasion'; and to which nobody can object. if coercion be taken to include enlightenment, persuasion, appeals to sympathy and sentiment, and to imagination, it implies an ultimate social groundwork very different from that generally suggested by the word. the utilitarian and individualist point of view tends necessarily to lay stress upon bare force acting by fear and physical pain. the utilitarian 'sanctions' of law must be the hangman and the gaoler. so long as society includes unsocial elements it must apply motives applicable to the most brutal. the hangman uses an argument which everyone can understand. in this sense, therefore, force must be the ultimate sanction, though it is equally true that to get the force you must appeal to motives very different from those wielded by the executioner. the application of this analogy of criminal law to questions of morality and religion affects the final conclusions of the book. fitzjames's whole position, if i have rightly interpreted him, depends essentially upon his moral convictions. the fault which he finds with mill is precisely that mill's theory would unmoralise the state. the state, that is, would be a mere association for mutual insurance against injury instead of an organ of the moral sense of the community. what, then, is morality? how are we to know what is right and wrong, and what are our motives for approving and disapproving the good and the bad? fitzjames uses phrases, especially in his letters, where he is not arguing against an adversary, which appear to be inconsistent, if not with utilitarianism, at least with the morality of mere expediency. lord lytton, some time after this, wrote to him about his book, and he replies to the question, 'what is a good man?'--'a man so constituted that the pleasure of doing a noble thing and the pain of doing a base thing are to him the greatest of pleasures and pains.' he was fond, too, of quoting, with admiration, kant's famous saying about the sublimity of the moral law and the starry heavens. the doctrine of the 'categorical imperative' would express his feelings more accurately than bentham's formulæ. but his reasoning was different. he declares himself to be a utilitarian in the sense that, according to him, morality must be built upon experience. 'the rightness of an action,' he concludes, 'depends ultimately upon the conclusions at which men may arrive as to matters of fact.'[ ] this, again, means that the criterion is the effect of conduct upon happiness. here, however, we have the old difficulty that the estimate of happiness varies widely. fitzjames accepts this view to some extent. happiness has no one definite meaning, although he admits, in point of fact, there is sufficient resemblance between men to enable them to form such morality as actually exists. but is such morality satisfactory? can it, for example, give sufficient reasons for self-sacrifice--that is, neglect of my own happiness? self-sacrifice, he replies, in a strict sense, is impossible; for it could only mean acting in opposition to our own motives of whatever kind--which is an absurdity.[ ] but among real motives he admits benevolence, public spirit, and so forth, and fully agrees that they are constantly strong enough to overpower purely self-regarding motives. so far, it follows, the action of such motives may be legitimately assumed by utilitarians. he is, therefore, not an 'egoistic' utilitarian. he thinks, as he says in a letter referring to his book, that he is 'as humane and public-spirited as his neighbours.' a man must be a wretched being who does not care more for many things outside his household than for his own immediate pains and pleasures. had he been called upon to risk health or life for any public object in india, and failed to respond, he would never have had a moment's peace afterwards. this was no more than the truth, and yet he would sometimes call himself 'selfish' in what i hold to be a non-natural sense. he frequently complains of the use of such words as 'selfishness' and 'altruism' at all. selfishness, according to him, could merely mean that a man acts from his own motives, and altruism would mean that he acted from somebody else's motives. one phrase, therefore, would be superfluous, and the other absurd. he insists, however, that, as he puts it, 'self is each man's centre, from which he can no more displace himself than he can leap off his own shadow.'[ ] since estimates of happiness differ, the morality based upon them will also differ.[ ] and from selfishness in this sense two things follow. first, i have to act upon my own individual conception of morality. if, then, i meet a person whose morality is different from mine, and who justifies what i hold to be vices, i must behave according to my own view. if i am his ruler, i must not treat him as a person making a possibly useful experiment in living, but as a vicious brute, to be restrained or suppressed by all available means. and secondly, since self is the centre, since a 'man works from himself outwards,' it is idle to propose a love of humanity as the guiding motive to morality. 'humanity is only "i" writ large, and zeal for humanity generally means zeal for my notions as to what men should be and how they should live.'[ ] this, therefore, leads to the ultimate question: what, in the utilitarian phrase, is the 'sanction' of morality? here his answer is, on one side at least, emphatic and unequivocal. mill and the positivists, according to him,[ ] propose an utterly unsatisfactory motive for morality. the love of 'humanity' is the love of a mere shadowy abstraction. we can love our family and our neighbours; we cannot really care much about the distant relations whom we shall never see. nay, he holds that a love of humanity is often a mask for a dislike of concrete human beings. he accuses mill of having at once too high and too low an opinion of mankind.[ ] mill, he thinks, had too low an estimate of the actual average englishman, and too high an estimate of the ideal man who would be perfectly good when all restraints were removed. he excused himself for contempt of his fellows by professing love for an abstraction. to set up the love of 'humanity,' in fact, as a governing principle is not only impracticable, but often mischievous. a man does more good, as a rule, by working for himself and his family, than by acting like a 'moral don quixote,[ ] who is capable of making love for men in general the ground of all sorts of violence against men in particular.' indeed, there are many men whom we ought not to love. it is hypocrisy to pretend to love the thoroughly vicious. 'i do not love such people, but hate them,' says fitzjames; and i do not want to make them happy, because i could only do so by 'pampering their vices.'[ ] here, therefore, he reaches the point at which his utilitarian and his puritanical prepossessions coincide. all law, says the utilitarian, implies 'sanctions'--motives equally operative upon all members of society; and, as the last resort, so far as criminal law is concerned, the sanction of physical suffering. what is the corresponding element in the moral law? to this, says fitzjames, no positivist can give a fair answer. he has no reply to anyone who says boldly, 'i am bad and selfish, and i mean to be bad and selfish.'[ ] the positivists can only reply, 'our tastes differ.' the great religions have answered differently. we all know the christian answer, and 'even the buddhists had, after a time, to set up a hell.' the reason is simple. you can never persuade the mass of men till you can threaten them. religions which cannot threaten the selfish have no power at all; and till the positivists can threaten, they will remain a mere 'ritualistic social science association.' briefly, the utilitarian asks, what is the sanction of morality? and the puritan gives the answer, hell. here, then, apparently, we have the keystone of the arch. what is the good of government in general? to maintain the law? and what is the end of the law? to maintain morality. and why should we maintain morality? to escape hell. this, according to some of his critics, was fitzjames's own conclusion. it represents, perhaps in a coarse form, an argument which fitzjames was never tired of putting since the days when he worked out the theory of hell at school. it would, however, be the grossest injustice to him if i left it to be supposed for a moment that he accepted this version of his doctrine. he repudiated it emphatically; and, in fact, he modifies the doctrine so much that the real question is, whether he does not deprive it of all force. no one was more sensible of the moral objections to the hell of popular belief. he thought that it represented the creator as a cruel and arbitrary tyrant, whose vengeance was to be evaded by legal fictions. still, the absolute necessity of some 'sanction' of a spiritual kind seemed clear to him. without it, every religion would fall to pieces, as every system of government would be dissolved without 'coercion.' and this is the final conclusion of his book in chapters with which he was, as i find from his letters, not altogether satisfied. he explains in the preface to his second edition that the question was too wide for complete treatment in the limits. briefly the doctrine seems to be this. the utilitarian or positivist can frame a kind of commonplace morality, which is good as far as it goes. it includes benevolence and sympathy; but hardly gets beyond ordering men to love their friends and hate their enemies. to raise morality to a higher strain, to justify what it generally called self-sacrifice, to make men capable of elevated action, they require something more. that something is the belief in god and a future world. 'i entirely agree,' he says, 'with the commonplaces about the importance of these doctrines.'[ ] 'if they be mere dreams life is a much poorer and pettier thing, and mere physical comfort far more important than has hitherto been supposed. morality, he says, depends on religion. if it be asked whether we ought to rise beyond the average utilitarian morality, he replies, 'yes, if there is a god and a future state. no, if there is no god and no future state.'[ ] and what is to be said of those doctrines, the ultimate foundation, if not of an average morality, yet of all morality above the current commonplaces? here we have substantially the religious theory upon which i have already dwelt. he illustrates it here by quotations from mill, who admits the 'thread of consciousness' to be an ultimate inexplicability, and by a passage from carlyle, 'the greatest poet of the age,' setting forth the mystery of the 'me.' he believes in a being who, though not purely benevolent, has so arranged the universe, that virtue is the law prescribed to his creatures. the law is stern and inflexible, and excites a feeling less of love than of 'awful respect.' the facts of life are the same upon any theory; but atheism makes the case utterly hopeless. a belief in god is inextricably connected with a belief in morality, and if one decays the other will decay with it. still it is idle to deny that the doctrines are insusceptible of proof. 'faith says, i will, _though_ i am not sure; doubt says, i will not, _because_ i am not sure; but they both agree in not being sure.'[ ] he utterly repudiates all the attempts made by newman and others to get out of the dilemma by some logical device for transmuting a mere estimate of probabilities into a conclusion of demonstrable certitude. we cannot get beyond probabilities. but we have to make a choice and to make it at our peril. we are on a pass, blinded by mist and whirling snow. if we stand still, 'we shall be frozen to death. if we take the wrong road, we shall be dashed to pieces. we do not certainly know whether there is any right one. what must we do? "be strong and of a good courage." act for the best, hope for the best, and take what comes. above all let us dream no dreams and tell no lies, but go our way, wherever we may land, with our eyes open and our heads erect. if death ends all, we cannot meet it better. if not, let us enter the next scene with no sophistry in our mouths and no masks on our faces.'[ ] a conclusion of this kind could commend itself neither to the dogmatist who maintains the certainty of his theories, nor to the sceptic who regards them as both meaningless and useless. i have dwelt upon them so long because they seem to me to represent a substantially logical and coherent view which commended itself to a man of very powerful intellect, and which may be presumed to represent much that other people hold less distinctly. the creed of a strong man, expressed with absolute sincerity, is always as interesting as it is rare; and the presumption is that it contains truths which would require to be incorporated in a wider system. at any rate it represents the man; and i have therefore tried to expound it as clearly as i could. i may take it for granted in such references as i shall have to make in the following pages to my brother's judgment of the particular events in which he took part. mill himself said, according to professor bain,[ ] that fitzjames 'did not know what he was arguing against, and was more likely to repel than to attract.' the last remark, as professor bain adds, was the truest. mill died soon afterwards and made no reply, if he ever intended to reply. the book was sharply criticised from the positivist point of view by mr. harrison, and from mill's point of view by mr. john morley in the 'fortnightly review' (june and august ). fitzjames replied to them in a preface to a second edition in . he complains of some misunderstandings; but on the whole it was a fair fight, which he did not regret and which left no ill-feeling. iii. dundee election the last letter of the series had hardly appeared in the 'pall mall gazette,' when fitzjames received an application to stand for liverpool in the liberal interest. he would be elected without expense to himself. he thought, as he observes, that he should find parliamentary life 'a nuisance'; but a seat in the house might of course further both his professional prospects and his schemes of codification. he consulted coleridge, who informed him that, if government remained in office, a codification commission would be appointed. coleridge was also of opinion that, in that event, fitzjames's claims to a seat on the commission would be irresistible. as, however, it was intended that the commissioners should be selected from men outside parliament and independent of political parties, fitzjames would be disqualified by an election for liverpool. upon this he at once declined to stand. a place in a codification commission would, he said, 'suit him better than anything else in the world.' coleridge incidentally made the remark, which seems to be pretty obvious, that the authorship of the letters upon 'liberty, equality, fraternity' would be a rather awkward burthen for a liberal candidate to carry. for some time fitzjames might hope, though he hoped with trembling, that something would come of his various codifying projects. it was reported that mr. bruce (lord aberdare) would introduce the homicide bill during russell gurney's absence. coleridge was able after many delays to introduce the evidence bill. but it was crowded out of sight by more exciting measures, and it was only upon its final withdrawal on the last day of the session (august , ) that he could say a few words about it.[ ] the bill was apparently ordered to be printed, but never became public. it went to the parliamentary limbo with many of its brethren. in the session of the government was beginning to totter. the ministerial crisis of march, upon the defeat of the irish university bill, was followed by mr. gladstone's resignation. he returned to office, but had to attend to questions very different from codification. 'my castle of cards has all come down with a run,' writes fitzjames (march , ); 'gladstone is out of office; coleridge is going out; my evidence act and all my other schemes have blown up--and here am i, a briefless, or nearly briefless, barrister, beginning the world all over again.... i have some reason to think that, if gladstone had stayed in, i should, in a few weeks, have been solicitor-general, and on my way to all sorts of honour and glory.' however, he comforts himself with various proverbs. his favourite saying on these occasions, which were only too common, was 'patience, and shuffle the cards.' the gladstone ministry, however, was patched up, and things looked better presently. 'i am,' he says in may, 'in the queerest nondescript position--something between solicitor-general and mr. briefless--with occasional spurts of business' which look promising, but in frequency resemble angelic visits. on june he announces, however, that a whole heap of briefs 'has come in, and, to crown all, a solemn letter came yesterday from the lord chancellor, offering to appoint me to act as circuit judge in the place of lush, who stays in town to try that lump of iniquity, the claimant.' he was, accordingly, soon at the winchester assizes, making a serious experiment in the art of judging, and finding the position thoroughly congenial. he is delighted with everything, including chief baron kelly, a 'very pleasant, chatty old fellow,' who had been called to the bar fifty years before, and was still bright and efficient. fitzjames's duties exactly suit him. they require close attention, without excessive labour. he could judge for nine hours a day all the year round without fatigue. he gets up at . , and so secures two or three hours, 'reading his books with a quiet mind.' then there is the pleasure of choosing the right side, instead of having to take a side chosen by others; while 'the constant little effort to keep counsel in order, and to keep them also in good humour, and to see that all things go straight and well, is to me perfectly exquisite.' his practice in journalism has enabled him to take notes of the evidence rapidly, without delaying the witnesses; and he is conscious of doing the thing well and giving satisfaction. the leader of the circuit pays him 'a most earnest compliment,' declaring that the 'whole bar are unanimous in thinking the work done as well as possible. this,' he says, 'made me very happy, for i know, from knowing the men and the bar, it is just the case in which one cannot suspect flattery. if there are independent critics in this world, it is british barristers.' briefly, it is a delicious 'pisgah sight of palestine.' if, in indian phrase, he could only become 'pucka' instead of 'kucha'--a permanent instead of temporary judge--he would prefer it to anything in the world. he feels less anxious, and declares that he has 'not written a single article this week'; though he manages when work is slack, to find time for a little writing, such as the chapter in hunter's 'life of lord mayo.' the assizes were being held at salisbury soon afterwards, when fitzjames was summoned to london by a telegram from coleridge. coleridge had to tell him that if he could stand for dundee, where a vacancy had just occurred, he would probably be elected; and that, if elected, he would probably, though no pledge could be given, be made solicitor-general. lord romilly had retired from the mastership of the rolls in march. the appointment of his successor was delayed until the judicature act, then before parliament, was finally settled. as, however, coleridge himself or the solicitor-general, sir g. jessel, would probably take the place, there would be a vacancy in the law offices. fitzjames hesitated; but, after consulting lord selborne, and hearing coleridge's private opinion that he would be appointed solicitor-general even if he failed to win the seat, he felt that it would be 'faint-hearted' to refuse. he was to sit as judge, however, at dorchester, and thought that it would be improper to abandon this duty. the consequent delay, as it turned out, had serious effects. from dorchester he hurried off to dundee. he writes from dundee on sunday, july , , giving an account of his proceedings. he had been up till a.m. on the morning of the previous tuesday, and rose again at eight. he did not get to bed till a.m. on wednesday. he was up at six, went to dorchester, and attended a 'big dinner,' without feeling sleepy. on thursday he tried prisoners for four hours; then went to london, and 'rushed hither and thither' from p.m. till a.m. on friday. he was up again at six, left by the . train, reached dundee at . , and was worried by deputations till past twelve. part of the liberal party had accepted another candidate, and met him with a polite request that he would at once return to the place whence he came. he preferred to take a night's rest and postpone the question. on saturday he again 'rushed hither and thither' all day; spoke to , people for nearly two hours, was 'heckled' for another hour in stifling heat, and had not 'the slightest sensation of fatigue,' except a trifling headache for less than an hour. he was 'surprised at his own strength,' feeling the work less than he had felt the corresponding work at harwich in . the struggle lasted till august , the day of polling. fitzjames had to go through the usual experience of a candidate for a large constituency: speaking often six times a day in the open air; addressing crowded meetings at night; becoming involved in a variety of disputes, more or less heated and personal in their nature; and seeing from the inside the true nature of the process by which we manufacture legislators. it was the second election in dundee affected by disraeli's extension of the suffrage, and, i believe, the first election in the country which took place under the provisions of the ballot act. the work was hard and exciting, especially for a novice who had still to learn the art of speaking to large public meetings; but it was such work as many eager politicians would have enjoyed without reserve. to fitzjames it was a practical lesson in politics, to which he submitted with a kind of rueful resignation, and from which he emerged with intensified dislike of the whole system concerned. dundee was a safe liberal seat; the working classes under the new system had an overwhelming majority; and no tory candidate had ventured to offer himself.[ ] fitzjames was virtually the government candidate. one of his opponents, mr. yeaman, had been provost of dundee, but his fame does not appear to have spread beyond his native town. while fitzjames was lingering at dorchester another candidate had come forward, mr. edward jenkins, known as the author of 'ginx's baby.' this very clever little book, which had appeared a couple of years previously, had struck the fancy of the public, and run through a great number of editions. it reflected precisely the school of opinion which fitzjames most cordially despised. the morality was that of dickens's 'christmas carol,' and the political aim that of sentimental socialism. thus, though all three candidates promised to support mr. gladstone's government, one of fitzjames's rivals represented the stolid middle-class prejudices, and a second the unctuous philanthropic enthusiasm, which he had denounced with his whole force in 'liberty, equality, fraternity.' no combination could have been contrived which would have set before him more clearly the characteristics of the party of which he still considered himself to be a member. from the beginning he felt himself to be, in some respects, in a false position. 'my dislike of the business,' he says at starting, 'is not the least due to weakness or over-delicacy, but to a deep-rooted disgust at the whole system of elections and government by constituencies like this.' three days' experience do not change his view. it is, he says, 'hateful work--such a noise, such waste of time, such unbusinesslike, raging, noisy, irregular ways, and such intolerable smallness in the minds of the people, that i wonder i do not do it even worse.' he could scarcely stand a month of it for a certainty of the solicitor-generalship. on the day before the poll he observes that 'it is wretched, paltry work.' a local paper is full of extracts from his 'liberty, equality, fraternity,' which, he fears, will not help him. however, 'it was very good fun writing it.' and meanwhile, mr. jenkins was making speeches which showed that 'his heart beat in unison with the people's,' and speaking 'earnest words' on sunday afternoon to boys on a training ship. even an enthusiastic speech from one of fitzjames's supporters at a large meeting, which was followed by a unanimous vote of approval, 'nearly made him sick--it was so unspeakably fulsome.' it was no wonder that he should be inclined to be disgusted with the whole business. considering the general uncongeniality of the surroundings, the most remarkable thing was that he made so good a fight as he did. he was encouraged by the presence of his brother by adoption and affection, frederick gibbs. 'no one,' he reports, 'could be kinder or more sensible; and he is as cool as a cucumber, and not shocked by my cynical heresies.' from frederick gibbs, as he afterwards reports, he has received the 'best and wisest' advice on every point. the 'cynical heresies' to which he refers were simply those already expounded in his book. he said precisely what he thought, and as vigorously as he could say it. a campaign paper, called the 'torch,' published by some of his supporters, sums up the difference between him and mr. jenkins. 'mr. stephen's liberalism,' says the 'torch,' 'is much nearer to radicalism than the liberalism of mr. jenkins. mr. stephen's liberalism is the liberalism of self-help, of individualism, of every form of conscious industry and energy. it is the only liberalism which has the smallest chance of success in scotland. the liberalism of mr. jenkins is the liberalism of state aid, of self-abasement, of incapacity and indolence'; and leads straight to sentimental communism. according to a 'working man' who writes to the paper, mr. jenkins virtually proposes that the industrious part of the working classes are to support the children of the lazy, idle, and improvident--a principle which many people now seem inclined to regard as defensible. fitzjames's accounts of his own speeches are to the same purpose. he has repeated, he says, what he has always and everywhere maintained--that people must 'help themselves, and that every class of society is bound together, and is in one boat and on one bottom.' i have read the reports in the local newspapers, which fully confirm this statement; but i need only notice one point. he manages to get in a good word for codification, and illustrates his argument by an ingenious parallel with bradshaw's 'railway guide.' that 'code' is puzzling enough as it is; but what would be our state if we had to discover our route by examining and comparing all the orders given by the directors of railways from their origin, and interpreting them in accordance with a set of unwritten customs, putting special meanings upon the various terms employed? the educated classes, as the 'torch' asserts, and as his supporters told him, were entirely in his favour; and, had the old suffrage remained unaltered, no one else would have had a chance against him. not only so, but they declared that every speech he made was converting the working classes. he is told that, if he had longer time, he would be able to 'talk them all round.' his speeches obviously impressed his hearers for the time. 'you cannot imagine,' he says on august , 'how well i get on with the people here, working men as well as gentry. they listen with the deepest attention to all i say, and question me with the keenest intelligence.' he admits, indeed, that there is no political sympathy between him and his hearers. they want a 'thorough-going radical,' and he cannot pretend to be one--'it is forced out on all occasions.' in fact, he was illustrating what he had said in his book. he heartily liked the individual working man; but he had no sympathy with the beliefs which find favour with the abstract or collective working man, who somehow manages to do the voting. they seem to have admired his force, size, and manliness. 'eh, but ye're a wiselike mon ony way,' says a hideous old woman (as he ungratefully calls her), which, he is told, is the highest of scottish compliments to his personal appearance. this friendly feeling, and the encouragement of his supporters, and the success of his speeches, raised his hopes by degrees, and he even 'felt a kind of pride in it,' though 'it is poor work educating people by roaring at them.' towards the end he even thinks it possible that he may win, and, if so, 'it will be an extraordinary triumph, for i have never asked one single person to support me, and i have said the most unpopular things to such an extent that my supporters told me i was over-defiant, or, indeed, almost rude.' however, it was not to be. whether, as his friends said, he was too good for the place, or whether less complimentary reasons alleged by his opponents might be justified, he was hopelessly behind at the polls. he received , votes; mr. jenkins, , ; and mr. yeaman, , --or rather more than both his opponents together. fitzjames comforts himself by the reflection that both he and mr. jenkins had shown their true colours; that the respectable people had believed in him 'with a vengeance,' and that the working men were beginning to like him. but mr. jenkins's views were, and naturally must be, the most popular. fitzjames's chief supporter gave a dinner in his honour, when his health was drunk three times with boundless enthusiasm, and promises were made of the heartiest support on a future occasion. the fulfilment of the promises was not required; and fitzjames, in spite of occasional overtures, never again took an active part in a political contest. in , lord beaconsfield wrote to lord lytton: 'it is a thousand pities that j. f. stephen is a judge; he might have done anything and everything as leader of the future conservative party.' lord beaconsfield was an incomparably better judge than i can pretend to be of a man's fitness for such a position. the opinion, too, which he thus expressed was shared by some of fitzjames's friends, who thought that his masculine force of mind and downrightness of character would have qualified him to lead a party effectively. i shall only say that it is idle to speculate on what he might haw done had he received the kind of training which seems to be generally essential to success in political life. he might, no doubt, have learnt to be more tolerant of the necessary compromises and concessions to the feelings engendered by party government. as it was, he had, during his early life, taken so little interest in the political movements of the day, and, before he was dragged for a time into the vortex, had acquired so many prepossessions against the whole system, that i cannot but think that he would have found a difficulty in allying himself closely with any party. he considered the tories to be not much, if at all, better than the radicals; and he would, i fancy, have discovered that both sides had, in lowell's phrase, an equal facility for extemporising lifelong convictions. upon this, however, i need not dwell. in any case, i think that the dundee defeat was a blessing in disguise; for, had he been elected and found himself enlisted as a supporter of mr. gladstone, his position would have been almost comically inappropriate. a breach would, doubtless, have followed; and perhaps it would have been an awkward business to manage the transition with delicacy. fitzjames, in fact, discovered at dundee that he was not really a 'liberal' in the sense used in modern politics. his 'liberalism,' as the 'torch' said, meant something radically opposed to the ideas which were becoming dominant with the party technically called by the name. his growing recognition of a fact which, it may perhaps be thought, should have already been sufficiently obvious, greatly influenced his future career. meanwhile, he went back to finish his duties as commissioner at the assizes, and to reflect upon the lessons which, as he said, he had learnt at dundee. he had fresh ideas, he said, as to politics and the proper mode of treating them. he propounded some of his doctrines in a couple of lectures upon 'parliamentary government,' delivered to the edinburgh philosophical society in the following november.[ ] he describes some of the familiar consequences; shows how our administrative system has become an 'aggregate of isolated institutions'; and how the reduction of the royal power to a cipher has led to the substitution of a set of ministers, each a little king in his own department, and shifted backwards and forwards in obedience to popular sentiment. one result is the subordination to party purposes of important interests not essentially connected with them. at the present moment, he says, a disaster on the west coast of africa would affect the prospects of popular education. that is as rational as it would be to change your lawyer because you have had to discharge your cook. fitzjames, however, was under no illusions. he fully admits that parliamentary government is inevitable, and that foreign systems are in some respects worse, and, in any case, incapable of being introduced. he confines himself to suggesting that some departments of administration and legislation might be withdrawn from the influence of our party system. iv. codification in england fitzjames had returned to act again as commissioner at wells. there he had to listen to a vehement sermon from archdeacon denison, in favour of auricular confession, and glancing, as his hearer fancied, at a certain article in the 'pall mall gazette.' he had afterwards a pleasant chat with freeman, 'not a bad fellow at all,' though obviously a 'terrible pedant.' he hears from coleridge, who has finally decided against accepting the mastership of the rolls, and hopes that fitzjames may still be his colleague. the old chief baron is still charming, and says ('though i don't believe it') that he never knew what mental fatigue meant, and that when he was solicitor-general he was never in bed for more than two or three hours for four or five nights a week ('which, again, i do not believe'). however, it is undeniable that he can still do his work as well as many younger men. the chance of the solicitor-generalship was soon extinguished. coleridge was friendly, but explained that political considerations might prevent any attention being paid to his personal wishes. in september, in fact, sir henry james was appointed to the vacant post and the hope finally disappeared. there was still, however, a possibility of a seat on the bench, which would please him still better. he feels that his proper place is out of parliament. he could exercise more influence 'than all the solicitor-generals in the world' by simply devoting himself to writing, and he is full of plans for books. but he would like to be a judge for the sake both of the money and the work. 'the administration of justice is really the best thing which is going on in the nation.' on january , , however, he announces that his little 'bubble about the judgeship, which looked a very bright bubble indeed, has gone where all bubbles go.' twenty people had congratulated him upon his appointment and three judges had written to recommend clerks. last night he had heard decisively that he was not to have it. coleridge, too, had become lord chief justice and the government business had gone elsewhere. well, he will 'put on some extra work to keep hold of the wolf's ears which he has held so long.' coleridge, i may add, still took an interest in fitzjames's codification schemes, and they even agreed, or rather vaguely proposed, to act the parts of 'moses and aaron,' fitzjames inspiring measures of which coleridge was to take charge in the house of lords. this dream, however, vanished like others. the dissolution of parliament in january, , was followed by a general election. proposals were made to fitzjames to stand at several places; including dundee, where, however, mr. jenkins was elected. for one reason or other he declined the only serious offers, and was 'not sorry.' he could not get over 'his dislike to the whole affair.' he 'loathed elections,' and 'could not stand the idea of parliament.' disraeli soon came into office, and 'the new ministry knew not joseph.' fitzjames had quite got over his disappointment about the judgeship, though he admits that he had at first felt it 'bitterly.' he has not known how to find favour with chancellors or ministers. he therefore resolves to make his own way; he cares more for what he is in himself than for the position he holds; and he reconciles himself 'to the prospect which obviously lies before him,' of obscure hard 'labour for a good many years.' he 'puts away all his fair hopes in his pocket, and resolves to do three things: a good bit of codifying,' whether on his own account or for government; a little book about india; and finally the _magnum opus_ which he had so long meditated, which he thought that he ought to begin when he was fifty (he was at this time just forty-five), and which might take about fifteen years. the little book about india is afterwards frequently mentioned in his letters under its proposed title, 'the english in india.' it was, i think, to be more or less historical, and to occupy some of the ground covered by sir alfred lyall's 'british dominion in india.' it never took definite shape, but led to the work upon impey, of which i shall have to speak hereafter. meanwhile he is not without some good professional omens. he feels that he will have to 'restrict his circuiteering,' and not to go to most of the towns without special retainers. good work is coming to him in london, though not so frequently as might be wished. the codifying, in fact, took up much of his time. the 'homicide bill' was introduced into parliament this year ( ) by russell gurney, and referred to a select committee. they consulted cockburn, bramwell, and blackburn, who appear to have been on the whole hostile. bramwell, however, declared that the bill was 'excellently drawn,' and in a friendly letter to fitzjames condemned the spirit of hostility in which it had been received by other judges. the main objection put forward by cockburn and accepted by the committee was the objection to a partial measure. the particular question of homicide involved principles applying to other parts of the criminal law; and a partial treatment would only serve to introduce confusion and doubt. the committee accordingly recommended that the bill should be dropped. fitzjames accepted this not as a reason for abandoning the attempt but for extending the scope of the proposed measure. the result will appear presently. the change of government was not altogether unfavourable. early in march he received instructions from lord salisbury, who had succeeded the duke of argyll at the india office, to consolidate the acts relating to the government of india. he set to work with his usual energy, and a statement prefixed to the printed draft of the bill is dated june , . in less than three months he had done a big piece of work. the consolidation of these laws had been in contemplation in england and india for some time. various preparations had been made by government, including a draft of the proposed act by mr. herman merivale, then permanent undersecretary at the india office. fitzjames, however, had to go through the whole, and, as he laments, without such help as he could have commanded from his subordinates in india. he prepared an elaborate schedule showing every unrepealed section of every act relating to india since . the 'kernel of the law' was contained in eight acts; the 'regulating act' of , the acts upon the successive renewal of the company's charter, and the acts passed upon the transference of the company's powers to the crown. as each of these had been superposed upon its predecessors without repealing them, it was necessary to go through them all to discover what parts were still in force; how far any law had been modified by later enactments, and what parts of the law it might be desirable to leave unaltered; and then to fuse the whole into unity. fitzjames proposes to repeal forty-three acts with the exception of certain sections, and to substitute for the repealed portions a single act of sections, shorter, as he remarks, than some of those repealed. the result would be to save a great deal of labour to hard-worked indian officials, who required to know the precise limits of their authority; and the act would form a complete constitutional code, determining the powers and the mutual relations of the whole indian administrative and legislative system. the draft was carefully criticised by the authorities. fitzjames himself went through it again in the following january with maine and sir erskine perry, and it was finally made ready to be laid before parliament. lord salisbury introduced in the following session a preparatory measure which would be incidentally required. this, however, was withdrawn in consequence, it seems, of objections made by the legislative council in india, and the whole code went to the usual limbo. i do not know what was the precise nature of the objection, but probably it was thought that the new law might stir up questions which it was better to leave in repose. anyhow, nothing came of it. 'you have done your work and got your fee, and what more do you want?' observed a cynical friend. to which fitzjames could only reply, ruefully enough, 'true, o king.' this task interrupted another upon which he had been engaged, and which he took up again as soon as it was finished. he writes upon july , , that his prospects have improved, and that he has therefore 'turned his mind to his books in real earnest.' they are a 'large family' and rather crowd upon him. however, his first enterprise will be 'a codification of the english law of contracts, founded upon the indian act, but larger and more elaborate in every way.' if the country takes to codifying (the dream had not yet vanished), this might become his profession. anyhow, he will be able to give his mind to what he really cares for. he had been already hard at work upon his 'contract book' in the winter before he was instructed to prepare the acts for the government of india. this task, i may observe, had led him to study some of the german jurists. he had perfected his german with the help of a master in the summer of his return, and was now able to read the language comfortably. he expresses at first sight anything but acquiescence in german claims to philosophical pre-eminence, but after a time he comes to understand the respect which austin professed for savigny. his study of the law of contracts was apparently broken off by a renewed call to take up once more the criminal law. of this i shall have to speak presently. the reference just quoted to improved prospects is to be explained by an influx of parliamentary business which took place at this time. he was leading counsel in the session of for the london, chatham and dover railway company, and appeared for them in several cases. the impression which he made upon professional observers has been reported to me by more than one competent witness. it is such as may be foreseen. 'you are bringing your steam hammer to crack a nut again,' was the remark made to one of them by a friend. admiration for his 'close reasoning, weighty argument, and high tone of mind,' is cordially expressed. he never threw a word away, always got to the core of a question, and drove his points well home. and yet he did not seem to be in the field best adapted for his peculiar gifts. he was too judicial, too reluctant to put a good face upon a bad cause, not enough of a rhetorician, and not sufficiently alert in changing front, or able to handle topics with the lightness of touch suitable to the peculiar tastes of a parliamentary committee. thus, though he invariably commanded respect, he failed to show the talent necessary for the more profitable, if not more exalted lines of professional success. business still continued to present itself in the most tantalising form; it came in gushes and spurts, falling absolutely dead at one moment and then unexpectedly reviving. he had occasionally successful circuits; but failed to step into the vacant place made by the elevation to the bench of his old tutor, lord field, in , and gradually went his rounds less regularly. meanwhile a good deal of business of a different kind presented itself. at the end of , i find him mentioning that he had eleven cases before the judicial committee of the privy council. he appeared in a good many colonial and indian appeals, and afterwards, as i shall have occasion to notice, in certain ecclesiastical cases. i do not think, however, that i need dwell upon this part of his career. one remark must be made. fitzjames was still doomed to be an illustration of the curious disproportion which may exist between a man's intrinsic power and his fitness for professional success. still, as at college, he was distanced in the race by men greatly his inferiors in general force of mind, but better provided with the talent for bringing their gifts to market. such a position was trying, for it was inevitable that he should be himself more conscious of his abilities than of his limitations. his incapacity for acquiring the dexterities by which men accommodate themselves to their neighbours' wants implied a tendency rather to under-estimate the worth, whatever it may be, of such dexterities. the obstacle to his success was just the want of appreciation of certain finer shades of conduct, and therefore remained unintelligible to himself. he was like a painter of very keen and yet narrowly limited vision, who could not see the qualities which lead people to prefer the work of a long-sighted man. yet he not only never lost heart, but, so far as i can discover, was never for a moment querulous or soured. he was never for an instant in danger of becoming a 'man with a grievance.' he thought, of course, that his views were insufficiently appreciated; but he complained, not of individuals, but of general causes which were practically irremovable, and against which it was idle to fret. if, in writing to his closest friends, he indulges in a momentary grumble over the 'bursting of a bubble,' he always adds that he is ashamed of himself for the feeling, and emphatically declares himself to be one of the happiest and most fortunate of men. when, therefore, i report his various disappointments, i must be understood to imply that they never lowered his courage even in the most trifling degree, or threw over his course more than such passing fits of shadow as even the strongest man must sometimes traverse. nobody could have been cheerier, more resolute, or more convinced that his lines had fallen in pleasant places. v. the metaphysical society here i shall notice some of the employments in which he found distraction from the various worries of his career. in the first place, he had a boundless appetite for books. when he returned from india he rubbed up his old classical knowledge; and, though he had far too much sense to despise the help of 'cribs,' he soon found himself able to get on pretty well without them. he mentions a number of authors, homer, for example, and �schylus, who supplied a motto for 'liberty, equality, fraternity '; he reads demosthenes, partly with a view to greek law; dips into plato and aristotle, and is intensely interested by cicero's 'de natura deorum.' he declares, as i have said, that he cared little for literature in itself; and it is no doubt true that he was generally more interested in the information to be got from books than in the mode of conveying it. this, however, increases his appetite for congenial works. he admires gibbon enthusiastically; he has read the 'decline and fall' four or five times, and is always wishing to read it again. he can imagine no happier lot than to be able to devote oneself to the completion of such a book. he found it hard, indeed, to think of a novel or a poem as anything but a trifling though fascinating amusement. he makes an unfavourable criticism upon a novel written by a friend, but adds that it is 'not really unfavourable.' 'a great novel,' he explains, 'a really lasting work of art, requires the whole time and strength of the writer, ... and x. is too much of a man to go in for that.' after quoting milton's 'lycidas' and 'christmas hymn,' which he always greatly admired, he adds that he is 'thankful that he is not a poet. to see all important things through a magnifying glass of strange brilliant colours, and to have all manner of tunes continually playing in one's head, and i suppose in one's heart too, would make one very wretched.' a good commonplace intellect satisfied with the homely food of law and 'greedily fond of pastry in the form of novels and the like, is--well, it is at all events, thoroughly self-satisfied, which i suppose no real poet or artist ever was.' besides, genius generally implies sensitive nerves, and is unfavourable to a good circulation and a thorough digestion. these remarks are of course partly playful, but they represent a real feeling. a similar vein of reflection appears to have suggested a comment upon las casas' account of napoleon at st. helena. it is 'mortifying' to think that napoleon was only his own age when sent to st. helena. 'it is a base feeling, i suppose, but i cannot help feeling that to have had such gifts and played such a part in life would be a blessing and a delight greater than any other i can think of. i suppose the ardent wish to be stronger than other people, and to have one's own will as against them, is the deepest and most general of human desires. if it were a wish which fulfilled itself, how very strong and how very triumphant i should be;--but it does not.' for this atrocious wish, i must add, he apologises amply in a later letter. it is merely a passing velleity. in truth it represents his version of carlyle's doctrine about the superiority of silence to speech, or rather of the active to the contemplative life. the career of a great conqueror, a great legislator, a man who in any capacity has moulded the doctrines of the race, had a charm for his imagination which he could not find in the pleasant idlers, who beguile our leisure by singing songs and telling stories. men who affect the religions of mankind belong rather to the active than the contemplative class. nobody could estimate more highly the importance of philosophical speculations upon the great problems of life. to write a book which should effectively present his own answer to those problems was his permanent ambition. even in going to india, he said, he had been moved partly by the desire of qualifying himself by fresh experience for such a work, which had been consciously before him ever since he left college. he was never able to carry out the plan which was very frequently in his thoughts. certain articles, however, written about this time, sufficiently indicate his general conclusions, and i therefore shall here give some account of them. they were all more or less connected with that curious body called the 'metaphysical society.' a description of this institution was given in the 'nineteenth century' for august by mr. r. h. hutton, who represents the discussions by an imaginary conversation between the chief debaters. mr. knowles prefixed a brief historical account. the society was founded in consequence of a conversation between tennyson and mr. knowles, and held its first meeting on april , . fitzjames joined it after his return from india. the scheme of the founders was to provide an arena in which the most important religious problems should be discussed with the same freedom with which other problems are, or ought to be discussed in the learned and scientific societies. perhaps some light might be thrown upon the question whether we have immortal souls, in which tennyson was much interested. many very distinguished men became members, and after a friendly dinner discussed papers which had been circulated for consideration. cardinal manning, w. g. ward, and father dalgairns were the chief representatives of catholicism; professors huxley, tyndall, and w. k. clifford of a scientific agnosticism; mr. frederic harrison of positivism; and dr. martineau, mr. ruskin, mr. r. h. hutton, of various shades of rational theology. there were others, such as mark pattison and professor henry sidgwick, whom i should shrink from putting into any definite class. mr. gladstone, lord selborne, and fitzjames may perhaps be described as intelligent amateurs, who, though occupied with more practical matters, were keenly interested in philosophical speculations. these names are enough to show that there was no lack of debating talent. fitzjames took the liveliest interest in these discussions, to which at various times he contributed papers upon 'necessary truths,' 'mysteries,' the 'proof of miracles,' the 'effect upon morality of a decline in religious faith,' and the 'utility of truth.' he enjoyed some vigorous encounters with various opponents: and according to mr. hutton his 'mighty bass' exercised 'a sort of physical authority' over his hearers. the meetings were of course strictly private; and reports of the debates, had reports been possible, would have been a breach of confidence. yet as the society has excited a certain interest, i will venture to record part of my impressions. i was not a member of the society in its early, and, as i take it, most flourishing days; and i only once, for example, heard a few words from w. g. ward, who was then one of the more conspicuous interlocutors. but i had the honour of membership at a later period, and formed a certain estimate of the performances. i remarked, in the first place, what was not strange, that nobody's preconceived opinions were changed, nor even, so far as i know, in the smallest degree affected by the discussions. nor were they calculated to affect any serious opinions. had any young gentleman been present who had sat at the feet of t. h. green or of professor sidgwick, and gained a first class at either university, he would, as i always felt, have remarked that the debaters did not know what they were talking about. so far as the discussions were properly metaphysical, the remark would have been more than plausible. with certain conspicuous exceptions, which i shall not specify, it was abundantly clear that the talk was the talk of amateurs, not of specialists. i do not speak from conjecture when i say, for example, that certain eminent members of the society had obviously never passed that 'asses' bridge' of english metaphysics, the writings of bishop berkeley, and considered his form of idealism, when it was mentioned, to be a novel and startling paradox. it was, i fancy, a small minority that had ever really looked into kant; and hegel was a name standing for an unknown region wrapped in hopeless mist. this would be enough to disenchant any young gentleman fresh from his compendiums of philosophy. persons, he would think, in so hopeless a state of ignorance could no more discuss metaphysics to any purpose than men who had never heard of the teaching of newton or darwin could discuss astronomy or biology. it was, in fact, one result of the very varying stages of education of these eminent gentlemen that the discussions became very ambiguous. some of the commonest of technical terms convey such different meanings in different periods of philosophy that people who use them at random are easily set at hopelessly cross-purposes.... 'object' and 'subject,' 'intuition,' 'experience,' and so forth, as used by one set of thinkers, are to others like words in an unknown language which they yet do not know to be unknown. if metaphysics were really a separate and independent science upon which experts alone had a right to speak, this remark would be a sufficient criticism of the society. it called itself metaphysical, and four out of five of its members knew nothing of metaphysics. a defence, however, might be fairly set up. some of the questions discussed were independent of purely metaphysical inquiries. and it may be denied, as i should certainly deny, that experts in metaphysics have any superiority to amateurs comparable to that which exists in the established sciences. recent philosophers have probably dispersed some fallacies and cleared the general issues; but they are still virtually discussing the old problems. to read plato, for example, is to wonder almost equally at his entanglement in puerile fallacies and at his marvellous perception of the nature of the ultimate and still involved problems. if we could call up locke or descartes from the dead in their old state of mind, we might still be instructed by their conversation, though they had never heard of the later developments of thought. and, for a similar reason, there was a real interest in the discussion of great questions by political, or legal, or literary luminaries, who had seen men and cities and mixed in real affairs and studied life elsewhere than in books, even though as specialists they might be probably ignorant. the difference was rather, perhaps, a difference of dialect than of substance. their weapons were old-fashioned; but the main lines of attack and defence were the same. another criticism, however, was obvious, and is, i think, sufficiently indicated in mr. hutton's imaginary conversation. the so-called discussions were necessarily in the main a series of assertions. each disputant simply translated the admitted facts into his own language. the argument came to saying, i say ditto to hume, or to comte, or to thomas aquinas. after a brief encounter, one man declared that he believed in god, and his opponent replied, i don't. it was impossible really to get further. it was not a difference between two advocates agreed upon first principles and disputing only some minor corollary, but a manifestation of different modes of thought, and of diverging conceptions of the world and of life, which had become thoroughly imbedded in the very texture of the speaker's mind. when it is a question of principles, which have been the battle-ground of generations; when every argument that can be used has been worked out by the subtlest thinkers of all times, a dispute can really come to nothing but saying, i am of this or that turn of mind. the real discussion of such questions is carried on by a dialectical process which lasts through many generations, and is but little affected by any particular champion. thus the general effect necessarily was as of men each securely intrenched in his own fastness, and, though they might make sallies for a little engagement in the open, each could retreat to a position of impregnable security, which could be assaulted only by long siege operations of secular duration. it was, i fancy, a gradual perception of these difficulties which led to the decay of the society. meanwhile there were many pleasant meetings, and, if the discussions came to be little more than a mutual exhibition to each other of the various persons concerned, i hope and believe that each tended to the conviction that his antagonist had neither horns nor hoofs. the discussions, moreover, produced a considerable crop of magazine articles; and helped to spread the impression that certain very important problems were being debated, upon the decision of which immense practical consequences might depend. it might be curious to inquire how far the real interest in these arguments extended, and whether the real state of the popular mind is a vivid interest in the war between scientific theories and traditional beliefs, or may more fitly be described as a languid amusement in outworn problems. fitzjames, at any rate, who always rejoiced, like cromwell's pikemen, when he heard the approach of battle, thought, as his letters show, that the forces were gathering on both sides and that a deadly struggle was approaching. the hostility between the antagonists was as keen as it had been in the sixteenth and seventeenth centuries, though covered for the present by decent pretences of mutual toleration. he contributed during this period a paper upon newman's 'grammar of assent' to 'fraser's magazine'; and he wrote several articles, partly the product of the metaphysical society, in the 'contemporary review' and the 'nineteenth century,' both under the editorship of mr. knowles. i shall speak of them so far as they illustrate what was, i think, his definite state of mind upon the matters involved. his chief encounters were with cardinal manning ('contemporary review,' march and may ), and with w. g. ward ('contemporary review,' december ), and with mr. gladstone ('nineteenth century,' april ). the controversy with mr. gladstone turned upon certain points raised in sir g. c. lewis's book upon 'authority in matters of opinion.' the combatants were so polite, and their ultimate difference, which was serious enough, was so mixed up with discussions of lewis's meaning, that a consideration of the argument would be superfluous. the articles directed against manning, to which his antagonist replied in succeeding numbers of the review, were of more interest. the essence of fitzjames's argument was a revival of his old challenge to newman. he took occasion of a pamphlet by manning to ask once more the very pertinent question: you claim to represent an infallible and supernatural authority which has indefeasible rights to my allegiance; upon what grounds, then, is your claim based? to establish it, you have first to prove that we have such a knowledge of god as will enable us to draw special inferences as to particular institutions; next, that christ was an incarnation of that god; then, that christ founded a particular institution; and, finally, that the institution was identical with the catholic church. the argument covers a very wide ground; and i think that fitzjames never wrote with more concentrated vigour. i have a certain difficulty in speaking of manning's reply; because it has apparently come to be understood that we are bound to pay insincere compliments to a good man's understanding when he disagrees with our views. now i am quite willing to admit that manning was a most amiable and well-meaning person; but i am unable to consider him seriously as a reasoner. the spectacle which he presented on this occasion, at least, was that of a fluent popular preacher, clutched by a powerful logician, and put into a witness-box to be thoroughly cross-examined. the one quality i can discover in his articles is a certain dexterity in evading plain issues and covering inconsistencies by cheap rhetoric. the best suggestion to be made on his side would be that he was so weak an advocate that he could not do justice to the argument. the controversy with w. g. ward was of different character. ward, with his usual courtesy to intellectual antagonists, had corresponded with fitzjames, in whose writings he was much interested. he now challenged his opponent to republish a paper upon 'necessary truths,' which had been read to the metaphysical society. fitzjames accordingly reproduced it with a comment, and ward replied in the next number. ward was undoubtedly a man of much dialectical ability, and, i think, in some directions more familiar than his opponent with metaphysical subtleties. fitzjames considered himself to have had the best of the argument, and says that the 'tablet' admitted his superiority. i presume, however, that ward would have returned the opposite verdict. i am the less inclined to pronounce any opinion because i believe that most competent people would now regard the whole discussion as turning upon a false issue. in fact, it was the old question, so eagerly debated by j. s. mill and ward, as to the existence of intuitions and 'necessary truths.' neither mill's empiricism nor ward's belief in intuitions 'in the sense required' would, i fancy, be now regarded as satisfactory. i think that fitzjames was greatly superior in vigour of expression; but the argument is not one to be answered by a single yes or no. i cannot even touch such controversies here. my only desire is to indicate fitzjames's intellectual attitude. it is sufficiently manifest in these articles. he argues that ward's position is really suicidal. certain things are pronounced by ward to be impossible even for omnipotence--as, for example, to make a trilateral figure which shall not be also triangular. carry out this view, says fitzjames, and you make our conceptions the measure of reality. mysteries, therefore, become nonsense, and miracles an impossibility. in fact, ward's logic would lead to spinoza, not to the deity of catholic belief. ward might retort that fitzjames's doctrines would lead to absolute scepticism or atheism. fitzjames, in fact, still accepts mill's philosophy in the fullest sense. all truth, he declares, may be reduced to the type, 'this piece of paper is blue, and that is white.' in other words, it is purely empirical and contingent. the so-called intuitive truths 'two and two make four' only differ from the truth, 'this paper is white' in that they are confirmed by wider experience. all metaphysical verbiage, says fitzjames, whether coleridge's or ward's, is an attempt to convert ignorance into superior kind of knowledge, by 'shaking up hard words in a bag.' since all our knowledge is relative to our faculties, it is all liable to error. all our words for other than material objects are metaphors, liable to be misunderstood--a proposition which he confirms from horne tooke's nominalism. all our knowledge, again, supposes memory which is fallible. all our anticipations assume the 'uniformity of nature,' which cannot be proved. and, finally, all our anticipations also neglect the possibility that new forces of which we know nothing may come into play. such convictions generally imply agnosticism as almost a necessary consequence. they might seem to show that what i have called the utilitarian element in his thoughts had effectually sapped the base of the puritanic element. i certainly think that this was to some extent the case. fitzjames had given up the belief that the gospel narrative could be proved after the paley method, and that was the only method which, according to him, was legitimate. he had, therefore, ceased to believe in the historical truth of christianity. after going to india he did not take part in church services, and he would not, i am sure, have used such language about his personal convictions as he used in all sincerity at the time of the 'essays and reviews' controversy. in short, he had come to admit that no belief in a supernatural revelation could be maintained in the face of modern criticism. he often read renan with great interest; renan, indeed, seemed to him to be sentimental, and too favourable to the view that a religion might have a certain artistic value independent of its truth. but he was as far as renan or as the most thorough-going of historical critics from believing in the divinity of christ or the truth of the christian inspiration. but, in spite of this, he still held to his version of the doctrine of probability. it is summed up in pascal's famous _il faut parier_. we can neither put aside the great religious questions nor give a positive answer to them. we must act on the hypothesis that one answer or the other is true; but we must not allow any juggling to transmute a judgment of probability into an undoubting conviction of truth. there are real arguments on both sides, and we must not ignore the existence of either. in the attack upon manning he indicates his reasons for believing in a god. he accepts the argument from final causes, which is, of course, the only argument open to a thorough empiricist, and holds that it is not invalidated, though it is, perhaps, modified by recent scientific inquiries. it is probable, therefore, that there is a god, though we cannot regard the point as proved in such a sense as to afford any basis for expecting or not expecting a revelation. on the contrary, all analogy shows that in theological, as in all other matters, the race has to feel its way gradually to truth through innumerable errors. in writing to a friend about the manning article he explains himself more fully. such articles, he says, give a disproportionate importance to the negative side of his views. his positive opinions, if 'vague, are at least very deep.' he cannot believe that he is a machine; he believes that the soul must survive the body; that this implies the existence of god; that those two beliefs make 'the whole difference between the life of a man and the life of a beast.' the various religions, including christianity, try to express these beliefs, and so long as they are honestly and simply believed are all good in various degrees. but when the creeds are held on the ground of their beauty or utility, not on the ground of their demonstrable truth, they become 'the most corrupt and poisonous objects in the world, eating away all force, and truth, and honour so far as their influence extends.' to propose such beliefs on any ground but the ground of truth, 'is like keeping a corpse above ground because it was the dearest and most beloved of all objects when it was alive.' he does not object to authority as such. he has no objection to follow a doctor's directions or to be loyal to an official superior, and would equally honour and obey anyone whom he could trust in religious questions. but he has never found such a guide. 'a guide is all very well if he knows the way, but if he does not, he is the most fatal piece of luggage in the world.' to use his favourite language, therefore, he still regarded a 'sanction' as absolutely necessary to the efficacy of moral or religious teaching. his constant criticism upon positivists and agnostics is that their creeds afford no satisfactory sanction. they cannot give to the bad man a reason for being good. but he was equally opposed to sham sanctions and sham claims to authority. as a matter of fact, his attack upon such claims led most people to classify him with the agnostics. nor was this without reason. he differed less in reality, i think, from professor huxley or mr. harrison than from ward or cardinal manning. in the arguments at the 'metaphysical society' he was on the left wing as against both catholics and the more or less liberal theologians, whose reasoning seemed to him hopelessly flimsy. his first principles in philosophy were those of the agnostics, and in discussing such principles he necessarily took their part. he once told mr. harrison that he did not wish to have any more controversies with him, because dog should not fight dog. he sympathised as heartily as any man could do in the general spirit of rationalism and the desire that every belief should be the outcome of the fullest and freest discussions possible. every attempt to erect a supernatural authority roused his uncompromising antagonism. so long as people agreed with him upon that point, they were at one upon the main issue. his feeling was apparently that expressed in the old phrase that he would go with them as far as hounslow though he did not feel bound to go to windsor. writing a few months later to the same correspondent, he observes that the difference between them is partly a difference of character. circumstances have developed in him a 'harsh and combative way of thinking and writing in these matters.' yet he had felt at times that it required so much 'effort of will to face dreary and unpleasant conclusions' that he could hardly keep his mind in the direction, or what he thought the direction, of truth without much pain. he could happily turn to neutral subjects, and had (i rather doubt the accuracy of the phrase) 'a peculiarly placid turn of mind.' he admits that a desire for knowledge is right and inevitable, but all experience shows our fallibility and the narrow limits of our knowledge. we know, however, that 'we are bound together by innumerable ties, and that almost every act of our lives deeply affects our friends' happiness.' the belief again (in the sense always of belief of a probability) in the fundamental doctrines of god and a future state imposes an 'obligation to be virtuous, that is, to live so as to promote the happiness of the whole body of which i am a member. is there,' he asks, 'anything illogical or inconsistent in this view?' at any rate, it explains his 'moral indignation' against roman catholicism. in the first place, catholicism claims 'miraculous knowledge' where there should be an honest confession of ignorance. this original vice has made it 'to the last degree dishonest, unjust, and cruel to all real knowledge.' it has been the enemy of government on rational principles, of physical science, of progress in morals, of all knowledge which tends to expose its fundamental fallacies. its theological dogmas are not only silly but immoral. the doctrines of hell, purgatory, and so forth, are not 'mysteries,' but perfectly unintelligible nonsense, first representing god as cruel and arbitrary, and then trying to evade the consequence by qualifications which make the whole 'a clumsy piece of patchwork.' god the father becomes a 'stern tyrant,' and god the son a 'passionate philanthropist.' practically his experience has confirmed this sentiment. he does 'really and truly love, at all events, a large section of mankind, though pride and a love of saying sharp things have made me, i am sorry to say, sometimes write as if i did not,' and whatever he has tried to do, he has found the roman catholic church 'lying straight across his path.' men who are intellectually his inferiors and morally 'nothing at all extraordinary,' have ordered him to take for granted their views upon law, morals, and philosophy, and when he challenges their claim can only answer that he is wicked for asking questions. he fully admits the beauty of some of the types of character fostered by the roman catholic church, although they imply a false view of certain cardinal points of morality, and argues that to some temperaments they may have a legitimate charm. but that does not diminish the strength of his convictions that the dogmas are radically absurd and immoral, or that the whole claim to authority is opposed to all rational progress. in the manning articles he ends by accepting the issue as between the secular view and the claims of a priesthood to authority. in the last resort it is a question whether state or church shall rule. he prefers the state, because it has more rational aims, uses more appropriate means, has abler rulers, produces verifiable results, and has generally 'less nonsense about it.' the clergy are 'male old maids'; often very clever, charitable, and of good intentions, but totally devoid of real wisdom or force of mind or character, and capable on occasions of any amount of spite, falsehood, and 'gentle cruelty.' it is impossible to accept the claims of the priesthood to supernatural authority. if ultimately a division has to be made, human reason will have to decide in what shape the legal sanction, 'or, in other words, disciplined and systematic physical force,' shall be used. we shall then come to the _ultima ratio_, after all compromises have been tried. there may be an inevitable conflict. the permanent principles of nature and society, which are beyond all laws, will decide the issue. but manning's is a mere quack remedy. this represents one aspect of fitzjames's character. the struggle which is going on is a struggle between priest and layman, mysticism and common sense, claims to supernatural authority and clear downright reasoning from experience, and upon all grounds of theory and practice he is unequivocally on the side of reason. i need only add a remark or two. in the first place, i think that he never materially altered this position, but he was rather less inclined after a time to take up the cudgels. he never lost a conviction of the importance of his 'sanction.' he always held to the necessity of some kind of religious belief, although the precise dogma to be maintained became rather more shadowy. but, as the discussion went on, he saw that in practice his own standing-ground was becoming weaker. the tendency of men who were philosophically on his own side was to regard the whole doctrine of a future life as not only beyond proof but beyond all legitimate speculation. hence he felt the force of the dilemma to which he was exposed. a genuine religion, as he says in a remarkable letter, must be founded, like all knowledge, on facts. now the religions which include a theology rest on no facts which can stand criticism. they are, therefore, doomed to disappear. but the religions which exclude theology--he mentions buddhism and positivism as examples--give no adequate sanction. hence, if theology goes, the moral tone of mankind will be lowered. we shall become fiercer, more brutal, more sensual. this, he admits, is a painful and even a revolting conclusion, and he therefore does not care to enlarge upon it. he is in the position of maintaining that a certain creed is at once necessary to the higher interests of mankind, and incapable of being established, and he leaves the matter there. i may just add, that fitzjames cared very little for what may be called the scientific argument. he was indifferent to darwinism and to theories of evolution. they might be of historical interest, but did not affect the main argument. the facts are here; how they came to be here is altogether a minor question. oddly enough, i find him expressing this opinion before the 'origin of species' had brought the question to the front. reviewing general jacob's 'progress of being' in the 'saturday review 'of may , , he remarks that the argument from development is totally irrelevant. 'what difference can it make,' he asks, 'whether millions of years ago our ancestors were semi-rational baboons?' this, i may add, is also the old-fashioned empirical view. mill, six years later, speaks of darwin's speculations, then familiar enough, with equal indifference. in this, as in other important matters, fitzjames substantially adhered to his old views. to many of us on both sides theories of evolution in one form or other seem to mark the greatest advance of modern thought, or its most lamentable divergence from the true line. to fitzjames such theories seemed to be simply unimportant or irrelevant to the great questions. darwin was to his mind an ingenious person spending immense labour upon the habits of worms, or in speculating upon what may have happened millions of years ago. what does it matter? here we are--face to face with the same facts. fitzjames, in fact, agreed, though i fancy unconsciously, with comte, who condemned such speculations as 'otiose.' to know what the world was a billion years ago matters no more than to know what there is on the other side of the moon, or whether there is oxygen in the remotest of the fixed stars. he looked with indifference, therefore, upon the application of such theories to ethical or political problems. the indication is, i think, worth giving; but i shall say nothing as to my own estimate of the importance of the theories thus disregarded. vi. the criminal code i return to the sphere upon which fitzjames spent his main energies, and in which, as i think, he did his most lasting work. three months of the spring of had been spent in consolidating the laws relating to the government of india. about the same time, i may observe parenthetically, he had a scheme for publishing his speeches in the legislative council; and, at one period, hoped that maine's might be included in the volume. the publishers, however, declined to try this experiment upon the strength of the english appetite for indian matters; and the book was dropped. he returned for a time to the contract law; but must soon have given up the plan. he writes on september , , that macmillan has applied to him for a new edition of his 'criminal law'; and that he has been reading for some time with a view to it. he has been labouring through , royal vo. pages of 'russell on crimes.' they are full of irrelevant illustrations; and the arrangement is 'enough to make one go crazy.' the 'plea of _autrefois acquit_ comes at the end of a chapter upon burglary'--a fact to make even the ignorant shudder! he would like to put into his book a penal code, a code of criminal procedure, and an evidence code. 'i could do it too if it were not too much trouble, and if a large part of the law were not too foolish to be codified.' he is, however, so convinced of the impracticability of parliamentary help or of a commission that he is much inclined to try. a fortnight later (october ) he has resolved to convert his second edition into a draft penal code and code of criminal procedure. the work grew upon his hands.[ ] he found crudities in the earlier work and a difficulty in stating the actual law from the absence of any adequate or tolerably arranged text-book. hence he resolved to make such a book for himself, and to this task he devoted nearly all of what he humorously called his leisure during the later part of and the whole of and . moreover, he thought for a time that it would be desirable to add full historical notes in order to explain various facts of the law. these, however, were ultimately set aside and formed materials for his later history. thus the book ultimately took the form simply of a 'digest of the criminal law,' with an explanatory introduction and notes upon the history of some of the legal doctrines involved. it was published in the spring of ,[ ] and, as he says in a letter, it represented the hardest work he had ever done. it coincided in part with still another hard piece of work. in december he was appointed professor of common law at the inns of court. he chose for the subject of his first course of lectures the law of evidence. his indian code and the bill introduced by coleridge in had made him thoroughly familiar with the minutiæ of the subject. here again he was encountered by the same difficulty in a more palpable shape. a lecturer naturally wishes to refer his hearers to a text-book. but the only books to which he could refer his hearers filled thousands of pages, and referred to many thousands of cases. the knowledge obtained from such books and from continual practice in court may ultimately lead a barrister to acquire comprehensive principles, or at least an instinctive appreciation of their application in particular cases. but to refer a student to such sources of information would be a mockery. he wants a general plan of a district, and you turn him loose in the forest to learn its paths by himself. fitzjames accordingly set to work to supply the want by himself framing a 'digest' of the english law of evidence. here was another case of 'boiling down,' with the difficulty that he has to expound a law--and often an irrational law--instead of making such a law as seems to him expedient. he undoubtedly boiled his materials down to a small size. the 'digest' in a fourth edition contains articles filling moderate pages, followed by a modest apparatus of notes. i believe that it has been found practically useful, and an eminent judge has told me that he always keeps it by him. fitzjames held his office of professor until he became a judge in . he had certainly one primary virtue in the position. he invariably began his lecture while the clock was striking four and ceased while it was striking five. he finally took leave of his pupils in an impressive address when they presented him with a mass of violets and an ornamental card from the students of each inn, with a kindly letter by which he was unaffectedly gratified. his class certainly had the advantage of listening to a teacher who had the closest practical familiarity with the working of the law, who had laboured long and energetically to extract the general principles embedded in a vast mass of precedents and technical formulas, and who was eminently qualified to lay them down in the language of plain common sense, without needless subtlety or affectation of antiquarian knowledge. i can fully believe in the truth of sir c. p. ilbert's remark that whatever the value of the codes in other respects, their educational value must be considerable. they may convince students that law is not a mere trackless jungle of arbitrary rules to be picked up in detail, but that there is really somewhere to be discovered a foundation of reason and common sense. it was one of fitzjames's favourite topics that the law was capable of being thus exhibited; and that fifty years hence it would be a commonplace that it would be treated in a corresponding spirit, and made a beautiful and instructive branch of science. the publication of these two books marked a rise in his general reputation. in the introduction to the 'digest of the criminal law' he refers to the rejection of his 'homicide bill.' the objections then assigned were equivalent to a challenge to show the possibility of codifying. he had resolved to show the possibility by actually codifying 'as a private enterprise.' the book must therefore be regarded as 'an appeal to the public at large' against the judgment passed upon his undertaking by parliament and by many eminent lawyers. he does not make the appeal 'in a complaining spirit.' the subject, he thinks, 'loses nothing by delay,' and he hopes that he has improved in this book upon the definitions laid down in his previous attempts. in connection with this i may mention an article which he contributed to the 'nineteenth century' for september upon a scheme for 'improving the law by private enterprise.' he suggests the formation of a council of 'legal literature,' to co-operate with the councils for law-reporting and for legal education. he sketches various schemes, some of which have been since taken up, for improving the law and legal knowledge. digests of various departments of the law might be of great service as preparing the way for codification and illustrating defects in the existing state of the law. he also suggests the utility of a translation of the year-books, the first sources of the legal antiquary; a continuation of the state trials, and an authentic collection of the various laws of the british empire. sir c. p. ilbert has lately drawn attention to the importance of the last; and the new state trials are in course of publication. the selden society has undertaken some of the antiquarian researches suggested. meanwhile his codification schemes were receiving a fresh impulse. when preparing the 'digest,' he reflected that it might be converted into a penal code. he communicated this view to the lord chancellor (cairns) and to sir john holker (afterwards lord justice holker), then attorney-general. he rejoiced for once in securing at last one real convert. sir john holker, he says, appreciated the scheme with 'extraordinary quickness.' on august , , he writes that he has just received instructions from the lord chancellor to draw bills for a penal code, to which he was soon afterwards directed to add a code of criminal procedure. he set to work, and traversed once more the familiar ground. the 'digest,' indeed, only required to be recast to be converted into a code. the measure was ready in june and was introduced into parliament by sir john holker in the session of . it was received favourably, and he reports that the chancellor and the solicitor-general, as well as the attorney-general, have become 'enthusiastic' in their approbation. the house of commons could not spare from more exciting occupations the time necessary for its discussion. a commission, however, was appointed, consisting of lord blackburn, mr. justice barry, lord justice lush, and himself to go into the subject. the commission sat from november to may , and signed a report, written by fitzjames, on june , . they met daily for over five months, discussed 'every line and nearly every word of every section,' carefully examined all the authorities and tested elaborately the completeness of the code. the discussions, i gather, were not so harmonious as those in the indian council, and his letters show that they sometimes tried his temper. the ultimate bill, however, did not differ widely from the draft produced by fitzjames, and he was glad, he says,[ ] that these thorough discussions brought to light no serious defect in the 'digest' upon which both draft-codes were founded. the report was too late for any action to be taken in the session of . cockburn wrote some observations, to which fitzjames (now a judge) replied in the 'nineteenth century' of january . he was studiously courteous to his critic, with whom he had some agreeable intercourse when they went the next circuit together. i do not know whether the fate of the measure was affected by cockburn's opinion. in any case the change of ministry in put an end to the prospects of the code for the time. in , to finish the story, the part relating to procedure was announced as a government measure in the queen's speech. that, however, was its last sign of life. the measure vanished in the general vortex which swallows up such things, and with it vanished any hopes which fitzjames might still entertain of actually codifying a part of english law. vii. ecclesiastical cases fitzjames's professional practice continued to be rather spasmodic; important cases occurring at intervals, but no steady flow of profitable work setting in. he was, however, sufficiently prosperous to be able to retire altogether from journalism. the 'pall mall gazette' during his absence had naturally got into different grooves; he had ceased to sympathise with some of its political views; and as he had not time to throw himself so heartily into the work, he could no longer exercise the old influence. a few articles in and were his last contributions to the paper. he felt the unsatisfactory nature of the employment. he calculates soon afterwards that his collected works would fill some fifty volumes of the size of 'liberty, equality, fraternity,' and he is anxious to apply his energy to less ephemeral tasks. his profession and his codes gave him work enough. his most remarkable professional employment arose out of certain ecclesiastical cases. sir francis jeune, who was concerned in some of them, has kindly described his impressions to me. fitzjames's connection with certain prosecutions directed against the ritualists arose from a conversation between sir f. jeune, who was then junior counsel to the english church union, and its secretary the late sir charles young. a counsel was required who should unite 'plenty of courage' to an intimate knowledge of the criminal law and power of appreciating the results of historical research. fitzjames 'combined these requirements in a wonderful way.' sir f. jeune makes reservations similar to those which i have had to notice in other applications, as to fitzjames's want of the subtlety and closeness of reasoning characteristic of the greatest lawyers. he saw things 'rather broadly,' and his literary habits tended to distract him from the precise legal point. 'i always thought of his mind,' says sir francis, 'as of a very powerful telescope pulled out just a little too much.' the sharp definitions, perceptible sometimes to inferior minds, were in his a little blurred. these peculiarities, however, were even advantages in this special class of business. the precedents and principles involved were rather vague, and much of the work within the province rather of the historian than of the lawyer. it involved questions as to the spirit in which the articles and rubrics had been composed by their authors. the requirement of 'courage' was amply satisfied. 'i shall never forget,' says sir francis, 'one occasion' in which fitzjames was urged to take a course which he thought improper, though it was not unnaturally desired by irritated clients fighting against what they considered to be harsh legal restraint. fitzjames at once made it clear that no client should make him deviate from the path of professional propriety. he had, in fact, indignantly refused, as i find from one of his letters, to adopt a position which implied distrust of the impartiality of the judges. of the cases themselves i must say generally that they often provoked a grim smile from the advocate. when, in earlier days, he had defended dr. williams he had spoken not merely as an advocate, but as a man who had felt that he was vindicating the intellectual liberty of the church of which he was a member. the cases in which he was now concerned could appeal to him only as an advocate. the first in which he appeared, february , , was sufficiently grotesque.[ ] a clergyman had refused to administer the sacrament to a gentleman who had published a volume of 'selections' from the bible--implying, it was suggested, that he did not approve of the part not selected--and who had his doubts about the devil. the clergyman was reported to have said, 'let him sit down and write a calm letter, and say he believes in the devil, and i will give him the sacrament.' the only legitimate causes in a legal sense for refusing the sacrament would be that a man was an 'open and notorious evil liver,' or a 'common and notorious depraver of the book of common prayer.' the court of arches apparently held that the gentleman came under this description; but the judicial committee of the privy council, after hearing fitzjames, decided that he did not. a man might disbelieve in the devil, without being a 'notorious evil liver,' however irrational may be his scepticism. the most important of his appearances was in the folkestone case.[ ] his 'opening argument, and even more his reply' (upon the appeal), 'were masterpieces, and they obtained from the privy council a judgment in very marked contrast to those which had preceded it.' his argument, as sir f. jeune thinks, induced the privy council to some extent 'to retrace, or at least seem to retrace, its steps.' the judgment sanctioned what is known as the 'eastern position,' and certain other ritualistic practices. in another case,[ ] it was decided, in accordance with fitzjames's argument, that a sculptured representation of the crucifixion, as opposed to the exhibition of a crucifix, was lawful. fitzjames, in his letters at this time, gives his own view pretty emphatically. while you, he says to lord lytton, (i shall speak of this correspondence directly) 'are fighting with famine in india, i am struggling over albs and chasubles, and superstitions not more reasonable than those about vishnu and shiva.' 'i have been passionately labouring for the last nine days' (he says a little later in regard to the folkestone case) 'for the liberty of the clergy to dress themselves in certain garments and stand in particular attitudes. all my powers of mind and body were devoted to these important objects, till i dreamed of chasubles and wafers.' some years ago, he remarks, certain natives of india, having an interest in an appeal to the privy council, caught an idiot and slew him on a hill-top as a sacrifice to the deity who presides over the deliberations of that body. a being capable of being propitiated in that fashion might take an interest in squabbles over wafers and chasubles. 'it is a foolish subject to joke about,' he adds, 'for beyond all manner of doubt my clients' real object is to get as much idolatry as possible into the poor old church of england, and i believe that they will sooner or later succeed in making the whole thing look absurd and breaking it up.' whether that would be a good thing or not is a matter upon which he feels unable to make up his mind. amid these various occupations, fitzjames, however fully occupied, showed no symptoms of being over-worked or over-worried. he had, in a remarkable degree, the power of taking up and dismissing from his mind the matters in each of which he was alternately absorbed. he could throw himself into codifying, or speculating, or getting up briefs at any moment and in any surroundings, and dismiss each occupation with equal readiness. he found time, too, for a good deal of such society as he loved. he heartily enjoyed little holiday tours, going occasionally to the continent, and more frequently to some of the friends to whom he always adhered and to whom he could pour out his opinions frankly and fully. maine was almost his next-door neighbour, and frequently consulted him upon indian matters. he took his sunday walks with carlyle; and he went to stay with froude, in whose society he especially delighted, in a summer residence in devonshire. he frequently visited his old friend venables in wales, and occasionally spent a few days with members of his own family. although ready to take up a bit of work, literary or professional, at any moment, he never appeared to be preoccupied; and could discourse with the utmost interest upon his favourite topics, though he sometimes calls himself 'unsociable'--by which he apparently means that he cared as little as might be for the unsociable kind of recreation. he was a member of the 'cosmopolitan'; he belonged also to 'the club' and to the 'literary society,' and he heartily enjoyed meeting distinguished contemporaries. in he paid a visit to his friends the stracheys, who had taken for the summer a house at anaverna, near ravensdale, co. louth, in ireland. he liked it so much that he resolved to become their successor. he took the house accordingly, and there spent his holidays in the summer of and the succeeding years so long as his strength lasted. anaverna is a village about five miles of dundalk, at the foot of a range of grassy hills rising to a height of some , feet, within a well-wooded country below. the house stood in grounds of about sixty acres, including a wood and traversed by a mountain-stream. fitzjames enjoyed walks over the hills, and, in the last years, drives in the lower country. to this place, and the quiet life there, fitzjames and his family became most warmly attached. his letters abound in enthusiastic remarks about the scenery, and describe his pleasure in the intercourse with neighbours of all classes, and in the visits of old friends who came to stay with him. a good deal of his later writing was done there. viii. correspondence with lord lytton i have now to speak of a new friendship which played a very important part in his life from this time. in january , lord lytton[ ] was appointed governor-general of india. in february, fitzjames dined in his company at lord arthur russell's. they went afterwards to the 'cosmopolitan,' and by the end of the evening had formed a close friendship, which was only to end with their lives. some of fitzjames's friends were surprised at the singular strength of attachment between two men so conspicuously different in mind and character. some contrasts, as everyone observes, rather facilitate than impede friendship; but in this case the opposition might seem to be too decided. the explanation is not, i think, difficult. lord lytton, in the first place, was a singularly charming person. he was not only a delightful companion, but he was delightful because obviously open-hearted, enthusiastic, and exceedingly affectionate. to such charms fitzjames was no more obdurate than his fellows. lord lytton, it is true, was essentially a man of letters; he was a poet and a writer of facile and brilliant prose; and fitzjames acknowledged, or rather claimed, a comparative insensibility to excellence of that kind. upon some faults, often combined with a literary temperament, he was perhaps inclined to be rather too severe. he could feel nothing but hearty contempt for a man who lapped himself in æsthetic indulgences, and boasted of luxurious indifference to the great problems of the day. such an excess of sensibility, again, as makes a man nervously unwilling to reveal his real thoughts, or to take part in a frank discussion of principles, would be an obstacle to intimacy. fitzjames might not improbably decline to take the trouble necessary to soothe the vanity, or thaw the shyness of such a person, and might perhaps too hastily set him down for a coward or a 'poor creature.' but when, as was often the case, the sensitive person was encouraged to openness by fitzjames's downright ways, the implied compliment would be fully recognised. lord lytton, as an accomplished man of the world, was of course free from any awkward bashfulness; and at the very first interview was ready to meet fitzjames half-way. his enthusiasm accordingly met with a rapid return. one of fitzjames's favourite assertions was that nobody but a humbug could deny the pleasantness of flattery; and, in fact, i think that we all like it till we discover it to be flattery. what he really meant was that he liked downright, open-hearted and perfectly sincere praise; and both parties to this alliance could praise each other both sincerely and heartily. there was, however, another reason which helps to explain the great value which fitzjames attached from the first to this intercourse. it comes out in almost every letter in his part of their correspondence. fitzjames calls himself 'self-contained'; and the epithet is quite appropriate if it is taken as not implying any connotation of real selfishness. he was, that is, sufficient for himself; he was contented so long as he could feel, as he always had a right to feel, that he was doing his work thoroughly to the very best of his abilities. he could dispense with much appreciation from outside, though it was unaffectedly welcome when it came from competent persons. he had too much self-reliance to be dependent upon any endorsement by others. but, though this might be perfectly true, he was at bottom sensitive enough, and it was also true that he felt keenly certain consequences of his position. his professional career, as i have so often said, had been a series of tantalising half-successes; he was always being baffled by cross winds at the harbour-mouth. although his courage never failed for an instant, he could not but have a certain sense of isolation or want of support. this was especially true of the codification schemes which occupied so much of his thought. he had been crying in the market-place and no man heeded him. yet his voice was powerful enough morally as well as physically. he had the warmest of friends. some of them were devoted to pursuits which had nothing to do with law and could only express a vague general sympathy. they admired his general vigour, but were not specially interested in the ends to which it was applied. others, on the contrary, were politicians and lawyers who could have given him effectual help. but they almost unanimously refused to take his plans seriously. the british barrister and member of parliament looked upon codification as at best a harmless fancy. 'a jurist,' fitzjames sometimes remarks in a joke, which was not all joking, is a 'fool who cannot get briefs.' that represents the view generally taken of his own energy. it was possibly admirable, certainly unobjectionable, but not to the purpose. the statesman saw little chance of gaining votes by offers of a code, and the successful lawyer was too much immersed in his briefs to care about investigating general principles of law. at last, as i have said, fitzjames got a disciple or two in high places, but even then his most telling argument seems to have been less that codification was good in itself than that success in passing a code would be a feather in the government cap. up to he had not even got so far. russell gurney, indeed, had helped him, and coleridge had shown an interest in his work; but the general answer to his appeals was even more provoking than opposition; it was the reply of stolid indifference. in india his hands had been free. there he had really done a genuine and big stroke of work. the contrast to english methods, and the failure of his attempts to drive his ideas into the heads of any capable allies, had strengthened his antipathy to the home system, though it had not discouraged him from work. but now at last he had made a real and enthusiastic convert; and that convert a governor-general, who would be able to become an effective agent in applying his ideas. the longing for real sympathy, scarcely perhaps admitted even to himself, had been always in existence, and its full gratification stimulated his new friendship to a rapid growth. lord lytton left for india on march , . before he left, fitzjames had already written for him an elaborate exposition of the indian administrative system, which lytton compared to a 'policeman's bull's-eye.' it lighted up the mysteries of indian administration. fitzjames writes to him on the day of his departure: 'you have no conception of the pleasure which a man like me feels in meeting with one who really appreciates and is willing to make use of the knowledge which he has gained with great labour and much thought. i have had compliments of all sorts till i have become almost sick of them, but you have paid me the one compliment which goes straight to my heart--the compliment of caring to hear what i have to say and seeing the point of it.' 'you have managed,' he afterwards says, 'to draw me out of my shell as no one else ever did.' three years later he still dwells upon the same point. you, he says (january , ) 'are the only prominent public man who ever understood my way of looking at things, or thought it in the least worth understanding.' 'others have taken me for a clever fellow with dangerous views.' 'you have not only understood me, but, in your warm-hearted, affectionate way, exaggerated beyond all measure the value of my sayings and doings. you have not, however, exaggerated in the least my regard for you, and my desire to be of service to you.' these words give the key-note of the correspondence, and may help to explain the rapid growth and singular strength of the friendship between two men whose personal intercourse had been limited to less than a month. fitzjames threatened, and the 'threat' was fully executed, to become a voluminous correspondent. i cannot say, indeed, which correspondent wrote most frankly and abundantly. the letter from which i have quoted the last passage is in answer to one from lord lytton, filling thirty sheets, written, as he says, 'in a hurry,' but, as fitzjames declares, with 'only two slips of the pen, without an "erasure," in a handwriting which fills me with helpless admiration,' and in a style which cannot be equalled by any journalist in england. 'and this you do by way of amusing yourself while you are governing an empire in war-time,' and yet compliment me for writing at leisure moments during my vacations! fitzjames, however, does his best to keep pace with his correspondent. some of his letters run to fourteen and fifteen sheets; and he snatches intervals from worrying labours on his codes, or on the bench or on commissions, or sitting up at nights, to pour out discourses which, though he wrote very fast, must often have taken a couple of hours to set down. the correspondence was often very confidential. some of lytton's letters had to be kept under lock and key or put in the fire for safer guardianship. lytton had a private press at which some of his correspondent's letters were printed, and fitzjames warns him against the wiles of editors of newspapers in a land where subordinates are not inaccessible to corruption. it would, however, not be in my power, even if i had the will, to reveal any secrets of state. fitzjames's letters indeed (i have not seen lord lytton's), so far as they are devoted to politics, deal mainly with general considerations. it would be idle to go far into these matters now. it is indeed sad to turn over letters, glowing with strong convictions as well as warm affection and showing the keenest interest in the affairs of the time, and to feel how completely they belong to the past. some of the questions discussed might no doubt become interesting again at any moment; but for the present they belong to the empire of dryasdust. historians will have to form judgments of the merits of lord lytton's policy in regard to afghanistan; but i cannot assume that my readers will be hankering for information as to the special views taken at the time by a man who was, after all, a spectator at some distance. i therefore give fair warning to historical inquirers that they will get no help from me. when the earlier letters were written the afghan troubles had not become acute. fitzjames deals with a variety of matters, some of which, as he of course recognises, lie beyond his special competence. he writes at considerable length, for example, upon the depreciation of the rupee, though he does not profess to be an economist. he gives his views as to the right principles not only of civil, but of military organisation; and discusses with great interest the introduction of natives into the civil service. 'in the proper solution of that question,' he says, 'lies the fate of the empire.' our great danger is the introduction of a 'hidebound' and mechanical administrative system worked by third-rate europeans and denationalised natives. it is therefore eminently desirable to find means of employing natives of a superior class, though the precise means must be decided by men of greater special experience. he writes much, again, upon the famine in madras, in regard to which he had many communications with his brother-in-law, cunningham, then advocate-general of the presidency. he was strongly impressed by the vast importance of wise precautions against the future occurrence of such calamities. naturally, however, he dilates most fully upon questions of codification, and upon this head his letters tend to expand into small state-papers. soon after lord lytton's departure there was some talk of fitzjames's resuming his old place upon the retirement of lord hobhouse, by whom he had been succeeded. it went so far that maine asked him to state his views for the information of lord salisbury. fitzjames felt all his old eagerness. 'the prospect,' he says, 'of helping you and john strachey to govern an empire,' and to carry out schemes which will leave a permanent mark upon history, is 'all but irresistibly attractive.' he knew, indeed, in his heart that it was impossible. he could not again leave his family, the elder of whom were growing beyond childhood, and accept a position which would leave him stranded after another five years. he therefore returned a negative, though he tried for a time to leave just a loophole for acceptance in case the terms of the tenure could be altered. in fact, however, there could be no real possibility of return, and mr. whitley stokes succeeded to the appointment. towards the end of lord lytton's governorship there was again some talk of his going out upon a special mission in regard to the same subject. but this, too, was little more than a dream, though he could not help 'playing with' the thought for a time. meanwhile he corresponded with lord lytton upon various measures. he elaborately annotated the drafts of at least one important bill; he submitted remarks to be laid before the council at lord lytton's request, and finally he wrote an elaborate minute upon codification generally. i need only say that, in accordance with what he had said in his last speeches at calcutta, he held that nearly enough had been done in the way of codifying for india. he insists, too, upon the danger of dealing with certain branches of legislation, where the codification might tend to introduce into india the subtleties and intricacies of some points of english law. part of this correspondence was taking place during the exciting events in afghanistan; and he then observes that after all codification is 'only a luxury,' and must for the present give way to more important matters. fitzjames, of course, followed the development of the government policy in regard to russia and the afghans with extreme interest. he looked with contempt upon the various fluctuations of popular sentiment at the period of the bulgarian atrocities, and during the russian war with turkey; and he expresses very scanty respect for the policy of the english government at that period. he was occasionally tempted to take to his old warfare in the press; but he had resolved to give up anonymous journalism. he felt, too, that such articles would give the impression that they were inspired by the indian government; and he thought it better to reserve himself for occasions on which he could appear openly in his own person. such occasions offered themselves more than once, and he seized them with all his old vigour. a speech made by bright provoked the first noticeable utterance. fitzjames wrote two letters to the 'times,' which appeared december , , and january , , with the heading 'manchester in india.' bright represented the political school which he most detested. according to bright (or fitzjames's version of bright, which was, i dare say, accurate), the british rule in india was the result of 'ambition, conquest, and crime.' we owed, therefore, a heavy debt to the natives; and, instead of paying it, we kept up a cumbrous system of government, which provided for members of the british upper classes, and failed to promote the material welfare of our subjects. the special instance alleged was the want of proper irrigation. to this fitzjames replied in his first letter that we had, in fact, done as much as could be done, and possibly more than was judicious; and he accuses his antagonist of gross ignorance of the facts. his wrath, however, was really aroused by the moral assumptions involved. bright, he thought, represented the view of the commonplace shopkeeper, intensified by the prejudices of the quaker. to him ambition and conquest naturally represented simple crimes. ambition, reports fitzjames, is the incentive to 'all manly virtues'; and conquest an essential factor in the building up of all nations. we should be proud, not ashamed, to be the successors of clive and warren hastings and their like. they and we are joint architects of the bridge by which india has passed from being a land of cruel wars, ghastly superstitions, and wasting plague and famine, to be at least a land of peace, order, and vast possibilities. the supports of the bridge are force and justice. force without justice was the old scourge of india; but justice without force means the pursuit of unattainable ideals. he speaks 'from the fulness of his heart,' and impressed by the greatest sight he had ever seen. fitzjames kept silence for a time, though it was a grief to him, but he broke out again in october , during the first advance into afghanistan. party feeling was running high, and fitzjames had to encounter lord lawrence, lord northbrook, sir w. harcourt, and other able antagonists. he mentions that he wrote his first letter, which fills more than two columns of the 'times,' four times over. i should doubt whether he ever wrote any other such paper twice. the sense of responsibility shown by this excessive care led him also to confine himself to a single issue, upon which he could speak most effectively, out of several that might be raised. he will not trespass upon the ground of military experts, but, upon the grounds of general policy, supports a thesis which goes to the root of the matter. the advance of the russian power in central asia makes it desirable for us to secure a satisfactory frontier. the position of the russians, he urges, is analogous to our own position in india in the days of wellesley. it is idle to denounce them for acting as we acted; but it is clear that the two empires will ultimately become conterminous; and it is, therefore, essential for us that the dividing line should be so drawn as to place us in perfect security. though fitzjames declined to draw any specific moral, his antagonists insisted upon drawing one for him. he must be meaning to insinuate that we were to disregard any rights of the afghans which might conflict with our alleged interests. this point was touched in a letter by lord lawrence, to which fitzjames felt bound to reply. he was reluctant to do so, because he was on terms of personal friendship with lawrence, whose daughter had recently become the wife of henry cunningham. 'i have seldom,' says fitzjames (october , ), 'met a more cheery, vivacious, healthy-minded old hero.' lawrence, he is glad to think, took a fancy to him, and frequently poured himself out abundantly upon indian topics. their friendship, happily, was not interrupted by the controversy, in which fitzjames was scrupulously respectful. this, again, raised the old question about international law, which fitzjames, as a good austinian, regarded mainly as a figment. the moral point, however, is the only one of general interest. are we bound to treat semi-barbarous nations on the same terms as we consider to govern our relations with france or germany? or are we morally entitled to take into account the fact that they are semi-barbarous? fitzjames's view may be briefly defined. he repudiates emphatically the charge of immorality. he does not hold the opinion imputed to him by his antagonists that we may take what territory we please, regardless of the interests of barbarous natives. he repeats his assertion that our rule rests upon justice as well as force. he insists upon the same point, i may add, in his private letters to lytton, and declares that it is even more important to be straightforward and to keep our word sacredly with afghans than with civilised races. he writes very warmly upon the danger of exacting excessive punishment for the murder of cavagnari. we ought to prove to the natives that our rule is superior to theirs, and that we are strong enough to keep our heads and be merciful even in the face of insults. but then, we have to act upon our own conceptions of morality, and must not be hampered by regarding nations as fictitious persons with indisputable rights. when we have to do with semi-savages, we may have to enforce our own views upon them by the strong hand. some one, for example, had maintained that the eighth commandment forbade us to interfere with independent tribes; fitzjames observes (december , ) that they have just the same right to be independent as the algerine pirates to infest the straits of gibraltar. a parcel of thieves and robbers who happen to have got hold of the main highway of the world have not, therefore, a right to hold it against all comers. if we find it necessary to occupy the passes, we shall have to give them a lesson on the eighth commandment. nobody will ever persuade him that any people, excepting 'a few strapping fellows between twenty and forty,' really prefer cruel anarchy and a life of murder and plunder to peace and order. nor will anyone persuade him that englishmen, backed by sikhs and ghoorkas, could not, if necessary, reduce the wild tribes to order, and 'sow the first seeds of civilisation' in the mountains. to some people it may seem that the emphasis is laid too much upon force and too little upon justice. i am only concerned to say that fitzjames's whole theory is based upon the view--sufficiently expounded already--that force, order, and justice require a firm basis of 'coercion'; and that, while we must be strictly just, according to our own views of justice, we must not allow our hands to be tied by hollow fictions about the 'rights' of races really unfit for the exercise of the corresponding duties. on this ground, he holds it to be possible to have an imperial 'policy which shall yet be thoroughly unjingo-like.' upon this i need insist no further. i shall only say that he always regarded the british rule in india as the greatest achievement of the race; that he held it to be the one thoroughly satisfactory bit of work that we were now doing; and, further, that he held lytton to be a worthy representative of our true policy. a letter which strikingly illustrates his enthusiasm was written in prospect of the great durbar at delhi when the queen was proclaimed empress of india (january , ). no man, he thinks (september , ), ever had before or ever will have again so splendid an opportunity for making a great speech and compressing into a few words a statement of the essential spirit of the english rule, satisfactory at once to ourselves and to our subjects. 'i am no poet,' he says, 'as you are, but delhi made my soul burn within me, and i never heard "god save the queen" or saw the union jack flying in the heart of india without feeling the tears in my eyes, which are not much used to tears.' he becomes poetical for once; he applies the lines of 'that feeble poem maud' to the englishmen who are lying beneath the cashmire gate, and fancies that we could say of hastings and clive, and many another old hero, that their hearts must 'start and tremble under our feet, though they have lain for a century dead.' then he turns to his favourite 'christmas hymn,' and shows how, with certain easy emendations, milton's announcement of the universal peace, when the 'kings sate still with awful eye,' might be applied to the _pax britannica_ in india. he afterwards made various suggestions, and even wrote a kind of tentative draft, from which he was pleased to find that lytton accepted some suggestions. a rather quaint suggestion of a similar kind is discussed in a later letter. why should not a 'moral text-book' for indian schools be issued in the queen's name? it might contain striking passages from the bible, the koran, and the vedas about the divine being; with parables and impressive precepts from various sources; and would in time, he thinks, produce an enormous moral effect. in regard to lytton himself, he was never tired of expressing the warmest approbation. he sympathises with him even painfully during the anxious times which followed the murder of cavagnari. he remarks that, what with famine and currency questions and afghan troubles, lytton has had as heavy a burthen to bear as lord canning during the mutiny. he has borne it with extraordinary gallantry and cool judgment, and will have a place beside hastings and wellesley and dalhousie. he will come back with a splendid reputation, both as a statesman and a man of genius, and it will be in his power to occupy a unique position in the political world. fitzjames's letters abound with such assurances, which were fully as sincere as they were cordial. i must also say that he shows his sincerity on occasions by frankly criticising some details of lytton's policy, and by discharging the still more painful duty of mentioning unfavourable rumours as to his friend's conduct as viceroy. the pain is obviously great, and the exultation correspondingly marked, when lytton's frank reply convinces him that the rumours were merely the echo of utterly groundless slander. i will only add that the letters contain, as might be expected, some downright expressions of disapproval of some persons, though never without sufficient reason for speaking his mind; and that, on the other hand, there are equally warm praises of the many friends whom he heartily admired. he can never speak warmly enough of sir john strachey, sir robert egerton, and others, in whom he believed with his usual fervour. fitzjames's belief in his friends and his estimate of their talents and virtues was always of the most cordial. i will quote a few phrases from one of his letters, because they refer to a friendship which i shall elsewhere have no opportunity of mentioning. alfred lyall, he says, 'is one of the finest fellows i ever knew in my life. if you cultivate him a little you will find him a man of more knowledge, more imagination (in the lofty and eminently complimentary sense of the word), more intelligent interest in the wonders of india, than almost anyone else in the country.' 'i talked to him last sunday for nearly two hours incessantly on indian matters and on religion and morals, and left off at last only because i could not walk up and down any longer in common duty to my wife, who was waiting dinner. it will be, as byron says of pope, a sin and a shame and a damnation if you and he don't come together. he is the one man (except maine) i ever met who seemed to me to see the splendour of india, the things which have made me feel what i have so often said to you about it, and which make me willing and eager to do anything on earth to help you.' i have dwelt at length upon these letters, because they seem to me eminently characteristic, and partly also because they explain fitzjames's feelings at the time. he was becoming more and more conscious of his separation from the liberal party. 'why are you,' asked one of his friends, who was a thorough partisan, 'such a devil in politics?' it was because he was becoming more and more convinced that english political life was contemptible; that with some it was like a 'cricket-match'--a mere game played without conviction for the sake of place or honour; that even where there were real convictions, they were such as could be adapted to the petty tastes of the vulgar and commonplace part of society; and that it was pitiable to see a body of six or seven hundred of the ablest men in the country occupied mainly in thwarting each other, making rational legislation impossible, and bowing more and more before the 'sons of zeruiah,' who would be too strong for them in the end. for behind all this was arising a social and religious revolution, the end of which could be foreseen by no one. i dread, he says, the spread of my own opinions. the whole of society seems to be exposed to disintegrating influences. young men have ceased to care for theology at all. he quotes a phrase which he has heard attributed to a very clever and amiable undergraduate whose tutor had spoken to him about going to chapel. if, said the pupil, there be really such a deity as you suppose, it appears to me that to praise him would be impertinent and to pray to him superfluous. what is to happen when such opinions are generally spread, and when the populace discovers that their superiors do not really hold the creeds which they have declared to be essential to society? ix. appointment to a judgeship meanwhile, fitzjames had been receiving various proofs of rising reputation. in january he was made k.c.s.i. he expresses his pleasure at having the name of india thus 'stamped upon him'; and speaks of the very friendly letter in which lord salisbury had announced the honour, and of his gratitude for lord lytton's share in procuring it. the university of oxford gave him the honorary d.c.l. degree in . he was member of a commission upon fugitive slaves in , and of a commission upon extradition in .[ ] he was also a member of the copyright commission appointed in october , which reported in . he agreed with the majority and contributed a digest of the law of copyright. he had occasional reasons to expect an elevation to the bench; but was as often disappointed. upon the death of russell gurney (may , ) there was some talk of his becoming recorder of london; but he did not much regret the speedy disappearance of this prospect, though it had its attractions. he was three times ( , , and ) appointed to act as judge upon circuit. when at last he was entrusted with the preparation of the criminal code in , the attorney-general expressed the opinion that a satisfactory execution of the task would entitle him to a judgeship, but could not give any definite pledge. when, however, in july , it was determined to appoint a commission to prepare a code for parliament, fitzjames said that he would be unable to undertake a laborious duty which would make practice at the bar impossible for the time, without some assurance of a judgeship. the chancellor thereupon wrote a letter, which, though an explicit promise could not be made, virtually amounted to a promise. in accordance with this he was appointed on january , , to a judgeship which had become vacant by the resignation of sir anthony cleasby. a notorious journalist asserted that the promise had been made on consideration of his writing in the papers on behalf of the indian government. the statement is only worth notice as an ingenious inversion of the truth. so far from requiring any external impulse to write on lytton's behalf, fitzjames could hardly refrain from writing when its expediency was doubtful. when the occasion for a word in season offered itself, hardly any threats or promises could have induced him to keep silence. 'judge or no judge,' he observes more than once, 'i shall be forced to write' if certain contingencies present themselves. i give the letter in which he announced his appointment to his sister-in-law (january , ):--'my dearest emily, i write to tell you that i am out of all my troubles. cleasby has unexpectedly resigned, and i am to succeed him. i know how this news will delight you, and i hasten to send it, though i hope to see you to-morrow. it gives me a strange, satisfied, and yet half-pathetic feeling. one great battle is won, and one great object obtained; and now i am free to turn my mind to objects which have long occupied a great part of it, so far as my leisure will allow. i hope i have not been anxious to any unworthy or unmanly extent about the various trials which are now over. 'in such moments as this, one's heart turns to those one loves. dearest emily, may all good attend you, and may i and mine be able to do our shares towards getting you the happiness you so pre-eminently deserve. i don't know what to wish for; but i wish for all that is best and most for your good in the widest sense which the word can have. ever your loving brother, j. f. s.' * * * * * in giving the news to lord lytton, he observes that he feels like a man who has got into a comfortable carriage on a turnpike road after scrambling over pathless mountain ranges. his business since his return has been too irregular and capricious to allow him to feel himself at his ease. that being over, he is resolved to make the bench a 'base of operations' and 'not a mere shelf.' the hint about 'leisure' in the letter to lady egerton will be understood. leisure in his mouth meant an opportunity for doing more than his duties required. he calculated on a previous occasion that, if he were a judge, he should have at his disposal three or, by good management, four working hours at his own disposal. i find him, characteristically enough, observing in an article of about the same date that the puisne judges have quite enough work without imposing any extra labour whatever upon them. but he tacitly assumed that he was to carry a double burthen. how he turned his time to account will appear directly. i need only say here that he unfeignedly enjoyed his new position. he often said that he could imagine nothing more congenial to all his wishes. he observes frequently that the judicial work is the only part of our administrative system which is still in a thoroughly satisfactory state. he felt as one who had got into a safe place of refuge, from which he could look out with pity upon those who were doomed to toil and moil, in an unhealthy atmosphere, as politicians, public officials, and journalists. he could learn to be philosophical even about the fate of his penal code. note ***my nephew, sir herbert stephen, has kindly sent me the enclosed note in regard to my brother's life in ireland. l. s. in my father took for the long vacation a house called dromquina, on the northern bank of the kenmare river, about three miles from kenmare. the 'river' is an arm of the sea, something like forty miles long, and at dromquina, i suppose, not above half a mile wide. he had heard of the place by reason of his friend, mr. froude, living at that time at lord lansdowne's house, derreen, in killmakalogue harbour, about fifteen miles lower down on the opposite shore. in a thickly populated country this would not constitute a near neighbourhood, but we made excursions to derreen, either in a boat or in mr. froude's yacht, several times in the course of the summer. it is in the neighbourhood of the kenmare river and bantry bay that mr. froude laid the scene of 'the two chiefs of dunboy.' dromquina stands close to the water's edge, and we had several boats and the services of some half-dozen fishermen at our command. my father had learnt to row at eton, and during this summer he always took an oar--and did good service with it--upon our frequent excursions on the water. i remember, by the way, that many years later, after he had been for some time a judge, he was one day rowing in a boat with a party of friends on the thames, and was much gratified by my telling him what hard work i had found it, while steering, to keep the boat straight, because he pulled so much harder than the man who was rowing bow, a sturdy athlete, twenty years his junior, but no waterman. he liked the life at dromquina so much that in , after his return from india, he took the bishop of limerick's house, parknasilla, in sneem harbour, just opposite derreen. that year, if i remember right, he took some shooting, to which we had to drive a considerable distance. in one year or the other i went out shooting with him two or three times. i do not think he ever had any shooting later: though, considering how little practice he can have had, he was a decidedly good shot. the country was rough, and the bags, though not heavy in quantity--we were lucky if we saw ten brace of grouse--presented a rather extensive variety of kind. during these two summers my father indulged himself freely in his favourite amusement of taking long walks, but also did a good deal of rowing and sailing. he had had my brothers and me taught to swim in a previous summer at the sea-side, and at dromquina decided that we ought to be able to swim confidently in our clothes. in order to test our possession of this accomplishment, he one day took us out himself in a boat, and told me to sit on the gunwale, after which he artfully engaged me in conversation until he saw that i was not expecting my plunge, when he suddenly shoved me overboard. we all passed the ordeal with credit. in he meditated building a house on the kenmare river, but in the course of that summer he went to visit sir john strachey, who was then living at anaverna house, at ravensdale in county louth. the stracheys left it not long after, and we went there for the first time in . some years later my father took a lease of it, and there he spent every long vacation till inclusive, and the greater part of . for this place my father in particular, as well as his family generally, had from the first a strong affection. the house stands rather high, on the extreme southern slope of the mourne mountains, just within the border of the county of louth and the province of leinster. behind and above the house to the north, the 'mountains' (moors varying in height from , to , feet) stretch for many miles, enclosing the natural harbour known as carlingford lough. southwards there is a view across a comparatively level plain as far as the wicklow mountains, just beyond dublin, and about sixty miles away. the sea is visible at no great distance on the east, and on fine days we could always see the isle of man, about eighty miles to the north-east, from any of several hill-tops within an hour's walk of the house. my father was therefore able to take to his heart's content the long walks that had always been his favourite amusement. he also devoted himself with the greatest enthusiasm to the improvement of the house and grounds. for many years before the stracheys' short tenancy it had been unoccupied, and the grounds--of which there were about seventy acres--were at first very much overgrown, especially with laurels, which, when neglected, grow in that country in almost disgusting luxuriance. my father therefore occupied himself a good deal with amateur forestry, and became, considering that he first turned his attention to the subject at the age of forty-six, a rather expert woodsman. a good deal of tree-felling was necessary, both in the interest of the trees and for the improvement of the views from the house and its immediate neighbourhood. my father had a canadian axe, given to him by frederick gibbs, of which he was extremely fond, and with which he did a great deal of work. he was never reduced to cutting down a tree merely for exercise, but always first satisfied himself with much care that its removal would be an improvement. another point in his wood-cutting that i always admired was that, when the more amusing part of the operation--which is cutting the tree down--was over, he invariably took personally his full share of the comparatively uninteresting work of sawing up the trunk, and disposing in an orderly manner of the branches. he also took great pains to cut his trees as close to the ground as possible, so as not to sacrifice the good timber at the butt, or leave a tall or ragged stump to disfigure the ground afterwards. another labour in which he took much interest was the making of paths through a little wood running up the hill-side behind the house, and the engineering of a stream which descended through it, and, being flooded two or three times every year, required a good deal of management, the more so as the house was supplied by it with water through an artificial streamlet made for the purpose. in these pursuits my father was always assisted by the village post-master, an old man named morton, of picturesque appearance and conversation, and the consultations between the two used to be full of interest. morton spoke with a strong brogue, and combined several other pursuits with that of post-master, the universality of his aptitudes making him an interesting companion, and my father had a great regard for him. he died a few months ago, being then, i believe, over eighty years of age. another out-door amusement that my father enjoyed was shooting at a mark with a snider rifle. the nature of the grounds made it easy to get a safe hundred yards' range within three minutes' walk of the front door, and three or four hundred yards by going a little farther. we practised in this way pretty often, and i think the judge was, on the whole, a better shot than any of his sons. in the year the household was increased, a good deal to my father's annoyance, by two policemen. at the liverpool summer assizes he had tried a gang of dynamiters, i think for treason-felony. they, or most of them, were convicted and sentenced to long terms of penal servitude. some of my father's friends, not understanding that if anybody wanted to murder him it was quite as likely to be done, and quite as easy to do, in england as in ireland, and perhaps entertaining the fantastic idea that the population of louth had more regard for dynamiters than the population of london, suggested to the irish government that he was in some danger. the only thing that could be done was to order police protection, and this sir george trevelyan did. accordingly two constables took up their abode in a room which happened to be available in the stable-yard, and mounted guard all day over the hall-door, following my father wherever he went during the day. though their continued escort troubled him a good deal, there was no escape from it, and he got used to it to some extent. he made great friends with the men personally--like other people, he had the highest admiration for the force to which they belonged--and sometimes challenged them to a shooting match, either with their own rifles or with his, and was much gratified when he got the better of them. with the people generally he became after a time extremely popular. i say after a time, because the inhabitants of that country do not, any more than country people in most parts of england, take strongly to strangers before they know anything about them. they never showed the least disposition to incivility, but for the first year or two my father had not many acquaintances among them. later he came to be well known, and when he was taking his walks in the fields or on the mountains, there was hardly a man for a good many miles round who did not hail him by name. i have known them shout across two fields, 'it's a fine evening, sir james'; and when they did so he invariably stopped and entered into conversation about the crops and the weather, or other topics of universal interest. with some of them whom he had frequently met while walking, or whom he had helped with advice or small loans (about the repayment of which they were, to his great delight, singularly honest), he was on particularly friendly terms, and made a point of visiting them in their houses at least once every year. they have remarkably good manners, and attracted him particularly by their freedom from awkwardness, and their combination of perfect politeness with complete self-respect. i have reason to know that they have not forgotten him. he once made a short expedition with one of my sisters to achill, clifden, and galway. they stayed two nights at achill, which sufficed for him to make friends with mr. sheridan, the landlord of the inn there. they never met again, but there were communications between them afterwards which showed that my father retained as long as he lived a kindly recollection of the people he had met in that particular holiday. it was naturally during the summer holidays, and when one of us used to go circuit as his marshal, that my brothers and i saw most of him. i think that during the years of his judgeship i came to know all his opinions, and share most of them. one result of his strong memory, and the immense quantity of talking and reading that he had done in his life, was that he was never at a loss for conversation. but to attempt to give an idea of what his intimate talk was like when he conversed at his ease about all manner of men and things is not my business. it was, of course, impossible to live in the house with him without being impressed by his extraordinary industry. the mere bulk of the literary work he did at anaverna would make it a surprising product of fifteen long vacations, and there was not a page of it which had not involved an amount of arduous labour which most men would regard as the antithesis of holiday-making. this, however, as the present biography will have shown, was his normal habit, and these notes are designed to indicate that it did not prevent him from enjoying, when away from books and pens and ink, a happy and vigorous life. footnotes: [footnote : the first volume of his _civilization in europe_ appeared in .] [footnote : mill elaborately argues that the social sciences are possible precisely because the properties of the society are simply the sum of the properties of the individuals of which it is composed. his view of the importance of this theory is given in his _autobiography_ (first edition), p. . and see especially his _logic_, bk. vi. chap. vii.] [footnote : _liberty, equality, fraternity_, p. . (my references are to the second edition.)] [footnote : p. .] [footnote : p. . this is almost literally from bentham, who gives several similar classifications of 'sanctions.'] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : pp. , .] [footnote : p. .] [footnote : pp. , .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. . the quotation is not quite accurate.] [footnote : pp. - .] [footnote : p. .] [footnote : p. . in the first edition the 'ignorant preacher' was a 'wretched little curate.' a rougher but more graphic phrase.] [footnote : there is here a discussion as to the relations between 'justice' and 'utility' upon which fitzjames agreed with mill. i dissent from both, and think that fitzjames would have been more consistent had he agreed with me. i cannot, however, here try to unravel a rather knotty point.] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : i repeat that i do not ask whether his interpretation be correct.] [footnote : pp. - .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : bain's _j. s. mill_, p. .] [footnote : _digest of law of evidence_, preface.] [footnote : i have to thank mr. a. h. millar, of dundee, for some papers and recollections referring to this election.] [footnote : they were substantially republished in the _contemporary review_ for december and january .] [footnote : see prefaces to _history of the criminal law_ and to the _digest of the criminal law_.] [footnote : the introduction is dated april .] [footnote : preface to _history of criminal law_.] [footnote : 'jenkins _v._ cook,' _law reports_, probate division, i. - .] [footnote : 'clifton v. ridsdale,' _law reports_, probate division, i. - ; and ii. - .] [footnote : 'hughes v. edwards,' _law reports_, probate division, ii. - .] [footnote : b. november , . d. november , .] [footnote : some account of the reports of these commissions is given in the _history of criminal law_, ii. - , - . the fugitive slave commission was appointed in consequence of a case in which the commander of an english ship in a mohammedan port was summoned to give up a slave who had gone on board. a paper laid before the committee by fitzjames is reprinted in the first passage cited. he thinks that international law prescribes the surrender of the slave; and that we should not try to evade this 'revolting' consequence by a fiction as to the 'exterritoriality' of a ship of war, which might lead to unforeseen and awkward results. we ought to admit that we are deliberately breaking the law, because we hold it to be unjust and desire its amendment. he signs the report of the commission understanding that it sanctions this view.] chapter vi _judicial career_ i. history of criminal law the commission upon the criminal code occupied fitzjames for some time after his appointment to a judgeship. his first appearance in his new capacity was in april at the central criminal court, where he had held his first brief, and had made his first appearance after returning from india. he had to pass sentence of death upon an atrocious scoundrel convicted of matricide. a few months later he describes what was then a judge's business in chambers. it consists principally, he says, in making a number of small orders, especially in regard to debtors against whom judgment has been given. 'it is rather dismal, and shows one a great deal of the very seamy side of life.... you cannot imagine how small are the matters often dealt with, nor how important they often are to the parties. in this dingy little room, and under the most undignified circumstances, i have continually to make orders which affect all manner of interests, and which it is very hard to set right if i go wrong. it is the very oddest side of one's business. i am not quite sure whether i like it or not. at any rate it is the very antithesis of "pomp and 'umbug."' [illustration: _from a photograph by bassano, _ london. published by smith elder & co . waterloo place.] the last phrase alludes to a conversation overheard at the assizes between two workmen. one of them described the judge, the late lord chief justice cockburn, as a 'cheery swine' who, as he affirmed, had gone to church and preached a sermon an hour and a half long. the sheriff, too, was there in a red coat, and had no doubt got his place by interest. 'pomp and 'umbug i calls it, and we poor chaps pays for it all.' fitzjames heartily enjoyed good vernacular embodiments of popular imagination. he admitted that he was not quite insensible to the pleasures of pomp and humbug as represented by javelin men and trumpeters. his work, as my quotation indicates, included some duties that were trivial and some that were repulsive. in spite of all, however, he thoroughly enjoyed his position. he felt that he was discharging an important function, and was conscious of discharging it efficiently. there are few greater pleasures, certainly few were greater to him, than the exercise of a craft which one has so mastered as to have lost all the embarrassment of a beginner. he felt that he was not only up to his duties but had superfluous energy to direct elsewhere. the pleasantest hours of the day were those before and after business hours, when he could devote himself to his literary plans. in some of his letters to lord lytton about the time of his appointment, i find unusual confessions of weariness. he admits that there is a difference between forty and fifty; and thinks he has not quite the old elasticity. i believe, however, that this refers to the worry caused by his work on the commission, and the daily wrangle over the precise wording of the code, while the judgeship was not yet a certainty. at any rate there is no more mention of such feelings after a time; and in the course of the summer he was once more taking up an important literary scheme which would have tasked the energies of the youngest and strongest. he seems to have contemplated for a time a series of books which should cover almost the whole field of english law and be a modern substitute for blackstone. the only part of this actually executed--but that part was no trifle--was another book upon the english criminal law. it was, in truth, as he ventured to say, 'a remarkable achievement for a busy man to have written at spare moments.' we must, of course, take into account his long previous familiarity with the law. the germ of the book is to be found in the essay of ; and in one way or other, as a writer, a barrister, a codifier, and a judge, he had ever since had the subject in his mind. it involved, however, along with much that was merely recapitulation of familiar topics, a great amount of laborious investigation of new materials. he mentions towards the end of the time that he has been working at it for eight hours a day during his holiday in ireland. the whole was finished in the autumn of , and it was published in the following spring. fitzjames explains in his preface how the book had come to be written. he had, as i have said, laid aside the new edition of the original 'view' in order to compile the 'digest,' which he had felt to be its necessary complement. i may add that he also wrote with the help of his eldest son--now sir herbert stephen--a 'digest of the law of criminal procedure,' which was published contemporaneously with the 'history.' the 'digest' had led to the code and to the commission. when the commission was over, he returned to the proposed new edition of the 'view.' but fitzjames seems to have had an odd incapacity for producing a new edition. we, who call ourselves authors by profession, are sometimes tempted, and we do not always resist the temptation, to describe a book as 'revised and corrected' when, in point of fact, we have added a note or two and struck out half a dozen obvious misprints. when fitzjames said that his earlier treatise might be described as 'in some sense a first edition' of the later, he meant that he had written an entirely new book upon a different aspect of the old subject. the 'view' is in one volume of about pages, nearly a third of which ( pages) consists of reports of typical french and english trials. these are reprinted in the 'history.' of the remainder, over pages are devoted to the law of evidence, which is not discussed in the 'history.' consequently the first pages of the 'view' correspond to the whole of the three volumes of the 'history,' which, omitting the reported trials given in both books, contain , pages. that is, the book has swelled to six times the original size, and i do not think that a single sentence of the original remains. with what propriety this can be called a 'new edition' i will not try to decide. the cause of this complete transformation of the book is significant. fitzjames, in his preface, observes that much has been said of the 'historical method' of late years. it has, he agrees, 'thrown great light upon the laws and institutions of remote antiquity.' less, however, has been done for modern times; although what is called 'constitutional history' has been 'investigated with admirable skill and profound learning.' as i have noticed, his original adherence to the theories of bentham and austin had tended to make him comparatively indifferent to the principles accepted and illustrated by the writings of maine. he had looked at first with some doubts upon those performances and the brilliant generalisations of 'ancient law' and its successors. he quotes somewhere a phrase of his friend bowen, who had said that he read maine's works with the profoundest admiration for the genius of the author, but with just a faint suspicion somewhere in the background of his mind that the results might turn out to be all nonsense. fitzjames had at any rate no prepossessions in favour of the method, and may be said to have been recruited, almost in spite of himself, by the historical school. but it was impossible for anyone to discuss the peculiarities of english criminal law without also being plunged into historical investigations. at every point the system is determined by the circumstances of its growth; and you can no more account for its oddities or its merits without considering its history than you can explain the structure of a bat or a seal without going back to previous forms of life. the growth of the criminal law, as fitzjames remarks, is closely connected with the development of the moral sentiments of the community: with all the great political and social revolutions and with the changes of the ecclesiastical constitution and the religious beliefs of the nation. he was accordingly drawn into writing a history which may be regarded as complementary to the great constitutional histories of hallam and dr. stubbs. he takes for granted many of their results, and frankly acknowledges all his obligations. but he had also to go through many investigations of his own special topics, and produced a history which, if i am not mistaken, is of the highest interest as bringing out certain correlative processes in the legal development of our institutions, which constitutional historians naturally left in the background. his early work upon the similar book suggested by his father had made him more or less familiar with some of the original sources. he now had to plunge into various legal antiquities, and to study, for example, the six folio volumes called _rotuli parliamentorum_; to delve in year-books and old reports and the crabbed treatises of ancient lawyers, and to consider the precise meaning and effect of perplexed and obsolete statutes. he was not an antiquary by nature, for an antiquary, i take it, is one who loves antiquity for its own sake, and enjoys a minute inquiry almost in proportion to its minuteness. fitzjames's instinct, on the contrary, was to care for things old or new only so far as they had some distinct bearing upon living problems of importance. i could not venture to pronounce upon the value of his researches; but i am happily able to give the opinion of professor maitland, who can speak as one having authority. 'about the excellence of your brother's history of english criminal law,' he writes to me, 'there can, i suppose, be but one opinion among those who are competent to speak of such a matter. but i think that he is scarcely likely to get all the credit that is due to him for certain parts of the work which are especially interesting to me, and which i have often read--i mean those parts which deal with the middle ages. they seem to me full of work which is both good and new. i take it that he had no great love for the middle ages, and wrote the chapters of which i am speaking as a disagreeable task. i do not think that he had from nature any great power of transferring himself or his readers into a remote age, or of thinking the thoughts of a time very different from that in which he lived: and yet i am struck every time i take up the book with the thoroughness of his work, and the soundness of his judgments. i would not say the same of some of his predecessors, great lawyers though they were, for in dealing with mediæval affairs they showed a wonderful credulity. to me it seems that he has often gone right when they went wrong, and that his estimate of historical evidence was very much sounder than theirs. the amount of uncongenial, if not repulsive labour that he must have performed when he was studying the old law-books is marvellous. he read many things that had not been used, at all events in an intelligent way, for a very long time past; and--so i think, but it is impertinent in me to say it--he almost always got hold of the true story.' to write three thick volumes involving such inquiries within three years and a half; and to do the work so well as to deserve this praise from an accomplished legal antiquary, was by itself an achievement which would have contented the ambition of an average author. but when it is remembered that the time devoted to it filled only the interstices of an occupation which satisfies most appetites for work, and in which he laboured with conscientious industry, i think that the performance may deserve professor maitland's epithet, 'marvellous.' he was greatly interested in the success of the book, though his experience had not led him to anticipate wide popularity. it was well received by competent judges, but a book upon such a topic, even though not strictly a 'law-book,' can hardly be successful in the circulating-library sense of the word. fitzjames, indeed, had done his best to make his work intelligible to the educated outsider. he avoided as much as possible all the technicalities which make the ordinary law-book a hopeless bewilderment to the lay reader, and which he regarded on all grounds with natural antipathy. the book can be read, as one outsider at least can testify, with strong and continuous interest; though undoubtedly the reader must be prepared to endure a little strain upon his attention. there are, indeed, certain drawbacks. in spite of the abundant proofs of industry and knowledge, there are indications that a little more literary polish might have been advantageous. some of the materials are so crabbed that hardly any skill could have divested them of their natural stiffness. as professor maitland's remarks indicate, fitzjames did not love the old period for its own sake. he liked, as i have noticed, general histories, such as gibbon's, which give a bird's-eye view of long periods and, in a sense, codify a great mass of knowledge. but he had not the imaginative power of reconstructing ancient states of society with all their picturesque incidents which was first exemplified by scott. he was always interested in books that reveal human nature, and says in the 'history,' for example, that some of the state trials are to him 'much more impressive than poetry or fiction.'[ ] but the incidents do not present themselves to him, as they did to scott or to macaulay, as a series of vivid pictures with all their material surroundings. he shrank, more advisedly, perhaps, from another tendency which has given popularity to a different school. though he gradually became an admirer of maine's generalisations, founded upon cautious inquiries and recommended by extraordinary literary skill, his own intellectual aptitudes did not prompt him to become a rival. briefly, his attitude of mind was in the strictest sense judicial. he asks always for distinct proofs and definite issues. he applies his canons of evidence to every statement that comes up, and, after examining it as carefully as he can, pronounces his conclusions, unequivocally but cautiously. he will not be tempted to a single step beyond the solid ground of verifiable fact. this undoubtedly gives confidence to the tolerably patient reader, who learns to respect the sobriety and impartiality of his guide. but it also fails to convince the hasty reader that he has seen the event precisely as it happened, or that he is in possession of a philosophical key to open all historical problems. i do not wish for a moment to underrate the value of work which has different qualities; but i do think that fitzjames's merits as a solid inquirer may be overlooked by readers who judge a writer by the brilliance of his pictures and the neatness of his theories. the book covers a very large field. a brief indication of its general plan will show how many topics are more or less treated. he begins with a short account of the roman criminal law; and then of english law before the conquest. he next takes up the history of all the criminal courts, including the criminal jurisdiction of the extraordinary courts, such as parliament and the privy council. this is followed by a history of the procedure adopted in the courts, tracing especially the development of trial by jury. the second volume opens a discussion of certain principles applicable to crime in general, such as the theory of responsibility. next follows a history of the law relating to crime in general. he then takes up the history of the principal classes of crime, considering in separate chapters offences against the state, treason, sedition, and seditious libels; offences against religion, offences against the person (this opens the third volume), especially homicide; offences against property, such as theft and forgery; offences relating to trade and labour and 'miscellaneous offences.' this finishes the history of the law in england, but he adds an account of the extension of the english criminal law to india; and this naturally leads to an exposition of his views upon codification. the exposition is mainly a reproduction of the report of the commission of - , which was chiefly his own composition. finally, the old reports of trials, with a few alterations, are appended by way of pointing the contrast between the english and the french methods, upon which he has already introduced some observations. mr. justice stephen's book, said sir f. pollock in a review of the day, is 'the most extensive and arduous' undertaken by any english lawyer since the days of blackstone. so large a framework necessarily includes many subjects interesting not only to the lawyer but to the antiquary, the historian, and the moralist; and one effect of bringing them together under a new point of view is to show how different branches of inquiry reciprocally illustrate each other. the historian of the previous generation was content to denounce scroggs and jeffreys, or to lament the frequency of capital offences in the eighteenth century, and his moral, especially if he was a whig, was our superiority to our great-grandfathers. there was plenty of room for virtuous indignation. but less attention was generally paid to the really interesting problems, how our ancestors came to adopt and to be content with these institutions; what precisely the institutions were, and how they were connected with other parts of the social framework. when an advance is made towards the solution of such problems, and when we see how closely they connect themselves with other problems, social, ecclesiastical, and industrial, as well as political, we are making also a step towards an intelligent appreciation of the real meaning of history. it is more than a collection of anecdotes, or even, as carlyle put it, than the essence of a multitude of biographies; it becomes a study of the growth of an organic structure; and although fitzjames was reluctant, even to excess, to put forward any claim to be a philosophical historian, a phrase too often applied to a dealer in 'vague generalities,' i think that such work as his was of great service in providing the data for the truly philosophical historian who is always just on the eve of appearing. i venture to touch upon one or two points with the purpose of suggesting in how many ways the history becomes involved in topics interesting to various classes of readers, from the antiquary to the student of the development of thought. the history of trial by jury had, of course, been already unravelled by previous historians. fitzjames was able, however, to produce quaint survivals of the old state of things, under which a man's neighbours were assumed to be capable of deciding his guilt or innocence from their own knowledge. there was the gibbet law of halifax, which lasted till the seventeenth century. the jurors might catch a man 'handhabend, backbarend, or confessand,' with stolen goods worth - / _d._ in his possession and cut off his head on a primitive guillotine without troubling the judges. even in there existed (and i presume there still exists) a certain 'liberty of the savoy,' under the shadow of the new courts of justice, which can deal with keepers of disorderly houses after the same fashion.[ ] from this primitive institution fitzjames has to grope his way by scanty records to show how, during the middle ages, the jury ceased to be also witnesses and became judges of fact informed by witnesses. emerging into the period of the tudors and the early stuarts, he comes to trials full of historic interest; to the dramatic scenes in which sir thomas more, and throckmorton, and raleigh played their parts. he has to show how in a period of overpowering excitement, when social organisation was far weaker, and the power of the rulers more dependent upon personal vigour, the government dealt out sharp and short justice, though juries still had to be cajoled or bullied; how the system was influenced by the growth of the star chamber, with a mode of procedure conforming to a different type; and how, when the tyranny of such courts had provoked indignation, they were swept away and left to the jury its still undisputed supremacy. from the time when honest john lilburne wrangled successfully against cromwell's judges, it began to assume a special sanctity in popular belief. then we come to the popish plots and the brutalities of scroggs and jeffreys, when the jury played a leading part, though often perverted by popular or judicial influence, and without any sound theory of evidence. the revolution of swept away the grosser abuses; the administration of justice became decorous and humane; a spirit of fair play showed itself; the laws of evidence were gradually worked out; and, instead of political tragedies, we have a number of picturesque cases throwing the strangest gleams of light into all manner of odd dark social corners. within the last century, finally, the mode of investigating crime has become singularly dignified, impartial, and substantially just. a survey of this long history, bringing out at every step picturesque incidents and curious illustrations of social and political constitutions, lights up also the real merits and defects of the existing system. fitzjames, with much fuller knowledge and longer experience, adheres substantially to his previous opinion. he has not, of course, the old-fashioned worship for the 'palladium of our liberties'; jurors could be 'blind and cruel' under charles ii., and as severe as the severest judge under george iii. they are not more likely to do justice than a single judge. but the supreme advantages of placing the judge in his proper position as mediator and adviser, and of taking the public into confidence as to the perfect impartiality of the proceedings, outweigh all objections. again we have the curious history of the 'benefit of clergy.' before , a man who could read and write might commit murder as often as he pleased, subject to an indefinite chance of imprisonment by the 'ordinary.' at a later period, he could still murder at the cost of having m branded on the brawn of his thumb. but women and men who had married two wives or one widow did not enjoy this remarkable privilege. the rule seems as queer and arbitrary as any of the customs which excite our wonder among primitive tribes. the explanation, of course throws a curious light upon the struggle between church and state in the middle ages; and in the other direction helps to explain the singularities of criminal legislation in the eighteenth century. our grandfathers seem to have thought that felony and misdemeanour were as much natural classes as mammal and marsupial, and that all that they could do was to remove the benefit of clergy when the corresponding class of crime happened to be specially annoying. they managed to work out the strange system of brutality and laxity and technicality in which the impunity of a good many criminals was set off against excessive severity to others. the spiritual courts, again, give strange glimpses into the old ecclesiastical system. the records show that from the time of the conquest to that of the stuarts a system prevailed which was equivalent to the spanish inquisition, except that it did not use torture. it interfered with all manner of moral offences such as that of eleanor dalok, a 'communis skandalizatrix,' who 'utinizavit' (supposed to be a perfect of _utinam_) 'se fuisse in inferno quamdiu deus erit in cælo, ut potuisset uncis infernalibus vindicare se de quodam johanne gybbys mortuo.' the wrath provoked by this and more vexatious interferences makes intelligible the sweeping away of the whole system in . with this is connected the long history of religious persecution, from the time when ( ) the clergy forged an act of parliament to give the bishops a freer hand with heretics. strange fragments and shadows of these old systems still remain; and according to fitzjames it would still in strict law be a penal offence to publish renan's 'life of christ.'[ ] the attempt to explain the law as referring to the manner, not the matter, of the attack is, he thinks, sophistical and the law should be simply repealed. a parallel case is that of seditious libels; and there is a very curious history connected with the process by which we have got rid of the simple, old doctrine that all attacks upon our rulers, reasonable or otherwise, were criminal. these are some of many cases in which fitzjames has to give a side of history generally left in comparative obscurity. upon some matters, as, for example, upon the history of impeachments, he thought that he had been able to correct or clear up previous statements. i have only wished to show how many interesting topics come into his plan; and to me, i confess, the most interesting of all is the illustration of the amazing nature of the so-called intellectual process involved. people seem to begin by making the most cumbrous and unreasonable hypotheses possible, and slowly and reluctantly wriggling out of them under actual compulsion. that is not peculiar to lawyers, and may have a meaning even in philosophy. fitzjames's comments upon the actual state of the law brings him to many important ethical problems. the discussion of the conditions of legal responsibility is connected with that of moral responsibility. fitzjames once more insists upon the close connection between morality and law. 'the sentence of the law,' he says, 'is to the moral sentiment of the public what a seal is to hot wax. it converts into a permanent final judgment what might otherwise be a transient sentiment.' the criminal law assumes that 'it is right to hate criminals.' he regards this hatred as a 'healthy natural feeling'; for which he again quotes the authority of butler and bentham. the legal mode of expressing resentment directs it to proper applications in the same way as the law of marriage gives the right direction to the passion of love. from his point of view, as i have already indicated, this represents the necessary complement to the purely utilitarian view, which would make deterrence the sole legitimate end of punishment. the other, though generally consistent, end is the gratification of the passion of moral indignation.[ ] hence arise some difficult questions. fitzjames insists, in agreement with bentham, and especially with james mill, that the criminal law is concerned with 'intentions,' not with 'motives.' all manner of ambiguities result from neglecting this consideration. the question for the lawyer is, did the prisoner mean to kill?--not, what were his motives for killing? the motives may, in a sense, have been good; as, for example, when a persecutor acts from a sincere desire to save souls. but the motive makes no difference to the sufferer. i am burnt equally, whether i am burnt from the best of motives or the worst. a rebel is equally mischievous whether he is at bottom a patriot or an enemy of society. the legislator cannot excuse a man because he was rather misguided than malignant. it is easy to claim good motives for many classes of criminal conduct, and impossible to test the truth of the excuse. we cannot judge motives with certainty. the court can be sure that a man was killed; it can be sure that the killing was not accidental; but it may be impossible to prove that the killer had not really admirable motives. but if so, what becomes of the morality? the morality of an act is of course affected (if not determined) by the motive.[ ] we can secure, no doubt, a general correspondence. crimes, in nine cases out of ten, are also sins. but crimes clearly imply the most varying degrees of immorality: we may loathe the killer as utterly vile, or be half inclined very much to applaud what he has done. the difficulty is properly met, according to fitzjames, by leaving a wide discretion in the hands of the judge. the jury says the law has been broken; the judge must consider the more delicate question of the degree of turpitude implied. yet in some cases, such as that of a patriotic rebel, it is impossible to take this view. it is desirable that a man who attacks the government should attack it at the risk of his life. law and morality, therefore, cannot be brought into perfect coincidence, although the moral influence of law is of primary importance, and in the normal state of things no conflict occurs. there are certain cases in which the difficulty presents itself conspicuously. the most interesting, perhaps, is the case of insanity, which fitzjames treats in one of the most elaborate chapters of his book. it replaces a comparatively brief and crude discussion in the 'view,' and is conspicuously candid as well as lucid. he read a great many medical treatises upon the subject, and accepts many arguments from an opponent who had denounced english judges and lawyers with irritating bitterness. there is no difficulty when the madman is under an illusion. our ancestors seem to have called nobody mad so long as he did not suppose himself to be made of glass or to be the devil. but madness has come to include far more delicate cases. the old lawyers were content to ask whether a prisoner knew what he was doing and whether it was wrong. but we have learnt that a man may be perfectly well aware that he is committing a murder, and know murders to be forbidden in the ten commandments, and yet unable to refrain from murder. he has, say the doctors, homicidal monomania, and it is monstrous to call in the hangman when you ought to be sending for the doctor. the lawyer naturally objects to the introduction of this uncertain element, which may be easily turned to account by 'experts' capable of finding symptoms of all kinds of monomania. fitzjames, however, after an elaborate discussion, decides that the law ought to take account of mental disease which operates by destroying the power of self-control. the jury, he thinks, should be allowed to say either 'guilty,' or 'not guilty on the ground of insanity,' or 'guilty, but his power of self-control was diminished by insanity.'[ ] i need not go into further detail, into a question which seems to be curiously irritating to both sides. i am content to observe that in the earlier book fitzjames had been content with the existing law, and that the change of opinion shows very careful and candid consideration of the question, and, as i think, an advance to more moderate and satisfactory conclusions. the moral view of the question comes out in other relations. he intimates now and then his dissatisfaction with the modern sentimentalism, his belief in the value of capital and other corporal punishments, and his doubt whether the toleration of which he has traced the growth can represent more than a temporary compromise. but these represent mere _obiter dicta_ which, as he admits, are contrary to popular modes of thought. he is at least equally anxious to secure fair play for the accused. he dwells, for example, upon the hardships inflicted upon prisoners by the english system of abstinence from interrogation. the french plan, indeed, leads to cruelty, and our own has the incidental advantage of stimulating to the search of independent evidence. 'it is much pleasanter,' as an indian official remarked to him by way of explaining the practice of extorting confessions in india, 'to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence.'[ ] fitzjames, however, frequently remarked that poor and ignorant prisoners, unaccustomed to collect their ideas or to understand the bearing of evidence, are placed at a great disadvantage by never having stated their own cases. the proceedings must pass before them 'like a dream which they cannot grasp,' and their counsel, if they have counsel, can only guess at the most obvious line of defence. he gives instances of injustice inflicted in such cases, and suggests that the prisoners should be made competent witnesses before both the magistrates and the judge. this would often enable an innocent man to clear up the case; and would avoid the evils due to the french system.[ ] without going further into this or other practical suggestions, i will quote his characteristic conclusion. the criminal law, he says, may be regarded as an expression of the second table of the ten commandments. it follows step by step the exposition of our duty to our neighbours in the catechism. there was never more urgent necessity for preaching such a sermon than there is at present. there was never so much doubt as to other sanctions. the religious sanction, in particular, has been 'immensely weakened, and people seem to believe that if they do not happen to like morality, there is no reason why they should be moral.' it is, then, 'specially necessary to those who do care for morality to make its one unquestionable indisputable sanction as clear and strong and emphatic as acts and words can make it. a man may disbelieve in god, heaven, and hell; he may care little for mankind, or society, or for the nation to which he belongs--let him at least be plainly told what are the acts which will stamp him with infamy, hold him up to public execration and bring him to the gallows, the gaol, or the lash.'[ ] that vigorous summary shows the connection between the 'liberty, equality, fraternity,' the various codifying enterprises, and his writings upon theology and ethics. the remarkable point, if i am not mistaken, is that in spite of the strong feeling indicated by the passage just quoted, the tone of the book is throughout that of sound common sense, impartiality, and love of fair play. it is characteristic that in spite of his prejudice against the commonplaces about progress, he does, in fact, show that the history of criminal law is in many most important respects the history of a steady advance in humanity and justice. nor, in spite of a reservation or two against 'sentimentalism,' does he fail to show hearty sympathy with the process of improvement. ii. 'nuncomar and impey' in the summer ( ) which followed the publication of the 'history,' it began to appear that fitzjames's health was not quite so vigorous as it had hitherto been. he could not throw off the effects of a trifling accident in june so rapidly as of old; and in the last months of the year his condition caused for a time some anxiety to his wife. considered by the light of what afterwards happened, these symptoms probably showed that his unremitting labours had inflicted a real though as yet not a severe injury upon his constitution. for the present, however, it was natural to suppose that he was suffering from nothing more than a temporary exhaustion, due, perhaps, to the prolonged wrestle with his great book. rest, it was believed, would fully restore him. he was, indeed, already at work again upon what turned out to be his last considerable literary undertaking. the old project for a series of law-books probably seemed rather appalling to a man just emerging from his recent labours; and those labours had suggested another point to him. the close connection between our political history and our criminal law had shown that a lawyer's technical knowledge might be useful in historical research. he resolved, therefore, to study some of the great trials 'with a lawyer's eye'; and to give accounts of them which might exhibit the importance of this application of special knowledge.[ ] he soon fixed upon the impeachment of warren hastings. this not only possessed great legal and historical interest, but was especially connected with his favourite topics. it would enable him to utter some of his thoughts about india, and to discuss some very interesting points as to the application of morality to politics. he found that the materials were voluminous and intricate. many blue books had been filled by the labours of parliamentary committees upon india; several folio volumes were filled with reports of the impeachment of hastings, and with official papers connected with the same proceeding. a mass of other materials, including a collection of sir elijah impey's papers in the british museum, soon presented themselves. finally, fitzjames resolved to make an experiment by writing a monograph upon 'impey's trial of nuncomar,' which is an episode in the great warren hastings story, compressible within moderate limits. impey, as fitzjames remarks incidentally, had certain claims both upon him and upon macaulay; for he had been a fellow of trinity and had made the first attempt at a code in india. if this first book succeeded fitzjames would take up the larger subject. in the event he never proceeded beyond the preliminary stage. his 'story of nuncomar and the impeachment of sir elijah impey,' published in the spring of , gives the result. fitzjames had been familiar from his boyhood with the famous article upon warren hastings, in which macaulay reached the very culminating point of his surpassing literary skill. it is a skill which, whatever else may be said of it, makes his opponents despair. they may disprove his statements; they can hardly hope to displace his versions of fact from their hold upon popular belief. one secret of macaulay's art is suggested by the account of his delight in 'castle-building.' his vast reading and his portentous memory enabled him to create whole galleries of mental pictures of the past, and his vigorous style embodies his visions with admirable precision and sharpness of outline. but, as those who have followed him in detail became painfully aware, there is more than one deduction to be made from his merits. his imagination undoubtedly worked upon a great mass of knowledge; but the very nature of the imaginative process was to weave all the materials into a picture, and therefore to fill up gaps by conjecture. he often unconsciously makes fancy do the work of logic. 'the real history' (of the famous quarrel between addison and steele), says macaulay, 'we have little doubt, was something like this': and he proceeds to tell a story in minute detail as vividly as if he had been an eye-witness. to him, the clearness of the picture was a sufficient guarantee of its truthfulness. it was only another step to omit the 'doubt' and say simply 'the real history was.' yet all the time the real history according to the best evidence was entirely different. we can never be certain whether one of macaulay's brilliant pictures is--as it sometimes certainly is--a fair representation of a vast quantity of evidence or an audacious inference from a few hints and indications. it represents, in either case, the effect upon his mind; but the effect, if lively enough, is taken to prove itself. he will not condescend to the prosaic consideration of evidence, or to inserting the necessary 'ifs' and 'perhapses' which disturb so painfully the impression of a vivid narrative. when his strong party feelings have coloured his beliefs from the first, his beliefs acquire an intensity which enables them not only to dispense with but to override evidence. i insist upon this because fitzjames's mental excellencies and defects exactly invert macaulay's. his imagination did not clothe the evidence with brilliant colours; and, on the other hand, did not convert conjectures into irresistible illusions. the book upon 'nuncomar and impey' shows the sound judgment of evidence in regard to a particular fact which professor maitland perceives in his treatment of mediæval affairs. it is an exhaustive, passionless, and shrewd inquiry into the facts. he speaks in one of his letters of the pleasure which he has discovered in treating a bit of history 'microscopically'; in getting at the ultimate facts instead of trusting to the superficial summaries of historians. in brief, he is applying to an historical question the methods learnt in the practice of the courts of law. the book is both in form and substance the careful summing up of a judge in a complicated criminal case. the disadvantage, from a literary point of view, is obvious. if we were profoundly interested in a trial for murder, we should also follow with profound interest the summing up of a clear-headed businesslike judge. but, if we did not care two straws whether the man were guilty or innocent, we might find the summing up too long for our patience. that, i fear, may be true in this case. macaulay's great triumph was to create an interest in matters which, in other hands, were repulsively dry. fitzjames could not create such an interest; though his account may be deeply interesting to those who are interested antecedently. he observes himself that his 'book will be read by hardly anyone, while macaulay's paragraph will be read with delighted conviction by several generations.' so long as he is remembered at all, poor impey will stand in a posthumous pillory as a corrupt judge and a judicial murderer.[ ] one reason is, no doubt, that the effect of a pungent paragraph is seldom obliterated by a painstaking exposure of its errors requiring many pages of careful and guarded reasoning. macaulay's narrative could be superseded in popular esteem only by a writer who should condense a more correct but equally dogmatic statement into language as terse and vivid as his own. yet fitzjames's book must be studied by all conscientious historians in future, and will help, it is to be hoped, to spread a knowledge of the fact that macaulay was not possessed of plenary inspiration. it will be enough to give one instance of macaulay's audacity. 'every schoolboy of fourteen' knows by heart his vivid account of the reign of terror produced by impey's exercise of the powers of the supreme court, and of the bribe by which hastings bought him off. a powerful and gloomy picture is drawn in two or three expressive paragraphs. the objection to the story, says fitzjames, 'is that it is absolutely false from end to end, and in almost every particular.'[ ] fitzjames proceeds not only to assert the absence of evidence, but to show what was the supposed evidence out of which macaulay's imagination conjured this vision of horror. fitzjames remarks in a letter that his investigations had given him a very low opinion of the way in which history was written, and certainly, if macaulay's statement was a fair specimen, the estimate could hardly be too low. i may admit that, to my mind, the purely judicial method followed by fitzjames has its disadvantages. it tends to the exclusion of considerations which, though rightly excluded from a criminal inquiry, cannot be neglected by an historian. a jury would be properly directed to acquit hastings upon the charge of having instigated the prosecution of nuncomar. yet, after all, it is very hard to resist the impression that he must have had some share, more or less direct, in producing an event which occurred just at the right moment and had such fortunate results for him. it would be very wrong to hang a man upon such presumptions; but it is impossible to deny that they have a logical bearing upon the facts. however this may be, i think it is undeniable that fitzjames did good service to history in showing once for all the ruthlessness and extravagance of macaulay's audacious rhetoric. it is characteristic that while making mincemeat of macaulay's most famous essay, fitzjames cannot get rid of his tenderness for the great 'tom' of his boyish days. besides praising the literary skill, which indeed, is part of his case, he parts from his opponent with the warm eulogy which i have previously noticed. he regards macaulay as deluded by james mill and by the accepted whig tradition. he condemns mill, whose dryness and severity have gained him an undeserved reputation for impartiality and accuracy; he speaks--certainly not too strongly--of the malignity of francis; and he is, i think, a little hard upon burke, sheridan, and elliot, who were misled by really generous feelings (as he fully admits) into the sentimental rhetoric by which he was always irritated. he treats them as he would have put down a barrister trying to introduce totally irrelevant eloquence. macaulay escapes more easily. fitzjames felt that the essay when first published was merely intended as a summary of the accepted version, making no pretensions to special research. the morality of this judgment is questionable. burke, believing sincerely that hastings was a wicked and corrupt tyrant, inferred logically that he should be punished. macaulay, accepting burke's view of the facts, calmly asserts that hastings was a great criminal, and yet with equal confidence invites his readers to worship the man whose crimes were useful to the british empire. fitzjames disbelieved in the crimes, and could therefore admire hastings without reserve as the greatest man of the century. his sympathy with macaulay's patriotism made him, i think, a little blind to the lax morality with which it was in this case associated. there is yet another point upon which i think that macaulay deserves a severer sentence. 'it is to be regretted,' says fitzjames, 'that macaulay should never have noticed the reply made to the essay by impey's son.'[ ] unluckily this is not a solitary instance. macaulay, trusting to his immense popularity, took no notice of replies which were too dull or too complicated to interest the public. fitzjames would himself have been utterly incapable of behaviour for which it is difficult to discover an appropriate epithet, but which certainly is inconsistent with a sincere and generous love of fair play. if he did not condemn macaulay more severely, i attribute it to the difficulty which he always felt in believing anything against a friend or one associated with his fondest memories. had i written the book myself, i should have felt bound to say something unpleasant: but i am hardly sorry that fitzjames tempered his justice with a little excess of mercy. the scheme of continuing this book by an account of warren hastings was not at once dropped, but its impracticability became obvious before many months had passed. fitzjames was conducting the derby assizes in april , when he had a very serious attack of illness. his wife was fortunately with him, and, after consulting a doctor on the spot, he returned to london, where he consulted sir andrew clark. a passage from a letter to lady egerton explains his view of what had happened. 'i suppose,' he says (april , ), 'that mary has told you the dreadful tale of my getting up in the morning and finding that my right hand had either forgot its cunning or had turned so lazy that i could not write with it, and how i sent for a derby doctor, and how he ordered me up to london, and how clark condemned me to three months' idleness and prison diet--i must admit, of a sufficiently liberal kind. fuller sees the sentence carried out in detail. i have had about three days' experience of it, and i must own that i already feel decidedly better. i think that after the long vacation i shall be thoroughly well again. in the meantime, i feel heartily ashamed of myself. i always did consider any kind of illness or weakness highly immoral, but one must not expect to be either better or stronger than one's neighbours; and i suppose there is some degree of truth in what so many people say on sundays about their being miserable sinners.' he adds that he is having an exceedingly pleasant time, which would be still more pleasant if he could write with his own hand (the letter is dictated). he has 'whole libraries of books' into which he earnestly desires to look. he feels like a man who has exchanged dusty boots for comfortable slippers; he is reading spanish 'with enthusiasm'; longing to learn italian, to improve his german, and even to read up his classics. he compares himself to a traveller in siberia who, according to one of his favourite anecdotes, loved raspberries and found himself in a desert entirely covered with his favourite fruit. he took the blow gallantly; perhaps rather too lightly. he was, of course, alarmed at first by the symptoms described. clark ultimately decided that, while the loss of power showed the presence of certain morbid conditions, a careful system of diet might keep at bay for an indefinite time the danger of the development of a fatal disease. fitzjames submitted to the medical directions with perhaps a little grumbling. he was not, like his father, an ascetic in matters of food. he had the hearty appetite natural to his vigorous constitution. he was quite as indifferent as his father to what, in the old phrase, used to be called 'the pleasures of the table.' he cared absolutely nothing for the refinements of cookery, and any two vintages were as indistinguishable to him as two tunes--that is, practically identical. he cared only for simple food, and i used, in old days, to argue with him that a contempt for delicacies was as fastidious as a contempt for plain beef and mutton. however that may be, he liked the simplest fare, but he liked plenty of it. to be restricted in that matter was, therefore, a real hardship. he submitted, however, and his health improved decidedly for the time. perhaps he dismissed too completely the thought of the danger by which he was afterwards threatened. but, in spite of the improvement, he had made a step downwards. he was allowed to go on circuit again in the summer, after his three months' rest, and soon felt himself quite equal to his work. but, from this time, he did not add to his burthens by undertaking any serious labours of supererogation. iii. judicial characteristics i will here say what i can of his discharge of the judicial functions which were henceforth almost his sole occupation. in the first place, he enjoyed the work, and felt himself to be in the position most suitable to his powers. independent observers took, i believe, the same view. i have reported the criticisms made upon his work at the bar, and have tried to show what were the impediments to his success. in many respects these impediments ceased to exist, and even became advantages, when he was raised to the bench. the difficulty which he had felt in adapting himself to other men's views, the contempt for fighting battles by any means except fair arguments upon the substantial merits of the case, were congenial, at least, to high judicial qualities. he despised chicanery of all kinds, and formed independent opinions upon broad grounds instead of being at the mercy of ingenious sophistry. he was free from the foibles of petty vanity upon which a dexterous counsel could play, and had the solid, downright force of mind and character which gives weight to authority of all kinds. i need not labour to prove that masculine common sense is a good judicial quality. popular opinion, however, is apt to misconstrue broad epithets and to confound vigour with harshness. fitzjames acquired, among careless observers, a certain reputation for severity. i have not the slightest wish to conceal whatever element of truth there might be in such a statement. but i must begin by remarking a fact which, however obvious, must be explicitly stated. if there was one thing hateful to fitzjames, and sure to call out his strongest indignation, it was oppression in any form. the bullying from which he suffered at school had left, as i have said, a permanent hatred for bullies. it had not encouraged him, as it encourages the baser natures, to become a bully in his turn, but rather to hate and trample down the evil thing wherever he met it. his theories, as i have said, led him to give a prominent place (too prominent, as i think) to what he called 'coercion.' coercion in some form was inevitable upon his view; but right coercion meant essentially the suppression of arbitrary violence and the substitution for it of force regulated by justice. coercion, in the form of law, was identical with the protection of the weak against the strong and the erection of an impregnable barrier against the tyrannous misuse of power. this doctrine exactly expressed his own character, for, as he was strong, he was also one of the most magnanimous of men. he was incapable of being overbearing in social intercourse. he had the fighting instinct to the full. an encounter with a downright enemy was a delight to him. but the joy of battle never deadened his instinct of fair play. he would speak his mind, sometimes even with startling bluntness, but he never tried to silence an opponent by dogmatism or bluster. the keenest argument, therefore, could not betray him into the least discourtesy. he might occasionally frighten a nervous antagonist into reticence and be too apt to confound such reticence with cowardice. but he did not take advantage of his opponent's weakness. he would only give him up as unsuited to play the game in the proper temper. in short, he represented what is surely the normal case of an alliance between manliness and a love of fair play. it is the weaker and more feminine, or effeminate, nature that is generally tempted to resort to an unfair use of weapons. when, therefore, fitzjames found himself in a position of authority, he was keenly anxious to use his power fairly. he became decidedly more popular on the bench than he had been at the bar. his desire to be thoroughly fair could not be stronger; but it had a better opportunity of displaying itself. the counsel who practised before him recognised his essential desire to allow them the fullest hearing. he learnt to 'suffer fools' patiently, if not gladly. i apologise, of course, for supposing that any barrister could be properly designated by such a word; but even barristers can occasionally be bores. some gentlemen, who are certainly neither the one nor the other, have spoken warmly of his behaviour. the late mr. montagu williams, for example, tells with pleasant gratitude how fitzjames courteously came down from the bench to sit beside him and so enabled him to spare a voice which had been weakened by illness. his comment is that fitzjames concealed 'the gentleness of a woman' under a stern exterior. so mr. henry dickens tells me of an action for slander in which he was engaged when a young barrister. both slanderer and slandered were employed in billingsgate. the counsel for the defence naturally made a joke of sensibility to strong language in that region. mr. dickens was in despair when he saw that the judge and jury were being carried away by the humorous view of the case. knowing the facts, he tried to bring out the serious injury which had been inflicted. fitzjames followed him closely, became more serious, and summed up in his favour. when a verdict had been returned accordingly, he sent a note to this effect:--'dear dickens, i am very grateful to you for preventing me from doing a great act of injustice.' 'he was,' says mr. dickens, 'one of the fairest-minded men i ever knew.' his younger son has described to me the kindness with which he encouraged a young barrister--the only one who happened to be present--to undertake the defence of a prisoner, and helped him through a difficult case which ended by an acquittal upon a point of law. 'i only once,' says my nephew, 'heard him interrupt counsel defending a prisoner,' except in correcting statements of fact. the solitary exception was in a case when palpably improper matter was being introduced. in spite of his patience, he occasionally gave an impression of irritability, for a simple reason. he was thoroughly determined to suppress both unfairness and want of courtesy or disrespect to the court. when a witness or a lawyer, as might sometimes happen, was insolent, he could speak his mind very curtly and sharply. a powerful voice and a countenance which could express stern resentment very forcibly gave a weight to such rebukes, not likely to be forgotten by the offender. he had one quaint fancy, which occasionally strengthened this impression. witnesses are often exhorted to 'watch his lordship's pen' in order that they may not outrun his speed in taking notes. now fitzjames was proud of his power of rapid writing (which, i may remark, did not include a power of writing legibly). he was therefore nervously irritable when a witness received the customary exhortation: 'if you watch my pen,' he said to a witness, 'i will send you to prison': which, as he then had to explain, was not meant seriously. it came to be understood that, in his case, the formula was to be avoided on pain of being considered wantonly offensive. he rigidly suppressed, at any rate, anything which could lower the dignity of the proceedings. he never indulged in any of those jokes to which reporters append--sometimes rather to the reader's bewilderment--the comment, 'loud laughter.' nor would he stand any improper exhibitions of feeling in the audience. when a spectator once laughed at a piece of evidence which ought to have caused disgust, he ordered the man to be placed by the side of the prisoner in the dock, and kept him there till the end of the trial. he disliked the promiscuous attendance of ladies at trials, and gave offence on one occasion by speaking of some persons of that sex who were struggling for admission as 'women.' he was, however, a jealous defender of the right of the public to be present under proper conditions; and gave some trouble during a trial of dynamiters, when the court-house had been carefully guarded, by ordering the police to admit people as freely as they could. his sense of humour occasionally made itself evident in spite of his dislike to levity. he liked to perform variations upon the famous sentence, 'god has, in his mercy, given you a strong pair of legs and arms, instead of which you go about the country stealing ducks'; and he would detail absurd or trifling stories with an excess of solemnity which betrayed to the intelligent his perception of their comic side. fitzjames thought, and i believe correctly, that he was at his best when trying prisoners, and was also perhaps conscious, with equal reason, i believe, that no one could do it better. his long experience and thorough knowledge of the law of crime and of evidence were great qualifications. his force of character combined with his hatred of mere technicalities, and his broad, vigorous common sense, enabled him to go straight to the point and to keep a firm hand upon the whole management of the case. no rambling or irrelevance was possible under him. his strong physique, and the deep voice which, if not specially harmonious, was audible to the last syllable in every corner of the court, contributed greatly to his impressiveness. he took advantage of his strength to carry out his own ideal of a criminal court as a school of morality. 'it may be truly said,' as he remarks, 'that to hear in their happiest moments the summing up of such judges as lord campbell, lord chief justice erle, or baron parke, was like listening not only (to use hobbes's famous expression) to law living and armed, but to justice itself.'[ ] he tried successfully to follow in their steps. justice implies fair play to the accused. i have already noticed how strongly he insists upon this in his writings. they show how deeply he had been impressed in his early years at the bar by the piteous spectacle of poor ignorant wretches, bewildered by an unfamiliar scene, unable to collect their thoughts, or understand the nature of the proceedings, and sometimes prevented by the very rules intended for their protection from bringing out what might be a real defence. many stories have been told me of the extreme care with which he would try to elicit the meaning of some muddled remonstrance from a bewildered prisoner, and sometimes go very near to the verge of what is permitted to a judge by giving hints which virtually amounted to questions, and so helping prisoners to show that they were innocent or had circumstances to allege in mitigation. he always spoke to them in a friendly tone, so as to give them the necessary confidence. a low bully, for example, was accused of combining with two women to rob a man. a conviction seemed certain till the prisoners were asked for their defence; when one of them made a confused and rambling statement. fitzjames divined the meaning, and after talking to them for twenty minutes, during which he would not directly ask questions, succeeded in making it clear that the prosecutor was lying, and obtained an acquittal. one other incident out of many will be enough. a man accused of stabbing a policeman to avoid arrest, pleaded guilty and was sentenced to seven years' penal servitude. on being removed by the warders he clung to the rail, screaming, 'you can't do it. you don't know what you are doing!' fitzjames shouted to the warders to put him back; discovered by patient hearing that the man was meaning to refer to some circumstance in extenuation, and after calling the witnesses found that the statement was confirmed. 'now, you silly fellow,' he said, 'if you had pleaded "not guilty," as i told you, all this would have come out. it is true that i did not know what i was doing, but it was your own fault.' he then reduced the sentence to nine months, saying, 'does that satisfy you?' 'thank you, my lord,' replied the man, 'that's quite right,' and left the court quite cheerfully. fitzjames was touched by the man's confidence in a judge, and by his accurate knowledge of the proper legal tariff of punishment. fitzjames was scrupulously anxious in other ways not to wrest the law, even if unsatisfactory in itself, out of dislike to the immediate offender. one instance is given by the curious case of the queen v. ashwell (in ). a man had borrowed a shilling from another, who gave him a sovereign by mistake. the borrower discovered the mistake an hour afterwards, and appropriated the sovereign. morally, no doubt, he was as dishonest as a thief. but the question arose whether he was in strict law guilty of larceny. fitzjames delivered an elaborate judgment to show that upon the accepted precedents of law, he was not guilty, inasmuch as the original act of taking was innocent. another aspect of justice, upon which fitzjames dwells in his books, was represented in his practice. a judge, according to him, is not simply a logic machine working out intellectual problems, but is the organ of the moral indignation of mankind. when, after a studiously fair inquiry, a man had been proved to be a scoundrel, he became the proper object of wrath and of the punishment by which such wrath is gratified. fitzjames undeniably hated brutality, and especially mean brutality; he thought that gross cruelty to women and children should be suppressed by the lash, or, if necessary, by the gallows. his sentences, i am told, were not more severe than those of other judges: though mention is made of one case in early days in which he was thought to be too hard upon a ruffian who, on coming out of gaol, had robbed a little child of a sixpence. but his mode of passing sentence showed that his hatred of brutality included hatred of brutes. he did not affect to be reluctant to do his duty. he did not explain that he was acting for the real good of the prisoner, or apologise for being himself an erring mortal. he showed rather the stern satisfaction of a man suppressing a noxious human reptile. thus, though he carefully avoided anything savouring of the theatrical, the downright simplicity with which he delivered sentence showed the strength of his feeling. he never preached to the convicts, but spoke in plain words of their atrocities. the most impressive sentence i ever heard, says one of his sons, was one upon a wife-murderer at norwich, when he rigidly confined himself to pointing out the facts and the conclusiveness of the evidence. another man was convicted at manchester of an attempt to murder his wife. he had stabbed her several times in the neck, but happened to miss a fatal spot; and he cross-examined her very brutally on the trial. fitzjames, in delivering sentence, told him that a man who had done the same thing, but with better aim, 'stood at the last assizes where you now stand, before the judge who is now sentencing you. the sentence upon him was that he should be hanged by the neck till he was dead, and he was hanged by the neck till he was dead.' the words emphatically pronounced produced a dead silence, with sobs from the women in court. it was, he proceeded, by a mere accident that the result of the prisoner's crime was different, and that, therefore, the gravest sentence was the only proper sentence; and that is 'that you be kept in penal servitude for the term of your natural life.' this again was spoken with extreme earnestness: and the 'life' sounded like a blow. there was a scream from the women, and the prisoner dropped to the ground as if he had been actually struck. fitzjames spoke as if he were present at the crime, and uttering the feelings roused by the ferocious treatment of a helpless woman. some of his letters record his sense of painful responsibility when the question arose as to reprieving a prisoner. he mentions a case in which he had practically had to decide in favour of carrying out a capital sentence. 'for a week before,' he writes, 'i had the horrible feeling of watching the man sinking, and knowing that i had only to hold out my hand to save his life. i felt as if i could see his face and hear him say, "let me live; i am only thirty-five; see what a strong, vigorous, active fellow i am, with perhaps fifty years before me: must i die?" and i mentally answered, yes, you must. i had no real doubts and i feel no remorse; but it was a very horrible feeling--all the worse because when one has a strong theoretical opinion in favour of capital punishment one is naturally afraid of being unduly hard upon a particular wretch to whom it is one's lot to apply the theory.' on another occasion he describes a consultation upon a similar case with sir w. harcourt, then home secretary. both of them felt painfully the contrast with their old free conversations, and discussed the matter with the punctilious ceremony corresponding to the painfulness of the occasion. there was something, as they were conscious, incongruous in settling a question of life and death in a talk between two old friends. i must briefly mention two such cases which happened to excite public attention. on july and , , a man named lipski was tried for a most brutal murder and convicted. his attorney wrote a pamphlet disputing the sufficiency of the evidence.[ ] fitzjames was trying a difficult patent case which took up the next fortnight (august to ). he saw the attorney on monday, the th, and passed that evening and the next morning in writing his opinion to the home secretary (mr. h. matthews). on thursday he had another interview with the attorney and a thorough discussion of the whole matter with mr. matthews. some points had not been properly brought out on the trial; but the inquiry only strengthened the effect of the evidence. mr. matthews decided not to interfere, and fitzjames went to stay with froude at salcombe on the saturday. meanwhile articles full of gross misstatements had appeared in certain newspapers. fitzjames himself reflected that his occupation with the patent case had perhaps prevented his giving a full consideration to the case, and that an immediate execution of the sentence would at least have an appearance of undue haste. he therefore telegraphed to suggest a week's respite, though he felt that the action might look like yielding to the bullying of a journalist. mr. matthews had independently granted a respite upon a statement that a new piece of evidence could be produced. fitzjames returned on the monday, and spent a great part of the week in reading through all the papers, reexamining a witness, and holding consultations with mr. matthews. the newspapers were still writing, and members of parliament signed a request for a commutation of the sentence. after the most careful consideration, however, fitzjames could entertain no reasonable doubt of the rightness of the verdict, and mr. matthews agreed with him. a petition from three jurors was sent in upon sunday, the st, but did not alter the case. finally, upon the same afternoon, lipski confessed his guilt and the sentence was executed next day. 'i hope and believe that i have kept the right path,' writes fitzjames, 'but it has been a most dreadful affair.' 'i hardly ever remember so infamous and horrible a story.' he was proportionally relieved when it was proved that he had acted rightly. the other case, for obvious reasons, must be mentioned as briefly as possible. on august , , mrs. maybrick was convicted of the murder of her husband. the sentence was afterwards commuted with fitzjames's approval, and, i believe, at his suggestion, to penal servitude for life, upon the ground, as publicly stated, that although there was no doubt that she had administered poison, it was possible that her husband had died from other causes. a great deal of feeling was aroused: fitzjames was bitterly attacked in the press, and received many anonymous letters full of the vilest abuse. hatred of women generally, and jealousy of the counsel for the defence were among the causes of his infamous conduct suggested by these judicious correspondents. i, of course, have nothing to say upon these points, nor would i say anything which would have any bearing upon the correctness of the verdict. but as attacks were made in public organs upon his behaviour as judge, i think it right to say that they were absolutely without foundation. his letters show that he felt the responsibility deeply; and that he kept his mind open till the last. from other evidence i have not the least doubt that his humanity and impartiality were as conspicuous in this as in other cases, and i believe were not impugned by any competent witnesses, even by those who might doubt the correctness of the verdict. fitzjames's powers were such as naturally gave him unsurpassed authority with juries in criminal cases. a distinguished advocate was about to defend a prisoner upon two similar counts before fitzjames and another eminent judge. the man was really guilty: but, said the counsel, and his prediction was verified, i shall obtain a verdict of 'not guilty' before the other judge, but not before stephen. in civil cases, i am told that an impartial estimate of his merits would require more qualification. the aversion to technicality and over-subtlety, to which i have so often referred, appears to have limited his powers. he did not enjoy for its own sake the process of finding a clue through a labyrinth of refined distinctions, and would have preferred a short cut to what seemed to him the substantial merits of the case. he might, for example, regard with some impatience the necessity of interpreting the precise meaning of some clause in a legal document which had been signed by the parties concerned as a matter of routine, without their attention being drawn to the ambiguities latent in their agreement. his experience had not made him familiar with the details of commercial business, and he had to acquire the necessary information rather against the grain. to be a really great lawyer in the more technical sense, a man must, i take it, have a mind full of such knowledge, and feel pleasure in exercising the dialectical faculty by which it is applied to new cases. in that direction fitzjames was probably surpassed by some of his brethren; and he contributed nothing of importance to the elaboration of the more technical parts of the law. i find, however, that his critics are agreed in ascribing to him with remarkable unanimity the virtue of 'open-mindedness.' his trenchant way of laying down his conclusions might give the impression that they corresponded to rooted prejudices. such prejudices might of course intrude themselves unconsciously into his mind, as they intrude into the minds of most of us. but no one could be more anxious for fair play in argument as in conduct. he would give up a view shown to be erroneous with a readiness which often seemed surprising in so sturdy a combatant. he spared no pains in acquiring whatever was relevant to a case; whether knowledge of unfamiliar facts or of legal niceties and previous judicial decisions. though his mind was not stored with great masses of cases, he never grudged the labour of a long investigation. he aimed at seeing the case as a whole; and bringing out distinctly the vital issues and their relation to broad principles. he used to put the issues before the jury as distinctly as possible, and was then indifferent to their decision. in a criminal case he would have been inexpressibly shocked by a wrongful conviction, and would have felt that he had failed in his duty if a conviction had not taken place when the evidence was sufficient. in a civil case, he felt that he had done his work when he had secured fair play by a proper presentation of the question to the jury. his mastery of the laws of evidence would give weight to his opinion upon facts; though how far he might be open to the charge of cutting too summarily knots which might have been untied by more dexterity and a loving handling of legal niceties, is a question upon which i cannot venture to speak positively. i will only venture to refer to two judgments, which may be read with interest even by the unprofessional, as vigorous pieces of argument and lucid summaries of fact. one is the case ( ) of the 'attorney-general v. the edison telephone company,'[ ] in which the question arose whether a telephonic message was a telegram. if so, the company were infringing the act which gave to the post office the monopoly of transmitting telegrams. it was argued that the telephone transmitted the voice itself, not a mere signal. fitzjames pointed out that it might be possible to hear both the voice transmitted through the air and the sound produced by the vibrations of the wire. could the two sounds, separated by an interval, be one sound? the legal point becomes almost metaphysical. on this and other grounds fitzjames decided that a telephone was a kind of telegraph, and the decision has not been disturbed. the other case was that of the queen v. price,[ ] tried at cardiff in . william price, who called himself a druid, was an old gentleman of singularly picturesque appearance who had burnt the body of his child in conformity, i presume, with what he took to be the rites of the druids. he was charged with misdemeanour. fitzjames gave a careful summary of the law relating to burials which includes some curious history. he concluded that there was no positive law against burning bodies, unless the mode of burning produced a nuisance. the general principle, therefore, applied that nothing should be a crime which was not distinctly forbidden by law. the prisoner was acquitted, and the decision has sanctioned the present practice of cremation. fitzjames, as i gather from letters, was much interested in the quaint old druid, and was gratified by his escape from the law. iv. miscellaneous occupations i have now described the most important labours which fitzjames undertook after his appointment to a judgeship. every minute of the first six years ( - ) might seem to have been provided with ample occupation. even during this period, however, he made time for a few short excursions into other matters, and though after he undertook no heavy task, he was often planning the execution of the old projects, and now and then uttering his opinions through the accustomed channels. he was also carrying on a correspondence, some of which has been kindly shown to me. the correspondence with lord lytton continued, though it naturally slackened during lytton's stay in england, from to . it revived, though not so full and elaborate as of old, when, in , lytton became ambassador at paris. fitzjames's old friend, grant duff, was governor of madras from to , and during that period especially, fitzjames wrote very fully to lady grant duff, who was also a correspondent both before and afterwards. if i had thought it desirable to publish any number of these or the earlier letters, i might have easily swelled this book to twice or three times its size. that is one good reason for abstaining. other reasons are suggested by the nature of the letters themselves. they are written with the utmost frankness, generally poured out at full speed in intervals of business or some spare moments of his so-called vacation. they made no pretensions to literary form, and approach much more to discursive conversations than to anything that suggests deliberate composition. much of them, of course, is concerned with private matters which it would be improper to publish. a large part, again, discusses in an unguarded fashion the same questions of which he had spoken more deliberately in his books. there is no difference in the substance, and i have thought it only fair to him to take his own published version of his opinions, using his letters here and there where they incidentally make his views clearer or qualify sharp phrases used in controversy. i have, however, derived certain impressions from the letters of this period and from the miscellaneous articles of the same time; which i shall endeavour to describe before saying what remains to be said of his own personal history. one general remark is suggested by a perusal of the letters. fitzjames says frequently and emphatically that he had had one of the happiest of lives. in the last letter of his which i have seen, written, indeed, when writing had become difficult for him, he says that he is 'as happy as any man can be,' and had nothing to complain of--except, indeed, his illegible handwriting. this is only a repetition of previous statements at every period of his life. when he speaks of the twenty-five years of long struggle, which had enabled him to rise from the bar to the bench, he adds that they were most happy years, and that he only wishes that they could come over again. it is difficult, of course, to compare our lot with that of our neighbours. we can imagine ourselves surrounded by their circumstances, but we cannot so easily adopt their feelings. fitzjames very possibly made an erroneous estimate of the pains and pleasures which require sensibilities unlike his own; and conversely it must be remembered that he took delight in what would to many men be a weariness of the flesh. the obviously sincere belief, however, in his own happiness proves at least one thing. he was thoroughly contented with his own position. he was never brooding over vexations, or dreaming of what might have been. could he have been asked by providence at any time, where shall i place you? his answer would almost always have been, here. he gives, indeed, admirable reasons for being satisfied. he had superabundant health and strength, he scarcely knew what it was to be tired, though he seemed always to be courting fatigue, or, if tired, he was only tired enough to enjoy the speedy reaction. his affections had a strength fully proportioned to his vigour of mind and body; his domestic happiness was perfect; and he had a small circle of friends both appreciative and most warmly appreciated. finally, if the outside world was far from being all that he could wish, it was at least superabundantly full of interest. though indifferent to many matters which occupy men of different temperament, he had quite enough not only to keep his mind actively engaged, but to suggest indefinite horizons of future inquiry of intense interest. he was in no danger of being bored or suffering from a famine of work. under such conditions, he could not help being happy. yet fitzjames's most decided convictions would have suited a thorough-going pessimist. neither swift nor carlyle could have gone much beyond him in condemning the actual state of the political or religious condition of the world. things, on the whole, were in many directions going from bad to worse. the optimist is apt to regard these views as wicked, and i do not know whether it will be considered as an aggravation or an extenuation of his offence that, holding such opinions, fitzjames could be steadily cheerful. i simply state the fact. his freedom from the constitutional infirmities which embittered both the great men i have mentioned, and his incomparably happier domestic circumstances, partly account for the difference. but, moreover, it was an essential part of his character to despise all whining. there was no variety of person with whom he had less sympathy than the pessimist whose lamentations suggest a disordered liver. he would have fully accepted the doctrine upon which mr. herbert spencer has insisted, that it is a duty to be happy. moreover, the way to be happy was to work. work, i might almost say, was his religion. 'be strong and of a good courage' was the ultimate moral which he drew from doubts and difficulties. everything round you may be in a hideous mess and jumble. that cannot be helped: take hold of your tools manfully; set to work upon the job that lies next to your hand, and so long as you are working well and vigorously, you will not be troubled with the vapours. be content with being yourself, and leave the results to fate. sometimes with his odd facility for turning outwards the ugliest side of his opinions, he would call this selfishness. it is a kind of selfishness which, if everyone practised it, would not be such a bad thing. i must mention, though briefly, certain writings which represent his views upon religious matters: i have sufficiently indicated his position, which was never materially changed. his thoughts ran in the old grooves, though perhaps with a rather clearer perception of their direction. in june he published an article upon the 'unknown and the unknowable' in the 'nineteenth century,' declaring that mr. herbert spencer's 'unknowable' and mr. harrison's 'humanity' were mere shadowy figments. 'religion,' he maintains, will not survive theology. to this, however, he adds, with rather surprising calmness, that morality will survive religion. if the agnostics and positivists triumph, it will be transformed, not abolished. the christian admiration for self-sacrifice, indeed, and the christian mysticism will disappear, and it will turn out that the respectable man of the world and the lukewarm believer were after all in the right. considering his own dislike to the mystic and the priestly view of things, this might almost seem to imply a reconciliation with the sceptics. he observes, indeed, in a letter that there is really little difference between himself and mr. harrison, except in mr. harrison's more enthusiastic view of human nature. but he confesses also that the article has given pleasure to his enemies and pain to his friends. though his opinions, in short, are sceptical, the consequences seem to him so disagreeable that he has no desire to insist upon them. in fact, he wrote little more upon these topics. he was, indeed, afterwards roused to utterance by an ingenious attempt of mr. mivart to show a coincidence between full submission to the authority of the catholic church and an equal acceptance of the authority of reason. in a couple of articles in the 'nineteenth century' (october and january ), he argued with his old vigour that mr. mivart was in fact proposing to put a match in a powder barrel and expect half to explode and the other half to remain unaffected. this was his last encounter upon the old question of authority. in the same year (april and may ) he wrote two articles upon a book by which he was singularly interested, professor max müller's 'science of thought'; he expounds professor max müller's philology in the tone of an ardent disciple, but makes his own application to philosophy. i do not suppose that the teacher would accept all the deductions of his follower. fitzjames, in fact, found in the 'science of thought' a scientific exposition of the nominalism which he had more or less consciously accepted from hobbes or horne tooke. max müller, he says, in a letter, has been knocking out the bottom of all speculative theology and philosophy. thought and language, as he understands his teacher to maintain, are identical. now language is made up of about roots combined in various ways. the words supposed to express more abstract conceptions, some of them highly important in theology, are mere metaphors founded upon previous metaphors, twisted and changed in meaning from century to century. nothing remains but an almost absolute scepticism, for on such terms no certainty can be obtained. in a letter he states that the only problems which we can really solve are those of space and number; that even astronomy involves assumptions to which there are 'unanswerable objections'; that what is loosely called science, darwinism, for example, is 'dubious in the extreme'; that theology and politics are so conjectural as to be practically worthless; and judicial and historical evidence little more than a makeshift. in short, his doctrine is 'scepticism directed more particularly against modern science and philosophy.' i do not take these hasty utterances as expressing a settled state of opinion. i only quote them as vehement expressions of an instinctive tendency. his strong conviction of the fallacies and immoralities of the old theological dogmatism was combined with an equally strong conviction of the necessity of some embodiment of the religious instincts and of the impotence of the scientific dogmatism to supply it. he therefore was led to a peculiar version of the not uncommon device of meeting the sceptic by a more thorough-going scepticism. it is peculiar because he scorned to take the further step of accepting a dogmatic belief on sceptical grounds; but it certainly left him in a position of which silence was, if i may say so, the only obvious expression of his feeling. one curious illustration of his feelings is given by an utterance at the beginning of this period. nobody had less tendency to indulge in versification. when a man has anything to say, he observes to lord lytton on one occasion, as an excuse for not criticising his friend adequately, 'i am always tempted to ask why he cannot say it in plain prose.' i find now that he once wrote some lines on circuit, putting a judgment into rhyme, and that they were read with applause at a dinner before the judges. they have disappeared; but i can quote part of his only other attempt at poetry. tennyson's poem called 'despair' had just appeared in the 'nineteenth century' for november . the hero, it will be remembered, maddened by sermons about hell and by 'know-nothing' literature, throws himself into the sea with his wife and is saved by his preacher. the rescuer only receives curses instead of thanks. fitzjames supplies the preacher's retort.[ ] i give a part; omitting a few lines which, i think, verged too much on the personal:-- so you're minded to curse me, are you, for not having let you be, and for taking the trouble to pull you out when your wife was drowned in the sea? i'm inclined to think you are right--there was not much sense in it; but there was no time to think--the thing was done in a minute. you had not gone very far in; you had fainted where you were found, you're the sort of fellow that likes to drown with his toe on the ground. however, you turn upon me and my creed with all sorts of abuse, as if any preaching of mine could possibly be of use to a man who refused to see what sort of a world he had got to live in and make the best of, whether he liked it or not. i am not sure what you mean; you seem to mean to say that believing in hell you were happy, but that one unfortunate day you found out you knew nothing about it, whereby the troubles of life became at once too heavy to bear for yourself and your wife. that sounds silly; so, perhaps, you may mean that all is wrong all round, my creed and the know-nothing books, and that truth is not to be found-- that's sillier still: for, if so, the know-nothing books are right, and you're a mere spiritless cur who can neither run nor fight, too great a coward to live and too great a coward to die, fit for nothing at all but just to sit down and cry. . . . . . . . . . why, man, we're all in one boat, as everyone can see, bishops, and priests, and deacons, and poor little ranters like me. there's hell in the church of england and hell in the church of rome, and in all other christian churches, abroad as well as at home. the part of my creed you dislike may be too stern for you, many brave men believe it--aye, and enjoy life, too. the know-nothing books may alarm you; but many a better man knows he knows nothing and says so, and lives the best life he can. if there is a future state, face its hopes and terrors gravely; the best path to it must be to bear life's burthens bravely. and even if there be none, why should you not live like a man, enjoying whatever you have as much and as long as you can? in the world in which we are living there's plenty to do and to know; and there's always something to hope for till it's time for us to go. 'despair' is the vilest of words, unfit to be said or thought, whether there is a god and a future state or not. if you really are such a wretch, that you're quite unfit to live, and ask my advice, i'll give you the best that i have to give: drown yourself by all means; i was wrong and you were right. i'll not pull you out any more; but be sure you drown yourself quite. 'despair is the vilest of words.' that expresses fitzjames's whole belief and character. faiths may be shaken and dogmas fade into meaningless jumbles of words: science may be unable to supply any firm ground for conduct. still we can quit ourselves like men. from doubt and darkness he can still draw the practical conclusion, 'be strong and of a good courage.' and, therefore, fitzjames could not be a pessimist in the proper sense; for the true pessimist is one who despairs of the universe. such a man can only preach resignation to inevitable evil, and his best hope is extinction. sir alfred lyall's fine poem describes the hindoo ascetic sitting by the bank of the sacred stream and watching the legions as they pass while cannon roar and bayonets gleam. to him they are disturbing phantoms, and he longs for the time when they will flicker away like the smoke of the guns on the windswept hill. he meanwhile sits 'musing and fasting and hoping to die.' fitzjames is the precise antithesis: his heart was with the trampling legions, and for the ascetic he might feel pity, but certainly neither sympathy nor respect. he goes out of his way more than once to declare that he sees nothing sublime in buddhism. 'nirvana,' he says in a letter, 'always appeared to me to be at bottom a cowardly ideal. for my part i like far better the carlyle or calvinist notion of the world as a mysterious hall of doom, in which one must do one's fated part to the uttermost, acting and hoping for the best and trusting' that somehow or other our admiration of the 'noblest human qualities' will be justified. he had thus an instinctive dislike not only for buddhism, but for the strain of similar sentiment in ascetic versions of christianity. he had a great respect for mohammedanism, and remarks that of all religious ceremonies at which he had been present, those which had most impressed him had been a great mohammedan feast in india and the service in a simple scottish kirk. there, as i interpret him, worshippers seem to be in the immediate presence of the awful and invisible power which rules the universe; and without condescending to blind themselves by delusive symbols and images and incense and priestly magic, stand face to face with the inscrutable mystery. the old puritanism comes out in a new form. the calvinist creed, he says in 'liberty, equality, fraternity,' was the 'grain on which the bravest, hardiest, and most vigorous race of men that ever trod the earth were nourished.' that creed, stripped of its scholastic formulas, was sufficient nourishment for him. he sympathises with it wherever he meets it. he is fond of quoting even a rough blackguard, one azy smith, who, on being summoned to surrender to a policeman, replied by sentencing 'give up' to a fate which may be left to the imagination. fitzjames applied the sentiment to the british empire in india. he was curiously impressed, too, by some verses which he found in an australian newspaper and was afterwards given to quoting. they turned out to be written by adam lindsay gordon (the 'sick stockrider'). i have had my share of pastime, and i've done my share of toil, and life is short--the longest life a span. i care not now to tarry for the corn or for the oil, or for the wine that maketh glad the heart of man; for good undone and time misspent and resolutions vain 'tis somewhat late to trouble--this i know; i would live the same life over if i had to live again and the chances are i go where most men go. i am perfectly well aware of the comments which that statement may suggest. the orthodox may, if they please, draw a moral for their own tastes; and i could draw a moral which is not quite orthodox. i only say that i have tried to describe his final position in the matter, without reserve; and that, in my opinion, whatever else it shows, it reveals both the sincerity and the manliness of a man who dared to look facts in the face. i must speak, though briefly, of his political sympathies in this period, for they were exceedingly deep and strong. his position as a judge gave him the solace of an employment which could divert his mind from annoying reflections. it may be held that it should also have restrained him more completely than it did from taking any part in party controversies. i confess that to be my own opinion. he felt that he ought to keep within limits; but i cannot help thinking that they might have been a little closer than he would quite acknowledge. the old journalistic impulse, however, stirred within him when he saw certain political moves, and he found it impossible quite to keep silence. the first occasion of his writing was upon the starting of the 'st. james's gazette,' under the editorship of his old friend mr. greenwood. both personal and political sympathy induced him, as he put it, 'to take mr. greenwood's shilling,' and i believe that he also enlisted maine. besides the poem which i have quoted, he wrote a good many articles upon legal and literary topics from to , and some which came very close to contemporary politics. the doctrine may be pretty well summed up in the phrase which he quotes more than once--[greek: dêmos psêphizôn megalên archên dialysei.] i need not follow the applications which he indicates both to indian matters and to mr. gladstone's irish policy. he ceased to contribute after the beginning of , but he wrote occasional letters under his own name to the 'times.' the chief of these (i believe that there were others) were reprinted, and attracted some notice. in a question arose in which he had a special interest. in passing the criminal procedure bill he had accepted what was described as a compromise. magistrates were to receive powers of dealing summarily in trifling cases with europeans who had previously had a right to be tried by juries before the high courts. fitzjames accepted the proposal that the power should be entrusted only to magistrates of european birth. the 'ilbert bill,' in , proposed to remove this restriction, and so to confer a right of imprisoning europeans for three months upon native magistrates, of whom there were now a greater number. fitzjames, whose name had been mentioned in the controversy, wrote very earnestly against this proposal.[ ] he asserted the right of englishmen to be tried by magistrates who could understand their ways of thought, and approved the remark that if we were to remove all anomalies from india, our first step should be to remove ourselves. this, however, was, to his mind, only one example of the intrusion of an evil principle. a more serious case occurred upon mr. gladstone's introduction of the first home rule bill in . fitzjames wrote some elaborate letters upon the 'irish question,' when the measure was anticipated, and wrote again upon the bill when the debates upon mr. gladstone's proposals were in progress.[ ] the letters begin by disavowing any 'party politics'--a phrase which he does not consider to exclude an emphatic expression of opinion both upon home rule and upon the land legislation. it is entirely superfluous to summarise arguments which have been repeated till nobody can want to hear more of them. briefly, i may say that fitzjames's teaching might be summarised by saying that ireland ought to be governed like india--justly, and in any case firmly. the demands both for home rule and for land legislation are, according to him, simply corollaries from the general principles of jacobinism and socialism. the empire will be destroyed and the landlords will be plundered. virtually we are dealing with a simple attempt at confiscation supported by an organised system of crime. the argument is put with his usual downright force, and certainly shows no symptoms of any decline of intellectual vigour. he speaks, he says, impelled by the 'shame and horror' which an englishman must feel at our feebleness, and asks whether we are cowards to be kicked with impunity? sometimes he hoped, though his hopes were not sanguine, that a point would yet be reached at which englishmen would be roused and would show their old qualities. but as a rule he turned, as his letters show, from the contemplation of modern politics with simple disgust. he is glad that he is, for the time at least, behind a safe breakwater, but no one can say how much longer it will withstand the advancing deluge. three months' rest after the attack of enabled him to go the summer circuit, and during the latter part of the year he was recovering strength. he became so much better that he was, perhaps, encouraged to neglect desirable precautions, and early in he writes that he has been able to dismiss from his mind a passing fear which had been vaguely present, that he might have to resign. in the following september, mr. w. h. smith requested him to become chairman of a commission to inquire into the ordnance department. what he learnt in that capacity strengthened his conviction as to the essential weakness of our administrative system; although the rumours of corruption, to which, i believe, the commission was owing, were disproved. he made, however, such suggestions as seemed practicable under the circumstances. while the commission lasted he presided three days a week, and sat as judge upon the other three. he felt himself so competent to do his duties as to confirm his belief that he had completely recovered. he did a certain amount of literary work after this. he made one more attempt to produce a second edition of the 'view of the criminal law.' indeed, the title-page gives that name to his performance. once more, however, he found it impossible to refrain from re-writing. the so-called second edition is more properly an abbreviated version of the 'history,' though the reports of trials still keep their place; and, as the whole forms only one moderately thick volume, it represents much less labour than its predecessors. it includes, however, the result of some later inquiries and of his judicial experience. he abandons, for example, an opinion which he had previously maintained in favour of a court of appeal in criminal cases, and is now satisfied with the existing system. in this shape it is virtually a handbook for students, forming an accompaniment to the 'digest' and the 'history.' it was the last of his works upon legal topics. meanwhile, if he wrote little, he was still reading a great variety of books, and was deeply interested in them. his letters are full of references to various authors, old and new. his criticisms have the primary merits of frankness and independence. he says exactly what he feels, not what the critics tell him that he ought to feel. no criticism can be really valuable which does not fulfil those conditions. i must admit, however, that a collection of his remarks would include a good many observations rather startling to believers in the conventional judgments. purely literary qualities impress him very little unless they are associated with some serious purpose. he shows the same sort of independence which enabled him to accept a solitary position in religious and political matters. in private letters, moreover, he does not think it necessary to insist upon the fact, which he would have fully admitted, that the great object of criticism is always the critic himself. a man who says that he can't see, generally proves that he is blind, not that there is no light. if only for this reason, i would not quote phrases which would sound unduly crude or even arrogant when taken as absolute judgments, instead of being, as they often are, confessions of indifference in the form of condemnations. when a great writer really appeals to him, he shows no want of enthusiasm. during the enforced rest in he studied spanish with great zeal; he calls it a 'glorious language,' and had the proverbial reward of being enabled to read 'don quixote' in the original. 'don quixote,' he says, had always attracted him, even in the translations, to a degree for which he cannot quite account. his explanation, however, is apparently adequate, and certainly characteristic. he sees in cervantes a man of noble and really chivalrous nature, who looks kindly upon the extravagance which caricatures his own qualities, but also sees clearly that the highest morality is that which is in conformity with plain reason and common sense. beneath the ridicule of the romances there is the strongest sympathy with all that is really noble. after spanish and cervantes, fitzjames turned to italian and dante. dante, too, roused his enthusiasm, and he observes, quaintly enough, that he means to be as familiar with the 'divina commedia' as he once was with bentham--two authors rarely brought into contact. dante conquered him the more effectually by entering over the ruins of milton. some years before he had pronounced the 'paradise lost' to be 'poor, contradictory, broken-down stuff, so far as the story goes.' he inferred that 'poetry was too slight an affair to grapple with such an awful subject.' he had, however, already read dante in cary's translation, and thereby recognised something far greater. when he came to the original he was profoundly impressed. it is strange, he says, that he has learnt for the first time at the age of sixty what a really great poem could be. poor milton's adaptation of pagan mythology to the hebrew legends, in order to expound puritan theology, results in a series of solecisms, which even the poet could not expect his readers to take seriously. the story, taken for history, certainly breaks down sufficiently to justify a severe remark. but dante's poem, embodying a consistent imagery into which was worked the whole contemporary philosophy and theology, is of absorbing interest even to those who are comparatively indifferent to its more purely literary merits. fitzjames does not make any detailed criticisms, but fittingly expresses his astonishment and admiration upon dante's revelation of a new world of imagination. i think that it is possible to show fitting reverence for dante without deposing milton from his much lower, though still very lofty place. but to one brought up in the old english traditions it was difficult to avoid the rather superfluous contrast. with the help of such studies and frequent visits to old friends, and minor literary tasks, fitzjames could find ample means of filling up any spaces left by his judicial duties. in spite of the disgust with which he regarded the political world, he was happy in his own little world; and his time passed in a peaceful round of satisfactory work. a few troublesome cases, those especially of which i have spoken, gave him occasional worry; but he could adhere to his principle of never fretting unnecessarily. but now was to begin the painful experience which comes to the survivors when the ranks begin to thin. he felt such losses deeply, if with little display of feeling. i find a remark in one of his letters which is, i think, characteristic. he says that his first feeling upon a severe blow had been something like shame at not suffering more. but in a few weeks the sense of loss had become deeper and stronger; and he had to remind himself of the necessity of conquering his depression. i have no need, i hope, to dwell upon the strength of his affections. i can never forget one occasion when his sympathies were deeply stirred; and when his sense of a certain awkwardness in expressing himself, a relic of his old prejudice against 'sentimentalism,' served only to bring out most pathetically the power of the emotions with which he was struggling. two severe losses marked the year . maine died on february . the old friendship had lost none of its warmth; and fitzjames had frequently enjoyed visits to the lodge at trinity hall, where maine, as master, presided over the christmas gatherings. fitzjames commemorated his friend by an article in the 'saturday review.[ ] in a warm eulogy, he praises the 'clearness and sobriety of maine's generalisations as well as their intrinsic probability,' and declares that the books were written 'as if by inspiration.' maine, he says, was equally brilliant as a journalist, as a statesman, and as a thinker. fitzjames speaks, though a little restrained by his usual reserve, of the 'brotherly intimacy of forty years, never interrupted by a passing cloud'; and ends by saying that there are 'persons to whom the world can never have the same aspect again as when maine lived in it.' it had been a great pleasure, i may add, that he had been able to appoint one of his friend's sons, who died soon after the father, to a clerkship of assize on the south wales circuit. in the autumn maine was followed by venables. fitzjames paid an annual visit to the house where venables lived with his brother at llysdinam, on the border of radnorshire. he often mentions in his letters the filial affection with which he regarded venables. in the previous year ( ) he had an opportunity of expressing this more directly than usual. one of venables' friends, mr. pember, had suggested that they might show their affection by presenting a stained glass window to a church which venables had built. fitzjames took up the plan warmly, and with the help of a few other friends carried out the scheme. when it was made known to venables, who of course was much gratified, fitzjames wrote to him a letter (august , ) of which i quote the important part. 'i found your letter on my return from the country this morning. you are quite right in thinking that i did say a great deal less than i meant. i feel shy in putting into quite plain words what i feel about you; but i do not like such things to prevent me from saying just once that i like you, honour you, and respect and admire you more than almost any man i ever knew. for nearer forty than thirty years you have been to me a sort of spiritual and intellectual uncle or elder brother, and my feelings about you have constantly grown and strengthened as my own experience of men and books has ripened and deepened and brought me into closer and closer sympathy with you and more complete conscious agreement with all your opinions and sentiments. i can recall none of your words and writings which i have not cordially approved of, and i shall always feel deeply grateful to mrs. lyster venables (venables' sister-in-law), for whom also i feel the warmest friendship, and to pember for suggesting to me a way of showing my feelings about you, which would never have occurred to a person so abundantly gifted with clumsy shyness as myself. however, i do not believe you will like me the worse for having the greatest possible difficulty in writing to any man such a letter as this.' the three lights of the window, representing moses, aaron, and joshua, were intended as portraits of venables and his two brothers. beneath was the inscription suggested by mr. pember, 'conditori hujus ecclesiæ amicissimi quidam.' fitzjames adds that he had felt 'a passing wish' to add his favourite words, 'be strong and of a good courage,' which, at his suggestion, dean stanley had taken as the text for a funeral sermon upon lord lawrence. i will only add that fitzjames had said in private letters substantially what he said to venables himself. on october , , he heard of his old friend's death, and again wrote an article of warm appreciation in the 'saturday review.' v. james kenneth stephen i have now to give a brief notice of events which had a saddening influence upon the later years. fitzjames, as i have remarked, had seen comparatively little of his elder children in their infancy. as they grew up, however, they had been fully admitted to his intimacy and treated on the footing of trusted and reasonable friends. the two younger daughters had been playthings in their infancy, and grew up in an atmosphere of warm domestic affection. just before venables' death fitzjames made a little tour in the west of ireland with his daughter rosamond, who has preserved a little account of it. i shall only say that it proves that she had a delightful travelling companion; and that his straightforward ways enabled him to be on the friendliest terms with the natives whom he encountered. among the frequent declarations of the happiness of his life, he constantly observes that one main condition was that his children had never given him a moment's uneasiness. two, indeed, had died in infancy; and frances, a very promising girl, had died of rheumatic fever july , . such troubles, however deeply felt, cannot permanently lessen the happiness of a healthy and energetic life. his three sons grew into manhood; they all became barristers, and had all acted at different times as his marshals. i shall say nothing of the survivors; but i must speak briefly of the one who died before his father. james kenneth stephen was born on february , .[ ] his second name commemorates his father's friendship for his godfather, kenneth macaulay. he was a healthy lad, big and strong, and soon showed much intellectual promise. he was at the school of mr. william browning at thorpe mandeville; and in won a foundation scholarship at eton, where he became the pupil of mr. oscar browning, the brother of his former master. he already gave promise of unusual physical strength, and of the good looks which in later years resulted from the singular combination of power and sweetness in his features. the head of his division was h. c. goodhart, afterwards professor of latin at the university of edinburgh.[ ] other boys in the division were george curzon and cecil spring rice. james was surpassed in scholarship by several of his friends, but enjoyed a high reputation for talent among his cleverest contemporaries. the school, it appears, was not quite so much absorbed by the worship of athletics as was sometimes imagined. james, however, rowed for two years in the boats, while his weight and strength made him especially formidable at the peculiar eton game of football 'at the wall.' the collegers, when supported by his prowess, had the rare glory of defeating the oppidans twice in succession. he was ever afterwards fond of dilating with humorous enthusiasm upon the merits of that game, and delighted in getting up an eleven of old etonians to play his successors in the school. he was, however, more remarkable for intellectual achievements. with mr. spring rice and another friend he wrote the 'etonian,' which lasted from may to august ; and several of the little poems which he then wrote were collected afterwards in his 'lapsus calami.'[ ] they are, of course, chiefly in the humorous vein, but they show sufficiently that eton was to him very different from what it had been to his father. he was a thoroughly loyal and even enthusiastic etonian; he satirises a caviller by putting into his mouth the abominable sentiment-- ye bigot spires, ye tory towers, that crown the watery lea, where grateful science still adores the aristocracy. his genuine feeling is given in the lines on 'my old school':-- and if sometimes i've laughed in my rhymes at eton, whose glory i never could jeopardise, yet i'd never a joy that i could not sweeten, or a sorrow i could not exorcise, by the thought of my school and the brood that's bred there, her bright boy faces and keen young life; and the manly stress of the hours that sped there, and the stirring pulse of her daily strife. to the last he cherished the memory of the school, and carefully maintained his connection with it. one odd incident occurred in , when james got up a 'constitutional opposition' to the intrusion of the revivalist preachers moody and sankey. his father wrote him a judicial letter of advice, approving his action so long as it was kept within due limits. he takes occasion to draw the moral that the whole power of such people depends upon the badness of their hearers' consciences. a man who has nothing to hide, who is 'just, benevolent, temperate and brave,' can 'look at things coolly and rate such people at their value.' those 'few words' (i.e. the names of the virtues) 'are the summary of all that is worth having in life. never forget any one of them for one moment, though you need not talk about them any more than you talk about your watch.' james had a marked influence in the college; he was a leading orator in the school debating societies; and his good sayings were as familiarly quoted as those of sydney smith or luttrell in the larger world. mr. cornish, who was his tutor for a time, tells me of the charm of james's talk with his elders, and says that, although he was careless on some matters upon which schoolmasters set a high value, he always showed power and originality. he won an english essay prize in , the history prize in and , the declamation prize in , and was one of the 'select' for the newcastle in . james went to king's with a scholarship in . he gave up classics and took to history. he took a first class (bracketed first in the class) in the historical tripos, but was only in the second class in the law tripos. besides prizes for college essays, he won the 'member's prize' for an essay upon bolingbroke in , and the whewell scholarship for international law in . he succeeded in every competition for which he really exerted himself; although, like his father, he was rather indifferent to the regular course of academical instruction. among his contemporaries, however, he enjoyed the kind of fame which is perhaps of still better augury for future success. king's college in his day, says mr. browning, was only emerging slowly from the effects of its close dependence upon eton. it had been in former days chiefly a little clique of older schoolboys. james helped much to change this, and distinctly raised the intellectual tone of the place. he was a well-known speaker at the union, of which he was president in . he was an 'apostle' too; and in may his father visited him in cambridge, and attended a meeting of the society where james read a paper. although, therefore, he scarcely won such a share of academical honours as might have been expected, james was regarded by his friends as the man of his time who was most definitely marked out for distinction in later years. his friends, indeed, were innumerable; and from all with whom i have communicated there is a unanimous testimony not only to his intellectual promise, but to his influence in promoting a high tone of thought and feeling. his father's letters frequently refer to him. james, he says, is a 'splendid young fellow'; he will surpass his father in due time, and be the fourth distinguished man of his name. james, he says once, using the epithet which in his mouth conveyed the highest praise, is a 'sturdier' fellow in many ways than i was, and writes better than i could at his age. one achievement of the son rather extorted than attracted his father's praise. he appeared in a greek play as ajax, a part for which his massive frame and generally noble appearance fitted him admirably. the father admitted that he had a certain dislike to a man's exhibiting himself personally, but was reconciled by observing that james acted more like a gentleman amusing himself than like a professional performer. how far these anticipations of success would ever have been fulfilled must remain uncertain. james may not have had his father's extraordinary vigour, but he undoubtedly had one quality in which his father was defective. he had a surprising facility in making friendly alliances with all sorts and conditions of men. his opinions partly resembled his father's. in politics he was of the conservative tendency, and he was certainly not of the orthodox persuasion in theology. but he was equally at ease with tories and home rulers, roman catholics and agnostics; and his cheery, cordial manners put him at once on the best understanding with everybody. there was something contagious in the enthusiasm of a young man who seemed so heartily to appreciate the simple joy of living. perhaps his weakness was to be a little too versatile in his sympathies and interests. after taking his degree, james spent some time in germany and france. he was elected to a fellowship at king's college in , and as a candidate wrote dissertations upon 'political science' and 'international law.'[ ] he was elected, it is said, as much upon the strength of his general ability as for any special performance. he was called to the bar in , and naturally employed his spare time upon journalism. he wrote a good deal for mr. greenwood in the 'st. james's gazette,' and had extraordinary facility as a writer. mr. reginald smith tells me how james once wrote a leading article in the train between paddington and maidenhead. many of the little poems which he contributed to periodicals were improvised. he was famous for wit and readiness as an after-dinner speaker; and showed an oratorical power in electioneering speeches which gave the highest hopes of parliamentary success. indeed, from all that i have heard, i think that his powers in this direction made the greatest impression upon his friends, and convinced them that if he could once obtain an opening, he would make a conspicuous mark in public life. at the end of he had an accident, the effects of which were far more serious than appeared at the time. he was staying at felixstowe, and while looking (december , ) at an engine employed in pumping water he received a terrible blow upon the head. he returned to his work before long, but it was noticed that for some time he seemed to have lost his usual ease in composition. he was supposed, however, to have recovered completely from the effects of the blow. in the early part of he astonished his friends by producing a small weekly paper called the 'reflector.' it appeared from january to april , . he received help from many friends, but wrote the chief part of it himself. the articles show the versatility of his interests, and include many thoughtful discussions of politics and politicians, besides excursions into literature. perhaps its most remarkable quality was not favourable to success. it was singularly candid and moderate in tone, and obviously the work of a thoughtful observer. probably the only chance of success for such a periodical would have been to make a scandal by personality or impropriety. to expect a commercial success from a paper which relied only upon being well written was chimerical, unless the author could have afforded to hold out in a financial sense for a much longer period. the expense gave a sufficient reason for discontinuing it; and it is now, i fear, to be inferred that the venture was one of the first signs of a want of intellectual balance. meanwhile, it seemed to indicate that james had literary tastes which would interfere with his devotion to the bar. some months later (june ) his father appointed him to the clerkship of assize on the south wales circuit, which had become vacant by the death of maine's son. he now took comparatively little interest in his profession and spoke of taking more exclusively to literature. clearer symptoms showed themselves before long of the disease caused by the accident. i have no wish to dwell upon that painful topic. it is necessary, however, to say that it gradually became manifest that he was suffering from a terrible disease. he had painful periods of excitement and depression. eccentricities of behaviour caused growing anxiety to his family; and especially to his father, whose own health was beginning to suffer from independent causes. i will only say that exquisitely painful as the position necessarily was to all who loved him, there was something strangely pathetic in his whole behaviour. it happened that i saw him very frequently at the time; and i had the best reasons for remarking that, under all the distressing incidents, the old most lovable nature remained absolutely unaffected. no one could be a more charming companion, not only to his contemporaries but to his elders and to children, for whose amusement he had a special gift. he would reason in the frankest and most good-humoured way about himself and his own affairs, and no excitement prevented him for a moment from being courteous and affectionate. he resolved at last to settle at cambridge in his own college in october ; resigning his clerkship at the same time. at cambridge he was known to everyone, and speedily made himself beloved both in the university and the town. he spoke at the union and gave lectures, which were generally admired. and here, too, in he published two little volumes of verse: 'lapsus calami' and 'quo musa tendis?' four editions of the first were published between april and august.[ ] it started with an address to calverley, most felicitous of minor poets of cambridge; and the most skilful practisers of the art thought that james had inherited a considerable share of his predecessor's gift. i, however, cannot criticise. no one can doubt that the playful verses and the touches of genuine feeling show a very marked literary talent, if not true poetic power. he seems, i may remark, to have had a special affinity for browning, whom he parodied in a way which really implied admiration. he took occasion to make a graceful apology in some verses upon browning's death.[ ] but to me the little volume and its successor speak more of the bright and affectionate nature which it indicates, and the delight, veiled by comic humour, in his friendships and in all the school and college associations endeared by his friends' society. the 'quo musa tendis?' composed chiefly of poems contributed to various papers in the interval, appeared in september . mr. oscar browning quotes some phrases from one of james's letters in november, which dwell with lively anticipation upon the coming term. for a time, in fact, he seemed to be in excellent spirits and enjoying his old pursuits and amusements. but a change in his condition soon occurred. he had to leave cambridge at the end of november; and he died on february , . many bright hopes were buried with him; but those who loved him best may find some solace in the thought that few men have been so surrounded by the affection of their fellows, or have had, in spite of the last sad troubles, so joyous or so blameless a life. james's college friends have put up a brass to his memory in king's college chapel. his family erected a fountain near anaverna. his father added a drinking-cup as his own special gift, and took the first draught from it october , , when about to take his final leave of the place. vi. conclusion what remains to be told of fitzjames's life shall be given as briefly as may be. the death of james had been preceded by the death of lord lytton, november , , which was felt deeply by the survivor. his own health gave fresh cause for anxiety during the latter part of , though happily he had little suffering at any time beyond some incidental inconvenience. on march , , he had an attack of illness during the assizes at exeter resembling that which he had previously had at derby. he was again ordered to rest for three months. sir a. clark allowed him to go on circuit in the summer. lord coleridge was his colleague, and fitzjames enjoyed his society. he afterwards went to anaverna, and, though unable to walk far, took much pleasure in long drives. meanwhile it began to be noticed that his mind was less powerful than it had hitherto been. it was an effort to him to collect his thoughts and conduct a case clearly. a competent observer stated as his general view that fitzjames was at intervals no longer what he had been--a remarkably strong judge--but that he could still discharge his duties in a way which would have caused no unfavourable comments had he been new to the work. remarks, however, began to be made in the press which may have been more or less exaggerated. i need only say that fitzjames himself was quite unconscious of any inability to do his duty, and for some time heard nothing of any comments. in march he was on circuit at exeter again with lord coleridge. it was thought right that certain public remarks should be brought under his notice. he immediately took the obviously right course. he consulted sir andrew clark, who advised resignation. fitzjames did his last work as judge at bristol, march to , and finally resigned on april , , when he took leave of his colleagues at an impressive meeting. the attorney-general, sir r. webster, expressed the feelings of the bar; and the final 'god bless you all,' with which he took leave of the members of his old profession, remains in the memory of his hearers. he was created a baronet in recognition of his services, and received the usual pension. i may here mention that he was elected a corresponding member of the 'institut de france' in ('académie des sciences morales et politiques'). the election, i believe, was due to m. de franqueville, the distinguished french jurist, with whom he had formed a warm friendship in later years. he also received the honorary degree of ll.d. from the university of edinburgh in , and was an honorary member of the american academy of arts and sciences. after his retirement his health fluctuated. he visited froude at salcombe in june, and was able to enjoy sailing. he afterwards went to homburg, and in the autumn was able to walk as well as drive about anaverna. he wrote an article or two for the 'nineteenth century,' and he afterwards amused himself by collecting the articles of which i have already spoken, published in three small volumes (in ) as 'horæ sabbaticæ.' on the whole, however, he was gradually declining. the intellect was becoming eclipsed, and he was less and less able to leave his chair. early in he became finally unable to walk up and down stairs, and in the summer it was decided not to go to anaverna. he was moved to red house park, ipswich, in may, where he remained to the end. it had the advantage of a pleasant garden, which he could enjoy during fine weather. during this period he still preserved his love of books, and was constantly either reading or listening to readers. his friends felt painfully that he was no longer quite with them in mind. yet it was touching to notice how scrupulously he tried, even when the effort had become painful, to receive visitors with all due courtesy, and still more to observe how his face lighted up with a tender smile whenever he received some little attention from those dearest to him. it is needless to say that of such loving care there was no lack. i shall only mention one trifling incident, which concerned me personally. i had been to see him at ipswich. he was chiefly employed with a book, and though he said a few words, i felt doubtful whether he fully recognised my presence. i was just stepping into a carriage on my departure when i became aware that he was following me to the door leaning upon his wife's arm. once more his face was beaming with the old hearty affection, and once more he grasped my hand with the old characteristic vigour, and begged me to give his love to my wife. it was our last greeting. i can say nothing of the intercourse with those still nearer to him. he had no serious suffering. he became weaker and died peacefully at ipswich, march , . he was buried at kensal green in the presence of a few friends, and laid by the side of his father and mother and the four children who had gone before him. one other grave is close by, the grave of one not allied to him by blood, but whom he loved with a brotherly affection that shall never be forgotten by one survivor. i have now told my story, and i leave reflections mainly to my readers. one thing i shall venture to say. in writing these pages i have occasionally felt regret--regret that so much power should have been used so lavishly as to disappoint the hopes of a long life, for i always looked to my brother as to a tower of strength, calculated to outlast such comparative weaklings as myself; and regret, too, that so much power was expended upon comparatively ephemeral objects or upon aims destined to fail of complete fulfilment. such regrets enable me to understand why the work which he did in india made so deep an impression upon his mind. and yet i feel that the regrets are unworthy of him. the cases are rare indeed where a man's abilities have been directed precisely into the right channel from early life. almost all men have to acknowledge that they have spent a great portion of their energy upon tasks which have led to nothing, or led only to experience of failure. a man who has succeeded in giving clear utterance to the thoughts that were in him need care comparatively little whether they have been concentrated in some great book or diffused through a number of miscellaneous articles. fitzjames's various labours came to a focus in his labours upon the criminal law. during his short stay in india he succeeded in actually achieving a great work; and i hope that, if his hopes of achieving similar results in england were disappointed, he will have successors who will find some help from the foundations which he laid. but, as he said of his father, the opportunity of directing your powers vigorously and in a worthy direction is its own reward. if to have taken advantage of such opportunities be the true test of success, whatever opinions may be held of you by others, and to whatever account they may turn your labours, fitzjames may be called eminently successful. it often appears to me, indeed, that a man does good less by his writings or by the mark which he may make upon public affairs than by simply being himself. the impression made upon his contemporaries by a man of strong and noble character is something which cannot be precisely estimated, but which we often feel to be invaluable. the best justification of biography in general is that it may strengthen and diffuse that impression. that, at any rate, is the spirit in which i have written this book. i have sought to show my brother as he was. little as he cared for popularity (and, indeed, he often rather rejected than courted it), i hope that there will not be wanting readers who will be attracted even by an indifference which is never too common. and there is one thing which, as i venture to believe, no one can deny, or deny to be worth considering. whatever may be thought of fitzjames's judgments of men and things, it must be granted that he may be called, in the emphatical and lofty sense of the word, a true man. in the dark and bewildering game of life he played his part with unfaltering courage and magnanimity. he was a man not only in masculine vigour of mind and body, but in the masculine strength of affection, which was animated and directed to work by strenuous moral convictions. if i have failed to show that, i have made a failure indeed; but i hope that i cannot have altogether failed to produce some likeness of a character so strongly marked and so well known to me from my earliest infancy. footnotes: [footnote : _history of criminal law_, i. .] [footnote : _history of criminal law_, i. - .] [footnote : fitzjames had given a slighter account of this curious subject in the _contemporary review_ for february .] [footnote : _history of criminal law_, ii. - .] [footnote : _ibid._ iii. .] [footnote : _history of criminal law_, ii. .] [footnote : _history of criminal law_, i. .] [footnote : fitzjames discussed this question for the last time in the _nineteenth century_ for october . recent changes had, he says, made the law hopelessly inconsistent; and he points out certain difficulties, though generally adhering to the view given above.] [footnote : _history of criminal law_, iii. .] [footnote : _nuncomar and impey_, i. .] [footnote : _nuncomar and impey_, ii. .] [footnote : _ibid._ ii. .] [footnote : _nuncomar and impey_, i. .] [footnote : _history of criminal law_, i. .] [footnote : fitzjames kept a journal for a short time at this period, which gives the facts, also noticed in his letters.] [footnote : _law reports, queen's bench division_, pp. - .] [footnote : _law reports, queen's bench division_, pp. - .] [footnote : the verses were published in the _st. james's gazette_ of dec. , .] [footnote : his letters appeared in the _times_ of march and and june , , and were afterwards collected.] [footnote : his letters appeared on january , , and , and on april and may , .] [footnote : february , ; reprinted in the biographical notice by sir m. e. grant duff, prefixed to the collection of maine's speeches and minutes in .] [footnote : i have used a notice in the _cambridge review_ of february , , and some notes by mr. oscar browning. i have also to thank several of james's friends for communications; especially mr. cornish, now vice-provost of eton college, mr. lowry, now an eton master, mr. reginald j. smith, q.c., and mr. h. f. wilson, of lincoln's inn.] [footnote : i deeply regret to say that professor goodhart died while these pages were going through the press. the schoolboy affection had been maintained to the end; and goodhart was one of james's most intimate and valued friends.] [footnote : mr. lowry mentions some other ephemeral writings, the _salt hill papers_ and the _sugar loaf papers_.] [footnote : the last was published at the end of .] [footnote : a bibliographical account of the changes in these editions is given in the fourth.] [footnote : a 'parodist's apology,' added in the later edition of the _lapsus_.] biblographical note the independent books published by sir j. f. stephen were as follows:-- . _essays by a barrister_ (reprinted from the _saturday review_). london, , smith, elder & co. vol. vo. (anonymous.) pp. . . _defence of the rev. rowland williams, d.d., in the arches court of canterbury_, by james fitzjames stephen, m.a., of the inner temple, barrister-at-law, recorder of newark-on-trent. london, , smith, elder & co. vol. vo. pp. xlviii. . . _a general view of the criminal law of england_, by james fitzjames stephen, m.a., of the inner temple, barrister-at-law, recorder of newark-on-trent. london and cambridge, , macmillan & co. vol. vo. pp. xii. . . _liberty, equality, fraternity_, by james fitzjames stephen, q.c. london, , smith, elder & co. pp. vi. . second edition of the same (with new preface and additional notes), . pp. xlix. . . _a digest of the law of evidence_, by james fitzjames stephen, q.c. london, , macmillan & co. pp. xlii. . reprinted with slight alterations, september , december ; with many alterations, . second edition, . third, . fourth, . . _a digest of the criminal law_ (_crimes and punishments_), by sir james fitzjames stephen, k.c.s.i., q.c. london, , macmillan & co. pp. lxxxii. . second edition, . third, . fourth, . fifth, . . _a digest of the law of criminal procedure in indictable offences_, by sir james fitzjames stephen, k.c.s.i., d.c.l., a judge of the high court of justice, queen's bench division, and herbert stephen, esq., ll.m., of the inner temple, barrister-at-law. london, macmillan &co. . pp. xvi. . . _a history of the criminal law of england_, by sir james fitzjames stephen, k.c.s.i., d.c.l., a judge of the high court of justice, queen's bench division. london, , macmillan & co. vols. vo. pp. xviii. ; ; . . _the story of nuncomar and the impeachment of sir elijah impey_, by sir james fitzjames stephen, k.c.s.i., one of the judges of the high court of justice, queen's bench division. london, , macmillan & co. vols. vo. pp. , . . _a general view of the criminal law of england_, by sir james fitzjames stephen, k.c.s.i., d.c.l., honorary fellow of trinity college, cambridge, a corresponding member of the french institute, a judge of the supreme court, queen's bench division. (second edition.) london, , macmillan & co. pp. xii. . . _horæ sabbaticæ, reprint of articles contributed to the saturday review_, by sir james fitzjames stephen, bart., k.c.s.i. london, , macmillan & co. first, second and third series. pp. , , . the following is a list of the chief contributions to quarterly and monthly periodicals. _cambridge essays_ . oct. . relation of novels to life. . july . characteristics of english criminal law. _national review_ . april . cambridge reform. . nov. . the public schools commission. _edinburgh review_ . july . cavallier. . july . novelists. . jan. . tom brown's schooldays. . april . buckle's 'civilisation.' . oct. . guy livingstone. . april . hodson. . oct. . jurisprudence. _cornhill magazine_ . sept. . luxury. . dec. . criminal law and the detection of crime. . april . the morality of advocacy. . may . dignity. . june and july . the study of history. . aug. . the dissolution of the union. . sept. . keeping up appearances. . nov. . national character. . dec. . competitive examinations. . jan. . liberalism. . feb. . commissions of lunacy. . march . gentlemen. . may . superstition. . june . courts martial. . july . journalism. . sept. . the state trials. . nov. . circumstantial evidence. . jan. . society. . feb. . the punishment of convicts. . april . oaths. . june . spiritualism. . july . commonplaces on england. . july . professional etiquette. . sept. . anti-respectability. . oct. . a letter to a saturday reviewer. . dec. . marriage settlements. . jan. . money and money's worth. . june . the church as a profession. . july . sentimentalism. . dec. . the bars of france and england. . jan. . the law of libel. _fraser's magazine_ (a few earlier articles had appeared in this magazine.) . dec. . women and scepticism. . jan. . japan. . feb. . theodore parker. . april . mr. thackeray. . may . the privy council. . june . capital punishment. . sept. . newman's 'apologia.' . nov. . dr. pusey and the court of appeal. . dec. . kaye's 'indian mutiny.' . feb. . law of the church of england. . march . merivale's 'conversion of the roman empire.' . june and july . english ultramontanism. . nov. . mr. lecky's 'rationalism.' . feb. . capital punishment. . june and july . 'ecce homo.' . nov. . voltaire. . nov. . religious controversy. . jan. . certitude in religious assent. . july . froissart's 'chronicles.' _fortnightly review_ . dec. . codification in india and england. . march . a penal code. . march . blasphemy and seditious libel. _contemporary review_ . dec. and march . parliamentary government. . march . cæsarism and ultramontanism. . may . cæsarism and ultramontanism: a rejoinder. . dec. . necessary truth. . feb. . the law of england as to the expression of religious opinion. _nineteenth century_ . april . mr. gladstone and sir g. c. lewis on authority. . may . morality and religious belief. . sept. . improvement of the law by private enterprise. . dec. . suggestions as to the reform of the criminal law. . jan. . the criminal code ( ). . jan. . the high court of justice. . april . a sketch of the criminal law. . oct. . india; the foundations of government. . june . the unknowable and the unknown. . may . variations in the punishment of crime. . oct. . prisoners as witnesses. . dec. . the suppression of boycotting. . oct. . mr. mivart's 'modern catholicism.' . jan. . a rejoinder to mr. mivart. . april and may . max müller's 'science of thought.' . june . the opium resolution. . july . gambling and the law. index aberdare, lord, aberdeen in - , achill, sir j. f. stephen at, adams, professor, adams, mr. henry, _n_ addison, joseph, afghanistan, lord lytton's policy in, and the subjugation of its tribes, - agency committee, organised by george stephen, albert, prince consort, allen, william, america, the civil war in, american academy of arts and sciences, sir j. f. stephen an honorary member of, anaverna house, , - , - annet, peter, last deist imprisoned for blasphemous libel, 'anti-slavery reporter,' the, 'apostles,' the, at cambridge, - , , aquinas, thomas, , argyll, duke of, arnold, matthew, arnold, rev. dr., , ashton, john, jacobite conspirator, ashton, miss. _see_ venn, rev. richard ashwell, r. _v._, athenæum club, the, auerbach's 'auf der höhe,' austen, jane, austerlitz, austin, charles, austin, john, as a writer compared with sir j. stephen, ; john and mrs. austin's associations with sir j. stephen, , ; influence of austin's works on sir j. f. stephen, , - , , , , ; death, austin, miss lucy. _see_ gordon, lady duff bacon murder trial, - , bain, professor, balmat, auguste, balston, mr., , , balzac, honoré, barkley, mr. d. g., barry, mr. justice, bate, parson. _see_ dudley, sir henry bate bathurst, earl, and sir j. stephen, batten, rev. ellis, master at harrow, his wife (miss caroline venn) and daughter, _n._, , baxter and his writings, sir j. stephen on, , , beaconsfield, lord, , , beattie, dr., beaumont, w. j., bellingham, henry, murderer of mr. perceval, bentham, jeremy, sir j. f. stephen and his writings, , , , - , , , , - , , , , , , , , , , , , , , , ; his efforts on behalf of codification, , bethell sir richard. _see_ westbury, lord blackburn, lord, , blackstone, mr. justice, , , blakesley, canon, blomfield, bishop, blücher, field-marshal, board of trade, sir j. stephen's connection with the, , bolingbroke, james kenneth stephen's essay on, bonney, professor, _n_ bowen, lord justice, , , brahmos sect (india), - bramwell, lord, , brand, lieut., his share in the execution of gordon, bright, john, , , , , brontë, charlotte, brougham, lord, , , , _n_ brown, mary. _see_ stephen, mr. james browning, mr. oscar, , , browning, robert, , browning, mr. william, bryce, mr. james, _n_ buckle, t. h., , buller, mr. charles, , bunyan, john, burke, edmund, , butler, bishop, sir james stephen and his 'analogy,' ; sir j. f. stephen and butler's works, , , butler, mr. montague, _n_ buxton, mr. charles, his connection with the jamaica committee, _n_ buxtn, sir thomas fowell, his efforts to suppress the slave trade, byron, lord, , cairns, lord, calcutta, work and life at, , , calder, mrs., daughter of mr. james stephen, calverley, c. s., 'cambridge essays,' , , , , 'cambridge review,' the, _n_ cambridge university, john venn at, ; connection of sir j. stephen with, ; sir j. f stephen at, - ; the 'apostles,' ; j. k. stephen at, - , - cameron, c. h., his share in codifying indian penal laws, campbell's poems, , campbell, mr. j. dykes, _n_ campbell, lord, chief justice, , , campbell, sir george, canning, lord, capital punishment, , carlyle, jane welsh, carlyle, thomas, , , ; his political and philosophic writings, , , , , , , , , , ; friendship with sir j. f. stephen, - , , , , , , , , caroline, queen, cashmire gate, the, castlereagh, lord, cavagnari, major, , cavaignac and the french revolution of , cavallier, , cayley, professor, cervantes, chamberlain, mr. joseph, , charlemagne, charles ii., criminal law in his day charlotte, princess, chenery, thomas, editor of the 'times,' chillingworth, william, chitty, mr. justice, 'christian observer,' - , christie, w. d., _n_ church missionary society, , 'clapham sect,' the, _n_, - , - , , , clark, sir andrew, , , , clarke, mrs. _see_ stephen, mr. james cleasby, baron, , clifford, professor w. k., clifton _v._ ridsdale, club 'the,' cobden, richard, , cockburn, sir alexander, lord chief justice, his charge regarding the alleged murder of gordon, ; and the homicide bill, ; on the criminal code bill, cockerell, mr., _n_, codification, in india, , , , , , ; in england, , , , , , - , - , , , , colenso, bishop, coleridge, mr. arthur, , , , , - coleridge, herbert, , coleridge, lord, chief justice, , , , , , , , , , , , , coleridge, samuel taylor, , , , , , colonial department and office, , - colquhoun's 'wilberforce' cited, _n_ comte, auguste, congreve, mr., 'contemporary review,' the, _n_, , _n_, contracts, sir j. f. stephen and the law of, - , , conybeare and philips, their work on geology, cited, _n_ cook, john douglas, , , , copyright commission, the, 'cornhill magazine,' the, _n_, , , , - , _n_, , , , , cornish, mr., vice-provost of eton, _n_, cosmopolitan club, the, , courts-martial, sir j. f. stephen on, cowie, mr., advocate-general, cowper, the poet, , cremation, criminal law, ; 'general view' of, - , , , , , ; 'digest' of, - , , , ; the criminal code, , , , ; 'history' of, - , , ; court of criminal appeal, croker, john wilson, cumming, dr., and the 'saturday review,' cunningham, sir henry stewart, , , , , , _n_, , _n_, , , , cunningham, rev. j. w., - curzon, hon. george, cust, mr. robert, dalgairns, father, dalhousie, lord, dante, , darwinism, , , davies, rev. j. llewelyn, , , , , delhi, , ; the great durbar at ( ), de maistre, , denison, archdeacon, derby, earl of (edward geoffrey), , , derby, earl of (edward henry), descartes, de vere, aubrey, dicey, professor albert venn, mr. edward, mr. frank, and mr. henry, dicey, mr. thomas edward, - , , , dickens, charles, , , , , , dickens, mr., q.c., dove, trial of, dowden, professor, _n_ dromquina, ireland, , , , dudley, sir henry bate ('parson' bate), duff, james grant, duff, sir mountstuart elphinstone grant, and lady, , , , , , , , , , _n_ dundee, candidature for, - , 'ecce homo,' review of, , ecclesiastical cases, - edinburgh, duke of (prince alfred), 'edinburgh review,' the, , , , , , , _n_, , , , education commission ( ), - , , egerton, lady, , , , , , egerton, sir robert, eldon, earl of, elliot, gilbert (earl minto), elliott, miss charlotte, , elliott, e. b., elliott, rev. henry venn, , ellis, mr. leslie, , erie, lord chief justice, 'essays and reviews,' , , 'essays by a barrister,' _n_, _n_, ; character of its contents, - , estlin, john prior, eton, - , - 'etonian,' the, evidence, digest of the law of, evidence act (india) and bill (england), , , , , , extradition commission, the, eyre, governor, - , fane, julian, , farish, professor william, _n_, , fawcett, professor henry, field, lord, , , , fielding, sir john, flowers, mr. f., forbes, miss mary. _see_ stephen, mr. william forster, the rt. hon. w. e., 'fortnightly review,' the, _n_, , francis, sir philip, francis, miss elizabeth, franqueville, m. de, 'fraser's magazine,' , , , , , , , , , , freeman, professor e. a., , freshfield, messrs., froude, james anthony, _n_, , , , , , , , , , , fuller, mr., galway, ireland, garratt, rev. samuel, _n_ garratt, mr. w. a., , , george iii., criminal law in his day, gibbet law of halifax, gibbon, edward, , , , gibbs, mr. frederick waymouth, , , , , , giffard, mr. hardinge (afterwards lord halsbury), gisborne, thomas, , gladstone, mr., his work on church and state, ; irish church act and irish university bill, , ; connection with the metaphysical society, , , ; recent irish and indian policies, , glenelg, lord, goodhart, professor, gordon, adam lindsay, gordon, lady duff (née austin), gordon, lord george, gordon, hanged for his share in the jamaica insurrection, - gorham case, the, gower, lord f. l., grace, miss. _see_ stephen, rev. william graham, sir james, and the slave trade, _n_ gray, the poet, ; his 'elegy,' great grimsby riots, green, t. h., greenwood, mr. frederick, editor of the 'pall mall gazette 'and the 'st. james's gazette,' - , , , , greg, william rathbone, , , greville, charles, the diarist, grey, earl. _see_ howick, lord guest, rev. b., - gurney, mr. russell, recorder of london, , , , , , , , , , , haileybury, sir j. stephen at, hallam, the historian, , hallam, henry fitzmaurice, , hamilton, the logician, anecdote concerning, hamilton, sir william, introduces german philosophy into england, ; mill's examination of his philosophy, , hampden, bishop, hannen, mr. (afterwards lord), counsel for general nelson and lieut. brand, harcourt, sir william ( historicus'), contemporary of sir j. f. stephen at cambridge, , , ; connection with the 'saturday review,' , , , , harrison, mr. frederic, his controversies with sir j. f. stephen and connection with the metaphysical society, , , , , , harwich, candidature for, , hastings, warren, sir j. f. stephen's interest in the study of his works and impeachment, , , , , ; character of lord macaulay's article on, - hazlitt, as an essayist, helps, sir arthur, an 'apostle' at cambridge, ; as an essayist, henry, sir thomas, hey, rev. john, hick, mr., m.p., higgins, matthew james ('jacob omnium'), his connection with the 'pall mall gazette,' hildebrand, sir j. stephen on, hill, rowland, and the post office, himalayas, the, sir j. f. stephen's description of, hindoo laws, remarriage of widows legalised, ; alterations in the oaths and wills enactments, . _see also_ india 'historicus.' _see_ harcourt, sir william 'history 'of the criminal law. _see_ criminal law hobbes, thomas, the study of his philosophy by sir j. f. stephen and its influence on his character, , , , , , , , , hobhouse, lord, , hodson, archdeacon, ; indian reminiscences of hodson of hodson's horse, holker, sir john, holland, canon, holland house, society gatherings at, home rule, sir j. f. stephen's objections to, - homer, study of, homicide bill, , , , hooghly, its aspect during state ceremonial after lord mayo's murder, , hooker, , 'horæ sabbaticæ,' , , , hort, professor, , howick, lord (afterwards earl grey), and the slave trade, hughes, tom (judge), his 'tom brown's school days,' ; mission work in the east end, hughes _v._ edwards, hume, david, hunter, sir w. w., his 'life of the earl of mayo,' _n_, , - , hutton, mr. r. h., , huxley, professor, , hyde park riots, the, ilbert, sir c. p., on sir j. f. stephen's legislative work in india, _n_, , , ; advocates the collection of antiquarian laws, ; his 'indian' bill proposals criticised by sir j. f. stephen, impey, sir elijah, sir j. f. stephen's work on his 'trial of nuncomar,' , , ; injustice of lord macaulay's treatment of impey, india, sir j. f. stephen on james grant duff's administration of, ; on british rule in, , ; legal codes in, ; sir j. f. stephen's interest in, ; his appointment as member of council, ; account of his duties and of the indian civil servants, , ; personal experiences there, - ; the india company and the passage of the penal code, - ; constitution of the legislative council, ; the executive, ; the legislative department and its functions, ; the committee, , , ; process of preparing legislative measures, , ; the indian and english systems compared, , ; varied character of its regulations, laws, and executive orders, and consequent irregularities, - ; british administration of the punjab and the introduction of codes, - ; the difficulties of our position in india, ; enumeration of legislative reforms in india, - ; criticisms and appreciations of sir j. f. stephen's work in india, - ; summary of sir j. f. stephen's views on the principles of indian legislation, - ; his minute on the administration of justice in india, - ; the murder of lord mayo in, - ; riot and excesses of kookas sect, , ; roman analogy of british rule, ; sir j. f. stephen's last days in, ; educational value of india to him, ; his codification of the law in, ; evidence act, ; legislation in, compared with england, ; contemplated work on, ; his acts relating to consolidation, , , , ; correspondence with lord lytton concerning indian affairs, - , ; controversy with john bright, lord lawrence, and other statesmen on indian policy, - ; proclamation of queen victoria as empress of, ; proposed moral text-book for india, ; sir j. f. stephen's study of parliamentary papers concerning, ; his views on the 'ilbert bill,' , ; work in, . _see also_ punjab indian law commission, its share in indian law reform, , , , , , , indian mutiny, the, sir j. f. stephen's article on, ; and legislation in india, inns of court, sir j. f. stephen professor of common law at, insanity and crime, , institut de france, sir j. f. stephen elected a corresponding member of, international law, austinian theory regarding, ipswich, sir j. f. stephen's residence and death at, ireland, sir j. f. stephen in, , , - , , - . _see also_ home rule irish church, the, , irish university bill, the, defeat of, italian, study of, , , , jackson, rev. william, ; letter on james stephen, jacob, general, his 'progress of being,' sir j. f. stephen's review of, jacob omnium. _see_ higgins, matthew james jamaica, slave insurrection in ( ), ; revolt in ( ), and its suppression, - james, mr. edward, q.c., james, sir henry, appointed solicitor-general, jeffrey, lord, his conduct of the 'edinburgh review,' jeffreys, judge, , jelf, dr., the theologian, jenkins, mr. edward, author of 'ginx's baby,' and the dundee election, - , jenkins _v._ cook, jerrold, douglas, jessel, sir george, solicitor-general, jeune, sir francis, , johnson, dr., and sir j. f. stephen: a comparison, , ; character of his essays, jowett, rev. h., tutor of sir j. stephen, ; and of the rev. j. w. cunningham, jowett, professor joseph, an evangelical, jowett, professor william, his writings on theology, , judicature act ( ), the, jungfrau, ascent of the, junius' letters, , jurisprudence, sir j. f. stephen on, , jury, the history of trial by, justinian's 'institutes,' kane, e. k., kant, , kelly, chief baron, , kelvin, lord, kenilworth castle, kenmare river, the, ireland, , kensington, the stephens at, , , kent, chancellor, on serjeant stephen's first book, killmakalogue harbour, king, miss catherine. _see_ venn, rev. john king's college, london, , kingsley, charles, kitchin, dean, , knight, rev. william, his work on the rev. henry venn, d.d., knowles, mr. james, , kooka sect, their religious fanaticisms and barbarities, lahore, lake, dean, education commissioner ( ), lamb, charles, as an essayist, lansdowne, lord, his house in ireland, 'lapsus calami,' james kenneth stephen's, lardner, his work on 'gospel history' las casas, and his account of napoleon at st. helena, , law, william, effect of his 'serious call' on rev. richard venn, law, definition of, , ; considered in relation to mill's theory, - ; its connection with morality, - 'law magazine,' the, 'law quarterly review,' sir c. p. ilbert's article in, on sir j. f. stephen, _n_ lawrence, henry, assists in the administration of the punjab, lawrence, john (lord), his legislative reforms in india and administration of the punjab, , , ; journalistic encounters and friendship with sir j. f. stephen, , ; text of dean stanley's sermon on, lecky, w. e. h., his 'rationalism,' lewis, sir george cornewall, ; his 'authority 'discussed, 'liberty, equality, fraternity,' , ; account of its inception, character of the work, - , , ; effect on the dundee election, 'liberty of the savoy,' lightfoot, dr., , lilburne, john, lincoln, general, lipski, the murderer, , literary society, the, liveing, dr. robert, liverpool, invitation to contest, locke, , , 'london review,' the, louis philippe, lowe, mr. robert (lord sherbrooke), on public-school life at winchester, ; and the revised educational code, ; and the evidence bill, lowry, mr., of eton, _n_, _n_ loyola, ignatius, sir j. stephen on, , lush, mr. justice, his trial of the tichborne case, ; criminal law commissioner, lushington, mr. franklin, - , , , luther, sir j. stephen on, luttrell, lyall, sir alfred, his works and character, , , lyndhurst, lord, and serjeant stephen, lytton, earl of, governor-general of india, his correspondence and friendship with sir j. f. stephen, , , , , , , , , , ; characteristics of, - ; confidential nature of their correspondence, ; sir j. f. stephen on lord lytton's indian policy, - , ; ambassador at paris, ; his death, macaulay, kenneth, leader of the midland circuit, , , , ; godfather of james kenneth stephen, macaulay, thomas babington (lord), as a writer compared with sir j. stephen, , ; on the meetings at holland house, ; his patriotism, ; his literary style, , , ; sir j. f. stephen's obituary notice of, ; on church and state, ; impression of his indian essays on sir j. f. stephen, ; advised sir j. stephen to accept indian appointment, ; his share in preparing the indian code, , ; personal claims of impey on macaulay, ; character of his essay on hastings, ; macaulay's imaginative process contrasted with sir j. f. stephen's judicial method, - ; examples of the former's audacious rhetoric, , ; effect of sir j. f. stephen's regard for macaulay on his criticisms, , macaulay, zachary, his share in the suppression of slavery, , , ; as a philanthropist, mackintosh, 'macmillan's magazine,' madras, its administrative regulations anterior to , ; the famine in, maine, sir henry sumner, his career at cambridge and his friendship with sir j. f. stephen, , , , , , , , , ; his journalistic work on the 'morning chronicle,' 'cambridge essays,' 'saturday review,' and 'st. james's gazette,' - , ; stephen's review and criticisms of his 'ancient law,' , , ; his work as legal member of the council of india, , , , , , - , ; revises stephen's draft scheme for consolidating the acts relating to india, ; stephen's and maine's interest in indian matters, , , ; his death, and biographical notice by stephen, , ; the latter appoints maine's son clerk of assize, , maitland, professor, on sir j. f. stephen's writings, , , manchester school, the, , , manning, cardinal, , , , , , mansel, dean, introduces german philosophy into england, ; sir j. f. stephen on his 'metaphysics,' mansel, mr., assists lord lawrence in the administration of the punjab, mansfield, lord, his relations with james stephen, - 'maria,' , , marriage, mill's theories concerning, , martial law, sir j. f. stephen on, martineau, dr., his connection with the metaphysical society, martyn, henry, matthews, mr. henry, home secretary, and the lipski trial, , maule, mr., member of the jamaica commission, maurice, professor f. d., of king's college, london, his influence on sir j. f. stephen, , , , ; formerly an 'apostle' at cambridge, ; his influence at cambridge, ; his style of preaching, , mauritius, the, sir george stephen and the slave trade in, max müller, professor, his 'science of thought' reviewed by sir j. f. stephen, maxwell, clerk, an 'apostle' at cambridge, ; anecdote concerning, maybrick, mrs., her trial, mayo, earl of, sir j. f. stephen's contribution to his life, _n_, , - , ; his hunting parties in india, ; sir j. f. stephen on his character and work in india ; account of his murder, ; and the state ceremonial in calcutta, - ; incident connected with the trial of his murderer, , ; legislative work in india, melbourne, lord, on sir j. stephen at the colonial office, merivale, charles, an 'apostle' at cambridge, merivale, mr. herman, and the consolidation of acts relating to india, metaphysical society, the, its inception, ; its first members, ; sir j. f. stephen's connection with and contributions to, - metaphysics, sir j. f. stephen and, , miall, edward, education commissioner ( ), middleton, conyers, his quarrel with the rev. richard venn, , mill, james, his influence at cambridge, ; his advocacy of codification, , ; his share in the suppression of slavery, ; as a political economist, ; allusion to, ; the effect of his writings on macaulay, ; mill on criminal law, mill, john stuart, sir james stephen's acquaintance with, , ; on hell and god, ; sir j. f. stephen on his 'political economy,' ; influence at cambridge, , ; and on sir j. f. stephen, , , , , , , , ; chairman of the jamaica committee, - ; estrangement from sir j. f. stephen, , ; his theories concerning liberty, , - ; his controversy with w. g. ward, ; his indifference to evolution theories, millar, mr. a. h., his account of the dundee election, _n_ milner, miss sibella. _see_ stephen, mr. james milner, mr., of poole, his kindness to james stephen, milner, mr. george, , milner, mr. isaac, evangelical leader at cambridge, , , milner, mr. joseph, educates rev. john venn, milner, mr. william, merchant, his bankruptcy, ; marries miss elizabeth stephen, _n_ milnes, monckton, an 'apostle' at cambridge, , milton, john, , , missionaries in india, mister, hanged for attempted murder mivart, mr. st. george, mohammedanism, moltke, field-marshal von, monteagle, lord, on sir j. stephen as a talker, moody and sankey, james kenneth stephen's 'constitutional' opposition to, more, sir thomas, morison, miss mary. _see_ stephen, serjeant morison, mr. william maxwell, _n_ morley, mr. john, connection with the 'saturday review,' ; invites sir f. j. stephen to write 'carlyle' for his series, ; replies to stephen's criticisms of mill, , 'morning chronicle,' the, - 'morning herald,' the, 'morning post,' the, master james stephen's connection with, morton, mr., village postmaster at ravensdale, mourne mountains, mozley, rev. t., _n_ munro, professor, murder, curious punishment for, anterior to , napier, macvey, his 'correspondence' cited, _n_, napoleon, sir f. j. stephen on his captivity, , 'national review,' the, , navigation act, its provisions enforced by nelson, nazim, nawab, nelson, general, his share in the execution of gordon, - nelson, horatio, captain of the 'boreas,' enforces navigation act, nettlefold and chamberlain arbitration case, , newark, sir j. f. stephen, recorder of, , newcastle, duke of, his interest in j. d. cook, , ; chairman of royal commission on education ( ), newman, cardinal, review of his 'apologia' by sir j. f. stephen, , , ; their acquaintance and discussions on theology, - , ; newman's ascetic and monastic views, , ; his 'grammar of assent,' newman's rooms, oxford, newton, john, 'nineteenth century,' the, its account of the metaphysical society, ; contributions to, , , , , _n_, , , , north, christopher, wrestling bout with ritson, 'northampton mercury,' the, northbrook, lord, north-western provinces (india), executive orders for, , novels, , , , , nuccoll, mrs., daughter of mr. james stephen, 'nuncomar and impey,' sir j. f. stephen's book on, - , o'connell, daniel, the agitator, , old bailey, professional experiences at the, , orange, prince of, ordnance department commission, sir j. f. stephen chairman of, , oudh, executive orders applicable to, oxford, newman's meetings at, 'oxford essays,' oxford movement, sir j. stephen and the, , oxford university confers the d.c.l. degree on sir j. f. stephen, paine, thos., his 'age of reason,' sir j. f. stephen's impressions concerning, ; allusion to, ; and the 'rights of man,' paley, william, his utilitarian tendencies, ; sir j. f. stephen on his writings and teachings, , , , , , 'pall mall gazette,' the, sir j. f. stephen's connection with, and other particulars concerning, , _n_, - , , , , , , , , palmer, trial of, , palmerston, lord, article on his death, - ; effect of his death on parties, pantheism, newman and, parke, baron, parker, theodore, , parknasilla, residence at, parliamentary government, sir j. f. stephen on, , , pascal, pattison, mark, on the meetings in newman's rooms at oxford, ; his connection with the 'saturday review,' ; his share in the education commission ( ), ; his connection with the metaphysical society, peacock, sir barnes, chief justice of calcutta, ; his share in indian law reforms, , pearson, charles henry, peel, sir robert, connection of his followers with the 'morning chronicle,' ; his reform of the criminal law, pember, mr., , perceval, mr. spencer, his orders in council, ; murdered, perry, sir erskine, and consolidation of acts relating to india, 'peter simple,' 'pilgrim's progress,' the, pitt, wilberforce's antagonism toward, place, francis, and zachary macaulay, plato, , , politics, sir j. f. stephen's views on and interest in, , - , , , , - , , , - pollock, chief baron, description of, ; appoints stephen revising barrister, ; arbitrator in the nettlefold and chamberlain case, pollock, sir frederick, on sir j. f. stephen's 'history of the criminal law,' pontius pilate, poole, james stephen's enterprise at, pope, , popish plots, sir j. f. stephen's account of, positivism, sir. j. f. stephen's views on, , - , , price and the 'rights of man,' price, william, the 'druid,' prize appeal court of the privy council, the, james stephen's connection with, protestantism, newman on, ; and rationalism, , 'public advertiser,' the, james stephen's contributions to, public schools commission, the, punishment considered in its relation to revenge, , ; and to mill's theory, , punjab, executive orders applicable to the, ; administration of the province by lord lawrence, , ; its 'civil code,' ; regulations relating to the punjab consolidated, ; land revenue act, - , ; criminal tribes act and measure repressing kidnapping of children, , , purbeck island, james stephen shipwrecked on, purgatory, the doctrine of, puritanism, sir j. f. stephen and, , , 'quo musa tendis,' james kenneth stephen's, raleigh, allusion to, rapin's history, master james stephen's early acquaintance with, rationalism, sir j. stephen and, ; its exponents combine with protestants against sacerdotalism, ; sir j. f. stephen and, ravenscroft, miss. _see_ stephen, sir george reade, charles, sir j. f. stephen on his 'never too late to mend,' 'reasoner,' the, attacked by the 'saturday review,' 'record,' the, criticised by the 'saturday review,' 'reflector,' the, james kenneth stephen's paper, , reform bill of , sir j. f. stephen on the, , renan, his writings, , ricardo as a political economist, , , richardson, mr. joseph, of the 'morning post,' ritson, the wrestler, roberts's 'hannah more,' _n_ robespierre, sir j. f. stephen's reflections on, robinson, crabb, on james stephen, 'robinson crusoe,' , , rogers, rev. william, on the education commission ( ), - roman catholicism, sir george stephen and, ; sir j. stephen and, - ; sir j. f. stephen and, , , - , - , , , roman rule in syria, an analogy, ; in palestine, romilly, lord, and sir j. stephen, ; his efforts to reform the criminal law, ; retires from mastership of the rolls, 'rotuli parliamentorum,' roy, ram mohun, founder of the brahmos sect, rugby school, visit to, ; contrasted with eton, rundle, rev. thomas, and the rev. richard venn, ruskin, mr. john, an expositor of carlyle's socialistic theories, ; his connection with the metaphysical society, russell, lord arthur, 'russell on crimes,' russia, bentham and codification in, ; and the eastern question, , ryan, sir edward, his position in the privy council, _n_ st. christopher's, west indies, members of the stephen family at, , , , , 'st. james's gazette,' the, particulars concerning, _n_, , sainte-beuve, the writings of, , salisbury, sir j. f. stephen at, salisbury, marquis of, , , , sandars, thomas collett, , , 'sandford and merton,' 'saturday review,' the, sir j. f. stephen's connection with, , , , - , , , , ; its first editor, , , ; some of its noted contributors, - ; characteristics of the journal, , , ; its arraignment of popular idols and contemporary journals, - , - ; secession from, ; character of its 'middles,' savigny, john austin and, schiller, scott, dr., at cambridge, scott, sir walter, ; his works quoted, , , ; literary character of his 'history,' scroggs, sir william, , seditious libels, , seeley, professor, and his 'ecce homo,' , selborne, lord, ; his connection with the metaphysical society, selden society, the, its objects, senior, nassau, friendship with sir j. stephen, ; education commissioner ( ), - sermon on the mount, the, , , _n_ shakespeare's 'henry the fifth,' sharpe, granville, sir j. stephen's acquaintance with, shelley, views on his essays, sherbrooke, lord. _see_ lowe, mr. robert sheridan, richard brinsley, , sheridan, mr., innkeeper at achill, sidgwick, professor, on sir j. f. stephen and the 'apostles,' ; his connection with the metaphysical society, , simeon, rev. charles, founder of the 'sims,' , simla, sir j. f. stephen at, , , , , singh, ram, of the kookas sect, , , slave trade, the stephen family and the , - , , , , smart, christopher, the crazy poet, , , smith, adam, his political economy, smith, mr. bullen, his share in the indian contract act, smith, mr. george, sir j. f. stephen's connection with, , , , smith, mr. goldwin, connection with the 'saturday review,' ; education commissioner ( ), smith, henry john stephen (mathematician), , ; memoir, n; estimate of his character and powers, ; stephen's account of their relations, smith, mr. reginald j., _n_, smith, sydney, and the 'clapham sect,' _n_; as a clergyman, ; and the church of england, smith, mr. w. h., appoints sir. j. f. stephen chairman of ordnance commission, , smith, elder & co., messrs., publishers of the 'cornhill magazine,' smyth, professor william, death of, sneem harbour, snow, captain parker, arctic explorer, , , 'social science association,' the, sir j. f. stephen's address to, _n_ socialism, sir j. f. stephen and, , , socinianism, newman and, sortaine, mr., anti-papist, southey, robert, his literary labours, spain, bentham and codification in, spanish, sir j. f. stephen's study of the language, , spanish inquisition, , , spedding, james, friendship with sir j. stephen, ; and j. f. stephen, ; an 'apostle' at cambridge, , spencer, mr. herbert, , , spiritual courts, history of the, spring rice, mr. cecil, and the 'etonian,' stafford election petition, stanley, dean, ; his sermon on lord lawrence, star chamber, the, state trials, , , , staubbach, the, steele, sir richard, his quarrel with addison, stent, mr., mrs., miss anne and thomas, , , . _see also_ stephen, mr. james stephen, mr. alexander, stephen, sir alexander condie, k.c.m.g., _n_ stephen, sir alfred, , ; his pamphlets, _n_; descendants, stephen, miss anne mary. _see_ dicey, mr. thomas stephen, miss caroline emelia, _n_, stephen, miss elizabeth. _see_ milner, mr. william stephen, miss frances wilberforce, , stephen, sir george, 'life' of his father james stephen, _n_; characteristics of, ; his career and writings, , , ; marries miss ravenscroft, _n_; his children, _n_; his death, stephen, miss hannah. _see_ farish, professor william stephen, henry john, s. l., his life, writings, and family, , , , stephen sir herbert, 'note' on sir j. f. stephen's life in ireland, - stephen, mr. herbert venn, his birth, , ; his army experiences, ; discussions and relations with j. f. stephen, ; tour to constantinople and death at dresden, stephen, mr. james, of ardenbraught, _n_ stephen, mr. james, tenant farmer, and family, stephen, mr. james, writer on imprisonment for debt, ; early history, ; adventures on purbeck island, , ; marriage to miss sibella milner, , , ; commercial failure, ; manager of sir john webbe's estate, ; imprisoned in king's bench prison for debt, ; efforts to prove illegality of imprisonment, ; consequent popularity among fellow-prisoners, , ; arguments and writings on the subject, , ; removed to the 'new jail,' , ; 'blarney' thompson's portrait of, ; release of stephen from prison, ; connection with the legal profession, - ; his family, death of his wife, ; his death, stephen, mr. james, master in chancery, at king's bench prison, , ; education and early training, , ; his relations with the stents, - ; chequered career, ; studies law at aberdeen, ; legal business in london, ; his love affairs, - ; life as a journalist, ; called to the bar, ; practice at st. christopher's, ; marriage to miss stent, ; character, ; speech against slavery, ; attends trial of slaves for murder at barbadoes, ; prosecutes planter for ill-treating negro children, ; flourishing law practice at st. christopher's, , ; returns to england, ; employment in the cockpit, ; joins wilberforce in his anti-slavery crusade, ; death of his first wife, ; second marriage, to mrs. clarke, ; her eccentricities, ; relations with wilberforce, ; his pamphlet on the slave trade, ; his 'war in disguise,' ; the policy suggested therein adopted by the government, ; enters parliament, , ; brougham's criticism of stephen, ; speech of stephen in opposition to benchers' petition, , ; parliamentary encounter with whitbread, ; resigns his seat as a protest against slackness of government in suppressing the slave trade, , ; master in chancery, , ; death of his second wife, ; town and country residences, , ; his works on the slave trade, , , ; example of his prowess, ; his faith in the virtue of port wine, ; death and burial, , ; relatives, ; authorities for his life, ; his children, - stephen, his honour judge, son of serjeant stephen, _n_ stephen, sir james, father of sir james fitzjames, ; birth and early training, ; the 'clapham sect,' _n_; college life, ; official appointments, ; character, ; marriage to miss venn, , ; influence of the venns over, , ; visit to the continent, ; birth of his eldest son, ; illness, ; counsel to the colonial office and board of trade, ; adopts f. w. gibbs, ; sir f. j. stephen's life of his father, ; sir james's 'essays in ecclesiastical biography,' , ; relations with sir henry taylor, ; duties and influence at the colonial office, - ; gluttony for work, , ; nicknames, ; interest in the suppression of slavery, , ; appointed assistant under-secretary, ; resigns board of trade, ; share in the establishment of responsible government in canada, ; sensitive and shy in disposition, , ; tenacity of opinion, ; perfection and richness of his conversational diction, - ; character of his essays and letters, , ; religious creed and sympathies, - ; distinguished acquaintances and friends, , ; distaste for general society and feasts, , ; his ascetic temperament and systematic abstemiousness, ; delight in family meetings, ; evangelical character of his household, - ; as a father, , ; physical and personal characteristics, ; family, ; talks with fitzjames, , , , , , ; concern for fitzjames's health, - ; places his sons at eton, , ; anxiety concerning his son herbert, ; letter to fitzjames, ; effect of herbert's death on, ; illness and resignation of his post, ; made a privy councillor and created k.c.b., ; regius professor of modern history at cambridge, ; delivery, reception and publication of his lectures, , ; accepts professorship at haileybury, ; desires a clerical career for fitzjames, , ; and fitzjames's views on theology, , , ; sir james satirised in 'little dorrit,' ; his criticisms of fitzjames's literary work, , ; on the slavery of a journalistic career, , ; suggestions to fitzjames for a legal history, , ; last days and death, , ; inscription on his tombstone, stephen, lady, birth, _n_; marriage, ; personal characteristics, , ; love of the poets, ; devotion to her husband and children, ; serenity of disposition, , ; religious convictions, ; her reminiscences of switzerland, ; her diary, , ; sir f. j. stephen's letters to, from india, , - ; last years and death, , stephen, sir james fitzjames--_family history_: james stephen (great-grandfather), - ; master james stephen (grandfather) and his children, - ; the venns, - ; sir james stephen (father), - stephen, sir james fitzjames--_early life_: birth, _n_, ; material for his biography, , ; examples of a retentive memory, , ; infantile greeting to wilberforce, ; acquaintance with the poets and other standard works, , ; precocious views on religion and moral conduct, - ; love for his father, their talks on theology and other subjects, , , , , , ; home life and behaviour, , ; school life at brighton and the effect of an excess of evangelical theology received there, - , ; visits rugby, impression of dr. arnold, ; at eton, account of his public school life, - ; argument with herbert coleridge on the subject of confirmation, ; contempt for sentimental writers, ; discussions with his brother herbert on ethics, , ; progress at eton, his contemporaries and amusements, , ; visit to the beamonts, ; leaves eton, ; enters king's college, london, ; enters its debating society, ; progress of his studies, ; his opinion of henry venn, ; and dr. jelf, ; relations with f. d. maurice, ; death of his brother herbert, ; analysis of his character in his cambridge days, , ; dislike for mathematics and classics, , ; mr. watson on his cambridge career, , ; distaste for athletics generally, ; but fondness for walking as an exercise, ; his alpine ascents, ; tutors and contemporaries at cambridge, ; his share in a scene during one of the debates, at the union, , ; encounters with sir william harcourt, , ; connection with the cambridge conversazione society, - ; themes supported by him whilst an 'apostle,' - ; theological opinions at this period, ; interest in contemporary politics, the french revolution, - ; and the gorham case, ; visits paris, ; his affection for cambridge and reasons for his failure there, - ; reading for the bar, ; autobiographical memoranda and criticisms dealing with the choice of a profession, - ; a clerical career suggested, ; enters the inner temple, ; early legal education and practice, , ; introduction to journalism, ; takes ll.b. degree, lond., ; relations with grant duff and smith, - ; his readings of stephen's commentaries, bentham, greg, lardner, and paley, , ; impressions of maurice, , ; recollections of his theology by mr. llewelyn davies, , ; the 'christian observer,' - ; autobiographical account of his courtship and marriage, , stephen, sir james fitzjames--_the bar and journalism_: manifestation of moral and mental qualities described, , ; his powerful affections and lasting attachments, ; the positions of journalism and the law as affecting his career, - ; called to the bar, ; first brief, ; joins the midland circuit, - ; his views on the english bar, ; contemporaries on circuit, ; on monastic life, , ; at the crown court, ; characteristics of judges with whom he had intercourse, ; mr. justice wills's recollections of fitzjames, - ; method and manner as an advocate, , ; distaste for professional technicalities, , ; interest in criminal trials, ; the bacon case, - , ; work as a journalist, ; contributes to the 'morning chronicle,' 'christian observer,' 'law magazine,' ; 'saturday review,' - ; criticisms on novels and novelists, - ; opposition to the policy of the manchester school, , ; his views on theology and denunciation of positivism, ; doctrine of revenge and punishment, ; sir james stephen on fitzjames's literary work, - ; a legal history attempted and abandoned, , ; work on the education commission ( ), - ; literary work and interest in arctic adventure, ; the case of captain parker snow, , , ; recorder of newark ( ), ; last days and death of his father, - ; his essay on the wealth of nature, ; appreciation of james grant duff, ; death of john austin and lord macaulay ( ), ; enumerating his labours during this period, ; progress at the bar, ; complimented by mr. justice willes, ; revising barrister for north derby, ; presented with a red bag, ; circuit successes in - , ; reflections and performances during this period, , ; the two principal cases, ; his defence of a murderer, ; character of his literary work: 'essays by a barrister,' contributions to the 'london review,' 'cornhill magazine,' and 'fraser's,' - ; his conduct of dr. williams's trial, - ; his theological views at this time, - ; his acquaintance and discussion with newman, - ; his articles in 'fraser's magazine' and intimacy with froude, , ; friendship with the carlyles, - ; his general 'view of the criminal law,' ; aim and scope of the work, , ; fundamental agreement with bentham and austin, ; his article on jurisprudence and criticism of maine, - ; comparison of the english and french criminal systems, - ; divergence from bentham, , , , ; appreciation of the english system, ; favourable reception of the work, ; mr. justice willes and the press on his works and his ability and eloquence as an advocate, , ; connection with the 'pall mall gazette,' ; his contemporaries and antagonists on the journal, , ; number of articles appearing in its columns, , ; character of his productions and method of procedure, - ; his article on palmerston as an example of his style, , ; reflections on his characteristics as a journalist, , ; breadth of theological views, - ; political convictions, his liberalism defined, - ; summary of his literary activity at this time ( - ), , ; his literary tastes and aspirations, , ; his share in the agitation against governor eyre, - ; estrangement from j. s. mill, , ; professional work: arbitration cases, nettlefold & chamberlain, , ; takes silk in , and acts as judge, ; counsel in election petition cases, , , ; early and continued interest in india, ; stimulated by presence of friends leads him to accept appointment, - ; short residence in ireland previous to departure for india, , stephen, sir james fitzjames--_indian appointment_: length of his stay and details of his domestic experiences in india, , ; as a letter-writer, ; style of his correspondence, frankness, , ; paternal affection, , ; insatiable appetite for journalistic work, ; personal account of his official duties, ; his estimate of indian civil servants, ; his description of life in calcutta, ; friendships formed, ; personal nature of his indian story, , ; sources from which it has been culled, _n_; his official work in india, ; his views on the penal code, ; fitzjames and the initiation and development of legislation in india, , ; on the framing of a code, ; nature of his task, ; his act consolidating the bengal criminal law ( ), ; the punjab civil code, , ; the punjab land revenue act ( ), - , ; the criminal tribes act, , , ; the native marriages act ( ), - , ; his share in amending the penal code, , ; interest in the law relating to seditious libels, ; his share in amending the code of criminal procedure, - , ; his views on the penal code and the code of criminal procedure, , ; his treatment of the evidence act, - ; his appreciation of the limitation of suits act, , , ; revision of the contract act, , ; his bills on hindoo wills and oaths, ; summary of the results of his official labours, , ; sir c. p. ilbert and other critics on his legislation, ; his intellectual fitness for the work, - ; the special principles of indian legislation, ; as expounded in lord mayo's 'life,' - ; as given in his 'minute on the administration of british india,' - ; his account of lord mayo's work, his murder, state ceremonial, and trial of the murderer, - ; views on the prosecution and sentences of the kookas sect, , ; last attendance at legislative council, stephen, sir james fitzjames--_last years at the bar_: occupation during voyage to england, ; article on 'may meetings,' ; educational value of indian experience, ; arrival in england and meetings with old friends, ; death of his uncle henry and close of his mother's life, , ; return to professional career, ; his hopes concerning codification, , , ; position in intellectual society, ; appearance at the old bailey, ; goes on circuit, ; prepares homicide and other bills, and disgust at english legislative methods, - ; his 'liberty, equality, fraternity,' an apologia, - ; his differences with mill's latter theories, - ; views on law and the necessity of coercion in all matters appertaining to morality, - ; views on god and a future life, - ; criticisms of the book, , ; invited to stand for liverpool, ; expectations regarding codification and law-office appointments, , , ; acts as judge, vice mr. justice lush, , , , ; contests and is defeated at dundee, - ; lord beaconsfield on stephen as a politician, ; his lectures on parliamentary government, ; prospects of a judgeship disappear, ; resolves to codify and devote himself to literary work, ; the homicide bill, , ; work on consolidating indian acts, , ; and english law of contracts, _n_, ; leading counsel for london, chatham and dover railway co., ; practice before the judicial committee of the privy council, ; connection with the metaphysical society, - ; work on the criminal code, , ; the 'digest,' ; appointed professor of common law at the inns of court, , ; his 'digest' of the english law of evidence, ; his advanced reputation and schemes of various legal reforms, ; penal code scheme, - ; volume of his past work as a journalist, ; professional engagements on ecclesiastical cases, - ; his correspondence and friendship with lord lytton, - ; nature of the correspondence, , ; stephen's defence of lytton's indian policy, - ; his political views at this time, , ; made k.c.s.i, ; d.c.l. oxford, and member of several commissions, ; appointed judge, - ; note on his life in ireland, - stephen, sir james fitzjames--_judicial career_: first appearance, ; his 'history 'of the criminal law, , ; account of its inception, , ; the 'historical method,' , ; professor maitland's view of the work, , ; character of his literary style, , ; contents of the work, ; method of dealing with his subjects, ; history of trial by jury, - ; history of the 'benefit of the clergy,' and spiritual courts, , ; history of impeachments, ; ethical problems raised by the inquiry, - ; his work on nuncomar and impey: differences with macaulay, - ; illness, , ; judicial characteristics, - ; the convict lipski, ; and mrs. maybrick, ; his authority with juries in criminal cases, , ; examples of his judgments, , ; miscellaneous occupations: correspondence with lord lytton and lady grant duff, ; private, personal and other particulars regarding these letters, , ; his views on religious matters, - ; his poem on tennyson's 'despair,' - ; his dislike for buddhism and ascetic christianity, , ; respect for mohammedanism and calvinism, , ; his contributions to the 'st. james's gazette,' ; his criticisms and opposition to the 'ilbert bill' and home rule, - ; chairman of ordnance commission and judicial labour, , ; prepares the second edition of the 'view,' ; variety of his reading and study of languages at this time, , ; spanish and italian languages, cervantes and dante, , ; milton, ; death of his friends maine and venables, - ; appoints his son clerk of assize, ; death of his son and lord lytton, ; illness and resignation, , ; created a baronet, ; his french, scottish and american honours, ; residence at ipswich, , ; death and burial, , ; reflections on his career, , ; bibliography of his works and essays, - stephen, james kenneth, birth and education, ; eton contemporaries, ; prowess as an athlete, ; literary achievements and connection with the 'etonian,' ; his 'constitutional' opposition to moody and sankey, ; prizeman at eton, , ; life at cambridge university, , ; takes the character of 'ajax,' ; personal characteristics and political predilections, ; elected fellow of king's college, ; called to the bar, ; oratorical powers, ; his literary venture, the 'reflector,' and its fate, , ; appointed clerk of assize on south wales circuit, ; resignation of his assize clerkship and settlement at cambridge, ; illness and death, stephen, mr. james wilberforce, _n_ stephen, mr. james young, _n_ stephen, mr. john, _n_ stephen, mr. john, _n_ stephen, mr. john, judge in n. s. w., stephen, mr. leslie, _n_, ; on public school life at eton, , ; ascent of the jungfrauwith sir j. f. stephen, ; on the metaphysical society, , stephen, miss mary. _see_ hodson, archdeacon stephen, mr. oscar leslie, _n_ stephen, mr. oscar leslie, junior, _n_ stephen, miss sarah, character and works, _n_ stephen, miss sibella. _see_ morison, mr. william maxwell stephen, miss sibella. _see_ garratt, mrs. w. a. stephen, mr. thomas, provost of dundee, _n_ stephen, dr. william, physician and planter at st. christopher's, ; quarrel with his brother james, ; interest in his nephew william, ; his death, stephen, mr. william, _n_; visits his uncle at st. christopher's, ; returns home and studies medicine, ; settles at st. christopher's, ; assists his brother james, stephen, mr. william, _n_; his career, , , , ; death, ; his wife (mary forbes) and family, stephen, rev. william, characteristics of, , ; marries miss grace, sterling an 'apostle' at cambridge, sterne, as a novelist, stewart, mr., his share in the indian contract act, stokes, sir george, stokes, mr. whitley, _n_, , , , storks, sir henry, member of the jamaica commission, strachey, sir j. f. stephen's friendship with, ; official duties in india, , , ; residence in ireland, , stuarts, the criminal law in the time of, - stubbs, dr., swift as a clergyman, ; his pessimistic views on politics and religion, swinburne, algernon charles, his merits as a poet, switzerland, visit of sir j. and lady stephen to, , sykes, miss martha. _see_ venn, rev. henry syria, the romans in, an analogy, 'tablet,' the, on the ward-stephen controversy, talleyrand, taylor, sir henry, his intimacy with sir j. stephen, and story of the latter's official career, - , taylor, mr. p. a., vice-chairman of the jamaica committee, taylor, tom, an 'apostle' at cambridge, taylor on evidence discussed, , temple, sir richard, prepares the punjab civil code, ; on the punjab land revenue act, ; his share in the indian code of criminal procedure, tennyson, alfred, an 'apostle' at cambridge, ; criticism of the 'princess,' ; quoted, ; intimacy with g. s. venables, , ; connection with the metaphysical society, , ; his 'maud' quoted, ; his poem 'despair,' , thackeray, miss (mrs. richmond ritchie), sir j. f. stephen's letters to, , , thackeray, w. m., reference to his works and characters, , , ; intimacy with g. s. venables, ; edits the 'cornhill magazine,' ; intimacy with j. f. stephen, theology, sir j. f. stephen and, - , , , , - thirlwall, bishop, the historian, his defence of the cambridge 'apostles,' thomason, mr., his works relating to the administration of the punjab, thompson, william ('blarney'), the painter, ; his portrait of mr. james stephen, thompson, w. h., ; an 'apostle' at cambridge, ; master of trinity, cambridge, thomson, dr. william (archbishop of york), sir j. f. stephen's review of his pamphlet, thornton, mr. henry, of the clapham sect, thornton, mr. john, of the clapham sect, throckmorton, tichborne claimant, the, tierra del fuego, captain parker snow's explorations in, 'times,' the, j. d. cook's and j. s. venables' connection with, , _n_; criticised by the 'saturday review,' ; sir j. f. stephen's letters to , , tocqueville, on sir j. stephen's lectures on france, ; influence of his writings on j. s. mill, tooke, horne, , 'torch,' the, its account of the dundee election, , , trappist monastery, charnwood forest, sir j. f. stephen's visit to, , trevelyan, sir george, tudors, the criminal law in the time of the, turkey, war with russia, tyndall, professor, his connection with the metaphysical society, ultramontane controversy, - unitarianism, ; its counterpart in india, united states, the, effect of james stephen's writings on england's relations with, ; legislation in, compared with england, . _see_ america _and_ american utilitarianism and utilitarians, , , , , , , - , , , , - , , venables, george stovin, friendship with sir j. f. stephen, , , , ; his public school, university, and professional career, ; his contributions to the 'saturday review' and 'times,' , ; sir j. f. stephen's biographical notice of, , venables, mrs. lyster, venn, miss caroline. _see_ batten, rev. ellis venn, miss catherine eling, _n_ venn, miss emelia, particulars concerning, _n_, - , venn, rev. henry, vicar of huddersfield, his character, life, and works , venn, rev. henry, birth and education, ; influence over james stephen, , , ; marriage to miss sykes, ; livings, ; connection with church missionary society, ; character, - ; his vindication of sir j. stephen, ; j. f. stephen's residence with and opinion of, , ; on the choice of a profession for fitzjames, , ; suggests that he should edit the 'christian observer,' , ; his death, venn, rev. john, of clapham, venn, rev. john, rector of clapham, ; founder and projector of the church missionary society, ; his wife (miss catherine king) and child, _n_, venn, rev. john, birth, _n_; influence over james stephen, , , ; life in hereford, ; character, ; connection with rev. j. w. cunningham, ; sir j. f. stephen visits, venn, dr. john, on the venn family, _n_ venn, rev. richard, ; marries miss ashton, venn, rev. william, vicar of atterton, _n_ victoria, queen, proclaimed empress of india, walpole, his 'life of perceval,' walter, mr. john, his interest in j. d. cook, war office, disorganised state of, warburton, bishop, and the rev. richard venn, ; as a clergyman, ward, mr. w. g., his connection with the metaphysical society, , ; his encounters with sir j. f. stephen, , , , warwick, sir j. f. stephen at, watson, david, his unitarian tendencies, watson, rev. w. h., on sir j. f. stephen at cambridge, ; an 'apostle' at cambridge, watts's hymns, webbe, sir john, his business relations with james stephen, , webster, sir richard, attorney-general, wellesley, his work in india, , wengern alp, the, wensleydale, lord, wesley, rev. john, ; sir j. stephen on, ; and the church of england, westbury, lord, , ; his judgment in dr. williams's case, , whewell, william, at cambridge university, ; relations with sir james and j. f. stephen, whewell scholarship at cambridge, whitbread, samuel, parliamentary encounters with james stephen, whitefield, george, whitworth, mr. g. c., his criticisms of sir j. f. stephen's views on the law of evidence, wilberforce, william, his crusade against the slave trade and relations with james stephen, , , , ; presents rev. henry venn to living, ; sir james stephen and, , ; j. f. stephen's first greeting to, 'wilberforce's walk,' willes, mr. justice, , , williams, mr., publisher of paine's 'age of reason,' his trial, williams, sir monier, and native testimony regarding our rule in india, williams, mr. montagu, williams, dr. rowland, his trial, , ; fitness of j. f. stephen to defend, , ; his speech and line of defence, , ; result of the trial, , ; conduct of the case, ; work on, wills, mr. justice, his reminiscences of sir j. f. stephen, - wilson, mr. h. f., _n_ winchester college, mr. r. lowe on, wolfe, 'burial of sir john moore,' the, wordsworth, his poems, , xavier, st. francis, sir j. stephen on, , yeaman, mr., opposes sir j. f. stephen at dundee, , young, sir charles, late secretary english church union, young's 'night thoughts,' master stephen's early acquaintance with, _spottiswooode & co. printers, new-street square, london._ * * * * * transcriber's note: the following changes have been made to the text: in the index entry for "lady egerton" page was changed to . in the index entry for "stephen, sir james fitzjames—_judicial career_: bibliography of his works and essays," " - " was changed to " - ". page : "try ot teach" changed to "try to teach". page : added missing footnote anchor for footnote . page : "conected with some" changed to "connected with some". page : "uch as , " changed to "much as , ." page : "with with fitzjames" changed to "with fitzjames". page : " , the trial of nelson and brand" changed to " , the trial of nelson and brand". page : "intelligble principles" changed to "intelligible principles". page : "partly from comtempt" changed to "partly from contempt". page : "expreses very scanty" changed to "expresses very scanty". page : "editor of th 'times" changed to "editor of the 'times". page : "robespierre, sir j. f. stephen s" changed to "robespierre, sir j. f. stephen's. page " "anti-slavery crusude" changed to "anti-slavery crusade". page : "visit to the beaumonts" changed to "visit to the beamonts". none gallica (bibliothèque nationale de france) at http://gallica.bnf.fr publications of the scottish history society, volume xxxvi lauder of fountainhall's journals may [illustration: lord fountainhall.] journals of sir john lauder lord fountainhall with his observations on public affairs and other memoranda - edited, with introduction and notes, by donald crawford sheriff of aberdeen, kincardine, and banff [illustration: sir john lauder, first baronet. (lord fountainhall's father.)] contents introduction journals:-- i journal in france, - , ii . notes of journeys in london. oxford, and scotland, - , . notes of journeys in scotland, - , . chronicle of events connected with the court of session, - , . observations on public affairs, - , iii appendix i. accounts, - , ii. catalogue of books, - , iii. letter of lauder to his son, portraits i. lord fountainhall ii. sir john lauder, first baronet, lord fountainhall's father iii. janet ramsay, first wife of lord fountainhall iv. sir andrew ramsay, lord abbotshall all reproduced from pictures in the possession of lady anne dick lauder. introduction the manuscripts there are here printed two manuscripts by sir john lauder, lord fountainhall, and portions of another. the first[ ] is a kind of journal, though it was not written up day by day, containing a narrative of his journey to france and his residence at orleans and poictiers, when he was sent abroad by his father at the age of nineteen to study law in foreign schools in preparation for the bar. it also includes an account of his expenses during the whole period of his absence from scotland. the second,[ ] though a small volume, contains several distinct portions. there are narratives of visits to london and oxford on his way home from abroad, his journey returning to scotland, and some short expeditions in scotland in the immediately following years, observations on public affairs in - , and a chronicle of events connected with the court of session from to ; also at the other end of the volume some accounts of expenses. the third[ ] may be described as a commonplace book, for the most part written during the first years of his practice at the bar and his early married life, but it also contains some notes of travel in fife, the lothians, and the merse in continuation of those in ms. h., and a list of the books which he bought and their prices, brought down to a late period of his life. these manuscripts have been kindly made available to the scottish history society by the owners. the first is in the library of the university of edinburgh. the second is the property of the late sir william fraser's trustees. the third has been lent by sir thomas north dick lauder, fountainhall's descendant and representative. [ ] referred to as ms. x. [ ] marked by fountainhall h. [ ] marked by fountainhall k. it was lord fountainhalls practice, during his whole life, to record in notebooks public events, and his observations upon them, legal decisions, and private memoranda. he kept several series of notebooks concurrently with great diligence and method. in all of those which have been preserved there is more or less matter of value to the student of history. but at his death his library was sold by public auction. the mss. were dispersed, though their existence and value was known to some of his contemporaries.[ ] some are lost, in particular the series of _historical observes_, - , which, judging from the sequel, which has been preserved and printed by the bannatyne club, would have been of great value. according to tradition the greater part of what has been recovered was found in a snuff-shop by mr. crosby the lawyer, the supposed original of scott's pleydell, and purchased at the sale of his books after his death by the faculty of advocates.[ ] [ ] preface to forbes's _journal of the session_, edinburgh, . [ ] ms. genealogical roll of the family of lauder by the late sir thomas dick lauder, in possession of sir t.n. dick lauder. eight volumes came into the possession of the faculty of advocates, and under their auspices two folio volumes of legal decisions from to were published in and .[ ] in the bannatyne club printed _the historical observes_, - , a complete ms. in the advocates' library, and in they printed two volumes of _historical notices_, - . these are after selections from the same mss. from which the folio of was compiled, and the additions to the text of the folio are not numerous, though the historical matter, which was buried among the legal decisions, is presented in a more convenient form. but from to (about half of vol. i.) and especially from (for the previous entries occupy only a few pages) the notices are all new and many of them of considerable interest. in printing these volumes, which i believe are acknowledged to contain some of the best material for the history of scotland at the time, the bannatyne club carried out a design which had been long cherished by the late sir thomas dick lauder,[ ] though he did not live to see its complete fulfilment, and he was helped in his efforts by sir walter scott. the story[ ] is worth telling more fully than has yet been done. in the winter of - sir thomas, then a young man, met sir walter at a dinner-party. sir walter expressed his regret 'that something had not been done towards publishing the curious matter in lord fountainhall's mss.,'[ ] and urged sir thomas to undertake the task. in sir thomas wrote to scott asking about a box in the advocates' library believed to contain mss. of fountainhalls. sir walter replied as follows:-- [ ] see mr. david laing's preface to the _historical notices_, p. xx, bannatyne club. [ ] author of _the moray floods, the wolf of badenoch_, and other well-known books. [ ] the original correspondence was bound up by sir thomas in a volume along with mylne's book (see _infra_), and is in the possession of sir t.n. dick lauder. [ ] letter, sir t.d. lauder to sir w. scott, nd may , _infra_. 'dear sir,--i am honoured with your letter, and should have been particularly happy in an opportunity of being useful in assisting a compleat edition of lord fountainhall's interesting manuscripts. but i do not know of any in the advocates' library but those which you mention. i think it likely i may have mentioned that a large chest belonging to the family of another great scottish lawyer, sir james skene of curriehill, was in our library and had never been examined. but i could only have been led to speak of this from the similarity of the subject, not from supposing that any of lord fountainhall's papers could possibly be deposited there. i am very glad to hear you are busying yourself with a task which will throw most important light upon the history of scotland, and am, with regard, dear sir, your most obedt. servant, 'walter scott. '_edinr., february ._' after a further interchange of letters in the matter slumbered till when there appeared a volume entitled _chronological notes of scottish affairs from till , being chiefly taken from the diary of lord fountainhall_ (constable, ), with a preface by sir walter scott, who had evidently forgotten his correspondence with sir thomas.[ ] the volume in reality contained a selection, comparatively small, from fountainhall's notebooks in the advocates' library, with copious interpolations by the author, robert mylne (who died in ), not distinguished from the authentic text of the notes, and greatly misrepresenting fountainhall's opinions. the next stage in the correspondence may be given in sir thomas's own words:-- [ ] the preface and mylne's interpolations are appended to mr. laing's preface to the _historical notices_. 'having been much astonished to learn, from a perusal of the foregoing review,[ ] that sir walter scott had stolen a march on me, and published a manuscript of lord fountainhall's, at the very time when he had reason to believe me engaged in the work, and that by his own suggestion, and being above all things surprised that he had not thought it proper to acquaint me with his intention before carrying it into effect, i sat down and wrote to him the following letter, in which, being aware how much he who i was addressing was to be considered as a sort of privileged person in literary matters, i took special care to give no offence, to write calmly, and to confine myself to such a simple statement of the facts as might bring a blush into his face without exciting the smallest angry feeling. i hoped, too, that i might prevail on him, as some atonement for his sins, to lend a helping hand to bring forth the real work of lord fountainhall in a proper style.' [ ] in constable's magazine. see _infra_. to sir walter scott of abbotsford, baronet. '_relugas, near forres_, _ nd may _. 'dear sir,--from _constable's magazine_ for last month, which has this moment fallen into my hands, i learn, for the first time, with some surprise, but with much greater delight than mortification, that you have condescended to become the editor of a portion of my ancestor lord fountainhall's mss. from this i am led to believe, that the circumstance of my having been engaged in the work since must have escaped your recollection, otherwise i think you would have informed me of _your_ intention or inquired into _mine_. in the winter - , i had the happiness of meeting you at the table of our mutual friend, mr. pringle of yair, where you expressed regret to me that something had not been done towards publishing the curious matter contained in lord fountainhall's mss., urging me at the same time to undertake the task. having also soon afterwards been pressed to perform this duty by mr. thomas thomson, mr. napier, and several other literary friends, i was led to begin it, and lord meadowbank having presented my petition to the dean and faculty of advocates, they were so liberal as to permit me to have the use of the mss. in succession at fountainhall, where i then was on a visit to my father, and where i transcribed everything fit for my purpose. emboldened by the remembrance of what passed in conversation with you at mr. pringle's, i took the liberty of trespassing on you in a letter dated th february , to beg you would inform me whether you knew of the existence of any of lord fountainhall's mss. besides the eight folio volumes i had then examined. you did me the honor to write me an immediate reply, in which you stated that you knew of no other mss. but those i had mentioned, and you conclude by saying, that you were glad to hear that i was busying myself in a task which would throw much light on the history of scotland. in may , whilst engaged here in arranging and retranscribing the materials i had collected for the work in the order of a journal, i met with a little difficulty about the word forres, which the sense of the passage led me to read forrest, meaning ettrick forrest. knowing that you were the best source from which true information on such subjects was to be drawn, and presuming upon your former kindness, i again addressed you, rd may , begging to know whether i was right in my conjecture. to this i received a very polite answer in course of post, in which you express great pleasure in complying with my request, and are so obliging as to conclude with the assurance that at any time you will be happy to elucidate my researches into my ancestors' curious and most valuable manuscripts with such hints as your local knowledge may supply. 'since the period to which i have just alluded, i have continued to prosecute the work, but only at intervals, having met with frequent interruptions, among which i may mention an excursion to italy; and after having finished about two-thirds of it in my own handwriting, it is only now that i have been able to complete it, by the aid of an amanuensis. i do not much wonder that, employed as you are in administering fresh draughts of enjoyment from the exhaustless spring of your genius to the ever-increasing thirst of a delighted public, you should have forgotten my humble labours. but whilst i regret that they should have been so forgotten, inasmuch as they might have contributed to aid or lessen yours, i beg to assure you, that every other feeling is absorbed in that of the satisfaction i am now impressed with in learning that you have taken lord fountainhall under your fostering care, as i am well aware that, independent of the honor done him and his family by his name being coupled with that of sir walter scott, there does not now, and perhaps there never will, exist any individual who could elucidate him so happily as your high talents and your deep research in the historical anecdote of your country must enable you to do. i am naturally very desirous to see your publication, of which i cannot procure a copy from the booksellers here. i should not otherwise have intruded on you until i had seen the book, as i am at present ignorant how far it clashes or agrees with the plan of the work i have prepared. as business calls me to edinburgh, i can now have no opportunity of perusing it before my departure, as i leave this on tuesday the th instant i observe, however, with great gratification, from a quotation in the _magazine_ from your preface, that you hold out hopes of a farther publication, and i am consequently anxious to avail myself of being in edinburgh to have the honor of an interview with you, that i may avoid any injudicious interference with your undertaking, and rather go hand in hand with you in promoting it. as i shall be detained on the road, i shall not be in edinburgh until the evening of friday the st, and my present intention is to remain in town only saturday and sunday, unless unavoidable circumstances occur to prevent my leaving it on the monday. if you could make it convenient to grant me an audience on either of the days i have mentioned, viz., on saturday, or sunday, the st or nd of june, you would very much oblige me, and it will be a further favor if you will have a note lying for me at mrs. president blair's, or at my agent, mr. macbean's, charlotte square, stating the precise time when you can most conveniently receive me, that i may not be so unfortunate as to call on you unseasonably. with the highest respect, and with very great regard, i have the honor to be, dear sir, very truly yours, thos. dick lauder.' to this sir walter replied:-- 'my dear sir,--i am sorry you could for a moment think that in printing rather than publishing lord fountainhall's notes or rather mr. milne's, for that honest gentleman had taken the superfluous trouble to write the whole book anew, i meant to interfere with your valuable and extensive projected work. i mentioned in the advertisement that you were engaged in writing the life of lord fountainhall, and therefore declined saying anything on the subject, and i must add that i always conceived it was his life you meant to publish and not his works. i am very happy you entertain the latter intention, for a great deal of historical matter exists in the manuscript copy of the collection of decisions which has been omitted by the publishers, whose object was only to collect the law reports and who appear in the latter volume entirely to have disregarded all other information. there is also somewhere in the advocates' library, but now mislaid, a very curious letter of lord fountainhall on the revolution, and so very many other remains of his that i would fain hope your work will suffer nothing by my anticipation, which i assure you would never have taken place had i conceived those notes fell within your plan. the fact was that the letter on the revolution was mislaid and the little ma[nuscript] having disappeared also, though it was afterwards recovered, it seemed to me worth while to have it put in a printed shape for the sake of preservation, and as only one hundred copies were printed, i hope it will rather excite than gratify curiosity on the subject of lord fountainhall. i expected to see you before i should have thought of publishing the letter on the revolution, and hoped to whet your almost blunted purpose about doing that and some other things yourself. i think a selection from the decisions just on the contrary principle which was naturally enough adopted by the former publishers, rejected[ ] the law that is and retaining the history, would be highly interesting. i am sure you are entitled to expect[ ] on all accounts and not interruption from me in a task so honorable, and i hope you will spare me a day in town to talk the old judge's affairs over. the history of the bass should be a curious one. you are of course aware of the anecdote of one of your ancestors insisting on having the "auld craig back again." 'constable undertook to forward to you a copy of the notes with my respects, and it adds to my piggish behaviour that i see he had omitted it. i will cause him send it by the ferry carrier. 'i beg to assure you that i am particularly sensible of the kind and accomodating view you have taken of this matter, in which i am sensible i acted very thoughtlessly because it would have been easy to have written to enquire into your intentions. indeed i intended to do so, but the thing had gone out of my head. i leave edin'r in july, should you come after the of that month may i hope to see you at abbotsford, which would be very agreeable, but if you keep your purpose of being here in the beginning of june i hope you will calculate on dining here on sunday d at five o'clock. i will get sharpe to meet you who knows more about l'd fountainhall than any one.--i am with great penitence, dear sir thomas, your very faithful humble servant, 'walter scott.' [ ] _sic_ for rejecting. [ ] a word is omitted, perhaps 'assistance.' 'n.b.--the foregoing letter from sir walter, written in answer to mine of the th may,[ ] sufficiently shows the extent of the dilemma he found himself thrown into. it is full of strange contradictions. he talks of "_printing_ rather than _publishing_" a book which was _publickly_ advertised _and publickly_ sold. he assures me that he believed that it was _fountainhall's life_, and not his _works_ i meant to publish, though the former part of the correspondence between us must have made him fully aware that it was _the works_ i had in view; and he unwittingly proves to me immediately afterwards that he had not altogether forgotten that it was _the works_ i had taken in hand to publish, for he says, "i expected to see you before i should have thought of publishing the letter on the revolution, and hoped to _whet your almost blunted purpose about doing that and some_ other things yourself." and again afterwards--"it would have been easy to have written to enquire into your intentions, indeed _i intended to do so_, but the thing had gone out of my head." why did you intend to write to me, sir walter, about intentions which you have said you were unconscious had any existence? but who can dare to be angry with sir walter scott? who could be savage enough to be angry with the meanest individual who could write with so much good nature and bonhommie as he displays in his letter? had one particle of angry feeling lurked in my bosom against him, i should have merited scourging. my answer was as follows....' [ ] _sic_ for nd may. sir thomas was unable to accept sir walter's invitation, but proposed to call on him, and received the following reply:-- 'my dear sir thomas,--i am much mortified at finding that by a peremptory message from my builder at abbotsford, who is erecting an addition to my house, i must set out there to-morrow at twelve. but we must meet for all that, and i hope you will do me the honour to breakfast here, though at the unchristian hour of _nine o'clock_, and if you come as soon after eight as you will, you will find me ready to receive you. i mention this because i must be in the court at _ten_. i hope this will suit you till time permits a longer interview. i shall therefore expect you accordingly.--yours very sincerely, walter scott. '_castle street, friday_' 'it gives me sincere regret that this unexpected news[ ] prevents my having the pleasure of receiving you on monday.' [ ] this word doubtful. it is indistinctly written. sir thomas proceeds in his narrative:-- 'n.b.--i kept my appointment accurately to the hour and minute, and found the great unknown dashing off long foolscap sheets of what was soon to interest the eyes, and the minds, and the hearts of the whole reading world; preparing a literary food for the voracious maw of the many-headed monster, every mouth of which was gaping wide in expectation of it. he received me most kindly, though i could not help secretly grudging, more than i have no doubt he did, every moment of the time he so good-naturedly sacrificed to me. he repeated in words, and, if possible, in stronger terms, the apologies contained in his letter. i offered him my manuscript and my humble services. he insisted that he would not rob me of the fruits of my pious labours. "as i know something of publishing," said he, with an intelligent smile on his countenance, "i shall be able to give you some assistance and advice as to how to bring the work properly and respectably out." i thanked him, and ventured to entreat that he would add to the obligation he was laying me under by giving me a few notes to the proposed publication. in short, the result of an hour's conversation was that he undertook to arrange everything about the publication with a bookseller, and to give me the notes i asked, and, in fact, to do everything in his power to assist me, and i left him with very great regret that a matter of business prevented me from accepting of his pressing invitation to breakfast. before parting, he wrote for me the ensuing letter to mr. kirkpatrick sharpe, which i was deprived of an opportunity of delivering by the shortness of my visit to edinburgh.' sir thomas soon afterwards completed his transcript, and on th june he wrote:-- '_relugas, near forres, th june_ . 'my dear sir walter,--can you pardon me for thus troubling you, in order to have my curiosity satisfied about our old friend fountainhall, whose work i gave you in july last. i hope you received the remainder of the manuscript in october from my agent, mr. macbean. if you can spare time to say, in a single line, what is doing about him, you will confer a great obligation, on yours very faithfully, t.d. lauder.' sir walter replied:-- 'my dear sir,--we have not taken any steps about our venerable friend and your predecessor, whose manuscript is lying safe in my hands. constable has been in london this long time, and is still there, and cadell does not seem willingly to embark in any enterprize of consequence just now. we have set on foot a sort [of] scottish roxburgh club[ ] here for publishing curiosities of scottish literature, but fountainhall would be a work rather too heavy for our limited funds, although few can be concerned which would come more legitimately under the purpose of our association, which is made in order to rescue from the chance of destruction the documents most essential to the history and literature of scotland. 'we are having a meeting on the th july, when i will table the subject, and if we possibly can assist in bringing out the worthy judge in good stile, we will be most ready to co-operate with your pious endeavours to that effect. i should wish to hear from you before that time what you would wish to be done in the matter respecting the size, number of the impression, and so forth. whatever lies in my limited power will be gladly contributed by, dear sir, your very faithful servant, 'walter scott. _'castle street, june .'_ [ ] the bannatyne club was instituted on th february . its object was to print works of the history, topography, poetry, and miscellaneous literature of scotland in former times. sir walter scott was president till his death. the club's last meeting was in , but there were some publications till . and in answer to further inquiry he again wrote on th july :-- 'my dear sir thomas,--you are too easily alarmed about the fate of your ancestors. i did not mean it would not be published--far less that i would not do all in my power to advance the publication--but only that the size and probable expense of the work, with the limited sale for articles of literature only interesting to the scottish antiquaries, rendered the booksellers less willing to adopt the proposal than they seemed at first. however i thought it as well to wait until constable himself came down from london, as i had only spoken with his partner, and i have since seen him, and find him well disposed to the undertaking. i told him i would give with the greatest pleasure any assistance in my power in the way of historical illustration, and that i concluded that you, to whom the work unquestionably belongs, would contribute a life of the venerable lawyer and some account of his family. mr. thomson has promised to look through the manuscript and collate it with that of mr. maule, and is of opinion (as i am) that it would be very desirable to retrench all the mere law questions which are to be found in the printed folios. indeed the editors of those two volumes had a purpose in view directly opposed to ours, for they wished to omit historical and domestic anecdotes and give the law cases as unmixed as possible, while it would be our object doubtless to exclude the mere law questions in favour of the other. no doubt many of the law cases are in themselves such singular examples of the state of manners that it would be a pity not to retain them even although they may be found in the printed copy because they are there mixed with so much professional matter that general readers will not easily discover them. 'the retrenching of the mere law will entirely advantage the general sale of the work besides greatly reducing the expense, and in either point of view it will make it a speculation more like to be advantageous. i think constable will be disposed to incur the expense of publishing at his own risque, allowing you one half of the free profits which the established mode of accounting amongst authors and booksellers circumcises so closely that the sum netted by the author seldom exceeds a 'd or thereabout. but then you have no risque, and that is a great matter. my experience does not encourage me to bid you expect much profit upon an undertaking of this nature, in fact on any that i have myself tried i have been always rather a loser; but still there may be some, and i am sure the descendant of lord fountainhall is best entitled to such should it arise on his ancestor's work. i think you had better correspond with constable, assuring him of my willingness to help in any thing that can get the book out, and i am sure mr. thomson will feel the same interest i have to leave here to-morrow for four months, but as i am only at abbotsford i can do any thing that may be referred to me. 'as for milne's notes, there are many of them that i think worth preservation as describing and identifying the individuals of whom fountainhall wrote, although his silly party zeal makes him, like all such partizans of faction, unjust and scurrilous. 'i have only to add that the manuscript is with mr. thomson for the purpose of collation, and that i am sure constable will be glad to treat with you on the subject of publication, and that i will, as i have always been, be most ready to give any notes or illustrations in my power, the only way i suppose in which i can be useful to the publication. the idea of retrenching the law cases, which originates with thomson, promises, if you entertain it, to remove the only possible objection to the publication, namely the great expense. my address for the next four months is, abbotsford, by melrose, and i am always, dear sir thomas, very much your faithful, humble servant, walter scott. _'edin'r, july .'_ again on th november :-- 'dear sir thomas,--i have sent the manuscript to mr. macbean, charlotte square, as you desire. it is a very curious one and contains many strange pictures of the times. our ancestors were sad dogs, and we to be worse than them, as horace tells us the romans were, have a great stride to make in the paths of iniquity. men like your ancestor were certainly rare amongst them. i had a scrap some where about the murder of the lauders at lauder where fountainhall's ancestor was baillie at the time. after this misfortune they are said to have retired to edinburgh. fountainhall's grandfather lived at the westport. all this is i hope familiar to you, i say i hope so, for after a good deal of search i have abandoned hope of finding my memorandum. 'i have seen constable who promises to send me the sheets as they are thrown off, and any consideration that i can bestow on them will be a pleasure to, dear sir thomas, your most obedient servant, walter scott. _'edin'r, d december.'_ the last letter on the subject, written apparently by mr. cadell, is as follows:-- _'edinburgh, july ._ 'dear sir,--we duly received your much esteemed letter of instant, and beg to assure you that we are as willing as ever to do what we stated last year in bringing out your ms. in a creditable way. the reason, and the only reason of delay, has been the indisposition of mr. constable, who has from last november till about a month ago been unable to give his time to business. 'having communicated your letter to him we beg now to state that we shall take immediate steps for getting the work expedited. the ms. is still in mr. thomson's hands, but we shall see him on the subject forthwith. it is proposed to print the work in vols. octavo handsomely, the number copies.--we remain, sir, with much respect, your most, arch. constable & co. 'sir thos. dick lauder, bart.' 'the publication,' as mr. laing says in his preface, 'intended to form two volumes in octavo, under the title of _historical notices of scottish affairs_, had actually proceeded to press to page in , when the misfortunes of the publisher put a stop to the enterprise. after an interval of several years the greater portion of sir thomas's transcripts was placed at the disposal of the bannatyne club.' the result was the publication of the _observes_ and the _historical notices_. mr. laing adds, 'if at any subsequent time some of his missing mss. should be discovered, another volume of selections, to include his early journal and extracts from his smaller notebooks, might not be undeserving the attention of the bannatyne club.' the journal in france, though never printed, was reviewed by mr. cosmo innes in in the _north british review_, vol. xli. p. . outline of fountainhall's life a short relation of lord fountainhall's life is given in mr. david laing's preface to the _historical notices_. he was born in . his father was john lauder, merchant and bailie of edinburgh, of the family of lauder of that ilk.[ ] he graduated as master of arts in the university of edinburgh in . he went to france to study in , and returned from abroad in . he was 'admitted' as an advocate in . he was married in to janet, daughter of sir andrew ramsay of abbotshall,[ ] provost of edinburgh, afterwards a lord of session. in , along with the leaders of the bar and the majority of the profession, he was 'debarred' or suspended from practising by the king's proclamation for asserting the right of appeal from the decisions of the court of session, and was restored in . he was knighted in . in the same year his father, who was then eighty-six years old, purchased the lands of woodhead and others in east lothian. the conveyance is to john lauder of newington in liferent, and sir john lauder, his son, in fee. the lands were erected into a barony, called fountainhall. in , he was returned as member of parliament for the county of haddington, which he represented till the union in . in his wife, by whom he had a large family, died. in he married marion anderson, daughter of anderson of balram. he was appointed a lord of session in , and a lord of justiciary in . he resigned the latter office in , and died in . his father had been made a baronet in by james vii. the succession under the patent was to his son by his third marriage; but in , after the revolution, a new patent was granted by william and mary to sir john lauder, senior, and his eldest son and his heirs. the first patent was reduced in , and in the same year fountainhall succeeded on his father's death. [ ] 'sir john lauder of fountainhall is deschended of the lauders of that ilk, and his paternall coat is immatriculate and registrate in the lyons book of herauldrie.'--unprinted ms. by lauder, in possession of sir t.n. dick lauder. a genealogical roll in ms., of the lauder family, compiled by sir t. dick lauder, also in the present baronet's possession, has afforded much useful information; and for lauder's family connections, i have also consulted mrs. atholl forbes's _curiosities of a scottish charter chest_, and mrs. stewart smith's _grange of st. giles_. [ ] see appendix iii. the following estimate of his character in forbes's preface to the _journal of the session_ ( ), a rare book, is quoted by mr. laing, but is too much in point to be omitted here. 'the publick and private character of this excellent judge are now so well known that i need say no more of him than that he signalized himself as a good patriot and true protestant in the parliament of in defence of the penal laws against popery. this self-denyed man hath taken no less pains to shun places that were in his offer than some others have been at to get into preferment. witness his refusing to accept a patent in the year to be the king's advocate, and the resigning his place as a lord of justiciary after the union, which her majesty with reluctancy took off his hand. in short, his lordship is (what i know by experience) as communicative as he is universally learned and knowing. he hath observed the decisions of the session from november till november , which i have seen in manuscript; but his excessive modesty can't be prevailed on to make them publick.' there are no materials for expanding mr. laing's sketch of fountainhall's life, except in so far as the notes of his travels and his expeditions into the country, and the accounts, here printed, give some glimpses of his habits and his domestic economy in his early professional years. he lived in troubled times, but his own career was prosperous and comparatively uneventful. the modesty which professor forbes truly ascribes to him disinclined him to take a part, as a good many lawyers did, in public affairs, except for a short period before the revolution, as a member of parliament; and, together with his prudence and strong conscientiousness, preserved him from mixing in the political and personal intrigues which were then so rife in the country. the same modesty is apparent in his writings in mature life to a tantalising degree. it may not be so conspicuous in his boyish journal, when he was ready enough to throw down the gauntlet in a theological discussion; but in the later voluminous mss., when even dry legal disputes are enlivened by graphic and personal touches, the author himself rarely appears on the scene. we miss the pleasant details of clerk of penicuik's _memoirs._[ ] we learn little of the author's daily walk and conversation. it does not even appear (so far as i know) where his house in edinburgh was. we do not know how often he went to fountainhall, or whether he there realised his wish to spend half his time in the country.[ ] we do not know how he occupied himself there, though it may be gathered that he took much interest in the management of his property and in country business, and he records with much gratification his appointment as a justice of the peace. he tells us nothing of his wife, except how much money she got for housekeeping, and nothing of his children, except when he records their births or deaths. nothing of his personal relations with his distinguished contemporaries at the bar, or with the men who, as officers of state and privy councillors, still governed scotland in edinburgh. [ ] scottish history society. [ ] journal, p. . on the other hand, his opinions on all subjects, on public affairs and public men, on such questions of speculation or ethical interest as astrology and witchcraft, often strikingly expressed in language always racy and sincere, are scattered through the published volumes of his writings, all printed without note or comment. it may at least be a tribute to fountainhall's memory to present a short view of his opinions, and for that purpose i have not scrupled to quote freely, especially from the _historical observes,_ a delightful book, which deserves a larger public than the limited circle of its fortunate possessors. fountainhall's political opinions were moderate, in an age when moderation was rare. we are tempted to think, if i am not mistaken, that in that dark period of scottish history, every man was a furious partisan, as a royalist or a whig, or as an adherent of one or other of the chiefs who intrigued for power. but it may be that lauder's attitude reflects more truly the average opinions of educated men of the time. his political opinions his political position has perhaps been imperfectly understood by the few writers who have had occasion to refer to it. mr. laing's statement, that prior to the revolution 'he appears generally to have acted only with those who opposed the measure of the court,' is not, i venture to think, wholly accurate. it is true that on one occasion, no doubt memorable in his own life, he incurred the displeasure of the government. when james vii. on his accession proposed to relax the penal laws against roman catholics, while enforcing them against presbyterians, lauder, who had just entered parliament, opposed that policy and spoke against it in terms studiously moderate and respectful to the crown. the result, however, was that he became a suspected person. as he records in april , 'my servants being imprisoned, and i threatened therewith, as also that they would seize upon my papers, and search if they contained anything offensive to the party then prevailing, i was necessitat to hide this manuscript, and many others, and intermit my historick remarks till the revolution in the end of .' hence the revolution was perhaps welcome to him. as an adherent of character and some position he met with marked favour from the new sovereigns, who promoted him to the bench, and corrected the injustice which had been done to him in the matter of the patent of his father's baronetcy, and also granted him a pension of £ a year, an addition of fifty per cent. to his official salary. shortly afterwards he was offered the post of lord advocate, but declined it, because the condition was attached that he should not prosecute the persons implicated in the massacre of glencoe.[ ] from these facts it has been sometimes inferred that lauder was disaffected to the stewart dynasty, and that his professional advancement was thereby retarded. in reality his career was one of steady prosperity. having already received the honour of knighthood while still a young man, and being a member of parliament for his county, he became a judge at the age of forty-three. so far from holding opinions antagonistic to the reigning house, lauder was an enthusiastic royalist. he was indeed a staunch protestant at a time when religion played a great part in politics. in his early youth the journal here published shows him as perhaps a bigoted protestant. but he was not conscious of any conflict between his faith and his loyalty till the conflict was forced upon him, and that was late in the day. in this position he was by no means singular. sir george mackenzie, who as lord advocate was so vigorous an instrument of charles ii.'s policy, refused, like lauder, to concur in the partial application of the penal laws, and his refusal led to his temporary disgrace. lauder was not even a reformer. he was a man of conservative temperament, and while his love of justice and good government led him to criticise in his private journals the glaring defects of administration, and especially the administration of justice, there is no evidence that he had even considered how a remedy was to be found. there was indeed no constitutional means of redress, and all revolutionary methods, from the stubborn resistance of the covenanters, to the plots in london, real or imaginary, but always implicitly believed in by lauder, and the expeditions of monmouth and argyll, met with lauder's unqualified disapproval and condemnation. [ ] it has been said that there is no sufficient evidence of this honourable incident in fountainhall's career. but sir thomas dick lauder (ms. genealogical roll, _supra_) reproduces it in a poem to the memory of sir john lauder, published in , and attributed to blair, the author of 'the grave,' in which the following lines occur. he 'saw guiltless blood poured out with lavish hand, and vast depopulated tracts of land; and saw the wicked authors of that ill unpunished, nay, caressed and favoured still. the power to prosecute he would not have, obliged such miscreants overlooked to save.' [sidenote: h.o. ] [sidenote: h.o. ] [sidenote: decisions, p. .] i shall cite some passages in illustration. when charles ii. died and james was proclaimed, lauder writes that 'peoples greiff was more than their joy, having lost their dearly loved king'; then after a gentle reference to 'his only weak syde,' he says, 'he was certainly a prince indued with many royall qualities, and of whom the divine providence had taken a speciall care by preserving him after worcester fight in the oak.' ... 'a star appeared at noon day at his birth; he was a great mathematician, chemist, and mechanick, and wrought oft in the laboratories himselfe; he had a natural mildnesse and command over his anger, which never transported him beyond an innocent puff and spitting, and was soon over, and yet commanded more deference from his people than if he had expressed it more severely, so great respect had all to him. his clemencie was admirable, witnesse his sparing of oliver cromwell's sones, tho on of them had usurped his throne. his firmnesse in religion was evident; for in his banishment he had great invitations and offers of help to restore him to his croun if he would turne papist, but he always refused it. as for his brother james, now our present king, he is of that martiall courage and conduct, that the great general turenne was heard say, if he ware to conquer the world, he would choise the duke of york to command his army,' such were lander's loyal sentiments, as set down in a private journal a year before his servants and clerks were arrested, and the seizure of his papers threatened. but his protestantism and his jealousy of popery were equally strong. in he notes that the minister of wells in nithsdale had 'turned roman catholic: so this is one of the remarkable trophees and spoils the papists are beginning to gain upon our religion.' a little further on he is indignant at ridicule being thrown on the popish plot 'not only too many among ourselves, but the french, turned the plot into matter of sport and laughter: for at paris they acted in ther comedy, called scaramucchio, the english tryall, and busked up a dog in a goune lik chief justice scrogs.' again, 'a papist qua papist cannot be a faithful subject,' he had, however, no sympathy with the covenanters, a name which he does not use, but he describes them as 'praecise phanaticks.' he did not consider it unjust to bring them to capital punishment, because they denied the right of the king to govern, though on grounds of humanity and policy he was inclined to mercy. in he observes on the execution of alexander home, a small gentleman of the merse, who had commanded a party at the insurrection of bothwell bridge, 'tho he came not that lenth,' 'it was thought ther was blood eneuch shed on that quarrell already ... for they are like sampson, they kill and persuade mo at ther death than they did in ther life.' he couples the roman catholics and presbyterians together as troublesome citizens. 'these foolish people that assume the name of presbyterians have unwarily drunk in these restles principles from the jesuites and seminary priests, who have had a hand in all our troubles and blown the coall.' apart, however, from the political attitude of the covenanters, whom he regarded as disaffected subjects, there is no evidence that he concerned himself with the controversy as to the episcopal or presbyterian form of church government, or that he regretted the re- establishment of presbytery after the revolution. he was not interested in church matters. in he writes, 'the synod of edinburgh' [which was then episcopalian] 'sat down, and not having much else to do, enacted 'o that ministers should not sit in the pulpit, but stand all the time they are in it.'[ ] [ ] a devotional diary, for , apparently one of a series, preserved in the edinburgh university library, no. , and an undated letter in the dick lauder mss. about the election of a 'godly, primitive, and evangelicall pastor,' lead me to think that his views were calvinistic, and not out of sympathy with the presbyterian establishment of the revolution. in the present volume, p. , there is a striking example of his sympathy with the royal prerogative. he says it was believed that the project of union was 'mainly set on foot by his majestie and so much coveted after by him that he may rid himselfe of the house of commons, who have been very heavy on his loines, and the loins of his predecessors.... i confesse the king has reason to wrest this excessive power out of the commons their hand, it being an unspeakable impairment of the soveraintie, but i fear it prosper not.' his repugnance to anything savouring of revolutionary methods, combined with his always candid recognition of merit, appears in his observation when sidney was executed. [sidenote: h.o. p. .] he was a gallant man, yet had he been so misfortunat as ever to be on the disloyal side, and seemed to have drunk in with his milk republican principles.' in december baillie of jerviswood was prosecuted for being art and part in a treasonable conspiracy in england, along with shaftesbury, russell, and others. lauder and sir george lockhart were commanded on their allegiance to assist the king's advocate in the prosecution. the court, after deliberating from midnight till three in the morning, brought in a verdict finding 'his being art and part of the conspiracy and design to rise in arms, and his concealing the same proven,' he was hanged and quartered the same day. fountainhall did not disapprove of his condemnation. he says, 'he carried all this with much calmness and composure of mind; only he complained the time they had given him to prepare for death was too short, and huffed a little that he should be esteemed guilty of any design against the life of the king or his brother, of which he purged himself, as he hoped to find mercy, so also he denied any purpose of subverting the monarchial government, only he had wished that some grievances in the administration of our affairs might be rectified and reformed; but seeing he purged not himself of the rest of his libel, his silence as to these looked like a tacit confession and acknowledgment thereof.' [sidenote: decisions, i. .] [sidenote: h.o. ] [sidenote: h.n. ] [sidenote: h.o. ] [sidenote: decisions, i. .] [sidenote: h.o. .] a still more striking illustration of lauder's political views is afforded by his numerous observations on argyll, who played so great a part in public affairs during the period covered by the manuscripts until his execution in . argyll was not a sympathetic figure to lauder, but, as usual, he does justice to his qualities, and recognises the tragedy of his fate. on the day of his execution he notes, 'and so ended that great man, with his family, at that time.' he had a more cordial personal admiration for a very different statesman, lauderdale, though he often disapproved of his policy. at his death he writes, ' of august, , dyed john maitland, duke of lauderdale, the learnedest and powerfullest minister of state of his age, at tunbridge wells. discontent and age were the ingredients of his death, if his dutchesse and physitians be freed of it; for she had abused him most grosely, and got all from him she could expect.... the duke of york was certainly most ungrate to lauderdale; for lauderdale was the first who adventured in august to advise the king to bring home the duke of york from flanders.'[ ] argyll he deemed to be wanting in magnanimity. in he writes on the subject of a point in a lawsuit being decided in argyll's favour, 'this was my lord president's doing [stair], he being my lord argyle's great confidant. it was admired by all that he blushed not to make a reply upon his father's forfaultor, and whow he had committed many treasonable crimes before the discharge, and to see him rather than tyne his cause, suffer his father rather to be reproached and demeaned as a traitor of new again, by his own advocats,' so fourteen years later he writes, 'whatever was in argile's first transgression in glossing the test (which appeared slender), yet god's wonderfull judgements are visible, pleading a controversie against him and his family, for the cruall oppression he used, not only to his father's, but even to his oune creditors. it was remembered that he beat mistris brisbane done his stairs for craving hir annuelrents, tho he would have bestowed as much money on a staff or some like curiosity.' he was, however, one of argyll's counsel when he was prosecuted for taking the test, with the explanation 'that he conceived that this test did not hinder nor bind him up from endeavouring alterations to the better either in church or state.' argyll, who had escaped, was sentenced to death in his absence, attainted, and his estates forfeited. lauder strongly disapproved of the proceedings. he writes, 'there was a great outcry against the criminal judges, their timorous dishonesty....' these words, 'consistent with my loyalty, were judged taxative and restrictive, seeing his loyalty might be below the standard of true loyalty, not five-penny fine, much less eleven- penny,' ... 'the design was to low him, that he might never be the head of a protestant party, and to annex his jurisdiction to the crown, and to parcel out his lands; and tho' he was unworthily and unjustly dealt with here, yet ought he to observe god's secret hand, punishing him for his cruelty to his own and his father's creditors and vassals, sundry of whom were starving.' lauder speaks of 'that fatal act of the test.' he had no favour for it, and he narrates with glee how 'the children of heriot's hospitall, finding that the dog which keiped the yairds of that hospitall had a publick charge and office, they ordained him to take the test, and offered him the paper, but he, loving a bone rather than it, absolutely refused it; then they rubbed it over with butter (which they called an explication of the test in imitation of argile), and he licked of the butter, but did spite out the paper, for which they hold a jurie on him, and in derision of the sentence against argile, they found the dog guilty of treason, and actually hanged him.' [ ] sir george mackenzie also, who criticises lauderdale's proceedings very freely, pays a fine tribute to one trait in his character, 'lauderdale who knew not what it was to dissemble.'--_memoirs_, p. . [sidenote: h.o. ] [sidenote: h. . .] [sidenote: h.o. .] although lauder considered that argyll had been unjustly condemned in the matter of the test, his opinion about the expedition of was very different. he did justice to his capacity. he writes, 'argile had always the reputation of sense and reason, and if the whigs at bothwell bridge in had got such a commander as he, it's like the rebellion had been more durable and sanguinarie' but as soon as the news of argyll's landing on the west coast came, this is his note, 'argile, minding the former animosities and discontents in the country, thought to have found us all alike combustible tinder, that he had no more adoe then to hold the match to us, and we would all blow up in a rebellion; but the tymes are altered, and the peeple are scalded so severely with the former insurrections, that they are frighted to adventure on a new on. the privy council, though they despised this invasion, yet by proclamations they called furth the whole heritors of scotland,' and so on. 'some look on this invasion as a small matter, but beside the expence and trouble it hes put the country to, if we ponder the fatall consequences of such commotions, we'll change our opinions: for when the ramparts of government are once broke down, and the deluge follows, men have no assurances that the water will take a flowing towards their meadows to fructify them; no, no, just in the contrare.' argyll was discovered and apprehended in his flight by a weaver near paisley, of whom lauder says, 'i think the webster who took him should be rewarded with a litle heritage (in such a place wher argile's death will not be resented), and his chartre should bear the cause, and he should get a coat of arms as a gentleman, to incouradge others heirafter.' it does not appear that this suggestion was acted upon. but while lauder was a supporter of the existing order of government and opposed to all revolutionary plans, his journals disclose that in the state of public affairs he found much matter for criticism and ground for anxiety. in he tells of what will happen 'whenever we get a fair and unpraelimited parliament, which may be long ere we see it.' in he writes sadly: 'though we change the governors, yet we find no change in the arbitrary government. for we are brought to that pass we must depend and court the chancelor, treasurer, and a few other great men and their servants, else we shall have difficulty to get either justice or despatch in our actions, or to save ourselves from scaith, or being quarrelled on patched up, remote and innocent grounds. this arbitrary way lauderdale attempted, but did not attain so great a length in it as our statesmen do now; and they value themselves much in putting the military and ecclesiastic laws to strict and vigorous execution, so that, let soldiers commit as great malversations and oppressions as they please, right is not to be got against them. witness john cheisly of dalry's usage with daver and clerk, in the kings troupe, and sir john dalrymple's with claverhouse.' in the same year he says of james, then duke of york, and monmouth, 'we know not which of their factions struggling in the womb of the state shall prevail.' he regarded these political evils and dangers as beyond his power to remedy. it was not till after he had entered parliament in that he made any public utterance on politics. in the last two years of james's reign the test act was enforced against nonconformist protestants but not against roman catholics. lauder, being then in parliament, considered it his duty to take a part, and he made one or two very moderate speeches, which, although expressed with studious respect to the sovereign, were doubtless highly displeasing to the government. opinions on administration of justice and his contemporaries. influence of studies abroad [sidenote: h.n. .] in the matter of the administration of justice he writes with much less reserve in his journals. the system was bad. the jurisdiction of the privy council, who tried a considerable number of causes, was ill-defined. the judges since the time of charles i. were removable magistrates, entirely in the dependence of the crown. even the ordinary lords of session were not always trained lawyers--lauder's father-in-law, for example, sir andrew ramsay, long provost of edinburgh, became a judge with the title of lord abbotshall. there were besides four extraordinary lords who were never lawyers, and were not bound to attend and hear causes pleaded, but they had the right to vote. at the revolution one of the reasons assigned for declaring the crown vacant was 'the changing of the nature of the judges' gifts _ad vitam aut culpam_, and giving them commissions _ad bene placitum_ to dispose them to compliance with arbitary sourses, and turning them out of their offices when they did not comply.' thus in , when the test act was passed, five judges were dismissed, four ordinary, including the president, stair, and one extraordinary, argyll, and a new commission issued. when the court was so constituted, it could hardly inspire implicit confidence, and the instances are numerous in which lauder complains that injustice has been done, and the principles of the law perverted through the influence of political and private motives. even the most eminent of the judges were not in his opinion clear from this blot. i have quoted one passage in which lauder hints at stair's partiality for argyll. in another case in which argyll was concerned he observes, 'every on saw that would be the fate of that action, considering the pershewar's probable intres in the president.'[ ] in when, as he considered, a well-established rule of law had been unsettled, he writes, 'this is a miserable and pittiful way of wenting our wit, by shaking the very foundations of law, and leaving nothing certain. the true sourse of it all is from the wofull divisions in the house, especially between the president and the advocat [mackenzie], each of them raking, tho from hell, all that may any way conduce to carry the causes that they head, _flectere si neque superos_,' etc. one decision which excited his warm indignation was given in a suit by lord abbotshall against francis kinloch, who held a wadset over the estate of gilmerton, which abbotshall maintained was redeemable. he lost the case. after an extraordinary account of the way in which the decision was arrived at lauder proceeds, 'the chancelor's [rothes] faint trinqueting and tergiversation for fear of displeasing halton (who agented passionately for francis) has abated much of his reputation. the d rub in abbotshall's way was a largesse and donation of £ sterling to be given to halton and other persons forth of the town's revenue for their many good services done to the toune. by this they outshot sir androw in his oune bow, turned the canon upon him, and _justo dei judicio_ defait him by the toune's public interest, with which weapone he was want to do miracles and had taught them the way[ ].... this decision for its strangeness surprised all that heard of it; for scarce even any who once heard the case doubted but it would be found a clear wodsett, and it opened the mouths of all to cry out upon it as a direct and dounright subversion of all our rights and properties.' [ ] lauder was a very young man at the bar when he wrote these strictures on stair. they may be compared with and in part corrected by a passage in sir g. mackenzie's _memoirs_, p. , which also bears on the appointment of incompetent judges. 'lauderdale by promoting four ignorant persons, who had not been bred as lawyers, without interruption, and in two years' time, to be judges in it [the session], viz., hatton, sir andrew ramsay, mr. robert preston, and pittrichie, he rendered thereby the session the object of all men's contempt. and the advocates being disobliged by the regulations did endeavour, as far as in them lay, to discover to the people the errors of those who had opprest them: and they being now become numerous, and most of them being idle, though men of excellent parts, wanting rather clients than wit and learning, that society became the only distributor of fame, and in effect the fittest instrument for all alterations: for such as were eminent, did by their authority, and such as were idle, by well contrived and witty raillery, make what impressions they pleased upon the people. nor did any suffer so much as the lord stairs, president of the session; who, because of his great affection to lauderdale, and his compliance with hatton, suffered severely, though formerly he had been admired for his sweet temper and strong parts. and by him our countrymen may learn, that such as would be esteemed excellent judges must live abstracted from the court; and i have heard the president himself assert that no judge should be either member of council or exchequer, for these courts did learn men to be less exact justiciars than was requisite.' [ ] see appendix iii. it is not to be inferred from such strictures on the administration of justice, a matter on which, as an upright lawyer, lauder was keenly sensitive, that he was an ill-natured critic of his professional brethren or of public men. on the contrary, the tone of his observations, though shrewd and humorous, is kindly and large-minded. he admired lockhart, who was his senior at the bar, and whom he perhaps regarded more than any other man as his professional leader and chief, though he does not escape a certain amount of genial criticism. his enthusiastic eulogy of lockhart's eloquence has been often quoted. in his estimation of mackenzie it is easy to see, that while he doubted the wisdom and humanity of his relentless prosecutions, and while his arrogance comes in for criticism in a lighter vein, respect for his capacity, learning, and industry was the predominating element. it is pleasant to see the constant interest that he took in bishop burnet's books and movements, though they do not appear ever to have met. 'our dr. burnet,' as he calls him. but that only means that he was a scotsman, for he describes ferguson the plotter in the same way. there is nowhere a touch of jealousy or envy in those private journals. the influence of lander's period of youthful travels, his _wanderjahre_, on his future development is seen in various ways. he always kept up his interest in foreign countries and foreign literature. he bought a great many books, a list of which year by year is preserved, and he read them. the law manuscripts, though they embrace a pretty wide field, are confined to domestic affairs. but in the _observes_ there are every year notes and reflections on the events passing in every part of europe, and especially france. there is some interest in the following passage, almost the last sentence in the _historical observes_, 'in regard the duke of brandenburgh and states of holland have not roume in ther countries for all the fugitive protestants, they are treating with pen and other ouners of thesse countries of pensylvania, carolina, etc., to send over colonies ther; so that the purity of the gospell decaying heir will in all probability passe over to america.' the foreign schools of law where he had studied naturally affected his treatment of legal questions. until the publication of the great work of stair, the common civil law of scotland was in a comparatively fluid state, though there were some legal treatises of authority, such as craig's _feudal law_. mackenzie's _criminalls_ was published in , and is often referred to by lauder. many of his contemporaries at the bar had studied like himself in the foreign schools of the roman civil law, and in his reports of cases the original sources are quoted with enviable familiarity and appositeness. torture, astrology, and witchcraft in questions of social ethics, such as torture, and of popular belief, such as astrology and witchcraft, lauder was not much in advance of his age. he frequently mentions the infliction of torture without any comment. when spence and carstairs were tortured with the thummikins, he describes them as 'ane ingine but lately used with us,' and possibly he had some misgiving. the subjects of astrology and witchcraft had an attraction for his inquiring and speculative mind.[ ] he believed in the influence of the heavenly bodies, and more firmly in witchcraft, for which many unhappy women were every year cruelly put to death. these trials at times evidently gave him some uneasiness. but usually, with regard to both topics, his doubts do not go beyond a cautious hint of scepticism tinged with humour. he was fundamentally a religious man, and where he touches on the great issues of life, and the relation of man to his maker, it is in a tone of deep solemnity. but he loves to discourse in a learned fashion on the influence of the stars. 'charles the d,' he says, 'fell with few or no prognosticks or omens praeceeding his death, unlesse we recur to the comet of , which is remote, or to the strange fisches mentioned, supra page , or the vision of blew bonnets, page ,[ ] but these are all conjecturall: vide, supra holwell's prophecies in his catastrophe mundi,' and so on. in 'we were allarumed with ane strange conjunction was to befall in it of planets, saturn and jupiter in leo.... our winter was rather like a spring for mildnes. if it be to be ascrybed to this conjunction i know not.' in the case of comets there was less room for scepticism. in december , 'a formidable comet appeared at edinburgh.' in discoursing on this comet he remarks that dr. bainbridge observed the comet of 'to be verticall to london, and to passe over it in the morning, so it gave england and scotland in their civill wars a sad wype with its taill. they seldom shine in wain, though they proceed from exhalations and other natural causes.' [ ] mr. andrew lang has pointed out to me that lauder's remarks on the identity of the popular legends in france and scotland (_journal_, p. ) are a very early instance of this observation, now recognised to be generally applicable. [ ] p. , i.e. of his ms. for the vision of blue bonnets, compare h.o., p. , and wodrow's _history_, iv. . [sidenote: h.n. .] [sidenote: h.n. .] lauder relates several trials for witchcraft in much detail, and they evidently gave him some uneasiness. some of the women commonly confessed and implicated other persons. in one such case the women, who among other persons, accused the parish minister, said that the devil sometimes transformed them 'in bees, in crows, and they flew to such and such remote places; which was impossible for the devil to doe, to rarefy the substance of their body into so small a matter ... thir confessions made many intelligent sober persons stumble much what faith was to be adhibite to them.' in another case from haddington a woman confessed and accused five others and a man. lauder saw the man examined and tested by pricking. he says, 'i remained very unclear and dissatisfied with this way of triall, as most fallacious: and the man could give me no accompt of the principles of his art, but seemed to be a drunken foolish rogue.' then, according to his custom, he cites a learned authority, martino del rio, who lays bare the craft and subtlety of the devil, and mentions that 'he gives not the nip to witches of quality; and sometimes when they are apprehended he delets it....' 'the most part of the creatures that are thus deluded by this grand impostor and ennemy of mankind are of the meanest rank, and are ather seduced by malice, poverty, ignorance, or covetousness.' but he finds comfort in the pecuniary circumstances of the tempter. 'it's the unspeakable mercy and goodness of our good god that that poor devill has not the command of money (tho we say he is master of all the mines and hid treasures of the earth) else he would debauch the greatest part of the world.' contents of his early journals and accounts it has already been mentioned that lauder's later journals, when he came to chronicle public affairs and legal decisions, though they are full of graphic detail, contain little that is personal to himself. the manuscripts here printed, besides giving a picture of a scottish student's life in france during the seventeenth century, include a narrative of his visits to london and oxford on his return from abroad, his journey by coach and post from london to edinburgh, and various expeditions in fife, the lothians, and the merse, glasgow, and the clyde district, places where he had connections. he travelled on horseback. he kept one horse at this time, which appears in the accounts. considering his evident relish for travelling, it is remarkable that in his long life he never seems to have left scotland after his return in , though many of his more political brethren at the bar were constantly on the road between edinburgh and whitehall. he kept his accounts with great care. there were no banks, and his method was to account for each sum which he received, detailing how it was spent in dollars, merks, shillings sterling and scots, pennies, etc. we have both his accounts during his period of travel, which are included in the first manuscript, and those during the years to . from the latter copious extracts are given, and they are informatory as to the prices of commodities, and the mode of life of a young lawyer recently married. there was settled on him by his father in his marriage contract an annuity of merks (£ ), secured on land. his wife's marriage portion was , merks (about £ ), half of it paid up and invested, the remainder bearing interest at per cent. his 'pension' as one of the assessors of the burgh was £ (sterling). his house-rent was £ (sterling): in one place it is stated a little higher; and he sublet the attics and basement. the wages of a woman servant was nearly £ (sterling). we find the prices of cows, meal, ale, wine, clothing, places at theatres, etc., the cost of travelling by coach, posting, fare in sailing packet to london and so on. [sidenote: h.o. .] [sidenote: genealogical roll.] there are many illustrations throughout lauder's manuscripts of the poverty of scotland, relatively not only to the present time but to england. the official salary of a judge before the union was £ , and it only reached that figure during his lifetime. some time after the union it was raised to £ . on the appointment of the earl of middleton as joint secretary of state for england with sunderland, in place of godolphin, lauder notes, 'this was the dutchesse of portsmouth's doing, and some thought midleton not wise in changing (tho it be worth £ sterling a year, and or years will enrich on), for envy follows greatnesse as naturally as the shadow does the body, and the english would sooner bear a mahometan for ther secretar than a scot, only he has now a good english ally, by marrieng brudnell earle of cardigan's sister.' thus the salary of a secretary of state in england was the same in as it is now, whereas the salary of a scottish judge was only one eighteenth part of its present amount: lauder in his will gives a detailed account of his own investments. sir thomas dick lauder computes that he left about £ , besides the estate of fountainhall, which he inherited. he was, however, the son of a wealthy man. at his marriage before he had any means of his own, , merks were settled by his father, who had several other children, on the children of the marriage (£ sterling, representing a sum many times as large in the present day). money lauder mentions a great variety of coins both in his journal in france and in his accounts after his return home. some explanation of the principal coins may be useful. it is necessary to keep in mind that the value of coins was in a perpetual flux. there were during the century frequent changes in the value of coins relatively even to those of the same country. . _in france._ ( ) _livre_. the livre used by lauder, and called by him indifferently 'frank,' was the livre tournois,[ ] of sous. it was, subject to exchange, of the same value as the pound scots,[ ] s. d. sterling, which greatly simplifies calculations. the £ s. d. french was equal to the £ s. d. scots, and one twelfth of the value of the £ s. d. english or sterling. [ ] the livre parisis contained sous.--major's _greater britain_ (s.h.s.), p. , note. [ ] see pp. and and _passim_. ( ) _ecu, écu blanc_, or _d'argent_, a silver coin worth livres,[ ] or s. sterling, thus of the same value as the english crown, and sometimes called crown by lauder. [ ] the value varied a little, but it was three livres in .-- _mémoires de l'académie des inscriptions et de belles lettres_ ( ), tome , 'me partie, p. . ( ) _ecu d'or_, or _couronne_, golden crown. it was worth about livres sous,[ ] equal to s. d. sterling. (p. , 'i receaved some ll. in golden crowns.') [ ] the exact value in in livres tournois was ll. s. d.-- _mémoires, ut supra_, p. . ( ) _pistole_. a spanish gold coin current in france. its standard value was livres tournois, equal to s. d. that fairly corresponds with a proclamation in ireland in fixing it at s. littré (_dict._ s.v.), states the value of the coin a good deal higher, though he gives the standard as above. but its value gradually increased, like that of other gold coins, and in later irish proclamations is much higher. the british gold coins _jacobus_ and _carolus_ were also used by lauder in france, and are explained below. . _in scotland and england._[ ] [ ] see cochran patrick's _records of the coinage of scotland_ ( ); ruding's _annals of the coinage_ ( ); and _handbook of the coins of great britain and ireland_ in the british museum, by h.a. grueber ( ); burns, _coinage of scotland_. ( ) _jacobus_ ( ) _carolus_. james vi. on his accession to the throne of england, with a view to the union of the kingdoms, issued a coinage for both countries, which was in this sense uniform that each scottish coin was commensurable and interchangeable with an english coin. the ratio of the scots to the english £ s. d., which during centuries was always becoming lower, was finally fixed at to . the english s. and scots l. pieces of equal value now issued were called the unite. the double crown or s. piece was the scots l. piece, the crown the scots l. piece, and so on. the unite was so called from the leading idea of union, just as the double crown had the legend, _henricus rosas regna jacobus_. as henry vii. united the red and white roses, james was to unite the two kingdoms. it seems probable that james intended the unite as a s. or pound piece to be the standard and pivot of the coinage of both countries, as the pound or sovereign has now become. this enlightened policy, though it had lasting effects, soon broke down in detail. in england the shilling proved too strong for the unite, and in scotland the merk maintained its hold. to prevent the exportation of gold, the value of the unite of grains[ ] was raised to s. in , though the king had himself proposed rather to lower the weight of silver. that caused confusion, 'on account of the unaptness for tale' of the gold pieces at their enhanced value, and a lighter s. piece of grains was issued in for england only, known as the laurel piece, from the wreath round the king's head. in scotland the original unite remained, and was sometimes called the merk piece, to which value it roughly corresponded. it was repeated in the coinage of charles i., the last sovereign who coined gold in scotland prior to the revolution. thus it was the only scottish s. sterling piece. charles i.'s unite or double angel ( s. piece) for england was of the same lighter weight as the laurel. in the value of the gold coin was again heightened, the old unite to s. d., and the lighter english unite to s. d. [ ] the weights are given in round numbers. the above information is necessary in order to identify the two gold coins which lauder used. he generally calls the larger the jacobus and the smaller the carolus. at p. the one is mentioned as 'the scotes and english jacobuses, which we call pound peices,' and the other as 'the new jacobus, which we cal the shiling sterling peice.' at p. he speaks of ' caroluses, or shiling peices,' so that the new jacobus and the carolus are the same. while there was only one weight of scots gold piece of the issue value of s. sterling, in england during the reigns of james i., charles i., and charles ii. there were four: , the sovereign of james i. ( grains); , the unite or double angel of james ( grains), the same as in scotland; , the laurel of james, the unite of charles i., and the broad of charles ii. ( grains); , the guinea[ ] of charles ii., first struck in ( grains). now lauder's larger coin was a scots or english jacobus, therefore it is the unite of james vi.; and his smaller coin is called both a carolus and a new jacobus, therefore it is the coin of grains. the two pieces are mentioned in a proclamation by the privy council in heightening certain coins.[ ] [ ] once mentioned by lauder, p. . [ ] this table may be compared with louis xiii.'s valuation of some of these coins (p. ). the scots piece there mentioned with two swords, and the legend _salus_, etc., is no doubt the sword and sceptre piece of james vi. ( - ). but the issue value of the whole piece, not the half piece, was . scots. £ s. d. scots. £ s. d. scots. formerlie current at now to be current at the double angel [ ] . . . . the single angel . . . . the dager peice . . . . the scots ryder . . . . the new peice[ ] . . . . the halfe . . . . the quarter . . . . the rose noble, scots and english. . . . . the hary noble . . . . [ ] lauder's jacobus. [ ] lauder's carolus. ( ) _dollar_. in lauder's accounts the reader is struck by the prominent position of the dollar. while debts and obligations were calculated in pounds scots or merks, dollars supplied the currency for household and other payments, just as pounds do at the present day. they were foreign coins of various denominations and various intrinsic value, but of inferior fineness to the scots standard of silver money, which was eleven penny fine--eleven parts silver to one part alloy. they passed current for more than their intrinsic value, and the native silver money was withdrawn from the country. all through the reigns of charles i. and charles ii. the subject gave great concern to the mint, the parliament, the privy council, and bodies with commercial interests like the convention of 'burrowis.' in the privy council issued a proclamation 'considering the greit skarsitie of his majestie's proper coynes ... occasioned by the frequent transport theirof and importing of dollours in place of the same,' prohibiting the receipt of any dollars for coal or salt after st november next to come. 'that in the mean tyme the maisters and owners of the coalhewes and saltpans may give tymous advertisement to the strangers trading with them for coal and salt that they bring no dollours with them for the pryce of the salt and coal,' and that merchants exporting bestial or other commodities to england are to 'make return of the pryces' not in dollars, but either in h.m. proper coin or in the following foreign coins, the value and weight of which is fixed by the proclamation: spanish pistolet, french crown, rose noble, half rose noble, quartisdiskue, single ryall. the proper method of dealing with the difficulty was matter of great controversy. in george foulis, master coiner, says in a memorial, 'in the first it is to be considerit that _the most pairt of the moneys presently in scotland is only dollouris_. 'secondlie, these dollouris are not all alike in wecht, some wheirof are drops wecht, some - / and many others lesser in wecht. 'thirdlie, they are different in fineness, some , some - / , others baser. the best drop and / fineness will not answer to the king's money in wecht or fynness to s. scots.' the best of these dollars was the rex or rix dollar (reichsthaler, dalle imporiale). in the reign of charles i. the baser dollars which gave most trouble to the authorities were the dog dollars and the cross dollars. in the reign of charles ii. we hear more of the leg dollar, which approached the rex dollar in value, and had got a pretty strong footing. on th january , the privy council issued a proclamation on the narrative, 'forasmuch as there hath been of late imported into this kingdom great numbers of those dollars commonly called leg dollars haveing the impression of a man in armes _with one leg _and a shield ... covering the other leg ... which does usually pass at the rate of s. scots money, and seeing that upon tryall of the intrinsick worth and value thereof they are found to fall short of the foresaid rate, and that in the united provinces where the forsaid dollars are coyned, the passe only at the rate of crosse dollars, therupon the king's mtie with advice of his p.cs. doth declare that (the rex or bank dollars now passing at s. scotts) the true and just value at which the forsaids legs dollars ought to passe and be current in this kingdome is s. scotts money....' thus we get the authorised value of these dollars at the period of lauder's accounts. the accounts themselves show that the current value varied indefinitely, and is sometimes different in two consecutive items.[ ] [ ] with regard to the etymology of 'leg,' mr. hallen in his introduction to the _account book of sir john foulis of ravelston_ (s.h.s.), p. xxxiii, gives some strong and perhaps convincing reasons in favour of liége. but the descriptions in the proclamation above quoted, and the fact that lauder sometimes calls them 'legged,' seem to show that the popular etymology in scotland was the man's leg on the coin. charles ii. struck four merk-pieces at the issue value of s. d. scots in two issues, the first in , the second in - . the second, and only the second issue, came at some later but unknown period to be known to numismatists as dollars. but i do not think there is any reason to suppose that lauder called those pieces dollars. the accounts are in the period of the first issue, and lander's dollar was of higher value. probably his dollars were all foreign coins, generally rex dollars, as he often calls them. when they are leg dollars, he appears always so to distinguish them. ( ) _the merk_, s. d. scots, was raised in value by james vi. to - / d. sterling, to make it interchangeable with english money. he coined none after his accession to the throne of england, and probably intended that no more should be coined. but the merk had too strong a hold in scotland, and half merks were struck by charles i., and various multiples and parts of merks by charles ii. at the old issue value of s. d. the merk. on the other hand, in parliament 'cryed up' the s. scots piece--equal to the english shilling--to one merk; and in the britain crown or . scots piece is officially described as 'known as the five merk piece,' though its issue value was only five shillings. this illustrates the confusion and uncertainty of the relative value of coins, of which parenthetically two other examples may be given. on th june lauder notes the receipt of his year's salary as one of the assessors for the burgh, 'being lb. scots, which is about merks,' whereas with the merk at s. d. (the standard value), lb. is exactly merks. in the same way he constantly states the same salary indifferently at . scots or £ sterling, whereas . scots ought to have been equal to £ , s. sterling. ( ) _shilling_. lauder applies the name without distinction to the english shilling, s. scots piece, which at page he calls our shilling, and to the shilling scots. the context generally shows which he means. ( ) _groat_. lauder's groat is the english groat of four pence, sterling. the groat scots of less value had not been coined for a century. ( ) _penny_. as in the case of the shilling, lauder uses the name indifferently for english pence and pennies scots, but more often english. such coins as testoons, placks, bodles, bawbees and turners, do not appear in his accounts, but some of them are casually mentioned in the text of the mss., and are explained in footnotes. language and spelling no alteration has been made on the text of the mss. except the substitution of capital letters for small ones, where capitals would now be used. in this matter lauder's practice is capricious, and it may safely be said that it was governed by no rule, conscious or unconscious. he spells the pronoun i with a capital, and usually begins a sentence with one. but names of persons and places are very often spelt with small letters. the use of capitals was not yet fixed, as it is now, and the usage of different languages, such as english, french and german, as it came to be fixed, is not identical. some changes in the punctuation have also been made in transcription for the sake of clearness, but the punctuation, which is scanty, has not been systematically altered. in the mss. some single words have been erased, or rubbed off, at the top and the foot of the page. the blanks are indicated, and as a rule, but not quite invariably, explained in footnotes. mss. x and h are printed entire, with two unimportant omissions, one in each, which are noted and explained, and as regards ms. h, with the exception of some detached pages of accounts, and a catalogue of some books. of these it was thought that the appendix contains enough. from ms. k only extracts are given. the remainder contains more accounts, and a further catalogue of books, without the prices, and other memoranda and reflections, now of no interest. the spelling is to a large extent arbitrary.[ ] it is less regular than, for example, the contemporary acts of parliament, but more regular than the letters of some of lauder's contemporaries, in high positions.[ ] a word is often spelt in different ways on the same page. there are, however, many constant peculiarities, some of which may have a linguistic interest, thus 'laugh' 'rough' 'enough' 'through' are spelt with a final _t_. the use of a final but silent _t_ mr. mackay in his introduction to pitscottie,[ ] p. cxl, says is a distinct mark of scots of the middle period. 'voyage,' 'sponge,' and 'large' are sometimes spelt without the final _e_. 'knew,' 'slew,' 'blew' are spelt 'know,' 'slow,' 'blow.' 'inn' is spelt 'innes.' 'see' is always spelt 'sy' or 'sie,' and 'weigh,' 'wy.' but these are only examples, taken at random. 'one,' 'off,' 'too,' 'thee' are spelt 'on,' 'of,' 'to,' 'the,' a snare to the unwary reader. 'v' and 'w' are frequently interchanged. [ ] lauder's french in the journal in france is full of mistakes, both of grammar and spelling. he was only learning the language. [ ] cf. bishop dowden's introduction to lauderdale correspondence (s.h.s.), _miscellany_, vol. i. p. . [ ] _historic and chronicles of scotland_, by robert lindesay of pitscottie (scottish text society, ). lauder's language is idiomatic, and he uses many scottish words which were not common in the written literary language of his time. a few of these words are now rare and even difficult to trace.[ ] most of them are quite intelligible to persons who have been accustomed to hear lowland scots spoken, but for the sake of other readers i have been convinced that occasionally interpretation is not superfluous. [ ] one of them is 'dron,' p. . with reference to the words '_ arbres_,' in the description of the mail at tours, p. , mr. a. lang has suggested to me that _arbres_ might be a term in the _jeu de mail_. mr. h.s.c. everard has kindly sent me the following quotations from joseph lauthier's book on the game ( st ed., ): 'c'est quand deux ou plusieurs jouent à qui poussera plus loin, et quand l'un est plus fort que l'autre, le plus foible demande avantage, soit par distance d'arbres, soit par distance de pas.' 'on finit la partie en touchant un arbre ou une pierre marquée qui sert de but.' if certain trees were marked as goals, that would be a better explanation than the one given in the note. the thanks of the society and my own are due to the owners of the mss. i am grateful to sir t.n. dick lauder and sir william fraser's trustees (sir james balfour paul, lyon king of arms, and the late mr. james craik, w.s.), for intrusting me with their mss. for a long time, which made my work much easier; and more satisfactory. the society is also indebted to mr. david douglas for the use of his transcript of ms., and for the first suggestion that the ms. should be printed. by the kindness of lady anne dick lauder four portraits in her possession are reproduced. . lord fountainhall, in ordinary dress, a different picture from the one in robes published by the bannatyne club. . his first wife, janet ramsay, an attractive picture, which suffers in the photographic reproduction. . sir john lauder, fountainhall's father. . sir andrew ramsay, lord abbotshall, his father-in-law. i have received constant assistance and advice from mr. t. graves law, librarian of the signet library. i have also to thank sir arthur mitchell, who read some of the proofs, and gave me valuable suggestions, mr. j.t. clark, keeper of the advocates' library, for ready help on many points, mr. h.a. webster, librarian of edinburgh university, mr. w.b. blaikie, of messrs. t. and a. constable, and mr. alex. mill of the signet library, who in transcription and otherwise has given me efficient and obliging assistance. i am particularly grateful to miss cornelia dick lauder, for the interest which she has taken in the book, and the help which she has given me in obtaining the necessary materials for it. d.c. edinburgh, _march_ . i journal in france - i journal - . [the first leaves of the manuscript are wanting. lauder left edinburgh on th march , travelling by berwick and durham, and arrived in london on st april. see page .] * * * * * we saw also the fatall chair of scotland wheirin our kings for many ages used to be croune. i fand it remarkable for nothing but its antiquity, it being thought to have come from egypt some , years ago. i went in the nixt place to the tower, wheir on our entrin according to custome i left my sword. heir first we saw a very strong armory for weapons of all sorts, as many as could furnish , men; we saw great field pieces of ordinance as also granadoes; we saw also many coats of maill, and among the rest on[ ] very conceity all joined like fines of fisches on to another, which they informed me came as a present from the great mogull who comands over kings. the[re] ware hinging their as trophees several peices of armour that they had taken from the french in their wars wt them. their we saw the huge armour of john of gaunt, duke of lancaster. we came nixt and saw the honors, wheir we saw the sword and seipter of honor; the croun was not their, by reason the parliament had use for it at whitehal. we saw also a most rich globe of christal beset wt most precious diamonds. we came in the d place to sie the lyons, the leopards, the aigle, and a long skine of a snake. [ ] one. lauder's usual spelling. we arrived london on saturday of april, we left it on thursday of april; about a cloack we took boat, and landed at gravesend about a cloack at night, in which space we ware so merry in singing never but some of us singing and sometymes all, that the rowers protested that they never carried so merry a company doune the thames. on the way we was tuise stoopt by men of war to know whither their ware any seamen in it, that they might be sent to the fleet: at which we alleadged captain blawprine[ ] g. moor was much troubled, for he was exceeding skipper like. to morrow tymously we tooke post about a cloack, and reach dover about one; yet we got not passage til ij at night. what a distressed brother i was upon the sea neids not hear be told, since its not to be feared that i'l forget it, yet i cannot but tell whow[ ] mr. john kincead and i had a bucket betwixt us strove ... who should have the bucket first, both being equally ready; and whow at every vomit and gasp he gave he cried gods mercy as give he had bein to expire immediately. [ ] compare blawflum (jamieson), a deception. 'prine' may be prein, pin, a thing of little value. moor is playfully described as captain or skipper. [ ] how. about in the morning we landed on france the land of graven images. heir we divided into companies: joseph marior wt one mr. colison went into flanders; mr. dick moor and kinkead went to deip and so to roan. mr. strachan, hamilton, and i stayed in calais til monday, of april, and joined wt the messenger for paris one pierre, a sottish fellow, yet one that entertained us nobly; their went also wt him besides us on mr. lance normand, newwarks gouernor and a son of my lord arreray or broll,[ ] a very sharp boy wt his governour doctor hall. in our journey we passed severall brave tounes as bulloigne, monstrul, abewill, poix, beauveaus, wheir is the most magnificent church i had ever then sien. we chanced to lay a night at a pitty vilage called birny, wheir my chamber was contigue to a spatious pleasant wood that abounded wt nightingales, small birds to look upon; who wt the melodiousnesse of their singing did put sleip quit from me. the great number we meit of souldiers all the way begat in us great fears of wooling [robbing],[ ] yet it pleased god to bring us most safely to paris of april at night. mr. strachan led mr. ham[ilton] and me to one turners, a scotsman, wheir i lay that night, and wheir i recountred wt several of our countrimen, as patrick mein, mr. castellaw, mr. murray, mr. sandilands, a man wonderfully civil, mr. wilky, mr. gibson, and mr. colt. the day following i made my addresse to f. kinloch, and brought wt me a letter containing my safe anivall to go in his packet for scotland, i not having written any thing since i wrot at my parting from london. i delivered him also my fathers letter, b.[ ] kinlochs letter, and thomas crafurds, wt the bill of exchange; my fathers is as followeth: [ ] roger boyle, - , first baron of broghill and earl of orrery, m.p. for edinburgh, - , member of cromwell's house of lords. he was succeeded by his son roger, - . [ ] 'robbing' interlined. 'wooling' may mean 'shearing,' so robbing. [ ] bailie. _edinborough, march_ , . sir,--the bearer heirof, my sone, inclining to study the french tongue and the laws, i have theirfor thought it expedient to direct him to you, being confident of your favour and caire, intreating[ ] ... recommendation by a few lynes to one monsieur alex.[ ] ... [pr]ofessor of the laws at poictiers to which place i intend he sould go: as also to place him their for his diet in the most convenient house but especially wt on of our profession and religion. he hes a bill drawen on you wt a letter of advice and credit; which i hope ye will obey. i have bein desired by severalls to have direct him to our mr. mowat and have bein profered to cause answer him what money he sould neid for shiling the frank: but i inclined rather to send him to you (whilk i hope ye will not take as trouble) tho i have payed thomas crafurd shiling.[ ] what he stands in neid of during his abode i hope ye wil answer him, and upon your advertisment and eis receipt i sal either advance or pay the money upon sight. i most without vanity or flattery say hitherto he hes not bein inclined to any vice or evill way and i hope sall so continue. i know not positively what may defray his charges in his studies, diet, and otherwise, but i conceive about or hundred franks a year may do it; whowever i entreat you let me hear from you what ye think wil do it and what ye will take for the frank. so being confident of your cair heirof, and in doing wheirof ye sall very much oblidge him who is, sir,--your reall friend, john lauder. [ ] page torn. [ ] see introduction, p. xlviii. the bill of exchange is as followeth: _edinburgh, march _, for livres t.l.[ ] sir,-- dayes after sight of this my first bill of exchange (my not being payed) please pay to mr. john lauder or his order livres tl value receaved heir from his father b. john lauder. make punctuall payment and please it to account, as by the advice of your humble servant, thomas crafurd. for mr. francis kinloch, merchant in paris. [ ] see introduction, p. xlii. francis having read thir, out of his kindnese would suffer me to stay no wheir but in his oune house, wheir i stayed all the space i was at paris, attended and entertained as give i had bein a prince. while i was heir i communicated my intentions and directions for going straight to poictiers to these countrymen fornamed, who ware all unanimously against it, not sieing what good i could do their since the colledge was just upon the point of rising; they conceived theirfor that i might imploy my tyme much better either in orleans at mr. ogilvyes house, or saumur at mr. dualls; for in either of these i could have a richer advantage in reference to the language, both because its beter spoken their [then at] poictiers, as also fewer scotsmen their then in poictiers. i sould also have for a pistoll[ ] a month a master to give me a lesson on the instituts once a day, which i could not so have at that rate at poictiers. thus they reasoned, and i fand mr. kinloch to be of the same mind. i considering that it was not expedient for me to step one step wtout direction from my father, i wrot the vednesday following, of aprill, acquainting him wt it; and that i sould attend his answer and will at orleans. [ ] see introduction, p. xliii. while i was at paris i went and saw the new bridge, and henry his stately statue in brasse sent as a present by the king of denmark. i was also at the place royalle wheir stands lewis the , this king of france his father, caused to be done by that great statesman in his tym, cardinall mazarin, whom he left tutor to the young king during his minority. i was also at the palais cardinal and that palais wheir the lawyers pleads. the choops[ ] their have great resemblance wt those in the hie exchange at london. i saw also that vast stupendious building, the louwre, which hath layd many kings in their graves and yet stands unfinished; give[ ] all be brought to a close that is in their intentions i think the grand seigniours seraglio sall bear no proportion to it. all we saw of it was the extrinsecks, excepting only the king's comoedy house which the force of mony unlocked and cost open; which truly was a very pleasant sight, nothing to be sein their but that which by reason of gilding glittered like gold. but the thing that most commended it was its rare, curious, and most conceity machines: their they had the skies, boats, dragons, vildernesses, the sune itselfe so artificially represented that under night wt candle light nothing could appear liker them. [ ] shops. [ ] give for gif, if. the day before i left paris, being according to the french account the of may, according to the scots the of aprill, mr. kinloch wt his wife and daughter magdalen took mr. mein, mr. dick,[ ] mr. moor and me in coach leagues of paris to ruell to sie the waterworks their, which wtout controll be the best of any about paris, by the way we passed thorow one of the pleasantest woods or parks that ever my eyes did sie, called the park of boloigne. we saw madrid also, but not that in spaine; the occasion of the building wheirof was this: francis, one of the kings of france, became spaines prisoner, who demanded ...[ ] ransome milions. the french king payes him , and ...[ ] promises him upon the word of a king that having once lifted it in france he sould come in person to madrid and pay it. thus vinning home he caused build a stately house a litle from paris, which he named madrid, and so wrot to the spaniard that he had bein at madrid and payed what he owed, according to that, '_qui nescit dissimulare nescit regnare_' we saw also mount calvary, which the deluded papists will have to be the true representative of that calvary wheir our saviour suffered: its situate at that same distance from paris that the true's from jerusalem, of that same hieght, and so in all the circumstances. [ ] this may be james dick, who was born in the same year as lauder, , afterwards sir j. dick of priestfield, lord provost of edinburgh, and created a baronet. [ ] page torn. thus we come to ruell, wheir so many gallant sights offered themselfes that i know not wheir to begin; first the pleasant ponds abounding wt fishes of divers sorts, as carps, picks, etc., comes to be considred. but the rich waterworks are the main commendation of the place. it is not to be forgotten whow finely the fellow that showed us them, and set them on work by his engines did wet mr. dick, and followed him in the litle house (the grotto) whethersoever he could stir. the thing that mainly moved my admiration was the hie ascendance of the water: what secret hidden power could carry the water clean contrary to its natural inclination which is to deschend, as every other heavy body, so hy that in some of them a man wt a speir could not reach its top. the most wonderfull thing ever i saw is the infinit art that some curious painter hath showen on a large timber broad, standing in a corner of the yard: a small distance from it their is a revell put up which makes it appear the more lively, so that we win no nearer then the revell would let us. at this distance ye would think ye saw the heavens thorow the wal on the other syde of it, so wonderously is the blew skie drawen; so that bring me a man without acquainting him wt the devce he sal constantly affirme he sies the lift on the other syde of the wall. on the same broad beneath the skie on the earth, as ye would think, is drawen a woman, walking thorow a montain in a trodden path, the woman, the mountain, the way, so cunningly drawen that i almost thought i saw a woman walking on the other syde of the wall over a hil throw the beaten rod. i constantly asserted also that the broad was wery inaequall and that it had many utraisings[ ] because i seimed to sie as lively as ever i saw any thing pillars coming furth and standing out wt a great deal of prominency from that which seimed to be the skie, that at least i judged it halfe a ell farder out; yet it was but a mistake; for its certainly knowen that the broad is as smooth and aequall as can be. we also went out wtout the yeard to the back of the wall, wheir by the back and sydes of the broad we discerned it to be of such thinnesse that it could not admit any utcomings, as these pillars seimed to us. [ ] outraisings, reliefs. in our coming home from ruell we went in and saw the king's brother the duke of orleances house, sainct low: it hath also a wery pretty yard, wheir we saw many water-works also, and in the pond several swanes. we saw also many orange trees, some of which had their ripe fruit, some very green, some betwixt the , according to the natur of the orange tree. the house we fand wery rich; many brave portraicturs; our kings portraitur is their better done then ever i saw it in my life. the partition that divides one roome from another is of strange glasse that showes a man his body in some of them tymes, so that i saw in one of them john lauders. after this we came back to paris, on the morrow after, being the of may according to the french account, the of april according to the scots. i joined wt the messenger for orleans severall accompanieng me to my horse, their went englishes alongs also, one of which was the doctor whom his cometicall face told to have the clap. we came to orleans may at night. i straight directed my course to mr. ogilvyes, which i did that i might get the better accomodation knowing that the doctor also intended their. i delivered him the letter i brought him from f. kinloch, which was as followeth: mr. john ogilvy. _paris, may , ._ sir,--thesse are to accompany the bearer heirof, mr. john lauder, whose father is my wery much honored friend, his mother my neir kinswomen, and himselfe a very hopful youth inclined to vertue every way. he intends to stay som tyme wt you, theirfor i do earnestly recommend him to your best advice and counsell in what may concerne his welfare to assist him theirin, in all which i recommend him to you againe and againe as give he were my oune sone, assuring you that what favor or friendship you sall be pleased to show him, i sall ever acknowledge it as done to my selfe. he intends to improve his tyme in the study of the laws, and having got some knowledge of the french tongue, he intends for poictiers some moneths hence. help him to a master that may come to him once a day and give him a lesson on the instituts; and for the language i beseich you assist him in it. if their be no accommodation for him at your house, i pray you place him wheir he may be weil used and in good company. let him not want what he stands in neid of for monyes or other necessaries, all which i sall make good to you thankfully upon advice from you. thus recommending him to your care as my oune. kissing your hand wt madam ogilvyes, your daughters, and al your families, i rest your real friend and servant, francis kinloch.' at my arrival heir i fand in pension wt him the mr. of ogilvy[ ] wt his servant, a very civil lad[ ] james hunter, young thirlestan[ ] wt his man patrick portues: besides them also their ware english, french, and germans. the city (called aurelia ather _a bonitate auroe_, or from aurelian the emperor who keipt a station heir) i fand to be as big as edinborough laying wt it also the next greatest citty of scotland. i discovered likewise the city to abound wt such a wast number of lame folk, both men and women, but especially women, even many of them of good quality, that i verily beleive their are more lame women their at orleans then is in all scotland or much of france. enquiring what the reason of this might be, the general woice was that it proceeded from the nature of the aurelian wine, which they alledge to have such influence on the sperm of man as to produce a creature imperfect in their legs. others sayd it was the purity of the air about orleans whence the city has the name of aurelia. but what influence the air can have in this point is hardly explicable. monsieur ogilvy more rationally informed me that he took it to be a race and generation of peaple who transmitted it hæreditarly to their posterity, for which i meit after[ l] a wery strong presumption: i saw a mother lame, not only the daughters lame, but in the very same faschion that the mother; and this i saw confirmed seweral tymes. [ ] apparently david, afterwards third earl of airlie. his grandfather was already dead, and he is afterwards called lord ogilvy in the journal. [ ] probably the servant, though the punctuation is as in the text. [ ] thirlestan, probably thurston in east lothian, belonging to the family of hunter. [ ] meit after, i.e. met afterwards. just the morrow after my arrival was keipt very solemly by the whole toune in remembrance and commemoration of the valiant maid of orleans, who, when the english had reduced al france excepting only orleans to their obedience, and ware so fair for orleans that they gained to the mids of the bridge over loyer, most couragiously animated the citizens and beat them shamelesslie back: for which when the english got hir in their power they brunt hir at roan quick. the ceremony we saw consisted of a procession partly spiritual or ecclesiastick, partly civil or temporal. to make the spirituall their was their all that swarm of grassopers which we are fortold sould aschend out of the bottemlese pit; all these filthy frogs that we are fortold that beast that false prophet sould cast out of his mouth, i mean that rable of religious orders within the body of that apostolical and pseud-apostolicall church of rome. only the jesuits was wanting; the pride of whose hearts will not suffer them to go in procession with the meaner orders. in order went the capuchines, then the minimes, which orders tho they both go under the name of cordeliers by reason of that cord they wear about their midle, on whilk cord they have hinging their string of beads, to the end of their string is hinging a litle brazen crosse, tho also they be both in on habit, to wit long broun gowns or coats coming doune to their feet, a cap of that same coming furth long behind just like a unicornes horne, tho the go both bar leged only instead of shoes having cloogs of wood (hence when i saw them in the winter i pitied them for going bar leged; on the other hand, when i saw them in the summer i pitied them that they ware necessitat by the first institution of their orders never to quate their gounes which cannot be but to hot for them; yea, never to suffer any linnen only wooll to come neirest their skine), notwithstanding of this its easy to distinguish them by the clerical tonsure, you sall never find a capuchin but wt a very liberall bard: for the minime he most not have any. again in their diet and other such things they differ much: the minime most renounce for ever the eating of fleche, their only food is fishes and roots; hence erasmus calles them fischy men (homines piscosos). not so wt the capuchines. their be also many other differences that tyme most discover to me. thir orders our bucanan means when he names _nodosa canabe cinctos_.[ ] to returne to our purpose their came also the dominicans or jacobins, which are but one order having names; then came the chartereus or carthusians: both which go in a long white playding robe. only the jacobins hood is black; the carthusians is white: then followed the franciscans, who now are called recollects because being al banished france by reason of their turbulency and intromitting wt the state (of which wery stamp they seim to have bein in the tyme of our james the , when he caused buchanan writ his franciscani against them) by the prævalent faction the pope had in france then, they were all recalled, so that france held them not so weil out as venice do'es the jesuits. then came the peres de l'oratere, who goes allmost in the same very habit wt the jesuits. then cames the augustines wt their white coat and a black gown above, after them came the moncks of the order of st. bennet or the benedictin friers, who goes in a white coat indeed, but above it he wears a black cloak to his heels, wt the jesuits he wears also a hat as they do. then came the chanoins of the church of sainct croix in their white surplices above their black gounes and their nooked caps. tyme sould feel me ere i could nombair over all orders, but thir ware the most principall, each of which had their oune crosse wt the crucifix carried by one of their order. this much for the ecclesiastick procession. after them came the tounes men in armes; in a knot of whom went a young fellow who represented the maid of orleans, clad in the same very habit, girt wt that sam very sword wt which the maid beat the englishes. this went thorow all the toun. [ ] at line of buchanan's _franciscanus_ is this passage: 'o sanctum festumque diem! cum cannabe cinctus obrasumque caput duro velante cucullo,' etc. during my abode heir, about the end of may, i had occasion to sie another custome of the city. at that tyme of the year the tounes men put upon the other syde of the bridge a pole as hie as the hiest house in edenborough: on the top of it they fasten a bird made of brasse at which they, standing at the feet of the pole, shoot in order, beginning at the better, wt gunes, having head peices on their heads, to sie who can ding it doun. i went and saw them shoot, but no man chanced to shoot it doun that year i was their. during the tyme i was heir their was so many fests or holy dayes that i werily think the thrid part of their year is made up of them. the principal was fest de dieu, on which, such is the fury of the blinded papists, the hugonots are in very great hazard if they come out, for if they kneel not at the coming by of the hosty or sacrament they cannot escape to be torn in peices; whence i can compare this day to no other but that wheir the pagans performed their baccanalian feasts wheir the mother used to tear hir childrens. the occasion of the institution of this day they fainge to be this. the virgin appeared say they to a certain godly woman (who wt out doubt hes been phrenetick and brain sick), and made a griveous complaint that she had dayes in the year for hir, and god had only the sabath: this being devulged it was taken as a admonition from god, whence they instituted this day and ordainned it to be the greatest holy day in the year. the most part of all the city was hung with tapistry, espescialy the principall street which goes straight from the one end of the toune to the other, which also was covered all above in some parts with hingings, in other wt sheits according to the ability of the persones; for every man was obliged to hing over against his oune house, yet the protestants ware not, tho john ogilvy was also called before the judges for not doing it; yet producing a pladoyes[ ] in the hugonets faveurs they had nothing to say against it; yet they caused the wals of his house to be hung wt publick hingings that belonged to the toune. for to sy the procession i went wt the other pensioners to a place wheir when all others went to the knees, to wit, when the hosty came by, we might retire out of sight. i retired not so far as they did, but boldly stood at a little distance that i aen might sy it the better. this procession was on the of june, a little after followed sainct barnabas day. then came mid-summer even, on whiclk the papists put on bonfires for john baptists nativity. the day after, called s. jeans day, was keiped holy by processions. [ ] plaidoyer, pleading, legal argument. on the of july was s. pierres day, on which i heard a chanoin preach in s. croy upon piters confession, thou art the sone of the living god, very weill, only he endevored to have pierre for the cheife of the apostles because forsooth in the of mathew, wheir al the apostles are named, he finds piter formost. that i might have a full survey of the toune i went up to the steeple of st. croy, which truly is on of the hiest steeples i saw abroad; from it i had a full visy of the toune, which i fand to be of that bigness specified; then the sight of the country lying about orleans, nothing can be pleasanter to the eye. we saw also the forest of orleans which environs the northren syde of the city as a halfe moon: in it ar many wild beasts and particularly boors; one of which, in the tyme of wintage, give it chance to come out to the wineyards wheir they comit great outrages, the boors or peasants uses to gather to the number of or from all the adiacent contry wt dogs, axes and poles to kil the boor. during my abode heir i went also to the jesuits colledge and discoursed wt the praefectus jesuitarum, who earnestly enquiring of what religion i was, for a long tyme i would give him no other answer but that i was religione christianus. he pressing that he smeled i was a calvinist, i replied that we regarded not these names of calvin, luther, zuinglius, yea not their very persons, but in whow far they hold the truth. after much discourse on indifferent matters, at our parting he desired me to search the spirits, etc. i went and saw the gardens of the minims, the jacbins, the carthusians, and the peres de l'orat.[ ] [ ] _oratoire_. many contrasts ha'es bein betwixt j.o. and i. laboring to defend presbytery and the procedures of the late tymes. during my abode heir moneths i attended the sale de dance wt mr. schovaut as also mr. le berche, explaining some of the institutions to me. john was my mr. of language. a part of the tyme that i was heir was also the admiral of holland, obdams sone, who wt the companions carried himselfe marvelously proud. he and they feed themselfes so up wt the hoop of the victory that they præpared against the news sould come of the engleshes being beat a great heap of punchions of wine wheir wt they intended to make merry, yea as i was informed to make loyer run wt win. but when the news came the hollanders was beat, that his father was slain,[ ] he and his sunk away we know not whither. that ranconter that happened betuixt him and sandwichs viceadmiral of england sone coming from italy (which the mr. of ogilvy getting wit of from the germans came runing to my chamber and told me) is very remarkable. the first bruit that came to our ears of that battle was that the englishes had lost, the duc of york was slain. when the true news came the hollanders sneered at it, boasting that they would equippe a better fleet ere a night. the french added also the pace, vilifieng and extenuating the victory as much as they could, knowing that it was not their interest nor concernment that the king of england sould grow to great. it was fought in the channel eagerly for dayes; and tho at a good distance from calice, yet the noice of their canon mad it al to shake. [ ] admiral opdam was blown up with his ship in the battle near lowestoft, when the dutch fleet was defeated by the english, commanded by the duke of york, th june . some weeks that i was heir the heat was so great that afternoon (for then it was greatest) i would not have knowen what to have done. it occasioned also several tymes great thunders and such lightenings that sometymes ye would have thought this syde of the heavens sometymes that, sometymes al on a fire. during my staying heir i have learned a lesson which may be of use to me in the rest of our travels, to wit, to beware of keiping familiar company wt gentlemens servants, for such a man sal never get respect from the mrs.[ ]; to beware also of discoursing homly with anie servants. we sould keip both their for at a prudent distance. the mr. of ogilvy and i ware wery great. i know not what for a man he'el prove, but i have heard him speak wery fat nonsense whiles. [ ] i.e. masters. about dayes ere i left johns house the mr. of lour (earle of ethie's sone)[ ] wt his governour david scot, scotstorvets nephew, came to orleans; the mr. the very day after took the tertian ague or axes....[ ] [ ] apparently david, afterwards third earl. the title was changed from ethie to northesk after the restoration. the master was grandson to the first earl, who died in . [ ] seven lines erased in ms. that globe that stands on the top of s. croix is spoken to be of so large a periphæria and circumference that men may sit wt in about a round table. one day as i was going to my mr. of institutes as i was entring in a lane (about the martroy) i meit in the teeth the priests carrieng the sacrament (as they call it) with a crosse to some sick person: my conscience not suffering me to lift of my hat to it, i turned back as fast as i could and betook me selfe to another street wheir i thought i might be safe: it followed me to that same very street, only fortunately i got a trumpket[ ] wheir i sheltred myselfe til it passed by. [ ] spiral stair. theirs a pretty maille their; we saw a better one at tours one many accounts; the longitude wheirof we meeted and fand it to be neir paces, as also that of orleans is only ranks of tries; in some places of it ; all the way ye have ranks of tries all of a equall hight and most equally sett in that of tours. about days before my parting from orleans at mademoiselles invitation the mr. of ogilvy and i went wt hir, hir mother and mr. gandy ther tutor, in their coach (for which i payed satly,[ ] that being their policy) to their country village leagues of, situat in the midest of the forest of orleans, much of which is now converted into manured land. this tyme was the first adventure i made of speaking the language, wheir they ware pleased all to give me applause testifieng that i spake much for my tyme. i took coach tymously in the morning before halfe and returned the day after about at night. by the way we saw places wery weill worth the sieng, shynaille and chasteau neuf: shynaille[ ] for its garden and the other both for its house and garden. at synaille a great number of waterworks; creatures of all shapes most artificially casting furth water: heir ye may sy a frog sputing to a great hieght, their a serpent and a man of marble treading on his neck, the water gliding pleasantly partly out at his meickle too, partly out at the serpents mouth: in a part a dog, in a , lions; and all done most livelylie. we regrated that the prettiest machine of all was broken; wheir was to be sein wtin a little bounds above spouts sending furth water and that in sundry formes. in one place it would arise uprightly as a spear; in another as a feather; in a trid[ ] it sould rise sydelings and so furth, and when it had left of ye sould not be able to discern whence the water ishued. the main thing in the house of chasteau neuf was the rich furniture and hingings; yet the richest tapistry that used to be in that house was at that tyme in paris; the master of the house being one of the kings counsellers; yet these we saw ware wery rich; some of them ware of leather stamped marvelously weill wt gold; others in silver; others wrought but wondrous livelylie. from the house we saw the extent of the yard, which was a monster to sy, being like a little country for bigness, and yet in marvelous good order in all things, but especially in the regularity of its walks, each corresponding so weill to the other; having also a pretty forrest of tries on every syd of it: the circuit of this yard will be nothing under miles. i never saw a woman worse glid[ ] then she was (tho otherwise a weelfawored women) that took us thorow the house. at night we lay at their country village. [ ] i.e. sautly, saltly. [ ] i cannot find this name in the maps. [ ] third. [ ] gleyed, squint-eyed. on the morning we went and hard the curé say mass, wheir saw a thing we had not sien before, to wit in a corner of the church having or rocks of tow, some tied wt red snoods, some wt blew. on the sieng of this i was very sollicitous to know what it might mean. having made my selfe understood about it i was told that when any honest women died she might leive a rock full of tow to be hung up in the church as a symboll that they ware vertuous thrifty women. this put me in mind of dorcas whose coats and thrift the women showed to paull after she was died. mass being ended i went and fell in discours with the curé. we was not long together when we fell hot be the ears: first we was on the jansenists opinion about prædestination, which by a bull from the present pope, alex'r the , had bein a litle before condemned at paris; then we fell in one frie wil, then one other things, as purgatory, etc.; but i fand him a stubborn fellow, one woluntary blind. we was in dispute above a hower and all in latin: in the tyme gathered about us neir the half of the parish, gazing on me as a fool and mad man that durst undertake to controlle their curé, every word of whose mouth, tho they understood it no more nor the stone in the wall did, they took for ane oracle, which minds me of the miserablenese and ignorantnese of the peasants of france above all other commonalty of the world; our beggars leading a better life then the most part of them do. in our returning amongs the best merriments we had was my french, which moved us sewerall tymes to laughter; for i stood not on steeping stones to have assurance that it was right what i was to say, for if a man seek that, he sall never speak right, since he cannot get assurance at the wery first but most acquire it by use. leagues from orleans, we lighted at gargeau[ ] wt maddle.[ ] ever after this mademoiselle and i was wery great, which i know not whow the mr. of ogilvy took, i being of much shorter standing their in orleans then he was. [ ] now jargeau. [ ] mademoiselle. just the sabath before my parting from orleans began the jesuits logick and ethick theses to be disputed: the mr. of ogilvy and i went to hear, who bleetly[ ] stayed at behind all almost; i, as give i had bein a person interested thrust into the wery first rank wheir at the distributor i demanded a pair of theses, who civilly gave me a pair, against which tho i had not sein them till then, i durst have ventred a extemporary argument, give i had knowen their ceremonies they used in their disputing and proponing, which i fand litle differing from our oune mode. the most part of the impugners ware of the religious orders; some of them very sharply, some tolerably and some pittifully. the first that began was a minim against a logicall thes[is] that was thus, _relatio et terminus non distinguuntur_. the fellows argument was that usual one, _quæ separantur distinguuntur et hæc_, etc.; the lad answered by a distinction, _quæ separantur per se verum: per accidens, falsum_; and so they went on. the lad chanced to transmit a proposition one tyme: the fellow in a drollery replied, _si tu transmittas ego--revocabo_. thus have we dwelt enough on orleans, its hy tyme for us to leeve it. [ ] blately, modestly. on the 'd day after this dispute, being the of july wt the french and consequently the wt the scots, i took boat at orleans, the mr. of ogilvy wt james his man, as also danglebern accompanieng me to the boat. i left salt[ ] orleans and sett up for blois. in the boat among others were of the order of charité (as they call it) who beginning to sing their redicoulous matins, perceiving that i concurred not wt them, they immediatly suspected me for a hæretick. one of them put me in mind of honest james douy not only for his wisage but also for his zeall and ardeur he showed to have me converted and brought back to the mother church. that he seimed to me to personate mr. douy not only in his wisage but also in his strickness and bigotry--being oftner in telling of his beads then both his other companions fat-looged stirrows[ ] ware--made me fall into the abstract notion that thess who resemble in wisage usually agry in nature and manners, which at that tyme i thought was to be imputed to that influence which the temperament or crasis _primarum qualitatum_ hath on the soull to make it partaker of its nature. [ ] dear, expensive. [ ] fat-eared fellows. i presume that loog is lug, ear. betuixt orleans and blois of tounes on the river we saw first merug,[ ] then baniency.[ ] at night we came to blois, wheir i was the day after to wiew the toune. i fand it situat on a wery steep eminence, in some places as wearisom to go up as our kirkheugh. i went and saw the kings garden as they call it; but nowise in any posture; only theirs besydes it a large gallery on every syde, wheirof i counted windows, and that at a considerable distance one from another; it hath pillars also for every window on whelk it stands. i went nixt and saw the castle whilk stands on a considerable eminence, only its the fatality theirof not to be parfaited, which hath happened by the death of the duke of orleans, who had undertaken the perfecting of it and brought it a considerable length. on the upmost top of that which he hath done stands his portraict in marble. she that showed in the rooms was a gay oldmouthed wife who in one chamber showed me wheir one of the kings was slain, the very place wheir he fell (the duke of guise, author of the parísien massacre) and the back door at which the assasinates entered: in another wheir one of their kings as also seweral of the nobility ware keipt prisoners, and the windows at whilk one of ther queen mothers attempted to escape, but the tow proving to short she fell and hurt hirself. [ ] meung, now meun. [ ] beaugency. when i was in the upmost bartizan we had one of the boniest prospects that could be. about leagues from us in the corner of a forest we saw the castle of chamburgh,[ ] a place wery worthy the sieng (as they say) for the regularity of its bastimens. we saw wtin a league also tuo pretty houses belonging to mr. cuthbert, whom we would have to be a scot. i went and saw sewerall churches heir. i lay not at the galere, but at the chass royall: part of the company went to the croix blanche. [ ] chambord. i cannot forget one passage that behappened me heir: bechance to supper i demanded give he could give me a pullet, he promises me it. my pullet comes up, and wt it instead of its hinder legs the hinder legs of a good fat poddock. i know them weill enough because i had sien and eaten of them at orleans. i consedering the cheat called up my host and wt the french i had, demanded him, taking up the leg, what part of the pullet that might be, he wt a deal of oaths and execrations would have made me believe it was the legs of a pullet, but his face bewrayed his cause; then i eated civilly the rest of my pullet and left the legs to him: such damned cheats be all the french. having bein a day at blois i took boat for tours in new company againe, of some frenchmen, a almand and a dutchman; wt whom i had again to do vindicating my prince as the most just prince in the world in all his procedures wt the hollandez. the fellow behaved himselfe wery proudly. betuixt blois and tours we saw amboise, which is in estime especially by reason of its casle. as we was wtin halfe a league of tours by the carelesnese of the matelots and a litle pir of wind that rose we fell upon a fixt mill in the river, so that the boat ran a hazard of being broken to peices, but we wan of, only or dales in hir covert was torn of. arriving at tours about a cloack we all tooke another boat to carry us about a league from the city to sie a convent of the benedictines (marmoustier) a very stupendious peice give ended. it hath also a very beautifull church, many of the pillars of it being of marble, others of alabastre, and that of sundry coleurs, some red, some white, etc.: whence on the entry theirs a prohibition hung up interdicting all from engraving their name or any other thing on the pillars, least of deforming them. one of the fathers of the order came and did let us sy the relicts of the church which ware the first relicts i saw neir at hand: i having sien some at a distance carried in processions at orleans. their we saw the heart of benedictus, the founder of their order, enclosed in a crystall and besett wt diamonds most curiously. we of our company, being , ware all of the religion, whence we had no great respects for the relict; but their ware som others their that ware papists; who forsooth bit[ ] to sit doune on their knees and kist. at which i could not contein my selfe from laughing. [ ] were obliged. their saw we also a great number of old relicts of one st. martin. they had his scull enclosed (give his scull and not of some theife it may be) in a bowll of beaten silver. in a selver[ ] besyde was shank bones, finger bones and such like wery religiously keipt. he showed us among others also a very massy silver crosse watered over wt gold very ancient, which he said was gifted them by a englishman. i on that enquired whow they might call him. he could not tell til he cost up his book of memorials of that church; and then he found that they called him bruce, on which i assured him that that was a scots name indeed of a wery honorable family. [ ] salver. then we returned back to tours, wheir we went first to sie their mail[ ] (which i counted by ordinar paces of whilk it was . arbres).[ ] about the distance of less than halfe a league we saw the bridge that lays over the river of chere, which payes its tribut to the loier at langes,[ ] a little beneath tours. next we went and saw some of their churches. in their principal was hinging a iron chaine by way of a trophee. i demanding what it might mean, i was told it was brought their by the chevaliers or knights of malta. [ ] english, mall. originally an alley where a game was played with a _mail_, a strong, iron-bound club, with long, flexible handle, and a ball of boxwood. [ ] arbre (arbour) probably means 'a shaded or covered alley or walk.'--murray's _new english dict_., s.v. 'arbour.' the history of the word, with its double derivation from the anglo-saxon root of 'harbour' and the latin _arbor_, is very curious. see introduction, p. , note . [ ] langest in blaeuw's map, now langeais. we lodged at the innes.[ ] to-morrow tymously we took boat for saumur (st. louis). al the way we fand nothing but brave houses and castles standing on the river, and amongst other that of monsoreau tuo leagues large from saumur, wheir the river of chattellerault or vienne, which riseth in the province of limosin, tumbleth it selfe into the loier; this monsereau is the limits of provinces; of torrain, to the east of whilk tours is the capital, and of anjou to the west, in whilk is saumur, but angiers is the capitall. when we was wtin a league of saumurs they ware telling us of the monstrous outbreakings the river had made wtin these years upon all the country adiacent, which made us curious to go sie it. whence we landed; and being on the top of the bank we discovered that the river had bein seiking a new channell in the lands adiacent, and had left a litle young loier behind it; the inundations of this river seims so much the stranger to many, that finding it so shallow generally that we could not go a league but we had our selfes to row and work of some bed of sand or other, makes men to wonder whence it sould overflow so. thir beds randers it wery dangerous in the winters; yea in our coming doun we saw in or places wheir boats had bein broken or sunk thir last winter; some part or other of them appearing above as beacons. in sewerall places it wines so on the land that it makes considerable islands, yea such as may give some rent by year. at last we landed at saumur, but before i leive the,[ ] fair loier, what sall i say to thy commedation? surely if anything might afford pleasure to mans unsatiable appetit it most be the, give they be any vestiges of that terrestrial paradise extant, then surely they may lively be read in the. whow manie leagues together ware their nothing to be sein but beautiful arbres,[ ] pleasant arrangements of tries, the contemplation of which brought me into a very great love and conceit of a solitary country life, which brought me also to pass a definitive sentence that give i ware once at home, god willing, i would allot the one halfe of the year to the country and the other halfe for the toune. is it not deservedly, o loier, that thou art surnamed the garden of france, but i can stay no longer on the, for i am posting to mr. doul my countrymans house, who accepts us kindly. his wife was in the country, seing give the pleasures of the samen might discuss and dissipat the melancholy she was in for the parting of her sone, whom his father had some dayes before send for england, to wit, for oxford, meirly that he might be frie from his mothers corruptions, who answering him to franckly in mony, the lad began to grow debaucht. behold the french women as great foolls as others. on the morrow after she returned, amongs other expressions, she said, that it gave heer encouragdement to let hir sone go wt the better will that she saw that i, as a young man, had left my native country to come travell. [ ] innes for inn, cf. p. at top. [ ] i.e. thee. [ ] see p. , note . i went and saw my lord marquis of douglasse[ ] at mr. grayes, whom i was informed to live both wery quietly and discontentedly, mony not being answered him as it sould be to one of his quality; and this by reason of discord amongs his curators, multitude wheirof hath oft bein sein to redound to the damage of minors. he was wearing his winter cloath suit for lack of another. he had a very civill man as could be to his governour, mr. crightoune, for whom i had a letter from william mitchell. [ ] james, second marquis, born , died . sabath fornoon we went togither and hard sermon in their church, which is wtin the toune; afternoon we took a walk out to a convent which they call st. florans. by the way he communicated to me his intentions for leaving the marquis, whom he thought wtin some few moneths would return for scotland, his affairs demanding his oune presence, as also his resolutions of going into italy give it took foot. i demanding him whow a man that came abroad might improve his tyme to the best advantage, and what was the best use that might be made of travelling. he freely told me that the first thing above all was to remember our creator in the dayes of our youth, to be serious wt our god: not to suffer ourselfes to grow negligent and slack in our duty we ow to god, and then to seik after good and learned company whence we may learn the customes of the country, the nature and temper of the peaple, and what wast diversity of humours is to be sein in the world. he told me also a expression that the protestant minister at saumur used to him, whereby he taxed the most part of strangers as being ignorant of the end they came abroad for, to wit, that these that came to sie saumur all they had to writ doune in their book was that they went and saw such a church, that they drank good wines, and got good wictuals at the hornes, a signe wheir strangers resorts. the convent we fand to be liker a castle than a religious house. we saw a large window, the covert wheirof was stenchells like those that are on the windows of the abby at holyrood house; but very artificially all beat out of one peice of iron, but not ioined and soudred togither as they used to be. saumurs is a pretty little toune wt fields upon all hands most pleasant. i, amongs other things, enquired at mr. doull what was their manner in graduating their students their. he told me it was wholly the same wt that in other places. they give out theses which the students defended, only they had a pretty ceremony about the close: each of these to be graduat got a laurell branch, on the leaves wheirof was every mans name engraven in golden letters. item, he said that when he reflected on the attendance that the regents in scotland gave to ther classes, he thought he saw another egyptiacall bondage, for wt them they attended only dayes of the weeks, and in thess no longer than they took account of ther former lesson, and gave them out a new one, which they send them home to gett. on a afternoon i was their i made a tour doune throu the suburbs of the toune to the convent of nostre dame des ardilliers.[ ] on my return mr. doull and mr. crightoun demanding of me wheir i had bein, i freely told: wheirupon they fell to to scorne me, asking what i went to seek their. i told meerly to walk. they alleadged that john ogilvy at orleans bit to have told me of the place; that it was the most notorious part of france for uncleanness, and that women that could not gett children at home, coming their ware sure to have children. to speak the truth the place seimed to me wery toun like, for their came a woman to me and spered whey i all alone. [ ] the church of notre dame d'ardiliers, of the sixteenth century, was enlarged by richelieu and madame de montespan. the night before my parting from saumur a young gallant of the toune, to show his skill, showed the wholle toune some fireworks in a boat on the river, but they ware wery pittifull, the principall thing we saw being only some fireballs which they cost up in the air to a considerable hight som tymes. theirs one thing we most not forget in the river. in our coming doune in sewerall places on the syde of the rivers bank we saw pleasant little excrescencyes of litle rocks and craigs, which makes exceidingly to the commendation of the places. in thes craigs are built in houses, which be the vertue of antiperistasis is cold in summer and hot in winter, tho their be some of them they dare not dwell in in winter by reason of the looseness of the earth then. having stayed dayes in saumur i hired horse for poictiers, only the fellow who aught the horse running at my foot. we rode by nostre dame and along the side of loier as far as monsereau. heir i'm sure i was thrie miles togither under the shade of wast valnut tries on each syde ladened wt fruit, great abondance of which i meit all the way thorow. at monsereau i left loier, and struck south east be the banks of the river of chasteleraut in turrain, of whilk tours is the capitall, the most renouned toune of france for manufacturies of silks of all sorts. we dined at chinon, standing on that river great leagues from saumur. as we ware about a league from chinon, i leiving my guid a considerable distance behind me, thinking that i bit always to keep close be the river syde, i went about a mile wrong. the fellow thinking i was in the right way he strikes in the right; i begines to look behind me. i cannot get my eye upon him; stands a long tym under a shade very pensive. first i saw some sheirers (for in france it was harvest then, being only the beginning of july wt the scots) at their dinner. i imagined that the fellow might have sit doune wt them to take scare.[ ] after waiting a long tyme i began to steep back, and drawing neir the sheirers i could not discover him, whence a new suspition entred in my head, because i had given him at chinon, on his demand, livres of which i was to give him to defray all my charges to poictiers, that he had sliped away wt that that he might bear no more of my charges, being sure enough that he would get his horse when i brought it to poictiers. all this tyme i never dreamed i could be out of the way, yet i spered at the sheirers what might be the way to richelieu, who told me i was not in the way. then i know the fellow bit to be gone that way, whence i posted after him, and about a league from that place i overtook him laying halfe sleiping in a great deall of care, the poor fellow wery blaith to sy me. i demanded what was his thoughts, whether he thought i was a voler that had run away wt his horse. he said he quaestioned not in the least my honesty but he began to suspect i might have fallen amongs robbers. [ ] share, pot-luck. thus we came to chopigni,[ ] a pretty village a league from richelieu, and about a cloack we entred richelieu, a toune that give yeell consider its bigness it hath not its match in france. for being about a mile in circuit, besides a wery strong wall, it hath a considerable ditch environing it having something of the nature of a pond; for it abounds wt all sorts of fisches. the french calls it une canale. being entred the toune ye have one of the prettiest prospects thats imaginable. it hath only one street, but that consisting of such magnifick stately houses that each house might be a palace. ye no sooner enter unto the toune but ye have the clear survey of the whole wt its ports; which comes to pass by the aequality of the houses on both sydes of the street, which are ranked in such a straight line that a lyncaean or sharpest eye sould not be able to discover the least inaequality of one houses coming out before another. they are all reased also to the same hieght, that ye sall not sy one chimly hier then another: for they are al story hy and built after that same mode window answering to window; so that ye sall sy a rank of about a hundred windows in a straight line. [ ] champigny. but i hast to the castle, which is bueatiously environed wt that same canale on the banks of which are such pleasant arrangements (palissades)[ ] and umbrages of tries making allies to the length of halfe a mile; in which i fand that same i had observed in the toune: the tries ranked so aequally that its wonderfull to hear; tho monstrously hy yet all of them observing such a aequality that ye sould find none arrogating superiority over his neighbour. we entred the castle by a stately draw bridge over the canale. over the first gate stands a marble lowis the , this present kings father, on horseback: on his right hand stands mars the god of armes; on his left hercules wt his great truncheon or club. [ ] interlined, palissades. rows of trees planted close. term derived from fortification. see littré's _dict_. having past this gat, we entred into the court or close round about whilk the palace is built. the court is tymes as large as the inner court of the abbey.[ ] al around the close stand a wast number of statues infinitely weill done: only i fand they had not provided weill for the curiosity of spectateurs in withholding their names and not causing it to be engraven at their feet. they informed me they ware the statues of the bravest old greeks and romans: as of alex'r, epiminondas, cæsar, marcellus, and the rest. by the wertue of powerful money all the gates of the castle unlockt themselves. the first chamber we entred into he called the chamber de moyse, getting this denomination from the emblem hinging above the chimly, wheirin was wondrously weill done the story whow pharoes daughter caused hir maid draw the cabinet of bulrushes wheirin moses was exposed upon the nile to hir sitting on the land. this room (the same may be repeated of the rest) was hung wt rich tapistry and furnished wt wery brave plenishings, as chairs, looking glasses, tables and beds. for the præserving of the curtains each bed had _tours de lit_ of linnen sheets, which, causing to be drawen by, we fand some hung wt rich crimson velvet hingings; others wt red satin; others wt blew; all layd over so richly wt lace that we could hardly decerne the stuffe. we fand one bed in a chamber (which they called one of the kings chambers) hung wt dool, which when occasion offered they made use of. this minded me of suintones wife, who when she was in possession of brunstone[ ] had hir allyes and walks so appropriated to particular uses that she had hir ally wheirin she walked when she was in mourning, another when she had one such a goune, and so furth. but to return, in another chamber we was put to the strait of exercing our _liberum arbitrium_. many pleasant objects offering themselfes to our wiew at the same tyme, we was at a pusle wt which of them to begin: for casting up our eyes to the cieling we fand it cut out most artificially unto sewerall sorts of creatures. theirs a lion standing ramping ready as ye would think to devore you; yonder a horse; yonder a dog at the chass; and all this so glittering by reason that its covered wt gold that it would dazell any mans eyes. but calling away your eyes from this we deschended to the walls of the chamber, wheir ye have standing in one broad justice, a martiall like woman wt a sword in hir one hand, and the balance in the other. on her right stands verity, a woman painted naked to show that the truth most be naked since it demands no coverture. on the other stands magnanimity, a woman of a bravadoing countenance. in another broad stands prudence. in a d (la chambre de lucresse) as a emblem of chastity we have the story of lucretias rapture by tarquinius superbus sone: first ye have him standing at hir chamber door wt his men at his back looking thorow the lock whither she was their or not; in the same broad[ ] ye have represented the violence he used to hir; then as the epiloge of the tragædy ye have hir killing herselfe. in another broad ye have to the life don the story of judith bringing away the head of holofernes. [ ] holyrood. [ ] when the duke of lauderdale was under forfeiture the estate of brunston, belonging to him, was granted to swinton of swinton.-- sir g. mackenzie's _memoirs_, p. . [ ] panel. in another chamber ye have lewis the portraicts wt those of all the rest of the royall family and the most part of the courtiers, counsellers and statesmen of that tyme, togither wt a embleme of the joy of the city of paris at the nativity of this king. of this chamber goes a pitty but pretty litle cabinet for devotion. their stands a large crucifix of marble wonderously weill done, round about hings the apostles wt the sufferings they ware put to. their may ye sie the barbarous indians knocking bartholemew, who was spreading the gospell among them, wt clubs to death; and so of the rest. in another chamber on the cielery we have panted thetis dipping hir sone achilles in the ocean to render him immortall. she hath him by the foot, whence in all his parts he becames immortal and impatible, save only in the sole of his feet, which ware not dippt. next ye have him slain by paris whiles he is busy on his knees at his devotion in the temple; paris letting a dart at him thorow a hole of the door, which wounding him in the sole of his foot slow him. nixt ye have achilles dragging hectors dead body round about the walls of troy. then ye have priamus coming begging his sones body. ye have also diomedes and glaucus frendly renconter wt the exambion they made of their armes. in another chamber we found wery delicat weill wrought tapistry wheirin ware to be sien, besydes sewerall other stories taken out of homer, the funestous and lamentable taking of troy. in this same chamber saw we hinging the cardinals oune portraiture to the full, in his ride robes and his cardinals hat wt a letter in his hand to tel that he was the kings secretary: his name is beneath. _armandus richeleus anagrammatized hercules alter_. surely the portrait represents a man of wery grave, wise and reverend aspect. besydes him hinges the portraict of his father and mother. his father had bein a souldier; the cardinal was born in richeliew. in another chamber was hinging carts[ ] (al done by sampson), the one exceeding large of france done by one sanson, the kinges geographer; the nd of italy wt the iles adiacent of corsica, sardinia, sicily, etc.; the d of the countryes that lyes on the famous river of rhein, which runes thorow germany, and in the low countries embrasses the sea. [ ] maps. at length we came unto a very large gallery, wheir hinges the emblems of al the things of greatest consequence that happened in france during the tyme of the cardinall, as the beseigding of tounes that revolted, and the stratagemes by whilk some of them were taken. at each end of the gallery stands a table, but i sal confine my selfe to speak only of the one. removing a cover of leather their appeares a considerable large table as long as etc., the richest beyond controversy of france: it consistes of precious stones and diamonds, but joined wt such wonderfull artifice that a man would easily take it for one inteer stone of sewerall colours, the proportion also of their joinctures, each colour answering to another, makes much to the commendation of it. give their be a rid sardix heir, it hath direictly of that same very bigness another sardix answering to it their; or ye may suppose it to be a blew saphir. in the wery center and midle of the table is planted about the meikledoom[ ] of a truncher[ ] a beautifull green smaradyes; round about it stands a row of blew saphire, then another of rid diamonds; then followes a joincture of golden chrysolites, the bigness wheirof renders them wery wonderfull, being exceeding rare to be found of the halfe of that bigness. their is not any coleur which is not to be found amoungs the stones of that table. they are joined so marvelously that nothing can be smoother or æequaler. thus breifly for the house. [ ] size. [ ] trencher. of one of the balconies we descryed the garden, which was wery pleasant, having great resemblance wt that of chateau neuf, up and doune it ware growing holyhaucks of all colours; but i cannot stay no longer upon the, for i am hasting to your church, which i find wery rich, as generally all the churches in france are. after i had supped i could not but come and wiew the situation and walls wtout; but fareweil, for the morrow night setts me in poictiers. on the hy way as i travelled i mett bothe aples and plumes, which i looked not one as forbidden fruit, but franckly pulled. as soon as i came wtin sight of poictiers i welcomed it heartily as being to be a place of rest to me for a tyme. entering into the suburbes of the toune, i easily discovered the reason of our buchannans expression, _pictonum ad scopulos_: for then and afterwards i discovered it to be environed wt raged rocks and craigs, the toune it selfe also to be situat on a considerable eminence; and give ye take in all its circuit it neids not yeeld much to paris in bigness; only much of it is filled up wt spatious gardens for the most part belonging to religious orders, sometymes of men sometymes of women. it hath also wines that growes within its circumference, as these that grow in the place of the scots walk may testify. having entred the toune we sought out mr. garnier the apothecaries, for whom i had a letter from mr. doull at saumurs, who on that accepted us kindly enough, only they had not such accomodation as i demanded, whence i took occasion to deliver a letter i brought wt me out of scotland from young john elies to mr. daillé, wt whom i entred pensionar about dayes after i had bein in poictiers, to wit july . i cannot bury in silence the moderation of mr. garniers wife, so wertous and sparing a house wife she was that wine never entred in hir mouth. always hir drink was pure water, tho no restraint was laying upon hir to do it. as the nature of thir peeple is to be wery frugall, so i fand that they ware right athenians loving to tell and to hear news, which may be marked also in the most part of them that live on the loier; for i had not bein a night in poictiers when all that street, and in sewerall other places of the toune, sundry knew that a scotsman was come to the toune; that he came from saumur, that he brought a letter for mr. garnier wt whom he quartred. the first night on my arrivall after i had supped came in my hosts brother, a marchand, who amongs others enquired if i might know mr. douglas. i replied, yes; he added that he had left a child behind him, which tho mr. daillé owned for his, yet it had wholly a scots cry not a french. the morning after my arrivall they chanced to have sermon in the protestants church at quatre picket, wheir i fand colinton,[ ] who a little before had returned from the rochell, wheir he had bein also on the isle of rhee and that of oleron. he after dinner took me to mr. alex'rs, wheir i found all our countrymen convened, only alex'r hume was at that tyme out in the campaigne some leagues. their i fand my right reverend good sir mr. patrick hume,[ ] for whom i had two letters, one from pighog,[ ] another from john suty at london, david hume, for whom i had a letter from saumur, mr. scot, ardrosses sone, and mr. grahame, morphees sone. shortly after i saw both the alex'rs, alexander the professour, to whom i delivred a letter from young j. elies and alex'r hume: them all one night i took in to a hostellery called le chappeau d'or and gav them their supper, which cost me about livres souse. [ ] probably james foulis, son of sir james foulis, lord colinton, advocate , a lord of session , with the title of lord reidford. [ ] the friend thus playfully described may be sir patrick hume, advocate, who often appears as a litigant in fountainhall's _decisions_. [ ] see page , note . about dayes after i had bein in poictiers was keipt be the jesuits ignatius loyola their founders day, whence in the jesuits church their was preaching a fellow that usualy preaches, extolling their patron above the wery skies; evicting whow that he utstripped infinitly the founders of all other orders, let it be st. françois, st. dominick, or be who he will, by reason that he founded a order to the universal good of christendome; the order not being tyed to one place, as other religious are, but much given to travelling up and doune the world for the conversion of souls, which truly may be given as a reason whey all that order are usually so experimented and learned; for their are of them in americk itselfe. from all this he concluded that ignatius was and might deservedly be named the universall apostle of the christian world. he showed also the manner of his conversion to that manner of life; whow he had bein a soger (he was a spaniard by nation) til his or year of age. one tyme in a battell he had receaved a wound right dangerous, during the cure of this wound one tyme being some what veary and pained he called for a story or romance. they having none their, some brought a devot book termed the saints rest, not that of baxters; in which he began to read wt a sort of pleasure, but wtout any touch. at lenth continuing he began to feel himselfe sensibly touched, which wrought so that he wholly became a new man; and wt the permission and confirmation of the pope then instituted the order. a litle after followed st. dominicks day observed by the jacobins, wheir i went to hear his panegyrick preached. their preached a fat-looged[ ] fellow of the order. his text was out of the of ecclesiasticus, _vas auroeum[ ] repletum omni lapide proetioso_: all his sermon ran to make dominick this vessell. he deduced all that a man might be praised for from the fold sort of dueties: , these we ow to god; , these towards our neighbours; and , these towards himselfe. for the vertues that are relative to god, he numbered them up to , and that out of thomas, whom they follow in all things; amongs which were piety, sanctité, zeal for religion, which broke out to that hieght that he caused sundry of the poor albingenses, over the inquisition of whom he was sett, to be brunt; but this he mentioned _no_. for duties of the nd sort he numbered up out of the same thomas amongs others thir, chastité. of dominicks chastity he sayd he was as sure as of one thats new borne. charité, which was so great one tyme that having nothing to give to the poor, he would have given himselfe to a poor widow woman; at which we could not but laugh, tho' his meaning was that he would have bein content to sell himselfe that the woman might get the money. he forgot not also his strictness of life and discipline, so that after his death their was found a cord in wtin his wery flech he girded him selfe so strait wt it. heir he recknoned upe his prudence and magnanimity. amongs theduties a man owes to himselfe amongs others he reckned up temperance; in which he would gladly have us beleiving that st. dominick never eated any in his dayes, so great was his abstinence. then he came to compare him wt the cælestial powers, which he divided out of dionysius pseudareopagita into the hierarchies receaved in the romish church, of angels, archangels, powere, dominations, cherubins, seraphines, etc., and then showed his dominick to excell them all. many stories he told us which are to be seen in his legends, but never a word of the zeal he had when he sat doune and preached to the birds (and seing a frier kissing a nun he thanked god that their was so much charité left in the world). his epiloge was that st. dominick was worth all the saincts of them. and to speak the truth, beleiving him he made him on of the perfectest men of the world, subject to no imperfection. i could discover no difference he made betuixt him and christ. [ ] see p. , note . [ ] _for aureum._ the forme of their preaching is thus. after they are come unto their pulpit they signe their foorfront and breast with the signe of the cross wt that in nomine patris, filij, and s.s., as a means to chass away satan; then they go to their knees for a wery short space as our bischops do; then raising they read their text; after which they have a short prayer direct to christ and his mother, or even the sainct, if they be to speak of any, for their aid and assistance. then they preach; after which thess that please to walk may do it. the rest stay out the vespres. the forme of the protestant churches differs not much from ours. on the sabath morning during the gathering of the congregation they sing a psalme; the minister coming up by a short sett forme of exhortation, stirring them up to ioin wt him in prayers, he reads a sett forme of confession of sines out of their priers ecclesiastiques or liturgie; which being ended they singes a psalme, which the minister nominats, reading the first or lines of that to be sung, after which they read no more the line, as we do, but the peaple follows it out as we do in glory to the father, the psalme being ended, the minister has a conceaved prayer of himselfe adapted for the most part to what he'es to discourse on. this being ended he reads his text. having preached, then reads a prayer out of their liturgy, then sings a psalme, and then the blissing. about a night after i had bein their some chanced to be taken in the order of the capuchins, of which order this is strange that the poorest yet they are numerousest, their being dailly some or other incorporating themselfes, their poverty is such that they have nothing to sustein them but others charité when they come begging, and that every hours. they having nothing layd up against tomorrow, if their be any day amongs others wheirin they have gotten litle or nothing, notwtstanding of this they come al to the table, tho' nothing to eat. each man sayes his grace to himselfe, their they sit looking on one another, poor creatures, as long as give they had had something to eat. they fast all that day, but if their be any that cannot fast it out, then he may go doune to the yard and houck out , carrots to himselfe, or 'stow some likes some sibows, beets or such like things, and this is their delicates. if their be any day wheirin they have gotten more then suffices them all, the superplus they give to the poor. the convent hath no more rent than will defray their charges in keiping up their house about their ears. al this do thir misers under the hopes of meriting by the samen: yet i would be a capuchin before any other order i have sein yet. to sie the ceremony of their matriculation unto the order i went wt my good sire, wheir the principal ceremony was that they cast of their cloathes wheirwt they ware formerly cloathed and receaves the capuchines broun weid, as also they get the clerical tonsure, the cord about their west, and the clogs of wood on their bare feet. a great number of speaches being used in the intervalls containing as is probable their dueties, but we could not understand them for the bruit. at the point of each of them all the peaple cried amen. finaly we saw them take all the rest of ther brethren by the hand, all of them having burning torches in their hands. after this, on august , came about ste. radegondes daye, wheiron i saw sewerall things: first wt mr. bouquiet we went doune to the church of ste. radegonde, which stands almost on the bord of the river sein, which runes by poictiers; and their visited hir tomb; but we had a difficulty of accez, such multitude was their dronning over their prayers, _sainte radegonde, radegonde, priez pour nous et nos ames_, and this a tymes over, at each tyme kissing the sepulchre stone which standes reasonable hy. from this we went to hir chappell that stands besydes the church of st. croix, to sy the impression that christ left wt his foot (so sottish is their delusion) on a hard great stone when he appeared to ste. radegonde as she was praying at that stone. the impression is as deip in the stone as a mans foot will make in the snow; and its wonderfull to sy whow thir zealots hath worn the print much deiper in severall parts wt their continuall and frequent touching of it thorow the iron grate wt which it is covered, and kissing it on ste. radegondes day when the iron grate is removed; according to that, _gutta cavat lapidem_, etc. all this they do thinking it the least reverence they can do to the place wheir our saviours foot was. for immediatly upon the notification of that by ste. radegonde they caused erect a chappel above the stone, and hath set up christ upon the right of the impression wt capuchin shoes on his feet: and on the left ste. radegonde on hir knees wt hir hands folded praying to him. on the wall besydes they have this engraven, _apparuit dominus jesus sanctae beatae radegundae et dixit ei, tu es speciosa gemma, noverim te praetiosam in capite meo_ (and wt that they have christ putting his fingers to his head) _gemmam_. out of this we came to the church of st. croix, wheir just as we were entring ware coming out women leading a young lass about the age of who appeared evidently to be distracted or possessed by some dewill, by hir horrid looks, hir antick gestures, and hir strange gapes: hir they had had in the church and had caused hir kneell, they praying before the altar for hir to ste. radegonde, whom they beleived had the power to cure hir. the priests knaveries are wery palpable to the world in this point, who usually by conjurations, magicall exorcismes as their holy water, consecrated oill, take upon them to dispossess or cure sick persones, but so far from having any effect, that the devill rather gets great advantage by it. having entred the church, standing and looking earnestly about to al the corners of the church, and particularly to the altar, which was wery fine, wt as great gravity as at any tyme, a woman of faschion on hir knees (for indeed all that ware in the church ware on their knees but my selfe) fixing hir eyes upon me and observing that i nether had gone to the font for water, nether kneelled, in a great heat of zeal she told me, _ne venez icy pour prophaner ce sainct lieu_. i suddenly replied, _vous estez bien devotieuse, madame; mais peut estre vostre ignorance prophane ce sainct lieu d'avantage que ma presence_. this being spoken in the audience of severals, and amongs others of a preist, i conceived it would not be my worst to retire, which i did. that same afternoon i went to mr. alex'rs to seik patrick hume, wheir i faud them hearing him explaine some paragraphe of the institutes: wheir mr. alex'r and i falling on some controverted points betuixt us and them, i using a great deall of liberty citing frome his oune authors as bellarmine, etc., i angred him exceedingly. then patrick hume, david, mr. grahame and i went to walk: and particularly to the pierre levé or stone erected a litle way from the city. the story or fable wheirof is this: once as ste. radegonde was praying the devil thought to have smoored[ ] or crushed her wt a great meikle stone greater than milstones, which god knows whence he brought, but she miraculously supported it wt hir head, as the woman heir carries the courds and whey on their head. surly she had a gay burden; and never rested till she came to that place wheir its standing even now. they talk also that she brought the pillars on which its erected till above a mans hight in hir lap wt hir. i mocking at this fable, i fell in inquiry whence it might have come their, but could get no information; only it seimed probable to me that it might have bein found in the river and brought their. on the top of this stone i monted, and metted[ ] it thorow the diametrum and found it foot; then metted it round about and found it about foot. coming doune and going beneath it we discovered the place wheir hir head had bein (_nugae_). [ ] smothered. [ ] measured. we went and saw a stately convent the benedictines ware building, the oldest and richest order of france. to them it is that nostre dame at saumur belongs; to them belongs the brave bastiments we saw at tours, in which city as i was on the loier i told considerable steeples. we saw the relicts of a old convent, wheirupon enquiring whow it came to be demolished, he replied it was in calvines tyme, who studied his law in poictiers; and then turning preacher he preached in the same very hall wheir we hear our lessons of law. his chamber also is to be sein wheir he studied on the river syde. i cannot forgett a story of calvin which mr. alex'r told us saying it was in their histories, that calvin once gladly desiring to work a miracle suborned a fellow to feigne himselfe dead that so he might raise him to life. gods hand was so visible upon the fellow that when he went to do it he verily died and calvin could not raise him: this was in poictiers. and it minded me first that i had read almost the like cited out of gregorious turonensis history by bellarmine in his treatise _de christo_ refuting arianisine of a arian bischop who just so suborned one to feinge himselfe blind that he might cure him, but god really strake him blind. also it minded me of a certain comoedian (who was to play before the duc of florence) who in his part had to act himselfe as dead for a while. he that he might act himselfe as dead wt the more life and vigeur agitated and stirred or rather oppressed his spirits so that when he sould have risen he was found dead in very truth. as also ly of a certain italian painter who being to draw our saviour as he was upon the cross in his greatest torment and agony (he caused a comoedian whose main talent was to represent sorrow to the life), he caused one come and sit doune before him and feigne one of the dolfullest countenances that he could that he might draw christ of him; but he tuise sticked it, wt which being angred he drew out a knife and stobbed the person to the heart; and out of his countenance as he was wrestling wt the pangs of death he drow christ on the cross more lively then ever any had done, boasting that he cared not to dy for his murder since he had christ beholden to him for drawing him so livelylie. i remember also of a passage that howell in a letter he writes from geneva hes, that calvin having bein banished once by a prævalent faction from the city again being restored, he sould proudly and blasphemously have applied to himselfe that saying of david, proper to christ, the stone which the builders refused the same is become the head of the corner. but granting that all thir to be true, as they are not, they ware but personall escapes, neither make they me to think a white worse of his doctrine. but as to the point of miracles its notoriously knowen that the church of rome abuses the world wt false miracles more then any: for besydes these fopperies we have discovered of ste. radegonde they have also another. thus once st. hilary (who was bischop of poictiers about the century, and who hes a church that bears his name, erected on the wast syde of the toune a little from the scotes walk), about a league from the toune (thus reportes _les annales de aquitaine_), as he was riding on his mule christ meit him. his beast, as soon as it saw our saviour, fell doune on the knees of it. as a testimony wheirof that it fell doune they show at this day the _impressa_ both its knee and its foot hes made miracoulously in the rock, but this is _fort mal a propos_; since they seem to mak their st. hilary balaam; and his mulet balaam his ass which payed reverence to god before its mastre. this fable minded me of the story we have heir at home, that we can show in leith wind craigs the impressa that wallace made wt his foot when he stood their and shoot over the steeple of edenburgh. yet their all these things are beleived as they do the bible. when we was wtout the city we discovered that it would signify litle if it wanted the convents and religious houses, which ware the only ornaments of the city. this much for the of august, i had not bein so much out a fortnight before put it all together. heir i most impart a drollery which happened a little before in poictiers. some flamans had come to the toune and taken up the quarters in a certain innes.[ ] while they ware supping, the servant that attended them chanced to let a griveous and horrid fart. the landlady being in the roome and enquiring give she thought not shame to do so, she franckly replied, _sont flamans, madame, sont flamans, ils n'entendent pas_; thinking that because they ware strangers that understood not the language, they understood not also when they hard a fart. [ ] inn. o brave consequence, i went one night to the marché vieux and saw some puppy playes, as also rats whom they had learned to play tricks on a tow.[ ] [ ] rope. just besyde that port that leads to quatre picket (de st. lazare) or paris is erectcd a monument of stone, something in the fashion of a pyramide. i enquiring what it meant, they informed me the occasion of it was a man that lived about or years ago in the house just forganst it, who keiping a innes, and receaving strangers or others, used to cut their throats and butcher them for their money; which trade he drave a considerable tyme undiscovered. at lenth it coming to light as they carried him to paris to receave condigne punishment, they not watching him weill enough he killed himselfe whence they did execution on his body, and erected that before the door, _ad æternam rei memoriam._ i think they sould have razed his house also, yet their is folk dwelling in it prcsently. i went also and saw the palais wheir the advocats used to plead but it had fallen down by meer antiquity about moneths before i came to poictiers whence the session had translated themselfes to the jacobines, whom i went and saw their. in the falling of the palais it was observable that no harm redounded to any, and that a certain woman wt a child in hir armes chancing to be their on day raising out of a desk wheir she was sitting she was hardly weill gon when a great jest[ ] fell (for it fell by degries) and brok the desk to peices. [ ] joist. their hinges bound upon the wall wt iron chaines the relicts of a dead hideous crocodile, which, tho' it be infinitly diminished from what it was (it being some hundred years since it was slain), yet its monstrously great wt a wast throat. this, they say, was found in one of their prisones, which i saw also. on a tyme a number of prisoners being put in for some offences, on the morrow as some came to sie the prisoners not one of them could be found, it having eaten and devored them every one. not knowing whow to be red of this trubulsom beast no man daring attempt to kill it, they profered one who was condemned to dy for some crime his life give he killed it. wheir upon he went to the prison wt a weill charged pistoll as it seimingly being very hungry was advancing furiously to worry him he shoot in at a white spot of its breast wheir its not so weill armed wt scalles as elsewheir and slow it and wan his life. i enquiring whow that beast might come their it seimed most probable that it was engendred their _ex putri materia_, as the philosophers speaks, tho i could hardly weill believe that the sun could giv life to such a monstrous big creature as it. we have had occasion to sie severall tymes madame biton the tailleurs daughter, that lives forgainst mr. daillés, with whom madame daillé telles me mr. hope was great. truly a gallant, personable woman to be of such mean extract and of parents wheirof the father is a wery unshappen man; the mother neids yeeld nothing to jenny geddes. i observing that ye sould never sy any of the religious orders be they jesuits or others on the streets but of them togither, i enquired the reason. first it was that the on might watch the other that so none may fly from their convents, which they might easily do if they had the liberty of going out alone. dly they do it to evite all scandall and suspicion. they know the thoughts of the common peeple, that they be litle faworable to them, the orders being talkt of as the lecherousest peeple that lives. to exime their thoughts they go tuo and ; for then if the one be so given he his a restraint laying on him, to wit, another to sie his actions; but usually they are both lounes.[ ] [ ] knaves. they have a way of conserving great lumps of ice all the summer over heir in low caves: and these to keip their wines cold and fresh from heating when they bring it to their chamber. to recknon over all the crys of poictiers (since they are divers according to the diverse seasons of the year) would be difficult. yet theirs one i cannot forgeet, a poor fellow that goes thorow the toune wt a barrell of wine on his back; in his on hand a glass full halfe wt win; in his other a pint stoop; over his arm hinges a servit; and thus marched he crieng his delicate wine for souse the pot thats our pint; or souse or cheaper it may be. he lets any man taste it that desires, giving them their loof full. i did sy one fellow right angry on a tyme: their came about or about one, every one to taste; giving every one of them some, to neir a chopin[ ] not one of them bought from him; wheiron he sayd he sould sie better marchands before he gave to so many the nixt tyme. [ ] half a pint old french, and also old scots, measure, was equal to about three times the present imperial measure. wood also is a passable commodity heir as in all france, wheir they burn no thing but wood, which seimes indeed to be wholsomer for dressing of meat then coall. every fryday and saturday the peasants brings in multitude of chariots charged wt wood, some of them drawen wt oxen, mo. wt mules, without whilk i think france could not subsist they are so steadable to them. for a chariot weill ladened theyle get or livres, which i remember mr. daillé payed. they have another use for wood in that country also which we know not: they make sabots of them, which the peasants serve themselfes wt instead of shoes; in some account they are better then shoes. they wil not draw nor take in water as shoes whiles do, they being made of one intier lump of wood and that whiles meikle enough. their disadvantage is this none can run wt them, they being loose and not fastened to our feet, yet some weill used wt them can also run in them. they buy them for wery litle money. these also that cannot aspire to ordinar hats (for since we left berwick we saw no bonnets as also no plaids) they have straw hats, one of which theyle buy for souse, and get or moneths wearing out of it. the weather in france heir is large as inconstant as in scotland, scarcely a week goes over wtout considerable raines. i cannot forgett the conditions that madame daillé in sport offered me if i would wait till hir daughter ware ready, and then take hir to wife, that i sould pay no pension all the tyme i stayed in their house waiting on hir. on the of august (being wt the scots the and observed by them in remembrance of gourie conspiracie) came about to be observed _feste de nostre dame_, who hath or fests in the year, as the annuntiation, the conception, hir purification; and this was hir death and assumption day. i went and heard the jesuits preach, a very learned fellow, but turbulent, spurred and hotbrained; affecting strange gestures in his delivery mor beseiming a comoedian then a pulpit man. truly ever since in seing the comoedians act i think i sy him. he having signed himselfe, using the words _in nomine patris, filij_, etc., and parfaited all the other ceremonies we mentioned already, he began to preach. the text was out of some part of esay, thus, _et sepulcrum ipsius erat gloriosum_. he branched out his following discourse unto :-- . the virgines death; . hir assumption. as to hir death he sayd she neided not have undergoon it but give she liked, since death is the wages of sin, _mais nostre dame estoit affranchie de toutes sorte de peché, soit originell, soit actuell_. in hir death he fand priviledges she had above all others: first she died most voluntarly, villingly, and gladly; when to the most of men death's a king of terrors. ndly, she died of no sickness, frie of all pain, languor or angoisse. dly, hir body after death was not capable of corruption, since its absurd to think that that holy body, which carried the lord of glory moneths, layes under the laws of corruption. for thir privelegdes he cited jean damascen and their pope victor. but it was no wonder she putrified no, for she was not dayes in the grave (as he related to us) when she was assumed in great pomp, soul and body, unto heaven, christ meiting hir at heavens port and welcoming hir. he spoke much to establish monstrous merite; laying doune for a principle that she had not only merited heaven, and indeed the first place their, being the princess of heaven; but also had supererogated by hir work for others to make them merit, which works the church had in its treasury to sell at mister.[ ] he made heaven also _a vendre_ (as it is indeed amongs them), but taking himselfe and finding the expression beastly and mercenarie he began to speir, but whow is it to sell, is it not for your _bonnes oeuures_, your penances, repentance, etc. this was part of his sermon. [ ] mister, need. that strachan that was regent at aberdeen and turned papist, i was informed that he was in a society of jesuits at naples. this order ever since it was a order hath bein one of the most pestilent orders that ever was erected, being ever a republick in a republick wheir ever they be; which caused wenice throw them out of hir, and maugre the pope who armed spaine against hir for it holds them out unto this day. they contemne and disdain all the rest of the orders in comparation of themselfes; they being indeed that great nerve and sinew that holds all the popes asustataes[ ] togither; whence they get nothing but hatred again from the other religious, who could wt ease generally sy them all hanged, especially the peres de l'oratoire, who are usually all jansenists, so that ye sall seldome find these orders setled in one city, tho they be at orleans. the jesuits be the subtilist folk that breathes, which especially appears when under the praetext of visitting they fly to a sick carkcass, especially if it be fat, as ravens does to their prey. their insteed of confirming and strenthening the poor folk to dy wt the greater alacrity, they besett them wt all the subtile mines imaginable to wring and suck money from them, telling them that they most leive a dozen or of serviets to the poor cordeliers; as many spoones to the godly capuchines who are busie praying for your soul, and so something to all the rest; but to us to whom ye are so much beholden a goodly portion, which they repeit wery oft over; but all this tends as one the one hand to demonstrate their inexplebible greediness, so one the other to distraict the poor miser wt thoughts of this world and praejudice or defraudation of his air. [ ] apparently from [greek: asustatos], meaning 'ill-compacted forces or elements.' some things are very cheap their. we have bought a quarter a of delicat peirs for a souse, which makes just a groat the hunder. madame daillé also bought very fat geese whiles for souse, whiles , whiles , whiles for ; which generally they blood their, reserving it very carefully and makes a kind of pottages wt it and bread which seimes to them very delicious but not so to me, tho' not out of the principle that the apostles, actes , discharged the gentils to eat blood or things strangled. that which they call their pottage differ exceidingly from ours, wt which they serve themselfes instead of our pottage, as also our broth, neither of which they know. it seems to diffir little from our soups when we make them wt loaves. surely i fand it sensibly to be nourishing meat; and it could not be otherwise, since it consisted of the substance first of the bread, which wtout doute is wholsomer then ours, since they know not what barme is their, or at least they know not what use we make of it, to make our bread firme, yet their bread is as firme wtout it: next the substance of the flech, which usually they put in of sorts, of lard of mouton, of beef, of each a little morsell; dly of herbes for seasoning, whiles keel, whiles cocombaes, whiles leeks, whiles minte or others. in my experience i fand it very loosing, for before i was weill accoustened wt it, if i chanced to sup any tyme any quantity of the pottage, i was sure of or stools afternoon wt it. the french air after the sun setting i learned in my oune experience to be much more dangerous then ours in scotland, for being much more thinner and purer, its consequently more peircing; for even in august their, which is the hotest and warmest moneth, if at night efter a cloak i had sitten doune in my linnens and shirtes to read but halfe a hower or a hower (which i have done in scotland the mides of vinter and not have gotten cold) after the day i was sure to feell i had gotten cold; and that by its ordinary symptomes a peine and throwing in my belly, & or stools; i played this to my selfe tuize or i observed; ever after if i had liked to give my selfe physick i had no more ado but to let my selfe get cold. they let their children suck long heir, usually years; if weak years and a halfe. madame daillé daughter suckt but quatres, they think much to give or livres to nourses for fostering. madame daillé gave crounes in cash and some old cloaths and sick things as they to hir that nursed her daughter, a peasants wife whom i saw. the gossips and commers[ ] heir give nothing as they do in scotland, save it may be a gift to the child. [ ] godmothers, _commères_. i have called my selfe to mind of a most curious portrait that we saw in richeliew castle, the description wheirof by reason its so marvelously weill done sall not be amiss tho it comes in heir _postliminio_ to insert. on the walls theirfor of one of the chambers we saw is drawen at large the emblem of the deluge or universall floud, in one corner of it i discovered men wt a great deall of art swiming (for the world is drawen all over covered wt waters, the catarracts of the heavens are represented open, the water deschending _guttatim_ so lively that til a man recall himselfe and wiew it narrowly hel make a scrupule to approach the broad[ ] for fear of being wett), and that wt a bensill[ ] their course being directed to a mountain which they sy at a distance; which is also drawen. painters skill heir hes bein such, that a man would almost fancy he hears the dine the water makes wt their strugling and striking both hands and feet to gaine that mountaine. just besydes thies are laying dead folke wt their armes negligently stretched out, the furious wawes tossing them terribly, as a man would think, some of them laying on their back, some of them on their belly, some wheirof nothing is to be sein but their head and their arme raxed up above their head. amongs those that are laying wt their face up may be observed great diversity of countenances, some wt their mouth wide open and their tongue hinging out, some glooring,[ ] some girning,[ ] some who had bein fierce and cruell during their life, leiving legible characters in their horrible and barbarous countenances. in another part of the broad is to be sein all sorts of creatures confusedly thorow other, notwtstanding of that naturell antipathy that is betuixt some of them, as the sheip and the wolf, the crocodile and lizard, etc.; ther may we sy the wawes peele mel swallowing up wolfes and sheip, lions and buls, and other sorts of beasts. remove your eyes to another corner, and their yeel sy great tries torn up by the roots, and tost heir and their by the waves; also hie strong wales falling; also rich moveables, as brave cloaths and others, whiles above and whiles beneath; and go a litle wy farder yeel sie brave tower which at every puft of wind give a rock, the water busily undermining its foundation. a little way from that ye have to admiration, yea, to the moving of pity, draweu women wt their hair all hinging disorderly about their face, wt their barnes in their armes, many a mint[ ] to get a clift of a craig to save themselfes and the child to, some of them looking wt frighted countenances to sy give the waves be drawing neir them. in a nother ye have a man making a great deall of work to win out, hees drawen hinging by the great tronc of a try. at his back is drawen another that claps him desperatly hard and fast by the foot, that if he win out he may be drawen out wt him. its wonderfull to sy whow weill the sundry passions of thir , the anger of him who hes a grip of the trunck, and the trembling fear of him who hes his neighbour by the foot are expressed; and what strugling they make both, the one to shake the other loose of his gripes, the other to hold sicker, and this all done so weill that it occasions in the spectateurs as much greife in beholding it as they seim to have who are painted. finaly, the painter hath not forgot to draw the ark it selfe floting on the waters. [ ] panel. [ ] strenuous effort. [ ] staring. [ ] grinning (like a child crying). [ ] mint, attempt. on a night falling in discours wt some or frenchmen of magick and things of that nature, i perceaved it was a thing wery frequent in france, tho' yet more frequent in italy. they told me seweral stories of some that practized sorcery, for the most part preists who are strangely given to this curiosity. they told of one who lived at chateleraut, who, when he pleased to recreat himselfe, would sit doune and sett his charmes a work, he made severalls, both men and women, go mother naked thorow the toune, some chanting and singing, others at every gutter they came to taking up the goupings[ ] of filth and besmeiring themselfes wt it. he hath made some also leip on horseback wt their face to the horse taill, and take it in their teeth, and in this posture ride thorow all the toune. [ ] handfuls. ware their not a comoedian at orleans who used to bring us billets when their ware any comoedies to be acted, who offered for a croune to let us sy what my father and mother was doing at that instant, and that in a glasse, i made my selfe as wery angry at him, telling him that i desired not to know it by such means. on that he gott up the laughter, demanding if i thought he had it be ill means; for his oune part he sayd he never saw the dewill. not only is it usuall heir to show what folkes are doing tho ther be miles distant; but their[ ] also that will bring any man or woman to ye if ye like, let them be in the popes conclave at rome; but incontrovertably its the devill himselfe that appeires in this case. the tricks also of robbing the bride groomes of their faculty that they can do nothing to the wives is very ordinar heir; as also that of bewitching gentlewomen in causing them follow them lasciviously and wt sundry indecent gestures; and this they effectuat sometymes by a kind of pouder they have and mix in amongs hir wine; some tymes by getting a litle of hir hair, which they boill wt pestiferous herbs; whilk act when its parfaited the women who aught the hair will come strangely, let hir be the modestest woman in europe, wheir the thing is doing, and do any thing the persones likes. [ ] their = there are. plumes are in wery great abondance heir, and that of many sorts. we have bein offered the quatrain, thats of plumes, wery like that we call the whitecorne, tho' not so big, for deniers or a double, thats for penies the ; and they sel them cheaper. great is the diversity amongs peirs their. mr. daillé hath told me that at least theirs several sorts of peirs that grows in france, al distinguasble be the tast. we ourselfes have sien great diversity. theirs a wery delicious sort of poir they call the _poir de rosette_, because in eating it ye seime as give ye ware smelling a rose. they have also among the best of the peirs _poir de monsieur_, and _de madame_. they have the _poir de piss_, the _poir blanchette_ (which comes wery neir our safron peer we have at home), and _trompe valet_, a excelent peir, so called because to look to ye would not think it worth anything, whence the valets or servants, who comes to seik good peirs to their masters, unless they be all the better versed, will not readily buy it, whence it cheats them. they distinguise their peires into _poirs de l'esté de l'automne_, and _de l'yver_, amongs whilk theirs some thats not eatable til pais or pasque. in the gazetts or news books (which every friday we get from the fullions[ ] or bernardines at their convent, such correspondence does the orders of the country keip wt thess at paris), we heard newes passing at home. the place they bring it from they terme it barwick, on the borders of scotland. we heard that the of may, our soverains birth day, was solemly keipt by the magistrates of edinburgh and the wholle toune. at another tyme we heard of a act of our privy counsill, inhibiting all trafic whatsoever wt any of the places infected wt the plague. in another we heard of a breach some pirates made in on our northren iles, setting some houses on fire; on whilk our privy counsell by a act layd on a taxation on the kingdome, to be employed in the war against the hollanders, ordaining it to be lifted wtin the years coming. [ ] fullions, feuillants, 'nom de religieux réformés de l'ordre de citeaux, appelés en france feuillants, et en italie réformés de st. bernard... etym., notre-dame de feuillans, devenue en le chef de la congrégation de la plus étroite observation de citeaux ... en latin, beata maria fuliensis, fulium dicta a nemore cognomine, aujourd'hui bastide des feuillants, haute garonne.'-- littré, _dict_. s.v. tho the french are knowen and celebrated throwghout the world for the civility, especially to strangers, yet i thought wonderfull to perceive the inbreed antipathy they carry against the spaniard. that i have heard it many a tyme, not only from mr. daillé, but from persons of more refined judgements then his, yea even from religious persones, that they had not no civility for a spaniard, that not one of a of them is welcoome. i pressing whence this might come to passe that they so courteously receaving all sortes of strangers, be they scots, english, germans, hollanders, or italians, and that they had none of this courtoisie to spare for a spaniard, they replied that it came to pass from the contrariety of their humeurs; that the french ware franck (whence they would derive the name of their nation), galliard, pleasant, and pliable to all company; the spaniard quite contrary retired, austere, rigid, proud. and indeed their are something of truth in it; for who knows not the pride of the castilian: if a castilian then a demigod. he thinks himselfe _ex meliore luto natus_ then the rest of the world is. its a fine drollery to sie a frenchman conterfit the castilian as he marches on his streets of castile wt his castilian bever cockt, his hand in his syde, his march and paw[ ] speaking pride it selfe. who knows not also that mortell feud that the castilian carries to the portugueze and the portuegueze reciprocally to them, and whence this i beseich you if not from the conceit they have of themselfe. this minds me of a pretty story i have heard them tell of a castilian who at lisbon came into a widows chop to buy something. she was sitting wt her daughter; the lass observing his habit crys to her mother, do not sell him nothing, mother, hees a castilian, the mother chiding her daughter replied, whow dare you call the honest man a castilian; on that tenet they hold that a castilian cannot be a honest man. i leive you to ghesse whether the daughters wipe or the mothers was tartest. [ ] paw = _pas_. howell (as i remember) in a letter (its in the first volume, letter ) he writes from lyons, he findes the rivers on which that brave city (for its situation yeelding to none in europe, not to london tho' on lovely thames) standes on, to wit the rhosne and the sosne, to be a pretty embleme of the diversity thats betuixt the humeurs of thess mighty nations (france and spain), who deservedly may be termed the axletrees or poles on which the microcosme of europe turnes. its theirfor wery much in the concernement of the rest of europe to hold their poles at a even balance, lest the one chancing at lenth to wieght doune the other there be no resisting of him, and we find ourselfes wise behind the hand. looking again on the rhosne, which runes impetuously and wiolently, it mindes him of the french galliardness and lightness, or even inconstancy. looking again on the sosne, and finding it glid smoothly and calmly in its channel, its mindes him (he sayes) of the rigid gravity the spaniard affected. and to speak the truth, this pride and selfe conceetedness is more legible in the spaniard than in the french, yet if our experience abuse us not, we have discovered a great tincture of it in the french. that its not so palpable amongs them as in the spaniard we impute to that naturall courtoisie and civility they are given to, that tempers it or hides it a little, being of the mind that if the spaniard had a litle grain of the french pleasantness, the pride for which we tax them sould not be so apparent. yet we discovered a beastly proud principle that we have observed the french from the hiest to the lowest (let him be never so base or so ignorant) to carry about wt them, to wit, that they are born to teach all the rest of the world knowledge and manners. what may be the mater and nutrix of this proud thought is not difficult to ghess; since wtout doubt its occasioned by the great confluence of strangers of all sorts (excepting only the italian and spaniard, who think they have to good breeding at home to come and seik it of the french) who are drawen wt the sweitness of the country, and the common civility of the inhabitants. let this we have sayd of the french pass for a definition of him till we be able to give a better. about the beginning of september at poictiers, we had the newes of a horrid murder that had bein perpetrat at paris, on a judge criminell by tuo desperat rascalls, who did it to revenge themselfes of him for a sentence of death he had passed against their brother for some crime he had committed. his wife also, as she came in to rescue hir husband, they pistoled. the assassinats ware taken and broken on the wheell. he left million in money behind him, a terrible summe for a single privat man, speaking much the richness of paris. the palais at poictiers (which with us we call the session) raises the saturday of september, and sittes doune again at martimess. we remember that in our observations at orleans we marked that the violent beats heir procures terrible thunders and lightnening, and because they are several tymes of bad consequence, the thunder lighting sometymes on the houses, sometymes on the steeples and bells, levelling all to the ground, that they may evite the danger as much as they can they sett all the bells of the city on work gin goon.[ ] [ ] ding dong. a man may speir at me what does the ringing of the bells to the thunder. yes wery much; for its known that the thunder is partly occasioned by the thickness, grossness, impuritude, crassitude of the circumambient air wt which the thunder feides itselfe as its matter. now im sure if we can dissipate and discusse this thickness of the air which occasiones the thunder, we are wery fair for extinguishing the thunder itselfe according to the axioma, _sublata causa tollitur effectus_, whilk maxime tho it holds not in thess effect which dependes not on the cause _in esse_ and _conservari_ but only in _fieri_: as _filius, pater quidem est eius causa; attamen eo sublato non tollitur filius quia nullo modo dependet filius a patre sive in esse sive in conservari: solum modo ab eo dependet ut est in fieri_. yet my axiome is good in this present demonstration, since the thunder dependes on this grossenese of the air, not only in its _fieri_, but even in its _esse_ and _conservari_. but weill yeell say, let it be so, but what influence has the ringing of the bells to dissipat this grosseness: even wery much: for the sound and noice certainly is not a thing immateriall; ergo it most be corporeall: since theirfor wt the consent of the papists themselfes _duo corpora non possunt se penetrare aut esse in codem loco nuturaliter_, its consequentiall that the sound of the bells as it passes thorow the circumambient air to come to our ears and to pass thorow all the places wheir it extends its noice makes place for it selfe by making the air yeeld that stands in its way; whence it rarifies and purifies the air and by consequence disipates the crassities of the air, which occasions the thunder. that the noice thats conveyed to our ears is corporeall and material be it of bels or of canons is beyond controversy, since _sonus_ is _obiectum sensûs corpori, ut auditus: at objectum rei corporcae oportet esse corporeum: cum incorporea sub sensibus naturaliter non cadunt_. i adde _naturaliter_, because i know _super naturaliter in beatificá visione deus quodammodo cadet sub sensibus ut glorificatus_, according to that of jobs with thir same wery eyes sall i see my redeimer: yea not only is _sonus quid materiale_, but further something much more grossely material then the objects of the rest of the senses, as for instance in the discharging of a canon being a distance looking on we would think it gives fire long before it gives the crack, tho in wery truth they be both in the same instant. the reason then whey we sie the fire before we hear the crack is because the _species wisibiles_ that carries the fire to our eyes, tho material are exceeding spirituall and subtill and are for that soon conveyed to our sight: when the _species audibiles_ being more gross takes a pitty tyme to peragrate and passe over that distance that is betuixt us and the canon, or they can rendre them selfes to the organ of our hearing. but let us returne, we are informed that in italy, wheir thunders are bothe more frequent and more dangerous then heir, they are wery carefull not only to cause ring all their bells, but also to shoot of their greatest cannons and peices of ordonnances and that to the effect mentioned. i am not ignorant but the papists feignes and attributes a kind of wertue to the ringing of bells for the chassing away of all evill spirits if any place be hanted or frequented wt them. yet this reason cannot have roome in our case, since ther are few so ignorant of the natural causes of thunder as to impute it to the raging of ill spirits in the air, tho the mr. of ogilvy at orleans, who very wilfully whiles would maintain things he could not maintain, would not hear that a natural cause could be given of the thunder, but would impute it to evill spirits. i do not deny but the devils wt gods permission may occasion thunders and other tempests in the air, but what i aime at is this, they never occasion it so, but they make use of natural means; for who is ignorant but the meteorologists gives and assignes all the causes of it its efficient, its materiall, its formall and its finall. i cannot forget the effect i have sein the thunder produce in the papists. when they hear a clap coming they all wery religiously signe theyr forfronts and their breast wt the signe of the cross, in the wertue of which they are confident that clap can do them no scaith. some we have sein run to their beads and their knees and mumble over their prayers, others away to the church and doune before the altar and blaither anything that comes in their cheek. they have no thunders in the winter. discoursing of the commodityes of sundry nations transported to france, their ordinar cxpression is, that they are beholden to scotland for nothing but its herrings, which they count a wery grosse fish no wayes royall, as they speak, thats, not for a kings table. as for linnen, cloath and other commodities the kingdome affords, we have litle more of them then serves our oune necessity. i was moneth in france before i saw a boyled or roasted egge. their mouton is neither so great nor so good heir as its at home. the reason of which may be the litle roome they leive for pasturage in the most parts of france. they buy a leg heir for souse, whiles souse. on the of august came about st. bernard, abbot of clarevill,[ ] his day, who founded the order of the foullions[ ] or bernardines, whence we went that afternoon to their convent and heard one of the order preach his panygyrick, but so constupatly that the auditory seweral tymes had much ado to keip themselfes from laughting. [ ] clairvaux. [ ] see p. , note. on the of the samen ditto was keipt the aposle st. bartholemewes day: the morrow, , st. lowis, king of france, his day, a great feste, and in that city the festivall day of the marchands (for each calling hes its particular festivall day: as the taylors theirs, the sutors theirs, the websters thers, and so furth). every trade as their day comes about makes a sort of civil procession thorow all the streets of the toune. instead of carrieng crosses and crucifixes, according to the custome of the place, they carry, and that on the shoulders of of the principal of the trade, a great farle of bread, seiming to differ nothing from the great bunes we use to bake wt currants all busked wt the fleurs that the seasone of the year affordes, and give in winter then wt any herbe to be found at the tyme; and this wt a sort of pomp, or drummers going before and as many pipers playing; the body of the trade coming behind. to returne, tho this day was the feste of the marchands, yet i observed they used not the ceremomy before specified, looking on it as dishonorable and below them. this day we went to the jesuits church and heard one of the learnedest of the augustinians preach, but tediously. the nixt feste was the of septembre, _nativité de nostre dame_. on which i went and heard our comoedian the jesuit preach hir panegyrick and his oune valedictory sermon (for they preach moneth about, and he had ended his tower[ ]). he would have had us beleiving that she was cleansed from the very womb from that wery sin which all others are born wt, that at the moment of hir conception she receaved a immense degrie of grace infused in her. if he ware to draw the horoscope of all others that are born he would decipher it thus, thou sal be born to misery, angoiss, trouble and vexation of spirit, which, on they wery first entering into this walley of tears, because thou cannot tell it wt they tongue thou sal signify by thy weiping. but if i ware, sayes he, to cast our charming ladies horoscope i would have ascertained then, that she was born for the exaltation of many, that she [was] born to bear the only sone of god, etc. [ ] tour, turn the sone he brought in as the embleme of justice ever minding his father of his bloody death and sufferings, to the effect that he take vengeance for it even on thess that crucifies him afresh. the mother he brought on the stage as the embleme of mercy, crying imperiously, _jure matris_, i inhibite your justice, i explode your rigor, i discharge your severity. let mercy alone triumph. surely if this be not blasphemy i know not whats blasphemie. to make christ only justice fights diamettrally[ ] wt the aposle john, if any man hath sinned he has a advocat with the father. christ the righteous, he sayes, is not christ minding his father continualy of this passion; its true, but whey; to incite god to wrath, sayes he. o wicked inference, horrid to come out of the mouth of any christian save only a jesuites. does not the scripture language cut thy throat, o prophane, which teaches us that christ offereth up to his father his sufferings as a propitiatory sacrifice; and consequently to appaise, not to irritate. [ ] diametrically. the word is indistinctly written. his inference at lenth was thus: since the business is thus then, messieurs, mesdames, mon cher auditoire, yeel do weill in all occassion to make your address to the virgin, to invock hir, yea definitivly i assert that if any of you have any lawfull request if yeel but pray dayes togither once every day to the virgin ye sal wtout faill obtain what you desire. on whilk decision i suppose a man love infinitly a woman who is most averse from him, if he follow this rule he sall obtaine hir. but who sies not except thess that are voluntary blind whow rash, inconsiderat, and illgrounded thir decisions are, and principally that of invocking the virgin, since wtout doubt its a injury to christ, whom we beleive following the scripture to be the only one mediator betwixt god and man. also, i find christ calling us to come to him, but never to his mother or to peter or paull. it will not be a unreasonable drollery whiles to counterfit our regent, mr. james,[ ] if it be weill tymed, whow when he would have sein any of his scollers playing the rogue he would take them asyde and fall to to admonish them thus. i think you have forgot ye are _sub ferula_, under the rod, ye most know that im your master not only to instruct you but to chastize you, and wt a ton[ ] do ye ever think for to make a man, sir; no, i promise you no. [he killed kincairnes father by boyling the antimonian cup, which ought only to seep in.][ ] _inter bonos bene agier_.[ ] when any plead a prate[ ] and all denied it, i know the man, yet _neminem nominabo_, honest cicero hes learned me that lesson. [ ] i have not discovered who mr. james was. [ ] 'wt a ton' is possibly 'with a tone,' i.e. raising his voice. [ ] interlined. [ ] _agier_ for _agere_. [ ] played a trick. we cannot forgett also a note of a ministers (called mr. rob. vedderburne) preaching related me by robert scot which happened besyde them. god will even come over the hil at the back of the kirk their, and cry wt a hy woice, angel of the church of maln[moon]sy, compeir; than ile answer, lord, behold thy servant what hes thou to say to him. then god wil say, wheir are the souls thou hest won by your ministery heir thir years? he no wal what to answer to this, for, sirs, i cannot promise god one of your souls: yet ile say, behold my own soul and my crooked bessies (this was his daughter), and wil not this be a sad matter. yet this was not so ill as mr. john elies note of a minister was, who prayed for the success of the kings navy both by sea and be land. the very beggers in france may teach folk thrift. ye sall find verie few women beggers (except some that are ether not working stockings, or very old and weak) who wants[ ] their rock in their bosome, spining very busily as they walk in the streets. [ ] wants = have not. the french, notwtstanding all their civility, are horridly and furiously addicted to the cheating of strangers. if they know a man to be a stranger or they cause him not pay the double of what they sell it to others for, theyl rather not sell it at all, which whither it comes from a malitious humour or a greedy i cannot determine, yet i'm sure they play the fooll in it, for tho they think a stranger wil readily give them all they demand, or if he mint to go away that he'el come again; yet they are whiles mistaken. many instances we could give of it in our oune experience, al whilk we sall bury at this tyme, mentioning only one of patrick humes, who the vinter he was at poictiers, chancing to get the cold, went to buy some sugar candy. demanding what they sold the unce of it for, they demanded souse, at last came to , vould not bat a bottle;[ ] wheirupon thinking it over dear he would have none of it, but coming back to mr. alex'rs he sent furth his man, directing him to that same wery chop, who brought him in that for souse which they would not give him under . that story may pass in the company of one that understandes french, of the daughter who was sitting wt her mother at the fire, wt a great sigh cried, '_o que je foutcrois._ the mother spearing what sayes thou, she replied readily, _o que je souperois_. [ ] bate a bodle. on september arrived heir englishmen from orleans, who brought us large commendations from mr. ogilvie their, who desiring to sy the toune, i took them first up to the steeple of the place, which being both situat on a eminence and also hy of it selfe gave us a clear survey of the whole toune. we discovered a great heap of wacuities filled up wt gardens and wines, and the city seimed to us like a round hill, the top of it and all the sydes being filled wt houses. and to our wiew it seimed not to have many mo houses then what we had discovered at orleans, for their we thought we saw heir one and their one dispersed. at orleans we would think they lay all in a heap (lump).[ ] from thence, not desiring but that they sould find the scots as civil and obligding as any, we was at the paines to take them first to the church of nostre dame la grande, on the wall of which that regardes the place standes the statue of the empereur constantine, _a cheval_, wt a sword in his hand. from thence to ste. radegondes, wheir we showed them hir _tombeau_; from that to st. croix, wheir we showed them the _empressa_ of christs foot, of which we spake already; and from that to st. peters, which we looked all on as a very large church, being paces broad. [ ] interlined. in the afternoon we went to the church of st. hilaire, wheir at a distance we discovered the scots walk; so called because when the englishes ware beseiging the toune a regiment of scotsmen who ware aiding the french got that syde of the toune to garde and defend, who on some onset behaving themselfes gallantly the captain got that great plot of ground which goes now under that name gifted him by the toune, who after mortified to a nunnery neir hand, who at present are in possession of it. the church we fand to smell every way of antiquity. heir we saw first that miraculous stone (of which we also brought away some relicts) which if not touched has no smell, if rubed hard or stricken wt a key or any other thing, casteth a most pestilentious, intollerable smell, which we could not indure. we tried the thing and fand it so. the occasion and cause of this they relate wariously. some sayes that the stone was a sepulchre stone, and under it was buried a wicked man that had led a ill life, whos body the dewill came on a tyme and carried away; whence the stone ever stinks in that maner since. others say that when the church was a bigging, the dewill appeared to one of the maisons, in the signe [shape][ ] of a mulet and troubled him; wheirupon the maison complained to st. hilaire the bischop, who watched the nixt day wt the maison, and the dewill appearing in that shape he caused take him and yoke him in a cart to draw stones to the bigging of the church. they gott him to draw patiently that great stone which we saw and which stinks so, but he got away and would draw no more. [ ] interlined. nixt we saw st. hilaires _berceau_, wheirin they report he lay, a great long peice of wood hollowed (for it wil hold a man and i had the curiosité to lay in it a while) halfe filled wt straw that they may lay the softer. to this the blinded papists attributes the vertue of recovering madmen or those that are besydes themselfes to their right wites, if they lay in it dayes and nights wt their handes bound, a priest saying a masse for them once every day. and indeed according to the beleife of this place it hath bein oft verified. the fellow that hes a care of thess that are brought hither told us of a mademoisselle who was extraordinarly distracted and who was fully recovered by this means. another of a gentleman who had gone mad for love to a gentlewoman whom he could not obtaine, and who being brought their in that tyme recovered his right wits as weill as ever he had them in his dayes. its commonly called the _berceau de fols_; so that heir in their flitting they cannot anger or affront one another worse then to cast up that they most be rockt in st. hilaires cradle, since its none but fools or madmen that are used so. the greatest man in the province of poictou is the governour, who in all things representes the king their, save only that he hath not the power to pardon offenders or guilty persones. tho a man of wast estat, to wit of , livres a year, yet he keips sick a low saile[ ] that he wil not spend the thrid of his rent a year, only a pitty garde or or persons on foot going before his coach; and or lacquais behind; yea he sells vin, which heir is thought no disparadgement to no peir of france, since theirs a certain tym of the year that the king himselfe professes to sell win, and for that effect he causes at the louwre hing out a bunch of ivy, the symbol of vin to be sold. [ ] lives so quietly. the king also playes notably weill on the drum, especially the keetle drumes, thinking it no disparagdement when he was a boy to go thorow paris whils playing on the drum, whiles sounding the trumpet, that his subjects may sie whow weill hes wersed in all these warlike, brave, martiall excercises. the invention of the keetle drume we have from the germans who makes great use of it. the father of this present king also, lowis the , could exactly frame and make a gun, and much more a pistol, with all the appartenances of it, as also canons wt all other sort of artillerie; for he was a great engineer. there are amongs the french nobility some great deall richer then any subject of our kings; for the greatest subject of the king of englands is the duc of ormond, or the earle of northumberland, nether of which tho hath above , pounds sterling, which make some , livres in french money, which is ordinar for a peir in france. the last of which, to wit, my lord northumberland, by reason of that great power and influence he hath in the north of england, his oune country, the parliament of england of old hath found it not a miss to discharge him the ever going their, and that for the avoiding and eviting of insurrectiones which, if he ware amongs them, he could at his pleasure raise. surely this restraint neids not be tedious to him since he is confined in a beautiful prison, to wit, london; yea he may go thorow all the world save only northumberland, he may come to scotland whilkes benorth northumberland be sea.[ ] it may be it might be telling scotland that by sick another act they layd a constrainct on that house of huntly, the cock of the north. if so, the french jesuits sould not have such raison to boast (as we have heard them), and the papists sould not have so great footing in the north as they have. [ ] i have not traced the authority for this statement. we most not forgett the drolleries we have had wt our host mr. daillé when i would have heard him at the _gardé robe_, to sport my selfe whiles, i would have come up upon him or he had bein weill begun and prayed him to make hast by reason i was exceedingly straitned when they would have bein no such thing, wheiron he would have raisen of the stooll or he had bein halfe done and up wt his breecks, it may be whiles wt something in them. in our soups, which we got once every day, and which we have descryved already, such was madames frugality that the one halfe of it she usually made of whiter bread, and that was turned to my syde of the board, the other halfe or a better part she made of the braner, like our rye loaves, and that was for hir and hir husband. the bread ordinarly used heir they bake it in the forme of our great cheeses, some of them pence, others souse, others for . thess for souse are as big again as our penie loaves, and some of them as fine. there comes no vine out of france to forreine country, save that which they brimstone a litle, other wise it could not keip on the sea, but it would spoil. its true the wine works much of it out againe, yet this makes that wine much more unwholsome and heady then that we drink in the country wheir it growes at hand. we have very strick laws against the adulterating of wines, and i have heard the english confess that they wished they had the like, yet the most do this for keiping of it; yea their hardly wine in any cabaret of paris that is otherwise. hearing a bel of some convent ringing and ronging on a tyme in that same very faschion that we beginne our great or last bel to the preaching, i demanding what it meint, they told me it was for some person that was expiring, and that they cailed it _l'agonie_. that the custome was that any who ware at the point of death and neir departing they cause send to any religious house they please, not forgetting money, to ring a agonie that all that hears, knowing what it means, to wit, that a brother or sister is departing, may help them wt their prayers, since then they may be steadable, which surely seimes to be wery laudable, and it nay be not amiss that it ware in custome wt us. the church of england hath it, and on the ringing any peaple that are weill disposed they assemble themselfes in the church to pray. in france also they ring upon the death of any person to show the hearers, called _le trespas_, that some persone is dead. the same they have in england, wt which we was beguiled that night we lay at anick, for about howers of the morning the toune bel ronging on the death of one richard charleton, i taking it to be the howers bel we rose in hast, on wt our cloaths, and so got no more sleip that night. their was nothing we could render mr. daillé pensive and melancholick so soon wt as to fall in discourse of mr. douglas. he hes told me his mind of him severall tymes, that he ever had a evill opinion of him; that he never heard him pray in his tyme; all month he was wt him, he was not or tymes at quatre piquet [the church],[ ] and when he went it was to mock; that he was a violent, passionate man; that he spak disdainefully of all persones; that he took the place of all the other scotsmen, that he had no religion, wt a sick like. [ ] interlined. its in wery great use heir for the bridegroomes to give rich gifts to the brides, especially amongs thess of condition; as a purse wt a pistols in it, and this she may dispose on as she pleaseth to put hir selfe bravely in the faschion against hir marriage. we have heard of a conseillers sone in poictiers who gave in a burse livres in gold. yet i am of the mind that he would not have bein content if she had wared all this on hir marriage cloaths and other things concerning it, as on bracelets and rings. the parents also of the parties usually gives the new married folk gifts as rich plenishing, silver work, and sicklike. in parties appealls heir from a inferior to a superior, if it appear that they ware justly condemned, and that they have wrongously and rashly appealed, they condeime them unto a fine called heir amende, which the judge temperes according to the ability of the persones and nature of the businesse: the fine its converted ether to the use of the poor or the repairing of the palais. the jurisdiction of thess they call consuls in france is to decide controversies arising betuixt marchand and marchand. their power is such that their sentence is wtout appeall, and they may ordaine him whom they find in the wrong to execute the samen wtin the space of howers, which give they feill to do they may incarcerate them. thus j. ogilvie at orleans. even the wery papists heir punisheth greivously the sine of blasphemy and horrid swearing. mr. daillé saw him selfe at bordeaux a procureurs clerk for his incorrigibleness in his horrid swearing after many reproofes get his tongue boored thorow wt a hot iron. the present bischop of poictiers is a reasonable, learned man, they say. on a tyme a preist came to gett collation from him, the bischop, according to the custome, demanding of him if he know latin, if he had learned his rhetorick, read his philosophy, studied the scooll divinity and the canon law, etc., the preist replied _quau copois_,[ ], which in the dialect of bas poictou (which differes from that they speak in gascoigne, from that in limosin, from that in bretagne, tho all be but bastard french) signifies _une peu_. the bischop thought it a very doulld[ ] answer, and that he bit to be but a ignorant fellow. he begines to try him on some of them, but try him wheir he will he findes him better wersed then himselfe. thus he dismissed him wt a ample commendation; and severall preists, efter hearing of this, when he demanded if they had studied sick and sick things, they ware sure to reply _cacopois_. he never examined them further, crying, go your wayes, go your wayes, they that answers _cacopois_ are weill qualified. [ ] perhaps _quelque peu_. [ ] stupid, from doule, a fool. we have sein sewerall english books translated in french, as the practise of piety, the late kings [greek: eikon basilikae], sidneyes arcadia, wt others. we have sein the plume whilk they dry and make the plumdamy[ ] of. [ ] dried plum, prune. the habit of the carmelites is just opposite to that of the jacobines,[ ] who goe wt a long white robe beneath and a black above. the carmes wt a black beneath and a white above. the augustines are all in black, the fullions all in white. [ ] jacobins, dominicans, so called from the church of st. jacques in paris, granted to the order, near which they built their convent. the convent gave its name to the club of the jacobins at the french revolution, which had its quarters there. its very rare to sy any of the women religious, they are so keipt up, yet on a tyme as i was standing wt some others heir in the mouth of a litle lane their came furth nunnes, in the name of the rest, wt a litle box demanding our charity. each of us gave them something: the one of them was not a lass of years. mr. daillé loves fisch dearly, and generally, i observe, that amongs frenchmen their sall be that wil præfer fisch to flech, and thinks the one much more delicat to the pallate then the other. the fisch they make greatest cont of are that they call the sardine, which seimes to be our sandell, and which we saw first at saumur, and that they call _le solle_, which differs not from our fluck[ ] but seimes to be the same. the french termes it _le perdrix de la mer_, the patridge of the sea, because as the pertridge is the most delicious of birds, so it of fisches. mr. daillé and his wife perceaving that we cared not for any sort of fisches, after they would not have fisches once in the moneth. [ ] flounder. we cannot forget a story or we have heard of capuchines. on a tyme as a capuchin, as he was travelling to a certain village a little about a dayes journy from poictiers, he rencontred a gentlemen who was going to the same place, whence they went on thegither. on their way they came to a little brook, over which their was no dry passage, and which would take a man mid leg. the capuchin could easily overcome this difficulty for, being bare legged, he had no more ado but to truce up his gowen and pass over; the gentleman could not wt such ease, whence the capucyn offers to carry him over on his back. when he was in the mides of the burn the capucyn demanded him if he had any mony on him. the man, thinking to gratify the capucyn, replied that he had as much as would bear both their charges. wheiron the capucyn replied, if so, then, sir, i can carry you no further, for by the institution of our order i can carry no mony, and wt that he did let him fall wt a plasch in the mides of the burn. _quoeritur_, whither he would have spleeted[ ] on the regular obedience of their order if he carried the man having mony on him wholly throw the water. [ ] split, spleeted on, departed from. at another tyme a capucyn travelling all alone fand a pistoll laying on the way. on which arose a conflict betuixt the flesch and the spirit, that same man as a capuchin and as another man. on the one hand he reasoned that for him to take it up it would be a mortell sine; on the other hand, that to leive it was a folly, since their was nobody their to testify against him. yet he left it, and as he was a litle way from it the flesch prevailed, he returned and took it up, but be a miracle it turned to a serpent in his hand and bit him. enquiring on a tyme at madame daillé and others whow the murders perpetrate by that fellow that lived at the port st. lazare came to be discovered, i was informed that after he had committed these villanies on marchands and others for the space of years and above, the house began to be hanted wt apparitions and spirits, whence be thought it was tyme for him to quatte it, so that he sould it for litle thing, and retired to the country himselfe. he that had bought the house amongs others reformations he was making on it, he was causing lay a underseller wt stone, whilk while they are digging to do, they find dead bodies, which breeds suspicion of the truthe, wheirupon they apprehend him who, after a fainte deniall, confesses it; and as they are carrieing him to paris to receave condigne punishment, they not garding him weell, some sayes he put handes in himselfe, others that his complices in the crime, fearing that he might discover them, to prevent it they layd wait for him and made him away by the way, for dead folk speaks none. on the of septembre parted from this for paris of our society, mr. patrick, david and alex'r humes, wt colinton. we that ware left behind hired horses and put them the lenth of bonnévette, leagues from poictiers (it was built by admiral chabot[ ] in francis the firsts time, and he is designed in the story admirall de bonnivette). by this we bothe gratified our commorades and stanched our oune curiosity we had to sie that house. it's its fatality to stand unfinished; by reason of whilk together wt its lack of furniture it infinitly comes short of richelieu. it may be it may yeeld nothing to it in its bastiments, for its all built of a brave stone, veill cut, which gives a lustre to the exterior. yet we discovered the building many wayes irregular, as in its chimlies, on the one side and but on the other. that same irregularity was to found in the vindows. in that which theirs up of it theirs roome to lodge a king and his palace. al the chambres are dismantled, wtout plenishing save only one in which we fand som wery weill done pictures, as the present kings wt the queens, cardinal mazarin's (who was a sicilian, a hatmakers sone) and others. the thing we most noticed heir was a magnifick stair or trumpket most curiously done, and wt a great deall of artifice, wt great steps of cut stone, the lenth of which i measured and fand foot. i saw also a very pretty spatious hall, which made us notice it, and particularly colinton, who told me that colinton hous had not a hall that was worth, whence he would take the pattern of that. we fand it thre score foot long, and iust the halfe of it broad, thats to say . above the chimly of the roome are written in a large broad the commandements. [ ] philippe de chabot, amiral de brion. guillaume gouffier, amiral da bonnivet, was another of francis i's admirals. heir we bade adieu to our commorads, they forward to micbo that night, leagues beyond bonnevette, to morrow being to dine at richelieu and lay at loudun; we back to poictiers. its like that we on their intreaties had gone forward to richelieu if we had bein weill monted; but seing us all so ill monted it minded us of that profane, debaucht beschop lesly, who the last tyme the bischops ware in scotland (when spootswood was archbischop) was bischop of the isles. he on a tyme riding with the king from stirveling to edinburgh he was wery ill monted, so that he did nothing but curse wtin him selfe all the way. a gentleman of the company coming up to him, and seing him wt a wery discontented, ill looking countenance demanded, whow is it, whow goes it wt you, my lord? he answered, was not the dewill a fooll man, was he not a fooll? the other demanding wheirin, he replied, if he had but sett job on the horse i am on, he had cursed god to his face. let any man read his thoughts from that. the richness of france is not much to be wondred at, since to lay asyde the great cities wt their trafficks, as tours in silkes. bordeaux wt holland wares of all sorts, marseilles wt all that the levant affordes, etc., their is not such a pitty city in france which hath not its propre traffick as partenay[ ] in its stuffes, chatteleraut in its oil of olives, its plumdamies and other commodities which, by its river of vienne, it impartes to all places that standes on the loier. [ ] a town in poitou. in france heir they know not that distinction our civil law makes betuixt tutors and curators, for they call all curators, of which tho they have a distinction, which agries weill wt the civil law, for these that are given to on wtin the age of they call _curateurs au persones et biens_, which are really the justinianean tutors who are given _principaliter ad tuendam personam pupilli_ and _consequenter tantum res_; thes that [are] given to them that are past their , but wtin their , they call _curateurs du causes_, consequentialy to that, _quod curatores certoe rei vel causoe dari possunt_, and wtout the auctority of thir the minors can do nothing, which tends any wayes to. the deteriorating their estat, as selling, woodsetting or any wayes alienating. what concernes the consent of parents in the marriage of their children, the french law ordaines that a man wtin the age of , a woman wtin sall not have the power of disposing themselfes in marriage wtout the consent of their parents. if they be past this age, and their parents wil not yet dispose of them, then and in that case at the instance of the judge, and his auctority interveening they may marry tho their parents oppose. when the friends of a pupil or minor meits to choose him a curator, by the law of france they are responsible to the pupill if ether the party nominat be unfitting, or behave himself fraudulently and do damnage, and be found to be not _solvendo_. at bourges in berry theirs no church of the religion, since, notwtstanding its a considerable toune, their are none of the religion their, but one family, consisting of a old woman and hir daughters, both whores; the one of them on hir deathbed turned catholick when mr. grahame was their. its a very pleasant place they say, situate on a river just like the clin heir; they call it the endre. heir taught the renouned cuiacius,[ ] whom they call their yet[ ] but a drunken fellow. his daughter was the arrantest whore in bourges. its not above or years since she died, whence i coniecture she might be comed to good years or she died. [ ] jacques cujas, eminent jurist, - . [ ] i.e. 'still speak of there as.' this university is famous for many others learned men, as douell,[ ] hotoman,[ ] duarene,[ ] vulteius, etc. [ ] possibly douat, author of _une centaines d'anagrammes_. paris, . [ ] francois hotman, celebrated jurist, - . [ ] francois duaren, jurist, - . the posterity of the poor waldenses are to be sein stil in piedmont, merindol, and the rest of savoy, as also of the albigenses in carcasson, beziers and other places of narbon. they are never years in quietness and eas wtout some persecution stirred against, whence they are so stript of all their goods and being that they are necessitate to implore almes of the protestant churches of france. about years ago a contribution was gathered for them, which amounted to neir , livres, which was not ill. the principall trafick of geneva is in all goldsmiths work. the best _montres_ of france are made their, so that in all places of france they demand geneva _montres_, and strangers if they come to geneva they buy usually or to distribute amongs their friends when their are at home. in the mor southren provences of france to my admiration i fand they had and eated upright[ ] cheries tymes of the year, end of may and beginning of june, a little after which they are ordinar wt ourselfes, and also again in octobre. on a day at the beginning of that moneth at dinner mr. daillé profered to make me eat of novelties, wheiron he demanded me what fruits i eated in the beginning of the year. i replied i had eaten asparagus, cherries and strawberries. you sall eat of cherries yet, said he, and wt that we got a plate full of parfait cherries, tho they had not so natural a tast as the others, by reason of the cold season, and the want of warmness which the others enioy. they had bein but gathered that same day; they are a sort of bigaro;[ ] when the others are ripe they are not yet flourished. [ ] perhaps standard. compare 'upright bur,' jamieson's _dict_. [ ] bigarade is a bitter orange. this may mean a bitter cherry. the most usuall names that women are baptized wt heir be elizabeth, radegonde, susanne, marguerite and madleine. the familiar denomination they give the elizabeths is babie, thus they call j. ogilvies daughter at orleans; that for marguerite is gotton, thus they call madame daillé and hir litle daughter. thess of the religion, usually gives ther daughters names out of the bible, as sarah, rachel, leah, etc. they have also a way of deducing women names out of the mens, as from charles, charlotte, from lowis, lowisse, from paul, pauline, from jean, jeane. thir be much more frequent amongs the baser sort then the gentility, just as it is wt the names of bessie, barbary, alison and others wt us. a camel or dromedary would be as much gazed on in france for strangers as they would be in scotland. in italy they have some, but few, for they are properly asiatick wares, doing as much service to the persian, arabian and others oriental nations acknowledging the great tartar chain as the silly, dul asse and the strong, robust mule does to the french. the camel, according to report indeniable, because a tall, hy beast it most couch and lay doune on its forward feet to receave its burden, which if it find to heavy it wil not stir til they ease it of some of it; if it find it portable it recoveres its feet immediatly. there comes severall jewes to france, especially as professing physick, in which usually they are profondly skilled. mr. daillé know on that turned protestant at loudun. another, a very learned man, who turned catholik at montpeliers, who a year after observing a great nombre of peaple that lived very devotly and honestly, that ioined not wt the church of rome, having informed himself of the protestants beleife, he became of the religion, publishing a manifesto or apology wheirin he professes the main thing whey he quites the catholick religion for is because he can never liberate their tennet wheirby they teach that we most really and carnally eat our god in the sacrament, from uniustice, absurdity and implication.[ ] [ ] implication perhaps means confusion of ideas. the laws of spaine, as also of portugal, strikes wery sore against jewes that will not turne christians, to wit, to burning them quick, which hath bein practicate sewerall tymes. on the other hand a jew thats christian if at constantinople he is wery fair to be brunt also. whence may be read gods heavy judgement following that cursed nation. yet holland, that sink of all religions, permits them their synagogues and the publick excercise of their religion. they rigorously observe their sabath, our saturdy, so that they make ready no meat on that day. if the wind sould blow of their hat they almost judge it a sin and a breach of the sabath to follow it and take it up. their was a jew wt us in the year of god that professed at least to turne christian, and communicated in the abby church. we may deservedly say, _omnia sunt venalia gallis_, for what art their not but its to be sold publickly. not so much as rosted aples ready drest, _chastans_,[ ] _poirs_, rosted geese cut unto its percels, but they are crieng publicklie, and really i looked upon it as a wery good custome, for he that ether cannot or wil not buy a whole goose he'el buy it may be a leg. [ ] chestnuts. the prices of their meats waries according to the tymes of the year. the ordinars of some we have already mentioned; for a capon they wil get whiles sous, whiles but or . theirs a fellow also that goes wt a barrel of vinegar on his back, crieng it thorow the toune; another in that same posture fresch oil, others moustard, others wt a maille[ ] to cleave wood, also poor women wt their asses loadened wt barrels of water crying, _il y a l'eau fresche_. at paris its fellows that carryes buckets tied to a ordinar punchion gir,[ ] wtin which they march crieng _de l'eau_, which seimed a litle strange to us at first, we not crying it so at home. also theirs to be heard women wt a great web of linnen on their shoulder, a el[ ] wand in their hand, crieng their fine _toile_. theirs also poor fellows that goes up and doune wt their hurle barrows in which they carrie their sharping stone to sharp axes or gullies to any bodie that employes him. [ ] mell, mallet, beetle. [ ] hoop. [ ] an el. their came a charlatan or mountebanck to poictiers the septembre we was their, whose foolies we went whiles to sie. the most part of the french charletanes and drogists when they come to a toune to gain that he get them themselfes[ ] a better name, and that they may let the peaple sie that they are not cheaters as the world termes them, they go to all the phisitians, apothecaries and chiurgions of the toune and proferes to drink any poison that they like to mix him, since he hath a antidote against any poison whatsoever. [ ] the meaning is, with the object of getting for themselves. a mountebank at montpeliers having made this overture, the potingers[ ] most unnaturally and wickedly made him a poisonable potion stuffed wt sulfre, quick silver, a vicked thing they cal _l'eau forte_, and diverse others burning corrasive ingredients to drink. he being confident in his antidote, he would drink it and apply his antidote in the view of all the peaple upon the stage. he had not weill drunk it when by the strenth of the ingredients he sunk all most dead upon the scalfold or stage; he suddenly made his recourse to his antidote which he had in his hand; but all would not do, or halfe a hower it bereaved him of his life. [ ] apothecaries. their are also some of them that by litle and litle assuesses themselfes to the drinking of poison, so that at lenth by a habit they are able to take a considerable draught wt out doing themselfes harme. historians reportes this also to have bein practicate by mithridates, king of persia [parthia].[ ] [ ] interlined. upon the founding of the jesuits colledge at la fleche on made thir very quick lines: arcum dola dedit patribus gallique sagittam, quis funem autem quem meruere dabit.[ ] [ ] _dola_ is a mistake for _dona_. the pentameter does not scan. it might be emended, _dic mihi quis funem_. in many places of germany their growes very good wines, in some none at all. the rhenish wine which growes on the renouned rhein, on which standes so many brave tounes, is weill enough knowen. they sometymes sell their wine by the weight as the livre or pound, etc., which may seime as strange as the cherries tymes a year in france. thus they ar necessitate to do in the winter, when it freizes so that they most break it wt great mattocks and axes, and sell it in the faschion we have named. adultery, especially in the women, is wery vigorously punished in many places of france. in poictou, as mr. daillé informed, they ignominously drag them after the taile of a mule thorow the streits, the hangman convoying them, then they sett them in the most publick part of the toune bound be a stake, wt their hands behind their backs, to be a obiect of mockery ther to all that pleases. they that commits any pitty roobery or theifte are whipt thorow the toune and stigmatized wt a hote iron marked wt the _flower de lis_ on the cheik or the shoulder. if any be taken after in that fault having the mark, theirs no mercy for them under hanging. every province almost hath its sundry manner of torturing persones suspected for murder or even great crimes to extort from them a confession of the truth. at paris the hangman takes a serviet, or whiles a wool cloath (which i remember cleark in his martyrologie discovering the spanish inquisition also mentioned), which he thrustes doune the throat of him as far as his wery heart, keiping to himselfe a grip of one end of the cloath, then zest wt violence pules furth the cloath al ful of blood, which cannot be but accompanied wt paine. thus does the _burreau_ ay til he confesses. in poictou the manner is wt bords of timber whilk they fasten as close as possibly can be both to the outsyde and insyde of his leg, then in betuixt the leg and the timber they caw in great wedges[ ] from the knee doune to the wery foot, and that both in the outsyde and insyde, which so crusheth the leg that it makes it as thin and as broad as the loafe[ ] of a mans hand. the blood ishues furth in great abondance. at bourdeaux, the capital of guienne, they have a boat full of oil, sulfre, pitch, resets, and other like combustible things, which they cause him draw on and hold it above a fire til his leg is almost all brunt to the bone, the sinews shrunk, his thigh also al stretched wt the flame. [ ] the torture of the boot was apparently new to lauder, but from his later mss., it appears to have been in use in scotland. [ ] loof, palm. on a tyme we went to sie the charlatan at the marcher vieux, who took occasion to show the spectators some vipers he had in a box wt scalves[ ] in it, as also to refute that tradition delivered by so many, of the young vipers killing their mother in raving[l ] her belly to win furth, and that wt the horrid peine she suffers in the bringing furth her young she dies, which also i have heard mr. douglas--preaching out of the last of the acts about that viper that in the ile of malta (wheir they are a great more dangerous then any wheir else) cleave to pauls hand--affirme at least as a thing reported by naturalists, the etymon of the greek word [greek: hechidnae] seiming to make for this opinion, since it comes [greek: apo ton echein taen odunaen][ ] _a habendo dolorem_. yet he hath demonstrated the falshood of that opinion: for he showed a black viper also spooted wt yellow about the lenth of a mans armes, about the grossenesse of a great inkhorne wholly shappen like a ell[ ] save only its head wt its tongue, which was iust like a fork wt teeth, wheir its poison mainly resydes, that had brought furth young ones that same very day, which he showed us wt some life in them just like blew, long wormes that are wrinkled; and notwtstanding the mother was on life and no apparence of any rupture in hir belly. to let us sie whow litle he cared for it he took hir and wrapt it that she might not reach him wt hir head, and put it in his mouth and held it a litle space wt his lipes; which tho the common peaple looked on as a great attempt, yet surely it was nothing, since their is no part of the viper poisonnable save only its head and its guts. as for the flech of it, any man may eat it wtout hazard, for the same very charlatan promised that ere we left the toune, having decapitated and disbowelled it, he sould eat the body of it before all that pleased to look on, which he might easily do. for as litle as he showed himself to care for it, yet he having irritate and angred it, either by his brizing[ ] it in his mouth or by his unattentive handling of it (for such is the nature of the viper that tho its poison be a great deall more subtil, percing and penetrating, and consequently in some account more dangerous then that of the hideous coleuure or serpent, yet it wil not readily sting or bit except they be exasperate, when the others neids no incitations, but wil pershew a man if they sy him), when he was not taking heid, it snatcht him by the finger, he hastily shakt it of on the stage and his finger fell a blooding. he was not ordinarly moved at this accident, telling us that it might endanger the losse of his finger. he first scarified the flech that was about the wound, then he caused spread some theriac (one of the rarest contrepoisons, made mainly of the flech of the viper) on a cloath which he applied to it. about a halfe hower after he looked to it in our presenc, and his finger was also raisen in blay[ ] blisters. he said he would blood himselfe above a hower, to the end to reid himselfe of any blood already poisoned and infected, lest by that circulation that the blood makes thorow al the body of a man once of the howers the blood infected sould communicate itselfe to much. also he sayd that he had rather bein stung in the leg, the thigh, or many other parts of the body then the finger, by reason of the great abondance of nerves their, and the sympathy the rest of the body keips wt them, which renders the cure more difficile. [ ] shelves. [ ] riving, tearing. [ ] mistake for [greek: hodunaen]. the etymology is fanciful and incorrect. [ ] eel. [ ] squeezing. [ ] livid. this charlatan seimed to be very weill experimented. he had bein at rome, which voyage is nothing in france, and thorow the best of france. the stone thats to be found in the head of the hie[ ] toad is very medicinal and of great use their. they call a toad grappeau; a frog grenouille. [ ] i.e. he. the papists looks very much on the sone for the curing of the cruels;[ ] severall of the protestants look on it as superstition. they come out of the fardest nooks of germany, as also out of spain itselfe, to the king of france to be cured of this: who touches wt thir wordes, which our king æquivalently uses, tho he gives no peice of gold as our king does, _c'est le roy qui vous touche, c'est dieu qui vous guerisse_. he hath a set tyme of the year for the doing of it. the day before he prepares himself by fasting and praying that his touche may be the more effectuall. the french could give me no reason of it but lookt on it as a gift of god. [ ] cruels, scrofula, king's evil. for the healing powers of the seventh son, compare chambers's _book of days_, vol. i. p. ; _notes and queries_, june , . we can not forget a witty answer of a young english nobleman who was going to travel thorow france and italie, whom his friends feared exceedingly that he would change his religion, because he mocked at religion. they thought that king james admonition to him might do much to keip him constant, wheiron they prayed the king to speak to him. yes i shall do that, quoth he. when he came to take his leave of the king, king james began to admonish him that he would not change his religion, for amongs many other inconveniences he would so render himselfe incapable of serving his king and his country, and of bearing any office theirin. he quickly replied, i wonder of your majesty who is so wise a man that ye sould speak so; for ther is no a man in all france or italy that wil change wt me tho i would give him a , livres aboot.[ ] the king was wery weill satisfied wt this, telling his freinds that he was not feared he would change, but that he saw he would bring back all the religion he carried afield wt him. [ ] to boot. at the marcher vieux beyond our expectation we saw one of the fellows eat the viper head and all. the master striped it as a man would do an elle, and clasped it sicker wtin a inch of its neck. the fellow took the head of it in his mouth and zest[ ] in a instant bit it of its neck and over his throat wt it, rubing his throat griveously for fear that it stake their. he had great difficulty of getting it over, and wt the time it had bein in his mouth his head swalled as big as heads. the master immediatly took a glasse halfe full of wine, in which he wrang the blood and bowells of the headlesse body of the viper and caused him drink it also, breaking the glasse in which he drank it to peices on the stage, causing sweip all wery diligently away that it might do no harme. immediatly on the fellows drinking of it he had ready a cup of contrepoison, which he caused him drink, then giving him a great weighty cloak about his shoulders he sent him to keip him selfe warme before a great fire. the reason of which was to contrepoise the cold nature of this poison as of all that poison thats to be found in living creatures, which killeth us by extinguishing our natural radical heat, which being chockt and consumed the soul can no more execute its offices in the body but most depart. [ ] just. in the more meridional provinces of france, as provence, languedoc, etc., they have besydes the other ordinar serpents also scorpions, which, according as we may sie them painted, are just like a litle lobster, or rather the french _rivier escrivises_. they carry their sting in their taile as the viper does in its mouth. tho it be more dangerous then any, yet it carries about wt it contrepoison, for one stung wt it hath no more ado, but to take that same that stung him, or any other if he can light on it, and bruise out its substance on the place wheir he is stung, and theirs no hazard. the potingers also extracts a oile which hath the same virtue. its not amisse to point as it ware wt the finger at that drollery of the priest who preaching upon the gifts that the wise men gave to christ, alleadged the first gave _d'or, myrrthe_, the d _argent_. he could never find, tho he repeated it tymes over, what the d gave wt the rest of its circumstances. as also of the soger that made good cheir to his landlord; and of grillet the deviner who notwtstanding of his ignorance yet fortune favorized. the frenchwomen thought strange to hear that our women theyle keip the house a moneth after they are lighter, when they come abroad on dayes, and they are very weak that keips it a fortnight. be the lawes of france a slave, let him be a turk, slave to a venitien or spaniard, etc. (such enemies they pretend themselfes to be to servitude, tho their be legible enough marks of it amongs them as in their _gens de main mort_,[ ] etc.), no sooner sets he his foot on french ground but _ipso facto_ he is frie. yet al strangers are not in the same condition their, nether brook they the same priveledges, for some they call regnicolls,[ ] others aubiens[ ] (_suivans les loix du royaume_, bastards). the principal difference they make betuixt them is this, that if a regnicoll such as the scots are, chance to dy in france they have the power of making a testament and disposing of their goods as they please which they have their, whither they be moveable or immoveable. if they die not leiving a testament yet its no less secure, since their friends to the degrie may take possession of them. its not so wt the aubiens who have no such right, but dieng, the king is their heir, unless it may be they be aubiens naturalized, who then begin to have the priveledges of the others and the very natives. [ ] serfs under the feudal law, whose power of disposing of their property by will was restricted. [ ] a legal term meaning native or naturalised citizens. [ ] _aubains_. foreigners, whose succession fell to the crown (_droit d'aubaine_). the laws of france [this is the rigor][ ] denies children begotten in adultery or incest aliments, which tho harsh, condemning the innocent for the guilty, yet they think it may serve to deterre the parents from sick illicit commixtions. [ ] interlined. the laws of france, as of the most of europe (tho not practicate wt us), in thess case wheirin a man gets a woman wt child, ordains that ether he marry hir or that he pay hir tocher good, which is very rigorously execute in france. we can not forget a anagram that one hes found in cornelius jansenius, to wit, _calvini sensus in ore_. at rome the jews have a street assigned to them to live in a part. in france, especially in montpeliers, wheir theirs seweralls, they dare not wear hats of that coleur that others wear, as black or gray, but ether rid or green or others, that all may know them from christians. the king of france amongs other titles he assumes, he calls himselfe abbot of st. hilaire, to wit of that church that bears the name in poictiers, whence its amongs the ænigma'es of france that the abbot of st. hilaire hath the right of laying with the queen of france the night of the marriage. wheirupon when this king married the infanta of spaine, some of the french nobility told hir that the abbot of st. hilaire had the right of lying wt the queen of france the first night, she replied that no abbot sould lay wt hir but her prince. they pressing that the laws of france ware such, she answered she would have that law repealed. they telling hir the matter she said the abbot sould be welcome. the most part of them that sweips the chimelies in france we discovered to be litle boyes that come out of savoy wt a long trie over the shoulders, crying shrilly thorow the cityes, _je vengeray vos cheminées haut en bas_. its strange of thir litle stirrows,[ ] let us or the frenchmen menace them as we like we can never get them to say, _vive le roy de france_, but instead of it, ay _vive la reine de sauoye_. [ ] lads, fellows. we was not a little amazed to sy them on dy making ready amongs other things to our diet upright poddock stools, which they call _potirons_ or _champignons_. they'le raise in a night. they grow in humid, moisty places as also wt us. they frie them in a pan wt butter, vinegar, salt, and spice. they eated of it greedily vondering that i eated not so heartily of them as they did; a man seimes iust to be eating of tender collops in eating them. but my praeiudice hindred me. to know the way of making their sups is not uunecessar since our curiosity may cause us make of them at home. of this we spoke something already. further he that hes made ready boiled flech, he hath no more ado but to take the broth or sodden water wt his flech and pour it above his cut doune loaves, which we proved to be very nourishing. if a man would make a good soup wtout flech, he would cut me doune some onions wt a lump of butter ether fresh or salt, which he sall frie in a pan, then pour in some vinaigre, then vater, then salt and spice, and let al boil together, then pour it on your sup, and i promise you a good sup. we cannot forget what good company we have had some winter nights at the fire syde, my host in the one noock, madame in the other, and i in the mides, in the navel of the fire. he was of chattelerault, she of partenay: they would fallen to and miscalled one anothers country, reckning over al that might be said against the place wheir the other was born and what might be sayd for their oune. whiles we had very great bickering wt good sport. they made me iudge to decide according to the relevancy of what i fand ether alledge. i usually held for madame as the weaker syde. the most part of the french sauces they make wt vergus.[ ] for geese they use no more but salt and water. [ ] verjuice. this consequence may be whiles used: sy ye this, yes. then ye are not blind: hear you that; r, yes. then ye are not deaf. we saw a horse ruber wt a blew bonnet in poictiers almost in the faschion of our scotes ones; another we saw not, from our leiving of berwick, til our returne to it againe. to be fully informed of the history of the brave general [mareschal][ ] birron,[ ] whom they had such difficulty to get headed; as of the possessed convent of religious vomen called _les diablesses de loudun_; as of the burning of the preist as sorcerer and his arraigning his iudges before the tribunal of the almighty to answer him wtin a few dayes, and all that sat upon his azize their dying mad wtin som litle tyme; it wil not be amisse to informe ourselfe of them from the history of france. [ ] interlined. [ ] ch. de gontant, duc de biron, marshal of france, born , died . a favourite of henry iv, but executed for treason against him. the french, tho the civilest of peaple, yet be seweral experiences we may find them the most barbarous. vitnes besyde him who dwellt at porte st. lazare, another who brunt his mother because she would not let him ly wt hir, and was brunt quick himselfe at the place in poictiers some years ago. the french law is that if a women be years wtout hearing news of hir husband that she may marrie againe. we have marked the german language to have many words common wt our oune, as bread, drink, land, _goet_ for our god; _rauber_; feeds,[ ] _inimiticiæ_; march, _limites_; fich; flech; _heer_, sir; our man, _homo_; _weib_ for wife. [ ] feeds, _fehde_, feuds. we have eated puddings heir also that we call sauses, which they make most usualy of suine. we cannot passe over in silence the observation the naturalists hath of the sow, that it hath its noble parts disposed in the same very sort they are found in a man, which may furnish us very great matter of humility, as also lead us to the consideration and sight of our bassesse, that in the disposall of our noble parts we differ nothing from that beast which we recknon amongs the filthiest. they make great use of it in france heir. in travelling we rencontred wery great heards. tuo boyes studieing the grammar in the jesuits colledge at poictiers, disputing before the regent on their lesson, the on demanded, _mater cuius generis est_: the other, knowing that the mother of the proponer had a wery ill name of a whore, replied wittily, _distinguo; da distinctionem_ then; replied, _si intelligas de meâ est faeminini; si de tua, est communis_ (in the same sort does rosse tel it). the occasion of the founding that order of the charterous in france is wery observable. about the tyme of the wars in the low contries their was a man at paris that led one of the strictest, godliest and most blameless lifes that could be, so that he was in great reputation for his holinesse. he dies, his corps are carried to some church neir hand wheir a preist was to preach his funeral sermon the nixt day. a great concourse of peaple who know him al weill are gathered to heir, amongs other, lead by meer curiosity, comes a soger (bruno) who had served in the low country wars against the spaniard and had led a very dissolute, prophane, godless life. the preist in his sermon begins to extol the person deceased and amongs other expressions he had that, that undoubtedly he was in paradis at the present. upon this the dead man lifted himselfe up in his coffin and cried wt a loud voice, _justo dei iudicio citatus sum_: the peaple, the preist and al ware so terrified that they ran al out of the kirk, yet considering that he was a godly man and that it would be a sin to leive his corps unburied they meit the nixt day. they ware not weill meet, when he cried again, _iusto dei indicio indicatus sum_; when they came again the d tyme, at which he cried, _justo dei iudicio condemnatus sum_. this seimed wery strange to all, yet it produced no such effects in any as in our soger, who was present al the tymes: it occasioned enexpressible disquietment of spirit, and he fell a raisoning, if such a man who was knowen to be of so blamlesse a conversation, who was so observant of al his dueties to god be dammed, hath not obtained mercy, oh what wil word of[ ] the who hath lead so vicious a life, thinks thou that thou will be able to reach the height that that man wan to, no. at last considering that company and the tongue ware great occasions to sin he resolves to institute a order who sould have converse wt none and whom all discourse should be prohibited save onlie when they meet one another, thir words _memento mori_. for this effect he fel in scrutiny of a place wheir they might be friest from company, and pitched upon a rocky, desolate, unhabited place not far from grenoble (about leagues), wheir they founded their first convent, which bears the name of chartrouse, and is to be sein at this day. notwtstanding that their first institution bears that they stay far from the converse of men, yet (which also may be observed in the primitive monachisme) they are creeping into the most frequented cities. vitness their spatious convent, neir halfe a mile about, at paris. [ ] what will become of thee. compare german, _werden, geworden_. these of the religion at poictiers from st. michel to paise[ ] they have no preaching the sabath afternoone. [ ] pasch, easter. its not leasum for a man or woman of the religion to marry wt a papist; which if they do, they most come and make a publick confession of the fault and of the scandal they have given by such a marriage before the whole church. experience hes learned them to use it wery sparingly and meekly, for when they would have put it in execution on som they have lost them, they choosing rather to turne papists then do it. we are not so strick in this point as they are; for wt us _licet sed non expedit cum non omne quod liceat honestum sit_. out of the same fear of loosing them they use wery sparingly the dart of excommunication except against such as lives al the more scandoulously. the protestants in speaking of their religion before papists they dare not terme it otherwise then _pretendue reformée_. we have eaten panches[ ] heir, which we finding drest in a different sort from ours but better, we informed ourselfe of it thus: they keip them not intier as we do, but cuts them into peices as big as a man wil take in his mouth at once, then puts them in a frying pan wt a considerable lump of butter, having fryed them a good space, they put in vineger, a litle salt and some spice; this is all. [ ] tripe. their goosing irons they heat them not in the fire as we do; but hath a pretty device. they make the body of the iron a great deall thicker then ours, which is boss,[ ] and which opens at the hand, which boss they fil wt charcoall, which heats the bottom of the iron, which besydes that its very cleanly, they can not burn themselfes so readily, since the hands not hot. [ ] hollow. they dry not out their linnens before the fire as we do: they have a broad thing iust like a babret[ ] on which we bak the cakes, only its of brass very clear, its stands on right hight feet. they take a choffer whiles of brass oftner lame,[ ] filled wt charcoall, which they sett beneath the thing, on which they dry out their cloaths wery neitly. [ ] babret or bawbret or baikbred, kneading trough. [ ] earthenware. we think fit to subioine heir a ridle or . your father got a child; your mother bore the same child and it was nether brother nor sister to you: yourselfe. a man married a woman which was so his wife, his daughter and his sister. a man got his mother wt child of a lasse, which by that means was both his sister and his daughter, whom he afterwards not knowing married. france thinkes it a good policy to height[ ] the gold and silver of stranger nations, by that thinking to draw the money of al other nations to themselfes. this gives occasion to that book we have sein called _declaration du roy et nouveau reglement sur le faict des monnoyes tant de france que estrangeres, donné par lowis , an_ . this book at least hath several peices gold and silver currant in france. it specifies what each of them vieghs and what the king ordaines them to passe for. first he showes us a great nombre of french peices of gold wt their shapes what they carry on both sydes: then the gold of navarre that passes: then the spanish and of flanders, as the ducat and pistoles: then of portugal, as st. estienne: then the english rosenoble passing for livres souse: the noble henry of england for liv. souse: english angelot for livres: the scotes and english jacobuses, which we call pound peices, as also the holland ridres for liv: that scots peice thats wt swords thorow other, crouned the whol is , the halfe one liv. souse (it hath, _salus populi est suprema lex)_: the new jacobus, which we cal the shiling sterling peice, fra: then flandres gold. the scotes croune of gold, which hath on the one syde_ maria d.g. regina scotorum_, passes for livres souse.[ ] then he hath the popes money, which hath peter and paul on the one syde and the keyes, the mitre and flies on the other, some of it coined at avignon, some at rome. then the gold of bologne, milan, venise, florence, parma, avoye, dombes, orange, besançon, ferrare, lucque, sienne, genes, savoye, geneve, wt that about the syde, _lux oritur post tenebras_: lorraine, liege, spinola, mets, frise, gueldres, hongry, l'empyre, salbourg, prusse, provinces unies wt this, _concordiâ res parvae crescunt_, ferrare and then of turquie, which is the best gold of them al, its so fine it wil ply like wax: the armes wtin consistes of a number of caracters iust like the hebrew. thus for the gold. as to mony it hath al the several realles of the spaniard, as of al the dolles or dollers of the empire wt the silver of al their neighbouring nations. our shiling[ ] is ordained to passe for souse. [ ] enhance the price of. [ ] for a comparison of these values, see introduction, p. xliii. [ ] here the shilling sterling. goropius becanus in hes _origines antwerpianae_ would wery gladly have the world beleive that the cimbrick or low dutch is the first language of the world, that which was spoken in paradise; finally that the hebrew is but a compond ishue of it because the hebrew seimes to borrow some phrases and words of it when in the interim[ ] it borrows of none. this he layes doune for a fondement and as in confesso, which we stiffly and on good ground denieng, al his arguments wil be found to split on the sophisme _petitionis principii_. [ ] when in fact. so again p. . the ground upon which the phrygians vendicats their langage for the anciennest is not worth refuting, to wit that these children that psammeticus king of egypt caused expose so that they never hard the woice of man: the first thing ever they cried was _bec_, which in the phrygian language, as also in old low dutch (so that we have to do wt goropius heir also, who thinks this to make mutch to his cause) signifies bread, is not worth refuting, since they might ether light on that word by chance, or they had learned it from the baying of the sheip wt whom they had conversed. to abstract from the antiquitie of tongues, the most eloquent language at present is the french, which gets such acceptance every wheir and relishes so weill in eaches pallat that its almost universal. this it ounes to its _beauxs esprits_, who hath reformed it in such a faschion that it miskeens the garbe it had or years ago, witnesse _l'historie du serre_ (_francion_),[ ] montaign'es essayes and du barta'es weeks,[ ] who wt others have written marvelously weill in the language of their tyme, but at present is found no ways smooth nor agriable. we have sein the works of du bartas, which, tho in langage at present ancient, is marvelously weill exprest, large better than his translator joseph sylvester hath done. amongs his works their was one which i fancied exceidingly, _la lepanthe de jacques , roy d'ecosse_, which he tornes in french, containing a narration of that bloody wictory the christians gained over the turk, octobre , the year before the massacre at paris, on the lepanto, which howel in his history of venise describes at large. he speaks wt infinite respect of our king, calling him among other stiles _phoenix ecossois_. [ ] _francion_ interlined. _histoire comique de francion_, - . sorel mentioned again p. . for de serre, see same page. i thought at first that here serre might be sieur, but it is distinctly written, therefore perhaps _francion_ is interlined by mistake. the reference is to an early writer, de serres died in . sorel's _francion_ was published in . [ ] g. de saluste, sieur du bartas, - , religious poet. his _divine weeks_ were translated by joshua sylvester. to returne to our french language, not wtout ground do we estime it the elegantest tongue. we have bein whiles amazed to sy [hear][ ] whow copiously and richly the poor peasants in their meiting on another would expresse themselfes and compliment, their wery language bearing them to it; so that a man might have sein more civility in their expressions (as to their gesture its usually not wery seimly) then may be fund inthe first compliments on a rencontre betuixt scotes gentlemen tolerably weil breed. further in these that be ordinar gentlewomen only, theirs more breeding to be sein then in some of our contesses in scotland. for their frinesse[ ] ennemy to a retired sullen nature they are commended be all; none wt whom a person may move easily and sooner make his acquaintance then wt them, and yet as they say wery difficult to board; the englishwomen being plat contrary. they wil dance wt him, theyle laugh and sport wt him, and use al innocent freedome imaginable, and this rather wt strangers then their oune....[ ] [ ] interlined. [ ] freeness. [ ] four lines erased in ms. this much precisely for the french mony (only its not to be forgotten that no goldsmith dare melt any propre french mony under the pain of hanging), their langage, and their women: of the men we touched something already in a comparison of them wt the spaniard. i have caused madame daillé some vinter nights sit doune and tell me tales, which i fand of the same very stuffe wt our oune, beginning wt that usually _il y avoit un roy et une reine_, etc., only instead of our red dracons and giants they have lougarous or war-woophs.[ ] she told me on a tyme the tale or conte of daupht jock wt his _sotteries_, iust as we have it in scotland. we have laughten no litle at some. [ ] loups-garou or were-wolves, we saw the greatest aple we ever saw, which we had the curiosity to measure, to measure about and fand it large inches. the gourds are monstrous great heir: we have sein them greater then any cannon bullet ever we saw. we have eaten cormes[ ] heir, which is a very poor fruit, tho the peasants makes a drink of it they call cormet. in octobre is the tyme of their roots, as riphets, tho they eat of them al summer throw, neips and passeneips.[ ] [ ] sorb apples. [ ] parsnips. let us mark the reason whey the pope permits bordel houses at rome, and then let us sie who can liberat it from clashing immediatly wt the aposles rule, romans , v. . o. sayes the pope, the toleration of stues in this place is the occasion of wery much good, and cuts short the occasion of wery mutch evil, for if men, especially the italian, who, besydes his natural genius to venery, is poussed by the heat of the country had not vomen at their command to stanch them, its to be feared that they would betake themselfes to sodomy (for which stands the apology of the archbischop of casa at this day), adultery, and sick like illicit commixtions, since even notwtstanding of this licence we grant to hinder them from the other, (for _ex duabus malis minus est eligendum_), we sie some stil perpetrating the other. o brave, but since we sould not do evil that good sould come theirof, either let us say this praetext to be false and vicket, or the aposles rule to be erroneous. nixt if ye do it on so good a account, whence comes it that the whores most buy their licence by a , livres a year they pay to your exchequer, whey have they not simply their liberty since its a act, as ye say, of so good consequence? the ancient inhabitants of rome at that tyme when it became of pagan christian seimes to me much viser then our reformers under knox when we past from papisme to protestantisme. they did not demolish the heathen idol temples, as we furiously did christian, but converted them to christian temples, amongs others witness the stately temple dedicat to the goddess fortune, much respected by the romans, at present a church. yea the italians boasts that they have cheated, robbed the devil in converting that hous which was consecrat for his service unto the service of the true god. but all that heirs of our act laughts at it as madness. theirs a scots colledge at rome. i find that conclusion the duke of burgundy tried on a peasant, whom he fand in a deip sleip in the fields as he returned from the hunting on a tyme, wery good. on a tyme we fel a discoursing of those that are given to riseng in their sleip and do things, whiles more exactly then give they ware waking. i cannot forget on drollery. gentlemen fell to lodge to gither at one innes, the one began to plead for a bed by himselfe, since the other would find him a wery ill bedfellow, for he was so much given to hunting, that in the night he used to rise and cry up and doune the chambre hobois, hobois, as on his dog; the other thought il'e sy if i can put you from that, wheiron he feigned he was iust of that temper in rising thorow his sleip, and that he was so much given to his horses that he thought he was dressing and speaking to them. since it was so[ ] they lay both together; about midnight the one rises in his sleip begines to cry on his doges; the other had brought a good whip to the bed wt him, makes himselfe to rise as throw his sleip, fals to and whipes the other throw the house like a companion,[ ] whiles crying, up, brouny; whiles, sie the iade it wil no stir. the other wakened son enough, crying for mercy, for he was not a horse; the other, after he had whipt him soundly, made himselfe to waken, wheiron the other fel a railing on him; the other excused himselfe wery fairly, since he thought he was whiping his horses. in the interim the other never rose to cry on his doges again. [ ] interlined. [ ] low fellow. france in such abondance produces win, that seweral years if ye'el bring punchions to the field as great as ye like, live them the on and they'le let you carry as many graps wt you as the other wil hold. they have in france the _chat sauuage_; the otter, which is excellent furring; the regnard, the wolfe. in the mountaines of dauphiné theirs both _ours_ and _sangliers_, bear and boor. their doges are generally not so good as ours. yet their a toune in bretagne which is garded by its dogs, which all the day ower they have chaned, under night they loose, who compasses the toune al the night ower, so that if either horse or man approach the city, they are in hazard to be torn in peices. the wolfes are so destructive to the sheip heir that if a man kill a wolfe and take its head and its taille and carry it thorow the country willages and little borrowes, the peasants as a reward will give him som egges, some cheese, some milk, some wooll, according as they have it. they have also many stratagemes to take the wolfe. amongs others this: they dig a wery dip pit, wheir they know a wolfe hantes; they cover it with faill,[ ] fastens a goose some wery quick, which by its crying attracks the wolfe who coming to prey on the goose, zest[ ] plumpes he in their, and they fell him their on the morning. [ ] turf. [ ] just. we have sein that witty satyre that howel has about the end of his venitian history in french. the french ministers of the religion are exceedingly given to publish their sermons, in that like to the english. vitnesse daille'es sermons; jean sauvage, ministre at bergerac, betuixt limosin (wheir they eat so much bread when they can get it) and perigord, dedicated to mr. de la force, living at present their, mareschal de france, father of mareschal turaines lady: wt diverses others we have sein. we have sein a catechisme of mr. drelincourt which we fancied exceedingly. the halfe of france wt its revenues belongs to the ecclesiasticks, yea, the bueatifullest and the goodliest places. to confine our selfes wtin poictiers, the rents of whosse convents, men and women togither, wil make above six thousand livers a years, besydes what the bischop hath, to wit, , livres a year. the benedictines, a wery rich order as we have marked, have , livres in rent; the feuillans[ ] , ; besydes what the jacobins, cordeliers, minims, thess de la charité, capucyns, augustins, the chanoines of ste. croix, st. radegonde, st. peter, the cathedral of poictiers, notre dame la grande, st. hilaires, wt other men and al the women religious, have, being put togither wil make good my proposition. [ ] see p. , *note. we had almost forgot the jesuits, who, above years ago, entred poictiers wt their staffes in their hand, not a livres amongs them all, since have wt their crafty dealings so augmented their convent that they have , livres standing rent. whow they come be this is not uneasy to dewine, we toucht it a litle already. if any fat carcasse be on his deathbed, they are sure to be their, undermine him wt all the slights imaginable, wring donations in their faveurs from them, of which we know and have heard seweral exemples: vitness the abby at bourdeaux, whom they undermined, and he subtilly getting a grip of his testaments tore it and so revocked his will. also that testament so agitate by the jesuits and the sone of the deceased who was debauched before the duke of parme, the jesuits relaying on thesse words that the fathers jesuits sould be his heirs, providing that they gave his sone _ce qu'ils voudront_, what they would: the duk turning them against the jesuits exponed them, that what they would have themselfes that that sould be given to his sone. diverse others we have heard. the lawes of france wil hardly permit the father to disinherit his sone, unless he can prove him guilty of some hy ingratitude and disobedience against him, or that he hath attempted something against the life of his father; that he is debaucht he cannot. the custome among the great ones of the most part of the world is that they cause any other of quality that comes to sy them be conveyed thorow their stables to sy their horses, as also causeth them sy their doges, their haucks, ther gardens. particularly in spaine the custome is such, that they take special heed what horse or what dog ye praise most, and if ye change[ ] to say, o their is a brave horse, the horse wil be as soon at your lodging in a gift as your selfe wil be. [ ] chance. we happened to discourse on night of fools and madmen, of their several sortes, of the occasions, as love, study, vin, hypocondriack, melancholly, etc. they told me of one at marseilles who beleifed himselfe to be the greatest king of the world, that all the shipes of the harbour, together wt their waires, ware his; of another who really beleifeth himselfe to be made of glasse, cryed horridly if any but approach him for fear they sould break him. his friends, at the advice of some doctor, took a great sand glasse and brook it on tyme on his head as he was raging in that fit: seeing the peices of glasse falling doune at his feet he cryed more hideously then ever, that he was broken to peices, that his head was broken. after he had calmed a litle they desyred his to consider that the glasse was broken, but that he was not broken; and consequently that he was not glasse. on this remonstrance he came to himselfe, and confessed he was not glasse. the same was practicat on a nother who beleived himselfe to be lame. we cannot forgett a story that happened at the bedlam at paris. gentlemen out of curiosity coming to sie the madmen, the keeper of the hospital be reason of some businesse he had could not go alongs wt them, whence he ordains one of the fools that was besyde to go alongs wt them, and show them al the madmen wt the occasions and nature of their madnese. the fool carried them thorow them all, showing that their was on mad for love, their another wt to much study, a third besottedly fool wt drunkness, a th hypocondriack, and so wt all the rest marvelous pertinently. at last as they ware going out he sayd: gentlemen, i beleife ye wondred at the folly of many ye have sein; but theirs a fool (pointing at him) whom ye'el admire more then them all, that poor fellow beleifes him selfe to be the beloved aposle st. john, but to let you sie that he is not st. john, and whow false his beleife is, i that am st. piter (for he chiefly held himselfe to be st. peter) who keips the gates of heaven never opend the door to let him in yet. the gentlemen thought wery strange to find him so deiply fooll when they reflected whow pertinently he had discoursed to them before and not discovered the least foly. they ware informed that he was once a doctor in the colledge of sorbonne, and that to much study had reduced him to that. it would appear he hes studied to profundly peters primacy above the rest of the aposles. the protestant churches throw poictou keip a solemne fast of octobre, wt the papists st. simons day. the occasion was to deprecate gods wrath which he showed he had conceived by reason he threathned them in sewerall places wt scarcity of his word and removing of his candlestick, since sewerall temples ware throwen doune, as that at partenay, etc. for that effect they sent of the religion, the eminentest amongs them in the province to the king wt a supplication. we had preachings. we eated no flech that day for fear of giving occasion to the papists to mock: we suped on a soup, fried egges, roosted chaistains, and apples wt peirs. sewerall schollers have made paction wt the dewil, under the proviso he would render them wery learned, which hath bein discovered. one at tholouse gave his promise to the dewil, which having confessed, they resolve to procede iudicially against him. since the dewil loves not iustic, they send a messenger to the place wheir they made the pact to cite him to compeir and answer. he not compairing they declaire him contumacious; and as they procede to condemn him as guilty, behold a horrid bruit about the hous and the obligation the lad had given him droops of the rigging[ ] amongs the mids of the auditors. we fand the story called _funeste resemblance_ not il of the scholler in lipswick university, who having killed on of his companions was put to flie, wheiron after a long peregrinatione he came to coloigne, wheir to his misfortune was a young man whom he resembled so neir that theirs no man but he would take on for the other. this young man had ravished just at that same tyme a gentlewoman of great condition: now the lawes of germany, as also of france, permits to pershue a _ravisseiur_, tho the women consent, if her parents contradict, criminelly for his life. on this our scholler proclus is slain in the streets for him; together with what followes. [ ] rooftree. thorow all languedoc and provence the olive tries is as common as the walnuts in poictou: oranges thorow much of france and in seweral places china oranges. lentils, the seeds rise and mile[ ] growes abondantly towards saumer: the papists finds them wery delicate in caresme or lent. its wonderful to sie what some few degries laying neerer the sun fertilizes a country. [ ] mil, millet. france is a country that produceth abondantly all that the heart of man can desire, only they are obligded to fetch their spices (tho they furnish other countries wt saffran which growes in seweral places of poictou, costes livres the pound at the cheapest) from arabia, their sugar from america and the barbado islands: yet wtout ether of the tuo they could live wery weill. a man may live years in france or he sy a french man drink their oune kings health. amongs on another they make not a boast to call him[ ] _bougre, coquin, frippon_, etc. i have sein them in mockery drink to the king of frances coachhorses health. [ ] _i. e_. think nothing of calling him. the plumdamy, heir prunecuite,[ ] they dry so in a furnace. [ ] prune, dried plum. about the end of octobre the peasants brings in their fruits to poictiers to sel, especially their apples, and that in loadened chariots. the beggar wifes and stirrows[ ] ware sure to be their, piking them furth in neiwfulles[ ] on all sydes. i hav sein the peasents and them fall be ears thegither, the lads wt great apples would have given him sick a slap on the face that the cowll[ ] would have bein almost like to greet; yet wt his rung[ ] he would have given them a sicker neck herring[ ] over the shoulders. i am sure that the halfe of them was stollen from many of them or they got them sold. [ ] lads, boys. [ ] handfuls. [ ] fellow. see jamieson's _dict_, s.v. 'coulie.' [ ] staff. [ ] 'a smart wipe.' i have not traced the expression 'neck herring.' when we have had occasion to tel the frenchman what our adwocats would get at a consultation, , crounes, whiles they could not but look on it as a abuse, and think that our justice was wery badly regulate and constitute. thorow france a adwocat dare take no more than a _quartescus_[ ] for a consultation, but for that he multiplies them; for a psisitians advice as much. surely if it be enquired whose ablest to do it, france by degries might be more prodigal this way then we are; but their are wiser. theris above adwocats at poictiers. of these that gets not employment they say, he never lost a cause, whey, because he never plaid one. also, that theirs not good intelligence betuixt the jugde and him, whey, because they do not speak togither. [ ] quart d'ecu, a silver coin, quarter of an écu. see introduction, p. xlii. the cardecue was a common coin in scotland. as to the privilege of primogeniture in france its thus, that the eldest carries away parts of thrie: as, for instance, the father is a man of , livres a year, the eldest hath , , the other goes amongs the cadets. al the capital tounes of provinces of france are frie from taille.[ ] [ ] a tax on persons not noble or ecclesiastic or exempted. the wood cannot be but wholesomer to dresse meat wt then our coall: also they impute the oftner contagions that happens in brittain to the smook of our coall, which grossens and thickens et,[ ] by consequence infectes the air, their wood smooking wery little. [ ] for 'it.' the french cryes out against the wanity of our king who most be served by his subjects on their knees, since that the knees sould be keipt to god alone; as also their king more absolute then [he] tho not served so. yea some have bein so impudent as to impute (count)[ ] the murder of our late king (which tymes hath bein casten up to me) as a iust iudgement of god on them for their pride. i cannot forget whow satyrically they have told this, saying that the peaple of great britain keip their kings at their beck, at their pleasure not only to bereave them of their croune but also of their life. i endewored to show them that they understood not things aright, that the same had bein practicat in france on henry the t: the cases are not indeed alike, since our king was brought to a schaffold, the other slain be a assasin, ravelliak, and regretted. to make the case iump the better, i remitted them to ther history to sie wt what publick consent henry d was slain be clement the jacobine, yet heir their was no iudiciall procedure as against our king. whence i had recourse to chilperick, whom the peaple, tho legittime heir, first deposed then cowed him, and thrust him in a monastry surrogating pepin his brother in his roome. this wexed them, they could never answer this sufficiently. [ ] interlined. sewerall tymes in france persones have suffered because they had discovered some plot or conspiracy against the king or estat and could not prove it. the law is the same wt us, tho it seimes to carry injustice. on all hands i am in danger: if i do not reveale it i am aequally guilty of the treason as the actors are; if i rewealle it, i am immediatly made prisoner, tortured to show all i know of it, put to prove what i say, in which if i failly i lose my life. what can a man do when he have no proofes? he most tho' reveall it and consequently lose his life; since after the truth sal appear and he sal be held be all to have died gloriously as a weill wisher to his country. its was strange of cardinal richelieu who know[ ] all things that past thorow france as if he had bein present, and of the most intimate sould not have spoken ill of him at poictiers but he sould have knowen it or dayes at paris. some imputed it to a familiar spirit he had, others to his spies he had every wheir. he was _toute en toute_ in france in his tyme. [ ] lauder's way of spelling knew. compare p. , slow for slew. the french mock at our sweit sauses and sugared sallades. their salt is a great deall better and more sawory then ours is. that which we parfait be the fire, which cannot but in some measure consume the strenth of its savorinesse, the sun denieng us it, they parfait be the sun. in bearn or navarre they make it be the fire as we do; but they make more cont of that which comes from the rochel, which the hollanders, dans, and others carries in abondance then of their. on the place wheir they make it its sold for a sous marky[ ] la livre, which costs at poictiers sous. in heurs tyme the sun will converte a great ditch full of sea water unto upright salt: that they showle out, fills it again, and so in moneth, may, juin, july, they make more salt then the fire maks in years in scotland: and wt lesse cost and lesse pain. that our salt is whitter, its the effect of the fire, since they could render theirs as white but it sould lose so werie much of its savory. their is a ile neir to that of st christople which hath montaines of salt. the sea casts in the water on the dry land and the sun convertes it immediatly, which beats their so violently that no corn can grow; it rises but its brunt or it come to the head. the sugar growes marvelously weill in it. [ ] _sou marqué_. copper coin worth fifteen deniers. that was the value of the _sou parisis_. the _sou tournois_ was worth twelve deniers. the day before great fests, as _les roys_[ ] _toussaints_, etc., their fellows that wt white surplices and a pigful[ ] of holy water wt a spung in it goes thorow al the catholick houses be-sprinkling the persons as also the house, and so sanctifieng them that the dewil dare not enter their; passing by the protestants houses as infected; or rather, as the angel who smote the first born of the egyptians past the israelits. at _toussaints_ al are in ther best cloaths. [ ] epiphany. [ ] jarful. of the fal of our first parents its enquired what might have happened in the case of the women alone sould have fallen, the man keiping his integrity: wheither the children would have bein culpable wt the mother, or innocent wt the father. 'do if any children had bein born before the fal they sould have bein exempt from the curse or not. 'o if our parents fell the same day they ware created. to who would be cains wife, ether his mother or a sister. upon what the scripture teaches us, that for the years the israelites ware in the wilderness their shoes nor their garments waxed not old, it may be enquired what they did for cloaths to their childeren that ware born in the wilderness, also theirs one that was years old, another , at their coming furth out of egypt, they had cloathes and shoes meit for them at that age, it may be demanded whow the same cloaths gained[ ] them when they came to be or year old. it seimes to be said that the cloaths waxt wide as they grew. [ ] fitted. it may be demanded also, whither it was really a miracle in passing the rid sea or give it was only at a low ebbe, since moses know weill enough both the sea and the desart, having feid his father-in-laws flocks their about long tyme. i demand, if our first parents had keipt their state of innocence whither they would have procreat their children in that same faschion that man and woman does now. it seims that they sould have copulated carnally, since theirs no other raison assignable whey god sould have made distinction of sex, since these sould have bein in wain: _at deus et natura nihil faciunt frustra_. on the other hand i dare not say they sould have copulate carnally when i consider the brutality and filthinesse of the act which does no wayes agree wt the perfection wheirin they ware created. on the supposition that they had keipt their innocence and begotten children, i demand whither the children at their coming furth of the bellie sould have had the vigueur that adam had when he was created; or whither they bit to be born litle that could nether speak nor go for the first quarters of a year as at present. this it seimes absurd to think, since that would have argued wery much imperfection in the man, which i wil be wery loath to think him capable of as he was in that state: the other syde seimes as absurd, since its inconceivable to think whow ewe could have born a strong, robuste man of adams strenth at the age of years in hir womb. i demand also whither adam after he had lived many hundred years on earth sould have died, gone to heaven and left the earth to his posterity, and so after a long tyme his posterity to theirs. necessity seimes to say that it sould have bein so, since that if the fathers had not so made way to their sons, or some ages the world sould not hold them all, for i suppose all that hes lived in the world since adam ware on the world at present, wt them that are living on it even now, i am inclinable to think that we would be put to seik some other new world besyde americk to hold them. to think on the other hand that he sould have died is as absurd, since its confessed that the trie of life was given him as a sacrament and signe he sould not lay under the strock of death, for as death comes from that contrariety and discord of the elements of whilk our bodies are composed, so the fruit of this trie, at least typicaly, had the wertue of maintaining the contrary elements in a parfait concord and by consequence of vindicating a man from death. i demand in what season of the year the world was created. i find a great rable of the scolasticks, as testifies lerees[ ] in his physical _disputa. de mundo_, teaching that it was in the spring tyme; and that the sun began his course in the first degree of aries; that it is from this that the astrologians begines their calculations, at aries as the first signe of the zodiack; that it was at this tyme that christ suffered, restauring the world at that same season wheirin it fell. but who sies not the emptinesse of their reasons. theirs another rank who think it was created in the automne, since that moses mentioned rip apples, which in the spring tyme are only virtually in their cause. others wt greater reason condamne al thir autheurs as temerare and rash, since that spring in our hemispbere is automne in the other. [ ] lery or leri, jean de, was a traveller and protestant divine, but i do not find trace of such a work as this. about the bi-location of bodies, i would demand the popelings, in the case wheirin a army is made up of one man replicate in places, whither he shall have the strenth of one man or : if one be wounded or slain, if all the rest shal be wounded or slain: also whither he can be hot at paris and cold at edin'r, headed at paris, hanged at edin'r, dy at paris, live in good health at edin'r, wt infinite other alleaged by lerees and others. when he was at poictiers a gentleman accused of seweral murders and imprisoned escaped in womens cloaths about the gloaming, whom we saw passe thorow the street, giveng al ground of suspicion by the terror and amazement he was in; letting a scarf fal in on part, his napkin in another, his goun taille fell doune in a thrid. yet none seazed on him. at the port of the toune he had a horse waiting for him on which he escaped. a litle after that a mareschal, or ferrier, or smith felled on of his boyes at the scotes walk because he demanded money of him, escaped to lusignan, wheir he was taken. just about the same tyme on a stormy, vindy night a rich candlemakers (which office is not so dishonorable heir as wt us, their daughters wil be going in their satins) booth was broken up, pistols, which he had receaved in payment just the day before, and which he had left in a box of the table, stollen. persones wil do weill then to keip quiet any mony they have as weill as they can: according the tenor of my fathers letter. on the day after _toussaint_ is a feste til noon called _les trespassez_[ ]. the papists prayes for their dead ancestres, over their graves mumbling so many paters and so many ave'es. [ ] _trépassés_, all souls. they have a apple in france called _pomme de calvile_, its all rid thorow to the wery heart, _pomme blanche_. in case of fire in a toune the neirest bel, or the bel of that paroiche wheir it is, ringes. in octobre heir, tho reasonably sharp, they have upright[ ] summer weather, its so fair. [ ] equivalent to 'downright.' our peirs that growes at home are all out as delicious, vitness the carnock, as any we have eaten in france, tho they grow their in greater abondance. as to the apples we most not conteste wt them, since beseids many brave sorts they have the pipin, which i conceive most be that they call reynett, brought unto france from italy by queen blanche, mother of st. louis: it was first fund in africk. the _pomme minion_ is better then any of ours: our marican seimes to be a degenerat sort of it. the silver hat-strings are much in use at present: they sell them by the weight. the tabby doublets wt the silk [called wats][ ] furring wtin are also in faschion: wery warm in winter, cost franks. men and women from the least to the greatest, yea not the wery keel wifes and fruit wifes, but they have manchon muffes. a man cannot get a good one under a pistol: some of a meiner size are sold for or francks. our best furrings comes out of musco'e. chamois gloves and linnens mad of goats skines, which are found better in poictou then in any other province of france, are not in so great cont[ ] wt them as wt us; yet they find them wondrously warm; some thinkes them strenthning and corroborative of a feeble hand. we have sein som buy them to lay swallings of their handes. perruvicks, besydes they are most faschious, they are destructive both to the body, since they are wery unwholsome, engendring humeurs; as also to the purse, they being extravagantly dear thorow all france, especially at paris, wheir its a wery mean one a man will get for pistols; and a man can have no fewer then at a tyme, on to change another. [ ] interlined. wats, _ouates_. [ ] estimation. we have spoken wt some catolicks that have bein at geneve. the disciplin is very strick their yet. a catholick if a craftsman they suffer him to excerce his trade moneth: they'le let him stay no longer. if a man swear their, he'el be layd in prison, lay their howers wtout meat or drink. a man cannot speak wt a woman on the street wtout giving scandal. the sabath is keipt as we do, nothing to be sold their on it, as thorow france its the greatest market day of the week, the peasants bringing in al they have to sell in abondance. its the resort of al the banished germans, italians and other strangers that would enjoy the excercise of their religion freely and purely. in shaving a man, its impossible for a frenchman to cut a man; they have such a net way of baging the flech: also it would do a man good to be washen wt their water, whiles rose water, whiles smelling of musck: tho their fingers stinkes whiles, the french dighting their staille[ ] wt their fingers, thinking it prodigality to do it wt paper: yett ther kings of old did so, to teach their peaple frugality: hence it is that the frenchman wil not eat til he wash: wil not eat wt ye til ye wash: for my oune part i would not eat wt a frenchman til he wash. [ ] foundation, breech. fresch egges are wery dear wairs in france. at paris they are pence a peice, at poictiers a shiling a dozen. they fry their egges differently from us: they break them first in a plate: in the meantym they fry a considerable lump of butter, then pours in the egges salting and spicing them. their hens are not so fertile as ours. our speaking of egges mindes me of christophorus colomba lusitanian, a experienced skiper, first discowrer of the new world, tho he had gotten some encouradgements and conclusions about it from on vespucius americus florentin, from whom it gets its denomination of america. colomba on a tyme walking on the harbory of lisbon, a toune knowen for the emporium of the east, such a boystrous wind blow to him iust of the sea that he could not get his feet holden; on this he began to reason that the wind could not come of the sea, but that of necessity their bit to[ ] be land beyond that sea, tho unknoun, of whilk[ ] that wind bit to[ ] blow, for the vapors or exhalations drawen of the sea are not so grosse as thess that montes of the land: and be consequence cannot produce such boystrous vindes. this his opinion he imparted to sewerall: at lenth it came to ferdinando'es ears, who at the persuasions of isabella his queen, a woman of greater spirit and more action then hir husband, equippes columba a fleet, wt which after he had born out many stormes he gained his point, returning wt some few of his shipes that ware left him loadened wt the gold of the country. [ ] must. [ ] i.e. though unknown, off which. the king accepted him wery kindly, as he had reason, but his courtiers out of that enwious nature of detracting from the merites of others, thinking that theirs no way of gaining themselfes credit unless they backhit at others, each most passe their seweral werdict on his attempt, al concluding that it was nothing, that any man might have done it. the honest, silly man hears them at this tyme patiently, when they have al done he calles for a egge: desires them al to try if the could make it stand on the end of it: they, not knowing his designe, try it all: it goes round about al the table, not one of them can make it stand so. then he takes the egge, brakes the bottome of it, and so it standes upright, they being al most ashamed, else further he addes, as now after i have let you sie whow to do it, ye think nothing to make a egge stand upright: tho none of you could do it before: sikelike after i have found you the gate to the new world ye think nothing of it tho ye could not have done it yourselfes. they thought themselfes wery far out. horrid and unchristian was the outrages the spaniards committed on the poor natives. they slow them like beasts. further they carried over whole shipeful of mastives which they hunted the naked indians with; and i know not how many millions ware torn this way. the sogers ware so beastly that they could not refrain from laying and abusing the indian women, which gave them the _verole picot_ or french pox, surely the just iudgement of god, wt a iudgement not knowen to former ages, punishing men wt shame in this world. the spaniards brought it from america to naples, infected some napolitan women wt it, whence called _morbus napolitanus_; thir women gave it to some french sogers who brought it unto france, whence called wt us french pox, now its become universall. philip of spaine who died august was owergoon wt it, they say. the indians calles the spaniards veracochié, which in their language signifies scume of the sea. out of contempt and because they assaulted them first from the sea, they curse the sea always that vomited out sick monstres. some chances to tel them of heaven and hell: wheiron they have demanded wheir the spaniards would go to: they hearing that they would go to heaven, they sayed they would not go their then, for the spaniards ware to bloody and cruell to stay wt. to informe our selfes fully of the singularites of america and other things it will be fitting for us to buy _pancerollas[ ] vetera deperdita_ and his _nova reperta_, as also howels[ ] letters, osburnes[ ] advices to his sone, etc. [ ] panceroli, guido, - , italian jurist. the work referred to is _kerum memorabilium jam olim deperditarum at contra recens atque ingeniose inventarum_. hamburg, . [ ] howell, james, - , historiographer royal to charles ii., published several series of _familiar letters_. [ ] osborne, francis, - , author. _the advice to a son_ was written for his son when at oxford. its a custome in pictou that if a gentlewomen would have hir galland passe his gates[ ] or any other to a other they have no more ado but to set the wood on one of the ends of it in the chemly and they wil not readily stay. [ ] go away. in france the father of the bride, if on life, accompany'es his daughter to the church; the worthiest of the company leading hir home, as wt us: yet at saumur the bridegrome leds home his oune spouse. in france they observe that they have usually great rains about martimess, which we saw werified. when a great rain hath fallen we have sein al sortes of peaple, prentises wt others, wt racks and shovles cume furth to cleange the gutters and make the passage clear that it may not damme before their doores; for the streets are but narrow at poictiers and none of the neitest. orleans hath wery neit streets, amongs others on that goes from the end of toune to the other. a woman laying in child birth they call _commair_. our curds and whey (which they make not so oft as we) they call _caill botte_.[ ] milk is a great delicat in france. i never hard it cried up and doune the streits, as its wt us, tho they have many cries we have not. [ ] _caillebotte_, curds, they report of their sorciers and sorciares victches that they have their assembles and dances wt the dewill, especially the evening of _marde gras_. they look on the _corbique_ or raven as a bad prognostick of death; the pie tells that some strangers's to come. the jesuites whipes their scollers wery cruelly, yea they whipt on to death at poictiers: yet the father could obtaine nothing against them. the greatest affront that can be done to a woman is to cut the tayle of hir goune from hir, or even to cast ink in her face, since that a lovely face is the principal thing that commends a woman, hence as the greatest reproach a man can be upraided wt is _bougre_ or _j'en foute_; so the greatest of their railings against a woman is to say, _vous avez eu la robe coupé au queue_. it hath bein practicat on some. a man would take good heed that he never desire a woman a drink in company, for the frenchwomen take it in very il part, and some hath gotten on the cheak for it. they think a man does them honour in making them go before him; so that a frenchman wil never readily steep in before any woman of faschion, tho it be just contraire in our country. the of november is st. martins day, a very merry day in france. they passe it in eating, drinking and singing excesivelie. every one tasts his new wine that day, and in tasting it takes to much; their be wery few but they are full. the suisses and alemmands (who drink like fisches, as we know in mr. le baron and his creatures at orleans, each man each night could not sleip wt out his broll[ ] or pot, which the frenches their _l'abbé flacour_ and _brittoil_ mockt at) findes only good festes in france, mr. st. martin,[ ] mr. les trois rois, and mr. marde gras, because al drinkes bitch full thess dayes. [ ] i have not found this word elsewhere. [ ] it was customary to speak of saints as monsieur st. martin, mme. ste. catherine, etc. lauder extends the usage (whether correctly or not) to mardi gras. on the morrow after opened the palais, which sits neir moneth togither, whither we went to sie the faschion. first their massers have not silver masses as ours have, only litle battons, yea the massers to the parliament at paris have no more. next none most bring nether swords nor spurs wtin any of the bars: the reason whey swords have bein discharged is because that judges and conseillers have bein several tymes assasinate on the bench be desperate persons poussed forward be revenge; whence a man bringing on wtin the bar wil be made prisoner: yet we had ours the first day. the judges being sit doune on the bench, the kings advocat began a harangue, reading it of his papers, wery elegantly extolling the lily or _fleur de lis_ above al other flowers, and then france and its kings above all other nations, alleging that the whitnese and brightnese of the lily denotated the purity and integrity of justice thats don in france. he ending, the president in his scarlat robes (for they war al so that day wt their nooked black bonnets lined wt scarlet) began a very weill conceaved harangue in the commendation of justice and vertu. that being done they gave their oath wt the advocats and procureurs or agents (for they swear anew every sitting doune of the palais, when we give but one oath for all wt us and that at the entry vnto to the office); the judges that they sal passe no sentence contrare to ther conscience, but that they sal judge _ dum allegata et probata_; the advocats that they shal never patronize a false cause; and if any cause they have taken in hand appeir after to them false, that they sall immediatly forsake it: that they shal plead the causes of the widow and orpheling, etc. the praesidial of poitou at poictiers is the greatest of france: yea it consistes of mo conseillers or judges (to wit, about wt kings advocats, kings procureurs), is of greater extent then several parliaments: their be not so many membres in the parliament of grenoble, which is for dauphiné, etc. the parliament of dijon for burguiogne hath not so great extent. the song they sing at st. martins is thus: 'pour celebrer la st. martins, il nous fault tous chantre et boire celuy quy a converty l'eau au vin pour luy que ne doibt on point faire a[ ] le bon vein, bon vein, bon vein, chasse de la melancolie je te boire[ ] jusque a la lie.' [ ] probably for ah! [ ] for _boirai_. my host after his drinking of his glasse of wine, usually lifting up his eyes to heaven in admiration, shakt his head (as we remember charles his nurse did at the seck),[ ] crying, oh but win is a good thing (tho poor man i never saw him drunk), protesting that he would not live in our country because he could not drink ordinarly win so cheap. [ ] sack. its a little strange to sie what alteration a sad accident may procure in a man: befor that scandal he fel under by his wife wt mr. douglas, to wit, in the tyme of mr. hope and my cousin mr. elies (as he and his wife confesses), he was one of gailliardest, merriest fellows that one could find amongs , ever since that, tho' he reteans something of his former gailliardness, taking it by fits, yet he is not like the man he was, as madame hath told me. i seeing him mo jalous then a dog of his wife because she loved so weill to play at the carts and wandring from hir house to hir commorads, likt better their houses then hir oune. oh, but she was blith when he went to the country upon any affair, she minding him of his affairs at partenay or elsewheir to have him away; and in the interim from the morning to howers at even, even whiles at midnight, she would not have bein wtin a hower. there ware only or of the women of the religion that ware players at carts (as mr. dailly reproached sewerall tymes his wife, that she bit be on of them) all thir, when he was goon, come branking[ ] ay to hir house, collationing togither. the first moneth i was their she used all the persuasions she could to draw me to be on of their society, or at least to bear hir halfe in the gaine and the losse (whiles she would loss crounes, tho she made hir husband beleife she wan), but i would do none of them (remembering my fathers expresse to beware of play, especially at carts and wt sick creatures), alleadging always that i knew nothing of the play. they offered to learn me, for they came seweral tymes a purpose to draw me on, but i sayd i had other thing ado. i am exceedingly weill satisfied at this present i did not engage. she hath told me ay, o mr. hope have played wt us: i replied mr. hope might do what he pleased. return mr dailly when he please he could never find his wife wtin: some tymes he would have come home at howers wheir she expected not: when she would come home and find him their, oh whow coldly would she welcome him and the least thing would that day put her out of hir patience, for she had ether in the afternoon tristed to come again to them, or tristed them to come to hir. [ ] prancing, tripping. thus shortly out of many things, henry the 't was a most galliard, pleasant, and merry prince: his queens marguerit (as we show else wheir) was thought to play by him. on a tyme as he was making himselfe merry dancing a ballat wt some of his nobility, each being obliged to make a extemporary sonnet as it cam about to him to dance, the our-word[ ] being, _un cucou mene un autre_, it fel the marquis of aubigni (who was of scots progeny, his goodsire was robert stuart mareschal of france under françois the first; it was this aubigni who told henry when he was wounded by the jesuists scoller in the mouth, god, sire, hath suffered you to be stoobed in the mouth, etc.) to dance wt the king in his hand and make his couplets, which i fand right quick: [ ] ourword, overword, refrain, like ourcome and ourturn. 'si toutes les femmes vouloyent les hommes cuco seroyent; les roys comme les autres, un cuco mene un autre,' henry confessed he had win at him in his sonnet. follows some enigmes found in a romance penned by beroaldus,[ ] named _le voyage des princes fortunez_, wtout the explication, whence mr daillé set me on work to resolve them: resolved sewerall betuixt us. [ ] beroalde de verville, françois, - , philosopher, mathematician, and author of lighter works. _the voyage_ was published in . paris. un pere a douze fils qui lui naissent sans femme, ces douze aussi sans femme engendrent des enfants; quand un meurt l'autre naist et tous vivent sans ame. noires les filles sont, et les males sont blancs. (the year.) un corp qui n'a point d'ame a une ame mouuante, n'ayant point de raison il rend raison des temps; bien quil n'ait pas de vie une vie agissante sans vie se fait vivre marchant sur ses dents. (a cloack.) their follows that of a coffin that none care for, then, voulant aller au ciel, si je suis empeschée, les ieuz des assistans en larmes couleront; si pleurent sans regret ie ne suis pas faschée car quaud j'iray au ciel leur larmes cesseront. (its rick.)[ ] [ ] reek, smoke. le vivant de moy vive sa nurriture amasse je recoy les vivans haut et bas se suivans lorsque ie suis tué sur les vivans je passe, et ie porte les vifs par dessus les vivans. (a oak wt its fruit feiding swine, then cut and made in a ship cairyes men over fisches.) bienque ie sois petit i'ay une soeur geante qui me rends de grands coups qu'encore je lui rends; nous faisons ceste guerre entre nous bien seante. car c'est pour la beauté de nos propre parens. (the hammer and smiths studie.) je n'ay sang, os, ny chair, nerfe, muscles ni artere, bien que i'en sois produit et n'en tien rien du toute propre a bien et a mal je fais effect contraire. sans voix parlant apres qu'on ne a trunche la bout. (a pen.) non male, non femelle, ains tout oeill en substance sans cesser il produit des enfans differens. de la mort des ses fils ses fills[ ] ont naissance et d'icelles mourant d'autres fills sont naisant. [ ] for _filles_. (the sun wt the day and night.) selon mon naturel ie m'escoule legere. mais par fois mon voisin m'estraint de ses liens. adonque on me void la mere de ma mere et puis fille de ma fille en apres ie deviens. (ice reduced to water.) ma soeur est comme moy de grande bouche fournis. elle l'a contre bas et moy deuer les cieux i'ayde aux conservateurs d'appetit et de vie-- et ma soeur (as i friend to the sick, so she) aux coeur devotieux. (a bel and the apothecaries morter.) d'une estoffe solide a point on me fait faire pour servir au endroits ou loge la soucy. mon maistre me cognoit lui estre necessaire, car ie lui garde tout, il me tien chere ausi. (a key.) elle a le poill dedans et dehors est sa graisse et si peut elle ainsi au jour failly praevoir mesme en plein nuict les autres elle adresse faisant voir a plusieurs ce quelle ne peut voir. (a candle.) on cognoist au oiseau qui n'a point de plumage qui donne a ses petits de son teton le laict. when it sies we sie not; when we sy it sies not. (a batt.) ouvert de l'un des bouts une queue on me donne afin qu'avec le bec je la traine par tout, puis conduite au labeur que ma dame ordonne je laisse a chasque pas de ma queue le bout. (a neidle.) trois ames en un corps distinguées d'essence ensemble subsistoyent not knowing they ware so many, deux enfin ont pris l'air, puis de mesme apparence en trois corps distinguez chacum les a peu voir. (a woman wt tuines.) we saw a book, originally written in latin by a spaniard,[ ] translated in french, entituled, histoire du grand royaume de la chine situe aux indes orientales, contenant la situation, antiquité, fertilité, religion, ceremonies, sacrifices, rois, magistrats moeurs, us,[ ] loix, et autres choses memorables du dit royaume, etc., containing many things wery remarkable and weill worth the reading. showing how its bounded on al hands, having the tartars for its neirest neibhours, whom it descrives whow it was discovered first by the portugais, and the spaniards at mexico in americk. [ ] gonzalez de mendoza. [ ] usages. to the wondrous fertility of the country, much of it laying to the same climat wt italy, the inhabitants addes great industry: no vagabonds nor idle persons being suffered amongs them but punished vigorously. they have no cloath. the meanest of the natives are cloathed in silk: its so rife their that its to be had almost for nothing. france also hath some silk wormes wtin it selfe; but besydes the peins they most be at to feid them wt fresch mulberry leaves, they have no great abondance of them, whence they draw the most of their silk from italy wheir its in great abondance; as florence, litle republic of lucques, messin, as also from grenade. oranges of chine are knowen for the best of the world. cannel[ ] (which growes not in france) is in its excellency their. [ ] cinamon. in selling and buying all things solid they weight them, even their mony, which hath no stamp, as in selling selks and other sick things, wheirin ther cannot be so meikle knavery as in metting them by elles. great abondance of silk caddez[ ] cotton produced by a trie (not growing in france, but just as the tries distilles the pick)[ ] as of musk, wt the manner whow they make it. [ ] a kind of cloth. [ ] pitch. the realme is found some leagues in longitude; in circumference. its divided unto great provinces, each plenished wt wast cities, som of them taking dayes to compasse them. their follows a description of the natural disposition, traits of face, sorts of cloaths wt the excercises the men and women are addicted to. they are al pagans, worshiping plurality of gods, seweral things in their religion symbolizing wt the christian, which may be imputed to some seeds of the gospel the aposle thomas sowed their in going to the indians, wheir he was martyred. divers good laws they have; one discharging expressely and prohibiting al natives of going out wtout the royaume, for fear of bringing in strange customes, descharging any strangers to enter wtout express licence. the rights of succession of children to parents are almost the same as wt us. by infallible records to their admiration they fand that both the art of artillery, invented as was thought in germany, and printing, invented, as is beleived, by jean de guttenberg, allemand, not years ago, ware amongs them, and of al older standing. infinite other things we remit to be sought in the _histoir_. we are informed that a lardship of livres rent wil sell in france for a , livres; and by consequence a place of , livres a year at a , crounes;[ ] the prix being ay years rents. it may wary in many places of france. location-conduction[ ] of lands, called their ferming, are wery usuall in france; yea, the most part of gentlemens houses rises wt that, having bein first fermier or goodmen[ ] (as we calle them) of the place. the ordinar tyme of the take is or year, not on of a , and yea being wiser then we wt our and doubled year takes.[ ] in the contract they have many fin clauses by whilk the fermier is bound to meliorat the ground in all points as by planting of hedges and fruit tries, substituting by ingraftments young ones in the room of old ones decayed; finaly he is tyed to do all things comme un bon pere de famille feroit. [ ] the crown is hero taken at livres, or s. sterling (taking the livre at s. d. sterling). [ ] _locatio conductio_, the roman contract of letting and hiring. [ ] according to jamieson's _dict_. goodman meant ( ) a proprietor or laird, ( )then a _small_ proprietor, ( )latterly, a farmer. [ ] tacks, leases. we have already exemplified the hatred thats betuixt the castillan und portugaize, we'el only tel another. a spaniard bischop was once preaching on that, let brotherly love continue, he say'd the french are our brother, the italian our brother, allemand, scotes, english, etc., our brether; yea, i durst almost say that the portugaiz is our brother almost also. many other stories i could report heir, as that of the poor man who fand himselfe marvelously filled wt the smell of meat in a cooks choop happened at paris, and how the cook was payed by the gingling the mony, related by cleark in his exemples: that of the gentleman runing a race and giving the last to the dewil, and the dewils depriving the last of his shaddow; tho i can not conceive how the dewil can hinder a body to cast a shaddow unless he perpetually interpose himself betuixt that man and the sun: that of the english to be married to a scotsman, whom william broun was admonishing of hir duty, that the man was the head of the woman, she quickly replieing that he bit to be her head, she bit to be the hat on his head above him, william sayd, that he would take his hat then and fling it amongs his feet: that of the tooth drawer and the lavement out of the history of francion:[ ] that of him who playing at the bowls in john tomsons greine wt a english captaine, casting out togither, wrong his nose so sore til it bled againe; being pershued by the englishman for the wrong done, and put to his answers, being demanded of the fact, he replied he had only wipt his nose a litle straiter than he used to do his oune: that of king james and the collier, ye sould obey a man in his oune house: that apparition henry the t saw as he was hunting in his pare at fontainbleau, crying, _amendez vous_: also that daughter of brossier that feigned the demoniack so weill wt its circumstancies, to be found in du serres[ ] history of henry the t.: that of the scotsman at paris who wan so much be a slight promising the peaple to let them sy a horse wt its taille wheir its head sould be: that of on martin merry, who on a tyme pressing to win in to sie the king, the great tresorier of england was at the door, who seing him so pert demanded him whither he would go; he replied, he would sie the king; the thersorer told him he could not sie the king; then, he replied, i know what i'le do then; the thresorer thinking he was bravado'ing him, demanded him what can ye do, sir; he answered, i'le go back the way i came then, my lord; he finding the answer wery good, he immediatly went and told the king what had passed, who commanded martin to be brought in and fel to and talked wt him. also the story of the baron de la crasse, place, place, etc. also the comoedy intituled les visionnaires. also the reply of a excellent painter who had children wery deformed, on demanding whow it came that he drow sick exquisite portraits and had such il made children, ye neid not wonder at that, sayd he, since i make my portraits in the day and my children in the night. [ ] see p. , note. [ ] jean de serres, - , author of works on the history of france and theology. a man may get his portrait drawen in france, especially at orleans, for a pistoll. j. ogilvy'es hal is all hung about wt portrait's of gentlemen, al scots, save only one englishman (whom lostis[ ] alleadged to have the manliest face of all the company; we on the contrare, that he had the sheipest), one womans called richeson, whom my l. rutherfurd[ ] was in great conceit of; johns oune portrait is tuise their, his eldest sones as a litle boy, his daughters, my lord [bards],[ ] newbyths,[ ] my lord cinhoules[ ] brother, wt whom j. ogilvie came to france as page; sir robert flecher of salton, who died the winter before i came to france; david ramsay, a brother of the provests,[ ] so like him that i took it for the provests at first. mr. hayes was the last that was drawen, who parted from j.'s house to make the tour of france the march before i arrived, wt divers other pictures. at mr. douls house we remarked the same in his sale;[ ] only they ware all englishmen, save on sword whose father was provest of aberdeen, and who when king charles the t was at newcastle chapt him on his shoulder and impudently told him, he had spent our meikle. [ ] query, l'hostesse, l'hôtesse, mme ogilvy. [ ] probably andrew rutherfurd, first lord, a lieutenant-general in the french service, created lord rutherfurd, . governor of dunkirk, earl of teviot, , governor of tangier, where he was killed, . his patent as lord rutherfurd entitled him to bequeath the peerage to whom he pleased, and he left it to his kinsman sir thomas rutherfurd of hunthill, served heir , died . [ ] interlined. [ ] sir john baird, advocate, , lord of session (title newbyth) , superseded , restored , died , aged seventy- seven. [ ] kinnoul's. [ ] sir andrew ramsay, afterwards a lord of session (title abbotshall). lauder married his daughter. [ ] _salle_, hall. we most not forget the capucin, who, gazing on a stage play, had his prick stowed[ ] from him instead of his purse. also the good sport we have made wt spiny when we presented him the rose filled wt snuffe, dewil! willain! ye most be hooled,[ ] ye most, etc. i'm sorry for your case, etc. also that we made wt dowy when on night in our basseler[ ] year at night after the examination we put out the candles, i skein[ ] brist him til he farted; then he brought mr. hew on us, he crieng, douglas, doug.; lauder l., my hat amang you. russel lay like a mart[ ] in the midst of the stair; wt many other sports. [ ] stown, stolen. [ ] husked, probably gelded. [ ] bachelor. [ ] possibly j. skein (skene); brist = squeezed. [ ] carcass of an ox or cow killed about martinmas for winter provision. the laws of france permits, or at least forgives, a man to slay his wife if he take hir in the wery act of adultery; but if he slay hir after a litle interwall, as if he give hir lieve to pray a space, he is punished as a murderer, since its to be praesumed that that iust fury which the willanous act of his wife pouses him to, and which excuses his fact (since according to solomon even wery jalousie is the fury of a man) is layd in that interwal, so that he cannot be excused from murder. both hath bein practicat seweral tymes in france. the punishment of women that beats their good men in poictiers is that they are monted on a asse wt their face to the taile, in this posture conveyed ignominiously thorow all the toune: the hangman accompanieng them. we most not forget the sport k. james made wt his fool who to chasse away the axes[ ] had flied[ ] him, and whow the poor fellow was found dead. [ ] ague. [ ] frightened. the k. of france drawes more then a million a year as revenues out of france besydes extraordinary taxations. theirs a wery observable difference betuixt on thats drunk wt win and on drunk wt beir, the win perpetually causes to stagger and fall forward; the beir and alle[ ] backward. [ ] ale. a women drowen[ ] is carried wt the water on her belly, a man on his back. [ ] drowned. their ware peasants in a french village on a tyme discoursing about the king. they sayd it was a brave thing to be a king. if i ware king (said the first) i would rest wt ease all the day on that hy stack wt my vomb up to the sun: the nd, if i ware king i would eat my sup every day swimming wt bacon: the d, i would feid my swine _a cheval_: the t, alas, ye have left me nothing to choose; ye have chosen all the best things. francois the t was a king that loved exceedingly to discourse and hear the minds of al ranks of peaple, as even our james. for that effect he seweral tymes disguised himselfe and all alone gon to discours wt common peaple. on a tyme he fand a poor man digging a ditch: he demanded what he wan every day by his peins. pence at most, quothe he. what family have ye? i have my wife, bairns and my old mother whom i nourish; but, further, i most divide my pence into parts every day: by on part i pay my debt, another i lean, the thrid, nourishes us. whow can that be, can turners[ ] maintain you a whole day? sir, i give to my old mother every day as payment of what she bestowed on me when i was young; i lean[ ] to my children, that when i am old and cannot work they may pay me again; the other is betuixt my wife and me. the king proponed this to the courtiers to resolve him, etc. [ ] turner, a copper coin equal to two pennies scots or one bodle. thus the english pence, which the man got, are equal to sous or shillings scots, and so to deniers or pennies scots, or turners. [ ] lend. in france a man wil do weill to take heid what women he medles wt; for if he get a woman of degre below himself wt child he most ether mary hir or tocher hir: if his aequal, ether marry hir or be hanged (which few chooses): if she be far above his condition (especially if a valet engrosse his masters daughter or sister not married) he is hanged wtout al process _brevi manu_; the maid is thrust unto a convent to lead repentance their for hir lifetyme, since she hath prostrat hir honor so basely. while i was at poictiers a young fellow got a wanton cocquette, a cream keiper, wt child. for fear he sould be put to marry hir he quietly went and enrolled himselfe amongs the sogers whom the king was levieng at poictiers. she gets notice of it, causes clap him fast and lay him prisoner. the captain came to seik back his soger, since he was under the protection of the king, but he could not praevaile: they replied, if he war their for debt they would villingly release him, but since he was criminal they could not. a soger may make his testament _quolibet modo_ in france: he may write it on the sand, the dust as his paper, his sword he may make his pen and his blood his ink, according to justin. t. institut.[ ] _de testam. militis_. [ ] justinian, _inst_., . ii. seweral tymes they have bein moneth wtout a drop of rain in france, in which cases they make a great deall of processions to obtain rain, tho they never do anything. some winters it freezes so hard wt us (as mr. james [p. ramsay][ ] is author, to wit, that winter after the visitation in when the colledge was translated to lighgow),[ ] that in a basin of water after ye have lift your hand out of the water ere ye dip it again it was al covered wt a thin striphen[ ] ice, and the d, t, etc. tymes. [ ] interlined. it appears to be a correction. patrick ramsay was 'laureated' in . [ ] the plague in edinburgh, - , obliged the university to remove to linlithgow for a few months.--waldie's _history of linlithgow_. [ ] striffan, film. on the of november opened the law university at poictiers, at present the most famous and renouned in france, usually consisting of above tuo scholers, some coming to it from navarre in the very skirts of spain, sewerals from tholouse, bordeaux, angiers, orleans, paris, rouan, yea from berry it selfe, tho formerly bourges was more renouned--their's almost nothing to be had their now--and tho in all these places their be universities. on its opening mr. umeau, our alex'rs antagonist, and who that year explained of the d.,[ ] belonging _ad nuptias_, made a harangue of wery neit latin, which is the property of this university. his text was out of the 't book of the c.t.[ ] _de condictio indeb. l., penultima_, whence he took occasion to discourse of the discord amongs the jurise.[ ] raising _quoest. 'o, utrum recentiores sunt proeferendi antiquioribus: 'do, utrum juniores natu maioribus_, wheir he ran out on the advantage of youth: _quot video juvenes candidatos tot mihi videor videre aequissimos servios, sublimissimos papinianos gravissimos ulpianos, et disertissimos cicerones: quod plura[ ] stellae indubio[ ] sunt jae magnitudines in sphaerâ nostra literariâ._ [ ] digest. [ ] code, title. [ ] jurisconsults. [ ] query, _plures_. [ ] query, _sindubio_. the rector of the university was their, the mair, the eschewines, the president of the palais, the university of the physicians, wt a great heap of al orders, especially jesuits. we might easily discover that basenese we are so subiect to in detracting from what al others do'es but ourselves in that groundless censur of many things in this harangue which our alex'r had wt another of his partizans. mr. filleau (very like edward edgar) gives a paratitle on the title _pro socio_: he is on of the merriest carles that can be, but assuredly the learnest man in that part of france, for the law. _pro socio, pro socio_, quoth he, whats that to say _pro socio_, trib.[ ] speaks false latin or non-sense, always wt sick familiar expressions. [ ] tribonian. mr. roy, whoss father was doctor before him, explained that year t.c.[ ] _de rescindenda vendit_. mr. gaultier, who left angiers and came to be a doctor their, explained the title of the canon l.,[ ] _de simoniâ et ne quid pro spiritualibus exigatur_. [ ] title of the code. [ ] lex. for mr. alex'r its some years since he came to france; he had nothing imaginable. seing he could make no fortune unless he turned his coat, he turned papist; and tho he had passed his course of philosophy at aberden, yet he began his grammar wt the jesuits; then studied his philosophy, then married his wife (who was a bookbinders wife in the toune and had bein a women of very il report), year old and mor, only for hir gear, and she took him because he was bony.[ ] studied hard the law (pacius,[ ] as he told me, giving him the insight) and about some year ago having given his trials was choosen _institutaire,_. he is nothing wtout his books, and if ye chap him on that he hath not latley meditate on, he is very confused. he is not wery much thought of by the french, he affectats to rigirous a gravity like a spaniards, for which seweral (as my host) cannot indure him. also his pensioners are not the best treated. we have sein p. and d. humes seweral tymes breakfast: they had nothing but a litle crust of bread betuixt them both, and not a mutching botle of win for my.[ ] i never almost breakfasted but i had the whole loave at my discretion, as much win as i please, a litle basquet ful of the season fruites, as cherries, pears, grapes: in winter wt apples. also by ps confession he drinks of another win, better than that his pensionars drinks of. also if their be on dish better then another its set doune before him: he chooses and then his pensionars when its iust contrare wt me. [ ] bonnie. [ ] pacius, julius, - , jurist. [ ] me. he began his lessons of november. a frenchman casting up the rubrics of the d.,[ ] he fand _de edendo_. he showed himselfe wery offended whey tribo. had forgot, t.[ ] _de bibendo_ also. [ ] digest. [ ] titulus. we most not forget to buy gellius and quintilians declamations at paris. a coachman was felled dead dressing his horses; masons ware slain at the carmelits by the falling of a wal on them. mr. alex'r in salaire hath only livres, the other each a , also seweral obventions and casualities divided amongs them, of which he gets no scare, as when any buyes the doctorat. he is a hasty capped body. once one of his servants brook a lossen,[ ] he went mad, and amongs other expressions he had this: these maraudes[ ] their break more to me in a moment then i can win in tuo moneth. they have no discourse at table. he cars not for his wife. that night the _oubliour_[ ] was their and she would not send another plat[ ] he threatned to cast hir and hir family over the window. [ ] pane of glass. [ ] rascals. [ ] _oublieur_, pronounced _oublieu_, pastrycook's man, who came round in the evening selling small round cakes, _oublies_. [ ] plate. we on night fel to telling of notes of preachings, as of the englisman preaching on that, in came tobit, and much controverted whither they called it baty, light feit or watch;[ ] and of the minister that sayd, christ, honest man, liked not war, sayd to peter; and of on preaching on that, and abram gave up the ghost, sayd that it was wery debated if it was for want of breath or not, that he durst not determin it. of a preist preaching on the miracle wt whilk christ feed a multitude wt loaves, it was not so great a miracle, quoth he, as ye trow, for every on of the loaves was as meikle as this kirk: a baxter being at the pulpit fit[ ] started up and demanded wheir they got a oven to bake them in, and a pole to put them in and take them out. ye are to curious, quoth the preist, go and bake your oune bread and medle not wt christs, they had other ovens in the days then they have now and other poles to, and do ye not think but christ could have lent them a pole. also on who praying for the king our dread soveraine charles by the grace [of god] king of s[cots], etc., supream governour, instead of under the[ ] and they sone christ, sayd over the. also of another who praying for the illustrious duke of york, sayd the lusty duk. also whow a hostesse at camphire served mr. r. macquaire, being their to dine, wt a great deall of other company, he was desired to seik a blissing, he began so long winded grace that the meat was all spilt and cold ere he had done. the wife was wood[ ] angry. the nixt day comes, the meat was no sooner put to the fire but she comes to mr. r. and bids him say the grace. whats your haste margerit, is the meat ready yet? no, sir, but its layd to the fire, and ere ye have ended your grace, it wil be ready. we most not forget the swisse, who coming in a cabaret at poictiers demanding for win, drank for his oune hand pints, calling for a reckning they gave him up pints. he told they ware cheating him of a pint, for he know weill the measure of his womb, that it held no more but pints, wheirupon he would pay no more but for . also of the preist who bringing our saviour in the sacrament to a young galliard very sick, sayd, behold, sir, christ is come to visit you. the sick party replied, i sie very weil that christ is their by the carrier of him, for as he was knowen at his entry unto jerusalem by his asse that carried him, so do i know him at present. [ ] the meaning is whether tobit's dog was to be called a comman cur (baty), or a greyhound, or a watch-dog. the dog does not appear in the english version of the apocrypha, but in the vulgate.--tob. vi. i. profectus est autem tobias et canis sequutus est eum, et mansit ... juxta fluvium tiberis.--xi. . tunc praecucurrit canis ... et quasi nuncius adveniens, blandimento suae caudae gaudebat. [ ] foot. [ ] thee. [ ] mad. wonderful was the temperance and moderation of the ancient romans, yea greater then whats to be found amongs christians even now. they know[ ] no more but on diet a day, and that sober enough. at the first tyme that some greeks came to rome, and the romans saw them, according to the custome of their country, eat thrise a day, they condamned them for the greatest gluttons that could be. [ ] knew, as on p. . that story of the general (fabritius) roman is weill knowen: who at his ennemies brought a wast sum of mony to bribe his fidelity to the commonwealth, they fand him busy stooving a pot of herbes to his supper, wheiron he answered them, that a man as he, that could be content wt sick a disch, could not readily be temted wt all their gold. also of him who being choosen dictator they fetched him from the plough to his dignity, sick was their industry. for a long tyme amongs the romans old age was held such a ignominious thing that they could not get the scurviest coalsteeler in rome that would act the person of a old man, not so much as in comoedy. for years, and above, after the building of rome, it [divorce][ ] was not knowen for a man to put away his wife. the first was one spcius[ ] carvilius, who under the praetext of sterility divorced from his wife. [ ] interlined. [ ] spurius. we most buy that infamous book of miltones against the late king,[ ] wt claudius salmasius answer.[ ] surely it shal stand as long as the world stands for a everstanding memorandum of his impudence and ignorance: its nothing but a faggot of iniury (calomnies), theirs not on right principle either moral or politick to be found in it al; its penned by a pedant, a scoolmaster, on who deserved at the cheapest to be torn in peices by horses. neither in our judgement, tho he deserves not to be refuted, hath salmasius done so weill to the cause. [ ] _iconoclastes_, . [ ] _defensio regia_, by claude de saumaise, - . a parisian advocat cited some civil laws of whilk he was not sure: his antagonist retorting that their ware not sick a law nether in the c nor d,[ ] he replied, if it be not their yet it sould be their tho. [ ] code nor digest. about the ' of december at poictiers ware programmes affixed thorow the toune intimating that the physitians colledge would sit doune shortly, and that their doyen deacon, on renatus cothereau, a wery learned man in his lessons, _podagram hominum terrorem artuum que flagellum medicinali bettio acriter prosequeretur_; hence it hath[ ] this exclamation, _accurite[ ] itaque cives festinate arthici_. [ ] meaning, probably, 'then follows.' [ ] for _accurrite_. the same renatus had a harangue at the beginning wherin he descryved very pedantically the lamentable effects it produces on the body of man: amongs his salutations, i observed this, _themidis nostra argonauta sacratissime, fidelissime, æquissime_. they get no auditors to their lessons, whence its only but for faschions sake that they begin their colledge, of which they have nothing but the name. we have observed heir in france that on their shortest day, the of december, the sun sets not but a hower, almost, after its set to us, to wit at acloack, and that they have light a quarter almost after . also looking to their almanacks i fand that it rose on the shortest day at acloack and some minuts, when it rises not to us but after , so that they have in winter at juile[ ] a hower at morn, as much at even, of sun more then we have. their howers we gain of them in the summer, for at our longest day we have a hower sooner the morning the sun then they have; we have it at howers, they have it not til wt some minuts. at even also we have a hower of sun after that he get to them on our longest day, for by their almanacks he sets on that day in france, or at least at poictiers, at acloack wt some minuts, wt us not til after . [ ] yule. their is a very considerable difference betuixt the french summers and the scots: to wit, in their heat; but surely we could remark none in their winters. its true we had no considerable cold before juile, nöel (tho their fel a drift of snow about the end of octobre, french account), yet we fand it sickerly when it came, so that i do not remember that i felt it colder in scotland then it was for a space togither. its true it leasts not so long heir as it does wt us. juile is a great feste in france. the papists are very devote on it, yea so religious that they go all to church at midnight to hear masse, for a preist hath that day power to say thry masses consecutife, when at another tyme he can say no more but on at a tyine. i went after dinner and hard the cordelier at st. pierre. the rest of our scotsmen ware so curious as to go hear midnight masses. as for me i had no skil of it it was so cold; and surely i did not repent it considering the affront that they got, that they ware forced to render their swords at the command of the intendant who the night before was come to toune from the grand jour[ ] that was then in auuergne. this he caused do following the mode of paris, wheir no man is suffered to carry a sword that night, both by reason of many quarrels begun that night, as also of sewerals that take occasion to decide former quarrels on that night. surely they had no satisfaction in that mass. [ ] high commission sent down by the king to the provinces as a final court of appeal. during the tyme i was heir i fel in discourse wt the jesuites, going once to sy our countryman pere broune, who was wery kind to us al, and came and saw me after. about the tyme was that poor smith, of whom we made mention before, execute, who was the first we ever did sie in france. tho he had receaved his sentence at poictiers, yet that could serve til he was taken to paris (for the capital tounes of france are not royal boroughs as our are, having the power of heading and hanging wtin themselfes), wheir he was condemned to be broken on the wheel, to be _rouée_, tho according to the custome of france he know not that he was sentenced til about howers before he was broken, for by concealing it up til then they keip them from taking wiolent courses to prevent their death which they would take if they know of it, as killing themselfes, or means to ecscape, tho otherwise it be very il for their souls, they having so short tyme to prepare themselfes for death. they made this poor fellow beleive that he was only condemned to the galleys, at which he laught, telling that it appeared they knew not he was a smith, so that he could easily file his chaines and run away. about acloak on that day he was to be execeut he was conveyed to the palais to hear his sentence, wheir it was read to him on his knees, the hangman _bourreau_ at his back wt a tow in his hand. the sentence being read he puts the tow about his neck wt thir words, _le roy wous salou, mon amy_, to show him that its the king that causes him dy. his sentence is read to him again at the foot of the palais, as give ye sould say at the coming of the parlement close, or ladies steeps;[ ] and then a third tyme on the schaffold. [ ] steps close to st. giles's church. see wilson, _memorials of edinburgh_, , vol. i. p. . their ware mo then , spectators at the marcher vieux. in the midle of it their was a little _eschaustaut_[ ] erected, on which ware nailed iests after the forme of a st. androws crosse, upon whilk the poor fellow was bond on his back, wt his armes and his thigs and legs on the nooks of the crosse, having bein strip naked to his shirt. after he had prayed a little and the carmes[ ] that assisted him, the _bourreau_ made himselfe ready to execute the sentence, which was that he sould get strooks quick and the rest after he was stranguled. [ ] _echafaud,_ scaffold. [ ] carmelites. at paris in breaking great robbers, for the better exemple they do not strangle them at all; but after they have broken all their bones to peices almost, they leave them to dy on the rack. to return to our poor miserable, the _bourreau_ wt a great baton of iron began at the armes and brook them wt tuo strooks, then his knees, then a strook on every thigh, then on the belly, and as many on the stomack; and after all thir, yea after the strook, he was not fully dead. the tow[ ] brak twice that was ordained to strangle him. in sying what this cattif suffered made us conclud that it was a cruel death to be broken in that sort. [ ] rope. we cannot forget how coldrif the french women seimed to be in the winter. the marchands wifes and thorow all the shops every one have their lame choffer[ ] ful of rid charcoal wt their hands in among the mids of it almost. the beggar wifes going up and doune the streits had them also. * * * * * [ ] [ ] earthenware chafing dish. [ ] twenty-two lines erased in ms. we cannot forget the shift that the poor folk which have no bowets[ ] (which generally are not so good as ours) take when they go out under night, as i have sein them when i have bein going or coming from mr. alex'rs, and it would have bein so dark that i could not sy my finger before me. it is they take a peice wood thats brunt only at one end, and goes thorow the toune waging[ ] it from one syde to the other, it casting a litle light before him. it would almost fly[ ] a man in a dark night to sie it at a distance, and always approaching him, til he keen what it is. [ ] lanterns. [ ] wagging. [ ] frighten. we cannot but insert a not of a northren ministers preaching. his text was about piters threefold denial of christ, and that wt oaths. beloved, its wery much controverted amongs the learned what ware the oaths that piter swoore, yet the most part condeschends that they ware thir: the , god confound me, if i keen such a man; the , devil ding me in testons;[ ] the third, by gods wounds, i do not keen him. mungo murray of the life gard was in the kirk, and resolving to make sport came to the minister after the kirk was scailed, telling him that he agreed wt him about the [first] oaths that they ware so, but he could not be of his mind about the thrid, by gods wounds, for christ had not yet received any wounds, so that he could not swear by gods wounds. the minister began, sir, i am very glad that ye take the freedom to propon your doubts, for its a signe of attention. as to your difficulty, ye would know that a man when he is sorest prest he wil swear sorest, so that peter keipt the greatest oath last; also ye would know that it was a profetical oath, as give he sould have sayd, by the wounds that christ is to receave. [ ] teston or testoon, a small silver coin. the last in scotland were coined by mary in , value s. scots. in the hylands their was a minister that was to give the communion to his parish wheir it had not bein given or years before. for that effect they sent to monross[ ] to buy the win, which being come, he and his elders bit to tast it for fear of poisoning their honest parishioners. er ever they wist of themselfes they fand it so good that they licked it out every drap, and was forced to give the communion in good rid aile. [ ] montrose. we most not forget the story of the english capitaine, who thinking to flie his hostesse, he was so frighted himselfe, his man wtout his direction having bought a great oxes hyde and covered himselfe wt it, that looping over the stair for hast he brake on of his legs. wheir layes in a chamber togither, their are many wayes to flie on another. we might take a litle cord or a strong threed when the other is sleiping, bind it to his covering or bed cloaths, then going to our oun bed wt a end of the string in our hand, making ourselfes to be sleiping, draw the string to us, and the cloaths wil follow, and he wil be wery ready to think that its a spirit. also ty a string to , chair feet, and so draw them up and doune the house. he that knows nothing of it wil impute it to a ghest. any tymes i was angry at the frenchmen, if so be i was familiar wt them, i fell to and abuse them in scots, as logerhead, ye are a sheip, etc. their was no way i could anger them worse then to speak in scots to them. the consuetuds and rights of nations about hunting and halking throughout the most part of the christian world are wondrously degenerated from the right of nature and nations and the civil law following the footsteps of both. according to thir, all men have æqualy the liberty of chassing of wild beasts, no sort of folk being excepted, and that not only in their oune land but also in any others, since vild beasts, wheir ever they be they are always wild beasts, apparteening to none; for if that the wild beast is on my ground sould make that it be estimd myne, then leiving my ground it leives of to be myn, and by entring unto my neibhours it begins to be his, and so it might change a masters in one day, which is absurd. we might as weill say that the piot that bigs[ ] on my try is myne. [ ] magpie that builds. this liberty is exceedingly impared by the consuetudes at present, so that nether can we hunt all beasts, the king having excepted dears, harts, etc., so that its not lawful for any to chasse or kil under the pein of a fine francks, except only the king and some few others, great peirs, who have their permission from the king. nether is it permitted for all indifferently to hunt, clergymen are decharged it, peasants also. its confessed also by al that kings may discharge their subjects the pastime and pleasure of hunting, especially thess who holds their lands in fief immediatly of the king, which he called fiefs royalles, whom he may hinder to hunt in their oune ground, ower which they have ful power otherwise to sel it, woodset it, gift it, or do wt it what i please: the same power have the inferior seigneurs. lords in giving lands to vassals, men who have bein serviceable to them in many occasions whom they cannot recompence in mony, they give them a tennement of land, they usualy retain the right of hunting in these lands only to themselfes. halking in france is a excercise not permitted to any under a gentleman. we have sein its not permitted to al to hunt; also its not permitted to hunt al beasts; also its not permited now to hunt indifferentley in al places. the kings keips their parks filled wt wild beasts, wheir its not leasum for any to hunt but themselfes, as fontainbleau and st. james park. the nobility have also the same right of keiping sick parks; as witnese upon the rode bothe of england and france we meit wt noblemens incloseurs wheir would [be] or dears. yea, in france its not lawful to shoot wt the gun in another mans ground; so that if a man take another guning in his ground, he usualy takes the gun from him and breaks over his shoulders. if he can hinder a man to shoot in his ground, much more may be hinder him to hunt, since the on is more praeiudicial to him then the others; for its done wt greater noice, also does more damnage to the cornes or wines. what might be the reasons that have moved the princes to hem in so narrow bounds the rights of hunting by the right of nature and civil law so patant to all are to be found in vesembec,[ ] paratitlo _de acquir[endo rerum dominio._ ], for fear that the whole race of beasts sould soon or sin[ ] be totally exstirpated wt the multitude of hunters, if al ware permitted to hunt. do, least to many (as we sie at present) being to much taken wt the plaisir of the sport sould forget their businesses of consequence. as to that obiection, that hunting being from the right of natur, which is unchangable, it cannot be prohibited by any civil law, i say hunting is not from the rights of nature commanding but permitting. [ ] matthew wesenbec, dutch jurist, - . [ ] sooner or later. its a custome in france that when a young woman unmarried is condemned to dy for some offence (unlesse the fault be al the grivevuser) that if the hangman be unmarried he may sick hir in marriage and get hir hir life that way: that their hes bein seweral that have refused it and choosen rather to die. this hes great resemblance wt that custome in england that a man being sentenced to dy, if a common whore demand him in marriage she wil get him; it being a charitable work to recal a whore from hir loose and prophan life by making hir marry. yet surely both the on custome and the other is but a corruptel and a mocking at justice. the accent the french gives the latin is so different from ours that sometymes we would not have understood some of them (for the most part i understood them weil enought), nor some of them us. ether we or they most be right, but i dout not to affirm but that the accent they give it, straining it to the pronuntiation of their oune language, is not natural, but a vicious accent, and that we have the natural. my reason is, because if their be any wayes to know what was the accent the ancient romans prononced the latin wt it is the accent that the italians gives it and their oune language, which is a degenerated latin, who be the romans posterity; but so be they give it the same very accent that we do: the french ware never able to answer me this. as to ther pronuntiation of the greek i could never keip myselfe from laughting when they had occasion to read greek or any greek sentence, even their doctors of law: vitnesse le berche at orleans whom i attended moneths, that greek that occurres in the t. book of the instituts,[ ] [greek: ton nomon hoi], he pronunced it [greek: hi; men agraphoi], prononced it [greek: hagraphi; hoi, i; men engraphoi, phi]: as we observed also in mr. filleau at poictiers, [greek: dunamenon] esti, he pronunced the last syllabes damned long. [car [greek: son kaphson] urens.][ ] we could give infinite mo instances wheir they prononce it undoubtedly wrong. [ ] justinian, _inst_. i. : [greek: ton nhomon ohi men heggraphoi, ohi oe hagraphoi]. [ ] interlined. the meaning apparently is that the french pronounced [greek: kahnson], a new testament and septuagint word for burning heat, as if it were written [greek: kaphson]. they do not name their points in writing as we do, that which we cal comma (following the greek) they cal it alwayes _virgula_; our colon, _duo puncta_; semicolon, _punctum cum virgula_. when we say _nova linea_ they say _a capite_, wt sundry others like that. a woman witness is receaved in france in any causes whither civil or criminal: only wt this difference that for one man their most be women, id est, wheir men being ocular witnesses of a murder wil condemne a man, their most be women, under which their witnes is not admitted. they have their penny bridiles[ ] in france as weil as we in scotland. when a servant women marries, her master brings wt him folk to their wedding as he can get, who casts in into the plat according to their pleasure. they wil be ready enough to promise on back the halfe of his again wt the dessein so to engage the rest to give more. [ ] see _scotland and the protectorate_, c.h. firth (s.h.s.), vol. xxxi. p. , note. about the begining of february came comoedians to poictiers. i went and saw them severall tymes. the first was called odip, who resolved the sphinx his enigma: was so unfortunat to slay his father by ignorance, marry his mother, and to conclud al to put out his oune eyes: the fellow acted his griefe exceeding lifelylie. the farce was _le marriage du rien_. a fool fellow in a scoolmasters habit wt a ugly nose, which i was angry at, a scoop hat, comes on the stage wt his daughter, who proposes to him that she apprehended furiusly that she might dy a maid and never tast of the pleasure in marriage. in comes a poet to suit hir, fals out in the commendation of poesy; hir father shoots him away, saying that al the poets ware fools. in comes a painter who praising his art, whom also he puts away, saying that the painter ware poor drunken fellows. after came a musician, who fell to sing: he called him a cheater. then came in a astronomer, whom he put away because he could not tel whither he would give him his daughter or not. then came in a captain, a floop[ ] like fellow wt his sword about him, making a wery fool reverence, who rodomontades a space, telling that he had made the devils tremble; that he was that achilles in homer, that eneas in virgil, that aiax in ovid, and that al that historians wrot of brave men was only of him. at last came in one that called himself nothing, that would assume no title to himselfe. not finding anything to obiect against him he accepted of him. [ ] floop or flup, awkward. in the comoedy when the king stood very scrupulously on his word, his sister fel to to convince him that it was a shame to a king to be slave of his word, which was the great maxim of cardinal mazarini, as i was informed. having sent to consult the oracle of delphos, and it not deigning to answer him, in a rage he cried furth, _flectere si superos nequeo_, etc. when a person dies in france they are very careful to mark in what posture after their death their feet are in; for if they be unæqually laying, on of them drawen up, they strongly beleive that by that the dead calls his or hir neirest friend let it be wife, father, or brother, on of which wil dy shortly after. its the faschion of the grandees when they die that they are exposed for days after in a chamber hung all in doole[ ] in their bed, also of dool, in the bests cloaths which they wor when they ware in life, so that al may come to sy them in that space. their is holy water in the roome. the dutchesse of montamor, whiles i was at poictiers, was thus exposed. [ ] mourning. the bairnes of france have the excercise of the tap, the pery,[ ] the cleking,[ ] and (instead of our gouf, which they know not) they have shinyes. [ ] peg top. [ ] clekin or clackan, a small wooden bat in shape like a racquet. in france they have apples without any seeds in them; also great pavies[ ] (which is the best sort of peach) wtout any stone, which they informed me the curious does thus: they graft a peach in a old stock, the bow the end of the imp[ ] and causes it to enter in a other rift made in the stock, leaves it like a halfe moon or bow til they think it hes taken, and then cut it in . that halfe imp that was grafted first wt the head upmost bears peaches according course of nature wt stones in them, the other, which growes as give ye would say backwardlies bears wtout any stones. this has bein practicat. they'le impe[ ] any tyme of the year in france. [ ] sorte de pêche, dont la chair est ferme, et qui ne quitte pas le noyau.--littré, _dict_. [ ] shoot. [ ] graft. about the mids of february was receaved a new fencing master, whom we saw give his trials: the mair made a assaut against him first, then the fencing masters, then some schollers. a litle after was the queen mothers panegyrick or _funebre oraison_ made at st. pierre in a prodigious confluence of peeple of al ranks; the intendant, the president and the conseillers, the mair, the eschiwines,[ ] and the maison de ville assisting; also many of the religious orders. the cordelier who preached the advent before and the caresme after made the harangue. he deduced hir glory and commendation, lo, from that she was anne of austria, which is the province in which standes vienne, the metropolis of germany; that she was philip the d of spaines daughter; next that she was queen or wife to lowis the just, of that name in france; dly, that she was mother to lewis the 't, so hopeful a prince, after she had bein years barren. whence he took occasion to show that tho virginity and coelebat was wery commendable, yet that it was no wayes so in the succession to crounes. he had also heir a senselese gasconad which nobody approved of, that st. gregoire sould say that as far as kings are exalted above other men, that in so far the kings of france ware above al other kings. in the th place he fand a large elogium to hir in that she falling widdow she becam regent of hir sone and the realme during his minority. hir last and principal commendation was that she was a princesse most devot and religious. [ ] _echevins_, municipal magistrates. we was at comoedy, the farce of which was called _le cocus imaginaire_. their ware some honest women craking[ ] togither on a tyme, they came among other things to speak of eve and hir transgression: on of them cries furth very gravely, oh, that i was not their, i wish i had given hir a penie loaf on the condition she had not eaten the apples. [ ] chatting. wery rich stuff has bein heard at the examens in scotland, some ignorant folks wt their answers being wery pleasant and merry. mr. j. smith, minister of the colledge kirk, examining a bonnet maker, of whilk theirs a great number in his parish, he speared at him what was effectual calling; the fellow, clawing his head, replied, the feeklesest[ ] calling i keen, sir, is my oune. kid, minister of the abby kirk, spearing at one of my lord catheneses servant women what was the lords supper. she, thinking that he had speared what was for my lords supper, answered, sir, or i came out i set on the pot and my ledy hes sent pies to the owen. mr. robert blair, examining a wery ignorant body, speared at hir, wheirof was ye made, magie; the folk neir hand rounded and harked in to hir, of the rib of man. of the rib of man, sir. weil said, magy, quoth mr. rob, i'm very blaith to sie that ye answer better then ye did the last examen. who made man then? the peaple round about whispered to hir, god. god, sir. whirof made he him then, magy? the peaple cried to hir then, of dust and clay: which she mistaking or not hearing weil, insteed of saying of dust and clay, she said, of curds and whey, sir. i leive to ghesse whither them that ware their laught or not. mr. robert himselfe, tho a very grave man, could not refrain from smiling. [ ] feckless, feeble. in baptizing about the bairnes names ther hes bein mistakes both on the ministers hand and the holder ups. mr. james vood was baptizing a man at st. androws, and instead that he sould have baptized james, he called it john. the father, a litle bumbaized at this, after the barne is baptized and that he hes given it back to the midwife, he stands up and looks the minister as griveously in the face and sayes, sir, what sal i do wt johns, we have a john at home else, sir? whow would ye called then, robin? quo' the minister. james, sir. james be the name of it then. mr. forbes told me that in the hylands once a mans wife was lighter of a lasse, the goodman was wery sick so that he could not go to church to present his oune barne, wheiron he desires one of his freinds or gossips to go and hold it up for him. he bit to have a scriptural name for his daughter, at last he agreed upon rebecca. the man thought he sould remember weil enough of it. just as he is holding up the child he forgets the name. the minister speares, whow call ye it. sir, they call it, they cal it, they call it, shame fall it, ay hir oune selfe hes forgotten it. yet i remember that its a name very lik tobacco. many did laught wery heartylie at this, only some present remembered of the name, that it was rebecca. having stayed at poictiers til the of april french accompte: some dayes before that i was beginning to make many acquantances at poictiers, to go in and drink wt them, as wt de gruché, ingrande la figonne, both advocats sones, and of the religion, mr. de gay, borseau, cotibby, etc. * * * * * [ ] [ ] twenty-seven lines erased in ms. i was beginning to fall wery idle, so that if i had stayed longer in poictiers, i had alwayes engaged myselfe in more company, and so done the lesse good, whence i have a sort of satisfaction that i came away. on the day of my departing i took my leive of mr. boutiet, mlle. alex'r, and mlle. strachan, mlle. chabate and hir mother wt some others, then went to the chappeau d'or, wheir we dined, mr. alex'r, the doctor, sandy, mr. de la porte, mr. montozon (for gorein was not in toune), and i. after having taken my leive of madame daillé (himselfe being at partenay), i took horse before the buith door and came to the daufin in the fauxbourgs, wheir i leapt of. the most part of the hugonots going to their temple, their i took my leive of sandy'es wife, madame peager, and divers others. i took up to drink wt me mr. de la porte, de gruché, de gey, de gaule, barantons brother, etc. * * * * * [ ] [ ] twenty-two lines erased in ms. on my vakening on the morning, i fand my head sore with the win i had drunk. for as sick as i was, on i got the morning wt the rest, and came and dined at portpile,[ ] a litle toune standing leagues (for the leagues are long their in comparison of them about paris) from chattellerauld, on the creuse, which runes also by blanc in berry. [ ] le port de pilles, blaeuw's atlas. having ioined their wt the messenger of bordeau, who had about gascons wt him, and the messenger of angoulesme, who had above , we was a body above . we took al horseback, and having rode the river, tho wery deip, because the bridge was broken, i fell in wt the gascons, and was the rarest stuffe wt them that could be.[ ].... also a gentleman of sainctonge ioined wt us, who was coming to paris. [ ] eight lines erased in ms. we came this night to faux, a litle village standing upon the lindre, about leagues from portpile, wher i played one of the gascons a pret[ ] in the boat; wheir also i saw a reservoire of fisches. heir i was wery sick, so that i suped none, as i had not dined, my poictiers rant incapacitating me. yea, i was distempered al the way after, so that i cost not wery dear to my messenger for my diet. [ ] trick. nixt morning be howers, having taken horse and riden the water, i came to amboise. my heart began to lift in me for joy when i came to places i had sein before, for i being wery sick, i fancied now i was almost at the end of my journy. amboise is leagues from faux. we dined at the cheval rouge, in the fauxbourgs, this syde of the loire. i went and saw the chasteau, having taken a french gentleman of quercy (of which cahors is the capital toune, and dordogne the cheife river), and another of thosose[ ] wt me, whose brother, a boy not above years, had already been at the wars against the mores of barbary, and had bein taken prisoner, and was ransoned by his father for crounes, and was coming in to paris to get some employment in the army: such stirring spirits are the french. the castle i fand werie strong. i saw their arsenal, wheirs layes the canon of the fort, the greatest of them carrieng only pound ball. their best peices ware transported during the seige of the rochel; they have never bein brought back yet. theirs in the entry king dagobert and his queens statues, wt great sheep done _à l'antique_. [ ] probably for tholose, toulouse. the most considerable thing we saw was the harts hornes, hung up in the corner of a chapelle, of a monstrous bignesse, if they be natural. it was taken some many years ago in a forest of lorraine towards allemagne, wt a collet,[ ] about whilk the flesch was so growen that it covered it, bearing that it belonged to cæsar. it bit to be wery old when it was taken. also we saw some rib bons of it monstrouslie great. also, i saw the chamber wheir mr. fouquet[ ] was detained prisoner when the king brought him from nantes. [ ] collar. [ ] nicolas fouquet, - , finance minister of louis xiv., fell out of favour, and was arrested at nantes, . from amboise we came to blois short leagues, wheir i went straight to the castle (my remarks of which are elsewheir) to sie these verses of faustus above the gate of the castle, which are as followeth: hic ubi natus erat dextro ludovicus olympo sumpsit honorata regiâ[ ] sceptra manu, foelix quæ tanti fulsit lux nuntia regis, gallia non alio principe digna fuit. . [ ] regiâ for regia. at best the line does not scan. next morning we came to st. laurens, a pretty litle toune, wheir we dined. in the afternoone we passed by clery, a litle village leagues from orleans, wheir i subscrived my name in the great book of all passengers (wheir i did read several scots names, as liddell, douglas, etc.). i payed a collation, which cost me a croune. at orleans we quartered at the charrue, in the fauxbourgs towards paris. as soon as i was arrived i went to j. ogilvies, wheir i fand madame, mademoiselle hir daughter, hir sones, mr. le baron, and another allemand. they ware wery kind to me, caused me stay and sup wt them. they began and told me the depart of my lord ogilwie from their house very discontent, denieng j. ogilvie, who was then in germany for mr. le barons busines, to have bein given him as his governor by my l[ord] his father. they would wery fain had me subscribing a paper (for they brought a notaire wtout my knowledg), wherin i sould have attested that i had heard from him that he was his gouwerneur, which they could not all obtain of me,... they pressed me so sore, making remonstrances, that i would obligd them infinitly by subscryving it, also that i could incurre no dommage by it, that i was put to feigne that i had made a solemme oath not to subscryve anything while i was in france, which stoopt their mouths. i went wt mr le baron d'angleberne and christophle, le barons valet, after supper to the lodging, whither my lord was retired, which was at the back of the church ste. croix, wheir i plead[ ] the dissembler. just at the port of the toune i meet james hunter, who had bein at my quarters to sie me. [ ] played. being on horseback, tomorrow being a sundy, ere howers of the morning we dined at thoury, a little toune leagues from orleans; came at night wt foul weather to estampes, a ruinous toune, their no being so meikle as a whole house standing in al the fauxbourgs, and that since the late troubles raised by mr le prince,[ ] who defended the toune against the king. their is one long street in the toune. we lay at the trois rois. we went to the cordeliers convent to sie that barbet[ ] rought[ ] water dog that taks the escrevisses,[ ] but we could not sie it. [ ] in the prince of condé's troops held etampes against turenne, louis xiv.'s general. [ ] a kind of dog with long curly hair. [ ] rought, rough: as he spells laugh, laught. [ ] _ecrévisses_, crayfish. nixt day, having past by a hermitage, wheir hermites dwells, and seiks almes of al that passes, we came and dined at linas, besydes montlery, leagues from estampes,... at oclock the afternoon we entred paris by the fauxbourgs st. jacques, wheir we passed by the val de grace, builded by queen mother of france, lately dead, wheir hir heart is keeped; by the colledge of clermont and the sorbonne. we quit our horses in the rue st jacques, neir the grande cerf. we was not weill of our horses when we was oppressed wt a generation of hostlers, taverners, and others that lodges folk, some intreating us to come wt him, some wt him, all promising us good entertainement and accommodation. i went wt on mr. houlle, a barber, who had bein in england, because he was neir hand, and would stay but that night. theyr was a french gentleman of lions and a spaniard, one of the queens attendants: this was my company. that night they told me of the death of madame de touraine, and of the execution of mr. del camp, dayes before my coming, a maister of a academy, and that for false mony, for whilk he had bein pardoned once before. nixt day, whilk was the aprill , french accompt, i came to mr kinlochs, wheir i am informed that the most part of our countrymen are already goon for england, and that thirlestan, gorenberry, and sandilands (whom i saw and gave on his desire my new testament) was to go the day after. their i was first acquaint wt mr. forbes[ ] (cullodin) and archibald hay (bara's brother). i changed my quarters that same day and came to kinlochs. [ ] probably duncan forbes, - , m.p. for nairn, succeeded his father about , father of president forbes. within a day or i was acquaint wt our scots captains, captain caddel, c. rutherfurd wt a tree leg--his oune was dong from him at the seige of graveling--and captain scot, also on c. white. i saw the fruit they call grenades[ ] at paris. to look to before its cut most like a citron: being cut at the top its all ful of litle grains as like rezer[ ] berries in the coulor and bigness, yea almost in the tast, as can be. it was a pretty sight to sy how prettily the grains ware ranked wtin the skin. [ ] pomegranates. [ ] rezer, rizzer, red currant. mr. kinloch on night coming from a burial of a hugonet medecin at charenton saw a blind man of the kings vingt (as they call them, tho they be score) play at the maille[ ] to admiration, wheir upon mr. grahme took occasion to tel severall very wonderful things he know of blind men: amongs others, of one that could play weill to the gooffe, of another that, take doune watches, mix their works as much as ye like in a hat or any other thing, and gave them him, he saw put them up as iust every one wt their oune vorks as any cknock maker shal do. its common that they know any sort of silver by a more parfait touche then ordinar, which god is pleased to impart unto them in recompence of the want of sight. [ ] see p. , note . in the renouned toune of forfar, one who had many kyn having caused milk them at his door, left the tub wheirin he had milked them by neglect at his door. by comes a neigbhours cow, whow being damned thirsty, comes the by way to the tub and takes a wery hearty draught. in the mean tyme comes he that ought the milk, and seing the damage that was done him, to the toune counsel he goes and makes a very greevous complaint, demandes that he that owes the cow that had drunk his milk pay him it. the counsel was exceedingly troubled wt this demand, never in their remembrance having had the like case throrough their fingers. after much debat on both sydes, a sutor[ ] stands up and showes that he had light upon a medium to take up the difference. he askes whither it was a standing drink or not that the cow took when she drank out the milk. they replying whow could she take it but standing, he replyed that it was a most sure thing in that country, knowen to them all, that none ever payed for a standing drink. they following this decision assolzied and cleared cow wt its owner from paying ought, as having taken only a standing drink. [ ] cobbler. its marked of the aurelians[ ] that they cannot drink standing, but that tho they have never so litle to drink, they most sit doune. henry the 't, as he was a very mery man, being at orleans at a tyme, and my lord maire and his eschevins being come to sie him, he would try the truth of this. he first causes remove all the chaires and stools out of the roome, so that nothing was left that a man could sit doune on: then caused bring in win, and drinks to my l. mairs good health, then ordains him to pledge him, who begins to look about him for a seat; no, nay seat for him, wheir on he began to suspect the king had done it a purpose, he resolves to give his majesty sport. he causes on of his aldermen to sit doune on his knees and his hand, so that he may drink of his drink to the king on his back sitting, which he did, and at which the king did laught no litle. [ ] people of orleans. in the tyme of our late stirs one of the name of gordon, called black adam,[ ] had broken in on a willage in some part of the north, and had made such a pillage that he had left nothing that was in the least worth the carrieng away. one of the women of the willage bewailling her lose wt her neighbours, demanded whow they called that wicked man that that had them the scaith. they call him adam, quoth another, i know no more. adam, quoth she. adam began the world and i think he sal end it to. [ ] edom o' gordon. the irishes hes a damned respect for st. phatrick, of whom they say, that if christ had no bein christ, st. phatrick would have bein christ, as he ware the most worthy person after christ. in the first part of the romance termed _almahide_ or _l'esclave reyne_, penned by the renouned scudery,[ ] dedicated to mademoiselle, the kings sister, are brought in the toun of grenade in a uproar by reason of mighty factions, the abencerrages, of whilk abindarrays is the head; and the zegris, whose head is mohavide, betuixt whilk the whole toune is divided. it comes to a cruel fight in the spatious place of viwaramble, notwtstanding what the mufti wt the alcoran in his hand could say to dissuade them, who is descryved wt all the rest of the religious orders. [ ] george de scudéri, - . amongs the abencerrages was eminently conspicous the _bell esclave_ on the head of moray zel, the father of sultane queenes party, for fear of whom the queen suffers no small greife. at last by the mediation of the king they are brought to peace; only mohavide subornes a alfaguy to accuse criminelly the sclave for being found wt armes in his handes against the law of the alcoran: whos harangue is answered and refuted by moray zell. the king, after deip deliberation and a magnanimous harangue of the sclave, himselfe assolyies him. this reased a curiosity in roderick de navarre, a great spaniard, prisoner of the mores at that tyme, having sein the valeur of the sclave, to know what he might be: whence one ferdnand, a old slave of the sultane queen, begines him his story thus: in the beginning of the reigne of muleyhassel, whose sone reigneth at present, the greatest courtier at the court of grenade was morayzell; and tho their ware many brave dames, yet none could captivate his heart, so that long tyme he was called le bel insensible. on a tyme on of his friends called almadam came and invited him to a feigned fight of canes he was to make in the sight of his m'ris semahis, to which at lenth yeelding, he beates him, and wines the heart of semahis, and begines to find his oune touched. finaly, after a combat for hir betuixt him and almadan, in which he overthrowes almadan, they are solennly married. about the course of a year after the beautiful semahis gave a matchlesse daughter, which they called almahide, and who at present is _sultane reyne_, to the valliant morayzel, who caused a learned arabian cast hir horoscope, who dressing hir figure, gave the strange answer, that the stars told him that she sould be fort sage et fort amoureuse, quelle sera en mesme temps femme et fille, vierge et mariée, esclave et reyne, femme d'un esclave et d'un roy, heureuse et malheureuse, mahometane et chrestienne, innocente et coupable, et enfin plus estrange exposée an danger d'estre brulée toute vive. de plus quelle mourra plus contente qu'elle n'aura vescu, et que parmy les debris d'un throne et le bouleversement d'un royaume, son amour et son innocence la consoleront elle mesme de la perte d'une courrone que la fortune lui osterea. this gave no smal astonishment to moray zel, who to evite them the better resolves to send his daughter far from grenade, to algiers in africk, that if it comes to pass it may light far from grenade. this he puts in execution, shipping in the infant at tarriffe under the tuition of seweral slaves, but especialy of fernand de solis. them we leive on the sea a while to tell another rancontre. about years before the birth of almahide, inez d'arragon bore a son to hir lord dom pedro de leon, due de medine sidonia, in andalousy, in spaine. the childs horoscope the father caused to be casten by one of toledo, who desired him to have a watchful eye of his sone til he pass , otherwise he may be made slave. to obey this the better dom pedro thought it not amisse to remove his sone from the court and city and send him to a plaisant country house called the fountaines, wheir we leive the young ponce de leon, and returnes to our almahide on the sea. the ship is sett upon by pirats corsaires, and they are taken al sclaves and carried to the ile of dorigni. heir they stayed a long tyme, and almahide growes to some years, and hir beauty growes wondrously wt her, which the pirats seing they resolve to carry hir to constantinople to sell hir to them that plenishes the turks seraglio. whiles they are on their way they are casten away, none saved but fernand and the litle almahide, tho fernand know not of it; for some shephards finding hir in a sound[ ] on the shore, they carried hir to the fountaines iust at hand (for their lot was such to be casten away their), and sold hir to the duc and dutchesse. dom fernand, finding that he was in his oune country, and knowing that the ducks house, who was his old freind, was neir he went to visit him, wheir to his amazement he fand the litle almahide, who came runing to him and velcomed him. heir the duc choses fernand to be his sones gouueneur, and appointes the beautiful almahide to stay their to bear his sone company. [ ] swoon. all this while morayzel could gett no newes of his daughter, which was no small greife to him. in the interim the fierce and fair semahis, his lady, wt hir charmes conqueres so many souls to hir beck that being ambitious she brought grenade in hazard. after this is intervoven a lang but pretty description of the house called fontaines. love begines incessantly to grow betuixt them. the only obstacle was she was still mahometane, which the sclaves had infused in hir. yet on a tyme young ponce mocking merrily at the fopperies of the alcoran she tournes christian. on this their love takes new strenthe: on a tyme he impartes it to hir; from whom at lenth he getts a promise of hir fidelity to him. after she turned christian she got the name of aminte. theirs sowen in a pretty dispute that happened, what might be the prettiest of flowers, and its generally by aminte also concluded on the tulip. their fame cannot be long confined at the fontaines, but its at the court of sewill already; which drawes many galland persons to come sy them, and amongs others dom alvare, who proved to ponce de leon a rivall, who expressing his affection to the fair grenadine both in verses and lettres it occasioned bad intelligence betuixt him and ponce, so that it comes to a combat, wheirin ponce carries away the victory. and it was like to have occasioned more mischeif had not fernand, ponce his governor, writen to the duc to fetche away aminte, who was the occasion of their striv, which the duc obeyes, sending a coach for hir to carry hir to sewil, who having renewed hir promise of fidelity to ponce leives him their a very sorry man. thus ends the first book. * * * * * [ ] [ ] half a page blank. there follows here an essay in french or notes of a lecture on the study of law, a juvenile performance. though inserted in the ms. book it is not part of the journal. it has been printed here as it stands. il y a deuz methodes pour estudier le droit, ou par la voye du text ou par celle des quæstions: certes le chemin du text est le plus asserre, plus solide et moins trompeur. pour le text comme guides wous vous attacherez a vinnèus, ou vous trouwerez cela qu'il est de la scholastick: a sucidiwen non paralellé quant est de la practique. a la glosse ou accurse si vous souhaitez les cas et les especes des loix: si vous ne tirez pas toute la satisfaction possible quant est de la text de ceux-cy, feuilletez bartol, cuiace et azon dans son summa, de qui autrefois l'on disoit, qui non habet azonem vendat pallium. si vous voudrez chicaner ou jusque an moindres points epluscher une loix dans la text vous trouverez vostre conte dans antonius faber. ayant leu les institutes avec ses aydes, vous vous tournerez aux paratitlairs. sur la quelle matiere personne n'entrera en parrallelle avec peresius in c. vesenbecius ne laisse pas faire assez bicn la dessus: vous pourrez aussi regardez corvinus. calvin dans ses paratitles n'a fait qu'une honteuse recueill de cela que les autres avoient dit la dessus devant lui, comme de cuiace, vesenbec, etc. entre les docteur francois les parratitles de maranus, antecesseur de tholose, sont en haute estime, mais puisque nos sentiments nous sont libres, nous ne voyons pas trop de raison. vous n'oublierez pas les paratitles de tulden wrayment grand homme: comme ceux de zoesig et sur les digests, et sur le droit canon. cette methode apprendre le droit par le text a receu ses meilleurs et plus brillantes lumiers des francois. seulement vous prendrez icy garde d'une faute de qui je les accus presque tous, pourtant fort insupportable et bien digne de la fowette: c'est que ils advancent des choses en controverse comme s'ils estoient hors du controverses et autant de principes, et par ainsi pitieusement abusent la ieunesse. afin de vous detromper vous passerez dans l'autre chemin, qui est celui des quæstions, lequel si vous pourrez marier heureusement a l'autre, de cette union vous peut redonder dans son temps une entiere connoissance du droit. dans ce chemin-cy wous ne manquez pas des hommes sçavants pour vos præcepteurs. ici s'offrent fachinæi controversiæ, vasquii controversiæ illustres: item son traité de successionibus tam ex testamento quam ab intestato. item pacij centuriæ: qui outre son commentaire ad institutiones a aussi escrit ad librum tum c. lequel oeuure de pacius emporte sur tous ses autres. vous y trowwerez merenda. vous chercherez pour bronchorstii quæstiones, qui a aussi escrit ad t.d. de regulis juris. vous ne manquerez pas d'acheter les disputationes selecta treutheri ou ses theses, avec hunnius (qui a aussi ecrit libres variarum resolutionum) in tomes le dessus, et bachovius cet grand esprit, de qui vineus derobe le meilleur de cela qu'il a. mais sur toute n'oubliez pas le tomes de harpreclitus sur les livres des institutes, qui vous donnera une lumiere merveilleuse dans toutes les quæstions; et ou il defail le lui-mesme, il vous n'envoye aux meilleurs autheurs qui a escrit sur cette matiere. a la mesme fin vous demanderez pour mastertius, ou particulierement pour son sedes illustrium materiarum juvis civilis, ou il vous monstre tous les meilleurs autheurs de la connoissance qui explique une telle ou une telle loix voyez nicolaus de passeribus de reconciliationibus legum. while i was at campheire, towards the end of july , i had occasion to sie the book writ by our banished ministers at rotterdam and other places, and particularly by mr. macquaire[ ] put ut in the years , intituled 'an apologetical relation of the particular sufferings of the faithful ministers and professors of the church of scotland since august , wherein severall questions useful for the tyme are discussed. the kings praerogative over parliament and peaple soberly inquired into; the lawfulnesse of defensive war cleared; the supreme magistrats powers in church matters examined, mr. stellingfleets notion of the divine right of the formes of government considered; the author of the seasonable case answered: other particulars, such as the hearing of the curates, the appearing before the hy commission court., etc., canvassed, togither with the rise, raigne, and ruine of the former praelats in scotland, being a breiff accompt from history of the goverment of the church of scotland from the beginning, and of the many troubles which praelats have created to hir first and last, for satisfaction of strangers and encouradgement of present sufferers by a weill wisher to the goud old cause. then follows some places of scripture, as jeremias , ver. , micah , ver. - , isay , ver. - . [ ] robert macquare wrote a postscript to the _apologetical relation_, etc., which was the work of j. brown. a reprint in the _presbyterian's armoury_, vol. iii. ( ), is in the british museum. in this book they traduce spotswood, archbishop of st. androws, endeavoring to make him ridiculous, and empanelling him of falsehood in many places of his history, using to refute him the auctority of buchanan, a auctor more suspected then himselfe. in their section they prove the marquis of argyle most uniustly to have bein put to death the of may . the ground of his sentence they say in the page to have bein that he was and had bein an ennemy to the king and his interests thesse years or more bypast, which in effect (say they) is as much as give ye would say he had bein an active freind for the interest of christ, making gods interest and the kings interest point blanc contrary, so that a freind to the one could not be but a ennemy to the other. the thing that more particularly the parliament adhered to was his compliance wt the english and sitting in their parliaments. but that this was not treason, and consequently not capable to take his life, they labor to prove by sundry particulars, first that the lawyers themselfes (who best of any should know what treason is) complied, yea swore fidelity, to that government. they instance to his odium sir john fletcher, then kings advocate. dly, he was not guilty of compliance alon. many members of parliament sitting their to judge him war _conscii criminis_. dly, if compliance was treasonable and capable enough to put him to death, whey ware they so anxious to find out other grounds against him wheiron they might walk? ly, whey was never on save this nobleman not so much as empanelled for this fault, much lesse put to death? whow came it to passe that william purves, who by complying had almost occasioned ruine to many noblemen, boroughs, and gentlemen, was absolved by a act of parliament? then their was never act of parliament, nether any municipal law, condemning necessesary compliance for life and liberty wt a conqueror, and for the good of the country conquered, as treasonable. their was never a practick or _praejudicium_ in scotland for it since it was a kingdome. bruce did never so much as quaestion his nobility that in balliols tyme had complied wt edward of england. nixt the royalists say conquaest is a just title to a croune. so baleus[ ] in his _sacro-sancta regum maiestas_, cap. ; but so be cromwell conquered our country, ergo, he was our lawful governour and had just title to our croune. if so, whow could compliance and passive obedience to such a on be treason? in this he triumphs so, that he addes, let al the royalists answer to this wtout contradicting themselfes if they can. no definition out of the civil law can be brought of treason which wil comprehend necessary compliance; ergo, its no treasonable. finally, we sie compliance to be the practise of all conquered nations, yet upon the alteration of government no body condemned for it. [ ] john bale, bishop of ossory, died . in the end they appeal to al governours of states, lawyers, casuists, politicians, canonists, and quod-libetists, yea to royalists themselfes, whither or no when a nation is broken in or battells, so that they can do no more, but are oblidged to take laws from the conqueror, wil it be treason to comply wt the ennemy for life and liberty, and when he is chosen by the country to go and sit in the conquerors judicatories (which priveledge _ex gratiâ_ he grants them), to sie the affairs of the kingdom regulate, and sie to what wil be best for the good of the country. they persuade themselfes that all wil say this is no treason. then subsume they, but such was argiles compliance; ergo, for treasonable compliance he could not be put to death because not guilty of it. then ye have a vindication of mr. james guthry,[ ] execute of june , from the crimes layd to his charge wheirupon his sentence was founded. they say the crime was that some years before, being challenged by the king for somthing spok over the pulpit, he declined his cognizance as a incompetent judge in ecclesiastical spiritual matters, which declinaturs be a act of parliament, anno , are discharged under the pain of hy treason; but this they contend was afterwards abrogated, so that they conclud him to have died a martyr for the truth against erastian abomination. [ ] covenanting minister (? - ). in the section ye have the zeal of that minister, who upon the parliaments casting of the covenant, pulling out a six pence, took instruments in the hands of the peaple and protested against all courses or acts in preiudice of the covenant, for which he was banished. none of the banisht ministers could ever obtain a extrait of their sentence, which is a thing no judicatory ever refused. nixt, because they could not banish them furder then from scotland, they forged a bond to which they compelled the ministers to subscryve, wheirin they promised not to be found wtin any of his maiesties dominions under the pain of death; which they call cruel and unreasonable. voetius they commend and cite often. sharpe they call a betrayer of his bretheren, and a most unnatural sone of his mother church. then the reasons whence they refuse to go to the prælats courts are rendred; whey they refuse collation and presentation of them, which they exclaime against as popish, foisting in its steed the peaples frie election. in france they know not moor foul. they have sorts of excellent partridges. that we call the lampre elle, wt us esteemed almost poison, wt them called la lamprey, is a great delicacy. they are wery big. follows some riddles. * * * * * [ ] [ ] eight lines are omitted, containing four riddles with _double entendres_ which are grossly indecent without being witty. sequitur Ænigmaticum quoddam epitaphium bononia studiorum ante multa sæcula marmoreo lapidi insculptum: Ælia lælia crispis, nec vir nec mulier, nec androgyna nec puella, nec juvenis nec anus, nec meretrix nec pudica, sed omnia; sublata neque fame nec ferro nec veneno sed omnibus; nec cælo nec aquis nec terra sed ubiqe iacet. lucius agatho priscus nec maritus nec amator nec necessarius neque moerens, neque gaudens neque flens hanc neque molem nec pyramidem nec sepulchrum sed omnia, scit et nescit quid qui posuerit, hoc est, sepulchrum intus cadaver non habens, hoc est, cadaver sepulchrum extra non habens sed cadaver idem est et sepulchrum sibi. bacon has write apothegmes new and old, a litle book. a english curate said their was things that annoyed man, and they began all wt a double w, win, women, and tobacco, but whow does tobacco begin wt a w, wil ye say: tobacco is nothing but a weed, which word begins wt a w. another having read his text, sayd he had things to tell them, the first thing he know and they know it not, and this was that under his gown he had a pair of ragged breitches; the d thing they know and he know it not, and this was, whither they would give him new ones or no; the thrid thing nether of us knows, and that is the true meaning of thir words: and thus out of the pulpit he went. repasse dom alvare, repasse bien cxactement en ta memoire tous ces que tes yeux t'out fait voir de beau depuis que la suit de l'age les a rendus capables de faire une juste discernement des belles et de laides choses, et apres cette soigneuse recherche ne seras tu pas obliger de prononcer en faveur d'aminte, et d'auoüer ingenument quelle est sans contredit la plus aimable et la plus accomplie personne que nature ait jamais fait. quelle grace n'a tu pas remarquée au ton de sa voix comme en ses paroles et ses beaux yeux; n'out ils pas beaucoup plus parlé que sa belle bouche? o qu'ils sont eloquens ces beaux yeux! qu'ils sont doux! qu'il sont pourtant imperieux, qu'ils ont de charmes et de maiesté! qu'ils ont de charmes et de maieste? qu'ils ont de feu! qu'ils ont de lumiere! et que leur eclat est brillant et dangereux! vous dites tants de choses agreables que vous me fait venir l'eau a la bouche. dissimulez aussi bien que vous voulez la mesche est deia eventée. il n'y a gueres de fumée sans feu, iamais escritoire ne fut bonne espee, il vaut mieux tard que iamais. il ne faut pas lire beaucoup, c'est a dire, il faut faire choiz des auteurs et se les rendre familier. l'histoire a bon droit est appelle le tesmoin des temps, le flambeau de la verité, la vie de la memoire, et la maistresse de la vie. l'occasion fait le larron; for finding a thing in the way it temptes him to steall, it seing so faire a occasion. pain coupé n'a point de maistre, whence a man seing bread cut, wheirof no man is as yet in possession, he may freely take hold of it as belonging to none or having no master. chacune est fol de sa marotte: the crow thinks hir oune bird fairest. chaque pais chaque coustume. toutes choses ont leur season, qui premier nait premier paiste. the eldest feids first, insinuating the priveledges of primogeniture, which are great in france as also with us. il faut prendre gard (saye the frenchman) d'une qui pro quo d'une apotiquaire (as when in mistake he takes one pig[ ] for another, or out of ignorance gives a binding thing for a laxative) d'une et caetera d'un notaire (by which is taxed the knaveries of that calling), d'une dewant une femme, d'une derriere une mule, et d'un moin de tout costes: thats to say, diligently. of the man that undertakes the voyag to rome, because of the great corruptions their, of which few can keip themselfes frie, the frenchman sayes: jamais bon cheval ni meschant homme ne s'amendist pour aller a rome. when they would taxe on for being much given to lying, they say, il est un menteur comme un arracheur de dents; for the tooth-drawers wil promise that they sall not so much as touch them almost, that they sal find no peine, when in the interim the peine wil be very sensible. of one much given to study, they say, il estudie tant que les rats scauroient manger ses oreilles. who can approach such a glorious sun wtout being dazeled. [ ] earthenware vessel. the french are generally wery timorous on sea, whereon he sayes, je n'aime pas passer la ou le cheure[ ] ne scauroit fermer ses pieds, hold its feet. the frenchman sayes that he hath heard qu'une grande riviere et un grand seigneur sont mauvais voisins. vous serez bien venu comme une singe, mais point comme une renard. chou pour chou, craft for craft. patience abusé se tourne en fureur. laughter compelled and bitter, as the latins calles it, risus sardonius, so the french sayes; le ris d'hosteliers qui ne passe point le noeud de la gorge, because that hoasts and others of sick like stuffe laught ordainarly to please their ghests wt out any true affection to laught. the occasion of the latin, risus sardonius, as erasmus explaines, is because of a herbe called in latin, apium risus, in french, herbe de sardagne, because it growes in great abondance in sardinia, which no sooner eaten but it looseth and disiointeth al the nerves, so that the mouth falls wide open iust as give they ware laughting; yea in this posture they die. thus the commentator on du bartas weeks, que dit un peuple dit un fol, who sayes a multitude sayes a fool. c'est tousiours plus mal-aisé de faire mal que bien, its easier to do a thing the right way then the wrong, as in opening a door. il n'y a marchand qui gaigne tousjours. _nemo ubique potest foelici_,[ ] etc., its a good roost that drapes aye.[ ] of him that out of scarcity tauntes his neihbour wt the same scorne wt which he scorned him, the frenchman sayes, il ne vaut rien pour prendre la bal a la seconde enleuement, at the d stot. he is a man of a crounes a year, l'un important l'autre, on way or other; its used also in drinking healths. of a modest, learned young man, _cui contigit ante diem virtus_, they say, qu'il demente son menton, he belyes his chin. if one would know another weill he most try him and sus et sous la peau trinque [land][ ] hachis hach, old french words used by du bartas. if ye demand him for a thing he hath eaten, he'el tel you, il est passé par la ville d'angoulesme. of a man that hath not spirit, they say, il est ni chair ni poisson; l'on moque de cela a la cour. entre nous autres gentils-hommes il n'y a point de bourgois, as give ye would say, among whites their is not a black. [ ] chèvre, goat. [ ] for _felici_. [ ] ferguson's _scottish proverbs_, p. : it's a good goose that draps ay. [ ] interlined. they put a gentleman and burgoise as opposites; he cannot be a gentleman if a burgoise; but he may become on and then he ceaseth to be a burgoise. i urged whither or no a gentlemans sone by becoming a burgoise was not stil gentleman; they sayd not, for by becoming bourgoise (he is called roturier) he seimes to renounce his right of gentleman. throw germany they are thought so incompatible, that if a man can deduce himselfe, tho never so far fetcht, from gentlemen, he, tho he have no means and be like to starve, he wil not turne marchand or any other trade. une harangue de gascoigne is on courte et mauvaise, tho they have not the tongue and cannot manage it weil, yet they have ever manadged the sword weill, being brave sogers, and consequently horrid rodomontades and boasters. du bartas tho was a gascoin. they call a brothers sone in france neveu; our sones sone petit fils. a barren women in france they call very disdainfully une mulet: thus they termed marguerit, king of spaines daughter, emperor charles the neice, henry the ts queen, for a tyme, who cucolded him. we most never forget the catalogues which served pighoog[ ] of so great use, on of all the fathers, the other of all the haeresies; also the dron[ ] and false latin we fand in the corpus glossatum, domine tanta, etc.; as also our rowing at the boat, pighogs ...[ ] and piters falling on his back, his perruvick coming of; also our sports that night we studied the stars wt mr. james, his griveous hat, and james of a low stature and william ker had almost lost his hat, wt many others to be recalled to memory. [ ] a nickname for somebody, perhaps a tutor or schoolmaster. [ ] have not found this word. [ ] three or four words erased. if we be demanded at any tyme to sing a song we may begin...[ ] we would look to the company. if they be speaking of any song, we may say we have heard it song sweitly wt , of them harkening and the d not opening his mouth. if we fall to be demanded to tell a story we may begin ...[ ] that of him that called himselfe ...[ ] if they be talking of wonders, we may say that their was a stone at poictiers, which at every twelve howers it hard whirled about thrice. also when togither wt any commorads and fall to in merrinesse to dance, at any pas in mockery we may say it was worth a crouns. [ ] nearly a line erased. [ ] three or four words erased. [ ] two words erased. they have proverbs in france: , save a thief from the gallowes and he'el be the readiest man to help you to it; , never commit your secrets to a woman, as to your wife; and d, a man sould not bourd[ ] wt his masters. [ ] jest familiarly. one example sal verify all . in the tyme of charles the great their was on that had a great wogue of learning and wisdome, to which man the king concredited his sone the prince. one of the princes attendants was taken in a roobery and condemned to the gibbet: the prince and his master begged his life, and so saved him. to try the d byword, the master took his pupill the prince to the soan to bath, having bathed, he put him wtin a mil wt strait orders not to stir from that til he called for him. he comes home to his wife wt a feigned heady countenance, telling her wt a great deal of protestations for secrecy, that as he was causing the young prince for his healths sake bath, he was perished. tomorrow he pickt a litle quarrel wt his wife, before some company: she being angry wt him cost up the secret to him, so that it was immediatly conveyed to the kings ears, who in a fury ordained that he sould be broken on the wheel. the usual executioners could not be found; yea, no other body that would supply his place, so generally was the man reverenced be all. the king enraged, offers pistols to him that wil do the turne. none yet presents themselfes save only the theif he had saved from the gallowes. the childs gowernour having tried all that he desired, demanded licence to go bring the prince safe, which he did to the admiration, wonder and gladness of all. he fand it was not good to play wt his superiors, as also he did who once taking of charles the beard in france took the boldnesse to sie that the kings throat was in his reverence, was hanged immediatly, the king saying that his throat sould never be in his reverence againe. also that nobleman who getting the king wtin that great cage that's to be sein at chinon yet, in sporting said that he had the king at his reverence; its true, quoth the king, but let me out. he was no sooner out but he caused him be shut up in the cage, and suffered him to dy their for hunger wtout mercy. the story of k. james his fool may werify this same truth. the french sayes, _il n'est pas tant la qualité que la quantité de quelque chose qui fait mal_. is it possible that the sun hath halfed his privilegde wt you; that as he communicated heatte to the inferior bodies wtout enioying any in his oune sphaere, so also can you ...[ ] not heats but dazeles and mortally wounds all that approach you wtout being in the least touched yourselfe; no, pardon me, if i cannot beleive it. [ ] word erased. if i be spaired what sort of folks the french are, we may reply they are folk wt noses on their faces, and that like st. paul never speaks but they open their mouth. rapier and miton[ ] are french words. [ ] _mitten_. the french word has also other meanings. they have many othes in france. jesus, maria, and nostre dame are lawful oaths used by the churchmen themselfes. jarne[ ] diable is also lawful, as the cordelier sayd in his preaching, jarne mahomet most also be lawful. they have a numbre of horrid ones, as ventre dieu, teste dieu, mort dieu, ou mort blew jarnec dieu; cap de bious, a gascoin oath, and verté chou, a great oath assuredly. [ ] corruption of _je renie_. qui a bon voisin a bon mastin, he is as steadable to him as a good mastive. charité bien reiglée commence a soy mesme. to the same purpose, le peau est nous plus cher que la chemise. le chat aime le poisson bien, mais elle n'aime pas de mouiller ses pates. ce qui vien de la fluste s'en retourne au son du tambour, il woon soon spent; goods lightly gotten lightly slipes away. when ye would say that he knows not weil sick a man, vous n'avez iamais mangé un minot[ ] de sel avec lui. dite moy quelle companie vous avez frequenté, et ie vous diray vos moeurs. [ ] a measure containing half a mine, equal to thirty-nine litres. a northern minister preaching on that, esau sold to his brother jacob his birthright for a morsel of pottage: base man that he was, quoth he, the belligod loune, sel his birth-right for a cog of pottage, what would he have done if it had bein a better dish. they alleadge that a frenchman sould have sayd, that if our saviour had a brother, the greatest honor he could put upon him would be to make him king of france. anthoine le bourbon, protestant of the kings of navarre, having got a capycin and a minister together, he would have them dispute before him. the minister began on the point of the crosse. theirs a tree, sayd he, of the one halfe of it ye make a crosse which ye vorship, of the other halfe ye make a gallows to hang up a theif on. whey carry ye respect for that peice ye make a crosse of, and no for that ye make the gibet of, since they are both of on matter? the capycin seimed to be wery much pusled wt this. after a little pause he demands the minister if he was married. yes, that i am, what of it? quoth the m. whow comes it to passe then, quoth the capycin, that ye kisse your wifs mouth and not hir arse, whey have ye more respect for hir mouth then hir arse, since they are both of on mater? the minister thought himselfe out; yea, king anthony thought shame of him. their was a minister of fyfe of the name of bruce that had a great gade[ ] of ending promiscuosly his sermons, as, for example, he was telling on a tyme how the beaver, being purshued hotly by the hunters, used to bit of his stones, the silly fellow, forgetting what he had to sy more, added, to which end, good god, bring us, as if he had sayd to bit of our stoons. he closed in that same sort once whow judas hanged himselfe. once as he was exhorting the peaple to beware of the devil, who was a roaring and ramping lyon, etc., he added, to whom wt the father and the holy ghost be all honnor and glory for now and ever, amen. [ ] probably for 'gait,' way. one being asked whence came the antipathy that we find betuixt some beasts, as the dog and the hare, the lizard (ichneumon) and the crocodile, the sheip and the wolfe, and he replyed that it began wt the flood of noah when they ware all in ark together, that then the hare stol the dogs shoe from him, and that theirfor the dog ever when he sies him since runs efter him to get his shoe again. the mythologists gives reasons whey they[ ] bloody bat flies under night, and compairs not on the day: the first is because of his defections from the birds when they ware in war wt the beasts; the d because beginning to marchandise he played banque route, whence he dare never be sein in the day for fear that his creditors take him wt caption. [ ] perhaps 'the.' the 'y' is indistinct, as if it was intended to be erased. this minds me of on at edenborough, who being drouned in debt durst never pipe[ ] out in the day light, but always under night. on a tyme coming by the fleschstocks of the landmarket, a cleak[ ] claughts a grip of his cloak, and holds him. he immediatly apprehending that it was some sergent or messenger that was arresting him, he cryes back as pittyfully, at whose instance, sir; at whose, etc. [ ] peep. [ ] hook. a minister of bamf (as mr. mowat when i was at dinner once their reported it), being to give the communion, he had caused buy as much win as would serve for his parishioners. whil the cup is going about, it falls to be ful on a strong, sturdy cloun that used not to drink win oft, and who was wery thristy; he gets the cup to his head; he never rested tel he had whistled it over. on of the elders, seing what he had done, in a great anger cryes out, even the devil go doune wt it, for that might have geined[ ] a dozen. [ ] gein or gane, sufficed for. its reported of gustavus adolphus that he was used to say, that for ennemies he had to do wt a fool (which was valstein, duc of fritland, one of the imperialists generals, a cruell man and a foolish man, he thought to make himself emperor; wheirupon at the emperors instigation he was slain by our countrymen leslie and gordon: butler would not do it), wt a soger (which was pappenheim, a brave souldier, slain in that same battell of lutzen that gustavus was slain in), and a preist; which was tilly who never wanted his chappelets of his arme, never missed a messe, and boasted he never know a women. many a brave scotsman served in thesse wars of germany (we most remember what he did to that tyran the duc of cleves), amongst others on colonel edmond,[ ] a baxters sone of stirleving. [ ] colonel sir william edmond. see _scots brigade in holland_ (s.h.s.), vol. i. p. , where it appears that his father was a baker in edinburgh. colonel edmond died in . the bischop of munster, a merry man, wil cry whiles, _donnez moy trois grande verres de vin_, then, _c'est a la santé des mes trois charles et charles seconds: charles d d'angleterre, charles d d'espaigne, et charles d_ [sic] _de suede_: this is wery remarkable. philip, the d, charles the emperors son, had also a charles, prince of spain, whom most barbarously he caused strangle, as peter mathieu reports it, tho strada would dissemble it. we had several marks of the spanish gravity in this prince. when the news was told him of the great victory of lepanto, woon over the turks by his natural brother, dom john of austria (the way whow they made d. jean know his quality is worth the knowing), generalissimo of the christian forces, he would not appear to be moved wt the least joy, al he sayd was, _dom juan a beaucoup hazardé_. when the news was told him of the dissipation of his invincible armado, commanded by the duc of medine sidonia, he would not seim to be troubled wt it, all he sayd was, _j'ay envoyé une flote pour combattre des hommes non pas les vagues et les vents_. they reporte of the queen of suede when she was in france that she was wery curious to sie all the [brave][ ] great men of the court, and amongs others to sy mr. le prince[ ] who hes no great mine[ ] to look to. on a tyme entering unto the roome wheir she was, some told her it was mons'r le prince. she, having contemplated him disdainfully, cryes out, _esque la le prince de qui l'on parle tant_: he gied[ ] his hat a litle, and payed hir wery weil back in her oune coin, _es que la la reyne qui faict tant parler d'elle_. [ ] interlined. [ ] condé. [ ] mein. [ ] turned, cocked. the young daufin of france, tho not yet years old, gives great hopes of proving a brave man. as the king was removing from st. germains to go to fontainebleau, and they had taken doune the plenishing to carry and put up their, as the daufin is coming thorough the roomes he begines to misse their hingers,[ ] he spears what was come to them; they told him they ware carried to f'bleau. hes not f'bleau, quoth he, furniture for it selfe of its oune; they replying no, _cela est vilain, cela est honteux, dit-il_. his answer was told to the king: he did laught and say, _il a raison, il a raison_. [ ] hangings, tapestry. they prove that a woman hes not a soul out of that of the of genesis, and all the souls of abrahams house ware circumcised, but so be its certain the women ware not circumcised; ergo, they have not souls. mr. thomas courty, preaching on that, be ye followers of christ, sayd their was sort of followers of christ, the first was them that did not follow him at all, the them that ran before him, the d sort of followers was them that went cheeky for chow wt him, the was them that ware indeed behind him, but so far that they never could gett their eye on him. king james gave one of his daughters to the count palatin of the rhin, frederic, who was afterward chosen king of bohemia in , the states having declaired the nomination of the archiduc ferdinand afterwards emperor nulle. this election was the occasion of thesse bloudy wars that troubled poor germany from to wherin the peace of munster was concluded. the elector sent to king james desyring his assistance, who refused it (against his interest), wt this answer, i gave my daughter to the palatin on the rhin, not to the king of bohemia. the elector hearing this replyed, a man that marries the king of englands daughter whey may not he be king of bohemia. a frenchman told me that he beleived when the devil tempted our saviour to worship him by showing him al the kingdomes of the earth and the glory of the samen, that the devil did put his meikle thomb upon scotland to hide it from our saviour for fear that having seen it sick a montanous, barren, scurvey country, he sould have conceaved a disgoust at all the rest.[ ] [ ] montereul tells the same story. see his _correspondence_ (s.h.s.), vol. ii. p. . [what follows is written at the end of book, and written the reverse way to the rest of the ms., the two writings meeting on the same page.] from monsieur kinloch, i have receaved first livres at paris; a bil for at orleans, another for ; as also a third for payed me by one mr. boyetet, marchand their. at poietiers i have drawen on francis for a livres, of which i have receaved payment heir from mr. augier, marchand. i drow again for , out of which i have payed mr. alex'r francks, whence their rests me about . in february i drow for f., out of which i payed francks to my hoast; i lent pistols to mr. alexandre, a escu to mr. grahme. * * * * * claudes answer to the perpetuité of the faith _f_.,[ ] du meulins bouelier _f_., hallicarnasseus _f_., hypocrates _f_. les remarques du droict francois une escus, fornery selectionum llibri duo _f_., les bouffoneries des guicciardin les lois usitees dans les cours des france de buguion[ ] acheptées dans le cemetiere des ssts innocents. l'istoire universelle de turcelin en tomes _ll_., le parfaict capitaine _f_., les oeuvres de rabelais en deux tomes _l_. [ ] f stands for sou; _l_ for livre. [ ] buguion, for bourguignon. * * * * * in my voyage of flanders i changed jacobuses and a carolus, amonting to some _ll_. to my hoste of anvers, when i was going to gand for dayes and a night _ _. _f_., to the cocher for gand _f_., for my diner by the way _f_. at gand for going up on the belfroy _f_., to my hoste at the cerf _ll_. _f_., for my place in the waggon coming back _f_., for diner wt that suisse of zurick _f_., to my hoste of antwerp for a night _f_., for my place in the coach for mardick _ll_., for my diner on the way _f_., for my supper _f_., to the master of the bark for rotterdam _f_., for entry _f_., at the ...[ ] house _ll_., for washing _f_. [ ] a word here is illegible. the last part of it seems to be kerers. in gold i have at present, december , pound peices, caroluses, of whilk i got from my father before my parting from scotland, the other remaines of i exchanged wt mony at london, besydes thir i have other peices, which seime to be schiling peices, wt other lesser ones. i have a ring wt a mark peice and a ii schilling peice. on of the caroluses is in shiling sterling peices. i have but caroluses now. i changed on of them coming wt the messenger from poictiers. in my voyage thorow flanders for holland, i spent jacobuses, so that i have no mo but and a carolus, so that i have no mo but ; the carolus at _ll_. _f_., the one jacobus at gand at _ll_. _f_., the other at antwerp at _ll_.[ ] [ ] half a page blank in ms. a breife account of my expenses from my taking horse at edenborough, of march til this present of may , according to the scots account, and also after. first before my parture i got from my father in gold caroluses, or shiling peices, jacobuses,[ ] or pound peices, wt shil. peices, and as many . in money[ ] i got first shilings, then halfe crounes, thats crounes; and last i had my horse price, for which i got pound and a croune to lift at london. of my gold i spended none til i was in france, whence their remained only the silver mentioned to spend. of this our journey to london spent shilings, including also the shilings i payed ut for the baggadge horse at durham. at london of the silver resting, to wit, the crounes and pound sterl. i payed pound of silver for caroluses, whence they had groats[ ] of gain for every peice. this consumed the crounes, a pound sterling and crounes out of the horses price; so that for defraying my charges from my first arrival at london, on saturday, april , til monday com dayes, april , compleit dayes, i had only the remaining mony wt in pounds. of which shilings by that halfe day of posting to dover was exhausted, comprehending also our expense for our meat, and in paying the postilion, for betuixt gravesend and rochester burn we payed halfe a croune; from it to seaton, miles (the former stage being but ), shillings; from it to canterbury, miles, shilings; from canterbury to dover, miles, shillings: their was of the shil. at dover, as dues we payed shillings to that knave tours; our supper at one buchans was halfe a croune; our fraught throw the channell was a croune, and to the boat that landed us a shiling. [ ] see introduction, p. xliii. [ ] i.e. smaller coin than gold; fr. monnaie. the half-crown, s. scots, s. d. sterling, was coined by james vi. [ ] groat (english), value d. no groat scots had been struck since , value l d. scots, or ijd. we landed at calice on the saturday morning, and stayed their til the monday afternoone, spending much mony; so that from my arrival to london and my joining wit the messenger for paris i spent pound shillings. thus is all my silver, so that now i have my recourse to my gold, out of which i pay the messenger livres to carry me to paris, giving him caroluses, which according to the french rate roade livres, souse, whence got souse againe.[ ] at paris i changed [on]e carolus to pay mr. strachan and mr. hamilton, who on the rode in france had payed for me, as in the drink money, and in paying the messenger halfe a croune. [ ] there seems to be a mistake here. three caroluses ( -shilling pieces) would be worth at their nominal value only livres. but in france they did not fetch so much in exchange. if they were worth each _ll_. s., as the one he exchanged in flanders (see p. ), livres to the messenger instead of would make the calculation right. thir ware all my expenses till i was answered of mony be francis kinloch, so that i find all my expenses betuixt edinborough and paris, wheir i arrived the of april, to amount to pound sterling give i count the peice i changed at paris, to only give i exclud it. all this being spent, on my demand f. advanced me livres, of which was spent on these books i bought at paris, wheirof i have set doune the cataloge; souse for a pair of halfe stockings; for a stamp, a comb, for helping[ ] my whip and my pantons[ ] i payed souse; for a pair of gloves souse; for vashing my cloaths souse; a croune and a halfe among mr. kinloch's servants: theirs ane account of livres out the . for the other i can give no particular account, only it might be spent when i went in wt commorads, as when we went to drinke limonade and tissin, etc. at my parting from francis i got livres, which wt the former makes a livres. of thir , i payed to the messenger for orleans, livres baiting a groat for the carriadge of my valize and box, which weighted pound weight, and for each pound i payed souse. about a livre i spent in drinkmony by the way; another i gave to the messenger. heir of my livres are gone. [ ] mending. [ ] slippers. thus i won to orleans. the fellow that carries my valize to mr. ogilvies gets souse; at a breakfast wt patrick portues i was souse. for books from my coming to orleans til this present day, of may, according to the scots account, i have payed livres; for seing a comedy souse; for to helpe my hand in writting a croune; for dancing a croune in hand, the other at the moneths end; for to learn me the language i gave crounes. to the maister of the law im to give livres souse; for a supper wheir mr. ogilvy payed out for us livres. this being all ramasht[ ] togither it comes to livres, so that of the only are left. out of thes i payed livres souse for a pair of clesps, whence rests only livres souse. i pay souse for one vashing of my linnens, and souse at a four hours wt james hunter. thus ye have ane account of all livres i got from f. kinloch til souse. ut of the mony mentioned i payed also livres souse for a pair of shoes. [ ] ramashed, ramassé. about a moneth after i had bein in orleans francis sent me a bill for a hundred and livres on on boyetet, marchand their. out of whilk i immediatly payed mr. ogilvy for the moneths pension bypast livres; for to teach me the language for the moneth to come livres; for washings of my linnens souse, so that out of my livres are gone, whence remains only. francis, at mr. ogilvyes order, payed at paris livres. which mr. ogilvy was to refound to me: this sal pass as part of payment in the d moneths pension. out of the remaining i have to pay mr. le berche a pistoll; mr. schovo livres, whence their are only . for a pair of stockings livres; for a wast belt livres; for mending my silk stockings souse, for washing my linnings souse; so that now their remains only . thir livres put wt that livres francis payed at paris, and was to be refounded to me, makes livres, which madam ogilvyes extravagant compt for my d moneth, and my dayes above (being) pension wholly exhausted, for first i payed livres, and then for the drink that i had that night i took my leave of the gentlemen their a pistoll most shamelessly. this put me to write for a bil of another livres, of whilk i receaved payment, paying out of it againe souse to him that carried me from orleans to blois; to my host at blois i payed livres souse, paying, to wit, for the victualls i took in wt me for the following day; to the fellow that carried from blois to saumur, dayes journey, a croune; at tours i was souse; at saumur, wheir i was dayes, i was livres souse; to the fellow whose horse i had, and who bore my charges from saumurs to poictiers, livres; to him who took us throw richelieu castle souse; to the messenger that brought my box a croune; to madam garnier for the dayes i was wt hir a pistoll, to hir maid souse; for a pair of linnen socks souse. thir be all my considerable expenses til this present day, july last: all which ramassed wil amount to livres, but in some places i most have heighted, for give so then i sould have only of my resting, when i have about at present. out of thir i have payed francks for a corpus juris; francks for a vesenbecius; souse for a litle institutes, which ramassed makes livres, whence their only remaines me : out of thir for a supper wt mr. alexander and all the rest of our compatriots above livres; whence at this present august rests with me about livers souse. out of thir i have payed souse for the lean[ ] of romances from mr. courtois, as celie and the sundry parts of almahide, penned by scuderie; souse for a pair of showes; souse for our dinner one sabath communion wt colinton and peter hoome in the fauxbourgs; souse for cutting my head; souse on a pair of carts; about souse on paper and ink; for washing souse; so at this present first of september i have not full livres. i have payed souse or livres for a pair of gallozes;[ ] souse for a quartron of peches; souse to charlotte, whence i have little more then livres; souse at a collation. [ ] loan. [ ] braces. when i was reduced to thir livres, then i was answered of my bill i drow on francis kinloch for a livres. out of which i payed livres for halfe shirtes, but because we had livres of old mony we shall call it only ; livres for gravates; livres to mr. daillié, whence i have about livres. out of thir i have payed livres to mr. rue, wt whom i began to dance, september , ; souse at the tennis; or for lettres ports; souse for a horse hire; or souse i was put to dispurse that day; livres for washing my linnings; souse sundry wayes; souse on a quartron[ ] of dragées[ ] or sweityes, which are sos. the livre; souse on a peice stuffe, sousemarkies[ ] to lowise;[ ] souse for ports; souse to the barber; souse for a bottle of win to my c.;[ ] francks lost at carts; souse at a collation after supper, when we wan all the fellows oubliés,[ ] and made him sing the song; a escus to mr. rue; a escus for dressing my cloaths; une escus for wasching; [ frank souse for my supper the night of st. andré; souse wt mad'm and others at the croix de fer].[ ] thus is al that rested me of thesse francks, the first mony i drow at poictiers gone. [ ] quarteron, quarter of a livre (pound). [ ] sugar almonds. [ ] _sous marqué_. see p. , note . [ ] _probably_ a maidservant at m. daillé's. [ ] 'my c.' has baffled me. [ ] see p. , note . the meaning here is obscure. i can only conjecture that the party made a wager of some kind with the pastrycook's man for his cakes. see p. , note . [ ] erased in ms., but legible. then beginning of novembre i drow livers. out of which i payed mr. alex're _ll_, whence there rests wt me francks, of which i have payed francks souse for my part of that supper we had the night of st. andré; souse wt mr. d. and others at the croix de fer; souse to the barbier; souse for a pair of gloves; francks to mr. daillie; souse on romances; souse to garniers man; une escus on the day of the new year as hansel, les estraines to rue, biron, and violet for their musick; souse in collation to my countrymen that same day; sousmarkies the sabath i communicated at quarter picquet, being the of january ; sous markies on nöels. when i had about souse, i borrowed a pistol from r. scot, after i payed a croune[ ] for the port of my cloack from paris; souse for win that night that grame payed us his royaute wt frontignan and enschovo'es. my oune royauté cost me souse on a good fat bresil cook and on wine; souse on a iockleg,[ ] my scots on being stolen from me; souse on a inkhorn, my scots on breaking wt a fall; souse to the barbcr. about the mids of january , for a pair of shoes, which ware the pair i had made since my leiving of scotland, march before, a croune; to mr. rue a croune; to madame marie for my last washing souse; at a collation souse. [ ] see introduction, p. xliii. [ ] folding-knife. etym., jacques de liege, cutler. about this tyme i receaved crounes in lain[ ] from alex'r home that same night that mr. mompommery was headed; souse on a bottle of wine; souse at another tyme; souse at the comoedy; souse for my chair; souse at another comoedy; une escus to mr. rue the of february; souse at a comoedy, called les intrigues des carosses a cinq sols, the farce was la femme ruse ou industrieuse; souse for mending my sword. [ ] loan. about the end of february i was payed of a bil of _ll_. i had drawen. out of which i payed first a f. to my host; then lent pistols, halfe a pistol and crounes to mr. alexander; out of it a croune to grahme; souse for a peice concerning monting a cheval, presented me by the author of the samen; s. for mending stockings; a croune at a desjeuner wt georges sinclar and other countrymen, coming from bordeaux going for paris; souse to mr. rue; s. at a collation; a croune for la perpetuité de la foy; souse on a collation in the fauxbourgs wt mr. bourseau; souse lost at the fair on china oranges and cordecidron; souse for le capychin escossois;[ ] s. to rue; souse at a collation wt him; s. at another wt de gruches and ingrande; s. for une voyage de france. that which remained of these _ll_. went away partly on my hoast, partly on my adieus, which stood me wery dear, and partly in paying the messenger for paris (i payed _ll_.). [ ] father archangel leslie. it suffices to know that on my arriving to paris i was wery light of mony, whence i borrowed from mr. kinloch some crounes, of which i bestowed some _ll_. on books, thus, on some comoedies about souse, on scarrons virgil travestis s., on pacij centuria[ ] s., on robertus rerum judicatarum[ ] s., on the voyage de la terre saincte[ ] s., on laertius[ ] s., on a new testament s., on du moulins bouckler[ ] s., on mr. claudes answer[ ] s., whence their remaines me about _ll_. out of which i first payed neir _ll_. for a pair of shoes; s. that day i communicated at charenton to the boatmen, the poor, and my seat; on day wt mr. forbes it cost me in a cabaret a croune, and scot keipt up a escu dor, which was _ll_. souse.[ ] the day after at the bowlls i lost _ll_.; then i payed for limonade _ll_. s.; then after _ll_. s. which i lost at bowlls; for a point de flandres _ll_. whence of the _ll_. their remains me only , to which add i receaved from the messenger of poictiers, and i have just a pistoll this of may , of which i lent a croune to mr. grahme; then payed s. for a collation wt kinloch, mowat, and d. hewes; also s. for a part of a collation; i payed francks wt my l. ogilvy at a collation; s. at another tyme wt j. ogilvy; souse on a hallicarnasseus[ ] and a hippocrates; and that out of livres i receaved from f. kinloch the of may, so that this day th i have now francks. on les remarques du droit francois a croune. that day i went to ruell a pistol; on my journey to fountainbleau crounes of gold. on the parfaict capitaine and the universal history, in tomes, _ll_. [ ] pacius, julius, [greek: enantiophanon], _seu legum conciliatarum centuriae_ vii. ( ). ed. alt. . [ ] robertus, annaeus, _r.j._, lib. iv. ; new ed., . [ ] doubdan, jean, _voyage_, etc., . [ ] diogenes laertius. [ ] molinaeus, petrus, _bouclier de la foi_, . engl. tr. . [ ] claude, jean, _réponse à la perpétuité de la foi_, . [ ] _ecu d'or_. see introduction, p. xliii. [ ] dionysius of halicarnassus. on the of june i receaved crounes. out of which i payed first _ll_. for rablais in tomes; s. at collation wt that frenchman of the kings gard; s. the day after wt the captains; s. wt j. ogilvie; _ll_. for mornacius observations;[ ] _ll_. for guiccardins[ ] history, in volumes; s. for gomesii commentarius in regulas cancellariæ and le martyre de la reyne d'escosse;[ ] s. for bellon[ ] resolutiones antinomiarum and molinoei sommaire des rentes, usures, etc.; molineus in consuetudines parisienses s.; connani commentarius in jus civile s.; mantica de coniectur: ult. voluntatum[ ] s.; hottomanus[ ] in instit s.; molinoei consilia s.; menochius de interdictis s.; valerius maximus s.; l'histoire du concile de trente _ll_.; gellius[ ] s.; cepolla[ ] de servitutibus s.; les memoires et le voyage du duc du rohan s.; profession de foy catholique s.; le monde d'avity,[ ] in tomes, crounes; aubignées history[ ] _ll_.; pierre mathieu his history, in tomes, _ll_.; du plessis memoires, in volumes, _ll_. at a breakfast wt mr. fullerton _ll_.; at a collation wt mr. ogilvy _ll_.; crounes given to the box of the scots talzors at paris; s. given to sy the gallery of the luxembourg; s. at a collation wt mr. hume and grame; a croune on our diner that day that mr. geismar went to charenton wt us; _ll_. for munsteri cosmographia; thucydides s.; desseins de mr. de laval s.; in collation wt that gascon of the kings garde (called st. martin); machiavellus s.; justini historia s.; histoire du seicle de fer s.; les oeuvres de du vair s.; le sage resolu, in tomes, s.; cardanus de subtilitate s.; histoire de portugal s.; tacitus s.; remarques politiques from henry hamilton for a compend of philosophy of marandé[ ]. [ ] mornacius, ant., _obs. on codex_. ( ), _on digest_ ( ). [ ] guicciardini, francesco, _historia di italia._ [ ] blackwood, adam, _le martyre_, etc. [ ] bellonus, joannes, _antinomiarum juris dissolutiones_. lugduni, . [ ] mantica, fr., _de conjecturis_, etc., . [ ] hottomannus, fr., _commentarius_, in iv. lib.; _inst_., . [ ] aulus gellius, _noctes atticae._ [ ] cepola or caepolla, barth, _tract, de serv._ [ ] avity, pierre d', _les estats, empires, etc., du monde_. [ ] aubigné, th. a., _l'histoire universelle._ [ ] marandé, léonard de. _abrégé curieux el familier de toute la philosophie_, and . on the of july i packt up al my books in a box to send them for dieppe, and to the end they might not be visited any wheir else, i caused them be carried to the douanne of paris, which is the controoller of all others, and by which if things be once visited none in france dare efter offer to visite them. their it stood me a croune or _ll_ to cause remballe it; souse to cause plomb it wt the king of frances armes; s. for a passeport. they lightly looked over the uppermost books. then i caused it be carried to the chassemary of dieeppe. i gave the porte faix s.; s. for a italian grammer; s. for mureti orationes; s. to the secretary of sts. innocents; s. for sleidan; s. for fabri rationalium tomus jus;[ ] for volumes of de thoues history s.; for aschames lettres s.; for le cose meravigliose della cita de roma s.; for pierii hieroglyphica s.; for harangues out of al the classicks authors s.; to schovo for a moneths dancing ii. _ll_.; _ll_. s. for a pair of shoes; _ll_. for sundry washings. [ ] primus. about the of july i receaved some _ll_. in golden crounes.[ ] out of which i have payed for lucians dialogues, le tresor de st. denis, bodinus de specibus rerum publicarum, essex's instructions for a traveller; s. for oudins italian grammer; _ll_. for index expurgatorius; s. for exames des esprits in volumes; s. for brerevood of sundry religions; s. for a enchiridion physicae restitutae for mr. fullerton; s. for a book of fortifications, not the jesuit fornevers; _ll_. for carts, for _ll_. s. i had payed for volumes of thou s.; heir again for other i pay s.; for scuderies discours de rois s.; itinerarium hollandicum s.; _ll_. on a collation to captaine rutherford, etc.; s. for my breakfast wt mr. samuel fullerton coming from the bastile; a white croune and a croune of gold...[ ] s. for washing; s. at collation wt that englishman mr. waren, his addresse in london was towards street, at mr. carbonells; s. lost playing under the hats; for mr. morus his poeme a croune; for a new testament a croune; for the state of france and of germany, in volumes _ll_.; to mr. fullerton for his botero[ ] a golden croune; for a purse at the faire of st. laurens s., and that out of crounes borrowed from mr. kinloch, of august; crounes given in drink monie; s. on fancies for the children; s. on a collation wt william paterson; _ll_. for a trunck valise. [ ] this gives the value of the _écu d'or_ at _ll_. s. see introduction, p. xliii. [ ] a few words erased. [ ] bolero, giovanni, author of several treatises of political philosophy and history towards the close of the sixteenth century, some translated into english. then to do my voyage a _ll_.; given for my place in the coach to bruxells; for my diner at louure s.; supper at senlis s.; diner at pons s.; supper at conwilly s.; diner at marchele peau s.; supper at peronne s.; supper at cambray s.; diner at valenciennes s.; super at kivray s.; diner at mons s.; super at bremen s.; diner at hall s.; to the cocher s.; to our escort _ll_. at bruxelles, for taking of my beard s.; for seing the palais s.; for dayes to my hostesse _ll_.; for my horse to enguien _ll_.; for my diet their _ll_.; for washing, also for mending my shoes, s.; for my place in the bark of anvers s.; for carrieng my things ther s.; for the removing them from bark to bark s.; for my diner their s.; for seing the citadelle of anvers, wt some other smaller things, s. thus goes the _ll_. ii notes of journeys in london, oxford, and scotland, - and other papers ( ) notes of journeys in england and scotland, - . a continuation of some travells. sie volumes in 'to relating to the same subject _alibi_. the peace[ ] was proclaimed at camphire[ ] the of september, stylo novo, , as also at flusing: at middleburg not til the , because their market day: their feu's de joy ware on the . [ ] the peace of breda between charles ii. and the united provinces was signed on st july, but the ratifications were not exchanged for some weeks. [ ] campvere, now vere, a town in the island of walcheren. tervere (der vere) is the same place. i left tervere the 't, came to flessinque; wheir we lay by reason of contrary winds til the , on which morning it was at south south east. our skiper, a honest fellow, was called tunis van eck. coming out without the head,[ ] whither by the wind or negligence of the marinels i know not, we dasht upon it which strake a lake in our ship wery neir my arme long. all ware wery afraided of drouning; only being neir the toune, a carpenter, a most lusty fellow, came and stoopt it wery weill; wheirupon we followed the rest and overtook them ere night, at which tyme the wind turned contrary upon us to south west, so that the day at night being thursday we was come but a litle abone gravesend; wheirupon i advised mr. chiesly that we should hive of[ ] the first boat should come aboard of us to carry us that night to london, which we did, and arrived ther tho late. lay at the black bull in bischopgate street. nixt day took a chamber in new street neir covent garden at halfe a croune the week. went to the court, wher afterwards i fand mr. sandilands, mr. wallace, mr. lauder, c. rutherfurd and a brother of his, mr. john chrichton, who was then with my lord drummond, mr. claude, etc., henry hamilton, who was win in to the kings garde, p. wans, mr. metellan, mr. don, mr. kirkwood, mr. ker my lord yesters man, d. burnet, mr. johnston, etc.; kissed my lord lauderdales, yesters, and the provests hands; saw sir william thomsone, collonel bortwick, etc. mr. smith who was mr. simpsones man came over from holland. [ ] headland, or point. [ ] off, so spelt usually by lauder. having stayed a fourtnight in new street i came to my aunts,[ ] m'ris inglishes, house, wheir having stayed some dayes, i took place in the coach for oxford the last of september, being a monday, at snowhil neir hoburne. payed shillings. oxford is miles from london. saw tyburne, under which layes the body of cromwel, ireton, and some others; saw that post to which they rode that would have any who ware hanged. i saw also the chancellors house,[ ] dunkirke or portugall, directly against s't james, a very magnificent building with a great park adjacent. [ ] i have found no particulars about this lady. [ ] clarendon house, built by lord chancellor hyde, was on the north side of piccadilly, facing st. james's palace. it was called by the populace dunkirk, suggesting that clarendon had got money from the dutch for the sale of dunkirk, and tangier, the dowry of the portuguese princess, catherine of braganza, for his share in her marriage to the king, which was barren. see _pepys's diary_, june . a gibbet was set up before the gate 'and these three words written, three sights to be seen: dunkirke, tangier, and a barren queen.' nixt we came to oxbridge,[ ] a toune miles from london, wheir was their fair of rattles and other toyes for children. their was also a market of horse and of cattell, for the most part come out of wales. miles further is beconsfields, a village wheir we lay all night at king charles his head. the host is a scotsman called hume; was made prisoner at worcester. we was their but[ ] that merchands wife that was going to sie hir child at abinton (wheir is a braue market cross), m'r lo, professor of musick in oxford, and i; the other women ware at the swan. supper and breakfast stood me shillings. [ ] now uxbridge. [ ] 'we was there but,' _i.e._ there were at our inn only. nixt morning being the of october we came to east wickam,[ ] a very pretty toune; then to west wickam, being miles; then to stockam church, long miles; heir we walked doune a steep hil; then came to whately;[ ] nixt to oxford, the whole journey miles. i lodged at the miter, a wery civill house. calling at exeter colledge for mr. ackland, to whom i had a letter from mr. sprage at leide,[ ] i found he was gone unto his oune country of devonshire. [ ] now high wycombe. [ ] now wheatley. [ ] leyden. nixt morning i went and visited the booksellers shops. at last lighted upon on[ ] almost forgainst oriel colledge at the back of christs church ['called him mr. daves'[ ]], who had a most rich and weill furnished shop worth all the rest. their i found the heroe of lorenzo and arrianus, also tyraeus _de apparitioni_.[ ] _et demoniacis_. he had lately sold a lesly. [ ] one, as usual. [ ] interlined. [ ] contracted for _appartionibus_. after diner came mr. lo to me with a young gentleman who stayed at his house. he took me first thorough lincolne, exeter, and jesus colledges, then to their publick schooles, a magnificent building, wheir for all the arts and sciences their is a scool. [illustration] heir also is that library so famous, and undoubtedly the greatest of the world, the vatican excepted, and that but of late since the augmentation it got by that of heidleberg. the forme of it is the rarest thing heir be the incredible multitude of manuscripts never printed which they have gathered togither with a world of paines and expence, and gifted to the university. as their is their the gift of archbischop laud consisting of a multitude (vid. ) of manuscripts in all languages, as weill eastern as western. their be all sir kenelme digbies books, togither with seldens, about which their ware a controversy in law. in his last will he gifted his books to the university, wheiron it was demanded whither cambridge or oxford was meant. oxford carried it first because he was an alumnus of this university; nixt, because sundry tymes in his life tyme he had told some friends that he would leive them to oxford. all the lower are chained; none can have the permission to read till he hath given an oath to the bibliothecarius that first he shall be faithful to the universitie; nixt, that he shall restore what books he receaves and that intier not torn. the papists gave occasion to this who under the prætext of reading maliciously tore out any thing that they judged nervously to conclude against themselfes: otherwise its disadvantageous to strangers who come but for a short tyme and have the curiosity to sie a book. they have a catalogue, not, as others, _ordine alphabetico_, but according to the order they ware gifted in: if it was money left then their be the names of the books bought theirwith. their are the maniest theologicall books of all other, a great many in both law, _corpus glossatum,--tractatus tractatuum_ venetiis , _vasquius_ tomes, etc. of[ ] one of the ends of the library goes up a pair of stairs unto a very fair and spatious gallery whither the students retire to refreshe themselfes with walking after reading. [ ] off, as usual. the walls are all hung with pictures of the most famous men both of their oune country and abroad, as weell moderne as ancient. mr. digby is drawen lik a old philosopher. the roof is al painted alongs with the armes of the university, wheir most artificially and couched up[ ] in sundry faschions the name of him who built the gallery, thomas bodley. i saw a great many pretty medals wheirof they had presses full. their be also j. cæsars portrait brought from rome by a gentleman. [ ] couched up, disposed, laid on (like embroidery). see murray's _new english dict._, s.v. a litle below the library is the anatomy house, not altogither so weill furnished as that of leiden: sundry anatomies of men, women, children, and embryoes. on man hes a great musket shot just in his breast, yet he did not dy of it but afterwards was hanged; a mans skin tanned sewed on straw, seimes like a naked man; the taille of an indian cow, its white, wery long, at least in a dozen of sundry peices; the skines of some hideous serpents and crocodils brought from america and nilus; a mans scull with litle hornes in its front, they ware within the skin while he was alive; another cranium all covered over with fog which they told me was of great use in medicine; sea horses or sharpes[ ] skins; a indian kings croune made of a great sort of straw, deckt all with curious feathers to us (some being naturally red, some grein, etc.) tho not to them--they despise gold because they have it in abundance; a ring intier put in thorow a nooked peice of wood, and we cannot tell whow; a stone as big as my hand, folded, taken out of a mans bladder, another lesse taken out of ones kidneyes. we saw that the crocodile moved only his upper jaw. [ ] sharpe, so written, query sharks. from this we went to a house wheir we drank aromatik, then to new colledge, a great building. in the tyme of the plague the king lodged in the on syde and forrein embassadors on the other. they wer the french for gifting them a poringer worth pound; but it was just at the tyme his master declared war against england so that he went away in a fougue[ ]. went up to their hall, a pretty roome. above the chimly is the bischop that founded it; under him stands other that ware each of this foundation, afterwards bischops; and each of them built a colledge, n, marlan[ ] and lincolne. saw the chappel, the richest of oxford; brave orgues,[ ] excellent pictures, one of the resurrection, done by angelo the italian, just above the altar. [ ] rage. the sentence is obscure. apparently the french ambassador intended to present the college where he was entertained with a piece of plate, when a rupture between the sovereigns occurred. [ ] merton, distinctly marlan in ms. he had written it by the ear. apparently it was pronounced marton. merton was founded before new college. [ ] organs. just back from france, lauder uses the french words _fougue_ and _orgue_. from this we went to christs church, the greatest and richest colledge of them all, founded by henry the 't, or rather cardinal wolsie, who had wast designes had they not bein chookt. their belonged to this colledge by his gift lands thorough all england so that the students ['fellows'][ ] ware as good as lairds. the king took this from them and gave them pensions for it. heir i went in to the chappel with mr. lo, who is their organist, and hard their evening prayers, not unlike the popish: saw the bischop of oxford and vice chancelor (for hyde is chancelor) of the university. [ ] interlined. by the means of that young student mr. lo recommended to me saw their library, considerable for a private one. they have all the counsels in brave gilded tomes. they have a flint stone wery big in the one syde wheirof ye sie your face but it magnifies; a great stone congealed of water, another of wood. from that he led me to their kitchin; wheir ware spits full of meat rosting (sometymes they have when the colledge is full). then he took me up to the dining hall, a large roome with a great many tables all covered with clean napry. heir we stayed a while; then the butler did come, from whom he got a flaggon of beir, some bread, apple tarts and fleck pies,[ ] with which he entertained me wery courteously. then came in a great many students, some calling for on thing and some for another. their are a students in this colledge besydes canons and others. [ ] suet puddings.--murray's _new english dict._ at the back of christs colledge is oriel colledge. its a great building built by king edward the 'd, even when ballioll was built. above the inner gate stands king charles the i. on horseback; then towards the broad street is the university colledge, the oldest of all thesse in oxford, founded by alfred, a saxon king, and long efterwards repaired, or rather erected (for the first buildings be like to fall about ones ears), by percy of northumberland. over forgainst it is all souls, wheir is a pretty chappell with a rare picture of the resurrection. from that to queans colledge, built long ago by on of their queans. whiles they ware a laying the foundation they found a great horne (they know not weill of what beast), which since they have enchassed in silver and propine to strangers to drink out of. their chappell is remarkable for its windows; in them ye have represented all the actions of our saviour from his birth to his aschension. i saw brazennose colledge and marlan[ ] colledge, also balliols colledge, which is not so pittiful and contemptible as many would have it. before the utter gate is a pretty pallisade of tries. within the building is tolerable; in their dining roome be battered[ ] up theses moral, political, and out of all the others sciences. nixt to it be trinity colledge. it hath courtes: the inner is a new building. not far from this are they building the stately theater of cut stone for their comoedyes. [ ] see p. , note . [ ] pasted. nixt day i went to the physick garden not far from marlan colledge. the gardener (a german by nation) gave me their printed catalogue of all the hearbs, which may be about some in all. i have also some verses he gave me made on thesse fellows thats keips centry, as it were, just as ye come in at the garden door; their menacing face is of timber; all the rest with their speir is artificially cut out of bush. they have also swans and such lik curiously cut out of the phileria. i saw the sensitive plant; it shrinked at my touching it, tho it was then excessively cold. saw the tobacco: of the leives dryed they make it as good as that they bring from spain, virginia, martinigo or elsewheir, if they had enough of it, and the entertaining of it ware not to costly; hence the parliament discharges the planting of it. saw african marigolds, the true aloes trie; all the wals cloathed with wery big clusters; tall cypruses, indian figs, etc. the students can enter when they please. on the thursday of october at night went and took my leive of mr. lo. nixt morning having payed my host shillings in all (which made me admir the cheapnesse of the place, fire only being dear since the kings army was their, who cutted all its woods about) about a cloak bad adieu to oxford watered with the lovely thames tho wery litle their; it receives at that place the isis whence thamesis. in the coach was d. willis his cheif man, a pretty physitician himselfe, going in to his master, whom the quean had caused come to london; a apothecary who also sold all kinds of garden seeds, and for that effect had bein at oxford, p. nicoll had oftnen traffiqued with him; a goldsmith's son in the strand and his sister, and an old crabbed gentlewoman, tho she seimed to be of quality. when we walked up the hill at stockam church he showed me a number of pretty hearbs growing by the hedges syde. he confessed to me that tho they had a verie glorious utsyde, yet if we would consider the forme of their teaching and studieing it was werie defective comparatively to the oversea universities. their publick lessons are not much worth: if a student who is immatriculat in some on colledge or other be desirous to be informed in any science, let it be philosophie, medicine or another, then he most apply himselfe to some fellow of that colledge, who teaches him for a salarie; otherwise a student neids never make use of a master but if he please. theologie is the only thing that flourishes their. came back the same way to london the of october, being saturday. nixt day came haddow[ ] and bonnymoon to toune. many a tyme hes he and i wisited litle brittain. we went throw bedlam (i was in it and saw thosse poor peaple), then to moore fields, wheir is a new street wheirin dwells thosse that ware burnt out in the fire. they pay wery dear for their ground and it is but to stand til they rebuild their houses again in the city. then throw long lane wheir is their fripperie; besydes it their is a hospitall for sick persons; then smithfield east and west. i had almost forgot aldergate street, on of the nicest now in london, ye shall ever find mercats their; then we go thorow the moon taverne. to the west of smithfield is snowhill, wheir the coach for oxford is; then ye come to hoburn bridge, a very filthy place, the street is large and long. in it is st. andrews church wheir i went and heard mr. stellingfleet; the coach for york is at the black swan their; above it ye come in to lincolnes innes fields, a brave place weill built round about, much like the place royall at paris. heir lodged my lord middleton, heir is the dukes playhouse, wheir we saw tom sydserfes spanish comedie tarugo'es wiles, or the coffee house,[ ] acted. in the pit they payed p., in our place s. he could not forget himselfe: was very satyricall sneering at the greshamers for their late invention of the transfusion of blood, as also at our covenant, making the witch of geneva to wy[ ] it and la sainte ligue de france togither. [ ] sir george gordon of haddo, - (see _infra_, p. ), afterward chancellor and earl of aberdeen, now returning from studying law abroad. advocate, , lord of session, , president, , chancellor, . [ ] printed in . t.s. was the son of the bishop of galloway. he became conductor or proprietor of a theatre in the canongate, edinburgh, and published the _caledonian mercury_, the first scottish newspaper. [ ] weigh. after some way ye come to covent garden, all which will quickly fall in to my lord of bedford by wertue of an assedation which quicklie is to expire, having let of old the ground on the condition they should build upon it and they brooking the ususfruit for such a space of tyme it should finally returne to him; and this they tell me to be a ordinary contract at london;[ ] then new street, suffolk street, charron crosse, st. martins lane. in its church preaches d. hardins, a pretty man. heir is york house, the new exchange, etc., then the strand and savoye, temple bar within and without the gate, wheir are all their innes of court, their lawyers and many booksellers. then ye come to ludgate hil; then to st. pauls; then to cheapsyde crosse; then in to broad street at the back of the exchange now: their is also litle st. helens and great st. helens, leadinghal; also aldgate, wtin the gate or wtout it; which is either wtin the bars or wtout them called white chappell; out which way we went to hackney, a village some miles of london wheir m'ris inglish hir son edward lives; saw bedlan green by the way and the beggars house. neir algate goes of the minorites leading to tower-hil and the tower, then doun to the hermitage. the custome house is in mark lane. [ ] an early notice of building leases. london is in midlesex; southwark thats above the bridge is in surrey, thats under it is in kent. having stayed til the of october (about which very tyme my mother was safely delivered of walter), hadow and i took our places in the coach for york. their was a squire in westmorland with his lady and hir sister returning home to his oune country, also a atturneys wife who dwelt in the bischoprick of durham in the coach with us. had large discourses of the idlenes and vitiousnese of the citizens wifes at london being wery cocknies. we will not forget what contest we had with some of them at the taking of our places. having left london, came first to hygate, miles, my lord lauderdales house, a village adjoining on the croup of a hill; then to barnet, miles from london; then to hatfield wheir we dined, miles, wheir we saw hatfield house with brave parcks, all belonging to my lord of salisburie. a litle of this is the greatest hy way in england leading to s't albanes. came at night to stesinwich,[ ] miles of london. [ ] stevenage. nixt day, being tuesday, and came to baldoc miles; begleswith[ ] miles; dined their at the croun, wery bad entertainment; afternoon to bugden,[ ] miles further, sad way. that night arrived their my lord rothes, my lord arley,[ ] sir j. strachan, and others going to london. its some or miles from huntington; the country is all couered with willows like to holland. [ ] biggleswade. [ ] now buckden. [ ] arley, probably airlie. nixt day vednesday, , baited at a willage called walsford,[ ] miles of wery bad way. came at night to stamford miles furder; within a mile of the toune we saw on each hand a brave stately house belonging to my lord of exeter, in one of them lived the duc of buckinghame. it stands on a river: whats besouth the bridge is in northamptonshire, benorth in lincolne. its held amongs the greatest tounes of england after london. norwich is the 'd, it hath churches in it: bristol is a great toune to. [ ] watlingsford (blaeuw), now wansford. nixt day, thursday, , leiving postwitham[ ] and grantham on our right hand, we entred unto the most pleasant valley of bever, the best ground for corn and pasturage thats in all england: saw its castle at a distance, seimed to be most artificially fortified; it stands in leister, nottinghame, and lincolneshires. dined at lougbirlington,[ ] miles: a long rabble of a toune indeed. afternoon came to newwark upon trent; had fowll weather with haille. its in nottinghame: its commonly called the line of england, dividing it into halfes south and north (all that live benorth it are called north country men) by its river of trent, which embraces the sea at hull; yet the halfes are not æqual. we saw the kings castle their, tho demolisht in the last civill wars. [ ] postwitham, so written. north witham and south witham are near the route. [ ] longbennington. nixt day, fryday, of november, left toxford[ ] on the clay on our left hand, entred unto sheerwood forest, wheir robin hood of old hanted. was of a incredible extent; now theirs no wood in it; but most excellent hunting: it was good way. baited at barnby in the moore, miles of newwark. as we was heir j. graham my lord middletons man overtook us going post. after diner past scrouby and batry and[ ] came late at night to doncaster, miles further. [ ] tuxford. [ ] scrooby and bawtry. the 't day, being saturday and the 'd of november, it was a brave clinking frost in the morning; we clawed it away past robin hoods well; baited at ferry bridges, arrived at york safely: lay wheir our coach stayed. devoted the nixt being sabath for viewing of the toune; saw that so much talked of minstrell, and truely not undeservedly, for it is a most stupendious, magnificent church as i had sein. duc hamilton was come their then. nixt day, being monday and of november, having bid adieu to our coach companie and mr. thomas paterson who had come doune all the way with us, sir george and i took post for barrowbridges,[ ] miles. arrived about howers, dined on apple tarts and sider: on immediatly for northallerton, miles; arrived ere halfe ; my horse almost jaded: was very unresolved whither to go any further or not; yet on for darneton[ ] (wheir the good spurs are made). we are all weill monted with a good guide: we are not miles of[ ] the toune when it falls pit dark; a most boystrous night both for wind and rain, and for the comble of our misery of the worst way on all the rode; yet out we most it. he led us not the ordinar way but throw the enclosures, breaking doune the hedges for a passage wheir their was none. many a ditch and hedge did we leap, which was strange to sie had we not bein on horses that ware accustomed with it, yea some ware so horrible broad that we forced to leap of and lead over our horses. we was forced to ride close on on another, otherwise we should have losed on another. when we was within miles of darnton we came to a great river called tees, in latin by cambden tesis, which divides yorkshire from the bischoprick of durham (for from the time we came to barnby in the moore til this place we ware ever in yorkshire, which is the greatest in england); heir we lighted and hollowed on the boatman on the other syde to come and boat us and our horses over. if he had not bein their we had bein obliged to ride miles ere we had come to a bridge: over we win, and at last reaches darnton, both wet, weary, and hungrie. [ ] boroughbridge. [ ] darlington. [ ] off, as usual. nixt day, tuesday and of november, on by tymes for durham, miles. my saddle proved so unmeit for the horse back that it turned perpetually with me. at last changed horses with the postillon. came to ferryhill, miles to the south of durham, askes for isabell haswal their, is most kindlie received; comes to durham be ten a cloak, on of the most strong tounes, and that naturally, we saw in all england; then for newcastle, miles. our postillon need of durham the greatest pimp of england. neer newcastle saw thesse pits of coall that carries its name. then to morpeth, miles; which wearied us so sore that we resolved to post no more, but to hire horses home the kelso way; wheirupon the postmaster furnished us horses to carry us to ulars,[ ] miles; but ere we had reached whittinghame throw that most sad and wearisome moore and those griveous rocks and craigs called rumsyde moore we ware so spent that we was able to go no further; sent back our horses and stayed their all night. [ ] wooler. nixt day, being thursday november, got horses from that miserable village to carry us the other miles to ulars [wooler[ ]]. after we was once up the braes we meet with wery good way.[ ] at ulars had much difficulty to find horses for kelso, miles further. at lenth we found, which brought us thither about the evening; crossed the tuede in boate just forgainst the toune, which beyond compare hes the pleasantest situation of ever any toune i yet saw in scotland. their stands the relicks of a magnifick abbasie that hes bein their. lodged at charles pots; fand a sensible decay of service by that a man hes in england. having provided horses to carry us to edinburgh, miles, we parted nixt morning fryday november. [ ] interlined. [ ] i.e. the road was good. saw hard by kelso thesse most pleasant houses that belong to my lord roxborough, the flowers[ ] and the friers. throw muiresh, barren ground we came in sight of lauder, miles of kelso, on the west bray, face of the lider water. over forgainst it stands a pretty house belonging to my lord lauderdale: mile further of excellent way all amongs the mids of hills stands ginglekirk[ ] wheir we dined; then forward our sautry[ ] hils of whilk we discovered edinborough. passing throw fallean[ ] came to the furd within mile of edinborrough, yet we called first at new cranston, sir j. fletchers house; but himselfe was in the north marrieing the lady elsick; his sone james and his daughter ware at ormaston. james as soon as he heard we was their came to the foord to us, stayed with us all night; took us up to cranston with him; wheir was receaved most magnifickly by him and his sister. [ ] now floors. [ ] now channelkirk, still locally pronounced shinglekirk. [ ] soutra. [ ] now fala. parted that day, being saturday and of november , for edinborough, whither by dalkeith i arrived safelie about a cloak in the afternoon amongs my friends, from whom i had bein absent some years and moneths. deo gratias. accompte of my expence at london from september to the of november . in money from freiston received lb. s. from lindsay by a bill, lb., in all lb. s. sterling. for a nights diet and chamber maille in new street , for a suite of cloaths, yards and / at s. yards sargeat, s. and . so much taby. the garniture about the sleives, in garters, shoe strings, etc., lb. s. the making, s. with the other appartenances, in all it stood me some pound s. for laced bands, for a laced gravate, for pair of holland sleives at s the peice, for pair of laced cuffes to them, for silk stockings, for worsted ones, for jesmine gloves, for a fusting wascoat, for whole shirtes, for pair drawers, for pair shoes, for a cloathbag, my oxford woyage and back, my expence that week, for books bought their, my catalogue amounts to, given to mris inglish and hir maid, for my place to york, for my expence thither, for stages post, for hired horses from morpeth to this, for my expense from york home, whither i came saturday november, lent to mr thomas paterson, summa of all is, brought home lb. s. repayed by mr. t. paterson lb. s. which in all makes lb. . petition of mr. john lauder. unto the right honourable the lord president and remanent lords of counsel and session the humble petition of mr. john lauder sheweth, that wheir your petitioner having applied himselfe to the study of the civil law both at home and abroad, and being resolved to emprove the samen and to exerce it as advocat, may it theirfor please your lordships to remit your petitioner to the dean of faculty and advocats for his tryall in the ordinar way in order to the office of ane advocat. and your lordships favourable returne heirto. january . the lords having considered this bill and desyre theirof remits the petitioner to the dean of faculty and advocats to the effect they may take triall of his knowledge of the civill law and make report to the haill lords their anent. john gilmour, i.p.d. remits the supplicant to the private examinators to take tryall of his qualifications and to report. robert sinclair. january . the private examinators having taken tryall of the supplicants qualifications of the civill law finds him sufficiently qualified theirin and remits him to his further tryall. robert dickson, geor. nicolsone. pat. hoome, roder. mackeinzie. james daes. edemborough, january . assignes to the supplicant for the subiect of his publick examination. tit. d. _de collatione bonorum._ robert sinclair. edemborough, february . the body of advocats being met and having heard the supplicant sustain his tryal before them upon the befor-assigned title, did unanimously approve him theirin and recommend him for his lesson to the lords favour. george mackenzie, in absence of d. of f. february . the lords having considered the report above written assignes to the petitioner the day of june nixt (which indeed was the h) to finish his tryall in order to the office of a ordinire advocate, and recommends the petitioner to the dean of faculty for to have ane law assigned to him to that effect. john gilmour, i.p.d. edemborough, . assignes to the supplicant for the subject of his publick lesson. _l. diffamari c. de ingenuis manumissis_. robert sinclaire. i was admitted advocat on the of june . * * * * * [ ] [ ] a page scored out. in august i went home with my sister for glasco. went by the white house, the coudbridge, corstorphin, held up to the right hand, saw gogar on the left, ingleston, boghall, norvells house. came to kirkliston, miles from edemburgh. neir it on this syde of the water is carlaury; a mile furder is the castle of nidry; both it and kirkliston toune belongs to my lord vinton, and newliston on the left hand[ ] then came to lithcow, limnuchum[ ] miles from edenburgh. baited at on chrightones forgainst the palace, which hes bein werie magnificent, is now for the most part ruinous. under it stands the loch, in the midle wheirof is a litle island with tries. in the midst of the court is a most artificiall font of most excellent water. their is ane in the toune: their ... [ ] wes neir the palace. they are a building a tolbuith all of aislaer work. [ ] on margin [vinsbrugh, duntarvy, wrae, monteith], [ ] limnuchum, the latin name. arthur johnston, in his _carmen de limnucho_, quoted at length by sir robert sibbald, 'nobile limnuchum est patio de marmore templum,' etc.-treatises, linlithgow, p. . [ ] about two words obliterated. a mile from this on our left hand we saw kettelston stewart, then wheir the famous city of camelon stood built by cruthne camelon first king of the picts-- years before christ--alongs the river of carron whither the sea also came up, so that yet to this day digging deip they find tackles and anchores and other appartenances of ships. its thought that when the sea gained in holland and the netherlands it retired heir; so that now its not within miles of this place now. vespasian in the reigne of our caratacus, years after christ, took it and sackt it. at last finally ransackt and ruined by kenneth the d in the year of christ . neir to this place stands dunipace with the artificiall monts before the gate called dunnipacis. heir also is that old building called by some arthurs oven, and relicts of the great wall of adrian. but of all this consult buchanan, lib , pag. , , . within a mile of falkirk stands calendar, the residence of the earles of callendar, a place full of pleasure. we lay at falkirk miles beyond linligligow. nixt day on for kilsith, miles furder. saw cumbernauld and that great mosse wheir that fatall battell of kilsith[ ] was fought, slayn on the place. past by the water of bony wheir john scots mother lives. bayted at kilsith, saw the old place which was burned by the englishs, and the new place, then other miles to glascow. passed by calder and a water of the samen name. saw mucdock[ ] at a distance, my lord montrosse his residence. [ ] montrose defeated the covenanters under baillie at kilsyth in . [ ] now mugdock. being arrived at glasco we lighted at my sisters[ ] in the trone gate: then saw old colin at his house in the bridge gate; then saw their merchants hall with its garden in the same street; then the hutchesones brether ther hospitall in the tronegate. the eldest brother was a wrytter. then saw their bridge over clyde, of which a man hes a most fair prospect both up the river and doune the river of all the trough of clyde. [ ] mr. laing mentions that one of lauder's stepsisters was married to campbell of blythswood. nixt day heard sermon in the trone church: fornoon, mr. robert stirling; afternoon, mr. milne. after sermon went to their bromeylaw, wheir is their key for their boat, and a spring of most rare water. nixt day saw their tolbuith, gallowgate, saltmarket, colledge with the priveledges of the university of bononia; their great church, on under another,[ ] with the castle, the bischops residence with the bischops hospitall and the tradesmen their hospitall, both at the head of the toune, which comes running doun from a eminence towards the river, supposing the river to be the edge of this book, in this fashion. [ ] the crypt. [illustration] we went after for the ranfield, short miles from glasco, on the south side of the river. saw on the way govan, renfrew, burgh royal. on the other syde ware parket,[ ] scotts-toune stewart lately married to roysaithes daughter, and the barnes. ranfield stands most pleasantly with abondance of planting betuixt the clyde and the greiff[ ] or carst,[ ] that comes from pasley. [ ] now partick. [ ] now gryfe. [ ] now cart. went up to pasley by the knock: its mile from the ranfield, a most pleasant place with a pretty litle toune. in former tymes it belonged to my lord abercorn. now my lord cochrane hath it, who sold to the toune for merks the right he had of the election of their magistrates, which he sore repents now, for since the toune cares not for him. it hes bein a most magnificent abbaye, much of it ruined now. ye enter into the court by a great pend[ ] most curiously built. the wals of the yard may almost passe for a miracle because of their curious workmanship and extent. the yards are no wayes keipt in order. my lord hes enclosed a wast peice of ground for a park. [ ] arched passage. nixt morning we went for dumbarton, having crossed the river long miles from the ranfield and from glasco. saw on the way rowlan on our right hand, bischopton, brisbane, erskin belonging to hamilton of orbiston, both on the other syde of the river. came throught kirkpatrick, which is the great mercat toune of the hyland kyne; saw castle pottage; then by dunglasse a ruined castle standing on a litle rock in the clyde belonging to sir john colquhon of luz[ ]; then by the craig called dunbuc came to dumbarton toune, wheir meet with walter watsone, provest of dumbritton. stayed at his brothers: went over to the rock, a most impregnable place as any part of the world can show. was so fortunat that major george grant was not their. the gunner went alongs with us and shewed us the cannons, some scotes peices, some english, some french, some flemish, one braze[ ] of pound bal taken up out of that ship of the invincible armado which was cast away on the north of scotland in the . their was also iron peices carrieing pound ball, a peice casten in king james the 't his tyme, carried with him to floudoun, and taken then and keipt ay to charles the i., his tyme. they call them demy canons, some of one lb, some of , some of lb ball, etc. they have excellent springs of water in many places of the rock: their ammunition house is almost on the top of it. of it we saw my lord glencairnes house of residence, also newwark, and under it the bay wheir glasco is building their port glasco. neir to dumbarton stands fulwood belonging to the sempills. the levin comes in to the clyde heir. the provest heir related to me that merrie passage betuixt thomas calderwood and him. its a most debaucht hole. came back that night to the ranfield. [ ] now luss. [ ] brass. nixt day came to glasco. that night our horses were arrested and pressed because of the rumor that ther was a randevouz to be at loudon hill. saw old robert cambell and young robert with their wifes, james cambel, john bell with his wyfe, barbara cambel, colin maclucas, daniel broun, collonel meiren, sergeant lauder. went out and saw blayswoode,[ ] woodsyde and montbodo its house wheir stayes my fathers old landlady. saw his quarry, his corne milnes, and his wack[ ] milnes. if that of monbodo wer once irredimeably his he will have above chalders of wictuall lying their all togither. on the south of the bridge stands the gorbbells wheir is the castle of the gorbels: in it dwels at present sir james turner. [ ] now blythswood. [ ] for wauk. we took horse at the gallogate to go for hamiltoun miles from glascow; saw wackingshaw, kelving water, the castle of bothwell, ruinous, belonging to the marquis of douglas on the clyde. over on the other syde stands the craig of blantyre, my lord blantyres residence: he has another house called cardonald near renfrew. then ye come to bothuel toune, on halfe belonging to the marquis and the other to the duc of hamilton; then ye come to bothuel bridge--six pennies of custome a horseman payes; then a mile from it stands hamilton, first the nether toune, then the upper. many of the gentlemen of cliddesdail was their that day at the duc, as silvertounhil, hages, master of carmichaell, hamilton, torrance, stewart hills, castlemilk, rouchsoles, my lord lee which[ ] standes within mile of lanerk. lanark is from hamilton. went and saw the yards:[ ] great abondance of as good wines,[ ] peaches, apricoats, figs, walnuts, chaistins,[ ] philberts, etc., in it as in any part of france; excellent bon crestien pears, brave palissades of firs, sundry fisch ponds. the wals are built of brick, which conduces much to the ripening of the fruits: their be ackers of land within the yeardes. their's a fair bouling graine before the palace gate. then went to the wood, which is of a wast bounds; much wood of it is felled: their be many great oakes in it yet: rode thorough the lenth of it, it is thought to be miles about. saw great droves of heart and hinde with the young roes and faunes in companies of and togither. [ ] which, _i.e._ lee. sir james lockhart lord lee's house. [ ] yards, enclosed gardens, orchards. [ ] vines. [ ] chestnuts. fr., _châtains_. nixt day on for edenburgh, miles from hamilton. rode crost the clyde at a furd about miles from hamilton, came in to the muire way for glasco: wery ill way. came to the kirk of the shots; then to neidle eye wheir ye go of to bathcat; then to swynish abbey[ ]; then to blaickburne belonging to the laird of binny, miles from edenburgh. baited their, then came to long levinstone a mile furder; then to the pile of levinstone murray: the house [toures][ ] was destroyed by the english. saw on our right hand calder, my lord torphichens residence; then entered unto that moor, drumshorling moore; then came to amont water: rode within a bow shot of clifton hall and within halfe a mile of eleiston; then to gogar stone and gogar toune; then to corstorphin, and so home, being the of august ....[ ] [ ] now swineabbey. [ ] interlined. [ ] nearly half a page blank. one day in a promenade with mr. james pilans past by wright houses, greenhill, mr. (doctor) levinstons, then a litle house belonging to doctor stevinsone; then merchiston; then to the barrowmoore wheir begs famous house is; then to the brig-house which belonged to braid,[ ] was given of by the farlys in an assithment, liferented even now by the ladie braid, payes her merks a year; then up towards greenbank to the buckstone, wheir is the merches of braid with mortinhall and comistone; saw its merches with the new maynes of colinton belonging to mr. harie hay with craiglockart, the pleughlands, and the craighouse (now sir andro dicks, of old a part of the barronie of braid); then saw wheir the english armie lay, also swanston and pentland. then came alongs all the face or brow of the bray of the wester hill, which is the meith between braid and mortonhall, till we came to over libberton, mr. william little. conquised by this mans goodsire, william little, provest of edenburgh, befor k. ja. went in to england: a fyn man and stout: as appeared, °, that his taking a man out of the laird of innerleith his house at innerleith, having set sentries at all the doors, and because they refused to open, tir[ ] a hole in the hous top and fetch him out and laid him in the tolbuith for ryving a bond of borrowed money fra a burges of the toun; which proceidur the secreit counsell then, tho summar, allowed of. °, thair having bein long debats betuen the toun and the logans of restalrig for the passage throw restalrig's lands to leith (the way wheirto then was just by the tower), and restalrig having aither refused to let them pas throw his lands or else would have them to acknowledge him, prov: little being with k. ja. at stirling made a griveous complaint of their insolency; wheirupon he said he cared not tho the highest stone of restalrig ware as lach as the lachest. wheirupon the prov: will ye bid me doe it, sir? wheirupon the k. doe it if ye like. immediatly wtout telling the k. or anie else comes he post to edenburgh and causes cast doune the tour that same night. the k. tyme of supping coming the k. calls for his prov: of edenburght: no body could tell. at last some tells that he suddenly was goon to edenb: this moved the k. i'll wad, sayd he againe, its to cast doun restalrig castle. go with all the speid ye can and forbid it. are anie could come their it was done. k. ja: used to call the huntly the noble man of his kingdome and the provest of edenb the d. [ ] dick of braid. [ ] strip off part of the roof, and so make a hole. to returne. from over liberton saw the byway to st. catharines well, a quarter of a mile from liberton, leswaid, and drodden;[ ] then came to libberton kirk; then came neir to libberton burne, and turned up to blackfurd, wheir we saw braids merches with libberton moore, now arable ground, bought lately by the president.[ ] also wt grange[ ] saw _sacellum sancti marlorati_ semirogues chappell.[ ] that burne that runes throw the brighouse goes by blackfurd to the calsay[ ] and powburne, then to dudiston loch, out of which it runes again by west dudiston milnes and is the thiget burne.[ ] braides burne againe runes by libbertone toune to peppermilne, fra that straight to nidrie by brunstone and its milnes to the sea, a mile west of musleburgh: the magdalen[ ] bridge layes over it their. [ ] anciently dredden, now dryden. [ ] sir john gilmour. [ ] dick of grange. see appendix i., p. , note. [ ] the two names seem to denote the same chapel. st. roque's chapel was on the boroughmuir, half-a-mile west of grange house. see bishop forbes's _kalendar of scottish saints_ s.v., semirookie: 'aug. , . under this corruption we find the popular designation of a chapel dedicated to st. roque, just outside the east gate of dundee.' the other name, distinctly written, looks like a corruption of st. mary of loretto. besides the more celebrated shrine at musselburgh, there is a tradition of a loretto chapel near the lady's wynd. possibly lauder confused it with st. roque's chapel. [ ] causeway, highroad. [ ] so sometimes spelt, more often figgate or fegot. the course of the two streams is incorrectly described. [ ] so called from a chapel to st. mary magdalen. that nunnerie the walls wheirof are standing at the cheyns[ ] was destined most by[ ] burgesses daughters, as also that whilk was in the colledge yaird called _monasterium sanctae mariae in campis_. [ ] cheyns, now sciennes, convent of st. catherine of sienna. [ ] destined by, meaning 'destined for,' hence, 'occupied by.' cheynes holds of the toun: they ware robisons that possest it of old; grange by the cants; craigmillar, prestons, edmistons, of that ilk, now reth,[ ] first of that name being chancellar seaton his servand and carried the purse before him; shirefhal, giffards, then bought by the earl of morton, lord dalkeith, now it belongs to the balcleuch; preistfield (never kirk lands, tho the name would seime to say so), hamilton, tam of the cougates[ ] father; before them in the chopmans; as also in the cants. [ ] in the second son of wauchope of niddrie married the daughter and heiress of raith of edmonston. [ ] thomas hamilton, first earl of haddington, favourite of james vi., who so styled him. went on the of september to musselburgh to sie the mid lothian militia, being a regiment companies (_id est_, lauderdales collonel, sir jo. nicolsons of polton lieutenant collonel, gogars major, mortanhalls, deans, halzeards, calderhalls, sir mark kars[ ] of cockpens, etc.), muster in a rendezvous in the links. saw in going stainehill, a sweit place, the dobies, ware burgesses, now mr. william sharps, keiper of the kings signet, about a mile on the west of mussleburgh water and bridge and mussleburgh on the eist. [ ] apparently a son of the earl of lothian, afterwards a general of the army. on the way to the south stands innerask[ ] with its kirk. hard at the toune stands pinkie, built about the year by alexander seton, erle of dumferling, lord high chancellar of scotland. his lady was maitland, a daughter of the then lord thirlistanes (who had bein king james his secretarie and chancellar), now erles of lauderdale: his name and hirs are in manie places of the house. this erle of dunferline that stayes at london is his sone, hes so morcaged his estate that my lord tueddalle for security of cautionry for him hes tane possession of pinkie, fyvie, dunferline, with whatsomever other thing rests of his estate and is like to bruik it. its a most magnificent, statelie building [it hes but chalder victual belonging to it]:[ ] much cost hes bein wared theirupon. their is a brave building of a well in the court, fine shade of tries that fetches you into it, excellent lar[ge] gallries and dining roumes. he hes bein mighty conceity in pretty mottoes and sayings, wheirof the walls and roofs of all the roumes are filled, stuffed with good moralitie, tho somethat pedantick. see spotiswood of him in _anno_ , page . a most sweit garden, the knot much larger than that at hamilton and in better order. the rest of the yeard nether so great nor in so good order nor so well planted with such varietie as is in hamilton yeards. the knot heir will be foot square, a mighty long grein walk. saw figs at a verie great perfection. above the utter gait as ye enter in to the place their is an inscription in golden letters telling the founder theirof, and assuring them that shall ever attempt to destroy that fabrick by sword, fyre, demolishment, or other wayes that the wery stones and beams ut of the wall shall exclaime against them as destitute of all humanity and common courtesie. plots in the garden, with a summer houses and sundry pondes. [ ] now inveresk. [ ] interlined. saw of[ ] the linkes wheir pinky field was fought on the hill neir fawsyde. heard whow the laird of carberrie then not desiring the battell should be to neir his house had so much influence on the scots armie as to cause them leive the advantadge they had of the high ground and draw doune to the champagne countrey, which was a partiall cause of their rout, as also that the englishes had their ships just at the links, who with their shots of the sea did our forces a great deall of hurt. [ ] _i.e._ off, meaning 'from.' saw walafield belonging to the paipes. east it on the sea syde the salt pans. above them within the land tranent; then prestonpans, wher was b. jossies house; then dauphintoun, once archibald wilkies; then fawsyde, ramsayes, on a hill head; then a mile beyond it elphinston, the clerk registers;[ ] then carberrie, blaires, they ware rigs. [ ] sir archibald primrose. in the coming home saw whithill, easter dudinstone, belonging to sir thomas thomsone. he that first acquired it was an advocat in queen maries tyme, who having bein much on hir party and afraid to be forfault, disponed his whole estate over to a d brother of his, out of whosse hands he nor his posterity (who are living this day in rowen) could never pick it, so that this laird of it is the grandchild of that d brother.[ ] its chalder of wictuallat beir and wheat ever accompted the finest thing about edenburgh. its of great circumference. [ ] i am informed by mr. william baird, author of _annals of duddingston and portobello_, that this story is not authentic. saw brunstone and nidrie. came throw restalrig toune, wheir stands an old chappel, the buriall place of the lo: of balmerinoch: also of old the parish church of south leith, so that the minister of south leith even now is parsone at this kirk, at least denominat so. inchekeith might weill now be called inche scott, since scottistarvet bought it, who had great designes to have made a good fischer toune theirupon. a litle after we went to halton[ ] (the young la:[ ] being at london). went out by gorgie milnes, belonging to one broune; then by sauchton hall; then by belsmilne to stanipmilne, elies, up above which stands reidhall, brands, and colinton, with craiglockhart, wheirin the president, s.j. gilmor, hes intres tho it belong to colinton; then to sauchton belonging to mr. david watsone. on our left hand was langhermistoune, the portioners of it mr. robert deans the advocat and alexander beaton the wryter. on our left hand reidheues who are tailfours, the last of them married a daughter of corstorphin, foster, for this lo:[ ] is lieutenant general bailzies sone, and got it by marrieng the heritrixe. then came forward to upper gogar belonging to on douglas, who was a chamberlan for the earle of morton. kincaid of wariston hes some intrest in it. past gogar water, that comes from halton by dalmahoy and adestoun, and comes down to gogar place. on our left hand saw riccarton craig, curriehill, skene of old now winrahames; wariston, johnstons; killeith,[ ] scot of limphoys, and nearest of all thesse adeston,[ ] bought by a laird of halton, who married on bellenden of broughton, to be a provision to hir children (for she was the lairds d wife), wheiron he sold cringelty neir hayston in tueddal (which belonged of old to the laird of halton), and theirwith purchessed adelstoun and gave it to sir lues lauder, who was the sone procreat betuixt him and that ladie of the house of bruchton. sir lues married a daughter of sir archibald achesons, who was secretarie of scotland, whom i have sein, and who bore him sones, one evan now a preacher, married in england, the other in the kings troup, with some daughters: on of them knowen to have bein to familiar with sir william fleming. adelston now is sold to sir john gibson. then saw dalmahoy house with its toune at some distance on the croup of the hill. [ ] now hatton. [ ] charles maitland, afterward lord halton, and third earl of lauderdale, on whom and his children the estate was settled on his marriage to elizabeth, daughter of richard laudcr of hatton. [ ] _i.e._ the present laird of corstorphine. [ ] now kinleith. [ ] now alderston. on our right hand stands ratho (that belonged to duncan, who being the kings talzeor conqueshed bonytoun), now mr. alexander foules; then ratho toune, the halfe of it belonging to halton, the other halfe to ratho place; then ratho kirk, the parish of many of the gentlemen of this country; then rathobyres, the on halfe wheirof pertaines to james fleming; then northtoun,[ ] a willage or meling[ ] belonging to the laird of halton; then came to halton. their beside the old laird,[ ] the lady[ ] richard,[ ] jo.,[ ] charles and their sister isabell[ ] was jean areskin, balgonies daughter, elphiston, a daughter of calderhals, and mr. william sims eldest daughter. [ ] now norton. [ ] maling, mailing (from 'mail,' rent) either has the ordinary meaning 'farm,' or perhaps a group of cottars' houses, 'maillers' or 'meallers,' who were allowed to build on waste land, and hired themselves out as labourers.--jamieson, _dict_., s.v. [ ] richard lauder, last of hatton. [ ] richard lauder's daughter, wife of charles maitland. [ ] fourth earl. [ ] fifth earl. [ ] afterwards married to lord elphinston. halton, as i saw their, carries the griffin bearing a sword, on the point wheirof is a moors head. the occasion they tell me is that one of the lairds went with a brother of robert the bruce to the holyland and slew many of the sarazens their, wheiron he added that to his coat. the motto is, strike alike. metellans[ ] hes a lion with a star. [ ] maitlands. learned of the old laird that the lairds of calder ware knights of the order of st john of jerusalem, after knights of the rhodes, now of malta, and that by vertue theirof they ware superiors of all the temple lands (which in edenburgh may be discerned yet by having croces on them), as weill in burgh as in landward throwghout scotland. heard him speak of that bond of assurance betuixt the toune of edenburgh and the laird of halton, the like wheirof few in scotland hes of the toune of edenburgh. this laird hes bought in a place called the spittle (_proprie_ the hospitall), just over on the other syde of the water, which never appertained to the laird of halton of before. all the ground about it the laird is taking just now in to be a park. in one of the chambers hings king charles the d, king henry le grand of france, fetcht home by the old laird; the old earle of lauderdale with his ladie, the lady reidhouse, now lady smeton richison, the old laird mr. richard, with some others. this laird hes made a verie regular addition to the old dungeon tower. the garden that lies to the west of the dungeon would have bein better placed to the southe of the house wheir the bouling greine is, tho i confesse that by reason of the precipice of the bray hard at hand it would have bein to narrow. hes its ponds. came back the same way we went. nixt day went for eleiston, miles from edenburgh (halton is ). went by corstorphin, gogar toune and stone; saw gogar place, then ingleston, eistfeild, belonging to james gray, merchand, then halzeards, skein, then newliston, auldliston, toune of kirkliston, castle of nidrie, baruclan, my lord balmerinochs, barnebougall, the clerk registers,[ ] of old the moubrayes, dundas of that ilk, leine,[ ] youngs, craigiehall, bought from my lord kingstone by mr. jo. ferolme, chalder of wictuall for a , merk, who seiking up some monies from some noblemen to pay it with occasioned the making the act of debitor and creditor; then kilpont, the earle of airths, mr. archibald campbell hes , merks on it; then kirkhill, stewarts, conquised by sir lues stewart the advocat; his daughter (a very good woman) is ladie glencairne; then uphall kirk, which is kirkhils parish kirk; then binnie and binnie craigs with wester binnie, which belongeth to mr. alexander dicksone, professor in hebrew. crosed the water of amont at cliftonhall. beyond binnie craigs stands dechmond, hamiltons. [ ] sir archibald primrose, - ; clerk register, ; justice-general, . (see _infra_, p. .) his son archibald was the first earl of rosebery, cr. . [ ] leny. came to eleiston,[ ] over against it stands bonytoun, scots, the laird of halton mr. richards ladie was of that family; also clifton toune, consisting of many mechanicks, especially wobsters, etc. stands in linthgowshire mile from it:[ ] stands most hy and windie in the edge of drumshorling moor. [ ] now illieston. [ ] _i. e_. apparently linlithgow. inquiring, if because of its name eleiston it ever belonged to the eleis's of before. answered, that no: also that the true name of it is not eleiston but hyliston. belonged to the earles of monteith, and was a part of their barronie of kilpont. its some acker of land paying about firlots the acker; hes held at on rentall thesse years. the gentlemen that last had it ware hamiltons, ever catholicks. k. james, because he had no house to bait at when he came to hunt in the moor, gave on of them , merks to build that house, wheirto he added himselfe.[ ] its stronglic built as it had neid, being built in so windy a part. we first enter in to a hall. on our right hand as we enter is a kitchin and a sellar, both wouted.[ ] on the left a fair chamber. then ye go upstairs and ye have a fine high hall, and of everie end a chamber hung both with arras hangings. then in the 'd storie ye have a chamber and a larg loft. on the top of a turret again above ther is a litle chamber wheir their preist stayed when the hamiltons had it, who had divers secret passages to convey himselfe away if pershued. their was marion sandilands, hilderstons daughter, with margaret scot his 'd wyfe; item sir john scot of scotstarvets picture. in the timber of the most part of the windows is cut out the name of the gentleman that had it, with the year of god when it was built, , . mr. jo. eleis hes put up his name and his ladies on the gate. [ ] _i. e_. the proprietor added merks. [ ] vaulted, _voutés_. jo. bonar hes bought a place just on the other syde of the loch of lithgow forgainst the palace, called bonytoun, which he hes changed and called bonarton. reidop, which belonged to on drummond a lord of the sessionis, neir lithgow, my lord lithgow hes bought it: its but a small thing. yea manie of the lords of sessions purchess's at that tyme ware but small, divars of them no chalder of wictuall. neir to binnie i saw riccarton, drummond. came home the same way that we went afield.[ ] [ ] the passage which follows, enclosed within brackets, is scored out. [illustration: janet ramsay. (_first wife of lord fountainhall._)] [i was married january in the trone church at a cloack at night, being thursday, by mr. john patersone. on the d of december was my sone john born about on afternoone, and was baptized on the sonday theirafter, being the th of december, in the grayfriers, by mr. david stirling. on the day of aprill , being about halfe are hower past tuo in the morning, being on friday night and saturdsdayes moring,[ ] was my wife delivered of a daughter, who was baptized on the of april, being sunday, in the by kirk by mr. james lundie, and called jannet. [ ] sic. on the of september , about halfe are hower past in the morning, being sundayes night or mondayes morning, was my wife delivered of a daughter, who was baptized on the or last day of september, being monday, at acloak in the afternoon, in the tolbooth church, by mr. william gairnes, and was called isobell. see thir marked alibi.] about the of aprile i went over to fyfe with my father in law. landed at kinghorne, wheir is an old castle ruinous, once belonging to the lord of glammes, who had also a considerable intres within that toune, but hes non now save the presentation of the minister (who is called mr. gilbert lyon) onlie. walked from that to the links on our foot by the sea syde: saw seafield castle midway who ware moutray to their names. the french in queen maries dayes made use of it for a strenth. then came to innerteill links, wheir be conies. then to the linktoune, divided by the west burne fra innerteill lands, wheir dwell neir families, most of them mechanicks, above sutors masters, wobsters, as many tailzeours: its set out to them by ruides, each ruid payes a shilling of few duetie. saw the westmilne house, the goodmen wheirof ware boswels. the milne bes the toune of kirkcaldie thirled to it: payes some chalders of wictuall. halfe a mile from this is abbotshall church lands, tuise confirmed by the popes: they ware scots, cadets of the laird of balveirie. payed a considerable few duety to the abbots of dumferling, which is now payed to the king. he[ ] bes lately got in the scarres and montholie, chalders of wictuall. theirs a garden, bouling grein, tarraswalk, fruite yard, wild orchard and a most spatious park, with a meadow and a loch, wheir are a great number of picks, manie wild ducks big theirin. neir it lyes the raith, my lord melvills. balveirie is his also, and bogie, bogs eye, on the eye of a boog, veimes.[ ] touch, thomsone, his father was a writer to the signet, some chalders of wictuall; bannochie belongs to boogie: on ayton hes a wodset on it. [ ] his father-in-law, abbotshall. [ ] _i.e._ bogie belonged to a family of wemyss. saw grange, a wery sweit place: was tresaurer of scottland in quein maries dayes, and cunyghameheid was his depute, and his sone again was governour of edenburgh castle and was hanged. slew a frenchmen once at masse. much planting about it. is but chalders of wictuall. saw innerteill. it layes low, belonged to on erskein, was a lord of the session, had a daughter onlie, who married the laird of tarbet, then colinton. malcolm of babedie hes bought it (its chalders of good wictuall): gave for it , lb., and bids[ ] hir liferent. [ ] _i.e._ bides. saw pittedy, stands on the croup of a hill pleasantly but by; ware boswuells. david dewars father was tennent heir above years. its chalders of wictuall. kirkaldie is the best merchant toune in fyfe: it had before the englishes came in sail of ships belonging to it, now it will not have . then is revensbeuch, its my lord sinclairs; then the pathhead or pittintillun, belonging to on watsone in bruntilland; then the dysert, wheir are manie saltpans; the weimes; easter weimes, easter buckhaven, anstruther, craill, fyfenes, st. androis, the elie, belonging to ardrosse. went to balgonie to sie the chancelar,[ ] which is not his, but the earle of levine his children, belonged to the sibbalds who ware great men and of much power. within halfe a mile to it stands balfour, beatons to their name, a cadet of lundy, married the heretrix of balgonie in _anno_ , and tho he changed not his name yet he took the place of his elder brother lundie. [ ] earl of rothes. saw by the way kinglassie, ayton, leslie, wheir a most magnificent house is a building: it is neir the lowmonds, and falkland, and lochlevin, in the castle wheirof was queen marie keipt. about halfe a mile from it is markins,[ ] wheir mr. john ramsay is minister, who is my goodfathers cousin german. neir it stands brunton, most pleasantly: it belongs to one law. their is much moorish ground in our way. [ ] now markinch. their was thrie thries[ ] (as they called them) in fyfe, balveiry scot, ardrosse scot, dischingtoune of late, but scot, and balgonie sibbald: balmuto, bosuel, weimes of that ilk, and rossyth stuart: then lundie of that ilk, durie of that ilk, and colerine, barclay or else craighall, kinninmont. [ ] this seems only to mean that the three trios of lairds hunted, not in couples, but in threes. on the of may we came over from bruntiland. skein in his de v. signi:[ ] _in verbo_ clan macduff, tells whow on william ramsay was earle of fife in king david the 'ds dayes. [ ] _verborum significatione_. saw in the way to bruntilland the sands king alexander the 'd brak his neck on. * * * * * mr. joseph mede,[ ] in one of his letters to doctor tuisse,[ ] speaking anent the manner whow the great continent of america and its circumjacent ilands may probably be supposed to have bein peopled, thinks that the greatest part of that country (especially mexico and peru, who ware found the only civilized people amongs them, having both a state and a church government established among them) was planted by great colonies sent out of the barborous northern nations laying upon the north frozen sea, videlicet, the tartars and others,[ ] who entred america by the straits of auvan, and that the most of them hes gone thether since our saviours coming in the flesh. after which the devil, finding his kingdom ever more and more to decay through the spreading of christianity upon the face of the wholle earth, which before he keipt inchained in black heathinsme, and being much afflicted with the great din and noyse of the gospell which was come to the utmost ends of the then knowen world, so that he was affraid to lose all his footing hear, he by his oracles and responses encouraged thesse barbarians (in this gods ape[ ] who called abram to the land of promise) to desert their native countrie and promised them better habitations in another part (which he might soon do) wheir he might be out of the dread of the gospell and might securly triumph over them as his bond slaves. [ ] mede, joseph, b.d., - . [ ] twisse, wm., d.d., - . [ ] on the margin: 'purchas in his pilgrimage in mexico reports this storie also.' [ ]_ i.e._ imitator. the ground of this conjecture is from some records found in the city of mexico of their kingdome and its foundation, bearing that their ancestors about years ago onlie (who then dwelt far north) ware called out of that countrie by their god which they called witzill putzill, in effect, the devil, to go to a far country (this was to mexico), far more fruitfull and pleasant than their oune, which he should show them, and wheirof he did give them marks and that he should go before them. and that accordingly they sett on for the journey, and that their god went before them in ane ark, and that they had many stations and marches, and that they ware years by the way, and that at last they came to the promised land, and that they know it by the marks their god had given them of it. all this in manifest imitation of god his bringing the children of israel out of egypt. its reported that the state of scotland looking ut for a suitable match for james the d, then king, sent over to the duc of gelderland (who had daughters) some of the nobility and some bischops for the clergy to demand any of the they should judge most sutable for the king. the duc was content on of the bischops [it was the bischop of rosse][ ]--should sie them and feill them all naked to discern theirby which of them was strongest and wholesomest like. his report was in favors of the youngest: his reason was, _est enim bene crurata culata cunnata aptaque ad procreandos nobis generosos principes._[ ] [ ] interlined. [ ] the bishop of dunkeld (not ross) was one of three commissioners sent to choose a bride for the king, first to the court of france. mary of gueldres was an only daughter-tytler, _hist._ iii. . the story is probably apocryphal. but in russia, when the tsars were married, the inspection of the candidates was an established custom and ceremony for two centuries after the marriage of james ii. a french gentleman being inamoured with a damoiselle of lyons, going in to italie to travell she gets notice that he had tane huge conceit of a venetian, and that he was about to marrie hir. she writs a letter in a large sheit wheirin was nothing written but lamasabachthani, withall a false diamond. he receaving it know not what to make of it, went to a jeweller to try the stone, who discovered it to be false tho it had ane excellent luster. after many tossing thoughts he fell upon the knack of it, videlicet, that it was a heiroglyphick diamant faux, and that it behoved to be read thus, tell, false lover, why hast thou forsaken me. * * * * * [ ] [ ] there is here omitted an unpleasant story of a duc de montpensier of a former age, who in ignorance married a lady to whom he was doubly related by the closest ties of consanguinity. the same story will be found in nouvelle of queen margaret of navarre (the scene being laid in avignon), and in horace walpole's play _the mysterious mother_. also an anecdote about the terms of the _tenendas_ clause of a charter said to be in the tower of london, which is given in english, and is too gross to print. for farder demonstrations of the truth of that conspiracy of gouries (which some cals in doubt), besydes what is in spotswood, mr. william walker told that he heard oft from mr. andrew ramsay that the said earle being travelling in italie had a response thus, _dominus de gourie erit rex_. after which he took a strong fancie he would be king, wheiras it was to be reid, _rex erit_, etc. in pershuit wheirof being in on of the universities of germanie and to leive his armes their, in his coat he caused put the kings armes, videlicet, the lyon, with a hand and a dager pointing at the lyons breist, and so gifted them. and when he was returning he wrot to all his freinds and dependents to meit him at muslebrugh, which they did to the number of horse or their abouts, with which he came to edenburgh; and that he might be the more tane notice of, he caused take his lodging in the landmarket,[ ] and came up al the streit with this train, and tho the king was in the abbey yet he passed by without taking notice of him. he was likewayes a great receipter and protector of all the discontented factious persones of that tyme. [ ] now lawnmarket. they say their are blood yet to be sein on the wall of the house in st. johnston, wher he and his brothers ware slain, which cannot be washen away. sir john ramsay being then the kings page killed him (he was a sone of the laird of wyliecleuchs in the merse), and for his valeur and good service was made earle of huldernesse and got a great part of the lordship of dumbar, which was then of the kings annexed patrimonie, but on this accompt in anno ware dissolved by the parliament. thesse lands mr. w. kellie afterwards acquired. in september i waited upon my father to the merse to sie the laird of idingtoun.[ ] lighted at st. germains, so called from are old chappell dedicat to that saint of old standing their. from that went to hadingtoun, saw in the way elvingston, weill planted, but standing in gladsmoore: item, nunland, adderstone, and laurenceland, belonging to doctor hendersone. above hadingtone lyes clerkingtone, cockburne, colstoune, broun, who talk much of their antiquity and pear[ ] they preserve, yester, and leidingtoune: miles of stands the registers house, chesters, wheirin mr. patrick gillespie now dwells. to the eist of hadington stands the abbay, newmilnes, stevinsone, and hermistone, all most pleasant places and weill planted; as also morhame and hailles, past the almous[ ] house within a mile of dumbar. saw on our right hand spot and the bourhouscs, ware happers now muires; saw also fuirstoun belonging to andrew whyte, once keiper of the tolbuith; then saw innerwick toune and church standing at a good distance from the house. saw neutonlies, eistbarnes, thornetounloch, scatteraw, douglas, and colbrandspath: past thesse steip braes called the pies. saw butterdean toune and house acquired by mr. william hay, the clerk, who also bought aberlady, now belonging to sir androw fletcher: then saw rentoun lying in a wild moir: item, blacarstoun of on our right hand also in a wild seat, yet seimed to be reasonably weill busked with planting: item, blaickburne in the moir: then fosterland: then bouncle, preston, and lintlands, belonging to the marquise of douglas and presently the lady stranavers jointer, worth , merks by year: then billie, renton to his name, and then billie, myre; then edencraw, then came to idington, miles from edenbrugh, ware idingtons to their name, hes no evidents of it but since the year . in this same condition are the most of the gentlemen of the merse who ly most obnoxious to englands invasions. [ ] sir john lauder senior's third wife was a daughter of ramsay of idington. [ ] the coalston pear was presented by the warlock of gifford to his daughter, who married broun of coalston, telling her that as long as it was preserved fortune would not desert the family. [ ] alms. saw the maines, a roome lying betuixt chirnesyde tour and idington: ware homes. on patrick mow, sone to the last laird of mow, maried the heritrix of it, and so hes the land. they tell whow the earle of roxbrugh was the cause of the ruine of the said laird of mow. mow being on a tyme with some englishmen took on a match for running upon a dog of my lord roxbrughs head[ ] against their dogs, wheiron addressing himselfe to my lord, he would not quite his dog unless mow would give him a bond to pay him merks incaise he restored him not back the dog haill and sound: which mow, thinking their ware no hazard in it, did. the day being come my lords dog wins the race; but as soon as it was done my lord had a man ther readie to shoot it: who accordingly did so, and fled. then my lord seiking the soume in the bond, and he unwilling to pay it, was at wast charges in defending, and at last succumbed, and so morgaged his estate to adam bell, who after got it. his ladie was a daughter of west nisbets, with whom the young man patrick was brought up. [ ] upon the head of a dog of lord roxburgh's, _i.e._ backing the dog. saw chirnesyde toune standing a mile of idingtoun, belonging to sundry petty heritors, some of them of halfe mark lands. my lord mordington is superior as also patron of the kirk: on lanty is minister their. it will be more then halfe a mile long. at the end of it neir to whitater stands the nynewells (corruptly called the nyneholes), from springs of water besyde it, wheirof on in the fountain is verie great: are homes to their name. saw blanerne, belonging now to douglas of lumbsdean. saw eist nisbet, ware chirnesydes, now belongs to the earle of levins daughter: item, blacader, ware blacaders (of which name tullialen is yet), are now homes who ware a cadet of manderstones. at a greater distance saw manderston, aytoun, wedderburne, polwart, reidbraes, a house of polwerts, crumstaine, sandy spottiswoods; west nisbet, a most sweit place, ware nisbets to their name. saw huttonhall, ware homes to their name, now belongs to hilton, which was a part of suintons lands. saw the toune of hutton belonging to sundry portioners. saw paxtoun and edringtone, a part of basses[ ] lands, and given away to a brother, now belongs to my lord mordington. saw foulden, the bastile, nunlands, ramsay--his grandsire was parson of foulden. saw mordington and nather mordington. saw the bound road[ ] within my lords park. saw on the english syde of tuede ourde the birkes wheir king charles army ly, norame castle and furde; the ladie wheirof inviegled king james the t when he went in to flouden: they have bein leud women ever since. ker of itall got it by marieng the heritrix. went to bervick, wheir they are building ane exchange. in the way is halidoun hill, wheir on of the douglasses was slain; lammerton, in the chappell wherof was king james the d maried on king hendrie the th of englands daughter. their is a great salmond fisching on tueid: for the freedome but of one boat on it they pay lb. ster: per annum. we was at a kettle[ ] on the water syde. my lord mordington had all the magdalene field, but he could not get it peaceably possessed for thesse of berwick, so that he sold it to watsone. holy iland is miles from berwick. my lords father sir james douglas was a sone of the marquis of douglas: he maried the only daughter of the lord oliphant. idington is miles furder in the merse then renton. [ ] lauder of the bass. [ ] probably a road forming the boundary between the liberties of berwick and the county. [ ] 'a social party on tweedside, common during the salmon fishing season.'--ogilvie's _imp. dict_. returned that same way almost and came to auldhamstocks, miles from idington. saw auldcambus, then came to eistbarnes; then for linton bridges; within mile of it saw the land of nyne ware. saw gourlaybank; came and lay at wauchton, who ware moubrayes, and a d sone of my lord hailles marieing them they became hepburnes. quinkerstaines is a peice of old land of theirs. they got also lufnes by marieng the heritrix theirof riccartoun. but my lord hailes rose by forfaulters: of the earle of march, dumbar, of the creichton, and of bothuell, ramsay, the laird of balmayne.[ ] gorgie milne besyde edenburgh did belong to balmayne, but by a gift of nonentrie otterbune of reidhall, who was at that tyme clerk register, he got it. [ ] as to ramsay of balmain being created earl of bothwell by james iii., see p. . saw nixt day furd, whitkirk, craig, hepburn, balgone, semple, leuchie, merjoribanks, sydserfe, achesone, cassilton, tomtallon, both the marquis of douglasses, and the basse, mile within the sea, about a short mile in circumference. saw the may, belongs to barnes cunyghame. saw fentontour, ware haliburtons and wisconts, then purchased by the earle of gourie, now my lord advocats:[ ] saw the heuch-home. [ ] sir john nisbet. nixt day went for hadington: saw ethelstanefield.[ ] in hadington saw my lord lawderdales buriall place, werie magnifiek. the lord yesters got zester by mariage of the only child of my lord giffart. he had beltan by marieng with a cunyghame. [ ] probably athelstaneford. in the coming to edenbrugh saw eister and wester adenstens, that is also their name; then tranent, and neir it windiegoule; then elphinstone; then on the cost syde cockenie, seaton, preston, prestongrange, the pans, landnidrie:[ ] up on the brae are wallyfield, dauphinton, carberrie and fausyde. [ ] now longniddry. master thomas scot of abbotshall in king james the th tyme was justice clerk. vide hopes collections, page , in principio. the lairds of glenbervie are not the oldest douglasses as some say, but a cadet of angus maried the heritrix theirof, they being then melvils verie old in that name, and the powerfullest in all the mearnes. they ware heritable shireffs their, and on of them being a great oppressor of the wholle country, manie complaints were made of him to the king. the king once answering that he cared not tho' they supped him in broth, they presently went and took him to a hill syde which they yet show, put on a ketle and boiled him their, and each of them took a soop out of it. it was in .[ ] [ ] this story is told more fully by sir w. scott in a note to leyden's ballad 'lord soulis,' _border minstrelsy_, vol. ii. p. , ed. . albany was regent in . they tell that amongs the manie universities that are at lovain their is one which of old was institute for poor scollars who had nought wheiron to maintaine themselfs, but that their diet was verie sober, nothing but bread and very small bread. at a tyme on of the students in it having a great stomack, in a rage sayd to his other fellows, if i ware pope of rome i would make the students of this colledge to fare better then they do. he came to be pope, and endowed that colledge with great revenues, so that its the richest now in all lovain. of all the histories we have on record of magicians and sorcerers that seimes to me most strange which is reported of ascletarion by suetonius,[ ] in vita domitiani, in pagina . [ ] _duodecim caesares_, domitian c. . the soothsayer's power of divination was tested by asking what his own fate would be. he said he would very soon be devoured by dogs. domitian desiring to confute such uncanny powers of prediction ordered him to be killed and securely buried. the funeral pyre was knocked down by a storm, and dogs devoured the half-burnt remains. that touch which george tomsone hes wes acquired by his father from the melvines, who are designed lairds of dyserts, who again acquired it in from on touch, so then they have bein of that ilk. fingask, now mcgill, ware dundasses of before. ( ) notes of journeys in scotland, - . [ ] having past over to fyffe about the latter end of august , i went to leslie. saw by the way finglassie and kinglassy and caskieberry, bought by a gennan who came heir about or years ago, and professed medicine: was called shoneir. his grandchild sold it to the chancellor, who hes also bought the barrony of cluny, sometyme belonging to crighton of st. leonards. saw touch, neir markinch. saw balbirny, sometyme sir alex'r clerks, now it pertaines to a tailzeour called balfour. saw balquharge belonging to bogie's unkle: then going for couper, saw[ ] ramsayes forther,[ ] now pitcairnes by a marriage with the heritrix. saw the hy way to falkland, neir which stands corston, whosse name is ramsay: a sone wheirof was sir john ramsay in k. james the ds dayes, and created by him earle of bothwell. he sent to the grammer scool of edr. for a gentleman's sone to wait upon him, and who could writ weill. ware brought him to choise one, wheirof jo. ramsay was the one; the other wrot better, yet the king made choise of john as having more the mean of a gentleman then the other, and made him his cubicular. he gave him the lands of taringzean in air, and karkanders in galloway, gorgie and gorgymilne in louthian, and balmayne in the mernis. without licence from him none could wear a sword within miles of the k.'s palace. he made him also captain of his guards, vide buchanan, pag. and . anent his being earle of bothwel buchanan causes some doubt, because in k. ja. the ds dayes, at pag. , he mentions adam hepburne, earle of bothwell; but i think he is in a mistake, for drummond is formally contrare. the time of his death is controverted: some say he was killed at stirling field with k. ja. the 'd, others (amongs whom is mr. androw ramsay in his poems) at flouden with ja. the 't. whoever on ja. the 'ds death the title of honor conferred upon him was retracted; but he was not legally forfault nather in parliament nor in a justice court, so that the familie of balmayne might the more easily be restored againe to that honor. he was the first in scotland that ever got a patent of nobility. buchanan throw the wholle tract of his history makes it his work to speak ill of all thosse who ware the king's favorites for the tyme. he sets doune all their vices in folio, but conceals the vertue by which it most be presumed they rose, and by which they did keip themselfes on foot. the tyme was their ware landed gentlemen of the name of ramsay in fyffe. some say corston was a cadet of dalhousie and some of auchterhouse, of which family i have heard it contended the famous alex'r ramsay in king david's tyme (buchanan, page ) was, and not of dalhousie; as also the ramsay that was with wallace. of dalhousie ramsay, sy page . skein, in the word clan-mcduff, tells of w'm ramsay e. of fyffe, in k. davids time. its thought auchterhouse is elder then dalhousie; but that the most floorishing family is most ready to arrogat to it selfe as being the oldest house. sir jo. ramsay that killed gowry was a sone of wiliecleuches in the mers, and got estbarnes, and was made e. of huldernes. he was first made vicount of hadingtoun. [ ] ms. k. [ ] it may be that the name of the property is omitted by mistake. [ ] 'formerly.' we saw also rossie ...[ ] and its loch, which seemes to be very large; saw ramorney, heriot; saw scotstarvet, formerly inglistarvet, on the croup of a hill; besyde it is the struther. then came to couper by that way wheir the race is run; then came to scotscraig-a part of it holds of the see of st. androis and some of the e. of mar--my lord st. androis big house, miles from couper and from st. androis, and a mile from the north ferry. it belonged, as also the kirkton within a mile theirof, to george lord ramsay, father to this e. of dalhousie, and was sold by him to s.[ ] j. buchanan, and abbotshall conquestit[ ] in lieu theirof. on the windows of the house of scotscraig are the initiall letters of sir jo. buchanan and dame margaret hartsyde. arthur erskin got it from them, whosse creditors sold it to the bischop, and got but pence for their pounds of what was owing them. [ ] two words torn off. [ ] sir. [ ] 'acquired.' in the returning home to the linkton, we saw miles from the craig brackmont and brackmont milne; then forret, then moonzie, as also kinneuchar:[ ] item, dairsie, of old leirmonts, now morisones, with bischop spotswoods chappell he can see build their.[ ] on the same water stand kemnock[ ] (theirs another in fyffe called cummock, who is morton to his name), ware sheveses, the successors of wm. sheves, archbischop of st. androis, who outed grahame, kennedie's successor, and ingratiated himselfe with the nobility because of his skill in astrology; they are now mcgills; rumgaye, also migill; and blebo, now beaton. saw craigball, of old kinninmonts, now hopes, as also cires. came at last to kennoway, belonging to the laird of balfour, and holden by him waird of the chancelor rothes: its miles fra scotscraig. then came to dysert moor, wheir we saw the coal pits burning, which will ever burne so long as it hes any waste, but will die when it comes to the maine coall for want of air. in dysert toun, hard by the church, which is a very old one, is a great cave which they call the hermitage, and i imagine the toune hes bein called desertum from it, yea, the most of the houses of the toun holds of it, and the parson of dysert is designed rector rectoriae de dysert. then came to revenscraig (alias ruthvenscraig, of which name they seem to have bein of old), the lord sinclars dwelling, and so to the links, which is miles from kennoway, and so from the bischops house. scotscraig was no old heritage to the lord ramsay, but was acquired lately from dury of that ilk by him. balmayne had once gorgie and gorgiemilne, but otterburne of reidhall, by a gift of non-entry, evicted it from them. see of the e. of bothwell and house of balmaine largely alibi. [ ] so pronounced, now kilconquhar. [ ] this seems obscure, though distinctly written. it may mean, 'ye can see built there.' [ ] now kemback. the bells wrongs themselfes in wearing bells in their armes, for certainly ther name is from france, in which language it signifies fair and bueatifull, hence it was the surname of one of their kings, vid. philip le bell, yea, in the old latine bellum was that same with _pulchrum_; and war was called _bellum, ironice, quasi minime bellum, id est, minime pulcrum_. my lord twedale's predecessors have acquired all their fortune by marriages, so that all the original writs he hes in hes charter kist are only contracts of marriage. he was a cadet of erroll, and the heritrix he married with was one macfud, and by her he got his land in twedall; then he married one of the aires portioners of the lord frazer, and got some lands in the north with hir; then got yester and many other lands with the only daughter of the lord giffart (tho my lord lauderdale sayes he can find by no record wheir ever he was a lord). he got also beltane by marieng the heritrix theirof, called cunyghame. and now in this age he hes as much expectation to raise that way as ever. by his lady he hes a claime to the estate of baccleuch, failzeing of aires of this present dutches hir body, tho the king hes somewhat inverted the straight succession heir. by his eldest sone he hes ane eye to my lord lauderdale's estate, providing he play his game weill, and is in hopes of getting the estate of erroll entailled upon his 'd sone. in the beginning of august, having gone to eist louthian, saw langnidrie; then a mile from it reidhouse, the one was a lord of the session and tom of the cowgate's brother; then ballincreiff, belonging to my lord elibank; then congilton, and on the brae above ethalstanefoord, byres, from which my lord hadingtone's eldest sone takes his title. my lord madertie's stile is truly mater dei, from some cloyster so named in the tyme of poperie: he should be induced to take some other denomination, this seeming to[ ] blasphemous like. [ ] too. * * * * * on the of october having had occasion to go to auldcambus with the provest, we went the first night to waughton. saw by the way preston, prestongrange, seaton, st. germains, langnidrie, then ballincreiff, then reidhouse, then dreme, and above it byres, then congilton, and above it athelstanefoord and westfortoun, and on the other hand sydeserfe. the next day we parted for the merse: saw furd, tunyghame, westbarnes, lochend, broxmouth, broxburne, newtonlies, eistbarnes, spot, fuirston, bourhouses, innerweik toun, kirk and place, scarteraw, thorntoun loch, dunglas, cockburnes path, then past the said path and came to aulcambus path, corruptly called the pies. the provost hes a barrony their miles long, and in the narrowest place at the leist a mile broad, which if it lay neir edenborrough, we was counting would afford neir , mks. of rent per annum. he hes a great peice of coldinghame moir in property, and he hes it all in commonty. his neibhours be colbrandspeth, renton, butterdean, and the laird of lumsdean, now douglas. the lo. renton dealt to have had the gift of the wholle moir from the king, and said it was only rig lenth of land. i imagine the first possessors of that place ware rentons to ther name, then they ware forrestor, then craw, whom the home cheated out of it by marieng the ladie. in the right of the fosters he laid claime to the foster-corne to be payed to him by all the vassals and fewars of the abbacy, now the lordship of coldinghame, as being come in place of thesse who had a gift frae the prior and convent of coldinghame to be forrester to all the woods and shaws growing within the lands holden of the said abbacy, to preserve and hayne the same; and for his paynes was to have a threiv of straw of each husband-land yeirly with some other dueties, and the justice clerk thought to have gotten the fewars decerned for more then years that it was owing, but the los. restricted him to years preceiding his summons, finding all the years above prescryved. and for the dueties due to him on that accompt furth of the barrony of auldcammas he got the property of a roume lying in the barrony called fosterland, and when waughton cutted his wood of penmansheills, which is also a part of the barrony, renton alledged that the boughs and bark of the tries within the lo.ship was his by forsaid gift, and the heritor had nothing but the stock of the tries. they agried the matter betwen them. tho he be most exact in lifting his fies, yet he does nothing that's incumbent to the office of forrester. on sunday we went to coldinghame kirk, miles from the smith's house at haychester. the kirk hes bein a great fabrick. its said to have bein built by k. edgar, _anno_ . their was their a great abbacy. we saw the promontory so much taken notice of by the seamen called st. abbes head (sta. ebba); over forgt[ ] it layes coldinghame law, home to his name. saw the milne about which my lord home (who is the lo. of erection now) and renton are contending. saw at miles distance haymouth,[ ] and above it gunsgrein, then ayton, all standing on the water of ei. saw west reston, home, eist reston, craw, and henchcheid, craw; of which name their was a nest in this place, but the earle of dumbar almost extinguished them, and now his owne memory is extinct and gone: let men then beware of oppression. coldinghame stands pleasant, and verifies the byword that the kirkmen choised ever the warmest nests. mr. andro ballantyne, brother to the sometyme lo. newhall, is heir minister. auldcambus is in cockburnspath parish. it hes a ruinous chappell standing in it dedicat to ste. helene, who was mother to constantine the great, and found out the holy croce at golgotha. thrie mile from auldcambus stands monynet, and miles from it againe stands gammelisheills in lammermuire. blaikerston stands likewayes their about, as also thorniedykes, now broun, of old french. after some dayes stay at auldcambus we came to dumbar. nixt day out of dumbar we came to northbervick by belhaven, tinynghame, auldham, scougall, tomtallon, cassilton. from northberwick we went to archerfield (so called because of the excellent links their fit for shooting at rovers), my lo. advocat's[ ] dwelling. saw by the way dirleton, with its castle, ruined by the english becaus it held out. then from that came to saltcoats, leidingtone, to their name; then to lufnes, of old biccarton; then waughtons, now durhame; then to abirlady toune and place, once mr. wm. scot's, now sir androw fletcher's. theirs a great bay heir. then saw gosford, then cockeny, the pans, wester pans, wheir jo. jousie hes his house. [ ] for 'forgainst,' 'opposite. [ ] now eyemouth. [ ] sir john nisbet of dirleton. naper is a french name and runs in it n'a pair, he hath not a peer. the giffards of shirefhall, they say, ware of old shirefs of louthian, and from that their house got its denomination. tho some alledge their was in old tymes a lord giffard, and that it ended with ane heritrix married in the house of yester: yet my lord duke of lauderdale sayes he hes bein at very much pains to find if it was so, and he could never find any thing to instruct it. * * * * * the wrichtshouses near edenburgh, they say, was denominat from this, that in king james the ds dayes the ground about all being a forrest (lochia sylva is derived from lochs, _insidioe_, in the greek, _quia insidiantibus capta est sylva_. wossius[ ] partit. orator, p. ), and wheirin their was many robbries and murders committed. k. ja. gave order to cut it doune. the wrichts that ware appointed for this work had their huts and lodges whither they resorted for their dyet and on other accompts put up in the very individuall place wheir the house and place of the wrightshouses is now situat, and so gave that denomination to the ground theirafter. [ ] vossius, gerard. johannes, dutch philologist, - , author of _de quatuor artibus popularibus_, etc. ( ) changes and alterations and remarkable emergents of and in the session - .[ ] [ ] ms. h. on the of june was i admitted advocat. at this tyme died my lord carden, and gosfurd succeided. in the november theirafter died mr. robert burnet, advocat. in may died mr. laurence oliphant, advocat. in july died william lylle, advocat. in august died william douglas of kirknes, who the session before had given in his trialls in order to his admission to be a advocat. in september died mr. alexander osuald, advocat. on the day of september was i chosen conjunct assessor with sir george lockart to the good toune. its at large booked on the of may . on the nd of october also ware we chosen for assessors to the wholle borrows in their convention. on the last of october died mr. laurence scot of bevely, one of the clerks of session, and that same night alexander monroe, comisar of stirling, was provided theirto. on the of march died the lord kinglassie, to whosse place was provyded the laird of haltoun. in april died john scot, keiper of the minut book, and his place was continued with his sone francis. in may died john kello, on of the under clerks, to whom succeided (after robert hamilton had officiat as under clerk the summer session that followed, and mr. thomas hay the following sessions till january ) james hamilton, wryter. on the of july mr. thomas nicolsone, advocat, died frenetick. in _anno_ sir james keith, laird of caddome, having threatned mr. david falconer, advocat, ane ill turne, and being complained upon, and in his vindication reflecting upon my lord halkerton, he was committed to the tolbuith and fined. that same year, mr. david thoires having miscaried in a supplication given in by him to the lords in behalfe of a client against doctor hay, bearing they were minded to satisfy the doctors unsatiable covetousnesse to the oppression of the widow and the fatherles, he was sent to prison, fyned, and craved them humbly pardon. in _anno_ , mr. alexander spotswood, plaiding in the oriminall court for wedderburne, and mr. patrick home, being his antagonist and growing hot, called alexander a knave, who replied, i can sooner prove you and your father knaves, who theirupon was imprisoned; but at last, upon intercession of freinds, was set at libertie. the justice clerk[ ] was verie inexorable in the particular. [ ] lord renton. in june , douglas of kelheid, younger, affronted hew wallace, writer to the signet, in his oune house; which the faculty, apprehending themselfes concerned in, at last caused kelheid, in presence of them all, crave hew and all the faculty pardon for his offence, and confesse they did him a great courtesie in accepting that for satisfaction. on the end of january , sir john gilmour, by reason of his infirmity, having dimitted his place of being president, but strongly having recommended gosfoord to be his successor, it was offered to sir john nisbet, king's advocat (whosse place if he had embraced it was thought sir robert sinclair would have got), who faintly refusing, thinking theirby to have bein more woed, he was taken at his word, and our jock of bread scotland[ ] would take none of their advices, but would take a way of his oune, and so did make choise of my lord stair, who was looking litle for it, and who truely came in betuixt tuo, and was so unacceptable to the former president that its thought he would not have dimitted had he dreamed the guise should have gone so; and the pitching on him was truely _in odium tertii_ to keip of sir robert sinclar, whosse journey to scotland under the pretence of coming to sie his new maried ladie suffered strange constructions at court, and lauderdale conjectured it was only to give my lord tueddale notice of some things that was then doing to his prejudice; and its beleived he would not have bein the coy duck to the rest of the advocats for their obtempering to the act of regulations[ l] had he forsein that they would have hudibrased[ ] him in the manner they did; hence we said give us all assurance to be kings advocat and we shall take it with the first; and the lords, when he was plaiding before them in a particular, entreated him to come within the bar and put on his hat, since it was but to make him advocat with or days antidate. he took also with it,[ ] and did not deny it when he was posed on it. [ ] jock of bread (broad) scotland, lauderdale. [ ] the advocates objected to an article fixing their fees in the regulations for the court of session, drawn up by a commission and ratified by the king. sinclair, dean of faculty, expecting preferment, instead of championing the bar, was the first to swear to the regulations. the advocates withdrew from practice for two months, and never forgave the dean. see p. . [ ] a participle coined on the same principle as the modern 'boycotted.' the point of the comparison with the hero of butler's satire is not obvious. it seems to mean simply 'made a fool of.' [ ] took with it, _i. e_. acknowledged it. the expression is still common in the north-east of scotland. in the beginning of may this year died mr. james wemes, advocat, brother to the laird of lathoker. on the of june was sir thomas wallace receaved ane ordinar lord in the place vacand throw the promotion of my lord stair to be president. on the of july died sir john home of renton, justice clerk. he was indeid advanced by lauderdale, and for his sake componed the more easily with sir robert murray;[ ] yet lauderdale his kindnes relented much on this occasion. in _anno_ , being minded to bring in my lord tueddale to be chancelor, st. androis entrefaired. glasgow, thinking he should have a hand in it as weill as his brother the primate, he enters in termes with my lord renton. its commoned[ ] that sir alex'r may marry the archbischop's daughter, who was afterward ladie elphinstone, and that he at london may propose renton to be chancelor. my lord lauderdale was hudgely dissatisfied with that, yet having calmed, he told him renton had not the fortune able to bear out the rank of a chancelor. burnet replied, renton had a better fortune then ever chancelor hay[ ] had. lauderdale could never be pleased with him therafter for offering to aspire so hy. he was also at another disadvantage, my lord hume offered to compromit the difference betuen them to my lord lauderdale. renton shifted it. he was a most peremptor man to his inferiors or æqualls, but a slavish fearer of any whom he supposed to be great at court, on whom he most obsequiously fauned. [ ] murray was his predecessor. apparently there was a bargain for his retirement. [ ] agreed. [ ] sir george hay of nethercliff, lord of session, chancellor, - , lord kinnoul. in the end of july, vid. the day theirof, mr. alexander suinton, one of the under clerks of session, dimitted his place, and was admitted ane advocat _per saltum_ upon a bill. adam chrystie, reader of the minut book, succeided instantly in his place of clerk. that same day died mr. archibald campbell, advocat, sone to the shireff of argile. about the last of july came collonell lockhart from london, and brought doune a patent with him in favors of his father lee to be justice clerk in place of renton: he being an old man, and not supposed he can enjoy it long, its talked it is for the behoof of some on or other of his children, but especially the collonells selfe. this was our donna olimpias[ ] doing. [ ] duchess of lauderdale. on the day of august died sir john gilmor, late president, in his house of craigmiller, and was buried the day theirof in liberton kirk. in the beginning of september died my lord bellenden, sometime thesaurer depute at london. on the of october died alexander,[ ] lord halkerton, at his oune house, of the age of . he entered to his place in session by simony, or rather _committendo crimen ambitus_, for he payed to my lord balmanno merks (a great soume at that tyme when their salaries ware small), to dimit in his favors, and by my lord traquaires moyen, then threasurer whosse creature he was, he got the dimission to be accepted by his majesty. this was about the . i shall not say of him, as was said of pope hildebrand _alias_ gregory the th, _intravit ut vulpes, regnavit ut leo, mortuus est ut canis_. only this i shall say, wheir places of justice are bought, whow can it be otherwayes but justice will be sold. the family is said to be pretty old, and both their name and stile to be taken from the charge they had at the tyme our kings of scotland resided in the mernes, whosse falconers they ware, and their village was hence called the haukerstoune. they say my lord arbuthnet was at that tyme king's porter, and that he hes a peice of land yet designed porterstoune; and that some other their was landresse, and so had a village called waschingtoune. [ ] falconer. on the of october died mr. william douglas, advocat, or rather the poet, since in that he most excelled. in the end of the preceiding summer session adam cunyghame, sone in law to james wallace, maisser, was received conjunctly to the office of maisserie with the said james, conforme to ane gift of the said place to them both conjunctly and to the longest liver of them tua. arthur forbes, having some clame upon the estate of salton, and pershuing the laird of philorth, now lord salton, he was very rigorously and partially handled by my lord newbayth,[ ] who heard the cause. it being againe enrolled in the beginning of november, and my lord newbayth falling to be ordinar in the utter house, arthur, out of a just resentiment of the past wrong and fear of his future carriage, come to my lords chamber and boasted (as my lord newbayth sayes) in thir words, if you call that action of philorth against me i vow to god i'le sie the best blood in your body. newbayth having complained, and arthur being theiron incarcerat and examined, denied he spoke any such words, and declared he only said, my lord, if you continue to do me wrong (as you have done already, as appears because the lords redrest me) i'le have the sentiment of the haill lords on it; and if that be denied, i'le complain to the king. after he had lyen some or dayes in prison he was set at freedome, having first acknowledged a wrong and craved my lord newbayth pardon in presence of the haill lords and advocats on the of november. before he did it the president had a short discourse whow the gentlemans carriage had bein modest thitherto, and my lord newbayth was earnest intercessor for him, and theirfor they resolved not to make him the first exemple; but they assured all, of whatsoever rank or quality they be, that they will not tolerat any to expostulat with them or to give them hard or sharp words in their oune chambers or any wheir, and that they will not suffer their authority, which they hold of his majesty, and to whom they are answerable if they malverse, to be convelled,[ ] but what sanctions their are already to that purpose they will endevor to sie them peremptorly keipt and execute. vide act , parliament ; act , parliament ; act , parliament ; act , parliament ; and this is consonant to the common law by which the killing of one of the kings great consistory is declared treason, and if so then the menacing of them must be a haynous crime. vide l. , c. ad . juliam majestatis: item clarum[ ] par. læsæ maj. num. , item perezium[ ] ad t. c. de l. , majest. num. . [ ] sir john baird of newbyth, still pronounced newbayth. [ ] torn to pieces. [ ] clarus, ant. sylv., _commentarius ad leges_, etc. paris, . [ ] perez, antonio, spanish jurist, - . on the of november , mr. william bailzie, advocat, gave in a complaint on j. watson of lammyletham for having abused him, and called him a base rascall and threatning to draw on him. my lord newbayth being appointed to examine the witnesses, and having reported the lords, called him and mr. william in alone, rebuked him, and commanded him to cary him selfe more soberly in tyme coming. on the of november , sir androw ramsay of abbotshall, lord provest of edinburgh for the 't year altogither, was received ane ordinar lord of the session upon his majestys letter to that effect, in the place vaicand throw the deceas of alexander lord halkerton, who possest that place of before. i find in the records of sederunt about the year and afterward on sir william hamilton[ ] of sanquhar hamilton a lord and provest of edinburgh both at once. i find also that chancelor seyton[ ] for some years that he was president fyvie and some years that he was chancelor (for he was years altogither provest) was also provest of edinburgh; but that was at a tyme when the senators of the colledge of justice grasped at the haill power of the toune upon their delinquency and uproar of the of december , for he entred at that tyme when the toune was at their feet, and when they had the approbation and reprobation of the toune their yearly election, but whow soon the toune begane to recover strenth and the memory of that foull slip waxed old they hoised him out; and for fear of the like inconveniency, and to bolt the door theirafter, they procured ane act of parliament _in anno_ (vid. the 't act), declaring that no man shall in tyme coming be capable of provestrie or magistracy but merchants and actuall traffiquers duelling within burgh. its true sir john hay (who was at first toun clerk of edinburgh) when he was clerk register and a lord of the session, he was made provest of edinburgh, but it was not put upon him out of any favor, but was done by traquaire, then tresaurer, of designe to break him: so that none of thesse instances quadrat with our case; heir a merchant, one who entred _cum bona gratia_, and who hes maintained himselfe by his oune parts and moyen in that office by the space of years altogether, on who toped with the colledge of justice for the precedency and carried it from them, and who feared not to make open war with the greatest of them; he as the only single instance is made a lord of the session.[ ] [ ] lord of session (sanquhar), - ; provost, . [ ] alexander seton, extraordinary lord of session, , ordinary, , president, , chancellor, - , under the successive titles of prior of pluscardine, lord urquhart, lord fyvie, and earl of dunfermline. [ ] see appendix iii. on the of december , richard maitland of pitreichy was received ane ordinar lord in the place vaicand throw the advancement of my lord lee to be justice clerk upon his majesties letters to that purpose. on the of january died sir john scougall of whytkirk, and was buried in the grayfriers on the day of january theirafter in great pomp, his goune being carried before the herse. on the of march was mr. robert preston of that ilk installed in his place in obedience to his majesties letter direct to the lords to that effect. on the of february died john ramsay, keiper of the register of hornings and inhibitions, and on george robertsone was admitted in his place by my lord register. about the end of march, this same year, died mr. alexander hamilton, justice clerk depute, to whosse place on mr. robert martin was received by my lord lee. (_vide infra._) about the of may died charles, earle of dumfermeling, lord privy seall, and ane extraordinar lord. its reported that mr. martin hes payed saltly for his place, vid. pound english money to the justice clerk, merks scots to mr. william cheisley as agenter, and merks to the widow. about the of may this yeir died mr. john morray, advocat. upon the of june , sir robert sinclair fell unto a lamentable pramunire in this manner. some merchants in glasgow being quarrelled by the manadgers of the royall fisching for exporting herrings, that being their priviledge, their is a bill drawen up for them by sir robert, and given in to the lords of secret counsell, wheirin, among other things, he had this expression, that the petitioners ware frie natives, members of a royall borrow, whosse priviledges ought not lightly to be reversed, else malcontents would thairon take occasion of grudge, and of sowing fears and jealousies betuixt his majestie and his people. at the hearing of which my lord commissioner,[ ] guessing the author, began to baule and foame, and scrued up the cryme to such a height as that it deserved emprisonment, deprivation, and a most severe reprimande. at last the counsell agried in a more moderat censure, that he should with close doors (tho my lord commissioner would have had it publick) acknowledge his offence upon his knees before the wholle lords, and recant and disclame the forsaid expression as seditious and not becoming a subject: and theiron, as its said, ane act was made, that no petition should be presented heirafter but subscryved ather by the party or the advocat. [ ] lauderdale. theirs no expression so innocent wheirupon malice will not fasten its teeth; and truly their hes bein many expressions by far harsher then this escaped the pens of advocats, and which hes never bein noticed. and yet i think its _justo dei judicio_ casten in sir roberts lap for his so dishonourable complying, yea, betraying the priviledges of the advocats, and breaking the bond of unity amongs them, and embracing first that brat of the regulations. the excuse that he made for so over shoting him selfe was most dull and pittifull, vid. that they had come to him just after he had dined, and he had drawen it then, and so was hasted. on the july , in the parliament, sir colin campbell was reproved for disorderly tabling of the summer session:[ ] the circumstances see _alibi_. so the commissioner seimed in a manner set to afront the advocats. [ ] the proposal to abolish the summer session of the court and add a month to the winter was made by the commissioner in his speech, and argued before him in the exchequer chamber, where he decided against it. the account of the matter given by mackenzie (_memoirs_, _sqq._) is curious and interesting. in favour of the change it was argued that 'before men could settle at home after the winter session, they were called again to the summer session, so that their projects and designs were interrupted and ruined, and the months of june and july, which were the only pleasant months, and the only months wherein gardens and land could be improved, were spent in the most unwholsome and unpleasant town of scotland [edinburgh].' sir c. campbell tried to revive the question in plain parliament, but the commissioner vetoed it. in november died mr. andrew beaton, advocat, and brother to the laird of balfour. on the d of november , my lord newbayth being challenged for passing a suspension of a decreite absolvitor given by the admirall, he denied it was his subscription, and at last his servant, jeremiah spence, acknowledged he had forged the same, for which he got a guiny[ ] for procuring, as the parties thought, his masters subscription therto; wheirupon, being imprisoned, the lords, on the of november, having called for him to their presence, they did declare him infamous and uncapable of any charge or imployment about the session, and seing he had judicially confest it, they remitted him to the kings officers for his furder triall. its thought this was not the first of many forgeries he hes committed, so that his master lay under very much obloquy and reproach, which hes bein greatly occasioned throw his default, only it cannot be denied that my lord gave to much ear to the mans recommendations, yea gave very grosse insinuations of his contentment and favor when his man got money, so that it was confidently affirmed that his man and he shared the profit that accrued from the saterdayes roll, the syde bar, etc., amongs them; and it is now judged the liklier because my lord concernes himselfe exceidingly to bring his man of only with a sweip of a tods taill, wheiras in generosity he should be his main prosecuter. [ ] guinea. see introduction, money. in the beginning of november died william, earle of dalhousie, being a very old man, wheiron my lord halton, thresurer depute, was made shireff principall of edenboroughshire during his lifetyme in place of the said earle; and mr. alexander suinton, advocat, was made his depute and mr. laurence charteris. about the same tyme, mr. john stewart of ketleston, on of the admirall deputes, died, and walter pringle, advocat, by the mediation of sir charles bickerstaffe, the other depute, succeided in his place, [and in november , mr. patrick lyon was nominat in place of w. pringle, deprived].[ ] [ ] interlined. in the same moneth of november the earle of atholl was made lord privy seall in place of the earle of dumfermeling, who died in the may before. [as also the earle of kincardin was made justice generall upon the dimission of the earle of atholl. this held not.][ ] [ ] the two lines in brackets are scored through. see p. . in england, the great seall at the same tyme was taken from sir orlando bridgeman, and the earle of shaftesbury, formerly lord ashley couper, is made hy chancelor of england. sir john duncombe is made under threasurer, in place of ashley couper. the lord clifford, lately but sir thomas clifford, is exalted to be great treasaurer of england. [he is the [ ] thesaurer since the death of the earle of southhampton],[ ] and the commissioners for the threasurie are suppressed, and its expected that they, as the _primum mobile_, will draw us as ane inferior orbe rolling within theirs after them. the lord mainart, brother in law to the duck of lauderdale, is made thesaurer of the kings house. sir robert howard, commonly called sir positive, is made secretary to the treasurer. the duck of monmouth is made lord cheiff justice of all the forrests in england benorth the trent. my lord lauderdale hes undoubtedly had a great hand in this extraordinary revolution; for they are on the caballe with him, and are all his confident privado'es. the old nobility cannot but repute them selfes slighted when they sie thesse great offices of state conferred upon [muschroomes][ ] upstarts. but this is a part of the absolute power of kings to raise men from the dunghill and make them their oune companions. [ ] i.e. first. [ ] interlined. [ ] interlined. in the beginning of december died mr. george norvell, advocate, on of the greatest formalists that was in all the tolbuith. his place as agent for the colledge and toune of edinburgh was by act of the toune counsell conferred upon mr. robert lauder, portioner of belhaven, some few days after. at the same tyme died mr. thomas buck, advocat. on the of december the faculty made choice of sir g. lockhart for their dean, sir robert sinclar having of some tyme before showen a willingnes to demit in regard he discovered many of the faculty displeased at him for his faint surrender and breaking the unity of the faculty in the matter of the regulations and for sundry other particulars. on the 'd of january died mr. john andersone, advocat. about the beginning of january james hamilton was received ane under clerk in place of jo. kello, who died (_ut supra notatum_) in may . on the of january the earle of atholl was received ane extraordinar lord on the session in place of the earle of dumfermeling, who died (_ut supra dixi_) in may . in may died mr. john muirhead, advocat. in june i was named by the lords to be on of the advocats for the poor the yeir enshueing, but upon the mediation of my lord abbotshall i was excused. on the of july forbes of tolquhon was fined by the lords in lib. scots for opprobrious speaches to mr. david thoires, advocat, and calling him a knave. on the of januar i was appointed on of the privat examinators of such as offered to enter advocats for that year. on the of januar died mr. robert dicksone, advocat. in the beginning of this year died mr. william wallace, advocat, and on of the shiref deputes of edenbrugh shire. in the beginning of march died sir james lockhart of lee, justice clerk. on the of june mr. thomas murray of glendoick, advocat, was admitted and receaved, in obedience to the kings letters, a lord of the session, in place of lee deceissed, as he was ane ordinary lord, for they say sir william lockart the collonell had his place by way of survivance and reversion of justice clerk. on the same of june mr. david balfour of forret or glentarkie was, upon the kings letter, receaved ane ordinar lord in the place vaikand by the dimission of sir androw ramsay of abbotshall. on the 'th of june died sir james ramsay of whythill, advocat, and mr. james hamilton, advocat, sone to the bischop of galloway. on the 'd of june i was nominat on of the advocats for the poor for the year enshueing. about the of june the earle of argile was admitted and receaved ane extraordinar lord of the session upon the kings letter, in place of the earle of tuedale, turned out, as also the said earle of argyle got tuedales place as one of the commissioners of the tresaury. and my lord of atholl at this same tyme got that place of the thesaury which was lying vaikand thesse severall years by the deceas of sir robert moray. on the of june , in obedience to a new comission for the secret councell, sent doune by the king, the councell was of new modelled, of the former members put out, viz. the earle of queinsberry, earle of roxbrugh, earle of ----[ ], earle of tuedale, the lord yester, and generall major drummond, and new councelors assumed in their place, viz. the earle of mar, earle of kinghorne, ----[ ], lord rosse, my lord colinton, and my lord craigie. [ ] blank in ms. on the of july the lords of session deprived about advocats who partly adhæred to sir g. lockhart and sir j. cunyghame, who ware declared uncapable, conforme to the kings letter on the of june preceeding, and partly refused to officiat under the tyes and obligations contained in his majesties letter anent appealls, and the lords of session their sentences, that none charge them of injustice. on the of july died mr. james rosse, advocat. in october died sir robert preston of that ilk, on of the lords of session. and in the midle of november james foulls, advocat, younger of colinton, by the name of lord reidfuird, was admitted and receaved a lord in his place, in obedience to his majesties letter, and was the first who was tryed in the new manner prescribed by his majesty in july last. in june died collonell sir william lockhart of lee at paris, wheir he lay embassador for his majesty of great brittain, and so the justice clerkship waiked, which was immediatly bestowed and conferred on my lord craigie, but his gift bears _ad bene placitum_ only. in his place as on of the criminall lords succeided my lord glendoick. and at the same tyme my lord newbayth, by a letter from his majesty, being eased and dispossest of his place in the criminall court, the same was given to my lord forret, so that his entrie both heir and on the session is not so cleanly. the earle of atholl having at his being chosen privy seall oblidged himselfe to dimit the office of justice generall when his majesty saw cause to dispose of it, now in june the earle of murray is created justice generall. in july died mr. robert winrahame, advocat. on the of august sir androw ramsay, lord abbotshall, was, upon his majesties letter, readmitted and sworne upon the privy councell, which and his other offices he had dimitted to my lord commissioner under trust on the of december . in the end of september died mr. alexander spotswood of crumstaine, advocat, of dayes sicknes. item, mr. patrick oliphant, of a few dayes sicknes, about that same tyme. in the end of november died james chalmers, advocat. in the beginning of januarie died james hamilton, on of the under clerks of session, and his place was bestowed on john hay, wryter, and criminall clerk depute under mr. robert martin. on the and of january all the outed advocats to the number of ware admitted again to their employments, conforme to his majesties letter theranent. in the end of march died mr. william strachan, advocat, and brother to the laird of glenkindy. on the of june was sir archbald primerose, clerk register, by a letter from his majesty, removed from his place of register and from the session, and a patent sent him to be justice generall, and the earle of murray gets a pension of lb. sterling for it, and his place in session was instantly supplyed by a letter from his majestie in behalfe of sir david falconer of neuton, advocat; and the office of register was conferred theirafter in february (neir years vacancy) on sir thomas morray, lord glendoick. see it in my remarks then. on the of june was a letter red from his majestie, appointing their should be only principall clerks of session, and that the lords remove the rest, appointing them some satisfaction from thesse who stayed in. heirupon the lords voted messrs. alexander gibsone, thomas hay, and john hay to be the who should only officiat (see the manuscript[ ] at november , page ), and removed sir john gibsone, but prejudice of the contract betuixt him and his sone of lb. sterling yeirly, alexander monro and robert hamilton, and modified them merks from the other , which comissar monro refused unles they gave him a reason of their depriving him, which was refused till he raised his declarator if he had a mind to doe it. he within a 'tnight after accepted it. the letter also commanded the advocats consulting togither. [ ] interlined. on the of june was a letter from his majesty red in the thresaury commanding sir john nisbet his advocat to call for sir george m'ckeinzie in the concernes of his office, and act by his advice, and establist lb. sterling of pension upon him for the same. see the other manuscript of session occurrents, page and . on the last of june mr. john eleis and mr. walter pringle ware suspended from being advocats by the lords, because they shifted to depone _super inquirendis_ if their was any combination amongs the late restored advocats not to consult with thosse who stayed in. see the sentence _apud me_. on the of july was mr. john eleis readmitted because he complyed with the lords and deponed. w. pringle readmitted in june . on the of july a new commission of secret councell from his majesty was red, wheirin six of the former councelors ware left out and discarded, viz. the duc of hamilton, earles of dumfreis, morton, and kincairden, the lord cochrane and sir archibald primrose, late lord register. in the beginning of june died mr. james aikenhead, on of the comisars of edinburgh; and in the end of jully mr. james dalrymple was presented by the archbischop of st. andrewes in his place who had got the right of presenting all the comisars of edinburgh during the vacancy of that diocesse in _anno_ , only his gift was caution'd that he sould confer them gratis, and on qualified persones. on the of august died mr. laurence charteris, advocat, and on of the shireff deputes of edenborough shire, in which office succeided to him by the gift of deputation from my lord halton immediatly mr. thomas skein, brother to halzeards, in west lothian, and afterwards admitted ane advocat. on the last of october died mr. john bailzie, advocat. on the of november sir archibald primrois, late register, took his place in the criminall court as lord justice generall, and gave his oath _de fideli_. see more of it, _alibi_, page . see the continuations of the changes and alterations and remarkable emergents of and in the session in another paper book besyde me that opens by the lenth. ( ) observations on public affairs, - [ ] [ ] from ms. ii. [in anno died the q. mother of england. in anno died madame our k's sister mons'r the duc of orleans his ladie she having bein in england but a litle while before. on the of october was the church of the blackfriars in glasgow touched with lightning of thunder about seven a cloak of the morning, and having brok throu the roof it catcht hold upon its jests and had undoubtedly brunt the church to ashes had it not bein extiuguished in tyme. they say it brook also on their great church at the head of the toun. what follows in thir leives is copied and enlarged alibi. in anno the french make ane invasion upon the spanish netherlands, and after he had ransact the country and made himselfe master of divers tounes][ ] as doway, lisle, tournay, etc., a peace was at last concluded in may , wheirof the articles ware, 'o to be perpetuall. 'do so soon as the peace is published all hostility most cease. 'do the french to keip the couquiest of the late campaigne. 'to that he hold them with their dependances in soverainetie and the spaniard to yeald them to him for ever. 'to that the french king restore la france conté. 'to the spaniard most restore all places tane by him in the war. 'o that all princes authorize the treatie and that nothing be retracted of the traitty of the pyrenees save what is disposed on by this: to be mutually interchanged, ratified, and sworne by oath. [ ] the first page, as above, within brackets, is scored out in ms. upon the of september was candie toune (being the losse of the wholle ile to the venetians) surrendred to the turks after a long seige wheir the french got a great overthrow, and their admirall the duc de beaufort was killed with many other persons of note: and wheir monsieur annand our master annands brother behaved himselfe most gallantly, and since hes bein so hylie complemented for that his service by the venetian senat that i beleive never was any stranger more. he is admitted unto all their counsels and sits upon their ducks right hand: the englishs ware so affrontedly impudent as in their new books first to cal him ane englishman, and being challenged for that they designed him after a subject of his maj. of great brittain, so loath are they to give us our due praise. in anno was ane insurrection of the paisants of the country of vivarets in daulphinée in france, upon the occasion of some extraordinarie tax cruelly exacted. they ware soon dissipat. their is presently, in october , a fellow called ratzin[ ] who hes taken up armes in mosco agt the emperor, and hes got of followers neir , men: he was a gunner, had a brother, who, being put to death for some crime, he in revenge of his brothers death hes made this commotion craving nothing lesse but that thesse who ware the cause of his brother's death (now they are the greatest men about the ducks persone) may be delivered up to him. [ ] rebellion of stenka razin against the tsar alexis. it is apprehended by the wiser sort that this union[ ] is mainly set on foot by his majestie, and so much coveted after by him, that he may rid himselfe of the house of commons who have lyen verie heavy upon his loines and the loins of his predecessors kings of england and especially of his brave father, and who have ever most crossed ther great designes. now it being proposed that their should be but on parliament for all britain, it will follow that the house of commons constitut no more a house apart, but that its members sit togither with the lords in the house of peers: and for the better effectuating this great point, i hear his majesty caresses and complements thesse of the house of commons a great deall more then ever he was in use to do, and that he converses most familiarly with them, seikes their company, and that they get accesse when many great persons cannot. but this is not all, such of them as seimed most active and concerned in pressing the priviledges and liberties of that house and of the commonalty of england, his majesty within this short tyme hes nobilitat them, and by this hes both engadged them to his oune party, and by setting them in a hyer sphoere weakned the house of commons. [ ] charles ii. having renewed the proposal for the union of the kingdoms, commissioners were appointed for england and scotland, and sat in london for some months in the autumn of . i confesse the king hes reason to wrest this excessive power out of the commons their hand it being a unspeakable impairment of his soverainetie, but i fear it prosper not. i hear the earle of strafford, who was deputie of ireland, was at first but a mean gentleman yet a member of the house of commons, and on of the most stirring amongst them, which k. charles perceiving he created him a nobleman and by that so endeared him to his intrest that we know he suffered for it. in the middle of came his majesties letter to the secret counsell for indulging some of the outed ministers libertie to return to their oune kirks if vacant, or to preach at any other vacant churches the s. counsell should think fit to place them, and that they should not be answerable to the bischop of the diocese where they ware, but to the counsell. then in the parl. was the king's supremacie in a very hy straine established. this procedure startled all our bischops extreimly, yet all of them ware so cunning and such tyme servers as they seimed to applaud it, only mr. alex'r burnet, arch b. of glascow, and the dean theirof, with some others more ingenuous then the rest, pens a remonstrance (which also they put their hands to) to be presented to the king, showing his majesty whow that course he had tane for uniting distractcd parties and healing our breaches would prove unsuccesfull, yea was to be feared would produce the just contrare effect, vid., more dissentions, etc. upon this occasion he[ ] gets a passe, and if he refused to dimit voluntarlie then their is a warrand from his majesty for processing him criminally: upon that and other heads, he ather judging it not safe to contend with his m'r, or else not daring bid[ ] the touch, dimits in his majesties hands and _ex gratia_ his maj. grants him a pension out of the fruits of that benefice of mks. per annum for all the dayes of his lifetyme. [ ] _i.e._ the archbishop. [ ] _i.e._ to abide. then lighton, bischop of dunblaine, was presented to it, who, after much nicety, and a journey to london, at last condeschended to take a tryall of it for a tyme under the name of commendator superintendent over the spirituality of that bischoprick or some such like name, who took much paines to take up the differences betuixt the conformists and non- conformists, and to that purpose, in my lord commissioners audience in august , ware then sundrie freindly conferences betuixt himselfe and some others adjoined to himself and some of the non-conformist ministers, upon which nothing then followed. he also in september took some moderat men, as mr. nairne, mr. cook, and others along wt him to his diocesse, by them to allure the people to frequent their oune parish churches, but he found them so exasperat wt the loud and scandalous cariage of the ministry that was planted amongs them on the removall of their former, that his great paines had not answerable successe. in anno was honieman b. of orkney shot in the arme, being sitting in the coach wt arch. b. sharp, for whom, it was thought, the pistoll was levelled. some sayd it behoved to be some great hater of the bischops, others said it might be out of privat splen and not for the privat quarrell of religion; others said he was but suborned to do it by the bychops themselves, that they might lay the blame on the presbyterians, and draw the greater odium on them, and stoop the favor that was intended them of opening some of their ministers mouths; and the truth is, it did retard that better almost a year. in anno , about july theirof, mr. john meinzeis, brother to the laird of culteraws, and minister at[ ] in annandale, left his church and emitted a declaration bearing what stings he suffared in his conscience for conforming with the present church governement, which he fand to be a fertile soyle for profanity and errors of all kinds, and theirfor he gives all to whom thir presents may come to know that he disapproves of the said governement and of his bypast complyance, and that in tyme coming he will forsake the ministrie, since he cannot exercise it unlesse he wound his soull farder by that sinfull compliance. the bisc. ware verie pressing to have had him punisht, but his friends got him borne by. [ ] blank in ms. in that same year was that monster of men and reproach of mankind (for otherwayes i cannot stile him), major weir, for most horrible witchcraft, incest, bestiality, and other enorme crymes, at first confest by himselfe (his conscience being awakned by the terrors of the almightie), but afterwards faintly denied by him, brunt. so sad a spectacle he was of humane frailty that i think no history can parallell the like. we saw him the fornoon before he died, but he could be drawen to no sense of a mercifull god, yea sometimes would he scarse confesse their was a god, so horribly was he lost to himselfe. the thing that aggravated his guilt most was the pretext and show of godlinesse wt which he had even to that tyme deceived the world. his sister also was but a very lamentable object, for she ran on the other extreem and præsumed exceidingly on the mercy of god, wheiras their ware no great evidences in hir of soull contrition. she was hanged. they say their is some difference fallen in betuen my lo. lauderdale and my lo. argyle about some desire my lo. lauderdale had in relation to the lady balcarras, now lady argile, which argile relished not, and said, i think your grace would take the ward of my marriage. he answered, i may weill have that, for i once had the waird of your head, which was true in anno , when the sentence of death and forfaultor was past on him as a traitor. in anno did his majesty in his royall wisdome compose the differences betuixt the tua houses of parlia. in engl., which ware likely to have occasioned great strife, it being anent their priviledges and liberties alledged brook[ ] in the case of on master skinner, a member of the house of commons. his majesties course was that all memorie of discord betuen his houses that might be found on record should be totallie abolished and expunged both out of the registers of parl., exchequer, counsell, and out of all other monuments, that the ages to come may not so much as know their was any variance betuixt them. on the of september was colonell lockhart admitted a secret counseller, and they say that lambert is also made a counsellor in england. [ ] _i.e._ broken. the king in craving of his parliament a subsidie for defraying his debt, they proposed that ere any new tax could be granted account should be made of the former subsidies, whow the same ware employed by mr. cotteridge and others, whom the king made use of to that purposc. sure this was very grieveous to the king to sie himselfe so controlled in his expence, and that he could give no gratuity to my ladie castlemain (now dutchesse of cleveland, etc.) but that which they behoved to get notice of, behold the stratagem he makes use of. the presbyterians at that tyme, hearing of the indulgence given to some ministers in scotland, they offer to the king to pay all his debt, and advance him a considerable soume besyde, provydeing the same liberty be granted them. at the nixt sitting doune of parl. his mai. in a speach showed them whow harshly and uncivilly they had dealt with him, and, after much plain language, he told them if they would not grant his reasonable demands he know them that would do it. after they had come to know his majesties meaning by this,[ ] who ware more forward then they, they passe fra craving any account of the former, they grant him a new subsidy of a million, they consent their should be a treaty wt scotland anent ane union; yet onlie the dint of their fury falls on the presbyterians, and they enact very strict statutes against them and against conventicles, because they had been the pin by which his mai. had scrued them up to that willingnesse. so we sie its usefull sometymes (as matchiavell teaches) for a prince to entertaine and foment tua factions in his state, and whiles to boast the one with the other. [ ] his majesties meaning by this, _i.e._ 'what h.m. meant by this imtimation.' as soon as they understood that, 'who were more forward than they?' in october did at last break out that inveterat hatred of the wholle people of england against chancellor hide, and he is arraigned as guilty of hy treason by the house of commons, who pressed strongly that his persone might be secured till such tyme they had verified the crimes they attached him of. this motion the house of peers wt indignation rejected as derogatorie of their priviledges, he being a member of their house. while the houses are thus contending he judges it safest for him to retire till this storme blow over, and this was also thought to have bein the king's advice to him, who was very sorrie at their procedor, thinking it a bad precedent for the house of commons to medle with persones so eminently neir to himselfe; yet in the breach he durst not stand but was forced to give them way, so much was hyde hated in england, so that his maj., rather then he will in the least endanger the disturbance of his oune peace and quiet, resolves now to quite his dearest minions and expose them to the malice of their ilwillers and haters then stand stoutly to their defence, and so make himselfe party against his people. so hide makes his escape to france, leiving behind him a declaration wherin he refutes all the crimes they lay to his charge, as his being the author of the marriage of the king wt the portugues, knowing she would be barren, and that his daughter's posterity might so reigne: item his being the occasion of the selling of dunkerk to the french king, wheiras if it had bein in the english their possession in the year , in their war betuixt them and holland, they could have annoyed the states considerably theirby. but the truth is the queen mother of england was wery instrumentall in that bargaine: item his being the active cause of the war betuixt england and holland, of which he purges himselfe so largely that i think no man can scarse judge him any way accessor theirto. that war (wt pardon) was hardly weill manadged on the english syde, and they committed errors most unpardonable in good policie: as first in that battell that was given on the june , wheir admirall obdan and his ship ware blowen up, being fired (as was supposed) by the english bullets levelled at it, they contented themselves with the simple wictorie and honor of commanding the seas, wheiras if they had followed forth their victorie and had got betuixt the holland their shattered fleet and the coast of holland and zealand, it was thought by the most judicious men that that on battell might have put ane end to the war and have produced most advantagious conditions for the english: but they verified the knowen saying, _vincere scit hannibal sed õ victoriâ uti_. their pretence indeid was that they would not pousse their victory farder by hazarding what they had already won, because the appearand air of the croun, the duc of york, was present in person. but whow weak this is let any man judge, unles they mean that by intercepting the dutch their way home they might have made them desperat and so fight like devils, and that it hes ever bein a good maxime to make a fleing ennemy a bridge of gold. whowever the dutch concluded that they would have no mo admirals that ware gentlemen (for obdam was so) because they never fought fortunatly with their ennemies when they had such. but certainly this is nought but a fiction made by a commonwealth to cast a blur upon nobility, seing thir same very states have fought most couragiously and advantagiously under the conduct of the princes of orange. upon his death de ruyter was chosen admirall, and van tromp the younger, upon a suspicion of being to affectionat to the intrest of the king of britain, was disgraced. the nixt (but rather should have bein made the first) was his mai:s bad choyse of a false chirking willain, mr. douning,[ ] to be his agent to negotiat affaires at the states generall in the beginning of that war, who steid of composing things rancored them worse and made them almost uncurable, judging it good fisching in troubled waters, wheiras if a moderat and ane honest man had bein made use of in that business, things would never have come to the height they were at, since the offers of reparation then made by the dutch to his majesty ware by all indifferent spectators judged most fair and reasonable. the ^d is that in the engadgement the following summer, , the king's intelligence should have bein so bad as to have apprehended at that tyme the joining of the french fleet wt the hollander (wheiras their was no such thing, but it was of purpose done to divide his majesties fleet), and theiron ordering prince rupert with his squade away to attend their uniting; and in his absence the dutch taking the advantage, provocked the duck of albemarle (who was a better land sojer then a sea, and who died in ) with sixtein ships to fight their wholle fleit, who more hardily then wisely encountering them, had undoubtedly bein totally routed and defeat had not prince rupert upon notice come up and releived them. by which conflict it at last appeared that it was possible for the english to be beat by the hollander, which was never beleived before that. [ ] sir george downing, (?), , long resident at the hague under the commonwealth and charles ii. see _nat. dict. biog._ the nixt error they committed was that the following summer, , the king (for sparing of charges forsooth) was advysed not to set to sea that year, but to let his fleit lay up in the harbors, which gave cause to that mighty affront (then which since england was england it never received the like) given them at chattan, and wheir the scots regiment, brought over from france by the king's order, making braver resistance then all england beside, ware many of them slain, dying in the bed of honour. as for the scots proclaiming war against france, and as for the more naturall way tane by our king in proclaiming the war then tane by france, i shall elsewheir speak more at large. appendix appendix i extracts from accounts to § on the of july , i receaved lb. in dollars,[ ] which compleited one halfe a year's annuel rent,[ ] vid., m., wheirof first given out to my wife dollars to defray sundrie debts, vid., lb. to mistris guthrie for elle and a quarter of borders, lb. s. to george reidpeth, lb. s. for chandellers, s. for a pint of win, lb. given to the wright with some other lesser things; then i gave une dalle imperiale a mon serviteur pour acheter les saintes ecritures, pence for a quaire of paper. then on the ij of july , i gave my wife dollars for keiping the familie: dollars given to my wife to buy wooll with. this makes a merk. then i gave a dollar to buy covers for the chaires, s. and p. for a pair of shoes, lb. at a collation with mr. hamilton, s. at a collation with mr. thomas bell, s. for a mutchin of wine.[ ] halfe a dollar to walter cunyghame, s. for paper and ink, lb. for leads of coalls at s. the load, dollars given to my wife, a dollar given for a french croune to my wife, p. for a mutching of win,[ ] p. in caddells with mr. hendersone. item, s. sterling given to my wife. item, dollars given to hir, a groat to the barber, s. sterling for a new board, a mark in the contribution for the burgh of dundie, a shiling to the keiper of my goun, dollars given to my wife, halfe a dollar at a collation in cuthbertsones, pence at a collation with balmayne. out of the last dollars given to my wife, she bought a chamberpot for shillings, a board cloath for shillings and p., then i gave hir dollars: this is another merks, then lb. payed for load of coalls, pence given in drink money to the cawer,[ ] pence at a collation with colinton, pence at on with sir george lauder, lb. at a collation with mr. falconer, p. for wine, a dollar to my wife, then dollars given hir for the familie, so this is the account of the other dollars remaining of the dollars, togither with other dollars pris de l'argent donné a la nourrice. [ ] the dollar is here equal to s. d. sterling. [ ] from his father secured on the lands of carington, settled in his marriage-contract. [ ] the shilling scots and penny sterling are here used for the same value. [ ] 'cawer,' driver, carter. then on the of august , i received from my father dollars, the accompt wheirof follows:-- item, payed for my press making and colouring, etc., lb. s. for the glasses footgang, s. for seing the duke's berge at leith, lb. s. given to my wife, dollars. given to the nurse to buy a bible with, one dollar. with kilmundie, pence. for the articles of regulations, pence. then given to my wife, doll. and a shilling. then given hir to buy shoes, linnen, and other things with, dollars. for quaires of paper, pence. at hadoe's man's wedding, a dollar. for seck with thomas robertsone, pence. for wine with my landlord, pence. given for the houses use, dollars. for a coatch, shillings. summa is dollars and a halfe. then on the thrid of september , i received my years annuel rent from thomas robertsone, vid., merks, the count wheirof follows:-- imprimis, given to my wife when she went to wauchton, dollars. given to the barber, halfe a mark. given to a poor boy, halfe a mark. given in drinkmoney to my goodfather's nurse, a dollar. given to huntar, my goodfather's man, a pence. a dollar to jo. scots nourrice, a dollar. given to the woman margaret, dollars. spent on rhenish wine at hadingtoun, shilling. for my breakfast at lintoun bridges, shiling. to idingtoun's men bigging the hay rick, shiling. to his gairdner, halfe a dollar. to the kirkbroad, shiling. to idington's serving woman, a dollar. to his hielandman, shilling. to my goodbrother's man lambe, a mark. for the horse meat at hadingtoun, pence. to the tailzeor for mending my cloaths, a shilling. to my father's man arthur, shilling. to wodstone's man florie, a shilling. to the kirk broad at abbotshall, a pence. for rhenish in kirkealdy, shiling. then given to my wife for the house, dollars. for binding durie's 'd volume, lb. shil. this makes one merks of the merks. then gave for the acts of the 'd session of parliament, pence. then for a pair of shoes, lb. s. then for androw young's nurse for my selfe, a dollar. given then by my wife, halfe a dollar. given then for a pint of wine, shiling. given to my wife to buy some slips with, a dollar. given to grissell ramsayes mother for drink furnisht by hir to us by the space of weeks, dollars. payed for wine, pence. payed for horse hires to preston, shilings and pence. payed for wine in daniel rosses, shilings st. for a quaire of paper, pence. for ink, pence. given to my wife, shilings s. payed for causing intimat the assignation to h. sinclar at binny, shil. st. given to my wife, pence. to the barber, pence. of october given to my wife for the house, dollars. given to pitmedden's nurse, a dollar. sent to a poor persone, a mark. payed for heylin's cosmographie, sh. and pence. given to the provest's woman, pence. given for paper, pence. this makes another mks. and dollars more. then payed at a collation with mrs. wood and bell, a dollar. payed to john nicoll for a great bible, shillings. payed again to grissel's mother for drink, dollars. given to my wife, halfe a dollar. given also to my wife, a dollar. given for a paper book by my brother for me, p. given to my brother william at that tyme, pence. given to my wife, shil. pence. given to the woman in part of hir fie, a dollar. given for quaire of paper etc., pence. expended farder on the intimating hew sinclar's assignation, a shilling. for binding the reschinded acts of parl., halfe a crowne. at a collation with the laird of grange, shiling. on win with ja. lauds, pence. given to my wife, a dollar. item given to hir, halfe a mark. given to the barber, a pence. given in pentherer's, pence. given to my wife for my ...[ ] a dollar. item given to my wife for the house, a dollar. given for new wine, a shilling. given to my wife, shilling. given againe to my wife, a dollar. given for the house, a dollar. given to my wife, dollars. [ ] word interlined illegible, like 'manninie.' this is the account of the wholle mks. all till about a dollar which i remember not of. then towards the end of november i received from my father about mks. and dollars which with all the former made mks. wheirof imprimis.[ ] [ ] in the first of these entries the value of the dollar comes out about s. d., in the second at s. a dollar and a halfe given to a man for teaching my wife writing and arithmetick, lb. s. then a dollar for the serving woman's halfe fie, lb. item in drinkmoney to the bedell and others, halfe a croun. item to my wife, a dollar. item at geo. lauder's penny wedding, a dollar. item to the fidlers, a pence. given to my wife, a dollar. item, given hir for the use of the house on the 'd of december, dollars. to the barber, pence. upon win and at cards, pence. to my wife, a mark. for a pair of shoes and gallasches[ ] to them, s. and p. to my wife, pence. given to my wife to buy to hir nurse a wastcoat with and shoes, etc., dollars. at a collation with rot. bell in pentherer's, shiling. to mr. thomas hay that he might give up the papers, dolars. for broun's vulgar errors, shilings p. for the present state of england, halfe a croun. for the moral state of it, shilings. then given at the kirk door, halfe a dollar. [ ] overshoes. this is neir ane account of ane mks. and the dollars. then on the of december was payed to the nurse as hir fee, dolars. item given hir as a pairt of the drinkmony she had receaved, dollars. which two soumes make up the other mks.[ ] [ ] dollars equal to marks. taking the mark at - / d. dollar equal to s. - / d. then i receaved from my father other mks., which made mks. of all that i had received from him. wheirof first payed to the nurse to compleat hir drinkmoney, which amounted in all to dollars, dollars. at a collation with idington and others, a dollar. given to my wife to buy a plaid with, dollars. given to my wife to buy lace with to hir apron, a dollar. then on the end of december given to my wife dollars and a halfe to pay barrell of ale furnished us at s. the barrel, dolars and a halfe.[ ] item given to my wife, pence. item payed for another pair of shoes, shilings pence. item for wine with mr. g. dickson in caddell's, pence. given to my wife, a dollar. payed for wine, pence. given to my wife, halfe a dollar. then given hir, a dollar. which makes up on hundred mks. [ ] dollar equal to about s. d. then on the 'd of january being hansell monday i gave my wife to give out to people who expected handsel, dollars. then that same day i gave hir for the house, dollars. given for the acts of g. assembly , shillings. given to my brother william, a dollar. given to my wife, mark. also given to hir, a dollar. then given to my wife to pay the waterman with, shils. then payed for goodwin's antiquities, etc., shilings. then given to my wife to buy linnen to make me shirts with, dollars. given at mr. david falconer's woman's brithell,[ ] a dollar. payed for a chopping of win, pence. for a quaire of paper, pence. for wine, pence. at a collation with idington, shilings. given to my wife to buy sugar with, shilings st. then given to dr. stevinson's nurse, a dollar. [ ] bridal. this is the other mks. which makes in all the wholle mks. then i receaved my pension, vid., mks. from the toune of edenburgh: out of which imprimis: given by my wife to doctor stevincon's nurse, a dollar. given also to my wife, a dollar. given to my wife, a dollar. payed to john jack for a pair of broatches to william ramsay, lb. payed for wine, pence. payed for a quaire of paper, pence. payed to my man of depursements for me, pence. payed for papon's arrests of parliament, a dollar. given to my wife, a dollar. given to my wife, a shilling. payed in a contribution for the poor out of money given me in consultation, lb. scots. payed for a pair of gloves, shil. given on the d of febr. to keep the house with, dollars. payed for horse hires when i went out and meit the provest, shilings and pence. given to rot. lauder's man in belhaven, a shiling. given to my wife, a dollar. given to mr. andro wood's man in dumbar, halfe a dolar. given at waughton to darling and pat. quarrier, a dollar. given at gilmerton to the workmen their, a dollar. given for load of coalls furnisht to us, ib. this is on mks. then given lb. to the nurse for hir child's halfe quarter, lb. then payed on the of febr. to my onckle lb. in dollars[ ] for bolls of meall, the first bolls being at lb. s. the boll, the other being at lb. the boll, dollars. given to my wife, halfe a dolar. given to walt. cunyghame, halfe a dolar. given to my wife, a dollar. given to my wife also, a dollar. given for the use of the house, dollars. spent upon wine, pence. given to the macer's man, a mark. given to my wife, dollars. given to the under keiper of our gounes, a mark. given to the barber, a mark. [ ] dollar equal to s. - / d. this is the count of the other mks. of the given me in pension. then i received from wm binning thesaurer dollars, of them consultation money, and of them to make the lb. st. or lb. scots,[ ] of pension to me, out of which: [ ] l. scots ought to have been equal to £ , s. this shows that the scots money was not at the time at par with the english. imprimis, given at a collation with mr. wm lauder, shils. given to the bedell at leith, pence. given to my wife, shilings. for sweit pouder, shilings. for wine, pence. given to my wife, pence. given for wine, pence. given to my wife to buy shoes with and lint, a dollar. given for the use of the house, a dollar. payed for wine in lieth, shil. given at hew boyde's contribution, a shiling. given to my wife, a dollar. given to buy lint with, a dollar. given for a drinking glasse, pence. given to my wife, a dollar. given for the state of england, d volume, shilings. spent on wine, pence. given for the use of the house, a dollar. this is all the dollars. then i receaved on the of march from my father mks. which made in all of what i had receaved from him mks., out of which: imprimis, given for the use of the house, a dollar. given to my wife to buy lace for a pinner, to buy holland for napkins and aprons, etc., dollars and a halfe. item, for a chopin of win, pence. item, given to my wife, pence. item, for the use of the house, a dollar. to my wife to buy lace for apron and napkins, a dolar and a halfe. payed at a collation with collonell ramsay, shiling. lent to james lauder, dollars. given for the house, halfe a dolar. given to the barber, a shiling. payed to the baker conforme to his accompt, lb. s. payed for halfe a quarter's fie with the nurse's child, ib. given to my wife, shilings. payed at a collation with mr. charles wardlaw, etc., shil. item, to buy figs with, pence. item, for knox his history and navarri manuale, dollars. this is the accompt of one mks. then of the rest. imprimis, given for the use of the house on the of aprile , dollars. on the of aprill given to the midwife, dollars. given to my wife to buy a litle silver dish with, which cost hir shiling, a dollar. given to my wife for sundry uses, dollars. spent upon wine, shiling. then given to my wife to buy turkies, etc., dollars. then given for ribbans to be garters, etc., shil. then on beir in peter wats at a morning drink, shil. then to sir john dalrymple's child's nurse, a dollar. to mr. archbald camron for taking up[ ] the child's name, a dollar. to the scavinger, shilings. at the kirk door, a pence. to the bedells, a dollar. given to my wife for sundry uses, lb. shil. [ ] registering. this makes mks. then given out of the other: imprimis, to my wife, a dollar. at a collation with patrick don, shil. to my wife to pay a quarter for the nurse hir bairnes fie,[ ] dollars. item for the houses use, dollars. for a quaire of paper, pence. item given to my wife, pound. item given hir for buying meat to the gossips when they visit, dollars. given to pay the win and seck gotten out of painston's, dolars. given to buy a coat to the bairne john, a dolar. given to buy wool with, dollars. given to the poor, a shiling. given for wine, shiling. given to the house, a dollar. given by my wife and me to sir androw's nurse, dollars. waired on wine, shiling. given to my wife, mark. on win with mr. alex'r hamilton, pence. given for paper and ink, pence. given for wine, pence. given to the woman margaret, pence. [ ] wages of nursemaid eight dollars, about £ . sie the rest of their accounts alibi. this is the accompt of the said m. very neir. so that their is nothing resting to me to make up a compleit years rent: vid., from lambes to lambes , but only one hundred merks, which i allowed to my father in respect he payed a compt of that value for me to john scot: as also of his oune moneyes he was pleased to pay lb. for me which i was addebted to the same john for elle of cloath tane of for my bed and appertenances, at lb. the elle and did not at all place it to my accompt. § o lord, teach me so to be counting my dayes, that i may apply my heart to thy wisdome.[ ] [ ] these words stand as a motto at the head of ms. k. * * * * * sie my counts praeceiding this in a litle black skinned book alibi. [_supra_, p. .] on the of may , my father was debitor to me in the soume of mks., payable out of the lands of carington, and that as my year's annuity from lammas, in the yeir , till lambes coming in this instant year ; all preceidings are payed to me and discharged by me. of this mks., i receaved the formentioned day from him mks., out of which i payed: imprimis, to the janitor for books, vid., the english laws, polidorus virgilius, zosimus and aliorum historiae, and vimesius theses, etc., shil. st. given to my wife for sundry uses, dollars. for wine and seck in the janitor's, shil. to my father's skild nurse by myselfe and my wife given, dollars. for elle and a quarter scarlet ribban fra james dick, shil. for this paper book wheiron i write thir compts., pence. given to my wife, pence. for wine in pentherers, pence. given to the poor, a pence. given to my wife for the use of the house and other things, dollars. given to joseph for shaving me, a shiling. given to my wife for sundry uses, shilings. on win, pence. item, to my wife, pence. for a quaire of paper, a leather bag, and sundry small things, pence. item, given to my wife for the use of the house, dollars. this is mks. laking on by halfe a dollar. then given to my wife for divers uses, dollars. for a pair of shoes, shil. and pence. upon win at leith with mr. wood, etc., pence. since on win and otherwayes, pence. item, given since on beir, in leith, for a velvet cod,[ ] etc., pence. on the of june, given to my wife for the use of the house, dolars. item, for another pair of shoes, shiling. item, for wine, pence. item, for tent to my wife, a mark. item, for wine to the landlord when i payed him lb., pence. item, for sundry other adoes, shiling. on win. with doctor steinson, pence. given to my wife to give hir wobster,[ ] shilings. for more tent, a shiling. item, a dollar as a part of lb. payed by me of annuity, a dolar. item, on the of july, given to my wife for the use of the house, dolars. item, at a collation with kilmundy, shil. given to my wife, halfe a dollar. at a collation with mr. pat. lyon, shiling. item, on sundrie other uses, a dollar. this is the accompt of the saids mks. [ ] pillow. [ ] weaver. then on the of june , i received from the provest, sir a. ramsay, lb. scots as a termes annuel rent of the principal soume of mks.,[ ] addebted by him to me, vid., from candlemas to lammas . which lb. i payed to james wilsone, my landlord, in part of my house maill, which was lb.,[ ] so that i remaine yet debitor to him on that accompt in lb., afterwards payed and all discharged. [ ] unpaid half of his wife's marriage portion. see page xli; per cent., equal to per cent. per annum. [ ] house rent, £ , s. d. half-yearly. then on the of july, i receaved from my father mks., which made up mks., of the year , received by me, out of which imprimis, payed to my landlord to compleit his maill, lb. item, to his woman nans, a dollar. item, to william borthwick, the apothecar, conforme to his accompt, lb. item, to william mitchell, the baker, conforme to his accompt, lb. item, to rot. mein, for sweteis, glasses, etc., conforme to his compt., lb. item, given to my man when he brought me my lb. sterl. from wm. broun, the burrows agent, a dollar. item, given to my wife, dollars. item, upon win with guus grein, pence. item, to my wife for the use of the house, on the of july , dollars. given to my wife when she went to innerkeithing fair, dollars. item, given hir to pay the deing[ ] of hir hangings, dollars. item, on the of august, given to my wife to buy a goune and petticoat, and furniture, conforme, lb. [ ] dyeing, i presume. and because the mks. receaved last from my father did not reach so far as to compleit it, theirfor i took dollars out of mks. payed me in july by wm. broun, in name and be halfe of the borrows for my pension, , and made up the lb. i gave to my wife theirby. item, farder payed out of the said mks. of pension for barrells of aile furnisht to the house from the midst of january till august, at shil. the barrell, dollars and a halfe.[ ] [ ] here the dollar is equal to s. d. this is near ane accompt of one mks. of the m. payed to me in pension. item, given to my wife, dollars. payed in r. gilbert's when i was at leith with the lady wauchton, a dollar. item, payed for the coach hyre, a dollar. item, given to my wife to help to buy black lace for hir goun, dollars. item, given hir to buy coalls with from leith and elsewhere, dolars. item, in painston's with sir andro, shill. item, given to my wife when she went to waughton to sie hir sone, dollars and a halfe. item, in painston's with mr. rot. lauder and rot. bell for our supper, shill. for quaire of paper and ink, pence. for ane plumes, pence. to idington's man when he come from dundy with the cloath, shil. to my man for sundrie depursements for me, shil. to the woman marion for buying meall to the house, a shilling. item, in peirson's with rot. bell, shill. item, for my dinner in pentherer's with rot. bell, etc., shill. item, for a coach hyre out of leith, shiling. item, to grange's man, a shilling. item, to my wife, halfe a dollar. item, for a mutching of tent, a shilling. item, given to the nurse to be compted in her fie, dollars. item, given to my wife, a dollar. this is the full accompt of the said mks. then about the of august i receaved from my father mks. which made with all the former mks. of this year . out of which imprimis: given to my wife to pay the making of her goune and other things, dollars. in painston's with mr. jo. eleis, shiling. to my wife, shiling. for a choping of brandy, pence. item for a hat in broun's, shilings. item, to my wife, a dollar. item, to grange's nurse, a dollar. item, to the barber henry porrock, pence. item, to george gairner, a mark. item, to w'm binning the thesaurer his nurse, a dollar. item, to david colyear, shilling. item, on the of september given to my wife for the use of the house, ij dollars and a halfe. this is one merks. then on the same day given her farder for the same use, dollars. item, given hir, halfe a dollar. item, for wax and soap, pence. payed to henry hope for ports of letters when i was in holland, lb. s. for the acts of parlia. in june , s. for dozen of gold strips to the hangings at s.[ ] and p. the dozen, dollars. upon seck, pence. [ ] sterling. this is another mks. then given to my wife, a shilling. for a quaire of paper, pence. at a collation with hary grahame, pence. to john scots nurse, a dollar. on win their, shill. in the lady home's yeards,[ ] pence. payed for my man's horsehire to wauchton, shill. payed of sundry depursements to my man, shilling. given to george gairner, a shilling. given to my wife, dollars. item, on win with walter pringle, shill. item, for a pair of botts, shilings and sixpence. to alex'r todrig's nurse, a dollar. for a quaire of paper, pence. for rasing[ ] me at severall tymes, pence. given at coldinghame kirk, a pence. given to the foot boy their, a pence. upon sundrie other uses neir, a dollar. item, given to my wife, twa dolars. [ ] probably means gardens. [ ] shaving. this makes neir the other mks. and in wholle it makes up the mks. receaved from my father on the of august last. then on the of nov'r. i receaved other mks. from him, which makes mks. of what i received of my annuity , out of which, etc., etc.[ ] [ ] this account is omitted as of no interest. * * * * * on the of february i receaved mks. more from my father, which with the former made mks. of the mks. due to me of annuity from lammes till lambes last in , out of which, etc., etc. * * * * * then on the of aprill i farder receaved from my father other mks., which being joined with all the former makes up mks., which is a full years annuity owing to me by my father, vid., from lambes till lambes last in anno : wheiron i retired all my partiall discharges and gave him a full discharge of that year's annuity and of all preceiding lambes . out of this last mks. imprimis, payed to margaret neilsone in part of years fie owing hir (it being lb. scots by year)[ ] at whitsonday approching, lb. so that their yet rests to hir of thesse years fie lb. scots. item, payed to bailyie drummond for the cloath of my wife's black goune, lb. item, for auctores linguæ latinæ, vid., warre, isidorus, etc., shiling. item, given to my wife, a dollar. item, given hir to buy worsted stockings for me, shillings. given at a collation with eleiston, shilling. item, for a quaire of paper, pence. given to my wife for the use of the house on the of aprill, dollars. all which depursements make mks. of the last received from my father. [ ] women servants wages, nearly £ sterling. item, for the covenanters plea, a shilling. given for a new quarter with the nurse hir bairne, dollars and a halfe. for the informations about the firing of london, pence. at a collation, pence. for a quaire of paper, pence. given to my wife, a dollar. at a collation with wm. aickman, shil. item, given to the nurse in part of hir fie, dollars. item, for g. burnet's letter to jus populi and for the tragi comedy of marciano, pence. for a book against the commonly received tennents of witchcraft, pence. given to my wife, tua dollars. given to my unckle andrew in compleit payment of his meall, dollars. given for the seasonable case and the survey of naphthali, pence. given for milton's traity anent marriages, shillings. item, upon win, shillings. item, for a pair of shoes, pence. this is the accompt of the haill mks. last received by me from my father on the of aprill . then on the of june i receaved from thomas robertsone lb. scots: lb. of it was a years interest of my mks. he hes in his bond, vid., from lambes till lambes : the other lb. was my pension fra the toune of edr for the year . given out of the mks. imprimis, to my wife, rix dollars. item, for petryes history of the church, shills. sterl. this is one merks.[ ] item, for taylor's cases of conscience or ductor, etc., shillings. item, for baker's chronicle of england and blunt's animadversions on it, shillings. item, for plinius dus his epistles cum notis variorum, shillings. item, for cromwell's proclamations and other acts of his counsell from septr. till decr. , shillings. for a pair of silk stockings, ij shills: p. given to the nurse's husband, a dollar. given for tyrannick love and the impertinents, tuo comoedies, pence. given for reflections upon the eloquence of this tyme, pence. given for the mystery of iniquity unvailled by g.b., pence. given for the accompt of the sea fight betuixt e. and d. in ,[ ] and are answer of our commissioners to england in , pence. given for ane answer to salmasius def. regia,. pence. item, for my dinner and other charges at leith, the race day, shillings stg. given for holland to be a halfe shirt, shillings. given to my wife for the house, a dollar. given for the life of the duck d'espernon, shillings. this is another mks. [ ] this makes the dollar about s. - / d. [ ] english and dutch. item, given to my wife for the use of the house, dollars. item, at halbert gledstans woman's marriage, a dollar. item, at the comoedy, halfe a dollar. item, that night in rot. meins for wine, halfe a dollar. item, in james dean's the consecration day, shillings. item, payed to jonet's nurse and hir husband,[ ] for hir fie drink money, bounty and all, dollars. which absorbed all the mks. received by me from thomas robertsone as my annuel rent and put me to take dollars out of the money given me in pension. hence of the lb. given me in pension i payed to the said nurse as already is got doune, dolars. item, given to my wife, dollars. item, given hir for the use of the house on the of august dollars. [ ] amount torn off. this is lb. of the receaved by me in pension, so that their remains with me lb. of that money, out of which lb. imprimis on the first of september given the said haill lb. to my wife for the use of the house. then on the of august i had received from thomas robertsone the other year's interest of my mks. in his hands (being mks.) vid., from lambes till lambes immediately bypast in . out of which imprimis: given to my wife the forsaid of september for the use of the house, dollars. [item lent to eleiston, dollars.[ ]] repayed. item, at a collation with pat. waus, a dollar. item, on the of september , given to the midwife, dollars. payed in annuity from whitsonday till whytsonday in dollars and a halfe, lb. and a groat.[ ] item, at a collation, a mark. for a letter from france, pence. to my father's man, a mark. for paper, vid., a quaire, pence. item, given to grissell ramsay for the use of my house, a dollar. item, given at gosfoord, shiling. item, to st germain's nurse, a dollar. item, to mr. james fausyde's man, shill. item, for win at cokeny, [ ] erased in ms. [ ] apparently the last groat coined in scotland was the copper twelvepenny groat of francis and mary in . james v. coined a silver groat in worth d scots. the groat here is an english groat, which was worth d. this is more then one mks. of the . item, given to my wife on the of septr. , for providing things to the christning, dollars. item, to doctor stevinson's nurse, a dollar. this is mks. of the received from t. robertsone. item, for registration of my daughter's name to mr. archbald camron, a dollar. item, to thomas crawfurd, kirk treasurer because not christned at sermon tyme, a dollar. to the kirk bedell, shilling. for a letter from france, pence. on win in rot. meins, a mark. for a coatch hyre to ja. dean's house, a shilling. for a pair of shoes, shillings. given in with a letter to paris, a shilling. for a quaire of paper and for ink, pence. for a mutching of seck with mr. william beaton, pence. item, on the of october, given to my wife, dollars and a mark. item, for win., pence. item, given to pitmedden's man, a mark. item, to william broun's man when he payed me my pension, a dollar. item, on the of october, given to my wife, dollars. item, on incident charges, a dollar. this is the mks. of annuel rent received by me from thomas robertsone on the of august last. item, on the of october , i receaved from william broun, agent for the borrows, pounds sterling, being my pension as their assessor for the year , of which: imprimis, for a pair of shoes, shiling. item, in charity to ja. hog, pence. item, for quare of paper, pence. item, for a letter from france, pence. item, at a collation in james halyburton's, shiling. to robert boumaker, a dollar. on coffee and other things, pence. item, given to my wife, two dollars. item, given to my wife, dollars . so then their remains of the said lb. st. given me by william broun only dollars. with the which dollars given to my wife, she payed first to rot. mein, for confections, wine, etc., to the christening, lb. item, to william mitchell for baken meit at the same tyme, lb. item, for sundrie other accompts, lb. which is the haill dollars.[ ] [ ] this brings out the dollar at about s. d. item, of the dollars remaining to me of the foresaid money given me in pension, imprimis, given to my wife for the use of the house on the of november , dollars. item, at a collation or on win in grissel ramsay's house, shillings. item, for seing the comedy called the silent woman, halfe a dollar. item, at a collation after it, pence. item, on some other charges, shillings. item, at a collation, shillings. item, given on the of nov. to my wife for the use of the house, dollars. this is all the lb. of pension. then at a consultation of the toune of edrs, i receaved dollars, of which: imprimis, given to my wife the tyme aforsaid, dollars. item, for sundry books, vid.: barronius annals compendized, tomes,. \ summa conciliorum, tyrius maximus, danaei antiquitates, | benzonis historia americae, demosthenis | shillings olynthiaca, | and pence. apulei opera omnia, bucholzeri chronologia, | s.g. m'keinzies plaidings, / item, for myselfe and my wife at the comedy called love and honor, a dollar. item, on win after i came home, pence. item, given to my wife for the use of the house on the of november, dollars. item, upon win at sundry times, shiling. this is the haill dollars. item,[ ] at sundrie consultations, vid., on of george homes, dollars; on of henry lindsay's for the laird of guthry, dollars. item, from james gibsone, dollars; on of mr. p. hamilton of dalserfes, dollars; from mr. alex. seaton in name of my lord winton, dollars. item, at a consultation with the toune of edr., dollars, making in all dolars, wheirof upon sundry occasions which do not now occurre, i spent dollars long ago. so then their remains dollars, out of which imprimis: [ ] example of counsel's fees. given or lent to margaret ramsay at the hilhead, dollars. given in charity to on anna gordon upon hir testificats, a shilling. item, at jo. meggets relicts brithle, a dollar. item, at collations since, a dollar. item, upon other affairs, tuo dollars. for seing the comedy called the siege of granada, d part, for my selfe, my wife, and grissell ramsay, a dollar and a halfe. item, to the bassin at the church door, halfe a dollar. item, given to my wife, a dollar. given to g. patersone, the wright, his woman or nurse, a dollar. item, at a collation with charl. oliphant about touch, pence. item, at the comoedy, being the first part of granada's seige, for my selfe, my wife, rachel, and grissell ramsayes, dollars. item, given to my wife for the use of the house, dollars. item, for the acts of parlia., session , etc., shiling. item, for binding hadington's praitiques, shilling. for a quaire of paper, pence. item, upon other uses, shilling. item, to my wife, dollars. this is the accompt of the haill dollars. item, receaved at sundry consultations dollars, out of which: imprimis, given to my wife, dollars. item, on win at aberdour, a mark. item, for sieng the house and yairds of dunybirsell, a mark. to g. kirkcaldie's servante, a dollar. to my wife, halfe a croun. for the new art of wying vanity against mr. g. sinclar, pence. item, to my wife for the use of the house on the last of decr. , dollars. which was out of other money i had besyde me, which dollars with what i gave formerly makes up dollars and shillings sterl. of the money due to hir for the moneth of january . item, again to my wife, a dollar and merks. item, given hir, merks. as also given to hir, two dollars. item, given to hir again, a dollar. item, given hir, thrie dollars and shillings. item, given hir, dollars. then on the of february , i receaved from rot. govan, gairdner, lb. in payment of his tack duety for all termes preceiding martinmas , out of which imprimis: payed for my selfe and mr. john wood for seing the comoedy called sir martin mar-all, a dollar. item, to my wife, dollars. given in with the trades bill, a dollar. item, at a collation, l pence. item, given to my wife, a dollar. item, waired upon sundrie things, shil. this is the accompt of the lb. then upon the 't day of march i receaved from my father merks, the first monie i lifted furth of the annuity payable to me from lambes till lambes last bypast: all preceiding lambes being payed to me by my father as i have already marked, out of which: imprimis, given to my wife, dollars. to pay hir ale compt which was dollars: hir baxter compt, dollars, hir wobster, dollars; hir coalman, dollars. hir nurse for the bairne jonets quarter, dollars.[ ] item, given my wife for the use of the house during this moneth of march, dollars. item, for a pair of gloves, halfe a dollar. item, at a collation and on other uses, shilings. item, spent upon the race day, shillings. item, at a collation, shiling. item, sent to calderwood's man's wedding, a dollar. item, at a collation in heriot's yards, pence. item, for seck with a. todrigde, ij pence. to the lady pitmedden's nurse, a dollar. item, in ja. haliburton's, tua merks. item, to a poor woman, a mark. item, for a quair of paper, pence. item, to the barber, pence. item, to the kirk basin, pence. item, given to my wife, a dollar and a halfe. item, given hir, tua dollars and mark. item, spent in ja. haliburton's, marks. given to my wife, tua dollars. given to the barber, a pence. given for a timber comb, pence. given on other uses, pence. item, in the taverne, pence. item, to my wife,. pence. item, on the of april given to my wife for the use of the house that moneth, dollars. upon win at sundry tymes, shilling. item, to the barber, pence. upon other uses, pence. item to the kirk deacon for a year's contribution dollars. [ ] wages of a nurse sixteen dollars, or about £ yearly, double the wages of an ordinary woman servant. [sidenote: [this money is repayed me.][ ]] [item, payed out for my lord provest's use and by his vreits[ ] a hundred merks and dollars to marie hamilton in pairt of payment of the right she had upon popill][ ] which being joyned with the former makes up exactly the haill mks. receaved by me from my father on the 't of march last. [sidenote: [which money is yet owing me.][ ]] [ ] writs. [ ] erased in ms. then out of dollars receaved in a consultation, i gave first to the maid at dudingstone, a mark. to the kirk broad their, a mark. item, to rot. craw, a shilling. item, for confections at bervick, shillings. item, to idington's man, a mark. item, at pople for shoing the horse, item at auldcambus for brandy to the dutchmen, a shilling. item, to a barber at hadinton, pence. item, given to my wife, shiling. item, to the kirk broads, a shilling. item, given to my wife, shillings. item, spent at leith and else wheir, shilling. in the beginning of may , my father and i having made our accompts he was debitor to me in the soume of merks as resting of mks. of my annuity from lambes till lambes (for on the of march last i got from him mks. of the , hence rested only mks. of that years annuity) and i was found resting to him the soume of pounds sterling or merks[ ] as tuo years maill of my dwelling-house[ ] videlizet-from witsonday (at which i entered to it) till whitsonday nixt approaching , which being deducted and retained by my father in his oun hand, of the mks. their remained merks; wheirof i receaved at the said tyme from my father merks in money, wheirupon their rested to me behind of my annuity preceiding lambes just mks: and i gave my father a discharge of the said mks. of house maill, and of the said mks. receaved by me in money, making togithir ij mks, which with the preceiding mks. gotten by me on the of march last makes up merks in all. [ ] this is normal. £ equal to eighteen marks. [ ] his house rent was £ a year. out of this mks. receaved from my father on the of may , imprimis, given to my wife for paying hir meal and hir children's quarters, etc., dollars. item, for quaire of paper, pence. item, for my decreit and charging rot. johnston, pence. item, on other uses, tua shillings. item, on win with mr. pat. hamilton, a shilling. given to my wife on the of may for the use of the house, ij dollars. which making up dollars and more compleit the merks, so their remains mks. behind, out of which imprimis: in haliburton's with sam. cheisley, shiling. item, to the kirk broad at dudiston, pence. item, to the barber, halfe a mark. item, in masterton's with g. gibson, shilling. item, to will. sutherland, a mark. for g. burnet's reply and conferences, shillings. to mr. mathew ramsay's nurse, a dollar. for a pint of win their, shilings. for copieng a paper, shiling. item, for mum and walnuts, pence. item, at the kirk door, pence. item, for win and sugar, pence. given to my wife for furniture to my cloaths and hir oune goune, dollars. item, in haliburton's for mum, shiling. item, upon seck, shiling. item, in james haliburton's, pence. item, given to my wife, a dollar. item, at the kirk door and on other uses, pence. item, to jo. steinsone, gairdner, pence. item, to my wife to be given to hir washer and other uses, dollars. item, to lancelot ker for copieng a book to me first, a dollar. item, given to my wife, dollars. upon other use i remember not, dolars. this is on mks. item, on coffee, the poor and other uses, shillings. item, given to my wife to pay hir servants fies on the of may , ij dollars. [lent to mr. jo. w.][ ] repayed me [ dollars.][ ] item, upon mum, pence. item, for the provests last act, to jo. trotter in his improbation, shilling. for a quaire of paper, pence. given to my wife on the of june, , dollars. in james haliburton's, pence. payed for pair of shoes, shillings and a groat. on a quaire of paper and other uses, a mark. [ ] erased in ms. this is near another merks. item, given to my wife on the day of june , dollars. to joseph the barber, a shilling. item, in ja. haliburton's, pence. item, for a timber chair, pence. item, on leith on the race day, shillings. item, at the kirk door, pence. for the post of a letter from my goodbrother, pence. item, in maistertons with young idington when he went away, shiling. at dinner in haliburton's, pence. item, to the barber, pence. item, upon other uses, pence. item, to my father's woman who keips the child george, given by myself and my wife, dollars. item, given to my wife, a dollar. payed to the coallman, lb.[ ] item, upon paper and ink, pence. item, in ja. haliburtons, pence. item, given to my wife for buying a scarfe, hood, pence. fan, gloves, shoes, linnen for bands, etc., dollars. [ ] this is one of the few instances in which an item of expenditure is stated in pounds. this is another merks. and which compleits the haill merks receaved from my father on the of may . upon the of june i receaved from william binning a years salarie as tounes assessor which he was owing me for the year wheirin he was tresurer, being lb. scots, which is about merks, out of which: imprimis, for a pair of net leather shoes, shillings. item, in painston's with mr. todridge, shill. item, given to my wife partly to pay margaret neilsons fie and partly for other uses, dollars. for a triple letter its post for rome, pence. item, for seing the play called the spanish curate, halfe a dollar. item, for cherries to kate chancellor their, halfe a dollar. item, theirafter in aikman's, pence. item, at the kirk door, halfe a mark. item, spent when i was at liberton kirk, shillings. item, for thomas the rymer's prophecies, pence. for the lords answer in fairlies case, a dollar. item, given to my wife to compleit margaret neilsons fie during the haill tyme of hir service besides what was payed hir formerly, dollars and a mark. given to my wife for sundry uses, dollars. to my sone john's nurse, merks. item, to buy paper etc. to him who copied me mckeinzies criminals, shiling. item, payed at sundrie tymes in the taverne, pence. item, for a dozen of silver spoons wying tuo onces the peice in all onces at shillings and pence per once, making each spoon to be ellevin shillings sterling,[ ] lb. for i gave them in exchange old silver spoons, which fell short of new ons in shillings sterl. upon the want of weight, and the accompt of the workmanship, so they stood me in all as i said before pounds scots. item, payed to the ailman for are accompt of aill furnished, lb. [ ] price of silver. this makes near the lb. receaved from bailzie binnie. item, in the end of june receaved from william broun, agent for the borrows, in their name and behalfe, my pension of lb. sterl., being for the year praeceiding whitsonday ; out of which: imprimis, given to my man when he brought it to me, a dollar. item, to the barber, a pence. to the kirk broad, halfe a mark. item, on coffee, pence. item, for reusneri symbola imperatoria to the janitor, pence. item, to him for the particular carts[ ] of lothian, fyffe, orknay and shetland, murray, cathanes, and sutherland, at p. the peice, pound. item, at pitmeddens woman's marriage, given by my selfe and my wife, dollars and a shil. item, on halfe a dozen of acornie[ ] spoons, shillings. item, payed to adam scot for a mulct in being absent from a meiting of the advocats, shiling. item, payed to edward gilespie for my seat maill[ ] from whitsonday to whitsonday , lb. item, to the copier of mckeinzies criminalls, a mark. item, to the barber, halfe a mark. to the kirk basin, halfe a mark. given to my wife, a mark. item, on brandee, shilling. given to m'ris mawer in charity, shiling. item, payed in pat steills, a mark. item, on the of july given to my wife, rix dollars. upon win in rot. bell's house, shillings. item, at the presidents man's penny brithell, a dollar and a pence. in h. gourlay's with d. stevinson, shiling. [given to my wife to buy me a pair of worsted stockings, shillings.][ ] item to the barber, a pence. item, tom gairdner for bringing cheerries from abbotshall, a shiling. to the kirk broad, pence. item, for mounting my suit of cloaths with callico, buttons, pockets, etc., dollars. item, to the taylor for making them, a dollar. item, to walter cunyghame for keiping our gounes, a dollar. item, upon cherries, pence. item, in painstons, a shilling. item, to the copier of mckeinzies criminalls, mark. item, for seing the maidens tragaedy for my selfe and mr. william ramsay,[ ] a dollar. at the kirk door, pence. to the barber, halfe a mark. in aickmans after the comedy, a mark. in ja. haliburtons, a mark. item, at a collation also their, shiling. item, at collations theirafter, shillings st. upon the of august given to my wife for the use of the house that moneth, dollars and a halfe. [ ] price of maps. [ ] this word, distinctly written, looks at first like acomie, but is no doubt the word acornie (french, _acorné_, horned), which jamieson defines as a substantive, meaning 'apparently a drinking vessel with ears or handles.' he quotes from _depredations on the clan campbell_, p. : '_item_, a silver cup with silver acornie, and horn spoons and trenchers.' it seems more probable that the word in both passages is an adjective, applicable to spoons, and descriptive of the pattern. [ ] seat rent in church. [ ] erased in ms. [ ] price of theatre. which makes up the full lb. sterling received by me from the borrows. the nixt money i brok was some given me in consultation this summer session, or in payment ather by the gairdner or rot. johnston, who had the loft,[ ] mr. jo. wood or other, making in all as i have every particular set doune in writing beside me about merks and upwards, out of which imprimis the said of august given farder to my wife for the use of the house, dolars. item, to samuel colvill for his grand impostor discovered, dollars. item, to him who brought home my session goune, a mark. to rot. meins man when he brought me the confections the nixt day after the tounes cherry feast to the exchequer, pence. for the new help to discourse, pence. to the barber, halfe a mark. to the kirk basin, halfe a mark. for quaire of paper, pence. for quaire of great paper for copieng the statutes of the toune of edr. theiron, shilling. to grange[ ] his man, a mark. to the barber, pence. to the kirk bason, pence. to will sutherland, a mark. given to my wife, a shilling. upon win with rot. hamilton the clerk, a mark. for evelins publick employment against mckeinzies solitude, pence. spent in arthur somervells, a mark. spent in ja. haliburtons on night, mark. for carieng a book to hamilton, pence. to the barber, pence. for a quaire of paper, pence. to the kirk basin, pence. for a double letter from my good-brother sir androw r., shilings. to my nurse when she came to sie me on the of august , a dollar. item, given to my man, a mark. item, upon sundry other uses not weill remembred by me because small, shil. to the barber, pence. upon seck with mr. innes my lo. lyons clerk for granges armes, pence. upon pears and plumes, pence. to the kirk bason, pence. item, upon seck, pence. item, in mary peirs's with stow and john joussie, shiling. [ ] parts of his house sublet. [ ] william dick of grange, son of william dick, a younger son of sir william dick of braid. his grand-daughter and heiress, isobel dick, was married to sir andrew lauder, fountainhall's grandson and successor. [after this portion of the ms. only selections have been made.] for the gentleman's calling, a shilling. for the guide to gentlewomen, mark. for the colledge of fools, pence. item, for a letter from sir androw r. from paris, pence. for donning's vindication of england against the hollanders, pence. for le tombeau des controverses, pence. for comoedies, viz. love in a nunnery, marriage a la mode, epsom wells, and mcbeth's tragedie at p. the peice, shils. and a groat. upon morning drinks for sundry dayes, pence. to joseph chamberlayne for trimming my hair, pence. to thomas broun for howell's familiar letters, shilings stg. for every man his oun doctor, shillings. for the journall of the war with holland in , shillings. for the mercury gallant, shillings. for the rehearsall transprosd, pence. for the transproser rehears't, pence. on morning drinks and other uses, a mark. for stubs non justification of the present war with holland, marks. for the present state of holland, shiling. for halfe a mutskin of malaga with pat. wause, pence. to samuell borthwick for letting blood of my wife, mark. to ja. borthwick's other prentise that was with him, a mark. for a mutskin of sack in ja. deans at the cannogate foot, pence. i had receaved from thomas robertsone thesaurer to the good toune on the of august first ib. sterling for a years pension due to me by the toune from lambes till lambes : as also i got at the same tyme ane years annuel rent of the principall soume of merks he is owing me by bond being from lambes till lambes last , which was only merks, because he retained mks. and a halfe or ib. scots of the ordinar annuelrent of per cent. for quarters of a year, vid., from mertinmas till lambes last , conforme to the act of parlia. made in ,[ ] and first out of the said lb. sterling (being / merks) of pension given: [ ] see note, p. . imprimis to granges man when he brought over the apples and pears, a mark. item, on the of october to my wife to buy hir great chimley with over and above hir old one, which she gave them in, dollars. in guynes with mr. wood, mr. c. lumsdean, and others, pence. for taking out the extract of granges blazoning, first to the lyon himselfe, [ merks.][ ] this is repayed me. then to mr. rot. innes his clerk, [ merks.][ ] this also. to wil. sutherland when he went to grange with his patent of his bearing, a mark. at dinner in ja. haliburtons with mr. gray the converted papist, shiling. at jo. mitchells with mr. pollock the merchand and mr. gilbert, shiling. to j. mitchell's man who lighted me home, pence. given to wm sim for copieng to me the compend of the statutes of edenbrugh being. rix dollars. just quaire of paper, which rix dollars makes just pence the sheit; its only a shilling lesse. [ ] erased in ms. item for a mutsking of sack with mr. garshoires, a shilling. in mr. rot. lauder's when we saw his wife, a dollar. to my man androw bell to buy a bible and a knife with to himselfe, a rix dolar. on the of nov'r, the day the comissioner came in, spent with mr. thomas patersone, shiling. on the ij of nov'r given to my wife more then hir monethes silver to perfit the price of hir black fringes to hir goune, which stood hir lb., tua dollars. for temple's observations, shiling. to the parsone of dyserts woman when she brought over the ham, a mark. at mr. david dinmuires woman's brithell, a dollar and a groat. for quean margaret of france hir memorialls, pence. for a black muff to my wife, ij shillings. for buttons to my shag coat, shiling. for the kings letter to the parl. of scotland, pence. casten in at my servant john nasmith's wedding on the of dec'r, rix dolars. item, to the music, a mark. given to my wife to cast in, rix dolars. given in charity to on christian cranston, a dollar. item, given to my wife, a dollar. item, on the of dec'r given hir, dollars. item, in this money their was a dollar of ill money. the nixt money i brok upon was dollars (wheirof of them ware legs[ ]), which i had receaved at sundrie tymes from severall parties in consultation money, conforme to a particular accompt of their receipt besyde me. [ ] see introduction, money. out of which payed imprimis to mr. ja. hendersone for ja. sinclar of roslin in the begining of dec'r to compleit the payment of the bill drawen by sir androw ramsay upon me of lb. shillings scots money conforme to roslin's receipt of the haill bill. mks. in legged dollars,[ ] so that their remains behind of that consultation money receaved by me before december about rix dollars and some more, out of which for loydes warning to a careles world from t. broun, pence. for seing marriage a la mode acted, for my selfe and mr. j. wood, a leg dollar. for m.a. antoninus his meditations on himselfe, pence. the nixt money i made use of was lb. scots in ij rix dollars[ ] receaved by me from george patersone the wright for his house maill before whitsonday last , the other aught lb. of the lb. being allowed to him in ane accompt of work. [ ] this works out at about s. / d. for each leg dollar. [ ] dollar / d. to on lilias darling in charity, pence. given to my wife on the of januar , merks. payed in ja. haliburtons with mr. gabriell semple, shiling. item, on the of january to give in hansell being hansell monday, marks. item, with mr. robert lauder, clerk at dumfries, shiling. to mr. peirsone for writing the observes out of the old books of parl. secret councell and sederunt, merks. to criple robin, a pence. to him who copied mckeinzies criminalls tome in compleat payment to him, merks. item, for a book anent the education of young gentlemen, shiling. in sandy bryson's, pence. to the contribution for the prisoners amongs the turks, a mark. to will sutherland, pence. given to walter cunyghame for keiping our gounes, a dollar. given to my wife on the of february , the mk. in ij dollars and a halfe. for lucas speech, the votes and adresses of the house of commons and the relation of the engagements of the fleets in , pence. to thomas broun for parkers reprooff to the rehearsall transp., shillings stg. to him for the rehearsall transprosed. d part, shilling. on mum with mr. r. forrest, pence. upon sweities, pence. on win at rot. gilbert's bairnes christning, pence. for fergusone against parker about grace and morall vertue, shilings. for the art of complaisance, shil. for the articles of peace, shil. item, with mr. rot. wemyss, shiling. to the kirk deacon for a yeirs contribution in march , rix dollars. spent with mr. william ramsay, pence. for the proclamations against duells, and that about the e. of loudon's annuity, and upon sundrie other uses, a mark. with muire of park, pence. given to hir, my wife, to give to arthur temple ane english croun which belonged to mr. john wood. to my wife to buy a petticoat of cesunt[ ] taffety, dollars. for gudelinus and zoesius deffendis, pence. upon win with mr. mathew ramsay, a mark. given to my wife on the of april , ib. sh. [ ] query, 'seasoned.' to my wife to help to buy hir cow, for which she gave ib. scots,[ ] and which ib. s. scots just compleited and exhausted the , ib. shil. merks receaved by me from my father on the of februar last . as for the other ib. shillings that rested to perfit the price of the cow, i gave that out of the other money i had besyde me. [ ] price of a cow. a dollar and a halfe that was owing me by rot. craw, and was repayed by him to me, was given to my wife to buy lyning for my new black cloath breatches. payed for limons, pence. for the pamphlet called the spirit of the hat, pence. in drinkmoney for making my new cloaths, a mark. given to my wife, tua dollars. given to hir to pay for linnen bed sheits bought by hir, a dollar. given in the contribution anent the burnt houses, a dollar. for the book of rates of the custome house of rome, pence. the nixt money i made use of was dollars given me in consultation by the toune threasurer of edr., on the of aprill , when we consulted with my lord advocat about the rebuilding of brunt and ruinous houses with stone. out of which for a discourse by l'estrange upon the fischery, pence. of boull maill, pence. for my dinner on sunday with mr. wm. patersone in guines, shillings. au commencement du mois de may j'avois cent marks d'argent en vingt et trois thalers imperiaux deposez chez moi par monsieur le bois quand il alloit hors cette ville-cy, a fin les lui rendre a son retour [je les rendu.][ ] de cette monnoye je pris premierement. [ ] interlined. for a sword belt, pence. to jo. nasmith for morning drinks, etc., pence. of boull maill, pence. in w. cunyghames at the linktoun of abbotshall, a groat. to my lord abbotshall, and given by him to tom gairdner, pence. for a quart of win in mr. george ogilbies of kirkcaldy, pence. to david colyear, a groat.[ ] with mr. lundy, minister at dysert, and others, shill. to the beggers, pence. to tom gairdner, a groat. to george gairdner, pence. for oranges, a groat. for lentuli dubia decisa, a dollar. to the beggers at sundry tymes, pence. with androw young, halfe a mark. with rot. campbell, apothecar., pence. to hary wood, mr. w.r.'s man, pence. with mr. wm. ramsay in james haliburtons, pence. for my part of the dinner on sunday at the west kirk, pence. for a horne comb, pence. for andrews morning drinks dayes and some other things, pence. to comisar aikenhead's masons, a shilling. [ ] see note, p. . woila comment je depencay ces cent marks pour quelles je demeure debtour an monsieur le bois.[ ] [ ] in margin: cette monnoye lui est payé comment il apparoistra cy dessous. then on the of june my father and i compted, and we found i had receaved all my annuities due præceeding martinmas , and that the last money i got was merks on the of february last , and which compleited that quarter of my annuity which ran from lambes till the martinmas theirafter; then we considered that i was owing him ane years rent and maill of my house, viz. pounds sterling from whitsonday till whitsonday last past in (all the former years maill being payed to him, as is marked supra). then we proposed the deduction of on of of the annuel rents imposed by the act of parliament made in [ ] for the space of a year, viz., from mertinmas till mertinmas , which tuo particulars of the maill and the retention being deducted, viz., lb. sterling for a years maill being lb. scots or merks being allowed my father and merks being retained by him as the deduction due off merks, which is the halfe years annuity from mertinmas till whitsonday , which tuo particulars makes merks of my merks; wheirupon their rested to be given me of the said merks merks, which soume i only receaved the forsaid day of june in money and gave my father a discharge of the haill merks due to me by him as half a years annuity from mertinmas till whitsonday , bearing alwayes that deduction was given him conforme to the act , and in regard he seimed unwilling to give me any discharge in writing of my house maill to be in my custody, he shewed me in his minute book of receipt that he had marked he had such a day got payed him by me lb. scots as a year maill of my house fra whitsonday till whitsonday , as also in another place wheir he hes written doun the receipt from me of lb. scots as being years maill of my house, viz. from whitsonday , which was my entry, till whitsonday ; and which memorandum is all i have for a discharge to show my payment: only he affirmed their was no hazard in regard he was to name me on of his executors with the rest of my brothers. but in regard thesse years i had possest i had never given him in any accompt of my debursements on the said house, in glasse windows, broads or others, he ordered me to give him in the compt theirof that he might pay it me. [ ] in granting a supply of , lbs. scots to charles ii., assessed on the land rent according to the valuations, the parliament, 'considering it just that personall estates of money should beir some proportion of the burden,' enacted 'that every debtor owing money in the kingdom' should for one year, in payment of their annual-rents (interest) for that year 'have reduction in their own hands of one sixt pairt thereof,' and pay only the other five parts. the legal rate of interest was six per cent. to my wife, a dollar. given also to hir on the of june to buy a suite of french stripped hangings with, which stood pounds sterling in pairt of payment of the same, lb. sterling, lb. sterl. or mks. at the well besyde comiston, pence. for my horse hyre to bervick, ij shill. ster. to mr. duncan forbes for doubling[ ] my lord hadington's reduction of athelstanford, halfe a dollar. given to comisar monro for reading the bill about the minister of athelstanford's pershuit, a dollar. for the post of a letter from s.a.r. of waughton, pence. to ja. broun's lad for brushing my hat, pennies. given in with knocks bill to the lo.s of thesaury for seing skelmurlyes signator, a dollar. to the woman who keiped my niece mary campbell, a dollar. for raising and signeting the summonds of reduction in my lord abotshall's name, against the minister of athelstanford, a dollar and a halfe. spent with james carnegie, pence. with mr. wm. morray and others, pence. for black mourning gloves, pence. given to my wife, a dollar. given hir to pay the harne[ ] with which she lined hir hangings and for threid and cords to them, rix dollars. with walter pringle, a mark. for a triple letter from s.a.r., pence. with ja. inglis and others, pence. with mr. john eleis, pence. [ ] copying. [ ] coarse cloth. item, on the of julie , payé a monsieur le bois treize thalers imperiales in compleit payment de ces cent marks, this being joyned to the dix thalers payé à lui in the beginning of june last, dollars. given to david coilzear when he went out to the rendevous of the eist lothian militia regiment to defray his charge their, halfe a croun. at a collation with sir david falconer when i informed him anent the reduction against the minister of athelstaneford, lb. shilling. given to my wife to pay for load of coalls at p. the load, and for other uses, dollars. for ziegleri dissertationes de læsione ultra dimid. de jure clavium, etc., pence. to comisar monro for calling and marking the reduction against the minister of athelstainfurd on the of july , a dollar. item, the same day given to him for reading a bill desiring our reduction might be considered and tane in presently and to stop the said minister's report in the menu tyme, a dollar. item, on the of july , given by my wife and my selfe, at mary scot, my fathers serving woman, hir pennie wedding, dollars. item, to the fidlers, pence. the nixt money i spent was some dollars given me in sundrie consultations as is marked besyde me in a paper apart. with merchinston at dairymilnes, shilings. for the empresse of morocco, pence. for shutles[ ] observations upon the said farce revised against dryden, pence. at arthur somervells, pence. le de juillet , je empruntée de monsieur le bois cent marques en vingt et trois thalers imperiaux de quoy premierement. [ ] settle's. see p. . donneé to william stevinson, merchand, for compleiting to him the price of my french hangings which my wife bought from him at lb. sterling, and wheirof he receaved lb. st. before on the of june, as is marked. i say payed to him, lb. sterling. for my dinner on a sunday, pence. spent at the fountaine, pence. item, spent at tom hayes and elsewheir by my selfe, pence. on the of august given to my wife to pay of hir women jonet nicolsones fee when she went away from hir, dolars. for sir david lindsayes poems, pence. for the baron d'isola his buckler of state and justice, pence. for the interest of the united provinces being a defence of the zeelander choice rather to be under england then france, pence. item, given in of the change of that lb. sent me in from patrick lesly of my lord abbotshalls rents, pence. to the penny wedding at gogar, pence. on botles of botle ale, pence. on the of august given to joan chalmers the midwife when my wife was brought to bed of hir child and 'd sone, rix dollars. to david coilzear for to put tuo shoes on the horse, a mark. septembre donnée et payé à henry le bois an nom et sur le epistre de monsieur jean du bois, son frere dix thalers imperiaux et dequoy ledit hendry on'a donné une quitance, rix dollars. on the of september payed to mr. archbald camron for registrating my sone androws name with some of the witnesses, a dollar. on the of septr. payed for a new razor, shillings. payed to thomas wilsone kirk thresurer because my sone was not baptised the tyme of sermon, a rix dollar. payed for a collation i gave to s.g. lockhart, w. murray, w. pringle, etc., lb. ij shill. scots. item, payed to edward gilespie for a years maill of my seat in the church, viz., from whitsonday till whitsonday last, and got his discharge of it, lb. scots. the nixt money i made use of was merks i receaved on the of september from thomas robertsone, being a years annuel rent of the principall summe of mks. owing by the said thomas to me by bond, viz., from lambes till lambes last (which interest is indeed at per cent. merks), but in regard by the act of parliament their was deduction of on of to be allowed for the quarter from lambes to martinmas , theirfor merks was abated of the full annuel rent upon the said accompt, and i receaved only the forsaid mks. and discharged him of a years annuel rent including the deduction _per expressum_. item, on the of september , payed to john cheisley of dalry, younger, in presence of his brother james lb. scots in rix dollars for the maill of the chambers i possest from him in brunsfield,[ ] by the space of moneths in the last summer, lb. scots in rix dollars. item, spent that of october , that i quite edenbrugh on the kings proclamation of banishment against the debarred advocats, pence. [ ] summer quarters. in october my wife counted with george patersone, wright, who had possest the low roume[ ] of our house from whitsonday till whitsonday last , and thairupon was owing me lb. scots of maill, and receaved in from him onlie lb. scots, the other lb. being allowed him for a compt of work furnished by him to us, and wheiron shee gave him up my discharge to him of the wholle lb. as a years maill of the said house. this lb. scots was waired out and employed upon my house. [ ] part of house sublet at l. scots. on the of january i receaved from my father merks scots, which compleited all my annuityes due by him to me by vertue of my contract of marriage preceeding candlemas , and i gave him a discharge accordingly: for on the of june last i discharged all preceiding whitsonday (having only received from mertinmas till whitsonday for that halfe years annuitie instead of merks only merks because of the retention of on per cent.[ ] by the act of parliament) and receaved then mks. in part of payment of the halfe years annuity betuen whitsonday and martinmas . [ ] one per cent., i.e. on the capital sum of , merks for which his father had given him a bond, bearing interest at the legal rate of per cent., equal to merks per annum. see note, p. . on a butridge[ ] to my hat, etc., pence. [ ] a form of spelling buttress. see murray's _new english dictionary_, s.v. compare jamieson, s. vv. rig and butt. it may mean the lace or band tying up the fold of a cocked hat. item, on the of januar when i returned back to hadinton[ ] i took with me dollars, which keip't me till the of februar theirafter. the particulars whow i spent and gave out the same is in a compt apart beside me. on the forsaid day of januar i left behind with my wife the remanent of the merks i had receaved from my father, taking of the foresaid dollars, viz., merks and rix dollars. of which money on the of february i find she hath debursed first a hundred merks, item, fyve dollars more, so their is now only resting of the money i left with hir about merks. [ ] he had retired to haddington when 'debarred.' out of the forsaid merks and dollars, i find shee had payed lb. scots to patrick ramsay for moneth and a halfes ale, furnished by him. item, on accounts in the creams[ ] to john nasmith, to the baxters for win, etc., above lb. scots. and the rest is given out upon other necessar uses. [ ] krames, the shops round st. giles church. for s.g. mck's[ ] observations on the act of p. , anent bankrupts, pence. for binding the book of cragie's collections and some other papers, shills. stg. for fourbishing my sword and giving it a new scabbord, shils. st. for a candebec hat, shils. st. for quarters of ribban to it, pence. on oranges, pence. for the share of my dinner in leith, the race day, a dollar. item, for my part of the supper in caddells when the advocats all met togither, lb. scots. [ ] sir george mackenzie. on the of march i receaved from james sutherland, thresaurer of the good toune of ed'r. lb. sterling as a years pension or salary owing to me by the good toune as their assessor, from lambes till lambes last , wheirof and all years preceiding i gave him a discharge. for the articles of war, pence. for halfe a pound of sweit pouder, shils, sterl. on the of march i receaved from andrew young in name of my lord abbotshall, mks. scots (their was rix dollars of it ill money which my lord took in and promised to give me other instead of them) wheirupon i discharged the said a.y. and lord abbotshall of the said summe of merks in payment and satisfaction to me in the first place of lb. s. and p. owing to me by the said l. abotshall, as being payed out by me at his direction and order in aprill (sie it marked their) to mary hamilton for merks, and hir papers being in mr. john sinclar minister at ormiston his hands, he alledged their was lb. s. and p. owing him and would not give them up till he ware payed, wheirupon i at my lord a's and hir order gave his sone mr. james merks and rix dollars and retired them: item, for the remanent of the mks. i accepted it in satisfaction and partiall payment and contentation to me of the bygane annuelrents (in so far as it would extend) of the principall summe of mks, yet resting by the said lord abbots: of , mks. of tocher contained in my contract of marriage and which annuelrents ware all resting owing to me from the terme of lambes , so that it will in compting pay me a yeir and a halfes annuelrent, viz., from the said lambes till candlemas , and about lb. scots more in part of payment of the termes annuelrent from candlemas to lambes : so that i may reckon that their is more then years annuelrent of that principall summe of merks owing me, compting to the midle of this present moneth of march. with mr. w'm. murray and blackbarrony, pence. for my fraught to bruntiland, pence. for my supper and breakfast at james angus's their, shill. for horses from thence to the linkton, pence. to jo. nasmith to carry him over from fyffe to ed'r with, a mark. to william cunyghame's wife the tyme i staid at his house, shills. st. item, for elles of drogat at pence per elle, dollars. in jo. blacks with mr. a. m'cgill and alexander gay, pence. item, on the or of march last spent by my wife over and above the lb. scots, rix dollars. i left with hir to pay out all hir compts she or i ware owing, and to bring over the plenishing, so that we ware owing nothing to any person preceeding that tyme. all which expenses being cast up they just make up and amount to merks and rix dollars, to which adde the rix dollars of the wholle mks. that ware not payed, their is spent mks., and their rests behind mks. out of which imprimis: on the of may when i went to ed'r., and stayed their till the of may, during all that tyme spent according to the accompt of it particularly set doune in another paper besyde me, dollars. item, payed for a cow,[ ] lb. scots. donné a ma femme et emprunté d'elle de rot. craw, a dollar. item, spent with mr. alex'r. mcgil and captain crawfurd in kirkcaldy, lb. ij shil. scots. item, payed to the woman mary[ ] for hir years fie when she went away on the of may , rix dollars. for seing the lionness and other beasts at kirkcaldy, pence. donné a ma femme, pence. item, given hir more to pay the other woman's fee,[ ] dollars and a halfe. [ ] price of a cow. [ ] apparently his maidservants. receaved from john broun, elder, wool seller, lb. scots on the of june , and that for a years maill of the low chamber and sellar possest by him from me, viz., from witsonday till whitsonday last , and wheirof i gave him a discharge. for proclamations, pence. to henry mensen for cutting my hair, shil. for a quarter's payment with my man[ ] begun on the of june to the master and doctor of kirkcaldy scooll for learning him to wryte better, to read latin, etc., shilings scots. on the of july given a la servante joannette smith qui alloit avecque mon fils merks ainez a londres par mer pour leur d'espences and shill. du voiage, six livres sterling, ings sterling. donné a la dite servante pour ellememe, a dollar. to mr. tennent, skipper of the ship pour leur fraughts,[ ] shillings sterling. spent at kirkcaldy on rhenish with rot. fothringhame that day, shilings. payed for fraught from kingborne, pence. spent with sir ja. stainfeild and sam. moncreiff, pence. for the 'd tome of alciats commentar on the digests, pence. for the governement of the tongue, pence. for botle aill, pence. for a solen goose, pence. upon a mutskin of seck with raploch and camnetham, pence. for fraughts from leith to kingb., pence. [ ] his clerk. [ ] cost of passage to london. in the beginning of july , their being a convention of the burrows to meet at glasgow, and i finding their was tuo years pension then owing by them to me as their assessor, i gave w'm. broun their agent alongs with him a discharge of the said years pension under trust and upon this consideration that if neid ware he might make use of it for facilitating the passing of his accompts as to that article. in the said meiting and convention they ordered and warranded him to pay all the arrears of my said pension. at his returne back i still suffered the said discharge to remaine in his custody, and in regard i was owing to thomas broun, stationer, lb. scots or lb. sterling for the price and binding of prosperi farinacij jurisconsulti opera omnia, volumes in folio which i had bought from him, ... i assigned the said thomas broun over with his oune consent to william broun for the said summe of lb. sterling, wheiron thomas b. gave me on the of july a discharge of the price of the said books, and william b. became oblidged to pay him the said summe, and he was to be allowed it in the foirend of the accompt betuixt him and me. upon sweities to be tane to my brother george at idington, a mark. for a horse hyre from hadington to idington, a dollar. to obtaine the copie of the king's letter reponing s.a.r.[ ] to the secret councell, pence. [ ] sir a. ramsay. then on the ij of august i was repayed the rix dollars i had given out in the end of july last pour monsieur le bois presse[ ] which i gave a ma femme. [ ] query for pressé. item, on the of august monsieur de la cloche m'a repayé les douze thalers imperiaux qu'il a empruntée de moy (as vous verrez ci devant on the of fevrier ) and i gave them to my wife. the rest of my accompts of depursements given out by me since the of august are to be found in another book like unto this. appendix ii a catalogue of my books i bought since since my returne to scotland from travelling, which was on the of november , i have got or bought the following books. as for the books i had ather before my parture or which i acquired and bought in forraine parts, i have a full and perfit catalogue of them in my litle black-skinned book, and now i have two large catalogues of them all. imprimis, brossoei remissiones ad corpus glossatum, from rot broun, shilings sterl. vinnius ad peckium de re nautica, shil's st. loccenius de jure maritimo, shi's st. corpus juris civ. van leuven, in folios gifted me by bailzie calderwood. mathematicall magick, given me by my unckle andrew lauder. s.g. m'ckeinzies solitude præferred, etc., given me by my father. volumina mascardi de probationibus, bound in folios, from thomas broune, ij dollars. montholon's plaidoiz, pence. received from mr. james ainsley, de in consilia and jason in codicem, for which i gave him in exchange, melchioris cani loci theologici, gaspar pencerus de divinationibus, elliot's method of the french tongue, manasseh ben israel de termino vitæ, bayri enchiridion, densingius de peste, bodechevi poemata, and jacobi hantini angelus custos, in all old books in 'ro and . guillim's herauldry illuminat, got from sir a. ramsay, my brother in law. receaved also from him, bacon upon the union of scotland and england. receaved in alex'r hamilton's in the linkton of abotshall, henricii institutiones medicæ. heylin's cosmographie, best edition, shil's st. and pence. for a great bible of andrew hart's edition, shil. stg. & pence. for broun's vulgar errors, shils. pence. present state of england, vol., pence. morall state of england, pence. acts of the generall assembly, , received from bailzie calderwood. the reschinded acts of parliament, , , , with other papers theirto relating receaved from collonell ramsay, which with the rest of thesse acts which i had beside me, made up a compleit volume of the haill reschinded parliaments from till (except only the acts of the parl. held in june , which i have since that tyme purchast a part and the acts of the parliament held in which i can no wheir come by), all which reschinded acts togither with thesse of the parliament , which are not reschinded, i caused bind togither in on book and payed for the binding pence. the acts of the generall assembly, , pence. papon's arrests of parliament, a dollar. corpus glossatum canonicum, tomes in folio, of the [i have now got the d as is marked infra, so that i have it now entire[ ]] , wheirof it consists, for which i gave dollars. and henricij institutiones medicinæ, to on mr. chrystie. [ ] interlined. receaved from mr. alex'r seaton of pitmedden, criminalia angeli de aretino, albertus de gandino and hippolytus de marsiliis super eadem materia, all in on volume in the gothick letter; for which i gave him in exchange alstedii encyclopaedia. present state of england, d vol., sh's st. midleton and rothesses acts of parliament in , and received from mr. c. wardlaw. knox's cronicle of scotland, shils. st. navarri manuale confessariorum, pence. a collection of the english laws, a dollar. polyd. virgilij historia angliæ, a dollar. zosimus, procopius, agathias, etc., their histories in on volume, a dollar. wimesii theses and other miscellanies in with it, a shilling. thir or six last books i bought from j. nicoll, janitor of the colledge, in may . receaved from the provest s.a. ramsay, s. colvill's mock poem of the whigs, volume, a reflection on monsieur arnauld's book against claud. the english act of parliament laying are imposition upon all law suits. patavius his accompt of tymes. see infra i got ramsey's astrologie. tomes in 'ro of bellarmines. controversies in religion, from the janitor, a dollar. the cause of the contempt of the clergie and ane answer to it, pence. s.g. mckeinzie's morall gallantry, shils. acts of parliament in june , pence. doolitle on the lord's supper, a mark. st. augustines confessions, shils. st. his de civitate dei, shils. st. plinii panegyricus in trajanum, a mark. the act about the taxation imposed in the convention , pence. the clergie's vindication from ignorance to poverty. item, some observations on the answer made to the contempt of the clergie, bought on the of febr. , both stood me, pence. a collection of english proverbs, mark. indian emperor, a comedy, pence. cromwell's acts of parliament in , shils. st. dryden's annus mirabilis, pence. auctores linguæ latinæ, pence. warro, festus, marcellus, isidorus, etc. covenanters plea against absolvers, a shilling. the informations anent the firing of london in , pence. gilbert burnet's letter to the author of jus populi, pence. marciano, a comoedy, pence. a treatise against the common received tenents anent witchcraft, pence. for the seasonable case and a survey of naphtali, shils. st. for milton's traittee anent marriages and their nullities, pence. for baker's cronicle of england, last edition, and blunt's animadversions theiron, both stood me, shillings sterling. taylor's cases of conscience, or ductor dubitintium, shilings sterling. petrie's church historie, shili's sterl. plinius 'di epistolæ cum notis variorum, shill's ster. cromwell's proclamations and acts of councell from til , shil's st. tryrannick love and the impertinents, comoedies, pence. reflections on the eloquence of this tyme, pence. the mysterie of iniquitie unvailled by g. burnet, pence. ane answer to salmasius his defensio regia by peter english, pence. a relation of the fight in betwixt the dutch and english and ane answer of our comissioners to england in ; both of them, pence. argentræi commentarii ad consuetudines brittaniæ, shil's st. peleus his quæstiones illustres and arrests of parliament, shill's sterling. the history and life of the duke d'espernon, shi's ster. volumes of english pamphlets, most of them upon the late troubles in britain, shils. sterling. for the english liturgie or book of common prayer, shillings. mr. g. sinclares hydrostaticks, given me by mr. james fawsyde in cokenie, baronius annalls compendized in two tomes, shills. st. summa conciliorum et pontificum per carranzam shil. st. maximi tyrii sermones, a shilling. benzonis historia novi orbis seu americæ, a shilling. dansæi antiquitates mundi antediluviani, a shilling. demosthenes orationes olynthicæ græce et latine, pence. bucholzeri index cronologicus, shil's st. apulei madaurensis opera omnia, pence. s.g. mckeinzie's plaidings, shil's st. acts of the session of parlia' held in , pence. the new art of wying vanity against mr. george sinclars pence. hydrostaticks bought in dec'r . the tempest, a comoedie, pence. the dutch usurpation, pence. the interest of england in the present war with holland, pence. the dutch remonstrance against the de wittes, pence. the lives of arminius and episcopius, pence. the way of exercising the french infantrie, pence. moonshine or ane answer to doctor wild's poetica licentia, pence. windiciae libertatis evangelii, pence. the persecutions of the reformed churches of france, pence. rushworth's collections, shil's ster. the civill wars of great britian till , mark. charron upon wisdome, shill's pence. manchester al mondo, a mark. g. burnet's reply and conferences against the answerer, shil. st. walwood's maritime laws, given me by the provest sir a. ramsay. my lord foord's practiques, given me by the aird of idingtoun. thomas the rymer's prophecies, pence. reusneri symbola imperatoria, pence. particular carts of shires in scotland, shil. st. for the grand impostor discovered, payed to samuel colvill, dollars. roma restituta gifted me by mr. thomas bell. thir which follow ware all bought from thomas broun in august . a new help to discourse, pence. evelin for publick employment against s.g. mckeinzie, pence. the gentleman's calling, a shilling. [the guide to all gentlewomen, marks.[ ]] the colledge of foolls, pence. douning's vindication against the hollanders, pence. le tombeau des controverses, pence. comoedies, viz.: love in a nunnery, marriage a la mode, epsom-wells and mcbeth's tragedy, at pence the peice, shilings and a groat. [ ] erased in ms. upon the of september i bought from thomas broun thir following, imprimis, howell's letters, shillings st. every man his oune doctor, shillings. the mercury gallant, shillings. the journall of the french their war with holland in , shilings. the rehearsall transprosed, pence. the transproser rehears't, pence. stub's justification of the dutch war, mark. the present state of holland, shillings. temple's observations on the dutch, shilings. memoires of q. margret of france, pence. loydes warning to a carles world, pence. m.a. antoninus meditations upon himselfe, pence. for gregory grey beard, pence. for the education of gentry, shiling. for lucas speach, the comons their addresses, and the relation of the ingadgements of the fleets , pence. for parker's reprooff to the rehearsall transprosed, shillings sterling. for the rehearsall transprosed, d part, shiling. for ferguson against parker about grace and morall vertue, shilings. for the art of complaisance, pence. for gudelinus & zoesius de feudis, pence. for the pamphlet against the quakers called the spirit of the hat, pence. a discourse on the fischerie, pence. the book of rates used in the sin custome house of rome, pence. les exceptions et defences de droit. formulaire des advocats, both thir receaved from g.t.[ ] of touch. [ ] thomson. see p. . cyriaci lentuli dubia decisa, a dollar. ziegleri dissertationes de læsione ultra dimidium, de juribus clavium. commerciorum monopoliorum, etc. epicteti enchiridion et tabula cebetis, pence. for the notes and observations on the empresse of morocco revised, pence. in behalfe of sir elcanah setle. for sir david lindsaye's poems, pence. for the baron d'isola's buckler of state and justice, pence. for the interest of the united provinces and a defence of the zelanders choyce to submit rather to england, pence. for the empresse of mororco, a farce, pence. the honest lawyer, a comedy, and the office of general remembrance, got them from idington in nov'r. . the acts of the assembly, . Ægidius bard in his methodus juris civilis, from edington. les effects pernicieux des meschans favoris par balthazar gerbier. glanvil's way to happines, pence. the bischop of sarisburies animadversions on an arminian book intitled god's love to mankind. joannis a sande decisiones frisicæ, given me by pitmedden. the statute law of england from magna carta to the year . collected by ferdinando pulton. the first part of litleton's instituts of the law of england, with s. edw. coke's commentarie, both receaved from mr. james lauder, shireff clerk of hadington. s.g. mckeinzie's observations on the statute of parliament against banckrupts, etc., pence. for binding the book of craigie's collections and sundry other papers, shil. s. et. the english physitians freindly pill. metamorphosis anglorum, being ane accompt of the state affairs in england from cromvell's death till . memoires de philippe de comines in french, j'ay les aussi en latin chez moy. the ladies calling, given me by my father. wossii elementa rhetorica, pence. reginæ palatium eloquentiæ a patribus jesuitis compositum constructum, ij shillings sterligs. for the d tome of alciat's commentar upon the digests, shillings sterling. payed to thomas broun conforme to his discharge for prosperi favinacii jurisconsulti opera omnia, in volumes in folio, lb. scots, or lb. sterling. and which books i have gifted to the libraire of edenbrugh in june , and upon every on of the volumes, as also in their publisht register of gifts, bestowed on the bibliotheque il a pleu a messieurs les regens de cette université de me donner le tesmoignage qui s'en suit dequoy je ne suis pas aucunement digne. vir summa laude præditus magister joannes lauderus. (joannis prætoris urbani filius de academia cum primis meriti cuius quæsturam agens temporibus difficillimis ejusdem res reditus que anglorum injuria periclitantes fide sua ac diligentia vendicavit conservavit ordinavit amplificavit posteris que florentes tradidit.) juris civilis haud vulgariter peritus ejusdemque in causis publice agendis consultus, civitatis hujus amplæ assessor, postquam academiam suis studiis ornaverat hune librum cum octo fratribus bibliothecæ donavit. anno domini . upon the forsaid bargain with thomas broun anent favinacius (because he had great benefit) he gave me in protegredivibus or the art of wheedling and insinuation, worth and pence or shillings sterling. item, despauter's grammer worth, pence. for the governement of the tongue, by the author of the gentleman's calling, pence. the causes of the decay of christian piety, by the same author. item, his wholle duety of man. item, his art of contentment pence. new jests or witty reparties. joannes voet de jure militari, pence. the thrid tome of the corpus canonicum glossatum, containing the 'tus decretalium clementines et extravagantes communes, shillings sterling. and which 'd volume i still before wanted, having only the first tomes of it. for joannis tesmari exercitationes rhetoricae, marks. de prades histoire de france from pharamond till in small 'vos with pictures, dollars. hermannus vulteius de feudis, shill. . ster. [sidenote: i have now got the rest of his works, which see infra folio 't after this.] nicolai abbatis siculi panor mi tani, his great glosse upon the decretales gregorii from the 't title of the 'd book, viz., de exceptionibus to the end of the haill books of the decretales, so that i want the volume before containing his glosse on the book of the decretals and the 'd till the said title, and the volume after myne upon the 'tus decretalium clementines et extravagants; his wholle glosse consisting of great folios; for he hes written nothing on the decretum gratiani: this broken tome m'a été donné par pitmedden. upon a review i made of my wholle library in octobre i found sundrie books ware nather in this catalogue which containes all them i bought or acquired since my returne to scotland from my travells, nor yet in that other catalogue and list in the litle black-skinned book containing all them i had bought or got formerly ather at home or abroad: and theirfor i gathered their names togither so many of them as i could remember on and wrot them upon or sydes of paper and shewed[ ] it in at the end of my inventar and catalogue in the forsaid black-skinned writ book; ubi illud vide. [ ] sewed. sew is still pronounced like 'shoe' in lowland scots. receaved from pitmedden, dynus ad regulas juris canonici et decius ad regulas juris civilis, in exchange for my ludovicus gomez commentarij ad regulas cancellariae apostolicae et utriusque signaturae [of which i have bought another in october .][ ] [ ] interlined. ratio reconcinnandi juris civil, pence. on the of novembre bought from on william broun, a dragist, the following books, being in number , imprimis, stoboei sententiae groecolat: shillings and pence. ammirati politica ad tacitum, pence. cypriani censura belgica, pence. autumni censura gallica, pence. bouritij judex advocatus et captivus, pence. mynsingeri observationes, pence. gudelinus de jure novissimo, pence. cujacij observationum libri , pence. oldendorpij classes actionum, pence. rolandini ars notariatus, etc., pence. tuldeni jurisprudent. extemporat. pence. aegidij bossij criminalia, pence. mindanus[ ] de continentia causarum, pence. costatij adversaria ad digesta, pence. keckermauni rhetorica, pence. dieterici institutiones rhetorica, pence. carpentarij introductio rhetorica, pence. faber de variis nummariorium debitorum solutionibus, pence. herculanus de probanda negativa, pence. epistolae synesij episcopi gr. lat., pence. bouritij satyricon in saeculi mores, pence. virtus vindicata seu satyra, pence. [ ][ ] rhodolphinus de absoluta principis potestate, pence. [ ] mindanus, petrus friderus. [ ] interlined. from his[ ] shop bought, [ ] i.e. broun's. blunts academy of eloquence or his rhetorick, pence. clarks formulae oratoriae, pence. item from the said william broun on the of november , imprimis, matthias stephani de officio judicis, pence. benevenutus stracca de mercatura, etc., pence. langij loci communes seu anthologia, pence. spankemij dubia evangelica, tomes,. lib. s. mindanus de mandatis, pence. macrobij saturnalia et alia opera, pence. bertrandus de jurisperitorum vitis, pence. farnabij judex rhetoricus, pence. cypriani regneri censura belgica juris canonici, shills. sterl. for platonis opera omnia tomes, shills. sterl. for a book containing some sermons of mr. william struthers anent true happines; item a defensative against the poyson of supposed prophecies, peters complaint, etc., merks. the first three parts of the famed romance cleopatra. or litle paper books all wrytten with my oune hand on miscellany subjects anno besydes many things then wryt be me in other books and papers. reiffenbergij orationes politicae, etc., pence. memoires of the reigne of lowis the of france. doctorum aliquot virorum vivae effigies ad numerum , shillings sterl. luciani opera quae extant omnia gifted me by my client mr. patrick hamilton of dalserf. i had some of his dialogues by themselfes in a book apart of before. for a treatise of maritime affairs, shillings and pence. the case of the bankers and their creditors stated and examined, shills. sterl. shaftesbury and buckinghames speeches in october and november with the letter to a friend about the test against dissenters from the church, shill. and pence. for robertj baillij opus historicum, shillings and pence. for le grands man without passion or wise stoick, pence. for william pens lnglands interest discovered with honor to the prince, pence. for a treatise of human reason, pence. for observations upon it, pence. vide hobs infra in . gassendi exercitationes adversus aristoteleos, item de vita et moribus epicuri, item l'aunoy de varia aristotelis fortuna in academia parisiensi, all bound togither, stood me, shills. sterl. kirkwoods grammatica latina, pence. mitchells answer to barclay the quakers angrie pamphlet, pence. chevreau's mirror of fortune, pence. john bona's guide to aeternity, pence. a rebuke to informers and a plea for nonconformists and their meitings, a shilling. a. couleys poemes and works, shil. ster. boyls seraphick love, pence. item, his excellency of theology above naturall philosophy, pence. his considerationes concerning the stile of the scriptures, pence. thir four last bought at london by my brother colin in may . the naked truth, shillings ster. the answer to it, shillings ster. vide in the other leiff another answer to it. additiones joannis baptistae hodierna ad petri surdi decisiones mantuanas, gifted me in june by mr. william hendersone bibliothecar in the colledge of edenbrugh. lesly bischop of rosse de rebus gestis scotorum, shillings sterling. the conference betuixt archbischop laud and fischer the jesuite gifted me by the lord abotshall. ane book of stiles in octavo. fullers history of the holy war, shillings sterling. caves primitive christianity, shills. and pence. dutchesse of mazarina memoires, pence. durhame on the commands, shillings. skinners lexicon Ætymologicum auglicanæ linguæ, etc., shillings sterling. le notaire parfait, pence. pierre matthieu's st tome de l'histoire de france, i having the nd tome long before, pence. plethonis et aliorum tractatus de vita et morte, pence. judge standfords plees del couronne and king's prærogative, pence. for all the acts of the generall assemblies from till , shillings st. for regiam majestatem in latin with skeens learned annotationes, shills. ster. for mangilius de evictionibus, shills. st. for gildas britannicus epistola, pence. for mr. hugh binnings wholle works in volumes, being a practicall catechisme and sermons, a dollar. for drydens notes on the empresse of morocco. i have setles answers and revieu of them _supra,_ pence. for the siege of granada in parts, a comedy of drydens, shills. sterl. for the libertin, a comædie, pence. menagij amoenitates juris, pence. scipionis gentilis parerga origines de jure publico, cum coleri parergis, pence. for the rules of civility, pence. for hugo grotius his annotata critica ad vetus et novum testamentum in volumes, dollars. in folio from thomas broun in december (vide infra. i gift them in januar ). for herberts life of henry the th of england, pence. for senecæ tragoediæ cum notis faruabij, pence. lord bacons history of henry the of england gifted me by the lord abotshall. as also gifted to me by him on the d of march euclids geometry with mr. jo. dees learned præface; and item gifted ramseys astrologia restaurata et munda with a vindication of it and rules for electing the tymes for all manner of works; item gifted me lex talionis being another answer made by mr. gunning or mr. fell to the naked truth, which see in the praeceeding leiff. for daillees right use of the fathers, shillings sterling. baxters grotian religion discovered, pence. les diverses leçons de pierre mexie et d'antoine du verdier. the pacquet of advices to the meu of shaftsbury in answer to his letter to a friend, supra, pence. lukins cheiff interest of man, pence. mr. smirk or divine a la mode, being a reply to the animadversions on the naked truth mention'd in this and in the former leiff, mark. adam and eve or the state of innocence, ane opera of drydens, pence. for the plain dealer, a comedy, pence. the toune fop or sir timothy, etc., pence. received in june from mr. james lauder in name of mistris ker in hadington. francisci connani commentarius juris civilis in two volumes in folio. i had the first tome already, having bought it at parise. farder received from hir. hottomanni partitiones juris et juris consultus and some other of his small tracts. item, lanfranci balbi decisionum et observationum centuriae . the life of pomponius atticus, etc., pence. a guide to heaven from the world, pence. for the 'd pacquet of advices to the men of shaftsburie, shills. sterl. for madame fickle a comoedy, pence. for johnstons history of king james the 'th minority, pence. midletons appendix to the scots church historie, etc., shills: sterl. burnets memoires of the dukes of hamilton from shillings sterling. doctor hamonds annotations on the new testament, lib. scot. steelingfleets origines sacrae, shills. sterl. glanvills philosophicall essayes, shills. pence. the art of speaking, pence. thir last i bought from thomas broun on the of september . sir george mckeinzies criminalls, lb. scots. the following books to the number of . i receaved from my lord abotshall in october , because he had doubles of them as we inventar'd his books, some of them i had myselfe already. imprimis, a latin and french bible in folio. . the review of the councell of trent. . bacon's resuscitatio 'd part. [ . swinnock's christian man's calling.][ ] given back to the librarie. . rosinus romanae antiquitates. . goodwyns moyses and aaron. [ . ja. colvill's grand impostor discovered.][ ] having another i gave this to mr. alexr. drummond . sympson's compend of the ten persecutions. . brinsley's ludus literarius. . hooll's grammatica latino anglica. . acts of parliament in . . milton's paradise lost . hudibras mock poem. . caesars commentaries in english. . arcandam upon the constellations. . adam out of eden on planting. [ ] erased in ms. a mesme temps je empruntée l'usage de ces sept livres suivans de lui pour les rendre quand il les demandoit. imprimis rutherfuird's lex rex. . wiseman's law of laws, etc. . the accomplish't atturney. . natalis comitis mythologiae. . stephanus praeparative to his apologie for herodote. . imagines mortis et medicina animae. . dom huarto's triall of wits. the following french books ware about that same tyme gifted me by rot. keith of craig. imprimis, mr. wicquefort's memoires touchant ambassadeurs et les ministres publiques. . histoire de la reyne christine de suede. . lettre sur la campaigne en flandre, . for the art to make love, pence. for the countermine against the presb., shils. stg. from john nicol bought on the dec'ris the following books. bodinus de daemonomania majorum, marks. hall's cases of conscience, pence. walker against socinianisme, pence. juvenalis et persius cum notis farnab., pence. sylvestri summa summarum, dollars. scapulæ lexicon græco-latinum, dollars. drusius de tribus-sectis judeorum, pence. item, the book of fortune, pence. vincent on christ's appearance at the day of judgement, ij pence. antonii mornacii observationes ad pandectas et ad codicem, in tomes in folio, at shillings sterl. the tome, lb. scots. gerardus joan: wossius de historicis latinis, lb. scots. christophori sandii animadversiones in istum vosii librum, pence. for divi thomæ aquinatis summa theologica, shillings stering. for wallis due correction of hobs geometrie, pence. lipsius notes on tacitus, pence. dominici baudii epistolæ et orationes, pence. elberti leonini consilia, a dollar. about the of aprill , receaved from abotshall a manuscript containing a most elegant summary and collection of sundry remarkable things from the tomes of st. augustins works. a meme temps je emprunté de lui les livres suivans: manuscripts in latin de decimis, contra erastianos, independentes, de politia civili et ecclesiastica, de controversiis theologicis, etc., of mr. andrew ramsayes: but now i have given him thir back: rosse's pansebeia or view of all religions. grotii de imperio summarum potestatum circa sacra. florus historie cum lucii ampelii memoriali. catonis disticha et mimi publiani by hoole. bought the of aprill from mr. charles lumsdean thir six books, imprimis, andrew willet's hexapla upon exodus and leviticus. volumes in folio, shillings sterling. vide infra in and aprill . shillings sterling each volume. jermynes commentarie and meditations on the book of proverbs, shils. stg. rosse's arcana microcosmi with a refutation of bacon, harvey, broun, etc., pence. the right of dominion, property, liberty, pence. mr. r. baillie's antidote agt arminianisme, pence. heraclitus christianus, or the man of sorrow pence. lo. hatton on status and acts of parlia', pence. kirkwodi compendium rhetorircæ, pence. godolphin upon legacies, last wills and devises, shills. ster. salernitana schola de conservanda bona valetudine, shillings and pence. juvenalls satyrca englished by stapylton, mark and a halfe. the fulfilling of the scriptures. from abotshall: ...[ ] [greek: kaina kai palaia]: things new and old, or a storehouse of similes, sentences, allegories, etc., by john spencer. [ ] word undeciphered. item, receaved drummond's history of the lives of the james's, kings of scotland, with memorialls of state. item, wilson's art of rhetorique and art of logick. item, l'estat de l'eglise by jean de hainault and jean crespin, they being books in number which at this tyme j'ay recu de abotshall. fur a manuscript containing some law dictats of the professors at poictiers and bourge en berry annis and , pence. for masuerii practica forensis with montis albani exceptiones, pence. quintini hedui analecta juris ad titul. decretal de verborum significatione, pence. for jacobi de voragine legenda aurea seu vitæ sanctorum, ij pence. ecloga oxonio-cantabrigiensis; being a catalogue of all the manuscripts in thesse universities, ij pence. mr. d. dickson's therapeutica sacra. the christian education of children, pence. gifted me by mr. wm. henderson: bibliothecar of ed'r, h. cardani arcana politica seu de prudentia civili. gotten from mr. wm. dundas wisseinbachii manuale de verborum signifcatione, item, nota nomico-philologica in passionem christi. annibal trabrotus his enarrationes ad cuiacij paratitla in libros tres prinres codicis, a mark. for a.s. boetius de consolatione philosophiæ et disciplina scholastica, pence. gifted to me by mr. john craig of ramorney, advocat, on the of november , davila's historie of the civill wars of france. leidington's practiques and some other papers bound togither by me at this time. tbe christians patterne or a kempis imitation of christ, pence. for tuo volumes of panormitans commentary upon the decretales, which compleits what i had of him before. item, for giuidonis papae decisiones parlamenti grationapolitanæ and lipsius de constantia, in all books, shillings sterling. for lucas de penna ad tres posteriores libros codicis, pence. for joannis amos comenii janua linguarum in greek; latin and english, pence. i have another in latin, french, and dutch. poemata niniani patersoni gifted me by the said mr. ninian the author. code lowis ou ordannances pour les matieres criminelles. georgii macropedii methodus de conscribendis epistolis, etc., pence. jer. taylor's liberty of prophecieng. lubbertus contra socinum de christo mediatore. aurengzebe and the destruction of jerusalem by titus vespasian, comedies. the life of k. charles the i. the pseudomartyr. ane accompt of the scots greevances anno . mother gregs jests. raphaell holinsched's chronicle of england from william the conqueror till , shillings sterl. an abridgement and written collection drawen furth of the register of the commission for plantation of kirks and valuation of teynds, from till november . catalogus librorum d. jacobi narnij, gifted by him to the colledge of edenbrugh. for mr. dods and cleavers commentary on the wholle proverbs of solomon, shills. stg. for mr. cleaver's commentar on some of the chapters of the proverbs, more amply then in the præceeding commentary, their being only chapters explained in this volume, viz., the , , , , and chapters theirof, enriched with many discourses and doctrines from thesse chapters, not in the former commentarie. gullielmi cocci revelatio revelata, or expositio apocalypse[greek: o]s, pence. ludovici cælii rhodigini antiqutæ lectiones, parisiis . the apology for and vindication of the persecuted ministers in scotland, gifted me by abotshall. for the differences of the tymes, written by mr. david foster, minister at lauder, a mark. erasmi chiliades adagiorum in folio, gifted me by mr. john wood's brother, mr. wood having lost some books lent by me to him, as harprecht, etc. cartwright's commentar upon the proverbs in latin, shillings and pence. rudimenta rhetorica ro'ti brunii, pence. academie francoise pour l'institution des moeurs, in vo, pence. on the of june bought old books, some of them but pamphlets, viz., une recueill des gazettes nouvelles et relations de l'annee , cujacii ad tres postremos libros codicis, des ordonnances de lowis en assemblée de notables, directions for health, naturall and artificiall, resolution de question prouvant qu'il est permis a sujets a resister la cruauté de leur prince, a discourse touching the distractions of the tymes and the causes theirof, the canons and constitutions made by the quakers: for which i payed, pence. the fyre upon the altar, or divine meditations and essayes, pence. the lively oracles, or use of the holy scriptures, pence. atcheson's militarie garden. a picktooth for the pope, item, the apple of his left eye, item the greevances of the scots ministers in , etc. regii sanguinis clamor per morum contra miltonum anglicum, pence. botero des gouvernements des estats in italian and french, pence. mr. traps commentar ou the proverbs, ecclesiastes and song of solomon, lb. shill. bought on the ij of september from mistris forrest in fyffe the ten following books. . erasmi concio de misericordia domini and other tracts, pence. . erasmi encomion moriæ et de lingua and other tracts, a mark. . bezæ responsio ad castellionem de versione novi testamenti, pence. . flores doctorum pene omnium per thomam hibernicum, pence. . sylva locorum communiuni per ludovicum granatensem, pence. . poetarum omnium flores, a mark. . refutatio cujusdam libelli de jure magistratuum per beccariam, pence. . chrysostomes homilies and morals on the ephesians, pence. . virgil in english verse by john ogilbie, pence. . simon patrick's reflections on the devotions of the roman church, pence. having in september casten up the accompt of the wholle manuscript books i have besyde me, i find they are in number of which see more in my other more full catalogues of my books. appendix iii sir andrew ramsay, lord abbotshall _letter by john lauder, lord fountainhall, to his son_[ ] [ ] ms. in possession of sir t.n. dick lauder. the following letter from fountainhall to his son, probably his eldest son and successor, john, is a characteristic specimen of his later style. it holds up to the young man as an example the character and career of his maternal grandfather, sir andrew ramsay, lord abbotshall. [illustration: sir andrew ramsay, lord abbotshall] _'appryll d, ._ sone,--the letters i formerly sent you, tho replenished with the best advyces that ather my reading or my experience and observatione or my paternall affection affoorded, and in thesse important affaires they handled, yet i conceive they might be the less effectuall that they had no other authority to back them but my own. theirfor i am resolved a litle to trye another method, and so put thesse useful precepts in the mouths of some of your ancestors as if they wer allowed for some tyme to arryse from the dead and speak to those descended of them; and i shall set befor you some of their vertues and illustrious actions for ane pattern worthy your imitation, seeing there cannot be ane better direction in the stearing the compass of our lyves then by reading the lyves of good men, espccially wheir wee are nearly related to them, and in the using of this prosopopoea i have no less examples to follow then the prince of orators cicero and the great seneca who to give the greater weight and authority to the moral precepts they delyvered to the people of rome they conjure up the ghosts of scipio, laelius, cato, appius and thesse other worthies, and bringe them upon the stage, teaching their own posterity the principles of vertue which is observed to have left a far greater impression, and have proselyted and convinced the mynds of the hearers more than what the greatest philosophers delyvered only as their own sentiments and opinions. and because it is not usuall to wryte the lyves of men whyle[ ] they be dead, theirfor i will begin with your maternall lyne and sett befor you some of the most eminent transactions wheirin that excellent gentleman, sir andrew ramsay, your grandfather, was most concerned in, with the severall vertues and good qualities that made him so famous and considerable, which ought to be ane spurr and incitement to all good and vertuous actions, and to non so much as to his oun grand-chyld. and because it layes ane great tye and obligation wheir on is descended of ane race that never did anything that was base and unwurthy of a gentleman, theirfor i will also shortly as i can give you ane account of his pedegrie and descent befor i come to descrybe his oun personall merit and actions. for tho the poet sayes true, _et genus et proavos et quae non fecimus ipsi, vix ea nostra voco_, yet to be of ane honourable descent of good people as it raises the expectation of the wurld that they will not beley their kynd as horace sayes, _fortes creantur fortibus_, so they turn contemptibly hatefull when they degenerat and by their vices blacken and sully the glory and honour their ancestors had gained, and they turn a disgrace to the family and relations they are come of. bot to begin: sr andrew was the d sone of mr. andrew ramsay, minister of edr., and mary frazer. he being a sone of the laird of balmaynes, and shee a daughter of the laird of dores, and it being fitt that a man should know his oun genealogie that wheir ane of them has been signalized for vertue it may be ane motive to provock our imitation, and if they have att any tymes been led out of the way of vertue that it may serve for ane beacon and scar-crow to the descendants to hold of thesse rocks and shelves wheir they may see the bones of their friends as the memento of lots wyfe to beware of thesse fatall errors. and tho a man should know the history of his oun nation and not be _domi talpa_, yet there is no part of that history so usefull as that of his genealogie, and therfor i would give you some account of that family of balmayn and of some remarkable things have happened therin. the first of them was john ramsay, sone to the laird of corstoun in fyfe, who being ane handsome young boy was made choyse of to attend ki: ja: d att the grammar school. their was pains taken for another gentleman's sone, who had been bred in the high-school of edr. and both read and wrote better, yet the young king thinking john had more the mean of ane gentleman preferred him, tho choyses of such princes being lyke rhehoboams, not so much founded upon merits as fancy and ane similitude of humor, and i have observed friendship and acquaintance contracted betwixt boyes att schooll to be very durable, and so it proved here, for k.j. d made him on of his cubiculars and then captain of his guards, with this extravagant priveledge that non should wear a sword within two myles of the kings palace without his speciall warrand and licence, which created him much envy and hatred, that for supporting him against the same, he first knighted him and then gave him the lands of kirkcanders in galloway, terinean in carrick, gorgie in lothian, and balmayn in the mernes. all which lands his posterity hath sold or wer evicted from them by recognitions, except balmayn. and tho wee doe not find him taxed as on of the bad counsellors that made ane discord betuixt the said k. james and his nobles, att least not so much as cochran, who from being his master mason he had made e. of marr, and other mean people about him whom he had advanced, yet it was impossible for him to be in so much favour with his prince without drawing the emulation and envy of great and auntient families, who thought non should come between them and their soveraigne. for you will find from our chronicles that this king was on of the worst of all the james's and came to ane fatall end by his variance with the nobility, whom he studyed to humble as factious and tumultuary, bot they thought themselves slighted and disobleidged by his making use of mean men in all offices about him. bot to return to sr. john ramsay. it shewes the kings great affection to him att lundie bridge when archbald e. of angus, called bell the cat (the reason wheirof you know), and the other barons seazed upon cochran and the bad counsellors and hanged them over the bridge, and some of them apprehending ramsay for that same end, the king grasped him in his armes and plead with them to spare him as more innocent than the rest, which was yealded to by the kings intercession. bot after this he created him e. of bothwell, ane title that hes been funest and unluckie to all the three possessors of it, viz., the ramsay, hepburn, and stewart, and which the ramsay bruiked shorter then any of the other two. for after the killing of the king in bannock-burn myln when he had fled out of the battell, the parliament did annull that title of honour, and from that tyme they have only been designed lairds of balmayn. some say he was killed with his master in that feild, bot i have two unansreable arguments agst it. the on is that in severall of k.j. the ths parliats. i find him on of the commissioners as now but joyned two or three in ane deputation. neither had thesse offices att that tyme such splendour and greatness annexed to them as now, and by this it appears the k.j. the th durst not resent his fathers death, yet he took speciall nottice of those freinds who had faithfully adhered to him. instance the iron belt and bitter repartee he gave the lord gray. the second is, that mr. andrew ramsay his great grand-chyld, in his latine epitaph made on him, printed amongst his epigrams, affirmes that he was killed att the battell of floudan with k.j. th, which, if true, he has out-lived j. the d years. i find the said sr. john ramsay's sone hath lived till about the year . for in the sederunt books that year there is ane gift of tutory dative mentioned, making sr robert carnagie of kinnaird tutor to wm. ramsay of balinayne, left ane minor by the death of his fayr., and this sr robt. did afterwards bestow katharine carnagie his daughter upon the said wm. ramsay. the present earles of southesk are lineally descended of the said sr robt. bot wer not nobilitat for years after that. of this wm. ramsay and the said katharine mr. andrew ramsay was their second sone, and being educat in literature, wes sent abroad by his parents to the famous protestant university of saumur in france, where he gave such eminent specimens of his great knowledge that in he was created professor of theologie yr. and i have seen that printed latine oration he had att his inauguration, and tho the scots wer soouner preserved in france than any other strangers, yet it behooved to be extraordinary merits that adjudged the divinity chair to him befor so many candidats and rivals of their own nation. bot being desirous to improve the talents heaven had bestowed on him in his oun countrey, he returned home, and about the year married that vertuous gentlewoman, mary frazer, daughter to the laird of dores, and wes by sr. alexr. arbuthnot of that ilk her uncle by the mother called to his church of arbuthnot in the mernes, bot he being ane star of ane greater magnitude than to be consigned to so obscure ane place he wes, in ,[ ] invited to the toun of edr. to be on of their ministers, which he accepted, and continued their till that he was laid asyde by that prevailling remonstrator faction in the church, because he wold not dissown the engadgement undertaken by james duke of hamilton the year befor for procuring k. ch. the first's liberty, and so continued solaceing himself with that _murus ahæneus_ of a good conscience till he resigned up his blessed soule into the hands of his merciful creator in the end of that year , having, lyke moses of[ ] mount-pisga, seen the designes and inclinations of this island to bring back their banished king which he had much promoted by his prayers; and so this good man, lyke ane sheaff of rype corn, was gathered into his masters barn in the year of his age, a man who for his singular piety and vast reading was the phenix of his tyme as his manuscripts yet extant can prove, so that his memory is yet sweet and fragrant, but especially to those who are descended of him who are more particularly oblidged to imitat his goodness, vertue and learning. bot befor i leave balmaynes family i shall only tell on passage because its remarkable of david ramsay of balmayn, the said mr. andrews nephew. their is ane sheett of paper in form of ane testament wheron their is no word written bot only this, lord, remember the promise thou hes made to thy servant david ramsay such ane day of such ane moneth and such ane year, and then he adds, let my posterity keep this among their principall evidents and subscrybes underneath it his name, and which paper is yet extant and keeped by sr. charles the present laird, bot what the revelation was i could never learn. now to give you but on word of the maternall descent, they wer aunciently thanes of collie, and were come of the great frazer, who was named by the parliat. on of the governors of scotland be-north tay with the cummings till the controversie should be decyded betuixt the bruce and the ballioll in . of thir parents was my lord abbotshall born in may , being their d sone, and from his very infancy promised good fruit by the airlie blossomes of ane sharp and peircing witt, and his two elder brothers having been bred schollars, providence ordered him to be educat ane merchand, bot by his oun industry in reading and his good converse he supplied that defect in his education, and haveing been elected youngest bailzie of edr. in thesse troublesome tymes of the english invading and subdueing our nation in , he behaved so well that provost archbald tod comeing to dye in , he was not only recommended by him bot was lykewayes by the toun counsell judged fittest to succeed him; a step which few or non hes made to ryse from the lowest to the cheiff place of magistracy in the burgh without passing throw the intermediat offices, and which station he keeped till michaelmass . dureing which tyme the toun haveing many aflaires to negotiat att london with oliver the protector, and those whose estates wer sequestrat haveing addresses to give in ather to have the sequestration taken of or are part allocat for their aliment, they all unanimously agreed to employ provost ramsay as the fittest, which he discharged with great dexterity to all their satisfactions; which made some reflect upon him as complying too much with the usurper, bot when a nation is broke and under the foott of ane enemy, it has alwayes been esteemed prudence and policy to get the best termes they can for the good of their countrey, and to make the yoke of the slavery lye alse easy upon our necks as may be: and the toun was so sensible of his wise and equall administration that they after tryall of severall others brought him in again to be provost in , which he keeped for eleven years together more then what any had ever done befor hira, chancellour seton haveing continued for years. when he entered upon this second part of his government he found the toun at the brink of ruine by the cruell dissentions then sprung up betuixt the merchands and trades about their priviledges, bot he lyke ane skilfull chirurgeon bound up and healled their wounds; and being lykewayes sunck under the burthen of debt he procured such gifts and impositions from his mat'ie upon all sorts of liquors that he in a short tyme brought doun their debt from eleven hundredth thousand merks to seven hundredth thousand: and being thrcatened by the lord lauderdale to erect the citadels of leith in a burgh royall, which wold have broke the trade of edr., for preventing therof he purchased the same and annexed it to the toun, and finding that sr. wm. thomson their clerk by his influence upon the deacons of trades nominated and elected the magistrats att his pleasure, he in caused the toun counsell of edr. depryve him, and notwithstanding all the pains he took by brybery of the then statsmen and other wayes to reenter to his place, yet he was never able to effectuat it, and then he procured mr. wm. ramsay his second sone to be made conjunct clerk of edr. bot his death att newcastell some few years after made the designe of this profitable place abortive. our statsmen being att that tyme under great animosities and prejudices against on another, lauderdale, hamilton, and rothes drawing three severall factions, abbotshall, who could make a very judicious choyce, did strike in with lauderdale, and upon his bottome reared up the fabrick of his enshueing greatnes. for by his favour he was both maintained in the provestrie of edr., and advanced to the session privy- counsell and excheqr. this could not but draw upon him the vatinian hatred of the opposite parties. for they saw so long as sr andrew governed the toun of edr. they could not expect non of those large donatives and gratifications which lauderdale was yearly getting, besydes the citizens longed to have ane share in the government of the toun which they saw inhaunced and monopolized by sr andrew and his creatures, so that it was no wonder after so longe ane sun-shyne of prosperity their should come ane storm, that being alse usuall as after a longe tract of fair weather to expect foull, and envy and malice are alse naturall concomitants of greatnes and merite as the shaddow is of the body, and it was never found that good offices done to are society was ever otherwayes rewarded than by ingratitude. themistocles, coriolanus and the old worthies of rome and greece are sufficient proofs of this. and for compassing their end sr james rocheid clerk, sr ffrancis kinloch, who aspyred att the provistrie, and sevll. other burgers wer hounded out to accuse him in the parliat. held in , and money was largely contributed and given to the dutches of lauderdale, and shee considering that his power was now so farr diminished in edr. that he wold not be able for to drop those golden shoures that formerly he did, shee prevailled with the duke her husband to wheedle myn lord abbotshall into ane dimission of all his offices. for plautus observes[ ] in _trinummus_ holds alwayes true that great men expect that favours most be laid so many ply thick on upon another that rain may not win through, which goes very wittily in his oun language, _beneficia aliis benefactis legito ne perpluant_. it is true the duke designed no more by this dimission bot to ward of the present blow, and promised to keep all those offices for his oun behoof till the speat and humour of the people agst him wer spent and runne out, bot the dutchess and others about him did so violent him that he was not so good as his word. they insinuating to him that it was not safe to trust a man of sense and parts whom he had so highly enraged and disobleidged, and that the bringing him back to power was but the putting him in a capacity to revenge himself, and the truth is that has ever been the practice of the inconsiderat mad world to runne doun any man when he is falling, as juvenal observes in the case of sejanus, who brings in the mobile who had adored him the day befor with hosannas crying with displayed gorge, _dum jacet in ripa, calcemus cæsaris hostem_, and it is very fitt that divyne providence tryst us with such dispensations. for if wee had alwayes prosperous gales that is so inebriating are potion that lyke the herb mentioned by homer, it's ready both to cause us forgett our selves and our dewty to god, and i speak it from my oun knowledge that abbotshall was rauch bettered by thir traverses of fortune, for it both gave him ane ryse and opportunity with more leasure and tyme to examine what he had done in the hurry of publick busines, and to repent and amend our errors is in seneca's _moralls_ the next best to the being innocent and not haveing committed thesse faults att all: the french proverb being of eternall truth that the shorter ane folly be it is the better; and tho' that physicall rule a _privatione ad habitium non datur regressus_ be also true in politicks as in physicks that a man divested of his offices seldome ever recovers his former greatnes, yet lauderdale being ashamed of the injustice with which he had treated abbotshall, he made him many large promises of reparation, but ther was never any more performed bot the reponeing him again to his office as ane privy- counsellor to teach us how litle the favour and assureances of great men are to be regarded, being lyke thesse deceiving brooks wherin you shall not find ane drope of watter in the drougth of summer, and to teach us to look up to god and to despyse the lubricity of this world and all its allurements, which is _modo mater statim noverca_, and being blind, foollish, and arrogant, renders all who greedily embrace her alse foollish as herself, and instead of ane substance deludes us with ane empty shaddow of are junonian cloud, and playes with men as so many tinnise-balls. i have oft blamed abbotshall for his high manner of doeing bussines relyeing too much upon the strength of his oun judgement which, tho' very pregnant, yet in his oun concernes might be more impartially judged by other by-standers. i have wisht him, with the marquesse paulet, that he might have more of the complying willow and lesse of the sturdy oak, bot he oft acknowledged god's care of him in not suffering him to lose himself in ane false flattering world; and if it had been lawfull for him to have taken satisfaction in the calamities of others he had the pleasure in his lyfe to see kincardyne, dirltoun, carringtoun, lauderdale, and his other enemies turned out of their places more ignominiously than he. thus wearied with troubles and the death of many of his children come to age, he devotly payed the last debt to nature in january , being the year of his age. this is all i can get at present proposed to you for one pattern and example, the sheat being able to hold no more.' [ ] _i.e._ until. [ ] mr. andrew ramsay, minister of the old kirk in edinr., was professor of divinity and rector of the university of edinr. for six years successively preceeding the th march , att which time he gave up both offices.--note in ms. [ ] _i.e._ off, from. [ ] _i.e._ plautus's observation. abbotshall was a man of great force of character. he was much respected by lauder, who, on his marriage with his daughter, was probably a good deal indebted to him for his first start in professional life. for example, it was no doubt by his influence that he was very early appointed one of the assessors to the town of edinburgh along with sir george lockhart and soon afterwards to the whole of the burghs. to the facts of his life as narrated in the letter it may be added that in the course of his career he acquired extensive estates. besides abbotshall in fife, he became the owner, among other lands, of waughton in east lothian, a place often mentioned by lauder, where his brother-in-law, sir andrew ramsay, junior, resided. the eulogy in the letter is somewhat deficient in light and shade, more so than some other passages in which lauder mentions his father-in-law (see introduction, p. xxxvi). a good deal about abbotshall may be read in sir george mackenzie's memoirs, the following extract from which (p. ) will help to supply the _chiaroscuro_. 'sir andrew ramsay had, by obtaining ll sterling to the duke of lauderdale for the citadel of leith, and other ll to him for the new impositions granted to the town by the king upon ale and wine, insinuated himself very far into the favour of his grace; and by his favour had, for ten successive years, continu'd himself provost of edinburgh, and consequently preses of the burghs; by which, and by having the first vote of parliament, he was very serviceable to lauderdale; who in requital of that favour obtained ll sterling per annum settled upon the provost of edinburgh, and caused the king give him ll sterling for his comprising of the bass, a rock barren and useless. thus they were kind to one another upon his majesty's expenses. in this office of provost he had governed most tyrannically for ten years, applying the coramon good to himself and friends, and inventing new though unnecessary employments within the town, to oblige those who depended upon him. but at last the citizens, weary of his yoke, resolved to turn him out at michaelmas .' the attempt failed at that time. index abbotshall, ; church lands of, . ---- lord. _see_ ramsay, sir andrew. abercorn, lord, . aberlady, , . accounts, extracts of, . acheson, . ---- sir archibald, . ackland, mr., . addestone, , , . adenstans easter and wester, . administration of justice, xxxiv. adrian's wall, . adultery, punishment of, in france, - , . advocates, fees of, in france, , and _n_. ---- suspension of, xxii-xxiii, - , ; meeting of, in cadell's, . aickman, william, . aikenhead, james, death of, . ainsley, james, . airth, earl of, . albemarle, the duke of, his engagement with the dutch fleet, . albigenses, persecutions of, . alexander iii. killed near bruntilland, . alexander ..., professor of law at poictiers, , , , , ; turns papist, . alfred, king, founder of university college, oxford, . amboise, ; arsenal of, . america, theory of the peopling of, . amont water, . anagram of cornelius jansenius, . anderson, john, advocate, death of, . ---- marion, wife of fountainhall, xxiii. anecdotes of the blind, ; of a thirsty cow, ; of preachers, etc., , - , , - , , , , ; of the king of spain, ; the queen of sweden, etc., ; of a faithless frenchman, ; of the earl of cowrie, . angleberne, le baron d', , - . angus, archibald, earl of, . ---- james, . annand, m., distinguishes himself at the siege of candy, . anne of austria, funeral oration on, ; her heart preserved in the val de grace, . _apologetical relation_, and _n_. appeals, law of, in france, . arbuthnot, lord, . ---- sir alexander, of that ilk, . archerfield, . ardrosse of elie, . argyll, archibald, ninth earl of, xxx-xxxiii, xxxv, , , . arley, lord, and _n_. arthur's oven, . ascletarion, a magician, and _n_. astrology, xxxix. athelstanford, . atholl, earle of, lord privy seal, , - . aubigné, the marquis d', . augier, m., . augustines, order of, , , ; augustinian sermon on the virgin mary, - . auldcambus, , - . auldham, . auldhamstocks, . auldliston, . ayton of bannochie, . baccleuch, estate of, . baillie of jerviswood, trial of, xxx. ---- lt-general, . ---- john, advocate, death of, . ---- william, advocate, rebuked by lord newbyth, . baird, sir john, of newbyth, , and _n_, , . balbirny, . balcarres, lady, . bale's _sarro-sancto regum maiestas,_ . balfour, laird of, . ---- of balbirny, . ---- sir david, of forret, , . balgonie, , . ballantyne, andro, minister at coldinghame, . ballincreiff, . balliol college, oxford, . balmanno, lord, . balmayne, , . ---- laird of. _see_ ramsay. balmerinoch, lord, , . balquharge, . balveirie, fife, . banished ministers' manifesto, and _n._, . bannatyne club, institution of the, xviii. bannochie, . barclay ----, . barnbougall, . barnes. _see_ cunningham. bartholomew, st., . baruclan, . bass, the, xvi, , . beaton, alexander, . ---- andrew, advocate, death of, . ---- william, . ---- of blebo, . beatons of balfour, . beaufort, the duc de, kilted at the siege of candy, . beaugency, . beconsfields, . bedlam, . bedlan green, . bell, adam, . ---- androw, . ---- john, . ---- robert, , , . ---- thomas, , . ---- family, origin of the name, . bellenden, lord, . ---- of broughton, . bell-ringing during thunder, - ; for the last agonies, . bels milne, . beltan, , . benedictine friars, , convent of, at marmoustier, ; convent at poictiers, ; wealth of the order, . bernard, st., abbot of clareville, . bernardines. _see_ fullions. beroalde de verville, francois, and _n._ bever castle, . biccarton of lufnes, . bickerstaffe, sir charles, . binnie, . ---- laird of, . ---- bailzie, . binning, william, , , . biron, duc de, and n. biton, madame, . blacader of that ilk, . blacarstoun, . black. jo., . blackbarrony, laird of, . blackford burn, edinburgh, . blackfriars church in glasgow struck by lightning, . blaickburne, . blaikerston, . blair of carberrie, . blair, rev. robert, anecdote of, . blanerne, . blantyre, lord, . blasphemy, punishment of, . blind men, anecdotes of, . blois, , description of, , castle of, . blythswood, . bodley, thomas, . bogie, , . ---- of bannochie, . bonar, jo., of bonytoun, . bonnévette, . bonnymoon ----, . bonytoun, - . books, catalogues of, , , - , - . bordeaux, ; torture practised in, . borseau, m., , . borthwick, james, . ---- samuell, . ---- william, apothccar, . ---- col., . boswel of balmuto, . ---- of pittedy, . ---- of westmilne, . bothwell ----, . ---- adam hepburne, earle of, . ---- earls of. _see_ ramsay. ---- castle of, . boumaker, robert, . bouquiet, mr., . bourges, ; university of, . bourhouses, . boyde, hew, . boyelet, mr., merchant at orleans, . brackmont, . braid burn, edinburgh, . brandenburgh, duke of, xxxvii. brazennose college, oxford, . bread, price of, . breda, peace of, and _n_. bridal gifts, . bridgeman, sir orlando, . brisbane, mrs., xxxi. brothels in rome, defence of, . broun of colston, and _n_. ---- of gorgie, . ---- of thorniedykes, . ---- père, . ---- daniel, . ---- john, . ---- thomas, , , , , , , , , . ---- william, , , , , , , , . brace, rev. mr., of fife, anecdote of, . brimstone, and _n_, , . bruntilland. _see_ burntisland. brunton, . bryson, sandy, . buchanan, george, ; his _frantiscanus_, and _n_; criticism of his _history_, , . ---- sir john, , . buck, thomas, advocate, death of, . burgundy, duke of, . burnet, alexander, archbishop of glasgow, xxxvii; his remonstrance with charles ii., . ---- d., . ---- robert, advocate, death of, . burntisland, , . butterdean, . ---- laird of. _see_ hay, william. byres, , . caddel, captain, . calder, . ---- lairds of, . calderhall, laird of, , . calderwood, thomas, . ---- bailzie, , . callender, earl of, . calvin, john, tradition of, . camelon, king of the picts, . camnetham, laird of, . campbell of blythswood, _n_. ---- archibald, . ---- ---- advocate, death of, . ---- barbara, . ---- sir colin, and _n_. ---- james, . ---- mary, . ---- robert, . ---- ---- apothecar, . camron, archbald, , , . candie, tounc of, taken by the turks, . cants of grange, . ---- of priestfield, . capuchins, order of, , , , ; anecdotes of, , . carberrie, . ---- laird of, his influence on the battle of pinkie, . carden, lord, death of, . carington, laird of, . ---- lands of, _n_, . carmelites, order of, . carmichael, master of, . carnegie, katharine, . ---- james, . ---- sir robert, of kinnaird, . carthusians, . caskieberry, . ---- laird of. _see_ shoneir. cassilton, , . castellaw, mr., . castlemilk, . catechism of m. drelincourt, . catherine, st., of sienna, convent of, _n_. ceres (cires), . chabate, mile., . chabot, philippe de, and _n_. chained books at oxford, . chalmers, james, advocate, death of, . ---- joan, . chamberlayne, joseph, barber, . chambord castle, . champigny, . chancellor, kate, . chapman of priestfield, . charles ix., anecdote of, . charles i., murder of, . charles ii., his object in desiring the union of england and scotland, - ; letter from, for indulging outed ministers; establishment of his supremacy, ; settles the disputes between the houses of parliament, ; his debts paid by parliament, ; grant of money to, by parliament, _n_; eulogy on, xxvii. charleton, richard, . charteris, laurence, advocate, ; death of, . chartreuse, founding of the order of, - . chatelerault, . cheisly, john, of dairy, xxxiv, . ---- sam., . ---- william, . cherries, , : cherry feast to the exchequer, . chilperick, treatment of, . chimney-sweeps from savoy, . china, fertility of, - . chinon, . chirnesyde, . christ church, oxford, . christina, queen of sweden, anecdote of, . chrystie, mr., . ---- adam, clerk of session, . civil law of france, - . clan macduff, , . clarendon house, and _n_. clarke's _examples_ . classics, pronunciation of the, . clerical anecdotes, , , , , - , , . clerk, sir alex., of balbirny, . clery, . cleveland, dutchesse of, . clifford, lord, treasurer of england, . clifton hall, , . ---- toune, . climate of france, . cluny, barony of, . coal pits of dysert, . coalston pear, the, and _n_. cochrane, lord, , . cockburne of clerkingtone, . cockenie, , . coinage, heightening of gold and silver coinage of foreign nations, . _see also_ money. colbrandspath, . ---- laird of, . coldinghame abbey, . ---- kirk, . ---- moor, . colerine, . colison, mr., . colquhoun, sir john, of luz, . colt, mr., . columbus, anecdote of, . colvill, samuel, , . colyear, david, , , , . comedies played at poictiers, , comets, appearance of, xxxix. comiston well, . congilton, . conspiracy laws, hardships of, . constantine the emperor, statue of, . consultation fees, , , . convent of marmoustier, - ; of the bernardines, ; at st. florans, ; of notre dame d'ardiliers, and _n_. conventicles, laws against, . convention of burrows at glasgow, . cook, mr., . cooking in france, , . cordeliers, order of, , . coronation stone, . cothereau, renatus, . cotibby, m., . cotteridge, mr., . court of session, constitution of, xxxiv-xxxv; court of session documents, - . courty, rev. thomas, anecdote of, . covenanters, xxviii, xxix. covent garden, . craig, . ---- of riccarton, . ---- john, of ramorney, advocate, . craighall, , . craighouse, . craigie, lord, . craigiehall, . craiglockhart, . cranston, christian, . craw, . ---- rot., , , . ---- of eist reston, . ---- of henchcheid, . crawfurd, captain, . ---- thomas, , , . creichton, ----, , , . ---- john, . ---- of st. leonards, . crime in poictiers, . cringelty, in tweeddale, . crocodile story, . crosby, mr., x. crumstaine, . cujas, jacques, and _n_. cunyghame, ----, . ---- adam, . ---- sir j., . ---- w., . ---- walter, , , . ---- william, . ---- of barnes, . curators in french civil law, - . curriehill, . customs and laws of france, - . cuthbert, mr., . daillé, mr., , , , - , , - , , , . ---- madame, , . , , , , . dairsie, . dalhousie, william, earle of, death of, . dalkeith, lord, . dalmahoy, . dalrymple, sir david, lord hailes, , . dalrymple, james, . ---- sir john, xxxiv, . darling, lilias, . daulphinée, insurrection in, . dauphintoun, , . daves, mr., bookseller in oxford, . dean, james, , , . deans, robert, advocate, . death, customs connected with, in france, . dechmond, . del camp, m., execution of, . devil, the, being annoyed by the din of the gospel, favours the peopling of america from christian lands, ; his opinion of scotland, and _n_. devils of loudun, . dewar, david, . dick of braid, . ---- of grange, , . ---- sir andro, . ---- james, and _n_, , . ---- william, of grange, and _n_, , . dickson, alexander, of binnie, . ---- g., . ---- robert, advocate, death of, . digbie, sir kenelm, , . dinmuire, david, . dirleton castle, . divorce in rome, . dobies of stainehill, . dog of heriot's hospital hanged for refusing the test, xxxii. dogs as guardians of a town, . domenick, st., sermon on, . dominicans, . don, mr., . ---- patrick, . donibristle house, . douell, ----, , , , and _n_. douglas, marquis of, , , . ---- of gogar, . ---- of kelheid, . ---- of lumbsdean, , . ---- sir james, . ---- william, of kirknes, death of, . ---- ---- advocate and poet, death of, . ---- mr., , . douy, james, . downing, sir george, and _n_. drelincourt's _catechism_, . drodden. _see_ dryden. drummond of reidop, . ---- of riccarton, . ---- alex., . drummond, generall-major, . ---- bailyie, . drumshorling moore, , . dryden (drodden), . duaren, françois, and _n_. du bartas's _divine weeks_, and _n_. dudinstone, edinburgh, . dumbarton castle, . dumfries, earle of, . dunbar, earle of, oppressor of the craws, . ---- lordship of, . duncan of ratho, . duncombe, sir john, . dundas, wm., . ---- of that ilk, . dundasses of fingask, . dunfermline, . ---- alex., earle of. _see_ seton. ---- charles, earle of, death of, , . dunkirk, sale of, . dunybirsell. _see_ donibristle. durhame of lufnes, . durie of that ilk, , . du serre's _histoire_, and _n_, and _n_. dutch fleet, defeat of, - . ---- language, antiquity of, . dysert salt pans, ; coal pits, . east lothian militia, . ecclesiastical revenues of france, . edencraw, . edgar, edward, . edinburgh's bond of assurance with the laird of halton, ; dissensions among the trades of, . ---- university, removal of, to linlithgow, and _n_; gift of books to the library from lauder, . edmiston of that ilk, . edmond, colonel sir william, and _n_. edringtone, . eggs, price of, . eistbarnes, . eistfeild, . ---- laird of. _see_ gray, james. eleis, john, , o , , , . ---- ---- advocate, suspension of, . eleiston. _see_ illieston. elibank, lord, . elphinston, , , ---- lady, . ---- lord, _n_. elsick, lady, . errol, estate of, . erskin, arthur, . ---- jean, . ---- of innerteill, . estampes, and _n_. ethelstanefield, and _n_. ethie, earl of, and _n_. excommunication, moderate use of, . execution of a criminal in france, . expenses, notes of, - ; expenditure in london, . eyemouth (haymouth), . fabritius, general, anecdote of, . falconer, alexander, lord halkerton, death of, - . ---- sir david, of newton, advocate, , , . ---- mr., . farlies of braid, . fast kept by protestant churches of poictiers, . faustus, verses of, at blois, . fawsyde, near tranent, , . ---- james, . fentontour, . ferolme, jo., of craigiehall, . fête de dieu, . fife, earl of. _see_ ramsay. figgate burn, near edinburgh, . filleau, m., , . finglassie, . fireworks at saumur, . fish as french food, . fleming, james, . ---- sir william, . fletcher, sir androw, of abirlady, , . ---- james, . ---- sir john, king's advocate, , . ---- sir robert, of salton, . floors castle, . forbes of tolquhon fined for opprobrious speech, . ---- arthur, threatens a judge, - . ---- duncan, . ---- ---- of culloden, and _n_, . forfar anecdote, . forrest, mrs., . ---- r., . forrestor, . forret, . ---- lord. _see_ balfour, david. foster of corstorphine, . fosterland, , . fothringhame, robt., . foulden, . foulis, alexander, of ratho, . foulis, george, master-coiner, xlvi. ---- james, of colinton, lord reidfurd, and _n_, , , , , , . fouquet, nicolas, and _n_. francion's _histoire_, and _n_, . francis i., anecdote of, . franciscans, . frazer, mary, . frederic, king of bohemia, . french of thorniedykes, . ---- language, elegance of the, . ---- people, barbarity of, ; addicted to cheating strangers, . fruits of france, , , , , , , , ; of scotland, . fuirstoun, , . fullerton, samuel, , , . fullions or bernardines, and _n_, , , . funeral oration on the queen mother, at st. pierre, . furd, . fyvie, . gairdner, george, , , . ---- tom, , . gairnes, rev. william, . game laws, - . games of children in france, . gammelisheills, . gandy, mr., . garnier, mr., apothecary at poictiers, . ---- madame, . garshoire, mr., . gaule, m. de, . gaultier, mr., . gay, m. de, . ---- alexander, . geismar, mr., . gelderland, duke of, . geneva, rules for catholics in, ; watches of, . german language, . gibsone, alexander, principal clerk of session, . ---- g., . ---- james, . ---- sir john, of adelston, , . ---- mr., . giffard, lord, , , . giffards of shirefhal, , . gilbert, robert, , . gilespie, edward, , . ---- patrick, . gilmerton estate, xxxvi. gilmour, sir john, of liberton, , , ; resigns the presidentship of the court of session, ; death of, . glammes, lord of, . glasgow, ; glasgow merchants and the exportation of herrings, ; blackfriars church struck by lightning, . gledstan, halbert, . glenbervie, lairds of, . glencairne, ladie, . glencoe, massacre of, xxvi and _n_. glendoick, lord. _see_ murray. gogar, . ---- laird of, . gordon, adam, of edom, . ---- anna, . ---- sir george, of haddo, _n_, , . gorenberry, . gorgie in lothian, , , , , . goropius becanus, his _origines antwerpianz_, . gosford, . ---- lord, , . gouffier, guillaume, admiral, _n_. gourlay, h., . gourlaybank, . govan, robt., . gowrie, earl of, . ---- conspiracy anecdote, . grahame, mr., , , , , , . ---- hary, . grange, fife, . ---- laird of. _see_ dick, william. grant, major george, . gray, lord, . ---- james, of eistfeild, . ---- mr., a converted papist, . gruché, de, , . guise, duke of, . gunsgrein, , . gustavus adolphus, anecdote of, . guthry, rev. james, . ---- laird of, . ---- mrs., . haddington, thomas hamilton, earl of, and _n_, , . ---- abbey of, . hailes, lord. _see_ dalrymple, sir david. haliburton, james, , , , , . haliburtons of fentontour, . halidoun hill, . halkerton, lord. _see_ falconer, alexander. hall, dr., . halzeards, . hamilton, alexander, , . ---- ---- justice clerk depute, death of, . ---- henry, , . ---- james, duke of, , , , , . ---- ---- . ---- ---- advocate, death of, . ---- ---- clerk of session, death of, , . ---- marie, . ---- mary, . ---- patrick, of dalserf, , , . ---- robert, , , . ---- thomas. _see_ haddington, earl of. ---- sir william, a lord of session and lord provost of edinburgh, . ---- of dechmond, . ---- of eleiston, . ---- of orbiston, . ---- mr., , , . happers of bourhouses, . hardins, d., . hartsyde, dame margaret, . haswal, isabell, . hatfield house, . hatton, . ---- house, - . haukerstone, . hay, archibald, . ---- sir george, of nethercliff, and _n_. ---- harie, . ---- sir john, provost of edinburgh, . ---- john, principal clerk of session, . ---- thomas, , , , . ---- william, of butterdean, , . ---- dr., . haychester, . haymouth. _see_ eyemouth. helene, ste., chapel dedicated to, at auldcambus, . hendersone, james, . ---- william, bibliothecar in the colledge of edenbrugh, , . ---- of laurenceland, . ---- mr., . henry iii. of france, . henry iv. of france, , , , ; anecdote of, . hepburn, . ---- adam. _see_ bothwell, earl of. hepburnes of wauchton, . heriot of ramorney, . heriot's hospital, dog of, hanged for refusing the test, xxxii. hermistone, . herrings, exportation of, . heuch-home, . hewes, d., . hilary, st., legend of, ; tradition relating to st. hilaire and the devil, ; miracles wrought by the cradle of, . hilton of huttonhall, . hog, ja., . holland a 'sink of all religions,' ; treatment of jews in, . home. _see_ hume. honieman, andrew, bishop of orkney, . hope, henry, . ---- mr., , . hopes of craighall, . hotman, françois, and _n_. houlle, a barber, . household expenditure, - . howard, sir robert, . howel's _history of venice_, , ; his _familiar letters_, and _n_. hume or home, alexander, xxix, , , . ---- david, , , , . ---- george, . ---- sir john, of renton, justice clerk, , ; death of, , . ---- lady, . ---- sir patrick, and _n_, , , , . ---- peter, . ---- of coldinghame law, . ---- of the maines, . ---- of nynewells, . ---- of west reston, . ---- tavern keeper, . humes of blacader, . ---- of huttonhall, . hunter, james, , , , . huntley, the cock of the north, . husband-beaters, punishment of, . huttonhall, . ---- laird of. _see_ hilton: humes. hyde, sir edward, lord chancellor, _n_, ; hatred of, in england, ; he escapes to france, . idington, . ---- laird of. _see_ ramsay. illieston (eleiston), near edinburgh, , , . inchekeith, - . ingleston, . inglish, edwards, . inglish, james, . ---- mrs., , , . innerask, . innerleith, laird of, . innerteill, , . innerwick, . innes, robert, , . jacobins, order of, , and _n_, . james ii., ceremonies connected with the marriage of, and _n_. james iii., marriage of, ; bestows favours on john ramsay, ; death of, , . james iv., ; at norham castle, ; killed at flouden, . james v. and the franciscans, . james vii., xxviii, xxxi, xxxiv, and _n_, , . jesuits, order of, , ; college of, at poictiers, ; lines on their college at la flèche, ; wealth of the order, and how obtained, ; their cruelty, . jews, treatment of, in spain, portugal, and holland, - ; laws against, in rome and france, . 'jock of bread scotland,' and _n_. john of austria, his victory over the turks at lepanto, . ---- of gaunt, duke of lancaster, armour of, . johnston of warriston, . ---- robt., . ---- mr., . jossie, b., . jousie, jo., , . kar. _see_ ker. karkanders, . keith, sir james, of caddome, committed to the tolbuith and fined, . ---- robert, of craig, . kellie, w., . kello, john, , . kelso abbey, . kemnock, and _n_. kennoway, . ker, lancelot, . ---- sir mark, of cockpen, . ---- william, . ---- of itall, . ---- mr., . kid, rev. mr., of the abbey kirk, anecdote of, . kilmundie, laird of, , . kilpont, , . kilsyth, battle of, and _n_. kincaid of wariston, . ---- john, . kincardin, earle of, , , . king's evil, curing of, and _n_. kinghorne, , . ---- earle of, . kinglassy, . ---- lord, death of, . kingstone, lord, . kinleith (killeith), . kinloch, sir francis, . ---- francis, merchant in paris, xxxvi, , , , , - ; lauder's letter of introduction to, ; letter from, to john ogilvy, . ---- magdalen, . kinneuchar, and _n_. kinninmont, . kinninmonts of craighall, . kinnoul, lord, . kirkcaldie, . ---- g., . kirkcanders, lands of, . kirkhill, . kirkwood, mr., . la figonne, ingrande, , . la fleche, jesuit college at, . lambert ----, . lame people, large numbers of, in orleans, . lammerton, . lanark, . land, price of, in france, . langeais, . langhermistoune, . langnidrie, and _n_, . language, antiquity of, . lanty, mr., minister of chirnesyde, . latin and greek, pronunciation of, . laud, archbishop, his gift of mss. to the oxford university library, . lauder, andrew, . ---- colin, . ---- elizabeth, _n_. ---- george, . ---- sir george, . ---- james, , . ---- john, of newington, father of fountainhall, xxii, xxiii; letter of introduction from, to francis kinloch, . ---- sir john, lord fountainhall, outline of his life, xxii-xxv; his political opinions, xxv-xxxiv; on the administration of justice, xxxiv-xxxviii; account of his mss., ix-x; correspondence between sir walter scott and sir t.d. lauder on the proposed publication of his mss., xi-xxii; his early journals and accounts, xl-xlii; language and spelling of his mss., xlix; sets out on his travels, i; lands in france, ; in paris, ; at orleans, ; enters into theological and logical discussions, ; at blois, ; visits the convent at marmoustier, ; at saumur, - ; at richelieu, - ; arrives at poictiers, ; angers the french by abusing them in scots, ; leaves poictiers, ; at amboise, ; arrives in paris, ; his essay on the study of law, and _n_; visits the colleges and physick garden, - ; returns to london, ; his journey north, -i ; at york, ; reaches edinburgh, ; note of his expenses in london, ; at glasgow, , ; at hamilton, ; returns home, ; excursions in the neighbourhood of edinburgh, - ; his marriage; birth of his son john, and his daughters jannet and isobell, ; his tour through fife, - ; in haddingtonshire and berwickshire, - , - ; notes of journeys in scotland in - , - ; notes of his expenditure, - ; arrives at london, ; at oxford, ; admitted advocate, xxii, - , ; his marriage, xxii-xxiii, ; appointed advocate for the poor, ; his fees for consultations, - ; appointed assessor of edinburgh, , ; assessor for the convention of royal burrows, ; his gift of books to the library of the university of edinburgh, ; letter from, to his son, on sir andrew ramsay, lord abbots-hall, - ; catalogue of his books, , , - , - . ---- sir lues, . ---- richard, of hatton, and _n_, and _n_, , . ---- robert, , , , , . ---- sir thomas dick, his correspondence with sir walter scott on the publishing of fountainhall's mss., xi-xxii. ---- william, , . ---- of the bass, _n_. ---- sergeant, . ---- mr., . lauders, murder of, xxi. lauderdale, . lauderdale, john, earl of, . ---- ---- duke of, xxxi and _n_, xxxv, _n_, _n_, , , , - , - , , , - . ---- duchess of, , , . ---- richard, earl of, . ---- colonel, . lauds, ja., . laurenceland, . ---- laird of. _see_ henderson. law of brunton, . law, essay on the study of, and _n_. laws and customs of france, - , , , . lawyers' fees in france, . le berche, mr., , - , . leidingtoune, . leighton, robert, archbishop of dunblane, afterwards of glasgow, , . leirmonts of dairsie, . leith citadel, purchase of, , . leny (leine), near edinburgh, . _lepanthe (le) de jacques vi_., . lery, jean de, and _n_. leslie, fife, , . lesly, bishop of the isles, anecdote of, . ---- patrick, . leuchie, . levine, earl of, , . levinston, dr., . liberton, , . lindsay, henry, . linktoune, kirkcaldy, . linlithgow palace, and _n_. lintlands, . linton bridges, . lithgow, lord, . little, william, provost of edinburgh, . ---- ---- of over libberton, . lo ----, professor of music in oxford , , . lochlevin castle, . lockhart, sir george, xxx, xxxvii, , , , , . ---- sir james, of lee, lord justice clerk, and _n_, , ; death of, . ---- colonel sir william, of lee, , , . death of, . logans of restalrig, . loire, inundations of the, - . london tower, . loudun, the devils of, . louis xiii., statue of, in paris, ; statue and portraits of, at richelieu castle, - ; a gunmaker, ; heightens the gold and silver of foreign nations, . louis xiv., as a drummer, . lovain, universities of, . loyola, ignatius, sermon on, - . lufnes, , . lumsdean, charles, , . lundie, rev. james, . ---- of that ilk, - . lundy, mr., minister at dysert, . lylle, william, advocate, death of, . lyon, rev. gilbert, . ---- patrick, , . macbean, mr., xv, xviii, xxi. macduff clan, , . macfud ----, . m'gill, alex., , . ---- of fingask, . ---- of rumgaye, . m'gills of kemnock, . mackenzie, sir george, lord advocate, xxvii, xxxvi, xxxviii, , . ---- roderick, . maclucas, colin, . macquare, robert, , and _n_. madertie, lord, . madmen, anecdotes of, . madrid, near paris, . magdalen bridge, near musselburgh, and _n_. maid of orleans, festival of, - . mainart, lord, . maitland, charles, lord halton, _n_, _n_, , , . ---- richard, of pitreichy, . ---- family, . malcolm of babedie, . maps, price of, , . mar, earle of, , . march, earle of, . marior, joseph, . marjoribanks, . markinch (markins), . marmoustier, convent at, . marriage ceremonies, marriages of protestants in france, marriage laws of france, , . marseilles, . martin, st., celebration of, , ; relics of, . ---- robert, justice clerk-depute, , . mary, st., of loretto, _n_. ---- magdalen, st., nunnery of, at the sciennes, . masterton ----, , . maule, mr., xix. mawer, mrs., . may island, . mazarin, cardinal, , . meadowbank, lord, xiii. mede, joseph, theory of, on the peopling of america, . megget, jo., . mein, mr., . ---- patrick, . ---- robert, , , . meinzeis, rev. john, . meiren, col., . melvill, lord, . ---- family, . melvines of touch, . mendoza's _histoire ... de la chine_, . mensen, henry, merton college, oxford, and _n_, . metellan, mr., . meung, . mexico, founding of the kingdom of, . middleton, earl of, xli, . midlothian militia, . migill. see m'gill. milne, rev. mr., . milton's _iconoclastes_, . minimes, order of, , , . miracles performed at the cradle of st. hilaire, . mitchell, jo., . ---- william, , , . mompommery, mr., . _monasterium sancte mariæ in campis_, . moncreiff, sam, . money, comparative values of, xlii-xlviii, , and _n_, , , , and _n_, and _n_, and _n_, . monmouth, the duck of, . monro, alexander, , . monsoreau, , . montaigne's _essayes_, . monteith, earles of, . montozon, m., . montrosse, lord, . monynet, . moonzie, . moor, mr., . ---- g., . ---- dick, . moorefields, . moray. _see_ murray. mordington, . ---- lord, , . morisons of dairsie, . morton, earl of, , . morton of cummock, . mortonhall, laird of, . moubrayes of barnbougall, . ---- of wauchton, . mount calvary, near paris, . mountebanks, - . moutray of seafield castle, . mow, laird of, . ---- patrick, of the maines, . mowat, mr., , . muire of park, . muires of bourhouses, . muirhead, john, advocate, death of, . munster, bishop of, anecdote of the, . murder of a judge in paris, . discovery of murders at st. lazare, . murray, earle of, created justice-generall, . pensioned, . ---- john, advocate, death of, . ---- mungo, . ---- sir robert, and _n_. ---- death of, . ---- sir thomas, of glendoick, lord of session, - . ---- wm., , , . ---- of levinstone, . ---- mr., . musselburgh, , . mylne, robert, annotator of lauder's mss., xi, xii, xv, xx. myre of billie, . nairne, mr., . napier, origin of the name of, . nasmith, john, , , , . neilsone, margaret, , . newbyth, lord. _see_ baird, sir john. new college, oxford, . new cranston, . newliston, . newmilnes, . newtonlies, , . neidle eye, near bathgate, . nicol, john, , , . ---- p., . nicolson, sir john, of polton, . ---- jonet, . ---- thomas, advocate, death of, . nidrie, . ---- castle, . nisbet, sir john, of dirleton, _n_, , , , . ---- of west nisbet, . norame castle, . normand, lance, . northtoun (norton), . northumberland, earl of, . norvell, george, advocate, death of, . nunlands, , . nynewells, . oaths of france, . ogilvy, lord, and _n_, , , , , . ---- john, , , , , , , , , , , ; letter to, from francis kinloch, introducing lauder, . oliphant, lord, . ---- laurence, advocate, death of, . ---- patrick, death of, . olive trees, abundance of, in france, . opdam, admiral, and _n_; defeat of, - . orange trees, . oriel college, oxford, . orleans, ; festival of the maid of, - ; the fête de dieu at, ; drinking customs of, . ---- duke of, statue of, at blois, . ormond, duke of, . orrery, lord, and _n_. osborne's _advice to a son_, and _n_. oswald, alex., advocate, death of, . otterburne of reidhall, , . oxbridge. _see_ uxbridge. oxford and its library, - ; its colleges, - . painston ----, , , . paipes of walafield, . paisley (pasley) town and abbey, . pancerolli's _vetera deperdita_, and _n_. papists, effects of thunder on, . parma, the duke of, and the jesuits, . partenay, . passive obedience, . paterson, george, , , . ---- rev. john, . ---- thomas, , , . ---- william, , . pathhead or pittintillun, . patrick, st., irish respect for, . paxtoun, . peager, madame, . peirs, mary, . penmansheills, . penny weddings, , , , , . pentherer ----, . peppermilne, near edinburgh, . péres de l'oratoire, , , . petition to the court of session, . philip ii. of spain, anecdotes of, . phrygian language, antiquity of, . physick garden, oxford, . pies, the, near cockburnspath, . pilans, james, . pinkie, battle of, . ---- house, near musselburgh, . pitcairne ----, . pitmedden. see seton. pittedy, fife, . pleughlands, edinburgh, . poictiers, ; street cries of, , ; anecdote of the bishop of, - ; jesuit college at, ; lawyers in, ; crime in, . poictou, governor of the province of, ; the practice of torture in, . pollock, mr., . popish plot, xxviii. porrock, henry, . port de pilles, . porterstoune, . portraiture in france, . portsmouth, dutchesse of, xli. portues, patrick, , . preistfield, . preston of bouncle, . ---- sir robert, of that ilk, xxxv _n_, , . prestons of craigmillar, . primogeniture, law of, in france, , . primrose, sir archibald, of elphinston, , and _n_, - . pringle, mr., of yair, xiii. ---- walter, advocate, , , , ; suspension of, . productiveness of france, . protestants, marriages of, in france, . proverbs, - , , . psammeticus, king of egypt, and the origin of language, . puddock stools, cooking of, . purves, william, . quarrier, pat, . queen's college, oxford, . queinsberry, earle of, . quinkerstaines, . radegonde, ste., ; legend of, ; tomb of, . raith, the, kirkcalcly, . ---- of edmonston, and _n_. ramsay, sir andrew, lord abbotshall, lord provost of edinburgh, xxii, xxxiv-xxxvi, _n_, , , , , , , , , , , , - ; made a lord of session, ; a member of the privy council, ; letter from lauder on the character and career of, ; extract on, from sir george mackenzie's memoirs, - . ramsay, sir andrew, of wauchton, , . ---- lady wauchton, . ---- andrew, professor of theology at saumur and afterwards rector of edinburgh university, , , , - and _n_. ---- sir charles, of balmayn, . ---- david, . ---- ---- of balmayn, . ---- george, lord, . ---- grissell, , , , . ---- sir james, of whythill, advocate, death of, . ---- janet, wife of lord fountainhall, xxii. ---- sir john, of balmayn, afterwards earl of bothwell, , - . ---- john, keiper of the register of homings, death of, . ---- ---- minister of markinch, . ---- margaret, . ---- mathew, , . ---- patrick, and _n_, . ---- william, earle of fife, , . ---- ---- of balmayne, . ---- ---- , , , , . ---- of balmayne, . ---- of corston, , . ---- of fawsyde, . ---- of idington, and _n_, , , . ---- of nunlands, . ---- colonel, . ---- . ramsays in fife, . raploch, laird of, . ratho, . razin, stenka, rebellion of, . reidbraes, . reidfuird, lord. _see_ foulis, james, of colinton. reidhall, . reidhouse, . reidop, . reidpeth, george, . relics at the convent of marmoustier, - . renton, , . ---- lord. _see_ hume, sir john. ---- of billie, . rentons' claim on coldingham, - . restalrig castle, ; chapel, . revenscraig, . revensheuch, . revenues of the king of france, . riccarton, , . richelieu town and castle, description of, - , , . ---- cardinal, , . richison, lady smeton, . riddles, , - . rigs of carberrie, . robertson, george, keiper of the register of hornings, . ---- thomas, treasurer of edinburgh, , , , , . robison of the cheynes (sciennes), . rocheid, sir james, . roman catholics, penal laws against, xxvi, xxvii; troublesome citizens, xxix. rome, brothels of, ; scots college at, ; customs of, . ross, bishop of, his mission on behalf of james ii., and _n_. ---- lord, . ---- daniel, . ---- james, advocate, death of, . rothes, earl of, xxxvi, , _n_, , . rouchsoles, . roxbrugh, earle of, , , . roy, mr., . rue, mr., . ruell waterworks, , . rumgaye, . rupert, prince, . rutherfurd, lord, and _n_. ---- c., , . ---- capt., . _sacellum sancti marlorati_, and _n_. st. abbes head, . st. catharine's well, . st. florans, convent at, . st. germains, . st. hilaire, abbot of, ; church of, . st. roque, chapel of, _n_. saints' days, . salmasius' _defensio regio_, . salmon fishing on the tweed, . salt, . salton, estate of, . sandilands, mr., , , . ---- marion, . sandwich, vice-admiral, . sanquhar, lord. _see_ hamilton, sir william. sanson's maps of france, etc., . sauces and salads, . sauchton, . saumur, - ; system of graduation at, . scatteraw, . scholars' compact with the devil, . scholastic speculations, - . schovo, mr., , , . sciennes, nunnery at, and _n_. scorpions, . scots' walk at the church of st. hilaire, . scotscraig, , . scotstarvet, . scott, adam, . ---- david, . ---- francis, . ---- sir john, of scotstarvet, , , . ---- john, , , , . ---- laurence, of bevely, clerk of session, death of, . ---- margaret, . ---- mary, . ---- robert, , . ---- thomas, of abbotshall, , . ---- sir walter, his correspondence with sir thomas dick lauder on the proposed publication of fountain-hall's mss., xi-xxii. ---- wm., of abirlady, . ---- of ardrosse, . ---- of balveiry, . ---- of bonytoun, . ---- of dischingtoune, . ---- of limphoys, . ---- captain, . ---- mr., . scougall, . ---- sir john, of whytkirk, death of, . scudéri's _almahide_, account of, - . seafield castle, . seat rent, , . sempills of fulwood, . semple, . ---- gabriell, . senators of the college of justice, their usurpation of power over the town of edinburgh, . sermons on ignatius loyola, ; on st. domenick, ; on the virgin mary, , - ; anecdotes of sermons, . seton, alexander, chancellor, and provost of edinburgh, , and _n_, . ---- ---- of pitmedden, , , . shaftesbury, earle of, high chancelor of england, . sharp, james, archbishop of st. andrews, , , . ---- william, of stainehill, . sherwood forest, . sheves, william, of kemnock, archbishop of st. andrews, . shirefhal, . shoneir of caskieberry, . shynaille, and _n_. sibbalds of balgonie, , . silver, price of, . silvertonhil, . sim, william, , . sinclair, lord, . ---- george, . ---- hew, , . ---- ja., of roslin, . ---- john, minister at ormiston, . ---- sir robert, , and _n_, - , . ---- robert, , . skene (skein), j., and _n_. ---- sir james, of curriehill, xi, . ---- thomas, advocate, . ---- of halzeards, . smith, rev. j., anecdote of, . ---- joannette, . somervell, arthur, , . somnambulism, a cure for, . sorcery, xxxviii, - , , and _n_. southampton, earle of, . southesk, carles of, . spaniards, antipathy of the french to, - ; spanish cruelty in the new-world, . spanish netherlands invaded by the french, . spence, jeremiah, forges a decreet, - . spittle, . spot, , . spotswood, alexander, . ---- ---- of crumstaine, advocate, ; death of, . ---- john, archbishop of st. andrews, , . sprage, mr., . spurius carvilius, . stainehill, near edinburgh, . stainfeild, sir ja., . stair, lord, president of the court of session, xxxi, xxxv and _n_, xxxvi _n_, , . stanipmilne, . steill, pat, . stevinson, haddington, . ---- d., . ---- jo., . ---- william, . ---- dr., , . stewart, john, of ketleston, death of, . ---- sir lues, advocate, of kirkhill, . ---- robert, marshal of france, . ---- of rossyth, . stillingfleet, mr., . stirling, rev. david, . ---- rev. robert, . strachan ---- regent at aberdeen, . ---- sir j., . ---- william, advocate, death of, . ---- mr., , . ---- mlle, . strafford, earle of, . stranaver, lady, . street cries, , , . sutherland, james, treasurer of edinburgh, . ---- will., , , , . suty, john, . swearing, punishment of, . swine, . swinton, alexander, advocate, , . ---- of brunston, and _n_. sword ----, provost of aberdeen, . swynish abbey, . sydserfe, . ---- tom, his _tarugoes wiles_, - and _n_. tailfours of reidheues, . tantallon (tomtallon), , . tarbet, laird of, . taringzean, . temple, arthur, . ---- lands in edinburgh, . tennent, skipper, . terinean, in carrick, . test act, xxxii-xxxv. thanes of collie, . theft, punishment of, . thiget burn. see figgate burn. thirlestan, and _n_, . thoires, david, advocate, ; sent to prison and fined, . thomson, george, of touch, , , . ---- thomas, xiii, xix-xx. ---- sir thomas, . thomsone, sir william, , . thornetounloch, . thorniedykes, . thunder, bell-ringing during, - . toad, medicinal stone in head of, . tobit's dog, and _n_. tod, archibald, provost of edinburgh, . todrig, alex., , , . 'tom of the cowgate.' _see_ haddington, earl of. torrance ----, . torture, infliction of, xxxviii, , . touch, , . ---- laird of. _see_ thomson, george. touraine, madame de, death of, . tours, , , , . trade processions in france, . traditions and fables, - . traquair, lord, , . trinity college, oxford, . trotter, jo., . turner ----, . ---- sir james, . tweddale, earle of, , , , ; his predecessors, . tyninghame, , . umeau, m., his speech at the opening of the law university of poictiers, . union of england and scotland, and _n_. university college, oxford, . uphall kirk, . uxbridge, . van eck, tunis, . van tromp, . vipers exhibited by mountebanks, , . voetius ----, . vulteius ----, . waldenses, persecutions of, . walker, william, . wallace, hew, w.s., . ---- james, macer, . ---- sir thomas, . ---- william, tradition of, . ---- ---- advocate, death of, . ---- mr., . wallyfield, near musselburgh, , . wardlaw, charles, , . waren, mr., . waschingtoune, . wat, peter, . water, vendors of, . waterworks at ruell, , ; at shynaille, . watson, david, of sauchton, . ---- j., of lammyletham, . ---- walter, provost of dumbarton, . ---- of pathhead or pittintillun, . ---- ---- . wauchope of niddrie, _n_. wauchton, , . _see also_ hepburn: ramsay. ---- of lufness, . wause, pat., , , . wedderburne, rob., sermon by, . weir, major, execution of, . wemes, james, advocate, death of, . wemyss, rot., . ---- (veimes) of bogie, . ---- of that ilk, . wesenbec, matthew, . westmilne house, kirkcaldy, . white, c, . whithill, easter dudinstone, . whitkirk, . whyte, andrew, of fuirstoun, . wild animals of france, . wilkie, archibald, of dauphintoun, . wilky, mr., . willis, d., physitian, . wilson, james, . ---- thomas, . windiegoule, near tranent, . wine, adulteration of, . wines of germany, ; of france, . winrahame, robert, advocate, death of, . ---- of currichill, . winton, lord, , . witchcraft, xxxviii-xl. wolsie, cardinal, . wolves in france, . wood, andro, . ---- hary, . ---- rev. james, anecdote of, . ---- john, , , , . woodhead, lands of, xxiii. wrightshouses, edinburgh, ; origin of, . yester, . ---- lord, , , . york, duke of. _see_ james vii. ---- town and minster, . young, androw, , , . ---- of leny, . printed by t. and a. constable, printers to her majesty at the edinburgh university press. report of the thirteenth annual meeting of the scottish history society the thirteenth annual meeting of the society was held on tuesday, november , , in dowell's rooms, george street, edinburgh,--emeritus professor masson in the chair. the hon. secretary read the report of the council, as follows:-- during the past year the society has lost twenty members, ten by death and ten by resignation. when the vacancies are filled up there will remain seventy names on the list of candidates for admission. in addition to the individual members of the society there are now public libraries subscribing for the society's publications. the council particularly desire to express their regret at the death of the rev. dr. alexander mitchell, formerly professor of ecclesiastical history at st. andrews university, and of the rev. a.w. cornelius hallen. from the foundation of the society, dr. mitchell had been a corresponding member of the council. he took a great interest in the society's work, and, in conjunction with the rev. dr. christie, edited for us two volumes of _the records of the commissions of the general assembly of the years_ - . mr. hallen was also an active member of the council for many years, and edited _the account book of sir john foulis of ravelston_. the society's publications belonging to the issue of the past year, viz., mr. ferguson's first volume of _papers illustrating the history of the scots brigade_, and mr. firth's volume on _scotland and the protectorate_, have been for some months in the hands of members. but members for this year, - , are to be congratulated on their good fortune in receiving, in addition to the ordinary issue of the society, two other volumes as a gift. it will be remembered that at our last annual meeting mr. balfour paul announced on behalf of the trustees of the late sir william fraser, k.c.b., that, acting on the terms of the trust, they were prepared to print and present to members on the roll for the year - , at least one, and perhaps two volumes of documents having the special object of illustrating the family history of scotland. the work then suggested, and subsequently determined upon, was the macfarlane genealogical collections relating to families in scotland, mss. in the advocates' library, now passing through the press in two volumes, under the editorial care of mr. j.t. clark, the keeper of the library. the whole of the first volume and the greater part of the second are already in type. the council, who very highly appreciate this welcome donation, desire to convey to the trustees the cordial thanks of the society for their share in the presentation. the following are the publications assigned to the coming year, - : ( .) the second volume of the _scots brigade_ which is already printed, bound, and ready for issue. ( .) _the journal of a foreign tour in and _, and portions of other journals, by sir john lauder, lord fountainhall, edited by mr. donald crawford, sheriff of aberdeen, kincardine and banff. the greater part of this book also is in type. ( .) _dispatches of the papal envoys to queen mary during her reign in scotland_, edited by the rev. j. hungerford pollen, s.j. the editor expects to send his manuscripts to the printer in january next. several new works have been proposed and provisionally accepted by the council. dr. j.h. wallace-james offers a collection of charters and documents of the grey friars of haddington and of the cistercian nunnery of haddington. they will be the more welcome, as the desire has been frequently expressed that the society should deal more fully with the period preceding the reformation. mr. firth has suggested the publication of certain unedited or imperfectly edited papers concerning the _negotiations for the union of england and scotland in_ - , and mr. c. sandford terry of aberdeen has kindly consented to edit them. the three retiring members of council are dr. hume brown, mr. g.w. prothero, and mr. balfour paul. the council propose that mr. prothero should be removed to the list of corresponding members, that dr. hume brown and mr. balfour paul be re-elected, and that mr. john scott, c.b., be appointed to the council in the place of mr. prothero. the accounts of the hon. treasurer show that there was a balance in november of £ , s. d., and that the income for the year - was £ , s. d. the expenditure for this same year was £ , s. d., leaving a balance in favour of the society of £ , s. d. the chairman, in moving the adoption of the report, which, he said, was very satisfactory, said that in the first place they had kept their promises and arrangements in the past year, and, in the second place, they had a very good bill of fare for the current year, even if there were nothing additional to their programme as already published. the books that had been announced as forthcoming were just the kind of books that it was proper the society should produce. but, in addition, they would see there was forthcoming a very important publication which had come to them out of the ordinary run. the late sir william fraser, in addition to his other important bequests, which would for the future affect the literature of scottish history, gave power to his trustees that they might, if they saw occasion, employ a certain portion of his funds on some specific publications of the nature of those materials in which he had been spending his life. the result had been that the trustees, chiefly he believed by the advice of their lyon king of arms, mr. balfour paul, had offered as a gift to this society those very important genealogical documents, the macfarlane documents, which had been lying in the advocates' library, and to which a great many people at various times had been referring, to such an extent that he believed mr. clark, the librarian of the advocates' library, had been almost incommoded by the number of such applications. henceforth this would not be the case, as the macfarlane genealogical documents were to be published under the editorship of mr. clark. that was a windfall for which he had no doubt all the members of the society would be thankful, and when he moved the adoption of the report he meant specially to propose their adoption of a hearty vote of thanks to the trustees of sir william fraser. professor masson then alluded to the proposal of mr. c. stanford terry to produce the silent records relating to the union of scotland with england in the years to . that was a portion of scottish history that had been almost forgotten, but a very important and interesting portion of scottish history it was. in , after the battle of dunbar, and after cromwell's occupation of scotland, and after he had gone back to england and had left monk in charge in scotland, with about eight thousand englishmen in scotland, distributed in garrisons here and there, it occurred to the long parliament of england, then masters of affairs in great britain, that there ought to be an incorporating union of scotland with the english commonwealth. that proposal came before the long parliament in october . it was agreed upon, by way of declaration, that it might be very desirable, and a committee of eight members of the long parliament was appointed to negotiate in the matter. they came to scotland, and there was a kind of convention, a _quasi_ scottish parliament, held at dalkeith, where the matter was discussed. of course, it was a very serious matter, giving rise to various feelings. to part with the old scottish nationality was a prospect that had to be faced with regret. to this parliament the commissioners proposed what was called the tender, or an offer of incorporating union. the variety of elements in scotland-- royalists, presbyterians, independents--in the main said that they must yield, although they were reluctant. even those who were most in sympathy with the english commonwealth politically shrank for a while, and they tried whether the long parliament might not accept a kind of compromise, whether scotland might not be erected into a little independent republic allied to the english commonwealth or republic. but at last all these feelings gave way, and the english commissioners were able to report before the end of the year, or in january--what we should now call , but then called --that twenty of the scottish shires out of thirty-five had accepted the tender, and that almost all the burghs had accepted it, edinburgh and aberdeen and all the chief burghs --glasgow being the sole outstanding one. at last, however, glasgow, on thinking over the thing, agreed, and the consequence was that in april the act incorporating scotland with the english commonwealth passed the first and second readings in the long parliament. from april scotland was, they might say, united with england, and in the protectorate parliaments, in cromwell's first and second parliaments, there were thirty members from scotland sitting at westminster with the english members, and so through the protectorate of his son richard, and it was not till the restoration that there came the rebound. then the order universally was: 'as you were,' and a period of scottish history was sponged out, so much so that they had forgotten it, and many of them rather regretted it. at all events, it was a very important period of scottish history, and the proposed publication will give us flashes of light into the feelings and the state of the country between and . proceeding, professor masson said the society had kept strictly to their announcements, and they had already contributed a great many publications, which, at all events, had proved, and were proving, new materials for the history of scotland, giving new conceptions of that history. they would observe in the first place how the publications had been dotted in respect of dates, some of them comparatively recent, others going far back. they would observe, in the second place, that the documents had been of almost all kinds--all those kinds that were of historical value; all those that really pertained to the history of scotland--that was to say, the history of that little community which, with a small population, they named scotland. there were various theories and conceptions of history. the main and common and the capital conception of the day was to give the story of the succession of events of all kinds. in that respect scottish history, though the history of a small nation, would compete in interest with the history of any nation that had ever been. small, but the variety, the intensity of the life, the changes, the vicissitudes, the picturesque incidents, no history could compete for that kind of interest with the history of that little torrent that had flowed through such a rocky, narrow bed. crimes or illegalities got easily into books, and this was a little unfortunate, because people dwelt on such crimes and illegalities as constituting history. but they did not. no more would the digest of the trials of their police courts and of their chief courts. they figured, of course, in history, but there ought to be a caution against allowing too great a proportion of those records of crimes and illegalities to affect their views. then there was a notion of history very much in favour with their scholars at present, that it should consist merely of a narrative of the actions of the government and the formation of institutions--what they should call constitutional history. there had been a school of historical writers of late who would almost confine history to that record--nothing else was proper history, and the consequence was that the constitution of history was in the publication of documents and in the changes in the manner of government. that was an essential and a very important part of history, but by itself it would be a very dreich kind of history. history was the authentic record of whatever happened in the world, and scottish history of whatever had happened in the scottish world. if he had been told that on a certain date king james v., the red fox, rode over cramond bridge with five horsemen, one of them on a white horse, they might say what use was it to him to know that, but he did want to know it and have that picture in his mind. it was a piece of history, and any one who was bereft of interest in that sort of thing--however little use it might be turned to--was bereft of the historical faculty. then there was a conception of history that it should consist in pictures of the generation, of the people, how they were housed, how they were fed, and so on. that was a capital notion. but he was not sure that there were not certain overdoings of that notion. in the first place, they would observe that they must take a succession of generations in order to accomplish that descriptive history of the state of scotland at one time, then at another, then at a third, and so on. a description at one time would not apply to the society of scotland at another. 'quhan alysander, oure kyng, was deid, quhan scotland led in luve and le, awa' wes sons of ail and brede, of wyne and wax, of gamyn and glee.' that was to say, it was a tradition before that time that there was abundance and even luxury in scotland. there had been a tendency in history of late to dwell on the poverty and squalor of scotland in comparison with other countries--all that should be produced, and made perfectly conceivable--and then also to dwell on the records of kirk- sessions and presbyteries, showing the state of morality in scotland. all that it was desirable should be produced in abundance if they were not wrongly construed--but they were apt to be. a notion had arisen what a comical country scotland must have been with its shorter catechism, and its presbytery records, and its miserable food, and so on. that was a wrong notion, and ought to be dismissed, because if they thought of it the life of a community consisted in how it felt, how it acted. in those days of poverty and squalor of external surroundings there were as good men, as brave men, and as good women as there were in scotland now. and at all events, if there was anything in scotland now, any power in the world, it had sprung from these progenitors. they must have some corrective for an exaggeration of that notion, which was very natural. one was biography. they would be surprised if they were to know how many biographies there might be along the course of scottish history, say from the reformation. if they fastened on a single individual, and told the story of his life, they not only told the story of his community in a very interesting manner, but they got straight to some of those faults which they were apt to be impressed by if they gazed vaguely at the community. dr. hume brown had written an admirable summary of the history of scotland, but he had contributed to the history of scotland in another way by his two biographies of buchanan and knox, and especially by his biography of buchanan. another corrective was literature. there had been no sufficient perception of how literature might illustrate history; and why should it not if their aim was to recover the past mind of scotland? every song, every fiction--was not that a transmitted piece of the very mind that they wanted to investigate? here was matter already at their hand. then, in a similar way, if a noble thought, if a fine feeling, was in any way expressed in verse or in prose, that came out of some moment or moments in the mind of some individual, and it must have corresponded and been in sympathy with the community in which it was expressed. nothing noble had come out of any man at any one time, but that man, in the way of expression of literature, must have had a constituency of people who felt as he felt. unfortunately there was a long gap in what we called the finer history of scotland from the time of the reformation to allan ramsay--in literature of certain kinds. there were muses in those days, but they were muses of ecclesiastical and political controversy--very grim muses, but still they were muses. but from allan ramsay's time to this, to study the history of the literature was to know more of the history of the country than we would otherwise. david hume, adam smith, burns, scott--all these men were born and bred in scotland so poor and so squalid that we should say we would not belong to it now. nobody was asking us to belong to it. but these men, their roots were in a soil capable of sustaining their genius and of pouring into their works those things in the way of thought and feeling that delighted us now, and that were our pride throughout the world. mr. d.w. kemp seconded the adoption of the report, which was agreed to. the vacancies in the council were filled by the re-election of dr. hume brown and mr. balfour paul, and the election of mr. john scott, c.b., in room of mr. g.w. prothero. in reply to mr. james bruce, w.s., dr. law said that the death of dr. mitchell had caused some delay in the preparation of the third volume of the records of the general assembly, but it had already been transcribed for the printer. a vote of thanks to professor masson concluded the proceedings. abstract of the honorary treasurer's accounts _for year to st october ._ i. charge. i. balance in bank from last year, £ ii. subscriptions, viz.-- ( ) subscriptions for - , at £ , s., £ in arrear for - , and in advance for - , in advance for - , and for - , ---------- £ less in arrear for - , ---------- ( ) libraries at £ , s., £ in advance for - , ---------- £ less in advance for - , ---------- ( ) copies of previous issues sold to new members, iii. interest on deposit receipt, ---------- sum of charge, £ ========== ii. discharge. i. _incidental expenses_-- printing cards, circulars, and reports, £ --------- carry forward, £ * * * * * brought forward, £ stationery, receipt and cheque books,..... making-up and delivering copies, postages of secretary and treasurer, .... clerical work and charges on cheques, ... hire of room for meeting, ---------- £ ii. _montereul correspondence, vol. ii._,-- composition, printing, and paper,..... £ proofs, corrections, and delete matter, ... binding,..... indexing, ... ---------- £ less paid to account, oct. , ---------- iii. _the scots brigade, vol. i._-- composition, etc., ... £ proofs and corrections,.. binding,..... indexing vol. i., ... ---------- iv. _the scots brigade, vol. ii._-- indexing,...... £ v. _scotland and the protectorate_-- composition, etc., ... proofs, corrections, and delete matter, ... illustrations, ... binding,..... indexing,.... ---------- -------- carry forward, ... £ * * * * * brought forward, £ vi. _balance to next account_-- sum due by the bank of scotland on st october -- ( ) on deposit receipt, £ ( ) on current account, -------- --------- sum of discharge, £ ========= edinburgh, _ rd november_ .--having examined the accounts of the hon. treasurer of the scottish history society for the year to st october , of which the foregoing is an abstract, and compared the same with the vouchers, we beg to report that we find the said account to be correct, the sum due by the bank at the close thereof being £ , s. d. wm. traquair dickson, _auditor._ ralph richardson, _auditor._ scottish history society. scottish history society * * * * * the executive. _president._ the earl of rosebery, k.g., k.t., ll.d. _chairman of council._ david masson, ll.d., historiographer royal for scotland. _council._ john scott, c.b. sir j. balfour paul, knt., lyon king of arms. p. hume brown, m.a., ll.d. rev. john hutchison, d.d. d. hay fleming, ll.d. right rev. john dowden, d.d., bishop of edinburgh. j. maitland thomson, advocate, keeper of the historical department, h.m. register house. w.k. dickson, advocate. david patrick, ll.d. sir arthur mitchell, k.c.b., m.d., ll.d. Æneas j.g. mackay, q.c., ll.d., sheriff of fife and kinross. sir john cowan, bart. _corresponding members of the council._ c.h. firth, oxford; samuel rawson gardiner, d.c.l., ll.d.; rev. w.d. macray, oxford; g.w. prothero, litt. d. _hon. treasurer._ j.t. clark, keeper of the advocates' library. _hon. secretary._ t.g. law, ll.d., librarian, signet library. rules . the object of the society is the discovery and printing, under selected editorship, of unpublished documents illustrative of the civil, religious, and social history of scotland. the society will also undertake, in exceptional cases, to issue translations of printed works of a similar nature, which have not hitherto been accessible in english. . the number of members of the society shall be limited to . . the affairs of the society shall be managed by a council, consisting of a chairman, treasurer, secretary, and twelve elected members, five to make a quorum. three of the twelve elected members shall retire annually by ballot, but they shall be eligible for re-election. . the annual subscription to the society shall be one guinea. the publications of the society shall not be delivered to any member whose subscription is in arrear, and no member shall be permitted to receive more than one copy of the society's publications. . the society will undertake the issue of its own publications, _i.e._ without the intervention of a publisher or any other paid agent. . the society will issue yearly two octavo volumes of about pages each. . an annual general meeting of the society shall be held at the end of october, or at an approximate date to be determined by the council. . two stated meetings of the council shall be held each year, one on the last tuesday of may, the other on the tuesday preceding the day upon which the annual general meeting shall be held. the secretary, on the request of three members of the council, shall call a special meeting of the council. . editors shall receive copies of each volume they edit for the society. . the owners of manuscripts published by the society will also be presented with a certain number of copies. . the annual balance-sheet, rules, and list of members shall be printed. . no alteration shall be made in these rules except at a general meeting of the society. a fortnight's notice of any alteration to be proposed shall he given to the members of the council. publications of the scottish history society _for the year - ._ . bishop pococke's tours in scotland, - . edited by d.w. kemp. (oct. .) . diary of and general expenditure book of william cunningham of craigends, - . edited by the rev. james dodds, d.d. (oct. .) _for the year - ._ . panurgi philo-caballi scoti grameidos libri sex.--the grameid: an heroic poem descriptive of the campaign of viscount dundee in , by james philip of almerieclose. translated and edited by the rev. a.d. murdoch. (oct. .) . the register of the kirk-session of st. andrews. part i. - . edited by d. hay fleming. (feb. .) _for the year - ._ . diary of the rev. john mill, minister of dunrossness, sandwick, and cunningsburgh, in shetland, - . edited by gilbert goudie, f.s.a. scot. (june .) . narrative of mr. james nimmo, a covenanter, - . edited by w.g. scott-moncrieff, advocate. (june .) . the register of the kirk-session of st. andrews. part ii. - . edited by d. hay fleming. (aug. .) _for the year - ._ . a list of persons concerned in the rebellion ( ). with a preface by the earl of rosebery, and annotations by the rev. walter macleod. (sept. .) _presented to the society by the earl of rosebery_. . glamis papers: the 'book of record,' a diary written by patrick, first earl of strathmore, and other documents relating to glamis castle ( - ). edited by a.h. millar, f.s.a. scot. (sept. .) . john major's history of greater britain ( ). translated and edited by archibald constable, with a life of the author by Æneas j.g. mackay, advocate. (feb. .) _for the year - ._ . the records of the commissions of the general assemblies. - . edited by the rev. professor mitchell, d.d., and the rev. james christie, d.d., with an introduction by the former. (may .) . court-book of the barony of urie, - . edited by the rev. d.g. barron, from a ms. in possession of mr. r. barclay of dorking. (oct. .) _for the year - ._ . memoirs of the life of sir john clerk of penicuik, baronet, baron of the exchequer, commissioner of the union, etc. extracted by himself from his own journals, - . edited from the original ms. in penicuik house by john m. gray, f.s.a. scot. (dec. .) . diary of col. the hon. john erskine of carnock, - . from a ms. in possession of henry david erskine, esq., of cardross. edited by the rev. walter macleod. (dec. .) _for the year - ._ . miscellany of the scottish history society, first volume-- the library of james vi., - . edited by g.f. warner. documents illustrating catholic policy, - . t.g. law. letters of sir thomas hope, - . rev. r. paul. civil war papers, - . h.f. morland simpson. lauderdale correspondence, - . right rev. john dowden, d.d. turnbull's diary, - . rev. r. paul. masterton papers, - . v.a. noËl paton. accompt of expenses in edinburgh, . a.h. millar. rebellion papers, and . h. paton. (dec. .) . account book of sir john foulis of ravelston ( - ). edited by the rev. a.w. cornelius hallen. (june .) _for the year - ._ . letters and papers illustrating the relations between charles ii. and scotland in . edited, with notes and introduction, by samuel rawson gardiner, ll.d., etc. (july .) . scotland and the commonwealth. letters and papers relating to the military government of scotland, aug. --dec. . edited, with introduction and notes, by c.h. firth, m.a. (oct. .) _for the year - ._ . the jacobite attempt of . letters of james, second duke of ormonde, relating to cardinal alberoni's project for the invasion of great britain. edited by w.k. dickson, advocate. (dec. .) , . the lyon in mourning, or a collection of speeches, letters, journals, etc., relative to the affairs of prince charles edward stuart, by the rev. robert forbes, a.m., bishop of ross and caithness. - . edited from his manuscript by henry paton, m.a. vols. i. and ii. (oct. .) _for the year_ - . . the lyon in mourning. vol. iii. (oct. .) . supplement to the lyon in mourning.--itinerary of prince charles edward. with a map. compiled by w.b. blaikie. (april .) . extracts from the presbytery records of inverness and dingwall from to . edited by william mackay. (oct. .) . records of the commissions of the general assemblies (continued) for the years and . edited by the rev. professor mitchell, d.d., and rev. james christie, d.d. (dec. .) _for the year_ - . . wariston's diary and other papers--johnston of wariston's diary, . edited by g.m. paul. the honours of scotland, - . c.r.a. howden. the earl of mar's legacies, , . hon. s. erskine. letters by mrs. grant of laggan. j.r.n. macphail. (dec. .) _presented to the society by messrs. t. and a. constable._ . memorials of john murray of broughton, sometime secretary to prince charles edward, - . edited by r. fitzroy bell, advocate. (may .) . the compt buik of david wedderburne, merchant of dundee, - . with the shipping lists of the port of dundee, - . edited by a.h. millar. (may .) _for the year_ - . . the diplomatic correspondence of jean de montereul and the brothers de belliÈvre, french ambassadors in england and scotland, - . edited, with translation and notes, by j.g. fotheringham. vol. i. (june .) . the same. vol. ii. (jan. .) _for the year_ - . . scotland and the protectorate. letters and papers relating to the military government of scotland, from january to june . edited by c.h. firth, m.a. (march .) . papers illustrating the history of the scots brigade in the service of the united netherlands, - . edited by james ferguson. vol. i. - . (jan. .) , . macfarlane's genealogical collections concerning families in scotland; mss. in the advocates' library. vols. edited by j.t. clark, keeper of the library. (to be ready shortly.) _presented to the society by the trustees of the late sir william fraser, k.c.b._ _for the year_ - . . papers on the scots brigade. vol. ii. - . edited by james ferguson. (nov. .) . journal of a foreign tour in and , and portions of other journals, by sir john lauder, lord fountainhall. edited by donald crawford, sheriff of aberdeen, kincardine, and banff. (may .) . dispatches of papal envoys to queen mary during her reign in scotland. edited by the rev. j. hungerford pollen, s.j. _in preparation._ papers on the scots brigade. vol. iii. the diary of andrew hay of stone, near biggar, afterwards of craignethan castle, - . edited by a.g. reid from a manuscript in his possession. macfarlane's topographical collections. edited by j.t. clark. a translation of the statuta ecclesiÆ scoticanÆ, - , by david patrick, ll.d. sir thomas craig's de unione regnorum britanniÆ. edited, with an english translation, by david masson, ll.d., historiographer royal. records of the commissions of the general assemblies (_continued_), for the years - . register of the consultations of the ministers of edinburgh, and some other brethren of the ministry from divers parts of the land, meeting from time to time, since the interruption of the assembly , with other papers of public concernment, - . papers relating to the rebellions of and , with other documents from the municipal archives of the city of perth. a selection of the forfeited estates papers preserved in h.m. general register house and elsewhere. edited by a.h. millar. a translation of the historia abbatum de kynlos of ferrerius. by archibald constable, ll.d. documents relating to the affairs of the roman catholic party in scotland, from the year of the armada to the union of the crowns. edited by thomas graves law, lld. the loyall dissuasive. memorial to the laird of cluny in badenoch. written in , by sir Æneas macpherson. edited by the rev. a.d. murdoch. charters and documents relating to the grey friars and the cistercian nunnery of haddington. edited by j.g. wallace-james, m.b. negotiations for the union of england and scotland in - . edited by c. sandford terry, m.a. [illustration: sir henry hawkins and "jack." _photo by elliot & fry_.] the reminiscences of sir henry hawkins (baron brampton) edited by richard harris, k.c. preface. as a preface i wish to say only a very few words--namely, that but for the great pressure put upon me i should not have ventured to write, or allowed to be published, any reminiscences of mine, being very conscious that i could not offer to the public any words of my own that would be worth the time it would occupy to read them; but the whole merit of this volume is due to my very old friend richard harris, k.c., who has already shown, by his skill and marvellously attractive composition in reproducing my efforts in the tichborne case, what interest may be imparted to an otherwise very dry subject. in that work[a] he has done me much more than justice, and for this i thank him, with many good wishes for the success of this his new work, and with many thanks to those of the public who may take and feel an interest in such of my imperfect reminiscences as are here recorded. brampton. harrogate, _august , _. [footnote a: "illustrations in advocacy" (fourth edition, stevens and haynes).] editor's preface. this volume is the outcome of many conversations with lord brampton and of innumerable manuscript notes from his pen. i have endeavoured, as far as possible, to present them to the public in such a manner that, although chronological order has not been strictly adhered to, it has been, nevertheless, considering the innumerable events of lord brampton's career, carefully observed. apocryphal stories are always told of celebrated men, and of no one more than of sir henry hawkins during his career on the bench and at the bar; but i venture to say that there is no doubtful story in this volume, and, further, that there is not one which has ever been told exactly in the same form before. good stories, like good coin, lose by circulation. if there should be one or two in these reminiscences which have lost their image and superscription by much handling, i hope that the recasting which they have undergone will give them, not only the brightness of the original mint, but a wider circulation than they have ever known. the distinguishing characteristics by which lord brampton's stories may be known i have long been familiar with, and have no hesitation in saying that one or other, some or all, may be found in every anecdote that bears the genuine stamp. they are wit, humour, pathos, and tragedy. my claims in the production of this volume are confined to its _defects_, although lord brampton has been generous enough to attribute to me a share in its merits. richard harris. fitzjohn's avenue, hampstead, _october_ , . contents chapter i. at bedford school ii. in my uncle's office iii. second year--thesiger and platt--my first brief iv. at the old bailey in the old times v. mr. justice maule vi. an incident on the road to newmarket vii. an episode at hertford quarter sessions viii. a dangerous situation--a case of forgetfulness ix. the only "racer" i ever owned--sam linton, the dog-finder x. why i gave over card-playing xi. "codd's puzzle" xii. graham, the polite judge xiii. glorious old days--the hon. bob grimston, and many others--chicken-hazard xiv. peter ryland--the rev. mr. faker and the welsh will xv. tattersall's--baron martin, harry hill, and the old fox in the yard xvi. arising out of the "orsini affair" xvii. appointed queen's counsel--a serious illness--sam lewis xviii. the prize--fight on frimley common xix. sam warren, the author of "ten thousand a year" xx. the brighton card-sharping case xxi. the knebworth theatrical entertainments--sir edward bulwer lytton--charles dickens, charles mathews, macready, douglas jerrold xxii. crockford's--"hooks and eyes"--douglas jerrold xxiii. alderson, tomkins, and a free country--a problem in human nature xxiv. charles mathews--a harvest festival at the village church xxv. compensation--nice calculations in old days--experts--lloyd and i xxvi. election petitions xxvii. my candidature for barnstaple xxviii. the tichborne case xxix. a visit to sheffield--mrs. hailstone's danish boarhound xxx. an expert in handwriting--"do you know joe brown?" xxxi. appointed a judge--my first trial for murder xxxii. on the midland circuit xxxiii. jack xxxiv. two tragedies xxxv. the st. neots case xxxvi. a night at nottingham xxxvii. how i met an incorrigible punster xxxviii. the tilney street outrage--"are you not going to put on the black cap, my lord?" xxxix. several scenes xl. dr. lamson--a case of mistaken identity--a will case xli. mr.j.l. toole on the bench xlii. a full member of the jockey club xliii. the little mouse and the prisoner--the brutality of our old laws xliv. the last of lord campbell--wine and water--sir thomas wilde xlv. how i cross-examined prince louis napoleon xlvi. the new law allowing the accused to give evidence--the case of dr. wallace, the last i tried on circuit xlvii. a farewell memory of jack xlviii. old turf friends xlix. leaving the bench--lord brampton l. sentences li. cardinal manning--"our chapel" appendix the reminiscences of sir henry hawkins. (now lord brampton.) * * * * * chapter i. at bedford school. my father was a solicitor at hitchin, and much esteemed in the county of hertford. he was also agent for many of the county families, with whom he was in friendly intercourse. my mother was the daughter of the respected clerk of the peace for bedfordshire, a position of good influence, which might be, and is occasionally, of great assistance to a young man commencing his career at the bar. to me it was of no importance whatever. my father had a large family, sons and daughters, of whom only two are living. i mention this as an explanation of my early position when straitened circumstances compelled a most rigid economy. during no part of my educational career, either at school or in the inn of court to which i belonged, had i anything but a small allowance from my father. my life at home is as little worth telling as that of any other in the same social position, and i pass it by, merely stating that, after proper preparation, i was packed off to bedford school for a few years. my life there would have been an uninteresting blank but for a little circumstance which will presently be related. it was the custom then at this very excellent foundation to give mainly a classical education, and doubtless i attained a very fair proficiency in my studies. had i cultivated them, however, with the same assiduity as i did many of my pursuits in after-life, i might have attained some eminence as a professor of the dead languages, and arrived at the dignity of one of the masters of bedford. however, if i had any ambition at that time, it was not to become a professor of dead languages, but to see what i could make of my own. it is of no interest to any one that i had great numbers of peg-tops and marbles, or learnt to be a pretty good swimmer in the ouse. there was a greater swim prepared for me in after-life, and that is the only reason for my referring to it. in the year bedford schoolhouse occupied the whole of one side of st. paul's square, which faced the high street. from that part of the building you commanded a view of the square and the beautiful country around. the sleepy old bridge spanned the still more sleepy river, over which lay the quiet road leading to the little village of willshampstead, and it came along through the old square where the schoolhouse was. it was market day in bedford, and there was the usual concourse of buyers and sellers, tramps and country people in their sunday gear; farmers and their wives, with itinerant venders of every saleable and unsaleable article from far and near. i was in the upper schoolroom with another boy, and, looking out of the window, had an opportunity of watching all that took place for a considerable space. there was a good deal of merriment to divert our attention, for there were clowns and merry-andrews passing along the highroad, with singlestick players, punch and judy shows, and other public amusers. every one knows that the smallest event in the country will cause a good deal of excitement, even if it be so small an occurrence as a runaway horse. there was, however, no runaway horse to-day; but suddenly a great silence came over the people, and a sullen gloom that made a great despondency in my mind without my knowing why. public solemnity affects even the youngest of us. at all events, it affected me. presently--and deeply is the event impressed on my mind after seventy years of a busy life, full of almost every conceivable event--i saw, emerging from a bystreet that led from bedford jail, and coming along through the square and near the window where i was standing, a common farm cart, drawn by a horse which was led by a labouring man. as i was above the crowd on the first floor i could see there was a layer of straw in the cart at the bottom, and above it, tumbled into a rough heap, as though carelessly thrown in, a quantity of the same; and i could see also from all the surrounding circumstances, especially the pallid faces of the crowd, that there was something sad about it all. the horse moved slowly along, at almost a snail's pace, while behind walked a poor, sad couple with their heads bowed down, and each with a hand on the tail-board of the cart. they were evidently overwhelmed with grief. happily we have no such processions now; even justice itself has been humanized to some extent, and the law's cruel severity mitigated. the cart contained the rude shell into which had been laid the body of this poor man and woman's only son, _a youth of seventeen, hanged that morning at bedford jail for setting fire to a stack of corn_! he was now being conveyed to the village of willshampstead, six miles from bedford, there to be laid in the little churchyard where in his childhood he had played. he was the son of very respectable labouring people of willshampstead; had been misled into committing what was more a boyish freak than a crime, and was hanged. that was all the authorities could do for him, and they did it. this is the remotest and the saddest reminiscence of my life, and the only sad one i mean to relate, if i can avoid it. but years afterwards, when i became a judge, this picture, photographed on my mind as it was, gave me many a lesson which i believe was turned to good account on the judicial bench. it was mainly useful in impressing on my mind the great consideration of the surrounding circumstances of every crime, the _degree_ of guilt in the criminal, and the difference in the degrees of the same kind of offence. about this i shall say something hereafter. i remained at this school until i had acquired all the learning my father thought necessary for my future position, as he intended it to be, and much more than i thought necessary, unless i was to get my living by teaching latin and greek. in due course i was articled to my worthy uncle, the clerk of the peace, and, had i possessed my present experience, should have known that it was a diplomatic move of the most profound policy to enable me, if anything happened to him, to succeed to that important dignity. had i been ambitious of wealth, there were other offices which my uncle held, to the great satisfaction of the county as well as his own. these would naturally descend to me, and i should have been in a position of great prominence in the county, with a very respectable income. but i hated the drudgery of an attorney's office. in six months i saw enough of its documentary evidence to convince me that i hated it from my heart, and that nothing on earth would induce me to become a solicitor. i took good care, meek as i was, to show this determination to my friends. it was my only chance of escape. but while remaining there it was my duty to work, however hateful the task, and i did so. even this, to me, most odious business had its advantages in after-life. i attended one morning with my uncle the petty sessions of hertford, where, no doubt, i was supposed to enlarge my knowledge of sessions practice; it certainly did so, for i knew nothing, and received a lesson, which is not only my earliest recollection, but my first experience in _advocacy_. at this hertford petty sessional division the chairman was a somewhat pompous clergyman, but very devoted to his duties. he was strict in his application of the law when he knew it, but it was fortunate for some delinquents, although unfortunate for others, that he did not always possess sufficient knowledge to act independently of his clerk's opinion, while the clerk's opinion did not always depend upon his knowledge of law. an impudent vagabond was brought up before this clergyman charged with a violent and unprovoked assault on a man in a public-house. he was said to have gone into the room where the prosecutor was, and to have taken up his jug of ale and appropriated the contents to his own use without the owner's consent. the prosecutor, annoyed at the outrage, rose, and was immediately knocked down by the interloper, and in falling cut his head. there was to my untutored mind no defence, but the accused was a man of remarkable cunning and not a little ingenuity. he knew the magistrate well, and his special weakness, which was vanity. by his knowledge the man completely outwitted his adversary, and shifted the charge from himself on to the prosecutor's shoulders. the curious thing was he cross-examined the reverend chairman instead of the witness, which i thought a master-stroke of policy, if not advocacy. "you know this public-house, sir?" he asked. the reverend gentleman nodded. "i put it to yourself, sir, as a gentleman: how would you have liked it if another man had come to your house and drunk your beer?" there was no necessity to give an answer to this question. it answered itself. the reverend gentleman would not have liked it, and, seeing this, the accused continued,-- "well, your honour, this here man comes and takes my beer. "'halloa, jack!' i ses, 'no more o' that.' "'no,' he says, 'there's no more; it's all gone.' "'stop a bit," says i; 'that wun't do, nuther.' "'that wun't do?' he says. 'wool that do?' and he ups with the jug and hits me a smack in the mouth, and down i goes clean on the floor; he then falls atop of me and right on the pot he held in his hand, which broke with his fall, bein' a earthenware jug, and cuts his head, and 'sarve him right,' i hopes your honour'll say; and the proof of which statement is, sir, that there's the cut o' that jug on his forehead plainly visible for anybody to see at this present moment. now, sir, what next? for there's summat else. "'jack,' says i, 'i'll summon you for this assault.' "'yes,' he says, 'and so'll i; i'll have ee afore his worship mr. knox.' "'afore his worship mr. knox?' says i. 'and why not afore his worship the rev. mr. hull? he's the gentleman for my money--a real gentleman as'll hear reason, and do justice atween man and man.' "'what!' says jack, with an oath that i ain't going to repeat afore a clergyman--'what!' he says, 'a d--d old dromedary like that!' "'dromedary, sir,' meaning your worship! did anybody ever hear such wile words against a clergyman, let alone a magistrate, sir? and he then has the cheek to come here and ask you to believe him. 'old dromedary!' says he--' a d--d old dromedary.'" mr. hull, the reverend chairman, was naturally very indignant, not that he minded on his own account, as he said--that was of no consequence--but a man who could use such foul language was not to be believed on his oath. he therefore dismissed the summons, and ordered the prosecutor to pay the costs. i think both my father and uncle still nursed the idea that i was to become the good old-fashioned county attorney, for they perpetually rang in my ears the praises of "our bench" and "our chairman," out bench being by far the biggest thing in hertfordshire, except when a couple of notables came down to contest the heavy-weight championship or some other noble prize. for myself, i can truly say i had no ambition at this time beyond earning my bread, for i pretty well knew i had to trust entirely to my own exertions. the fortunate have many friends, and it is just the fortunate who are best without them. i had none, and desired none, if they were to advise me against my inclinations. my term being now expired, for i loyally pursued my studies to the bitter end, my mind was made up, ambition or no ambition, for the bar or the stage. like most young men, i loved acting, and quite believed i would succeed. my passion for the stage was encouraged by an old schoolfellow of my father's when he was at rugby, for whom i had, as a boy, a great admiration. i forget whether in after-life i retained it, for we drifted apart, and our divergent ways continued their course without our meeting again. any worse decision, so far as my friends were concerned, could not be conceived. they both remonstrated solemnly, and were deeply touched with what they saw was my impending ruin, especially the ruin of their hopes. in vain, however, did they attempt to persuade me; my mind was as fixed as the mind of two-and-twenty can be. having warned me in terms of severity, they now addressed me in the language of affection, and asked how i could be so headstrong and foolish as to attempt the bar, at which it was clear that i could only succeed after working about twenty years as a special pleader. they next set before me, as a terrible warning, my uncle, another brother of my father's, who had gone to the bar, and i will not say never had any practice, for i believe he practised a good deal on the norfolk broads, and once had a brief at sessions concerning the irremovability of a pauper, which he conducted much to the satisfaction of the pauper, although i believe the solicitor never gave him another brief. however, our family trio could not go on for ever quarrelling, and at last they made a compromise with me, much to my satisfaction. my father undertook to allow me a hundred a year for five years, and after that time it was to cease automatically, whether i sank or swam, with this solemn proviso, however, for the soothing of his conscience: that if i sank _my fate was to be upon my own head_! i agreed also to that part of the business, and accepting the terms, started for london. chapter ii. in my uncle's office. i ought to mention, in speaking of my ancestors, that i had a very worthy godfather who was half-brother to my father. he was connected with a family of great respectability at royston, in cambridgeshire, and inherited from them a moderate-sized landed estate. a portion of this property was a little farm situate at _brampton_, in huntingdonshire, from which village i took the title i now enjoy. the farm was left, however, to my aunt for life, who lived to a good old age, as most life-tenants do whom you expect to succeed, and i got nothing until it was of no use to me. when i came into possession i was making a very fair income at the bar, and the probability is my aunt did me, unconsciously, the greatest kindness she could in keeping me out of it so long. so much for my ancestors. about the rest of them i know nothing, except an anecdote or two. there was one more event in my boyhood which i will mention, because it is historic. i assisted my father, on my little pony, in proclaiming william iv. on his accession to the throne, and i mention it with the more pride because, having been created a peer of the realm by her late gracious majesty queen victoria, i was qualified to assist as a member of the privy council at the accession of his present most gracious majesty, and had the honour to hear him announce himself as _king edward of england_ by the title of _edward the seventh_! arrived in london, full of good advice and abundance of warnings as to the fate that awaited me, i entered as a pupil the chambers of a famous special pleader of that time, whose name was frederick thompson. this was in the year . i have the right to say i worked very hard there for several months, and studied with all my might; nor was the study distasteful. i was learning something which would be useful to me in after-life. moreover, being endowed with pluck and energy, i wanted to show that my uncles--for the godfather warned me as well--and my father were false prophets. so i gave myself up entirely to the acquisition of knowledge, this being absolutely necessary if i was to make anything of my future career. "sink or swim," my father said, was the alternative, so i was resolved to keep my head above water if possible. after being at thompson's my allotted period, i next went to mr. george butt, a very able and learned man, who afterwards became a queen's counsel, but never an advocate. i acquired while with him a good deal of knowledge that was invaluable, became his favourite pupil, and was in due course entrusted with papers of great responsibility, so that in time it came to pass that mr. butt would send off my opinions without any correction. these are small things to talk of now, but they were great then, and the foundation of what, to me, were great things to come, although i little suspected any of them at that time; and as i look back over that long stretch of years, i have the satisfaction of feeling that i did not enter upon my precarious career without doing my utmost to fit myself for it. in those early days of the century prize-fights were very common in england. the noble art of self-defence was patronized by the greatest in the land. society loved a prize-fight, and always went to see it, as society went to any other fashionable function. magistrates went, and even clerical members of that august body. as magistrates it may have been their duty to discountenance, but as county gentlemen it was their privilege to support, the noble champions of the art, especially when they had their money on the event. the magistrates, if their presence was ever discovered, said they went to prevent a breach of the peace, but if they were unable to effect this laudable object, they looked on quietly so as to prevent any one committing a breach of the peace on themselves. their individual heads were worth something. it was to one of these exhibitions of valour, between _owen swift_ and _brighton bill_, that a reverend and sporting magistrate took my brother john, a nice good schoolboy, in a tall hat. he thought it was the right thing that the boy should _see the world_. i thought also that what was good for john, as prescribed by his clerical adviser, would not be bad for me, so i went as well. there was a great crowd, of course, but i kept my eye on john's tall chimney-pot hat, knowing that while i saw that i should not lose john. presently there was a stir, for brighton bill had landed a tremendous blow on the cheek of owen swift, and while we were applauding, as is the custom at prize-fights and public dinners, a cunning pickpocket standing immediately behind john pushed the tall chimney-pot hat tightly down over the boy's eyes. his little hands, which had been in his pockets, went up in a moment to raise his hat, so that he might see the world, the big object he had come to see; and immediately in went two other hands, and out came the savings of john's life--two precious half-crowns, which he had shown to me with great pride that very morning! when he saw the world again the rogue had disappeared. the famous place for these pugilistic encounters, or one of the famous places, was a spot called noon's folly, which was within a very few miles of royston, where the counties of cambridge, suffolk, essex, and hertfordshire meet, or most of them. that was the scene of many a stiff encounter; and although, of course, there were both magisterial and police interference when the knowledge reached them that a fight was about to take place within their particular jurisdiction, by some singular misadventure the knowledge never reached them until their worships were returning from the battle. all was over before any _official_ communication was made. * * * * * i was entered of the middle temple on april , , and remained with mr. butt until i had kept sufficient terms to qualify me to take out a licence to plead on my own account, which i did at the earliest possible date. this was a great step in my career, although, of course, the licence did not enable me to plead in court, as i was not called to the bar. if work came i should now be in a fair way to attain independence. but the prospect was by no means flattering; it was, in fact, all but hopeless while the position of a special pleader was not my ambition. the lookout, in fact, was anything but encouraging from the fifth floor of _no. elm court_--i mean prospectively. it was a region not inaccessible, of course, but it looked on to a landscape of chimney-pots, not one of which was likely to attract attorneys; it was cheap and lonely, dull and miserable--a melancholy altitude beyond the world and its companionship. had i been of a melancholy disposition i might have gone mad, for hope surely never came to a fifth floor. but there i sat day by day, week by week, and month by month, waiting for the knock that never came, hoping for the business that might never come. hundreds of times did i listen with vain expectations to the footsteps on the stairs below--footsteps of attorneys and clerks, messengers and office-boys. i knew them all, and that was all i knew of them. down below at the bottom flight they tramped, and there they mostly stopped. the ground floor was evidently the best for business; but some came higher, to the first floor. that was a good position; there were plenty of footsteps, and i could tell they were the footsteps of clients. a few came a little higher still, and then my hopes rose with the footsteps. now some one had come up to the third floor: he stopped! alas! there was the knock, one single hard knock: it was a junior clerk. the sound came all too soon for me, and i turned from my own door to my little den and looked out of my window up into the sky, from whence it seemed i might just as well expect a brief as from the regions below. this was not quite true. on another occasion some bold adventurer ascended with asthmatical energy to the _fourth floor_, and i thought as i heard him wheeze he would never have breath enough to get down again, and wondered if the good-natured attorneys kept these wheezy old gentlemen out of charity. but it was rare indeed that the climber, unless it was the rent collector, reached that floor. the fifth landing was too remote for the postman, for i never got a letter--at least so it seemed; and no squirrel watching from the topmost bough of the tallest pine could be more lonely than i. at last i thought a step had passed even the fourth landing, and was approaching mine; but i would not think too fast, and damped my hopes a little on purpose lest they should burn too brightly and too fast. i was not mistaken: there _was_ a footstep on my landing, and i listened for the one heavy knock. it seemed to me i waited about an hour and a half, judging by the palpitations of my heart, and wished the man had knocked as vigorously. but i was rewarded: the knocker fell, and as my boy was away with the toothache, i opened the door myself. he was the same wheezy man i had heard below some time before; and i really seem to have liked asthmatical people ever since--except when i became a judge and they disturbed me in court. "papers!" that is enough to say to any one who understands the situation. you may be sure i gave them my best attention, that they were finished promptly, and, as i hoped, in the best style. if i had required any additional incentive to keep me to my daily task of watching, this would have been sufficient; but i wanted none. i knew that my whole future depended upon it, and there i was from ten in the morning till ten at night. my first fee was small, but it was the biggest fee i ever had. it was s. d. i was only a special pleader, and with some papers our fees were even less; we only had to _draw_ pleadings, not to open them in court--that comes after you are called to the bar. drawing them means really drawing the points of the case for counsel, and opening them means a gabbling epitome of them to the jury, which no jury in this world ever yet understood or ever will. this little matter was the forerunner of others, and by little and little i steadily went on, earning a few shillings now and a few shillings then, but, best of all, becoming known little by little here and there. i was aware that some knowledge of the world would be necessary for me when i once got into it by way of business as an advocate, so i came to the conclusion that it would be well to commence that branch of study as soon as i closed the other for the day--or rather for the night. i had not far to go to school, only to the haymarket and its delightful purlieus; and there were the best teachers to be found in the world, and the most recondite studies. for all these i kept, as the great politicians say, an open mind, and learned a great deal which stood me in good stead in after-life. it is not necessary, i suppose, in writing these reminiscences, to describe all i saw--at least i hope not. manners have so changed since that time that people who have no imagination would not believe me, and those who have would imagine i was exaggerating. so i must skip this portion of my youthful studies, merely saying that i saw nearly, if not _quite_, all the life which was to be seen in london; and i am sure i am not exaggerating when i say that that would nearly fill an octavo volume of itself. there is so much to be seen in london, as a dear old lady i used to drink tea with once told me. but she did not know more than i, for she had never seen the night-houses, gambling hells, and other places of amusement that at that time were open all night long, nor had she seen the ghastly faces of the morning. i attribute my escaping the consequences of all these allurements to the beautiful influence which my mother in early life exercised over me, as i attribute my knowledge of them to the removal of the restraint with which my earlier years had been curbed. my mother died before i came to london, but undoubtedly her influence was with me, although i broke loose, as a matter of course, from all paternal control. but i was never a "man about town." to be that you must have plenty of money or none at all, and in either case you are an object to avoid. i had, nevertheless, a great many pleasures that a young man from the country can enjoy. i loved horse-racing, cricket, and the prize-ring. it was not because pugilism was a fashionable amusement in those days that i attended a "set-to" occasionally; i went on my own account, not to ape people in the fashionable world, and enjoyed it on my own account, not because they liked it, but because i did. my rent at this time of my entrance into the fashionable world was £ a year; my laundress, perhaps, a little less. she earned it by coming up the stairs; but she was a good old soul. i remembered her long years after, and always with gratitude for her many kindnesses in those gloomy days. her name was hannem. of course, i had to buy the necessary books for my professional use, coals, and other things, and after paying all these i had to live on the narrow margin of my £ a year. this recollection is very pleasing. i never got into debt, and never wanted; but i had to be frugal and avoid every unnecessary expense. but the time at last came when i was no longer to rest on my lonely perch at the top of elm court. i had kept my terms, and was duly called to the bar of the middle temple on may , . just fifty years after, when i was a judge, and almost the senior bencher of my inn, our illustrious sovereign, then prince of wales, who is also a bencher of the middle temple, favoured us with his presence at dinner, and did me the honour to propose my health in a gracious speech. on returning thanks for this kindness, i told the crowded audience of my _jubilee_, and pointed out the spot where fifty years before i had held my call party. chapter iii. second year--thesiger and platt--my first brief. in my second year i made fifty pounds, the sweetest fifty pounds i ever made. i had no longer any weary waiting, for there was no weariness in it, and i confess at this time my sole idea, and i may add my only ambition, was to relieve myself of all obligations to my father. if i could accomplish this, i should have vindicated the step i had taken, and my father would have no further right, whatever reason he might think he had, to complain. my third year came, and then, to my great joy, finding that i was earning more than the hundred pounds he allowed me, i wrote and informed him, with all proper expressions of gratitude, that i should no longer need his assistance, and from that time i never had a single farthing that i did not earn. i am sure i was prouder of that than of my peerage, for i experienced for the first time the joyous pride of independence. there is no fruit of labour so sweet as that. but i no sooner began to obtain a little success than my rivals and others tried to deprive me of the merit of it, if merit there was--"oh, of course his father and uncle are both solicitors in the county;" while one of the local newspapers years after was good enough to publish a paragraph which stated that i owed all my success to my father's office. this, of course, does not need contradiction. an occasional small brief from hitchin was the beginning and the end of my father's influence, while sessions practice was not the practice i hoped to finish my career with, although i had little hopes of eminence. certainly if i had i should have known that eminence could not come from hitchin. i chose the home circuit, and did not leave it till i was made a judge. it is impossible to forget the kindness i received from its members throughout my whole career. there was a brotherly feeling amongst us, which made life very pleasant. there were several celebrated men on the home circuit when i joined. amongst them were thesiger and platt. this was long before the former became attorney-general, which took place in . he afterwards was lord chancellor, and took his title from the little county town where probably he obtained his start in the career which ended so brilliantly. platt became a baron of the exchequer. thesiger was a first-rate advocate, and, i need not say, was at all times scrupulously fair. he had a high sense of honour, and was replete with a quiet, subtle humour, which seemed to come upon you unawares, and, like all true humour, derived no little of its pleasure from its surprise. in addition to his abilities, thesiger was ever kind-hearted and gentle, especially in his manner towards juniors. i know that he sympathized with them, and helped them whenever he had an opportunity. it did not fall to my lot to hold many briefs with him, but i am glad to say that i had some, because i shall not forget the kindness and instruction i received from him. platt was an advocate of a different stamp. he also was kind, and in every way worthy of grateful remembrance. he loved to amuse especially the junior bar, and more particularly in court. he was a good natural punster, and endowed with a lively wit. the circuit was never dull when platt was present; but there was one trait in his character as an advocate that judges always profess to disapprove of--he loved popular applause, and his singularly bold and curious mode of cross-examination sometimes brought him both rebuke and hearty laughter from the most austere of judges. he dealt with a witness as though the witness was putty, moulding him into any grotesque form that suited his humour. no evidence could preserve its original shape after platt had done with it. he had a coaxing manner, so much so that a witness would often be led to say what he never intended, and what afterwards he could not believe he had uttered. thesiger, who was his constant opponent, was sometimes irritated with platt's manner, and on the occasion i am about to mention fairly lost his temper. it was in an action for nuisance before tindal, chief justice of the common pleas, at croydon assizes. thesiger was for the plaintiff, who complained of a nuisance caused by the bad smells that emanated from a certain tank on the defendant's premises, and called a very respectable but ignorant labouring man to prove his case. the witness gave a description of the tank, not picturesque, but doubtless true, and into this tank all kinds of refuse seem to have been thrown, so that the vilest of foul stenches were emitted. platt began his cross-examination of poor hodge by asking him in his most coaxing manner to describe the character and nature of the various stenches. had hodge been scientific, or if he had had a little common sense, he would have simply answered "_bad_ character and _ill_-nature;" but he improved on this simplicity, and said,-- "some on 'em smells summat _like paint_." this was quite sufficient for platt. "come now," said he, "that's a very sensible answer. you are aware, as a man of undoubted intelligence, that there are various colours of paint. had this smell any _particular colour_, think you?" "wall, i dunnow, sir." "don't answer hurriedly; take your time. we only want to get at the truth. now, what colour do you say this smell belonged to?" "wall, i don't raightly know, sir." "i see. but what do you say to _yellow_? had it a yellow smell, think you?" "wall, sir, i doan't think ur wus yaller, nuther. no, sir, not quite yaller; i think it was moore of a blue like." "a blue smell. we all know a blue smell when we see it." of course, i need not say the laughter was going on in peals, much to platt's delight. tindal was simply in an ecstasy, but did all he could to suppress his enjoyment of the scene. then platt resumed,-- "you think it was more of a blue smell like? now, let me ask you, there are many kinds of blue smells, from the smell of a blue peter, which is salt, to that of the sky, which depends upon the weather. was it dark, or--" "a kind of sky-blue, sir." "more like your scarf?" up went hodge's hand to see if he could feel the colour. "yes," said he, "that's more like--" "zummut like your scarf?" "yes, sir." then he was asked as to a variety of solids and liquids; and the man shook his head, intimating that he could go a deuce of a way, but that there were bounds even to human knowledge. then platt questioned him on less abstruse topics, and to all of his questions he kept answering,-- "yes, my lord." "were fish remnants," asked platt, "sometimes thrown into this reservoir of filth, such as old cods' heads with goggle eyes?" "yes, my lord." "_rari nantes in gurgite vasto_?" "yes, my lord." thesiger could stand it no longer. he had been writhing while the court had been roaring with laughter, which all the ushers in the universe could not suppress. "my lord, my lord, there must be some limit even to cross-examination by my friend. does your lordship think it is fair to suggest a classical quotation to a respectable but illiterate labourer?" tindal, who could not keep his countenance--and no man who witnessed the scene could--said,-- "it all depends, mr. thesiger, whether this man understands latin." whereupon platt immediately turned to the witness and said,-- "now, my man, attend: _rari nantes in gurgite vasto_. you understand that, do you not?" "yes, my lord," answered the witness, stroking his chin. tindal, trying all he could to suppress his laughter, said: "mr. thesiger, the witness says he understands the quotation, and as you have no evidence to the contrary, i do not see how i can help you." of course, there was a renewal of the general laughter, but thesiger, in his reply, turned it on platt. this was my first appearance on circuit, and my first lesson from a great advocate in the art of caricature. * * * * * no man at the bar can forget the joy of his first brief--that wonderful oblong packet of white papers, tied with the mysterious pink tape, which his fourth share of the diminutive clerk brings him, marked with the important "i gua." i speak not to stall-fed juniors who have not to wait till their merits are discovered, and who know that whosoever may watch and wait and hope or despair, they shall have enough. all blessings go with them; i never envied them their heritage. they are born to briefs as the sparks fly upwards. i tell my experience to those who will understand and appreciate every word i say--to men who have to make their way in the world by their own exertions, and live on their own labour or die of disappointment. there is one consolation even for the wretched waiters on solicitors' favours, and that is, that the men who have never had to work their way seldom rise to eminence or to any position but respectable mediocrity. they never knew hope, and will never know what it is to despair, or to nibble the short herbage of the common where poorer creatures browse. a father never looked on his firstborn with more pleasure than a barrister on his first brief. if the tower guns were announcing the birth of an heir to the throne, he would not look up to ask, "what is that?" it was the turning-point of my life, for had there been no first brief pretty soon, i should have thought my kind relations' predictions were about to be verified. but i should never have returned home; there was still the stage left, on which i hoped to act my part. strange to say, my first brief, like almost everything in my life, had a little touch of humour in it. i was instructed to defend a man at hertford sessions for stealing a wheelbarrow, and unfortunately the wheelbarrow was found on him; more unfortunate still--for i might have made a good speech on the subject of the _animus furandi_--the man not only told the policeman he stole it, but pleaded "guilty" before the magistrates. i was therefore in the miserable condition of one doomed to failure, take what line i pleased. there was nothing to be said by way of defence, but i learnt a lesson never to be forgotten. being a little too conscientious, i told my client, the attorney, that in the circumstances i must return the brief, inasmuch as there was no defence for the unhappy prisoner. the attorney seemed to admire my principle, and instead of taking offence, smiled in a good-natured manner, and said it was no doubt a difficult task he had imposed on me, and he would exchange the brief for another. he kept his word, and by-and-by returned with a much easier case--a prosecution where the man pleaded "guilty." it was a grand triumph, and i was much pleased. those were early days to begin picking and choosing briefs, for no man can do that unless he is much more wanted by clients than in want of them; but i learned the secret in after life of a great deal of its success. i was, however, a little chagrined when i saw the mistake i had made. rodwell was leader of the sessions, and ought to have been far above a guinea brief; judge then of my surprise when i saw that same brief a few minutes after accepted by that great man--the brief i had refused because there was nothing to be said on the prisoner's behalf. my curiosity was excited to see what rodwell would do with it, and what defence he would set up. it was soon gratified. he simply admitted the prisoner's guilt, and hoped the chairman, who was lord salisbury, would deal leniently with him. i could have done that quite as well myself, and pocketed the guinea. from that moment i resolved never to turn a case away because it was hopeless. i subjoin a copy of my first brief for the prosecution. it must be remembered that in those days the gallows was a very popular institution. they punished severely even trivial offences, and this case would have been considered a very serious one; while a sentence of seven years' transportation was almost as good as an acquittal. _herts. no. _. michaelmas sessions, . regina _v_. elizabeth norman. brief for the prosecution. mr. hawkins. i gua. _h. hawkins_. plea--guilty. h.h. oct. , . transported for years. h.h. _cobliam_. ware. these are my notes:-- _sep_. . mr. page. silk shawl. apprehension. various accounts. exam. before j---- j----. propy found. mrs. stevens,} mr. johnson, } witnesses. i made a rule throughout my professional life to note my cases with the greatest care. chapter iv. at the old bailey in the old times. it is a vast space to look back over sixty years of labour, and yet there seems hardly a scene or an event of any consequence, that is not reproduced in my mind with a vividness that astonishes me. in my earlier visits to her majesty's courts of justice my principal business was to study the queen's counsel and serjeants, and they were worthy the attention i bestowed on them. they all belonged to different schools of advocacy, and some knew very little about it. i went to the old bailey, a den of infamy in those times not conceivable now, and i verily believe that no future time will produce its like--at least i hope not. its associations were enough to strike a chill of horror into you. it was the very cesspool for the offscourings of humanity. i had no taste for criminal practice in those days, except as a means of learning the art of advocacy. in these cases, presided over by a judge who knows his work, the rules of evidence are strictly observed, and you will learn more in six months of practical advocacy than in ten years elsewhere. the criminal court was the best school in which to learn your work of cross-examination and examination-in-chief, while the courts of equity were probably the worst. but i shall not dwell on my struggles in connection with the old bailey at that early period of my life. what will be more interesting, perhaps, are some curious arrangements which they had for the conduct of business and the entertainment of the judges. these are a too much neglected part of our history, and when referred to in reminiscences are generally referred to as matters for jocularity. they exercised, however, a serious influence on the minds and feelings of the people, as well as their manners; more so than a hundred subjects with which the historian or the novelist sometimes deals. in all cases of unusual gravity three judges sat together. offences that would now be treated as not even deserving of a day's imprisonment in many cases were then invariably punished with death. it was not, therefore, so much the nature of the offence as the importance of it in the eyes of the judges that caused three of them to sit together and try the criminals. they sat till five o'clock right through, and then went to a sumptuous dinner provided by the lord mayor and aldermen. they drank everybody's health but their own, thoroughly relieved their minds from the horrors of the court, and, having indulged in much festive wit, sometimes at an alderman's expense, and often at their own, returned into court in solemn procession, their gravity undisturbed by anything that had previously taken place, and looking the picture of contentment and virtue. another dinner was provided by the sheriffs; this was for the recorder, common serjeant, and others, who took their seats when their lordships had arisen. i ought to mention one important dignitary--namely, the chaplain of newgate--whose fortunate position gave him the advantage over most persons: for he _dined at both these dinners_, and assisted in the circulation of the wit from one party to another; so that what my lord chief justice had made the table roar with at five o'clock, the recorder and the common serjeant roared with at six, and were able to retail at their family tables at a later period of the evening. it was in that way so many good things have come down to the present day. the reverend gentleman alluded to of course attended the court in robes, and his only, but solemn, function was to say "amen" when the sentence of death was pronounced by the judge. there were curious old stories, too, about my lords and old port at that time which are not of my own reminiscences, and therefore i shall do no more than mention them in order to pass on to what i heard and saw myself. the first thing that struck me in the after-dinner trials was the extreme rapidity with which the proceedings were conducted. as judges and counsel were exhilarated, the business was proportionately accelerated. but of all the men i had the pleasure of meeting on these occasions, the one who gave me the best idea of rapidity in an after-dinner case was mirehouse. let me illustrate it by a trial which i heard. jones was the name of the prisoner. his offence was that of picking pockets, entailing, of course, a punishment corresponding in severity with the barbarity of the times. it was not a plea of "guilty," when perhaps a little more inquiry might have been necessary; it was a case in which the prisoner solemnly declared he was "not guilty," and therefore had a right to be tried. the accused having "held up his hand," and the jury having solemnly sworn to hearken to the evidence, and "to well and truly try, and true deliverance make," etc., the witness for the prosecution climbs into the box, which was like a pulpit, and before he has time to look round and see where the voice comes from, he is examined as follows by the prosecuting counsel:-- "i think you were walking up ludgate hill on thursday, th, about half-past two in the afternoon, and suddenly felt a tug at your pocket and missed your handkerchief, which the constable now produces. is that it?" "yes, sir." "i suppose you have nothing to ask him?" says the judge. "next witness." constable stands up. "were you following the prosecutor on the occasion when he was robbed on ludgate hill? and did you see the prisoner put his hand into the prosecutor's pocket and take this handkerchief out of it?" "yes, sir." judge to prisoner: "nothing to say, i suppose?" then to the jury: "gentlemen, i suppose you have no doubt? i have none." jury: "guilty, my lord," as though to oblige his lordship. judge to prisoner: "jones, we have met before--we shall not meet again for some time--seven years' transportation. next case." time: two minutes fifty-three seconds. perhaps this case was a high example of expedition, because it was not always that a learned counsel could put his questions so neatly; but it may be taken that these after-dinner trials did not occupy on the average more than _four minutes_ each. chapter v. mr. justice maule. of course, in those days there were judges of the utmost strictness as there are now, who insisted that the rules of evidence should be rigidly adhered to. i may mention, one, whose abilities were of a remarkable order, and whose memory is still fresh in the minds of many of my contemporaries--i mean mr. justice maule. his asthmatic cough was the most interesting and amusing cough i ever heard, especially when he was saying anything more than usually humorous, which was not infrequently. he was a man of great wit, sound sense, and a curious humour such as i never heard in any other man. he possessed, too, a particularly keen apprehension. to those who had any real ability he was the most pleasant of judges, but he had little love for mediocrities. no man ever was endowed with a greater abhorrence of hypocrisy. i learnt a great deal in watching him and noting his observations. one day a very sad case was being tried. it was that of a man for killing an infant, and it was proposed by the prosecution to call as a witness a little brother of the murdered child. the boy's capacity to give evidence, however, was somewhat doubted by the counsel for the crown, john clark, and it did honour to his sense of fairness. having asked the little boy a question or two as to the meaning of an oath, he said he had some doubt as to whether the witness should be admitted to give evidence, as he did not seem to understand the nature of an oath, and the boy was otherwise deficient in religious knowledge. he was asked the usual sensible questions which st. thomas aquinas himself would have been puzzled to answer; and being a mere child of seven--or at most eight--years of age, without any kind of education, was unable to state what the exact nature of an oath was. having failed in this, he was next asked what, when they died, became of people who told lies. "if he knows that, it's a good deal more than i do," said maule. "attend to me," said the crown counsel. "do you know that it's wicked to tell lies?" "yes, sir," the boy answered. "i don't think," said the counsel for the prosecution, "it would be safe to swear him, my lord; he does not seem to know anything about religion at all.--you can stand down." "stop a minute, my boy," says maule; "let me ask you a question or two. you have been asked about a future state--at least i presume that was at the bottom of the gentleman's question. i should like to know what you have been taught to believe. what will become of _you_, my little boy, when you die, if you are so wicked as to tell a lie?" "_hell fire_," answered the boy with great promptitude and boldness. "right," said maule. "now let us go a little further. do you mean to say, boy, that you would go to hell fire for telling _any_ lie?" "_hell fire_, sir," said the boy emphatically, as though it were something to look forward to rather than shun. "take time, my boy," said maule; "don't answer hurriedly; think it over. suppose, now, you were accused of stealing an apple; how would that be in the next world, think you?" "_hell fire_, my lord!" "very good indeed. now let us suppose that you were disobedient to your parents, or to one of them; what would happen in that case?" "_hell fire_, my lord!" "exactly; very good indeed. now let me take another instance, and suppose that you were sent for the milk in the morning, and took _just a little sip_ while you were carrying it home; how would that be as regards your future state?" "_hell fire_!" repeated the boy. upon this clark suggested that the lad's absolute ignorance of the nature of an oath and divine things rendered it imprudent to call him. "i don't know about that," said maule; "he seems to me to be very sound, and most divines will tell you he is right." "he does not seem to be competent," said the counsel. "i beg your pardon," returned the judge, "i think he is a very good little boy. he thinks that for every wilful fault he will go to hell fire; and he is very likely while he believes that doctrine to be most strict in his observance of truth. if you and i believed that such would be the penalty for every act of misconduct we committed, we should be better men than we are. let the boy be sworn." on one occasion, before maule, i had to defend a man for murder. it was a terribly difficult case, because there was no defence except the usual one of insanity. the court adjourned for lunch, and woollet (who was my junior) and i went to consultation. i was oppressed with the difficulty of my task, and asked woollet what he thought i could do. "oh," said he in his sanguine way, "make a hell of a speech. you'll pull him through all right. let 'em have it." "i'll give them as much burning eloquence as i can manage," said i, in my youthful ardour; "but what's the use of words against facts? we must really stand by the defence of insanity; it is all that's left." "call the clergyman," said woollet; "he'll help us all he can." with that resolution we returned to court. i made my speech for the defence, following woollet's advice as nearly as practicable, and really blazed away. i think the jury believed there was a good deal in what i said, for they seemed a very discerning body and a good deal inclined to logic, especially as there was a mixture of passion in it. we then called the clergyman of the village where the prisoner lived. he said he had been vicar for thirty-four years, and that up to very recently, a few days before the murder, the prisoner had been a regular attendant at his church. he was a married man with a wife and two little children, one seven and the other nine. "did the wife attend your ministrations, too?" asked maule. "not so regularly. suddenly," continued the vicar, after suppressing his emotion, "without any apparent cause, the man became _a sabbath-breaker_, and absented himself from church." this evidence rather puzzled me, for i could not understand its purport. maule in the meantime was watching it with the keenest interest and no little curiosity. he was not a great believer in the defence of insanity--except, occasionally, that of the solicitor who set it up--and consequently watched the vicar with scrutinizing intensity. "have you finished with your witness, mr. woollet?" his lordship inquired. "yes, my lord." maule then took him in hand, and after looking at him steadfastly for about a minute, said,-- "you say, sir, that you have been vicar of this parish for _four-and-thirty years_?" "yes, my lord." "and during that time i dare say you have regularly performed the services of the church?" "yes, my lord." "did you have week-day services as well?" "every tuesday, my lord." "and did you preach your own sermons?" "with an occasional homily of the church." "your own sermon or discourse, with an occasional homily? and was this poor man a regular attendant at all your services during the whole time you have been vicar?" "until he killed his wife, my lord." "that follows--i mean up to the time of this sabbath-breaking you spoke of he regularly attended your ministrations, and then killed his wife?" "exactly, my lord." "never missed the sermon, discourse, or homily of the church, sunday or week-day?" "that is so, my lord." "did you write your own sermons, may i ask?" "oh yes, my lord." maule carefully wrote down all that our witness said, and i began to think the defence of insanity stood on very fair grounds, especially when i perceived that maule was making some arithmetical calculations. but you never could tell by his manner which way he was going, and therefore we had to wait for his next observation, which was to this effect:-- "you have given yourself, sir, a very excellent character, and doubtless, by your long service in the village, have richly deserved it. you have, no doubt, also won the affection of all your parishioners, probably that of the bishop of your diocese, by your incomparable devotion to your parochial duties. the result, however, of your indefatigable exertions, so far as this unhappy man is concerned, comes to this--" his lordship then turned and addressed his observations on the result to me. "this gentleman, mr. hawkins, has written with his own pen and preached or read with his own voice to this unhappy prisoner about _one hundred and four sunday sermons or discourses, with an occasional homily, every year_." there was an irresistible sense of the ludicrous as maule uttered, or rather growled, these words in a slow enunciation and an asthmatical tone. he paused as if wondering at the magnitude of his calculations, and then commenced again more slowly and solemnly than before. "these," said he, "added to the week-day services--make--exactly _one hundred and fifty-six sermons, discourses, and homilies for the year_." (then he stared at me, asking with his eyes what i thought of it.) "these, again, being continued over a space of time, comprising, as the reverend gentleman tells us, no less than _thirty-four years_, give us a grand total of _five thousand three hundred and four sermons, discourses, or homilies_ during this unhappy man's life." maule's eyes were now riveted on the clergyman as though he were an accessory to the murder. "five thousand three hundred and four," he repeated, "by the same person, however respectable and beloved as a pastor he might be, was what few of us could have gone through unless we were endowed with as much strength of mind as power of endurance. i was going to ask you, sir, did the idea ever strike you when you talked of this unhappy being suddenly leaving your ministrations and turning sabbath-breaker, that after thirty-four years he might want a little change? would it not be reasonable to suppose that the man might think he had had enough of it?" "it might, my lord." "and would not that in your judgment, instead of showing that he was insane, prove that he was _a very sensible man_?" the vicar did not quite assent to this, and as he would not dissent from the learned judge, said nothing. "and," continued maule, "that he was perfectly sane, although he murdered his wife?" all this was very clever, not to say facetious, on the part of the learned judge; but as i had yet to address the jury, i was resolved to take the other view of the effect of the vicar's sermons, and i did so. i worked maule's quarry, i think, with some little effect: for after all his most strenuous exertions to secure a conviction, the jury believed, probably, that no man's mind could stand the ordeal; and, further, that any doubt they might have, after seeing the two children of the prisoner in court dressed in little black frocks, and sobbing bitterly while i was addressing them, would be given in the prisoner's favour, which it was. this incident in my life is not finished. on the same evening i was dining at the country house of a mr. hardcastle, and near me sat an old inhabitant of the village where the tragedy had been committed. "you made a touching speech, mr. hawkins," said the old inhabitant. "well," i answered, "it was the best thing i could do in the circumstances." "yes," he said; "but i don't think you would have painted the little home in such glowing colours if you had seen what i saw last week when i was driving past the cottage. no, no; i think you'd have toned down a bit." "what was it?" i asked. "why," said the old inhabitant, "the little children who sobbed so violently in court this morning, and to whom you made such pathetic reference, were playing on an ash-heap near their cottage; and they had a poor cat with a string round its neck, swinging backwards and forwards, and as they did so they sang,-- this is the way poor daddy will go! this is the way poor daddy will go!' such, mr. hawkins, was their excessive grief!" yes, but it got the verdict. chapter vi. an incident on the road to newmarket. my first visit to newmarket heath had one or two little incidents which may be interesting, although of no great importance. the newmarket of to-day is not quite the same newmarket that it was then: many things connected with it have changed, and, above all, its frequenters have changed; and if "things are not what they seem," they do not seem to me, at all events, to be what they were "in my day." sixty years is a long space of time to traverse, but i do so with a very vivid recollection of my old friend charley wright. it was on a bright october morning when we set out, and glad enough was i to leave the courts at westminster and the courts of the temple--glad enough to break loose from the thraldom of nothing to do and get away into the beautiful country. charley and i were always great friends; we had seen so much together, especially of what is called "the world," which i use in a different sense from that in which we were now to seek adventures. we had seen so much of its good and evil, its lights and shades, and had so many memories in common, that they formed the groundwork of a lasting friendship. he was the only son of an almost too indulgent father, who was the very best example of an old english gentleman of his day you could ever meet. he also had seen a good deal of life, and was not unfamiliar with any of its varied aspects. he was intellectual and genial, and dispensed his hospitality with the most winning courtesy. to me he was all kindness, and i have a grateful feeling of delight in being able in these few words to record my affectionate reverence for his memory. it was at his house in pall mall that i met john leech and percival leigh. but i digress as my mind goes back to these early dates, and unless i break away, charley and i will not reach newmarket in time for the first race. it happened that when we made this memorable visit i had an uncle living at the priory at royston, which was some five-and-twenty miles from newmarket, where the big handicap, i think the cesarewitch, was to be run the following day, or the next--i forget which. but an interesting episode interrupted our journey to the heath. to our surprise, and no little to our delight, there was to be an important meeting of the "fancy" to witness a great prize-fight between jack brassy and ben caunt. ben caunt was the greatest prize-fighter, both in stature and bulk, as well as in strength, i ever saw. he looked what he was--then or soon after--the champion of the world. brassy, too, was well made, and seemed every whit the man to meet caunt. the two, indeed, were equally well made in form and shape, and as smooth cut as marble statues when they stripped for action. the advertisements had announced that the contest was to come off at, "or as near thereto as circumstances permitted" (circumstances here meaning the police), the village of little bury, near saffron walden. at the little inn of the village some of the magnates of the ring were to assemble on the morning of the fight for an early breakfast, to which charley and i had the good fortune to be invited by jack brassy's second, peter crawley, another noted pugilist of his day. it was different weather from that we enjoyed in the early morning, for the rain was now pouring down in torrents, and we had a drive of no less than fifteen miles before us to the scene of action. vehicles were few, and horses fewer. nothing was to be had for love or money, as it seemed. but there was at last found one man who, if he had little love for the prize-ring, had much reverence for the golden coin that supported it. he was a quaker. he had an old gig, and, i think, a still older horse, both of which i hired for the journey--the quaker, of course, pretending that he had no idea of any meeting of the "fancy" whatever. nor do i suppose he would know what that term implied. if ever any man in the world did what young men are always told by good people to do--namely, to persevere--i am sure we did, charley and i, with the quaker's horse. whether he suspected the mission on which we were bent, or was considering the danger of such a scene to his morals, i could not ascertain, but never did any animal show a greater reluctance to go anywhere except to his quiet home. your happiness at these great gatherings depended entirely upon the distance or proximity of the police. if they were pretty near, the landlord of the inn would hesitate about serving you, and if he did, would charge a far higher price in consequence of the supposed increased risk. he would never encourage a breach of the peace in defiance of the county magistrates, who were the authority to renew his licence at brewster sessions. so much, then, if the officers of justice were _near_. if they happened to be absent--which, as i have said, occasionally occurred when a big thing was to come off--there was then a dominant feeling of social equality which you could never see manifested so strongly in any other place. a gentleman would think nothing of putting his fingers into your pockets and abstracting your money, and if you had the hardihood to resent the intrusion, would think less of putting his fist into your eyes. we were by no means certain, as i learned, that our fight would come off after all, for it appeared the magistrates had given strict and specific instructions to the police that no combat was to take place in the county of essex. consequently the parties whose duty it was to make preparations had fled from that respectable county and gone away towards six mile bottom, just in one of the corners of cambridgeshire, as if the intention was that the dons of the university should have a look in. constables slept more soundly in cambridgeshire than in essex. moreover, the essex magistrates would themselves have a moral right to witness the fight if it did not take place in their county. thus we set out for the rendezvous. charley soon discovered that our steed was not accustomed to the whip, for instead of urging him forward it produced the contrary effect. however, we got along by slow degrees, and when we came up with the crowd--oh! such a scene i had never witnessed in my life, nor could have conceived it possible anywhere on this earth or anywhere out of that abyss the full description of which you will find in "paradise lost." it was a procession of the blackguardism of all ages and of all countries under heaven. the sexes were apparently in equal numbers and in equal degrees of ugliness and ferocity. there were faces flat for want of noses, and mouths ghastly for want of teeth; faces scarred, bruised, battered into every shape but what might be called human. there were fighting-men of every species and variety--men whose profession it was to fight, and others whose brutal nature it was; there were women fighters, too, more deadly and dangerous than the men, because they added cruelty to their ferocity. innumerable women there were who had lost the very nature of womanhood, and whose mouths were the mere outlet of oaths and filthy language. their shrill clamours deafened our ears and subdued the deep voices of the men, whom they chaffed, reviled, shrieked at, yelled at, and swore at by way of _fun_. amidst this turbulent rabble rode several members of the peerage, and even ministerial supporters of the "noble art," exchanging with the low wretches i have mentioned a word or two of chaff or an occasional laugh at the grotesque wit and humour which are never absent from an english crowd. as we approached the famous scene, to which every one was looking with the most intense anticipation, the crowd grew almost frenzied with expectancy, and yet the utmost good-humour prevailed. in this spirit we arrived at bourne bridge, and thence to the place of encounter was no great distance. it was a little field behind a public-house. every face was now white with excitement, except the faces of the combatants. they were firm set as iron itself. trained to physical endurance, they were equally so in nerve and coolness of temperament, and could not have seemed more excited than if they were going to dinner instead of to one of the most terrible encounters i ever witnessed. to those who have never seen an exhibition of this kind it was quite amazing to observe with what rapidity the ropes were fixed and the ring formed; nor were the men less prompt. into the ring they stepped with their supporters, or seconds, and in almost an instant the principals had shaken hands, and were facing each other in what well might be deadly conflict. there were illustrious members of all classes assembled there, members probably of all professions, men who afterwards, as i know, became great in history, politics, law, literature, and religion; for it was a very great fight, and attracted all sorts and conditions from all places and positions. nothing since that fight, except tom sayers and the "benicia boy," has attracted so goodly and so fashionable an audience and so fierce an assembly of blackguards. but in the time of the latter battle the decadence of the ring was manifest, and was the outcome of what is doubtless an increasing civilization. at the time of which i am now speaking the prize ring was one of our fashionable sports, supported by the wealthy of all classes, and was supposed to contribute to the manliness of our race; consequently our distinguished warriors, as well as the members of our most gentle professions, loved a good old-fashioned english "set-to," and nobody, as a rule, was the worse for it, although my poor brother jack never recovered his half-crowns. we had been advised to take our cushions from the gig to sit upon, because the straw round the ring was soddened with the heavy rains, and i need not say we found it was a very wise precaution. the straw had been placed round the ring for the benefit of the _élite_, who occupied front seats. the fight now began, and, i must repeat, i never saw anything like it. both pugilists were of the heaviest fighting weights. caunt was a real giant, ugly as could be by the frequent batterings he had received in the face. his head was like a bull-dog's, and so was his courage, whilst his strength must have been that of a very samson; but if it was, it did not reside in his hair, for that was short and close as a mouse's back. at first i thought brassy had the best of it; he was more active, being less ponderous, and landed some very ugly ones, cutting right into the flesh, although caunt did not appear to mind it in the least. brassy, however, did not follow up his advantage as i thought he ought to have done, and in my opinion dreaded the enormous power and force of his opponent in the event of his "getting home." with the usual fluctuations of a great battle, the contest went on until nearly a _hundred rounds_ were fought, lasting as many minutes, but no decisive effect was as yet observable. after this, however, brassy could not come up to time. the event, therefore, was declared in caunt's favour, and his opponent was carried off the field on a hurdle into the public-house, where i afterwards saw him in bed. thus terminated the great fight of the day, but not thus my day's adventures. the sport was all that the most enthusiastic supporters of the ring could desire. it no doubt had its barbarous aspects, regarded from a humanitarian point of view, but it was not so demoralizing as the spectacle of some poor creature risking his neck in a performance for which the spectator pays his sixpence, and the whole excitement consists in the knowledge that the actor may be dashed to pieces before his eyes. it was time now to leave the scene, so charley and i went to look for our gig (evidence of gentility from the time of thurtell and hunt's trial for the murder of mr. weare). alas! our respectability was gone--i mean the gig. in vindication of the wisdom and foresight of charley and myself, i should like to mention that we had entrusted that valuable evidence of our status to the keeping of a worthy stranger dressed in an old red jacket and a pair of corduroy trousers fastened with a wisp of hay below the knees. when we arrived at the spot where he promised to wait our coming, he was gone, the horse and gig too; nor could any inquiries ascertain their whereabouts. whether this incident was a judgment on the quaker, as wright suggested, or one of the inevitable incidents attendant on a prize-fight, i am not in a position to say; but we thought it served the quaker right for letting us a horse that would not go until the gentleman in the red jacket relieved us of any further trouble on that account. mistakes are so common amongst thieves that one can never tell how the horse got away; but if i were put on my oath, knowing the proclivities of the animal, i should say that he was backed out of the field. we were now, as it seemed, the most deplorable objects in creation: without friends and without a gig, wet through, shelterless, amidst a crowd of drunken, loathsome outcasts of society, with only one solitary comfort between us--a pipe, which charley enjoyed and i loathed. drink is always quarrelsome or affectionate, generally the one first and the other after. when the tears dry, oaths begin, and we soon found that the quarrelsome stage of the company had been reached. amidst all this excitement we had not forgotten that this little matter of the prize-fight was but an incident on our journey to newmarket. we knew full well that our present appearance would have found no recognition in the mall. but we cared nothing for the mall, as we were not known by the fashion in the racing world; and as for the others, we should like to avoid them in any world. you will wonder in these circumstances what we did. we waited where we were through the whole of that wet afternoon, and then, on a couple of hacks--how we obtained them i don't know; i never asked charley, and nothing of any importance turns upon them--we arrived at our comfortable royston quarters about eight o'clock, tired to death. we were received with a hearty welcome by my uncle, who was much entertained with our day's adventures. he liked my description of the fight, especially when i told him how brassy "drew caunt's claret," and showed such other knowledge of the scientific practice that no one could possibly have learnt had he not read up carefully _bell's life_ for the current week. i am sure my uncle thought i was one of the best of nephews, and i considered him in reality "my only uncle." long, thought i, may he prove to be; and yet i never borrowed a penny from him in my life. on the next day, fully equipped, and with all that was necessary for our distinguished position, we set out for newmarket heath, even now the glory of the racing world, not forgetting goodwood, which is more or less a private business and fashionable picnic. i shall not attempt to describe newmarket. no one can describe, the indescribable. i will only say it was not the newmarket which our later generation knows. it was then in its crude state of original simplicity. there were no stands save "the duke's," at the top of the town, and one other, somewhat smaller and nearer to the present grand stand. those who could afford to do so rode on horseback about the heath; those who could not walked if they felt disposed, or sat down on the turf--the best enjoyment of all if you are tired. we did all three: we rode, walked, and sat down. at last, after a thoroughly enjoyable outing, such as the bar knows nothing of in these respectable times, we returned to our business quarters in the temple. chapter vii. an episode at hertford quarter sessions. hearsay is not, as a rule, evidence in a court of justice. there are one or two exceptions which i need not mention. if you want, therefore, to say what smith said, you cannot say it, but must call smith himself, and probably he will swear he never said anything of the sort. the marquis of salisbury, in the early days that i speak of, was a kind-hearted chairman, and would never allow the quibble of the lawyer to stand in the way of justice to the prisoner. in those days at sessions they were not so nice in the observances of mere forms as they are now, and you could sometimes get in something that was not exactly evidence, strictly speaking, in favour of a prisoner by a side-wind, as it were, although it was not the correct thing to do. it happened that i was instructed to defend a man who had been committed to hertford quarter sessions on a charge of felony. the committing magistrates having refused to let the man out on bail, an application was made at judges' chambers before mr. baron martin to reverse that decision, which he did. "not a rag of evidence," said the attorney's clerk when he delivered the little brief--"not a shadder of evidence, mr. 'awkins. it's a walk-over, sir." i knew that meant a nominal fee, but wondered how many more similes he was going to deliver instead of the money. but to the honour of the solicitor, i am bound to say that point was soon cleared up, and the practice of magistrates, supposed to be in their right minds, committing people for trial with no "shadder" of evidence against them, it now became my duty to inquire into. i asked how he knew there was no evidence, and whether the man bore a respectable character. "oh, i was up before the baron," he answered. ("yes," i thought, "but you must wake very early if you are up too soon for baron martin.") "and the baron said, as to grantin' bail, 'certainly he should; the magistrates had no business to commit him for trial, for there was not a rag of a case against the man.' so you see, sir, it's a easy case, mr. 'awkins; and as the man's a poor man, we can't mark much of a fee." the usual complaint with quarter sessions solicitors. such were my instructions. i was young in practice at that time, and took a great deal more in--i mean in the way of credulity--than i did in after life. nor was i very learned in the ways of solicitors' clerks. i knew that hearsay evidence, even in the case of a judge's observation, was inadmissible, and therefore what the baron said could not strictly be given; but i did not know how far you might go in the country, nor what the marquis's opinion might be of the baron. i therefore mentioned it to rodwell, who, of course, was instructed for the prosecution; he was in everything on one side or the other--never, i believe, on both. this stickler for etiquette was absolutely shocked; he held up his hands, began a declamation on the rules of evidence, and uttered so many pharisaical platitudes that i only escaped annihilation by a hair's-breadth. he was always furious on etiquette. much annoyed at his bumptious manner, i was resolved now, come what would, to pay him off. i wanted to show him he was not everybody, even at hertford sessions. so when the case came on and the policeman was in the box, i rose to cross-examine him, which i did very quietly. "now, policeman, i am going to ask you a question; but pray don't answer it till you are told to do so, because my learned friend may object to it." rodwell sprang to his feet and objected at once. "what is the question?" asked the marquis. "we must hear what the question is before i can rule as to your objection, mr. rodwell." this was a good one for mr. rodwell, and made him colour up to his eyebrows, especially as i looked at him and smiled. "the question, my lord," said i, "is a very simple one: did not mr. baron martin say, when applied to for bail, that there was not a rag of a case against the prisoner?" "this is monstrous!" said the learned stickler for forms and ceremonies--"monstrous! never heard of such a thing!" it might have been monstrous, but it gave me an excellent grievance with the jury, even if the marquis did not see his way to allow the question; and a grievance is worth something, if you have no defence. the marquis paid great attention to the case, especially after that observation of the baron's. although he regretted that it could not be got in as evidence, he was good enough to say i should get the benefit of it with the jury. all this time there was a continuous growl from my learned friend of "monstrous! monstrous!"--so much so that for days after that word kept ringing in my ears, as monotonously as a muffin bell on a sunday afternoon. but i believe he was more irritated by my subsequent conduct, for i played round the question like one longing for forbidden fruit, and emphasized the objection of my learned friend now and again: all very wrong, i know now, but in the heyday of youthful ardour how many faults we commit!" "just tell me," i said to the policeman, "did the learned judge--i mean mr. baron martin--seem to know what he was about when he let this man out on bail?" "o yes, sir," said the witness, "he knowed what he was about, right enough," stroking his chin. "you may rely on that," said the marquis. "you may take that for granted, mr. hawkins." "i thought so, my lord; there is not a judge on the bench who can see through a case quicker than the baron." the grumbling still continued. "now, then, don't answer this." "you have already ruled, my lord," said rodwell. "this is another one," said i; "but if it's regular to keep objecting before the prisoner's counsel has a chance of putting his question, i sit down, my lord. i shall be allowed, probably, to address the jury--that is, if mr. rodwell does not object." the noble marquis, on seeing my distress, said,-- "mr. hawkins, the question needs no answer from the policeman; you will get the benefit of it for what it is worth. the jury will draw their own conclusions from mr. rodwell's objections." as they did upon the whole case, for they acquitted, much to mr. rodwell's annoyance. "now," said the marquis, "let the officer stand back. i want to ask what the baron really did say when he let this man out on bail." "my lord," answered the witness, "his lordship said as how he looked upon the whole lot as a _gang of thieves_." "you've got it now," said rodwell. "and so have you," said i. "you should not have objected, and then you would have got the answer he has just given." chapter viii. a dangerous situation--a forgotten prisoner. i had been to paris in the summer of -- for a little holiday, and was returning in the evening after some races had taken place near that city. i had not attended them, and was, in fact, not aware that they were being held; but i soon discovered the fact from finding myself in the midst of the motley crowds which always throng railway stations on such occasions, only on this particular day they were a little worse than usual. the race meeting had brought together the roughs of all nations, and especially from england. as it seemed to me, my fellow-countrymen always took the lead in this kind of competition. i was endeavouring to get to the booking-office amongst the rest of the crowd, and there was far more pushing and struggling than was at all necessary for that purpose. presently a burly ruffian, with a low east end face of the slum pattern and complexion, rolled out a volley of oaths at me. he asked where the ---- i was pushing and what game i was up to, as though i were a professional pickpocket like himself. he had the advantage of me in being surrounded by a gang of the most loathsome blackguards you could imagine, while i was without a friend. i spoke, therefore, very civilly, and said the crowd was pushing behind and forcing me forward. the brute was annoyed at my coolness, and irritated all the more. hitherto his language had not been strong enough to frighten me, so he improved its strength by some tremendous epithets, considerably above proof. i think he must have enjoyed the exclusive copyright, for i never knew his superlatives imitated. he finished the harangue by saying that he would knock my head off if i said another word. to this i replied, with a look stronger than all his language, "no, you won't." my look must have been strong, because the countenances of the bystanders were subdued. "why won't i, muster?" he asked. "for two reasons," i said: "first, because you won't try; and secondly, because you could not if you did." he was somewhat tamed, and then i lifted my hat, so that he could see my close-cropped hair, which was as short as his own, only not for the same reason. "you don't seem to know who i am," i added, hoping he would now take me for a member of the prize-ring. but my appearance did not frighten him. i had nothing but my short-cropped hair to rely on; so in self-defence i had to devise another stratagem. to frighten him one must look the ruffian in the face, or look the ruffian that he was. he continued to abuse me as we passed on our way to the booking-office window, and i have no doubt he and his gang were determined to rob me. one thing was common between us--we had no regard for one another. i now assumed as bold a manner as i could and a rough east end accent. "look-ee 'ere," said i: "i know you don't keer for me no more 'an i keers for you. i ain't afraid o' no man, and i'll tell you what it is: it's your ignorance of who i am that makes you bold. i know you ain't a bad un with the maulers. let's have no more nonsense about it here. i'll fight you on monday week, say, for a hundred a side in the butts, and we'll post the money at peter crawley's next saturday. what d'ye say to that?" peter crawley, whom i have already mentioned as inviting me to breakfast, was like a thunderclap to him. i must be somebody if i knew peter crawley, and now he doubtless bethought him of my short hair. i must confess if the fellow had taken me at my word i should have been in as great a funk as he was, but he did not. my challenge was declined. * * * * * a curious incident happened once in the rural district of saffron walden. it is a borough no doubt, but it always seemed to me to be too small for any grown-up thing, and its name sounded more like a little flower-bed than anything else. on the occasion of which i speak there was great excitement in the place because they had got a prisoner--an event which baffled the experience of the oldest inhabitant. the recorder was an elderly barrister, full of pomp and dignity; and, like many of his brother recorders, had very seldom a prisoner to try. you may therefore imagine with what stupendous importance he was invested when he found that the rural magistrates had committed a little boy for trial for stealing a _ball of twine_. think of the grand jury filing in to be "charged" by this judicial dignitary. imagine his charge, his well-chosen sentences in anticipation of the one to come at the end of the sitting. think of his eloquent disquisition on the law of larceny! it was all there! after the usual proclamation against vice and immorality had been read, and after the grand jury had duly found a true bill, the next thing was to find the prisoner and bring him up for trial. we may not be sentimental, or i might have cried, "god save the child!" as the usher said, "god save the queen!" but "suffer little children to come unto me" would not have applied to our jails in those miserable and inhuman times. mercy and sympathy were out of the question when you had law and order to maintain, as well as all the functionaries who had to contribute to their preservation. "put up the prisoner!" said the recorder in solemn and commanding tones. down into the jaws of the cavern below the dock descended the jailer of six feet two--the only big thing about the place. he was a resolute-looking man in full uniform, and i can almost feel the breathless silence that pervaded the court during his absence. time passed and no one appeared. when a sufficient interval had elapsed for the stalwart jailer to have eaten his prisoner, had he been so minded, the recorder, looking up from behind the _times_, which he appeared to be reading, asked in a very stern voice why the prisoner was not "put up." they did not put up the boy, but the jailer, with a blood-forsaken face, put himself up through the hole, like a policeman coming through a trap-door in a pantomime. "i beg your honour's pardon, my lord, but they have forgot to bring him." "forgot to bring him! what do you mean? where is he?" "they've left him at chelmsford, your honour." it seemed there was no jail at saffron walden, because, to the honour of the borough be it said, they had no one to put into it; and this small child had been committed for safe custody to chelmsford to wait his trial at sessions, and had been there so long that he was actually forgotten when the day of trial came. i never heard anything more of him; but hope his small offence was forgotten as well as himself. chapter ix. the only "racer" i ever owned--sam linton, the dog-finder. i have been often asked whether i ever owned a racer. in point of fact, i never did, although i went as near to that honour as any man who never arrived at it--a racer, too, who afterwards carried its owner's colours triumphantly past the winning-post. the reader may have been shocked at the story i told of those poor ill-brought-up children whose mother was murdered, from the natural feeling that if pure innocence is not to be found in childhood, where are we to seek it? i will indicate the spot in three words--_on the turf_. true, you will find fraud, cunning, knavery, and robbery, but you will find also the most unsophisticated innocence. i went as a spectator, a lover of sport, and a lover of horses; and took more delight in it than i ever could in any haunt of fashionable idleness. i amused myself by watching the proceedings of the betting-ring, where there is a good deal more honesty than in many places dignified by the name of "marts." but if there was no innocence on the turf, rogues could not live; they are not cannibals--not, at all events, while they can obtain tenderer food. and are there not commercial circles also which could not exist without their equally innocent supporters? experience may be a dear school, but its lessons are never forgotten. a very little should go a long way, and the wisest make it go farthest. if any one wants a picture of innocence on the turf, let me give one of my own drawing, taken from nature. all my life i have loved animals, especially horses and dogs; and all field sports, especially hunting and racing. but i went on the turf with as much simplicity as a girl possesses at her first ball, knowing nothing about public form or the way to calculate odds, to hedge, or do anything but wonder at the number of fools there were in the world. i did not know "a thing or two," like the knowing ones who lose all they possess. who could believe that men go about philanthropically to inform the innocent how to "put their money on," while they carefully avoid putting on their own? tipsters, in short, were no part of my racing creed. i was not so ignorant as that. i believed in a good horse quite as much as lord rosebery does, and much more than i believed in a good rider. but there were even then honest jockeys, as well as unimpeachable owners. all you can say is, honesty is honesty everywhere, and you will find a good deal of it on the turf, if you know where to look for it; and its value is in proportion to its quantity. the moment you depart a hair's-breadth from its immaculate principle there is no medium state between that and roguery. however, be that as it may, i was once the owner of a pedigree thoroughbred called dreadnought, which was presented to me when a colt. dreadnought's dam collingwood was by muley moloch out of barbelle. dreadnought was good for nothing as a racer, and had broken down in training. as a castaway he was offered to me, and i gladly accepted the present. as he was too young to work, i sent him down to ---- park, to be kept till he was fit for use. he was there for a considerable time, and was then sent back in a neglected and miserable condition. i rode him for some time, until one day he took me to richmond park, and on going up the hill fell and cut both his knees to pieces and mine as well. this was a sad mishap, and, of course, i could have no further confidence in poor dreadnought, fond of him as i was; so he was placed under the care of a skilful veterinary surgeon, who gave him every attention. his bill was by no means heavy, and he brought him quite round again. in the course of time he acquired a respectable appearance, although his broken knees, to say nothing of his "past," prevented his becoming valuable so far as i was concerned. certainly i had no expectation of his ever going on to the turf. how could one believe that any owner would think of entering him for a race? one morning my groom came to me and said, "i think, sir, i can find a purchaser for dreadnought, if you have no objection to selling him; he's a gentleman, sir, who would take great care of him and give him a good home." "sell him!" said i. "well, i should not object if he found a good master. i cannot ride him, and he is practically useless. what price does he seem inclined to offer?" "well, he ain't made any offer, sir; but he seems a good deal took with him and to like the look of him. perhaps, sir, he might come and see you. i told him that i thought a matter o' _fifteen pun_ might buy un. i dunnow whether i did right, sir, but i told un you would never take a farden less. i stuck to that." "no," said i, "certainly not, when the vet.'s bill was twelve pounds ten--not a farthing less, james." when the proposed purchaser came, he said, "it's a poor horse--a very poor horse; he wants a lot of looking after, and i shouldn't think of buying him except for the sake of seeing what i could do with him, for i am not fond of lumber, mr. hawkins--i don't care for lumber." it was straightforward, but i did not at the time see his depth of feeling. he was evidently intending to buy him out of compassion, as he had some knowledge of his ancestors. but i stuck to my fifteen pounds hard and fast, and at last he said, "well, mr. hawkins, i'll give you all you ask, if so be you'll throw in the saddle and bridle!" i was tired of the negotiations, and yielded; so away went poor dreadnought with his saddle and bridle, never for me to look on again. i was sorry to part with him, and the more so because his life had been unfortunate. but i was deceived in him as well as in his new master. from me he had concealed his merits, only to reveal them, as is often the case with latent genius, when some accidental opportunity offered. at that time bromley in kent was a central attraction for a great many second-class patrons of the sporting world. i know little about the events that were negotiated at bromley and other small places of the kind, but there was, as i have been informed, a good deal of blackguardism and pickpocketing on its course and in its little primitive streets--lucky if you came out of them with only one black eye. they would steal the teeth out of your mouth if you did not keep it shut and your eyes open. however, bromley races came on some time after the sale of my dreadnought.... the next morning my groom came with a look of astonishment that seemed to have kept him awake all night, and said,-- "you'll be surprised to hear, sir, that our 'oss has won a fifty-pound prize at bromley, and a pot of money besides in bets for his owner." "won a prize!" said i. "was it by standing on his head?" "won a _race_, sir." "then it must have been a walk-over." "oh no, sir; he beat the cracks, beat the favourites, and took in all the knowing ones. i always said there was something about that there 'oss, sir, that i didn't understand and nobody couldn't understand, sir." i was absolutely dumbfounded, knowing very little about "favourites" or "cracks." my groom i knew i could rely upon, for he always seemed to be the very soul of honour. i thought at first he might have been misled in some bromley taproom, but afterwards found that it was all true--he had heard it from the owner himself, in whom the public seemed to place confidence, for they laid very long odds against dreadnought. the animal was famous, but not in that name; he had, like most honest persons, an alias. how he achieved his victory is uncertain; one thing, however, is certain--it must have been a startling surprise to dreadnought to find himself in a race at all, and still more astonishing to find himself in front. "how many ran?" i asked. "three, sir; two of 'em crack horses." at this time i took little interest in pedigrees, and knew nothing of the "cracks," so the names of those celebrated animals which dreadnought had beaten are forgotten. one of them, it appeared, had been heavily backed at to , but dreadnought did not seem to care for that; he ran, not on his public form, but on his merits. my eyes were opened at last, and the whole mystery was solved when james told me that _all three horses belonged to the same owner_! from that time to this i never heard what became of dreadnought, and never saw the man who bought him, even in the dock. it is strange, however, that animals so true and faithful as dogs and horses should be instruments so perverted as to make men liars and rogues; while for intelligence many of them could give most of us pounds and pass us easily at the winning-post. speaking of dogs reminds me of dog-stealers and _their_ ways, of which some years ago i had a curious experience. i have told the story before, but it has become altered, and the true one has never been heard since. indeed, no story is told correctly when its copyright is infringed. there was a man at the time referred to known as old sam linton, the most extraordinary dog-fancier who ever lived, and the most curious thing about him was that he always fancied other people's dogs to his own. he was a remarkable dog-_finder_, too. in these days of dogs' homes the services of such a man as linton are not so much in request; but he was a home in himself, and did a great deal of good in his way by restoring lost dogs to their owners; so that it became almost a common question in those days, when a lady lost her pet, to ask if she had made any inquiry of old sam linton. he was better than the wise woman who indicated in some mysterious jargon where the stolen watch might or might not be found in the distant future, for old sam _brought_ you the very dog on a _specified day_! the wise woman never knew where the lost property was; old sam did. i dare say he was a great blackguard, but as he has long joined the majority, it is of no consequence. there was one thing i admired about sam: there was a thorough absence in him of all hypocrisy and cant. he professed no religion whatever, but acted upon the principle that a bargain was a bargain, and should be carried out as between man and man. that was his idea, and as i found him true to it, i respected him accordingly, and mention his name as one of the few genuinely honest men i have met. the way i made his acquaintance was singular. i was dining with my brother benchers at the middle temple hall, when a message was brought that a gentleman would like to see me "partickler" after dinner, if i could give him a few minutes. when i came out of the hall, there was a man looking very like a burglar. his dress, or what you should call his "get-up," is worth a momentary glance. he had a cat-skin cap in his hand about as large as a frying-pan, and nearly of the same colour--this he kept turning round and round first with one hand, then with both--a pea-jacket with large pearl buttons, corduroy breeches, a kind of moleskin waistcoat, and blucher shoes. he impressed one in a moment as being fond of drink. on one or two occasions i found this quality of great service to me in matters relating to the discovery of lost dogs. drink, no doubt, has its advantages to those who do not drink. "muster orkins, sir," said he, "beggin' your pardon, sir, but might i have a word with you, muster orkins, if it ain't a great intrusion, sir?" i saw my man at once, and showed him that i understood business. "you are sam linton?" it took his breath away. he hadn't much, but poor old sam did not like to part with it. in a very husky voice, that never seemed to get outside his mouth, he said,-- "_yus, sur_; that's it, mr. orkins." then he breathed, "yer 'onner, wot i means to say is this--" "what do you want, linton? never mind what you mean to say; i know you'll never say it." "well, mr. orkins, sir, ye see it is as this: you've lost a little dorg. well, you'll say, 'how do you know that 'ere, sam?' 'well, sir,' i says, ''ow don't i know it? ain't you bin an' offered _fourteen pun_ for that there leetle dorg? why, it's knowed dreckly all round mile end--the werry 'ome of lorst dorgs--and that there dorg, find him when you wool, why, he ain't worth more'n _fourteen bob_, sir.' now, 'ow d'ye 'count for that, sir?" "you've seen him, then?" "not i," says sam, unmoved even by a twitch; "but i knows a party as 'as, and it ain't likely, mr. orkins, as you'll get 'im by orferin' a price like that, for why? why, it stands to reason--don't it, mr. orkins?--it ain't the _dorg_ you're payin' for, but _your feelins_ as these 'ere wagabonds is _tradin' on, mr. orkins_; that's where it is. o sir, it's abominable, as i tells 'em, keepin' a gennelman's dorg." i was perfectly thunderstruck with the man's philosophy and good feeling. "go on, mr. linton." "well, mr. orkins, they knows--damn 'em!--as your feelins ull make you orfer more and more, for who knows that there dorg might belong _to a lidy_, and then _her_ feelins has to be took into consideration. i'll tell 'ee now, mr. orkins, how this class of wagabond works, for wagabonds i must allow they be. well, they meets, let's say, at a public, and one says to another, 'i say, bill,' he says, 'that there dawg as you found 'longs to lawyer orkins; he's bloomin' fond o' dawgs, is lawyer orkins, so they say, and he can pay for it.' 'right you are,' says bill, 'and a d---- lawyer _shall_ pay for it. he makes us pay when we wants him, and now we got him we'll make him pay.' so you see, mr. orkins, where it is, and whereas the way to do it is to say to these fellers--i'll just suppose, sir, i'm you and you're me, sir; no offence, i hope--'well, i wants the dawg back.' well, they says; leastways, i ses, ses i,-- "'lawyer orkins, you lost a dawg, 'ave yer?' "'yes,' ses you, 'i have,' like a gennelman--excuse my imitation, sir--' and i don't _keer a damn for the whelp_!' that's wot you orter say. 'he's only a bloomin' mongrel.'" "very good; what am i to say next, mr. linton?" "'don't yer?' says the tother feller; 'then what the h---- are yer looken arter him for?' "'well,' you ses, mr. orkins, 'you can go to h----. i don't keer for the dawg; he ain't my fancy.'" "a proper place for the whole lot of you, sam." "but, excuse me, mr. orkins, sir, that's for future occasions. this 'ere present one, in orferin' fourteen pun, you've let the cat out o' the bag, and what i could ha' done had you consulted me sooner i can't do now; i could ha' got him for a _fi'-pun note_ at one time, but they've worked on your feelins, and, mark my words, they'll want _twenty pun_ as the price o' that there dawg, as sure as my name's sam linton. that's all i got to say, mr. orkins, and i thought i'd come and warn yer like a man--he's got into bad hands, that there dawg." "i am much obliged, mr. linton; you seem to be a straightforward-dealing man." "well, sir, i tries to act upright and downstraight; and, as i ses, if a man only does that he ain't got nothin' to fear, 'as he, muster orkins?" "when can i have him, sam?" "well, sir, you can have him--let me see--monday was a week, when you lost him; next monday'll be another week, when i found him; that'll be a fortnit. suppose we ses next tooesday week?" "suppose we say to-morrow." "oh!" said sam, "then i thinks you'll be sucked in! the chances are, mr. orkins, you won't see him at all. why, sir, you don't know how them chaps carries on their business. would you believe it, mr. orkins, a gennelman comes to me, and he ses, 'sam,' he ses, 'i want to find a little pet dawg as belonged to a lidy'--which was his wife, in course--and he ses the lidy was nearly out of her mind. 'well,' i ses, 'sir, to be 'onest with you, don't you mention that there fact to anybody but me'--because when a lidy goes out of her mind over a lorst dawg up goes the price, and you can't calculate bank-rate, as they ses. the price'll go up fablous, mr. orkins; there's nothin' rules the market like that there. well, at last i agrees to do my best for the gent, and he says, just as you might say, mr. orkins, just now, 'when can she have him?' well, i told him the time; but what a innercent question, mr. orkins! 'why not before?' says he, with a kind of a angry voice, like yours just now, sir. 'why, sir,' i ses, 'these people as finds dawgs 'ave their feelins as well as losers 'as theirs, and sometimes when they can't find the owner, they sells the animal.' well, they sold this gennelman's animal to a major, and the reason why he couldn't be had for a little while was that the major, being fond on him, and 'avin' paid a good price for the dawg, it would ha' been cruel if he did not let him have the pleasure of him like for a few days--or a week." sam and i parted the best of friends, and, i need not say, on the best of terms i could get. i knew him for many years after this incident, and say to his credit that, although he was sometimes hard with customers, he acted, from all one ever heard, strictly in accordance with the bargain he made, whatever it might be; and what is more singular than all, i never heard of old sam linton getting into trouble. chapter x. why i gave over card-playing. like most men who are not saints, i had the natural instinct for gambling, without any passion for it; but soon found the necessity for suppressing my inclination for cards, lest it should interfere with my legitimate profession. it was necessary to abandon the indulgence, or abandon myself to its temptations. i owe my determination never to play again at cards to the bad luck which befell me on a particular occasion at ascot on the cup day of the year --. i was at that time struggling to make my way in my profession, and carefully storing up my little savings for the proverbial rainy day. having been previously to the epsom summer races, and had such extraordinary good luck, nothing but a severe reverse would have induced me to take the step i did. good luck is fascinating, and invariably leads us on, with bad luck sometimes close behind. i went to epsom with my dear old friend charley wright, and we soon set to work in one of the booths to make something towards our fortunes at _rouge et noir_. the booth was kept by a man who seemed--to me, at all events--to be the soul of honour. i had no reason to speak otherwise than well of him, for i staked a half-crown on the black, and won two half-crowns every time, or nearly every time. i thought it a most excellent game, and with less of the element of chance or skill in it than any game i ever played. my pockets were getting stuffed with half-crowns, so that they bulged, and caused me to wonder if i should be allowed to leave the racecourse alive, for there were many thieves who visited the downs in those days. but my friend charley was with me, and i knew he would be a pretty trustworthy fellow in a row. this, however, was but a momentary thought, for i was too much engrossed in the game and in my good luck to dwell on possibilities. nor did i interest myself in charley's proceedings, but took it for granted that a game so propitious to me was no less so to him. he was playing with several others; who or what they were was of no moment to me. i pursued my game quietly, and picked up my half-crowns with great gladness and with no concern for those who had lost them. presently, however, my attention was momentarily diverted by hearing charley let off a most uncontrollable "d--n!" "what's the matter, charley?" i asked, without lifting my head. "matter!" says charley; "rooked--that's all!" "rooked! that's very extraordinary. i'm winning like anything. look here!" and i pointed to my pockets, which were almost bursting. "yes," said he, "i see how it is: you've been winning on twos to one, and i've been losing on threes." "black's the winning colour to-day, charley--_noir_; you should have backed _noir_. besides, long odds are much too risky. i am quite content with two to one." here there was a general break-up of the party, because charley being out of it as well as several others, it left only one, and, of course, the keeper of the booth was not so foolish, however honourable, to pay me two half-crowns and win only one. so there it ended. that night i made this game a study, and the sensible conclusion came to me that if you would take advantage of the table you should play for the lower stakes, because you have a better chance of winning than those who play high. at least, that was the result of my policy; for while those who played high were ruined, my pockets were filled, and, by that cautious mode of playing, i was so lucky that, had there been enough at threes to one, i could have kept on making money as long as they had any to lose. i changed my half-crowns with the booth-keeper for gold, and reached my chambers safely with the spoil. and how pleasant it was to count it! it has occurred to me since that the keeper of the booth had carefully noted my proceedings (such was my innocence), and that he made his calculations for a future occasion. one thing he was quite sure of--namely, that he would see me again on the first opportunity there was of winning more half-crowns. it is possible that a succession of runs of luck might have put an end to my professional career; it is certain that the opposite result put an end to my card-playing aspirations. in about a fortnight, all eager for a renewal of my epsom experience, i went down to the ascot meeting, taking with me not only all my previous winnings, but my store of savings for the rainy day, and was determined to pursue the same moderate system of cautious play. there was the same booth, the same little flag fluttering on the top, and the same obliging proprietor. he recognized me at once, and looked as if he was quite sure i would be there--as if, in fact, he had been waiting for me. after a pleasant greeting and a few friendly words, i thought it a little odd that a man should be so glad to meet one who had come to fill his pockets at the booth-keeper's expense--at least, i thought this afterwards, not at the time. he looked genuinely pleased, and down i sat once more, quite sure that two to one would beat three. the proprietor kept his eye on my play in a very thoughtful manner, nor was it surprising that he knew his game as well as i; in fact, it turned out that he knew it better. to this day i am unable to explain how he manoeuvred it, how he adjusted his tactics to counteract mine; but that something happened more than mere luck would account for was certain, for, as often as the half-crown went on black, red was the lucky colour. but i persevered on black because it had been my friend at epsom, and down went the half-crowns, to be swept up by the keeper of the booth. i cannot even now explain how it was done. intending to make a good day's work and gather a rich harvest, i took with me every shilling i had in the world--not only my previous winnings, but my hard-earned savings at the bar. i began to lose, but went on playing, in the vain hope--the worst hope of the gambler--of retrieving what i had lost and recovering my former luck. but it was not to be; the table was against me. i forsook my loyalty to black and laid on red. alas! red was no better friend. i lost again, and knew now that all my epsom winnings had found their way once more into the keeper's pocket. a fortnight's loan was all i had of them. it was a pity they had not been given to some charity. but i kept on bravely enough, and did not despair or leave off while i had a half-crown left. that half-crown, however, was soon raked up with the rest into the keeper's bag. i was bankrupt, with nothing in my pocket but twopence and a return ticket from paddington. hopeless and helpless, i had learnt a lesson--a lesson you can only learn in the school of experience. i little thought then that the only certain winner at the gaming-table is _the table itself_, and made up my mind as i walked alone and disappointed through windsor park, on my way to the station, that i would never touch a card again--and i never did. for the first time since setting out in the morning i felt hungry, and bought a pennyworth of apples at a little stall kept by an old woman, and a bottle of ginger-beer. such was my frugal meal; and thus sustained i tramped on, my return ticket being my only possession in the world. i reached paddington with a sorry heart, and walked to the temple, my good resolution my only comfort; but it was all-sufficient for the occasion and for all time to come. chapter xi. "codd's puzzle." having somewhat succeeded in my practice at quarter sessions, i enlarged my field of adventure by attending the old bailey, hoping, of course, to obtain some briefs at that court; and although i abandoned the practice as a rule, i was, in after-life, on many occasions retained to appear in cases which are still fresh in my memory. i was with edwin james, who was counsel for mr. bates, one of the partners of strahan and sir john dean paul, bankers of the strand, and who were sentenced to fourteen years' transportation for fraudulently misappropriating securities of their customers. i was counsel for a young clerk to leopold redpath, the notorious man who was transported for extensive forgeries upon the great northern railway. the clerk was justly acquitted by the jury. my recollection of this period brings back many curious defences, which illustrate the school of advocacy in which i studied. whether they contributed to my future success, i do not know, but that they afforded amusement is proved by my remembering them at all. hertford and st. albans were my chief places, my earliest attachments, and are amongst my pleasantest memories. it seems childish to think of them as scenes of my struggles, for when i come to look back i had no struggles at all. i was merely practising like a cricketer at the nets; there was nothing to struggle for except a verdict when it would not come without some effort. but dear old codd was the man to struggle. he struggled and wriggled; tie him up as tightly as you could, you saw him fighting to get free, as he did in the following great duck case. he was a very amiable old barrister, a fast talker--so fast that he never stayed to pronounce his words--and of an ingenuity that ought to have been applied to some better purpose, such as the making of steam-engines or writing novels, rather than defending thieves. he reminded me on this occasion of the man in the circus who rode several horses at a time. in the case i allude to, he set up no less than _seven defences_ to account for the unhappy duck's finding its way into his client's pocket, and the charm of them all was their variety. inconsistency was not the word to apply reproachfully. inconsistency was codd's merit. he was like a conjurer who asks you to name a card, and as surely as you do so you draw it from the pack. this particular duck case was known long after as "codd's puzzle." "first," says codd, "my client bought the duck and paid for it." he was not the man to be afraid of being asked where. "second," says codd, "my client found it; thirdly, it had been given to him; fourthly, it flew into his garden; fifthly, he was asleep, and some one put it into his pocket." and so the untiring and ingenious codd proceeded making his case unnaturally good. but the strange thing was that, instead of sweeping him away with a touch of ridicule, the young advocate argued the several defences one after the other with great dialectical skill, so that the jury became puzzled; and if the defence had not been so extraordinarily good, there would have been an acquittal forthwith. there had been such a bewildering torrent of arguments that presently codd's head began to swim, and he shrugged his shoulders, meaning thereby that it was the most puzzling case _he_ had ever had anything to do with. at last it became a question whether, amidst these conflicting accounts, there ever was any duck at all. codd had not thought of that till some junior suggested it, and then he was asked by the marquis of salisbury, our chairman, whether there was any particular line of defence he wished to suggest. "no," says codd, "not in particular; my client wished to make a clean breast of it, and put them all before the jury; and i should be much obliged if those gentlemen will adopt any one of them."[a] the jury acquitted the prisoner, not because they chose any particular defence, but because they did not know which to choose, and so gave the prisoner the benefit of the doubt. the client was happy, and codd famous. [footnote a: sixty years after this event, in the reply in the great tichborne case, mr. hawkins, q.c., quoted this very defence as an illustration of the absurdity of the suggestion that one of several _ospreys_ picked up sir roger tichborne--as will hereafter appear.] chapter xii. graham, the polite judge. just before my time the punishment of death was inflicted for almost every offence of stealing which would now be thought sufficiently dealt with by a sentence of a week's imprisonment. the struggle to turn king's evidence was great, and it was almost a competitive examination to ascertain who knew most about the crime; and he, being generally the worst of the gang, was accepted accordingly. i remember when i was a child three men, named respectively marshall, cartwright, and ingram, were charged with having committed a burglary in the house of a gentleman named pym, who lived in a village in hertfordshire, marshall being at that time, and cartwright having previously been, butler in the gentleman's service. ingram had been a footman in london. the burglary was not in itself of an aggravated character. plate only was stolen, and that had been concealed under the gravel bed of a little rivulet which ran through the grounds. no violence or threat of violence had been offered to any inmate of the house, yet the case was looked upon as serious because of the position of trust which had been held by the two butlers. ingram was admitted as king's evidence. the butlers were convicted, sentenced to death, and hanged, whilst ingram was, according to universal practice, set at liberty. before the expiration of a year, however, he was convicted of having stolen a horse, and as horse-stealing was a capital offence at that time, he suffered the penalty of death at hereford. it was a curious coincidence that only a year or two afterwards a man named probert, who had given king's evidence upon which the notorious thurtell and hunt were convicted of the brutal murder of weare and executed, was also released, and within a year convicted of horse-stealing and hanged. an old calendar for the assize at lincoln, which i give as an appendix, reminds me of the condition of the law and of its victims at that time. at every assize it was like a tiger let loose upon the district. if a man escaped the gallows, he was lucky, while the criminals were by no means the hardened ruffians who had been trained in the school of crime; they were mostly composed of the most ignorant rural labourers--if, indeed, in those days there were any degrees of ignorance, when to be able to read a few words by spelling them was considered a prodigious feat. jurors often endeavoured to mitigate the terrors of the law by finding that the stolen property, however valuable it might be, was of less value than five shillings. may the recording angel "drop a tear over this record of perjury and blot it out for ever." it was in those days that mr. justice graham was called upon to administer the law, and on one occasion particularly he vindicated his character for courtesy to all who appeared before him. he was a man unconscious of humour and yet humorous, and was not aware of the extreme civility which he exhibited to everybody and upon all occasions, especially to the prisoner. people went away with a sense of gratitude for his kindness, and when he sentenced a batch of prisoners to death he did it in a manner that might make any one suppose, if he did not know the facts, that they had been awarded prizes for good conduct. he was firm, nevertheless--a great thing in judges, if not accompanied with weakness of mind. i may add that there was a singular precision in his mode of expression as well as in his ideas. at a country assize, where he was presiding in the crown court, a man was indicted for murder. he pleaded "not guilty." the evidence contained in the depositions was terribly clear, and, of course, the judge, who had perused them, was aware of it. the case having been called on for trial, counsel for the prosecution applied for a postponement on the ground of the absence of a most material witness for the crown. i should mention that in those days counsel were not allowed to speak for the prisoner, but the judge was always in theory supposed to watch the case on his behalf. in the absence of a _material_ witness the prisoner would be acquitted. the learned mr. justice graham asked the accused if he had any objection to the case being postponed until the next assizes, on the ground, as the prosecution had alleged, that their most material witness could not be produced. his lordship put the case as somewhat of a misfortune for the prisoner, and made it appear that it would be postponed, if he desired it, as a favour to _him_. notwithstanding the judge's courteous manner of putting it, the prisoner most strenuously objected to any postponement. it was not for him to oblige the crown at the expense of a broken neck, and he desired above all things to be tried in accordance with law. he stood there on his "jail delivery." graham was firm, but polite, and determined to grant the postponement asked for. in this he was doubtless right, for the interests of justice demanded it. but to soften down the prisoner's disappointment and excuse the necessity of his further imprisonment, his lordship addressed him in the following terms, and in quite a sympathetic manner:-- "prisoner, i am extremely sorry to have to detain you in prison, but _common humanity_ requires that i should not let you be tried in the absence of an important witness for the prosecution, although at the same time i can quite appreciate your desire to have your case speedily disposed of; one does not like a thing of this sort hanging over one's head. but now, for the sake of argument, prisoner, suppose i were to try you to-day in the absence of that material witness, and yet, contrary to your expectations, they were to find you guilty. what then? why, in the absence of that material witness, i should have to sentence you to be hanged on monday next. that would be a painful ordeal for both of us. "but now let us take the other alternative, and let us suppose that if your trial had been put off, and the material witness, when called, could prove something in your favour--this sometimes happens--and that that something induced the jury to acquit you, what a sad thing that would be! it would not signify to you, because you would have been hanged, and would be dead!" here his lordship paused for a considerable time, unable to suppress his emotion, but, having recovered himself, continued,-- "but you must consider what my feelings would be when i thought i had hanged an innocent man!" at the next assizes the man was brought up, the material witness appeared; the prisoner was found guilty, and hanged. the humane judge's feelings were therefore spared. at the old bailey he was presiding during a sessions which was rather light for the times, there being less than a score left for execution under sentence of death. there were, in fact, only sixteen, most of them for petty thefts. his lordship, instead of reading the whole of the sixteen names, omitted one, and read out only fifteen. he then politely, and with exquisite precision and solemnity, exhorted them severally to prepare for the awful doom that awaited them the following monday, and pronounced on each the sentence of death. they left the dock. after they were gone the jailer explained to his lordship that there had been _sixteen_ prisoners capitally convicted, but that his lordship had omitted the name of one of them, and he would like to know what was to be done with him. "what is the prisoner's name?" asked graham. "john robins, my lord." "oh, bring john robins back--by all means let john robins step forward. i am obliged to you." the culprit was once more placed at the bar, and graham, addressing him in his singularly courteous manner, said apologetically,-- "john robins, i find i have accidentally omitted your name in my list of prisoners doomed to execution. it was quite accidental, i assure you, and i ask your pardon for my mistake. i am very sorry, and can only add that you will be hanged with the rest." chapter xiii. glorious old days--the hon. bob grimston, and many others--chicken-hazard. the old glories of the circuit days vanished with stage-coaches and post-chaises. if you climbed on to the former for the sake of economy because you could not afford to travel in the latter, you would be fined at the circuit mess, whose notions of propriety and economy were always at variance. those who obtained no business found it particularly hateful to keep up the foolish appearance of having it by means of a post-chaise. you might not ride in a public vehicle, or dine at a public table, or put up at an inn for fear of falling in with attorneys and obtaining briefs from them surreptitiously. the home circuit was very strict in these respects, but it was the cheapest circuit to travel in the kingdom, so that its members were numerous and, i need not say, various in mind, manner, and position. but it was a circuit of brilliant men in my young days. many of them rose to eminence both in law and in parliament. it was a time, indeed, when, if judges made law, law made judges. i should like to say a word or two about those times and the necessary studies to be undergone by those who aspired to eminence. in the days of my earliest acquaintance with the law, an ancient order of men, now almost, if not quite, extinct, called special pleaders, existed, who, after having kept the usual number of terms--that is to say, eaten the prescribed number of dinners in the inn of court to which they belonged--became qualified, on payment of a fee of £ , to take out a crown licence to plead under the bar. this enabled them to do all things which a barrister could do that did not require to be transacted in court. they drew pleadings, advised and took pupils. some of them practised in this way all their lives and were never called. others grew tired of the drudgery, and were called to the bar, where they remained _junior_ barristers as long as they lived, old age having no effect upon their status. some were promoted to the ancient order of serjeants-at-law, or were appointed her majesty's counsel, while some of the serjeants received from the crown patents of precedence with priority over all queen's counsel appointed after them, and with the privilege of wearing a silk gown and a queen's counsel wig. there was, however, this difference between a queen's counsel and the holder of a patent of precedence: that the former, having been appointed one of her majesty's counsel, could not thenceforth appear without special licence under the sign-manual of the queen to defend a prisoner upon a criminal charge. the serjeant-at-law is as rare now as a bustard. i mention these old-fashioned times and studies, not because of their interest at the present day, but because they produced such men as littledale, bayley, parke (afterwards lord wensleydale), alderson, tindal, patteson, wightman, crompton, vaughan williams, james, willes, and, later, blackburn. the contemplation of these legal giants, amongst whom my career commenced, somewhat checked the buoyant impulse which had urged me onward at quarter sessions, but at the same time imparted a little modest desire to imitate such incomparable models. those of them who were selected from the junior bar were good examples of men whose vast knowledge of law was acquired in the way i have indicated, and who were chosen on their merits alone. but even these successful examples, however encouraging to the student, were, nevertheless, not ill-calculated to make a young barrister whose income was small, and sometimes, as in my case, by no means _assured_ to him, sicken at the thought that, study as he liked, years might pass, and probably would, before a remunerative practice came to cheer him. perhaps it would never come at all, and he would become, like so many hundreds of others of his day and ours, a hopeless failure. all were competitors for the briefs and even the smiles of solicitors; for without their favour none could succeed, although he might unite in himself all the qualities of lawyer and advocate. the prospect was not exhilarating for any one who had to perform the drudgery of the first few years of a junior's life; nevertheless, i was not cast down by the mere apprehension, or rather the mere possibility of failure, for when i looked round on my competitors i was encouraged by the thought that dear old woollet knew more about a rate appeal than littledale himself, while old peter ryland, with his inimitable saxon, was quite as good at the irremovability of a pauper as codd was in accounting for the illegal removal of a duck, and both in their several branches of knowledge more learned than alderson or bayley. but here i was, launched on that wide sea in which i was "to sink or swim," and, as i preferred the latter, i struck out with a resolute breast-stroke, and, as i have said, never failed to keep my head above water. it was some satisfaction to know that, if the judges were so learned, there was yet more learning to come; much yet to come down from, the old table-land of the common law, and much more from the inexhaustible fountain of parliament. the quarter sessions court was the arena of my first eight years of professional life. i watched and waited with unwearied attention, never without hope, but often on the very verge of despair, of ever making any progress which would justify my choosing it as a profession. my greatest delight, perhaps, was the obtaining an acquittal of some one whose guilt nobody could doubt. all the struggle of those times was the fight for the "one three six," and the hardest effort of my life was the most valuable, because it gave me the key which opened the door to many depositories of unexplored wealth. there were many men who outlived their life, and others who never lived their lives at all; many men who did nothing, and many more who would almost have given their lives to do something. there was, however, one man of those days whom i cannot here pass over, as he remained my companion and friend to his life's end, and will be remembered by me with affection and reverence to the end of my own. it was old bob grimston, whom i first met at the benefit of "the spider," one of the famous prize-fighters of the time. the hon. bob grimston was known in the sporting world as one of its most enthusiastic supporters, and acknowledged as one of the best men in saddle or at the wicket. but bob was not only a sportsman--he was a gentleman of the finest feeling you could meet, and the keenest sense of honour. having thus spoken of some of the eminent men of my early days, i would like to mention a little incident that occurred before i had fairly settled down to practise, or formed any serious intention as to the course i should pursue--that is to say, whether i should remain a sessions man like woollet, or become a master of saxon like old peter ryland, a sportsman like bob grimston, or a cosmopolitan like rodwell, so as to comprehend all that came in my way. i chose the latter, for the simple reason that in principle i loved what in these days would be called "the open door," and received all comers, even sometimes entertaining solicitors unawares. accordingly i laid myself open to the attention of kind friends and people whose manner of life was founded on the christian principle of being "given to hospitality." but before i come to the particular incident i wish to describe, i must briefly mention a remarkable case that was tried in the queen's bench, and which necessarily throws me back a year or two in my narrative. it was a case known as "boyle and lawson," and the incident it reveals will give an idea of the state of society of that day. i am not sure whether it differs in many respects from that of the present, except in so far as its _honour_ is concerned, for what was looked upon then as a flagrant outrage on public morality is now regarded as an error of judgment, or a mistake occasioned by some fortuitous combination of unconsidered circumstances. such is the value in literature and argument of long words without meaning. however, the action was brought against the proprietors of the _times_ newspaper for libel. the libel consisted in the statement that the respectable plaintiff--a lady--had conspired with persons unknown to obtain false letters of credit for large sums of money. the hospitable friends i refer to lived in excellent style in norwich. how they had attained their social distinction i am unable to say, but they were, in fact, in the "very best set," which in norwich was by no means the fastest. i was travelling at this time with charles willshire and his brother thomas, who was a mere youth. there was also an undergraduate of cambridge of the name of crook with us, and another who had joined our party for a few days' ramble. we were enjoying ourselves in the old city of norwich as only youth can, when we received an invitation to pass an evening in a very fashionable circle. how the invitation came i could not tell, but we made no inquiry and accepted it. arrived at the house, which was situated in the most aristocratic neighbourhood that norwich could boast, we found ourselves in the most agreeable society we could wish to meet. this was a group of exalted and fashionable personages arrayed in costumes of the superb prince regent style. nothing could exceed this party in elegance of costume or manners. you could tell at once they were, as it was then expressed, "of the quality." their cordiality was equalled only by their courtesy, and had we been princes of the blood we could not have received a more polite welcome. there was an elegance, too, about the house, and a refinement which coincided with the culture of the hosts and guests. altogether it was one of the most agreeable parties i had ever seen. there were several gentlemen, all prince regents, and one sweet lady, charming in every way, from the well-arranged blonde tresses to the neatest little shoe that ever adorned a cinderella foot. she was beautiful in person as she was charming in manner. you saw at once that she moved in the best norwich society, and was the idol of it. crook was perfectly amazed at so much grace and splendour, but then he was much younger than any of us. i don't think any one was so much smitten as crook. we had seen more of the world than he had--that is to say, more of the witness-box--and if you don't see the world there, on its oath, you can see it nowhere in the same unveiled deformity. we enjoyed ourselves very much. there was good music and a little sweet singing, the lady being in that art, as in every other, well trained and accomplished. if i was not altogether ravished with the performance, crook was. you could see that by the tender look of his eyes. after the music, cards were introduced, and they commenced playing _vingt-et-un_, crook being the special favourite with everybody, especially with the ladies. i believe much was due to the expression of his eyes. as i had given up cards, i did not join in the game, but became more and more interested in it as an onlooker. i was a little surprised, however, to find that in a very short while, comparatively, our friend crook had lost £ or £ ; and as this was the greater part of his allowance for travelling expenses, it placed him in a rather awkward position. some men travel faster when they have no money; this was not the case with poor crook, who travelled only by means of it. alas, i thought, _twenty-one_ and _vingt-et-un_! it was a serious matter, and the worse because crook was not a good loser: he lost his head and his temper as well as his money; and i have ever observed through life that the man who loses his temper loses himself and his friends. he was disgusted with his bad luck, but nurtured a desperate hope--the forlorn hope that deceives all gamblers--that he should retrieve his losses on some future occasion, which he eagerly looked for and, one might say, demanded. the occasion was not far off; it was, in fact, nearer than crook anticipated. his pleasant manner and agreeable society at _vingt-et-un_ procured us another invitation for the following night but one, and of course we accepted it. it was a great change to me from the scenery of the elm court chimney-pots. whatever might be crook's happily sanguine disposition and hope of retrieving his luck, there was one thing which the calculator of chances does not take into consideration in games of this kind. we, visiting such cultured and fashionable people, would never for a moment think so meanly of our friends; i mean the possibility of their cheating, a word never mentioned in well-bred society. a suspicion of such conduct, even, would be tantamount to treason, and a violation of the rules that regulate the conduct of ladies and gentlemen. it was far from all our thoughts, and the devil alone could entertain so malevolent an idea. be that as it may, as a matter of philosophy, the onlooker sees most of the game, and as i was an onlooker this is what i saw:-- the elegant lady _exchanged glances with one of the players while she was looking over crook's hand_! crook was losing as fast as he could, and no wonder. i was now in an awkward position. to have denounced our hosts because i interpreted a lady's glances in a manner that made her worse than a common thief might have produced unknown trouble. but i kept my eye on the beautiful blonde, nevertheless, and became more and more confirmed in my suspicions without any better opportunity of declaring them. the charming well-bred lady thus communicating her knowledge of crook's cards, i need not say he was soon reduced to a state of insolvency; and as the party was too exclusive and fashionable to extend their hospitality to those who had not the means of paying, it soon broke up, and we returned to our rooms, i somewhat wiser and crook a great deal poorer. such was the adventure which came to my mind when i saw in the queen's bench at westminster the trial of "boyle and lawson" against the _times_ for calumnious insinuations against the character of a lady and others, suggesting that they obtained false letters of credit to enable them to cheat and defraud. _this_ was the select party which norwich society had lionized--the great unknown to whom we had been introduced, and where crook had been cheated out of his travelling-money! the lady was the fair plaintiff in this action, seeking for the rehabilitation of her character; and she succeeded in effecting that object so far as the outlay of one farthing would enable her to do so, for that was all the jury gave her, and it was exactly that amount too much. her character was worth more to her in crook's time. speaking of a man running society on his fees--that is, endeavouring to cope with the rich on the mere earnings of a barrister, however large they may be--i have met with several instances which would have preserved me from the same fate had i ever been cursed with such an inclination. the number of successful men at the bar who have been ruined by worshipping the idol which is called "society," and which is perhaps a more disastrous deity to worship than any other, is legion. this is one unhappy example, the only one i intend to give. while i was living in bond street, and working very hard, i had little time and no inclination to lounge about amongst the socially great; i had, indeed, no money to spend on great people. the entrance-fee into the portals of the smart society temple is heavy, especially for a working-man; and so found the bright particular star who had long held his place amidst the splendid social galaxy, and then disappeared into a deeper obscurity than that from which he had emerged, to be seen no more for ever. he was a queen's counsel, a brilliant advocate in a certain line of business, and a popular, agreeable, intellectual, and amusing companion. he obtained a seat in parliament, and a footing in society which made him one of its selected and principal lions. in every society paper, amongst its most fashionable intelligence, there was he; and society hardly seemed to be able to get along without him. one sunday afternoon i was reading in my little room when this agreeable member of the _élite_ called upon me. my astonishment was great, because at that time of my career not only did i not receive visitors, but _such_ a visitor was beyond all expectation, and i wondered, when his name was announced, what could have brought him, he so great and i comparatively nothing. it is true i had known him for some time, but i knew him so little that i thought of him as a most estimable great man whose career was leading him to the highest distinction in his profession. another extraordinary thing that struck me long after, but did not at the time, was that the business he came upon made no particular impression on my mind, any more than if it had been the most ordinary thing in the world. that to me is still inexplicable. my visitor did not let troubles sit upon him, if troubles he ever had, for he seemed to be in the highest spirits. society kept him ever in a state of effervescent hilarity, so that he never let anything trouble him. at this time he was making at the bar seven or eight thousand a year, and consequently, i thought, must be the happiest of men. his manner was agreeable, and his face wore a smile of complacency at variance with the nature of his errand, which he quickly took care to make known by informing me that he was in a devil of a mess, and did not know what he should do to get out of it. "oh," i said quite carelessly, "you'll manage." and little did i think i should be the means of fulfilling my own prophecy. "the fact is, my dear hawkins," said the wily intriguer, for such he was, "i'll tell you seriously how i stand. to-morrow morning i have bills becoming due amounting to £ , , and i want you to be good enough to lend me that sum to enable me to meet them." i was perfectly astounded! this greatness to have come down to £ , on the wrong side of the ledger. "i have no such amount," said i, "and never had anything like it at my bank." i must say i pitied him, and began to wonder in what way i _could_ help him. he was so really and good-naturedly in earnest, and seemed so extremely anxious, that at last i said, "well, i'll see what i can do," and asked him to meet me in court the following morning, when i would tell him whether i could help him or not. his gratitude was boundless; my kindness should never be forgotten--no, as long as he lived! and if he had been addressing a common jury he could not have used more flowers of speech or shed more abundant tears to water them with. i was the best friend he had ever had. and, as it seemed afterwards, very foolishly so, because he told me he had not one farthing of security to offer for the loan. a man who ought to have been worth from fifty to a hundred thousand pounds! however, i went to my bankers' and made arrangements to be provided with the amount. i met him at the place of appointment, and was quite surprised to see the change in his demeanour since the day before. he was now apparently in a state of deeper distress than ever, and thinking to soothe him, i said, "it's all right; you can have the money!" once more he overwhelmed me with the eloquence of a grateful heart, but said it was of no use--no use whatever; that instead of £ , he had other bills coming in, and unless they could all be met he might just as well let the others go. "how much do you _really_ want to quite clear you?" i asked, with a simplicity which astonishes me to this day. "well," he said, "nothing is of the least use under £ , ." i was a little staggered, but, pitying his distress of mind, went once more to my bankers' and made the further necessary arrangements. i borrowed the whole amount at five per cent., and placed it to the credit of this brilliant queen's counsel. the only terms i made with him on this new condition of things was that he should, out of his incoming fees, pay my clerk £ a quarter until the whole sum was liquidated. this he might easily have done, and this he arranged to do; but the next day he pledged the whole of his prospective income to a jew, incurred fresh liabilities, and left me without a shadow of a chance of ever seeing a penny of my money again. i need not say every farthing was lost, principal and interest. i say interest, because it cost me five per cent, till the amount was paid. his end was as romantic as his life, but it is best told in the words of my old friend charley colman, who never spares colour when it is necessary, and in that respect is an artist who resembles nature. thus he writes:-- "what a coward at heart was ----! he allowed himself to be sat upon and crushed without raising a hand or voice in his defence of himself. when he returned from america he accepted a seat in ---- office--in the office of the man who urged lord ---- to prosecute him. "after your gift to him--a noble gift of £ , --he called at my chambers, spoke in high terms of your generosity, and wished all the world to know it, so elated was he. i was to publish it far and wide. he went away. in half an hour he returned, and begged me to keep the affair secret. 'too late,' said i. 'several gentlemen have been here, and to them i mentioned the matter, and begged them to spread it far and wide.' his heart failed him when he thought he would be talked about. "he was a kind-hearted fellow at times--generous to a fault, always most abstemious; but he had a tongue, and one he did not try to control. he used to say stinging things of people, knowing them to be untrue. "what a life! what a terrible fate was his! turned out of parliament; made to resign his benchership; his gown taken from him by the benchers; driven to america by his creditors to get his living; not allowed to practise in the supreme court in america. at forty-five years of age his life had foundered. he returns to england--for what! simply to find his recklessness had blasted his life, and then--? "sometimes, in spite of _all_, i feel a moisture in my eye when i think of him. had he been true to himself what a brilliant life was open to him! what a practice he had! up to the last he told me that he turned £ , a year. he worked hard, very hard, and his gains went to ---- or to chicken-hazard! poor fellow!" chapter xiv. peter ryland--the rev. mr. faker and the welsh will. i was retained at hertford assizes, with peter ryland as my leader, to prosecute a man for perjury, which was alleged to have been committed in an action in which a cantankerous man, who had once filled the office of high sheriff for the county, was the prosecutor. wealthy and disagreeable, he was nevertheless a henpecked tyrant. mrs. brown, his wife, was a witness for the prosecution in the alleged perjury--which was unfortunate for her husband, because she had the greatest knowledge of the circumstances surrounding the case; while mr. brown had the best knowledge of the probable quality of his wife's evidence. when we were in consultation and considering the nature of this evidence, and arranging the best mode of presenting our case to the jury, brown interposed, and begged that mr. ryland should call mrs. brown as the _last_ witness, instead of first, which was the proper course. "because," said he, "_if anything goes wrong during the trial or anything is wanting, mrs. brown will be quite ready to mop it all up_." this in a prosecution for _perjury_ was one of the boldest propositions i had ever heard. i need not say that good mrs. brown was called, as she ought to have been, first. the lady's mop was not in requisition at that stage of the trial, and the jury decided against her. i was sometimes in the divorce court, and old jack holker was generally my opponent. he was called "long odds." in one particular case i won some _éclat_. it is not related on that account, however, but simply in consequence of its remarkable incidents. no case is interesting unless it is outside the ordinary stock-in-trade of the law courts, and i think this was. the details are not worth telling, and i therefore pass them by. cresswell was the president, and the future president, hannen, my junior. we won a great victory through the remarkable over-confidence and indiscretion of edwin james, q.c., who opposed us. james's client was the husband of the deceased. by her will the lady had left him the whole of her property, amounting to nearly £ , . the case we set up was that the wife had been improperly influenced by her husband in making it, and that her mind was coerced into doing what she did not intend to do, and so we sought to set aside the will on that ground. edwin james had proved a very strong case on behalf of the validity of the will. he had called the attesting witnesses, and they, respectable gentlemen as they undoubtedly were, had proved all that was necessary--namely, that the testator, notwithstanding that she was in a feeble condition and almost at the last stage, was perfectly calm and capable in mind and understanding--exactly, in fact, as a testator ought to be who wills her property to her husband if he retains her affection. the witnesses had been cross-examined by me, and nothing had been elicited that cast the least doubt upon their character or credibility. had the matter been left where it was, the £ , would have been secured. but james, whatever may have been his brilliance, was wanting in tact. he would not leave well alone, but resolved to call the rev. mr. faker, a distinguished dissenting minister. in fiction this gentleman would have appeared in the melodramatic guise of a spangled tunic, sugar-loaf hat, with party-coloured ribbons, purple or green breeches, and motley hose; but in the witness-box he was in clerical uniform, a long coat and white cravat with corresponding long face and hair, especially at the back of his head. a soberer style of a stage bandit was never seen. he was just the man for cross-examination, i saw at a glance--a fancy witness, and, i believe, a welshman. as he was a christian warrior, i had to find out the weak places in his armour. but little he knew of courts of law and the penetrating art of cross-examination, which could make a hole in the triple-plated coat of fraud, hypocrisy, and cunning. i was in no such panoply. i fought only with my little pebblestone and sling, but took good aim, and then the missile flew with well-directed speed. i had to throw at a venture at first, because, happily, there were no instructions how to cross-examine. not that i should have followed them if there had been; but i might have got a _fact_ or two from them. it is well known that artifice is the resource of cunning, whether it acts on the principle of concealing truth or boldly asserting falsehood. here the reverend strategist did both: he knew how a little truth could deceive. you must remember that at this point of the case, when the rev. faker was called, there was nothing to cross-examine about. i knew nothing of the parties, the witnesses, the solicitors, or any one except my learned friends. it would not have been discreditable to my advocacy if i had submitted to a verdict. i will, therefore, give the points of the questions which elicited the truth from the christian warrior; and probably the non-legal reader of these memoirs may be interested in seeing what may sometimes be done by a few judicious questions. "mr. faker," i said. "sir," says faker. "you have told us you acted as the adviser of the testatrix." "yes, sir." "spiritual adviser, of course?" a spiritual bow. "you advised the deceased lady, probably, as to her duties as a dying woman?" "certainly." "duty to her husband--was that one?" a slight hesitation in mr. faker revealed the vast amount of fraud of which he was capable. it was the smallest peephole, but i saw a good way. till then there was nothing to cross-examine about, but after that hesitation there was £ , worth! he had betrayed himself. at last faker said,-- "yes, mr. hawkins; yes, sir--her duty to her husband." "in the way of _providing_ for him?" was my next question. "oh yes; quite so." "you were careful, of course, as you told your learned counsel, to avoid any undue influence?" "certainly." "the will was not completed, i think, when you first saw the dying woman--on the day, i mean, of her death?" "no, not at that time." "was it kept in a little bag by the pillow of the testatrix? did she retain the keys of the bag herself?" "that is quite right." "had it been executed at this time? i think you said not?" "not at this time; it had to be revised." "how did you obtain possession of the keys?" "i obtained them." "yes, i know; but without her knowledge?" it was awkward for faker, but he had to confess that he was not sure. then he frankly admitted that the will was taken out of the bag--in the lady's presence, of course, but whether she was quite dead or almost alive was uncertain; and then he and the husband spiritually conferred as to what the real intention of the dying woman in the circumstances was _likely to be_, and having ascertained that, they made _another will_, which they called "settling the former one" by carrying out the lady's intentions, the lady being now dead to all intentions whatsoever. this was the will which was offered for probate! cresswell thought it was a curious state of affairs, and listened with much interest to the further cross-examination. "had you ever seen any other will?" i inquired. it was quite an accidental question, as one would put in a desultory sort of conversation with a friend. "er--yes--i have," said faker. "what was that?" "well, it was a will, to tell you the truth, mr. hawkins, executed in my favour for £ , ." "where is it?" "i have not the original," said the minister, "but i have a copy of it." "copy! but where is the original?" "original?" repeats faker. "yes, the original; there must have been an original if you have a copy." "oh," said the rev. faker, "i remember, the original was destroyed after the testatrix's death." "how?" "burnt!" even the very grave hannen, my ever-respected friend and junior, smiled; cresswell, never prone to smile at villainy, smiled also. "the original burnt, and only a copy produced! what do you mean, sir?" the situation was dramatic. "is it not strange," i asked, "even in _your_ view of things, that the original will should be burnt and the copy preserved?" "yes," answered the reverend gentleman; "perhaps it would have been better--" "to have burnt the copy and given us the original, and more especially after the lady was dead. but, let me ask you, _why_ did you destroy the original will?" i pressed him again and again, but he could not answer. the reason was plain. his ingenuity was exhausted, and so i gave him the finishing stroke with this question,-- "will you swear, sir, that an original will ever existed?" the answer was, "no." i knew it _must_ be the answer, because there could be no other that would not betray him. "what is your explanation?" asked cresswell. "my explanation, my lord, is that the testatrix had often expressed to me her intention to leave me £ , , and i wrote the codicil which was destroyed to carry out her wishes." cresswell had warned james early in the case as to the futility of calling witnesses after the two who alone were necessary, but to no purpose; he hurried his client to destruction, and i have never been able to understand his conduct. the most that can be said for him is that he did not suspect any danger, and took no trouble to avoid incurring it. it is curious enough that on the morning of the trial we had tried to compromise the matter by offering £ , . the refusal of the offer shows how little they thought that any cross-examination could injure their cause. hannen said he could not have believed a cross-examination could be conducted in that manner without any knowledge of the facts, and paid me the compliment of saying it was worth at the least £ , . chapter xv. tattersall's--baron martin, harry hill, and the old fox in the yard. tattersall's in my time was one of the pleasantest sunday afternoon lounges in london. there was a spirit of freedom and social equality pervading the place which only belongs to assemblies where sport is the principal object and pleasure of all. there was also the absence of irksome workaday drudgery; i think that was, after all, the main cause of its being so delightful a meeting-place to me. there was, however, another attraction, and that was dear old baron martin, one of the most pleasant companions you could meet, no matter whether in the court of exchequer or the "old ring." a keen sportsman he was, and a shrewd, common-sense lawyer--so great a lover of the turf that it is told of him, and i know it to be true, that once in court a man was pointed out to him bowing with great reverence, and repeating it over and over again until he caught the baron's attention. the judge, with one pair of spectacles on his forehead and another on his eyes, immediately cried aloud to his marshal, "custance, the jockey, as i'm alive!" and then the baron bowed most politely to the man in the crowd, the most famous jockey of his day. speaking of tattersall's reminds me of many things, amongst them of the way in which, happily, i came to the resolution never to bet on a horse-race. it was here i learnt the lesson, at a place where generally people learn the opposite, and never forgot it. no sermon would ever have taught me so much as i learnt there. like my oldest and one of my dearest friends on the turf, lord falmouth, i never made a bet after the time i speak of. no one who lives in the world needs any description of the tattersall's of to-day. but the tattersall's of my earlier days was not exactly the same thing, although the differences would not be recognizable to persons who have not over-keen recollections. the institution has perhaps known more great men than parliament itself--not so many bishops, perhaps, as the church, but more statesmen than could get into the house of lords; and all the biographies that have ever been written could not furnish more illustrations of the ups and downs of life, especially the downs, nor of more illustrious men. the names of all the great and mediocre people who visited the famous rendezvous would fill a respectable court guide, and the money transactions that have taken place would pay off the national debt. all this is a pleasant outcome of the national character. do not suppose that judges, other than baron martin, never looked in, for they did, and so did learned and illustrious queen's counsel and serjeants-at-law, authors, editors, actors, statesmen, and, to sum it up in brief, all the real men of the day of all professions and degrees of social position. at first my visits were infrequent; afterwards i went more often, and then became a regular attendant. i loved the "old ring," and yet could never explain why. i think it was the variety of human character that charmed me. i was doing very little at the bar, and was, no doubt, desirous to make as many acquaintances as possible, and to see as much of the world as i could. it is a long way back in my career, but i go over the course with no regrets and with every feeling of delight. everything seems to have been enjoyable in those far-off days, although i was in a constant state of uncertainty with regard to my career. there were three principal places of pleasure at that time: one was tattersall's, one newmarket, and the courts of law a third. there used to be, in the centre of the yard or court at tattersall's, a significant representation of an old fox, and i often wondered whether it was set up as a warning, or merely by way of ornamentation, or as the symbol of sport. it might have been to tell you to be wary and on the alert. but whatever the original design of this statue to reynard, the old fox read me a solemn lesson, and seemed to be always saying, "take care, harry; be on your guard. there are many prowlers everywhere." but there was another monitor in constant attendance, who was deservedly respected by all who had the pleasure of his acquaintance--that is to say, by all who visited tattersall's more than once. he was not in the least emblematic like the old fox, but a man of sound sense, with no poetry, of an extremely good nature, and full of anecdote. you might follow his advice, and it would be well with you; or you might follow your opinion in opposition to his and take your chance. his name was hill--harry hill they familiarly called him--and although you might have many a grander acquaintance, you could never meet a truer friend. he was an old and much-respected friend of the baron, and that says a great deal for him; for if anybody in the world could understand a _man_, it was baron martin. whether it was the prime minister or the unhappy thief in the dock, he knew all classes and all degrees of criminality. he was not poetical with regard to landscapes, for if one were pointed out to him by some proprietor of a lordly estate, he would say, "yes, a vera fine place indeed; and i would have the winning-post _there_!" the old fox and harry hill! the two characters at tattersall's in those days can never be forgotten, by those who knew them. it may seem strange in these more enlightened days that at that time i was under the impression that no one could make a bet unless he had the means of paying if he lost. this statement will provoke a smile, but it is true. the consequence was that i was debarred from speculating where i thought i had a most excellent chance of winning, having been brought up to believe that the world was almost destitute of fraud--a strange and almost unaccountable idea which only time and experience proved to be erroneous. judge of the vast unexplored field of discovery that lay before me! harry hill was better informed. he had lived longer, and had been brought in contact with the cleverest men of the age. he knew at a glance the adventurous fool who staked his last chance when the odds were a hundred to one, and also the man of honour who staked his life on his honesty--and sometimes _lost_! there were "blacklegs" in those days who looked out for such honest gentlemen, and _won_--scoundrels who degrade sport, and trade successfully on the reputations of men of honour. you cannot cope with these; honesty cannot compete with fraud either in sport or trade. it was a very brief sunday sermon which harry preached to me this afternoon, but it was an effective one, and out of the abundance of his good nature he gave me these well-remembered words of friendly warning,-- "mr. hawkins, i see you come here pretty regularly on sunday afternoons; but i advise you not to speculate amongst us, for if you do we shall beat you. we know our business better than you do, and you'll get nothing out of us any more than we should get out of you if we were to dabble in your law, for you know _that_ business better than we do." this disinterested advice i took to heart, and treated it as a warning. i thanked mr. hill, promised to take advantage of his kindness, and kept my word during the whole time that tattersall's remained in the old locality, which it did for a considerable period. the establishment at this time was at hyde park corner, and had been rented from lord grosvenor since . it was used for the purpose of selling thoroughbreds and other horses of a first-rate order, until the expiration of the lease, which was, i think, in . it was then removed to knightsbridge, where i still continued my visits. the new premises, or, as it might be called, the new institution, was inaugurated with a grand dinner, chiefly attended by members of the sporting world, including admiral rous, george payne, and many other well-known and popular patrons of our national sport. there were also a great many who were known as "swells," people who took a lively interest in racing affairs, and others who belonged to the literary and artistic world, and enjoyed the national sports as well. it was a large assembly, and if any persons can enjoy a good dinner and lively conversation, it is those who take an interest in sport. mixed as the company might be, it was uniform in its object, which was to be happy as well as jolly. that i should have been asked to be present on this historic occasion was extremely gratifying, but i could find no reason for the honour conferred upon me, except that it 'might be because i had always endeavoured to make myself agreeable--a faculty, if it be a faculty, most invaluable in all the relations and circumstances of life. i was flattered by the compliment, because in reality i was the guest of all the really great men of the day. but a still more striking honour was in store. i was called upon to respond for somebody or something; i don't remember what it was to this day, nor had i the faintest notion what i ought to say. i was perfectly bewildered, and the first utterance caused a roar of laughter. i did not at that time know the reason. it is of no consequence whether you know what you are talking about in an after-dinner speech or not, for say what you may, hardly anybody listens, and if they do few will understand the drift of your observations. you get a great deal of applause when you stand up, and a great deal more when you sit down. i seemed to catch my audience quite accidentally by using a word tabooed at that time in sporting circles, because it represented the blacklegs of the racecourse, and was used as a nickname for rascaldom. "gentlemen," i said, "i have been unexpectedly called upon my _legs_--" then i stammered an apology for using the word in that company, and the laughter was unbounded. next morning all the sporting papers reported it as an excellent joke, although the last person who saw the joke was myself. after dinner we adjourned to the new premises, which included a betting-room, since christened "place," by interpretation of a particular statute by myself and others. oh the castigation i received from the jockey club on that account! whether the monitory fox was anywhere within the precincts i do not know, but i missed him at that time, and attributed to his absence the lapse from virtue which undermined my previous resolution, and in a moment undid the merits of exemplary years. however, it brought me to myself, and was, after all, a "blessing in disguise"--and pleasant to think of. we were in the betting-room, and there was harry hill, my genial old friend, who had advised me to take care, and never to bet, "because we know our business better than you do." alas! amidst the hubbub and excitement, to say nothing of the joviality of everybody and the excellence of the champagne, i said in a brave tone,-- "come now, mr. hill, i _must_ have a bet, on the opening of the new tattersalls. i will give you evens for a fiver on ---- for the derby!" alas! my friend, who _ought_ to have known better, forgot the good advice he had given me only a few years before, and i, heedless of consequences in my hilarity, repeated the offer of evens on the _favourite_. "done!" said two or three, and amongst them hill. i might have repeated the offer and accepted the bet over and over again, so popular was it. "done, done, done!" everywhere. but hill was the man for my money, and he had it. before morning the _favourite was scratched_! it was the race which hermit won! poor hastings lost heavily and died soon after. i had backed the wrong horse, and have never ceased to wonder how i could have been so foolish. "let me advise you not to speculate amongst us," were hill's words, "for if you do we shall beat you;" and it cost me five pounds to learn that. a lawyer's opinion may be worth what is paid for it in a case stated; but of the soundness of of a horse's wind, or the thousand and one ailments to which that animal's flesh and blood are heir, i knew nothing--not so much as the little boy who runs and fetches in the stable, and who could give the ablest lawyer in great britain or ireland odds on any particular favourite's "public form" and beat him. put not your trust in tipsters; they no more knew that hermit had a chance for the derby than they could foretell the snowstorm that was coming to enable him to win it. this was the last bet i ever made; and i owe my abandonment of the practice to harry hill, who gave me excellent advice and enforced it by example. chapter xvi. arising out of the "orsini affair." the "orsini affair" was one of high treason and murder. it was the attempt on the part of a band of conspirators to murder napoleon iii. in order to accomplish this _political_ object, they exploded a bomb as nearly under his majesty's carriage as they could manage, but instead of murdering the emperor they killed a policeman. orsini was captured, tried, and executed in the good old french fashion. his political career ended with the guillotine--a sharp remedy, but effective, so far as he was concerned. one dr. simon bernard was more fortunate than his principal, for he was in england, the refuge of discontented foreign murderers, who try to do good by stealth, and sometimes feel very uncomfortable when they find that it turns out to be assassination. bernard was a brother conspirator in this famous orsini business, and being apprehended in england, was taken to be tried before lord chief justice campbell, edwin james and myself being retained for the defence. there was no defence on the facts, and no case on the law. he was indicted for conspiracy with orsini to murder the emperor in paris. i had prepared a very elaborate and exhaustive argument in favour of the prisoner, on the law, and had little doubt i could secure his acquittal; but the facts were terribly strong, and we knew well enough if the jury convicted, campbell would hang the prisoner, for he never tolerated murder. with this view of the case, we summoned dr. bernard to a consultation, which was held in one of the most ghastly rooms of newgate. no more miserable place could be found outside the jail, and it could only be surpassed in horror by one within. it might have been, and probably was, an anteroom to hell, but of that i say nothing. i leave my description, for i can do no more justice to it. the only cheerful thing about it was dr. bernard himself. he was totally unconcerned with the danger of his situation, and regarded himself as a hero of the first order. murder, hanging, guillotine--all seemed to be the everyday chances of life, and to him there was nothing sweeter or more desirable, if you might judge by his demeanour. i thought it well to mention the fact that, if the jury found him guilty, lord campbell would certainly sentence him to death. he exhibited no emotion whatever, but shrugging his shoulders after the manner of a frenchman who differed from you in opinion, said,-- "well, if i am hanged, i must be hanged, that is all." with a man like him it was impossible to argue or ask for explanations. he seemed to be possessed with the one idea that to remedy all the grievances of the state it was merely necessary to blow up the emperor with his horses and carriage, and coolly informed us, without the least reserve, that the bombs manufactured with this political object had been sent over to paris from england concealed in firkins of butter. i can find no words in which to express my feelings. so ended our first consultation. the "merits" of the case were gone; there was no defence. but whatever might be our opinion on dr. bernard's state of mind, we could not abandon him to his fate. we were retained to defend him, and defend him we must, even in spite of himself, if we could do so consistently with our professional honour and duty. accordingly we had another consultation, and as i have said there was one other room in england more ghastly than that where we held our first interview, so now i reluctantly introduce you to it. if a man about to be tried for his life could look on this apartment and its horrors unmoved, he would certainly be a fit subject for the attentions of the hangman, and deserving of no human sympathy. it was enough to shake the nerves of the hangman himself. we were in an apartment on the north-east side of the quadrangular building, where the sunshine never entered. even daylight never came, but only a feeble, sickening twilight, precursor of the grave itself. it was not merely the gloom that intensified the horrors of the situation, or the ghastly traditions of the place, or the impending fate of our callous client; but there was a tier of shelves occupying the side of the apartment, on which were placed in dismal prominence the plaster-of-paris busts of all the malefactors who had been hanged in newgate for some hundred years. no man can look attractive after having been hanged, and the indentation of the hangman's rope on every one of their necks, with the mark of the knot under the ear, gave such an impression of all that can be conceived of devilish horror as would baffle the conceptions of the most morbid genius. whether these things were preserved for phrenological purposes or for the gratification of the most sanguinary taste, i never knew, but they impressed me with a disgust of the brutal tendency of the age. dr. bernard, however, seemed to take a different view. probably he was scientific. he went up to them, and examined, as it seemed, every one of these ghastly memorials with an interest which could only be scientific. it did not seem to have occurred to his brain that _his_ head would probably be the next to adorn that repository of criminal effigies. he was in charge of a warder, and looked round with the utmost composure, as though examining the caesars in the british museum, and was as interested as any fanatical fool of a phrenologist. he shrugged his shoulders, raised his eyebrows, and repeated his old formula, "well, if i am to be hanged, i must be hanged." _he was acquitted_. my elaborate arguments on the law were not necessary, for the jury actually refused to believe the evidence as to the facts! such are the chances of trial by jury! as a relief to this gloomy chapter i must tell you of a distinguished judge who had to sentence a dishonest butler for robbing his master of some silver spoons. he considered it his duty to say a few words to the prisoner in passing sentence, in order to show the enormity of the crime of a servant in his position robbing his master, and by way of warning to others who might be tempted to follow his example. "you, prisoner," said his lordship, "have been found guilty, by a jury of your country, of stealing these articles from your employer--mark that--_your employer_! now, it aggravates your offence that he is your employer, because he employs you to look after his property. you _did_ look after it, but not in the way that a butler should--mark that!" the judge here hemmed and coughed, as if somewhat exhausted with his exemplary speech; and then resumed his address, which was ethical and judicial: "you, prisoner, have _no_ excuse for your conduct. you had a most excellent situation, and a kind master to whom you owed a debt of the deepest gratitude and your allegiance as a faithful servant, instead of which you paid him by _feathering your nest with his silver spoons_; therefore you must be transported for the term of seven years!" the metaphor was equal to that employed by an attorney-general, who at a certain time in the history of the home rule agitation, addressing his constituents, told them that _mr. gladstone had sent up a balloon to see which way the cat jumped with regard to ireland_! he was soon appointed a judge of the high court. judges, however, are not always masters of their feelings, any more than they are of their language; they are sometimes carried away by prejudice, or even controlled by sentiment. i knew one, a very worthy and amiable man, who, having to sentence a prisoner to death, was so overcome by the terrible nature of the crime that he informed the unhappy convict that he could expect _no mercy either in this world or the next_! littledale, again, was an uncommonly kind and virtuous man, a good husband and a learned judge; but he was afflicted with a wife whom he could not control. she, on the contrary, controlled him, and left him no peace unless she had her will. at times, however, she overdid her business. littledale had a butler who had been in the family many years, and with whom he would not have parted on any account. he would sooner have parted with her ladyship. one morning, however, this excellent butler came to sir joseph and said, with tears in his eyes,-- "i beg your pardon, my lord--" "what's the matter, james?" "i'm very sorry, my lord," said the butler, "but i wish to leave." "wish to leave, james? why, what do you wish to leave for? haven't you got a good situation?" "capital sitiwation, sir joseph, and you have always been a good kind master to me, sir joseph; but, o sir joseph, sir joseph!" "what then, james, what then? why do you wish to leave? not going to get married, eh--not surely going to get married? o james, don't do it!" "heaven forbid, sir joseph!" "eh, eh? well, then, what is it? speak out, james, and tell me all about it. tell me--tell me as a friend! if there is any trouble--" "well, sir joseph, i could put up with anything from _you_, sir joseph, but i _can't get on with my lady_!" "my lady be--. o james, what a sinner you make of me! is that all, james? then go down on your knees at once and _thank god my lady is not your wife_!" it was a happy thought, and james stayed. i don't think i have mentioned a curious reason that a jury once gave for _not_ finding a prisoner guilty, although he had been tried on a charge of a most terrible murder. the evidence was irresistible to anybody but a jury, and the case was one of inexcusable brutality. the man had been tried for the murder of his father and mother, and, as i said, the evidence was too clear to leave a doubt as to his guilt. the jury retired to consider their verdict, and were away so long that the judge sent for them and asked if there was any point upon which he could enlighten them. they answered no, and thought they understood the case perfectly well. after a great deal of further consideration they brought in a verdict of "_not guilty_." the judge was angry at so outrageous a violation of their plain duty, and did what he ought not to have done--namely, asked the reason they brought in such a verdict, when they knew the culprit was guilty and ought to have been hanged. "that's just it, my lord," said the foreman of this distinguished body. "i assure you we had no doubt about the prisoner's guilt, but we _thought there had been deaths enough in the family lately, and so gave him the benefit of the doubt_!" there was a young solicitor who had been entrusted with a defence in a case of murder. it was his first case of importance, and he was, of course, enthusiastic in his devotion to his client's interests. indeed, his enthusiasm rather overstepped his prudence. by dint of perseverance and persuasion he obtained a promise from a juror-in-waiting that if he should be on the jury he would consent to no other verdict than manslaughter, which would be a tremendous triumph for the young solicitor. the case was a very strong one for wilful murder. the friendly juror-in-waiting took his seat in the box. everything went well except the evidence, and the solicitor's heart almost failed for fear his man should give way. the jury for a long time were unable to agree. now the young solicitor felt it was his faithful juror who was standing out. "all agreed but one, my lord." "go back to your room," said the judge; which they did, and after another long absence returned with a verdict of "manslaughter." jubilant with his success, the young solicitor met his juryman, congratulated him on his firmness, and thanked him for his exertions. "how did you manage it, my good friend--how did you manage? it was a wonderful verdict--wonderful!" "oh," said he, "i was determined not to budge. i never budge. conscience is ever my guide." "i suppose there were eleven to one against you?" "eleven to one! a tough job, sir--a tough job." "eleven for wilful murder, eh?" said the jubilant young man. "dear me, what a narrow squeak!" "eleven for _murder_! no, sir!" exclaimed the juror. "what, then?" "_eleven for an acquittal_! you may depend upon it, sir, the other jurors had been 'got at.'" lord watson, dining with me one grand day at gray's inn, said he recollected a very stupid and a very rude scottish judge (which seems very remarkable) who scarcely ever listened to an advocate, and pooh-poohed everything that was said. one day a celebrated advocate was arguing before him, when, to express his contempt of what he was saying, the cantankerous old curmudgeon of a judge pointed with one forefinger to one of his ears, and with the other to the opposite one. "you see this, mr. ----?" "i do, my lord," said the advocate. "well, it just goes in here and comes out there!" and his lordship smiled with the hilarity of a judge who thinks he has actually said a good thing. the advocate looked and smiled not _likewise_, but a good deal more wise. then the expression of his face changed to one of contempt. "i do not doubt it, my lord," said he. "what is there to prevent it?" the learned judge sat immovable, and looked--like a judicial--_wit_. i was now getting on so well in my profession that in the minds of many of the unsuccessful there was a natural feeling of disappointment. why one man should succeed and a dozen fail has ever been an unsolved problem at the bar, and ever will be. but the curious part of this natural law is that it manifests itself in the most unexpected manner. coming one day from a county court, where i had had a successful day, and humming a little tune, whom should i meet but my friend morgan ----. he was a very pleasant man, what is called a _nice man_, of a quiet, religious turn of mind, and nobody was ever more painstaking to push himself along. he was a great stickler for a man's doing his duty, and was possessed with the idea that, getting on as i was, it was my duty to refuse to take a brief in the county court. coming up to me on the occasion i refer to, morgan said, "what, _you_ here, hawkins! i believe you'd take a brief before the devil in h----." i was quite taken aback for the moment by the use of such language. if he had not been so religious a man, perhaps i should not have felt it so much; as it was, i could hardly fetch my breath. when i recovered my equanimity i answered, "yes, morgan, i would, and should get one of my devils to hold it." he seemed appeased by my frank avowal, for he loved honesty almost as much as fees. chapter xvii. appointed queen's counsel--a serious illness--sam lewis. on january , , the lord chancellor did me the honour of recommending my name to her most gracious majesty, and i was raised to the rank and dignity of a queen's counsel. this is a step of doubtful wisdom to most men in the legal profession, for it is generally looked upon as the end of a man's career or the beginning. i had no doubt about the propriety of the step; it had been the object of my ambition, and i believe i should unhesitatingly have acted as i did even if it had been the termination of my professional life. my idea was to go forward in the career i had chosen. the junior work, if it had not lost its emoluments, no longer possessed the pleasurable excitement of the old days. it was never my ambition merely to "mark time;" that is unsatisfactory exertion, and leads no whither. but enough; i took silk, and a new life opened before me. i was a leader. my business rolled on in ever-increasing volume, so that i had to fairly pick my way through the constant downpour of briefs, but was always pressed forward by that useful institution known as the "barrister's clerk." whatever business overwhelms the counsel, no amount of it would disconcert the clerk, and it is wonderful how many briefs he can arrange in upstanding attitude along mantelpieces, tables, tops of dwarf cupboards, windows--anywhere, in fact, where there is anything to stand a brief on--without that gentleman feeling the least exhausted. it would take as long to wear him out as to wear to a level the rocks of niagara. the loss of a brief to him is almost like the loss of an eye. it would take a week after such a disaster to get the right focus of things. my clerk came rushing into my room one day so pale and excited that i wondered if the man had lost his wife or child. he did not leave me long in suspense as soon as he could articulate his words. "sir," said he, "you know those emmets that you have done so much for?" i remembered. "well, sir, they've taken a brief to another counsel." it was a serious misfortune, no doubt, and i had to soothe him in the best manner i could; so to lessen the calamity i made the best joke i could think of in the circumstances, and said the emmets were small people, almost beneath notice. i don't wonder that he did not see it with tears in his eyes; his distress was painful to witness. the poor fellow was dumbfounded, but at last shook his head, saying,-- "we've had a good deal from those emmets, sir." "but you need not make mountains out of ant-hills." he did not see that either. i was now living in bond street, and for the first time in my life was taken seriously ill. my clerk's worry then came home to me; not about a single brief, but about a great many. illness would be a very serious matter, as i had arrived at an important stage in my career. a barrister in full practice cannot afford to be ill. in my distress i sent to baron martin, as i was in every case in his list for the following day, and begged him to oblige me by adjourning his court. it was a large request, but i knew his kindness, and felt i might ask the favour. baron martin, i should think, never in his life did an unkind act or refused to do a kind one. he instantly complied with my request, and did not listen for a moment to the "public interest," as the foolish fetish is called which sometimes does duty for its neglect. the "public interest" on this occasion was the interests of all those who had entrusted their business to my keeping. the public interests are the interests of the suitors. my illness threatened to be fatal. i had been overworked; and nothing but the greatest care and skill brought me round. one never knows what friendship is and what friends are till one is ill. at length there was a consultation, drs. addison, charles johnson, duplex, and f. hawkins, my cousin, being present. it was a kind of medical jury which sat upon me. i will pass over details, and come to the conclusion of the investigation. after considering the case, dr. addison, who acted as foreman of the jury, said,-- "we find a verdict of 'guilty,' under mitigating circumstances. the prisoner has not injured himself with intent to do any grievous bodily or mental harm, but he has been guilty of negligence, not having taken due care of himself, and we hope the sentence we are about to pass will act as a warning to him, and deter others from following a like practice. the prisoner is released on bail, to come up for judgment when called upon; and the meaning of that is," said dr. addison, "that if you behave yourself you will hear no more of this; but if you return to your former practice without any regard to the warning you have had, you will be promptly called up for judgment, and i need not say the sentence will be proportioned to the requirements of the case. you may now go." to carry on dr. addison's joke, i heartily thanked him for taking my good character into consideration, and practically acquitting me of all evil tendencies. acting upon his good advice, from that time to this i have never been in trouble again. watson, q.c., afterwards baron watson, advised me to take a long rest; but as he was not a doctor of medicine, i did not act upon his advice. a long rest would have killed me much faster than any amount of work, so i worked with judgment; and although my business went on increasing to an extent that would not have pleased dr. addison, i suffered no evil effects, but seemed to get through it with more ease than ever, and was soon in a fair way to achieve the greatest goal of human endeavour--a comfortable independence. the reason of getting through so much work was that i had to reject a great deal, and, of course, had my choice of the best, not only as to work, but as to clients. to use a sporting phrase, i got the best "mounts," and therefore was at the top of the record in wins. good cases are easy--they do not need winning; they will do their own work if you only leave them alone. bad cases require all your attention; they want much propping, and your only chance is that, if you cannot win, your opponent may _lose_. but nothing in the chatter about the bar is more erroneous than the talk of the tremendous incomes of counsel. a man is never estimated at his true worth in this world, certainly not a barrister, actor, physician, or writer; and as for incomes, no one can estimate his neighbour's except the income-tax commissioners. they get pretty near sometimes, however, without knowing it. one morning i was riding in the park when old sam lewis, the great money-lender, a man for whom i had much esteem, and about whom i will relate a little story presently, came alongside. we were on friendly and even familiar terms, although i never borrowed any money of him in my life. "why, mr. hawkins," said he, "you seem to be in almost everything. what a fortune you must be piling up!" "not so big as you might think," i replied. "why, how many," he rejoined, "are making as much as you? a good many are doing twenty thousand a year, i dare say, but--" here i checked his curiosity by asking if he had ever considered what twenty thousand a year meant. he never had. "then i will tell you, lewis. _you_ may make it in a day, but to us it means five hundred golden sovereigns every week in the working year!" it somewhat startled him, i could see, and it effected my object without giving offence. what did it matter to sam lewis what my income was? "there are men who make it," he answered. "some men have made it," i said; "and i know some who make more, but will never own to it, ask who may." i may say i liked sam lewis, and having told the story of the queen's counsel who _borrowed_ my money in so dishonest a manner, i will tell one of sam, the professional money-lender. he never was known to take advantage of a man in difficulties, and he never did, nor to charge any one exorbitant interest. i have known him lend to men and allow them to fix their own time of payment, their own rate of interest, and their own security. he often lent without any at all. he knew his men, and was not fool enough to trust a rogue at any amount of interest. he was known and respected by all ranks, and never more esteemed than by those who had had pecuniary transactions with him. he was the soul of honour, and his transactions were world-wide; business passed through his hands that would have been entrusted nowhere else; so that he was rich, and no one was more deservedly so. here is an incident in lewis's business life that will show one phase of his character. he held a number of bills, many of which were suspected by him to be forged--that is to say, that the figures had been altered after the signature of the acceptor had been written. they were all in the name of lord ----. one day lewis met his lordship in the park, and mentioned his suspicion, at the same time inviting him to call and examine the bills. the noble lord was a little amazed, and proceeded at once to lewis's office. seating himself on one side of the table with his lordship on the other, lewis handed to him the bills one by one and requested him to set aside those that were forged. the separation having been made, it appeared that over _twenty thousand-pounds' worth of the bills were forged_! the noble lord was a little startled at the discovery, but his mind was soon eased by lewis putting the whole of the forged bills into the fire. "there's an end of them, my lord," said he. "we want no prosecution, and i do not wish to receive payment from you. i ought to have examined them with more care, and you ought not to have left space enough before the first figure to supplement it by another. the rogue could not resist the temptation." so ended this monetary transaction, creditable alike to the honour and generosity of the money-lender. the most steady of minds will sometimes go on the tramp. this was never better illustrated than when the young curate was being married, and the officiating clergyman asked him the formal question, "wilt thou have this woman to thy wedded wife?" the poor bridegroom, losing self-control, and not having yet a better half to keep him straight, answered, "that is my desire," anticipating by a considerable period a totally different religious ceremony of the church--namely, the baptism of infants. in his anticipation the young man had overreached the necessities of the situation. this momentary digression leads me to the following story. i was staying at the house of an old friend, a wealthy hebrew, while another of the guests was arthur a'becket. as will sometimes happen when you are in good spirits, the conversation took a religious turn. we drifted into it unconsciously, and our worthy host was telling us that he was in the habit of praying night and morning. being in a communicative mood, i said, "well, since you name it, i sometimes say a little prayer myself." the hebrew was attentive, and seemed not a little surprised. "this is especially the case in the morning," i added. "but once upon a time my mind wavered a little between business and prayer, and i found myself in the midst of my devotional exercise saying, 'gentlemen of the jury.'" "thank god!" cried a'becket, "our friend hawkins is not a unitarian." i often wonder how i was able to get through the amount of business that pressed upon me and retain my health, but happily i did so. one great factor in my fortunate condition of health was, perhaps, that i had no ridiculous ambition. what was to come would come as the result of hard work, for i was born to no miraculous interpositions or official friendships. having dropped gambling, i set to work, and after a long spell of _nisi prius_, in all its phases, had engaged my attention, a new sphere of action presented itself in the shape of compensation cases--an easy and lucrative branch, which seemed to be added to, rather than have grown out of, our profession; but whatever was its connection, it was a prolific branch, hanging down with such good fruit that it required no tempter to make you taste it. railway, government, and municipal authorities were everywhere taking land for public improvements, and where they were, as a rule, my friend horace lloyd and myself were engaged in friendly rivalry as to the amount to be paid. chapter xviii. the prize-fight on frimley common. i must now describe a remarkable event that occurred a great many years ago, and which caused no little amusement at the time; indeed, for years after baron parke used to tell the story with the greatest pleasure. in those old days there was a prize-fight on frimley common, and it was known long after as the "frimley common prize-fight," although many a battle had taken place on frimley ridges before that time, and many a one since. this particular fight was the more celebrated because one of the combatants was killed, and i remember the events connected with it as clearly as if they had taken place only yesterday. at the following kingston assizes the victorious pugilist was indicted for manslaughter. it was an awful charge, especially before the judge who was then presiding. the man, however, escaped for the moment, and a warrant was issued for his apprehension. at a later period i was at guildford, where the assizes were being held. even at that time the man "wanted" for the manslaughter could be easily identified, for he still bore visible signs of the punishment he had undergone in the encounter. i was sitting in court one afternoon when a country sporting attorney of the name of morris quietly sidled up to me. i ought to mention that at these assizes lord chief justice erie was sitting, and it was well known that he also detested the prize ring, and had therefore, no sympathy with any of its members. he was consequently a dangerous judge to have anything to do with in a case of this kind. his punishment would be sure to be one of severity, and a conviction a dead certainty. there was a sparkle in the sporting solicitor's eye, as he glanced at me over his shoulder, which plainly intimated that he had something good to communicate. as he came in front of the seat where i was, he said, in a subdued whisper, that he had been instructed by lord ---- to defend the accused prize-fighter; that the man was at that moment in the town, and would like to have my opinion as to whether it would be prudent to surrender at these assizes--surrender, that is to say, to the constables who were on the lookout for him; or whether it would be better, as they were ignorant of his whereabouts, to delay his trial until the next assizes, when he would be better prepared to face the tribunal, as by that time he would have recovered from the punishment he had received. it is certain the jury would have taken his battered appearance as evidence of the damage he had inflicted on his adversary, whom he had unfortunately killed; and even more likely that erle should have regarded his injuries in the same light, and punished him more severely for having received them. i had a perfect right to answer the question put to me, and felt that it was my duty to the accused to answer frankly. so i said there was little doubt, as the man was dead, and the accused still bore unmistakable signs of the contest, there would be pretty clear evidence of identity; that as erle was not a fool, he would most certainly convict him; while, being opposed to everything connected with the "noble art of self-defence," he might send him to penal servitude for a number of years. i had no need to say more. the solicitor, who was a ready-witted and voluble man, was anxious to amalgamate his opinion with mine. he was shrewd, and caught an idea before you could be sure you had one yourself. "the most prudent thing, sir," he said, "would be to surrender at the next assizes, and not at these. that is just what i thought, sir, and so i told him, advising in the meantime that he should carefully avoid putting himself in the way of the police." i have no doubt he acted on this opinion, for i heard that he left the town immediately, and was neither seen nor heard of again till the eve of the spring assizes, which were to be held at kingston, and at which baron parke was to preside. the baron was one of the shrewdest of men, as any one would discover who attempted to deceive him. on the commission day the attorney for the accused presented himself to me again, and once more sought my opinion with regard to the trial and the surrender of the accused. "would it be proper," he asked, "for my client to show his respect for the court and dress in a becoming manner; or should he appear in his everyday clothes as a working bricklayer, dirty and unwashed?" again i advised, as was my duty, that he should scrupulously regard the dignity of the bench, and show the greatest respect to the learned judge who presided; that he ought not to come in a disgraceful costume if he could help it, but appear as becomingly attired as possible. that was all i said. let me also observe, what perhaps there is no occasion to say, that i impressed upon the attorney that his client should abstain from any appearance of attempting to deceive the judge, and informed him, as the fact was, that his lordship was scrupulously particular in all points of etiquette and decorum. moreover, i added as a last word, "the judge is too shrewd to be taken in." after thus duly impressing upon him the importance of a quiet behaviour, i suggested that any costume other than that of the man when actually engaged in the fight _might_ throw some difficulty in the way of a young and inexperienced country constable identifying him. it was never too late for even a bricklayer to mend his garments or his manners and adjust them to the occasion. the policeman who alone could identify the frimley champion had not seen him for many months--not since the fight, in fact; and the prisoner ought not to appear in the dock in fighting costume, as the young surrey constable saw him on that one occasion. moreover, baron parke would not like him to appear in that dress. this was, as nearly as i can remember, all that took place between us. judge, now, of my surprise, if you can, when the case was called on, to see the prisoner appear in the dock looking like a _young clergyman_, dressed in a complete suit of black, a long frock coat, fitting him up to the neck and very nearly down to the heels. he had the appearance of a very tame curate. his hair, instead of being short and stumpy, as when the young policeman saw him, was now long, shiny, and carefully brushed over both sides of his forehead, which gave him the appearance so fashionable amongst the saints of the old masters. i was utterly astounded at the change from the rude, rough bricklayer, scarred all over the face, to the clergyman-like appearance of this gentlemanly prisoner. i dared not laugh, but it was difficult to maintain my countenance. deceive baron parke! i thought; he would deceive the devil himself, who knew a great deal more about parsons than parke did. the learned judge looked at him for a considerable time, as though he had never seen a prize-fighter before, and was determined to make the most of him. if the ghost of hamlet had stood in the dock instead of the prisoner, he would not have surprised dear old parke more than the prisoner did. it was a masterpiece of deception, notwithstanding my serious warning. on the jury, it so happened, was an elderly quaker, in his full array of drab coat, vest, and breeches, with the regulation blue stockings. he had long whitish hair, and a quaker hat in front of him on the ledge of the jury-box. he was what might be called a "factor" in the situation, which it was no easy matter to know in a moment how to deal with. he would be against prize-fighting to a certainty, but how far he might be inclined to convict a prize-fighter was another matter. at last i made up my mind in what way to deal with him, and it was this--not on the merits of the noble art itself, but on those of the case. if i could convince this conscientious juror that there _might be_ (that would be good enough) a doubt as to identity, it would be sufficient for my purpose; so i mainly addressed myself to _him_, after disposing of the young policeman pretty satisfactorily, leaving only his bare belief to be dealt with in argument. the young policeman's belief that _that there_ was the man showed what a strong young policeman he was. i asked the quaker to allow me to suggest, for the sake of argument only, that _he_, the quaker, should imagine himself putting off his quaker dress, and assuming the costume of a prize-fighter, his hair cut so short that it would present the appearance of an aged rat; "then," said i, "divest yourself of your shirt and flannel--strip yourself, in fact, quite to the skin above your belt--and with only a pair of cotton drawers of a sky blue, or any other colour you might prefer, and, say, a bird's-eye _fogle_ round your waist, your lower limbs terminating in cotton socks and high-lows--with the additional ornamentation to all this elegant drapery of a couple of your front teeth knocked out--and i will venture to ask you, sir, and any one of the gentlemen whom i am addressing, whether you think your own good and respectable wife herself would recognize the partner of her joys?" the burst of laughter which this little transformation of the respectable, stout old quaker occasioned i was in no way responsible for; but even old parke fell back in his seat, and said,-- "mr. hawkins! mr. hawkins!" i knew what that meant, and when the usher, by dint of much clamour, secured me another hearing, i continued,-- "nay, sir, and if you looked at yourself in a looking-glass you would not be able to recognize a single feature you possessed, had you been battered about the face as the unfortunate man was. why, the young policeman says in his evidence his nose was flattened, his, eyes were swollen black, blue, and red, his cheeks gashed and bloody! but it is enough: if that is a correct description, although a mild one, of the man as he appeared after the scene of the conflict, how can you expect the young constable to recognize such an individual months afterwards, or any of the witnesses, although to their dying day they would not forget the terrible disfigurement of the poor fellow whom you are supposed to be trying?" all this time there was everywhere painfully suppressed laughter, and even the jury, all of them epsom men, and many of whom i knew well enough, were hardly able to contain themselves. his lordship, after summing up the case to the jury, looked down quietly to me, as i was sitting below him, and murmured,-- "hawkins, you've got all epsom with you!" "yes," i answered, "but you have got the quaker; he was the only one i was afraid of." "you have transformed him," said the judge. in a few minutes the verdict showed the accuracy of his lordship's observation, for the jury returned a verdict of "not guilty." i must say, however, that parke did his utmost to obtain a conviction, but reason and good sense were too much for him. chapter xix. sam warren, the author of "ten thousand a year." amongst the illustrious men whom i have met, the name of sam warren deserves remembrance, for he was a genial, good-natured man, full of humour, and generally entertained a good opinion of everybody, including himself. he not only achieved distinction in his profession and became a queen's counsel, but wrote a book which attained a well-deserved popularity, and was entitled "ten thousand a year." he was a member of the northern circuit, and i believe was as popular as his book. that he did not become a judge, like several of his friends, was not sam's fault, for no man went more into society, cultivated acquaintances of the best style, or had better qualifications for the honour than he. but although he did not achieve this distinction, he was made a little lower than that order, and became in due time a _master in lunacy_, a post, as it seemed from sam's description, of the highest importance and no little fun. a part of his duties was to visit lunatic asylums and other places where these patients were confined, with a view to report to the authorities his opinion of the patients' mental condition. no doubt to a man of sam's observant mind this work presented many studies of interest, as well as situations of excitement, and at times of no little humour. he found, for instance, that many of these poor creatures were possessed of a much larger income than ten thousand a year. some of them were dukes and some supernatural beings, who were just on a visit to this little clod of a world to see how things were going. soon after his appointment, and before he had become used to the work, he told me of a singular experience he once had with a particular gentleman whom he was intending to report as having perfectly recovered from any mental aberration with which he might have been afflicted. sam wondered how it was possible that a gentleman of such culture and understanding should be considered a fit subject for confinement, for he had several pleasant and intellectual conversations with him, and found him quite agreeable and refined, and of a perfectly balanced mind. "i had been told," said the master, "that the peculiar form of derangement with this gentleman was that he had aspired to distinction in the english church; and on one memorable occasion when i called he received me, not with the usual familiarity, but with a certain stiffness and solemnity of bearing which was hardly in keeping with his courteous demeanour on other occasions. one had to be on one's guard at all times, or he might get a knife plunged into him without notice. i chatted for some time in a kind and easy manner, hoping to find that the mild restraint and discipline had done the poor fellow good. alas! how deceived i was, when, in a sudden rage, he turned upon me, and asked _who the devil i thought i was talking to_?" "i told him a gentleman of a kind nature, i was sure, and of an amiable disposition. "'yes,' said he, 'but that is no reason why you should not treat me with proper deference and with due respect for my exalted position.' "i bowed politely, and expressed a hope that i should never forget what was due from one gentleman to another. "'no, no,' said he, 'that kind of excuse will not do. one gentleman to another, indeed! whom are you talking to? i insist on your treating me with reverence and respect. perhaps you do not know that i am _st. paul_?' "'indeed!' said i, 'i was not aware that i was speaking to that holy apostle, to one whom i hold in extreme reverence, and whose writings i have made my study.'" after that, it seems, they got on very well together for the rest of the interview. warren was able to delight him with his knowledge of cappadocia, phrygia, and pamphylia, and the little incident of leaving his cloak at troas, his shipwreck, and a vast number of things which the apostle seemed very pleased to hear, while he conducted himself with that pious dignity which well deserved the obsequious reverence of the official visitor. on parting, st. paul said,-- "you are rather _mixed in your scriptures_; the only thing you are accurate about is _leaving my cloak at troas_." on warren's next visit he resolved to conduct himself with more reverence. st. paul was looking much the same as on the previous occasion. sam genuflected, and held down his head, putting his hands devoutly together, and making such other manifestations of reverence as he thought the case required. st. paul looked at warren with wonderment, and was evidently by no means satisfied with his salutations. "who the devil," said the madman, "do you think you are making those idiotic signs to? whom do you take me for?" "st. paul, your holiness." "'st. paul, your holiness,' he repeated. 'my ----, you ought to be put into a lunatic asylum and looked after. you must be stark mad to think i am the holy apostle st. paul. what put that into your silly brains? down on your knees, villain, at once, and prostrate yourself before _the shah of persia_--the dawn of creation and the light of the universe!' "i thought this was coming it pretty strong," continued sam, "but as it was all in my day's work, i conformed as well as i could to my instructions. the difficulty was in knowing how to address his majesty, so i stammered, 'dread potentate!' and seeing it pleased him, 'light of the universe,' i cried, 'it is morning! may i rise?' "'i perceive,' said the shah, 'you are a genius,'" "what did you think of his state of mind after that?" i asked. sam laughed and answered: "i thought he was getting better, more rational, and thanked him for his good opinion. 'mighty potentate,' said i, 'monarch of the universe, i apologize for my mistake, but i was at _st. luke's_ yesterday,' "'my faithful luke!' said he, and clapped his hands. i knew once more where he was. "'the last time,' said i (thinking i would rather have him the amiable paul than the savage shah), 'your majesty informed me that you were the holy apostle st. paul!' "'so i am,' answered the shah. "'i am at a loss, your majesty, i humbly confess, to understand how your immortal highness can be at one and the same time the blessed apostle st. paul and the shah of persia,' "'because you are such a damned fool!' replied his highness. "here was the fierceness of the shah, but immediately the gentleness of the apostle restored him to a more amiable mood, and coming towards me with a smile, he said,-- "'the explanation, my dear sir, is simple;' and then, in a quiet, confidential tone, he added: '_it was the same mother, but two fathers_!'" "i had another experience not long after in the same asylum," continued warren. "one of my patients told me he had married the devil's daughter when i was asking him about his relations. 'she was a nice girl enough,' he said, 'and although my people thought i had married beneath me, i was satisfied with her rank, seeing she was a prince's daughter. we went off on our honeymoon in a chariot of fire which her father lent us for the occasion, and had a comfortable time of it at monte carlo, where all the hotels are under her father's special patronage.' "'i hope,' said i, 'your marriage was a happy one.' "'yes,' said he with a sigh, '_but we don't get on well with the old folks_!'" * * * * * no writer was ever more solicitous of fame than sam warren. it was a proud moment whenever there was the remotest allusion to his authorship, and i always loved to compliment him on his books. in the famous case of lord st. leonards's will, which had been lost, i supported the lost will, and proved its contents from the evidence of miss sugden and others. sam warren had been in the habit of visiting lord st. leonards at boyle farm, ditton. he gave evidence as to what lord st. leonards had told him respecting his intentions as to the disposal of his property. after examining him, i said with a polite bow: "mr. warren, i owe you an apology for bringing you into the probate court. i am sure no one will ever dream of disputing _your_ will, because you have left everybody '_ten thousand a year_!'" whereupon warren bowed most politely to me in acknowledgment of the compliment; then bowed to the _judge_, and received his lordship's bow in return; then bowed to the _jury_, then to the _bar_, and, lastly, to the _gallery_. writing of the probate and divorce court reminds me of a curious application for the postponement of a trial made by george brown, who was as good a humorist as he was a lawyer. i have said that judges in those days were more strict in refusing these applications than in ours, and cresswell was no exception to the rule. he disliked them, and rarely yielded. but brown was a man of a very persuasive manner, and it was always difficult to refuse him anything. i was sitting in cresswell's court when george rose as soon as the judge had taken his seat, and asked if a case might be postponed which would be in the next day's list. "have you an affidavit, mr. brown, as to the reason?" "yes, my lord; but i can hardly put the real ground of my application into the affidavit. i have communicated with the other side, and they are perfectly agreeable under the circumstances." "i cannot agree to postpone without some adequate cause being stated," said cresswell. "i am very sorry, my lord, but it will be very inconvenient to me to be here to-morrow." there was a laugh round the bar, which cresswell observing, asked what the real reason was. brown smiled and blushed; nothing would bring him to state plainly what the reason of his application was. at last, however, he stammered,-- "my lord, the fact is i am going to take the first step towards a divorce." the appeal touched the judge; the reason was sufficient. every step in a divorce was to be encouraged, especially the first. the application was granted, and brown was married the next day. chapter xx. the brighton card-sharping case. from the courts of justice to the prize-ring is an easy and sometimes pleasant transition, especially in books. i visited from time to time such well-known persons as "deaf burke," nat langham, "dutch sam," and owen swift, all remarkable men, with constitutions of iron, and made like perfect models of humanity. their names are unknown in these days, although in those of the long past gentlemen of the first position were proud of their acquaintance; and these men, although their profession was battering one another, were as little inclined to brutality as any. and when it is remembered that they played their game in accordance with strict rules and on the most scientific principles, it will be seen that cruelty formed no part of their character. the true sportsmen of the period, amongst whom were the highest in the social and political world, took the same interest in contests in the ring as they did on the turf or in the cricket-field, and for the same reason. whether jem mace would beat tom sayers had as much interest at fashionable dinner-tables as whether lord derby would dispose of aberdeen or palmerston. lords and dukes backed their opinion in thousands, and the bargee and the ostler gave or took the odds according to the tips, in shillings. the gentleman of the long robe, therefore, was not to be supposed as altogether out of his element in sporting circles any more than the gentleman who had not a rag to cover him. nor was it uncommon to meet what was called the cream of society at the celebrated rendezvous of ben caunt, which was the coach and horses, st. martin's lane, or at the less pretentious resort of the tipton slasher; and what will our modern ladies think of their fair predecessors, who in those days witnessed the drawing of a badger or a dog-fight on a sunday afternoon? all mankind will attend exhibitions of skill and prowess, and although prize-fights are illegal, you never can suppress the spirit which engendered that form of competition. i spent sometimes, with many eminent spectators, a quiet hour or two at tom spring's in holborn, and met many of the best men there in all ranks and professions, always excepting the church. after one of these entertainments i was travelling with john gully, once a formidable champion of the ring, and at that time a great bookmaker, as well as owner of racehorses--afterwards presented at court to her most gracious majesty the late queen--and member of parliament. we were travelling on our way to bath, and as we approached a tunnel not far from our destination, gully pointed out a particular spot "where," said he, "i won my first fight;" and so proud was he of the recollection that he might have been in a picture like that of wellington pointing out the field of waterloo to a young lady. this knowledge of the world, seen as i saw it, was of the greatest use in my profession. if you would know the world, you must not confine yourself to its virtues. there _is_ another side, and it is well to look at it. i thought on one particular occasion how useful a little of this knowledge would have been during a certain cross-examination of arthur orton in chancery by a member of the chancery bar. he put this question and many others of a similar kind,-- "do you swear, sir, that you were on board the _bella_?" in a very severe tone. "yes, sir," says the claimant, "i do." "stop," says the advocate; "i'll take that down;" and he did, with a great deal besides, his cross-examination materially assisting the man in prolonging his fraudulent claim. i was engaged in the brighton card-sharping case, upon which so much stress was laid by the claimant as proving his identity with roger tichborne, roger not having been in the matter at all. i was counsel for one of the persons, the notorious johnny broom, who was indicted for fraud, and whose trial ought to have come on before lord chief justice jervis. he was not a good judge, so far as the _defendant_ was concerned, to try such a case, and that being johnny's opinion, he absconded from his bail. the lord chief justice had a great knowledge of card-sharping and of all other rogueries, so that he was an apt man to deal with delinquents who practised them. conviction before him would have been certain in this case. he was, in fact, waiting for johnny, as it was a case of great roguery, and intended to deal severely with him. you may imagine, then, how angry he was when he heard that his man had flown. but there was one consolation: the broom gang consisted of a number of men who acted on all occasions as confederates when the frauds were practised. two of these rogues were also indicted, and placed on their trial at this assize. a mr. johnson appeared for the prosecution, and in opening the case for the crown, in order to show his uncommon fairness, was so impartial as to state that he could find no ground of complaint in respect of the _cards_, which, he said, had been most carefully examined by the brighton magistrates. who these brighton magistrates were i never heard, but probably they were gentlemen who knew nothing of sharpers and their ways, and whose only experience of cards was a quiet rubber with the ladies of their household. however, such was their unanimous opinion, and upon it the counsel for the crown informed the lord chief justice that he had no case so far as the fairness of the cards was concerned. the lord chief justice saw in a moment the importance of that admission on the part of the prosecution. if that were accepted the case was gone, since the fraud for which these men were indicted could not have been perpetrated by honest cards. "the brighton magistrates!" said the chief justice, with becoming emphasis. "give me the cards; i should like to have a look at them." they were handed up, and then a little scene took place which was picturesque and instructive. the judge took up the cards one by one after carefully wiping and adjusting his glasses to his nose, while his confidential clerk leant over his shoulder with clerk-like familiarity. having scrutinized them with the minutest observation, jervis packed them up, and, turning to mr. johnson, said,-- "mr. johnson, i will show you how the trick was done. if you will take that card"--handing him one from the pack "--you will see that to the ordinary eye there is nothing to attract your attention. that is precisely as it should be in all games of cheating, for if every fool could see the private marks the rogues could not carry on their calling." johnson took the card, and, instructed by the lord chief justice, carefully looked it over, but saw nothing. his face was a perfect blank, and his mind could not have been much more picturesque. "turn it over," said his lordship. johnson obeyed. still the cryptic hierograph did not appear. the judge stared at his pupil. "do you see," asked his lordship, "a tiny mark on the corner of the card at the back?" "oh, i see it!" says johnson, with a face beaming with delight and simplicity. "that means _the ace of diamonds_" said the chief--"ace of diamonds, mr. johnson!" and thus, after a while, the cards and their secret signs were explained to the counsel for the crown, who, on the intelligence of the brighton magistrates, declared that, so far as the _cards_ were concerned, he must acquit these card-sharping rogues of all intention to deceive. in all cases the back of the card showed what was on the face; that was the simple secret of the whole contrivance, although the brighton magistrates could not discover it, as the whole of them combined had not a hundredth part of the intelligent cuteness of lord chief justice jervis. two of this gang were standing near me, and i heard one of them say to the other,-- "joey, how would you like to play blind hookey with that ---- old devil?" "o my g----!" exclaimed joey. the prisoners were convicted principally upon the evidence of the lord chief justice, and sentenced to long terms of imprisonment. my client johnny got away. he read about jervis and this trial in the papers, and declared he would sooner abandon his profession than be tried by such an old thief. "why," said he, "that old bloke knows every trick on the board." his escape was rather interesting. he came into lewes fully intending to take his trial, and went out of lewes with the determination not to be tried at those assizes, for the simple reason, as he said, that jervis was too heavy weight for his counsel. he took a room and showed himself publicly; but at night the police--those stalwart county men--paid a tiptoe visit to his bedroom. they had no right to this privilege, but perhaps harry thought it would be better for his brother if they did so. why they went on tiptoe was that harry told them his brother was in so weak a state that he woke up with the least noise. the police very kindly believed him, and paid their first and second visit on tiptoe. when they went the third time, however, their bird had flown. johnny had let himself down by the window, and, evading the vigilance of those who may have been on the lookout, escaped. but he did not go without providing a substitute. harry was to answer all inquiries, and waited the arrival of his watchers, lying in johnny's bedroom. when the officers came he opened the door in his night apparel, and said, "hush! don't disturb him; poor johnny ain't slept hardly for a week over this 'ere job. but you can have a peep at him, only don't make a noise. there he is!" and he pointed to a fancy nightcap of his brother's, which only wanted johnny's head to make the story true. the good constables, having seen it as they saw it the night before, left the house as quietly as mice, still on tiptoe. harry described this performance to me himself. jervis had the whole country scoured for him, but unless he had scoured it himself, there was little chance of any one else finding the culprit. chapter xxi. the knebworth theatrical entertainments--sir edward bulwer--lytton--charles dickens, charles mathews, macready, douglas jerrold, and many others. among my pleasantest reminiscences were the partly amateur and partly professional entertainments that took place at the celebrated seat of the distinguished author, sir edward bulwer-lytton, about the year -. at that time a gentleman of position usually sought to enhance the family dignity by a seat in parliament. the most brilliant mediocrity even could not succeed without the patronage of the great families, while the great families were dependent upon those who had the franchise for the seats they coveted. forty-shilling freeholders were of some importance in those days; hence these theatrical performances at knebworth park, for sir edward wanted their suffrages without bribery or corruption. those who were the happy possessors of what they called the "frankise" were also distinguished enough, to be invited to the great performances at the candidate's beautiful estate. it was a happy thought to give a succession of dramatic entertainments, amongst which "every man in his humour" was one. sir edward knew his constituents and their tastes; it would be better than oratory at some village inn to ask them to the stately hall of knebworth, and give them one of our fine old english plays. i have already said that i had made up my mind in my earliest days to go to the bar or on the stage, and that love for the histrionic art (sometimes called the footlights) never left me. for some reason or other i was invited to join the illustrious company which assembled on those eventful evenings, although i was cast for a very humble part in the performance. nor is there much to wonder at when i tell you who my colleagues were. first comes that most distinguished comedian of his day, charles mathews. i had known him for many a year, and liked him the better, if that was possible, the longer i knew him. mathews was the leader of the company; next was another illustrious man whose name will live for ever, and who was not only one of the greatest authors of his time, but also the most distinguished of the non-professional actors. had he been on the stage, mathews himself could not have surpassed him. this was charles dickens. after him comes a great friend of sir edward, john foster, a barrister of lincoln's inn, and author of the "life of goldsmith," as well as editor of the _examiner_ newspaper. i am not quite sure whether macready was present on this particular occasion, but i think he was; there were really so many illustrious names that it is impossible at this distance of time to be sure of every one. macready was a great friend of bulwer, and with dickens and others was engaged in giving stage representations for charitable purposes in london and the provinces, so that it is at least possible i may be confounding knebworth with some other place where i was one of the company. amongst us also was another whose name will always command the admiration of his countrymen, douglas jerrold. there were also mark lemon, frank stone, and another royal academician, john leech, frederick dickens, radcliffe, eliot yorke, henry hale, and others whose names escape my memory at the present moment. no greater honour could be shown to a young barrister than to invite him to meet so distinguished a company, and what was even more gratifying to my vanity, asking me to act with them in the performance. there were many ladies, some of them of the greatest distinction, but without the leave of those who are their immediate relatives, which i have no time now to obtain, i forbear to mention their names in this work. the business--for business it was, as well as the greatest pleasure--was no little strain on my energies, for i was now obtaining a large amount of work, and appearing in court every day. i had the orthodox number of devils--at least seven--to assist me, and every morning they came and received the briefs they were to hold. alas! of the illustrious people i have mentioned all are dead, all save one lady and myself. when will such a company meet again? i was no sooner in the midst of knebworth's delightful associations than i was anxious to return to the toilsome duties of the law courts, with their prosaic pleadings and windbag eloquence. i was wanted in several consultations long before the courts met, so that it was idle to suppose i could stay the night at knebworth. but what would i have given to be able to do so? not my briefs! they were the business of my life, without which the knebworth pleasures would not have been possible. i never looked with any other feeling than that of pleasure on my work, and whenever the question arose i decided without hesitation in favour of the more profitable but less delightful occupation. but i managed a compromise now and then. for instance, after i had done my duty in the consultations, and seen my work fairly started in court, i contrived to take the train pretty early to knebworth, in order to attend rehearsals as well as perform in the evening. sir edward's good-nature caused him much distress at my having to journey to and fro. what _could_ he do? he offered me the sole use of his library during the time i was there if i could make it in any way helpful, and said it should be fitted up as a bedroom and study. but it was impossible to do other than i did. the rehearsals were nearly always going on--we had audiences as though they were _matinées_--and they afforded much amusement to us as well as the spectators when we made our corrections or abused one another for some egregious blunder. this, of course, did not include mathews, who coached us from an improvised royalty box, where he graciously acted as george iv., got up in a wonderful georgian costume for the occasion. george was so good that he diverted the attention of the audience from us, and made a wonderful hit in his new character. i will not say that at our regular performances we always won the admiration, but i will affirm that we certainly received the forbearance, of our audience, which says a great deal for them. this observation, however, does not, of course, apply to the professional artists, but only to myself, who, luckily, through all the business still kept my head. and it will be easily understood that this was the more difficult, especially if i may include my temper with it, when the good-natured baronet actually invited several of his hertford friends and neighbours to take part in the performances, some of them being friends of my own and members of my profession. so that at this electioneering time the whole of that division was alive with theatricals and "every man in his humour," which was exactly what sir edward wanted. it was an ordeal for some of us to rehearse with the celebrities of the stage, but i need not say their good-humour and delight in showing how this and that should be done, and how this and that should be spoken, was, i am sure, reciprocated by all the amateurs in studying the corrections. never were lessons more kindly given, or received with more pleasurable surprise. some could scarcely conceive how they could so blunder in accent and emphasis. however, most things require learning, even advocacy and acting. eliot yorke was stage-manager, and wrote a very excellent prologue. it must have been good, it was so heartily applauded, and the same may be said of all of us. i think radcliffe studied the part of old knowell, while i played young knowell. speaking after this interval of many years, i believe we were all word-perfect and pretty well conscious of our respective duties. charles dickens arranged our costumes, while nathan supplied them. he arranged me well. i was quite satisfied with my elizabethan ruff wound round my throat, but must confess that it was a little uncomfortable for the first three or four hours. my hose also gave me great satisfaction and some little annoyance. i thought if i could walk into court without changing my costume, what a sensation i should create! what would campbell or jervis say to _young knowell_? my father, as i have mentioned, lived at hitchin, about six miles from knebworth, and my professional duties calling me so early to town, i arranged to sleep at hitchin, and go to london by an early train in the morning. sir edward was much concerned at all this, and again wondered whether his library could not be appropriated. but the other was the only practicable plan, and was adopted. every day i was in court by nine o'clock, sometimes worked till five, then went by rail to stevenage and drove to knebworth, three miles. that was the routine. it was then time to put on my elizabethan ruff and hose. after the play i once more donned my private costume, and supped luxuriously at a round table, where all our splendid company were assembled. after supper some of us used to retire to douglas jerrold's room in one of the towers, and there we spent a jovial evening, prolonging the entertainment until the small hours of the morning. then my fly, which had been waiting a long time, enabled me to reach hitchin and get three hours' sleep. all this was hard work, but i was really strong, and in the best of health, so that i enjoyed the labour as well as the pleasure. one cannot now conceive how it was possible to go through so much without breaking down. i attribute it, however, to the attendant excitement, which braced me up, and have always found that excitement will enable you to exceed your normal strength. i had very many theatrical friends, all of them delightful in every way. amongst them wright and paul bedford. such companions as these are not to be met with twice, each with his individuality, while the two in combination were incomparable. they kept one in a perpetual state of laughter. paul was irresistible in his drollery, and whether it was mimicry or original humour, you could not but revel in its quaint conceits. such men are benefactors; they brighten the darkest hours of existence, turn sorrow into laughter, and enable men to forget their troubles and live a little while in the sunshine of humour. banish philosophy if you please, banish ambition if you must banish something, but leave us _humour_, the light of the social world. all who have experienced its beautiful influence can appreciate its value, and understand it as one of the choicest blessings conferred on our existence. the dullest company was enlivened when wright entered upon the scene. i remember paul being told one day at the garrick club that a certain poor barrister, who had been an actor, was going to marry the daughter of an old friend. "ah!" said he, "yes, he's _a lover without spangles_." who but paul would have thought of so grotesque a simile? and yet its applicability was simply due to the language of the stage. i remember robson, too, and his wonderful acting; he had no rival. nature had given him the talent which art had cultivated to the highest perfection. next come the keelys' impersonations of every phase of dramatic life--originals in acting, and actors of originals. but i must not linger over this portion of my story. it would occupy many pages, and time and space are limited; i therefore take my leave of one of the pleasantest chapters in my reminiscences. all, alas! have passed away--all i knew and loved, all who made that time so happy; and reluctantly as i say it, it must be said: "farewell, dear, grand old. knebworth, with all thy glories and all the glad faces and merry hearts i met within your walls--a long, long, farewell!" chapter xxii. crockford's--"the hooks and eyes"--douglas jerrold. "crockford's" has become a mere reminiscence, but worthy, in many respects, of being preserved as part of the history of london. it was historic in many of its associations as well as its incidents, and men who made history as well as those who wrote it met at crockford's. it was celebrated alike for high play and high company. as i never had a real passion for gambling, it was to me a place of great enjoyment, for there were some of the celebrated men of the day amongst its invited guests--wits, poets, novelists, playwrights, painters--in fact, all who had distinguished themselves in art or literature, law, science, or learning of any kind were always welcomed. it was as pleasant a lounge as any in london, not excepting tattersall's, which has equal claims on my memory. at crockford's i met captain h----, a wonderful gamester; he died early, but not too early for his welfare, seeing that all the chances of life are against the gambler. padwick, too, i knew; he entertained with refined and lavish hospitality. he was one of the winners in the game of life who did not die early. he told good stories and put much interest into them. he knew palmer, the rugeley poisoner--a sporting man of the first water, who poisoned john parsons cook for the sake of his winnings, and his wife and mother, it was said, for the sake of the insurance on their lives. padwick knew everybody's deeds and misdeeds who sought to increase his wealth on the turf or at the gaming-table. he was a just and honourable man, but without any sympathy for fools. others i could recall by the score, men of character and of no character. some i knew afterwards professionally, and especially one, who, although convicted of crime, escaped by collusion the sentence justly passed upon him. another was a man of position without character, whose evil habits destroyed the talent that would have made him famous. but i need not dwell on the manifold characters and scenes of crockford's. there has been nothing like it either in its origin or its subsequent history. there will never be anything like it in an age of refinement and laws, which have been wisely passed for the protection of fools. the founder of this fashionable gambling place was at one time a small fishmonger in either the strand or fleet street, i forget which, and lived there till he removed to st. james's street, where he became a fisher of men, but never in any other than an honourable way. "his palace of fortune" was of the grandest style of architectural beauty. it was one in which the worshippers of fortune planked down the last acre of their patrimonial estates to propitiate the fickle goddess in the allurements of the gaming-table. but how _can_ fortune herself give two to one on all comers? some _must_ lose to pay the winners. at this palatial abode the most sumptuous repasts were prepared by the most celebrated _chefs_ the world could produce, and were eaten by the most fastidious and expensive gourmands nature ever created; gamblers of the most distinguished and the most disreputable characters; gentlemen of the latest pattern and the oldest school, the worst of men and the best, sporting politicians and political sportsmen, place-hunters, ministers, ex-ministers, scions of old families and ancient pedigrees, as well as men of new families and no pedigrees, who purchased, as we do now, a coat of arms at the heralds' tailoring shop, and selected their ancestors in wardour street. only the wealthy could be members of this club, for only the wealthy could lose money and pay it. landscape painters might be guests, but it was only the man who belonged to the landscape who could belong to the body that gambled for it. young barristers might visit the place, possibly with an eye to business, but only members of large practice or judges could be members of this society. lord palmerston defended it manfully before the committee appointed really for its destruction. he said it did a great deal of good--much more good than all the gambling hells of london did harm. whether his lordship contended that there was no betting carried on at crockford's i am not prepared to say, but when evidence is given before parliamentary committees it is sometimes difficult to understand its exact meaning. palmerston, however, positively said, without any doubt as to his meaning, that candidates were not elected in order that they might be plucked of every feather they possessed, and that any one who maintained the contrary was slandering one of the most respectable clubs in london. some men would rather have pulled down st. paul's than crockford's. it was the very perfection of a club, said the statesman, and its principal game was chicken hazard. what could be stronger evidence than that of its usefulness and respectability? at this game they usually lost all they had, of little consequence to those who could not do better with their property, and perhaps the best thing for the country, because when it got into better hands it stood some chance of being applied to more legitimate purposes. after a while crockford quarrelled with his partner, and they separated. whatever men may say in these days against an institution which flourished in those, ex-prime ministers, dukes, earls, and ex-lord chancellors, as well as future ministers of state and future judges, belonged to it, or sought eagerly for admission to its membership. to be under the shadow of the fishmonger was greatness itself. at the mention of the name of crockford's a procession of the greatest men of the day passes before my eyes; their name would be legion as to numbers, but an army of devoted patriots i should call them in every other sense, for they were english to the backbone, whether gamblers or saints. of course there were some amongst them, as in every large body of men, who were not so desirable to know as you could wish; but they were easy to avoid and at all times an interesting study. there were wise men and self-deluded fools, manly, well-bred men, and effeminate, conceited coxcombs, who wore stays and did up their back hair, used paint, and daubed their cheeks with violet powder. these men, while they had it, planked down their money with the longest possible odds against them. there was one who was the very opposite to these in the person of old squire osbaldistone. true, he had squandered more money than any one had ever seen outside the bank of england, but he had done it like a gentleman and not like a fool. a real grand man was the old squire, and i enjoyed many a walk with him over newmarket heath, listening to his amusing anecdotes, his delightful humour and brilliant wit. his manner was so buoyant that no one could have believed he had spent hundreds of thousands of pounds, but he had, without compunction or regret. the novelist and the painter could artistically describe squire osbaldistone. i can only say he was a "fine old english gentleman, one of the olden time." it was in a billiard-room at leamington where i first met him, and as he was as indifferent a player as you could meet, he thought himself one of the best that ever handled a cue. i neither played chicken hazard nor any other game, but enjoyed myself in seeing others play, and in picking up crumbs of knowledge which i made good use of in my profession. the institution was not established for the benefit of science or literature, except that kind of literature which goes by the name of bookmaking. its founder was a veritable dunce, but he was the cleverest of bookmakers, and made more by it in one night than all the authors of that day in their lives. one hundred thousand pounds in one night was not bad evidence of his calculation of chances and his general knowledge of mankind. to be a member of this club, wealth was not the only qualification, because in time you would lose it; you had to be well born or distinguished in some other way. the fishmonger knew a good salmon by its appearance; he had also a keen respect for the man who had ancestors and ancestral estates. i ought not to omit to mention another celebrated bookie of that day; he was second only to crockford himself, and was called "the librarian." he was also known as "billy sims." billy lived in st. james's street, in a house which has long since been demolished, and thither people resorted to enjoy the idle, witty, and often scandalous gossip of the time. it was as easy to lose your reputation there as your money at crockford's, and far more difficult to keep it. the only really innocent conversation was when a man talked about himself. from that popular gossiping establishment i heard a little story told by the son of sydney smith. his father had been sent for to see an old lady who was one of his most troublesome parishioners. she was dying. sad to say, she had always been querulous and quarrelsome. it may have been constitutional, but whatever the cause, her husband had had an uncomfortable time with her. when sydney smith reached the house the old lady was dead, and the bereaved widower, a religious man in his way, and acquainted with scripture, said,-- "ah, sir, you are too late: my poor dear wife has gone to _abraham's bosom_." "poor abraham!" exclaimed sydney; "she'll tear his inside out." as all these things pass through my memory, i recall another little incident with much satisfaction, because i was retained in the case. it was a scandalous fraud in connection with the gaming-table. an action was brought by a cheat against a gentleman who was said to have lost £ , on the cast of the dice. i was the counsel opposed to plaintiff, who was said to have cheated by means of _loaded dice_. i won the case, and it was generally believed that the action was the cause of the appointment of the "gaming committee," at which tribunal all the rascality of the gaming-tables was called to give evidence, and the witnesses did so in such a manner as to shock the conscience of the civilized world, which is never conscious of anything until exposure takes place in a court of law or in some other legal inquiry. diabolical revelations were brought to light. however, as i have said, lord palmerston effectually cleared crockford's, and it almost seemed, from the evidence of those who knew crockford's best, that they never played anything there but old-fashioned whist for threepenny points, patience, and beggar-my-neighbour. his royal highness the then prince of wales came into court during the trial i refer to, and seemed interested in the proceedings. i wonder if his majesty now remembers it! in those days baron martin and i met once a year, he on the bench and i in court, with a hansom cab waiting outside ready to start for the derby. it is necessary for judges to sit on derby day, to show that they do not go; but if by some accident the work of the court is finished in time to get down to epsom, those who love an afternoon in the country sometimes go in the direction of the downs. there is usually a run on the list on that day. there was another club to which i belonged in those old days, called "the hooks and eyes," where i met for the last time poor douglas jerrold. he was one of the eyes, and always on the lookout for a good thing, or the opportunity of saying one. he was certainly, in my opinion, the wittiest man of his day. but at times his wit was more hurtful than amusing. wit should never leave a sting. he was sometimes hard on those who were the objects of his personal dislike. of these sir charles taylor was one. he was not a welcome member of the hooks and eyes, and jerrold knew it. there was really no reason why sir charles should not have been liked, except perhaps that he was dull and prosaic; rather simple than dull, perhaps, for he was always ready to laugh with the rest of us, whether he understood the joke or not. and what could the most brilliant do beyond that? sir charles was fond of music. he mentioned in jerrold's company on one occasion "that 'the last rose of summer' so affected him that it quite carried him away." "can any one hum it?" asked jerrold. chapter xxiii. alderson, tomkins, and a free country--a problem in human nature. alderson was a very excellent man and a good judge. i liked him, and could always deal with him on a level footing. he was quaint and original, and never led away by a false philanthropy or a sickly sentimentalism. appealed to on behalf of a man who had a wife and large family, and had been convicted of robbing his neighbours, "true," said alderson--"very true, it is a free country. nothing can be more proper than that a man should have a wife and a large family; it is his due--as many children as circumstances will permit. but, tomkins, you have no right, even in a free country, to steal your neighbour's property to support them!" i liked him where there was a weak case on the other side; he was particularly good on those occasions. in the assize court at chelmsford a barrister who had a great criminal practice was retained to defend a man for stealing sheep, a very serious offence in those days--one where anything less than transportation would be considered excessive leniency. the principal evidence against the man was that the bones of the deceased animal were found in his garden, which was urged by the prosecuting counsel as somewhat strong proof of guilt, but not conclusive. it must have struck everybody who has watched criminal proceedings that the person a prisoner has most to fear when he is tried is too often his own counsel, who may not be qualified by nature's certificate of capacity to defend. however, be that as it may, in this case there was no evidence against the prisoner, unless his counsel made it so. "counsel for the defence" in those days was a wrong description--he was called the _friend_ of the prisoner; and i should conclude, from what i have seen of this relationship, that the adage "save me from my friends" originated in this connection. the friend of this prisoner, instead of insisting that there was no evidence, since no one could swear to the sheep bones when no man had ever seen them, endeavoured to explain away the cause of death, and thus, by a foolish concession, admitted their actual identity. it was not alderson's duty to defend the prisoner against his own admission, although, but for that, he would have pointed out to the crown how absolutely illogical their proposition was in law. but the "friend" of the prisoner suggested that sheep often put their heads through gaps or breakages in the hurdles, and rubbed their necks against the projecting points of the broken bars; and that being so, why should the jury not come to a verdict in favour of the prisoner on that ground? it was quite possible that the constant rubbing would ultimately cut the sheep's throat. if it did not, the prisoner submitted to the same operation at the hand of his "friend." "yes," said baron alderson, "that is a very plausible suggestion to start with; but having commenced your line of defence on that ground, you must continue it, and carry it to the finish; and to do this you must show that not only did this sheep in a moment of temporary insanity--as i suppose you would allege in order to screen it--commit suicide, but that it skinned itself and then buried its body, or what, was left of it after giving a portion to the prisoner to eat, in the prisoner's garden, and covered itself up in its own grave. you must go as far as that to make a complete defence of it. i don't say the jury may not believe you; we shall see. gentlemen, what do you say--is the sheep or the prisoner guilty?" the sheep was instantly acquitted. there was another display of forensic ingenuity by the same counsel in the next case, where he was once again the "friend" of the prisoner. a man was charged with stealing a number of gold and silver coins which had been buried a few hours previously under the foundation-stone of a new public edifice. the prisoner was one of the workmen, and had seen them deposited for the historical curiosity of future ages. antiquity, of course, would be the essence of the value of the coins, except to the thief. the royal hand had covered them with the stone, duly tapped by the silver trowel amidst the hurrahs of the loyal populace, in which the prisoner heartily joined. but in the night he stole forth, and then stole the coins. they were found at his cottage secreted in a very private locality, as though his conscience smote him or his fear sought to prevent discovery. his legal friend, however, driven from the mere outwork of facts, had taken refuge in the citadel of law; he was equal to the occasion. alas! alderson knew the way into this impregnable retreat. counsel suggested that it was never intended by those who placed the coins where they were found that they should remain there till the end of time; they were intended, said he, to be taken away by somebody, but by whom was not indicated by the depositors, and as no time or person was mentioned, they must belong to the first finder. it was all a mere chance as to the time of their resurrection. further, it was certain they were not intended to be taken by their owners who had placed them there--they never expected to see them again--but by any one who happened to come upon them. those who deposited them where they were found parted not only with the possession, but with all claims of ownership. nor could any one representing him make any claim. all this was excellent reasoning as far as it went, and the only thing the prosecution alleged by way of answer was that they were intended to be brought to light as antiquities. "very well," said the prisoner's counsel; "then there is no felonious intent in that case--it is merely a mistake. antiquity came too soon." and so did the conviction. i was instructed, with the hon. george denman, son of my old friend, whom i have so often mentioned, to defend three persons at the maidstone assizes for a cruel murder. mr. justice wightman was the judge, and there was not a better judge of evidence than he, or of law either. the prisoners were father, mother, and son, and the deceased was a poor servant girl who had been engaged to be married to another son of the male prisoner and his wife. the unfortunate girl had left her service at gravesend, and gone to this family on a visit. the prisoners, there could be no doubt, were open to the gravest suspicion, but how far each was concerned with the actual murder was uncertain, and possibly could never be proved. the night before the trial the attorney who acted for the accused persons called on me, and asked this extraordinary question,-- "could you secure the acquittal of the father and the son if the woman will plead guilty?" it is impossible to conceive the amount of resolution and self-sacrifice involved in this attempt to save the life of her husband and son. it was too startling a proposal to listen to. i could advise no client to plead guilty to wilful murder. it was so extraordinary a proposition, look at it from whatever point i might, that it was perfectly impossible to advise such a course. i asked him if the woman knew what she was doing, and that if she pleaded guilty certain death would follow. "oh yes," said he; "she is quite prepared." "the murder," i said, "is one of the worst that can be conceived--cruel and fiendish." he agreed, but persisted that she was perfectly willing to sacrifice her own life if her husband and son could be saved. this woman, so full of feeling for her own family, had thought so little of that of others that she had held down the poor servant girl in bed while her son strangled her. "if," said i, "she were to plead guilty, the great probability is that the jury would believe they were all guilty--very probably they are; and most certainly in that case they would all be hanged." i therefore strongly advised that the woman should stand her trial "with the others," which she did. in the end they all _got off_! the evidence not being sufficiently clear against any. it was a strange mingling of evil and good in one breast--of diabolical cruelty and noble self-sacrifice. i leave others to work out this problem of human nature. chapter xxiv. charles mathews--a harvest festival at the village church. the sporting world has no greater claim on my memory than the theatrical or the artistic. i recall them with a vividness that brings back all the enjoyments of long and sincere friendships. for instance, one evening i was in charles mathews's dressing-room at the theatre and enjoying a little chat when he was "called." "come along," said he; "come along." why he should "call" me to come along i never knew. i had no part in the piece at that moment. but he soon gave me one. i followed, with lingering steps and slow, having no knowledge of the construction of the premises; but in a moment mathews had disappeared, and i found myself in the middle of the stage, with a crowded house in front of me. the whole audience burst into an uproar of laughter. i suppose it was the incompatibility of my appearance at that juncture which made me "take" so well; but it brought down the house, and if the curtain had fallen at that moment, i should have been a great success, and mathews would have been out of it. in the midst of my discomfiture, however, he came on to the stage by another entrance as "cool as a cucumber." he told me afterwards that he had turned the incident to good account by referring to me as "every man in his humour," or, "a bailiff in distressing circumstances!" i was visiting the country house of a respectable old solicitor, who was instructing me in a "compensation case" which was to be heard at wakefield. "i don't know, mr. hawkins," said he on sunday morning, "whether you would like to see our little church?" "no, thank you," i answered; "we can have a look at it to-morrow when we have a 'view of the premises.'" "i thought, perhaps," said mr. goodman, "you might like to attend the service." "no," said i, "not particularly; a walk under the 'broad canopy' is preferable on a beautiful morning like this to a poky little pew; and i like the singing of the birds better than the humming of a clergyman's nose. "very well," he said; "we will, if you like, take a little walk." with surprising innocence he inflicted upon me a pious fraud, leading me over fields and meadows, stiles and rustic bridges, until at last the cunning old fox brought me out along a by-path and over a plank bridge right into the village. then turning a corner near a picturesque farmhouse, he smilingly observed, "this is our church." "it's a very old one, and looks much more picturesque in the distance. shall we have a view a little farther off?" "st. mary's," said he; " is the date--" "st. mary's?" said i. "fancy! and what is the date-- ?" "it has some fine tablets, mr. hawkins, if you'd like to look in--" "i don't care for tablets," i answered; "if i go to church it is not to stare at tablets." at last my host summed up courage to say,-- "mr. hawkins, this is our little harvest festival of thanksgiving, and i should not like to be absent." "why on earth, mr. goodman," i answered, "did you not say that before? let us go in by all means. i like a good harvest as well as any christian on earth." the pew was the family pew--the _whole family pew_, and nothing but the family pew; bought with the estate, with the family estate; and was in an excellent situation for the congregation to have a fine view of mr. goodman. indeed, his cheery face could be seen by everybody in church. i must say the little edifice looked very nice, and had been adorned with the most artistic taste by the young ladies of the vicarage and the hall. mr. goodman was "the hall." there were bunches of neatly-arranged turnips and carrots, with potatoes, barley, oats, and mangel-wurzel, and almost every variety of fruit from the little village; and every girl had barley and wheat-ears in her straw hat. it was an affecting sight, calculated to make any one adore the young ladies and long for dinner. the sermon was an excellent one so far as i could pronounce an opinion, but would have been considerably improved had it been three-quarters of an hour shorter. it contained, however, the usual allusions to harvest-homes, gathering into barns, and laying up treasures; which last observation reminded mr. goodman that he had _left his purse at home_, and had come away without any money. i saw him fumbling in his pocket. now, thought i, the time has come for showing my devotion to mr. goodman. as soon, therefore, as he had whispered to me, i handed him all i had, which consisted of a five-pound note. he gratefully took it, and although about five times as much as _he_ intended to give, when the bag was handed to him in went the five-pound note. i knew my friend was chuckling as soon as we got into his family pew at the way in which he had lured me step by step, till we walked the last plank over the ditch, so i was not sorry to return good for evil and lend him my note. he stared somewhat sideways at me when the bag passed, but i bore it with fortitude. i took particular notice that the crimson bag passed along the front of our family pew at a very dilatory pace, and tarried a good deal, as if reluctant to leave it. to and fro it passed in front of my nose as if it contained something i should like to smell, and at last moved away altogether. i was glad of that, because it prevented my following the words of the hymn in my book, and, unfortunately, it was one of those harvest hymns i did not know by heart. on our way home over the meadows, where the grasshoppers were practising for the next day's sports, and were in high glee over this harvest festival, mr. goodman seemed fidgety; whether conscience-stricken for the sabbath fraud he had practised upon me or not, i could not say, but at last he asked how i liked their little service. i said it was quite large enough. "you"--he paused--"you did not, i think"--another pause--"contribute to our little gathering?" "no," i said, "but it was not my fault; i lent you all i had. the fund, however, will not suffer in the least, and you have the satisfaction of having contributed the whole of our joint pocket-money. it does not matter who the giver is so long as the fund obtains it." i then diverted his mind with a story or two. cockburn, i said, was sitting next to thesiger during a trial before campbell, chief justice, in which the judge read some french documents, and, being a scotsman, it attracted a good deal of attention. cockburn, who was a good french scholar, was much annoyed at the chief justice's pronunciation of the french language. "he is murdering it," said he--"_murdering_ it!" "no, my dear cockburn," answered thesiger, "he is not killing it, only scotching it." sir alexander was at a little shooting-party with bethell and his son, one of whom shot the gamekeeper. the father accused the son of the misadventure, while the son returned the compliment. cockburn, after some little time, asked the gamekeeper what was the real truth of the unfortunate incident--who was the gentleman who had inflicted the injury? the gamekeeper, still smarting from his wounds, and forgetting the respect due to the questioner, answered,-- "o sir alexander--d--n 'em, it was _both_!" a remark made by lord young, the scotch judge, one of the wittiest men who ever adorned the bar, and who is a bencher of the middle temple, struck me as particularly happy. there was a conversation about the admission of solicitors to the roll, and the long time it took before they were eligible to pass from their stage of pupilage to that of solicitor, amounting, i think, to seven years; upon which lord young said, "_nemo repente fuit turpissimus_." chapter xxv. compensation--nice calculations in old days--experts--lloyd and i. as my business continued to increase, it took me more and more from the ordinary _nisi prius_, and kept me perpetually employed in special matters. i had a great many compensation cases, where houses, lands, and businesses had been taken for public or company purposes. they were interesting and by no means difficult, the great difficulty being to get the true value when you had, as i have known, a hundred thousand pounds asked on one side and ten thousand offered on the other. railway companies were especially plundered in the exorbitant valuation of lands, and therefore an advocate who could check the valuers by cross-examination was sought after. juries were always liable to be imposed upon, and generally gave liberal compensation, altogether apart from the market value. experts, such as land agents and surveyors, were always in request, and indeed these experts in value caused the most extravagant amounts to be awarded. even the mean sum between highest and lowest was a monstrously unfair guide, for one old expert used to instruct his pupils that the only true principle in estimating value was to ask at least twice as much as the business or other property was worth, because, he said, the other side will be sure to try and cut you down one-half, and then probably offer to split the difference. if you accept that, you will of course get one-quarter more than you could by stating what you really wanted. no one could deal with the real value, because there was no such thing known in the compensation court. on one occasion i was travelling north in connection with one of these cases, retained, as usual, on behalf of a railway company. in my judgment the claim would have been handsomely met by an award of £ , , and that sum we were prepared to give. on my way i observed in my carriage a gentleman who was very busy in making calculations on slips of paper, and every now and again mentioning the figures at which he had arrived--repeating them to himself. when we got to a station he threw away his paper, after tearing it up, and when we started commenced again, but at every stoppage on our journey he increased his amount. after we had travelled miles, the property he was valuing had attained the handsome figure of £ , . he evidently had not observed me. i was very quiet, and well wrapped up. the next day, when he stepped into the witness-box he had not the least idea that i had been his fellow-traveller of the previous night. he was not very sharp except in the matter of figures; but his opinion, like that of all experts, was invincible. his name was bunce. "when did you view this property, mr. bunce? i understand you come from london." "i saw it this morning, sir." "did you make any calculation as to its value _before_ you saw it?" this puzzled him, and he stared at me. it was a hard stare, but i held out. he said, "no." "not when you were travelling? did it not pass through your mind when you were in the train, for instance--'i wonder, now, what that property is worth?'" "i dare say it did, sir." "but don't _dare say_ anything unless it's true." "i did, then, run it over in my mind." "and i dare say you made notes and can produce them. did you make notes?" after a while i said, "i see you did. you may as well let me have them." "i tore them up." "why? what became of the pieces?" "i threw them away." "do you remember what price you had arrived at when you reached peterborough, for instance?" the expert thought i was some one whom we never mention except when in a bad temper, and he was more and more puzzled when he found that at every stoppage i knew how much his price had increased. as the case was tried by an arbitrator and not a jury, my task was easy, arbitrators not being so likely to be befooled as the other form of tribunal. this arbitrator, especially, knew the elasticity of an expert's opinion, and therefore i was not alarmed for my client. the amount was soon arrived at by reducing the sum claimed by no less than £ , . thus vanished the visionary claim and the expert. he evidently had not been trained by the cunning old surveyor whose experience taught him to be moderate, and ask only twice as much as you ought to get. in another claim, which was no less than £ , , the jury gave £ . this was a state of things that had to be stopped, and it could only be accomplished at that time by counsel who appeared on behalf of the companies. sir henry hunt was one of the best of arbitrators, and it was difficult to deceive him. it took a clever expert to convince him that a piece of land whose actual value would be £ was worth £ , . sir henry once paid me a compliment--of course, i was not present. "hawkins," said he, "is the very best advocate of the day, and, strange to say, his initials are the same as mine. you may turn them upside down and they will still stand on their legs" (h.h.). sir henry was sometimes a witness, and as such always dangerous to the side against whom he was called, because he was a judge of value and a man of honour. one instance in which i took a somewhat novel course in demolishing a fictitious claim is, perhaps, worth while to relate, although so many years have passed since it occurred. it was so far back as the time of the old hungerford market, which the railway company was taking for their present charing cross terminus. the question was as to the value of a business for the sale of medical appliances. mr. lloyd, as usual, was for the business, while i appeared for the company. my excellent friend proceeded on the good old lines of compensation advocacy with the same comfortable routine that one plays the old family rubber of threepenny points. i occasionally finessed, however, and put my opponent off his play. he held good hands, but if i had an occasionally bad one, i sometimes managed to save the odd trick. lloyd had expatiated on the value of the situation, the highroad between waterloo station and the strand, immense traffic and grand frontage. to prove all this he called a multitude of witnesses, who kissed the same book and swore the same thing almost in the same words. but to his great surprise i did not cross-examine. lloyd was bewildered, and said i had admitted the value by not cross-examining, and he should not call any more witnesses. i then addressed the jury, and said, "a multitude of witnesses may prove anything they like, but my friend has started with an entirely erroneous view of the situation. the compensation for disturbance of a business must depend a great deal on the nature of the business. if you can carry it on elsewhere with the same facility and profit, the compensation you are entitled to is very little. i will illustrate my meaning. let us suppose that in this thoroughfare there is a good public-house--for such a business it would indeed be an excellent situation; you may easily imagine a couple of burly farmers coming up from farnham or windlesham to the cattle show, and walking over the bridge, hot and thirsty. 'hallo!' says one; 'i say, jim, here's a nice public; what d'ye say to goin' in and havin' a glass o' bitter? it's a goodish pull over this 'ere bridge." "'with all my heart,' says jim; and in they go. "there you see the advantage of being on the highroad. but now, let us see these two stalwart farmers coming along, and--instead of the handsome public and the bitter ale there is this shop, where they sell medical arrangements--can you imagine one of them saying to the other, 'i say, jim, here's a very nice medical shop; what d'ye say to going in and having a truss?'" the argument considerably reduced the compensation, but what it lacked in money the claimant got in laughter. sometimes i led a witness who was an expert valuer for a claimant to such a gross exaggeration of the value of a business as to stamp the claim with fraud, and so destroy his evidence altogether. sir henry hunt used to nod with apparent approval at every piece of evidence which showed any kind of exaggeration, but every nod was worth, as a rule, a handsome reduction to the other side. i shall never forget an attorney's face who, having been offered £ , for a property, stood out for £ , . it was a claim by a poulterers' company for eight houses that were taken by a railway company. i relied entirely on my speech, as i often did, because the threadbare cross-examinations were almost, by this time, things of course, as were the figures themselves mere results of true calculations on false bases. this attorney, who had, perhaps, never had a compensation case before, was quite a great man, and took the arbitrator's assenting nods as so much cash down. so encouraged, indeed, was he that he became almost impudent to me, and gave me no little annoyance by his impertinent asides. at last i looked at him good-humouredly, and politely requested him, as though he were the court itself, to suspend his judgment while i had the honour of addressing the arbitrator for twenty minutes, "at the end of which time i promise to make you, sir," said i, "the most miserable man in existence." i was supported in this appeal by the arbitrator, who hoped he would not interrupt mr. hawkins. as i proceeded the attorney fidgeted, puffed out his cheeks, blew out his breath, twirled his thumbs as i twirled his figures, and grated his teeth as he looked at me sideways, while i concluded a little peroration i had got up for him, which was merely to this effect, that if railway companies yielded to such extortionate demands as were made by this attorney on behalf of the poulterers' company, they would not leave their shareholders a feather to fly with. the attorney looked very much like moulting himself, and the end of it was that he got _two thousand pounds_ less than we had offered him in the morning, and consequently had to pay all the costs. as i have stated, john horatio lloyd was my principal opponent in these great public works cases, and i remember him with every feeling of respect. he was an advocate whom no opponent could treat lightly, and was uniformly kind and agreeable. of course i had a very large experience in those times--i suppose, without vanity, i may say the very largest. i was retained to assess compensation for the immense blocks of buildings acquired for the space now occupied by the law courts. in the very early cases the law. officers of the crown were concerned, but after that the whole of the business was entrusted to my care, although for reasons best known to themselves the commissioners declined to send me a general retainer, which would have been one small sum for the whole, but gave instead a special retainer on every case. if my memory serves me, on one occasion i had ninety-four of these special retainers delivered at my chambers. this was in consequence of their refusing to retain me generally for the whole, which would have been a nominal fee of five guineas. chapter xxvi. election petitions. another class of work which gave me much pleasure and interest was that of election petitions. these came in such abundance that i had to put on, as i thought, a prohibitory fee, which in reality increased the volume of my labour. one day baron martin asked me if i was coming to such and such an election petition. "no," i answered, "no; i have put a prohibitory fee on my services; i can't be bothered with election petitions." "how much have you put on?" "five hundred guineas, and two hundred a day." the baron laughed heartily. "a prohibitory fee! they must have you, hawkins--they must have you. put on what you like; make it high enough, and they'll have you all the more." and i did. it turned out a very lucrative branch of my business, and my electioneering expenses were a good investment. my experience at barnstaple, to be told hereafter, repaid the outlay, and no feature of an election ever came before me but i recognized a family likeness. amongst the earliest was that of w.h. smith, who had been returned for westminster. the petitioner endeavoured to unseat him on the ground of bribery, alleged to have been committed in paying large sums of money for exhibiting placards on behalf of the candidate. it was tried before baron martin. about the payments there was no element of extravagance, but there were undoubtedly many cases of payment, and these were alleged to be illegal. ballantine was my junior. one of the curious matters in the case was that these payments had been principally made by, or under, the advice of my old friend, whom i cannot mention too often, the hon. robert grimston. ballantine, as i thought, most injudiciously advised me not to call "that old fool;" but believing in grimston, and having charge of the case, i resolved to call him. baron martin knew grimston as well as i did, and believed in him as much. "who is this?" asked the judge. "another bill-sticker, my lord." grimston gave his evidence, and was severely cross-examined by my friend, j. fitzjames stephen. he fully and satisfactorily explained every one of the questioned items, evidently to the satisfaction of martin, who dismissed the petition, and thus mr. smith retained his seat. the learned judge said, in giving judgment, that without grimston's evidence the seat would have been in great danger, but that he had put an innocent colour on the whole case, and that, knowing him to be an honourable man and incapable of saying anything but the truth, he had implicitly trusted to every word he spoke. mr. smith, whom i met some days after, said he was perfectly assured that if i had not had the conduct of the case, and grimston had not been called, his seat would have been lost. in the petition against sir george elliot for durham there was nothing of any importance in the case, except that sir george gave a very interesting history of his life. he had been a poor boy who had worked in the cutting of the pit, lying on his back and picking out from the roof overhead the coal which was shovelled into the truck. from this humble position literally and socially he had proceeded, first to his feet, and then step by step, until, from one grade to another, he had amassed a large fortune, and sufficient income to enable him to incur, not only the expenses of an election and a seat in parliament, but also those of a bitterly hostile election petition, enormously extravagant in every way. i succeeded in winning his case, and never was more proud of a victory. it had lasted many days. there is one matter almost of a historical character, which i mention in order to do all the justice in my power to a man who, although deserving of reprobation, is also entitled to admiration for the chivalry of his true nature. i speak of it with some hesitation, and therefore without the name. those who are interested in his memory will know to whom i allude, and possibly be grateful for the tribute to his character, however much it may have been sullied by his temporary absence of manly discretion. he was charged with assaulting a young lady in a railway train between aldershot and waterloo. there was much of the melodramatic in the incidents, and much of the righteous indignation of the public before trial. there was judgment and condemnation in every virtuous mind. the assault alleged was doubtless of a most serious character, if proved. i say nothing of what might have been proved or not proved; but, speaking as an advocate, i will not hesitate to affirm that cross-examination may sometimes save one person's character without in the least affecting that of another. but this was not to be. whatever line of defence my experience might have suggested, i was debarred by his express command from putting a single question. i say to his honour that, as a gentleman and a british officer, he preferred to take to himself the ruin of his own character, the forfeiture of his commission in the army, the loss of social status, and _all_ that could make life worth having, to casting even a doubt on the lady's veracity in the witness-box. my instructions crippled me, but i obeyed my client, of course, implicitly in the letter and the spirit, even though to some extent he may have entailed upon himself more ignominy and greater severity of punishment than i felt he deserved. he died in egypt, never having been reinstated in the british army. i knew but little of him until this catastrophe occurred; but the manliness of his defence showed him to be naturally a man of honour, who, having been guilty of serious misconduct, did all he could to amend the wrong he had done; and so he won my sympathy in his sad misfortune and misery. in the days when burglary was punished with death, there was very seldom any remission, i was in court one day at guildford, when a respectably-dressed man in a velveteen suit of a yellowy green colour and pearl buttons came up to me. he looked like one of lord onslow's gamekeepers. i knew nothing of him, but seemed to recognize his features as those of one i had seen before. when he came in front of my seat he grinned with immense satisfaction, and said,-- "can i get you anything, mr. orkins?" i could not understand the man's meaning. "no, thank you," i said. "what do you mean?" "don't you recollect, sir, you defended me at kingston for a burglary charge, and got me off., mr. orkins, in flyin' colours?" i recollected. he seemed to have the flying colours on his lips. "very well," i said; "i hope you will never want defending again." "no, sir; never." "that's right." "would a _teapot_ be of any use to you, mr. orkins?" "a teapot!" "yes, sir, or a few silver spoons--anything you like to name, mr. orkins." i begged him to leave the court. "mr. orkins, i will; but i am grateful for your gettin' me off that job, and if a piece o' plate will be any good, i'll guarantee it's good old family stuff as'll fetch you a lot o' money some day." i again told him to go, and, disappointed at my not accepting things of greater value, he said,-- "sir, will a sack o' taters be of any service to you?" this sort of gratitude was not uncommon in those days. i told the story to mr. justice wightman, and he said,-- "oh, that's nothing to what happened to the common serjeant of london. he had sent to him once a christmas hamper containing a hare, a brace and a half of pheasants, three ducks, and a couple of fowls, which _he accepted_." i sometimes won a jury over by a little good-natured banter, and often annoyed chief justice campbell when i woke him up with laughter. and yet he liked me, for although often annoyed, he was never really angry. he used to crouch his head down over his two forearms and go to sleep, or pretend to, by way of showing it did not matter what i said to the jury. i dare say it was disrespectful, but i could not help on these occasions quietly pointing across my shoulder at him with my thumb, and that was enough. the jury roared, and campbell looked up,-- "what's the joke, mr. hawkins?" "nothing, my lord; i was only saying i was quite sure your lordship would tell the jury exactly what i was saying." "go on, mr. hawkins--" then he turned to his clerk and said,-- "i shall catch him one of these days. confine yourself to the issue, mr. hawkins." "if your lordship pleases," said i, and went on. the eccentricities of judges would form a laughable chapter. some of them were overwhelmed with the importance of their position; none were ever modest enough to perceive their own small individuality amidst their judicial environments; and this thought reminds me of an occurrence at liverpool assizes, when huddlestone and manisty, the two judges on circuit, dined as usual with the lord mayor. the queen's health was proposed, of course, and manisty, with his innate good breeding, stood up to drink it, whereupon his august brother judge pulled him violently by his sleeve, saying, "sit down, manisty, you damned fool! _we_ are the queen!" i was addressing a jury for the plaintiff in a breach of promise case, and as the defendant had not appeared in the witness-box, i inadvertently called attention to an elderly well-dressed gentleman in blue frock-coat and brass buttons--a man, apparently, of good position. the jury looked at him and then at one another as i said how shameful it was for a gentleman to brazen it out in the way the defendant did--ashamed to go into the witness-box, but not ashamed to sit in court. here the gentleman rose in a great rage amidst the laughter of the audience, in which even the ushers and javelin-men joined, to say nothing of the judge himself, and shouted with angry vociferation,-- "mr. hawkins, i am _not_ the defendant in this case, sir ----" "i am very sorry for you," i replied; "but no one said you were." there was another outburst, and the poor gentleman gesticulated, if possible, more vehemently than before. "i am not the def--" "nobody would have supposed you were, sir, if you had not taken so much trouble to deny it. the jury, however, will now judge of it." "i am a married man, sir." "so much the worse," said i. chapter xxvii. my candidature for barnstaple. although the house of commons dislikes lawyers, constituencies love them. the enterprising patriots of the long robe are everywhere sought after, provided they possess, with all their other qualifications, the one thing needful, and possessing which, all others may be dispensed with. barnstaple was no exception to the rule. it had a character for conspicuous discernment, and, like the unseen eagle in the sky, could pick out at any distance the object of its desire. eminent, respectable, and rich must be the qualification of any candidate who sought its suffrages--the last, at all events, being indispensable. up to this time i had not felt those patriotic yearnings which are manifested so early in the legal heart. i was never a political adventurer; i had no eye on parliament merely as a stepping-stone to a judgeship; and probably, but for the events i am about to describe, i should never have been heard of as a politician at all. there were so many candidates in the profession to whom time was no object that i left this political hunting-ground entirely to them. in i was waited upon at westminster by a very influential deputation from the barnstaple electors--honest-looking electors as any candidate could wish to see--bringing with them a requisition signed by almost innumerable independent electors, and stating that there were a great many more of the same respectable class who would have signed had time been permitted. further signatures were, however, to be forwarded. it was urged by the deputation that i should make my appearance at barnstaple at the earliest possible date, as no time was to be lost, and they were most anxious to hear my views, especially upon topics that they knew more about than i, which is generally the case, i am told, in most constituencies. i asked when they thought i ought to put in an appearance. "within a week at latest," said the leading spirit of the deputation. "within a week at latest," repeated all the deputation in chorus." because," said the leading personage, "there is already a gentleman of the name of cave" (it should have been pronounced as two syllables, so as to afford me some sort of warning of the danger i was confronting) "busily canvassing in all directions for the liberal party, and mr. howell gwynne and sir george stukely will be the conservative candidates. however, it would be a certain seat if i would do them the honour of coming forward. there would be little trouble, and it would almost be a walk-over." a walk-over was very nice, and the tantalizing hopes this deputation inspired me with overcame my great reluctance to enter the field of politics; and in that ill-advised moment i promised to allow myself to be nominated. it was arranged that i should make my appearance by a specified afternoon train on a particular day in the week (apparently to be set apart as a public holiday), so that i had little time for preparation. by the next day's post i received a kind of official communication from "our committee," stating that a very substantial deputation from the general body would have the honour to meet me at the station, and accompany me to the committee-rooms for the purpose of introduction. down, therefore, i went by the great western line, and in due time arrived at my destination, as i thought. i found, instead of the "influential body of gentlemen" who were to have the honour of conducting me to the headquarters of the liberal party, there was only a small portion of it, almost too insignificant to admit of counting. but he was an important personage in uniform, and dressed somewhat like a commissionaire. after much salutation and deferential hemming and stammering, he said i had better proceed to a _little station only a few miles farther on and dine_, "and if so be i'd do that, they would meet me in the evening." not being a professional politician, nor greatly ambitious of its honours, i was somewhat disconcerted at such extraordinary conduct on the part of my committee, and would have returned to town, but that the train was going the wrong way, and by the time i reached the little station i had argued the matter out, as i thought. it _might_ be a measure of precaution, in a constituency so respectable as barnstaple, to prevent the least suspicion of _treating_ or corrupt influence. had i dined at barnstaple it might have been suggested that some one dined with me or drank my health. whatever it was, the revelation was not yet. i was to return "as soon as i had dined." everything was to be ready for my reception. all these instructions i obeyed with the greatest loyalty, and returned at an early hour in the evening. but if i was disappointed at my first reception, how was i elated by the second! all was made up for by good feeling and enthusiasm. we were evidently all brothers fighting for the sacred cause, but what the cause was i had not been informed up to this time. at the station was a local band of music waiting to receive me, and to strike up the inspiring air, "see the conquering hero comes;" but, unfortunately, the band consisted only of a drum, of such dimensions that i thought it must have been built for the occasion, and a clarionet. before the band struck up, however, i was greeted with such enthusiastic outbursts that they might have brought tears into the eyes of any one less firm than myself. "orkins for ever!" roared the multitude. it almost stunned me. never could i have dreamt my popularity would be so great. "orkins for ever!" again and again they repeated, each volley, if possible, louder than before. "bravo, orkins! let 'em 'ave it, orkins! don't spare 'em." i wish i had known what this meant. i must say they did all that mortals could do with their mouths to honour their future member. hogarth's "march to finchley" was outdone by that march to the barnstaple town hall. an enormous body of electors, "free and independent" stamped on their faces as well as their hands, was gathered there, and it was a long time before we could get anywhere near the door. again and again the air was rent with the cries for "orkins," and it was perfectly useless for the police to attempt to clear the way. they had me as if on show, and it was only by the most wonderful perseverance and good luck that i found myself going head first along the corridor leading to the hall itself. when i appeared on the platform, it seemed as if barnstaple had never seen such a man; they were mad with joy, and all wanted to shake hands with me at once. i dodged a good many, and by dint of waving his arms like a semaphore the chairman succeeded, not in restoring peace, but in moderating the noise. i now had an opportunity of using my eyes, and there before me in one of the front seats was the redoubtable cave--the great canvassing cave--who instantly rose and gave me the most cordial welcome, trusted i was to be his future colleague in the house, and was most generous in his expressions of admiration for the people of barnstaple, especially the voting portion of them, and hoped i should have a very pleasant time and never forget dear old barnstaple. i said i was not likely to--nor am i. of course i had to address the assembled electors first after the introduction by the chairman, who, taking a long time to inform us what the electors _wanted_, i made up my mind what to say in order to convince them that they should have it. i gave them hopes of a great deal of legal reform and reduction of punishments, for i thought that would suit most of them best, and then gladly assented to a satisfactory adjustment of all local requirements and improvements, as well as a determined redress of grievances which should on no account be longer delayed. ("orkins for ever!") then cave stood up--an imposing man, with a good deal of presence and shirt-collar--who invited any man--indeed, _challenged_ anybody--in that hall to question him on any subject whatever. the challenge was accepted, and up stood one of the rank and file of the electors--no doubt sent by the howell gwynne party--and with a voice that showed at least he meant to be heard, said,-- "mr. cave, first and foremost of all, i should like to know _how your missus is to-day_?" it was scarcely a political or public question, but nobody objected, and everybody roared with laughter, because it seemed at all political meetings cave had started the fashion, which has been adopted by many candidates since that time, of referring _to his wife_! cave always began by saying he could never go through this ordeal without the help and sympathy of his dear wife--his support and joy--at whose bidding and in pursuit of whose dreams he had come forward to win a seat in their uncorruptible borough, and to represent them--the most coveted honour of his life--in the house of commons. of course this oratory, having a religious flavour, took with a very large body of the barnstaple electors, and was always received with cheers as an encouragement to domestic felicity and faithfulness to connubial ties. when this gentleman put the question, cave answered as though it was asked in real earnest, and was cheered to the echo, not merely for his domestic felicity, but his cool contempt for any man who could so far forget connubial bliss as to sneer at it. for a few days all went tolerably well, and then i was told that a very different kind of influence prevailed in the borough than that of religion or political morality, and that it would be perfectly hopeless to expect to win the seat unless i was prepared to purchase the large majority of electors; indeed, that i must buy almost every voter. (that's what they meant by "give it 'em, orkins! let 'em 'ave it!") this i refused to believe; but it was said they were such free and independent electors that they would vote for _either_ party, and you could not be sure of them until the last moment; in fact, _if i would win i must bribe_! to say nothing of all sorts of subscriptions to cricket clubs and blanket clubs, as well as friendly societies of all kinds. i declined to accept these warnings, and looked upon it as some kind of political dodge got up by the other side. i resolved to win by playing the game, and made up my mind to go to the poll on the political questions which were agitating the public mind, as i was informed, by a simple honest candidature, thinking that in political as in every other warfare honesty is the best policy. on that noble maxim i entered into the contest, believing in barnstaple, and feeling confident i should represent it in parliament. to indulge in bribery of any sort would, i knew, be fatal to my own interests even if i had not been actuated by any higher motive. i placed myself, therefore, in the hands of my friend and principal agent, mr. kingston, as well as the other agents of the party. we did not long, however, remain true to ourselves. there was a hitch somewhere which soon developed into a split; and it was certain some of us must go to the wall. i could not, however, understand the reason of it; we professed the same politics, the same "cause," the same battle-cry, the same enemies. but, whatever it was, we were so much divided that my chances of heading the poll were diminishing. i had been cheered to the echo night after night and all day long, so that there was enough shouting to make a prime minister; my horses had time after time been taken from my carriage, and cheering voters drew me along. these unmistakable signs of popular devotion to my interests had been most encouraging; and as they shouted themselves hoarse for me, i talked myself hoarse for them. we had a mutual hoarseness for each other. everything looked like success; everything _sounded_ like success; and night after night out came drum and clarionet to do their duty manfully in drumming me to my hotel. it had been a remarkable success; everybody said so. most of them declared solemnly they had never seen anything like it. they pronounced it a record popularity. i thought it was because the good people had selected me as their candidate on independent and purity of election principles. this explanation gave them great joy, and they cheered with extra enthusiasm for their own virtue. judge, then, my surprise a short while after, when, notwithstanding the firm principles upon which we had proceeded, and by which my popularity was secured, i began to perceive that _money was the only thing they wanted_! their uncorruptible nature yielded, alas! to the lowering influence of that deity. it was at first a little mysterious why they should have postponed their demands--secret and silent--until almost the last moment; but the fact is, a large section of my party were dissatisfied with the voluntary nature of their services; they declined to work for nothing, and having shown me that the prize--that is, the seat--was mine, they determined to let me know it must be paid for. a large number of my voters would do nothing; they kept their hands in their pockets because they could not get them into mine. this was no longer a secret, but on the eve of the election was boldly put forward as a demand, and i was plainly told that £ distributed in small sums would make my election sure. as, however, in no circumstances would i stoop to their offer, this demand did not in the least influence me--i never wavered in my resolution, and refused to give a farthing. furthermore, showing the web in which they sought to entangle me, the same voice that suggested the £ also informed me that i was closely watched by a couple of detectives set on by the other side. i was well aware that the "other side" had given five-pound notes for votes, but i could neither follow the example nor use the information, as it was told me "in the strictest confidence." i was therefore powerless, and felt we were drifting asunder more and more. at last came the polling day, and a happy relief from an unpleasant situation it certainly was. a fine bright morning ushered in an exciting day. there was a great inrush of voters at the polling-booth, friendly votes, if i may call them so--votes, i mean to say, of honest supporters; these were my acquaintances made during my sojourn at barnstaple; others came, a few for cave as well as myself. cave did not seem to enjoy the popularity that i had achieved. still, he got a few votes. now came an exciting scene. about midday, the working man's dinner hour, the tide began to turn, for the whole body of _bribed_ voters were released from work. my majority quickly dwindled, and at length disappeared, until i was in a very hopeless minority. everywhere it was "stukely for ever!" some cried, "stukely and free beer!" stukely, who till now had hardly been anybody, and had not talked himself hoarse in their interests as i had, was the great object of their admiration and their hopes. the consequence of this sudden development of stukely's popularity was that cave united his destiny with the new favourite, and such an involution of parties took place that "stukely and cave" joined hand in hand and heart to heart, while poor howell gwynne and myself were abandoned as useless candidates. at one o'clock it was clear that i must be defeated by a large majority. the cave party then approached me with the modest request that, as it was quite clear that i could not be returned, would i mind attending the polling places and give my support to cave? this piece of unparalleled impudence i declined to accede to, and did nothing. the election was over so far as i was interested in its result; but i was determined to have a parting word with the electors before leaving the town. i was mortified at the unblushing treachery and deception of my supporters. i was next asked what i proposed to do. it was their object to get me out of the town as soon as possible, for if unsuccessful as a candidate, i might be troublesome in other ways. such people are not without a sense of fear, if they have no feeling of shame. i said i should do nothing but take a stroll by the river, the day being fine, and come back when the poll was declared and make them a little speech. the little speech was exactly what they did not want, so in the most friendly manner they informed me that a fast train would leave barnstaple at a certain time, and that probably i would like to catch that, as no doubt i wished to be in town as early as possible to attend to my numerous engagements. if they had chartered the train themselves they could not have shown greater consideration for my interests. but i informed them that i should stop and address the electors, and with this statement they turned sulkily away. at the appointed hour for the declaration of the poll i was on the hustings--well up there, although the lowest on the poll. stukely and cave were first and second, howell gwynne and myself third and _last_! when my turn came to address the multitude, i spoke in no measured terms as to the conduct of the election, which i denounced as having been won by the most scandalous bribery and corruption. all who were present as unbiassed spectators were sorry, and many of them expressed a wish that i would return on a future day. "not," said i, "until the place has been purged of the foul corruption with which it is tainted." i had resolved to leave by the mail train, and was actually accompanied to the station by a crowd of some , people, including the rector, or vicar of the parish, who gave me godspeed on my journey home. this kind and sincere expression of goodwill and sympathy was worth all the boisterous cheers with which i had been received. on the platform at the railway station i had to make another little speech, and then i took my seat, not for barnstaple, but london. as the train drew out of the station, the people clung to the carriage like bees, and although i had not even honeyed words to give them, they gave me a "send-off" with vociferous cheers and the most cordial good wishes. thus i bade good-bye to barnstaple, never to return or be returned, and i can only say of that enlightened and independent constituency that, while seeking the interests of their country, they never neglected their own. i need not add that i learnt a great deal in that election which was of the greatest importance in the conduct of the parliamentary petitions which were showered upon me. before i accepted the candidature of barnstaple, a friend of mine said he had been making inquiries as to how the little borough of totnes could be won, and that the lowest figure required as an instalment to commence with was £ , . after this i had no more to do with electioneering in the sense of being a candidate, but a good deal to do with it in every other. chapter xxviii. the tichborne case. [the greatest of all chapters in the life of mr. hawkins was the prosecution of the impostor arthur orton for perjury, and yet the story of the tichborne case is one of the simplest and most romantic. the heir to the tichborne baronetcy and estates was shipwrecked while on board the _bella_ and drowned in . in a butcher at wagga wagga in australia assumed the title and claimed the estates. but the story is not related in these reminiscences on account of its romantic incidents, but as an incident in the life of lord brampton. it is so great that there is nothing in the annals of our ordinary courts of justice comparable with it, either in its magnitude or its advocacy. i speak particularly of the trial for perjury, in which mr. hawkins led for the prosecution, and not of the preceding trial, in which he was junior to sir john coleridge. it is impossible to give more than the _points_ of this strange story as they were made, and the real _facts_ as they were elicited in cross-examination and pieced together in his opening speech and his reply in the case for the crown. what rendered the task the more difficult was that his predecessors had so bungled the cross-examination in many ways that they not only had not elicited what they might have done, but actually, by many questions, furnished information to the claimant which enabled him to carry on his imposture.] the tichborne trials demand a few words by way of introduction, for although there were two trials, they were of a different character, the first being an ordinary action of ejectment in which the claimant sought to dispossess the youthful heir, whose title he had already assumed, under circumstances of the most extraordinary nature. the action of ejectment was tried before chief justice bovill at the common pleas, westminster. ballantine and giffard (now lord halsbury) led for the plaintiff, the butcher, while on behalf of the trustees of the estate (that is, the real heir) were the solicitor-general coleridge, myself, bowen (afterwards lord bowen), and chapman barber, an _equity_ counsel. i must explain how it was that i, having been retained to lead coleridge, was afterwards compelled to be led by him; and it is an interesting event in the history of the bar as well as of the judicial bench. the action was really a western circuit case, although the venue was laid in london. coleridge led that circuit and was retained. i belonged to the home circuit, and had no idea of being engaged at all for that side. i had been retained for the claimant, but the solicitor, with great kindness, withdrew his retainer at my request. i was brought into the case for the purpose of leading, and no other; but by the appointment of coleridge to the solicitor-generalship in , i was displaced, and coleridge ultimately led. his further elevation happened in this way: sir robert collier was attorney-general, and it was desired to give him a high appointment which at that moment was vacant, and could only be filled by a judge of the high court. collier was not a judge, and therefore was not eligible for the post. the question was how to make him eligible. the prime minister of the day was not to be baffled by a mere technicality, and he could soon make the attorney-general a judge of the high court if that was a condition precedent. there was immediately a vacancy on the bench; collier was appointed to the judgeship, and in three days had acquired all the experience that the act of parliament anticipated as necessary for the higher appointment in the privy council. instead of leading, therefore, in the case before chief justice bovill, i had to perform whatever duties coleridge assigned to me. my commanding position was gone, and it was no longer presumable that i should be entrusted with the cross-examination of the plaintiff. i was bound to obey orders and cross-examine whomsoever i was allowed to. [the one thing mr. hawkins was retained for was the cross-examination of the plaintiff. lord chief justice cockburn said, "i would have given a thousand pounds to cross-examine him." it would have been an excellent investment of the tichborne family to have given hawkins ten thousand pounds to do so, for i am sure there would have been an end of the case as soon as he got to wapping. coleridge acknowledged that the claimant cross-examined him instead of his cross-examining the claimant. when that shrewd and cunning impostor was asked, "would you be surprised to hear this or that?" "no," said he, "i should be surprised at nothing after this long time and the troubles i have been through; but, now that you call my attention to it, i remember it all perfectly well." coleridge said: "i am leader by an accident." "yes," said hawkins, "a colliery accident."] i had also been retained by the trustees of the doughty estate. lady doughty was an aunt of sir roger tichborne, and it was her daughter kate whom the heir desired to marry. had the claimant succeeded in the first case, he would have brought an action against her also. no copy of the proceedings had been supplied to me, and i was informed that at this preliminary cross-examination they would not require my assistance; that their learned chancery barrister was merely going to cross-examine the claimant on his affidavits--a matter of small consequence. so it was in one way, but of immeasurable importance in many other ways. but they said _i might like to hear the cross-examination as a matter of curiosity_. i did. the claimant had it all his own way. i was powerless to lend any assistance; but had i been instructed, i am perfectly sure i could then and there have extinguished the case, for the claimant at that time knew absolutely nothing of the life and history of roger tichborne. so the case proceeded, with costs piled on costs; information picked up, especially by means of interminable preliminary proceedings, until the impostor was left master of the situation, to the gratification of fools and the hopes of fanatics. i was, however, allowed in the trial to cross-examine some witnesses. amongst them was a man of the name of baigent, the historian of the family, who knew more of the tichbornes than they knew of themselves. the cross-examination of baigent, which did more than anything to destroy the claimant's case, occupied ten days. he was the real roger's old friend, and knew him up to the time of his leaving england never to return. i drew from him the confession that he did not believe he was alive, but that he had encouraged the dowager lady tichborne to believe that the claimant was her son; and that her garden was lighted night after night with chinese lanterns in expectation of his coming. admissions were also obtained that when he saw the claimant at alresford station neither knew the other, although baigent had never altered in the least, as he alleged. there was another witness allotted to me, and that was carter, an old servant of roger whilst he was in the carabineers. this man supplied the plaintiff with information as to what occurred in the regiment while roger belonged to it; but he only knew what was known to the whole regiment. he did _not_ know private matters which took place at the officers' mess, and it was upon these that my cross-examination showed the claimant to be an impostor. i "had him there." as parry and i were sitting one morning waiting for the judges, i remarked on the subject of the counsel chosen for the prosecution: "suppose, parry, you and i had been solicitor and attorney-general, in the circumstances what should we have done?" "plunged the country into a bloody war before now, i dare say," said parry, elevating his eyebrows and wig at the same time. i confess when i undertook the responsibility of this great trial i was not aware of the immense labour and responsibility it would involve; nor do i believe any one had the smallest notion of the magnitude of the task. instead of the work diminishing as we proceeded, it increased day by day, and week by week; one set of witnesses entailed the calling of another set. the case grew in difficulty and extent. it seemed absolutely endless and hopeless. within a few weeks of the start, a necessity arose for procuring the testimony of a witness from australia, a matter of months; and the trial being a criminal one, the defendant was entitled to have the case for the prosecution concluded within a reasonable time. if we had no evidence, it was to his advantage, and we had no right to detain him for a year while we were trying to obtain it. however, the australian evidence came in time. numbers of witnesses had to be called who not only were not in our brief, but were never dreamed of. for instance, there was the danish perjurer louie, who swore he picked up the defendant at sea when the _bella_ went down. instead of this man going away after he had given his evidence, he remained until two gentlemen from the city, seeing his portrait in the stereoscopic company's window in regent street, identified him as a dishonest servant of theirs, who was undergoing a sentence of penal servitude at the time he swore he picked roger up. he received five years' penal servitude for his evidence. i had pledged myself to the task, which extended over many months more than i ever anticipated. at every sacrifice, however, i was bound to devote myself to the case, and did so, although i had to relinquish a very large portion of my professional income. what made things worse, there was not only no effort made to curtail the business, but advantage was taken of every circumstance to prolong it. the longer it was dragged out the better chance there was of an acquittal. had a juryman died after months of the trial had passed, the government must have abandoned the prosecution. it would have been impossible to commence again. this was the last hope of the defence. [the trial before bovill ended at last, as it ought to have done months before, in a verdict for the defendants and the order for the prosecution of the claimant for perjury. it was this prosecution that occupied the attention of the court and of the world for days, extending over portions of two years. there is no doubt that coleridge would a second time have deprived the country of mr. hawkins's services, but higher influences than his prevailed, and the distinguished counsel was appointed to lead for the crown, with mr. serjeant parry as his leading junior. it is not too much to say that no one knew the case so well as mr. hawkins, and none could have done it so well. bowen and mathews were also his juniors. the whole case, from the commencement of the chancery proceedings down to the commencement of this trial, had been a comedy of blunders. the very claim was an absurdity, every step in the great fraud was an absurdity, and every proceeding had some ridiculous absurdity to accompany it. it was not until the cross-examination of baigent by mr. hawkins that the undoubted truth began to appear. "you are the first," said baron bramwell, "who has let daylight into the case." it will be seen presently what the simple story was which the learned counsel at last evolved from the lies and half-truths which had for so many years imposed upon a great number even of the intelligent and educated classes of the community. and i would observe that until nearly the end of the trial the case was never safe or quite free from doubt; it was only what was elicited by mr. hawkins that made it so. no wonder the advocate said to giffard, who was opposed to him on the first trial: "if you and i had been together in that case in the first instance, we should have won it for the claimant." being on the other side, this is how the case stood when he had completed it:-- the real heir to the family was a fairly well-formed, slender youth of medium height. the personator of this youth was a man an inch and a half or two inches taller, and weighing five-and-twenty stone. his hands were a great deal larger than those of roger, and at least an inch longer; his feet were an inch and a half longer. he was broader, deeper, thicker, and altogether of a different build. the lobes of his ears, instead of being pendent like roger's, adhered to his cheeks. but he was not more unlike in physical outline than in mental endowment, taste, character, pursuits, and sentiment, in manners and habits, in culture and education, connection and recollection. roger had been educated at stonyhurst, with the education of a gentleman; this man had never had any education at all. roger had moved in the best english society; this man amongst slaughtermen, bushrangers, thieves, and highwaymen. roger had been engaged to a young lady, his cousin, kate doughty; this man had been engaged to a young woman of wapping, of the name of mary ann loader, a respectable girl in his own sphere of life. roger's engagement to this young lady, his cousin, was disapproved of by the tichborne family, and was the cause of his leaving england. but before he went he gave her a writing, and deposited a copy of it with mr. gosford, the legal adviser of the family. this document was one of the most important incidents in the history of the case, and upon it, if the cross-examination had been conducted by mr. hawkins in chancery, the case would have been crushed at the outset. it is not my task to show how, but to state what it all came to when the learned counsel left it to the jury to say whether the claimant _was_ the roger tichborne he had sworn himself to be, or whether he was arthur orton, the butcher of wapping, whom he swore he was not. this document forms the subject of the "sealed packet" left with mr. gosford, and contained in effect these words: "if god spares me to return and marry my beloved kate within a year, i promise to build a church and dedicate it to my patron saint." till his cross-examination in chancery he had never heard of this packet, and when he was informed of it his solicitor naturally demanded a copy. gosford had destroyed the original, and of course there was no end of capital out of it; a concocted original was made, which was to the effect that this gentleman, "so like roger," _had seduced his cousin_, and that if she proved to be _enceinte_, gosford was to take care of her. luckily "kate doughty" had her original preserved with sacred affection. but such was the memory of this man's early life, contrasted with what _would_ have been the memory of sir roger tichborne. he did not recollect being "at stonyhurst, but said positively he was at winchester, where certainly roger never was. he did not remember his mother's christian names, and could not write his own. he came to england to see his mother, and then would not go to her; she went to see him, and he got on to the bed and turned his face to the wall. she did not see his face, but recognized him by his ears, because they were like his uncle's, then ordered the servant to undo his braces for fear he should choke. such a piece as this on the stage would not have lasted one night; in real life it had a run for many years. but then there never was a rogue that some fool would not believe in. how else was it possible that millions believed in this man, who had forgotten the religion he had been brought up in, and was married by a wesleyan minister at a wesleyan church, he being, as his mother informed him, a strict roman catholic from his birth? however, he did his best to reform his error by getting married again by a roman priest, although he made another blunder, and forgetting he was sir roger tichborne, married as arthur orton, the son of the wapping butcher. when his dear mother reminded him of his being a catholic, he wrote and thanked her for the information, and hoped the blessed maria would take care of her for evermore, little dreaming that the "black maria" would one day take particularly good care of himself. so that he forgot the place of his birth, the seat of his ancestors, the friends of his youth, the face, features, and form of his mother, his education and religion, his brother officers in the regiment, the regiment itself, and the position he occupied, thinking he had been a private for fifteen days instead of a painstaking, studious, diligent officer, who was beloved by his fellows. he had forgotten all his neighbours, servants, dependants, as well as the family solicitor who made his will and was appointed his executor. he forgot his life in paris, the village church of his ancestral seat--nay, the ancestral seat itself--and the very road that led to it. he forgot his old friend and historian, who swore he had never altered the least in appearance since roger left--historian and picture-cleaner to the family. in short, there was not one single thing in the life of roger that he knew. he forgot what any but a born fool would remember while he was in poverty and bankruptcy for a couple of hundred pounds; the real roger had written home on hearing of the death of his uncle, from whom he derived his title and estates, saying, "pray go to messrs. glyn's and exchange my letter of credit for £ , for three years for one for £ , ." imagine a man forgetting he had £ , a year and an estate in england worth £ , , and earning his bread in a slaughter-house and in the bush, borrowing money from a poor woman and running away with it. but now another singular thing stamps this fraudulent impostor who makes so many believe in him. he, alleged by his supporters to be sir roger tichborne, recollected all about a place that he had never been to; people he had never heard of, far less seen; events that he could _not_ know and which never happened to him, but did happen to arthur orton. he knew wapping well--every inch of it; old charles orton, the father of arthur; charles orton the brother, the sisters, the people who kept this shop and that; so that when on his return to england he went to the wapping seat of his ancestors instead of ashford, he asked all about them, and reminded them so faithfully of the little events of arthur's boyhood, and resembled that person so much in the face, that they said, "why, you are arthur orton yourself!" true, he paid some of them to swear he was not, but the impression remained. mr. hawkins told the jury how he picked up his second-hand knowledge of the things he spoke about concerning the tichbornes, for it was necessary to be able to answer a good many questions wherever he went, especially when he went into the witness-box. there was an old black servant, quite black, who had been a valet in the tichborne family. his name was bogle; and the claimant was told by the poor old dowager that if he could meet with him, bogle could tell him a good many things about himself. bogle was an excellent diplomatist, and no sooner heard from lady tichborne that her son roger was in australia than the two began to look for one another, the one as black inside as the other was out. bogle announced that he was the man before he saw him, on the mother's recommendation, and became and was to the end one of his principal supporters--so much so that "old bogle" spread the claimant's knowledge of the tichbornes abroad, and, like everybody else, believed in him because he knew so much which he could not have known unless he had been the veritable roger, all which bogle had told him. but in the interests of justice "old bogle" and mr. hawkins became acquainted, much to the advantage of the latter, as he happened to meet bogle in the witness-box, a place where the counsel unravelled the trickster's most subtle of designs. the advocate liked "old bogle," as he called him, because, said he, bogle, having white hair, was so like a malacca cane with a silver knob, white at the top and black below. bogle had sworn that roger had no tattoo marks when he left england. in point of fact he had, and bogle had to fit them to the claimant, who had had tattoo marks of a very different kind from roger's. the claimant had removed his, and therefore was presented to the court without any. "how do you know roger had no tattoo marks?" asked mr. hawkins. "i saw his arms on three occasions." this was a serious answer for bogle. "when and where, and under what circumstances?" followed in quick succession, so that there was no escape. the witness said that roger had on a pair of black trousers tied round the waist, and his shirt buttoned up. "the sleeves, how were they?" "loose." "how came you to see his naked arms?" "he was rubbing one of them like this." "what did he rub for?" "i thought he'd got a flea." "did you see it?" "no, of course." "where was it?" "just there." "what time was this?" "ten minutes past eleven." "that's the first occasion; come to the second." "just the same," says bogle. "same time?" "yes." "did he always put his hand inside his sleeve to rub?" "i don't know." "but i want to know." "if your shirt was unbuttoned, mr. hawkins, and you was rubbin' your arm, you would draw up your sleeve--" "never mind what i should do; i want to know what you saw." "the same as before," answers bogle angrily. "a flea?" "i suppose." "but did you see him, bogle?" "i told you, mr. hawkins, i did not." "excuse me, that was on the first occasion." "well, this was the same." "same flea?" "i suppose." "same time--ten minutes past eleven?" "yes." "then all i can say is, he must have been a very punctual old flea." exit bogle, and with him his evidence. after the trial had been proceeding for some time, baigent was giving evidence of the family pedigree. honeyman whispered, "we might as well have the first chapter of genesis and read that." "genesis!" said hawkins; "i want to get to the last chapter of revelation." one day mr. j.l. toole came in, and was invited to sit next to mr. hawkins, which he did. at the adjournment for luncheon the claimant muttered as they passed along, "there's toole come to learn actin' from 'arry orkins." there was one witness who ought not to be forgotten. it was mr. biddulph, a relation of the tichborne family, a good-natured, amiable man, willing to oblige any one, and a county magistrate--"one of the most amiable county magistrates i have ever met, a man of the strictest honour and unimpeachable integrity." he had been asked by the dowager lady to recognize her son. "i don't see how i can," said he. "i am willing to oblige, but not at the expense of truth. better get some one else who knew him better than i did. this man bears no resemblance to the man i knew. i cannot do it." and so he resisted all entreaties with that firmness of purpose for which he was remarkable. "he was then invited," said mr. hawkins, "to a little dinner at another supporter of the claimant's, and one somewhat shrewder than the rest." the claimant described this party as consisting of a county magistrate, a money-lender, a lawyer, and a humbug. this is how the advocate dealt with this little party in his address to the jury:-- "gentlemen, can't you imagine the scene? perkins, the lawyer, says to biddulph, 'come, now, mr. biddulph, you know you have had great experience in cross-examining as a county magistrate at petty sessions; now, cross-examine this man _firmly_, and you'll soon find he knows more than you think. if he's not the man, he's nobody else, you may be quite sure of that. but first of all,' says perkins, 'what did you know of roger? that's the first thing; let's start with that.' "'oh, not very much,' says biddulph. 'he stayed at bath once for a fortnight, while his mother was there.' "'pass mr. biddulph the champagne,' says perkins. (laughter.) "'now,' he adds, 'how did you amuse yourselves, eh?' "'well,' says biddulph, 'we used to smoke together at the hotel--the--the--white something it was called.' "'did you smoke pipes or cigars?' "'well, i remember we had some curious pipes.' "'another glass of champagne for mr. biddulph,' (more laughter.) 'what sort of pipes?' asks the claimant; 'death's-head pipes?' "the magistrate remembered, opened his eyes, and lifted his hands. thus the amiable magistrate was convinced, although he said, candidly enough, 'i did not recognize him by his features, walk, voice, or twitch in his eye, but i was struck with his recollection of having met me at bath.' the death's-head pipes settled him. "as for miss brain the governess, she was of a different order from mr. biddulph. she told us she had listened to the defendant when he solemnly swore that he had seduced her former pupil, that he had stood in the dock for horse-stealing, and had been the associate of highwaymen and bushrangers, and had made a will for the purpose of fraud; and yet this woman took him by the hand, and was not ashamed of his companionship. his counsel described her as a ministering angel. heaven defend me from ministering angels if miss brain is one!" the claimant, while in australia, being asked what kind of lady his mother (the dowager lady tichborne) was, answered, "oh, a very stout lady; and that is the reason i am so fond of mrs. butts of the metropolitan hotel, she being a tall, stout, and buxom woman; and like mrs. mina jury (of wapping), because she was like my mother." a witness of the name of coyne was called to give evidence of the recognition of the claimant by the mother in paris, and the solicitor said to coyne, "you see how she recognizes him." "yes," said coyne; "he's lucky." there was no cross-examination, and mr. hawkins said to the jury, "they need not cross-examine unless they like; it's a free country. they may leave this man's account unquestioned if they like, but if it is a true account, what do you say to the recognition?" louie, the dane, said that while the claimant was on board his ship he amused himself by picking oakum and reading "the garden of the soul." there were several _ospreys_ spoken to as having picked up the claimant after the wreck of the _bella_, and the defendant had not the least idea which one was the best to carry him safely into harbour. the defendant's counsel, notwithstanding, had told the jury that he, hawkins, had not ventured to contradict one or other of the stories of the wreck, and had not called the captain of the _osprey_ which had picked him up. comment on such a proposition in advocacy would be ridiculous. mr. hawkins dealt with it by an example which the reader will remember as having occurred in his early days:-- "'we don't know which _osprey_ you mean.' 'take any one,' says the defendant's counsel, reminding me of the defence of a man charged with stealing a duck, and having given seven different accounts as to how he became possessed of it, his counsel was at last asked which he relied on. 'oh, never mind which,' he answered; 'i shall be much obliged if the jury will adopt any one of them.' "you remember, gentlemen, the touching words in which the defendant's counsel spoke of bogle: 'he is one of those negroes,' said he, 'described by the author of "paul and virginia," who are faithful to the death, true as gold itself. if ever a witness of truth came into the box, that witness was bogle.' "well, you have seen him--old bogle! what do you think of him? was there ever a better specimen of feigned simplicity than he? 'bogle,' cries the defendant, after all those years of estrangement, 'is that _you_?' 'yes, sir roger,' answered bogle; how do you do?' "'do you remember giving me a pipe o' baccy?' asks a poor country greenhorn down at alresford. 'yes,' answers the claimant. 'then you're the man,' says the greenhorn. such was the way evidence was manufactured. "a poor lady--you remember mrs. stubbs--had a picture of her great-great-grandfather's great-grandfather. in goes the claimant, and in his artful manner shows his childhood's memory. 'ah, mrs. stubbs,' says he, looking at another picture, 'that is not the _old_ picture, is it?' (somebody had put him up to this.) no, sir,' cries mrs. stubbs, delighted with his recollection--'no, sir; but please to walk this way into my parlour,' and there, sure enough, was the picture he had been told to ask for. "'ah!' he exclaims, 'there it is; there's the old picture!' "how could mrs. stubbs disbelieve her own senses?" one, sir walter strickland, declined to see the claimant and be misled, and was roundly abused by the defendant's counsel. one of the jury asked if _he was still alive_. "yes," said the lord chief justice, although the defendant expressed a hope that they would all die who did not recognize him.... "in a letter to rous, my lord, where he said, 'i see i have one enemy the less in harris's death. captain strickland, who made himself so great on the other side, went to stay at stonyhurst with his brother, and died there. he called on me a week before and abused me shamefully. so will all go some day'--this," said mr. hawkins, "was not exhibiting the same christian spirit which he showed when he said, 'god help those poor _purgured_ sailors!'" "why should the defendant," asked mr. hawkins at the close of one of the day's speeches, "if he were sir roger, avoid arthur orton's sisters? why, would he not have said, 'they will be glad indeed to see me, and hear me tell them about the camp-fire under the canopy of heaven,' as his counsel put it, 'where their brother arthur told me all about fergusson, the old pilot of the dundee boat, who kept the public-house at wapping, and the shetland ponies of wapping, and the shottles of the nook at wapping, and wished me to ask who kept wright's public-house now, and about the cronins, and mrs. macfarlane of the globe--all of wapping.'" the judges fell back with laughter, and the curtain came down, for these were the questions with many more the claimant asked on the evening of his landing. "i shall attack the noble army of carabineers," said mr. hawkins on another occasion. he did so, and conquered the regiment in detail. one old carabineer was librarian at the westminster hospital. his name was manton, and he was a sergeant. he told baigent something that had happened while roger was his officer, and baigent told the claimant. manton afterwards saw the huge man, and failed to recognize him in any way. but when the claimant repeated to him what he had told baigent, manton opened his eyes. this looked like proof of his being the man. he was struck with his marvellous recollection, and was at once pinned down to an affidavit:-- "the claimant's voice is stronger, and has less foreign accent," he swore; "but i recognized his voice, and found his tone and pronunciation to be _the same as roger tichborne's_, whom i knew as an officer." truly an affidavit is a powerful auxiliary in fraud. while mr. hawkins was replying one afternoon, mr. whalley, m.p., came in and sat next to the claimant. he was from the first one of his most enthusiastic supporters. "well," he said, "and how are we getting on to-day? how are we getting on, eh?" "getting on!" growled the claimant; "he's been going on at a pretty rate, and if he goes on much longer i shall begin to think i am arthur orton after all." i will conclude this chapter with the following reminiscences by lord brampton himself.] * * * * * i had a great deal to put up with from day to day in many ways during this prolonged investigation. the lord chief justice, cockburn, although good, was a little impatient, and hard to please at times. my opponent sought day by day some cause of quarrel with me. at times he was most insulting, and grew almost hourly worse, until i was compelled, in order to stop his insults, to declare openly that i would never speak to him again on this side the grave, and i never did. my life was made miserable, and what ought to have been a quiet and orderly performance was rendered a continual scene of bickering and conflict, too often about the most trifling matters. with every one else i got on happily and agreeably, my juniors loyally doing their very utmost to render me every assistance and lighten my burden. even the claimant himself not only gave me no offence from first to last, but was at times in his manner very amusing, and preserved his natural good temper admirably, considering what he had at stake on the issue of the trial, and remembering also that that issue devolved mainly upon my own personal exertions. nor was the claimant devoid of humour. on the contrary, he was plentifully endowed with it. one morning on his going into court an elderly lady dressed in deep mourning presented him with a religious tract. he thanked her, went to his seat, and perused the document. then he wrote something on the tract, carefully revised what he had written, and threw it on the floor. the usher was watching these proceedings, and, as soon as he could do so unobserved, secured the paper and handed it to me. the tract was headed, "sinner, repent!" the claimant had written on it, "surely this must have been meant for orkins, not for me!" louie's story of picking him up in the boat must have amused him greatly. if he was amused at the ease with which fools can be humbugged, he must also have been astounded at the awful villainy of those who, perfect strangers to him, had perjured themselves for the sake of notoriety. i did what i could to shorten the proceedings. my opening speech was confined to six days, as compared with twenty-eight on the other side; my reply to nine. but that reply was a labour fearful to look back upon. the mere classification of the evidence was a momentous and necessary task. it had to be gathered from the four quarters of the world. it had to be sifted, winnowed, and arranged in order as a perfect whole before the true story could be evolved from the complications and entanglements with which it was surrounded. and when i rose to reply, to perform my last work and make my last effort for the success of my cause, i felt as one about to plunge into a boundless ocean with the certain knowledge that everything depended upon my own unaided efforts as to whether i should sink or swim. happily, for the cause of justice, i succeeded; and at the end, although nattering words of approval and commendation poured upon me from all sides, from the highest to the humblest, i did hot then realize their value to the extent that i did afterwards. the excitement and the exertion had been too great for anything to add to it. but i afterwards remembered--ay, and can never forget--the words of the lord chief justice himself, the first to appreciate and applaud, as i was passing near him in leaving the court: "bravo! bravo, hawkins!" and then he added, "i have not heard a piece of oratory like that for many a long day!" and he patted me cordially on the back as he looked at me with, i believe, the sincerest appreciation. lord chelmsford, too, who years before had given me my silk gown, was on the bench on this last day, and i shall never forget the compliment he paid me on my speech. it was of itself worth all the trouble and anxiety i had undergone. beyond all this, and more gratifying even still, my speech was liked by the bar, from the most eminent to the briefless. but greatest of all events in that eventful day was one which went deeper to my feelings. my old father, who had taken so strong a view against my going to the bar, and who told me so mournfully that after five years i must sink or swim; my old father, who had never once seen me in my wig and gown from that day to this, the almost closing scene in my forensic career, came into court and sat by my side when i made successfully the greatest effort of my life. chapter xxix. a visit to sheffield--mrs. hailstone's danish boarhound. the remembrance of my sessions days will never vanish from my mind, although at the period of which i am speaking they had long receded into the distant past. even _nisi prius_ was diminishing in importance, although increasing in its business and fees. solicitors no longer condescended to deliver their briefs, but competed for my services. i say this without the smallest vanity, and only because it was the fact, and a great fact in my life. i was wanted to win causes by advocacy or compromise; and the innumerable compensation cases which continually came in with so steady and so full a tide were a sufficient proof that, at all events, the solicitors and others thought my services worth having. so did my clerk! those were the days of the golden harvest, the very gleanings of which were valuable to those who came after. lloyd must have made £ , a year with the greatest ease. what my income was is of no consequence to any one; suffice it to say that no expectations of mine ever came up to its amount, and even now when i look back it seems absolutely fabulous. i will say no more, notwithstanding the curiosity it has excited amongst the members of the profession. of course it was a step for me from the humble "_one three six_;" but i have had a more lively satisfaction from that little sum than from many a larger fee. in the midst of all this rush of london business i still found time to run down to country places in cases of election petitions or compensation. one day i found myself on my way to sheffield to support the member against an attempt to deprive him of his seat in parliament. i went with the hon. sir edward chandos leigh, my distinguished junior on that memorable occasion. the journey was pleasant until we got near the end of it, and then the smoke rolled over and around in voluminous dense clouds, for a description of which you may search in vain through "paradise lost." we were met at the station with great state, and even splendour, and treated with almost boundless hospitality. to keep up our spirits, we were taken for a drive by the sitting member a few miles out, into what they call "the country" in those parts. the suburban residence was situated in a well-wooded park, if that can be called well-wooded where there are no woods, but only stunted undergrowths sickening with the baleful fumes that proceed from the city of darkness in the distance, and black with the soot of a thousand chimneys. the member apologized politely enough for bringing us to this almost uninhabitable and heaven-forsaken region; but i begged him not to mind: it was only a more blasted scene than the heath in "macbeth." "yes," said he, still apologetically; "it _is_ very bad, i admit. you see, the fumes and fires from those manufactories make such havoc of our woods." this was apparent, but the question was how to pass the time amidst this gloom and sickening atmosphere. i found his residence, however, to my great joy, was farther than i expected from the appalling city of darkness, and hope began to revive both in my junior's heart and mine. our friend and host, seeing our spirits thus elated, began, to talk with more life-like animation. "the fumes from the factories, mr. hawkins, have so played the devil with our trees that the general impoverishment of nature has earned for the locality of sheffield the unpleasant title of the 'suburbs of hell.'" "i don't wonder," i answered; "no name could be more appropriate or better deserved; but if it were my fate to choose my locality, i should prefer to live in _the city itself_." a curious incident happened to us during this yorkshire visit. an excursion was arranged to see warburton's, situated some few miles off, and notable for many oddities. we were driven over, and when we arrived were by no means disappointed by the singularities of the mansion. it was enclosed within a high wall, which had been built, not for the purpose, as you might suppose, of preventing the house from getting away, but for that of keeping out rats and foxes; for there were birds to be preserved from these destructive animals. next, this portion of the estate was surrounded by water, which afforded an additional security to its isolation, access to the island being attainable only by means of a bridge. the mansion was occupied by a mrs. hailstone, whose duty it was to show visitors over the house and explain everything as she went along, ghost stories as well; and being a remarkably affable lady, with a great gift of language, we had a very intelligent and edifying lecture in every room we passed through, now upon ornithology, now chronology, next on pisciculture and the habits of stuffed pike and other fish. but this was not all. our guide was wonderfully well read in architecture, and displayed no end of knowledge in pointing out the different orders and sub-orders, periods of, and blendings of the same, so that we were quite ready for lunch as soon as that period should mercifully arrive. but it was not exactly yet. there were many other curiosities to be shown. for instance, we had not done the warburton library, which was a most singular apartment, as we were informed, i don't know how many stories high, at the top of a very singular tower, with as many languages in it as the tower of babel itself, and very nearly as tall. one only wished the whole thing would topple down before we could come to it. at last, however, we climbed to this lofty eminence and revelled as well as we could amongst the musty old books, which themselves revelled in the dust of ages. having seen all the shelves and the backs of the books, and heard all the accounts of them without receiving any information, we commenced our descent by means of the winding staircase towards the garden. on our way a curious circumstance took place. there was an enormously great danish boarhound, which had, unperceived by us, followed mrs. hailstone from the library; it pushed by without ceremony, and proceeded until it reached the lady, who was some distance in advance. he then carefully took the skirt of her dress with his mouth and carried it like an accomplished train-bearer until she reached the bottom of the stairs and the garden, when he let go the dress and gazed as an interested spectator. we were now in the midst of a very beautiful and well-kept garden, with a lawn like velvet stretching far away to the lake, where ultimately we should have to wait for a boat to ferry us along its placid water. this was part of our entertainment, and a very beautiful part it was. but before we parted from mrs. hailstone, and while i was talking to her, i felt my hand in the boarhound's mouth, and a pretty capacious mouth it was, for i seemed to touch nothing but its formidable fangs. it was not a pleasant experience, but i preserved sufficient presence of mind to make no demonstration. dogs know well enough when a man or woman loves their kind, and i am sure this one was no exception, or he would never have behaved with such gentlemanly politeness. so soft was the touch of his fangs that i was only just conscious my hand was in his mouth by now and then the gentlest reminder. i knew animals too well to attempt to withdraw it, and so preserved a calm more wonderful than i could have given myself credit for. while i was wondering what the next proceeding might be, mrs. hailstone begged me to be quite easy, and on no account to show any opposition to the dog's proceedings, in which case she promised that he would lead me gently to the other side of the lawn, and there leave me without doing the least harm. all this was said with such cool indifference that i wondered whether it was a part of the day's programme, and rather supposed it was; but it turned out that she said it to reassure me and prevent mischief. i also learned that it was not by any means the first occasion when this business had taken place. it was the first time in my life that i had been in custody, and if i had had my choice i should have preferred a pair of handcuffs without teeth. as i was being led away mrs. hailstone said,-- "do exactly as he wishes; he is jealous of your talking to me, and leads any one away who does so to the other side of the garden." having conducted me to the remotest spot he could find, he opened his huge jaws and released my hand, wagged his tail, and trotted off, much pleased with his performance. he returned to his mistress and put his large paws on her arms--a striking proof, i thought, of the dog's sagacity. there will be in this history some stories of my famous "jack," but as he belonged to me after i became a judge, they are deferred until that period arrives. the reminiscences of jack are amongst my dearest and most pleasant recollections. the changeful nature of popular clamour was never more manifested than on this visit. the claimant had been convicted and sentenced to penal servitude, but to deprive a man of his title and estate because he was a butcher's son did not coincide with the wishes of a generous democracy, who lingered round the sheffield court, where the fate of their sitting member was to be tried. they believed in their member, and, not knowing on which side i was retained, when i went along the corridor into the court they "yah! yah'd!" at me with lungs that would have been strong enough to set their furnaces going or blow them out. after the petition was tried, and i had been successful, they changed their minds and their language. this same british public, which not long before had "yah! yah'd!" at me, now came forward with true british hoorays and bravos. "'orkins for ever!" "hooray for orkins!" "bravo, orkins!" "hooray! a ---- hooray! hooray for wagga wagga!" this last cry had reference to a village in australia where the great tichborne fraud had its origin; where the first advertisement of the dowager seeking her lost son was shown to the butcher in his own little shop, the son of the respectable butcher of wapping. the number of people who professed to believe in the claimant long after he was sent to penal servitude was prodigious, although not one of them could have given a reason for his faith, or pointed to a particle of unimpeachable evidence to support his opinion. it had never been anything other than feeling in the dark for what never existed. chapter xxx. an expert in handwriting--"do you know joe brown?" i always took great interest in the class of expert who professed to identify handwriting. experts of all classes give evidence only as to opinion; nevertheless, those who decide upon handwriting believe in their infallibility. cross-examination can never shake their confidence. some will pin their faith even to the crossing of a t, "the perpendicularity, my lord," of a down-stroke, or the "obliquity" of an upstroke. mr. nethercliffe, one of the greatest in his profession, and a thorough believer in all he said, had been often cross-examined by me, and we understood each other very well. i sometimes indulged in a little chaff at his expense; indeed, i generally had a little "fling" at him when he was in the box. it is remarkable that, at the time i speak of, judges, as a rule, had wonderful confidence in this class of expert, and never seemed to think of forming any opinion of their own. a witness swore to certain peculiarities; the judge looked at them and at once saw them, too often without considering that peculiarities are exactly the things that forgers imitate. "you find the same peculiarity here, my lord, and the same peculiarity there, my lord; consequently i say it is the same handwriting." in days long gone by the eminent expert in this science had a great reputation. as i often met him, i knew _his_ peculiarities, and how annoyed he was if the correctness of his opinion was in the least doubted. he had a son of whom he was deservedly proud, and he and his son, in cases of importance, were often employed on opposite sides to support or deny the genuineness of a questioned handwriting. on one occasion, in the queen's bench, a libel was charged against a defendant which he positively denied ever to have written. i appeared for the defendant, and mr. nethercliffe was called as a witness for the plaintiff. when i rose to cross-examine i handed to the expert six slips of paper, each of which was written in a different kind of handwriting. nethercliffe took out his large pair of spectacles--magnifiers--which he always carried, and began to polish them with a great deal of care, saying,-- "i see, mr. hawkins, what you are going to try to do--you want to put me in a hole." "i do, mr. nethercliffe; and if you are ready for the hole, tell me--were those six pieces of paper written by one hand at about the same time?" he examined them carefully, and after a considerable time answered: "no; they were written at different times and by different hands!" "by different persons, do you say?" "yes, certainly!" "now, mr. nethercliffe, you are in the hole! i wrote them myself this morning at this desk." he was a good deal disconcerted, not to say very angry, and i then began to ask him about his son. "you educated your son to your own profession, i believe, mr. nethercliffe?" "i did, sir; i hope there was no harm in that, mr. hawkins." "not in the least; it is a lucrative profession. was he a diligent student?" "he was." "and became as good an expert as his father, i hope?" "even better, i should say, if possible." "i think you profess to be infallible, do you not?" "that is true, mr. hawkins, though i say it." "and your son, who, as you say, is even better than yourself, is he as infallible as you?" "certainly, he ought to be. why not?" then i put this question; "have you and your son been sometimes employed on opposite sides in a case?" "that is hardly a fair question, mr. hawkins." "let me give you an instance: in lady d----'s case, which has recently been tried, did not your son swear one way and you another?" he did not deny it, whereupon i added: "it seems strange that two infallibles should contradict one another?" the case was at an end. * * * * * one evening, after a good hard day's work, i was sitting in my easy-chair after dinner, comfortably enjoying myself, when a man, who was quite a respectable working man, came in. i had known him for a considerable time. "what's the matter, jenkins?" i inquired, seeing he was somewhat troubled. "well, mr. hawkins, it's a terrible job, this 'ere. i wants you to appear for me." "where?" i inquired. "at bow street, mr. hawkins." "bow street! what have you been doing, jenkins?" "why, nothing, sir; but it's a put-up job. you knows my james, i dessay. well, sir, that there boy, my son james, have been brought up, i might say, on the church catechism." "there's not much in that," i said, meaning nothing they could take him to bow street for. "is that the charge against him?" "no, sir; but from a babby, sir, his poor mother have brought that there boy up to speak the truth, the whole truth, and nothing but the truth. and it's a curious thing, mr. hawkins--a very curious thing, sir--that arter all his poor mother's care and james's desire to speak the truth, they've gone and charged that there boy with perjury! 'at all times,' says his mother, 'james, speak the truth, the whole truth, and nothing but the truth;' and this is what it's come to--would anybody believe it, sir? _could_ anybody believe it? it's enough to make anybody disbelieve in christianity. and what's more, sir, that there boy was so eager at all times to tell the whole truth that, to make quite sure he told it all, he'd go a little beyond on the other side, sir--he would, indeed." when he heard my fee was a hundred guineas to appear at the police court, i heard no more of truthful james. * * * * * in dealing with a case where there is really no substantial defence, it is sometimes necessary to throw a little ridicule over the proceedings, taking care, first, to see what is the humour of the jury. i remember trying this with great success, and reducing a verdict which might have been considerable to a comparatively trifling amount. [in illustration of this mr. cecil a. coward has given an incident that occurred in an action for slander tried at the guildhall many years ago, in which mr. hawkins, q.c., was for the defendant, and mr. joseph brown, q.c., for the plaintiff. the slander consisted in the defendant pointing his thumb over his shoulder and asking another man, "do you know him? that's joe smith." mr. joseph brown, q.c., had to rely upon his innuendo--"meaning thereby joe smith was a rogue"--and was very eloquent as to slander unspoken but expressed by signs and tone. after an exhausting speech he sat down and buried his head in his bandana, as his habit was. hawkins got up, and turned mr. joseph brown's speech to ridicule in two or three sentences. "gentlemen," he almost whispered, after a very small whistle which nobody could hear but those close around, at the same time pointing his thumb over his shoulder at his opponent, "do you know him--do you know joe brown?" there was a roar of laughter. joe looked up, saw nothing, and retired again into his bandana. again the performance was gone through. "do you know joe brown, the best fellow in the world?" brown looked up again, and was just in time to hear the jury say they had heard quite enough of the case. no slander--verdict for the defendant. it was one of the best pieces of acting i ever saw him do.] chapter xxxi. appointed a judge--my first trial for murder, no sooner was the tichborne case finished than i was once more in the full run of work. one brief was delivered with a fee marked twenty thousand guineas, which i declined. it would not in any way have answered my purpose to accept it. i was asked, however, to name my own fee, with the assurance that whatever i named it would be forthcoming. i promised to consider a fee of fifty thousand guineas, and did so, but resolved not to accept the brief on any terms, as it involved my going to indie, and i felt it would be unwise to do so. in i was offered by lord cairns the honour of a judgeship, which i respectfully declined. it was no hope of mine to step into a puisne judgeship, or, for the matter of that, any other judicial position. i was contented with my work and with my career. i did not wish to abandon my position at the bar, and my friends at the bar, and take up one on the bench with no friends at all; for a judge's position is one of almost isolation. this refusal gave great dissatisfaction to many, and a letter i have before me says, "i got into a great row with my editor by your refusal." another said he lost a lot of money in consequence: "i thought it was any odds upon your taking it." sir alexander cockburn gave me a complimentary side-cut in a speech he made to some of his old constituents. "the time comes," said he, "when men of the greatest eminence are called upon to give up their professional emoluments for the interests of their country. in my opinion they have no right to refuse their services; no man has this right when his country calls for them." but these animadversions did not affect me. i held on to the course which i had deliberately chosen, and which i thought my labours and sacrifices in the tichborne case on behalf of my country entitled me to enjoy. let any one who has the least knowledge of advocacy consider what it was to carry that case to a successful issue, and then condemn me for not taking a judgeship if he will. i was entitled to freedom and rest. a judgeship is neither, as one finds out when once he puts on the ermine. but it requires no argument to justify the course i took. i was entitled to decline, and i did. there is nothing else to be said; all other considerations are idle and irrelevant. a judgeship was, however, a second time offered by lord cairns in . this, after due consideration, i accepted, and received my appointment as a judge of the exchequer court on november of that year. the first and most sensational case that i was called upon to preside over was known as the penge case. sir alexander cockburn had appointed himself to try it, on account of its sensational character; but as it came for trial at a time when the lord chief justice could not attend, it fell to the junior judge on the bench. i am not going to relate the details of that extraordinary case,[a] which are best left in the obscurity of the newspaper files; but i refer to it because it cannot well be passed over in the reminiscences of my life. i shall, however, only touch upon one or two prominent points. [footnote a: the great sensation of the case was almost overpowered by the great sensation that "a new power had come upon the bench." these are, as nearly as i can give them, the words of one of our most distinguished advocates, and one of the most brilliant who was in the penge case:-- "we felt, and the bar felt, that a great power had come upon the bench; he summed up that case as no living man could have done. every word told; every point was touched upon and made so clear that it was impossible not to see it." another distinguished advocate said there was no other judge on the bench who could have summed that case up as sir henry hawkins did.--r.h.] "every person," i said in my summing up, "who is under a legal duty, whether such duty was imposed by law or contract, to take charge of another person must provide that person with the necessaries of life. every person who had that legal duty imposed upon him was criminally responsible if he culpably neglected that duty, and the death of the person for whom he ought to provide ensued. if the death was the result of mere carelessness and without criminal intent, the offence would be manslaughter, provided the jury came to the conclusion that there had been culpable neglect of the duty cast upon the individual who had undertaken to perform it." with regard to the evidence of one of the witnesses who was said to be an accomplice, so that it was necessary that she should be corroborated, i said a jury might convict without it, but recommended them strongly not to take for granted her evidence unless they found there was so much corroboration of her testimony as to induce them to believe she was telling the truth. as to one of the accused, i said: "if she had no legal object to fulfil in providing the deceased with the necessaries of life, the mere omission to do so would not render her guilty; but if she did an act wrongfully which had a tendency to destroy life, but which was not clone with that intention, she would be guilty of manslaughter." the jury found a verdict of guilty against all, but with a strong recommendation in favour of one, in which i joined. when a verdict of guilty of wilful murder is returned, a judge, whatever may be his opinion of its propriety or justice, has no alternative but to deliver the sentence of death, and in the very words the law prescribes. it is not _his_ judgment or decision, but it is so decreed that the sentence shall in no way depend upon the sympathy or opinion of the judge. whatever mitigating circumstances there may be must be considered by the secretary of state for the home department as representing the sovereign, and upon his advice alone the sovereign acts. but the home secretary never allows a sentence of death to be executed without the fullest possible inquiry as to mitigating circumstances, and it is at this stage that the opinion of the judge is almost all-powerful. my judgment in this case was the result of much anxious thought and consideration. the responsibility cast upon me was great. the case was as difficult as it was serious; but my line of duty was plain, and it was to leave the facts as clearly as i could possibly state them, with such explanation of the law applicable to each case as my ability would allow, and then leave the jury to find according to their honest belief. no duty more arduous has ever since been imposed upon me, and i performed it in my honest conscience, without swerving from what i believed, and believe still, to be my strict line of duty. i have had many opportunities of reconsidering the whole circumstances, but i have never changed or varied my opinion after all these years, and am certain i never shall--namely, that i did my duty according to the best of my judgment and ability. a judge may go wrong in many ways, and often does in one way or other, especially if he does not know his own mind--the worst of all weaknesses, because it usually leads to an attempt to strike a medium line between innocence and guilt. one great weakness, too, in a judge is not having the faculty of setting out the facts in language which is intelligible to the jury, or in not setting them out at all, but repeating them so often and in so many forms that they are at last left in an absolutely hopeless muddle. a judge once kept on so at the jury about "if you find burglarious intent, and if you don't find burglarious intent," that at last the jury found nothing except a verdict of not guilty, giving the "benefit of the doubt as to what the judge meant." as an illustration of the necessity of giving the jury a clear idea of the evidence in the simplest case, i will state what took place at exeter. juries are unused to evidence, and have very often to be told what is the bearing of it. in a case of fowl-stealing which i was trying, there was a curious defence raised, which seemed too ridiculous to notice. it was that the fowls had crept into the nose-bag in which they had been found, and which was in the prisoner's possession, in order to shelter themselves from the east wind. forgetting that possibly i had an unreasoning and ignorant jury to deal with, i thought they would at once see through so absurd a defence, and did not insult their common sense by summing up. i merely said,-- "gentlemen, do you believe in the defence?" they put their heads together, and kept in that position for some time, and at last, to my utter amazement, said,-- "we do, my lord; we find the prisoner _not guilty_." it was a verdict for the prisoner and a lesson for me. it was always my practice, founded on much calculation of the respective and relative merits and demerits of prisoners, to do what no other judge that i am aware of ever did, which was to put convicted prisoners back until the whole calendar had been tried, then to bring them up and pass sentence after deliberate consideration of every case. i thus had the opportunity of reading over my notes and forming an opinion as to whether there were any circumstances which i could take into consideration by way of mitigation, or, in the same manner, as to whether there were matters of aggravation, such as cruelty or deliberate, wilful malice. the result of this plan on one occasion at stafford assizes, which i remember very well, was this. two men were convicted of bigamy. the offence was the same in law as to both the prisoners. the one was altogether, physically and morally, a brute, cruel and merciless. the other man found guilty had been a bad husband to his wife before he went through the form of the second marriage; but as he had been already punished for his misconduct in that respect, i thought it fair that he should not be punished again for the same offence. such is my idea of the law of england, although i fear it is sometimes forgotten. i therefore treated this man's crime as one of a very mitigated character, no harm having been done to the second woman, and released him on his own recognizances to come up for judgment if he should be called upon. i would not revisit upon him his past misdeeds. the other man i sent into penal servitude for five years. chapter xxxii. on the midland circuit. "that's orkins hover there," said a burly-looking sportsman as i arrived one day at newmarket heath--"'im a-torkin' to corlett. see 'im? nice bernevolent old cove to look at, ain't 'e? yus. that didn't stop 'is guvin' me _five of his wery best_, simply becorze by accident i mistook someb'dy else's 'ouse and plate-chest for my own. sorter mistake which might 'appen a'most to henybody. there 'e is; see 'im? that's orkins!" i need not say i was frequently spoken of in this complimentary manner by persons who had been introduced to me at the bar. i was once leading a little fox terrier with a string, because on several occasions he had given me the slip and caused me to be a little late in court. i led him, therefore, in the leash until he knew his duty. on this day, however, as the crowd was waiting for me on the little platform of a country station, my fox terrier jumped out in front of me while i was holding him by the string. "good ----!" cried a voice from a gentleman to whom i had previously given a situation under government, livery and all found; "why, blow me if the old bloke ain't blind! lookee there, 'is dawg's a-leadin' 'im; wot d'ye think o' that?" but persons in much higher station were no less at times fond of chaff, which i always took good-humouredly. a story of lord grimthorpe, who, many years after, had some fun with me at times over my little jack, will appear in his reminiscences a little farther on. i used to lead jack with a string in the same manner as i had done the other, for educational purposes, and lord grimthorpe jocularly called me jack's prisoner. but i must let him tell his own story in his own way when his turn comes. the midland circuit was always famous for its ill accommodation of her majesty's judges, and of late years even in the supply of prisoners to keep them from loitering away their days in idleness or lonely diversions. i always loved work and comfortable lodgings, and may say from the first to the last of my judicial days set myself to the improvement of both the work and the accommodation. some judges in their charges used to discourse with the grand jury of our foreign relations, turnips, or the state of trade; but i took a more humble theme at aylesbury, when i informed that august body that the quarters assigned to her majesty's judges were such that an officer would hardly think them good enough to billet soldiers in. "my rest, gentlemen, has been rudely disturbed," said i, "in the lodgings assigned to me. my bedroom was hardly accessible, on account of what appeared to be a dense fog which was difficult to struggle through. i sought refuge in the dressing-room. being a bitterly cold night and a very draughty room, some one had lighted a fire in it; but, unfortunately, all the smoke came down the chimney after going up a little way, bringing down as much soot as it could manage to lay hold of. all this is the fault of the antiquated chimneys and ill-contrived building generally. my marshal was the subject of equal discomfort; and i think i may congratulate you, gentlemen, not only on there being very few prisoners, but also on the fact that you are not holding an inquest on our bodies." the grand jury were good enough to say that there was "an institution called the standing joint committee, who will, no doubt, inquire into your lordship's subject of complaint." the "standing joint committee" sounded powerfully, but i believe no further notice was taken, and the question dropped. "that's a nice un," said one of the javelin-men at the door when a friend of his came out. "did yer 'ear that, jimmy? orkins is a nice un to talk about lodgings. let him look to his own cirkit--the 'orne cirkit--where my brother told me as at a trial at guildford the tenant of that there house wouldn't pay his rent. for why? because they was so pestered wi' wermin. and what do you think orkins told the jury?--he was counsel for the tenant.--'why,' he says, 'gentlemen, you heard what one of the witnesses said, how that the fleas was so outrageous that they ackshally stood on the backs o' the 'all chairs and barked at 'em as they come in.' that's orkins on his own circuit; and 'ere he is finding fault with our lodgings." it was not long after my arrival at lincoln, on the first occasion of my visiting that drowsy old ecclesiastical city, that i was waited upon, first by one benevolent body of gentlemen, and then another, all philanthropists seeking subscriptions for charitable objects. one bitterly cold morning i was standing in my robes with my back to the fire at my lodgings, waiting to step into the carriage on my way to court, when a very polite gentleman, who headed quite a body of other polite gentlemen, asked "if his lordship would do them the honour of receiving a deputation from the l. and b. skating club." i assented--nothing would give me more pleasure; and in filed the deputation, arranging themselves, hats in hand, round me in a semicircle. "we have the honour, my lord, to call upon your lordship in pursuance of a resolution passed last night at a special meeting of our club--" "what is the name of your club?" "the l. and b. skating club, my lord." "what is its object?" "_our_ object, my lord?" "no, the object of your _society_. i can guess your object." the leader answered with a smile of the greatest satisfaction,-- "er--skating, my lord." "your own amusement?" the head of the deputation bowed. "do you want _me_ to skate?" "no, my lord; but we take the liberty of asking your lordship to kindly support our club with a subscription." "when i see," i replied, "so much poverty and misery around me which needs actual relief, and when i look at this inclement weather and think how these poor creatures must suffer from the cold, it seems to me that _they_ are the people who should apply to those who have anything to bestow in charity; not those who are the only people, as it would appear, who can take pleasure in this excruciating weather. see if your club cannot do something for these poor sufferers instead of collecting merely for your own personal amusement; contribute to their necessities, and then come and see me again. i shall be here till monday." the head of the deputation stared, but it did not lose its presence of mind or forget its duty. the deputation made a little speech "thanking me heartily for the kind manner in which they had been received." i never saw anything more of them from that day to this. [in a case at devizes sir henry showed in a striking manner the character he always bore as a humane judge. he was not humane where cruelty was any part of the culprit's misdeeds, for he visited that with the punishment he thought it deserved, and his idea of that was on a somewhat considerable scale.] i was down upon cruelty, and always lenient where there were any mitigating circumstances whatever, either of mental weakness, great temptation, provocation, or unhappy surroundings. a woman was brought up before me who had been committed to take her trial on a charge of concealing the birth of a child. for prisoners in these circumstances i always felt great sympathy, and regarded the moral guilt as altogether unworthy of punishment. the law, however, was bound to be vindicated so far as the legal offence was concerned. she had already been in prison for three months, because she was too poor and too friendless to find bail. i am always pointing out that if magistrates would send more cases to the judges than they do, they would get some precedents as to the appropriate measure of punishment, which they seem badly to need. this woman had already been punished, without being found guilty, with three times the punishment she ought to have received had she been found guilty. a month's imprisonment would have been excessive. prisoners should always be released on their own recognizances where there is a reasonable expectation that they will appear. the result was that the unhappy woman, who had been punished severely while in the eye of the law she was innocent, was discharged when she was found to be guilty. we have seen how mr. justice maule examined a little boy as to his understanding the nature of an oath. i once examined a little girl upon a preliminary point of this kind, before she had arrived at that period of mental acuteness which enables one to understand exactly the meaning of the words uttered in the administration of the oath. the child was called, and after allowing the form of "the evidence you shall give," etc., and "kiss the book," to be gabbled over, i said, before the testament could reach the child's lips,-- "stop! do you understand what that gentleman has been saying?" "no, sir." i think it is a great farce to let little children be sworn who cannot be expected to understand even the language in which the oath is administered, to say nothing of the oath itself. how can they comprehend the meaning of the phrases employed? and many grown-up uneducated people are in the same situation. surely a simple form, such as, "_you swear to god to speak the truth_"--or, even better still, to make false evidence punishable without any oath at all--would be far better. chapter xxxiii. jack. i was always fond of dogs, and never cease to admire their intelligence and sagacity. my little jack was given to me when quite a puppy by my old and very dear friend lord falmouth. he was brought to me by lady falmouth, and from that time his history was my history, for his companionship was constant and faithful; in my hours of labour and of pleasure he was always with me, and i believe, if i had had any sorrows, he would have shared them as he did my pleasures--nay, these he enhanced more than i can tell. of course he invariably came circuit, and sat with me in my lodgings and on the bench, where he would patiently remain till the time came to close my notebook for the day. whether he liked it or not i am unable to say, but he seemed to take an interest in the proceedings. about this, however, his reminiscences will speak for themselves. he always occupied the seat of honour in the sheriff's carriage, and walked to it with a dignity worthy the occasion. i am glad to say the judges all loved jack, and treated him most kindly, not for my sake, but, i believe, for his own--although, i may add in passing, he sometimes gave them a pretty loud rebuke if they showed any approach to ill-humour on an occasional want of punctuality in coming into court. some of them were exceedingly particular in being up to time to a _moment_; and i should have equal to the occasion at all times, but that i had to give jack a run before we started for the duties of the day. it was necessary for his health and good behaviour. on circuit, of course, whenever there was little to do--i am speaking of the midland particularly, although the western was quite as pleasant--i gave him longer runs. for instance, in warwick park nothing could be more beautiful than to loiter there on a summer morning amongst the cedars on the beautiful lawn. it may seem unreasonable to say so, but jack almost seemed to be endowed with human instincts. he was as restless as i was over long, windy speeches and cross-examinations that were more adapted for the smoking-room of a club than a court of justice; and in order to repress any tendency to manifest his displeasure i gave him plenty of exercise in the open air, which made him sleep generally when counsel began to speak. having mentioned the commencement of my companionship with jack, which in these reminiscences i would on no account omit, i shall let him hereafter tell his own experience in his own way. jack's reminiscences. i was born into the family of my lord falmouth, and claim descent from the most well bred of my race in this kingdom, the smooth fox terrier. all my ancestors were noted for their love of sport, their keen sense of humour, and hatred of vermin. at a very early period of my infancy i was presented to sir henry hawkins, one of her majesty's judges of the high court, who took a great fancy to me, and, if i may say so without appearing to be vain, at once adopted me as his companion and a member of his family. sir henry, or, as i prefer to call him, my lord, treated me with the sweetest kindness, and i went with him wherever it was possible for him to take me. at first my youthful waywardness and love of freedom--for that is inherent in our race--compelled him to restrain me by a string, which i sometimes pulled with such violence that my lord had to run; and on seeing us so amusing ourselves one morning, old lord grimthorpe, i think they called him, who was always full of good-natured chaff, cried out,-- "halloa, hawkins! what, has jack made you his prisoner? ha! ha! hold him, jack; don't let him get away!" well, this went on for several weeks, what i think you call chaff, and at last i was allowed to go without the string. it happened that on the very first morning when i was thus given my liberty, whom should we meet but this same old lord grimthorpe. "halloa!" he cries again--"halloa, hawkins! does your keeper let you go without being attached to a string?" "no, no," says my lord--"no, no; jack's attached to _me_ now." thereupon dear old grimthorpe, who loved a joke, laughed till his elbows rested on his knees as he stooped down. "well," said he, "that's good, hawkins, very good indeed." on one occasion one of those country yokels who always met us at assize towns, and got as close up to our javelin-men as they could, so that we could not only see them but indulge our other senses at the same time, seeing us get out of our carriage, said to another yokel, "i say, bill, blarmed if the old bloke ain't brought his dawg again--that there fox terrier--to go a-rattin'." i did not know what "rattin'" meant at that time, and did not learn it till we got to warwick. i thought it was rude to call my lord a "bloke," especially in his red robes; but did not quite know what "bloke" meant, for i had seen so little of mankind. one morning before we opened the commission at warwick--i may as well come to it at once--my lord and i went for a walk along the road that leads over the bridge by warwick castle towards leamington. there is a turning to a village which belonged to the old days, but does not seem now to belong to anything, and looks something like a rural watering-place, quiet and unexciting. we turned down this quiet road, and came alongside a beautiful little garden covered with flowers of all kinds. i had occasion afterwards to learn whom they belonged to; but i will tell you before we go further, so as to make the situation intelligible. he was a countryman who used to make it his boast that he never had a day's schooling in his life (so that he ought to have been leader of the most ignorant classes), and this made him the independent man he was towards his betters. then my lady warwick used to take notice of him, and this also gave him another lift in his own estimation. he learnt to read in the long run, for he really had a good deal of native talent for a man, and set himself up for a politician and a something they call a philosopher, which any man can be with a pint pot in front of him, i am told, especially at a village alehouse. he was a great orator at the gridiron beershop in the lane which runs round one part of my lord warwick's park, and it was said that old gale--such was his name--had picked up most of his education from his own speeches. gale was also the lawyer of the village--he could tell everybody what his rights were, if anybody had any besides gale; but he declared he had been done out of _his_ rights by a man who had lent his old father some money on the bit of land i am coming to. as we went along, what should we see but a rat! i knew what he was in a moment, although i had never seen such a thing before, and knew i had to hunt him. my lord cries, "_cis_!--_rat, jack_--_rats_!" away i went after the rat--i did not care what his name was--and sir henry after me, with all the exuberance he used to show when he was following the "quorn." presently we heard the dreadful orator's voice using language only uttered, i am glad to say, amongst men. "where the h--l are you coming to like this?" he cried. i forgot to say that our marshal was with us, and of course he took upon himself to explain how matters stood; indeed, it was one of his duties when judges went out a-ratting to explain _who_ they were. so when we arrived at the place where they were talking together, i heard the dreadful man say,-- "judge o' th' land! he ain't much of a judge o' th' land to tear my flowers to pieces like that. look at these 'ere toolips." the marshal explained how that it was for the improvement of sir henry hawkins's health that a little fresh air was taken every morning. "lookee 'ere," says gale, "i didn't know it wur the judge doin' me the honour to tear my flower-beds to pieces. i bin workin' at these 'ere beds for months, and here they are spilt in a minit; but i tell ee what, orkins or no orkins, he ain't gwine to play hell with my flower-beds like that 'ere. if he wants the ground for public improvement, as you call it, well, you can take it under the act. there's room enough for improvement, i dessay." now, instead of his lordship sending the man to prison, as i thought to be sure he must do, he speaks to him as mild as a lamb, and tells him he commends his spirit, and actually asks him what he valued the flowers at. a judge condescending to do that! this mollified the old man's temper, and turned away his flowery wrath, so he said at once he wasn't the man to make a profit out o' the circum_starnce_; but right was right, and wrong worn't no man's right, with a great many other proverbs of a like nature, which are as hard to get rid of amongst men and women as precedents amongst judges; and then the old man, much against his will and inclination, had a sovereign forced upon him by our marshal, which he put into his pocket, and then accompanied us to the gate. now came this remarkable circumstance. when we got back to our lodgings after being "churched," what should we find but a beautiful nosegay of cut flowers in our drawing-room from old gale, and every morning came a similar token of his good-nature and admiration while we were there, and the same whenever we went on that circuit. one of our servants was kind enough to make me a set of robes exactly like my lord's, which i used to wear in the court of crown cases reserved and at high functions, such as the queen's birthday or chancellor's breakfast. in court i always appeared in mufti on ordinary occasions--that is to say, i did not appear at all ostentatiously, like some men, but sat quietly on my lord's robe close to his chair. i well remember one occasion while we were at hereford, a very pompous and extremely proper town, as all cathedral cities are; my lord and i were robed for the reception of the high sheriff (as he is called) and his chaplain, who were presently coming with the great carriage to take us to be churched before we charged the grand jury. hereford is a very stately place, and enjoys a very high opinion of its own importance in the world. it is almost too respectable to admit of the least frivolity in any circumstances. you always seemed to be going to church at hereford, or just coming out--the latter was nicest--so that there was, in my time, a sedateness only to be equalled by the hardness of a brazil nut, which would ruin even my teeth to crack. i don't know if that is a proper way in which to describe a solid herefordian; but if so, judge of the high sheriff's surprise, as well as that of the chaplain, when i walked by the side of my lord into our drawing-room! i never saw a clergyman look so glum! we were both in robes, as i observed, and my lord was so pleased with my appearance that he held me up for the two dignitaries to admire. but hereford does not admire other people; they confine their admirations within their own precincts. on our way from the station to our lodgings, i ought to have said, both these gentlemen were full of praises. who would not admire a judge's companion? although sheriff and chaplain were highly proper, the former could not restrain a hearty laugh, while the latter tightened his lips with a reproving smile. but then the chaplain, with a proper reverence for the state function, afterwards looked very straight down his nose, and, hemming a little, ventured to say,-- "my lord, are you _really_ going to take the little dog to divine service in the cathedral?" my lord looked quite astonished at the question, and then put his face down to me and pretended to whisper and then to listen. afterwards he said,-- "no. jack says not to-day; he doesn't like long sermons." the chaplain would much rather i had gone to church than have heard such a reprimand. but this is not quite the end of my reminiscence. i heard on the best authority that the sermon of the chaplain on that morning was the _shortest he had ever preached_ as an assize discourse, and my lord attributed it entirely to my supposed observation on that subject, so that my presence, at all events, was useful. i have always observed that lesser dignitaries are more jealous of their dignity than greater ones. here was an excellent example of it. the chaplain looked very severe, but when this little story reached the ears of the good bishop atlay he was delighted, and wished to see me. i was becoming famous. i made my call in due course, and let him see that a judge's dog was not to be put down by a mere chaplain, and came away much gratified with his lordship's politeness. after this, during our stay in the city, the bishop gave me the run of his beautiful new garden along the riverside. and there my lord and i used to gambol for an hour after our duties in court were over. this lovely garden was an additional pleasure to me, because i was relieved from a muzzle. there was only one thing wanting: the bishop kept no rats. after this his lordship never saw my lord without asking the question, "how's dear jack?" which showed how much a bishop could respect a little dog, and how much superior he was to a chaplain. i heard him say once we were all god's creatures, but that, of course, i was not able to understand at the time. i did not know if it included the chaplain. i think i must now tell a little story of myself, if you will not think me conceited. it is about a small matter that happened at cambridge. one day a very amiable but dreadfully noisy advocate was cross-examining a witness, as i thought, rather angrily, because the man would not say exactly what he wanted him to say. my lord did not take notice of this, and it went on until i thought i would call his attention to the counsel's manner, and, accordingly, gave a growl--merely a growl of inquiry. brown--which was the counsel's name--was a little startled at this unexpected remonstrance, and paused, looking up at the judge. "go on," said my lord--"go on, pray," pretending not to know the cause of the interruption. he went on accordingly for a considerable time, with a very noisy speech--so noisy that one could not hear one's self bark, which i did two or three times without any effect. however, at last i made one of my best efforts. but this was bad policy, inasmuch as it attracted too much attention to myself, who had been hitherto unseen. my lord, however, thanks to his presence of mind, had the kindness to say,-- "dear me! i wish people would not bring their dogs into court." then turning to our marshal, he said, "take jack into baron pollock's room"--the baron had just gone in to lunch, for he was always punctual to a minute--"and ask him to give him a mutton-chop." and when, five minutes later, my lord came in, the baron was enjoying his chop, and i was eating my lord's. in another court the judge administered a well-timed rebuke to a flippant and very egotistical counsel, and i could hardly restrain myself from administering another. during the progress of a dreadfully long address to the jury for the defence, he said,-- "why, gentlemen, there is not sufficient evidence against the prisoner _on which to hang a dog_." "and how much evidence, mr. ----, would you consider sufficient to hang a dog?" "that would depend, my lord, as to whom the dog belonged." i thought how like human nature that young man was. i used to have a very good view of all that took place in court, and could tell some very funny as well as interesting stories about persons i have seen. one day i was amused _so_ much that, had i not remembered where i was, i must, like my friends mentioned by robert burns in his "twa dogs," have "barked wi' joy," because i thought it so strange. here was a queen's counsel, a man of so proper a countenance that i do not think it ever smiled in its life, and so very devoted to his profession that he would never think of leaving it to go to a racecourse. i should have as soon expected to meet him in our dogs' home looking for a greyhound to go coursing with on primrose hill,--and here he was standing up on his hind legs, and making an application to the court which my lord was never in his life known to grant. it was the night before the derby, and we always took care to have a full list of cases for that wednesday, for _fear_ the public should think we went to the derby and left the work to look after itself. we generally had about a dozen in pretty early in the afternoon of tuesday, so that the suitors and witnesses, solicitors and all others whom it concerned, might know where they were, and that _they_ could not go to the derby the following day. what a scene it was as soon as this list was published! i used to sit and watch the various applicants sidle into their seats with the most sheepish faces for men i ever saw. in came the first gentleman, flustered with excitement. "would your lordship allow me to make an application?" "yes," said my lord--"yes; i see no objection. what is your application, mr. ----?" i will not give his name. "there is a case, my lord, in to-morrow's list--number ten. it is quite impossible, seeing the number of cases before it, that that case can be reached." "if that is so," said my lord, "there is no necessity for making any application--if you know it is impossible to reach it, i mean to say--" "it is _ex abundanti cautela_, my lord." i think that was the expression, but, as it is not dog-latin, i am not sure. "it is a good horse to run, i dare say," said my lord, "but i don't think he'll win this time." the counsel shook his head and would have smiled, i could see that, only he was disappointed. i felt sorry for him, because his clients had made arrangements to go to the derby. as he was turning disconsolately away my lord spoke with a little more encouragement in his tone and a quiet smile. "we will see later, mr. ----. is your client _unable_ to appear to-morrow?" "i'm afraid so, my lord, quite." "have you a doctor's certificate?" "i am afraid not, my lord; he is not ill." "then you can renew the application later; but understand, i am _determined to get through the list_." that was so like my lord; nothing would turn him from his resolution, if he sat till midnight, and i nearly barked with admiration. then came number six on the list, with the same complaint that it was not likely to be reached. "i'm not so sure," said sir henry. "i have just refused number ten; yours is a long way before that. some of the previous ones may go off very soon; there does not seem to be anything _very long_ in front of you, mr. ----. what's your difficulty about being here?" "the real difficulty, my lord--" and as he hesitated the judge said,-- "you want to be elsewhere?" "frankly, my lord, that is so." "very well; if both sides are agreed, i have no objection. if i am not trying your case i shall be trying some one else's, and it is a matter of perfect indifference to me whose case it is." an hour after in came a brisk junior stating that his leader was unavoidably absent. "what is the application, mr. wallsend?" "there's a case on your lordship's list for to-morrow, my lord." "yes. what number?" "number seven, my lord. i am told number six is a long case, and sure to be fought. my application is that, as that case will last over friday--" "friday? why friday?" there was a little laughter, because it happened to be the oaks day. "i'm told it's a long case, my lord." "yes, but number six has gone, so that you will stand an excellent chance of coming on about two o'clock, perhaps a little before. what is the nature of your case?" "illegal imprisonment, my lord." "very well; if it is any convenience to you, mr. wallsend, i will take it last." by the look of the young man it seemed of no great convenience. "that will give your witnesses time to be here, i hope." the counsel shook his head, and then began to say that the fact was that his client had an engagement, and his lordship would see it was the great race of the year. "i do not like these applications made in this random manner. i am willing to oblige the parties in all cases if i can, but these constant motions to postpone interfere very much with the public convenience, and i mean to say that the public are to be considered." now came the gentleman who never attended races, and devoted himself to business. he could not have told you the name of a horse to save his life. but he also made his application to postpone a case until thursday. delightful day, thursday; such a convenient day, too--between the derby and the oaks. said my lord, who was very friendly to the learned counsel, and liked him not only as a member of his old circuit, but as a brother bencher and a clever advocate,-- "oh, i see; i see where _you_ want to be to-morrow." "my lord!" it was no use; in spite of the gentleman's remonstrance and protestations, he said,-- "you may go, mr. ----, and i hope you will enjoy yourself." i need hardly say nothing was left of the list by twelve o'clock the next day, and sir henry had the honour of going in the royal train and dining at marlborough house in the evening. i ought, perhaps, to mention that there was a case proceeding when all these interruptions took place. i don't know the name, but two counsel were in it, one of whom was remarkable for the soul of wit which is called _brevity_, and the other was not. one was frank lockwood, q.c., a very amusing counsel, whom i always liked, because he often sketched me and my lord in pen and ink. mr. jelf, q.c., was the other learned counsel. although i liked most of the barristers, i often wished i could teach them the invaluable lesson _when to leave off_. it would have saved many a verdict, and given me the opportunity of hearing my own voice. lockwood was cross-examining, and appeared to me dealing rather seriously with jelf's witnesses, who were a pious body of gentlemen, and prided themselves, above all things, on speaking the truth, as though it was a great credit not to commit perjury. at last mr. jelf, tired with being routed in so ruthless a manner, cried in a lamentable voice,-- "pray, pray, mr. lockwood!" "so i do," said lockwood--"so i do, mr. jelf, at fitting and proper times." chapter xxxiv. two tragedies. [the _daily telegraph_, speaking of the necessity for justice sometimes "to strip the bandage from her eyes and look into the real merits of a case, mentions the following case as showing sir henry's unequalled knowledge of human nature and the sound equity of his decrees:-- "a young, respectable woman had been led away by a villain, who was already married, and under a promise of marriage had betrayed her. he induced her to elope with him, and suggested that she should tear a cheque out of her father's cheque-book and forge his name. so completely was she under his influence that she did so. he sent her to different banks to try and cash it, but it was not till she got to a local bank, where she was known, that this was accomplished. the cheque was for £ . but the seducer never obtained the money; the girl was apprehended before she reached him. "sir henry openly expressed his strong sympathy for the unhappy girl, and ordered her to be bound over in her own recognizance of £ , to come up for judgment when called upon."] during the early years of my tenure of office as a criminal judge i became, and still am, firmly impressed with the belief that to enable one filling that office to discharge the twofold duty attached to it--namely, that of trying the issue whether the crime imputed to the prisoner has been established by legal evidence, and if so, what punishment ought to be imposed upon the prisoner, assuming the presiding judge to be the person to determine it--it is absolutely essential that he should keep the whole of the circumstances in his mind and carefully weigh every fact which either forms an element in the constitution of the offence itself or has a substantial bearing as affecting the aggravation or mitigation of the punishment; for it is not only essential that these matters should be known to and appreciated by the judge who tried the case, but that they may be also presented for the information of the home secretary, who ought to be acquainted with them, so that he may form a satisfactory view of the whole of the circumstances surrounding the case. a strange story that will ever stand out in my memory as one of the most dramatic of my life was that of a young lady who was a professional nurse at the general hospital at liverpool. she was young, clever, and, i believe, beautiful, as well as esteemed and loved by all who knew her. she had become engaged to an engineer, and it had been arranged that she should pay a visit to her mother in nottingham on a friday, so as to acquaint her with their engagement, the intended husband having arranged to come on the following monday. the parents were poor, respectable people, and the girl herself was poor, so that she had no change of attire, but went in her professional nurse's dress. it was her intention, however, to buy an ordinary dress at nottingham. there was a dressmaker in that city whom her mother knew, and with whose children in their early days her daughter had played. accordingly in the evening the nurse with a younger sister went to the cottage to make the necessary arrangements. while she was there the son of the dressmaker came in, and was at once attracted by the beauty and the manner of the girl. as they had known one another in childhood, it was not surprising that they should talk with more familiarity than would have been the case had they been strangers. when the nurse rose to go, the young man asked permission to accompany her to her mother's. she declined, but he persisted in his request. this man was a clever mechanic, and had invented a machine for making chenille. sad to say, this invention he used for the purpose of inveigling the girl into his workshop, which was situated on the second floor of an extensive range of warehouses in a yard at nottingham. he asked her to come on the monday morning, and when she informed him that her lover was to come by the . train at nottingham station, he said if she came at eleven she would have plenty of time to see his invention, and then meet him. she at last consented. i now come to a series of facts of a sensational character. on the monday morning she went, according to the appointment, and was seen to go with this man up a flight of steps which led from the yard to the first floor. the door opened on to the landing outwardly. in about a quarter of an hour after she was seen staggering down the steps, and crossing the yard in the direction of the street. in the street she fell, and was conveyed to a neighbouring house. she was afterwards taken to a hospital. in the course of some minutes the man himself came down the steps, and was informed that a girl had been seen coming out of his premises bleeding, and had been taken to a cottage. "was there?" said he, and walked away. in the afternoon he was apprehended. he said he was very sorry, but that he was showing the girl a little toy pistol, and that it had gone off: quite accidentally. he wished to be taken to the hospital where she was. the magistrate in the meanwhile had been informed of the occurrence, and with his clerk attended at the hospital to take her dying deposition. there was an amount of skill and ability about the prisoner which was somewhat surprising to me, who am seldom surprised at anything. "did you not think it was an accident?" he asked. the dying girl answered, "yes." in re-examination by the magistrate's clerk at the end of the business, the following answer was elicited,-- "i thought it was an accident before the second shot was fired." the extraordinary part of this story, to my mind, is that the able counsel--and able he indeed was who defended him--treated the matter as the most frivolous prosecution that was ever instituted. i know that he almost laughed at the idea of murder, and, further, that the junior counsel for the prosecution treated the charge in the same manner, and said that, in his opinion, there was no case. the man was indicted for wilful murder, and i am bound to say, after reading the depositions, i could come to no other conclusion than that he was guilty of the most cruel and deliberate murder, if the depositions were correct. i went with the counsel on both sides to view the scene of the tragedy, and it was agreed that the counsel for the prosecution should indicate as well as he could the case for the crown by merely stating undisputed facts in connection with the premises. the flight of steps, as i have said, led from the courtyard to the first landing. the door opened outwards, and the first visible piece of evidence was that some violence had been exercised in forcing open the door on the occasion of some one making his or her escape from the building, for the staple into which the bolt of the lock had been thrust showed that the door had been locked on the inside, and that the person coming from the premises must have used considerable force in breaking through. the key was not in the lock, neither had it fallen out, or it would have been found somewhere near. it had evidently been taken out and secreted, because it was found at the bottom of a dustbin a long way off from the staircase and in the room occupied by the prisoner. there was one additional fact at this part of the view which i must mention. a bullet was picked up near the door. it had struck the opposite wall, and then glanced off and hit the other wall close to the door. the bullet had been fired from the landing above; this was indicated by the direction as it glanced along the wall, and, further, by the mark it had left of its line of flight from the landing above, for it had struck against the low ceiling of that spot as though the person firing had fired in a hurry and had not taken sufficient aim to avoid it. it might be taken, therefore, that the person firing was not used to firearms, or he would not have hit what might be called the ceiling. the bullet was produced by the chief constable. on reaching the second landing, the mark of the bullet in the lintel showed clearly that it had been fired in the direction of some object below--some one, probably, descending the stairs. on turning into the factory on this floor, which was quite empty, i saw on the wall near the doorway the mark of another bullet which had rested near and was found by the police. it was a bad aim, and showed, therefore, that the person who fired it was unused to firearms. we went to the next room, into which we ascended by six steps; it was clear that it was from the head of these stairs that the course of the bullet was directed; its elevated position and the angle of incidence showed this. but as neither of these bullets had struck the deceased, for there was no mark of any kind to prove it, there was another bullet to be accounted for, and as the prisoner said that the pistol went off by accident, two or three matters had to be considered. where was the spot where the accident occurred? and was aim actually taken? the bullet had entered the hinder part of the neck, had taken a downward direction, and lodged in the spine. it did not, therefore, go off while he was explaining the pistol to her, otherwise it would have struck her at any other place than where it did. moreover, she had run in a state of intense fright the moment she was wounded--had commenced to run before, in fact, having escaped from the clutches of her murderer, for the skirt of her dress was torn from the gathers. it was proved that the prisoner had bought the pistol on the saturday night, that he was unused to firearms, for he had to ask the man who sold it to explain the mode of using it. he was heard practising with it on sunday, and when the accident occurred it was proved that the interval between the first and second shots exactly accounted for the space which intervened between the respective spots where the firing must have taken place. much was made of the fact that the poor girl had said she thought it was an accident, but i had to call the learned counsel's attention to the statement at the end of her examination, which was this: "i thought at first it was an accident, for i could not believe he could be so cruel, but after the _second shot_ i believed he meant to kill me." a somewhat novel incident occurred during the examination for the prosecution. a wire stand had been dressed with the girl's clothes to show where the lower part of the dress had been torn from the gathers. it was placed on the table, and no doubt exactly resembled the girl herself. the prisoner was so much affected that he shuddered, and had to be supported. he was condemned to death. in the house of commons and out of it sympathy was, of course, aroused, not for the unhappy girl who had been sent suddenly to her account, but for the lustful brute who had murdered her. a question was asked of the secretary of state for the home department as to the prisoner being insane, and whether there was not abundant evidence of insanity at the trial. the counsel for the prosecution wrote to the home secretary and requested him to lay his letter before the prisoner's counsel to ascertain whether he agreed with it. the letter was to this effect: "not only was there no evidence of insanity, but the prisoner's counsel based his defence entirely upon the fact that there was no suggestion that the man was or ever had been insane. he must have been insane, argued the counsel, if he had committed a brutal murder of that kind; there was no insanity, and therefore it was an accident." the humane questioner of the home secretary left the prisoner after that statement to his well-deserved fate. * * * * * i recollect at one gloucester assize a man was tried before me for the murder of a woman near bristol. the prisoner had given his account of the tragedy, and said he had made up his mind to kill the first woman he met alone and unprotected; that is to say, he had made up his mind to kill somebody when there was no witness of the deed. humanitarians for murderers might call this insanity. he went forth on his mission, and saw a woman coming towards him with a baby. he instantly resolved to kill both, and probably would have done so but for the fact that some one was seen coming towards him in the distance. the woman and child therefore escaped, the person he had seen in the distance also passed by, and then he waited in the lane alone. in a little time a poor woman came along. the ruffian instantly seized her, cut her throat, and killed her on the spot. no sooner had he accomplished his purpose than a young farmer drove along in his cart, and seeing the dead body in the road, and the murderer a little way off, jumped out of his cart and arrested him. a little farther on the road there was a labouring man, who had not been visible up to this moment, breaking stones. "look after this man," said the farmer; "he has committed murder. keep him safe while i go to the village and get a constable." "all right," said the labourer; "i'll keep un." as soon as the farmer was gone the labourer and the murderer got into conversation, for they had to while away the time until the farmer had procured the constable. "why," asked the stone-breaker, "what have you been a-doin' of?" "killin' a woman," answered the murderer. "killin' a woman!" said the mason. "why, what did you want to kill a woman for? she warn't your wife, was she?" "nay," answered the murderer, "or i should ha' killed her afore." the want of motive is always a strong argument with humanitarians, who pity the murderer and not the victim. i heard no particle of sympathy expressed for the poor woman, but there was abundance of commiseration for the fiend who had perpetrated the terrible deed. there never was any _adequate_ motive for murder, but there was never a deed committed or any act performed without motive. insanity on the ground of absence of motive was set up as a matter of course, but insanity should be based on proof apart from the cruelty of the act itself. it was a premeditated crime, a bloodthirsty desire to wreak his malice on some one; but beyond the act, beyond the malignant disposition of the man, there was no evidence whatever of insanity. i refused to recommend him to the royal clemency on that ground, or on any ground, for there was not the smallest pretence for saying it was not a deliberate cold-blooded murder. and the man was rightly hanged. society should be protected from murderers. this may be hard dealing with the enemies of society, but it is just to society itself. i was never hard on a prisoner. the least circumstance in mitigation found in me a hearty reception, but cruelty in man or woman an unflinching judge. take another case. in gloucestershire a man was convicted of killing a girl by stabbing her in no less than thirty-eight places. again the humanitarians besieged the home secretary. "no man in his senses would have been so cruel; and there was his conduct in the dock: he was so wild, so incoherent. there was also his conduct in the field where he had committed the deed: he called the attention of the passers-by to his having killed her." and, last of all, "there was the doctor whom the home secretary had consulted after the trial." i was appealed to, and stated my opinion honestly: that i had closely watched the man at the trial, and was satisfied that he was shamming insanity. and he shammed it so awkwardly that there was no doubt whatever that he was sane. another judge was asked about the case who saw only the evidence, and he came to the same conclusion; and i was compelled to report that the doctor who certified that he was insane did so _without having seen him_ as the doctors for the prosecution had at the trial and before. he was hanged. chapter xxxv. the st. neots case. this is the last trial for murder that i presided over. the object is not to show the horrible details of the deed, but my mode of dealing with the facts, for it is in the elimination of the false from the true that the work of a judge must consist, otherwise his office is a useless form. i shall give this case, therefore, more in detail than i otherwise should. the case was that of horsford, in the year , at huntingdon assizes. i say now, long after the event, the murderer was not improperly described by the _daily news_ as the greatest monster of our criminal annals, and yet even in that case some kind-hearted people said i had gone quite _to the limits of a judge's rights_ in summing up the case. let me say a word about circumstantial evidence. some writers have spoken of it as a kind of "dangerous innovation in our criminal procedure." it is actually almost the only evidence that is obtainable in all great crimes, and it is the best and most reliable. you may draw wrong impressions from it, i grant, but so you may from the evidence of witnesses where it is _doubtful_; but you cannot fail to draw the right ones where the facts are not doubtful. if it is capable of a wrong inference, a judge should be absolutely positive in his direction to the jury not to draw it. i have witnessed many great trials for murder, but do not remember one where there was an eye-witness to the deed. how is it possible, then, to bring home the charge to the culprit unless you rely on circumstantial evidence? circumstantial evidence is the evidence of circumstances--facts that speak for themselves and that cannot be contradicted. circumstances have no motive to deceive, while human testimony is too often the product of every kind of motive. the history of this case is extremely simple. the accused, walter horsford, aged thirty-six, was a farmer of spaldwick. the person murdered, annie holmes, was a widow whose age was thirty-eight years. she had resided for several months at st. neots, where she died on the night of january . she had been married, and lost her husband thirteen years ago. on his death he left two children, annie and percy. the latter was sixteen years of age and the girl fourteen. the prisoner was a cousin of the deceased woman. while she lived at stonely the man had been in the habit of visiting her, and had become an intimate member of the family. in the month of october the prisoner was married to a young woman named bessie ----. the widow with her two children, and a third, which it would be idle affectation to suggest was the offspring of her late husband, went to reside at st. neots in a cottage rented at about £ a year. the prisoner wrote to annie holmes on at least two occasions. towards the close of the year annie holmes suspected herself to be pregnant. she was anxious not to bring another child into the world, and had some communication with the prisoner on the subject. on january he wrote to her that he would come and make some arrangement. the woman was deceived as to her condition, but that made no difference with regard to the crime. the letter went on to state: "you must remember i paid you for what i done.... don't write any more letters, for i don't want bessie to know." on december he purchased from a chemist to whom he was a stranger, and who lived at thrapston, a quantity of poison, alleging that he wanted to poison rats. prisoner called in a gentleman as a reference to his respectability, as the chemist had refused to sell him the poison without. at last a small parcel was supplied. it was entered in a book with the prisoner's name, and he signed the book, as did also the gentleman who was his introducer. the poison was strychnine, arsenic, prussic acid, and carbolic acid. no less than grains of strychnine were supplied. he had written to say he would come over on the friday which followed january . there is no reason to suppose he did not fulfil his promise. on the friday the woman was suffering from neuralgia. in the evening, however, she was in her usual health and spirits, and did her ironing up to eight o'clock. she went to bed between half-past nine and ten, and took with her a tumbler of water. in ten minutes the little girl and her brother went upstairs. they went to the mother, who was in bed with her child. the tumbler was nearly empty. the mother asked for a "sweet," which the little girl gave. after this annie got into bed; the mother began to twitch her arms and legs, and seemed in great pain. dr. turner was sent for, as she got worse. his assistant, dr. anderson, came, and, watching the patient, noticed that the symptoms were those of strychnine poisoning. she was dying. before he could get to the surgery and return with an antidote the woman was dead. she who had been well at half-past nine was dead before eleven! the police were communicated with, and a constable searched the house. turning up the valances of the bed, he found a piece of paper crumpled up; this was sent to an analyst on the following day. an inquest was held and a post-mortem directed. horsford at the inquest swore that he had never written to the deceased or visited her. on the evening of saturday the th, after the post-mortem, mrs. hensman and another woman found between the mattress and the bed a packet of papers. these were also submitted for analysis. one of them contained grains of strychnine; another had crystals of strychnine upon it. there was writing on one of the packets, and it was the handwriting of the prisoner; it said, "take in a little water; it is quite harmless. will come over in a day or two." on another packet was written: "one dose; take as told," also in the prisoner's handwriting. the body had been buried and was exhumed. three grains of strychnine were found by the county analyst in such parts of the stomach as were submitted to him. dr. stevenson took other parts to london, and the conclusion he came to was that at least grains must have been in the body at the time of death, while / grain has been known to be fatal. there was a singular circumstance in the defence of this case, one which i have never heard before or since, and that was a complaint that the counsel for the prisoner was "twitted" by the crown because he had not called _evidence for the defence_. the jury were solemnly asked to remember that if one jot or tittle of evidence had been put forward, or a single document put in by him, the prisoner's counsel, he would _lose the last word on behalf of the prisoner_! of course, counsel's last word may be of more value than some evidence; but the smallest "jot or tittle" of evidence, or any document whatever that even _tends_ to prove the innocence of the accused, is of more value than a thousand last words of the most powerful speaker i have ever listened to. and i would go further and say that evidence in favour of a prisoner should never be kept back for the sake of the last word. it is the bounden duty of counsel to produce it, especially where evidence is so strong that no speech could save the prisoner. neither side should keep back evidence in a prisoner's favour. i said to the jury,-- "we are assembled in the presence of god to fulfil one of the most solemn obligations it is possible to fulfil, and i will to the best of my ability assist you to arrive at an honest and just conclusion. "the law is that if a man deliberately or designedly administers, or causes to be administered, a fatal poison to procure abortion, whether the woman be pregnant or not, and she dies of it, the crime is wilful murder. "you have been asked to form a bad opinion of this deceased woman, but she had brought up her children respectably on her slender means, and there was no evidence that she was a loose woman. it more than pained me when i heard the learned counsel--_instructed by the prisoner_--cross-examine that poor little girl, left an orphan by the death of the mother, with a view to creating an impression that the poor dead creature was a person of shameless character. "again, counsel has commented in unkind terms on the deceased woman, and said the prisoner _had no motive_ in committing this crime on a woman whom he valued at half a crown. "he might not, it is true, care half a crown for her. it is not a question as to what he valued the woman at; we are not trying that at all; but it showed there _was_ a motive. "i have not admitted a statement which the woman made while in her dying state, because she may not fully have realized her condition. probably you will have no doubt that, by whomsoever this fatal dose was administered, there is only known to medical science one poison which will produce the symptoms of this woman's dying agonies. one thing is surprising at this stage--that immediately after death the door of the house was not locked, and while the body was upon the bed a paper of no importance was found, and that afterwards several relatives went in. the object of the cross-examination was to show that some evil-disposed person had entered the house and placed things there _without any motive_. but whoever may have gone into that house, there was one person who _did not go_--one who, above all others, owed deceased some respect--and that is the prisoner; and unless you can wipe out the half-crown letter from your mind, you would have expected a man on those intimate terms with the poor woman to have gone and made some inquiries concerning her death. he did not go; he was at the falcon hotel at huntingdon, and a telegram was sent telling him to fail not to be at the inquest. "at the inquest he told a deliberate lie, for he swore he had never written to the woman, or sent her anything, or been on familiar terms with her. he had written to her, and if his letter did not prove familiar terms, there was no meaning in language. "with regard to the prisoner's alleged handwriting on the packets and papers found under the woman's bed and elsewhere, i must point out to you that here is one on which is written, 'take in a little water; it is quite harmless. will come over in a day or two.' "this was written on a buff paper, which dr. stevenson said must have contained grains of strychnine, sufficient to kill thirty-five persons, and the direction written was, 'one dose; take as told.' "these inscriptions were sworn to by experts as being in the prisoner's handwriting." here i pointed out the alleged resemblances in the characters of the letters, so that the jury might judge if the prisoner wrote them. "if the prisoner wrote the words 'take as told,' you must ask yourselves the meaning of it. "also, you will ask whether it was not a little strange that the death occurred on that very friday night when he said he would go over and see her. again, the word 'harmless' is of the gravest character, seeing that within the folds of that paper were grains of a deadly powder, which even for rat-powder would be mixed with something else. "again, as to motive, upon which so much stress has been laid by the defendant's counsel. if the prisoner had no motive, who else had? is there a human being on earth who had ill-will towards her, or anything to gain by her death? the learned counsel carefully avoided suggesting any one; nor could he suggest that any one in the neighbourhood wrote the same handwriting as the prisoner. i will dismiss the theory that some one had imitated the prisoner's writing in order to do him an injury, and ask if you can see any reason for any one else giving the woman the powder. "there is one fact beyond all dispute: in december the prisoner bought a shilling's worth of strychnine. he said he bought it for rats, but no one on the farm had been called to prove it. what has been done with the rest of the powder? "where was he on that friday? his counsel said he could not prove an _alibi_. but if he was at spaldwick after saying he was going to st. neots to see this poor woman, he _could_ have proved it. "the prisoner's counsel said that the accused did not speak of the woman's murder after the inquest, and said it was not necessary; he did not understand the 'familiar jargon' of the law courts. "the familiar jargon of the law courts, gentlemen, is not quite the phrase to use with reference to our judicial proceedings. the law courts are the bulwark of our liberties, our life, and our property. our welfare would be jeopardized, indeed, if you dismiss what takes place in them as 'familiar jargon.' "the question is whether the charge has been so reasonably brought home to the prisoner as to lead you in your consciences to believe that he is guilty. if so, it is your duty to god, your duty to society, and your duty to yourselves, to say so." such was the summing up that was arraigned by the humanitarian partisans of the prisoner. if a judge may not deal with the fallacies of a defence by placing before the jury the true trend of the evidence, what other business has he on the bench? and it was for thus clearly defining the issue that some one suggested a petition for a reprieve, on the ground that the evidence was _purely circumstantial_, and that my "summing up was against _the weight of the evidence_." truly a strange thing that circumstances by themselves shall have no weight. but there was another strange incident in this remarkable trial: _the jury thanked me for the pains i had taken in the case_. i told them i looked for no thanks, but was grateful, nevertheless. i have learnt that the jury, on retiring, deposited every one on a slip of paper the word "guilty" without any previous consultation--a sufficient indication of their opinion of the _weight_ of the evidence. this was the last case of any importance which i tried on circuit, and if any trial could show the value of circumstantial evidence, it was this one. it left the identity of the prisoner and the conclusion of fact demonstrable almost to mathematical certainty. a supposed eye-witness might have said: "i saw him write the paper, and i saw him administer the poison." it would not have added to the weight of the evidence. the witness might have lied. chapter xxxvi. a night at nottingham. ever since the establishment of itinerant justices, now considerably over seven hundred years, going circuit has been an interesting and important ceremony, attended with great pomp and circumstance. i had intended to give a sketch of my own drawing of this great function, but an esteemed friend, who is a lover of the picturesque, has sent me an interesting description of one of my own itineraries, and i insert it with the more pleasure because i could not describe things from his point of view, and even if i could, might lay myself open to the charge of being egotistical. "when sir henry hawkins stepped into the train with his marshal, he felt all the exuberance which a judge usually experiences on going circuit. "going circuit is a pleasant diversion, and may be a delightful holiday when the weather is fine and cases few. i am not speaking of those northern towns where hard labour is the portion of the judicial personage from the time he opens the commission to the moment when he turns his back upon his prison-house, but of rural assize towns like warwick and bedford or oakham, where the judge takes his white gloves, smiles at the grand jury, congratulates them on the state of the calendar, and goes away to some nobleman's seat until such time as he is due to open the commission in some other circuit paradise where crime does not enter. "at lincoln station on this present occasion there is a goodly crowd outside and in, some well dressed and some slatternly, some bareheaded out of respect to the judge, and others of necessity, but all with a look of profoundest awe. "but as they wait the arrival of the train, all hearts are beating to see the judge. alas for some of them! they will see him too soon and too closely. "most conspicuous is the fat and dignified coachman in a powdered wig and tam-o'-shanter cap, and the footman with the important calves. clustered along the platform, and pushing their noses between the palisade fencing, seem gathered together all the little boys of lincoln--that is to say, those who do not live at the top of steep hill; for on that sacred eminence, the mount zion of lincolnshire, are the _cloisters_ and the closes, where are situated the residences of canons, archdeacons, and other ecclesiastical divinities. the top of this mountain holds no communion with the bottom. "on the platform--for the signal has been given that the judicial train is entering the station--ranged in due order are the sheriff of lincoln, in full robes, his chaplain in full canonicals, and a great many other worthy dignities, which want of space prevents my mentioning in detail. all are bareheaded, all motionless save those bosoms which heave with the excitement of the occasion. "although the chaplain and the sheriff hold their hats in their hands, it is understood in a well-bred town like lincoln there will be no cheers, only a deep, respectful silence. "and so, amid a hush of expectation and a wondering as to whether it's _orkins_, some saying one thing and some another, the train draws slowly in; a respectful porter, selected for the occasion, opens the door, and out leaps--jack. "then bursts from the crowd a general murmur. 'there 'e is! see 'im, bill!' cries one. 'there's orkins! see 'im? there 'e is; that's orkins behind that there long black devil!' "he was wrong about the black devil, for it was the sheriff's chaplain, who will preach the assize sermon next sunday in the cathedral." [a somewhat humorous scene once took place at nottingham. an indefatigable worker on circuit, sir henry seemed to have the constitution of the wandering jew and the energy of radium. no doubt he had much more patience than was necessary, for it kept him sitting till the small hours of the morning, and jurors-in-waiting and attendants were asleep in all directions. he was the only one wide awake in court. even javelin-men fell asleep with their spears in their hands; the marshal dozed in his chair, ushers leaned against the pillars which supported the gallery, while witnesses rubbed their eyes and yawned as they gave their evidence. a case of trifling importance was proceeding with as steady a pace as though an empire's fate, instead of a butcher's honour, were involved. one butcher had slandered another butcher. the art of advocacy was being exercised between an irishman and a scotchman, which made the english language quite a hotch-potch of equivocal words and a babel of sounds. the slander was one that seemed to shake the very foundations of butcherdom throughout the world--namely, an insinuation that the plaintiff had sold australian mutton for scotch beef; on the face of it an extraordinary allegation, although it had to find its way for the interpretation of a jury as to its meaning. amidst this costly international wrangle the judge kept his temper, occasionally cheering the combatants by saying in an interrogative tone, "yes?" and in the meanwhile writing the following on a slip of paper which he handed to a friend:-- "great prize competition for patience. hawkins first prize. job honourable mention." much earlier in the evening an application had been made by way of finding out how far the judge "would go," as the man tests the wheels of an express. every wheel had a good ring. he was prepared for a long run. every case was to be struck out if the parties were not there. after a while a feeling of compunction seemed to come over him. "one moment," said he, after the case in hand had proceeded for an hour or so. "this case seems as if it will occupy some time; it is the last but three of the common jury cases, and--i mean to say--if the gentlemen of the special jury like to go till--seven o'clock this evening, they may do so, or they may amuse themselves by sitting in court listening to this case." there was a shuffling of feet and a murmur like that of bees. "gentlemen," he said, "do whatever will be most agreeable to yourselves. i only wish to consider your comfort and convenience." "a damned pretty convenience," said a special juryman, "to be kept here all night!" "return punctually at seven, gentlemen, please; you are released till then." any person who knows nottingham and has to spend in that city two weary hours, between o'clock and p.m., wandering up and down that vast market-place, will understand the state of mind to which those special jurymen were reduced when they indulged in audible curses. there was, however, an element in this condition of things which his lordship had not taken into consideration, and that was the _bar_. several members were unnecessarily detained by this order of the court. their mess was at the george hotel; at seven they must be in court or within its precincts; at seven they dined. they chose the precincts, and sending for their butler, ordered the mess to be brought to the vacant judge's room, the second judge having gone away. at seven the mess was provided, and those who were not engaged in court sat down with a good appetite and a feeling of delightful exultation. meanwhile his lordship proceeded with his work, while the temperature was °. juries wiped their faces, and javelin-men leaned on their spears. now and then the sounds of revelry broke upon the ear as a door was opened. at ten his lordship rose for a few moments, and on proceeding along the corridor towards his room for his cup of tea, several champagne bottles stood boldly in line before his eyes. he also saw two pairs of legs adorned with yellow stockings--legs of the sheriff's footmen waiting to attend his lordship's carriage some hours hence. the scene recalled the scenes of other days, and the old times of the home circuit came back. should he adjourn and join the mess? no, no; he must not give way. he had his tea, and went back to court. he was not very well pleased with the cross-examination of the irish advocate. "do you want the witness to contradict what he has said in your favour, mr.----?" "no, my lord." "why do you cross-examine, then?" now the catch of an old circuit song was heard. "call your next witness, mr. jones. why was not this case tried in the county court?" (sounds of revelry from the bar mess-room.) "keep that door shut!" "may the witnesses go in the third case after this, my lord?" "i don't know how long this case will last. i am here to do the work of--" ("_jolly good fellow_!" from the mess-room.) "keep that door shut!" "what is your case, mr.----?" "it's slander, my lord--one butcher calling another a rogue; similar to the present case." "does he justify?" "oh no, my lord." it was now on the stroke of twelve. "i don't know at what time your lordship proposes to rise." "renew your application by-and-by." ("_we won't go home till morning_!" from the mess-room.) "keep that door shut! how many more witnesses have you got, mr. williams?" mr. williams, counting: "about--ten--eleven--" "and you, mr. jones?" "about the same number, my lord." it was twenty minutes to one. "i shall not sit any longer to oblige any one," said sir henry, closing his book with a bang. the noise woke the usher, and soon after the blare of trumpets announced that the court had risen, as some wag said, until the day after yesterday.] chapter xxxvii. how i met an incorrigible punster. as the midland circuit was perhaps my favourite, although i liked them all, there would necessarily be more to interest me there than on any other, and at our little quiet dinners, for which there was no special hour (it might be any time between eight o'clock in the evening or half-past one the next day), there were always pleasant conversations and amusing stories. with a large circle of acquaintances, i had learnt many things, sometimes to interest and sometimes to instruct. although i never sat down to open a school of instruction, a man should not despise the humblest teaching, or he may be deficient in many things he should have a knowledge of. there was once an old fox-hunting squire whose ambition was to be known as a punster. there never was a more good-natured man or a more genial host, and he would tell you of as many tremendous runs he had had as herne the hunter. after-dinner runs are always fine. the squire loved to hunt foxes and make puns. we were sitting on a five-barred gate one evening in his paddocks, and while i was admiring the yearlings, which were of great beauty, i suddenly saw looking over his left shoulder the most beautiful head of a thoroughbred i ever beheld, with her nose quite close to his ear. "halloa, my beauty!" said he. "what, _saltfish_, let me see if i've a bit of sugar, eh, _saltfish_?--sugar--is it?" his hand dived into the capacious pocket of his shooting-coat and brought out a piece of sugar, which he gave to the mare, and then affectionately rubbed her nose. "there, _saltfish_--there you are; and now show us your heels." i knew by his mentioning the mare's name so often that there was a pun in it, so i waited without putting any question. after a while he said (for he could contain his joke no longer),-- "judge, do you know why i call her _saltfish_?" "not the least idea," said i. "ha!" he explained, with a prodigious stare that almost shot his blue globular eyes out of his head: "because she is such a capital mare for a _fast day_! ha, ha!" suddenly he stopped laughing from disappointment at my not seeing the joke. he repeated it--"fast day, fast day"--then _glared at me_, and his underlip fell. at last the old man tossed his head, and whipped his boot with his crop. i have no doubt i deprived that man of a great deal of happiness; for if anything is disappointing to a punster, it is not seeing his joke. he had not done with me yet, however, and before abandoning me as an incorrigible lunatic, asked if i would like to see naples. "naples! by all means, but not at this time of year." "oh, i don't mean the town--no, no; but if you don't mind a little mud, i'll show you naples. come along this lane." "watercourse, you mean. i don't mind a little mud," said i; "it washes off, whoever throws it"--and i looked to see what he thought of that, knowing he would tell it at dinner. "good!" said he; "devilish good! wash off, no matter who throws it--devilish good!" down we came off the gate, and through the mud we went, he leading with a fat chuckle. "you don't see the joke, hawkins--you don't see the joke about that fast day;" and he gave me another look with his great blue eyes. i didn't know it was a joke; i thought it was the mare's name, and i heard him mutter "damn!" "this is the way," he said angrily. we seemed to travel through an interminable cesspool, but at last reached the open, and coming to another gate, he extended his arms on it, after the manner of a squire, and said,-- "there, there's _naples_. isn't she lovely?" "where?" i asked. "there; and a prettier mare you never saw. look at her!" "she's a beauty--a real beauty!" i exclaimed. he breathed rather short, and i felt easy. his manner, especially the distending of his cheeks, showed me that he was about to bring forth something--a pun of some sort. "do you know," he asked, with another turn of his eyes, "_why_ i call her _naples_?" "no, i haven't the faintest idea. naples? no." "well," he said, "i've puzzled a good many. i may say nobody has ever guessed it. i call that mare _naples_ because she's such a beautiful _bay_." i was glad i was not sitting on the gate, for i might have fallen and broken my neck. as i felt his eyes staring at me i preserved a dignified composure, and had the satisfaction of hearing him mutter again, "damn!" "this is our way," said he. i have no doubt he thought me the dullest fool he ever came near. our adventures were not ended. we went on over meadow and stile until we came to "the park," a tract of land of great beauty and with trees of superb growth. he was sullen and moody, like one whose nerves had failed him when a covey rose. i saw it coming--his last expiring effort. in the distance was a beautiful black mare, such as might have carried dick turpin from london to york. he was watching to see if i observed her, but i did not. "look," he said, in his most coaxing manner, "don't you see that mare yonder--down there by the spinny?" "what," i said, "on the left?" "down there! there--no, a little to the right. look! there she is." "oh, to be sure, a pretty animal." "pretty! why, there's no better bred animal in the kingdom. she's by ---- out of ----." "she ought to win the oaks." "come, now, _isn't_ she superb?" "a glory. a novelist would call her a _dream_." "ah, i thought you would say so. you know what a horse is." "when i _see_ one," i said. "i thought you said this was a mare." this is what the squire thought,-- "well, of all the dull devils i ever met, you are the most utterly unappreciative!" he was at his wits' end, although you must be clever if you can perceive the wits' end of a punster. "that's _morning star_," said he. "now do you know _why_ i call her _morning star_?" i answered truthfully i did not. "why," he said, with a merry laugh, "_because she's a roarer_." "what a pity!" i exclaimed. "but i don't wonder at it if she has to carry you and your jokes very far." he took it in good part, and we had a pleasant evening at the hall. he discharged a good many other puns, which i am glad to say i have forgotten. but there was a man present who was a good story-teller. some i had heard before, but they were none the less welcome, while one or two i related were as good as new to my host and old squire fullerton, who had once been high sheriff, and was supposed to know all about circuit business. he prefaced almost everything he said with, "when i was high sheriff," so i asked him innocently enough how many times he had been high sheriff, on which my host, being a quick-witted man, looked at him with a broad grin, while he balanced the nutcrackers on his forefinger. "well," said fullerton, "it was in parke's time." "yes; but which of them?" i asked. "are you alluding to sir alan? they did not both come together, surely." "now, lookee, fullerton," said my old friend, tapping the mahogany with the nutcrackers, as though he was about to say something remarkably clever; "one of 'em, jemmy, had a kind of a cast in one of his eyes--didn't he, judge?" "yes," said i; "but their names were not spelt alike." "no, no!" cried the squire; "i'm coming to that. one eye was a little troublesome at times, i believe--at least they said so in my time when _i_ was high sheriff--and that made him a little ill-tempered at times. now, that judge's name was spelt p-a-r-k-e" (tapping every letter with his nutcrackers), "so the bar used to call him '_parke with an "e"_;' and what do you think they used to call the other, whose name was park?--come, now, judge, you can guess that." i suppose i shook my head, for he said, "why, you told me the story yourself four years ago--ah! it must be five years ago--at this very table, when old squire hawley had laid two thousand on jannette for the leger. 'this is it,' said you; 'they call one of them parke with an "e," and the other park with an "i."'" "very well," i said, after they had done laughing at the way in which my host had caught me; "now i'll tell you what the duke of wellington said one morning. you recollect his grace met with an accident and lost an eye, which was kept in spirits of wine. on asking him how he was, the duke answered,-- "'oh, lord cairns asked me yesterday the same question; and i said, "i am rather depressed, but i believe my eye is in pretty good spirits."'" chapter xxxviii. the tilney street outrage--"are you not going to put on the black cap, my lord?" one evening, while sitting with some friends in tilney street, there was one of the most tremendous explosions ever heard. it seemed as if the world was blown up. but as nothing happened, we did not leave the room, and went on with the conversation. it was not until the next day it was ascertained that an attempt had been made to blow in reginald brett's front door, which was a few houses off, and that it had been perpetrated by some fenians, whose friends had been awarded penal servitude for life for a similar outrage with dynamite. why their anger was directed against mr. reginald brett--a most peaceful and excellent man--it was difficult to say, for he was very kind-hearted, and, above all, the son of the master of the rolls, who never tried prisoners at all, only counsel. having made inquiries the next morning--i don't know of whom, there were such a number of people in tilney street--i was astonished to hear some one say, "they meant to pay _you_ that visit, sir henry." "then _they knocked at the wrong door_," said i. the stranger seemed to know me, and i had a little further conversation with him. it turned out he was a chancery barrister, and a friend of brett's. "why," i asked, "do you think they meant the visit for me?" "well," he answered, "it was." "if it was intended for me," i replied, "i can only say they, were most ungrateful, for i gave their friends all i could." "yes--penal servitude for life." "very well," i added; "if they think they'll frighten me by blowing in reginald brett's front door, they are very much deceived." lord esher, i believe, always considered that _he_ was the object of this attack, and as i had no wish to disturb so comforting an idea, took no further notice, and the fenians took no further notice of me. years after, however, my name was mentioned in parliament in connection with this case; nor was my severity called in question. there were no more explosions in tilney street, but a singular circumstance occurred, which placed me in a position, if i had desired it, to deprive lord esher of the satisfaction of believing that he was the object of so much fenian attention. but if it was a comfort to him or a source of pride, i did not see why i should take it away. a reverend father of the roman church told me that a long while ago a man in confession made a statement which he wished the priest to communicate to me. it was under the seal of confession, and he refused, as he was bound to do, to mention a word. the man persisted in asking him, and he as persistently declined. some considerable time, however, having elapsed, the same man went to the priest, not to confess, but to repeat his request in ordinary conversation. this the father could have no objection to, and the culprit told him that he had undertaken to throw the bomb at the front door of number , but that through having in the gas-light misread the figure, he had placed it against that of number . he begged the priest as a great favour to assure me on his word that the bomb was certainly intended for me, and not for brett. on this subject the _kent leader_ had some interesting remarks on the anarchists as well as their judge. "speaking of dynamite," it said, "we have serious cause for alarm in our free land. the wretches concerned in the abominable outrage of tuesday last cannot be too severely dealt with. it is evident that their intent was against justice hawkins, and the fact that sir henry was the presiding judge at the recent anarchists' trial points the connection between the outrage and other anarchists.... "justice hawkins has been spoken of as a harsh judge. ever since the 'penge mystery' trial many have termed him the hanging judge. we have sat under him on many eventful occasions, and venture the opinion that no one who has had equal opportunity would come to any other conclusion than that he was painstaking and careful to a degree, and particularly in criminal cases formed one of the most conscientious judges on the bench. hanging judge! why, we have seen the tears start to his eyes when sentencing a prisoner to death, and, owing to emotion, only by a masterful effort could his voice be heard. above all, he is a just judge." [many persons were not aware, and thousands are not at the present time, that when a verdict of "wilful murder" is pronounced a judge has no alternative but to read the prescribed sentence of death. if this were not so, the situation would be almost intolerable, for who would not avoid, if possible, deciding that the irrevocable doom of the prisoner should be delivered? in many cases the feelings of the judges would interfere with the course of justice, and murderers would receive more sympathy than their victims, while fiends would escape to the danger of society. and yet that judges have sympathy, and that it can be, and is, in these days properly exercised, the following story will testify. i give the story as lord brampton told it.] in a circuit town a poor woman was tried before me for murdering her baby. the facts were so simple that they can be told in a few words. her baby was a week old, and the poor woman, unable to sustain the load of shame which oppressed her, ran one night into a river, holding the baby in her arms. she had got into the water deep enough to drown the baby, while her own life was saved by a boatman. the scene was sad enough as she stood under a lamp and looked into the face of the policeman, clutching her dead child to her breast, and refusing to part with it. at the trial there was no defence to the charge of wilful murder except _one_, and that i felt it my duty to discountenance. i think the depositions were handed to a young barrister by my order, and that being so, i exercised my discretion as to the mode of defence. in other words, i defended the prisoner myself. in order to avoid the sentence that would have followed an acquittal _on the ground of insanity_, which would have entailed perhaps lifelong imprisonment, i took upon myself to depart from the usual course, and ask the jury whether, _without being insane in the ordinary sense, the woman might not have been at the time of committing the deed in so excited a state as not to know what she was doing_. i thus avoided the technical form of question sane or insane, and obtained a verdict of guilty, but that the woman at the time was not answerable for her conduct, together with a strong recommendation to mercy. this verdict, if not according to the strictest legal quibbling, was according to justice. i was about to pronounce sentence in accordance with the law, which it was not possible for me to avoid, however much my mind was inclined to do so, when the pompous old high sheriff, all importance and dignity, said,-- "my lord, are you not going to put on the black cap?" "no," i answered, "i am not. i do not intend the poor creature to be hanged, and i am not going to frighten her to death." addressing her by name, i said, "don't pay any attention to what i am going to read. no harm will be done to you. i am sure you did not know in your great trouble and sorrow what you were doing, and i will take care to represent your case so that nothing will harm you in the way of punishment." i then mumbled over the words of the sentence of death, taking care that the poor woman did not hear them--much, no doubt, to the chagrin of the high sheriff and to the lowering of his high office and dignity. nothing so enhances a sheriff's dignity as the gallows. [there was a great deal of unlooked-for appreciation of his merits, and from quarters where, had he been a hard judge, one could never have expected it. there was even the observation of the costermonger leaning over his barrow near the assize court when one morning sir henry was going in with little jack. "gorblime, jemmy! see 'im? the ole bloke's been poachin' agin. see what he's got?" it was a brace of pheasants, and not going into court with his gun, but only his dog, it was taken for granted he had been out all night on an unlawful expedition. some one once asked sir henry what was the most wonderful verdict he ever obtained. he answered: "it depends upon circumstances. do you mean as to value?" "and amount." "well, then," he said, "_half a farthing_." some of the company were a little disconcerted. "i'll tell you," said the judge. "there was in our gracious majesty's reign a coinage of _half a farthing_. it was soon discountenanced as useless, but while it was current as coin of the realm i had the honour of obtaining a verdict for that amount, and need not say, had it been paid in _specie_ and preserved, it would in value more than equal at the present time any verdict the jury might have given in that case."] one of the most remarkable trials in which as a judge i have presided was what was known as the muswell hill tragedy. it was a brutal, commonplace affair, and with its sordid details might make a respectable society novel. i should have liked sherlock holmes to have been in the case, because he would have saved me a great deal of sensational development, as well as much anxiety and observation. burglars are usually crafty and faithless to one another. they never act alone--that is, the real professionals--and invariably, while in danger of being convicted, betray one another. such, at all events, is my experience. each fears the treachery of his companion in guilt, and endeavours to be first in disclosing it. in the case i am now speaking of, this experience was never more verified than in the attempt on the part of these two murderers each to shift the guilt on to the other. the ruffians, milsome and fowler, resolved to commit a burglary in the house of an old man who led a lonely life at the suburb known as muswell hill, near hornsey. the sole occupant of the cottage slept in a bedroom on the first floor. in his room was an iron safe, in which he kept a considerable sum of money, close by the side of his bed. in the dead of night the two robbers found their way into the kitchen, which was below the bedroom. they made, however, so much noise as to arouse the sleeper in the room above. the old man rose, and went down into the kitchen, where he found the two prisoners preparing to search for whatever property they might carry away. instantly they fell upon their victim, threw him on to the floor, and with a tablecloth, which they found in the room, and which they cut into strips for the purpose, bound the poor old man hand and foot, and struck him so violently about the head that he was killed on the spot, where he was found the following morning. the prisoners failed to obtain the booty they were in search of, and made off with some trifling plunder, the only reward for a most cruel murder. they escaped for a time, but were at last traced by a singular accident--one of the prisoners having taken a boy's toy lamp on the night of the burglary from his mother's cottage and left it in the kitchen of the murdered man. the boy identified one of the prisoners as the man who had been at his mother's and taken the lamp. the men were jointly charged with the murder before me. each tried to fix the guilt on the other, knowing--or, at all events, believing--that he himself would escape the consequences of wilful murder if he succeeded in hanging his friend. i knew well enough that, unless it could be proved that _both_ were implicated in the murder, or if it should be left uncertain which was the man who actually committed it, or that they both went to the place with the joint intention of perpetrating it if necessary for their object, they might both avoid the gallows. i therefore directed my attention closely to every circumstance in the case, and after a considerable amount of evidence had been given without much result, so far as implicating both prisoners in the actual murder was concerned, an accidental discovery revealed the whole of the facts of the tragedy as plainly as if i had seen it committed. i have said that the tablecover had been _cut_ into strips to accomplish their purpose; and it was clear that a penknife had been used, for one was found on the floor. suddenly my attention was called to the fact that _two_ penknives, which no one had hitherto noticed, were produced. they belonged, not to the prisoners, but to the deceased man, and were usually placed on the shelf in the kitchen. but it came out in evidence, quite, as it seemed, accidentally, that they had been taken from that place, and were found on the floor where the cutting up of the tablecover had been performed, at some little distance from one another; but each knife _by the side of and not far from the deceased man_. they were at my wish handed to me; i also asked for some of the shreds which had bound the dead man. upon examination it seemed that these were the knives that had been used to cut the tablecloth into shreds, and if so, the jury might well assume that _each_ prisoner had used one of the knives for that purpose, for one man could not at the same time use two. the tablecloth had jagged or hacked edges, which satisfied the jury that the knives had been used hurriedly, and that each man had been doing his share of the cutting. it was thus clearly established that both the men were engaged in the murder and equally guilty, and so the jury found by their verdict. whilst they were considering, the bigger of the two, a very powerful man, made a murderous attack upon the other, whom he evidently looked upon as his betrayer, and tried to kill him in the dock. the struggle was a fearful one, but the warders at last separated them. they were both sentenced to death and hanged. [the fact of these men making a noise in entering the house was strongly against them on a question of intent. burglars work silently, and at the least noise decamp, as a rule. in the present case, there being only one old man to contend against, it was easy to silence him as they did, and as they doubtless intended, when they went to the house.] chapter xxxix. several scenes. i think i have said that i had a favourite motto, which was, "never fret." it has often stood me in good stead and helped me to obey it. i was once put to it, however, on my way to open the commission at bangor on the welsh circuit. the assizes were to commence on the following day. it was a very glorious afternoon, and one to make you wish that no assize might ever be held again. i had engaged to dine with the high sheriff, who lived three or four miles away from the town, in a very beautiful part of the country; so there was everything to make one glad, except the assizes. added to all this pleasurable excitement, the chester cup was to be run for in the meanwhile, and i had many old friends who i knew would be there, and whom i should have been glad to meet had it been possible. the sheriff had made most elaborate calculations from his bradshaw and other sources as to the times of departure and arrival by train. i did not know what to do, so arranged with the stationmaster at chester to shunt my carriage till the afternoon, having no doubt i should be able to fulfil my engagements easily. it so happened, however, that the racing arrangements of the railway had been completely disturbed by the great crowds of visitors, and the result was that i did not reach carnarvon at the proper time, and my arrival in that place was delayed for nearly an hour. nevertheless, i opened the commission, and the high sheriff asked me if i would allow him to go on to his house to receive his guests, whom he had invited to meet me, and permit the chaplain to escort me in the performance of my duties. having dressed in full uniform, i got into the carriage with the chaplain, who was quite a lively companion, of an enterprising turn of mind, and desirous of learning something of the world. i could have taught him a good deal, i have no doubt, had i allowed myself to be drawn. my friend had no great conversational powers, but was possessed of an inquiring mind. after we had ridden a little way, to my great amusement he asked me if i had any favourite _motto_ that i could tell him, so that he might keep it in his memory. "yes," said i, "i have a very good one," and cheerfully said, "never fret." this, when i explained it to him, especially with reference to my business arrangements, seemed to please him very much. it was as good as saying, "don't fret because you can't preach two sermons from two pulpits at the same time." he asked if he might write it down in his pocket-book, and i told him by all means, and hoped he would. "excellent!" he murmured as he wrote it: "never fret." he then asked modestly if i could give him any other pithy saying which would be worthy of remembrance. "yes," said i, thinking a little, "i recollect one very good thing which you will do well to remember: never say anything you think will be disagreeable to other persons." he expressed great admiration for this, as it sounded so original, and was particularly adapted to the clergy. "oh," said he, "that's in the real spirit of christianity." "is that so?" i asked, as he wrote it down in his book; and he seemed to admire it exceedingly after he had written it, even more than the other. then he said he really did not like to trouble me, but it was the first time he had had the honour of occupying the position of sheriff's chaplain, etc.; but might he trouble me for another motto, or something that might go as a kind of companion to the others in his pocket-book? this a little puzzled me, but i felt that he took me now for a sage, and that my reputation as such was at stake. i had nothing in stock, but wondered if it would be possible to make one for him while he waited. "yes," said i, "with the greatest displeasure: never do anything which you feel will be disagreeable to yourself." "my lord!" he cried in the greatest glee, "that is by far the best of all; that must go down in my book, it is so practical, and of everyday use." i was, of course, equally delighted to afford so young a man so much instruction, and thought what a thing it is to be young. however, here was an opportunity not to be lost of showing him how to put to the practical test of experience two at least, if not all three, of the little aphorisms, and i said so. "i should be delighted, my lord, to put your advice into practice at the earliest opportunity," he answered. "that will be on sunday," said i, "at twelve o'clock. don't preach a long sermon!" in due time we arrived at the sheriff's house, and there found all the guests assembled and waiting to meet me. i was quite quick enough to perceive at a glance that they had been planning some scheme to entrap me--at all events, to cause me embarrassment. the ladies were in it, for they all smiled, and said as plainly by their looks as possible, "we shall have you nicely, judge, depend upon it, by-and-by." the sheriff was the chief spokesman. no sooner had we sat down to table than he addressed me in a most unaffected manner, as if the question were quite in the ordinary course, and had not been planned. i answered it in the same spirit. "my lord, could you kindly tell us which horse has won the cup?" evidently thinking that i had been to the course. there was a dead silence at this crucial question--a silence that you could feel was the result of a deep-laid conspiracy--and all the ladies smiled. fortunately i was not caught; nor was i even taken aback; my presence of mind did not desert me in this my hour of need; and i said, in the most natural tone i could assume,-- "yes, i was sure that would be the first question you would ask me when i had the pleasure of meeting this brilliant company, as you knew i must pass through chester station; so i popped my head out of the window and asked the porter which horse had won. he told me the judge had won by a length, chaplain was a good second, and sheriff a bad third." the squire took his defeat like a man. i was reminded during the evening of a singular case of bigamy--a double bigamy--that came before me at derby, in which the simple story was that an unfortunate couple had got married twenty years before the time i speak of, and that they had the good luck to find out they did not care for one another the week after they were married. it would have been luckier if they had found it out a week before instead of a week after; but so it was, and in the circumstances they did the wisest thing, probably, that they could. they separated, and never met again until they met in the dock before me--a trysting-place not of their own choosing, and more strange than a novelist would dream of. but there they were, and this was the story of their lives:-- the man, after the separation, lived for some time single, then formed a companionship, and, as he afterwards heard that his wife had got married to some one else, thought he would follow her example. now, if a judge punished immorality, here was something to punish; but the law leaves that to the ecclesiastical or some other jurisdiction. the judge has but to deal with the breach of the law, and to punish in accordance with the requirements of the injury to society--not even to the injury of the individual. i made inquiries of the police and others, as the prisoners had pleaded guilty, and found that all the parties--the four persons--had been living respectable and hard-working lives. there was no fault whatever to be found with their conduct. they were respected by all who knew them. i then asked how it was found out at last that these people, living quietly and happily, had been previously married. "o my lord," said a policeman, "there was a hinquest on a babby, which was the female prisoner's babby and what had died. then it come out afore mr. coroner, my lord, and he ordered the woman into custody, and then the man was took." i thought they had had punishment enough for their offence, and gave them no imprisonment, but ordered them to be released on their own recognizances, and to come up for judgment if called upon. now came _my_ sentence. the clergyman of the parish in which this terrible crime had been discovered evidently felt that he had been living in the utmost danger for years. here these people came to his church, and for aught he knew prayed for forgiveness under the very roof where he himself worshipped. he said i had done a fine thing to encourage sin and immorality, and what could come of humanity if judges would not punish? he denounced me, i afterwards learned, in his pulpit in the severest terms, although i did not hear that he used the same vituperative language towards the poor creatures i had so far absolved. luckily i was not attending the reverend gentleman's ministration, but he seemed to think the greatest crime i had committed was disallowing the costs of the prosecution. that was a direct _incentive to bigamy_, although in what respect i never learned. it sometimes suggested to my mind this question,-- what would this minister of the gospel have said to the divine master when the woman caught "in the very act" was before him, and he said, in words never to be forgotten till men and women are no more, "neither do i condemn thee"? i thought those who loved a prosecution of this kind--whoever it may have been--_ought_ to pay for the luxury, and so i condemned _them_ in the costs. chapter xl. dr. lamson[a]--a case of mistaken identity--a will case. [footnote a: in this and one or two other cases i am pleased to acknowledge my thanks to my esteemed friend mr. charles w. mathews, the distinguished advocate, for refreshing my memory with the incidents.] one of the most diabolical cases which came before me while a judge was one which, although it occupied several days, can be told in the course of a few minutes. i mention it, moreover, not so much on account of its inhuman features as the fact that, in my opinion, dr. lamson led the prosecutors--that is, the government solicitors--into a theory which was calculated by that cunning murderer to save him from a conviction, and it nearly did so. the story is this:--there was in the year a family of five children, one of whom died that year and another in , leaving two daughters and a poor cripple boy of eighteen. he was partially paralyzed, and had a malformation of the spine, so that he was an object of great commiseration. he was of a kind and cheerful disposition, and, excepting his spinal affliction, in good health. he seems to have been loved by everybody. his playmates wheeled him about in his chair so that he might enjoy their pastimes, and even carried him up and down stairs. one of this boy's sisters married a mr. chapman; the other married a man who was a doctor, or passed as one, of the name of lamson. he was a man of idle habits, luxurious tastes, and a wicked heart. he was in debt, had fraudulently drawn cheques when he had nothing at the bank to meet them, and was so reduced to poverty that he had pawned his watch and his case of surgical instruments. by the death of the brother in , the two sisters received each a sum of £ . this boy, percy, received the like amount, and if he should live to come of age would have a further sum of £ , ; but if he died before that period, one-half would go to mrs. chapman and the other half to mrs. lamson, the doctor's wife. lamson had bought a medical practice at bournemouth in , but very soon after writs and executions were issued against him. for three years before percy's death he had been at school at blenheim house, wimbledon. it appeared from his statement while dying that he felt just "the same as i did once before, when i was at shanklin with my brother-in-law," the doctor, "after he had given me a quinine pill." "my throat is burning, and my skin feels all drawn up." this pill, however, did not kill him, but it showed, as subsequent events proved, the murderous design of dr. lamson. on december the boy, being still at school and in good health, was amusing himself with his schoolfellows when his brother-in-law, the prisoner, called. percy was taken into the room to see him. "well, percy, old boy," said the doctor, "how fat you are looking!" the doctor sat down, and percy was seated near him. the visitor then took out of a little bag a dundee cake and some sweets, and cut a small slice of the cake with his penknife. about fifteen minutes afterwards he said to mr. bedbury, the master, "i did not forget you and your boys: these capsules will be nice for them to take nauseous medicines in;" and he took several boxes of capsules from the bag and placed them on the table. one box he pushed towards mr. bedbury, asking him to try them. no one had seen lamson take a capsule out of the box, but he was seen to fill one with sugar and give it to the boy, saying, "here, percy, you are a swell pill-taker." within five minutes after that the doctor excused himself for going so soon, saying if he did not he would lose his train. not long after his departure--that is, between eight and nine--the boy was taken ill and put into bed with all the violent symptoms which are invariably produced by that most deadly of vegetable poisons, aconitine, and he died at twenty minutes past eleven the same night. aconitine was found in the stomach; aconitine had been purchased by the doctor before the boy's death, and being well and having been well, the brother-in-law gave him the last thing he swallowed before the dreadful symptoms of the poison betrayed its presence. at that time no chemical test could be applied to aconitine, any more than it could to strychnine in the time of palmer. but its symptoms were, in the one case as well as in the other, unmistakable, and such as no other cause of illness would produce. two pills were found in the boy's play-box, one of which was said to contain aconitine. such was the simple case which occupied six days to try. the jury were not long in coming to a conclusion, and returned into court with a verdict of "guilty." my awful duty was soon concluded. i told the prisoner the law compelled me to pass upon him the sentence of death; but gave him, both by voice and manner, to understand that in this world there could be no hope for such a criminal. i said, as i thought it right to say, that it was no part of my duty to admonish him as to how he was to meet the dread doom that awaited him, but nevertheless i entreated him to seek for pardon of his great sin from the almighty. it was my opinion, and i believe that of the counsel for the defence, that, although so much stress was laid upon the _capsule_ and the administration of the poison by that means, it was not so administered, but that the capsule was an artifice, designed to hoodwink the doctors and treasury solicitors. to have poisoned the boy in such a manner would have been a clumsy device for so keen and artful a criminal as lamson; and i knew it was conveyed in another manner. it should be stated that in lamson's pocket-book were found memoranda as to the symptoms and effect of aconitine, and as to there being no test for its discovery. lamson therefore had made the poisoning of this boy a careful and particular study. he was not such a clumsy operator as to administer it in the way suggested. the openness of that proceeding was to blind the eyes of detectives and lawyers alike; the aconitine was conveyed to the lad's stomach _by means of a raisin in the piece of dundee cake which lamson cut with his penknife and handed to him_. he knew, of course, the part of the cake where it was. my attention was directed to the artifice employed by lamson, by the shallowness of the stratagem, and by the one circumstance that almost escaped notice--namely, the dundee cake and the curious desire of the man to offer the boy a piece in so unusual a manner. so eager was he to give him a taste that he must needs cut it with his _penknife_. i was sure, and am sure now, although there is no evidence but that which common sense, acting on circumstances, suggested, that the aconitine was conveyed to the deceased by means of the piece of cake which lamson gave him, and being carefully placed in the interior of the raisin, would not operate until the skin had had time to digest, and he the opportunity of getting on his journey to paris, whither he was bound that night, to await, no doubt, the news of the boy's illness and death. if the poison had been conveyed in the capsule, its operation would have been almost immediate, and so would the detection of the aconitine. as i have said, the contrivance would have been too clumsy for so crafty a mind. a detective would not expect to find the secret design so foolishly exposed any more than a spectator would expect to see the actual trick of a conjurer in the manner of its performance. i was not able to bring the artifice before the jury; the crown had not discovered it, and lamson's deep-laid scheme was nearly successful. his plan, of course, was to lead the prosecution to maintain that he gave the poison in the capsule, and then to compel them to show that there was no evidence of it. the jury were satisfied that the boy was poisoned by lamson, and little troubled themselves about the way in which it was done. a singular case of mistaken identity came under my notice during the trial of a serious charge of wounding with intent to do grievous bodily harm. _five_ men were charged, and the evidence showed that a most brutal mutilation of a gamekeeper's hand had been inflicted. the men were notorious poachers, and were engaged in a poaching expedition when the crime was committed. one of the accused was a young man, scarcely more than a youth, but i had no doubt that he was the cleverest of the gang. the men were convicted, but this young man vehemently protested his innocence, and declared that he was not with the gang that night. his manner impressed me so much that i began to doubt whether some mistake had not been made. the injured keeper, however, whose honesty i had no reason to doubt, declared that this youth was really the man who knelt on his breast and inflicted the grievous injury to his hand by nearly severing the thumb. he swore that he had every opportunity of seeing him while he was committing the deed, as his face was close to his own, and _their eyes met_. moreover, the young man's cap was found _close by the spot where the assault took place_. about this there was no dispute and could be no mistake, for the prisoner confessed that the cap was his, adding, however, that he _had lent it on that night to one of the other prisoners_. the youth vehemently protested his innocence after the verdict was given. so far as he was concerned i was _not_ satisfied with the conviction. "is it possible," i asked myself, "that there can have been a mistake?" i did not think that in the excitement of such a moment, and during so fearful a struggle with his antagonist, with their faces _so close together_ that they stared into each other's eyes, there was such an opportunity of seeing the youth's face as to make it clear beyond any doubt that he was the man who committed the crime. the jury, i thought, had judged too hastily from appearances--a mistake always to be guarded against. i invited the prosecuting counsel to come to my room, and asked him, "are you satisfied with that verdict so far as the _youngest prisoner_ is concerned?" "yes," he said; "the jury found him 'guilty,' and i think the evidence was enough to justify the verdict." "i _do not_," i said, "and shall try him again on another indictment." there was another involving the same evidence. i considered the matter very carefully during the night, and weighed every particle of evidence with every probability, and the more i thought of it the more convinced i was that injustice had been done. first of all, to prevent the men who i was convinced were rightly convicted from entertaining any doubt about the result of their conviction, i sentenced them to penal servitude. i then undertook to watch the case on behalf of the young man myself, and did not, as i might have done, assign him counsel. the prisoner was put up for trial, and the second inquiry commenced. it had struck me during the night that there was a point in the case which had been taken for granted by the _counsel on both sides_, and that that point was _the_ one on which the verdict had gone wrong. as i have said, i did not doubt the honest belief of the keeper, but i doubted, and, in fact, disbelieved altogether in, the power of any man to identify the face of another when their eyes were close together, as he had no ordinary but a distorted view of the features. in order to test my theory on this matter, i took the real point in the case, as it afterwards turned out to be. it was this: _five men_ were taken _for granted_ to have been in the gang and in the field on that occasion. the difficulty was to prove that there were only _four_, and then to show that the young man was not one of the four. these two difficulties lay before me, but i resolved to test them to the utmost of my ability. the crown was against me and the treasury counsel. i knew pretty well where to begin--which is a great point, i think, in advocacy--and began in the right place. i must repeat that the prisoner boldly asserted, when the evidence was given as to the finding of his cap close to the spot where the outrage was committed, that it _was_ his cap, but that he had not worn it on that night, having lent it to one of the other men, whom he then named. this was, to my mind, a very important point in this second trial, and i made a note of it to assist me at a later period of the case. if this was true, the strong corroboration of the keeper's evidence of identity was gone. indeed, it went a good deal further in its value than that, for it may have been the finding of the prisoner's cap that induced the belief that the man whose face he saw was the prisoner's! i asked the accused if he would like the other men called to prove his statements, warning him at the same time that it was upon his own evidence that they had been arrested, and pointing out the risk he ran from their ill-will. "my lord," said he, "they will owe me no ill-will, and they will not deny what i say. it's true; i'm one of 'em, and i know they won't deny it." without discarding this evidence i let the case proceed. i asked the policeman when he came into the witness-box if he examined carefully the footprints at the gate where the men entered. he said he had, and was _quite positive_ that there were the footprints of _four men only_, and further, that these prints corresponded with the shoes of the four men who had been sentenced, and _not_ with those of the prisoner. it shows how fatal it may be in judge, counsel, or jury to take anything for granted in a criminal charge. it had been taken for granted at the former trial that _five_ men had entered the field, and how the counsel for the defence could have done so i am at a loss to conceive. it was further ascertained that the same number and the _same footprints_ marked the steps of those coming _out_ of the field. it went even further, for it was proved that _no footprints of a fifth man were anywhere visible on any other part of the field_, although the most careful search had been made. if this was established, as i think it was beyond all controversy, it clearly proved that only _four men_ were in the field when the injuries were inflicted. but it might, nevertheless, be that the young man identified was one of the four. whether he was or not was now the question at issue; it was reduced to that one point. to disprove this the prisoner said he would like the men to be called. i cautioned him again as to the danger of the course he proposed, feeling that he was pretty safe as it was in the hands of the jury. they could hardly convict under my ruling in the circumstances. "no, my lord," he said; "i am _sure they will speak the truth about it_. they will not swear falsely against me to save themselves." the man who was alleged to have borrowed the cap was then brought up, and i asked him if it was true that he wore the prisoner's cap on the night of the outrage. he said, "it is true, my lord; i borrowed it." "then are you the man who inflicted the injury on the keeper?" his answer was, "unhappily, my lord, i am, and i am heartily sorry for it." when asked, "was this young man with you that night?" "no, my lord," was the answer. the jury at once said they would not trouble me to sum up the case; they were perfectly satisfied that the prisoner was not guilty, and that what he said was true--that he was not in the field that night. they accordingly acquitted him, to my perfect satisfaction. of course, i instantly wrote to the home secretary, mr. h. matthews (now viscount llandaff), who at once procured a free pardon on the former conviction, and the prisoner was restored to liberty. this case strikingly points to the imperative demand of justice that every case shall be investigated in its minutest detail. the broad features are not by any means sufficient to fix guilt on any one accused, and it is in such cases that circumstantial evidence is often brought in question, while, indeed, the _real_ circumstances are too often not brought to light. circumstantial evidence can seldom fail if the real circumstances are brought out. nobody had thought of raising a doubt as to there being _five_ persons in the field. upon such small points the great issue of a case often depends. another curious case came before me on the western circuit. a solicitor was charged with forging the will of a lady, which devised to him a considerable amount of her property; but as the case proceeded it became clear to me that the will was signed after the lady's death, and then with a dry pen held in the hand of the deceased, by the accused himself whilst he guided it over a signature which he had craftily forged. a woman was present when this was done, and as she had attested the execution of the will, she was a necessary witness for the prisoner, and in examination-in-chief she was very clear indeed that it was by the _hand of the deceased_ that the will was signed, and that she herself had seen the deceased sign it. suspicion only existed as to what the real facts were until this woman went into the box, and then a scene, highly dramatic, occurred in the course of her cross-examination by mr. charles mathews, who held the brief for the prosecution. the woman positively swore that she saw the testatrix sign the will _with her own hand_, and no amount of the rough-and-ready, inartistic, and disingenuous "will you swear this?" and "are you prepared to swear that?" would have been of any avail. she _had_ sworn it, and was prepared to swear it, in her own way, any number of times that any counsel might desire. the only mode of dealing with her was adopted. she was asked,-- "where was the will signed?" "on the bed." "was any one near?" "yes, the prisoner." "how near?" "quite close." "so that he could hand the ink if necessary?" "oh yes." "and the pen?" "oh yes." "_did he hand the pen_?" "he did." "_and the ink_?" "yes." "there was no one else to do so except you?" "no." "did he put the pen into her hand?" "yes." "and assist her while she signed the will?" "yes." "how did he assist her?" "_by raising her in the bed and supporting her when he had raised her_." "did he guide her hand?" "no." "did he touch her hand at all?" "_i think he did just touch her hand_." "when he did touch her hand _was she dead_?" at this last question the woman turned terribly pale, was seen to falter, and fell in a swoon on the ground, and so _revealed the truth_ which she had come to _deny_. chapter xli. mr.j.l. toole on the bench. sir henry hawkins was sitting at derby assizes in the criminal court, which, as usual in country towns, was crowded so that you could scarcely breathe, while the air you had to breathe was like that of a pestilence. there was, however, a little space left behind the dock which admitted of the passage of one man at a time. windows and doors were all securely closed, so as to prevent draught, for nothing is so bad as draught when you are hot, and nothing makes you so hot as being stived by hundreds in a narrow space without draught. he happened to look up into the faces of this shining but by no means brilliant assembly, when what should he observe peeping over the shoulders of two buxom factory women with blue kerchiefs but the _head of j.l. toole_! at least, it looked like mr. toole's head; but how it came there it was impossible to say. it was a delight anywhere, but it seemed now out of place. the marshal asked the sheriff, "isn't that toole?" the answer was, "it looks like him." we knew he was in the town, and that there was to be a bespeak night, when her majesty's judges and the midland circuit would honour, etc. derby is not behind other towns in this respect. presently the judge's eyes went in the direction of the object which excited so much curiosity, and, like every one else, he was interested in the appearance of the great comedian, although at that moment he was not acting a part, but enduring a situation. in the afternoon the actor was on the bench sitting next to the marshal, and assuming an air of great gravity, which would have become a judge of the greatest dignity. there was never the faintest suggestion of a smile. he looked, indeed, like byron's description of the corsair:-- "and where his frown of hatred darkly fell, hope, withering, fled, and mercy sighed farewell." a turkey-cock in a pulpit could not have seemed more to dominate the proceedings. one very annoying circumstance occurred at this assize. it was the cracking, sometimes almost banging, of the _seats_ and wainscoting, which had been remade of oak. every now and again there was a loud squeak, and then a noise like the cracking of walnuts. to a sensitive mind it must have been a trying situation, as toole afterwards said, when you are trying prisoners. meanwhile sir henry pursued the even tenor of his way, speaking little, as was his wont, and thinking much about the case before him, of a very trumpery character, unless you measured it by the game laws. but no one less liked to be disturbed by noises of any kind than sir henry when at work. even the rustling of a newspaper would cause him to direct the reader to study in some other part of the building. suddenly there was a squeaking of another kind distinguishable from all others--it was the squeaking of _sunday boots_. in the country no boots are considered sunday boots unless they squeak. at all events, that was the case in derbyshire at the time i write of. the noise proceeded from a heavy farmer, a juror-in-waiting, who was allowed to cross from one side of the court to the other for change of air. his endeavour to suppress the noise of his boots only seemed to cause them the greater irritation. there was a universal titter as the crowd looked up to see what line the judge would take. sir henry reproved quietly, and just as the farmer, who was prancing like an elephant, had got well in front of the bench, he said,-- "if that gentleman desires to perambulate this court, he had better take off his boots." the gravity of the situation was disturbed, but that of the farmer remained, unhappily for him, for, with one foot planted firmly on the ground, and the other poised between heaven and earth, he was afraid to let it come down, and there he stood. "we will wait," said the judge, "until that gentleman has got to the door which leads into the street." the juryman, toole told us afterwards, was delighted, for he escaped for the whole assize. although there was much laughter, toole knew his position and dignity too well to join in it; but he did what any respectable citizen would be expected to do in the circumstances--tried to suppress it, yet made such faces in the attempt that the whole house came down in volleys. but now he was resolved to set matters right, and prevent any further repetition of unseemly conduct. the way he did so is worthy of note. he took a pen, dipped it in the ink, and then, spreading his elbows out as one in great authority, and duly impressed with the dignity of the situation, wrote these words on a sheet of paper, which had the royal arms in the centre, his tongue meanwhile seeming to imitate the motion of his pen: "i have had my eye on you for a long time past, and if i see you laugh again i will send you to prison. be warned in time." "just hand that," said he, giving it to a javelin-man, "to the gentleman there in the _green blouse_ and red hair." the paper was stuck into the slit of the tapering fishing-rod-like instrument, and placed under the nose of the man who had been laughing. it was some time before he could believe his eyes, but a thrust or two of the stick acted like a pair of spectacles, and convinced him it was intended for his perusal. the effect was instantaneous, and he handed the document to his wife. it was interesting to watch the face of toole, suffused with good-humour and yet preserving its elastic dignity, in contrast with that of the farmer, which was almost white with terror as they interchanged furtive glances for the next half-hour. however, it all ended happily, for the man never laughed again. toole was invited to dine at the judge's dinner, but being himself on circuit, and not at liberty till _eleven_, when he took supper, an invitation to "look in" was accepted instead, if it were not too late. after supper he accordingly went for his "look in," and arriving at half-past eleven, was in time for dinner, which did not take place till half-past twelve, the court having adjourned at . . however, we spent a very pleasant evening, toole telling the story of his going to see hawkins in the tichborne trial related elsewhere, and sir henry that of the queen refusing once upon a time to accept a box at drury lane theatre while e.t. smith was lessee, which made smith so angry that he could hardly bring himself to propose her majesty's health at a dinner that same evening at drury lane. nothing but his loyalty prevented his resenting it in a suitable and dignified manner. when one sovereign is affronted by another, the only thing is to consider their respective _commercial_ values, for that, as a rule, is the test of all things in a commercial world. but the sequel was that e.t. said, "_although me and her majesty have had a little difference, i think on the whole i may propose the queen_!" fool is he who neglects his sovereign, and gets in exchange sovereign contempt. such was toole's observation. it was at this little entertainment that sir henry told the story of the banker's clerk and the bad boy--a true story, he said, although it may be without a moral. the best stories, said toole, like the best people, have no morals--at least, none to make a song about--any more than the best dogs have the longest tails. a gentleman who was a customer at a certain bank was asked by a bank clerk whether a particular cheque bore his signature. the gentleman looked at it, and said, "that is all right." "all right?" said the bank clerk. "is that really your signature, sir?" "certainly," said the gentleman. "quite sure, sir?" "as sure as i am of my own existence." the clerk looked puzzled and somewhat disconcerted, so sure was he that the signature was false. "how can i be deceived in my own handwriting?" asked the supposed drawer of the cheque. "well," said the clerk, "you will excuse me, i hope, but i have _refused to pay on that signature_, because i do not believe it is yours." "_pay_!" said the customer. "for heaven's sake, do not dishonour my signature." "i will never do that," was the answer; "but will you look through your papers, counterfoils, bank-book, and accounts, and see if you can trace this cheque?" the customer looked through his accounts and found no trace of it or the amount for which it was given. at last, on examining the _number_ of the cheque, he was convinced that the signature could not be his, _because he had never had a cheque-book with that number in it_. at the same time, his astonishment was great that the clerk should know his handwriting better than he knew it himself. "i will tell you," said the clerk, "how i discovered the forgery. a boy presented this cheque, purporting to have been signed by you. i cashed it. he came again with another. i cashed that. a little while afterwards he came again. my suspicions were then aroused, not by anything in the signature or the cheque, but by the circumstance of the _frequency of his coming_. when he came the third time, however, i suspended payment until i saw you, because the _line under your signature with which you always finish was not at the same angle_; it went a trifle nearer the letters, and i at once concluded it was a forgery." and so it turned out to be. "that boy," said toole, "deserves to be taken up by some one, for he has great talent." "and in speaking of this matter," said sir henry, "i may tell you that bankers' clerks are the very best that ever could be invented as tests for handwriting. their intelligence and accuracy are perfectly astonishing. they hardly ever make a mistake, and are seldom deceived. the experts in handwriting are clever enough, and mean to be true; but every _expert_ in a case, be he doctor, caligrapher, or phrenologist, has some unknown quantity of bias, and must almost of necessity, if he is on the one side or the other, exercise it, however unintentional it may be. the banker speaks _without this influence_, and therefore, if not more likely to be correct, is more reasonably supposed to be so. "do you remember, sir henry," asked toole, "what the clever rogue orton wrote in his pocket-book? 'some has money no brains; some has brains no money; them as has money no brains was made for them as has brains no money.'" "just like roger," said sir henry. this was a catch-phrase in society at the time of the trial. some one recited from a number of _hood's comic annual_ the following poem by tom hood:-- a bird of another feather.[a] [footnote a: these lines appeared about , and i have to make acknowledgments to those whom i have been unable to ask for permission to reproduce, and trust they will accept both my apologies and thanks.] "yestreen, when i retired to bed, i had a funny dream; imagination backward sped up history's ancient stream. a falconer in fullest dress was teaching me his art; of tercel, eyas, hood, and jess, the terms i learnt by heart. "he flew his falcon to attack the osprey, swan, and hern, and showed me, when he wished it back, the lure for its return. i thought it was a noble sport; i struggled to excel my gentle teacher, and, in short, i managed rather well. "the dream is o'er, and i to-day return to modern time; but yet i've something more to say, if you will list my rhyme. i've been a witness in a case for seven long mortal hours, and, cross-examined, had to face the counsel's keenest powers. "with courteous phrase and winning smiles he led me gently on; i fell a victim to his wiles-- but how he changed anon! 'oh, you're prepared to swear to that!' and, 'now, sir, just take care!' and, 'come, be cautious what you're at!' with questions hard to bear. "and when he'd turned me inside out, he turned me outside in; i knew not what i was about-- my brain was all a-spin, i'm shaking now with nervous fright, and since i left the court i've changed my dream-opinion quite-- i don't think hawkins sport!" before concluding the evening, toole said,-- "you remember your joke, sir henry, about miss brain and her black kids?" "not for the world, not for the world, my dear toole!" "not for the world, sir henry, not for the world; only for us; not before the boys! you said it was the best joke you ever made." "and the worst. but i was not a judge then."] chapter xlii. a full member of the jockey club. i knew a great many men connected with the turf, from the highest to the humblest; but although i have spent the most agreeable hours amongst them, there is little which, if written, would afford amusement: everything in a story, a repartee, or a joke depends, like a jewel, on its setting. at lord falmouth's, my old and esteemed friend, i have spent many jovial and happy hours. he was one of the most amiable of hosts, and of a boundless hospitality; ran many distinguished horses, and won many big races. i used to drive with him to see his horses at exercise before breakfast, and in his company visited some of the most celebrated men of the day, who were also amongst the most distinguished of the turf. amongst these was prince b----, whose fate was the saddest of all my reminiscences of the turf. i almost witnessed his death, for it took place nearly at the moment of my taking leave of him at the jockey club. there was a flight of stairs from where i stood with him, leading down to the luncheon-room, and there he appears to have slipped and fallen. i don't know that it was in consequence of this accident, or whether it had anything to do with it, but i seemed after this sad event to have practically broken my connection with the turf, and yet perhaps i was more intimately attached to it than ever, for lord rosebery asked me (i being an honorary member of the jockey club) whether there was any reason, so far as my judicial position was concerned, why i should not be elected a _full member_. i said there was none. so his lordship proposed me, and i was elected. the only privilege i acquired by "full membership" was that i had to pay ten guineas a year subscription instead of nothing. i almost regularly had the honour of being invited, with other members of the club, to the entertainment given by h.r.h. the prince of wales on the derby night--a festivity continued since his majesty's accession to the throne. nor shall i forget the several occasions on which i have had the honour to be the guest of his gracious majesty at sandringham; and i mention them here to record my respectful gratitude for the kindness and hospitality of their majesties the king and queen whenever it has been my good fortune to be invited. speaking, however, of racing men, i have always thought that the passion for gambling is one of the strongest propensities of our nature, and once the mind is given to it there is no restraint possible, either from law or pulpit. its fascination never slackens, and time never blunts the keen desire of self-gratification which it engenders, while the grip with which it fastens upon us is as fast in old age as in youth. it will absorb all other pleasures and pastimes. i will give an instance of what i mean. there was a well-known bookmaker of my acquaintance whose whole mind was devoted to this passion; his lifetime was a gamble; everything seemed to be created to make a bet upon. do what he would, go where he would, his thoughts were upon horse-racing. i was staying with charley carew, the owner and occupier of beddington park, with a small party of guests invited for shooting. one morning there was to be a rabbit-killing expedition, and after a pretty good morning's walk, i had a rest, and then leisurely went along towards the trysting-place for lunch. it was a large oak tree, and as i came up there was hodgman, the bookie, who did not see me, walking round the rabbits, which lay in rows, counting them, and muttering, "_two--four--twenty_," and so on up to a hundred. he then paused, and after a while soliloquized, "ah! fancy a hundred! one hundred _dead uns_! what would i give for such a lot for the chester cup!" his mind was not with the rabbits except in connection with his betting-book on the chester cup. he was by no means singular except in the manner of showing his propensity. the devotees of "bridge" are all hodgmans in their way. at the benchers' table i was speaking of clarkson in reference to the old bailey. he had been with me in consultation in a very bad case. we had not the ghost of a chance of winning it, and indicated our opinion to that effect to the unhappy client. he turned from us with a sad look, as if desperation had seized him, and then, with tears in his eyes, asked clarkson if he thought it advisable for him to _surrender_ and take his trial. "my good man," said clarkson, "it is my duty as a loyal subject to advise you to surrender and take your trial, _but, if i were in your shoes_, i'll be damned if i would!" the man, however, for some reason or other, _did_ surrender like a good citizen, and the man who did not appear was his own leading counsel clarkson. he never even looked in, and the conduct of the case, therefore, devolved on me. i did my best for him, however, and succeeded. the man was acquitted. not content with this piece of good fortune, for such indeed it was, he was ill-advised enough to bring an action for _malicious prosecution_. lord denman tried it, and told him it was a most impudent action, and he was astonished that he was not convicted. during this conversation another, of no little importance, took place, and lord westbury is reported to have said,-- "i did not assert that the house of lords had abolished hell with costs, although i have no doubt that the large majority would gladly assent to any such decree--all, in fact, except the bishops." as i never listen to after-dinner theology, i forbear comment on this subject; but before this time there had been a curious action brought by a churchwarden against his vicar for refusing to administer the sacrament to him, on the ground that he did not believe in the personality of the devil. after the decisions in the courts below, it was finally determined by the house of lords that the vicar was wrong. hence it was that westbury was reported to have said that the house of lords had abolished hell with costs. "what i did say," said westbury, "was that the poor churchwarden who did not at one time believe in the personality of the devil returned to the true orthodox christian faith when he received his attorney's bill." turning to me, his lordship said,-- "my dear hawkins, you shall write your reminiscences, and, what is more, they shall be printed in good type, and, what is more, the first copy shall be directed to me." and so it should be, if i only knew his address. chapter xliii. the little mouse and the prisoner. i come now to a small event which occurred during my judgeship, and which i call my little mouse story. i was presiding at the old bailey sessions, and a case came before me of a prisoner who was undergoing a term of two years' imprisonment with hard labour for some offence against the post office. the charge against him on the present occasion was attempting to murder or do grievous bodily harm to a prison warder. this officer was on duty in the prisoner's cell when the assault took place. the facts relied on by the crown were simple enough. the warder had gone into the cell to take the man's dinner, when suddenly the prisoner seized the knife brought for his use, and made a rush at the warder with it in his hand, at the same time uttering threats and imprecations. believing his life to be in danger, the warder ran to the door and got outside into the adjoining corridor, pulling the cell door to after him and closing it. he had no sooner escaped than the prisoner struck a violent blow in the direction the warder had gone, but the door being closed, it fell harmlessly enough. it left such a mark, however, that no doubt could be entertained as to the violence with which it was delivered and the probable result had it reached the warder himself. thus presented, the case looked serious. mr. montagu williams, who was counsel for the crown, felt it to be, as it undoubtedly was, his duty in common fairness to present not only the bare facts necessary for his own case, but also those which might be relied upon by the prisoner as his defence, or at all events in mitigation of punishment. in performing this duty, he elicited from his witness a very touching little history of the origin and cause of the crime. it was this:-- a poor little mouse had, somehow or other, managed to get inside the prisoner's cell; and one day, while the unhappy man was eating his prison fare, he saw the mouse running timidly along the floor. at last it came to a few crumbs of bread which the prisoner had purposely spread, and ran away with one of them into its hiding-place. the next day it came again, and found more crumbs; and so on from day to day, the prisoner relieving the irksomeness and the weary solitude of his confinement by tempting it to trust him, and become his one companion and friend, till at last it became so tame that it formed a little nest, and made its home in the sleeve of the prisoner's jail clothes. during the long hours of the dreary day it was his companion and pet; played with him, fed with him, and mitigated his solitude. it even slept with him at night. all this was, of course, against the prison rules. but the mouse had no reason to obey them. one unhappy day a warder came into the cell, when the poor mouse peeped out from his tiny hiding-place, and the officer, i presume, as a matter of duty, seized the little intruder on the spot and captured it. god help the world if every one did his strict duty in it! but--what to the prisoner seemed inexcusable barbarity--he killed the poor little mouse in the sight of the unhappy man whose friend and companion it had been. this infuriated him to such an extent that, having the dinner-knife in his hand--the knife which would have assisted at the mouse's banquet as well as his own--he rushed at the warder, who fortunately escaped through the open door of the cell, the prisoner striking the knife into the door. in the result the prisoner was indicted on the charge of attempting to murder the warder. the defence was that, as murder in the circumstances was impossible, _the attempt could not be established_, and on the authority of a case (which has, however, since been overruled) i felt bound to direct an acquittal; and i confess _i was not sorry_ to come to that conclusion, for it would have been a sad thing had the prisoner been convicted of an offence committed in a moment of such great and not unnatural excitement, and one for which penal servitude must have been awarded. the poor fellow had suffered enough without additional punishment. i can conceive nothing more keen than the torture of returning to his cell to grieve for the little friend which could never come to him again. chapter xliv. the last of lord campbell--wine and water--sir thomas wilde. life, alas! must have its sad stories as well as its mirthful. i have told few of the former, not because they have not been present to my mind, but because i think it useless to perpetuate them by narration. but for its occasional gleams of humour, life would indeed be dull, and ever eclipsed by the shadow of sorrow. one of the stories the chief baron told me is as indelibly fixed on my memory as it was on his. lord campbell had been so long and so prominently before the country that his death would be a theme of conversation in the world of literature, science, law, and fashion. but it was not his death that impressed me; it was the incidents that immediately attended it. "his lordship"--thus was the event related--"had been entertaining a party at dinner, and amongst them was his brother-in-law, colonel scarlett. in its incidents the dinner had been as lively and agreeable as those events in social and refined life usually are. scarlett had an important engagement with campbell in the city on the following monday, this being saturday night. as he rose to go scarlett wished his host good-night with a hearty shake-hands. "'good-night--good-night; we shall meet again on monday.'" alas! campbell died that night suddenly, and by a singular interposition of providence, scarlett died suddenly the next day, sunday. they met no more in this world. * * * * * in the course of my life i have suffered, like many others, from nameless afflictions--nameless because they do not exist. no one can localize this strange infirmity or realize it. you only know you have a sensation of depression. in every other respect i was perfectly well, yet i thought it was necessary to see a doctor. so it was, if i wished to be ill. being in this unhappy condition, i consulted sir james paget, then in the zenith of his fame. it did not take him very long to test me. i think he did it with a smile, for i felt a good deal better after it. "just tell me," said he, "do you ever drink any water?" "now it's coming," i thought; "he's going to knock me off my wine." i thought, however, i would be equal to the occasion, and said,-- "i know what you are driving at: you want to know if i ever mix a little water in my wine." "no, no, i don't," said he; "you are quite wrong, for if your water is good and your wine bad, you spoil your water; and if your wine is good and your water bad, you spoil your wine." i took his advice--which was certainly worth the fee--and never mixed my wine with water after that, although i have some doubt as to whether i had ever done so before. i came away in good heart, because i was so delighted that there was not a vestige of anything the matter with me. with a view to enable me to give each case due consideration before fixing the poor wretch's doom after conviction, i invariably ordered the prisoner to stand down until all were tried. i then spent a night in going through my notes in each case, so that if there were any circumstances that i could lay hold of by way of mitigation of the sentence, i did so. i do not mean to say that i did this in trifling cases, such as a magistrate could dispose of, but in all cases of magnitude possibly involving penal servitude. once, however, i had made up my mind as to what was, in accordance with my judgment, the sentence to be passed, i took care never to alter it upon any plea in mitigation whatever. for this line of conduct i had the example of sir thomas wilde, when, as lord chief justice of the court of common pleas, he travelled the home circuit. he was a marvellous and powerful judge in dealing with the facts of a case. he had tried a prisoner for larceny in stealing from a house a sack of peas. the prisoner's counsel had made for him a very poor and absurd defence, in which, over and over again, he had reiterated that one pea was very like another pea, and that he would be a bold man who would swear to the identity of two peas. this miserable defence made the lord chief justice angry, and he summed up the case tersely but crushingly to this effect: "gentlemen, you have been told by the learned counsel very truly that one pea is very like another pea, and if the only evidence in this case had been that one pea had been taken from the house of the prosecutor, and a similar pea had been found in the prisoners house, i for one should have said it would have been insufficient evidence to justify the accusation that the prisoner had taken it. "but such are _not_ the facts of this case; and when you find, as was the fact here, that on march a sack appears in a particular place, marked with the prosecutor's initials, safe in his house at night, where it ought to have been but was not, on the morning of the st; and when you find that on that morning a sack of peas of precisely similar character was in the house of the prisoner in a precisely similar sack behind the door, the question very naturally arises, _how came_ those peas in that man's house? he says he found them; do you believe him? did it ever occur to you, gentlemen, to find a similar sack of peas in the dead of the night on any road on which you chanced to be travelling? "the prosecutor says the prisoner stole them, and that is the question i ask you to answer. did he or not, in your opinion, steal them?" i need not say what the verdict was. the man was _put back for sentence_. that is the point i am upon. on the following morning the lord chief justice, still a bit angry with the prisoner's counsel for the miserable imposture he had attempted upon the jury, said,-- "god forbid, prisoner at the bar, that the defence attempted by your counsel yesterday should aggravate the punishment which i am about to inflict upon you; and with a view to dispel from my mind all that was then urged on your behalf, i have taken the night to consider what sentence i ought to pronounce." having said thus much about the speech for the defence, he gave a very moderate sentence of two or three months' imprisonment. every sentence that this chief justice passed had been well thought out and considered, and was the result of anxious deliberation--that is to say, in the serious cases that demanded it. of course, i do not claim for my adopted system an infallibility which belongs to no human device, but only that during some years, by patiently following it, i was enabled the better to determine how i could combine justice with leniency. chapter xlv. how i cross-examined prince louis napoleon. i have been often questioned in an indirect manner as to the amount of my income and the number of my briefs. i do not mean by the income tax commissioners, but by private "authorities." i was often _told_ how much i must be making. sometimes it was said, "oh, the associates' office verdict books show this and that." "why, hawkins, you must be making thirty thousand a year if you are making a penny. what a hard-working man you are! how _do_ you manage to get through it?" well, i had no answer. it is a curious inquisitiveness which it would do no one any good to gratify. i did not think it necessary to the happiness of my friends that they should know, and if it would afford _me_ any satisfaction, it was far better that they should name the amount than i. they could exaggerate it; i had no wish to do so. it is true enough in common language i worked hard, but working by system made it easy. slovenly work is always hard work; you never get through it satisfactorily. it was by working easily that i got through so much. "never fret" and "_toujours pret_" were my mottoes, as i told the chaplain; i hope he remembers them to this day. if they would not help him to a bishopric, nothing would. but i will say seriously that nothing is so great a help in our daily struggles as _good temper_, and with that observation i leave my friends still to wonder how i got through so much. judges often talk over their experiences at the bar. sometimes i talked of mine, and on one occasion told the following curious incident in my long career. i mention this circumstance as a curiosity only so far as the incident is concerned, but as more than a curiosity so far as the legality of evading the substance of the law by a technicality is concerned. all men are not privileged to cross-examine royalty, and especially future emperors. on july , , which was not very long after my call to the bar, prince louis napoleon, who afterwards became emperor of the french, was residing in england. of course, in looking back upon a man who afterwards became an emperor, the proportions seem to have altered, and he looks greater than his figure actually was. he is more important in one's eyes, and therefore from this point of view the event seems to be of greater magnitude than the mere police-court business that it was. when a man becomes great, the smallest details of his career increase in value and importance. the prince had given a man of the name of charles pollard into custody for stealing and obtaining by fraud two bills of exchange for £ , each. i was instructed by one saul (not of tarsus) to defend, and old saul thought it would be judicious to cross-examine the prince into a cocked hat, little dreaming what kind of a cocked hat our opponent would one day wear. but saul, not content with this ordinary drum-beating kind of old bailey performance, in which there is much more alarm than harm, instructed me to make a few inquiries as to the prince's private life, and so _show him up_ in public. saul loved that kind of persecution. to him the witness-box was a pillory, notwithstanding there was more mud attaching to the throwers than to the mere object of their attention. young as i was in my profession, i had sense enough to know that to dip into a prosecutor's private history, and the history of his father and grandfather, and a succession of grandmothers and aunts, was hardly the way to show that the prisoner had not stolen that gentleman's property, but was a good way to prevent the prince from recommending him to mercy. i therefore, in my simplicity, asked old saul what the uncle of the prince and his voyage in the _bellerophon_, etc., had to do with this man's stealing these two bills of exchange. "never mind, mr. hawkins, you do it; it has a great deal to do with it." however, i made up my own mind as to the course i should pursue, and having carefully read my "instructions," found that the man had been unjustly accused by this napoleon--there never was a man so trampled on--and every word of the whole accusation was false. _so_ did some solicitors instruct young counsel in those days. i started my business of cross-examination, accordingly, with a few tentative questions, testing whether the ice would bear before i took the other foot off dry land. it did not seem to be very strong, i thought. some of them were a little bewildering, perhaps, but that, doubtless, was their only fault, which the prince was desirous of amending, and he graciously appealed to me in a very sensible manner by suggesting that if i would put a question that he _could_ answer, he would do so. i thought it a fair offer, even from a prince, if i could only trust him. i kept my bargain, and definitely shaped my examination so that "yes" and "no" should be all that would be necessary. we got on very well indeed for some little time, his answers coming with great readiness and truth. he was perfectly straightforward, and so was i. "yes, sir," "no, sir;" that was all. as i have said, at this time i had not had much experience in cross-examination, but i had some intuitive knowledge of the art waiting to be developed. napoleon gave me my first lesson in that department. "i am afraid, sir," said his highness, "you have been sadly misinstructed in this case." "i am afraid, sir, i have," said i. "one or the other of us must be wrong, and i am much inclined to think it's my solicitor." it was a nice little bull, which the prince liked apparently, for he laughed good-humouredly, and especially when i found, as i quickly did, that my strength was to sit still, which i also did. i had learned by this exhibition of forces that there _was_ a defence, if i could only keep it up my sleeve. to expose it before the magistrate would simply enable clarkson, who was opposed to me, to bring up reinforcements, and knock me into a cocked hat instead of napoleon. old saul knew nothing whatever about my intended manoeuvre, nor did clarkson or his solicitor. i knew the man would be committed for trial; the magistrate had intimated as much. i therefore said nothing, except that i would reserve my defence. had i said a word, clarkson would have shaped his indictment to meet the objection which i intended to make; the man, however, was committed to the old bailey in total ignorance of what defence was to be made. the case was tried before baron alderson, as shrewd a judge, perhaps, as ever adorned the bench. when i took my point, he at once saw the difficulty napoleon was in--a difficulty from which no napoleon could escape even by a _coup d'état_. it was, in fact, this--simple as a b c:-- when the bills of exchange were received by pollard, although he intended to defraud, they were _neither drawn nor accepted_, and so were not bills of exchange at all; another process was necessary before they could become so even in appearance, and that was forgery. moreover, there was included in this point another objection--namely, that the _stamps_ signed by the prince having been handed to him with the intention that they _should be subsequently filled up_, they were not _valuable securities_ (for stealing which the ill-used pollard was indicted) at the time they were appropriated, and could not therefore be so treated. in short, the legal truth was that pollard neither stole nor obtained either _bill of exchange_ (for such they were not at that time) or valuable security. such was the law. i believe napoleon said the devil must have made it, or worked it into that "tam shape!" there were many technicalities in the law of those days, and justice was often defeated by legal quibbles. but the law was so severe in its punishments that justice herself often connived at its evasion. at the present day there is a gradual tendency to make punishment more lenient and more certain--to remove the entanglements of the pleader, and render progress towards substantial instead of technical justice more sure and speedy. napoleon's defeat could not have occurred at the present day--not, at all events, in that "tam shape." in a case in which the member of st. ives was petitioned against on the ground of treating, before lush, j., i was opposed by russell (afterwards lord chief justice and lord russell of killowen). a.l. smith was my junior, and i need not say he knew almost everything there was to be known about election law. there was, however, no law in the case. no specific act of treating was proved, but we felt that general treating had taken place in such a wholesale manner that our client was affected by it. so we consented to his losing his seat--that is to say, that the election should be declared _void_--merely void. as the other side did not seem to be aware that this void could be filled by the member who was unseated, they did not ask that our client should not be permitted to put up for the vacancy, although this was the real object of my opponent's petition. he wanted the seat for himself, but knew that he had not the remotest chance against his unseated opponent. his surprise, therefore, must have been as great as his chagrin when, the very night of the decision which unseated him, he came forward once more as a candidate. the petition had increased his popularity, and he won the seat with the greatest ease, and without any subsequent disturbance by the former petitioner. i have told you of a curious trial before a recorder of saffron walden, and my memory of that event reminds me of another which took place in that same abode of learning and justice. joseph brown, q.c., and thomas chambers, q.c., were brother benchers of mine, and when we met at the parliament chamber after dinner it was more than likely that many stories would be told, for we often fought our battles over again. at the time i speak of knox was the recorder of that important borough, and was possessed of all the dignity which so enhances a great officer in the eyes of the public, whether he be the most modest of beadles in beadledom, or the highest recorder in christendom. to give himself a greater air of importance, knox always carried a _blue umbrella_ of a most blazing grandeur. he was looked up to, of course, at saffron walden, as their greatest man, especially as he occupied the best apartments at the chief brimstone shop in the town. when i say _brimstone_, i mean that it seemed to be its leading article; for there were a great many yellow placards all over and about the emporium, which, perhaps, ought to have been called a "general shop." there were three men up before knox for stealing malt; a very serious offence indeed in saffron walden, where malt was almost regarded as a sacred object--until it got into the beer. "tom" chambers (afterwards recorder of london) was defending these prisoners, and i have no doubt, from the conduct of knox, acquired a great deal of that discrimination of character which afterwards so distinguished him in the city of london. the degrees of guilt in these persons ought to be noted by all persons who hold, or hope to hold, a judicial position. as to the first man, the actual thief, there could be no doubt about his crime, for he was actually wheeling the two or three shovelfuls of malt in a barrow; so there was not much use in defending him. about the second man there was not the same degree of certainty, for he had never touched the malt or the barrow, and there was no evidence that he knew the first man had stolen it. the only suspicion--for it was nothing more--against him was that he was seen to be walking _along the highway_ near the man who was wheeling the barrow, and as it was daytime, many others were equally guilty. the third man was still less implicated, for all that appeared against him was that _at some time or other_ he had been seen, either on the day of the theft or just before, to be in a public-house with the thief and asking him to have a drink. if it had not been at saffron walden, where they are so jealous of their malt and such admirers of their maltsters, there would have been no case against any one but the actual thief; and if the recorder had known the law as well as he knew saffron walden, or half as much as saffron walden admired him, he would have ruled to that effect. however, he pointed out to the jury the cases one by one with great care and no stint of language. "against the first," said he, "the case is clear enough: he is caught with the stolen goods in his possession. in the second case, _perhaps_, it is not quite so strong, you will think; but it is for _you_, gentlemen, not for _me_, to judge. you will not forget, gentlemen, he was walking along by the side of the actual thief, and it is for you to say what that means." then, after clearing his throat for a final effort, he said,-- "now we come to the third man. where was he? i must say there is a slight difference between his case and that of the other two men, who might be said to have been caught in the very act; but it's for _you_, gentlemen, not for _me_. it is difficult to point out item by item, as it were, the difference between the three cases; but you will say, gentlemen, whether they were not all mixed up in this robbery--it's for _you_, gentlemen, not for _me_." the jury were not going to let off three such rogues as the recorder plainly thought them, and instantly returned a verdict of guilty against all. "i agree with the verdict," said the recorder. "it is _a very bad case_, and a mercantile community like saffron walden must be protected against such depredators as you. no doubt there are degrees of guilt in your several cases, but i do not think i should be doing my duty to the public if i made any distinction in your sentences: you must all of you undergo a term of five years' penal servitude." whereupon tom chambers was furious. up he jumped, and said,-- "really, sir; really--" "yes," said knox, "really." "well, then, sir, you can't do it," said the counsel; "you cannot give penal servitude for petty larceny. here is the act" (reading): "'unless the prisoner has been guilty of any felony before.'" "very well," said the recorder; "you, brown, the actual thief, and you, jones, his accessory in the very act, not having been convicted before, i am sorry to say, cannot be sentenced to more than two years' imprisonment with hard labour, and i reduce the sentence in your cases to that; but as to you, robinson, yours is a very bad case. the jury have found that you were _mixed up_ in this robbery, and i find that you have been convicted of stealing apples. true, it's a good many years ago, but it brings you within the purview of the statute, and therefore your sentence of five years will stand." chapter xlvi. the new law allowing the accused to give evidence--the case of dr. wallace, the last i tried on circuit. i should like to make an observation on the recent act for enabling prisoners to go into the witness-box and subject themselves, after giving their evidence, to cross-examination. it must be apparent to every one, learned and unlearned in its mysteries, that no evidence can be of its highest value, and often is of no value, until sifted by cross-examination. i was always opposed to this process as against an accused person, because i know how difficult it is under the most favourable circumstances to avoid the pitfalls which a clever and artistic cross-examiner may dig for the unwary. it did not occur to me in that early stage of the discussion on the bill that a really true story _cannot_ be shaken in cross-examination, and that only the _false_ must give way beneath its searching effect. i had to learn something in advocacy; indeed, i was always learning, and the best of us may go on for ever learning, as long as this wonderful and mysterious human nature exists. however, i am not writing philosophical essays, but relating the facts of my simple life, and i confess that the case that came before me on this occasion totally upset my quiet repose in all the comfortable traditions of the past. human nature had something which i had not seen: it arose in this way. a doctor was accused of a terrible crime against a female patient. i need not give its details; it is sufficient to say that if the girl's statement was true penal servitude for life was not too much, for he was a villain of the very worst character. taking the ordinary run of evidence, if i may use the word, and the ordinary mode of cross-examination, which, in the hands of unskilled practitioners, generally tends to corroborate the evidence-in-chief, the case was overwhelmingly proved, and how sad and painful it was to contemplate none can realize who do not understand anything below the surface of human existence. i had watched the case with the anxious care that i am conscious should be exercised in all inquiries, and especially criminal inquiries, that come before one. i watched, and, let me say, _especially watched_, for any point in the evidence on which i could put a question in the prisoner's favour. upon that subject i never wavered throughout the whole of my career, and the testimony of the letters which i received from the most distinguished members of the criminal bar--not to say that they are not equally distinguished in the civil--will, i am sure, bear out my little self-praise upon a small matter of infinite importance. everything in this case seemed to be overwhelmingly against the unhappy doctor. no one in court, except himself, _could_ believe on the evidence but that he was guilty. i, who through my whole life had been studying evidence and the mode in which it was delivered, believed in the man's guilt, and felt that no cross-examination, however subtle and skilfully conducted, could shake it. i felt for the man--a scholar, a scientist--as one must feel for the victim of so great a temptation. but i felt also that he was entitled, on account of all those things which aroused my sympathy, to the severest sentence, which i had already considered it would be my duty to award him. then, under the new act, which i had spoken against and written against, as one long associated with all the bearings of evidence given in the witness-box, the poor doctor stepped into that terrible trap for the untruthful. let me now observe that, even before he was sworn, his _manner_ made a great impression on my mind. and on this subject i would like to say that few judges or advocates sufficiently consider it. the greatest actor has a manner. the man who is not an actor has a manner, and if you are only sufficiently read in the human character, it cannot deceive you, however disguised it may be. a witness's evidence may deceive, but his manner is the looking-glass of his mind, sometimes of his innocence. it was so in this case. the man was not acting, and he was not an actor. this made the first impression on my mind, and i knew there _must_ be something beneath it which only _he_ could explain. i waited patiently. it was much more than life and death to this man. the next thing that impressed me was that there was not the least confusion in his evidence or in himself. his tone, his language, could only be the result of conscious innocence. it was not very long before i gathered that he was the victim of a cruel and cowardly conspiracy. it was absolutely a case of _blackmailing, and nothing else_. i believed every word the man said, and so did the jury. his evidence _acquitted him_. he was saved from an ignominious doom by the new act, and from that moment i went heart and soul with it: however much it may be a danger to the guilty, it is of the utmost importance to the innocent. this case was not finished without a little touch of humour. when half-past seven arrived--an hour on circuit at which i always considered it too early to adjourn--the jury thought it looked very like an "all-night sitting," although i had no such intention, and one of their body or of the bar, i forget which, raised the question on a motion for the adjournment of the house. i was asked, i know, by some impatient member of the bar whether a case in which _he_ was engaged could not go over till the morning. this gave immense encouragement to an independent juryman, who evidently was determined to beard the lion in his den, and possibly shake off "the dewdrops of his british indignation." i never believed in british lions, except on his majesty's quarterings; and although they look very formidable in heraldry, i never found them so in fact. indeed, if the british lion was ever a native of the british isles, he must have become extinct, for i have never heard so much as an imitation growl from him except in hyde park on a sunday. the british lion, however, in this case seemed to assert himself in the jury-box, and rising on his hind legs, said in a husky voice, which appeared to come from some concealed cupboard in his bosom,-- "my lord!" "yes?" i said in my blandest manner. "my lord, this 'ere ---- is a little bit stiff, my lord, with all respect for your lordship." "what is that, sir?" "why, my lord, i've been cramped up in this 'ere narrer box for fourteen hours, and the seat's that hard and the back so straight up that now i gets out on it i ain't got a leg to stand on." "i'm sorry for the chair," i said. he was a very thick-set man, and the whole of the jury burst into a laugh. then he went on, with tears in his eyes,-- "my lord, when i went home last night arter sittin' here so many hours i couldn't sleep a wink." i could not help saying,-- "then it is no use going to bed; we may as well finish the business." that was all very well for him, but another juryman arose, amidst roars of laughter, and lifted up a hard, wooden-bottomed chair, and beat it with his heavy walking-stick. the chair was perfectly indifferent to the treatment it was receiving after supporting the juryman for so many hours without the smallest hope of any reward, and i then asked,-- "is that to keep order, sir?" the excitement continued for a long time, but at last it subsided, and i suggested a compromise. i said probably the gentlemen in the next case would not speak for more than one hour each, and if they would agree to this i would undertake to sum up in _five minutes_. the husky lion sat down, and so did the musician. the jury acquitted and went home. these are some of the caprices of a jury which a judge has sometimes to put up with, and it has often been said that judges are more tried than prisoners. perhaps that is so, especially when, if they do not get the kind of rough music i have mentioned from the jury-box, they sometimes receive a by no means complimentary address from the prisoner. one occurs to my mind, with which i will close this chapter. i had occasion to sentence to death a soldier for a cruel murder by taking the life of his sergeant. it was at winchester, and after i had uttered the fatal words the culprit turned savagely towards me, and in a loud, gruff voice cried, "curse you!" i made no remark, and the man was removed to the cells. very humanely the chaplain went to the prisoner and endeavoured to bring him to a proper state of mind with regard to his impending fate. on the day appointed for the execution i received by post a long letter from the clergyman, enclosing another written on prison paper. the letter was to tell me that for ten days he could make no impression on the condemned man; but on the tenth or twelfth day he expressed his sincere sorrow that he had cursed me for passing on him the sentence he had so well deserved, and his great desire was to make a humble apology to me in person. he was told that that was impossible, as i could not come to him, nor could he go to me. whereupon he begged to be allowed to write this humble apology. this he was permitted to do, and the letter from the culprit, who was hanged that morning, i was reading at the very moment of his execution. it contained, i believe, sincere expressions of contrition for the cruel deed he had done, but was mostly taken up with apologies to me for having cursed me after advising him to prepare for the doom that awaited him. he begged my forgiveness, which, i need not say, i freely gave. chapter xlvii a farewell memory of jack. poor little jack is dead! it is a real grief to me. a more intelligent, faithful, and affectionate creature never had existence, and to him i have been indebted for very many of the happiest hours of my life. poor dear little jack! he lived with me for many years; and at last, i believe, some miscreant poisoned him, for he was taken very ill with symptoms of strychnine, and died in a few hours in the early morning of may , . i was with him when he died. i never replaced him, and to this hour have never ceased to be sad when i think of the merciless and cruel fate by which the ruffian put an end to his dear little life. he was buried under some shrubs in hyde park, where i hope he sleeps the sleep of good affectionate dogs. it is ten years ago, and yet there is no abatement of my love for him, hardly any of my sorrow. he always occupied the best seat in the sheriff's carriage on circuit, and looked as though he felt it was his right. he slept by my side on a little bed of his own. at norwich, i think, he made his first appearance in state. the moment he entered the house he appropriated to himself the chair of state, which had been provided by the local upholsterer for the express use of queen alexandra, then princess of wales, on her first visit to norwich to confer honour and happiness on queen victoria's subjects in the eastern counties. nobody, however, molested jack in his seat, and, i believe, had it been one of the seats for the county there would have been no petition to disturb him. he would have been as faithful a member as the immortal toby, m.p. for barkshire, of mr. punch, to whom ever my best regards. jack considered himself entitled to precedence wherever he went, and maintained it. he was a famous judge of upholstery, and the softest chair or sofa, hearthrug or divan, was instantly appropriated. this sometimes made the local dignitaries sit up a little. they might be accustomed to the dignity of one of her majesty's judges, but the impudence of her majesty's "jack"--for so he deemed himself on circuit--was a little beyond their aldermanic natures. i was much and agreeably surprised to find that the press everywhere sympathized with my loss of jack, and many an extract i made containing their very kind remarks. my room might have been one of romeike's cutting-rooms. here is one i will give as a sample. i am sorry i cannot positively state the name of the journal, but i am almost sure it is from the _daily telegraph_. "an item of judicial intelligence, which may not everywhere be duly appreciated, is the death of mr. justice hawkins's fox terrier jack. jack has been his lordship's most constant friend for many years. with some masters such a useful dog as he was would have found going on circuit a bore; but with sir henry hawkins, who knows what kind of life suits a dog, and likes to see that he enjoys it, going on circuit was a career of adventure. the judge was always out betimes to give jack a long morning walk, and when his duties took him to small county towns he often rose with the farmers for no other purpose." here is another paragraph; and i should like to be able to give the writer's name, for it is very pleasant at all times to find expression of true love for animals, whose devotion and faithfulness to man endear them to us:-- "sir henry hawkins has my sincere sympathy in his great bereavement. jack, the famous fox terrier who accompanied his master everywhere, is dead. innumerable are the things told of jack's devotion to sir henry, and of sir henry's devotion to jack. i first made their acquaintance at worcester railway station some years ago, when i saw jack marching solemnly in the procession of officials who had come with wands and staves and javelins to receive sir henry hawkins at the opening of the assizes. jack was on one or two special occasions, i believe, accommodated with a seat on the bench; and at maidstone, when the lodgings caught fire, sir henry rushed back at the risk of his life to save his faithful little dog." these are small memories, perhaps, but to me more dear than the praises too often unworthily bestowed on actions unworthy to be recorded. but here i pause. jack rests in his little grave in hyde park, and i sometimes go and look on the spot where he lies. many and many an affectionate letter was written to me bewailing the loss of our little friend. only one of these i shall particularly mention, because it shows how immeasurably superior was jack to the lady who wrote it, in that true and sincere feeling which we call friendship, and which, to my mind, is the bond of society and the only security for its well-being. she was a lady who belonged to what is called "society," the characteristic of which is that it exists not only independently of friendship, but in spite of it. after condoling with me on my loss and showing her sweet womanly sympathy, she concluded her letter by informing me that she had "one of the sweetest pets eyes ever beheld, a darling devoted to her with a faithfulness which would really be a lesson to 'our specie,'" and that, in the circumstances, she would let me have her little darling for _five pounds_. i was so astonished and angry at the meanness of this "lady of fashion" that i said--well, perhaps my exact expression had better be buried in oblivion. ballad of the unsurprised judge, .[a] [footnote a: it was a well-known expression of sir henry hawkins when on the bench, "i should be surprised at nothing;" and after the long and strange experiences which these reminiscences indicate, the literal truth of the observation is not to be doubted. this clever ballad, which was written in , seems sufficiently appropriate to find a place in these memoirs, and i wish i knew the name of the writer, that my thanks and apologies might be conveyed to him for this appropriation of them.] ("mr. justice hawkins observed, 'i am surprised at nothing,'"--_pitts v. joseph, "times" report, march _.) all hail to sir henry, whom nothing surprises! ye judges and suitors, regard him with awe, as he sits up aloft on the bench and applies his swift mind to the shifts and the tricks of the law. many years has he lived, and has always seen clear things that nox seemed to hide from our average eyes; but still, though encompassed with all sorts of queer things, he never, no, never, gives way to surprise. when a rogue, for example, a company-monger, grows fat on the gain of the shares he has sold, while the public gets lean, winning nothing but hunger and a few scraps of scrip for its masses of gold; when the fat man goes further and takes to religion, a rascal in hymn-books and bibles disguised, "it's a case," says sir henry, "of rook _versus_ pigeon, and the pigeon gets left--well, i'm hardly surprised." there's a heath at newmarket, and horses that run there; there are owners and jockeys, and sharpers and flats; there are some who do nicely, and some who are done there; there are loud men with pencils and satchels and hats. but the stewards see nothing of betting or money, as they stand in the blinkers for stewards devised; their blindness may strike henry hawkins as funny, but he only smiles softly--he isn't surprised. so here's to sir henry, the terror of tricksters, of law he's a master, and likewise a limb; his mind never once, when its purpose is fixed, errs: for cuteness there's none holds a candle to him. let them try to deceive him, why, bless you, he's _been_ there, and can track his way straight through a tangle of lies; and though some might grow gray at the things he has seen there, he never, no, never, gives way to surprise. by the courtesy of sir francis burnand, who most kindly obtained permission from messrs. bradbury and agnew, i insert the following poem, which appeared in a february number of _punch_ in the year :-- the woman and the law. (a true story, told before mr. justice hawkins at the recent liverpool assizes--_vide daily telegraph_, february .) in the criminal dock stood a woman alone, to be judged for her crime, her one fault to repair, and the man who gave evidence sat like a stone, with a look of contempt for the woman's despair! for the man was a husband, who'd ruined a life, and broken a heart he had found without flaw; he demanded the punishment due to the wife, who was only a woman, whilst his was the law! a terrible silence then reigned in the court, and the eyes of humanity turned to the dock; her head was bent down, and her sobbing came short, and the jailer stood ready, with hand on the lock of the gate of despair, that would open no more when this wreckage of beauty was hurried away! "let me speak," moaned the woman--"my lord, i implore!" "yes, speak," said the judge. "i will hear what you say!" "i was only a girl when he stole me away from the home and the mother who loved me too well; but the shame and the pain i have borne since that day not a pitying soul who now listens can tell! there was never a promise he made but he broke; the bruises he gave i have covered with shame; not a tear, not a prayer, but he scorned as a joke! he cursed at my children, and sneered at my fame! "the money i'd slaved for and hoarded he'd rob; i have borne his reproaches when maddened with drink. for a man there is pleasure, for woman a sob; it is he who may slander, but she who must think! but at last came the day when the law gave release, just a moment of respite from merciless fate, for they took him to prison, and purchased me peace, till i welcomed him home like a wife--at the gate! "was it wrong in repentance of man to believe? it is hard to forget, it is right to forgive! but he struck me again, and he left me to grieve for the love i had lost, for the life i must live! so i silently stole from the depths of despair, and slunk from dark destiny's chastening rod, and i crept to the light, and the life, and the air, from the town of the man to the country of god! "'twas in solitude, then, that there came to my soul the halo of comfort that sympathy casts; he was strong, he was brave, and, though centuries roll, i shall love that one man whilst eternity lasts! o my lord, i was weak, i was wrong, i was poor! i had suffered so much through my journey of life, hear! the worst of the crime that is laid at my door: i said i was widow when, really a wife! "here i stand to be judged, in the sight of the man who from purity took a frail woman away. let him look in my face, if he dare, if he can! let him stand up on oath to deny what i say! 'tis a story that many a wife can repeat, from the day that the old curse of eden began; in the dread name of justice, look down from your seat! come, sentence the woman, and shelter the man!" a silence more terrible reigned than before, for the lip of the coward was cruelly curled; but the hand of the jailer slipped down from the door made to shut this sad wanderer out from the world! said the judge, "my poor woman, now listen to me: not one hour you shall stray from humanity's heart when thirty swift minutes have sped, you are free in the name of the law, which is mercy, depart!" chapter xlviii. old turf friends. an announcement in the morning papers of the death of mr. richard c. naylor of kelmarsh, northamptonshire, at the age of eighty-six, carried me back to the far-off days when, tempted by the hospitality and kind friendship of lord falmouth, i became a regular visitor of newmarket heath--an _habitué_ during the splendid dictatorship of admiral rous! i would like to mention the names of some of the celebrities of the turf of those days, many of them my frequent companions, and no less my real and sincere friends. time, however, fails. but in looking through the piles of letters with which the kindness of my friends has favoured me from time to time, i come across many a relic of the past that recalls the pleasantest associations. even a telegram, most prosaic of correspondence, which i meet with at this moment, is a little poem in its way, and brings back scenes and circumstances over which memory loves to linger. it is nothing in itself, but let any one who has loved country life and enjoyed its sports and its many friendships consider what forgotten pleasures may be brought to mind by this telegram. _telegram_. dorchester, _november_ , ' . handed in at quorn at . a.m. received here at . a.m. _to_ sir h. hawkins, the judges' house, dorchester. just returned from badminton to find the most charming present from you, which i shall always regard with the greatest value, and think you are too kind, in giving me such a present. am writing.--lonsdale. "at _quorn_," i repeat, and then i find the letter which lord lonsdale was writing. this is it:-- churchill cottage, quorn, loughborough, _tuesday, november_ , ' . my dear sir henry,--how can i thank you enough for your magnificent present? it is, indeed, kind of you thinking of me, and i can assure you that the spurs shall remain an "heirloom" to decorate the dinner-table (a novel ornament) and match the silver spur poor old white melville gave me. why you should have so honoured me i do not know, but that i fully value your kindly thought i do know. is there any chance of your being in these parts? if so, _do_ pay me a visit. and with many, many thanks for your extreme kindness, believe me yours very truly, (_signed_) lonsdale. alas! almost all of them have passed away, yet they will live while the memory of the generation lasts which called them friends. they have vanished from the scenes in which they played so prominent a part, and yet their influence remains. there was the old admiral himself, the king of sportsmen and good fellows. horse or man-o'-war, it was all one to him; and although sport may not be regarded as of the same importance with politics, who knows which has the more beneficial influence on mankind? i would have backed admiral rous to save us from war, and if we drifted into it to save us from the enemy, against any man in the world. then there was his bosom friend george payne, and the old, old squire george osbaldeston, lord falmouth, w.s. crawfurd, the earl of wilton, lord bradford, lord rosslyn, lord vivian, the duke of hamilton, george brace, general mark wood, alexander, lord westmorland, the earl of aylesbury, clare vyner, dudley, milner, sir john astley ("the mate"), lords suffolk and berkshire, coventry and clonmell, manton, ker seymer--the names crowd upon my memory; then, alas! a long, long while after, henry calcraft, lord granville, lord portsmouth, and "prince eddy," lord gerard, the earl of hardwicke, viscount royston, sam batchelor, and tyrwhitt wilson. these are some of those whom i remember, and, by the way, i ought to add the duke of westminster and tom jennings, names interesting and distinguished, and indicative of a phase of life ever full of enjoyment such as is not known out of the sporting world, where excitement lends to pleasure the effervescence and sparkle which make life something more than animal existence. this is true in hunting, racing, cricket, and i should think intensified in the highest degree in a charge of cavalry. take balaclava, for instance: the very fact of staking life at such odds must have compressed into that moment a whole life of ordinary pleasure. i will mention a few more names, and then close another chapter of my memory. there was mr. j.a. craven, the duke of st. albans, the duke of beaufort, montagu tharp, major egerton, general pearson, lord calthorpe, henry saville, douglas gordon (mr. briggs), oliver montagu, henry leeson, the earl of milltown, sir henry devereux, johnny shafto, douglas phillips, randolph churchill, lord exeter, lord stamford. of the famous jockeys and trainers there were john scott, mat dawson, fred archer. there were also james weatherby, judge clark, and tattersall. chapter xlix. leaving the bench--lord brampton. at length the time came when i was to bid good-bye to the queen's bench and the court no. in which i had so long presided, where i had met and made so many friends, all more or less learned in the law. i had been a judge since the year , and time, in its never-ceasing progress, had whispered to me more than once, "tarry not too long upon the scene of your old labours, where your presence has made you a familiar object to all the members of every branch of your great and responsible profession; and while health and vigour and intelligence still, by god's blessing, remain to you, apparently unimpaired by lapse of years, take some of that rest and repose which you have earned, ere it be too late." thereupon, without any needless ceremony of leave-taking, at the close of the year i took my leave of the bench with a simple bow. silently, but with real affection for all i was leaving behind me, i quitted my occupation on the bench. i considered this to be a far more dignified way of making my exit than meeting face to face the whole of the court and its practitioners and officers, and leaving it to the eloquent and friendly speech of the attorney-general to flatter me far beyond my deserts in the customary farewell address which he would have offered to me. i thought it better to rely upon the expressions and conduct of those who knew me well, and to feel that they appreciated the discharge of the many arduous duties which i had been called on to perform. as some evidence of this, i would point to the good wishes from all kinds and classes of people which have followed me into private life, and the numerous letters which every post brought me, and which would fill a volume in themselves. but the crowning honour was graciously conferred upon me by her late majesty queen victoria on january , , through the then marquis of salisbury, who signified that her majesty intended to raise me to the peerage. his lordship's letter announcing the gracious act i recall with feelings of pleasure and gratitude, and i need not say that it will, while life lasts, be my greatest pride. i was subsequently sworn of her majesty's privy council, and for more than two years attended pretty regularly in the final court of appeal. it does not behove me to say more on this subject than that the acknowledgment of my long services by the sovereign must ever be my greatest pride and satisfaction. on february , , i was introduced to the house of peers, and took my seat. i chose for my name and designation the title of baron brampton, which her majesty was pleased to approve. my little property, therefore, which i mentioned earlier in my reminiscences, conferred on me what was more valuable than its income--the title by which i am now known. speaking with reference to those long years ago when i was dissuaded from my career by those who doubtless had the most affectionate interest in my welfare, and to whose advice i proved to be so undutiful, i cannot help, whether vanity be attributed to me or not, contrasting the position of the penniless articled clerk in the attorney's office and the situation which came to me as the result of unremitting labour. let me state it with pride as well as humility that my rewards have been beyond my dreams and far above my deserts. on february , in a committee room of the house, i was met by my supporters and those whose duties made them a portion of the ceremony, and realized the ambition that came to me only in my later life. some members of my family would have preferred the family name to be associated with the title. i must confess i had some attachment for it, as it had rendered me such good service, and it was somewhat hard to give it up. if, however, i had had any hesitation, it would have been removed when one afternoon lord ---- called on me, and in his chaffing manner said,-- "well, i hear you are to be lord '_awkins_ of '_itchin_, 'erts." "be ---- if i will!" said i; "brampton's the only landed estate i have inherited, and although the old ladies who are life-tenants kept me out of it as long as they could, i shall take my title from it as the only thing i am likely to get out of it." "bravo!" said he. "i don't like 'awkins of 'itchin, 'erts. _brampton_ sounds like a title; and so my hearty congratulations, and may you and her ladyship live long to enjoy it!" "mr. punch" was good enough to furnish me with a beautiful and humorous coat of arms, done by that very talented artist mr. e.t. reed. * * * * * since the commencement of this volume many of the old friends mentioned in it with affectionate remembrance have gone to their rest, and i am steadily approaching my own end. trusting to the mercy and goodness of god, i patiently await my summons. i can but humbly add that to the best of my poor ability i have ever conscientiously endeavoured in all things to do my duty. and now, as i lay down my pen, dreamily thinking over old names, old friends, and old faces of bygone years, i live my life over again. everything passes like a picturesque vision before my eyes. i can see the old coach which brought me from my home--a distance of thirty miles in eight hours--a rapid journey in those days. this was old kirshaw's swift procedure. then there was the "bedford times" i travelled with, which was whitehead's fire-engine kind of motor; but generally in that district john crowe was the celebrated whip. then passes before me the old cock that crew over the doorway in fleet street, a johnsonian tavern of mighty lineage and celebrity for chops and steaks. and i see the old waiter, with his huge pockets behind, in which he deposited the tons of copper tips from the numberless diners whom he attended to during his long career. then i observe the rainbow, by no means such a celebrity, although more brilliant than the mitre by its side; and in the mitre i see (but only in imagination) johnson and goldsmith talking over the quaint philosophy of wine and letters till three o'clock in the morning, finishing their three or four bottles of port, and wondering why they were a little seedy the next day. and there sits at my side, enjoying his chop, tom firr, described as the king of huntsmen--a true and honest sportsman, simple, respectful, and respected, whose name i will not omit from my list of celebrities, for he is as worthy of a place in my reminiscences as any m.f.h. you could meet. chapter l. sentences. there is no part of a judge's duty which is more important or more difficult than apportioning the punishment to the particular circumstances of a conviction. as an illustration of this statement i would take the offence of bigamy, where in the one case the convicted person would deserve a severe sentence of imprisonment, while in another case he or she might be set at liberty without any punishment at all. such cases have occurred before me. the sentence of another judge upon another prisoner ought not to be followed, for each prisoner should be punished for nothing but the particular crime which he has committed. for this reason the case of each individual should be considered by itself. i dislike, also, the practice of passing a severe sentence for a trifling offence merely because it has been a common habit in other places or of other persons. for instance i have known five years of penal servitude imposed for stealing from outside a shop on a second conviction, when one month would have been more than enough on a first conviction, and two or three months on a second conviction. for small offences like these the penalty should always be the same in character--i mean not excessive imprisonment, and never penal servitude. as often as a man steals let him be sent to prison, and it may be for each offence the time of imprisonment should be somewhat slightly increased, but not the character of the punishment. years ago, in my session days, i remember a poor and, i am afraid, dishonest client of mine being _transported for life_ (on a second conviction for larceny) for stealing _a donkey_; but i doubt if that could happen nowadays. it seems incredible. nobody who has carefully noted the innumerable phases of crime which our criminal courts have continually to deal with, and the infinite shades of guilt attached to each of those crimes, will fail to come to the conclusion that one might as well attempt to allocate to its fitting place each grain of sand, exposed to the currents of a desert and all other disturbing influences, as endeavour by any scheme or fixed rule to determine what is the fitting sentence to be endured for every crime which a person can be proved, under any circumstances, to have committed. the course i adopted in practice was this. my first care was never to pass any sentence inconsistent with any other sentence passed under similar circumstances for another though similar offence. then i proceeded to fix in my own mind what ought to be the outside sentence that should be awarded for that particular offence had it stood alone; and from that i deducted every circumstance of mitigation, provocation, etc., the balance representing the sentence i finally awarded, confining it purely to the actual guilt of the prisoner. i have noticed that burglaries with violence are rarely committed by one man alone, and that when two or more men are concerned in a murder, one or more of them being afraid that some one, in the hope of saving himself from the treachery of others, is anxious to shift the whole guilt of the robbery, with its accompanying violence, on to the shoulders of his comrades. it is well that this should be so, and that such dangerous criminals should distrust with fear and hatred their equally guilty associates. except for special peremptory reasons, i never passed sentence until i had reconsidered the case and informed my own mind, to the best of my ability, as to what was the true magnitude and character of the offence i was called upon to punish. the effect of such deliberation was that i often mitigated the punishment i had intended to inflict, and when i had proposed my sentence i do not remember ever feeling that i had acted excessively or done injustice. i am now quite certain that no sentence can be properly awarded unless after such consideration. i speak, of course, only of serious crimes. it has more than once happened that even after all the evidence in the case was before the jury, as was supposed, i have discovered that an accused man, in _mitigation of sentence_, has pleaded that which would have been a _perfect defence to the charge made against him_! one of these instances was very remarkable. it happened at some country racecourse. a man was charged with robbing another who was in custody in charge of the police for "welshing." the prisoner had undoubtedly, while the prosecutor, as i will call him, was in custody, and being led along the course, rushed up to him, after jumping the barriers, and put his hand in his coat-pocket, pulling out his pocket-book and other articles. he then made off, but was pursued by the police and arrested. he was indicted for the robbery, and the facts were undisputed. there was no defence set up, and i was about to ask the jury for their opinion on the case, which certainly had a very extraordinary aspect. suddenly the prisoner blurted out, as excusing himself,-- "well, sir, _he asked me to take the things_. i was a stranger to him, and the mob was turning his pockets inside out and ill-treating him for welshing." i immediately asked the prosecutor, "is that true?" and he answered, "yes." the prisoner said, "i only did it to protect his things for him." of course i instantly stopped the case and directed an acquittal. i then gave both parties a little advice. to the prosecutor (the welsher) i said, "don't go welshing any more;" and to the prisoner, "if you ever again see a welsher in distress, don't help him." i should like to say one word more. it should not be supposed that a man, when sentenced, is altogether bad because he uses insulting language to the judge. he may not be utterly bad and past all hope of redemption on that account. the want of even an approach to uniformity in criminal sentences is no doubt a very serious matter, and is due, not to any defect in the criminal law (much as i think that might be improved in many respects), but is owing to the great diversity of opinion, and therefore of action, which not unnaturally exists among criminal judges, from the highest to the humblest, numbering, as they do, at least , personages, including judges of the high courts, commissioners, recorders, police magistrates, and justices of the peace. when one considers the conditions under which the criminal law is administered in england, and remembers that no fixed principles upon which punishments should be awarded have been authoritatively laid down, and that the law has stated only a maximum (but happily at the present time not a minimum), and each judge is left practically at liberty to exercise his own unfettered discretion so long as he confines himself within the limit so prescribed, it is no matter for wonder that so great a diversity of punishment should follow so great a variety of opinion. even in the most accurate and useful books of practice to which all look for guidance and assistance during every stage of the criminal proceedings, down to the conviction of the offender, no serious attempt has been made to deal, even in the most general way, with the mode in which the appropriate sentence should be arrived at. the result of this state of things is extremely unsatisfactory, and the most glaring irregularities, diversity, and variety of sentences are daily brought to our notice, the same offence committed under similar circumstances being visited by one judge with a long term of penal servitude, by another with simple imprisonment, with nothing appreciable to account for the difference. in one or the other of these sentences discretion must have been erroneously exercised. i have seen such diversity even between judges of profound learning in the law who might not unreasonably, _primâ facie_, be pointed to as safe examples to be followed; and so they were, so far as regarded their legal utterances. experience, however, has told us that the profoundest lawyers are not always the best administrators of the criminal law. practically there are now no criminal offences which can be visited with the penalty of death. treason and murder still remain. for the latter offence the judge is _bound to pronounce sentence of death_, which is imperatively fixed and ordained by act of parliament, and any other sentence would be illegal. there are certain principles which i consider ought never to be lost sight of. in the first place, it must be remembered that for mere immorality, not made criminal by the common or statute law of the land, no punishment can be legally inflicted, and, in my opinion, no crime ought to be visited with a heavier punishment merely because it is also against the laws of god. take, for example, the crime of unlawfully knowing a girl under the age of sixteen years, even with consent. assume that with her invitation the man committed himself. go further, and establish the sin of incest. the latter sin ought to be _totally ignored_ in dealing with the _statutory_ offence. i must not, however, be understood as intending my observations to apply to cases where the immorality is in itself an _element_ of the crime. my view is that the rule ought to apply only in cases where the immorality is only a sin against god, and is severable from the _crime_ committed against the laws of the land. the case i have suggested is an illustration of what i mean. secondly, a sentence ought never to be so severe as to create in the mind of reasonable persons, having knowledge of the circumstances, a sympathy with the criminal, for that tends to bring the administration of the law into discredit, and while giving a judge credit for having acted with the strictest sense of justice, it might give rise to a suspicion of his fitness and qualifications for the administration of the criminal law--a state of things which ought to be avoided. the same observations apply, but not with equal force, to sentences which may to reasonable persons acquainted with all the circumstances appear to be ridiculously light, for it is more consistent with our laws to err on the side of mercy than on the side of severity. the object of criminal sentences is to compel the observance by all persons, high and low, rich and poor, of those public rights and privileges, both as regards the persons and property common to all their fellow-subjects, the infringement of which is made criminal. for the infringement of other rights of a private character the law has provided civil remedies with which we are not at this moment concerned. punishments, then, should be administered only as a necessary sequence to the breach of a _criminal_ law, with the object of deterring the offender from repeating his offence. of necessity it operates to some extent as a warning to others; but that is not its primary object, for no punishment ought to exceed in severity that which is due to the particular offence to which it is applied. to add to a sentence for a very venial offence for which a nominal punishment ought to suffice an extra fine or term of imprisonment by way of example or warning to others would be unreasonable and unjust. vengeance, or the infliction of unnecessary pain, especially for the sake of others, should never form part of a criminal sentence. reformation of the criminal by and during his imprisonment should be one chief object of his punishment, but a just sentence for the offence is not to be prolonged either for education or reformation, unless expressly sanctioned by law, as in the case of reformatories. with regard to crimes of violence, it sometimes happens that long periods of restraint and imprisonment are imperative--where, for instance, the criminal is persistent in his threats, or has made it evident by his actions or words that on his liberation from imprisonment for criminal violence he intends to resume his criminal course, and will do so unless restrained. take, for instance, the case of a persistent burglar, the great majority of whose robberies are committed under circumstances calculated to create terror and alarm, and upon whom imprisonment, however long, has no restraining effect after his liberation. take the confirmed highway robber, who to secure his booty does not scruple to use deadly violence upon his victim. it is rare that one short term of imprisonment, or the fear of another, induces him to abandon his criminal course. in such cases it is essential for the protection of the public that he should no longer be at liberty to pursue his dangerous and alarming course of life. for him, therefore, a much longer term of restraint is necessary than in the case of mere pilferers, whose thefts, although causing loss and vexation, are not productive of personal injury. lastly, i am strongly averse from abolishing the sentence of death in cases of deliberate murder. even when the crime is committed under the influence of jealousy, i should take little pains to save the life of one who had cruelly and deliberately murdered another for the gratification of revenge or the purpose of robbery. in the case of poor creatures who make away with their illegitimate offspring in the agony of their trouble and shame, there were, in my experience, almost always to be found very strong reasons for commutation, even to very limited periods of imprisonment. chapter li. cardinal manning--"our chapel." cardinal manning was a real friend to me, and i often spent an hour with him on a sunday morning or afternoon discussing general topics. at my request, when i had no thought of being converted to his church, he marked in a book of prayers which he gave me several of his own selections, which i have carefully preserved; but i can truly say he never uttered one word, or made the least attempt, to proselytize me. he left me to my own free, uncontrolled, and uncontrollable action. my reception into the church of rome was purely of my own free choice and will, and according to the exercise of my own judgment. i thought for myself, and acted for myself, or i should not have acted at all. i have always been, and _am_, satisfied that i was right. as to cardinal manning, his extreme good sense and toleration were my admiration at all times, and i shall venerate his memory as long as i live. his kindness was unbounded. it was after his death, which was a great shock to me, that i was received into the church by the late cardinal vaughan. when the latter was showing lady brampton and myself over that beautiful structure, the new westminster cathedral, i thought i should like to erect a memorial chapel, and made a proposal to that effect. we resolved to dedicate it to st. gregory and st. augustine. it was afterwards called "our chapel." the stonework was accordingly proceeded with, and afterwards the plans for decoration were submitted to the archbishop and myself. for these decorations i subscribed a portion. the rest of the work was our own, and we have the satisfaction of feeling that our chapel is erected to the honour and glory of god. the style of decoration adopted is byzantine. the walls are embellished with many and various beautiful marbles. the eastern side has a representation of pope gregory sending st. augustine with his followers to preach the gospel in england. another scene is st. augustine's reception by king ethelbert and queen bertha in the isle of thanet. the panels of the reredos contain pictures of st. gregory and st. augustine, with their four contemporaries, st. paulinus, st. justus (bishop of rochester), st. laurentius, and st. mellitus (bishop of london). on the north are figures of st. edmund, st. osbald, and the venerable bede; while opposite are st. wilfred, st. cuthbert, and st. benedict. on the west are st. john the baptist and st. augustine, and below these, figures of women pouring water from pitchers, symbolical of the river jordan. under the arch of this side are most artistically designed panels containing the names of the four rivers of paradise. the floor is inlaid, and the windows, which are of opalescent glass, throw over the structure a soft white light, admitting of the perfect harmony of colours which everywhere adorn this very beautiful chapel. * * * * * almost all whose names i have mentioned in these reminiscences are gone. there are many others equally dear about whom i cannot for want of time and space write here; most of them have also passed away. they can no longer sing the old songs, or tell the old tales, but their memory remains, and the pleasant melody of their lives. i enjoy their companionship now in the quietude of my home, and their memory brightens even the sweet twilight of the evening hours. but it all reminds me that the signal has been given to ring the curtain down. i therefore make a last and momentary appearance in the closing drama, only to bid all and every one with whom i have been associated in times past and in times recent, as the curtain falls, an affectionate farewell. appendix. the crown calendar for the lincolnshire lent assizes. _holden at the castle of lincoln on saturday the th of march , before the right honorable sir vicary gibbs and the honorable sir william garrow_. john charles lucas calcraft, esq., sheriff. . william bewley, aged , late of kingston upon hull, pensioner from the th regt. of foot, committed july , , charged on suspicion of having feloniously broken into the dwelling house of james crowder at barton, no person being therein, and stealing bottle green coat, velveteen jacket, waistcoats, &c. guilty--death. . john giddy, aged , late of horncastle, tailor, com. aug. , , charged with stealing a silver watch with a gold seal and key, from the shop of james genistan of horncastle. six months imprisonment. . george kirkhan, aged , } } both late of stickney, . john colston maynard, aged , } laborers, com. aug. , , charged on suspicion of feloniously entering the dwelling house of w'm bell of stickney, between and o'ck in the morning, and stealing one £ note and £ notes. acquitted. . george crow, aged , late of frith ville, com. sept. , , charged on suspicion of having entered the dwelling house of s. holmes of frith ville, about o'ck in the morning, breaking open a desk, and stealing three £ notes, s. d. in silver, and a purse. guilty--death. . thomas young, aged , late of firsby, laborer, com. sept. , , charged with having, about o'ck at night, entered the dwelling house of john ashlin of firsby, with intent to commit a robbery. guilty--death. . robert husker, aged ,} } both late of glamford briggs, . john robinson, aged ,} laborers, com. oct. , , charged with burglariously breaking into the dwelling house of chas. saunby, of south kelsey, and stealing therefrom several goods and chattels. guilty--death. . john marriott, aged , late of osgodby, laborer, com. oct. , , charged with maliciously and feloniously setting fire to an oat stack, the property of thomas marshall of osgodby. guilty--death. . sarah hudson, alias heardson, aged , late of newark, nottinghamshire, com. oct. , , charged on suspicion of feloniously stealing from the cottage of james barrell of aisthorpe, in the day time, no person being therein, silver tea-spoons and a pair of silver sugar tongs. discharged by proclamation. . elizabeth firth, aged , late of burgh cum girsby, spinster, com. nov. , , charged with twice administering a quantity of vitrol or verdigrease powder, or other deadly poison, with intent to murder susanna, the infant daughter of george barnes of burgh cum girsby. no true bill. . john moody, aged , late of stallingborough, laborer, com. dec. , , charged with having committed the odious and detestable crime and felony called sodomy. indicted for misdemeanor. two years imprisonment. . william johnson, aged , late of bardney, laborer, com. dec. , , charged with having burglariously entered the dwelling house of w'm smith, of bardney, and wilfully and malliciously beating and wounding, with intent to murder and rob wm. kirmond, a lodger therein. seven years transportation. . richard randall, aged ,} } both late of lutton, . john tubbs, aged , } laborers, com. dec. , , charged with feloniously assaulting wm. rowbottom of holbeach marsh, between and o'ck in the night, in a field near the king's highway, and stealing from his person promissory £ notes, or shillings in silver, one silver stop and seconds watch, and various other goods and chattels. both guilty--death. . william hayes, aged , late of braceby, weaver, com. jan. , , charged with feloniously stealing a mare, together with a saddle and bridle, the property of ed. briggs of hanby. guilty--death. . thomas evison, aged , } } both late of alnwick, . thomas norris, aged , } laborers, com. jan. , , charged with feloniously setting fire to a thrashing machine and a hovel, containing a quantity of oats in the straw, the property of thos. faulkner, jun. of alnwick, which were all consumed. guilty--death. . william walker, aged , laborer, } } both late of boston, . elizabeth eno, aged , spinster, } com. jan. , , charged with burglariously entering the dwelling house of wm. trentham, and stealing a sum of money in gold and silver, several country bank notes, and a red morocco pocket-book. guilty--death. . william bell, alias john brown, aged , late of alvingham, laborer, com. feb. , , charged with burglariously breaking into the shop of wm. goy of alvingham, and stealing pair of new shoes, half boot, and half boot top. guilty--death. . john hoyes, aged , late of heckington, com. feb. , , charged with feloniously stealing pigs of the value of £ , the property of john fairchild of wellingore. acquitted. . christiana robinson, aged , } } both late of glamford . mary stewart, aged , } briggs, com. march , , charged with breaking into chas. saunby's shop, &c. (same as nos. and ). not prosecuted. prisoners under sentence. george houdlass, convicted at lammas assizes, , of mare stealing.--ordered to be transported for the term of his natural life. (the prince regent, in the name of his majesty, having graciously extended the royal mercy to the said convict, his said sentence is commuted to two years imprisonment, commencing july , .) martin dowdwell, convicted at the lent assizes, , of perjury.--ordered to be impillored once and imprisoned for two years. susanna pepper, convicted at the lammas assizes, , of secreting the birth of her bastard child.--ordered to be imprisoned for one year. william whitehead (the younger); at the summer assizes, , was found by a jury to be of unsound mind.--ordered to be imprisoned until his majesty's pleasure be known. edward croft, convicted at the louth quarter sessions, held jan. , , of a felony.--ordered to be transported for seven years. john caminack, convicted at the spilsby quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. william busbey, convicted at the same sessions of a felony.--ordered to be transported for seven years. william nubert, convicted at the lent assizes, , of burglary.--ordered to be transported for seven years. william patchett, convicted at the same assizes of burglary.--ordered to be transported for seven years. richard clarke, convicted at the summer assizes, , of having forged bank notes in his possession.--ordered to be transported for fourteen years. thomas maddison, convicted at the same assizes of burglary.--ordered to be transported for seven years. james donnington, convicted at the same assizes of stealing a lamb.--ordered to be transported for seven years. samuel brown, convicted at the same assizes of stealing a mare.--ordered to be transported for the term of his natural life. joseph greenfield, convicted at the same assizes of stealing a heifer.--ordered to be transported for fourteen years. william johnson, convicted at the spilsby quarter sessions, july , , of a felony.--ordered to be transported for seven years. william willson, convicted at the kirton quarter sessions, oct. , , of a felony.--ordered to be transported for seven years. henry thorpe, convicted at the bourn quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. george croft, convicted at the boston quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. william betts, alias bungs, convicted at the spalding quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. james tidwell, convicted at the same sessions of a felony.--ordered to be transported for seven years. samuel chapman, convicted at the spilsby quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. david jones, convicted at the kirton quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. in his majesty's gaol in the city of lincoln. . daniel elston, aged , late of waddington, cordwainer, com. sep. , , charged with feloniously stealing from the dwelling house of rd. blackbourn, of waddington, one silver watch, and a pair of new quarter boots.--guilty of stealing only-- years transportation. . william kehos, aged , a private soldier in the th regt. of foot, com. nov. , , charged with feloniously slaughtering and stealing from the close of matthew white of lincoln one wether hog.--guilty--death. printed by drury & sons, lincoln. the end. transcriber's notes: . page scan source: http://www.archive.org/details/chiefjusticenove franiala . the diphthong oe is represented by [oe]. heinemann's international library. editor's note. there is nothing in which the anglo-saxon world differs more from the world of the continent of europe than in its fiction. english readers are accustomed to satisfy their curiosity with english novels, and it is rarely indeed that we turn aside to learn something of the interior life of those other countries the exterior scenery of which is often so familiar to us. we climb the alps, but are content to know nothing of the pastoral romances of switzerland. we steam in and out of the picturesque fjords of norway, but never guess what deep speculation into life and morals is made by the novelists of that sparsely peopled but richly endowed nation. we stroll across the courts of the alhambra, we are listlessly rowed upon venetian canals and lombard lakes, we hasten by night through the roaring factories of belgium; but we never pause to inquire whether there is now flourishing a spanish, an italian, a flemish school of fiction. of russian novels we have lately been taught to become partly aware, but we do not ask ourselves whether poland may not possess a dostoieffsky and portugal a tolstoi. yet, as a matter of fact, there is no european country that has not, within the last half-century, felt the dew of revival on the threshing-floor of its worn-out schools of romance. everywhere there has been shown by young men, endowed with a talent for narrative, a vigorous determination to devote themselves to a vivid and sympathetic interpretation of nature and of man. in almost every language, too, this movement has tended to display itself more and more in the direction of what is reported and less of what is created. fancy has seemed to these young novelists a poorer thing than observation; the world of dreams fainter than the world of men. they have not been occupied mainly with what might be or what should be, but with what is, and, in spite of all their shortcomings, they have combined to produce a series of pictures of existing society in each of their several countries such as cannot fail to form an archive of documents invaluable to futurity. but to us they should be still more valuable. to travel in a foreign country is but to touch its surface. under the guidance of a novelist of genius we penetrate to the secrets of a nation, and talk the very language of its citizens. we may go to normandy summer after summer and know less of the manner of life that proceeds under those gnarled orchards of apple-blossom than we learn from one tale of guy de maupassant's. the present series is intended to be a guide to the inner geography of europe. it presents to our readers a series of spiritual baedekers and murrays. it will endeavour to keep pace with every truly characteristic and vigorous expression of the novelist's art in each of the principal european countries, presenting what is quite new if it is also good, side by side with what is old, if it has not hitherto been presented to our public. that will be selected which gives with most freshness and variety the different aspects of continental feeling, the only limits of selection being that a book shall be, on the one hand, amusing, and, on the other, wholesome. one difficulty which must be frankly faced is that of subject. life is now treated in fiction by every race but our own with singular candour. the novelists of the lutheran north are not more fully emancipated from prejudice in this respect than the novelists of the catholic south. everywhere in europe a novel is looked upon now as an impersonal work, from which the writer, as a mere observer, stands aloof, neither blaming nor applauding. continental fiction has learned to exclude, in the main, from among the subjects of its attention, all but those facts which are of common experience, and thus the novelists have determined to disdain nothing and to repudiate nothing which is common to humanity; much is freely discussed, even in the novels of holland and of denmark, which our race is apt to treat with a much more gingerly discretion. it is not difficult, however, we believe--it is certainly not impossible--to discard all which may justly give offence, and yet to offer to an english public as many of the masterpieces of european fiction as we can ever hope to see included in this library. it will be the endeavour of the editor to search on all hands and in all languages for such books as combine the greatest literary value with the most curious and amusing qualities of manner and matter. edmund gosse. the chief justice the chief justice a novel by emil franzos translated from the german by miles corbet london william heinemann [_all rights reserved_] introduction. the remote austrian province of galicia has, in our generation, produced two of the most original of modern novelists, leopold von sacher-masoch and karl emil franzos. the latter, who is the author of the volume here presented to english readers, was born on the th of october , just over the frontier, in a ranger's house in the midst of one of the vast forests of russian podolia. his father, a polish jew, was the district doctor of the town of czorskow, in galicia, where the boy received his first lessons in literature from his german mother. in franzos was sent, on the death of his father, to the german college at czernowitz; at the age of fourteen, according to the published accounts of his life, he was left entirely to his own resources, and gained a precarious livelihood by teaching. after various attempts at making a path for himself in science and in law, and finding that his being a jew stood in the way of a professional career, he turned, as so many german israelites have done before and since, to journalism, first in vienna, then at pesth, then in vienna again, where he still continues to reside. in franzos published his first book, two volumes entitled _aus halb-asia_ ("from semi-asia"), a series of ethnological studies on the peoples of galicia, bukowina, south russia, and roumania, whom he described as in a twilight of semi-barbaric darkness, not wholly in the sunshine of europe. this was followed in by _vom don zur donau_ ("from the don to the danube"), a similar series of studies in ethnography. meanwhile, in _die juden von barnow_ ("the jews of barnow"), , he had published his first collection of tales drawn from his early experience. he followed it in by _junge liebe_ ("young love"), two short stories, "brown rosa" and "brandenegg's cousins," extremely romantic in character, and written in an elaborate and somewhat extravagant style. these volumes achieved a great and instant success. the succeeding novels of franzos have been numerous, and unequal in value. _moschko von parma_, , was a pathetic study of the vicissitudes of a young jewish soldier in the wars. in the same year franzos published _die hexe_ ("the witch"). the best known of his writings in this country is _ein kampf um's recht_ ("a battle for the right"), , which was published in english, with an introduction by mr. george macdonald, and attracted the favourable, and even enthusiastic, notice of mr. gladstone. _der präsident_, which is here translated, appeared in germany in . edmund gosse. the chief justice. chapter i. in the higher court of bolosch, an important germano-slavonic town of northern austria, there sat as chief justice some thirty years ago, one of the bravest and best of those men on whom true justice might hopefully rely in that sorely tried land. charles victor, baron von sendlingen, as he may be called in this record of his fate, was the last descendant of a very ancient and meritorious race which could trace its origin to a collateral branch of the franconian emperors, and which had once upon a time possessed rich lands and mines on the shores of the wörther see: now indeed by reason of an adverse fate and the love of splendour of some of its scions, there had gradually come to be nothing left of all this save a series of high sounding titles. but the decline of fame and influence had not kept pace with the loss of lands and wealth; the sendlingens had entered the service of the hapsburgs and in the last two hundred years had given the austrian hereditary dominions not only several brave generals, but an almost unbroken line of administrators and guardians of justice. and so, although they were entirely dependent on their slender official salaries, they were reckoned with good reason among the first families of the empire, and a sendlingen might from his cradle count upon the office of chief justice of one of the higher courts. even unkind envy, to say nothing of honest report, was obliged to admit that these hereditary patricians of justice had always shown themselves worthy of their sacred office, and just as they regularly inherited certain physical characteristics--great stature, bright eyes and coal-black curly hair--so also gifted intellects, iron industry and a sense of duty which often enough bordered on self-denial, were always theirs. "the majesty of the law is the most sacred majesty on earth." thus spake the first of this family who had entered the service of the imperial courts of justice, the baron victor amadeus, chief judge of the vienna senate, in answer to an irregular demand of ferdinand the catholic, and his descendants held fast to the maxim in good days and evil, even in those worst days when themis threatened, in this country also, to sink to the level of the venal mistress of princes. the greatest of the hapsburgs, joseph ii., knew how to value this at its right worth, and although he much disliked hereditary offices, he on this account appointed the baron charles victor, in spite of his youth, as his father's successor in one of the most important offices of the state. this was the grandfather of that sendlingen whose story is to be told here, a powerful man of unusual strength of will who had again raised the reputation of the family to a most flourishing condition. but although everything went so well with him, the dearest wish of his heart was not to be realized: he was not to transmit office and reputation to his son. this son, franz victor, our hero's father, had to pass his life wretchedly in an insignificant position, the only one among the sendlingens who went to his grave in mature years, unrenowned and indeed despised. this fate had not overtaken him through lack of ability or industry. he too proved himself a true son of this admirable race; gifted, persevering, thorough, devoted heart and soul to his studies and his official duties. but a youthful escapade had embroiled him in the beginning of his career with father and relations: a girl of the lower orders, the daughter of the concierge at the courts where his father presided, had become dear to him and in a moment of passion he had betrayed her. when the girl could no longer conceal the consequences of her fault, she went and threw herself at the feet of the chief justice imploring him to protect her from her parent's wrath. the old man could hardly contain his agony of indignation, but he summoned his son and having heard from his lips the truth of the accusation, he resolved the matter by saying: "the wedding will take place next sunday. a sendlingen may be thoughtless, he must never be a scoundrel." they were married without show and in complete secresy, and at once started for a little spot in the tyrolean mountains whither baron von sendlingen had caused his son and heir to be transferred. this event made a tremendous sensation. for the first time a sendlingen had married out of his rank, the daughter of a menial too, and constrained to it by his father! people hardly knew how to decide which of the two, father or son, had sinned most against the dignity of the family; similar affairs were usually settled by the nobles of the land in all secresy and without leaving a stain on their genealogical tree. even kaiser franz, although his opinions about morality were so rigid, once signified something of the kind to the honourable old judge, but he received the same answer as was given to his son. the embittered old man was indeed equally steadfast in maintaining a complete severance of the bonds between him and his only son; the letters which every mail from the tyrol brought, were left unopened, and even in his last illness he would not suffer the outcast to be recalled. after the death of the judge, his son came to be completely forgotten: only occasionally his aristocratic relations used to recount with a shrug of the shoulders, that they had again been obliged to return a letter of this insolent fellow to the place where it came from. nevertheless they learnt the contents of these letters from a good-natured old aunt: they told of the death of his first child, then of the birth of a boy whom he had called after his grandfather, and while he obstinately kept silence about the happiness or unhappiness of his marriage, he more and more urgently begged for deliverance from the god-forsaken corner of the globe in which he languished and for promotion to a worthier post. although the only person who read these letters was, with all her pity, unable to help him, he never grew weary of writing. the tone of his letters became year by year more bitter and despairing, and whereas he had at first asked for special favours, he now fiercely demanded the cessation of these hostile intrigues. perhaps the embittered man was unjust to his relations in making this reproach,--they seemed in no way to concern themselves about him whether to his interest or his injury--, but he really was badly treated, and leaving out the influence of his name, he was not even able to obtain what he might have expected according to the regulations of the service. an excellent judge of exemplary industry, he was forced to continue for years in this tyrolean wilderness until at length, one day, he was promoted to a judgeship on the klagenfurth circuit. but he was not long able to enjoy his improved position: bitter repentance and the struggle with wretchedness had prematurely undermined his strength. he died, soon after his wife, and his last concern on earth was an imploring prayer to his relations to adopt his boy. this prayer would perhaps not have been necessary to secure the orphan that sympathy which his much-to-be-pitied father had in vain sought to obtain for himself. charles victor, now fourteen years of age, was carried off in a sort of triumph and brought to vienna: even the emperor gratefully remembered the faithful services which this noble house had for centuries rendered to his throne, and he caused its last surviving male to be educated at his expense in the academy of maria theresa. the beautiful, slender boy won the sympathies of his natural guardians by his mere appearance, the serious expression peculiar to his family and his surprising resemblance to his grandfather; excellent gifts, a quiet, steady love of work and a self-contained, manly sweetness of disposition, made him dear to both his masters and his comrades. he was the best scholar at the academy, and he justified the hopes which he had aroused by the brilliant success of his legal studies. but his eagerness to obtain a knowledge of the world and to see foreign countries was equally great, and the modest fortune left him by his grandfather made the fulfilment of these desires possible. when, being of age, he returned to austria and entered on his legal duties, it needed no particular insight to prophesy a rapid advancement in his career. in fact after a brief term of office as judge-advocate in the eastern provinces, he was transferred to bohemia, and shortly afterwards married a beautiful, proud girl who had been much sought after, a daughter of one of the most important counts of the empire. nobody was surprised that the lucky man had also this good luck, but the marriage remained childless. this only served to unite the stately pair more closely to one another, and this wedded love and the judge's triumphs on the bench and in the world of letters, sufficed to fully occupy his life. his treatises on criminal law were among the best of the kind, and the practical nature of his judgments obtained for him the reputation of one of the most thorough and sagacious judges of austria. and so it was more owing to his services than to the influence attached to the name and associations of this remarkable man, that he succeeded in scaling by leaps and bounds that ladder of advancement on the lowest rung of which, his unfortunate father had remained in life-long torture. as early as in his fortieth year he had obtained the important and honourable position of chief justice of bolosch. the stormy times in which he lived served as a good test of his character and abilities. the fierce flames of had been extinguished and from the ruins rose the exhalation of countless political trials. those were sad days, making the strongest demands on the independence of a judge, and many an honest but weak man became the compliant servant of the authorities. the chief justice von sendlingen, a member of the oldest nobility, bound to the imperial house by ties of personal gratitude, related by marriage to the leaders of the reaction, was nevertheless not one of the weak and cowardly judges; just as in that stormy year he had boldly confessed his loyalty to the emperor, so now he showed that justice was not to be abased to an instrument of political revenge. this boldness was indeed not without danger; his brother-in-law stormed, his wife was in tears; first warnings, then threats, rained in upon him, but he kept his course unmoved, acting as his sense of justice bade him. if those in authority did not actually interfere with him, he owed this entirely to his past services, which had made him almost indispensable. the methods of administering justice were constantly changed, juries were empanelled and then dismissed, the regulations of the courts were repeatedly altered: everywhere there were cases in arrear, and confusion and uncertainty. the bolosch circuit was one of the few exceptions. the chief justice remained unmolested by the ministry, and the citizens honoured him as the embodiment of justice, and lawyers as the ornament of their profession. respected throughout the whole empire, he was in his immediate circle the object of almost idolatrous love. and certainly the personal characteristics of this stately and serious man with his almost youthful beauty, were enough to justify this feeling. he was gentle but determined; dignified but affectionate: faithful in the extreme to duty, and yet no stickler for forms. when his wife died suddenly in , the sympathetic love and veneration of all were manifested in the most touching manner. he felt the loss keenly, but only his best friend, dr. george berger, learnt how deep was the wound. this dr. berger was one of the most respected barristers of the town, and in spite of the difference of their political convictions--berger was a radical--he enjoyed an almost fraternal intimacy with sendlingen. this faithful friend did what he could for the lonely judge; and his best helper in the work of sympathy was his sense of duty which forbade a weak surrender to sorrow. he gradually became quiet and composed again, and some premature grey hairs at the temples alone showed how exceedingly he had suffered. in the midst of the regular work of his profession--it was in may, --he was surprised by a laconic command from the minister of justice ordering him forthwith to surrender the conduct of his court to the judge next him in position, von werner, and to be in vienna within three days. this news caused general amazement; the reactionary party was growing stronger, and it was thought that this sudden call might mean the commencement of an inquiry into the conduct of this true but independent judge. he himself was prepared for the worst, but his friend berger took a more hopeful view; rudeness, he said, had become the fashion again in vienna, and perhaps something good was in store for him. this supposition proved correct; the minister wished the assistance of the learned specialist in drawing up a new statute for the administration of justice. the commission of inquiry, originally called for two months, continued its deliberations till the autumn. it was not till the beginning of november that sendlingen started for home, having received as a mark of the minister's gratitude the nomination as chief justice of the higher court at pfalicz, a post which he was to enter upon in four months. this was a brilliant and unexampled appointment for one of his years, but the thought of leaving the much-loved circle of his labours made him sorrowful. and this feeling was increased when the citizens testified by a public reception at the station, how greatly they were rejoiced at his return. his lonely dwelling too had been decorated by a friendly hand, as also the courts of justice. he found it difficult to announce his departure in answer to the speech of welcome delivered by his deputy. and indeed his announcement was received with exclamations of regret and amazement, and it was only by degrees that his auditors sufficiently recovered themselves to congratulate their beloved chief. only one of them did so with a really happy heart, his deputy, von werner, an old, industrious if not very gifted official, who now likewise saw a certain hope of promotion. with a pleased smile, the little weazened man followed sendlingen into his chambers in order to give him an account of the judicial proceedings of the last six months. herr von werner was a sworn enemy of all oral reports, and had therefore not only prepared two beautifully drawn-up lists of the civil and criminal trials, but had written a memorial which he now read out by way of introduction. sendlingen listened patiently to this lengthy document. but when werner was going to take up the lists with the same intention, the chief justice with a pleasant smile anticipated him. "we will look through them together," he said, and began with the criminal list. it contained the name, age and calling of the accused, the date of their gaol-delivery, their crime, as well as the present position of the trial. "there are more arrears than i expected," he said with some surprise. "but the number of crimes has unfortunately greatly increased," objected herr von werner, zealously. "especially the cases of child-murder." "you are right." sendlingen glanced through the columns specifying the crimes and then remained plunged in deep thought. "the number is nearly double," he resumed. "and it is not only here, but in the whole empire, that this horrible phenomenon is evident! the minister of justice complained of it to me with much concern." "but what else could one expect?" cried old werner. "this accursed revolution has undermined all discipline, morals and religion! and then the leniency with which these inhuman women are treated--why it is years since the death-sentence has been carried out in a case of child-murder." "that will unfortunately soon be changed," answered sendlingen in a troubled tone. "the minister of justice thinks as you do, and would like an immediate example to be made. it is unfortunate, i repeat, and not only because, from principle, i am an opponent of the theory of deterring by fear. of all social evils this can least of all be cured by the hangman. and if it is so rank nowadays, i do not think the reason is to be found where you and his excellency seek it, but in the sudden impoverishment, the uncertainty of circumstances and the brutality which, everywhere and always, follow upon a great war. the true physicians are the political economist, the priest and the schoolmaster!... or have you ever perhaps known of a case among educated people?" "oh certainly!" answered herr von werner importantly. "i have, as it happens, to preside to-morrow,--that is to say unless you will take the case--at the conclusion of a trial against a criminal of that class; at least she must be well-educated as she was governess in the house of a countess. see here--case no. on the list." he pointed with his finger to the place. then a dreadful thing happened. hardly had sendlingen glanced at the name which werner indicated, than he uttered a hollow choking cry, a cry of deadly anguish. his face was livid, his features were distorted by an expression of unutterable terror, his eyes started out of their sockets and stared in a sort of fascination at the list before him. "great heavens!" cried werner, himself much alarmed, as he seized his chief's hand. "what is the matter with you? do you know this girl?" sendlingen made no reply. he closed his eyes, rested both arms on the table and tried to rise. but his limbs refused to support him, and he sank down in his chair like one in a faint. "water! help!" cried werner, making for the bell. a movement of sendlingen's stopped him. "it is nothing," he gasped with white lips and parched throat. "an attack of my heart disease. it has lately--become--much worse." "oh!" cried werner with genuine sympathy. "i never even suspected this before. everybody thought you were in the best of health. what do the doctors say?" again there was no answer. breathing with difficulty, livid, his head sunk on his breast, his eyes closed, sendlingen lay back in his chair. and when he raised his eyelids werner met such a hopeless, despairing look, that the old gentleman involuntarily started back. "may i," he began timidly, "call a doctor----" "no!" sendlingen's refusal was almost angry. again he attempted to rise and this time he succeeded. "thank you," he said feebly. "i must have frightened you. i am better now and shall soon be quite well." "but you are going home?" "why should i? i will rest in this comfortable chair for half an hour and then, my dear colleague, i shall be quite at your service again." the old gentleman departed but not without hesitation: even he was really attached to sendlingen. the other officials also received the news of this attack with genuine regret, especially as werner several times repeated in his important manner: "any external cause is quite out of the question, gentlemen, quite out of the question. we were just quietly talking about judicial matters. ah, heart disease is treacherous, gentlemen, very treacherous." hardly had the door closed, when sendlingen sank down in his chair, drew the lists towards him and again stared at that particular spot with a look on his face as if his sentence of death was written there. the entry read thus: "victorine lippert. born th january at radautz in the bukowina. governess. child-murder. transferred here from the district court at gölotz on the th june . confessed. trial to be concluded th november ." the column headed "sentence" was still empty. "death!" he muttered. "death!" he repeated, loud and shrill, and a shudder ran through his every fibre. he sank back and hid his face which had suddenly become wasted. "o my god!" he groaned. "i dare not let her die--her blood would cry out against me, against me only." and he drew the paper towards him again and stared at the entry, piteously and beseechingly, as though he expected a miracle from heaven, as though the letters must change beneath the intensity of his gaze. the mid-day bells of the neighbouring cathedral aroused him from his gloomy brooding. he rose, smoothed his disarranged hair, forced on his accustomed look of quiet, and betook himself to werner's room. "you see," he said. "i have kept my word and am all right again. are there any pressing matters to be rid of?" "only one," answered werner. "the committee of discipline has waited your return, as it did not wish to decide an important case without you." "good, summon the committee for five o'clock today." he now went the round of the other offices, answered the anxious inquiries with the assurance that he was quite well again, and then went down a long corridor to his own quarters which were in another wing of the large building. his step was still elastic, his face pale but almost cheerful. not until he had given his servant orders to admit nobody, not even his friend berger, and until he had bolted his study-door, did he sink down and then give himself up, without restraint, to the fury of a wild, despairing agony. chapter ii. for an hour or more the unhappy man lay groaning, and writhing like a worm under the intensity of his wretchedness. then he rose and with unsteady gait went to his secretaire, and began to rummage in the secret drawers of the old-fashioned piece of furniture. "i no longer remember where it is," he muttered to himself. "it is long since i thought of the old story--but god has not forgotten it." at length he discovered what he was looking for: a small packet of letters grown yellow with time. as he unloosed the string which tied them, a small watercolour portrait in a narrow silver frame fell out: it depicted the gentle, sweet features of a young, fair, grey-eyed girl. his eyes grew moist as he looked at it, and bitter tears suddenly coursed down his cheeks. he then unfolded the papers and began to read: they were long letters, except the last but one which filled no more than two small sheets. this he read with the greatest attention of all, read and re-read it with ever-increasing emotion. "and i could resist such words!" he murmured. "oh wretched man that i am." then he opened the last of the letters. "you evidently did not yourself expect that i would take your gift," he read out in an undertone. and then: "i do not curse you; on the contrary, i ardently hope that you may at least not have given me up in vain." he folded the letters and tied them up. then he undid them again and buried himself once more in their melancholy contents. a knock at the door interrupted him: his housekeeper announced that dinner was ready. this housekeeper was an honest, elderly spinster, fräulein brigitta, whom he usually treated with the greatest consideration. to-day he only answered her with a curt, impatient, "presently!" and he vouchsafed no lengthier reply to her question how he was. but then he remembered some one else. "i must not fall ill," he said. "i must keep up my strength. i shall need it all!" and after he had locked up the letters, he went to the dining-room. he forced himself to take two or three spoonfuls of soup, and hastily emptied a glass of old rhine-wine. his man-servant, franz, likewise a faithful old soul, replenished it, but hesitatingly and with averted countenance. "where is fräulein brigitta?" asked sendlingen. "crying!" growled the old man. "hasn't got used to the new state of things! nor have i! nice conduct, my lord! we arrive in the morning ill, we say nothing to an old and faithful servant, we go straight into the courts. there we fall down several times; we send for no doctor, but writhe alone in pain like a wounded stag." the faithful old fellow's eyes were wet. "i am quite well again, franz," said sendlingen re-assuringly. "we were groaning!" said the old man in a tone of the bitterest reproach. "and since when have we declined to admit herr berger?" "has he been here?" "yes, on most important business, and would not believe that we ourselves had ordered him to be turned away.... and now we are eating nothing," he continued vehemently, as sendlingen pushed his plate from him and rose. "my lord, what does this mean! we look as if we had seen a ghost!" "no, only an old grumbler!" he intended this for an airy pleasantry but its success was poor. "do not be too angry with me." then he returned to his chambers. "the old fellow is right," he thought. "it was a ghost, a very ancient ghost, and its name is nemesis!" his eyes fell on the large calendar on the door: " th november " he read aloud. "a day like every other--and yet ..." then he passed his hand over his brow as if trying to recall who he was, and rang the bell. "get me," he said to the clerk who entered, "the documents relating to the next three criminal trials." he stepped to the window and awaited the clerk's return with apparent calm. he had not long to wait; the clerk entered and laid two goodly bundles of papers on the table. "i have to inform you, my lord," said the clerk standing at attention (he had been a soldier), "that only the papers relating to the trials of the th and th november are in the court-house. those for tomorrow's trial of victorine lippert for child-murder are still in the hands of counsel for the accused, dr. george berger." sendlingen started. "did the accused choose her counsel?" "no, my lord, she refused any defence because she is, so to speak, a poor despairing creature who would prefer to die. herr von werner therefore, ex-officio, allotted her dr. kraushoffer as counsel, and, when he became ill, dr. berger. dr. kraushoffer was only taken ill the day before yesterday and therefore dr. berger has been allowed to keep the papers till tomorrow morning early. does your lordship desire that i should ask him for them?" "no. that will do." he went back to the niche by the window. "a poor creature who would prefer to die!" he said slowly and gloomily. frightful images thronged into his mind, but the poor worn brain could no longer grasp any clear idea. he began to pace up and down his room rapidly, almost staggering as he went. "night! night!" he groaned: he felt as if he were wandering aimlessly in pitchy darkness, while every pulsation of lost time might involve the sacrifice of a human life. then his face brightened again, it seemed a good omen that berger was defending the girl: he knew his friend to be the most conscientious barrister on the circuit. "and if i were to tell him fully what she is to me--" but he left the sentence unfinished and shook his head. "i could not get the words out," he murmured looking round quite scared, "not even to him!" "and why should i?" he then thought. "berger will in any case, from his own love of justice, do all that is in his power." but what result was to be expected? the old judges, unaccustomed to speeches, regarded the concluding proceedings rather as a formality, and decided on their verdict from the documents, whatever counsel might say. it depended entirely on their opinion and what werner thought of the crime he had explained a few hours ago! and even if before that he had been of another opinion, now that he knew the opinion of the minister of justice.... "fool that i am," said sendlingen between his teeth, "it was i who told him!" again he looked half-maddened by his anguish and wandered about the room wringing his hands. suddenly he stopped. his face grew more livid, his brows contracted in a dark frown, his lips were tightly pressed together. a new idea had apparently occurred to him, a dark uncanny inspiration, against which he was struggling but which returned again and again, and took possession of him. "that would be salvation," he muttered. "if to-morrow's sentence is only for a short term of imprisonment, the higher court would never increase it to a sentence of death!" he paced slowly to the window, his head bowed as if the weight of that thought lay upon his neck like a material burden, and stared out into the street. the early shades of the autumn evening were falling; on the other side of a window in a building opposite, a young woman entered with a lamp for her husband. she placed it on his work-table, and lightly touched his hair with her lips. sendlingen saw it plainly, he could distinguish every piece of furniture in the room and also the features of the couple, and as he knew them, he involuntarily whispered their names. but his brain unceasingly continued to spin that dark web, and at times his thoughts escaped him in a low whisper. "what is there to prevent me? nobody knows my relationship to her and she herself has no suspicion. i am entitled to it, and it would arouse no suspicion. certainly it would be difficult, it would be a horrible time, but how much depends on me!" "wretch!" he suddenly cried, in a hard, hoarse voice. "the world does not know your relationship, but you know it! what you intend is a crime, it is against justice and law!" "oh my god!" he groaned: "help me! enlighten my poor brain! would it not be the lesser crime if i were to save her by dishonourable means, than if i were to stand by with folded arms and see her delivered to the hangman! can this be against thy will, thou who art a god of love and mercy? can my honour be more sacred than her life?" he sank back and buried his face in his hands. "but it does not concern my honour alone," he said. "it would be a crime against justice, against the most sacred thing on earth! o my god, have mercy upon me!" while he lay there in the dark irresolute, his body a prey to fever, his soul torn by worse paroxysms, he heard first of all a gentle, then a louder knocking at the door. at length it was opened. "my lord!" said a loud voice: it was herr von werner. "here i am," quickly answered sendlingen rising. "in the dark?" asked old werner with astonishment. "i thought perhaps you had forgotten the appointment--it is five o'clock and the members of the committee of discipline are waiting for us. has your indisposition perhaps returned?" "no! i was merely sitting in deep thought and forgot to light the candles. come, i am quite ready." "will you allow me a question?" asked werner, stepping forward as far as the light which streamed in from the corridor. "in fact it is a request. the clerk told me that you had been asking to see the documents relating to to-morrow's trial. would you perhaps like to preside at it?" sendlingen did not answer at once. "i am not posted up in the matter," he at length said with uncertain voice. "the case is very simple and a glance at the deed of accusation would sufficiently inform you. in fact i took the liberty of asking this question in order to have the documents fetched at once from herr berger. i myself--hm, my daughter, the wife of the finance counsellor, is in fact expecting, as i just learn, tomorrow for the first time--hm,--a happy event. it is natural that i should none the less be at the disposal of the court, but--hm,--trusting to your official goodnature----" sendlingen had supported himself firmly against the back of the chair. his pulses leapt and his voice trembled as he answered: "i will take the case." then both the men started for the court. when they came out into the full light of the corridor, werner looked anxiously at his chief. "but indeed you are still very white!" he cried. "and your face has quite a strange expression. you appear to be seriously unwell, and i have just asked you----" "it is nothing!" interrupted sendlingen impatiently. "whom does our present transaction relate to?" "you will be sorry to hear of it," was the answer, "i know that you too had the best opinion of the young man. it relates to herbich, an assistant at the board of trade office: he has unfortunately been guilty of a gross misuse of his official position." "oh--in what way?" "money matters," answered werner cursorily, and he beckoned to a messenger and sent him to berger's. they then entered the court where the three eldest judges were already waiting for them. the chief justice opened the sitting and called for a report of the case to be read. it was different from what one would have expected from werner's intimation: herbich had not become a criminal through greed of gain. his mother, an old widow, had, on his advice, lent her slender fortune which was to have served as her only daughter's dowry, to a friend of his, a young merchant of excellent reputation. without any one suspecting it, this honourable man had through necessity gradually become bankrupt, and when herbich one morning entered his office at the board of trade, he found the manager of a factory there who, to his alarm, demanded a decree summoning a meeting of his friend's creditors. instead of fulfilling this in accordance with the duties of his office, he hurried to the merchant and induced him by piteous prayers to return the loan on the spot. not till then did he go back to the office and draw up the necessary document. by the inquiries of other creditors whose fractional share had been diminished by this, the matter came to light. herbich was suspended, though left at liberty. there was no permanent loss to the creditors, as the sister had in the meantime returned the whole of the amount to the administrator of the estate. the report recommended that the full severity of the law should take effect, and that the young man should not only be deprived of his position, but should forthwith be handed over to justice. sendlingen had listened to the lengthy report motionless. only once had he risen, to arrange the lampshade so that his face remained in complete shadow. then he asked whether the committee would examine the accused. it was in no way bound to do so, though entitled to, and therefore herbich had been instructed to hold himself in waiting at the court at the hour of the inquiry. the conductor of the inquiry was opposed to any examination. not so baron dernegg, one of the judges, a comfortable looking man with a broad, kindly face. it seemed to him, he explained, that the examination was a necessity, as in this way alone could the motives of the act be brought fully to light. the committee was equally divided on the subject: the casting vote therefore lay with sendlingen. he hesitated a long while, but at length said with a choking voice: "it seems to me, too, that it would be humane and just to hear the unfortunate man." herbich entered. his white, grief-worn face flushed crimson as he saw the judges, and his gait was so unsteady that baron dernegg compassionately motioned him to sit down. the trembling wretch supported himself on the back of a chair as he began laboriously, and almost stutteringly, to reply to the chief justice's question as to what he had to say in his defence. he told of his intimate friendship with the merchant and how it was entirely his own doing that the loan had been made. when he came to speak of his offence his voice failed him until at length he blurted out almost sobbing: "no words can express how i felt then!... my sister had recently been betrothed to an officer. the money was to have served as the guarantee required by the war-office; if it was lost the wedding could not take place and the life's happiness of the poor girl would have been destroyed. i did not think of the criminality of what i was doing. i only followed the voice of my heart which cried out: 'your sister must not be made unhappy through your fault!' my friend's resistance first made me conscious of what i had begun to do! i sought to reassure him and myself by sophisms, pointing out how insignificant the sum was compared with his other debts, and that any other creditor would have taken advantage of making the discovery at the last moment. i seemed to have convinced him, but, as for myself, i went away with the consciousness of being a criminal." he stopped, but as he continued his voice grew stronger and more composed. "a criminal certainly! but my conscience tells me that of two crimes i chose the lesser. but to no purpose: the thing came out; my sister sacrificed her money and her happiness. i look upon my act now as i did then. happy is the man who is spared a conflict between two duties, whose heart is not rent, whose honour destroyed, as mine has been; but if he were visited as i was, he would act as i acted if he were a man at all! and now i await your verdict, for what i have left to say, namely what i once was, you know as well as i do!" a deep silence followed these words. it was for sendlingen to break it either by another question or by dismissing the accused. he, however, was staring silently into space like one lost to his surroundings. at length he murmured: "you may go." the discussion among the judges then began and was hotly carried on, as two opposite views were sharply outlined. baron dernegg and the fourth judge were in favour of simple dismissal without any further punishment, while the promoter, supported by werner, was in favour of his original proposition. the matter had become generally known, he contended, and therefore the dignity of justice demanded a conspicuous satisfaction for the outraged law. the decision again rested with sendlingen, but it seemed difficult for him to pronounce it. "it is desirable, gentlemen," he said, "that your verdict should be unanimous. perhaps you will agree more easily in an informal discussion. i raise the formal sitting for a few minutes." but he himself took no part in their discussion, but stepped to the window. he pressed his burning forehead against the cool glass: his face again wore that expression of torturing uncertainty. but gradually his features grew composed and assumed a look of quiet resolve. when werner approached and informed him that both parties still adhered obstinately to their own opinion, he stepped back to the table and said in a loud, calm voice: "i cast my vote for the opinion of baron dernegg. the dignity of justice does not, in my opinion, require to be vindicated only by excessive severity; dismissal from office and ruin for life are surely sufficient punishment for a fatal _error_." werner in spite of his boundless respect for superiors, could not suppress a movement of surprise. sendlingen noticed it. "an error!" he repeated emphatically. "whoever can put himself in the place of this unfortunate man, whoever can comprehend the struggles of his soul, must see that, according to his own ideas, he had indeed to choose between two crimes. his error was to consider that the lesser crime which in reality was the greater. i have never been a blind partisan of the maxim: 'fiat justitia et pereat mundus,'--but i certainly do consider it a sacred matter that every judge should act according to law and duty, even if he should break his heart in doing so! however, i repeat, it was an error, and therefore it seems to me that the milder of the two opinions enforces sufficient atonement." then he went up to werner. "forgive me," he said, "if i withdraw my promise in regard to tomorrow's trial. i am really not well enough to preside." "oh! please--hm!--well if it must be so." "it must be so," said sendlingen, kindly but resolutely. "good evening, gentlemen." chapter iii. sendlingen went to his own quarters; his old manservant let him in and followed him with anxious looks into his study. "you may go, franz!" he said shortly and sharply. "i am not at home to anybody." "and should dr. berger?" "berger?" he shook his head decidedly. then he seemed to remember some one else. "i will see him," he said, drawing a deep breath. the old man went out hesitatingly: sendlingen was alone. but after a few minutes the voice of his friend was audible in the lobby, and berger entered with a formidable bundle of documents under his arm. "well, how goes it now?" cried the portly man, still standing in the doorway. "better, certainly, as you are going to preside to-morrow. here are the papers." he laid the bundle on the table and grasped sendlingen's outstretched hand. "a mill-stone was rolled from my neck when the messenger came. in the first place, i knew you were better again, and secondly the chief object of my visit at noon to-day was attained without my own intervention." "did you come on that account?" "yes, victor,--and not merely to greet you." the advocate's broad, open face grew very serious. "i wanted to draw your attention to to-morrow's trial, not only from motives of pity for the unfortunate girl, but also in the interests of justice. old werner, who gets more and more impressed with the idea that he is combating the revolution in every case of child-murder, is not the right judge for this girl. 'there are cases,' once wrote an authority on criminal law, 'where a sentence of death accords with the letter of the law, but almost amounts to judicial murder.' i hope you will let this authority weigh with you, though you yourself are he. now then, if werner is put in a position to-morrow to carry out the practice to which he has accustomed himself in the last few weeks, we shall have one of these frightful cases." sendlingen made no reply. his limbs seemed to grow rigid and the beating of his heart threatened to stop. "how--how does the case stand?" he at length blurted out hoarsely and with great effort. "your voice is hoarse," remarked berger innocently. "you must have caught cold on the journey. well, as to the case." he settled himself comfortably in his chair. "it is only one of the usual, sad stories, but it moved me profoundly after i had seen and spoken to the poor wretch. victorine lippert is herself an illegitimate child and has never found out who her father was; even after her mother's death no hint of it was found among her possessions. as she was born in radautz, a small town in the bukowina, and as her mother was governess in the house of a boyar, it is probable that she was seduced by one of these half-savages or perhaps even a victim to violence. i incline to the latter belief, because hermine lippert's subsequent mode of life and touching care for her child, are against the surmise that she was of thoughtless disposition. she settled in a small town in styria and made a scanty living by music lessons. forced by necessity, she hazarded the pious fraud of passing as a widow,--otherwise she and her child must have starved. after eight years a mere chance disclosed the deception and put an end to her life in the town. she was obliged to leave, but obtained a situation as companion to a kind-hearted lady in buda-pesth, and being now no longer able to keep her little daughter with her, she had her brought up at a school in gratz. mother and child saw one another only once a year, but kept up a most affectionate correspondence. victorine was diligent in her studies, grave and accomplished beyond her years, and justified the hope that she would one day earn a livelihood by her abilities. this sad necessity came soon enough. she lost her mother when she was barely fifteen: the hungarian lady paid her school fees for a short time, and then the orphan had to help herself. her excellent testimonials procured her the post of governess in the family of the widowed countess riesner-graskowitz at graskowitz near golotz. she had the charge of two small nieces of the countess and was patient in her duties, in spite of the hardness of a harsh and utterly avaricious woman. in june of last year, her only son, count henry, came home for a lengthy visit." sendlingen sighed deeply and raised his hand. "you divine the rest?" asked berger. "and indeed it is not difficult to do so! the young man had just concluded his initiation into the diplomatic service at our embassy in paris, and was to have gone on to munich in september as attaché. naturally he felt bored in the lonely castle, and just as naturally he sought to banish his boredom by trying to seduce the wondrously beautiful, girlish governess. he heaped upon her letters full of glowing protestations--i mean to read some specimens to-morrow, and amongst them a valid promise of marriage--and the girl of seventeen was easily fooled. she liked the handsome, well-dressed fellow, believed in his love as a divine revelation and trusted in his oaths. you will spare me details, i fancy; this sort of thing has often happened." "often happened!" repeated sendlingen mechanically, passing his hand over his eyes and forehead. "well to be brief! when the noble count henry saw that the girl was going to become a mother before she herself had any suspicion of it, he determined to entirely avoid any unpleasantness with his formidable mother, and had himself sent to st. petersburg. meantime a good-natured servant girl had explained her condition to the poor wretch and had faithfully comforted her in her boundless anguish of mind, and helped her to avoid discovery. her piteous prayers to her lover remained unanswered. at length there came a letter--and this, too, i shall read to-morrow--in which the scoundrel forbade any further molestation and even threatened the law. and now picture the girl's despair when, almost at the same time, the countess discovered her secret,--whether by chance or by a letter of the brave count, is still uncertain. certainly less from moral indignation than from fear of the expense, this noble lady was now guilty of the shocking brutality of having the poor creature driven out into the night by the men-servants of the house! it was a dark, cold, wet night in april: shaken with fever and weary to death, the poor wretch dragged herself towards the nearest village. she did not reach it; halfway, in a wood, some peasants from graskowitz found her the next morning, unconscious. beside her lay her dead, her murdered child." sendlingen groaned and buried his face in his hands. "her fate moves you?" asked berger. "it is certainly piteous enough! the men brought her to the village and informed the police at golotz. the preliminary examination took place the next day. it could only establish that the child had been strangled; it was impossible to take the depositions of the murderess: she was in the wildest delirium, and the prison-doctor expected her to die. but fate," berger rose and his voice trembled--"fate was not so merciful. she recovered, and was sent first to golotz and then brought here. she admitted that in the solitude of that dreadful night, overcome by her pains, forsaken of god and man, she formed the resolve to kill herself and the child--when and how she did the deed she could not say. i am persuaded that this is no lie, and i believe her affirmation that it was only unconsciousness that prevented her suicide. doesn't that appear probable to you too?" sendlingen did not answer. "probable," he at length muttered, "highly probable!" berger nodded. "thus much," he continued, "is recorded in the judicial documents, and as all this is certainly enough to arouse sympathy, i went to see her as soon as the defence was allotted to me. since that i have learnt more. i have learnt that a true and noble nature has been wrecked by the baseness of man. she must have been not only fascinatingly beautiful, but a character of unusual depth and purity. one can still see it, just as fragments of china enable us to guess the former beauty of a work of art. for this vessel is broken in pieces, and her one prayer to me was: not to hinder the sentence of death!... but i cannot grant this prayer," he concluded. "she must not die, were it only for justice's sake! and a load is taken off my heart to think that a human being is to preside at the trial to-morrow, and not a rhetoric machine!" he had spoken with increasing warmth, and with a conviction of spirit which this quiet, and indeed temperate man, seldom evinced. his own emotion prevented him from noticing how peculiar was his friend's demeanour. sendlingen sat there for a while motionless, his face still covered with his hands, and when he at length let them fall, he bowed his head so low that his forehead rested on the edge of the writing-table. in this position he at last blurted forth: "i cannot preside to-morrow." "why not?" asked berger in astonishment. "are you really ill?" and as he gently raised his friend's head and looked into his worn face he cried out anxiously: "why of course--you are in a fever." sendlingen shook his head. "i am quite well, george! but even if it cost me my life, i would not hand over this girl to the tender mercies of others, if only i dared. but i dare not!" "you _dare_ not!" "the law forbids it!" "the law? you are raving!" "no! no!" cried the unhappy man springing up. "i would that i were either mad or dead, but such is not my good fortune! the law forbids it, for a father----" "victor!" "everything tallies, everything! the mother's name--the place--the year of birth--and her name is victorine." "oh my god! she is your----" "my daughter," cried the unfortunate wretch in piercing tones and then quite broke down. berger stood still for an instant as if paralysed by pity and amazement! then he hurried to his friend, raised him and placed him in his arm-chair. "keep calm!" he murmured. "oh! it is frightful!... take courage!... the poor child!" he was himself as if crushed by the weight of this terrible discovery. breathing heavily, sendlingen lay there, his breast heaving convulsively; then he began to sob gently; far more piteously than words or tears, did these despairing, painfully subdued groans betray how exceedingly he suffered. berger stood before him helplessly; he could think of no fitting words of comfort, and he knew that whatever he could say would be said in vain. the door was suddenly opened loudly and noisily; old franz had heard the bitter lamenting and could no longer rest in the lobby. "my lord!" he screamed, darting to the sufferer. "my dear good master." "begone!" sendlingen raised himself hastily. "go, franz--i beg!" he repeated, more gently. but franz did not budge. "we are in pain," he muttered, "and fräulein brigitta may not come in and i am sent away! what else is franz in the world for?" he did not go until berger by entreaties and gentle force pushed him out of the door. sendlingen nodded gratefully to his friend. "sit here," he said, pointing to a chair near his own. "closer still--so! you must know all, if only for her sake! you shall have no shred of doubt as to whom you are defending to-morrow, and perhaps you may discover the expedient for which i have racked my brain in vain. and indeed i desire it on my own account. since the moment i discovered it i feel as if i had lost everything. everything--even myself! you are one of the most upright men i know; you shall judge me, george, and in the same way that you will defend this poor girl, with your noble heart and clear head. perhaps you will decide that some other course is opened to me beside----" he stopped and cast a timid glance at a small neat case that lay on his writing-table. berger knew that it contained a revolver. "victor!" he cried angrily and almost revolted. "oh, if you knew what i suffer! but you are right, it would be contemptible. i dare not think of myself. i dare not slink out of the world. i have a duty to my child. i have neglected it long enough,--i must hold on now and pay my debt. ah! how i felt only this morning, and now everything lies around me shivered to atoms. forgive me, my poor brain can still form no clear thought! but--i will--i must. listen, i will tell you, as if you were the eternal judge himself, how everything came about." chapter iv. after a pause he began: "i must first of all speak of myself and what i was like in those days. you have only known me for ten years: of my parents, of my childhood, you know scarcely anything. mine was a frightful childhood, more full of venom and misery than a man can often have been condemned to endure. my parents' marriage--it was hell upon earth, george! in our profession we get to know many fearful things, but i have hardly since come across anything like it. how they came to be married, you know,--all the world knows. i am convinced that they never loved one another; her beauty pleased his senses, and his condescension may have flattered her. no matter! from the moment that they were indissolubly bound, they hated one another. it is difficult to decide with whom the fault began; perhaps it lay first of all at my father's door. perhaps the common, low-born woman would have been grateful to him for having made her a baroness and raised her to a higher rank in life, if only he had vouchsafed her a little patience and love. but he could not do that, he hated her as the cause of his misfortune, and she repaid him ten-fold in insult and abuse, and in holding him up, humbled enough already, to the derision and gossip of the little town. "betwixt these two people i grew up. i should have soon got to know the terms they were on even if they had striven anxiously to conceal them, but that they did not do. or rather: he attempted to do so, and that was quite sufficient reason for her to drag me designedly into their quarrels, for she knew that this was a weapon wherewith to wound him deeply. and when she saw that he idolized me as any poor wretch does the last hope and joy that fate has left him, she hated me. on that account and on that account alone, she knew that every scolding, every blow, she gave me, cut him to the quick. no wonder that i hated and feared her, as much as i loved and honoured my father. "what he had done i already accurately knew by the time i was a boy of six: he had married out of his rank and a sendlingen might not do that! for doing so his father had disowned him, for doing so he had to go through life in trouble and misery, in a paltry hole and corner where the people mocked at his misfortune. my mother was our curse!--oh, how i hated her for this, how by every fresh ill-usage at her hands, my heart was more and more filled with bitter rancour. "you shudder, george?" he said stopping in his story. "this glimpse into a child's soul makes you tremble? well--it is the truth, and you shall hear everything that happened. "if i did not become wicked, i have to thank my father for it. i was diligent because it gave him pleasure. i was kind and attentive to people because he commanded it. he was often ill; what would have become of me if i had lost him then and grown up under my mother's scourge, i dare not think. i was spared this greatest evil: his protecting hand continued to be stretched out over me, and when we moved to klagenfurth he began to live again. the intercourse with educated people revived him and he was once more full of hope and endeavour. my mother now began to be ill and a few months after our arrival she died. we neither of us rejoiced at her death, but what we felt as we stood by her open coffin was a sort of silent horror. "and now came more happy days, but they did not last long. mental torture had destroyed my father's vitality, and the rough mountain-climate had injured his lungs. the mild air of the plain seemed to restore him for a time, but then the treacherous disease broke out in all its virulence. he did not deceive himself about his condition, but he tried to confirm me in hope and succeeded in doing so. when, after a melancholy winter, in the first days of spring, his cough was easier and his cheeks took colour, i, like a thoughtless boy, shouted for joy,--he however knew that it was the bloom of death. "and he acted accordingly. one may morning--i had just completed my fourteenth year--he came to my bed-side very early and told me to dress myself with all speed. 'we are going for an excursion,' he said. there was a carriage at the door. we drove through the slumbering town and towards the wörther-see. it was a lovely morning, and my father was so affectionate--it seemed to me the happiest hour i had ever had! when we got to maria wörth, the carriage turned off from the lake-side and we proceeded towards the tauer mountains through a rocky valley, until we stopped at the foot of a hill crowned with a ruin. slowly we climbed up the weed-grown path; every step cost the poor invalid effort and pain, but when i tried to dissuade him he only shook his head. 'it must be so!' he said, with a peculiarly earnest look. at length we reached the top. of the old building, little remained standing except the outer walls and an arched gateway. 'look up yonder,' he said, solemnly. 'do you recognize that coat of arms?' it consisted of two swords and a st. andrew's cross with stars in the field." "your arms?" asked berger. sendlingen nodded. "they were the ruins of sendlingen castle, once our chief possession on austrian soil. my father told me this, and began to recount old stories, how our ancestor was a cousin of kaiser conrad and had been a potentate of the empire, holding lands in franconia and suabia, and how his grandson, a friend of one of the hapsburgs, had come to carinthia and there won fresh glory for the old arms. it was a beautiful and affecting moment,--at our feet the wild, lonely landscape, dreamily beautiful in the blue atmosphere of a spring day, no sound around us save the gentle murmur of the wind in the wild elder-trees, and with all this the tones of his earnest, enthusiastic voice. my father had never before spoken as he did then, and while he spoke, there rose before my eyes with palpable clearness the long line of honourable nobles who had all gloriously borne first the sword and then the ermine, and the more familiar their age and their names became, the higher beat my heart, the prouder were my thoughts and every thought was a vow to follow in their footsteps. "my father may have guessed what was passing in my heart, he drew me tenderly to him, and as he told me of his own father, the first judge and nobleman of the land, tears started from his eyes. 'he was the last sendlingen worthy of the name,' he concluded, 'the last!' "'father,' i sobbed, 'whatever i can and may do will be done, but you too will now have a better fate.' "'i!' he broke in, 'i have lived miserably and shall die miserably! but i will not complain of my fate, if it serves as a warning to you. listen to me, victor, my life may be reckoned by weeks, perhaps by days, but if i know my cousins aright, they will not let you stand alone after my death. they will not forget that you are a sendlingen, so long as you don't forget it yourself. and in order that you may continue mindful of it, i have brought you hither before i die! unhappy children mature early; you have been in spite of all my love, a very unhappy child, victor, and you have long since known exactly why my life went to pieces. swear to me to keep this in mind and that you will be strict and honourable in your conduct, as a sendlingen is in duty bound to be.' "'i swear it!' i exclaimed amid my tears. "'one thing more!' he continued, 'i must tell you, although you are still a boy, but i have short time to stay and better now than not at all! it is with regard to women. you will resist my temptations, i am sure. but if you meet a woman who is noble and good but yet not of your own rank, and if your heart is drawn to her, imperiously, irresistibly, so that it seems as if it would burst and break within your breast unless you win her, then fly from her, for no blessing can come of it but only curses for you both. curses and remorse, victor--believe your father who knows the world as it is.... swear to me that you will never marry out of your rank!' "'i swear it!' i repeated. "'well and good,' he said solemnly. 'now i have fulfilled my duty and am ready ... let us go, victor.' "he was going to rise, but he had taxed his wasted lungs beyond their strength: he sank back and a stream of blood gushed from his lips. it was a frightful moment. there i stood, paralysed with fear, helpless, senseless, beside the bleeding man--and when i called for help, there was not a soul to hear me in that deep solitude. i had to look on while the blood gushed forth until my father utterly broke down. i thought he was dead but he had only fainted. a shepherd heard the cry with which i threw myself down beside him, he fetched the driver, they got us into the carriage and then to klagenfurth. two days later my poor father died." he stopped and closed his eyes, then drew a deep breath and continued: "you know what became of me afterwards. my dying father was not deceived in his confidence: the innocent boy, the last of the sendlingens, was suddenly overwhelmed with favours and kindness. it was strange how this affected me, neither moving me, nor exalting, nor humbling me. whatever kindness was done me, i received as my just due; it was not done to me, but to my race in requital for their services, and i had to make a return by showing myself worthy of that race. all my actions were rooted in this pride of family: seldom surely has a descendant of princes been more mightily possessed of it. if i strove with almost superhuman effort to fulfil all the hopes that were set on me at school, if i pitilessly suppressed every evil or low stirring of the heart, i owe it to this pride in my family: the sendlingen had always been strong in knowledge, strict to themselves, just and good to others,--_must_ i not be the same? and if duty at times seemed too hard, my father's bitter fate rose before me like a terrifying spectre, and his white face of suffering was there as a pathetic admonition--both spurring me onward. but the same instinct too preserved me from all exultation now that praise and honour were flowing in upon me; it might be a merit for ordinary men to distinguish themselves, with a sendlingen it was a duty! "and so i continued all those years, first at school, then at the university, moderate, but a good companion, serious but not averse to innocent pleasures. i had a liking for the arts, i was foremost in the ball-room and in the students' réunions,--in one thing only i kept out of the run of pleasure: i had never had a love-affair. my father's warning terrified me, and so did that old saying: 'a sendlingen can never be a scoundrel!' and however much travelling changed my views in the next few years, in this one thing i continued true to myself. certainly this cost me no great struggle. many a girl whom i had met in the society i frequented appeared lovable enough, but i had not fallen in love with any, much less with a girl not of my own rank, of whom i hardly knew even one. "so i passed in this respect as an exemplary young man, too exemplary, some thought, and perhaps not without reason. but whoever had taken me at the time i entered upon my legal career, for an unfeeling calculator with a list of the competitors to be outstripped at all costs, in the place where other people carry a palpitating heart, would have done me a great injustice. i was ambitious, i strove for special promotion, not by shifts and wiles, but by special merit. and as to my heart,--oh! george, how soon i was to know what heart-ache was, and bliss and intoxication, and love and damnation!" he rose, opened his writing-table, and felt for the secret drawer. but he did not open it; he shook his head and withdrew his hand. "it would be of no use," he murmured, and remained for awhile silently brooding. "that was in the beginning of your career?" said berger, to recall him. "yes," he answered. "it was more than twenty years ago, in the winter of . i had just finished my year of probation at lemburg under the eyes of the nearest and most affectionate of my relations, count warnberg, who was second in position among the judges there. he was an uncle, husband of my father's only sister. he had evinced the most cruel hardness to his brother-in-law, to me he became a second father. at his suggestion and in accordance with my own wish, i was promoted to be criminal judge in the district of suczawa. the post was considered one of the worst in the circuit, both my uncle and i thought it the best thing for me, because it was possible here within a very short time, to give conclusive proof of my ability. such opportunities, however, were more abundant than the most zealous could desire: in those days there prevailed in the southern border-lands of the bukowina, such a state of things as now exists only in the balkan provinces or in albania. it was perhaps the most wretched post in the whole empire, and in all other respects exceptionally difficult. the ancient town, once the capital of the moldavian princes, was at that time a mere confusion of crumbling ruins and poverty-stricken mud-cabins crowded with dirty, half-brutalized roumanians, jews and armenians. moreover my only colleague in the place was the civil judge, a ruined man, whom i had never seen sober. my only alternative therefore was either to live like an anchorite, or to go about among the aristocracy of the neighborhood. "when i got to know these noble boyars, the most educated of them ten times more ignorant, the most refined ten times more coarse, the most civilized ten times more unbridled than the most ignorant, the coarsest and the most unbridled squireen of the west, i had no difficulty in choosing: i buried myself in my books and papers. but man is a gregarious animal--and i was so young and spoiled, and so much in need of distraction from the comfortless impressions of the day, that i grew weary after a few weeks and began to accept invitations. the entertainments were always the same: first there was inordinate eating, then inordinate drinking, and then they played hazard till all hours. as i remained sober and never touched a card, i was soon voted a wearisome, insupportable bore. even the ladies were of this opinion, for i neither made pretty speeches, nor would i understand the looks with which they sometimes favoured me. that i none the less received daily invitations was not to be wondered at; a real live baron of the empire was, whatever he might be, a rare ornament for their 'salons,' and to many of these worthy noblemen it seemed desirable in any case to be on a good footing with the criminal judge. "one of them had particular reason for this, alexander von mirescul, a roumanianised greek; his property lay close to the moldavian frontier and passed for the head-quarters of the trade in tobacco smuggling. he was not to be found out, and when i saw him for the first time, i realized that that would be a difficult business; the little man with his yellow, unctuous face seemed as if he consisted not of flesh and bone, but of condensed oil. it was in his voice and manner. he was manifestly much better educated and better mannered than the rest, as he was also much more cunning and contemptible. i did not get rid of this first impression for a long while, but at length he managed to get me into his house; i gradually became more favourable to him as he was, in one respect at least, an agreeable exception; he was a tolerably educated man, his daughters were being brought up by a german governess and he had a library of german books which he really read. i had such a longing for the atmosphere of an educated household that one evening i went to see him. "this evening influenced years of my life, or rather, as i have learnt to-day, my whole life. i am no liar, george, and no fanciful dreamer, it is the literal truth: i loved this girl from the first instant that i beheld her." berger looked up in astonishment. "from the first instant," sendlingen repeated, and he struggled with all speed through his next words. "i entered, mirescul welcomed me: my eye swept over black and grey heads, over well-known, sharp-featured, olive-faces. only one was unknown to me: the face of an exquisitely beautiful girl encircled by heavy, silver-blond, plaited hair. her slender, supple figure was turned away from me, i could only see her profile; it was not quite regular, the forehead was too high, the chin too peculiarly prominent; i saw all that, and yet i seemed as if i had never seen a girl more beautiful and my heart began to beat passionately. i had to tear my looks away, and talk to the lady of the house, but then i stared again, as if possessed, at the beautiful, white unknown who stood shyly in a corner gazing out into the night. 'our governess, fräulein lippert,' said frau von mirescul, quietly smiling as she followed the direction of my looks. "'i know,' i answered nervously, almost impatiently; i had guessed that at once. frau von mirescul looked at me with astonishment, but i had risen and hurried over to the lonely girl: one of the most insolent of the company, the little bald popowicz, had approached her. i was, afraid that he might wound her by some insulting speech. how should this poor, pale, timorous child defend herself alone against such a man? he had leant over her and was whispering something with his insolent smile, but the next instant he started back as if hurled against the wall by an invisible hand, and yet it was only a look of those gentle, veiled, grey eyes, now fixed in such a cold, hard stare that i trembled as they rested on me. but they remained fixed upon me and suddenly became again so pathetically anxious and helpless. "at length i was beside her: i no longer required to defend her from the elderly scamp, he had disappeared. i could only offer her my hand and ask: 'did that brute insult you?' but she took my hand and held it tight as if she must otherwise have fallen, her eyelids closed in an effort to keep back her tears. 'thank you,' she stammered. 'you are a german, are you not baron sendlingen? i guessed as much when you came in! oh if you knew!' "but i do know all, i know what she suffers in this 'salon,' and now we begin to talk of our life among these people and our conversation flows on as if it had been interrupted yesterday. we hardly need words: i understand every sigh that comes from those small lips at other times so tightly closed, she, every glance that i cast upon the assembly. but my glances are only fugitive for i prefer looking straight into that beautiful face so sweetly and gently attractive, although the mouth and chin speak of such firm determination. she often changes colour, but it is more wonderful that i am at times suddenly crippled by the same embarrassment, while at the next moment i feel as if my heart has at length reached home after years and years,--perhaps a life-time's sojourn in a chill strange land. "an hour or more passed thus. we did not notice it; we did not suspect how much our demeanour surprised the others until mirescul approached and asked me to take his wife in to supper. we went in; hermine was not there. 'fräulein hermine usually retires even earlier,' remarked frau von mirescul with the same smile as before. i understood her, and with difficulty suppressed a bitter reply: naturally this girl of inferior rank, whose father had only been a schoolmaster, was unworthy of the society of cattle-merchants, horse-dealers and slave-drivers whose fathers had been ennobled by kaiser franz! "after supper i took my leave. mirescul hoped to see me soon again and i eagerly promised: 'as soon as possible.' and while i drove home through the snow-lit winter's night, i kept repeating these words, for how was i henceforth to live without seeing her?" "after the first evening?" said berger, shaking his head. "that was like a disease!" "it was like a fatality!" cried sendlingen. "and how is it to be explained? i do not know! i wanted at first to show you her likeness, but i have not done so, for however beautiful she may have been, her beauty does not unsolve the riddle. i had met girls equally beautiful, equally full of character before, without taking fire. was it because i met her in surroundings which threw into sharpest relief all that was most charming in her, because i was lonelier than i had ever been before, because i at once knew that she shared my feelings? then besides, i had not as a young fellow lived at high pressure. i had not squandered my heart's power of loving; the later the passion of love entered my life, the stronger, the deeper would be its hold upon me. "reasons like these may perhaps satisfy you; me they do not. he who has himself not experienced a miracle, but learns of it on the report of another, will gladly enough accept a natural explanation; but to him whose senses it has blinded, whose heart it has convulsed, to him it remains a miracle, because it is the only possible conception of the strange, overmastering feelings of such a moment. when i think of those days and how she and i felt--no words can tell, no subtlest speculation explain it. look at it as you may, i will content myself by simply narrating the facts. "and it is a fact that from that evening i was completely metamorphosed. for two days i forced myself to do my regular duties, on the third i went to oronesti, to mirescul's. the fellow was too cunning to betray his astonishment, he brimmed over with pleasure and suggested a drive in sleighs, and as the big sleigh was broken we had to go in couples in small ones, i with hermine. this arrangement was evident enough, but how could i show surprise at what made me so blessed? even hermine was only startled for a moment and then, like me, gave herself up unreservedly to her feelings. "and so it was in all our intercourse in the next two weeks. we talked a great deal and between whiles there were long silences; perhaps these blissful moments of speechlessness were precisely the most beautiful. during those days i scarcely touched her hand: we did not kiss one another, we did not speak of our hearts: the simple consciousness of our love was enough. it was not the presence of others that kept us within these bounds; we were much alone; mirescul took care of that." "and did that never occur to you?" asked berger. "yes, at times, but in a way that may be highly significant of the spell under which my soul and senses laboured at the time. a man in a mesmeric trance distinctly feels the prick of a needle in his arm; he knows that he is being hurt; but he has lost his sense of pain. in some such way i looked upon mirescul's friendliness as an insult and a danger, but my whole being was so filled with fantastic, feverish bliss that no sensation of pain could have penetrated my consciousness." "and did you never think what would come of this?" "no, i could swear to it, never! i speculated as little about my love, as the first man about his life: he was on the earth to breathe and to be happy; of death he knew nothing. and she was just the same; i know it from her letters later, at that time we did not write. and so we lived on, in a dream, in exaltation, without a thought of the morrow." "it must have been a cruel awakening," said berger. "frightful, it was frightful!" he spoke with difficulty, and his looks were veiled. "immediately, in the twinkling of an eye, happiness was succeeded by misery, the most intoxicating happiness by the most lamentable, hideous misery.... one stormy night in march i had had to stay at mirescul's because my horses were taken ill, very likely through the food which mirescul had given them.... i was given a room next to hermine's. "on the next day but one--i was in my office at the time--the customs superintendent of the neighbouring border district entered the room. he was a sturdy, honourable greybeard, who had once been a captain in the army. 'we have caught the rascal at last,' he announced. 'he has suddenly forgotten his usual caution. we took him to-night in the act of unloading bales of tobacco at his warehouses. here he is!' "mirescul entered, ushered in by two of the frontier guards. "'my dear friend!' he cried. 'i have come to complain of an unheard-of act of violence!' "i stared at him, speechless; had he not the right to call me his friend,--how often had i not called him friend in the last few weeks. "'send these men away.' i was dumb. the superintendent looked at me in amazement. i nodded silently, he shrugged his shoulders and left the room with his officials. 'the long and the short of it is,' said mirescul, 'that my arrest was a misunderstanding: the officials can be let off with a caution!' "'the matter must first be inquired into,' i answered at length. "'among friends one's word is enough.' "'duty comes before friendship.' "'then you take a different view of it from what i do,' he answered coming still closer to me. 'it would have been my duty to protect the honour of a respectable girl living in my house as a member of the family. it would now be my duty to drive your mistress in disgrace and dishonour from my doors. i sacrifice this duty to my friendship!' "ah, how the words cut me! i can feel it yet, but i cannot yet describe it. he went, and i was alone with my wild remorse and helpless misery." sendlingen rose and walked up and down excitedly. then he stood still in front of his friend. "that was the heaviest hour of my life, george--excepting the present. a man may perhaps feel as helpless who is suddenly struck blind. the worst torture of all was doubt in my beloved; the hideous suspicion that she might have been a conscious tool in the hands of this villain. and even when i stifled this thought, what abominations there were besides! i should act disgracefully if for her sake i neglected my duty, disgracefully if i heartlessly abandoned her to the vengeance of this man! she had a claim upon me--could i make her my wife? my oath to my dying father bound me, and still more, even though i did not like to admit it, my ambition, my whole existence as it had been until i knew her. my father's fate--my future ruined--may a man fight against himself in this way? still--'a sendlingen can never be a scoundrel'--and how altogether differently this saying affected me compared to my father! he had only an offence to expiate, i had a sacred duty to fulfil: he perhaps had only to reproach himself with thoughtlessness--but i with dishonour. "and did i really love her? it is incomprehensible to me now how i could ever have questioned it, how i could ever have had those hideous doubts: perhaps my nature was unconsciously revenging herself for the strange, overpowering compulsion laid on her in the last few weeks, perhaps since everything, even the ugliest things, had appeared beautiful and harmonious in my dream, perhaps it was natural, now that my heart had been so rudely shaken, that even the most beautiful things should appear ugly. perhaps--for who knows himself and his own heart? "enough! this is how i felt on that day and on the night of that day. oh! how i writhed and suffered! but when at last the faint red light of early morning peeped in at my window, i was resolved. i would do my duty as a judge and a man of honour: i would have mirescul imprisoned, i would make hermine my wife. i no longer had doubts about her or my love, but even if it had not been so, my conscience compelled me to act thus and not otherwise, without regard to the hopes of my life. "i went to my chambers almost before it was day, had the clerk roused from bed and dictated the record of the superintendent's information and a citation to the latter. then i wrote a few lines to hermine, begging her to leave mirescul's house at once and to come to me. 'trust in god and me,' i concluded. this letter i sent with my carriage to oronesti; two hours later i myself intended to set out to the place with gendarmes to search the house and arrest mirescul. but a few minutes after my coachman had left the court, the jewish waiter from the hotel of the little town brought me a letter from my dear one. 'i have been here since midnight and am expecting you.' the lady looked very unwell, added the messenger compassionately, and was no doubt ill. "i hastened to her. when she came towards me in the little room with tottering steps, my heart stood still from pity and fear; shame, remorse and despair--what ravages in her fresh beauty had they not caused in this short space? i opened my arms and with a cry she sank on my breast. 'god is merciful,' she sobbed. 'you do not despise me because i have loved you more than myself: so i will not complain.' "then she told me how mirescul--she had kept her room for the two last days for it seemed to her as if she could never look anyone in the face again--had compelled her to grant him an interview yesterday evening. he requested her to write begging me to take no steps against him, otherwise he would expose and ruin us both. 'oh, how hateful it was!' she cried out, with a shudder. 'it seemed to me as if i should never survive the ignominy of that hour. but i composed myself; whatever was to become of me, you should not break your oath as judge. i told him that i would not write the letter, that i would leave his house at once, and when he showed signs of detaining me by force, i threatened to kill myself that night. then he let me go,--and now do you decide my fate: is it to be life or death!' "'you shall live, my wife,' i swore, 'you shall live for me.' "'i believe you,' said she, 'but it is difficult. oh! can perfect happiness ever come from what has been so hideously disfigured!' "i comforted her as well as i could, for my heart gave utterance to the same piteous question. "then we took counsel about the future; she could not remain in suczawa: we could see what vulgar gossip there would be even without this. so we resolved that she should go to the nearest large town, to czernowitz, and wait there till our speedy marriage. with that we parted: it was to have been a separation for weeks and it proved to be for a lifetime: i never saw the unhappy girl again. "how did it come about that i broke my oath? there is no justification for it, at best but an explanation. i do not want to defend myself before you any more than i have done: i am only confessing to you as i would to a priest if i were a believer in the church. "a stroke of fate struck me in that hour of my growth, i might have overcome it but now came its pricks and stabs. when i left hermine to return to my chambers, i met the customs superintendent. i greeted him. 'have you received my citation?' i asked. he looked at me contemptuously and passed on without answering. 'what does this mean?' cried i angrily, catching hold of his arm. "'it means,' he replied, shaking himself loose, 'that in future i shall only speak to you, even on official matters, when my duty obliges me. that, for a time, is no longer necessary. you released mirescul yesterday, you did not record my depositions. both were contrary to your duty: i have advised my superiors in the matter and await their commands.' "he passed on; i remained rooted to the spot a long while like one struck down; the honourable man was quite right! "but i roused myself; now at least i would neglect my duty no longer. scarcely, however, had i got back to my chambers, when my colleague, the civil-judge entered; he was as usual not quite sober, but it was early in the day and he had sufficient control of his tongue to insult me roundly. 'so you are really going to oronesti,' he began. 'i should advise you not, the man[oe]uvre is too patent. after twenty-four hours nothing will be found, as we set about searching the house just to show our good intentions--eh?' "'i don't require to be taught by you,' i cried flaring up. "'oh, but, perhaps you do, though!' he replied. 'i might for instance teach you something about the danger of little german blondes. but--as you like--i wish you every success!' "smarting under these sensations, i drove to oronesti. mirescul met me in the most brazen-faced way; he protested against such inroads undertaken from motives of personal revenge. and he added this further protest to his formal deposition; he would submit to examination at the hands of any judge but me who had yesterday testified that the accusation was a mistake and promised to punish the customs officials, and to-day suddenly appeared on the scene with gendarmes. between yesterday and to-day nothing had happened except that he had turned my mistress out of his house, and surely this act of domestic propriety could not establish his guilt as a smuggler. you know, george, that i was obliged to take down his protest--but with what sensations! "the search brought to light nothing suspicious; the servants, carters, and peasants whom i examined had all been evidently well-drilled beforehand. i had to have mirescul arrested: were there not the bales of tobacco which the superintendent had seized? not having the ordinary means of transit at night, he had had them temporarily stored in one of the parish buildings at oronesti under the care of two officials. i now had them brought at once to the town. "when i got back to my chambers in the evening and thought over the events of this accursed day, and read over the depositions in which my honour and my bride's honour were dragged in the mire, i had not a single consolation left except perhaps this solitary one, that my neglect would not hinder the course of justice, for the smuggled wares would clearly prove the wretch's guilt. "but even this comfort was to be denied me. the next morning mirescul's solicitor called on me and demanded an immediate examination of the bales: his client, he said, maintained that they did not contain smuggled tobacco from moldavia, but leaf tobacco of the country grown by himself and other planters, and which he was about to prepare for the state factories. the request was quite legitimate; i at once summoned the customs superintendent as being an expert; the old man appeared, gruffly made over the documents to my keeping and accompanied us to the cellars of the court house where the confiscated goods had been stored. when his eye fell on them he started back indignantly, pale with anger: 'scandalous!' he cried, 'unheard of! these bales are much smaller--they have been changed!' "'how is it possible?' "'you know that better than i do,' he answered grimly. "the bales were opened; they really contained tobacco in the leaf. my brain whirled. after i had with difficulty composed myself, i examined the two officials who had watched the goods at oronesti; the exchange could only have been effected there; the men protested their innocence; they had done their duty to the best of their ability; certainly this was the third night which they had kept watch although the superintendent, before hurrying to the town, had promised to release them within a few hours. this too i had to take down; the proof namely that my hesitation in doing my duty had not been without harm. and now my conscience forbade me to arrest mirescul, although by not doing so, i only made my case worse. "so things stood when two days later an official from czernowitz circuit arrived in suczawa to inquire into the case. you know him george; he was a relation of yours, matthias berger, an honest, conscientious man. 'grave accusations have been made against you,' he explained, 'by mirescul's solicitor, by the civil judge and by the customs superintendent, but they contradict each other: i still firmly believe in your innocence: tell me the whole truth.' "but that i could not do: i could not be the means of dragging my bride's name into legal documents, even if i were otherwise to be utterly ruined. so in answer to the questions why i had delayed twenty-four hours, i could only answer that an overwhelming private matter had deprived me of the physical strength to attend to my duties. with regard to hermine, i refused to answer any questions. berger shook his head sadly; he was sorry for me, but he could not help me. he must suspend me from my functions while the inquiry lasted and appoint a substitute from czernowitz: moreover he exacted an oath from me not to leave the place without permission of the court. mirescul was let out on bail. "a fortnight went by. it clings to my memory like an eternity of grief and misery. i have told you what i strove for and hoped for, you will be able to judge how i suffered. four weeks before i was one of the most rising officers of the state: now i was a prisoner on parole, oppressed by the scorn and spite of men, held up to the ignominy of all eyes. i dared hope nothing from my relations, least of all from my uncle, count warnberg: i knew that he would not save me so that i might marry a governess about whom--mirescul and his friends took care of that--there were the ugliest reports in circulation. and you will consider it human, conceivable, that every letter of hermine's was a stab in my heart. "she wrote daily. when she spoke of her feelings during our brief span of joy, it seemed to me as if she depicted my own innermost experiences. this at least gave me the consolation of knowing that i was not tied to an unworthy woman: but the bonds were none the less galling and cut into the heart of my life. only rarely, very gently, and therefore with a twofold pathos, did she complain of her fate; but her grief on my account was wild and passionate; she had heard of my plight but not through me. i sought to comfort her as well as i might; but ah me! there was no word of release or deliverance: how could i have broached it, how have claimed it from her? "one day there came her usual letter; it was written with a visibly trembling hand. my uncle had been to see her; he was hurrying from lemberg in great anxiety to see me, and had stopped at czernowitz to treat with her of the price for which she would release me. in every line there was the deepest pathos; she had shown him the door. "'he will implore you to leave me,' she concluded; 'act as your conscience bids you. and i will tell you something that i refused to tell count warnberg; he asked me whether i had another, a more sacred claim upon you. i don't know, victor, but as i understand our bond in which i live and suffer, that does not affect it; if you will not make me your wife for my own sake, neither could regard for the mother of your child be binding on you!' "two hours after i received this letter, my uncle arrived. i was terrified at the sight of him, his face was so dark, and hard, and strange. my father had once said to me shortly before his death: 'take care never to turn that iron hand against you; it would crush you as it has crushed me.' i had never before understood these words, indeed i had completely forgotten them, but now they came back to me and i understood them before my uncle opened his mouth. "'tell your story,' he began, and his voice sounded to me as if i had never heard it before. 'tell the whole truth. this at least i expect of you. you surely don't wish to sink lower than--than another member of your family. a sendlingen has at all events never lied! now tell your story.' "i obeyed: he was told what you have just been told, though no doubt it sounded different; confused, passionate and scarcely intelligible. but he understood it; he had no single question to ask after i had finished. "'the same story as before,' he said, 'but uglier, much uglier. the father only sullied his coat of arms, the son his judge's honour as well.' "i fired up. i tried to defend myself, he would not allow it. 'tirades serve no good purpose,' he said, coldly. 'you wish to convince me that you were not in criminal collusion with mirescul? i have never thought so. that he is really guilty and can be convicted in spite of your neglect of duty? i have been through the papers and have just cross-examined the customs superintendent. the police are already on the way to re-arrest him; he will be put in prison. but your fault will be none the less in consequence; if there is no lasting stigma on the administration of justice, there is upon your honour. your conduct in this man's house, your hesitation,--it would be bad for you if you had to suffer what you have merited! according to justice and the laws, your fate is sealed; it is only a question whether you will prove yourself worthy of pardon and pity!' "'in anything that you may ask,' i answered, 'except only in one thing: hermine is to be my wife. a sendlingen can never be a scoundrel.' "he drew himself up to his full height and stepped close up to me. 'now listen to me, victor, i will be brief and explicit. whether you stain your honour by marrying this girl, or whether you do so by not marrying her, the all-just god above us knows. we, his creatures, can only judge according to our knowledge and conscience, and in my judgment, the girl is unworthy of you. in this matter there is your conviction against my conviction. but what i do know better than you is, that this marriage would load you with ignominy before the whole world! you will perhaps answer: better the contempt of others than self-contempt, but that is not the question. if you marry this girl, i am as sure as i am of my existence, that you will soon be ashamed of it, not only before others but in your own heart. for pure happiness could not come of such a beginning--it is impossible. the gossip of the world, the ruin of your hopes, would poison your mind and hers,--you would be wretched yourself and make her wretched, and would at length become bad and miserable. the man who forgets his duty to himself and to the world for a matter of weeks and then recovers himself, is worthy of commiseration and help; but he who is guilty of a moral suicide deserves no pity. and therefore listen to me and choose. if you marry this girl your subsequent fate is indifferent to me; you will very likely be stripped of your office; or in the most favourable event, transferred, by way of punishment, to some out of the way place where your father's fate may be repeated in you. if you give her up you may still be saved, for yourself, for our family and for the state: then i will do for you, what my conscience would allow me to do for any subordinate of whose sincere repentance i was convinced, and i will intercede for the emperor's pardon as if you were my own son. to-morrow i return to lemberg, whether alone or with you--you must decide by to-morrow.' he went." sendlingen paused. "how i struggled with myself," he began again, but his voice failed him, until at length he gasped forth with hollow voice and trembling lips: "oh! what a night it was! the next morning i wrote a farewell letter to hermine, and started with count warnberg to lemberg." then there followed a long silence. at length berger asked: "you did not know that she bore your child in her bosom?" "no, i know it to-day for the first time. in that last letter of mine i had offered her a maintenance: she declined it at once. then i left that part of the country. a few months later i inquired after her; i could only learn that she had disappeared without leaving a trace. and then i forgot her, i considered that all was blotted out and washed away like writing from a slate, and rarely, very rarely, in the dusk, or in a sleepless night, did the strange reminiscence recur to me. but fate keeps a good reckoning--o george! i would i were dead!" "no, no!" said berger with gentle reproof. he was deeply moved, his eyes glistened with tears, but he constrained himself to be composed. "thank god, you are alive and willing, and i trust able to pay your debt. how great this debt may be--or how slight--i will not determine. only one thing i do know: you are, in spite of all, worthy of the love and esteem of men, even of the best men, of better men than i am. when i think of it all; your life up to that event and what it has been since, what you have made of your life for yourself and others, then indeed it overcomes me and i feel as if i had never known a fate among the children of men more worthy of the purest pity. this is no mere sad fate, it is a tragic one. against the burden of such a fate, no parade of sophistry, no petty concealments or prevarications will be of avail. you say it is against your feelings to preside at to-morrow's trial?" "yes," replied sendlingen. "it seems to me both cowardly and dishonourable; cowardly, to sacrifice the law instead of myself, dishonourable to break my judge's oath! but i shrink from doing so for another reason; an offence should not be expiated by an injustice; i dread the all-just fates." "i cannot gainsay you," said berger rising. "but in this one thing we are agreed. let us wait for the verdict, and then we will consider what your duty is. it is long past midnight, the trial will begin in seven hours. i will try and get some sleep. i shall need all my strength to-morrow. follow my example, victor, perhaps sleep may be merciful to you." he seized his friend's hands and held them affectionately in his; his feelings again threatened to overcome him and he hastily left the room with a choking farewell on his lips. sendlingen was alone. after brooding awhile, he again went to the secret drawer of his writing-table. at this moment the old servant entered. "we will go to bed now," he said. "we will do it out of pity for ourselves, and fräulein brigitta, and me!" his look and tone were so beseeching that sendlingen could not refuse him. he suffered himself to be undressed, put out the lamp, and closed his eyes. but sleep refused to visit his burning lids. chapter v. when the grey morning appeared, he could no longer endure to lie quietly in his bed while his soul was tormented with unrest, he got up, dressed himself, left his room and went out of doors. it was a damp, cold, horrid autumn morning: the fog clung to the houses and to the uneven pavement of the old town: a heavy, yellow vapor, the smoke of a factory chimney kept sinking down lower and lower. the lonely wanderer met few people, those who recognized him greeted him respectfully, he did not often acknowledge the greeting and when he did, it was unconsciously. most of them looked after him in utter astonishment; what could have brought the chief justice so early out of doors? it seemed at times as if he were looking for something he had lost; he would walk along slowly for a stretch with his looks fixed on the ground, then he would stop and go back the same way. and how broken down, how weary he looked today!--as if he had suddenly become an old man, the people thought. freezing with cold, while his pulses beat at fever-speed, he thus wandered for a long while aimlessly through the desolate streets, first this way, then that, until the morning bells of the cathedral sounded in his ears. he stood still and listened as if he had never heard their mighty sound before; they appeared to vibrate in his heart; his features changed and grew gentler as he listened; a ray of tender longing gleamed in his white face, and, as if drawn by invisible cords, he hurried faster and faster towards the cathedral. but when he stood before its open door and looked into the dark space, lit only by a dim light, the sanctuary lamp before the high-altar, he hesitated; he shook his head and sighed deeply, and his features again resumed their gloomy, painful look. he looked up at the cathedral clock, the hands were pointing to seven. "an hour more," he murmured and went over towards the court-house. it was a huge, straggling, rectangular building, standing on its own ground. in front were the chief justice's residence and the offices; at the back the criminal prison. he turned towards his own quarters. he had just set his foot on the steps, when a new idea seemed to occur to him. he hesitated. "i must," he hissed between his teeth and he clenched his hands till the nails ran painfully into the flesh; "i must, if only for a minute." he stepped back into the street, went around the building and up to the door at the back. it was locked; there was a sentinel in front of it. he rang the bell, a warder opened the door and seeing the chief justice respectfully pulled off his hat. "fetch the governor," muttered sendlingen, so indistinctly that the man hardly understood him. but he hurried away and the governor of the prison appeared. he was visibly much astonished. "does your lordship wish to make an inspection?" he asked. "no, only in one or two particular cases." "which are they, my lord?" but the unhappy man felt that his strength was leaving him. "later on," he muttered, groping for the handle of the door so as to support himself. "another time." the governor hastened towards him. "your lordship is ill again--just as you were yesterday--we are all much concerned! may i accompany you back to your residence? the nearest way is through the prison-yard, if you choose." he opened a door and they stepped out into the prison-yard; it was separated by a wall from the front building; the only means of communication was an unostentatious little door in the bare, high, slippery wall. it seemed to be seldom used; the governor was a long time finding the key on his bunch and when at length it opened, the lock and hinges creaked loudly. "thank you," said sendlingen. "i have never observed this means of communication before." "your predecessor had it made," answered the governor, "so that he might inspect the prison without being announced. the key must be in your possession." "very likely," answered sendlingen, and he went back to his residence. franz placed his breakfast before him. "there'll be a nice ending to this," he growled. "we are dangerously ill and yet we trapse about the streets in all weathers. dr. berger, too, is surprised at our new ways." "has he been here already?" "he was here a few minutes ago, but will be back at eight.... but now we have got to drink our tea." he did not budge till the cup had been emptied. with growing impatience sendlingen looked at the clock. "he can have nothing fresh to say," he thought. "he must guess my intention and want to hinder me. he will not succeed." but he did succeed. as he entered, sendlingen had just taken up his hat and stick. "you are going to the trial?" began his faithful friend almost roughly, "you must not, victor, i implore you. i forbid you. what will the judges think if you are too ill to preside, and yet well enough to be present with no apparent object. but the main thing is not to torment yourself, it is unmanly. do not lessen your strength, you may require it." he wrested his hat from him and forced him into an armchair. "my restlessness will kill me if i stay here," muttered sendlingen. "you would not be better in there, but worse. i shall come back to you at once; i think, i fear, it will not last long. don't buoy yourself up with any hopes, victor. before a jury, i could get her acquitted, with other judges, at a different time, we might have expected a short term of imprisonment ... but now----" "death!" like a shriek the words escaped from his stifled breast. "but she may not, she will not die!" continued berger. "i will set my face against it as long as there is breath in my body, nay, i would have done so even if she had not been your daughter. god bless you, victor." berger gathered up his bundle of papers and proceeded along the corridor and up some stairs, until he found himself outside the court where the trial was to take place. even here a hum of noise reached him, for the court was densely crowded with spectators. as far as he could see by the glimmer of grey morning light that broke its difficult way in by the round windows, it was a well-dressed audience in which ladies preponderated. "naturally," he muttered contemptuously. for a few seconds eye-glasses and opera-glasses were directed upon him, to be then again immediately turned on the accused. but her face could not be seen; she was cowering in a state of collapse on her wooden seat, her forehead resting on the ledge of the dock; her left arm was spread out in front of her, her right hung listlessly by her side. public curiosity had nothing to sate itself on but the shudders that at times convulsed her poor body; one of the long plaits of her coal-black, wavy hair had escaped from beneath the kerchief on her head and hung down low, almost to the ground, touching the muddy boots of the soldier who did duty as sentinel close beside her. berger stepped to his place behind her; she did not notice him until he gently touched her icy cold hand. "be brave, my poor child," he whispered. she started up in terror. "ah!" went from every mouth in court: now at length they could see her face. berger drew himself up to his full height; his eyes blazed with anger as he stepped between her and the crowd. "oh, what crowds of people!" murmured the poor girl. her cheeks and forehead glowed in a fever-heat of shame: but the colour soon went and her grief-worn face was white again; the look of her eyes was weary and faint. "to think that one should have to suffer so much before dying." "you will not die!" he spoke slowly, distinctly, as one speaks to a deaf person. "you will live, and after you have satisfied the justice of men, you will begin life over again. and when you do friendship and love will not be wanting to you." while he was saying this, and at the same time looking her full in the face, her resemblance to his friend almost overpowered him. she was like her father in the colour of her hair and eyes, in her mouth and her forehead. "love and care are waiting for you!" he continued with growing warmth. "this i can swear. do you hear? i swear that it is so! as regards the trial, i can only give you this advice: tell, as you have hitherto done, the whole truth. bear up as well as you can; oppose every lie, every unjust accusation." she had heard him without stirring, without a sign of agreement or dissent. it was doubtful whether she had understood him. but he had not time to repeat his admonition; the crown-advocate and the five judges had entered with werner at their head. if berger had hitherto cherished any hope, it must have vanished now; two of the other judges were among the sternest on the bench; the fourth never listened and then always chimed in with the majority; it was but a slender consolation to berger when he finally saw the wise and humane baron dernegg take his place beside the judges. werner opened the proceedings and the deed of accusation was then read out by the secretary of the court. its compiler--a young, fashionably dressed junior crown-advocate of an old aristocratic family, who had only been in the profession a short time,--listened to the recital of his composition with visible satisfaction. and indeed his representation of the matter was very effective. according to him the countess riesner-graskowitz was one of the noblest women who ever lived, the accused one of the most abandoned. a helpless orphan, called by unexampled generosity to fill a post which neither her years nor abilities had fitted her for, she had requited this kindness by entangling the young count henry in her wiles in order to force him into a marriage. after he had disentangled himself from these unworthy bonds, and after victorine lippert knew her condition, instead of repentantly confiding in her noble protectress, she had exhausted all the arts of crafty dissembling in order not to be found out. and when at length she was, as a most just punishment, suddenly dismissed from the castle, she in cold blood murdered her child so as to be free from the consequences of her fault. in his opinion, the accused's pretended unconsciousness was a manifest fable, and the crime a premeditated one, as her conduct at the castle sufficiently proved. her character was not against the assumption, she was plainly corrupted at an early age, being the daughter of a woman of loose character. "it is a lie! a scandalous lie!" like a cry from the deepest recesses of the heart, these words suddenly vibrated through the court with piercing clearness. it was the accused who had spoken. she had listened to the greatest part of the document without a sound, without the slightest change of countenance, as if she were deaf. only once at the place where it spoke of "manifest fable" she had gently and imperceptibly shaken her head; it was the first intimation berger had that she was listening and understood the accusation. but now, hardly had the libel on her dead mother been read, when she rose to her feet and uttered those words so suddenly that berger was not less motionless and dumfounded than the rest. and then broke forth the hubbub; such an interruption, and in such language, had never before occurred in court. the spectators had risen and were talking excitedly; the crown-advocate stood there helplessly; even herr von werner had to clear his throat repeatedly before he could ejaculate "silence!" but the command was superfluous for hardly had the poor girl uttered the words, when she fell back upon her seat, from thence to the ground, and was now lying in a faint on the boards. she was carried out; it was noticed by many and caused much scandal, that the counsel for the accused lifted the lifeless body and helped carry it, instead of leaving this to the warders. the proceedings had to be interrupted. it was another half hour before the accused appeared in court again, leaning on berger's arm, her features set like those of an animated corpse. there was a satirical murmur in the crowd, and werner, too, reflected whether he should not, there and then, reprove the counsel for unseemly behaviour. and this determined him to be all the severer in the reprimand which he addressed to the accused on account of her unheard of impertinence. she should not escape her just punishment, the nature and extent of which he would determine by the opinion of the prison-doctor. then the reading of the deed of accusation was finished; the examination began. there was a murmur of eager expectation among the spectators; their curiosity was briefly but abundantly satisfied. to the question whether she pleaded guilty, victorine lippert answered quietly but with a steadier voice than one would have supposed her capable of: "yes!... what i know about my deed, i have already told in evidence. i deserve death, i wish to die. it is a matter of indifference to one about to die what men may think of her; god knows the truth. he knows that much, yes most, of what has just been read here, is incorrect. i do not contest it, but one thing i swear in the face of death, and may god have no mercy on me in my last hour if i lie; my mother was noble and good; no mother can ever have been better and no wife more pure. she trusted an unworthy wretch, and he must have been worse than ever any man was, if he could forsake her--but she was good. i implore you, read her testimonials, her letters to me--i beseech you, i conjure you, just a few of these letters.-for myself i have nothing to ask--" her voice broke, her strength again seemed to forsake her and she sank down on her seat. there was a deep silence after she had ended: in her words, in her voice, there must have been something that the hearts of those present could not shut out; even the crown-advocate looked embarrassed. herr von werner alone was so resolutely armed to meet the hydra of the social revolution, which he was bent on combating in this forlorn creature, as to be above all pity. he would certainly have begun a wearisome examination and have spared the poor creature no single detail, but his daughter was expecting a happy event to-day, and baron sendlingen had, notwithstanding, not had sufficient professional consideration to take over the conduct of this trial, and the half hour's faint of the accused had already unduly prolonged the proceedings--so he determined to cut the matter as short as was compatible with his position. the accused had just again unreservedly repeated her confession; further questions, he explained, would be superfluous. the examination of the witnesses could be proceeded with at once. this also was quickly got through. there were the peasants, who had found victorine and her lifeless child on the morrow of the deed, and the prison doctor, none of whom could advance any fresh or material fact. the only witness of importance to the accused was the servant-girl who had helped her in her last few months at the castle. the girl had been shortly after dismissed from the countess' service, and in the preliminary inquiry, she had confirmed all victorine's statements; if she to-day remained firm to her previous declarations, the accusation of premeditated murder would be severely shaken. to berger's alarm she now evasively answered that her memory was weak,--she had in the meantime gone into service at graskowitz again. in spite of this and of the protest of the defence, she was sworn: berger announced his intention of appealing for a nullification of the trial. then the depositions of the countess and her son were read; the court had declined to subp[oe]na them. the countess had not spared time or trouble in depicting the murderess in all her abandonment; but the depositions which count henry had made at his embassy, were brief enough: as far as he recollected he had made the girl no promise of marriage, and indeed there was no reason for doing so. berger demanded, as proof to the contrary, that the letters which had been taken from the accused and put with the other papers, should he read aloud; this the court also declined because they did not affect the question of her guilt. then followed the speeches for and against. the crown-advocate was brief enough: the trial, he contended, had established the correctness of the charge. if ever at all, then in the present case, should the full rigour of the law be enforced. by her protestation that she had received a most careful bringing up from a most excellent mother, she had herself cut from under her feet the only ground for mitigation. all the more energetically and fully did berger plead for the utmost possible leniency; his knowledge of law, his intellect and his oratorical gifts had perhaps never before been so brilliantly displayed. when he had finished, the people in court broke out into tumultuous applause. the judges retired to consider their verdict. they were not long absent; in twenty minutes they again appeared in court. werner pronounced sentence: death by hanging. the qualification of "unanimous" was wanting. baron dernegg had been opposed to it. there was much excitement among the spectators. berger, although not unprepared for the sentence, could with difficulty calm himself sufficiently to announce that every form of appeal would be resorted to. the accused had closed her eyes for a moment and her limbs trembled like aspen-leaves, but she was able to rise by herself to follow the warders. "thank you," she said pressing berger's hands. "but the appeal----" "will be lodged by me," he said hastily interrupting her. "i shall come and see you about it to-day." he hurried away down the stairs. but when he got into the long corridor that led to sendlingen's quarters, he relaxed his pace and at length stood still. "this is a difficult business," he murmured and he stepped to a window, opened it and eagerly drank in the cool autumn air as if to strengthen himself. when a few minutes after he found himself in sendlingen's lobby, he met baron dernegg coming out of his friend's study. "too late!" he thought with alarm. "and he has had to hear it from some one else." the usually comfortable-looking judge was much excited. "you are no doubt coming on the same errand, dr. berger," he began. "i felt myself in duty bound to let the chief justice know about this sentence without delay. the way in which he received it showed me once more what a splendid man he is, the pattern of a judge, the embodiment of justice! i assure you, he almost fainted, this--hm!--questionable sentence affected him like a personal misfortune. please do not excite him any more about it and talk of something else first." "certainly," muttered berger as he walked into the study. sendlingen lay back in his arm-chair, both hands pressed to his face. his friend approached him without a word; it was a long, sad silence. "victor," he said at last, gently touching his shoulder, "we knew it would be so!" sendlingen let his hands fall. "and does that comfort me?" he cried wildly. and then he bowed his head still lower. "tell me all!" he murmured. berger then began to narrate everything. one thing only he omitted: how victorine had spoken of her mother's betrayer. "this very day," he concluded, "i shall lodge a nullity appeal with the supreme court. perhaps it will consider the reasons weighty enough to order a new trial; in any case when it examines the question, it will alter the sentence." "in any case?" cried sendlingen bitterly. "we cannot but expect as much from the sense of justice of our highest judges. perhaps the chief witness's suspicious weakness of memory may prove a lucky thing for us. if she had stuck by her former depositions, or if the court had not put her on her oath, then a simple appeal to the supreme court would alone have been possible. now, the case is more striking and more sensational." "and therefore all the worse!" interrupted sendlingen. "woe to him for whom in these days the voice of the people makes itself heard; to the gentry in vienna it is worse than the voice of the devil. besides, just now, according to the opinion of the minister of justice, the world is to be rid of child-murder by the offices of the hangman! and this is the first case in educated circles, a much talked of case,--what a magnificent opportunity of striking terror!" "you take too black a view of the matter, victor." "perhaps!--and therefore an unjust view! but how can a man in my position be just and reasonable. oh, george, i am so desolate and perplexed! what shall i do; merciful heaven, what shall i do?" "first of all--wait!" answered berger. "the decision of the supreme court will be known in a comparatively short time, at latest in two months!" "wait--only two months!" sendlingen wrung his hands. "though what do i care for myself! but she--two months in the fear of death! to sit thus in a lonely cell without light or air, or consolation,--behind her unutterable misery, before her death----. oh, she must either go mad or die!" "i shall often be with her, and father rohn, too, i hope. and then, too," he added, half-heartedly, "one or other of the ladies of the women's society for befriending female criminals. certainly these comforters are not worth much." "they are worth nothing," cried sendlingen vehemently. "oh, how they will torture the poor girl with their unctuous virtue and self-satisfied piety! i have to tolerate these tormentors, the minister of justice insists on it, but at least they shall not enter this cell, i will not allow it--or at least, only the single one among them who is any good, my old brigitta----" "your housekeeper?" asked berger, in perplexity and consternation. "that must not be! she might guess the truth. the girl!" he hesitated again--"is like you, very like you victor--and anyone who sees you so often and knows you so well as brigitta----" "what does that matter?" sendlingen rose. "she is discreet, and if she were not--what does it matter, i repeat. do you suppose that i never mean to enter that cell?" "you! impossible!" "i shall and i must! i will humour you in everything except in this one thing!" "but under what pretext? have you ever visited and repeatedly visited other condemned criminals?" "what does that matter to me? a father must stand by his child!" "and will you tell other people so?" "not until i am obliged; but then without a moment's hesitation. she, however, must be told at once, in fact this very day." "you must not do that, victor. spare the poor girl this sudden revelation." "then prepare her beforehand! but to-morrow it must be!" berger was helpless; he knew what victorine would say to her father if she suddenly encountered him. "give her a little more time!" he begged, "out of pity for her shattered nerves and agitated mind, which will not bear any immediate shock." this was a request that sendlingen could not refuse. "very well, i will wait," he promised. "but you will not wish to prevent me from seeing her to-morrow. i have in any case to inspect the prison. but i promise you: i will not betray myself and the governor of the jail shall accompany me." chapter vi. weighed down by sorrow, berger proceeded homewards. to the solitary bachelor sendlingen was more than a friend, he was a dearly loved brother. he was struck to the heart, as by a personal affliction, with compassion for this fate, this terrible fate, so suddenly and destructively breaking in upon a beneficent life, like a desolating flood. would this flood ever subside again and the soil bring forth flowers and fruit? the strong man's looks darkened as he thought of the future: worse than the evil itself seemed to him the manner in which it affected his friend. alas! how changed and desolated was this splendid soul, how hopeless and helpless this brave heart! and it was just their last interview, that sudden flight from the most melancholy helplessness to the heights of an almost heroic resolve, that gave berger the greatest uneasiness. "and it will not last!" he reflected with much concern. "most certainly it will not! perhaps even now, five minutes after, he is again lying back in his arm chair, broken down, without another thought, another feeling, save that of his misery! and could anything else be expected? that was not the energetic resolve of a clear, courageous soul, but the diseased, visionary effort of feverishly excited nerves! again he does not know whether he will see her or what he ought to do.... and do i know, would any one know in the presence of such a fate?" had he deserved this fate? "no!" cried berger to himself. "no!" he passionately repeated as he paced up and down his study, trying to frame the wording of the appeal. clumsy and uncouth, blind and cruel, seemed to him the power that had ordered things as they had come about. it seemed no better than some rude elemental force. "he can no more help it," he muttered, "than the fields can help a flood breaking in upon them." but he could not long maintain this view, comforting as it was to him, much as he strove to harbour it. "he has done wrong," he thought, "and retribution is only the severer because delayed." other cases in his experience occurred to him: long concealed wrongs and sins that had afterwards come into the light of day, doubly frightful. "and such offences increase by the interest accruing until they are paid," he was obliged to think. from the moment that he heard his friend's story, all the facts it brought to light seemed to him like the diabolical sport of chance; but now he no longer thought it chance but in everything saw necessity, and he was overcome by the same idea to which he had given voice at the conclusion of his friend's narration, namely that this was no mere sad fate, but a tragic one. it was a singular idea, compounded of fear and reverence. when berger reflected how one act dovetailed into another, how link fitted into link in the chain of cause and effect, how all these people could not have acted otherwise than they were obliged to act, how guilt had of necessity supervened, and now retribution, the strong man shuddered from head to foot: he had to bow his head before that pitiless, all-just power for which he knew no name ... but was it really all-just? if all these people, if sendlingen and victorine had not acted otherwise than their nature and circumstances commanded, why had they to suffer for it so frightfully? and why was there no end to this suffering, a great, a liberating, a redeeming end? "no!" cried an inward voice of his deeply agitated soul, "there must be such a glorious solution. it cannot be our destiny to be dragged into sin by blind powers which we cannot in any way control, like puppets by the cords in a showman's hands, and then again, when it pleases those powers, into still greater sins, or into an atonement a thousand times greater than the sin itself, and so, on and on, until death snaps the cords. no! that cannot be our destiny, and if it were, then we should be greater than this fate, greater, juster, more reasonable! there must be in sendlingen's case also, a solution bringing freedom, there _must_--and in his case precisely most of all! it would have been an extraordinary fate, no matter whom it had overtaken, but had it befallen a commonplace man, it would never have grown to such a crushing tragedy. a scoundrel would have lied to himself: 'she is not my daughter, her mother was a woman of loose character,' and he would have repeated this so often that he would have come to believe it. and if remorse had eventually supervened, he would have buried it in the confessional or in the bottle. "another man, no scoundrel,--on the contrary! a man of honour of the sort whose name is legion,--would not have hesitated for a moment to preside in court in order to obtain by his authority as chief justice, the mildest possible sentence. then he would have been assiduous in ameliorating the lot of the prisoner by special privileges, and after she had been set at liberty, he would have bought her, somewhere at a distance, a little millinery business or a husband, and every time he thought of the matter, he would have said with emotion: 'what a good fellow you are!' this has only become a tragic fate because it has struck one of the most upright, most sensitive and noble of men, and because this is so, there must come from that most noble and upright heart a solution, an act of liberation bursting these iron bonds! there must be a means of escape by which he and his poor child and justice herself will have their due! there _must_ be--simply because he is what he is!" there was a gleam of light in berger's usually placid, contented face, the reflection of the thought that filled his soul and raised him above the misery of the moment. notwithstanding, his looks became serious and gloomy again. "but what is this solution?" he asked, continuing his over-wrought reflections. "and how shall this broken-down, sick man, weary with his tortures, find it? and i--i know of none, perhaps no one save himself can find it. 'against the burden of such a fate, no parade of sophistry will be of any avail,' i said to him yesterday. but can small expedients be of any use? will it be a solution if i succeed with my appeal, if the sentence of death is commuted to penal servitude for life or for twenty years? can this lessen the burden of the fate?--for her, for him?" "what to do?" he suddenly exclaimed aloud. he wrung his hands and stared before him. suddenly there was a curious twitching about his mouth, and his eyes gleamed with an almost weird light. "no, no!" he muttered vehemently, "how can such a thought even occur to me. i feel it, i am myself becoming ill and unstrung!" he bounded up with a heavy stamp and hastily passed his hand over his forehead, as though the thought which had just passed through his brain stood written there and must be swiftly wiped away. but that thought returned again and again and would not be scared away, that enticing but fearful thought; how she might be forcibly liberated from prison and carried off to new life and happiness in a distant country? "madness!" he muttered and added in thought: "he would rather die and let her die, than give his consent to this or set his hand to such a deed! he whose conscience would not allow him to preside at the trial! and if in his perplexity and despair he were to go so far, i should have to bar the way and stop him even if it cost me my life.... what was it he said yesterday: 'an offence should not be expiated by an injustice!' and will he attempt it by another offence. 'cowardly and dishonourable!' yes, that it would be, and not that great deed of which i dream; greater and more just than fate itself." he seized the notes which he had made from the papers connected with the trial, and forced himself to read them through deliberately, to weigh them again point by point. this expedient helped him: that horrible thought did not return, but a new thought rose, bringing comfort in its train and took shape: "when a great act cannot be achieved, we should not on that account omit even the smallest thing that can possibly be done. i will set my energies against the sentence of death, because it is the most frightful thing that could happen!" and now he recovered courage and eagerness for work. he sat at his writing table hour after hour, marshalling his reasons and objections into a solid phalanx which in the fervour of the moment seemed to him as if they must sweep away every obstacle, even prejudice, even ill-will. he had bolted himself in, nobody was to disturb him, he only interrupted himself for a few minutes to snatch a hasty meal. then he worked away until the last sentence stood on the paper. for the first time he now looked at the clock; it was pointing to ten. it was too late to visit the poor prisoner, and he was grieved that he had not kept his promise. if she was perhaps secretly nourishing the hope of being saved, she would now be doubly despairing. but it could not now be helped and he resolved to make good his remissness early the next morning. sendlingen, however, he would go and see. "perhaps he is in want of me," he thought. "i should be much surprised if he were not now more helpless than ever." he made his way through the wet, cold, foggy autumn night; things he had never dreamt of were in store for him. when he pulled the bell, the door was at once opened: fräulein brigitta stood before him. the candlestick in her hand trembled: the plump, well-nourished face of the worthy lady was so full of anguish that berger started. "what has happened?" he cried. "nothing!" she answered. "nothing at all! it is only that i am so silly." but her hand was trembling so much that she had to put down her candle and the tears streamed down her cheeks as she continued with an effort: "he went out--and has not come back--and so i thought--but i am so silly." "so it seems," berger roughly exclaimed, trying to encourage both her and himself, but a sudden anguish so choked his utterance that what he next said sounded almost unintelligible. "may he not pay a visit to a friend and stay to supper there? is he so much under your thumb that he must give you previous notice of his intention? he is at baron dernegg's i suppose." "no," she sobbed. "he is not there, and franz has already looked for him in vain in all the places where he might be. he was twice at your house, but your servant would not admit him. and now the old man is scouring the streets. he will not find him!" she suddenly screamed, burying her face in her hands. "nonsense!" cried berger almost angrily. he forced the trembling woman into a chair, sat down beside her and took her hand. "let us talk like reasonable beings," he said, "like men, fräulein brigitta. when did he go out?" "seven hours ago, just after his dinner, which he hardly touched; it must have been about four o'clock. and how he has been behaving ... and especially since mid-day yesterday.... dr. berger," she cried imploringly, clasping her hands, "what happened yesterday in chambers? when he came back from vienna he was still calm and cheerful. it must be here and yesterday that some misfortune struck him. i thought at first that it was illness, but i know better now: it is a misfortune, a great misfortune! dr. berger, for christ's sake, tell me what it is!" she would have sunk down at his feet, if he had not hastily prevented her. "be reasonable!" he urged, "it is an illness, fräulein brigitta,--the heart, the nerves." she shook her head vigorously. "i guess what it is." she pointed in the direction of the jail. "something has happened in the prison over there that is a matter of life and death to him." he started. "why do you suppose that?" "because he behaved so strangely--just listen to this." but she had first the difficult task of calming herself before she could proceed. "well, when i went into his room to-day to tell him dinner was ready, he was standing in front of his writing-table rummaging in all the drawers. 'what are you looking for, my lord?' i asked. 'nothing,' he muttered and he sent me away, saying he was just coming. twenty minutes later i ventured to go back again; he was still searching. 'have you ever,' he now himself asked, 'heard of any keys that my predecessor is said to have handed over?' 'yes,' i replied, 'the keys of the residence.' 'no, others, and among them the key of the door which----' he checked himself suddenly and turned away as though he had already said too much. 'what door?' i asked in utter astonishment. he muttered something unintelligible and then roughly told me the soup could wait. it cuts me to the heart. dear heaven, how wretched he looks, and i am not accustomed to be spoken to by him in that way; but what does that matter? i went and spoke to franz. 'perhaps,' he said, 'he means the keys that are in the top drawer of his business table.' so we went and looked and there, sure enough, was a bunch of keys--quite rusty, dr. berger." "go on, to the point," said berger impatiently. "well, i took them to him; as i said, a whole bunch with a written label on each. he looked through them with trembling hands. dr. berger, and at last his face lit up. 'that's the one!' he muttered and took the key off the bunch and put it in his breast pocket. then he turned round and when he saw me--great heaven! what eyes he had--wicked, frightened eyes. 'are you still here?' he said flaring up into a rage. 'what do you want playing the spy here?' yes, dr. berger, he said 'playing the spy'--and he has known me for fifteen years." "he is ill you see!" said berger soothingly. "but go on!" "then he sat down to dinner and there he behaved very strangely. god forgive me ... usually he only drinks one glass of rhine-wine--you know the sort--to-day he gulped down three glasses one after another, took a few spoonfuls of soup and then went back to his room. and then i said: franz, i said--but you won't want to hear that. dr. berger. but what follows you must hear; it's very strange--god help us! only too strange." "well?" "after about ten minutes or so, i heard his step in the lobby; the door slammed; well, he had gone out. 'by all that's sacred!' thinks i in great trouble of mind. then franz came in quite upset. 'fräulein!' he whispered, 'he's going up and down in the court outside!' 'impossible!' said i, 'what does he want there?' we went to the bedroom window that looks down into the court and there, sure enough, is his lordship! he was going--or rather he was creeping along by the wall that separates our court from the prison yard. it was drizzling at the time and it was no longer quite light, but i could see his face plainly: it was the face of a man who doesn't know what to do--ah me! worse still--the face of a man who doesn't know what he's doing. and he behaved like it, dr. berger! he stopped in front of the little door in the wall, looked anxiously up at the windows to see if anyone was watching him--but the clerks and officials had all gone, we were the only people who saw him--he pulled out that key from his breast pocket and tried to unlock the door. for a long time he couldn't succeed, but at last the door opened. however, he only shut it again quickly and locked it. then he began anxiously to pace up and down again. it was just as if he had only wanted to try whether the key would open the door. what do you think of that?" "the door through which one can get from here into the prison?" berger spoke slowly, in a muffled tone, as if he were speaking to himself. then he continued in the same tone: "oh, how frightful that would be! this soul in the mire, this splendid soul!--go on!" he then muttered as he saw that the housekeeper was looking at him in amazement. "well, then he went quickly back through the hall into the street and on towards the square. franz crept after him at a distance. he seemed at first as if he wanted to go to your house, then he came back here, but to the other door, on the prison side. there he stood, close up to it, for a long time, a quarter of an hour franz says, and then went to the left down cross street and then--what do you think, dr. berger?" "back the same way," said berger slowly, "and again stood for a long time in front of the prison." "how can you know that?" asked the old lady in astonishment. berger's answer was a strange one. "i can see it!" he said. and indeed, with the eyes of his soul, berger could see his unhappy friend wandering about in the misty darkness, dragged hither and thither, by whirling, conflicting thoughts. "perhaps he is at this moment standing there again!" he had not meant to say this, but the thought had involuntarily given itself voice. "what now!" fräulein brigitta crossed herself. "we will go and see at once! come! oh, that would be a good thing! i will just go and fetch my shawl. but you see i was right. this trouble is connected with the prison; some injustice has been done, and he feels it nearly because he is such a just judge." "because he is such a just judge," repeated berger, mechanically, without thinking of what he was saying, for while he spoke those words he was saying to himself: "he has gone mad!" then, however, he shook off the spell of this horror that threatened to cripple both soul and body. "you stay at home," he said in a tone of command. "i will find him and bring him back, you may rely upon that. one thing more, where did franz leave him?" "ah, he was too simple! when his lordship came into the square for the third time, franz went up to him and begged him to come home. upon that he became very angry and sent franz off with the strongest language. but he called after him that he was going to baron dernegg's, only as i said, he has not been there, and----" "keep up your spirits, fräulein brigitta! i shall be back soon." he went down the steps, "keep up your spirits!" he called back to her once more; she was standing at the top of the steps holding the candle at arm's length before her. berger stepped into the street and walked swiftly round the building to the prison door. he himself was in need of the exhortation he had given: he felt as if in the next moment he might see something frightful. but there was nothing to be seen when he at length reached the place and approached the door, nothing save the muddy slippery ground, the trickling, mouldy walls, the iron-work of the door shining in the wet--nothing else, so far as the red, smoky light of the two lanterns above the door could show through the fog and rain. and there was nothing to be heard save the low pattering of the rain-drops on the soft earth or, when a sudden gust of the east-wind blew, the creaking of some loosened rafter and a whirring, long-drawn, complaining sound that came from the bare trees on the ramparts when they writhed and bent beneath its icy breath. "victor!" there was a movement in the sentry box by the door; the poor, frozen venetian soldier of the dom miguel regiment who had sheltered himself inside as well as he could from the rain and cold, poked out his heavy sleepy head so that the shine of his wet leather shako was visible for an instant. he muttered an oath and wrapped himself the closer in his damp overcoat. berger sighed deeply. a minute before he was sure he had seen the poor madman standing motionless in the desolate night, his eyes rigidly fixed upon the door that separated him from his daughter, and now that he was spared the sight, he could take no comfort, for a far worse foreboding convulsed his brain. hesitatingly he returned to the front part of the building and, increasing his pace, he went down the street towards the market-place, aimlessly, but always swifter, as if he had to go where chance led him, so as to arrive in time to stop some frightful deed. the streets were deserted, nothing but the wind roamed through the drenching solitude, nothing but the voices of the night greeted his ear; that ceaseless murmur and rustle and stir, which, drowned by the noise of the day, moves in the dark stillness, as though dead and dumb things had now first found a voice to reach the sense of men. he often had to stop; it seemed to him as if he heard the piteous groaning of a sick man, or the half stifled cry for help of one wounded. but it was nothing; the wind had shaken some rotting roof, or somewhere in the far distance a watch-dog had given a short, sharp bark. the lonely wanderer held his breath in order to hear better, looked also perhaps into some dark corner and then hurried on. he reached the market place. here he came upon human beings again, the sentries before the principal guard-house, and as he passed the column commemorative of the cholera in the middle of the square, there was the night-watchman who had pitched upon a dry sleeping place in one of the niches of the irregular monument. berger stopped irresolutely; should he wake him up and question him? another form at this moment emerged from a neighbouring street; a man who with bowed head and halting pace glided along by the houses: was this not franz? berger could not yet, by the light of the meagre lamps, accurately distinguish him in the all-pervading fog. but the man came nearer and nearer; he was behaving peculiarly; he was looking into every door-way, and when he came to the "sign of the arbour," a very ancient shop full of recesses, he went into each of these recesses, so that a spectator saw him alternately appearing and disappearing. when he at length reappeared just under a lamp berger recognised him; it was really the old servant. "like a faithful dog seeking his master," he said to himself as he hurried towards him. franz rushed to meet him. "you know nothing of him?" "be quiet, man. we will look for him together." "no, separately!" he seized berger's arm and grasped it convulsively. "you by the river-side and i up here. there is not a moment to lose." berger asked no more questions but hurried down the broad, inclined street that led to the river. here, in cross street, where most of the pleasure-resorts were, there were still signs of life; he had repeatedly to get out of the way of drunken men who passed along bawling; poor forlorn looking girls brushed past him. in one of the quieter streets he noticed a moving light coming nearer and nearer: it was a large lantern in the hand of a servant who was carefully lighting the gentleman who followed him. berger recognised the features of the little, wizened creature who, in spite of the awful weather was contentedly tripping along, with satisfaction in every lineament, under the shelter of a mighty umbrella; it was the deputy chief-justice, herr von werner. he would have passed by without a word, but werner recognised him and called to him. "eh! eh! it's dr. berger!" he snickered. "out so late! hee, hee! i seem to be meeting all the important people! first--hee! hee! the lord chief justice and now----" "have you seen him?" "why yes. you are surprised? so was i! just as i stepped out of my son-in-law's house, he passed by. i called after him because i wanted to tell him the news. for you may congratulate me, dr. berger. certainly, you annoyed me this morning, you annoyed me very much i but in my joy i will forgive you! my first grandson, a splendid boy, and how he can cry!" "where did you see him? when?" "eh! goodness me, what is the matter with you? it was scarcely five minutes ago, he was going--only fancy--towards wurst street. you seem upset! and he wouldn't listen to me! why, what is the matter?" berger made no reply. without a word of farewell, he rushed precipitately down the street out of which werner had come and turned to the right into a narrow, dirty slum which led by a steep incline to the river. this was wurst street, the poorest district of the town, the haunt of porters, boatmen and raftsmen; alongside the narrow quay in which the street ended, lay their craft; the corner building next the river was the public house which they frequented. a light still glimmered behind its small window-panes and, as berger hurried by, the sound of rough song and laughter greeted his ears. he did not stop till he came right up to the river's edge. its waters were swollen by the autumn rains; swift and tumultuous they coursed along its broad bed, perceptible to the ear only, not to the eye, so fearfully dark was the night. berger could not even distinguish the wooden foot-bridge that here crossed the river, until he was close up to it. hesitatingly he stepped upon the shaky structure. the bridge was scarcely two foot broad, its balustrade was rotten and the footway slippery. over on the other side a solitary light, a lantern, was struggling against wind and fog; its reflection swayed uncertainly on the soaking bridge; when it suddenly flared up in the wind, its flickering, red light revealed for a moment the angry, swollen flood. berger stood still irresolutely; the place was so desolate, so uncanny; should he stay any longer? then suddenly a low cry escaped him and he darted forward a step. the lantern opposite had just flared up and by its reflection he had seen a man approach the bridge and step upon it. it seemed to berger as if this were sendlingen, but he did not know for certain, as the lantern was again giving only the faintest glimmer. the man approached nearer, slowly, and with uncertain step, groping for the balustrade as he came. once more the lantern flared up--there was the long inverness, the gray hat--berger doubted no longer. "victor!" he would have shouted at the top of his voice, but the word passed over his lips huskily, almost inaudibly: he would have darted forward ... but could only take one solitary step more, so greatly had the weirdness of the situation overpowered him. sendlingen did not perceive him: he stopped scarcely ten paces from his friend and bent over the balustrade. resting on both arms, there he stood, staring at the wild and turbulent water. thus passed a few seconds. again the lantern flickered up, for a moment only it gave a clear light. sendlingen had suddenly raised himself and berger saw, or thought he saw, that the unfortunate man was now only resting with one hand on the railing, that his body was lifted up.... "victor!" in two bounds, in two seconds, he was beside him, had seized him, clasped him in his arms. "george!" awful, thrilling was the cry--a cry for help?--or a cry of baffled rage? then berger felt this convulsive body suddenly grow stiff and heavy--he was holding an unconscious burden in his arms. chapter vii. shortly after there was such vigorous knocking at the windows of the little river-side inn that the panes were broken. the landlord and his customers rushed out into the street, cursing. but they ceased when they saw the scared looking figure with its singular burden; silently they helped to bring the prostrate form into the house. the landlord had recognized the features; he whispered the news to the others, and so great was the love and reverence that attached to this name, that the rough, half-drunken fellows stood about in the bare inn-parlor, as orderly and reverent as if they were in church. the body lay motionless on the bench which they had fetched; a feather, held to the lips, scarcely moved, so feebly did the breath come and go. the one remedy in the poor place, the brandy with which his breast and pulses were moistened, proved useless; not till the parish doctor, whom a raftsman hurriedly fetched, had applied his essences, did the unconscious man begin to breathe more deeply and at length open his eyes. but his look was fixed and weird; the white lips muttered confused words. then the deep red eyelids closed again; they showed, as did the tear-stains on his cheeks, how bitterly the poor wretch had been weeping in his aimless wanderings. "we must get him home at once," said the doctor. "there is brain fever coming on." berger sent to the hospital for a litter; it was soon on the spot; the sick man was carefully laid on it. the bearers stepped away rapidly; the doctor and berger walked alongside. when they reached the market-place they came across franz. "dead?" he screamed; but when he heard the contrary, he said not another word, but hurried on ahead. in this way fräulein brigitta was informed; she behaved more calmly than berger could have believed. the bed was all ready; the doctor attached to the courts was soon on the spot. he was of the same opinion as his colleague. "a mortal sickness," he told berger, "the fever is increasing, his consciousness is entirely clouded. perhaps it is owing to overwork at the inquiry in vienna?" he added. "he may have caught a severe cold on the top of it." the parish doctor departed, franz was obliged to go to the chemist's; berger and the resident doctor remained alone with the invalid. the barrister had a severe struggle with himself; should he tell the doctor the whole truth? to any unsuspecting person, sendlingen's demeanor must have seemed like the paroxysm of a fever, but he knew better! certainly the sufferer was physically ailing, but it was not under the weight of empty fancies that he was gently sobbing, or burying his anguish-stricken face in the pillow; the excess of his suffering, the terror of his lonely wanderings had completely broken down his strength; all mastery of self had vanished; he showed himself as he was; in a torment of helplessness. and that which seemed to the doctor the most convincing proof of a mind unhinged berger understood only too well; as for instance when sendlingen beckoned to him, and beseechingly whispered, as if filled with the deepest shame: "go, george, can't you understand that i can no longer bear your looks?" after this berger went out and sank into a chair in the lobby, and the gruesome scene rose before him again; the lonely bridge lit by the flickering lantern; the roaring current beneath him ... "oh, what misery!" he groaned, and for the first time for many years, for the first time perhaps, since his boyhood, he broke out into sobs, even though his eyes remained dry. a rapid footstep disturbed him. it was franz returning with the medicine. berger told him to send the doctor to him at once. "doctor," he said, "you shall know the truth as far as i am at liberty to tell it." a misfortune, he told him, had befallen sendlingen, a misfortune great enough to crush the strongest man. "your art," he concluded, "cannot heal the soul, i know. but you can give my poor friend what he most of all needs; sleep! otherwise his torture will wear out both body and soul." the doctor asked no questions; for a long while he looked silently on the ground. then he said, briefly: "good! fortunately i have the necessary means with me." he went back to the sick-room. ten minutes later, he opened the door and made berger come in. sendlingen was in a deep sleep; and it must have been dreamless, for his features had smoothed themselves again. "how long will this sleep last?" asked berger. "perhaps till mid-day to-morrow," replied the doctor, "perhaps longer, since the body is so exhausted. at least, we shall know to-morrow whether there is a serious illness in store. but even if there is not, if it is only the torture of the mind that returns, it will be bad enough. very bad, in fact. do you know no remedy for it?" "none!" answered the honest lawyer, feebly. they parted without a word in the deepest distress. by earliest dawn, when the bells of the cathedral rang forth for the first time, berger was back again in his friend's lobby. "thank god, he is still sleeping," whispered fräulein brigitta. "the worse has past, hasn't it?" "we will hope so," he replied, constrainedly. for a long time he stood at the window and stared out into the court-yard; involuntarily his gaze fixed itself on the little door in the wall which was so small and low that he had never noticed it before; now he observed it for the first time. then he roused himself and went to the other part of the building to see his unfortunate client. "how is victorine lippert?" he asked of the governor who happened to be at the door. "poor thing!" he said, with a shrug of the shoulders. "it will soon be all over with her, and that will be the best thing for her." "has she been suddenly taken ill?" "no, dr. berger, she is just the same as before, but the doctor does not think she will last much longer. 'snuffed out like a candle,' he says. if she had any sort of hope to which her poor soul might cling; but as it is ... herr von werner had sent him to her to see what punishment she could bear for yesterday's scene in court, but the doctor said to him afterward: 'it would be sheer barbarity! let her die in peace!' but herr von werner was of opinion that he could not pass over the offence without some punishment, and that she would survive one day of the dark cell; he only relented when father rohn interceded for her. the priest was with her yesterday at two o'clock, and has made her peace with god. do you still intend to appeal? well, as you think best. but it will be labor in vain, dr. berger! she will die before you receive the decision." "god forbid!" cried berger. the governor shook his head. "she would be free in that case," he said. "why should you wish her to live? what do you hope to attain? commutation to penal servitude for life, or imprisonment for twenty years! does that strike you as being better? i don't think so; in my profession it is impossible to believe it, dr. berger. well, as you think best! if you want to speak to victorine lippert, the warder shall take you round." the governor departed; berger stood looking after him a long while. then he stepped out into the prison yard and paced up and down; he felt the need of quieting himself before going into her cell. "that would be frightful," he thought. "and yet, perhaps, the man is right, perhaps it would really be best for her--and for him!" he tried to shake off the thought, but it returned. "and it would mean the end of this fearful complication, a sad, a pitiable end--but still an end!" but then he checked himself. "no, it would be no end, because it would be no solution. in misery he would drag out his whole existence; in remorse; in despair! no, on the contrary, her death might be the worst blow that could befal him! but what is to be done to prevent it? it would be possible to get her ordered better food, a lighter cell, and more exercise in the open. but all that would be no use if she is really as bad as the doctor thinks! she will die--o god! she will die before the decision of the supreme court arrives." more perplexed and despairing than before, he now repaired to her cell. the warder unlocked it and he entered. victorine was reclining on her couch, her head pressed against the wall. at his entrance, she tried to rise, but he prevented her. "how are you?" he asked. "better, i hope?" "yes," she answered softly, "and all will soon be well with me." he knew what she meant and alas! it was only too plainly visible that this hope at least was not fallacious. paler than she had latterly been it was almost impossible that she should become, but more haggard berger certainly thought her; her whole bearing was more broken down and feeble. "she is right," he thought, but he forced himself and made every endeavour to appear more confident than he really was. "i am glad of that!" he tried to say it in the most unconstrained manner in the world, but could only blurt it out in a suppressed tone of voice. "i hope----" she looked at him, and, in the face of this look of immeasurable grief, of longing for death, the like of which he had never seen in any human eyes, the words died on his lips. it seemed to him unworthy any longer to keep up the pretence of not understanding her. "my poor child," he murmured, taking her hand, "i know. i know. but you are still young, why will you cease to hope? i have drawn up the appeal, i shall lodge it to-day--i am sure you will be pardoned." "that would be frightful!" she said in a low tone. "i begged you so earnestly to leave it alone. but i am not angry with you. you have done it because your pity constrained you, perhaps, too, your conscience and sense of justice--and to me it is all one! my life at all events, is only a matter of weeks: i shall never leave this cell alive! thank heaven! since yesterday afternoon this has become a certainty!" "the doctor told you? oh, that was not right of him." "do not blame him!" she begged. "it was an act of humanity. if he had only told me to relieve me of the fear of the hangman, he should be commended, not reproved. but it happened differently; at first he did not want to tell me the truth, it was evident from what he was saying, and when the truth had once slipped out, he could no longer deny it. he was exhorting me to hope, to cling to life, he spoke to me as you do, 'for otherwise' he said, 'you are lost! my medicines cannot give you vital energy!' his pity moved him to dwell on this more and more pointedly and decidedly. 'if you do not rouse yourself,' he said at last, 'you will be your own executioner.' he was frightened at what he had said almost before he had finished, and still more when i thanked him as for the greatest kindness he could have done me. he only left me to send father rohn. he came too, but----" she sighed deeply and stopped. "he surely didn't torture you with bigoted speeches?" asked berger. "i know him. father rohn is a worthy man who knows life; he is a human being ..." "of course! but just because he is no hypocrite he could say nothing that would really comfort me for this life. at most for that other life, which perhaps--no certainly!" she said hurriedly. "so many people believe in it, good earnest men who have seen and suffered much misfortune, how should a simple girl dare to doubt it? certainly, dr. berger, when i think of my own life and my mother's life, it is not easy to believe in an all-just, all-merciful god. but i do believe in him--yes! though so good a man as father rohn could only say: amends will be made up there. only the way he said it fully convinced me! but, after all, he could only give me hope in death, not hope for life." "certainly against his will," cried berger. "you did not want to understand him." "yes, dr. berger, i did want to understand him and understood him--in everything--excepting only one thing," she added hesitatingly. "but that was not in my power--i could not! and whatever trouble he took it was in vain." "and what was this one thing?" "he asked me if there was no one i was attached to, who loved me, to whom my life or death mattered? no, i answered, nobody--and then he asked--but why touch upon the hateful subject! let us leave it alone, dr. berger." "no," cried berger, white with emotion, "i implore you, let us talk about it. he asked you whether you did not know your father." she nodded; a faint red overspread her pale cheeks. "and you answered?" "what i have told you: that i did not know him, that if he were living i should not love and reverence him as my father, but hate and despise him as the wretch who ruined my mother!" she had half raised herself, and had spoken with a strength and energy that berger had not believed possible. now she sank back on her couch. he sighed deeply. "and you adhered to that," he began again, "whatever father rohn might say? he told you that on the threshold of--that in your situation one should not hate, but forgive, that whoever hopes for god's mercy must not himself condemn unmercifully!" "yes," she replied, "he said so, if perhaps in gentler words. for he seemed to feel that i did not require to depend on god's mercy, but only on his justice." "forgive me!" muttered berger. "for i know your fate and know you. but just because i know your affectionate nature and your need of affection----" he stopped. "gently," he thought, "i must be cautious." "don't consider me unfeeling," he then continued, "if i dwell upon this matter, however painful it may be to you. just this one thing: does it follow that this man must be a wretch? were there not perhaps fatal circumstances that bound him against his will and prevented him doing his duty to your poor mother?" "no," she answered. "i know there were not!" "you know there were not?" murmured berger in the greatest consternation. "but do you know him?" "yes. i know his heart, his character, and that is enough. what does it matter to me what his name is, or his station? whether he is living or dead? to me he has never lived! i know him from my mother's judgment, and that she, the gentlest of women, could not judge otherwise, proves his unworthiness. only one single time did she speak to me of him, when i was old enough to ask and to be told why people sometimes spoke of us with a shrug of the shoulders. 'if he had been thoughtless and weak,' she said to me, 'i could have forgiven him. but i have never known a man who viewed life more earnestly and intelligently: none who was so strong and brave and resolute as he. it was only from boundless selfishness, after mature, cold-blooded calculation that he delivered me to dishonor, because i was an obstacle in his career.' you see he was more pitiless than the man whom i trusted." "no," cried berger in the greatest excitement. "you do him injustice!" "injustice! how do you know that? do you know him?" he turned away and was silent. "no," he then murmured, "how should i know him?" "then why do you dissent from me with such conviction? oh, i understand," she went on bitterly, "you, even you, don't think my mother's words trustworthy, and simply because she allowed herself to be deluded by a wretch!" "no, indeed!" returned berger, trying to compose himself, "for i know how noble, how true and good your mother was, i know it from her letters. the remark escaped me unawares. but you are right. let us drop this subject." then he asked her if she would like to have some books. she answered in the negative and he left the cell. "sendlingen must never see her!" he thought when he was back in the street. "if he were to enter her cell he would betray himself and then learn what she thinks of him! it would utterly crush him. that, at least, he shall be spared." but the next few minutes were to show him that he had been planning impossibilities. as he passed the chief justice's residence, an upstairs window opened; he heard his name called loud and anxiously. it was fräulein brigitta. "quickly," cried she, beckoning him to come up. he hurried up the stairs, she rushed to meet him. "heaven has sent you to us," she cried, weeping and wringing her hands. "how fortunate that i accidentally saw you passing. we were at our wits' end? he insists on going out. franz is to dress him. we do not know what has excited him so. father rohn has been to see him, but he talked so quietly with him that we breathed again indeed. it is manifestly a sudden attack of fever, but we cannot use force to him." berger hurried to the bedroom. sendlingen was reclining in an arm-chair, franz was attending to him. at his friend's entrance he coloured, and held up his hand deprecatingly. "they have fetched you," he cried impatiently. "it is useless! i am not going to be prevented!" berger signed to franz to leave the room. not until the door was closed behind him did he approach the sick man, and take his hand, and look searchingly into his face. it reassured him to see that, though his eyes were dim, they no longer looked wild and restless as they did a few hours ago. "you are going to her?" he asked. "that must not be." "i must!" cried sendlingen despairingly. "it is the one thought to which i cling to avoid madness. when i awoke--i was so perplexed and desolate, i felt my misery returning--then i heard rohn's voice in the next room. they were going to send him away: i was still asleep, they said,--but i made him come in, because i wanted to hear some other voice than that of my conscience, and because i was afraid of myself. i did not dream that he was bringing me a staff by which i could raise myself again." "you asked him about her?" "no, by the merest chance he began to tell me of his talk with her yesterday, and how she was wasting away because there was no one on earth for whose sake she could or would rouse herself. oh, what i felt! despair shook my heart more deeply than ever, and yet i could have thanked him on my knees for these good tidings. now my life has an object again, and i know why fate has allowed me to survive this day." berger was silent--should he, dared he, tell the truth? "think it over a while," he begged. "if you were to betray yourself to the officials----" "i shall not do so. and if i did, how could that trouble me? don't you see that a man in my situation cannot think of himself or any such secondary consideration?" "that would be no secondary consideration. and could you save her by such a step? the situation remains as it was!" "are you cruel enough to remind me of that?" cried sendlingen. "but, thank god! i am clear enough to give you the right answer instead of allowing myself to be oppressed by misery. now listen; i shall do what i can! from the hangman, from the prison, i may not be able to save my child, but perhaps i can save her from despair, from wasting away. i shall say to her: live for your father, as your father lives for you! perhaps this thought will affect her as it has affected me; it has saved me from the worst. another night like last night, george!" he stopped and a shudder ran through his body. "such a night shall not come again! i do not know what is to be done later on, but my immediate duty is clear. i have been fighting against the instinct that drew me to her, as against a suggestion of madness; i now see that it was leading me aright." he laid his hand on the bell to summon franz. berger prevented him, "wait another hour," he implored. "i will not try to hinder you any more; i see that it would be useless, perhaps unjust. but let me speak to her first. humour me in this one thing only. you agreed to do so yesterday." "so be it!" said sendlingen. "but you must promise not to keep me waiting a minute longer than is absolutely necessary." berger promised and took his leave. he was not a religious man in the popular sense of the word, and yet as he again rang the prison bell, he felt as if he must pray that his words would be of effect as a man only can pray for a favour for himself. the warder was astonished when he again asked admission to the cell, and victorine looked at him with surprise. he went up to her. "listen to me," he begged. "i have hitherto wished to conceal the truth from you, with the best intentions, but still it was not right. for falsehood kills and truth saves, always and everywhere--i ought to have remembered that. well then; i know your father; he is my best friend, a man so noble and good, so upright and full of heart, as are few men on this poor earth." she rose. "if that were so my mother would have lied," she cried. "can i believe you rather than my mother? can you expect that of me?" "no," he replied. "your mother judged him quite correctly. he did not betray her through thoughtlessness, nor forsake her through weakness. but much less still from cold-blooded calculation. no external constraint weighed upon him but an internal,--the constraint of education, of his convictions, of his views of the world and men, in short, of his whole being, so that he could hardly have acted differently. with all this there was such a fatal, peculiar concatenation of external circumstances, that it would have needed a giant soul not to have succumbed. we are all of us but men. i would not trust anyone i know, not even myself, to have been stronger than he was! not one, victorine! will you believe me?" "my mother judged otherwise!" she replied. "and will you perhaps also attempt to justify the fact that he never concerned himself about his child?" "he knew nothing of you," cried berger. "he did not dream that he had a child in the world! and one thing i can assure you: if he had accidentally heard that you were alive, he would not have rested until he had drawn you to his heart, he would have sheltered you in his arms, in his house, from the battle with misery and the wickedness of men. not only his heart would have dictated this, but the absence of children by his marriage, and his sense of justice: so as to make good through you what he could no longer make good to your poor mother. if you could only imagine how he suffers!--you must surely be able to feel for him: a noble man, who suddenly learns that his offence is ten times greater than he had thought or dreamt; that he has a child in the world against whom also he has transgressed, and who learns all this at a moment when he can make no reparation--in such a moment--can you grasp this, victorine?" her face remained unmoved. "what shall i say?" she exclaimed gloomily. "if he really suffers, the punishment is only just. what did my mother not suffer on his account! and i!" "but can we ascribe all the blame to him?" he cried. "all, victorine?" "perhaps," she answered. "but if not all, then the most, so much that i will certainly believe you in one thing; if he is a human being at all, then he should now be suffering all the tortures of remorse. still, as great as my sorrow, his cannot be! and is my guilt greater than his? and has he, too, to expiate it with honour and life?" "quite possibly!" he cried. "perhaps with his life, seeing that he cannot, situated as he now is, expiate it with his honour. oh, if you knew all! if you knew what an unprecedented combination of circumstances has heightened the sense of his guilt, has increased his sorrow to infinite proportions. and you shall know all." "i will not hear it," she cried with a swift movement of repulsion, "i do not care, i may not care about it. i will not be robbed of my feelings against this man. i will not! his punishment is just--let us drop the subject." "just! still this talk about just! you are young but you have experienced enough of life, you have suffered enough, to know how far this justice will bring us. an eye for an eye and a tooth for a tooth--shall this pitiless web of guilt and expiation continue to spin itself everlastingly from generation to generation? can't you understand that this life would be unendurable if a high-minded deed, a noble victory over self, did not at times rend the web? you should understand this, poor child, you more than anyone. do such a deed, forgive this unhappy man!" "did he send you to me on this mission?" "no. i will be truthful in the smallest detail: i myself wrested from him permission to prepare you for his coming. i wished to spare you and him the emotions of a melancholy contest. for he does not even suspect what you think of him." "he does not suspect it?" she cried. "he thinks that the balance is struck, if he graces a fallen, a condemned creature with a visit! oh, and this man is noble and sensitive!" "you are unjust to him in that, too," protested berger. "and in that most of all. that he who can usually read the hearts of men like a book, has not thought of this most obvious and natural thing, shows best of all how greatly his misery has distracted and desolated him. he only wants one thing: to come to you, to console you, to console himself in you." "i will not see him, you must prevent it." "i cannot. i have tried in vain. he will come; his reason, perhaps his life, depend upon the way you may receive him." "do not burden me with such responsibilities," she sobbed despairingly. "i cannot forgive him. but i desire nobody's death, i do not wish him to die. tell him what you like, even that i forgive him, but keep him away, i implore you." she would have thrown herself at his feet but he prevented her. "no, not that," he murmured. "i will not urge any more. as god wills." a few minutes later he was again with sendlingen. "she knows all," he told him, "except your name and station. she does not desire your visit--she--dreads the excitement." he stopped short and looked anxiously at his friend; he feared another sudden outburst of despair. but it did not come. sendlingen certainly started as in pain, but then he drew himself up to his full height. "you are concealing the truth from me," he said. "she does not wish to see her mother's betrayer. i did not think of it before, but i read it at once in your looks of alarm. that is bad, very bad--but stop me, it cannot. where the stranger has tried in vain the father will succeed. my heart tells me so." he called for his hat and stick and leaning on berger's arm, went down the steps. in the street he loosed his hold: the energy of his soul had given his body new strength. with a firm step he walked to the prison door, and the quiver in his voice was scarcely perceptible as he gave the warder the order to open victorine lippert's cell. the official obeyed. the prisoner hardly looked up when she heard the bolts rattle yet another time. the warder felt himself in duty bound to call her attention to the importance of the visit she was about to receive. "his lordship, the chief justice, baron sendlingen!" he whispered to her. "inspection of the cells. stand up." he stepped back respectfully to admit sendlingen and locked the door after him. the two were alone. victorine had risen as she had been told: once only did she cast a transient and nonchalant look at the tall figure before her, then she remained standing with bowed head. similar inspections had frequently taken place before; in each case the functionary had briefly asked whether the prisoner wished anything or had any complaint to make. this question she was waiting for now in order to reply as briefly in the negative; she wanted nothing more. but he was silent, and as she looked up surprised--"merciful god!" she cried, and reeled back on to her couch, covering her face with her trembling hands. she knew who this man was at once, at the first glance. how she had recognised him with such lightning speed, she could not determine, even later when she thought the matter over. it was half dark in the cell, she had not properly seen his features and expression. perhaps it was his attitude which betrayed him. with bowed head, his hands listlessly hanging by his sides, he stood there like a criminal before his judge. at her exclamation, he looked up and came nearer. "victorine," he murmured. she did not understand him, so low was his stifled articulation. "my child!" he then cried aloud and darted towards her. she rose to her feet and stretched out her hands as if to repel him, gazing at him all the while with widely opened eyes. and again she did not know what it was that suddenly penetrated and moved her heart. was it because his face seemed familiar to her, mysteriously familiar, as if she had seen it ever since she could think?... yes, it was so! for what unknown to herself, had overpowered her, was the likeness to her own face. or was it perhaps the silent misery of his face, the beseeching look of his eyes? she felt the bitter animosity to which she had despairingly clung, the one feeling of which she would not be robbed, suddenly melt away. "i cannot," she still faltered, but in the same breath she lifted up her arms. "father!" she cried and threw herself on his breast. he caught her in his arms and covered her head and face with tears and kisses. then he drew her upon his knees and laid her head on his breast. thus they sat and neither spoke a word; only their tears flowed on and on. chapter viii. half an hour might have passed since sendlingen entered his daughter's cell: to berger, who was pacing up and down outside as sentry, it seemed an eternity. the warder, too, was struck by the proceeding. this zealous, but very loquacious official, whom berger had known for many years, approached him with a confidential smile. "there must--naturally enough--be something strange going on in there," he said as he pointed with a smirk towards the cell. "something very strange." berger at first stared at the man as much disconcerted as if he had said that he knew the secret. "what do you mean by that," he then said roughly. "your opinions are not wanted." the warder looked at him amazed. "well, such as we--naturally enough--are at least entitled to our thoughts," he replied. "there has been a run upon this cell since yesterday as if it contained a princess! first the doctor. father rohn and you, herr berger--and now his lordship the chief justice, and all in little more than an hour's time. that doesn't occur every day, and i know the reason for it." berger forced himself to smile. "of course you do, because you're such a smart fellow, höbinger! what is the reason of it?" "well with you, dr. berger, i can--naturally enough--talk about the matter," replied the warder flattered, "although you are the prisoner's counsel and a friend of the chief justice. but in you made great speeches and were always on the side of the people; you will not betray me, dr. berger. well--naturally enough--it is the old story: there is no such thing as equality in this world! if she, in there, were a servant-girl who had been led astray by a servant-man, not a soul would trouble their heads about her! but she is an educated person, and what is the principal thing--her seducer is a count--that alters matters. of course she had to be condemned--naturally enough--because the law requires it, but afterwards every care is taken of her, and if she were to get off with a slight punishment i, for one, shouldn't be surprised. of course the governor says that that's nonsense; if it were a case of favouritism he says, herr von werner would have behaved differently to her; the vice chief justice, he says, has a very keen scent for favouritism; you, höbinger, he says--naturally enough--are an ass! but i know what i know, and since his lordship has taken the trouble to come, not in a general inspection, but on a special visit that is lasting longer than anything that has ever been heard or dreamt of, i am quite convinced that it is not i, but on the contrary, the governor...." but the crafty fellow did not allow this disrespect to his superior to pass his lips, but contented himself by triumphantly concluding: "naturally enough--is it not, dr. berger?" berger thought it best to give no definite answer. if this chatter-box were to confide his suspicions to the other prison officials, it would at least be the most harmless interpretation and therefore he only said: "you think too much, höbinger. that has often proved dangerous to many men." another half hour had gone by and berger's anxiety and impatience reached the highest pitch. he was uncertain whether to put a favourable or an unfavourable interpretation upon this long stay of sendlingen's, and even if he had succeeded in touching his child's heart, yet any further talk in this place and under these conditions was a danger. how great a danger, berger was soon to see plainly enough. the artful höbinger was slinking about near the cell more and more restlessly. only berger's presence kept him from listening at the key-hole, or from opening the little peep-hole at the door, through which, unobserved by the prisoner, he could see the inside of every cell. the desire was getting stronger and stronger; his fingers itched to press the spring that would open it. at last, just as berger had turned his back, he succumbed to his curiosity; the little wooden door flew open noiselessly--he was going to fix his eyes in the opening.... at that moment berger happened to turn round. "what are you doing there?" he cried in such a way that the man started and stepped back. in a second berger was beside him, had seized his arms and flung him aside. "what impertinence!" he cried. the warder was trembling in every limb. "for god's sake," he begged, "don't ruin me. i only wanted to see whether--whether his lordship was all right." "that's a lie!" cried berger with intentional loudness. "you have dared----" he did not require to finish the sentence; his object was attained: sendlingen opened the door and came out of the cell. his face bore once more its wonted expression of kindly repose; he seemed to have recovered complete mastery of himself. "you can lock up again," he said to the warder. he seemed to understand what had just passed for he asked no questions. still höbinger thought it necessary to excuse himself. "my lord," he stammered, "i only wanted to do my duty. it sometimes happens that--that criminals become infuriated and attack the visitors." "does that poor creature in here strike you as being dangerous?" asked sendlingen. it seemed to berger almost unnatural that he could put forth the effort to say this, nay more, that he could at the same time force a smile. "my lord----" "never mind, höbinger! you were perhaps a little inquisitive, but that shall be overlooked in consideration of your former good conduct. besides, prisoners are allowed no secrets, at all events after their sentence." turning to berger he continued: "she must be taken to the infirmary this afternoon, it is a necessity. have you anything else to do here? no? well, come back with me." it all sounded so calm, so business-like--berger could hardly contain his astonishment. he would never have believed his friend capable of such strength and especially after such a night--after such an interview! "i admire your strength of nerve," cried he when they got out into the street. "that was a fearful moment." "indeed it was!" agreed sendlingen, his voice trembling for the first time. "if the fellow had cast one single look through the peep-hole, we should have both been lost! fancy höbinger, the warder, seeing the chief justice with a criminal in his arms!" "ah then, it came to that?" "should i otherwise be so calm? i am calm because i have now an object again, because i see a way of doing my duty. oh, george, how right you were: happy indeed am i that i live and can pay my debt." "what do you think of doing?" "first of all the most important thing: to preserve her life, to prepare her for life. as i just said, she shall be allotted a cell in the infirmary and have a patient's diet. i may do this without dereliction of duty: i should have to take such measures with anyone else if i knew the circumstances as accurately as i do in this case." "but you will not be able to visit her too often in the infirmary," objected berger. "certainly not," replied sendlingen. "i see that the danger is too great, and i told her so. yes, you were right in that too: it is no secondary consideration whether our relationship remains undiscovered or not. i cannot understand how it was that i did not see this before: why, as i now see, _everything_ depends upon that. and i see things clearly now; this interview has worked a miracle in me, george--it has rent the veil before my eyes, it has dispelled the mist in my brain. i know i can see victorine but seldom. on the other hand brigitta will be with her daily: for she is a member of the 'women's society,' and it will strike nobody if she specially devotes herself to my poor child." "it will not strike others, but will she not herself guess the truth?" "why, she shall know all! i will tell her this very day. she is entirely devoted to me, brave and sterling, the best of women. besides i have no choice. intercourse with a good, sensible woman is of the most urgent necessity to my poor dear. but i have not resolved on this step simply for that reason. i shall need this faithful soul later on as well." "i understand--after the term of imprisonment is at an end." sendlingen stood still and looked at his friend; it was the old look full of wretchedness and despair. "yes!" he said unsteadily. "certainly, i had hardly thought of that. i do not indulge any extravagant hopes: i am prepared for anything, even for the worst. and just in this event brigitta's help would be more than ever indispensable to me." "if the worst were to happen?" asked bergen "how am i to understand that?" sendlingen made no reply. not until berger repeated the question did he say, slowly and feebly: "such things should not be talked about, not with anyone, not even with a best friend, not even with one's self. such a thing is not even dwelt upon in thought; it is done when it has to be done." his look was fixed as he spoke, like a man gazing into a far distance or down into a deep abyss. then his face became calm and resolved again. "one thing more," he said. "you have finished drawing up the appeal? may i read it? forgive me, of course i have every confidence in you. but see! so much depends upon it for me, perhaps something might occur to me that would be of importance!" "what need of asking?" interrupted berger. "it would be doing me a service. we will go through the document together this very day." when he called on his friend in the evening with this object, fräulein brigitta came out to see him. the old lady's eyes were red with crying, but her face was, as it were, lit up with a strong and noble emotion. "i have already visited her," she whispered to berger. "oh believe me, she is an angel, a thousand times purer than are many who plume themselves or their virtue. i bade her be of good cheer, and then i told her much about his lordship--who knows better how, who knows him better? she listened to me peacefully, crying quietly all the time and i had to cry too--. but all will come right; i am quite sure of it. if the god above us were to let these two creatures perish, _these_ two----" her voice broke with deep emotion. berger silently pressed her hand and entered the study. he found his friend calm and collected. sendlingen no longer complained; no word, no look, betrayed the burden that oppressed his soul. he dispatched his business with berger conscientiously and thoroughly, and as dispassionately as if it were a law examination paper. more than that--when he came to a place where berger, in the exaltation of the moment, had chosen too strong an expression, he always stopped him: "that won't do: we must find calmer and more temperate words!" and usually it was he too who found these calmer and more temperate words. down to the last word he maintained this clearness, this almost unnatural calm. not until berger had folded his paper and was putting it in his pocket did the consciousness of his misery seem to return. involuntarily he stretched forth his hand towards the paper. "you want to refer to something again?" asked berger. "no!" his hand dropped listlessly. "besides it is all labour in vain. my lot is cast." "your lot?" cried berger. "however much you may be bound up with the fate of your child, you must not say that!" "_my_ lot, _only_ my lot!" berger observed the same peculiar look and tone he had before noticed when sendlingen said that such things should not be spoken of even to one's self.... but this time berger wanted to force him to an explanation. "you talk in riddles," he began; but he got no further, for, with a decision that made any further questions impossible, sendlingen interrupted him: "may i be spared the hour when you learn to know this riddle! even you can have no better wish than this for me! why vainly sound the lowest depths? good night, george, and thanks a thousand, thousand times!" chapter ix. six weeks had elapsed since the dispatch of the appeal: christmas was at the door. the days had come and gone quickly without bringing any fresh storm, any fresh danger, but certainly without dispelling even one of the clouds that hung threateningly over the heads of these two much-to-be-commiserated beings. berger was with sendlingen daily, and daily his questioning look received the same answer; a mute shake of the head--the decision had not yet arrived. the supreme court had had the papers connected with the trial brought under its notice; beyond the announcement of this self-evident fact, not a line had come from vienna. this silence was certainly no good sign, but it did not necessarily follow that it was a bad one. to be sure the lawyer examining the case, unless, from the first, he attributed no importance whatever to berger's statements, should have demanded more detailed information from the court at bolosch, and all the more because baron dernegg's dissentient vote was recorded in the papers. still, perhaps this silence was simply to be explained by the fact that he had not had an opportunity of going into the case. berger held fast to this consoling explanation, or at least pretended to do so, when the subject came up in conversation, which was seldom enough; he did not like to begin it, and sendlingen equally avoided it. it almost seemed to berger as if his unhappy friend welcomed the delay in the decision, as if he gladly dragged on in a torture of uncertainty from day to day--anything so as not to look the dread horror in the face. and indeed sendlingen every morning sighed with relief, when the moment of horrid suspense had gone by, when he had looked through the vienna mail and found nothing. but this did not arise from the motive which berger supposed, but from a better feeling. sendlingen rejoiced in every hour of respite that gave his poor child more time to gather strength of soul and body. the shattered health of victorine mended visibly, day by day. the deathly pallor disappeared, her weakness lessened, the look of her eyes was clearer and steadier. the doctor observed it with glad astonishment and no little pride; he ascribed the improvement to his remedies, to the better nourishment and care which on his representations had been allotted her. when he boasted of it to his friend, father rohn, the good priest met him with as bantering a smile as his kind heart would allow; he knew better. if this poor child was blossoming again, the merit was entirely his. had not the doctor himself said that she could only be saved by a change in her frame of mind? and had not this change really set in even more visibly than her physical improvement? a new spirit had entered into victorine. she no longer sat gazing in melancholy brooding, she no longer yearned for death, and when the priest sought to nourish in her the hope of pardon--in the sincerest conviction, for he looked upon the confirmation of the death-sentence as an impossibility--she nodded to him, touched and grateful. she seemed, now, to understand him when he told her that the repentance of a sinner and his after life of good works, were more pleasing to the good god above than his death. and when he once more led the conversation to the man who, in spite of everything, was her father and perhaps at this moment was suffering the bitterest anguish on her account, when he begged her not to harden her heart against the unknown, he had the happiness of hearing her say with fervour in her looks and voice: "i have forgiven him from the bottom of my heart. the thought of him has completely restored me! perhaps god will grant me to be a good daughter to him some day!" so the words of comfort and the exhortations of the good priest had really not been in vain. the true state of the case nobody even suspected; the secret was stringently kept. no doubt it struck many people and gave occasion to a variety of gossip, that fräulein brigitta visited the condemned prisoner almost daily, and the chief justice almost weekly, but a sufficient explanation was sought and found. good-natured and inoffensive people thought that victorine lippert was a creature so much to be pitied, that these two noble characters were only following their natural instincts in according her a special pity; the malevolent adopted the crafty höbinger's view, and talked of "favouritism"; the aristocratic betrayer and his mother the countess, they said, had after all an uneasy conscience as to whether they had not behaved too harshly to the poor creature, and the representations they had made to their fellow-aristocrat, baron von sendlingen, had not been in vain. certainly this report could only be maintained in uninitiated circles; anyone who was intimately acquainted with the aristocratic society of the province knew well enough, that the countess riesner-graskowitz was assuredly the last person in the world to experience a single movement of pity for the condemned girl. be that as it might, sendlingen behaved in this case as he had all his life behaved in any professional matter: humanely and kindly, but strictly according to the law and without over-stepping his duty by a hair's breadth. the better attention, the separate cell in the infirmary, would certainly have been allotted to any one else about whom the doctor had made the same representations. when father rohn, moved by his sense of compassion, sought to obtain some insignificant favour that went beyond these lines--it had reference to some absolutely trifling regulation of the house--the governor of the gaol was ready to grant it, but the chief justice rigidly set his face against the demand. when berger heard of this trivial incident, a heavy burden which he had been silently carrying for weeks, without daring to seek for certainty in a conversation on the subject, was rolled from his heart. he had put an interpretation on the mysterious words that sendlingen had uttered the day after the trial, which had filled him with the profoundest sorrow,--more than that with terror. now he saw his mistake: a man who so strictly obeyed his conscience in small matters where there was no fear of discovery, would assuredly in any greater conflict between inclination and duty, hold fast unrelentingly to justice and honour. he was soon to be strengthened in this view. it was three days before christmas-day when he once more entered his friend's chambers. he found him buried in the perusal of letters which, however, he now pushed from him. "the mail from vienna is not in yet," he said, "the train must have got blocked in the snow. but i have letters from pfalicz. the chief justice of the higher court there, to whose position i am to succeed, asks whether it would not be possible for me to release him soon after the new year, instead of at the end of february, as the minister of justice arranged. he is unwell, and ought to go south as soon as possible." "great heavens!" cried berger. "why, we have forgotten all about that." and indeed those stormy days and the succeeding weeks of silent, anxious suffering had hardly allowed him to think of sendlingen's impending promotion and departure. "i have not," replied sendlingen, gloomily. "the thought that i had to go, has often enough weighed me down more heavily than all my other burdens. how gladly i would stay here now, even if they degraded me to--to the post of governor of the prison! but i have now no option. i have definitely accepted the position at pfalicz and i must enter upon it." "and do you really think of departing at the new year?" "no, that would be beyond my duty. i should be glad to oblige the invalid, but as you know, i cannot. i shall stay till the end of february; the decision must have come by that time." he again bent over a document that lay before him. berger too, was silent, he went to the window and stared out into the grey dusk; it seemed as if the snow-storm would never cease. there was a knock at the door; a clerk of the court of record entered. "from the supreme court," he announced, laying a packet with a large seal on the table. "it has just arrived. personally addressed to your lordship." the clerk departed; berger approached the table. when he saw how excited sendlingen was, how long he remained gazing at the letter, he shook his head. "that cannot be the decision," he said. "it would not be addressed to you. it is some indifferent matter, a question of discipline, a pension." sendlingen nodded and broke the seal. but at the first glance a deathly pallor overspread his face, and the paper in his hands trembled so violently that he had to lay it on the table in order to read it to the end. "read for yourself," he then muttered. berger glanced through the paper; he too felt his heart beat impetuously as he did so. it was certainly not the decision, only a brief charge, but its contents were almost equivalent to it. the lawyers examining the appeal had, as berger hoped, been struck by baron dernegg's dissentient vote and the motives for this. dernegg was not of the opinion of his brother judges that this was a case of premeditated murder, maliciously planned months beforehand, but a deed done suddenly, in a paroxysm of despair, nay, most probably in a moment when the girl was not accountable for her actions. against this more clement view, there certainly were the depositions of the countess, and victorine's attempts to conceal her condition. but on the other hand, her only _confidante_, the servant-girl, had deposed at the preliminary inquiry that victorine had only made these attempts by her advice and with her help, and, moreover, with the sole object of staying in the house until the young count should come to her aid. this testimony, however, she had withdrawn at the trial. berger had chiefly based his appeal to nullify the trial, on the fact that the witness, in spite of this contradiction, had been put on her oath, and to the examining lawyer, also, this seemed a point of decisive importance. the chief justice was, therefore, commissioned to completely elucidate it by a fresh examination of the witness. probably the charge had been directed to him personally because, as it stated, neither herr von werner nor any of the other judges who had been in favour of putting her on oath, could very well be entrusted with the inquiry. but if sendlingen were actually too busy with other matters to conduct the examination, he might hand it over to the third judge, herr von hoche. "what will you do?" asked berger. "the matter is of the gravest importance. that the girl gave false evidence at the trial, that this was her return for being taken back into the countess' service, we know for a certainty. the only question is whether we can convict her of it. an energetic judge could without doubt do so, but will old hoche, now over seventy, succeed? he is a good man, but his years weigh heavily upon him, he is dragging himself through his duties till the date of his retirement--four weeks hence--i fancy as best he can. and therefore once again--what will you do, victor?" "i don't know," he murmured. "leave me alone. i must think it out by myself. forgive me! my conscience alone can decide in such a matter. good-bye till this evening, george." berger departed; his heart was as heavy as ever it had been. in the first ebullition of feeling, moved by his pity for these two beings, he had wished to compel his friend to undertake the inquiry, but now he had scruples. was not the position the same as on the day of the trial? and if he then approved of his friend's resolution not to preside, could he now urge him to undertake a similar task? certainly the conflict was now more acute, more painfully accentuated, but was sendlingen's duty as a judge any the less on that account? again the thought rose in berger's mind which a few weeks ago had comforted him and lifted him above the misery of the moment: that there was a solution of these complications, a great, a liberating solution--there must be, just because this man was what he was! but even now he did not know how to find this solution; one thing only was clear to him: if sendlingen undertook the inquiry and thus saved his child, it would be an act for which there would be all manner of excuses but it would assuredly not be that great, saving act of which he dreamt! and yet if hoche in his weakness ruined the case and did not bring the truth to light, if she perhaps had to die now that she had begun to hope again, now that she had waked to a new life ... berger closed his eyes as if to shut out the terrible picture that obtruded itself upon him, and yet it rose again and again. at dusk, just as he was starting to his friend's, fräulein brigitta called to see him. "i am to tell you," she began, "that his lordship wants you to postpone your visit until to-morrow. but it is not on that account that i have come, but because i am oppressed with anxiety. has the decision arrived? he is as much upset again as he was on the day of the trial." berger comforted her as well as he could. "it is only a momentary excitement," he assured her, "and will soon pass." "i only thought so because he is behaving just as he did then. it is a singular thing; he has been rummaging for those keys again. you know,--the one that opens the little door in the court-yard wall. i came in just in the nick of time to see him take it out of his writing-table drawer. and just as before, it seemed to annoy him to be surprised in the act.--isn't that strange?" "very strange!" he replied. but he added hastily: "it must have been a mere chance." "certainly, it can only have been a coincidence," he thought after brigitta had gone, "it would be madness to impute such a thing to him, to him who was horrified at the idea of conducting the trial and equally at the thought of conducting this examination. and yet when he first seized upon that key, the idea must certainly have taken a momentary possession of him, and that it should have returned to him to-day, to-day of all days." as he was the next day walking along the corridor that led to sendlingen's chambers, he met mr. justice hoche. the hoary old man, supporting himself with difficulty by the aid of a stick, was looking very testy. "only think," he grumbled, "what an odious task the chief justice has just laid upon me. it will interest you, you were counsel for the defence in the case." and he told him of the charge at great length. "well, what do you say to that? isn't it odious?" "it is a very serious undertaking!" said berger. "the matter is one of the greatest importance." "yes, and just for that reason," grumbled the old man, almost whimpering. "i do not want to undertake any such responsibility, now, when merely thinking gives me a head-ache. i suffer a great deal from head-aches, dr. berger. and it is such a ticklish undertaking! for you see either the maid-servant told the truth at the trial, in which case this fresh examination is superfluous, or she lied and _ergo_ was guilty of perjury and _ergo_ is a very tricky female! and how am i ever to get to the bottom of a tricky female, dr. berger?" "did you tell the chief justice this?" asked berger. "oh, of course! for half an hour i was telling him about my condition and how i always get a head-ache now if i have to think. but he stuck to his point, 'you will have to undertake the matter: you must exert yourself!' good heavens! what power of exertion has one left at seventy years of age! well, good morning, dear dr. berger! but it's odious--most odious!" berger looked after the old man as he painfully hobbled along: "and in such hands," he thought, "rests the fate of my two friends." under the weight of this thought, he had not the courage to face sendlingen. he turned and went home in a melancholy mood. when the next day towards noon, he was turning homewards after a trial at which he had been the defending barrister, he again met mr. justice hoche, who was just leaving the building, in the portico of the courts. the old gentleman was manifestly in a high state of contentment. "well," asked berger, "is the witness here already? have you begun the examination?" "begun? i have ended it!" chuckled the old man. "and _re bene gesta_ one is entitled to rest. i shall let the law take care of itself to-day and go home. i haven't even got a head-ache over it; certainly it didn't require any great effort of thought--i soon got at the truth." "indeed?--and what is the truth?" "h'm! i don't suppose it will be particularly agreeable to you," laughed the old judge, leaning confidentially on berger's arm. "though for the matter of that you may be quite indifferent about it: you have done your duty, your appeal was certainly splendidly drawn up, but what further interest can you have in this person? for she is a thoroughly good-for-nothing person, and that's why she is dying so young! what stories that servant-girl has told me about her, stories, my dear doctor, that an old barrack-wall would have blushed to hear. she was hardly seventeen years old when she came to the countess', but already had a dozen intrigues on her record, and what things she told her _confidante_ about them, and which were repeated to me to-day--why, it is a regular decameron, my dear doctor, or more properly speaking: boccaccio in comparison is a chaste carthusian." berger violently drew his arm out of the old man's. "that's a lie!" he said between his teeth. "a scandalous calumny!" the old judge looked at him, quite put out of countenance. "why, what an idea," he cried. "if it were not so, this servant-girl would be a tricky female." "so she is." "she is not! oh, i know human nature. on the contrary, she is good-natured and stupid. no one could tell lies with such assurance, after having just been solemnly admonished to speak the truth. it is all incontestably true; all her adventures: and how from the first she had hatched a regular plot to corrupt the young count. the crafty young person calculated in this way: if our _liaison_ has consequences, i shall perhaps inveigle the young man into a marriage, and if i don't succeed i shall kill the child and look out for another place!" "but just consider this one fact," cried berger. "if this had actually been victorine lippert's plan she would certainly have reflected: if i can't force a marriage, i shall at least get a handsome maintenance! and in that case she would not have killed her child, but carefully have preserved its life." the old judge meditatively laid his finger on his nose. "look here, dr. berger," he said importantly, "that is a very reasonable objection. but it has been adduced already, not by me, to tell the truth, but by my assistant, a very wise young man. but the witness was able to give a perfectly satisfactory explanation on the subject. to be sure, she only did so after repeated questions and in a hesitating and uncertain manner--the good, kind-hearted girl could with difficulty bring herself to add still more to the criminal's load, but at length she had to speak out. thus we almost accidentally extracted a very important detail that proved to be of great importance in determining the case. it is a truly frightful story. only fancy, this mere girl, this victorine lippert, has always had a sort of thirst for the murder of little children. she repeatedly said to the girl long before the deed, before the young count came to the castle at all: 'strange! but whenever i see a little child, i always feel my hands twitching to strangle it.' frightful--isn't it. dr. berger?" "frightful indeed!" cried berger, "if you have believed this poorly-contrived story of the wretched, perjured woman--poorly-contrived, and invented in the necessity of the moment so as to meet the objection of your assistant, so as not to be caught in her net of lies, so as to render the countess another considerable service." "really, you will not listen to reason," said the old man, now seriously annoyed. "i feel my head-ache coming on again. do you mean to say that you accuse the countess of conniving at perjury! a lady of the highest aristocracy! excuse me, dr. berger--that is going too far! you are a liberal, a radical, i know, but that doesn't make every countess a criminal. but if this is really your opinion of the witness, take out a summons for perjury at once!" "it may come to that," replied berger. the old man shook his head. "spare yourself the trouble," he said good-naturedly, "it will prove ineffectual, but you may certainly get yourself into great difficulties. why expose yourself, for the sake of such an abandoned creature, to an action for libel on the part of the countess and her servant? how abandoned she is, you have no suspicion! i have, thank heaven, concealed the worst of all from you, and you shall not learn it at my hands. you may read for yourself in the minutes. i do not wish to make a scene in the street. i was so enjoying this fine afternoon, and you have quite spoilt my good humour. well, good-bye. dr. berger, i will forgive you. you have allowed yourself to be carried away by your pity, but you are bestowing it upon an unworthy creature! the witness gave me the impression of being absolutely trustworthy, and i have stated so in the minutes! i considered myself bound in conscience to do so." "then you have a human life on your conscience!" berger blurted out. he had not meant to say anything so harsh, but the words escaped him involuntarily. the old man started and clasped his hands. his face twitched, and bright tears stood in his eyes. "what have i done to you?" he moaned. "why do you say such a horrible thing? why do you upset me? i have always considered you a good man, and now you behave like this to me!" berger stepped up to him and offered his hand. "forgive me," he said, "your intention is good and pure, i know. and just for that reason i implore you to reflect well before you let the minutes go out of your hands." "that is already done. i have just handed them to the chief justice." "and what did he say?" "nothing, what should he say? certainly he too seemed to be put out about something, for when i was about to enter on a brief discourse, he dismissed me a little abruptly." "but it is open to you to demand the minutes back, and examine the witness again. keep a sterner eye upon her, and the contradictions in which she gets involved will certainly become evident to you. at her first examination she could only say the best things of victorine lippert, at the trial she had lost her memory, and now of a sudden nothing is too bad." "oh, you barristers!" cried the judge. "how you twist everything! the kind-hearted creature wanted to save victorine lippert and pity moved her to lie at first: she has just openly and repentantly confessed that she did. but at the trial, before the crucifix, before the judges, her courage left her. she was silent, because like a good and chaste girl, she could not bring herself to speak before a crowd of people of all those repulsive details. you see, everything is explained. you are talking in vain." "in vain!" berger sighed profoundly. "good-bye," he said turning to go. but after he had gone a few steps, hoche called after him. the old man's eyes were full of tears. "you are angry with me?" he said. "no." "well, you have no reason to be angry, though i have--but i forgive you. by what you said you might easily have made me unhappy if the case had not been so clear. certainly i am upset now. to-morrow is christmas eve; my children and grand-children will come and bring me presents, and i shall give them presents, and i shall think all the time: hoche, what a frightful thing if you were a murderer! you will take back your words, won't you? i am no murderer, am i?" berger looked at the childish old man. "o tragicomedy of life!" he thought, but added aloud: "no, herr hoche, you are no murderer." in the evening he went to see sendlingen and look over the minutes which he too had the right of disputing. he would have been disconsolate enough if he had not already known their contents; as it was the extraordinary tone of the document cheered him a little. the 'wise young man' was perhaps himself an author, or at least had certainly read a great many cheap novels; the style in which he had reproduced the servant girl's imaginations was, in the worst sense of the word "fine!" how this lessened the danger of the contents was shown especially, by that worst fact of all which hoche could not bring himself to pronounce, and which was of such monstrous baseness that the faith of even the most vapid of judges must have been shaken in all the rest. "that is quite harmless," said berger. "more than that, these monstrous lies are just the one bit of luck in all our misfortunes." "certainly!" sendlingen agreed. "but we must not count too much upon them. the examining judge may not believe everything, but he will certainly not discredit everything. it could not be expected after hoche's enthusiastic advocacy of the witness' credibility." "and yet these minutes must be sent off. would it not be possible to hand over the inquiry to some one else?" "impossible, or i would have done so yesterday. either i or hoche--the charge of the supreme court is clear enough! and _i_ could not do it! it seemed to me mean and cowardly, treacherous and paltry, to break my judge's oath, trusting to the silence of the three people who beside me know the secret, trusting moreover never to have to undergo punishment for my offence. to this consideration it seemed to me that every other must give way." berger was silent. "would it not be possible to take out a summons for perjury?" he resumed. "no," cried sendlingen, "it would be an utterly useless delay! success in the present position of things is not to be hoped for." berger bowed his head. "then justice will suffer once again," he said in deep distress. "i will not reproach you. when i put myself in your place--i cannot trust myself to say that i should have done the same. i only presume i should, but this one thing i do know, that in accordance with your whole nature you have acted rightly. still, ever since the moment that i spoke to hoche, i cannot silence a tormenting question. ought fidelity to the law be stronger than fidelity to justice? you would not undertake the inquiry because a father may not take part in an examination conducted against his child, but were you justified in handing it over to a man who was no longer in a condition to find out the truth, to fulfil his duty? has not justice suffered at your hands by your respect for the law, that justice, i mean, which speaks aloud in the heart of every man?" sendlingen was staring gloomily at the floor. then he raised his eyes and looked his friend full in the face. the expression of his countenance, the tone of his voice became almost solemn. "i have fought out for myself an answer to this question. i may not tell you what it is; but one thing i can solemnly swear: this outraged justice to which you refer will receive the expiation which is its due." chapter x. christmas was past, new year had come, the year , one of the most melancholy that the austrian empire had ever known. the atmosphere was more charged than ever, coercion more and more severe, the confederacy between the authorities of church and state closer and closer. melancholy reports alarmed the minds of peaceful citizens: the italian provinces were in a state of ferment, a conspiracy was discovered in hungary, and a secret league of the slavs at prague. how strong or how weak these occult endeavours against the authority and peace of the state might be, no one knew. one thing only was manifest: the severity with which they were treated; and perhaps in this severity lay the greatest danger of all. it was the old sad story that so often repeats itself in the life of nations, and was then appearing in a new shape; tyranny had called forth a counter-tyranny and this, in its turn, a fresh tyranny. the police had much to do everywhere, and in some districts the courts of justice too. one of the greatest of the political investigations had, since christmas , devolved upon the court at bolosch. the middle classes of this manufacturing town were exclusively germans, the working-classes principally slavs. it was among these latter that the police believed they had discovered the traces of a highly treasonable movement. about thirty workmen were arrested and handed over to justice. sendlingen, assisted by dernegg, personally conducted the investigation. he had made the same selection in all the political arrangements of the last few years, although he knew that any other would have been more acceptable to the authorities. certainly neither he nor dernegg were liberals--much less radicals--who sympathised with revolution and revolutionaries. on the contrary both these aristocrats had thoroughly conservative inclinations, at all events in that good sense of the word which was then and is now so little understood in austria, and is so seldom given practical effect. they were, moreover, entirely honourable and independent judges. but there was a prejudice in those days against men of unyielding character, especially in the case of political trials. there was an opinion that "pedantry" was out of place where the interests of the state were at stake. sendlingen, on the other hand, was convinced that a political investigation should not be conducted differently from any other, and it was precisely in this inquisition into the conduct of the workmen that he manifested the greatest zeal, but at the same time the most complete impartiality. divers reasons had determined him to devote all his energy to the case. the diversion of his thoughts from his own misery did him good: the ceaseless work deadened the painful suspense in which he was awaiting the decision from vienna. moreover his knowledge of men and things had predisposed him to believe that these poor rough fellows had not so much deserved punishment as pity, and after a few days he was convinced of the justice of this supposition. these raftsmen and weavers and smiths who were all utterly ignorant, who had never been inside a school, who scarcely knew a prayer save the lord's prayer, who dragged on existence in cheerless wretchedness, were perhaps more justified in their mute impeachment of the body politic, than deserving of the accusations brought against them. they did not go to confession, they often sang songs that had stuck in their minds since , and some of them had, in public houses and factories, delivered speeches on the injustice of the economy of the world and state as it was reflected in their unhappy brains. this was all; and this did not make them enemies of the state or of the emperor. on the contrary, the record of their examination nearly always testified the opinion: "the only misfortune was that the young emperor knew nothing of their condition, otherwise he would help them." sendlingen's noble heart was contracted with pity, whenever he heard such utterances. and these men he was to convict of high treason! no! not an instant longer than was absolutely necessary should they remain away from their families and trades. on the feast of the epiphany sendlingen was sitting in his chambers examining a raftsman, an elderly man of herculean build with a heavy, sullen face, covered with long straggling, iron-grey hair; johannes novyrok was his name. the police had indicated him as particularly dangerous, but he did not prove to be worse than the rest. "why don't you go to confession?" asked sendlingen finally when all the other grounds of suspicion had been discussed. "excuse me, my lord," respectfully answered the man in czech. "but do you go?" sendlingen looked embarrassed and was about to sharply reprove him for his impertinent question, but a look at the man's face disarmed him. there was neither impertinence nor insolence written there, but rather a painful look of anxiety and yearning that strangely affected sendlingen. "why?" he asked. "because i might be able to regulate my conduct by yours," replied the raftsman. "you see, my lord, i differ from my brethren. people such as we, they think, have no time to sin, much less to confess. the god there used to be, must surely be dead, they say, otherwise there would be more justice in the world; and if he is still alive, he knows well enough that anyhow we have got hell on this earth and will not suffer us to be racked and roasted by devils in the next world. but i have never agreed with such sentiments; they strike me as being silly and when my mates say: rich people have a good time of it, let them go to confession,--why, its arrant nonsense. for i don't believe that any one on earth has a good time of it, not even the rich, but that everybody has their trouble and torment. and therefore i should very much like to hear what a wise and good man, who must understand these things much better than i do, has to say to it all. it might meet my case. and i happen to have particular confidence in you. in the first place because you're better and wiser than most men, so at least says every one in the town, and this can't be either hypocrisy or flattery, because they say so behind your back. but i further want to hear your opinion, because i know for certain that you have an aching heart and plenty of trouble." "how do you know that?" novyrok glanced at the short-hand clerk sitting near sendlingen and who was manifestly highly tickled at the simplicity of this ignorant workman. "i could only tell you," he said shyly, "if you were to send that young man out of the room. it is no secret, but such fledglings don't understand life yet." the young clerk was much astonished when sendlingen actually made a sign to him to withdraw. "thank you," said the raftsman after the door was shut "well, how i know of your trouble? in the first place one can read it in your face, and secondly i saw you one stormy night--it may be eight weeks ago--wandering about the streets by yourself. you went down to the river; i was watchman on a raft at the time and i saw you plainly. there were tears running down your cheeks, but even if your eyes had been dry--well no one goes roaming alone and at random on such a night, unless he is in great trouble." sendlingen bowed his head lower over the papers before him. novyrok continued: "an hour later, your friend brought you into our inn whither i had come in the meanwhile after my mate had relieved me of the watch. you were unconscious. i helped to carry you and take you home.... i don't tell you this in the hope that you may punish me less than i deserve, but just that i may say to you: you too, my lord, know what suffering is--do you find the thought of god comforting, and what do you think of confession?" sendlingen made no reply; the recollection of that most fatal night of his existence and the solemn question of the poor fellow, had deeply moved him. "you must have experienced something, novyrok," he said at length, "that has shaken your faith." "something, my lord? alas, everything!--alas, my whole life! i don't believe there are many people to whom the world is a happy place, but such men as i should never have been born at all. i have never known father or mother, i came into the world in a foundling hospital on a sylvester's eve some fifty years ago--the exact date i don't know--and that's why they called me 'novyrok' (new-year). i had to suffer a great deal because of my birth; it is beyond all belief how i was knocked about as a boy and youth among strangers--even a dog knows its mother but i did not. and therefore one thing very soon became clear to me: many disgraceful things happen on this earth, but the most disgraceful thing of all is to bring children into the world in this way. don't you think so, my lord?" sendlingen did not answer. "and i acted accordingly," continued novyrok, "and had no love-affair, though i had to put great restraint upon myself. i don't know whether virtue is easy to rich people; to the poor it is very bitter. it was not until i became steersman of a raft and was earning four gulden a week that i married an honest girl, a laundress, and she bore me a daughter. that was a bright time, my lord, but it didn't last long. my wife began to get sickly and couldn't any longer earn any thing; we got into want, although i honestly did my utmost and often, after the raft was brought to, i chopped wood or stacked coal all night through when i got the chance. well, however poorly we had to live, we did manage to live; things didn't get really bad till she died. my mates advised me then to give the care of my child to other people--and go as a raftsman to foreign parts, on a big river, the elbe or the danube: 'wages,' they said, 'are twice as much there and you, as an able raftsman, can't help getting on.' but i hadn't got it in my heart to leave my little daughter. besides i was anxious about her; to be sure she was only just thirteen, and a good, honest child, but she promised to be very nice-looking. if you go away, i said to myself, you may perhaps stay away for many years, and there are plenty of men in this world without a conscience, and temptation is great! so i stayed, and so as not to be separated from her even for a week, i gave up being a raftsman and became a workman at a foundry. but i was awkward at the work, the wages were pitiful, and though my daughter, poor darling, stitched her eyes out of her head, we were more often hungry than full. i frequently complained, not to her, but to others, and cursed my wretched existence--i was a fool! for i was happy in those days; i did my duty to my child." novyrok paused. sendlingen sighed deeply. "and then?" he asked. "then, my lord," continued the raftsman, "then came the dark hour, when i yielded to my folly and selfishness. maybe i am too hard on myself in saying this, for i thought more of my child's welfare than my own, and many people thought what i did reasonable. but otherwise i must accuse him above, and before i do that i would rather accuse myself. but i will tell you what happened in a few words. a former mate of mine who was working at the salt shipping trade on the traun, persuaded me to go with him, just for one summer, and the high wages tempted me. my girl was sixteen at that time; she was like a rose, my lord, to look at. but before i went i told her my story, where i was born and who my mother very likely was, and i said to her: 'live honestly, my girl, or when i come back in the autumn i will strike you dead, and then jump into the deepest part of the river.' she cried and swore to me she'd be good. but when i came back in the autumn----" he sobbed. it was some time before he added in a hollow voice: "hanka was my daughter's name. perhaps you remember the case, my lord. it took place in this house. certainly it's a long while ago; it will be seven years next spring." "hanka novyrok," sendlingen laid his hand on his forehead. "i remember!" he then said. "that was the name of the girl who--who died in her cell during her imprisonment upon trial." "she hanged herself," said novyrok, sepulchrally. "it happened in the night; the next morning she was to have come before the judges. she had murdered her child." there was a very long silence after this. novyrok then resumed: "you didn't examine me about the case, you would have understood me. the other judge before whom i was taken didn't understand me when i said: 'this is a controversy between me and him up above, for either he is at fault or i am.' the judge at first thought that grief had turned my head, but when he understood what i said, he abused me roundly and called me a blasphemer. but i am not that. i believe in him. i do not blaspheme him, only i want to know how i stand with him. it would be the greatest kindness to me, my lord, if you could decide for me." "poor fellow," said sendlingen, "don't torment yourself any more about it; such things nobody can decide." novyrok shook his head with a sigh. "a man like you ought to be able to make it out," he said, "although i can see that it is not easy. for look here--how does the case stand? a wretched blackguard, a linendraper for whom she used to sew, seduced her in my absence. if i had stayed here, it would not have happened. when i came back i learnt nothing about it, she hid it from me out of fear of what i had said to her at parting, and that was the reason why she killed her child, yes, and herself too in the end. for i am convinced that it was not the fear of punishment that drove her to death, but the fear of seeing me again, and no doubt, she also wished to spare me the disgrace of that hour. now, my lord, all this----" they were interrupted. a messenger brought in a letter which had just arrived. sendlingen recognised the writing of the count, his brother-in-law, who was a judge of the supreme court. he laid the letter unopened on the table; very likely belated new-year's wishes, he thought. "go on!" he said to the accused. "well, my lord, all this seems to tell against me, but it might be turned against him too. i might say to him: 'wasn't i obliged to try and keep her from sin by using the strongest words? and why didst thou not watch over her when i was far away; hanka was thy child too, and not only mine! and if thou wouldst not do this, why didst thou suffer us two to be born? thou wilt make reparation, sayst thou, in thy heaven? well, no doubt it is very beautiful, but perhaps it is not so beautiful that we shall think ourselves sufficiently compensated.' you see, my lord, i might talk like this--but if i were to begin. he too would not be silent, and with a single question he could crush me. 'why did you go away?' he might ask me. 'why did you not do your duty to your child? i, o fool, have untold children; you had only this one to whom you were nearest. you say in your defence that you did not act altogether selfishly, that you wanted to better her condition as well. may be, but you did think of _your own_ condition, _of yourself_ as well, and that a father may not do! i warned you by your own life, and by causing your conscience and presentiments to speak to you--why did you not obey me? besides you would not have starved here?' you see, my lord, he might talk to me in this way and he would be right, for a father may not think of himself for one instant where his child's welfare is concerned. isn't that so? "yes, that is so!" answered sendlingen solemnly. "well, that is why i sometimes think: you should certainly go to confession! what do you advise, my lord?" this time, too, sendlingen could find no relevant answer, much as he tried to seek the right words of consolation for this troubled heart. he strove to lessen his sense of guilt, that sensitive feeling which had so deeply moved him, and finally assured him also of a speedy release. but novyrok's face remained clouded; the one thing which he had wished to hear, a decision of his singular "controversy" with "him," he had to do without, and when sendlingen rang for the turnkey to remove the prisoner, the latter expressed his gratitude for "his lordship's friendliness" but not for any comfort received. not until he had departed did sendlingen take up his brother-in-law's letter, which he meant hastily to run through. but after a few lines he grew more attentive and his looks became overcast. "and this too," he muttered, after he had read to the end, and his head sank heavily on his breast. the count informed him, after a few introductory lines, of the purport of a conversation he had just had with the minister of justice. "you know his opinion," said the letter, "he honestly desires your welfare, and a better proof of this than your appointment to pfalicz he could not have given you. all the more pained, nay angered, is he at your obstinate disregard of his wishes. he told you in plain language that he did not desire you and dernegg to take part in any political investigations. you have none the less observed the same arrangement in the present investigation against the workmen. i warn you, victor, not for the first time, but for the last. you are trifling with your future; far more important people than chief judges, however able, are now being sent to the right-about in austria. the anger of the minister is all the greater, because your defiance this time is notorious. scarcely a fortnight ago, the supreme court instructed you to undertake the brief examination of a witness; you handed the matter over to hoche and excused yourself on the plea of the pressure of your regular work; and yet this work now suddenly allows you personally to conduct a complicated inquiry against some three dozen workmen." the letter continued in this strain at great length and concluded thus: "i implore you to assign the inquiry to werner and to telegraph me to this effect to-day. if this is not done, you will tomorrow receive a telegram from the minister commanding you to do so. and if you don't obey then, the consequences will be at once fatal to you. you know that i am no lover of the melodramatic, and you will therefore weigh well what i have said." his brother-in-law--and sendlingen knew it--certainly never affected a melodramatic tone, and often as he had warned him, he had never before written in such a key. what should he do? it was against his conscience to submit and leave these poor fellows to their fate; but might he concern himself more about men who were strangers to him, than about the wellbeing of his own child? if he did not yield, would he not perhaps be suddenly removed from his office, and just at the moment when his unhappy daughter most of all required his help? he went to his residence in a state of grievous interior conflict, impotently drawn from one resolve to another. he sighed with relief when berger entered; his shrewd, discreet friend could not have come at a more opportune moment. but he, too, found it difficult to hit upon the right counsel, or at least, to put it into words. "don't let us confuse ourselves, victor," he said at length. "first of all, you know as well as i do, that the minister has no right to put such a command upon you. you are responsible to him that every trial in your court shall be conducted with the proper formalities; the power to arrange for this is in your hands. and therefore they dare not seriously punish your insistence on your manifest right. dismissal on such a pretext is improbable and almost inconceivable, especially when it is a question of a man of your name and services." "but it is possible." "anything is possible in these days," berger was obliged to admit. "but ought this remote possibility to mislead you? you would certainly not hesitate a moment, if consideration for your child did not fetter you. should this consideration be more authoritative than every other? in my opinion, no!" "because you cannot understand my feelings!" sendlingen vehemently interposed. "a father may not think of himself when his child's welfare is concerned. the voice of nature speaks thus in the breast of every man, even the roughest, and should it be silent in me?" "my poor friend," said berger, "in your heart, too, it has surely spoken loud enough. and yet, so far, you have not hesitated for a moment to fulfil your duty as a judge when it came into conflict with your inclination. you would not preside at the trial, you would not conduct the examination. the struggle is entering on a new phase, you cannot act differently now." "i must! i cannot help these poor people--besides werner himself will hardly be able to find them guilty. and the cases are not parallel; i should have broken my oath if i had presided at the trial: i do not break it if i obey the minister's command." "that is true," retorted berger. "but i can only say: seek some other consolation, victor,--this is unworthy of you! for you have always been, like me, of the opinion that it is every man's duty to protect the right, and prevent wrong, so long as there is breath in his body! if i admonish you, it is not from any fanatical love of justice, but from friendship for you, and because i know you as well as one man can ever know another. your mind could endure anything, even the most grievous suffering, anything save one thing: the consciousness of having done an injustice however slight. if you submit, and if these men are condemned even to a few years' imprisonment, their fate would prey upon your mind as murder would on any one else. this i know, and i would warn you against it as strongly as i can.... let us look at the worst that could happen, the scarcely conceivable prospect of your dismissal. what serious effect could this have upon the fate of your child? you perhaps cling to the hope of yourself imparting to her the result of the appeal; that is no light matter, but it is not so grave as the quiet of your conscience. it can have no other effect. if the purport of the decision is a brief imprisonment, you could have no further influence upon her destiny, whether you were in office or not; she would be taken to some criminal prison, and you would have to wait till her term of imprisonment was over before you could care for her. if the terms of the decision are imprisonment for life, or death (you see, i will not be so cowardly as not to face the worst), the only course left open to you is, to discover all to the emperor and implore his pardon for your child. is there anything else to be done?" sendlingen was silent. "there is no other means of escape. and if it comes to this, if you have to sue for her pardon, it will assuredly be granted you, whether you are in office or not. it will be granted you on the score of humanity, of your services and of your family. it is inconceivable that this act of grace should be affected by the fact that you had just previously had a dispute with the minister of justice. it is against reason, still more against sentiment. the young prince is of a chivalrous disposition." "that he is!" replied sendlingen. "and it is not this consideration that makes me hesitate, i had hardly thought of it. it was quite another idea.... thank you, george," he added. "let us decide tomorrow, let us sleep upon it." he said this with such a bitter, despairing smile, that his friend was cut to the heart. the next morning when berger was sitting in his chambers engaged upon some pressing work, the door was suddenly flung open and sendlingen's servant franz entered. berger started to his feet and could scarcely bring himself to ask whether any calamity had occurred. "very likely it is a calamity," replied the old man, continuing in his peculiar fashion of speech which had become so much a habit with him, that he could never get out of it. "we were taken ill again in chambers, very likely we fell down several times as before, we came home deadly pale but did not send in for the doctor, but for you, sir." berger started at once, franz following behind him. as they went along, berger fancied he heard a sob. he looked round: there were tears in the old servant's eyes. when they got into the residence, berger turned to him and said: "be a man, franz." then the old fellow could contain himself no longer; bright tears coursed down his cheeks. "dr. berger," he stammered. he had bent over his hand and kissed it before berger could prevent him. "have pity on me! tell me what has been going on the last two months! we often speak to brigitta about it--i am told nothing! why? we know that this silence is killing me. i could long ago have learned it by listening and spying, but franz doesn't do that sort of thing. if you cannot tell me, at least put in a word for me. surely we do not want to kill me!" berger laid his hand on his shoulder. "be calm, franz, we have all heavy burdens to bear." he then went into sendlingen's room. "the minister's telegram?" he asked. "worse!" "the decision? what is the result?" the question was superfluous; the result was plainly enough written in sendlingen's livid, distorted features. berger, trembling in every limb, seized the fatal paper that lay on the table. "horrible!" he groaned--it was a sentence of death. he forced himself to read the motives given; they were briefly enough put. the supreme court had rejected the appeal to nullify the trial, although the credibility of the servant-girl had appeared doubtful enough to it, too. at the same time, the decision continued, there was no reason for ordering a new trial, as the guilt of the accused was manifest without any of the evidence of this witness. the supreme court had gone through this without noticing either her recent statement incriminating the accused, nor her first favorable evidence. the countess' depositions alone, therefore, must determine victorine's conduct before the deed, and her motives for the deed. these seemed sufficient to the supreme court, not to alter the sentence of death. for a long time berger held the paper in his hands as if stunned; at length he went over to his unhappy friend, laid his arms around his neck and gently lifted his face up towards him. but when he looked into that face, the courage to say a word of consolation left him. he stepped to the window and stood there for, perhaps, half an hour. then he said softly, "i will come back this evening," and left the room. towards evening he received a few lines from his friend. sendlingen asked him not to come till to-morrow; by that time he hoped to have recovered sufficient composure to discuss quietly the next steps to be taken. he was of opinion that berger should address a petition for pardon to the emperor, and asked him to draw up a sketch of it. berger read of this request with astonishment. he would certainly have lodged a petition for pardon, even if victorine lippert had been simply his client and not sendlingen's daughter. but he would have done it more from a sense of duty than in the hope of success. that this hope was slight, he well knew. the petition would have to take its course through the supreme court, and it was in the nature of the case that the recommendation of the highest tribunal would be authoritative with the emperor; exceptions had occurred, but their number was assuredly not sufficient to justify any confident hopes. all this sendlingen must know as well as himself. why, therefore, did he wish that the attempt should be made? in this desperate state of things, there was but one course that promised salvation; a personal audience with the emperor. why did sendlingen hesitate to choose this course? berger made up his mind to lay all this strongly before him, and when on the next day he rang the bell of the residence, he was determined not to leave him until he had induced him to take this step. "we are still in chambers," announced franz. "we want you to wait here a little. we have been examining workmen again since this morning early, and have hardly allowed ourselves ten minutes for food." "so he has none the less resolved to go on with that?" said berger. perhaps, he thought to himself, the telegram has not arrived yet. "none the less resolved?" cried franz. "we have perhaps seldom worked away with such resolution and baron dernegg, too, was dictating to-day--i say it with all respect--like one possessed." berger turned to go. it occurred to him that he had not seen victorine for a week, and he thought he would use the interval by visiting her. "i shall be back in an hour," he said to franz. "in the meanwhile i have something to do in the prison." "in the prison?" the old man's face twitched, he seized berger's arm and drew him back into the lobby, shutting the door. "forgive me, dr. berger. my heart is so full.... you are going to her--are you not? to our poor young lady, to victorine?" "what? since when?" ... "do i know it?" interrupted franz. "since yesterday evening!" and with a strange mixture of pride and despair he went on: "we told me everything!... oh, it is terrible. but we know what i am worth! my poor master! ah! i couldn't sleep all night for sorrow.... but we shall see that we are not deceived in me.... i have a favour to ask, dr. berger. brigitta has the privilege naturally, because she is a woman and a member of the 'women's society.' but i, what can i appeal to? certainly i have in a way, been in the law for twenty-five years, and understand more of these things than many a young fledgling who struts about in legal toggery, but--a lawyer i certainly am not--so, i suppose, dr. berger, it is unfortunately impossible?" "what? that you should pay her a visit? certainly it is impossible, and if you play any pranks of that kind----" "oh! dr. berger," said the old man imploringly. "i did but ask your advice because my heart is literally bursting. well, if this is impossible, i have another favour, and this you will do me! greet our poor young lady from me! thus, with these words: 'old franz sends fräulein victorine his best wishes from all his heart--and begs her not to despair.... and--and wants to remind her that the god above is still living.'" berger could scarcely understand his last words for the tears that choked, the old man's voice. he himself was moved; as yesterday, so to-day, franz's tears strongly affected him, for the old servant was not particularly soft by nature. "yes, yes, franz," he promised, and then betook himself to the prison. he resolved to continue to be quite candid with victorine, but not to mention the result of the appeal by a single word. but when he entered her cell, she came joyfully to meet him, her eyes glistening with tears. "how shall i thank you?" she cried much moved trying to take his hand. he fell back a step. "thank me?--what for?" "oh, i know," she said softly with a look at the door as if an eavesdropper might have been there. "my father told me that it was not official yet. he hurried to me this morning as soon as he had received the news, but it is still only private information, and for the present i must tell nobody! whom else have i to thank but you?" "what?" he asked. and he added with an unsteady voice: "i have not seen him for the last few days. has he had news from vienna?" "to be sure! the supreme court has pardoned me. my imprisonment during trial is to be considered as punishment. in a few weeks i shall be quite free." berger felt all the blood rush to his heart. "quite free!" he repeated faintly. "in a few weeks!" and at the same time he was tortured by the importunate question: "great god! he has surely gone mad? how could he do this? what is his object?" "merciful heaven!" she cried. "how pale you have turned. how sombre you look! merciful heaven! you have not received other news? he has surely not been deceived? oh, if i had to die after all!--now--now----" she staggered. berger took her hand and made her sink down on to the nearest chair. "i have no other news," he said as firmly as possible. "it came upon me with such a shock! i am surprised that he has not yet told me anything. but then, of course, he did not hear of it till to-day. if he has told you, you can, of course, look upon it as certain." "may i not?" she sighed with relief. "i need not tremble any more? oh, how you frightened me!" "forgive me--calm yourself!" he took up his hat again. "are you going already? and i have not yet half thanked you!" "don't mention it!" he said curtly, parrying her remark. "au revoir," he added with more friendliness, and leaving the cell, hurried to sendlingen's residence. he had just come in; berger approached him in great excitement. "i have just been to see victorine," he began. "how could you tell this untruth? how _could_ you?" sendlingen cast down his eyes. "i had to do it. i was afraid that otherwise the news of her condemnation might reach her." "no," cried berger. "forgive my vehemence," he then continued. "i have reason for it. such empty pretexts are unworthy of you and me. you yourself see to the regulation of the courts and the prison. the accused never hear their sentence until they are officially informed." "you do me an injustice," replied sendlingen, his voice still trembling, and it was not till he went on that he recovered himself: "i have no particular reasons that i ought or want to hide from you. i told her in an ebullition of feeling that i can hardly account for to myself. when i saw her to-day she was much sadder, much more hopeless, than has been usual with her lately. she certainly had a presentiment--and i, in my flurry at this, feared that some report might already have reached her. such a thing, in spite of all regulations, is not inconceivable; chance often plays strange pranks. in my eager desire to comfort her, those words escaped me. the exultation with which she received them, robbed me of the courage to lessen their favourable import afterwards! that is all!" berger looked down silently for a while. "i will not reproach you," he then resumed. "how fatal this imprudence may prove, you can see as well as i. she was prepared for the worst and therefore anything not so bad, might perhaps have seemed like a favour of heaven. now she is expecting the best, and whatever may be obtained for her by way of grace, it will certainly dishearten and dispirit her. but there is no help for it now! let us talk of what we can help! you want me to lodge a petition for pardon? it would be labour in vain!" "well," said sendlingen hesitatingly, "in some cases the emperor has revoked the sentence of death in spite of the decision of the supreme court." "yes, but we dared not build on this hope if we had no other. fortunately this is the case. you must go to vienna; only on your personal intercession is the pardon a _certainty_. and my petition could at best only get the sentence commuted to imprisonment for life, whereas your prayer would obtain a shorter imprisonment and, after a few years, remission of the remainder. you must go to-morrow, victor--there is no time to lose." sendlingen turned away without a word. "how am i to understand this?" cried berger, anxiously approaching him. "you _will_ not?" the poor wretch groaned aloud, "i will----" he exclaimed. "but later on--later on----. as soon as your petition has been dispatched." "but why?" cried berger. "i have hitherto appreciated and sympathised with your every sentiment and act, but this delay strikes me as being unreasonable, unpardonable. i would spare you if less depended on the cast, but as it is, i will speak out. it is unmanly, it is----" he paused. "spare me having to say this to you, to you who were always so brave and resolute. there is no time to lose, i repeat. who will vouch that it may not then be too late? if my petition is rejected, the court will at the same time order the sentence to be carried out. do you know so certainly that you will still be here then, that you will still have time then to hurry to vienna? think! think!" berger had been talking excitedly and paused out of breath. but he was resolved not to yield and was about to begin again when sendlingen said: "you have convinced me; i will go to vienna sooner, even before the dispatch of your petition." "then you still insist that i shall proceed with it?" "please; it can do no harm; it may do good. and at least we shall gain time by it. i cannot undertake the journey to vienna until the inquiry against the working men is ended. in this, too, there is not a day to be lost; neither dernegg nor i know whether there is not an order on the road that may in some way make us harmless. i trust we shall by that time have succeeded in proving that no punishable offence has been committed. i have received the minister's telegram to-day, and at once replied that the inquiry was so complicated, and had already proceeded so far, that a change in the examining judges would be impracticable." "i am glad that you have followed my advice," said berger. "and in spite of these aggravated conditions! you hesitated as long as the decision was not known to you, as long as you simply feared it, and when your fears were confirmed, you were brave again and did not hesitate for an instant in doing your duty as an honourable man! victor, few people would have done the like!" he reached out his hand to say good-bye. "you have now taken old franz into your confidence?" he asked, "another participator in the secret--it would have been well to consider it first! but i will not begin to scold again. adieu!" chapter xi. more than two weeks had passed since this last interview. january of was drawing to a close and still there seemed no likelihood of an end to the investigations against the workmen. berger observed this with great anxiety. he had long since presented the petition for pardon: the time was drawing near when it would be laid before the emperor, and yet, whenever the subject of the journey to vienna arose, sendlingen had some reason or motive for urging that he could not leave and that there was still time. when he made such a remark berger looked at him searchingly, as if he were trying to read his inmost soul and then departed sadly, shaking his head. every day sendlingen's conduct seemed to him more enigmatical and unnatural. for this was the one means of saving victorine's life! if he still hesitated it could only proceed from fear of the agony of the moment, from cowardice! but as often as berger might and did say this to himself, he did not succeed in convincing himself. for did not sendlingen at the same time evince in another matter and where the welfare and sufferings of strangers to him were concerned, a moral courage rarely found in this country and under this government. the conflict between sendlingen and the minister of justice had gradually assumed a very singular character; it had become a "thoroughly austrian business," as berger sometimes thought with the bitter smile of a patriot. to sendlingen's respectful but decided answer, the minister had replied as rudely and laconically as possible, commanding him to hand over the investigation forthwith to werner. no one could now doubt any longer that a further refusal would prove dangerous, and sendlingen sent his rejoinder,--a brief dignified protest against this unjustifiable encroachment--with the feeling that he had at the same time undersigned his own dismissal. and indeed in any other country a violent solution would have been the only one conceivable; but here it was different. certainly a severe censure from the minister followed and he talked of "further steps" to be taken, but the lightning that one might have expected after this thunder, did not follow. the same result, was, however, sought by circuitous means, attempts were made to weary the two judges and to put them out of conceit with the case. when they proposed to the court that the case against one of the accused might be discontinued, the crown-advocate promptly opposed it and called the supreme court to his assistance. with all that, the police were feverishly busy and overwhelmed the two judges by repeatedly bringing forward new grounds of suspicion against the prisoners, and these had to be gone through however evidently worthless they might be at the first glance. there was not a single person attached to the law-courts with all their diversity of character, who did not follow the struggle of sendlingen for the independence of the judge's position, with sympathy, and the townspeople were unanimous in their enthusiastic admiration. this courageous steadfastness was all the more highly reckoned as it was visibly undermining his strength. his hair grew gray, his bearing less erect, and his face now almost always bore an expression of melancholy disquiet. people were not surprised at this; it must naturally deeply afflict this man who was so manifestly designed to attain the highest places in his profession, perhaps even to become the chief judge of the empire--to be daily and hourly threatened with dismissal. only the three participators in the secret, and berger in particular, knew that the unhappy man could scarcely endure any longer the torture of uncertainty about his child's fate. all the more energetic, therefore, were berger's attempts to put an end at least to this unnecessary torment but again and again he spoke in vain. this occurred too on the last day in january. sendlingen stood by his answer: "there is still time, the petition has not yet come into the emperor's hands," and berger was sorrowfully about to leave his chambers, when the door was suddenly flung open and herr von werner rushed in. "my lord," cried the old gentleman almost beside himself with joy and waving a large open letter in his hand like a flag, "i have just received this; this has just been handed to me. it means that i am appointed your successor, it is the decree." sendlingen turned pale. "i congratulate you," he said with difficulty. "when are you to take over the conduct of the courts?" "on the nd february," was the answer. "oh, how happy i am! and you i am sure will excuse me! why should the news distress you? you will in any case be leaving here at the end of february to----" he, stopped in embarrassment. "to go to pfalicz as chief justice of the higher court there," he continued hastily. "we will continue to believe so, to suppose the contrary would be nonsensical. you have annoyed the minister and he is taking a slight revenge--that is all! good-bye, gentlemen, i must hurry to my wife!" the old gentleman tripped away smiling contentedly. "that is plain enough," said sendlingen, after a pause, turning to his friend. "my successor is appointed without my being consulted: the decree is sent direct to him and not through me; more than that, i am not even informed at the same time, when i am to hand over the conduct of the courts to him. to the minister i am already a dead man! but what can it matter to me in my position? werner's communication only frightened me for a moment, while i feared that i had to surrender to him forthwith. but the nd february--that is three weeks hence. by that time _everything_ will be decided." two days later, on candlemas day, on which in some parts of catholic austria people still observe the custom of paying one another little attentions, sendlingen also received a present from the minister. the letter read thus: "you are to surrender the conduct of the courts on the nd february to the newly appointed chief justice, herr von werner. further instructions regarding yourself will be forwarded you in due course." the tone of this letter spoke plainly enough. for "further instructions" were unnecessary if the previous arrangement--his appointment to pfalicz--was adhered to. his dismissal was manifestly decreed. all the functionaries of the courts fell into the greatest state of excitement: who was safe if sendlingen fell? and wherever the news penetrated, it aroused sorrow and indignation. on the evening of the same day the most prominent men of the town met so as to arrange a fête to their chief justice before his departure. it was determined to present him with an address and to have a farewell banquet. berger, who had been at the meeting, left as soon as the resolution was arrived at, and hurried to sendlingen for he knew that his friend would need his consolation to-day most of all. but sendlingen was so calm that it struck berger as almost peculiar. "i have had time to get accustomed to these thoughts," he said. "how do you think of living now?" asked berger. "i shall move to gratz," replied sendlingen quickly; he had manifestly given utterance to a long-cherished resolve. "won't you be too lonely there?" objected berger. "why won't you go to vienna? by the inheritance from your wife, you are a rich man who does not require to select the pensionopolis on the mur on account of its cheapness. in vienna you have many friends, there you will have the greatest incitement to literary work, besides you may not altogether disappear from the surface. your career is only forcibly interrupted but not nearly ended. a change of system, or even a change in the members of the ministry, would bring you back into the service of the state, and, perhaps, to a higher position than the one you are now losing." "my mind is made up. brigitta is going to gratz in a few days to take a house and make all arrangements." they talked about other things, about the fête that had been arranged to-day. "i will accept the address," sendlingen explained, "but not the banquet. i have not the heart for it." berger vehemently opposed this resolution; he must force himself to put in an appearance at least for an hour; the fête had reference not only to himself personally, but to a sacred cause, the independence of judges. all this he unfolded with such warmth, that sendlingen at length promised that he would consider it. the next morning the vienna papers published the news of the measures taken with regard to sendlingen, which they had learnt by private telegrams. a severe censorship hampered the austrian press in those days; the papers had been obliged to accustom the public to read more between the lines than the lines themselves: and this time, too, they hit upon a safe method of criticism. as if by a preconcerted agreement, all the papers pronounced the news highly incredible; and that it was, moreover, wicked to attribute such conduct to the strict but just government which austria enjoyed. a severer condemnation than this defence of the government against "manifestly malicious reports" could not easily be imagined, and the public understood it as it was intended. in a moment, sendlingen's name was in every mouth, and the investigation against the workmen the talk of the day, first in the capital, soon throughout the whole country. a flood of telegrams and letters, inquiries and enthusiastic commendations, suddenly burst upon sendlingen. had there been room in his poor heart, in his weary tormented brain, for any lucid thought or feeling, he would now have been able, in the days of his disgrace, to have held up his head more proudly than ever. it was not saying too much when berger told him that a whole nation was now showing how highly it valued him. but he scarcely noticed it and continued, dark and hopeless, to do his duty and to drag on the sisyphus-task of his investigation in combat with both the police and the crown lawyers. suddenly those hindrances ceased. when sendlingen one morning entered his chambers soon after the news of his deposal had appeared in the papers, he for the first time, for weeks, found no information of the police on the table. that might be an accident, but when there was none the second day, he breathed again. the superintendent of police at bolosch was, the zealous servant of his masters; if he in twice twenty-four hours did not discover the slightest trace of high treason, there must be good reason for it. in the same way nothing more was heard from the crown-advocate. "they have almost lost courage in the face of the general indignation!" cried berger triumphantly. "franz has just told me that brigitta is to start the day after to-morrow for gratz. let her wait a few days, and so spare the old lady having to make the journey to pfalicz by the very round about way of gratz." "you cannot seriously hope that," said sendlingen turning away, and so berger went into brigitta's room later on to bid her good-bye. the old lady was eagerly reading a book which she hastily put on one side as he entered. "i am disturbing you," he said. "what are you studying so diligently?" "oh, a novel," she replied quickly. her eyes were red and she must have been crying a great deal lately. "i thought perhaps it was a description of gratz," said he jokingly. "it seems to me that you have a genuine fear of this weird city where life surges and swells so mightily!" and he attempted to remove her fears by telling her much of the quiet, narrow life of the town on the mur. while he was speaking, the book, which she had laid on her workbox, slid to the ground and he picked it up before she had time to bend down for it. it was a french grammar. "great heavens!" he cried in astonishment. "you are taking up the studies of your youth again, fräulein brigitta?" the old lady stood there speechless, her face crimson, as if she had been caught in a crime. "i have been told," she stammered, "that--that one can hardly get along there with only german." "in gratz?" berger could not help laughing heartily. "who has been playing this joke upon you? reassure yourself. you will get along with the french in gratz without any grammar." still laughing, he said good-bye and promised to visit her in gratz. meanwhile the excitement into which the press and the public were thrown by the "sendlingen incident" grew daily. in bolosch new proposals were constantly being made, to have the fête on a magnificent and uncommon scale. it did not satisfy the popular enthusiasm that the address to be presented was covered with thousands of signatures. a proposal was made in the town-council to call the principal street after sendlingen: some of the prominent men of the town wanted to collect subscriptions for a "sendlingen fund" whose revenue should be devoted to such officers of the state as, like sendlingen, had become the victims of their faithfulness to conviction; the gymnastic societies resolved upon a torch-light procession. the chairman of the committee arranging the festivities--he was the head of the first banking house of the town--was in genuine perplexity; he still did not know which acts of homage sendlingen would accept and he sought berger's interposition. "save me," implored the active banker. "people are pressing me and the chief justice is dumb. yesterday i hoped to get a definite answer from him but he broke off and talked of our business." "business? what business?" asked berger. "i am just doing a rather complicated piece of business for him," answered the banker. "i thought that you, his best friend, would have known about it. he is converting the austrian stock in which his property was hitherto invested, into french, english and dutch stock, and a small portion of it into ready money." "why?" asked berger in surprise. "he is going to stay in austria?" "so i asked," replied the banker, "and received an answer which i had, willy nilly, to take as pertinent. for he is hardly to be blamed, if after his experiences, his belief in the credit of the state has become a little shaky." berger could not help agreeing with this, and therefore did not refer to it in his talk with sendlingen. with regard to the fête he received a satisfactory answer. sendlingen without any further hesitation, accepted the banquet and even the torch-light procession. both were to take place on the st february, the last day of his term of office. all this was telegraphed to vienna and was bravely used by the papers. even in bolosch, they said, these melancholy reports, so humiliating to every austrian, were not seriously believed; how long would the government hesitate to contradict them? the demand was so universal, the excitement so great, that an official notice of a reassuring character was actually issued. the government, announced an official organ, had in no way interfered with the investigation; that this was evident, the present position of the inquiry, now without doubt near a close, sufficiently proved. with regard, however, to sendlingen's dismissal there was some "misunderstanding" in question. as so often before, in the case of the like oracular utterances from a similar source, everybody was now asking what this really meant. berger thought he had hit the mark and exultingly said to his friend: "hurrah! they have now entirely lost their courage! they are only temporising so as not to have to admit that public opinion has made an impression upon them." sendlingen shrugged his shoulders. "it is all one to me, george," he said. "now--that i can understand," replied berger warmly. "in a few months you will speak differently! when do you go to vienna?" sendlingen reflected. "on the seventeenth i should say," he at length replied hesitatingly. "that is to say if dernegg and i can really dismiss the workmen on the sixteenth as we hope to do." this hope was realised; on the th february , the workmen were released from prison. their first step related to sendlingen: in the name of all, johannes novyrok made a speech of thanks of which this was the peroration: "we know well what we ought to wish you in return for all you have done for us: good-luck and happiness for you and for all whom you love! but mere good wishes won't help you, and we can do nothing for you, although every man of us would willingly shed his blood for your sake, and as to praying, my lord, it is much the same thing--you may remember, perhaps, what i have already said to you on the subject. and so we can only say: think of us when you are in affliction of mind and you will certainly be cheered! you can say to yourself: 'i have lifted these people out of their misfortune and lessened their burden as much as i could,'--and you will breathe again. for i believe this is the best consolation that any man can have on this poor earth. god bless you! for you are noble and good, and what you do is well done, and sin and evil are far from you. a thousand thanks, my lord. farewell!" "farewell!" murmured sendlingen, his voice choking as he turned away. ... on the next day, the th february, sendlingen should have started by the morning train to vienna; he had solemnly promised berger to do so the evening before. the latter, therefore, was much alarmed when he accidentally heard, in the course of the afternoon, that sendlingen was still in chambers. he hastened to him. "why have you again put off going?" he asked impetuously. sendlingen had turned pale. "i have not been able to bring myself to it," he answered softly. "and you know what is at stake!" cried berger in great excitement, wiping the cold sweat from his forehead. "victor, this is cowardice!" "it is not," he replied as gently as before, but with the greatest determination. "if i had been a coward, i would long since have had the audience." berger looked at him in astonishment. "i do not understand you," he said. "it may be a sophism by which you are trying to lull your conscience, but it is my duty to rouse you. o victor!" he continued with passionate grief, "you can yourself imagine what it costs me to speak to you in this way. but i have no option." sendlingen was silent. "i will talk about it later," he said. "let me first tell you a piece of news that will interest you. i have received a letter from the minister this morning.... you were right about their 'courage.'" he handed the letter to his friend. "the minister reminds me that it is my duty, in consequence of the appointment made last november, to be in pfalicz on the morning of the st march to take over the conduct of the higher court there." "after all!" cried berger. "and how polite! do you see now that we liberals and our newspapers are some good? the minister has no other motive for beating a retreat." "perhaps this letter, which came at the same time, may throw some light on it," observed sendlingen taking up a letter as yet unopened. "it is from my brother-in-law. count karolberg!" he opened it and glanced at the first few lines. "true!" he exclaimed. "just listen." "you do not deserve your good fortune," he read, "and i myself was fully persuaded that you were lost. but it seems that the minister talked to us more sharply than he thought, and that from the first he meant nothing serious. that he kept you rather long in suspense, proved to be only a slight revenge which was perhaps permissible. he meant no harm; i feel myself in duty bound to say this to his credit." "and your brother-in-law is a clever man," cried berger, "and himself a judge! does he not understand that this very explanation tells most of all against the minister? oh, i always said that it was another thoroughly austrian----" a cry of pain interrupted him. "what is this?" cried sendlingen horror-struck and gazing in deadly pallor at the letter. berger took the letter out of his trembling hands, in the next instant he too changed colour. his eyes had lit upon the following passage. "when do you leave bolosch? i hope that the last duty that you have to do in your office, will not affect your soft heart too much. certainly it is always painful to order the execution of a woman, and especially such a young one, and perhaps you can leave the arrangements for the execution to your successor who fortunately is made of sterner stuff." the letter fell from berger's hands. "o victor----" he murmured. "don't say a word," sendlingen groaned; his voice sounded like a drowning man's. "no reproaches!--do you want to drive me mad." then he made a great effort over himself. "the warrant must have come already," he said, and he rang for the clerk and told him to bring all the papers that had arrived that day. the fatal document was really among them; it was a brief information to the court at bolosch stating that the emperor had rejected the petition for pardon lodged by counsel for the defence, and that he had confirmed the sentence of death. the execution, according to the custom then prevailing, was to be carried out in eight days. "i will not reproach you," said berger after he had glanced through the few lines. "but now you must act. you must telegraph at once to the imperial chancellery and ask for an audience for the day after tomorrow, the nineteenth, and to-morrow you must start for vienna!" "i will do so," said sendlingen softly. "you _must_ do it!" cried berger, "and i will see that you do. i will be back in the evening." when berger returned at nightfall, franz said to him in the lobby: "thank god, we are going to vienna after all!" and sendlingen himself corroborated this. "i have already received an answer; the audience is granted for the nineteenth. i have struggled severely with myself," he then added, and continued half aloud, in an unsteady voice, as if he were talking to himself; "i am a greater coward than i thought. however fixed my resolve was, my courage failed me--and so i must go to vienna." berger asked no further questions, he was content with the promise. chapter xii. the th february , was a clear, sunny day. at midday the snow melted, the air was mild; there seemed a breath of spring on the country through which the train sped along, bearing the unhappy man to vienna. but there was night in his heart, night before his eyes; he sat in the corner of his carriage with closed lids, and only when the train stopped, did he start up as from sleep, look out at the name of the station, and deeply sighing, fall back again into his melancholy brooding. was the train too slow for him? there were moments when he wished for the wings of a storm to carry him to his destination, and that the time which separated him from the decisive moment might have the speed of a storm. and in the next breath, he again dreaded this moment, so that every second of the day which separated him from it, seemed like a refreshing gift of grace. alas! he hardly knew himself what he should desire, what he should entreat, and one feeling only remained in his change of mood, despair remained and spread her dark shadow over his heart and brain. the train stopped again, this time at a larger station. there were many people on the platform, something extraordinary must have happened; they were crowding round the station-master who held a paper in his hand and appeared to be talking in the greatest excitement. the crowd only dispersed slowly as the train came in; lingeringly and in eager talk, the travellers approached the carriages. sendlingen looked out; the guard went up to the station-master who offered him the paper; it must have been a telegram. the man read it, fell back a step turning pale and cried out: "impossible!" upon which those standing around shrugged their shoulders. sendlingen saw and heard all this; but it did not penetrate his consciousness. "heldenberg," he said, murmuring the name of the station. "two hours more." the train steamed off, up a hilly country and therefore with diminished speed. but to the unhappy man it was again going too swiftly--for each turn of the wheels was dragging him further away from his child, for a sight of whose white face of suffering, he was suddenly seized with a feverish longing, his poor child, that now needed him most of all. "frightful!" he groaned aloud. his over-wrought imagination pictured how she had perhaps just received the news that she was to fall into the hangman's hands! it was possible that the sentence had passed through the court of records and been added to the rolls; some of the lawyers attached to the courts might have read it, or some of the clerks--if one of them should tell the governor, or the warders, if victorine should accidentally hear or it! "back!" he hissed, springing up. "i must go back." fortunately he was alone, otherwise his fellow travellers would have thought him mad. and there was something of madness in his eyes as he seized his portmanteau from the rack, and grasped the handle of the door as if to open it and spring from the train. the guard was just going along the foot-board of the carriages, the engine whistled, the train slackened, and in the distance the roofs of a station were visible. the guard looked in astonishment at the livid, distorted features of the traveller; this look restored sendlingen to his senses, and he sank back into his seat. "it is useless," he reflected. "i must go on to vienna." the train pulled up, "reichendorf! one minute's wait!" cried the guard. it was a small station, no one either got in or out; only an official in his red cap stood before the building. nevertheless, the wait extended somewhat beyond the allotted time. the guards were engaged in eager conversation with the official. sendlingen could at first hear every word. "there is no doubt about it!" said the official. "i arranged my apparatus so that i could hear it being telegraphed to pfalicz and bolosch. what a catastrophe." "and is the wound serious?" asked one of the guards. he was evidently a retired soldier, the old man's voice trembled as he put the question. "the accounts differ about that," was the answer. "great heavens! who would have thought such a thing possible in austria!" "oh! it can only have been an italian!" cried the old soldier. "i was ten years there and know the treacherous brood!" thus much sendlingen heard, but without rightly understanding, without asking himself what it might mean. more than that, the sound of the voices was painful to him as it disturbed his train of thought; he drew up the window so as to hear no more. and now another picture presented itself to him as the train sped on, but it was no brighter or more consoling. he was standing before his prince who had said to him: "it is frightful, i pity you, poor father, but i cannot help you! it is my duty to protect justice without respect of persons; i confirmed the sentence of death not because i knew nothing of her father, and supposed him a man of poor origin, but because she was guilty, by her own confession and the judges' verdict. shall i pardon her now because she is the daughter of an influential man of rank, because she is your daughter? is her guilt any the less for this, will this bring her child to life again? can you expect this of me, you, who are yourself a judge, bound by oath to judge both high and low with the same measure?" thus had the emperor spoken, and he had found no word to say against it--alas! no syllable of a word--and had gone home again. and it was a dark night--dark enough to conceal thieving and robbery or the blackest crime ever done by man--and he was creeping across the court-yard at home; creeping towards the little door that opened into the prison. "oh!" he groaned stretching out his hands as if to repel this vision, "not that!--not that!--and i am too cowardly to do it. i know--too cowardly! too cowardly!" once more the train stopped, this time at a larger station. sendlingen did not look out, otherwise he must have noticed that this was some extraordinary news that was flying through the land and filling all who heard it with horror. pale and excited the crowd was thronging in the greatest confusion; all seemed to look upon what had happened as a common misfortune. some were shouting, others staring as if paralyzed by fear, others again, the majority, were impatiently asking one another for fresh details. "it was a shot!" screamed an old gray-headed man in a trembling voice, above the rest, before he got into the train. "so the telegram to the prefect says." "a shot!" the word passed from mouth to mouth and some wept aloud.' "no!" cried another, "it was a stab from a dagger, the general himself told me so." confused and unintelligible, the cries reached sendlingen's ears till they were drowned by the rush of the wheels, and again nothing was to be heard save the noise of the rolling train. and again his over-wrought imagination presented another picture. the emperor had heard his prayer and said: "i grant her her life, i will commute the punishment to imprisonment for life, for twenty years. more than this i dare not do; she would have died had she not been your daughter, but i dare not remit the punishment altogether, nor so far lessen it that she, a murderess, should suffer the same punishment as the daughter of a common man had she committed a serious theft." and to this too he had known of no answer, and had come home and had to tell his poor daughter that he had deceived her by lies. she had broken down under the blow, and had been taken with death in her heart to a criminal prison, and a few months later as he sat in his office and dignity at pfalicz, the news was brought him that she had died. "would this be justice?" cried a voice in his tortured breast. "can i suffer this? no, no! it would be my most grievous crime, more grievous than any other." the train had reached the last station before vienna, a suburb of the capital. here the throng was so dense, the turmoil so great, that sendlingen, in spite of his depression, started up and looked out. "some great misfortune or other must have happened," he thought, as he saw the pale faces and excited gestures around him. but so great was the constraining force of the spell in which his own misery held his thoughts, that it never penetrated his consciousness so as to ask what had happened. he leant back in his corner, and of the babel of voices outside only isolated, unintelligible sounds reached his ears. here the people were no longer disputing with what weapon that deed had been done which filled them with such deep horror. "it was a stab from a dagger," they all said, "driven with full force into the neck." their only dispute was as to the nationality of the malefactor. "it was a hungarian!" cried some. "a count. he did it out of revenge because his cousin was hanged." "that is a lie!" cried a man in hungarian costume. "a hungarian wouldn't do it--the hungarians are brave--the austrians are cowards--the blackguard was an austrian, a viennese!" "oho!" cried the excited crowd, and in the same instant twenty fists were clenched at the speaker so that he began to retire. "a lie! it was no viennese! on the contrary, a viennese came to the rescue!" "yes, a vienna citizen!" shouted others, "a butcher!" "was not the assassin an italian?" asked the guard of the train, and this was enough for ten others to yell: "it was a milanese--naturally!--they are the worst of the lot!" while from another corner of the platform there was a general cry: "it was a pole! a student! he belonged to a secret society and was chosen by lot!" two poles protested, the hungarian and an italian joined them; bad language flew all over the place; fists and sticks were raised; the police in vain tried to keep the peace. then a smart little shoemaker's apprentice hit upon the magic word that quieted all. "it was a bohemian!" he screeched, "a journeyman tailor from pardubitz!" in a moment a hundred voices were re-echoing this. this cry alone penetrated the gloomy reflections in which sendlingen was enshrouded, but he only thought for an instant: "probably some particularly atrocious murder," and then continued the dark train of his thoughts.--now he tried to rouse himself, to cheer himself by new hopes, and he strove hard to think the solution of which berger had spoken, credible. he clung to it, he pictured the whole scene--it was the one comfort left to his unhappy mind. he chose the words by which he would move his prince's heart, and as the unutterable misery of the last few months, the immeasurable torment of his present position once more rose before him, he was seized with pity for himself and his eyes moistened--assuredly! the emperor, too, could not fail to be touched, he would hear him and grant him the life of his child. not altogether, he could not possibly do that, but perhaps he would believe living words rather than dead documentary evidence and would see that the poor creature was deserving of a milder punishment. and when her term of punishment was over--oh! how gladly he would cast from him all the pomp and dignity of the world and journey with her into a foreign land where her past was not known--how he would sacrifice everything to establish her in a new life, in new happiness.... a consoling picture rose before him: a quiet, country seat, apart from the stream of the world, far, far away, in france or in holland. shady trees clustered around a small house and on the veranda there sat a young woman, still pale and with an expression of deep seriousness in her face, but her eyes were brighter already, and there was a look about her mouth as if it could learn to smile again. "vienna." the train stopped; on the platform there was the same swaying, surging crowd as at the suburb, but it was much quieter for the police prevented all shouting and forming into groups. sendlingen did not notice how very strongly the station was guarded. the consoling picture he had conjured up was still before his mind; like a somnambulist he pushed through the crowd and got into a cab. "to the savage," he called to the driver; he gave the order mechanically, from force of habit, for he always stayed at this hotel. the shadows of the dusk had fallen upon the streets as the cab drove out of the station, the lamps' red glimmer was visible through the damp evening mist that had followed upon the sunny day. sendlingen leant back in the cushions and closed his eyes to continue his dream; he did not notice what an unusual stir there was in the streets. it was as if the whole population was making its way to the heart of the city; the vehicles moved in long rows, the pedestrians streamed along in dense masses. there was no shouting, no loud word, but the murmur of the thousands, excitedly tramping along, was joined to a strange hollow buzz that floated unceasingly in the air, and grew stronger and stronger as the carriage neared the centre of the town. more and more police were visible, and at the glacis there was even a battalion at attention, ready for attack at a moment's notice. even this sendlingen did not notice, it hardly entered his mind that the cab was driving much more slowly than usual. that picture of his brain was still before him and hope had visited his heart again. "courage!" he whispered to himself. "one night more of this torment--and then she is saved! he is the only human being who can help us, and he will help us." his cab had at length made way through the crowd that poured in an ever denser throng across the stefansplatz and up the graben towards the imperial palace--and it was able to turn into the kärtnerstrasse. it drew up before the hotel. the hall-porters darted out and helped sendlingen to alight, the proprietor himself hurried forward and bowed low when he recognised him. "his lordship, the chief justice!" he cried. "rooms and . what does your lordship say to this calamity? it has quite dazed me!" "what has happened?" asked sendlingen. "your lordship does not know?" cried the landlord in amazement. "that is almost impossible! a journey-man tailor from hungary, johann libényi, attempted his majesty's life to-day at the glacis. the dagger of the miscreant struck the emperor in the neck. his majesty is severely wounded, if it had not been for the presence of mind of the butcher, ettenreich----" he stopped abruptly, "what is the matter?" he cried darting towards sendlingen. sendlingen tottered, and but for his help would have fallen to the ground. chapter xiii. on the evening of the next day count karolberg, sendlingen's brother-in-law, entered his room at the hotel. "well, here you are at last!" he cried, still in the door-way. "is this the way to go on after a bad attack of the heart on the evening before? three times to-day have i tried to get hold of you, the first time at nine in the morning and you had already gone out." "thank you very much!" replied sendlingen. "my anxiety for authentic news about the emperor's condition, drove me out of doors betimes, and so i went to the imperial chancellery as early as was seemly. but i only learnt what is in all the papers: that there was no danger of his life, but that he would need quite three weeks of absolute rest to bring about his complete recovery. meanwhile the cabinet is to see to all current affairs: the sovereign authority of the emperor is suspended, and none of the princes of the blood are to act as regent during the illness." "but you surely did not inquire about that?" cried count karolberg in astonishment. "that goes without saying." "goes without saying!" muttered sendlingen, and for a moment his self-command left him and his features became so listless and gloomy that his brother-in-law looked at him much concerned. "victor!" he said, "you are really ill! you must see oppolzer to-morrow." "i cannot. i must go back to bolosch to-night. i require two days at least, to arrange the surrender of matters to my successor. but then i shall come back here at once." "good! you are going to spend the week before entering on your new position here; the minister of justice has just told me. it was very prudent of you to visit him at once." "it was only fitting that i should," said sendlingen. alas! not from any motives of fitness or prudence had he gone to the minister of justice; it was despair that drove him there after the information he got at the chancellery, a remnant of a hope that by his help, he might at least attain the postponement of the execution till the emperor was better again. not until he was in the minister's ante-room, and had already been announced, did he recover his senses and recognise that the minister could as little command a postponement as he himself, and so he kept silence. "he was very friendly to me!" he added aloud. "he is completely reconciled to you," count karolberg eagerly corroborated. "he spoke to me of your ill-health with the sincerest sympathy, and told me that you had hinted at not accepting the post at pfalicz but contemplated retiring. i hope that is far from being your resolve! if you require a lengthy cure somewhere in the south, leave of absence would be sufficient. how could you have the heart to renounce a career that smiles upon you as yours does?" "of, course," replied sendlingen, "i shall consider the subject thoroughly." he then asked to be excused for a minute in order to write a telegram to bolosch. he sat down at the writing-table. he found the few words needed hard to choose. he crossed them out and altered them again and again--it was the first lie that that hand had ever set down. at length he had finished. the telegram read as follows: "george berger, bolosch. end desired as good as attained. have procured postponement till recovery of decisive arbiter. return to-morrow comforted. victor." he then drove with count karolberg to his house and spent the evening there in the circle of his relations. he was quiet and cheerful at he used to be, and when he took his leave of the lady of the house to go to the station, he jokingly invited himself to dinner on the d of february. the weather had completely changed, since the morning heavy snow had fallen: the bolosch train had to wait a long time at the next station till the snow-ploughs had cleared the line, and it was not till late next morning that it reached its destination. sendlingen was deeply moved that, notwithstanding, the first face he saw on getting out of the train, was that of his faithful friend. and at the same time it frightened him: for how could he look him in the face? but in his impetuous joy, berger did not observe how sendlingen shrank at his gaze. "at last!" he cried, embracing him, and with moistened eyes, he pressed his hand, incapable of uttering a word. "thank you!" said sendlingen in an uncertain voice. "it--it came upon you as a surprise?" "you may imagine that!" cried berger. "soon after your departure, i heard the news of the attempt on the emperor's life. i thought all was lost and was about to hurry to you when your telegram came. and then, picture my delight! i sent for franz--the old man was mad with joy!" they had come out to the front of the station and had got into berger's sleigh. "to my house!" he called to the driver! "what are you thinking of?" asked sendlingen. "you forget that you have no longer a habitable home!" cried berger. "there is such a veritable hurly-burly at the residence, that even franz hardly knows his way about--where do you mean to stay?" "at the hofmann hotel," replied sendlingen. "i have already commissioned franz to take rooms there. it is impossible for me to stay with you, george. please do not press me. i cannot do it." berger looked at him astonished. "but why not? and how tragically it affects you? to the hofmann hotel!" he now ordered the driver. "but now tell me everything," he begged, when the sleigh had altered its direction. "who granted you the postponement?" "the archduke ferdinand maximilian," replied sendlingen quickly, "the emperor's eldest brother. i had an interview with him yesterday. the order to werner to postpone the execution, should be here by the day after to-morrow. for my own part, i shall stay in vienna until the emperor has recovered. the archduke himself could not give a final decision." "once more my heartiest congratulations!" cried berger. "i will faithfully watch over victorine till you return. and now as to other things. do you know whom this concerns?" he pointed to some bundles of fir-branches that were being unloaded at several houses. here and there, too, some black and yellow, or black, red and yellow flags were being hung out. "you, victor. the whole of bolosch is preparing itself for to-morrow, it will be such a fête as the town has not seen for a long time. the committee has done nothing either about the decorations or the illuminations. both are spontaneous, and done without any preconcerted arrangement." "this must not take place!" cried sendlingen impatiently. "i cannot allow it! it would rend my heart!" "i understand you," said berger. "but in for a penny etc. besides your heart may be easier now, than at the time you agreed to accept the torch-light procession and the banquet. do not spoil these good people's pleasure, they have honorably earned your countenance. every third man in bolosch is inconsolable to-day because there are no more tickets left for the banquet, although we have hired the biggest room in the place, the one in the town-hall. the only compensation that we could offer them, was the modest pleasure of carrying a torch in your honour and at the same time burning a few holes in their sunday clothes. notwithstanding, torches have since yesterday become the subject of some very swindling jobbery." in this manner he gossiped away cheerfully until the sleigh drew up at the hotel. herr hofmann, the landlord, was almost speechless with pleasure. "what an honour," stammered the fat man, his broad features colouring a sort of purple-red. "your lordship is going to receive the procession on my balcony?" "yes indeed," sighed berger, "and it is i who got you this honour!" he drove away, promising to send franz who was waiting at his house. after a short interval franz appeared at the hotel; his face beamed as he entered his master's room, and a few minutes later, when he came out again, it was pale and distorted and his eyes seemed blinded; the old man was reeling like a drunkard as he went back to berger's house to fetch the trunks to the hotel. without making good his lost night's rest, sendlingen betook himself to his chambers. herr von werner was already waiting for him; they at once went to their task and began with the business of the civil court. it was not difficult work, but it consumed much time, especially as werner in accordance with his usual custom would not dispatch the most insignificant thing by word of mouth. seldom can any mortal have written his signature with the same pleasure as he to-day signed: "von werner, chief justice." sendlingen held out patiently, without a sign of discomposure, "like a lamb for the sacrifice" thought baron dernegg who was assisting with the transfer. they only interrupted their work to take a scanty meal in chambers; twice, moreover, franz sent for his master to make a brief communication. at length, about ten at night, the work was done. for the next day, when the affairs of the criminal court were to be disposed of, werner promised to be more brief. "you had better, if you value your life," cried dernegg laughing. "the citizens of bolosch won't be made fools of. woe to you if you don't release the hero of to-morrow's fête in good time!" sendlingen went to berger who had now been waiting for him several hours with increasing impatience. "i shall never forgive herr von werner this!" he swore as they sat down to their belated meal. "and it is the last evening in which i shall have you to myself! franz told me that you were going to vienna by the express at four in the morning, why will you not take a proper rest after the excitement of the fête? you had better go the day after to-morrow by the midday train." "i cannot," replied sendlingen. "the minister of justice has asked me to attend an important conference the day after to-morrow, and therefore i am even thinking of going by the mail-train to-morrow. it starts shortly after midnight and----" "that is quite impossible!" interrupted berger. "just consider, the procession takes place between eight and nine, the banquet begins at ten, it will be eleven before the first speeches are made--then you are to reply in all speed, rush out, hurry to the hotel, change your clothes, fly to the station----why, it is quite impossible, and the people would be justly offended if you fled from the feast in an hour's time as if it were a torment!" "and so it is!" cried sendlingen. "when you consider what my feelings are likely to be at leaving bolosch, then you will certainly not try to stop me, but will rather help me, so that the torment be not too long drawn out." berger shrugged his shoulders. "you always get your own way!" he said. "but it is not right to offend the people and then victimise yourself all night in a train that stops at even the smallest stations." then they talked of the political bearings, of the consequences, which the crime of the th february, the act of a half-witted creature, might have on the freedom of austria. victorine's name was not mentioned by either of them this time. sendlingen never closed his eyes all that night, although herr hofmann had personally selected for him the best pillows in the hotel. it was a dark, wild night; the snow alone gave a faint glimmer. an icy northeast wind whistled its wild song through the streets, fit accompaniment to the thoughts of the sleepless man. towards eight in the morning--it had just become daylight--he heard the sound of military music; the band was playing a buoyant march. at the same time there was a knock at his door and franz entered. the old man was completely broken down. "we must dress," he said. "the band of the jägers and the choral society are about to serenade. besides i suppose we have not slept!" "nor you either, franz?" "what does that matter! but we will not survive it!" he groaned. "oh! that this day, that this night, were already past." "it must be, franz." "yes, it must be!" the band came nearer and nearer. at the same time the footsteps, the laughter and shouts of a large crowd were audible. the old man listened. "that's the radetzky march!" he said. "ah! how merrily they are piping to our sorrow." the procession had reached the hotel. "three cheers for sendlingen!" cried a stentorian voice. the band struck up a flourish and from hundreds and hundreds of throats came the resounding shout: "hip, hip, hurrah! hurrah! hurrah!" then the band played a short overture and the fingers followed with a chorus. meanwhile sendlingen had finished dressing; he went into the adjoining room, and, after the song was finished and the cheering had begun again, he opened a window and bowed his thanks. at his appearance the shouts were louder and louder; like the voice of a storm they rose again and again: "hurrah for sendlingen! hurrah! hurrah!" and mingling with them was the cry of the czech workmen: "slava--na zdar!" all the windows in the street were open; the women waved their handkerchiefs, the men their hats; as far as the eye could see, bright flags were floating before the snow-covered houses, and decorations of fir were conspicuous in all the windows and balconies. the unhappy man stared in stupefaction at the scene beneath him, then a burning crimson flushed his pale face and he raised his hand as if to expostulate. the crowd put another interpretation on the sign and thought that he wanted to make a speech. "silence," shouted a hundred voices together and there was a general hush. but sendlingen quickly withdrew, while the cheering broke forth afresh. "my hat!" he cried to franz. he wanted to escape to the courts by the back door of the hotel. but it was too late; the door of the room opened, and the committee entered and presented the address of the inhabitants of bolosch. then the mayor and town-council appeared bringing the greatest distinction that had ever been conferred on a citizen of bolosch--not only the freedom of the city, but the resolution of the town-council to change the name of cross street forthwith into sendlingen street. various other deputations followed: the last was that of the workmen. their leader was johannes novyrok; he presented as a gift, according to a slavonic custom, a loaf of bread and a plated salt-cellar, adding: "look at that salt-cellar, my lord! if you imagine that it is silver you will be much mistaken, it is only very thinly plated and cost no more than four gulden, forty kreutzer, and i must candidly say that the dealer has very likely swindled us out of a few groschen in the transaction; for what do we understand of such baubles? well, four gulden and forty kreutzer, besides fifteen kreutzer for the bread and five kreutzer for the salt, make altogether five gulden of the realm. now you will perhaps think to yourself, my lord: are these men mad that they dare offer _me_ such a trifling gift--but to that i answer: five gulden are three hundred kreutzer of the realm, and these three hundred kreutzer were collected in this way: three hundred workmen of this town after receiving their wages last saturday, each subscribed one kreutzer to give you a bit of pleasure. and now that you know this, you will certainly honour their trifling gift. we beg you to keep this salt-cellar on your table, so that your heart may be always rejoiced by the gift of poor men whose benefactor you have been." in the law courts, too, a solemn ovation was awaiting him. two judges received him at the entrance and conducted him to the hall of the senate, where all the members of the court were gathered. werner handed him their parting-gift: a water-colour painting of the courts of justice, and an album with the photographs of all connected with them. "to the model of every judicial virtue," was stamped on it in gold letters. then dernegg stepped forward. a number of the court officials had clubbed together to adorn the walls with sendlingen's portrait. dernegg made a sign and the curtain was withdrawn from the picture. "not only to honour you," he continued turning to sendlingen, "have we placed this picture here, but because we desire that your portrait should look down upon us to admonish and encourage us, whenever we are assembled here in solemn deliberation. it was here that four months ago you gave utterance to a sentiment that, to me, will always be more significant of your character than anything i ever heard you say. we were discussing the condemnation of an unfortunate government clerk. 'i have never been,' you said on that occasion, 'a blind adherent of the maxim fiat justitia et pereat mundum--but at least it must so far be considered sacred, as binding each of us judges to act according to law and duty, even if our hearts should break in doing so.' such things are easily said, but hard to do. fate, however, had decreed that you were, since then, to give a proof that this conviction had indeed been the loadstar of your life. who should know that better than i, your colleague in those sorrowful days. you never hesitated, even when all that the heart of man may cling to, was at stake in your life." he had intended to go into this at greater length, but he came to a speedy conclusion when he saw how pale sendlingen had turned. "very likely his heart is troubling him again," he thought. but the attack seemed to pass quickly. certainly sendlingen only replied in a very few words, but he went to work again with werner zealously. the three men--dernegg was assisting to-day as well--betook themselves to the prison. in the governor's office, the register of prisoners was gone through. werner started when he saw the list of the sick. "so many?" he cried. "our doctor would be more suited to a philanthropic institute than here. here, for instance, i read: 'victorine lippert. since the th november, .' why that must be the child-murderess, that impertinent person who made such a scene at the trial. and here it says further: 'convalescent since the middle of december, but must remain in the infirmary till her complete recovery on account of grave general debility.' this person has been well for two months, and is still treated as if she were ill! isn't that unjustifiable?" sendlingen made no reply; he was holding one of the lists close to his eyes, so that his face was not visible. dernegg, however, answered: "perhaps the contrary would be unjustifiable. the doctor knows the case, we don't. he is a conscientious man." "certainly," agreed werner, "of course he is--but much too soft-hearted. let us keep to this particular case. well, this person has been tended as an invalid for more than two months. that adds an increase of more than twenty kreutzer daily to the public expenditure, altogether, since the middle of december, fourteen gulden of the realm. we should calculate, gentlemen, calculate. and is such a person worth so much money? well, we can soon see for ourselves whether she is ill!" they began to go the rounds of the prison. that was soon done with, but in the first room of the infirmary, werner began a formal examination of the patients. sendlingen went up to him. "finish that tomorrow," he said sharply, in an undertone. "you are my successor, not my supervisor." werner almost doubled up. "excuse me--" he muttered in the greatest embarrassment. "you are right,--but i did not dream of offending you--you whom i honour so highly. let us go." they went through the remainder of the rooms without stopping, until they came to the separate cells for female patients. here, only two female warders kept guard. werner looked through the list of the patients' names. "why, victorine lippert is here," he said. "actually in a separate cell. my lord chief justice," he continued in an almost beseeching tone of voice, turning to sendlingen, "this one case i should like at once to--i beg--it really consumes me with indignation--otherwise i must come over this afternoon." sendlingen had turned away. "as you wish," he then muttered, and they entered her cell. victorine had just sat down at her table and was reading the bible. she looked up, a crimson flush overspread her face, trembling with a glad excitement she rose--the pardon must at length have arrived from vienna, and the judges were coming to announce it. the danger increased sendlingen's strength. he had not been able to endure dernegg's words of praise, but now that the questioning look of his child rested on him, now that his heart threatened to stand still from compassion and from terror of what the next moment might bring forth, not a muscle of his face moved. perhaps it decisively affected his and victorine's fate, that this unspeakable torture only lasted a few moments. "there we are!" werner broke forth. "rosy and healthy and out of bed. a nice sort of illness. but this shall be put a stop to to-day." with a low cry, her face turning white, victorine staggered back. werner did not hear her, he had already left the cell, the other two followed him. "it was on account of your request that i was so brief," said werner in the corridor turning to sendlingen. "besides one glance is sufficient! tell me yourself, my lord, does she look as if she were ill?" "you must take the doctor's opinion about that," said dernegg. "that would be superfluous," said sendlingen, his voice scarcely trembling. "the sentence of death is confirmed; she must be executed in a few days; the th february at the latest, as the sentence reached here on the seventeenth. i can only share your view," he continued turning to werner, "she really looks healthy enough to be removed into the common prison. but what would be the good? we have not got any special 'black hole' in which condemned criminals spend the day before their execution, and one of these cells in the infirmary is always used for the purpose." "you are right as usual," werner warmly agreed. "she can remain in the cell for the two days: that will be the most practical thing to do. on the twenty-third, i will announce the sentence, on the twenty-fourth, the execution can take place." sendlingen gave a deep sigh. "we have finished with the prisons now," he said, "let us go back to chambers. allow me to show you the nearest way." he beckoned to the governor of the prison to follow them. the cells of the infirmary were in a short corridor that opened into the prison-yard. the governor opened the door and they stepped out into the yard. "i have a key to this door," said sendlingen to werner, "as well as to that over there." he pointed to the little door in the wall which separated the prison-yard from the front part of the building. "i will hand both these keys over to you presently. my predecessor had this door made, so as to convince himself, from time to time, that the prison officials were doing their duty. but he forgot to tell me about this, and so the keys have been rusting unused in my official writing-table. i first heard of this accidentally a few months ago." "certainly this means of access requires some consideration," observed dernegg. "an attempt at escape would meet with very slight obstacles here. anyone once in the infirmary corridor, would only need to break through two weak doors, the one in the yard and this one in the wall, and then get away scot free by the principal entrance which leads to the offices and private residence of the chief justice!" "what an idea!" laughed werner. "in the first place: how would the fellow get out of the sick-room or out of his cell into the corridor of the female patients? he would first have to break through two or three doors. and if he should succeed in getting out into the yard, he would perhaps never notice the door, it is so hidden away; and if, groping about in the dark, he were to find it, he would not know where it led to, or whether there might not be a sentry on the other side with a loaded rifle. no, no, i think this arrangement is very ingenious, very ingenious, gentlemen, and i purpose often to make use of it." sendlingen took no part in this talk; he had altogether become very taciturn and remained so, as they set to work again in chambers. but the evening had long set in, the illumination of the town had begun, and the lights were burning in the windows of the room where they were working, before they had completed all the formalities. when all was finished, sendlingen handed his successor the keys of which he had spoken. franz was waiting outside with a carriage from the hotel. it was a nasty night; an icy wind was driving the snow-flakes before it. notwithstanding sendlingen wanted to proceed on foot. "my forehead burns," he complained. but franz urged: "i have brought it on account of the crowds of people about. if we are recognised, we should never get along or escape from the cheering." so sendlingen got in. this precaution proved to be well-founded. in spite of the stormy weather, the streets were densely packed with people slowly streaming hither and thither, and admiring the unwonted spectacle of the illuminations. the carriage could only proceed at a walking pace: sendlingen buried himself deeper in its cushions so as not to be recognised. "the good people!" said old franz who was sitting opposite him. "i have always known who it was i was serving, but how much we are loved and honoured in this town, was not manifest till to-night. but we are not looking at the illuminations, they are very beautiful." "and who is it they are there for!" cried sendlingen burying his face in his hands. the carriage which had been going slower and slower, was now obliged to stop; it had come to the beginning of cross street which since the morning bore the superscription: "sendlingen street!" the inhabitants of this street in order to show themselves worthy of the honour, had illuminated more lavishly than anyone else, and as the hofmann hotel was situated here, the crowd had formed into such a dense mass at this point, that a passage through it was not to be thought of. sendlingen had to quit the carriage and, half deafened with the cheers, he hurried through the ranks and breathed again when he reached the shelter of the hotel. there berger, who had been impatiently awaiting him, met him. "now quick into your dress clothes," he cried, "in ten minutes the procession will be here." sendlingen had hardly finished dressing, when the sound of music and the shouts of the crowd, announced the approach of the procession. he was obliged to yield to his friend's pressure and go out on the balcony. there was a red glimmer from the direction of the river, and like a giant fire-serpent, the procession wound its way through the crowd. it stopped before the hotel, the torch-bearers formed themselves in line in the broad street. unceasingly, endlessly, like the roar of wild waves, resounded the cheers. berger's eyes sparkled. "this is a moment which few men live to see," he said. "know this, and be glad of it! he who has won such love is, in spite of anything that could happen, one of the favoured of this earth!" then they drove to the banquet at the town-hall. the large room was full to overflowing, and all agreed that this was the most brilliant assembly that had ever been gathered together within its walls, "but he deserves it," all said. "what has this man not suffered in the last few weeks through his fidelity to conviction! one can see it in his face--this agitation has broken his strength for years!" people therefore did not take it ill that his replies to the two toasts, "our last honorary citizen" proposed by the mayor, and the "rock of justice" proposed by the chairman of the committee, were very briefly put. he thanked them for the unmerited honour that had been done him, assured them that he would never forget their kindness, and, to be brief, made only the most commonplace remarks, without fulfilling either by his style or his thoughts, the expectation with which this speech had been looked forward to. nevertheless, after he had finished, he was greeted with wild cheering, and the same thundering applause followed him as he left the hall towards eleven o'clock. berger and dernegg accompanied him to the hotel, then to the station. the first bell had already rung when they got there; so their farewell had to be brief. silently, with moistened eyes, sendlingen embraced his friend before he got into the train; franz took his place in a second-class compartment of the same carriage. both waved from the windows after the train had moved off and was gliding away, swifter and swifter, into the stormy night. * * * * * next morning about nine o'clock, when berger had just sat down at his writing-table, there was a violent knock at his door and a clerk of the law courts rushed in. "dr. berger!" he cried, breathlessly, "herr von werner urgently begs you to go to him at once. victorine lippert has escaped from the prison in the night." berger turned deadly pale. "escaped?" "or been taken out!" continued the clerk. "herr von werner hopes you may be able to give some hint as to who could have interested themselves in the person." "very well," muttered berger. "i know little enough about the matter, but i will come at once." the clerk departed; berger sat at his table a long time, staring before him, his head heavily sunk on his breast. "unhappy wretch!" he thought. "now i understand all!" now he understood all: why sendlingen had hesitated so long in taking the journey to vienna, why he had taken franz and brigitta into his confidence, why he had spent the last two days at the hotel where he and his servant could make all preparations undisturbed, and why he had chosen the mail train which stopped at every station. the next station to bolosch was not distant more than half an hour's drive by sleigh. "they must both have left the train there," he thought, "and hurried back in a sleigh that was waiting for them, then released victorine and hastened away with her, perhaps to the first station where the express stops, perhaps in the opposite direction towards pfalicz. at this moment, very likely, she is journeying under franz's protection to some foreign country where brigitta awaits her, somewhere in france, or england, or italy, while he is hurrying to vienna, so as not to miss his appointment with the minister of justice!" "monstrous!" he groaned. and surely, the world had never before seen such a thing: such a crime committed by such a man, and on the very day when his fellow-citizens had done honour to him as the "rock of justice!" and such he would be for all time, in the eyes of all the world; it was not to be supposed that the very faintest suspicion would turn against him: he would go to pfalicz and there continue to judge the crimes of others. the honest lawyer boiled over, he could no longer sit still but began to pace up and down excitedly. bitter, grievous indignation filled his heart; the most sacred thing on earth had been sullied, justice, and by a man whom of all men he had loved and honoured. and then this same love stirred in his heart again. he thought of last night, of the moment when he had stood by his friend, while the thousands surged below making the air ring with their cheers. pity incontinently possessed his soul again. "what the poor wretch must have suffered at this moment!" he thought. "it is a marvel that he did not go mad. and what he must have suffered on his journey to vienna, and long weeks before, when the resolve first took shape in him!" he bowed his head. "judge not, that ye be not judged," cried a voice of admonition within him. his bitterness disappeared, and deep sorrow alone filled his heart: sin had bred other sins, crime, another crime and fresh remorse and despair. how to judge this deed, what was there to be said in condemnation, what in vindication of it: that deed of which he had once dreamed, it certainly was not; it was no great, liberating solution of these complications, but only an end of them, a hideous end! certainly victorine might have now suffered enough to have been granted freedom, and the opportunity of new life, and no less certainly would sendlingen, honourable and loving justice in the extreme, carry in his conscience through life, the punishment for his crime--but justice had been outraged, and this sacred thing would never receive the expiation that was its due. "a wrong should not be expiated by a crime!" sendlingen had once said to him--but now he had done it himself. "re-assure yourself," he had once exclaimed at a later date, "outraged justice shall receive the expiation that is its due!" this would not, could not be--never--never! berger roused himself and went forth on his bitter errand. when he reached the courts of justice, old hoche, who had entered on his retirement some weeks ago, was just coming out. berger was going to pass him with a brief salutation, but the old gentleman button-holed him. "what do you say to this?" he cried. "monstrous, isn't it? i am heartily glad that the misfortune has not befallen sendlingen! but do not imagine that i wish it to herr von werner. on the contrary, i have just given him a piece of advice--ha! ha! ha!--that should relieve him of his perplexity. you cross-examine dr. berger sharply, i said to him; that is the safest way of getting to know the secret of who took her out. for the way dr. berger interested himself in this person, is not to be described. me, a judge, he called a murderer for her sake, upon my word, a murderer. ha! ha! ha! there you have it." berger had turned pale. "this is not a subject of jest," he said, angrily. "oh, my dear dr. berger!" replied the old man soothingly, "i have only advised herr von werner--and naturally without the slightest suspicion against you--to formally examine you on oath as a witness. for anyone connected with the prisoner is likely to know best. and besides: a record of evidence can never do any harm--_ut aliquid fecisse videatur_, you know. they will see in vienna that werner has taken a lot of trouble. well, good-bye, my dear doctor, good-bye." he went. berger strode up the steps. his face was troubled and a sudden terror shook his limbs. he had never thought of that. supposing he should now be examined on oath? could he then say: 'i have no suspicion who could have helped her?' could he be guilty of perjury to save them both? "may god help them then," he hissed, "for i cannot." he entered the corridor that led to the chief justice's chambers. the examination of the prison officials had just been concluded, but a few warders were standing about and attentively listening to the crafty höbinger's explanation of this extraordinary case. "favouritism!" berger heard him say as he went by, "her lover, the young count, has got her out." the two female warders of the infirmary cells were there too, sobbing. berger entered the chief justice's chambers. baron dernegg and the governor of the prison were with werner. at a side-table sat a clerk; a crucifix and two unlighted candles were beside him. "at last!" cried werner. "i begged you so particularly to come at once. there is not a moment to be lost. light the candles!" he called to the clerk. "but that may be quite useless," cried dernegg. "do you know anything about the matter?" he then asked berger. "no!" the sound came hoarsely, almost unintelligibly, from his stifled breast. werner stood irresolute. "but dr. berger was her counsel," he said, "and the authorities in vienna----" "must see that you have taken trouble," supplemented dernegg. "they will hardly see this from documents with nothing in them. we have more important things to do now: the escape was discovered three hours ago, and the description of her appearance has not yet been drawn up and telegraphed to vienna and the frontier stations." werner still looked irresolutely at the lighted candles for a few seconds: to berger they seemed an eternity of bitter anguish such as his conscience had never endured before. "put out the candles! come, the description of her appearance!" he seized the papers relating to the trial. "please help me!" he said turning to dernegg. "my head is swimming! o god! that i should have lived to see this day!" while the clerks were writing at the dictation of the two judges, berger turned to the governor and asked him how the escape had been effected. "it is like magic!" he replied. "when one of the female warders was taking her breakfast to her this morning, she found the door merely latched and the cell empty. the lock must have been opened from the inside. her course can be plainly traced: she escaped through the yard; the locks of all the doors have been forced from inside by a file used by someone with great strength. this is the first riddle. such a thing could hardly be done by the hand of the strongest man; it is quite impossible that victorine lippert had sufficient strength! the doctor vouches for it, and for the matter of that you knew her yourself, dr. berger." berger shrugged his shoulders and the governor continued: "you see the theory of external assistance forces itself imperatively upon us, and yet it is not tenable. the help cannot have come from outside, as all the locks were forced on the inside. and in the prison she can likewise have received no assistance. there is not one of the warders capable of such a crime, besides there is only one door between the general prison and the corridor of the female patients, and that was locked and remained locked. since any external help is not to be thought of, we are obliged, difficult as it is, to credit victorine lippert with sufficient strength. but there we are confronted with the second riddle: how did she come by the file? and in the face of such incomprehensibilities, it is a small thing that she should also have been aware of an exit that is known to few!" "mysterious in every way!" said berger. "most extraordinary!" to him the rationale of the thing was plain enough: master and servant had by means of the official keys or of duplicates which they had had made, penetrated the prison, and on their return had filed the locks. by this ruse, all suspicion of external help would be removed, and at the same time, as far as sendlingen could do so, it would be averted from the prison officials. meanwhile the two judges had drawn up the description of the fugitive's appearance, and dernegg renewed his advice to telegraph it abroad at once. werner objected that this was "a new method" that he would not agree to. "everything according to rule!" he said. "we will publish the description in the official paper, distribute it among the police, and send a copy to vienna. it is inconceivable that the person has got out of the country; where would she get the money from? we will therefore not telegraph, and that is enough!" but after the old man had roused himself to this judgment of solomon, his self-control deserted him altogether. "what a calamity!" he moaned. "what a beginning to my life as chief justice! but i am innocent! alas! i shall, none the less, receive a reprimand from the minister which i shall carry about me all my life, unless sendlingen saves me. but my friend sendlingen, that best of colleagues, will speak for me and save me. excuse me, gentlemen--but i shall have no peace, until i have written and asked for his help!" he sat down to his writing-table, the others took their leave. the next morning berger received a letter from vienna, the handwriting of the address was known to him and, with trembling hands, he opened the envelope. this was the letter. "i know that you cannot forgive me and i do not ask you to do so. one favour only do i implore: do not give up hope that the time will one day come when i shall again be worthy of your regard. the first step to this i took yesterday: i have left the service of the state for ever, and i do not doubt that i shall have courage to take the second step, the step that will resolve all; when god will grant me the grace to do this, i know not. pray with me that i may not have too long to wait. "farewell, george, farewell for ever! "victor." berger stared for a long while at these lines, his lips trembled--he was very sore at heart. then he drew a candle towards him, lit it, and held the letter in its flame until it had turned to ashes. "farewell, thou best and purest of men," he whispered to himself, and a sudden tear ran down his cheek. chapter xiv. three years had passed, it was the summer of . bright and hot, the june sun shone upon the valley of the rhine ripening the vineyards that hung upon its rocky declivities. the boat steaming down the valley from mayence to the holy city of cologne, had its sheltering awning carefully stretched over the deck, and all went merrily on board, merrily as ever. more beautiful landscapes there may be in the world, but none that make the heart more glad. and so thought two grave-looking men who had come aboard at mayence that morning. they had come from austria, and were going to london; they did not want to miss the opportunity of seeing the beautiful river, but at the beginning of the journey they made but a poor use of the favourable day. they sat there oppressed and scarcely looking up, consulting together about the weighty business that lay on their shoulders. but an hour later, when they got into nassau, they yielded to the charm of the scenery, and as they glided by rüdesheim, they began to consider whether, after all, the rhine was not the proper place to drink rhine-wine, and when they passed the castle called the pfalz at caub, they first saw this venerable building through their spectacles, and then through the green-gold light of the brimming glasses they were holding to their eyes. these two men were dr. george berger of bolosch and a fellow barrister from vienna. they had a difficult task to perform in london. one of the largest iron-foundries in austria, that at bolosch, had got into difficulties, and an attempt to stave off bankruptcy had failed, less from the action of the creditors, than from the miserable red-tapism of the chief justice of bolosch, herr von werner. the foundry, which employed thousands of men, would be utterly ruined if it did not succeed in obtaining foreign capital. with this object, these two representatives of the firm were making their way to england. on the rhine, everybody forgets their cares and this was their good-fortune too. and so greatly had the lovely river, which both now saw for the first time, taken possession of their hearts, that they could not part company with it even at cologne, where most people went ashore. they resolved to continue the journey by the river as far as arnhem, and they paced up and down the now empty deck cheerfully talking in the cool of the evening. no mountains, no castles, were any longer reflected in the stream, but the look of its shores was still pleasant, and when they saw the light of dying day spread its rosy net over the broad and swiftly flowing waters, they did not repent their resolve, and extolled the day that had ended as beautiful as it had begun. the shades of evening fell, the banks of the river grew more and more flat and bare, factories became more and more plentiful, and behind dusseldorf, they saw the red glare of countless blast-furnaces, brightly glowing in the dark. this sight reminded them of their task. "who knows," sighed berger's friend dr. moldenhauer, "how soon these fires at home may not be extinguished! and why? because of the narrow-mindedness of one single man. nothing in my life ever roused my indignation more than our dealings with your chief justice! what pedantry! what shortsightedness! now his predecessor, baron sendlingen, was a different sort of man!" berger sighed deeply. "that he was!" he replied. "the werners stay, the sendlingens go," continued dr. moldenhauer. "and they are allowed to go cheerfully, nay, even forced to go! at least it was generally said that, when baron sendlingen suddenly retired a few years ago, it was not on account of heart-disease, as officially reported, but because he had had a difference with the minister of justice. the regret at this was so great that his excellency had to hear many a reproach." "perhaps unjustly for once," said berger, heavy at heart. "i don't think so," cried moldenhauer. "sendlingen certainly went away in deep dudgeon, otherwise he would not have renounced his pension and then left austria for ever. even his brother-in-law, count karolberg, does not know where he has gone. you were very intimate with him, do you know?" "no!" "count karolberg thinks he may have died suddenly in some of his travels abroad." "that too is possible," answered berger shortly; he was anxious to drop the subject. but moldenhauer stuck to his theme. "what a thousand pities it is!" he continued. "how great a lawyer he was, his last work, 'on responsibility and punishment in child-murder,' which appeared anonymously some three years ago, most clearly shows--you know the book of course." "yes," said berger, "but i doubt whether it is by sendlingen." this was an untruth, he had never doubted it. "it is attributed to other writers as well," replied dr. moldenhauer, "but his brother-in-law is convinced that it is by him. he says he recognised the style and also some of the thoughts, which sendlingen explained to him in conversation. whoever the author may be, he need not have concealed his identity. the work is the finest ever written on this subject and has made a great sensation. it is chiefly owing to its influence, that our new penal code so definitely emphasizes the question of unsoundness of mind in such crimes, and has so materially lessened the punishment for them." he talked for a long time of the excellencies of the work, but berger hardly heard him, and was silent and absent-minded for the rest of the evening. when moldenhauer retired to his cabin for the night, berger still remained on deck; he was fascinated, he said, by this wondrous spectacle of the night. and indeed the aspect of the scene was strange enough and not without its charm. the moon-light lay in a faint glimmer on the stream that here, having almost poured forth its endless waters, was slowly flowing with a gentle murmur towards its grave, the vast sandy plain of the sea. on the level shores, the dim light showed the distant, dusky outlines of solitary high houses and windmills, and then again came blast-furnaces, smoking and flaming, denser and denser was the forest of them the further the boat glided on, and, here and there, where one stood close to the shore, it threw its blood-red reflex far on to the waters reaching almost to the boat, so that its lurid light and the faint lustre of the celestial luminary, seemed to be struggling for the mastery of it. the lonely passenger on the deck kept his eyes riveted on the scene, but his thoughts were far away. his recent conversation had powerfully stirred up the memory of his unhappy friend. since that last letter he had received no line, no sign or token of any sort from him. why? he asked himself. from mistrust? impossible. from caution? that would be exaggerated; the writing on the envelope would not betray to any meddlesome person in what corner of the earth he had buried himself with his child. besides he had no need to be apprehensive of any inquiry; no one knew of his child, victorine lippert's escape from prison had never been cleared up, the investigation had soon after been discontinued without result. the governor of the prison had been reprimanded for want of care in searching the cell, the little door in the wall had been bricked up, so that herr von werner had never been able to make use of the arrangement which he had thought so "ingenious"--those were the only consequences. among the prison officials as among the lower classes, the opinion was sometimes expressed that it was count riesner-graskowitz who had liberated his sweetheart, but this was not believed in higher circles; against sendlingen, however, there was never the slightest breath of suspicion. sendlingen himself must know this well enough, otherwise he would not have dared to let his book appear, that curious work in which every reader might perceive beneath the stiff, solid legal terminology, the beatings of a deeply-moved heart. he had not put his name to it, but he must have known that his name would rise to the lips of anyone who had carefully read his earlier writings. if he had not feared this, he might well have ventured upon a letter. if he was none the less silent, it must be because he preferred to be silent. had he, perhaps, thought berger, not had the courage to take that second step, had he perhaps renounced the intention and was now ashamed to confess it? that would be superfluous anxiety indeed. is there a man in the wide world, who would have the heart to blame him for this? or was he silent because he could speak no more? the thought had never entered his head before; now in this lonely hour of night it overmastered him. of course, his brother-in-law was right, he had died a sudden death and now slept his last sleep somewhere in a strange land and under a strange name. and if that were so, would it be cause for complaint? would not death have been a deliverer here? softly murmuring, the waters of the river glided on, not a sound came from its banks; in deep and solemn stillness, night lay upon the land and waters. the solitary figure on deck alone could find no rest, and the early dawn was trembling in the east over the distant hills of guelderland, ere he at length went in search of sleep. he had scarcely rested a couple of hours when the steward knocked at his cabin-door--the passengers were to come on deck, the boat was approaching lobith, on the dutch frontier, where the luggage had to be examined. the two travellers answered to the call. the steamer was already nearing the shore by the landing stage of the village of which the custom-house seemed the only inhabitable building. the dutch customs officers in their curious uniforms came on deck. the were speedily finished with the luggage of the two lawyers, as also with that of the few other passengers. on the other hand four mighty trunks, which the captain had with him, gave them much trouble. they were full throughout of things liable to duty: new clothes, linen, lace and articles of luxury. they required troublesome measuring, weighing and calculation. half an hour had passed, and scarcely the half had been gone through. "we shall miss the train at arnhem," said berger turning impatiently to the captain. "we must be in london to-morrow, you are responsible for the delay." "i shall make up the time by putting on steam," he reassuringly said in his broad cologne dialect. "excuse me, sir, but i did not imagine that women's finery would take up so much time." "you are getting a trousseau for a daughter, i suppose." "god forbid! thank heaven, i am unmarried. i have, out of pure goodnature, brought these things for someone else from cologne and undertaken to pay the duty for him. it is the most convenient thing to him, though certainly not to me. but what would one not do for a compatriot. he is a herr von tessenau." "tessenau?" the name seemed familiar to berger, but he could not remember where he had heard or read it. "yes, that is his name," said the captain. "he comes from bavaria, and is said to have been in the diplomatic service. he is now living with his daughter at oosterdaal house near huissen, the station before arnhem. i know both of them well, they sometimes use my boat for the journey to arnhem, and as they are such nice people, i could not refuse them this service. the wedding, which is to take place the day after to-morrow, would otherwise have had to be postponed--ask women and lovers." "so fräulein von tessenau is the happy bride?" "the daughter of the old gentleman, yes--but she is a 'frau,' a young widow. her name is von tessenau, because she was married to a cousin. it seems that she lost her husband after a brief married life, for she is still very young, scarcely twenty-two. a beautiful, gentle lady and still looks quite girlish. but i must hurry up these easy-going mynheers." he turned to the customs officers and paid them the required duty. they left the steamer which now began to proceed at a much greater speed. notwithstanding this, moldenhauer was pacing up and down excitedly, now and then consulting timetables and pulling out his watch every five minutes. it was another cause that robbed berger of calm. "if it should be they?" the thought returned to him however often he might say: "nonsense! an old father and a young daughter--the conjunction is common enough--and i know nothing else about them. that i must often have heard the name tessenau tells rather against the supposition--for sendlingen would hardly have chosen the name of some austrian family for his pseudonym!" still his indefinite presentiment gave him no rest, and he at length went up to the captain! "i once," he began, "knew a family of von tessenau, and would be very pleased if i were perhaps unexpectedly to come across them here. the old gentleman, you say, comes from bavaria?" "yes, you must certainly be a countryman of his?" "no. i am an austrian." "then the two dialects must be very much alike for you speak just like him. that he comes from bavaria i know for certain. herr willem van der weyden told me so quite recently, and he must surely know, as he is to become his son-in-law." "who is the bridegroom?" "a capital fellow," replied the captain. "a man of magnificent build--no longer young, somewhere in the forties i should say, but stately, brave and capable--all who know him, praise him. he holds a high position in batavia, he is manager of the java mines. some ten months ago he came back to europe, after a long absence, on a year's furlough: to find a wife, people say. none seemed to please him however. then he came to arnhem where his brother is settled, and in an excursion in the country about, he accidentally got to know the young frau von tessenau at oosterdaal house, and fell in love with her. there seemed at first to be great obstacles in the way; at all events he was always very melancholy when he rode on my boat from arnhem to huissen. well one day he was very happy, the betrothal was solemnized, and now the wedding is to come off. yes," added the captain pleasantly, "when one is everlastingly taking the same journey, one gets to know people by degrees and kills time by sharing their joys and sorrows." "and is herr van der weyden going back to java again?" "yes, in a month from now, when his furlough will be up. he is naturally going to take his young wife with him, and the old gentleman is going to join them too. he has no other relations. the father and daughter lived hitherto in great retirement with an old house-keeper and an equally old man-servant. but if you are interested in the family, come and look over when we get to huissen. the old man-servant at least, will be at the landing-stage to receive the trunks, and perhaps herr von tessenau himself." "do you know what the man-servant is called?" berger's voice trembled at this question. "franz is his name." the captain did not notice how pale berger had become, how hastily he turned away. "no more room for doubt," he thought. but the doubt did rise again. that some details agreed, might only be a coincidence, and the name of the man-servant--such a common name--was not sufficient proof. besides how much was against the supposition! it was inconceivable that sendlingen should have deceived his future son-in-law and passed off victorine as a widow! "it would be outrageous to impute such a thing to him!" he thought. with growing impatience, he looked out for the landing-stage, the steamboat had long since left the river and was steaming along the narrow pannerden canal. the monotonous, fruitful, thoroughly dutch landscape extended far and wide; rich meadows on which cattle were pasturing; narrow canals, on which heavily laden boats drawn by horses on the banks, slowly made their way; on the horizon a few windmills lazily turned by their large sails. at length a few large, villa-like buildings came in sight. "that is huissen," said the captain. "we will see who is at the landing-stage." he produced a telescope. "right, there is the man-servant," he said, handing berger the telescope. "see if you know the man." berger only held the glass to his eye for a second and then handed it back to the captain. "no," he said, "i don't know him, it must be another family of von tessenau." he went down to the cabin and stayed there, till the boat had got well beyond the landing-stage. it had been franz. berger had to stay in london a week before his task was done. he left the completion of the agreement to his colleague, and began his journey home. at first he intended to go by dover and calais. but at the station in london he was overcome by his feelings; he could not let his friend depart forever without seeing him again. he went back by holland, and the next day was in arnhem. not until he was in the carriage which he had hired to take him to oosterdaal, was he visited by scruples, the same sort of feeling which a week before had kept him from remaining on the deck of the steamer. was it not indelicate and selfish to gratify his own longing at the price of deeply and painfully stirring up his friend's heart? sendlingen did not wish to see him again, otherwise he would have written and told him of his whereabouts. and what would he not feel if he was so suddenly reminded of the fatality of his life, if his wounds were suddenly torn open again just as they were beginning to heal? and when berger thought of victorine, he altogether lost courage to continue the journey. unfriendly,--nay it would be cruel, inhuman, to remind the newly-married girl of the misery of the past, and to plunge her in fatal embarrassment. the roof of the house was already visible in the distance above the tops of the trees, when these reflections overmastered berger. "stop, back to arnhem!" he ordered the driver. but that could not be done at once; the horses would have to be fed first, explained the driver. the carriage proceeded still nearer the house, and stopped at a little friendly-looking inn opposite the entrance to the avenue of poplars which led up to the door. while the driver drove into the yard, the landlady suggested to berger to take the refreshment he had ordered in front of the house. this, however, he declined and entered the inn-parlour. his remorse increased every minute, and he feared to be seen, if by chance one of the occupants of the house went by. sighing deeply, he looked out of the window at the driver leisurely unharnessing his horses. the landlady, a young, plump, little woman, tried to console him by telling him he would not have to wait more than an hour. she spoke in broken german; she had been maid to the young german lady up at the house, she said, and had learnt the language there. they were kind, good people at oosterdaal, the driver had told her that the gentleman was going to have driven there, why had he given up the idea? they would certainly be very glad to see a countryman again, even if he were only a slight acquaintance. no german had ever come to see them, not even at the wedding. the festivities had altogether been very quiet, but very nice. had the gentry no relations in germany then? "how can i tell you," replied berger impatiently. "i don't know them." "indeed?" she asked astonished. "then i suppose you have come to buy the house?" several people had been with that intention, she added, but herr von tessenau had already made it over to his son-in-law, and he to his brother, herr jan van der weyden. in a fortnight they were all going to batavia. the housekeeper, fräulein brigitta, too, and the old german man-servant. "but won't you go up to the house after all?" she asked again. before he could answer, however, she cried out: "there they come!" and flew to the window. a carriage went by at a leisurely trot. "do come here," cried the landlady. berger had retired deeper into the room, but he could still plainly see his friend. sendlingen was looking fresher and stronger than when he saw him last; but his hair had the silver-white hue of old age, although he could hardly have reached the middle of the fifties. but in the young, blooming, happy woman at his side, berger would scarcely have recognized his once unfortunate client, if he had met her under other circumstances. she was just laughingly bending forward and straightening the tie of her husband opposite her. the stately, fair-haired man smilingly submitted to the operation. "how happy they are!" cried the landlady. "but they deserve it. why the carriage is stopping," she cried, bending out of the window. "what an honour, they are going to come in." berger turned pale. but in the next instant he breathed again: the carriage drove on. "oh, no!" cried the landlady, "only franz has got down! good day!" she cried to the old man as he went by. "a glass of wine!" "no," answered franz. "i am only to tell you to come up to the house. but for the matter of that as i _am_ here----" then berger heard his footsteps approaching on the floor outside; the door was opened. "well, a glass of----" he began, but the words died on his lips. pale as death, he started back and stared at berger as if he had seen a ghost. "it is i, franz," said berger, himself very pale. "don't be afraid--i only want----" "you have come to warn us?" he exclaimed, trembling all over as he approached berger. "it is all discovered, is it not?" "no!" replied berger. "why, what is there to discover?" he made a sign to draw franz's attention to the landlady, who was inquisitively drinking in the scene. "i am glad to see you," he said meaningly. "i am going to continue my journey at once." "excuse me, marie," said franz, turning to her, "but i have something to say to this gentleman. he is an old acquaintance." "after all!" she cried, and left the room shaking her head. "she will listen," whispered berger. "come here, franz, and sit beside me." "oh, how terrified i am," he replied in the same whisper. "so people suspect nothing? it would have been frightful if misfortune had come now, now, when everything is going so well. certainly my fears were foolish; how should it be found out? we had arranged everything with such care: even the duplicate keys were not made at bolosch, but at dresden, where brigitta was waiting for us." "enough!" said berger, checking him. "i don't wish to know anything about it. how has baron sendlingen been since?" "bad enough at first!" replied franz. "we did not eat, nor sleep, and we fell into a worse decline than at bolosch--but it was perhaps less from the fear of discovery than from remorse. and yet we had only done, what had to be done--isn't that so, dr. berger?" berger looked on the ground and was silent. old franz sighed deeply. "if even you--" he began, but he interrupted himself and continued his story. "gradually we became calmer again. fear vanished though remorse remained, but for this too there was a salve in seeing how the poor child blossomed again. then we began to write a book. it deals with the punishment of--h'm. dr. berger----" "i know the work," said berger. "indeed? we did not put our name to it. well, while we were working at the book, we forgot our own sorrow, and later on, after the work had appeared and all the newspapers were saying that it would have great influence, there were moments when we seemed happy again. then came this business with the dutchman, and we got as sad and despairing as ever. but we took courage and told the man everything; our real name, and that we were only called von tessenau here----" "how did he come by this name?" asked berger. "it sounds so familiar to me." "probably because it is one of the many titles of the family. tessenau was the name of an estate in carinthia, which once belonged to the family. we were obliged to choose this name, because on settling here it was necessary to prove our identity to the police. well, we confessed this to herr willem and also what the young lady's plight was----" berger gave a sigh of relief. "we said to him: she is not called von tessenau because she was married to a cousin, but because we adopted the name here with the proper formalities. she was never married, she was betrayed by a scoundrel. that we said no more, nothing of the deed that brought her to prison, nothing of the way she was released--that, dr. berger, is surely excusable." "of course!" assented berger. "and herr van der weyden?" "acted bravely and magnanimously, because he is a brave and magnanimous man, god bless him! he made her happy, her and himself. and now at length we got peace of heart once more. we are going to batavia. may it continue as heretofore!" "amen!" said berger deeply moved. "farewell, franz." "you are not going up to the house?" "no. don't tell him of my visit till you are on the sea. and say to him that i will always think of him with love and respect. with _respect_, franz, do not forget that!" he shook hands with the old servant, got into his carriage, and drove back to arnhem. chapter xv. three weeks later, on a glowing hot august day, the austrian minister of justice sat in his office, conferring with one of his subordinates, when an attendant brought him a card; the gentleman, he said, was waiting in the ante-room and would not be denied admittance. "sendlingen!" read the minister. "this is a surprise; it has not been known for years whether he was alive or dead. excuse me," he said to his companion, "but i cannot very well keep him waiting." the official departed, sendlingen was shown in. he was very pale; the expression of his features was gloomy, but resolved. the minister rose and offered his hand with the friendliest smile. "welcome to vienna," he cried. "i hope that you are completely recovered, and are coming to me to offer your services to the state once more." "no, your excellency," replied sendlingen. "forgive me, if i cannot take your hand. i will spare you having to regret it in the next instant. for i do not come to offer you my services as judge, but to deliver myself into the hands of justice. i am a criminal and desire to undergo the punishment due to me." the minister turned pale and drew back: "the man is mad," he thought. the thought must have been legible in his face, for sendlingen continued: "do not be afraid, i am in my senses. i have indeed abused my office in a fashion so monstrous, that perhaps nothing like it has ever happened before. i released from prison, by means of official keys, a condemned woman, who was to have been executed the next day, and suggested, furthered, and carried out her flight to a foreign country. her name was victorine lippert: the crime was done on the night of - february, ." "i remember the case," muttered the minister. "she escaped in the most mysterious way. but you! why should you have done this?" "a father saved his child: victorine is my natural daughter." the minister wiped the sweat from his forehead. "this is a frightful business." he once more searchingly looked at his uncomfortable visitor. "he certainly seems to be in his senses," he thought. "allow me to tell you how every thing came about?" the minister nodded and pointed to a chair. sendlingen remained standing. he began to narrate. clearly and quietly, in a hollow, monotonous voice, he told of his relations with herminie lippert, then how he had made the discovery in the lists of the criminal court, and of his struggles whether he should preside at the trial or not. "i had the strength to refuse," he continued. "my sense of duty conquered. sentence of death was pronounced. it was--and perhaps you will believe me although you hear it at such a moment, from such a man--it was a judicial murder, such as could have been decreed by a court of justice alone. and therefore my first thought was: against this wrong, wrong alone can help. i sought out the prison keys, and for some hours was firmly resolved to release my daughter. but then my sense of duty--perhaps more strictly speaking my egoism--conquered. for i said to myself that i, constituted as i was, could not commit this crime without some day making atonement for it. i knew quite well even then, that an hour would come in my life, like the present, and i could not find it in my heart to end as a criminal. but my conscience cried: 'then your child will die!' and so suicide seemed to me the only thing left. i was resolved to kill myself; whether i could not bring myself to it at the last moment, whether a chance saved me--i do not know: there is a veil cast over that hour that i have never since been able to pierce. i survived, i saw my daughter, and recovered my clearness of mind; the voice of nature had conquered. i now knew that it was highly probable that there was no means that could save us both, that the question was whether i should perish, or she, and i no longer doubted that it must be i. i was resolved to liberate her, and then to expiate my crime; but until extreme necessity compelled, i wanted to act according to law and justice. that i did so, my conduct proves when the supreme court ordered a fresh examination of the chief witness. everything depended upon that; i made over this inquiry also to another--who assuredly did not bring the truth to light. the supreme court confirmed the sentence of death; it was pronounced upon me, not upon my child; that extreme necessity had now arrived, i now knew that i must become a criminal, and only waited for the result of the counsel's petition for pardon, because the preparations for the act required time, and because i first wanted to save some men unjustly accused of political offences." "i remember, the workmen," said the minister. he still seemed dazed, it cost him an effort to follow the unhappy man's train of thought. "one thing only i do not understand," he slowly said, passing his hand over his forehead. "why did you not discover yourself to me, or why did you not appeal to the emperor for pardon?" "for two reasons," replied sendlingen. "i have all my life striven to execute justice without respect of persons. it was ever a tormenting thought to me that the aristocrat, the plutocrat, often receives where the law alone should decide, favours that would never fall to the lot of the poor and humble. and therefore it was painful to me to lay claim to such a favour for myself." "you are indeed a man of rare sense of justice," cried the minister. "and that such a fate should have, befallen you....." he paused. "is tragic indeed," supplemented sendlingen, his lips trembling. "certainly it is---- but i will not make, myself out better than i am; there was another reason why i hesitated to appeal to the emperor. what would have been the result, your excellency? commutation to penal servitude for life, or for twenty years. the mere announcement of this punishment would have so profoundly affected this weakly, broken-down girl, that she would scarcely have survived it, and if she had--a complete pardon could not have been attained for ten, for eight, in the most favourable case for five years, and she would not have lived to see it. i was persuaded of that, quite firmly persuaded, still," his voice became lower, "i too was only a human being. when i received the confirmation of the death-sentence by the emperor, cowardice and selfishness got the better of me, i journeyed to vienna--it was the th february." "the date of the attempt!" cried the minister. "what a frightful coincidence! thus does fate sport with the children of men." "so i thought at first!" replied sendlingen. "but then i saw that that coincidence had not decided my fate: it was sealed from the first. by my whole character and by all that had happened. in this sense there is a fate, in this sense what happens in the world _must_ happen, and my fate is only a proof of what takes place in millions of cases. i returned to bolosch and liberated my daughter. how i succeeded, i am prepared to tell my judges so far as my own share in the act is concerned. i had no accomplice among the prison officials. your excellency will believe me, although i can only call to witness my own word, the word of honour of a criminal!" "i believe you," said the minister. "you took the girl abroad?" "yes, and sought to make good my neglect. fate was gracious to me, my daughter is cared for. and i may now do that which i was from the first resolved to do, although i did not know when the day would be vouchsafed me to dare it--i may present myself to you, the supreme guardian of justice in this land, and say: 'deliver me to my judges!'" sendlingen was silent; the minister, too, at first could find no words. white as a ghost, he paced up and down the room. "but there can be no question of such a thing!" he cried at length. "for thousands of reasons! we are not barbarians!" "it can be and must be! i claim my right!" "but just consider!" cried the minister, wringing his hands. "it would be the most fearful blow that the dignity of justice could receive. a former chief-justice as a criminal in the dock! a man like you! besides you deserve no punishment! when i consider what you have suffered, how all this has come about--good god, i should be a monster if i were not moved, if i did not say: if this man were perhaps really a criminal, he has already atoned for it a thousand times over." "then you refuse me justice?" "it would be injustice! go in peace, my lord, and return to your daughter." "i cannot. i could not endure the pangs of my conscience! if you refuse to punish me, i shall openly accuse myself!" "great heavens! this only was wanting!" the minister drew nearer to him. "i beseech you, let these things rest in peace! do not bring upon that office of which you were so long an ornament, the worst blemish that could befal it. and your act would have still worse consequences: it would undermine the authority of the state. consider the times in which we live--the revolution is smouldering under its ashes." "i cannot help it, your excellency. do your duty voluntarily, and do not oblige me to compel you to it." the minister looked at him: in his face there was the quiet of immovable resolve. "a fanatic," he thought, "what shall i do with him?" he walked about the room in a state of irresolution. "my lord," he then began, "you would oblige the state to take defensive measures. accuse yourself openly by a pamphlet published abroad, and i would give out that you were mad. i should be believed, you need not doubt." "i do doubt it," replied sendlingen. "i should take care that there was no room left for any question as to my sanity. once more, and for the last time, i ask your excellency, to what court am i to surrender myself?" again the minister for a long while paced helplessly up and down. at length a saving thought seemed to occur to him. "be it so," he said. "do what you cannot help doing; we, on the other hand, will do what our duty commands. you naturally want to conceal where your daughter is now living?" sendlingen turned still paler and made no reply. "but we shall endeavor to find out, even if it should cost thousands, and if we should have to employ all the police in the world. we shall find your daughter and demand her extradition. there is no state that would refuse to deliver a legally condemned murderess! you must decide, my lord, whether this is to happen." sendlingen's face had grown deadly pale--a fit of shuddering shook his limbs. there was a long silence in the room, it endured perhaps five minutes. at length sendlingen muttered: "i submit to your excellency's will. may god forgive you what you have just done to me." the minister gave a sigh of relief. "i will take that on my conscience," he said. "i restore the father to his child. farewell, my lord." sendlingen did not take the proffered hand, he bowed silently and departed. * * * * * two days later dr. george berger received a letter of sendlingen's, dated from trieste. it briefly informed his friend of the purport of his interview with the minister of justice, and concluded as follows: "it is denied me to expiate my crime: it is impossible to me, a criminal, to go unpunished through life; so i am going to meet death. when you read this, all will be over. break the news to my daughter, who has already set out on her journey, as gently as possible; hide the truth from her, i shall help you by the manner in which i am doing the deed. and do not forget franz, he is waiting for me at cologne; i was only able to get quit of him under a pretext. "farewell, thou good and faithful friend, and do not condemn me. you once said to me: there must be a solution of these complications, a liberating solution. i do not know if there was any other, any better than that which has come to pass. for see, my child has received her just due, and so too has justice: with a higher price than that of his life, nobody can atone for a crime. and i--i have seen my child's happiness, i have honourably paid all my debts, and now i shall find peace forever--i too have received my due!... and now i may hope for your respect again! "farewell! and thanks a thousand times! "victor." berger, deeply moved, had just finished reading this letter, when his clerk entered with the morning paper in his hand. "have you read this, sir?" he asked. "baron sendlingen----" he laid the paper before his chief and this was what was in it: "a telegram from vienna brings us the sad news that baron von sendlingen, the retired chief justice and one of the most highly esteemed men in austria, fell overboard while proceeding by the lloyd steamer last night from trieste to venice. he was on deck late in the evening and has not been seen since; very likely, while leaning too far over the bulwarks, a sudden giddiness may have seized him so that he fell into the sea and disappeared. the idea of suicide cannot for personal reasons be entertained for a moment; the last person he spoke to, the captain of the steamer, testifies to the cheerful demeanour of the deceased. he leaves no family, but everyone who knew him will mourn him. "all honour to his memory!" "all honour to his memory!" muttered berger, burying his face in his hands. the end. the life of john marshall standard library edition in four volumes volume iii [illustration: john marshall from the portrait by chester harding] the life of john marshall by albert j. beveridge volume iii conflict and construction - [illustration] boston and new york houghton mifflin company the riverside press cambridge copyright, , by albert j. beveridge all rights reserved preface marshall's great constitutional opinions grew out of, or were addressed to, serious public conditions, national in extent. in these volumes the effort is made to relate the circumstances that required him to give to the country those marvelous state papers: for marshall's opinions were nothing less than state papers and of the first rank. in order to understand the full meaning of his deliverances and to estimate the just value of his labors, it is necessary to know the historical sources of his foremost expositions of the constitution, and the historical purposes they were intended to accomplish. without such knowledge, marshall's finest pronouncements become mere legal utterances, important, to be sure, but colorless and unattractive. it is worthy of repetition, even in a preface, that the history of the times is a part of his greatest opinions; and that, in the treatment of them a résumé of the events that produced them must be given. for example, the decision of marbury _vs._ madison, at the time and in the manner it was rendered, was compelled by the political situation then existing, unless the principle of judicial supremacy over legislation was to be abandoned. the judiciary debate of in congress--one of the most brilliant as well as most important legislative engagements in parliamentary history--can no more be overlooked by the student of american constitutional development, than the opinion of marshall in marbury _vs._ madison can be disregarded. again, in cohens _vs._ virginia, the chief justice rises to heights of exalted--almost emotional--eloquence. yet the case itself was hardly more than a police court controversy. if the trivial fine of itinerant peddlars of lottery tickets were alone involved, marshall's splendid passages become unnecessary and, indeed, pompous rhetoric. but when the curtains of history are raised, we see the heroic part that marshall played and realize the meaning of his powerful language. while marshall's opinion in m'culloch _vs._ maryland, even taken by itself, is a major treatise on constitutional government, it becomes a fascinating chapter in an engaging story, when read in connection with an account of the situation which compelled that outgiving. the same thing is true of his other historic utterances. indeed, it may be said that his weightiest opinions were interlocking parts of one great drama. much space has been given to the conspiracy and trials of aaron burr. the combined story of that adventure and of those prosecutions has not hitherto been told. in the conduct of the burr trials, marshall appears in a more intimate and personal fashion than in any other phase of his judicial career; the entire series of events that make up that page of our history is a striking example of the manipulation of public opinion by astute politicians, and is, therefore, useful for the self-guidance of american democracy. most important of all, the culminating result of this dramatic episode was the definitive establishment of the american law of treason. in narrating the work of a jurist, the temptation is very strong to engage in legal discussion, and to cite and comment upon the decisions of other courts and the opinions of other judges. this, however, would be the very negation of biography; nor would it add anything of interest or enlightenment to the reader. such information and analysis are given fully in the various books on constitutional law and history, in the annotated reports, and in the encyclopædias of law upon the shelves of every lawyer. care, therefore, has been taken to avoid making any part of the _life of john marshall_ a legal treatise. the manuscript of these volumes has been read by professor edward channing of harvard; professor max farrand of yale; professor edward s. corwin of princeton; professor william e. dodd of chicago university; professor clarence w. alvord of the university of illinois; professor james a. woodburn of indiana university; professor charles h. ambler of the university of west virginia; professor archibald henderson of the university of north carolina; professor d. r. anderson of richmond (va.) college; and dr. h. j. eckenrode of richmond, virginia. the manuscript of the third volume has been read by professor charles a. beard of new york; dr. samuel eliot morison of harvard; and mr. harold j. laski of harvard. the manuscript of both the third and fourth volumes has been read, from the lawyer's point of view, by mr. arthur lord of boston, president of the massachusetts bar association, and by mr. charles martindale of indianapolis. the chapters on the burr conspiracy and trials have been read by professor walter flavius mccaleb of new york; professor isaac joslin cox of the university of cincinnati; and mr. samuel h. wandell of new york. chapter three of volume three (marbury _vs._ madison) has been read by the honorable oliver wendell holmes, associate justice of the supreme court of the united states; by the honorable philander chase knox, united states senator; and by mr. james m. beck of new york. other special chapters have been read by the honorable henry cabot lodge, united states senator; by professor j. franklin jameson of the department of historical research of the carnegie institution of washington; by professor charles h. haskins of harvard; by dr. william draper lewis of philadelphia, former dean of the law school of the university of pennsylvania; and by mr. w. b. bryan of washington. all of these gentlemen have made valuable suggestions of which i have availed myself, and i gratefully acknowledge my indebtedness to them. the responsibility for everything in these volumes, however, is, of course, exclusively mine; and, in stating my appreciation of the comment and criticism with which i have been favored, i do not wish to be relieved of my burden by allowing the inference that any part of it should be assigned to others. i also owe it to myself again to express my heavy obligation to mr. worthington chauncey ford, editor of the massachusetts historical society. as was the case in the preparation of the first two volumes of this work, mr. ford has extended to me the resources of his ripe scholarship; while his wise counsel, steady encouragement, and unselfish assistance, have been invaluable in the prosecution of a long and exacting task. i also again acknowledge my indebtedness to mr. lindsay swift, editor of the boston public library, who has read with critical care not only the many drafts of the manuscript, but also the proofs of the entire work. mr. swift has given, unstintedly, his rare literary taste and critical accomplishment to the examination of these pages. i also tender my hearty thanks to dr. gardner weld allen of boston, who has generously directed the preparation of the bibliography and personally revised it. mr. david maydole matteson of cambridge, massachusetts, has made the index of these volumes as he made that of the first two volumes, and has combined both indexes into one. in rendering this service, mr. matteson has also searched for points where text and notes could be made more accurate; and i wish to express my appreciation of his kindness. my thanks are also owing to the staff of the riverside press, and particularly to mr. lanius d. evans, to whose keen interest and watchful care in the production of this work i am indebted for much of whatever exactitude it may possess. the manuscript sources have been acknowledged, in all instances, in the footnotes where references to them have been made, except in the case of the letters of marshall to his relatives, for which i again thank those descendants and connections of the chief justice named in the preface to volumes one and two. the hopkinson manuscripts are in the possession of mr. edward hopkinson of philadelphia, to whom i am indebted for the privilege of inspecting this valuable source and for furnishing me with copies of important letters. in preparing these volumes, mr. a. p. c. griffin, assistant librarian, and mr. john clement fitzpatrick, of the manuscript division of the library of congress, have been even more obliging, if possible, than they were in the preparation of the first part of this work. the officers and their assistants of the boston public library, the boston athenæum, the massachusetts state library, the massachusetts historical society, the pennsylvania historical society, the virginia state library, the indiana state library, and the indianapolis city library, have assisted whole-heartedly in the performance of my labors; and i am glad of the opportunity to thank all of them for their interest and help. albert j. beveridge contents i. democracy judiciary the national capital an unsightly "village in the woods"-- difficulty and danger of driving through the streets-- habits of the population--taverns, shops, and dwellings-- warring interests--a miniature of the country--meaning of the republican victory of --anger, chagrin, and despair of the federalists--marshall's views of the political situation-- he begins to strengthen the supreme court--the republican programme of demolition--jefferson's fear and hatred of the national judiciary--the conduct of the national judges gives jefferson his opportunity--their arrogance, harshness, and partisanship--political charges to grand juries--arbitrary application of the common law--jefferson makes it a political issue--rigorous execution of the sedition law becomes hateful to the people--the picturesque and historic trials that made the national judiciary unpopular--the trial and conviction of matthew lyon; of thomas cooper; of john fries; of isaac williams; of james t. callender; of thomas and abijah adams-- lawyers for fries and callender abandon the cases and leave the court-rooms--the famous virginia and kentucky resolutions raise the fundamental question as to the power that can interpret the constitution--jefferson plans the assault on the national judiciary. ii. the assault on the judiciary the assault on the judiciary begins--intense excitement of political parties--message on the judiciary that jefferson sent to congress--message he did not send--the federalists fear the destruction of the national judiciary--the grave defects of the ellsworth judiciary act of --the excellent federalist judiciary act of --the republicans determined to repeal it--the great judiciary debate begins in the senate--the federalists assert the exclusive power of the supreme court to decide on the constitutionality of acts of congress--the dramatic language of senator gouverneur morris--the republican senators evade the issue--the federalist senators press it--aaron burr takes his seat as vice-president--his fateful judiciary vote--senator john breckenridge denies the supervisory power of the supreme court over legislation--the debate in the house-- comments of the press--extravagant speeches--appearance and characteristics of john randolph of roanoke--the federalists hint resistance--the lamentations of the federalist newspapers--the republicans repeal the federalist judiciary act--they also suspend the sessions of the supreme court for fourteen months--this done to prevent marshall from overthrowing the republican repeal of the federalist judiciary act of --marshall proposes to his colleagues on the bench that they refuse to sit as circuit judges--they reject his proposal--the new england federalist leaders begin to talk secession--the jubilation of the republican press: "huzza for the _washington judiciary_!" iii. marbury versus madison power of the judiciary over legislation the supreme issue-- federalist majorities in state legislatures assert that supreme court can annul acts of congress--republican minorities vigorously resist the doctrine of judiciary supremacy--republican strength grows rapidly--critical situation before the decision of marbury _vs._ madison-- power of the supreme court must be promptly asserted or permanently abandoned--marshall confronts a serious dilemma--escape from it apparently impossible--republicans expect him to decide against madison--they threaten impeachment--marshall delivers his celebrated opinion--his reasoning on the power of the judiciary merely repeats federalist arguments in the judiciary debate--he persuades his associates on the supreme bench that section of the ellsworth judiciary act is unconstitutional--startling boldness of his conception--history of section -- drawn by framers of the constitution and never before questioned--marshall's opinion excites no immediate comment-- jefferson does not attack it until after his reëlection-- republican opposition to the judiciary apparently subsides-- cause of this--purchase of louisiana--jefferson compelled to take "unconstitutional" action--he counsels secrecy-- the new england federalist secession movement gains strength--jefferson reëlected--impeachment the next move. iv. impeachment republicans plan to subjugate the judiciary--federalist judges to be ousted and republicans put in their places-- marshall's decision in united states _vs._ fisher--the republican impeachment programme carried out--the trial and the conviction of judge addison--the removal of judge pickering--the house impeaches justice chase of the supreme court--republicans manipulate public opinion--the articles of impeachment--federalists convinced that chase is doomed--marshall the chief object of attack--his alarm--he proposes radical method of reviewing decisions of the supreme court--reason for marshall's trepidation--the impeachment trial--burr presides--he is showered with favors by the administration--appearance of chase--his brilliant array of counsel--luther martin of maryland--examination of witnesses--marshall testifies--he makes an unfavorable impression: "too much caution; too much fear; too much cunning"--arguments of counsel--weakness of the house managers--they are overwhelmed by counsel for chase-- joseph hopkinson's brilliant appeal--he captivates the senate--nicholson's fatal admission--rodney's absurd speech--luther martin's great argument--randolph closes for the managers--he apostrophizes marshall--his pathetic breakdown--the senate votes--tense excitement in the chamber--chase acquitted--a determinative event in american history--independence of the national judiciary saved-- marshall for the first time secure in the office of chief justice. v. biographer marshall agrees to write the "life of washington"--he is unequipped for the task--his grotesque estimate of time, labor, and profits--jefferson is alarmed--declares that marshall is writing for "electioneering purposes"--postmasters as book agents--they take their cue from jefferson--rumor spreads that marshall's book is to be partisan--postmasters take few subscriptions--parson weems becomes chief solicitor for marshall's book--his amusing canvass--marshall is exasperatingly slow--subscribers are disgusted at delay-- first two volumes appear--public is dissatisfied--marshall is worried--he writes agitated letters--his publisher becomes disheartened--marshall resents criticism--the lamentable inadequacy of the first three volumes--fourth volume an improvement--marshall's heavy task in the writing of the last volume--he performs it skillfully--description of the foundation of political parties--treatment of the policies of washington's administrations--jefferson calls marshall's biography a "five-volume libel" and "a party diatribe"--he seeks an author to answer marshall--he resolves to publish his "anas" chiefly as a reply to marshall--he bitterly attacks him and the biography-- other criticisms of marshall's work--his lifelong worry over the imperfections of the first edition--he decides to revise it--he devotes nearly twenty years to the task-- work on the supreme bench while writing the first edition. vi. the burr conspiracy remarkable effect on the senate of burr's farewell speech-- his desperate plight--stanchness of friends--jefferson's animosity--unparalleled combination against burr--he runs for governor of new york and is defeated--hamilton's lifelong pursuit of burr--the historic duel--dismemberment of the union long and generally discussed--washington's apprehensions in --jefferson in approves separation of western country "if it be for their good"--the new england secessionists ask british minister for support--he promises his aid--loyalty of the west--war with spain imminent--people anxious to "liberate" mexico--invasion of that country burr's long-cherished dream-- he tries to get money from great britain--he promises british minister to divide the republic--his first western journey-- the people receive him cordially--he is given remarkable ovation at nashville--andrew jackson's ardent friendship-- burr enthusiastically welcomed at new orleans--war with spain seemingly inevitable--burr plans to lead attack upon mexico when hostilities begin--spanish agents start rumors against him--eastern papers print sensational stories--burr returns to the capital--universal demand for war with spain--burr intrigues in washington--he again starts for the west-- he sends his famous cipher dispatch to wilkinson-- blennerhassett joins burr--they purchase four hundred thousand acres of land on the washita river--plan to settle this land if war not declared--wilkinson's eagerness for war--burr arraigned in the kentucky courts--he is discharged--cheered by the people--wilkinson determines to betray burr--he writes mysterious letters to the president-- jefferson issues his proclamation--wilkinson's reign of military lawlessness in new orleans--arrest of burr's agents, bollmann and swartwout--arrest of adair--prisoners sent under guard by ship to washington--the capital filled with wild rumors--jefferson's slight mention of the burr conspiracy in his annual message--congress demands explanation--jefferson sends special message denouncing burr: his "guilt is placed beyond question"--effect upon the public mind--burr already convicted in popular opinion. vii. the capture and arraignment bollmann and swartwout arrive at washington and are imprisoned--adair and alexander released by the court at baltimore for want of proof--eaton's affidavit against burr--bollmann and swartwout apply to supreme court for writ of habeas corpus--senate passes bill suspending the privilege of that writ--the house indignantly rejects the senate bill--marshall delivers the first of his series of opinions on treason--no evidence against bollmann and swartwout, and marshall discharges them--violent debate in the house--burr, ignorant of all, starts down the cumberland and mississippi with nine boats and a hundred men--first learns in mississippi of the proceedings against him-- voluntarily surrenders to the civil authorities--the mississippi grand jury refuses to indict burr, asserting that he is guilty of no offense--court refuses to discharge him--wilkinson's frantic efforts to seize or kill him--he goes into hiding--court forfeits his bond--he escapes--he is captured in alabama and confined to fort stoddert--becomes popular with both officers and men--taken under military guard for a thousand miles through the wilderness--arrives at richmond--marshall issues warrant for his delivery to the civil authorities--the first hearing before the chief justice--shall burr be committed for treason--the argument-- marshall's opinion--probable cause to suspect burr guilty of attempt to attack mexico; no evidence upon which to commit burr for treason--marshall indirectly criticizes jefferson-- burr's letters to his daughter--popular demand for burr's conviction and execution--jefferson writes bitterly of marshall--administration scours country for evidence against burr--expenditure of public money for this purpose-- burr gains friends in richmond--his attorneys become devoted to him--marshall attends the famous dinner at the house of john wickham, not knowing that burr is to be a guest--he is denounced for doing so--his state of mind. viii. administration versus court richmond thronged with visitors--court opens in the house of delegates--the hall packed--dress, appearance, and manner of spectators--dangerous state of the public temper--andrew jackson arrives and publicly denounces jefferson--he declares trial a "political persecution"--winfield scott's opinion: the president the real prosecutor--grand jury formed and instructed--believe burr guilty--burr's passionate reply to george hay, the district attorney--hay reports to jefferson-- burr's counsel denounce the administration's efforts to excite the public against him--attorneys on both sides speak to the public--hay moves to commit burr for treason-- marshall's difficult and dangerous situation--jefferson instructs hay--government offers testimony to support its motion--luther martin arrives--hay again reports to jefferson, who showers the district attorney with orders-- burr asks that the court grant a writ of subpoena _duces tecum_ directed to jefferson--martin boldly attacks the president--wirt's clever rejoinder--jefferson calls martin that "federal bulldog"--wants martin indicted--marshall's opinion on burr's motion for a subpoena _duces tecum_--he grants the writ--hay writes jefferson, who makes able and dignified reply--wilkinson arrives--washington irving's description of him--testimony before the grand jury--burr and blennerhassett indicted for treason and misdemeanor-- violent altercations between counsel. ix. what is treason? burr becomes popular with richmond society--swartwout challenges wilkinson to a duel--marshall sets the trial for august --the prisoner's life in the penitentiary--burr's letters to his daughter--marshall asks his associates on the supreme bench for their opinions--trial begins--difficulty of selecting a jury--everybody convinced of burr's guilt-- hay writes jefferson that marshall favors burr--at last jury is formed--the testimony--no overt act proven--burr's counsel move that collateral testimony shall not be received--counsel on both sides make powerful and brilliant arguments--marshall delivers his famous opinion on the law of constructive treason--jury returns verdict of not guilty--jefferson declares marshall is trying to keep evidence from the public--he directs hay to press trial on indictment for misdemeanor--burr demands letters called for in the subpoena _duces tecum_ to jefferson--president attempts to arrange a truce with the chief justice--hay despairs of convicting burr for misdemeanor--trial on this charge begins--many witnesses examined--prosecution collapses--jury returns a verdict of not guilty--hay moves to hold burr and his associates for treason committed in ohio--on this motion marshall throws the door wide open to all testimony--he delivers his last opinion in the burr trials--refuses to hold burr for treason, but commits him for misdemeanor alleged to have been committed in ohio--marshall adjourns court and hurries to the blue ridge--he writes judge peters of his situation during the trial--jefferson denounces marshall in message he prepares for congress--cabinet induces him to strike out the most emphatic language--marshall scathingly assailed in the press--the mob at baltimore-- marshall is hanged in effigy--the attempt to expel senator john smith of ohio from the senate--in his report on smith case, john quincy adams attacks marshall's rulings and opinion in the burr trials--grave foreign complications probably save marshall from impeachment. x. fraud and contract the corrupting of the georgia legislature in the winter of - --the methods of bribery--prominent men involved--law passed selling thirty-five million acres of land for less than one and one half cents an acre--land companies pay purchase price and receive deeds--merits of the transaction--poverty of georgia and power of the indians--invention of the cotton gin increases land values--period of mad land speculation--the origin of the contract clause in the constitution--wrath of the people of georgia on learning of the corrupt land legislation--they demand that the venal act be repealed-- james jackson leads the revolt--a new legislature elected-- it "rescinds" the land sale law--records of the transaction publicly burned--john randolph visits georgia--land companies sell millions of acres to innocent purchasers--citizens of boston purchase heavily--the news of georgia's repeal of the land sale act reaches new england--war of the pamphlets-- georgia cedes to the nation her claims to the disputed domain--five million acres are reserved to satisfy claimants-- the new england investors petition congress for relief-- jefferson's commissioners report in favor of the investors-- john randolph's furious assault on the relief bill--he attacks gideon granger, jefferson's postmaster-general, for lobbying on the floor of the house--the origin of the suit fletcher _vs._ peck--the nature of this litigation--the case is taken to the supreme court--marshall delivers his opinion-- legislation cannot be annulled merely because legislators voting for it were corrupted--"great principles of justice protect innocent purchasers"--the georgia land sale act, having been accepted, is a contract--the repeal of that act by the georgia legislature is a violation of the contract clause of the constitution--justice johnson dissents--he intimates that fletcher _vs._ peck "is a mere feigned case"-- meaning, purpose, and effect of marshall's opinion--in congress, randolph and troup of georgia mercilessly assail marshall and the supreme court--the fight for the passage of a bill to relieve the new england investors is renewed-- marshall's opinion and the decision of the court influential in securing the final passage of the measure. appendix a. the paragraph omitted from the final draft of jefferson's message to congress, december , b. letter of john taylor "of caroline" to john breckenridge containing arguments for the repeal of the federalist national judiciary act of c. cases of which chief justice marshall may have heard before he delivered his opinion in marbury _vs._ madison d. text, as generally accepted, of the cipher letter of aaron burr to james wilkinson, dated july , e. excerpt from speech of william wirt at the trial of aaron burr f. essential part of marshall's opinion on constructive treason delivered at the trial of aaron burr, on monday, august , works cited in this volume illustrations john marshall _colored frontispiece_ from a portrait by chester harding painted in washington in for the boston athenæum and still in the possession of that institution. gouverneur morris after a drawing by quenedey made in paris, or , in possession of his granddaughter, mrs. alfred maudslay. by permission of messrs. charles scribner's sons. associate justices sitting with marshall in the case of marbury versus madison: william cushing, william paterson, samuel chase, bushrod washington, alfred moore reproduced from etchings by max and albert rosenthal in hampton l. carson's history of _the supreme court of the united states_, by the courtesy of the lawyers' coöperative publishing company, rochester, new york. the etchings were made from originals as follows: cushing, from a pastel by sharpless, philadelphia, , in the possession of the family; paterson, from a painting in the possession of the family; chase, from a painting by charles wilson peale in independence hall, philadelphia; washington, from a painting by chester harding in the possession of the family; moore, from a miniature in the possession of mr. alfred moore waddell, of wilmington, north carolina. samuel chase from sanderson's _biography of the signers to the declaration of independence_, after a painting by jarvis. facsimile of a letter from john marshall to justice samuel chase dated january , , advocating appellate jurisdiction in the legislature john randolph from the painting by chester harding in the corcoran gallery of art, washington, d.c. facsimile of a part of marshall's list of corrections for his life of washington aaron burr from a portrait by john vanderlyn in the possession of mr. pierrepont edwards, of elizabeth, new jersey. james wilkinson after a print presented to the library of harvard university by lucien carr, esq., from a plate in the possession of colonel john mason brown, of louisville, kentucky, and now inserted in the library's copy of wilkinson's _memoirs_, philadelphia, , vol. . john marshall from a painting by richard n. brooke, on the gallery floor of the house of representatives at the capitol, washington, d.c. the state capitol, richmond, virginia from an old photograph showing its appearance at the time of the burr trial. it was not then stuccoed, and its bare brick walls were exposed between the columns or pilasters, giving it the appearance of a barnlike structure. luther martin from a portrait in independence hall, philadelphia. john wickham from a portrait in the possession of henry t. wickham, esq., of richmond, virginia. john marshall from the portrait by robert matthew sully, a nephew and pupil of thomas sully, in the possession of the corcoran gallery of art, washington, d.c. list of abbreviated titles most frequently cited _all references here are to the list of authorities at the end of this volume_ adams: _u.s._ _see_ adams, henry. history of the united states. ames. _see_ ames, fisher. works. channing: _jeff. system._ _see_ channing, edward. jeffersonian system, - . channing: _u.s._ _see_ channing, edward. history of the united states. _chase trial._ _see_ chase, samuel. trial. corwin. _see_ corwin, edward samuel. doctrine of judicial review. cutler. _see_ cutler, william parker, and julia perkins. life, journals, and correspondence of manasseh cutler. dillon. _see_ marshall, john. life, character, and judicial services. edited by john forrest dillon. _eaton_: prentiss. _see_ eaton, william. life. _jay_: johnston. _see_ jay, john. correspondence and public papers. _jefferson writings_: washington. _see_ jefferson, thomas, writings. edited by henry augustine washington. king. _see_ king, rufus. life and correspondence. mccaleb. _see_ mccaleb, walter flavius. aaron burr conspiracy. mcmaster: _u.s._ _see_ mcmaster, john bach. history of the people of the united states. marshall. _see_ marshall, john. life of george washington. _memoirs, j. q. a._: adams. _see_ adams, john quincy. memoirs. morris. _see_ morris, gouverneur. diary and letters. _n.e. federalism_: adams. _see_ new-england federalism, - , documents relating to. edited by henry adams. plumer. _see_ plumer, william. life. _priv. corres._: colton. _see_ clay, henry. private correspondence. edited by calvin colton. _records fed. conv._: farrand. _see_ records of the federal convention of . story. _see_ story, joseph. life and letters. _trials of smith and ogden._ _see_ smith, william steuben, and ogden, samuel gouverneur. trials for misdemeanors. wharton: _social life_. _see_ wharton, anne hollingsworth. social life in the early republic. wharton: _state trials_. _see_ wharton, francis. state trials of the united states during the administrations of washington and adams. wilkinson: _memoirs_. _see_ wilkinson, james. memoirs of my own times. _works_: colton. _see_ clay, henry. works. _works_: ford. _see_ jefferson, thomas. works. federal edition. edited by paul leicester ford. _writings, j. q. a._: ford. _see_ adams, john quincy. writings. edited by worthington chauncey ford. the life of john marshall the life of john marshall chapter i democracy: judiciary rigorous law is often rigorous injustice. (terence.) the federalists have retired into the judiciary as a stronghold, and from that battery all the works of republicanism are to be battered down. (jefferson.) there will be neither justice nor stability in any system, if some material parts of it are not independent of popular control. (george cabot.) a strange sight met the eye of the traveler who, aboard one of the little river sailboats of the time, reached the stretches of the sleepy potomac separating alexandria and georgetown. a wide swamp extended inland from a modest hill on the east to a still lower elevation of land about a mile to the west.[ ] between the river and morass a long flat tract bore clumps of great trees, mostly tulip poplars, giving, when seen from a distance, the appearance of "a fine park."[ ] upon the hill stood a partly constructed white stone building, mammoth in plan. the slight elevation north of the wide slough was the site of an apparently finished edifice of the same material, noble in its dimensions and with beautiful, simple lines,[ ] but "surrounded with a rough rail fence or feet high unfit for a decent barnyard."[ ] from the river nothing could be seen beyond the groves near the banks of the stream except the two great buildings and the splendid trees which thickened into a seemingly dense forest upon the higher ground to the northward.[ ] on landing and making one's way through the underbrush to the foot of the eastern hill, and up the gullies that seamed its sides thick with trees and tangled wild grapevines,[ ] one finally reached the immense unfinished structure that attracted attention from the river. upon its walls laborers were languidly at work. clustered around it were fifteen or sixteen wooden houses. seven or eight of these were boarding-houses, each having as many as ten or a dozen rooms all told. the others were little affairs of rough lumber, some of them hardly better than shanties. one was a tailor shop; in another a shoemaker plied his trade; a third contained a printer with his hand press and types, while a washerwoman occupied another; and in the others there was a grocery shop, a pamphlets-and-stationery shop, a little dry-goods shop, and an oyster shop. no other human habitation of any kind appeared for three quarters of a mile.[ ] a broad and perfectly straight clearing had been made across the swamp between the eastern hill and the big white house more than a mile away to the westward. in the middle of this long opening ran a roadway, full of stumps, broken by deep mud holes in the rainy season, and almost equally deep with dust when the days were dry. on either border was a path or "walk" made firm at places by pieces of stone; though even this "extended but a little way." alder bushes grew in the unused spaces of this thoroughfare, and in the depressions stagnant water stood in malarial pools, breeding myriads of mosquitoes. a sluggish stream meandered across this avenue and broadened into the marsh.[ ] a few small houses, some of brick and some of wood, stood on the edge of this long, broad embryo street. near the large stone building at its western end were four or five structures of red brick, looking much like ungainly warehouses. farther westward on the potomac hills was a small but pretentious town with its many capacious brick and stone residences, some of them excellent in their architecture and erected solidly by skilled workmen.[ ] other openings in the forest had been cut at various places in the wide area east of the main highway that connected the two principal structures already described. along these forest avenues were scattered houses of various materials, some finished and some in the process of erection.[ ] here and there unsightly gravel pits and an occasional brick kiln added to the raw unloveliness of the whole. such was the city of washington, with georgetown near by, when thomas jefferson became president and john marshall chief justice of the united states--the capitol, pennsylvania avenue, the "executive mansion" or "president's palace," the department buildings near it, the residences, shops, hostelries, and streets. it was a picture of sprawling aimlessness, confusion, inconvenience, and utter discomfort. when considering the events that took place in the national capital as narrated in these volumes,--the debates in congress, the proclamations of presidents, the opinions of judges, the intrigues of politicians,--when witnessing the scenes in which marshall and jefferson and randolph and burr and pinckney and webster were actors, we must think of washington as a dismal place, where few and unattractive houses were scattered along muddy openings in the forests. there was on paper a harmonious plan of a splendid city, but the realization of that plan had scarcely begun. as a situation for living, the capital of the new nation was, declared gallatin, a "hateful place."[ ] most of the houses were "small miserable huts" which, as wolcott informed his wife, "present an awful contrast to the public buildings."[ ] aside from an increase in the number of residences and shops, the "federal city" remained in this state for many years. "the _chuck_ holes were not _bad_," wrote otis of a journey out of washington in ; "that is to say they were none of them much deeper than the hubs of the hinder wheels. they were however exceedingly frequent."[ ] pennsylvania avenue was, at this time, merely a stretch of "yellow, tenacious mud,"[ ] or dust so deep and fine that, when stirred by the wind, it made near-by objects invisible.[ ] and so this street remained for decades. long after the national government was removed to washington, the carriage of a diplomat became mired up to the axles in the sticky clay within four blocks of the president's residence and its occupant had to abandon the vehicle. john quincy adams records in his diary, april , , that on returning from a dinner the street was in such condition that "our carriage in coming for us ... was overset, the harness broken. we got home with difficulty, twice being on the point of oversetting, and at the treasury office corner we were both obliged to get out ... in the mud.... it was a mercy that we all got home with whole bones."[ ] fever and other malarial ills were universal at certain seasons of the year.[ ] "no one, from the north or from the high country of the south, can pass the months of august and september there without intermittent or bilious fever," records king in .[ ] provisions were scarce and alexandria, across the river, was the principal source of supplies.[ ] "my god! what have i done to reside in such a city," exclaimed a french diplomat.[ ] some months after the chase impeachment[ ] senator plumer described washington as "a little village in the midst of the woods."[ ] "here i am in the wilderness of washington," wrote joseph story in .[ ] except a small catholic chapel there was only one church building in the entire city, and this tiny wooden sanctuary was attended by a congregation which seldom exceeded twenty persons.[ ] this absence of churches was entirely in keeping with the inclination of people of fashion. the first republican administration came, testifies winfield scott, in "the spring tide of infidelity.... at school and college, most bright boys, of that day, affected to regard religion as base superstition or gross hypocricy."[ ] most of the senators and representatives of the early congresses were crowded into the boarding-houses adjacent to the capitol, two and sometimes more men sharing the same bedroom. at conrad and mcmunn's boarding-house, where gallatin lived when he was in the house, and where jefferson boarded up to the time of his inauguration, the charge was fifteen dollars a week, which included service, "wood, candles and liquors."[ ] board at the indian queen cost one dollar and fifty cents a day, "brandy and whisky being free."[ ] in some such inn the new chief justice of the united states, john marshall, at first, found lodging. everybody ate at one long table. at conrad and mcmunn's more than thirty men would sit down at the same time, and jefferson, who lived there while he was vice-president, had the coldest and lowest place at the table; nor was a better seat offered him on the day when he took the oath of office as chief magistrate of the republic.[ ] those who had to rent houses and maintain establishments were in distressing case.[ ] so lacking were the most ordinary conveniences of life that a proposal was made in congress, toward the close of jefferson's first administration, to remove the capital to baltimore.[ ] an alternative suggestion was that the white house should be occupied by congress and a cheaper building erected for the presidential residence.[ ] more than three thousand people drawn hither by the establishment of the seat of government managed to exist in "this desert city."[ ] one fifth of these were negro slaves.[ ] the population was made up of people from distant states and foreign countries[ ]--the adventurous, the curious, the restless, the improvident. the "city" had more than the usual proportion of the poor and vagrant who, "so far as i can judge," said wolcott, "live like fishes by eating each other."[ ] the sight of washington filled thomas moore, the british poet, with contempt. "this embryo capital, where fancy sees squares in morasses, obelisks in trees; where second-sighted seers, even now, adorn with shrines unbuilt and heroes yet unborn, though nought but woods and jefferson they see, where streets should run and sages _ought_ to be."[ ] yet some officials managed to distill pleasure from materials which one would not expect to find in so crude a situation. champagne, it appears, was plentiful. when jefferson became president, that connoisseur of liquid delights[ ] took good care that the "executive mansion" was well supplied with the choicest brands of this and many other wines.[ ] senator plumer testifies that, at one of jefferson's dinners, "the wine was the best i ever drank, particularly the champagne which was indeed delicious."[ ] in fact, repasts where champagne was served seem to have been a favorite source of enjoyment and relaxation.[ ] scattered, unformed, uncouth as washington was, and unhappy and intolerable as were the conditions of living there, the government of the city was torn by warring interests. one would have thought that the very difficulties of their situation would have compelled some harmony of action to bring about needed improvements. instead of this, each little section of the city fought for itself and was antagonistic to the others. that part which lay near the white house[ ] strove exclusively for its own advantage. the same was true of those who lived or owned property about capitol hill. there was, too, an "alexandria interest" and a "georgetown interest." these were constantly quarreling and each was irreconcilable with the other.[ ] in all respects the capital during the first decades of the nineteenth century was a representation in miniature of the embryo nation itself. physical conditions throughout the country were practically the same as at the time of the adoption of the constitution; and popular knowledge and habits of thought had improved but slightly.[ ] a greater number of newspapers, however, had profoundly affected public sentiment, and democratic views and conduct had become riotously dominant. the defeated and despairing federalists viewed the situation with anger and foreboding. of all federalists john marshall and george cabot were the calmest and wisest. yet even they looked with gloom upon the future. "there are some appearances which surprize me," wrote marshall on the morning of jefferson's inauguration to his intimate friend, charles cotesworth pinckney. "i wish, however, more than i hope that the public prosperity & happiness will sustain no diminution under democratic guidance. the democrats are divided into speculative theorists & absolute terrorists. with the latter i am disposed to class mr. jefferson. if he ranges himself with them it is not difficult to foresee that much difficulty is in store for our country--if he does not, they will soon become his enemies and calumniators."[ ] after jefferson had been president for four months, cabot thus interpreted the republican victory of : "we are doomed to suffer all the evils of _excessive_ democracy through the united states.... maratists and robespierrians everywhere raise their heads.... there will be neither justice nor stability in any system, if some material parts of it are not independent of popular control"[ ]--an opinion which marshall, speaking for the supreme court of the nation, was soon to announce. joseph hale wrote to king that jefferson's election meant the triumph of "the wild principles of uproar & misrule" which would produce "anarchy."[ ] sedgwick advised our minister at london: "the aristocracy of virtue is destroyed."[ ] in the course of a characteristic federalist speech theodore dwight exclaimed: "the great object of jacobinism is ... to force mankind back into a savage state.... we have a country governed by blockheads and knaves; our wives and daughters are thrown into the stews.... can the imagination paint anything more dreadful this side of hell."[ ] the keen-eyed and thoughtful john quincy adams was of the opinion that "the basis of it all is democratic popularity.... there never was a system of measures [federalist] more completely and irrevocably abandoned and rejected by the popular voice.... its restoration would be as absurd as to undertake the resurrection of a carcass seven years in its grave."[ ] a federalist in the _commercial gazette_ of boston,[ ] in an article entitled "calm reflections," mildly stated that "democracy teems with fanaticism." democrats "love liberty ... and, like other lovers, they try their utmost to debauch ... their mistress." there was among the people a sort of diffused egotism which appears to have been the one characteristic common to americans of that period. the most ignorant and degraded american felt himself far superior to the most enlightened european. "behold the universe," wrote the chronicler of congress in . "see its four quarters filled with savages or slaves. out of nine hundred millions of human beings but four millions [americans] are free."[ ] william wirt describes the contrast of fact to pretension: "here and there a stately aristocratick palace, with all its appurtenances, strikes the view: while all around for many miles, no other buildings are to be seen but the little smoky huts and log cabins of poor, laborious, ignorant tenants. and what is very ridiculous, these tenants, while they approach _the great house_, cap in hand, with all the fearful trembling submission of the lowest feudal vassals, boast in their court-yards, with obstreperous exultation, that they live in a land of freemen, a land of equal liberty and equal rights."[ ] conservatives believed that the youthful republic was doomed; they could see only confusion, destruction, and decline. nor did any nation of the old world at that particular time present an example of composure and constructive organization. all europe was in a state of strained suspense during the interval of the artificial peace so soon to end. "i consider the whole civilized world as metal thrown back into the furnace to be melted over again," wrote fisher ames after the inevitable resumption of the war between france and great britain.[ ] "tremendous times in europe!" exclaimed jefferson when cannon again were thundering in every country of the old world. "how mighty this battle of lions & tygers! with what sensations should the common herd of cattle look upon it? with no partialities, certainly!"[ ] jefferson interpreted the black forebodings of the defeated conservatives as those of men who had been thwarted in the prosecution of evil designs: "the clergy, who have missed their union with the state, the anglo men, who have missed their union with england, the political adventurers who have lost the chance of swindling & plunder in the waste of public money, will never cease to bawl, on the breaking up of their sanctuary."[ ] of all the leading federalists, john marshall was the only one who refused to "bawl," at least in the public ear; and yet, as we have seen and shall again find, he entertained the gloomy views of his political associates. also, he held more firmly than any prominent man in america to the old-time federalist principle of nationalism--a principle which with despair he watched his party abandon.[ ] his whole being was fixed immovably upon the maintenance of order and constitutional authority. except for his letter to pinckney, marshall was silent amidst the clamor. all that now went forward passed before his regretful vision, and much of it he was making ready to meet and overcome with the affirmative opinions of constructive judicial statesmanship. meanwhile he discharged his duties--then very light--as chief justice. but in doing so, he quietly began to strengthen the supreme court. he did this by one of those acts of audacity that later marked the assumptions of power which rendered his career historic. for the first time the chief justice disregarded the custom of the delivery of opinions by the justices _seriatim_, and, instead, calmly assumed the function of announcing, himself, the views of that tribunal. thus marshall took the first step in impressing the country with the unity of the highest court of the nation. he began this practice in talbot _vs_. seeman, familiarly known as the case of the amelia,[ ] the first decided by the supreme court after he became chief justice. during our naval war with france an armed merchant ship, the amelia, owned by one chapeau rouge of hamburg, while homeward bound from calcutta, was taken by the french corvette, la diligente. the amelia's papers, officers, and crew were removed to the french vessel, a french crew placed in charge, and the captured ship was sent to st. domingo as a prize. on the way to that french port, she was recaptured by the american frigate, constitution, captain silas talbot, and ordered to new york for adjudication. the owner demanded ship and cargo without payment of the salvage claimed by talbot for his rescue. the case finally reached the supreme court. in the course of a long and careful opinion the chief justice held that, although there had been no formal declaration of war on france, yet particular acts of congress had authorized american warships to capture certain french vessels and had provided for the payment of salvage to the captors. virtually, then, we were at war with france. while the amelia was not a french craft, she was, when captured by captain talbot, "an armed vessel commanded and manned by frenchmen," and there was "probable cause to believe" that she was french. so her capture was lawful. still, the amelia was not, in fact, a french vessel, but the property of a neutral; and in taking her from the french, talbot had, in reality, rescued the ship and rendered a benefit to her owners for which he was entitled to salvage. for a decree of the french republic made it "extremely probable" that the amelia would be condemned by the french courts in st. domingo; and that decree, having been "promulgated" by the american government, must be considered by american courts "as an authenticated copy of a public law of france interesting to all nations." this, said marshall, was "the real and only question in the case." the first opinion delivered by marshall as chief justice announced, therefore, an important rule of international law and is of permanent value. marshall's next case[ ] involved complicated questions concerning lands in kentucky. like nearly all of his opinions, the one in this case is of no historical importance except that in it he announced for the second time the views of the court. in united states _vs_. schooner peggy,[ ] marshall declared that, since the constitution makes a treaty a "supreme law of the land," courts are as much bound by it as by an act of congress. this was the first time that principle was stated by the supreme court. another case[ ] concerned the law of practice and of evidence. this was the last case in which marshall delivered an opinion before the republican assault on the judiciary was made--the causes of which assault we are now to examine. at the time of his inauguration, jefferson apparently meant to carry out the bargain[ ] by which his election was made possible. "we are all republicans, we are all federalists," were the reassuring words with which he sought to quiet those who already were beginning to regret that they had yielded to his promises.[ ] even marshall was almost favorably impressed by the inaugural address. "i have administered the oath to the presdt.," he writes pinckney immediately after jefferson had been inducted into office. "his inauguration speech ... is in general well judged and conciliatory. it is in direct terms giving the lie to the violent party declamation which has elected him, but it is strongly characteristic of the general cast of this political theory."[ ] it is likely that, for the moment, the president intended to keep faith with the federalist leaders. but the republican multitude demanded the spoils of victory; and the republican leaders were not slow or soft-spoken in telling their chieftain that he must take those measures, the assurance of which had captivated the popular heart and given "the party of the people" a majority in both house and senate. thus the republican programme of demolition was begun. federalist taxes were, of course, to be abolished; the federalist mint dismantled; the federalist army disbanded; the federalist navy beached. above all, the federalist system of national courts was to be altered, the newly appointed federalist national judges ousted and their places given to republicans; and if this could not be accomplished, at least the national judiciary must be humbled and cowed. yet every step must be taken with circumspection--the cautious politician at the head of the government would see to that. no atom of party popularity[ ] must be jeopardized; on the contrary, republican strength must be increased at any cost, even at the temporary sacrifice of principle.[ ] unless these facts are borne in mind, the curious blending of fury and moderation--of violent attack and sudden quiescence--in the republican tactics during the first years of jefferson's administration are inexplicable. jefferson determined to strike first at the national judiciary. he hated it more than any other of the "abominations" of federalism. it was the only department of the government not yet under his control. his early distrust of executive authority, his suspicion of legislative power when his political opponents held it, were now combined against the national courts which he did not control. impotent and little respected as the supreme court had been and still was, jefferson nevertheless entertained an especial fear of it; and this feeling had been made personal by the thwarting of his cherished plan of appointing his lieutenant, spencer roane of virginia, chief justice of the united states.[ ] the elevation of his particular aversion, john marshall, to that office, had, he felt, wickedly robbed him of the opportunity to make the new regime harmonious; and, what was far worse, it had placed in that station of potential, if as yet undeveloped, power, one who, as jefferson had finally come to think, might make the high court of the nation a mighty force in the government, retard fundamental republican reforms, and even bring to naught measures dear to the republican heart. it seems probable that, at this time, jefferson was the only man who had taken marshall's measure correctly. his gentle manner, his friendliness and conviviality, no longer concealed from jefferson the courage and determination of his great relative; and jefferson doubtless saw that marshall, with his universally conceded ability, would find means to vitalize the national judiciary, and with his fearlessness, would employ those means. "the federalists," wrote jefferson, "have retired into the judiciary as a stronghold ... and from that battery all the works of republicanism are to be beaten down and erased."[ ] therefore that stronghold must be taken. never was a military plan more carefully devised than was the republican method of capturing it. jefferson would forthwith remove all federalist united states marshals and attorneys;[ ] he would get rid of the national judges whom adams had appointed under the judiciary act of .[ ] if this did not make those who remained on the national bench sufficiently tractable, the sword of impeachment would be held over their obstinate heads until terror of removal and disgrace should render them pliable to the dominant political will. thus by progressive stages the supreme court would be brought beneath the blade of the executioner and the obnoxious marshall decapitated or compelled to submit. to this agreeable course, so well adapted to his purposes, the president was hotly urged by the foremost leaders of his party. within two weeks after jefferson's inauguration, the able and determined william branch giles of virginia, faithfully interpreting the general republican sentiment, demanded "the removal of all its [the judiciary's] executive officers indiscriminately." this would get rid of the federalist marshals and clerks of the national courts; they had been and were, avowed giles, "the humble echoes" of the "vicious schemes" of the national judges, who had been "the most unblushing violators of constitutional restrictions."[ ] again giles expressed the will of his party: "the revolution [republican success in ] is incomplete so long as that strong fortress [the judiciary] is in possession of the enemy." he therefore insisted upon "the absolute repeal of the whole judiciary system."[ ] the federalist leaders quickly divined the first part of the republican purpose: "there is nothing which the [republican] party more anxiously wish than the destruction of the judicial arrangements made during the last session," wrote sedgwick.[ ] and hale, with dreary sarcasm, observed that "the independence of our judiciary is to be confirmed by being made wholly subservient to the will of the legislature & the caprice of executive visions."[ ] the judges themselves had invited the attack so soon to be made upon them.[ ] immediately after the government was established under the constitution, they took a position which disturbed a large part of the general public, and also awakened apprehensions in many serious minds. persons were haled before the national courts charged with offenses unknown to the national statutes and unnamed in the constitution; nevertheless, the national judges held that these were indictable and punishable under the common law of england.[ ] this was a substantial assumption of power. the judiciary avowed its right to pick and choose among the myriad of precedents which made up the common law, and to enforce such of them as, in the opinion of the national judges, ought to govern american citizens. in a manner that touched directly the lives and liberties of the people, therefore, the judges became law-givers as well as law-expounders. not without reason did the republicans of boston drink with loud cheers this toast: "the common law of england! may wholesome statutes soon root out this engine of oppression from america."[ ] the occasions that called forth this exercise of judicial authority were the violation of washington's neutrality proclamation, the violation of the treaty of peace with great britain, and the numberless threats to disregard both. from a strictly legal point of view, these indeed furnished the national courts with plausible reasons for the position they took. certainly the judges were earnestly patriotic and sincere in their belief that, although congress had not authorized it, nevertheless, that accumulation of british decisions, usages, and customs called "the common law" was a part of american national jurisprudence; and that, of a surety, the assertion of it in the national tribunals was indispensable to the suppression of crimes against the united states. in charging the national grand jury at richmond, may , , chief justice john jay first announced this doctrine, although not specifically naming the common law.[ ] two months later, justice james wilson claimed the same inclusive power in his address to the grand jury at philadelphia.[ ] in , joseph ravara, consul for genoa, was indicted in the united states district court of pennsylvania for sending an anonymous and threatening letter to the british minister and to other persons in order to extort money from them. there was not a word in any act of congress that referred even indirectly to such a misdemeanor, yet justices wilson and iredell of the supreme court, with judge peters of the district court, held that the court had jurisdiction,[ ] and at the trial chief justice jay and district judge peters held that the rash genoese could be tried and punished under the common law of england.[ ] three months later gideon henfield was brought to trial for the violation of the neutrality proclamation. the accused, a sailor from salem, massachusetts, had enlisted at charleston, south carolina, on a french privateer and was given a commission as an officer of the french republic. as such he preyed upon the vessels of the enemies of france. one morning in may, , captain henfield sailed into the port of philadelphia in charge of a british prize captured by the french privateer which he commanded. upon demand of the british minister, henfield was seized, indicted, and tried in the united states circuit court for the district of pennsylvania.[ ] in the absence of any national legislation covering the subject, justice wilson instructed the grand jury that henfield could, and should, be indicted and punished under british precedents.[ ] when the case was heard the charge of the court to the trial jury was to the same effect.[ ] the jury refused to convict.[ ] the verdict was "celebrated with extravagant marks of joy and exultation," records marshall in his account of this memorable trial. "it was universally asked," he says, "what law had been offended, and under what statute was the indictment supported? were the american people already prepared to give to a proclamation the force of a legislative act, and to subject themselves to the will of the executive? but if they were already sunk to such a state of degradation, were they to be punished for violating a proclamation which had not been published when the offense was committed, if indeed it could be termed an offense to engage with france, combating for liberty against the combined despots of europe?"[ ] in this wise, political passions were made to strengthen the general protest against riveting the common law of england upon the american people by judicial fiat and without authorization by the national legislature. isaac williams was indicted and tried in , in the united states circuit court for the district of connecticut, for violating our treaty with great britain by serving as a french naval officer. williams proved that he had for years been a citizen of france, having been "duly naturalized" in france, "renouncing his allegiance to all other countries, particularly to america, and taking an oath of allegiance to the republic of france." although these facts were admitted by counsel for the government, and although congress had not passed any statute covering such cases, chief justice oliver ellsworth practically instructed the jury that under the british common law williams must be found guilty. no american could cease to be a citizen of his own country and become a citizen or subject of another country, he said, "without the consent ... of the community."[ ] the chief justice announced as american law the doctrine then enforced by european nations--"born a subject, always a subject."[ ] so the defendant was convicted and sentenced "to pay a fine of a thousand dollars and to suffer four months imprisonment."[ ] these are examples of the application by the national courts of the common law of england in cases where congress had failed or refused to act. crime must be punished, said the judges; if congress would not make the necessary laws, the courts would act without statutory authority. until , when the supreme court put an end to this doctrine,[ ] the national courts, with one exception,[ ] continued to apply the common law to crimes and offenses which congress had refused to recognize as such, and for which american statutes made no provision. practically all of the national and many of the state judges were highly learned in the law, and, of course, drew their inspiration from british precedents and the british bench. indeed, some of them were more british than they were american.[ ] "let a stranger go into our courts," wrote tyler, "and he would almost believe himself in the court of the king's bench."[ ] this conduct of the national judiciary furnished jefferson with another of those "issues" of which that astute politician knew how to make such effective use. he quickly seized upon it, and with characteristic fervency of phrase used it as a powerful weapon against the federalist party. all the evil things accomplished by that organization of "monocrats," "aristocrats," and "monarchists"--the bank, the treaty, the sedition act, even the army and the navy--"have been solitary, inconsequential, timid things," avowed jefferson, "in comparison with the audacious, barefaced and sweeping pretension to a system of law for the u.s. without the adoption of their legislature, and so infinitely beyond their power to adopt."[ ] but if the national judges had caused alarm by treating the common law as though it were a statute of the united states without waiting for an act of congress to make it so, their manners and methods in the enforcement of the sedition act[ ] aroused against them an ever-increasing hostility. stories of their performances on the bench in such cases--their tones when speaking to counsel, to accused persons, and even to witnesses, their immoderate language, their sympathy with one of the european nations then at war and their animosity toward the other, their partisanship in cases on trial before them--tales made up from such material flew from mouth to mouth, until finally the very name and sight of national judges became obnoxious to most americans. in short, the assaults upon the national judiciary were made possible chiefly by the conduct of the national judges themselves.[ ] the first man convicted under the sedition law was a representative in congress, the notorious matthew lyon of vermont. he had charged president adams with a "continual grasp for power ... an unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice." also, lyon had permitted the publication of a letter to him from joel barlow, in which the president's address to the senate and the senate's response[ ] were referred to as "the bullying speech of your president" and "the stupid answer of your senate"; and expressed wonder "that the answer of both houses had not been an order to send him [adams] to the mad house."[ ] lyon was indicted under the accusation that he had tried "to stir up sedition and to bring the president and government of the united states into contempt." he declared that the jury was selected from his enemies.[ ] under the charge of justice paterson of the supreme court he was convicted. the court sentenced him to four months in jail and the payment of a fine of one thousand dollars.[ ] in the execution of the sentence, united states marshal jabez g. fitch used the prisoner cruelly. on the way to the jail at vergennes, vermont, he was repeatedly insulted. he was finally thrown into a filthy, stench-filled cell without a fireplace and with nothing "but the iron bars to keep the cold out." it was "the common receptacle for horse-thieves ... runaway negroes, or any kind of felons." he was subjected to the same kind of treatment that was accorded in those days to the lowest criminals.[ ] the people were deeply stirred by the fate of matthew lyon. quick to realize and respond to public feeling, jefferson wrote: "i know not which mortifies me most, that i should fear to write what i think, or my country bear such a state of things."[ ] one anthony haswell, editor of the _vermont gazette_ published at bennington, printed an advertisement of a lottery by which friends of lyon, who was a poor man, hoped to raise enough money to pay his fine. this advertisement was addressed "to the enemies of political persecutions in the western district of vermont." it was asserted that lyon "is holden by the oppressive hand of usurped power in a loathsome prison, deprived almost of the right of reason, and suffering all the indignities which can be heaped upon him by a hard-hearted savage, who has, to the disgrace of federalism, been elevated to a station where he can satiate his barbarity on the misery of his victims."[ ] the "savage" referred to was united states marshal fitch. in the same paper an excerpt was reprinted from the _aurora_ which declared that "the administration publically notified that tories ... were worthy of the confidence of the government."[ ] haswell was indicted for sedition. in defense he established the brutality with which lyon had been treated and proposed to prove by two witnesses not then present (general james drake of virginia, and james mchenry, president adams's secretary of war) that the government favored the occasional appointment of tories to office. justice paterson ruled that such evidence was inadmissible, and charged the jury that if haswell's intent was defamatory, he should be found guilty. thereupon he was convicted and sentenced to two months' imprisonment and the payment of a fine of two hundred dollars.[ ] dr. thomas cooper, editor of the _sunbury and northumberland gazette_ in pennsylvania, in the course of a political controversy declared in his paper that when, in the beginning of adams's administration, he had asked the president for an office, adams "was hardly in the infancy of political mistake; even those who doubted his capacity thought well of his intentions.... nor were we yet saddled with the expense of a permanent navy, or threatened ... with the existence of a standing army.... mr. adams ... had not yet interfered ... to influence the decisions of a court of justice."[ ] for this "attack" upon the president, cooper was indicted under the sedition law. conducting his own defense, he pointed out the issues that divided the two great parties, and insisted upon the propriety of such political criticism as that for which he had been indicted. cooper was himself learned in the law,[ ] and during the trial he applied for a subpoena _duces tecum_ to compel president adams to attend as a witness, bringing with him certain documents which cooper alleged to be necessary to his defense. in a rage justice samuel chase of the supreme court, before whom, with judge richard peters of the district court, the case was tried, refused to issue the writ. for this he was denounced by the republicans. in the trial of aaron burr, marshall was to issue this very writ to president thomas jefferson and, for doing so, to be rebuked, denounced, and abused by the very partisans who now assailed justice chase for refusing to grant it.[ ] justice chase charged the jury at intolerable length: "if a man attempts to destroy the confidence of the people in their officers ... he effectually saps the foundation of the government." it was plain that cooper "intended to provoke" the administration, for had he not admitted that, although he did not arraign the motives, he did mean "to censure the conduct of the president"? the offending editor's statement that "our credit is so low that we are obliged to borrow money at per cent. in time of peace," especially irritated the justice. "i cannot," he cried, "suppress my feelings at this gross attack upon the president." chase then told the jury that the conduct of france had "rendered a loan necessary"; that undoubtedly cooper had intended "to mislead the ignorant ... and to influence their votes on the next election." so cooper was convicted and sentenced "to pay a fine of four hundred dollars, to be imprisoned for six months, and at the end of that period to find surety for his good behavior himself in a thousand, and two sureties in five hundred dollars each."[ ] "almost every other country" had been "convulsed with ... war," desolated by "every species of vice and disorder" which left innocence without protection and encouraged "the basest crimes." only in america there was no "grievance to complain of." yet our government had been "as grossly abused as if it had been guilty of the vilest tyranny"--as if real "republicanism" could "only be found in the happy soil of france" where "liberty, like the religion of mahomet, is propagated by the sword." in the "bosom" of that nation "a dagger was concealed."[ ] in these terms spoke james iredell, associate justice of the supreme court, in addressing the grand jury for the district of pennsylvania. he was delivering the charge that resulted in the indictment for treason of john fries and others who had resisted the federalist land tax.[ ] the triumph of france had, of course, nothing whatever to do with the forcible protest of the pennsylvania farmers against what they felt to be federalist extortion; nevertheless upon the charge of justice iredell as to the law of treason, they were indicted and convicted for that gravest of all offenses. a new trial was granted because one of the jury, john rhoad, "had declared a prejudice against the prisoner after he was summoned as a juror."[ ] on april , , the second trial was held. this time justice chase presided. the facts were agreed to by counsel. before the jury had been sworn, chase threw on the table three papers in writing and announced that these contained the opinion of the judges upon the law of treason--one copy was for the counsel for the government, one for the defendant's counsel, and one for the jury. william lewis, leading attorney for fries, and one of the ablest members of the philadelphia bar,[ ] was enraged. he looked upon the paper, flung it from him, declaring that "his hand never should be polluted by a prejudicated opinion," and withdrew from the case, although chase tried to persuade him to "go on in any manner he liked." alexander j. dallas, the other counsel for fries, also withdrew, and the terrified prisoner was left to defend himself. the court told him that the judges, personally, would see that justice was done him. again fries and his accomplices were convicted under the charge of the court. "in an aweful and affecting manner"[ ] chase pronounced the sentence, which was that the condemned men should be "hanged by the neck _until dead_."[ ] the republicans furiously assailed this conviction and sentence. president adams pardoned fries and his associates, to the disgust and resentment of the federalist leaders.[ ] on both sides the entire proceeding was made a political issue. on the heels of this "repetition of outrage," as the republicans promptly labeled the condemnation of fries, trod the trial of james thompson callender for sedition, over which it was again the fate of the unlucky chase to preside. _the prospect before us_, written by callender under the encouragement of jefferson,[ ] contained a characteristically vicious screed against adams. his administration had been "a tempest of malignant passions"; his system had been "a french war, an american navy, a large standing army, an additional load of taxes." he "was a professed aristocrat and he had proved faithful and serviceable to the british interest" by sending marshall and his associates to france. in the president's speech to congress,[ ] "this hoary headed incendiary ... bawls to arms! then to arms!" callender was indicted for libel under the sedition law. before judge chase started for virginia, luther martin had given him a copy of callender's pamphlet, with the offensive passages underscored. during a session of the national court at annapolis, chase, in a "jocular conversation," had said that he would take callender's book with him to richmond, and that, "if virginia was not too depraved" to furnish a jury of respectable men, he would certainly punish callender. he would teach the lawyers of virginia the difference between the liberty and the licentiousness of the press.[ ] on the road to richmond, james triplett boarded the stage that carried the avenging justice of the supreme court. he told chase that callender had once been arrested in virginia as a vagrant. "it is a pity," replied chase, "that they had not hanged the rascal."[ ] but the people of virginia, because of their hatred of the sedition law, were ardent champions of callender. richmond lawyers were hostile to chase and were the bitter enemies of the statute which they knew he would enforce. jefferson was anxious that callender "should be substantially defended, whether in the first stages by public interference or private contributors."[ ] one ambitious young attorney, george hay, who seven years later was to act as prosecutor in the greatest trial at which john marshall ever presided,[ ] volunteered to defend callender, animated to this course by devotion to "the cause of the constitution," in spite of the fact that he "despised" his adopted client.[ ] william wirt was also inspired to offer his services in the interest of free speech. these virginia attorneys would show this tyrant of the national judiciary that the virginia bar could not be borne down.[ ] of all this the hot-spirited chase was advised; and he resolved to forestall the passionate young defenders of liberty. he was as witty as he was fearless, and throughout the trial brought down on hay and wirt the laughter of the spectators. but in the court-room there was one spectator who did not laugh. john marshall, then secretary of state, witnessed the proceedings[ ] with grave misgivings. chase frequently interrupted the defendant's counsel. "what," said he, "must there be a departure from common sense to find out a construction favorable" to callender? the justice declared that a legal point which hay attempted to make was "a wild notion."[ ] when a juror said that he had never seen the indictment or heard it read, chase declared that of course he could not have formed or delivered an opinion on the charges; and then denied the request that the indictment be read for the information of the juror. chase would not permit that eminent patriot and publicist, colonel john taylor of caroline, to testify that part of callender's statement was true; "no evidence is admissible," said the justice, "that does not ... justify the whole charge."[ ] william wirt, in addressing the jury, was arguing that if the jury believed the sedition act to be unconstitutional, and yet found callender guilty, they "would violate their oath." chase ordered him to sit down. the jury had no right to pass upon the constitutionality of the law--"such a power would be extremely dangerous. hear my words, i wish the world to know them." the justice then read a long and very able opinion which he had carefully prepared in anticipation that this point would be raised by the defense.[ ] after another interruption, in which chase referred to wirt as "the _young gentleman_" in a manner that vastly amused the audience, the discomfited lawyer, covered with confusion, abandoned the case. when hay, in his turn, was addressing the jury, chase twice interrupted him, asserting that the beardless attorney was not stating the law correctly. the reporter notes that thereupon "mr. hay folded up and put away his papers ... and refused to proceed." the justice begged him to go on, but hay indignantly stalked from the room. acting under the instructions of chase, callender was convicted. the court sentenced him to imprisonment for nine months, and to pay a fine of two hundred dollars.[ ] the proceedings at this trial were widely published. the growing indignation of the people at the courts rose to a dangerous point. the force of popular wrath was increased by the alarm of the bar, which generally had been the stanch supporter of the bench.[ ] hastening from richmond to new castle, delaware, justice chase emphasized the opinion now current that he was an american jeffreys and typical of the spirit of the whole national judiciary. upon opening court, he said that he had heard that there was a seditious newspaper in the state. he directed the united states attorney to search the files of all the papers that could be found, and to report any abusive language discovered. it was the haying season, and the grand jury, most of whom were farmers, asked to be discharged, since there was no business for them to transact. chase refused and held them until the next day, in order to have them return indictments against any printer that might have criticized the administration.[ ] but the prosecutor's investigation discovered nothing "treasonable" except a brief and unpleasant reference to chase himself. so ended the delaware visit of the ferret of the national judiciary. thus a popular conviction grew up that no man was safe who assumed to criticize national officials. the persecution of matthew lyon was recalled, and the punishment of other citizens in cases less widely known[ ] became the subject of common talk,--all adding to the growing popular wrath against the whole national judiciary. the people regarded those brought under the lash of justice as martyrs to the cause of free speech; and so, indeed, they were. the method of securing indictments and convictions also met with public condemnation. in many states the united states marshals selected what persons they pleased as members of the grand juries and trial juries. these officers of the national courts were, without exception, federalists; in many cases federalist politicians. when making up juries they selected only persons of the same manner of thinking as that of the marshals and judges themselves.[ ] so it was that the juries were nothing more than machines that registered the will, opinion, or even inclination of the national judges and the united states district attorneys. in short, in these prosecutions, trial by jury in any real sense was not to be had.[ ] certain state judges of the rabid federalist type, apostles of "the wise, the rich, and the good" political religion, were as insulting in their bearing, as immoderate in their speech, and as intolerant in their conduct as some of the national judges; and prosecutions in some state courts were as bad as the worst of those in the national tribunals. in boston, when the legislature of massachusetts was considering the kentucky and virginia resolutions, john bacon of berkshire, a republican state senator, and dr. aaron hill of cambridge, the leader of the republicans in the house, resisted the proposed answer of the federalist majority. both maintained the ground upon which republicans everywhere now stood--that any state might disregard an act of congress which it deemed unconstitutional.[ ] bacon and hill were supported by the solid republican membership of the massachusetts legislature, which the _columbian centinel_ of boston, a federalist organ, called a "contemptible minority," every member of which was "worse than an infidel."[ ] the _independent chronicle_, the republican newspaper of boston, observed that "it is difficult for the common capacities to conceive of a sovereignty so situated that the _sovereign shall have no right to decide on any invasion of his constitutional powers_." bacon's speech, said the _chronicle_, "has been read with delight by all true republicans, and will always stand as a monument of his firmness, patriotism, and integrity.... the name of an _american_ bacon will be handed down to the latest generations of freemen with high respect and gratitude, while the names of such as have aimed a _death wound_ to the constitution of the united states will rot _above ground_ and be unsavoury to the nostrils of every lover of republican freedom."[ ] the _massachusetts mercury_ of february , , reports that "on tuesday last ... chief justice dana ... commented on the contents of the _independent chronicle_ of the preceding day. he properly stated to the jury that though he was not a subscriber to the paper, he obtained _that one_ by accident, that if he was, his conscience would charge him with assisting to support a traitorous enmity to the government of his country." thereupon thomas adams, the publisher, and abijah adams, a younger brother employed in the office, were indicted under the common law for attempting "to bring the government into disrespect, hatred, and contempt," and for encouraging sedition. thomas adams was fatally ill and abijah only was brought to trial. under the instructions of the court he was convicted. in pronouncing sentence chief justice dana delivered a political lecture. the virginia and kentucky resolutions, he said, had attempted "to establish the monstrous position" that the individual states had the right to pass upon the constitutionality of acts of congress. he then gave a résumé of the reply of the majority of the massachusetts legislature to the virginia resolutions. this reply asserted that the decisions of all questions arising under the constitution and laws of the united states "are exclusively vested in the judicial courts of the united states," and that the sedition act was "wise and necessary, as an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of _perverting_ public opinion, and threatened to undermine the whole fabric of government." the irate judge declared that the _chronicle's_ criticism of this action of the majority of the legislature and its praise of the republican minority of that body was an "indecent and outrageous calumny." "censurable as the libel may be in itself," dana continued, the principles stated by adams's counsel in conducting his defense were equally "dangerous to public tranquility." these daring lawyers had actually maintained the principle of the liberty of the press. they had denied that an american citizen could be punished under the common law of england. "novel and disorganizing doctrines," exclaimed dana in the midst of a long argument to prove that the common law was operative in the united states.[ ] in view of the fact that abijah adams was not the author of the libel, nor even the publisher or editor of the _chronicle_, but was "the only person to whom the public can look for retribution," the court graciously sentenced him to only one month's imprisonment, but required him to find sureties for his good behavior for a year, and to pay the costs of the trial.[ ] alexander addison, the presiding judge of one of the pennsylvania state courts, was another federalist state judge whose judicial conduct and assaults from the bench upon democracy had helped to bring courts into disrepute. some of his charges to grand juries were nothing but denunciations of republican principles.[ ] his manner on the bench was imperious; he bullied counsel, browbeat witnesses, governed his associate judges, ruled juries. in one case,[ ] addison forbade the associate judge to address the jury, and prevented him from doing so.[ ] nor did the judges stop with lecturing everybody from the bench. carrying with them the authority of their exalted positions, more than one of them, notably justice chase and judge addison, took the stump in political campaigns and made partisan speeches.[ ] so it fell out that the manners, language, and conduct of the judges themselves, together with their use of the bench as a political rostrum, their partisanship as to the european belligerents, their merciless enforcement of the common law--aroused that public fear and hatred of the courts which gave jefferson and the republicans their opportunity. the questions which lay at the root of the republican assault upon the judiciary would not of themselves, and without the human and dramatic incidents of which the cases mentioned are examples, have wrought up among citizens that fighting spirit essential to a successful onslaught upon the national system of justice, which the federalists had made so completely their own.[ ] those basic questions thus brought theatrically before the people's eyes, had been created by the alien and sedition laws, and by the virginia and kentucky resolutions which those undemocratic statutes called forth. freedom of speech on the one hand and nationalism on the other hand, the crushing of "sedition" as against that license which localism permitted--such were the issues which the imprudence and hot-headedness of the federalist judges had brought up for settlement. thus, unhappily, democracy marched arm in arm with state rights, while nationalism found itself the intimate companion of a narrow, bigoted, and retrograde conservatism. had not the federalists, arrogant with power and frantic with hatred of france and fast becoming zealots in their championship of great britain, passed the drastic laws against liberty of the press and freedom of speech; had not the republican protest against these statutes taken the form of the assertion that individual states might declare unconstitutional and disregard the acts of the national legislature; and finally, had not national tribunals and some judges of state courts been so harsh and insolent, the republican assault upon the national judiciary,[ ] the echoes of which loudly sound in our ears even to the present day, probably never would have been made. but for these things, marbury _vs._ madison[ ] might never have been written; the supreme court might have remained nothing more than the comparatively powerless institution that ultimate appellate judicial establishments are in other countries; and the career of john marshall might have been no more notable and distinguished than that of the many ghostly figures in the shadowy procession of our judicial history. but the republican condemnations of the severe punishment that the federalists inflicted upon anybody who criticized the government, raised fundamental issues and created conditions that forced action on those issues. footnotes: [ ] gallatin to his wife, jan. , , adams: _life of albert gallatin_, ; also bryan: _history of the national capital_, i, - . [ ] _first forty years of washington society_: hunt, . [ ] _ib._; and see wolcott to his wife, july , , gibbs: _administrations of washington and john adams_, ii, . [ ] plumer to thompson, jan. , , plumer mss. lib. cong. [ ] gallatin to his wife, jan. , , adams: _gallatin_, - . [ ] hunt, . [ ] gallatin to his wife, _supra_. [ ] bryan, i, - . [ ] a few of these are still standing and occupied. [ ] gallatin to his wife, _supra_; also wharton: _social life in the early republic_, - . [ ] gallatin to his wife, aug. , , adams: _gallatin_, . [ ] wolcott to his wife, july , , gibbs, ii, . [ ] otis to his wife, feb. , , morison: _life and letters of harrison gray otis_, ii, - . this letter is accurately descriptive of travel from the national capital to baltimore as late as and many years afterward. "the bladensburg _run, before we came to the bridge_, was happily in no one place _above_ the horses bellies.--as we passed thro', the driver pointed out to us the spot, right under our wheels, where all the stage horses last year were drowned, but then he consoled us by shewing the tree, on which all the passengers _but one_, were saved. whether that one was gouty or not, i did not enquire.... "we ... arriv'd safe at our first stage, ross's, having gone at a rate rather exceeding two miles & an half per hour.... in case of a _break down_ or other accident, ... i should be sorry to stick and freeze in over night (_as i have seen happen to twenty waggons_) for without an extraordinary thaw i could not be dug out in any reasonable dinner-time the next day." of course conditions were much worse in all parts of the country, except the longest and most thickly settled sections. [ ] parton: _life of thomas jefferson_, . [ ] plumer to his wife, jan. , , plumer mss. lib. cong. [ ] _memoirs of john quincy adams_: adams, iv, ; and see quincy: _life of josiah quincy_, . bayard wrote to rodney: "four months [in washington] almost killed me." (bayard to rodney, feb. , , n. y. library bulletin, iv, .) [ ] margaret smith to susan smith, dec. , , hunt, ; also mrs. smith to her husband, july , , _ib._ ; and gallatin to his wife, aug. , , adams: _gallatin_, - . [ ] king to gore, aug. , , _life and correspondence of rufus king_: king, iv, ; and see adams: _history of the united states_, iv, . [ ] gallatin to his wife, jan. , , adams: _gallatin_, . [ ] wharton: _social life_, . [ ] see _infra_, chap. iv. [ ] plumer to lowndes, dec. , , plumer: _life of william plumer_, . "the wilderness, alias the federal city." (plumer to tracy, may , , plumer mss. lib. cong.) [ ] story to fay, feb. , , _life and letters of joseph story_: story, i, . [ ] this was a little presbyterian church building, which was abandoned after . (bryan, i, ; and see hunt, - .) [ ] _memoirs of lieut.-general scott_, - . among the masses of the people, however, a profound religious movement was beginning. (see semple: _history of the rise and progress of the baptists in virginia_; and cleveland: _great revival in the west_.) a year or two later, religious services were held every sunday afternoon in the hall of the house of representatives, which always was crowded on these occasions. the throng did not come to worship, it appears; seemingly, the legislative hall was considered to be a convenient meeting-place for gossip, flirtation, and social gayety. the plan was soon abandoned and the hall left entirely to profane usages. (bryan, i, - .) [ ] gallatin to his wife, jan. , , adams: _gallatin_, . [ ] wharton: _social life_, . [ ] hunt, . [ ] see merry to hammond, dec. , , as quoted in adams: _u.s._ ii, . public men seldom brought their wives to washington because of the absence of decent accommodations. (mrs. smith to mrs. kirkpatrick, dec. , , hunt, .) "i do not perceive how the members of congress can possibly secure lodgings, unless they will consent to live like scholars in a college or monks in a monastery, crowded ten or twenty in a house; and utterly excluded from society." (wolcott to his wife, july , , gibbs, ii, .) [ ] plumer to thompson, march , , plumer mss. lib. cong. and see _annals_, th cong. st sess. - . the debate is instructive. the bill was lost by yeas to nays. [ ] hildreth: _history of the united states_, v, - . [ ] plumer to lowndes, dec. , , plumer, . [ ] channing: _history of the united states_, iv, . [ ] bryan, i, . [ ] wolcott to his wife, july , , gibbs, ii, . "the workmen are the refuse of that class and, nevertheless very high in their demands." (la rochefoucauld-liancourt: _travels through the united states of north america_, iii, .) [ ] "to thomas hume, esq., m.d.," moore: _poetical works_, ii, . [ ] see jefferson to short, sept. , , _works of thomas jefferson_: ford, vi, ; same to mrs. adams, july , , _ib._ iv, - ; same to peters, june , , _ib._ vi, ; same to short, april , , _ib._ ; same to monroe, may , , _ib._ viii, ; same to jay, oct. , , _memoir, correspondence, and miscellanies, from the papers of thomas jefferson_: randolph, ii, ; also see chastellux: _travels in north america in the years - - _, . [ ] see singleton: _story of the white house_, i, - . [ ] plumer to his wife, dec. , , plumer, . [ ] "mr. granger [jefferson's postmaster-general] ... after a few bottles of champagne were emptied, on the observation of mr. madison that it was the most delightful wine when drank in moderation, but that more than a few glasses always produced a headache the next day, remarked with point that this was the very time to try the experiment, as the next day being sunday would allow time for a recovery from its effects. the point was not lost upon the host and bottle after bottle came in." (s. h. smith to his wife, april , . hunt, .) [ ] at that time it was called "the executive mansion" or "the president's palace." [ ] bryan, i, ; also see la rochefoucauld-liancourt, iii, - . [ ] see vol. i, chaps. vi and vii, of this work. [ ] marshall to pinckney, march , , ms. furnished by dr. w. s. thayer of baltimore. [ ] cabot to wolcott, aug. , , lodge: _life and letters of george cabot_, . george cabot was the ablest, most moderate and far-seeing of the new england federalists. he feared and detested what he called "excessive democracy" as much as did ames, or pickering, or dwight, but, unlike his brother partisans, did not run to the opposite extreme himself and never failed to assert the indispensability of the democratic element in government. cabot was utterly without personal ambition and was very indolent; otherwise he surely would have occupied a place in history equal to that of men like madison, gallatin, hamilton, and marshall. [ ] hale to king, dec. , , king, iv, . [ ] sedgwick to king, dec. , , _ib._ - . [ ] dwight's oration as quoted in adams: u.s. i, . [ ] j. q. adams to king, oct. , , _writings of john quincy adams_: ford, iii, - . within six years adams abandoned a party which offered such feeble hope to aspiring ambition. (see _infra_, chap, ix.) [ ] j. russell's _gazette-commercial and political_, january , . [ ] _history of the last session of congress which commenced th dec. _ (taken from the _national intelligencer_). yet at that time in america manhood suffrage did not exist excepting in three states, a large part of the people could not read or write, imprisonment for debt was universal, convicted persons were sentenced to be whipped in public and subjected to other cruel and disgraceful punishments. hardly a protest against slavery was made, and human rights as we now know them were in embryo, so far as the practice of them was concerned. [ ] wirt: _letters of the british spy_, - . these brilliant articles, written by wirt when he was about thirty years old, were published in the richmond _argus_ during . so well did they deceive the people that many in gloucester and norfolk declared that they had seen the british spy. (kennedy: _memoirs of the life of william wirt_, i, , .) [ ] ames to pickering, feb. , , pickering mss. mass. hist. soc. [ ] jefferson to rush, oct. , , _works_: ford, x, . immediately after his inauguration, jefferson restated the american foreign policy announced by washington. it was the only doctrine on which he agreed with marshall. "it ought to be the very first object of our pursuits to have nothing to do with european interests and politics. let them be free or slaves at will, navigators or agricultural, swallowed into one government or divided into a thousand, we have nothing to fear from them in any form.... to take part in their conflicts would be to divert our energies from creation to destruction." (jefferson to logan, march , , _works_: ford, ix, - .) [ ] jefferson to postmaster-general (gideon granger), may , , _works_: ford, ix, . the democratic revolution that overthrew federalism was the beginning of the movement that finally arrived at the abolition of imprisonment for debt, the bestowal of universal manhood suffrage, and, in general, the more direct participation in every way of the masses of the people in their own government. but in the first years of republican power there was a pandering to the crudest popular tastes and passions which, to conservative men, argued a descent to the sansculottism of france. [ ] see _infra_, chaps. iii and vi; also vol. iv, chap. i. [ ] cranch, _et seq._ [ ] wilson _vs._ mason, cranch, - . [ ] cranch, - . [ ] turner _vs._ fendall, cranch, - . [ ] see vol. ii, - , of this work. [ ] see adams: _u.s._ i, chaps. ix and x, for account of the revolutionary measures which the republicans proposed to take. [ ] marshall to pinckney, march , , "four o'clock," ms. [ ] "it is the sole object of the administration to acquire popularity." (wolcott to cabot, aug. , , lodge: _cabot_, .) "the president has ... the itch for popularity." (j. q. adams to his father, november, , _writings, j. q. a._: ford, iii, .) "the mischiefs of which his immoderate thirst for ... popularity are laying the foundation, are not immediately perceived." (adams to quincy, dec. , , quincy, .) "it seems to be a great primary object with him never to pursue a measure if it becomes unpopular." (plumer's diary, march , , plumer mss. lib. cong.) "in dress, conversation, and demeanor he studiously sought and displayed the arts of a low demagogue seeking the gratification of the democracy on whose voices and votes he laid the foundation of his power." (quincy's diary, jan. , quincy, .) [ ] ames to gore, dec. , , _works of fisher ames_: ames, i, . [ ] dodd in _american historical review_, xii, ; and see next chapter. [ ] jefferson to dickinson, dec. , , _writings of thomas jefferson_: washington, iv, . [ ] "the only shield for our republican citizens against the federalism of the courts is to have the attorneys & marshals republicans." (jefferson to stuart, april , , _works_: ford, ix, .) [ ] "the judge of course stands until the law [judiciary act of ] shall be repealed which we trust will be at the next congress." (jefferson to stuart, april , , _works_: ford, ix, .) for two weeks jefferson appears to have been confused as to the possibility of repealing the judiciary act of . a fortnight before he informed stuart that this course would be taken, he wrote giles that "the courts being so decidedly federal and irremovable," it was "indispensably necessary" to appoint "republican attorneys and marshals." (jefferson to giles, march , , mss. lib. cong. as quoted by carpenter in _american political science review_, ix, .) but the repeal had been determined upon within six weeks after jefferson's inauguration as his letter to stuart shows. [ ] giles to jefferson, march , , anderson: _william branch giles--a study in the politics of virginia - _, . [ ] same to same, june , , _ib._ . [ ] sedgwick to king, dec. , , king, iv, . [ ] hale to king, dec. , , king, iv, . [ ] it must be carefully kept in mind that from the beginning of the revolution most of the people were antagonistic to courts of any kind, and bitterly hostile to lawyers. (see vol. i, - , of this work.) braintree, mass., in , in a town meeting, denounced lawyers and demanded by formal resolution the enactment of "such laws ... as may crush or, at least, put a proper check of restraint" upon them. dedham, mass., instructed its members of the legislature to secure the passage of laws that would "check" attorneys; and if this were not practicable, then "you are to endeavor [to pass a bill declaring] that the order of lawyers be totally abolished." (warren: _history of the american bar_, .) all this, of course, was the result of the bitter hardships of debtors. [ ] for an able defense of the adoption by the national courts of the british common law, see _works of the honourable james wilson_: wilson, iii, . [ ] _columbian centinel_, july , , as quoted in warren, - . [ ] _correspondence and public papers of john jay_: johnston, iii, - . [ ] wharton: _state trials of the u.s. during the administrations of washington and adams_, _et seq._; and see wilson's law lecture on the subject, wilson, iii, . [ ] dallas, - . [ ] _ib._ ravara was tried and convicted by the jury under the instructions of the bench, "but he was afterward pardoned on condition that he surrender his commission and exequatur." (wharton: _state trials_, - .) [ ] for the documents preceding the arrest and prosecution of henfield, see wharton: _state trials_, footnotes to - . [ ] see wilson's charge, wharton: _state trials_, - . [ ] see wharton's summary of wilson's second charge, _ib._ footnote to . [ ] _ib._ . [ ] marshall: _life of george washington_, d ed. ii, - . after the henfield and ravara cases, congress passed a law applicable to such offenses. (see wharton: _state trials_, - .) [ ] wharton: _state trials_, - . [ ] this was the british defense for impressment of seamen on american ships. it was one of the chief points in dispute in the war of . the adherence of federalists to this doctrine was one of the many causes of the overthrow of that once great party. (see _infra_, vol. iv, chap. i, of this work.) [ ] wharton: _state trials_, . upon another indictment for having captured a british ship and crew, williams, with no other defense than that offered on his trial under the first indictment, pleaded guilty, and was sentenced to an additional fine of a thousand dollars, and to further imprisonment of four months. (_ib._; see also vol ii, , of this work.) [ ] u.s. _vs._ hudson, cranch, - . "although this question is brought up now for the first time to be decided by this court, we consider it as having been long since settled in public opinion.... the legislative authority of the union must first make an act a crime, affix a punishment to it and declare the court that shall have jurisdiction of the offense." (justice william johnson delivering the opinion of the majority of the court, _ib._) joseph story was frantic because the national judges could not apply the common law during the war of . (see his passionate letters on the subject, vol. iv, chap. i, of this work; and see his argument for the common law, story, i, - ; see also peters to pickering, dec. , , march , and april , , pickering mss. mass. hist. soc.) [ ] the opinion of justice chase, of the supreme court of philadelphia, sitting with peters, district judge, in the case of the united states _vs._ robert worral, indicted under the common law for attempting to bribe a united states officer. justice chase held that english common law was not a part of the jurisprudence of the united states as a nation. (wharton: _state trials_, - .) [ ] this was notably true of justice james wilson, of the supreme court, and alexander addison, president judge of the fifth pennsylvania (state) circuit, both of whom were born and educated in the united kingdom. they were two of the ablest and most learned men on the bench at that period. [ ] message of governor john tyler, dec. , , tyler: _letters and times of the tylers_, i, ; and see tyler to monroe, dec. , , _ib._ . [ ] jefferson to randolph, aug. , , _works_: ford, ix, . [ ] see vol. ii, chaps. x and xi, of this work. [ ] the national judges, in their charges to grand juries, lectured and preached on religion, on morality, on partisan politics. "on monday last the circuit court of the united states was opened in this town. the hon. judge patterson ... delivered a most elegant and appropriate charge. "the _law_ was laid down in a masterly manner: _politics_ were set in their true light by holding up the jacobins [republicans] as the disorganizers of our happy country, and the only instruments of introducing discontent and dissatisfaction among the well meaning part of the community. _religion & morality_ were pleasingly inculcated and enforced as being necessary to good government, good order, and good laws; for 'when the righteous [federalists] are in authority, the people rejoice.'... "after the charge was delivered the rev. mr. alden addressed the throne of grace in an excellent and well adapted prayer." (_united states oracle of the day_, may , , as quoted by hackett, in _green bag_, ii, .) [ ] adams's war speech of ; see vol. ii, , of this work. [ ] wharton: _state trials_, - . [ ] _ib._ . [ ] _ib._ . paterson sat with district judge hitchcock and delivered the charge in this case. luther martin in the trial of justice chase (see _infra_, chap. iv) said that paterson was "mild and amiable," and noted for his "suavity of manners." (_trial of the hon. samuel chase_: evans, stenographer, - .) [ ] see lyon to mason, oct. , , wharton: _state trials_, - . [ ] jefferson to taylor, nov. , , jefferson mss. lib. cong. [ ] wharton: _state trials_, . [ ] _ib._ . [ ] _ib._ - . [ ] wharton: _state trials_, - . cooper was referring to the case of jonathan robins. (see vol. ii, - , of this work.) [ ] cooper afterward became a state judge. [ ] see _infra_, chap. viii. [ ] wharton: _state trials_, . stephen girard paid cooper's fine. (mcmaster: _life and times of stephen girard_, i, - .) [ ] wharton: _state trials_, - . [ ] see vol. ii, _et seq._ of this work. [ ] wharton: _state trials_, - . [ ] for sketch of lewis see wharton: _state trials_, - . [ ] _independent chronicle_, boston, may , . [ ] wharton: _state trials_, et seq. [ ] see vol. ii, _et seq._ of this work. [ ] jefferson to mason, oct. , , _works_: ford, viii, - ; same to callender, sept. , , _ib._ ix, - ; same to same, oct. , , _ib._ - ; pickering to higginson, jan. , , pickering mss. mass. hist. soc. [ ] war speech of adams to congress in , see vol. ii, , of this work. [ ] testimony of james winchester (_annals_, th cong. d sess. - ); of luther martin (_ib._ - ); and of john t. mason (_ib._ ); see also _chase trial_, . [ ] testimony of james triplett, _chase trial_, - , and see _annals_, th cong. d sess. - . [ ] jefferson to monroe, may , , _works_: ford, ix, . by "public interference" jefferson meant an appropriation by the virginia legislature. (_ib._ .) [ ] the trial of aaron burr, see _infra_, chaps. vi, vii, viii, and ix. [ ] see testimony of george hay,_ annals_, th cong. d sess. ; and see especially luther martin's comments thereon, _infra_, chap. iv. [ ] the public mind was well prepared for just such appeals as those that hay and wirt planned to make. for instance, the citizens of caroline county subscribed more than one hundred dollars for callender's use. the subscription paper, probably drawn by colonel john taylor, in whose hands the money was placed, declared that callender "has a cause closely allied to the preservation of the constitution, and to the freedom of public opinion; and that he ought to be comforted in his bonds." callender was "a sufferer for those principles." therefore, and "because also he is poor and has three infant children who live by his daily labor" the contributors freely gave the money "to be applied to the use of james t. callender, and if he should die in prison, to the use of his children." (_independent chronicle_, boston, july , .) [ ] see _infra_, chap. iv. [ ] wharton: _state trials_, . [ ] _ib._ - ; and see testimony of taylor, _chase trial_, - . [ ] wharton: _state trials_, - . chase's charge to the jury was an argument that the constitutionality of a law could not be determined by a jury, but belonged exclusively to the judicial department. for a brief _précis_ of this opinion see chap. iii of this volume. chase advanced most of the arguments used by marshall in marbury _vs._ madison. [ ] _ib._ . when jefferson became president he immediately pardoned callender. (see next chapter.) [ ] wharton: _state trials_, footnote to . [ ] see testimonies of gunning bedford, nicholas vandyke, archibald hamilton, john hall, and samuel p. moore, _chase trial_, - . [ ] for example, one charles holt, publisher of a newspaper, _the bee_, of new london, connecticut, had commented on the uselessness of enlisting in the army, and reflected upon the wisdom of the administration's policy; for this he was indicted, convicted, and sentenced to three months' imprisonment, and the payment of a fine of two hundred dollars. (randall: _life of thomas jefferson_, ii, .) when president adams passed through newark, new jersey, the local artillery company fired a salute. one of the observers, a man named baldwin, idly remarked that "he wished the wadding from the cannon had been lodged in the president's backside." for this seditious remark baldwin was fined one hundred dollars. (hammond: _history of political parties in the state of new york_, i, - .) one jedediah peck, assemblyman from otsego county, n.y., circulated among his neighbors a petition to congress to repeal the alien and sedition laws. this shocking act of sedition was taken up by the united states district attorney for new york, who procured the indictment of peck; and upon bench warrant, the offender was arrested and taken to new york for trial. it seems that such were the demonstrations of the people, wherever peck appeared in custody of the officer, that the case was dropped. (randall, ii, .) [ ] they were supposed to select juries according to the laws of the states where the courts were held. as a matter of fact they called the men they wished to serve. [ ] mcmaster: _history of the people of the united states_, ii, ; and see speech of charles pinckney in the senate, march , , _annals_, th cong. st and d sess. . [ ] see speech of bacon in the _independent chronicle_, feb. - , ; and of hill, _ib._ feb. , . [ ] _columbian centinel_, feb. , ; also see issue of jan. , . for condensed account of this incident see anderson in _am. hist. rev._ v, - , quoting the _centinel_ as cited. a federalist mob stoned the house of dr. hill the night after he made this speech. (_ib._) see also _infra_, chap. iii. [ ] _independent chronicle_, feb. , . [ ] _columbian centinel_, march , . the attorneys for adams also advanced the doctrines of the kentucky and virginia resolutions, so far, at least, as to assert that any state ought to protest against and resist any act of congress that the commonwealth believed to be in violation of the national constitution. (anderson, in _am. hist. rev._ v, - .) [ ] _columbian centinel_, march , . another instance of intolerant and partisan prosecutions in state courts was the case of duane and others, indicted and tried for getting signatures to a petition in congress against the alien and sedition laws. they were acquitted, however. (wharton: _state trials_, - .) [ ] these charges of judge addison were, in reality, political pamphlets. they had not the least reference to any business before the court, and were no more appropriate than sermons. they were, however, written with uncommon ability. it is doubtful whether any arguments more weighty have since been produced against what george cabot called "excessive democracy." these grand jury charges of addison were entitled: "causes and error of complaints and jealousy of the administration of the government"; "charges to the grand juries of the county court of the fifth circuit of the state of pennsylvania, at december session, "; "the liberty of speech and of the press"; "charge to grand juries, "; "rise and progress of revolution," and "a charge to the grand juries of the state of pennsylvania, at december session, ." [ ] coulter _vs._ moore, for defamation. coulter, a justice of the peace, sued moore for having declared, in effect, that coulter "kept a house of ill fame." (_trial of alexander addison, esq._: lloyd, stenographer, ; also wharton: _state trials_, _et seq._) [ ] this judge was john c. b. lucas. he was a frenchman speaking broken english, and, judging from the record, was a person of very inferior ability. there seems to be no doubt that he was the mere tool of another judge, hugh h. brackenridge, who hated addison virulently. from a study of the case, one cannot be surprised that the able and erudite addison held in greatest contempt the fussy and ignorant lucas. [ ] wharton: _state trials_, ; carson: _supreme court of the united states, its history_, i, . [ ] the uprising against the judiciary naturally began in pennsylvania where the extravagance of the judges had been carried to the most picturesque as well as obnoxious extremes. for a faithful narrative of these see mcmaster: _u.s._ iii, - . on the other hand, wherever republicans occupied judicial positions, the voice from the bench, while contrary to that of the federalist judges, was no less harsh and absolute. for instance, the judges of the supreme court of new hampshire refused to listen to the reading of british law reports, because they were from "musty, old, worm-eaten books." one of the judges declared that "not common law--not the quirks of coke and blackstone--but common sense" controlled american judges. (warren, .) [ ] see next chapter. [ ] see _infra_, chap. iii, for a résumé of the conditions that forced marshall to pronounce his famous opinion in the case of marbury _vs._ madison, as well as for a full discussion of that controversy. chapter ii the assault on the judiciary the angels of destruction are making haste. our judges are to be as independent as spaniels. (fisher ames.) the power which has the right of passing, without appeal, on the validity of your laws, is your sovereign. (john randolph.) on january , , an atmosphere of intense but suppressed excitement pervaded the little semi-circular room where the senate of the united states was in session.[ ] the republican assault upon the judiciary was about to begin and the federalists in congress had nerved themselves for their last great fight. the impending debate was to prove one of the permanently notable engagements in american legislative history and was to create a situation which, in a few months, forced john marshall to pronounce the first of those fundamental opinions which have helped to shape and which still influence the destiny of the american nation. the decision of marbury _vs._ madison was to be made inevitable by the great controversy to which we are now to listen. marshall's course, and, indeed, his opinion in this famous case, cannot be understood without a thorough knowledge of the notable debate in congress which immediately preceded it.[ ] never was the effect of the long years of party training which jefferson had given the republicans better manifested than now. there was unsparing party discipline, perfect harmony of party plan. the president himself gave the signal for attack, but with such skill that while his lieutenants in house and senate understood their orders and were eager to execute them, the rank and file of the federalist voters, whom jefferson hoped to win to the republican cause in the years to come, were soothed rather than irritated by the seeming moderation and reasonableness of the president's words. "the judiciary system ... and especially that portion of it recently enacted, will, of course, present itself to the contemplation of congress," was the almost casual reference in the president's first message to the republican purpose to subjugate the national judiciary. to assist senators and representatives in determining "the proportion which the institution bears to the business it has to perform" jefferson had "procured from the several states ... an exact statement of all the causes decided since the first establishment of the courts and of the causes which were pending when additional courts and judges were brought to their aid." this summary he transmitted to the law-making body. in a seeming spirit of impartiality, almost of indifference, the president suggested congressional inquiry as to whether jury trials had not been withheld in many cases, and advised the investigation of the manner of impaneling juries.[ ] thus far and no farther went the comments on the national judiciary which the president laid before congress. the status of the courts--a question that filled the minds of all, both federalists and republicans--was not referred to. but the thought of it thrilled jefferson, and only his caution restrained him from avowing it. indeed, he had actually written into the message words as daring as those of his cherished kentucky resolutions; had boldly declared that the right existed in each department "to decide on the validity of an act according to its own judgment and uncontrolled by the opinions of any other department"; had asserted that he himself, as president, had the authority and power to decide the constitutionality of national laws; and had, as president, actually pronounced, in official form, the sedition act to be "in palpable and unqualified contradiction to the constitution."[ ] this was not merely a part of a first rough draft of this presidential document, nor was it lightly cast aside. it was the most important paragraph of the completed message. jefferson had signed it on december , , and it was ready for transmission to the national legislature. but just before sending the message to the capitol, he struck out this passage,[ ] and thus notes on the margin of the draft his reason for doing so: "this whole paragraph was omitted as capable of being chicaned, and furnishing something to the opposition to make a handle of. it was thought better that the message should be clear of everything which the public might be made to misunderstand." although jefferson's programme, as stated in the altered message which he finally sent to congress, did not arouse the rank and file of federalist voters, it did alarm and anger the federalist chieftains, who saw the real purpose back of the president's colorless words. fisher ames, that delightful reactionary, thus interpreted it: "the message announces the downfall of the late revision of the judiciary; economy, the patriotism of the shallow and the trick of the ambitious.... the u. s. gov't ... is to be dismantled like an old ship.... the state gov'ts are to be exhibited as alone safe and salutary."[ ] the judiciary law of , which the federalist majority enacted before their power over legislation passed forever from their hands, was one of the best considered and ablest measures ever devised by that constructive party.[ ] almost from the time of the organization of the national judiciary the national judges had complained of the inadequacy and positive evils of the law under which they performed their duties. the famous judiciary act of , which has received so much undeserved praise, did not entirely satisfy anybody except its author, oliver ellsworth. "it is a child of his and he defends it ... with wrath and anger," wrote maclay in his diary.[ ] in the first congress opposition to the ellsworth act had been sharp and determined. elbridge gerry denounced the proposed national judiciary as "a tyranny."[ ] samuel livermore of new hampshire called it "this new fangled system" which "would ... swallow up the state courts."[ ] james jackson of georgia declared that national courts would cruelly harass "the poor man."[ ] thomas sumter of south carolina saw in the judiciary bill "the iron hand of power."[ ] maclay feared that it would be "the gunpowder plot of the constitution."[ ] when the ellsworth bill had become a law, senator william grayson of virginia advised patrick henry that it "wears so monstrous an appearance that i think it will be _felo-de-se_ in the execution.... whenever the federal judiciary comes into operation, ... the pride of the states ... will in the end procure its destruction"[ ]--a prediction that came near fulfillment and probably would have been realized but for the courage of john marshall. while grayson's eager prophecy did not come to pass, the judiciary act of worked so badly that it was a source of discontent to bench, bar, and people. william r. davie of north carolina, a member of the convention that framed the constitution and one of the most eminent lawyers of his time, condemned the ellsworth act as "so defective ... that ... it would disgrace the composition of the meanest legislature of the states."[ ] it was, as we have seen,[ ] because of the deficiencies of the original judiciary law that jay refused reappointment as chief justice. "i left the bench," he wrote adams, "perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess."[ ] the six justices of the supreme court were required to hold circuit courts in pairs, together with the judge of the district in which the court was held. each circuit was to be thus served twice every year, and the supreme court was to hold two sessions annually in washington.[ ] so great were the distances between places where courts were held, so laborious, slow, and dangerous was all travel,[ ] that the justices--men of ripe age and studious habits--spent a large part of each year upon the road.[ ] sometimes a storm would delay them, and litigants with their assembled lawyers and witnesses would have to postpone the trial for another year or await, at the expense of time and money, the arrival of the belated justices.[ ] a graver defect of the act was that the justices, sitting together as the supreme court, heard on appeal the same causes which they had decided on the circuit bench. thus, in effect, they were trial and appellate judges in identical controversies. moreover, by the rotation in riding circuits different judges frequently heard the same causes in their various stages, so that uniformity of practice, and even of decisions, was made impossible. the admirable judiciary act, passed by the federalists in , corrected these defects. the membership of the supreme court was reduced to five after the next vacancy, the justices were relieved of the heavy burden of holding circuit courts, and their duties were confined exclusively to the supreme bench. the country was divided into sixteen circuits, and the office of circuit judge was created for each of these. the circuit judge, sitting with the district judge, was to hold circuit court, as the justices of the supreme court had formerly done. thus the prompt and regular sessions of the circuit courts were assured. the appeal from decisions rendered by the supreme court justices, sitting as circuit judges, to the same men sitting as appellate judges, was done away with.[ ] in establishing these new circuits and creating these circuit judges, this excellent federalist law gave adams the opportunity to fill the offices thus created with stanch federalist partisans. indeed, this was one motive for the enactment of the law. the salaries of the new circuit judges, together with other necessary expenses of the remodeled system, amounted to more than fifty thousand dollars every year--a sum which the republicans exaggerated in their appeals to the people and even in their arguments in congress.[ ] chiefly on the pretext of this alleged extravagance, but in reality to oust the newly appointed federalist judges and intimidate the entire national judiciary, the republicans, led by jefferson, determined to repeal the federalist judiciary act of , upon the faith in the passage of which john marshall, with misgiving, had accepted the office of chief justice. on january , , senator john breckenridge of kentucky pulled the lanyard that fired the opening gun.[ ] he was the personification of anti-nationalism and aggressive democracy. he moved the repeal of the federalist national judiciary act of .[ ] every member of senate and house--republican and federalist--was uplifted or depressed by the vital importance of the issue thus brought to a head; and in the debate which followed no words were too extreme to express their consciousness of the gravity of the occasion.[ ] in opening the debate, senator breckenridge confined himself closely to the point that the new federalist judges were superfluous. "could it be necessary," he challenged the federalists, "to _increase_ courts when suits were _decreasing_? ... to multiply judges, when their duties were diminishing?" no! "the time never will arrive when america will stand in need of thirty-eight federal judges."[ ] the federalist judiciary law was "a wanton waste of the public treasure."[ ] moreover, the fathers never intended to commit to national judges "subjects of litigation which ... could be left to state courts." answering the federalist contention that the constitution guaranteed to national judges tenure of office during "good behavior" and that, therefore, the offices once established could not be destroyed by congress, the kentucky senator observed that "sinecure offices, ... are not permitted by our laws or constitution."[ ] james monroe, then in richmond, hastened to inform breckenridge that "your argument ... is highly approved here." but, anxiously inquired that foggy republican, "do you mean to admit that the legislature [congress] has not a right to repeal the law organizing the supreme court for the express purpose of dismissing the judges when they cease to possess the public confidence?" if so, "the people have no check whatever on them ... but impeachment." monroe hoped that "the period is not distant" when any opposition to "the sovereignty of the people" by the courts, such as "the application of the principles of the english common law to our constitution," would be considered "good cause for impeachment."[ ] thus early was expressed the republican plan to impeach and remove marshall and the entire federal membership of the supreme court so soon to be attempted.[ ] in reply to breckenridge, senator jonathan mason of massachusetts, an accomplished boston lawyer, promptly brought forward the question in the minds of congress and the country. "this," said he, "was one of the most important questions that ever came before a legislature." why had the judiciary been made "as independent of the legislature as of the executive?" because it was their duty "to expound not only the laws, but the constitution also; in which is involved the power of checking the legislature in case it should pass any laws in violation of the constitution."[ ] the old system which the republicans would now revive was intolerable, declared senator gouverneur morris of new york. "cast an eye over the extent of our country" and reflect that the president, "in selecting a character for the bench, must seek less the learning of a judge than the agility of a post boy." moreover, to repeal the federal judiciary law would be "a declaration to the remaining judges that they hold their offices subject to your [congress's] will and pleasure." thus "the check established by the constitution is destroyed." [illustration] morris expounded the conservative federalist philosophy thus: "governments are made to provide against the follies and vices of men.... hence, checks are required in the distribution of power among those who are to exercise it for the benefit of the people." the most efficient of these checks was the power given the national judiciary--"a check of the first necessity, to prevent an invasion of the constitution by unconstitutional laws--a check which might prevent any faction from intimidating or annihilating the tribunals themselves."[ ] let the republican senators consider where their course would end, he warned. "what has been the ruin of every republic? the vile love of popularity. _why are we here? to save the people from their most dangerous enemy; to save them from themselves_."[ ] do not, he besought, "commit the fate of america to the mercy of time and chance."[ ] "good god!" exclaimed senator james jackson of georgia, "is it possible that i have heard such a sentiment in this body? rather should i have expected to have heard it sounded from the despots of turkey, or the deserts of siberia.[ ]... i am more afraid of an army of judges, ... than of an army of soldiers.... have we not seen sedition laws?" the georgia senator "thanked god" that the terrorism of the national judiciary was, at last, overthrown. "that we are not under dread of the patronage of judges, is manifest, from their attack on the secretary of state."[ ] senator uriah tracy of connecticut was so concerned that he spoke in spite of serious illness. "what security is there to an individual," he asked, if the legislature of the union or any particular state, should pass an _ex post facto_ law? "none in the world" but revolution or "an appeal to the judiciary of the united states, where he will obtain a decision that the law itself is unconstitutional and void."[ ] that typical virginian, senator stevens thompson mason, able, bold, and impetuous, now took up gouverneur morris's gage of battle. he was one of the most fearless and capable men in the republican party, and was as impressive in physical appearance as he was dominant in character. he was just under six feet in height, yet heavy with fat; he had extraordinarily large eyes, gray in color, a wide mouth with lips sternly compressed, high, broad forehead, and dark hair, thrown back from his brow. mason had "wonderful powers of sarcasm" which he employed to the utmost in this debate.[ ] it was true, he said, in beginning his address, that the judiciary should be independent, but not "independent of the nation itself." certainly the judiciary had not constitutional authority "to control the other departments of the government."[ ] mason hotly attacked the federalist position that a national judge, once appointed, was in office permanently; and thus, for the second time, marbury _vs._ madison was brought into the debate. "have we not heard this doctrine supported in the memorable case of the mandamus, lately[ ] before the supreme court? was it not there said [in argument of counsel] that, though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years?"[ ] the true principle, mason declared, was that judicial offices like all others "are made for the good of the people and not for that of the individual who administers them." even judges of the supreme court should do something to earn their salaries; but under the federalist judiciary act of "what have they got to do? to try ten suits, [annually] for such is the number now on their docket." mason now departed slightly from the republican programme of ignoring the favorite federalist theory that the judiciary has the power to decide the constitutionality of statutes. he fears that the justices of the supreme court "will be induced, from want of employment, to do that which they ought not to do.... they may ... hold the constitution in one hand, and the law in the other, and say to the departments of government, so far shall you go and no farther." he is alarmed lest "this independence of the judiciary" shall become "something like supremacy."[ ] seldom in parliamentary contests has sarcasm, always a doubtful weapon, been employed with finer art than it was by mason against morris at this time. the federalists, in the enactment of the judiciary act of , had abolished two district courts--the very thing for which the republicans were now assailed by the federalists as destroyers of the constitution. where was morris, asked mason, when his friends had committed that sacrilege? "where was the _ajax telamon_ of his party" at that hour of fate? "where was the hero with his seven-fold shield--not of bull's hide, but of brass--prepared to prevent or to punish this trojan rape?"[ ] morris replied lamely. he had been criticized, he complained, for pointing out "the dangers to which popular governments are exposed, from the influence of designing demagogues upon popular passion." yet "'tis for these purposes that all our constitutional checks are devised." otherwise "the constitution is all nonsense." he enumerated the constitutional limitations and exclaimed, "why all these multiplied precautions, unless to check and control that impetuous spirit ... which has swept away every popular government that ever existed?"[ ] should all else fail, "the constitution has given us ... an independent judiciary" which, if "you trench upon the rights of your fellow citizens, by passing an unconstitutional law ... will stop you short." preserve the judiciary in its vigor, and in great controversies where the passions of the multitude are aroused, "instead of a resort to arms, there will be a happier appeal to argument."[ ] answering mason's fears that the supreme court, "having little else to do, would do mischief," morris avowed that he should "rejoice in that mischief," if it checked "the legislative or executive departments in any wanton invasion of our rights.... i know this doctrine is unpleasant; i know it is more popular to appeal to public opinion--that equivocal, transient being, which exists nowhere and everywhere. but if ever the occasion calls for it, i trust the supreme court will not neglect doing the great mischief of saving this constitution."[ ] his emotions wrought to the point of oratorical ecstasy, morris now made an appeal to "the good sense, patriotism, and ... virtue" of the republic, in the course of which he became badly entangled in his metaphors. "do not," he pleaded, "rely on that popular will, which has brought us frail beings into political existence. that opinion is but a changeable thing. it will soon change. this very measure will change it. you will be deceived. do not ... commit the dignity, the harmony, the existence of our nation to the wild wind. trust not your treasure to the waves. throw not your compass and your charts into the ocean. do not believe that its billows will waft you into port. indeed, indeed, you will be deceived. "cast not away this only anchor of our safety. i have seen its progress. i know the difficulties through which it was obtained. i stand in the presence of almighty god, and of the world; and i declare to you, that if you lose this charter, never, no, never will you get another! we are now, perhaps, arrived at the parting point. here, even here, we stand on the brink of fate. pause--pause! for heaven's sake, pause!"[ ] senator breckenridge would not "pause." the "progress" of senator morris's "anchor," indeed, dragged him again to "the brink of fate." the senate had "wandered long enough" with the federalist senators "in those regions of fancy and of terror, to which they [have] led us." he now insisted that the senate return to the real subject, and in a speech which is a model of compact reasoning, sharpened by sarcasm, discussed all the points raised by the federalist senators except their favorite one of the power of the national judiciary to declare acts of congress unconstitutional. this he carefully avoided.[ ] on january , , the new vice-president of the united states, aaron burr, first took the chair as presiding officer of the senate.[ ] within two weeks[ ] an incident happened which, though seemingly trivial, was powerfully and dramatically to affect the course of political events that finally encompassed the ruin of the reputation, career, and fortune of many men. senator jonathan dayton of new jersey, in order, as he claimed, to make the measure less objectionable, moved that "the bill be referred to a select committee, with instructions to consider and report the alterations which may be proper in the judiciary system of the united states."[ ] on this motion the senate tied; and vice-president burr, by his deciding vote, referred the bill to the select committee. in doing this he explained that he believed the federalists sincere in their wish "to ameliorate the provisions of the bill, that it might be rendered more acceptable to the senate." but he was careful to warn them that he would "discountenance, by his vote, any attempt, if any such should be made, that might, in an indirect way, go to defeat the bill."[ ] five days later, one more republican senator, being present, and one federalist senator, being absent, the committee was discharged on motion of senator breckenridge; and the debate continued, the federalists constantly accusing the republicans of a purpose to destroy the independence of the national judiciary, and asserting that national judges must be kept beyond the reach of either congress or president in order to decide fearlessly upon the constitutionality of laws. at last the steady but spirited breckenridge was so irritated that he broke away from the republican plan to ignore this principal article of federalist faith. he did not intend to rise again, he said, but "an argument had been so much pressed" that he felt it must be answered. "i did not expect, sir, to find the doctrine of the power of the courts to annul the laws of congress as unconstitutional, so seriously insisted on.... i would ask where they got that power, and who checks the courts when they violate the constitution?" the theory that courts may annul legislation would give them "the absolute direction of the government." for, "to whom are they responsible?" he wished to have pointed out the clause which grants to the national judiciary the power to overthrow legislation. "is it not extraordinary," said he, "that if this high power was intended, it should nowhere appear?... never were such high and transcendant powers in any government (much less in one like ours, composed of powers specially given and defined) claimed or exercised by construction only."[ ] breckenridge frankly stated the republican philosophy, repeating sometimes word for word the passage which jefferson at the last moment had deleted from his message to congress.[ ] "the constitution," he declared, "intended a separation of the powers vested in the three great departments, giving to each exclusive authority on the subjects committed to it.... those who made the laws are presumed to have an equal attachment to, and interest in the constitution; are equally bound by oath to support it, and have an equal right to give a construction to it.... the construction of one department of the powers vested in it, is of higher authority than the construction of any other department. "the legislature," he continued, "have the exclusive right to interpret the constitution, in what regards the law-making power, and the judges are bound to execute the laws they make. for the legislature would have at least an equal right to annul the decisions of the courts, founded on their construction of the constitution, as the courts would have to annul the acts of the legislature, founded on their construction.[ ]... in case the courts were to declare your revenue, impost and appropriation laws unconstitutional, would they thereby be blotted out of your statute book, and the operations of government arrested?... let gentlemen consider well before they insist on a power in the judiciary which places the legislature at their feet."[ ] the candles[ ] now dimly illuminating the little senate chamber shed scarcely more light than radiated from the broad, round, florid face of gouverneur morris. getting to his feet as quickly as his wooden leg would permit, his features beaming with triumph, the new york senator congratulated "this house, and all america, that we have at length got our adversaries upon the ground where we can fairly meet."[ ] the power of courts to declare legislation invalid is derived from "authority higher than this constitution ... from the constitution of man, from the nature of things, from the necessary progress of human affairs,"[ ] he asserted. in a cause on trial before them, it becomes necessary for the judges to "declare what the law is. they must, of course, determine whether that which is produced and relied on, has indeed the binding force of law." suppose, said morris, that congress should pass an act forbidden by the constitution--for instance, one laying "a duty on exports," and "the citizen refuses to pay." if the republicans were right, the courts would enforce a collection. in vain would the injured citizen appeal to the supreme court; for congress would "defeat the appeal, and render final the judgment of inferior tribunals, subjected to their absolute control." according to the republican doctrine, "the moment the legislature ... declare themselves supreme, they become so ... and the constitution is whatever they choose to make it."[ ] this time morris made a great impression. the federalists were in high feather; even the republicans were moved to admiration. troup reported to king that "the democratical paper at washington pronounced his speech to be the greatest display of eloquence ever exhibited in a deliberative assembly!"[ ] nevertheless, the federalist politicians were worried by the apparent indifference of the rank and file of their party. "i am surprized," wrote bayard, "at the public apathy upon the subject. why do not those who are opposed to the project, express in the public papers or by petitions their disapprobation?... it is likely that a public movement would have great effect."[ ] but, thanks to the former conduct of the judges themselves, no "public movement" developed. conservative citizens were apprehensive; but, as usual, they were lethargic. on february , , the senate, by a strictly party vote[ ] of to , passed the bill to repeal the federalist judiciary act of .[ ] when the bill came up in the house, the federalist leader in that body, james a. bayard of delaware, moved to postpone its consideration to the third monday in march, in order, as he said, to test public opinion, because "few occasions have occurred so important as this."[ ] but in vain did the federalists plead and threaten. postponement was refused by a vote of to .[ ] another plea for delay was denied by a vote of to .[ ] thus the solid republican majority, in rigid pursuance of the party plan, forced the consideration of the bill. the federalist organ in washington, which marshall two years earlier was supposed to influence and to which he probably contributed,[ ] saw little hope of successful resistance. "what will eventually be the issue of the present high-handed, overbearing proceedings of congress it is impossible to determine," but fear was expressed by this paper that conditions would be created "which impartial, unbiased and reflecting men consider as immediately preceding the total destruction of our government and the introduction of disunion, anarchy and civil war."[ ] this threat of secession and armed resistance, already made in the senate, was to be repeated three times in the debate in the house which was opened for the federalists by archibald henderson of north carolina, whom marshall pronounced to be "unquestionably among the ablest lawyers of his day" and "one of the great lawyers of the nation."[ ] "the monstrous and unheard of doctrine ... lately advanced, that the judges have not the right of declaring unconstitutional laws void," was, declared henderson, "the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their government a monarchy, republic, or democracy." if the republican theory of the constitution should prevail, "better at once to bury it with all our hopes."[ ] robert williams of the same state, an extreme but unskillful republican, now uncovered his party's scheme to oust federalist judges, which thus far had carefully been concealed:[ ] "agreeably to our constitution a judge may be impeached," said he, but this punishment would be minimized if judges could declare an act of congress unconstitutional. "however he may err, he commits no crime; how, then, can he be impeached?"[ ] philip r. thompson of virginia, a republican, was moved to the depths of his being: "give the judiciary this check upon the legislature, allow them the power to declare your laws null and void, ... and in vain have the people placed you upon this floor to legislate.[ ]... this is the tree where despotism lies concealed.... nurture it with your treasure, stop not its ramifications, and ... your atmosphere will be contaminated with its poisonous effluvia, and your soaring eagle will fall dead at its root."[ ] thomas t. davis of kentucky, deeply stirred by this picture, declared that the federalists said to the people, you are "incapable" of protecting yourselves; "in the judiciary alone you find a safe deposit for your liberties." the kentucky representative "trembled" at such ideas. "the sooner we put men out of power, who [_sic_] we find determined to act in this manner, the better; by doing so we preserve the power of the legislature, and save our nation from the ravages of an uncontrolled judiciary."[ ] thus again was revealed the republican purpose of dragging from the national bench all judges who dared assert the right, and to exercise the power to declare an act of congress unconstitutional.[ ] the contending forces became ever more earnest as the struggle continued. all the cases then known in which courts directly or by inference had held legislative acts invalid were cited;[ ] and all the arguments that ever had been advanced in favor of the principle of the judicial power to annul legislation were made over and over again. all the reasons for the opinion which john marshall, exactly one year later, pronounced in marbury _vs._ madison were given during this debate. indeed, the legislative struggle now in progress and the result of it, created conditions which forced marshall to execute that judicial _coup d'état_. it should be repeated that an understanding of marbury _vs._ madison is impossible without a thorough knowledge of the debate in congress which preceded and largely caused that epochal decision. the alarm that the repeal was but the beginning of republican havoc was sounded by every federalist member. "this measure," said john stanley of north carolina, "will be the first link in that chain of measures which will add the name of america to the melancholy catalogue of fallen republics."[ ] william branch giles, who for the next five years bore so vital a part in the stirring events of marshall's life, now took the floor and made one of the ablest addresses of his tempestuous career.[ ] he was jefferson's lieutenant in the house.[ ] when the federalists tried to postpone the consideration of the bill,[ ] giles admitted that it presented a question "more important than any that ever came before this house."[ ] but there was no excuse for delay, because the press had been full of it for more than a year and the public was thoroughly informed upon it.[ ] giles was a large, robust, "handsome" virginian, whose lightest word always compelled the attention of the house. he had a very dark complexion, black hair worn long, and intense, "retreating" brown eyes. his dress was "remarkably plain, and in the style of virginia carelessness." his voice was "clear and nervous," his language "powerfully condensed."[ ] this republican gladiator came boldly to combat. how had the federalists contrived to gain their ends? chiefly by "the breaking out of a tremendous and unprecedented war in europe," which had worked upon "the feelings and sympathies of the people of the united states" till they had neglected their own affairs. so it was, he said, that the federalists had been able to load upon the people an expensive army, a powerful navy, intolerable taxes, and the despotic alien and sedition laws. but at last, when, as the result of their maladministration, the federalists saw their doom approaching, they began to "look out for some department of the government in which they could entrench themselves ... and continue to support those favorite principles of irresponsibility which they could never consent to abandon." for this purpose they had selected the judiciary department: "not only because it was already filled" with rabid federalists, "but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people than either of the other departments." thus came the federalist judiciary act of which the republicans were about to repeal. giles could not resist a sneer at marshall. referring to the european war, to which "the feelings and sympathies of the people of the united states were so strongly attracted ... that they considered their own internal concerns in a secondary point of view," giles swiftly portrayed those measures used by the federalists as a pretext. they had, jeered the sharp-tongued virginia republican, "pushed forward the people to the x, y, z, of their political alphabet, before they had well learned ... the a, b, c, of the principles of the [federalist] administration."[ ] but now, when blood was no longer flowing on european battle-fields, the interests of the american people in that "tremendous and unprecedented" combat of nations "no longer turn their attention from their internal concerns; arguments of the highest consideration for the safety of the constitution and the liberty of the citizens, no longer receive the short reply, french partisans! jacobins! disorganizers!"[ ] so "the american people and their congress, in their real persons, and original american characters" were at last "engaged in the transaction of american concerns."[ ] federalist despotism lay prostrate, thank heaven, beneath the conquering republican heel. should it rise again? never! giles taunted the federalists with the conduct of federalist judges in the sedition cases,[ ] and denounced the attempt to fasten british law on the american nation--a law "unlimited in its object, and indefinite in its character," covering "every object of legislation." think, too, of what marshall and the supreme court have done! "they have sent a ... process leading to a mandamus, into the executive cabinet, to examine its concerns."[ ] the real issue between federalists and republicans, declared giles, was "the doctrine of irresponsibility against the doctrine of responsibility.... the doctrine of despotism in opposition to the representative system." the federalist theory was "an express avowal that the people were incompetent to govern themselves." a handsome, florid, fashionably attired man of thirty-five now took the floor and began his reply to the powerful speech of the tempestuous virginian. his complexion and stoutness indicated the generous manner in which all public men of the time lived, and his polished elocution and lofty scorn for all things republican marked him as the equal of gouverneur morris in oratorical finish and federalist distrust of the people.[ ] it was james a. bayard, the federalist leader of the house. he asserted that the republican "designs [were] hostile to the powers of this government"; that they flowed from "state pride [which] extinguishes a national sentiment"; that while the federalists were in charge of the national administration they struggled "to maintain the constitutional powers of the executive" because "the wild principles of french liberty were scattered through the country. we had our jacobins and disorganizers, who saw no difference between a king and a president; and, as the people of france had put down their king, they thought the people of america ought to put down their president. "they [federalists] who considered the constitution as securing all the principles of rational and practicable liberty, who were unwilling to embark upon the tempestuous sea of revolution, in pursuit of visionary schemes, were denounced as monarchists. a line was drawn between the government and the people, and the friends of the government [federalists] were marked as the enemies of the people."[ ] this was the spirit that was now triumphant; to what lengths was it to carry the republicans? did they include the downfall of the judiciary in their plans of general destruction? did they propose to make judges the mere creatures of congress?[ ] bayard skillfully turned the gibe at marshall into a tribute to the chief justice. what did giles mean by his cryptic x. y. z. reference? "did he mean that the dispatches ... were impostures?" though giles "felt no respect" for marshall or pinckney--"two characters as pure, as honorable, and exalted, as any the country can boast of"--yet, exclaimed bayard, "i should have expected that he would have felt some tenderness for mr. gerry."[ ] the republicans had contaminated the country with falsehoods against the federalist administrations; and now the target of their "poisoned arrows" was the national judiciary. "if ... they [the judges] have offended against the constitution or laws of the country, why are they not impeached? the gentleman now holds the sword of justice. the judges are not a privileged order; they have no shelter but their innocence."[ ] in detail bayard explained the facts in the case of marbury _vs._ madison. that the supreme court had been "hardy enough to send their mandate into the executive cabinet"[ ] was, said he, "a strong proof of the value of that constitutional provision which makes them independent. they are not terrified by the frowns of executive power, and dare to judge between the rights of a citizen and the pretensions of a president."[ ] contrast the defects of the judiciary act of with the perfection of the federalist law supplanting it. could any man deny the superiority of the latter?[ ] the truth was that the republicans were "to give notice to the judges of the supreme court of their fate, and to bid them to prepare for their end."[ ] in these words bayard charged the republicans with their settled but unavowed purpose to unseat marshall and his federalist associates.[ ] bayard hotly denied the republican accusation that president adams had appointed to the bench federalist members of congress as a reward for their party services; but, retorted he, jefferson had done that very thing.[ ] he then spoke at great length on the nature of the american judiciary as distinguished from that of british courts, gave a vivid account of the passage of the federalist judiciary act under attack, and finally swung back to the subject which more and more was coming to dominate the struggle--the power of the supreme court to annul acts of congress. again and again bayard restated, and with power and eloquence, all the arguments to support the supervisory power of courts over legislation.[ ] at last he threatened armed resistance if the republicans dared to carry out their plans against the national judiciary. "there are many now willing to spill their blood to defend that constitution. are gentlemen disposed to risk the consequences?... let them consider their wives and children, their neighbors and their friends." destroy the independence of the national judiciary and "the moment is not far when this fair country is to be desolated by civil war."[ ] bayard's speech aroused great enthusiasm among the leaders of his party. john adams wrote: "yours is the most comprehensive masterly and compleat argument that has been published in either house and will have, indeed ... has already had more effect and influence on the public mind than all other publications on the subject."[ ] the _washington federalist_ pronounced bayard's performance to be "far superior, not only to ... the speeches of mr. morris and mr. tracy in the senate, but to any speech of a demosthenes, a cicero, or a chatham."[ ] hardly was bayard's last word spoken when the man who at that time was the republican master of the house, and, indeed, of the senate also, was upon his feet. of medium stature, thin as a sword, his straight black hair, in which gray already was beginning to appear, suggesting the indian blood in his veins, his intense black eyes flaming with the passion of combat, his high and shrilling voice suggesting the scream of an eagle, john randolph of roanoke--that haughty, passionate, eccentric genius--personified the aggressive and ruthless republicanism of the hour. he was clad in riding-coat and breeches, wore long riding-boots, and if the hat of the virginia planter was not on his head, it was because in his nervousness he had removed it;[ ] while, if his riding-whip was not in his hand, it was on his desk where he had cast it, the visible and fitting emblem of this strange man's mastery over his partisan followers.[ ] "he did not rise," he said, his voice quivering and body trembling,[ ] "for the purpose of assuming the gauntlet which had been so proudly thrown by the goliah of the adverse party; not but that he believed even his feeble powers, armed with the simple weapon of truth, a sling and a stone, capable of prostrating on the floor that gigantic boaster, armed cap-a-pie as he was." randolph sneered, as only he could sneer, at the unctuous claims of the federalists, that they had "nobly sacrificed their political existence on the altar of the general welfare"; he refused "to revere in them the self-immolated victims at the shrine of patriotism."[ ] as to the federalist assertion that "the common law of england is the law of the united states in their confederate capacity," randolph observed that the meaning of such terms as "court," "jury," and the like must, of course, be settled by reference to common-law definitions, but "does it follow that that indefinite and undefinable body of law is the irrepealable law of the land? the sense of a most important phrase, 'direct tax,' as used in the constitution, has been ... settled by the acceptation of adam smith; an acceptation, too, peculiar to himself. does the wealth of nations, therefore, form a part of the constitution of the united states?" and would the federalists inform the house what phase of the common law they proposed to adopt for the united states? was it that "of the reign of elizabeth and james the first; or ... that of the time of george the second?" was it that "of sir walter raleigh and captain smith, or that which was imported by governor oglethorpe?" or was it that of some intermediate period? "i wish especially to know," asked randolph, "whether the common law of libels which attaches to this constitution, be the doctrine laid down by lord mansfield, or that which has immortalized mr. fox?" let the federalists reflect on the persecution for libel that had been made under the common law, as well as under the sedition act.[ ] proper restraint upon congress, said randolph, was not found in a pretended power of the judiciary to veto legislation, but in the people themselves, who at the ballot box could "apply the constitutional corrective. that is the true check; every other is at variance with the principle that a free people are capable of self-government." then the imperious virginian boldly charged that the federalists intended to have john marshall and his associates on the supreme bench annul the republican repeal of the federalist judiciary act. "sir," cried randolph, "if you pass the law, the judges are to put their veto upon it by declaring it unconstitutional. here is a new power of a dangerous and uncontrollable nature.... the decision of a constitutional question must rest somewhere. shall it be confided to men immediately responsible to the people, or to those who are irresponsible?... from whom is a corrupt decision most to be feared?... the power which has the right of passing, without appeal, on the validity of your laws, is your sovereign.... are we not as deeply interested in the true exposition of the constitution as the judges can be?" inquired randolph. "is not congress as capable of forming a correct opinion as they are? are not its members acting under a responsibility to public opinion which can and will check their aberrations from duty?" randolph referred to the case of marbury _vs._ madison and then recalled the prosecution of thomas cooper in which the national court refused "to a man under criminal prosecution ... a subpoena to be served on the president, as a witness on the part of the prisoner.[ ]... this court, which it seems, has lately become the guardian of the feeble and oppressed, against the strong arm of power, found itself destitute of all power to issue the writ.... "no, sir, you may invade the press; the courts will support you, will outstrip you in zeal to further this great object; your citizens may be imprisoned and amerced, the courts will take care to see it executed; the helpless foreigner may, contrary to the express letter of your constitution, be deprived of compulsory process for obtaining witnesses in his defense; the courts in their extreme humility cannot find authority for granting it." again marbury _vs._ madison came into the debate:[ ] "in their inquisitorial capacity," the supreme court, according to marshall's ruling in that case, could force the president himself to discharge his executive functions "in what mode" the omnipotent judges might choose to direct. and congress! "for the amusement of the public, we shall retain the right of debating but not of voting."[ ] the judges could forestall legislation by "inflammatory pamphlets," as they had done.[ ] as the debate wore on, little that was new was adduced. calvin goddard of connecticut reviewed the cases in which judges of various courts had asserted the federalist doctrine of the judicial power to decide statutes unconstitutional,[ ] and quoted from marshall's speech on the judiciary in the virginia convention of .[ ] john rutledge, jr., of south carolina, then delivered one of the most distinguished addresses of this notable discussion. suppose, he said, that congress were to pass any of the laws which the constitution forbids, "who are to decide between the constitution and the acts of congress?... if the people ... [are] not shielded by some constitutional checks" their liberties will be "destroyed ... by demagogues, who filch the confidence of the people by pretending to be their friends; ... demagogues who carry daggers in their hearts, and seductive smiles in their hypocritical faces."[ ] rutledge was affected by the prevailing federalist pessimism. "this bill," said he, "is an egg which will produce a brood of mortal consequences.... it will soon prostrate public confidence; it will immediately depreciate the value of public property. who will buy your lands? who will open your western forests? who will build upon the hills and cultivate the valleys which here surround us?" the financial adventurer who would take such risks "must be a speculator indeed, and his purse must overflow ... if there be no independent tribunals where the validity of your titles will be confirmed.[ ]... "have we not seen a state [georgia] sell its western lands, and afterwards declare the law under which they were sold made null and void? their nullifying law would have been declared void, had they had an independent judiciary."[ ] here rutledge anticipated by eight years the opinion delivered by marshall in fletcher _vs._ peck.[ ] "whenever in any country judges are dependent, property is insecure." what had happened in france? "frenchmen received their constitution as the followers of mahomet did their koran, as though it came to them from heaven. they swore on their standards and their sabres never to abandon it. but, sir, this constitution has vanished; the swords which were to have formed a rampart around it, are now worn by the consular janissaries, and the republican standards are among the trophies which decorate the vaulted roof of the consul's palace.[ ] indeed ... [the] subject," avowed rutledge with passionate earnestness, "is perhaps as awful a one as any on this side of the grave. this attack upon our constitution will form a great epoch in the history of our government."[ ] forcible resistance, if the republican assault on the judiciary succeeded, had twice been intimated during the debate. as yet, however, actual secession of the northern and eastern states had not been openly suggested, although it was common talk among the federalists;[ ] but now one of the boldest and frankest of their number broadly hinted it to be the federalist purpose, should the republicans persist in carrying out their purpose of demolishing the national courts.[ ] in closing a long, intensely partisan and wearisome speech, roger griswold of connecticut exclaimed: "there are states in this union who will never consent and are not doomed to become the humble provinces of virginia." joseph h. nicholson of maryland, republican, was hardly less prolix than griswold. he asked whether the people had ever approved the adoption of the common law by the judiciary. "have they ever sanctioned the principle that the judges should make laws for them instead of their representatives?"[ ] tiresome as he was, he made a conclusive argument against the federalist position that the national judiciary might apply the common law in cases not provided for by acts of congress. the debate ran into the month of march.[ ] every possible phase of the subject was gone over time and again. all authorities which the ardent and tireless industry of the contending partisans could discover were brought to light. the pending case of marbury _vs._ madison was in the minds of all; and it was repeatedly dragged into the discussion. samuel w. dana of connecticut examined it minutely, citing the action of the supreme court in the case of the application for a mandamus to the secretary of war upon which the court acted february , : "there does not appear to have been any question respecting the general power of the supreme court, to issue a mandamus to the secretary of war, or any other subordinate officer." that was "a regular mode for obtaining a decision of the supreme court.... when such has been the unquestioned usage heretofore, is it not extraordinary that there has not been prudence enough to say less about the case of marbury against the secretary of state?"[ ] dana then touched upon the general expectation that marshall would declare void the repeal act. because of this very apprehension, the republicans, a few days later, suspended for more than a year the sessions of the supreme court. so dana threatened that if the republicans should pass the bill, the supreme court would annul it; for, said he, the judiciary were sworn to support the constitution, and when they find that instrument on one side and an act of congress on the other, "what is their duty? are they not to obey their oath, and judge accordingly? if so, they necessarily decide, that your act is of no force; for they are sworn to support the constitution. this is a doctrine coeval with the existence of our government, and has been the uniform principle of all the constituted authorities."[ ] and he cited the position taken by national judges in in the matter of the pension commission.[ ] john bacon, that stanch massachusetts republican,[ ] asserted that "the judiciary have no more right to prescribe, direct or control the acts of the other departments of the government, than the other departments of the government have to prescribe or direct those of the judiciary."[ ] the republicans determined to permit no further delay; for the first time in its history the house was kept in session until midnight.[ ] at twelve o'clock, march , , the vote was taken on the final passage of the bill, the thirty-two federalists voting against and the fifty-nine republicans for the measure.[ ] "thus ended this gigantic debate," chronicles the historian of that event.[ ] no discussion in congress had hitherto been so widely reported in the press or excited such general comment. by the great majority of the people the repeal was received with enthusiasm, although some republicans believed that their party had gone too far.[ ] republican papers, however, hailed the repeal as the breaking of one of those judicial fetters which shackled the people, while federalist journals bemoaned it as the beginning of the annihilation of all that was sane and worthy in american institutions. "the fatal bill has passed; our constitution is no more," exclaimed the _washington federalist_ in an editorial entitled "farewell, a long farewell, to all our greatness." the paper despaired of the republic--nobody could tell "what other acts, urged by the intoxication of power and the fury of party rage" would be put through. but it announced that the federalist judges would disregard the infamous republican law: "the judges will continue to hold their courts as if the bill had not passed. 'tis their solemn duty to do it; their country, all that is dear and valuable, call upon them to do it. by the judges this bill will be declared null and void.... and we now ask the mighty victors, what is your triumph?... what is the triumph of the president? he has gratified his malice towards the judges, but he has drawn a tear into the eye of every thoughtful patriot ... and laid the foundation of infinite mischief." the federalist organ declared that the republican purpose was to force a "dissolution of the union," and that this was likely to happen. this significant editorial ended by a consideration of the republican purpose to destroy the supreme court: "should mr. breckenridge now bring forward a resolution to repeal the law establishing the supreme court of the united states, we should only consider it a part of the system to be pursued.... we sincerely expect it will be done next session.... such is democracy."[ ] senator plumer declared, before the final vote, that the passage of the republican repeal bill and of other republican measures meant "anarchy."[ ] the ultra-federalist _palladium_ of boston lamented: "our army is to be less and our navy nothing: our secretaries are to be aliens and our judges as independent as spaniels. in this way we are to save everything, but our reputation and our rights[ ]... has liberty any citadel or fortress, has mob despotism any impediments?"[ ] the _independent chronicle_, on the other hand, "congratulated the public on the final triumph of _republicanism_, in the repeal of the late obnoxious judiciary law."[ ] the republicans of boston and cambridge celebrated the event with discharges of artillery. vans murray reported to king that "the principle of ... disorganizing ... goes on with a destructive zeal. internal taxes--judicial sanctity--all are to be overset."[ ] sedgwick was sure that no defense was left against "legislative usurpation."[ ] "the angels of destruction ... are making haste," moaned fisher ames.[ ] "the angels of destruction" lost no time in striking their next blow. on march , two weeks after the threat of the _washington federalist_ that the supreme court would declare unconstitutional the republican repeal act, a senate committee was appointed to examine further the national judiciary establishment and report a bill for any improvements considered necessary.[ ] within a week the committee laid the measure before the senate,[ ] and on april it was passed[ ] without debate. when it reached the house, however, the federalists had taken alarm. the federalist judiciary act of had fixed the terms of the supreme court in december and june instead of february and august. this new bill, plainly an afterthought, abolished the june session of the supreme court, directed that, thereafter, that tribunal should convene but once each year, and fixed the second monday of february as the time of this annual session. thus did the republicans plan to take away from the supreme court the opportunity to pass upon the repeal of the federalist judiciary act of until the old and defective system of , which it restored, was again in full operation. meanwhile, the wrath of the new national judges, whom the repeal left without offices, would wear itself down, and they would accept the situation as an accomplished fact.[ ] john marshall should have no early opportunity to overturn the repeal act, as the republicans believed he would do if given the chance. neither should he proceed further with the case of marbury _vs._ madison for many months to come.[ ] bayard moved that the bill should not go into effect until july , thus permitting the supreme court to hold its june session; but, said nicholson, that was just what the republicans intended to prevent. was a june session of the supreme court "a source of alarm?" asked bayard. "the effect of the present bill will be, to have no court for fourteen months.... are gentlemen afraid of the judges? are they afraid that they will pronounce the repealing law void?"[ ] nicholson did not care whether the supreme court "pronounced the repealing law unconstitutional or not." the republican postponement of the session for more than a year "does not arise from any design ... to prevent the exercise of power by the judges." but what of the federalists' solicitude for an early sitting of the court? "we have as good a right to suppose gentlemen on the other side are as anxious for a session in june, that this power may be exercised, as they have to suppose we wish to avoid it, to prevent the exercise."[ ] griswold could not credit the republicans with so base a purpose: "i know that it has been said, out of doors, that this is the great object of the bill. i know there have been slanders of this kind; but they are too disgraceful to ascribe to this body. the slander cannot, ought not to be admitted." so griswold hoped that republicans would permit the supreme court to hold its summer session. he frankly avowed a wish for an early decision that the repeal act was void. "i think the speedier it [usurpation] is checked the better."[ ] bayard at last flatly charged the republicans with the purpose of preventing the supreme court from holding the repeal act unconstitutional. "this act is not designed to amend the judicial system," he asserted; "that is but pretense.... it is to prevent that court from expressing their opinion upon the validity of the act lately passed ... until the act has gone into full execution, and the excitement of the public mind is abated.... could a less motive induce gentlemen to agree to suspend the sessions of the supreme court for fourteen months?"[ ] but neither the pleading nor the denunciation of the federalists moved the republicans. on friday, april , , the bill passed and the supreme court of the united states was practically abolished for fourteen months.[ ] at that moment began the movement that finally developed into the plan for the secession of the new england states from the union. it is, perhaps, more accurate to say that the idea of secession had never been entirely out of the minds of the extreme new england federalist leaders from the time theodore sedgwick threatened it in the debate over the assumption bill.[ ] hints of withdrawing from the union if virginia should become dominant crop out in their correspondence. the republican repeal of the judiciary act immediately called forth many expressions in federalist papers such as this from the boston _palladium_ of march , : "whether the rights and interests of the eastern states would be perfectly safe when virginia rules the nation is a problem easy to solve but terrible to contemplate.... as ambitious _virginia_ will not be just, let valiant _massachusetts_ be zealous." fisher ames declared that "the federalists must entrench themselves in the state governments, and endeavor to make state justice and state power a shelter of the wise, and good, and rich, from the wild destroying rage of the southern jacobins."[ ] he thought the federalists had neglected the press. "it is practicable," said he, "to rouse our sleeping patriotism--sleeping, like a drunkard in the snow.... the newspapers have been left to the lazy or the ill-informed, or to those who undertook singly work enough for six."[ ] pickering, the truculent, brave, and persistent, anticipated "a new confederacy.... there will be--and our children at farthest will see it--a separation.... the british provinces, even with the assent of britain, will become members of the northern confederacy."[ ] the more moderate george cabot, on the contrary, thought that the strong defense made by the federalists in congress would induce the republicans to cease their attacks on the national courts. "the very able discussions of the judiciary question," he wrote, "& great superiority of the federalists in all the debates & public writings have manifestly checked the career of the _revolutionists_."[ ] but for once cabot was wrong; the republicans were jubilant and hastened to press their assault more vigorously than ever. the federalist newspapers teemed with long arguments against the repeal and laboriously strove, in dull and heavy fashion, to whip their readers into fighting humor. these articles were little more than turgid repetitions of the federalist speeches in congress, with a passage here and there of the usual federalist denunciation. for instance, the _columbian centinel_, after restating the argument against the repeal act, thought that this "refutes all the absurd doctrines of the jacobins upon that subject, ... and it will be sooner or later declared by the people, in a tone terrible to the present disorganizing party, to be the true construction of their constitution, and the only one compatible with their safety and happiness."[ ] the _independent chronicle_, on the other hand, was exultant. after denouncing "the impudence and scurrility of the federal faction," a correspondent of that paper proceeded in this fashion: "the judiciary! the judiciary! like a wreck on cape cod is dashing at every wave"; but, thank heaven, "instead of the 'essex junto's' judiciary we are sailing by the grace of god in the washington _frigate_--our judges are as at first and mr. jefferson has thought fit to practice the old navigation and steer with the same compass by which _admiral washington_ regulated his log book. the essex junto may be afraid to trust themselves on board but every true washington american will step on board in full confidence of a prosperous voyage. huzza for the _washington judiciary_--no windows broke--no doors burst in--free from leak--tight and dry."[ ] destiny was soon again to call john marshall to the performance of an imperative duty. footnotes: [ ] the senate then met in the chamber now occupied by the supreme court. [ ] see _infra_, chap. iii. [ ] jefferson to congress, dec. , , _works_: ford, ix, _et seq._; also _messages and papers of the presidents_: richardson, i, . [ ] jefferson, jefferson mss. lib. cong., partly quoted in beard: _economic origins of jeffersonian democracy_, - . [ ] for full text of this exposition of constitutional law by jefferson see appendix a. [ ] ames to king, dec. , , king, iv, . like most eminent federalists, except marshall, hamilton, and cabot, fisher ames was soon to abandon his nationalism and become one of the leaders of the secession movement in new england. (see vol. iv, chap. i, of this work.) [ ] see vol. ii, , - , - , of this work. [ ] _journal of samuel maclay_: meginness, . [ ] _annals_, st cong. st sess. . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ - . [ ] _maclay's journal_, . [ ] grayson to henry, sept. , , tyler, i, - . [ ] davie to iredell, aug. , , _life and correspondence of james iredell_: mcree, ii, . [ ] vol. ii, - , of this work. [ ] jay to adams, jan. , , _jay_: johnston, iv, . [ ] _annals_, st cong. d and d sess. . [ ] see vol. i, chap. vi, of this work. the conditions of travel are well illustrated by the experiences of six members of congress, when journeying to philadelphia in . "burke was shipwrecked off the capes; jackson and mathews with great difficulty landed at cape may and traveled one hundred and sixty miles in a wagon to the city; burke got here in the same way. gerry and partridge were overset in the stage; the first had his head broke, ... the other had his ribs sadly bruised.... tucker had a dreadful passage of sixteen days with perpetual storms." (letter of william smith, as quoted by johnson: _union and democracy_, - .) on his way to washington from amelia county in , senator giles was thrown from a carriage, his leg fractured and his knee badly injured. (anderson, .) [ ] this arrangement proved to be so difficult and vexatious that in congress corrected it to the extent of requiring only one justice of the supreme court to hold circuit court with the district judge; but this slight relief did not reach the serious shortcomings of the law. (_annals_, d cong. st and d sess. .) see adams: _u.s._ i, _et seq._, for good summary of the defects of the original judiciary act, and of the improvements made by the federalist law of . [ ] see statement of ogden, _annals_, th cong. st sess. ; of chipman, _ib._ ; of tracy, _ib._ ; of griswold, _ib._ ; of huger, _ib._ . [ ] of course, to some extent this evil still continued in the appeals to the circuit bench; but the ultimate appeal was before judges who had taken no part in the cause. the soundness of the federalist judiciary act of was demonstrated almost a century later, in - , when congress reënacted every essential feature of it. (see "act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the united states, and for other purposes," march , , chap. , amended feb. , , chap. .) [ ] for example, senator cocke of tennessee asserted the expense to be $ , . (_annals_, th cong. st. sess. .) see especially prof. farrand's conclusive article in _am. hist. rev._ v, - . [ ] it was to breckenridge that jefferson had entrusted the introduction of the kentucky resolutions of into the legislature of that state. it was breckenridge who had led the fight for them. at the time of the judiciary debate he was jefferson's spokesman in the senate; and later, at the president's earnest request, resigned as senator to become attorney-general. [ ] breckenridge's constituents insisted that the law be repealed, because they feared that the newly established national courts would conflict with the system of state courts which the legislature of kentucky had just established. (see carpenter, _am. pol. sci. rev._ ix, .) although the repeal had been determined upon by jefferson almost immediately after his inauguration (see jefferson to stuart, april , ; _works_: ford, ix, ), breckenridge relied upon that most fruitful of republican intellects, john taylor "of caroline," the originator of the kentucky resolutions (see vol. ii, , of this work) for his arguments. see taylor to breckenridge, dec. , , _infra_, appendix b. [ ] _annals_, th cong. st sess. - , - , , , . [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] _ib._ . [ ] monroe to breckenridge, jan. , , breckenridge mss. lib. cong. [ ] see _infra_, chaps. iii and iv. [ ] _annals_, th cong. st sess. - . [ ] _annals_, th cong. st sess. . [ ] this unfortunate declaration of morris gave the republicans an opportunity of unlimited demagogic appeal. see _infra_. (italics the author's.) [ ] _annals_, th cong. st sess. - . morris spoke for an hour. there was a "large audience, which is not common for that house." he prepared his speech for the press. (_diary and letters of gouverneur morris_: morris, ii, .) [ ] _annals_, th cong. st sess. . [ ] _ib._ - . senator jackson here refers to the case of marbury _vs._ madison, then pending before the supreme court. (see _infra_, chap. iii.) this case was mentioned several times during the debate. it is plain that the republicans expected marshall to award the mandamus, and if he did, to charge this as another act of judicial aggression for which, if the plans already decided upon did not miscarry, they would make the new chief justice suffer removal from his office by impeachment. (see _infra_, chap. iv.) [ ] _annals_, th cong. st sess. . tracy's speech performed the miracle of making one convert. after he closed he was standing before the glowing fireplace, "half dead with his exertions." senator colhoun of south carolina came to tracy, and giving him his hand, said: "you are a stranger to me, sir, but by ---- you have made me your friend." colhoun said that he "had been told a thousand lies" about the federalist judiciary act, particularly the manner of passing it, and he had, therefore, been in favor of repealing it. but tracy had convinced him, and colhoun declared: "i shall be with you on the question." "may we depend upon you?" asked tracy, wringing the south carolina senator's hand. "by ---- you may," was the response. (morison: _life of the hon. jeremiah smith_, footnote to .) colhoun kept his word and voted with the federalists against his party's pet measure. (_annals_, th cong. st sess. .) the correct spelling of this south carolina senator's name is _colhoun_, and not c_a_lhoun, as given in so many biographical sketches of him. (see _south carolina magazine_ for july, .) [ ] see grigsby: _virginia convention of _, ii, - . this was the same senator who, in violation of the rules of the senate, gave to the press a copy of the jay treaty which the senate was then considering. the publication of the treaty raised a storm of public wrath against that compact. (see vol. ii, , of this work.) senator mason's action was the first occurrence in our history of a treaty thus divulged. [ ] _annals_, th cong. st sess. . [ ] in that case marshall had issued a rule to the secretary of state to show cause why a writ of mandamus should not be issued by the court ordering him to deliver to marbury and his associates commissions as justices of the peace, to which offices president adams had appointed them. (see _infra_, chap. iii.) [ ] _annals_, th cong. st sess. . [ ] _annals_, th cong. st sess. . [ ] _annals_, th cong. st sess. . the eloquence of the virginia senator elicited the admiration of even the rabidly federalist _columbian centinel_ of boston. see issue of february , . [ ] _ib._ . [ ] _ib._ . [ ] _annals_, th cong. st sess. . [ ] _ib._ - . [ ] _annals_, th cong. st sess. . [ ] morris notes in his diary that, on the same day, the senate resolved "to admit a short-hand writer to their floor. this is the beginning of mischief." (morris, ii, - .) [ ] january , . [ ] _annals_, th cong. st sess. . [ ] _annals_, th cong. st sess. . burr's action was perfectly correct. as an impartial presiding officer, he could not well have done anything else. alexander j. dallas, republican attorney-general of pennsylvania, wrote the vice-president a letter approving his action. (dallas to burr, feb. , , davis: _memoirs of aaron burr_, ii, .) nathaniel niles, a rampant republican, sent burr a letter thanking him for his vote. as a republican, he wanted his party to be fair, he said. (niles to burr, feb. , , _ib._ - .) nevertheless, burr's vote was seized upon by his enemies as the occasion for beginning those attacks upon him which led to his overthrow and disgrace. (see chaps. vi, vii, viii, and ix of this volume.) [ ] _annals_, th cong. st sess. - . [ ] see appendix a to this volume. [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] it was five o'clock (_ib._ ) when senator breckenridge began to speak; it must have been well after six when senator morris rose to answer him. [ ] _ib._ . [ ] _ib._ . [ ] _annals_, th cong. st sess. . [ ] troup to king, april , , king, iv, . [ ] bayard to bassett, jan. , , _papers of james a. bayard_: donnan, - . [ ] except colhoun of south carolina, converted by tracy. see _supra_, . [ ] _annals_, th cong. st sess. . [ ] _ib._ . a correspondent of the _columbian centinel_, reporting the event, declared that "the stand which the federal senators have made to preserve the constitution, has been manly and glorious. they have immortalized their names, while those of their opposers will be execrated as the assassins of the constitution." (_columbian centinel_, feb. , .) [ ] _annals_, th cong. st sess. - . [ ] _ib._ - . [ ] see vol. ii, , . [ ] _washington federalist_, feb. , . [ ] henderson in _north carolina booklet_, xvii, . [ ] _annals_, th cong. st sess. - . [ ] see _infra_, chap. iv. [ ] _annals_, th cong. st sess. . [ ] _annals_, th cong. st sess. - . [ ] _ib._ . [ ] _ib._ . [ ] see _infra_, chap. iv. [ ] see, for example, the speeches of thomas morris of new york (_annals_, th cong. st sess. - ); calvin goddard of connecticut (_ib._ - ); john stanley of north carolina (_ib._ - ); roger griswold of connecticut (_ib._ - ). [ ] _annals_, th cong. st sess. . [ ] anderson, . grigsby says that "mr. jefferson pronounced him (giles) the ablest debater of the age." his speech on the repeal act, grigsby declares to have been "by far his most brilliant display." (grigsby: _virginia convention of - _, , .) [ ] anderson, - . [ ] see _supra_, . [ ] this statement, coming from the virginia radical, reveals the profound concern of the republicans, for giles thus declared that the judiciary debate was of greater consequence than those historic controversies over assumption, the whiskey rebellion, the bank, neutrality, the jay treaty, the french complication, the army, and other vital subjects. in most of those encounters giles had taken a leading and sometimes violent part. [ ] _annals_, th cong. st sess. . [ ] story's description of giles six years later: story to fay, feb. , , story, i, - . also see anderson, frontispiece and . giles was thirty-nine years of age. he had been elected to the house in , and from the day he entered congress had exasperated the federalists. it is an interesting though trivial incident that giles bore to madison a letter of introduction from marshall. evidently the circumspect richmond attorney was not well impressed with giles, for the letter is cautious in the extreme. (see anderson, ; also _annals_, th cong. st sess. .) [ ] _annals_, th cong. st sess. - . [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] see _supra_, chap. i. [ ] marbury _vs._ madison (see _infra_, chap. iii). for giles's great speech see _annals_, th cong. st sess. - . [ ] bayard is "a fine, personable man ... of strong mental powers.... nature has been liberal to him.... he has, in himself, vast resources ... a lawyer of high repute ... and a man of integrity and honor.... he is very fond of pleasure ... a married man but fond of wine, women and cards. he drinks more than a bottle of wine each day.... he lives too fast to live long.... he is very attentive to dress and person." (senator william plumer's description of james a. bayard, march , , "repository," plumer mss. lib. cong.) [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _annals_, th cong. st sess. . [ ] bayard's summary of the shortcomings of the ellsworth act of and the excellence of the judiciary act of (_annals_, th cong. st sess. - ) was the best made at that time or since. [ ] _ib._ . [ ] see _infra_, chap. iv. [ ] bayard pointed out that charles pinckney of south carolina, whose "zeal and industry" decided the presidential vote of his state, had been appointed minister to spain; that claiborne of tennessee held the vote of that state and cast it for jefferson, and that jefferson had conferred upon him "the high degree of governor of the mississippi territory"; that mr. linn of new jersey, upon whom both parties depended, finally cast his deciding vote in favor of jefferson and "mr. linn has since had the profitable office of supervisor of his district conferred upon him"; and that mr. lyon of vermont neutralized the vote of his state, but since "his character was low ... mr. lyon's son has been handsomely provided for in one of the executive offices." (_annals_, th cong. st sess. .) bayard named other men who had influenced the vote in the house and who had thereafter been rewarded by jefferson. [ ] _annals_, th cong. st sess. - . [ ] _ib._ - . this was the second open expression in congress of the spirit that led the new england federalist leaders into their futile secession movement. (see _infra_, chaps. iii and vi; also vol. iv, chap. i, of this work.) [ ] adams to bayard, april , ; _bayard papers_: donnan, . [ ] _washington federalist_, feb. , . [ ] members of congress wore their hats during the sessions of house and senate until . for a description of randolph in the house, see tyler, i, . senator plumer pictured him as "a pale, meagre, ghostly man," with "more popular and effective talents than any other member of his party." (plumer to emery, plumer, .) see also plumer's letter to his son, feb. , , in which the new hampshire senator says that "randolph goes to the house booted and spurred, with his whip in his hand, in imitation, it is said, of members of the british parliament. he is a very slight man, but of the common stature." at a distance he looks young, but "upon a nearer approach you perceive his wrinkles and grey hairs. he is, i believe, about thirty." (_ib._ .) [ ] the personal domination which john randolph of roanoke wielded over his party in congress, until he broke with jefferson (see _infra_, chaps. iv and x), is difficult to realize at the present day. nothing like it has since been experienced, excepting only the merciless rule of thaddeus stevens of pennsylvania from until . (see woodburn: _life of thaddeus stevens_, _et seq._) [ ] _washington federalist_, feb. , . [ ] _annals_, th cong. st sess. - . [ ] _annals_, th cong. st sess. . [ ] see _supra_, chap. i, ; also _infra_, chap. ix, where marshall, during the trial of aaron burr, actually issued such a subpoena. randolph was now denouncing the national court before which cooper was tried, because it refused to grant the very writ for the issuing of which marshall in a few years was so rancorously assailed by jefferson personally, and by nearly all republicans as a party. [ ] at the time marshall issued the rule against madison he apparently had no idea that section of the ellsworth judiciary act was unconstitutional. (see next chapter.) [ ] _annals_, th cong. st sess. - . [ ] the federalist organ tried, by ridicule, to minimize randolph's really strong speech. "the speech of mr. randolph was a jumble of disconnected declamation.... he was horribly tiresome to the ear and disgusting to the taste." (_washington federalist_, feb. , .) [ ] _annals_, th cong. st sess. . [ ] _ib._ . see also vol. i, , of this work. [ ] _annals_, th cong. st sess. - . [ ] _ib._ . [ ] _ib._ . [ ] see _infra_, chap. x. [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] see _infra_, chaps. iii and vi. [ ] _annals_, th cong. st sess. - . [ ] _ib._ . [ ] _ib._ - . [ ] in sour disgust morris notes in his diary: "the house of representatives have talked themselves out of self-respect, and at headquarters [white house] there is such an abandonment of manner and such a pruriency of conversation as would reduce even greatness to the level of vulgarity." (march , , morris, ii, .) [ ] _annals_, th cong. st sess. . dana's statement is of first importance and should be carefully noted. it was at the time the universally accepted view of the power of the supreme court to issue writs of mandamus. neither federalists nor republicans had ever questioned the constitutional right of the supreme court to entertain original jurisdiction of mandamus proceedings in proper cases. yet just this was what marshall was so soon to deny in marbury _vs._ madison. (see _infra_, chap. iii.) [ ] _annals_, th cong. st sess. . [ ] _ib._ - . [ ] see _supra_, chap, i, . [ ] _annals_, th cong. st sess. . [ ] hildreth, v, . [ ] bayard to bassett, march , , _bayard papers_: donnan, ; and see _annals_, th cong. st sess. . one republican, dr. william eustis of boston, voted with the federalists. [ ] _hist. last sess. cong. which commenced th dec. _ (taken from the _national intelligencer_), . [ ] tucker: _life of thomas jefferson_, ii, . [ ] _washington federalist_, march , . too much importance cannot be attached to this editorial. it undoubtedly expressed accurately the views of federalist public men in the capital, including marshall, whose partisan views and feelings were intense. it should not be forgotten that his relations with this newspaper were believed to be intimate. (see vol. ii, , , of this work.) [ ] plumer to upham, march , , plumer mss. lib. cong. [ ] march , . [ ] march , . [ ] march , . [ ] vans murray to king, april , , king, iv, . [ ] sedgwick to king, feb. , , _ib._ . [ ] ames to dwight, april , , ames, i, . [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] _ib._ . [ ] they never occupied the bench under the federalist act of . they were appointed, but the swift action of jefferson and the republicans prevented them from entering upon the discharge of their duties. [ ] this case was before the supreme court in december, , and, ordinarily, would have been decided at the next term, june, . [ ] _annals_, th cong. st sess. - . [ ] _annals_, th cong. st sess. . [ ] _ib._ - . [ ] _annals_, th cong. st sess. - . [ ] _ib._ . see also channing, _u.s._ iv, - . [ ] see vol. ii, , of this work. [ ] ames to gore, dec. , , ames, i, . [ ] _ib._ here is another characteristic passage from ames, who accurately expressed new england federalist sentiment: "the second french and first american revolution is now commencing.... the extinction of federalism would be followed by the ruin of the wise, rich, and good." (ames to smith, dec. , , _ib._ - .) [ ] pickering to peters, dec. , , _new-england federalism_: adams, . [ ] cabot to king, march , , king, iv, . [ ] _columbian centinel_, april , . [ ] "bowling" in the _independent chronicle_ of april , . an example of jefferson's amazing skill in directing public opinion is found in the fact that the people were made to feel that the president was following in washington's footsteps. chapter iii marbury versus madison to consider the judges as the ultimate arbiters of all constitutional questions would place us under the despotism of an oligarchy. (jefferson.) the constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts alterable when the legislature shall please to alter it. it is emphatically the province and duty of the judicial department to say what the law is. this is the very essence of judicial duty. (marshall.) to have inscribed this vast truth of conservatism upon the public mind, so that no demagogue not in the last stages of intoxication denies it--this is an achievement of statesmanship which a thousand years may not exhaust or reveal all that is good. (rufus choate.) "rawleigh, jan^{y:} ^{d.} "my dearest polly "you will laugh at my vexation when you hear the various calamaties that have befallen me. in the first place when i came to review my funds, i had the mortification to discover that i had lost silver dollars out of my waist coat pocket. they had worn through the various mendings the pocket had sustained & sought their liberty in the sands of carolina. "i determined not to vex myself with what coud not be remedied & orderd peter to take out my cloaths that i might dress for court when to my astonishment & grief after fumbling several minutes in the portmanteau, staring at vacancy, & sweating most profusely he turned to me with the doleful tidings that i had no pair of breeches. you may be sure this piece of inteligence was not very graciously receivd; however, after a little scolding i determined to make the best of my situation & immediately set out to get a pair made. "i thought i should be a sans culotte only one day & that for the residue of the term i might be well enough dressd for the appearance on the first day to be forgotten. but, the greatest of evils, i found, was followed by still greater! not a taylor in town coud be prevaild on to work for me. they were all so busy that it was impossible to attend to my wants however pressing they might be, & i have the extreme mortification to pass the whole time without that important article of dress i have mentiond. i have no alleviation for this misfortune but the hope that i shall be enabled in four or five days to commence my journey homeward & that i shall have the pleasure of seeing you & our dear children in eight or nine days after this reaches you. "in the meantime i flatter myself that you are well & happy. "adieu my dearest polly i am your ever affectionate j marshall."[ ] with the same unfailing light-heartedness which, nearly a quarter of a century before, had cheered his comrades at valley forge, john marshall, chief justice of the united states, thus went about his duties and bore his troubles. making his circuit in a battered gig or sulky, which he himself usually drove, absent-minded and laughing at himself for the mishaps that his forgetfulness and negligence continually brought upon him, he was seemingly unperturbed in the midst of the political upheaval. yet he was not at ease. rufus king, still the american minister to great britain, had finally settled the controversy over the british debts, upon the very basis laid down by marshall when secretary of state.[ ] but jefferson's administration now did not hesitate to assert that this removal of one cause of conflict with great britain was the triumph of republican diplomacy. marshall, with unreserve so unlike him, reveals to king his disgust and sense of injury, and in doing so portrays the development of political conditions. "the advocates of the present administration ascribe to it great praise," wrote marshall to our minister in london, "for having, with so much dexterity & so little loss, extricated our country from a debt of twenty-four million of dollars in which a former administration had involved it.... the mortifying reflection obtrudes itself, that the reputation of the most wise & skilful conduct depends, in this our capricious world, so much on accident. had mr. adams been reelected president of the united states, or had his successor been [a federalist] ... a very different reception ... would have been given to the same measure. "the payment of a specific sum would then have been pronounced, by those who now take merit to themselves for it, a humiliating national degradation, an abandonment of national interest, a free will offering of millions to britain for her grace & favor, by those who sought to engage in a war with france, rather than repay, in part, by a small loan to that republic, the immense debt of gratitude we owe her." so speaks with bitter sarcasm the new chief justice, and pessimistically continues: "such is, & such i fear will ever be human justice!" he tells king that the federalist "disposition to coalesce" with the republicans, which seemed to be developing during the first few months after jefferson's inauguration, had disappeared; "but," he adds, "the minority [federalist party] is only recovering its strength & firmness. it acquires nothing." then, with the characteristic misgivings of a federalist, he prophesies: "our political tempests will long, very long, exist, after those who are now toss'd about by them shall be at rest."[ ] for more than five years[ ] marshall had foreseen the complicated and dangerous situation in which the country now found itself; and for more than a year[ ] he had, in his ample, leisurely, simple manner of thinking, been framing the constructive answer which he was at last forced to give to the grave question: who shall say with final authority what is and what is not law throughout the republic? in his opinion in the case of marbury _vs._ madison, to which this chapter is devoted, we shall see how john marshall answered this vital question. the philosophy of the virginia and kentucky resolutions had now become the ruling doctrine of the republican party. the writer of the creed of state rights sat in the executive chair, while in house and senate virginia and her daughter kentucky ruled the republican majority. the two states that had declared the right and power of any member of the union to pronounce a national law unconstitutional, and that had actually asserted a national statute to be null and void, had become the dominant force in the national government. the federalist majority in the legislatures of ten states,[ ] it is true, had passed resolutions denouncing that anti-national theory, and had vigorously asserted that the national judiciary alone had the power to invalidate acts of congress.[ ] _but in none of these states had the republican minority concurred_. in all of them the republicans had vigorously fought the federalist denial of the right and power of the states to nullify national laws, and had especially resisted the federalist assertion that this power was in the national judiciary. in the new york legislature, forty-three republicans voted solidly against the federalist reply to virginia and kentucky, while the federalists were able to muster but fifty votes in its favor. in massachusetts, pennsylvania, and maryland, the republican opposition was determined and outspoken. the thirty-three republicans of the vermont legislature cited, in their protest, the position which marshall had taken on the sedition law in his campaign for congress:[ ] "we have ever been of an opinion, with that much and deservedly respected statesman, mr. marshall, (whose abilities and integrity have been doubted by no party, and whose spirited and patriotic defence of his country's rights, has been universally admired)[ ] that 'it was calculated to create _unnecessarily_, discontents and jealousies, at a time, when our very existence as a nation may depend on our union.'"[ ] in southern states, where the federalists were dominant when kentucky and virginia adopted their famous resolutions, the republicans were, nevertheless, so strong that the federalist majority in the legislatures of those states dared not attempt to deny formally the new republican gospel.[ ] so stood the formal record; but, since it had been written, the jeffersonian propaganda had drawn scores of thousands of voters into the republican ranks. the whole south had now decisively repudiated federalism. maryland had been captured; pennsylvania had become as emphatically republican as virginia herself; new york had joined her forces to the republican legions. the federalists still held new england and the states of delaware and new jersey, but even there the incessant republican assaults, delivered with ever-increasing strength, were weakening the federalist power. nothing was plainer than that, if the kentucky and virginia resolutions had been submitted to the legislatures of the various states in - , most of them would have enthusiastically endorsed them. thus the one subject most discussed, from the campaign of to the time when marshall delivered his opinion in marbury _vs._ madison, was the all-important question as to what power, if any, could annul acts of congress.[ ] during these years popular opinion became ever stronger that the judiciary could not do so, that congress had a free hand so far as courts were concerned, and that the individual states might ignore national laws whenever those states deemed them to be infractions of the constitution. as we have seen, the republican vote in senate and house, by which the judiciary act of was repealed, was also a vote against the theory of the supervisory power of the national judiciary over national legislation. should this conclusion go unchallenged? if so, it would have the sanction of acquiescence and soon acquire the strength of custom. what then would become the condition of the country? congress might pass a law which some states would oppose and which they would refuse to obey, but which other states would favor and of which they would demand the enforcement. what would this entail? at the very least it would provoke a relapse into the chaos of the confederation and more probably civil war. or a president might take it upon himself to pronounce null and void a law of congress, as jefferson had already done in the matter of the sedition law,[ ] and if house and senate were of a hostile political party, congress might insist upon the observance of its legislation; but such a course would seriously damage the whole machinery of the national government. the fundamental question as to what power could definitely pass upon the validity of legislation must be answered without delay. some of marshall's associates on the supreme bench were becoming old and feeble, and death, or resignation enforced by illness, was likely at any moment to break the nationalist solidarity of the supreme court;[ ] and the appointing power had fallen into the hands of the man who held the subjugation of the national judiciary as one of his chief purposes. only second in importance to these reasons for marshall's determination to meet the issue was the absolute necessity of asserting that there was one department of the government that could not be influenced by temporary public opinion. the value to a democracy of a steadying force was not then so well understood as it is at present, but the chief justice fully appreciated it and determined at all hazards to make the national judiciary the stabilizing power that it has since become. it should be said, however, that marshall no longer "idolized democracy," as he declared he did when as a young man he addressed the virginia convention of .[ ] on the contrary, he had come to distrust popular rule as much as did most federalists. a case was then pending before the supreme court the decision of which might, by boldness and ingenuity, be made to serve as the occasion for that tribunal's assertion of its right and power to invalidate acts of congress and also for the laying-down of rules for the guidance of all departments of the government. this was the case of marbury _vs._ madison. just before his term expired,[ ] president adams had appointed forty-two persons to be justices of the peace for the counties of washington and alexandria in the district of columbia.[ ] the federalist senate had confirmed these nominations,[ ] and the commissions had been signed and sealed, but had not been delivered. when jefferson was inaugurated he directed madison, as secretary of state, to issue commissions to twenty-five of the persons appointed by adams, but to withhold the commissions from the other seventeen.[ ] among the latter were william marbury, dennis ramsay, robert townsend hooe, and william harper. these four men applied to the supreme court for a writ of mandamus compelling madison to deliver their commissions. the other thirteen did not join in the suit, apparently considering the office of justice of the peace too insignificant to be worth the expense of litigation. indeed, these offices were deemed so trifling that one of adams's appointees to whom madison delivered a commission resigned, and five others refused to qualify.[ ] when the application of marbury and his associates came before marshall he assumed jurisdiction, and in december, , issued the usual rule to madison ordering him to show cause at the next term of the supreme court why the writ of mandamus should not be awarded against him. soon afterward, as we have seen, congress abolished the june session of the supreme court;[ ] thus, when the court again convened in february, , the case of marbury _vs._ madison was still pending. marshall resolved to make use of this unimportant litigation to assert, at the critical hour when such a pronouncement was essential, the power of the supreme court to declare invalid acts of congress that violate the constitution. considering the fact that marshall was an experienced politician, was intimately familiar with the political methods of jefferson and the republican leaders, and was advised of their purposes, he could not have failed to realize the probable consequences to himself of the bold course he now determined to take. as the crawling months of wore on, no signs appeared that the republican programme for overthrowing the independence of the judiciary would be relinquished or modified. on the contrary, the coming of the new year ( ) found the second phase of the republican assault determined upon. at the beginning of the session of the house impeached john pickering, judge of the united states district court for the district of new hampshire. in pennsylvania, the recently elected republican house had impeached judge alexander addison, and his conviction by a partisan vote was assured. already the republican determination to remove samuel chase from the supreme bench was frankly avowed.[ ] moreover, the republicans openly threatened to oust marshall and his federalist associates in case the court decided marbury _vs._ madison as the republicans expected it would. they did not anticipate that marshall would declare unconstitutional that section of the old federalist judiciary act of under which the suit had been brought. indeed, nobody imagined that the court would do that. everybody apparently, except marshall and the associate justices, thought that the case would be decided in marbury's favor and that madison would be ordered to deliver the withheld commissions. it was upon this supposition that the republican threats of impeachment were made. the republicans considered marbury's suit as a federalist partisan maneuver and believed that the court's decision and marshall's opinion would be inspired by motives of federalist partisanship.[ ] there was a particular and powerful reason for marshall to fear impeachment and removal from office; for, should he be deposed, it was certain that jefferson would appoint spencer roane of virginia to be chief justice of the united states. it was well known that jefferson had intended to appoint roane upon the death of chief justice ellsworth.[ ] but ellsworth had resigned in time to permit adams to appoint marshall as his successor and thus thwart jefferson's purpose. if now marshall were removed, roane would be given his place. should he be succeeded by roane, marshall knew that the great principles of nationalism, to the carrying-out of which his life was devoted, would never be asserted by the national judiciary. on the contrary, the supreme court would become an engine for the destruction of every theory of government which marshall held dear; for a bolder, abler, and more persistent antagonist of those principles than spencer roane did not exist.[ ] had he become chief justice those cases in which marshall delivered opinions that vitalized the constitution would have been decided in direct opposition to marshall's views.[ ] but despite the peril, marshall resolved to act. better to meet the issue now, come what might, than to evade it. if he succeeded, orderly government would be assured, the national judiciary lifted to its high and true place, and one element of national disintegration suppressed, perhaps destroyed. if he failed, the country would be in no worse case than that to which it was rapidly tending. no words in the constitution gave the judiciary the power to annul legislation. the subject had been discussed in the convention, but the brief and scattering debate had arisen upon the proposition to make the president and justices of the supreme court members of a council of revision with power to negative acts of congress. no direct resolution was ever offered to the effect that the judiciary should be given power to declare acts of congress unconstitutional. in the discussion of the proposed council of revision there were sharp differences of opinion on the collateral question of the right and wisdom of judicial control of legislative acts.[ ] but, in the end, nothing was done and the whole subject was dropped. such was the record of the constitutional convention when, by his opinion in marbury _vs._ madison, marshall made the principle of judicial supremacy over legislation as much a part of our fundamental law as if the constitution contained these specific words: the supreme court shall have the power to declare invalid any act of congress which, in the opinion of the court, is unconstitutional. in establishing this principle marshall was to contribute nothing new to the thought upon the subject. all the arguments on both sides of the question had been made over and over again since the kentucky and virginia resolutions had startled the land, and had been freshly stated in the judiciary debate in the preceding congress. members of the federalist majority in most of the state legislatures had expressed, in highly colored partisan rhetoric, every sound reason for the theory that the national judiciary should be the ultimate interpreter of the constitution. both federalist and republican newspapers had printed scores of essays for and against that doctrine. in the virginia convention of marshall had announced as a fundamental principle that if congress should pass an unconstitutional law the courts would declare it void,[ ] and in his reply to the address of the majority of the virginia legislature[ ] he had elaborately, though with much caution and some mistiness, set forth his views.[ ] chief justice jay and his associates had complained that the judiciary act of was unconstitutional, but they had not had the courage to announce that opinion from the bench.[ ] justices iredell and paterson, sitting as circuit judges, had claimed for the national judiciary the exclusive right to determine the constitutionality of laws. chief justice jay in charging a grand jury, and associate justice wilson in a carefully prepared law lecture, had announced the same conclusion. various state judges of the federalist faith, among them dana of massachusetts and addison of pennsylvania, had spoken to like effect. at the trial of callender[ ] marshall had heard chase deliver the opinion that the national judiciary had the exclusive power to declare acts of congress unconstitutional.[ ] jefferson himself had written meusnier, the year before the national constitution was framed, that the virginia legislature had passed unconstitutional laws,[ ] adding: "i have not heard that in the other states they have ever infringed their constitution; ... _as the judges would consider any law as void_ which was contrary to the constitution."[ ] just as jefferson, in writing the declaration of independence, put on paper not a single new or original idea, but merely set down in clear and compact form what had been said many times before,[ ] so marshall, in his opinion in marbury _vs._ madison, did nothing more than restate that which had previously been declared by hundreds of men. thomas jefferson and john marshall as private citizens in charlottesville and richmond might have written declarations and opinions all their lives, and to-day none but the curious student would know that such men had ever lived. it was the authoritative position which these two great americans happened to occupy and the compelling emergency for the announcement of the principles they expressed, as well as the soundness of those principles, that have given immortality to their enunciations. learned men have made exhaustive research for legal decisions by which marshall's footsteps may have been guided, or which, at least, would justify his conclusion in marbury _vs._ madison.[ ] the cases thus discovered are curious and interesting, but it is probable that marshall had not heard of many of them. at any rate, he does not cite one of them in the course of this opinion, although no case ever was decided in which a judge needed so much the support of judicial precedents. neither did he know anything whatever of what was said on the subject in the constitutional convention, unless by hearsay, for its sessions were secret[ ] and the journals were not made public until --thirty years after the government was established, and sixteen years after marbury _vs._ madison was decided.[ ] nor was marshall informed of the discussions of the subject in the state conventions that ratified the constitution, except of those that took place in the virginia convention.[ ] on the other hand, he surely had read the judiciary debate in congress, for he was in the capital when that controversy took place and the speeches were fully reported in the washington press. marshall probably was present in the senate and the house when the most notable arguments were made.[ ] more important, however, than written decisions or printed debates in influencing marshall's mind was _the federalist_, which we know he read carefully. in number seventy-eight of that work, hamilton stated the principle of judicial supremacy which marshall whole-heartedly adopted in marbury _vs._ madison. "the interpretation of the laws," wrote hamilton, "is the proper and peculiar province of the courts. a constitution is, in fact, and must be regarded by the judges, as a fundamental law. it therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. if there should happen to be an irreconcilable variance between the two, ... the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."[ ] in this passage hamilton merely stated the general understanding of nearly all the important framers of the constitution. beyond question, marshall considered that principle to have been woven into the very fiber of the nation's fundamental law. in executing his carefully determined purpose to have the supreme court formally announce the exclusive power of that tribunal as the authority of last resort to interpret the constitution and determine the validity of laws by the test of that instrument, marshall faced two practical and baffling difficulties, in addition to those larger and more forbidding ones which we have already considered. the first of these was the condition of the supreme court itself and the low place it held in the public esteem; from the beginning it had not, as a body, impressed the public mind with its wisdom, dignity, or force.[ ] the second obstacle was technical and immediate. just how should marshall declare the supreme court to be the ultimate arbiter of conflicts between statutes and the constitution? what occasion could he find to justify, and seemingly to require, the pronouncement as the judgment of the supreme court of that opinion now imperatively demanded, and which he had resolved at all hazards to deliver? when the republicans repealed the federalist judiciary act of , marshall had actually proposed to his associates upon the supreme bench that they refuse to sit as circuit judges, and "risk the consequences." by the constitution, he said, they were judges of the supreme court only; their commissions proved that they were appointed solely to those offices; the section requiring them to sit in inferior courts was unconstitutional. the other members of the supreme court, however, had not the courage to adopt the heroic course marshall recommended. they agreed that his views were sound, but insisted that, because the ellsworth judiciary act had been acquiesced in since the adoption of the constitution, the validity of that act must now be considered as established.[ ] so marshall reluctantly abandoned his bold plan, and in the autumn of held court at richmond as circuit judge. to the end of his life, however, he held firmly to the opinion that in so far as the republican judiciary repeal act of deprived national judges of their offices and salaries, that legislation was unconstitutional.[ ] had the circuit judges, whose offices had just been taken from them, resisted in the courts, marshall might, and probably would, have seized upon the issue thus presented to declare invalid the act by which the republicans had overturned the new federalist judiciary system. just this, as we have seen, the republicans had expected him to do, and therefore had so changed the sessions of the supreme court that it could not render any decision for more than a year after the new federalist courts were abolished. certain of the deposed national judges had, indeed, taken steps to bring the "revolutionary" republican measure before the supreme court,[ ] but their energies flagged, their hearts failed, and their only action was a futile and foolish protest to the very congress that had wrested their judicial seats from under them.[ ] marshall was thus deprived of that opportunity at the only time he could have availed himself of it. a year afterward, when marbury _vs._ madison came up for decision, the entire national judiciary had submitted to the republican repeal and was holding court under the act of .[ ] this case, then, alone remained as the only possible occasion for announcing, at that critical time, the supervisory power of the judiciary over legislation. marshall was secretary of state when president adams tardily appointed, and the federalist senate confirmed, the forty-two justices of the peace for the district of columbia,[ ] and it was marshall who had failed to deliver the commissions to the appointees. instead, he had, with his customary negligence of details, left them on his desk. scarcely had he arrived at richmond, after jefferson's inauguration, when his brother, james m. marshall, wrote him of the plight in which the newly appointed justices of the peace found themselves as the result of marshall's oversight. the chief justice replied: "i learn with infinite chagrin the 'development of principle' mentioned in yours of the th,"--sarcastically referring to the administration's conduct toward the judiciary,--"& i cannot help regreting it the more as i fear some blame may be imputed to me.... "i did not send out the commissions because i apprehended such as were for a fixed time to be completed when signed & sealed & such as depended on the will of the president might at any time be revoked. to withhold the commission of the marshal is equal to displacing him which the president, i presume, has the power to do, but to withhold the commissions of the justices is an act of which i entertaind no suspicion. i should however have sent out the commissions which had been signed & sealed but for the extreme hurry of the time & the absence of mr. wagner [clerk of the state department] who had been called on by the president to act as his private secretary."[ ] marshall, it thus appears, was thoroughly familiar with the matter when the application of marbury and his three associates came before the supreme court, and took in it a keen and personal interest. by the time[ ] the case came on for final disposition the term had almost half expired for which marbury and his associates had been appointed. the other justices of the peace to whom madison had delivered commissions were then transacting all the business that required the attention of such officials. it was certain, moreover, that the administration would not recognize marbury and his associates, no matter what marshall might decide. in fact, these appointees must have lost all interest in the contest for offices of such slight dignity and such insignificant emoluments. so far, then, as practical results were concerned, the case of marbury _vs._ madison had now come to the point where it was of no consequence whatever to any one. it presented only theoretical questions, and, on the face of the record, even these were as simple as they were unimportant. this controversy, in fact, had degenerated into little more than "a moot case," as jefferson termed it twenty years later.[ ] at the hearing it was proved that the commissions had been signed and sealed. one witness was marshall's brother, james m. marshall. jefferson's attorney-general, levi lincoln, was excused from testifying as to what finally became of them. madison refused to show cause and denied, by utterly ignoring, the jurisdiction of the supreme court to direct or control him in his administration of the office of secretary of state.[ ] charles lee, former attorney-general, counsel for the applicants, argued the questions which he and everybody else thought were involved. he maintained that a mandamus was the proper remedy, made so not only by the nature of the relation of the supreme court to inferior courts and ministerial officers, but by positive enactment of congress in the judiciary law of . lee pointed out that the supreme court had acted on this authority in two previous cases. apparently the court could do one or the other of two things: it could disavow its power over any branch of the executive department and dismiss the application, or it could assert this power in cases like the one before it and command madison to deliver the withheld commissions. it was the latter course that the republicans expected marshall to take. if the chief justice should do this, madison undoubtedly would ignore the writ and decline to obey the court's mandate. thus the executive and judicial departments would have been brought into direct conflict, with every practical advantage in the hands of the administration. the court had no physical means to compel the execution of its order. jefferson would have denounced the illegality of such a decision and laughed at the court's predicament. in short, had the writ to madison been issued, the court would have been powerless to enforce obedience to its own mandate. if, on the contrary, the court dismissed the case, the republican doctrines that the national courts could not direct executives to obey the laws, and that the judiciary could not invalidate acts of congress, would by acquiescence have been admitted. no matter which horn of the dilemma marshall selected, it was hard to see how his views could escape impalement. he chose neither. instead of allowing his cherished purpose of establishing the principle of supervisory power of the judiciary over legislation to be thus wounded and perhaps fatally injured, he made the decision of this insignificant case--about which the applicants themselves no longer cared--the occasion for asserting that principle. and he did assert that principle--asserted it so impressively that for more than a century his conclusion has easily withstood repeated assaults upon it, which still continue. marshall accomplished his purpose by convincing the associate justices of the unconstitutionality of that section of the ellsworth judiciary act of [ ] which expressly conferred upon the supreme court the power to issue writs of mandamus and prohibition, and in persuading them to allow him to announce that conclusion as the opinion of the court. when we consider that, while all the justices agreed with marshall that the provision of the ellsworth judiciary law requiring them to sit as circuit judges was unconstitutional, and yet refused to act upon that belief as marshall wanted them to act, we can realize the measure of his triumph in inducing the same men to hold unconstitutional another provision of the same act--a provision, too, even less open to objection than the one they had sustained. the theory of the chief justice that section of the old judiciary law was unconstitutional was absolutely new, and it was as daring as it was novel. it was the only original idea that marshall contributed to the entire controversy. nobody ever had questioned the validity of that section of the statute which marshall now challenged. ellsworth, who preceded marshall as chief justice, had drawn the act when he was senator in the first congress;[ ] he was one of the greatest lawyers of his time and an influential member of the constitutional convention. one of marshall's associates on the supreme bench at that very moment, william paterson, had also been, with ellsworth, a member of the senate committee that reported the judiciary act of , and he, too, had been a member of the constitutional convention. senators gouverneur morris of new york, william s. johnson of connecticut, robert morris of pennsylvania, william few of georgia, george read and richard bassett of delaware, and caleb strong of massachusetts supported the ellsworth law when the senate passed it; and in the house james madison and george wythe of virginia, abraham baldwin of georgia, and roger sherman of connecticut heartily favored and voted for the act. most of these men were thorough lawyers, and every one of them had also helped to draft the national constitution. here were twelve men, many of them highly learned in the law, makers of the constitution, draftsmen or advocates and supporters of the ellsworth judiciary act of , not one of whom had ever dreamed that an important section of that law was unconstitutional.[ ] furthermore, from the organization of the supreme court to that moment, the bench and bar had accepted it, and the justices of the supreme court, sitting with national district judges, had recognized its authority when called upon to take action in a particular controversy brought directly under it.[ ] the supreme court itself had held that it had jurisdiction, under section , to issue a mandamus in a proper case,[ ] and had granted a writ of prohibition by authority of the same section.[ ] in two other cases this section had come before the supreme court, and no one had even intimated that it was unconstitutional.[ ] when, to his great disgust, marshall was forced to sit as a circuit judge at richmond in the winter of , a case came before him that involved both the validity of the republican repeal act and also the constitutionality of that provision of the ellsworth judiciary law requiring justices of the supreme court to sit as circuit judges. this was the case of stuart _vs._ laird. marshall held merely that the plea which raised these questions was insufficient, and the case was taken to the supreme court on a writ of error. after extended argument justice paterson delivered the opinion of the court, marshall declining to participate in the decision because he had "tried the cause in the court below."[ ] at the same term, then, at which marbury _vs._ madison was decided, and immediately after marshall's opinion in that case was delivered, all the justices of the supreme court except the chief justice, held "that practice and acquiescence under it [the judiciary act of ] for a period of several years, commencing with the organization of the judicial system ... has fixed the construction. it is a contemporary interpretation of the most forcible nature. this practical exposition is too strong and obstinate to be shaken or controlled. of course, the question is at rest, and ought not now to be disturbed."[ ] but the exigency disclosed in this chapter required immediate action, notwithstanding the obstacles above set forth. the issue raised by the republicans--the free hand of congress, unrestrained by courts--must be settled at that time or be abandoned perhaps forever. the fundamental consideration involved must have a prompt, firm, and, if possible, final answer. were such an answer not then given, it was not certain that it could ever be made. as it turned out, but for marbury _vs._ madison, the power of the supreme court to annul acts of congress probably would not have been insisted upon thereafter. for, during the thirty-two years that marshall remained on the supreme bench after the decision of that case, and for twenty years after his death, no case came before the court where an act of congress was overthrown; and none had been invalidated from the adoption of the constitution to the day when marshall delivered his epochal opinion. so that, as a matter of historical significance, had he not then taken this stand, nearly seventy years would have passed without any question arising as to the omnipotence of congress.[ ] after so long a period of judicial acquiescence in congressional supremacy it seems likely that opposition to it would have been futile. for the reasons stated, marshall resolved to take that step which, for courage, statesmanlike foresight, and, indeed, for perfectly calculated audacity, has few parallels in judicial history. in order to assert that in the judiciary rested the exclusive power[ ] to declare any statute unconstitutional, and to announce that the supreme court was the ultimate arbiter as to what is and what is not law under the constitution, marshall determined to annul section of the ellsworth judiciary act of . in taking such a step the chief justice made up his mind that he would sum up in final and conclusive form the reasoning that sustained that principle. marshall resolved to go still further. he would announce from the supreme bench rules of procedure which the executive branch of the government must observe. this was indispensable, he correctly thought, if the departments were to be harmonious branches of a single and national government, rather than warring factions whose dissensions must in the end paralyze the administration of the nation's affairs.[ ] it was not, then, marshall's declaring an act of congress to be unconstitutional that was innovating or revolutionary. the extraordinary thing was the pretext he devised for rendering that opinion--a pretext which, it cannot be too often recalled, had been unheard of and unsuspected hitherto. nothing but the emergency compelling the insistence, at this particular time, that the supreme court has such a power, can fully and satisfactorily explain the action of marshall in holding this section void. in his opinion the chief justice spoke of "the peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it."[ ] he would follow, he said, the points of counsel in the order in which they had been made.[ ] did the applicants have a right to the commissions? this depended, he said, on whether marbury had been appointed to office. if so, he was entitled to the commission which was merely the formal evidence of the appointment. the president had nominated him to the senate, the senate had confirmed the nomination, the president had signed the commission, and, in the manner directed by act of congress, the secretary of state had affixed to it the seal of the united states.[ ] the president could not recall his appointment if "the officer is not removable." delivery of the commission was not necessary to the consummation of the appointment which had already been effected; otherwise "negligence, ... fraud, fire or theft, might deprive an individual of his office." but the truth was that "a copy from the record ... would be, to every intent and purpose, equal to the original."[ ] the appointment of marbury "vested in the officer legal rights ... of his country," and "to withhold his commission is an act ... not warranted by law, but violative of a vested legal right....[ ] "the very essence of civil liberty," continues marshall, "certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. one of the first duties of government is to afford that protection." ours has been "emphatically termed a government of laws, and not of men. it will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right....[ ] "the act of delivering or withholding a commission" is not "a mere political act, belonging to the executive department alone," but a ministerial act, the performance of which is directed by statute. congress had ordered the secretary of war to place the names of certain persons on the pension rolls; suppose that he should refuse to do so? "would the wounded veteran be without remedy?... is it to be contended that the heads of departments are not amenable to the laws of their country?"[ ] would any person whatever attempt to maintain that a purchaser of public lands could be deprived of his property because a secretary of state withheld his patent?[ ] to be sure, the president had certain political powers and could appoint agents to aid him in the exercise of them. the courts had no authority to interfere in this sphere of executive action. for example, the conduct of foreign affairs by the secretary of state, as the representative of the president, can never be examinable by the courts. but the delivery of a commission to an office or a patent to land was a different matter. when congress by statute peremptorily directs the secretary of state or any other officer to perform specific duties on which "the rights of individuals are dependent ... he cannot at his discretion sport away the vested rights of others." if he attempts to do so he is answerable to the courts. "the question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority." the court therefore was empowered to decide the point; and held that madison's refusal to deliver marbury's commission was "a plain violation of that right, for which the laws of his country afford him a remedy."[ ] but was this remedy the writ of mandamus for which marbury had applied? it was, said marshall; but could such an order be directed to the secretary of state? this was a task "peculiarly irksome, as well as delicate,"[ ] for, he observed, there were those who would at first consider it "as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive." far be it from john marshall to do such a thing. he need hardly "disclaim all pretensions to such jurisdiction." not "for a moment" would he entertain "an extravagance so absurd and excessive.... questions in their nature political, ... can never be made in this court." but if the case before him presented only questions concerning legal rights of an individual, "what is there in the exalted station" of the secretary of state which "exempts him from ... being compelled to obey the judgment of the law"? the only remaining question, therefore, was whether a mandamus could issue from the supreme court.[ ] in such manner marshall finally arrived at the examination of the constitutionality of section , which, he said, fitted the present case "precisely"; and "if this court is not authorized to issue a writ of mandamus" to madison, "it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority."[ ] in reaching this point marshall employs almost seven thousand words. fifteen hundred more words are used before he takes up the principle of judicial supremacy over legislation. the fundamental law of the nation, marshall explained, expressly defined the original jurisdiction of the supreme court and carefully limited its authority. it could take original cognizance only of specific cases. in all others, the court was given nothing but "appellate jurisdiction." but he omitted the words that immediately follow in the same sentence--"with such exceptions ... as the congress shall make." yet this language had, for fourteen years, apparently been considered by the whole bench and bar as meaning, among other things, that while congress could _not take from_ the supreme court original jurisdiction in the cases specifically named in article three of the constitution, congress _could add_ other cases to the original jurisdiction of the supreme court. marshall was quite conscious of all this, it would seem. in the argument, counsel had insisted that since "the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified."[ ] but, reasons marshall, in answer to this contention, if congress could thus enlarge the original jurisdiction of the supreme court, "the subsequent part of the section[ ] is mere surplusage, is entirely without meaning, ... is form without substance.... affirmative words are often ... negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, _or they have no operation at all_."[ ] that is to say, when the constitution conferred upon the supreme court original jurisdiction in specified cases, it thereby excluded all others--denied to congress the power to add to the jurisdiction thus affirmatively granted. and yet, let it be repeated, by giving original jurisdiction in cases specifically named, the constitution put it beyond the power of congress to interfere with the supreme court in those cases; but marshall asserted that the specific grant of jurisdiction has "_no operation at all_" unless "a negative or exclusive sense" be given it.[ ] marshall boldly held, therefore, that section of the ellsworth judiciary act was "not warranted by the constitution." such being the case, ought the supreme court to act under this unconstitutional section? as the chief justice stated the question, could "an act, repugnant to the constitution ... become the law of the land"? after writing nearly nine thousand words, he now reached the commanding question: can the supreme court of the united states invalidate an act which congress has passed and the president has approved? marshall avowed that the supreme court can and must do that very thing, and in so doing made marbury _vs._ madison historic. in this, the vital part of his opinion, the chief justice is direct, clear, simple, and convincing. the people, he said, have an elemental right to establish such principles for "their future government, as ... shall most conduce to their own happiness." this was "the basis on which the whole american fabric had been erected." these "permanent" and "fundamental" principles, in the instance of the american government, were those limiting the powers of the various departments: "that those limits may not be mistaken, or forgotten, the constitution is written. to what purpose are powers limited ... if these limits may, at any time, be passed by those intended to be restrained?"[ ] if congress or any other department of the government can ignore the limitations of the constitution, all distinction between government of "limited and unlimited powers" is done away with. to say that "acts prohibited and acts allowed are of equal obligation" is to deny the very purpose for which our fundamental law was adopted. "the constitution controls any legislative act repugnant to it." congress cannot alter it by legislation.[ ] all this, said marshall, was too clear to admit of discussion, but he proceeded, nevertheless, to discuss the subject at great length. there is "no middle ground." the constitution is either "a superior paramount law" not to be changed by legislative enactment, or else "it is on a level with the ordinary legislative acts" and, as such, "alterable" at the will of congress. if the constitution is supreme, then an act of congress violative of it is not law; if the constitution is not supreme, then "written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable." three times in a short space marshall insists that, for congress to ignore the limitations which the constitution places upon it, is to deny the whole theory of government under written constitutions. although the contention that the judiciary must consider unconstitutional legislation to be valid was "an absurdity too gross to be insisted on," marshall would, nevertheless, patiently examine it.[ ] this he did by reasoning so simple and so logical that the dullest citizen could not fail to understand it nor the most astute intellect escape it. but in the process he was tiresomely repetitious, though not to so irritating an extent as he at times became. if two laws conflict, the courts must decide between them. where the constitution and an act of congress apply to a case, "the court must determine which ... governs [it]. this is of the very essence of judicial duty.... if, then, ... the constitution is superior to any ordinary act of the legislature," the judiciary must prefer it to a mere statute. otherwise "courts must close their eyes on the constitution," and see only the legislative enactment.[ ] but to do this "would subvert the very foundation of all written constitutions." it would be to "declare that an act which ... is entirely void, is yet ... completely obligatory," and that congress may do "what is expressly forbidden." this would give to the legislature "a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits." it would be "prescribing limits, and declaring that those limits may be passed at pleasure." this "reduces to nothing" both the letter and the theory of the constitution. that instrument expressly extends the judicial power to cases "arising under the constitution." must the courts decide such a case "without examining the instrument under which it arises?" if the courts must look into the constitution at all, as assuredly they must do in some cases, "what part of it are they forbidden to read or to obey?" marshall cites hypothetical examples of legislation in direct conflict with the fundamental law. suppose that congress should place an export duty on cotton, tobacco, flour, and that the government should bring suit to recover the tax. "ought judgment to be rendered in such a case?" or if a bill of attainder should be passed and citizens prosecuted under it, "must the court condemn to death those victims whom the constitution endeavors to preserve?" take, for example, the crime of treason: the constitution emphatically prescribes that nobody can be convicted of this offense "unless on the testimony of two witnesses to the same overt act, or on confession in open court." the judiciary particularly are addressed--"it prescribes, directly for them, a rule of evidence not to be departed from." suppose that congress should enact a law providing that a citizen might be convicted of treason upon the testimony of one witness or by a confession out of court? which must the court obey--the constitution or the act altering that instrument? did not these illustrations and many others that might be given prove that the constitution must govern courts as well as congress? if not, why does the constitution require judges "to take an oath to support it"? that solemn obligation "applies in an especial manner to their conduct in their official character." how "immoral" to direct them to take this oath "if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!" such contradictions and confusions would make the ceremony of taking the oath of judicial office "a solemn mockery" and even "a crime." there is, then, said marshall, no escape from the conclusion "that a law repugnant to the constitution is void," and that the judicial as well as other departments are bound by the constitution.[ ] the application of marbury and others must therefore be dismissed. thus, by a coup as bold in design and as daring in execution as that by which the constitution had been framed,[ ] john marshall set up a landmark in american history so high that all the future could take bearings from it, so enduring that all the shocks the nation was to endure could not overturn it. such a decision was a great event in american history. state courts, as well as national tribunals, thereafter fearlessly applied the principle that marshall announced, and the supremacy of written constitutions over legislative acts was firmly established. this principle is wholly and exclusively american. it is america's original contribution to the science of law.[ ] the assertion of it, under the conditions related in this chapter, was the deed of a great man. one of narrower vision and smaller courage never would have done what marshall did. in his management and decision of this case, at the time and under the circumstances, marshall's acts and words were those of a statesman of the first rank. his opinion gave fresh strength to the purpose of the republican leaders to subdue the federalist judiciary. it furnished jefferson and his radical followers a new and concrete reason for ousting from the national bench, and especially from the supreme court, all judges who would thus override the will of congress. against himself, in particular, marshall had newly whetted the edge of republican wrath, already over-keen. the trial of john pickering, judge of the united states court for the district of new hampshire, brought by the house before the bar of the senate, was now pushed with cold venomousness to what henry adams calls "an infamous and certainly an illegal conviction"; and then marshall's associate on the supreme bench, justice samuel chase, was quickly impeached for high crimes and misdemeanors. if the republican organization could force from its partisans in the senate a verdict of "guilty" in chase's case also, marshall's official head would be the next to fall.[ ] concerning marshall's assertion of the power of the national judiciary to annul acts of congress and to direct administrative officers in the discharge of their legal duties, jefferson himself said nothing at the time. but the opinion of the chief justice was another ingredient thrown into the caldron of jefferson's heart, where a hatred was brewed that poisoned the great politician to his latest day. many months after the decision in the marbury case, jefferson first broke his silence. "nothing in the constitution has given them [the supreme court] a right to decide for the executive, more than to the executive to decide for them," he wrote. "the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also, in their spheres, would make the judiciary a despotic branch."[ ] again, during the trial of aaron burr,[ ] jefferson denounced marshall for his opinion in marbury _vs._ madison; and toward the close of his life he returned again and again with corroding words to the subject regarding which, at the moment it arose, he concealed, so far as written words were concerned, his virulent resentment. for instance, seventeen years later jefferson wrote that "to consider the judges as the ultimate arbiters of all constitutional questions ... would place us under the despotism of an oligarchy."[ ] but for the time being, jefferson was quiescent. his subtle mind knew how, in political controversies, to control his tongue and pen. it could do no good for him, personally, to make an outcry now; and it might do harm. the doctrine which marshall announced had, jefferson knew, a strong hold on all federalists, and, indeed, on many northern republicans; the bar, especially, upheld it generally. the presidential campaign was drawing near, and for the president openly to attack marshall's position would create a political issue which could win none to the republican cause not already fighting for it, and might keep recruits from joining the republican colors. jefferson was infinitely concerned about his reëlection and was giving practical attention to the strengthening of his party for the approaching contest. "i am decidedly in favor of making all the banks republican, by sharing deposits among them in proportion to the [political] dispositions they show," he wrote to his secretary of the treasury three months after marshall's bold assertion of the dignity and power of the national courts. "it is," he continued, "material to the safety of republicanism to detach the mercantile interests from its enemies and incorporate them into the body of its friends."[ ] furthermore, jefferson was, at that particular moment, profoundly troubled by intimate personal matters and vast national complications. he had been trying, unsuccessfully, to adjust our dispute with france; the radical west was becoming clamorous for a forward and even a militant policy concerning the control of the mississippi river, and especially of new orleans, which commanded the mouth of that commercial waterway; while the federalists, insisting upon bold measures, had a fair prospect of winning from jefferson's support those aggressive and predatory frontiersmen who, until now, had stanchly upheld the republican standard. spain had ceded louisiana to france upon the condition that the territory never should be transferred to any other government; but neither new orleans nor any part of louisiana had actually been surrendered by the spanish authorities. great britain informed the american government that she would not consent to the occupation by the french of any part of spain's possessions on the american continent. hating and distrusting the british, but also in terror of napoleon, jefferson, who was as weak in the conduct of foreign affairs as he was dexterous in the management of political parties, thought to escape the predicament by purchasing the island of orleans and perhaps a strip on the east side of the mississippi river.[ ] a series of events swiftly followed the decision of marbury _vs._ madison which enthralled the eager attention of the whole people and changed the destiny of the republic. three months after marshall delivered his opinion, napoleon, yielding to "the empire of circumstances," as talleyrand phrased it,[ ] offered, and livingston and monroe accepted, the whole of louisiana for less than fifteen million dollars. of course france had no title to sell--louisiana was still legally owned and actually occupied by spain. the united states bought nothing more than a pretension; and, by force of propinquity and power, made it a fact.[ ] the president was amazed when the news reached him. he did not want louisiana[ ]--nothing was further from his mind than the purchase of it.[ ] the immorality of the acquisition affected him not at all; but the inconvenience did. he did not know what to do with louisiana. worse still, the treaty of cession required that the people living in that territory should be admitted into the union, "according to the principles of the federal constitution." so, to his infinite disgust, jefferson was forced to deal with the louisiana purchase by methods as vigorous as any ever advocated by the abhorred hamilton--methods more autocratic than those which, when done by others, he had savagely denounced as unconstitutional and destructive of liberty.[ ] the president doubted whether, under the constitution, we could acquire, and was sure that we could not govern, louisiana, and he actually prepared amendments authorizing the incorporation into the republic of the purchased territory.[ ] no such legal mistiness dimmed the eyes of john marshall who, in time, was to announce as the decision of the supreme court that the republic could acquire territory with as much right as any monarchical government.[ ] to add to his perturbations, the high priest of popular rights found himself compelled to abandon his adored phrase, "the consent of the governed," upon which he had so carefully erected the structure of his popularity, and to drive through congress a form of government over the people of louisiana without consulting their wishes in the least.[ ] the jeffersonian doctrine had been that the union was merely a compact between sovereign states, and that new territory and alien peoples could not be added to it without the consent of all the partners. the federalists now took their stand upon this indefensible ground,[ ] and openly threatened the secession at which they had hinted when the federalist judiciary act was repealed. jefferson was alive to the danger: "whatever congress shall think it necessary to do [about louisiana]," he cautioned one of the republican house leaders, "should be done with as little debate as possible."[ ] a month earlier he wrote: "the constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our union. the executive ... have done an act beyond the constitution."[ ] therefore, he declared, "the less we say about constitutional difficulties respecting louisiana the better ... what is necessary for surmounting them must be done sub-silentio."[ ] the great radical favored publicity in affairs of state only when such a course was helpful to his political plans. on other occasions no autocrat was ever more secretive than thomas jefferson.[ ] seemingly, however, the president was concerned only with his influence on the destiny of the world.[ ] at first the federalist leaders were too dazed to do more than grumble. "the cession of louisiana ... is like selling us a ship after she is surrounded by a british fleet," shrewdly observed george cabot, when the news was published in boston.[ ] fisher ames, of course, thought that "the acquiring of territory by money is mean and despicable," especially when done by republicans. "the less of it [territory] the better.... by adding an unmeasured world beyond that river [mississippi], we rush like a comet into infinite space."[ ] soon, however, their dissatisfaction blew into flame the embers of secession which never had become cold in their bosoms. "i am convinced," wrote uriah tracy, "that the accession of louisiana will accelerate a division of these states; whose whenabouts is uncertain, but somewhen is inevitable."[ ] senator plumer thought that the eastern states should form a new nation: "adopt this western world into the union," he said, "and you destroy at once the weight and importance of the eastern states, and compel them to establish a separate and independent empire."[ ] a few days' reflection brought ames to the conclusion that "our country is too big for union, too sordid for patriotism, too democratic for liberty."[ ] tapping reeve of connecticut made careful inquiry among the federalists in his vicinity and informed tracy that "all ... believe that we must separate, and that this is the most favorable moment."[ ] louisiana, however, was not the only motive of the foremost new england federalists for their scheme of breaking up the republic. as we have seen, the threat of secession was repeatedly made during the republican assault on the judiciary; and now, as a fundamental cause for disunion, the northern federalists speedily harked back to jefferson's purpose of subverting the national courts. the republicans were ruling the nation, virginia was ruling the republicans, jefferson was ruling all. louisiana would permanently turn the balance against the northern and eastern states, already outweighed in the national scales; and the conquest of the national judiciary would remove from that section its last protection against the pillaging hands of the huns and vandals of republicanism. so reasoned the federalists. what could be done to save the rights and the property of "the wise, the rich and the good"? by what pathway could the chosen escape their doom? "the principles of our revolution point to the remedy," declared the soured and flint-hearted pickering. "the independence of the judges is now directly assailed.... i am not willing to be sacrificed by such popular tyrants.... i do not believe in the practicability of a long-continued union."[ ] for the same reasons, roger griswold of connecticut avowed that "there can be no safety to the northern states _without a separation from the confederacy_."[ ] the reverend jedediah morse of new hampshire wrote senator plumer that "our empire ... must ... break in pieces. some think the sooner the better."[ ] and the new hampshire senator replied: "i hope the time is not far distant when ... the sound part will separate from the corrupt."[ ] with the exception of john adams, only one eminent new england federalist kept his head steady and his patriotism undefiled: george cabot, while sympathizing with his ancient party friends, frankly opposed their mad project. holding that secession was impracticable, he declared: "i am not satisfied that the thing itself is to be desired. my habitual opinions have been always strongly against it."[ ] but the expressions of such men as pickering, ames, and griswold indicated the current of new england federalist thought and comment. their secession sentiment, however, did not appeal to the young men, who hailed with joy the opportunity to occupy these new, strange lands which accident, or providence, or jefferson had opened to them. knowledge of this was indeed one cause of the anger of some federalist managers who owned immense tracts in new england and in the ohio valley and wanted them purchased and settled by those now turning their eyes to the alluring farther western country.[ ] they saw with something like fury the shifting of political power to the south and west. the management of the unwelcome louisiana windfall, the conduct of the national campaign, the alarming reports from new england, left jefferson no time to rail at marshall or to attack that "subtle corps of sappers and miners" who were then beginning "to undermine ... our confederated fabric," as jefferson declared seventeen years later.[ ] for the present the great public duty of exposing marshall's decision in marbury _vs._ madison must be deferred. but the mills of democracy were grinding, and after he was reëlected certain impeachments would be found in the grist that would make all right. the defiant marshall would at least be humbled, perhaps--probably--removed from office. but all in good time! for the present jefferson had other work to do. he himself must now exercise powers which, according to his philosophy and declarations, were far beyond those conferred upon him by the constitution. so it came about that the first of marshall's great constitutional opinions received scant notice at the time of its delivery. the newspapers had little to say about it. even the bench and the bar of the country, at least in the sections remote from washington, appear not to have heard of it,[ ] or, if they had, to have forgotten it amid the thrilling events that filled the times. because popular interest had veered toward and was concentrated upon the louisiana purchase and the renewal of war in europe, republican newspapers, until then so alert to discover and eager to attack every judicial "usurpation," had almost nothing to say of marshall's daring assertion of judicial supremacy which later was execrated as the very parent of constitutional evil. an empire had been won under jefferson; therefore jefferson had won it--another proof of the far-seeing statesmanship of "the man of the people." of consequence he must be reëlected. such was the popular logic; and reëlected jefferson was--triumphantly, almost unanimously. circumstances which had shackled his hands now suddenly freed them. henceforth the president could do as he liked, both personally and politically. no longer should john marshall, the abominated head of the national judiciary, rest easy on the bench which his audacity had elevated above president and congress. the opinion of the "usurping" chief justice in marbury _vs._ madison should have answer at last. so on with the impeachment trial of samuel chase! let him be deposed, and then, if marshall would not bend the knee, that obdurate judicial defender of nationalism should follow chase into desuetude and disgrace. the incessant clamor of the federalist past-statesmen, unheard by the popular ear, had nevertheless done some good--all the good it ought to have done. it had aroused misgivings in the minds of certain northern republican senators as to the expediency, wisdom, and justice of the republican plan to shackle or overthrow the national judiciary. this hesitation was, however, unknown to the masters of the republican organization in congress. the federalists themselves were totally unaware of it. only jefferson, with his abnormal sensibility, had an indistinct impression that somewhere, in the apparently perfect alignment of the republican forces, there was potential weakness. marshall was gifted with no such divination. he knew only the fate that had been prepared for him. a crisis was reached in his career and a determinative phase of american history entered upon. his place as chief justice was to be made secure and the stability of american institutions saved by as narrow a margin as that by which the national constitution had been established. footnotes: [ ] marshall to his wife, jan. , , ms. [ ] see vol. ii, - , of this work. [ ] marshall to king, may , , king, iv, - . [ ] since the adoption of the kentucky and virginia resolutions in . (see vol. ii, chaps. x, xi, xii, of this work.) [ ] since the republican repeal of the federalist judiciary act was proposed. see _supra_, . [ ] maryland, pennsylvania, new jersey, delaware, new york, vermont, new hampshire, massachusetts, connecticut, rhode island. [ ] the federalist majority in vermont resolved that: "it belongs not to _state legislatures_ to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the _judiciary courts of the union_." (_records of governor and council of vermont_, iv, .) the federalist majority in the maryland legislature asserted that "no state government ... is competent to declare an act of the federal government unconstitutional, ... that jurisdiction ... is exclusively vested in the courts of the united states." (anderson, in _am. hist. rev._ v, .) the new york federalists were slow to act, but finally resolved "that the right of deciding on the constitutionality of all laws passed by congress ... appertains to the judiciary department." (_ib._ - .) connecticut federalists declared that the kentucky and virginia plan was "hostile to the existence of our national union." (_ib._ .) in delaware the then dominant party decided that the kentucky and virginia resolutions were "not a fit subject" for their consideration. (_ib._ .) the pennsylvania federalist majority resolved that the people "have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding the constitutionality of all legislative acts." (anderson, in _am. hist. rev._ v, .) on february , , massachusetts replied to the virginia resolutions that: "this legislature are persuaded that the decision of all cases in law or equity, arising under the constitution of the united states, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the u. states." (_mass. senate journal, - _, xix, , ms. volume mass. state library.) such was the general tenor of the federalists' pronouncements upon this grave problem. but because the people believed the sedition law to be directed against free speech, the federalist supremacy in many of the states that insisted upon these sound nationalist principles was soon overthrown. the resolutions of the republican minorities in the legislatures of the federalist states were emphatic assertions that any state might declare an act of congress unconstitutional and disregard it, and _that the national judiciary did not have supervisory power over legislation_. [ ] see vol. ii, - , of this work. [ ] referring to marshall's conduct in the french mission. (see vol. ii, chaps. vii, viii, ix, of this work.) [ ] anderson, in _am. hist. rev._ v, . [ ] _ib._ - . [ ] the questions raised by the kentucky and virginia resolutions were principal themes of debate in state legislatures, in the press, in congressional campaigns, and in the presidential contest of . the judiciary debate of was, in part, a continuance of these popular discussions. [ ] see _supra_, . [ ] within a year after marbury _vs._ madison was decided, albert moore, one of the federalist associate justices of the supreme court, resigned because of ill health and his place was filled by william johnson, a republican of south carolina. [ ] see vol. i, , of this work. [ ] march , . [ ] _journal of the executive proceedings of the senate_, i, . [ ] _ib._ . [ ] _ib._ . jefferson did this because, as he said, the appointees of adams were too numerous. [ ] _journal, exec. proc. senate_, i, . [ ] see _supra_, - . [ ] see _infra_, chap. iv. [ ] this belief is strikingly shown by the comment of the republican press. for example, just before marshall delivered his opinion, a correspondent of the _independent chronicle_ of boston sent from washington this article: "the efforts of _federalism_ to exalt the judiciary over the executive and legislature, and to give that favorite department a political character & influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other; but will probably terminate in the degradation and disgrace of the judiciary. "politics are more improper and dangerous in a court of justice, if possible, than in the pulpit. political charges, prosecutions, and similar modes of official influence, ought never to have been resorted to by any party. the fountains of justice should be unpolluted by party passions and prejudices. "the _attempt_ of the supreme court of the united states, by a mandamus, to control the executive functions, is a new experiment. it seems to be no less than a commencement of war between the constituted departments. "the court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office. but our _republican_ frame of government is so firm and solid, that there is reason to hope it will remain unshaken by the assaults of opposition, & the conflicts of interfering departments. "the will of the nation, deliberately and constitutionally expressed, must and will prevail, the predictions and exertions of _federal_ monarchists and aristocrats to the contrary notwithstanding." (_independent chronicle_, march , .) marshall's opinion was delivered february . it took two weeks of fast traveling to go from washington to boston. ordinary mail required a few days longer. the article in the _chronicle_ was probably sent while marbury _vs._ madison was being argued. [ ] dodd, in _am. hist. rev._ xii, . under the law marshall's successor must come from virginia or north carolina. [ ] as president of the court of appeals of virginia he later challenged marshall and brought about the first serious conflict between the courts of a state and the supreme tribunal of the nation; and as a pamphleteer he assailed marshall and his principles of nationalism with unsparing rigor. (see vol. iv, chaps. iii, and vi, of this work.) [ ] for example, in fletcher _vs._ peck, roane would have held that the national courts could not annul a state statute; in martin _vs._ hunter's lessees and in cohen _vs._ virginia, that the supreme court could not review the judgment of a state court; in mcculloch _vs._ maryland, that congress could not exercise implied powers, but only those expressly granted by the specific terms of the constitution, etc. all this we know positively from roane's own writings. (see vol. iv, chaps. iii, vi, and vii, of this work.) [ ] it seems probable, however, that it was generally understood by the leading men of the convention that the judiciary was to exercise the power of invalidating unconstitutional acts of congress. (see corwin: _doctrine of judicial review_, - ; beard: _supreme court and the constitution_, - ; mclaughlin: _the courts, the constitution and parties_, - .) in the constitutional convention, elbridge gerry of massachusetts asserted that the judicial function of expounding statutes "involved a power of deciding on their constitutionality." (_records of the federal convention of _: farrand, i, .) rufus king of massachusetts--later of new york--was of the same opinion. (_ib._ .) on the other hand, franklin declared that "it would be improper to put it in the power of any man to negative a law passed by the legislature because it would give him the controul of the legislature." (_ib._) madison felt "that no man would be so daring as to place a veto on a law that had passed with the assent of the legislature." (_ib._) later in the debate, madison modified his first opinion and declared that "a law violating a constitution established by the people themselves, would be considered by the judges null & void." (_ib._ ii, .) george mason of virginia said that the judiciary "could declare an unconstitutional law void.... he wished the further use to be made of the judges of giving aid in preventing every improper law." (_ib._ .) gouverneur morris of pennsylvania--afterwards of new york--dreaded "legislative usurpations" and felt that "encroachments of the popular branch ... ought to be guarded agst." (_ib._ .) gunning bedford, jr., of delaware was against any "check on the legislative" with two branches. (_ib._ i, - .) james wilson of pennsylvania insisted that power in the judiciary to declare laws unconstitutional "did not go far enough"--the judges should also have "revisionary power" to pass on bills in the process of enactment. (_ib._ ii, .) luther martin of maryland had no doubt that the judiciary had "a negative" on unconstitutional laws. (_ib._ .) john francis mercer of maryland "disapproved of the doctrine that the judges as expositors of the constitution should have authority to declare a law void." (_records, fed. conv._: farrand, .) john dickinson of delaware "thought no such power ought to exist," but was "at a loss what expedient to substitute." (_ib._ .) charles pinckney of south carolina "opposed the interference of the judges in the legislative business." (_ib._ .) the above is a condensed _précis_ of all that was said in the constitutional convention on this vital matter. [ ] see vol. i, , of this work. [ ] the virginia resolutions. [ ] address of the minority, jan. , , _journal of the house of delegates of virginia, - _, - . [ ] jay to iredell, sept. , , enclosing statement to president washington, _iredell_: mcree, - ; and see letter of jay to washington, aug. , , _jay_: johnston, iii, - . [ ] see _supra_, , footnote . [ ] wharton: _state trials_, - . [ ] jefferson to meusnier, jan. , , _works_: ford, v, - . [ ] jefferson to meusnier, jan. , , _works_: ford, v, - . (italics the author's.) [ ] for instance, the legislature of rhode island formally declared independence almost two months before congress adopted the pronouncement penned by jefferson, and jefferson used many of the very words of the tiny colony's defiance. in her declaration of independence in may, , virginia set forth most of the reasons stated by jefferson a few weeks later in similar language. [ ] for these cases and references to studies of the question of judicial supremacy over legislation, see appendix c. [ ] see vol. i, , of this work. [ ] see _records fed. conv._: farrand, i, introduction, xii. [ ] elliot's _debates_ were not published until - . [ ] until very recently justices of the supreme court often came to the senate to listen to debates in which they were particularly interested. [ ] _the federalist_: lodge, - . madison also upheld the same doctrine. later he opposed it, but toward the end of his life returned to his first position. (see vol. iv, chap. x, of this work.) [ ] john jay had declined reappointment as chief justice because among other things, he was "perfectly convinced" that the national judiciary was hopelessly weak. (see _supra_, .) the first chief justice of the united states at no moment, during his occupancy of that office, felt sure of himself or of the powers of the court. (see jay to his wife, _jay_: johnston, iii, .) jay had hesitated to accept the office as chief justice when washington tendered it to him in , and he had resigned it gladly in to become the federalist candidate for governor of new york. washington offered the place to patrick henry, who refused it. (see henry: _patrick henry--life, correspondence and speeches_, ii, - ; also tyler, i, .) the office was submitted to william cushing, an associate justice of the supreme court, and he also refused to consider it. (wharton: _state trials_, .) so little was a place on the supreme bench esteemed that john rutledge resigned as associate justice to accept the office of chief justice of the supreme court of south carolina. (_ib._ .) jefferson considered that the government of new orleans was "the second office in the united states in importance." (randal, iii, .) for that matter, no national office in washington, except the presidency, was prized at this period. senator bailey of new york actually resigned his seat in the senate in order to accept the office of postmaster at new york city. (_memoirs, j. q. a._: adams, i, .) edmund randolph, when attorney-general, deplored the weakening of the supreme court, and looked forward to the time when it should be strengthened. (randolph to washington, aug. , , _writings of george washington_: sparks, x, .) the weakness of the supreme court, before marshall became chief justice, is forcibly illustrated by the fact that in designing and building the national capitol that tribunal was entirely forgotten and no chamber provided for it. (see hosea morrill knowlton in _john marshall--life, character and judicial services_: dillon, i, - .) when the seat of government was transferred to washington, the court crept into an humble apartment in the basement beneath the senate chamber. [ ] _new york review_, iii, . the article on chief justice marshall in this periodical was written by chancellor james kent, although his name does not appear. [ ] see vol. iv, chap. ix. [ ] see tilghman to smith, may , , morison: _smith_, - . "a general arrangement [for action on behalf of the deposed judges] will be attempted before we separate. it is not descrete to say more at present." (bayard to bassett, april , , _bayard papers_: donnan, .) [ ] see "protest of judges," _american state papers, miscellaneous_, i, . writing to wolcott, now one of the displaced national circuit judges (wolcott's appointment was secured by marshall; see vol. ii, , of this work), concerning "the outrage committed by congress on the constitution" (cabot to wolcott, dec. , , lodge: _cabot_, ), cabot said: "i cannot but approve the intention of your judicial corps to unite in a memorial or remonstrance to congress." he considered this to be "a manifest duty" of the judges, and gave wolcott the arguments for their action. (cabot to wolcott, oct. , , _ib._ - .) a proposition to submit to the supreme court the constitutionality of the repeal act was rejected january , . (_annals_, th cong. d sess. .) [ ] see _infra_, , . [ ] see _supra_, . [ ] marshall to james m. marshall, march , , ms. [ ] february, . [ ] jefferson to johnson, june , , _works_: ford, xii, footnote to . [ ] see cranch, - . [ ] section provided, among other things, that "the supreme court ... shall have power to issue writs of prohibition to the district courts ... and writs of _mandamus_, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the united states." (_u.s. statutes at large_, i, ; _annals_, st cong. d sess. .) [ ] see _supra_, - . [ ] see dougherty: _power of the federal judiciary over legislation_, . professor corwin says that not many years later marshall concurred in an opinion of the supreme court which, by analogy, recognized the validity of it. (corwin, - .) [ ] u.s. _vs._ ravara, dallas, . [ ] u.s. _vs._ lawrence, dallas, . [ ] u.s. _vs._ peters, _ib._ . [ ] in the argument of marbury _vs._ madison, charles lee called marshall's attention to the case of u.s. _vs._ hopkins, in the february term, , in which a motion was made for a mandamus to hopkins as loan officer for the district of virginia, and to the case of one john chandler of connecticut, also in february, , in which a motion was made in behalf of chandler for a mandamus to the secretary of war. these cases do not seem to have been reported, and lee must have referred to manuscript records of them. (see cranch, - .) samuel w. dana of connecticut also referred to the chandler case during the judiciary debate in the house, march, . (see _annals_, th cong. st sess. - .) [ ] cranch, . [ ] stuart _vs._ laird, cranch, . [ ] the next case in which the supreme court overthrew an act of congress was that of scott _vs._ sandford--the famous dred scott case, decided in . in this case the supreme court held that congress had no power to prohibit slavery in the territory purchased from france in (the louisiana purchase), and that the act of march , , known as the missouri compromise, was unconstitutional, null, and void. (see scott _vs._ sandford, howard, _et seq._) [ ] the president can veto a bill, of course, on the ground of unconstitutionally; but, by a two thirds vote, congress can pass it over the executive's disapproval. [ ] carson, i, ; and see especially adams: _u.s._ i, . [ ] cranch, . [ ] this seems to have been inaccurate. compare lee's argument with marshall's opinion. [ ] cranch, . [ ] cranch, . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] cranch, - . [ ] _ib._ . [ ] cranch, . [ ] _ib._ . [ ] cranch, . [ ] in all "other cases ... the supreme court shall have appellate jurisdiction ... with such exceptions ... as the congress shall make." [ ] _ib._ . (italics the author's.) [ ] cranch, . this particular part of the text adopts professor edward s. corwin's careful and accurate analysis of marshall's opinion on this point. (see corwin, - .) [ ] cranch, . [ ] _ib._ - . [ ] cranch, . [ ] _ib._ . [ ] cranch, - . [ ] see vol. i, , of this work. [ ] it must be borne in mind that the american constitution declares that, in and of itself, it is law--the supreme law of the land; and that no other written constitution makes any such assertion. [ ] see _infra_, chap. iv. [ ] jefferson to mrs. adams, sept. , , _works_: ford, x, footnote to . [ ] see _infra_, chap. viii. [ ] jefferson to jarvis, sept. , , _works_: ford, xii, . yet, at the time when he was founding the republican party, jefferson had written to a friend that "the laws of the land, administered by upright judges, would protect you from any exercise of power unauthorized by the constitution of the united states." (jefferson to rowan, sept. , , _ib._ viii, .) [ ] jefferson to gallatin, july , , _works_: ford, x, - . it should be remembered that most of the banks and the financial and commercial interests generally were determined opponents of jefferson and republicanism. as a sheer matter of "practical politics," the president cannot be fairly criticized for thus trying to weaken his remorseless foes. [ ] see channing: _u.s._ iv, - . [ ] talleyrand to decrès, may , , as quoted in adams: _u.s._ ii, . [ ] morison: _otis_, i, ; see also adams: _u.s._ ii, . [ ] see instructions to livingston and monroe, _am. state papers, foreign relations_, ii, . [ ] adams: _u.s._ i, - . [ ] _ib._ ii, - . [ ] _works_: ford, x, - . [ ] american insurance company _et al._ _vs._ canter, peters, - , and see vol. iv, chap. iii, of this work. [ ] see _u.s. statutes at large_, ii, ; and _annals_, th cong. d sess. . [ ] for instance, senator plumer, two years later, thus stated the old republican doctrine which the federalists, in defiance of their party's creed and traditions, had now adopted as their own: "we cannot admit a new partner into the union, from without the original limits of the united states, without the consent, first obtained, of each of the partners composing the firm." (plumer to smith, feb. , , plumer, .) [ ] jefferson to nicholas, sept. , , _works_: ford, x, . [ ] jefferson to breckenridge, aug. , , _ib._ . [ ] jefferson to madison, aug. , , _ib._ . [ ] "the medicine for that state [north carolina] must be very mild & secretly administered." (jefferson to nicholas, april , , _ib._ ix, ; and see adams: _u.s._ iii, .) [ ] "the millenium was to usher in upon us as the irresistible consequence of the goodness of heart, integrity of mind, and correctness of disposition of mr. jefferson. all nations, even pirates and savages, were to be moved by the influence of his persuasive virtue and masterly skill in diplomacy." (eaton's account of a call on president jefferson, , _life of the late gen. william eaton_: prentiss, ; also quoted in adams: _u.s._ ii, .) [ ] cabot to king, july , , king, iv, . the louisiana purchase was first publicly announced through the press by the _independent chronicle_ of boston, june , . (adams: _u.s._ ii, - .) [ ] ames to gore, oct. , , ames, i, - . [ ] tracy to mchenry, oct. , , steiner: _life and correspondence of james mchenry_, . [ ] oct. , , plumer, . [ ] ames to dwight, oct. , , ames, i, . [ ] reeve to tracy, feb. , , _n.e. federalism_: adams, ; and see adams: _u.s._ ii, . members of congress among the federalists and republicans became so estranged that they boarded in different houses and refused to associate with one another. (plumer, , .) [ ] pickering to cabot, jan. , , lodge: _cabot_, . [ ] griswold to wolcott, march , , _n.e. federalism_: adams, . [ ] morse to plumer, feb. , , plumer, . [ ] plumer to morse, march , , _ib._ [ ] cabot to king, march , , lodge: _cabot_, . [ ] see morison: _otis_, i, . [ ] jefferson to ritchie, dec. , , _works_: ford, xii, . [ ] for instance, in , the united states district court of massachusetts, in the decision of a case requiring all possible precedents like that of marbury _vs._ madison, did not so much as refer to marshall's opinion, although every other case that could be found was cited. marbury _vs._ madison, long afterwards, was added in a footnote to the printed report. (mclaughlin, , citing _am. law journal_, old series, ii, - .) marshall's opinion in marbury _vs._ madison was first referred to by counsel in a legal controversy in _ex parte_ burford, ( cranch, ). robert goodloe harper next cited it in his argument for bollmann ( cranch, ; and see _infra_, chap. vii). marshall referred to it in his opinion in that case, and justice william johnson commented upon it at some length. a year later marshall's opinion in marbury _vs._ madison was cited by jefferson's attorney-general, cæsar a. rodney. in the case _ex parte_ gilchrist _et al. vs._ the collector of the port of charleston, s.c. ( hughes, ), the united states court for that circuit, consisting of johnson, associate justice of the supreme court, and the judge of the district court, granted a mandamus under the section of the judiciary act which marshall and the entire court had, five years before, declared to be unconstitutional, so far as it conferred original jurisdiction upon the supreme court in applications for mandamus. rodney wrote to the president a letter of earnest protest, pointing out the fact that the court's action in the gilchrist case was in direct antagonism to the opinion in marbury _vs._ madison. but jefferson was then so savagely attacking marshall's rulings in the burr trial (see _infra_, chaps. vii, viii, ix) that he was, at last, giving public expression of his disapproval of the opinion of the chief justice in marbury _vs._ madison. he did not even answer rodney's letter. chapter iv impeachment the judges of the supreme court must fall. our affairs approach an important crisis. (william plumer.) these articles contained in themselves a virtual impeachment of not only mr. chase but of all the judges of the supreme court. (john quincy adams.) we shall bring forward such a specimen of judicial tyranny, as, i trust in god, will never be again exhibited in our country. (john randolph.) we appear for an ancient and infirm man whose better days have been worn out in the service of that country which now degrades him. (joseph hopkinson.) our property, our liberty, our lives can only be protected by independent judges. (luther martin.) "we _want your offices_, for the purpose of giving them to men who will fill them better." in these frank words, senator william branch giles[ ] of virginia stated one of the purposes of the republicans in their determined attack on the national judiciary. he was speaking to the recently elected young federalist senator from massachusetts, john quincy adams.[ ] they were sitting before the blazing logs in the wide fireplace that warmed the senate chamber. john randolph, the republican leader of the house, and israel smith, a republican senator from vermont, were also in the group. the talk was of the approaching trial of samuel chase, associate justice of the supreme court of the united states, whom the house had impeached for high crimes and misdemeanors. giles and randolph were, "with excessive earnestness," trying to convince the doubting vermont senator of the wisdom and justice of the republican method of ousting from the national bench those judges who did not agree with the views of the republican party. giles scorned the idea of "an _independent_ judiciary!" the independence claimed by the national judges was "nothing more nor less than an attempt to establish an aristocratic despotism in themselves." the power of the house to impeach, and of the senate to try, any public officer was unlimited. "if," continued giles, "the judges of the supreme court should dare, _as they had done_, to declare acts of congress unconstitutional, or to send a mandamus to the secretary of state, _as they had done_, it was the undoubted right of the house to impeach them, and of the senate to remove them for giving such opinions, however honest or sincere they may have been in entertaining them." he held that the senate, when trying an impeached officer, did not act as a court. "removal by impeachment was nothing more than a declaration by congress to this effect: you hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation."[ ] thus giles made plain the republican objective. judges were to be removed for any cause that a dominant political party considered to be sufficient.[ ] the national judiciary was, in this manner, to be made responsive to the popular will and responsible to the representatives of the people in the house and of the states in the senate.[ ] giles, who was now jefferson's personal representative in the senate,[ ] as he had been in the house, bore down upon his mild but reluctant fellow partisan from vermont in a "manner dogmatical and peremptory." not only must the aggressive and irritating chase be stripped of his robes, but the same fate must fall upon "all other judges of the supreme court except the one last appointed,"[ ] who, being a republican, was secure.[ ] adams rightly concluded that the plan was to "have swept the supreme judicial bench clean at a stroke."[ ] for a long time everybody had understood that the impeachment of chase was only the first step in the execution of the republican plan to replace with republicans marshall and the four federalist associate justices. "the judges of the supreme court are all federalists," wrote pickering six weeks before johnson's appointment. "they stand in the way of the ruling power.... the judges therefore, are, if possible, to be removed," by impeachment.[ ] nearly two years before, senator william plumer of new hampshire had accurately divined the republican plan: "the judges of the supreme court must fall," he informed jeremiah mason. "they are _denounced_ by the executive, as well as the house. they must be removed; they are obnoxious unyielding men; & why should they remain to awe & embarrass the administration? men of more flexible nerves can be found to succeed them. our affairs seem to approach an important crisis."[ ] the federalists rightly believed that jefferson was the directing mind in planning and effecting the subjugation of the national judiciary. that, said bayard, "has been an object on which mr. jefferson has long been resolved, at least ever since he has been in office."[ ] [illustration] john marshall especially must be overthrown.[ ] he had done all the things of which giles and the republicans complained. he had "dared to declare an act of congress unconstitutional," had "dared" to order madison to show cause why he should not be compelled to do his legal duty. everybody was at last awake to the fact that marshall had become the controlling spirit of the supreme court and of the whole national judiciary. every one knew, too, that he was the most determined nationalist in the entire country, and that jefferson and the republican party had no more unyielding enemy than the chief justice. and he had shown by his management of the supreme court and by his opinion in marbury _vs._ madison, how powerful that tribunal could be made. the downfall of samuel chase was a matter of small importance compared with the removal of john marshall. "they hate marshall, paterson, etc. worse than they hate chase because they are men of better character," asserted judge jeremiah smith of new hampshire. "to be safe in these times good men must not only resign their offices but they must resign their good names.... they will be obnoxious as long as they retain _either_. if they will neither die nor resign they give mr j the trouble of correcting the _procedure_.... tell me what the judges say--are they frightened?" he anxiously inquired of plumer.[ ] frightened they were--and very badly frightened. even john marshall, hitherto imperturbable and dauntless, was shaken.[ ] in addition to his "heretical" opinion in marbury _vs._ madison, marshall had given the republicans, and jefferson especially, another cause for complaint. a year after the decision of that case, he had again gone out of his way to announce from the supreme bench the fallacy of jefferson's constitutional views and the soundness of the nationalist theory. during the february term of the supreme court for the year , that tribunal, in the case of the united states _vs._ fisher,[ ] was called upon to decide whether the united states was a preferred creditor of an insolvent, under the bankruptcy act of , which marshall had helped to draw.[ ] among other objections, it was suggested by counsel for fisher, the insolvent, that the bankruptcy law was unconstitutional and that the priority which that act gave the nation over other creditors of the bankrupt would prevent the states from making similar laws for their own protection. but, said marshall, this is "the necessary consequence of the supremacy of the laws of the united states on all subjects to which the legislative power of the united states extends.... the constitution did not prohibit congress" from enacting a bankruptcy law and giving the nation preference as a creditor. on the contrary, congress was expressly authorized "to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the national government." to say that "no law was authorized which was not indispensably necessary ... would produce endless difficulties.... congress must possess the choice of means and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the constitution." this was an emphatic denial of jefferson's famous opinion on the power of congress to charter a bank, and an outright assertion of the views of hamilton on that celebrated question.[ ] the case could have been decided without such an expression from the court, but it presented an opportunity for a judicial statement of liberal construction which might not soon come again,[ ] and marshall availed himself of it. for two years no part of the republican plans against the judiciary had miscarried. close upon the very day when john breckenridge in the senate had moved to repeal the national judiciary act of , a petition signed by the enraged republicans of alleghany county, pennsylvania, had been sent to the legislature of that state, demanding the impeachment of alexander addison; and almost simultaneously with the passage of the judiciary repeal act of congress, the pennsylvania house of representatives transmitted to the state senate articles charging the able but arrogant federalist judge with high crimes and misdemeanors. addison's trial speedily followed; and while the evidence against him, viewed through the perspective of history, seems trivial, the republican pennsylvania senate pronounced judgment against him and deposed him from the bench. with notable ability, addison conducted his own defense. he made a powerful speech which is a classic of conservative philosophy.[ ] but his argument was unavailing. the republican theory, that a judge might be deposed from office for any conduct or opinion of which the legislature disapproved, was ruthlessly carried out.[ ] almost as soon as congress convened after the overthrow of the obnoxious pennsylvania federalist judge, the republicans in the national house, upon representations from jefferson, took steps to impeach john pickering, judge of the united states court for the district of new hampshire.[ ] this judge had been hopelessly insane for at least three years and, as one result of his mental and nervous malady, had become an incurable drunkard.[ ] in this condition he had refused to hear witnesses for the government in the case of the ship eliza, seized for violation of the revenue laws. he peremptorily ordered the vessel returned to its captain, and finally declined to allow an appeal from his decree. all this had been done with ravings, cursings, and crazed incoherences.[ ] that he was wholly incapacitated for office and unable to perform any act requiring intelligence was conceded by all. but the constitution provided no method of removing an officer who had become insane.[ ] this defect, however, gave the republicans an ideal opportunity to put into practice their theory that impeachment was unrestricted and might be applied to any officer whom, for any reason, two thirds of the senate deemed undesirable. "if the facts of his denying an appeal & of his intoxication, as stated in the impeachment, are proven, that will be sufficient cause for removal without further enquiry," asserted jefferson when assured that pickering was insane, and when asked "whether insanity was good cause for impeachment & removal from office."[ ] the demented judge did not, of course, appear at his trial. instead, a petition by his son was presented, alleging the madness of his father, and praying that evidence to that effect be received by the senate.[ ] this plea was stoutly resisted, and for two days the question was debated. "the most persevering and determined opposition is made against having evidence and counsel to prove the man insane," records john quincy adams, "only from the fear, that if insanity should be proved, he cannot be convicted of _high crimes and misdemeanors_ by acts of decisive madness."[ ] finally the determined republicans proceeded to the trial of the insane judge for high crimes and misdemeanors, evidence of his dethroned reason to be received "in mitigation."[ ] in immense disgust the house managers withdrew, because "the senate had determined _to hear evidence_" that the accused person was insane. before they returned, they publicly denounced the senators for their leniency; and thus republican discipline was restored.[ ] jefferson was impatient. "it will take two years to try this impeachment," he complained to senator plumer. "the constitution ought to be altered," he continued, "so that the president should be authorized to remove a judge from office, on the address of the two houses."[ ] but the exasperated republicans hastened the proceedings; and the trial did not consume two weeks all told. if an insane man should be condemned, "it will not hereafter be necessary," declared senator samuel smith of maryland, "that a man should be guilty of high crimes and misdemeanors," the commission of which was the only constitutional ground for impeachment. senator jonathan dayton of new jersey denounced the whole proceeding as "a mere mockery of a trial."[ ] senator john quincy adams, in the flurry of debate, asserted that he should "speak until [his] mouth was stopped by force."[ ] senator nicholas of virginia shouted "order! order! order!" when samuel white of delaware was speaking. so furious became the altercation that a duel seemed possible.[ ] no delay was permitted and, on march , , the demented pickering was, by a strictly partisan vote of to ,[ ] adjudged guilty of high crimes and misdemeanors. an incident happened which was prophetic of a decline in the marvelous party discipline that had kept the republicans in senate and house in solid support of the plans of the leaders. three republican senators left the chamber in order to avoid the balloting.[ ] they would not adjudge an insane man to be guilty of high crimes and misdemeanors, but they were not yet independent enough to vote against their party.[ ] this, however, did not alarm the republican managers. they instantly struck the next blow upon which they had determined more than two years before. within an hour after john pickering was convicted the house voted to impeach samuel chase. marshall's irascible associate on the supreme bench had given the republicans a new and serious cause for hostilities against him. in less than two months after marshall had delivered the unanimous opinion of the supreme court in marbury _vs._ madison, justice chase, in charging the grand jury at baltimore, denounced republican principles and mercilessly assailed republican acts and purposes. this judicial critic of democracy told the grand jury that "the bulk of mankind are governed by their passions, and not by reason.... the late alteration of the federal judiciary ... and the recent change in our state constitution, by the establishing of universal suffrage, ... will ... take away all security for property and personal liberty ... and our republican constitution will sink into a mobocracy, the worst of all popular governments." chase condemned "the modern doctrines by our late reformers, that all men, in a state of society, are entitled to enjoy equal liberty and equal rights, [which] have brought this mighty mischief upon us";--a mischief which he feared "will rapidly progress, until peace and order, freedom and property, shall be destroyed.... will justice be impartially administered by judges dependent on the legislature for their ... suport? will liberty or property be protected or secured, by laws made by representatives chosen by electors, who have no property in, or a common interest with, or attachment to, the community?"[ ] burning with anger, a young republican member of the maryland legislature, john montgomery, who had listened to this judicial tirade, forthwith savagely denounced chase in the _baltimore american_.[ ] he demanded that the justice be impeached and removed from the bench.[ ] montgomery hastened to send to the president[ ] a copy of the paper. jefferson promptly wrote nicholson: "ought this seditious and official attack on the principles of our constitution, and on the proceedings of a state, go unpunished? and, to whom so pointedly as yourself will the public look for the necessary measures?" but jefferson was not willing to appear openly. with that uncanny power of divining political currents to which coarser or simpler minds were oblivious, he was conscious of the uneasiness of northern republicans over ruthless impeachment and decided not to become personally responsible. "for myself," he cautioned nicholson, "it is better that i should not interfere."[ ] upon the advice of nathaniel macon,[ ] republican speaker of the house, nicholson concluded that it would be more prudent for another to take the lead. it was well understood that he was to have chase's place on the supreme bench,[ ] and this fact would put him at a disadvantage if he became the central figure in the fight against the aged justice. the procurement of the impeachment was, therefore, placed in the eager hands of john randolph, that "unusual phenomenon," as john adams called him,[ ] whose lust for conspicuous leadership was insatiable. the republican managers had carefully moulded public opinion into the belief that chase was guilty of some monstrous crime. months before articles of impeachment were presented to the house, _ex parte_ statements against him were collected, published in pamphlet form, and scattered throughout the country. to assure wider publicity all this "evidence" was printed in the republican organ at washington. the accused justice had, therefore, been tried and convicted by the people before the charges against him were even offered in the house.[ ] this preparation of the popular mind accomplished, chase was finally impeached. eight articles setting forth the republican accusations were laid before the senate. chase was accused of everything of which anybody had complained since his appointment to the supreme bench. his conduct at the trials of fries and callender was set forth with tedious particularity: in delaware he had stooped "to the level of an informer"; his charge to the grand jury at baltimore was an "intemperate and inflamatory political harangue"; he had prostituted his "high judicial character ... to the low purpose of an electioneering partizan"; his purpose was "to excite ... odium ... against the government."[ ] this curious scramble of fault-finding, which was to turn out so fatally for the prosecution, was the work of randolph. when the conglomerate indictment was drawn, no one, except perhaps jefferson, had the faintest idea that the republican plan would miscarry; randolph's multifarious charges pleased those in virginia, pennsylvania, delaware, and maryland who had first made them; they were so drawn as to lay a foundation for the assault which was to follow immediately. "these articles," wrote john quincy adams, "contained in themselves a virtual impeachment not only of mr. chase, but of all the judges of the supreme court from the first establishment of the national judiciary."[ ] in an extended and carefully prepared speech, senator giles, who had drawn the rules governing the conduct of the trial in the senate, announced the republican view of impeachment which, he said, "is nothing more than an enquiry, by the two houses of congress, whether the office of any public man might not be better filled by another." adams was convinced that "this is undoubtedly the source and object of mr. chase's impeachment, and on the same principle any officer may easily be removed at any time."[ ] from the time the house took action against chase, the federalists were in despair. "i think the judge will be removed from office," was senator plumer's opinion.[ ] "the event of the impeachment is already determined," wrote bayard before the trial began.[ ] pickering was certain that chase would be condemned--so would any man that the house might impeach; such "measures ... are made questions of _party_, and therefore at all events to be carried into effect according to the wishes of the prime mover [jefferson]."[ ] as the day of the arraignment of the impeached justice approached, his friends were not comforted by their estimate of the public temper. "our public ... will be as tame as mr. randolph can desire," lamented ames. "you may broil judge chase and eat him, or eat him raw; it shall stir up less anger or pity, than the six nations would show, if cornplanter or red jacket were refused a belt of wampum."[ ] when finally chase appeared before the bar of the senate, he begged that the trial should be postponed until next session, in order that he might have time to prepare his defense. his appeal fell on remorseless ears; the republicans gave him only a month. but this scant four weeks proved fatal to their purpose. jefferson's wise adjustment of the greatest financial scandal in american history[ ] came before the house during this interval; and fearless, honest, but impolitic john randolph attacked the administration's compromise of the yazoo fraud with a ferocity all but insane in its violence. literally screaming with rage, he assailed jefferson's postmaster-general who was lobbying on the floor of the house for the passage of the president's yazoo plan, and delivered continuous philippics against that polluted transaction out of which later came the third of john marshall's most notable opinions.[ ] in this frame of mind, nervously exhausted, physically overwrought and troubled, the most brilliant and effective congressional partisan leader of our early history came to the trial. moreover, randolph had broken with the administration and challenged jefferson's hitherto undisputed partisan autocracy. this was the first public manifestation of that schism in the republican party which was never entirely healed. such was the situation on the th of february, , when the senate convened to hear and determine the case of samuel chase, impeached by the house for high crimes and misdemeanors, to settle by the judgment it should render the fate of john marshall as chief justice of the united states, and to fix forever the place of the national judiciary in the scheme of american government. "oyez! oyez! oyez!--all persons are commanded to keep silence on pain of imprisonment, while the grand inquest of the nation is exhibiting to the senate of the united states, sitting as a court of impeachments, articles of impeachment against samuel chase, associate justice of the supreme court of the united states."[ ] so cried the sergeant-at-arms of the national senate when, in the chase trial, john marshall, the supreme court, and the whole national judiciary were called to judgment by thomas jefferson, on the bleak winter day in dismal, scattered, and quarreling washington. an audience crowded the senate chamber almost to the point of suffocation. there were present not only the members of senate and house, the officers of the executive departments, and the men and women of the capital's limited society, but also scores of eminent persons from distant parts of the country.[ ] among the spectators were john marshall and the associate justices of the supreme court, thoroughly conscious that they, and the institution of which they were the highest representatives, were on trial almost as much as their imprudent, rough, and outspoken fellow member of the bench. it is not improbable that they were helping to direct the defense of chase,[ ] in which, as officials, they were personally interested, and in which, too, all their convictions as citizens and jurists were involved. [illustration: letter to samuel chase (_facsimile_)] marshall, aroused, angered, and frightened by the articles of the impeachment, had written his brother a year before the chase trial that they are "sufficient to alarm the friends of a pure, and, of course, an independent judiciary, if, among those who rule our land there be any of that description."[ ] at the beginning of the proceedings chase had asked marshall, who was then in richmond, to write an account of what occurred at the trial of callender, and marshall promptly responded: "i instantly applied to my brother[ ] & to mr. wickham[ ] to state their recollection of the circumstances under which colo. taylors testimony was rejected.[ ] they both declared that they remembred them very imperfectly but that they woud endeavor to recollect what passed & commit it to writing. i shall bring it with me to washington in february." marshall also promised to bring other documents. "admitting it to be true," continues marshall, "that on legal principles colo. taylors testimony was admissible, it certainly constitutes a very extraordinary ground for an impeachment. according to the antient doctrine a jury finding a verdict against the law of the case was liable to an attaint; & the amount of the present doctrine seems to be that a judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment. "as, for convenience & humanity the old doctrine of attaint has yielded to the silent, moderate but not less operative influence of new trials, i think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. a reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the judge who has rendered them unknowing of his fault. "the other charges except the st & th which i suppose to be altogether unfounded, seem still less to furnish cause for impeachment. but the little finger of [blotted out--probably "democracy"] is heavier than the loins of ----.[ ] "farewell--with much respect and esteem.... "j. marshall."[ ] marshall thus suggested the most radical method for correcting judicial decisions ever advanced, before or since, by any man of the first class. appeals from the supreme court to congress! senators and representatives to be the final judges of any judicial decision with which a majority of the house was dissatisfied! had we not the evidence of marshall's signature to a letter written in his well-known hand, it could not be credited that he ever entertained such sentiments. they were in direct contradiction to his reasoning in marbury _vs._ madison, utterly destructive of the federalist philosophy of judicial control of legislation. the explanation is that marshall was seriously alarmed. by his own pen he reveals to us his state of mind before and on that dismal february day when he beheld samuel chase arraigned at the bar of the senate of the united states. during the trial marshall's bearing as a witness[ ] again exhibited his trepidation. and, as we have seen, he had good cause for sharp anxiety.[ ] the avowed republican purpose to remove him and his federalist associates from the supreme bench, the settled and well-known intention of jefferson to appoint spencer roane as chief justice when marshall was ousted, and the certainty that this would be fatal to the execution of those fundamental principles of government to which marshall was so passionately devoted--these important considerations fully warranted the apprehension which the chief justice felt and now displayed. had he been indifferent to the peril that confronted him and the whole national judiciary, he would have exhibited a woeful lack of sense and feeling. he was more than justified in resorting to any honorable expedient to save the great office he held from occupancy by a resolute and resourceful foe of those constitutional theories, the application of which, marshall firmly believed, was indispensable to the sound development of the american nation. the arrangements for the trial were as dramatic as the event itself was momentous.[ ] the scenes of the impeachment prosecution of warren hastings were still vivid in the minds of all, and in imitation of that spectacle, the senate chamber was now bedecked with impressive splendor. it was aglow with theatrical color, and the placing of the various seats was as if a tragic play were to be performed. to the right and left of the president's chair were two rows of benches with desks, the whole covered with crimson cloth. here sat the thirty-four senators of the united states. three rows of benches, arranged in tiers, extended from the wall toward the center of the room; these were covered with green cloth and were occupied by the members of the house of representatives. upon their right an enclosure had been constructed, and in it were the members of jefferson's cabinet. beneath the permanent gallery to which the general public was admitted, a temporary gallery, supported by pillars, ran along the wall, and faced the crimson-covered places of the senators. at either end of it were boxes. comfortable seats had been provided in this enclosure; and these were covered with green cloth, which also was draped over the balustrade. this sub-gallery and the boxes were filled with ladies dressed in the height of fashion. a passageway was left from the president's chair to the doorway. on either side of this aisle were two stalls covered with blue cloth, as were also the chairs within them. they were occupied by the managers of the house of representatives and by the lawyers who conducted the defense.[ ] a short, slender, elegantly formed man, with pallid face and steady black eyes, presided over this senatorial court. he was carefully dressed, and his manners and deportment were meticulously correct. aaron burr, fresh from his duel with hamilton, and under indictment in two states, had resumed his duties as vice-president. nothing in the bearing of this playwright character indicated in the smallest degree that anything out of the ordinary had happened to him. the circumstance of his presence, however, dismayed even the most liberal of the new england federalists. "we are indeed fallen on evil times," wrote senator plumer. "the high office of president is filled by an _infidel_, that of vice-president by a _murderer_."[ ] for the first time since the republican victory of , which, but for his skill, courage, and energy in new york, would not have been achieved,[ ] burr now found himself in favor with the administration and the republican chieftains.[ ] jefferson determined that aaron burr must be captured--at least conciliated. he could not be displaced as the presiding officer at the chase impeachment trial; his rulings would be influential, perhaps decisive; the personal friendship and admiration of several senators for him were well known; the emergency of the republican party was acute. chase must be convicted at all hazards; and while nobody but jefferson then doubted that this would be the result, no chances were to be taken, no precaution overlooked. the president had rewarded the three principal witnesses against pickering with important and lucrative offices[ ] after the insane judge had been removed from the bench. indeed he had given the vacated judgeship to one of these witnesses. but such an example jefferson well knew would have no effect upon burr; even promises would avail nothing with the man who for nearly three years had suffered indignity and opposition from an administration which he, more than any one man except jefferson himself, had placed in power. so it came about that vice-president aaron burr, with only four weeks of official life left him, with the whole north clamorous against him because of his killing of hamilton and an indictment of murder hanging over him in new jersey, now found himself showered with favors by those who owed him so much and who, for nearly four years, had so grossly insulted him. burr's stepson, his brother-in-law, his most intimate friend, were forthwith appointed to the three most valuable and commanding offices in the new government of the louisiana territory, at the attractive city of new orleans.[ ] the members of the cabinet became attentive to burr. the president himself exercised his personal charm upon the fallen politician. time after time burr was now invited to dine with jefferson at the executive mansion. nor were presidential dinners, the bestowal of patronage hitherto offensively refused, and attentions of the cabinet, the limit of the efforts to win the coöperation of the man who was to preside over the trial of samuel chase. senator giles drew a petition to the governor of new jersey begging that the prosecution of burr for murder be dropped, and to this paper he secured the signature of nearly all the republican senators.[ ] burr accepted these advances with grave and reserved dignity; but he understood the purpose that inspired them, did not commit himself, and remained uninfluenced and impartial. throughout the momentous trial the vice-president was a model presiding officer. "he conducted with the dignity and impartiality of an angel, but with the rigor of a devil," records a washington newspaper that was bitterly hostile to burr personally and politically.[ ] when chase took his place in the box, the sergeant-at-arms brought him a chair; but burr, adhering to the english custom, which required prisoners to stand when on trial in court, ordered it to be taken away.[ ] upon the request of the elderly justice, however, burr quickly relented and the desired seat was provided.[ ] chase was, in appearance, the opposite of the diminutive and graceful vice-president. more than six feet tall, with thick, broad, burly shoulders, he was a picture of rugged and powerful physical manhood, marred by an accumulation of fat which his generous manner of living had produced. also he was afflicted with an agonizing gout, with which it seems so many of "the fathers" were cursed. his face was broad and massive, his complexion a brownish red.[ ] "bacon face" was a nickname applied to him by the maryland bar.[ ] his head was large, his brow wide, and his hair was thick and white with the snows of his sixty-four winters.[ ] the counsel that surrounded the impeached justice were brilliant and learned.[ ] they were joseph hopkinson, who six years before, upon marshall's return from france, had written "hail columbia; or, the president's march"; philip barton key, brother of the author of "the star-spangled banner";[ ] robert goodloe harper, one of the federalist leaders in congress during the ascendancy of that party; and charles lee, attorney-general under president adams when marshall was secretary of state, and one of marshall's most devoted friends.[ ] but in the chair next to chase sat a man who, single-handed and alone, was more than a match for all the managers of the house put together. luther martin of maryland--of medium height, broad-shouldered, near-sighted, absent-minded, shabbily attired, harsh of voice, now sixty-one years old, with gray hair beginning to grow thin and a face crimsoned by the brandy which he continually imbibed--was the dominating figure of this historic contest.[ ] weary and harried as he was, randolph opened the trial with a speech of some skill. he contrasted the conduct of chase in the trial of callender with that of marshall in a trial in richmond in at which marshall had presided. "sir," said randolph, "in the famous case of logwood,[ ] whereat the chief justice of the united states presided, i was present, being one of the grand jury who found a true bill against him.... the government was as deeply interested in arresting the career of this dangerous and atrocious criminal, who had aimed his blow against the property of every man in society, as it could be in bringing to punishment a weak and worthless scribbler [callender]." but how had marshall acted in the conduct of that trial? "although," continued randolph, "much testimony was offered by the prisoner, which did by no means go to his entire exculpation, although much of that testimony was of a very questionable nature, none of it was declared _inadmissable_." marshall suffered it "to go to the jury, who were left to judge of its weight and credibility"; nor had he required "any interrogatories to the witnesses ... to be reduced to writing,"--such a thing never had been done in virginia before the tyrannical ruling of chase in the trial of callender. "no, sir!" he cried. "the enlightened man who presided in logwood's case knew that, although the basest and vilest of criminals, he was entitled to _justice_, equally with the most honorable member of society." marshall "did not avail himself of the previous and great discoveries in criminal law, of this respondent [chase]"; marshall "admitted the prisoner's testimony to go to the jury"; marshall "never thought it _his right_ or _his duty_ to require questions to be reduced to writing"; marshall "gave the accused _a fair trial_ according to law and usage, without any innovation or departure from the established rules of criminal jurisprudence in his country." marshall's gentle manner and large-minded, soft-spoken rulings as a trial judge were thus adroitly made to serve as an argument for the condemnation of his associate, and for his own undoing if chase should be convicted. randolph denounced "the monstrous pretension that an act to be impeachable must be indictable. where? in the federal courts? there, not even robbery and murder are indictable." [illustration: john randolph] a judge could not, under the national law, be indicted for conducting a national court while drunk, and perhaps not in all state courts. "it is indictable nowhere for him to omit to do his duty, to refuse to hold a court. but who can doubt that both are impeachable offenses, and ought to subject the offender to removal from office?" the autocrat of congress then boldly announced to the republican senators that the house managers "confidently expect on his [chase's] conviction.... we shall bring forward ... such a specimen of judicial tyranny, as, i trust in god, will never be again exhibited in our country."[ ] fifty-two witnesses were examined. it was established that, in the trial of fries, chase had written the opinion of the court upon the law before the jury was sworn, solely in order to save time; had withdrawn the paper and destroyed it when he found fries's counsel resented the court's precipitate action; and, finally, had repeatedly urged them to proceed with the defense without restriction. chase's inquisitorial conduct in delaware was proved, and several witnesses testified to the matter and manner of his charge to the baltimore grand jury.[ ] every incident in the trial of callender[ ] was described by numerous witnesses.[ ] george hay, who had been the most aggressive of callender's counsel, was so anxious to help the managers that he made a bad impression on the senate by his eagerness.[ ] it developed that the whole attitude of chase had been one of sarcastic contempt; and that callender's counsel were more piqued by the laughter of the spectators which the witty sallies and humorous manner of the justice excited, than they were outraged by any violence on chase's part, or even by what they considered the illegal and oppressive nature of his rulings. when, in defending callender, hay had insisted upon "a literal recital of the parts [of _the prospect before us_] charged as libellous," chase, looking around the court-room, said with an ironical smile: "it is contended ... that the book ought to be copied _verbatim et literatim_, i wonder, ... that _they_ do not contend for _punctuatim_ too."[ ] the audience laughed. chase's interruption of wirt[ ] by calling the young lawyer's "syllogistical" conclusion a "_non sequitur_, sir," was accompanied by an inimitable "bow" that greatly amused the listeners. in short, the interruptions of the sardonic old justice were, as john taylor of caroline testified, in "a very high degree imperative, satirical, and witty ... [and] extremely well calculated to abash and disconcert counsel."[ ] among the witnesses was marshall's brother william, whom president adams had appointed clerk of the united states court at richmond.[ ] his testimony was important on one point. one john heath, a richmond attorney and a perfect stranger to chase, had sworn that chase, in his presence, had asked the united states marshal, david m. randolph, "if he had any of those creatures or people called democrats on the panel of the jury to try callender"; that when the marshal replied that he had "made no discrimination," the judge told him "to look over the panel and if there were any of that description, strike them off." william marshall, on the contrary, made oath that chase told him that he hoped even giles would serve on the jury--"nay, he wished that callender might be tried by a jury of his own politics." david m. randolph then testified that he had never seen heath in the judge's chambers, that chase "never at any time or place" said anything to him about striking any names from the jury panel, and that he never received "any instructions, verbal, or by letter, from judge chase in relation to the grand jury."[ ] john marshall himself was then called to the stand and sworn. friendly eye-witnesses record that the chief justice appeared to be frightened. he testified that colonel harvie, with whom he "was intimately acquainted,"[ ] had asked him to get the marshal to excuse harvie from serving on the jury because "his mind was completely made up ... and whatever the evidence might be, he should find the traverser not guilty." when marshall told this to the court official, the latter said that harvie must apply to the judge, because he "was watched," and "to prevent any charge of improper conduct" he would not discharge any of the jury whom he had summoned. marshall then induced chase to release harvie "upon the ground of his being sheriff of henrico county and that his attendance was necessary" at the county court then in session. marshall said that he was in court during a part of the callender trial and that "there were several circumstances that took place ... on the part both of the bar and the bench which do not always occur at trials.... the counsel appeared ... to wish to argue to the jury that the sedition law was unconstitutional. mr. chase said that that was not a proper question to go to the jury"; and that whenever callender's attorneys began to argue to the contrary the court stopped them. the chief justice further testified that george hay had addressed the court to the effect that in this ruling chase was "not correct in point of law," and again the judge "stopped him"; that "mr. hay still went on and made some political observations; judge chase stopped him again and the collision ended by mr. hay sitting down and folding up his papers as if he meant to retire." marshall did not recollect "precisely," although it appeared to him that "whenever judge chase thought the counsel incorrect in their points, he immediately told them so and stopped them short." this "began early in the proceedings and increased. on the part of the judge it seemed to be a disgust with regard to the mode adopted by the traverser's counsel, at least ... as to the part which mr. hay took in the trial." randolph asked marshall whether it was the practice for courts to hear counsel argue against the correctness of rulings; and marshall replied that "if counsel have not been already heard, it is usual to hear them in order that they may change or confirm the opinion of the court, when there is any doubt entertained." but there was "no positive rule on the subject and the course pursued by the court will depend upon circumstances: where the judge believes that the point is perfectly clear and settled he will scarcely permit the question to be agitated. however, it is considered as decorous on the part of the judge to listen while the counsel abstain from urging unimportant arguments." marshall was questioned closely as to points of practice. his answers were not favorable to his associate justice. did it appear to him that "the conduct of judge chase was mild and conciliatory" during the trial of callender? marshall replied that he ought to be asked what chase's conduct was and not what he thought of it. senator william cocke of tennessee said the question was improper, and randolph offered to withdraw it. "no!" exclaimed chase's counsel, "we are willing to abide in this trial by the opinion of the chief justice." marshall declared that, except in the callender trial, he never heard a court refuse to admit the testimony of a witness because it went only to a part and not to the whole of a charge. burr asked marshall: "do you recollect whether the conduct of the judge at this trial was tyrannical, overbearing and oppressive?" "i will state the facts," cautiously answered the chief justice. "callender's counsel persisted in arguing the question of the constitutionality of the sedition law, in which they were constantly repressed by judge chase. judge chase checked mr. hay whenever he came to that point, and after having resisted repeated checks, mr. hay appeared to be determined to abandon the cause, when he was desired by the judge to proceed with his argument and informed that he should not be interrupted thereafter. "if," continued marshall, "this is not considered tyrannical, oppressive and overbearing, i know nothing else that was so." it was usual for courts to hear counsel upon the validity of rulings "not solemnly pronounced," and "by no means usual in virginia to try a man for an offense at the same term at which he is presented"; although, said marshall, "my practice, while i was at the bar was very limited in criminal cases." "did you ever hear judge chase apply any unusual epithets--such as '_young men_' or '_young gentlemen_'--to counsel?" inquired randolph. "i have heard it so frequently spoken of since the trial that i cannot possibly tell whether my recollection of the term is derived from expressions used in court, or from the frequent mention since made of them." but, remarked marshall, having thus adroitly placed the burden on the irresponsible shoulders of gossip, "i am rather inclined to think that i did hear them from the judge." randolph then drew from marshall the startling and important fact that william wirt was "about thirty years of age and a widower."[ ] senator plumer, with evident reluctance, sets down in his diary a description from which it would appear that marshall's manner affected the senate most unfavorably. "john marshall is the chief justice of the supreme court of the united states. i was much better pleased with the manner in which his brother testified than with him. "the chief justice really discovered too much caution--too much fear--too much cunning--he ought to have been more bold--frank & explicit than he was. "there was in his manner an evident disposition to accommodate the managers. that dignified frankness which his high office required did not appear. a cunning man ought never to discover the arts of the _trimmer_ in his testimony."[ ] plainly marshall was still fearful of the outcome of the republican impeachment plans, not only as to chase, but as to the entire federalist membership of the supreme court. his understanding of the republican purpose, his letter to chase, and his manner on the stand at the trial leave no doubt as to his state of mind. a republican supreme court, with spencer roane as chief justice, loomed forbiddingly before him. chase was suffering such agony from the gout that, when the testimony was all in, he asked to be released from further attendance.[ ] six days before the evidence was closed, the election returns were read and counted, and aaron burr "declared thomas jefferson and george clinton to be duly elected to the respective offices of president and vice-president of the united states."[ ] for the first time in our history this was done publicly; on former occasions the galleries were cleared and the doors closed.[ ] throughout the trial randolph and giles were in frequent conference--judge and prosecutor working together for the success of the party plan.[ ] on february the arguments began. peter early of georgia spoke first. his remarks were "chiefly declamatory."[ ] he said that the conduct of chase exhibited that species of oppression which puts accused citizens "at the mercy of _arbitrary and overbearing judges_." for an hour and a half he reviewed the charges,[ ] but he spoke so badly that "most of the members of the other house left the chamber & a large portion of the spectators the gallery."[ ] george washington campbell of tennessee argued "long and tedious[ly]"[ ] for the jeffersonian idea of impeachment which he held to be "a kind of an inquest into the conduct of an officer ... and the effects that his conduct ... may have on society." he analyzed the official deeds of chase by which "the whole community seemed shocked.... future generations are interested in the event."[ ] he spoke for parts of two days, having to suspend midway in the argument because of exhaustion.[ ] like early, campbell emptied the galleries and drove the members of the house, in disgust, from the floor.[ ] joseph hopkinson then opened for the defense. although but thirty-four years old, his argument was not surpassed,[ ] even by that of martin--in fact, it was far more orderly and logical than that of maryland's great attorney-general. "we appear," began hopkinson, "for an ancient and infirm man, whose better days have been worn out in the service of that country which now degrades him." the case was "of infinite importance," truly declared the youthful attorney. "the faithful, the scrutinizing historian, ... without fear or favor" will render the final judgment. the house managers were following the british precedent in the impeachment of warren hastings; but that celebrated prosecution had not been instituted, as had that of chase, on "a petty catalogue of frivolous occurrences, more calculated to excite ridicule than apprehension, but for the alleged murder of princes and plunder of empires"; yet hastings had been acquitted. in england only two judges had been impeached in half a century, while in the united states "seven judges have been prosecuted criminally in about two years." could a national judge be impeached merely for "error, mistake, or indiscretion"? absurd! such action could be taken only for "an indictable offense." thus hopkinson stated the master question of the case. in a clear, closely woven argument, the youthful advocate maintained his ground. the power of impeachment by the house was not left entirely to the "opinion, whim, or caprice" of its members, but was limited by other provisions of the fundamental law. chase was not charged with treason, bribery, or corruption. had any other "high crimes and misdemeanors" been proved or even stated against him? he could not be impeached for ordinary offenses, but only for "high crimes and high misdemeanors." those were legal and technical terms, "well understood and defined in law.... a misdemeanor or a crime ... is an act committed or omitted, in violation of a _public_ law either forbidding or commanding it. by this test, let the respondent ... stand justified or condemned." the very nature of the senatorial court indicated "the grade of offenses intended for its jurisdiction.... was such a court created ... to scan and punish paltry errors and indiscretions, too insignificant to have a name in the penal code, too paltry for the notice of a court of quarter sessions? this is indeed employing an elephant to remove an atom too minute for the grasp of an insect." had chase transgressed any state or national statute? had he violated the common law? nobody claimed that he had. could any judge be firm, unbiased, and independent if he might at any time be impeached "on the mere suggestions of caprice ... condemned by the mere voice of prejudice"? no! "if his nerves are of iron, they must tremble in so perilous a situation." hopkinson dwelt upon the true function of the judiciary under free institutions. "all governments require, in order to give them firmness, stability, and character, some permanent principle, some settled establishment. the want of this is the great deficiency in republican institutions." in the american government an independent, permanent judiciary supplied this vital need. without it "nothing can be relied on; no faith can be given either at home or abroad." it was also "a security from oppression." all history proved that republics could be as tyrannical as despotisms; not systematically, it was true, but as the result of "sudden gust of passion or prejudice.... if we have read of the death of a seneca under the ferocity of a nero, we have read too of the murder of a socrates under the delusion of a republic. an independent and firm judiciary, protected and protecting by the laws, would have snatched the one from the fury of a despot, and preserved the other from the madness of a people."[ ] so spoke joseph hopkinson for three hours,[ ] made brief and brilliant by his eloquence, logic, and learning. philip barton key of washington, younger even than hopkinson, next addressed the senatorial court. he had been ill the day before[ ] and was still indisposed, but made an able speech. he analyzed, with painstaking minuteness, the complaints against his client, and cleverly turned to chase's advantage the conduct of marshall in the logwood case.[ ] charles lee then spoke for the defense; but what he said was so technical, applying merely to virginia legal practice of the time, that it is of no historical moment.[ ] when, on the next day, february , luther martin rose, the senate chamber could not contain even a small part of the throng that sought the capitol to hear the celebrated lawyer. if he "_only_ appeared in defense of a friend," said martin, he would not be so gravely concerned; but the case was plainly of highest possible importance, not only to all americans then living, but to "posterity." it would "establish a most important precedent as to future cases of impeachment." an error now would be fatal. for what did the constitution authorize the house to impeach and the senate to try an officer of the national government? asked martin. only for "an indictable offense." treason and bribery, specifically named in the constitution as impeachable offenses, were also indictable. it was the same with "other high crimes and misdemeanors," the only additional acts for which impeachment was provided. to be sure, a judge might do deeds for which he could be indicted that would not justify his impeachment, as, for instance, physical assault "provoked by insolence." but let the house managers name one act for which a judge could be impeached that did not also subject him to indictment. congress could pass a law making an act criminal which had not been so before; but such a law applied only to deeds committed after, and not to those done before, its passage. yet if an officer might, years after the event, be impeached, convicted, and punished for conduct perfectly legal at the time, "could the officers of government ever know how to proceed?" establish such a principle and "you leave your judges, and all your other officers, at the mercy of the prevailing party." had chase "used _unusual_, rude and _contemptuous_ expressions towards the prisoner's counsel" in the callender case, as the articles of impeachment charged? even so, this was "rather a violation of the principles of politeness, than the principles of law; rather the want of decorum, than the commission of a _high crime and misdemeanor_." was a judge to be impeached and removed from office because his deportment was not elegant? the truth was that callender's counsel had not acted in his interest and had cared nothing about him; they had wished only "to hold up the prosecution as oppressive" in order to "excite public indignation against the court and the government." had not hay just testified that he entertained "no hopes of convincing the court, and scarcely the faintest expectation of inducing the jury to believe that the sedition law was unconstitutional"; but that he had wished to make an "impression upon the public mind.... what barefaced, what unequalled hypocrisy doth he admit that he practiced on that occasion! what egregious trifling with the court!" exclaimed martin. when chase had observed that wirt's syllogism was a "_non sequitur_," the judge, it seems, had "bowed." monstrous! but "as _bows_, sir, according to the manner they are _made_, may ... convey very different meanings," why had not the witness who told of it, "given us a _fac simile_ of it?" the senate then could have judged of "the propriety" of the bow. "but it seems this _bow_, together with the '_non sequitur_' entirely discomfitted poor mr. wirt, and down he sat 'and never word spake more!'" by all means let chase be convicted and removed from the bench--it would never do to permit national judges to make bows in any such manner! but alas for chase! he had committed another grave offense--he had called william wirt "_young_ gentleman" in spite of the fact that wirt was actually thirty years old and a widower. perhaps chase did not know "of these circumstances"; still, "if he had, considering that mr. wirt was a widower, he certainly erred on the right side ... in calling _him_ a _young_ gentleman."[ ] when the laughter of the senate had subsided, martin, dropping his sarcasm, once more emphasized the vital necessity of the independence of the judiciary. "we boast" that ours is a "government of laws. but how can it be such, unless the laws, while they exist, are sacredly and impartially, without regard to popularity, carried into execution?" only independent judges can do this. "our property, our liberty, our lives, can only be protected and secured by such judges. with this honorable court it remains, whether we shall have such judges!"[ ] martin spoke until five o'clock without food or any sustenance, "except two glasses of wine and water"; he said he had not even breakfasted that morning, and asked permission to finish his argument next day. when he resumed, he dwelt on the liberty of the press which chase's application of the sedition law to callender's libel was said to have violated. "my honorable client with many other respectable characters ... considered it [that law] as a wholesome and necessary restraint" upon the licentiousness of the press.[ ] martin then quoted with telling effect from franklin's denunciation of newspapers.[ ] "franklin, himself a printer," had been "as great an advocate for the liberty of the press, as any reasonable man ought to be"; yet he had "declared that unless the slander and calumny of the press is restrained by some other law, it will be restrained by club law." was not that true? if men cannot be protected by the courts against "base calumniators, they will become their own avengers. and to the bludgeon, the sword or the pistol, they will resort for that purpose." yet chase stood impeached for having, as a judge, enforced the law against the author of "one of the most flagitious libels ever published in america."[ ] throughout his address martin mingled humor with logic, eloquence with learning.[ ] granted, he said, that chase had used the word "damned" in his desultory conversation with triplett during their journey in a stage. "however it may sound elsewhere in the united states, i cannot apprehend it will be considered _very_ offensive, _even_ from the mouth of a judge on this side of the susquehanna;--to the southward of that river it is in familiar use ... supplying frequently the place of the word 'very' ... connected with subjects the most pleasing; thus we say indiscriminately a very good or a damned good bottle of wine, a damned good dinner, or a damned clever fellow."[ ] martin's great speech deeply impressed the senate with the ideas that chase was a wronged man, that the integrity of the whole national judicial establishment was in peril, and that impeachment was being used as a partisan method of placing the national bench under the rod of a political party. and all this was true. robert goodloe harper closed for the defense. he was intolerably verbose, but made a good argument, well supported by precedents. in citing the example which randolph had given as a good cause for impeachment--the refusal of a judge to hold court--harper came near, however, making a fatal admission. this, said harper, would justify impeachment, although perhaps not an indictment. most of his speech was a repetition of points already made by hopkinson, key, and martin. but harper's remarks on chase's charge to the baltimore grand jury were new, that article having been left to him. "is it not lawful," he asked, "for an aged patriot of the revolution to warn his fellow-citizens of dangers, by which he supposes their liberties and happiness to be threatened?" that was all that chase's speech from the bench in baltimore amounted to. did his office take from a judge "the liberty of speech which belongs to every citizen"? judges often made political speeches on the stump--"what law forbids [them] to exercise these rights by a charge from the bench?" that practice had "been sanctioned by the custom of this country from the beginning of the revolution to this day." harper cited many instances of the delivery by judges of political charges to grand juries, beginning with the famous appeal to the people to fight for independence from british rule, made in a charge to a south carolina grand jury in .[ ] the blows of chase's strong counsel, falling in unbroken succession, had shaken the nerve of the house managers. one of these, joseph h. nicholson of maryland, now replied. posterity would indeed be the final judge of samuel chase. warren hastings had been acquitted; "but is there any who hears me, that believes he was innocent?" the judgment of the senate involved infinitely more than the fortunes of chase; by it "must ultimately be determined whether justice shall hereafter be impartially administered or whether the rights of the citizen are to be prostrated at the feet of overbearing and tyrannical judges." nicholson denied that the house managers had "resorted to the forlorn hope of contending that an impeachment was not a criminal prosecution, but a mere inquest of office.... if declarations of this kind have been made, in the name of the managers, i here disclaim them. we do contend that this is a criminal prosecution, for offenses committed in the discharge of high official duties."[ ] the senate was dumbfounded, the friends of chase startled with joyful surprise; a gasp of amazement ran through the overcrowded chamber! nicholson had abandoned the republican position--and at a moment when harper had all but admitted it to be sound. what could this mean but that the mighty onslaughts of martin and hopkinson had disconcerted the managers, or that republican senators were showing to the leaders signs of weakening in support of the party doctrine. at any rate, nicholson's admission was an irretrievable blunder. he should have stoutly championed his party's theory upon which chase had been impeached and thus far tried, ignored the subject entirely, or remained silent. sadly confused, he finally reversed his argument and swung back to the original republican theory. he cited many hypothetical cases where an officer could not be haled before a criminal court, but could be impeached. one of these must have furnished cause for secret mirth to many a senator: "it is possible," said nicholson, "that the day may arrive when a president of the united states ... may endeavor to influence [congress] by holding out threats or inducements to them.... the hope of an office may be held out to a senator; and i think it cannot be doubted, that for this the president would be liable to impeachment, although there is no positive law forbidding it." lucky for nicholson that martin had spoken before him and could not reply; fortunate for jefferson that the "impudent federal bulldog,"[ ] as the president afterward styled martin, could not now be heard. for his words would have burned the paper on which the reporters transcribed them. every senator knew how patronage and all forms of executive inducement and coercion had been used by the administration in the passage of most important measures--the judiciary repeal, the pickering impeachment, the yazoo compromise, the trial of chase. from the floor of the house john randolph had just denounced, with blazing wrath, jefferson's postmaster-general for offering government contracts to secure votes for the yazoo compromise.[ ] for two hours and a half nicholson continued,[ ] devoting himself mainly to the conduct of chase during the trial of fries. he closed by pointing out the inducements to a national judge to act as a tyrannical tool of a partisan administration--the offices with which he could be bribed, the promotions by which he could be rewarded. the influence of the british ministry over the judges has been "too flagrant to be mistaken." for example, in ireland "an overruling influence has crumbled [an independent judiciary] into ruins. the demon of destruction has entered their courts of justice, and spread desolation over the land. execution has followed execution, until the oppressed, degraded and insulted nation has been made to tremble through every nerve, and to bleed at every pore." the fate of ireland would be that of america, if an uncontrolled judiciary were allowed to carry out, without fear of impeachment, the will of a high-handed president, in order to win the preferments he had to offer. already "some of our judges have been elevated to places of high political importance.... let us nip the evil in the bud, or it may grow to an enormous tree, bearing destruction upon every branch."[ ] cæsar a. rodney of delaware strove to repair the havoc nicholson had wrought; he made it worse. the trial was, he said, "a spectacle truly solemn and impressive ... a trial of the first importance, because of the first impression; ... a trial ... whose novelty and magnitude have excited so much interest ... that it seems to have superseded for the moment, not only every other grave object or pursuit, but every other fashionable amusement or dissipation."[ ] rodney flattered burr, whose conduct of the trial had been "an example worthy of imitation." he cajoled the senators, whose attitude he had "observed with heartfelt pleasure and honest pride"; and he warned them not to take as a precedent the case of warren hastings, "that destroyer of the people of asia, that devastator of the east,"--murderer of men, violator of _zenanas_, destroyer of sacred treaties, but yet acquitted by the british house of lords. counsel for chase had spoken with "the fascinating voice of eloquence and the deluding tongue of ingenuity"; but rodney would avoid "everything like declamation" and speak "in the temperate language of reason."[ ] he was sure that "the weeping voice of history will be heard to deplore the oppressive acts and criminal excesses [of samuel chase].... in the dark catalogue of criminal enormities, perhaps few are to be found of deeper dye" than those named in the articles of impeachment. "the independence of the judiciary, the political tocsin of the day, and _the alarm bell of the night_, has been rung through every change in our ears.... the poor hobby has been literally rode to death." rodney was for a "rational independence of the judiciary," but not for the "inviolability of judges more than of kings.[ ] in this country i am afraid the doctrine has been carried to such an extravagant length, that the judiciary may be considered like a spoiled child." an independent judiciary, indeed! "we all know that an associate justice may sigh for promotion, and may be created a chief justice,[ ] while ... more than one chief justice has been appointed a minister plenipotentiary."[ ] with what result? had judges stood aloof from politics--or had they "united in the _io triumphe_ which the votaries and idolators of power have sung to those who were seated in the car of government? have they made no offerings at the shrine of party; have they not preached political sermons from the bench, in which they have joined chorus with the anonymous scribblers of the day and the infuriate instruments of faction?"[ ] in this fashion rodney began a song of praise of jefferson, for the beneficence of whose administration "the lamentable annals of mankind afford no example." after passing through many "citadels" and "scean gates," and other forms of rhetorical architecture, he finally discovered chase "seated in a curricle of passion" which the justice had "driven on, phæton-like, ... with destruction, persecution, and oppression" following. at last the orator attempted to discuss the law of the impeachment, taking the double ground that an officer could be removed for any act that two thirds of the senate believed to be not "good behavior," and that the chase impeachment was "a criminal prosecution." for parts of two days[ ] rodney examined every phase of the charges in a distracting mixture of high-flown language, scattered learning, extravagant metaphor, and jumbled logic.[ ] his speech was a wretched performance, so cluttered with tawdry rhetoric and disjointed argument that it would have been poor even as a stump speech. in an address that enraged the new england federalists, randolph closed for the house managers.[ ] he was late in arriving at the senate chamber. he had been so ill the day before that nicholson, because of randolph's "habitual indisposition," had asked the senate to meet two hours later than the usual time.[ ] sick as he was, without his notes (which he had lost), randolph nevertheless made the best argument for the prosecution. wasting no time, he took up the theory of impeachment upon which, he said, "the wildest opinions have been advanced"--for instance, "that an offense, to be impeachable, must be indictable." why, then, had the article on impeachment been placed in the constitution at all? why "not have said, at once, that any ... officer ... convicted on indictment should (_ipso facto_) be removed from office? this would be coming at the thing by a short and obvious way."[ ] suppose a president should veto every act of congress "indiscriminately"; it was his constitutional right to do so; he could not be indicted, but would anybody say he could not be impeached? or if, at a short session, the president should keep back until the last moment all bills passed within the previous ten days, as the constitution authorized him to do, so that it would be a physical impossibility for the two houses to pass the rejected measures over the president's veto, he could not be indicted for this abuse of power; but surely "he could be impeached, removed and disqualified."[ ] randolph's virginia soul was deeply stirred by what he considered chase's alternate effrontery and cowardice. is such a character "fit to preside in a court of justice?... today, haughty, violent, imperious; tomorrow, humble, penitent and submissive.... is this a character to dispense law and justice to this nation? no, sir!" randolph then drew an admirable picture of the ideal judge: "firm, indeed, but temperate, mild though unyielding, neither a blustering bravo, nor a timid poltroon."[ ] as far as he could go without naming him, randolph described john marshall. not without result had the politically experienced chief justice conciliated the house managers in the manner that had so exasperated the federalist senators. he would not thereafter be impeached if john randolph could prevent. with keen pleasure at the annoyance he knew his words would give to jefferson,[ ] randolph continued to praise marshall. the rejection of colonel taylor's testimony at the callender trial was contrary to "the universal practice of our courts." on this point "what said the chief justice of the united states," on whose evidence randolph said he specially relied? "he never knew such a case [to] occur before. he never heard a similar objection advanced by any court, until that instance. and this is the cautious and guarded language of a man placed in the delicate situation of being compelled to give testimony against a brother judge." with an air of triumph randolph asked: "can anyone doubt mr. marshall's thorough acquaintance with our laws? can it be pretended that any man is better versed in their theory and practice? and yet in all his extensive reading, his long and extensive practice, in the many trials of which he has been spectator, and the yet greater number at which he has assisted, he had never witnessed such a case." chase alone had discovered "this fatal novelty, this new and horrible doctrine that threatens at one blow all that is valuable in our criminal jurisprudence." had martin shown that chase was right in requiring questions to be reduced to writing? "here again," declared randolph, "i bottom myself upon the testimony of the same great man, yet more illustrious for his abilities than for the high station that he fills, eminent as it is." and he recited the substance of marshall's testimony on this point. consider his description of the bearing of chase toward counsel! "i again ask you, what said the chief justice?... and what did he _look_?[ ] he felt all the delicacy of his situation, and, as he could not approve, he declined giving any opinion on the demeanor of his associate."[ ] in such manner randolph extolled marshall. again he apostrophized the chief justice. if fries and callender "had had fair trials, our lips would have been closed in eternal silence. look at the case of logwood: the able and excellent judge whose worth was never fully known until he was raised to the bench ... uttered not one syllable that could prejudice the defense of the prisoner." once more he contrasted the judicial manners and rulings of marshall with those of chase: "the chief justice knew that, sooner or later, the law was an over-match for the dishonest, and ... he disdained to descend from his great elevation to the low level of a public prosecutor." the sick man spoke for two hours and a half, his face often distorted and his body writhing with pain. finally his tense nerves gave way. only public duty had kept him to his task, he said. "in a little time and i will dismiss you to the suggestions of your own consciences. my weakness and want of ability prevent me from urging my cause as i could wish, but"--here the overwrought and exhausted man broke into tears--"it is the last day of my sufferings and of yours." mastering his indisposition, however, randolph closed in a passage of genuine power: "we adjure you, on behalf of the house of representatives and of all the people of the united states, to exorcise from our courts the baleful spirit of party, to give an awful memento to our judges. in the name of the nation, i demand at your hands the award of justice and of law."[ ] so ended this unequal forensic contest in one of the most fateful trials in american history. the whole country eagerly awaited tidings of the judgment to be rendered by the senatorial tribunal. the fate of the supreme court, the character of the national judiciary, the career of john marshall, depended upon it. even union or disunion was involved; for if chase should be convicted, another and perhaps final impulse would be given to the secessionist movement in new england, which had been growing since the republican attack on the national judiciary in .[ ] when the senate convened at half-past twelve on march , , a dense mass of auditors filled every inch of space in the senate chamber.[ ] down the narrow passageway men were seen bearing a couch on which lay senator uriah tracy of connecticut, pale and sunken from sickness. feebly he rose and took one of the red-covered seats of the senatorial judges.[ ] "the sergeants-at-arms will face the spectators and seize and commit to prison the first person who makes the smallest noise or disturbance," sternly ordered aaron burr. "the secretary will read the first article of impeachment," he directed. "senator adams of massachusetts! how say you? is samuel chase, the respondent, guilty of high crimes and misdemeanors as charged in the article just read?" "not guilty!" responded john quincy adams. when the name of stephen r. bradley, republican senator from vermont, was reached, he rose in his place and voted against conviction. the auditors were breathless, the chamber filled with the atmosphere of suspense. it was the first open break in the republican ranks. two more such votes and the carefully planned battle would be lost to jefferson and his party. "not guilty!" answered john gaillard, republican senator from south carolina. another republican defection and all would be over. it came from the very next senator whose name aaron burr pronounced, and from one whose answer will forever remain an enigma. "senator giles of virginia! how say you? is samuel chase guilty of the high crimes and misdemeanors as charged in the articles just read?" "not guilty!" only sixteen senators voted to impeach on the first article, nine republicans aligning themselves with the nine federalists. the vote on the other articles showed varying results; on the fourth, fourteen senators responded "guilty!"; on the fifth, the senate was unanimous for chase. upon the eighth article--chase's political charge to the baltimore grand jury--the desperate republicans tried to recover, giles now leading them. indeed, it may be for this that he cast his first vote with his party brethren from the north--he may have thought thus to influence them on the one really strong charge against the accused justice. if so, his stratagem was futile. the five northern republicans (bradley and smith of vermont, mitchell and smith of new york, and john smith of ohio) stood firm for acquittal as did the obstinate john gaillard of south carolina.[ ] the punctilious burr ordered the names of senators and their recorded answers to be read for verification.[ ] he then announced the result: "it appears that there is not a constitutional majority of votes finding samuel chase, esq. guilty of any one article. it therefore becomes my duty to declare that samuel chase, esq. stands acquitted of all the articles exhibited by the house of representatives against him."[ ] the fight was over. there were thirty-four senators, nine of them federalists, twenty-five republicans. twenty-two votes were necessary to convict. at their strongest the republicans had been able to muster less than four fifths of their entire strength. six of their number--the new york and vermont senators, together with john gaillard of south carolina and john smith of ohio--had answered "not guilty" on every article. for the first time since his appointment, john marshall was secure as the head of the supreme bench.[ ] for the first time since jefferson's election, the national judiciary was, for a period, rendered independent. for the first time in five years, the federalist members of the nation's highest tribunal could go about their duties without fear that upon them would fall the avenging blade of impeachment which had for half a decade hung over them. one of the few really great crises in american history had passed.[ ] "the greatest and most important trial ever held in this nation has terminated justly," wrote senator plumer to his son. "the venerable judge whose head bears the frost of seventy winters,[ ] is honorably acquitted. i never witnessed, in any place, such a display of learning as the counsel for the accused exhibited."[ ] chagrin, anger, humiliation, raged in randolph's heart. his long legs could not stride as fast as his frenzy, when, rushing from the scene of defeat, he flew to the floor of the house. there he offered an amendment to the constitution providing that the president might remove national judges on the joint address of both houses of congress.[ ] "tempest in the house," records cutler.[ ] nicholson was almost as frantic with wrath, and quickly followed with a proposal so to amend the constitution that state legislatures might, at will, recall senators.[ ] republicans now began to complain to their party foes of one another. over a "rubber of whist" with john quincy adams, senator jackson of georgia, even before the trial, had spoken "slightingly both of mr. john randolph and of mr. nicholson";[ ] and this criticism of republicans _inter se_ now increased. jefferson's feelings were balanced between grief and glee; his mourning over the untoward result of his cherished programme of judicial reform was ameliorated by his pleasure at the overthrow of the unruly randolph,[ ] who had presumed to dissent from the president's georgia land policy.[ ] the great politician's cup of disappointment, which the acquittal of chase had filled, was also sweetened by the knowledge that republican restlessness in the northern states would be quieted; the federalists who were ready, on other grounds, to come to his standard would be encouraged to do so; and the new england secession propaganda would be deprived of a strong argument. he confided to the gossipy william plumer, the federalist new hampshire senator, that "impeachment is a farce which will not be tried again."[ ] the chief justice of the united states, his peril over, was silent and again serene, his wonted composure returned, his courage restored. he calmly awaited the hour when the wisdom of events should call upon him to render another and immortal service to the american nation. that hour was not to be long delayed. footnotes: [ ] giles was appointed senator august , , by the governor to fill the unexpired term of abraham venable who resigned in order that giles might be sent to the senate. in december the legislature elected him for the full term. upon taking his seat giles immediately became the republican leader of the senate. (see anderson, .) [ ] dec. , , _memoirs, j. q. a._: adams, i, - . [ ] dec. , . _memoirs, j. q. a._: adams, i, - . [ ] plumer, - ; and see especially plumer, jan. , , "congress," plumer mss. lib. cong. [ ] the powerful republican organ, the _aurora_, of philadelphia, thus indicted the national judiciary: because judges could not be removed, "many wrongs are daily done by the courts to humble, obscure, or poor suitors.... it is a prodigeous monster in a free government to see a class of men set apart, not simply to administer the laws, but who exercise a legislative and even an executive power, directly in defiance and contempt of the constitution." (_aurora_, jan. , , as quoted in corwin, .) professor corwin says that this utterance was approved by jefferson. [ ] "mr. giles from virginia ... is the ministerial leader in the senate." (plumer to thompson, dec. , , plumer mss. lib. cong.) "i considered m^{r.} giles as the ablest _practical_ politician of the whole party enlisted under m^{r.} jefferson's banners." (pickering to marshall, jan. , , pickering mss. mass. hist. soc.) [ ] william johnson of south carolina, appointed march , , vice william moore, resigned. johnson was a stanch jeffersonian when appointed. he was thirty-three years old at the time he was made associate justice. [ ] it is impossible to put too much emphasis on giles's avowal. his statement is the key to the chase impeachment. [ ] adams to his father, march , , _writings, j. q. a._: ford, iii, . [ ] pickering to lyman, feb. , , _n.e. federalism_: adams, ; lodge: _cabot_, ; also see plumer, . [ ] plumer to mason, jan. , , plumer mss. lib. cong. [ ] bayard to bassett, feb. , , _bayard papers_: donnan, . [ ] channing: _jeffersonian system_, - ; adams: _u.s._ ii, - , ; anderson, , . [ ] smith to plumer, feb. , , plumer mss. lib. cong. [ ] see _infra_, - , . [ ] cranch, - . [ ] see vol. ii, - , of this work. [ ] see vol. ii, - , of this work. [ ] fifteen years passed before a critical occasion called for another assertion by marshall of the doctrine of implied powers; and that occasion produced one of marshall's greatest opinions--in the judgment of many, the greatest of all his writings. (see mcculloch _vs._ maryland, vol. iv, chap. vi, of this work.) [ ] addison's address is historically important; it perfectly shows the distrust of democracy which all federalist leaders then felt. among other things, he pleaded for the independence of the judiciary, asserted that it was their exclusive province to decide upon the constitutionality of laws, and stoutly maintained that no judge could be impeached except for an offense for which he also could be indicted. (_addison trial_, - .) [ ] the petition praying for the impeachment of addison was sent to the pennsylvania house of representatives on january , . on march , , that body transmitted articles of impeachment to the state senate. the trial was held in early january, . addison was convicted january , . (_ib._) [ ] jefferson's message was transmitted to the house, february , , nine days after the conviction of addison. it enclosed a "letter and affidavits" setting forth pickering's conduct on the bench in the case of the ship eliza, and suggested that "the constitution has confided [to the house] a power of instituting proceedings of redress." (_annals_, th cong. d sess. .) on march the committee reported a resolution for pickering's impeachment because of the commission by him of "high crimes and misdemeanors," and, though a few federalists tried to postpone a vote, the resolution was adopted immediately. [ ] depositions of samuel tenney, ammi r. cutter, joshua brackett, edward st. loe livermore. (_annals_, th cong. st sess. - .) [ ] testimony of john s. sherburne, thomas chadbourne, and jonathan steele. (_ib._ - .) [ ] the wise and comprehensive federalist judiciary act of covered just such cases. it provided that when a national judge was unable to discharge the duties of his office, the circuit judges should name one of their members to fill his place. (see _annals_, th cong. d sess. .) this very thing had been done in the case of judge pickering (see mcmaster: _u.s._ iii, ). it is curious that, in the debate, the republicans did not denounce this as unconstitutional. [ ] plumer, jan. , , "congress," plumer mss. lib. cong. [ ] _annals_, th cong. st sess. - . [ ] _memoirs, j. q. a._: adams, i, - . [ ] "this," records adams, "had evidently been settled ... out of court. and this is the way in which these men administer justice." (_ib._) [ ] "in the house ... speeches are making every day to dictate to the senate how they are to proceed; and the next morning they proceed accordingly." (_ib._ - .) [ ] feb. , , plumer, . [ ] _annals_, th cong. st sess. . [ ] see _memoirs, j. q. a._; adams, i, - , for a vivid account of the whole incident. [ ] plumer, march , , "congress," plumer mss. lib. cong. [ ] _annals_, th cong. st sess. . "the independence of our judiciary is no more ... i hope the time is not far distant when the people east of the north river _will manage their own affairs in their own way_; ... and that the _sound_ part will separate from the _corrupt_." (plumer to morse, march , , plumer mss. lib. cong.) on the unconstitutional and revolutionary conduct of the republicans in the pickering impeachment trial see adams: _u.s._ ii, . [ ] senators john armstrong of new york, stephen r. bradley of vermont, and david stone of north carolina. jonathan dayton of new jersey and samuel white of delaware, federalists, also withdrew. (_annals_, th cong. st sess. .) and see _memoirs, j. q. a._: adams, i, - ; j. q. adams to his father, march , , _writings, j. q. a._: ford, iii, ; plumer to park, march , , plumer mss. lib. cong. senator john brown of kentucky, a republican, "could not be induced to join the majority, but, unwilling to offend them, he obtained & has taken a leave of absence." (plumer to morse, march , , plumer mss. lib. cong.) senator brown had been elected president _pro tem._ of the senate, january , . burr "abruptly left the senate" to attend to his candidacy for the governorship of new york. (plumer, march , , "congress," plumer mss. lib. cong.) senator franklin of north carolina was then chosen president _pro tem._ and presided during the trial of pickering. but burr returned in time to arrange for, and preside over, the trial of justice chase. [ ] the republicans even refused to allow the report of the proceedings to be "printed in the appendix to the journals of the session." (_memoirs, j. q. a._: adams, i, .) the conviction and removal of pickering alarmed the older federalists almost as much as did the repeal of the judiciary act. "the _demon_ of party governed the decision. all who condemned were jeffersonians, and all who pronounced the accused not guilty were federalists." (pickering to lyman, march , , _n.e. federalism_: adams, - ; lodge: _cabot_, .) "i really wish those in new england who are boasting of the independence of our judiciary would reflect on what a slender tenure judges hold their offices whose political sentiments are at variance with the dominant party." (plumer to park, march , , plumer mss. lib. cong.) [ ] exhibit viii, _chase trial_, appendix, - ; also see _annals_, th cong. d sess. - . [ ] june , . [ ] see _chase trial_, _et seq._ [ ] see mcmaster: _u.s._ iii, - . [ ] jefferson to nicholson, may , , _jefferson writings_: washington, iv, . [ ] macon to nicholson, aug. , , dodd: _life of nathaniel macon_, - . macon seriously doubted the expediency and legality of the impeachment of chase. however, he voted with his party. [ ] dodd, - . [ ] adams to rush, june , , _old family letters_, . [ ] chase "is very obnoxious to the _powers that be_ & must be _denounced_, but articles will not be exhibited agt him this session. the accusers have collected a volume of exparte evidence against him, printed & published it in pamphlets, & now it is publishing in the court gazette to be diffused in every direction.... if a party to a suit at law, ... was to practice in this manner he would merit punishment." (plumer to smith, march , , plumer mss. lib. cong.) [ ] see _supra_, chap. i. for the articles of impeachment see _annals_, th cong. d sess. - ; _chase trial_, - . the republicans, for a time, contemplated the impeachment of richard peters, judge of the united states court for the district of pennsylvania, who sat with chase during the trial of fries. (_annals_, th cong. st sess. - , , - .) but his name was dropped because he had not "so acted in his judiciary capacity as to require the interposition of the constitutional powers of this house." (_ib._ .) peters was terrified and turned upon his fellow judge. he showered pickering and other friends with letters, complaining of the conduct of his judicial associate. "if i am to be immolated let it be with some other victim--or for my own sins." (peters to pickering, jan. , , pickering mss. mass. hist. soc.) [ ] j. q. adams to his father, march , , _writings, j. q. a._: ford, iii, . [ ] dec. , , _memoirs, j. q. a._: adams, i, . [ ] plumer to cogswell, jan. , , plumer mss. lib. cong.; and see plumer to sheafe, jan. , , plumer mss. _loc. cit._ [ ] bayard to harper, jan. , , _bayard papers_: donnan, . [ ] pickering to lyman, march , , lodge: _cabot_, ; also _n.e. federalism_: adams, . [ ] ames to dwight, jan. , , ames, i, . [ ] the yazoo fraud. no other financial scandal in our history equaled this, if one considers the comparative wealth and population of the country at the times other various great frauds were perpetrated. for an account of it, see _infra_, chap. x. [ ] for randolph's frantic speech on the yazoo fraud and marshall's opinion in fletcher _vs_. peck, see _infra_, chap. x. [ ] this form was adopted in the trial of judge pickering. see _annals_, th cong. st sess. . [ ] see plumer, . [ ] channing: _u.s._ iv, . [ ] marshall to james m. marshall, april , , ms. [ ] william marshall. see _infra_, - . [ ] john wickham, leader of the richmond bar and one of marshall's intimate friends. [ ] see _supra_, chap. i; and _infra_. [ ] see kings, xii, . [ ] marshall to chase, jan. , , etting mss. pa. hist. soc. [ ] see _infra_, - . [ ] see _supra_, chap. iii, . [ ] "m^r burr had the sole power of making the arrangements ... for the trial." (plumer to sheafe, jan. , , plumer mss. lib. cong.) [ ] _annals_, th cong. d sess. ; _chase trial_, - . [ ] plumer to norris, nov. , , plumer, . [ ] see _infra_, chap. vi. [ ] see j. q. adams to his father, jan. , , _writings, j. q. a._: ford, iii, . [ ] plumer, . "john s. sherburne, jonathan steele, michael mccleary and richard cutts shannon were the principal witnesses against pickering. sherburne was appointed judge [in pickering's place]; steele, district attorney; mccleary, marshal; and shannon, clerk of the court.... steele, expecting to have been judge refused to accept his appointment, assigning as the reason his agency in the removal of pickering." [ ] plumer, - ; and see adams: _u.s._ ii, . [ ] nov. , , _memoirs, j. q. a._: adams, i, - ; and adams, _u.s._ ii, - . "burr is flattered and feared by the administration." (plumer to thompson, dec. , , plumer mss. lib. cong.; and plumer to wilson, dec. , , plumer mss. _loc. cit._) [ ] davis, ii, ; also adams: _u.s._ - . "it must be acknowledged that burr has displayed much ability, and since the first day i have seen nothing of partiality." (cutler to torrey, march , , cutler: _life, journals and correspondence of manasseh cutler_, ii, .) at the beginning of the trial, however, burr's rigor irritated the senate: "mr. burr is remarkably testy--he acts more of the tyrant--is impatient, passionate--scolds--he is in a rage because we do not sit longer." (plumer, feb. , , "diary," plumer mss. lib. cong.) "just as the time for adjourning to morrow was to be put ... mr. burr said he wished to inform the senate of some irregularities that he had observed in the court. "some of the senators as he said during the trial & while a witness was under examination walked between him & the managers--others eat apples--& some eat cake in their seats. "mr. pickering said he eat an apple--but it was at a time when the president had retired from the chair. burr replied he did not mean him--he did not see him. "mr. wright said he eat cake--he had a just right to do so--he was faint--but he disturbed nobody--he never would submit to be schooled & catechised in this manner. "at this instance a motion was made by bradley, who also had eaten cake, for an adjournment. burr told wright he was not in order--sit down. the senate adjourned--& i left burr and wright scolding. "really, _master burr_, you need a ferule, or birch to enforce your lectures on polite behavior!" (_ib._ feb. , ; also _ib._ jan. , .) burr was sharply criticized by the _washington federalist_, january , for his rude conduct at the beginning of the trial. [ ] plumer to sheafe, jan. , plumer, - . [ ] _annals_, th cong. d sess. ; _chase trial_, . [ ] dwight: _signers of the declaration of independence_, - . [ ] hudson: _journalism in the united states, - _, ; and see story to bramble, june , , story, i, . [ ] "in person, in manners, in unwieldy strength, in severity of reproof, in real tenderness of heart; and above all in intellect," he was "the living, i had almost said the exact, image of samuel johnson." (story to fay, feb. , , story, i, .) chase's career had been stirring and important. carefully educated by his father, an episcopal clergyman, and thoroughly grounded in the law, he became eminent at the maryland bar at a very early age. from the first his aggressive character asserted itself. he was rudely independent and, as a member of the maryland house of burgesses, treated the royal governor and his tory partisans with contemptuous defiance. when the british attempted to enforce the stamp act, he joined a band of high-spirited young patriots who called themselves "the sons of liberty," and led them in their raids upon public offices, which they broke open, seizing and destroying the stamps and burning in effigy the stamp distributor. his violent and fearless opposition to british rule and officials made young chase so popular that he was elected as one of the five maryland delegates to the first continental congress that assembled during the winter of . he was reëlected the following year, and was foremost in urging the measures of armed defense that ended in the appointment of washington as commander-in-chief of the american forces. disregarding the instructions of his state, chase hotly championed the adoption of the declaration of independence, and was one of the signers of that document. on the floor of congress he denounced a member as a traitor--one zubly, a georgia parson--who in terror fled the country. chase continued in the continental congress until and was appointed a member of almost every important committee of that body. he became the leader of his profession in maryland, was appointed chief justice of the criminal court of baltimore, and elected a member of the maryland convention, called to ratify the national constitution. thereafter, he was made chief justice of the supreme court of the state. in , president washington appointed chase as associate justice of the national supreme court of which he was conceded to be one of the ablest members. (dwight, - .) [ ] see plumer to his brother, feb. , , plumer mss. lib. cong. [ ] _maryland historical society fund-publication no. _, p. . burr told key that "he must not appear as counsel with his loose coat on." (plumer, feb. , , "diary," plumer mss. lib. cong.) [ ] adams: _u.s._ ii, - . bayard strongly urged chase to have no counsel, but to defend himself. (bayard to harper, jan. , , _bayard papers_: donnan, - .) [ ] see story's description of martin three years later, story to fay, feb. , , story, i, - . luther martin well illustrates the fleeting nature of the fame of even the greatest lawyers. for two generations he was "an acknowledged leader of the american bar," and his preëminence in that noble profession was brightened by fine public service. yet within a few years after his death, he was totally forgotten, and to-day few except historical students know that such a man ever lived. martin began his practice of the law when twenty-three years of age and his success was immediate and tremendous. his legal learning was prodigious--his memory phenomenal. apparently, martin was the heaviest drinker of that period of heavy drinking men. the inexplicable feature of his continuous excesses was that his mighty drinking seldom appeared to affect his professional efficiency. only once in his long and active career did intoxication interfere with his work in court. (see _infra_, .) passionate in his loves and hates, he abhorred jefferson with all the ardor of his violent nature; and his favorite denunciation of any bad man was, "sir! he is as great a scoundrel as thomas jefferson." for thirty years martin was the attorney-general of maryland. he was the most powerful member of his state in the convention that framed the national constitution which he refused to sign, opposing the ratification of it in arguments of such signal ability that forty years afterward john c. calhoun quarried from them the material for his famous nullification speeches. when, however, the constitution was ratified and became the supreme law of the land, martin, with characteristic wholeheartedness, supported it loyally and championed the administrations of washington and adams. he was the lifelong friend of the impeached justice, to whom he owed his first appointment as attorney-general of maryland as well as great assistance and encouragement in the beginning of his career. chase and he were also boon companions, each filled with admiration for the talents and attainments of the other, and strikingly similar in their courage and fidelity to friends and principles. so the lawyer threw himself into the fight for the persecuted judge with all his astonishing strength. when, in his old age, he was stricken with paralysis, the maryland legislature placed a tax of five dollars annually on all lawyers for his support. after martin's death the bench and bar of baltimore passed a resolution that "we will wear mourning for the space of thirty days." (_american law review_, i, .) no biography of martin has ever been written; but there are two excellent sketches of his life, one by ashley m. gould in _great american lawyers_: lewis, ii, - ; and the other by henry p. goddard in the _md. hist. soc. fund. pub. no. ._ [ ] _annals_, th cong. d sess. - . the case to which randolph refers was that of the united states _vs._ thomas logwood, indicted in april, , for counterfeiting. logwood was tried in the united states circuit court at richmond during june, . marshall, sitting with district judge cyrus griffin, presided. notwithstanding marshall's liberality, logwood was convicted and marshall sentenced him to ten years' imprisonment at hard labor. (order book no. , , records, u.s. circuit court, richmond.) [ ] _annals_, th cong. d sess. - ; _chase trial_, . randolph disgusted the federalists. "this speech is the most feeble--the most incorrect that i ever heard him make." (plumer, feb. , , "diary," plumer mss. lib. cong.) [ ] two witnesses to the baltimore incident, george reed and john montgomery, committed their testimony to memory as much "as ever a presbyterian clergyman did his sermon--or an episcopalian his prayer." (plumer, feb. , , "diary," plumer mss. lib. cong.) [ ] see _supra_, chap. i. [ ] _annals_, th cong. d sess. - ; _chase trial_, - . [ ] plumer, feb. , , "diary," plumer mss. lib. cong. [ ] _annals_, th cong. d sess. ; _chase trial_, . [ ] see _supra_, chap. i. [ ] _annals_, th cong. d sess. . john quincy adams's description of all of the evidence is important and entertaining: "not only the casual expressions dropped in private conversations among friends and intimates, as well as strangers and adversaries, in the recess of a bed-chamber as well as at public taverns and in stage coaches, had been carefully and malignantly laid up and preserved for testimony on this prosecution; not only more witnesses examined to points of _opinion_, and called upon for discrimination to such a degree as to say whether the deportment of the judge was _imperative_ or _imperious_, but hours of interrogation and answer were consumed in evidence to _looks_, to _bows_, to tones of voice and modes of speech--to prove the insufferable grievance that mr. chase had more than once raised a laugh at the expense of callender's counsel, and to ascertain the tremendous fact that he had accosted the attorney general _of virginia_ by the appellation of _young gentleman_!! "if by thumbscrews, the memory of a witness trace back for a period of five years the features of the judge's face, it could be darkened with a frown, it was to be construed into rude and contumelious treatment of the virginia bar; if it was found lightened with a smile, 'tyrants in all ages had been notorious for their pleasantry.' "in short, sir, gravity himself could not keep his countenance at the nauseating littlenesses which were resorted to for proof of atrocious criminality, and indignation melted into ridicule at the puerile perseverance with which _nothings_ were accumulated, with the hope of making _something_ by their multitude. "all this, however, was received because judge chase would not suffer his counsel to object against it. he indulged his accusers with the utmost licence of investigation which they ever derived [_sic_], and contented himself with observing to the court that he expected to be judged upon the _legal_ evidence in the case." (j. q. adams to his father, march , , _writings, j. q. a._: ford, iii, - .) [ ] this was the fourth member of the marshall family upon whom offices were bestowed while marshall was secretary of state. (see vol. ii, , of this work.) [ ] _annals_, th cong. d sess. - ; _chase trial_, - . "i was unable to give credence to his [heath's] testimony." (plumer, feb. , , "diary," plumer mss. lib. cong.) although heath's story was entirely false, it has, nevertheless, found a place in serious history. marshall's brother made an excellent impression on the senate. "his answers were both prompt & lucid--there was a frankness, a fairness & i will add a firmness that did him much credit. his testimony was [on certain points] ... a complete defense of the accused." (_ib._ feb. , .) [ ] harvie's son, jacquelin b. harvie, married marshall's daughter mary. (paxton: _marshall family_, .) [ ] _annals_, th cong. d sess. - ; _chase trial_, . [ ] plumer, feb. , , "diary," plumer mss. lib. cong. [ ] feb. , , _memoirs, j. q. a._: adams, i, . chase did not leave washington, and was in court when some of the arguments were made. (see chase to hopkinson, march , ; hopkinson mss. in possession of edward p. hopkinson, phila.) [ ] feb. , , _memoirs, j. q. a._: adams, i, . [ ] _ib._ the motion to admit the public was carried by one vote only. (plumer, feb. , , "diary," plumer mss. lib. cong.) [ ] feb. , , _memoirs, j. q. a._: adams, i, . [ ] feb. , , _ib._ . [ ] cutler, ii, ; also _annals_, th cong. d sess. - ; _chase trial_, - . [ ] plumer, feb. , , "diary," plumer mss. lib. cong. [ ] cutler, ii, . [ ] _annals_, th cong. d sess. - ; _chase trial_, _et seq._ [ ] _memoirs, j. q. a._: adams, i, - . [ ] plumer, feb. , , "diary," plumer mss. lib. cong. [ ] adams: _u.s._ ii, . even randolph praised him. (_annals_, th cong. d sess. .) [ ] _annals_, th cong. d sess. - ; _chase trial_, - . [ ] feb. , , _memoirs, j. q. a._: adams, i, . "the effect on the auditory [was] prodigiously great." (cutler, ii, .) "his argument ... was one of the most able ... i ever heard." (plumer, feb. , , "diary," plumer mss. lib. cong.) [ ] feb. , , _memoirs, j. q. a._: adams, i, . [ ] _annals_, th cong. d sess. - ; see also _chase trial_, - ; and cutler, ii, . [ ] _annals_, th cong. d sess. - ; _chase trial_, - . [ ] _annals_, th cong. d sess. - ; _chase trial_, _et seq._ [ ] _annals_, th cong. d sess. . [ ] _ib._ - . [ ] see résumé of franklin's indictment of the press in vol. i, - , of this work. [ ] _annals_, th cong. d sess. ; _chase trial_, * . [ ] "mr. martin really possesses much legal information & a great fund of good humour, keen satire & poignant wit ... he certainly has talents." (plumer, feb. , , "diary," plumer mss. lib. cong.) [ ] _annals_, th cong. d sess. ; _chase trial_, * . [ ] _annals_, th cong. d sess. ; _chase trial_, * - . [ ] _annals_, th cong. d sess. - ; _chase trial_, _et seq._ [ ] see jefferson to hay, _infra_, chap. viii. [ ] see _infra_, chap. x. [ ] _memoirs, j. q. a._: adams, i, . [ ] _annals_, th cong. d sess. ; _chase trial_, - . [ ] _annals_, th cong. d sess. . this was an under-statement of the facts; for the first time the celebration of washington's birthday was abandoned in the national capital. (plumer, .) plumer says that this was done because the celebration might hurt chase, "for there are senators who for the veriest trifles may be brought to vote against him." (feb. , , "congress," plumer mss. lib. cong.) [ ] _annals_, th cong. d sess. - ; _chase trial_, - . [ ] _annals_, th cong. d sess. - . [ ] rodney here refers to the republican allegation that chase tried to secure appointment as chief justice by flattering adams through charges to juries, rulings in court, and speeches on the stump. [ ] john jay to england and oliver ellsworth to france. (see vol. ii, , , of this work.) [ ] _annals_, th cong. d sess. - . [ ] _memoirs, j. q. a._: adams, i, . [ ] _annals_, th cong. d sess. - ; _chase trial_, - . [ ] cutler announced it as "an outrageous, infuriated declamation, which might have done honor to marat, or robespierre." (cutler, ii, .) [ ] _memoirs, j. q. a._: adams, i, . [ ] _annals_, th cong. d sess. ; _chase trial_, . [ ] _annals_, th cong. d sess. ; _chase trial_, . [ ] _annals_, th cong. d sess. - ; _chase trial_, . [ ] see _infra_, chap. x. [ ] see _supra_, . [ ] _annals_, th cong. d sess. - ; _chase trial_, . [ ] _annals_, th cong. d sess. - . john quincy adams notes in his diary that randolph spoke for more than two hours "with as little relation to the subject matter as possible--without order, connection, or argument; consisting altogether of the most hackneyed commonplaces of popular declamation." throughout, records adams, there was "much distortion of face and contortion of body, tears, groans and sobs." (_memoirs, j. q. a._: adams, i, .) "his speech ... was devoid of argument, method or consistency--but was replete with invective & even vulgarity.... i never heard him deliver such a weak feeble & deranged harangue." (plumer to his wife, feb. , , plumer mss. lib. cong.) "after he sat down--he threw his feet upon the table--distorted his features & assumed an appearance as disgusting as his harangue." (plumer, feb. , , "diary," plumer mss. lib. cong.) [ ] see _supra_, chaps. ii and iii; _infra_, chap. vi, and vol. iv, chap. i. [ ] "there was a vast concourse of people ... and great solemnity." (cutler to torrey, march , , cutler, ii, .) "the galleries were crowded--many ladies. i never witnessed so general & so deep an anxiety." (plumer to his wife, march , , plumer mss. lib. cong.) [ ] plumer, . [ ] _annals_, th cong. d sess. - ; _memoirs, j. q. a._: adams, i, - . [ ] _ib._ . [ ] _annals_, th cong. d sess. . by this time burr had changed to admiration the disapproval with which the federalist senators had, at first, regarded his conduct of the trial. "mr. burr has certainly, on the whole, done himself, the senate, and the nation honor by the dignified manner in which he has presided over this high and numerous court," testifies senator plumer, notwithstanding his deep prejudice against burr. (plumer, march , , "diary," plumer mss. lib. cong.) [ ] see adams: _u.s._ ii, . [ ] see plumer, ; _memoirs, j. q. a._: adams, i, ; adams: _john randolph_, - , ; channing: _jeff. system_, ; adams: _u.s._ ii, . [ ] plumer here adds six years to chase's age--an unusual inaccuracy in the diary of that born newspaper reporter. [ ] plumer to his son, march , , plumer, . [ ] _annals_, th cong. d sess. ; and see _annual report, am. hist. assn. _, ii, ; also adams: _u.s._ ii, . [ ] cutler, ii, . [ ] _annals_, th cong. d sess. ; and see j. q. adams to his father, march , , _writings, j. q. a._: ford, iii, . [ ] jan. , , _memoirs, j. q. a._: adams, i, . [ ] see adams: _u.s._ ii, . [ ] see _infra_, chap. x. [ ] plumer, . jefferson soon took plumer into the republican fold. chapter v biographer marshall has written libels on one side. (jefferson.) what seemed to him to pass for dignity, will, by his reader, be pronounced dullness. (edinburgh review.) that work was hurried into the world with too much precipitation. it is one of the most desirable objects i have in this life to publish a corrected edition. (marshall.) although the collapse of the chase impeachment made it certain that marshall would not be removed from office, and he was thus relieved from one source of sharp anxiety, two other causes of worry served to make this period of his life harried and laborious. his heavy indebtedness to denny fairfax[ ] continuously troubled him; and, worse still for his peace of mind, he was experiencing the agonies of the literary composer temperamentally unfitted for the task, wholly unskilled in the art, and dealing with a subject sure to arouse the resentment of jefferson and all his followers. marshall was writing the "life of washington." in a sense it is fortunate for us that he did so, since his long and tiresome letters to his publishers afford us an intimate view of the great chief justice and reveal him as very human. but the biography itself was to prove the least satisfactory of all the labors of marshall's life. not long after the death of washington, his nephew, bushrod washington, had induced marshall to become the biographer of "the father of his country." washington's public and private papers were in the possession of his nephew. although it was advertised that these priceless original materials were to be used in this work exclusively, many of washington's writings had already been used by other authors. marshall needed little urging to undertake this monumental labor. totally unfamiliar with the exhausting toil required of the historian, he deemed it no great matter to write the achievements of his idolized leader. moreover, he was in pressing need of money with which to pay the remaining $ , [ ] which his brother and he still owed on the fairfax purchase, as well as the smaller but yet annoying sum due their brother-in-law, rawleigh colston, for his share of the estate which the marshall brothers had bought of him.[ ] to discharge these obligations, marshall had nothing but his salary and the income from his lands, which were wholly insufficient to meet the demands upon him. some of his plantations, in fact, were "productive only of expense & vexation."[ ] marshall and bushrod washington made extravagant estimates of the prospective sales of the biography and of the money they would receive. everybody, they thought, would be eager to buy the true story of the life of america's "hero and sage." perhaps the multitude could not afford volumes so expensive as those marshall was to write, but there would be tens of thousands of prosperous federalists who could be depended upon to purchase at a generous price a definitive biography of george washington.[ ] nor was the color taken from these rosy expectations by the enthusiasm of those who wished to publish the biography. when it became known that the book was to be produced, many printers applied to bushrod washington "to purchase the copyright,"[ ] among them c. p. wayne, a successful publisher of philadelphia, who made two propositions to bring out the work. after a consultation with marshall, bushrod washington wrote wayne: "being ignorant of such matters ... we shall therefore decline any negotiation upon the subject for the present."[ ] after nearly two years of negotiation, marshall and his associate decided that the biography would require four or five volumes, and arrived at the modest opinion that there would be " , subscribers in america.... less than a dollar a volume cannot be thought of," and this price should yield to the author and his partner "$ , , supposing there to be five volumes. this ... would content us, whilst it would leave a very large profit" to the publisher. but, since the number of subscribers could not be foretold with exactness, marshall and bushrod washington decided to "consent to receive $ , for the copyright in the united states"; and they sternly announced that, "less than this sum we will not take."[ ] wayne sought to reduce the optimism of marshall and washington by informing them that "the greatest number of subscribers ever obtained for any one publication in this country was ... and the highest sum ever paid in for the copyright of any one work ... was , dollars." wayne thinks that marshall's work may sell better, but is sure that more than ten thousand sets cannot be disposed of for many years. he gives warning that, if the biography should contain anything objectionable to the british government, the sale of it would be prevented in england, as was the case with david ramsay's "history of the revolution."[ ] marshall and washington also "rec^d propositions for the purchase of the right to sell in g^{t.} britain," and so informed wayne, calling upon him to "say so" if he wished to acquire british, as well as american rights, "knowing the grounds upon which we calculate the value in the united states."[ ] so we find marshall counting on fifty thousand dollars[ ] at the very least from his adventure in the field of letters. his financial reckoning was expansive; but his idea of the time within which he could write so important a history was grotesque. at first he counted on producing " or volumes in octavos of from to pages each" in less than one year, provided "the present order of the courts be not disturbed or very materially changed."[ ] it thus appears that marshall expected the federalist judiciary act of to stand; that he would not be called upon to ride the long, tiresome, time-consuming southern circuit; and that, with no great number of cases to be disposed of by the supreme court, he would have plenty of leisure to write several large volumes of history in a single year. but the republican repeal of the act gave the disgusted chief justice "duties to perform," as john randolph expressed it. marshall was forthwith sent upon his circuit riding, and his fondly anticipated relief from official labors vanished. although he had engaged to write the biography during the winter following washington's death, not one line of it had he penned at the time the contract for publication was made in the autumn of . he had, of course, done some reading of the various histories of the period; but he had not even begun the examination of washington's papers, the subsequent study of which proved so irksome to him. after almost two years of bartering, a contract was made with wayne to print and sell the biography. this agreement, executed september , , gave to the publisher the copyright in the united states and all rights of the authors "in any part of north and south america and in the west india islands." the probable extent of the work was to be "four or five volumes in octavo, from four to five hundred pages" each; and it was "supposed" that these would "be compleated in less than two years"--marshall's original estimate of time having now been doubled. wayne engaged to pay "one dollar for every volume of the aforesaid work which may be subscribed for or which may be sold and paid for." it was further covenanted that the publisher should "not demand" of the public "a higher price than three dollars per volume in boards."[ ] this disappointed marshall, who had insisted that the volumes must be sold for four dollars each, a price which wayne declared the people would not pay.[ ] it would seem that for a long time marshall tried to conceal the fact that he was to be the author; and, when the first volume was about to be issued, strenuously objected to the use of his name on the title-page. however, jefferson soon got wind of the project. the alert politician took swift alarm and promptly suggested measures to counteract the political poison with which he was sure marshall's pen would infect public opinion. he consulted madison, and the two picked out the brilliant and versatile joel barlow, then living in paris, as the best man to offset the evil labor in which marshall was engaged. "mr. madison and myself have cut out a piece of work for you," jefferson wrote barlow, "which is to write the history of the united states, from the close of the war downwards. we are rich ourselves in materials, and can open all the public archives to you; but your residence here is essential, because a great deal of the knowledge of things is not on paper, but only within ourselves for verbal communication." then jefferson states the reason for the "piece of work" which he and madison had "cut out" for barlow: "john marshall is writing the life of gen. washington from his papers. it is intended to come out just in time to influence the next presidential election." the imagination of the party manager pictured marshall's work as nothing but a political pamphlet. "it is written therefore," jefferson continues, "principally with a view to electioneering purposes; but it will consequently be out in time to aid you with information as well as to point out the perversions of truth necessary to be rectified."[ ] thus marshall's book was condemned before a word of it had been written, and many months before the contract with wayne was signed--a circumstance that was seriously to interfere with subscriptions to the biography. jefferson's abnormal sensitiveness to even moderate criticism finally led him to the preparation of the most interesting and untrustworthy of all his voluminous papers, as a reply to marshall's "washington."[ ] news was sent to republicans all over the country that marshall's book was to be an attack upon their party. wayne tells marshall and washington of the danger, but washington testily assures the nervous publisher that he need have no fear: "the democrats may say what they please and i have expected they would say a great deal, but this is at least not intended to be a party work nor will any candid man have cause to make this charge."[ ] the contract signed, wayne quickly put in motion the machinery to procure subscribers. of this mechanism, the most important part should have been the postmasters, of whom wayne expected to make profitable use. there were twelve hundred of them, "each acquainted with all the gentlemen of their respective neighborhoods ... and their neighbors would subscribe at request, when they would not to a stranger.... all letters to and from these men go free of postage," wayne advised marshall, while assuring the anxious author that "every post master in the united states holds a subscription paper."[ ] but, thanks to jefferson, the postmasters were to prove poor salesmen of the product of marshall's pen. other solicitors, however, were also put to work: among them the picturesque mason locke weems, part whitefield, part villon, a delightful mingling of evangelist and vagabond, lecturer and politician, writer and musician.[ ] weems had himself written a "life of washington" which had already sold extensively among the common people.[ ] he had long been a professional book agent with every trick of the trade at his fingers' ends, and was perfectly acquainted with the popular taste. first, the parson-subscription agent hied himself to baltimore. "i average sub^s pr day. _thank god for that_," he wrote to his employer. he is on fire with enthusiasm: "if the work be done handsomely, you will sell at least , ," he brightly prophesies. within a week weems attacks the postmasters and insists that he be allowed to secure sub-agents from among the gentry: "the mass of riches and of population in america lie in the country. there is the wealthy yeomanry; and there the ready thousands who w^{d.} instantly second you were they but duly stimulated."[ ] almost immediately weems discovered a popular distrust of marshall's forthcoming volumes: "the people are very fearful that it will be prostituted to party purposes," he informs wayne. "_for heaven's sake, drop now and then a cautionary hint to john marshall esq._ your all is at stake with respect to this work. if it be done in a generally acceptable manner you will make your fortune. otherwise the work will fall an abortion from the press."[ ] weems's apprehension grew. wayne had written that the cities would yield more subscribers than the country. "for a moment, admit it," argues weems: "does it follow that the country is a mere blank, a cypher not worth your notice? because there are , wealthy families in the city and but , in the country, must nothing be tried to enlist , at least of these , ??? if the _fed^s sh^d be disappointed_, and the demo^s disgusted with gen^{l.} marshals performance, will it not be very convenient to have to good rustic blades to lighten your shelves & to shovel in the dol^$."[ ] the dean of book agents evidently was having a hard time, but his resourcefulness kept pace with his discouragement: "patriotic orations--gazetter puffs--washingtonian anecdotes, sentimental, moral military and wonderful--all sh^d be tried," he advises wayne.[ ] again, he notes the failure of the postmasters to sell marshall's now much-talked-of book. "in six months," he writes from martinsburg, virginia, "the p. master here got . in / day. _i thank god_, i've got sub^s."[ ] the outlook for subscriptions was even worse in new england. throughout the whole land, there was, it seems, an amazing indifference to washington's services to the nation. "i am sorry to inform you," wayne advised marshall and his associate, "that the prospect of an extensive subscription is gloomy in n. england, particularly they argue it is too expensive and wait for a cheaper edition--'tis like americans, mr. wolcott and mr. pickering say they are loud in their professions, but attempt to touch their purses and they shut them in a moment."[ ] writing from fredericksburg, virginia, weems at last mingles cheer with warning: "don't indulge a fear--let no sigh of thine arise. give _old washington fair play_ and all will be well. let but the _interior_ of the work be liberal & the _exterior elegant_, and a town house & a country house, a coach and sideboard and massy plate shall be thine." still, he declared, "i sicken when i think how much may be marr^d."[ ] a week later found the reverend solicitor at carlisle, pennsylvania, and here the influence of politics on the success of marshall's undertaking again crops out: "the place had been represented to me," records weems, "as a nest of anti washingtonian hornets who w^d draw their stings at mention of his name--and the fed [torn] lawyers are all gone to york--however, i dash^d in among them and _thank god_ have obtain^d already good names."[ ] by now even the slow-thinking bushrod washington had become suspicious of jefferson's postmasters: "the postmasters being (i believe) democrats.[ ] are you sure they will feel a disposition to advance the work?"[ ] later he writes: "i would not give one honest soliciting agent for quiescent postmasters."[ ] a year passed after the first subscriptions were made, and not even the first volume had appeared. indeed, no part of the manuscript had been finished and sent to the publisher. wayne was exasperated. "i am extremely anxious on this subject," he complains to bushrod washington, "as the public evince dissatisfaction at the delay. each hour i am questioned either verbally or by letter relative to it & its procrastination. the subscription seems to have received a check in consequence of an opinion that it is uncertain when the work will go to press. _twelve thousand_ dollars is the total cash yet rece^d--not quite , subscribers."[ ] by november, , many disgusted subscribers are demanding a refund of the money, and wayne wants the contract changed to the payment of a lump sum. the "public [are] exclaiming against the price of doll^s per vol.," and his sanguine expectations have evaporated: "i did hope that i should realize _half_ the number of subscribers you contemplated, _thirty thousand_; ... but altho' _two active_, and twelve hundred other agents have been employed months, the list of names _does_ not amount to _one seventh_ of the contemplated number."[ ] wayne insists on purchasing the copyright "for a _moderate, specifick_ sum" so that he can save himself from loss and "that the publick disgust may be removed." he has heard, he says, and quite directly, that the british rights have been sold "at two thousand doll^s!!!"--and this in spite of the fact that, only the previous year, marshall and washington "expected _seventy_ thousand."[ ] at last, more than three years after marshall had decided to embark upon the uncertain sea of authorship, he finished the first of the five volumes. and such a mass of manuscript! "it will make _at least_ eight hundred pages!!!!" moaned the distraught publisher. at that rate, considering the small number of subscribers and the greatly increased cost of paper and labor,[ ] wayne would be ruined. no title-page had been sent, and marshall's son, who had brought the manuscript to philadelphia, "astonished" wayne by telling him "that his father's name was not to appear in the title."[ ] when marshall learned that the publisher demanded a title-page bearing his name, he insisted that this was unnecessary and not required by the copyright law. "i am unwilling," he hastened to write wayne, "to be named in the book or in the clerk's office as the author of it, if it be avoidable." he cannot tell how many volumes there will be, or even examine, before some time in may, , washington's papers relating to the period of his two administrations. the first volume he wants "denominated _an introduction_." it is too long, he admits, and authorizes wayne to split it, putting all after "the peace of " into the second volume.[ ] marshall objects again to appearing as the author: "my repugnance to permitting my name to appear in the title still continues, but it shall yield to your right to make the best use you can of the copy." he does not think that "the name of the author being given or withheld can produce any difference in the number of subscribers"; but, since he does not wish to leave wayne "in the opinion that a real injury has been sustained," he would "submit scruples" to wayne and washington, "only requesting that [his] name may not be given but on mature consideration and conviction of its propriety." in any case, marshall declares: "i wish not my title in the judiciary of the united states to be annexed to it." he writes at great length about punctuation, paragraphing, capital letters, and spelling, giving minute directions, but leaves much to wayne's judgment. as to spelling: "in any doubtful case i wou^d decidedly prefer to follow johnson."[ ] two other long letters about details of printing the first volume followed. by the end of march, , his second volume was ready.[ ] he now becomes worried about "the inaccuracies ... the many and great defects in composition" of the first two volumes; but "the hurried manner in which it is press^d forward renders this inevitable." he begs bushrod washington to "censure and alter freely.... you mistake me very much if you think i rank the corrections of a friend with the bitter sarcasms of a foe, or that i shou^d feel either wounded or chagrined at my inattentions being pointed out by another."[ ] once more the troubled author writes his associate, this time about the spelling of "chesapeak" and "enterprise," the size of the second volume, and as to "the prospects of subscribers."[ ] not until june, , did marshall give the proof-sheets of the first volume even "a hasty reading" because of "the pressure of ... official business."[ ] totally forgotten was the agreed plan to publish maps in a separate volume, although it was thus "stated in the prospectus."[ ] he blandly informs the exasperated publisher that he must wait a long time after publishing the volumes describing the revolution and those on the presidency of washington before the manuscript of the last volume can be sent to press--this when many subscribers were clamoring for the return of the money they had paid, and the public was fast losing interest in the book. large events had meanwhile filled the heavens of popular interest, and george washington's heroic figure was already becoming dim and indistinct. the proof-sheets of the second volume were now in marshall's hands; but the toil of writing, "super-intending the copying," and various other avocations "absolutely disabled" him, he insists, from giving them any proper examination. he had no idea that he had been so careless in his writing and is anxious to revise the work for a second edition. he complains of his health and says he must spend the summer in the mountains, where, of course, he "cannot take the papers with [him] to prosecute the work." he will, however, read the pages of the first two volumes while on his vacation. the manuscript of the third he had finished and sent to bushrod washington.[ ] when wayne saw the length of it, his quaker blood was heated to wrath. did marshall's prolixity know no limit? the first two volumes had already cost the publisher far more than the estimate--would not washington persuade marshall to be more concise?[ ] by midsummer of the first two volumes appeared. they were a dismal performance. nevertheless, one or two federalist papers praised them, and marshall was as pleased as any youthful writer by a first compliment. he thanks wayne for sending the reviews and comments on one of them: "the very handsome critique in the 'political and commercial register' was new to me." he modestly admits: "i cou^d only regret that there was in it more of panuegyric than was merited. the editor ... manifests himself to be master of a style of a very superior order and to be, of course, a very correct judge of the composition of others." marshall is somewhat mollified that his parentage of the biography has been revealed: "having, heaven knows how reluctantly, consented against my judgement to be known as the author of the work in question i cannot be insensible to the opinions entertained of it. but, i am much more solicitous to hear the strictures upon it"--than commendation of it--because, he says, these would point out defects to be corrected. he asks wayne, therefore, to send to him at front royal, virginia, "every condemnatory criticism.... i shall not attempt to polish every sentence; that wou^d require repeated readings & a long course of time; but i wish to correct obvious imperfections & the animadversions of others wou^d aid me very much in doing so."[ ] [illustration: a part of marshall's list of corrections for his life of washington] within three weeks marshall had read his first volume in the form in which it had been delivered to subscribers, and was "mortified beyond measure to find that it [had] been so carelessly written." he had not supposed that so many "inelegancies ... cou^d have appeared in it," and regrets that he must require wayne to reset the matter "so materially." he informs his publisher, nevertheless, that he is starting on his vacation in the alleghanies; and he promises that when he returns he "will ... review the corrections" he has made in the first volume, although he would "not have time to reperuse the whole volume."[ ] not for long was the soul of the perturbed author to be soothed with praise. he had asked for "strictures"; he soon got them. wayne promptly sent him a "magazine[ ] containing a piece condemnatory of the work." furthermore, the books were not going well; not a copy could the publisher sell that had not been ordered before publication. "i have all those on hand which i printed over the number of subscribers," wayne sourly informs the author. in response to marshall's request for time for revision, wayne is now willing that he shall take all he wishes, since "present prospects would not induce [him] to republish," but he cautions marshall to "let the idea of a ^d edit. revised and corrected remain a secret"; if the public should get wind of such a purpose the stacks of volumes in wayne's printing house would never be sold. he must have the manuscript of the "_fourth_ vol. by the last of september at furthest.... can i have it?--or must i dismiss my people." at the same time he begs marshall to control his redundancy: "the first and second vols. have cost me ( ) fifteen hundred dollars more than calculated!"[ ] it was small wonder that marshall's first two bulky books, published in the early summer of , were not hailed with enthusiasm. in volume one the name of washington was mentioned on only two minor occasions described toward the end.[ ] the reader had to make his way through more than one hundred thousand words without arriving even at the cradle of the hero. the voyages of discovery, the settlements and explorations of america, and the history of the colonies until the treaty of paris in , two years before the stamp act of , were treated in dull and heavy fashion. the author defends his plan in the preface: no one connected narrative tells the story of all the colonies and "few would ... search through the minute details"; yet this he held to be necessary to an understanding of the great events of washington's life. so marshall had gathered the accounts of the various authorities[ ] in parts of the country and in england, and from them made a continuous history. if there were defects in the book it was due to "the impatience ... of subscribers" which had so hastened him. the volume is poorly done; parts are inaccurate.[ ] to bacon's rebellion are given only four pages.[ ] the story of the pilgrims is fairly well told.[ ] a page is devoted to roger williams and six sympathetic lines tell of his principles of liberty and toleration.[ ] the salem witchcraft madness is well treated.[ ] the descriptions of military movements constitute the least disappointing parts of the volume. the beginnings of colonial opposition to british rule are tiresomely set out; and thus at last, the reader arrives within twelve years of bunker hill. marshall admits that every event of the revolutionary war has been told by others who had examined washington's "immensely voluminous correspondence," and that he had copied these authors, sometimes using their very language. still, he promises the reader "a particular account of his [washington's] own life."[ ] one page and three lines at the beginning of the second volume are all that marshall gives of the ancestry, birth, environment, upbringing, education, and experiences of george washington, up to the nineteenth year of his age. on the second page the hero, fully uniformed and accoutred, is plunged into the french and indian wars. braddock's defeat, already described in the first volume, is repeated and elaborated.[ ] six lines, closing the first chapter, disposes of washington in marriage and describes the bride.[ ] about three pages are devoted to the stamp act speeches in the british parliament; while but one short paragraph is given to the immortal resolutions of patrick henry and the passage of them by the virginia house of burgesses. not a word describes the "most bloody" debate over them, and henry's time-surviving speech is not even referred to.[ ] all mention of the fact that washington was a fellow member with henry and voted for the resolutions is omitted. henry's second epoch-making speech at the outbreak of the revolution is not so much as hinted at, nor is any place found for the virginia resolutions for arming and defense, which his unrivaled eloquence carried. the name of the supreme orator of the revolution is mentioned for the second time in describing the uprising against lord dunmore,[ ] and then marshall adds this footnote: "the same gentleman who had introduced into the assembly of virginia the original resolution against the stamp act."[ ] marshall's account of the development of the idea of independence is scattered.[ ] he gives with unnecessary completeness certain local resolutions favoring it,[ ] while to the great declaration less than two pages[ ] are assigned. it is termed "this important paper"; and a footnote disposes of the fact that "mr. jefferson, mr. john adams, mr. franklin, mr. sherman, and mr. r. r. livingston, were appointed to prepare this declaration; and the draft reported by the committee has been generally attributed to mr. jefferson."[ ] a report of the talk between washington and colonel paterson of the british army, concerning the title by which washington insisted upon being addressed,[ ] is given one and one third times the space that is bestowed upon the declaration of independence. marshall is satisfactory only when dealing with military operations. he draws a faithful picture of the condition of the army;[ ] quotes washington's remorseless condemnations of the militia,[ ] short enlistments, and the democratic spirit among men and officers.[ ] when writing upon such topics, marshall is spirited; his pages are those of the soldier that, by nature, he was. the earliest objection to marshall's first two volumes came from american tories, who complained of the use of the word "enemy" as applied to the british military forces. wayne reluctantly calls marshall's attention to this. marshall replies: "you need make no apology for mentioning to me the criticism of the word 'enemy.' i will endeavor to avoid it where it can be avoided."[ ] unoffended by such demands, marshall was deeply chagrined by other and entirely just criticisms. why, he asks, had not some one pointed out to him "some of those objections ... to the plan of the work" before he wrote any part of it? he wishes "very sincerely" that this had been done. he "should very readily have relinquished [his own] opinion ... if [he] had perceiv^d that the public taste required a different course." thus, by implication, he blames wayne or bushrod washington, for his own error of judgment. marshall also reproaches himself, but in doing so he saddles on the public most of the burden of his complaints: "i ought, indeed, to have foreseen that the same impatience which precipitated the publication wou^d require that the life and transactions of mr. washington should be immediately entered upon." even if he had stuck to his original plans, still, he "ought to have departed from them so far as to have composed the introductory volume at leizure after the principal work was finished." marshall's "mortification" is, he says, also "increased on account of the careless manner in which the work has been executed." for the first time in his life he had been driven to sustained and arduous mental labor, and he found, to his surprise, that he "had to learn that under the pressure of constant application, the spring of the mind loses its elasticity.... but regrets for the past are unavailing," he sighs. "there will be great difficulty in retrieving the reputation of the first volume.... i have therefore some doubts whether it may not be as well to drop the first volume for the present--that is not to speak of a republication of it." he assures wayne that he need have no fears that he will mention a revised edition, and regrets that the third volume is also too long; his pen has run away with him. he would shorten it if he had the copy once more; but since that cannot be, perhaps wayne might omit the last chapter. brooding over the "strictures" he had so confidently asked for, he grows irritable. "whatever might have been the execution, the work wou^d have experienced unmerited censure. we must endeavor to rescue what remains to be done from such [criticism] as is deserved. i wish you to consult mr. washington."[ ] another very long letter from front royal quickly follows. marshall again authorizes the publisher himself to cut the bulk of the third volume, in the hope that it "will not be so defective.... it shall be my care to render the th more fit for the public eye." he promises wayne that, in case of a second edition,[ ] he will shorten his interminable pages which shall also "receive very material corrections." but a corrected and improved edition! "on this subject ... i remain silent.... perhaps a free expression of my thoughts ... may add to the current which seems to set against it." let the public take the first printing "before a second is spoken of."[ ] washington drew on the publisher[ ] and wrote wayne that "the disappointment will be very great if it is not paid." in december, , wayne sent the first royalty. it amounted to five thousand dollars.[ ] our author needed money badly. "i do not wish to press you upon the subject of further remittances but they will be highly acceptable," washington tells wayne, "particularly to mr. marshall, whose arrangements i know are bottomed upon the expectation of the money he is to receive from you."[ ] in january, , wayne sent washington another thousand dollars--"which i have paid," says washington, "to mr. marshall as i shall also do of the next thousand you remit."[ ] thus pressed, wayne sends more money, and by january , , marshall and washington have received the total sum of eight thousand seven hundred and sixty dollars.[ ] toward the end of february, , marshall completed the manuscript of the fourth volume. he was then in washington, and sent two copies from there to philadelphia by joseph hopkinson, who had just finished his notable work in the chase impeachment trial. "they are both in a rough state; too rough to be sent ... but it was impossible to have them recopied," marshall writes wayne. he admits they are full of errors in capitalization, punctuation, and spelling, but adds, "it has absolutely been impossible to make corrections in these respects."[ ] this he "fears will produce considerable difficulty." small wonder, with the chase trial absorbing his every thought and depressing him with heavy anxiety. marshall's relief from the danger of impeachment is at once reflected in his correspondence with wayne. two weeks after the acquittal of chase, he placidly informs his publisher that the fifth volume will not be ready until the spring of at the earliest. it is "not yet commenced," he says, "but i shall however set about it in a few days." he explains that there will be little time to work on the biography. "for the ensuing twelve months i shall scarcely have it in my power to be five in richmond."[ ] three months later he informs wayne that it will be "absolutely impossible" to complete the final volume by the time mentioned. "i regret this very seriously but it is a calamity for which there is no remedy." the cause of this irremediable calamity was "a tour of the mountains"--a journey to be made "for [his] own health and that of [his] family" from which he "cannot return till october." he still "laments sincerely that an introductory volume was written because [he] finds it almost impossible to compress the civil administration into a single volume. in doing it," he adds, "i shall be compelled to omit several interesting transactions & to mutilate others."[ ] at last marshall's eyes are fully opened to what should have been plain to him from the first. nobody wanted a tedious history of the discovery and settlement of america and of colonial development, certainly not from his pen. the subject had been dealt with by more competent authors. but the terrible years following the war, the constitutional period, the administrations of washington and the first half of that of adams, the decisive part played by washington throughout this critical time of founding and constructing--all these were virgin fields. they constituted, too, as vital an epoch in american history as the revolution itself. marshall's own life had been an important part of it, and he was not unequipped to give it adequate treatment. had marshall written of these years, it is probable that the well-to-do federalists alone would have purchased the thirty thousand sets that marshall originally counted on to be sold. he would have made all the money he had expected, done a real public service, and achieved a solid literary fame. his "life of washington" might have been the great social, economic, political, and constitutional history of the foundation processes of the government of the american nation. his entire five volumes would not have been too many for such a work. but all this matter relating to the formative years of the nation must now be crowded between two covers and offered to an indifferent, if not hostile, public--a public already "disgusted," as the publisher truly declared, by the unattractive rehash of what had already been better told. wayne again presses for a change in the contract; he wants to buy outright marshall's and washington's interests, and end the bankrupting royalty he is paying them: "if you were willing to take $ for sub^s i thought it would not be deemed illiberal in offering twenty thousand dollars for four thousand subscribers--this was two-sevenths of the original sum for less than _one-seventh_ of the subscribers contemplated." wayne asks marshall and washington to "state the lowest sum" they will take. subscriptions have stopped, and in three years he has sold only "_two copies_ ... to non-subscribers." but the harried publisher sends two thousand dollars more of royalty.[ ] in the autumn of , upon returning from his annual vacation, marshall is anxious to get to work, and he must have the _aurora_ and _freneau's gazette_ quickly. his "official duties recommence ... on the ^d of november from which time they continue 'till the middle of march." repeating his now favorite phrase, he says, "it is absolutely impossible to get the residue of the work completed in the short time which remains this fall." he has been sorely vexed and is a cruelly overworked man: "the unavoidable delays which have been experienced, the immense researches among volumes of manuscript, & chests of letters & gazettes which i am compelled to make will impede my progress so much that it is absolutely impossible" to finish the book at any early date.[ ] want of money continually embarrasses marshall: "what payments my good sir, will it be in your power to make us in the course of this & the next month?" bushrod washington asks wayne. "i am particularly anxious," he explains, "on account of mr. m.... his principal dependence is upon this fund."[ ] marshall now gets down to earnest and continuous labor and by july, , actually finishes the fifth and only important volume of the biography.[ ] during all these years the indefatigable weems continued his engaging career as book agent, and, like the subscribers he had ensnared, became first the victim of hope deferred and then of unrealized expectations. the delay in the publication of marshall's first volumes and the disfavor with which the public received them when finally they appeared, had, it seems, cooled the ardor of the horseback-and-saddlebag distributor of literary treasures. at all events, he ceases to write his employer about marshall's "life of washington," but is eager for other books.[ ] twice only, in an interval of two years, he mentions marshall's biography, but without spirit or enthusiasm.[ ] in the autumn of , he querulously refers to marshall and washington: "i did not call on _you_ [wayne] for increase of diurnal salary. i spoke to judge w. i hope and expect that he and gen. m.[ ] will do me something." marshall's third volume, which had now appeared, is an improvement on the first two. in it he continues his narrative of the revolutionary war until , and his statement of economic and financial conditions[ ] is excellent. the account of the battles of brandywine and germantown, in both of which he had taken part,[ ] is satisfactory,[ ] and his picture of the army in retreat is vivid.[ ] he faithfully relates the british sentiment among the people.[ ] curiously enough, he is not comprehensive or stirring in his story of valley forge.[ ] his descriptions of lafayette and baron von steuben are worthy.[ ] again and again he attacks the militia,[ ] and is merciless in his criticism of the slip-shod, happy-go-lucky american military system. these shortcomings were offset, he says, only by the conduct of the enemy.[ ] the treatment of american prisoners is set forth in somber words,[ ] and he gives almost a half-page of text[ ] and two and a half pages of appendix[ ] to the murder of miss mccrea. the story of the battle of monmouth in which marshall took part is told with spirit.[ ] nineteen pages[ ] are devoted to the history of the alliance with the french monarch, and no better résumé of that event, so fruitful of historic results, ever has been given. the last chapter describes the arrival of the british commission of conciliation, the propositions made by them, the american answer, the british attempts to bribe congress,[ ] followed by the indian atrocities of which the appalling massacres at kingston and wyoming were the worst. the long years of writing, the neglect and crudity of his first efforts, and the self-reproval he underwent, had their effect upon marshall's literary craftsmanship. this is noticeable in his fourth volume, which is less defective than those that preceded it. his delight in verbiage, so justly ridiculed by callender in ,[ ] is a little subdued, and his sense of proportion is somewhat improved. he again criticizes the american military system and traces its defects to local regulations.[ ] the unhappy results of the conflict of state and nation are well presented.[ ] the most energetic narrative in the volume is that of the treason of benedict arnold. in telling this story, marshall cannot curb the expression of his intense feeling against this "traitor, a sordid traitor, first the slave of his rage, then purchased with gold." marshall does not economize space in detailing this historic betrayal of america,[ ] imperative as the saving of every line had become. he relates clearly the circumstances that caused the famous compact between denmark, sweden, and russia known as "the armed neutrality," formed in order to check great britain's power on the seas. this was the first formidable assertion of the principle of equality among nations on the ocean. great britain's declaration of war upon holland, because that country was about to join "the armed neutrality," and because holland appeared to be looking with favor upon a commercial treaty which the united states wished to conclude with her, is told with dispassionate lucidity.[ ] marshall gives a compact and accurate analysis--by far the best work he has done in the whole four volumes--of the party beginnings discernible when the clouds of the revolutionary war began to break. he had now written more than half a million words, and this description was the first part of his work that could be resented by the republicans. the political division was at bottom economic, says marshall--those who advocated honest payment of public debts were opposed by those who favored repudiation; and the latter were also against military establishments and abhorred the idea of any national government.[ ] the fourth volume ends with the mutiny of part of the troops, the suppression of it, washington's farewell to his officers, and his retirement when peace was concluded. marshall's final volume was ready for subscribers and the public in the autumn of , just one year before the federalist campaign for the election of jefferson's successor--four years later than jefferson had anticipated.[ ] it was the only political part of marshall's volumes, but it had not the smallest effect upon the voters in the presidential contest. neither human events nor thomas jefferson had waited upon the convenience of john marshall. the federalist party was being reduced to a grumbling company of out-of-date gentlemen, leaders in a bygone day, together with a scattered following who, from force of party habit, plodded along after them, occasionally encouraged by some local circumstance or fleeting event in which they imagined an "issue" might be found. they had become anti-national, and, in their ardor for great britain, had all but ceased to be american. they had repudiated democracy and assumed an attitude of insolent superiority, mournful of a glorious past, despairing of a worthy future.[ ] marshall could not hope to revive the fast weakening federalist organization. the most that he could do was to state the principles upon which opposing parties had been founded, and the determinative conflicts that had marked the evolution of them and the development of the american nation. he could only set forth, in plain and simple terms, those antagonistic ideas which had created party divisions; and although the party to which one group of those ideas had given life was now moribund, they were ideas, nevertheless, which would inevitably create other parties in the future. the author's task was, therefore, to deal not only with the years that had gone; but, through his treatment of the past, with the years that were to come. he must expound the philosophy of nationalism as opposed to that of localism, and must enrich his exposition by the unwritten history of the period between the achievement of american independence and the vindication of it in our conflict with france. marshall was infinitely careful that every statement in his last volume should be accurate; and, to make sure of this, he wrote many letters to those who had first-hand knowledge of the period. among others he wrote to john adams, requesting permission to use his letters to washington. adams readily agreed, although he says, "they were written under great agitation of mind at a time when a cruel necessity compelled me to take measures which i was very apprehensive would produce the evils which have followed from them. if you have detailed the events of the last years of general washington's life, you must have run the gauntlet between two infuriated factions, armed with scorpions.... it is a period which must however be investigated, but i am very confident will never be well understood."[ ] because of his lack of a sense of proportion in planning his "life of washington," and the voluminousness of the minor parts of it, marshall had to compress the vital remainder. seldom has a serious author been called upon to execute an undertaking more difficult. marshall accomplished the feat in creditable fashion. moreover, his fairness, restraint, and moderation, even in the treatment of subjects regarding which his own feelings were most ardent, give to his pages not only the atmosphere of justice, but also something of the artist's touch. washington's nationalism is promptly and skillfully brought into the foreground.[ ] an excellent account of the society of the cincinnati contains the first covert reflection on jefferson.[ ] but the state of the country under the articles of confederation is passed over with exasperating brevity--only a few lines are given to this basic subject.[ ] the foundation of political parties is stated once more and far better--"the one ... contemplated america as a nation," while "the other attached itself to state authorities." the first of these was made up of "men of enlarged and liberal minds ... who felt the full value of national honour, and the full obligation of national faith; and who were persuaded of the insecurity of both, if resting for their preservation on the concurrence of thirteen distinct sovereignties"; and with these far-seeing and upright persons were united the "officers of the army" whose experience in war had weakened "local prejudices."[ ] thus, by mentioning the excellence of the members of one party, and by being silent upon the shortcomings of those of the other party, marshall imputes to the latter the reverse of those qualities which he praises--a method practiced throughout the book, and one which offended jefferson and his followers more than a direct attack could have done. he succinctly reviews the attempts at union,[ ] and the disputes between america and great britain over the treaty of peace;[ ] he quickly swings back to the evolution of political parties and, for the third time, reiterates his analysis of debtor and localist as against creditor and nationalist. "the one [party] struggled ... for the exact observance of public and private engagements"; to them "the faith of a nation, or of a private man was deemed a sacred pledge." these men believed that "the distresses of individuals" could be relieved only by work and faith, "not by a relaxation of the laws, or by a sacrifice of the rights of others." they thought that "the imprudent and idle could not be protected by the legislature from the consequences of their indiscretion; but should be restrained from involving themselves in difficulties, by the conviction that a rigid compliance with contracts would be enforced." men holding these views "by a natural association of ideas" were "in favour of enlarging the powers of the federal government, and of enabling it to protect the dignity and character of the nation abroad, and its interests at home."[ ] with these principles marshall sharply contrasts those of the other party: "viewing with extreme tenderness the case of the debtor, their efforts were unceasingly directed to his relief"; they were against "a faithful compliance with contracts"--such a measure they thought "too harsh to be insisted on ... and one which the people would not bear." therefore, they favored "relaxing ... justice," suspending the collection of debts, remitting taxes. these men resisted every attempt to transfer from their own hands into those of congress all powers that were, in reality, national. those who held to such "lax notions of honor," were, in many states, "a decided majority of the people," and were very powerful throughout the country. wherever they secured control, paper money, delay of justice, suspended taxes "were the fruits of their rule"; and where they were in the minority, they fought at every election for the possession of the state governments. in this fashion marshall again states those antipodal philosophies from which sprang the first two american political parties. with something like skill he emphasizes the conservative and national idea thus: "no principle had been introduced [in the state governments] which could resist the wild projects of the moment, give the people an opportunity to reflect, and allow the good sense of the nation time for exertion." the result of "this instability in principles which ought if possible to be rendered immutable, produced a long train of ills."[ ] the twin spirits of repudiation and localism on one side, contending for the mastery against the companion spirits of faith-keeping and nationalism on the other, were from the very first, says marshall, the source of public ill-being or well-being, as one or the other side prevailed. then follows a review of the unhappy economic situation which, as marshall leaves the reader to infer, was due exclusively to the operation of the principles which he condemns by the mere statement of them.[ ] so comes the philadelphia convention of that was deemed by many "an illegitimate meeting."[ ] although washington presided over, and was the most powerful influence in, the constitutional convention, marshall allots only one short paragraph to that fact.[ ] he enumerates the elements that prepared to resist the constitution; and brings out clearly the essential fact that the proposed government of the nation was, by those who opposed it, considered to be "foreign." he condenses into less than two pages his narrative of the conflict over ratification, and almost half of these few lines is devoted to comment upon "the federalist." marshall writes not one line or word of washington's power and activities at this critical moment. he merely observes, concerning ratification, that "the intrinsic merits of the instrument would not have secured" the adoption of the constitution, and that even in some of the states that accepted it "a majority of the people were in the opposition."[ ] he tells of the pressure on washington to accept the presidency. to these appeals and washington's replies, he actually gives ten times more space than he takes to describe the formation, submission, and ratification of the constitution itself.[ ] after briefly telling of washington's election to the presidency, marshall employs twenty pages in describing his journey to new york and his inauguration. then, with quick, bold strokes, he lays the final color on his picture of the state of the country before the new government was established, and darkens the tints of his portrayal of those who were opposing the constitution and were still its enemies. in swift contrast he paints the beginnings of better times, produced by the establishment of the new national government: "the new course of thinking which had been inspired by the adoption of a constitution that was understood to prohibit all laws impairing the obligation of contracts, had in a great measure restored that confidence which is essential to the internal prosperity of nations."[ ] he sets out adequately the debates over the first laws passed by congress,[ ] and is generous in his description of the characters and careers of both jefferson and hamilton when they accepted places in washington's first cabinet.[ ] he joyfully quotes washington's second speech to congress, in which he declares that "to be prepared for war is one of the most effectual means of preserving peace"; and in which the people are adjured "to discriminate the spirit of liberty from that of licentiousness."[ ] an analysis of hamilton's first report on the public credit follows. the measures flowing from it "originated the first regular and systematic opposition to the principles on which the affairs of the union were administered."[ ] in condensing the momentous debate over the establishment of the american financial system, marshall gives an excellent summary of the arguments on both sides of that controversy. he states those of the nationalists, however, more fully than the arguments of those who opposed hamilton's plan.[ ] while attributing to hamilton's financial measures most of the credit for improved conditions, marshall frankly admits that other causes contributed to the new-found prosperity: by "progressive industry, ... the influence of the constitution on habits of thinking and acting," and especially by "depriving the states of the power to impair the obligation of contracts, or to make any thing but gold and silver a tender in payment of debts, the conviction was impressed on that portion of society which had looked to the government for relief from embarrassment, that personal exertions alone could free them from difficulties; and an increased degree of industry and economy was the natural consequence."[ ] perhaps the most colorful pages of marshall's entire work are those in which he describes the effect of the french revolution on america, and the popular hostility to washington's proclamation of neutrality[ ] and to the treaty with great britain negotiated by john jay.[ ] in his treatment of these subjects he reveals some of the sources of his distrust of the people. the rupture between the united states and the french republic is summarized most inadequately. the greatest of washington's state papers, the immortal "farewell address,"[ ] is reproduced in full. the account of the x. y. z. mission is provokingly incomplete; that of american preparations for war with france is less disappointing. washington's illness and death are described with feeling, though in stilted language; and marshall closes his literary labors with the conventional analysis of washington's character which the world has since accepted.[ ] marshall's fifth volume was received with delight by the disgruntled federalist leaders. a letter of chancellor james kent is typical of their comments. "i have just finished ... the last vol. of washington's life and it is worth all the rest. it is an excellent history of the government and parties in this country from vol. to the death of the general."[ ] although it had appeared too late to do them any harm at the election of , the republicans and jefferson felt outraged by marshall's history of the foundation period of the government. jefferson said nothing for a time, but the matter was seldom out of his thoughts. barlow, it seems, had been laggard in writing a history from the republican point of view, as jefferson had urged him to do. three years had passed since the request had been made, and barlow was leaving for paris upon his diplomatic mission. jefferson writes his congratulations, "yet ... not unmixed with regret. what is to become of our past revolutionary history? of the antidotes of truth to the misrepresentations of marshall?"[ ] time did not lessen jefferson's bitterness: "marshall has written libels on one side,"[ ] he writes adams, with whom a correspondence is opening, the approach of old age having begun to restore good relations between these former enemies. jefferson's mind dwells on marshall's work with increasing anxiety: "on the subject of the history of the american revolution ... who can write it?" he asks. he speaks of botta's "history,"[ ] criticizing its defects; but he concludes that "the work is nevertheless a good one, more judicious, more chaste, more classical, and more true than the party diatribe of marshall. its greatest fault is in having taken too much from him."[ ] marshall's "party diatribe" clung like a burr in jefferson's mind and increased his irritation with the passing of the years. fourteen years after marshall's last volume appeared, justice william johnson of the supreme court published an account of the period[ ] covered by marshall's work, and it was severely criticized in the _north american review_. jefferson cheers the despondent author and praises his "inestimable" history: "let me ... implore you, dear sir, to finish your history of parties.... we have been too careless of our future reputation, while our tories will omit nothing to place us in the wrong." for example, marshall's "washington," that "five-volumed libel, ... represents us as struggling for office, and not at all to prevent our government from being administered into a monarchy."[ ] in his long introduction to the "anas," jefferson explains that he would not have thought many of his notes "worth preserving but for their testimony against the only history of that period which pretends to have been compiled from authentic and unpublished documents." had washington himself written a narrative of his times from the materials he possessed, it would, of course, have been truthful: "but the party feeling of his biographer, to whom after his death the collection was confided, has culled from it a composition as different from what genl. washington would have offered, as was the candor of the two characters during the period of the war. "the partiality of this pen is displayed in lavishments of praise on certain military characters, who had done nothing military, but who afterwards, & before he wrote, had become heroes in party, altho' not in war; and in his reserve on the merits of others, who rendered signal services indeed, but did not earn his praise by apostatising in peace from the republican principles for which they had fought in war." marshall's frigidity toward liberty "shews itself too," jefferson continues, "in the cold indifference with which a struggle for the most animating of human objects is narrated. no act of heroism ever kindles in the mind of this writer a single aspiration in favor of the holy cause which inspired the bosom, & nerved the arm of the patriot warrior. no gloom of events, no lowering of prospects ever excites a fear for the issue of a contest which was to change the condition of man over the civilized globe. "the sufferings inflicted on endeavors to vindicate the rights of humanity are related with all the frigid insensibility with which a monk would have contemplated the victims of an _auto da fé_. let no man believe that gen. washington ever intended that his papers should be used for the suicide of the cause, for which he had lived, and for which there never was a moment in which he would not have died." marshall's "abuse of these materials," jefferson charges, "is chiefly however manifested in the history of the period immediately following the establishment of the present constitution; and nearly with that my memorandums [the "anas"] begin. were a reader of this period to form his idea of it from this history alone, he would suppose the republican party (who were in truth endeavoring to keep the government within the line of the constitution, and prevent it's being monarchised in practice) were a mere set of grumblers, and disorganisers, satisfied with no government, without fixed principles of any, and, like a british parliamentary opposition, gaping after loaves and fishes, and ready to change principles, as well as position, at any time, with their adversaries."[ ] jefferson denounces hamilton and his followers as "monarchists," "corruptionists," and other favorite jeffersonian epithets, and marshall is again assailed: "the horrors of the french revolution, then raging, aided them mainly, and using that as a raw head and bloody bones they were enabled by their stratagems of x. y. z. in which this historian was a leading mountebank, their tales of tub-plots, ocean massacres, bloody buoys, and pulpit lyings, and slanderings, and maniacal ravings of their gardiners, their osgoods and parishes, to spread alarm into all but the firmest breasts."[ ] criticisms of marshall's "life of washington" were not, however, confined to jefferson and the republicans. plumer thought the plan of the work "preposterous."[ ] the reverend samuel cooper thatcher of boston reviewed the biography through three numbers of the _monthly anthology_.[ ] "every reader is surprized to find," writes mr. thatcher, "the history of north america, instead of the life of an individual.... he [washington] is always presented ... in the pomp of the military or civil costume, and never in the ease and undress of private life." however, he considers marshall's fifth volume excellent. "we have not heard of a single denial of his fidelity.... in this respect ... his work [is] _unique_ in the annals of political history." thatcher concludes that marshall's just and balanced treatment of his subject is not due to a care for his own reputation: "we are all so full of agitation and effervescence on political topicks, that a man, who keeps his temper, can hardly gain a hearing." indeed, he complains of marshall's fairness: he writes as a spectator, instead of as "one, who has himself descended into the arena ... and is yet red with the wounds which he gave, and smarting with those which his enemies inflicted in return"; but the reviewer charges that these volumes are full of "barbarisms" and "grammatical impurities," "newspaper slang," and "unmeaning verbiage." the reverend timothy flint thought that marshall's work displayed more intellect and labor than "eloquence and interest."[ ] george bancroft, reviewing sparks's "washington," declared that "all that is contained in marshall is meagre and incomplete in comparison."[ ] even the british critics were not so harsh as the _new york evening post_, which pronounced the judgment that if the biography "bears any traces of its author's uncommon powers of mind, it is in the depths of dulness which he explored."[ ] the british critics were, of course, unsparing. the _edinburgh review_ called marshall's work "unpardonably deficient in all that constitutes the soul and charm of biography.... we look in vain, through these stiff and countless pages, for any sketch or anecdote that might fix a distinguishing feature of private character in the memory.... what seemed to pass with him for dignity, will, by his reader, be pronounced dullness and frigidity."[ ] _blackwood's magazine_ asserted that marshall's "life of washington" was "a great, heavy book.... one gets tired and sick of the very name of washington before he gets half through these ... prodigious ... octavos."[ ] marshall was somewhat compensated for the criticisms of his work by an event which soon followed the publication of his last volume. on august , , he was elected a corresponding member of the massachusetts historical society. in a singularly graceful letter to john eliot, corresponding secretary of the society at that time, marshall expresses his thanks and appreciation.[ ] as long as he lived, marshall worried over his biography of washington. when anybody praised it, he was as appreciative as a child. in , archibald d. murphey eulogized marshall's volumes in an oration, a copy of which he sent to the chief justice, who thanks murphey, and adds: "that work was hurried into a world with too much precipitation, but i have lately given it a careful examination and correction. should another edition appear, it will be less fatiguing, and more worthy of the character which the biographer of washington ought to sustain."[ ] toilsomely he kept at his self-imposed task of revision. in , bushrod washington wrote wayne to send marshall "the last three volumes in sheets (the two first he has) that he may devote this winter to their correction."[ ] when, five years later, the chief justice learned that wayne was actually considering the risk of bringing out a new edition, marshall's delight was unbounded. "it is one of the most desirable objects i have in this life to publish a corrected edition of that work. i would not on any terms, could i prevent it, consent that one other set of the first edition should be published."[ ] finally, in , the revised biography was published. marshall clung to the first volume, which was issued separately under the title "history of the american colonies." the remaining four volumes were, seemingly, reduced to two; but they were so closely printed and in such comparatively small type that the real condensation was far less than it appeared to be. the work was greatly improved, however, and is to this day the fullest and most trustworthy treatment of that period, from the conservative point of view.[ ] fortunately for marshall, the work required of him on the bench gave him ample leisure to devote to his literary venture. during the years he consumed in writing his "life of washington" he wrote fifty-six opinions in cases decided in the circuit court at richmond, and in twenty-seven cases determined by the supreme court. only four of them[ ] are of more than casual interest, and but three of them[ ] are of any historical consequence. all the others deal with commercial law, practice, rules of evidence, and other familiar legal questions. in only one case, that of marbury _vs._ madison, was he called upon to deliver an opinion that affected the institutions and development of the nation. footnotes: [ ] see vol. ii, - , of this work. [ ] see _infra_; also vol. ii, , of this work. [ ] marshall to james m. marshall, april , . ms. [ ] marshall to peters, oct. , , peters mss. pa. hist. soc. [ ] several persons were ambitious to write the life of washington. david ramsay and mason locke weems had already done so. noah webster was especially keen to undertake the task, and it was unfortunate that he was not chosen to do it. [ ] washington to wayne, april , , dreer mss. pa. hist. soc. [ ] _ib._ [ ] bushrod washington to wayne, dec. , , dreer mss. _loc. cit._ [ ] wayne to bushrod washington, dec. , , dreer mss. _loc. cit._ [ ] bushrod washington to wayne, dec. , , dreer mss. _loc. cit._ [ ] the division was to be equal between marshall and washington. [ ] bushrod washington to wayne, dec. , , dreer mss. _loc. cit._ [ ] "articles of agreement" between c. p. wayne and bushrod washington, sept. , . (dreer mss. _loc. cit._) marshall's name does not appear in the contract, washington having attended to all purely business details of the transaction. [ ] wayne to bushrod washington, may , , dreer mss. _loc. cit._ [ ] jefferson to barlow, may , , _works_: ford, ix, . [ ] the "anas," _works_: ford, i, - , see _infra_. the "anas" was jefferson's posthumous defense. it was arranged for publication as early as , but was not given to the public until after his death. it first appeared in the edition of jefferson's works edited by his grandson, thomas jefferson randolph. "it is the most precious mélange of all sorts of scandals you ever read." (story to fay, feb. , , story, ii, .) [ ] bushrod washington to wayne, nov. , , dreer mss. _loc. cit._ [ ] wayne to marshall, feb. , , dreer mss. _loc. cit._ [ ] weems is one of the most entertaining characters in american history. he was born in maryland, and was one of a family of nineteen children. he was educated in london as a physician, but abandoned medicine for the church, and served for several years as rector of two or three little episcopal churches in maryland and ministered occasionally at pohick church, in truro parish (sometimes called mount vernon parish), virginia. in this devout occupation he could not earn enough to support his very large family. so he became a professional book agent--the greatest, perhaps, of that useful fraternity. on horseback he went wherever it seemed possible to sell a book, his samples in his saddlebags. he was a natural orator, a born entertainer, an expert violinist; and these gifts he turned to good account in his book-selling activities. if a political meeting was to be held near any place he happened upon, weems would hurry to it, make a speech, and advertise his wares. a religious gathering was his joy; there he would preach and exhort--and sell books. did young people assemble for merrymaking, weems was in his element, and played the fiddle for the dancing. if he arrived at the capital of a state when the legislature was in session, he would contrive to be invited to address the solons--and procure their subscriptions. [ ] weems probably knew more of the real life of the country, from pennsylvania southward, than any other one man; and he thoroughly understood american tastes and characteristics. to this is due the unparalleled success of his _life of washington_. in addition to this absurd but engaging book, weems wrote the _life of gen. francis marion_ ( ); the _life of benjamin franklin_ ( ); and the _life of william penn_ ( ). he was also the author of several temperance pamphlets, the most popular of which was the _drunkard's looking glass_. weems died in . weems's _life of washington_ still enjoys a good sale. it has been one of the most widely purchased and read books in our history, and has profoundly influenced the american conception of washington. to it we owe the grotesque and wholly imaginary stories of young washington and the cherry tree, the planting of lettuce by his father to prove to the boy the designs of providence, and other anecdotes that make that intensely human founder of the american nation an impossible and intolerable prig. the only biography of weems is _parson weems_, by lawrence c. wroth, a mere sketch, but trustworthy and entertaining. [ ] weems to wayne, dec. , , dreer mss. _loc. cit._ [ ] same to same, dec. , , dreer mss. _loc. cit._ [ ] weems to wayne, dec. , , dreer mss. _loc. cit._ [ ] same to same, dec. , , dreer mss. _loc. cit._ [ ] same to same, april , , dreer mss. _loc. cit._ [ ] wayne to bushrod washington, jan. , , dreer mss. _loc. cit._ [ ] weems to wayne, april , , dreer mss. _loc. cit._ [ ] same to same, april , , dreer mss. _loc. cit._ [ ] bushrod washington, like the other federalists, would not call his political opponents by their true party name, republicans: he styled them "democrats," the most opprobrious term the federalists could then think of, excepting only the word "jacobins." (see vol. ii, , of this work.) [ ] washington to wayne, march , , dreer mss. _loc. cit._ [ ] same to same. march , , dreer mss. _loc. cit._ [ ] wayne to washington, oct. , , dreer mss. _loc. cit._ an interesting sidelight on the commercial methods of the times is displayed by a circular which wayne sent to his agents calling for money from subscribers to marshall's _life of washington_: "the remittance may be made through the post office, and should any danger be apprehended, you can cut a bank note in two parts and send each by separate mails." (wayne's circular, feb. , , dreer mss. _loc. cit._) [ ] this list was published in the first edition. it is a good directory of the most prominent federalists and of the leading republican politicians of the time. "t. jefferson, p.u.s." and each member of his cabinet subscribed; marshall himself was a subscriber for his own book, and john c. calhoun, a student at yale college at the time, was another. in the cities most of the lawyers took marshall's book. [ ] wayne to bushrod washington, nov. , , dreer mss. _loc. cit._ it would seem from this letter that marshall and washington had reduced their lump cash price from $ , to $ , . in stating his expenses, wayne says that the painter "gilbert stuart demanded a handsome sum for the privilege of engraving from his original" portrait of washington. [ ] see letter last cited. [ ] wayne to bushrod washington, dec. , , dreer mss. _loc. cit._ [ ] marshall to wayne, dec. , , dreer mss. _loc. cit._ [ ] marshall to wayne, jan. , , dreer mss. _loc. cit._ [ ] marshall to bushrod washington, march , , dreer mss. _loc. cit._ [ ] same to same, april, , dreer mss. _loc. cit._ [ ] same to same, april , , dreer mss. _loc. cit._ [ ] marshall to wayne, june , , dreer mss. _loc. cit._ [ ] same to same, june , , dreer mss. _loc. cit._ [ ] marshall to wayne, june , july , july , , dreer mss. _loc. cit._ [ ] wayne to bushrod washington, aug. , , dreer mss. _loc. cit._ [ ] marshall to wayne, july , , dreer mss. _loc. cit._ [ ] marshall to wayne, aug. , , dreer mss. _loc. cit._ [ ] _literary magazine and american register of philadelphia_, july, . the reviewer makes many of the criticisms that appeared on the completion of the biography. (see _infra_, - .) [ ] wayne to marshall, aug. , , dreer mss. _loc. cit._ [ ] the affair at little meadows and the defeat of braddock. (marshall: _life of george washington_, st ed. i, - , - .) [ ] these were: belknap, belsham, chalmers, dodsley, entick or entinck, gordon, hutchinson, minot, ramsay, raynal, robertson, russell, smith, stedman, stith, trumbull. [ ] for example, marshall's description of sir william berkeley, who was, the reader is informed, "distinguished ... by the mildness of his temper, the gentleness of his manners and ... popular virtues." (marshall, st ed. i, .) [ ] _ib._ - ; and see vol. i, , of this work. [ ] _ib._ st ed. i, - . [ ] _ib._ - . [ ] _ib._; see notes, - . [ ] _ib._ x. [ ] _ib._ st ed. ii, - . [ ] _ib._ . [ ] marshall, st ed. ii, - ; and see vol. i, , of this work. [ ] see vol. i, - , of this work. [ ] marshall, st ed. ii, . [ ] _ib._ - . [ ] _ib._ - . [ ] _ib._ - . [ ] marshall, st ed. ii, . [ ] _ib._ - . [ ] _ib._ - . [ ] _ib._ - , - ; and see vol. i, - , of this work. [ ] marshall, st ed. ii, - . [ ] marshall to wayne, aug. , , dreer mss. _loc. cit._ [ ] marshall to wayne from front royal, virginia, sept. , , dreer mss. _loc. cit._ [ ] marshall spent many years preparing this second edition of his _washington_, which appeared in , three years before marshall's death. see _infra_, - . [ ] marshall to wayne, sept. , , dreer mss. _loc. cit._ [ ] the amount of this draft is not stated. [ ] this would seem to indicate that wayne had been able to collect payment on the first two volumes, from only two thousand five hundred subscribers, since, by the contract, marshall and washington together were to receive one dollar for each book sold. [ ] washington to wayne, dec. , , dreer mss. _loc. cit._ [ ] same to same, jan. , , dreer mss _loc. cit._ [ ] same to same, dec. , , dreer mss. _loc. cit._ [ ] marshall to wayne, feb. , , dreer mss. _loc. cit._ [ ] marshall to wayne, march , , dreer mss. _loc. cit._ [ ] same to same, june , , dreer mss. _loc. cit._ [ ] wayne to washington, july , , dreer mss. _loc. cit._ [ ] marshall to wayne, oct. , , dreer mss. _loc. cit._ [ ] washington to wayne, april , , dreer mss. _loc. cit._ it was in this year that the final payments for the fairfax estate were made and the deed executed to john and james m. marshall and their brother-in-law rawleigh colston. see vol. ii, footnote to , and vol. iv, chap. iii, of this work. [ ] same to same, july , , dreer mss. _loc. cit._ [ ] weems's orders for books are trustworthy first-hand information concerning the literary tastes of the american people at that time, and the extent of education among the wealthy. writing from savannah, georgia, august, , he asks for "rippons hymns, watts d^{o.}, newton's d^{o.}, methodist d^{o.}, davies sermons, massillons d^{o.}, villiage d^{o.}, whitfields d^{o.}, fuller [the eminent baptist divine,] works, viz. his gospel its own evidence, gospel worthy of all acceptation, pilgrim's progress, baxter's s^{ts.} rest, call to the unconverted, alarm, by allein, hervey's works, rushe's medical works; all manner of school books, novels by the cart load, particularly charlotte temple ... or of charlotte temple ... tom paines political works, johnson's poets boun^d in green or in any handsome garb, particularly miltons paradise lost, tompsons seasons, young's n. thoughts wou'd do well." (weems to wayne, aug. , dreer mss. _loc. cit._) another order calls for all the above and also for "websters spell^g book, universal d^{o.}, fullers backslider, booths reign of grace, looking glass for the mind, blossoms of morality, columbian orator, enticks dictionary, murrays grammar, enfield's speaker, best books on surveying, d^{o.} on navigation, misses magazine, vicar of wakefield, robinson crusoe, divine songs for children, pamela small." in this letter forty-four different titles are called for. [ ] weems to wayne, jan. , , and aug. , , dreer mss. _loc. cit._ [ ] same to same, sept. , , wayne mss. _loc. cit._ this letter is written from augusta, georgia. among other books ordered in it, weems names twelve copies each of "sallust, corderius, eutropius, nepos, caesar's commentaries, virgil delph., horace delphini, cicero d^{o.}, ovid d^{o.}"; and nine copies each of "greek grammar, d^{o.} testament, lucian, xenophon." [ ] marshall, iii, - . [ ] see vol. i, - , , of this work. [ ] marshall, iii, chaps. iii and iv. [ ] see vol. i, - , of this work. [ ] marshall, iii, - , . [ ] _ib._ , , - ; and see vol. i, - , of this work. [ ] marshall, iii, , - . [ ] _ib._ - , . [ ] marshall, iii, . "no species of licentiousness was unpracticed. the plunder and destruction of property was among the least offensive of the injuries sustained." the result "could not fail to equal the most sanguine hopes of the friends of the revolution. a sense of personal wrongs produced a temper, which national considerations had been found too weak to excite.... the great body of the people flew to arms." [ ] _ib._ , , , , . see also vol. i, - , of this work, and authorities there cited. [ ] marshall, iii, - . [ ] _ib._ notes, - . [ ] _ib._ chap. ; and see vol. i, - , of this work. [ ] marshall, iii, - . [ ] _ib._ - . [ ] see vol. ii, , of this work. [ ] marshall, iv, - . [ ] _ib._ . [ ] _ib._ - ; see vol. i, - , of this work. [ ] marshall, iv, - . [ ] marshall, iv, - . [ ] see jefferson's letter to barlow, _supra_. [ ] see _supra_, chap. iii, and _infra_, chap. vi; and see especially vol. iv, chap. i, of this work. [ ] adams to marshall, july , , ms. this letter is most important. adams pictures his situation when president: "a first magistrate of a great republick with a general officer under him, a commander in chief of the army, who had ten thousand times as much influence popularity and power as himself, and that commander in chief so much under the influence of his second in command [hamilton], ... the most treacherous, malicious, insolent and revengeful enemy of the first magistrate is a picture which may be very delicate and dangerous to draw. but it must be drawn.... "there is one fact ... which it will be difficult for posterity to believe, and that is that the measures taken by senators, members of the house, some of the heads of departments, and some officers of the army to force me to appoint general washington ... proceeded not from any regard to him ... but merely from an intention to employ him as an engine to elevate hamilton to the head of affairs civil as well as military." [ ] he was "accustomed to contemplate america as his country, and to consider ... the interests of the whole." (marshall, v, .) [ ] _ib._ - . [ ] _ib._ - . [ ] _ib._ - . [ ] _ib._ - . [ ] marshall, v, . [ ] _ib._ - . [ ] marshall, v, - . [ ] _ib._ - . [ ] marshall, v, . marshall's account of the causes and objects of shays's rebellion is given wholly from the ultra-conservative view of that important event. (_ib._ .) [ ] _ib._ - . [ ] _ib._ . [ ] _ib._ - . [ ] marshall, v, - . thus marshall, writing in , states one of the central principles of the constitution as he interpreted it from the bench years later in three of the most important of american judicial opinions--fletcher _vs._ peck, sturgis _vs._ crowninshield, and the dartmouth college case. (see _infra_, chap. x; also vol. iv, chaps. iv and v, of this work.) [ ] marshall, v, - . [ ] _ib._ - . at this point marshall is conspicuously, almost ostentatiously impartial, as between jefferson and hamilton. his description of the great radical is in terms of praise, almost laudation; the same is true of his analysis of hamilton's work and character. but he gives free play to his admiration of john adams. (_ib._ - .) [ ] _ib._ - . [ ] marshall, v, . [ ] _ib._ - . [ ] _ib._ . [ ] "that system to which the american government afterwards inflexibly adhered, and to which much of the national prosperity is to be ascribed." (_ib._ .) [ ] see vol. ii, chaps. i to iv, of this work. [ ] marshall, v, - . [ ] _ib._ . [ ] james kent to moss kent, july , , kent mss. lib. cong. [ ] jefferson to barlow, april , , _works_: ford, xi, . [ ] jefferson to adams, june , , _ib._ . [ ] botta: _history of the war of the independence of the united states of america_. this work, published in italian in , was not translated into english until ; but in - a french edition was brought out, and that is probably the one jefferson had read. [ ] jefferson to adams, aug. , , _works_: ford, xi, . [ ] johnson: _sketches of the life and correspondence of general nathanael greene_. this biography was even a greater failure than marshall's _washington_. during this period literary ventures by judges seem to have been doomed. [ ] jefferson to johnson, march , , _works_: ford, xii, - . [ ] _works_: ford, i, - . [ ] _ib._ - . [ ] plumer, march , , "diary," plumer mss. lib. cong. [ ] may, june, and august numbers, , _monthly anthology and boston review_, v, , , . it appears from the minutes of the anthology society, publishers of this periodical, that they had a hard time in finding a person willing to review marshall's five volumes. three persons were asked to write the critique and declined. finally, mr. thatcher reluctantly agreed to do the work. [ ] flint, in london _athenæum_ for , . [ ] _north american review_, xlvi, . [ ] _new york evening post_, as quoted in allibone: _dictionary of english literature and british and american authors_, ii, . [ ] _edinburgh review_, oct. , as quoted in randall, ii, footnote to . [ ] _blackwood's edinburgh magazine_, xvii, . [ ] marshall to eliot, sept. , , mss. of the mass. hist. soc. [ ] marshall to murphey, oct. , , _papers of archibald d. murphey_: hoyt, i, - . [ ] washington to wayne, nov. , , dreer mss. _loc. cit._ [ ] marshall to washington, dec. , , ms. [ ] so popular did this second edition become that, three years after marshall's death, a little volume, _the life of washington_, was published for school-children. the publisher, james crissy of philadelphia, states that this small volume is "printed from the author's own manuscript," thus intimating that marshall had prepared it. (see marshall, school ed.) [ ] talbot _vs._ seeman, united states _vs._ schooner peggy, marbury _vs._ madison, and little _vs._ barreme. [ ] the first three in above note. chapter vi the burr conspiracy my views are such as every man of honor and every good citizen must approve. (aaron burr.) his guilt is placed beyond question. (jefferson.) i never believed him to be a fool. but he must be an idiot or a lunatic if he has really planned and attempted to execute such a project as is imputed to him. but if his guilt is as clear as the noonday sun, the first magistrate ought not to have pronounced it so before a jury had tryed him. (john adams.) on march , , not long after the hour of noon, every senator of the united states was in his seat in the senate chamber. all of them were emotionally affected--some were weeping.[ ] aaron burr had just finished his brief extemporaneous address[ ] of farewell. he had spoken with that grave earnestness so characteristic of him.[ ] his remarks produced a curious impression upon the seasoned politicians and statesmen, over whose deliberations he had presided for four years. the explanation is found in burr's personality quite as much as in the substance of his speech. from the unprecedented scene in the senate chamber when the vice-president closed, a stranger would have judged that this gifted personage held in his hands the certainty of a great and brilliant career. yet from the moment he left the capital, aaron burr marched steadily toward his doom. an understanding of the trial of aaron burr and of the proceedings against his agents, bollmann and swartwout, is impossible without a knowledge of the events that led up to them; while the opinions and rulings of chief justice marshall in those memorable controversies are robbed of their color and much of their meaning when considered apart from the picturesque circumstances that produced them. this chapter, therefore, is an attempt to narrate and condense the facts of the burr conspiracy in the light of present knowledge of them. although in a biography of john marshall it seems a far cry to give so much space to that episode, the import of the greatest criminal trial in american history is not to be fully grasped without a summary of the events preceding it. moreover, the fact that in the burr trial marshall destroyed the law of "constructive treason" requires that the circumstances of the burr adventure, as they appeared to marshall, be here set forth. a strong, brave man who, until then, had served his country well, aaron burr was in desperate plight when on the afternoon of march he walked along the muddy washington streets toward his lodging. he was a ruined man, financially, politically, and in reputation. fourteen years of politics had destroyed his once extensive law practice and plunged him hopelessly into debt. the very men whose political victory he had secured had combined to drive him from the republican party. the result of his encounter with hamilton had been as fatal to his standing with the federalists, who had but recently fawned upon him, as it was to the physical being of his antagonist. what now followed was as if aaron burr had been the predestined victim of some sinister astrology, so utterly did the destruction of his fortunes appear to be the purpose of a malign fate. his fine ancestry now counted for nothing with the reigning politicians of either party. none of them cared that he came of a family which, on both sides, was among the worthiest in all the country.[ ] his superb education went for naught. his brilliant services as one of the youngest revolutionary officers were no longer considered--his heroism at quebec, his resourcefulness on putnam's staff, his valor at monmouth, his daring and tireless efficiency at west point and on the westchester lines, were, to these men, as if no such record had ever been written. [illustration: aaron burr] nor, with those then in power, did burr's notable public services in civil life weigh so much as a feather in his behalf. they no longer remembered that only a few years earlier he had been the leader of his party in the national senate, and that his appointment to the then critically important post of minister to france had been urged by the unanimous caucus of his political associates in congress. none of the notable honors that admirers had asserted to be his due, nor yet his effective work for his party, were now recalled. the years of provocation[ ] which had led, in an age of dueling,[ ] to a challenge of his remorseless personal, professional, and political enemy were now unconsidered in the hue and cry raised when his shot, instead of that of his foe, proved mortal. yet his spirit was not broken. his personal friends stood true; his strange charm was as potent as ever over most of those whom he met face to face; and throughout the country there were thousands who still admired and believed in aaron burr. particularly in the west and in the south the general sentiment was cordial to him; many western senators were strongly attached to him; and most of his brother officers of the revolution who had settled beyond the alleghanies were his friends.[ ] also, he was still in vigorous middle life, and though delicate of frame and slight of stature, was capable of greater physical exertion than most men of fewer years. what now should the dethroned political leader do? events answered that question for him, and, beckoned forward by an untimely ambition, he followed the path that ended amid dramatic scenes in richmond, virginia, where john marshall presided over the circuit court of the united states. although at the time jefferson had praised what he called burr's "honorable and decisive conduct"[ ] during the presidential contest in the house in february of , he had never forgiven his associate for having received the votes of the federalists, nor for having missed, by the merest chance, election as chief magistrate.[ ] notwithstanding that burr's course as vice-president had won the admiration even of enemies,[ ] his political fall was decreed from the moment he cast his vote on the judiciary bill in disregard of the rigid party discipline that jefferson and the republican leaders then exacted.[ ] even before this, the constantly increasing frigidity of the president toward him, and the refusal of the administration to recognize by appointment any one recommended by him for office in new york,[ ] had made it plain to all that the most burr could expect was jefferson's passive hostility. under these circumstances, and soon after his judiciary vote, the spirited vice-president committed another imprudence. he attended a banquet given by the federalists in honor of washington's birthday. there he proposed this impolitic toast: "to the union of all honest men." everybody considered this a blow at jefferson. it was even more offensive to the administration than his judiciary vote had been.[ ] from that moment all those peculiar weapons which politicians so well know how to use for the ruin of an opponent were employed for the destruction of aaron burr. moreover, jefferson had decided not only that burr should not again be vice-president, but that his bitterest enemy from his own state, george clinton, should be the republican candidate for that office; and, in view of burr's strength and resourcefulness, this made necessary the latter's political annihilation.[ ] "never in the history of the united states did so powerful a combination of rival politicians unite to break down a single man as that which arrayed itself against burr."[ ] nevertheless, burr, who "was not a vindictive man,"[ ] did not retaliate for a long time.[ ] but at last to retrieve himself,[ ] he determined to appeal to the people--at whose hands he had never suffered defeat--and, in , he became a candidate for the office of governor of new york. the new york federalists, now reduced to a little more than a strong faction, wished to support him, and were urged to do so by many federalist leaders of other states. undoubtedly burr would have been elected but for the attacks of hamilton. at this period the idea of secession was stirring in the minds of the new england federalist leaders. such men as timothy pickering, roger griswold, uriah tracy, and james hillhouse had even avowed separation from the union to be desirable and certain; and talk of it was general.[ ] all these men were warm and insistent in their support of burr for governor, and at least two of them, pickering and griswold, had a conference with him in new york while the campaign was in progress. plumer notes in his diary that during the winter of , at a dinner given in washington attended by himself, pickering, hillhouse, burr, and other public men, hillhouse "unequivocally declared that ... the united states would soon form two distinct and separate governments."[ ] more than nine months before, certain of the most distinguished new england federalists had gone to the extreme length of laying their object of national dismemberment before the british minister, anthony merry, and had asked and received his promise to aid them in their project of secession.[ ] there was nothing new in the idea of dismembering the union. indeed, no one subject was more familiar to all parts of the country. since before the adoption of the constitution, it had been rife in the settlements west of the alleghanies.[ ] the very year the national government was organized under the constitution, the settlers beyond the alleghanies were much inclined to withdraw from the union because the mississippi river had not been secured to them.[ ] for many years this disunion sentiment grew in strength. when, however, the louisiana purchase gave the pioneers on the ohio and the mississippi a free water-way to the gulf and the markets of the world, the western secessionist tendency disappeared. but after the happy accident that bestowed upon us most of the great west as well as the mouth of the mississippi, there was in the eastern states a widely accepted opinion that this very fact made necessary the partitioning of the republic. even jefferson, as late as , did not think that outcome unlikely, and he was prepared to accept it with his blessing: "if they see their interest in separation, why should we take sides with our atlantic rather than our mississippi descendants? it is the elder and the younger brother differing. god bless them both, and keep them in union, if it be for their good, but separate them, if it be better."[ ] neither spain nor great britain had ever given over the hope of dividing the young republic and of acquiring for themselves portions of its territory. the spanish especially had been active and unceasing in their intrigues to this end, their efforts being directed, of course, to the acquisition of the lands adjacent to them and bordering on the mississippi and the ohio.[ ] in this work more than one american was in their pay. chief of these spanish agents was james wilkinson, who had been a pensioner of spain from ,[ ] and so continued until at least , the bribe money coming into his hands for several years after he had been placed in command of the armies of the united states.[ ] none of these plots influenced the pioneers to wish to become spanish subjects; the most that they ever desired, even at the height of their dissatisfaction with the american government, was independence from what they felt to be the domination of the east. in this feeling reached its climax in the kentucky secession movement, one of its most active leaders being wilkinson, who declared his purpose of becoming "the washington of the west."[ ] by , however, the allegiance of the pioneers to the nation was as firm as that of any other part of the republic. they had become exasperated to the point of violence against spanish officials, spanish soldiers, and the spanish government. they regarded the spanish provinces of the floridas and of mexico as mere satrapies of a hated foreign autocracy; and this indeed was the case. everywhere west of the alleghanies the feeling was universal that these lands on the south and southwest, held in subjection by an ancient despotism, should be "revolutionized" and "liberated"; and this feeling was shared by great numbers of people of the eastern states. moreover, that spirit of expansion--of taking and occupying the unused and misused lands upon our borders--which has been so marked through american history, was then burning fiercely in every western breast. the depredations of the spaniards had finally lashed almost to a frenzy the resentment which had for years been increasing in the states bordering upon the mississippi. all were anxious to descend with fire and sword upon the offending spaniards. indeed, all over the nation the conviction was strong that war with spain was inevitable. even the ultra-pacific jefferson was driven to this conclusion; and, in less than ten months after aaron burr ceased to be vice-president, and while he was making his first journey through the west and southwest, the president, in two messages to congress, scathingly arraigned spanish misdeeds and all but avowed that a state of war actually existed.[ ] such, in broad outline, was the general state of things when aaron burr, his political and personal fortunes wrecked, cast about for a place to go and for work to do. he could not return to his practice in new york; there his enemies were in absolute control and he was under indictment for having challenged hamilton. the coroner's jury also returned an inquest of murder against burr and two of his friends, and warrants for their arrest were issued. in new jersey, too, an indictment for murder hung over him.[ ] only in the fresh and undeveloped west did a new life and a new career seem possible. many projects filled his mind--everything was possible in that inviting region beyond the mountains. he thought of forming a company to dig a canal around the falls of the ohio and to build a bridge over that river, connecting louisville with the indiana shore. he considered settling lands in the vast dominions beyond the mississippi which the nation had newly acquired from spain. a return to public life as representative in congress from tennessee passed through his mind. but one plan in particular fitted the situation which the apparently certain war with spain created. nearly ten years earlier,[ ] hamilton had conceived the idea of the conquest of the spanish possessions adjacent to us, and he had sought to enlist the government in support of the project of miranda to revolutionize venezuela.[ ] aaron burr had proposed the invasion and capture of the floridas, louisiana, and mexico two years before hamilton embraced the project,[ ] and the desire to carry out the plan continued strong within him. circumstances seemed to make the accomplishment of it feasible. at all events, a journey through the west would enlighten him, as well as make clearer the practicability of his other schemes. now occurred the most unfortunate and disgraceful incident of burr's life. in order to get money for his mexican adventure, burr played upon the british minister's hostile feelings toward america and, in doing so, used downright falsehood. although it was unknown at the time and not out of keeping with the unwritten rules of the game called diplomacy as then played, and although it had no effect upon the thrilling events that brought burr before marshall, so inextricably has this shameful circumstance been woven into the story of the burr conspiracy, that mention of it must be made. it was the first thoroughly dishonorable act of burr's tempestuous career.[ ] five months after pickering, griswold, and other new england federalists had approached anthony merry with their plan to divide the union, burr prepared to follow their example. he first sounded that diplomat through a british officer, one colonel charles williamson. the object of the new england senators and representatives had been to separate their own and other northern states from the union; the proposition that williamson now made to the british minister was that burr might do the same thing for the western states.[ ] it was well known that the break-up of the republic was expected and hoped for by the british government, as well as by the spaniards, and williamson was not surprised when he found merry as favorably disposed toward a scheme for separation of the states beyond the alleghanies as he had been hospitable to the plan for the secession of new england. of the results of this conference burr was advised; and when he had finished his preparations for his journey down the ohio, he personally called upon merry. this time a part of his real purpose was revealed; it was to secure funds.[ ] burr asked that half a million dollars be supplied him[ ] for the revolutionizing of the western states, but he did not tell of his dream about mexico, for the realization of which the money was probably to be employed. in short, burr lied; and in order to persuade merry to secure for him financial aid he proposed to commit treason. henry adams declares that, so far as the proposal of treason was concerned, there was no difference between the moral delinquency of pickering, griswold, hillhouse, and other federalists and that of aaron burr.[ ] the eager and credulous british diplomat promised to do his best and sent colonel williamson on a special mission to london to induce pitt's ministry to make the investment.[ ] it should be repeated that burr's consultations with the shallow and easily deceived merry were not known at the time. indeed, they never were fully revealed until more than three quarters of a century afterward.[ ] moreover, it has been demonstrated that they had little or no bearing upon the adventure which burr finally tried to carry out.[ ] he was, as has been said, audaciously and dishonestly playing upon merry's well-known hostility to this country in order to extract money from the british treasury.[ ] this attempt and the later one upon the spanish minister, who was equally antagonistic to the united states, were revolting exhibitions of that base cunning and duplicity which, at that period, formed so large a part of secret international intrigue.[ ] on april , , burr left philadelphia on horseback for pittsburgh, where he arrived after a nineteen days' journey. before starting he had talked over his plans with several friends, among them former senator jonathan dayton of new jersey, who thereafter was a partner and fellow "conspirator."[ ] another man with whom burr had conferred was general james wilkinson. burr expected to meet him at pittsburgh, but the general was delayed and the meeting was deferred. wilkinson had just been appointed governor of upper louisiana--one of the favors granted burr during the chase impeachment--and was the intimate associate of the fallen politician in his mexican plan until, in a welter of falsehood and corruption, he betrayed him. indeed, it was wilkinson who, during the winter of - , when burr was considering his future, proposed to him the invasion of mexico and thus gave new life to burr's old but never abandoned hope.[ ] [illustration] on may , burr started down the ohio. when he reached marietta, ohio, he was heartily welcomed. he next stopped at an island owned by harman blennerhassett, who happened to be away. while inspecting the grounds burr was invited by mrs. blennerhassett to remain for dinner. thus did chance lay the foundations for that acquaintance which, later, led to a partnership in the enterprise that was ended so disastrously for both. at cincinnati, then a town of some fifteen hundred inhabitants, the attentions of the leading citizens were markedly cordial. there burr was the guest of john smith, then a senator from ohio, who had become attached to burr while the latter was vice-president, and who was now one of his associates in the plans under consideration. at smith's house he met dayton, and with these friends and partners he held a long conversation on the various schemes they were developing.[ ] a week later found him at the "unhealthy and inconsiderable village"[ ] of louisville and from there he traveled by horseback to frankfort and lexington. while in kentucky he conferred with general john adair, then a member of the national senate, who, like smith and dayton, had in washington formed a strong friendship for burr, and was his confidant.[ ] another eminent man with whom he consulted was john brown, then a member of the united states senate from kentucky, also an admirer of burr. it would appear that the wanderer was then seriously considering the proposal, previously made by matthew lyon, now a representative in congress from kentucky, that burr should try to go to the national house from tennessee,[ ] for burr asked and received from senator brown letters to friends in that state who could help to accomplish that design. but not one word did burr speak to general adair, to senator brown, or to any one else of his purpose to dismember the nation. burr arrived at nashville at the end of the month. the popular greeting had grown warmer with each stage of his journey, and at the tennessee capital it rose to noisy enthusiasm. andrew jackson, then major-general of the state militia, was especially fervent and entertained burr at his great log house. a "magnificent parade" was organized in his honor. from miles around the pioneers thronged into the frontier capital. flags waved, fifes shrilled, drums rolled, cannon thundered. a great feast was spread and burr addressed the picturesque gathering.[ ] never in the brightest days of his political success had he been so acclaimed. jackson, nine years before, when pleading with congress to admit tennessee into the union, had met and liked burr, who had then advocated statehood for that vigorous and aggressive southern territory. jackson's gratitude for burr's services to the state in championing its admission,[ ] together with his admiration for the man, now ripened into an ardent friendship. his support of burr well reflected that of the people among whom the latter now found himself. accounts of burr's conduct as presiding officer at the trial of chase had crept through the wilderness; the frontier newspapers were just printing burr's farewell speech to the senate, and descriptions of the effect of it upon the great men in washington were passing from tongue to tongue. all this gilded the story of burr's encounter with hamilton, which, from the beginning, had been applauded by the people of the west and south. burr was now in a land of fighting men, where dueling was considered a matter of honor rather than disgrace. he was in a rugged democracy which regarded as a badge of distinction, instead of shame, the killing in fair fight of the man it had been taught to believe to be democracy's greatest foe. here, said these sturdy frontiersmen, was the captain so long sought for, who could lead them in the winning of texas and mexico for america; and this burr now declared himself ready to do--a purpose which added the final influence toward the conquest of the mind and heart of andrew jackson. floating down the cumberland river in a boat provided by jackson, burr encountered nothing but friendliness and encouragement. at fort massac he was the guest of wilkinson, with whom he remained for four days, talking over the mexican project. soon afterward he was on his way down the mississippi from st. louis in a larger boat with colored sails, manned by six soldiers--all furnished by wilkinson. after burr's departure wilkinson wrote to adair, with whom he had served in the indian wars, that "we must have a peep at the unknown world beyond me." on june , , burr landed at new orleans, then the largest city west of the alleghanies. there the ovation to the "hero" surpassed even the demonstration at nashville. again came dinners, balls, fêtes, and every form of public and private favor. so perfervid was the welcome to him that the sisters of the largest nunnery in louisiana invited burr to visit their convent, and this he did, under the conduct of the bishop.[ ] wilkinson had given him a letter of introduction to daniel clark, the leading merchant of the city and the most influential man in louisiana. the letter contained this cryptic sentence: "to him [burr] i refer you for many things improper to letter, and which he will not say to any other."[ ] the notables of the city were eager to befriend burr and to enter into his plans. among them were john watkins, mayor of new orleans, and james workman, judge of the court of orleans county. these men were also the leading members of the mexican association, a body of three hundred americans devoted to effecting the "liberation" of mexico--a design in which they accurately expressed the general sentiment of louisiana. the invasion of mexico had become burr's overmastering purpose, and it gathered strength the farther he journeyed among the people of the west and south. to effect it, definite plans were now made.[ ] the catholic authorities of new orleans approved burr's project, and appointed three priests to act as agents for the revolutionists in mexico.[ ] burr's vision of spanish conquest seemed likely of realization. the invasion of mexico was in every heart, on every tongue. all that was yet lacking to make it certain was war between spain and the united states, and every western or southern man believed that war was at hand. late in july, burr, with justifiably high hope, left new orleans by the overland route for nashville, riding on horses supplied by daniel clark. everywhere he found the pioneers eager for hostilities. at natchez the people were demonstrative. by august , burr was again with andrew jackson, having ridden over indian trails four hundred and fifty miles through the swampy wilderness.[ ] the citizens of nashville surpassed even their first welcome. at the largest public dinner ever given in the west up to that time, burr entered the hall on jackson's arm and was received with cheers. men and women vied with one another in doing him honor. the news burr brought from new orleans of the headway that was being made regarding the projected descent upon the spanish possessions, thrilled jackson; and his devotion to the man whom all westerners and southerners had now come to look upon as their leader knew no bounds.[ ] for days jackson and burr talked of the war with spain which the bellicose tennessee militia general passionately desired, and of the invasion of mexico which burr would lead when hostilities began.[ ] at lexington, at frankfort, everywhere, burr was received in similar fashion. while in kentucky he met henry clay, who at once yielded to his fascination. but soon strange, dark rumors, starting from natchez, were sent flying over the route burr had just traveled with such acclaim. they were set on foot by an american, one stephen minor, who was a paid spy of spain.[ ] burr, it was said, was about to raise the standard of revolution in the western and southern states. daniel clark wished to advise burr of these reports and of the origin of them, but did not know where to reach him. so he hastened to write wilkinson that burr might be informed of the spanish canard: "kentucky, tennessee, the state of ohio, ... with part of georgia and carolina, are to be bribed with the plunder of the spanish countries west of us, to separate from the union." and clark added: "amuse mr. burr with an account of it."[ ] wilkinson himself had long contemplated the idea of dismembering the nation; he had even sounded some of his officers upon that subject.[ ] as we have seen, he had been the leader of the secession movement in kentucky in . but if burr ever really considered, as a practical matter, the separation of the western country from the union, his intimate contact with the people of that region had driven such a scheme from his mind and had renewed and strengthened his long-cherished wish to invade mexico. for throughout his travels he had heard loud demands for the expulsion of spanish rule from america; but never, except perhaps at new orleans, a hint of secession. and if, during his journey, burr so much as intimated to anybody the dismemberment of the republic, no evidence of it ever has been produced.[ ] ignorant of the sinister reports now on their way behind him, burr reached the little frontier town of st. louis early in september and again conferred with wilkinson, assuring him that the whole south and west were impatient to attack the spaniards, and that in a short time an army could be raised to invade mexico.[ ] according to the story which the general told nearly two years afterward, burr informed him that the south and west were ripe for secession, and that wilkinson responded that burr was sadly mistaken because "the western people ... are bigoted to jefferson and democracy."[ ] whatever the truth of this may be, it is certain that the rumors put forth by his fellow spanish agent had shaken wilkinson's nerve for proceeding further with the enterprise which he himself had suggested to burr. also, as we shall see, the avaricious general had begun to doubt the financial wisdom of giving up his profitable connection with the spanish government. at all events, he there and then began to lay plans to desert his associate. accordingly, he gave burr a letter of introduction to william henry harrison, governor of indiana territory, in which he urged harrison to have burr sent to congress from indiana, since upon this "perhaps ... the union may much depend."[ ] mythical accounts of burr's doings and intentions had now sprung up in the east. the universally known wish of new england federalist leaders for a division of the country, the common talk east of the alleghanies that this was inevitable, the vivid memory of a like sentiment formerly prevailing in kentucky, and the belief in the seaboard states that it still continued--all rendered probable, to those, living in that section, the schemes now attributed to burr. of these tales the eastern newspapers made sensations. a separate government, they said, was to be set up by burr in the western states; the public lands were to be taken over and divided among burr's followers; bounties, in the form of broad acres, were to be offered as inducements for young men to leave the atlantic section of the country for the land of promise toward the sunset; burr's new government was to repudiate its share of the public debt; with the aid of british ships and gold burr was to conquer mexico and establish a vast empire by uniting that imperial domain to the revolutionized western and southern states.[ ] the western press truthfully denied that any secession sentiment now existed among the pioneers. the rumors from the south and west met those from the north and east midway; but burr having departed for washington, they subsided for the time being. the brushwood, however, had been gathered--to burst into a raging conflagration a year later, when lighted by the torch of executive authority in the hands of thomas jefferson. during these months the spanish officials in mexico and in the floridas, who had long known of the hostility of american feeling toward them, learned of burr's plan to seize the spanish possessions, and magnified the accounts they received of the preparations he was making.[ ] the british minister in washington was also in spasms of nervous anxiety.[ ] when burr reached the capital he at once called on that slow-witted diplomat and repeated his overtures. but pitt had died; the prospect of british financial assistance had ended;[ ] and burr sent dayton to the spanish minister with a weird tale[ ] in order to induce that diplomat to furnish money. almost at the same time the south american adventurer, miranda, again arrived in america, his zeal more fiery than ever, for the "liberation" of venezuela. he was welcomed by the administration, and secretary of state madison gave him a dinner. jefferson himself invited the revolutionist to dine at the executive mansion. burr's hopes were strengthened, since he intended doing in mexico precisely what miranda was setting out to do in venezuela. in february, , miranda sailed from new york upon his venezuelan undertaking. his openly avowed purpose of forcibly expelling the spanish government from that country had been explained to jefferson and madison by the revolutionist personally. before his departure, the spanish filibuster wrote to madison, cautioning him to keep "in the deepest secret" the "important matters" which he (miranda) had laid before him.[ ] the object of his expedition was a matter of public notoriety. in new york, in the full light of day, he had bought arms and provisions and had enlisted men for his enterprise. excepting for burr's failure to secure funds from the british government, events seemed propitious for the execution of his grand design. he had written to blennerhassett a polite and suggestive letter, not inviting him, however, to engage in the adventure;[ ] the eager irishman promptly responded, begging to be admitted as a partner in burr's enterprises, and pledging the services of himself and his friends.[ ] burr, to his surprise, was cordially received by jefferson at the white house where he had a private conference of two hours with the president. the west openly demanded war with spain; the whole country was aroused; in the house, randolph offered a resolution to declare hostilities; everywhere the president was denounced for weakness and delay.[ ] if only jefferson would act--if only the people's earnest desire for war with spain were granted--burr could go forward. but the president would make no hostile move--instead, he proposed to buy the floridas. burr, lacking funds, thought for a moment of abandoning his plans against mexico, and actually asked jefferson for a diplomatic appointment, which was, of course, refused.[ ] the rumor had reached spain that the americans had actually begun war. on the other hand, the report now came to washington that the spaniards had invaded american soil. the secretary of war ordered general wilkinson to drive the spaniards back. the demand for war throughout the country grew louder. if ever burr's plan of mexican conquest was to be carried out, the moment had come to strike the blow. his confederate, wilkinson, in command of the american army and in direct contact with the spaniards, had only to act. the swirl of intrigue continued. burr tried to get the support of men disaffected toward the administration. among them were commodore truxtun, commodore stephen decatur, and "general"[ ] william eaton. truxtun and decatur were writhing under that shameful treatment by which each of these heroes had been separated, in effect removed, from the navy. eaton was cursing the administration for deserting him in his african exploits, and even more for refusing to pay several thousand dollars which he claimed to have expended in his barbary transactions.[ ] truxtun and burr were intimate friends, and the commodore was fully told of the design to invade mexico in the event of war with spain; should that not come to pass, burr advised truxtun that he meant to settle lands he had arranged to purchase beyond the mississippi. he tried to induce truxtun to join him, suggesting that he would be put in command of a naval force to capture havana, vera cruz, and cartagena. when burr "positively" informed him that the president was not a party to his enterprise, truxtun declined to associate himself with it. not an intimation did burr give truxtun of any purpose hostile to the united states. the two agreed in their contemptuous opinion of jefferson and his administration.[ ] to commodore decatur, burr talked in similar fashion, using substantially the same language. but to "general" eaton, whom he had never before met, burr unfolded plans more far-reaching and bloody, according to the barbary hero's account of the revelations.[ ] at first burr had made to eaton the same statements he had detailed to truxtun and decatur, with the notable difference that he had assured eaton that the proposed expedition was "under the authority of the general government." notwithstanding his familiarity with intrigue, the suddenly guileless eaton agreed to lead a division of the invading army under wilkinson who, burr assured him, would be "chief in command." but after a while eaton's sleeping perception was aroused. becoming as sly as a detective, he resolved to "draw burr out," and "listened with seeming acquiescence" while the villain "unveiled himself" by confidences which grew ever wilder and more irrational: burr would establish an empire in mexico and divide the union; he even "meditated overthrowing the present government"--if he could secure truxtun, decatur, and others, he "_would turn congress neck and heels out of doors, assassinate the president, seize the treasury and navy; and declare himself the protector of an energetic government_." eaton at last was "shocked" and "dropped the mask," declaring that the one word, "_usurper_, would destroy" burr. thereupon eaton went to jefferson and urged the president to appoint burr american minister to some european government and thus get him out of the country, declaring that "_if burr were not in some way disposed of we should within eighteen months have an insurrection if not a revolution on the waters of the mississippi_." the president was not perturbed--he had too much confidence in the western people, he said, "to admit an _apprehension_ of that kind." but of the horrid details of the murderous and treasonable villain's plans, never a word said eaton to jefferson.[ ] however, the african hero did "detail the whole projects of mr. burr" to certain members of congress.[ ] "they believed col. burr capable of anything--and agreed that _the fellow ought to be hanged_"; but they refused to be alarmed--burr's schemes were "too chimerical and his circumstances too desperate to ... merit of serious consideration."[ ] so for twelve long months eaton said nothing more about burr's proposed deviltry. during this time he continued alternately to belabor congress and the administration for the payment of the expenses of his barbary exploits.[ ] andrew jackson, while entertaining burr on his first western journey, had become the most promising, in practical support, of all who avowed themselves ready to follow burr's invading standard into mexico; and with jackson he had freely consulted about that adventure. from washington, burr now wrote the tennessee leader of the beclouding of their mutually cherished prospects of war with spain. but hope of war was not dead, wrote burr--indeed, miranda's armed expedition "composed of american citizens, and openly fitted out in an american port," made it probable. jackson ought to be attending to something more than his militia offices, burr admonished him: "your country is full of fine materials for an army, and i have often said a brigade could be raised in west tennessee which would drive double their number of frenchmen off the earth." from such men let jackson make out and send to burr "a list of officers from colonel down to ensign for one or two regiments, composed of fellows fit for business, and with whom you would trust your life and your honor." burr himself would, "in case troops should be called for, recommend it to the department of war"; he had "reason to believe that on such an occasion" that department would listen to his advice.[ ] at last burr, oblivious to the danger that eaton might disclose the deadly secrets which he had so imprudently confided to a dissipated stranger, resolved to act and set out on his fateful journey. before doing so, he sent two copies of a cipher letter to wilkinson. this was in answer to a letter which burr had just received from wilkinson, dated may , , the contents of which never have been revealed. burr chose, as the messenger to carry overland one of the copies, samuel swartwout, a youth then twenty-two years of age, and brother of colonel john swartwout whom jefferson had removed from the office of united states marshal for the district of new york largely because of the colonel's lifelong friendship for burr. the other copy was sent by sea to new orleans by dr. justus erich bollmann.[ ] no thought had burr that wilkinson, his ancient army friend and the arch conspirator of the whole plot, would reveal his dispatch. he and wilkinson were united too deeply in the adventure for that to be thinkable. moreover, the imminence of war appeared to make it certain that when the general received burr's cipher, the two men would be comrades in arms against spain in a war which, it cannot be too often repeated, it was believed wilkinson could bring on at any moment. nevertheless, burr and dayton had misgivings that the timorous general might not attack the spaniards. they bolstered him up by hopeful letters, appealing to his cupidity, his ambition, his vanity, his fear. dayton wrote that jefferson was about to displace him and appoint another head of the army; let wilkinson, therefore, precipitate hostilities--"you know the rest.... are you ready? are your numerous associates ready? wealth and glory! louisiana and mexico!"[ ] in his cipher dispatch to wilkinson, burr went to even greater lengths and with reason, for the impatient general had written him another letter, urging him to hurry: "i fancy miranda has taken the bread out of your mouth; and i shall be ready for the grand expedition before you are."[ ] burr then assured wilkinson that he was not only ready but on his way, and tried to strengthen the resolution of the shifty general by falsehood. he told of tremendous aid secured in far-off washington and new york, and intimated that england would help. he was coming himself with money and men, and details were given. bombastic sentences--entirely unlike any language appearing in burr's voluminous correspondence and papers--were well chosen for their effect on wilkinson's vainglorious mind: "the gods invite us to glory and fortune; it remains to be seen whether we deserve the boon.... burr guarantees the result with his life and honor, with the lives and honor and the fortunes of hundreds, the best blood of our country."[ ] fatal error! the sending of that dispatch was to give wilkinson his opportunity to save himself by assuming the disguise of patriotism and of fealty to jefferson, and, clad in these habiliments, to denounce his associates in the mexican adventure as traitors to america. soon, very soon, wilkinson was to use burr's letter in a fashion to bring his friend and many honest men to the very edge of execution--a fate from which only the fearlessness and penetrating mind of john marshall was to save them. but this black future burr could not foresee. certain, as were most men, that war with spain could not be delayed much longer, and knowing that wilkinson could precipitate it at any moment, burr's mind was at rest. at the beginning of august, , he once more journeyed down the ohio. on the way he stopped at a settlement on the monongahela, not far from pittsburgh, where he visited one colonel george morgan. this man afterward declared that burr talked mysteriously--the administration was contemptible, two hundred men could drive the government into the potomac, five hundred could take new york; and, burr added laughingly, even the western states could be detached from the union. most of this was said "in the presence of a considerable company."[ ] the elder morgan, who was aged and garrulous,[ ] pieced together his inferences from burr's meaning looks, jocular innuendoes, and mysterious statements,[ ] and detected a purpose to divide the nation. deeply moved, he laid his deductions before the chief justice of pennsylvania and two other gentlemen from pittsburgh, a town close at hand; and a letter was written to jefferson, advising him of the threatened danger.[ ] from pittsburgh, burr for the second time landed on the island of harman blennerhassett, who was eager for any adventure that would restore his declining fortunes. if war with spain should, after all, not come to pass, burr's other plan was the purchase of the enormous bastrop land grant on the washita river. blennerhassett avidly seized upon both projects.[ ] from that moment forward, the settlement of this rich and extensive domain in the then untouched and almost unexplored west became the alternative purpose of aaron burr in case the desire of his heart, the seizure of mexico, should fail.[ ] unfortunately blennerhassett who, as his friends declared, "had all kinds of sense, except common sense,"[ ] now wrote a series of letters for an ohio country newspaper in answer to the articles appearing in the kentucky organ of daveiss and humphrey marshall, the _western world_. the irish enthusiast tried to show that a separation of the western states from "eastern domination" would be a good thing. these foolish communications were merely repetitions of similar articles then appearing in the federalist press of new england, and of effusions printed in southern newspapers a few years before. nobody, it seems, paid much attention to these vagaries of blennerhassett. it is possible that burr knew of them, but proof of this was never adduced. when the explosion came, however, blennerhassett's maunderings were recalled, and they became another one of those evidences of burr's guilt which, to the public mind, were "confirmation strong as proofs of holy writ." burr and his newly made partner contracted for the building of fifteen boats, to be delivered in four months; and pork, meal, and other provisions were purchased. the island became the center of operations. soon a few young men from pittsburgh joined the enterprise, some of them sons of revolutionary officers, and all of them of undoubted loyalty to the nation. to each of these one hundred acres of land on the washita were promised, as part of their compensation for participating in the expedition, the entire purpose of which was not then explained to them.[ ] burr again visited marietta, where the local militia were assembled for their annual drill, and put these rural soldiers through their evolutions, again fascinating the whole community.[ ] at cincinnati, burr held another long conference with his partner, senator john smith, who was a contractor and general storekeeper. the place which the washita land speculation had already come to hold in his mind is shown by the conversation--burr talked as much of that project as he did of war with spain and his great ambition to invade mexico;[ ] but of secession, not a syllable. next burr hurried to nashville and once more became the honored guest of andrew jackson, whom he frankly told of the modification of his plans. his immediate purpose, burr said, now was to settle the washita lands. of course, if war should break out he would lead a force into texas and mexico. burr kept back only the part wilkinson was to play in precipitating hostilities; and he said nothing of his efforts to bolster up that frail warrior's resolution.[ ] in tennessee and kentucky the talk was again of war with spain. indeed, it was now the only talk.[ ] for the third time in the tennessee capital a public banquet was given to the hero by whom the people expected to be led against the enemy. soon afterward jackson issued his proclamation to the tennessee militia calling them to arms against the hated spaniards, and volunteered his services to the national government. jefferson answered in a letter provoking in its vagueness.[ ] at lexington, kentucky, burr and blennerhassett now purchased from colonel charles lynch, the owner of the bastrop grant, several hundred thousand acres on the washita river in northern louisiana.[ ] to many to whom burr had spoken of his scheme to invade mexico he gave the impression that his designs had the approval of the administration; to some he actually stated this to be the fact. in case war was declared, the administration, of course, would necessarily support burr's attack upon the enemy; if hostilities did not occur, the "government might overlook the preparations as in the case of miranda."[ ] it is hard to determine whether the project to invade mexico--of which burr did not inform them, but which they knew to be his purpose--or the plan to settle the washita lands, was the more attractive to the young men who wished to join him. certainly, the bastrop grant was so placed as to afford every possible lure to the youthful, enterprising, and adventurous.[ ] at this moment wilkinson, apparently recovered from the panic into which clark's letter had thrown him a year before, seemed resolved at last to strike. he even wrote with enthusiasm to general john adair: "the time long looked for by many & wished for by more has now arrived, for subverting the spanish government in mexico--be ready & join me; we will want little more than light armed troops.... more will be done by marching than by fighting.... we cannot fail of success.[ ] your military talents are requisite. unless you fear to join a spanish intriguer [wilkinson] come immediately--without your aid i can do nothing."[ ] in reply adair wrote wilkinson that "the united states had not declared war against spain and he did not believe they would." if not, adair would not violate the law by joining wilkinson's projected attack on spain.[ ] by the same post wilkinson wrote to senator john smith a letter bristling with italics: "i shall assuredly push them [the spaniards] over the sabine ... as that you are alive.... _you must speedily send me a force_ to support our pretensions ... _ mounted infantry ... may suffice to carry us forward as far as grand river_ [the rio grande], _there we shall require more to conduct us to mount el rey ... after which from _ to _ , will be necessary to carry our conquests to california_ and the _isthmus of darien. i write in haste, freely_ and _confidentially_, being ever your friend."[ ] in kentucky once more the rumors sprang up that burr meant to dismember the union, and these were now put forward as definite charges. for months joseph hamilton daveiss, a brother-in-law of john marshall--appointed at the latter's instance by president adams as united states attorney for the district of kentucky[ ]--had been writing jefferson exciting letters about some kind of conspiracy in which he was sure burr was engaged. the president considered lightly these tales written him by one of his bitterest enemies. with the idea of embarrassing the republican president, by connecting him, through the administration's seeming acquiescence in burr's projects as in the case of the miranda expedition, daveiss and his relative, former senator humphrey marshall--both leaders of the few federalists now remaining in kentucky--welded together the rumors of burr's mexican designs and those of his treasonable plot to separate the western states from the union. these they published in a newspaper which they controlled at frankfort.[ ] the moss was removed from the ancient spanish intrigues; wilkinson was truthfully denounced as a pensioner of spain; but the plot, it was charged, had veered from a union of the west with the spanish dominions, to the establishment, by force of arms, of an independent trans-alleghany government.[ ] the federalist organs in the east adopted the stories related in the _western world_, and laid especial emphasis on the disloyalty of the western states, particularly of kentucky. the rumors had so aroused the people living near blennerhassett's island that mrs. blennerhassett sent a messenger to warn burr that he could not, in safety, appear there again. learning this from the bearer of these tidings, burr's partner, senator john smith, demanded of his associate an explanation. burr promptly answered that he was "greatly surprised and really hurt" by smith's letter. "if," said burr, "there exists any design to separate the western from the eastern states, i am totally ignorant of it. i never harbored or expressed any such intention to any one, nor did any person ever intimate such design to me."[ ] daveiss and humphrey marshall now resolved to stay the progress of the plot at which they were convinced that the republican administration was winking. if jefferson was complacent, daveiss would act and act officially; thus the president, by contrast, would be fatally embarrassed. another motive, personal in its nature, inspired daveiss. he was an able, fearless, passionate man, and he hated burr violently for having killed hamilton whom daveiss had all but worshiped.[ ] early in november the district attorney moved the united states court at frankfort to issue compulsory process for burr's apprehension and for the attendance of witnesses. burr heard of this at lexington and sent word that he would appear voluntarily. this he did, and, the court having denied daveiss's motion because of the irregularity of it, the accused demanded that a public and official investigation be made of his plans and activities. accordingly, the grand jury was summoned and daveiss given time to secure witnesses. on the day appointed burr was in court. by his side was his attorney, a tall, slender, sandy-haired young man of twenty-nine who had just been appointed to the national senate. thus henry clay entered the drama. daveiss failed to produce a single witness, and burr, "after a dignified and grave harangue," was discharged, to the tumultuous delight of the people.[ ] two weeks later the discomfited but persistent and undaunted district attorney again demanded of judge innes the apprehension of the "traitor." clay requested of burr a written denial of the charges so incessantly made against him. this burr promptly furnished.[ ] clay was so convinced of burr's integrity that he declared in court that he "could pledge his own honor and innocence" for those of his client. once more no witnesses were produced; once more the grand jury could not return an indictment; once more burr was discharged. the crowd that packed the court-room burst into cheers.[ ] that night a ball, given in burr's honor, crowned this second of his triumphs in the united states court.[ ] thereafter burr continued his preparations as if nothing had happened. to all he calmly stated the propriety of his enterprise. to his fellow adventurer, senator john smith, he was again particularly explicit and clear: "if there should be a war between the united states and spain, i shall head a corps of volunteers and be the first to march into the mexican provinces. if peace should be proffered, which i do not expect, i shall settle my washita lands, and make society as pleasant as possible.... i have been persecuted, shamefully persecuted."[ ] as to dividing the union, burr told smith that "if bonaparte with all his army were in the western country with the object ... he would never see salt water again."[ ] while burr was writing this letter, jefferson was signing a document that, when sent forth, as it immediately was, ignited all the rumors, reports, accusations, and suspicions that had been accumulating, and set the country on fire with wrath against the disturber of our national bliss. when wilkinson received burr's cipher dispatch, he took time to consider the best methods for saving himself, filling his purse, and brightening his tarnished reputation.[ ] the faithful and unsuspecting young swartwout, burr's messenger, was persuaded to remain in wilkinson's camp for a week after the delivery of the fatal letter. he was treated with marked friendliness, and from him the general afterward pretended to have extracted frightful details of burr's undertaking.[ ] seven more days passed, and at last, two weeks after he had received burr's cipher dispatch, wilkinson wrote jefferson that "a numerous and powerful association, extending from new york to ... the mississippi had been formed to levy & rendezvous eight or ten thousand men in new orleans ... & from thence ... to carry an expedition against vera cruz." wilkinson gave details--dates and places of assembling troops, methods of invasion, etc., and added: "it is unknown under what authority this enterprize has been projected, from where the means of its support are derived, or what may be the intentions of its leaders in relation to the territory of orleans."[ ] surprising as this was, the general supported it by a "confidential" and personal letter to jefferson[ ] still more mysterious and disquieting: "the magnitude of the enterprize, the desperation of the place, and the stupendous consequences with which it seems pregnant, stagger my belief & excite doubts of the reality, against the conviction of my senses; & it is for this reason i shall forbear to commit names.... i have never in my whole life found myself in such circumstances of perplexity and embarrassment as at present; for i am not only uninformed of the prime mover and ultimate objects of this daring enterprize, but am ignorant of the foundation on which it rests." wilkinson went on to say that, as an inducement for him to take part in it, he had been told that "you [jefferson] connive at the combination and that our country will justify it." if this were not true, "then i have no doubt the revolt of this territory will be made an auxiliary step to the main design of attacking mexico." so he thought he ought to compromise with the spaniards and throw himself with his "little band into new orleans, to be ready to defend that capitol against usurpation and violence." he wrote more to the same effect, and added this postscript: "should spain be disposed to war seriously with us, might not some plan be adopted to correct the delirium of the associates, and by a pitiable appeal to their patriotism to engage them in the service of their country. i merely offer the suggestion as a possible expedient to prevent the horrors of a civil contest, and i do believe that, with competent authority i could accomplish the object."[ ] this was the letter which a few months later caused chief justice john marshall to issue a subpoena _duces tecum_ directed to president thomas jefferson in order to have it produced in court.[ ] jefferson had known of the rumors about burr--george morgan, joseph h. daveiss, and william eaton had put him on the track of the "traitor." others had told of the american catiline's treasonable plans; and the newspapers, of which he was a studious reader, had advised the president of every sensation that had appeared. jefferson and his cabinet had nervously debated the situation, decided on plans to forestall the conspiracy, and then hurriedly abandoned them;[ ] evidently they had no faith in the lurid stories of burr's treasonable purposes and preparations. letters to jefferson from the west, arriving october , , bore out the disbelief of the president and his cabinet in burr's lawless activities; for these advices from the president's friends who, on the ground, were closely watching burr, contained "not one word ... of any movements by colonel burr. this total silence of the officers of the government, of the members of congress, of the newspapers, proves he is committing no overt act against law," jefferson wrote in his cabinet memorandum.[ ] so the president and his cabinet decided to do nothing further at that time than to order john graham, while on his way to assume the office of secretary of the orleans territory, to investigate burr's activities. but when the mysterious warnings from wilkinson reached jefferson, he again called his cabinet into consultation and precipitate action was taken. orders were dispatched to military commanders to take measures against burr's expedition; wilkinson was directed to withdraw his troops confronting the spaniards and dispose of them for the defense of new orleans and other endangered points. most important of all, a presidential proclamation was issued to all officials and citizens, declaring that a conspiracy had been discovered, warning all persons engaged in it to withdraw, and directing the ferreting out and seizure of the conspirators' "vessels, arms and military stores."[ ] graham preceded the proclamation and induced governor tiffin and the ohio legislature to take action for the seizure of burr's boats and supplies at marietta; and this was done. on december , , comfort tyler of onondaga county, new york, one of the minor leaders of the burr expedition,[ ] arrived at blennerhassett's island with a few boats and some twenty young men who had joined the adventure. there were a half-dozen rifles among them, and a few fowling pieces. with these the youths went hunting in the ohio forests. blennerhassett, too, had his pistols. this was the whole of the warlike equipment of that militant throng--all that constituted that "overt act of treason by levying war against the united states" which soon brought burr within the shadow of the gallows. jefferson's proclamation had now reached western virginia, and it so kindled the patriotism of the militia of wood county, within the boundaries of which the island lay, that that heroic host resolved to descend in its armed might upon the embattled "traitors," capture and deliver them to the vengeance of the law. the wood county men, unlike those of ohio, needed no act of legislature to set their loyalty in motion. the presidential proclamation, and the sight of the enemies of the nation gathered in such threatening and formidable array on blennerhassett's island, were more than enough to cause them to spring to arms in behalf of their imperiled country. badly frightened, blennerhassett and tyler, leaving mrs. blennerhassett behind, fled down the river with thirty men in six half-equipped boats. they passed the sentries of the wood county militia only because those ministers of vigilance had got thoroughly drunk and were sound asleep. next day, however, the militia invaded the deserted island and, finding the generously stocked wine cellar, restored their strength by drinking all the wine and whiskey on the place. they then demonstrated their abhorrence of treason by breaking the windows, demolishing the furniture, tearing the pictures, trampling the flower-beds, burning the fences, and insulting mrs. blennerhassett.[ ] graham procured the authorities of kentucky to take action similar to that adopted in ohio. burr, still ignorant of jefferson's proclamation, proceeded to nashville, there to embark in the boats jackson was building for him, to go on the last river voyage of his adventure. jackson, like smith and clay, had been made uneasy by the rumors of burr's treasonable designs. he had written governor claiborne at new orleans a letter of warning, particularly against wilkinson, and not mentioning burr by name.[ ] when burr arrived at the tennessee capital, jackson, his manner now cold, demanded an explanation. burr, "with his usual dignified courtesy, instantly complied."[ ] it would seem that jackson was satisfied by his reassurance, in spite of the president's proclamation which reached nashville three days before burr's departure;[ ] for not only did jackson permit him to proceed, but, when the adventurer started down the cumberland in two of the six boats which he had built on burr's previous orders, consented that a nephew of his wife should make one of the ten or fifteen young men who accompanied the expedition. he even gave the boy a letter of introduction to governor claiborne at new orleans.[ ] after the people had recovered from the shock of astonishment that jefferson's proclamation gave them, the change in them was instantaneous and extreme.[ ] the president, to be sure, had not mentioned burr's name or so much as hinted at treason; all that jefferson charged was a conspiracy to attack the hated spaniards, and this was the hope and desire of every westerner. nevertheless, the public intelligence penetrated what it believed to be the terrible meaning behind the president's cautious words; the atrocious purpose to dismember the union, reports of which had pursued burr since a spanish agent had first set the rumor afoot a year before, was established in the minds of the people. surely the president would not hunt down an american seeking to overthrow spanish power in north america, when a spanish "liberator" had been permitted to fit out in the united states an expedition to do the same thing in south america. surely jefferson would not visit his wrath on one whose only crime was the gathering of men to strike at spain with which power, up to that very moment, everybody supposed war to be impending and, indeed, almost begun. this was unthinkable. burr must be guilty of a greater crime--the greatest of crimes. in such fashion was public opinion made ready to demand the execution of the "traitor" who had so outrageously deceived the people; and that popular outcry began for the blood of aaron burr by which john marshall was assailed while presiding over the court to which the accused was finally taken. from the moment that wilkinson decided to denounce burr to the president, his language became that of a bombastes furioso, his actions those of a military ruffian, his secret movements matched the cunning of a bribe-taking criminal. by swiftest dispatch another message was sent to jefferson. "my doubts have ceased," wrote wilkinson, concerning "this deep, dark, wicked, and wide-spread conspiracy, embracing the young and the old, the democrat and the federalist, the native and the foreigner, the patriot of ' and the exotic of yesterday, the opulent and the needy, the ins and the outs." wilkinson assured jefferson, however, that he would meet the awful emergency with "indefatigable industry, incessant vigilance and hardy courage"; indeed, declared he, "i shall glory to give my life" to defeat the devilish plot. but the numbers of the desperadoes were so great that, unless jefferson heavily reinforced him with men and ships, he and the american army under his command would probably perish.[ ] as the horse bearing the messenger to jefferson disappeared in the forests, another, upon which rode a very different agent, left wilkinson's camp and galloped toward the southwest. the latter agent was walter burling, a corrupt factotum of wilkinson's, whom that martial patriot sent to the spanish viceroy at mexico city to advise him of wilkinson's latest service to spain in thwarting burr's attack upon the royal possessions, and in averting war between the united states and his catholic majesty. for these noble performances wilkinson demanded of the spanish viceroy more than one hundred and ten thousand dollars in cash, together with other sums which "he [had] been obliged to spend in order to sustain the cause of good government, order and humanity."[ ] wilkinson had asked the viceroy to destroy the letter and this was accordingly done in burling's presence. the royal representative then told burling that he knew all about burr's plans to invade mexico, and had long been ready to repel a much larger force than wilkinson stated burr to be leading. "i thanked him for his martial zeal and insinuated that i wished him happiness in the pursuit of his righteous intentions," wrote the disgusted and sarcastic viceroy in his report to the government at madrid.[ ] with this wilkinson had to be content, for the viceroy refused to pay him a peso. upon burling's return, the vigilant american commander-in-chief forwarded to jefferson a report of conditions in mexico, as represented by burling, together with a request for fifteen hundred dollars to pay that investigator's expenses.[ ] the sole object of burling's journey was, wilkinson informed the president, to observe and report upon the situation in the great spanish vice-royalty as recent events had affected it, with respect to the interests of the united states; and jefferson was assured by the general that his agent was the soundest and most devoted of patriots.[ ] to back up the character he was now playing, wilkinson showered warnings upon the officers of the army and upon government officials in new orleans. "the plot thickens.... my god! what a situation has our country reached. let us save it if we can.... on the th of this month [november], burr's declaration is to be made in tennessee and kentucky; hurry, hurry after me, and, if necessary, let us be buried together, in the ruins of the place we shall defend." this was a typical message to colonel cushing.[ ] wilkinson dispatched orders to colonel freeman at new orleans to repair the defenses of the city; but "be you as silent as the grave.... you are surrounded by secret agents."[ ] he informed governor claiborne that "the storm will probably burst in new orleans, where i shall meet it and triumph or perish."[ ] otherwise "the fair fabric of our independence ... will be prostrated, and the goddess of liberty will take her flight from the globe forever." again and again, wilkinson sounded the alarm. "burr with rebellious bands may soon be at hand." therefore, "civil institutions must ... yield to the strong arm of military law."[ ] but claiborne must "not breathe or even hint" that catastrophe was approaching. at last, however, wilkinson unbosomed himself to the merchants of new orleans whom he assembled for that purpose. agents of the bandit chief were all around them, he said--he would have arrested them long since had he possessed the power. the desperadoes were in larger force than he had at first believed--"by all advices the enemy, at least strong," would soon reach natchez. they meant, first, to sack new orleans and then to attack mexico by land and sea. if successful in that invasion, "the western states were then to be separated from the union." but wilkinson would "pledge his life in the defense of the city and his country."[ ] at that moment burr had not even started down the mississippi with his nine boats manned by sixty young men. for a time the city was thrown into a panic.[ ] but wilkinson had overblustered. the people, recovered from their fright, began to laugh. thousands of fierce vandals, brandishing their arms, on their way to take new orleans, capture mexico, destroy the union! and this mighty force not now far away! how could that be and no tidings of it except from wilkinson? that hero witnessed with dismay this turn of public sentiment. ruthless action, then, or all his complicated performances would go for naught. ridicule would be fatal to his plans. so general james wilkinson, as head of the army of the united states, began a reign of lawless violence that has no parallel in american history. to such base uses can authority be put--with such peril to life and liberty is it invested--when unchecked by constitutional limitation enforced by fearless and unprejudiced judges! men were arrested and thrown into prison on wilkinson's orders, wholly without warrant of law. the first thus to be seized were samuel swartwout and dr. justus erich bollmann. their papers were confiscated; they were refused counsel, were even denied access to the courts. soldiers carried them to a warship in the river which at once set sail with orders from wilkinson for the delivery of the prisoners to the president at washington.[ ] another man similarly arrested was peter v. ogden of new york, nephew of jonathan dayton, who had been the companion of swartwout in his long overland journey in quest of wilkinson. public-spirited lawyers swore out writs of habeas corpus for these three men. not a syllable of evidence was adduced against ogden, who by some mischance had not been transported with bollmann and swartwout, and the court discharged him. in response to the order of the court to produce the bodies of bollmann and swartwout, wilkinson sent his aide with the general's return to the process. as the "commander of the army of the united states," he said, he took on himself "all responsibility ... resulting from the arrest of erick bollmann, who is accused of being guilty of the crime of treason against the government and the laws of the united states," and he had "taken opportune measures to warrant his safe delivery into the hands of the president." this had been done, avowed wilkinson, solely in order "to secure the nation which is menaced to its foundations by a band of traitors associated with aaron burr." to that end he would, he defiantly informed the court, "arrest, without respect to class or station, all those against whom [he had] positive proof of being accomplices in the machinations against the state."[ ] this defiance of the courts was accompanied by a copy of wilkinson's version of burr's cipher letter and some memoranda by bollmann, together with wilkinson's assertion that he had certain evidence which he would not, at that time, disclose. jefferson had long demanded of wilkinson a copy of the incriminating burr letter, and this was now forwarded, together with the general's account of the arrest of bollmann, swartwout, and ogden. in his report to the president, wilkinson accused the judge who had released ogden of being an associate of burr in his "treasonable combinations," and characteristically added that he would "look to our country for protection" in case suit for damages was brought against him by bollmann and swartwout.[ ] while bollmann and swartwout, in close confinement on the warship, were tossing on the winter seas, the saturnalia of defiance of the law continued in new orleans. ogden was again seized and incarcerated. so was his friend, james alexander of new york, who had displeased wilkinson by suing out the writs of habeas corpus. both were shortly taken to a military prison. judges, leading lawyers, prominent citizens--all protested in vain. new writs of habeas corpus were issued and ignored. edward livingston sued out a writ of attachment[ ] against wilkinson. it was defied. the civil governor was appealed to; he was cowed and declined to act in this "delicate as well as dangerous" state of things. in despair and disgust judge james workman adjourned the orleans county court _sine die_ and resigned from the bench;[ ] he too was seized by wilkinson's soldiers, and recovered his liberty only by the return of the judge of the united states district court, who dared the wrath of the military tyrant in order to release his imprisoned fellow judge.[ ] in the midst of this debauch of military lawlessness, general john adair, late one afternoon, rode into new orleans. he had come on business, having sent three thousand gallons of whiskey and two boatloads of provisions to be sold in the city, and expecting also to collect a debt of fifteen hundred dollars due him at that place; he had also intended to make some land deals. the moment wilkinson heard of the arrival of his old friend and comrade, the general ordered "a captain and one hundred soldiers" to seize adair. this was done so peremptorily that he was not allowed to dine, "altho the provision was ready on the table"; he was denied medicine, which on account of illness he wished to take with him; he was refused extra clothing and was not even allowed "to give directions respecting his horses which cost him $ in kentucky." then the bewildered adair was hurried on board a schooner and taken "down the river miles, landed on the other side ... and placed under a tent in a swamp." after he had been kept six days under guard in this situation, adair "was shipped aboard the schooner thatcher for baltimore ... in the custody of lt. luckett." wilkinson ordered the lieutenant to keep adair in close confinement and to resist "with force and arms" any civil officer who might attempt to take adair "by a writ of habeas corpus."[ ] the reason for this particular atrocity was that wilkinson had written adair the letters quoted above, and unless his correspondent were discredited and disgraced, he could convict wilkinson of the very conspiracy with which burr was being charged.[ ] during his reign of terror to put down "treason," the general was in secret communication with the spaniards, earning the bribe money which he was, and long had been, receiving from them.[ ] while wilkinson at new orleans was thus openly playing despot and secretly serving spain, the president's annual message was read to congress. in this document jefferson informed the national legislature of the advance of the spaniards toward american territory, the alarming posture of affairs, the quick response of the pioneers to the call of the government for volunteers. "having received information," he said, "that, in another part of the united states, a great number of private individuals were combining together, arming and organizing themselves contrary to law, to carry on a military expedition against the territories of spain [he] thought it necessary to take measures ... for suppressing this enterprise ... and bringing to justice its authors and abettors."[ ] such was the slight reference made to the burr "conspiracy." thanks to the president's proclamation, the "treasonable" plot of aaron burr was already on every tongue; but here, indeed, was an anti-climax. the senate referred the brief paragraph of the president's message relating to the conspiracy to a special committee. the committee took no action. everybody was in suspense. what were the facts? nobody knew. but the air was thick with surmise, rumor, conjecture, and strange fancies--none of them bearing the color of truth.[ ] marshall was then in washington and must have heard all these tales which were on every tongue. in two weeks from the time jefferson's message was read to congress, john randolph rose in his place in the house, and in a speech of sharp criticism both of spain and of the president, demanded that the president lay before congress any information in his possession concerning the conspiracy and the measures taken to suppress it.[ ] a heated debate followed. jefferson's personal supporters opposed the resolution. it was, however, generally agreed, as stated by george w. campbell of tennessee, that "this conspiracy has been painted in stronger colors than there is reason to think it deserves." there was no real evidence, said campbell; nothing but "newspaper evidence."[ ] finally that part of the resolution calling for the facts as to the conspiracy was passed by a vote of yeas to nays; while the clause demanding information as to the measures jefferson had taken was carried by yeas to nays.[ ] a week later the president responded in a special message. his information as to the conspiracy was, he said, a "voluminous mass," but there was in it "little to constitute legal evidence." it was "chiefly in the form of letters, often containing such a mixture of rumors, conjectures, and suspicions, as renders it difficult to sift out the real facts." on november , said jefferson, he had received wilkinson's letter exposing burr's evil designs which the general, "with the honor of a soldier and fidelity of a good citizen," had sent him, and which, "when brought together" with some other information, "developed burr's general designs."[ ] the president assured congress that "one of these was the severance of the union of these states beyond the alleghany mountains; the other, an attack on mexico. a third object was provided ... the settlement of a pretended purchase of a tract of country on the washita." but "this was merely a pretext." burr had soon found that the western settlers were not to be seduced into secession; and thereupon, said jefferson, the desperado "determined to seize upon new orleans, plunder the bank there, possess himself of the military and naval stores, and proceed on his expedition to mexico." for this purpose burr had "collected ... all the ardent, restless, desperate, and disaffected persons" within his reach. therefore the president made his proclamation of november , which had thwarted burr's purposes. in new orleans, however, general wilkinson had been forced to take extreme measures for the defense of the country against the oncoming plunderers. among these was the seizure of bollmann and swartwout who were "particularly employed in the endeavor to corrupt the general and the army of the united states," and who had been sent oversea by wilkinson for "ports in the atlantic states, probably on the consideration that an impartial trial could not be expected ... in new orleans, and that the city was not as yet a safe place of confinement."[ ] as to burr, jefferson assured congress that his "_guilt is placed beyond question_."[ ] with this amazing message the president sent an affidavit of wilkinson's, as well as two letters from that veracious officer,[ ] and a copy of wilkinson's version of burr's letter to him from which the general had carefully omitted the fact that the imprudent message was in answer to a dispatch from himself. but jefferson did not transmit to congress the letter, dated october , , which he had received from wilkinson. thoughtful men, who had personally studied burr for years and who were unfriendly to him, doubted the accuracy of wilkinson's version of the burr dispatch: "it sounds more like wilkinson's letter than burr's," senator plumer records in his diary. "there are ... some things in it quite irrelevant.... burr's habits have been never to trust himself on paper, if he could avoid it--when he wrote, it was with great caution.... wilkinson is not an accurate correct man."[ ] no such doubts, however, assailed the eager multitude. the awful charge of treason had now been formally made against burr by the president of the united states. this, the most sensational part of jefferson's message, at once caught and held the attention of the public, which took for granted the truth of it. from that moment the popular mind was made up, and the popular voice demanded the life of aaron burr. no mere trial in court, no adherence to rules of evidence, no such insignificant fact as the american constitution, must be permitted to stand between the people's aroused loyalty and the miscreant whom the chief executive of the nation had pronounced guilty of treason. footnotes: [ ] "we were all deeply affected, and many shed tears." (plumer to his wife, march , , plumer, ; and see _memoirs, j. q. a._: adams, i, .) "tears did flow abundantly." (burr to his daughter, march , , davis, ii, .) [ ] "there was nothing written or prepared.... it was the solemnity, the anxiety, the expectation, and the interest which i saw strongly painted in the countenances of the auditors, that inspired whatever was said." (_ib._ .) [ ] the speech, records the _washington federalist_, which had been extremely abusive of burr, "was said to be the most dignified, sublime and impressive that ever was uttered." "his address ... was delivered with great force and propriety." (plumer to his wife, march , , plumer, .) "his speech ... was delivered with great dignity.... it was listened to with the most earnest and universal attention." (_memoirs, j. q. a._: adams, i, .) burr made a profound impression on john quincy adams. "there was not a member present but felt the force of this solemn appeal to his sense of duty." (j. q. adams to his father, march , , _writings, j. q. a._: ford, iii, .) the franking privilege was given burr for life, a courtesy never before extended except to a president of the united states and mrs. washington. (see hillhouse's speech, _annals_, th cong. st sess. .) [ ] his father was the president of princeton. his maternal grandfather was jonathan edwards. [ ] hamilton's pursuit of burr was lifelong and increasingly venomous. it seems incredible that a man so transcendently great as hamilton--easily the foremost creative mind in american statesmanship--should have succumbed to personal animosities such as he displayed toward john adams, and toward aaron burr. the rivalry of hamilton and burr began as young attorneys at the new york bar, where burr was the only lawyer considered the equal of hamilton. hamilton's open hostility, however, first showed itself when burr, then but thirty-five years of age, defeated hamilton's father-in-law, philip schuyler, for the united states senate. the very next year hamilton prevented burr from being nominated and elected governor of new york. then burr was seriously considered for vice-president, but hamilton also thwarted this project. when burr was in the senate, the anti-federalists in congress unanimously recommended him for the french mission; and madison and monroe, on behalf of their colleagues, twice formally urged burr's appointment. hamilton used his influence against it, and the appointment was not made. at the expiration of burr's term in the senate, hamilton saw to it that he should not be chosen again and hamilton's father-in-law this time succeeded. president adams, in , earnestly desired to appoint burr to the office of brigadier-general under washington in the provisional army raised for the expected war with france. hamilton objected so strenuously that the president was forced to give up his design. (see adams to rush, aug. , , _old family letters_, ; and same to same, june , , _ib._ .) in the presidential contest in the house in (see vol. ii, - , of this work), burr, notwithstanding his refusal to do anything in his own behalf (_ib._ - ), would probably have been elected instead of jefferson, had not hamilton savagely opposed him. (_ib._) when, in , burr ran for governor of new york, hamilton again attacked him. it was for one of hamilton's assaults upon him during this campaign that burr challenged him. (see parton: _life and times of aaron burr_, _et seq._; also adams: _u.s._ ii, _et seq._; and _private journal of aaron burr_, reprinted from manuscript in the library of w. k. bixby, introduction, iv-vi.) so prevalent was dueling that, but for hamilton's incalculable services in founding the nation and the lack of similar constructive work by burr, the hatred of burr's political enemies and the fatal result of the duel, there certainly would have been no greater outcry over the encounter than over any of the similar meetings between public men during that period. [ ] dueling continued for more than half a century. many of the most eminent of americans, such as clay, randolph, jackson, and benton, fought on "the field of honor." in a resolution against dueling, offered in the senate by senator morrill of new hampshire, was laid on the table. (_annals_, th cong. st sess. , .) [ ] mccaleb: _aaron burr conspiracy_, ; parton: _burr_, . [ ] vol. ii, , of this work. [ ] adams: _u.s._ i, . [ ] "his official conduct in the senate ... has fully met my approbation," testifies the super-critical plumer in a letter to his wife march , . (plumer, .) [ ] "burr is completely an insulated man." (sedgwick to king, feb. , , king, iv, .) "burr has lost ground very much with jefferson's sect during the present session of congress.... he has been not a little abused ... in the democratic prints." (troup to king, april , , king, iv, .) also see _supra_, chap. ii; adams: _u.s._ i, ; and parton: _burr_, . [ ] adams: _u.s._ i, - ; channing: _jeff. system_, - . [ ] "burr is a gone man; ... jefferson is really in the dust in point of character, but notwithstanding this, he is looked up to ... as the gog and magog of his party." (troup to king, dec. , , king, iv, - .) see also adams: _u.s._ i, . [ ] channing: _jeff. system_, - . [ ] adams: _u.s._ i, . [ ] adams: _u.s._ ii, . "he was accused of this and that, through all of which he maintained a resolute silence. it was a characteristic of his never to refute charges against his name.... it is not shown that burr ever lamented or grieved over the course of things, however severely and painfully it pressed upon him." (mccaleb, .) see also parton: _burr_, . [ ] "burr ... is acting a little and skulking part. although jefferson hates him as much as one demagogue can possibly hate another who is aiming to rival him, yet burr does not come forward in an open and manly way agt. him.... burr is ruined in politics as well as in fortune." (troup to king, aug. , , king, iv, .) [ ] davis, ii, _et seq._; adams: _u.s._ i, - ; mccaleb, ; parton: _burr_, _et seq._ [ ] see _supra_, - , and vol. iv, chap. i, of this work. [ ] plumer, . [ ] it appears that some of the new england federalists urged upon the british minister the rejection of the articles of the boundary treaty in retaliation for the senate's striking out one article of that convention. they did this, records the british minister, because, as they urged, such action by the british government "would prove to be a great exciting cause to them [the new england secessionists] to go forward rapidly in the steps which they have already commenced toward a separation from the southern part of the union. "the [federalist] members of the senate," continues merry, "have availed themselves of the opportunity of their being collected here to hold private meetings on this subject, and ... their plans and calculations respecting the event have been long seriously resolved.... they naturally look forward to great britain for support and assistance whenever the occasion shall arrive." (merry to hawkesbury, march , , as quoted in adams: _u.s._ ii, .) [ ] as early as , washington declared that he feared the effect on the western people "if the spaniards on their right, and great britain on their left, instead of throwing impediments in their way as they now do, should hold out lures for their trade and alliance.... the western settlers (i speak now from my own observations) stand as it were, upon a pivot. the touch of a feather would turn them any way.... it is by the cement of interest alone we can be held together." (washington to the governor of virginia, , as quoted in marshall, v, - .) [ ] marshall, v, . [ ] jefferson to breckenridge, aug. , , _works_: ford, x, footnotes to - . [ ] see shepherd in _am. hist. rev._ viii, _et seq._; also _ib._ ix, _et seq._ [ ] clark: _proofs of the corruption of gen. james wilkinson_, - , , - , and documents therein referred to and printed in the appendix to clark's volume. [ ] "wilkinson is entirely devoted to us. he enjoys a considerable pension from the king." (casa yrujo, spanish minister, to cevallos, jan. , , as quoted in adams: _u.s._ iii, .) and see affidavits of mercier and derbigny, _blennerhassett papers_: safford, footnotes to , . "he [wilkinson] had acted conformably as suited the true interests of spain, and so i assured him for his satisfaction." (folch, spanish governor of florida, to the governor-general of cuba, june , , as quoted by cox in _am. hist. rev._ x, .) [ ] parton: _burr_, ; see also mccaleb, - . it should be borne in mind that this was the same wilkinson who took so unworthy a part in the "conway cabal" against washington during the revolution. (see vol. i, - , of this work.) for further treatment of the spanish intrigue, see cox in _am. hist rev._ xix, - ; also cox in _southwestern historical quarterly_, xvii, - . [ ] annual message, dec. , , and special message, dec. , , richardson, i, - , - . [ ] see _memoirs, j. q. a._: adams, i, - . burr wrote: "in new-york i am to be disfranchised, and in new-jersey hanged" but "you will not ... conclude that i have become disposed to submit tamely to the machinations of a banditti." burr to his son-in-law, march , , davis, ii, . [ ] - . [ ] lodge: _alexander hamilton_, - ; and see turner in _am. hist. rev._ x, . [ ] davis, ii, - . [ ] only one previous incident in burr's public life can even be faintly criticized from the point of view of honesty. in there were in new york city but two banking institutions, and both were controlled by federalists. these banks aided business men of the federalist party and refused accommodation to republican business men. the federalists controlled the legislature and no state charter for another bank in new york could be had. burr, as a member of the state senate, secured from the legislature a charter for the manhattan company to supply pure water to the city; but this charter authorized the use by the company of its surplus capital in any lawful way it pleased. thus was established a new bank where republican business men could get loans. burr, in committee, frankly declared that the surplus was to establish a bank, and governor jay signed the bill. although the whole project appears to have been open and aboveboard as far as burr was concerned, yet when the bank began business, a violent attack was made on him. (parton: _burr_, - .) for charter see _laws of new york_ (webster and skinner's edition), , chap. . [ ] merry to harrowby, aug. , , as quoted in adams: _u.s._ ii, . [ ] mccaleb, viii-ix, - . [ ] merry to harrowby (no. ), "most secret," march , , as quoted in adams: _u.s._ ii, . [ ] adams: _u.s._ ii, . [ ] davis, ii, ; also parton: _burr_, . [ ] henry adams, in his researches in the british and spanish archives, discovered and for the first time made public, in , the dispatches of the british, spanish, and french ministers to their governments. (see adams: _u.s._ iii, chaps. xiii and xiv.) [ ] professor walter flavius mccaleb has exploded the myth as to burr's treasonable purposes, which hitherto has been accepted as history. his book, the _aaron burr conspiracy_, may be said to be the last word on the subject. the lines which professor mccaleb has therein so firmly established have been followed in this chapter. [ ] pitt died and burr did not get any money from the british. (see davis, ii, .) [ ] "burr's intrigue with merry and casa yrujo was but a consummate piece of imposture." (mccaleb, viii.) [ ] up to this time dayton had had an honorable career. he had been a gallant officer of the revolution; a member of the new jersey legislature for several years and finally speaker of the house; a delegate to the constitutional convention; a representative in congress for four terms, during the last two of which he was chosen speaker of that body; and finally senator of the united states. he came of a distinguished family, was a graduate of princeton, and a man of high standing politically and socially. [ ] see cox in _am. hist. rev._ xix, ; also in _southwestern hist. quarterly_, xvii, . [ ] that burr, dayton, and others seriously thought of building a canal around the falls of the ohio on the indiana side, is proved by an act passed by the legislature of indiana territory in august, , and approved by governor william henry harrison on the th of that month. the act--entitled "an act to incorporate the indiana canal company"--is very elaborate, authorizes a capital of one million dollars, and names as directors george rogers clark, john brown, jonathan dayton, aaron burr, benjamin hovey, davis floyd, and six others. (see _laws of the indiana territory, - _, - .) the author is indebted to hon. merrill moores, m.c., of indianapolis, for the reference to this statute. [ ] hildreth, v. . [ ] adair had been a soldier in the revolutionary war, an indian fighter in the west, a member of the kentucky constitutional convention, speaker of the house of representatives of that state, registrar of the united states land office, and was one of the ablest, most trusted, and best beloved of kentuckians. adair afterward declared that "the intentions of colonel burr ... were to prepare and lead an expedition into mexico, predicated on a war" between spain and the united states; "without a war he knew he could do nothing." if war did not come he expected to settle the washita lands. (davis, ii, .) [ ] see mccaleb, ; parton: _burr_, - . [ ] mccaleb, ; parton: _life of andrew jackson_, i, - . [ ] parton: _jackson_, i, . [ ] burr to his daughter, may , . this letter is delightful. "i will ask saint a. to pray for thee too. i believe much in the efficacy of her prayers." (davis, ii, .) [ ] mccaleb, ; parton: _burr_, . [ ] mccaleb, . [ ] davies, parton, and mccaleb state that the catholic bishop appointed three jesuits, but there was no bishop in new orleans at that time and the jesuits had been suppressed. [ ] burr to his daughter, may , , davis, ii, . [ ] "no one equalled andrew jackson in warmth of devotion to colonel burr." (adams: _u.s._ iii, .) [ ] parton: _jackson_, i, - ; and mccaleb, . [ ] mccaleb, - . minor was probably directed to do this by casa yrujo himself. (see cox: _west florida controversy_, .) [ ] clark to wilkinson, sept. , , wilkinson: _memoirs of my own times_, ii, appendix xxxiii. [ ] testimony of major james bruff, _annals_, th cong. st sess. - , - . [ ] except, of course, wilkinson's story that burr urged western revolution, during the conference of these two men at st. louis. [ ] mccaleb, . [ ] wilkinson's testimony, _annals_, th cong. st sess. . [ ] mccaleb, ; parton: _burr_, . [ ] mccaleb, - . [ ] cox, ; and mccaleb, . [ ] mccaleb, . [ ] pitt died january , . the news reached america late in the winter and wilkinson learned of it some time in the spring. this fed his alarm, first awakened by the rumors set afloat by spanish agents of which clark had advised him. according to davis and parton, wilkinson's resolve to sacrifice burr was now taken. (see davis, ii, - ; also parton: _burr_, .) [ ] this was that burr with his desperadoes would seize the president and other officers of the national government, together with the public money, arsenals, and ships. if, thereafter, he could not reconcile the states to the new arrangement, the bandit chief and his followers would sail for new orleans and proclaim the independence of louisiana. professor mccaleb says that this tale was a ruse to throw casa yrujo off his guard as to the now widespread reports in florida and texas, as well as america, of burr's intended descent upon mexico. (see mccaleb, - .) it should be repeated that the proposals of burr and dayton to merry and casa yrujo were not publicly known for many years afterward. wilkinson had coached dayton and burr in the art of getting money by falsehood and intrigue. (_ib._ .) [ ] adams: _u.s._ iii, - . [ ] _blennerhassett papers_: safford, . [ ] blennerhassett to burr, dec. , , _ib._ ; and see davis, ii, . [ ] mccaleb, - . [ ] plumer, ; parton: _burr_, - . [ ] eaton assumed this title during his african career. he had no legal right to it. [ ] eaton had done good work as american consul to algiers, a post to which he was appointed by president adams. in , jefferson appointed him united states naval agent to the barbary states. with the approval of the administration, eaton undertook to overthrow the reigning pasha of tripoli and restore to the throne the pasha's brother, whom the former had deposed. in executing this project eaton showed a resourcefulness, persistence, and courage as striking as the means he adopted were bizarre and the adventure itself fantastic. (allen: _our navy and the barbary corsairs_, _et seq._) eaton charged that the enterprise failed because the american fleet did not properly coöperate with him, and because tobias lear, american consul-general to algiers, compromised the dispute with the reigning bey whom eaton's nondescript "army" was then heroically fighting. (eaton to the secretary of the navy, aug. , , _eaton_: prentiss, .) full of wrath he returned to the united states, openly denouncing all whom he considered in any way responsible for the african _débâcle_, and demanding payment of large sums which he alleged had been paid by him in advancing american interests in africa. (_ib._ , ; also see allen, .) [ ] see truxtun's testimony, _infra_, - . [ ] the talks between burr and eaton took place at the house of sergeant-at-arms wheaton, where burr boarded. (_annals_, th cong. st sess. .) [ ] see eaton's deposition, _eaton_: prentiss, - ; cranch, - . (italics are eaton's.) [ ] samuel dana and john cotton smith. (see eaton's testimony, _annals_, th cong. st sess. ; and _eaton_: prentiss, - .) that part of eaton's account of burr's conversation which differs from those with truxtun and decatur is simply unaccountable. that burr was capable of anything may be granted; but his mind was highly practical and he was uncommonly reserved in speech. undoubtedly eaton had heard the common talk about the timidity and supineness of the government under jefferson and had himself used language such as he ascribed to burr. whichever way one turns, no path out of the confusion appears. but for burr's abstemious habits (he was the most temperate of all the leading men of that period) an explanation might be that he and eaton were very drunk--burr recklessly so--if he indulged in this uncharacteristic outburst of loquacity. [ ] _eaton_: prentiss, . [ ] mccaleb, . [ ] burr to jackson, march , , parton: _jackson_, i, - . burr also told jackson of john randolph's denunciation of jefferson's "duplicity and imbecility," and of small politics receiving "more of public attention than all our collisions with foreign powers, or than all the great events on the theatre of europe." he closed with the statement, then so common, that such "things begin to make reflecting men think, many good patriots to doubt, and some to despond." (see mccaleb, .) [ ] this man, then thirty-five years of age, and "engaging in ... appearance" (_blennerhassett papers_: safford, ), had had a picturesque career. a graduate of göttingen, he lived in paris during the revolution, went to london for a time, and from there to vienna, where he practiced medicine as a cover for his real design, which was to discover the prison where lafayette was confined and to rescue him from it. this he succeeded in doing, but both were taken soon afterward. bollmann was imprisoned for many months, and then released on condition that he leave austria forever. he came to the united states and entered into burr's enterprise with unbounded enthusiasm. his name often appears as "erick bolman" in american records. [ ] dayton to wilkinson, july , , _annals_, th cong. st sess. . [ ] see testimony of littleton w. tazewell, john brokenbrough, and joseph c. cabell. (_annals_, th cong. st sess. , , ). [ ] for burr's cipher dispatch see appendix d. [ ] _annals_, th cong. st sess. - and see mccaleb, . professor mccaleb evidently doubts the disinterestedness of morgan and his sons. he shows that they had been in questionable land transactions and, at this moment, were asking congress to grant them a doubtful land claim. (see mccaleb, footnote to .) [ ] testimony of morgan's son, _annals_, th cong. st sess. . [ ] "colonel burr, on this occasion as on others, comported himself precisely as a man having 'treasonable' designs would _not_ comport himself, unless he were mad or intoxicated." (parton: _burr_, .) professor mccaleb's analysis of the morgan incident is thorough and convincing. (see mccaleb, - .) [ ] nevill and roberts to jefferson, oct. , , "letters in relation to burr conspiracy," mss. lib. cong. this important letter set out that "to give a correct written statement of those [burr's] conversations [with the morgans] ... would be difficult ... and indeed, according to our informant, much more was to be collected, from the _manner_ in which certain things were said, and hints given than from words used." [ ] mccaleb, - ; parton: _burr_, . [ ] mccaleb, - ; parton: _burr_, - . at this time burr also wrote to william wilkins and b. h. latrobe calling their attention to his bastrop speculation. (miscellaneous mss. n.y. pub. lib.) [ ] see testimony of dudley woodbridge, _infra_, . [ ] mccaleb, . [ ] parton: _burr_, - . [ ] mccaleb, . [ ] _ib._; and see parton: _jackson_, i, . [ ] "there were not a thousand persons in the united states who did not think war with spain inevitable, impending, begun!" (parton: _burr_, ; mccaleb, .) [ ] see jefferson to jackson, dec. , , as quoted in mccaleb, . [ ] see testimony of colonel charles lynch, _annals_, th cong. st sess. - ; and that of thomas bodley, clerk of the circuit court, _ib._ - . the statements of these men are also very important as showing burr's plans and preparations at this time. [ ] mccaleb, - . [ ] the bastrop grant was accessible to the markets of new orleans; it was surrounded by indian tribes whose trade was valuable; its forests were wholly unexplored; it was on the spanish border, and therefore an admirable point for foray or retreat. (see mccaleb, ; and cox in _southwestern hist. quarterly_, xvii, .) [ ] wilkinson to adair, sept. , , as quoted in open letter of adair to the _orleans gazette_, may , , "letters in relation," mss. lib. cong. [ ] wilkinson to adair, sept. , , as quoted by plumer, feb. , , "register," plumer mss. lib. cong. [ ] adair to wilkinson, oct. or nov. , as quoted by plumer, feb. , , "register," plumer mss. lib. cong. [ ] wilkinson to smith, sept. , , "letters in relation," mss. lib. cong. [ ] see vol. ii, , of this work. [ ] the _western world_, edited by the notorious john wood, author of the _history of the administration of john adams_, which was suppressed by burr. (see vol. ii, , of this work.) wood was of the same type of irresponsible pamphleteer and newspaper hack as callender and cheetham. his so-called "history" was a dull, untruthful, scandalous diatribe; and it is to burr's credit that he bought the plates and suppressed the book. yet this action was one of the reasons given for the remorseless pursuit of him, after it had been determined to destroy him. [ ] mccaleb, - . [ ] adams: _u.s._ iii, . this was a falsehood, since burr had proposed western secession to the british minister. but he knew that no one else could have knowledge of his plot with merry. it is both interesting and important that to the end of his life burr steadily maintained that he never harbored a thought of dismembering the nation. [ ] (clay to pindell, oct. , , _works of henry clay_: colton, iv, ; also _private correspondence of henry clay_: colton, - .) so strong was his devotion to hamilton, that "after he had attained full age," daveiss adopted the name of his hero as part of his own, thereafter signing himself joseph hamilton daveiss and requiring everybody so to address him. "chiefly moved ... by his admiration of colonel hamilton and his hatred of colonel burr," testifies henry clay, daveiss took the first step in the series of prosecutions that ended in the trial of burr for treason. (_ib._) [ ] adams: _u.s._ iii, . [ ] "i have no design, nor have i taken any measure to promote a dissolution of the union, or a separation of any one or more states from the residue. i have neither published a line on this subject nor has any one, through my agency, or with my knowledge. i have no design to intermeddle with the government or to disturb the tranquillity of the united states, or of its territories, or any part of them. "i have neither issued, nor signed, nor promised a commission to any person for any purpose. i do not own a musket nor a bayonet, nor any single article of military stores, nor does any person for me, by my authority or with my knowledge. "my views have been fully explained to, and approved by, several of the principal officers of government, and, i believe, are well understood by the administration and seen by it with complacency. they are such as every man of honor and every good citizen must approve." (burr to clay, dec. , , _priv. corres._: colton, - .) parton says that this was substantially true: "jefferson and his cabinet undoubtedly knew ... that he was going to settle in the western country, and that if the expected war should break out, he would head an onslaught upon the dons. "his _ulterior_ views may have been known to one, or even two, members of jefferson's cabinet, for anything that can _now_ be ascertained. the moment the tide really turned against this fated man, a surprising ignorance overspread many minds that had before been extremely well-informed respecting his plans." (parton: _burr_, - ; see also mccaleb, .) [ ] "when the grand jury returned the bill of indictment not true, a scene was presented in the court-room which i had never before witnessed in kentucky. there were shouts of applause from an audience, not one of whom ... would have hesitated to level a rifle against colonel burr, if he believed that he aimed to dismember the union, or sought to violate its peace, or overturn its constitution." (clay to pindell, oct. , , _priv. corres._: colton, .) [ ] adams: _u.s._ iii, - ; mccaleb, - ; parton: _burr_, - . [ ] burr to smith, as quoted in mccaleb, . [ ] parton: _burr_, . [ ] the spanish minister accurately explained to his home government the motives that now animated the commander of the american army: "wilkinson is entirely devoted to us. he enjoys a considerable pension from the king.... he anticipated ... the failure of an expedition of this nature [burr's invasion of mexico]. doubtless he foresaw from the first that the improbability of success in case of making the attempt would leave him like the dog in the fable with the piece of meat in his mouth; that is, that he would lose [both] the honorable employment ... [as american commander] and the generous pension he enjoys from the king. these considerations, secret in their nature, he could not explain to burr; and when the latter persisted in an idea so fatal to wilkinson's interests, nothing remained but to take the course adopted. "by this means he assures his pension; and will allege his conduct on this occasion as an extraordinary service, either for getting it increased, or for some generous compensation. "on the other hand this proceeding secures his distinguished rank in the military service of the united states, and covers him with a popularity which may perhaps result in pecuniary advantages, and in any case will flatter his vanity. "in such an alternative he has acted as was to be expected; that is, he has sacrificed burr in order to obtain, on the ruins of burr's reputation, the advantages i have pointed out." (casa yrujo to cevallos, jan. , , as quoted in adams: _u.s._ iii, - .) [ ] swartwout, under oath, denied that he had told wilkinson this story. swartwout's affidavit is important. he swears that he never heard of the revolutionizing of "the n[ew] o[rleans] territory" until wilkinson mentioned it--"i first heard of such a project from wilkinson"; that burr never had spoken of attacking mexico except "in case of war with spain"; that if there were no war, burr intended to settle the washita lands. (see henshaw in _quarterly pub. hist, and phil. soc. ohio_, ix, nos. and , - .) this young man made a deep impression of honesty and straightforwardness on all who came in contact with him. (see testimony of tazewell, cabell, and brokenbrough, _annals_, th cong. st sess. .) "swartwout is a fine genteel intelligible young man." (plumer to mason, jan. , , plumer mss. lib. cong.) notwithstanding his frank and engaging manner, swartwout was at heart a basely dishonest person. thirty years later, when collector of the port of new york, he embezzled a million and a quarter dollars of the public funds. (bassett: _life of andrew jackson_, ii, - .) [ ] wilkinson's dispatch, oct. , , "letters in relation," mss. lib. cong. wilkinson's dispatch to jefferson was based on the revelations which he pretended to have drawn from swartwout. [ ] the dispatch would go on file in the war department; the "personal and confidential" communication to jefferson would remain in the president's hands. [ ] wilkinson to jefferson, oct. , , "letters in relation," mss. lib. cong. [ ] see _infra_, chap. viii. [ ] jefferson's cabinet memorandum, oct. , , as quoted in adams: _u.s._ iii, - . [ ] _ib._ oct. , , as quoted in adams: _u.s._ iii, . [ ] jefferson's proclamation, nov. , , _works_, ford, x, - ; wilkinson: _memoirs_, ii, appendix xcvi. [ ] tyler had been in the new york legislature with burr and there became strongly attached to him. (see clark: _onondaga_.) he went to beaver, pennsylvania, in the interests of burr's enterprise, and from there made his way to blennerhassett's island. tyler always maintained that the sole object of the expedition was to settle the washita lands. (see his pathetic letter asserting this to lieutenant horatio stark, jan. , , "letters in relation," mss. lib. cong.) [ ] hildreth, v, ; parton: _burr_, - . [ ] jackson to claiborne, nov. , , parton: _jackson_, i, ; and see mccaleb, . [ ] adams: _u.s._ iii, ; parton: _jackson_, i, - . [ ] parton inaccurately says that the proclamation reached nashville after burr's departure. (parton: _jackson_, i, .) [ ] adams: _u.s._ iii, ; parton: _jackson_, i, . [ ] for instance, at nashville, burr was burnt in effigy in the public square. (parton: _jackson_, i, .) at cincinnati an amusing panic occurred: three merchant scows loaded with dry goods were believed to be a part of burr's flotilla of war vessels about to attack the town. the militia was called out, citizens organized for defense, the adjacent country was appealed to for aid. (see mccaleb, - .) [ ] wilkinson to jefferson, nov. , , wilkinson: _memoirs_, ii, appendix c. [ ] iturrigaray to cevallos, march , , as quoted in mccaleb, ; and see shepherd in _am. hist. rev._ ix, _et seq._ the thrifty general furnished burling with a passport through the posts he must pass. ("letters in relation," as quoted in mccaleb, .) credentials to the spanish official were also given burling by one of wilkinson's friends, stephen minor of natchez, the man who had first set on foot the rumor of burr's secession intentions. he was also in the pay of spain. (_ib._ - .) the spaniards aided burling on his journey in every way possible. (herrera to cordero, dec. , , as quoted in _ib._ - .) [ ] iturrigaray to cevallos, march , , as quoted in mccaleb, - . [ ] _ib._ . [ ] wilkinson to jefferson, march , , "letters in relation," mss. lib. cong. [ ] wilkinson to cushing, nov. , , wilkinson: _memoirs_, ii, appendix xcix. [ ] wilkinson to freeman, wilkinson: _memoirs_, ii, appendix xcix. [ ] wilkinson to claiborne, nov. , , _ib._ . [ ] wilkinson to claiborne, dec. and , , as quoted in mccaleb, - . [ ] _ib._ - . [ ] wilkinson to clark, dec. , , clark: _proofs_, ; also mccaleb, ; and see wilkinson to claiborne, dec. , , as quoted in mccaleb, - . [ ] swartwout was treated in a manner peculiarly outrageous. before his arrest wilkinson had borrowed his gold watch, and afterward refused to return it. when the soldiers seized swartwout they "hurried" him across the river, lodged him "for several days & nights in a poor inhospitable shed--& deprived of the necessaries of life." finally, when ordered to march with his guard--and being refused any information as to where he was to be taken--the prisoner declared that he was to be murdered and leapt into the river, crying, "i had as well die here as in the woods," whereupon "the l^t drew up his file of six men & ordered them to shoot him. the soldiers directed their guns at him & snapt them, but owing to the great rain, of the guns flashed in the pan, & the other's would not take fire. the men pursued & took him. but for the wetness of the powder this unfortunate young man must have be[en] murdered in very deed." swartwout was not permitted to take his clothing with him on the ship that carried him to baltimore; and the officer in charge of him was under orders from wilkinson to put his prisoner in chains during the voyage. (plumer, feb. , , "register," plumer mss. lib. cong.) [ ] wilkinson's return reported in the _orleans gazette_, dec. , , as quoted in mccaleb, . it does not appear what return was made in the matter of the application for a writ of habeas corpus in favor of swartwout. [ ] wilkinson to jefferson, printed in _national intelligencer_, jan. , , as quoted in mccaleb, . [ ] this was one cause of jefferson's hatred of livingston. for the celebrated litigation between these men and the effect of it on marshall and jefferson, see vol. iv, chap. ii, of this work. [ ] mccaleb, - . [ ] hildreth, v, . [ ] plumer's résumé of a letter from adair to clay. (feb. , , "register," plumer mss. lib. cong.) for this outrage adair, within a year, brought suit against wilkinson for false imprisonment. this was bitterly fought for ten years, but finally adair secured judgment for $ , "against which wilkinson was indemnified by congress." (hildreth, v, .) for three or four years adair continued in public disfavor solely because of his supposed criminal connection with burr, of which his arrest by wilkinson convinced the inflamed public mind. he slowly recovered, however, rendered excellent service as an officer in the war of , and under jackson commanded the kentucky troops at the battle of new orleans with distinguished gallantry. in the old veteran was elected governor of kentucky. afterward he was chosen representative in congress from his district. [ ] plumer's résumé of adair's letter to clay, _supra_, note . every word of adair's startling account of his arrest was true. it was never even denied. john watkins told wilkinson of a conversation with adair immediately after the latter's arrival which showed that nobody had reason to fear burr: "he [adair] observed ... that the bubble would soon burst & signified that the claims were without foundation & that he had seen nothing like an armament or preparations for a warlike expedition." (watkins to wilkinson, jan. , , wilkinson mss. chicago hist. soc.) professor cox has suggested to the author that wilkinson's summary arrest of adair was to prevent the further circulation of his statement. [ ] "during the disturbances of burr the aforesaid general [wilkinson] has, by means of a person in his confidence, constantly maintained a correspondence with me, in which he has laid before me not only the information which he acquired, but also his intentions for the various exigencies in which he might find himself." (folch to the governor-general of cuba, june , , as quoted by cox in _am. hist. rev._ x, .) [ ] jefferson's message, dec. , , _annals_, th cong. d sess. ; richardson, i, . [ ] "we have been, & still are, both amused & perplexed with the rumours, reports, & conjectures respecting aaron burr. they are numerous, various, & contradictory.... i must have plenary evidence before i believe him capable of committing the hundredth part of the absurd & foolish things that are ascribed to him.... the president of the united states, a day or two since, informed me that he knew of no evidence sufficient to convict him of either high crimes or misdemeanors." (plumer to jeremiah mason, jan. , , plumer mss. lib. cong.) see also plumer to langdon, dec. , and to livermore, jan. , , plumer mss. _loc. cit._ these letters of plumer's are most important. they state the general opinion of public men, especially federalists, as expressed in their private conversations. "i never believed him to be a fool," wrote john adams to his most intimate friend. "but he must be an idiot or a lunatick if he has really planned and attempted to execute such a project as is imputed to him." politicians have "no more regard to truth than the devil.... i suspect that this lying spirit has been at work concerning burr.... but if his guilt is as clear as the noon day sun, the first magistrate ought not to have pronounced it so before a jury had tryed him." (adams to rush, feb. , , _old family letters_, - .) see also adams to pickering, jan. , , pickering mss. mass. hist. soc.; and peters to pickering, feb. , pickering mss. _loc. cit._ marshall undoubtedly shared the common judgment, as his conduct at burr's trial abundantly shows. [ ] _annals_, th cong. d sess. . [ ] _ib._ . [ ] _ib._ - . [ ] _annals_, th cong. d sess. - . jefferson's message, jan. , , richardson, i, - . [ ] _annals_, th cong. d sess. ; richardson, i, . [ ] _annals_, th cong. d sess. . (italics the author's.) [ ] "wilkinson's letter is a curiosity.... tis don adriano de armado the second." (j. q. adams to l. c. adams, dec. , , _writings, j. q. a._: ford, iii, footnote to .) [ ] plumer, jan. , , "diary," plumer mss. lib. cong. senator plumer wrote his son, concerning wilkinson's account of burr's letter: "i am satisfied he has not accurately decyphered it. there is more of wilkinsonism than of burrism in it." (plumer to his son, jan. , , plumer mss. lib. cong.) chapter vii the capture and arraignment it was president jefferson who directed and animated the prosecution. (winfield scott.) the president's popularity is unbounded and his will is that of the nation. (joseph nicholson.) the press from one end of the continent to the other has been enlisted to excite prejudices against colonel burr. (john wickham.) two thirds of our speeches have been addressed to the people. (george hay.) it would be difficult or dangerous for a jury to acquit burr, however innocent they might think him. (marshall.) while washington was still agitated by the president's special message, the long winter voyage of bollmann and swartwout ended at baltimore, and burr's dazed dispatch-bearers were brought by military guards to the national capital. there, on the evening of january , they were thrown into the military prison at the marine barracks, and "guarded, night and day, by an officer & soldiers of the marine corps."[ ] the ship bearing james alexander had made a swift passage. on its arrival, friends of this prisoner applied to joseph f. nicholson, now united states judge at baltimore, for a writ of habeas corpus. alexander was at once set free, there being not the slightest evidence to justify his detention.[ ] a week or two later the schooner thatcher, on board which was the disconsolate and dumbfounded general adair--wilkinson's fourth prisoner to be sent to jefferson--tied up to its dock at baltimore and he was delivered "over to the commander of the fort at that city." but a passenger on the vessel, "a stranger ... of his own accord ... assured [adair] he would procure a writ of habeas corpus for him." adair also was "immediately liberated, ... there being no evidence against him."[ ] after the incarceration of bollmann and swartwout in washington, attorneys were secured for them and an application was made to judge william cranch, united states judge for the district of columbia, for a writ of habeas corpus in their behalf, directed to colonel wharton, who was in command at washington. wharton brought the luckless prisoners into court and stated that "he held them under the orders of his superior officer. they were then taken upon a bench warrant charging them with treason which superseded the writ. a motion was made by the prisoners council ... that they be discharged. the court required evidence of their probable guilt."[ ] jefferson now took a hand in the prosecution. he considered wilkinson's affidavit insufficient[ ] to hold bollmann and swartwout, and, in order to strengthen the case against them, secured from eaton an affidavit stating the dire revelations which eaton alleged burr had made to him a year before.[ ] eaton's theatrical story was thus given to the press,[ ] and not only fortified the public conviction that a conspiracy to destroy the union had been under way, but also horrified the country by the account of burr's intention to assassinate jefferson. the attorney-general and the united states district attorney, representing the government, demanded that bollmann and swartwout be held; charles lee, robert goodloe harper, and francis s. key, attorneys for the prisoners, insisted that they be released. long was the argument and "vast" the crowd that heard it; "collected & firm" was the appearance of the accused men.[ ] so universal was the curiosity, says john quincy adams, that the senate was "scarcely able here to form a quorum ... and the house ... actually adjourned."[ ] the court decided that bollmann and swartwout should be sent back to prison "for trial without bail or main-prize." for the first time in our history a national court divided on political grounds. judge cranch, a federalist first appointed by president adams,[ ] thought that the prisoners should be discharged, but was overruled by his associates, judges nicholas fitzhugh and allen bowie duckett, republicans appointed by jefferson.[ ] but john marshall and the supreme court had yet to be reckoned with. counsel for the reimprisoned men at once applied to that tribunal for a writ of habeas corpus, and marshall directed process to the jailer to show cause why the writ should not issue. an extreme and violent step was now taken to end the proceedings in court. on friday, january , , the day after the president's special message denouncing burr had been read in the senate, senator giles, who, it should be repeated, was jefferson's personal representative in that body, actually moved the appointment of a committee to draft a bill "to suspend the privilege of the writ of habeas corpus." quickly giles himself reported the measure, the senate suspended its rules, and the bill was hurriedly passed, only bayard of delaware voting against it.[ ] more astounding still, giles recommended, and the senate adopted, a special message to the house, stating the senate's action "which they think expedient to communicate to you in confidence," and asking the popular branch of congress to pass the senate bill without delay.[ ] immediately after the house convened on monday, january ,[ ] senator samuel smith of maryland appeared on the floor and delivered this "confidential message," together with the senate bill, which provided that "in all cases, where any person or persons, charged on oath with treason, misprision of treason, or other high crime or misdemeanor ... shall be arrested or imprisoned ... the privilege of the writ of habeas corpus shall be ... suspended, for and during the term of three months."[ ] the house was astounded. party discipline was, for the moment, wrathfully repudiated. mr. philip r. thompson of virginia instantly moved that the "message and the bill received from the senate ought not to be kept secret and that the doors be opened." thompson's motion was adopted by yeas to nays. then came a motion to reject the bill, followed by a brief and almost one-sided debate, which was little more than the angry protest of the representatives of the people against the proposed overthrow of this last defense of liberty. william a. burwell of virginia asked whether there was any danger "to justify this suspension of this most important right of the citizen.... he could judge from what he had already seen that men, who are perfectly innocent, would be doomed to ... undergo the infamy of the dungeon."[ ] "never," exclaimed john w. eppes of the same state, "under this government, has personal liberty been held at the will of a single individual."[ ] on the other hand, joseph b. varnum of massachusetts said that burr's "insurrection" was the worst in all history.[ ] james sloan of new jersey made a similar statement.[ ] but the house promptly rejected the senate bill by yeas to nays. the shameful attempt to prevent john marshall from deciding whether bollmann and swartwout were entitled to the benefit of the most sacred writ known to the law was thereby defeated and the chief justice was left free to grant or reject it, as justice might require. the order of the court of the district of columbia was that bollmann and swartwout "be committed to prison of this court, to take their trial for treason against the united states, by levying war against them."[ ] in the supreme court the prisoners and the government were represented by the same counsel who had argued the case below, and luther martin also appeared in behalf of the men whose long-continued and, as he believed, wholly illegal suffering had aroused the sympathies of that admirable lawyer. the supreme court first decided that it had jurisdiction. the application for the writs of habeas corpus was, in effect, an appeal from the decision of the district court. on this point justice johnson delivered a dissenting opinion, observing, as an aside, that the argument for the prisoners had shown "an unnecessary display of energy and pathos."[ ] the affidavit of general wilkinson and his version of the burr letter, concerning which "the court had difficulty," were admitted by a vote of the majority of the justices. at noon on the twenty-first day of february, , marshall delivered the opinion of the majority of the court upon the main question,[ ] "whether the accused shall be discharged or held to trial." the specific charge was that of "treason in levying war against the united states." this, declared marshall, was the most serious offense of which any man can be accused: "as there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both." in order that it should never be possible to extend treason "to offenses of minor importance," the constitution "has given a rule on the subject both to the legislatures and the courts of america, which neither can be permitted to transcend." marshall then read, with solemn impressiveness, these words from the constitution of the united states: "treason against the united states shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." to support the charge against bollmann and swartwout, said marshall, "war must be actually levied.... to conspire to levy war, and actually to levy war, are distinct offenses. the first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed." it was not necessary for the commission of this crime that a man should actually "appear in arms against his country.... if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose; all those who perform any part, however minute, or however remote from the scene of the action, and who are actually leagued in the general conspiracy, are to be considered as traitors."[ ] this passage was soon to cause marshall great embarrassment when he was confronted with it in the trial of aaron burr at richmond. [illustration: _john marshall_ _from a painting by richard n. brooke_] did this mean that men who go to the very edge of legal boundaries--who stop just short of committing treason--must go scathless? by no means! such offenses could be and must be provided for by statute. they were not, like treason, constitutional crimes. "the framers of our constitution ... must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation." this was a direct rebuke to jefferson. there can be no doubt that marshall was referring to the recent attempt to deprive bollmann and swartwout of the protection of the courts by suspending the writ of habeas corpus. "it is, therefore, more safe," continued marshall, "as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide." what do the words "levying war" mean? to complete that crime, marshall repeated, "there must be an actual assemblage of men for the purpose of executing a treasonable design ... but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war."[ ] he then applied these principles to the testimony. first he took up the deposition of eaton[ ] which, he said, indicated that the invasion of mexico "was the immediate object"[ ] that burr had in mind. but, asked the chief justice, what had this to do with bollmann and swartwout? the prosecution connected the prisoners with the statements made in eaton's deposition by offering the affidavit of general wilkinson, which included his version of burr's celebrated letter. marshall then overruled the "great and serious objections made" to the admission of wilkinson's affidavit. one of these objections was to that part which purported to set out the wilkinson translation of the burr cipher, the original letter not having been presented. marshall announced that "a division of opinion has taken place in the court," two of the judges believing such testimony totally inadmissible and two others holding that it was proper to consider it "at this incipient stage of the prosecution." thereupon marshall analyzed wilkinson's version of burr's confidential cipher dispatch.[ ] it was so vague, said the chief justice, that it "furnishes no distinct view of the design of the writer." but the "coöperation" which burr stated had been secured "points strongly to some expedition against the territories of spain." marshall then quoted these words of burr's famous message: "'burr's plan of operations is to move down rapidly from the falls on the th of november, with the first or , men in the light boats now constructing for that purpose, to be at natchez between the th and th of december, there to meet wilkinson; then to determine whether it will be expedient in the first instance to seize on, or to pass by, baton rouge. the people of the country to which we are going are prepared to receive us. their agents now with burr say that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled.'" this language was, said marshall, "rather more explicit." but "there is no expression in these sentences which would justify a suspicion that any territory of the united states was the object of the expedition. for what purpose seize on baton rouge? why engage spain against this enterprise, if it was designed against the united states?"[ ] burr's statement that "the people of the country to which we are going are prepared to receive us," was, said marshall, "peculiarly appropriate to a foreign country." and what was the meaning of the statement: "their agents now with burr say, that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled"? it was not probable that this referred to american citizens; but it perfectly fitted the mexicans. "there certainly is not in the letter delivered to general wilkinson ... one syllable which has a necessary or a natural reference to an enterprise against the territory of the united states." according to wilkinson's affidavit, swartwout knew the contents of the dispatch he was carrying; wilkinson had deposed that burr's messenger had frankly said so. without stating that, in his long journey from new york through the western states and territories in quest of wilkinson, he had "performed on his route any act whatever which was connected with the enterprise," swartwout had declared "their object to be 'to carry an expedition to the mexican provinces.'"[ ] this, said marshall, was "explanatory of the letter of col. burr, if the expressions of that letter could be thought ambiguous." but wilkinson declared in his affidavit that swartwout had also told him that "this territory would be revolutionized where the people were ready to join them, and that there would be some seizing, he supposed at new orleans."[ ] if this meant that the government in any american territory was to be revolutionized by force, "although merely as a ... means of executing some greater projects, the design was unquestionably treasonable," said marshall; "and any assemblage of men for that purpose would amount to a levying of war." it was, then, of first importance to discover the true meaning of the youthful and indiscreet messenger. for the third time the court divided. "some of the judges," marshall explained, suppose that these words of swartwout "refer to the territory against which the expedition was intended; others to that in which the conversation was held. some consider the words, if even applicable to a territory of the united states, as alluding to a revolution to be effected by the people, rather than by the party conducted by col. burr." swartwout's statement, as given in wilkinson's affidavit, that burr was assembling thousands of armed men to attack mexico, did not prove that burr had gathered an army to make war on the united states.[ ] if the latter were burr's purpose, it was not necessary that the entire host should have met at one spot; if detachments had actually formed and were marching to the place of rendezvous, treason had been committed. following his tedious habit of repeating over and over again, often in identical language, statements already clearly made, marshall for the fourth time asserted that there must be "unequivocal evidence" of "an actual assemblage." the mere fact that burr "was enlisting men in his service ... would not amount to levying war." that swartwout meant only this, said marshall, was "sufficiently apparent." if seven thousand men had actually come together in one body, every one would know about it; and surely, observed marshall, "some evidence of such an assembling would have been laid before the court." burr's intention to do certain "seizing at new orleans" did not amount to levying war from anything that could be inferred from swartwout's statement. it only "indicated a design to rob." having thus examined all the testimony before the court, marshall announced the opinion of the majority of the justices that there was not "sufficient evidence of his [swartwout's] levying war against the united states to justify his commitment on the charge of treason."[ ] the testimony against bollmann was, if possible, still weaker. there was, indeed, "no evidence to support a charge of treason" against him. whoever believed the assertions in wilkinson's affidavit could not doubt that both bollmann and swartwout "were engaged in a most culpable enterprise against the dominions of a power at peace with the united states"; but it was apparent that "no part of this crime was committed in the district of columbia." they could not, therefore, be tried in that district. upon that point the court was at last unanimous. the accused men could have been tried in new orleans--"there existed a tribunal in that city," sarcastically observed marshall; but to say that citizens might be seized by military power in the jurisdiction where the alleged crime was committed and thereafter tried "in any place which the general might select, and to which he might direct them to be carried," was not to be thought of--such a thing "would be extremely dangerous." so the long-suffering bollmann and swartwout were discharged.[ ] thus, by three different courts, five of the "conspirators" had successively been released. in the case of ogden, there was no proof; of alexander, no proof; of adair, no proof; of bollmann and swartwout, no proof. and the judges had dared to set free the accused men--had refused to consign them to prison, despite public opinion and the desire of the administration. could anything be more undemocratic, more reprehensible? the supreme court, especially, should be rebuked. on learning of that tribunal's action, giles adjourned the meeting of his committee on the treason bill in order to secure immediately a copy of marshall's opinion. in a true virginian rage, giles threatened to offer an amendment to the constitution "taking away _all_ jurisdiction of the supreme court in criminal cases." there was talk of impeaching every occupant of the supreme bench.[ ] more news had now reached washington concerning the outrages committed at new orleans; and on the day that the attorneys for bollmann and swartwout applied to the supreme court for writs of habeas corpus, james m. broom of delaware rose in the house, and introduced a resolution "to make further provision for securing the privilege of the writ of habeas corpus to persons in custody under or by color of the authority of the united states."[ ] while the cases were being argued in the supreme court and the divided judges were wrangling over the disputed points, a violent debate sprang up in the house over broom's resolution. "if, upon every alarm of conspiracy," said broom, "our rights of personal liberty are to be entrusted to the keeping of a military commander, we may prepare to take our leave of them forever."[ ] all day the debate continued; on the next day, february , while marshall was delivering his opinion that the supreme court had jurisdiction of the application of bollmann and swartwout, the controversy in the house was renewed. james elliot of vermont said that "most of the privileges intended to be secured" by the fourth, fifth, and sixth amendments[ ] "have recently been denied ... at the point of the bayonet, and under circumstances of peculiar violence." he read wilkinson's impertinent return to the orleans county court. this, said elliot, was "not obedience to the laws ... but ... defiance.... what necessity could exist for seizing one or two wandering conspirators, and transporting them fifteen hundred or two thousand miles from the constitutional scene of inquisition and trial, to place them particularly under the eye of the national government"?[ ] not only was the swish of the party whip heard in the house, he asserted, but members who would not desert the fundamentals of liberty must "be prepared for the insinuation that we countenance treason, and sympathize with traitors."[ ] the shrill voice of john randolph was heard. almost his first sentence was a blow at jefferson. if the president and his party "ever quit the ground of trial by jury, the liberty of the press, and the subordination of the military to the civil authority, they must expect that their enemies will perceive the desertion and avail themselves of the advantage."[ ] randolph assailed the recent attempt to suspend the writ of habeas corpus which, he said, "was intended ... to cover with a mantle the most daring usurpation which ever did, will, or can happen, in this or any country. there was exactly as much right to shoot the persons in question as to do what has been done."[ ] the declaration of independence had assigned wrongs of precisely the kind suffered by bollmann and swartwout "as one of the grievances imposed by the british government on the colonies. now, it is done under the constitution," exclaimed randolph, "and under a republican administration, and men are transported without the color of law, nearly as far as across the atlantic."[ ] again and again angry speakers denounced the strenuous attempts of the administration's supporters to influence republican votes on partisan grounds. only by the most desperate efforts was jefferson saved from the rebuke and humiliation of the passage of the resolution. but his escape was narrow. indefinite postponement was voted by the dangerous majority of out of a total of members.[ ] while burr's messengers were on the high seas, prisoners of war, and wilkinson at new orleans was saving the republic by rending its laws, burr himself, ignorant of all, was placidly making his way down the ohio and mississippi with his nine boats and sixty adventurers, mostly youths, many only boys. he had left jackson at nashville on december , and floating down the cumberland in two unarmed boats, had joined the remainder of the little expedition. he then met for the first time the young adventurers whom blennerhassett, comfort tyler of syracuse, new york, and davis floyd of the tiny settlement of new albany, indiana territory, had induced to join the expedition. on a cold, rainy december morning they were drawn up in a semi-circle on a little island at the mouth of the cumberland river, and burr was introduced to each of them. greeting them with his customary reserved friendliness, he told them that the objects of the expedition not already disclosed to them would be revealed at a more opportune time.[ ] such was the second "overt act" of the gathering of an armed host to "levy war" on the united states for which jefferson later fastened the charge of treason upon aaron burr. as it floated down the ohio and mississippi, the little flotilla[ ] stopped at the forts upon the river bluffs, and the officers proffered burr all the courtesies at their command. seven days after burr had left fort massac, captain bissel, in answer to a letter of inquiry from andrew jackson, assured him that "there has nothing the least alarming appeared"; burr had passed with a few boats "having nothing on board that would even suffer a conjecture, more than a man bound to market."[ ] john murrell of tennessee, sent on a secret mission of investigation, reported to jackson that, pursuant to instructions, he had closely followed and examined burr's movements on the cumberland; that he had heard reports that burr "had gone down the river with one thousand armed men"; but murrell had found the fact to be that there were but ten boats with only "sixty men on board," and "no appearance of arms."[ ] during the week when john randolph, in the house, was demanding information of the president, and wilkinson, in new orleans, was making his second series of arrests, burr, with his little group of boats and small company of men--totally unequipped for anything but the settlement of the washita lands, and poorly supplied even for that--serenely drew up to the landing at the small post of bayou pierre in the territory of mississippi. he was still uninformed of what was going forward at new orleans and at washington--still unconscious of the storm of hatred and denunciation that had been blown up against him. at the little settlement, burr learned for the first time of the fate prepared for him. bloody and violent were the measures he then adopted! he wrote a letter to cowles mead, acting governor of the territory, stating that rumors he had just heard were untrue; that "his object is agriculture and his boats are the vehicles of immigration." but he "hinted at resistance to any attempt to coerce him."[ ] what followed was related by mead himself. as directed by the war department, he had prorogued the legislature, put the territory in a state of defense, and called out the militia. when burr's letter came, mead ordered these frontier soldiers to "rendezvous at certain points.... with the promptitude of spartans, our fellow-citizens shouldered their firelocks, and in twenty-four hours i had the honor to review three hundred and seventy-five men at natches, prepared to defend their country." mead sent two aides to burr, "who tendered his respects to the civil authority." the acting governor himself then saw burr, whereupon the desperado actually "offered to surrender himself to the civil authority of the territory, and to suffer his boats to be searched." this was done by "four gentlemen of unquestionable respectability, with a detachment of thirty men." burr readily went into court and awaited trial. "thus, sir," concludes governor mead, "this mighty alarm, with all its exaggeration, has eventuated in nine boats and one hundred men,[ ] and the major part of these are boys, or young men just from school," wholly unaware of burr's evil designs.[ ] the legislature of the territory of orleans had just convened. governor claiborne recommended that a law be passed suspending the writ of habeas corpus. behind closed doors the representatives were harangued by wilkinson on the subject of the great conspiracy. all the old horrors were again paraded to induce the legislators to support wilkinson in his lawless acts. instead, that body denied the existence of treason in louisiana, expressed alarm at the "late privation" of the rights of american citizens, and determined to investigate the "measures and motives" of wilkinson. a memorial to congress was adopted, denouncing "the acts of high-handed military power ... too notorious to be denied, too illegal to be justified, too wanton to be excused," by which "the temple of justice" had been "sacrilegiously rifled."[ ] in mississippi, burr calmly awaited his trial before the united states court of that territory. bail in the sum of five thousand dollars had been furnished by colonel benijah osmun and lyman harding, two revolutionary comrades of burr, who years before had emigrated to mississippi and developed into wealthy planters. colonel osmun invited burr to be his guest. having seen the ogre and talked with him, the people of the neighborhood became burr's enthusiastic friends. soon the grand jury was impaneled to investigate burr's "crimes" and indict him for them if a true bill could be found. this body outdid the performance of the kentucky grand jury nine weeks earlier. the grand jurors asserted that, after examining the evidence, they were "of the opinion that aaron burr has not been guilty of any crime or misdemeanor against the laws of the united states or of this territory or given any just alarm or inquietude to the good people of this territory." worse still followed--the grand jury formally presented as "a grievance" the march of the militia against burr, since there had been no prior resistance by him to the civil authorities. nor did the grand jurors stop there. they also presented "as a grievance, destructive of personal liberty," wilkinson's military outrages in new orleans.[ ] when the grand jury was dismissed, burr asked to be discharged and his sureties released from his bond. the judge was thomas rodney, the father of cæsar a. rodney whom jefferson soon afterward appointed attorney-general. judge rodney out-wilkinsoned wilkinson; he denied burr's request and ordered him to renew his bond or go to jail. this was done despite the facts that the grand jury had refused to indict burr and that there was no legal charge whatever before the court. wilkinson was frantic lest burr escape him. every effort was made to seize him; officers in disguise were sent to capture him,[ ] and men "armed with dirks & pistolls" were dispatched to assassinate him.[ ] burr consulted colonel osmun and other friends, who advised him to keep out of sight for a time. so he went into hiding, but wrote the governor that he would again come before the court when he could be assured of being dealt with legally. thereupon the bond of five thousand dollars, which judge rodney had compelled burr to give, was declared forfeited and a reward of two thousand dollars was offered for his apprehension. from his place of retreat the harried man protested by letter. the governor would not relent. wilkinson was raging in new orleans. illegal imprisonment, probably death, was certain for burr if he should be taken. his friends counseled flight, and he acted on their judgment.[ ] but he would not go until he had seen his disconsolate followers once more. stealthily visiting his now unguarded flotilla, he told his men to take for themselves the boats and provisions, and, if they desired, to proceed to the washita lands, settle there, and keep as much as they wanted. he had stood his trial, he said, and had been acquitted; but now he was to be taken by unlawful violence, and the only thing left for him to do was to "flee from oppression."[ ] colonel osmun gave him the best horse in his stables. clad "in an old blanket-coat begirt with a leathern strap, to which a tin cup was suspended on the left and a scalping knife on the right," aaron burr rode away into the wilderness. at ten o'clock of a rainy night, on the very day when marshall delivered his first opinion in the case of bollmann and swartwout, burr was recognized at a forest tavern in washington county,[ ] where he had stopped to inquire the way to the house of colonel hinson, whom he had met at natchez on his first western journey and who had invited burr to be his guest if he ever came to that part of the territory. "major" nicholas perkins, a burly backwoods lawyer from tennessee, penetrated the disguise,[ ] because of burr's fine eyes and erect carriage. perkins hurried to the cabin of theodore brightwell, sheriff of the county, and the two men rode after burr, overtaking him at the residence of colonel hinson, who was away from home and whose wife had prepared supper for the wanderer. brightwell went inside while perkins remained in the downpour watching the house from the bushes. burr so won the hearts of both hostess and sheriff that, instead of arresting him, the officer proposed to guide the escaping criminal on his way the next morning.[ ] the drenched and shivering perkins, feeling that all was not right inside the cabin, hastened by horse and canoe to fort stoddert and told captain edward p. gaines of burr's whereabouts. with a file of soldiers the captain and the lawyer set off to find and take the fugitive. they soon met him with the sheriff, who was telling burr the roads to follow. exclusively upon the authority of jefferson's proclamation, burr was arrested and confined in the fort. with quiet dignity, the "traitor" merely protested and asked to be delivered to the civil courts. his arrest was wholly illegal, he correctly said; let a judge and jury again pass on his conduct. but seizure and incarceration by military force, utterly without warrant of law, were a denial of fundamental rights--rights which could not be refused to the poorest citizen or the most abandoned criminal.[ ] two weeks passed before burr was sent northward. during this period all within the stockades became his friends. the brother of captain gaines fell ill and burr, who among other accomplishments knew much about medicine, treated the sick man and cheered him with gay conversation. the soldiers liked burr; the officers liked him; their wives liked him. everybody yielded to his strange attractiveness. two weeks after marshall discharged bollmann and swartwout at washington, burr was delivered by captain gaines to a guard of nine men organized by perkins; and, preceded and followed by them, he began the thousand-mile journey to washington. for days torrential rains fell; streams were swollen; the soil was a quagmire. for hundreds of miles the only road was an indian trail; wolves filled the forest; savage indians were all about.[ ] at night the party, drenched and chilled, slept on the sodden earth. burr never complained. after ten days the first white settlements appeared. in two days more, south carolina was reached. the cautious perkins avoided the larger settlements, for burr was popular in that state and his captor would run no risks of a rescue. as the prisoner and his convoy were passing through a village, a number of men were standing before a tavern. burr suddenly threw himself from his horse and cried: "i am aaron burr, under military arrest, and claim the protection of the civil authorities." before any one could move, perkins sprang to burr's side, a pistol in each hand, and ordered him to remount. burr refused; and the gigantic frontier lawyer lifted the slight, delicate prisoner in his hands, threw him into his saddle, and the sorry cavalcade rode on, guards now on either side, as well as before and behind their charge. then, for the first and last time in his life, burr lost his composure, but only for a moment; tears filled his eyes, but instantly recovering his self-possession, he finished the remainder of that harrowing trip as courteous, dignified, and serene as ever.[ ] at fredericksburg, virginia, perkins received orders from the government to take his prisoner to richmond instead of to washington. john randolph describes the cavalcade: "colonel burr ... passed by my door the day before yesterday under a strong guard.... to guard against enquiry as much as possible he was accoutred in a shabby suit of homespun with an old white hat flopped over his face, the dress in which he was apprehended."[ ] in such fashion, when the candles were being lighted on the evening of thursday, march , , aaron burr was brought into the virginia capital, where, before a judge who could be neither frightened nor cajoled, he was to make final answer to the charge of treason. burr remained under military guard until the arrival of marshall at richmond. the chief justice at once wrote out,[ ] signed, and issued a warrant by virtue of which the desperate yet composed prisoner was at last surrendered to the civil authorities, before whom he had so long demanded to be taken. during the noon hour on monday, march , marshall went to "a retired room" in the eagle tavern. in this hostelry burr was confined. curious citizens thronged the big public room of the inn and were "awfully silent and attentive" as the pale and worn conspirator was taken by major joseph scott, the united states marshal, and two deputies through the quiet but hostile assemblage to the apartment where the chief justice awaited him. to the disappointment of the crowd, the door was closed and aaron burr stood before john marshall.[ ] george hay, the united states district attorney, had objected to holding even the beginning of the preliminary hearing at the hotel, because the great number of eager and antagonistic spectators could not be present. upon the sentiment of these, as will be seen, hay relied, even more than upon the law and the evidence, to secure the conviction of the accused man. he yielded, however, on condition that, if any discussion arose among counsel, the proceedings should be adjourned to the capitol.[ ] it would be difficult to imagine two men more unlike in appearance, manner, attire, and characteristics, than the prisoner and the judge who now confronted each other; yet, in many respects, they were similar. marshall, towering, ramshackle, bony, loose-jointed, negligently dressed, simple and unconventional of manner; burr, undersized and erect, his apparel scrupulously neat,[ ] his deportment that of the most punctilious society. outwardly, the two men resembled each other in only a single particular: their eyes were as much alike as their persons were in contrast.[ ] burr was fifty years of age, and marshall was less than six months older. both were calm, admirably poised and self-possessed; and from the personality of each radiated a strange power of which no one who came near either of them could fail to be conscious. intellectually, also, there were points of remarkable similarity. clear, cold logic was the outstanding element of their minds. the two men had the gift of lucid statement, although marshall indulged in tiresome repetition while burr never restated a point or an argument. neither ever employed imagery or used any kind of rhetorical display. notwithstanding the rigidity of their logic, both were subtle and astute; it was all but impossible to catch either off his guard. but marshall gave the impression of great frankness; while about every act and word of burr there was the air of mystery. the feeling which burr's actions inspired, that he was obreptitious, was overcome by the fascination of the man when one was under his personal influence; yet the impression of indirectness and duplicity which he caused generally, together with his indifference to slander and calumny,[ ] made it possible for his enemies, before his western venture, to build up about his name a structure of public suspicion, and even hatred, wholly unjustified by the facts. the united states district attorney laid before marshall the record in the case of bollmann and swartwout in the supreme court, and perkins proudly described how he had captured burr and brought him to richmond. hay promptly moved to commit the accused man to jail on the charges of treason and misdemeanor. the attorneys on both sides agreed that on this motion there must be argument. marshall admitted burr to bail in the sum of five thousand dollars for his appearance the next day at the court-room in the capitol. when marshall opened court the following morning, the room was crowded with spectators, while hundreds could not find admittance. hay asked that the court adjourn to the house of delegates, in order that as many as possible of the throng might hear the proceedings. marshall complied, and the eager multitude hurried pell-mell to the big ugly hall, where thenceforth court was held throughout the tedious, exasperating months of this historic legal conflict. hay began the argument. burr's cipher letter to wilkinson proved that he was on his way to attack mexico at the time his villainy was thwarted by the patriotic measures of the true-hearted commander of the american army. hay insisted that burr had intended to take new orleans and "make it the capital of his empire." the zealous young district attorney "went minutely into ... the evidence." the prisoner's stealthy "flight from justice" showed that he was guilty. john wickham, one of burr's counsel, answered hay. there was no testimony to show an overt act of treason. the alleged mexican project was not only "innocent, but meritorious"; for everybody knew that we were "in an intermediate state between war and peace" with spain. let marshall recall jefferson's message to congress on that point. if war did not break out, burr's expedition was perfectly suitable to another and a wholly peaceful enterprise, and one which the president himself had "recommended"--namely, "strong settlements beyond the mississippi."[ ] burr himself addressed the court, not, he said, "to remedy any omission of his counsel, who had done great justice to the subject," but "to repel some observations of a personal nature." treason meant deeds, yet he was being persecuted on "mere conjecture." the whole country had been unjustly aroused against him. wilkinson had frightened the president, and jefferson, in turn, had alarmed the people. had he acted like a guilty man, he asked? briefly and modestly he told of his conduct before the courts and grand juries in kentucky and mississippi, and the result of those investigations. the people among whom he journeyed saw nothing hostile or treasonable in his expedition. his "flight"? that had occurred only when he was denied the protection of the laws and when armed men, under illegal orders of an autocratic military authority, were seeking to seize him violently. then, and only then, acting upon the advice of friends and upon his own judgment, had he "abandoned a country where the laws ceased to be the sovereign power." why had the guards who brought him from alabama to richmond "avoided every magistrate on the way"? why had he been refused the use of pen, ink, and paper--denied even the privilege of writing to his daughter? it was true that when, in south carolina, the soldiers chanced upon three civilians, he did indeed "demand the interposition of the civil authority." was that criminal? was it not his right to seek to be delivered from "military despotism, from the tyranny of a military escort," and to be subjected only to "the operation of the laws of his country"?[ ] on wednesday, april , marshall delivered the second of that series of opinions which established the boundaries of the american law of treason and rendered the trial of aaron burr as notable for the number and the importance of decisions made from the bench during the progress of it, as it was famous among legal duels in the learning, power, and eloquence of counsel, in the influences brought to bear upon court and jury, and in the dramatic setting and the picturesque incidents of the proceedings. marshall had carefully written his opinion. at the close of court on the preceding day, he had announced that he would do this in order "to prevent any misrepresentations of expressions that might fall on him." he had also assured hay that, in case he decided to commit burr, the district attorney should be heard at any length he desired on the question of bail. thus, at the very beginning, marshall showed that patience, consideration, and prudence so characteristic of him, and so indispensable to the conduct of this trial, if dangerous collisions with the prevailing mob spirit were to be avoided. he had in mind, too, the haughty and peremptory conduct of chase, addison, and other judges which had given jefferson his excuse for attacking the judiciary, and which had all but placed that branch of the government in the absolute control of that great practical genius of political manipulation. by the gentleness of his voice and manner, marshall lessened the excuse which jefferson was eagerly seeking in order again to inflame the passions of the people against the judiciary. proof strong enough to convict "on a trial in chief," or even to convince the judge himself of burr's guilt, was not, said marshall, necessary to justify the court in holding him for the action of the grand jury; but there must be enough testimony "to furnish good reason to believe" that burr had actually committed the crimes with which he stood charged. marshall quoted blackstone to the effect that a prisoner could be discharged only when it appeared that the suspicion against him was "wholly groundless," but this did not mean that "the hand of malignity may grasp any individual against whom its hate may be directed or whom it may capriciously seize, charge him with some secret crime and put him on the proof of his innocence." precisely that "hand of malignity," however, burr was feeling by orders of jefferson. the partisans of the president instantly took alarm at this passage of marshall's opinion. here was this insolent federalist chief justice, at the very outset of the investigation, presuming to reflect upon their idol. such was the indignant comment that ran among the republicans who packed the hall; and reflect upon the president, marshall certainly did, and intended to do. the softly spoken but biting words of the chief justice were unnecessary to the decision of the question before him; they accurately described the conduct of the administration, and they could have been uttered only as a rebuke to jefferson or as an attempt to cool the public rage that the president had aroused. perhaps both motives inspired marshall's pen when he wrote that statesmanlike sentence.[ ] on the whole, said marshall, probable cause to suspect burr guilty of an attempt to attack the spanish possessions appeared from wilkinson's affidavit; but the charge of treason was quite another matter. "as this is the most atrocious offence which can be committed against the political body, so it is the charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power." treason is the only crime specifically mentioned in the constitution--the definition of all others is left to congress. but the constitution itself carefully and plainly describes treason and prescribes just how it must be proved. did the testimony show probable grounds for believing that burr had committed treason? marshall analyzed the affidavits of eaton and wilkinson, which constituted all of the "evidence" against burr; and although the whole matter had been examined by the supreme court in the case of bollmann and swartwout, he nevertheless went over the same ground again. no impatience, no hasty or autocratic action, no rudeness of manner, no harshness of speech on his part should give politicians a weapon with which once more to strike at judges and courts. where, asked marshall, was the evidence that burr had assembled an army to levy war on the united states? not before the court, certainly. mere "suspicion" was not to be ignored when means of proving the suspected facts were not yet secured; but where the truth could easily have been established, if it existed, and yet no proof of it had been brought forward, everybody "must admit that the ministers of justice at least ought not officially to entertain" unsupported conjectures or assertions. "the fact to be proved ... is an act of public notoriety. it must exist in the view of the world, or it cannot exist at all.... months have elapsed since the fact did occur, if it ever occurred. more than five weeks have elapsed since the ... supreme court has declared the necessity of proving the fact, if it exists. why is it not proved?" it is, said marshall, the duty of the executive department to prosecute crimes. "it would be easy" for the government "to procure affidavits" that burr had assembled troops five months ago. certainly the court "ought not to believe that there had been any remissness" on the part of the administration; and since no evidence had been presented that burr had gathered soldiers, "the suspicion, which in the first instance might have been created, ought not to be continued, unless this want of proof can be in some manner accounted for." marshall would, therefore, commit burr for high misdemeanor, but not for treason, and must, of consequence, admit the prisoner to bail. the chief justice suggested the sum of ten thousand dollars as being "about right."[ ] hay protested that the amount was too small. burr "is here among strangers," replied wickham. he has fewer acquaintances in richmond than anywhere in the country. to be sure, two humane men had saved the prisoner "from the horrors of the dungeon" when he arrived; but the first bail was only for two days, while the present bail was for an indefinite period. "besides," asserted wickham, "i have heard several gentlemen of great respectability, who did not doubt that colonel burr would keep his recognisance, express an unwillingness to appear as bail for him, lest it might be supposed they were enemies to their country."[ ] thus were cleverly brought into public and official view the conditions under which this trial, so vital to american liberty, was to be held. burr was a "traitor," asserted jefferson. "burr a traitor!" echoed the general voice. that all who befriended burr were, therefore, also "traitors at heart," was the conclusion of popular logic. who dared brave the wrath of that blind and merciless god, public prejudice? from the very beginning the prosecution invoked the power of this avenging and remorseless deity, while the defense sought to break that despotic spell and arouse the spirit of opposition to the tyranny of it. these facts explain the legal strategy of the famous controversy--a controversy that continued throughout the sweltering months of the summer and far into the autumn of . hay declared that he had been "well informed that colonel burr could give bail in the sum of one hundred thousand dollars." gravely burr answered that there was serious doubt whether bail in any sum could be procured; "gentlemen are unwilling to expose themselves to animadversions" which would be the result of their giving bail for him. he averred that he had no financial resources. "it is pretty well known that the government has ordered my property seized, and that the order has been executed." he had thus lost "upwards of forty thousand dollars," and his "credit had consequently been much impaired."[ ] marshall, unmoved by the appeals of either side, fixed the bail at ten thousand dollars and adjourned court until three o'clock to enable burr to procure sureties for that amount. at the appointed hour the prisoner came into court with five men of property who gave their bond for his appearance at the next term of the united states circuit court, to be held at richmond on may . for three precious weeks at least aaron burr was free. he made the best of his time, although he could do little more than perfect the plans for his defense. his adored theodosia was in alternate rage and despair, and burr strove to cheer and steady her as best he might. some of "your letters," he writes, "indicate a sort of stupor"; in others "you rise into phrenzy." he bids her come "back to reason.... such things happen in all democratic governments." consider the "vindictive and unrelenting persecution" of men of "virtue, ... independence and ... talents in greece and rome." let theodosia "amuse" herself by collecting instances of the kind and writing an essay on the subject "with reflections, comments and applications." the perusal of it, he says, will give him "great pleasure" if he gets it by the time court opens in may.[ ] burr learned the names of those who were to compose the grand jury that was to investigate his misdeeds. among them were "twenty democrats and four federalists," he informs his daughter. one of "the former is w. c. nicholas my vindictive ... personal enemy--the most so that could be found in this state. the most indefatigable industry is used by the agents of government, and they have money at command without stint. if i were possessed of the same means, i could not only foil the prosecutors, but render them ridiculous and infamous. the democratic papers teem with abuse of me and my counsel, and even against the chief justice. nothing is left undone or unsaid which can tend to prejudice the public mind, and produce a conviction without evidence. the machinations of this description which were used against moreau in france were treated in this country with indignation. they are practiced against me in a still more impudent degree, not only with impunity, but with applause; and the authors and abettors suppose, with reason, that they are acquiring favour with the administration."[ ] every word of this was true. the republican press blazed with denunciation of "the traitor." the people, who had been led to believe that the destruction of their "liberties" had been the object at which burr ultimately aimed, were intent on the death of their would-be despoiler. republican politicians were nervously apprehensive lest, through marshall's application of the law, burr might escape and the administration and the entire republican party thereby be convicted of persecuting an innocent man. they feared, even more, the effect on their political fortunes of being made ridiculous. giles was characteristically alert to the danger. soon after marshall had declined to commit burr for treason and had released him under bail to appear on the charge of misdemeanor only, the republican leader of the senate, then in virginia, wrote jefferson of the situation. the preliminary hearing of burr had, giles stated, greatly excited the people of virginia and probably would "have the same effect in all parts of the united states." he urged the president to take "all measures necessary for effecting ... a full and fair judicial investigation." the enemies of the administration had gone so far as to "suggest doubts" as to the "measures heretofore pursued in relation to burr," and had dared to "intimate that the executive are not possessed of evidence to justify those measures"--or, if there was such evidence, that the prosecution had been "extremely delinquent in not producing it at the examination." nay, more! "it is even said that general wilkinson will not be ordered to attend the trial." that would never do; the absence of that militant patriot "would implicate the character of the administration, more than they can be apprised of."[ ] but jefferson was sufficiently alarmed without any sounding of the tocsin by his senatorial agent. "he had so frightened the country ... that to escape being overwhelmed by ridicule, he must get his prisoner convicted of the fell designs which he had publically attributed to him."[ ] it is true that jefferson did not believe burr had committed treason;[ ] but he had formally declared to congress and the country that burr's "guilt is placed beyond question," and, at any cost, he must now make good that charge.[ ] from the moment that he received the news of marshall's decision to hold burr for misdemeanor and to accept bail upon that charge, the prosecution of his former associate became jefferson's ruling thought and purpose. it occupied his mind even more than the nation's foreign affairs, which were then in the most dangerous state.[ ] champion though he was of equal rights for all men, yet any opposition to his personal or political desires or interests appeared to madden him.[ ] a personal antagonism, once formed, became with thomas jefferson a public policy. he could see neither merit nor honesty in any act or word that appeared to him to favor burr. anybody who intimated doubt of his guilt did so, in jefferson's opinion, for partisan or equally unworthy reasons. "the fact is that the federalists make burr's cause their own, and exert their whole influence to shield him," he asserted two days after marshall had admitted burr to bail.[ ] his hatred of the national judiciary was rekindled if, indeed, its fires ever had died down. "it is unfortunate that federalism is still predominant in our judiciary department, which is consequently in opposition to the legislative & executive branches & is able to baffle their measures often," he averred at the same time, and with reference to marshall's rulings thus far in the burr case. he pours out his feelings with true jeffersonian bitterness and passion in his answer to giles's letter. no wonder, he writes, that "anxiety and doubt" had arisen "in the public mind in the present defective state of the proof." this tendency had "been sedulously encouraged by the tricks of the judges to force trials before it is possible to collect the evidence dispersed through a line of two thousand miles from maine to orleans." the federalists too were helping burr! these miscreants were "mortified only that he did not separate the union and overturn the government." the truth was, declares jefferson, that the federalists would have joined burr in order to establish "their favorite monarchy" and rid themselves of "this hated republic," if only the traitor had had "a little dawn of success." consider the inconsistent attitude of these federalists. their first "complaint was the supine inattention of the administration to a treason stalking through the land in the open light of day; the present one, that they [the administration] have crushed it before it was ripe for execution, so that no overt acts can be proved." jefferson confides to giles that the government may not be able to establish the commission of overt acts; in fact, he says, "we do not know of a certainty yet what will be proved." but the administration is already doing its very best: "we have set on foot an inquiry through the whole of the country which has been the scene of these transactions to be able to prove to the courts, if they will give time, or to the public by way of communication to congress, what the real facts have been"--this three months after jefferson had asserted, in his special message on the conspiracy, that burr's "guilt is placed beyond question." in this universal quest for "the facts," the government had no help from the national courts, complains the president: "aided by no process or facilities from federal courts,[ ] but frowned on by their new-born zeal for the liberty of those whom we would not permit to overthrow the liberties of their country, we can expect no revealments from the accomplices of the chief offender." but witnesses would be produced who would "satisfy the world if not the judges" of burr's treason. jefferson enumerates the "overt acts" which the administration expected to prove.[ ] marshall, of course, stood in the way, for it was plain that "the evidence cannot be collected under months, probably ." jefferson had directed his attorney-general, "unofficially," but "expressly," to "inform the chief justice of this." with what result? "mr. marshall says, 'more than weeks have elapsed since the opinion of the supreme court has declared the necessity of proving the overt acts if they exist. why are they not proved?' in what terms of decency," growls jefferson, "can we speak of this? as if an express could go to natchez or the mouth of the cumberland and return in weeks, to do which has never taken less than twelve." jefferson cannot sufficiently criticize marshall's opinion: "if, in nov. or dec. last, a body of troops had assembled on the ohio, it is impossible to suppose the affidavits establishing the fact could not have been obtained by the last of march," he quotes from marshall's ruling. "i ask the judge where they [the affidavits] should have been lodged? at frankfort? at cincinnati? at nashville? st. louis?... new orleans?... where? at richmond he certainly meant, or meant only to throw dust in the eyes of his audience."[ ] as his pen flew over the burning page, jefferson's anger grew. marshall's love of monarchy was at the bottom of his decision: "all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overrun this odious republic." marshall's refinements as to proof required to establish probable cause to believe burr guilty, particularly irritated jefferson. "as to the overt acts, were not the bundle of letters of information in mr. rodney's hands, the letters and facts published in the local newspapers, burr's flight, & the universal belief or rumor of his guilt, probable ground for presuming the facts ... so as to put him on trial? is there a candid man in the u s who does not believe some one, if not all, of these overt acts to have taken place?" how dare marshall require legal evidence when "letters, newspapers and rumors" condemned burr! how dare he, as a judge, not heed "the universal belief," especially when that general public opinion had been crystallized by jefferson himself! that marshall was influenced by politics and was of a kidney with the whole breed of national judges up to that time, jefferson had not the slightest doubt. "if there ever had been an instance in this or the preceding administrations, of federal judges so applying principles of law as to condemn a federal or acquit a republican offender, i should have judged them in the present case with more charity." but the conduct of the chief justice will be the final outrage which will compel a great reform. "the nation will judge both the offender & judges for themselves ... the people ... will see ... & amend the error in our constitution, which makes any branch independent of the nation.... one of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the constitution, and are themselves protected in it by the constitution itself; for impeachment is a farce which will not be tried again." thus jefferson extracts some comfort from marshall's refusal to obey popular clamor and condemn on "rumor." if marshall's "protection of burr produces this amendment,[ ] it will do more good than his condemnation would have done. against burr, personally," audaciously adds jefferson, "i never had one hostile sentiment."[ ] such was the state of the president's mind when he learned of marshall's ruling on the government's motion to commit burr to jail upon the charges of treason and high misdemeanor. jefferson felt that he himself was on trial; he knew that he must make good his charges or suffer a decline in the popularity which he prized above all else in life. he proposed that, at the very least, the public should be on his side, and he resolved to exert the utmost efforts of the national government to bend marshall to his will. thus the president of the united states became the leading counsel in the prosecution of aaron burr, as well as the director-general of a propaganda planned to confirm public opinion of burr's treason, and to discredit marshall should his decisions from the bench result in the prisoner's escape from the gallows.[ ] jefferson ordered his attorney-general, cæsar a. rodney, to direct justices of the peace throughout the country to examine everybody supposed to have any knowledge of burr, his plans, movements, or conversations. long lists of questions, designed to elicit replies that would convict burr, were sent to these officials on printed forms. a vast drag-net was spread over almost the whole of the united states and drawn swiftly and remorselessly to washington. the programme for the prosecution became the subject of anxious cabinet meetings, and the resources of every department of the executive branch of the government were employed to overwhelm the accused man. jefferson directed madison as secretary of state "to take the necessary measures," including the advance of money for their expenses, to bring to richmond witnesses "from great distances." five thousand dollars, in a single warrant, was given to the attorney-general for use in supporting the administration's case.[ ] the total amount of the public money expended by jefferson's orders to secure burr's conviction was $ , . , not a dollar of which had been appropriated for that purpose. "all lawful expenses in the prosecution of burr were audited, and paid in full," under a law which provided for the conduct of criminal cases; the sums spent by direction of the president were in addition to the money dispensed by authority of that law.[ ] when bollmann had been brought to washington, he had read with rage and amazement the newspaper accounts that burr had led two thousand armed men in a violent and treasonable attack upon the united states. accordingly, after marshall released him from imprisonment, he hastened to jefferson and tried to correct what he declared to be "false impressions" concerning burr's treason. bollmann also wished to convince the president that war with spain was desirable, and to get his support of burr's expedition. jefferson, having taken the precaution to have the secretary of state present at the interview, listened with apparent sympathy. the following day he requested bollmann to write out and deliver to him his verbal statements, "thomas jefferson giving him _his word of honour_ that they should never be used against himself [bollmann] and _that the paper shall never go out of his_ [jefferson's] _hand_."[ ] the confiding bollmann did as the president requested, his whole paper going "to disprove treason, and to show the expediency of war." because of unfamiliarity with the english language "one or two expressions" may have been "improperly used."[ ] bollmann's statement jefferson now transmitted to the district attorney at richmond, in order, said the president, "that you may know how to examine him and draw everything from him." jefferson ordered hay to show the paper only to his associate counsel; but, if bollmann "should prevaricate," the president adds, "ask him whether he did not say so and so to mr. madison and myself." the president assures hay that "in order to let him [bollmann] see that his prevarication will be marked, mr. madison will forward [hay] a pardon for him, which we mean should be delivered previously." jefferson fears that bollmann may not appear as a witness and directs hay to "take effectual measures to have him immediately taken into custody." nor was this all. three months earlier, wilkinson had suggested to jefferson the base expedient of offering pardons to burr's associates, in order to induce them to betray him and thus make certain his conviction.[ ] apparently this crafty and sinister advice now recurred to jefferson's mind--at least he followed it. he enclosed a sheaf of pardons and directed hay to fill them out "at [his] discretion, if [he] should find a defect of evidence, & believe that this would supply it, by avoiding to give them to the gross offenders, unless it be visible that the principal will otherwise escape."[ ] in the same letter jefferson also sent to hay the affidavit of one jacob dunbaugh, containing a mass of bizarre falsehoods, as was made plain during the trial. dunbaugh was a sergeant who had been arrested for desertion and had been pardoned by wilkinson on condition that he would give suitable testimony against burr. "if," continues jefferson, "general wilkinson gets on in time,[ ] i expect he will bring dunbaugh with him. at any rate it [dunbaugh's affidavit] may be a ground for an arrest & committment for treason." vividly alive to the forces at work to doom him, burr nevertheless was not dismayed. as a part of his preparation for defense he exercised on all whom he met the full power of his wonderful charm; and if ever a human being needed friends, aaron burr needed them in the virginia capital. as usual, most of those who conversed with him and looked into his deep, calm eyes became his partisans. gradually, a circle of men and women of the leading families of richmond gathered about him, supporting and comforting him throughout his desperate ordeal. burr's attorneys were no longer merely his counsel performing their professional duty; even before the preliminary hearing was over, they had become his personal friends and ardent champions. they were ready and eager to go into court and fight for their client with that aggressiveness and enthusiasm which comes only from affection for a man and a faith in his cause. every one of them not only had developed a great fondness for burr, but earnestly believed that his enterprise was praise-worthy rather than treasonable. one of them, john wickham, was a commanding figure in the society of richmond, as well as the leader of the virginia bar at that time.[ ] he was a close friend of marshall and lived in an imposing house near him. it was to wickham that marshall had left the conduct of his cases in court when he went to france on the x. y. z. mission. dinners were then the principal form of social intercourse in richmond, and were constantly given. the more prominent lawyers were particularly devoted to this pleasing method of cheer and relaxation. this custom kept the brilliant bar of richmond sweet and wholesome, and nourished among its members a mutual regard, while discouraging resentments and animosities. much of that courtesy and deference shown to one another by the lawyers of that city, even in the most spirited encounters in court, was due to that esteem and fellowship which their practice of dining together created. of the dispensers of such hospitality, marshall and wickham were the most notable and popular. the "lawyer dinners" given by marshall were famous; and the tradition of them still casts a warm and exhilarating glow. the dinners, too, of john wickham were quite as alluring. the food was as plentiful and as well prepared, the wines as varied, select, and of as ancient vintage, the brandy as old and "sound," the juleps as fragrant and seductive; and the wit was as sparkling, the table talk as informing, the good humor as heartening. nobody ever thought of declining an invitation to the house of john wickham. all these circumstances combined to create a situation for which marshall was promptly denounced with that thoughtlessness and passion so characteristic of partisanship--a situation that has furnished a handle for malignant criticism of him to this day. during the interval between the preliminary hearing and the convening of court in may, wickham gave one of his frequent and much-desired dinners. as a matter of course, wickham's intimate friend and next-door neighbor was present--no dinner in richmond ever was complete without the gentle-mannered, laughter-loving john marshall, with his gift for making everybody happy and at ease. but aaron burr was also a guest. aaron burr, "the traitor," held to make answer to charges for his infamous crimes, and john marshall, the judge before whom the miscreant was to be tried, dining together! and at the house of burr's chief counsel! here was an event more valuable to the prosecution than any evidence or argument, in the effect it would have, if rightly employed, on public opinion, before which burr had been and was arraigned far more than before the court of justice. full use was made of the incident. the republican organ, the richmond _enquirer_, promptly exposed and denounced it. this was done by means of two letters signed "a stranger from the country," who "never had any, the least confidence in the political principles of the chief justice"--none in "that noble candor" and "those splendid ... even god-like talents which many of all parties ascribe to him." base as in reality he was, marshall might have "spared his country" the "wanton insult" of having "feasted at the same convivial board with aaron burr." what excuse was there for "conduct so grossly indecent"? to what motive should marshall's action be ascribed? "is this charity, hypocracy, or federalism?" doubtless he "was not actuated by any corrupt motive," and "was unapprised of the invitation of b."[ ] however, the fact is, that the judge, the accused, and his attorney, were fellow guests at this "treason rejoicing dinner."[ ] thus the great opinions of john marshall, delivered during the trial of aaron burr, were condemned before they were rendered or even formed. with that lack of consideration which even democracies sometimes display, the facts were not taken into account. that marshall never knew, until he was among them, who his fellow guests were to be; that wickham's dinner, except in the presence of burr, differed in no respect from those constantly given in richmond; that marshall, having arrived, could do nothing except to leave and thus make the situation worse;--none of these simple and obvious facts seemed to have occurred to the eager critics of the chief justice. that marshall was keenly aware of his predicament there can be no doubt. he was too good a politician and understood too well public whimsies and the devices by which they are manipulated, not to see the consequences of the innocent but unfortunate evening at wickham's house. but he did not explain; he uttered not a syllable of apology. with good-natured contempt for the maneuvers of the politicians and the rage of the public, yet carefully and coolly weighing every element of the situation, john marshall, when the appointed day of may came around, was ready to take his seat upon the bench and to conduct the historic trial of aaron burr with that kindly forbearance which never deserted him, that canny understanding of men and motives which served him better than learning, and that placid fortitude that could not be shaken. footnotes: [ ] plumer, jan. , , "diary," plumer mss. lib. cong. senator plumer adds: "the government are apprehensive that the arts & address of _bollman_, who effected the liberation of the marquis de lafayette from the strong prison of magdeburge, may now find means to liberate himself." [ ] clay to prentiss, feb. , , _priv. corres._: colton, ; also _works_: colton, iv, . [ ] plumer, feb. , , "register," plumer mss. lib. cong. [ ] plumer to mason, jan. , , plumer mss. lib. cong. plumer's account of the proceedings is trustworthy. he was an eminent lawyer himself, was deeply interested in the case, and was writing to jeremiah mason, then the leader of the new england bar. [ ] _eaton_: prentiss, . [ ] see _supra_, - . three days before he made oath to the truth of this story, eaton's claim against the government was referred to a committee of the house (see _annals_, th cong. d sess. ), and within a month from the time the historic affidavit was made, a bill was passed, without debate, "authorizing the settlement of the accounts between the united states and william eaton." john randolph was suspicious: "he believed the bill had passed by surprise. it was not so much a bill to settle the accounts of william eaton, as to rip up the settled forms of the treasury, and to transfer the accountable duties of the treasury to the department of state. it would be a stain upon the statute book." (_ib._ .) the very next week after the passage of this measure, eaton received ten thousand dollars from the government. (see testimony of william eaton, _trials of colonel aaron burr_: robertson, stenographer, i, .) [ ] "eaton's story ... has now been served up in all the newspapers.... the amount of his narrative is, that he advised the president to send burr upon an important embassy, because!!! he had discovered the said burr to be a _traitor to his country_." (j. q. adams to l. c. adams, dec. , , _writings, j. q. a._: ford, iii, footnote to .) [ ] plumer, jan. , , "diary," plumer mss. lib. cong. [ ] j. q. adams to his father, jan. , , _writings, j. q. a._: ford, iii, . [ ] feb. , , _journal exec. proc. senate_, i, . cranch was so excellent a judge that, federalist though he was, jefferson reappointed him february , . (_ib._ ii, .) [ ] jefferson appointed nicholas fitzhugh of virginia, november , (_ib._ i, ), and allen bowie duckett of maryland, february , (_ib._ ii, ). [ ] j. q. adams to his father, jan. , , _writings, j. q. a._: ford, iii, . [ ] _annals_, th cong. d sess. . [ ] on friday afternoon the house adjourned till monday morning. [ ] _annals_, th cong. d sess. . [ ] _annals_, th cong. d sess. - . [ ] _ib._ . eppes was jefferson's son-in-law. [ ] _ib._ . [ ] _ib._ - . [ ] cranch, . [ ] cranch, . justice chase, who was absent because of illness, concurred with johnson. (clay to prentiss, feb. , , _priv. corres._: colton, ; also _works_: colton, iv, .) cæsar a. rodney, jefferson's attorney-general, declined to argue the question of jurisdiction. [ ] cranch, - . [ ] cranch, - . [ ] cranch, . [ ] see _supra_, - . [ ] cranch, - . [ ] see appendix d. in his translation wilkinson carefully omitted the first sentence of burr's dispatch: "yours, post-marked th of may, is received." (parton: _burr_, .) this was not disclosed until the fact was extorted from wilkinson at the burr trial. (see _infra_, chap. viii.) [ ] cranch, - . [ ] cranch, - . [ ] wilkinson declared in his affidavit that he "drew" from swartwout the following disclosures: "colonel burr, with the support of a powerful association, extending from new york to new orleans, was levying an armed body of seven thousand men from the state of new york and the western states and territories" to invade mexico which "would be revolutionized, where the people were ready to join them." "there would be some seizing, he supposed at new orleans"; he "knew full well" that "there were several millions of dollars in the bank of this place," but that burr's party only "meant to borrow and would return it--they must equip themselves at new orleans, etc., etc." (_annals_, th cong. d sess. - .) swartwout made oath that he told wilkinson nothing of the kind. the high character which this young man then bore, together with the firm impression of truthfulness he made on everybody at that time and during the distracting months that followed, would seem to suggest the conclusion that wilkinson's story was only another of the brood of falsehoods of which that fecund liar was so prolific. [ ] cranch, - . [ ] cranch, . [ ] cranch, . [ ] feb. , , _memoirs, j. q. a._: adams, i, . [ ] _annals_, th cong. d sess. . [ ] _ib._ . [ ] they are: "article iv. the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "article v. no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. "article vi. in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence." [ ] _annals_, th cong. d sess. . [ ] _ib._ - . [ ] _ib._ . [ ] _annals_, th cong. d sess. . [ ] _ib._ - . [ ] _ib._ . [ ] nearly all the men had been told that they were to settle the washita lands; and this was true, as far as it went. (see testimony of stephen s. welch, samuel moxley, chandler lindsley, john mulhollan, hugh allen, and others, _annals_, th cong. st sess. _et seq._) [ ] the boats were very comfortable. they were roofed and had compartments for cooking, eating, and sleeping. they were much like the modern house boat. [ ] bissel to jackson, jan. , , _annals_, th cong. d sess. - . [ ] murrell to jackson, jan. , , _annals_, th cong. d sess. . [ ] mead to the secretary of war, jan. , , _ib._ . [ ] burr had picked up forty men on his voyage down the mississippi. [ ] mead to the war department, jan. , , _annals_, th cong. d sess. . [ ] mccaleb, - . for the discussion over this resolution see _debate in the house of representatives of the territory of orleans, on a memorial to congress, respecting the illegal conduct of general wilkinson_. both sides of the question were fully represented. see also cox, , , - . [ ] return of the mississippi grand jury, feb. , reported in the _orleans gazette_, feb. , , as quoted in mccaleb, - . [ ] _annals_, th cong. st sess. - , , - . [ ] deposition of george peter, sept. , , _am. state papers, misc._ i, ; and see _quarterly pub. hist. and phil. soc. of ohio_, ix, nos. and , - ; mccaleb, - ; cox, - . [ ] mccaleb, . [ ] _ib._ [ ] in that part of the territory which is now the state of alabama. [ ] perkins had read and studied the description of burr in one of the proclamations which the governor of mississippi had issued. a large reward for the capture of burr was also offered, and on this the mind of perkins was now fastened. [ ] pickett: _history of alabama_, - . [ ] yet, five months afterward, jefferson actually wrote captain gaines: "that the arrest of colo. b. was military has been disproved; but had it been so, every honest man & good citizen is bound, by any means in his power, to arrest the author of projects so daring & dangerous." (jefferson to gaines, july , , _works_: ford, x, .) [ ] pickett, - . [ ] for the account of burr's arrest and transfer from alabama to richmond, see pickett, - . parton adopts pickett's narrative, adding only one or two incidents; see parton: _burr_, - . [ ] randolph to nicholson, march , , adams: _randolph_, . [ ] the warrant was written by marshall himself. (ms. archives of the united states court, richmond, va.) [ ] _burr trials_, i, . [ ] _burr trials_, i, . [ ] the first thing that burr did upon his arrival at richmond was to put aside his dirty, tattered clothing and secure decent attire. [ ] marshall's eyes were "the finest ever seen, except burr's, large, black and brilliant beyond description. it was often remarked during the trial, that two such pairs of eyes had never looked into one another before." (parton: _burr_, .) [ ] it was a rule of burr's life to ignore attacks upon him. (see _supra_, .) [ ] _burr trials_, i, . [ ] _burr trials_, i, - . [ ] at the noon hour "a friend" told the chief justice of the impression produced, and marshall hastened to forestall the use that he knew jefferson would make of it. calling the reporters about him, he "explicitly stated" that this passage in his opinion "had no allusion to the conduct of the government in the case before him." it was, he assured the representatives of the press, "only an elucidation of blackstone." (_burr trials_, i, footnote to .) [ ] _burr trials_, i, - . [ ] _ib._ . [ ] _burr trials_, i, . his "property," however, represented borrowed money. [ ] burr to his daughter, may , , davis, ii, - . [ ] burr to his daughter, may , , davis, ii, - . [ ] giles to jefferson, april , , anderson, . the date is given in jefferson to giles, april , , _works_: ford, x, . [ ] parton: _burr_, . [ ] "altho' at first he proposed a separation of the western country, ... yet he very early saw that the fidelity of the western country was not to be shaken and turned himself wholly towards mexico and so popular is an enterprize on that country in this, that we had only to be still, & he could have had followers enough to have been in the city of mexico in . weeks." (jefferson to james bowdoin, u.s. minister to spain, april , , _works_: ford, x, - .) in this same letter jefferson makes this amazing statement: "if we have kept our hands off her [spain] till now, it has been purely out of respect for france.... we expect therefore from the friendship of the emperor [napoleon] that he will either compel spain to do us justice, or abandon her to us. we ask but one month to be in ... the city of mexico." [ ] mccaleb, . [ ] see _infra_, - ; also vol. iv, chap. i, of this work. [ ] see nicholson to monroe, april , , adams: _randolph_, - . plumer notes "the rancor of his personal and political animosities." (plumer, .) [ ] jefferson to james bowdoin, u.s. minister to spain, april , , _works_: ford, x, . [ ] this was flatly untrue. no process to obtain evidence or to aid the prosecution in any way was ever denied the administration. this statement of the president was, however, a well-merited reflection on the tyrannical conduct of the national judges in the trials of men for offenses under the sedition law and even under the common law. (see _supra_, chap. i.) but, on the one hand, marshall had not then been appointed to the bench and was himself against the sedition law (see vol. ii, chap. xi, of this work); and, on the other hand, jefferson had now become as ruthless a prosecutor as chase or addison ever was. [ ] these were: " . the enlistment of men in a regular way; . the regular mounting of guard round blennerhassett's island; ... . the rendezvous of burr with his men at the mouth of the cumberland; . his letter to the acting governor of mississippi, holding up the prospect of civil war; . his capitulation, regularly signed, with the aides of the governor, as between two independent and hostile commanders." [ ] the affidavits in regard to what happened on blennerhassett's island would necessarily be lodged in richmond, since the island was in virginia and the united states court for the district of that state alone had jurisdiction to try anybody for a crime committed within its borders. even had there been any doubt as to where the trial would take place, the attorney-general would have held the affidavits pending the settlement of that point; and when the place of trial was determined upon, promptly dispatched the documents to the proper district attorney. [ ] the reference is to the amendment to the constitution urged by jefferson, and offered by randolph in the house, providing that a judge should be removed by the president on the address of both houses of congress. (see _supra_, chap. iv, .) [ ] jefferson to giles, april , , _works_: ford, x, - . [ ] see parton: _burr_, - . "the real prosecutor of aaron burr, throughout this business, was thomas jefferson, president of the united states, who was made president of the united states by aaron burr's tact and vigilance, and who was able therefore to wield against aaron burr the power and resources of the united states." (_ib._ .) and see mccaleb, . [ ] jefferson to the secretary of state, april , , _works_: ford, x, . [ ] jenkinson: _aaron burr_, - . [ ] jefferson to "bollman," jan. , , davis, ii, . [ ] bollmann's narrative, davis, ii, . [ ] mccaleb, . [ ] jefferson to the united states district attorney for virginia, may , , _works_: ford, x, - . bollmann, in open court, scornfully declined to accept the pardon. (see _infra_, .) [ ] wilkinson was then _en route_ by sea to testify against burr before the grand jury. [ ] mordecai: _richmond in by-gone days_, . [ ] according to a story, told more than a century after the incident occurred, marshall did not know, when he accepted wickham's invitation, that burr was to be a guest, but heard of that fact before the dinner. his wife, thereupon, advised him not to go, but, out of regard for wickham, he attended. (thayer: _john marshall_, - .) this tale is almost certainly a myth. professor thayer, to whom it was told by an unnamed descendant of marshall, indicates plainly that he had little faith in it. the facts that, at the time, even the _enquirer_ acquitted marshall of any knowledge that burr was to be present; that the prudence of the chief justice was admitted by his bitterest enemies; that so gross an indiscretion would have been obvious to the most reckless; that marshall, of all men, would not have embarrassed himself in such fashion, particularly at a time when public suspicion was so keen and excitement so intense--render it most improbable that he knew that burr was to be at the wickham dinner. [ ] _enquirer_, april and , . chapter viii administration versus court in substance jefferson said that if marshall should suffer burr to escape, marshall himself should be removed from office. (henry adams.) it becomes our duty to lay the evidence before the public. go into any expense necessary for this purpose. (jefferson.) the president has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend. (luther martin.) if you cannot exorcise the demon of prejudice, you can chain him down to law and reason. (edmund randolph.) on may , , the hall of the house of delegates at richmond was densely crowded long before the hour of half-past twelve, when john marshall took his seat upon the bench and opened court. so occupied was every foot of space that it was with difficulty that a passage was opened through which the tall, awkwardly moving, and negligently clad chief justice could make his way. by marshall's side sat cyrus griffin, judge of the district court, who throughout the proceedings was negligible. the closely packed spectators accurately portrayed the dress, manners, and trend of thought of the american people of that period. gentlemen in elegant attire--hair powdered and queues tied in silk, knee breeches and silver buckles, long rich cloth coats cut half away at the waist, ruffled shirts and high stocks--were conspicuous against the background of the majority of the auditors, whose apparel, however, was no less picturesque. this audience was largely made up of men from the smaller plantations, men from the mountains, men from the backwoods, men from the frontiers. red woolen shirts; rough homespun or corduroy trousers, held up by "galluses"; fringed deerskin coats and "leggings" of the same material kept in place by leather belts; hair sometimes tied by strings in uncouth queues, but more often hanging long and unconfined--in such garb appeared the greater part of the attendance at the trial of aaron burr. in forty years there had been but little change in the general appearance of virginians[ ] except that fewer wore the old dignified and becoming attire of well-dressed men. nearly all of them were republicans, plain men, devoted to jefferson as the exponent of democracy and the heaven-sent leader of the people. among these jeffersonians, however, were several who, quite as much as the stiffest federalists, prided themselves upon membership in the "upper classes." nearly all of the republicans present, whether of the commonalty or the gentry, were against aaron burr. scattered here and there were a few federalists--men who were convinced that democracy meant the ruin of the republic, and who profoundly believed that jefferson was nothing more than an intriguing, malicious demagogue--most of whom looked upon burr with an indulgent eye. so did an occasional republican, as now and then a lone federalist denounced burr's villainy. the good-sized square boxes filled with sand that were placed at infrequent intervals upon the floor of the improvised court-room were too few to receive the tobacco juice that filled the mouths of most of the spectators before it was squirted freely upon the floor and wall. those who did not chew the weed either smoked big cigars and fat pipes or contented themselves with taking snuff.[ ] upon recess or adjournment of court, all, regularly and without loss of time, repaired to the nearest saloons or taverns and strengthened themselves, with generous draughts of whiskey or brandy, taken "straight," for a firmer, clearer grasp of the points made by counsel. never, in its history, had richmond been so crowded with strangers. nearly five thousand people now dwelt in the virginia capital, the site of which was still "untamed and broken" by "inaccessible heights and deep ravines."[ ] thousands of visitors had come from all over the country to witness the prosecution of that fallen angel whose dark deeds, they had been made to believe, had been in a fair way to destroy the nation. the inns could shelter but an insignificant fraction of them, and few were the private houses that did not take in men whom the taverns could not accommodate. hundreds brought covered wagons or tents and camped under the trees or on the river-banks near the city. correspondents of the press of the larger cities were present, among them the youthful[ ] washington irving, who wrote one or two articles for a new york paper. [illustration: _the old state house. richmond, va._ _where marshall presided at the burr trial._] in the concourse thus drawn to richmond, few there were who were not certain that burr had planned and attempted to assassinate jefferson, overthrow the government, shatter the nation, and destroy american "liberty"; and so vocal and belligerent was this patriotic majority that men who at first held opinions contrary to the prevailing sentiment, or who entertained doubts of burr's guilt, kept discreetly silent. so aggressively hostile was public feeling that, weeks later, when the bearing and manners of burr, and the devotion, skill, and boldness of his counsel had softened popular asperity, marshall declared that, even then, "it would be difficult or dangerous for a jury to venture to acquit burr, however innocent they might think him."[ ] the prosecution of aaron burr occurred when a tempest of popular prejudice and intolerance was blowing its hardest. the provision concerning treason had been written into the american constitution "to protect the people against that horrible and dangerous doctrine of constructive treason which had stained the english records with blood and filled the english valleys with innocent graves."[ ] the punishment for treason in all countries had been brutal and savage in the extreme. in england, that crime had not perhaps been treated with such severity as elsewhere. yet, even in england, so harsh had been the rulings of the courts against those charged with treason, so inhuman the execution of judgments upon persons found guilty under these rulings, so slight the pretexts that sent innocent men and women to their death,[ ] that the framers of our fundamental law had been careful to define treason with utmost clearness, and to declare that proof of it could only be made by two witnesses to the same overt act or by confession of the accused in open court.[ ] that was one subject upon which the quarreling members of the constitutional convention of had been in accord, and their solution of the question had been the one and the only provision of which no complaint had been made during the struggle over ratification. every member of that convention--every officer and soldier of the revolution from washington down to private, every man or woman who had given succor or supplies to a member of the patriot army, everybody who had advocated american independence--all such persons could have been prosecuted and might have been convicted as "traitors" under the british law of constructive treason.[ ] "none," said justice james iredell in , "can so highly ... prize these provisions [of the constitution] as those who are best acquainted with the abuses which have been practised in other countries in prosecutions for this offence.... we ... hope that the page of american history will never be stained with prosecutions for treason, begun without cause, conducted without decency, and ending in iniquitous convictions, without the slightest feelings of remorse."[ ] yet, six years later, iredell avowed his belief in the doctrine of constructive treason.[ ] and in less than seventeen years from the time our national government was established, the reasons for writing into the constitution the rigid provision concerning treason were forgotten by the now thoroughly partisanized multitude, if, indeed, the people ever knew those reasons. moreover, every national judge who had passed upon the subject, with the exception of john marshall, had asserted the british doctrine of constructive treason. most of the small number who realized the cause and real meaning of the american constitutional provision as to treason were overawed by the public frenzy; and brave indeed was he who defied the popular passion of the hour or questioned the opinion of thomas jefferson, then at the summit of his popularity.[ ] one such dauntless man, however, there was among the surging throng that filled the capitol square at richmond after the adjournment of court on may , and he was a vigorous republican, too. "a tall, lank, uncouth-looking personage, with long locks of hair hanging over his face, and a queue down his back tied in an eel-skin, his dress singular, his manners and deportment that of a rough backwoodsman,"[ ] mounted the steps of a corner grocery and harangued the glowering assemblage that gathered in front of him.[ ] his daring, and an unmistakable air that advertised danger to any who disputed him, prevented that violent interruption certain to have been visited upon one less bold and formidable. he praised burr as a brave man and a patriot who would have led americans against the hated spanish; he denounced jefferson as a persecutor who sought the ruin of one he hated. thus andrew jackson of tennessee braved and cowed the hostile mob that was demanding and impatiently awaiting the condemnation and execution of the one who, for the moment, had been made the object of the country's execration.[ ] jackson had recovered from his brief distrust of burr, and the reaction had carried his tempestuous nature into extreme championship of his friend. "i am more convinced than ever," he wrote during the trial, "that treason was never intended by burr."[ ] throughout the extended and acrimonious contest, jackson's conviction grew stronger that burr was a wronged man, hounded by betrayers, and the victim of a political conspiracy to take his life and destroy his reputation. and jackson firmly believed that the leader of this cabal was thomas jefferson. "i am sorry to say," he wrote, "that this thing [the burr trial] has ... assumed the shape of a political persecution."[ ] the administration retaliated by branding andrew jackson a "malcontent"; and madison, because of jackson's attitude, prevented as long as possible the military advancement of the refractory tennesseean during the war of .[ ] on the other hand, burr never ceased to be grateful to his frontiersman adherent, and years later was one of those who set in motion the forces which made andrew jackson president of the united states.[ ] nor was jackson the only republican who considered jefferson as the contriving and energizing hand of the scheme to convict burr. almost riotous were the efforts to get into the hall where the trial was held, though it was situated on a steep hill and "the ascent to the building was painfully laborious."[ ] old and eminent lawyers of richmond could not reach the bar of the court, so dense was the throng. one youthful attorney, tall and powerful, "the most magnificent youth in virginia," determined to witness the proceedings, shouldered his way within and "stood on the massive lock of the great door" of the chamber.[ ] thus winfield scott got his first view of that striking scene, and beheld the man whose plans to invade mexico he himself, more than a generation afterward, was to carry out as commander of the american army. scott, there and then, arrived at conclusions which a lifetime of thought and experiences confirmed. "it was president jefferson who directed and animated the prosecution," he declares in his "memoirs." scott records the political alignment that resulted: "hence every republican clamored for execution. of course, the federalists ... compacted themselves on the other side."[ ] of all within the hall of delegates, and, indeed, among the thousands then in richmond, only two persons appeared to be perfectly at ease. one of them was john marshall, the other was aaron burr. winfield scott tells us of the manner of the imperiled man as he appeared in court on that sultry midday of may: "there he stood, in the hands of power, on the brink of danger, as composed, as immovable, as one of canova's living marbles." but, says scott, "marshall was the master spirit of the scene."[ ] gathered about burr were four of his counsel, the fifth and most powerful of his defenders, luther martin, not yet having arrived. the now elderly edmund randolph, bearing himself with "overawing dignity"; john wickham, whose commanding presence corresponded well with his distinguished talents and extensive learning; benjamin botts, a very young lawyer, but of conceded ability and noted for a courage, physical and moral, that nothing could shake; and another young attorney, john baker, a cripple, as well known for his wit as botts for his fearlessness--this was the group of men that appeared for the defense. for the prosecution came jefferson's united states district attorney, george hay--eager, nervous, and not supremely equipped either in mind or attainments; william wirt--as handsome and attractive as he was eloquent and accomplished, his extreme dissipation[ ] now abandoned, and who, by his brilliant gifts of intellect and character, was beginning to lay the solid foundations of his notable career; and alexander macrae, then lieutenant-governor of virginia--a sour-tempered, aggressive, well-informed, and alert old scotchman, pitiless in his use of sarcasm, caring not the least whom he offended if he thought that his affronts might help the cause for which he fought. david robertson, the stenographer who reported the trial, was a scholar speaking five or six languages.[ ] with all these men marshall was intimately acquainted, and he was well assured that, in making up his mind in any question which arose, he would have that assistance upon which he so much relied--exhaustive argument and complete exposition of all the learning on the subject to be decided. marshall was liked and admired by the lawyers on both sides, except george hay, who took jefferson's view of the chief justice. indeed, the ardent young republican district attorney passionately espoused any opinion the president expressed. the whole bar understood the strength and limitations of the chief justice, the power of his intellect no less than his unfamiliarity with precedents and the learning of the law. from these circumstances, and from marshall's political wisdom in giving the lawyers a free hand, resulted a series of forensic encounters seldom witnessed or even tolerated in a court of justice. the first step in the proceedings was the examination by the grand jury of the government's witnesses, and its return, or refusal to return, bills of indictment against burr. when the clerk had called the names of those summoned on the grand jury, burr arose and addressed the court. clad in black silk, hair powdered and queue tied in perfect fashion, the extreme pallor of his face in striking contrast to his large black eyes, he made a rare picture of elegance and distinction in the uncouth surroundings of that democratic assemblage. the accused man spoke with a quiet dignity and an "impressive distinctness" which, throughout the trial, so wrought upon the minds of the auditors that, fifty years afterward, some of those who heard him could repeat sentences spoken by him.[ ] burr now objected to the panel of the grand jury. the law, he said, required the marshal to summon twenty-four freeholders; if any of these had been struck off and others summoned, the act was illegal, and he demanded to know whether this had been done.[ ] for an hour or more the opposing counsel wrangled over this point. randolph hints at the strategy of the defense: "there never was such a torrent of prejudice excited against any man, before a court of justice, as against colonel burr, and by means which we shall presently unfold." marshall sustained burr's exception: undoubtedly the marshal had acted "with the most scrupulous regard to what he believed to be the law," but, if he had changed the original panel, he had transcended his authority.[ ] it was then developed that the panel had been changed, and the persons thus illegally placed on the grand jury were dismissed.[ ] "with regret," burr demanded the right to challenge the remainder of the grand jury "for favour."[ ] hay conceded the point, and burr challenged senator william branch giles. merely upon the documents in jefferson's special message to congress, giles had advocated that the writ of habeas corpus be suspended, and this, argued burr, he could have done only if he supposed "that there was a rebellion or insurrection, and a public danger, of no common kind." this action of giles was a matter of record; moreover, he had publicly made statements to the same effect.[ ] senator giles admitted that he had acted and spoken as burr charged; and while denying that he held any "personal resentments against the accused," and asserting that he could act fairly as a grand juror, he graciously offered to withdraw. marshall mildly observed that "if any gentleman has made up and declared his mind, it would be best for him to withdraw." with superb courtesy, burr disavowed any reflection on giles; it was merely above "human nature" that he should not be prejudiced. "so far from having any animosity against him, he would have been one of those whom i should have ranked among my personal friends." burr then challenged colonel wilson cary nicholas,[ ] who spiritedly demanded the objections to him. nicholas "entertained a bitterly personal animosity" against him, replied burr. he would not, however, insist upon "further inquiry" if nicholas would withdraw as giles had done. nicholas then addressed the court. he had been a member of the national house, he said, "when the attempt was made to elect colonel burr president," and everybody knew how he felt about that incident. he had been in the senate for three years "while colonel burr was president of that body," and had done all he could to nominate clinton in burr's stead. his suspicions had been "very much excited" when burr made his western journey, and he had openly stated his "uncommon anxiety" concerning "not only the prosperity, but the union of the states." therefore, he had not desired to serve on the grand jury and had asked the marshal to excuse him. he had finally consented solely from his delicate sense of public duty. also, said nicholas, he had been threatened with the publication of one of the "most severe pieces" against him if he served on the grand jury; and this inclined him to "defy [his] enemies [rather] than to ask their mercy or forbearance." his friends had advised him not to make mention of this incident in court; but, although he was "not scrupulous of acquiring, in this way, a reputation of scrupulous delicacy," and had determined to heed the counsel of his friends, still, he now found himself so confused that he did not know just what he ought to do. on the whole, however, he thought he would follow the example of senator giles and withdraw.[ ] at that very moment, nicholas was a republican candidate for congress and, next to giles, jefferson's principal political agent in virginia. four days after burr had been brought to richmond, jefferson had written nicholas a letter of fulsome flattery "beseeching" him to return to the national house in the place of the president's son-in-law, thomas mann randolph, who had determined to retire, and assuring him of the republican leadership if he would do so.[ ] thus, for a moment, was revealed a thread of that web of intrigue and indirect influence which, throughout the trial, was woven to enmesh judge, jury, and public. burr was instantly upon his feet denouncing in his quiet but authoritative manner the "attempt to intimidate" nicholas as "a contrivance of some of [his] enemies for the purpose of irritating" the hot-blooded republican politician "and increasing the public prejudice against [burr]; since it was calculated to throw suspicion on [his] cause." neither he nor his friends had ever "sanctioned" such an act; they were wholly ignorant of it, and viewed it "with indignation."[ ] mr. joseph eggleston, another of the grand jurors, now asked to be excused because he had declared his belief of burr's guilt; but he admitted, in answer to marshall's questions, that he could act justly in the impending investigation. burr said that he would not object to eggleston: "the industry which has been used through this country [virginia] to prejudice my cause, leaves me very little chance, indeed, of an impartial jury." eggleston's "candour ... in excepting to himself" caused burr to hope that he would "endeavour to be impartial." but let marshall decide--burr would be "perfectly passive."[ ] the scrupulous grand juror was retained. john randolph and dr. william foushee were then added to the grand jury panel and marshall appointed randolph foreman.[ ] he promptly asked to be excused because of his "strong prepossession." "really," observed burr, "i am afraid we shall not be able to find any man without this prepossession." marshall again stated "that a man must not only have formed but declared an opinion in order to excuse him from serving on the jury." so randolph was sworn as foreman, the oath administered to all, and at last the grand jury was formed.[ ] marshall then instructed the jury, the substance of his charge being to the same effect as his opinion in the case of bollmann and swartwout. burr asked the chief justice also to advise the men who were to decide the question of his indictment "as to the admissability of certain evidence" which he supposed hay would lay before them. the district attorney objected to any favor being shown burr, "who," he declared, "stood on the same footing with every other man charged with crime." for once burr unleashed his deep but sternly repressed feeling: "would to god," he cried, his voice vibrant with emotion, "that i did stand on the same ground with every other man. this is the first time [since the military seizure] that i have been permitted to enjoy the rights of a citizen. how have i been brought hither?" marshall checked this passionate outburst: it was not proper, he admonished both hay and burr, to "go into these digressions." his composure restored, burr insisted that he should be accorded "the same privileges and rights which belonged to every other citizen." he would not now urge his objections to marshall's opinion in the bollmann-swartwout case;[ ] but he pointed out "the best informed juryman might be ignorant of many points ... relating to testimony, ... for instance, as to the article of papers," and he wished marshall to inform the jury on these matters of law. a brief, sharp debate sprang up, during which burr's counsel spoke of the "host of prejudices raised against [their] client," taunted hay with his admission "that there was no man who had not formed an opinion," and denounced "the activity of the government."[ ] upon hay's pledging himself that he would submit no testimony to the grand jury "without notice being first given to colonel burr and his counsel," marshall adjourned the court that the attorneys might prepare for "further discussion." the government was not ready to present any testimony on either the following day or on monday because its principal witness, general wilkinson, had not arrived. hay now sent jefferson his first report of the progress of the case. burr had steadily been making friends, and this irritated the district attorney more than the legal difficulties before him. "i am surprised, and afflicted, when i see how much, and by how many, this man has been patronised and supported." hay assured jefferson, however, that he would "this day move to commit him for treason."[ ] accordingly, he announced in the presence of the grand jury that he would again ask the court to imprison burr on that accusation. in order, he said, that the impropriety of mentioning the subject in their presence might be made plain, burr moved that the grand jury be withdrawn. marshall sustained the motion; and after the grand jury had retired, hay formally moved the court to order burr's incarceration upon the charge of treason.[ ] burr's counsel, surprised and angered, loudly complained that no notice had been given them. with a great show of generosity, hay offered to delay his motion until the next day. "not a moment's postponement," shouted botts, his fighting nature thoroughly aroused. hay's "extraordinary application," he said, was to place upon the court the functions of the grand jury. burr wanted no delay. his dearest wish was to "satisfy his country ... and even his prosecutors, that he is innocent." was ever a man so pursued? he had been made the victim of unparalleled military despotism; his legal rights had been ignored; his person and papers unlawfully seized. the public had been excited to anger. through newspaper threats and "popular clamor" attempts had been made to intimidate every officer of the court. consider "the multitude around us"--they must not be further infected "with the poison already too plentifully infused." did hay mean to "open the case more fully?" inquired marshall. no, answered hay; but wilkinson's arrival in virginia might be announced before he reached richmond. who could tell the effect on burr of such dread tidings? the culprit might escape; he must be safely held.[ ] "the bets were against burr that he would abscond, should w. come to richmond."[ ] if wilkinson is so important a witness, "why is he not here?" demanded wickham. everybody knew that "a set of busy people ... are laboring to ruin" burr. "the press, from one end of the continent to the other, has been enlisted ... to excite prejudices" against him. let the case be decided upon "the evidence of sworn witnesses" instead of "the floating rumours of the day." did the government's counsel wish that "the multitude around us should be prejudiced by garbled evidences?" wickham avowed that he could not understand hay's motives, but of this he was sure--that if, thereafter, the government wished to oppress any citizen, drag him by military force over the country, prejudice the people against him, it would "pursue the very same course which has now been taken against colonel burr." the prosecution admitted that it had not enough evidence to lay before the grand jury, yet they asked to parade what they had before the court. why?--"to nourish and keep alive" the old prejudices now growing stale.[ ] wirt answered at great length. he understood wickham's purpose, he said. it was to "divert the public attention from aaron burr," and "shift the popular displeasure ... to another quarter." wickham's speech was not meant for the court, exclaimed wirt, but for "the people who surround us," and so, of course, marshall would not heed it. burr's counsel "would convert this judicial inquiry into a political question ... between thomas jefferson and aaron burr." not to be outdone by his gifted associate, hay poured forth a stream of words: "why does he [burr] turn from defending himself to attack the administration?" he asked. he did not answer his own question, but edmund randolph did: "an order has been given to treat colonel burr as an outlaw, and to burn and destroy him and his property." jefferson, when requested, had furnished the house information;--"would to god he had stopped here, as an executive officer ought to have done!" but instead he had also pronounced burr guilty--an opinion calculated to affect courts, juries, the people. wickham detailed the treatment of burr, "the only man in the nation whose rights are not secure from violation."[ ] burr himself closed this unexpected debate, so suddenly thrust upon his counsel and himself. his speech is a model of that simple, perspicuous, and condensed statement of which he was so perfectly the master. he presented the law, and then, turning to hay, said that two months previous the district attorney had declared that he had enough evidence to justify the commitment, and surely he must have it now. nearly half a year had elapsed since jefferson had "declared that there was a crime," and yet, even now, the government was not ready. nevertheless, the court was again asked to imprison him for an alleged offense for which the prosecution admitted it had not so much as the slight evidence required to secure his indictment by the grand jury. were the government and he "on equal terms?" far from it. "the united states [could] have compulsory process" to obtain affidavits against him but he had "no such advantage." so the prosecution demanded his imprisonment on _ex parte_ evidence which would be contradicted by his own evidence if he could adduce it. worse still! the government affidavits against him "are put into the newspapers, and they fall into the hands of the grand jury." meanwhile, he was helpless. and now the opinion of the court was also to be added to the forces working to undo him. wirt and hay had charged his counsel "with declamation against the government." certainly nobody could attribute "declamation" to him; but, said burr, his restrained voice tense with suppressed emotion, "no government is so high as to be beyond the reach of criticism"--that was a fundamental principle of liberty. this was especially true when the government prosecuted a citizen, because of "the vast disproportion of means which exists between it and the accused." and "if ever there was a case which justified this vigilance, it is certainly the present one"; let marshall consider the "uncommon activity" of the administration. burr would, he said, "merely state a few" of the instances of "harrassing, ... contrary to law" to which he had been subjected. his "friends had been every where seized by the military authority," dragged before "particular tribunals," and forced to give testimony; his papers taken; orders to kill him issued; post-offices broken open and robbed--"nothing seemed too extravagant to be forgiven by the amiable morality of this government." yet it was for milder conduct that americans rightly condemned "european despotisms." the president was a great lawyer; surely "he ought to know what constitutes war. six months ago he proclaimed that there was a civil war. and yet, for six months they have been hunting for it and cannot find one spot where it existed. there was, to be sure, a most terrible war in the newspapers; but no where else." he had been haled before the court in kentucky--and no proof; in mississippi--and no proof. the spaniards actually invaded american territory--even then there was no war. thus early the record itself discloses the dramatic, and, for marshall, perilous, conditions under which this peculiar trial was to be conducted. the record makes clear, also, the plan of defense which burr and his counsel were forced to adopt. they must dull the edge of public opinion sharpened to a biting keenness by jefferson. they must appeal to the people's hatred of oppression, fear of military rule, love of justice. to do this they must attack, attack, always attack. they must also utilize every technical weapon of the law. at another time and place they could have waived, to burr's advantage, all legal rights, insisted upon his indictment, and gone to trial, relying only upon the evidence. but not in the virginia of , with the mob spirit striving to overawe jury and court, and ready to break out in violent action--not at the moment when the reign of thomas jefferson had reached the highest degree of popular idolatry. just as hay, wirt, and macrae generally spoke to the spectators far more than to the bench, so did wickham, randolph, botts, and martin.[ ] both sides so addressed the audience that their hearers were able to repeat to the thousands who could not get into the hall what had been said by the advocates. from the very first the celebrated trial of aaron burr was a contest for the momentary favor of public opinion; and, in addition, on the part of burr, an invoking of the law to shield him from that popular wrath which the best efforts of his defenders could not wholly appease. marshall faced a problem of uncommon difficulty. it was no small matter to come between the populace and its prey--no light adventure to brave the vengeance of thomas jefferson. not only his public repute[ ]--perhaps even his personal safety[ ] and his official life[ ]--but also the now increasing influence and prestige of the national judiciary were in peril. however, he must do justice no matter what befell--he must, at all hazards, pronounce the law truly and enforce it bravely, but with elastic method. he must be not only a just, but also an understanding, judge. when court opened next morning, marshall was ready with a written opinion. concisely he stated the questions to be decided: had the court the power to commit burr, and, if so, ought the circumstances to restrain the exercise of it? neither side had made the first point, and marshall mentioned it only "to show that it [had] been considered." briefly he demonstrated that the court was clothed with authority to grant hay's motion. should that power, then, be exerted? marshall thought that it should. the government had the right to ask burr's incarceration at any time, and it was the duty of the court to hear such a motion. thus far spoke marshall the judge. in the closing sentences the voice of the politician was heard: "the court perceives and regrets that the result of this motion may be publications unfavourable to the justice, and to the right decision of the case"; but this must be remedied "by other means than by refusing to hear the motion." every honest and intelligent man extremely deplored "any attempt ... to prejudice the public judgment, and to try any person," not by the law and the evidence, but "by public feelings which may be and often are artificially excited against the innocent, as well as the guilty, ... a practice not less dangerous than it is criminal." nevertheless he could not "suppress motions, which either party may have a legal right to make." so, if hay persisted, he might "open his testimony."[ ] while marshall, in richmond, was reading this opinion, jefferson, in washington, was writing directions to hay. he was furious at "the criminal and voluntary retirement" of giles and nicholas from the grand jury "with the permission of the court." the opening of the prosecution had certainly begun "under very inauspicious circumstances." one thing was clear: "it becomes our duty to provide that full testimony shall be laid before the legislature, and through them the public." if the grand jury should indict burr, then hay must furnish jefferson with all the evidence, "taken as verbatim as possible." should burr not be indicted, and no trial held and no witnesses questioned in court, then hay must "have every man privately examined by way of affidavit," and send jefferson "the whole testimony" in that form. "this should be done before they receive their compensation, that they may not evade examination. go into any expense necessary for this purpose,[ ] & meet it from the funds provided to the attorney general for the other expenses."[ ] marshall's decision perplexed hay. it interfered with his campaign of publicity. if only marshall had denied his motion, how effectively could that incident have been used on public sentiment! but now the republican press could not exclaim against marshall's "leniency" to "traitors" as it had done. the people were deprived of fresh fuel for their patriotic indignation. jefferson would be at a loss for a new pretext to arouse them against the encroachments of the courts upon their "liberties." hay strove to retrieve the government from this disheartening situation. he was "struck," he said, with marshall's reference to "publications." to avoid such newspaper notoriety, he would try to arrange with burr's counsel for the prisoner's appearance under additional bail, thus avoiding insistence upon the government's request for the imprisonment of the accused. would marshall adjourn court that this amicable arrangement might be brought about? marshall would and did. but next day found hay unrelieved; burr's counsel had refused, in writing, to furnish a single dollar of additional bail. to his intense regret, hay lamented that he was thus forced to examine his witnesses. driven to this unpleasant duty, he would follow the "chronological order--first the depositions of the witnesses who were absent, and afterwards those who were present."[ ] the alert wickham demanded "strict legal order." the government must establish two points: the perpetration of an overt act, and "that colonel burr was concerned in it."[ ] hay floundered--there was one great plot, he said, the two parts of it "intimately blended"; the projected attack on spain and the plot to divide the union were inseparable--he must have a free hand if he were to prove this wedded iniquity. was burr afraid to trust the court? far from it, cried wickham, "but we do fear to prejudicate the mind of the grand jury.... all propriety and decorum have been set at naught; every idle tale which is set afloat has been eagerly caught at. the people here are interested by them; and they circulate all over the country."[ ] marshall interrupted: "no evidence certainly has any bearing ... unless the overt act be proved." hay might, however, "pursue his own course." a long altercation followed. botts made an extended speech, in the course of which he discredited the government's witnesses before they were introduced. they were from all over the country, he said, their "names, faces and characters, are alike unknown to colonel burr." to what were they to testify? burr did not know--could not possibly ascertain. "his character has long been upon public torture; and wherever that happens ... the impulses to false testimony are numerous. sometimes men emerge from the sinks of vice and obscurity into patronage and distinction by circulating interesting tales, as all those of the marvelous kind are. others, from expectation of office and reward, volunteer; while timidity, in a third class, seeks to guard against the apprehended danger, by magnifying trifling stories of alarm.... when they are afterwards called to give testimony, perjury will not appal them, if it be necessary to save their reputations." therefore, reasoned botts--and most justly--strict rules of evidence were necessary.[ ] hay insisted that wilkinson's affidavit demonstrated burr's intentions. that "goes for nothing," said marshall, "if there was no other evidence to prove the overt act." therefore, "no part of it [was] admissible at this time."[ ] thrice marshall patiently reminded government counsel that they charged an overt act of treason and must prove it.[ ] hay called peter taylor, blennerhassett's former gardener, and jacob allbright, once a laborer on the eccentric irishman's now famous island. both were illiterate and in utter terror of the government. allbright was a dutchman who spoke english poorly; taylor was an englishman; and they told stories equally fantastic. taylor related that mrs. blennerhassett had sent him to kentucky with a letter to burr warning him not to return to the island; that burr was surprised at the people's hostility; that blennerhassett, who was also in kentucky, confided they were going to take mexico and make burr king, and theodosia queen when her father died; also that burr, blennerhassett, and their friends had bought "eight hundred thousand acres of land" and "wanted young men to settle it," and that any of these who should prove refractory, he [blennerhassett] said, "by god, ... i will stab"; that blennerhassett had also said it would be a fine thing to divide the union, but burr and himself could not do it alone. taylor further testified that blennerhassett once sent him with a letter to a dr. bennett, who lived in ohio, proposing to buy arms in his charge belonging to the united states--if bennett could not sell, he was to tell where they were, and blennerhassett "would steal them away in the night"; that his employer charged him "to get [the letter] back and burn it, for it contained high treason"; and that the faithful taylor had done this in bennett's presence. taylor narrated the scene on the island when blennerhassett and thirty men in four boats fled in the night: some of the men had guns and there was some powder and lead.[ ] jacob allbright told a tale still more marvelous. soon after his employment, mrs. blennerhassett had come to this dull and ignorant laborer, while he was working on a kiln for drying corn, and confided to him that burr and her husband "were going to lay in provisions for an army for a year"; that blennerhassett himself had asked allbright to join the expedition which was going "to settle a new country." two men whom the dutch laborer met in the woods hunting had revealed to him that they were "burr's men," and had disclosed that "they were going to take a silver mine from the spanish"; that when the party was ready to leave the island, general tupper of ohio had "laid his hands upon blennerhassett and said, 'your body is in my hands in the name of the commonwealth,'" whereupon "seven or eight muskets [were] levelled" at the general; that tupper then observed he hoped they would not shoot, and one of the desperadoes replied, "i'd as lieve as not"; and that tupper then "changed his speech," wished them "to escape safe," and bade them godspeed. allbright and taylor were two of the hundreds to whom the government's printed questions had been previously put by agents of the administration. in his answers to these, allbright had said that the muskets were pointed at tupper as a joke.[ ] both taylor and he swore that burr was not on the island when blennerhassett's men assembled there and stealthily departed in hasty flight. to the reading of the deposition of jacob dunbaugh, burr's counsel strenuously objected. it was not shown that dunbaugh himself could not be produced; the certification of the justice of the peace, before whom the deposition was taken, was defective. for the remainder of the day the opposing lawyers wrangled over these points. marshall adjourned court and "took time to consider the subject till the next day"; when, in a long and painfully technical opinion, he ruled that dunbaugh's affidavit could not be admitted because it was not properly authenticated.[ ] may , when the court again convened, was made notable by an event other than the reading of the unnecessarily long opinion which marshall had written during the night: the crimson-faced, bellicose superman of the law, luther martin, appeared as one of burr's counsel.[ ] the great lawyer had formed an ardent admiration and warm friendship for burr during the trial of the chase impeachment,[ ] and this had been intensified when he met theodosia, with whom he became infatuated.[ ] he had voluntarily come to his friend's assistance, and soon threw himself into the defense of burr with all the passion of his tempestuous nature and all the power and learning of his phenomenal intellect. [illustration: luther martin] after vexatious contendings by counsel as to whether burr should give additional bail,[ ] marshall declared that "as very improper effects on the public mind [might] be produced," he wished that no opinion would be required of him previous to the action of the grand jury; and that the "appearance of colonel burr could be secured without ... proceeding in this inquiry." burr denied the right of the court to hold him on bail, but said that if marshall was "embarrassed," he voluntarily would furnish additional bail, "provided it should be understood that no opinion on the question even of probable cause was pronounced by the court."[ ] marshall agreed; and burr with four sureties, among whom was luther martin, gave bond for ten thousand dollars more.[ ] day after day, court, grand jury, counsel, and spectators awaited the coming of wilkinson. the government refused to present any testimony to the grand jury until he arrived, although scores of witnesses were present. andrew jackson was very much in town, as we have seen. so was commodore truxtun. and "general" william eaton was also on hand, spending his time, when court was not in session, in the bar-rooms of richmond. wearing a "tremendous hat," clad in gay colored coat and trousers, with a flaming turkish belt around his waist, eaton was already beginning to weaken the local hatred of burr by his loud blustering against the quiet, courteous, dignified prisoner.[ ] also, at gambling-tables, and by bets that burr would be convicted, the african hero was making free with the ten thousand dollars paid him by the government soon after he made the bloodcurdling affidavit[ ] with which jefferson had so startled congress and the country. while proceedings lagged, marshall enjoyed the dinners and parties that, more than ever, were given by richmond society. on one of these occasions that eminent and ardent republican jurist, st. george tucker, was present, and between him and marshall an animated discussion grew out of the charge that burr had plotted to cause the secession of the western states; it was a forecast of the tremendous debate that was to end only at appomattox. "judge tucker, though a violent democrat," records blennerhassett, "seriously contended ... with judge marshall ... that any state in the union is at any time competent to recede from the same, though marshall strongly opposed this doctrine."[ ] hay wrote jefferson of the slow progress of the case, and the president "hastened" to instruct his district attorney: if the grand jury should refuse to indict burr, hay must not deliver the pardon to bollmann; otherwise, "his evidence is deemed entirely essential, & ... his pardon is to be produced before he goes to the book." jefferson had become more severe as he thought of bollmann, and now actually directed hay to show, in open court, to this new object of presidential displeasure, the "sacredly confidential" statement given jefferson under pledge of the latter's "word of honor" that it should never leave his hand. hay was directed to ask bollmann whether "it was not his handwriting."[ ] with the same ink on his pen the president wrote his son-in-law that he had heard only of the first day of the trial, but was convinced that marshall meant to do all he could for burr. marshall's partiality showed, insisted jefferson, "the original error of establishing a judiciary independent of the nation, and which, from the citadel of the law can turn it's guns on those they were meant to defend, & controul & fashion their proceedings to it's own will."[ ] hay quickly answered jefferson: the trial had "indeed commenced under inauspicious circumstances," and doubtless these would continue to be unfavorable. nobody could predict the outcome. hay was so exhausted and in such a state of mind that he could not describe "the very extraordinary occurrences in this very extraordinary examination." burr's "partizans" were gloating over the failure of wilkinson to arrive. bollmann would neither accept nor reject the pardon; he was "as unprincipled as his leader." marshall's refusal to admit dunbaugh's affidavit was plainly illegal--"his eyes [were] almost closed" to justice.[ ] jefferson now showered hay with orders. the reference in argument to marshall's opinion in marbury _vs._ madison greatly angered him: "stop ... citing that case as authority, and have it denied to be law," he directed hay, and gave him the arguments to be used against it. an entire letter is devoted to this one subject: "i have long wished for a proper occasion to have the gratuitous opinion in marbury v. madison brought before the public, & denounced as not law; & i think the present a fortunate one, because it occupies such a place in the public attention." hay was openly to declare that the president rejected marshall's opinion in that case as having been "given extra-judicially & against law," and that the reverse of it would be jefferson's "rule of action." if necessary, hay might state that the president himself had said this.[ ] back and forth went letters from hay to jefferson and from jefferson to hay,[ ] the one asking for instructions and the other eagerly supplying them. to others, however, the president explained that he could take no part in any judicial proceeding, since to do so would subject him to "just censure."[ ] in spite of the abundance of government witnesses available, the prosecution refused to go on until the redoubtable savior of his country had arrived from new orleans. twice the grand jury had to be dismissed for several days, in order, merrily wrote washington irving, "that they might go home, see their wives, get their clothes washed, and flog their negroes."[ ] a crowd of men ready to testify was held. the swarms of spectators waited with angry impatience. "if the great hero of the south does not arrive, it is a chance if we have any trial this term,"[ ] commented irving. during this period of inaction and suspense, suddenly arose one of the most important and exciting questions of the entire trial. on june , while counsel and court were aimlessly discussing wilkinson's journey to richmond, burr arose and said that he had a "proposition to submit" to the court. the president in his message to congress had made mention of the letter and other papers dated october , which he had received from wilkinson. it had now become material that this letter should be produced in court. moreover, since the government had "attempted to infer certain intentions on [his] part, from certain transactions," such as his flight from mississippi, it had become necessary to prove the conditions that forced him to attempt that escape. vital among these were orders of the government to the army and navy "to destroy" burr's "person and property." he had seen these orders in print,[ ] and an officer had assured him that such instructions had actually been issued. it was indispensable that this be established. the secretary of the navy had refused to allow him or his counsel to inspect these orders. "hence," maintained burr, "i feel it necessary ... to call upon [the court] to issue a subpoena to the president of the united states, with a clause, requiring him to produce certain papers; or in other words, to issue the subpoena _duces tecum_." if hay would agree to produce these documents, the motion would not be made.[ ] hay was sadly confused. he would try to get all the papers wanted if marshall would say that they were material. how, asked marshall, could the court decide that question without inspecting the papers? "why ... issue a subpoena to the president?" inquired hay. because, responded marshall, "in case of a refusal to send the papers, the officer himself may be present to show cause. this subpoena is issued only where fears of this sort are entertained." counsel on both sides became angry. hay denied the authority of the court to issue such a writ. marshall called for argument, because, he said, "i am not prepared to give an opinion on this point."[ ] thus arose the bitter forensic struggle that preceded marshall's historic order to jefferson to come into court with the papers demanded, or to show cause why he should not do so. hay instantly dispatched the news to jefferson; he hoped the papers would be "forwarded without delay," because "detention of them will afford [burr] pretext for clamor." besides, "l. martin has been here a long time, perfectly inactive"; he was yearning to attack jefferson and this would "furnish a topic."[ ] the president responded with dignified caution: "reserving the necessary right of the president of the u s to decide, independently of all other authority, what papers, coming to him as president, the public interests permit to be communicated, & to whom, i assure you of my readiness under that restriction, voluntarily to furnish on all occasions, whatever the purposes of justice may require." he had given the wilkinson letter, he said, to the attorney-general, together with all other documents relating to burr, and had directed the secretary of war to search the files so that he (jefferson) could "judge what can & ought to be done" about sending any order of the department to richmond.[ ] when marshall opened court on june , burr made affidavit that the letters and orders might be material to his defense. hay announced that he had written jefferson to send the desired papers and expected to receive them within five days. they could not, however, be material, and he did not wish to discuss them. martin insisted that the papers be produced. wickham asked what hay was trying to do--probably trying to gain time to send to washington for instructions as to how the prosecution should now act. was not "an accused man ... to obtain witnesses in his behalf?" never had the denial of such a right been heard of "since the declaration of american independence." the despotic treatment of burr called aloud not only for the court's protection of the persecuted man, but "to the protection of every citizen in the country as well."[ ] so it seemed to that discerning fledgling author, washington irving. "i am very much mistaken," he wrote, "if the most underhand ... measures have not been observed toward him. he, however, retains his serenity."[ ] luther martin now took the lead: was jefferson "a kind of sovereign?" no! "he is no more than a servant of the people." yet who could tell what he would do? in this case his cabinet members, "under presidential influence," had refused copies of official orders. in another case "the officers of the government screened themselves ... under the sanction of the president's name."[ ] the same might be done again; for this reason burr applied "directly to the president." the choleric legal giant from maryland could no longer restrain his wrath: "this is a peculiar case," he shouted. "the president has undertaken to prejudice my client by declaring, that 'of his guilt there can be no doubt.' he has assumed to himself the knowledge of the supreme being himself, and pretended to search the heart of my highly respected friend. he has proclaimed him a traitor in the face of that country, which has rewarded him. he has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend." "and would this president of the united states, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?" that was a denial of "a sacred principle. whoever withholds, wilfully, information that would save the life of a person, charged with a capital offence, is substantially a murderer, and so recorded in the register of heaven." did jefferson want burr convicted? impossible thought! "would the president of the united states give his enemies ... the proud opportunity of saying that colonel burr is the victim of anger, jealousy and hatred?" interspersed with these outbursts of vitriolic eloquence, martin cited legal authorities. never, since the days of patrick henry, had richmond heard such a defiance of power.[ ] alexander macrae did his best to break the force of martin's impetuous attack. the present question was "whether this court has the right to issue a subpoena _duces tecum_, addressed to the president of the united states." macrae admitted that "a subpoena may issue against him as well as against any other man." still, the president was not bound to disclose "confidential communications." had not marshall himself so ruled on that point in the matter of attorney-general lincoln at the hearing in marbury _vs._ madison?[ ] botts came into the fray with his keen-edged sarcasm. hay and wirt and macrae had "reprobated" the action of chase when, in the trial of cooper, that judge had refused to issue the writ now asked for; yet now they relied on that very precedent. "i congratulate them upon their dereliction of the old democratic opinions."[ ] wirt argued long and brilliantly. what were the "orders," military and naval, which had been described so thrillingly? merely to "apprehend aaron burr, and _if ... necessary ... to destroy his boats_." even the "sanguinary and despotic" orders depicted by burr and his counsel would have been a "great and glorious virtue" if burr "was aiming a blow at the vitals of our government and liberty." martin's "fervid language" had not been inspired merely by devotion to "his honourable friend," said wirt. it was the continued pursuit of a "policy settled ... before mr. martin came to richmond." burr's counsel, on the slightest pretext, "flew off at a tangent ... to launch into declamations against the government, exhibiting the prisoner continually as a persecuted patriot: a russell or a sidney, bleeding under the scourge of a despot, and dying for virtue's sake!" he wished to know "what gentlemen can intend, expect, or hope, from these perpetual philippics against the government? do they flatter themselves that this court feel political prejudices which will supply the place of argument and of innocence on the part of the prisoner? their conduct amounts to an insinuation of the sort." what would a foreigner "infer from hearing ... the judiciary told that the administration are 'blood hounds,' hunting this man with a keen and savage thirst for blood," and witnessing the court receive this language "with all complacency?" surely no conclusion could be made very "honourable to the court. it would only be inferred, while they are thus suffered to roll and luxuriate in these gross invectives against the administration, that they are furnishing the joys of a mahomitan paradise to the court as well as to their client."[ ] here was as bold a challenge to marshall as ever erskine flung in the face of judicial arrogance; and it had effect. before adjourning court, marshall addressed counsel and auditors: he had not interfered with assertions of counsel, made "in the heat of debate," although he had not approved of them. but now that wirt had made "a pointed appeal" to the court, and the judges "had been called upon to support their own dignity, by preventing the government from being abused," he would express his opinion. "gentlemen on both sides had acted improperly in the style and spirit of their remarks; they had been to blame in endeavoring to excite the prejudices of the people; and had repeatedly accused each other of doing what they forget they have done themselves." marshall therefore "expressed a wish that counsel ... would confine themselves on every occasion to the point really before the court; that their own good sense and regard for their characters required them to follow such a course." he "hoped that they would not hereafter deviate from it."[ ] his gentle admonition was scarcely heeded by the enraged lawyers. wickham's very "tone of voice," exclaimed hay, was "calculated to excite irritation, and intended for the multitude." of course, jefferson _could_ be subpoenaed as a witness; that was in the discretion of the court. but marshall ought not to grant the writ unless justice required it. the letter might be "of a private nature"; if so, it ought not to be produced. martin's statement that burr had a right to resist was a "monstrous ... doctrine which would have been abhorred even in the most turbulent period of the french revolution, by the jacobins of !" suppose, said hay, that jefferson had been "misled," and that "burr was peaceably engaged in the project of settling his washita lands!" did that give him "a right to resist the president's orders to stop him?" never! "this would be treason." the assertion of the right to disobey the president was the offspring of "a new-born zeal of some of the gentlemen, in defence of the rights of man."[ ] why await the arrival of wilkinson? asked edmund randolph. what was expected of "that great accomplisher of all things?" apparently this: "he is to support ... the _sing-song_ and the ballads of treason and conspiracy, which we have heard delivered from one extremity of the continent to the other. the funeral pile of the prosecution is already prepared by the hands of the public attorney, and nothing is wanting to kindle the fatal blaze but the torch of james wilkinson," who "is to officiate as the high priest of this human sacrifice.... wilkinson will do many things rather than disappoint the wonder-seizing appetite of america, which for months together he has been gratifying by the most miraculous actions." if burr were found guilty, wilkinson would stand acquitted; if not, then "the character, the reputation, every thing ... will be gone for ever from general wilkinson." randolph's speech was a masterpiece of invective. "the president testifies, that wilkinson has testified to him fully against burr; then let that letter be produced. the president's declaration of burr's guilt is unconstitutional." it was not the business of the president "to give opinions concerning the guilt or innocence of any person." directly addressing marshall, randolph continued: "with respect to your exhortation," that burr's appeal was to the court alone, "we demand justice only, and if you cannot exorcise the demon of prejudice, you can chain him down to law and reason, and then we shall have nothing to fear."[ ] the audacious martin respected marshall's appeal to counsel even less than hay and randolph had done. the prosecution had objected to the production of wilkinson's mysterious letter to jefferson because it might contain confidential statements. "what, sir," he shouted, "shall the cabinet of the united states be converted into a lion's mouth of venice, or into a _repertorium_ of the inquisition? shall envy, hatred, and all the malignant passions pour their poison into that cabinet against the character and life of a fellow citizen, and yet that cabinet not be examined in vindication of that character and to protect that life?" genuine fury shook martin. "is the life of a man, lately in high public esteem ... to be endangered for the sake of punctilio to the president?" obey illegal orders! "if every order, however arbitrary and unjust, is to be obeyed, we are slaves as much as the inhabitants of turkey. if the presidential edicts are to be the supreme law, and the officers of the government have but to register them, as formerly in france, ... we are as subject to despotism, as ... the subjects of the former '_grands monarques_.'"[ ] now occurred as strange a mingling of acrimony and learning as ever enlightened and enlivened a court. burr's counsel demanded that marshall deliver a supplementary charge to the grand jury. marshall was magnificently cautious. he would, he said, instruct the jury as confused questions arose. on further reflection and argument--marshall's dearly beloved argument--he wrote additional instructions,[ ] but would not at present announce them. there must be an actual "levying of war"; the overt act must be established; no matter what suspicions were entertained, what plans had been formed, what enterprises had been projected, there could be "no treason without an overt act."[ ] in such would-and-would-not fashion marshall contrived to waive this issue for the time being. then he delivered that opinion which proved his courage, divided republicans, stirred all america, and furnished a theme of disputation that remains fresh to the present day. he decided to grant burr's demand that jefferson be called into court with the papers asked for. the purpose of the motion was, said marshall, to produce copies of the army and navy orders for the seizure of burr, the original of wilkinson's letter to jefferson, and the president's answer. to accomplish this object legally, burr had applied for the well-known subpoena _duces tecum_ directed to the president of the united states. the objection that until the grand jury had indicted burr, no process could issue to aid him to obtain testimony, was, marshall would not say new elsewhere, but certainly it had never before been heard of in virginia. "so far back as any knowledge of our jurisprudence is possessed, the uniform practice of this country [virginia] has been, to permit any individual ... charged with any crime, to prepare for his defence and to obtain the process of the court, for the purpose of enabling him so to do." an accused person must expect indictment, and has a right to compel the attendance of witnesses to meet it. it was perhaps his duty to exercise that right: "the genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial." in all criminal prosecutions the constitution, marshall pointed out, guarantees to the prisoner "a speedy and public trial, and to compulsory process for obtaining witnesses in his favour." the courts must hold this "sacred," must construe it "to be something more than a dead letter." moreover, the act of congress undoubtedly contemplated "that, in all capital cases, the accused shall be entitled to process before indictment found." thus "immemorial usage," the language of the constitution, the national statute, all combined to give "any person, charged with a crime in the courts of the united states, ... a right, before, as well as after indictment, to the process of the court to compel the attendance of his witnesses." but could "a subpoena _duces tecum_ be directed to the president of the united states?" if it could, ought it to be "in this case"? neither in the constitution nor in an act of congress is there any exception whatever to the right given all persons charged with crime to compel the attendance of witnesses. "no person could claim an exemption." true, in great britain it was considered "to be incompatible with his dignity" for the king "to appear under the process of the court." but did this apply to the president of the united states? marshall stated the many differences between the status of the british king and that of the american president. the only possible ground for exempting the president "from the general provisions of the constitution" would be, of course, that "his duties ... demand his whole time for national objects. but," continued marshall, "it is apparent, that this demand is not unremitting"--a statement at which jefferson took particular offense.[ ] should the president be so occupied when his presence in court is required, "it would be sworn on the return of the subpoena, and would rather constitute a reason for not obeying the process of the court, than a reason against its being issued." to be sure, any court would "much more cheerfully" dispense with the duty of issuing a subpoena to the president than to perform that duty; "but, if it be a duty, the court can have no choice" but to perform it. if, "as is admitted by counsel for the united states," the president may be "summoned to give his personal attendance to testify," was that power nullified because "his testimony depends on a paper in his possession, not on facts which have come to his knowledge otherwise than by writing?" such a distinction is "too much attenuated to be countenanced in the tribunals of a just and humane nation."[ ] the character of the paper desired as evidence, and not "the character of the person who holds it," determines "the propriety of introducing any paper ... as testimony." it followed, then, that "a subpoena _duces tecum_ may issue to any person to whom an ordinary subpoena may issue." the only difference between the two writs is that one requires only the attendance of the witness, while the other directs also "bringing with him a paper in his custody." in many states the process of subpoena _duces tecum_ issues of course, and without any action of the judge. in virginia, however, leave of the court is required; but "no case exists ... in which the motion ... has been denied or in which it has been opposed," when "founded on an affidavit." the chief justice declared that he would not issue the writ if it were apparent that the object of the accused in applying for it was "not really in his own defence, but for purposes which the court ought to discountenance. the court would not lend its aid to motions obviously designed to manifest disrespect to the government; but the court has no right to refuse its aid to motions for papers to which the accused may be entitled, and which may be material in his defence." if this was true in the matter of burr's application, "would it not be a blot in the page, which records the judicial proceedings of this country, if, in a case of such serious import as this, the accused should be denied the use" of papers on which his life might depend? marshall carefully examined a case cited by the government[ ] in which justice paterson had presided, at the same time paying to the memory of the deceased jurist a tribute of esteem and affection. he answered with tedious particularity the objections to the production of wilkinson's letter to jefferson, and then referred to the "disrespect" which the government counsel had asserted would be shown to the president if marshall should order him to appear in court with the letters and orders. "this court feels many, perhaps peculiar motives, for manifesting as guarded respect for the chief magistrate of the union as is compatible with its official duties." but, declared marshall, "to go beyond these ... would deserve some other appellation than the term respect." if the prosecution should end, "_as is expected_" by the government, those who withheld from burr any paper necessary to his defense would, of course, bitterly regret their conduct. "i will not say, that this circumstance would ... tarnish the reputation of the government; but i will say, that it would justly tarnish the reputation of the court, which had given its sanction to its being withheld." with all that impressiveness of voice and manner which, on occasion, so transformed marshall, he exclaimed: "might i be permitted to utter one sentiment, with respect to myself, it would be to deplore, most earnestly, the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as i should feel, could i declare, on the information now possessed, that the accused is not entitled to the letter in question, if it should be really important to him." let a subpoena _duces tecum_, therefore ruled the chief justice, be issued, directed to thomas jefferson, president of the united states.[ ] nothing that marshall had before said or done so highly excited counsel for the prosecution as his assertion that they "expected" burr's conviction. the auditors were almost as deeply stirred. considering the peculiarly mild nature of the man and his habitual self-restraint, marshall's language was a pointed rebuke, not only to the government's attorneys, but to the administration itself. even marshall's friends thought that he had gone too far. instantly macrae was on his feet. he resented marshall's phrase, and denied that the government or its counsel "wished" the conviction of burr--such a desire was "completely abhorrent to [their] feelings." macrae hoped that marshall did not express such an opinion deliberately, but that it had "accidentally fallen from the pen of [his] honor." marshall answered that he did not intend to charge the administration or its attorneys with a desire to convict burr "whether he was guilty or innocent"; but, he added dryly, "gentlemen had so often, and so uniformly asserted, that colonel burr was guilty, and they had so often repeated it before the testimony was perceived, on which that guilt could alone be substantiated, that it appeared to him probable, that they were not indifferent on the subject."[ ] hay, in his report to jefferson, gave more space to this incident than he did to all other features of the case. he told the president that marshall had issued the dreaded process and then quoted the offensive sentence. "this expression," he relates, "produced a very strong & very general sensation. the friends of the judge, both personal & political, condemned it. alex^{r.} m^{c}rae rose as soon as he had finished, and in terms mild yet determined, demanded an explanation of it. the judge actually blushed." and, triumphantly continues the district attorney, "he did attempt an explanation.... i observed, with an indifference which was not assumed, that i had endeavored to do my duty, according to my own judgment and feelings, that i regretted nothing that i had said or done, that i should pursue the same course throughout, and that it was a truth, that i cared not what _any man_ said or thought about it." marshall himself was perturbed. "about three hours afterwards," hay tells jefferson, "when the crowd was thinned, the judge acknowledged the impropriety of the expression objected to, & informed us from the bench that he had erased it." the chief justice even apologized to the wrathful hay: "after he had adjourned the court, he descended from the bench, and told me that he regretted the remark, and then by way of apology said, that he had been so pressed for time, that he had never read the opinion, after he had written it." hay loftily adds: "an observation from me that i did not perceive any connection between my declarations & his remark, or how the former could regularly be the cause of the latter, closed the conversation."[ ] hay despondently goes on to say that "there never was such a trial from the beginning of the world to this day." and what should he do about bollmann? that wretch "resolutely refuses his pardon & is determined not to utter a word, if he can avoid it. the pardon lies on the clerks table. the court are to decide whether he is really pardoned or not. martin says he is not pardoned. such are the questions, with which we are worried. if the judge says that he is not pardoned, i will take the pardon back. what shall i then do with him?" the immediate effect of marshall's ruling was the one jefferson most dreaded. for the first time, most republicans approved of the opinion of john marshall. in the fanatical politics of the time there was enough of honest adherence to the american ideal, that all men are equal in the eyes of the law, to justify the calling of a president, even thomas jefferson, before a court of justice. such a militant republican and devotee of jefferson as thomas ritchie, editor of the richmond _enquirer_, the party organ in virginia, did not criticize marshall, nor did a single adverse comment on marshall appear in that paper during the remainder of the trial. not till the final verdict was rendered did ritchie condemn him.[ ] before he learned of marshall's ruling, jefferson had once more written the district attorney giving him well-stated arguments against the issuance of the dreaded subpoena.[ ] when he did receive the doleful tidings, jefferson's anger blazed--but this time chiefly at luther martin, who was, he wrote, an "unprincipled & impudent federal bull-dog." but there was a way open to dispose of him: martin had known all about burr's criminal enterprise. jefferson had received a letter from baltimore stating that this had been believed generally in that city "for more than a twelve-month." let hay subpoena as a witness the writer of this letter--one greybell. something must be done to "put down" the troublesome "bull-dog": "shall l m be summoned as a witness against burr?" or "shall we move to commit l m as _particeps criminis_ with burr? greybell will fix upon him misprision of treason at least ... and add another proof that the most clamorous defenders of burr are all his accomplices." as for bollmann! "if [he] finally rejects his pardon, & the judge decides it to have no effect ... move to commit him immediately for treason or misdemeanor."[ ] but bollmann, in open court, had refused jefferson's pardon six days before the president's vindictively emotional letter was written. after marshall delivered his opinion on the question of the subpoena to jefferson, burr insisted, in an argument as convincing as it was brief, that the chief justice should now deliver the supplementary charge to the grand jury as to what evidence it could legally consider. marshall announced that he would do so on the following monday.[ ] several witnesses for the government were sworn, among them commodore thomas truxtun, commodore stephen decatur, and "general" william eaton. when dr. erich bollmann was called to the book, hay stopped the administration of the oath. bollmann had told the government all about burr's "plans, designs and views," said the district attorney; "as these communications might criminate doctor bollman before the grand jury, the president has communicated to me this pardon"--and hay held out the shameful document. he had already offered it to bollmann, he informed marshall, but that incomprehensible person would neither accept nor reject it. his evidence was "extremely material"; the pardon would "completely exonerate him from all the penalties of the law." and so, exclaimed hay, "in the presence of this court, i offer this pardon to him, and if he refuses, i shall deposit it with the clerk for his use." then turning to bollmann, hay dramatically asked: "will you accept this pardon?" "no, i will not, sir," firmly answered bollmann. then, said hay, the witness must be sent to the grand jury "with an intimation, that he has been pardoned." "it has always been doctor bollman's intention to refuse this pardon," broke in luther martin. he had not done so before only "because he wished to have this opportunity of publicly rejecting it." witness after witness was sworn and sent to the grand jury, hay and martin quarreling over the effect of jefferson's pardon of bollmann. marshall said that it would be better "to settle ... the validity of the pardon before he was sent to the grand jury." again hay offered bollmann the offensive guarantee of immunity; again it was refused; again martin protested. "are you then willing to hear doctor bollman indicted?" asked hay, white with anger. "take care," he theatrically cried to martin, "in what an awful condition you are placing this gentleman." bollmann could not be frightened, retorted martin: "he is a man of too much honour to trust his reputation to the course which you prescribe for him." marshall "would perceive," volunteered the nonplussed and exasperated hay, "that doctor bollman now possessed so much zeal, as even to encounter the risk of an indictment for treason." the chief justice announced that he could not, "at present, declare, whether he be really pardoned or not." he must, he said, "take time to deliberate." hay persisted: "categorically then i ask you, mr. bollman, do you accept your pardon?" "i have already answered that question several times. i say no," responded bollmann. "i repeat, that i would have refused it before, but that i wished this opportunity of publicly declaring it."[ ] bollmann was represented by an attorney of his own, a mr. williams, who now cited an immense array of authorities on the various questions involved. counsel on both sides entered into the discussion. one "reason why doctor bollman has refused this pardon" was, said martin, "that it would be considered as an admission of guilt." but "doctor bollman does not admit that he has been guilty. he does not consider a pardon as necessary for an innocent man. doctor bollman, sir, knows what he has to fear from the persecution of an angry government; but he will brave it all." yes! cried martin, with immense effect on the excited spectators, "the man, who did so much to rescue the marquis la fayette from his imprisonment, and who has been known at so many courts, bears too great a regard for his reputation, to wish to have it sounded throughout europe, that he was compelled to abandon his honour through a fear of unjust persecution." finally the true-hearted and defiant bollmann was sent to the grand jury without having accepted the pardon, and without the legal effect of its offer having been decided.[ ] when the richmond _enquirer_, containing marshall's opinion on the issuance of the subpoena _duces tecum_, reached washington, the president wrote to hay an answer of great ability, in which jefferson the lawyer shines brilliantly forth: "as is usual where an opinion is to be supported, right or wrong, he [marshall] dwells much on smaller objections, and passes over those which are solid.... he admits no exception" to the rule "that all persons owe obedience to subpoenas ... unless it can be produced in his law books." "but," argues jefferson, "if the constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these? the constitution enjoins his [the president's] constant agency in the concerns of . millions of people. is the law paramount to this, which calls on him on behalf of a single one?" let marshall smoke his own tobacco: suppose the sheriff of henrico county should summon the chief justice to help "quell a riot"? under the "general law" he is "a part of the _posse_ of the state sheriff"; yet, "would the judge abandon major duties to perform lesser ones?" or, imagine that a court in the most distant territory of the united states "commands, by subpoenas, the attendance of all the judges of the supreme court. would they abandon their posts as judges, and the interests of millions committed to them, to serve the purposes of a single individual?" the judiciary was incessantly proclaiming its "independence," and asserting that "the leading principle of our constitution is the independence of the legislature, executive and judiciary of each other." but where would be such independence, if the president "were subject to the _commands_ of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?" jefferson vigorously resented marshall's personal reference to him. "if he alludes to our annual retirement from the seat of government, during the sickly season," hay ought to tell marshall that jefferson carried on his executive duties at monticello.[ ] crowded with sensations as the proceedings had been from the first, they now reached a stage of thrilling movement and high color. the long-awaited and much-discussed wilkinson had at last arrived "with ten witnesses, eight of them burr's select men," as hay gleefully reported to jefferson.[ ] fully attired in the showy uniform of the period, to the last item of martial decoration, the fat, pompous commanding general of the american armies strode through the crowded streets of richmond and made his way among the awed and gaping throng to his seat by the side of the government's attorneys. washington irving reports that "wilkinson strutted into the court, and ... stood for a moment swelling like a turkey cock." burr ignored him until marshall "directed the clerk to swear general wilkinson; at the mention of the name burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly ... went on conversing with his counsel as tranquilly as ever."[ ] wilkinson delighted jefferson with a different description: "i saluted the bench & in spite of myself my eyes darted a flash of indignation at the little traitor, on whom they continued fixed until i was called to the book--here sir i found my expectations verified--this lyon hearted eagle eyed hero, sinking under the weight of conscious guilt, with haggard eye, made an effort to meet the indignant salutation of outraged honor, but it was in vain, his audacity failed him, he averted his face, grew pale & affected passion to conceal his perturbation."[ ] but the countenance of a thin, long-faced, roughly garbed man sitting among the waiting witnesses was not composed when wilkinson appeared. for three weeks andrew jackson to all whom he met had been expressing his opinion of wilkinson in the unrestrained language of the fighting frontiersman;[ ] and he now fiercely gazed upon the creature whom he regarded as a triple traitor, his own face furious with scorn and loathing. within the bar also sat that brave and noble man whose career of unbroken victories had made the most brilliant and honorable page thus far in the record of the american navy--commodore thomas truxtun. he was dressed in civilian attire.[ ] by his side, clad as a man of business, sat a brother naval hero of the old days, commodore stephen decatur.[ ] a third of the group was benjamin stoddert, the secretary of the navy under president adams.[ ] in striking contrast with the dignified appearance and modest deportment of these gray-haired friends was the gaudily appareled, aggressive mannered eaton, his restlessness and his complexion advertising those excesses which were already disgusting even the hard-drinking men then gathered in richmond. dozens of inconspicuous witnesses found humbler places in the audience, among them sergeant jacob dunbaugh, bearing himself with mingled bravado, insolence, and humility, the stripes on the sleeve of his uniform designating the position to which wilkinson had restored him. dunbaugh had gone before the grand jury on saturday, as had bollmann; and now, one by one, truxtun, decatur, eaton, and others were sent to testify before that body. eaton told the grand jury the same tale related in his now famous affidavit.[ ] commodore truxtun testified to facts as different from the statements made by "the hero of derne"[ ] as though burr had been two utterly contrasted persons. during the same period that burr had seen eaton, he had also conversed with him, said truxtun. burr mentioned a great western land speculation, the digging of a canal, and the building of a bridge. later on burr had told him that "in the event of a war with spain, which he thought inevitable, ... he contemplated an expedition to mexico," and had asked truxtun "if the havanna could be easily taken ... and what would be the best mode of attacking carthagena and la vera cruz by land and sea." the commodore had given burr his opinion "very freely," part of it being that "it would require a naval force." burr had answered that "_that_ might be obtained," and had frankly asked truxtun if he "would take the command of a naval expedition." "i asked him," testified truxtun, "if the executive of the united states were privy to, or concerned in the project? he answered _emphatically_ that he was not: ... i told mr. burr that i would have nothing to do with it.... he observed to me, that in the event of a war [with spain], he intended to establish an independent government in mexico; that wilkinson, the army, and many officers of the navy would join.... wilkinson had projected the expedition, and he had matured it; that many greater men than wilkinson would join, and that thousands to the westward would join." in some of the conversations "burr mentioned to me that the government was weak," testified truxtun, "and he wished me to get the navy of the united states out of my head;[ ] ... and not to think more of those men at washington; that he wished to _see_ or _make_ me, (i do not recollect which of those two terms he used) an admiral." burr wished truxtun to write to wilkinson, to whom he was about to dispatch couriers, but truxtun declined, as he "had no subject to write about." again burr urged truxtun to join the enterprise--"several officers would be pleased at being put under my command.... the expedition could not fail--the mexicans were ripe for revolt." burr "was sanguine there would be war," but "if he was disappointed as to the event of war, he was about to complete a contract for a large quantity of land on the washita; that he intended to invite his friends to settle it; that in one year he would have a thousand families of respectable and fashionable people, and some of them of considerable property; that it was a fine country, and that they would have a charming society, and in two years he would have doubled the number of settlers; and being on the frontier, he would be ready to move whenever a war took place.... "all his conversations respecting military and naval subjects, and the mexican expedition, were in the event of a war with spain." truxtun testified that he and burr were "very intimate"; that burr talked to him with "no reserve"; and that he "never heard [burr] speak of a division of the union." burr had shown truxtun the plan of a "kind of boat that plies between paulus-hook and new-york," and had asked whether such craft would do for the mississippi river and its tributaries, especially on voyages upstream. truxtun had said they would. burr had asked him to give the plans to "a naval constructor to make several copies," and truxtun had done so. burr explained that "he intended those boats for the conveyance of agricultural products to market at new-orleans, and in the event of war [with spain], for transports." the commodore testified that burr made no proposition to invade mexico "whether there was war [with spain] or not." he was so sure that burr meant to settle the washita lands that he was "astonished" at the newspaper accounts of burr's treasonable designs after he had gone to the western country for the second time. truxtun had freely complained of what amounted to his discharge from the navy, being "pretty full" himself of "resentment against the government," and burr "joined [him] in opinion" on the administration.[ ] jacob dunbaugh told a weird tale. at fort massac he had been under captain bissel and in touch with burr. his superior officer had granted him a furlough to accompany burr for twenty days. before leaving, captain bissel had "sent for [dunbaugh] to his quarters," told him to keep "any secrets" burr had confided to him, and "advised" him "never to forsake col. burr"; and "at the same time he made [dunbaugh] a present of a silver breast plate." after dunbaugh had joined the expedition, burr had tried to persuade him to get "ten or twelve of the best men" among his nineteen fellow soldiers then at chickasaw bluffs to desert and join the expedition; but the virtuous sergeant had refused. then burr had asked him to "steal from the garrison arms such as muskets, fusees and rifles," but dunbaugh had also declined this reasonable request. as soon as burr learned of wilkinson's action, he told dunbaugh to come ashore with him armed "with a rifle," and to "conceal a bayonet under [his] clothes.... he told me he was going to tell me something i must never relate again, ... that general wilkinson had betrayed him ... that he had played the devil with him, and had proved the greatest traitor on the earth." just before the militia broke up the expedition, burr and wylie, his secretary, got "an axe, auger and saw," and "went into colonel burr's private room and began to chop," burr first having "ordered no person to go out." dunbaugh did go out, however, and "got on the top of the boat." when the chopping ceased, he saw that "a mr. pryor and a mr. tooly got out of the window," and "saw two bundles of arms tied up with cords, and sunk by cords going through the holes at the gunwales of colonel burr's boat." the vigilant dunbaugh also saw "about forty or forty-three stands [of arms], besides pistols, swords, blunderbusses, fusees, and tomahawks"; and there were bayonets too.[ ] next wilkinson detailed to the grand jury the revelations he had made to jefferson. he produced burr's cipher letter to him, and was forced to admit that he had left out the opening sentence of it--"yours, postmarked th of may, is received"--and that he had erased some words of it and substituted others. he recounted the alarming disclosures he had so cunningly extracted from burr's messenger, and enlarged upon the heroic measures he had taken to crush treason and capture traitors. for four days[ ] wilkinson held forth, and himself escaped indictment by the narrow margin of to of the sixteen grand jurymen. all the jurymen, however, appear to have believed him to be a scoundrel.[ ] "the mammoth of iniquity escaped," wrote john randolph in acrid disgust, "not that any man pretended to think him innocent, but upon certain wire-drawn distinctions that i will not pester you with. wilkinson is the only man i ever saw who was from the bark to the very core a villain.... perhaps you never saw human nature in so degraded a situation as in the person of wilkinson before the grand jury, and yet this man stands on the very summit and pinnacle of executive favor."[ ] samuel swartwout, the courier who had delivered burr's ill-fated letter, "most positively denied" that he had made the revelations which wilkinson claimed to have drawn from him.[ ] the youthful swartwout as deeply impressed the grand jury with his honesty and truthfulness as wilkinson impressed that body with his untrustworthiness and duplicity.[ ] peter taylor and jacob allbright then recounted their experiences.[ ] and the morgans told of burr's visit and of their inferences from his mysterious tones of voice, glances of eye, and cryptic expressions. so it was, that in spite of overwhelming testimony of other witnesses,[ ] who swore that burr's purposes were to settle the washita lands and in the event of war with spain, and only in that event, to invade mexico, with never an intimation of any project hostile to the united states--so it was that bills of indictment for treason and for misdemeanor were, on june , found against aaron burr of new york and harman blennerhassett of virginia. the indictment for treason charged that on december , , at blennerhassett's island in virginia, they had levied war on the united states; and the one for misdemeanor alleged that, at the same time and place, they had set on foot an armed expedition against territory belonging to his catholic majesty, charles iv of spain.[ ] this result of the grand jury's investigations was reached because of that body's misunderstanding of marshall's charge and of his opinion in the bollmann and swartwout case.[ ] john randolph, as foreman of the grand jury, his nose close to the ground on the scent of the principal culprit, came into court the day after the indictment of burr and blennerhassett and asked for the letter from wilkinson to burr, referred to in burr's cipher dispatch to wilkinson, and now in the possession of the accused. randolph said that, of course, the grand jury could not ask burr to appear before them as a witness, but that they did want the letter. marshall declared "that the grand jury were perfectly right in the opinion." burr said that he could not reveal a confidential communication, unless "the extremity of circumstances might impel him to such a conduct." he could not, for the moment, decide; but that "unless it were extorted from him by law" he could not even "deliberate on the proposition to deliver up any thing which had been confided to his honour." marshall announced that there was no "objection to the grand jury calling before them and examining any man ... who laid under an indictment." martin agreed "there could be no objection." the grand jury did not want burr as a witness, said john randolph. they asked only for the letter. if they should wish burr's presence at all, it would be only for the purpose of identifying it. so the grand jury withdrew.[ ] hay was swift to tell his superior all about it, although he trembled between gratification and alarm. "if every trial were to be like that, i am doubtful whether my patience will sustain me while i am wading thro' this abyss of human depravity." dutifully he informed the president that he feared that "the gr: jury had not dismissed all their suspicions of wilkinson," for john randolph had asked for his cipher letter to burr. then he described to jefferson the intolerable prisoner's conduct: "burr rose immediately, & declared that no consideration, no calamity, no desperation, should induce _him_ to betray a letter confidentially written. he could not even allow himself to deliberate on a point, where his conduct was prescribed by the clearest principles of honor &c. &c. &c." hay then related what marshall and john randolph had said, underscoring the statement that "the gr: jury _did not want a. b. as a witness_." hay did full credit, however, to burr's appearance of candor: "the attitude & tone assumed by burr struck everybody. there was an appearance of _honor_ and magnanimity which brightened the countenances of the phalanx who daily attend, for his encouragement & support."[ ] day after day was consumed in argument on points of evidence, while the grand jury were examining witnesses. marshall delivered a long written opinion upon the question as to whether a witness could be forced to give testimony which he believed might criminate himself. the district attorney read jefferson's two letters upon the subject of the subpoena _duces tecum_. no pretext was too fragile to be seized by one side or the other, as the occasion for argument upon it demanded--for instance, whether or not the district attorney might send interrogatories to the grand jury. always the lawyers spoke to the crowd as well as to the court, and their passages at arms became ever sharper.[ ] wilkinson is "an honest man and a patriot"--no! he is a liar and a thief; louisiana is a "poor, unfortunate, enslaved country"; letters had been seized by "foulness and violence"; the arguments of burr's attorneys are "mere declamations"; the government's agents are striving to prevent burr from having "a fair trial ... the newspapers and party writers are employed to _cry_ and _write_ him down; his counsel are denounced for daring to defend him; the passions of the grand jury are endeavored to be excited against him, at all events";[ ] hay's mind is "harder than ajax's seven fold shield of bull's hide"; edmund randolph came into court "with mysterious looks of awe and terror ... as if he had something to communicate which was too horrible to be told"; hay is always "on his heroics"; he "hopped up like a parched pea"; the object of burr's counsel is "to prejudice the surrounding multitude against general wilkinson"; one newspaper tale is "as impudent a falsehood as ever malignity had uttered"--such was the language with which the arguments were adorned. they were, however, well sprinkled with citations of authority.[ ] footnotes: [ ] see vol. i, , of this work. [ ] tobacco chewing and smoking in court-rooms continued in most american communities in the south and west down to a very recent period. [ ] address of john tyler on "richmond and its memories," tyler, i, . [ ] irving was twenty-four years old when he reported the burr trial. [ ] _blennerhassett papers_: safford, . marshall made this avowal to luther martin, who personally told blennerhassett of it. [ ] judge francis m. finch, in dillon, i, . "the men who framed that instrument [constitution] remembered the crimes that had been perpetrated under the pretence of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason." (adams: _u.s._ iii, .) [ ] a favorite order from the bench for the execution of the condemned was that the culprit should be drawn prostrate at the tails of horses through the jagged and filthy streets from the court-room to the place of execution; the legs, arms, nose, and ears there cut off; the intestines ripped out and burned "before the eyes" of the victim; and finally the head cut off. details still more shocking were frequently added. see sentences upon william, lord russell, july , (_state trials richard ii to george i_, vol. , ); upon algernon sidney, november , (_ib._ ); upon william, viscount stafford, december , (_ib._ ); upon william stayley, november , (_ib._ vol. , ); and upon other men condemned for treason. [ ] even in philadelphia, after the british evacuation of that place during the revolution, hundreds were tried for treason. lewis alone, although then a very young lawyer, defended one hundred and fifty-two persons. (see _chase trial_, .) [ ] "in the english law ... the rule ... had been that enough heads must be cut off to glut the vengeance of the crown." (isaac n. phillips, in dillon, ii, .) [ ] iredell's charge to the georgia grand jury, april , , _iredell_: mcree, ii, ; and see iredell's charge to the massachusetts grand jury, oct. , , _ib._ . [ ] see his concurrence with judge peters's charge in the fries case, wharton: _state trials_, - ; and peters's opinion, _ib._ ; also see chase's charge at the second trial of fries, _ib._ . [ ] "the president's popularity is unbounded, and his will is that of the nation.... such is our present infatuation." (nicholson to randolph, april , , adams: _randolph_, - .) [ ] hildreth, iv, . [ ] parton: _burr_, . [ ] parton: _jackson_, i, . [ ] jackson to anderson, june , , _ib._ . [ ] _ib._ . [ ] _ib._ - . [ ] parton: _burr_, - ; see also parton: _jackson_, ii, - , - ; and davis, ii, - . [ ] address of john tyler, "richmond and its memories," tyler, i, . [ ] parton: _burr_, . [ ] _memoirs of lieut.-general scott_, i, . [ ] _memoirs of lieut.-general scott_, i, , . [ ] see _great american lawyers_: lewis, ii, - . kennedy says that the stories of wirt's habits of intoxication were often exaggerated (kennedy, i, ); but see his description of the bar of that period and his apologetic reference to wirt's conviviality (_ib._ - ). [ ] _blennerhassett papers_: safford, . [ ] parton: _burr_, . [ ] _burr trials_, i, - . [ ] _ib._ . [ ] _ib._ . [ ] meaning the partiality of the persons challenged, such as animosity toward the accused, conduct showing bias against him, and the like. see _bouvier's law dictionary_: rawle, d revision, ii, . [ ] _burr trials_, i, - . [ ] _ib._ - . [ ] _burr trials_, i, - . [ ] jefferson to nicholas, feb. , , _works_: ford, x, - . [ ] _burr trials_, i, . [ ] _ib._ . [ ] in view of the hatred which marshall knew randolph felt toward jefferson, it is hard to reconcile his appointment with the fairness which marshall tried so hard to display throughout the trial. however, several of jefferson's most earnest personal friends were on the grand jury, and some of them were very powerful men. also fourteen of the grand jury were republicans and only two were federalists. [ ] _burr trials_, i, - . this grand jury included some of the foremost citizens of virginia. the sixteen men who composed this body were: john randolph, jr., joseph eggleston, joseph c. cabell, littleton w. tazewell, robert taylor, james pleasants, john brockenbrough, william daniel, james m. garnett, john mercer, edward pegram, munford beverly, john ambler, thomas harrison, alexander shephard, and james barbour. [ ] marshall's error in this opinion, or perhaps the misunderstanding of a certain passage of it (see _supra_, ), caused him infinite perplexity during the trial; and he was put to his utmost ingenuity to extricate himself. the misconstruction by the grand jury of the true meaning of marshall's charge was one determining cause of the grand jury's decision to indict burr. (see _infra_, .) [ ] _burr trials_, i, - . [ ] hay to jefferson, may , , jefferson mss. lib. cong. [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] irving to paulding, june , , _life and letters of washington irving_: irving, i, . [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] "i ... contented myself ... with ... declaring to the audience (for two thirds of our speeches have been addressed to the people) that i was prepared to give the most direct contradiction to the injurious statements." (hay to jefferson, june , , giving the president an account of the trial, jefferson mss. lib. cong.) [ ] he was hanged in effigy soon after the trial. (see _infra_, .) [ ] it must be remembered that marshall himself declared, in the very midst of the contest, that it would be dangerous for a jury to acquit burr. (see _supra_, .) [ ] he had narrowly escaped impeachment (see _supra_, chap. iv), and during the trial he was openly threatened with that ordeal (see _infra_, ). [ ] _burr trials_, i, - . [ ] see _supra_, - . [ ] jefferson to hay, may , , _works_: ford, x, footnote to - . [ ] _burr trials_, i, - . [ ] _ib._ . [ ] _ib._ - . [ ] _burr trials_, i, . [ ] _ib._ . [ ] _ib._ - . [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] _ib._ . [ ] _md. hist. soc. fund-pub. no. , ._ [ ] _blennerhassett papers_: safford, - . [ ] _burr trials_, i, - . [ ] _burr trials_, i, . [ ] the men who went on this second bail bond for burr were: william langburn, thomas taylor, john g. gamble, and luther martin. (_ib._ .) [ ] _blennerhassett papers_: safford, - . [ ] _eaton_: prentiss, - ; cranch, - . [ ] _blennerhassett papers_: safford, . [ ] jefferson to hay, may , , _works_: ford, x, - . [ ] jefferson to eppes, may , , _works_: ford, x, - . [ ] hay to jefferson, may , , jefferson mss. lib. cong. [ ] jefferson to hay, june , , _works_: ford, x, - . [ ] same to same, june , , _ib._ - ; hay to jefferson, same date, jefferson mss. lib. cong.; and others cited, _infra_. [ ] jefferson to dayton, aug. , , _works_: ford, x, . [ ] irving to mrs. hoffman, june , , irving, i, . [ ] _ib._ [ ] burr had seen the order in the _natchez gazette_. it was widely published. [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] hay to jefferson, june , , jefferson mss. lib. cong. [ ] jefferson to hay, june , , _works_: ford, x, - . [ ] _burr trials_, i, - . [ ] irving to mrs. hoffman, june , , irving, i, . [ ] martin here refers to what he branded as "the farcical trials of ogden and smith." in june and july, , william s. smith and samuel g. ogden of new york were tried in the united states court for that district upon indictments charging them with having aided miranda in his attack on caracas, venezuela. they made affidavit that the testimony of james madison, secretary of state, henry dearborn, secretary of war, robert smith, secretary of the navy, and three clerks of the state department, was necessary to their defense. accordingly these officials were summoned to appear in court. they refused, but on july , , wrote to the judges--william paterson of the supreme court and matthias b. talmadge, district judge--that the president "has specially signified to us that our official duties cannot ... be at this juncture dispensed with." (_trials of smith and ogden_: lloyd, stenographer, - .) the motion for an attachment to bring the secretaries and their clerks into court was argued for three days. the court disagreed, and no action therefore was taken. (_ib._ - .) one judge (undoubtedly paterson) was "of opinion, that the absent witnesses should be laid under a rule to show cause, why an attachment should not be issued against them"; the other (talmadge) held "that neither an attachment in the first instance, nor a rule to show cause ought to be granted." (_ib._ .) talmadge was a republican, appointed by jefferson, and charged heavily against the defendants (_ib._ - , ); but they were acquitted. the case was regarded as a political prosecution, and the refusal of cabinet officers and department clerks to obey the summons of the court, together with judge talmadge's disagreement with justice paterson--who in disgust immediately left the bench under plea of ill-health (_ib._ )--and the subsequent conduct of the trial judge, were commented upon unfavorably. these facts led to martin's reference during the burr trial. [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] _ib._ - . [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] _ib._ - . [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] _ib._ - . [ ] _burr trials_, i, . [ ] see _infra_, - . [ ] _burr trials_, i, - . [ ] united states _vs._ smith and ogden. (see _supra_, , foot-note.) [ ] _burr trials_, i, - . [ ] _burr trials_, i, . [ ] hay to jefferson, june , , jefferson mss. lib. cong. [ ] ambler: _thomas ritchie--a study in virginia politics_, - . [ ] jefferson to hay, june , , _works_: ford, x, - . [ ] jefferson to hay, june , , _works_: ford, x, - . [ ] _burr trials_, i, . [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] jefferson to hay, june , , _works_: ford, x, - . [ ] hay to jefferson, june , , jefferson mss. lib. cong. this letter announced wilkinson's landing at hampton roads. wilkinson reached richmond by stage on saturday, june . he was accompanied by john graham and captain gaines, the ordinary witnesses having been sent ahead on a pilot boat. (graham to madison, may , , "letters in relation," mss. lib. cong.) graham incorrectly dated his letter may instead of june . he had left new orleans in may, and in the excitement of landing had evidently forgotten that a new month had come. wilkinson was "too much fatigued" to come into court. (_burr trials_, i, .) by monday, however, he was sufficiently restored to present himself before marshall. [ ] irving to paulding, june , , irving, i, . [ ] wilkinson to jefferson, june , , "letters in relation," mss. lib. cong. the court reporter impartially states that wilkinson was "calm, dignified, and commanding," and that burr glanced at him with "haughty contempt." (_burr trials_, i, footnote to .) [ ] "gen: jackson of tennessee has been here ever since the ^{d.} [of may] denouncing wilkinson in the coarsest terms in every company." (hay to jefferson, june , , jefferson mss. lib. cong.) hay had not the courage to tell the president that jackson had been as savagely unsparing in his attacks on jefferson as in his thoroughly justified condemnation of wilkinson. [ ] truxtun left the navy in , and, at the time of the burr trial, was living on a farm in new jersey. no officer in any navy ever made a better record for gallantry, seamanship, and whole-hearted devotion to his country. the list of his successful engagements is amazing. he was as high-spirited as he was fearless and honorable. in , when in command of the squadron that was being equipped for our war with tripoli, truxtun most properly asked that a captain be appointed to command the flagship. the navy was in great disfavor with jefferson and the whole republican party, and naval affairs were sadly mismanaged or neglected. truxtun's reasonable request was refused by the administration, and he wrote a letter of indignant protest to the secretary of the navy. to the surprise and dismay of the experienced and competent officer, jefferson and his cabinet construed his spirited letter as a resignation from the service, and, against truxtun's wishes, accepted it as such. thus the american navy lost one of its ablest officers at the very height of his powers. truxtun at the time was fifty-two years old. no single act of jefferson's administration is more discreditable than this untimely ending of a great career. [ ] this man was the elder decatur, father of the more famous officer of the same name. he had had a career in the american navy as honorable but not so distinguished as that of truxtun; and his service had been ended by an unhappy circumstance, but one less humiliating than that which severed truxtun's connection with the navy. the unworthiest act of the expiring federalist congress of , and one which all republicans eagerly supported, was that authorizing most of the ships of the navy to be sold or laid up and most of the naval officers discharged. (act of march , , _annals_, th cong. st and d sess. - .) among the men whose life profession was thus cut off, and whose notable services to their country were thus rewarded, was commodore stephen decatur, who thereafter engaged in business in philadelphia. [ ] it was under stoddert's administration of the navy department that the american navy was really created. both truxtun and decatur won their greatest sea battles in our naval war with france, while stoddert was secretary. the three men were close friends and all of them warmly resented the demolition of the navy and highly disapproved of jefferson, both as an individual and as a statesman. they belonged to the old school of federalists. three more upright men did not live. [ ] see _supra_, - . [ ] a popular designation of eaton after his picturesque and heroic moroccan exploit. [ ] truxtun at the time of his conversations with burr was in the thick of that despair over his cruel and unjustifiable separation from the navy, which clouded his whole after life. the longing to be once more on the quarter-deck of an american warship never left his heart. [ ] _burr trials_, i, - . this abstract is from the testimony given by commodore truxtun before the trial jury, which was substantially the same as that before the grand jury. [ ] _annals_, th cong. st sess. - . see note , next page. [ ] wilkinson's testimony on the trial for misdemeanor (_annals_, th cong. st sess, - ) was the same as before the grand jury. "wilkinson is now before the grand jury, and has such a mighty mass of _words_ to deliver himself of, that he claims at least two days more to discharge the wondrous cargo." (irving to paulding, june , , irving, i, .) [ ] see mccaleb, . politics alone saved wilkinson. the trial was universally considered a party matter, jefferson's prestige, especially, being at stake. yet seven out of the sixteen members of the grand jury voted to indict wilkinson. fourteen of the jury were republicans, and two were federalists. [ ] randolph to nicholson, june , , adams: _randolph_, - . speaking of political conditions at that time, randolph observed: "politics have usurped the place of law, and the scenes of [referring to the alien and sedition laws] are again revived." [ ] testimony of joseph c. cabell, one of the grand jury. (_annals_, th cong. st sess. .) [ ] "mr. swartwout ... discovered the utmost frankness and candor in his evidence.... the very frank and candid manner in which he gave his testimony, i must confess, raised him very high in my estimation, and induced me to form a very different opinion of him from that which i had before entertained." (testimony of littleton w. tazewell, one of the grand jury, _annals_, th cong. st sess. .) "the manner of mr. swartwout was certainly that of conscious innocence." (testimony of joseph c. cabell, one of the grand jury, _ib._ .) [ ] see _supra_, - . [ ] forty-eight witnesses were examined by the grand jury. the names are given in brady: _trial of aaron burr_, - . [ ] _burr trials_, i, - ; also "bills of indictment," mss. archives of the united states court, richmond, va. the following day former senator jonathan dayton of new jersey, senator john smith of ohio, comfort tyler and israel smith of new york, and davis floyd of the territory of indiana, were presented for treason. how bollmann, swartwout, adair, brown, and others escaped indictment is only less comprehensible than the presentment of tyler, floyd, and the two smiths for treason. [ ] _blennerhassett papers_: safford, . "two of the most respectable and influential of that body, since it has been discharged, have declared they mistook the meaning of chief justice marshall's opinion as to what sort of acts amounted to treason in this country, in the case of swartwout and ogden [bollmann]; that it was under the influence of this mistake they concurred in finding such a bill against a. burr, which otherwise would have probably been ignored." [ ] _burr trials_, i, - . [ ] hay to jefferson, june , , jefferson mss. lib. cong. [ ] _burr trials_, i, - . [ ] this was one of luther martin's characteristic outbursts. every word of it, however, was true. [ ] _burr trials_, i, - . chapter ix what is treason? no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. (constitution, article iii, section .) such are the jealous provisions of our laws in favor of the accused that i question if he can be convicted. (jefferson.) the scenes which have passed and those about to be transacted will hereafter be deemed fables, unless attested by very high authority. (aaron burr.) that this court dares not usurp power is most true. that this court dares not shrink from its duty is no less true. (marshall.) while the grand jury had been examining witnesses, interesting things had taken place in richmond. burr's friends increased in number and devotion. many of them accompanied him to and from court each day.[ ] dinners were given in his honor, and burr returned these courtesies, sometimes entertaining at his board a score of men and women of the leading families of the city.[ ] fashionable richmond was rapidly becoming burr-partisan. in society, as at the bar, the government had been maneuvered into defense. throughout the country, indeed, burr's numerous adherents had proved stanchly loyal to him. "i believe," notes senator plumer in his diary, "even at this period, that no man in this country, has more personal friends or who are more firmly attached to his interests--or would make greater sacrifices to aid him than this man."[ ] but this availed burr nothing as against the opinion of the multitude, which jefferson manipulated as he chose. indeed, save in richmond, this very fidelity of burr's friends served rather to increase the public animosity; for many of these friends were persons of standing, and this fact did not appeal favorably to the rank and file of the rampant democracy of the period. in richmond, however, burr's presence and visible peril animated his followers to aggressive action. on the streets, in the taverns and drinking-places, his adherents grew bolder. young swartwout chanced to meet the bulky, epauletted wilkinson on the sidewalk. flying into "a paroxysm of disgust and rage," burr's youthful follower[ ] shouldered the burly general "into the middle of the street." wilkinson swallowed the insult. on learning of the incident jackson "was wild with delight."[ ] burr's enemies were as furious with anger. to spirited virginians, only treason itself was worse than the refusal of wilkinson, thus insulted, to fight. swartwout, perhaps inspired by jackson, later confirmed this public impression of wilkinson's cowardice. he challenged the general to a duel; the hero refused--"he held no correspondence with traitors or conspirators," he loftily observed;[ ] whereupon the young "conspirator and traitor" denounced, in the public press, the commander of the american armies as guilty of treachery, perjury, forgery, and cowardice.[ ] the highest officer in the american military establishment "posted for cowardice" by a mere stripling! more than ever was swartwout endeared to jackson. soon after his arrival at richmond, and a week before burr was indicted, wilkinson perceived, to his dismay, the current of public favor that was beginning to run toward burr; and he wrote to jefferson in unctuous horror: "i had anticipated that a deluge of testimony would have been poured forth from all quarters, to overwhelm him [burr] with guilt & dishonour--... to my astonishment i found the traitor vindicated & myself condemned by a mass of wealth character-influence & talents--merciful god what a spectacle did i behold--integrity & truth perverted & trampled under foot by turpitude & guilt, patriotism appaled & usurpation triumphant."[ ] wilkinson was plainly weakening, and jefferson hastened to comfort his chief witness: "no one is more sensible than myself of the injustice which has been aimed at you. accept i pray, my salutations and assurances of respect and esteem."[ ] before the grand jury had indicted burr and blennerhassett, wilkinson suffered another humiliation. on the very day that the general sent his wailing cry of outraged virtue to the president, burr gave notice that he would move that an attachment should issue against jefferson's hero for "contempt in obstructing the administration of justice" by rifling the mails, imprisoning witnesses, and extorting testimony by torture.[ ] the following day was consumed in argument upon the motion that did not rise far above bickering. marshall ruled that witnesses should be heard in support of burr's application, and that wilkinson ought to be present.[ ] accordingly, the general was ordered to come into court. james knox, one of the young men who had accompanied burr on his disastrous expedition, had been brought from new orleans as a witness for the government. he told a straightforward story of brutality inflicted upon him because he could not readily answer the printed questions sent out by jefferson's attorney-general.[ ] by other witnesses it appeared that letters had been improperly taken from the post-office in new orleans.[ ] an argument followed in which counsel on both sides distinguished themselves by the learning and eloquence they displayed.[ ] it was while botts was speaking on this motion to attach wilkinson, that the grand jury returned the bills of indictment.[ ] so came the dramatic climax. instantly the argument over the attachment of wilkinson was suspended. burr said that he would "prove that the indictment against him had been obtained by perjury"; and that this was a reason for the court to exercise its discretion in his favor and to accept bail instead of imprisoning him.[ ] marshall asked martin whether he had "any precedent, where a court has bailed for treason, after the finding of a grand jury," when "the testimony ... had been impeached for perjury," or new testimony had been presented to the court.[ ] for once in his life, martin could not answer immediately and offhand. so that night aaron burr slept in the common jail at richmond. "the cup of bitterness has been administered to him with unsparing hand," wrote washington irving.[ ] but he did not quail. he was released next morning upon a writ of habeas corpus;[ ] the argument on the request for the attachment of wilkinson was resumed, and for three days counsel attacked and counter-attacked.[ ] on june , burr's attorneys made oath that confinement in the city jail was endangering his health; also that they could not, under such conditions, properly consult with him about the conduct of his case. accordingly, marshall ordered burr removed to the house occupied by luther martin; and to be confined to the front room, with the window shutters secured by bars, the door by a padlock, and the building guarded by seven men. burr pleaded not guilty to the indictments against him, and orders were given for summoning the jury to try him.[ ] finally, marshall delivered his written opinion upon the motion to attach wilkinson. it was unimportant, and held that wilkinson had not been shown to have influenced the judge who ordered knox imprisoned or to have violated the laws intentionally. the chief justice ordered the marshal to summon, in addition to the general panel, forty-eight men to appear on august from wood county, in which blennerhassett's island was located, and where the indictment charged that the crime had been committed.[ ] five days before marshall adjourned court in order that jurymen might be summoned and both prosecution and defense enabled to prepare for trial, an event occurred which proved, as nothing else could have done, how intent were the people on the prosecution of burr, how unshakable the tenacity with which jefferson pursued him. on june , , the british warship, the leopard, halted the american frigate, the chesapeake, as the latter was putting out to sea from norfolk. the british officers demanded of commodore james barron to search the american ship for british deserters and to take them if found. barron refused. thereupon the leopard, having drawn alongside the american vessel, without warning poured broadsides into her until her masts were shot away, her rigging destroyed, three sailors killed and eighteen wounded. the chesapeake had not been fitted out, was unable to reply, and finally was forced to strike her colors. the british officers then came on board and seized the men they claimed as deserters, all but one of whom were american-born citizens.[ ] the whole country, except new england, roared with anger when the news reached the widely separated sections of it; but the tempest soon spent its fury. quickly the popular clamor returned to the "traitor" awaiting trial at richmond. nor did this "enormity," as jefferson called the attack on the chesapeake,[ ] committed by a foreign power in american waters, weaken for a moment the president's determination to punish the native disturber of our domestic felicity. the news of the chesapeake outrage arrived at richmond on june , and john randolph supposed that, of course, jefferson would immediately call congress in special session.[ ] the president did nothing of the kind. wilkinson, as commander of the army, advised him against armed retaliation. the "late outrage by the british," wrote the general, "has produced ... a degree of emotion bordering on rage--i revere the honourable impulse but fear its effects--... the present is no moment for precipitancy or a stretch of power--on the contrary the british being prepared for war & we not, a sudden appeal to hostilities will give them a great advantage--... the efforts made here [richmond] by a band of depraved citizens, in conjunction with an audacious phalanx of insolent exotics, to save burr, will have an ultimate good effect, for the national character of the _ancient dominion_ is in display, and the honest impulses of true patriotism will soon silence the advocates of usurpation without & conspiracy within." wilkinson tells jefferson that he is coming to washington forthwith to pay his "respects," and concludes: "you are doubtless well advised of proceedings here in the case of burr--to me they are incomprehensible as i am no jurist--the grand jury actually made an attempt to present me for misprision of treason--... i feel myself between 'scylla and carybdis' the jury would dishonor me for failing of my duty, and burr & his conspirators for performing it--"[ ] not until five weeks after the chesapeake affair did the president call congress to convene in special session on october --more than four months after the occurrence of the crisis it was summoned to consider.[ ] but in the meantime jefferson had sent a messenger to advise the american minister in london to tell the british government what had happened, and to demand a disavowal and an apology. meanwhile, the administration vigorously pushed the prosecution of the imprisoned "traitor" at richmond.[ ] hay was dissatisfied that burr should remain in martin's house, even under guard and with windows barred and door locked; and he obtained from the executive council of virginia a tender to the court of "apartments on the third floor" of the state penitentiary for the incarceration of the prisoner. burr's counsel strenuously objected, but marshall ordered that he be confined there until august , at which time he should be returned to the barred and padlocked room in martin's house.[ ] in the penitentiary, "situated in a solitary place among the hills" a mile and a half from richmond,[ ] burr remained for five weeks. three large rooms were given him in the third story; the jailer was considerate and kind; his friends called on him every day;[ ] and servants constantly "arrived with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice and some ordinary articles."[ ] burr wrote theodosia of his many visitors, women as well as men: "it is well that i have an ante-chamber, or i should often be _gêné_ with visitors." if theodosia should come on for the trial, he playfully admonishes her that there must be "no agitations, no complaints, no fears or anxieties on the road, or i renounce thee."[ ] finally burr asked his daughter to come to him: "i want an independent and discerning witness to my conduct and that of the government. the scenes which have passed and those about to be transacted will exceed all reasonable credibility, and will hereafter be deemed fables, unless attested by very high authority.... i should never invite any one, much less those so dear to me, to witness my disgrace. i may be immured in dungeons, chained, murdered in legal form, but i cannot be humiliated or disgraced. if absent, you will suffer great solicitude. in my presence you will feel none, whatever be the _malice_ or the _power_ of my enemies, and in both they abound."[ ] theodosia was soon with her father. her husband, joseph alston, now governor of south carolina, accompanied her; and she brought her little son, who, almost as much as his beautiful mother, was the delight of burr's heart. during these torrid weeks the public temper throughout the country rose with the thermometer.[ ] the popular distrust of marshall grew into open hostility. a report of the proceedings, down to the time when burr was indicted for treason, was published in a thick pamphlet and sold all over virginia and neighboring states. the impression which the people thus acquired was that marshall was protecting burr; for had he not refused to imprison him until the grand jury indicted the "traitor"? the chief justice estimated the situation accurately. he knew, moreover, that prosecutions for treason might be instituted thereafter in other parts of the country, particularly in new england. the federalist leaders in that section had already spoken and written sentiments as disloyal, essentially, as those now attributed to burr; and, at that very time, when the outcry against burr was loudest, they were beginning to revive their project of seceding from the union.[ ] to so excellent a politician and so far-seeing a statesman as marshall, it must have seemed probable that his party friends in new england might be brought before the courts to answer to the same charge as that against aaron burr. at all events, he took, at this time, a wise and characteristically prudent step. four days after the news of the chesapeake affair reached richmond, the chief justice asked his associates on the supreme bench for their opinion on the law of treason as presented in the case of aaron burr. "i am aware," he wrote, "of the unwillingness with which a judge will commit himself by an opinion on a case not before him, and on which he has heard no argument. could this case be readily carried before the supreme court, i would not ask an opinion in its present stage. but these questions must be decided by the judges separately on their respective circuits, and i am sure that there would be a strong and general repugnance to giving contradictory decisions on the same points. such a circumstance would be disreputable to the judges themselves as well as to our judicial system. this suggestion suggests the propriety of a consultation on new and different subjects and will, i trust, apologize for this letter."[ ] whether a consultation was held during the five weeks that the burr trial was suspended is not known. but if the members of the supreme court did not meet the chief justice, it would appear to be certain that they wrote him their views of the american law of treason; and that, in the crucial opinion which marshall delivered on that subject more than two months after he had written to his associates, he stated their mature judgments as well as his own. it was, therefore, with a composure, unwonted even for him, that marshall again opened court on august , . the crowd was, if possible, greater than ever. burr entered the hall with his son-in-law, governor alston.[ ] not until a week later was counsel for the government ready to proceed. when at last the men summoned to serve on the petit jury were examined as to their qualifications, it was all but impossible to find one impartial man among them--utterly impossible to secure one who had not formed opinions from what, for months, had been printed in the newspapers. marshall described with fairness the indispensable qualifications of a juror.[ ] men were rejected as fast as they were questioned--all had read the stories and editorial opinions that had filled the press, and had accepted the deliberate judgment of jefferson and the editors; also, they had been impressed by the public clamor thus created, and believed burr guilty of treason. out of forty-eight men examined during the first day, only four could be accepted.[ ] while the examination of jurors was in progress, one of the most brilliant debates of the entire trial sprang up, as to the nature and extent of opinions formed which would exclude a man from serving on a jury.[ ] when marshall was ready to deliver his opinion, he had heard all the reasoning that great lawyers could give on the subject, and had listened to acute analyses of all the authorities. his statement of the law was the ablest opinion he had yet delivered during the proceedings, and is an admirable example of his best logical method. it appears, however, to have been unnecessary, and was doubtless delivered as a part of marshall's carefully considered plan to go to the extreme throughout the trial in the hearing and examination of every subject.[ ] for nearly two weeks the efforts to select a jury continued. not until august were twelve men secured, and most of these avowed that they had formed opinions that burr was a traitor. they were accepted only because impartial men could not be found. when marshall finished the reading of his opinion, hay promptly advised jefferson that "the [bi]as of judge marshall is as obvious, as if it was [stam]ped upon his forehead.... [he is] endeavoring to work himself up to a state of [f]eeling which will enable [him] to aid burr throughout the trial, without appearing to be conscious of doing wrong. he [marshall] seems to think that his reputation is irretrievably gone, and that he has now nothing to lose by doing as he pleases.--his concern for burr is wonderful. he told me many years ago, when burr was rising in the estimation of the republican party, that he was as profligate in principle, as he was desperate in fortune. i remember his words. they astonished me. "yet," complained hay, "when the gr: jury brought in their bill the chief justice gazed at him, for a long time, without appearing conscious that he was doing so, with an expression of sympathy & sorrow as strong, as the human countenance can exhibit without _palpable_ emotion. if mr. burr has any feeling left, yesterday must have been a day of agonizing humiliation," because the answers of the jurors had been uniformly against him; and hay gleefully relates specimens of them. "there is but one chance for the accused," he continued, "and that is a good one because it rests with the chief justice. it is already hinted, but not by himself [that] the decision of the supreme court will no[t be] deemed binding. if the assembly of men on [blennerhassett's is]land, can be pronounced 'not an overt act' [it will] be so pronounced."[ ] hay's opening statement to the jury was his best performance of the entire proceedings. he described burr's purpose in almost the very words of jefferson's special message. the gathering on blennerhassett's island was, he said, the overt act; burr, it was true, was not there at the time, but his presence was not necessary. had not marshall, in the bollmann and swartwout case, said that "if war be actually levied, ... _all those who perform any part, however minute_, or _however remote from the scene of action_, and who are actually _leagued in the general conspiracy, are to be considered_ as _traitors_"?[ ] the examination of the government's witnesses began. eaton took the stand; but burr insisted that the overt act must be proved before collateral testimony could be admitted. so came the first crossing of swords over the point that was to save the life of aaron burr. the arguments of counsel were brilliant; but neither side forgot the public. they must thrill the audience as well as convince the court. "there had been a great deal of war in the newspapers," said wickham, but everybody knew "that there had been no war in fact." wirt insisted on "unfolding events as they occurred"; that was "the lucid order of nature and reason." martin pointed out that eaton's testimony did not "relate to any _acts_ committed any where, but to mere declarations out of the district."[ ] let the evidence be pertinent. the indictment charged a specific act, and it must be proved as charged. no man could be expected suddenly to answer for every act of his life. if burr had planned to free mexico and had succeeded, "he would have merited the applause of the friends of liberty and of posterity; ... but his friends may now pray that he may not meet the fate that washington himself would have met, if the revolution had not been established." a mass of decisions, english as well as american, were cited by both wirt and martin;[ ] and when, that night, marshall began to write his opinion on whether the overt act must be proved before other testimony could be received, all authorities had been reviewed, all arguments made. must the overt act be proved before hearing collateral testimony? the question, said marshall, was precisely the same as that raised and decided on the motion to commit burr. but it came up now under different circumstances--an indictment had been found "specifying a charge which is to be proved," and thus "an issue made up which presents a point to which all the testimony must apply." so marshall could now "determine, with some accuracy, on the relevancy of the testimony." the prosecution contended that the crime consisted of "the fact and the intention," and that the government might first prove either of these; the defense insisted that the overt act must be shown before any testimony, explanatory or confirmatory of that fact, can be received. to prove first the fact charged was certainly "the most useful ... and ... natural order of testimony"; but no fixed rule of evidence required it, and no case had been cited in which any court had ever "forced" it on counsel for the prosecution. the different impressions made upon the minds of the jury by the order of testimony was important, said marshall: "although human laws punish actions, the human mind spontaneously attaches guilt to intentions." when testimony had prepared the mind to look upon the prisoner's designs as criminal, a jury would consider a fact in a different light than if it had been proved before guilty intentions had been shown. however, since no rule prevented the prosecution from first proving either, "no alteration of that arrangement ... will now be directed." but, continued marshall, "the intention which is ... relevant in this stage of the inquiry is the intention which composes a part of the crime, the intention with which the overt act itself was committed; not a general evil disposition, or an intention to commit a distinct [different] fact." testimony as to such intentions, "if admissible at all, is received as corroborative or confirmatory testimony," and could not precede "that which it is to corroborate or confirm." apply this rule to eaton's testimony: it would be admissible only "so far as his testimony relate[d] to the fact charged in the indictment, ... to levying war on blennerhassett's island," and the "design to seize on new-orleans, or to separate by force, the western from the atlantic states"; but "so far as it respect[ed] other plans to be executed in the city of washington, or elsewhere," eaton's story would be at best merely "corroborative testimony," and, "if admissible at any time," could be received only "after hearing that which it is to confirm." so let hay "proceed according to his own judgment." marshall would not exclude any testimony except that which appeared to be irrelevant, and upon this he would decide when it was offered.[ ] again eaton was called to the stand. before he began his tale, he wished to explain "the motives" of his "own conduct." marshall blandly suggested that the witness stick to burr's revelations to him. then, said eaton, "concerning any overt act, which goes to prove aaron burr guilty of treason i know nothing.... but concerning colonel burr's expressions of treasonable intentions, i know much." notwithstanding marshall's intimation that eaton must confine his testimony to burr, "the hero of derne" was not to be denied his self-vindication; not even the chief justice should check his recital of his patriotism, his glories, his wrongs. burr had good reasons for supposing him "disaffected toward the government"; he then related at length his services in africa, the lack of appreciation of his ability and heroism, the preferment of unworthy men to the neglect of himself. finally, eaton, who "strutted more in buskin than usual," to the amusement of "the whole court,"[ ] delivered his testimony, and once more related what he had said in his deposition. since marshall had "decided it to be irrelevant," eaton omitted the details about burr's plans to murder jefferson, turn congress out of the capitol, seize the navy, and make himself ruler of america at one bold and bloody stroke.[ ] commodore truxtun then gave the simple and direct account, already related, of burr's conversation with him;[ ] peter taylor and jacob allbright once more told their strange tales; and the three morgans again narrated the incidents of burr's incredible acts and statements while visiting the elder morgan at morganza.[ ] william love, an englishman, formerly blennerhassett's servant--a dull, ignorant, and timorous creature--testified to the gathering of "_about betwixt_ twenty and twenty-five" men at his employer's island, some of whom went "out a gunning." he saw no other arms except those belonging to his master, nor did he "see any guns presented," as allbright had described. blennerhassett told him that if he would go with him to the washita, he should have "a piece of land." love "understood the object of the expedition was to settle washita lands."[ ] dudley woodbridge, once a partner of blennerhassett, told of burr's purchase from his firm of a hundred barrels of pork and fifteen boats, paid by a draft on ogden of new york; of blennerhassett's short conversation with woodbridge about the enterprise, from which he inferred that "the object was mexico"; of his settlement with blennerhassett of their partnership accounts; of blennerhassett's financial resources; and of the characteristics of the man--"very nearsighted," ignorant of military affairs, a literary person, a chemist and musician, with the reputation of having "every kind of sense but common sense." the witness related his observation of the seizure at marietta of burr's few boats and provisions by the ohio militia, and the sale of them by the government; of the assemblage of the twenty or thirty men on blennerhassett's island; of their quiet, orderly conduct; of comfort tyler's declaration "that he would not resist the constituted authorities, but that he would not be stopped by a mob"; of mrs. blennerhassett's taking part of her husband's library with her when she followed him, after the flight of the terrified little band from the island; and of the sale of the remainder of the cultivated visionary's books.[ ] simeon poole, who had been sent by governor tiffin of ohio to arrest blennerhassett, said that he was not on the island, but from dusk until ten o'clock watched from a concealed place on the ohio shore. he saw a few men walking about, who during the night kindled a fire, by the light of which it seemed to poole that some of them were "armed." he could not be sure from where he watched, but they "looked like sentinels." however, poole "could not say whether the persons ... were not merely loitering around the fire." there were some boats, he said, both big and little. also, when anybody wanted to cross from the ohio side, the acute poole thought that "a watchword" was given. the night was cold, the rural sleuth admitted, and it was customary to build fires on the river-bank. he observed, however, another suspicious circumstance--"lanterns were passing ... between the house and boats.... most of the people were without guns," he admitted; but, although he could not see clearly, he "apprehended that some of them had guns."[ ] morris p. belknap, an ohio business man, testified that he had hailed a boat and been taken to the island on the night when the gathering and flight took place.[ ] he saw perhaps twenty men in the house; "two or three ... near the door, had rifles, and appeared to be cleaning them. these were all the arms i saw." he also observed two or three boats.[ ] edmund p. dana testified that, with two other young men, he had gone in a skiff to the island on that war-levying night.[ ] in the hall he saw about "fifteen or sixteen" men--"one of them was running some bullets." dana was shown to another room where he met "colonel tyler, blennerhassett, mr. smith of new-york ... and three or four other gentlemen." he had met tyler the day before, and was now "introduced to mr. smith and doctor m'castle[ ] who had his lady ... there." the men in the hall "did not appear to be alarmed" when dana and his companions came in. dana "never saw colonel burr on the island."[ ] the government's counsel admitted that burr was in kentucky at that time.[ ] such was the testimony, and the whole of it, adduced to support the charge that burr had, at blennerhassett's island, on december , , levied war against the united states. such was the entire proof of that overt act as laid in the indictment when marshall was called upon to make that momentous decision upon which the fate of aaron burr depended. the defense moved that, since no overt act was proved as charged, collateral testimony as to what had been said and done elsewhere should not be received. wickham opened the argument in an address worthy of that historic occasion. for nearly two days this superb lawyer spoke. burr's counsel would, he said, have preferred to go on, for they could "adduce ... conclusive testimony" as to burr's innocence. but only seven witnesses out of "about one hundred and forty" summoned by the government had been examined, and it was admitted that these seven had given all the testimony in existence to prove the overt act. if that overt act had not been established and yet the more than one hundred and thirty remaining witnesses were to be examined, it was manifest that "weeks, perhaps months," would elapse before the government completed its case. it was the unhealthy season, and it was most probable that one or more jurors would become ill. if so, said wickham, "the cause must lie over and our client, innocent, may be subjected to a prolongation of that confinement which is in itself ... punishment." yet, after all this suffering, expense, and delay, the result must be the same as if the evidence were arrested now, since there was no testimony to the overt act other than that already given. [illustration: _john wickham_] did that testimony, then, prove the overt act of levying war on the united states? those who wrote the constitution "well knew the dreadful punishments inflicted and the grievous oppressions produced by [the doctrine of] constructive treasons in other countries." for this reason, truly declared wickham, the american constitution explicitly defined that crime and prescribed the only way it could be proved. this could not be modified by the common law, since the united states, as a nation, had not adopted it; and the purpose of the constitution was to destroy, as far as america was concerned, the british theory of treason. the constitution "explains itself," said wickham; under it treason is a newly created offense against a newly created government. even the government's counsel "will not contend that the words [in the constitution concerning treason] used in their natural sense," can embrace the case of a person who never committed an act of hostility against the united states and was not even present when one was committed;[ ] otherwise what horrible cruelties any administration could inflict on any american citizen. the supreme court, in the case of bollmann and swartwout, had, indeed, pronounced a "_dictum_" to the contrary, said wickham, but that had been in a mere case of commitment; the present point did not then come before the court; it was not argued by counsel. so marshall's objectionable language in that case was not authority.[ ] it was only by the doctrine of constructive treason that burr could be said to be at blennerhassett's island at the time charged--the doctrine that "in treason all are principals," and that, by "construction of law," he was present, although in reality he was hundreds of miles away. but this was the very doctrine which the constitution prohibited from ever being applied in america. if burr "conspired to levy war against the united states, and ... the war was carried on by others in his absence, his offense can only be punished by _a special indictment charging the facts as they existed_." the prosecution "should at once withdraw their indictment as it does not contain a specification that can be supported by the evidence."[ ] edmund randolph followed wickham, but added nothing to his rich and solid argument. addressing marshall personally, randolph exclaimed: "amidst all the difficulties of the trial, i congratulate your honour on having the opportunity of fixing the law, relative to this peculiar crime, on grounds which will not deceive, and with such regard for human rights, that we shall bless the day on which the sentence was given, to prevent the fate of stafford."[ ] when randolph closed, on friday, august , hay asked marshall to postpone further discussion until monday, that counsel for the government might prepare their arguments.[ ] burr's attorneys stoutly objected, but marshall wisely granted hay's request.[ ] "did you not do an unprecedented thing," a friend asked marshall, "in suspending a criminal prosecution and granting two days, in the midst of the argument on a point then under discussion, for counsel to get ready to speak upon it?" "yes," replied the chief justice, "i did and i knew it. but if i had not done so i should have been reproached with not being _disposed_ to give the prosecutors an opportunity to answer."[ ] saturday and sunday were more than time enough to light the fires of macrae's scotch wrath. his anger dominated him to such an extent that he became almost incoherent.[ ] burr not a principal! "let all who are in any manner concerned in treason be principals," and treason will be suppressed.[ ] macrae, speaking the language of jeffreys, had, in his rage, forgotten that he had immigrated to america. on tuesday, august , although the court opened at nine o'clock,[ ] the heat was so oppressive that nothing but the public interest--now reaching the point of hysteria--could have kept the densely packed audience in the stifling hall.[ ] but the spectators soon forgot their discomfort. the youthful, handsome william wirt enraptured them with an eloquence which has lived for a century. it is impossible to give a faithful condensation of this charming and powerful address, the mingled courtesy and boldness of it, the apt phrase, the effective imagery, the firm logic, the wealth of learning. only examples can be presented; and these do scant justice to the young lawyer's speech. "when we speak of treason, we must call it treason.... why then are gentlemen so sensitive ... as if instead of a hall of justice, we were in a drawing-room with colonel burr, and were barbarously violating towards him every principle of decorum and humanity?[ ] this motion [to arrest the testimony] is a bold and original stroke in the noble science of defence," made to prevent the hearing of the evidence. but he knew that marshall would not "sacrifice public justice, committed to [his] charge, by aiding this stratagem to elude the sentence of the law."[ ] why had wickham said so little of american and so much of british precedents, vanishing "like a spirit from american ground and ... resurging by a kind of intellectual magic in the middle of the th century, complaining most dolefully of my lord coke's bowels." it was to get as far as possible away from marshall's decision in the case of bollmann and swartwout. if marshall's opinion had been favorable, wickham "would not have ... deserted a rock so broad and solid, to walk upon the waves of the atlantic." wirt made the most of marshall's careless language.[ ] the youthful advocate was impressing marshall as well as jury and auditors. "do you mean to say," asked the chief justice, "that it is not necessary to state in the indictment in what manner the accused, who it is admitted was absent, became connected with the acts on blennerhassett's island?" in reply wirt condensed the theory of the prosecution: "i mean to say, that the _count_ is _general_ in modern cases; that we are endeavoring to make the accused a traitor by connection, by stating the act which was done, and which act, from his conduct in the transaction, he made his own; that it is sufficient to make this charge generally, not only because it is authorized by the constitutional definition, but because it is conformable to modern cases, in which the indictments are pruned of all needless luxuriances."[ ] burr's presence at the island necessary! if so, a man might devise and set in motion "the whole mechanism" of treason, "go a hundred miles" away, let it be operated by his agents, "and he is innocent, ... while those whom he has deluded are to suffer the death of traitors." how infamous! burr only the accessory and blennerhassett the principal! "will any man believe that burr who is a soldier bold, ardent, restless and aspiring, the great actor whose brain conceived and whose hand brought the plot into operation, should sink down into an accessory and blennerhassett be elevated into a principal!" here wirt delivered that passage which for nearly a hundred years was to be printed in american schoolbooks, declaimed by american youth, and to become second only to jefferson's proclamation, messages, and letters, in fixing, perhaps irremovably, public opinion as to aaron burr and harman blennerhassett.[ ] but his speech was not all rhetoric. indeed, no advocate on either side, except john wickham and luther martin, approached him in analyses of authorities and closeness of reasoning.[ ] "i cannot promise you, sir, a speech manufactured out of tropes and figures," remarked botts in beginning his reply. no man better could have been found to break the force of the address of his young brother of the bar. wirt had defaced his otherwise well-nigh perfect address by the occasional use of extravagant rhetoric, some of which, it appears, was not reported. botts availed himself of one such display to make wirt's argument seem absurd and trivial: "instead of the introduction of a sleeping venus with all the luxury of voluptuous and wanton nakedness to charm the reason through the refined medium of sensuality, and to convince us that the law of treason is with the prosecution by leading our imaginations to the fascinating richness ... of heaving bosom and luscious waist, i am compelled to plod heavily and meekly through the dull doctrines of hale and foster." botts continued, with daring but brilliant satire, to ridicule wirt's unhappy rhetoric.[ ] soon spectators, witnesses, jury, were in laughter. the older lawyers were vastly amused. even marshall openly enjoyed the humor. his purpose thus accomplished, botts now addressed himself to the evidence, to analyze which he had been assigned. and a perfect job he made of it. he spoke with impetuous rapidity.[ ] he reviewed the events at blennerhassett's island: "there _was war_, when there was confessedly no war; and it happened although it was prevented!" as to arms: "no arms were necessary ... they might make war with their fingers." yes, yes, "a most bloody war indeed--and ten or twelve boats." referring to the flight from blennerhassett's island, the sarcastic lawyer observed: "if i run away and hide to avoid a beating i am guilty and may be convicted of assault and battery!" what "simpletons" the people of kentucky and mississippi had been! "they hunted but could not find the war," although there it was, right among them![ ] what was the moving force back of the prosecution? it was, charged botts, the rescue of the prestige of jefferson's administration. "it has not only been said here but published in all the newspapers throughout the united states, that if aaron burr should be acquitted it will be the severest satire on the government; and that the people are called upon to support the government by the conviction of colonel burr; ... even jurymen have been taught by the common example to insult him." no lie was too contemptible to be published about him. for instance, "when the grand jury returned a true bill, he was firm, serene, unmoved, composed--no change of countenance.... yet the next day they announced in the newspapers," declared botts, "that he was in a state of indescribable consternation and dismay." worse still, "every man who dares to look at the accused with a smile or present him the hand of friendship" is "denounced as a traitor."[ ] black but faithful was the picture the fearless lawyer drew of the government's conduct.[ ] he dwelt on the devices resorted to for inflaming the people against burr, and after they had been aroused, the demand that public sentiment be heeded and the accused convicted. was that the method of justice! if so, where was the boasted beneficence of democracies? where the righteousness and wisdom of the people? what did history tell us of the justice or mercy of the people? it was the people who forced socrates to drink hemlock, banished aristides, compelled the execution of admiral byng. "jefferson was run down in [ ] by the voice of the people." if the law of constructive treason were to be adopted in america and courts were to execute the will of the people, alas for any man, however upright and innocent, whom public opinion had been falsely led to condemn.[ ] hay, who had been ill for several days[ ] and was badly worn, spoke heavily for the greater part of two days.[ ] his address, though dull, was creditable; but he added nothing in thought or authorities to wirt's great speech. his principal point, which he repeated interminably, was that the jury must decide both law and fact. in making this contention he declared that marshall was now asked by burr's counsel to do the very thing for which chase had been impeached.[ ] time and again the district attorney insinuated that impeachment would be marshall's fate if he did not permit the jury to hear all the testimony.[ ] charles lee, attorney-general under president adams, and an intimate friend of marshall,[ ] had joined burr's legal forces some time before. in opening his otherwise dry argument, lee called marshall's attention to hay's threat of impeachment. the exhausted district attorney finally denied that he meant such a thing, and marshall mildly observed: "i did not consider you as making any personal allusion, but as merely referring to the law."[ ] thus, with his kindly tactfulness, marshall put the incident aside. on august , luther martin closed the debate. he had been drinking even more than usual throughout the proceedings;[ ] but never was he in more perfect command of all his wonderful powers. no outline of his address will be attempted; but a few quotations may be illustrative. it was the admitted legal right and "indispensable duty" of burr's counsel, began martin, to make the motion to arrest the testimony; yet for doing so "we have been denounced throughout the united states as attempting to suppress the truth." our act "has been held up to the public and to this jury as conclusive proof of our guilt." such, declared the great lawyer, were the methods used to convict burr.[ ] he had been in favor, he avowed, of waiving "obvious and undeniable rights," and of going on with the trial because he was convinced that all the evidence would not only clear "his friend," but remove the groundless prejudices which had so wickedly been excited against burr. but he had yielded to the judgment of his associates that the plan adopted was more conformable to law. "i shall ever feel the sincerest gratitude to heaven, that my life has been preserved to this time, and that i am enabled to appear ... in his defense." and if his fellow counsel and himself should be "successful in rescuing a gentleman, for whom i with pleasure avow my friendship and esteem, from the fangs of his persecutors ... what dear delight will my heart enjoy!"[ ] martin thanked heaven, too, for the boon of being permitted to oppose the "destructive" doctrine of treason advanced by the government. for hours he analyzed the british decisions which he "thanked god ... are not binding authority in this country." he described the origin and growth of the doctrine of constructive treason and defined it with clearness and precision.[ ] it was admitted that burr was not actually present at the time and place at which the indictment charged him with having committed the crime; but, according to the government, he was "constructively" present. with perfect fearlessness martin attacked marshall's objectionable language in the bollmann and swartwout opinion from the supreme bench: "as a binding judicial opinion," he accurately declared, "it ought to have no more weight than the ballad of chevy chase."[ ] deftly he impressed upon marshall, hay's threat of impeachment if the chief justice should presume to decide in burr's favor.[ ] lamenting the popular hostility toward burr, martin defied it: "i have with pain heard it said[ ] that such are the public prejudice against colonel burr, that a jury, even should they be satisfied of his innocence, must have considerable firmness of mind to pronounce him _not guilty_. i have not heard it without horror. "god of heaven! have we already under our form of government (which we have so often been told is best calculated of all governments to secure all our rights) arrived at a period when a trial in a court of justice, where life is at stake, shall be but ... a mere idle ... ceremony to transfer innocence from the gaol to the gibbet, to gratify popular indignation excited by bloodthirsty enemies!" martin closed by a personal appeal to marshall: "but if it require in such a situation firmness in a jury, so does it equally require fortitude in judges to perform their duty.... if they do not and the prisoner fall a victim, they are guilty of murder in _foro coeli_ whatever their guilt may be in _foro legis_.... may that god who now looks down upon us, and who has in his infinite wisdom called you into existence and placed you in that seat to dispense justice to your fellow citizens, to preserve and protect innocence against persecution--may that god so illuminate your understandings that you may _know_ what is right; and may he nerve your souls with firmness and fortitude to _act_ according to that knowledge."[ ] the last word of this notable debate had been spoken.[ ] the fate of aaron burr and of american liberty, as affected by the law of treason, now rested in the hands of john marshall. on monday morning, august , the chief justice read his opinion. all richmond and the multitude of strangers within her gates knew that the proceedings, which for four months had enchained the attention of all america, had now reached their climax. burr's friends were fearful, and hoped that the laudanum calumny[ ] would "strengthen" marshall to do his duty.[ ] for the moment the passions of the throng were in abeyance while the breathless spectators listened to marshall's calm voice as it pronounced the fateful words. the opinion of the chief justice was one of the longest ever rendered by him, and the only one in which an extensive examination of authorities is made. indeed, a greater number of decisions, treatises, and histories are referred to than in all the rest of marshall's foremost constitutional opinions. like every one of these, the burr opinion was a state paper of first importance and marked a critical phase in the development of the american nation. marshall stated the points first to be decided: under the constitution can a man be convicted of treason in levying war who was not present when the war was levied; and, if so, can testimony be received "to charge one man with the overt acts of others until those overt acts as laid in the indictment be proved to the satisfaction of the court"? he made clear the gravity of the constitutional question: "in every point of view in which it can be contemplated, [it] is of infinite moment to the people of this country and their government."[ ] what was the meaning of the words, "'levying war'?... had their first application to treason been made by our constitution they would certainly have admitted of some latitude of construction." even so it was obvious that the term "levying war" literally meant raising or creating and making war. "it would be affirming boldly to say that those only who actually constituted a portion of the military force appearing in arms could be considered as levying war." suppose the case of "a commissary of purchases" for an army raised to make war, who supplied it with provisions; would he not "levy war" as much as any other officer, although he may never have seen the army? the same was true of "a recruiting officer holding a commission in the rebel service, who, though never in camp, executed the particular duty assigned to him." but levying war was not for the first time designated as treason by the american constitution. "it is a technical term," borrowed from an ancient english statute[ ] and used in the constitution in the sense understood in that country and this at the time our fundamental law was framed. not only british decisions, but "those celebrated elementary writers" whose "books are in the hands of every student," and upon which "legal opinions are formed" that are "carried to the bar, the bench and the legislature"--all must be consulted in ascertaining the import of such terms.[ ] marshall reviewed coke, hale, foster, and blackstone, and found them vague upon the question "whether persons not in arms, but taking part in a rebellion, could be said to levy war independent of that legal rule [of constructive treason] which attaches the guilt of the principal to an accessory." nor were the british decisions more satisfactory: "if in adjudged cases this question [has] been ... directly decided, the court has not seen those cases."[ ] to trace the origin of "the doctrine that in treason all are principals" was unimportant. however "spurious," it was the british principle settled for ages. the american constitution, however, "comprizes no question respecting principal and accessory"--the traitor must "truly and in fact levy war." he must "perform a part in the prosecution of the war."[ ] marshall then gingerly takes up the challenge of his opinion in the case of bollmann and swartwout. since it had been upon the understanding by the grand jury of his language in that opinion that burr had been indicted for treason, and because the government relied on it for conviction so far as the prosecution depended on the law, the chief justice took pains to make clear the disputed passages. "some gentlemen have argued as if the supreme court had adopted the whole doctrine of the english books on the subject of accessories to treason.[ ] but certainly such is not the fact. those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors. to complete the definition _both_ circumstances must occur. they must 'perform a part' which will furnish the overt act; and they must be 'leagued in the conspiracy.'" did the things proved to have happened on blennerhassett's island amount to the overt act of levying war? he had heard, said marshall, that his opinion in bollmann and swartwout was construed as meaning that "any assemblage whatever for a treasonable purpose, whether in force or not in force, whether in a condition to use violence or not in that condition, is a levying of war." that view of his former opinion had not, indeed, "been expressly advanced at the bar"; but marshall understood, he said, that "it was adopted elsewhere."[ ] relying exclusively on reason, all would agree, he continued, "that war could not be levied without the employment and exhibition of force.... intention to go to war may be proved by words," but the actual going to war must "be proved by open deed."[ ] this natural and reasonable understanding of the term was supported by the authorities. marshall then made specific reference to the opinions of a large number of british writers and judges, and of all american judges who had passed upon the question. in none of these, he asserted, had "the words 'levying war' ... received a technical different from their natural meaning"[ ]--that is, "the employment and exhibition of force." had he overruled all these opinions in the bollmann-swartwout case? had he, in addition, reversed the natural interpretation of the constitution which reason dictated? surely not! yet this was what he was now charged with having done. but, said marshall, "an opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms." a mere implication was not enough. yet this was all there was to justify the erroneous construction of his opinion in the case of bollmann and swartwout--"the omission of the court to state that the assemblage which constitutes the fact of levying war ought to be in force."[ ] marshall then went into an extended and minute analysis of his misunderstood opinion, and painfully labored to show that he then intended to say, as he now did say: that the act of levying war required "an assemblage in force," and not merely "a secret furtive assemblage without the appearance of force." the gathering "must be such as to prove that [war] is its object." if it was not "a military assemblage in a condition to make war, it was not a levying of war."[ ] the indictment charged burr with having levied war at a specific place and stated the exact manner in which the act had been done; this was necessary; otherwise the accused could not make adequate defense. so the indictment "must be proved as laid"; otherwise "the charge of an overt act would be a mischief instead of an advantage to the accused," and would lead him from the true cause and nature of the accusation instead of informing him respecting it.[ ] the government insisted that, although burr "had never been with the party ... on blennerhassett's island, and was, at the time, at a great distance and in a different state,... he was yet legally present, and therefore may properly be charged in the indictment as being present in fact." thus, the question arose "whether in this case the doctrine of constructive presence can apply." in answering it, john marshall ended the contention that so cruel a dogma can ever be applied in america. this achievement was one of his noblest services to the american people.[ ] again an imposing array of precedents was examined. "the man, who incites, aids, or procures a treasonable act," is not, merely on that account, "legally present when that act is committed."[ ] of course, other facts might require that a man should be considered to be present although really absent; for example, if he were on the way there for the purpose of taking part in the specific act charged, or if he were stationed near in order to coöperate with those who actually did the deed, he would be of them and associated with them in the perpetration of that particular act.[ ] but otherwise he could not be said to be present. if this were not so, then a man levying war in one part of the country might be construed to be present at and taking part in hostilities at the most distant point of the republic--a participator in "every overt act performed anywhere"; and he would be liable to trial and conviction "in any state on the continent where any overt act has been committed" by anybody. "he may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that he committed other acts."[ ] if burr were guilty of treason in connection with the assemblage on blennerhassett's island, it was only because burr procured the men to meet for the purpose of levying war against the united states. but the fact that he did procure the treasonable assemblage must be charged in the indictment and proved by two witnesses, precisely as must actual physical presence--since the procuring of the assemblage takes the place of presence at it. "if in one case," declared marshall, "the presence of the individual make the guilt of the assemblage his guilt, and in the other case the procurement by the individual make the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses."[ ] neither presence nor procurement could, therefore, be proved by collateral testimony: "no presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the constitution and the law." and "if procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured, or inferred, can satisfy the constitution and the law. "the mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences, or of reasoning; the fact must be proved by two witnesses," as required by the constitution. "neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures or inferences or of reasoning; the fact itself must be proved by two witnesses."[ ] to the objection that this could "scarcely ever" be done, since "the advising or procurement of treason is a secret transaction," the answer was, said marshall, "that the difficulty of proving a fact will not justify conviction without proof." and most "certainly it will not justify conviction without [one] direct and positive witness in a case where the constitution requires two." the true inference from "this circumstance" was "that the advising of the fact is not within the constitutional definition of the crime. to advise or procure a treason ... is not treason in itself."[ ] the testimony which the government now proposed to offer was to "prove--what? the overt act laid in the indictment? that the prisoner was one of those who assembled at blennerhassett's island? no!" but, instead, "evidence [of] subsequent transactions at a different place and in a different state." but such "testimony was not relevant." if it could be introduced at all, it would be "only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such a manner that the question of fact ought to be left with the jury."[ ] before closing, marshall answered the threats of hay and wirt that, if he decided in favor of burr, he would be impeached: "that this court dares not usurp power is most true. that this court dares not shrink from its duty is not less true.... no man is desirous of becoming the peculiar subject of calumny. no man, might he let the bitter cup pass from him without self reproach, would drain it to the bottom. but if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."[ ] let the jury apply the law as announced to the facts as proved and "find a verdict of guilty or not guilty as their own consciences shall direct." the next morning the petit jury retired, but quickly returned. marshall's brother-in-law, colonel edward carrington, foreman, rose and informed the court that the jury had agreed upon a verdict. "let it be read," gravely ordered marshall. and colonel carrington read the words of that peculiar verdict: "we of the jury say that aaron burr is not proved to be guilty under this indictment by any evidence submitted to us. we therefore find him not guilty."[ ] instantly burr, martin, wickham, and botts were on their feet protesting. this was no verdict, according to law. it was informal, irregular. in such cases, said burr, the jury always was sent back to alter it or else the court itself corrected it; and he accurately stated the proper procedure. discussion followed. hay insisted that the verdict be received and recorded as returned. "it was like the whole play," exclaimed martin, "much ado about nothing." of course the verdict must be corrected. did the jury mean to "censure ... the court for suppressing irrelevant testimony?" unthinkable! and if not, they ought to answer simply "guilty" or "not guilty."[ ] colonel carrington informed the court that, among themselves, the jury had said that "they would alter the verdict if it was informal--it was in fact a verdict of acquittal." richard e. parker, also of the jury, said he never would agree to change the form--they knew what they were about when they adopted it. parker was "a violent jeffersonian partisan," and burr's friends had reproved him for accepting such a man as a member of the jury.[ ] soothingly marshall directed that the verdict "stand on the bill" as the jury wished it; but, since it was "in effect a verdict of acquittal," let "an entry be made on the record of 'not guilty.'" the chief justice "politely thanked the jury for their patient attention during the whole course of this long trial, and then discharged them."[ ] a week before marshall delivered his opinion, an attempt was made to induce blennerhassett to betray burr. on august william duane, editor of the _aurora_, and an intimate friend, supporter, and agent of jefferson, approached blennerhassett for that purpose, and offered to go to washington, "now or at any time hereafter," in his behalf. duane assured him that the administration would refuse him (duane) "nothing he should ask." but blennerhassett repulsed duane's advances.[ ] hay, angry and discomfited, entered a _nolle prosequi_ to the indictments of dayton, blennerhassett, and the others for the same crime; but, in obedience to jefferson's orders, demanded that all of them, burr included, be still held under the charge of treason, that they might be sent for trial to some place where an overt act might have been committed.[ ] marshall, after enduring another long argument, gently put the application aside because all the conspirators were now to be tried upon the charge of misdemeanor under the second indictment.[ ] marshall's motives were clearer than ever to jefferson. "the event has been what was evidently intended from the beginning of the trial; ... not only to clear burr, but to prevent the evidence from ever going before the world. but this latter case must not take place." hay must see to it that "not a single witness be paid or permitted to depart until his testimony has been committed to writing.... these whole proceedings will be laid before congress, that they may ... provide the proper remedy."[ ] jefferson ordered hay to press for trial on the indictment for misdemeanor, not with the expectation of convicting burr, but in the hope that some sort of testimony would be brought out that would convict marshall in the court of public opinion, and perhaps serve as a pretext for impeaching him. thus, in the second trial of which we are now to be spectators, "the chief-justice was occupied in hearing testimony intended for use not against burr, but against himself."[ ] it was for this reason that marshall, when the trial for misdemeanor began, threw open wide the doors to testimony.[ ] burr's counsel, made unwise by victory, insisted that he should not be required to give bail, and marshall, although the point had been decided and was not open to dispute, permitted and actually encouraged exasperatingly extended argument upon it.[ ] burr had submitted to give bail at the beginning, said botts, not because it was "demandable of right," but because he and his counsel "had reason to apprehend danger ... from the violence and turbulence of the mob."[ ] marshall was careful to deliver another long and, except for the political effect, wholly unnecessary opinion; nor was it directly on the matter at issue. counsel floundered through a tangle of questions, marshall exhibiting apparent indecision by manifesting great concern, even on the simplest points. [illustration: _john marshall_ _from the portrait by robert matthew sully, in the corcoran gallery of art, washington, d.c._] finally, he ordered that burr "be acquitted and discharged" as to the indictment for treason, but to be held in five thousand dollars bail under the indictment for misdemeanor. jonathan dayton and william langbourne offered themselves and were accepted as sureties; and on september , after nearly nine weeks of imprisonment, burr walked out of court unhindered, no longer to be under lock and bar and armed guard.[ ] merry were the scenes in the houses of richmond society that night; hilarious the rejoicing about the flowing board of luther martin; and, confused and afflicted with a blurred anger, the patriotic multitude talked resentfully of marshall's decision. on one side it was said that justice had prevailed and persecution had been defeated; on the other, that justice had been mocked and treason protected. hay, wirt, and macrae were bitter and despondent; edmund randolph, botts, martin, and burr, jubilant and aggressive. many conflicting stories sprang up concerning marshall--his majestic bearing on the bench, his servility, his courage, his timidity. one of these has survived: "why did you not tell judge marshall that the people of america demanded a conviction?" a disgusted republican asked of wirt. "tell _him_ that!" exclaimed wirt. "i would as soon have gone to herschel, and told him that the people of america insisted that the moon had horns as a reason why he should draw her with them."[ ] the captain of the "conspiracy" had never lost heart, and, save when angered by marshall's seeming inconsistency and indecision, had continued to be cheery and buoyant. steadily he had assured his friends that, when acquitted, he would again take up and put through his plans. this thought now dominated him. blennerhassett, upon visiting his chief, found burr "as gay as usual, and as busy in speculations on reorganizing his projects for action as if he had never suffered the least interruption," with better prospects for success than ever.[ ] quick to press his advantage, burr the next morning demanded the production of the letters called for in the subpoena _duces tecum_ to jefferson. these had not been forthcoming, and burr asserted the president to be in contempt of court and subject to punishment therefor.[ ] once more altercation flared up in debate. hay said he had one of the letters; that it had not "the most distant bearing on the subject," and that he might prefer "to be put in prison" rather than disclose its contents.[ ] jefferson had become very nervous about marshall's order and plainly feared that the chief justice might attempt to enforce it. the thought frightened him; he had no stomach for a direct encounter. at last he wished to compose the differences between himself and the obstinate and fearless, if gentle-mannered, marshall. so the president directed his district attorney to tell the united states marshal to obey no order of the court and to intimate to the chief justice the wisdom of deferring the vexed question until the next session of congress. he wrote, said jefferson, "in a spirit of conciliation and with the desire to avoid conflicts of authority between the high branches of the government which would discredit equally at home and abroad." naturally burr and his counsel would like "to convert this trial into a contest between the judiciary & exve authorities"; but he had not "expected ... that the ch. justice would lend himself to it." surely marshall's "prudence and good sense" would not "permit him to press it." but if marshall was determined to attack jefferson and "issue any process which [would] involve any act of force to be committed on the persons of the exve or heads of departs," hay was to give jefferson "instant notice, and by express if you find that can be done quicker than by post; and ... moreover ... advise the marshal on his conduct as he will be critically placed between us." the "safest way" for that officer to pursue "will be to take no part in the exercise of any act of force ordered in this case. the powers given the exve by the constn are sufficient to protect the other branches from judiciary usurpation of pre-eminence, & every individual also from judiciary vengeance, and the marshal may be assured of it's effective exercise to cover him." such was jefferson's threat to use force against the execution of the process of the national courts. but the president went on: "i hope however that the discretion of the c. j. will suffer this question to lie over for the present, and at the ensuing session of the legislature [congress] he may have means provided for giving individuals the benefit of the testimony of the exve functionaries in proper cases, without breaking up the government. _will not the associate judge_ [cyrus griffin] _assume to divide his court and procure a truce at least in so critical a conjuncture?_"[ ] when hay acknowledged that he had one of the letters from wilkinson to jefferson, a subpoena _duces tecum_ was served on the district attorney, notwithstanding his gallant declaration that he would not produce it even if he were sent to jail for not doing so. hay then returned a copy of such parts of the letter as he thought "material for the purposes of justice," declining to give those passages which jefferson deemed "confidential."[ ] burr insisted on the production of the entire letter. botts moved that the trial be postponed "till the letter shall be produced." another of that unending series of arguments followed,[ ] and still another of marshall's cautious but convincing opinions came forth. jefferson, he said, had not forbidden the production of the letter--the president, in response to the subpoena upon him, had sent the document to hay, leaving to the discretion of the district attorney the question as to what should be done with it. of course if, for public reasons, jefferson had declined to produce the letter, his "motives may [have been] such as to restrain the court" from compelling him to do so.[ ] at least burr might see the letter now; consideration of the other features of the controversy would be deferred.[ ] the distracted hay, his sour temper made more acid by a "greatly aggravated influenza," wrote jefferson of the government's predicament; marshall's remarks from the bench had not been explicit, he said, and "it is impossible to foresee what his opinion will be unless i could foresee what will be the state of his nerves. wirt, who has hitherto advocated the _integrity_ of the chief justice, now abandons him." the district attorney dolefully tells the president that he is "very decidedly of the opinion, that these prosecutions will terminate in nothing." he thinks the government will be defeated on the trials for misdemeanor, and believes the indictments for that offense should be dismissed and motion made for the commitment of burr, blennerhassett, and smith to be transferred to some spot where their crime might be proved. "instruct me," he begs jefferson, "specially on this point."[ ] jefferson, now on his vacation at monticello, directed hay to press at richmond the trial of burr for misdemeanor. "if defeated it will heap coals of fire on the head of the judge; if convicted, it will give them time to see whether a prosecution for treason can be instituted against him in any, and what court." a second subpoena _duces tecum_ seems to have been issued against jefferson,[ ] and he defiantly refused to "sanction a proceeding so preposterous," by "any notice" of it.[ ] and there this heated and dangerous controversy appears to have ended.[ ] finally, the hearing of evidence began on the indictment against burr for misdemeanor--for having conducted an attack upon mexico. for seven weeks the struggle went on. the government's attorneys showed the effects of the long and losing fight. many witnesses were sent home unexamined or merely leaving their affidavits. hay acted like the sick man he really was. the dour macrae appeared "utterly chop-fallen; an object of disgust to his friends, and pity to his enemies."[ ] only wirt, with his fine gallantry of spirit, bore himself manfully. motions, arguments, opinions continued. one of marshall's rulings on the admissibility of evidence moved blennerhassett to ecstasies.[ ] more than fifty witnesses were examined, the heavy preponderance of the evidence clearly showing that burr's purpose and expectations had been to settle the washita lands and, in case the united states went to war with spain, and _only in that event_, to lead a force against the spaniards. no testimony whatever was given tending to disclose any hostile plans against the united states, or even for an attack upon mexico without war between america and spain, except that of wilkinson, eaton, taylor, allbright, and the morgans, as already set out. one witness also told of a wild and fanciful talk by the eccentric and imaginative blennerhassett.[ ] the credibility of dunbaugh was destroyed. wilkinson was exposed in a despicable light,[ ] and eaton appeared more fantastic than ever; but both these heroes put on looks of lofty defiance. the warrior-diplomat of algerian fame had now fallen so low in the public esteem that one disgusted virginian had threatened to kick him out of a room.[ ] on september , , the district attorney, by attempting to enter a _nolle prosequi_ on the indictment of burr for misdemeanor, tried to prevent the jury from rendering a verdict.[ ] one member of the jury wanted that body to return a special finding; but his associates would have none of it, and in half an hour they reported a straight verdict of "not guilty."[ ] hay dismissed further proceedings against smith and blennerhassett on the indictments for misdemeanor, and then moved to commit burr and his associates upon the charge of treason by "levying war" within the jurisdiction of the united states court for the district of ohio.[ ] on this motion, marshall, as an examining magistrate, gave the government wide scope in the introduction of testimony, to the immense disgust of the triply accused men. blennerhassett thought that marshall was conciliating "public prejudice."[ ] burr told his counsel that the chief justice "did not for two days together understand either the questions or himself ... and should in future be put right by strong language." so angered was he with marshall's "wavering," that at times "burr ... would not trust himself to rise up to sum up and condense the forces displayed by his counsel, into compact columns, after the engagement, toward the close of the day, as is generally his practice."[ ] just at this time appeared a pamphlet[ ] by marshall's brother-in-law, joseph hamilton daveiss. jefferson had removed him from the office of united states attorney for the district of kentucky because of daveiss's failure in his attacks on burr, and the revengeful federalist lawyer and politician retaliated by abusing the president, wilkinson, and burr equally. between daveiss's pamphlet and marshall's sudden admission of evidence, some saw a direct connection; the previous knowledge marshall must have had of his brother-in-law's intended assault, inferred because of "the well-known spirit of clanship and co-operation with which the marshalls and all their connections are so uniformly animated," showed, it was alleged, that the chief justice was working with his kinsman to bring down in indiscriminate ruin, jefferson, burr, and wilkinson together. the last volume of marshall's "life of washington," that "five volumed libel," as jefferson branded the biography, had recently appeared. blennerhassett, who, in expressing his own opinions, usually reflected those of his associates, had "no doubt" that the president's perusal of marshall's last volume and daveiss's pamphlet "inspired jefferson with a more deadly hatred of the marshall faction than he has ever conceived of all the burrites he ever heard of."[ ] the president's partisans in virginia were prompt to stoke the furnace of his wrath. william thompson of petersburgh[ ] wrote a brief "view" of the burr trial and sent "the first . pages" to jefferson, who read them "with great satisfaction" and clamored for more.[ ] marshall's conduct should indeed fill everybody "with alarm," wrote jefferson in reply. "we had supposed we possessed fixed laws to guard us equally against treason & oppression. but it now appears we have no law but the will of the judge. never will chicanery have a more difficult task than has been now accomplished to warp the text of the law to the will of him who is to construe it. our case too is the more desperate as to attempt to make the law plainer by amendment is only throwing out new materials for sophistry."[ ] the federalists in washington, fast dwindling in power and number, experienced as much relief as their chronic melancholia permitted them to enjoy. "had the late vice president and two senators been convicted and executed for treason, it would in the opinion of europe, have reflected disgrace upon our country," notes senator plumer in his diary.[ ] hay, on the other hand, thought that "a correct and perspicuous legal history of this trial would be a valuable document in the hands of intelligent legislators," but that "among others it might perhaps do mischief. it might produce a sentiment toward all judicial system and law itself, the operation of which might perhaps be fatal to the tranquillity and good order of society."[ ] on october , marshall delivered his last opinion in the burr trials. it was upon the government's motion to commit burr and his associates for treason and misdemeanor committed on the dismal island at the mouth of the cumberland, where burr had first greeted his little band of settlers and potential adventurers. he must grant the motion, marshall said, "unless it was perfectly clear that the act was innocent." if there was any doubt, the accused must be held. the chief justice then carefully analyzed all the evidence.[ ] he concluded that burr's purposes were to settle the washita lands and to invade mexico if opportunity offered, perhaps, however, only in the event of war with spain. but whether this was so ought to be left to the jury; marshall would "make no comment upon it which might, the one way or the other, influence their judgment."[ ] he therefore would commit burr and blennerhassett "for preparing and providing the means for a military expedition" against spain. "after all, this is a sort of drawn battle," burr informed theodosia. "this opinion was a matter of regret and surprise to the friends of the chief justice and of ridicule to his enemies--all believing that it was a sacrifice of principle to conciliate _jack cade_. mr. hay immediately said that he should advise the government to _desist from further prosecution_."[ ] if marshall disappointed burr, he infuriated jefferson. in the closing words of his opinion the chief justice flung at the president this challenge: "if those whose province and duty it is to prosecute offenders against the laws of the united states shall be of the opinion that a crime of a deeper dye has been committed, it is at their choice to act in conformity with that opinion"--in short, let jefferson now do his worst. marshall's final opinion and his commitment of burr, under bail, to be tried in ohio for possible misdemeanor at the mouth of the cumberland should a grand jury indict him for that offense, disgusted burr. indeed he was so "exasperated" that "he was rude and insulting to the judge."[ ] nor did marshall's friends in richmond feel differently. they "are as much dissatisfied," records blennerhassett, "with his opinion yesterday as government has been with all his former decisions. he is a good man, and an able lawyer, but timid and yielding under the fear of the multitude, led ... by the vindictive spirit of the party in power."[ ] burr gave the bond of five thousand dollars required by marshall, but in ohio the government declined to pursue the prosecution.[ ] burr put the whole matter out of his mind as a closed incident, left richmond, and started anew upon the execution of his one great plan as though the interruption of it had never happened. marshall hurried away to the blue ridge. "the day after the commitment of col^o. burr for a misdemeanor i galloped to the mountains," he tells judge peters. during the trial peters had sent marshall a volume of his admiralty decisions; and when he returned from his belated vacation, the chief justice acknowledged the courtesy: "i have as yet been able only to peep into the book.... i received it while fatigued and occupied with the most unpleasant case which has ever been brought before a judge in this or perhaps any other country, which affected to be governed by laws, since the decision of which i have been entirely from home.... i only returned in time to perform my north carolina circuit which terminates just soon enough to enable me to be here to open the court for the antient dominion. thus you perceive i have sufficient bodily employment to prevent my mind from perplexing itself about the attentions paid me in baltimore and elsewhere.[ ] "i wish i could have had as fair an opportunity to let the business go off as a jest here as you seem to have had in pennsylvania: but it was most deplorably serious & i could not give the subject a different aspect by treating it in any manner which was in my power. i might perhaps have made it less serious to my self by obeying the public will instead of the public law & throwing a little more of the sombre upon others."[ ] while marshall was resting in the mountains, jefferson was writing his reply to the last challenge of the chief justice.[ ] in his message to congress which he prepared immediately after the burr trials, he urged the house to impeach marshall. he felt it to be his duty, he said, to transmit a record of the burr trial. "_truth & duty alone extort the observation that wherever the laws were appealed to in aid of the public safety, their operation was on behalf of those only against whom they were invoked._" from the record "you will be enabled to judge whether the defect was in the testimony, or in the laws, or _whether there is not a radical defect_ in the administration of the law? and wherever it shall be found the legislature alone can apply or originate the remedy. "the framers of our constitution certainly supposed they had guarded, as well their government against destruction by treason, as their citizens against oppression under pretence of it: and if _the pliability of the law as construed in the case of fries,[ ] and it's wonderful refractoriness as construed in that of burr, shew that neither end has been attained, and induce an awful doubt whether we all live under the same law. the right of the jury too to decide law as well as fact seems nugatory without the evidence pertinent to their sense of the law._ if these ends are not attained it becomes worthy of enquiry by what means more effectual they may be secured?"[ ] on the advice of his cabinet,[ ] jefferson struck out from the message the sentences italicized above. but even with this strong language omitted, congress was told to impeach marshall in far more emphatic terms than those by which jefferson had directed the impeachment of pickering--in plainer words, indeed, than those privately written to nicholson ordering the attack upon chase. jefferson's assault on marshall was also inserted in a message dealing with probable war against great britain and setting out the continuance of our unhappy relations with spain, "to our former grounds of complaint" against which country had "been added a very serious one."[ ] had these grave conditions not engaged the instant attention of congress, had public sentiment--even with part of its fury drawn from burr to great britain--been heeded at the national capital, there can be little doubt that john marshall would have been impeached by the house that was now all but unanimously republican, and would have been convicted by the overwhelmingly jeffersonian senate. well for marshall's peace of mind that he had secluded himself in the solitudes of the blue ridge, for never was an american judge subjected to abuse so unsparing. the jeffersonian press, particularly the _aurora_ and the _enquirer_, the two leading republican papers, went to the limits of invective. "let the judge be impeached," said the _enquirer_; the wickham dinner was recalled--why had marshall attended it? his speech on the jonathan robins case[ ]--"the price of his seat on the bench"--was "a lasting monument of his capacity to defend error." marshall's "wavering and irresolute spirit" manifested throughout the trial had disgusted everybody. his attempt to make his rulings "palatable to all parties" had "so often wrapt them in obscurity" that it was hard "to understand on which side the court had decided." his conduct had been inspired by "power illicitly obtained." and think of his encouragement to burr's counsel to indulge in "unbounded ... slander and vilification" of the president! callender's libel on adams was insipid compared with martin's vulgar billingsgate toward jefferson! but that "awful tribunal"--the people--would try marshall; before it "evidence will neither be perverted nor suppressed.... the character of the chief justice awaits the issue."[ ] another attack soon followed. marshall's disgraceful conduct "has proved that the judges are too independent of the people." let them be made removable by the president on the address of congress. the chase trial had shown that impeachment could not be relied on to cleanse the bench of a judge no matter how "noxious," "ridiculous," "contemptible," or "immoral" he might be. but "shall an imposter be suffered to preside on the bench of justice?... are we to be eternally pestered with that most ridiculous and dangerous cant; that the people ... are incompetent to their own government: and that masters must be set over them and that barriers are to be raised up to protect those masters from the vengeance of the people?"[ ] next came a series of "letters to john marshall," which appeared simultaneously in the _aurora_ and the _enquirer_. they were written by william thompson under the _nom de guerre_ of "lucius"; he undoubtedly was also the author of the earlier attacks on the chief justice in the _enquirer_. they were widely copied in the republican press of the country, and were a veracious expression of public sentiment. "your country, sir, owes you a debt of gratitude for former favors," which cannot be paid because "the whole stock of national indignation and contempt would be exhausted, before the half of your just claim could be discharged." marshall had earned "infamy and detestation" by his efforts to erect "tyranny upon the tomb of freedom." his skill "in conducting the manouvres of a political party," his "crafty cunning" as a diplomat, had been perpetuated by the "genius" of john thompson, whose "literary glory ... will shine when even the splendour of your talents and your crimes shall have faded forever. when your volumes of apology for british insolence and cruelty[ ] shall be buried in oblivion, the 'letters of curtius'[ ] will ... 'damn you to everlasting fame.'" marshall's entire life, according to lucius, had been that of a sly, bigoted politician who had always worked against the people. he might have become "one of the boasted patriots of virginia," but now he was "a disgrace to the bench of justice." he was a jeffreys, a bromley, a mansfield.[ ] quickly appeared a second letter to marshall, accusing him of having "prostrated the dignity of the chief justice of the united states." lucius goes into a lengthy analysis of marshall's numerous opinions in the burr trials. a just review of the proceedings, he said, demonstrates that the chief justice had "exhibited a culpable partiality towards the accused, and a shameless solicitude ... to implicate the government ... as negligent of their duty"--something that "a less malicious magistrate" never would have dared to display.[ ] a third letter continued the castigation of marshall and the defense of jefferson. closing an extended argument on this joint theme, lucius addressed marshall thus: "common sense, and violated justice, cry aloud against such conduct; and demand against you the enforcement of these laws, which you refuse to administer."[ ] all these arraignments of marshall had, as we have seen,[ ] been submitted to jefferson. they rose in the final letter to a climax of vituperation: "could i be instrumental in removing you from the elevation which you have dishonored by ... your crimes, i would still trace you ... for screening a criminal and degrading a judge" by the "juggle of a judicial farce." marshall and burr were alike "morally guilty," alike "traitors in heart and in fact.... such a criminal and such a judge, few countries ever produced.... you are forever doomed to blot the fair page of american history, to be held up, as examples of infamy and disgrace, of perverted talents and unpunished criminality, of foes to liberty and traitors to your country."[ ] incited by similar attacks in the republican press of baltimore,[ ] the more ardent patriots of that place resolved publicly to execute marshall in effigy, along with burr, blennerhassett, and martin, on the morning of november , satirical handbills, announcing this act of public justice, were scattered over the city: "awful!!! "the public are hereby notified that four 'choice spirits' are this afternoon, at o'clock, to be marshaled for execution by the hangman, on gallows hill, in consequence of the sentence pronounced against them by the unanimous voice of every honest man in the community. "the respective crimes for which they suffer are thus stated in the record: "first, chief justice m. for a repetition of his x.y.z. tricks, which are said to be much aggravated by his _felonins_ [_sic_] capers in open court, on the plea of irrelevancy; "secondly, his quid majesty [burr], charged with the trifling fault of wishing to divide the union, and farm _baron_ bastrop's grant; "thirdly, b[lennerhassett], the chemist, convicted of conspiracy to destroy the tone of the public fiddle; "fourthly, and lastly, but not least, _lawyer_ brandy-bottle, for a false, scandalous, malicious prophecy, that, before six months, 'aaron burr would divide the union.' "n.b. the execution of accomplices is postponed to a future day."[ ] martin demanded of the mayor the protection of the law. in response, police were sent to his house and to the evans hotel where blennerhassett was staying. burr and the faithful swartwout, who had accompanied his friend and leader, were escorted by a guard to the stage office, where they quickly left for philadelphia.[ ] martin's law students and other friends armed themselves to resist violence to him. a policeman named goldsmith notified blennerhassett that a great mob was gathering, "had everything prepared for tarring and feathering and would, ... if disappointed or opposed, tear martin [and blennerhassett] to pieces." the manager of the hotel begged blennerhassett to hide in the garret of the hostelry. this the forlorn irishman did, and beheld from a window in the attic what passed below. shouting and huzzaing men poured by, headed by fifers and drummers playing the "rogue's march." midway in the riotous throng were drawn two carts containing effigies of chief justice marshall and the other popularly condemned men "habited for execution.... two troops of cavalry patrolled the streets, not to disperse the mob, but to follow and behold their conduct." at martin's house the crowd stopped for a moment, hurling threats and insults, jeering at and defying the armed defenders within and "the cavalry without." making "as much noise as if they were about to destroy the city," these devotees of justice and liberty proceeded to the place of public execution. there, amid roars of approval, the effigy of john marshall, chief justice of the united states, was hanged by the neck until the executioner pronounced the stuffed figure to be dead. about him dangled from the gibbet the forms of the "traitors"--aaron burr and harman blennerhassett--and also that of luther martin, who had dared to defend them and had thus incurred the malediction of thomas jefferson and "the people."[ ] in the senate giles reported a bill to punish as traitors persons who permitted or aided in the perpetration of certain acts, "although not personally present when any such act was done"; and he supported it in an argument of notable ability. he powerfully attacked marshall, analyzed his opinions in the burr case, contrasted them with those of other national judges, and pointed out the resulting confusion in the interpretation of the law. all this was spoken, however, with careful regard to the rules of parliamentary discussion.[ ] legislation was necessary, said giles; as matters stood, the decisions of judges on treason were like congress "enacting our speeches, interspersed with our laws." with what result? no two judges have yet delivered the same opinion upon some of the most essential features of treason. take for example the british doctrine that, in treason, accessories are principals. were they in america? "judge chase and others say they are. judge marshall says he does not know whether they are or not, but his reasoning would go to show that they are not."[ ] solely to gratify _vox populi_, the senate next indulged in a doubtful performance. an attempt was made to expel senator john smith of ohio. with only a partial examination, and without allowing him to call a single witness in his own behalf beforehand, a special senate committee[ ] presented a report concluding with a resolution to expel smith because of "his participation in the conspiracy of aaron burr against the peace, union and liberties of the people of the united states."[ ] this surprising document was the work of john quincy adams,[ ] who apparently adopted the ideas and almost the language of lucius. burr's conspiracy, wrote adams, was so evil and was "established by such a mass of concurring and mutually corroborative testimony" that the "honor" of the senate and "the deepest interests of this nation" required that nobody connected with it should be a member of congress. after an unctuous recitation of accepted generalities and a review of the expulsion of senator blount, together with an excellent statement of the law of parliamentary bodies in such cases, adams got down to the business of destroying john marshall.[ ] marshall had "withheld from the jury ... a great part of the testimony which was essential to [burr's] conviction.... in consequence of this suppression of evidence" the trial jury had not been allowed to find a verdict of guilty against the traitor. marshall's "decisions, forming the basis of the issue upon the trials of burr ... were the sole inducements upon which the counsel for the united states abandoned the prosecution against him" (smith). an american grand jury had charged senator smith with being "an accomplice" of these diabolical plans, and the safety which marshall's decisions in the burr trial had thrown around smith and other associates of the traitor "cannot, in the slightest degree, remove the imputation" which the indictment of smith had brought to his door. "if," wrote adams, "the daylight of evidence combining one vast complicated intention, with overt acts innumerable, be not excluded from the mind by the curtain of artificial rules, the simplest understanding cannot but see what the subtlest understanding cannot disguise, crimes before which ordinary treason whitens into virtue" and beyond "the ingenuity of a demon." adams continued: "whether the transactions proved against aaron burr did or did not amount, in technical language, to an overt act of levying war, your committee have not a scruple of doubt ... that, but for the vigilance and energy of the government, and of faithful citizens under its directions ... in crushing his designs, they would ... have terminated not only in war, but in a war of the most horrible description, ... at once foreign and domestic." to such lengths can popular demand, however unjust, drive even cold, unemotional, and upright men who are politically ambitious. adams's federalist confrères reacted quickly;[ ] and the _new york evening post_ sharply criticized him.[ ] when the report came up in the senate, james a. bayard of delaware, and james hillhouse of connecticut, attacked it and its author with "unusual virulence." bayard was especially severe.[ ] thus assailed, adams was cast into black depression: "it is indeed a fiery ordeal i have to go through. god speed me through it!" he wrote in his diary that night.[ ] william branch giles cast the deciding vote which defeated adams's resolution--the senate refusing to expel smith by a vote of yeas to nays,[ ] just one short of the necessary two thirds. the virginia republican senator attacked the resolution with all his fiery eloquence, and compelled the admiration even of adams himself.[ ] "i shall vote against the resolution," giles concluded, "solely from the conviction of the innocence of the accused."[ ] herefrom one may judge the temper of the times and the perilous waters through which john marshall had been compelled to pilot the craft of justice. if that "most deliberative legislative body" in our government, and the one least affected by popular storms, was so worked upon, one can perceive the conditions that surrounded the chief justice in overcrowded richmond during the trial of aaron burr, and the real impending danger for marshall, after the acquittal of the man whom jefferson and the majority had branded with the most hideous infamy. fortunate, indeed, for the chief justice of the united states, and for the stability of american institutions, that the machinery of impeachment was, during these fateful months, locked because the president, congress, and the nation were forced to give their attention to the grave foreign situation which could no longer be ignored. going about his duties in washington, or, at home, plodding out to the farm near richmond, joking or gossiping with friends, and caring for his afflicted wife, marshall heard the thunders of popular denunciation gradually swallowed up in the louder and ever-increasing reverberations that heralded approaching war with great britain. before the clash of arms arrived, however, his level common sense and intelligent courage were again called upon to deal with another of those perplexing conditions which produced, one by one, opinions from the supreme bench that have become a part of the living, growing, yet stable and enduring constitution of the american nation. footnotes: [ ] _blennerhassett papers_: safford, . blennerhassett wrote this comment when the trial was nearly over. he said that two hundred men acted as a bodyguard to burr on his way to court each day. [ ] parton: _burr_, . [ ] april , , "register," plumer mss. lib. cong. [ ] swartwout was then twenty-four years old. [ ] parton: _jackson_, i, . [ ] swartwout challenged wilkinson after the trial was over. [ ] see brief account of this incident, including swartwout's open letter to wilkinson, in _blennerhassett papers_: safford, footnote to - . [ ] wilkinson to jefferson, june , , "letters in relation," mss. lib. cong. [ ] jefferson to wilkinson, june , , wilkinson: _memoirs_, ii, appendix xxx. jefferson's letter also contains the following: "you have, indeed, had a fiery trial at new orleans, but it was soon apparent that the clamorous were only the criminal, endeavouring to turn the public attention from themselves, and their leader, upon any other object.... your enemies have filled the public ear with slanders, and your mind with trouble, on that account. the establishment of their guilt, will ... place you on higher ground in the public estimate, and public confidence." [ ] _burr trials_, i, - . [ ] _ib._ - . wilkinson was then giving his testimony before the grand jury. [ ] _ib._ - . [ ] _ib._ - . [ ] _ib._ - . [ ] see _supra_, - . [ ] _burr trials_, i, . [ ] _ib._ . [ ] irving to miss fairlie, july , , irving, i, . [ ] _burr trials_, i, . [ ] _ib._ - . [ ] _burr trials_, i, - . [ ] _ib._ - . [ ] see adams: _u.s._ ii, chap. i; channing: _jeff. system_, - ; hildreth, iii, ; and see vol. iv, chap. i, of this work. [ ] jefferson's proclamation, july , , _works_: ford, x, . [ ] randolph to nicholson, june , , adams: _john randolph_, . [ ] wilkinson to jefferson, june , , "letters in relation," mss. lib. cong. [ ] jefferson to congress, _annals_, th cong. st sess. . [ ] at this time jefferson wrote curious letters, apparently to explain, by inference, to his friends in france his want of energy in the chesapeake affair and the vigor he displayed in the prosecution of burr. "burr's conspiracy has been one of the most flagitious of which history will ever furnish an example.... yet altho' there is not a man in the u s who is not satisfied of the depth of his guilt, such are the jealous provisions of our laws in favor of the accused, ... that i question if he can be convicted." (jefferson to du pont de nemours, july , , _works_: ford, x, ; also see same to lafayette, same date, _ib._ .) it will be observed that in these letters jefferson condemns the laxity of american laws instead of blaming marshall. [ ] _burr trials_, i, - . [ ] irving to miss fairlie, july , , irving, i, . "the only reason given for immuring him in this abode of thieves, cut-throats, and incendiaries," says irving, "was that it would save the united states a couple of hundred dollars (the charge of guarding him at his lodgings), and it would insure the security of his person." [ ] "burr lives in great style, and sees much company within his gratings, where it is as difficult to get an audience as if he really were an emperor." (_blennerhassett papers_: safford, .) at first, however, his treatment was very severe. (see irving to miss fairlie, july , , irving, i, .) [ ] burr to his daughter, july , , davis, ii, . [ ] burr to his daughter, july , , davis, ii, . [ ] same to same, july , , _ib._ . [ ] at a fourth of july celebration in cecil county, maryland, toasts were proposed wishing for the grand jury "a crown of immortal glory" for "their zeal and patriotism in the cause of liberty"; hoping that martin would receive "an honorable coat of tar, and a plumage of feathers" as a reward for "his exertions to preserve the catiline of america"; and praying that burr's treachery to his country might "exalt him to the scaffold, and hemp be his escort to the republic of dust and ashes." (parton: _burr_, .) [ ] see vol. iv, chap. i, of this work. also _supra_, chap. iii. [ ] marshall to the associate justices of the supreme court, june , , as quoted by horace gray, associate justice of the supreme court, in dillon, i, . [ ] parton: _burr_, . [ ] _burr trials_, i, - . [ ] _ib._ - . [ ] _ib._ - . [ ] _burr trials_, i, - . [ ] hay to jefferson, aug. , , jefferson mss. lib. cong. [ ] _burr trials_, i, - . [ ] hay had announced that eaton's testimony would be to the same effect as his deposition. [ ] _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] _blennerhassett papers_: safford, . [ ] it was this farrago, published in every newspaper, that had influenced the country only less than jefferson's special message to congress. [ ] commodore decatur's testimony was almost identical with that of truxtun. more convincing still, general adair, writing before the trial began, told substantially the same story. (adair's statement, march, , as quoted in parton: _burr_, footnote to .) [ ] for the full morgan testimony, see _burr trials_, i, - . [ ] _burr trials_, i, - . [ ] _ib._ - . [ ] _burr trials_, i, - . [ ] belknap was undoubtedly one of those whom poole saw cross the stream. woodbridge and dana were the others. [ ] _burr trials_, i, . [ ] these young men were thinking of joining the expedition. [ ] the physician who accompanied the party. [ ] _burr trials_, i, - . [ ] _ib._ . [ ] _burr trials_, i, - . [ ] _ib._ - . [ ] _burr trials_, i, . [ ] _ib._ ii, - . [ ] _ib._ . [ ] _ib._ - . [ ] _blennerhassett papers_: safford, - . [ ] alston's description in _ib._ . [ ] _burr trials_, ii, . [ ] _blennerhassett papers_: safford, . [ ] the temperature was very high throughout the trial. one night blennerhassett was overcome by it. (_ib._ .) [ ] _burr trials_, ii, . [ ] _ib._ - . [ ] _burr trials_, ii, - . [ ] _ib._ . [ ] see _burr trials_, ii, - . for this famous passage of wirt's speech, see appendix e. burr was vastly amused by it and it became "a standing joke with him for the rest of his life." (see parton: _burr_, .) but it was no "joke"--standing or otherwise--to the people. they believed wirt's imagery to be a statement of the facts. [ ] "wirt raised his reputation yesterday, as high as macrae sunk his the day before." (_blennerhassett papers_: safford, .) [ ] _burr trials_, ii, - . [ ] see hay's complaint that botts talked so fast that he could not make notes on his points. (_ib._ .) [ ] _burr trials_, ii, - . [ ] _ib._ . another story "propagated through the crowd" was that burr had, by his "emissaries," attempted to poison with laudanum one of the government's witnesses--this although the particular witness had been brought to richmond to testify only that wilkinson was not in the pay of spain. (_blennerhassett papers_: safford, .) [ ] _burr trials_, ii, - . [ ] botts here refers to the public outcry against jefferson, while governor during the revolution, that nearly resulted in his impeachment. (see vol. i, - , of this work.) [ ] _burr trials_, ii, - . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ - . [ ] _ib._ - , . [ ] see vol. ii, , , of this work. [ ] _burr trials_, ii, - . [ ] blennerhassett, in his diary, makes frequent mention of martin's drinking: "martin was both yesterday and to-day more in his cups than usual, and though he spared neither his prudence nor his feelings, he was happy in all his hits." (_blennerhassett papers_: safford, .) "i ... recommended our brandy ... placing a pint tumbler before him. no ceremonies retarded the libation." (_ib._ .) "luther martin has just made his final immersion into the daily bath of his faculties." (_ib._ .) [ ] _burr trials_, ii, . [ ] _burr trials_, ii, . [ ] _ib._ - ; see also - , - . [ ] _burr trials_, ii, . [ ] _ib._ . [ ] one of those who told martin this was marshall himself. see _supra_, . [ ] _burr trials_, ii, - . [ ] randolph made another speech, but it was of no moment. [ ] see _supra_, footnote to . [ ] _blennerhassett papers_: safford, . [ ] _burr trials_, ii, ; also in cranch, . [ ] th, of edward iii. [ ] _burr trials_, ii, - ; cranch, . [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, - ; cranch, . [ ] the doctrine that accessories are as guilty as principals. [ ] _burr trials_, ii, - ; cranch, . this reference is to jefferson's explanation of marshall's opinion in bollmann and swartwout, which giles and other republican leaders were proclaiming throughout virginia. it had been adopted by the grand jury; and it was this construction of marshall's language under which they returned the bills of indictment for treason. had the grand jury understood the law to be as marshall was now expounding it, burr would not have been indicted for treason. [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, - ; cranch, - . [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, - ; cranch, - . [ ] _burr trials_, ii, ; cranch, . [ ] this part of marshall's opinion (_burr trials_, ii, - ; cranch, - ) is reproduced in full in appendix f. [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, - ; cranch, . these paragraphs furnish a perfect example of marshall's method of statement and logic--the exact antithesis plainly put, the repetition of precise words with only the resistless monosyllables, "if" and "then," between them. [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, ; cranch, . [ ] _burr trials_, ii, - ; cranch, . [ ] _burr trials_, ii, . [ ] _burr trials_, ii, - . martin was right; the verdict should have been either "guilty" or "not guilty." [ ] _blennerhassett papers_: safford, . [ ] _burr trials_, ii, . [ ] _blennerhassett papers_: safford, - ; and see adams: _u.s._ iii, , - . duane was known to have unbounded influence with jefferson, who ascribed his election to the powerful support given him by the _aurora_. government agents also tried to seduce colonel de pestre, another of burr's friends, by insinuating "how handsomely the col. might be provided for in the army, if his principles ... were not adverse to the administration." de pestre's brother-in-law "had been turned out of his place as clerk in the war office, because he could not accuse the col. of burr-ism." (_blennerhassett papers_: safford, - .) [ ] _burr trials_, ii, - . [ ] _ib._ . [ ] jefferson to hay, sept. , , as quoted in adams, _u.s._ iii, ; and see _jefferson_: randolph, iv, . [ ] adams: _u.s._ iii, . [ ] see _infra_, . [ ] _burr trials_, ii, - . [ ] _ib._ . this statement of botts is of first importance. the whole proceeding on the part of the government was conspicuously marked by a reliance upon public sentiment to influence court and jury through unceasing efforts to keep burning the fires of popular fear and hatred of burr, first lighted by jefferson's proclamation and message. much repetition of this fact is essential, since the nature and meaning of the burr trial rests upon it. [ ] _burr trials_, ii, - . [ ] van santvoord: _sketches of the lives and judicial services of the chief-justices of the united states_, . yet popular sentiment was the burden of many of the speeches of government counsel throughout the trial. [ ] _blennerhassett papers_: safford, . [ ] _burr trials_, ii, . [ ] _ib._ . [ ] jefferson to hay, no date; but paul leicester ford fixes it between august and , . it is, says ford, "the mere draft of a letter ... which may never have been sent, but which is of the utmost importance." (_works_: ford, x, - .) it would seem that jefferson wrote either to marshall or judge griffin personally, for the first words of his astounding letter to hay were: "the _enclosed letter_ is written in a spirit of conciliation," etc., etc. whether or not the president actually posted the letter to hay, the draft quoted in the text shows the impression which marshall's order made on jefferson. (italics the author's.) [ ] _burr trials_, ii, - . [ ] _ib._ - . [ ] this remark of marshall would seem to indicate that hay had tried to patch up "a truce" between the president and the chief justice, as jefferson desired him to do. if so, it soon expired. [ ] _burr trials_, ii, - . [ ] hay to jefferson, sept. , , jefferson mss. lib. cong. [ ] the printed record does not show this, but jefferson, in his letter to hay, september , says: "i received, late last night, your favor of the day before, and now re-enclose you the subpoena." [ ] jefferson to hay, sept. , , _works_: ford, x, . [ ] for some reason the matter was not again pressed. perhaps the favorable progress of the case relieved burr's anxiety. it is possible that the "truce" so earnestly desired by jefferson was arranged. [ ] _blennerhassett papers_: safford, . [ ] "today, the chief justice has delivered an able, full, and luminous opinion as ever did honor to a judge, which has put an end to the present prosecution." (_blennerhassett papers_: safford, .) [ ] _annals_, th cong. st sess. - . [ ] this appears from the record itself. (see wilkinson's testimony, _ib._ - ; also testimony of major james bruff, _ib._ - .) blennerhassett, who usually reported faithfully the general impression, notes in his diary: "the general exhibited the manner of a sergeant under a courtmartial, rather than the demeanor of an accusing officer confronted with his culprit." (_blennerhassett papers_: safford, .) [ ] _ib._ . [ ] record, mss. archives u.s. circuit court, richmond, va. [ ] _blennerhassett papers_: safford, . [ ] _ib._ - . [ ] _ib._ . [ ] _ib._ - . [ ] daveiss: "a view of the president's conduct concerning the conspiracy of ." [ ] _blennerhassett papers_: safford, - . [ ] _ib._ . [ ] the brother of john thompson, author of "the letters of curtius" which attacked marshall in . (see vol. ii, - , of this work.) [ ] thompson's "view" was published as a series of letters to marshall immediately after the trial closed. (see _infra_, - .) [ ] jefferson to thompson, september , , _works_: ford, x, - . [ ] plumer, aug. , , "diary," plumer mss. lib. cong. [ ] hay to jefferson, oct. , , jefferson mss. lib. cong. [ ] this statement is lucid, conspicuously fair, and, in the public mind, would have cleared burr of any taint of treason, had not jefferson already crystallized public sentiment into an irrevocable conviction that he was a traitor. (see _annals_, th cong. st sess. - .) [ ] _ib._ [ ] burr to his daughter, oct. , , davis, ii, - . [ ] hay to jefferson, oct. , , jefferson mss. lib. cong. [ ] _blennerhassett papers_: safford, . if this were only the personal opinion of burr's gifted but untrustworthy associate, it would not be weighty. but blennerhassett's views while at richmond, as recorded in his diary, were those of all of burr's counsel and of the richmond federalists. [ ] no wonder the government abandoned the case. nearly all the depositions procured by hay under jefferson's orders demonstrated that burr had not the faintest intention of separating the western states from the union, or even of attacking mexico unless war broke out between spain and the united states. see particularly deposition of benjamin stoddert of maryland, october , (_quarterly pub. hist. and phil. soc. ohio_, ix, nos. and , - ); of general edward tupper of ohio, september , (_ib._ - ); and of paul h. m. prevost of new jersey, september , (_ib._ - ). [ ] see _infra_, . [ ] marshall to peters, nov. , , peters mss. pa. hist. soc. [ ] hay, for the moment mollified by marshall's award of two thousand dollars as his fee, had made no further complaint for several days. [ ] see _supra_, chap. i, - ; also vol. ii, - , of this work. [ ] jefferson's seventh annual message, first draft, _works_: ford, x, - . [ ] see notes of gallatin and rodney, _works_: ford, x, footnotes to - . [ ] jefferson's seventh annual message, second draft, _works_: ford, x, . blennerhassett, and probably burr, would not have grieved had marshall been impeached. it would be "penance for that timidity of conduct, which was probably as instrumental in keeping him from imbruing his hands in our blood as it was operative in inducing him to continue my vexations [the commitment of the conspirators to be tried in ohio], to pacify the menaces and clamorous yells of the cerberus of democracy with a sop which he would moisten, at least, with the tears of my family." (_blennerhassett papers_: safford, .) [ ] see vol. ii, - , of this work. [ ] "portrait of the chief justice," in the richmond _enquirer_, nov. , . this article fills more than two closely printed columns. it discusses, and not without ability, the supposed errors in marshall's opinions. [ ] _enquirer_, nov. , . [ ] marshall's _life of washington_. [ ] see vol. ii, - , of this work. [ ] "letters to john marshall, chief justice of the united states," in the _aurora_, reprinted in the _enquirer_, dec. , . [ ] _enquirer_, dec. , . [ ] _ib._ dec. , . [ ] see _supra_, - . [ ] _enquirer_, dec. , . [ ] _blennerhassett papers_: safford, . [ ] _blennerhassett papers_: safford, . [ ] gathering a few dollars from personal friends, burr sailed for england, hoping to get from the british government support for his plans to revolutionize mexico. at first all went well. men like jeremy bentham and sir walter scott became his friends and admirers. but the hand of jefferson followed him; and on representations of the american minister, the british government ordered him to leave the united kingdom immediately. next he sought the ear of napoleon; but again he was flouted and insulted by the american diplomatic and consular representatives--he was, they said, "a fugitive from justice." his last sou gone, ragged and often hungry, he managed at last, by the aid of one john reeves, to secure passage for boston, where he landed may , . then he journeyed to new york, where he arrived june in abject poverty and utterly ruined. but still his spirit did not give way. soon, however, fate struck him the only blow that, until now, ever had brought this iron man to his knees. his passionately beloved little grandson, aaron burr alston, died in june. in december, another and heavier stroke fell. his daughter sailed from charleston, south carolina, to join and comfort her father and be comforted by him. her ship was lost in a storm, and theodosia the beautiful, the accomplished, the adored, was drowned. then, at last, the heart of aaron burr was broken. of the many ridiculous stories told of burr and his daughter, one was that her ship was captured by pirates and she, ordered to walk the plank, did so with her child in her arms "without hesitation or visible tremor." this absurdity was given credit and currency by harriet martineau. (see martineau: _western travels_, ii, - .) theodosia's child had died six months before she sailed from charleston to go to her father, and she embarked in a pilot boat, about which no pirate would have troubled himself. the remainder of burr's long life was given to the practice of his profession. his industry, legal learning, and ability, once more secured for him a good business. in , marshall ruled on an application to restore an attorney named burr to the bar of the circuit court of the district of columbia from which he had been suspended for unprofessional conduct. (_ex parte_ burr, wheaton, - .) it has often been erroneously supposed that this applicant was aaron burr: he was, however, one levi burr, a local practitioner, and not related to aaron burr. it is characteristic of burr that he remembered the great lawyer who voluntarily had hastened to defend him at richmond, and luther martin--aged, infirm, and almost deranged--was taken to the home of aaron burr and tenderly cared for until he died. burr's marriage, at the age of seventy-eight, to madame jumel was, on his part, inexplicable; it was the only regrettable but not unworthy incident of the latter years of his life. (see shelton: _jumel mansion_, - .) burr's new york friends were loyal to him to his very last day. his political genius never grew dim. he early suggested and helped to bring about the nomination of andrew jackson for the presidency. thus did he pay the debt of gratitude for the loyalty with which the rugged tennesseean had championed his cause against public opinion and administration alike. during the summer of his last illness came upon him. when his physician said that he could live but a few hours longer, a friend at his bedside asked the supposedly expiring man "whether in the expedition to the southwest he had designed a separation of the union." believing himself to be dying, burr replied: "no! i would as soon have thought of taking possession of the moon and informing my friends that i intended to divide it among them." to a man, his most intimate friends believed this statement to be true. finally, on september , , aaron burr died and was buried near his father at princeton, new jersey, where the parent had presided over, and the son had attended, that alma mater of so many patriots, soldiers, and statesmen. for two years his burial place was unmarked. then, at night-time, unknown friends erected over his grave a plain marble shaft, bearing this inscription: aaron burr born feb. , died sept. , colonel in the army of the revolution vice-president of the united states from to (_gulf states historical magazine_, ii, .) parton's _life of burr_ is still the best story of this strange life. but parton must be read with great care, for he sometimes makes statements which are difficult of verification. a brief, engaging, and trustworthy account of the burr episode is _aaron burr_, by isaac jenkinson. until the appearance of professor mccaleb's book, _the aaron burr conspiracy_, mr. jenkinson's little volume was the best on that subject. professor mccaleb's thorough and scholarly study is, however, the only exhaustive and reliable narrative of that ambitious plan and the disastrous outcome of the attempted execution of it. [ ] _blennerhassett papers_: safford, - ; also see _baltimore american_, nov. , , , . [ ] _annals_, th cong. st sess. - . [ ] the bill passed the senate, but foreign affairs, and exciting legislation resulting from these, forced it from the mind of the house. (see vol. iv, chap. i, of this work.) [ ] john quincy adams of massachusetts, samuel maclay of pennsylvania, jesse franklin of north carolina, samuel smith of maryland, john pope of kentucky, buckner thruston of kentucky, and joseph anderson of tennessee. (_annals_, th cong. st sess. .) [ ] smith had been indicted for treason and misdemeanor, but hay had entered a _nolle prosequi_ on the bills of indictment after the failure of the burr prosecution. (_memoirs, j. q. a._: adams, i, .) [ ] adams had been indulging in political maneuvers that indicated a courtship of the administration and a purpose to join the republican party. his course had angered and disgusted most of his former federalist friends and supporters, who felt that he had deserted his declining party in order to advance his political fortunes. if this were true, his performance in writing the committee report on the resolution to expel smith was well calculated to endear him to jefferson. adams expressed his own views thus: "on most of the great national questions now under discussion, my sense of duty leads me to support the administration, and i find myself of course in opposition to the federalists in general.... my political prospects are declining." (_memoirs, j. q. a._: adams, i, - .) the federalist legislature of massachusetts grossly insulted adams by electing his successor before adams's term in the senate had expired. adams resigned, and in march, , president madison appointed him minister to russia, and later minister to great britain. president monroe made the former federalist his secretary of state. no republican was more highly honored by these two republican presidents than was john quincy adams. [ ] adams did not, of course, mention marshall by name. his castigation of the chief justice, however, was the more severe because of the unmistakable designation of him. (see _writings, j. q. a._: ford, iii, - ; also _annals_, th cong. st sess. - .) it must be remembered, too, that this attack upon marshall comes from the son of the man who, on january , , appointed marshall chief justice. (see vol. ii, - , of this work.) but john quincy adams soon came to be one of the stanchest supporters and most ardent admirers that marshall ever had. it was peculiarly characteristic of marshall that he did not resent the attack of adams and, for the only time in his judicial career, actually interested himself in politics in behalf of adams. (see vol. iv, chap. ix, of this work.) [ ] adams's colleague senator pickering was, of course, disgusted (see his letter to king, jan. , , king, v, ), and in a pamphlet entitled "a review of the correspondence between the hon. john adams and the late william cunningham, esq." which he published in , pickering wrote that the resolution "outraged ... every distinguished lawyer in america" (see p. of pamphlet). king thought adams "indiscreet" (see his letter to pickering, jan. , , king, v, ). plumer declared that the report "had given mortal offence" in new hampshire (see _mass. historical society proceedings_, xlv, ). john lowell asserted that "justice ... was to be dragged from her seat ... and the eager minister of presidential vengeance seemed to sigh after the mild mercies of the star chamber, and the rapid movements of the revolutionary tribunal" (see his "remarks" as quoted in _writings, j. q. a._: ford, iii, footnote to ). [ ] jan. , , _memoirs, j. q. a._: adams, i, ; see also _writings, j. q. a._: ford, iii, footnote to . [ ] "he poured himself forth in his two speeches to-day.... it was all a phillipic upon me." (jan. , , _memoirs, j. q. a._: adams, i, .) [ ] _ib._ [ ] _annals_, th cong. st sess. . [ ] "mr. giles, in one of the most animated and eloquent speeches i ever heard him make, declared himself ... against the resolution for expulsion. he argued the case of mr. smith with all his eloquence, and returned to the charge with increasing warmth until the last moment." (april , , _memoirs, j. q. a._: adams, i, .) [ ] _annals_, th cong. st sess. - . chapter x fraud and contract if i were to characterize the united states, it should be by the appellation of the land of speculation. (william priest.) by the god of heaven, if we go on in this way, our nation will sink into disgrace and slavery. (john tyler.) millions of acres are easily digested by such stomachs. they buy and sell corruption in the gross. (john randolph.) when a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights. the people can act only by their agents and, within the powers conferred upon them, their acts must be considered as the acts of the people. (marshall.) the honorable william longstreet was an active and influential member of the georgia legislature during the winter of - . he was also a practical man. an important bill was then before that body, and mr. longstreet employed effective methods to forward its passage. the proposed legislation was to authorize the sale to four speculating land companies[ ] of most of that territory which comprises the present states of alabama and mississippi. "why are you not in favor of selling the western lands?" frequently asked representative longstreet of his fellow member, clem lanier. "because i do not think it right to sell to companies of speculators," was the answer. "better vote for the bill," observed his seat mate, representative henry gindrat, one day as they sat chatting before the speaker of the house took the chair. "it will be worth your while. senator thomas wylly says that he can have eight or ten likely negroes for his part." that afternoon senator wylly came to lanier and began to talk of the land bill. a mr. dennison sauntered up. wylly left, and the newcomer remarked that, of course, he advised no legislator how to vote, but he could not help noticing that all who favored the sale of the lands "were handsomely provided for." if lanier should support the bill, he would be taken care of like the rest. he was buying, dennison said, from members who wished to sell lands allotted to them for agreeing to support the measure. once more came longstreet, who "presented a certificate entitling the bearer to two shares of twenty-five thousand acres each," as security that lanier would be rewarded if he voted for the sale bill. the obdurate representative, who wished to probe the depths of the plot, objected, and longstreet assured him that he would immediately procure "another certificate ... for the same number of acres." but lanier finally declined the bribe of seventy-five thousand acres of land.[ ] representative gindrat had offered to sell his shares for one thousand dollars, the price generally given; but, securing "a better market," declined that sum.[ ] representative lachlan m'intosh received six shares in one of the land companies, which he sold at a premium of two hundred and fifty dollars each.[ ] after the bill had passed, senator robert thomas, who had no means of acquiring ready cash,[ ] brought two thousand dollars to the house where he boarded and asked philip clayton, the owner, to keep it for him. clayton was curious--did senator thomas get the money for his share of the lands? he inquired. "it is nothing to you; take care of it," answered the suddenly affluent legislator, smiling.[ ] representative longstreet offered representative john shepperd one hundred thousand acres, but shepperd was not interested; then philip clayton, the tavern-keeper, offered him seventy pounds to go home for the session.[ ] a saturnalia of corruption was in progress in the little village of augusta, where the legislature of georgia was in session.[ ] the leading men of that and neighboring states were on the ground urging the enactment of the law in which all were interested. wade hampton of south carolina was on hand. state and national judges were present. james wilson of pennsylvania, associate justice of the supreme court of the united states, was there with twenty-five thousand dollars in bank bills.[ ] william smith, judge of the superior court of georgia, added his influence, receiving for his services as lobbyist thirteen thousand dollars. nathaniel pendleton, judge of the united states court for that district, urged the legislation and signed and issued the certificates for shares that were given to the members for their votes.[ ] directing all was general james gunn, united states senator from georgia: his first term in the national senate about to expire, he was now reëlected by this very legislature.[ ] a majority of georgia's lawmaking body thus became financially interested in the project, and the bill passed both houses. but governor george mathews vetoed the measure, because he thought the time not propitious for selling the lands, the price too low, the reservations for georgians too small, and the principle of monopoly wrong.[ ] another bill was prepared to meet some of the governor's objections. this was introduced as a supplement to a law just enacted to pay the state troops.[ ] again every possible influence was brought upon the legislature to pass this bill with utmost dispatch.[ ] some members, who would not support it, were induced to leave the tiny georgia capital; others, who were recalcitrant, were browbeaten and bullied. senator gunn, the field marshal of this legislative campaign, strode about the village arrayed in broadcloth, top boots, and beaver hat, commending those who favored the bill, abusing those who opposed it. in his hand he carried a loaded whip, and with this the burly senator actually menaced members who objected to the scheme.[ ] in a little more than one week the bill was rushed through both houses. this time it received the reluctant approval of the governor, and on january , , became a law. in such fashion was enacted the legislation which disposed of more than thirty-five million acres of fertile, well-watered, heavily wooded land at less than one and one half cents an acre.[ ] the purchasers were four companies known as the georgia company, the georgia mississippi company, the tennessee company, and the upper mississippi company. the total purchase price was five hundred thousand dollars in specie or approved currency, one fifth to be deposited with the state treasurer before the passage of the act, and the remainder to be paid on or before november , . the governor was directed to execute a deed in fee-simple to the men composing each company as tenants in common; and the deferred payments were secured by mortgages to the governor, to be immediately foreclosed upon default of payment, and the one fifth already deposited to be forfeited to the state. two million acres were reserved for exclusive entry by citizens of georgia, and the land companies were bound to form settlements within five years after the indian titles had been extinguished. the lands were declared free of taxation until they should be so occupied that the settlers were represented in the legislature.[ ] governor mathews executed deeds in compliance with the law, and, the entire amount of the purchase money having been paid into the state treasury before november , the mortgages were canceled and the transaction was closed in accordance with the provisions of the statute. so far as that legislation and the steps taken in pursuance of it could bring about such a result, the legal title to practically all of the domain stretching from the present western boundary of georgia to the mississippi river, and from the narrow strip of spanish territory on the gulf to the tennessee line, was transferred to the men composing these four land companies. the greatest real estate deal in history was thus consummated. but even while this bill was before the legislature, popular opposition to it began. a young man of twenty-three was then teaching in a little school-house at augusta, but he was destined to become united states senator, minister to france, secretary of the treasury, and candidate for president. enraged at what he believed the despoiling of the people by a band of robbers using robbers' methods, young william h. crawford hurried to his home in columbia county, got up a petition to the governor to reject the bill again, and hurried to the capital where he presented it to the chief executive of the state.[ ] but governor mathews, against whom no man, then or thereafter, charged corrupt motives, persisted in signing the measure. and it must be said that the bill was not without merit. georgia was but thinly populated, not more than fifty thousand human beings inhabiting its immense extent of savanna and forest. most of these people were very poor[ ] and unable to pay any public charges whatever. the state treasury was empty; the state troops, who had been employed in the endless indian troubles, were unpaid and clamoring for the money long due them; the state currency had so depreciated that it was almost without value. no commonwealth in the union was in worse financial case.[ ] moreover, the titles of the indians, who occupied the country and who were its real owners, had not been extinguished. under the constitution, the national government alone could deal with the tribes, and it had long been urging georgia to cede her claims to the united states, as virginia and connecticut had done. indeed, the state had once offered to make this cession, but on such terms that congress had refused to accept it. the purchasers now took whatever title georgia had, subject to these burdens, the state to be saved from all annoyance on account of them. the tribes were powerful and brave, and they had been prompt and bold in the defense of their lands. the creeks alone could put nearly six thousand fighting men in the field, and the choctaws had more than four thousand trained warriors.[ ] the feeble and impoverished state had never been able to subdue them, or to enforce in the slightest degree the recognition of the state's title to the country they inhabited. georgia's right to their lands "depended on her power to dispossess the indians; but however good the title might be, the state would have been fortunate to make it a free gift to any authority strong enough to deal with the creeks and cherokees alone."[ ] the sale of the territory was not a new or novel project. six years earlier the state had disposed of twenty-five million five hundred thousand acres of the same territory to four land companies on much poorer terms.[ ] jefferson, then secretary of state, rendered a careful opinion on the right of georgia to make the grant.[ ] these purchasers had tendered payment in south carolina and continental scrip that was practically worthless; the treasurer of georgia had properly refused to accept it; and there ended the transaction as far as the state was concerned. a suit was later brought against georgia by the grantees[ ] to compel the performance of the contract; but the eleventh amendment of the constitution thwarted that legal plan. so these speculators dropped the matter until the sale just described was made to the new companies six years later. the most active promoters of the first purchasing companies, in , were mere adventurers, although at first patrick henry and other men of honor and repute were interested in the speculation. henry, however, soon withdrew.[ ] the consummation of their deal with georgia required the payment of sound money and _bona-fide_ settlement by actual tillers of the soil. also, the adventurers got into trouble with the indians, became gravely involved in spanish intrigue, and collided with the national government;[ ] so the enterprise lost, for a time, all attractiveness for these speculators. the new land companies, on the other hand, were for the most part composed of men of excellent reputations.[ ] at the head of the largest, the georgia company, were united states senator james gunn and united states attorney for the district of georgia, mathew mcalister; associated with them, in addition to judges stith and pendleton, and justice wilson, were robert goodloe harper, representative in congress from maryland, robert morris, the financier of the revolution, and others of substance and position.[ ] also, as has been stated, they paid for their lands in the money called for by the act--the best money then circulating in america. the first sales of indian lands to which georgia claimed title were known as the "yazoo" speculation, and this designation stuck to the second transaction. in the six years that had intervened between the sales to the irresponsible land-jobbers of and the solvent investors of , an event of world importance had occurred which doubled and trebled the value of all cotton-bearing soil. eli whitney, a connecticut school-teacher twenty-seven years of age, had gone to georgia in to act as a private tutor. finding the position taken, he studied law while the guest of the widow of general nathanael greene. this discerning woman, perceiving that the young man was gifted with inventive genius, set him to work on a device for separating cotton from the seed. the machine was built, and worked perfectly. the news of it traveled with astonishing rapidity throughout georgia and the south. the model was stolen; and so simple was the construction of it that everywhere in cotton-growing lands it was freely reproduced by planters great and small. the vast sweep of territory stretching from georgia to the father of waters, the best cotton land in the world, thus rose in value as if the wand of a financial deity had been waved over it. settlers poured into georgia by the thousand, and indian atrocities were now as little feared as indian rights were respected.[ ] the purchase of the unoccupied georgia lands by the _bona-fide_, if piratical, land companies of became, therefore, an adventure far more valuable in possibilities for the investors, and incomparably more attractive in the probability of political advantage to those who resisted it, than the innocuous and unopposed sale to the yazoo swindlers of six years previous. so it fell out that the mechanical genius of eli whitney, in , called into action, exactly eighteen years afterward, the judicial genius of john marshall. his opinion in fletcher _vs._ peck was one of the first steps toward the settling of the law of public contract in the riotous young republic--one of the earliest and strongest judicial assertions of the supremacy of nationalism over localism. and never more than at that particular time did an established rule on these vital subjects so need to be announced by the highest judicial authority. since before the revolution, all men had fixed their eyes, hopes, and purposes upon land. not the humble and needy only, but the high-placed and opulent, had looked to the soil--the one as their chief source of livelihood, and the other as a means of profitable speculation. indeed, dealing in land was the most notable economic fact in the early years of the american nation. "were i to characterize the _united states_," chronicles one of the most acute british travelers and observers of the time, "it should be by the appellation of the _land of speculation_."[ ] from the nation's beginning, the states had lax notions as to the sacredness of public contracts, and often violated the obligations of them.[ ] private agreements stood on a somewhat firmer basis, but even these were looked upon with none too ardent favor. the most familiar forms of contract-breaking were the making legal tender of depreciated paper, and the substitution of property for money; but other devices were also resorted to. so it was that the provision, "no state shall pass any law impairing the obligation of contracts," was placed in the constitution.[ ] the effect of this on the public mind, as reported by conservatives like marshall, is stated in the _commercial gazette_ of boston, january , : "state laws protected debtors" when they "were citizens ... [and] the creditors foreigners. the federal constitution, prohibiting the states to clear off debts _without payment_, by exacting _justice_, seemed ... to establish _oppression_." the debtors, therefore, "pronounced ... the _equal_ reign of law and debt-compelling justice, the beginning of an insidious attack on liberty and the erection of aristocracy." the "contract clause" of the constitution was now to be formally challenged by a "sovereign" state for the first time since the establishment of the national government. georgia was to assert her "sovereignty" by the repudiation of her laws and the denial of contractual rights acquired under them. and this she was to do with every apparent consideration of morality and public justice to support her. the tidings of the corruption attending the second "yazoo" sale were carried over the state on the wings of fury. a transaction which six years before had met with general acquiescence,[ ] now received deep-throated execration. the methods by which the sale was pushed through the legislature maddened the people, and their wrath was increased by the knowledge that the invention of the connecticut schoolmaster had tremendously enhanced the value of every acre of cotton-bearing soil. men who lived near augusta assembled and marched on the capital determined to lynch their legislative betrayers. only the pleadings of members who had voted against the bill saved the lives of their guilty associates.[ ] meetings were held in every hamlet. shaggy backwoodsmen met in "old-field" log schoolhouses and denounced "the steal." the burning in effigy of senator gunn became a favorite manifestation of popular wrath. the public indignation was strengthened by the exercise of it. those responsible for the enactment of the law found it perilous to be seen in any crowd. one member left the state. another escaped hanging only by precipitate flight.[ ] scores of resolutions were passed by town, rural, and backwoods assemblages demanding that the fraudulent statute be rescinded. petitions, circulated from the "mansion" of the wealthy planter to the squalid cabin of the poorest white man, were signed by high and low alike. the grand juries of every county in georgia, except two, formally presented as a grievance the passage of the land sale act of . among other things, the land sale act required the senators and representatives of georgia in congress to urge the national government to speed the making of a treaty with the indian tribes extinguishing their title to the lands which the state had sold. upon receiving a copy of the nefarious law, senator james jackson of georgia laid it before the senate, together with a resolution declaring that that body would "advise and consent" to the president's concluding any arrangement that would divest the indians of their claims.[ ] but although he had full knowledge of the methods by which the act was passed, the records do not show that jackson then gave the slightest expression to that indignation which he so soon thereafter poured forth. nor is there any evidence that he said a word on the subject when, on march , , georgia's title again came before the senate.[ ] some time afterward, however, senator jackson hurried home and put himself at the head of the popular movement against the "yazoo frauds." in every corner of the state, from seaport to remotest settlement, his fiery eloquence roused the animosity of the people to still greater frenzy. in two papers then published in georgia, the _savannah gazette_ and the _augusta chronicle_, the senator, under the _nom de guerre_ of "sicillius," published a series of articles attacking with savage violence the sale law and all connected with the enactment of it.[ ] it came out that every member of the legislature who had voted for the measure, except one,[ ] had shares of stock in the purchasing companies.[ ] stories of the extent of the territory thus bartered away kept pace with tales of the venality by which the fraud was effected. bad as the plain facts were, they became simply monstrous when magnified by the imagination of the public. nearly every man elected[ ] to the new legislature was pledged to vote for the undoing of the fraud in any manner that might seem the most effective. senator jackson had resigned from the national senate in order to become a member of the georgia house of representatives; and to this office he was overwhelmingly elected. when the legislature convened in the winter of - , it forthwith went about the task of destroying the corrupt work of its predecessor. jackson was the undisputed leader;[ ] his associates passed, almost unanimously, and governor irwin promptly approved, the measure which jackson wrote.[ ] thus was produced that enactment by a "sovereign" state, the validity of which john marshall was solemnly to deny from the supreme bench of the nation. jackson's bill was a sprightly and engaging document. the preamble was nearly three times as long as the act itself, and abounded in interminable sentences. it denounced the land sale act as a violation of both state and national constitutions, as the creation of a monopoly, as the dismemberment of georgia, as the betrayal of the rights of man. in this fashion the "whereases" ran on for some thousands of words. on second thought the legislature concluded that the law was worse than unconstitutional--it was, the "whereases" declared, a "usurped act." that part of the preamble dealing with the mingled questions of fraud and state sovereignty deserves quotation in full: "and whereas," ran this exposition of constitutional law and of the nature of contracts, "divested of all fundamental and constitutional authority which the said usurped act might be declared by its advocates, and those who claim under it, to be founded on, fraud has been practised to obtain it and the grants under it; and it is a fundamental principle, both of law and equity, that there cannot be a wrong without a remedy, and the state and the citizens thereof have suffered a most grievous injury in the barter of their rights by the said usurped act and grants, and there is no court existing, if the dignity of the state would permit her entering one, for the trial of fraud and collusion of individuals, or to contest her sovereignty with them, whereby the remedy for so notorious an injury could be obtained; and it can no where better lie than with the representatives of the people chosen by them, after due promulgation by the grand juries of most of the counties of the state, of the means practised, and by the remonstrances of the people of the convention, held on the th day of may, in the year , setting forth the atrocious peculation, corruption, and collusion, by which the usurped act and grants were obtained."[ ] at last the now highly enlightened legislature enacted "that the said usurped act ... be declared null and void," and that all claims directly or indirectly arising therefrom be "annulled." the lands sold under the act of were pronounced to be "the sole property of the state, subject only to the right of treaty of the united states, to enable the state to purchase, under its pre-emption right, the indian title to the same."[ ] such was the law which john marshall was to declare invalid in one of the most far-reaching opinions ever delivered from the supreme bench. the legislature further enacted that the "usurped act" and all "records, documents, and deeds" connected with the yazoo fraud, "shall be expunged from the face and indexes of the books of record of the state, and the enrolled law or usurped act shall then be publicly burnt, in order that no trace of so unconstitutional, vile, and fraudulent a transaction, other than the infamy attached to it by this law, shall remain in the public offices thereof." county officials were, under the severest of penalties for disobedience, directed to "obliterate" all records of deeds or other instruments connected with the anathematized grants, and courts were forbidden to receive any evidence of title of any kind whatever to lands from the grantees under the "usurped act."[ ] the governor was directed to issue warrants for repayment to those who, in good faith, had deposited their purchase money, with this reservation, however: "provided the same shall be now therein."[ ] after six months all moneys not applied for were to become the property of georgia. to prevent frauds upon individuals who might otherwise purchase lands from the pirate companies, the governor was directed to promulgate this brief and simple act "throughout the united states." a committee, appointed to devise a method for destroying the records, immediately reported that this should be done by cutting out of the books the leaves containing them. as to the enrolled bill containing the "usurped act," an elaborate performance was directed to be held: "a fire shall be made in front of the state house door, and a line formed by the members of both branches around the same. the secretary of state[ ] ... shall then produce the enrolled bill and usurped act from among the archives of the state and deliver the same to the president of the senate, who shall examine the same, and shall then deliver the same to the speaker of the house of representatives for like examination; and the speaker shall then deliver them to the clerk of the house of representatives, who shall read aloud the title to the same, and shall then deliver them to messenger of the house, who shall then pronounce--'god save the state!! and long preserve her rights!! and may every attempt to injure them perish as these corrupt acts now do!!!!'"[ ] every detail of this play was carried out with all theatrical effect. indeed, so highly wrought were the imaginations of actors and onlookers that, at the last moment, a final dash of color was added. some one gifted with dramatic genius suggested that the funeral pyre of such unholy legislation should not be lighted by earthly hands, but by fire from heaven. a sun-glass was produced; senator jackson held it above the fagots and the pile was kindled from "the burning rays of the lidless eye of justice."[ ] while the state was still in convulsions of anger, a talented young virginian of impressionable temperament went to georgia upon a visit to a college friend, joseph bryan, and was so profoundly moved by accounts of the attempt to plunder the state, that a hatred of the corrupt plot and of all connected with it became an obsession that lasted as long as he lived.[ ] thus was planted in the soul of john randolph that determination which later, when a member of congress, caused him to attack the administration of thomas jefferson.[ ] swift as was the action of the people and legislature of georgia in attempting to recover the yazoo lands, it was not so speedy as that of the speculators in disposing of them to purchasers in other states. most of these investors bought in entire good faith and were "innocent purchasers." some, however, must have been thoroughly familiar with the fraud.[ ] the most numerous sales were made in the middle states and in new england. the land companies issued a prospectus,[ ] setting out their title, which appeared to be, and indeed really was, legally perfect. thousands of copies of this pamphlet were scattered among provident and moneyed people. agents of the companies truthfully described the yazoo country to be rich, the climate mild and healthful, and the land certain of large and rapid rise in value. three of the companies[ ] opened an office in boston, where the spirit of speculation was rampant. then ensued an epidemic of investment. throngs of purchasers gathered at the promoters' offices. each day prices rose and the excitement increased. buying and selling of land became the one absorbing business of those who had either money or credit. some of the most prominent and responsible men in new england acquired large tracts.[ ] the companies received payment partly in cash, but chiefly in notes which were speedily sold in the market for commercial paper. sales were made in other northern cities, and many foreigners became purchasers. the average price received was fourteen cents an acre.[ ] some new englanders were suspicious. "the georgia land speculation calls for vigor in congress. near fifty millions acres sold ... for a song," wrote fisher ames.[ ] but such cautious men as ames were few in number and most of them were silent. by the time reports reached boston that the legislature of georgia was about to repeal the act under which the companies had bought the lands, numerous sales, great and small, had been made. in that city alone more than two millions of dollars had been invested, and this had been paid or pledged by "every class of men, even watch-makers, hair-dressers, and mechanics." the georgia company conveyed eleven million acres on the very day that the legislature of georgia passed the bill declaring the "usurped act" to be null and void and asserting the title of the whole territory still to be in the state.[ ] three weeks later, the news of the enactment of the rescinding law was published in the new england metropolis. anger and apprehension seized the investors. if this legislation were valid, all would lose heavily; some would be financially ruined. so a large number of the purchasers organized the new england mississippi company for the purpose of defending their interests. a written opinion upon the validity of their titles was procured from alexander hamilton, who was then practicing law in new york and directing the federalist party throughout the nation. he was still regarded by most federalists, and by nearly all moneyed men, as the soundest lawyer, as well as the ablest statesman, in america. hamilton's opinion was brief, simple, convincing, and ideally constructed for perusal by investors. it stated the facts of the enactment of the sale law, the fulfillment of the conditions of it by the purchasers, and the passage of the rescinding act. hamilton declared this latter act to be invalid because it plainly violated the contract clause of the constitution. "every grant ... whether [from] ... a state or an individual, is virtually a contract." the rescinding act was therefore null, and "the courts of the united states ... will be likely to pronounce it so."[ ] soon after its passage, president washington had received a copy of the georgia land sale act. he transmitted it to congress with a short message,[ ] stating that the interests of the united states were involved. his principal concern, however, and that of congress also, was about the indians. it was feared that depredations by whites would cause another outbreak of the natives. a resolution was adopted authorizing the president to obtain from georgia the cession of her "claim to the whole or any part of the land within the ... indian boundaries," and recommending that he prevent the making of treaties by individuals or states "for the extinguishment of the indian title." but not a word was said in washington's message, or in the debate in congress, about the invalidity of the georgia sale law or the corrupt methods employed to secure the enactment of it.[ ] two bills to protect the indians failed of passage.[ ] just before adjournment the house adopted a senate resolution which had been offered by senator rufus king of new york, requesting that the attorney-general report to the senate all data bearing on georgia's title to the territory sold to the land companies; but again the invalidity of the sale law was not even suggested, and the corruption of the georgia legislature was not so much as referred to.[ ] a year later, charles lee, washington's attorney-general, transmitted to congress an exhaustive report containing all facts.[ ] this report was referred to a special committee, headed by senator aaron burr of new york, who, on may , , reported a resolution authorizing the president to treat with georgia for the cession of the territory.[ ] once more no attention was paid to the fraud in the sale act, or to the rescinding act of the georgia legislature. but when the public finally learned of the "yazoo fraud" and of the repudiation by the georgia legislature of the corrupt law, the whole country was deeply stirred. a war of pamphlets broke out and was waged by both sides with vigor and ability. abraham bishop of new haven, connecticut, wrote a comprehensive answer to the prospectus of the land companies, and copies of this pamphlet, which appeared in four parts, were widely circulated.[ ] georgia had no fee in the lands, said bishop.[ ] sales to "innocent purchasers" could not give them what georgia had no right to sell. neither could such a device validate fraud. much litigation had already grown out of the swindle, and the georgia rescinding act had "brought ... matters to a crisis, and one decision of the supreme court of the united states may probably influence the decisions of lower courts."[ ] bishop discussed brilliantly, and at length, every possible question involved. the power of the state to pass and repeal laws was "wholly uncontrolable,"[ ] he asserted. the history of other dishonest and imprudent speculations was examined--the south sea bubble, the mississippi bubble,[ ] and the interposition of the legislative power of great britain in the one case and of france in the other. should like power be denied in america? georgia's rescinding act "nipt in the bud a number of aspiring swindlers."[ ] courts could not overthrow such legislation. the "sacredness of contracts" was the favorite cloak of fraud. bishop urged buyers to resist the recovery of money pledged in their purchase notes and, by so doing, to restore "millions of dollars ... to the channels of industry."[ ] hard upon the publication of the first number of bishop's pamphlet followed one for the land companies and investors. this had been written by robert goodloe harper of maryland a few months after hamilton had rendered his opinion that the georgia grant was inviolable.[ ] it was an able and learned performance. the title of georgia to the lands was carefully examined and held to be indefeasible. the sale of was set forth and the fact disclosed that georgia had appropriated one hundred thousand dollars of the purchase money immediately upon the receipt of it.[ ] it was pointed out that the rescinding act ignored this fact.[ ] harper argued that only the courts could determine the validity and meaning of a law, and that no legislature could annul a grant made by a previous one. to the judiciary alone belonged that power.[ ] the sale law was a contract, fully executed; one party to it could not break that compact.[ ] if georgia thought the sale act unconstitutional, she should have brought suit in the united states court to determine that purely judicial question. the same was true as to the allegations of fraud and corruption in the passage of the measure. if any power could do so, the courts and they alone could decide the effect of fraud in procuring the enactment of a law. but even the courts were barred from investigating that question: if laws could be invalidated because of the motives of members of lawmaking bodies, "what a door would be opened to fraud and uncertainty of every kind!"[ ] finally, after a long altercation that lasted for nearly three years, congress enacted a law authorizing the appointment of commissioners to settle the disputes between the national government and georgia, and also to secure from that truculent sovereignty the cession to the nation of the lands claimed by the state.[ ] in the somewhat extended debate over the bill but little was said about the invalidity of the yazoo sale, and the corruption of the legislature that directed it to be made was not mentioned.[ ] under this act of congress, georgia ceded her rights over the disputed territory for one million, two hundred and fifty thousand dollars; provided, however, that the nation should extinguish the indian titles, settle british and spanish claims, ultimately admit the vast domain as a state of the union, and reserve five million acres for the purpose of quieting all other demands. a later law[ ] directed the national commissioners, who had negotiated this arrangement with georgia, to investigate and report upon the claims of individuals and companies to lands within the territory thus ceded to the united states. at once the purchasers from the land companies, especially the new england investors, besieged congress to devote part of this five million acres to the salvage of their imperiled money. the report of the commissioners[ ] was wise, just, and statesmanlike. it was laid before the house on february , . although the titles of the claimants could "not be supported," still, because most of the titles had been acquired in good faith, and because it would be injurious to everybody, including the nation, to leave the matter unsettled, the report recommended the accommodation of the dispute on terms that would save innocent purchasers at least a part of the money they had paid or legally engaged to pay.[ ] when a bill to carry out the recommendations of the commission for the payment of the yazoo claimants came before the house, john randolph offered a resolution that went directly to the heart of the controversy and of all subsequent ones of like nature. it declared that "when the governors of any people shall have betrayed" their public trust for their own corrupt advantage, it is the "inalienable right" of that people "to abrogate the act thus endeavoring to betray them." accordingly the legislature of georgia had passed the rescinding act. this was entirely legal and constitutional because "a subsequent legislature of an individual state has an undoubted right to repeal any act of a preceding legislature, provided such repeal be not forbidden by the constitution of such state, or of the united states." neither the fundamental law of georgia nor of the nation forbade the repeal of the corrupt law of . claims under this nullified and "usurped" law were not recognized by the compact of cession between georgia and the united states, "nor by any act of the federal government." therefore, declared randolph's resolution, "no part of the five millions of acres reserved for satisfying and quieting claims ... shall be appropriated to quiet or compensate any claims" derived under the corrupt legislation of the georgia legislature of .[ ] after a hot fight, consideration of the resolutions was postponed until the next session; but the bill authorizing the commissioners to compromise with the yazoo claimants also went over.[ ] the matter next came up for consideration in the house, just before the trial in the senate of the impeachment of justice samuel chase. a strong and influential lobby was pressing the compromise. the legislative agents of the new england mississippi company[ ] presented its case with uncommon ability. in a memorial to congress[ ] they set forth their repeated applications to president, congress, and the commissioners for protection. they were, they said, "constantly assured" that the rights of the claimants would be respected; and that it was expressly for this purpose that the five million acres had been reserved. for years they had attended sittings of the commissioners and sessions of congress "at great cost and heavy expense." would not congress at last afford them relief? if a "judicial decision" was desired, let congress enact a law directing the supreme court to decide as to the validity of their title and they would gladly submit the matter to that tribunal. it was only because congress seemed to prefer settlement by compromise that they again presented the facts and reasons for establishing their rights. so once more every aspect of the controversy was discussed with notable ability and extensive learning in granger and morton's brochure.[ ] the passions of john randolph, which had never grown cold since as a youth, a decade previously, he had witnessed the dramatic popular campaign in georgia--and which during had been gathering intense heat--now burst into a furious flame. unfortunately for jefferson, the most influential agent of the new england claimants was the one administration official who had most favors to bestow--gideon granger of connecticut, the postmaster-general.[ ] he was the leader of the lobby which the new england mississippi company had mustered in such force. and granger now employed all the power of his department, so rich in contracts and offices, to secure the passage of a bill that would make effectual the recommendations of jefferson's commissioners. as the vote upon it drew near, granger actually appeared upon the floor of the house soliciting votes for the measure. randolph's emotions were thus excited to the point of frenzy--the man was literally beside himself with anger. he needed to husband all his strength for the conduct of the trial of chase[ ] and to solidify his party, rather than to waste his physical resources, or to alienate a single republican. on the report of the committee of claims recommending the payment of the yazoo claimants, one of the most virulent and picturesque debates in the history of the american congress began.[ ] randolph took the floor, and a "fire and brimstone speech"[ ] he made. "past experience has shown that this is one of those subjects which pollution has sanctified," he began. "the press is gagged." the new england claimants innocent purchasers! "sir, when that act of stupendous villainy was passed in ... it caused a sensation scarcely less violent than that produced by the passage of the stamp act." those who assert their ignorance of "this infamous act" are gross and willful liars.[ ] to a "monstrous anomaly" like the present case, cried randolph, "narrow maxims of municipal jurisprudence ought not, and cannot be applied.... attorneys and judges do not decide the fate of empires."[ ] randolph mercilessly attacked granger, and through him the administration itself. granger's was a practiced hand at such business, he said. he was one of "the applicants by whom we were beset" in the connecticut reserve scheme, "by which the nation were swindled out of some three or four millions of acres of land, which, like other bad titles, had fallen into the hands of innocent purchasers." granger "seems to have an unfortunate knack of buying bad titles. his gigantic grasp embraces with one hand the shores of lake erie,[ ] and stretches with the other to the bay of mobile.[ ] millions of acres are easily digested by such stomachs.... they buy and sell corruption in the gross." they gamble for "nothing less than the patrimony of the people." pointing his long, bony finger at granger, randolph exclaimed: "mr. speaker, ... this same agent is at the head of an executive department of our government.... this officer, possessed of how many snug appointments and fat contracts, let the voluminous records on your table, of the mere names and dates and sums declare, ... this officer presents himself at your bar, at once a party and an advocate."[ ] the debate continued without interruption for four full days. every phase of the subject was discussed exhaustively. the question of the power of the legislature to annul a contract; of the power of the judiciary to declare a legislative act void because of corruption in the enactment of it; the competency of congress to pass upon such disputed points--these questions, as well as that of the innocence of the purchasers, were elaborately argued. the strongest speech in support of the good faith of the new england investors was made by that venerable and militant republican and jeffersonian, john findley of pennsylvania.[ ] he pointed out that the purchase by members of the georgia legislature of the lands sold was nothing unusual--everybody knew "that had been the case in pennsylvania and other states." georgia papers did not circulate in new england; how could the people of that section know of the charges of corruption and the denial of the validity of the law under which the lands were sold? those innocent purchasers had a right to trust the validity of the title of the land companies--the agents had exhibited the deeds executed by the governor of georgia, the law directing the sale to be made, and the constitution of the state. what more could be asked? "the respectability of the characters of the sellers" was a guarantee "that they could not themselves be deceived and would not deceive others." among these, said findley, was an eminent justice of the supreme court,[ ] a united states senator,[ ] and many other men of hitherto irreproachable standing. could people living in an old and thickly settled state, far from the scene of the alleged swindle, with no knowledge whatever that fraud had been charged, and in need of the land offered--could they possibly so much as suspect corruption when such men were members of the selling companies? moreover, said findley--and with entire accuracy--not a georgia official charged with venality had been impeached or indicted. the truth was that if the georgia legislature had not passed the rescinding act the attention of congress would never have been called to the alleged swindle. then, too, everybody knew "that one session of a legislature cannot annul the contracts made by the preceding session"; for did not the national constitution forbid any state from passing a law impairing the obligation of contracts?[ ] randolph outdid himself in daring and ferocity when he again took the floor. his speech struck hostile spectators as "more outrageous than the first."[ ] he flatly charged that a mail contract had been offered to a member of the house, who had accepted it, but that it had been withdrawn from him when he refused to agree to support the compromise of the yazoo claims. randolph declared that the plot to swindle georgia out of her lands "was hatched in philadelphia and new york (and i believe boston....) and the funds with which it was effected were principally furnished by moneyed capitalists in those towns."[ ] at last the resolution was adopted by a majority of to ,[ ] and randolph, physically exhausted and in despair at his overthrow as dictator of the house, went to his ineffective management of the chase impeachment trial.[ ] he prevented for the time being, however, the passage of the bill to carry out the compromise with the yazoo claimants. he had mightily impressed the people, especially those of virginia. the richmond _enquirer_, on october , , denounced the yazoo fraud and the compromise of the investors' claims as a "stupendous scheme of plunder." senator giles, in a private conversation with john quincy adams, asserted that "not a man from that state, who should give any countenance to the proposed compromise, could obtain an election after it." he avowed that "nothing since the government existed had so deeply affected him."[ ] the debate was published fully in the newspapers of washington, and it is impossible that marshall did not read it and with earnest concern. as has already been stated, the first case involving the sale of these georgia lands had been dropped because of the eleventh amendment to the constitution, abolishing the right to sue a state in the national courts. moreover, marshall was profoundly interested in the stability of contractual obligations. the repudiation of these by the legislature of virginia had powerfully and permanently influenced his views upon this subject.[ ] also, marshall's own title to part of the fairfax estate had more than once been in jeopardy.[ ] at that very moment a suit affecting the title of his brother to certain fairfax lands was pending in virginia courts, and the action of the virginia court of appeals in one of these was soon to cause the first great conflict between the highest court of a state and the supreme tribunal of the nation.[ ] no man in america, therefore, could have followed with deeper anxiety the yazoo controversy than did john marshall. again and again, session after session, the claimants presented to congress their prayers for relief. in , senator john quincy adams of massachusetts and senator thomas sumter of south carolina urged the passage of a bill to settle the claims. this led senator james jackson of georgia to deliver "a violent invective against the claims, without any specific object."[ ] after jackson's death the measure passed the senate by a vote of to , but was rejected in the house by a majority of out of a total of .[ ] among the lawyers who went to washington for the new england mississippi company was a young man not yet thirty years of age, joseph story of massachusetts, who on his first visit spent much time with madison, gallatin, and the president.[ ] on a second visit, story asked to address the house on the subject, but that body refused to hear him.[ ] from the first the new england investors had wished for a decision by the courts upon the validity of their titles and upon the effect of the rescinding act of the georgia legislature; but no way had occurred to them by which they could secure such a determination from the bench. the eleventh amendment prevented them from suing georgia; and the courts of that state were, as we have seen, forbidden by the rescinding act from entertaining such actions. to secure a judicial expression, the boston claimants arranged a "friendly" suit in the united states court for the district of massachusetts. one john peck of boston had been a heavy dealer in georgia lands.[ ] on may , , he had either sold or pretended to sell to one robert fletcher of amherst, new hampshire, fifteen thousand acres of his holdings for the sum of three thousand dollars. immediately fletcher brought suit against peck for the recovery of this purchase money; but the case was "continued by consent" for term after term from june, , until october, .[ ] the pleadings[ ] set forth every possible phase of the entire subject which could be considered judicially. issues were joined on all points except that of the title of georgia to the lands sold.[ ] on this question a jury, at the october term, , returned as a special verdict a learned and bulky document. it recited the historical foundations of the title to the territory in dispute; left the determination of the question to the court; and, in case the judge should decide that georgia's claim to the lands sold was not valid, found for the plaintiff and assessed his damages at the amount alleged to have been paid to peck. thereafter the case was again "continued by consent" until october, , when associate justice william cushing of the supreme court, sitting as circuit judge, decided in peck's favor every question raised by the pleadings and by the jury's special verdict. fletcher sued out a writ of error to the supreme court of the united states, and so this controversy came before john marshall. the case was argued twice, the first time, march - , , by luther martin for fletcher and by robert goodloe harper and john quincy adams for peck. there was no decision on the merits because of a defect of pleadings which marshall permitted counsel to remedy.[ ] during this argument the court adjourned for two hours to attend the inauguration of james madison. for the third time marshall administered the presidential oath. at the ball that night, judge livingston told adams that the court had been reluctant "to decide the case at all, as it appeared manifestly made up for the purpose of getting the court's judgment upon all the points." the chief justice himself had mentioned the same thing to cranch. adams here chronicles an incident of some importance. after delivering the court's opinion on the pleadings, marshall "added verbally, that, circumstanced as the court are, only five judges attending,[ ] there were difficulties which would have prevented them from giving any opinion at this term had the pleadings been correct; and the court the more readily forbore giving it, as from the complexion of the pleadings they could not but see that at the time when the covenants were made the parties had notice of the acts covenanted against."[ ] the cause was argued again a year later. this time joseph story, so soon thereafter appointed an associate justice, took the place of john quincy adams. martin's address was technical and, from the record, appears to have been perfunctory.[ ] on behalf of peck, two thirds of the argument for the soundness of his title was devoted to the demonstration of the validity of that of georgia. if that were sound, said story, the legislature had a right to sell the land, and a subsequent legislature could not cancel the contract when executed. the judiciary alone could declare what a law is or had been. moreover, the national constitution expressly forbade a state to pass an act impairing the obligation of contracts. to overthrow a law because it was corruptly enacted "would open a source of litigation which could never be closed." however, "the parties now before the court are innocent of the fraud, if any has been practiced. they were bona fide purchasers, for a valuable consideration, without notice of fraud. they cannot be affected by it."[ ] on march , , marshall delivered the opinion of the majority of the supreme court. in this he laid the second stone in the structure of american constitutional law which bears his name. he held that the georgia rescinding act was a violation of the contract clause of the constitution and in doing so asserted that courts cannot examine the motives that induce legislators to pass a law. in arriving at these profoundly important conclusions his reasoning was as follows: did the georgia sale act of violate the constitution of that state? an act of a legislature was not to be set aside "lightly" on "vague conjecture" or "slight implication." there was no ground for asserting that the georgia legislature transcended its constitutional powers in passing the sale act.[ ] had the corruption of the legislature destroyed the title of peck, an innocent purchaser? it was, cautiously said marshall, doubtful "how far the validity of a law depends upon the motives of its framers," particularly when the act challenged authorized a contract that was executed according to the terms of it. even if such legislation could be set aside on the ground of fraud in the enactment of it, to what extent must the impurity go? "must it be direct corruption, or would interest or undue influence of any kind be sufficient? must the vitiating cause operate on a majority, or on what number of the members? would the act be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment?" the state of georgia did not bring this action; nor, "by this count" of the complaint, did it appear that the state was dissatisfied. on the face of the pleadings a purchaser of georgia land declares that the seller had no title because "some of the members of the legislature were induced to vote in favor of the law, which constituted the contract [with the original grantees], by being promised an interest in it, and that therefore the act is a mere nullity." a tribunal "sitting as a court of law" cannot decide, in a suit between private parties, that the law of a state "is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the law."[ ] conceding, for the sake of argument, that "the original transaction was infected with fraud," the purchasers from the land companies were innocent according to the records before the court. yet, if the rescinding act were valid, it "annihilated their rights.... the legislature of georgia was a party to this transaction; and for a party to pronounce its own deed invalid" was an assertion "not often heard in courts of justice." it was true, as urged, that "the real party ... are the people"; but they can act only through agents whose "acts must be considered as the acts of the people." should these agents prove unfaithful, the people can choose others to undo the nefarious work, "if their contracts be examinable" by legislation.[ ] admit that the state "might claim to itself the power of judging in its own case, yet there are certain great principles of justice ... that ought not to be entirely disregarded." thus, at first, marshall rested his opinion on elementary "principles of justice," rather than on the constitution. these "principles" required that an innocent purchaser should not suffer. "if there be any concealed defect, arising from the conduct of those who had held the property long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. he has paid his money for a title good at law; he is innocent, whatever may be the guilt of others, and equity will not subject him to the penalties attached to that guilt. all titles would be insecure, and the intercourse between man and man would be very seriously obstructed, if this principle be overturned." the john marshall who sat in the virginia legislature[ ] is speaking now. even if the legislature could throw aside all "rules of property," still the rescinding act is "supported by its power alone, and the same power may divest any other individual of his lands, if it shall be the will of the legislature so to exert it." to make this perfectly clear, marshall defined the theory relied upon by the opponents of the yazoo fraud--"the principle is this: that a legislature may, by its own act, divest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient."[ ] supposing that the georgia sale act had been procured by fraud; nevertheless, "the grant, when issued, conveyed an estate in fee-simple to the grantee, clothed with all the solemnities which law can bestow. this estate was transferable; and those who purchased parts of it were not stained by that guilt which infected the original transaction." they could not, therefore, be made to suffer for the wrong of another. any legislature can, of course, repeal the acts of a preceding one, and no legislature can limit the powers of its successor. "but, if an act be done under a law, a succeeding legislature cannot undo it. the past cannot be recalled by the most absolute power." the purchase of estates from the land companies was, by virtue of law, "a fact, and cannot cease to be a fact," even if the state should deny that it was a fact. "when, then, a law is in its nature a contract, where absolute rights have vested under that contract, a repeal of the law cannot divest those rights." if it can, such a power is "applicable to the case of every individual in the community." regardless of written constitutions, the "nature of society and of government" prescribes "limits to the legislative power." but "where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?" again marshall founds his reasoning, not on the constitution, but on fundamental principles. at last, however, he arrives at the constitution. georgia was not a single sovereign power, but "a part of a large empire, ... a member of the american union; and that union has a constitution ... which imposes limits to the legislatures of the several states, which none claim a right to pass." had the legislature of georgia overstepped those limits? "is a grant a contract?" the answer to that depended upon the definition of a contract. on this decisive point marshall cited blackstone: "a contract executed ... differs in nothing from a grant." this was the exact case presented by the georgia sale act and the fulfillment, by the purchasers, of the conditions of it. "a party is, therefore, always estopped by his own grant," one obligation of which is that he shall never attempt "to re-assert that right" thus disposed of. by this reasoning marshall finally came to the conclusion that the constitution plainly covered the case. that instrument did not distinguish between grants by individuals and those by states. if a state could not pass a law impairing the obligation of contracts between private persons, neither could it invalidate a contract made by itself. indeed, as everybody knew, said marshall, "the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the united states, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed." therefore, it was provided in america's fundamental law that "no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."[ ] such limitations, declared marshall, constitute a bill of rights for the people of each state. would any one pretend to say that a state might enact an _ex post facto_ law or pass a bill of attainder? certainly not! how then could anybody pretend that a state could by legislation annul a contract? thus far the opinion of the court was unanimous.[ ] as to the indian title, justice johnson dissented. on the want of power of the georgia legislature to annul the sale act of , the republican associate justice was, however, even more emphatic than the soft-spoken federalist chief justice. but he ended by a rebuke which, if justified, and if the case had not been so important and the situation so critical, probably would have required the peremptory dismissal of the appeal and the disbarment of counsel appearing in the cause. justice johnson intimated--all but formally charged--that the case was collusive. "i have been very unwilling," he said, "to proceed to the decision of this cause at all. it appears to me to be[ar] strong evidence, upon the face of it, of being a mere feigned case. it is our duty to decide upon the rights but not upon the speculations of parties. my confidence, however, in the respectable gentlemen who have been engaged for the parties, had induced me to abandon my scruples, in the belief that they would never consent to impose a mere feigned case upon this court."[ ] one cannot patiently read these words. far better had justice william johnson denounced fletcher _vs._ peck for what everybody believed it to be, and what it really was, or else had refrained from raising the question, than in these unctuous sentences to have shifted the responsibility upon the shoulders of the attorneys who appeared before the supreme bench. the conclusion seems inescapable that had not jefferson, who placed johnson on the supreme bench, and jefferson's secretary of state and political legatee, james madison, ardently desired the disposition which marshall made of the case, justice johnson would have placed on record a stronger statement of the nature of this litigation. the fact that marshall rendered an opinion, under the circumstances, is one of the firmest proofs of his greatness. as in marbury _vs._ madison, the supremacy of the national judiciary had to be asserted or its inferiority conceded, so in fletcher _vs._ peck, it was necessary that the nation's highest court should plainly lay down the law of public contract, notify every state of its place in the american system, and announce the limitations which the national constitution places upon each state. failure to do this would have been to sanction georgia's rescinding act, to encourage other states to take similar action, and to render insecure and litigious numberless titles acquired innocently and in good faith, and multitudes of contracts entered into in the belief that they were binding. a weaker man than john marshall, and one less wise and courageous, would have dismissed the appeal or decided the case on technical points. marshall's opinion did more than affect the controversy in congress over the yazoo lands. it announced fundamental principles for the guidance of the states and the stabilizing of american business.[ ] it increased the confidence in him of the conservative elements and of all nationalists. but, for the same reason, it deepened the public distrust of him and the popular hostility toward him. although marshall's opinion gave steadiness to commercial intercourse at a time when it was sadly needed, checked for the moment a flood of contract-breaking laws, and asserted the supremacy of nationalism over localism, it also strengthened many previous speculations that were at least doubtful and some that were corrupt.[ ] moreover, it furnished the basis for questionable public grants in the future. yet the good effects of it fairly outweighed the bad. also it taught the people to be careful in the choice of their representatives in all legislative bodies; if citizens will not select honest and able men as their public agents, they must suffer the consequences of their indifference to their own affairs. whatever may be thought of other aspects of this case, it must be conceded that marshall could not have disobeyed the plain command of the constitution which forbids any state to impair the obligation of contracts. that the georgia legislature was guilty of such violation even jefferson's appointee, justice johnson, declared more emphatically than did marshall himself. if johnson had asserted that a legislative grant, accepted by the grantee, was not a contract, marshall's opinion would have been fatally wounded. it had now been marshall's fate to deliver opinions in three cases[ ] which helped to assure his future fame, but which, at the moment, were highly unwelcome to the people. throughout the country, at the end of the first decade of the nineteenth century, a more unpopular person could not have been found than that wise, brave, gentle man, the chief justice of the united states. marshall's opinion and the decision of the court had no practical effect whatever, so far as the legal result of it was concerned, but it had some influence in the settlement of the controversy by congress. the eleventh congress was in session when fletcher _vs._ peck was decided, and the new england yazoo claimants immediately presented another petition for relief. soon after marshall's opinion was published, randolph moved that the new england memorial be referred to the committee of claims with instructions to report to the house. the matter, he said, must not go by default. he wanted nothing "done, directly or indirectly, by any act of commission or omission, that should give any the slightest degree of countenance to that claim." randolph thus brought marshall's opinion before the house: "a judicial decision, of no small importance, had, during the present session of congress, taken place in relation to that subject." to let the business rest, particularly at this time, "would wear the appearance abroad of acquiescence [by the house] in that judicial decision." the yazoo claimants must not be allowed to profit in this way by the action of the supreme court as they would surely do if not prevented, since "never has a claim been pressed upon the public with such pertinacity, with such art, with such audacity."[ ] george m. troup of georgia, slender, handsome, fair-haired,[ ] then thirty years old and possessing all the fiery aggressiveness of youth, sprang to his feet to add his reproof of marshall and the supreme court. he declared that the opinion of the chief justice, in fletcher _vs._ peck, was a pronouncement "which the mind of every man attached to republican principles must revolt at."[ ] because the session was closing and from pressure of business, randolph withdrew his motion to refer the memorial to the committee, and offered another: "that the prayer of the petition of the new england mississippi land company is unreasonable, unjust, and ought not to be granted." this, if passed, would amount to a condemnation by the house of the decision of the supreme court of the united states. all federalists and conservative republicans combined to defeat it, and the resolution was lost by a vote of yeas to nays.[ ] but troup would not yield. on december he insisted that the national government should resist by force of arms the judgment of the supreme court. the title to the lands was in the united states, he said, yet the court had decided it to be in the yazoo claimants. "this decision must either be acquiesced in or resisted by the united states.... if the government ... would not submit to this decision, ... what course could be taken but to employ the whole military force ... to eject all persons not claiming under the authority of the united states?" should those "in whose behalf" marshall's opinion was rendered, take possession, either the national government must "remove them by ... military power, or tamely acquiesce in the lawless aggression."[ ] but marshall and the supreme court were to be attacked still more openly and violently. strengthened by the decision in fletcher _vs._ peck, the yazoo claimants pressed congress harder than ever for payment. on january , , a bill from the senate providing for the payment of the claims came up for consideration in the house. troup instantly took the floor, moved its rejection and delivered such an excoriation of the supreme court as never before was or has since been heard in congress. he began by reciting the details of the "hideous corruption." such legislation was void _ab initio_. the original speculators had made fortunes out of the deal, and now congress was asked to make the fortunes of the second-hand speculators. for years the house had, most righteously, repelled their audacious assaults; but now they had devised a new weapon of attack. they had secured the assistance of the judiciary. "two of the speculators combined and made up a fictitious case, a feigned issue for the decision of the supreme court," asserted troup. "they presented precisely those points for the decision of the court which they wished the court to decide, and the court did actually decide them as the speculators themselves would have decided them if they had been in the place of the supreme court. "the first point was, whether the legislature of georgia had the _power_ to sell the territory. "yes, said the judges, they had. "whether by the yazoo act an estate did vest in the original grantees? "yes, said the judges, it did. "whether it was competent to any subsequent legislature to set aside the act on the ground of fraud and corruption? "no, said the judges, it was not.... no matter, say the judges, what the nature or extent of the corruption, ... be it ever so nefarious, it could not be set aside.... "the [legal] maxim that third purchasers without notice shall not be affected by the fraud of the original parties" had, declared troup, been wielded by the judges for the benefit of the speculators and to the ruin of the country. "thus, sir, by a maxim of english law are the rights and liberties of the people of this country to be corruptly bartered by their representatives. "it is this decision of the judges which has been made the basis of the bill on your table--a decision shocking to every free government, sapping the foundations of all your constitutions, and annihilating at a breath the best hope of man. "yes, sir," exclaimed the deeply stirred and sincerely angered georgian, "it is proclaimed by the judges, and is now to be sanctioned by the legislature, that the representatives of the people may corruptly betray the people, may corruptly barter their rights and those of their posterity, and the people are wholly without any kind of remedy whatsoever. "it is this monstrous and abhorrent doctrine which must startle every man in the nation, that you ought promptly to discountenance and condemn." in such fashion the enraged troup ran on; and he expressed the sentiments of the vast majority of the inhabitants of the united states. the longer the georgia champion of popular justice and the rights of the states talked, the more unrestrained became his sentiments and his expression of them: "if, mr. speaker, the arch-fiend had in ... his hatred to mankind resolved the destruction of republican government on earth, he would have issued a decree like that of the judges"--the opinion of john marshall in fletcher _vs._ peck. "why ... do the judges who passed this decision live and live unpunished?... the foundations of the republic are shaken and the judges sleep in tranquillity at home.... the question ... had been so often discussed" that it was "well understood by every man in the nation." troup prophesied, therefore, that "no party in this country, however deeply seated in power, can long survive the adoption of this measure."[ ] but the federalist-jeffersonian yazoo coalition held firm and troup's motion to reject the senate yazoo bill was lost by a vote of to .[ ] the relief bill was delayed, however, and the claimants were compelled to nurse their eighteen-year-old disappointment until another session of congress convened. the following year the bill to settle the yazoo claims was again introduced in the senate and passed by that body without opposition. on february , , the measure reached the house.[ ] on the second reading of it, troup despairingly moved that the bill be rejected. the intrepid and resourceful john randolph had been beaten in the preceding congressional election, the house no longer echoed with his fearless voice, and his dominant personality no longer inspired his followers or terrified his enemies. troup could not bend the mighty bow that randolph had left behind and that he alone could draw. but the dauntless georgian did his best. once more he went over the items of this "circle of fraud," as he branded it. success of the "plunderers" now depended on the affirmation by congress of marshall's opinion, which, said troup, "overturns republican government. you cannot, you dare not, sanctify this doctrine." if you do so, then "to talk of the rights of the people after this is insult and mockery."[ ] long did troup argue and denounce. he could not keep his eager fingers from the throat of john marshall and the supreme court. "the case of fletcher and peck was a decision of a feigned issue, made up between two speculators, to decide certain points, in the decision of which they were interested.... whenever it is conceded that it is competent to the supreme court, in a case between a and b, to take from the united states fifty [_sic_] millions of acres of land, it will be time for the government to make a voluntary surrender of the public property to whosoever will have it.... sir, i am tired and disgusted with this subject."[ ] robert wright of maryland urged the passage of the bill. "he ... dwelt ... on the sanctity of the title of the present claimants under the decision of the supreme court, against whose awards he hoped never to see the bayonet employed. he feared not to advocate this bill on account of the clamor against it. let justice be done though the heavens fall."[ ] weaker and ever weaker grew the assaults of the opponents against marshall's opinion and the bill to reimburse the yazoo claimants. in every case the speakers supported or resisted the bill solely according to the influence of their constituents. considerations of local politics, and not devotion to the constitution or abhorrence of fraud, moved the representatives. the house voted, to , against troup's motion to reject the bill.[ ] finally the measure was referred to a select committee, with instructions to report.[ ] almost immediately this committee reported in favor of the yazoo claimants.[ ] no time was lost and the friends of the bill now crowded the measure to a vote with all the aggressive confidence of an assured majority. by a vote of yeas to nays, five millions of dollars were appropriated for reimbursement to the purchasers of the yazoo lands.[ ] daniel webster, who was serving his first term in the house and supported the bill, thus describes the situation at the time of its passage: "the yazoo bill is through, passed by eight majority. it excited a great deal of feeling. all the federalists supported the bill, and some of the democrats. georgians, and some virginians and carolinians, opposed it with great heat.... our feeling was to get the democratic support of it."[ ] thus john marshall's great opinion was influential in securing from congress the settlement of the claims of numerous innocent investors who had, in good faith, purchased from a band of legislative corruptionists. of infinitely more importance, however, is the fact that marshall's words asserted the power of the supreme court of the united states to annul state laws passed in violation of the national constitution, and that throughout the republic a fundamental principle of the law of public contract was established. footnotes: [ ] see _infra_, . [ ] affidavit of clem lanier, _am. state papers, public lands_, i, . [ ] affidavit of peter l. van allen, _ib._ [ ] _ib._ it would appear that one hundred and fifty thousand acres were allotted to the thrifty scotch legislator. he sold them for $ . [ ] affidavit of john thomas, jr., _am. state papers, public lands_, i, . [ ] affidavit of philip clayton, _ib._ . [ ] affidavit of john shepperd, _ib._ [ ] about sixty affidavits were made to show the venality of members of the legislature. of these, twenty-one are printed in _ib._ - . [ ] harris: _georgia from the invasion of de soto to recent times_, - ; white: _statistics of the state of georgia_, ; chappell: _miscellanies of georgia_, - . these writers leave the unjust inference that wilson was one of those who were corrupting the legislature. this is almost certainly untrue. for a quarter of a century wilson had been a heavy speculator in indian lands, and it appears reasonable that he took this money to augusta for the purpose of investment. when the deal was consummated, the justice held shares to the amount of at least three quarters of a million of acres. (chappell, .) [ ] _ib._ . [ ] gunn's reëlection was the first step in the conspiracy. not until that was accomplished was a word said about the sale of the lands. immediately after the legislature had chosen gunn for a second term in the national senate, however, the bill was introduced and the campaign of intimidation and bribery launched, to force its passage. (_ib._ - .) [ ] see mathews's reasons, as quoted in the rescinding act of , _am. state papers, public lands_, i, . [ ] chappell, . [ ] the claims of spain to the territory had been a serious cloud on the title. in october, , the treaty with the spanish government, which removed this defect, was published. senator james gunn had knowledge that the treaty would be negotiated long before it was made known to the world or even concluded. this fact was one of the reasons for the mad haste with which the corrupt sale act was rushed through the georgia legislature. (see chappell, - .) [ ] gunn was a perfect example of the corrupt, yet able, bold, and demagogical politician. he was a master of the arts alike of cajolery and intimidation. for a vivid account of this man see chappell, - . [ ] haskins: _yazoo land companies_, . [ ] _am. state papers, public lands_, i, - . [ ] chappell, . [ ] "a small smoky cabin with a dirt floor was the home of most of them." (smith: _story of georgia and the georgia people_, .) for a good description of pioneer houses and manner of living, see ramsey: _annals of tennessee to the end of the eighteenth century_, - . [ ] smith, - . [ ] morse's _american gazetteer_, as quoted in bishop: _georgia speculation unveiled_, - . [ ] adams: _u.s._ i, . [ ] the south carolina yazoo company, , , acres for $ , ; the virginia yazoo company, , , acres for $ , ; the tennessee company, , , acres for $ , . (haskins, .) [ ] _works_: ford, vi, - . [ ] moultrie _vs._ georgia, , dismissed in , _am. state papers, public lands_, i, ; and see vol. ii, - , of this work. [ ] chappell, - . [ ] _ib._ - ; haskins, - . [ ] "no men stood higher in georgia than the men who composed these several companies and the members of the legislature who made the sale." (smith, .) [ ] see haskins, , and sources there cited. [ ] the effect of whitney's invention is shown in striking fashion by the increase of cotton exports. in only , pounds were exported from the entire united states. ten years later georgia alone exported , , pounds. (jones and dutcher: _memorial history of augusta, georgia_, .) [ ] priest: _travels in the united states_, ; and see haskins, . otis speaks of the "land jobbing prospectors," and says that "money is the object here [boston] with all ranks and degrees." (otis to harper, april , , morison: _otis_, i, .) the national character "is degenerated into a system of stock-jobbing, extortion and usury.... by the god of heaven, if we go on in this way, our nation will sink into disgrace and slavery." (tyler to madison, jan. , , tyler, i, .) [ ] see vol. i, , of this work. [ ] it was, however, among the last items proposed to the convention, which had been at work more than three months before the "contract clause" was suggested. even then the proposal was only as to _new_ states. the motion was made by rufus king of new york on august . gouverneur morris objected. "this would be going too far," he said. george mason of virginia said the same thing. madison thought "a negative on the state laws could alone secure the effect." james wilson of pennsylvania warmly supported king's motion. john rutledge of south carolina moved, as a substitute for king's proposition, that states should not pass "bills of attainder nor retrospective laws." (_records, fed. conv._: farrand, ii, .) this carried, and nothing more appears as to the contract clause until it was included by the committee on style in its report of september . (_ib._ - .) elbridge gerry of massachusetts strongly favored it and even wanted congress "to be laid under the like prohibitions." (_ib._ .) the convention refused to insert the word "previous" before "obligation." (_ib._ .) in this manner the provision that "no state shall pass any law impairing the obligation of contracts" was inserted in the constitution. the framers of that instrument apparently had in mind, however, the danger of the violation of contracts through depreciated paper money rather than the invalidation of agreements by the direct action of state legislatures. (see speech of william r. davie in the north carolina convention, july , , _ib._ iii, - ; speech of james mchenry before the maryland house of delegates, nov. , , _ib._ ; and speech of luther martin before same, same date, _ib._ ; also see madison to ingersoll, feb. , , _ib._ .) madison best stated the reason for the adoption of the contract clause: "a violations [_sic_] of contracts had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, of instalment laws, and of the occlusions of the courts of justice; although evident that all such interferences affected the rights of other states, relatively creditor, as well as citizens creditors within the state." (_ib._ .) roger sherman and oliver ellsworth explained briefly that the clause "was thought necessary as a security to commerce." (letter to the governor of connecticut, sept. , , _ib._ .) [ ] chappell, . [ ] harris, . [ ] harris, . [ ] feb. , , _annals_, d cong. st and d sess. - . [ ] _ib._ - . the silence of jackson at this time is all the more impressive because the report of the attorney-general would surely be used by the land companies to encourage investors to buy. both jackson and gunn were present when king offered his resolution. (_annals_, d cong. st and d sess. .) jackson declined to vote on the passage of a house bill "making provision for the purposes of treaty" with the indians occupying the yazoo lands. (_ib._ - .) [ ] smith, . [ ] robert watkins. [ ] see report of the commissioners, _am. state papers, public lands_, i, - . [ ] the "yazoo men" carried two counties. [ ] chappell, . [ ] the outgoing governor, george mathews, in his last message to the legislature, stoutly defended his approval of the sale act. he attributed the attacks upon him to "base and malicious reports," inspired by "the blackest and the most persevering malice aided by disappointed avarice." the storm against the law was, he said, due to "popular clamour." (message of governor mathews, jan. , , harper: _case of the georgia sales on the mississippi considered_, - .) [ ] _am. state papers, public lands_, i, . [ ] _ib._ . [ ] _am. state papers, public lands_, i, . [ ] the punctilious legislature failed to explain that one hundred thousand dollars of the purchase money had already been appropriated and expended by the state. this sum they did not propose to restore. [ ] "or his deputy." [ ] report of the joint committee, as quoted in stevens: _history of georgia from its first discovery by europeans to the adoption of the present constitution in _, ii, - . [ ] stevens, - . stevens says that there is no positive proof of this incident; but all other writers declare that it occurred. see knight: _georgia's landmarks, memorials and legends_, i, - ; also harris, . [ ] adams: _randolph_, ; also garland: _life of john randolph of roanoke_, i, - . [ ] see _infra_, - ; and _supra_, chap. iv. [ ] for instance, wade hampton immediately sold the entire holdings of the upper mississippi company, millions of acres, to three south carolina speculators, and it is quite impossible that they did not know of the corruption of the georgia legislature. hampton acquired from his partners, john b. scott and john c. nightingale, all of their interests in the company's purchase. this was done on january and , immediately after governor mathews had signed the deed from the state. seven weeks later, march , , hampton conveyed all of this land to adam tunno, james miller, and james warrington. (_am. state papers, public lands_, i, .) hampton was a member of congress from south carolina. [ ] _state of facts, shewing the right of certain companies to the lands lately purchased by them from the state of georgia._ [ ] the georgia mississippi company, the tennessee company, and the georgia company. (see haskins, .) [ ] eleven million acres were purchased at eleven cents an acre by a few of the leading citizens of boston. this one sale netted the yazoo speculators almost a million dollars, while the fact that such eminent men invested in the yazoo lands was a strong inducement to ordinary people to invest also. (see chappell, .) [ ] see chappell, - . [ ] ames to gore, feb. , , ames, i, . ames's alarm, however, was that the georgia land sale "threatens indian, spanish, and civil, wars." the immorality of the transaction appears to have been unknown to him. [ ] haskins, . [ ] harper, . hamilton's opinion is dated march , . in harper's pamphlet it is incorrectly printed . [ ] _annals_, d cong. st and d sess. . [ ] _annals_, d cong. st and d sess. - . the georgia act was transmitted to washington privately. [ ] _ib._ , - . [ ] _ib._ - . [ ] _am. state papers, public lands_, i, . [ ] _ib._ . [ ] bishop's pamphlet was called _georgia speculation unveiled_. [ ] bishop, . [ ] _ib._ . [ ] _ib._ [ ] _ib._ - . [ ] _ib._ . [ ] _ib._ . [ ] harper's opinion bears, opposite his signature, this statement: "considered at new-york august d, ." beyond all doubt it had been submitted to hamilton--perhaps prepared in collaboration with him. harper was himself a member of one of the purchasing companies and in the house he later defended the transaction. (see _annals_, th cong. d sess. .) [ ] harper, . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ . here harper quotes hamilton's opinion. [ ] _ib._ - . harper's pamphlet is valuable as containing, in compact form, all the essential documents relating to georgia's title as well as the sale and rescinding acts. other arguments on both sides appeared. one of the ablest of these was a pamphlet by john e. anderson and william j. hobby, attorneys of augusta, georgia, and published at that place in "at the instance of the purchasers." it is entitled: _the contract for the purchase of the western territory made with the legislature of georgia in the year , considered with a reference to the subsequent attempts of the state to impair its obligations_. [ ] see report of attorney-general charles lee, april , , _am. state papers, public lands_, i, ; report of senator aaron burr, may , , _ib._ ; report of senator james ross, march , , _ib._ . [ ] except by john milledge of georgia, who declared that "there was no legal claim upon ... any part of that territory." robert goodloe harper said that that question "must be determined in a court of justice," and argued for an "amicable settlement" of the claims. he himself once had an interest in the purchase, but had disposed of it three years before when it appeared that the matter must come before congress (_annals_, th cong. d sess. - ); the debate occupied parts of two days (see also _ib._ - ). in view of the heated controversy that afterward occurred, it seems scarcely credible that almost no attention was given in this debate to the fraudulent character of the transaction. [ ] may , sess. i, chap. , _u.s. statutes at large_, ii, . [ ] the entire commission was composed of three of the five members of jefferson's cabinet, to wit: james madison, secretary of state; albert gallatin, secretary of the treasury; and levi lincoln, attorney-general. [ ] report of the commissioners, _am. state papers, public lands_, i, - . "the interest of the united states, the tranquillity of those who may hereafter inhabit that territory, and various equitable considerations which may be urged in favor of most of the present claimants, render it expedient to enter into a compromise on reasonable terms." [ ] _annals_, th cong. st sess. - . [ ] _ib._ - , - . [ ] perez morton and gideon granger. morton, like granger, was a republican and a devoted jeffersonian. he went annually to washington to lobby for the yazoo claimants and assiduously courted the president. in boston the federalists said that his political activity was due to his personal interest in the georgia lands. (see _writings, j. q. a._: ford, iii, - .) [ ] _memorial of the agents of the new england mississippi company to congress, with a vindication of their title at law annexed_. [ ] this document, issued in pamphlet form in , is highly important. there can be little doubt that marshall read it attentively, since it proposed a submission of the acrimonious controversy to the supreme court. [ ] the postmaster-general was not made a member of the cabinet until . [ ] see _supra_, chap. iv. [ ] _annals_, th cong. d sess. . [ ] cutler, ii, . [ ] _annals_, th cong. d sess. . to such extravagance and inaccuracy does the frenzy of combat sometimes drive the most honest of men. when he made these assertions, john randolph knew that scores of purchasers from the land companies had invested in absolute good faith and before georgia had passed the rescinding act. his tirade done, however, this inexplicable man spoke words of sound though misapplied statesmanship. [ ] _ib._ - . [ ] referring to granger's speculations in the western reserve. [ ] the yazoo deal. [ ] _annals_, th cong. d sess. . [ ] findley was one of those who led the fight against the ratification of the constitution in the pennsylvania convention. (see vol. i, - , of this work.) [ ] james wilson. [ ] james gunn. [ ] _annals_, th cong. d sess. - . [ ] cutler, ii, . [ ] _annals_, th cong. d sess. - . [ ] _ib._ . [ ] see _supra_, chap. iv. [ ] _memoirs, j. q. a._: adams, i, . [ ] see vol. i, - , of this work. [ ] _ib._ , ; and vol. ii, . [ ] martin _vs._ hunter's lessees; see vol. iv, chap, iii, of this work. [ ] _memoirs, j. q. a._: adams, i, ; also see _ib._ , , - , - , - . [ ] haskins, . [ ] story to fay, may , , story, i, - ; and see cabot to pickering, jan. , . lodge: _cabot_, . [ ] _annals_, th cong. st sess. - . [ ] see abstract, _am. state papers, public lands_, i, - . [ ] records, u.s. circuit court, boston. [ ] judge chappell asserts that the pleadings showed, on the face of them, that the case was feigned. (see chappell, - .) [ ] fletcher _vs._ peck, cranch, - . [ ] fletcher _vs._ peck, cranch, . [ ] justices chase and cushing were absent because of illness. [ ] _memoirs, j. q. a._: adams, i, - . [ ] _memoirs, j. q. a._: adams, i, . on this occasion martin was so drunk that the court adjourned to prevent him from completing his argument. (see _md. hist. soc. fund-pub. no. _, .) this was the first time that drink seems to have affected him in the discharge of his professional duties. (see _supra_, footnote to - .) [ ] cranch, . [ ] cranch, - . [ ] cranch, - . [ ] _ib._ - . [ ] see vol. i, , of this work. [ ] cranch, - . [ ] cranch, - . [ ] _ib._ . [ ] cranch, - . [ ] at the risk of iteration, let it again be stated that, in fletcher _vs._ peck, marshall declared that a grant by a state, accepted by the grantees, is a contract; that the state cannot annul this contract, because the state is governed by the national constitution which forbids any state to pass any law "impairing the obligation of contracts"; that even if the contract clause were not in the constitution, fundamental principles of society protect vested rights; and that the courts cannot inquire into the motives of legislators no matter how corrupt those motives may be. [ ] for the first two decades of the national government land frauds were general. see, for example, letter of governor harrison of indiana, jan. , , _am. state papers, public lands_, i, ; report of michael leib, feb. , , _ib._ ; and letter of amos stoddard, jan. , , _ib._ - . [ ] marbury _vs._ madison, the burr trial, and fletcher _vs._ peck. [ ] _annals_, th cong. d sess. . [ ] harden: _life of george m. troup_, . [ ] _annals_, th cong. d. sess. . [ ] _ib._ [ ] _annals_, th cong. d sess. . [ ] _annals_, th cong. d sess. - . [ ] _annals_, th cong. d sess. . [ ] _annals_, th cong. d sess. . [ ] _ib._ - . [ ] _annals_, th cong. d sess. . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ - . [ ] _annals_, th cong. d sess. ; see also sess. i, chap. , march , , _u.s. statutes at large_, iii, . [ ] daniel to ezekiel webster, march , , _private correspondence of daniel webster_: webster, . end of volume iii appendix appendix a the paragraph omitted from the final draft of jefferson's message to congress, december , [ ] applications from different persons suffering prosecution under the act usually called the sedition act, claimed my early attention to that instrument. our country has thought proper to distribute the powers of it's government among three equal & independent authorities, constituting each a check on one or both of the others, in all attempts to impair it's constitution. to make each an effectual check, it must have a right in cases which arise within the line of it's proper functions, where, equally with the others, it acts in the last resort & without appeal, to decide on the validity of an act according to it's own judgment, & uncontrouled by the opinions of any other department. we have accordingly, in more than one instance, seen the opinions of different departments in opposition to each other, & no ill ensue. the constitution moreover, as a further security for itself, against violation even by a concurrence of all the departments, has provided for it's own reintegration by a change of the persons exercising the functions of those department. succeeding functionaries have the same right to judge of the conformity or non-conformity of an act with the constitution, as their predecessors who past it. for if it be against that instrument it is a perpetual nullity. uniform decisions indeed, sanctioned by successive functionaries, by the public voice, and by repeated elections would so strengthen a construction as to render highly responsible a departure from it. on my accession to the administration, reclamations against the sedition act were laid before me by individual citizens, claiming the protection of the constitution against the sedition act. called on by the position in which the nation had placed me, to exercise in their behalf my free & independent judgment, i took the act into consideration, compared it with the constitution, viewed it under every aspect of which i thought it susceptible, and gave to it all the attention which the magnitude of the case demanded. on mature deliberation, in the presence of the nation, and under the tie of the solemn oath which binds me to them & to my duty, i do declare that i hold that act to be in palpable & unqualified contradiction to the constitution. considering it then as a nullity, i have relieved from oppression under it those of my fellow-citizens who were within the reach of the functions confided to me. in recalling our footsteps within the limits of the constitution, i have been actuated by a zealous devotion to that instrument. it is the ligament which binds us into one nation. it is, to the national government, the law of it's existence, with which it began, and with which it is to end. infractions of it may sometimes be committed from inadvertence, sometimes from the panic, or passions of a moment. to correct these with good faith, as soon as discovered, will be an assurance to the states that, far from meaning to impair that sacred charter of it's authorities, the general government views it as the principle of it's own life.[ ] footnotes: [ ] see - of this volume. [ ] jefferson mss. lib. cong. appendix b letter of john taylor "of caroline" to john breckenridge containing arguments for the repeal of the federalist national judiciary act of [ ] virginia--caroline--dec^r ^{d.} dear sir an absence from home, when your letter arrived, has been the cause which delayed this answer. i confess that i have not abstracted myself from the political world, but i must at the same time acknowledge, that this kind of world, of which i am a member, is quite distinct from that in which your country has placed you. mine is a sort of metaphysical world, over which the plastick power of the imagination is unlimited--yours, being only physical, cannot be modulated by fancy. the ways of mine are smooth & soft; of yours, rugged & thorny. and a most prosperous traveller into the political world which i inhabit, generally becomes unfortunate if he wanders into the region of which you are now a resident. yet, as a solicitation for the continuance of your correspondence, i will venture upon a short excursion out of my own atmosphere, in relation to the subject you state. by way of bringing the point into plain view, i will suppose some cases. suppose a congress and president should conspire to erect five times as many courts & judges, as were made by the last law, meerely for the sake of giving salaries to themselves or their friends, and should annex to each office, a salary of , dollars. or suppose a president in order to reward his counsel on an impeachment, and the members of the senate who voted for his acquittal, had used his influence with the legislature to erect useless tribunals, paid by him in fees or bribes. or, lastly, suppose a long list of courts and judges to be established, without any ill intention, but meerly from want of intellect in the legislature, which from experience are found to be useless, expensive and unpopular. are all these evils originating either in fraud or error, remediless under the principles of your constitution? the first question is, whether the _office_ thus established, is to continue. the second, whether the officer is to continue, after the office is abolished, as being unnecessary. congress are empowered "from _time to time_ to ordain & establish inferior courts." the law for establishing the present inferior courts, is a legislative construction, affirming that under this clause, congress may _abolish_ as well as create these _judicial offices_; because it does expressly _abolish_ the then existing inferior courts, for the purpose of making way for the present. it is probable that this construction is correct, but it is equally pertinent to our object, whether it is or not. if it is, then the present inferior courts may be abolished, as constitutionally as the last; if it is not, then the law for abolishing the former courts, and establishing the present, was unconstitutional, and being so, is undoubtedly repealable. thus the only ground which the present inferior courts can take, is, that congress may from time to time, regulate, create or abolish such courts, as the public interest may dictate, because such is the very tenure under which they exist. the second question is, whether the officer is to continue after the office is abolished, as being useless or pernicious. the constitution declares "that the judge shall hold his _office_ during good behavior." could it mean, that he should hold this _office_ after it was _abolished_? could it mean that his tenure should be limited by behaving well in an office, which did not exist? it must either have intended these absurdities, or admit of a construction which will avoid them. this construction obviously is, that the officer should hold that which he might hold, namely, an existing office, so long as he did that which he might do, namely, his duty in that office; and not that he should hold an office, which did not exist, or perform duties not sanctioned by law. if therefore congress can abolish the courts, as they did by the last law, the officer dies with his office, unless you allow the constitution to intend impossibilities as well as absurdities. a construction bottomed upon either, overthrows the benefits of language and intellect. the article of the constitution under consideration closes with an idea, which strongly supports my construction. the salary is to be paid "during their continuance in office." this limitation of salary is perfectly clear and distinct. it literally excludes the idea of paying a salary, when the officer is not in office; and it is undeniably certain, that he cannot be in office, when there is no office. there must have been some other mode by which the officer should cease to be in office, than that of _bad behaviour_, because, if this had not been the case, the constitution would have directed "that the judges should hold their offices _and salaries_ during good behaviour," instead of directing "that they should" hold the salaries during _their continuance_ in office. this could only be an abolition of the office itself, by which the salary would cease with the office, tho' the judge might have conducted himself unexceptionably. this construction certainly coincides with the public opinion, and the principles of the constitution. by neither is the idea for a moment tolerated, of maintaining burthensome sinecure offices, to enrich unfruitful individuals. nor is it incompatible with the "good behaviour" tenure, when its origin is considered. it was invented in england, to counteract the influence of the crown over the judges, and we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists, in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of lords & commons, and ours by no similar or easy process. the tenure however is evidently bottomed upon the idea of securing the honesty of judges, whilst exercising the office, and not upon that of sustaining useless or pernicious offices, for the sake of judges. the regulation of offices in england, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of the government, which necessarily devolves upon it, and is beyond the foresight of a constitution, because it depends on variable circumstances. and in england, a regulation of the courts of justice, was never supposed to be a violation of the "good behaviour" tenure. if this principle should disable congress from erecting tribunals which temporary circumstances might require, without entailing them upon the society after these circumstances by ceasing, had converted them in grievances, it would be used in a mode, contemplated neither in its original or duplicate. whether courts are erected by regard to the administration of justice, or with the purpose of rewarding a meritorious faction, the legislature may certainly abolish them without infringing the constitution, whenever they are not required by the administration of justice, or the merit of the faction is exploded, and their claim to reward disallowed. with respect to going into the judiciary system farther at present, the length of this trespass forbids it, and perhaps all ideas tending towards the revision of our constitution would be superfluous, as i fear it is an object not now to be attained. all my hopes upon this question rest i confess with mr: jefferson, and yet i know not how far he leans towards the revision. but he will see & the people will feel, that his administration bears a distinct character, from that of his predecessor, and of course discover this shocking truth, that the nature of our government depends upon the complection of the president, and not upon the principles of the constitution. he will not leave historians to say "this was a good president, but like a good roman emperor he left the principles of the government unreformed, so that his country remained exposed to eternal repetitions of those oppressions after his death, which he had himself felt and healed during his life." and yet my hopes are abated by some essays signed "solon" published at washington, and recommending amendments to the constitution. they are elegantly written, but meerly skim along the surface of the subject, without touching a radical idea. they seem to be suggested by the pernicious opinion, that the administration only has been chargeable with the defectiveness of our operating government heretofore. who is the author of these pieces? nothing can exceed our exultation on account of the president's message, and the countenance of congress--nothing can exceed the depression of the monarchists. they deprecate political happiness--we hope for the president's aid to place it on a rock before he dies. it would have given me great pleasure to have seen you here, and i hope it may be still convenient for you to call. i close with your proposal to correspond, if the political wanderings of a man, almost in a state of vegitation, will be accepted for that interesting detail of real affairs, with which you propose occasionally to treat me. i am, with great regard, dr sir yr: mo: ob^{t:} sev^{t.} john taylor[ ] footnotes: [ ] see footnote to of this volume. [ ] breckenridge mss. lib. cong. appendix c cases of which chief justice marshall may have heard before he delivered his opinion in marbury _vs._ madison.[ ] also recent books and articles on the doctrine of judicial review of legislation holmes _vs._ walton (november, , new jersey), before chief justice david brearly. (see austin scott in american _historical review_, iv, _et seq._) if marshall ever heard of this case, it was only because paterson, who was associate justice with marshall when the supreme court decided marbury _vs._ madison, was attorney-general in new jersey at the time holmes _vs._ walton was decided. both brearly and william paterson were members of the constitutional convention of . (see corwin, footnote to - .) commonwealth _vs._ caton (november, , call, - ), a noted virginia case. (see tyler, i, - .) the language of the court in this case is merely _obiter dicta_; but george wythe and john blair were on the bench, and both of them were afterwards members of the constitutional convention. blair was appointed by president washington as one of the associate justices of the supreme court. as to the much-talked-of rhode island case of trevett _vs._ weeden (september, ; see arnold: _history of rhode island_, ii, - , varnum's pamphlet, _case of trevett vs. weeden_, and chandler's _criminal trials_, ii, - ), it is improbable that marshall had any knowledge whatever of it. it arose in when the country was in chaos; no account of it appeared in the few newspapers that reached virginia, and varnum's description of the incident--for it can hardly be called a case--could scarcely have had any circulation outside of new england. it was referred to in the constitutional convention at philadelphia in , but the journals of that convention were kept secret until many years after marbury _vs._ madison was decided. it is unlikely that the recently discussed case of bayard _vs._ singleton (north carolina, november, , martin, - ), ever reached marshall's attention except by hearsay. the second hayburn case (august, , dallas, ; and see _annals_, d cong. d sess. - ). for a full discussion of this important case see particularly professor max farrand's analysis in the _american historical review_ (xiii, - ), which is the only satisfactory treatment of it. see also thayer: _cases on constitutional law_ ( , footnote to ). kamper _vs._ hawkins (november, , va. ca. _et seq._), a case which came directly under marshall's observation. van horne's lessee _vs._ dorrance (april, , dallas, ), in which justice paterson of the supreme court said all that marshall repeated in marbury _vs._ madison upon the power of the judiciary to declare legislation void. calder _vs._ bull (august, , dallas, - ), in which, however, the court questioned its power to annul legislation. cooper _vs._ telfair (february, , dallas, ). these last two cases and the hayburn case had been decided by justices of the supreme court. whittington _vs._ polk (maryland, april, , harris and johnson, - ). marshall surely was informed of this case by chase who, as chief justice of maryland, decided it. the report, however, was not published until . (see mclaughlin: _the courts, the constitution, and parties_, - .) in his opinion in this case justice chase employed precisely the same reasoning used by marshall in marbury _vs._ madison to show the power of courts to declare invalid legislative acts that violate the constitution. the old court of appeals, under the articles of confederation, denounced as unconstitutional the law that assigned circuit duties to the judges of that appellate tribunal; and this was cited by thomas morris of new york and by john stanley of south carolina in the judiciary debate of .[ ] as to the statement of chief justice, later governor thomas hutchinson of massachusetts, in , and the ancient british precedents, cited by robert ludlow fowler in the _american law review_ (xxix, - ), it is positive that marshall never had an intimation that any such pronouncements ever had been made. neither, in all likelihood, had marshall known of the highly advertised case of rutgers _vs._ waddington, decided by a new york justice of the peace in (see _american law review_, xix, ), and the case of bowman _vs._ middleton (south carolina, may, , bay, - ) which was not printed until . (see mclaughlin, - .) the same may be said of the north carolina controversy, state _vs._ ----, decided in april, ( haywood, - ), and of lindsay _et al vs._ commissioners (south carolina, october, , bay, - ), the report of which was not printed until . for a scholarly treatment of the matter from an historical and legally professional point of view, see _doctrine of judicial review_ by professor edward s. corwin of the department of history and politics, princeton university; also _the courts, the constitution, and parties_, by professor andrew c. mclaughlin of the department of history, university of chicago. the discussion by these scholars is thorough. all cases are critically examined, and they omit only the political exigency that forced marshall's opinion in marbury _vs._ madison. the student should also consult the paper of william m. meigs, "the relation of the judiciary to the constitution," in the _american law review_ (xix, - ), and that of frank e. melvin, "the judicial bulwark of the constitution," in the _american political science review_ (viii, - ). professor charles a. beard's _the supreme court and the constitution_ contains trustworthy information not readily accessible elsewhere, as well as sound comment upon the whole subject. _judicial power and unconstitutional legislation_, by brinton coxe, although published in , is still highly valuable. and _power of federal judiciary over legislation_, by j. hampden dougherty, will be profitable to the student. marbury _vs._ madison is attacked ably, if petulantly, by dean trickett, "judicial nullification of acts of congress," in the _north american review_ (clxxxv, _et seq._), and also by james b. mcdonough, "the alleged usurpation of power by the federal courts," in the _american law review_ (xlvi, - ). an ingenious and comparatively recent dissent from the theory of judicial supervision of legislation is the argument of chief justice walter clark of the supreme court of north carolina, "government by judges." (see senate document no. , d congress, d session.) with regard to the possible effect on american law of foreign assertions of the supremacy of the judiciary, particularly that of france, the address of james m. beck of the new york bar, before the pennsylvania bar association on june , , and reported in the twenty-first annual report of that association ( - ), is a careful and exhaustive study. footnotes: [ ] see - of this volume. [ ] see footnote to p. of this volume. appendix d text, as generally accepted, of the cipher letter of aaron burr to james wilkinson, dated july , [ ] your letter postmarked thirteenth may, is received. at length i have obtained funds, and have actually commenced. the eastern detachments, from different points and under different pretences, will rendezvous on the ohio first of november. everything internal and external favors our views. naval protection of england is secured. truxtun is going to jamaica to arrange with the admiral on that station. it will meet us at the mississippi. england, a navy of the united states, are ready to join, and final orders are given to my friends and followers. it will be a host of choice spirits. wilkinson shall be second to burr only; wilkinson shall dictate the rank and promotion of his officers. burr will proceed westward first august, never to return. with him goes his daughter; her husband will follow in october, with a corps of worthies. send forthwith an intelligent and confidential friend with whom burr may confer; he shall return immediately with further interesting details; this is essential to concert and harmony of movement. send a list of all persons known to wilkinson west of the mountains who could be useful, with a note delineating their characters. by your messenger send me four or five commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully. already are orders given to the contractor to forward six months' provisions to points wilkinson may name; this shall not be used until the last moment, and then under proper injunctions. our object, my dear friend, is brought to a point so long desired. burr guarantees the result with his life and honor, with the lives and honor and the fortunes of hundreds, the best blood of our country. burr's plan of operation is to move down rapidly from the falls, on the fifteenth of november, with the first five hundred or a thousand men, in light boats now constructing for that purpose; to be at natchez between the fifth and fifteenth of december, there to meet you; there to determine whether it will be expedient in the first instance to seize on or pass by baton rouge. on receipt of this send burr an answer. draw on burr for all expenses, etc. the people of the country to which we are going are prepared to receive us; their agents, now with burr, say that if we will protect their religion, and will not subject them to a foreign power, that in three weeks all will be settled. the gods invite us to glory and fortune; it remains to be seen whether we deserve the boon. the bearer of this goes express to you. he is a man of inviolable honor and perfect discretion, formed to execute rather than project, capable of relating facts with fidelity, and incapable of relating them otherwise; he is thoroughly informed of the plans and intentions of burr, and will disclose to you as far as you require, and no further. he has imbibed a reverence for your character, and may be embarrassed in your presence; put him at ease, and he will satisfy you. footnotes: [ ] see - , - , of this volume. appendix e excerpt from speech of william wirt at the trial of aaron burr[ ] who is blennerhassett? a native of ireland, a man of letters, fled from the storms of his own country to find quiet in ours. his history shows that war is not the natural element of his mind. if it had been, he never would have exchanged ireland for america. so far is an army from furnishing the society natural and proper to mr. blennerhassett's character, that on his arrival in america, he retired even from the population of the atlantic states, and sought quiet and solitude in the bosom of our western forests. but he carried with him taste and science and wealth; and lo, the desert smiled! possessing himself of a beautiful island in the ohio, he rears upon it a palace and decorates it with every romantic embellishment of fancy. a shrubbery, that shenstone might have envied, blooms around him. music, that might have charmed calypso and her nymphs, is his. an extensive library spreads its treasures before him. a philosophical apparatus offers to him all the secrets and mysteries of nature. peace, tranquillity, and innocence shed their mingled delights around him. and to crown the enchantment of the scene, a wife, who is said to be lovely even beyond her sex and graced with every accomplishment that can render it irresistible, had blessed him with her love and made him the father of several children. the evidence would convince you, that this is but a faint picture of the real life. in the midst of all this peace, this innocent simplicity and this tranquillity, this feast of the mind, this pure banquet of the heart, the destroyer comes; he comes to change this paradise into a hell. yet the flowers do not wither at his approach. no monitory shuddering through the bosom of their unfortunate possessor warns him of the ruin that is coming upon him. a stranger presents himself. introduced to their civilities by the high rank which he had lately held in his country, he soon finds his way to their hearts, by the dignity and elegance of his demeanor, the light and beauty of his conversation and the seductive and fascinating power of his address. the conquest was not difficult. innocence is ever simple and credulous. conscious of no design itself, it suspects none in others. it wears no guard before its breast. every door and portal and avenue of the heart is thrown open, and all who choose it enter. such was the state of eden when the serpent entered its bowers. the prisoner, in a more engaging form, winding himself into the open and unpractised heart of the unfortunate blennerhassett, found but little difficulty in changing the native character of that heart and the objects of its affection. by degrees he infuses into it the poison of his own ambition. he breathes into it the fire of his own courage; a daring and desperate thirst for glory; an ardour panting for great enterprises, for all the storm and bustle and hurricane of life. in a short time the whole man is changed, and every object of his former delight is relinquished. no more he enjoys the tranquil scene; it has become flat and insipid to his taste. his books are abandoned. his retort and crucible are thrown aside. his shrubbery blooms and breathes its fragrance upon the air in vain; he likes it not. his ear no longer drinks the rich melody of music; it longs for the trumpet's clangor and the cannon's roar. even the prattle of his babes, once so sweet, no longer affects him; and the angel smile of his wife, which hitherto touched his bosom with ecstasy so unspeakable, is now unseen and unfelt. greater objects have taken possession of his soul. his imagination has been dazzled by visions of diadems, of stars and garters and titles of nobility. he has been taught to burn with restless emulation at the names of great heroes and conquerors. his enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately permitted not the winds of summer to visit too roughly, we find her shivering at midnight, on the winter banks of the ohio and mingling her tears with the torrents, that froze as they fell. yet this unfortunate man, thus deluded from his interest and his happiness, thus seduced from the paths of innocence and peace, thus confounded in the toils that were deliberately spread for him and overwhelmed by the mastering spirit and genius of another--this man, thus ruined and undone and made to play a subordinate part in this grand drama of guilt and treason, this man is to be called the principal offender, while he, by whom he was thus plunged in misery, is comparatively innocent, a mere accessory! is this reason? is it law? is it humanity? sir, neither the human heart nor the human understanding will bear a perversion so monstrous and absurd! so shocking to the soul! so revolting to reason! let aaron burr then not shrink from the high destination which he has courted, and having already ruined blennerhassett in fortune, character and happiness forever, let him not attempt to finish the tragedy by thrusting that ill-fated man between himself and punishment.[ ] footnotes: [ ] see - of this volume. [ ] _burr trials_, ii, - . appendix f essential part of marshall's opinion on constructive treason delivered at the trial of aaron burr, on monday, august , [ ] the place in which a crime was committed is essential to an indictment, were it only to shew the jurisdiction of the court. it is also essential for the purpose of enabling the prisoner to make his defence.... this necessity is rendered the stronger by the constitutional provision that the offender "shall be tried in the state and district wherein the crime shall have been committed," and by the act of congress which requires that twelve petty jurors at least shall be summoned from the county where the offence was committed. a description of the particular manner in which the war was levied seems also essential to enable the accused to make his defence. the law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him. in common justice the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the accusation and the circumstances which will be adduced against him. * * * * * treason can only be established by the proof of overt acts; and ... those overt acts only which are changed in the indictment can be given in evidence, unless perhaps as corroborative testimony after the overt acts are proved. that clause in the constitution too which says that in all criminal prosecutions the accused shall enjoy the right "to be informed of the nature and cause of the accusation" is considered as having a direct bearing on this point. it secures to him such information as will enable him to prepare for his defence. it seems then to be perfectly clear that it would not be sufficient for an indictment to allege generally that the accused had levied war against the united states. the charge must be more particularly specified by laying what is termed an overt act of levying war.... if it be necessary to specify the charge in the indictment, it would seem to follow, irresistibly, that the charge must be proved as laid.... might it be otherwise, the charge of an overt act would be a mischief instead of an advantage to the accused. it would lead him from the true cause and nature of the accusation instead of informing him respecting it. but it is contended on the part of the prosecution that, although the accused had never been with the party which assembled at blennerhassett's island, and was, at the time, at a great distance, and in a different state, he was yet legally present, and therefore may properly be charged in the indictment as being present in fact. it is therefore necessary to inquire whether in this case the doctrine of constructive presence can apply. it is conceived by the court to be possible that a person may be concerned in a treasonable conspiracy and yet be legally, as well as actually absent while some one act of the treason is perpetrated. if a rebellion should be so extensive as to spread through every state in the union, it will scarcely be contended that every individual concerned in it is legally present at every overt act committed in the course of that rebellion. it would be a very violent presumption indeed, ... to presume that even the chief of the rebel army was legally present at every such overt act. if the main rebel army, with the chief at its head, should be prosecuting war at one extremity of our territory, say in new-hampshire--if this chief should be there captured and sent to the other extremity for the purpose of trial--if his indictment instead of alleging an overt act, which was true in point of fact, should allege that he had assembled some small party, which in truth he had not seen, and had levied war by engaging in a skirmish in georgia at a time when in reality he was fighting a battle in new-hampshire--if such evidence would support such an indictment by the fiction that he was legally present though really absent, all would ask to what purpose are those provisions in the constitution, which direct the place of trial and ordain that the accused shall be informed of the nature and cause of the accusation? but that a man may be legally absent, who has counselled or procured a treasonable act, is proved by all those books which treat upon the subject; and which concur in declaring that such a person is a principal traitor, not because he was legally present, but because in treason all are principals. yet the indictment, speaking upon general principles, would charge him according to the truth of the case.... if the conspirator had done nothing which amounted to levying of war, and if by our constitution the doctrine that an accessory becomes a principal be not adopted, in consequence of which the conspirator could not be condemned under an indictment stating the truth of the case, it would be going very far to say that this defect, if it be termed one, may be cured by an indictment stating the case untruly. * * * * * in point of law then, the man, who incites, aids, or procures a treasonable act, is not merely in consequence of that incitement, aid or procurement, legally present when that act is committed. if it do not result, from the nature of the crime, that all who are concerned in it are legally present at every overt act, then each case depends upon its own circumstances; and to judge how far the circumstances of any case can make him legally present, who is in fact absent, the doctrine of constructive presence must be examined. * * * * * the whole treason laid in this indictment is the levying of war in blennerhassett's island; and the whole question to which the inquiry of the court is now directed is whether the prisoner was legally present at that fact. i say this is the whole question; because the prisoner can only be convicted on the overt act laid in the indictment. with respect to this prosecution, it is as if no other overt act existed. if other overt acts can be inquired into, it is for the sole purpose of proving the particular fact charged. it is as evidence of the crime consisting of this particular fact, not as establishing the general crime by a distinct fact. the counsel for the prosecution have charged those engaged in the defence with considering the overt act as the treason, whereas it ought to be considered solely as the evidence of the treason; but the counsel for the prosecution seem themselves not to have sufficiently adverted to this clear principle; that though the overt act may not be itself the treason, it is the sole act of that treason which can produce conviction. it is the sole point in issue between the parties. and the only division of that point, if the expression be allowed, which the court is now examining, is the constructive presence of the prisoner at the fact charged.... had the prisoner set out with the party from beaver for blennerhassett's island, or perhaps had he set out for that place, though not from beaver, and had arrived in the island, he would have been present at the fact. had he not arrived in the island, but had taken a position near enough to coöperate with those on the island, to assist them in any act of hostility, or to aid them if attacked, the question whether he was constructively present would be a question compounded of law and fact, which would be decided by the jury, with the aid of the court, so far as respected the law. in this case the accused would have been of the particular party assembled on the island, and would have been associated with them in the particular act of levying war said to have been committed on the island. but if he was not with the party at any time before they reached the island--if he did not join them there, or intend to join them there--if his personal coöperation in the general plan was to be afforded elsewhere, at a great distance, in a different state--if the overt acts of treason to be performed by him were to be distinct overt acts--then he was not of the particular party assembled at blennerhassett's island, and was not constructively present, aiding and assisting in the particular act which was there committed. the testimony on this point, so far as it has been delivered, is not equivocal. there is not only no evidence that the accused was of the particular party which assembled on blennerhassett's island; but the whole evidence shows he was not of that party. in felony then, admitting the crime to have been completed on the island, and to have been advised, procured, or commanded by the accused, he would have been incontestably an accessory and not a principal. but in treason, it is said, the law is otherwise, because the theatre of action is more extensive. the reasoning applies in england as strongly as in the united states. while in ' and ' the family of stuart sought to regain the crown they had forfeited, the struggle was for the whole kingdom; yet no man was ever considered as legally present at one place, when actually at another; or as aiding in one transaction, while actually employed in another. with the perfect knowledge that the whole nation may be the theatre of action, the english books unite in declaring that he, who counsels, procures or aids treason, is guilty accessorially and solely in virtue of the common law principle, that what will make a man an accessory in felony makes him a principal in treason. so far from considering a man as constructively present at every overt act of the general treason in which he may have been concerned, the whole doctrine of the books limits the proof against him to those particular overt acts of levying war with which he is charged. what would be the effect of a different doctrine? clearly that which has been stated. if a person levying war in kentucky, may be said to be constructively present and assembled with a party carrying on war in virginia at a great distance from him, then he is present at every overt act performed anywhere. he may be tried in any state on the continent, where any overt act has been committed. he may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that he committed other acts. this is, perhaps, too extravagant to be in terms maintained. certainly it cannot be supported by the doctrines of the english law. * * * * * in conformity with principle and with authority then, the prisoner at the bar was neither legally nor actually present at blennerhassett's island; and the court is strongly inclined to the opinion that without proving an actual or legal presence by two witnesses, the overt act laid in this indictment cannot be proved. but this opinion is controverted on two grounds. the first is, that the indictment does not charge the prisoner to have been present. the second, that although he was absent, yet if he caused the assemblage, he may be indicted as being present, and convicted on evidence that he caused the treasonable act. the first position is to be decided by the indictment itself.... the court understands it to be directly charged that the prisoner did assemble with the multitude and did march with them.... the charges of this special indictment therefore must be proved as laid, and no evidence which proves the crime in a form substantially different can be received.... but suppose the law to be as is contended by the counsel for the united states. suppose an indictment, charging an individual with personally assembling among others and thus levying war, may be satisfied with the proof that he caused the assemblage. what effect will this law have upon this case? the guilt of the accused, if there be any guilt, does not consist in the assemblage; for he was not a member of it. the simple fact of assemblage no more affects one absent man than another. his guilt then consists in procuring the assemblage, and upon this fact depends his criminality. the proof relative to the character of an assemblage must be the same whether a man be present or absent. in general, to charge any individual with the guilt of an assemblage, the fact of his presence must be proved: it constitutes an essential part of the overt act. if then the procurement be substituted in the place of presence, does it not also constitute an essential part of the overt act? must it not also be proved? must it not be proved in the same manner that presence must be proved? if in one case the presence of the individual make the guilt of the assemblage his guilt, and in the other case the procurement by the individual make the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses. collateral points may, say the books, be proved according to the course of the common law; but is this a collateral point? is the fact, without which the accused does not participate in the guilt of the assemblage if it were guilty, a collateral point? this cannot be. the presence of the party, where presence is necessary, being a part of the overt act must be positively proved by two witnesses. no presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the constitution and the law. if procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be connected or inferred, can satisfy the constitution and the law. the mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences or of reasoning; the fact must be proved by two witnesses. neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures of inferences or of reasoning; the fact itself must be proved by two witnesses, and must have been committed within the district. if it be said that the advising or procurement of treason is a secret transaction, which can scarcely ever be proved in the manner required by this opinion, the answer which will readily suggest itself is, that the difficulty of proving a fact will not justify conviction without proof. certainly it will not justify conviction without a direct and positive witness in a case where the constitution requires two. the more correct inference from this circumstance would seem to be, that the advising of the fact is not within the constitutional definition of the crime. to advise or procure a treason is in the nature of conspiring or plotting treason, which is not treason in itself.... the th amendment to the constitution has been pressed with great force.... the accused cannot be said to be "informed of the nature and cause of the accusation" unless the indictment give him that notice which may reasonably suggest to him the point on which the accusations turns [_sic_], so that he may know the course to be pursued in his defence. it is also well worthy of consideration that this doctrine, so far as it respects treason, is entirely supported by the operation of the common law, which is said to convert the accessory before the fact into the principal, and to make the act of the principal his act. the accessory before the fact is not said to have levied war. he is not said to be guilty under the statute, but the common law attaches to him the guilt of that fact which he has advised or procured; and, as contended, makes it his act. this is the operation of the common law not the operation of the statute. it is an operation then which can only be performed where the common law exists to perform: it is the creature of the common law, and the creature presupposes its creator. to decide then that this doctrine is applicable to the united states would seem to imply the decision that the united states, as a nation, have a common law which creates and defines the punishment of crimes accessorial in their nature. it would imply the further decision that these accessorial crimes are not in the case of treason excluded by the definition of treason given in the constitution.... i have said that this doctrine cannot apply to the united states without implying those decisions respecting the common law which i have stated; because, should it be true as is contended that the constitutional definition of treason comprehends him who advises or procures an assemblage that levies war, it would not follow that such adviser or procurer might be charged as having been present at the assemblage. if the adviser or procurer be within the definition of levying war, and independent of the agency of the common law do actually levy war, then the advisement of procurement is an overt act of levying war. if it be the overt action which he is to be convicted, then it must be charged in the indictment; for he can only be convicted on proof of the overt acts which are charged. to render this distinction more intelligible let it be recollected, that although it should be conceded that since the statutes of william and mary he who advises or procures a treason may, in england, be charged as having committed that treason by virtue of the common law operation, which is said so far as respects the indictment to unite the accessorial to the principal offence and permit them to be charged as one, yet it can never be conceded that he who commits one overt act under the statute of edward can be charged and convicted on proof of another overt act. if then procurement be an overt act of treason under the constitution, no man can be convicted for the procurement under an indictment charging him with actually assembling, whatever may be the doctrine of the common law in the case of an accessorial offender.[ ] footnotes: [ ] see _supra_, chap. ix. 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(_state trials richard ii. to george i._) _statutes at large._ _see_ united states statutes. steiner, bernard christian. life and correspondence of james mchenry. cleveland. . stevens, thaddeus. _see_ woodburn, james albert. stevens, william bacon. history of georgia from its first discovery by europeans to the adoption of the present constitution in . vols. vol. i, new york, . vol. ii, philadelphia, . (stevens.) story, joseph. life and letters. edited by william wetmore story. vols. boston. . (story.) supreme court. _see_ united states supreme court. thayer, james bradley. cases on constitutional law. vols. cambridge. - . ---- john marshall. boston. . [riverside biographical series.] troup, george michael. _see_ harden, edward jenkins. tucker, george. life of thomas jefferson. vols. philadelphia. . (tucker.) tyler, lyon gardiner. letters and times of the tylers. vols. richmond. - . (tyler.) united states congress. debates and proceedings, first congress, first session, march , , to eighteenth congress, first session, may , . [known as the annals of congress.] vols. washington. - . (_annals._) ---- documents, legislative and executive. _see_ american state papers. ---- history of the last session of congress, which commenced on the seventh of december, . [taken from the _national intelligencer_.] washington. . (_hist. last sess. cong, which commenced th dec. ._) united states senate. document no. . d congress, d session. washington. . ---- journal of the executive proceedings of the senate of the united states of america, from the commencement of the first to the termination of the nineteenth congress. vols. washington. . (_journal exec. proc. senate._) _united states statutes at large._ vols. i, ii, iii. boston. . (_u.s. statutes at large._) united states supreme court. cases adjudged in the supreme court at october term, . reported by john chandler bancroft davis. vol. iii. new york and albany. . _see also_ cranch, william; dallas, alexander james; howard, benjamin chew; peters, richard, jr.; wallace, john william. * * * * * transcriber's notes: . passages in italics are surrounded by _underscores_. . obvious errors in spelling and punctuation have been corrected. . footnotes have been renumbered and moved from the page end to the end of their respective chapters. . images have been moved from the middle of a paragraph to the closest paragraph break. . certain words use an oe ligature in the original. . carat character (^) followed by a single letter or a set of letters in curly brackets is indicative of subscript in the original book. the life of john marshall standard library edition in four volumes volume ii [illustration: john marshall as chief justice from the portrait by jarvis] the life of john marshall by albert j. beveridge volume ii politician, diplomatist statesman - [illustration] boston and new york houghton mifflin company the riverside press cambridge copyright, , by albert j. beveridge copyright, , by houghton mifflin company all rights reserved contents i. influence of the french revolution on america the effort of the french king to injure great britain by assisting the revolt of the colonists hastens the upheaval in france--the french revolution and american government under the constitution begins at the same time--the vital influence of the french convulsion on americans--impossible to understand american history without considering this fact--all americans, at first, favor the french upheaval which they think a reform movement--marshall's statement--american newspapers--gouverneur morris's description of the french people--lafayette's infatuated reports--marshall gets black and one-sided accounts through personal channels--the effect upon him--the fall of the bastille--lafayette sends washington the key of the prison-- the reign of blood in paris applauded in america--american conservatives begin to doubt the wisdom of the french revolution--burke writes his "reflections"--paine answers with his "rights of man"--the younger adams replies in the "publicola" essays--he connects jefferson with paine's doctrines--"publicola" is viciously assailed in the press-- jefferson writes paine--the insurrection of the blacks in st. domingo--marshall's account--jefferson writes his daughter: "i wish we could distribute the white exiles among the indians"--marshall's statement of effect of the french revolution in america--jefferson writes to short: "i would rather see half the earth desolated"--louis xvi guillotined--genêt arrives in america--the people greet him frantically--his outrageous conduct--the republican newspapers suppress the news of or defend the atrocities of the revolutionists--the people of philadelphia guillotine louis xvi in effigy--marie antoinette is beheaded--american rejoicing at her execution--absurd exaggeration by both radicals and conservatives in america--the french expel lafayette--washington sends marshall's brother to secure his release from the allies--he fails--effect upon marshall--ridiculous conduct of the people in america--all titles are denounced: "honorable," "reverend," even "sir" or "mr." considered "aristocratic"--the "democratic societies" appear--washington denounces them--their activities--marshall's account of their decline--the influence on america of the french revolution summarized--marshall and jefferson. ii. a virginia nationalist the national government under the constitution begins--popular antagonism to it is widespread--virginia leads this general hostility--madison has fears--jefferson returns from france-- he is neutral at first--madison is humiliatingly defeated for senator of the united states because of his nationalism--the legislature of virginia passes ominous anti-nationalist resolutions--the republicans attack everything done or omitted by washington's administration--virginia leads the opposition--washington appoints marshall to be united states district attorney--marshall declines the office--he seeks and secures election to the legislature--is given his old committees in the house of delegates--is active in the general business of the house--the amendments to the constitution laid before the house of delegates--they are intended only to quiet opposition to the national government--hamilton presents his financial plan--"the first report on the public credit"--it is furiously assailed--hamilton and jefferson make the famous assumption-capitol "deal"--jefferson's letters--the virginia legislature strikes assumption--virginia writes the magna charta of state rights--marshall desperately resists these anti-nationalist resolutions and is badly beaten--jefferson finally agrees to the attitude of virginia--he therefore opposes the act to charter the bank of the united states--he and hamilton give contrary opinions--the contest over "implied powers" begins--political parties appear, divided by nationalism and localism--political parties not contemplated by the constitution--the word "party" a term of reproach to our early statesmen. iii. leading the virginia federalists marshall, in richmond, is aggressive for the unpopular measures of washington's administration--danger of such conduct in virginia--jefferson takes madison on their celebrated northern tour--madison is completely changed--jefferson fears marshall-- wishes to get rid of him: "make marshall a judge"--jefferson's unwarranted suspicions--he savagely assails the administration of which he is a member--he comes to blows with hamilton--the republican party grows--the causes for its increased strength-- pennsylvania resists the tax on whiskey--the whiskey rebellion-- washington denounces and jefferson defends it--militia ordered to suppress it--marshall, as brigadier-general of militia, prepares to take the field--war breaks out between england and france--washington proclaims american neutrality--outburst of popular wrath against him--jefferson resigns from the cabinet--marshall supports washington--at the head of the military forces he suppresses the riot at smithfield and takes a french privateer--the republicans in richmond attack marshall savagely--marshall answers his assailants--they make insinuations against his character: the fairfax purchase, the story of marshall's heavy drinking--the republicans win on their opposition to neutrality--great britain becomes more hostile than ever--washington resolves to try for a treaty in order to prevent war--jay negotiates the famous compact bearing his name--terrific popular resentment follows: washington abused, hamilton stoned, jay burned in effigy, many of washington's friends desert him--toast drank in virginia "to the speedy death of general washington"--jefferson assails the treaty--hamilton writes "camillus"--marshall stands by washington--jefferson names him as the leading federalist in virginia. iv. washington's defender marshall becomes the chief defender of washington in virginia--the president urges him to accept the office of attorney-general--he declines--washington depends upon marshall's judgment in virginia politics--vicious opposition to the jay treaty in virginia--john thompson's brilliant speech expresses popular sentiment--he couples the jay treaty with neutrality: "a sullen neutrality between freemen and despots"--the federalists elect marshall to the legislature--washington is anxious over its proceedings-- carrington makes absurdly optimistic forecast--the republicans in the legislature attack the jay treaty--marshall defends it with great adroitness--must the new house of representatives be consulted about treaties?--carrington writes washington that marshall's argument was a demonstration--randolph reports to jefferson that marshall's speech was tricky and ineffectual-- marshall defeated--amazing attack on washington and stout defense of him led by marshall--washington's friends beaten-- legislature refuses to vote that washington has "wisdom"-- jefferson denounces marshall: "his lax, lounging manners and profound hypocrisy"--washington recalls monroe from france and tenders the french mission to marshall, who declines--the fauchet dispatch is intercepted and randolph is disgraced-- washington forces him to resign as secretary of state--the president considers marshall for the head of his cabinet-- the opposition to the jay treaty grows in intensity--marshall arranges a public meeting in richmond--the debate lasts all day--the reports as to the effect of his speeches contradictory--marshall describes situation--the republicans make charges and marshall makes counter-charges--the national federalist leaders depend on marshall--they commission him to sound henry on the presidency as the successor of washington-- washington's second administration closes--he is savagely abused by the republicans--the fight in the legislature over the address to him--marshall leads the administration forces and is beaten--the house of delegates refuse to vote that washington is wise, brave, or even patriotic--washington goes out of the presidency amid storms of popular hatred--the "aurora's" denunciation of him--his own description of the abuse: "indecent terms that could scarcely be applied to a nero, a defaulter, or a common pickpocket"--jefferson is now the popular hero--all this makes a deep and permanent impression on marshall. v. the man and the lawyer an old planter refuses to employ marshall as his lawyer because of his shabby and unimpressive appearance--he changes his mind after hearing marshall address the court--marshall is conscious of his superiority over other men--wirt describes marshall's physical appearance--he practices law as steadily as his political activities permit--he builds a fine house adjacent to those of his powerful brothers-in-law--richmond becomes a flourishing town--marshall is childishly negligent of his personal concerns: the beaumarchais mortgage; but he is extreme in his solicitude for the welfare of his relatives: the letter on the love-affair of his sister; and he is very careful of the business entrusted to him by others--he is an enthusiastic free mason and becomes grand master of that order in virginia--he has peculiar methods at the bar: cites few authorities, always closes in argument, and is notably honest with the court: "the law is correctly stated by opposing counsel"--gustavus schmidt describes marshall--he is employed in the historic case of ware _vs._ hylton--his argument in the lower court so satisfactory to his clients that they select him to conduct their case in the supreme court of the united states--marshall makes a tremendous and lasting impression by his effort in philadelphia--rufus king pays him high tribute--after twenty-four years william wirt remembers marshall's address and describes it--wirt advises his son-in-law to imitate marshall--francis walker gilmer writes, from personal observation, a brilliant and accurate analysis of marshall as lawyer and orator--the federalist leaders at the capital court marshall--he has business dealings with robert morris--the marshall syndicate purchases the fairfax estate-- marshall's brother marries hester morris--the old financier makes desperate efforts to raise money for the fairfax purchase--marshall compromises with the legislature of virginia--his brother finally negotiates a loan in antwerp on morris's real estate and pays half of the contract price-- robert morris becomes bankrupt and the burden of the fairfax debt falls on marshall--he is in desperate financial embarrassment--president adams asks him to go to france as a member of the mission to that country--the offer a "god-send" to marshall, who accepts it in order to save the fairfax estate. vi. envoy to france marshall starts for france--letters to his wife--is bored by the social life of philadelphia--his opinion of adams--the president's opinion of marshall--the "aurora's" sarcasm--the reason for sending the mission--monroe's conduct in paris--the republicans a french party--the french resent the jay treaty and retaliate by depredations on american commerce--pinckney, as monroe's successor, expelled from france--president adams's address to congress--marshall, pinckney, and gerry are sent to adjust differences between france and america--gerry's appointment is opposed by entire cabinet and all federalist leaders because of their distrust of him--adams cautions gerry and jefferson flatters him--marshall arrives at the hague-- conditions in france--marshall's letter to his wife--his long, careful and important letter to washington--his letter to lee from antwerp--marshall and pinckney arrive at paris--the city--the corruption of the government--gerry arrives--the envoys meet talleyrand--description of the foreign minister--his opinion of america and his estimate of the envoys--mysterious intimations. vii. facing talleyrand marshall urges formal representation of american grievances to french government--gerry opposes action--the intrigue begins--hottenguer appears--the directory must be "soothed" by money "placed at the disposal of m. talleyrand"--the french demands: "pay debts due from france to american citizens, pay for french spoliations of american commerce, and make a considerable loan and something for the pocket" (a bribe of two hundred and fifty thousand dollars)--marshall indignantly opposes and insists on formally presenting the american case--gerry will not agree--bellamy comes forward and proposes still harder terms: "_you must pay money, you must pay a great deal of money_"--the envoys consult--marshall and gerry disagree--hottenguer and bellamy breakfast with gerry--they again urge loan and bribe--marshall writes washington--his letter an able review of the state of the country--news of bonaparte's diplomatic success at campo formio reaches paris--talleyrand's agents again descend on the envoys and demand money--"no! not a sixpence"--marshall's bold but moderate statement--hauteval joins hottenguer and bellamy--gerry calls on talleyrand: is not received--talleyrand's agents hint at war--they threaten the envoys with "the french party in america"--marshall and pinckney declare it "degrading to carry on indirect intercourse"--marshall again insists on written statement to talleyrand--gerry again objects--marshall's letter to his wife--his letter in cipher to lee--bonaparte appears in paris--his consummate acting--the fête at the luxemburg to the conqueror--effect on marshall. viii. the american memorial madame de villette--her friendship with marshall--her proposals to pinckney--beaumarchais enters the plot--marshall his attorney in virginia--bellamy suggests an arrangement between marshall and beaumarchais--marshall rejects it--gerry asks talleyrand to dine with him--the dinner--hottenguer in talleyrand's presence again proposes the loan and bribe--marshall once more insists on written statement of the american case--gerry reluctantly consents--marshall writes the american memorial-- that great state paper--the french decrees against american commerce become harsher--gerry holds secret conferences with talleyrand--marshall rebukes gerry--talleyrand at last receives the envoys formally--the fruitless discussion--altercation between marshall and gerry--beaumarchais comes with alarming news--marshall again writes washington--washington's answer-- the french foreign minister answers marshall's memorial--he proposes to treat with gerry alone--marshall writes reply to talleyrand--beaumarchais makes final appeal to marshall-- marshall replies with spirit--he sails for america. ix. the triumphant return anxiety in america--jefferson is eager for news--skipwith writes jefferson from paris--dispatches of envoys, written by marshall, are received by the president--adams makes alarming speech to congress--the strength of the republican party increases-- republicans in house demand that dispatches be made public-- adams transmits them to congress--republicans are thrown into consternation and now oppose publication--federalist senate orders publication--effect on republicans in congress--effect on the country--outburst of patriotism: "hail, columbia!" is written--marshall arrives, unexpectedly, at new york--his dramatic welcome at philadelphia--the federalist banquet: millions "for defense but not one cent for tribute"--adams wishes to appoint marshall associate justice of the supreme court--he declines--he is enthusiastically received at richmond--marshall's speech--he is insulted at the theater in fredericksburg--congress takes decisive action: navy department is created and provisional army raised--washington accepts command--his opinions of the french--his letter to marshall's brother--jefferson attacks x. y. z. dispatches and defends talleyrand--alien and sedition laws are enacted--gerry's predicament in france--his return--marshall disputes gerry's statements--marshall's letter to his wife--he is hard pressed for money--compensation for services as envoy saves the fairfax estate--resolves to devote himself henceforth exclusively to his profession. x. candidate for congress plight of the federalists in richmond--they implore marshall to be their candidate for congress--he refuses--washington personally appeals to him--marshall finally yields--violence of the campaign--republicans viciously attack marshall--the alien and sedition laws the central issue--"freeholder's" questions to marshall--his answers--federalists disgusted with marshall--"the letters of curtius"--the kentucky and virginia resolutions--the philosophy of secession--madison writes address of majority of virginia legislature to their constituents--marshall writes address of the minority which federalists circulate as campaign document--republicans ridicule its length and verbosity-- federalists believe republicans determined to destroy the national government--campaign charges against marshall-- marshall's disgust with politics: "nothing more debases or pollutes the human mind"--despondent letter to his brother-- on the brink of defeat--patrick henry saves marshall--riotous scenes on election day--marshall wins by a small majority-- washington rejoices--federalist politicians not sure of marshall--jefferson irritated at marshall's election--marshall visits his father--jefferson thinks it a political journey: "the visit of apostle marshall to kentucky excites anxiety"-- naval war with france in progress--adams sends the second mission to france--anger of the federalists--republican rejoicing--marshall supports president's policy--adams pardons fries--federalists enraged, republicans jubilant-- state of parties when marshall takes his seat in congress. xi. independence in congress speaker sedgwick's estimate of marshall--cabot's opinion-- marshall a leader in congress from the first--prepares answer of house to president's speech--it satisfies nobody--wolcott describes marshall--presidential politics--marshall writes his brother analysis of situation--announces death of washington, presents resolutions, and addresses house: "first in war, first in peace and first in the hearts of his countrymen"--marshall's activity in the house--he clashes with john randolph of roanoke--debate on slavery and marshall's vote--he votes against his party on sedition law--opposes his party's favorite measure, the disputed elections bill--forces amendment and kills the bill--federalist resentment of his action: speaker sedgwick's comment on marshall--the celebrated case of jonathan robins--republicans make it principal ground of attack on administration--the livingston resolution--marshall's great speech on executive power--gallatin admits it to be "unanswerable"--it defeats the republicans--jefferson's faint praise--the "aurora's" amusing comment--marshall defends the army and the policy of preparing for war--his speech the ablest on the army bill--his letter to dabney describing conditions-- marshall helps draw the first bankruptcy law and, in the opinion of the federalists, spoils it--speaker sedgwick vividly portrays marshall as he appeared to the federalist politicians at the close of the session. xii. chief justice of the united states the shattering of adams's cabinet--marshall declines office of secretary of war--offered that of secretary of state--adams's difficult party situation--the feud with hamilton--marshall finally, and with reluctance, accepts portfolio of secretary of state--republican comment--federalist politicians approve: "marshall a state conservator"--adams leaves marshall in charge at washington--examples of his routine work--his retort to the british minister--his strong letter to great britain on the british debts--controversy with great britain over contraband, treatment of neutrals, and impressment--marshall's notable letter on these subjects--his harsh language to great britain-- federalist disintegration begins--republicans overwhelmingly victorious in marshall's home district--marshall's despondent letter to otis: "the tide of real americanism is on the ebb"-- federalist leaders quarrel; rank and file confused and angered--hamilton's faction plots against adams--adams's inept retaliation: hamilton and his friends "a british faction"-- republican strength increases--jefferson's platform--the second mission to france succeeds in negotiating a treaty-- chagrin of federalists and rejoicing of republicans--marshall dissatisfied but favors ratification--hamilton's amazing personal attack on adams--the federalists dumbfounded, the republicans in glee--the terrible campaign of --marshall writes the president's address to congress--the republicans carry the election by a narrow margin--tie between jefferson and burr--federalists in house determine to elect burr--hamilton's frantic efforts against burr: "the _catiline_ of america"-- hamilton appeals to marshall, who favors burr--marshall refuses to aid jefferson, but agrees to keep hands off--ellsworth resigns as chief justice--adams reappoints jay, who declines-- adams then appoints marshall, who, with hesitation, accepts-- the appointment unexpected and arouses no interest--marshall continues as secretary of state--the dramatic contest in the house over burr and jefferson--marshall accused of advising federalists that congress could provide for presidency by law in case of deadlock--federalists consider marshall for the presidency--hay assails marshall--burr refuses federalist proposals--the federalist bargain with jefferson--he is elected--the "midnight judges"--the power over the supreme court which marshall was to exercise totally unsuspected by anybody--failure of friend and foe to estimate properly his courage and determination. appendix i. list of cases ii. general marshall's answer to an address of the citizens of richmond, virginia iii. freeholder's questions to general marshall works cited in this volume illustrations john marshall as chief justice _colored frontispiece_ from the portrait by john wesley jarvis in the possession of mr. roland gray, of boston. it represents marshall as he was during his early years as chief justice and as he appeared when representative in congress and secretary of state. the jarvis portrait is by far the best likeness of marshall during this period of his life. john marshall from a painting by e. f. petticolas, presented by the artist to john marshall and now in the possession of mr. malcolm g. bruce, of south boston, va. john marshall from a painting by rembrandt peale in the rooms of the long island historical society. john marshall's house, richmond from a photograph taken especially for this book. the house was built by marshall between and . it was his second home in richmond and the one in which he lived for more than forty years. the large room where the famous "lawyers' dinners" were given from a photograph taken especially for this book. the woodwork of the room, which is somewhat indistinct in the reproduction, is exceedingly well done. william wirt from an engraving by a. b. walter, from a portrait by charles b. king, in "memoirs of william wirt," by john p. kennedy, published by lea & blanchard, philadelphia, . autograph from the chamberlain collection, boston public library. robert morris from an original painting by gilbert stuart through kind permission of the owner, c. f. m. stark, esq., of winchester, mass. autograph from the declaration of independence. facsimile of a page of james marshall's account with robert morris, his father-in-law from the original in the possession of james m. marshall, of front royal, virginia. this page shows £ sterling furnished by robert morris to the marshall brothers for the purchase of the fairfax estate. this documentary evidence of the source of the money with which the marshalls purchased this holding has not hitherto been known to exist. facsimile of the first page of a letter from john marshall to his wife, july , from the original in the possession of miss emily harvie, of richmond. the letter was written from philadelphia immediately after marshall's arrival at the capital when starting on his journey to france on the x. y. z. mission. it is characteristic of marshall in the fervid expressions of tender affection for his wife, whom he calls his "dearest life." it is also historically important as describing his first impression of president adams. facsimile of part of letter of july , , from john adams to elbridge gerry describing john marshall from the original in the adams manuscripts. president adams writes of marshall as he appeared to him just before he sailed for france. charles maurice de talleyrand-pÉrigord from an engraving by bocourt after a drawing by mullard, reproduced through the kindness of mr. charles e. goodspeed. this portrait represents talleyrand as he was some time after the x. y. z. mission. general charles cotesworth pinckney from an engraving by e. wellmore after the miniature by edward greene malbone. elbridge gerry from an engraving by j. b. longacre after a drawing made from life by vanderlyn in , when gerry was in paris. facsimile of part of a letter from john marshall to his brother, dated april , , referring to the virulence of the campaign in which marshall was a candidate for congress the word "faction" in this excerpt meant "party" in the vernacular of the period. statue of john marshall, by randolph rogers this is one of six statues at the base of the washington monument in richmond, va., the other figures being jefferson, henry, mason, nelson, and lewis. the washington monument was designed by thomas crawford, who died before completing the work, and was finished by rogers. from a photograph. statue of marshall, by w. w. story at the capitol, washington, d.c. from a photograph. list of abbreviated titles most frequently cited _all references here are to the list of authorities at the end of this volume._ _am. st. prs._ _see_ american state papers. beard: _econ. i. c._ _see_ beard, charles a. economic interpretation of the constitution of the united states. beard: _econ. o. j. d._ _see_ beard, charles a. economic origins of jeffersonian democracy. _cor. rev._: sparks. _see_ sparks, jared. correspondence of the revolution. _cunningham letters._ _see_ adams, john. correspondence with william cunningham. _letters_: ford. _see_ vans murray, william. letters to john quincy adams. edited by worthington chauncey ford. monroe's _writings_: hamilton. _see_ monroe, james. writings. edited by stanislaus murray hamilton. _old family letters._ _see_ adams, john. old family letters. edited by alexander biddle. _works_: adams. _see_ adams, john. works. edited by charles francis adams. _works_: ames. _see_ ames, fisher. works. edited by seth ames. _works_: ford. _see_ jefferson, thomas. works. federal edition. edited by paul leicester ford. _works_: hamilton. _see_ hamilton, alexander. works. edited by john c. hamilton. _works_: lodge. _see_ hamilton, alexander. works. federal edition. edited by henry cabot lodge. _writings_: conway. _see_ paine, thomas. writings. edited by moncure daniel conway. _writings_: ford. _see_ washington, george. writings. edited by worthington chauncey ford. _writings_: hunt. _see_ madison, james. writings. edited by gaillard hunt. _writings, j. q. a._: ford. _see_ adams, john quincy. writings. edited by worthington chauncey ford. _writings_: smyth. _see_ franklin, benjamin. writings. edited by albert henry smyth. _writings_: sparks. _see_ washington, george. writings. edited by jared sparks. the life of john marshall the life of john marshall chapter i influence of the french revolution on america were there but an adam and an eve left in every country, and left free, it would be better than it now is. (jefferson.) that malignant philosophy which can coolly and deliberately pursue, through oceans of blood, abstract systems for the attainment of some fancied untried good. (marshall.) the only genuine liberty consists in a mean equally distant from the despotism of an individual and a million. ("publicola": j. q. adams, .) the decision of the french king, louis xvi, on the advice of his ministers, to weaken great britain by aiding the americans in their war for independence, while it accomplished its purpose, was fatal to himself and to the monarchy of france. as a result, great britain lost america, but louis lost his head. had not the bourbon government sent troops, fleets, munitions, and money to the support of the failing and desperate american fortunes, it is probable that washington would not have prevailed; and the fires of the french holocaust which flamed throughout the world surely would not have been lit so soon. the success of the american patriots in their armed resistance to the rule of george iii, although brought about by the aid of the french crown, was, nevertheless, the shining and dramatic example which frenchmen imitated in beginning that vast and elemental upheaval called the french revolution.[ ] thus the unnatural alliance in between french autocracy and american liberty was one of the great and decisive events of human history. in the same year, , that the american republic began its career under the forms of a national government, the curtain rose in france on that tremendous drama which will forever engage the interest of mankind. and just as the american revolution vitally influenced french opinion, so the french revolution profoundly affected american thought; and, definitely, helped to shape those contending forces in american life that are still waging their conflict. while the economic issue, so sharp in the adoption of the constitution, became still keener, as will appear, after the national government was established, it was given a higher temper in the forge of the french revolution. american history, especially of the period now under consideration, can be read correctly only by the lights that shine from that titanic smithy; can be understood only by considering the effect upon the people, the thinkers, and the statesmen of america, of the deeds done and words spoken in france during those inspiring if monstrous years. the naturally conservative or radical temperaments of men in america were hardened by every episode of the french convulsion. the events in france, at this time, operated upon men like hamilton on the one hand, and jefferson on the other hand, in a fashion as deep and lasting as it was antagonistic and antipodal; and the intellectual and moral phenomena, manifested in picturesque guise among the people in america, impressed those who already were, and those who were to become, the leaders of american opinion, as much as the events of the gallic cataclysm itself. george washington at the summit of his fame, and john marshall just beginning his ascent, were alike confirmed in that non-popular tendency of thought and feeling which both avowed in the dark years between our war for independence and the adoption of our constitution.[ ] in reviewing all the situations, not otherwise to be fully understood, that arose from the time washington became president until marshall took his seat as chief justice, we must have always before our eyes the extraordinary scenes and consider the delirious emotions which the french revolution produced in america. it must be constantly borne in mind that americans of the period now under discussion did not and could not look upon it with present-day knowledge, perspective, or calmness. what is here set down is, therefore, an attempt to portray the effects of that volcanic eruption of human forces upon the minds and hearts of those who witnessed, from across the ocean, its flames mounting to the heavens and its lava pouring over the whole earth. unless this portrayal is given, a blank must be left in a recital of the development of american radical and conservative sentiment and of the formation of the first of american political parties. certainly for the purposes of the present work, an outline, at least, of the effect of the french revolution on american thought and feeling is indispensable. just as the careers of marshall and jefferson are inseparably intertwined, and as neither can be fully understood without considering the other, so the american by-products of the french revolution must be examined if we would comprehend either of these great protagonists of hostile theories of democratic government. at first everybody in america heartily approved the french reform movement. marshall describes for us this unanimous approbation. "a great revolution had commenced in that country," he writes, "the first stage of which was completed by limiting the powers of the monarch, and by the establishment of a popular assembly. in no part of the globe was this revolution hailed with more joy than in america. the influence it would have on the affairs of the world was not then distinctly foreseen; and the philanthropist, without becoming a political partisan, rejoiced in the event. on this subject, therefore, but one sentiment existed."[ ] jefferson had written from paris, a short time before leaving for america: "a complete revolution in this [french] government, has been effected merely by the force of public opinion; ... and this revolution has not cost a single life."[ ] so little did his glowing mind then understand the forces which he had helped set in motion. a little later he advises madison of the danger threatening the reformed french government, but adds, reassuringly, that though "the lees ... of the patriotic party [the french radical party] of wicked principles & desperate fortunes" led by mirabeau who "is the chief ... may produce a temporary confusion ... they cannot have success ultimately. the king, the mass of the substantial people of the whole country, the army, and the influential part of the clergy, form a firm phalanx which must prevail."[ ] so, in the beginning, all american newspapers, now more numerous, were exultant. "liberty will have another feather in her cap.... the ensuing winter [ ] will be the commencement of a golden age,"[ ] was the glowing prophecy of an enthusiastic boston journal. those two sentences of the new england editor accurately stated the expectation and belief of all america. but in france itself one american had grave misgivings as to the outcome. "the materials for a revolution in this country are very indifferent. everybody agrees that there is an utter prostration of morals; but this general position can never convey to an american mind the degree of depravity.... a hundred thousand examples are required to show the extreme rottenness.... the virtuous ... stand forward from a background deeply and darkly shaded.... from such crumbling matter ... the great edifice of freedom is to be erected here [in france].... [there is] a perfect indifference to the violation of engagements.... inconstancy is mingled in the blood, marrow, and very essence of this people.... consistency is a phenomenon.... the great mass of the common people have ... no morals but their interest. these are the creatures who, led by drunken curates, are now in the high road _à la liberté_."[ ] such was the report sent to washington by gouverneur morris, the first american minister to france under the constitution. three months later morris, writing officially, declares that "this country is ... as near to anarchy as society can approach without dissolution."[ ] and yet, a year earlier, lafayette had lamented the french public's indifference to much needed reforms; "the people ... have been so dull that it has made me sick" was lafayette's doleful account of popular enthusiasm for liberty in the france of .[ ] gouverneur morris wrote robert morris that a french owner of a quarry demanded damages because so many bodies had been dumped into the quarry that they "choked it up so that he could not get men to work at it." these victims, declared the american minister, had been "the best people," killed "without form of trial, and their bodies thrown like dead dogs into the first hole that offered."[ ] gouverneur morris's diary abounds in such entries as "[sept. , ] the murder of the priests, ... murder of prisoners,... [sept. ] the murdering continues all day.... [sept. th].... and still the murders continue."[ ] john marshall was now the attorney of robert morris; was closely connected with him in business transactions; and, as will appear, was soon to become his relative by the marriage of marshall's brother to the daughter of the philadelphia financier. gouverneur morris, while not related to robert morris, was "entirely devoted" to and closely associated with him in business; and both were in perfect agreement of opinions.[ ] thus the reports of the scarlet and revolting phases of the french revolution that came to the virginia lawyer were carried through channels peculiarly personal and intimate. they came, too, from an observer who was thoroughly aristocratic in temperament and conviction.[ ] little of appreciation or understanding of the basic causes and high purposes of the french revolution appears in gouverneur morris's accounts and comments, while he portrays the horrible in unrelieved ghastliness.[ ] such, then, were the direct and first-hand accounts that marshall received; and the impression made upon him was correspondingly dark, and as lasting as it was somber. of this, marshall himself leaves us in no doubt. writing more than a decade later he gives his estimate of gouverneur morris and of his accounts of the french revolution. "the private correspondence of mr. morris with the president [and, of course, much more so with robert morris] exhibits a faithful picture, drawn by the hand of a master, of the shifting revolutionary scenes which with unparalleled rapidity succeeded each other in paris. with the eye of an intelligent, and of an unimpassioned observer, he marked all passing events, and communicated them with fidelity. he did not mistake despotism for freedom, because it was sanguinary, because it was exercised by those who denominated themselves the people, or because it assumed the name of liberty. sincerely wishing happiness and a really free government to france, he could not be blind to the obvious truth that the road to those blessings had been mistaken."[ ] everybody in america echoed the shouts of the parisian populace when the bastille fell. was it not the prison where kings thrust their subjects to perish of starvation and torture?[ ] lafayette, "as a missionary of liberty to its patriarch," hastened to present washington with "the main key of the fortress of despotism."[ ] washington responded that he accepted the key of the bastille as "a token of the victory gained by liberty."[ ] thomas paine wrote of his delight at having been chosen by lafayette to "convey ... the first ripe fruits of american principles, transplanted into europe, to his master and patron."[ ] mutual congratulations were carried back and forth by every ship. soon the mob in paris took more sanguinary action and blood flowed more freely, but not in sufficient quantity to quench american enthusiasm for the cause of liberty in france. we had had plenty of mobs ourselves and much crimson experience. had not mobs been the precursors of our own revolution? the next developments of the french uprising and the appearance of the jacobin clubs, however, alarmed some and gave pause to all of the cautious friends of freedom in america and other countries. edmund burke hysterically sounded the alarm. on account of his championship of the cause of american independence, burke had enjoyed much credit with all americans who had heard of him. "in the last age," exclaimed burke in parliament, february , , "we were in danger of being entangled by the example of france in the net of a relentless despotism.... our present danger from the example of a people whose character knows no medium, is, with regard to government, a danger from anarchy; a danger of being led, through an admiration of successful fraud and violence, to an imitation of the excesses of an irrational, unprincipled, proscribing, confiscating, plundering, ferocious, bloody, and tyrannical democracy."[ ] of the french declaration of human rights burke declared: "they made and recorded a sort of _institute_ and _digest_ of anarchy, called the rights of man, in such a pedantic abuse of elementary principles as would have disgraced boys at school.... they systematically destroyed every hold of authority by opinion, religious or civil, on the minds of the people.[ ]... on the scheme of this barbarous philosophy, which is the offspring of cold hearts and muddy understandings," exclaimed the great english liberal, "laws are to be supported only by their own terrours.... in the groves of _their_ academy, at the end of every vista, you see nothing but the gallows."[ ] burke's extravagant rhetoric, although reprinted in america, was little heeded. it would have been better if his pen had remained idle. for burke's wild language, not yet justified by the orgy of blood in which french liberty was, later, to be baptized, caused a voice to speak to which america did listen, a page to be written that america did read. thomas paine, whose "common sense" had made his name better known to all people in the united states than that of any other man of his time except washington, franklin, jefferson, and henry, was then in france. this stormy petrel of revolution seems always to have been drawn by instinct to every part of the human ocean where hurricanes were brooding.[ ] paine answered burke with that ferocious indictment of monarchy entitled "the rights of man," in which he went as far to one extreme as the english political philosopher had gone to the other; for while paine annihilated burke's brahminic laudation of rank, title, and custom, he also penned a doctrine of paralysis to all government. as was the case with his "common sense," paine's "rights of man" abounded in attractive epigrams and striking sentences which quickly caught the popular ear and were easily retained by the shallowest memory. "the cause of the french people is that of ... the whole world," declared paine in the preface of his flaming essay;[ ] and then, the sparks beginning to fly from his pen, he wrote: "great part of that order which reigns among mankind is not the effect of government.... it existed prior to government, and would exist if the formality of government was abolished.... the instant formal government is abolished," said he, "society begins to act; ... and common interest produces common security." and again: "the more perfect civilization is, the less occasion has it for government.... it is but few general laws that civilised life requires." holding up our own struggle for liberty as an illustration, paine declared: "the american revolution ... laid open the imposition of governments"; and, using our newly formed and untried national government as an example, he asserted with grotesque inaccuracy: "in america ... all the parts are brought into cordial unison. there the poor are not oppressed, the rich are not privileged.... their taxes are few, because their government is just."[ ] proceeding thence to his assault upon all other established governments, especially that of england, the great iconoclast exclaimed: "it is impossible that such governments as have hitherto [ ] existed in the world, could have commenced by any other means than a violation of every principle sacred and moral." striking at the foundations of all permanent authority, paine declared that "every age and generation must be ... free to act for itself _in all cases_.... the vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies." the people of yesterday have "no right ... to bind or to control ... the people of the present day ... _in any shape whatever_.... every generation is, and must be, competent to all the purposes which its occasions require."[ ] so wrote the incomparable pamphleteer of radicalism. paine's essay, issued in two parts, was a torch successively applied to the inflammable emotions of the american masses. most newspapers printed in each issue short and appealing excerpts from it. for example, the following sentence from paine's "rights of man" was reproduced in the "columbian centinel" of boston on june , : "can we possibly suppose that if government had originated in right principles and had not an interest in pursuing a wrong one, that the world could have been in the wretched and quarrelsome condition it is?" such quotations from paine appeared in all radical and in some conservative american publications; and they were repeated from mouth to mouth until even the backwoodsmen knew of them--and believed them. "our people ... love what you write and read it with delight" ran the message which jefferson sent across the ocean to paine. "the printers," continued jefferson, "season every newspaper with extracts from your last, as they did before from your first part of the _rights of man_. they have both served here to separate the wheat from the chaff.... would you believe it possible that in this country there should be high & important characters[ ] who need your lessons in republicanism & who do not heed them. it is but too true that we have a sect preaching up & pouting after an english constitution of king, lords, & commons, & whose heads are itching for crowns, coronets & mitres.... "go on then," jefferson urged paine, "in doing with your pen what in other times was done with the sword, ... and be assured that it has not a more sincere votary nor you a more ardent well-wisher than ... tho^s. jefferson."[ ] and the wheat was being separated from the chaff, as jefferson declared. shocked not more by the increasing violence in france than by the principles which paine announced, men of moderate mind and conservative temperament in america came to have misgivings about the french revolution, and began to speak out against its doings and its doctrines. a series of closely reasoned and well-written articles were printed in the "columbian centinel" of boston in the summer of , over the _nom de guerre_ "publicola"; and these were widely copied. they were ascribed to the pen of john adams, but were the work of his brilliant son.[ ] the american edition of paine's "rights of man" was headed by a letter from secretary of state jefferson to the printer, stating his pleasure that the essay was to be printed in this country and "that something is at length to be publickly said against the political heresies which have sprung up among us."[ ] publicola called attention to this and thus, more conspicuously, displayed jefferson as an advocate of paine's doctrines.[ ] all americans had "seen with pleasure the temples of despotism levelled with the ground," wrote the keen young boston law student.[ ] there was "but one sentiment...--that of exultation." but what did jefferson mean by "heresies"? asked publicola. was paine's pamphlet "the canonical book of scripture?" if so, what were its doctrines? "that which a whole nation chooses to do, it has a right to do" was one of them. was that "principle" sound? no! avowed publicola, for "the eternal and immutable laws of justice and of morality are paramount to all human legislation." a nation might have the power but never the right to violate these. even majorities have no right to do as they please; if so, what security has the individual citizen? under the unrestrained rule of the majority "the principles of liberty must still be the sport of arbitrary power, and the hideous form of despotism must lay aside the diadem and the scepter, only to assume the party-colored garments of democracy." "the only genuine liberty consists in a mean equally distant from the despotism of an individual and of a million," asserted publicola. "mr. paine seems to think it as easy for a nation to change its government as for a man to change his coat." but "the extreme difficulty which impeded the progress of its [the american constitution's] adoption ... exhibits the fullest evidence of what a more than herculean task it is to unite the opinions of a free people on any system of government whatever." the "mob" which paine exalted as the common people, but which publicola thought was really only the rabble of the cities, "can be brought to act in concert" only by "a frantic enthusiasm and ungovernable fury; their profound ignorance and deplorable credulity make them proper tools for any man who can inflame their passions; ... and," warned publicola, "as they have nothing to lose by the total dissolution of civil society, their rage may be easily directed against any victim which may be pointed out to them.... to set in motion this inert mass, the eccentric vivacity of a madman is infinitely better calculated than the sober coolness of phlegmatic reason." "where," asked publicola, "is the power that should control them [congress]?" if they violate the letter of the constitution. replying to his own question, he asserted that the real check on congress "is the spirit of the people."[ ] john marshall had said the same thing in the virginia constitutional convention; but even at that early period the richmond attorney went further and flatly declared that the temporary "spirit of the people" was not infallible and that the supreme court could and would declare void an unconstitutional act of congress--a truth which he was, unguessed at that time by himself or anybody else, to announce with conclusive power within a few years and at an hour when dissolution confronted the forming nation. such is a rapid _précis_ of the conservative essays written by the younger adams. taken together, they were a rallying cry to those who dared to brave the rising hurricane of american sympathy with the french revolution; but they also strengthened the force of that growing storm. multitudes of writers attacked publicola as the advocate of "aristocracy" and "monarchy." "the papers under the signature of publicola have called forth a torrent of abuse," declared the final essay of the series. brown's "federal gazette" of philadelphia branded publicola's doctrines as "abominable heresies"; and hoped that they would "not procure many proselytes either to _monarchy_ or _aristocracy_."[ ] the "independent chronicle" of boston asserted that publicola was trying to build up a "system of monarchy and aristocracy ... on the ruins both of the reputation and liberties of the people."[ ] madison reported to jefferson that because of john adams's reputed authorship of these unpopular letters, the supporters of the massachusetts statesman had become "perfectly insignificant in ... number" and that "in boston he is ... distinguished for his unpopularity."[ ] in such fashion the controversy began in america over the french revolution. but whatever the misgivings of the conservative, whatever the alarm of the timid, the overwhelming majority of americans were for the french revolution and its doctrines;[ ] and men of the highest ability and station gave dignity to the voice of the people. in most parts of the country politicians who sought election to public office conformed, as usual, to the popular view. it would appear that the prevailing sentiment was influential even with so strong a conservative and extreme a nationalist as madison, in bringing about his amazing reversal of views which occurred soon after the constitution was adopted.[ ] but those who, like marshall, were not shaken, were made firmer in their opinions by the very strength of the ideas thus making headway among the masses. an incident of the french revolution almost within sight of the american coast gave to the dogma of equality a new and intimate meaning in the eyes of those who had begun to look with disfavor upon the results of gallic radical thought. marshall and jefferson best set forth the opposite impressions made by this dramatic event. "early and bitter fruits of that malignant philosophy," writes marshall, "which ... can coolly and deliberately pursue, through oceans of blood, abstract systems for the attainment of some fancied untried good, were gathered in the french west indies.... the revolutionists of france formed the mad and wicked project of spreading their doctrines of equality among persons [negroes and white people] between whom distinctions and prejudices exist to be subdued only by the grave. the rage excited by the pursuit of this visionary and baneful theory, after many threatening symptoms, burst forth on the d day of august , with a fury alike destructive and general. "in one night, a preconcerted insurrection of the blacks took place throughout the colony of st. domingo; and the white inhabitants of the country, while sleeping in their beds, were involved in one indiscriminate massacre, from which neither age nor sex could afford an exemption. only a few females, reserved for a fate more cruel than death, were intentionally spared; and not many were fortunate enough to escape into the fortified cities. the insurgents then assembled in vast numbers, and a bloody war commenced between them and the whites inhabiting the towns."[ ] after the african disciples of french liberty had overthrown white supremacy in st. domingo, jefferson wrote his daughter that he had been informed "that the patriotic party [st. domingo revolutionists] had taken possession of aristocrats & monocrats, had sent of them to france, & were sending here.... i wish," avowed jefferson, in this intimate family letter, "we could distribute our [white french exiles] among the indians, who would teach them lessons of liberty & equality."[ ] events in france marched swiftly from one bloody climax to another still more scarlet. all were faithfully reflected in the views of the people of the united states. john marshall records for us "the fervour of democracy" as it then appeared in our infant republic. he repeats that, at first, every american wished success to the french reformers. but the later steps of the movement "impaired this ... unanimity of opinion.... a few who had thought deeply on the science of government ... believed that ... the influence of the galleries over the legislature, and of mobs over the executive; ... the tumultuous assemblages of the people and their licentious excesses ... did not appear to be the symptoms of a healthy constitution, or of genuine freedom.... they doubted, and they feared for the future." of the body of american public opinion, however, marshall chronicles that: "in total opposition to this sentiment was that of the public. there seems to be something infectious in the example of a powerful and enlightened nation verging towards democracy, which imposes on the human mind, and leads human reason in fetters.... long settled opinions yield to the overwhelming weight of such dazzling authority. it wears the semblance of being the sense of mankind, breaking loose from the shackles which had been imposed by artifice, and asserting the freedom, and the dignity, of his nature." american conservative writers, says marshall, "were branded as the advocates of royalty, and of aristocracy. to question the duration of the present order of things [in france] was thought to evidence an attachment to unlimited monarchy, or a blind prejudice in favour of british institutions.... the war in which the several potentates of europe were engaged against france, although in almost every instance declared by that power, was pronounced to be a war for the extirpation of human liberty, and for the banishment of free government from the face of the earth. the preservation of the constitution of the united states was supposed to depend on its issue; and the coalition against france was treated as a coalition against america also."[ ] marshall states, more clearly, perhaps, than any one else, american conservative opinion of the time: "the circumstances under which the abolition of royalty was declared, the massacres which preceded it, the scenes of turbulence and violence which were acted in every part of the nation, appeared to them [american conservatives] to present an awful and doubtful state of things.... the idea that a republic was to be introduced and supported by force, was, to them, a paradox in politics." thus it was, he declares, that "the french revolution will be found to have had great influence on the strength of parties, and on the subsequent political transactions of the united states."[ ] as the french storm increased, its winds blew ever stronger over the responsive waters of american opinion. jefferson, that accurate barometer of public weather, thus registers the popular feeling: "the sensations it [the french revolution] has produced here, and the indications of them in the public papers, have shown that the form our own government was to take depended much more on the events of france than anybody had before imagined."[ ] thus both marshall and jefferson bear testimony as to the determining effect produced in america by the violent change of systems in france. william short, whom jefferson had taken to france as his secretary, when he was the american minister to france, and who, when jefferson returned to the united states, remained as _chargé d'affaires_,[ ] had written both officially and privately of what was going on in france and of the increasing dominance of the jacobin clubs.[ ] perhaps no more trustworthy statement exists of the prevailing american view of the french cataclysm than that given in jefferson's fatherly letter to his protégé:-- "the tone of your letters had for some time given me pain," wrote jefferson, "on account of the extreme warmth with which they censured the proceedings of the jacobins of france.[ ]... many guilty persons [aristocrats] fell without the forms of trial, and with them some innocent:... it was necessary to use the arm of the people, a machine not quite so blind as balls and bombs, but blind to a certain degree.... "the liberty of the whole earth," continued jefferson, "was depending on the issue of the contest, and was ever such a prize won with so little innocent blood? my own affections have been deeply wounded by some of the martyrs to this cause, but rather than it should have failed, i would have seen half the earth desolated. "were there but an adam & an eve left in every country, & left free, it would be better than as it now is," declared jefferson; and "my sentiments ... are really those of in an hundred of our citizens," was that careful political observer's estimate of american public opinion. "your temper of mind," jefferson cautions short, "would be extremely disrelished if known to your countrymen. "there are in the u.s. some characters of opposite principles.... excepting them, this country is entirely republican, friends to the constitution.... the little party above mentioned have espoused it only as a stepping stone to monarchy.... the successes of republicanism in france have given the coup de grace to their prospects, and i hope to their projects. "i have developed to you faithfully the sentiments of your country," jefferson admonishes short, "that you may govern yourself accordingly."[ ] jefferson's count of the public pulse was accurate. "the people of this country [virginia] ... are unanimous & explicit in their sympathy with the revolution" was the weather-wise madison's report.[ ] and the fever was almost as high in other states. when, after many executions of persons who had been "denounced" on mere suspicion of unfriendliness to the new order of things, the neck of louis xvi was finally laid beneath the knife of the guillotine and the royal head rolled into the executioner's basket, even thomas paine was shocked. in a judicious letter to danton he said:-- "i now despair of seeing the great object of european liberty accomplished" because of "the tumultuous misconduct" of "the present revolution" which "injure[s its] character ... and discourage[s] the progress of liberty all over the world.... there ought to be some regulation with respect to the spirit of denunciation that now prevails."[ ] so it was that thomas paine, in france, came to speak privately the language which, in america, at that very hour, was considered by his disciples to be the speech of "aristocracy," "monarchy," and "despotism"; for the red fountains which drenched the fires of even thomas paine's enthusiasm did not extinguish the flames his burning words had lighted among the people of the united states. indeed paine, himself, was attacked for regretting the execution of the king.[ ] three months after the execution of the french king, the new minister of the french republic, "citizen" genêt, arrived upon our shores. he landed, not at philadelphia, then our seat of government, but at charleston, south carolina. the youthful[ ] representative of revolutionary france was received by public officials with obsequious flattery and by the populace with a frenzy of enthusiasm almost indescribable in its intensity. he acted on the welcome. he fitted out privateers, engaged seamen, issued letters of marque and reprisal, administered to american citizens oaths of "allegiance" to the authority then reigning in paris. all this was done long before he presented his credentials to the american government. his progress to our capital was an unbroken festival of triumph. washington's dignified restraint was interpreted as hostility, not only to genêt, but also to "liberty." but if washington's heart was ice, the people's heart was fire. "we expect mr. genest here within a few days," wrote jefferson, just previous to the appearance of the french minister in philadelphia and before our ignored and offended president had even an opportunity to receive him. "it seems," jefferson continued, "as if his arrival would furnish occasion for the _people_ to testify their affections without respect to the cold caution of their government."[ ] again jefferson measured popular sentiment accurately. genêt was made an idol by the people. banquets were given in his honor and extravagant toasts were drunk to the republic and the guillotine. showers of fiery "poems" filled the literary air.[ ] "what hugging and tugging! what addressing and caressing! what mountebanking and chanting! with liberty caps and other wretched trumpery of _sans culotte_ foolery!" exclaimed a disgusted conservative.[ ] while all this was going on in america, robespierre, as the incarnation of liberty, equality, and fraternity in france, achieved the summit of power and "the terror" reached high tide. marie antoinette met the fate of her royal husband, and the executioners, overworked, could not satisfy the lust of the parisian populace for human life. all this, however, did not extinguish american enthusiasm for french liberty. responding to the wishes of their subscribers, who at that period were the only support of the press, the republican newspapers suppressed such atrocities as they could, but when concealment was impossible, they defended the deeds they chronicled.[ ] it was a losing game to do otherwise, as one of the few journalistic supporters of the american government discovered to his sorrow. fenno, the editor of the "gazette of the united states," found opposition to french revolutionary ideas, in addition to his support of hamilton's popularly detested financial measures,[ ] too much for him. the latter was load enough; but the former was the straw that broke the conservative editor's back. "i am ... incapacitate[d] ... from printing another paper without the aid of a considerable loan," wrote the bankrupt newspaper opponent of french doctrines and advocate of washington's administration. "since the th september, [ ] i have rec'd only - / dollars," fenno lamented. "four years & an half of my life is gone for nothing; & worse (for i have a debt of dollars on my shoulders), if at this crisis the hand of benevolence & _patriotism_ is not extended."[ ] forgotten by the majority of americans was the assistance which the demolished french monarchy and the decapitated french king had given the american army when, but for that assistance, our cause had been lost. the effigy of louis xvi was guillotined by the people, many times every day in philadelphia, on the same spot where, ten years before, as a monument of their gratitude, these same patriots had erected a triumphal arch, decorated with the royal lilies of france bearing the motto, "they exceed in glory," surmounted by a bust of louis inscribed, "his merit makes us remember him."[ ] at a dinner in philadelphia upon the anniversary of the french king's execution, the dead monarch was represented by a roasted pig. its head was cut off at the table, and each guest, donning the liberty cap, shouted "tyrant" as with his knife he chopped the sundered head of the dead swine.[ ] the news of the beheading of louis's royal consort met with a like reception. "i have heard more than one young woman under the age of twenty declare," testifies cobbett, "that they would willingly have dipped their hands in the blood of the queen of france."[ ] but if the host of american radicals whom jefferson led and whose spirit he so truly interpreted were forgetful of the practical friendship of french royalty in our hour of need, american conservatives, among whom marshall was developing leadership, were also unmindful of the dark crimes against the people which, at an earlier period, had stained the monarchy of france and gradually cast up the account that brought on the inevitable settlement of the revolution. the streams of blood that flowed were waters of lethe to both sides. yet to both they were draughts which produced in one an obsession of reckless unrestraint and in the other a terror of popular rule no less exaggerated.[ ] of the latter class, marshall was, by far, the most moderate and balanced, although the tragic aspect of the convulsion in which french liberty was born, came to him in an especially direct fashion, as we have seen from the morris correspondence already cited. another similar influence on marshall was the case of lafayette. the american partisans of the french revolution accused this man, who had fought for us in our war for independence, of deserting the cause of liberty because he had striven to hold the gallic uprising within orderly bounds. when, for this, he had been driven from his native land and thrown into a foreign dungeon, freneau thus sang the conviction of the american majority:-- "here, bold in arms, and firm in heart, he help'd to gain our cause, yet could not from a tyrant part, but, turn'd to embrace his laws!"[ ] lafayette's expulsion by his fellow republicans and his imprisonment by the allied monarchs, was brought home to john marshall in a very direct and human fashion. his brother, james m. marshall, was sent by washington[ ] as his personal representative, to plead unofficially for lafayette's release. marshall tells us of the strong and tender personal friendship between washington and lafayette and of the former's anxiety for the latter. but, writes marshall: "the extreme jealousy with which the persons who administered the government of france, as well as a large party in america, watched his [washington's] deportment towards all those whom the ferocious despotism of the jacobins had exiled from their country" rendered "a formal interposition in favour of the virtuous and unfortunate victim [lafayette] of their furious passions ... unavailing." washington instructed our ministers to do all they could "unofficially" to help lafayette, says marshall; and "a confidential person [marshall's brother james] had been sent to berlin to solicit his discharge: but before this messenger had reached his destination, the king of prussia had delivered over his illustrious prisoner to the emperor of germany."[ ] washington tried "to obtain the powerful mediation of britain" and hoped "that the cabinet of st. james would take an interest in the case; but this hope was soon dissipated." great britain would do nothing to secure from her allies lafayette's release.[ ] thus marshall, in an uncommonly personal way, was brought face to face with what appeared to him to be the injustice of the french revolutionists. lafayette, under whom john marshall had served at brandywine and monmouth; lafayette, leader of the movement in france for a free government like our own; lafayette, hated by kings and aristocrats because he loved genuine liberty, and yet exiled from his own country by his own countrymen for the same reason[ ]--this picture, which was the one marshall saw, influenced him profoundly and permanently. humor as well as horror contributed to the repugnance which marshall and men of his type felt ever more strongly for what they considered to be mere popular caprice. the american passion for equality had its comic side. the public hatred of all rank did not stop with french royalty and nobility. because of his impassioned plea in parliament for the american cause, a statue of lord chatham had been erected at charleston, south carolina; the people now suspended it by the neck in the air until the sculptured head was severed from the body. but chatham was dead and knew only from the spirit world of this recognition of his bold words in behalf of the american people in their hour of trial and of need. in virginia the statue of lord botetourt was beheaded.[ ] this nobleman was also long since deceased, guilty of no fault but an effort to help the colonists, more earnest than some other royal governors had displayed. still, in life, he had been called a "lord"; so off with the head of his statue! in the cities, streets were renamed. "royal exchange alley" in boston became "equality lane"; and "liberty stump" was the name now given to the base of a tree that formerly had been called "royal." in new york, "_queen street_ became _pearl street_; and _king street_, liberty street."[ ] the liberty cap was the popular headgear and everybody wore the french cockade. even the children, thus decorated, marched in processions,[ ] singing, in a mixture of french and english words, the meaning of which they did not in the least understand, the glories of "liberté, égalité, fraternité." at a town meeting in boston resolutions asking that a city charter be granted were denounced as an effort to "destroy the liberties of the people; ... a link in the chain of aristocratic influence."[ ] titles were the especial aversion of the masses. even before the formation of our government, the people had shown their distaste for all formalities, and especially for terms denoting official rank; and, after the constitution was adopted, one of the first things congress did was to decide against any form of address to the president. adams and lee had favored some kind of respectful designation of public officials. this all-important subject had attracted the serious thought of the people more than had the form of government, foreign policy, or even taxes. scarcely had washington taken his oath of office when david stuart warned him that "nothing could equal the ferment and disquietude occasioned by the proposition respecting titles. as it is believed to have originated from mr. adams and mr. lee, they are not only unpopular to an extreme, but highly odious.... it has given me much pleasure to hear every part of your conduct spoken of with high approbation, and particularly your dispensing with ceremony, occasionally walking the streets; while adams is never seen but in his carriage and six. as trivial as this may appear," writes stuart, "it appears to be more captivating to the generality, than matters of more importance. indeed, i believe the great herd of mankind form their judgments of characters, more from such slight occurrences, than those of greater magnitude."[ ] this early hostility to ostentation and rank now broke forth in rabid virulence. in the opinion of the people, as influenced by the french revolution, a governor or president ought not to be referred to as "his excellency"; nor a minister of the gospel as "reverend." even "sir" or "esquire" were, plainly, "monarchical." the title "honorable" or "his honor," when applied to any official, even a judge, was base pandering to aristocracy. "mr." and "mrs." were heretical to the new religion of equality. nothing but "citizen"[ ] would do--citizen judge, citizen governor, citizen clergyman, citizen colonel, major, or general, citizen baker, shoemaker, banker, merchant, and farmer,--citizen everybody. to address the master of ceremonies at a dinner or banquet or other public gathering as "mr. chairman" or "mr. toastmaster" was aristocratic: only "citizen chairman" or "citizen toastmaster" was the true speech of genuine liberty.[ ] and the name of the _greek_ letter college fraternity, phi beta kappa, was the trick of kings to ensnare our unsuspecting youth. even "[greek: ph.b.k.]" was declared to be "an infringement of the natural rights of society." a college fraternity was destructive of the spirit of equality in american colleges.[ ] "_lèse-républicanisme_" was the term applied to good manners and politeness.[ ] such were the surface and harmless evidences of the effect of the french revolution on the great mass of american opinion. but a serious and practical result developed. starting with the mother organization at philadelphia, secret societies sprang up all over the union in imitation of the jacobin clubs of france. each society had its corresponding committee; and thus these organizations were welded into an unbroken chain. their avowed purpose was to cherish the principles of human freedom and to spread the doctrine of true republicanism. but they soon became practical political agencies; and then, like their french prototype, the sowers of disorder and the instigators of insurrection.[ ] the practical activities of these organizations aroused, at last, the open wrath of washington. they "are spreading mischief far and wide," he wrote;[ ] and he declared to randolph that "if these self-created societies cannot be discountenanced, they will destroy the government of this country."[ ] conservative apprehensions were thus voiced by george cabot: "we have seen ... the ... representatives of the people butchered, and a band of relentless murderers ruling in their stead with rods of iron. will not this, or something like it, be the wretched fate of our country?... is not this hostility and distrust [to just opinions and right sentiments] chiefly produced by the slanders and falsehoods which the anarchists incessantly inculcate?"[ ] young men like john quincy adams of massachusetts and john marshall of virginia thought that "the rabble that followed on the heels of jack cade could not have devised greater absurdities than" the french revolution had inspired in america;[ ] but they were greatly outnumbered by those for whom jefferson spoke when he said that "i feel that the permanence of our own [government] leans" on the success of the french revolution.[ ] the american democratic societies, like their french originals, declared that theirs was the voice of "the people," and popular clamor justified the claim.[ ] everybody who dissented from the edicts of the clubs was denounced as a public robber or monarchist. "what a continual yelping and barking are our swindlers, aristocrats, refugees, and british agents making at the constitutional societies" which were "like a noble mastiff ... with ... impotent and noisy puppies at his heels," cried the indignant editor of the "independent chronicle" of boston,[ ] to whom the democratic societies were "guardians of liberty." while these organizations strengthened radical opinion and fashioned american sympathizers of the french revolution into disciplined ranks, they also solidified the conservative elements of the united states. most viciously did the latter hate these "jacobin clubs," the principles they advocated, and their interference with public affairs. "they were born in sin, the impure offspring of genêt," wrote fisher ames. "they are the few against the many; the sons of darkness (for their meetings are secret) against those of the light; and above all, it is a _town_ cabal, attempting to rule the _country_."[ ] this testy new englander thus expressed the extreme conservative feeling against the "insanity which is epidemic":[ ] "this french mania," said ames, "is the bane of our politics, the mortal poison that makes our peace so sickly."[ ] "they have, like toads, sucked poison from the earth. they thirst for vengeance."[ ] "the spirit of mischief is as active as the element of fire and as destructive."[ ] ames describes the activities of the boston society and the aversion of the "better classes" for it: "the club is despised here by men of right heads," he writes. "but ... they [the members of the club] poison every spring; they whisper lies to every gale; they are everywhere, always acting like old nick and his imps.... they will be as busy as macbeth's witches at the election."[ ] in virginia the french revolution and the american "jacobins" helped to effect that change in patrick henry's political sentiments which his increasing wealth had begun. "if my country," wrote henry to washington, "is destined in my day to encounter the horrors of anarchy, every power of mind or body which i possess will be exerted in support of the government under which i live."[ ] as to france itself, henry predicted that "anarchy will be succeeded by despotism" and bonaparte, "caesar-like, subvert the liberties of his country."[ ] marshall was as much opposed to the democratic societies as was washington, or cabot, or ames, but he was calmer in his opposition, although vitriolic enough. when writing even ten years later, after time had restored perspective and cooled feeling, marshall says that these "pernicious societies"[ ] were "the resolute champions of all the encroachments attempted by the agents of the french republic on the government of the united states, and the steady defamers of the views and measures of the american executive."[ ] he thus describes their decline:-- "the colossean power of the [french] clubs, which had been abused to an excess that gives to faithful history the appearance of fiction, fell with that of their favourite member, and they sunk into long merited disgrace. the means by which their political influence had been maintained were wrested from them; and, in a short time, their meetings were prohibited. not more certain is it that the boldest streams must disappear, if the fountains which fed them be emptied, than was the dissolution of the democratic societies of america, when the jacobin clubs were denounced by france. as if their destinies depended on the same thread, the political death of the former was the unerring signal for that of the latter."[ ] such was the effect of the french revolution on american thought at the critical period of our new government's first trials. to measure justly the speech and conduct of men during the years we are now to review, this influence must always be borne in mind. it was woven into every great issue that arose in the united states. generally speaking, the debtor classes and the poorer people were partisans of french revolutionary principles; and the creditor classes, the mercantile and financial interests, were the enemies of what they called "jacobin philosophy." in a broad sense, those who opposed taxes, levied to support a strong national government, sympathized with the french revolution and believed in its ideas; those who advocated taxes for that purpose, abhorred that convulsion and feared its doctrines. those who had disliked government before the constitution was established and who now hated national control, heard in the preachings of the french revolutionary theorists the voice of their hearts; while those who believed that government is essential to society and absolutely indispensable to the building of the american nation, heard in the language and saw in the deeds of the french revolution the forces that would wreck the foundations of the state even while they were but being laid and, in the end, dissolve society itself. thus were the ideas of nationality and localism in america brought into sharper conflict by the mob and guillotine in france. all the passion for irresponsible liberty which the french revolution increased in america, as well as all the resentment aroused by the financial measures and foreign policy of the "federal administrations," were combined in the opposition to and attacks upon a strong national government. thus provincialism in the form of states' rights was given a fresh impulse and a new vitality. through nearly all the important legislation and diplomacy of those stirring and interpretative years ran, with ever increasing clearness, the dividing line of nationalism as against localism. such are the curious turns of human history. those whom jefferson led profoundly believed that they were fighting for human rights; and in their view and as a practical matter at that particular time this sacred cause meant state rights. for everything which they felt to be oppressive, unjust, and antagonistic to liberty, came from the national government. by natural contrast in their own minds, as well as by assertions of their leaders, the state governments were the sources of justice and the protectors of the genuine rights of man. in the development of john marshall as well as of his great ultimate antagonist, thomas jefferson, during the formative decade which we are now to consider, the influence of the french revolution must never be forgotten. not a circumstance of the public lives of these two men and scarcely an incident of their private experience but was shaped and colored by this vast series of human events. bearing in mind the influence of the french revolution on american opinion, and hence, on marshall and jefferson, let us examine the succeeding years in the light of this determining fact. footnotes: [ ] "that the principles of america opened the bastille is not to be doubted." (thomas paine to washington, may , ; _cor. rev.^ _: sparks, iv, .) "the principles of it [the french revolution] were copied from america." (paine to citizens of the united states, nov. , ; _writings_: conway, iii, .) "did not the american revolution produce the french revolution? and did not the french revolution produce all the calamities and desolations to the human race and the whole globe ever since?" (adams to rush, aug. , ; _old family letters_, .) "many of ... the leaders [of the french revolution] have imbibed their principles in america, and all have been fired by our example." (gouverneur morris to washington, paris, april , ; _cor. rev._: sparks, iv, .) "all the friends of freedom on this side the atlantic are now rejoicing for an event which ... has been accelerated by the american revolution.... you have been the means of raising that spirit in europe which ... will ... extinguish every remain of that barbarous servitude under which all the european nations, in a less ... degree, have so long been subject." (catharine m. graham to washington, berks (england), oct. ; _ib._, ; and see cobbett, i, .) [ ] see vol. i, chap. viii, of this work. [ ] marshall, ii, . "the mad harangues of the [french] national convention were all translated and circulated through the states. the enthusiasm they excited it is impossible for me to describe." (cobbett in "summary view"; cobbett, i, .) [ ] jefferson to humphreys, march , ; _works_: ford, v, . [ ] jefferson to madison, aug. , ; _ib._, . [ ] _boston gazette_, sept. and nov. , ; as quoted in hazen; and see hazen, - . [ ] gouverneur morris to washington, paris, april , ; _cor. rev._: sparks, iv, . even jefferson had doubted french capacity for self-government because of what he described as french light-mindedness. (jefferson to mrs. adams, feb. , ; _works_: ford, v, ; also see vol. i, chap. viii, of this work.) [ ] morris to washington, july , ; _cor. rev._: sparks, iv, . [ ] lafayette to washington, may , ; _cor. rev._: sparks, iv, . lafayette's letters to washington, from the beginning of the french revolution down to his humiliating expulsion from france, constitute a thermometer of french temperature, all the more trustworthy because his letters are so naïve. for example, in march, : "our revolution is getting on as well as it can, with a nation that has swallowed liberty at once, and is still liable to mistake licentiousness for freedom." or, in august of the same year: "i have lately lost some of my favor with the mob, and displeased the frantic lovers of licentiousness, as i am bent on establishing a legal subordination." or, six months later: "i still am tossed about in the ocean of factions and commotions of every kind." or, two months afterwards: "there appears a kind of phenomenon in my situation; all parties against me, and a national popularity which, in spite of every effort, has been unshakable." (lafayette to washington, march , ; _ib._, ; aug. , _ib._, ; march , , _ib._, ; may , , _ib._, .) [ ] g. morris to r. morris, dec. , ; morris, ii, . [ ] _ib._, i, - . [ ] louis otto to de montmorin, march , ; _writings_: conway, iii, . [ ] _ib._, - . [ ] morris associated with the nobility in france and accepted the aristocratic view. (_ib._; and see a. esmein, membre de l'institut: _gouverneur morris, un témoin américain de la révolution française_, paris, .) [ ] marshall, ii, note xvi, p. . [ ] recent investigation establishes the fact that the inmates of the bastille generally found themselves very well off indeed. the records of this celebrated prison show that even prisoners of mean station, when incarcerated for so grave a crime as conspiracy against the king's life, had, in addition to remarkably abundant meals, an astonishing amount of extra viands and refreshments including comfortable quantities of wine, brandy, and beer. prisoners of higher station fared still more generously, of course. (funck-brentano: _legends of the bastille_, - ; see also _ib._, introduction.) it should be said, however, that the _lettres de cachet_ were a chief cause of complaint, although the stories, generally exaggerated, concerning the cruel treatment of prisoners came to be the principal count of the public indictment of the bastille. [ ] lafayette to washington, march , ; _cor. rev._: sparks, iv, . [ ] washington to lafayette, august , ; _writings:_ ford, xi, . [ ] paine to washington, may , ; _cor. rev._: sparks, iv, . paine did not, personally, bring the key, but forwarded it from london. [ ] burke in the house of commons; _works_: burke, i, - . [ ] _ib._ [ ] _reflections on the revolution in france_; _ib._, i, . jefferson well stated the american radical opinion of burke: "the revolution of france does not astonish me so much as the revolution of mr. burke.... how mortifying that this evidence of the rottenness of his mind must oblige us now to ascribe to wicked motives those actions of his life which were the mark of virtue & patriotism." (jefferson to vaughan, may , ; _works_: ford, vi, .) [ ] paine had not yet lost his immense popularity in the united states. while, later, he came to be looked upon with horror by great numbers of people, he enjoyed the regard and admiration of nearly everybody in america at the time his _rights of man_ appeared. [ ] _writings_: conway, ii, . [ ] _writings_: conway, ii, . at this very moment the sympathizers with the french revolution in america were saying exactly the reverse. [ ] _writings_: conway, ii, - , , , , . [ ] compare with jefferson's celebrated letter to mazzei (_infra_, chap. vii). jefferson was now, however, in washington's cabinet. [ ] jefferson to paine, june , ; _works_: ford, vii, - ; and see hazen, - . jefferson had, two years before, expressed precisely the views set forth in paine's _rights of man_. indeed, he stated them in even more startling terms. (see jefferson to madison, sept. , ; _ib._, vi, - .) [ ] _writings, j. q. a._: ford, i, - . john quincy adams wrote these admirable essays when he was twenty-four years old. their logic, wit, and style suggest the writer's incomparable mother. madison, who remarked their quality, wrote to jefferson: "there is more of method ... in the arguments, and much less of clumsiness & heaviness in the style, than characterizes his [john adams's] writings." (madison to jefferson, july , ; _writings_: hunt, vi, .) the sagacious industry of mr. worthington c. ford has made these and all the other invaluable papers of the younger adams accessible, in his _writings of john quincy adams_ now issuing. [ ] jefferson to adams, july , ; _works_: ford, vi, , and footnote; also see jefferson to washington, may , ; _ib._, - . jefferson wrote washington and the elder adams, trying to evade his patronage of paine's pamphlet; but, as mr. ford moderately remarks, "the explanation was somewhat lame." (_writings, j. q. a._: ford, i, ; and see hazen, - .) later jefferson avowed that "mr. paine's principles ... were the principles of the citizens of the u. s." (jefferson to adams, aug. , ; _works_: ford, vi, .) to his intimate friend, monroe, jefferson wrote that "publicola, in attacking all paine's principles, is very desirous of involving me in the same censure with the author. i certainly merit the same, for i profess the same principles." (jefferson to monroe, july , ; _ib._, .) jefferson at this time was just on the threshold of his discovery of and campaign against the "deep-laid plans" of hamilton and the nationalists to transform the newborn republic into a monarchy and to deliver the hard-won "liberties" of the people into the rapacious hands of "monocrats," "stockjobbers," and other "plunderers" of the public. (see next chapter.) [ ] _writings, j. q. a._: ford, i, - . [ ] although john quincy adams had just been admitted to the bar, he was still a student in the law office of theophilus parsons at the time he wrote the publicola papers. [ ] _writings, j. q. a._: ford, i, - . [ ] _writings, j. q. a._: ford, i, footnote to . "as soon as publicola attacked paine, swarms appeared in his defense.... instantly a host of writers attacked publicola in support of those [paine's] principles." (jefferson to adams, aug. , ; _works_: ford, vi, ; and see jefferson to madison, july , ; _ib._, .) [ ] _writings, j. q. a._: ford, i, . [ ] madison to jefferson, july , ; _writings_; hunt, vi, ; and see monroe to jefferson, july , ; monroe's _writings_: hamilton, i, - . [ ] a verse of a song by french revolutionary enthusiasts at a boston "civic festival in commemoration of the successes of their french brethren in their glorious enterprise for the establishment of equal liberty," as a newspaper describes the meeting, expresses in reserved and moderate fashion the popular feeling:-- "see the bright flame arise, in yonder eastern skies spreading in veins; 't is pure democracy setting all nations free melting their chains." at this celebration an ox with gilded horns, one bearing the french flag and the other the american; carts of bread and two or three hogsheads of rum; and other devices of fancy and provisions for good cheer were the material evidence of the radical spirit. (see _columbian centinel_, jan. , .) [ ] it is certain that madison could not possibly have continued in public life if he had remained a conservative and a nationalist. (see next chapter.) [ ] marshall, ii, . [ ] jefferson to martha jefferson randolph, may , ; _works_: ford, vii, . [ ] marshall, ii, - . [ ] marshall, ii, - . [ ] jefferson to t. m. randolph, jan. , ; _works_: ford, vii, . [ ] mass. hist. collections ( th series), i, . [ ] typical excerpts from short's reports to jefferson are: july , : "those mad & corrupted people in france who under the name of liberty have destroyed their own government [french constitution of ] & disgusted all ... men of honesty & property.... all the rights of humanity ... are daily violated with impunity ... universal anarchy prevails.... there is no succour ... against mobs & factions which have assumed despotic power." july : "the factions which have lately determined the system ... for violating all the bonds of civil society ... have disgusted all, except the _sans culottes_ ... with the present order of things ... the most perfect & universal disorder that ever reigned in any country. those who from the beginning took part in the revolution ... have been disgusted, by the follies, injustice, & atrocities of the jacobins.... all power [is] in the hands of the most mad, wicked & atrocious assembly that ever was collected in any country." august : "the swiss guards have been massacred by the people & ... streets literally are red with blood." october : "their [french] successes abroad are unquestionably evils for humanity. the spirit which they will propagate is so destructive of all order ... so subversive of all ideas of justice--the system they aim at so absolutely visionary & impracticable--that their efforts can end in nothing but despotism after having bewildered the unfortunate people, whom they render free in their way, in violence & crimes, & wearied them with sacrifices of blood, which alone they consider worthy of the furies whom they worship under the names of _liberté_ & _egalité_!" august : "i sh^d. not be at all surprized to hear of the present leaders being hung by the people. such has been the moral of this revolution from the beginning. the people have gone farther than their leaders.... we may expect ... to hear of such proceedings, under the cloak of liberty, _égalité_ & patriotism as would disgrace any _chambre ardente_ that has ever created in humanity shudders at the idea." (short mss., lib. cong.) these are examples of the statements to which jefferson's letter, quoted in the text following, was the reply. short's most valuable letters are from the hague, to which he had been transferred. they are all the more important, as coming from a young radical whom events in france had changed into a conservative. and jefferson's letter is conclusive of american popular sentiment, which he seldom opposed. [ ] almost at the same time thomas paine was writing to jefferson from paris of "the jacobins who act without either prudence or morality." (paine to jefferson, april , ; _writings_: conway, iii, .) [ ] jefferson to short, jan. , ; _works_: ford, vii, - . short had written jefferson that morris, then in paris, would inform him of french conditions. morris had done so. for instance, he wrote officially to jefferson, nearly four months before the latter's letter to short quoted in the text, that: "we have had one week of unchecked murders, in which some thousands have perished in this city [paris]. it began with between two and three hundred of the clergy, who would not take the oath prescribed by law. thence these _executors of speedy justice_ went to the abbaye, where the prisoners were confined who were at court on the th. madame de lamballe ... was beheaded and disembowelled; the head and entrails paraded on pikes through the street, and the body dragged after them," etc., etc. (morris to jefferson, sept. , ; morris, i, - .) [ ] madison to jefferson, june , ; _writings_: hunt, vi, . [ ] paine to danton, may , ; _writings_: conway, iii, - . [ ] "truth," in the _general advertiser_ (philadelphia), may , . "truth" denied that louis xvi had aided us in our revolution and insisted that it was the french nation that had come to our assistance. such was the disregard of the times for even the greatest of historic facts, and facts within the personal knowledge of nine tenths of the people then living. [ ] see _writings, j. q. a._: ford, i, . [ ] jefferson to madison, april , ; _works_: ford, vii, . [ ] for examples of these, see hazen, - . [ ] graydon, . [ ] freneau's _national gazette_ defended the execution of the king and the excesses of the terror. (hazen, ; and see cobbett, iii, .) while cobbett, an englishman, was a fanatic against the whole democratic movement, and while his opinions are violently prejudiced, his statements of fact are generally trustworthy. "i have seen a bundle of gazettes published all by the same man, wherein mirabeau, fayette, brissot, danton, robespierre, and barras, are all panegyrized and execrated in due succession." (_ib._, i, .) cobbett did his best to turn the radical tide, but to no purpose. "alas!" he exclaimed, "what can a straggling pamphlet ... do against a hundred thousand volumes of miscellaneous falsehood in folio?" (_ib._, iii, .) [ ] see next chapter. [ ] fenno to hamilton, nov. , ; king, i, - . "the hand of benevolence & _patriotism_" was extended, it appears: "if you can ... raise dollars in new york, i will endeavor to raise another thousand at philadelphia. if this cannot be done, we must lose his [fenno's and the _gazette of the united states_] services & he will be the victim of his honest public spirit." (hamilton to king, nov. , ; king, i, .) [ ] cobbett, i, footnote to . curiously enough louis xvi had believed that he was leading the french people in the reform movement. thomas paine, who was then in paris, records that "the king ... prides himself on being the head of the revolution." (paine to washington, may , ; _cor. rev._: sparks, iv, .) [ ] cobbett, i, - ; and see hazen, . for other accounts of the "feasts" in honor of _liberté, égalité, et fraternité_, in america, see _ib._, - . [ ] cobbett, i, . [ ] for instance, the younger adams wrote that the french revolution had "contributed more to ... vandalic ignorance than whole centuries can retrieve.... the myrmidons of robespierre were as ready to burn libraries as the followers of omar; and if the principle is finally to prevail which puts the sceptre of sovereignty in the hands of european sans culottes, they will soon reduce everything to the level of their own ignorance." (john quincy adams to his father, july , ; _writings, j. q. a._: ford, i, .) and james a. bayard wrote that: "the barbarians who inundated the roman empire and broke to pieces the institutions of the civilized world, in my opinion innovated the state of things not more than the french revolution." (bayard to bassett, dec. , ; _bayard papers_: donnan, .) [ ] freneau, iii, . [ ] marshall, ii, . [ ] austria. [ ] marshall, ii, . [ ] "they have long considered the m^{is} de lafayette as really the firmest supporter of the principles of liberty in france--& as they are for the most part no friends to these principles anywhere, they cannot conceal the pleasure they [the aristocracy at the hague] feel at their [principles of liberty] supporters' being thus expelled from the country where he laboured to establish them." (short to jefferson, aug. , ; short mss., lib. cong.) [ ] cobbett, i, . [ ] _ib._ when the corporation of new york city thus took all monarchy out of its streets, noah webster suggested that, logically, the city ought to get rid of "this vile aristocratical name new york"; and, why not, inquired he, change the name of kings county, queens county, and orange county? "nay," exclaimed the sarcastic savant, "what will become of the people named king? alas for the liberties of such people!" (hazen, .) [ ] hazen, . [ ] j. q. adams, to t. b. adams, feb. , ; _writings, j. q. a._: ford, i, - . [ ] stuart to washington, july , ; _cor. rev._: sparks, iv, - ; and see randolph to madison, may , ; conway, . [ ] see hazen, - . [ ] _ib._, . [ ] see hazen, . [ ] cobbett, i, . [ ] for an impartial and comprehensive account of these clubs see hazen, - ; also, marshall, ii, _et seq._ at first many excellent and prominent men were members; but these withdrew when the clubs fell under the control of less unselfish and high-minded persons. [ ] washington to thruston, aug. , ; _writings_: ford, xii, . [ ] washington to randolph, oct. , ; _ib._, ; and see washington to lee, aug. , ; _ib._, . [ ] cabot to parsons, aug. , ; lodge: _cabot_, . [ ] j. q. adams to john adams, oct. , ; _writings, j. q. a._: ford, i, . [ ] jefferson to rutledge, aug. , ; _works_: ford, vi, . [ ] see hazen, - . [ ] september , . [ ] ames to dwight, sept. , ; _works_: ames, i, . [ ] cabot to king, july , ; lodge: _cabot_, . [ ] ames to gore, march , ; _works_: ames, i, . [ ] ames to minot, feb. , ; _ib._, . [ ] ames to gore, jan. , ; _ib._, . [ ] ames to dwight, sept. , ; _ib._, . [ ] henry to washington, oct. , ; henry, ii, . [ ] _ib._, . [ ] marshall, ii, . [ ] _ib._, . [ ] marshall, ii, - . chapter ii a virginia nationalist lace congress up straitly within the enumerated powers. (jefferson.) construe the constitution liberally in advancement of the common good. (hamilton.) to organize government, to retrieve the national character, to establish a system of revenue, to create public credit, were among the duties imposed upon them. (marshall.) i trust in that providence which has saved us in six troubles, yea, in seven, to rescue us again. (washington.) the constitution's narrow escape from defeat in the state conventions did not end the struggle against the national principle that pervaded it.[ ] the anti-nationalists put forth all their strength to send to the state legislatures and to the national house and senate as many antagonists of the national idea as possible.[ ] "exertions will be made to engage two thirds of the legislatures in the task of regularly undermining the government" was madison's "hint" to hamilton.[ ] madison cautioned washington to the same effect, suggesting that a still more ominous part of the plan was "to get a congress appointed in the first instance that will commit suicide on their own authority."[ ] not yet had the timorous madison personally felt the burly hand of the sovereign people so soon to fall upon him. not yet had he undergone that familiar reversal of principles wrought in those politicians who keep an ear to the ground. but that change was swiftly approaching. even then the _vox populi_ was filling the political heavens with a clamor not to be denied by the ambitious. the sentiment of the people required only an organizer to become formidable and finally omnipotent. such an artisan of public opinion was soon to appear. indeed, the master political potter was even then about to start for america where the clay for an anti-nationalist party was almost kneaded for the moulder's hands. jefferson was preparing to leave france; and not many months later the great politician landed on his native soil and among his fellow citizens, who, however, welcomed him none too ardently.[ ] no one knew just where jefferson stood on the fundamental question of the hour when, with his two daughters, he arrived in virginia in . the brilliant virginian had uttered both nationalist and anti-nationalist sentiments. "i am not of the party of the federalists," he protested, "but i am much farther from that of the antifederalists." indeed, declared jefferson, "if i could not go to heaven but with a party, i would not go there at all."[ ] his first opinions of the constitution were, as we have seen, unfavorable. but after he had learned that the new government was to be a fact, jefferson wrote washington: "i have seen with infinite pleasure our new constitution accepted." careful study had taught him, he said, "that circumstances may arise, and probably will arise, wherein all the resources of taxation will be necessary for the safety of the state." he saw probability of war which "requires every resource of taxation & credit." he thought that "the power of making war often prevents it."[ ] thus jefferson could be quoted on both sides and claimed by neither or by both. but, because of his absence in france and of the reports he had received from the then extreme nationalist, madison, he had not yet apprehended the people's animosity to national rule. upon his arrival in virginia, however, he discovered that "antifederalism is not yet dead in this country."[ ] that much, indeed, was clear at first sight. the legislature of virginia, which met three months after her convention had ratified the constitution, was determined to undo that work, as madison had foreseen.[ ] that body was militantly against the new government as it stood. "the conflict between the powers of the general and state governments was coeval with those governments," declares marshall. "the old line of division was still as strongly marked as ever." the enemies of national power thought that "liberty could be endangered only by encroachments upon the states; and that it was the great duty of patriotism to restrain the powers of the general government within the narrowest possible limits." on the other hand, the nationalists, says marshall, "sincerely believed that the real danger which threatened the republic was to be looked for in the undue ascendency of the states."[ ] [illustration: _john marshall from a painting by e. f. petticolas_] patrick henry was supreme in the house of delegates. washington was vastly concerned at the prospect. he feared that the enemies of nationalism would control the state legislature and that it would respond to new york's appeal for a new federal constitutional convention. he was "particularly alarmed" that the general assembly would elect senators "entirely anti-federal."[ ] his apprehension was justified. hardly a week passed after the house convened until it passed resolutions, drawn by henry,[ ] to answer clinton's letter, to ask congress to call a new federal convention, and to coöperate with other states in that business. in vain did the nationalist members strive to soften this resolution. an amendment which went so far as to request congress to recommend to the several states "the ratification of a bill of rights" and of the twenty amendments proposed by the virginia convention, was defeated by a majority of out of a total vote of .[ ] swiftly and without mercy the triumphant opposition struck its next blow. washington had urged madison to stand for the senate,[ ] and the nationalists exerted themselves to elect him. madison wrote cleverly in his own behalf.[ ] but he had no hope of success because it was "certain that a clear majority of the assembly are enemies to the gov^t."[ ] madison was still the ultra-nationalist, who, five years earlier, had wanted the national government to have an absolute veto on _every_ state law.[ ] henry delivered "a tremendous philippic" against madison as soon as his name was placed before the general assembly.[ ] madison was badly beaten, and richard henry lee and william grayson were chosen as the first senators from virginia under the new national government.[ ] the defeated champion of the constitution attributed henry's attack and his own misfortune to his nationalist principles: henry's "enmity was levelled ... ag^{st} the _whole system_; and the destruction of the whole system, i take to be the secret wish of his heart."[ ] in such fashion did madison receive his first chastisement for his nationalist views and labors. he required no further discipline of a kind so rough and humiliating; and he sought and secured election to the national house of representatives,[ ] with opinions much subdued and his whole being made pliant for the wizard who so soon was to invoke his spell over that master mind. though marshall was not in the virginia legislature at that session, it is certain that he worked with its members for madison's election as senator. but even marshall's persuasiveness was unavailing. "nothing," wrote randolph to madison, "is left undone which can tend to the subversion of the new government."[ ] hard upon its defeat of madison the legislature adopted an ominous address to congress. "the sooner ... the [national] government is possessed of the confidence of the people ... _the longer its duration_"--such was the language and spirit of virginia's message to the lawmakers of the nation, even before they had assembled.[ ] the desperate nationalists sought to break the force of this blow. they proposed a substitute which even suggested that the widely demanded new federal convention should be called by congress if that body thought best. but all to no purpose. their solemn[ ] amendment was beaten by a majority of out of a total vote of .[ ] thus again was displayed that hostility to nationalism which was to focus upon the newborn national government every burning ray of discontent from the flames that sprang up all over the country during the constructive but riotous years that followed. were the people taxed to pay obligations incurred in our war for independence?--the national government was to blame. was an excise laid on whiskey, "the common drink of the nation"[ ]--it was the national government which thus wrung tribute from the universal thirst. were those who owed debts compelled, at last, to pay them?--it was the national government which armed the creditor with power to recover his own. why did we not aid french republicans against the hordes of "despotism"? because the national government, with its accursed neutrality, would not let us! and who but the national government would dare make a treaty with british monarchy, sacrificing american rights? speculation and corruption, parade and ostentation,--everything that could, reasonably or unreasonably, be complained of,--were, avowed the anti-nationalists, the wretched but legitimate offspring of nationalism. the remedy, of course, was to weaken the power of the nation and strengthen that of the states. such was the course pursued by the foes of nationalism, that we shall trace during the first three administrations of the government of the united states. thus, the events that took place between and , supplemented and heated by the french revolution, developed to their full stature those antagonistic theories of which john marshall and thomas jefferson were to become the chief expounders. those events also finished the preparation of these two men for the commanding stations they were to occupy. the radical politician and states' rights leader on the one hand, and the conservative politician and nationalist jurist on the other hand, were finally settled in their opinions during these developing years, at the end of which one of them was to occupy the highest executive office and the other the highest judicial office in the government. it was under such circumstances that the national government, with washington at its head, began its uncertain career. if the legislature of virginia had gone so far before the infant national establishment was under way, how far might not succeeding legislatures go? no one knew. but it was plain to all that every act of the new administration, even with washington at the helm, would be watched with keen and jealous eyes; and that each nationalist turn of the wheel would meet with prompt and stern resistance in the general assembly of the greatest of american commonwealths. mutiny was already aboard. john marshall, therefore, determined again to seek election to the house of delegates. immediately upon the organization of the national government, washington appointed marshall to be united states attorney for the district of virginia. the young lawyer's friends had suggested his name to the president, intimating that he wished the place.[ ] marshall, high in the esteem of every one, had been consulted as to appointments on the national bench,[ ] and washington gladly named him for district attorney. but when notified of his appointment, marshall declined the honor. a seat in the virginia legislature, was, however, quite another matter. although his work as a legislator would interfere with his profession much more than would his duties as united states attorney, he could be of practical service to the national government in the general assembly of the state where, it was plain, the first battle for nationalism must be fought. the virginia nationalists, much alarmed, urged him to make the race. the most popular man in richmond, he was the only nationalist who could be elected by that constituency; and, if chosen, would be the ablest supporter of the administration in the legislature. although the people of henrico county were more strongly against a powerful national government than they had been when they sent marshall to the constitutional convention the previous year, they nevertheless elected him; and in marshall once more took his seat as a member of virginia's law-making and law-marring body. he was at once given his old place on the two principal standing committees;[ ] and on special committees to bring in various bills,[ ] among them one concerning descents, a difficult subject and of particular concern to virginians at that time.[ ] as a member of the committee of privileges and elections, he passed on a hotly contested election case.[ ] he was made a member of the important special committee to report upon the whole body of laws in force in virginia, and helped to draw the committee's report, which is comprehensive and able.[ ] the following year he was appointed a member of the committee to revise the tangled laws of the commonwealth.[ ] the irrepressible subject of paying taxes in something else than money soon came up. marshall voted against a proposition to pay the taxes in hemp and tobacco, which was defeated by a majority of out of a total vote of ; and he voted for the resolution "that the taxes of the present year ought to be paid in specie only or in warrants equivalent thereto," which carried.[ ] he was added to the committee on a notable divorce case.[ ] marshall was, of course, appointed on the special committee to bring in a bill giving statehood to the district of kentucky.[ ] thus he had to do with the creation of the second state to be admitted after the constitution was adopted. a bill was passed authorizing a lottery to raise money to establish an academy in marshall's home county, fauquier.[ ] he voted with the majority against the perennial baptist petition to democratize religion;[ ] and for the bill to sell lands for taxes.[ ] marshall was appointed on the committee to bring in bills for proceeding against absent debtors;[ ] on another to amend the penal code;[ ] and he was made chairman of the special committee to examine the james river company,[ ] of which he was a stockholder. such are examples of his routine activities in the legislature of . the legislature instructed the virginia senators in congress "to use their utmost endeavors to procure the admission of the citizens of the united states to hear the debates of their house, whenever they are sitting in their legislative capacity."[ ] an address glowing with love, confidence, and veneration was sent to washington.[ ] then jefferson came to richmond; and the legislature appointed a committee to greet him with polite but coldly formal congratulations.[ ] no one then foresaw that a few short years would turn the reverence and affection for washington into disrespect and hostility, and the indifference toward jefferson into fiery enthusiasm. the first skirmish in the engagement between the friends and foes of a stronger national government soon came on. on november , , the house ratified the first twelve amendments to the constitution,[ ] which the new congress had submitted to the states; but three days later it was proposed that the legislature urge congress to reconsider the amendments recommended by virginia which congress had not adopted.[ ] an attempt to make this resolution stronger was defeated by the deciding vote of the speaker, marshall voting against it.[ ] the anti-nationalist state senate refused to concur in the house's ratification of the amendments proposed by congress;[ ] and marshall was one of the committee to hold a conference with the senate committee on the subject. after congress had passed the laws necessary to set the national government in motion, madison had reluctantly offered his summary of the volume of amendments to the constitution recommended by the states "in order," as he said, "to quiet that anxiety which prevails in the public mind."[ ] the debate is illuminating. the amendments, as agreed to, fell far short of the radical and extensive alterations which the states had asked and were understood to be palliatives to popular discontent.[ ] randolph in richmond wrote that the amendments were "much approved by the _strong_ federalists ... being considered as an anodyne to the discontented. some others ... expect to hear, ... that a real amelioration of the constitution was not so much intended, as a soporific draught to the restless. i believe, indeed," declared randolph, "that nothing--nay, not even the abolishment of direct taxation--would satisfy those who are most clamorous."[ ] the amendments were used by many, who changed from advocates to opponents of broad national powers, as a pretext for reversed views and conduct; but such as were actually adopted were not a sufficient justification for their action.[ ] the great question, however, with which the first congress had to deal, was the vexed and vital problem of finance. it was the heart of the whole constitutional movement.[ ] without a solution of it the national government was, at best, a doubtful experiment. the public debt was a chaos of variegated obligations, including the foreign and domestic debts contracted by the confederation, the debts of the various states, the heavy accumulation of interest on all.[ ] public and private credit, which had risen when the constitution finally became an accomplished fact, was now declining with capital's frail timidity of the uncertain. in his "first report on the public credit," hamilton showed the way out of this maddening jungle. pay the foreign debt, said hamilton, assume as a national obligation the debts of the states and fund them, together with those of the confederation. all had been contracted for a common purpose in a common cause; all were "the price of liberty." let the owners of certificates, both state and continental, be paid in full with arrears of interest, without discrimination between original holders and those who had purchased from them. and let this be done by exchanging for the old certificates those of the new national government bearing interest and transferable. these latter then would pass as specie;[ ] the country would be supplied with a great volume of sound money, so badly needed,[ ] and the debt be in the process of extinguishment.[ ] hamilton's entire financial system was assailed with fury both in congress and among the people. the funding plan, said its opponents, was a stock-jobbing scheme, the bank a speculator's contrivance, the national assumption of state debts a dishonest trick. the whole was a plot designed to array the moneyed interests in support of the national government.[ ] assumption of state debts was a device to increase the national power and influence and to lessen still more the strength and importance of the states.[ ] the speculators, who had bought the depreciated certificates of the needy, would be enriched from the substance of the whole people. without avail had hamilton answered every objection in advance; the careful explanations in congress of his financial measures went for naught; the materials for popular agitation against the national government were too precious to be neglected by its foes.[ ] "the first regular and systematic opposition to the principles on which the affairs of the union were administered," writes marshall, "originated in the measures which were founded on it [the "first report on the public credit"]."[ ] the assumption of state debts was the strategic point of attack, especially for the virginia politicians; and upon assumption, therefore, they wisely concentrated their forces. nor were they without plausible ground of opposition; for virginia, having given as much to the common cause as any state and more than most of her sisters, and having suffered greatly, had by the sale of her public lands paid off more of her debt than had any of the rest of them. it seemed, therefore, unjust to virginians to put their state on a parity with those commonwealths who had been less prompt. on the other hand, the certificates of debt, state and continental, had accumulated in the north and east;[ ] and these sections were determined that the debt should be assumed by the nation.[ ] so the debate in congress was heated and prolonged, the decision doubtful. on various amendments, sometimes one side and sometimes the other prevailed, often by a single vote.[ ] at the same time the question of the permanent location of the national capital arose.[ ] on these two subjects congress was deadlocked. both were disposed of finally by the famous deal between jefferson and hamilton, by which the latter agreed to get enough votes to establish the capital on the potomac and the former enough votes to pass the assumption bill. washington had made jefferson his secretary of state purely on merit. for similar reasons of efficiency hamilton had been appointed secretary of the treasury, after robert morris, washington's first choice, had declined that office. at jefferson's dinner table, the two secretaries discussed the predicament and made the bargain. thereupon, jefferson, with all the zeal of his ardent temperament, threw himself into the contest to pass hamilton's financial measure; and not only secured the necessary votes to make assumption a law, but wrote letters broadcast in support of it. "congress has been long embarrassed," he advised monroe, "by two of the most irritating questions that ever can be raised, ... the funding the public debt and ... the fixing on a more central residence.... unless they can be reconciled by some plan of compromise, there will be no funding bill agreed to, our credit ... will burst and vanish and the states separate to take care every one of itself." jefferson outlines the bargain for fixing the capital and assuming the debts, and concludes: "if this plan of compromise does not take place, i fear one infinitely worse."[ ] to john harvie he writes: "with respect to virginia the measure is ... divested of ... injustice."[ ] jefferson delivered three southern votes to pass the bill for assumption of the state debts, and hamilton got enough northern votes to locate the national capital permanently where it now stands.[ ] thus this vital part of hamilton's comprehensive financial plan was squeezed through congress by only two votes.[ ] but virginia was not appeased and remained the center of the opposition.[ ] business at once improved. "the sudden increase of monied capital," writes marshall, "invigorated commerce, and gave a new stimulus to agriculture."[ ] but the "immense wealth which individuals acquired" by the instantaneous rise in the value of the certificates of debt caused popular jealousy and discontent. the debt was looked upon, not as the funding of obligations incurred in our war for independence, but as a scheme newly hatched to strengthen the national government by "the creation of a monied interest ... subservient to its will."[ ] the virginia legislature, of which marshall was now the foremost nationalist member, convened soon after assumption had become a national law. a smashing resolution, drawn by henry,[ ] was proposed, asserting that assumption "is repugnant to the constitution of the united states, as it goes to the exercise of a power not expressly granted to the general government."[ ] marshall was active among and, indeed, led those who resisted to the uttermost the attack upon this thoroughly national measure of the national government. knowing that they were outnumbered in the legislature and that the people were against assumption, marshall and his fellow nationalists in the house of delegates employed the expedient of compromise. they proposed to amend henry's resolution by stating that assumption would place on virginia a "heavy debt ... which never can be extinguished" so long as the debt of any other state remained unpaid; that it was "inconsistent with justice"; that it would "alienate the affections of good citizens of this commonwealth from the government of the united states ... and finally tend to produce measures extremely unfavorable to the interests of the union."[ ] savage enough for any one, it would seem, was this amendment of the nationalists in the virginia legislature; but its fangs were not sufficiently poisonous to suit the opposition. it lacked, particularly, the supreme virtue of asserting the law's unconstitutionality. so the virginia anti-nationalists rejected it by a majority of votes out of a total of . marshall and his determined band of nationalists labored hard to retrieve this crushing defeat. on henry's original resolution, they slightly increased their strength, but were again beaten by a majority of out of voting.[ ] finally, the triumphant opposition reported a protest and remonstrance to congress. this brilliant anti-nationalist state paper--the magna charta of states' rights--sounded the first formal call to arms for the doctrine that all powers not expressly given in the constitution were reserved to the states. it also impeached the assumption act as an effort "to erect and concentrate and perpetuate a large monied interest in opposition to the landed interests," which would prostrate "agriculture at the feet of commerce" or result in a "change in the present form of federal government, fatal to the existence of american liberty."[ ] but the unconstitutionality of assumption was the main objection. the memorial declared that "during the whole discussion of the federal constitution by the convention of virginia, your memorialists were taught to believe 'that every power not expressly granted was retained' ... and upon this positive condition" the constitution had been adopted. but where could anything be found in the constitution "authorizing congress to express terms or to assume the debts of the states?" nowhere! therefore, congress had no such power. "as the guardians, then, of the rights and interests of their constituents; as sentinels placed by them over the ministers of the federal government, to shield it from their encroachments," the anti-nationalists in the virginia legislature sounded the alarm.[ ] it was of this jealous temper of the states that ames so accurately wrote a year later: "the [national] government is too far off to gain the affections of the people.... instead of feeling as a nation, a state is our country. we look with indifference, often with hatred, fear, and aversion, to the other states."[ ] marshall and his fellow nationalists strove earnestly to extract from the memorial as much venom as possible, but were able to get only three or four lines left out;[ ] and the report was adopted practically as originally drafted.[ ] thus marshall was in the first skirmish, after the national government had been established, of that constitutional engagement in which, ultimately, nationalism was to be challenged on the field of battle. sumter and appomattox were just below the horizon. the remainder of hamilton's financial plan was speedily placed upon the statute books of the republic, though not without determined resistance which, more and more, took on a grim and ugly aspect both in congress and throughout the country. when henry's resolution, on which the virginia remonstrance was based, reached hamilton, he instantly saw its logical result. it was, he thought, the major premise of the syllogism of national disintegration. "this," exclaimed hamilton, of the virginia resolution, "is the first symptom of a spirit which must either be killed or it will kill the constitution of the united states."[ ] the anti-nationalist memorial of the legislature of virginia accurately expressed the sentiment of the state. john taylor of caroline two years later, in pamphlets of marked ability, attacked the administration's entire financial system and its management. while he exhaustively analyzed its economic features, yet he traced all its supposed evils to the nationalist idea. the purpose and result of hamilton's whole plan and of the manner of its execution was, declared taylor, to "swallow up ... the once sovereign ... states.... hence all assumptions and ... the enormous loans." thus "the state governments will become only speculative commonwealths to be read for amusement, like harrington's _oceana_ or moore's _utopia_."[ ] the fight apparently over, marshall declined to become a candidate for the legislature in the following year. the administration's financial plan was now enacted into law and the vital part of the national machinery thus set up and in motion. the country was responding with a degree of prosperity hitherto unknown, and, for the time, all seemed secure.[ ] so marshall did not again consent to serve in the house of delegates until . but the years between these periods of his public life brought forth events which were determinative of the nation's future. upon the questions growing out of them, john marshall was one of the ever-decreasing virginia minority which stanchly upheld the policies of the national government. virginia's declaration of the unconstitutionality of the assumption act had now thundered in jefferson's ears. he himself was instrumental in the enactment of this law and its unconstitutionality never occurred to him[ ] until virginia spoke. but, faithful to the people's voice,[ ] jefferson was already publicly opposing, through the timid but resourceful madison[ ] and the fearless and aggressive[ ] giles, the nationalist statesmanship of hamilton.[ ] thus it came about that when washington asked his cabinet's opinion upon the bill to incorporate the bank of the united states, jefferson promptly expressed with all his power the constitutional theory of the virginia legislature. the opposition had reached the point when, if no other objection could be found to any measure of the national government, its "unconstitutionality" was urged against it. "we hear, incessantly, from the old foes of the constitution 'this is unconstitutional and that is,' and, indeed, what is not? i scarce know a point which has not produced this cry, not excepting a motion for adjourning."[ ] jefferson now proceeded "to produce this cry" against the bank bill. hamilton's plan, said jefferson, violated the constitution. "to take a single step beyond the boundaries thus specially drawn around the powers of congress [the twelfth amendment][ ] is to take possession of a boundless field of power, no longer susceptible of any definition." even if the bank were "convenient" to carry out any power specifically granted in the constitution, yet it was not "_necessary_," argued jefferson; all powers expressly given could be exercised without the bank. it was only indispensable powers that the constitution permitted to be implied from those definitely bestowed on congress--"convenience is not necessity."[ ] hamilton answered with his argument for the doctrine of implied powers.[ ] banks, said he, are products of civilized life--all enlightened commercial nations have them. he showed the benefits and utility of banks; answered all the objections to these financial agencies; and then examined the disputed constitutionality of the bill for the incorporation of the bank of the united states. all the powers of the national government were not set down in words in the constitution and could not be. for instance, there are the "resulting powers," as over conquered territory. nobody could deny the existence of such powers--yet they were not granted by the language of the fundamental law. as to jefferson's argument based on the word "necessary," his contention meant, said hamilton, that "no means are to be considered _necessary_ without which the power would be _nugatory_"--which was absurd. jefferson's reasoning would require that an implied power should be "_absolutely_ or _indispensably_ necessary." but this was not the ordinary meaning of the word and it was by this usual and customary understanding of terms that the constitution must be interpreted. if jefferson was right, congress could act only in "a case of extreme necessity." such a construction of the constitution would prevent the national government even from erecting lighthouses, piers, and other conveniences of commerce which _could_ be carried on without them. these illustrations revealed the paralysis of government concealed in jefferson's philosophy. the true test of implied powers, hamilton showed, was the "natural relation [of means] to the ... lawful ends of the government." collection of taxes, foreign and interstate trade, were, admittedly, such ends. the national power to "_regulate_" these is "_sovereign_"; and therefore "to employ all the means which will relate to their regulation to the best and greatest advantage" is permissible. "this _general principle_ is _inherent_ in the very _definition_ of government," declared he, "and _essential_ to every step of the progress to be made by that of the united states, namely: that every power vested in a government is in its nature _sovereign_ and included by _force_ of the _term_, a right to employ all the _means_ requisite and fairly applicable to the attainment of the _ends_ of such power, and which are not precluded by restrictions and exceptions specified in the constitution or not immoral, or not contrary to the _essential_ ends of political society.... "the powers of the federal government, as to _its objects_ are sovereign"; the national constitution, national laws, and treaties are expressly declared to be "the supreme law of the land." and he added, sarcastically: "the power which can create _the supreme law of the land_ in _any case_ is doubtless _sovereign_ as to such case." but, said hamilton, "it is unquestionably incident to _sovereign power_ to erect corporations, and consequently to _that_ of the united states, in _relation_ to the _objects_ intrusted to the management of the government." and, finally: "the powers contained in a constitution of government ... ought to be construed liberally in advancement of the public good.... the means by which natural exigencies are to be provided for, national inconveniences obviated, national prosperity promoted are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means."[ ] so were stated the opposing principles of liberal and narrow interpretation of the constitution, about which were gathering those political parties that, says marshall, "in their long and dubious conflict ... have shaken the united states to their centre."[ ] the latter of these parties, under the name "republican," was then being shaped into a compact organization. its strength was increasing. the object of republican attack was the national government; that of republican praise and affection was the sovereignty of the states. "the hatred of the jacobites towards the house of hanover was never more deadly than that ... borne by many of the partisans of state power towards the government of the united states," testifies ames.[ ] in the republican view the basis of the two parties was faith as against disbelief in the ability of the people to govern themselves; the former favored the moneyed interests, the latter appealed to the masses.[ ] such was the popular doctrine preached by the opponents of the national government; but all economic objections centered in a common assault on nationalism. thus a clear dividing line was drawn separating the people into two great political divisions; and political parties, in the present-day sense of definite organizations upon fundamental and popularly recognized principles, began to emerge. henceforth the terms "federalist" and "republican" mean opposing party groups, the one standing for the national and the other for the provincial idea. the various issues that arose were referred to the one or the other of these hostile conceptions of government. in this rise of political parties the philosophy of the constitution was negatived; for our fundamental law, unlike those of other modern democracies, was built on the non-party theory and did not contemplate party government. its architects did not foresee parties. indeed, for several years after the constitution was adopted, the term "party" was used as an expression of reproach. the correspondence of the period teems with illustrations of this important fact. for a considerable time most of the leading men of the period looked with dread upon the growing idea of political parties; and the favorite rebuke to opponents was to accuse them of being a "party" or a "faction," those designations being used interchangeably. the "farewell address" is a solemn warning against political parties[ ] almost as much as against foreign alliances. footnotes: [ ] marshall, ii, - . "the agitation had been too great to be suddenly calmed; and for the active opponents of the system [constitution] to become suddenly its friends, or even indifferent to its fate, would have been a victory of reason over passion." (_ib._; and see beard: _econ. o. j. d._, , , - .) [ ] "the effort was made to fill the legislature with the declared enemies of the government, and thus to commit it, in its infancy, to the custody of its foes." (marshall, ii, .) [ ] madison to hamilton, june , ; hamilton mss., lib. cong. madison adds this cryptic sentence: "this hint may not be unworthy of your attention." [ ] madison to washington, june , ; _writings_: hunt, v, . madison here refers to the project of calling a new federal convention for the purpose of amending the constitution or making a new one. randolph was still more apprehensive. "something is surely meditated against the new constitution more animated, forcible, and violent than a simple application for calling a convention." (randolph to madison, oct. , ; conway, .) [ ] when jefferson left virginia for france, his political fortunes were broken. (eckenrode: _r. v._, chap. viii; and dodd, - ; and ambler, - .) the mission to france at the close of the american revolution, while "an honor," was avoided rather than sought by those who were keen for career. (dodd, - .) seldom has any man achieved such a recovery as that of jefferson in the period now under review. perhaps talleyrand's rehabilitation most nearly approaches jefferson's achievement. from the depths of disfavor this genius of party management climbed to the heights of popularity and fame. [ ] jefferson to hopkinson, march , ; _works_: ford, v, . [ ] jefferson to washington, paris, dec. , ; _works_: ford, v, - . compare with jefferson's statements when the fight was on against ratifying the constitution. (see vol. i, chap. viii; also jefferson to humphreys, paris, march , ; _works_: ford, v, .) [ ] jefferson to short, dec. , ; _works_: ford, vi, . [ ] the legislature which met on the heels of the virginia constitutional convention hastened to adjourn in order that its members might attend to their harvesting. (monroe to jefferson, july , ; monroe's _writings_: hamilton, i, .) but at its autumn session, it made up for lost time in its practical display of antagonism to the nationalist movement. [ ] marshall, ii, - . throughout this chapter the terms "nationalist" and "anti-nationalist" are used instead of the customary terms "federalist" and "anti-federalist," the latter not clearly expressing the fundamental difference between the contending political forces at that particular time. [ ] carrington to madison, oct. , ; quoted in henry, ii, . [ ] _ib._, - . [ ] journal, h.d. (oct. , ), - ; see grigsby, ii, ; also see the vivid description of the debate under these resolutions in henry, ii, - . [ ] carrington to madison, oct. , ; quoted in henry, ii, . [ ] madison to randolph, oct. , ; to pendleton, oct. , ; _writings_: hunt, v, - . [ ] madison to randolph, nov. , ; _writings_: hunt, v, . [ ] see vol. i of this work. [ ] henry, ii, ; see also scott, . [ ] journal, h.d. (nov. , ), ; see also conway, ; and henry, ii, - . [ ] madison to randolph, nov. , ; _writings_: hunt, v, . [ ] monroe became a candidate against madison and it was "thought that he [would] ... carry his election." (mason to john mason, dec. , ; rowland, ii, .) but so ardent were madison's assurances of his modified nationalist views that he was elected. his majority, however, was only three hundred. (monroe to jefferson, feb. , ; monroe's _writings_: hamilton, i, .) [ ] randolph to madison, nov. , ; conway, . [ ] journal, h.d. (nov. , ), - . also see _annals_, st cong., st sess., . [ ] the nationalist substitute is pathetic in its apprehensive tone. it closes with a prayer "that almighty god in his goodness and wisdom will direct your councils to such measures as will establish our lasting peace and welfare and secure to our latest posterity the blessings of freedom; and that he will always have you in his holy keeping." (journal, h.d. (nov. , ), .) [ ] _ib._, . [ ] pennsylvania resolutions: gallatin's _writings_: adams, i, . this was unjust to new england, where rum was "the common drink of the nation" and played an interesting part in our tariff laws and new england trade. [ ] washington to marshall, nov. , ; ms., lib. cong. [ ] randolph to madison, july , ; conway, . [ ] journal, h.d. (oct. , ), . [ ] _ib._, - . [ ] _ib._, . marshall probably drew the bill that finally passed. he carried it from the house to the senate. (_ib._, .) [ ] _ib._ (oct. , ), - . whether or not a voter owned land was weighed in delicate scales. even "treating" was examined. [ ] journal, h.d. (oct. , ), - . [ ] _ib._, st sess. ( ), ; and d sess. (dec. ), - . for extent of this revision see conway, . [ ] journal, h.d. ( ), - . [ ] _ib._, . see report of the committee in this interesting case. (_ib._, .) the bill was passed. (_ib._, .) at that time divorces in virginia could be had only by an act of the legislature. contrast the above case, where the divorce was granted for cruelty, abandonment, waste of property, etc., with that of the mattauer case (_ib._ ( ), , ), where the divorce was refused for admitted infidelity on the part of the wife who bore a child by the brother of her husband while the latter was abroad. [ ] _ib._ ( ), . kentucky was then a part of virginia and legislation by the latter state was necessary. it is more than probable that marshall drew this important statute, which passed. (_ib._, , , .) [ ] journal, h.d. ( ), . at this period, lotteries were the common and favorite methods of raising money for schools, and other public institutions and enterprises. even the maintenance of cemeteries was provided for in this way. the journals of the house of delegates are full of resolutions and hening's statutes contain many acts concerning these enterprises. (see, for example, journal, h.d. ( ), - ; ( ), .) [ ] an uncommonly able state paper was laid before the house of delegates at this session. it was an arraignment of the virginia constitution of , and mercilessly exposed, without the use of direct terms, the dangerous political machine which that constitution made inevitable; it suggested "that as harmony with the federal government ... is to be desired our own constitution ought to be compared with that of the united states and retrenched where it is repugnant"; and it finally recommended that the people instruct their representatives in the legislature to take the steps for reform. the author of this admirable petition is unknown. (journal, h.d. ( ), .) from this previous vote for a new constitution, it is probable that marshall warmly supported this resolution. but the friends of the old and vicious system instantly proposed an amendment "that the foregoing statement contains principles repugnant to republican government and dangerous to the freedom of this country, and, therefore, ought not to meet with the approbation of this house or be recommended to the consideration of the people"; and so strong were they that the whole subject was dropped by postponement, without further contest. (journal, h.d. ( ), - .) [ ] _ib._ (nov. , ), . [ ] _ib._ (nov. , ), . [ ] _ib._ (nov. , ), . [ ] _ib._ (nov. , ), . the james river company was formed in . washington was its first president. (randolph to washington, aug. , ; conway, .) marshall's account book shows many payments on stock in this company. [ ] journal, h.d. ( ), , . for many years after the constitution was adopted the united states senate sat behind closed doors. the virginia legislature continued to demand public debate in the national senate until that reform was accomplished. (see journal, h.d. (oct. , ), ; (nov. , ), , etc.) in the nationalists were much stronger in the legislatures of the other states than they had been in the preceding year. only three states had answered virginia's belated letter proposing a new federal convention to amend the constitution. disgusted and despondent, henry quitted his seat in the house of delegates in the latter part of november and went home in a sulk. (henry, ii, - ; conway, .) [ ] journal, h.d. ( ), , , . [ ] _ib._, - . [ ] _ib._, - . [ ] journal, h.d. ( ), . [ ] _ib._, . [ ] _ib._, . the objections were that the liberty of the press, trial by jury, freedom of speech, the right of the people to assemble, consult, and "to instruct their representatives," were not guaranteed; and in general, that the amendments submitted "fall short of affording security to personal rights." (senate journal, december , ; ms., va. st. lib.) [ ] _annals_, st cong., st sess., ; and see entire debate. the amendments were offered as a measure of prudence to mollify the disaffected. (rives, iii, - .) [ ] the house agreed to seventeen amendments. but the senate reduced these to twelve, which were submitted to the states. the first of these provided for an increase of the representation in the house; the second provided that no law "varying" the salaries of senators or representatives "shall take effect until an election of representatives shall have intervened." (_annals_, st cong., st sess., appendix to ii, .) the states ratified only the last ten. (for good condensed treatment of the subject see hildreth, iv, - .) thus the tenth amendment, as ratified, was the twelfth as submitted and is sometimes referred to by the latter number in the documents and correspondence of - , as in jefferson's "opinion on the constitutionality of the bank of the united states." (see _infra_.) new york, virginia, maryland, south carolina, north carolina, and rhode island accepted the twelve amendments as proposed. the other states rejected one or both of the first two amendments. [ ] randolph to madison, june , ; conway, . [ ] see beard: _econ. o. j. d._, . [ ] _ib._, . [ ] _ib._, - . [ ] marshall, ii, . [ ] money was exceedingly scarce. even washington had to borrow to travel to new york for his inauguration, and patrick henry could not attend the federal constitutional convention for want of cash. (conway, .) [ ] "first report on the public credit"; _works_: lodge, ii, _et seq._ the above analysis, while not technically precise, is sufficiently accurate to give a rough idea of hamilton's plan. (see marshall's analysis; marshall, ii, - .) [ ] this, indeed, was a portion of hamilton's plan and he succeeded in it as he did in other parts of his broad purpose to combine as much strength as possible in support of the national government. "the northern states and the commercial and monied people are zealously attached to ... the new government." (wolcott to his father, feb. , ; gibbs, i, .) [ ] this was emphatically true. from the national point of view it was the best feature of hamilton's plan. [ ] in his old age, john adams, hamilton's most venomous and unforgiving enemy, while unsparing in his personal abuse, paid high tribute to the wisdom and necessity of hamilton's financial statesmanship. "i know not," writes adams, "how hamilton could have done otherwise." (adams to rush, aug. , ; _old family letters_, .) "the sudden rise of public securities, after the establishment of the funding system was no misfortune to the public but an advantage. the necessity of that system arose from the inconsistency of the people in contracting debts and then refusing to pay them." (same to same, jan. , ; _ib._, .) fisher ames thus states the different interests of the sections: "the funding system, they [southern members of congress] say, is in favor of the moneyed interest--oppressive to the land; that is, favorable to us [northern people], hard on them. they pay tribute, they say, and the middle and eastern people ... receive it. and here is the burden of the song, almost all the little [certificates of state or continental debts] that they had and which cost them twenty shillings, for supplies or services, has been bought up, at a low rate, and now they pay more tax towards the interest than they received for the paper. this _tribute_, they say, is aggravating." (ames to minot, nov. , ; _works_: ames, i, .) [ ] marshall, ii, . the attack on hamilton's financial plan and especially on assumption was the beginning of the definite organization of the republican party. (washington's _diary_: lossing, .) [ ] gore to king, july , ; king, i, ; and see mcmaster, ii, . [ ] at one time, when it appeared that assumption was defeated, sedgwick of massachusetts intimated that his section might secede. (_annals_, st cong., april , , pp. - ; and see rives, iii, _et seq._) [ ] marshall's statement of the debate is the best and fairest brief account of this historic conflict. (see marshall, ii, - . see entire debate in _annals_, st cong., i, ii, under caption "public debt.") [ ] "this despicable grog-shop contest, whether the taverns of new york or philadelphia shall get the custom of congress, keeps us in discord and covers us all with disgrace." (ames to dwight, june , ; _works_: ames, i, .) [ ] jefferson to monroe, june , ; _works_: ford, vi, - ; and see _ib._, ; to gilmer, june , _ib._, ; to rutledge, july , _ib._, - ; to harvie, july , _ib._, . [ ] _ib._; and see also jefferson to eppes, july , _ib._, ; to randolph, march , _ib._, ; to same, april , _ib._, ; to lee, april , _ib._, ; to mason, june , _ib._, ; to randolph, june , _ib._, - ; to monroe, june , _ib._, ; to dumas, june , _ib._, ; to rutledge, july , _ib._, - ; to dumas, july , _ib._, . compare these letters with jefferson's statement, february, ; _ib._, vii, - ; and with the "anas," _ib._, i, - . jefferson then declared that "i was really a stranger to the whole subject." (_ib._, .) [ ] jefferson's statement; _works_: ford, vii, - , and i, - . [ ] gibbs, i, ; and see marshall, ii, - . [ ] henry, ii, . but marshall says that more votes would have changed had that been necessary to consummate the bargain. (see marshall, ii, footnote to .) [ ] _ib._, . [ ] marshall, ii, - . [ ] henry, ii, - . [ ] journal, h.d. ( ), . [ ] journal, h.d. ( ), . [ ] _ib._ [ ] _ib._, - . [ ] journal, h.d. ( ), - ; and see _am. st. prs., finance_, i, - . the economic distinction is here clearly drawn. jefferson, who later made this a chief part of his attack, had not yet raised the point. [ ] ames to minot, feb. , ; _works_: ames, i, . [ ] this was the sentence which declared that hamilton's reasoning would result in "fictitious wealth through a paper medium," referring to his plan for making the transferable certificates of the national debt serve as currency. [ ] journal, h.d. ( ), . [ ] hamilton to jay, nov. , ; _works_: lodge, ix, - . virginia was becoming very hostile to the new government. first, there was a report that congress was about to emancipate the slaves. then came the news of the assumption of the state debts, with the presence in virginia of speculators from other states buying up state securities; and this added gall to the bitter cup which virginians felt the national government was forcing them to drink. finally the tidings that the senate had defeated the motion for public sessions inflamed the public mind still more. (stuart to washington, june , ; _writings_: ford, xi, footnote to .) even close friends of washington deeply deplored a "spirit so subversive of the true principles of the constitution.... if mr. henry has sufficient boldness to aim the blow at its [constitution's] existence, which he has threatened, i think he can never meet with a more favorable opportunity if the assumption should take place." (_ib._) washington replied that stuart's letter pained him. "the public mind in virginia ... seems to be more irritable, sour, and discontented than ... it is in any other state in the union except massachusetts." (washington to stuart, june , ; _ib._, - .) marshall's father most inaccurately reported to washington that kentucky favored the measures of the administration; and the president, thanking him for the welcome news, asked the elder marshall for "any information of a public or private nature ... from your district." (washington to thomas marshall, feb., ; washington's letter book, ms., lib. cong.) kentucky was at that time in strong opposition and this continued to grow. [ ] taylor's "an enquiry, etc.," as quoted in beard: _econ. o. j. d._, . (_ib._, chap. vii.) taylor's pamphlet was revised by pendleton and then sent to madison before publication. (monroe to madison, may , ; monroe's _writings_: hamilton, i, .) taylor wanted "banks ... demolished" and bankers "excluded from public councils." (beard: _econ. o. j. d._, .) [ ] marshall, ii, . [ ] in jefferson's letters, already cited, not the faintest suggestion appears that he thought the law unconstitutional. not until patrick henry's resolution, and the address of the virginia legislature to congress based thereon, made the point that assumption was in violation of this instrument, because the power to pass such a law was not expressly given in the constitution, did jefferson take his stand against implied powers. [ ] "whether ... right or wrong, abstractedly, more attention should be paid to the general opinion." (jefferson to mason, feb. , ; _works_: ford, vi, .) [ ] monroe had advised madison of the hostility of virginia to assumption and incidentally asked for an office for his own brother-in-law. (monroe to madison, july , ; monroe's _writings_: hamilton, i, ; and see monroe to jefferson, july , ; _ib._, .) [ ] anderson, . [ ] jefferson himself, a year after he helped pass the assumption act, had in a cabinet paper fiercely attacked hamilton's plan; and the latter answered in a formal statement to the president. these two documents are the ablest summaries of the opposing sides of this great controversy. (see jefferson to president, may , ; _works_: ford, vi, - ; and hamilton to washington, aug. , ; _works_: lodge, ii, - .) [ ] ames to minot, march , ; _works_: ames, i, . [ ] tenth amendment, as ratified. [ ] "opinion on the constitutionality of a national bank of the united states"; _works_: ford, vi, ; and see madison's argument against the constitutionality of the bank act in _annals_, st cong., feb. , , pp. - ; feb. , - ; also, _writings_: hunt, vi, - . this argument best shows madison's sudden and radical change from an extreme nationalist to an advocate of the most restricted national powers. [ ] hamilton's "opinion as to the constitutionality of the bank of the united states"; _works_: lodge, iii, - . adams took the same view. (see adams to rush, dec. , ; _old family letters_, .) [ ] "opinion as to the constitutionality of the bank of the united states"; _works_: lodge, iii, - . washington was sorely perplexed by the controversy and was on the point of vetoing the bank bill. (see rives, iii, - .) [ ] marshall, ii, - . [ ] ames to dwight, jan. , ; _works_: ames, i, - . [ ] "a candid state of parties"--_national gazette_, sept. , . [ ] "i was no party man myself and the first wish of my heart was, if parties did exist, to reconcile them." (washington to jefferson, july , ; _writings_: ford, xiii, .) chapter iii leading the virginia federalists i think nothing better could be done than to make him [marshall] a judge. (jefferson to madison, june , .) to doubt the holiness of the french cause was the certain road to odium and proscription. (alexander graydon.) the trouble and perplexities have worn away my mind. (washington.) in richmond, marshall was growing ever stronger in his belief in nationalism. hamilton's immortal plea for a vital interpretation of the fundamental law of the nation and his demonstration of the constitutionality of extensive implied powers was a clear, compact statement of what marshall himself had been thinking. the time was coming when he would announce it in language still more lucid, expressive of a reasoning even more convincing. upon hamilton's constitutional doctrine john marshall was to place the seal of finality.[ ] but marshall did not delay until that great hour to declare his nationalist opinions. not only did he fight for them in the house of delegates; but in his club at farmicola's tavern, on the street corners, riding the circuit, he argued for the constitutionality and wisdom of those measures of washington's administration which strengthened and broadened the powers of the national government.[ ] although he spoke his mind, in and out of season, for a cause increasingly unpopular, marshall, as yet, lost little favor with the people. at a time when political controversy severed friendship and interrupted social relations,[ ] his personality still held sway over his associates regardless of their political convictions. even mason, the ultra-radical foe of broad national powers, wrote, at this heated juncture, that marshall "is an intimate friend of mine."[ ] his winning frankness, easy manner, and warm-heartedness saved him from that dislike which his bold views otherwise would have created. "independent principles, talents, and integrity are denounced [in virginia] as badges of aristocracy; but if you add to these good manners and a decent appearance, his political death is decreed without the benefit of a hearing," testifies francis corbin.[ ] "independent principles, talents, and integrity" marshall possessed in fullest measure, as all admitted; but his manners were far from those which men like the modish corbin called "good," and his appearance would not have passed muster under the critical eye of that fastidious and disgruntled young federalist. we shall soon hear jefferson denouncing marshall's deportment as the artifice of a cunning and hypocritical craft. as yet, however, jefferson saw in marshall only an extremely popular young man who was fast becoming the most effective supporter in virginia of the national government. in the year of the bank act, jefferson and madison went on their eventful "vacation," swinging up the hudson and through new england. during this journey jefferson drew around madison "the magic circle" of his compelling charm and won entirely to the extreme republican cause[ ] the invaluable aid of that superb intellect. in agreement as to common warfare upon the nationalist measures of the administration,[ ] the two undoubtedly talked over the virginia federalists.[ ] marshall's repeated successes at the polls with a constituency hostile to the young lawyer's views particularly impressed them. might not marshall become a candidate for congress? if elected, here would be a skillful, dauntless, and captivating supporter of all nationalist measures in the house of representatives. what should be done to avert this misfortune? jefferson's dexterous intellect devised the idea of getting rid of marshall, politically, by depositing him on the innocuous heights of the state bench. better, far better, to make marshall a virginia judge than to permit him to become a virginia representative in congress. so, upon his return, jefferson wrote to madison:-- "i learn that he [hamilton] has expressed the strongest desire that marshall should come into congress from richmond, declaring that there is no man in virginia whom he wishes so much to see there; and i am told that marshall has expressed half a mind to come. hence i conclude that hamilton has plyed him well with flattery & sollicitation and i think nothing better could be done than to make him a judge."[ ] hamilton's "plying" marshall with "flattery & solicitation" occurred only in jefferson's teeming, but abnormally suspicious, mind. marshall was in virginia all this time, as his account book proves, while hamilton was in new york, and no letters seem to have passed between them.[ ] but jefferson's information that his fellow secretary wished the nationalist richmond attorney in congress was probably correct. accounts of marshall's striking ability and of his fearless zeal in support of the administration's measures had undoubtedly reached hamilton, perhaps through washington himself; and so sturdy and capable a federalist in congress from virginia would have been of great strategic value. but jefferson might have spared his pains to dispose of marshall by cloistering him on the state bench. nothing could have induced the busy lawyer to go to congress at this period. it would have been fatal to his law practice[ ] which he had built up until it was the largest in richmond and upon the returns from which his increasing family depended for support. six years later, washington himself labored with marshall for four days before he could persuade him to stand for the national house, and marshall then yielded to his adored leader only as a matter of duty, at one of the nation's most critical hours, when war was on the horizon.[ ] the break-up of washington's cabinet was now approaching. jefferson was keeping pace with the anti-nationalist sentiment of the masses--drilling his followers into a sternly ordered political force. "the discipline of the [republican] party," wrote ames, "is as severe as the prussian."[ ] jefferson and madison had secured an organ in the "national gazette,"[ ] edited by freneau, whom jefferson employed as translator in the state department. through this paper jefferson attacked hamilton without mercy. the spirited secretary of the treasury keenly resented the opposition of his cabinet associate which was at once covert and open. in vain the president pathetically begged jefferson for harmony and peace.[ ] jefferson responded with a bitter attack on hamilton. "i was duped," said he, "by the secretary of the treasury and made a tool for forwarding his schemes, not then sufficiently understood by me."[ ] to somewhat, but not much, better purpose did washington ask hamilton for "mutual forbearances."[ ] hamilton replied with spirit, yet pledged his honor that he would "not, directly or indirectly, say or do a thing that shall endanger a feud."[ ] the immense speculation, which had unavoidably grown out of the assumption and funding acts, inflamed popular resentment against the whole financial statesmanship of the federalists.[ ] more material, this, for the hands of the artificer who was fashioning the republican party into a capacious vessel into which the people might pour all their discontent, all their fears, all their woes and all their hopes. and jefferson, with practical skill, used for that purpose whatever material he could find. still more potter's earth was brought to jefferson. the national courts were at work. creditors were securing judgments for debts long due them. in virginia the debtors of british merchants, who for many years had been rendered immune from payment, were brought to the bar of this "alien" tribunal. popular feeling ran high. a resolution was introduced into the house of delegates requesting the virginia senators and representatives in congress to "adopt such measures as will tend, not only to suspend all executions and the proceedings thereon, but prevent any future judgments to be given by the federal courts in favor of british creditors until" great britain surrendered the posts and runaway negroes.[ ] thus was the practical overthrow of the national judiciary proposed.[ ] nor was this all. a state had been haled before a national court.[ ] the republicans saw in this the monster "consolidation." the virginia legislature passed a resolution instructing her senators and representatives to "unite their utmost and earliest exertions" to secure a constitutional amendment preventing a state from being sued "in any court of the united states."[ ] the hostility to the national bank took the form of a resolution against a director or stockholder of the bank of the united states being a senator or representative in congress.[ ] but apparently this trod upon the toes of too many ambitious virginians, for the word "stockholders" was stricken out.[ ] the slander that the treasury department had misused the public funds had been thoroughly answered;[ ] but the legislature of virginia by a majority of out of a total vote of , applauded her senators and representatives who had urged the inquiry.[ ] such was the developing temper of republicanism as revealed by the emotionless pages of the public records; but these furnish scarcely a hint of the violence of public opinion. jefferson was now becoming tigerish in his assaults on the measures of the administration. many members of congress had been holders of certificates which assumption and funding had made valuable. most but not all of them had voted for every feature of hamilton's financial plan.[ ] three or four were directors of the bank, but no dishonesty existed.[ ] heavy speculation went on in philadelphia.[ ] this, said republicans, was the fruit which hamilton's nationalist financial scheme gathered from the people's industry to feed to "monocrats." "here [philadelphia]," wrote jefferson, "_the unmonied farmer_ ... his cattle & corps [_sic_] are no more thought of than if they did not feed us. script & stock are food & raiment here.... the credit & fate of the nation seem to hang on the desperate throws & plunges of gambling scoundrels."[ ] but jefferson comforted himself with the prophecy that "this nefarious business" would finally "tumble its authors headlong from their heights."[ ] the national law taxing whiskey particularly aroused the wrath of the multitude. here it was at last!--a direct tax laid upon the universal drink of the people, as the razor-edged pennsylvania resolutions declared.[ ] here it was, just as the patriotic foes of the abominable national constitution had predicted when fighting the ratification of that "oppressive" instrument. here was the exciseman at every man's door, just as henry and mason and grayson had foretold--and few were the doors in the back counties of the states behind which the owner's private still was not simmering.[ ] and why was this tribute exacted? to provide funds required by the corrupt assumption and funding laws, asserted the agitators. again it was the national government that was to blame; in laying the whiskey tax it had invaded the rights of the states, hotly declared the republicans. "all that powerful party," marshall bears witness, "which attached itself to the local [state] rather than to the general [national] government ... considered ... a tax by congress on any domestic manufacture as the intrusion of a foreign power into their particular concerns which excited serious apprehensions for state importance and for liberty."[ ] the tariff did not affect most people, especially those in the back country, because they used few or no imported articles; but the whiskey tax did reach them, directly and personally.[ ] should such a despotic law be obeyed? never! it was oppressive! it was wicked! above all, it was "unconstitutional"! but what to do! the agencies of the detested and detestable national government were at work! to arms, then! that was the only thing left to outraged freemen about to be ravaged of their liberty![ ] thus came the physical defiance of the law in pennsylvania; washington's third proclamation[ ] demanding obedience to the national statutes after his earnest pleas[ ] to the disaffected to observe the laws; the march of the troops accompanied by hamilton[ ] against the insurgents; the forcible suppression of this first armed assault on the laws of the united states in which men had been killed, houses burned, mails pillaged--all in the name of the constitution,[ ] which the republicans now claimed as their peculiar property.[ ] foremost in the fight for the whiskey insurgents were the democratic societies, which, as has been seen, were the offspring of the french jacobin clubs. washington finally became certain that these organizations had inspired this uprising against national law and authority. while the whiskey rebellion was economic in its origin, yet it was sustained by the spirit which the french revolution had kindled in the popular heart. indeed, when the troops sent to put down the insurrection reached harrisburg, they found the french flag flying over the courthouse.[ ] marshall's old comrade in the revolution, close personal friend, and business partner,[ ] henry lee, was now governor of virginia. he stood militantly with washington and it was due to lee's efforts that the virginia militia responded to help suppress the whiskey rebellion. he was made commander-in-chief of all the forces that actually took the field.[ ] to lee, therefore, washington wrote with unrestrained pen. "i consider," said the president, "this insurrection as the first _formidable_ fruit of the democratic societies ... instituted by ... _artful and designing_ members [of congress] ... to sow the seeds of jealousy and distrust among the people of the government.... i see, under a display of popular and fascinating guises, the most diabolical attempts to destroy ... the government."[ ] he declared: "that they have been the fomenters of the western disturbances admits of no doubt."[ ] never was that emphatic man more decided than now; he was sure, he said, that, unless lawlessness were overcome, republican government was at an end, "and nothing but anarchy and confusion is to be expected hereafter."[ ] if "the daring and factious spirit" is not crushed, "adieu to all government in this country, except mob and club government."[ ] such were washington's positive and settled opinions, and they were adopted and maintained by marshall, his faithful supporter. and not only by argument and speech did marshall uphold the measures of washington's administration. in he had been commissioned as brigadier-general of militia, and when the president's requisition came for virginia troops to enforce the national revenue law against those who were violently resisting the execution of it, he was placed in command of one of the detachments to be raised for that purpose.[ ] although it is not established that his brigade was ordered to pennsylvania, the probabilities are that it was and that marshall, in command of it, was on the scene of the first armed opposition to the national government. and it is certain that marshall was busy and effective in the work of raising and properly equipping the troops for duty. he suggested practical plans for expediting the muster and for economizing the expenditure of the public money, and his judgment was highly valued.[ ] all the ability, experience, and zeal at the disposal of the state were necessary, for the whiskey tax was only less disliked in virginia than in pennsylvania, and a portion of the commonwealth was inclined to assist rather than to suppress the insurrection.[ ] whether or not he was one of the military force that, on the ground, overawed the whiskey insurgents, it is positively established that marshall was ready, in person, to help put down with arms all forcible opposition to the national laws and authority. jefferson, now the recognized commander-in-chief of the new party, was, however, heartily with the popular outbreak. he had approved washington's first proclamations against the whiskey producers;[ ] but, nevertheless, as the anger of the people grew, it found jefferson responsive. "the excise law is an infernal one," he cried; the rebellion against it, nothing more than "riotous" at the worst.[ ] and jefferson wielded his verbal cat-o'-nine-tails on washington's order to put the rebellion down by armed forces.[ ] it was all "for the favorite purpose of strengthening government and increasing public debt."[ ] washington thought the whiskey rebellion treasonable; and jefferson admitted that "there was ... a meeting to consult about a separation" from the union; but talking was not acting.[ ] thus the very point was raised which marshall enforced in the burr trial twelve years later, when jefferson took exactly opposite grounds. but to take the popular view now made for republican solidarity and strength. criticism is ever more profitable politics than building. all this had different effects on different public men. the republican party was ever growing stronger, and under jefferson's skillful guidance, was fast becoming a seasoned political army. the sentiment of the multitude against the national government continued to rise. but instead of weakening john marshall's nationalist principles, this turbulent opposition strengthened and hardened them. so did other and larger events of that period which tumultuously crowded fast upon one another's heels. as we have seen, the horrors of the reign of terror in paris did not chill the frenzied enthusiasm of the masses of americans for france. "by a strange kind of reasoning," wrote oliver wolcott to his brother, "some suppose the liberties of america depend on the right of cutting throats in france."[ ] in the spring of france declared war against england. the popular heart in america was hot for france, the popular voice loud against england. the idea that the united states was an independent nation standing aloof from foreign quarrels did not enter the minds of the people. but it was washington's one great conception. it was not to make the american people the tool of any foreign government that he had drawn his sword for their independence. it was to found a separate nation with dignity and rights equal to those of any other nation; a nation friendly to all, and allied with none[ ]--this was the supreme purpose for which he had fought, toiled, and suffered. and washington believed that only on this broad highway could the american people travel to ultimate happiness and power.[ ] he determined upon a policy of absolute impartiality. on the same day that the minister of the new french republic landed on american shores, washington proclaimed neutrality.[ ] this action, which to-day all admit to have been wise and far-seeing statesmanship, then caused an outburst of popular resentment against neutrality and the administration that had dared to take this impartial stand. for the first time washington was openly abused by americans.[ ] "a great majority of the american people deemed it criminal to remain unconcerned spectators of a conflict between their ancient enemy [great britain] and republican france," declares marshall. the people, he writes, thought great britain was waging war "with the sole purpose of imposing a monarchical government on the french people. the few who did not embrace these opinions, and they were certainly very few, were held up as objects of public detestation; and were calumniated as the tools of britain and the satellites of despotism."[ ] the national government was ungrateful, cried the popular voice; it was aiding the tyrants of europe against a people struggling for freedom; it was cowardly, infamous, base. "could any friend of his kind be neutral?" was the question on the popular tongue; of course not! unless, indeed, the miscreant who dared to be exclusively american was a monarchist at heart. "to doubt the holiness of their [the french] cause was the certain road to odium and proscription," testifies an observer.[ ] the republican press, following paine's theory, attacked "all governments, including that of the united states, as naturally hostile to the liberty of the people," asserts marshall.[ ] few were the friends of neutrality outside of the trading and shipping interests.[ ] jefferson, although still in washington's cabinet, spoke of "the pusillanimity of the proclamation"[ ] and of "the sneaking neutrality" it set up.[ ] "in every effort made by the executive to maintain the neutrality of the united states," writes marshall, "that great party [republican] which denominated itself 'the people' could perceive only a settled hostility to france and to liberty."[ ] and, of course, washington's proclamation of neutrality was "unconstitutional," shouted the republican politicians. hamilton quickly answered. the power to deal with foreign affairs was, he said, lodged somewhere in the national government. where, then? plainly not in the legislative or judicial branches, but in the executive department, which is "the _organ_ of intercourse between the nation and foreign nations" and "the _interpreter_ of ... treaties in those cases in which the judiciary is not competent--that is between government and government.... the _executive power_ of the united states is completely lodged in the president," with only those exceptions made by the constitution, as that of declaring war. but if it is the right of congress to declare war, "it is the duty of the executive to preserve peace till the declaration is made."[ ] washington's refusal to take sides in the european war was still more fuel for the republican furnace. the bill to maintain neutrality escaped defeat in congress by a dangerously narrow margin: on amendments and motions in the senate it was rescued time and again only by the deciding vote of the vice-president.[ ] in the house, resolutions were introduced which, in the perspective of history, were stupid. public speakers searched for expressions strong enough for the popular taste; the newspapers blazed with denunciation. "the artillery of the press," declares marshall, "was played with unceasing fury on" the supporters of neutrality; "and the democratic societies brought their whole force into operation. language will scarcely afford terms of greater outrage, than were employed against those who sought to stem the torrent of public opinion and to moderate the rage of the moment."[ ] at the most effective hour, politically, jefferson resigned[ ] from the cabinet, as he had declared, two years before, he intended to do.[ ] he had prepared well for popular leadership. his stinging criticism of the nationalist financial measures, his warm championship of france, his bitter hostility to great britain, and most of all, his advocacy of the popular view of the constitution, secured him the favor of the people. had he remained secretary of state, he would have found himself in a hazardous political situation. but now, freed from restraint, he could openly lead the republican forces which so eagerly awaited his formal command.[ ] as in the struggle for the constitution, so now neutrality was saved by the combined efforts of the mercantile and financial interests who dreaded the effect of the war on business and credit;[ ] and by the disinterested support of those who wished the united states to become a nation, distinct from, unconnected with, and unsubservient to any other government. among these latter was john marshall, although he also held the view of the commercial classes from which most of his best clients came; and his personal loyalty to washington strengthened his opinions. hot as virginia was against the administration, marshall was equally hot in its favor. although he was the most prudent of men, and in virginia silence was the part of discretion for those who approved washington's course, marshall would not be still. he made speeches in support of washington's stand, wrote pamphlets, and appealed in every possible way to the solid reason and genuine americanism of his neighbors. he had, of course, read hamilton's great defense of neutrality; and he asserted that sound national policy required neutrality and that it was the duty of the president to proclaim and enforce it. over and over again, by tongue and pen, he demonstrated the constitutional right of the executive to institute and maintain the nation's attitude of aloofness from foreign belligerents.[ ] marshall rallied the friends of the administration, not only in richmond, but elsewhere in virginia. "the [administration] party in richmond was soon set in motion," monroe reported to jefferson; "from what i have understood here [i] have reason to believe they mean to produce the most extensive effect they are capable of. m^r. marshall has written g. jones[ ] on the subject and the first appearances threatened the most furious attack on the french minister [genêt]."[ ] at last marshall's personal popularity could no longer save him from open and public attack. the enraged republicans assailed him in pamphlets; he was criticized in the newspapers; his character was impugned.[ ] he was branded with what, in virginia, was at that time the ultimate reproach: marshall, said the republicans, was the friend and follower of alexander hamilton, the monarchist, the financial manipulator, the father of assumption, the inventor of the rotten funding system, the designer of the stock-jobbing bank of the united states, and, worst of all, the champion of a powerful nationalism and the implacable foe of the sovereignty of the states. spiritedly marshall made reply. he was, indeed, a disciple of washington's great secretary of the treasury, he said, and proud of it; and he gloried in his fealty to washington, for which also he had been blamed. in short, marshall was aggressively for the administration and all its measures. these were right, he said, and wise and necessary. above all, since that was the chief ground of attack, all of them, from assumption to neutrality, were plainly constitutional. at a public meeting at richmond, marshall offered resolutions which he had drawn up in support of the administration's foreign policy, spoke in their favor, and carried the meeting for them by a heavy majority.[ ] marshall's bold course cost him the proffer of an honor. our strained relations with the spaniards required an alert, able, and cool-headed representative to go to new orleans. jefferson[ ] confided to madison the task of finding such a man in virginia. "my imagination has hunted thro' this whole state," madison advised the secretary of state in reply, "without being able to find a single character fitted for the mission to n. o. young marshall seems to possess some of the qualifications, but there would be objections of several sorts to him."[ ] three months later madison revealed one of these "several objections" to marshall; but the principal one was his sturdy, fighting nationalism. this "objection" was so intense that anybody who was even a close friend of marshall was suspected and proscribed by the republicans. the jacobin clubs of paris were scarcely more intolerant than their disciples in america. so irritated, indeed, were the republican leaders by marshall's political efforts in support of neutrality and other policies of the administration, that they began to hint at improper motives. with his brother, brother-in-law, and general henry lee (then governor of virginia) marshall had purchased the fairfax estate.[ ] this was evidence, said the republicans, that he was the tool of the wicked financial interests. madison hastened to inform jefferson. "the circumstances which derogate from full confidence in w[ilson] n[icholas]," cautioned madison, "are ... his connection & intimacy with marshall, of whose _disinterestedness_ as well as understanding he has the highest opinion. it is said that marshall, who is at the head of the great purchase from fairfax, has lately obtained pecuniary aids from the bank [of the united states] or people connected with it. i think it certain that he must have felt, in the moment of purchase, an absolute confidence in the monied interests which will explain him to everyone that reflects in the active character he is assuming."[ ] in such fashion do the exigencies of politics generate suspicion and false witness. marshall received no money from the bank for the fairfax purchase and it tied him to "the monied interests" in no way except through business sympathy. he relied for help on his brother's father-in-law, robert morris, who expected to raise the funds for the fairfax purchase from loans negotiated in europe on the security of morris's immense real-estate holdings in america.[ ] but even the once poised, charitable, and unsuspicious madison had now acquired that state of mind which beholds in any business transaction, no matter how innocent, something furtive and sinister. his letter proves, however, that the fearless richmond lawyer was making himself effectively felt as a practical power for washington's administration, to the serious discomfort of the republican chieftains. while marshall was beloved by most of those who knew him and was astonishingly popular with the masses, jealousy of his ability and success had made remorseless enemies for him. it appears, indeed, that a peculiarly malicious envy had pursued him almost from the time he had gone to william and mary college. his sister-in-law, with hot resentment, emphasizes this feature of marshall's career. "notwithstanding his amiable and correct conduct," writes mrs. carrington, "there were those who would catch at the most trifling circumstance to throw a shade over his fair fame." he had little education, said his detractors; "his talents were greatly overrated"; his habits were bad. "tho' no man living ever had more ardent friends, yet there does not exist one who had at one time more slanderous enemies."[ ] these now assailed marshall with all their pent-up hatred. they stopped at no charge, hesitated at no insinuation. for instance, his conviviality was magnified into reports of excesses and the tale was carried to the president. "it was cruelly insinuated to g[eorge] w[ashington]," writes marshall's sister-in-law, "by an after great s[olo?]n that to mr. m[arsha]lls fondness for play was added an increasing fondness for liquor." mrs. carrington loyally defends marshall, testifying, from her personal knowledge, that "this s----n knew better than most others how mr. m----ll always played for amusement and never, never for gain, and that he was, of all men, the most temperate."[ ] considering the custom of the time[ ] and the habits of the foremost men of that period,[ ] marshall's sister-in-law is entirely accurate. certainly this political slander did not impress washington, for his confidence in marshall grew steadily; and, as we shall presently see, he continued to tender marshall high honors and confide to him political tasks requiring delicate judgment. such petty falsehoods did not disturb marshall's composure. but he warmly resented the assault made upon him because of his friendship for hamilton; and his anger was hot against what he felt was the sheer dishonesty of the attacks on the measures of the national government. "i wish very much to see you," writes marshall to archibald stuart at this time: "i want to observe [illegible] how much honest men you and i are [illegible] half our acquaintance. seriously there appears to me every day to be more folly, envy, malice, and damn rascality in the world than there was the day before and i do verily begin to think that plain downright honesty and unintriguing integrity will be kicked out of doors."[ ] a picturesque incident gave to the virginia opponents of washington's administration more substantial cause to hate marshall than his pamphlets, speeches, and resolutions had afforded. at smithfield, not far from norfolk, the ship unicorn was fitting out as a french privateer. the people of isle of wight county were almost unanimous in their sympathy with the project, and only seven or eight men could be procured to assist the united states marshal in seizing and holding the vessel.[ ] twenty-five soldiers and three officers were sent from norfolk in a revenue cutter;[ ] but the governor, considering this force insufficient to outface resistance and take the ship, dispatched marshall, with a considerable body of militia, to smithfield. evidently the affair was believed to be serious; "the particular orders ... to brigadier general marshall" placed under his command forces of cavalry, infantry, and artillery from richmond and another body of troops from petersburg. the governor assures marshall that "the executive know that in your hands the dignity and rights of the commonwealth will ever be safe and they are also sure that prudence, affection to our deluded fellow citizens, and marked obedience to law in the means you will be compelled to adopt, will equally characterize every step of your procedure." he is directed to "collect every information respecting this daring violation of order," and particularly "the conduct of the lieutenant colonel commandant of isle of wight," who had disregarded his instructions.[ ] clad in the uniform of a brigadier-general of the virginia militia,[ ] marshall set out for smithfield riding at the head of the cavalry, the light infantry and artillery following by boat.[ ] he found all thought of resistance abandoned upon his arrival. a "peaceable search" of captain sinclair's house revealed thirteen cannon with ball, grape-shot, and powder. three more pieces of ordnance were stationed on the shore. before general marshall and his cavalry arrived, the united states marshal had been insulted, and threatened with violence. men had been heard loading muskets in sinclair's house, and fifteen of these weapons, fully charged, were discovered. the house so "completely commanded the deck of the" unicorn "that ... one hundred men placed in the vessel could not have protected her ten minutes from fifteen placed in the house."[ ] the state and federal officers had previously been able to get little aid of any kind, but "since the arrival of distant militia," reports marshall, "those of the county are as prompt as could be wished in rendering any service required of them," and he suggests that the commandant of the county, rather than the men, was responsible for the failure to act earlier. he at once sent messengers to the infantry and artillery detachment which had not yet arrived, with orders that they return to richmond and petersburg.[ ] marshall "had ... frequent conversations with individuals of the isle of wight" and found them much distressed at the necessity for calling distant militia "to protect from violence the laws of our common country.... the commanding officers [of the county] ... seem not to have become sufficiently impressed with the importance of maintaining the sovereignty of the law" says marshall, but with unwarranted optimism he believes "that a more proper mode of thinking is beginning to prevail."[ ] thus was the smithfield defiance of neutrality and the national laws quelled by strong measures, taken before it had gathered dangerous headway. "i am very much indebted to brig.-gen'l marshall and major taylor[ ] for their exertions in the execution of my orders," writes governor lee to the secretary of war.[ ] but the efforts of the national government and the action of governor lee in virginia to enforce obedience to national laws and observance of neutrality, while they succeeded locally in their immediate purpose, did not modify the public temper toward the administration. neutrality, in particular, grew in disfavor among the people. when the congressional elections of came on, all complaints against the national government were vivified by that burning question. as if, said the republicans, there could be such a status as neutrality between "right and wrong," between "liberty" and "tyranny."[ ] thus, in the campaign, the republicans made the french cause their own. everything that washington's administration had accomplished was wrong, said the republicans, but neutrality was the work of the evil one. the same national power which had dared to issue this "edict" against american support of french "liberty" had foisted on the people assumption, national courts, and taxes on whiskey. this identical nationalist crew had, said the republicans, by funding and national banks, fostered, nay, created, stock-jobbing and speculation by which the few "monocrats" were made rich, while the many remained poor. thus every republican candidate for congress became a knight of the flaming sword, warring upon all evil, but especially and for the moment against the dragon of neutrality that the national government had uncaged to help the monarchs of europe destroy free government in france.[ ] chiefly on that question the republicans won the national house of representatives. but if neutrality lit the flames of public wrath, washington's next act in foreign affairs was powder and oil cast upon fires already fiercely burning. great britain, by her war measures against france, did not spare america. she seized hundreds of american vessels trading with her enemy and even with neutrals; in order to starve france[ ] she lifted cargoes from american bottoms; to man her warships she forcibly took sailors from american ships, "often leaving scarcely hands enough to navigate the vessel into port";[ ] she conducted herself as if she were not only mistress of the seas, but their sole proprietor. and the british depredations were committed in a manner harsh, brutal, and insulting. even marshall was aroused and wrote to his friend stuart: "we fear, not without reason, a war. the man does not live who wishes for peace more than i do; but the outrages committed upon us are beyond human bearing. farewell--pray heaven we may weather the storm."[ ] if the self-contained and cautious marshall felt a just resentment of british outrage, we may, by that measure, accurately judge of the inflamed and dangerous condition of the general sentiment. thus it came about that the deeply rooted hatred of the people for their former master[ ] was heated to the point of reckless defiance. this was the same monarchy, they truly said, that still kept the military and trading posts on american soil which, more than a decade before, it had, by the treaty of peace, solemnly promised to surrender.[ ] the government that was committing these savage outrages was the same faithless power, declared the general voice, that had pledged compensation for the slaves its armies had carried away, but not one shilling of which had been paid. if ever a country had good cause for war, great britain then furnished it to america; and, had we been prepared, it is impossible to believe that we should not have taken up arms to defend our ravaged interests and vindicate our insulted honor. in congress various methods of justifiable retaliation were urged with intense earnestness, marred by loud and extravagant declamation.[ ] "the noise of debate was more deafening than a mill.... we sleep upon our arms," wrote a member of the national house.[ ] but these bellicose measures were rejected because any one of them would have meant immediate hostilities. for we were not prepared. war was the one thing america could not then afford. our government was still tottering on the unstable legs of infancy. orderly society was only beginning and the spirit of unrest and upheaval was strong and active. in case of war, wrote ames, expressing the conservative fears, "i dread anarchy more than great guns."[ ] our resources had been bled white by the revolution and the desolating years that followed. we had no real army, no adequate arsenals,[ ] no efficient ships of war; and the french republic, surrounded by hostile bayonets and guns and battling for very existence, could not send us armies, fleets, munitions, and money as the french monarchy had done. spain was on our south eager for more territory on the mississippi, the mouth of which she controlled; and ready to attack us in case we came to blows with great britain. the latter power was on our north, the expelled loyalists in canada burning with that natural resentment[ ] which has never cooled; british soldiers held strategic posts within our territory; hordes of indians, controlled and their leaders paid by great britain,[ ] and hostile to the united states, were upon our borders anxious to avenge themselves for the defeats we had inflicted on them and their kinsmen in the savage wars incited by their british employers.[ ] worst of all, british warships covered the oceans and patrolled every mile of our shores just beyond american waters. our coast defenses, few, poor, and feeble in their best estate, had been utterly neglected for more than ten years and every american port was at the mercy of british guns.[ ] evidence was not wanting that great britain courted war.[ ] she had been cold and unresponsive to every approach for a better understanding with us. she had not even sent a minister to our government until eight years after the treaty of peace had been signed.[ ] she not only held our posts, but established a new one fifty miles south of detroit; and her entire conduct indicated, and washington believed, that she meant to draw a new boundary line which would give her exclusive possession of the great lakes.[ ] she had the monopoly of the fur trade[ ] and plainly meant to keep it. lord dorchester, supreme representative of the british crown in canada, had made an ominous speech to the indians predicting hostilities against the united states within a year and declaring that a new boundary line would then be drawn "by the warriors."[ ] rumors flew and gained volume and color in their flight. even the poised and steady marshall was disturbed. "we have some letters from philadelphia that wear a very ugly aspect," he writes archibald stuart. "it is said that simcoe, the governor of upper canada, has entered the territory of the united states at the head of about men and has possessed himself of presque isle." but marshall cannot restrain his humor, notwithstanding the gravity of the report: "as this is in pennsylvania," he observes, "i hope the democratic society of philadelphia will at once demolish him and if they should fail i still trust that some of our upper brothers [virginia republicans] will at one stride place themselves by him and prostrate his post. but seriously," continues marshall, "if this be true we must bid adieu to all hope of peace and prepare for serious war. my only hope is that it is a mere speculating story."[ ] powerless to obtain our rights by force or to prevent their violation by being prepared to assert them with arms, washington had no recourse but to diplomacy. at all hazards and at any cost, war must be avoided for the time being. it was one of great britain's critical mistakes that she consented to treat instead of forcing a conflict with us; for had she taken the latter course it is not improbable that, at the end of the war, the southern boundary of british dominion in america would have been the ohio river, and it is not impossible that new york and new england would have fallen into her hands. at the very least, there can be little doubt that the great lakes and the st. lawrence would have become exclusively british waters.[ ] amid a confusion of counsels, washington determined to try for a treaty of amity, commerce, and navigation with great britain, a decision, the outcome of which was to bring marshall even more conspicuously into politics than he ever had been before. indeed, the result of the president's policy, and marshall's activity in support of it, was to become one of the important stepping-stones in the latter's career. chief justice jay was selected for the infinitely delicate task of negotiation. even the news of such a plan was received with stinging criticism. what! kiss the hand that smote us! it was "a degrading insult to the american people; a pusillanimous surrender of their honor; and an insidious injury to france."[ ] and our envoy to carry out this shameful programme!--was it not that same jay who once tried to barter away the mississippi?[ ] it was bad enough to turn our backs on france; but to treat with the british government was infamous. so spoke the voice of the people. the democratic societies were especially virulent; "let us unite with france and stand or fall together"[ ] was their heroic sentiment. but abhorrence of the mission did not blind the republicans to the advantages of political craft. while the negotiations were in progress they said that, after all, everything would be gained that america desired, knowing that they could say afterward, as they did and with just cause, that everything had been lost.[ ] at last jay secured from great britain the famous treaty that bears his name. it is perhaps the most humiliating compact into which america ever entered. he was expected to secure the restriction of contraband--it was enlarged; payment for the slaves--it was refused; recognition of the principle that "free ships make free goods"--it was denied; equality with france as to belligerent rights--it was not granted; opening of the west indian trade--it was conceded upon hard and unjust conditions; payment for british spoliation of american commerce--it was promised at some future time, but even then only on the award of a commission; immediate surrender of the posts--their evacuation was agreed to, but not until a year and a half after the treaty was signed. on the other hand, the british secured from us free navigation and trading rights on the mississippi--never contemplated; agreement that the united states would pay all debts due from american citizens to british creditors--a claim never admitted hitherto; prohibition of any future sequestration of british debts; freedom of all american ports to british vessels, with a pledge to lay no further restrictions on british commerce--never before proposed; liberty of indians and british subjects to pass our frontiers, trade on our soil, retain lands occupied without becoming american citizens, but privileged to become such at pleasure--an odious provision, which, formerly, had never occurred to anybody. thus, by the treaty of , we yielded everything and gained little not already ours. but we secured peace; we were saved from war. that supreme end was worth the sacrifice and that, alone, justified it. it more than demonstrated the wisdom of the jay treaty. while the senate was considering the bitter terms which great britain, with unsheathed sword, had forced upon us, senator stephen t. mason of virginia, in violation of the senate rules, gave a copy of the treaty to the press.[ ] instantly the whole land shook with a tornado of passionate protest.[ ] from one end of the country to the other, public meetings were held. boston led off.[ ] washington was smothered with violent petitions that poured in upon him from every quarter praying, demanding, that he withhold his assent.[ ] as in the struggle for the constitution and in the violent attacks on neutrality, so now the strongest advocates of the jay treaty were the commercial interests. "the common opinion among men of business of all descriptions is," declares hamilton, "that a disagreement would greatly shock and stagnate pecuniary plans and operations in general."[ ] the printing presses belched pamphlets and lampoons, scurrilous, inflammatory, even indecent. an example of these was a boston screed. this classic of vituperation, connecting the treaty with the financial measures of washington's administration, represented the federalist leaders as servants of the devil; independence, after the death of his first wife, virtue, married a foul creature, vice, and finally himself expired in convulsions, leaving speculation, bribery, and corruption as the base offspring of his second marriage.[ ] everywhere jay was burned in effigy. hamilton was stoned in new york when he tried to speak to the mob; and with the blood pouring down his face went, with the few who were willing to listen to him, to the safety of a hall.[ ] even washington's granite resolution was shaken. only once in our history have the american people so scourged a great public servant.[ ] he was no statesman, raged the republicans; everybody knew that he had been a failure as a soldier, they said; and now, having trampled on the constitution and betrayed america, let him be impeached, screamed the infuriated opposition.[ ] seldom has any measure of our government awakened such convulsions of popular feeling as did the jay treaty, which, surrendering our righteous and immediate demands, yet saved our future. marshall, watching it all, prepared to defend the popularly abhorred compact; and thus he was to become its leading defender in the south. when, finally, washington reluctantly approved its ratification by the senate,[ ] many of his friends deserted him.[ ] "the trouble and perplexities ... have worn away my mind," wrote the abused and distracted president.[ ] mercer county, kentucky, denounced senator humphrey marshall for voting for ratification and demanded a constitutional amendment empowering state legislatures to recall senators at will.[ ] the legislature of virginia actually passed a resolution for an amendment of the national constitution to make the house of representatives a part of the treaty-making power.[ ] the lexington, kentucky, resolutions branded the treaty as "shameful to the american name."[ ] it was reported that at a dinner in virginia this toast was drunk: "a speedy death to general washington."[ ] orators exhausted invective; poets wrote in the ink of gall.[ ] jefferson, in harmony, of course, with the public temper, was against the treaty. "so general a burst of dissatisfaction," he declared, "never before appeared against any transaction.... the whole body of the people ... have taken a greater interest in this transaction than they were ever known to do in any other."[ ] the republican chieftain carefully observed the effect of the popular commotion on his own and the opposite party. "it has in my opinion completely demolished the monarchical party here[ ] [virginia]." jefferson thought the treaty itself so bad that it nearly turned him against all treaties. "i am not satisfied," said he, "we should not be better without treaties with any nation. but i am satisfied we should be better without such as this."[ ] the deadliest charge against the treaty was the now familiar one of "unconstitutionality." many urged that the president had no power to begin negotiations without the assent of the senate;[ ] and all opponents agreed that it flagrantly violated the constitution in several respects, especially in regulating trade, to do which was the exclusive province of congress.[ ] once more, avowed the jeffersonians, it was the national government which had brought upon america this disgrace. "not one in a thousand would have resisted great britain ... in the beginning of the revolution" if the vile conduct of washington had been foreseen; and it was plain, at this late day, that "either the federal or state governments must fall"--so wrote republican pamphleteers, so spoke republican orators.[ ] again hamilton brought into action the artillery of his astounding intellect. in a series of public letters under the signature of "camillus," he vindicated every feature of the treaty, evading nothing, conceding nothing. these papers were his last great constructive work. in numbers three, six, thirty-seven, and thirty-eight of "camillus," he expounded the constitution on the treaty-making power; demonstrated the exclusive right of the president to negotiate, and, with the senate, to conclude, treaties; and proved, not only that the house should not be consulted, but that it is bound by the constitution itself to pass all laws necessary to carry treaties into effect.[ ] fearless, indeed, and void of political ambition were those who dared to face the tempest. "the cry against the treaty is like that against a mad-dog," wrote washington from mount vernon.[ ] particularly was this true of virginia, where it raged ungovernably.[ ] a meeting of richmond citizens "have outdone all that has gone before them" in the resolutions passed,[ ] bitterly complained washington. virginians, testified jefferson, "were never more unanimous. . or . individuals of richmond, distinguished however, by their talents as by their devotion to all the sacred acts of the government, & the town of alexandria constitute the whole support of that instrument [jay treaty] here."[ ] these four or five devoted ones, said jefferson, were "marshall, carrington, harvey, bushrod washington, doctor stewart."[ ] but, as we are now to see, marshall made up in boldness and ability what the virginia friends of the administration lacked in numbers. footnotes: [ ] compare hamilton's "opinion as to the constitutionality of the bank of the united states" with marshall's opinion in mcculloch vs. maryland, the student of marshall cannot devote too much attention to hamilton's great state papers, from the "first report on the public credit" to "camillus." it is interesting that hamilton produced all these within five years, notwithstanding the fact that this was the busiest and most crowded period of his life. [ ] binney, in dillon, iii, - . [ ] la rochefoucauld, iii, . for a man even "to be passive ... is a satisfactory proof that he is on the wrong side." (monroe to jefferson, july , ; monroe's _writings_: hamilton, i, .) [ ] george mason to john mason, july , ; rowland, ii, . [ ] corbin to hamilton, march , ; as quoted in beard: _econ. o. j. d._, . [ ] "patrick henry once said 'that he could forgive anything else in mr. jefferson, but his corrupting mr. madison.'" (pickering to marshall, dec. , ; pickering mss., mass. hist. soc.) "his [madison's] placing himself under the pupilage of mr. jefferson and supporting his public deceptions, are sufficient to put him out of my book." (pickering to rose, march , ; _ib._) [ ] madison's course was irreconcilable with his earlier nationalist stand. (see beard: _econ. o. j. d._, ; and see especially the remarkable and highly important letter of hamilton to carrington, may , ; _works_: lodge, ix, - , on madison's change, jefferson's conduct, and the politics of the time.) carrington was now the brother-in-law of marshall and his most intimate friend. their houses in richmond almost adjoined. (see _infra_, chap. v.) [ ] see brief but excellent account of this famous journey in gay: _madison_ (american statesmen series), - ; and _contra_, rives, iii, . [ ] jefferson to madison, june , ; _works_: ford, vii, - . [ ] no letters have been discovered from hamilton to marshall or from marshall to hamilton dated earlier than three years after jefferson's letter to madison. [ ] "the length of the last session has done me irreparable injury in my profession, as it has made an impression on the general opinion that two occupations are incompatible." (monroe to jefferson, june , ; monroe's _writings_: hamilton, i, .) [ ] see _infra_, chap. x. [ ] ames to dwight, jan., ; _works_: ames, i, - . [ ] rives, iii, - ; and see mcmaster, ii, - ; also hamilton to carrington, may , ; _works_: lodge, ix, - . [ ] washington to jefferson, aug. , ; _writings_: ford, xii, - . this letter is almost tearful in its pleading. [ ] jefferson to washington, sept. , ; _works_: ford, vii, _et seq._ the quotation in the text refers to jefferson's part in the deal fixing the site of the capital and passing the assumption act. compare with jefferson's letters written at the time. (_supra_, .) it is impossible that jefferson was not fully advised; the whole country was aroused over assumption, congress debated it for weeks, it was the one subject of interest and conversation at the seat of government, and jefferson himself so testifies in his correspondence. [ ] washington to hamilton, aug. , ; _writings_: ford, xii, - . [ ] hamilton to washington, sept, , ; _works_: lodge, vii, . [ ] see marshall, ii, - . [ ] journal, h.d. (nov. , ), . [ ] _ib._ the legislature instructed virginia's senators and representatives to endeavor to secure measures to "suspend the operation and completion" of the articles of the treaty of peace looking to the payment of british debts until the posts and negroes should be given up. (_ib._, - ; also see virginia statutes at large, new series, i, .) referring to this ames wrote: "thus, murder, at last, is out." (ames to dwight, may , ; _works_: ames, i, - .) [ ] chisholm _vs._ georgia, dallas, . [ ] journal, h.d. ( ), - ; also see virginia statutes at large, new series, i, . this was the origin of the eleventh amendment to the constitution. the legislature "resolved, that a state cannot, under the constitution of the united states, be made a defendant at the suit of any individual or individuals, and that the decision of the supreme federal court, that a state may be placed in that situation, is incompatible with, and dangerous to the sovereignty and independence of the individual states, as the same tends to a general consolidation of these confederated republics." virginia senators were "instructed" to make "their utmost exertions" to secure an amendment to the constitution regarding suits against states. the governor was directed to send the virginia resolution to all the other states. (journal, h.d. ( ), .) [ ] _ib._, . [ ] _ib._; also statutes at large, _supra_, . [ ] see _annals_, d cong., - . [ ] journal, h.d. ( ), - . of giles's methods in this attack on hamilton the elder wolcott wrote that it was "such a piece of baseness as would have disgraced the council of pandemonium." (wolcott to his son, march , ; gibbs, i, .) [ ] beard: _econ. o. j. d._, chap. vi. [ ] professor beard, after a careful treatment of this subject, concludes that "the charge of mere corruption must fall to the ground." (_ib._, .) [ ] "to the northward of baltimore everybody ... speculates, trades, and jobs in the stocks. the judge, the advocate, the physician and the minister of divine worship, are all, or almost all, more or less interested in the sale of land, in the purchase of goods, in that of bills of exchange, and in lending money at two or three per cent." (la rochefoucauld, iv, .) the french traveler was also impressed with the display of riches in the capital. "the profusion of luxury of philadelphia, on great days, at the tables of the wealthy, in their equipages and the dresses of their wives and daughters, are ... extreme. i have seen balls on the president's birthday where the splendor of the rooms, and the variety and richness of the dresses did not suffer, in comparison with europe." the extravagance extended to working-men who, on sundays, spent money with amazing lavishness. even negro servants had balls; and negresses with wages of one dollar per week wore dresses costing sixty dollars. (_ib._, - .) [ ] jefferson to t. m. randolph, march , ; _works_: ford, vi, . [ ] jefferson to short, may , ; _works_: ford, vi, ; and see "a citizen" in the _national gazette_, may , , for a typical republican indictment of funding and assumption. [ ] gallatin's _writings_: adams, i, . [ ] pennsylvania alone had five thousand distilleries. (beard: _econ. o. j. d._, .) whiskey was used as a circulating medium. (mcmaster, ii, .) every contemporary traveler tells of the numerous private stills in pennsylvania and the south. practically all farmers, especially in the back country, had their own apparatus for making whiskey or brandy. (see chap. vii, vol. i, of this work.) nor was this industry confined to the lowly and the frontiersmen. washington had a large distillery. (washington to william augustine washington, feb. , ; _writings_: ford, xiii, .) new england's rum, on the other hand, was supplied by big distilleries; and these could include the tax in the price charged the consumer. thus the people of pennsylvania and the south felt the tax personally, while new englanders were unconscious of it. otherwise there doubtless would have been a new england "rum rebellion," as shays's uprising and as new england's implied threat in the assumption fight would seem to prove. (see beard: _econ. o. j. d._, - .) [ ] marshall, ii, . [ ] _ib._, . [ ] graydon, . [ ] sept. , ; _writings_: ford, xii, . [ ] sept. , ; richardson, i, ; aug. , ; _writings_: ford, xii, . [ ] hamilton remained with the troops until the insurrection was suppressed and order fully established. (see hamilton's letters to washington, written from various points, during the expedition, from oct. to nov. , ; _works_: lodge, vi, - .) [ ] marshall, ii, , - , - ; gibbs, i, - ; and see hamilton's report to the president, aug. , ; _works_: lodge, vi, - . but see gallatin's _writings_: adams, i, - ; beard: _econ. o. j. d._, - . for extended account of the whiskey rebellion from the point of view of the insurgents, see findley: _history of the insurrection_, etc., and breckenridge: _history of the western insurrection_. [ ] the claim now made by the republicans that they were the only friends of the constitution was a clever political turn. also it is an amusing incident of our history. the federalists were the creators of the constitution; while the republicans, generally speaking and with exceptions, had been ardent foes of its adoption. (see beard: _econ. o. j. d._) [ ] graydon, . jefferson's party was called republican because of its championship of the french republic. (ambler, .) [ ] in the fairfax purchase. (see _infra_, chap. v.) [ ] see hamilton's orders to general lee; _works_: lodge, vi, - ; and see washington to lee, oct. , ; _writings_: ford, xii, - . [ ] washington to lee, aug. , ; _writings_: ford, xii, - . [ ] washington to jay, nov. , ; _ib._, . [ ] washington to thruston, aug. , ; _ib._, . [ ] washington to morgan, oct. , ; _ib._, . the virginia militia were under the command of major-general daniel morgan. [ ] general order, june , ; _cal. va. st. prs._, vii, . [ ] carrington to lieutenant-governor wood, sept. , ; _ib._, . [ ] major-general daniel morgan to the governor of virginia, sept. , ; _ib._, . [ ] jefferson to washington, sept. , ; _works_: ford, vii, . [ ] jefferson to madison, dec. , ; _ib._, viii, . [ ] _ib._ [ ] jefferson to monroe, may , ; _ib._, . [ ] jefferson to madison, dec. , ; _ib._, . [ ] wolcott to wolcott, dec. , ; gibbs, i, . [ ] marshall, ii, ; see washington's "farewell address." [ ] john adams claimed this as his particular idea. "washington learned it from me ... and practiced upon it." (adams to rush, july , ; _old family letters_, .) "i trust that we shall have too just a sense of our own interest to originate any cause, that may involve us in it [the european war]." (washington to humphreys, march , ; _writings_: ford, xii, .) [ ] marshall, ii, ; and see rules of neutrality, _ib._, note , p. . washington's proclamation was drawn by attorney-general randolph. (conway, .) [ ] marshall, ii, - . "the publications in freneau's and bache's papers are outrages on common decency." (washington to lee, july , ; _writings_: ford, xii, .) [ ] marshall, ii, . [ ] graydon, . [ ] marshall, ii, . "a freeman" in the _general advertiser_ of philadelphia stated the most moderate opinion of those who opposed neutrality. "france," said he, "is not only warring against the despotism of monarchy but the despotism of aristocracy and it would appear rather uncommon to see men [washington and those who agreed with him] welcoming the ambassador of republicanism who are warring [against] their darling aristocracy. but ... shall the officers of our government prescribe rules of conduct to freemen? fellow citizens, view this conduct [neutrality] well and you will discover principles lurking at bottom at variance with your liberty. who is the superior of the people? are we already so degenerate as to acknowledge a superior in the united states?" (_general advertiser_, april , .) [ ] "our commercial and maritime people feel themselves deeply interested to prevent every act that may put our peace at hazard." (cabot to king, aug. , ; lodge: _cabot_, .) the merchants and traders of baltimore, "as participants in the general prosperity resulting from peace, and the excellent laws and constitution of the united states ... beg leave to express the high sense they entertain of the provident wisdom and watchfulness over the concerns and peace of a happy people which you have displayed in your late proclamation declaring neutrality ... well convinced that the true interests of america consist in a conduct, impartial, friendly, and unoffending to all the belligerent powers." (address of the merchants and traders of baltimore to george washington, president of the united states; _general advertiser_, philadelphia, june , .) [ ] jefferson to madison, may , ; _works_: ford, vii, . [ ] jefferson to monroe, may , ; _ib._, . [ ] marshall, ii, . [ ] pacificus no. ; _works_: lodge, iv, - . [ ] marshall, ii, . [ ] marshall, ii, . [ ] jefferson to washington, dec. , ; _works_: ford, viii, . [ ] jefferson to short, jan. , ; _ib._, vi, . [ ] marshall, ii, . [ ] generally speaking, the same classes that secured the constitution supported all the measures of washington's administration. (see beard: _econ. o. j. d._, - .) while the republicans charged that washington's neutrality was inspired by favoritism to great britain, as it was certainly championed by trading and moneyed interests which dealt chiefly with british houses, the federalists made the counter-charge, with equal accuracy, that the opponents of neutrality were french partisans and encouraged by those financially interested. the younger adams, who was in europe during most of this period and who carefully informed himself, writing from the hague, declared that many americans, some of them very important men, were "debtors to british merchants, creditors to the french government, and speculators in the french revolutionary funds, all to an immense amount," and that other americans were heavily indebted in england. all these interests were against neutrality and in favor of war with great britain--those owing british debts, because "war ... would serve as a sponge for their debts," or at least postpone payment, and the creditors of the french securities, because french success would insure payment. (j. q. adams to his father, june , ; _writings, j. q. a._: ford, i, .) [ ] story, in dillon, iii, . [ ] gabriel jones, the ablest lawyer in the valley, and, of course, a stanch federalist. [ ] monroe to jefferson, sept. , ; monroe's _writings_: hamilton, i, - . considering the intimate personal friendship existing between monroe and marshall, the significance and importance of this letter cannot be overestimated. [ ] it was at this point, undoubtedly, that the slander concerning marshall's habits was started. (see _infra_, - .) [ ] the above paragraphs are based on justice story's account of marshall's activities at this period, supplemented by madison and monroe's letters; by the well-known political history of that time; and by the untrustworthy but not negligible testimony of tradition. while difficult to reconstruct a situation from such fragments, the account given in the text is believed to be substantially accurate. [ ] see _works_: ford, xii, footnote to . [ ] madison to jefferson, june , ; _writings_: hunt, vi, . [ ] see _infra_, chap. v. [ ] madison to jefferson, sept. , ; _writings_: hunt, vi, . [ ] see _infra_, chap. v. robert morris secured in this way all the money he was able to give his son-in-law for the fairfax purchase. [ ] mrs. carrington to her sister nancy; undated; ms. [ ] _ib._ [ ] see _supra_, vol. i, chap. vii. [ ] see, for instance, jefferson to short (sept , ; _works_: ford, vi, ), describing a single order of wine for washington and one for himself; and see chastellux's account of an evening with jefferson: "we were conversing one evening over a bowl of punch after mrs. jefferson had retired. our conversation turned on the poems of ossian.... the book was sent for and placed near the bowl, where by their mutual aid the night far advanced imperceptibly upon us." (chastellux, .) marshall's account book does not show any purchases of wine at all comparable with those of other contemporaries. in march, , marshall enters, "wine £ "; august, ditto, "£ - - "; september, , "wine £ "; in july, , "whisky . . " (pounds, shillings, and pence); in may, , "rum and brandy - "; august, , ditto, five shillings, sixpence; may, , "whisky £ . "; sept., "wine £ "; oct., ditto, "£ . ." [ ] marshall to stuart, march , ; ms., va. hist. soc. [ ] major george keith taylor to brigadier-general mathews, july , ; _cal. va. st. prs._, vii, . [ ] mathews to taylor, july , ; _ib._, . [ ] governor henry lee "commander-in-chief," to marshall, july , ; ms., "war ," archives, va. st. lib. [ ] "dark blue coat, skirts lined with buff, capes, lapels and cuffs buff, buttons yellow. epaulets gold one on each shoulder, black cocked hat, with black cockade, black stock, boots and side arms." (division orders, july , ; _cal. va. st. prs._, vii, . but see schoepf (ii, ), where a uniform worn by one brigadier-general of virginia militia is described as consisting of "a large white hat, a blue coat, a brown waistcoat, and green breeches.") [ ] particular orders, _supra_. [ ] marshall to governor of virginia, july , ; _cal. va. st. prs._, vii, ; and same to same, july , ; _ib._, . [ ] _ib._ [ ] marshall to governor of virginia, july , ; _cal. va. st. prs._, vii, . [ ] george keith taylor; see _infra_, chaps. x and xii. [ ] lee to the secretary of war, july , ; _cal. va. st. prs._, vii, . [ ] see, for instance, thompson's speech, _infra_, chap. vi. [ ] marshall, ii, . [ ] _ib._, . [ ] _ib._, . [ ] marshall to stuart, march , ; ms., va. hist. soc. [ ] "the idea that great britain was the natural enemy of america had become habitual" long before this time. (marshall, ii, .) [ ] one reason for great britain's unlawful retention of these posts was her purpose to maintain her monopoly of the fur trade. (_ib._, . and see beard: _econ. o. j. d._, .) [ ] marshall, ii, - ; and see _annals_, d cong., st sess., , - ; also anderson, ; and see prior war-inviting resolves and speeches in _annals_, d cong., _supra_, , , _et seq._; also marshall, ii, _et seq._ [ ] ames to dwight, dec. , ; _works_: ames, i, . [ ] ames to gore, march , ; _works_: ames, i, . and see marshall, ii, _et seq._ [ ] see washington to ball, aug. , ; _writings_: ford, xii, . [ ] see van tyne, chap. xi. [ ] marshall, ii, , . [ ] _ib._ [ ] john quincy adams, who was in london and who was intensely irritated by british conduct, concluded that: "a war at present with great britain must be total destruction to the commerce of our country; for there is no maritime power on earth that can contend with the existing naval british force." (j. q. adams to sargent, the hague, oct. , ; _writings, j. q. a._: ford, i, .) [ ] "i believe the intention is to draw the united states into it [war] merely to make tools of them.... the conduct of the british government is so well adapted to increasing our danger of war, that i cannot but suppose they are secretly inclined to produce it." (j. q. adams to his father, the hague, sept. , ; _ib._, .) [ ] marshall, ii, . [ ] marshall, ii, . [ ] _ib._, ; and see beard: _econ. o. j. d._, . [ ] see this speech in rives, iii, footnote to - . it is curious that marshall, in his _life of washington_, makes the error of asserting that the account of dorchester's speech was "not authentic." it is one of the very few mistakes in marshall's careful book. (marshall, ii, .) [ ] marshall to stuart, may , ; ms., va. hist. soc. [ ] it must not be forgotten that we were not so well prepared for war in as the colonies had been in , or as we were a few years after jay was sent on his mission. and on the traditional policy of great britain when intending to make war on any country, see j. q. adams to his father, june , ; _writings, j. q. a._: ford, i, - . also, see same to same, the hague, june , ; _ib._, , predicting dissolution of the union in case of war with great britain. "i confess it made me doubly desirous to quit a country where the malevolence that is so common against america was exulting in triumph." (_ib._) "the truth is that the american _government_ ... have not upon earth more rancorous enemies, than the springs which move the machine of this country [england] ... between great britain and the united states no _cordiality_ can exist." (same to same, london, feb. , ; _ib._, ; also, march , ; _ib._, , , .) [ ] marshall, ii, . [ ] _american remembrancer_, i, . [ ] resolution of wythe county (va.) democratic society, quoted in anderson, . [ ] ames to dwight, feb. , ; _works_: ames, i, . [ ] marshall, ii, - . [ ] _ib._, . [ ] the boston men, it appears, had not even read the treaty, as was the case with other meetings which adopted resolutions of protest. (marshall, ii, _et seq._) thereupon the boston satirists lampooned the hasty denunciators of the treaty as follows:-- "i've never read it, but i say 'tis bad. if it goes down, i'll bet my ears and eyes, it will the people all unpopularize; boobies may hear it read ere they decide, i move it quickly be unratified." on dr. jarvis's speech at faneuil hall against the jay treaty; loring: _hundred boston orators_, . the republicans were equally sarcastic: "i say the treaty is a good one ... for i do not think about it.... what did we choose the senate for ... but to think for us.... let the people remember that it is their sacred right to submit and obey; and that all those who would persuade them that they have a right to think and speak on the sublime, mysterious, and to them incomprehensible affairs of government are factious democrats and outrageous jacobins." (essay on jacobinical thinkers: _american remembrancer_, i, .) [ ] see marshall's vivid description of the popular reception of the treaty; marshall, ii, - . [ ] hamilton to king, june , ; _works_: lodge, x, . [ ] "an emetic for aristocrats.... also a history of the life and death of independence; boston, ." copies of such attacks were scattered broadcast--"emissaries flew through the country spreading alarm and discontent." (camillus, no. ; _works_: lodge, v, - .) [ ] mcmaster, ii, - ; gibbs, i, ; and hildreth, iv, . [ ] present-day detraction of our public men is gentle reproof contrasted with the savagery with which washington was, thenceforth, assailed. [ ] marshall, ii, . of the innumerable accounts of the abuse of washington, weld may be cited as the most moderate. after testifying to washington's unpopularity this acute traveler says: "it is the spirit of dissatisfaction which forms a leading trait in the character of the americans as a people, which produces this malevolence [against washington]; if their public affairs were regulated by a person sent from heaven, i firmly believe his acts, instead of meeting with universal approbation, would by many be considered as deceitful and flagitious." (weld, i, - .) [ ] washington almost determined to withhold ratification. (marshall, ii, .) the treaty was signed november , ; received by the president, march , ; submitted to the senate june , ; ratified by the senate june ; and signed by washington august , . (_ib._, , , .) [ ] "washington now defies the whole sovereign that made him what he is----and can unmake him again. better his hand had been cut off when his glory was at its height before he blasted all his laurels!" (dr. nathaniel ames's diary, aug. , ; _dedham (mass.) historical register_, vii, .) of washington's reply to the address of the merchants and traders of philadelphia "an old soldier of ' ," wrote: "has adulation ... so bewildered his senses, that relinquishing even common decency, he tells merchants and traders of philadelphia that they are more immediately concerned than any other class of his fellow citizens?" (_american remembrancer_, ii, - .) [ ] washington to jay, may , ; _writings_: ford, xiii, . [ ] _american remembrancer_, ii, . [ ] journal, h.d. ( ), - ; and see anderson, . [ ] _american remembrancer_, ii, . [ ] ames to gore, jan. , ; _works_: ames, i, . [ ] "this treaty in one page confines, the sad result of base designs; the wretched purchase here behold of traitors--who their country sold. here, in their proper shape and mien, fraud, perjury, and guilt are seen." (freneau, iii, .) [ ] jefferson to monroe, sept. , ; _works_: ford, viii, - . [ ] _ib._ [ ] jefferson to tazewell, sept. , ; _works_: ford, viii, . the jay treaty and neutrality must be considered together, if the temper of the times is to be understood. "if our neutrality be still preserved, it will be due to the president alone," writes the younger adams from europe. "nothing but his weight of character and reputation, combined with his firmness and political intrepidity could have stood against the torrent that is still tumbling with a fury that resounds even across the atlantic.... if his system of administration now prevails, ten years more will place the united states among the most powerful and opulent nations on earth.... now, when a powerful party at home and a mighty influence from abroad, are joining all their forces to assail his reputation, and his character i think it my duty as an american to avow my sentiments." (j. q. adams to bourne, dec. , ; _writings, j. q. a._: ford, i, .) [ ] charles pinckney's speech; _american remembrancer_, i, . [ ] marshall, ii, . the republicans insisted that the assent of the house of representatives is necessary to the ratification of any treaty that affects commerce, requires appropriation of money, or where any act of congress whatever may be necessary to carry a treaty into effect. (_ib._; and see livingston's resolutions and debate; _annals_, th cong., st sess., , ; .) [ ] "priestly's emigration," printed in cobbett, i, , quoting "agricola." [ ] "camillus"; _works_: lodge, v and vi. it is impossible to give a satisfactory condensation of these monumental papers. struck off in haste and under greatest pressure, they equal if not surpass hamilton's "first report on the public credit," his "opinion as to the constitutionality of the bank of the united states," or his "report on manufactures." as an intellectual performance, the "letters of camillus" come near being hamilton's masterpiece. [ ] washington to hamilton, july , ; _writings_: ford, xiii, . [ ] the whole country was against the treaty on general grounds; but virginia was especially hostile because of the sore question of runaway slaves and the british debts. [ ] washington to randolph, aug. , ; _writings_: ford, xiii, footnote to . see resolutions, which were comparatively mild; _american remembrancer_, i, - ; and see _richmond and manchester advertiser_, of july , and aug. , . [ ] jefferson to coxe, sept. , ; _works_: ford, vii, . [ ] jefferson to monroe, sept. , ; _ib._, . chapter iv washington's defender his [marshall's] lax, lounging manners have made him popular. (jefferson.) having a high opinion of general marshall's honor, prudence, and judgment, consult him. (washington.) the man [washington] who is the source of all the misfortunes of our country is no longer possessed of the power to multiply evils on the united states. (the _aurora_ on washington's retirement from the presidency.) jefferson properly named marshall as the first of washington's friends in virginia. for, by now, he had become the leader of the virginia federalists. his lucid common sense, his level poise, his steady courage, his rock-like reliability--these qualities, together with his almost uncanny influence over his constituents, had made him chief in the virginia federalist councils. so high had marshall risen in washington's esteem and confidence that the president urged him to become a member of the cabinet. "the office of attorney gen^l. of the united states has become vacant by the death of will bradford, esq.[ ] i take the earliest opportunity of asking if you will accept the appointment? the salary annexed thereto, and the prospects of lucrative practice in this city [philadelphia]--the present seat of the gen^l. government, must be as well known to you, perhaps better, than they are to me, and therefore i shall say nothing concerning them. "if your answer is in the affirmative, it will readily occur to you that no unnecessary time should be lost in repairing to this place. if, on the contrary, it should be the negative (which would give me concern) it might be as well to say nothing of this offer. but in either case, i pray you to give me an answer as promptly as you can."[ ] marshall decided instantly; he could not possibly afford to accept a place yielding only fifteen hundred dollars annually, the salary of the attorney-general at that period,[ ] and the duties of which permitted little time for private practice which was then allowable.[ ] so marshall, in a "few minutes" declined washington's offer in a letter which is a model of good taste. "i had the honor of receiving a few minutes past your letter of the th inst. "while the business i have undertaken to complete in richmond,[ ] forbids me to change my situation tho for one infinitely more eligible, permit me sir to express my sincere acknowledgments for the offer your letter contains & the real pride & gratification i feel at the favorable opinion it indicates. "i respect too highly the offices of the present government of the united states to permit it to be suspected that i have declined one of them."[ ] when he refused the office of attorney-general, washington, sorely perplexed, wrote marshall's brother-in-law,[ ] edward carrington, united states marshal and collector of internal revenue for the district of virginia,[ ] a letter, "the _whole_" of which "is perfectly confidential, written, perhaps, with more candor than prudence," concerning innes or henry for the place; but, says the president, "having a high opinion of general[ ] marshall's honor, prudence, and judgment," carrington must consult him.[ ] the harassed president had now come to lean heavily on marshall in virginia affairs; indeed, it may be said that he was washington's political agent at the state capital. carrington's answer is typical of his reports to the president: "the inquiry [concerning the selection of an attorney-general] which you have been pleased to submit to gen^l. marshall and myself demands & receives our most serious attention--on his [marshall's] aid i rely for giving you accurate information."[ ] [illustration: _john marshall_ _from a painting by rembrandt peale_] later carrington advises washington that marshall "wishes an opportunity of conversing with col. innes before he decides."[ ] innes was absent at williamsburg; and although the matter was urgent, marshall and carrington did not write innes, because, to do so, would involve a decisive offer from washington which "gen^l. marshall does not think advisable."[ ] when washington's second letter, suggesting patrick henry, was received by carrington, he "immediately consulted gen^l. marshall thereon"; and was guided by his opinion. marshall thought that washington's letter should be forwarded to henry because "his nonacceptance, from domestic considerations, may be calculated on"; the offer "must tend to soften" henry "if he has any asperities"; and the whole affair would make henry "active on the side of government & order."[ ] marshall argued that, if henry should accept, his friendship for the administration could be counted on. but marshall's strongest reason for trying to induce henry to become a member of the cabinet was, says carrington, that "we are fully persuaded that a more deadly blow could not be given to the faction [republican party] in virginia, & perhaps elsewhere, than that gentleman's acceptance of the" attorney-generalship. "so much have the opposers of the government held him [henry] up as their oracle, even since he has ceased to respond to them, that any event demonstrating his active support to government, could not but give the [republican] party a severe shock."[ ] a week later carrington reports that henry's "conduct & sentiments generally both as to government & yourself [washington] are such as we [marshall and carrington] calculated on ... which assure us of his discountenancing calumny of every description & disorder,"[ ] meaning that henry was hostile to the republicans. in the rancorous assaults upon the jay treaty in virginia, marshall, of course, promptly took his position by washington's side, and stoutly defended the president and even the hated compact itself. little cared marshall for the effect of his stand upon his popularity. not at all did he fear or hesitate to take that stand. and high courage was required to resist the almost universal denunciation of the treaty in virginia. nor was this confined to the masses of the people; it was expressed also by most of the leading men in the various communities. at every meeting of protest, well-drawn and apparently convincing resolutions were adopted, and able, albeit extravagant, speeches were made against the treaty and the administration. typical of these was the address of john thompson at petersburg, august , .[ ] with whom, asked thompson, was the treaty made? with the british king "who had sworn eternal enmity to republics"; that hateful monarch who was trying "to stifle the liberty of france" and "to starve thirty millions of men" by "intercepting the correspondence and plundering the commerce of neutral nations," especially that of the united states. the british, declared thompson, sought "the destruction of our rising commerce; the annihilation of our growing navigation," and were pursuing that object "with all the ... oppression which rapacity can practice." sequestration of british debts and other justifiable measures of retaliation would, said he, have stopped great britain's lawless practices. but the administration preferred to treat with that malign power; and our envoy, jay, instead of "preserving the attitude of dignity and speaking the language of truth ... basely apostatizing from republican principles, stooped to offer the incense of flattery to a tyrant, the scourge of his country, the foe of mankind.... yes!" exclaimed the radical orator, "we hesitated to offend a proud king, who had captured our vessels, enslaved our fellow-citizens, ruined our merchants, invaded our territory and trampled on our sovereignty." in spite of these wrongs and insults, "we prostrated ourselves before him, smiled in his face, flattered, and obtained this treaty." the treaty thus negotiated was, declared thompson, the climax of the funding system which had "organized a great aristocracy ... usurped the dominion of the senate ... often preponderated in the house of representatives and which proclaims itself in servile addresses to our supreme executive, in dangerous appointments, in monstrous accumulations of debt, in violation of the constitution, in proscriptions of democrats, and, to complete the climax of political infamy, in this treaty." concerning the refusal to observe the principle that "free bottoms make free goods," our yielding the point rendered us, avowed thompson, "a cowardly confederate ... of ... ruthless despots, who march to desolate france, to restore the altars of barbarous superstition and to extinguish the celestial light which has burst upon the human mind. o my countrymen, when you are capable of such monstrous baseness, even the patriot will invoke upon you the contempt of ages." this humiliation had been thrust upon us as a natural result of washington's neutrality proclamation--"a sullen neutrality between freemen and despots." thompson's searching, if boyish, rhetoric truly expressed the feeling in the hearts of the people; it was a frenzied sentiment with which marshall had to contend. notwithstanding his blazing language, thompson analyzed the treaty with ability. in common with opponents of the treaty everywhere, he laid strongest emphasis on its unconstitutionality and the "usurpation" by the president and senate of the rights and powers of the house of representatives. but thompson also mentioned one point that touched marshall closely. "the ninth article," said he, "invades the rights of this commonwealth, by contemplating the case of denny fairfax."[ ] marshall and his brother were now the owners of this estate;[ ] and the jay treaty confirmed all transfers of british property and authorized british subjects to grant, sell, or devise lands held in america in the same manner as if they were citizens of the united states. in congress a few months later, giles, who, declared ames, "has no scruples and certainly less sense,"[ ] touched lightly on this same chord.[ ] so did heath, who was from that part of virginia lying within the fairfax grant.[ ] such was the public temper in virginia, as accurately if bombastically expressed by the youthful thompson, when the elections for the legislature of were held. it was certain that the general assembly would take drastic and hostile action against the treaty; and, perhaps, against washington himself, in case the republicans secured a majority in that body. the federalists were in terror and justly so; for the republicans, their strength much increased by the treaty, were aggressive and confident. the federalist candidate in richmond was the member of the legislature whom the federalists had succeeded in electing after marshall's retirement three years before. he was marshall's intimate friend and a stanch supporter of washington's administration. but it appears that in the present crisis his popularity was not sufficient to secure his election, nor his courage robust enough for the stern fight that was certain to develop in the general assembly. the polls were open and the voting in progress. marshall was among the first to arrive; and he announced his choice.[ ] upon his appearance "a gentleman demanded that a poll be opened for mr. marshall."[ ] marshall, of course, indignantly refused; he had promised to support his friend, he avowed, and now to become a candidate was against "his wishes and feeling and honor." but marshall promised that he would stand for the legislature the following year. thereupon marshall left the polls and went to the court-house to make an argument in a case then pending. no sooner had he departed than a poll was opened for him in spite of his objections;[ ] he was elected; and in the evening was told of the undesired honor with which the freeholders of richmond had crowned him. washington was apprehensive of the newly elected legislature. he anxiously questioned carrington "as to the temper of our assembly." the latter reported that he did not "expect an extravagant conduct during the session."[ ] he thought that "the spirit of dissatisfaction is considerably abated abroad" (throughout virginia and away from richmond), because recent attempts to hold county and district meetings "for the avowed purpose of condemning the administration & the treaty" had been "abortive." it seemed to him, however, that "there is a very general impression unfavorable to the treaty, owing to the greater industry of those who revile, over the supporters of it."[ ] still, carrington was not sure about the legislature itself; for, as he said, "it has every year for several past been observable, that, at meeting [of the legislature] but few hot heads were to be seen, while the great body were rational; but in the course of the session it has seldom happened otherwise than that the spirit of party has been communicated so as to infect a majority. in the present instance i verily believe a question put on this day [the first day of the session] for making the treaty a subject of consideration would be negatived--yet sundry members are here who will attempt every injury to both the administration & the treaty. the party will want ability in their leaders.... general lee, c. lee, gen^l. marshall & mr. andrews will act with ability on the defensive."[ ] three days later the buoyant official advised the president that the republicans doubted their own strength and, at worst, would delay their attack "in order that, as usual, a heat may be generated." marshall was still busy searching for a properly qualified person to appoint to the unfilled vacancy in the office of attorney-general; and carrington tells washington that "gen^l. marshall and myself have had a private consultation" on that subject and had decided to recommend judge blain. but, he adds, "the suggestion rests entirely with gen^l. m[arshall] & myself & will there expire, should you, for any consideration, forbear to adopt it." his real message of joy, however, was the happy frame of mind of the legislature.[ ] alas for this prophecy of optimism! the legislature had not been in session a week before the anti-administration banquo's ghost showed its grim visage. the republicans offered a resolution approving the vote of virginia senators against the jay treaty. for three days the debate raged. marshall led the federalist forces. "the support of the treaty has fallen altogether on gen^l. marshall and mr. chas. lee," carrington reports to washington.[ ] among the many objections to the treaty the principal one, as we have seen, was that it violated the constitution. the treaty regulated commerce; the constitution gave that power to congress, which included the house of representatives; yet the house had not been consulted. the treaty involved naturalization, the punishment of piracies, the laying of imposts and the expenditure of money--all of these subjects were expressly placed under the control of congress and one of them[ ] (the raising and expending of public money) must originate in the house; yet that popular branch of the government had been ignored. the treaty provided for a quasi-judicial commission to settle the question of the british debts; yet "all the power of the federal government with respect to debts is given [congress] by a concise article of the constitution.... what article of the constitution authorizes president and senate to establish a judiciary colossus which is to stand with one foot on america and the other on britain, and drag the reluctant governments of those countries to the altar of justice?"[ ] thus the question was raised whether a commercial treaty, or an international compact requiring an appropriation of money, or, indeed, any treaty whatever in the execution of which any action of any kind on the part of the house of representatives was necessary, could be made without the concurrence of the house as well as the senate. on this, the only vital and enduring question involved, marshall's views were clear and unshakable. the defense of the constitutional power of the president and senate to make treaties was placed solely on marshall's shoulders. the federalists considered his argument a conclusive demonstration. carrington wrote washington that "on the point of constitutionality many conversions were acknowledged."[ ] he was mistaken; the republicans were not impressed. on the contrary, they thought that the treaty "was much less ably defended than opposed."[ ] the republicans had been very much alarmed over marshall and especially feared the effect of one clever move. "john marshall," wrote jefferson's son-in-law from richmond to the republican commander in monticello, "it was once apprehended would make a great number of converts by an argument which cannot be considered in any other light than an uncandid artifice. to prevent what would be a virtual censure of the president's conduct he maintained _that the treaty in all its commercial parts was still under the power of the h._[ouse] _of r._[epresentatives]."[ ] marshall, indeed, did make the most of this point. it was better, said he, and "more in the spirit of the constitution" for the national house to refuse support after ratification than to have a treaty "stifled in embryo" by the house passing upon it before ratification. "he compared the relation of the executive and the legislative department to that between the states and the congress under the old confederation. the old congress might have given up the right of laying discriminating duties in favor of any nation by treaty; it would never have thought of taking beforehand the assent of each state thereto. yet, no one would have pretended to deny the power of the states to lay such [discriminating duties]."[ ] such is an unfriendly report of this part of marshall's effort which, wrote jefferson's informant, "is all that is original in his argument. the sophisms of camillus, & the nice distinctions of the examiner made up the rest."[ ] marshall's position was that a "treaty is as completely a valid and obligatory contract when negotiated by the president and ratified by him, with the assent and advice of the senate, as if sanctioned by the house of representatives also, under a constitution requiring such sanction"; and he admitted only that the powers of the house in reference to a treaty were limited to granting or refusing appropriations to carry it into effect.[ ] but as a matter of practical tactics to get votes, marshall appears to have put this in the form of an assertion--no matter what treaty the president and senate made, the house held the whip hand, he argued, and in the end, could do what it liked; why then unnecessarily affront and humiliate washington by applauding the virginia senators for their vote against the treaty? this turn of marshall's, thought the republicans, "was brought forward for the purpose of gaining over the unwary & wavering. it has never been admitted by the writers in favor of the treaty to the northward."[ ] but neither marshall's unanswerable argument on the treaty-making power, nor his cleverness in holding up the national house of representatives as the final arbiter, availed anything. the federalists offered an amendment affirming that the president and senate "have a right to make" a treaty; that discussion of a treaty in a state legislature, "except as to its constitutionality," was unnecessary; and that the legislature could not give "any mature opinion upon the conduct of the senators from virginia ... without a full investigation of the treaty." they were defeated by a majority of out of a total of members present and voting; john marshall voting for the amendment.[ ] on the main resolution proposed by the republicans the federalists lost two votes and were crushed by a majority of two to one; marshall, of course, voting with the minority.[ ] carrington hastily reported to washington that though "the discussion has been an able one on the side of the treaty," yet, "such was the apprehension that a vote in its favor would be unpopular, that argument was lost"; and that, notwithstanding many members were convinced by marshall's constitutional argument, "obligations of expediency" held them in line against the administration. the sanguine carrington assured the president, however, that "during the discussion there has been preserved a decided respect for & confidence in you."[ ] but alas again for the expectations of sanguinity! the republican resolution was, as jefferson's son-in-law had reported to the republican headquarters at monticello, "a virtual censure of the president's conduct." this was the situation at the close of the day's debate. realizing it, as the night wore on, washington's friends determined to relieve the president of this implied rebuke by the legislature of his own state. the republicans had carried their point; and surely, thought washington's supporters, the legislature of virginia would not openly affront the greatest of all americans, the pride of the state, and the president of the nation. infatuated imagination! the next morning the friends of the administration offered a resolution that washington's "motives" in approving the treaty met "the entire approbation of this house"; and that washington, "for his great abilities, _wisdom_ and integrity merits and possesses the undiminished confidence of his country." the resolution came near passing. but some lynx-eyed republican discovered in the nick of time the word "_wisdom_."[ ] that would never do. the republicans, therefore, offered an amendment "that this house do entertain the highest sense of the integrity and patriotism of the president of the united states; and that while they approve of the vote of the senators of this state" on the treaty, "they in no wise censure the motives which influenced him in his [washington's] conduct thereupon."[ ] the word "wisdom" was carefully left out. marshall, lee, and the other federalists struggled hard to defeat this obnoxious amendment; but the republicans overwhelmed them by a majority of out of a total of voting, marshall, of course, casting his vote against it.[ ] in worse plight than ever, washington's friends moved to amend the republican amendment by resolving: "that the president of the united states, for his great abilities, _wisdom_, and integrity, merits and possesses the undiminished confidence of this house." but even this, which omitted all reference to the treaty and merely expressed confidence in washington's "abilities, wisdom, and integrity," was beaten by a majority of out of a total of voting.[ ] as soon as jefferson got word of marshall's support of washington's administration in the legislature, he poured out his dislike which had long been distilling:-- "though marshall will be able to embarras [_sic_] the republican party in the assembly a good deal," wrote jefferson to madison, "yet upon the whole his having gone into it will be of service. he has been, hitherto, able to do more mischief acting under the mask of republicanism than he will be able to do after throwing it plainly off. his lax lounging manners have made him popular with the bulk of the people of richmond; & a profound hypocrisy, with many thinking men of our country. but having come forth in the plenitude of his english principles the latter will see that it is high time to make him known."[ ] such was jefferson's inability to brook any opposition, and his readiness to ascribe improper motives to any one having views different from his own. so far from marshall's having cloaked his opinions, he had been and was imprudently outspoken in avowing them. frankness was as much a part of marshall's mental make-up as his "lax, lounging manners" were a part of his physical characteristics. of all the men of the period, not one was cleaner of hypocrisy than he. from patrick henry in his early life onward to his associates on the bench at the end of his days the testimony as to marshall's open-mindedness is uniform and unbroken. with the possible exception of giles and roane, jefferson appears to have been the only man who even so much as hinted at hypocrisy in marshall. although strongly opposing his views and suggesting the influence of supposed business connections, madison had supreme confidence in marshall's integrity of mind and character. so had monroe. even jefferson's most panegyrical biographer declares marshall to have been "an earnest and sincere man."[ ] the house of delegates having refused to approve washington, even indirectly, the matter went to the state senate. there for a week washington's friends fought hard and made a slight gain. the senate struck out the house resolution and inserted instead: "the general assembly entertain the highest sense of the integrity, patriotism and wisdom of the president of the united states, and in approving the vote of the senators of the state in the congress of the united states, relative to the treaty with great britain, they in no wise mean to censure the motives which influenced him in his conduct thereupon." to this the house agreed, although by a slender majority, marshall, of course, voting for the senate amendment.[ ] during this session marshall was, as usual, on the principal standing committees and did his accustomed share of general legislative work. he was made chairman of a special committee to bring in a bill "authorizing one or more branches of the bank of the united states in this commonwealth";[ ] and later presented the bill,[ ] which finally passed, december , , though not without resistance, votes being cast against it.[ ] but the republicans had not yet finished with the jay treaty or with its author. on december , , they offered a resolution instructing virginia's senators and representatives in congress to attempt to secure amendments to the constitution providing that: "treaties containing stipulations upon the subject of powers vested in congress shall be approved by the house of representatives"; that "a tribunal other than the senate be instituted for trying impeachments"; that "senators shall be chosen for three years"; and that "u.s. judges shall hold no other appointments."[ ] the federalists moved to postpone this resolution until the following year "and print and distribute proposed amendments for the consideration of the people"; but they were beaten by a majority of out of a total vote of , marshall voting for the resolution. the instruction to secure these radical constitutional changes then passed the house by a majority of out of a total vote of , marshall voting against it.[ ] marshall's brother-in-law, united states marshal carrington, had a hard time explaining to washington his previous enthusiasm. he writes: "the active powers of the [republican] party ... unveiled themselves, & carried in the house some points very extraordinary indeed, manifesting disrespect towards you." but, he continues, when the virginia senate reversed the house, "the zealots of anarchy were backward to act ... while the friends of order were satisfied to let it [the virginia senate amendment] remain for farther effects of reflection"; and later succeeded in carrying it. "the fever has raged, come to its crisis, and is abating." proof of this, argued carrington, was the failure of the republicans to get signatures to "some seditious petitions [against the jay treaty] which was sent in vast numbers from philadelphia" and which "were at first patronized with great zeal by many of our distinguished anarchists; but ... very few copies will be sent to congress fully signed."[ ] never was appointive officer so oblivious of facts in his reports to his superior, as was carrington. before adjournment on december , , the legislature adopted part of the resolution which had been offered in the morning: "no treaty containing any stipulation upon the subject of powers vested in congress by the eighth section of the first article [of the constitution] shall become the supreme law of the land until it shall have been approved in those particulars by a majority in the house of representatives; and that the president, before he shall ratify _any_ treaty, shall submit the same to the house of representatives."[ ] carrington ignored or failed to understand this amazing resolution of the legislature of virginia; for nearly three months later he again sought to solace washington by encouraging reports. "the public mind in virginia was never more tranquil than at present. the fever of the late session of our assembly, had not been communicated to the country.... the people do not approve of the violent and petulant measures of the assembly, because, in several instances, public meetings have declared a decided disapprobation." in fact, wrote carrington, virginia's "hostility to the treaty has been exaggerated." proof "of the mass of the people being less violent than was asserted" would be discovered "in the failure of our zealots in getting their signatures to certain printed papers, sent through the country almost by horse loads, as copies of a petition to congress on the subject of the treaty."[ ] but a few short months would show how rose-colored were the spectacles which mr. carrington wore when he wrote this reassuring letter. the ratification of the british treaty; the rage against england; and the devotion to france which already had made the republican a french party; the resentment of the tri-color republic toward the american government--all forged a new and desperate menace. it was, indeed, scylla or charybdis, as washington had foreseen, and bluntly stated, that confronted the national government. war with france now seemed the rock on which events were driving the hard-pressed administration--war for france or war from france. the partisan and simple-minded monroe had been recalled from his diplomatic post at paris. the french mission, which at the close of our revolution was not a place of serious moment,[ ] now became critically--vitally--important. level must be the head and stout the heart of him who should be sent to deal with that sensitive, proud, and now violent country. lee thus advises the president: "no person would be better fitted than john marshall to go to france for supplying the place of our minister; but it is scarcely short of absolute certainty that he would not accept any such office."[ ] but washington's letter was already on the way, asking marshall to undertake this delicate task:-- "in confidence i inform you," wrote washington to marshall, "that it has become indispensably necessary to recall our minister at paris & to send one in his place, who will explain faithfully the views of this government & ascertain those of france. "nothing would be more pleasing to me than that you should be this organ, if it were only for a temporary absence of a few months; but it being feared that even this could not be made to comport with your present pursuits, i have in order that as little delay as possible may be incurred put the enclosed letter [to charles cotesworth pinckney] under cover to be forwarded to its address, if you decline the present offer or to be returned to me if you accept it. your own correct knowledge of circumstances renders details unnecessary."[ ] marshall at once declined this now high distinction and weighty service, as he had already refused the united states district attorneyship and a place in washington's cabinet. without a moment's delay, he wrote the president:-- "i will not attempt to express those sensations which your letter of the th instant has increased. was it possible for me in the present crisis of my affairs to leave the united states, such is my conviction of the importance of that duty which you would confide to me, &, pardon me if i add, of the fidelity with which i shoud attempt to perform it, that i woud certainly forego any consideration not decisive with respect to my future fortunes, & woud surmount that just diffidence i have entertain^d of myself, to make one effort to convey truly & faithfully to the government of france those sentiments which i have ever believed to be entertained by that of the united states. "i have forwarded your letter to mr. pinckney. the recall of our minister at paris has been conjectured while its probable necessity has been regretted by those who love more than all others, our own country. i will certainly do myself the honor of waiting on you at mt. vernon."[ ] washington, although anticipating marshall's refusal of the french mission, promptly answered: "i ... regret that present circumstances should deprive our country of the services, which, i am confident, your going to france would have rendered it"; and washington asks marshall's opinion on the proper person to appoint to the office of surveyor-general.[ ] the president's letter, offering the french post to pinckney, was lost in the mails; and the president wrote marshall about it, because it also enclosed a note "containing three bank bills for one hundred dollars each for the sufferers by fire in charlestown."[ ] in answer, marshall indulged in a flash of humor, even at washington's expense. "your letter to general pinckney was delivered by myself to the post master on the night on which i received it and was, as he says, immediately forwarded by him. its loss is the more remarkable, as it could not have been opened from a hope that it contained bank notes." he also expressed his gratification "that a gentleman of general pinckney's character will represent our government at the court of france."[ ] the office of secretary of state now became vacant, under circumstances apparently forbidding. the interception of fauchet's[ ] famous dispatch number [ ] had been fatal to randolph. the french minister, in this communication to his government, portrays a frightful state of corrupt public thinking in america; ascribes this to the measures of washington's administration; avows that a revolution is imminent; declares that powerful men, "all having without doubt" randolph at their head, are balancing to decide on their party; asserts that randolph approached him with suggestions for money; and concludes:-- "thus with some thousands of dollars the [french] republic could have decided on civil war or on peace [in america]! thus the consciences of the pretended patriots of america have already their prices!... what will be the old age of this [american] government, if it is thus early decrepid!"[ ] the discovery of this dispatch of the french minister destroyed randolph politically. washington immediately forced his resignation.[ ] the president had great difficulty in finding a suitable successor to the deposed secretary of state. he tendered the office to five men, all of whom declined.[ ] "what am i to do for a secretary of state?" he asks hamilton; and after recounting his fruitless efforts to fill that office the president adds that "mr. marshall, of virginia, has declined the office of attorney general, and i am pretty certain, would accept of no other."[ ] it is thus made clear that washington would have made marshall the head of his cabinet in but for the certainty that his virginia champion would refuse the place, as he had declined other posts of honor and power. hardly had the virginia legislature adjourned when the conflict over the treaty was renewed in congress. the republicans had captured the house of representatives and were full of fight. they worked the mechanism of public meetings and petitions to its utmost. on march the house plunged into a swirl of debate over the british treaty; time and again it seemed as though the house would strangle the compact by withholding appropriations to make it effective.[ ] if the treaty was to be saved, all possible pressure must be brought to bear on congress. so the federalists took a leaf out of the book of republican tactics, and got up meetings wherever they could to petition congress to grant the necessary money. in virginia, as elsewhere, the merchants were the principal force in arranging these meetings.[ ] as we have seen, the business and financial interests had from the first been the stanchest supporters of washington's administration. "the commercial and monied people are zealously attached to" and support the government, wrote wolcott in .[ ] and now hamilton advised king that "men of business of all descriptions" thought the defeat of the treaty "would greatly shock and stagnate pecuniary plans and operations in general."[ ] indeed, the one virtue of the treaty, aside from its greatest purpose, that of avoiding war, was that it prevented the collapse of credit and the wreck of hamilton's financial system. washington, with the deceptive hopefulness of responsibility, had, even when it seemed that the people were as one man against the treaty, "doubted much whether the great body of the yeomanry have formed any opinions on the subject."[ ] the federalist meetings were designed to show that the "yeomanry," having been "educated," had at last made up its mind in favor of washington's policy. marshall and carrington arranged for the richmond gathering. "the disorganizing machinations of a faction [republicans]," reported the busy united states marshal, "are no longer left to be nourished and inculcated on the minds of the credulous by clamorous demagogues, while the great mass of citizens, viewing these, as evils at a distance, remain inactive.... all who are attached to peace and order, ... will now come forward and speak for themselves.... a meeting of the people of this city will take place on monday next" to petition the national house of representatives to support the treaty. so carrington advised the president; and the same thing, said he, was to be done "extensively" by "public meetings and petitions throughout virginia."[ ] washington was expecting great results from the richmond demonstration. "it would give me and ... every friend to order and good government throughout the united states very great satisfaction," he wrote to encourage the virginia federalists; "more so than similar sentiments from any other state in the union; for people living at a distance from it [virginia] know not how to believe it possible" that the virginia legislature and her senators and representatives in congress should speak and act as they had done.[ ] "it is," philosophized washington, "on _great_ occasions _only_ and after time has been given for cool and deliberate reflection that the _real_ voice of the people can be known. the present ... is one of those great occasions, than which none more important has occurred, or probably may occur again to call forth their decision."[ ] by such inspiration and management the historic federalist gathering was brought about at richmond on april , , where the "marshall eloquence" was to do its utmost to convert a riotously hostile sentiment into approval of this famous treaty and of the administration which was responsible for it. all day the meeting lasted. marshall put forth his whole strength. at last a "decided majority" adopted a favorable resolution drawn by an "original opponent" of the treaty. thus were sweetened the bitter resolutions adopted by these same freeholders of richmond some months before, which had so angered washington. the accounts of this all-day public discussion are as opposite as were the prejudices and interests of the narrators. justice story tells us that marshall's speech was "masterly," the majority for the resolution "flattering," and the assemblage itself made up of the "same citizens" who formerly had "denounced" the treaty.[ ] but there was present at the meeting an onlooker who gives a different version. randolph, who, in disgrace, was then sweating venom from every pore, thus reports to madison at the end of the hard-fought day:-- "between & persons were present; a large proportion of whom were british merchants, some of whom pay for the british purchases of horses--their clerks--officers, who have held posts under the president at his will,--stockholders--expectants of office--and many without the shadow of a freehold.[ ] notwithstanding this, the numbers on the republican side, tho' inferior, were inferior in a small degree only; and it is believed on good grounds that the majority of free-holders were on the side of the house of representatives [against the treaty]. "campbell[ ] and marshall the principal combatants [word illegible] as you know without being told. marshall's argument was inconsistent, and shifting; concluding every third sentence with the horrors of war. campbell spoke elegantly and forcibly; and threw ridicule and absurdity upon his antagonist with success. mr. clofton [clopton, member of congress from richmond] will receive two papers; one signed by the treaty men, many of whom he will know to have neither interest nor feeling in common with the citizens of virginia, and to have been transplanted hither from england or caledonia since the war, interspersed pretty considerably with fugitive tories who have returned under the amnesty of peace. "the notice, which i sent you the other day," he goes on to say, "spoke of instructions and a petition; but marshall, suspecting that he would be outnumbered by freeholders, and conscious that none should instruct those who elect, quitted the idea of instruction, and betook himself to a petition, in which he said all the inhabitants of richmond, though not freeholders, might join. upon which campbell gave notice, that it would be published that he (marshall) declined hazarding the question on the true sense of the country. very few of the people [freeholders] of the county were present; but three-fourths of those who were present voted with campbell. dr. foushee was extremely active and influential."[ ] marshall, on the contrary, painted in rich colors his picture of this town-hall contest. he thus reports to hamilton: "i had been informed of the temper of the house of representatives and we [richmond federalists] had promptly taken such measures as appeared to us fitted to the occasion. we could not venture an expression of the public mind under the violent prejudices with which it has been impressed, so long as a hope remained, that the house of representatives might ultimately consult the interest or honor of the nation.... but now, when all hope of this has vanished, it was deemed advisable to make the experiment, however hazardous it might be. "a meeting was called," continues marshall, "which was more numerous than i have ever seen at this place; and after a very ardent and zealous discussion which consumed the day, a decided majority declared in favor of a resolution that the wellfare and honor of the nation required us to give full effect to the treaty negotiated with britain. this resolution, with a petition drawn by an original opponent of the treaty, will be forwarded by the next post to congress."[ ] the resolution which marshall's speech caused an "original opponent"[ ] of the treaty to draw was "that the peace, happiness, & wellfare, not less than the national honor of the united states, depend in a great degree upon giving, with good faith, full effect to the treaty lately negotiated with great britain." the same newspaper that printed this resolution, in another account of the meeting "which was held at the instance of some friends of the british treaty," says that "in opposition to that resolution a vast number of the meeting" subscribed to counter-declarations which "are now circulated throughout this city and the county of henrico for the subscription of all those who" are opposed to the treaty.[ ] even the exultant carrington reported "that the enemies of the treaty or rather of the government, are putting in practice every part and effort to obtain subscriptions to a counteracting paper." carrington denounced the unfavorable newspaper account as "a most absolute falsehood." he tells washington that the opposition resolution "was not even listened [to] in the meeting." but still he is very apprehensive--he beholds the politician's customary "crisis" and strives to make the people see it: "there never was a crisis at which the activity of the friends of government was more urgently called for--some of us here have endeavored to make this impression in different parts of the country."[ ] the newspaper reported that the federalists had induced "school boys & apprentices" to sign the petition in favor of the treaty; carrington adds a postscript stating that this was, "i believe, a little incorrect." marshall foresaw that the republicans would make this accusation and hastened to anticipate it by advancing the same charge against his opponents. the republicans, says marshall, secured the signatures to their petition not only "of many respectable persons but of still a greater number of mere boys.... altho' some caution has been used by us in excluding those who might not be considered as authorized to vote," yet, marshall advises king, "they [republicans] will not fail to charge us with having collected a number of names belonging to foreigners and to persons having no property in the place. the charge is as far untrue," asserts marshall, "as has perhaps ever happened on any occasion of the sort. we could, by resorting to that measure, have doubled our list of petitioners." and he adds that "the ruling party [republican] of virginia are extremely irritated at the vote of to-day, and will spare no exertion to obtain a majority in other counties. even here they will affect to have the greater number of freeholders."[ ] it was in this wise that petitions favorable to the jay treaty and to washington were procured in the president's own state. it was thus that the remainder of the country was assured that the administration was not without support among the people of virginia. unsuspected and wholly unforeseen was the influence on marshall's future which his ardent championship of this despised treaty was to exercise. the federalists were wise to follow the republican practice of petition to congress; for, "nothing ... but the torrent of petitions and remonstrances ... would have produced a division (fifty-one to forty-eight) in favor of the appropriation."[ ] so great was the joy of the commercial classes that in philadelphia, the financial heart of the country, a holiday was celebrated when the house voted the money.[ ] marshall's activity, skill, courage, ability, and determination in the legislature and before the people at this critical hour lifted him higher than ever, not only in the regard of washington, but in the opinion of the federalist leaders throughout the country.[ ] they were casting about for a successor to washington who could be most easily elected. the hamiltonian federalists were already distrustful of adams for the presidency, and, even then, were warily searching for some other candidate. why not patrick henry? great changes had occurred in the old patriot's mind and manner of thinking. he was now a man of wealth and had come to lean strongly toward the government. his friendship for washington, marshall, and other virginia federalists had grown; while for jefferson and other virginia republicans it had turned to dislike. still, with henry's lifelong record, the federalists could not be sure of him. to marshall's cautious hands the federalist leaders committed the delicate business of sounding henry. king of new york had written marshall on the subject. "having never been in habits of correspondence with mr. h.[enry]," replies marshall, "i cou'd not by letter ask from him a decision on the proposition i was requested to make him without giving him at the same time a full statement of the whole conversation & of the persons with whom that conversation was held." marshall did not think this wise, for "i am not positively certain what course that gentleman might take. the proposition might not only have been rejected but mentioned publickly to others in such manner as to have become an unpleasant circumstance." a prudent man was marshall. he thought that lee, who "corresponds familiarly with mr. h. & is in the habit of proposing offices to him," was the man to do the work; and he asked lee "to sound mr. h. as from himself or in such manner as might in any event be perfectly safe." lee did so, but got no answer. however, writes marshall, "mr. h.[enry] will be in richmond on the ^d of may. i can then sound him myself & if i find him (as i suspect i shall) totally unwilling to engage in the contest, i can stop where prudence may direct. i trust it will not then be too late to bring forward to public view mr. h. or any other gentleman who may be thought of in his stead. shou'd anything occur to render it improper to have any communication with m^r. h. on this subject, or shou'd you wish the communication to take any particular shape you will be so obliging as to drop me a line concerning it."[ ] marshall finally saw henry and at once wrote the new york lieutenant of hamilton the result of the interview. "mr. henry has at length been sounded on the subject you communicated to my charge," marshall advises king. "gen^l. lee and myself have each conversed with him on it, tho' without informing him particularly of the persons who authorized the communication. he is unwilling to embark in the business. his unwillingness, i think, proceeds from an apprehension of the difficulties to be encountered by those who shall fill high executive offices."[ ] the autumn of was at hand. washington's second term was closing in republican cloudbursts and downpours of abuse of him. he was, said the republicans, an aristocrat, a "monocrat," a miser, an oppressor of the many for the enrichment of the few. nay, more! washington was a thief, even a murderer, charged the republicans. his personal habits were low and base, said these champions of purity.[ ] washington had not even been true to the cause of the revolution, they declared; and to prove this, an ancient slander, supported by forged letters alleged to have been written by washington during the war, was revived.[ ] marshall, outraged and insulted by these assaults on the great american, the friend of his father and himself and the commander of the patriots who had, by arms, won liberty and independence for the very men who were now befouling washington's name, earnestly defended the president. although his law practice and private business called for all his strength and time, marshall, in order to serve the president more effectively, again stood for the legislature, and again he was elected. in the virginia house of delegates, marshall and the other friends of washington took the initiative. on november , , they carried a motion for an address to the president, declaratory of virginia's "gratitude for the services of their most excellent fellow citizen"; who "has so wisely and prosperously administrated the national concerns."[ ] but how should the address be worded? the republicans controlled the committee to which the resolution was referred. two days later that body reported a cold and formal collection of sentences as virginia's address to washington upon his leaving, apparently forever, the service of america. even lee, who headed the committee, could not secure a declaration that washington was or had been wise. this stiff "address" to washington, reported by the committee, left out the word "wisdom." commendation of washington's conduct of the government was carefully omitted. should his friends submit to this? no! better to be beaten in a manly contest. marshall and the other supporters of the president resolved to try for a warmer expression. on december , they introduced a substitute declaring that, if washington had not declined, the people would have reëlected him; that his whole life had been "strongly marked by wisdom, valor, and patriotism"; that "posterity to the most remote generations and the friends of true and genuine liberty and of the rights of man throughout the world, and in all succeeding ages, will unite" in acclaiming "that you have never ceased to deserve well of your country"; that washington's "valor and wisdom ... had essentially contributed to establish and maintain the happiness and prosperity of the nation."[ ] but the republicans would have none of it. after an acrid debate and in spite of personal appeals made to the members of the house, the substitute was defeated by a majority of three votes. john marshall was the busiest and most persistent of washington's friends, and of course voted for the substitute,[ ] which, almost certainly, he drew. cold as was the original address which the federalists had failed to amend, the republicans now made it still more frigid. they would not admit that washington deserved well of the whole country. they moved to strike out the word "country" and in lieu thereof insert "native state."[ ] many years afterward marshall told justice story his recollection of this bitter fight: "in the session of ... which," said marshall, "called forth all the strength and violence of party, some federalist moved a resolution expressing the high confidence of the house in the virtue, patriotism, and wisdom of the president of the united states. a motion was made to strike out the word _wisdom_. in the debate the whole course of the administration was reviewed, and the whole talent of each party was brought into action. will it be believed that the word was retained by a very small majority? a very small majority in the legislature of virginia acknowledged the wisdom of general washington!"[ ] dazed for a moment, the federalists did not resist. but, their courage quickly returning, they moved a brief amendment of twenty words declaring that washington's life had been "strongly marked by wisdom, in the cabinet, by valor, in the field, and by the purest patriotism in both." futile effort! the republicans would not yield. by a majority of nine votes[ ] they flatly declined to declare that washington had been wise in council, brave in battle, or patriotic in either; and the original address, which, by these repeated refusals to endorse either washington's sagacity, patriotism, or even courage, had now been made a dagger of ice, was sent to washington as the final comment of his native state upon his lifetime of unbearable suffering and incalculable service to the nation. arctic as was this sentiment of the virginia republicans for washington, it was tropical compared with the feeling of the republican party toward the old hero as he retired from the presidency. on monday, march , , the day after washington's second term expired, the principal republican newspaper of america thus expressed the popular sentiment:-- "'lord, now lettest thou thy servant depart in peace, for mine eyes have seen thy salvation,' was the pious ejaculation of a man who beheld a flood of happiness rushing in upon mankind.... "if ever there was a time that would license the reiteration of the exclamation, that time is now arrived, for the man [washington] who is the source of all the misfortunes of our country, is this day reduced to a level with his fellow citizens, and is no longer possessed of power to multiply evils upon the united states. "if ever there was a period for rejoicing this is the moment--every heart, in unison with the freedom and happiness of the people ought to beat high with exultation, that the name of washington from this day ceases to give a currency to political iniquity, and to legalize corruption.... "a new æra is now opening upon us, an æra which promises much to the people; for public measures must now stand upon their own merits, and nefarious projects can no longer be supported by a name. "when a retrospect is taken of the washingtonian administration for eight years, it is a subject of the greatest astonishment, that a single individual should have cankered the principles of republicanism in an enlightened people, just emerged from the gulph of despotism, and should have carried his designs against the public liberty so far as to have put in jeopardy its very existence. "such however are the facts, and with these staring us in the face, this day ought to be a jubilee in the united states."[ ] such was washington's greeting from a great body of his fellow citizens when he resumed his private station among them after almost twenty years of labor for them in both war and peace. here rational imagination must supply what record does not reveal. what must marshall have thought? was this the fruit of such sacrifice for the people's welfare as no other man in america and few in any land throughout all history had ever made--this rebuke of washington--washington, who had been the soul as well as the sword of the revolution; washington, who alone had saved the land from anarchy; washington, whose level sense, far-seeing vision, and mighty character had so guided the newborn government that the american people had taken their place as a separate and independent nation? could any but this question have been asked by marshall? he was not the only man to whom such reflections came. patrick henry thus expressed his feelings: "i see with concern our old commander-in-chief most abusively treated--nor are his long and great services remembered.... if he, whose character as our leader during the whole war, was above all praise, is so roughly handled in his old age, what may be expected by men of the common standard of character?"[ ] and jefferson! had he not become the voice of the majority? great as he was, restrained as he had arduously schooled himself to be, washington personally resented the brutal assaults upon his character with something of the fury of his unbridled youth: "i had no conception that parties would or even could go to the length i have been witness to; nor did i believe, until lately, that it was within the bounds of probability--hardly within those of possibility--that ... every act of my administration would be tortured and the grossest and most insidious misrepresentations of them be made ... and that too in such exaggerated and indecent terms as could scarcely be applied to a nero--a notorious defaulter--or even to a common pickpocket."[ ] here, then, once more, we clearly trace the development of that antipathy between marshall and jefferson, the seeds of which were sown in those desolating years from to , and in the not less trying period from the close of the revolution to the end of washington's administration. thus does circumstance mould opinion and career far more than abstract thinking; and emotion quite as much as reason shape systems of government. the personal feud between marshall and jefferson, growing through the years and nourished by events, gave force and speed to their progress along highways which, starting at the same point, gradually diverged and finally ran in opposite directions. footnotes: [ ] when jefferson resigned, randolph succeeded him as secretary of state, and continued in that office until driven out of public life by the famous fauchet disclosure. william bradford of pennsylvania succeeded randolph as attorney-general. [ ] washington to marshall, aug. , ; washington mss., lib. cong. [ ] act of , _annals_, st cong., st sess., appendix, . [ ] for randolph's pathetic account of his struggles to subsist as attorney-general, see conway, chap. xv. [ ] the fairfax purchase. see _infra_, chap. v. [ ] marshall to washington, aug. , ; washington mss., lib. cong. [ ] see _infra_, chap. v. [ ] executive journal, u.s. senate, i, , . and see washington's _diary_: lossing, . carrington held both of these offices at the same time. [ ] referring to marshall's title as general of virginia militia. he was called "general" from that time until he became chief justice of the united states. [ ] washington to carrington, oct. , ; _writings_: ford, xiii, . [ ] carrington to washington, oct. , ; ms., lib. cong. [ ] _ib._ [ ] carrington to washington, oct. , ; ms., lib. cong. [ ] _ib._, oct. , ; ms., lib. cong. [ ] _ib._ a passage in this letter clearly shows the federalist opinion of the young republican party and suggests the economic line dividing it from the federalists. "in the present crisis mr. h.[enry] may reasonably be calculated on as taking the side of government, even though he may retain his old prejudices against the constitution. he has indubitably an abhorrence of anarchy.... we know too that he is improving his fortune fast, which must additionally attach him to the existing government & order, the only guarantees of property. add to all this, that he has no affection for the present leaders of the opposition in virg^a." (carrington to washington, oct. , ; ms., lib. cong.) [ ] carrington to washington, oct. , ; ms., lib. cong. carrington's correspondence shows that everything was done on marshall's judgment and that marshall himself personally handled most of the negotiations. (see _ib._, oct. ; oct. , .) [ ] _american remembrancer_, i, _et seq._ john thompson was nineteen years old when he delivered this address. his extravagant rhetoric rather than his solid argument is quoted in the text as better illustrating the public temper and prevailing style of oratory. (see sketch of this remarkable young virginian, _infra_, chap. x.) [ ] a favorite republican charge was that the treaty would separate us from france and tie us to great britain: "a treaty which children cannot read without discovering that it tends to disunite us from our present ally, and unite us to a government which we abhor, detest and despise." ("an old soldier of ' "; _american remembrancer_, ii, .) [ ] _american remembrancer_, i, . [ ] see _infra_, chap. v. [ ] ames to gore, march , ; _works_: ames, i, . [ ] _annals_, th cong., st sess., - . [ ] _ib._, . see anderson, - . as one of the purchasers of the fairfax estate, marshall had a personal interest in the jay treaty, though it does not appear that this influenced him in his support of it. [ ] the voting was _viva voce_. see _infra_, chap. x. [ ] undoubtedly this gentleman was one of the perturbed federalist managers. [ ] _north american review_, xxvi, . while this story seems improbable, no evidence has appeared which throws doubt upon it. at any rate, it serves to illustrate marshall's astonishing popularity. [ ] carrington's reports to washington were often absurd in their optimistic inaccuracy. they are typical of those which faithful office-holding politicians habitually make to the appointing power. for instance, carrington told washington in that, after traveling all over virginia as united states marshal and collector of internal revenue, he was sure the people were content with assumption and the whiskey tax (washington's _diary_: lossing, footnote to ), when, as a matter of fact, the state was boiling with opposition to those very measures. [ ] the mingling, in the republican mind, of the jay treaty, neutrality, unfriendliness to france, and the federalist party is illustrated in a toast at a dinner in lexington, virginia, to senator brown, who had voted against the treaty: "the french republic--may every power or party who would attempt to throw any obstacle in the way of its independence or happiness receive the reward due to corruption." (_richmond and manchester advertiser_, oct. , .) [ ] carrington to washington, nov. , ; ms., lib. cong. [ ] _ib._, nov. , ; ms.; lib. cong. [ ] the resolution "was warmly agitated three whole days." (randolph to jefferson, nov. , ; _works_: ford, viii, footnote to .) [ ] carrington to washington, nov. , ; ms., lib. cong. [ ] see debates; _annals_, th cong., st sess., - ; also see petersburg resolutions; _american remembrancer_, i, - . [ ] thompson's address, aug. , , at petersburg; _ib._, _et seq._ [ ] carrington to washington, nov. , ; ms., lib. cong. [ ] randolph to jefferson, nov. , ; _works_: ford, viii, footnote to . [ ] randolph to jefferson, nov. , ; _works_: ford, viii, footnote to . [ ] _ib._ [ ] _ib._ see hamilton's dissertation on the treaty-making power in numbers , , , of his "camillus"; _works_: lodge, vi, - . [ ] marshall to hamilton, april , ; _works_: hamilton, vi, . [ ] randolph to jefferson, nov. , ; _works_: ford, viii, . [ ] journal, h.d. (nov. , ), - . [ ] journal, h.d. (nov. , ), . [ ] carrington to washington, nov. , ; ms., lib. cong. [ ] the italics are mine. "the word 'wisdom' in expressing the confidence of the house in the p.[resident] was so artfully introduced that if the fraudulent design had not been detected in time the vote of the house, as to its effect upon the p. would have been entirely done away.... a resolution so worded as to acquit the p. of all evil intention, but at the same time silently censuring his error, was passed by a majority of ." (letter of jefferson's son-in-law, enclosed by jefferson to madison; _works_: ford, viii, footnote to .) [ ] journal, h.d. (nov. , ), . [ ] _ib._ [ ] journal, h.d. (nov. , ), . [ ] jefferson to madison, nov. , ; _works_: ford, viii, - . [ ] randall, ii, . [ ] journal, h.d. ( ), . [ ] journal, h.d. ( ), . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, - . [ ] carrington to washington, dec. , ; ms., lib. cong. [ ] journal, h.d. (dec. , ), - . [ ] carrington to washington, feb. , ; ms., lib. cong. [ ] dodd, . [ ] lee to washington, july , ; _writings_: sparks, xi, . [ ] washington to marshall, july , ; washington mss., lib. cong. [ ] marshall to washington, july , ; _ib._ [ ] washington to marshall, july , ; washington's private letter book; ms., lib. cong. [ ] washington to marshall, oct. , ; _ib._ [ ] marshall to washington, oct. , ; washington mss., lib. cong. [ ] genêt's successor as french minister to the united states. [ ] _interesting state papers_, _et seq._ [ ] _interesting state papers_, . [ ] for able defense of randolph see conway, chap. xxiii; but _contra_, see gibbs, i, chap. ix. [ ] patterson of new jersey, johnson of maryland, c. c. pinckney of south carolina, patrick henry of virginia, and rufus king of new york. (washington to hamilton, oct. , ; _writings_: ford, xiii, - .) king declined because of the abuse heaped upon public officers. (hamilton to washington, nov. , ; _ib._, footnote to .) [ ] washington to hamilton, oct. , ; _writings_: ford, xiii, . [ ] for debate see _annals_, th cong., st sess., - . [ ] carrington to washington, may , ; ms., lib. cong. [ ] oliver wolcott to his father, feb. , ; gibbs, i, . [ ] hamilton to king, june , ; _works_: lodge, x, . [ ] washington to knox, sept. , ; _writings_: ford, xiii, - . [ ] carrington to the president, april , ; _writings_: ford, xiii, footnote to . [ ] washington to carrington, may , ; _ib._, . [ ] _ib._, . [ ] story, in dillon, iii, . [ ] senator stephen thompson mason wrote privately to tazewell that the fairfax purchasers and british merchants were the only friends of the treaty in virginia. (anderson, .) [ ] alexander campbell. (see _infra_, chap. v.) [ ] randolph to madison, richmond, april , ; conway, . only freeholders could vote. [ ] marshall to hamilton, april , ; _works_: hamilton, vi, . [ ] author unknown. [ ] _richmond and manchester advertiser_, april , . [ ] carrington to the president, april , ; ms., lib. cong. [ ] marshall to king, april , ; king, ii, - . [ ] washington to thomas pinckney, may , ; _writings_: ford, xiii, . [ ] robert morris to james m. marshall, may , ; morris's private letter book; ms., lib. cong. [ ] story, in dillon, iii, . [ ] marshall to king, april , ; hamilton mss., lib. cong. hamilton, it seems, had also asked marshall to make overtures to patrick henry for the presidency. (king, ii, footnote to .) but no correspondence between hamilton and marshall upon this subject has been discovered. marshall's correspondence about henry was with king. [ ] marshall to king, may , ; king, ii, . [ ] for an accurate description of the unparalleled abuse of washington, see mcmaster, ii, - , - , - . [ ] marshall, ii, - . also see washington to pickering, march , ; _writings_: ford, xiii, - ; and to gordon, oct. ; _ib._, . [ ] journal, h.d. ( ), - ; ms. archives, va. st. lib. [ ] journal, h.d. ( ), ; ms. archives, va. st. lib. [ ]_ ib._ [ ] _ib._ this amendment is historically important for another reason. it is the first time that the virginia legislature refers to that commonwealth as a "state" in contra-distinction to the country. although the journal shows that this important motion was passed, the manuscript draft of the resolution signed by the presiding officer of both houses does not show the change. (ms. archives, va. st. lib.) [ ] story, in dillon, iii, . marshall's account was inaccurate, as we have seen. his memory was confused as to the vote in the two contests (_supra_), a very natural thing after the lapse of twenty years. in the first contest the house of delegates voted overwhelmingly against including the word "wisdom" in the resolutions; and on the senate amendment restored it by a dangerously small majority. on the second contest in , when marshall declares that washington's friends won "by a very small majority," they were actually defeated. [ ] journal, h. d., - . [ ] _aurora_, monday, march , . this paper, expressing republican hatred of washington, had long been assailing him. for instance, on october , , a correspondent, in the course of a scandalous attack upon the president, said: "the consecrated ermine of presidential chastity seems too foul for time itself to bleach." (see cobbett, i, ; and _ib._, , where the _aurora_ is represented as having said that "washington has the ostentation of an eastern bashaw.") from august to september the _aurora_ had accused washington of peculation. (see "calm observer" in _aurora_, oct. to nov. , .) [ ] henry to his daughter, aug. , ; henry, ii, - . henry was now an enemy of jefferson and his dislike was heartily reciprocated. [ ] washington to jefferson, july , ; _writings_: ford, xiii, - . this letter is in answer to a letter from jefferson denying responsibility for the publication of a cabinet paper in the _aurora_. (jefferson to washington, june , ; _works_: ford, viii, ; and see marshall, ii, - .) even in congress washington did not escape. in the debate over the last address of the national legislature to the president, giles of virginia declared that washington had been "neither wise nor firm." he did not think "so much of the president." he "wished him to retire ... the government of the united states could go on very well without him." (_annals_, th cong., d sess. (dec. , ), - .) on the three roll-calls and passage of the address giles voted against washington. (_ib._, - .) so did andrew jackson, a new member from tennessee. (_ib._) the unpopularity of washington's administration led to the hostile policy of bache's paper, largely as a matter of business. this provident editor became fiercely "republican" because, as he explained to his relative, temple franklin, in england, he "could not [otherwise] maintain his family," and "he had determined to adopt a bold experiment and to come out openly against the administration. he thought the public temper would bear it." (marshall to pickering, feb. , , relating the statement of temple franklin to james m. marshall while in england in .) chapter v the man and the lawyer tall, meagre, emaciated, his muscles relaxed, his joints loosely connected, his head small, his complexion swarthy, his countenance expressing great good humor and hilarity. (william wirt.) mr. marshall can hardly be regarded as a learned lawyer. (gustavus schmidt.) his head is one of the best organized of any i have known. (rufus king.) on a pleasant summer morning when the cherries were ripe, a tall, ungainly man in early middle life sauntered along a richmond street. his long legs were encased in knee breeches, stockings, and shoes of the period; and about his gaunt, bony frame hung a roundabout or short linen jacket. plainly, he had paid little attention to his attire. he was bareheaded and his unkempt hair was tied behind in a queue. he carried his hat under his arm, and it was full of cherries which the owner was eating as he sauntered idly along.[ ] mr. epps's hotel (the eagle) faced the street along which this negligently appareled person was making his leisurely way. he greeted the landlord as he approached, cracked a joke in passing, and rambled on in his unhurried walk. at the inn was an old gentleman from the country who had come to richmond where a lawsuit, to which he was a party, was to be tried. the venerable litigant had a hundred dollars to pay to the lawyer who should conduct the case, a very large fee for those days. who was the best lawyer in richmond, asked he of his host? "the man who just passed us, john marshall by name," said the tavern-keeper. but the countryman would have none of marshall. his appearance did not fill the old man's idea of a practitioner before the courts. he wanted, for his hundred dollars, a lawyer who looked like a lawyer. he would go to the court-room itself and there ask for further recommendation. but again he was told by the clerk of the court to retain marshall, who, meanwhile, had ambled into the court-room. but no! this searcher for a legal champion would use his own judgment. soon a venerable, dignified person, solemn of face, with black coat and powdered wig, entered the room. at once the planter retained him. the client remained in the court-room, it appears, to listen to the lawyers in the other cases that were ahead of his own. thus he heard the pompous advocate whom he had chosen; and then, in astonishment, listened to marshall. the attorney of impressive appearance turned out to be so inferior to the eccentric-looking advocate that the planter went to marshall, frankly told him the circumstances, and apologized. explaining that he had but five dollars left, the troubled old farmer asked marshall whether he would conduct his case for that amount. with a kindly jest about the power of a black coat and a powdered wig, marshall good-naturedly accepted.[ ] this not too highly colored story is justified by all reports of marshall that have come down to us. it is some such picture that we must keep before us as we follow this astonishing man in the henceforth easy and giant, albeit accidental, strides of his great career. john marshall, after he had become the leading lawyer of virginia, and, indeed, throughout his life, was the simple, unaffected man whom the tale describes. perhaps consciousness of his own strength contributed to his disregard of personal appearance and contempt for studied manners. for marshall knew that he carried heavier guns than other men. "no one," says story, who knew him long and intimately, "ever possessed a more entire sense of his own extraordinary talents ... than he."[ ] marshall's most careful contemporary observer, william wirt, tells us that marshall was "in his person, tall, meagre, emaciated; his muscles relaxed and his joints so loosely connected, as not only to disqualify him, apparently, for any vigorous exertion of body, but to destroy everything like elegance and harmony in his air and movements. "indeed, in his whole appearance, and demeanour; dress, attitudes, gesture; sitting, standing, or walking; he is as far removed from the idolized graces of lord chesterfield, as any other gentleman on earth. "to continue the portrait; his head and face are small in proportion to his height; his complexion swarthy; the muscles of his face being relaxed; ... his countenance has a faithful expression of great good humour and hilarity; while his black eyes--that unerring index--possess an irradiating spirit which proclaims the imperial powers of the mind that sits enthroned within.... "his voice is dry, and hard; his attitude, in his most effective orations, often extremely awkward; as it was not unusual for him to stand with his left foot in advance, while all his gesture proceeded from his right arm, and consisted merely in a vehement, perpendicular swing of it from about the elevation of his head to the bar, behind which he was accustomed to stand."[ ] during all the years of clamorous happenings, from the great virginia convention of down to the beginning of adams's administration and in the midst of his own active part in the strenuous politics of the time, marshall practiced his profession, although intermittently. however, during the critical three weeks of plot and plan, debate and oratory in the famous month of june, , he managed to do some "law business": while virginia's constitutional convention was in session, he received twenty fees, most of them of one and two pounds and the largest from "col^o. w. miles cary . ." he drew a deed for his fellow member of the convention, james madison, while the convention was in session, for which he charged his colleague one pound and four shillings. but there was no time for card-playing during this notable month and no whist or backgammon entries appear in marshall's account book. earlier in the year we find such social expenses as "card table . cards / paper /- " and "expenses and loss at billiards at dif^t times " (pounds). in september, , occurs the first entry for professional literature, "law books /- "; but a more important book purchase was that of "mazai's book sur les etats unis[ ] " (shillings), an entry which shows that some of marshall's family could read french.[ ] marshall's law practice during this pivotal year was fairly profitable. he thus sums up his earnings and outlay, "rec^d. in the year . ; and expended in year , - - " which left marshall more than pounds or about $ virginia currency clear profit for the year.[ ] the following year ( ) he did a little better, his net profit being a trifle over seven hundred pounds, or about $ virginia currency. in he earned a few shillings more than pounds and had about $ virginia currency remaining, after paying all expenses. in he did not do so well, yet he cleared over $ virginia currency. in his earnings fell off a good deal, yet he earned more than he expended, over pounds (a little more than $ virginia currency). in marshall was slightly more successful, but his expenses also increased, and he ended this year with a trifle less than pounds clear profit. he makes no summary in , but his account book shows that he no more than held his own. this business barometer does not register beyond the end of ,[ ] and there is no further evidence than the general understanding current in richmond as to the amount of his earnings after this date. la rochefoucauld reported in that "mr. marshall does not, from his practice, derive above four or five thousand dollars per annum and not even that sum every year."[ ] we may take this as a trustworthy estimate of marshall's income; for the noble french traveler and student was thorough in his inquiries and took great pains to verify his statements. in marshall bought the tract of land amounting to an entire city "square" of two acres,[ ] on which, four years later, he built the comfortable brick residence where he lived, while in richmond, during the remainder of his life. this house still stands ( ) and is in excellent repair. it contains nine rooms, most of them commodious, and one of them of generous dimensions where marshall gave the "lawyer dinners" which, later, became so celebrated. this structure was one of a number of the important houses of richmond.[ ] near by were the residences of colonel edward carrington, daniel call, an excellent lawyer, and george fisher, a wealthy merchant; these men had married the three sisters of marshall's wife. the house of jacquelin ambler was also one of this cluster of dwellings. so that marshall was in daily association with four men to whom he was related by marriage, a not negligible circumstance; for every one of them was a strong and successful man, and all of them were, like marshall, pronounced federalists. their views and tastes were the same, they mutually aided and supported one another; and marshall was, of course, the favorite of this unusual family group. in the same locality lived the leighs, wickhams, ronalds, and others, who, with those just mentioned, formed the intellectual and social aristocracy of the little city.[ ] richmond grew rapidly during the first two decades that marshall lived there. from the village of a few hundred people abiding in small wooden houses, in , the capital became, in , a vigorous town of six thousand inhabitants, dwelling mostly in attractive brick residences.[ ] this architectural transformation was occasioned by a fire which, in , destroyed most of the buildings in richmond.[ ] business kept pace with the growth of the city, wealth gradually and healthfully accumulated, and the comforts of life appeared. marshall steadily wove his activities into those of the developing virginia metropolis and his prosperity increased in moderate and normal fashion. [illustration: john marshall's house, richmond] [illustration: the large room where the famous "lawyers' dinners" were given] in his personal business affairs marshall showed a childlike faith in human nature which sometimes worked to his disadvantage. for instance, in he bought a considerable tract of land in buckingham county, which was heavily encumbered by a deed of trust to secure "a debt of a former owner" of the land to caron de beaumarchais.[ ] marshall knew of this mortgage "at the time of the purchase, but he felt no concern ... because" the seller verbally "promised to pay the debt and relieve the land from the incumbrance." so he made the payments through a series of years, in spite of the fact that beaumarchais's mortgage remained unsatisfied, that marshall urged its discharge, and, finally, that disputes concerning it arose. perhaps the fact that he was the attorney of the frenchman in important litigation quieted apprehension. beaumarchais having died, his agent, unable to collect the debt, was about to sell the land under the trust deed, unless marshall would pay the obligation it secured. thus, thirteen years after this improvident transaction, marshall was forced to take the absurd tangle into a court of equity.[ ] but he was as careful of matters entrusted to him by others as this land transaction would suggest that he was negligent of his own affairs. especially was he in demand, it would seem, when an enterprise was to be launched which required public confidence for its success. for instance, the subscribers to a fire insurance company appointed him on the committee to examine the proposed plan of business and to petition the legislature for a charter,[ ] which was granted under the name of the "mutual assurance society of virginia."[ ] thus marshall was a founder of one of the oldest american fire insurance companies.[ ] again, when in the "bank of virginia," a state institution, was organized,[ ] marshall was named as one of the committee to receive and approve subscriptions for stock.[ ] no man could have been more watchful than was marshall of the welfare of members of his family. at one of the most troubled moments of his life, when greatly distressed by combined business and political complications,[ ] he notes a love affair of his sister and, unasked, carefully reviews the eligibility of her suitor. writing to his brother james on business and politics, he says:-- "i understand that my sister jane, while here [richmond], was addressed by major taylor and that his addresses were encouraged by her. i am not by any means certain of the fact nor did i suspect it until we had separated the night preceding her departure and consequently i could have no conversation with her concerning it. "i believe that tho' major taylor was attach'd to her, it would probably have had no serious result if jane had not manifested some partiality for him. this affair embarrasses me a good deal. major taylor is a young gentleman of talents and integrity for whom i profess and feel a real friendship. there is no person with whom i should be better pleased if there were not other considerations which ought not to be overlook'd. mr. taylor possesses but little if any fortune, he is encumbered with a family, and does not like his profession. of course he will be as eminent in his profession as his talents entitle him to be. these are facts unknown to my sister but which ought to be known to her. "had i conjectured that mr. taylor was contemplated in the character of a lover i shou'd certainly have made to her all proper communications. i regret that it was concealed from me. i have a sincere and real affection and esteem for major taylor but i think it right in affairs of this sort that the real situation of the parties should be mutually understood. present me affectionately to my sister."[ ] from the beginning of his residence in richmond, marshall had been an active member of the masonic order. he had become a free mason while in the revolutionary army,[ ] which abounded in camp lodges. it was due to his efforts as city recorder of richmond that a lottery was successfully conducted to raise funds for the building of a masonic hall in the state capital in .[ ] the following year marshall was appointed deputy grand master. in he presided over the grand lodge as grand master _pro tempore_; and the next year he was chosen as the head of the order in virginia. he was reëlected as grand master in ; and presided over the meetings of the grand lodge held during until inclusive. during the latter year the masonic hall in manchester was begun and he assisted in the ceremonies attending the laying of the corner-stone, which bore this inscription: "this stone was laid by the worshipful archibald campbell, master of the manchester lodge of free & accepted masons assisted by & in the presence of the most worshipful john marshall grand master of masons to virginia."[ ] upon the expiration of his second term in this office, the grand lodge "resolved, that the grand lodge are truly sensible of the great attention of our late grand master, john marshall, to the duties of masonry, and that they entertain an high sense of the wisdom displayed by him in the discharge of the duties of his office; and as a token of their entire approbation of his conduct do direct the grand treasurer to procure and present him with an elegant past master's jewel."[ ] from until his election to congress, nine years later,[ ] marshall argued one hundred and thirteen cases decided by the court of appeals of virginia. notwithstanding his almost continuous political activity, he appeared, during this time, in practically every important cause heard and determined by the supreme tribunal of the state. whenever there was more than one attorney for the client who retained marshall, the latter almost invariably was reserved to make the closing argument. his absorbing mind took in everything said or suggested by counsel who preceded him; and his logic easily marshaled the strongest arguments to support his position and crushed or threw aside as unimportant those advanced against him. marshall preferred to close rather than open an argument. he wished to hear all that other counsel might have to say before he spoke himself; for, as has appeared, he was but slightly equipped with legal learning[ ] and he informed himself from the knowledge displayed by his adversaries. even after he had become chief justice of the supreme court of the united states and throughout his long and epochal occupancy of that high place, marshall showed this same peculiarity which was so prominent in his practice at the bar. every contemporary student of marshall's method and equipment notes the meagerness of his learning in the law. "everyone has heard of the gigantick abilities of john marshall; as a most able and profound reasoner he deserves all the praise which has been lavished upon him," writes francis walker gilmer, in his keen and brilliant contemporary analysis of marshall. "his mind is not very richly stored with knowledge," he continues, "but it is so creative, so well organized by nature, or disciplined by early education, and constant habits of systematick thinking, that he embraces every subject with the clearness and facility of one prepared by previous study to comprehend and explain it."[ ] gustavus schmidt, who was a competent critic of legal attainments and whose study of marshall as a lawyer was painstaking and thorough, bears witness to marshall's scanty acquirements. "mr. marshall," says schmidt, "can hardly be regarded as a learned lawyer.... his acquaintance with the roman jurisprudence as well as with the laws of foreign countries was not very extensive. he was what is called a common law lawyer in the best & noblest acceptation of that term." mr. schmidt attempts to excuse marshall's want of those legal weapons which knowledge of the books supply. "he was educated for the bar," writes schmidt, "at a period when digests, abridgments & all the numerous facilities, which now smooth the path of the law student were almost unknown & when you often sought in vain in the reporters which usually wore the imposing form of folios, even for an index of the decisions & when marginal notes of the points determined in a case was a luxury not to be either looked for or expected. "at this period when the principles of the common law had to be studied in the black-letter pages of coke upon littleton, a work equally remarkable for quaintness of expression, profundity of research and the absence of all method in the arrangements of its very valuable materials; when the rules of pleading had to be looked for in chief justice saunders's reports, while the doctrinal parts of the jurisprudence, based almost exclusively on the precedents had to be sought after in the reports of dyer, plowden, coke, popham ... it was ... no easy task to become an able lawyer & it required no common share of industry and perseverance to amass sufficient knowledge of the law to make even a decent appearance in the forum."[ ] it would not be strange, therefore, if marshall did cite very few authorities in the scores of cases argued by him. but it seems certain that he would not have relied upon the "learning of the law" in any event; for at a later period, when precedents were more abundant and accessible, he still ignored them. even in these early years other counsel exhibited the results of much research; but not so marshall. in most of his arguments, as reported in volumes one, two, and four of call's virginia reports and in volumes one and two of washington's virginia reports,[ ] he depended on no authority whatever. frequently when the arguments of his associates and of opposing counsel show that they had explored the whole field of legal learning on the subject in hand, marshall referred to no precedent.[ ] the strongest feature of his argument was his statement of the case. the multitude of cases which marshall argued before the general court of appeals and before the high court of chancery at richmond covered every possible subject of litigation at that time. he lost almost as frequently as he won. out of one hundred and twenty-one cases reported, marshall was on the winning side sixty-two times and on the losing side fifty times. in two cases he was partly successful and partly unsuccessful, and in seven it is impossible to tell from the reports what the outcome was. once marshall appeared for clients whose cause was so weak that the court decided against him on his own argument, refusing to hear opposing counsel.[ ] he was extremely frank and honest with the court, and on one occasion went so far as to say that the opposing counsel was in the right and himself in the wrong.[ ] "my own opinion," he admitted to the court in this case, "is that the law is correctly stated by mr. ronald [the opposing counsel], but the point has been otherwise determined in the general court." marshall, of course, lost.[ ] nearly all the cases in which marshall was engaged concerned property rights. only three or four of the controversies in which he took part involved criminal law. a considerable part of the litigation in which he was employed was intricate and involved; and in this class of cases his lucid and orderly mind made him the intellectual master of the contending lawyers. marshall's ability to extract from the confusion of the most involved question its vital elements and to state those elements in simple terms was helpful to the court, and frankly appreciated by the judges. few letters of marshall to his fellow lawyers written during this period are extant. most of these are very brief and confined strictly to the particular cases which he had been retained by his associate attorneys throughout virginia to conduct before the court of appeals. occasionally, however, his humor breaks forth. "i cannot appear for donaghoe," writes marshall to a country member of the bar who lived in the valley over the mountains. "i do not decline his business from any objection to his _bank_. to that i should like very well to have free access & wou'd certainly discount _from_ it as largely as he wou'd permit, but i am already fixed by rankin & as those who are once in the bank do not i am told readily get out again i despair of being ever able to touch the guineas of donaghoe. "shall we never see you again in richmond? i was very much rejoiced when i heard that you were happily married but if that amounts to a ne exeat which is to confine you entirely to your side of the mountain, i shall be selfish enough to regret your good fortune & almost wish you had found some little crooked rib among the fish and oysters which would once a year drag you into this part of our terraqueous globe. "you have forgotten i believe the solemn compact we made to take a journey to philadelphia together this winter and superintend for a while the proceedings of congress."[ ] again, writing to stuart concerning a libel suit, marshall says: "whether the truth of the libel may be justified or not is a perfectly unsettled question. if in that respect the law here varies from the law of england it must be because such is the will of their honors for i know of no legislative act to vary it. it will however be right to appeal was it only to secure a compromise."[ ] marshall's sociableness and love of play made him the leader of the barbecue club, consisting of thirty of the most agreeable of the prominent men in richmond. membership in this club was eagerly sought and difficult to secure, two negatives being sufficient to reject a candidate. meetings were held each saturday, in pleasant weather, at "the springs" on the farm of mr. buchanan, the episcopal clergyman. there a generous meal was served and games played, quoits being the favorite sport. one such occasion of which there is a trustworthy account shows the humor, the wit, and the good-fellowship of marshall. he welcomed the invited guests, messrs. blair and buchanan, the famous "two parsons" of richmond, and then announced that a fine of a basket of champagne, imposed on two members for talking politics at a previous meeting of the club, had been paid and that the wine was at hand. it was drunk from tumblers and the presbyterian minister joked about the danger of those who "drank from tumblers _on_ the table becoming tumblers _under_ the table." marshall challenged "parson" blair to a game of quoits, each selecting four partners. his quoits were big, rough, heavy iron affairs that nobody else could throw, those of the other players being smaller and of polished brass. marshall rang the meg and blair threw his quoit directly over that of his opponent. loud were the cries of applause and a great controversy arose as to which player had won. the decision was left to the club with the understanding that when the question was determined they should "crack another bottle of champagne." marshall argued his own case with great solemnity and elaboration. the one first ringing the meg must be deemed the winner, unless his adversary knocked off the first quoit and put his own in its place. this required perfection, which blair did not possess. blair claimed to have won by being on top of marshall; but suppose he tried to reach heaven "by riding on my back," asked marshall. "i fear that from my many backslidings and deficiencies, he may be badly disappointed." blair's method was like playing leap frog, said he. and did anybody play backgammon in that way? also there was the ancient legal maxim, "_cujus est solum, ejus est usque ad coelum_": being "the first occupant his right extended from the ground up to the vault of heaven and no one had a right to become a squatter on his back." if blair had any claim "he must obtain a writ of ejectment or drive him [marshall] from his position vi et armis." marshall then cited the boys' game of marbles and, by analogy, proved that he had won and should be given the verdict of the club. wickham argued at length that the judgment of the club should be that "where two adversary quoits are on the same meg, neither is victorious." marshall's quoit was so big and heavy that no ordinary quoit could move it and "no rule requires an impossibility." as to marshall's insinuation that blair was trying to reach "elysium by mounting on his back," it was plain to the club that such was not the parson's intention, but that he meant only to get a more elevated view of earthly things. also blair, by "riding on that pinnacle," will be apt to arrive in time at the upper round of the ladder of fame. the legal maxim cited by marshall was really against his claim, since the ground belonged to mr. buchanan and marshall was as much of a "squatter" as blair was. "the first squatter was no better than the second." and why did marshall talk of ejecting him by force of arms? everybody knew that "parsons are men of peace and do not vanquish their antagonists _vi et armis_. we do not deserve to prolong this riding on mr. marshall's back; he is too much of a _rosinante_ to make the ride agreeable." the club declined to consider seriously marshall's comparison of the manly game of quoits with the boys' game of marbles, for had not one of the clergymen present preached a sermon on "marvel not"? there was no analogy to quoits in marshall's citation of leap frog nor of backgammon; and wickham closed, amid the cheers of the club, by pointing out the difference between quoits and leap frog. the club voted with impressive gravity, taking care to make the vote as even as possible and finally determined that the disputed throw was a draw. the game was resumed and marshall won.[ ] such were marshall's diversions when an attorney at richmond. his "lawyer dinners" at his house,[ ] his card playing at farmicola's tavern, his quoit-throwing and pleasant foolery at the barbecue club, and other similar amusements which served to take his mind from the grave problems on which, at other times, it was constantly working, were continued, as we shall see, and with increasing zest, after he became the world's leading jurist-statesman of his time. but neither as lawyer nor judge did these wholesome frivolities interfere with his serious work. marshall's first case of nation-wide interest, in which his argument gave him fame among lawyers throughout the country, was the historic controversy over the british debts. when congress enacted the judiciary law of and the national courts were established, british creditors at once began action to recover their long overdue debts. during the revolution, other states as well as virginia had passed laws confiscating the debts which their citizens owed british subjects and sequestering british property. under these laws, debtors could cancel their obligations in several ways. the treaty of peace between the united states and great britain provided, among other things, that "it is agreed that creditors on either side shall meet with no legal impediments to the recovery of the full value in sterling money of all bona fide debts heretofore contracted." the constitution provided that "all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding,"[ ] and that "the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority; to all cases ... between a state, or the citizens thereof, and foreign states citizens, or subjects."[ ] thus the case of ware, administrator, _vs._ hylton et al., which involved the validity of a state law in conflict with a treaty, attracted the attention of the whole country when finally it reached the supreme court. the question in that celebrated controversy was whether a state law, suspending the collection of a debt due to a subject of great britain, was valid as against the treaty which provided that no "legal impediment" should prevent the recovery of the obligation. ware _vs._ hylton was a test case; and its decision involved immense sums of money. large numbers of creditors who had sought to cancel their debts under the confiscation laws were vitally interested. marshall, in this case, made the notable argument that carried his reputation as a lawyer beyond virginia and won for him the admiration of the ablest men at the bar, regardless of their opinion of the merits of the controversy. it is an example of "the irony of fate" that in this historic legal contest marshall supported the theory which he had opposed throughout his public career thus far, and to demolish which his entire after life was given. more remarkable still, his efforts for his clients were opposed to his own interests; for, had he succeeded for those who employed him, he would have wrecked the only considerable business transaction in which he ever engaged.[ ] he was employed by the debtors to uphold those laws of virginia which sequestered british property and prevented the collection of the british debts; and he put forth all his power in this behalf. three such cases were pending in virginia; and these were heard twice by the national court in richmond as a consolidated cause, the real issue being the same in all. the second hearing was during the may term of before chief justice jay, justice iredell of the supreme court, and judge griffin of the united states district court. the attorneys for the british creditors were william ronald, john baker, john stark, and john wickham. for the defendants were alexander campbell, james innes, patrick henry, and john marshall. thus we see marshall, when thirty-six years of age, after ten years of practice at the richmond bar, interrupted as those years were by politics and legislative activities, one of the group of lawyers who, for power, brilliancy, and learning, were unsurpassed in america. the argument at the richmond hearing was a brilliant display of eloquence, reasoning, and erudition, and, among lawyers, its repute has reached even to the present day. counsel on both sides exerted every ounce of their strength. when patrick henry had finished his appeal, justice iredell was so overcome that he cried, "gracious god! he is an orator indeed!"[ ] the countess of huntingdon, who was then in richmond and heard the arguments of all the attorneys, declared: "if every one had spoken in westminster hall, they would have been honored with a peerage."[ ] in his formal opinion, justice iredell thus expressed his admiration: "the cause has been spoken to, at the bar, with a degree of ability equal to any occasion.... i shall as long as i live, remember with pleasure and respect the arguments which i have heard on this case: they have discovered an ingenuity, a depth of investigation, and a power of reasoning fully equal to anything i have ever witnessed.... fatigue has given way under its influence; the heart has been warmed, while the understanding has been instructed."[ ] marshall's argument before the district court of richmond must have impressed his debtor clients more than that of any other of their distinguished counsel, with the single exception of alexander campbell; for when, on appeal to the supreme court of the united states, the case came on for hearing in , we find that only marshall and campbell appeared for the debtors. it is unfortunate that marshall's argument before the supreme court at philadelphia is very poorly reported. but inadequate as the report is, it still reveals the peculiar clearness and the compact and simple reasoning which made up the whole of marshall's method, whether in legal arguments, political speeches, diplomatic letters, or judicial opinions. marshall argued that the virginia law barred the recovery of the debts regardless of the treaty. "it has been conceded," said he, "that independent nations have, in general, the right to confiscation; and that virginia, at the time of passing her law, was an independent nation." a state engaged in war has the powers of war, "and confiscation is one of those powers, weakening the party against whom it is employed and strengthening the party that employs it." nations have equal powers; and, from july , , america was as independent a nation as great britain. what would have happened if great britain had been victorious? "sequestration, confiscation, and proscription would have followed in the train of that event," asserted marshall. why, then, he asked, "should the confiscation of british property be deemed less just in the event of an american triumph?" property and its disposition is not a natural right, but the "creature of civil society, and subject in all respects to the disposition and control of civil institutions." even if "an individual has not the power of extinguishing his debts," still "the community to which he belongs ... may ... upon principles of public policy, prevent his creditors from recovering them." the ownership and control of property "is the offspring of the social state; not the incident of a state of nature. but the revolution did not reduce the inhabitants of america to a state of nature; and if it did, the plaintiff's claim would be at an end." virginia was within her rights when she confiscated these debts. as an independent nation virginia could do as she liked, declared marshall. legally, then, at the time of the treaty of peace in , "the defendant owed nothing to the plaintiff." did the treaty revive the debt thus extinguished? no: for the treaty provides "that creditors on either side shall meet with no lawful impediment to the recovery" of their debts. who are the creditors? "there cannot be a creditor where there is not a debt; and the british debts were extinguished by the act of confiscation," which was entirely legal. plainly, then, argued marshall, the treaty "must be construed with reference to those creditors" whose debts had not been extinguished by the sequestration laws. there were cases of such debts and it was to these only that the treaty applied. the virginia law must have been known to the commissioners who made the treaty; and it was unthinkable that they should attempt to repeal those laws in the treaty without using plain words to that effect. such is an outline of marshall's argument, as inaccurately and defectively reported.[ ] cold and dry as it appears in the reporter's notes, marshall's address to the supreme court made a tremendous impression on all who heard it. when he left the court-room, he was followed by admiring crowds. the ablest public men at the capital were watching marshall narrowly and these particularly were captivated by his argument. "his head is one of the best organized of any one that i have known," writes the keenly observant king, a year later, in giving to pinckney his estimate of marshall. "this i say from general reputation, and more satisfactorily from an argument that i heard him deliver before the fed'l court at philadelphia."[ ] king's judgment of marshall's intellectual strength was that generally held. marshall's speech had a more enduring effect on those who listened to it than any other address he ever made, excepting that on the jonathan robins case.[ ] twenty-four years afterwards william wirt, then at the summit of his brilliant career, advising francis gilmer upon the art of oratory, recalled marshall's argument in the british debts case as an example for gilmer to follow. wirt thus contrasts marshall's method with that of campbell on the same occasion:-- "campbell played off all his apollonian airs; but they were lost. marshall spoke, as he always does, to the judgment merely and for the simple purpose of convincing. marshall was justly pronounced one of the greatest men of the country; he was followed by crowds, looked upon, and courted with every evidence of admiration and respect for the great powers of his mind. campbell was neglected and slighted, and came home in disgust. "marshall's maxim seems always to have been, 'aim exclusively _at strength_:' and from his eminent success, i say, if i had my life to go over again, i would practice on his maxim with the most rigorous severity, until the character of my mind was established."[ ] [illustration] in another letter to gilmer, wirt again urges his son-in-law to imitate marshall's style. in his early career wirt had suffered in his own arguments from too much adornment which detracted from the real solidity and careful learning of his efforts at the bar. and when, finally, in his old age he had, through his own mistakes, learned the value of simplicity in statement and clear logic in argument, he counseled young gilmer accordingly. "in your arguments at the bar," he writes, "_let argument strongly predominate_. sacrifice your flowers.... avoid as you would the gates of death, the reputation for floridity.... imitate ... marshall's simple process of reasoning."[ ] following the advice of his distinguished brother-in-law, gilmer studied marshall with the hungry zeal of ambitious youth. thus it is that to francis gilmer we owe what is perhaps the truest analysis, made by a personal observer, of marshall's method as advocate and orator. "so perfect is his analysis," records gilmer, "that he extracts the whole matter, the kernel of the inquiry, unbroken, undivided, clean and entire. in this process, such is the instinctive neatness and precision of his mind that no superfluous thought, or even word, ever presents itself and still he says everything that seems appropriate to the subject. "this perfect exemption from any unnecessary encumbrance of matter or ornament, is in some degree the effect of an aversion for the labour of thinking. so great a mind, perhaps, like large bodies in the physical world, is with difficulty set in motion. that this is the case with mr. marshall's is manifest, from his mode of entering on an argument both in conversation and in publick debate. "it is difficult to rouse his faculties; he begins with reluctance, hesitation, and vacancy of eye; presently his articulation becomes less broken, his eye more fixed, until finally, his voice is full, clear, and rapid, his manner bold, and his whole face lighted up, with the mingled fires of genius and passion; and he pours forth the unbroken stream of eloquence, in a current deep, majestick, smooth, and strong. "he reminds one of some great bird, which flounders and flounces on the earth for a while before it acquires the impetus to sustain its soaring flight. "the characteristick of his eloquence is an irresistible cogency, and a luminous simplicity in the order of his reasoning. his arguments are remarkable for their separate and independent strength, and for the solid, compact, impenetrable order in which they are arrayed. "he certainly possesses in an eminent degree the power which had been ascribed to him, of mastering the most complicated subjects with facility, and when moving with his full momentum, even without the appearance of resistance." comparing marshall and randolph, gilmer says:-- "the powers of these two gentlemen are strikingly contrasted by nature. in mr. marshall's speeches, all is reasoning; in mr. randolph's everything is declamation. the former scarcely uses a figure; the latter hardly an abstraction. one is awkward; the other graceful. "one is indifferent as to his words, and slovenly in his pronunciation; the other adapts his phrases to the sense with poetick felicity; his voice to the sound with musical exactness. "there is no breach in the train of mr. marshall's thoughts; little connection between mr. randolph's. each has his separate excellence, but either is far from being a finished orator."[ ] another invaluable first-hand analysis of marshall's style and manner of argument is that of william wirt, himself, in the vivacious descriptions of "the british spy":-- "he possesses one original, and, almost supernatural faculty, the faculty of developing a subject by a single glance of his mind, and detecting at once, the very point on which every controversy depends. no matter what the question; though ten times more knotty than 'the gnarled oak,' the lightning of heaven is not more rapid nor more resistless, than his astonishing penetration. "nor does the exercise of it seem to cost him an effort. on the contrary, it is as easy as vision. i am persuaded that his eye does not fly over a landscape and take in its various objects with more promptitude and facility, than his mind embraces and analyses the most complex subject. "possessing while at the bar this intellectual elevation, which enabled him to look down and comprehend the whole ground at once, he determined immediately and without difficulty, on which side the question might be most advantageously approached and assailed. "in a bad cause his art consisted in laying his premises so remotely from the point directly in debate, or else in terms so general and so spacious, that the hearer, seeing no consequence which could be drawn from them, was just as willing to admit them as not; but his premises once admitted, the demonstration, however distant, followed as certainly, as cogently, as inevitably, as any demonstration in euclid."[ ] marshall's supremacy, now unchallenged, at the virginia bar was noted by foreign observers. la rochefoucauld testifies to this in his exhaustive volumes of travel:-- "mr. j. marshall, conspicuously eminent as a professor of the law, is beyond all doubt one of those who rank highest in the public opinion at richmond. he is what is termed a federalist, and perhaps somewhat warm in support of his opinions, but never exceeding the bounds of propriety, which a man of his goodness and prudence and knowledge is incapable of transgressing. "he may be considered as a distinguished character in the united states. his political enemies allow him to possess great talents but accuse him of ambition. i know not whether the charge be well or ill grounded, or whether that ambition might ever be able to impel him to a dereliction of his principles--a conduct of which i am inclined to disbelieve the possibility on his part. "he has already refused several employments under the general government, preferring the income derived from his professional labours (which is more than sufficient for his moderate system of economy), together with a life of tranquil ease in the midst of his family and in his native town. "even by his friends he is taxed with some little propensity to indolence; but even if this reproach were well founded, he nevertheless displays great superiority in his profession when he applies his mind to business."[ ] when jefferson foresaw marshall's permanent transfer to public life he advised james monroe to practice law in richmond because "the business is very profitable;[ ] ... and an opening of great importance must be made by the retirement of marshall."[ ] marshall's solid and brilliant performance in the british debts case before the supreme court at philadelphia did much more than advance him in his profession. it also focused upon him the keen scrutiny of the politicians and statesmen who at that time were in attendance upon congress in the quaker city. particularly did the strength and personality of the virginia advocate impress the federalist leaders. these vigilant men had learned of marshall's daring championship of the jay treaty in hostile virginia. and although in the case of ware _vs._ hylton, marshall was doing his utmost as a lawyer before the supreme court to defeat the collection of the british debts, yet his courageous advocacy of the jay treaty outweighed, in their judgment, his professional labors in behalf of the clients who had employed him. the federalist leaders were in sore need of southern support; and when marshall was in philadelphia on the british debts case, they were prompt and unsparing in their efforts to bind this strong and able man to them by personal ties. marshall himself unwittingly testifies to this. "i then [during this professional visit to philadelphia] became acquainted," he relates, "with mr. cabot, mr. ames, mr. dexter, and mr. sedgwick of massachusetts, mr. wadsworth of connecticut, and mr. king of new york. i was delighted with these gentlemen. the particular subject (the british treaty) which introduced me to their notice was at that time so interesting, and a virginian who supported, with any sort of reputation, the measures of the government, was such a _rara avis_, that i was received by them all with a degree of kindness which i had not anticipated. i was particularly intimate with mr. ames, and could scarcely gain credit with him when i assured him that the appropriations [to effectuate the treaty] would be seriously opposed in congress."[ ] as we shall presently see, marshall became associated with robert morris in the one great business undertaking of the former's life. early in this transaction when, for marshall, the skies were still clear of financial clouds, he appears to have made a small purchase of bank stock and ventured modestly into the commercial field. "i have received your letter of ulto," morris writes marshall, "& am negotiating for bank stock to answer your demand."[ ] and again: "i did not succeed in the purchase of the bank stock mentioned in my letter of the ^d ulto to you and as m^r richard tells me in his letter of the inst that you want the money for the stock, you may if you please draw upon me for $ giving me as much time in the sight as you can, and i will most certainly pay your drafts as they become due. the brokers shall fix the price of the stock at the market price at the time i pay the money & i will then state the am^t including dividends & remit you the balance but if you prefer having the stock i will buy it on receiving your answer to this, cost what it may."[ ] soon afterward, morris sent marshall the promised shares of stock, apparently to enable him to return shares to some person in richmond from whom he had borrowed them. "you will receive herewith enclosed the certificates for four shares of bank stock of the united states placed in your name to enable you to return the four shares to the gentlemen of whom you borrowed them, this i thought better than remitting the money lest some difficulty should arise about price of shares. two other shares in the name of m^r geo pickett is also enclosed herewith and i will go on buying and remitting others untill the number of ten are completed for him which shall be done before the time limited in your letter of the ^h ins^t the dividends shall also be remitted speedily."[ ] again washington desired marshall to fill an important public office, this time a place on the joint commission, provided for in the jay treaty, to settle the british claims. these, as we have seen, had been for many years a source of grave trouble between the two countries. their satisfactory adjustment would mean, not only the final settlement of this serious controversy, but the removal of an ever-present cause of war.[ ] but since marshall had refused appointment to three offices tendered him by washington, the president did not now communicate with him directly, but inquired of charles lee, attorney-general of virginia, whether marshall might be prevailed upon to accept this weighty and delicate business. "i have very little doubt," replied lee, "that mr. john marshall would not act as a commissioner under the treaty with great britain, for deciding on the claims of creditors. i have been long acquainted with his private affairs, and i think it almost impossible for him to undertake that office. if he would, i know not any objection that subsists against him. "first, he is not a debtor.[ ] secondly, he cannot be benefitted or injured by any decision of the commissioners. thirdly, his being employed as counsel, in suits of that kind, furnishes no reasonable objection; nor do i know of any opinions that he has published, or professes, that might, with a view of impartiality, make him liable to be objected to. "mr. marshall is at the head of his profession in virginia, enjoying every convenience and comfort; in the midst of his friends and the relations of his wife at richmond; in a practice of his profession that annually produces about five thousand dollars on an average; with a young and increasing family; and under a degree of necessity to continue his profession, for the purpose of complying with contracts not yet performed."[ ] the "contracts" which marshall had to fulfill concerned the one important financial adventure of his life. it was this, and not, as some suppose, the condition of his invalid wife, to which marshall vaguely referred in his letter to washington declining appointment as attorney-general and as minister to france. the two decades following the establishment of the national government under the constitution were years of enormous land speculation. hardly a prominent man of the period failed to secure large tracts of real estate, which could be had at absurdly low prices, and to hold the lands for the natural advance which increasing population would bring. the greatest of these investors was robert morris, the financier of the revolution, the second richest man of the time,[ ] and the leading business man of the country. [illustration] john marshall had long been the attorney in virginia for robert morris, who frequently visited that state, sometimes taking his family with him. in all probability, it was upon some such journey that james m. marshall, the brother of john marshall, met and became engaged to hester morris, daughter of the great speculator, whom he married on april , .[ ] james m. marshall--nine years younger than his brother--possessed ability almost equal to john marshall and wider and more varied accomplishments.[ ] it is likely that the pennsylvania financier, before the marriage, suggested to the marshall brothers the purchase of what remained of the fairfax estate in the northern neck, embracing over one hundred and sixty thousand acres of the best land in virginia.[ ] at any rate, sometime during or john marshall, his brother, james m. marshall, his brother-in-law, rawleigh colston, and general henry lee contracted for the purchase of this valuable holding.[ ] in january of that year james m. marshall sailed for england to close the bargain.[ ] the money to buy the fairfax lands was to be advanced by robert morris, who, partly for this purpose, sent james m. marshall to europe to negotiate[ ] loans, immediately after his marriage to hester morris. at amsterdam "some capitalists proposed to supply on very hard terms a sum more than sufficient to pay mr. fairfax," writes morris, and james m. marshall "has my authority to apply the first monies he receives on my acco^t to that payment."[ ] by the end of morris's over-speculations had gravely impaired his fortune. the old financier writes pathetically to james m. marshall: "i am struggling hard, very hard, indeed to regain my position." he tells his son-in-law that if a loan cannot be obtained on his other real estate he "expects these washington lotts will be the most certain of any property to raise money on"; and that "[i] will have a number of them placed under your controul."[ ] the loan failed, for the time being, but, writes morris to john marshall, "mr. hottenguer[ ] who first put the thing in motion says it will come on again" and succeed; "if so, your brother will, of course, be ready for mr. fairfax." morris is trying, he says, to raise money from other sources lest that should fail. "i am here distressed exceedingly in money matters," continues the harried and aging speculator "as indeed every body here are but i will immediately make such exertions as are in my power to place funds with your brother and i cannot but hope that his and my exertions will produce the needful in proper time to prevent mischief."[ ] a month later morris again writes john marshall that he is "extremely anxious & fearing that it [the amsterdam loan] may fall through i am trying to obtain a loan here for the purposes of your brother in london. this," says the now desperate financier, "is extremely difficult, for those who have money or credit in europe seem to dread every thing that is american." he assures john marshall that he will do his utmost. "my anxiety ... [to make good the fairfax purchase] is beyond what i can express." alexander baring "could supply the money ... but he parries me. he intends soon for the southward i will introduce him to you."[ ] the title to the fairfax estate had been the subject of controversy for many years. conflicting grants, overlapping boundaries, sequestration laws, the two treaties with great britain, were some of the elements that produced confusion and uncertainty in the public mind and especially in the minds of those holding lands within the grant. the only real and threatening clouds upon the title to the lands purchased by the marshall syndicate, however, were the confiscatory laws passed during the revolution[ ] which the treaty of peace and the jay treaty nullified.[ ] there were also questions growing out of grants made by the colonial authorities between and , but these were not weighty. the case of hunter _vs._ fairfax, devisee, involving these questions, was pending in the supreme court of the united states. john marshall went to philadelphia and tried to get the cause advanced and decided. he was sadly disappointed at his failure and so wrote his brother. "your brother has been here," writes morris to his son-in-law, "as you will see by a letter from him forwarded by this conveyance. he could not get your case brought forward in the supreme court of the u. s. at which he was much dissatisfied & i am much concerned thereat, fearing that real disadvantage will result to your concern thereby."[ ] the case came on for hearing in regular course during the fall term. hunter, on the death of his attorney, alexander campbell, prayed the court, by letter, for a continuance, which was granted over the protest of the fairfax attorneys of record, lee and ingersoll of philadelphia, who argued that "from the nature of the cause, delay would be worse for the defendant in error [the fairfax heir] than a decision adverse to his claim." the attorney-general stated that the issue before the court was "whether ... the defendant in error being an alien can take and hold the lands by devise. and it will be contended that his title is completely protected by the treaty of peace." mr. justice chase remarked: "i recollect that ... a decision in favor of such a devisee's title was given by a court in maryland. it is a matter, however, of great moment and ought to be deliberately and finally settled."[ ] the marshalls, of course, stood in the shoes of the fairfax devisee; had the supreme court decided against the fairfax title, their contract of purchase would have been nullified and, while they would not have secured the estate, they would have been relieved of the fairfax indebtedness. it was, then, a very grave matter to the marshalls, in common with all others deriving their titles from fairfax, that the question be settled quickly and permanently. a year or two before this purchase by the marshalls of what remained of the fairfax estate, more than two hundred settlers, occupying other parts of it, petitioned the legislature of virginia to quiet their titles.[ ] acting on these petitions and influenced, perhaps, by the controversy over the sequestration laws which the marshall purchase renewed, the legislature in passed a resolution proposing to compromise the dispute by the state's relinquishing "all claim to any lands specifically appropriated by ... lord fairfax to his own use either by deed or actual survey ... if the devises of lord fairfax, or those claiming under them, will relinquish all claims to lands ... which were waste and unappropriated at the time of the death of lord fairfax."[ ] acting for the purchasing syndicate, john marshall, in a letter to the speaker of the house, accepted this legislative offer of settlement upon the condition that "an act passes during this session confirming ... the title of those claiming under mr. fairfax the lands specifically appropriated and reserved by the late thomas lord fairfax or his ancestors for his or their use."[ ] when advised of what everybody then supposed to be the definitive settlement of this vexed controversy, robert morris wrote john marshall that "altho' you were obliged to give up a part of your claim yet it was probably better to do that than to hold a contest with such an opponent [state of virginia]. i will give notice to m^r. ja^s. marshall of this compromise."[ ] john marshall, now sure of the title, and more anxious than ever to consummate the deal by paying the fairfax heir, hastened to philadelphia to see morris about the money. "your brother john marshall esq^r. is now in this city," writes robert morris to his son-in-law, "and his principal business i believe is to see how you are provided with money to pay lord fairfax.... i am so sensible of the necessity there is for your being prepared for lord fairfax's payment that there is nothing within my power that i would not do to enable you to meet it."[ ] the members of the marshall syndicate pressed their philadelphia backer unremittingly, it appears, for a few days later he answers what seems to have been a petulant letter from colston assuring that partner in the fairfax transaction that he is doing his utmost to "raise the money to enable mr. james marshall to meet the payments for your purchase at least so far as it is incumbent on me to supply the means.... from the time named by john marshall esq^{re} when here, i feel perfect confidence, because i will furnish him before that period with such resources & aid as i think cannot fail."[ ] [illustration: page of james marshall's account with robert morris showing payment of £ to fairfax (_facsimile_)] finally marshall's brother negotiated the loan, an achievement which morris found "very pleasing, as it enables you to take the first steps with lord fairfax for securing your bargain."[ ] nearly forty thousand dollars of this loan was thus applied. in his book of accounts with morris, james m. marshall enters: "jany ' to £ paid the rev^d. denny fairfax and credited in your [morris's] account with me " (english pounds sterling).[ ] the total amount which the marshalls had agreed to pay for the remnant of the fairfax estate was "fourteen thousand pounds british money."[ ] when robert morris became bankrupt, payment of the remainder of the fairfax indebtedness fell on the shoulders of marshall and his brother. this financial burden caused marshall to break his rule of declining office and to accept appointment as one of our envoys to france at the time of robert morris's failure and imprisonment for debt; for from that public employment of less than one year, marshall, as we shall see, received in the sorely needed cash, over and above his expenses, three times the amount of his annual earnings at the bar.[ ] "mr. john marshall has said here," relates jefferson after marshall's return, "that had he not been appointed minister [envoy] to france, he was desperate in his affairs and must have sold his estate [the fairfax purchase] & that immediately. that that appointment was the greatest god-send that could ever have befallen a man."[ ] jefferson adds: "i have this from j. brown and s. t. mason [senator mason]."[ ] so it was that marshall accepted a place on the mission to france[ ] when it was offered to him by adams, who "by a miracle," as hamilton said, had been elected president.[ ] footnotes: [ ] _southern literary messenger_, , ii, - ; also see howe, . [ ] _southern literary messenger_, ii, - ; also howe, . apparently the older lawyer had been paid the one hundred dollars, for prepayment was customary in virginia at the time. (see la rochefoucauld, iii, .) this tale, fairly well authenticated, is so characteristic of marshall that it is important. it visualizes the man as he really was. (see jefferson's reference, in his letter to madison, to marshall's "lax, lounging manners," _supra_, .) [ ] story, in dillon, iii, . [ ] wirt: _the british spy_, - . [ ] mazzei's _recherches sur les États-unis_, published in this year ( ) in four volumes. [ ] marshall himself could not read french at this time. (see _infra_, chap. vi.) [ ] in this chapter of marshall's receipts and expenditures all items are from his account book, described in vol. i, chap. v, of this work. [ ] marshall's third child, mary, was born sept. , of this year. [ ] la rochefoucauld, iii, - . [ ] records, henrico county, virginia, deed book, iii, . [ ] in the city council of richmond presented this house to the association for the preservation of virginia antiquities, which now owns and occupies it. [ ] mordecai, - ; and _ib._, chap. vii. [ ] la rochefoucauld, iii, . negroes made up one third of the population. [ ] _ib._, ; also christian, . [ ] this celebrated french playwright and adventurer is soon to appear again at a dramatic moment of marshall's life. (see _infra_, chaps. vi to viii.) [ ] marshall's bill in equity in the "high court of chancery sitting in richmond," january , ; chamberlin mss., boston public library. marshall, then chief justice, personally drew this bill. after the fairfax transaction, he seems to have left to his brother and partner, james m. marshall, the practical handling of his business affairs. [ ] memorial of william f. ast and others; ms. archives, va. st. lib. [ ] christian, . [ ] this company is still doing business in richmond. [ ] christian, . [ ] the enterprise appears not to have filled the public with investing enthusiasm and no subscriptions to it were received. [ ] see _infra_, chap. x. [ ] marshall to james m. marshall, april , ; ms. this was the only one of marshall's sisters then unmarried. she was twenty years of age at this time and married major george keith taylor within a few months. he was a man of unusual ability and high character and became very successful in his profession. in he was appointed by president adams, united states judge for a virginia district. (see _infra_, chap. xii.) the union of mr. taylor and jane marshall turned out to be very happy indeed. (paxton, .) compare this letter of marshall with that of washington to his niece, in which he gives extensive advice on the subject of love and marriage. (washington to eleanor parke custis, jan. , ; _writings_: ford, xiii, - .) [ ] marshall to everett, july , . [ ] christian, . [ ] _richmond and manchester advertiser_, sept. , . [ ] _proceedings_ of the m. w. grand lodge of ancient york masons of the state of virginia, from to , by john dove, i, ; see also , . [ ] see _infra_, chap. x. [ ] see vol. i, chap. v, of this work. [ ] gilmer, - . [ ] gustavus schmidt, in _louisiana law journal_ ( ), - . [ ] for a list of cases argued by marshall and reported in call and washington, with title of case, date, volume, and page, see appendix i. [ ] a good illustration of a brilliant display of legal learning by associate and opposing counsel, and marshall's distaste for authorities when he could do without them, is the curious and interesting case of coleman _vs._ dick and pat, decided in , and reported in washington, . wickham for appellant and campbell for appellee cited ancient laws and treaties as far back as . marshall cited no authority whatever. [ ] see stevens _vs._ taliaferro, adm'r, washington, , spring term, . [ ] johnson _vs._ bourn, washington, , spring term, . [ ] _ib._ [ ] marshall to archibald stuart, march , ; ms., va. hist. soc. [ ] _ib._, may , . [ ] munford, - . [ ] see vol. iii of this work. [ ] constitution of the united states, article vi. [ ] _ib._, article iii, section . [ ] the fairfax deal; see _infra_, _et seq._ [ ] henry, ii, . [ ] howe, - . [ ] dallas, - , and footnote. in his opinion justice iredell decided for the debtors. when the supreme court of the united states, of which he was a member, reversed him in philadelphia, the following year, justice iredell, pursuant to a practice then existing, and on the advice of his brother justices, placed his original opinion on record along with those of justices chase, paterson, wilson, and cushing, each of whom delivered separate opinions in favor of the british creditors. [ ] for marshall's argument in the british debts case before the supreme court, see dallas, - . [ ] king to pinckney, oct. , ; king, ii, - . king refers to the british debts case, the only one in which marshall had made an argument before the supreme court up to this time. [ ] see _infra_, chap. xi. [ ] kennedy, ii, . mr. wirt remembered the argument well; but twenty-four years having elapsed, he had forgotten the case in which it was made. he says that it was the carriage tax case and that hamilton was one of the attorneys. but it was the british debts case and hamilton's name does not appear in the records. [ ] kennedy, ii, . francis w. gilmer was then the most brilliant young lawyer in virginia. his health became too frail for the hard work of the law; and his early death was universally mourned as the going out of the brightest light among the young men of the old dominion. [ ] gilmer, - . [ ] wirt: _the british spy_, - . [ ] la rochefoucauld, iii, . doubtless la rochefoucauld would have arrived at the above conclusion in any event, since his estimate of marshall is borne out by every contemporary observer; but it is worthy of note that the frenchman while in richmond spent much of his time in marshall's company. (_ib._, .) [ ] _ib._, . "the profession of a lawyer is ... one of the most profitable.... in virginia the lawyers usually take care to insist on payment before they proceed in a suit; and this custom is justified by the general disposition of the inhabitants to pay as little and as seldom as possible." [ ] jefferson to monroe, feb. , ; _works_: ford, viii, . marshall was in france at the time. (see _infra_, chaps. vi to viii inclusive.) [ ] story, in dillon, iii, . ware _vs._ hylton was argued feb. , , , , , and . the fight against the bill to carry out the jay treaty did not begin in the national house of representatives until march , . [ ] morris to marshall, may , ; morris's private letter book; ms., lib. cong. the stock referred to in this correspondence is probably that of the bank of the united states. [ ] morris to marshall, june , ; morris's private letter book; ms., lib. cong. [ ] morris to marshall, aug. , ; _ib._ [ ] the commission failed and war was narrowly averted by the payment of a lump sum to great britain. it is one of the curious turns of history that marshall, as secretary of state, made the proposition that finally concluded the matter and that jefferson consummated the transaction. (see _infra_, chap. xii.) [ ] lee means a debtor under the commission. marshall was a debtor to fairfax. (see _infra_.) [ ] lee to washington, march , ; _cor. rev._: sparks, iv, - . [ ] william bingham of philadelphia was reputed to be "the richest man of his time." (watson: _annals of philadelphia_ i. .) chastellux estimates morris's wealth at the close of the revolution at , , francs. (chastellux, .) he increased his fortune many fold from the close of the war to . the operations of robert morris in land were almost without limit. for instance, one of the smaller items of his purchases was , acres in burke county, north carolina. (robert morris to james m. marshall, sept. , ; morris's private letter book; ms., lib. cong.) another example of morris's scattered and detached deals was his purchase of a million acres "lying on the western counties of virginia ... purchased of william cary nicholas.... i do not consider one shilling sterling as one fourth the real value of the lands.... if, therefore," writes morris to james m. marshall, "a little over £ stg. could be made on this security it would be better than selling especially at ^d. per acre." (robert morris to james m. marshall, oct. , ; _ib._) morris owned at one time or another nearly all of the western half of new york state. (see oberholtzer, _et seq._) "you knew of mr. robert morris's purchase ... of one million, three hundred thousand acres of land of the state of massachusetts, at five pence per acre. it is said he has sold one million two hundred thousand acres of these in europe." (jefferson to washington, march , ; _cor. rev._: sparks, iv, .) patrick henry acquired considerable holdings which helped to make him, toward the end of his life, a wealthy man. washington, who had a keen eye for land values, became the owner of immense quantities of real estate. in he already possessed two hundred thousand acres. (de warville, .) [ ] oberholtzer, _et seq._ hester morris, at the time of her marriage to john marshall's brother, was the second greatest heiress in america. [ ] grigsby, i, footnote to . [ ] deed of lieutenant-general phillip martin (the fairfax heir who made the final conveyance) to rawleigh colston, john marshall, and james m. marshall; records at large, fauquier county (virginia) circuit court, _et seq._ at the time of the contract of purchase, however, the fairfax estate was supposed to be very much larger than the quantity of land conveyed in this deed. it was considerably reduced before the marshalls finally secured the title. [ ] lee is mentioned in all contemporary references to this transaction as one of the marshall syndicate, but his name does not appear in the morris correspondence nor in the deed of the fairfax heir to the marshall brothers and colston. [ ] j^s. marshall to ---- [edmund randolph] jan. , ; ms. archives department of state. marshall speaks of dispatches which he is carrying to pinckney, then american minister to great britain. this letter is incorrectly indexed in the archives as from john marshall. it is signed "j^s. marshall" and is in the handwriting of james m. marshall. john marshall was in richmond all this year, as his account book shows. [ ] morris to john marshall, nov. , ; and aug. , ; morris's private letter book; ms., lib. cong. [ ] morris to colston, nov. , ; _ib._ [ ] robert morris to james m. marshall, dec. , ; morris's private letter book; ms., lib. cong. by the expression "washington lotts" morris refers to his immense real estate speculations on the site of the proposed national capital. morris bought more lots in the newly laid out "federal city" than all other purchasers put together. seven thousand two hundred and thirty-four lots stood in his name when the site of washington was still a primeval forest. (oberholtzer, - .) some of these he afterwards transferred to the marshall brothers, undoubtedly to make good his engagement to furnish the money for the fairfax deal, which his failure prevented him from advancing entirely in cash. (for account of morris's real estate transactions in washington see la rochefoucauld, iii, - .) [ ] this hottenguer soon appears again in john marshall's life as one of talleyrand's agents who made the corrupt proposals to marshall, pinckney, and gerry, the american commissioners to france in the famous x.y.z. transaction of - . (see _infra_, chaps. vi to viii.) [ ] robert morris to john marshall, dec. , ; morris's private letter book; ms., lib. cong. [ ] morris to john marshall, jan. , ; morris's private letter book; ms., lib. cong. [ ] hening, ix, chap. ix, _et seq._; also _ib._, x, chap. xiv, _et seq._; xi, chap. xliv, - ; xi, chap. xlv, _et seq._; xi, chap. xlvii, _et seq._; xi, chap. xxx, _et seq._ [ ] such effect of these treaties was not yet conceded, however. [ ] morris to james m. marshall, march , ; morris's private letter book; ms., lib. cong. [ ] hunter _vs._ fairfax, devisee, dallas, , and footnote. [ ] originals in archives of virginia state library. most of the petitions were by germans, many of their signatures being in german script. they set forth their sufferings and hardships, their good faith, loss of papers, death of witnesses, etc. [ ] laws of virginia, revised code ( ), i, . [ ] laws of virginia, revised code ( ), i, . marshall's letter accepting the proposal of compromise is as follows:-- "richmond, november th, . "sir, being one of the purchasers of the lands of mr. fairfax, and authorized to act for them all, i have considered the resolution of the general assembly on the petitions of sundry inhabitants of the counties of hampshire, hardy, and shenandoah, and have determined to accede to the proposition it contains. "so soon as the conveyance shall be transmitted to me from mr. fairfax, deeds extinguishing his title to the waste and unappropriated lands in the northern neck shall be executed, provided an act passes during this session, confirming, on the execution of such deeds, the title of those claiming under mr. fairfax the lands specifically appropriated and reserved by the late thomas lord fairfax, or his ancestors, for his or their use. "i remain sir, with much respect and esteem, "your obedient servant, john marshall. "the honorable, the speaker of the house of delegates." (laws of virginia.) [ ] morris to john marshall, dec. , ; morris's private letter book; ms., lib. cong. [ ] morris to james m. marshall, feb. , ; morris's private letter book; ms., lib. cong. morris adds that "i mortgaged to col^o. hamilton , acres of genesee lands to secure payment of $ , to mr. church in five years. this land is worth at this moment in cash two dollars pr acre." [ ] morris to colston, feb. , ; _ib._ [ ] morris to james m. marshall, april , ; _ib._ [ ] ms. the entry was made in amsterdam and morris learned of the loan three months afterwards. [ ] records at large in clerk's office of circuit court of fauquier county, virginia, _et seq._ the deed was not filed until , at which time, undoubtedly, the marshalls made their last payment. [ ] see _infra_, chap. viii. it was probably this obligation too, that induced marshall, a few years later, to undertake the heavy task of writing the _life of washington_, quite as much as his passionate devotion to that greatest of americans. (see vol. iii of this work.) [ ] "anas," march , ; _works_: ford, i, . [ ] _ib._ misleading as jefferson's "anas" is, his information in this matter was indisputably accurate. [ ] see _infra_, chap. vi. a short time before the place on the french mission was tendered marshall, his father in kentucky resigned the office of supervisor of revenue for the district of ohio. in his letter of resignation thomas marshall gives a résumé of his experiences as an official under washington's administrations. since this is one of the only two existing letters of marshall's father on political subjects, and because it may have turned adams's mind to john marshall, it is worthy of reproduction:-- sir, having determined to resign my commission as supervisor of the revenue for the district of ohio, on the th day of june next, which terminates the present fiscal year, i have thought it right to give this timely notice to you as president of the united states, in whom the nomination and appointment of my successor is vested; in order that you may in the meantime select some fit person to fill the office. you will therefore be pleased to consider me as out of office on the first day of july ensuing. it may possibly be a subject of enquiry, why, after holding the office during the most critical & troublesome times, i should now resign it, when i am no longer insulted, and abused, for endeavoring to execute the laws of my country--when those laws appear to be, more than formerly, respected--and when the probability is, that in future they may be carried into effect with but little difficulty? in truth this very change, among other considerations, furnishes a reason for the decision i have made. for having once engaged in the business of revenue i presently found myself of sufficient importance with the enemies of the government here to be made an object of their particular malevolence--and while this was the case, i was determined not to be driven from my post. at this time, advanced in years and declining in health, i find myself unfit for the cares, and active duties of the office; and therefore cheerfully resign a situation, which i at first accepted and afterwards held, more from an attachment to the government, than from any pecuniary consideration, to be filled by some more active officer, as still more conducive to the public service. to the late president i had the honor of being known, and combined, with respect and veneration for his public character, the more social and ardent affections of the man, and of the friend. you sir i have not the honor to know personally, but you have filled too many important stations in the service of your country; & fame has been too busy with your name to permit me to remain ignorant of your character; for which in all its public relations permit me to say, i feel the most entire respect and esteem: nor is it to me among the smallest motives for my rejoicing that you are the president; and of my attachment to your administration to know that you have ever been on terms of friendship with the late president--that you have approved his administration,--and that you propose to yourself his conduct as an example for your imitation. on this occasion i may say without vanity that i have formerly and not infrequently, given ample testimony of my attachment to republican government, to the peace, liberty and happiness of my country and that it is not now to be supposed that i have changed my principles--or can esteem those who possess different ones. and altho' i am too old [thomas marshall was nearly sixty-five years of age when he wrote this letter] and infirm for active services, (for which i pray our country may not feel a call) yet my voice shall ever be excited in opposition to foreign influence, (from whence the greatest danger seems to threaten, as well as against internal foes) and in support of a manly, firm, and independent, exercise of those constitutional rights, which belong to the president, and government of the united states. and, _even opinions_, have their effect. i am sir with the most john adams, esq. entire respect and esteem president of the your very humble servt, united states. t. marshall. (thomas marshall to adams, april , ; ms., dept. of state.) [ ] see _infra_, chaps. xi and xii. chapter vi envoy to france my dearest life, continue to write to me, as my heart clings with delight only to what comes from you. (marshall to his wife.) he is a plain man, very sensible and cautious. (adams.) our poor insulted country has not before it the most flattering prospects. (marshall at antwerp.) "philadelphia july ^{nd} . "my dearest polly "i am here after a passage up the bay from baltimore.... i dined on saturday in private with the president whom i found a sensible plain candid good tempered man & was consequently much pleased with him. i am not certain when i shall sail.... so you ... my dearest life continue to write to me as your letters will follow me should i be gone before their arrival & as my heart clings with real pleasure & delight only to what comes from you. i was on friday evening at the faux hall of philadelphia.... the amusements were walking, sitting, punch ice cream etc music & conversation.... thus my dearest polly do i when not engaged in the very serious business which employs a large portion of my time endeavor by a-[muse]ments to preserve a mind at ease & [keep] it from brooding too much over my much loved & absent wife. by all that is dear on earth, i entreat you to do the same, for separation will not i trust be long & letters do everything to draw its sting. i am my dearest life your affectionate "j marshall."[ ] [illustration: first page of a letter from john marshall to his wife (_facsimile_)] so wrote john marshall at the first stage of his journey upon that critical diplomatic mission which was to prove the most dramatic in our history and which was to be the turning-point in marshall's life. from the time when mary ambler became his bride in , marshall had never been farther away from his richmond home than philadelphia, to which city he had made three flying visits in , one to argue the british debts case, the other two to see robert morris on the fairfax deal and to hasten the decision of the supreme court in that controversy. but now marshall was to cross the ocean as one of the american envoys to "the terrible republic" whose "power and vengeance" everybody dreaded.[ ] he was to go to that now arrogant paris whose streets were resounding with the shouts of french victories. it was the first and the last trans-atlantic voyage marshall ever undertook; and although he was to sail into a murky horizon to grapple with vast difficulties and unknown dangers, yet the mind of the home-loving virginian dwelt more on his richmond fireside than on the duties and hazards before him. three days after his arrival at philadelphia, impressionable as a boy, he again writes to his wife: "my dearest polly i have been extremely chagrined at not having yet received a letter from you. i hope you are well as i hear nothing indicating the contrary but you know not how solicitous how anxiously solicitous i am to hear it from yourself. write me that you are well & in good spirits & i shall set out on my voyage with a lightened heart ... you will hear from me more than once before my departure." the virginia envoy was much courted at philadelphia before he sailed. "i dined yesterday," marshall tells his wife, "in a very large company of senators & members of the house of representatives who met to celebrate the th of july. the company was really a most respectable one & i experienced from them the most flattering attention. i have much reason to be satisfied & pleased with the manner in which i am received here." but flattery did not soothe marshall--"something is wanting to make me happy," he tells his "dearest polly." "had i my dearest wife with me i should be delighted indeed."[ ] washington had sent letters in marshall's care to acquaintances in france commending him to their attention and good offices; and the retired president wrote marshall himself a letter of hearty good wishes. "receive sir," replies marshall, "my warm & grateful acknowledgments for the polite &, allow me to add, friendly wishes which you express concerning myself as well as for the honor of being mentioned in your letters."[ ] a less composed man, totally unpracticed as marshall was in diplomatic usages, when embarking on an adventure involving war or peace, would have occupied himself constantly in preparing for the vast business before him. not so marshall. while waiting for his ship, he indulged his love of the theater. again he tells his wife how much he misses her. "i cannot avoid writing to you because while doing so i seem to myself to be in some distant degree enjoying your company. i was last night at the play & saw the celebrated mrs. mary in the character of juliet. she performs that part to admiration indeed but i really do not think mrs. westig is far her inferior in it. i saw," gossips marshall, "mrs. heyward there. i have paid that lady one visit to one of the most delightful & romantic spots on the river schuylkil.... she expressed much pleasure to see me & has pressed me very much to repeat my visit. i hope i shall not have time to do so." marshall is already bored with the social life of philadelphia. "i am beyond expression impatient to set out on the embassy," he informs his wife. "the life i lead here does not suit me i am weary of it i dine out every day & am now engaged longer i hope than i shall stay. this dissipated life does not long suit my temper. i like it very well for a day or two but i begin to require a frugal repast with good cold water"--there was too much wine, it would seem, at philadelphia to suit marshall. "i would give a great deal to dine with you to day on a piece of cold meat with our boys beside us to see little mary running backwards & forwards over the floor playing the sweet little tricks she [is] full of.... i wish to heaven the time which must intervene before i can repass these delightful scenes was now terminated & that we were looking back on our separation instead of seeing it before us. farewell my dearest polly. make yourself happy & you will bless your ever affectionate "j. marshall."[ ] if marshall was pleased with adams, the president was equally impressed with his virginia envoy to france. "he [marshall] is a plain man very sensible, cautious, guarded, and learned in the law of nations.[ ] i think you will be pleased with him,"[ ] adams writes gerry, who was to be marshall's associate and whose capacity for the task even his intimate personal friend, the president, already distrusted. hamilton was also in philadelphia at the time[ ]--a circumstance which may or may not have been significant. it was, however, the first time, so far as definite evidence attests, that these men had met since they had been comrades and fellow officers in the revolution. the "aurora," the leading republican newspaper, was mildly sarcastic over marshall's ignorance of the french language and general lack of equipment for his diplomatic task. "mr. marshall, one of our extra envoys to france, will be eminently qualified for the mission by the time he reaches that country," says the "aurora." some official of great legal learning was coaching marshall, it seems, and advised him to read certain monarchical books on the old france and on the fate of the ancient republics. the "aurora" asks "whether some history of france since the overthrow of the monarchy would not have been more instructive to mr. marshall. the envoy, however," continues the "aurora," "approved the choice of his sagacious friend, but very shrewdly observed 'that he must first purchase chambaud's grammar, english and french.' we understand that he is a very apt scholar, and no doubt, during the passage, he will be able to acquire enough of the french jargon for all the purposes of the embassy."[ ] having received thirty-five hundred dollars for his expenses,[ ] marshall set sail on the brig grace for amsterdam where charles cotesworth pinckney, the expelled american minister to france and head of the mission, awaited him. as the land faded, marshall wrote, like any love-sick youth, another letter to his wife which he sent back by the pilot. "the land is just escaping from my view," writes marshall to his "dearest polly"; "the pilot is about to leave us & i hasten from the deck into the cabin once more to give myself the sweet indulgence of writing to you.... there has been so little wind that we are not yet entirely out of the bay. it is so wide however that the land has the appearance of a light blue cloud on the surface of the water & we shall very soon lose it entirely." marshall assures his wife that his "cabin is neat & clean. my berth a commodious one in which i have my own bed & sheets of which i have a plenty so that i lodge as conveniently as i could do in any place whatever & i find i sleep very soundly altho on water." he is careful to say that he has plenty of creature comforts. "we have for the voyage, the greatest plenty of salt provisions live stock & poultry & as we lay in our own liquors i have taken care to provide myself with a plenty of excellent porter wine & brandy. the captain is one of the most obliging men in the world & the vessel is said by every body to be a very fine one." there were passengers, too, who suited marshall's sociable disposition and who were "well disposed to make the voyage agreeable.... i have then my dearest polly every prospect before me of a passage such as i could wish in every respect but one ... fear of a lengthy passage. we have met in the bay several vessels. one from liverpool had been at sea nine weeks, & the others from other places had been proportionately long.... i shall be extremely impatient to hear from you & our dear children." marshall tells his wife how to direct her letters to him, "some ... by the way of london to the care of rufus king esquire our minister there, some by the way of amsterdam or the hague to the care of william vanns [_sic_] murr[a]y esquire our minister at the hague & perhaps some directed to me as envoy extraordinary of the united states to the french republic at paris. "do not i entreat you omit to write. some of your letters may miscarry but some will reach me & my heart can feel till my return no pleasure comparable to what will be given it by a line from you telling me that all remains well. farewell my dearest wife. your happiness will ever be the first prayer of your unceasingly affectionate "j. marshall."[ ] so fared forth john marshall upon the adventure which was to open the door to that historic career that lay just beyond it; and force him, against his will and his life's plans, to pass through it. but for this french mission, it is certain that marshall's life would have been devoted to his law practice and his private affairs. he now was sailing to meet the ablest and most cunning diplomatic mind in the contemporary world whose talents, however, were as yet known to but few; and to face the most venal and ruthless governing body of any which then directed the affairs of the nations of europe. unguessed and unexpected by the kindly, naïve, and inexperienced richmond lawyer were the scenes about to unroll before him; and the manner of his meeting the emergencies so soon to confront him was the passing of the great divide in his destiny. even had the french rulers been perfectly honest and simple men, the american envoys would have had no easy task. for american-french affairs were sadly tangled and involved. gouverneur morris, our first minister to france under the constitution, had made himself unwelcome to the french revolutionists; and to placate the authorities then reigning in paris, washington had recalled morris and appointed monroe in his place "after several attempts had failed to obtain a more eligible character."[ ] monroe, a partisan of the revolutionists, had begun his mission with theatrical blunders; and these he continued until his recall,[ ] when he climaxed his imprudent conduct by his attack on washington.[ ] during most of his mission monroe was under the influence of thomas paine,[ ] who had then become the venomous enemy of washington. monroe had refused to receive from his fellow minister to england, john jay, "confidential informal statements" as to the british treaty which jay prudently had sent him by word of mouth only. when the jay treaty itself arrived, monroe publicly denounced the treaty as "shameful,"[ ] a grave indiscretion in the diplomatic representative of the government that had negotiated the offending compact. finally monroe was recalled and washington, after having offered the french mission to john marshall, appointed charles cotesworth pinckney of south carolina as his successor. the french revolutionary authorities had bitterly resented the jay compact, accused the american government of violating its treaty with france, denounced the united states for ingratitude, and abused it for undue friendship to great britain. in all this the french directory had been and still was backed up by the republicans in the united states, who, long before this, had become a distinctly french party. thomas paine understated the case when he described "the republican party in the united states" as "that party which is the sincere ally of france."[ ] the french republic was showing its resentment by encouraging a piratical warfare by french privateers upon american commerce. indeed, vessels of the french government joined in these depredations. in this way, it thought to frighten the united states into taking the armed side of france against great britain. the french republic was emulating the recent outrages of that power; and, except that the french did not impress americans into their service, as the british had done, their government was furnishing to america the same cause for war that great britain had so brutally afforded. in less than a year and a half before marshall sailed from philadelphia, more than three hundred and forty american vessels had been taken by french privateers.[ ] over fifty-five million dollars' worth of american property had been destroyed or confiscated under the decrees of the directory.[ ] american seamen, captured on the high seas, had been beaten and imprisoned. the officers and crew of a french armed brig tortured captain walker, of the american ship cincinnatus, four hours by thumbscrews.[ ] when monroe learned that pinckney had been appointed to succeed him, he began a course of insinuations to his french friends against his successor; branded pinckney as an "aristocrat"; and thus sowed the seeds for the insulting treatment the latter received upon his appearance at the french capital.[ ] upon pinckney's arrival, the french directory refused to receive him, threatened him with arrest by the paris police, and finally ordered the new american minister out of the territory of the republic.[ ] to emphasize this affront, the directory made a great ado over the departure of monroe, who responded with a characteristic address. to this speech barras, then president of the directory, replied in a harangue insulting to the american government; it was, indeed, an open appeal to the american people to repudiate their own administration,[ ] of the same character as, and no less offensive than, the verbal performances of genêt. and still the outrages of french privateers on american ships continued with increasing fury.[ ] the news of pinckney's treatment and the speech of barras reached america after adams's inauguration. the president promptly called congress into a special session and delivered to the national legislature an address in which adams appears at his best. the "refusal [by the directory] ... to receive him [pinckney] until we had acceded to their demands without discussion and without investigation, is to treat us neither as allies nor as friends, nor as a sovereign state," said the president; who continued:-- "the speech of the president [barras] discloses sentiments more alarming than the refusal of a minister [pinckney], because more dangerous to our independence and union.... "it evinces a disposition to separate the people of the united states from the government, to persuade them that they have different affections, principles and interests from those of their fellow citizens whom they themselves have chosen to manage their common concerns and thus to produce divisions fatal to our peace. "such attempts ought to be repelled with a decision which shall convince france and the world that we are not a degraded people, humiliated under a colonial spirit of fear and sense of inferiority, fitted to be the miserable instruments of foreign influence, and regardless of national honor, character, and interest. "i should have been happy to have thrown a veil over these transactions if it had been possible to conceal them; but they have passed on the great theatre of the world, in the face of all europe and america, and with such circumstances of publicity and solemnity that they cannot be disguised and will not soon be forgotten. they have inflicted a wound in the american breast. it is my sincere desire, however, that it may be healed." nevertheless, so anxious was president adams for peace that he informed congress: "i shall institute a fresh attempt at negotiation.... if we have committed errors, and these can be demonstrated, we shall be willing to correct them; if we have done injuries, we shall be willing on conviction to redress them; and equal measures of justice we have a right to expect from france and every other nation."[ ] adams took this wise action against the judgment of the federalist leaders,[ ] who thought that, since the outrages upon american commerce had been committed by france and the formal insult to our minister had been perpetrated by france, the advances should come from the offending government. technically, they were right; practically, they were wrong. adams's action was sound as well as noble statesmanship. thus came about the extraordinary mission, of which marshall was a member, to adjust our differences with the french republic. the president had taken great care in selecting the envoys. he had considered hamilton, jefferson, and madison,[ ] for this delicate and fateful business; but the two latter, for reasons of practical politics, would not serve, and without one of them, hamilton's appointment was impossible. pinckney, waiting at amsterdam, was, of course, to head the commission. finally adams's choice fell on john marshall of virginia and francis dana, chief justice of the supreme court of massachusetts; and these nominations were confirmed by the senate.[ ] but dana declined,[ ] and, against the unanimous advice of his cabinet,[ ] adams then nominated elbridge gerry, who, though a republican, had, on account of their personal relations, voted for adams for president, apologizing, however, most humbly to jefferson for having done so.[ ] no appointment could have better pleased that unrivaled politician. gerry was in general agreement with jefferson and was, temperamentally, an easy instrument for craft to play upon. when gerry hesitated to accept, jefferson wrote his "dear friend" that "it was with infinite joy to me that you were yesterday announced to the senate" as one of the envoys; and he pleaded with gerry to undertake the mission.[ ] the leaders of the president's party in congress greatly deplored the selection of gerry. "no appointment could ... have been more injudicious," declared sedgwick.[ ] "if, sir, it was a desirable thing to distract the mission, a fitter person could not, perhaps, be found. it is ten to one against his agreeing with his colleagues," the secretary of war advised the president.[ ] indeed, adams himself was uneasy about gerry, and in a prophetic letter sought to forestall the very indiscretions which the latter afterwards committed. [illustration: part of letter of july , , from john adams to elbridge gerry describing john marshall (_facsimile_)] "there is the utmost necessity for harmony, complaisance, and condescension among the three envoys, and unanimity is of great importance," the president cautioned gerry. "it is," said adams, "my sincere desire that an accommodation may take place; but our national faith, and the honor of our government, cannot be sacrificed. you have known enough of the unpleasant effects of disunion among ministers to convince you of the necessity of avoiding it, like a rock or quicksand.... it is probable there will be manoeuvres practiced to excite jealousies among you."[ ] forty-eight days after marshall took ship at philadelphia, he arrived at the hague.[ ] the long voyage had been enlivened by the sight of many vessels and the boarding of marshall's ship three times by british men-of-war. "until our arrival in holland," marshall writes washington, "we saw only british & neutral vessels. this added to the blockade of the dutch fleet in the texel, of the french fleet in brest & of the spanish fleet in cadiz, manifests the entire dominion which one nation [great britain] at present possesses over the seas. "by the ships of war which met us we were three times visited & the conduct of those who came on board was such as wou'd proceed from general orders to pursue a system calculated to conciliate america. "whether this be occasion'd by a sense of justice & the obligations of good faith, or solely by the hope that the perfect contrast which it exhibits to the conduct of france may excite keener sensations at that conduct, its effects on our commerce is the same."[ ] it was a momentous hour in french history when the virginian landed on european soil. the french elections of had given to the conservatives a majority in the national assembly, and the directory was in danger. the day after marshall reached the dutch capital, the troops sent by bonaparte, that young eagle, his pinions already spread for his imperial flight, achieved the revolution of the th fructidor ( th of september); gave the ballot-shaken directory the support of bayonets; made it, in the end, the jealous but trembling tool of the youthful conqueror; and armed it with a power through which it nullified the french elections and cast into prison or drove into exile all who came under its displeasure or suspicion. with lodi, arcola, and other laurels upon his brow, the corsican already had begun his astonishing career as dictator of terms to europe. the native government of the netherlands had been replaced by one modeled on the french system; and the batavian republic, erected by french arms, had become the vassal and the tool of revolutionary france. three days after his arrival at the hague, marshall writes his wife of the safe ending of his voyage and how "very much pleased" he is with pinckney, whom he "immediately saw." they were waiting "anxiously" for gerry, marshall tells her. "we shall wait a week or ten days longer & shall then proceed on our journey [to paris]. you cannot conceive (yes you can conceive) how these delays perplex & mortify me. i fear i cannot return until the spring & that fear excites very much uneasiness & even regret at my having ever consented to cross the atlantic. i wish extremely to hear from you & to know your situation. my mind clings so to richmond that scarcely a night passes in which during the hours of sleep i have not some interesting conversation with you or concerning you." marshall tells his "dearest polly" about the appearance of the hague, its walks, buildings, and "a very extensive wood adjoining the city which extends to the sea," and which is "the pride & boast of the place." "the society at the hague is probably very difficult, to an american it certainly is, & i have no inclination to attempt to enter into it. while the differences with france subsist the political characters of this place are probably unwilling to be found frequently in company with our countrymen. it might give umbrage to france." pinckney had with him his wife and daughter, "who," writes marshall, "appears to be about or years of age. mrs. pinckney informs me that only one girl of her age has visited her since the residence of the family at the hague.[ ] in fact we seem to have no communication but with americans, or those who are employed by america or who have property in our country." while at the hague, marshall yields, as usual, to his love for the theater, although he cannot understand a word of the play. "near my lodgings is a theatre in which a french company performs three times a week," he tells his wife. "i have been frequently to the play & tho' i do not understand the language i am very much amused at it. the whole company is considered as having a great deal of merit but there is a madame de gazor who is considered as one of the first performers in paris who bears the palm in the estimation of every person." marshall narrates to his wife the result of the _coup d'état_ of september . "the directory," he writes, "with the aid of the soldiery have just put in arrest the most able & leading members of the legislature who were considered as moderate men & friends of peace. some conjecture that this event will so abridge our negotiations as probably to occasion my return to america this fall. a speedy return is my most ardent wish but to have my return expedited by the means i have spoken of is a circumstance so calamitous that i deprecate it as the greatest of evils. remember me affectionately to our friends & kiss for me our dear little mary. tell the boys how much i expect from them & how anxious i am to see them as well as their beloved mother. i am my dearest polly unalterably your "j marshall."[ ] the theaters and other attractions of the hague left marshall plenty of time, however, for serious and careful investigations. the result of these he details to washington. the following letter shows not only marshall's state of mind just before starting for paris, but also the effect of european conditions upon him and how strongly they already were confirming marshall's tendency of thought so firmly established by every event of his life since our war for independence:-- "tho' the face of the country [holland] still exhibits a degree of wealth & population perhaps unequal'd in any other part of europe, its decline is visible. the great city of amsterdam is in a state of blockade. more than two thirds of its shipping lie unemploy'd in port. other seaports suffer tho' not in so great a degree. in the meantime the requisitions made [by the french] upon them [the dutch] are enormous.... "it is supposed that france has by various means drawn from holland about , , of dollars. this has been paid, in addition to the national expenditures, by a population of less than , , .... not even peace can place holland in her former situation. antwerp will draw from amsterdam a large portion of that commerce which is the great source of its wealth; for antwerp possesses, in the existing state of things, advantages which not even weight of capital can entirely surmount." marshall then gives washington a clear and striking account of the political happenings among the dutch under french domination:-- "the political divisions of this country & its uncertainty concerning its future destiny must also have their operation.... "a constitution which i have not read, but which is stated to me to have contain'd all the great fundamentals of a representative government, & which has been prepar'd with infinite labor, & has experienc'd an uncommon length of discussion was rejected in the primary assemblies by a majority of nearly five to one of those who voted.... "the substitute wish'd for by its opponents is a legislature with a single branch having power only to initiate laws which are to derive their force from the sanction of the primary assemblies. i do not know how they wou'd organize it.... it is remarkable that the very men who have rejected the form of government propos'd to them have reëlected a great majority of the persons who prepar'd it & will probably make from it no essential departure.... it is worthy of notice that more than two thirds of those entitled to suffrage including perhaps more than four fifths of the property of the nation & who wish'd, as i am told, the adoption of the constitution, withheld their votes.... "many were restrain'd by an unwillingness to take the oath required before a vote could be receiv'd; many, disgusted with the present state of things, have come to the unwise determination of revenging themselves on those whom they charge with having occasion'd it by taking no part whatever in the politics of their country, & many seem to be indifferent to every consideration not immediately connected with their particular employments." holland's example made the deepest impression on marshall's mind. what he saw and heard fortified his already firm purpose not to permit america, if he could help it, to become the subordinate or ally of any foreign power. the concept of the american people as a separate and independent nation unattached to, unsupported by, and unafraid of any other country, which was growing rapidly to be the passion of marshall's life, was given fresh force by the humiliation and distress of the dutch under french control. "the political opinions which have produc'd the rejection of the constitution," marshall reasons in his report to washington, "& which, as it wou'd seem, can only be entertain'd by intemperate & ill inform'd minds unaccustom'd to a union of the theory & practice of liberty, must be associated with a general system which if brought into action will produce the same excesses here which have been so justly deplor'd in france. "the same materials exist tho' not in so great a degree. they have their clubs, they have a numerous poor & they have enormous wealth in the hands of a minority of the nation." marshall interviewed dutch citizens, in his casual, indolent, and charming way; and he thus relates to washington the sum of one such conversation:-- "on my remarking this to a very rich & intelligent merchant of amsterdam & observing that if one class of men withdrew itself from public duties & offices it wou'd immediately be succeeded by another which wou'd acquire a degree of power & influence that might be exercis'd to the destruction of those who had retir'd from society, he replied that the remark was just, but that they relied on france for a protection from those evils which she had herself experienc'd. that france wou'd continue to require great supplies from holland & knew its situation too well to permit it to become the prey of anarchy. "that holland was an artificial country acquired by persevering industry & which cou'd only be preserv'd by wealth & order. that confusion & anarchy wou'd banish a large portion of that wealth, wou'd dry up its sources & wou'd entirely disable them from giving france that pecuniary aid she so much needed. that under this impression very many who tho' friends to the revolution, saw with infinite mortification french troops garrison the towns of holland, wou'd now see their departure with equal regret. "thus, they willingly relinquish national independence for individual safety. what a lesson to those who wou'd admit foreign influence into the united states!" marshall then narrates the events in france which followed the _coup d'état_ of september . while this account is drawn from rumors and newspapers and therefore contains a few errors, it is remarkable on the whole for its general accuracy. no condensation can do justice to marshall's review of this period of french history in the making. it is of first importance, also, as disclosing his opinions of the government he was so soon to encounter and his convictions that unrestrained liberty must result in despotism. "you have observed the storm which has been long gathering in paris," continues marshall. "the thunderbolt has at length been launch'd at the heads of the leading members of the legislature & has, it is greatly to be fear'd, involv'd in one common ruin with them, the constitution & liberties of their country.... complete & impartial details concerning it will not easily be obtained as the press is no longer free. the journalists who had ventur'd to censure the proceedings of a majority of the directory are seiz'd, & against about forty of them a sentence of transportation is pronounced. "the press is plac'd under the superintendence of a police appointed by & dependent on the executive. it is supposed that all private letters have been seiz'd for inspection. "from some paris papers it appears, that on the first alarm, several members of the legislature attempted to assemble in their proper halls which they found clos'd & guarded by an arm'd force. sixty or seventy assembled at another place & began to remonstrate against the violence offer'd to their body, but fear soon dispersed them. "to destroy the possibility of a rallying point the municipal administrations of paris & the central administration of the seine were immediately suspended & forbidden by an arrêté of the directoire, to assemble themselves together. "many of the administrators of the departments through france elected by the people, had been previously remov'd & their places filled by persons chosen by the directory.... "the fragment of the legislature convok'd by the directory at l'odéon & l'école de santé, hasten'd to repeal the law for organizing the national guards, & authoriz'd the directory to introduce into paris as many troops as shou'd be judg'd necessary. the same day the liberty of the press was abolish'd by a line, property taken away by another & personal security destroy'd by a sentence of transportation against men unheard & untried. "all this," sarcastically remarks marshall, "is still the triumph of liberty & of the constitution." although admitting his lack of official information, marshall "briefly" observes that: "since the election of the new third, there were found in both branches of the legislature a majority in favor of moderate measures & apparently, wishing sincerely for peace. they have manifested a disposition which threaten'd a condemnation of the conduct of the directory towards america, a scrutiny into the transactions of italy, particularly those respecting venice & genoa, an enquiry into the disposition of public money & such a regular arrangement of the finances as wou'd prevent in future those dilapidations which are suspected to have grown out of their disorder. they [french conservatives] have sought too by their laws to ameliorate the situation of those whom terror had driven out of france, & of those priests who had committed no offense." marshall thus details to washington the excuse of the french radicals for their severe treatment of the conservatives:-- "the cry of a conspiracy to reëstablish royalism was immediately rais'd against them [conservatives]. an envoy was dispatched to the army of italy to sound its disposition. it was represented that the legislature was hostile to the armies, that it withheld their pay & subsistence, that by its opposition to the directory it encourag'd austria & britain to reject the terms of peace which were offer'd by france & which but for that opposition wou'd have been accepted, & finally that it had engag'd in a conspiracy for the destruction of the constitution & the republic & for the restoration of royalty. "at a feast given to the armies of italy to commemorate their fellow soldiers who had fallen in that country the generals address'd to them their complaints, plainly spoke of marching to paris to support the directory against the councils & received from them addresses manifesting the willingness of the soldiers to follow them. "the armies also addressed the directory & each other, & addresses were dispatched to different departments. the directory answer'd them by the stronge[st] criminations of the legislature. similar proceedings were had in the army of the interior commanded by gen^l. hoche. detachments were mov'd within the limits prohibited by the constitution, some of which declar'd they were marching to paris 'to bring the legislature to reason.'" here follows marshall's story of what then happened, according to the accounts which were given him at the hague:-- "alarm'd at these movements the council of five hundred call'd on the directory for an account of them. the movement of the troops within the constitutional circle was attributed to accident & the discontents of the army to the faults committed by the legislature who were plainly criminated as conspirators against the army & the republic. "this message was taken up by tronçon in the council of antients & by thibideau in the council of five hundred. i hope you have seen their speeches. they are able, & seem to me entirely exculpated the legislature. "in the mean time the directory employed itself in the removal of the administrators of many of the departments & cantons & replacing those whom the people had elected by others in whom it cou'd confide, and in the removal generally of such officers both civil & military as cou'd not be trusted to make room for others on whom it cou'd rely. "the legislature on its part, pass'd several laws to enforce the constitutional restrictions on the armies & endeavored to organize the national guards. on this latter subject especially pichegru, great & virtuous i believe in the cabinet as in the field, was indefatigable. we understand that the day before the law for their organization wou'd have been carried into execution the decisive blow was struck." marshall now relates, argumentatively, the facts as he heard them in the dutch capital; and in doing so, reveals his personal sentiments and prejudices:-- "to support the general charge of conspiracy in favor of royalty i know of no particular facts alleged against the arrested members except pichegru & two or three others.... pichegru is made in the first moment of conversation to unbosom himself entirely to a perfect stranger who had only told him that he came from the prince of conde & cou'd not exhibit a single line of testimonial of any sort to prove that he had ever seen that prince or that he was not a spy employ'd by some of the enemies of the general. "this story is repel'd by pichegru's character which has never before been defil'd. great as were the means he possess'd of personal aggrandizement he retir'd clean handed from the army without adding a shilling to his private fortune. it is repel'd by his resigning the supreme command, by his numerous victories subsequent to the alleged treason, by its own extreme absurdity & by the fear which his accusers show of bringing him to trial according to the constitution even before a tribunal they can influence & overawe, or of even permitting him to be heard before the prostrate body which is still term'd the legislature & which in defiance of the constitution has pronounc'd judgment on him. "yet this improbable & unsupported tale seems to be receiv'd as an established truth by those who the day before [his] fall bow'd to him as an idol. i am mortified as a man to learn that even his old army which conquer'd under him, which ador'd him, which partook of his fame & had heretofore not join'd their brethren in accusing the legislature, now unite in bestowing on him the heaviest execrations & do not hesitate to pronounce him a traitor of the deepest die." irrespective of the real merits of the controversy, marshall tells washington that he is convinced that constitutional liberty is dead or dying in france:-- "whether this conspiracy be real or not," he says, "the wounds inflicted on the constitution by the three directors seem to me to be mortal. in opposition to the express regulations of the constitution the armies have deliberated, the result of their deliberations addressed to the directory has been favorably received & the legislature since the revolution has superadded its thanks. "troops have been marched within those limits which by the constitution they are forbidden to enter but on the request of the legislature. the directory is forbidden to arrest a member of the legislature unless in the very commission of a criminal act & then he can only be tried by the high court, on which occasion forms calculated to protect his person from violence or the prejudice of the moment are carefully prescrib'd. "yet it has seized, by a military force, about fifty leading members not taken in a criminal act & has not pursued a single step mark'd out by the constitution. the councils can inflict no penalty on their own members other than reprimand, arrest for eight & imprisonment for three days. yet they have banished to such places as the directory shall chuse a large portion of their body without the poor formality of hearing a defense. "the legislature shall not exercise any judiciary power or pass any retrospective law. yet it has pronounc'd this heavy judgment on others as well as its own members & has taken from individuals property which the law has vested in them." marshall is already bitter against the directory because of its violation of the french constitution, and tells washington:-- "the members of the directory are personally secur'd by the same rules with those of the legislature. yet three directors have depriv'd two of their places, the legislature has then banished them without a hearing & has proceeded to fill up the alledg'd vacancies. merlin late minister of justice & françois de neufchatel have been elected. "the constitution forbids the house of any man to be entered in the night. the orders of the constituted authorities can only be executed in the day. yet many of the members were seiz'd in their beds. "indeed, sir, the constitution has been violated in so many instances that it wou'd require a pamphlet to detail them. the detail wou'd be unnecessary for the great principle seems to be introduc'd that the government is to be administered according to the will of the nation." marshall now indulges in his characteristic eloquence and peculiar method of argument:-- "necessity, the never to be worn out apology for violence, is alledg'd--but cou'd that necessity go further than to secure the persons of the conspirators? did it extend to the banishment of the printers & to the slavery of the press? if such a necessity did exist it was created by the disposition of the people at large & it is a truth which requires no demonstration that if a republican form of government cannot be administered by the general will, it cannot be administered against that will by an army." nevertheless, hope for constitutional liberty in france lingers in his heart in spite of this melancholy recital. "after all, the result may not be what is apprehended. france possesses such enormous power, such internal energy, such a vast population that she may possibly spare another million & preserve or reacquire her liberty. or, the form of the government being preserved, the independence of the legislature may be gradually recover'd. "with their form of government or resolutions we have certainly no right to intermeddle, but my regrets at the present state of things are increased by an apprehension that the rights of our country will not be deem'd so sacred under the existing system as they wou'd have been had the legislature preserved its legitimate authority."[ ] washington's reply, which probably reached marshall some time after the latter's historic letter to talleyrand in january, ,[ ] is informing. he "prays for a continuance" of such letters and hopes he will be able to congratulate marshall "on the favorable conclusion of your embassy.... to predict the contrary might be as unjust as it is impolitic, and therefore," says washington, "mum--on that topic. be the issue what it may," he is sure "that nothing which justice, sound reasoning, and fair representation would require will be wanting to render it just and honorable." if so, and the mission fails, "then the eyes of all who are not willfully blind ... will be fully opened." the directory will have a rude awakening, if they expect the republicans to support france against america in the "dernier ressort.... for the mass of our citizens require no more than to understand a question to decide it properly; and an adverse conclusion of the negotiation will effect this." washington plainly indicates that he wishes marshall to read his letter between the lines when he says: "i shall dwell very little on european politics ... because this letter may pass through many hands."[ ] gerry not arriving by september , marshall and pinckney set out for paris, "proceeding slowly in the hope of being overtaken" by their tardy associate. from antwerp marshall writes charles lee, then attorney-general, correcting some unimportant statements in his letter to washington, which, when written, were "considered as certainly true," but which "subsequent accounts contradict."[ ] down-heartedly he says:-- "our insulted injured country has not before it the most flattering prospects. there is no circumstance calculated to flatter us with the hope that our negotiations will terminate as they ought to do.... we understand that all is now quiet in france, the small show of resistance against which napoleon march'd is said to have dispersed on hearing of his movement." he then describes the celebration in antwerp of the birth of the new french régime:-- "to-day being the anniversary of the foundation of the republic, was celebrated with great pomp by the military at this place. very few indeed of the inhabitants attended the celebration. everything in antwerp wears the appearance of consternation and affright. "since the late revolution a proclamation has been published forbidding any priest to officiate who has not taken the oath prescribed by a late order. no priest at antwerp has taken it & yesterday commenced the suspension of their worship. "all the external marks of their religion too with which their streets abound are to be taken down. the distress of the people at the calamity is almost as great as if the town was to be given up to pillage."[ ] five days after leaving antwerp, marshall and pinckney arrived in the french capital. the paris of that time was still very much the paris of richelieu, except for some large buildings and other improvements begun by louis xiv. the french metropolis was in no sense a modern city and bore little resemblance to the paris of the present day. not until some years afterward did napoleon as emperor begin the changes which later, under napoleon iii, transformed it into the most beautiful city in the world. most of its ancient interest, as well as its mediæval discomforts, were in existence when marshall and pinckney reached their destination. the government was, in the american view, incredibly corrupt, and the lack of integrity among the rulers was felt even among the people. "the venality is such," wrote gouverneur morris, in , "that if there be no traitor it is because the enemy has not common sense."[ ] and again: "the ... administration is occupied in acquiring wealth."[ ] honesty was unknown, and, indeed, abhorrent, to most of the governing officials; and the moral sense of the citizens themselves had been stupefied by the great sums of money which bonaparte extracted from conquered cities and countries and sent to the treasury at paris. time and again the republic was saved from bankruptcy by the spoils of conquest; and long before the american envoys set foot in paris the popular as well as the official mind had come to expect the receipt of money from any source or by any means. the bribery of ministers of state and of members of the directory was a matter of course;[ ] and weaker countries paid cash for treaties with the arrogant government and purchased peace with a price. during this very year portugal was forced to advance a heavy bribe to talleyrand and the directory before the latter would consent to negotiate concerning a treaty; and, as a secret part of the compact, portugal was required to make a heavy loan to france. it was, indeed, a part of this very portuguese money with which the troops were brought to paris for the september revolution of .[ ] marshall and pinckney at once notified the french foreign office of their presence, but delayed presenting their letters of credence until gerry should join them before proceeding to business. a week passed; and marshall records in his diary that every day the waiting envoys were besieged by "americans whose vessels had been captured & condemned. by appeals & other dilatory means the money had been kept out of the hands of the captors & they were now waiting on expenses in the hope that our [the envoys'] negotiations might relieve them."[ ] a device, this, the real meaning of which was to be made plain when the hour should come to bring it to bear on the american envoys. such was the official and public atmosphere in which marshall and pinckney found themselves on their mission to adjust, with honor, the differences between france and america: a network of unofficial and secret agents was all about them; and at its center was the master spider, talleyrand. the unfrocked priest had been made foreign minister under the directory in the same month and almost the day that marshall embarked at philadelphia for paris. it largely was through the efforts and influence of madame de staël[ ] that this prince of intriguers was able to place his feet upon this first solid step of his amazing career. talleyrand's genius was then unknown to the world, and even the directory at that time had no inkling of his uncanny craft. to be sure, his previous life had been varied and dramatic and every page of it stamped with ability; but in the tremendous and flaming events of that tragic period he had not attracted wide attention. now, at last, talleyrand had his opportunity. among other incidents of his life had been his exile to america. for nearly two years and a half he had lived in the united states, traveling hither and yon through the forming nation. washington as president had refused to receive the expelled frenchman, who never forgave the slight. in his journey from state to state he had formed a poor opinion of the american people. "if," he wrote, "i have to stay here another year i shall die."[ ] the incongruities of what still was pioneer life, the illimitable forests, the confusion and strife of opinion, the absence of national spirit and general purpose, caused talleyrand to look with contempt upon the wilderness republic. but most of all, this future master spirit of european diplomacy was impressed with what seemed to him the sordid, money-grubbing character of the american people. nowhere did he find a spark of that idealism which had achieved our independence; and he concluded that gold was the american god.[ ] fauchet's disclosures[ ] had caused official paris to measure the american character by the same yardstick that talleyrand applied to us, when, on leaving our shores, he said: "the united states merit no more consideration than genoa or genève."[ ] the french foreign minister was not fairly established when the american affair came before him. not only was money his own pressing need, but to pander to the avarice of his master barras and the other corrupt members of the directory was his surest method of strengthening his, as yet, uncertain official position. such were talleyrand's mind, views, and station, when, three days after gerry's belated arrival, the newly installed minister received the american envoys informally at his house, "where his office was held." by a curious freak of fate, they found him closeted with the portuguese minister from whom the very conditions had been exacted which talleyrand so soon was to attempt to extort from the americans. it was a striking group--talleyrand, tall and thin of body, with pallid, shrunken cheeks and slumberous eyes, shambling forward with a limp, as, with halting speech,[ ] he coldly greeted his diplomatic visitors; gerry, small, erect, perfectly attired, the owl-like solemnity of his face made still heavier by his long nose and enormous wig; pinckney, handsome, well-dressed, clear-eyed, of open countenance;[ ] and marshall, tall, lean, loose-jointed, carelessly appareled, with only his brilliant eyes to hint at the alert mind and dominant personality of the man. talleyrand measured his adversaries instantly. gerry he had known in america and he weighed with just balance the qualities of the massachusetts envoy; pinckney he also had observed and feared nothing from the blunt, outspoken, and transparently honest but not in the least subtle or far-seeing south carolinian; the ill-appearing virginian, of whom he had never heard, talleyrand counted as a cipher. it was here that this keen and cynical student of human nature blundered. marshall and talleyrand were almost of an age,[ ] the frenchman being only a few months older than his virginia antagonist. the powers of neither were known to the other, as, indeed, they were at that time unguessed generally by the mass of the people, even of their own countries. [illustration: talleyrand] a month after talleyrand became the head of french foreign affairs, rufus king, then our minister at london, as soon as he had heard of the appointment of the american envoys, wrote talleyrand a conciliatory letter congratulating the french diplomat upon his appointment. king and talleyrand had often met both in england and america. "we have been accustomed," writes king, "to converse on every subject with the greatest freedom"; then, assuming the frankness of friendship, king tries to pave the way for marshall, pinckney, and gerry, without mentioning the latter, however. "from the moment i heard that you had been named to the department of foreign affairs," king assures talleyrand, "i have felt a satisfactory confidence that the cause of the increasing misunderstanding between us would cease, and that the overtures mediated by our government would not fail to restore harmony and friendship between the two countries."[ ] king might have saved his ink. talleyrand did not answer the letter; it is doubtful whether he even read it. at any rate, king's somewhat amateurish effort to beguile the french foreign minister by empty words utterly failed of its purpose. the americans received cold comfort from talleyrand; he was busy, he said, on a report on franco-american affairs asked for by the directory; when he had presented it to his superiors he would, he said, let the americans know "what steps were to follow." talleyrand saw to it, however, that the envoys received "cards of hospitality" which had been denied to pinckney. these saved the americans at least from offensive attentions from the police.[ ] three days later, a mr. church, an american-born french citizen, accompanied by his son, called on gerry, but found marshall, who was alone. from thomas paine, church had learned of plans of the directory concerning neutrals which, he assured marshall, "would be extremely advantageous to the united states." "do not urge your mission now," suggested church--the present was "a most unfavorable moment." haste meant that "all would probably be lost." what were these measures of the directory? asked marshall. church was not at liberty to disclose them, he said; but the envoys' "true policy was to wait for events." that night came a letter from the author of "common sense." "this letter," marshall records, "made very different impressions on us. i thought it an insult which ought to be received with that coldness which would forbid the repetition of it. mr. gerry was of a contrary opinion." marshall insisted that the directory knew of paine's letter and would learn of the envoys' answer, and that pinckney, gerry, and himself must act only as they knew the american government would approve. it was wrong, said he, and imprudent to lead the directory to expect anything else from the envoys; and paine's "aspersions on our government" should be resented.[ ] so began the break between marshall and gerry, which, considering the characters of the two men, was inevitable. next, talleyrand's confidential secretary confided to major mountflorence, of the american consulate, that the directory would require explanations of president adams's speech to congress, by which they were exasperated. the directory would not receive the envoys, he said, until the negotiations were over; but that persons would be appointed "to treat with" the americans, and that these agents would report to talleyrand, who would have "charge of the negotiations."[ ] mountflorence, of course, so advised the envoys. thus the curtain rose upon the melodrama now to be enacted--an episode without a parallel in the history of american diplomacy. to understand what follows, we must remember that the envoys were governed by careful, lengthy, and detailed instructions to the effect that "no blame or censure be directly, or indirectly, imputed to the united states"; that in order not to "wound her [france] feelings or to excite her resentment" the negotiations were to be on the principles of the british treaty; "that no engagement be made inconsistent with ... any prior treaty"; that "no restraint on our lawful commerce with any other nation be admitted"; that nothing be done "incompatible with the complete sovereignty and independence of the united states in matters of policy, commerce, and government"; and "_that no aid be stipulated in favor of france during the present war_."[ ] we are now to witness the acts in that strange play, known to american history as the x. y. z. mission, as theatrical a spectacle as any ever prepared for the stage. indeed, the episode differs from a performance behind the footlights chiefly in that in this curious arrangement the explanation comes after the acting is over. when the dispatches to the american government, which marshall now is to write, were transmitted to congress, diplomatic prudence caused the names of leading characters to be indicated only by certain letters of the alphabet. thus, this determining phase of our diplomatic history is known to the present day as "the x. y. z. affair." footnotes: [ ] marshall to his wife, july , ; ms. [ ] sedgwick to king, june , ; king, ii, . [ ] marshall to his wife, july , ; ms. [ ] marshall to washington, july , ; ms., lib. cong. [ ] marshall to his wife, july , ; ms. [ ] this, of course, was untrue, at that time. marshall probably listened with polite interest to adams, who was a master of the subject, and agreed with him. thus adams was impressed, as is the way of human nature. [ ] adams to gerry, july , ; _works_: adams, viii, . [ ] _aurora_, july , . [ ] _aurora_, july , . for documents given envoys by the government, see _am. st. prs., for. rel._, class i, ii, . [ ] marshall to secretary of state, july , ; memorandum by pickering; pickering mss., in _proc._, mass. hist. soc., xxi, . [ ] marshall to his wife, "the bay of delaware," july , ; ms. [ ] washington's remarks on monroe's "view"; _writings_: ford, xiii, . [ ] see mcmaster, ii, - , , . but monroe, although shallow, was well meaning; and he had good excuse for over-enthusiasm; for his instructions were: "let it be seen that in case of a war with any nation on earth, we shall consider france as our first and natural ally." (_am. st. prs., for. rel._, class i, ii, .) [ ] "view of the conduct of the executive of the united states, etc.," by james monroe (philadelphia, bache, publisher, ). this pamphlet is printed in full in monroe's _writings_: hamilton, iii, as an appendix. washington did not deign to notice monroe's attack publicly; but on the margin of monroe's book answered every point. extracts from monroe's "view" and washington's comments thereon are given in washington's _writings_: ford, xiii, - . jefferson not only approved but commended monroe's attack on washington. (see jefferson to monroe, oct. , ; _works_: ford, viii, - .) it is more than probable that he helped circulate it. (jefferson to eppes, dec. , ; _ib._, ; and to madison, feb. , ; _ib._, ; see also jefferson to monroe, dec. ; _ib._, . "your book was later coming than was to have been wished: however it works irresistibly. it would have been very gratifying to you to hear the unqualified eulogies ... by all who are not hostile to it from principle.") [ ] ticknor, ii, . [ ] for a condensed but accurate and impartial statement of monroe's conduct while minister, see gilman: _james monroe_ (american statesmen series), - . [ ] paine to editors of the _bien-informé_, sept. , ; _writings_: conway, iii, - . [ ] _am. st. prs., for. rel._, ii, - . [ ] see condensed summary of the american case in instructions to pinckney, marshall, and gerry; _ib._, - . [ ] _ib._, ; and for numerous other examples see _ib._, - . [ ] ticknor, ii, . [ ] pinckney to secretary of state, amsterdam, feb. , ; _am. st. prs., for. rel._, vii, . [ ] see barras's speech in _am. st. prs., for. rel._, ii, . [ ] see allen: _naval war with france_, - . [ ] adams, message to congress, may , ; richardson, i, - ; also, _works_: adams, ix, - . [ ] gibbs, ii, - . [ ] hamilton proposed jefferson or madison. (hamilton to pickering, march , ; lodge: _cabot_, .) [ ] _works_: adams, ix, - . [ ] _ib._ [ ] gibbs, i, , , and footnote to - . [ ] austin: _gerry_, ii, - . [ ] jefferson to gerry, june , ; _works_: ford, viii, . this letter flattered gerry's vanity and nullified adams's prudent advice to him given a few days later. (see _infra._) [ ] sedgwick to king, june , ; king, ii, . [ ] mchenry to adams, in cabinet meeting, ; steiner, . [ ] adams to gerry, july , ; _works_: adams, viii, - . nine days later the president again admonishes gerry. while expressing confidence in him, the president tells gerry that "some have expressed ... fears of an unaccommodating disposition [in gerry] and others of an obstinacy that will risk great things to secure small ones. "some have observed that there is, at present, a happy and perfect harmony among all our ministers abroad, and have expressed apprehension that your appointment might occasion an interruption of it." (adams to gerry, july , ; _ib._, .) [ ] marshall took the commission and instructions of john quincy adams as the american minister to prussia (_writings, j.q.a._: ford, ii, footnote to ), to which post the younger adams had been appointed by washington because of his brilliant "publicola" essays. [ ] marshall, to washington, the hague, sept. , ; washington mss., lib. cong. see citations _ib._, _infra_. (sparks mss., _proc._ mass. hist. soc., lxvi; also _amer. hist. rev._, ii, no. , jan., .) [ ] pinckney and his family had been living in holland for almost seven months. (pinckney to pickering, feb. , ; _am. st. prs., for. rel._, ii, .) [ ] marshall to his wife, the hague, sept. , , ms. marshall's brother had been in the hague july , but had gone to berlin. vans murray to j. q. adams, july , ; _letters_: ford, . apparently the brothers did not meet, notwithstanding the critical state of the fairfax contract. [ ] marshall to washington, the hague, sept. , ; _amer. hist. rev._, ii, no. , jan., ; and ms., lib. cong. [ ] see _infra_, next chapter. [ ] washington to marshall, dec. , ; _writings_: ford, xiii, - . [ ] to justify the violence of the th fructidor, the directory asserted that the french elections, in which a majority of conservatives and anti-revolutionists were returned and general pichegru chosen president of the french legislature, were parts of a royal conspiracy to destroy liberty and again place a king upon the throne of france. in these elections the french liberals, who were not in the army, did not vote; while all conservatives, who wished above all things for a stable and orderly government of law and for peace with other countries, flocked to the polls. among the latter, of course, were the few royalists who still remained in france. such, at least, was the view marshall took of this episode. to understand marshall's subsequent career, too much weight cannot be given this fact and, indeed, all the startling events in france during the six historic months of marshall's stay in paris. but marshall did not take into account the vital fact that the french soldiers had no chance to vote at this election. they were scattered far and wide--in italy, germany, and elsewhere. yet these very men were the soul of the revolutionary cause. and the private soldiers were more enraged by the result of the french elections than their generals--even than general augereau, who was tigerish in his wrath. they felt that, while they were fighting on the battlefield, they had been betrayed at the ballot box. to the soldiers of france the revolution of the th fructidor was the overthrow of their enemies in their own country. the army felt that it had answered with loyal bayonets a conspiracy of treasonable ballots. it now seems probable that the soldiers and officers of the french armies were right in this view. pinckney was absurdly accused of interfering in the elections in behalf of the "royalist conspiracy." (vans murray to j. q. adams, april , ; _letters_: ford, .) such a thing, of course, was perfectly impossible. [ ] marshall to lee, antwerp, sept. , ; ms., new york pub. lib. [ ] gouverneur morris to washington, feb., ; morris, ii, . while morris was an aristocrat, thoroughly hostile to democracy and without sympathy with or understanding of the french revolution, his statements of facts have proved to be generally accurate. (see lyman: _diplomacy of the united states_, i, , on corruption of the directory.) [ ] morris to pinckney, aug. , ; morris, ii, . [ ] loliée: _talleyrand and his times_, - . [ ] king to secretary of state, dispatch no. , nov. , ; king, ii, . [ ] marshall's journal, official copy, pickering papers, mass. hist. soc., . [ ] loliée: _talleyrand and his times_, ; and blennerhassett: _talleyrand_, ii, - . [ ] talleyrand to mme. de staël, quoted in mccabe: _talleyrand_, . [ ] _memoirs of talleyrand_: broglie's ed., i, - ; also see mccabe's summary in his _talleyrand_, - . talleyrand was greatly impressed by the statement of a new jersey farmer, who wished to see bingham rather than president washington because he had heard that bingham was "so wealthy.... throughout america i met with a similar love of money," says talleyrand. (_memoirs of talleyrand_: broglie's ed., i, .) in this estimate of american character during that period, talleyrand did not differ from other travelers, nor, indeed, from the opinion of most americans who expressed themselves upon this subject. (see vol. i, chaps. vii, and viii, of this work.) [ ] talleyrand as quoted in pickering to king, nov. , ; _pickering_: pickering, ii, . [ ] _am. st. prs., for. rel._, ii, . [ ] _memoirs of talleyrand_: stewarton, ii, . [ ] pinckney was the only one of the envoys who could speak french. he had received a finished education in england at westminster and oxford and afterward had studied in france at the royal military college at caen. [ ] marshall and talleyrand were forty-two years of age, pinckney fifty-one, and gerry fifty-three. [ ] king to talleyrand, london, aug. , ; king, ii, - . [ ] _am. st. prs., for. rel._, ii, ; marshall's journal, official copy; ms., mass. hist. soc., . the envoys' dispatches to the secretary of state were prepared by marshall, largely, from his journal. citations will be from the dispatches except when not including matter set out exclusively in marshall's journal. [ ] marshall's journal, oct. , - . [ ] _am. st. prs., for. rel._, ii, - , and . fulwar skipwith was consul; but mountflorence was connected with the office. [ ] _am. st. prs., for. rel._, ii, . italics are mine. chapter vii facing talleyrand society is divided into two classes; the shearers and the shorn. we should always be with the former against the latter. (talleyrand.) to lend money to a belligerent power is to relinquish our neutrality. (marshall.) diplomatically marshall and his associates found themselves marooned. many and long were their discussions of the situation. "we have had several conversations on the extraordinary silence of the government concerning our reception," writes marshall in his journal. "the plunder of our commerce sustains no abatements, the condemnations of our vessels are press'd with ardor ... our reception is postponed in a manner most unusual & contemptuous. "i urge repeatedly that we ought, in a respectful communication to the minister [talleyrand] ... to pray for a suspension of all further proceedings against american vessels until the further order of the directory.... "we have already permitted much time to pass away, we could not be charged with precipitation, & i am willing to wait two or three days longer but not more.... the existing state of things is to france the most beneficial & the most desirable, but to america it is ruinous. i therefore urge that in a few days we shall lay this interesting subject before the minister."[ ] marshall tells us that gerry again opposed action, holding that for the envoys to act would "irritate the [french] government." the directory "might take umbrage."[ ] besides, declared gerry, france was in a quandary what to do and "any movement on our part" would relieve her and put the blame on the envoys. "but," records marshall, "in the address i propose i would say nothing which could give umbrage, & if, as is to be feared, france is determined to be offended, she may quarrel with our answer to any proposition she may make or even with our silence." pinckney agreed with marshall; but they yielded to gerry in order to "preserve unanimity."[ ] tidings soon arrived of the crushing defeat of the dutch fleet by the british; and on the heels of this came reports that the directory were ready to negotiate with the americans.[ ] next morning, and four days after the mysterious intimations to the american envoys from talleyrand through his confidential secretary, a parisian business man called on pinckney and told him that a mr. hottenguer,[ ] "a native of switzerland who had been in america,"[ ] and "a gentleman of considerable credit and reputation," would call on pinckney. pinckney had met hottenguer on a former occasion, probably at the hague. that evening this cosmopolitan agent of financiers and foreign offices paid the expected visit. after a while hottenguer "whispered ... that he had a message from talleyrand." into the next room went pinckney and his caller. there hottenguer told pinckney that the directory were "exceedingly irritated" at president adams's speech and that "they should be softened." indeed, the envoys would not be received, said hottenguer, unless the mellowing process were applied to the wounded and angry directory. he was perfectly plain as to the method of soothing that sore and sensitive body--"money" for the pockets of its members and the foreign minister which would be "at the disposal of m. talleyrand." also a loan must be made to france. becoming still more explicit, hottenguer stated the exact amount of financial salve which must be applied in the first step of the healing treatment required from our envoys--a small bribe of one million two hundred thousand livres [about fifty thousand pounds sterling, or two hundred and fifty thousand dollars]. "it was absolutely required," reports marshall, "that we should ... pay the debts due by contract from france to our citizens ... pay for the spoliations committed on our commerce ... & make a considerable loan.... besides this, added mr. hottenguer, there must be something for the pocket ... for the private use of the directoire & minister under the form of satisfying claims which," says marshall, "did not in fact exist."[ ] pinckney reported to his colleagues. again the envoys divided as to the course to pursue. "i was decidedly of opinion," runs marshall's chronicle, "& so expressed myself, that such a proposition could not be made by a nation from whom any treaty, short of the absolute surrender of the independence of the united states was to be expected, but that if there was a possibility of accommodation, to give any countenance whatever to such a proposition would be certainly to destroy that possibility because it would induce france to demand from us terms to which it was impossible for us to accede. i therefore," continues marshall, "thought we ought, so soon as we could obtain the whole information, to treat the terms as inadmissible and without taking any notice of them to make some remonstrance to the minister on our situation & on that of our countrymen." pinckney agreed with marshall; gerry dissented and declared that "the whole negotiation ... would be entirely broken off if such an answer was given as i [marshall] had hinted & there would be a war between the two nations." at last it was decided to get hottenguer's proposition in writing.[ ] when pinckney so informed hottenguer, the latter announced that he had not dealt "immediately with talleyrand but through another gentleman in whom talleyrand had great confidence." hottenguer had no objection, however, to writing out his "suggestions," which he did the next evening.[ ] the following morning he advised the envoys that a mr. bellamy, "the confidential friend of m. talleyrand," would call and explain matters in person. decidedly, the fog was thickening. the envoys debated among themselves as to what should be done. "i again urg'd the necessity of breaking off this indirect mode of procedure," testifies marshall; but "mr. gerry reprobated precipitation, insisted on further explanations as we could not completely understand the scope & object of the propositions & conceiv'd that we ought not abruptly object to them." marshall and pinckney thought "that they [talleyrand's demands] were beyond our powers & ... amounted to a surrender of the independence of our country."[ ] but gerry had his way and the weaving of the spider's web went on. two hours after candlelight that evening hottenguer and bellamy entered marshall's room where the three americans were waiting for them; and bellamy was introduced as "the confidential friend of m. talleyrand," of whom hottenguer had told the envoys. bellamy was, says marshall, "a genevan now residing in hamburg but in paris on a visit."[ ] he went straight to the point. talleyrand, he confided to the envoys, was "a friend of america ... the kindness and civilities he had personally received in america" had touched his heart; and he was burning to "repay these kindnesses." but what could this anxious friend of america do when the cruel directory were so outraged at the american president's address to congress that they would neither receive the envoys nor authorize "talleyrand to have any communications with" them. bellamy pointed out that under these circumstances talleyrand could not, of course, communicate directly with the envoys; but "had authorized" him to deal with them "and to promise" that the french foreign minister would do his best to get the directory to receive the americans if the latter agreed to talleyrand's terms. nevertheless, bellamy "stated explicitly and repeatedly that he was clothed with no authority"--he was not a diplomat, he said, but only the trusted friend of talleyrand. he then pointed out the passages from adams's address[ ] which had so exasperated the french rulers and stated what the envoys must do to make headway. the american envoys, asserted bellamy, must make "a formal disavowal in writing ... that ... the speech of the citizen president," barras, was "not offensive" to america; must offer "reparation" for president adams's address; must affirm that the decree of the directory,[ ] which adams had denounced, was not "contrary to the treaty of "; must state "in writing" the depredations on american trade "by the english and french privateers," and must make "a formal declaration" that adams in his speech to congress had not referred to the french government or its agents: if all this were done "the french republic is disposed to renew their old-time relations with america" by a new treaty which should place france "with respect to the united states exactly on the same footing as they [the united states] should be with england." but, said bellamy, there must be a secret article of this new treaty providing for a loan from america to france.[ ] impossible as these terms were, the whole business must be preceded by a bribe. "i will not disguise from you," said bellamy, "that this situation being met, the essential part of the treaty remains to be adjusted.... _you must pay money--you must pay a great deal of money._" little was said about the two hundred and fifty thousand dollars bribe; "that," declare the envoys' dispatches to the american secretary of state, "being completely understood on all sides to be required for the officers of the government, and, therefore, needing no further explanation." when all these conditions were complied with, said bellamy, "m. talleyrand trusted that, by his influence with the directory, he could prevail on the government to receive" the americans. for two hours the talk ran on. before talleyrand's agents left, the anxiously hospitable gerry invited them to breakfast the next morning. into consultation once more went the envoys. "i pressed strongly," writes marshall in his journal, "the necessity of declaring that the propositions were totally inadmissible" and that "it was derogatory from the honor and wounded the real interests of our country to permit ourselves, while unacknowledg'd, to carry on this clandestine negotiation with persons who produced no evidence of being authoriz'd by the directoire or the minister to treat with us. mr. gerry was quite of a contrary opinion & the old beaten ground about precipitation &c. was trodden once again. gen'l pinckney advocated decidedly the same opinions with myself & we determined that the next morning should positively put an end to these conferences."[ ] "on our retiring," continues marshall's narrative, "mr. gerry began to propose further delays & that we shou'd inform them [talleyrand's go-betweens] that we wou'd take their propositions into consideration--i improperly interrupted him & declared that i wou'd not consent to any proposition of the sort, that the subject was already considered & that so far as my voice wou'd go i wou'd not permit it to be supposed longer that we cou'd deliberate on such propositions as were made to us." pinckney agreed with marshall; but, for harmony's sake, marshall finally said that he would return to america to "consult our government" on this express condition only--"that france should previously and immediately suspend all depredations upon american commerce." for once, gerry assented and a letter was written accordingly.[ ] hottenguer was prompt in his engagement to breakfast with gerry the next morning; but bellamy did not come till ten o'clock, explaining that he had been closeted with talleyrand. bellamy was much depressed; the directory, he declared, would not receive the envoys until the latter had disavowed president adams's speech, _unless_ they "could find the means to change their [the directory's] determination in this particular." what were such "means?" asked the envoys. "i am not authorized to state them," said bellamy. "you must search for them and propose them yourselves." still, bellamy, merely as an individual, was willing to suggest such "means." it was money, he explained. the "directory were jealous of their own honor and the honor of the nation"; they demanded the same treatment formerly accorded to the king; and their "honor must be maintained in the manner required" unless "the envoys substituted ... something perhaps more valuable, and that was money."[ ] it was all so simple, according to bellamy. all that the envoys had to do was to buy thirty-two million florins of dutch inscriptions at twenty shillings to the pound. "it was certain," he assured the americans, "that after a time the dutch government would repay ... the money, so that america would ultimately lose nothing" and everybody would be happy. but even if the envoys made the loan in this way, the bribe of two hundred and fifty thousand dollars must be paid in addition. thereupon the envoys handed him the letter which marshall had prepared the night before, which stated that they had no power to make a loan, but could send one of their number to america for consultation and instruction. bellamy was "disappointed" and at once modified his language. why did the envoys treat the money proposition as coming from the directory? it was only his own personal suggestion. then "what has led to our present conversation?" asked the envoys. pinckney recalled hottenguer's first visit and the latter confirmed pinckney's account. upon the envoys stating the differences between france and america, to settle which was the purpose of their mission, and gently resenting the demands made upon them, bellamy became excited. the envoys' conduct was not to be borne, he exclaimed; let them beware of the resentment of france. they "could not help it," answered the envoys--the directory must look after france; the envoys must look after the united states. bellamy was "in despair." what a provincial view these americans took of a diplomatic negotiation! they must broaden their horizon. they must acquire worldly wisdom. they must remember "the respect which the directory required"; they must realize that that august body "would exact as much as was paid to the ancient kings." the envoys would not be received without it; that was flat, bellamy informed them; and "he seemed to shudder at the consequences." marshall and pinckney simply would not see the point. but gerry was a man of the world who could understand european diplomacy. marshall declared that the envoys were there to adjust international differences. if, however, france "would make war," then, said they: "we regret the unavoidable necessity of defending ourselves."[ ] for a little while talleyrand's leeches dropped away from the perplexed americans. marshall reported to washington french conditions as he had observed them up to that time. he confirms to the former president the american report that french agriculture had been improved "in the course of the present war":-- "in that part of the country through which i have passed the evidences of plenty abound. the whole earth appears to be in cultivation & the harvests of the present year appear to be as productive as the fields which yield them are extensive. "i am informed that every part of the country exhibits the same aspect. if this be the fact, there will probably remain, notwithstanding the demands of the armies, a surplus of provisions." marshall briefly but clearly analyzes the economic and commercial outcome of the war:-- "manufactures have declined in the same ratio that the cultivation of the soil has increas'd. war has been made upon the great manufacturing towns & they are in a considerable degree destroy'd. with manufactures france does not supply herself fully from her internal resources. "those of britain flow in upon her notwithstanding the most severe prohibitory laws. the port of rotterdam is purposely left open by the english & their goods are imported by the dutch under prussian and other neutral colors. they are smuggled in great quantities into france. "peace, then, will find this [french] nation entirely competent to the full supply of her colonies with provisions and needing manufactures to be imported for her own consumption.... france can take from america tobacco & raw cotton she can supply us with wines, brandies & silks." marshall then makes a searching commentary on french politics. "the existing political state of france is connected with certain internal & powerfully operating causes by which it has been & will continue to be greatly influenc'd. not the least of these is the tenure by which property is held. "in the course of the revolution it is believed that more than half the land of france has become national.[ ] of this a very considerable proportion has been sold at a low rate. "it is true that much of it belonged to those who have fallen under the guillotine or who have been termed emigrants. among the emigrants are many whose attachment to their country has never been shaken; & what is remarkable, among them are many who were never out of france. the law upon this subject is worthy of attention. "any two persons, no matter what their reputation, may, to some authority, i believe the municipality of the district, write & subscribe against any person whatever a charge, that such person is an emigrant, on receipt of which the person so charg'd is without further investigation inscribed on the list of emigrants. "if the person so inscribed be afterwards apprehended while his name remains on the list, the trial, as i understand, is, not of the fact of emigration, but of the identity of the persons, & if this identity be established, he is instantly fusiller'd [shot]. the law is either rightly executed or permitted to be relax'd, as the occasion or the temper of the times may direct. "during intervals of humanity some disposition has been manifested to permit the return of those who have never offended, who have been banished by a terror which the government itself has reprobated, & to permit in case of arrestation, an investigation of the fact of emigration as well as of the identity of the person accus'd. "there is too a great deal of property which has been sold as national but which in truth was never so, & which may be reclaimed by the original proprietors. "in this state the acquirers of national property are of course extremely suspicious. they form a vast proportion of the population of france. they are not only important in consequence of their numbers, but in consequence of their vigor, their activity & that unity of interest which produces a unity of effort among them. "the armies too have been promised a milliard. this promise rests upon the national property for its performance. the effect of these circumstances cannot escape your observation. classes of citizens are to be disfranchised against the next election." marshall and pinckney, at this early stage of talleyrand's financial-diplomatic intrigue, were so disgusted that they were on the point of "returning to america immediately." the continuance of french depredations on the high seas caused marshall to write to washington as follows:-- "the captures of our vessels seem to be only limited by the ability to capture. that ability is increasing, as the government has let out to hardy adventurers the national frigates. among those who plunder us, who are most active in this infamous business, & most loud in vociferating criminations equally absurd and untrue, are some unprincipled apostates who were born in america. "these sea rovers by a variety of means seem to have acquired great influence in the government. "this influence will be exerted to prevent an accommodation between the united states & france and to prevent any regulations which may intercept the passage of the spoils they have made on our commerce, to their pockets. the government i believe is too well disposed to promote their views. at present it seems to me to be radically hostile to our country. "i cou'd wish to form a contrary opinion, but to do so i must shut my eyes on every object which presents itself to them & fabricate in my own mind non-existing things, to be substituted for realities, & to form the basis of my creed. "might i be permitted to hazard an opinion it wou'd be the atlantic only can save us, & that no consideration will be sufficiently powerful to check the extremities to which the temper of this government will carry it, but an apprehension that we may be thrown into the arms of britain." although the treaty of campo formio had been signed on the th of october, paris had not yet heard of it. this treaty marked bonaparte as the most constructive diplomat, as well as the foremost captain, of the age, for such he had already proved himself to be. a week later, when marshall wrote the above letter to washington (october , ), he reported that "the negotiations with the emperor of austria are said not to have been absolutely broken off. yesterday it was said that peace with him was certain. several couriers have arrived lately from buonaparte & the national debt rose yesterday from seven to ten livres in the hundred. whether this is founded on a real expectation of peace with austria or is the mere work of stock jobbers is not for me to decide." but three days afterward (october ) the news reached paris; and marshall adds this postscript: "the definitive peace is made with the emperor. you will have seen the conditions. venice has experienced the fate of poland. england is threatened with an invasion."[ ] the thunders of cannon announcing bonaparte's success were still rolling through paris when talleyrand's plotters again descended upon the american envoys. bellamy came and, pinckney and gerry being at the opera, saw marshall alone. the triumph of bonaparte was his theme. the victorious general was now ready to invade england, announced bellamy; but "concerning america not a syllable was said."[ ] already talleyrand, sensitive as any hawk to coming changes in the political weather, had begun to insinuate himself into the confidence of the future conqueror of europe, whose diplomatic right arm he so soon was to become. the next morning the thrifty hottenguer again visits the envoys. bonaparte's success in the negotiations of campo formio, which sealed the victories of the french arms, has alarmed hottenguer, he declares, for the success of the american mission. why, he asks, have the americans made no proposition to the directory? that haughty body "were becoming impatient and would take a decided course in regard to america" if the envoys "could not soften them," exclaims talleyrand's solicitous messenger. surely the envoys can see that bonaparte's treaty with austria has changed everything, and that therefore the envoys themselves must change accordingly. exhibiting great emotion, hottenguer asserts that the directory have determined "that all nations should aid them [the french], or be considered and treated as enemies." think, he cries, of the "power and violence of france." think of the present danger the envoys are in. think of the wisdom of "softening the directory." but he hints that "the directory might be made more friendly." gain time! gain time! give the bribe, and gain time! the wily agent advises the americans. otherwise, france may declare war against america. that would be most unfortunate, answer the envoys, but assert that the present american "situation was more ruinous than a declared war could be"; for now american "commerce was floundering unprotected." in case of war "america would protect herself." "you do not speak to the point," hottenguer passionately cries out; "it is money; it is expected that you will offer money." "we have given an answer to that demand," the envoys reply. "no," exclaims hottenguer, "you have not! what is your answer?" "it is no," shouts pinckney; "no; not a sixpence!" the persistent hottenguer does not desist. he tells the envoys that they do not know the kind of men they are dealing with. the directory, he insists, disregard the justice of american claims; care nothing even for the french colonies; "consider themselves as perfectly invulnerable" from the united states. money is the only thing that will interest such terrible men. the americans, parrying, ask whether, even if they give money, talleyrand will furnish proofs that it will produce results. hottenguer evades the question. a long discussion ensues. pay the bribe, again and again urges the irritated but tenacious go-between. does not your government "know that nothing is to be obtained here without money?" "our government had not even suspected such a state of things," declare the amazed americans. "well," answers hottenguer, "there is not an american in paris who could not have given that information.... hamburgh and other states of europe were obliged to buy peace ... nothing could resist" the power of france; let the envoys think of "the danger of a breach with her."[ ] thus far pinckney mostly had spoken for the envoys. marshall now took up the american case. few utterances ever made by him more clearly reveal the mettle of the man; and none better show his conception of the american nation's rights, dignity, and station among the governments of the world. [illustration: charles cotesworth pinckney] "i told him [hottenguer]," writes marshall, "that ... no nation estimated her [france's] power more highly than america or wished more to be on amicable terms with her, but that one object was still dearer to us than the friendship of france which was our national independence. that america had taken a neutral station. she had a right to take it. no nation had a right to force us out of it. that to lend ... money to a belligerent power abounding in every thing requisite for war but money was to relinquish our neutrality and take part in the war. to lend this money under the lash & coercion of france was to relinquish the government of ourselves & to submit to a foreign government imposed on us by force," marshall declared. "that we would make at least one manly struggle before we thus surrendered our national independence. "our case was different from that of the minor nations of europe," he explained. "they were unable to maintain their independence & did not expect to do so. america was a great, & so far as concerned her self-defense, a powerful nation. she was able to maintain her independence & must deserve to lose it if she permitted it to be wrested from her. france & britain have been at war for near fifty years of the last hundred & might probably be at war for fifty years of the century to come." marshall asserted that "america has no motives which could induce her to involve herself in those wars and that if she now preserved her neutrality & her independence it was most probable that she would not in future be afraid as she had been for four years past--but if she now surrendered her rights of self government to france or permitted them to be taken from her she could not expect to recover them or to remain neutral in any future war."[ ] for two hours talleyrand's emissary pleads, threatens, bullies, argues, expostulates. finally, he departs to consult with his fellow conspirator, or to see talleyrand, the master of both. thus ran the opening dialogue between the french bribe procurers and the american envoys. day after day, week after week, the plot ran on like a play upon the stage. "a mr. hauteval whose fortune lay in the island of st. domingo" called on gerry and revealed how pained talleyrand was that the envoys had not visited him. again came hauteval, whom marshall judged to be the only one of the agents "solicitous of preserving peace." thus far the envoys had met with the same request, that they "call upon talleyrand at private hours." marshall and pinckney said that, "having been treated in a manner extremely disrespectful" to their country, they could not visit the minister of foreign affairs "in the existing state of things ... unless he should expressly signify his wish" to see them "& would appoint a time & place." but, says marshall, "mr. gerry having known mr. talleyrand in boston considered it a piece of personal respect to wait on him & said that he would do so."[ ] hottenguer again calls to explain how anxious talleyrand was to serve the envoys. make "one more effort," he urges, "to enable him to do so." bonaparte's daring plan for the invasion of england was under way and hottenguer makes the most of this. "the power and haughtiness of france," the inevitable destruction of england, the terrible consequences to america, are revealed to the americans. "pay by way of fees" the two hundred and fifty thousand dollar bribe, and the directory would allow the envoys to stay in paris; talleyrand would then even consent to receive them while one of them went to america for instructions.[ ] why hesitate? it was the usual thing; the portuguese minister had been dealt with in similar fashion, argues hottenguer. the envoys counter by asking whether american vessels will meanwhile be restored to their owners. they will not, was the answer. will the directory stop further outrages on american commerce, ask the envoys? of course not, exclaims hottenguer. we do "not so much regard a little money as [you] said," declare the envoys, "although we should hazard ourselves by giving it but we see only evidences of the most extreme hostility to us." thereupon they go into a long and useless explanation of the american case. gerry's visit to his "old friend" talleyrand was fruitless; the foreign minister would not receive him.[ ] gerry persisted, nevertheless, and finally found the french diplomat at home. talleyrand demanded the loan, and held a new decree of the directory before gerry, but proposed to withhold it for a week so that the americans could think it over. gerry hastened to his colleagues with the news. marshall and pinckney told hauteval to inform talleyrand "that unless there is a hope that the directory itself might be prevailed upon by reason to alter its arrêté, we do not wish to suspend it for an instant."[ ] the next evening, when marshall and pinckney were away from their quarters, bellamy and hottenguer called on gerry, who again invited them to breakfast. this time bellamy disclosed the fact that talleyrand was now intimately connected with bonaparte and the army in italy. let gerry ponder over that! "the fate of venice was one which might befall the united states," exclaimed talleyrand's mouthpiece; and let gerry not permit marshall and pinckney to deceive themselves by expecting help from england--france could and would attend to england, invade her, break her, force her to peace. where then would america be? thus for an hour bellamy and hottenguer worked on gerry.[ ] far as talleyrand's agents had gone in trying to force the envoys to offer a bribe of a quarter of a million dollars, to the foreign minister and directory, they now went still further. the door of the chamber of horrors was now opened wide to the stubborn americans. personal violence was intimated; war was threatened. but marshall and pinckney refused to be frightened. the directory, talleyrand, and their emissaries, however, had not employed their strongest resource. "perhaps you believe," said bellamy to the envoys, "that in returning and exposing to your countrymen the unreasonableness of the demands of this government, you will unite them in their resistance to those demands. you are mistaken; you ought to know that the diplomatic skill of france and the means she possesses in your country are sufficient to enable her, with the french party in america,[ ] to throw the blame which will attend the rupture of the negotiations on the federalists, as you term yourselves, but on the british party as france terms you. and you may assure yourselves that this will be done."[ ] thus it was out at last. this was the hidden card that talleyrand had been keeping back. and it was a trump. talleyrand managed to have it played again by a fairer hand before the game was over. yes, surely; here was something to give the obstinate marshall pause. for the envoys knew it to be true. there was a french party in america, and there could be little doubt that it was constantly growing stronger.[ ] genêt's reception had made that plain. the outbursts throughout america of enthusiasm for france had shown it. the popular passion exhibited, when the jay treaty was made public, had proved it. adams's narrow escape from defeat had demonstrated the strength of french sympathy in america. a far more dangerous circumstance, as well known to talleyrand as it was to the envoys, made the matter still more serious--the democratic societies, which, as we have seen, had been organized in great numbers throughout the united states had pushed the french propaganda with zeal, system, and ability; and were, to america, what the jacobin clubs had been to france before their bloody excesses. they had already incited armed resistance to the government of the united states.[ ] thorough information of the state of things in the young country across the ocean had emboldened barras, upon taking leave of monroe, to make a direct appeal to the american people in disregard of their own government, and, indeed, almost openly against it. the threat, by talleyrand's agents, of the force which france could exert in america, was thoroughly understood by the envoys. for, as we have seen, there was a french party in america--"a party," as washington declared, "determined to advocate french measures under _all_ circumstances."[ ] it was common knowledge among all the representatives of the american government in europe that the french directory depended upon the republican party in this country. "they reckon ... upon many friends and partisans among us," wrote the american minister in london to the american minister at the hague.[ ] the directory even had its particular agents in the united states to inflame the american people against their own government if it did not yield to french demands. weeks before the president, in , had called congress in special session on french affairs, "the active and incessant manoeuvres of french agents in" america made william smith think that any favorable action of france "will drive the great mass of knaves & fools back into her [france's] arms," notwithstanding her piracies upon our ships.[ ] on november the envoys again decided to "hold no more indirect intercourse with" talleyrand or the directory. marshall and pinckney told hottenguer that they thought it "degrading our country to carry on further such an indirect intercourse"; and that they "would receive no propositions" except from persons having "acknowledged authority." after much parrying, hottenguer again unparked the batteries of the french party in america. he told marshall and pinckney that "intelligence had been received from the united states, that if colonel burr and mr. madison had constituted the mission, the difference between the two nations would have been accommodated before this time." talleyrand was even preparing to send a memorial to america, threatened hottenguer, complaining that the envoys were "unfriendly to an accommodation with france." the insulted envoys hotly answered that talleyrand's "correspondents in america took a good deal on themselves when they undertook to say how the directory would have received colonel burr and mr. madison"; and they defied talleyrand to send a memorial to the united states.[ ] disgusted with these indirect and furtive methods, marshall insisted on writing talleyrand on the subject that the envoys had been sent to france to settle. "i had been for some time extremely solicitous" that such a letter should be sent, says marshall. "it appears to me that for three envoys extraordinary to be kept in paris thirty days without being received can only be designed to degrade & humiliate their country & to postpone a consideration of its just & reasonable complaints till future events in which it ought not to be implicated shall have determined france in her conduct towards it. mr. gerry had been of a contrary opinion & we had yielded to him but this evening he consented that the letter should be prepared."[ ] nevertheless gerry again objected.[ ] at last the paris newspapers took a hand. "it was now in the power of the administration [directory]," says marshall, "to circulate by means of an enslaved press precisely those opinions which are agreeable to itself & no printer dares to publish an examination of them." "with this tremendous engine at its will, it [the directory] almost absolutely controls public opinion on every subject which does not immediately affect the interior of the nation. with respect to its designs against america it experiences not so much difficulty as ... would have been experienced had not our own countrymen labored to persuade them that our government was under a british influence."[ ] on november , marshall writes charles lee: "when i clos'd my last letter i did not expect to address you again from this place. i calculated on being by this time on my return to the united states.... my own opinion is that france wishes to retain america in her present situation until her negotiation with britain, which it is believed is about to recommence, shall have been terminated, and a present absolute rupture with america might encourage england to continue the war and peace with england ... will put us more in her [france's] power.... our situation is more intricate and difficult than you can believe.... the demand for money has been again repeated. the last address to us ... concluded ... that the french party in america would throw all the blame of a rupture on the federalists.... we were warned of the fate of venice. all these conversations are preparing for a public letter but the delay and the necessity of writing only in cypher prevents our sending it by this occasion.... i wish you could ... address the minister concerning our reception. we despair of doing anything.... mr. putnam an american citizen has been arrested and sent to jail under the pretext of his cheating frenchmen.... this ... is a mere pretext. it is considered as ominous toward americans generally. he like most of them is a creditor of the [french] government."[ ] finally the envoys sent talleyrand the formal request, written by marshall,[ ] that the directory receive them. talleyrand ignored it. ten more days went by. when might they expect an answer? inquired the envoys. talleyrand parried and delayed. "we are not yet received," wrote the envoys to secretary of state pickering, "and the condemnation of our vessels ... is unremittingly continued. frequent and urgent attempts have been made to inveigle us again into negotiations with persons not officially authorized, of which the obtaining of money is the basis; but we have persisted in declining to have any further communication relative to diplomatic business with persons of that description."[ ] anxious as marshall was about the business of his mission, which now rapidly was becoming an intellectual duel between talleyrand and himself, he was far more concerned as to the health of his wife, from whom he had heard nothing since leaving america. marshall writes her a letter full of apprehension, but lightens it with a vague account of the amusements, distractions, and dissipations of the french capital. "i have not, since my departure from the united states," marshall tells his wife, "received a single letter from you or from any one of my friends in america. judge what anxiety i must feel concerning you. i do not permit myself for a moment to suspect that you are in any degree to blame for this. i am sure you have written often to me but unhappily for me your letters have not found me. i fear they will not. they have been thrown over board or intercepted. such is the fate of the greater number of the letters addressed by americans to their friends in france, such i fear will be the fate of all that may be address'd to me. "in my last letter i informed you that i counted on being at home in march. i then expected to have been able to leave this country by christmas at furthest & such is my impatience to see you & my dear children that i had determined to risk a winter passage." he asks his wife to request mr. wickham to see that one of marshall's law cases "may ly till my return. i think nothing will prevent my being at the chancery term in may. "oh god," cries marshall, "how much time & how much happiness have i thrown away! paris presents one incessant round of amusement & dissipation but very little i believe even for its inhabitants of that society which interests the heart. every day you may see something new magnificent & beautiful, every night you may see a spectacle which astonishes & enchants the imagination. the most lively fancy aided by the strongest description cannot equal the reality of the opera. all that you can conceive & a great deal more than you can conceive in the line of amusement is to be found in this gay metropolis but i suspect it would not be easy to find a friend. "i would not live in paris," marshall tells his "dearest polly" "[if i could] ... be among the wealthiest of its citizens. i have changed my lodging much for the better. i liv'd till within a few days in a house where i kept my own apartments perfectly in the style of a miserable old bachelor without any mixture of female society. i now have rooms in the house of a very accomplished a very sensible & i believe a very amiable lady whose temper, very contrary to the general character of her country women, is domestic & who generally sits with us two or three hours in the afternoon. "this renders my situation less unpleasant than it has been but nothing can make it eligible. let me see you once more & i ... can venture to assert that no consideration would induce me ever again to consent to place the atlantic between us. adieu my dearest polly. preserve your health & be happy as possible till the return of him who is ever yours."[ ] the american minister in london was following anxiously the fortunes of our envoys in paris, and gave them frequent information and sound advice. upon learning of their experiences, king writes that "i will not allow myself yet to despair of your success, though my apprehensions are greater than my hopes." king enclosed his dispatch number to the american secretary of state, which tells of the portuguese treaty and the decline of spain's power in paris.[ ] in reply, pinckney writes king, on december , that the directory "are undoubtedly hostile to our government, and are determined, if possible, to effectuate a change in our administration, and to oblige our present president [adams] to resign," and further adds that the french authorities contemplate expelling from france "every american who could not prove" that he was for france and against america. "attempts," he continues, "are made to divide the envoys and with that view some civilities are shown to mr. g.[erry] and none to the two others [marshall and pinckney].... the american jacobins here pay him [gerry] great court."[ ] the little new englander already was yielding to the seductions of talleyrand, and was also responsive to the flattery of a group of unpatriotic americans in paris who were buttering their own bread by playing into the hands of the directory and the french foreign office. marshall now beheld a stage of what he believed was the natural development of unregulated democracy. dramatic events convinced him that he was witnessing the growth of license into absolutism. early in december bonaparte arrived in paris. swiftly the conqueror had come from rastadt, traveling through france _incognito_, after one of his lightning-flash speeches to his soldiers reminding them of "the kings whom you have vanquished, the people upon whom you have conferred liberty." the young general's name was on every tongue. paris was on fire to see and worship the hero. but bonaparte kept aloof from the populace. he made himself the child of mystery. the future emperor of the french, clad in the garments of a plain citizen, slipped unnoticed through the crowds. he would meet nobody but scholars and savants of world renown. these he courted; but he took care that this fact was known to the people. in this course he continued until the stage was set and the cue for his entrance given. finally the people's yearning to behold and pay homage to their soldier-statesman becomes a passion not to be denied. the envious but servile directory yield, and on december , , a splendid festival in bonaparte's honor is held at the luxembourg. the scene flames with color: captured battle-flags as decorations; the members of the directory appareled as roman consuls; foreign ministers in their diplomatic costumes; officers in their uniforms; women brilliantly attired in the height of fashion.[ ] at last the victorious general appears on the arm of talleyrand, the latter gorgeously clad in the dress of his high office; but bonaparte, short, slender, and delicate, wearing the plainest clothes of the simplest citizen. upon this superb play-acting john marshall looked with placid wonder. here, then, thought this virginian, who had himself fought for liberty on many a battlefield, were the first fruits of french revolutionary republicanism. marshall beheld no devotion here to equal laws which should shield all men, but only adoration of the sword-wielder who was strong enough to rule all men. in the fragile, eagle-faced little warrior,[ ] marshall already saw the man on horseback advancing out of the future; and in the thunders of applause he already heard the sound of marching armies, the roar of shotted guns, the huzzas of charging squadrons. all this was something that jefferson had not seen. jefferson's sojourn in france had been at the time when the french revolution was just sprouting; and he foresaw only that beautiful idealism into which the glorious dreamers of the time fondly imagined the revolution would flower. but marshall was in paris after the guillotine had done its work; when corruption sat in the highest places of government; and when military glory in the name of liberty had become the deity of the people. so where jefferson expected that the roses of peace would bloom, marshall saw clusters of bayonets, as the fruitage of the french revolution. footnotes: [ ] marshall's journal, oct. , - . [ ] paris made an impression on the envoys as different as their temperaments. vans murray records the effect on gerry, who had written to his friends in boston of "how handsomely they [the envoys] were received in paris and how hopeful he is of settlement!!!" "good god--he has mistaken the lamps of paris for an illumination on his arrival," writes our alarmed minister at the hague, "and the salutations of fisherwomen for a procession of chaste matrons hailing the great pacificator!... his foible is to mistake things of common worldly politeness for deference to his rank of which he rarely loses the idea.... gerry is no more fit to enter the labyrinth of paris as a town--alone--than an innocent is, much less formed to play a game with the political genius of that city ... without some very steady friend at his elbow.... of all men in america he is ... the least qualify'd to play a part in paris, either among the men or the women--he is too virtuous for the last--too little acquainted with the world and himself for the first." (vans murray to j. q. adams, april , ; _letters_: ford, .) [ ] marshall's journal, . [ ] _ib._, oct. , . [ ] probably the same hottenguer who had helped marshall's brother negotiate the fairfax loan in amsterdam. (_supra_, chap. iv.) [ ] marshall's journal, oct. , . [ ] _am. st. prs., for. rel._, ii, ; marshall's journal, - . [ ] marshall's journal, - . [ ] _am. st. prs., for. rel._, ii, . [ ] marshall's journal, oct. , - . [ ] marshall's journal, oct. , - . [ ] _supra_, . [ ] directing the capture of enemy goods on american ships, thus nullifying the declaration in the franco-american treaty that "free bottoms make free goods." [ ] _am. st. prs., for. rel._, ii, . [ ] marshall's journal, oct. , . _am. st. prs., for. rel._, ii, . [ ] marshall's journal, oct. , - . [ ] _am. st. prs., for. rel._, ii, - . [ ] _am. st. prs., for. rel._, ii, - . [ ] by "national" lands, marshall refers to the confiscated estates. [ ] marshall to washington, paris, oct. (postscript, th), : _amer. hist. rev._, jan., , ii, - ; also, washington mss., lib. cong.; or sparks mss., mass. hist. soc. [ ] marshall's journal, oct. , . [ ] _am. st. prs., for. rel._, ii, - . [ ] marshall's journal, oct. , - . this statement of the american case by marshall is given in the dispatches, which marshall prepared as coming from the envoys generally. (see _am. st. prs., for. rel._, ii, - .) [ ] marshall's journal, oct. , - . [ ] _am. st. prs., for. rel._, ii, ; marshall's journal, oct. , - . [ ] marshall's journal, oct. , . [ ] marshall's journal, oct. , - . [ ] _am. st. prs., for. rel._, ii, . [ ] "infinite pains have been taken there [in france] to spread universally the idea that there are, in america, only two parties, the one entirely devoted to france and the other to england." (j. q. adams to his father, the hague, july , ; _writings, j. q. a._: ford, ii, .) [ ] marshall's journal, oct. , - ; _am st. prs., for. rel._, . [ ] "the french were extremely desirous of seeing mr. jefferson president; ... they exerted themselves to the utmost in favor of his election [in ]; ... they made a great point of his success." (harper to his constituents, jan. , ; _bayard papers_: donnan, ; and see _supra_, chaps. i, ii, iii, and iv, of this volume.) [ ] see _supra_, chap. iii, _et seq._ [ ] washington to king, june , ; king, ii, . [ ] king to murray, march , ; _ib._, . [ ] smith to king, philadelphia, april , ; king, ii, . [ ] _am. st. prs., for. rel._, ii, - . [ ] marshall's journal, nov. , . [ ] _ib._, . [ ] marshall's journal, nov. , . [ ] marshall to lee, nov. , ; ms., lib. cong. lee was attorney-general. marshall's letter was in cipher. [ ] marshall to lee, nov. , , , , and ; ms., lib. cong. [ ] _am. st. prs., for. rel._, ii, . [ ] marshall to his wife, paris, nov. , ; ms. [ ] king to pinckney, marshall, and gerry, nov. , ; enclosing dispatch no. to pinckney; king, ii, - . see _ib._, ; and dec. , ; _ib._, . [ ] pinckney to king, paris, dec. , ; king, ii, - . [ ] talleyrand, who gave the fête, wrote: "i spared no trouble to make it brilliant and attractive; although in this i experienced some difficulty on account of the vulgarity of the directors' wives who, of course, enjoyed precedence over all other ladies." (_memoirs of talleyrand_: broglie's ed., i, ; also see sloane: _life of napoleon_, ii, ; and lanfrey: _life of napoleon_, i, - .) [ ] "at first sight he [bonaparte] seemed ... to have a charming face, so much do the halo of victory, fine eyes, a pale and almost consumptive look, become a young hero." (_memoirs of talleyrand_: broglie's ed., i, .) chapter viii the american memorial separated far from europe, we mean not to mingle in her quarrels. (marshall.) a fraudulent neutrality is no neutrality at all. (marshall.) we have a very considerable party in america who are strongly in our interest. (madame de villette.) four days after the festival of triumph to bonaparte, talleyrand's agents resumed their work. the sordid scenes were repeated, but their monotony was broken. now the lady of the plot appeared upon the scene. in the long, vexed, and fruitless days of their stay in paris, the american envoys, it seems, were not without the solace and diversion of the society of the french capital. among the attractive feminine acquaintances they made, one was undoubtedly an agent of the french foreign office. madame de villette was one of the most engaging women in the french capital.[ ] cultivated, brilliant, and altogether charming, she made herself particularly agreeable to the american envoys. she and marshall became especially good friends; but madame de villette ventured no diplomatic suggestions to him, notwithstanding his easy good nature. she was far too good a judge of character to commit that indiscretion. so was talleyrand, who by this time had begun to appreciate marshall's qualities. but pinckney, hearty, handsome man of the world, but without marshall's penetration and adroitness, was another matter. gerry the intriguers could already count upon; and only one other member of the commission was necessary to their ends. perhaps pinckney might be won over by this captivating frenchwoman. on some occasion madame de villette approached him:-- "why will you not lend us money?" said she to pinckney. "if you were to make us a loan, all matters will be adjusted. when you were contending for your revolution we lent you money." pinckney pointed out the differences--that america had _requested_ a loan of france, and france now _demanded_ a loan of america. "oh, no," said she. "we do not make a demand; we think it more delicate that the offer should come from you; but m. talleyrand has mentioned to me (who am surely not in his confidence) the necessity of your making us a loan, and i know that he has mentioned it to two or three others; and that you have been informed of it; and i will assure you that, if you remain here six months longer, you will not advance a single step further in your negotiations without a loan." if that is so, bluntly answered pinckney, the envoys might as well leave at once. "why," exclaimed talleyrand's fair agent, "that might possibly lead to a rupture, which you had better avoid; for we have a very considerable party in america who are strongly in our interest."[ ] the fox-like talleyrand had scented another hole by which he might get at his elusive quarry. "every man has his price" was his doctrine; and his experience hitherto had proved it sound. he found that the brilliant paris adventurer, beaumarchais, had a lawsuit against the state of virginia. beaumarchais had won this suit in the lower court and it was now pending on appeal. john marshall was his attorney.[ ] here, then, thought talleyrand, was the way to reach this unknown quantity in his problem. on december , marshall, happening into gerry's apartment, found bellamy there. beaumarchais had given a dinner to marshall and his fellow envoys, from which bellamy had been kept by a toothache. the envoys had returned beaumarchais's courtesy; and he had retired from this dinner "much indisposed."[ ] since then marshall had not seen his client. bellamy casually remarked that he had not known, until within a short time, that marshall was the attorney for beaumarchais, who, he said, had very high regard for his virginia attorney. marshall, his lawyer's instincts at once aroused, told bellamy that beaumarchais's case was of very great magnitude and that he was deeply interested in it. whereupon, in a low tone, spoken aside for his ear only, bellamy told marshall that, in case the latter won the suit, beaumarchais would "sacrifice £ , sterling of it as the private gratification" demanded by the directory and talleyrand, "so that the gratification might be made without any actual loss to the american government." marshall rejected this offer and informed pinckney of it.[ ] marshall's character is revealed by the entry he promptly made in his journal. "having been originally the counsel of mr. de beaumarchais, i had determined & so i informed genl. pinckney, that i would not by my voice establish any argument in his favor, but that i would positively oppose any admission of the claim of any french citizen if not accompanied with the admission of claims of the american citizens to property captured and condemned for want of a rôle d'équipage."[ ] bellamy then urged upon gerry his plan of the marshall-beaumarchais arrangement. talleyrand had been entertaining gerry privately, and the flattered new englander again wished to call on the french minister, "to return the civility" by inviting talleyrand to dinner.[ ] to talleyrand, then, went gerry in company with bellamy and asked the foreign minister to dine with him. then gerry tediously reviewed the situation, concluding in a manner that must have amused the bored talleyrand: he would rather see the envoys depart for some city in another nation, said gerry, until the directory would receive them, than to stay in paris under the circumstances. gerry was sure that the french diplomat was alarmed by this stern threat. "m. talleyrand appeared to be uneasy at this declaration," he told his colleagues. still, talleyrand avoided "saying a word on it"; but he did say that bellamy's representations "might always be relied on." talleyrand declared that he would go further; he would himself write out his propositions. this he proceeded to do, held the writing before gerry's eyes and then burned it; after this performance talleyrand said he would dine with gerry "the decade [ten days] after the present."[ ] meanwhile, however, gerry dined with the foreign minister. it was not a merry function. aside from his guest of honor, the french minister also had at his board hottenguer, bellamy, and hauteval. gerry could not speak french and hauteval acted as translator. it must have been a pallid feast; the brilliant, witty, accomplished talleyrand, man of the world, _bon vivant_, and lover of gayety; the solemn, dull, and rigid gerry; the three trained french agents, one of them, as interpreter, the only means of general communication.[ ] on rising from the table, hottenguer at once brought up the question of the bribe. would the envoys now give it? had they the money ready? gerry answered no![ ] talleyrand, by now the mouthpiece of the rising bonaparte, had proposed terms of peace to great britain; "the price was a bribe of a million sterling to be divided among directors, ministers, and others. talleyrand's department was to share one hundred thousand pounds sterling." the british government declined.[ ] king in london hastens to inform his american diplomatic associates in paris of this offer, and cautions the envoys to act in concert. to pinckney, king writes in cipher his anxiety about gerry, whose integrity king had hoped would "overcome a miserable vanity and a few little defects of character ... which i now fear have been discovered by those who will be assiduous to turn them to mischief." from the same source pinckney is warned: "you must not appear to suspect what you may really know; ... you must ... save him [gerry] and, in doing so, prevent the division that would grow out of a schism in your commission." gerry will be all right, thinks king, "unless pride shall be put in opposition to duty, or jealousy shall mislead a mind neither ingenuous nor well organized, but habitually suspicious, and, when assailed by personal vanity, inflexible."[ ] pinckney informs king of the situation in paris on december , declaring "that we ought to request our passports and no longer exhibit to the world the unprecedented spectacle of three envoys extraordinary from a free and independent nation, in vain soliciting to be heard."[ ] marshall now insists that the american case be formally stated to the french government. gerry at last agrees.[ ] marshall, of course, prepares this vastly important state paper. for two weeks he works over the first half of this historic document. "at my request genl. pinckney & mr. gerry met in my room & i read to them the first part of a letter to the minister of exterior relations which consisted of a justification of the american government,"[ ] he relates in his journal. over the last half of the american case, marshall spends seven days. "the second part of the letter to the minister of exterior relations, comprehending the claims of the united states upon france, being also prepared, i read it to genl pinckney & mr. gerry." both sections of marshall's letter to talleyrand were submitted to his colleagues for suggestions.[ ] it was hard work to get gerry to examine and sign the memorial. "i had so repeatedly pressed mr. gerry," notes marshall, "on the subject of our letter prepared for the minister of exterior relations & manifested such solicitude for its being so completed as to enable us to send it, that i had obviously offended. today i have urged that subject and for the last time."[ ] two days later marshall chronicles that "mr. gerry finished the examination of our letter to the minister of exterior relations."[ ] a week later the letter, translated and signed, is delivered to talleyrand.[ ] upon this memorial were based future and successful american negotiations,[ ] and the statement by marshall remains to this day one of the ablest state papers ever produced by american diplomacy. marshall reminds talleyrand of the frequent and open expressions of america's regard for france, given "with all the ardor and sincerity of youth." these, he says, were considered in america "as evidencing a mutual friendship, to be as durable as the republics themselves." unhappily the scene changed, says marshall, and "america looks around in vain for the ally or the friend." he pictures the contrast in the language and conduct of the french government with what had passed before, and says that the french charge of american partiality toward great britain is unfounded. marshall then reviews the international situation and makes it so plain that america could not take part in the european wars, that even talleyrand was never able to answer the argument. "when that war [began] which has been waged with such unparalleled fury," he writes, "which in its vast vicissitudes of fortune has alternately threatened the very existence of the conflicting parties, but which, in its progress, has surrounded france with splendor, and added still more to her glory than to her territory," america found herself at peace with all the belligerent powers; she was connected with some of them by treaties of amity and commerce, and with france by a treaty of alliance. but these treaties, marshall points out, did not require america to take part in this war. "being bound by no duty to enter into the war, the government of the united states conceived itself bound by duties, the most sacred, to abstain from it." upon the ground that man, even in different degrees of social development, is still the natural friend of man, "the state of peace, though unstipulated by treaty," was the only course america could take. "the laws of nature" enjoined this, marshall announces; and in some cases "solemn and existing engagements ... require a religious observance" of it.[ ] such was the moral ground upon which marshall built his argument, and he strengthened it by practical considerations. "the great nations of europe," he writes, "either impelled by ambition or by existing or supposed political interests, peculiar to themselves, have consumed more than a third of the present century in wars." the causes that produced this state of things "cannot be supposed to have been entirely extinguished, and humanity can scarcely indulge the hope that the temper or condition of man is so altered as to exempt the next century from the ills of the past. strong fortifications, powerful navies, immense armies, the accumulated wealth of ages, and a full population, enable the nations of europe to support those wars."[ ] problems of this character, marshall explains, must be solved by european countries, not by the united states. for, "encircled by no dangerous powers, they [the americans] neither fear, nor are jealous of their neighbors," says marshall, "and are not, on that account, obliged to arm for their own safety." he declares that america, separated from europe "by a vast and friendly ocean," has "no motive for a voluntary war," but "the most powerful reasons to avoid it."[ ] america's great and undefended commerce, made necessary by her then economic conditions, would be, marshall contends, the "immediate and certain victim" of engaging in european wars; and he then demonstrates the disastrous results to america of departing from her policy of neutrality. the immense and varied resources of the united states can only be used for self-defense, reasons the virginia lawyer. "neither the genius of the nation, nor the state of its own finances admit of calling its citizens from the plough but to defend their own liberty and their own firesides." he then points out that, in addition to the moral wrong and material disaster of america's taking part in france's wars, such a course means the launching into the almost boundless ocean of european politics. it implies "contracting habits of national conduct and forming close political connections which must have compromitted the future peace of the nation, and have involved it in all the future quarrels of europe." marshall then describes the "long train of armies, debts, and taxes, checking the growth, diminishing happiness, and perhaps endangering the liberty of the united states, which must have followed." and all this for what? not to fulfill america's treaties; "not to promote her own views, her own objects, her own happiness, her own safety; but to move as a satellite around some other greater planet, whose laws she must of necessity obey."[ ] "it was believed," he declares, "that france would derive more benefit from the neutrality of america than from her becoming a party in the war." neutrality determined upon, he insists that "increased motives of honor and of duty commanded its faithful observance.... a fraudulent neutrality is no neutrality at all.... a ... nation which would be admitted to its privileges, should also perform the duties it enjoins." if the american government, occupying a neutral position, had granted "favors unstipulated by treaty, to one of the belligerent powers which it refused to another, it could no longer have claimed the immunities of a situation of which the obligations were forgotten; it would have become a party to the war as certainly as if war had been openly and formally declared, and it would have added to the madness of wantonly engaging in such a hazardous conflict, the dishonor of insincere and fraudulent conduct; it would have attained, circuitously, an object which it could not plainly avow or directly pursue, and would have tricked the people of the united states into a war which it would not venture openly to declare." then follows this keen thrust which talleyrand could not evade: "it was a matter of real delight to the government and people of america," suavely writes marshall, "to be informed that france did not wish to interrupt the peace they [the american people] enjoyed." marshall then makes a sudden and sharp attack memorable in the records of diplomatic dueling. he calls attention to the astounding conduct of the french minister on american soil immediately after the american government had proclaimed its neutrality to the world and had notified american citizens of the duties which that neutrality enjoined. in polite phrase he reminds talleyrand of genêt's assumption of "the functions of the government to which he was deputed, ... although he was not even acknowledged as a minister or had reached the authority which should inspect his credentials." but, notwithstanding this, says marshall, "the american government resolved to see in him [genêt] only the representative of a republic to which it was sincerely attached" and "gave him the same warm and cordial reception which he had experienced from its citizens without a single exception from charleston to philadelphia." two paragraphs follow of fulsome praise of france, which would seem to have been written by gerry, who insisted on revising the memorial.[ ] but in swift contrast marshall again throws on the screen the indefensible performances of the french minister in america and the tolerance with which the american government treated them. "in what manner would france have treated any foreign minister, who should have dared to so conduct himself toward this republic?... in what manner would the american government have treated him [genêt] had he been the representative of any other nation than france?" no informed man can doubt the answer to these questions, says marshall. "from the minister of france alone could this extraordinary conduct be borne with temper." but "to have continued to bear it without perceiving its extreme impropriety would have been to have merited the contempt" of the world and of france herself. "the government of the united states did feel it," declares marshall, but did not attribute genêt's misconduct to the french nation. on the contrary, the american government "distinguished strongly between the [french] government and its minister," and complained "in the language of a friend afflicted but not irritated." genêt's recall "was received with universal joy" in america, "as a confirmation that his ... conduct was attributable only to himself"; and "not even the publication of his private instructions could persuade the american government to ascribe any part of it to this [french] republic."[ ] marshall further points out "the exertions of the united states to pay up the arrearages" of their debt to france; america's "disinterested and liberal advances to the sufferers of st. domingo ... whose recommendation was that they were frenchmen and unfortunate"; and other acts of good-will of the american government toward the french republic. he then makes a characteristically clear and convincing argument upon the points at issue between france and america. france complained that one article of the jay treaty provided that in case of war the property of an enemy might be taken by either out of the ships of the other; whereas, by the treaty of between france and america, neither party should take out of the vessels of the other the goods of its enemy. france contended that this was a discrimination against her in favor of great britain. marshall shows that this provision in the jay treaty was merely the statement of the existing law of nations, and that therefore the jay treaty gave no new rights to great britain. marshall reminds talleyrand that any two nations by treaty have the power to alter, as to their mutual intercourse, the usages prescribed by international law; that, accordingly, france and america had so changed, as between themselves, the law of nations respecting enemy's goods in neutral bottoms. he cites the ordinance of france herself in and her long continued practice under it; and he answers so overwhelmingly the suggestion that the law of nations had not been changed by the rules laid down by the "armed neutrality" of the northern powers of europe in the war existing at the time of that confederation, that the resourceful talleyrand made no pretense of answering it. the stipulation in the franco-american treaty of "protecting the goods of the enemy of either party in the vessels of the other, and in turn surrendering its own goods found in the vessels of the enemy," extended, marshall insists, to no other nation except to france and america; and contends that this could be changed only by further specific agreements between those two nations. marshall wishes "that the principle that neutral bottoms shall make neutral goods" were universally established, and declares that that principle "is perhaps felt by no nation on earth more strongly than by the united states." on this point he is emphatic, and reiterates that "no nation is more deeply interested in its establishment" than america. "it is an object they [the united states] have kept in view, and which, if not forced by violence to abandon it, they will pursue in such manner as their own judgment may dictate as being best calculated to attain it." "but," he says, "the wish to establish a principle is essentially different from a determination that it is already established.... however solicitous america might be to pursue all proper means, tending to obtain for this principle the assent of any or all of the maritime powers of europe, she never conceived the idea of attaining that consent by force."[ ] "the united states will only arm to defend their own rights," declares marshall; "neither their policy nor their interests permit them to arm, in order to compel a surrender of the rights of others." he then gives the history of the jay treaty, and points out that jay's particular instructions not to preserve peace with great britain, "nor to receive compensations for injuries sustained, nor security against their future commission, at the expense of the smallest of its [america's] engagements to france,"[ ] were incorporated in the treaty itself, in the clause providing that "nothing in this treaty shall, however, be construed or operate contrary to former and existing public treaties with other sovereignties or states."[ ] so careful, in fact, was america to meet the views of france that "previous to its ratification" the treaty was submitted to the french minister to the united states, who did not even comment on the article relating to enemy's goods in neutral bottoms, but objected only to that enlarging the list of contraband;[ ] and the american government went to extreme lengths to meet the views of the french minister, who finally appeared to be satisfied. the articles of contraband enumerated in the jay treaty, to which the french government objected, says marshall, were contraband by the laws of nations and so admitted by france herself in her treaties with other countries.[ ] answering the charge that in the treaty the united states had agreed that more articles should be contraband than she had in compacts with other powers, marshall explains that "the united states, desirous of liberating commerce, have invariably seized every opportunity which presented itself to diminish or remove the shackles imposed on that of neutrals. in pursuance of this policy, they have on no occasion hesitated to reduce the list of contraband, as between themselves and any nation consenting to such reduction. their preëxisting treaties have been with nations as willing as themselves to change this old rule." but these treaties leave other governments, who do not accept the american policy, "to the law which would have governed had such particular stipulation never been made"--that is, to the law of nations. great britain declined to accept this american view of the freedom of the seas; and, therefore, america was forced to leave that nation where it had found her on the subject of contraband and freedom of ocean-going commerce. thus, contends marshall, the jay treaty "has not added to the catalog of contraband a single article ... ceded no privilege ... granted no right," nor changed, in the most minute circumstance, the preëxisting situation of the united states in relation either to france or to great britain. notwithstanding these truths, "the government of the united states has hastened to assure its former friend [france], that, if the stipulations between them are found oppressive in practice, it is ready to offer up those stipulations a willing sacrifice at the shrine of friendship."[ ] stating the general purposes of the united states, marshall strikes at the efforts of france to compel america to do what france wishes and in the manner that france wishes, instead of doing what american interests require and in the manner america thinks wisest. the american people, he asserts, "must judge exclusively for themselves how far they will or ought to go in their efforts to acquire new rights or establish new principles. when they surrender this privilege, they cease to be independent, and they will no longer deserve to be free. they will have surrendered into other hands the most sacred of deposits--the right of self-government; and instead of approbation, they will merit the contempt of the world."[ ] marshall states the economic and business reasons why the united states, of all countries, must depend upon commerce and the consequent necessity for the jay treaty. he tartly informs talleyrand that in doing so the american government was "transacting a business exclusively its own." marshall denies the insinuation that the negotiations of the jay treaty had been unusually secret, but sarcastically observes that "it is not usual for nations about to enter into negotiations to proclaim to others the various objects to which those negotiations may possibly be directed. such is not, nor has it ever been, the principle of france." to suppose that america owed such a duty to france, "is to imply a dependence to which no government ought willingly to submit."[ ] marshall then sets forth specifically the american complaints against the french government,[ ] and puts in parallel columns the words of the jay treaty to which the french objected, and the rules which the french directory pretended were justified by that treaty. so strong is marshall's summing up of the case in these portions of the american memorial that it is hard for the present-day reader to see how even the french directory of that lawless time could have dared to attempt to withstand it, much less to refuse further negotiations. drawing to a conclusion, marshall permits a lofty sarcasm to lighten his weighty argument. "america has accustomed herself," he observes, "to perceive in france only the ally and the friend. consulting the feelings of her own bosom, she [america] has believed that between republics an elevated and refined friendship could exist, and that free nations were capable of maintaining for each other a real and permanent affection. if this pleasing theory, erected with so much care, and viewed with so much delight, has been impaired by experience, yet the hope continues to be cherished that this circumstance does not necessarily involve the opposite extreme."[ ] then, for a moment, marshall indulges his eloquence: "so intertwined with every ligament of her heart have been the cords of affection which bound her to france, that only repeated and continued acts of hostility can tear them asunder."[ ] finally he tells talleyrand that the american envoys, "searching only for the means of effecting the objects of their mission, have permitted no personal considerations to influence their conduct, but have waited, under circumstances beyond measure embarrassing and unpleasant, with that respect which the american government has so uniformly paid to that of france, for permission to lay before you, citizen minister, these important communications with which they have been charged." but, "if no such hope" remains, "they [the envoys] have only to pray that their return to their own country may be facilitated."[ ] but marshall's extraordinary power of statement and logic availed nothing with talleyrand and the directory. "i consider marshall, whom i have heard speak on a great subject,[ ] as one of the most powerful reasoners i ever met with either in public or in print," writes william vans murray from the hague, commenting on the task of the envoys. "reasoning in such cases will have a fine effect in america, but to depend upon it in europe is really to place quixote with ginés de passamonte and among the men of the world whom he reasoned with, and so sublimely, on their way to the galleys. they answer him, with you know stones and blows, though the knight is an _armed_ as well as an eloquent knight."[ ] the events which had made marshall and pinckney more resolute in demanding respectful treatment had made gerry more pliant to french influence. "mr. gerry is to see mr. talleyrand the day after to-morrow. three appointments have been made by that gentleman," marshall notes in his journal, "each of which mr. gerry has attended and each of which mr. talleyrand has failed to attend; nor has any apology for these disappointments been thought necessary."[ ] once more gerry waits on talleyrand, who remains invisible.[ ] and now again beaumarchais appears. the directory issues more and harsher decrees against american commerce. marshall's patience becomes finite. "i prepared to-day a letter to the minister remonstrating against the decree, ... subjecting to confiscation all neutral vessels having on board any article coming out of england or its possessions." the letter closes by "requesting our passports."[ ] [illustration: elbridge gerry] marshall's memorial of the american case remained unread. one of talleyrand's many secretaries asked gerry "what it contained? (for they could not take the trouble to read it) and he added that such long letters were not to the taste of the french government who liked a short address coming straight to the point."[ ] gerry, who at last saw talleyrand, "informed me [marshall] that communications & propositions had been made to him by that gentleman, which he [gerry] was not at liberty to impart to genl pinckney or myself." upon the outcome of his secret conferences with talleyrand, said gerry, "probably depended peace or war."[ ] gerry's "communication necessarily gives birth to some very serious reflections," marshall confides to his journal. he recalls the attempts to frighten the envoys "from our first arrival"--the threats of "a variety of ills ... among others with being ordered immediately to quit france," none of them carried out; "the most haughty & hostile conduct ... towards us & our country and yet ... an unwillingness ... to profess the war which is in fact made upon us."[ ] a french agent, sent by the french consul-general in america, just arrived in paris, "has probably brought with him," marshall concludes, "accurate details of the state of parties in america.... i should think that if the french government continues its hostility and does not relax some little in its hauteur its party in the united states will no longer support it. i suspect that some intelligence of this complexion has been received ... whether she [france] will be content to leave us our independence if she can neither cajole or frighten us out of it or will even endeavor to tear it from us by open war there can be no doubt of her policy in one respect--she will still keep up and cherish, if it be possible, ... her party in the united states." whatever course france takes, marshall thinks will be "with a view to this her primary object." therefore, reasons marshall, talleyrand will maneuver to throw the blame on pinckney and himself if the mission fails, and to give gerry the credit if it succeeds. "i am led irresistibly by this train of thought to the opinion that the communication made to mr. gerry in secret is a proposition to furnish passports to general pinckney and myself and to retain him for the purpose of negotiating the differences between the two republics." this would give the advantage to the french party in any event. "i am firmly persuaded of his [talleyrand's] unwillingness to dismiss us while the war with england continues in its present uncertain state. he believed that genl pinckney and myself are both determined to remain no longer unless we can be accredited." gerry had told marshall that he felt the same way; "but," says marshall, "i am persuaded the minister [talleyrand] does not think so. he would on this account as well as on another which has been the base of all propositions for an accommodation [the loan and the bribe] be well pleased to retain only one minister and to chuse that one [gerry]."[ ] marshall and pinckney decided to let gerry go his own gait. "we shall both be happy if, by remaining without us, mr. gerry can negotiate a treaty which shall preserve the peace without sacrificing the independence of our country. we will most readily offer up all personal considerations as a sacrifice to appease the haughtiness of this republic."[ ] marshall gave gerry the letter on the decree and passport question "and pressed his immediate attention to it." but gerry was too excited by his secret conferences with talleyrand to heed it. time and again gerry, bursting with importance, was closeted with the foreign minister, hinting to his colleagues that he held peace or war in his hand. marshall bluntly told him that talleyrand's plan now was "only to prevent our taking decisive measures until the affairs of europe shall enable france to take them. i have pressed him [gerry] on the subject of the letter concerning the decree but he has not yet read it."[ ] talleyrand and gerry's "private intercourse still continues," writes marshall on february . "last night after our return from the theatre mr. gerry told me, just as we were separating to retire each to his own apartment, that he had had in the course of the day a very extraordinary conversation with" a clerk of talleyrand. it was, of course, secret. marshall did not want to hear it. gerry said he could tell his colleagues that it was on the subject of money. then, at last, marshall's restraint gave way momentarily and his anger, for an instant, blazed. money proposals were useless; talleyrand was playing with the americans, he declared. "mr. gerry was a little warm and the conversation was rather unpleasant. a solicitude to preserve harmony restrained me from saying all i thought."[ ] money, money, money! nothing else would do! gerry, by now, was for paying it. no answer yet comes to the american memorial delivered to talleyrand nearly three weeks before. marshall packs his belongings, in readiness to depart. an unnamed person[ ] calls on him and again presses for money; france is prevailing everywhere; the envoys had better yield; why resist the inevitable, with a thousand leagues of ocean between them and home? marshall answers blandly but crushingly. again talleyrand's clerk sees gerry. the three americans that night talk long and heatedly. marshall opposes any money arrangement; gerry urges it "very decidedly"; while pinckney agrees with marshall. gerry argues long about the horrors of war, the expense, the risk. marshall presents the justice of the american cause. gerry reproaches marshall with being too suspicious. marshall patiently explains, as to a child, the real situation. gerry again charges marshall and pinckney with undue suspicion. marshall retorts that gerry "could not answer the argument but by misstating it." the evening closes, sour and chill.[ ] the next night the envoys once more endlessly debate their course. marshall finally proposes that they shall demand a personal meeting with talleyrand on the real object of the mission. gerry stubbornly dissents and finally yields, but indulges in long and childish discussion as to what should be said to talleyrand, confusing the situation with every word.[ ] talleyrand fixes march for the interview. the following day marshall accidentally discovers gerry closeted with talleyrand's clerk, who came to ask the new englander to attend talleyrand "in a particular conversation." gerry goes, but reports that nothing important occurred. then it comes out that talleyrand had proposed to get rid of marshall and pinckney and keep gerry. gerry admits it. thus marshall's forecast made three weeks earlier[ ] is proved to have been correct. at last, for the first time in five months, the three envoys meet talleyrand face to face. pinckney opens and talleyrand answers. gerry suggests a method of making the loan, to which talleyrand gives qualified assent. the interview seems at an end. then marshall comes forward and states the american case. there is much parrying for an hour.[ ] the envoys again confer. gerry urges that their instructions permit them to meet talleyrand's demands. he goes to marshall's room to convince the granite-like virginian, who would not yield. "i told him," writes marshall, "that my judgment was not more perfectly convinced that the floor was wood or that i stood on my feet and not on my head than that our instructions would not permit us to make the loan required."[ ] let gerry or marshall or both together return to america and get new instructions if a loan must be made. two days later, another long and absurd discussion with gerry occurs. before the envoys go to see talleyrand the next day, gerry proposes to marshall that, with reference to president adams's speech, the envoys should declare, in any treaty made, "that the complaints of the two governments had been founded in mistake." marshall hotly retorts: "with my view of things, i should tell an absolute lye if i should say that our complaints were founded in mistake. he [gerry] replied hastily and with warmth that he wished to god, i would propose something which was accommodating: that i would propose nothing myself and objected to every thing which he proposed. i observed that it was not worth while to talk in that manner: that it was calculated to wound but not to do good: that i had proposed every thing which in my opinion was calculated to accommodate differences on just and reasonable grounds. he said that ... to talk about justice was saying nothing: that i should involve our country in a war and should bring it about in such a manner, as to divide the people among themselves. i felt a momentary irritation, which i afterwards regretted, and told mr. gerry that i was not accustomed to such language and did not permit myself to use it with respect to him or his opinions." nevertheless, marshall, with characteristic patience, once more begins to detail his reasons. gerry interrupts--marshall "might think of him [gerry] as i [he] pleased." marshall answers moderately. gerry softens and "the conversation thus ended."[ ] immediately after the bout between marshall and gerry the envoys saw talleyrand for a third time. marshall was dominant at this interview, his personality being, apparently, stronger even than his words. these were strong enough--they were, bluntly, that the envoys could not and would not accept talleyrand's proposals. a week later marshall's client, beaumarchais, called on his american attorney with the alarming news that "the effects of all americans in france were to be sequestered." pay the government money and avoid this fell event, was beaumarchais's advice; he would see talleyrand and call again. "mr. beaumarchais called on me late last evening," chronicles marshall. "he had just parted from the minister. he informed me that he had been told confidentially ... that the directory were determined to give passports to general pinckney and myself but to retain mr. gerry." but talleyrand would hold the order back for "a few days to give us time to make propositions conforming to the views of the government," which "if not made mr. talleyrand would be compelled to execute the order." "i told him," writes marshall, "that if the proposition ... was a loan it was perfectly unnecessary to keep it [the order] up [back] a single day: that the subject had been considered for five months" and that the envoys would not change; "that for myself, if it were impossible to effect the objects of our mission, i did not wish to stay another day in france and would as cheerfully depart the next day as at any other time."[ ] beaumarchais argued and appealed. of course, france's demand was not just--talleyrand did not say it was; but "a compliance would be useful to our country [america]." "france," said beaumarchais, "thought herself sufficiently powerful to give the law to the world and exacted from all around her money to enable her to finish successfully her war against england." finally, beaumarchais, finding marshall flint, "hinted" that the envoys themselves should propose which one of them should remain in france, gerry being the choice of talleyrand. marshall countered. if two were to return for instructions, the envoys would decide that for themselves. if france was to choose, marshall would have nothing to do with it. "general pinckney and myself and especially me," said marshall, "were considered as being sold to the english." beaumarchais admitted "that our positive refusal to comply with the demands of france was attributed principally to me who was considered as entirely english.... i felt some little resentment and answered that the french government thought no such thing; that neither the government nor any man in france thought me english: but they knew i was not french: they knew i would not sacrifice my duty and the interest of my country to any nation on earth, and therefore i was not a proper man to stay, and was branded with the epithet of being english: that the government knew very well i loved my own country exclusively, and it was impossible to suppose any man who loved america, fool enough to wish to engage her in a war with france if that war was avoidable." thus marshall asserted his purely american attitude. it was a daring thing to do, considering the temper of the times and the place where he then was. even in america, at that period, any one who was exclusively american and, therefore, neutral, as between the european belligerents, was denounced as being british at heart. only by favoring france could abuse be avoided. and to assert neutrality in the french capital was, of course, even more dangerous than to take this american stand in the united states. but beaumarchais persisted and proposed to take passage with his attorney to america; not on a public mission, of course (though he had hinted at wishing to "reconcile" the two governments), but merely "to testify," writes marshall, "to the moderation of my conduct and to the solicitude i had uniformly expressed to prevent a rupture with france." beaumarchais "hinted very plainly," continues marshall, "at what he had before observed that means would be employed to irritate the people of the united states against me and that those means would be successful. i told him that i was much obliged to him but that i relied entirely on my conduct itself for its justification and that i felt no sort of apprehension for consequences, as they regarded me personally; that in public life considerations of that sort never had and never would in any degree influence me. we parted with a request, on his part, that, whatever might arise, we would preserve the most perfect temper, and with my assuring him of my persuasion that our conduct would always manifest the firmness of men who were determined, and never the violence of passionate men." "i have been particular," concludes marshall, "in stating this conversation, because i have no doubt of its having been held at the instance of the minister [talleyrand] and that it will be faithfully reported to him. i mentioned to-day to mr. gerry that the government wished to detain him and send away general pinckney and myself. he said he would not stay; but i find i shall not succeed in my efforts to procure a serious demand of passports for mr. gerry and myself."[ ] during his efforts to keep gerry from dangerously compromising the american case, and while waiting for talleyrand to reply to his memorial, marshall again writes to washington a letter giving a survey of the war-riven and intricate european situation. he tells washington that, "before this reaches you it will be known universally in america[ ] that scarcely a hope remains of" honorable adjustment of differences between france and america; that the envoys have not been and will not be "recognized" without "acceding to the demands of france ... for money--to be used in the prosecution of the present war"; that according to "reports," when the directory makes certain that the envoys "will not add a loan to the mass of american property already in the hands of this [french] government, they will be ordered out of france and a nominal [formally declared] as well as actual war will be commenc'd against the united states."[ ] marshall goes on to say that his "own opinion has always been that this depends on the state of war with england"; the french are absorbed in their expected attack on great britain; "and it is perhaps justly believed that on this issue is stak'd the independence of europe and america." he informs washington of "the immense preparations for an invasion" of england; the "numerous and veteran army lining the coast"; the current statement that if " , men can be" landed "no force in england will be able to resist them"; the belief that "a formidable and organized party exists in britain, ready, so soon as a landing shall be effected, to rise and demand a reform"; the supposition that england then "will be in ... the situation of the batavian and cisalpine republics and that its wealth, its commerce, and its fleets will be at the disposition of this [french] government." but, he continues, "this expedition is not without its hazards. an army which, arriving safe, would sink england, may itself be ... sunk in the channel.... the effect of such a disaster on a nation already tir'd of the war and groaning under ... enormous taxation" and, intimates marshall, none too warm toward the "existing arrangements ... might be extremely serious to those who hold the reins of government" in france. many intelligent people therefore think, he says, that the "formidable military preparations" for the invasion of england "cover and favor secret negotiations for peace." this view marshall himself entertains. he then briefly informs washington of bonaparte's arrangement with austria and prussia which will "take from england, the hope of once more arming" those countries "in her favor," "influence the secret [french] negotiations with england," and greatly affect "swisserland." marshall then gives an extended account of the doings and purposes of the french in switzerland, and refers to revolutionary activities in sardinia, naples, and spain. but notwithstanding the obstacles in its way, he concludes that "the existing [french] government ... needs only money to enable it to effect all its objects. a numerous brave and well disciplined army seems to be devoted to it. the most military and the most powerful nation on earth [the french] is entirely at its disposal.[ ] spain, italy, and holland, with the hanseatic towns, obey its mandates." but, says he, it is hard to "procure funds to work this vast machine. credit being annihilated ... the enormous contributions made by foreign nations," together with the revenue from imposts, are not enough to meet the expenses; and, therefore, "france is overwhelmed with taxes. the proprietor complains that his estate yields him nothing. real property pays in taxes nearly a third of its produce and is greatly reduc'd in its price."[ ] while marshall was thus engaged in studying french conditions and writing his long and careful report to washington, talleyrand was in no hurry to reply to the american memorial. indeed, he did not answer until march , , more than six weeks after receiving it. the french statement reached marshall and pinckney by gerry's hands, two days after its date. "mr. gerry brought in, just before dinner, a letter from the minister of exterior relations," writes marshall, "purporting to be an answer to our long memorial criminating in strong terms our government and ourselves, and proposing that two of us should go home leaving for the negotiation the person most acceptable to france. the person is not named but no question is entertained that mr. gerry is alluded to. i read the letter and gave it again to mr. gerry."[ ] the next day the three envoys together read talleyrand's letter. gerry protests that he had told the french foreign minister that he would not accept talleyrand's proposal to stay, "that," sarcastically writes marshall, "is probably the very reason why it was made." talleyrand's clerk calls on gerry the next morning, suggesting light and innocent duties if he would remain. no, theatrically exclaims gerry, i "would sooner be thrown into the seine."[ ] but gerry remained. it is impossible, without reading talleyrand's answer in full, to get an idea of the weak shiftiness to which that remarkable man was driven in his reply to marshall. it was, as pinckney said, "weak in argument, but irritating and insulting in style."[ ] the great diplomat complains that the americans have "claimed the right to take cognizance of the validity of prizes carried into the ports of the united states by french cruisers"; that the american government permitted "any vessels to put into the ports of the united states after having captured the property of ships belonging to french citizens"; that "a french corvette had anchored at philadelphia and was seized by the americans"; and that the jay treaty was hostile to france. but his chief complaint was with regard to the american newspapers which, said talleyrand, "have since the treaty redoubled the invectives and calumnies against the [french] republic, and against her principles, her magistrates, and her envoys";[ ] and of the fact that the american government might have, but did not, repress "pamphlets openly paid for by the minister of great britain" which contained "insults and calumnies." so far from the american government stopping all this, snarls talleyrand, it encouraged "this scandal in its public acts" and, through its president, had denounced the french directory as endeavoring to propagate anarchy and division within the united states. talleyrand then openly insults marshall and pinckney by stating that it was to prevent the restoration of friendship that the american government had sent "to the french republic persons whose opinions and connections are too well known to hope from them dispositions sincerely conciliatory." appealing directly to the french party in the united states, he declares that he "does not hesitate to believe that the american nation, like the french nation, sees this state of affairs with regret, and does not consider its consequences without sorrow. he apprehends that the american people will not commit a mistake concerning the prejudices with which it has been desired to inspire them against an allied people, nor concerning the engagements which it seems to be wished to make them contract to the detriment of an alliance, which so powerfully contributed to place them in the rank of nations, and to support them in it; and that they will see in these new combinations the only dangers their prosperity and importance can incur."[ ] finally, with cynical effrontery, talleyrand actually proposes that gerry alone shall conduct the negotiations. "notwithstanding the kind of prejudice which has been entertained with respect to them [the envoys], the executive directory is disposed to treat with that one of the three, whose opinions, presumed to be more impartial, promise, in the course of explanations, more of that reciprocal confidence which is indispensable."[ ] who should answer talleyrand? marshall, of course. "it was agreed ... that i should ... prepare an answer ... in which i should state that no one of the ministers could consent to remain on a business committed to all three."[ ] in the discussion leading to this decision, "i," writes marshall, "was perfectly silent." again dutrimond, a clerk of talleyrand's, calls on gerry, but sees marshall instead, gerry being absent. dutrimond's advice to marshall is to leave france. the truth is, he declares, that his chief must order the envoys out of france "in three days at farthest." but spare them gerry; let him remain--all this in polite terms and with plausible argument. "i told him," relates marshall, "that personally nothing could be more desirable to me than to return immediately to the united states." then go on your own initiative, urges talleyrand's clerk. marshall grows evasive; for he wishes the directory to order his departure. a long talk ensues. dutrimond leaves and gerry returns. marshall relates what had passed. "to prevent war i will stay," exclaims gerry. "i made no observation on this," dryly observes marshall in his journal.[ ] beaumarchais again tries his luck with marshall, who replies that he will go home by "the direct passage to america" if he can get safe-conduct, "tho' i had private business of very considerable consequence in england."[ ] otherwise, declares marshall, "i should embark immediately for england." that would never do, exclaims beaumarchais; it would enrage the directory and subject marshall to attacks at home. marshall remarks that he prefers to sail direct, although he knows "that the captains of privateers had received orders to cruise for us ... and take us to the west indies."[ ] beaumarchais sees talleyrand and reports that the foreign minister is horrified at the thought of marshall's returning by way of england; it would "irritate this government" and delay "an accommodation"; it would blast marshall's reputation; the directory "would immediately publish ... that i was gone to england to receive the wages i had earned by breaking off the treaty with france," marshall records of the representations made to him. "i am entitled to safe conduct," cries marshall; and "the calumny threatened against myself is too contemptible to be credited for a moment by those who would utter it." i "despise" it, exclaims the insulted virginian.[ ] thus back and forth went this fantastic dance of corrupt diplomacy and cautious but defiant honesty. at the long last, the interminable gerry finished his review of marshall's reply to talleyrand and made a lengthy and unctuous speech to his colleagues on the righteousness of his own motives. pinckney, intolerably bored and disgusted, told gerry what he thought of him. the new englander peevishly charged marshall and pinckney with concealing their motives. "it is false, sir," shouted pinckney. gerry, he said, was the one who had concealed from his colleagues, not only his purposes, but his clandestine appointments with talleyrand. pinckney rode gerry hard, "and insisted in plain terms on the duplicity which had been practiced [by gerry] upon us both." the latter ridiculously explained, evaded, and, in general, acted according to the expectation of those who warned adams against his appointment. finally, however, marshall's reply was signed by all three and sent to talleyrand.[ ] the calmness, dignity, and conclusiveness of marshall's rejoinder can be appreciated only by reading the entire document. marshall begins his final statement of the american case and refutation of the french claims by declaring what he had stated before, that the american envoys "are ready to consider and to compensate the injury, if the american government has given just cause of complaint to that of france"; and points out that the negotiations which the american envoys had sought fruitlessly for six months, if taken up even now, would "demonstrate the sincerity of this declaration."[ ] this offer marshall repeats again and again. before taking up talleyrand's complaints in detail, he states that if the envoys cannot convince talleyrand that the american government is not in the wrong on a single point talleyrand mentions, the envoys will prove their good faith; and thus, with an offer to compensate france for any wrong, "a base for an accommodation" is established. every grievance talleyrand had made is then answered minutely and at great length. history, reason, evidence, march through these pages like infantry, cavalry, and artillery going to battle. marshall's paper was irresistible. talleyrand never escaped from it. in the course of it there is a passage peculiarly applicable to the present day. answering talleyrand's complaints about newspapers, marshall says:-- "the genius of the constitution, and the opinions of the people of the united states, cannot be overruled by those who administer the government. among those principles deemed sacred in america, ... there is no one ... more deeply impressed on the public mind, than the liberty of the press. that this liberty is often carried to excess, that it has sometimes degenerated into licentiousness, is seen and lamented; but the remedy has not been discovered. perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk, without wounding vitally the plant from which it is torn." at any rate, declares marshall, there is, in america, no redress for "the calumnies and invectives" of the press except "legal prosecution in courts which are alike open to all who consider themselves as injured. without doubt this abuse of a valuable privilege is [a] matter of peculiar regret when it is extended to the government of a foreign nation." it never is so extended "with the approbation of the government of the united states." but, he goes on to say, this is unavoidable "especially on points respecting the rights and interests of america, ... in a nation where public measures are the results of public opinion." this practice of unrestricted criticism was not directed toward france alone, marshall assures talleyrand; "it has been lavished still more profusely on its [france's] enemies and has even been bestowed, with an unsparing hand, on the federal [american] government itself. nothing can be more notorious than the calumnies and invectives with which the wisest measures and most virtuous characters of the united states have been pursued and traduced [by american newspapers]." it is plain, therefore, that the american government cannot influence the american press, the excesses of which are, declares marshall, "a calamity incident to the nature of liberty." he reminds talleyrand that "the same complaint might be urged on the part of the united states. you must well know what degrading and unworthy calumnies against their government, its principles, and its officers, have been published to the world by french journalists and in french pamphlets." yet america had not complained of "these calumnies, atrocious as they are.... had not other causes, infinitely more serious and weighty, interrupted the harmony of the two republics, it would still have remained unimpaired and the mission of the undersigned would never have been rendered necessary."[ ] marshall again briefly sums up in broad outline the injuries which the then french government had inflicted upon americans and american property, and finally declares: "it requires no assurance to convince, that every real american must wish sincerely to extricate his country from the ills it suffers, and from the greater ills with which it is threatened; but all who love liberty must admit that it does not exist in a nation which cannot exercise the right of maintaining its neutrality." referring to talleyrand's desire that gerry remain and conduct the negotiations, marshall remarks that the request "is not accompanied by any assurances of receding from those demands of money heretofore made the consideration on which alone the cessation of hostility on american commerce could be obtained." no one of the three american envoys had power to act alone, he maintains. in spite of neglect and insult marshall still hopes that negotiations may begin; but if that is impossible, he asks for passports and safe-conduct. marshall made his final preparations for sailing, in order, he says, "that i might be in readiness to depart so soon as the will of the government should be signified to me." he was so hurried, he declares, that "i could not even lay in a moderate stock of wine or send my foul linen to be washed."[ ] the now inescapable beaumarchais saw marshall again and told him that talleyrand said that "i [marshall] was no foreign minister; that i was to be considered as a private american citizen, to obtain my passport in the manner pursued by all others through the consul ... i must give my name, stature, age, complexion, &c., to our consul." marshall answered with much heat. beaumarchais conferred with talleyrand, taking marshall's side. talleyrand was obdurate and said that "he was mistaken in me [marshall]; that i prevented all negotiation and that so soon as i was gone the negotiation would be carried on; that in america i belonged to the english faction, which universally hated and opposed the french faction; that all i sought for was to produce a rupture in such a manner as to throw the whole blame on france." marshall replied that talleyrand "endeavored to make our situation more unpleasant than his orders required, in order to gratify his personal feelings," and he flatly refused to leave until ordered to go.[ ] finally marshall and pinckney received their passports. pinckney, whose daughter was ill and could leave france at that time only at the risk of her life, had serious difficulty in getting permission to stay in the south of france. on april , marshall sailed for home. it is characteristic of the man that, notwithstanding his humiliating experiences and the failure of the mission, he was neither sour nor depressed. he had made many personal friends in paris; and on taking ship at bordeaux he does not forget to send them greetings, singling out madame de villette for a gay message of farewell. "present me to my friends in paris," he writes the american consul-general at the french capital, "& have the goodness to say to madam vilette in my name & in the handsomest manner, every thing which respectful friendship can dictate. when you have done that you will have rendered not quite half justice to my sentiments."[ ] gerry, to whom pinckney and marshall did not even bid farewell,[ ] remained in paris, "extremely miserable."[ ] infinitely disgusted, pinckney writes king that gerry, "as i suspected, is resolved to remain here," notwithstanding pinckney's "warm remonstrances with him on the bad consequences ... of such conduct and on the impropriety of" his secret "correspondence with talleyrand under injunction not to communicate it to his colleagues." pinckney says: "i have made great sacrifices of my feelings to preserve union; but in vain. i never met with a man of less candour and so much duplicity as mr. gerry. general marshall is a man of extensive ability, of manly candour, and an honest heart."[ ] footnotes: [ ] _am. st. prs., for. rel._, ii, . this lady was "understood to be madame de villette, the celebrated belle and bonne of voltaire." (lyman: _diplomacy of the united states_, ii, footnote to .) lyman says that "as to the lady an intimation is given that that part of the affair was not much to the credit of the americans." (and see austin: _gerry_, ii, footnote to .) madame de villette was the widow of a royalist colonel. her brother, an officer in the king's service, was killed while defending marie antoinette. robespierre proscribed madame de villette and she was one of a group confined in prison awaiting the guillotine, of whom only a few escaped. (_ib._) [ ] _am. st. prs., for. rel._, ii, . [ ] beaumarchais was one of the most picturesque figures of that theatrical period. he is generally known to-day only as the author of the operas, _the barber of seville_ and the _marriage of figaro_. his suit was to recover a debt for supplies furnished the americans during the revolution. silas deane, for our government, made the original contract with beaumarchais. in addition to the contest before the courts, in which marshall was beaumarchais's attorney, the matter was before congress three times during the claimant's life and, through his heirs, twice after his death. in the case was settled for , francs, which was nearly , , francs less than alexander hamilton, in an investigation, ordered by congress, found to be due the frenchman; and , , livres less than silas deane reported that america owed beaumarchais. arthur lee, beaumarchais's enemy, to whom congress in left the adjustment, had declared that the frenchman owed the united states two million francs. this prejudiced report was the cause of almost a half-century of dispute, and of gross injustice. (see loménie: _beaumarchais et son temps_; also, channing, iii, , and references in the footnote; and perkins: _france in the american revolution_. also see henry to beaumarchais, jan. , ; henry, iii, , in which henry says: "i therefore feel myself gratified in seeing, as i think, ground for hope that yourself, and those worthy and suffering of ours in your nation, who in so friendly a manner advanced their money and goods when we were in want, will be satisfied that nothing has been omitted which lay in our power towards paying them.") [ ] marshall's journal, ii, dec. , . [ ] _am. st. prs., for. rel._, ii, ; marshall's journal, dec. , - . [ ] marshall's journal, dec. , . the "_rôle d'équipage_" was a form of ship's papers required by the french government which it was practically impossible for american masters to furnish; yet, without it, their vessels were liable to capture by french ships under one of the many offensive decrees of the french government. [ ] marshall's journal, dec. , . [ ] _am. st. prs., for. rel._, ii, . [ ] this account in the dispatches is puzzling, for talleyrand spoke english perfectly. [ ] _am. st. prs., for. rel._, ii, . [ ] king to secretary of state (in cipher) london, dec. , ; king, ii, . king to pinckney, marshall, and gerry, dec. , ; _ib._, . [ ] king to pinckney (in cipher) london, dec. , ; king, ii, - . [ ] pinckney to king, dec. , ; king, ii, - . [ ] marshall's journal, dec. , , . [ ] _ib._, jan. , , . [ ] marshall's journal, jan. and , . [ ] _ib._, jan. , . [ ] _ib._, . [ ] _ib._, jan. . [ ] the ellsworth mission. (see _infra_, chap. xii.) [ ] _am. st. prs., for. rel._, ii, . [ ] _am. st. prs., for. rel._, ii, - . [ ] _ib._, . [ ] _am. st. prs., for. rel._, ii, . [ ] marshall's journal, ; also see austin: _gerry_, ii, chap. vi. [ ] _am. st. prs., for. rel._, ii, - . [ ] _am. st. prs., for. rel._, ii, . [ ] _ib._, . [ ] _ib._ [ ] _ib._ [ ] _am. st. prs., for. rel._, ii, . [ ] _am. st. prs., for. rel._, ii, . [ ] _ib._, . [ ] _am. st. prs., for. rel._, ii, . [ ] _ib._, . [ ] _am. st. prs., for. rel._, ii, . [ ] _ib._, - . [ ] _ib._, . [ ] british debts cases. (see vol. i, chap. v.) [ ] murray to j. q. adams, feb. , , _letters_: ford, . murray thought marshall's statement of the american case "unanswerable" and "proudly independent." (_ib._, .) contrast murray's opinion of marshall with his description of gerry, _supra_, chap. vii, , and footnote. [ ] marshall's journal, jan. , , . [ ] _ib._, feb. . [ ] _ib._, feb. , . [ ] marshall's journal, feb. , . [ ] _ib._, feb. , . [ ] _ib._, - , . [ ] marshall's journal, feb. , - . [ ] marshall's journal, feb. , - . [ ] _ib._, feb. and , . [ ] marshall's journal, feb. , - . [ ] undoubtedly beaumarchais. marshall left his client's name blank in his journal, but pickering, on the authority of pinckney, in the official copy, inserted beaumarchais's name in later dates of the journal. [ ] marshall's journal, feb. , - . [ ] marshall's journal, feb. , - . [ ] _ib._, feb. , - . see _supra_, . [ ] _am. st. prs., for. rel._, ii, - ; marshall's journal, march , - . [ ] marshall's journal, march , . [ ] marshall's journal, march , - . [ ] marshall's journal, - ; _am. st. prs., for. rel._, ii, - . [ ] marshall's journal, march , - . [ ] this would seem to indicate that marshall knew that his famous dispatches were to be published. [ ] france was already making "actual war" upon america; the threat of formally declaring war, therefore, had no terror for marshall. [ ] here marshall contradicts his own statement that the french nation was tired of the war, groaning under taxation, and not "universally" satisfied with the government. [ ] marshall to washington, paris, march , ; _amer. hist. rev._, jan., , ii, ; also ms., lib. cong. [ ] marshall's journal, march , . [ ] marshall's journal, march , . [ ] murray to j. q. adams, april , , quoting pinckney; _letters_: ford, . [ ] the exact reverse was true. up to this time american newspapers, with few exceptions, were hot for france. only a very few papers, like fenno's _gazette of the united states_, could possibly be considered as unfriendly to france at this point. (see _supra_, chap. i.) [ ] _am. st. prs., for. rel._, ii, - . [ ] _ib._, . [ ] marshall's journal, march , . [ ] marshall's journal, march , - . [ ] the fairfax purchase. [ ] marshall's journal, march , . [ ] marshall's journal, march , - . [ ] _ib._, april , - . [ ] _am. st. prs., for. rel._, ii, . [ ] _am. st. prs., for. rel._, ii, . [ ] this would seem to dispose of the story that marshall brought home enough "very fine" madeira to serve his own use, supply weddings, and still leave a quantity in existence three quarters of a century after his return. (_green bag_, viii, .) [ ] marshall's journal, april and , , - . [ ] marshall to skipwith, bordeaux, april , ; ms., pa. hist. soc. [ ] murray to j. q. adams, april , ; _letters_: ford, . [ ] same to same, may , ; _ib._, . [ ] pinckney to king, paris, april , , enclosed in a letter to secretary of state, april , ; pickering mss., mass. hist. soc. chapter ix the triumphant return the present crisis is the most awful since the days of vandalism. (robert troup.) millions for defense but not one cent for tribute. (toast at banquet to marshall.) we shall remain free if we do not deserve to be slaves. (marshall to citizens of richmond.) what a wicked use has been made of the x. y. z. dish cooked up by marshall. (jefferson.) while talleyrand's drama of shame was enacting in paris, things were going badly for the american government at home. the french party in america, with whose wrath talleyrand's male and female agents had threatened our envoys, was quite as powerful and aggressive against president adams as the french foreign office had been told that it was.[ ] notwithstanding the hazard and delay of ocean travel,[ ] talleyrand managed to communicate at least once with his sympathizers in america, whom he told that the envoys' "pretensions are high, that possibly no arrangement may take place, but that there will be no declaration of war by france."[ ] jefferson was alert for news from paris. "we have still not a word from our envoys. this long silence (if they have been silent) proves things are not going on very roughly. if they have not been silent, it proves their information, if made public, would check the disposition to arm."[ ] he had not yet received the letter written him march , by his agent, skipwith. this letter is abusive of the administration of washington as well as of that of adams. marshall was "one of the declaiming apostles of jay's treaty"; he and pinckney courted the enemies of the revolutionary government; and gerry's "paralytic mind" was "too weak" to accomplish anything.[ ] the envoys' first dispatches, sent from paris october , , reached philadelphia on the night of march , .[ ] these documents told of the corrupt french demands and machinations. the next morning president adams informed congress of their arrival.[ ] two weeks later came the president's startling message to congress declaring that the envoys could not succeed "on terms compatible with the safety, the honor, or the essential interests of the nation" and "exhorting" congress to prepare for war.[ ] the republicans were dazed. white hot with anger, jefferson writes madison that the president's "insane message ... has had great effect. exultation on the one side & a certainty of victory; while the other [republican] is petrified with astonishment."[ ] the same day he tells monroe that the president's "almost insane message" had alarmed the merchants and strengthened the administration; but he did not despair, for the first move of the republicans "will be a call for papers [the envoys' dispatches].[ ] in congress the battle raged furiously; "the question of war & peace depends now on a toss of cross & pile,"[ ] was jefferson's nervous opinion. but the country itself still continued french in feeling; the republicans were gaining headway even in massachusetts and connecticut; jefferson expected the fall elections to increase the republican strength in the house; petitions against war measures were pouring into congress from every section; the republican strategy was to gain time. jefferson thought that "the present period, ... of two or three weeks, is the most eventful ever known since that of ."[ ] the republicans, who controlled the house of representatives, demanded that the dispatches be made public: they were sure that these papers would not justify adams's grave message. if the president should refuse to send congress the papers it would demonstrate, said the "aurora," that he "suspects the popularity of his conduct if exposed to public view.... if he thinks he has done right, why should he be afraid of letting his measures be known?" let the representatives of the people see "_the whole_ of the papers ... a _partial_ communication would be worse than none."[ ] adams hesitated to reveal the contents of the dispatches because of "a regard for the _personal safety_ of the commissioners and an apprehension of the effect of a disclosure upon our future diplomatic intercourse."[ ] high federalist business men, to whom an intimation of the contents of the dispatches had been given, urged their publication. "we wish much for the papers if they can with propriety be made public" was mason's reply to otis. "the jacobins want them. and in the name of god let them be gratified; it is not the first time they have wished for the means of their destruction."[ ] both federalists who were advised and republicans who were still in the dark now were gratified in their wish to see the incessantly discussed and mysterious message from the envoys. the effect on the partisan maneuvering was as radical and amusing as it is illuminative of partisan sincerity. when, on april , the president transmitted to congress the dispatches thus far received, the republicans instantly altered their tactics. the dispatches did not show that the negotiations were at an end, said the "aurora"; it was wrong, therefore, to publish them--such a course might mean war. their publication was a federalist trick to discredit the republican party; and anyway talleyrand was a monarchist, the friend of hamilton and king. so raged and protested the republican organ.[ ] troup thus reports the change: the republicans, he says, "were very clamorous for the publication [of the dispatches] until they became acquainted with the intelligence communicated. from that moment they opposed publication, and finally they carried a majority against the measure. the senate finding this to be the case instantly directed publication."[ ] the president then transmitted to congress the second dispatch which had been sent from paris two weeks after the first. this contained marshall's superb memorial to talleyrand. it was another blow to republican hopes. the dispatches told the whole story, simply yet with dramatic art. the names of hottenguer, bellamy, and hauteval were represented by the letters x, y, and z,[ ] which at once gave to this picturesque episode the popular name that history has adopted. the effect upon public opinion was instantaneous and terrific.[ ] the first result, of course, was felt in congress. vice-president jefferson now thought it his "duty to be silent."[ ] in the house the republicans were "thunderstruck."[ ] many of their boldest leaders left for home; others went over openly to the federalists.[ ] marshall's disclosures "produced such a shock on the republican mind, as has never been seen since our independence," declared jefferson.[ ] he implored madison to write for the public an analysis of the dispatches from the republican point of view.[ ] after recovering from his "shock" jefferson tried to make light of the revelations; the envoys had "been assailed by swindlers," he said, "but that the directory knew anything of it is neither proved nor probable." adams was to blame for the unhappy outcome of the mission, declared jefferson; his "speech is in truth the only obstacle to negotiation."[ ] promptly taking his cue from his master, madison asserted that the publication of the dispatches served "more to inflame than to inform the country." he did not think talleyrand guilty--his "conduct is scarcely credible. i do not allude to its depravity, which, however heinous, is not without example. its unparalleled stupidity is what fills me with astonishment."[ ] the hot-blooded washington exploded with anger. he thought "the measure of infamy was filled" by the "profligacy ... and corruption" of the french directory; the dispatches ought "to open the eyes of the blindest," but would not "change ... the _leaders_ of the opposition unless there shou'd appear a manifest desertion of the followers."[ ] washington believed the french government "capable [of] any thing bad" and denounced its "outrageous conduct ... toward the united states"; but he was even more wrathful at the "inimitable conduct of its partisans [in america] who aid and abet their measures." he concluded that the directory would modify their defiant attitude when they found "the spirit and policy of this country rising with resistance and that they have falsely calculated upon support from a large part of the people thereof."[ ] then was heard the voice of the country. "the effects of the publication [of the dispatches] ... on the people ... has been prodigious.... the leaders of the opposition ... were astonished & confounded at the profligacy of their beloved friends the french."[ ] in new england, relates ames, "the jacobins [republicans] were confounded, and the trimmers dropt off from the party, like windfalls from an apple tree in september."[ ] among all classes were observed "the most magical effects"; so "irresistible has been the current of public opinion ... that ... it has broken down the opposition in congress."[ ] jefferson mournfully informed madison that "the spirit kindled up in the towns is wonderful.... addresses ... are pouring in offering life & fortune."[ ] long afterwards he records that the french disclosures "carried over from us a great body of the people, real republicans & honest men, under virtuous motives."[ ] in new england, especially, the cry was for "open and deadly war with france."[ ] from boston jonathan mason wrote otis that "war for a time we must have and our fears ... are that ... you [congress] will rise without a proper _climax_.... we pray that decisive orders may be given and that accursed treaty [with france] may be annulled.... the time is now passed, when we should fear giving offense.... the yeomanry are not only united but spirited."[ ] public meetings were held everywhere and "addresses from all bodies and descriptions of men" poured "like a torrent on the president and both houses of congress."[ ] the blood of federalism was boiling. "we consider the present crisis as the most awful since the days of vandalism," declared the ardent troup.[ ] "yankee doodle," "stony point," "the president's march," supplanted in popular favor "Ça ira" and the "marseillaise," which had been the songs americans best loved to sing. the black cockade, worn by patriots during the revolutionary war, suddenly took the place of the french cockade which until the x. y. z. disclosures had decorated the hats of the majority in american cities. the outburst of patriotism produced many songs, among others joseph hopkinson's "hail columbia!" ("the president's march"), which, from its first presentation in philadelphia, caught the popular ear. this song is of historic importance, in that it expresses lyrically the first distinctively national consciousness that had appeared among americans. everywhere its stirring words were sung. in cities and towns the young men formed american clubs after the fashion of the democratic societies of the french party. "hail, columbia! happy land! hail, ye heroes! heaven-born band! who fought and bled in freedom's cause,"-- sang these young patriots, and "hail, columbia!" chanted the young women of the land.[ ] on every hilltop the fires of patriotism were signaling devotion and loyalty to the american government. then came marshall. unannounced and unlooked for, his ship, the alexander hamilton, had sailed into new york harbor after a voyage of fifty-three days from bordeaux.[ ] no one knew of his coming. "general marshall arrived here on sunday last. his arrival was unexpected and his stay with us was very short. i have no other apology to make," writes troup, "for our not giving him a public demonstration of our love and esteem."[ ] marshall hurried on to philadelphia. already the great memorial to talleyrand and the brilliantly written dispatches were ascribed to his pen, and the belief had become universal that the virginian had proved to be the strong and resourceful man of the mission. on june , , he entered the capital, through which, twenty years before, almost to a day, he had marched as a patriot soldier on the way to monmouth from valley forge. never before had any american, excepting only washington, been received with such demonstration.[ ] fleets of carriages filled with members of congress and prominent citizens, and crowds of people on horseback and on foot, went forth to meet him. "the concourse of citizens ... was immense." three corps of cavalry "in full uniform" gave a warlike color to the procession which formed behind marshall's carriage six miles out from philadelphia. "the occasion cannot be mentioned on which so prompt and general a muster of the cavalry ever before took place." when the city was reached, the church bells rang, cannon thundered, and amid "the shouts of the exulting multitudes" marshall was "escorted through the principal streets to the city tavern." the leading federalist newspaper, the "gazette of the united states," records that, "even in the northern liberties,[ ] where the demons of anarchy and confusion are attempting to organize treason and death, repeated shouts of applause were given as the cavalcade approached and passed along."[ ] the next morning o'ellers tavern was thronged with senators and representatives and "a numerous concourse of respectable citizens" who came to congratulate marshall.[ ] the "aurora" confirms this description of its federalist rival; but adds bitterly: "what an occasion for rejoicing! mr. marshall was sent to france for the _ostensible_ purpose, at least, of effecting an amicable accommodation of differences. he returns without having accomplished that object, and on his return the tories rejoice. this certainly looks as if they did not wish him to succeed.... many pensive and melancholy countenances gave the glare of parade a gloom much more suited to the occasion, and more in unison with the feelings of americans. well may they despond: for tho' the patriotic gerry may succeed in settling the differences between the two countries--it is too certain that his efforts can be of no avail when the late conduct of our administration, and the unprecedented intemperance of our chief executive magistrate is known in europe."[ ] jefferson watched marshall's home-coming with keen anxiety. "we heard of the arrival of marshall at new york," he writes, "and i concluded to stay & see whether that circumstance would produce any new projects. no doubt he there received more than hints from hamilton as to the tone required to be assumed.... yet i apprehend he is not hot enough for his friends." with much chagrin he then describes what happened when marshall reached philadelphia: "m. was received here with the utmost éclat. the secretary of state & many carriages, with all the city cavalry, went to frankfort to meet him, and on his arrival here in the evening, the bells rung till late in the night, & immense crowds were collected to see & make part of the shew, which was circuitously paraded through the streets before he was set down at the city tavern." but, says jefferson, "all this was to secure him [marshall] to their [the administration's] views, that he might say nothing which would expose the game they have been playing.[ ] since his arrival i can hear nothing directly from him." swallowing his dislike for the moment, jefferson called on marshall while the latter was absent from the tavern. "thomas jefferson presents his compliments to general marshall" ran the card he left. "he had the honor of calling at his lodgings twice this morning, but was so unlucky as to find that he was out on both occasions. he wished to have expressed in person his regret that a pre-engagement for to-day which could not be dispensed with, would prevent him the satisfaction of dining in company with general marshall, and therefore begs leave to place here the expressions of that respect which in company with his fellow citizens he bears him."[ ] many years afterwards marshall referred to the adding of the syllable "un" to the word "lucky" as one time, at least, when jefferson came near telling the truth.[ ] to this note marshall returned a reply as frigidly polite as jefferson's:-- "j. marshall begs leave to accompany his respectful compliments to mr. jefferson with assurances of the regret he feels at being absent when mr. jefferson did him the honor to call on him. "j. marshall is extremely sensible to the obliging expressions contained in mr. jefferson's polite billet of yesterday. he sets out to-morrow for winchester & would with pleasure charge himself with any commands of mr. jefferson to that part of virginia."[ ] having made his report to the president and secretary of state, marshall prepared to start for virginia. but he was not to leave without the highest compliment that the administration could, at that time, pay him. so gratified were the president, cabinet, and federalist leaders in congress with marshall's conduct in the x. y. z. mission, and so high their opinion of his ability, that adams tendered him the appointment to the place on the supreme bench,[ ] made vacant by the death of justice wilson. marshall promptly declined. after applying to the fairfax indebtedness all the money which he might receive as compensation for his services in the french mission, there would still remain a heavy balance of obligation; and marshall must devote all his time and strength to business. on the night before his departure, the members of congress gave the hero of the hour the historic dinner at the city's principal tavern, "as an evidence of their affection for his person and their gratified approbation of the patriotic firmness with which he sustained the dignity of his country during his important mission." one hundred and twenty enthusiastic men sat at the banquet table. the speaker of the national house, the members of the cabinet, the justices of the supreme court, the speaker of the pennsylvania state senate, the field officers of the army, the right reverend bishops carroll and white, "and other distinguished public characters attended." toasts "were drank with unbounded plaudits" and "many of them were encored with enthusiasm." high rose the spirit of federalism at o'eller's tavern in philadelphia that night; loud rang federalist cheers; copiously flowed federalist wine. "millions for defense but not a cent for tribute!" was the crowning toast of that jubilant evening. it expressed the spirit of the gathering; out over the streets of philadelphia rolled the huzzas that greeted it. but its unknown author[ ] "builded better than he knew." he did more than flatter marshall and bring the enthusiastic banqueters, wildly shouting, to their feet: he uttered the sentiment of the nation. "millions for defense but not a cent for tribute" is one of the few historic expressions in which federalism spoke in the voice of america. thus the marshall banquet in philadelphia, june , , produced that slogan of defiant patriotism which is one of the slowly accumulating american maxims that have lived. after marshall retired from the banquet hall, the assemblage drank a final toast to "the man whom his country delights to honor."[ ] marshall was smothered with addresses, congratulations, and every variety of attention from public bodies and civic and military organizations. a committee from the grand jury of gloucester county, new jersey, presented the returned envoy a laudatory address. his answer, while dignified, was somewhat stilted, perhaps a trifle pompous. the grand jury compliment was, said marshall, "a sweet reward" for his "exertions." the envoys wished, above all things, for peace, but felt "that not even peace was to be purchased at the price of national independence."[ ] the officers of a militia brigade delivered to marshall a eulogy in which the war note was clear and dominant. marshall answered that, desirable as peace is, it "ought not to have been bought by dishonor and national degradation"; and that the resort to the sword, for which the militia officers declared themselves ready, made marshall "feel with an elevated pride the dignity and grandeur of the american character."[ ] the day before marshall's departure from philadelphia the president, addressing congress, said: "i congratulate you on the arrival of general marshall ... at a place of safety where he is justly held in honor.... the negotiation may be considered at an end. _i will never send another minister to france without assurances that he will be received, respected, and honored as the representative of a great, free, powerful, and independent nation._"[ ] bold and defiant words expressive of the popular sentiment of the hour; but words which were to be recalled later by the enemies of adams, to his embarrassment and to the injury of his party.[ ] "having heard that mrs. marshall is in winchester i shall immediately set out for that place,"[ ] marshall writes washington. his departure from the capital was as spectacular as his arrival. he "was escorted by detachments of cavalry," says the "aurora." "certainly nothing less was due considering the distinguished services which he has rendered by his mission--he has acquired some knowledge of the french language,"[ ] sneers that partisan newspaper in good republican fashion. when marshall approached lancaster he was met by companies of "cavalry and uniformed militia" which escorted him into the town, where he was "welcomed by the discharges of artillery and the ringing of bells."[ ] his journey throughout pennsylvania and virginia, repeating scenes of his welcome at philadelphia and lancaster, ended at richmond. there, among his old neighbors and friends, the demonstrations reached their climax. a long procession of citizens went out to meet him. again rang the cheers, again the bells pealed, again the cannon thundered. and here, to his townsmen and friends, marshall, for the first time, publicly opened his heart and told, with emotion, what had befallen in france. in this brief speech the nationalist and fighting spirit, which appears in all his utterances throughout his entire life, flashes like a sword in battle. marshall cannot express his "emotions of joy" which his return to richmond has aroused; nor "paint the sentiments of affection and gratitude towards" his old neighbors. nobody, he assures his hearers, could appreciate his feelings who had not undergone similar experiences. the envoys, far from their country with no news from their government, were in constant anxiety, says marshall. he tells of their trials, of how they had discharged their duty, of his exultation over the spirit america was now displaying. "i rejoice that i was not mistaken in the opinion i had formed of my countrymen. i rejoice to find, though they know how to estimate, and therefore seek to avoid the horrors and dangers of war, yet they know also how to value the blessings of liberty and national independence. peace would be purchased at too high a price by bending beneath a foreign yoke" and such a peace would be but brief; for "the nation thus submitting would be soon involved in the quarrels of its master.... we shall remain free if we do not deserve to be slaves." marshall compares the governments of france and america. to one who, like himself, is so accustomed to real liberty that he "almost considers it as the indispensable companion of man, a view of [french] despotism," though "borrowing the garb usurping the name of freedom," teaches "the solid safety and real security" existing in america. the loss of these "would poison ... every other joy." without them "freemen would turn with loathing and disgust from every other comfort of life." to preserve them, "all ... difficulties ought to be encountered." stand by "the government of your choice," urges marshall; its officials are from the people, "subject in common with others to the laws they make," and must soon return to the popular body "whose destiny involves their own and in whose ruin they must participate." this is always a good rule, but "it is peculiarly so in a moment of peril like the present" when "want of confidence in our government ... furnishes ... a foreign real enemy [france] those weapons which have so often been so successfully used."[ ] the mayor, recorder, aldermen, and common council of richmond presented marshall with an address of extravagant praise. "if reason and argument ... if integrity, candor, and the pure spirit of conciliation" had met like qualities in france, "smiling peace would have returned along with you." but if marshall had not brought peace, he had warned america against a government "whose touch is death." perhaps he had even preserved "our excellent constitution and ... our well earned liberties." in answer marshall said that he reciprocated the "joy" of his "fellow citizens, neighbors, and ancient friends" upon his return; that they were right in thinking honorable peace with france was impossible; and warned them against "the countless dangers which lurk beneath foreign attachments."[ ] marshall had become a national hero. known before this time, outside of his own state, chiefly to the eminent lawyers of america, his name now became a household word in the remotest log cabins of kentucky and tennessee, as well as in the residences of boston and new york. "saving general washington, i believe the president, pinckney, and marshall are the most popular characters now in our country," troup reported to king in london.[ ] for the moment, only one small cloud appeared upon the horizon of marshall's popularity; but a vicious flash blazed from it. marshall went to fredericksburg on business and attended the little theater at that place. the band of the local artillery company furnished the music. a philadelphia federalist, who happened to be present, ordered them to play "the president's march" ("hail, columbia!"). instantly the audience was in an uproar. so violent did they become that "a considerable riot took place." marshall was openly insulted. nor did their hostility subside with marshall's departure. "the inhabitants of fredericksburg waited," in anxious expectation, for an especially hated federalist congressman, harper of south carolina, to pass through the town on his way home, with the intention of treating him even more roughly.[ ] with this ominous exception, the public demonstrations for marshall were warmly favorable. his strength with the people was greater than ever. by the members of the federal party he was fairly idolized. this, the first formal party organization in our history, was, as we have seen, in sorry case even under washington. the assaults of the republicans, directed by jefferson's genius for party management, had all but wrecked the federalists. that great party general had out-maneuvered his adversaries at every point and the president's party was already nearing the breakers. the conduct of the french mission and the publication of marshall's dispatches and letters to talleyrand saved the situation for the moment. those whom jefferson's consummate skill had won over to the republican party returned by thousands to their former party allegiance.[ ] congress acted with belated decision. our treaty with france was abrogated; non-intercourse laws passed; a provisional army created; the navy department established; arsenals provided; the building of warships directed. for a season our national machinery was permitted to work with vigor and effectiveness. the voices that were wont to declaim the glories of french democracy were temporarily silent. the people, who but yesterday frantically cheered the "liberté, égalité, fraternité" of robespierre and danton, now howled with wrath at mention of republican france. the pulpit became a tribune of military appeal and ministers of the gospel preached sermons against american "jacobins."[ ] federalist orators had their turn at assailing "despotism" with rhetoric and defending "liberty" with eloquence; but the french government was now the international villain whom they attacked. "the struggle between liberty and despotism, government and anarchy, religion and atheism, has been gloriously decided.... france has been foiled, and america is free. the elastick veil of gallick perfidy has been rent, ... the severing blow has been struck." our abrogation of the treaty with france was "the completion of our liberties, the acme of our independence ... and ... emancipated us from the oppressive friendship of an ambitious, malignant, treacherous ally." that act evidenced "our nation's manhood"; our government was now "an hercules, who, no longer amused with the coral and bells of 'liberty and equality' ... no longer willing to trifle at the _distaff_ of a 'lady negociator,' boldly invested himself in the _toga virilis_."[ ] such was the language of the public platform; and private expressions of most men were even less restrained. denouncing "the domineering spirit and boundless ambition of a nation whose turpitude has set _all objections_, divine & human, at naught,"[ ] washington accepted the appointment as commander-in-chief of the newly raised army. "huzza! huzza! huzza! how transporting the fact! the great, the good, the aged washington has said 'i am ready again to go with my fellow citizens to the field of battle in defense of the liberty & independence of my country,'" ran a newspaper announcement, typically voicing the popular heart.[ ] to marshall's brother james, who had offered his services as an aide-de-camp, washington wrote that the french "(although _i_ conceive them capable of _anything_ that is unjust or dishonorable)" will not "attempt a serious invasion of this country" when they learn of "the preparation which [we] are making to receive them." they have "made calculations on false ground" in supposing that americans would not "support independence and the government of their country _at every hazard_." nevertheless, "the highest possible obligation rests upon the country to be prepared for the event as the most effective means to avert the evil."[ ] military preparations were active and conspicuous: on july , new york city "resembles a camp rather than a commercial port," testifies troup.[ ] the people for the moment believed, with marshall and washington, that we were on the brink of war; had they known what jefferson knew, their apprehension would have been still keener. reporting from paris, the french partisan skipwith tells jefferson that, from motives of "commercial advantage and aggrandisement" as well as of "vengeance," france will probably fall upon america. "yes sir, the moment is come that i see the fortunes, nay, independence, of my country at hazard, and in the hands of the most gigantic nation on earth.... already, the language of planting new colonies upon the ... mississippi is the language of frenchmen here."[ ] skipwith blames this predicament upon adams's character, speech, and action and upon marshall's and pinckney's conduct in paris;[ ] and advises jefferson that "war may be prevented, and our country saved" by "modifying or breaking" the jay treaty and lending money to france.[ ] jefferson was frantic with disappointment and anger. not only did he see the republican party, which he had built up with such patience and skill, going to pieces before his very eyes; but the prospect of his election to the presidency as the successor of adams, which until then appeared to be inviting, now jeopardized if not made hopeless. with his almost uncanny understanding of men, jefferson laid all this to marshall; and, from the moment of his fellow virginian's arrival from france, this captain of the popular cause began that open and malignant warfare upon marshall which ended only with jefferson's last breath. at once he set out to repair the havoc which marshall's work had wrought in his party. this task was made the harder because of the very tactics which jefferson had employed to increase the republican strength. for, until now, he had utilized so thoroughly the deep and widespread french sentiment in america as his immediate party weapon, and made so emphatic the french issue as a policy of party tactics, that, in comparison, all other issues, except the central one of states' rights, were secondary in the public mind at this particular time. the french propaganda had gone farther than jefferson, perhaps, intended it to go. "they [the french] have been led to believe by their agents and partisans amongst _us_," testifies washington, "that we are a divided people, that the latter are opposed to their own government."[ ] at any rate, it is certain that a direct connection, between members of what the french politicians felt themselves justified in calling "the french party" in america and the manipulators of french public opinion, existed and was made use of. this is shown by the effect in france of jefferson's famous letter to mazzei of april , .[ ] it is proved by the amazing fact that talleyrand's answer to the memorial of the envoys was published in the jeffersonian organ, the "aurora," before adams had transmitted that document to congress, if not indeed before the president himself had received from our envoys talleyrand's reply to marshall's statement of the american case.[ ] jefferson took the only step possible to a party leader. he sought to minimize the effect of the disclosures revealed in marshall's dispatches. writing to peter carr, april , , jefferson said: "you will perceive that they [the envoys] have been assailed by swindlers, whether with or without the participation of talleyrand is not very apparent.... that the directory knew anything of it is neither proved nor probable."[ ] on june , , jefferson wrote to archibald stuart: "it seems fairly presumable that the douceur of , guineas mentioned in the former dispatches was merely from x. and y. as not a word is ever said by talleyrand to our envoys nor by them to him on the subject."[ ] thus jefferson's political desperation caused him to deny facts which were of record, for the dispatches show, not only that talleyrand had full knowledge of the disgraceful transaction, but also that he originated and directed it. the efforts of the republicans to sneer away the envoys' disclosures awakened washington's bitter sarcasm. the republicans were "thunder-stricken ... on the publication of the dispatches from our envoys," writes he, "but the contents of these dispatches are now resolved by them into harmless chitchat--mere trifles--less than was or ought to have been expected from the misconduct of the administration of this country, and that it is better to submit to such chastisement than to hazard greater evils by shewing futile resentment."[ ] jefferson made no headway, however, in his attempts to discredit the x. y. z. revelations. had the federalists stopped with establishing the navy department and providing for an army, with washington at its head; had they been content to build ships and to take other proper measures for the national defense, adams's administration would have been saved, the federalist party kept alive for at least four years more, the republican party delayed in its recovery and jefferson's election to the presidency made impossible. here again fate worked, through the blindness of those whose day had passed, the doom of federalism. the federalists enacted the alien and sedition laws and thus hastened their own downfall. even after this legislation had given him a new, real, and irresistible "issue," jefferson still assailed the conduct of marshall and pinckney; he was resolved that not a single republican vote should be lost. months later he reviews the effect of the x. y. z. disclosures. when the envoys were appointed, he asserts, many "suspected ... from what was understood of their [marshall's and pinckney's] dispositions," that the mission would not only fail, but "widen the breach and provoke our citizens to consent to a war with" france "& union with england." while the envoys were in paris the administration's hostile attitude toward france alarmed the people; "meetings were held ... in opposition to war"; and the "example was spreading like a wildfire." then "most critically for the government [administration]," says jefferson, "the dispatches ... prepared by ... marshall, with a view to their being made public, dropped into their laps. it was truly a god-send to them & they made the most of it. many thousands of copies were printed & dispersed gratis, at the public expense; & the zealots for war co-operated so heartily, that there were instances of single individuals who printed & dispersed . or , copies at their own expense. the odiousness of the corruption supposed in those papers excited a general & high indignation among the people." thus, declares jefferson, the people, "unexperienced in such maneuvers," did not see that the whole affair was the work of "private swindlers" unauthorized by "the french government of whose participation there was neither proof nor probability." so "the people ... gave a loose [tongue] to" their anger and declared "their honest preference of war to dishonor. the fever was long & successfully kept up and ... war measures as ardently crowded."[ ] jefferson's deep political sagacity did not underestimate the revolution in the thought and feelings of the masses produced by the outcome of the french mission; and he understood, to a nicety, the gigantic task which must be performed to reassemble and solidify the shattered republican ranks. for public sentiment was, for the time being, decidedly warlike. "we will pay tribute to no nation; ... we shall water our soil with our blood ... before we yield,"[ ] was troup's accurate if bombastic statement of the popular feeling. when the first ship with american newspapers containing the x. y. z. dispatches reached london, they were at once "circulated throughout europe,"[ ] and "produced everywhere much sensation favorable to the united states and hostile to france."[ ] the intimates of talleyrand and the directory were "disappointed and chagrined.... nothing can exceed the rage of the apostate americans, who have so long misrepresented and disgraced their country at paris."[ ] from the first these self-expatriated americans had flattered gerry and sent swarms of letters to america about the good intentions of the directory.[ ] american diplomatic representatives abroad were concerned over gerry's whimsical character and conduct. "gerry is yet in paris!... i ... fear ... that man's more than infantine weakness. of it you cannot have an idea, unless you had seen him here [the hague] and at paris. erase all the two lines above; it is true, but it is cruel. if they get hold of him they will convert him into an innocent baby-engine against the government."[ ] and now gerry, with whom talleyrand had been amusing himself and whose conceit had been fed by american partisans of france in paris, found himself in sorry case. talleyrand, with cynical audacity, in which one finds much grim humor, peremptorily demands that gerry tell him the names of the mysterious "x., y., and z." with comic self-abasement, the new englander actually writes talleyrand the names of the latter's own agents whom gerry had met in talleyrand's presence and who the french minister personally had informed gerry were dependable men. the federalists made the most of gerry's remaining in paris. marshall told them that gerry had "suffered himself to be wheedled in paris."[ ] "i ... rejoice that i voted against his appointment,"[ ] declared sedgwick. cabot denounced gerry's "course" as "the most dangerous that cou'd have been taken."[ ] higginson asserted that "those of us who knew him [gerry] regretted his appointment and expected mischief from it; but he has conducted himself worse than we had anticipated."[ ] the american minister to great britain, bitterly humiliated, wrote to hamilton that gerry's "answer to talleyrand's demands of the names of x, y, and z, place him in a more degraded light than i ever believed it possible that he or any other american citizen could be exhibited."[ ] and thomas pinckney feared "that to want of [gerry's] judgment ... may be added qualities of a more criminal nature."[ ] such sentiments, testifies pickering, were common to all "the public men whom i had heard speak of mr. g."; pinckney, gerry's colleague, tells his brother that he "never met with a man _so destitute of candour and so full of deceit as mr. gerry_," and that this opinion was shared by marshall.[ ] troup wrote: "we have seen and read with the greatest contempt the correspondence between talleyrand and mr. gerry relative to messrs. x. y. and z.... i can say nothing honorable to [of] him [gerry]. de mortuis nil nisi bonum is a maxim as applicable to him as if he was in his grave."[ ] washington gave his opinion with unwonted mildness: "nothing can excuse his [gerry's] _secret_ negotiations.... i fear ... that _vanity_ which may have led him into the mistake--& consciousness of being _duped_ by the _diplomatic skill_ of our good and magnanimous allies are too powerful for a weak mind to overcome."[ ] marshall was on tenter-hooks for fear that gerry would not leave france before the directory got wind "of the present temper" of the american people, and would hint to gerry "insidious propositions ... not with real pacific views but for the purpose of dividing the people of this country and separating them from their government."[ ] the peppery secretary of state grew more and more intolerant of gerry. he tells marshall that "gerry's correspondence with talleyrand about w.[ ] x. y. and z: ... is the finishing stroke to his conduct in france, by which he has dishonoured and injured his country and sealed his own indelible disgrace."[ ] marshall was disgusted with the gerry-talleyrand correspondence about the names of "x. y. z.," and wrote pickering of gerry's dinner to talleyrand at which hottenguer, bellamy, and hauteval were present and of their corrupt proposition to gerry in talleyrand's presence.[ ] pickering urged marshall to write "a short history of the mission of the envoys extraordinary," and asked permission to show marshall's journal to president adams.[ ] marshall is "unwilling," he says, "that my hasty journal, which i had never even read over until i received it from you, should be shown to him. this unwillingness proceeds from a repugnance to give him the vexation which i am persuaded it would give him." nevertheless, adams did read marshall's journal, it appears; for cabot believed that "the reading of marshall's journal has compelled the p[resident] to ... acquiesce in the unqualified condemnation of gerry."[ ] on his return to america, gerry writes a turgid letter defending himself and exculpating talleyrand and the directory. the secretary of state sends gerry's letter to marshall, declaring that gerry "ought to be impeached."[ ] it "astonishes me," replies marshall; and while he wishes to avoid altercation, he thinks "it is proper for me to notice this letter," and encloses a communication to gerry, together with a "certificate," stating the facts of gerry's now notorious dinner to talleyrand.[ ] marshall is especially anxious to avoid any personal controversy at the particular moment; for, as will presently appear, he is again running for office. he tells pickering that the virginia republicans are "perfectly prepared" to use gerry in any way "which can be applied to their purposes"; and are ready "to receive him into their bosoms or to drop him entirely as he may be french or american." he is so exasperated, however, that he contemplates publishing the whole truth about gerry, but adds: "i have been restrained from doing so by my having as a punishment for some unknown sins, consented to be nam'd a candidate for the ensuing election to congress."[ ] finding himself so violently attacked in the press, marshall says: "to protect myself from the vexation of these newspaper altercations ... i wish if it be possible to avoid appearing in print myself." also he makes the excuse that the courts are in session, and that "my absence has plac'd my business in such a situation as scarcely to leave a moment which i can command for other purposes."[ ] a week later marshall is very anxious as to what course gerry intends to take, for, writes marshall, publications to mollify public opinion toward france and to irritate it against england "and to diminish the repugnance to pay money to the french republic are appearing every day."[ ] the indefatigable republican chieftain had been busily inspiring attacks upon the conduct of the mission and particularly upon marshall. "you know what a wicked use has been made of the ... x. y. z. dish cooked up by marshall, where the swindlers are made to appear as the french government," wrote jefferson to pendleton. "art and industry combined have certainly wrought out of this business a wonderful effect on the people." but "now that gerry comes out clearing the french government of that turpitude, ... the people will be disposed to suspect they have been duped." because marshall's dispatches "are too voluminous for them [the people] and beyond their reach" jefferson begs pendleton to write a pamphlet "recapitulating the whole story ... short, simple & levelled to every capacity." it must be "so concise as omitting nothing material, yet may be printed in handbills." jefferson proposes to "print & disperse . or , copies"[ ] free of postage under the franks of republican congressmen. pickering having referred scathingly to the gerry-talleyrand dinner, gerry writes the president, to deny marshall's account of that function. marshall replies in a personal letter to gerry, which, considering marshall's placid and unresentful nature, is a very whiplash of rebuke; it closes, however, with the hope that gerry "will think justly of this subject and will thereby save us both the pain of an altercation i do so wish to avoid."[ ] a few months later marshall, while even more fixed than ever in his contempt for gerry, is mellower in expressing it. "i am grieved rather than surprised at mr. gerry's letter," he writes.[ ] so ended the only incident in marshall's life where he ever wrote severely of any man. although the unfriendliness between jefferson and himself grew through the years into unrelenting hatred on both sides, marshall did not express the intensity of his feeling. while his courage, physical and moral, was perfect, he had no stomach for verbal encounters. he could fight to the death with arms or arguments; but personal warfare by tongue or pen was beyond or beneath him. marshall simply could not scold or browbeat. he was incapable of participating in a brawl. soon after reaching richmond, the domestic marshall again shines out sunnily in a letter to his wife at winchester, over the blue ridge. he tells his "dearest polly" that although a week has passed he has "scarcely had time to look into any business yet, there are so many persons calling every hour to see me.... the hot and disagreeable ride" to richmond had been too much for him, but "if i could only learn that you were entirely restored i should be happy. your mama & friends are in good health & your mama is as cheerful as usual except when some particular conversation discomposes her. "your sweet little mary is one of the most fascinating little creatures i ever beheld. she has improved very much since i saw her & i cannot help agreeing that she is a substitute for her lovely sister. she talks in a way not easily to be understood tho she comprehends very well everything that is said to her & is the most coquettish little prude & the most prudish little coquet i ever saw. i wish she was with you as i think she would entertain you more than all the rest of your children put together. "poor little john[ ] is cutting teeth & of course is sick. he appeared to know me as soon as he saw me. he would not come to me, but he kept his eyes fixed on me as on a person he had some imperfect recollection of. i expect he has been taught to look at the picture & had some confused idea of a likeness. he is small & weakly but by no means an ugly child. if as i hope we have the happiness to raise him i trust he will do as well as the rest. poor little fellow, the present hot weather is hard on him cutting teeth, but great care is taken of him & i hope he will do well. "i hear nothing from you my dearest polly but i will cherish the hope that you are getting better & will indulge myself with expecting the happiness of seeing you in october quite yourself. remember my love to give me this pleasure you have only to take the cold bath, to use a great deal of exercise, to sleep tranquilly & to stay in cheerful company. i am sure you will do everything which can contribute to give you back to yourself & me. this hot weather must be very distressing to you--it is to everybody--but it will soon be colder. let me know in time everything relative to your coming down. farewell my dearest polly. i am your ever affectionate "j. marshall."[ ] on taking up his private business, marshall found himself hard-pressed for money. payments for the fairfax estate were overdue and he had no other resources with which to meet them but the money due him upon his french mission. "the disarrangement," he writes to the secretary of state, "produc'd by my absence and the dispersion of my family oblige me to make either sales which i do not wish or to delay payments of money which i ought not to delay, unless i can receive from the treasury. this state of things obliges me to apply to you and to ask whether you can furnish me either with an order from the secretary of the treasury on colo. carrington or with your request to him to advance money to me. the one or the other will be sufficient."[ ] pickering writes marshall that carrington can safely advance him the needed cash. "i will lose no time to place the balance in your hands,"[ ] says pickering, upon the receipt of marshall's statement of his account with the government. the total amount paid marshall for his eleven months' absence upon the french mission was $ , . ,[ ] which, allowing five thousand dollars for his expenses--a generous estimate--was considerably more than three times as much as marshall's annual income from his law practice. it was an immense sum, considering the compensation of public officials at that period--not much less than the annual salaries of the president and his entire cabinet; more than the total amount annually paid to the justices of the supreme court. thus, for the time being, the fairfax estate was saved. it was still necessary, however, if he, his brother, and brother-in-law, were to discharge the remaining payments, that marshall should give himself to the business of making money--to work much harder than ever he had done before and than his natural inclinations prompted. therefore, no more of unremunerative public life for him--no more waste of time in the legislature. there never could, of course, come another such "god-send," to use marshall's phrase as reported by jefferson,[ ] as the french mission; and few public offices, national or state, yielded so much as he could make in the practice of his profession. thus financial necessity and his own desire settled marshall in the resolve, which he believed nothing ever could shake, to give the remainder of his days to his personal and private business. but fate had her own plans for john marshall and again overruled what he believed to be his fixed and unalterable purpose. footnotes: [ ] see summary in mcmaster, ii, . [ ] six copies of the dispatches of the american envoys to the secretary of state were sent by as many ships, so that at least one of them might reach its destination. [ ] jefferson to madison, jan. , ; _works_: ford, viii, . [ ] jefferson to madison, feb. , ; _works_: ford, viii, . [ ] skipwith to jefferson, paris, march , ; gibbs, ii, . [ ] _am. st. prs., for. rel._, ii, , , , , . [ ] _ib._ the president at this time communicated only the first dispatch, which was not in cipher. it merely stated that there was no hope that the envoys would be received and that a new decree directed the capture of all neutral ships carrying any british goods whatever. (_ib._, .) [ ] _ib._, ; richardson, i, ; and _works_: adams, ix, . [ ] jefferson to madison, march , ; _works_: ford, viii, . [ ] jefferson to monroe, march , ; _ib._, - . [ ] jefferson to madison, march , ; _ib._, . [ ] jefferson to pendleton, april , ; _ib._, - . [ ] _aurora_, april , . [ ] otis to mason, march , ; morison, i, . [ ] jonathan mason to otis, march , ; _ib._, . and see the valuable new england federalist correspondence of the time in _ib._ [ ] _aurora_, april , . a week later, under the caption, "the catastrophe," the _aurora_ began the publication of a series of ably written articles excusing the conduct of the french officials and condemning that of marshall and pinckney. [ ] troup to king, june , ; king, ii, . ten thousand copies of the dispatches were ordered printed and distributed at public expense. eighteen hundred were sent to virginia alone. (pickering to marshall, july , ; pickering mss., mass. hist. soc.) this was the beginning of the printing and distributing of public documents by the national government. (hildreth, ii, .) [ ] pickering's statement, april , ; _am. st. prs._, ii, . [ ] jefferson to madison, april , ; _works_: ford, viii, . [ ] _ib._ [ ] pickering to jay, april , ; _jay_: johnston, iv, . [ ] jefferson to madison, april , ; _works_: ford, viii, . among the republicans who deserted their posts jefferson names giles, nicholas, and clopton. [ ] jefferson to madison, april , ; _ib._, . [ ] _ib._, april , ; _ib._, . [ ] jefferson to carr, april , ; _works_: ford, viii, - . [ ] madison to jefferson, april , ; _writings_: hunt, vi, . [ ] washington to pickering, april , ; _writings_: ford, xiii, . [ ] washington to hamilton, may , ; _ib._, xiv, - . [ ] sedgwick to king, may , ; king, ii, . [ ] ames to gore, dec. , ; _works_: ames, i, - . [ ] troup to king, june , ; king, ii, . [ ] jefferson to madison, may , , _works_: ford, viii, . [ ] jefferson to monroe, march , ; _ib._, ix, . [ ] higginson to pickering, june , ; pickering mss., mass. hist. soc. [ ] jonathan mason to otis, may , ; morison, i, - . [ ] troup to king, june , ; king, ii, . [ ] _ib._, ; and see letters of bingham, lawrence, and cabot to king, _ib._, - . from the newspapers of the time, mcmaster has drawn a brilliant picture of the thrilling and dramatic scenes which all over the united states marked the change in the temper of the people. (mcmaster, ii, _et seq._) [ ] "hail columbia exacts not less reverence in america than the marseillaise hymn in france and rule britannia in england." (davis, .) [ ] norfolk (va.) _herald_, june , . [ ] troup to king, june , ; king, ii, . [ ] even franklin's welcome on his first return from diplomatic service in england did not equal the marshall demonstration. [ ] a strenuously republican environ of philadelphia. [ ] _gazette of the united states_, june , ; see also claypoole's _american daily advertiser_, wednesday, june , . [ ] _gazette of the united states_, june , . [ ] _aurora_, june , ; and see _ib._, june . [ ] jefferson to madison, june , ; _works_: ford, viii, - . [ ] general marshall at o'eller's hotel, june , ; jefferson mss., lib. cong. [ ] _green bag_, viii, - . [ ] marshall to jefferson; jefferson mss., lib. cong. [ ] pickering to marshall, sept. , ; pickering mss., mass. hist. soc. [ ] this sentiment has been ascribed to general c. c. pinckney, marshall's colleague on the x. y. z. mission. but it was first used at the philadelphia banquet to marshall. pinckney's nearest approach to it was his loud, and wrathful, "no! not a sixpence!" when hottenguer made one of his incessant demands for money. (see _supra_, .) [ ] claypoole's _american daily advertiser_, wednesday, june , ; pa. hist. soc. the toasts drank at this dinner to marshall illustrate the popular spirit at that particular moment. they also furnish good examples of the vocabulary of federalism at the period of its revival and only two years before its annihilation by jefferson's new party:-- " . the united states--'free, sovereign & independent.' " . the people and the government--'one and indivisible.' " . the president--'some other hand must be found to sign the ignominious deed' that would surrender the sovereignty of his country. " . general washington--'his name a rampart & the knowledge that he lives a bulwark against mean and secret enemies of his country's peace.' " . general pinckney. ''tis not in mortals to command success: he has done more--deserved it.' " . the officers & soldiers of the american army. 'may glory be their theme, victory their companion, & gratitude & love their rewards.' " . the navy of the united states. 'may its infant efforts, like those of hercules, be the presage of its future greatness.' " . the militia. 'may they never cease to combine the valor of the soldier with the virtues of the citizen.' " . the gallant youth of america. 'may they disdain to hold as tenants at will, the independence inherited from their ancestors.' " . the heroes who fell in the revolutionary war. 'may their memory never be dishonored by a surrender of the freedom purchased with their blood.' " . the american eagle. 'may it regard with disdain the crowing of the gallic cock.' " . union & valour--infallible antidotes against diplomatic skill. " . millions for defense but not a cent for tribute. " . the first duties of a good citizen--reverence for the laws and respect for the magistracy. " . agriculture & commerce--a dissolution of whose partnership will be the bankruptcy of both. " . the constitution--'esto perpetua.' "after general marshall retired:-- "general marshall--the man whom his country delights to honor." (_ib._, june , .) [ ] claypoole's _american daily advertiser_, monday, june , ; and _gazette of the united states_, saturday, june , . [ ] _ib._, june , ; and june , . [ ] adams to congress, june , ; _works_: adams, ix, ; and richardson, i, . italics are mine. [ ] _infra_, chap. xii. [ ] marshall to washington, june , ; ms., lib. cong. [ ] _aurora_, june , . [ ] _gazette of the united states_, june , . [ ] _columbian centinel_, boston, sept. , . [ ] norfolk (va.) _herald_, aug. , . [ ] troup to king, nov. , ; king, ii, ; and see same to same, july , ; _ib._, . [ ] carey's _united states recorder_, aug. , . [ ] mcmaster, ii, - ; hildreth, v, _et seq._ [ ] mcmaster, ii, - . [ ] "oration of robert treat paine to young men of boston," july , ; in works of _robert treat paine_, ed. , _et seq._ [ ] washington to murray, aug. , ; _writings_: ford, xiv, . [ ] norfolk (va.) _herald_, july , . [ ] washington to jas. marshall, july , ; ms., n.y. pub. lib. and see washington to murray, aug. , ; _writings_: ford, xiv, . "i ... hope that ... when the despots of france find how much they ... have been deceived by their partisans _among us_, ... that an appeal to arms ... will be ... unnecessary." (_ib._) [ ] troup to king, july , ; king, ii, . [ ] skipwith to jefferson, march , ; gibbs, ii, . [ ] _supra_, chap. viii. [ ] skipwith to jefferson, march , ; gibbs, ii, . [ ] washington to adams, july , ; _writings_: ford, xiv, - . [ ] see _infra_, chap. xii. [ ] see marshall ( st ed.), v, footnote to ; hildreth, v, ; also mcmaster, ii, . [ ] jefferson to carr, april , ; _works_: ford, viii, . [ ] jefferson to stuart, june , ; _ib._, . [ ] washington to mchenry, may, ; _writings_: ford, xiii, footnote to . [ ] jefferson to gerry, jan. , ; _works_: ford, ix, - . [ ] troup to king, july , ; king, ii, . [ ] king to hamilton, london, july , ; _ib._, . [ ] smith to wolcott, lisbon, aug. , postscript aug. , ; gibbs, ii, . [ ] king to troup, july , ; king, ii, . [ ] king to pickering, july , ; _ib._, . [ ] murray to j. q. adams, june , ; _letters_: ford, . [ ] troup to king, july , ; king, ii, . [ ] sedgwick to king, july , ; _ib._, . [ ] cabot to king, july , ; _ib._, . [ ] higginson to wolcott, sept. , ; gibbs, ii, . [ ] king to hamilton, london, july , ; king, ii, . [ ] thomas pinckney to king, july , ; king, ii, . [ ] pickering to king, sept. , , quoting pinckney; _ib._, . italics are pinckney's. [ ] troup to king, oct. , ; _ib._, - . [ ] washington to pickering, oct. , ; _writings_: ford, xiv, . [ ] marshall to pickering, aug. , ; pickering mss., mass. hist. soc. [ ] beaumarchais. [ ] pickering to marshall, sept. , ; pickering mss., mass. hist. soc. [ ] marshall to secretary of state, sept. , ; _ib._ [ ] pickering to marshall, oct. , ; _ib._ [ ] cabot to king, april , ; king, iii, . [ ] pickering to marshall, nov. , ; pickering mss. [ ] marshall to pickering, nov. , ; _ib._ [ ] see next chapter. [ ] marshall to pickering, oct. , ; pickering mss., mass. hist. soc. [ ] marshall to pickering, oct. , ; _ib._, mass. hist. soc., xxiii, . [ ] jefferson to pendleton, jan. , ; _works_: ford, ix, - . [ ] marshall to pickering, november , ; pickering mss., mass. hist. soc. [ ] marshall to secretary of state, feb. , ; _ib._ [ ] marshall's fourth child, born january , , during marshall's absence in france. [ ] marshall to his wife, richmond, aug. , ; ms. mrs. marshall remained in winchester, where her husband had hurried to see her after leaving philadelphia. her nervous malady had grown much worse during marshall's absence. mrs. carrington had been "more than usual occupied with my poor sister marshall ... who fell into a deep melancholy. her husband, who might by his usual tenderness (had he been here) have dissipated this frightful gloom, was long detained in france.... the malady increased." (mrs. carrington to miss c[airns], ; carrington mss.) [ ] marshall to pickering, august , ; pickering mss., mass. hist. soc., xxiii, . [ ] pickering to marshall, sept. , ; _ib._ [ ] archives, state department. thirty-five hundred dollars was placed at marshall's disposal when he sailed for france, five hundred dollars in specie and the remainder by letter of credit on governments and european bankers. (marshall to secretary of state, july , ; pickering mss. also archives, state department.) he drew two thousand dollars more when he arrived at philadelphia on his return (june ; _ib._), and $ , . on oct. (_ib._). [ ] the "anas"; _works_: ford, i, . chapter x candidate for congress of the three envoys, the conduct of general marshall alone has been entirely satisfactory. (adams.) in heart and sentiment, as well as by birth and interest, i am an american. we should make no political connection with any nation on earth. (marshall to constituents.) tell marshall i love him because he felt and acted as a republican and an american. (patrick henry.) in the congressional campaign of - , the federalists of the richmond district were without a strong candidate. the one they had put up lacked that personal popularity which then counted for as much in political contests as the issues involved. upon marshall's return from france and his enthusiastic reception, ending with the richmond demonstration, the federalist managers pressed marshall to take the place of the candidate then running, who, indeed, was anxious to withdraw in his favor. but the returned envoy refused, urged the federalist then standing to continue his candidacy, and pledged that he would do all in his power to secure his election. finally washington asked marshall to come to see him. "i received an invitation from general washington," writes marshall in his account of this important event, "to accompany his nephew ... on a visit to mount vernon."[ ] when bushrod washington wrote that marshall accepted the invitation, the general was extremely gratified. "i learnt with much pleasure ... of general marshall's intention to make me a visit," he writes his nephew. "i wish it of all things; and it is from the ardent desire i have to see him that i have not delayed a moment to express it.... the crisis is most important.... the temper of the people in this state ... is so violent and outrageous that i wish to converse with general marshall and yourself on the elections which must soon come."[ ] washington says that when his visitors arrive the matter of the fictitious langhorne letter will also be taken up "and we will let general marshall into the whole business and advise with him thereon."[ ] to mount vernon, therefore, marshall and his companion journeyed on horseback. for convenience in traveling, they had put their clothing in the same pair of saddle-bags. they arrived in a heavy rain and were "drenched to the skin." unlocking the saddle-bags, the first article they took out was a black bottle of whiskey. with great hilarity each charged this to be the property of the other. then came a thick twist of tobacco, some corn bread, and finally the worn apparel of wagoners; at some tavern on the way their saddle-bags had become exchanged for those of drivers. the rough clothes were grotesque misfits; and when, clad in these, his guests presented themselves, washington, roaring with laughter, expressed his sympathy for the wagoners when they, in turn, discovered the exchange they had made with the lawyers.[ ] in such fashion began the conference that ended in john marshall's candidacy for congress in the vital campaign of - . this was the first time, so far as is known, that marshall had visited washington at his potomac home. no other guest except washington's nephew seems to have been present at this conference, so decisive of marshall's future. the time was september, , and the conversations were held on the broad piazza,[ ] looking out upon the river, with the new capitol almost within sight. there, for "four or five days," his old commander used all his influence to induce marshall to become the federalist candidate. "general washington urged the importance of the crisis," writes marshall in describing the circumstance; "every man," insisted washington, "who could contribute to the success of sound opinions was required by the most sacred duty to offer his services to the public." marshall doubted his "ability to do any good. i told him that i had made large pecuniary engagements which required close attention to my profession and which would distress me should the emoluments derived from it be abandoned." marshall told of his promise to the federalist candidate who was then making his campaign for election. washington declared that this candidate still would withdraw in marshall's favor; but marshall remained unshaken. finally washington gave his own conduct as an example. marshall thus describes the final appeal which his old leader made to him: "he had withdrawn from office with a declaration of his determination never again, under any circumstances, to enter public life. no man could be more sincere in making that declaration, nor could any man feel stronger motives for adhering to it. no man could make a stronger sacrifice than he did in breaking a resolution, thus publicly made, and which he had believed to be unalterable. yet i saw him," continues marshall, "in opposition to his public declaration, in opposition to his private feelings, consenting, under a sense of duty, to surrender the sweets of retirement, and again to enter the most arduous and perilous station which an individual could fill. my resolution yielded to this representation."[ ] there is a tradition that, at one point in the conference, marshall, becoming offended by washington's insistence, which, runs the story, took the form of a peremptory and angrily expressed command, determined to leave so early in the morning that his host would have no opportunity to press the matter further; but, washington noting marshall's irritation and anticipating his purpose, was on the piazza when his departing guest appeared at dawn, and there made the final appeal which won marshall's reluctant consent. marshall felt that he was making a heavy personal sacrifice; it meant to him the possible loss of the fairfax estate. as we have seen, he had just declined appointment to the supreme bench[ ] for this very reason, and this place later was given to bushrod washington, largely on marshall's advice.[ ] adams had been reluctant to give marshall up as one of the associate justices of the supreme court; "general marshall or bushrod washington will succeed judge wilson," wrote the president to his secretary of state[ ] nearly three months after the first tender of the place to marshall in philadelphia. later on the president again returned to marshall. "i still think that general marshall ought to be preferred," he wrote. "of the three envoys, the conduct of marshall alone has been entirely satisfactory, and ought to be marked by the most decided approbation of the public. he has raised the american people in their own esteem, and, if the influence of truth and justice, reason and argument is not lost in europe, he has raised the consideration of the united states in that quarter of the world.... if mr. marshall should decline, i should next think of mr. [bushrod] washington."[ ] washington's appeal to marshall's patriotism and sense of duty, however, outbalanced the weighty financial reasons which decided him against becoming an associate justice of the supreme court. thus, against his desire, he found himself once more in the hurly-burly of partisan politics. but this time the fight which he was forced to lead was to be desperate, indeed. the moment marshall announced his candidacy he became the center of republican attack in virginia. the virulence of the campaign against him was so great that it has become a tradition; and while scarcely any of the personal assaults, which appeared in print, are extant, they are known to have been ruthless, and utterly unrestrained both as to the charges made and the language used in making them. in his scurrilous review of adams's administration, which adams properly denounced as "a mass of lyes from the first page to the last,"[ ] john wood repeats the substance of some of the attacks which, undoubtedly, were launched against marshall in this bitter political conflict. "john marshall," says wood, "was an improper character in several respects; his principles of aristocracy were well known. talleyrand, when in america, knew that this man was regarded as a royalist and not as a republican, and that he was abhorred by most honest characters."[ ] the abuse must have been very harsh and unjust; for marshall, who seldom gave way to resentment, complained to pickering with uncharacteristic temper. "the whole malignancy of anti-federalism," he writes, "not only in the district, where it unfortunately is but too abundant, but throughout the state, has become uncommonly active and considers itself as peculiarly interested in the reëlection of the old member [clopton]. "the jacobin presses, which abound with us and only circulate within the state, teem with publications of which the object is to poison still further the public opinion and which are level'd particularly at me. anything written by me on the subject of french affairs wou'd be ascrib'd to me, whether it appear'd with or without my signature and wou'd whet and sharpen up the sting of every abusive scribbler who had vanity enough to think himself a writer because he cou'd bestow personal abuse and cou'd say things as malignant as they are ill founded."[ ] the publication of the american envoys' dispatches from france, which had put new life into the federalist party, had also armed that decaying organization with enough strength to enact the most imprudent measures that its infatuated leaders ever devised. during june and july, , they had succeeded in driving through congress the famous alien and sedition laws.[ ] the alien act authorized the president to order out of the country all aliens whom he thought "dangerous" or "suspected" of any "treasonable or secret machination against the government" on pain of imprisonment not to exceed three years and of being forever afterwards incapacitated from becoming citizens of the united states. but if the alien could prove to the satisfaction of the president that he was not dangerous, a presidential "license" might be granted, permitting the alien to remain in the united states as long as the president saw fit and in such place as he might designate. if any expelled alien returned without permission he was to be imprisoned as long as the president thought "the public safety may require." the sedition act provided penalties for the crime of unlawful combination and conspiracy against the government;[ ] a fine not exceeding two thousand dollars and imprisonment not exceeding two years for any person who should write, print, publish, or speak anything "false, scandalous and malicious" against the government, either house of congress, or the president "with intent to defame" the government, congress, or the president, or "to bring them or either of them into contempt or disrepute; or to excite against them or either or any of them the hatred of the good people of the united states, or to stir up sedition within the united states." when jefferson first heard of this proposed stupid legislation, he did not object to it, even in his intimate letters to his lieutenant madison.[ ] later, however, he became the most ferocious of its assailants. hamilton, on the other hand, saw the danger in the sedition bill the moment a copy reached him: "there are provisions in this bill ... highly exceptionable," he wrote. "i hope sincerely the thing may not be hurried through. let us not establish a tyranny. energy is a very different thing from violence."[ ] when madison got the first inkling of the alien bill, he wrote to jefferson that it "is a monster that must forever disgrace its parents."[ ] as soon as the country learned what the alien and sedition laws contained, the reaction against the federalist party began. in vain did the federalists plead to the people, as they had urged in the debate in congress, that these laws were justified by events; in vain did they point out the presence in america of large numbers of foreigners who were active and bitter against the american government; in vain did they read to citizens the abuse published in newspapers against the administration and cite the fact that the editors of these libelous sheets were aliens.[ ] the popular heart and instinct were against these crowning blunders of federalism. although the patriotic wave started by marshall's return and the x. y. z. disclosures was still running strong, a more powerful counter-current was rising. "liberty of the press," "freedom of speech," "trial by jury" at once became the watchwords and war-cries of republicanism. on the hustings, in the newspapers, at the taverns, the alien and sedition laws were denounced as unconstitutional--they were null and void--no man, much less any state, should obey or respect them. the alien law, said its opponents, merged the judicial and the executive departments, which the constitution guaranteed should be separate and distinct; the sedition act denied freedom of speech, with which the constitution expressly forbade congress to interfere; both struck at the very heart of liberty--so went the republican argument and appeal.[ ] in addition to their solid objections, the republicans made delirious prophecies. the alien and sedition laws were, they asserted, the beginning of monarchy, the foundation of absolutism. the fervid jefferson indulged, to his heart's content, in these grotesque predictions: "the alien & sedition laws are working hard," declared the great republican. indeed, he thought them only "an experiment on the american mind to see how far it will bear an avowed violation of the constitution. if this goes down, we shall immediately see attempted another act of congress declaring that the president shall continue in office during life, reserving to another occasion the transfer of the succession to his heirs, and the establishment of the senate for life.... that these things are in contemplation, i have no doubt; nor can i be confident of their failure, after the dupery of which our countrymen have shewn themselves susceptible."[ ] washington was almost as extravagant on the other side. when an opponent of the alien and sedition acts asked him for his opinion of them, he advised his questioner to read the opposing arguments "and consider to what lengths a certain description of men in our country have already driven and seem resolved further to drive matters" and then decide whether these laws are not necessary, against those "who acknowledge no allegiance to this country, and in many instances are sent among us ... for the express purpose of poisoning the minds of our people,--and to sow dissensions among them, in order to alienate their affections from the government of their choice, thereby endeavoring to dissolve the union."[ ] washington thought that the ferocious republican attack on the alien and sedition laws was but a cunning maneuver of politicians, and this, indeed, for the moment at least, seems to have been the case. "the alien and sedition laws are now the desiderata of the opposition.... but any thing else would have done,--and something there will always be, for them to torture; and to disturb the public mind with their unfounded and ill favored forebodings" was his pessimistic judgment.[ ] he sent "to general marshall judge addison's charge to the grand juries of the county courts of the fifth circuit of the state of pennsylvania.... this charge is on the liberty of speech and of the press and is a justification of the sedition and alien laws. but," wrote washington, "i do not believe that ... it ... or ... any other writing will produce the least change in the conduct of the leaders of the opposition to the measures of the general government. they have points to carry from which no reasoning, no consistency of conduct, no absurdity can divert them. if, however, such writings should produce conviction in the mind of those who have hitherto placed faith in their assertions, it will be a fortunate event for this country."[ ] marshall had spoken in the same vein soon after his arrival at richmond. "the people ... are pretty right as it respects france," he reports to the secretary of state. the republican criticisms of the x. y. z. mission "make so little impression that i believe france will be given up and the attack upon the government will be supported by the alien and sedition laws. i am extremely sorry to observe that here they are more successful and that these two laws, especially the sedition bill, are viewed by a great many well meaning men, as unwarranted by the constitution. "i am entirely persuaded that with many the hate of government of our country is implacable and that if these bills did not exist the same clamor would be made by them on some other account, but," truthfully and judicially writes marshall, "there are also many who are guided by very different motives, and who tho' less noisy in their complaints are seriously uneasy on this subject."[ ] the republicans pressed marshall particularly hard on the alien and sedition laws, but he found a way to answer. within a few days after he had become the federalist candidate, an anonymous writer, signing himself "freeholder," published in the richmond newspapers an open letter to marshall asking him whether he was for the constitution; whether the welfare of america depended on a foreign alliance; whether a closer connection with great britain was desirable; whether the administration's conduct toward france was wise; and, above all, whether marshall was "an advocate of the alien and sedition bills or in the event of your election will you use your influence to obtain a repeal of these laws?" in printing marshall's answers to "freeholder," the "times and virginia advertiser" of alexandria remarked: "mr. john marshall has offered as a candidate for a representative in the next congress. he has already begun his electioneering campaign. the following are answers to some queries proposed to him. whether the queries were propounded with a view of discovering his real sentiments, or whether they were published by one of his friends to serve electioneering purposes, is immaterial:--the principles mr. marshall professes to possess are such as influence the conduct of every real american."[ ] a week later marshall published his answers. "every citizen," says he, "has a right to know the political sentiments of a candidate"; and besides, the candidate wishes everybody to know his "real principles" and not "attribute" to him "those with which active calumny has ... aspersed" him. in this spirit marshall answers that "in heart and sentiment, as well as by birth and interest," he is "an american; attached to the ... constitution ... which will preserve us if we support it firmly." he is, he asserts, against any alliance, "offensive or defensive," with great britain or "any closer connection with that nation than already exists.... no man in existence is more decidedly opposed to such an alliance or more fully convinced of the evils that would result from it." marshall declares that he is for american neutrality in foreign wars; and cites his memorial to talleyrand as stating his views on this subject. "the whole of my politics respecting foreign nations, are reducible to this single position: ... commercial intercourse with all, but political ties with none ... buy as cheap and sell as dear as possible ... never connect ourselves politically with any nation whatever." he disclaims the right to speak for the administration, but believes it to have the same principles. if france, while at war with great britain, should also make war on america, "it would be madness and folly" not to secure the "aid of the british fleets to prevent our being invaded"; but, not even for that, would he "make such a sacrifice as ... we should make by forming a permanent political connection with ... any nation on earth." marshall says that he believes the administration's policy as regards france to have been correct, and necessary to the maintenance "of the neutrality and independence of our country." peace with france was not possible "without sacrificing those great objects," for "the primary object of france is ... dominion over others." the french accomplish this purpose by "immense armies on their part and divisions among ... those whom they wish to subdue." marshall declares that he is "not an advocate of the alien and sedition bills," and, had he been in congress, "certainly would have opposed them," although he does not "think them fraught with all those mischiefs ascribed to them." but he thinks them "useless ... calculated to create unnecessary discontents and jealousies"; and that, too, "at a time when our very existence as a nation may depend on our union." he believes that those detested laws "would never have been enacted" if they had been opposed on these principles by a man not suspected of intending to destroy the government or being hostile to it." the effort to repeal them "will be made before he can become a member of congress"; if it fails and is renewed after he takes his seat, he "will obey the voice of his constituents." he thinks, however, it will be unwise to revive the alien and sedition acts which are, by their own terms, about to expire; and marshall pledges that he will "indisputably oppose their revival."[ ] upon marshall as their favorite candidate for congress, the eyes of the federalist leaders in other states were focused. they were particularly anxious and uncertain as to his stand on the alien and sedition laws; for he seems to have privately expressed, while in philadelphia on his return from france, a mild disapproval of the wisdom and political expediency of this absurd legislation. his answers to "freeholder" were therefore published everywhere. when the new england federalists read them in the "columbian centinel" of saturday, october , most of them were as hot against marshall as were the rabid virginia republicans. ames whetted his rhetoric to razor edge and slashed without mercy. he describes republican dismay when marshall's dispatches were published: "the wretches [republicans] looked round, like milton's devils when first recovering from the stunning force of their fall from heaven, to see what new ground they could take." they chose, says ames, "the alien and sedition bills, and the land tax" with which to arouse discontent and revive their party. so "the implacable foes of the constitution--foes before it was made, while it was making, and since--became full of tender fears lest it should be violated by the alien and sedition laws." the federalists, complained ames, "are forever hazarding the cause by heedless and rash concessions. john marshall, with all his honors in blossom and bearing fruit, answers some newspaper queries unfavorably to these laws.... no correct man,--no incorrect man, even,--whose affections and feelings are wedded to the government, would give his name to the base opposers of the law.... this he has done. excuses may palliate,--future zeal in the cause may partially atone,--but his character is done for.... like a man who in battle receives an ounce ball in his body--it may heal, it lies too deep to be extracted.... there let it lie. false federalists, or such as act wrong from false fears, should be dealt hardly by, if i were jupiter tonans.... the moderates [like marshall] are the meanest of cowards, the falsest of hypocrites."[ ] theodore sedgwick declared that marshall's "mysterious & unpardonable" conduct had aided "french villainy" and that he had "degraded himself by a mean & paltry electioneering trick."[ ] at first, the republicans praised marshall's stand; and this made the new england federalists frantic. cabot, alone, defended marshall in the press, although not over his own name and only as a matter of party tactics. he procured some one to write to the "columbian centinel" under the name of "a yankee freeholder." this contributor tried to explain away marshall's offense. "general marshall is a citizen too eminent for his talents, his virtues and his public services, to merit so severe a punishment as to [receive the] applause of disorganizers [republicans]." he should be saved from the "admiration of the _seditious_"--that much was due to marshall's "spirit, firmness and eloquence" in the contest with "the despots of _france_." as "drowning men would catch at straws" so "the eagle-eyed and disheartened sons of faction" had "with forlorn and desperate ... avidity ... seized on" marshall's answers to "freeholder." and no wonder; for "even _good men_ have stood appalled, at observing a man whom they so highly venerate soliciting votes at the expense of principles which they deem sacred and inviolable." "yankee freeholder" therefore proposes "to vindicate general marshall." marshall was the only richmond federalist who could be elected; he "patriotically" had consented to run only because of "the situation and danger of his country at this moment." therefore "it was absolutely necessary to take all the ordinary steps" to succeed. this "may appear extraordinary ... to those who are only acquainted with the delicacy of _new england_ elections where _personal_ solicitation is the death-warrant to success"; but it was "not only pardonable but necessary ... in the southern states." "yankee freeholder" reminded his readers that "calumny had assailed general marshall, in common with other men of merit." virginia newspapers had "slandered him"; politicians had called him "_aristocrat_, _tory_, and _british agent_. all this abuse ... would infallibly have rendered him popular in _new-england_"--but not so in "_virginia_," where there were "too many ignorant, ill-informed and inflamed minds." therefore, "it became necessary that general marshall should explicitly exhibit his political creed." after all, his answers to "freeholder" were not so bad--he did not assail the constitutionality of the alien and sedition laws. "if gen. marshall thought them unconstitutional or dangerous to liberty, would he" be content merely to say they were unnecessary? "would a man of general marshall's force of reasoning, simply denominate _laws useless_," if he thought them unconstitutional? "no--the idea is too absurd to be indulged.... time and general marshall's conduct will hereafter prove that i am not mistaken in my opinion of his sentiments."[ ] cabot's strategy had little effect on new england, which appeared to dislike virginia with a curious intolerance. the essex county politician, nevertheless, stood by his guns; and six months later thus reassures king: "i am ready to join you as well as ames in reprobating the publication of marshall's sentiments on the sedition & alien acts, but i still _adhere_ to my first opinion that marshall ought not to be attacked in the newspapers, nor too severely condemned anywhere, because marshall has not yet learned his whole lesson, but has a mind & disposition which can hardly fail to make him presently an accomplished (political) scholar & a very useful man. "some allowance too should be made," contends cabot, "for the influence of the atmosphere of virginia which doubtless makes every one who breathes it visionary &, upon the subject of free govt., incredibly credulous; but it is certain that marshall at phila. would become a most powerful auxiliary to the cause of order & good govt., & _therefore_ we ought not to diminish his fame which wou'd ultimately be a loss to ourselves."[ ] the experienced practical politician, sedgwick, correctly judged that "freeholder's" questions to marshall and marshall's answers were an "electioneering trick." but pickering stoutly defended marshall upon this charge. "i have not met with one good federalist, who does not regret his answers to the freeholder; but i am sorry that it should be imagined to be an 'electioneering trick.'... general marshall is incapable of doing a dishonorable act." only marshall's patriotism had induced him to accept the french mission, said the secretary of state.[ ] nothing but "the urging of friends ... overcame his reluctance to come to congress.... a man of untainted honor," had informed pickering that "marshall is a _sterling fellow_."[ ] the federalists' complaints of him continued to be so strong and widespread, however, that they even reached our legations in europe: "i too have lamented that john marshall, after such a mission particularly, should lend himself thus against a law which the french jacobinism in the united states had forced government to adopt. m[arshall] _before_, was not, that we ever heard of, one of us."[ ] toward the end of october marshall gives his private opinion of the virginia republicans and their real motives, and foretells the virginia resolutions. "the real french party of this country again begins to show itself," he writes. "there are very many indeed in this part of virginia who speak of our own government as an enemy infinitely more formidable and infinitely more to be guarded against than the french directory. immense efforts are made to induce the legislature of the state which will meet in dec'r to take some violent measure which may be attended with serious consequences. i am not sure that these efforts will entirely fail. it requires to be in this part of virginia to know the degree of irritation which has been excited and the probable extent of the views of those who excite it."[ ] the most decent of the attacks on marshall were contained in a series of open letters first published in the "aurora"[ ] and signed "curtius." "you have long been regarded," writes curtius, "as the leader of that party in this state" which has tried "by audacious efforts to erect a monarchy or aristocracy upon the ruins of our free constitution. the energy of your mind and the violence of your zeal have exalted you to this bad eminence." if you had "employed your talents in defense of the people ... your history would have been read in a nation's eyes." "the publication of your dispatches and the happy exercise of diplomatic skill has produced a momentary delusion and infatuation in which an opposition to the administration is confounded with hostility to the government and treason to the country.... the execrations and yells against french cruelty and french ambition, are incessantly kept up by the hirelings of great britain and the enemies of liberty." but, he cries, "the vengeance of an oppressed and insulted people is almost as terrible as the wrath of heaven"; and, like a true partisan, curtius predicts that this is about to fall on marshall. why, he asks, is marshall so vague on the constitutionality of the alien and sedition laws?[ ] "notwithstanding the magnitude ... of your talents, you are ridiculously awkward in the arts of dissimulation and hypocrisy.... it is painful to attack ... a man whose talents are splendid and whose private character is amiable"; but "sacred duties ... to the cause of truth and liberty require it." alas for marshall! "you have lost forever," curtius assures him, "the affection of a nation and the applause of a world. in vain will you pursue the thorny and rugged path that leads to fame."[ ] but while "monarchist," "aristocrat," "british agent," "enemy of free speech," "destroyer of trial by jury" were among the more moderate epithets that filled the air from republican lips; and "anarchist," "frenchman," "traitor," "foe of law and order," "hater of government" were the milder of the counter-blasts from the federalists, all this was too general, scattered, and ineffective to suit the leader of the republican party. jefferson saw that the growing popular rage against the alien and sedition laws must be gathered into one or two concentrated thunderbolts and thus hurled at the heads of the already quaking federalists. how to do it was the question to which jefferson searched for an answer. it came from the bravest, most consistent, most unselfish, as well as one of the very ablest of republicans, john taylor "of caroline," virginia. in a letter to jefferson concerning the alien and sedition laws, this eminent and disinterested radical suggested that "_the right of the state governments to expound the constitution_ might possibly be made the basis of a movement towards its amendment. if this is insufficient the people in state conventions are incontrovertibly the contracting parties and, possessing the infringing rights, may proceed by orderly steps to attain the object."[ ] so was planted in jefferson's mind the philosophy of secession. in that fertile and receptive soil it grew with magic rapidity and bore fatal fruit. within two months after he received taylor's letter, jefferson wrote the historic resolutions which produced a situation that, a few years afterward, called forth marshall's first great constitutional opinion, and, not many decades later, gave the battle-cry that rallied heroic thousands to armed resistance to the national government.[ ] on october , , nicholas writes jefferson that he has delivered to "mr. john breckenridge a copy of the resolutions that you sent me."[ ] they were passed by the legislature of kentucky on november , ; and the tremendous conflict between nationality and states' rights, which for so long had been preparing, at last was formally begun.[ ] jefferson's "kentucky resolutions" declared that parts of the alien and sedition laws were "altogether void and of no effect."[ ] thus a state asserted the "right" of any or all states to annul and overthrow a national law. as soon as kentucky had acted, jefferson thus writes madison: "i enclose you a copy of the draught of the kentucky resolves. i think we should distinctly affirm all the important principles they contain so as to hold that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent."[ ] madison accordingly drew the resolutions adopted by the legislature of virginia, december , . while declaring the alien and sedition laws unconstitutional, the virginia resolutions merely appealed to the other states to "co-operate with this state in maintaining unimpaired the authority, rights, and liberties reserved to the states respectively or to the people."[ ] the legislature promptly adopted them and would gladly have approved far stronger ones. "the leaders ... were determined upon the overthrow of the general government; and if no other measure would effect it, that they would risk it upon the chance of war.... some of them talked of 'seceding from the union,'"[ ] iredell writes his wife: "the general assembly of virginia are pursuing steps which directly lead to a civil war; but there is a respectable minority struggling in defense of the general government, and the government itself is fully prepared for anything they can do, resolved, if necessary, to meet force with force."[ ] marshall declared that he "never saw such intemperance as existed in the v[irginia] assembly."[ ] following their defiant adoption of madison's resolutions, the republican majority of the legislature issued a campaign pamphlet, also written by madison,[ ] under the form of an address to the people. the "guardians of state sovereignty would be perfidious if they did not warn" the people "of encroachments which ... may" result in "usurped power"; the state governments would be "precipitated into impotency and contempt" in case they yielded to such national laws as the alien and sedition acts; if like "infractions of the federal compact" were repeated "until the people arose ... in the majesty of their strength," it was certain that "the way for a revolution would be prepared." the federalist pleas "to disregard usurpation until foreign danger shall have passed" was "an artifice which may be forever used," because those who wished national power extended "can ever create national embarrassments to soothe the people to sleep whilst that power is swelling, silently, secretly and fatally." such was the sedition act which "commits the sacrilege of arresting reason; ... punishes without trial; ... bestows on the president despotic powers ... which was never expected by the early friends of the constitution." but now "federal authority is deduced by implication" by which "the states will be stript of every right reserved." such "tremendous pretensions ... inflict a death wound on the sovereignty of the states." thus wrote the same madison who had declared that nothing short of a veto by the national government on "any and every act of the states" would suffice. there was, said madison's campaign document, no "specified power" in the national government "embracing a right against freedom of the press"--that was a "constitutional" prerogative of the states. "calumny" could be redressed in the state courts; but "usurpation can only be controuled by the act of society [revolution]." here madison quotes _verbatim_ and in italics from marshall's second letter to talleyrand in defense of the liberty of the press, without, however, giving marshall credit for the language or argument.[ ] madison's argument is characteristically clear and compact, but abounds in striking phrases that suggest jefferson.[ ] this "address" of the virginia legislature was aimed primarily at marshall, who was by far the most important federalist candidate for congress in the entire state. it was circulated at public expense and marshall's friends could not possibly get his views before the people so authoritatively or so widely. but they did their best, for it was plain that madison's jeffersonized appeal, so uncharacteristic of that former nationalist, must be answered. marshall wrote the reply[ ] of the minority of the legislature, who could not "remain silent under the unprecedented" attack of madison. "reluctantly," then, they "presented the present crisis plainly before" the people. "for ... national independence ... the people of united america" changed a government by the british king for that of the constitution. "the will of the majority produced, ratified, and conducts" this constitutional government. it was not perfect, of course; but "the best rule for freemen ... in the opinion of our ancestors, was ... that ... of obedience to laws enacted by a majority of" the people's representatives. two other principles "promised immortality" to this fundamental idea: power of amendment and frequency of elections. "under a constitution thus formed, the prosperity of america" had become "great and unexampled." the people "bemoaned foreign war" when it "broke out"; but "they did not possess even a remote influence in its termination." the true american policy, therefore, was in the "avoiding of the existing carnage and the continuance of our existing happiness." it was for this reason that washington, after considering everything, had proclaimed american neutrality. yet genêt had "appealed" to the people "with acrimony" against the government. this was resented "for a while only" and "the fire was rekindled as occasion afforded fuel." also, great britain's "unjustifiable conduct ... rekindled our ardor for hostility and revenge." but washington, averse to war, "made his last effort to avert its miseries." so came the jay treaty by which "peace was preserved with honor." marshall then reviews the outbursts against the jay treaty and their subsidence. france "taught by the bickerings of ourselves ... reëchoed american reproaches with french views and french objects"; as a result "our commerce became a prey to french cruisers; our citizens were captured" and british outrages were repeated by the french, our "former friend ... thereby committing suicide on our national and individual happiness." emulating washington, adams had twice striven for "honorable" adjustment. this was met by "an increase of insolence and affront." thus america had "to choose between submission ... and ... independence. what american," asks marshall, "could hesitate in the option?" and, "the choice being made, self-preservation commanded preparations for self-defense....--the fleet, ... an army, a provision for the removal of dangerous aliens and the punishment of seditious citizens." yet such measures "are charged with the atrocious design of creating a monarchy ... and violating the constitution." marshall argues that military preparation is our only security. "upon so solemn an occasion what curses would be adequate," asks marshall, "to the supineness of our government, if militia were the only resort for safety, against the invasion of a veteran army, flushed with repeated victories, strong in the skill of its officers, and led by distinguished officers?" he then continues with the familiar arguments for military equipment. then comes his attack on the virginia resolutions. had the criticisms of the alien and sedition laws "been confined to ordinary peaceable and constitutional efforts to repeal them," no objection would have been made to such a course; but when "general hostility to our government" and "proceedings which may sap the foundations of our union" are resorted to, "duty" requires this appeal to the people. marshall next defends the constitutionality of these acts. "powers necessary for the attainment of all objects which are general in their nature, which interest all america" and "can only be obtained by the coöperation of the whole ... would be naturally vested in the government of the whole." it is obvious, he argues, that states must attend to local subjects and the nation to general affairs. the power to protect "the nation from the intrigues and conspiracies of dangerous aliens; ... to secure the union from their wicked machinations, ... which is essential to the common good," belongs to the national government in the hands of which "is the force of the nation and the general power of protection from hostilities of every kind." marshall then makes an extended argument in support of his nationalist theory. occasionally he employs almost the exact language which, years afterwards, appears in those constitutional opinions from the supreme bench that have given him his lasting fame. the doctrine of implied powers is expounded with all of his peculiar force and clearness, but with some overabundance of verbiage. in no writing or spoken word, before he became chief justice of the united states, did marshall so extensively state his constitutional views as in this unknown paper.[ ] the house of delegates, by a vote of against ,[ ] refused to publish the address of the minority along with that of the majority. thereupon the federalists printed and circulated it as a campaign document. it was so admired by the supporters of the administration in philadelphia that, according to the untrustworthy callender, ten thousand copies were printed in the capital and widely distributed.[ ] marshall's authorship of this paper was not popularly known; and it produced little effect. its tedious length, lighted only by occasional flashes of eloquence, invited republican ridicule and derision. it contained, said callender, "such quantities of words ... that you turn absolutely tired"; it abounded in "barren tautology"; some sentences were nothing more than mere "assemblages of syllables"; and "the hypocritical canting that so strongly marks it corresponds very well with the dispatches of x. y. and z."[ ] marshall's careful but over-elaborate paper was not, therefore, generally read. but the leading federalists throughout the country were greatly pleased. the address was, said sedgwick, "a masterly performance for which we are indebted to the pen of general marshall, who has, by it, in some measure atoned for his pitiful electioneering epistle."[ ] when murray, at the hague, read the address, he concluded that marshall was its author: "he may have been weak enough to declare _against_ those laws that _might_ be against the _policy_ or necessity, etc., etc., etc., yet sustain their constitutionality.... i _hope_ j. marshall did write the address."[ ] the republican appeal, unlike that of marshall, was brief, simple, and replete with glowing catchwords that warmed the popular heart and fell easily from the lips of the multitude. and the republican spirit was running high. the virginia legislature provided for an armory in richmond to resist "encroachments" of the national government.[ ] memorials poured into the national capital.[ ] by february "the tables of congress were loaded with petitions against" the unpopular federalist legislation.[ ] marshall's opinion of the motives of the republican leaders, of the uncertainty of the campaign, of the real purpose of the virginia resolutions, is frankly set forth in his letter to washington acknowledging the receipt of judge addison's charge: "no argument," wrote marshall, "can moderate the leaders of the opposition.... however i may regret the passage of one of the acts complained of [sedition law] i am firmly persuaded that the tempest has not been raised by them. its cause lies much deeper and is not easily to be removed. had they [alien and sedition laws] never been passed, other measures would have been selected. an act operating on the press in any manner, affords to its opposers arguments which so captivate the public ear, which so mislead the public mind that the efforts of reason" are unavailing. marshall tells washington that "the debates were long and animated" upon the virginia resolutions "which were substantiated by a majority of twenty-nine." he says that "sentiments were declared and ... views were developed of a very serious and alarming extent.... there are men who will hold power by any means rather than not hold it; and who would prefer a dissolution of the union to a continuance of an administration not of their own party. they will risk all ills ... rather than permit that happiness which is dispensed by other hands than their own." he is not sure, he says, of being elected; but adds, perhaps sarcastically, that "whatever the issue ... may be i shall neither reproach myself, nor those at whose instance i have become a candidate, for the step i have taken. the exertions against me by" men in virginia "and even from other states" are more "active and malignant than personal considerations would excite. if i fail," concludes marshall, "i shall regret the failure more" because it will show "a temper hostile to our government ... than of" his own "personal mortification."[ ] the federalists were convinced that these extreme republican tactics were the beginning of a serious effort to destroy the national government. "the late attempt of virginia and kentucky," wrote hamilton, "to unite the state legislatures in a direct resistance to certain laws of the union can be considered in no other light than as an attempt to change the government"; and he notes the "hostile declarations" of the virginia legislature; its "actual preparation of the means of supporting them by force"; its "measures to put their militia on a more efficient footing"; its "preparing considerable arsenals and magazines"; and its "laying new taxes on its citizens" for these purposes.[ ] to sedgwick, hamilton wrote of the "tendency of the doctrine advanced by virginia and kentucky to destroy the constitution of the united states," and urged that the whole subject be referred to a special committee of congress which should deal with the virginia and kentucky resolutions and justify the laws at which they were aimed. "no pains or expense," he insisted, "should be spared to disseminate this report.... a little pamphlet containing it should find its way into every house in virginia."[ ] thus the congressional campaign of - drew to a close. marshall neglected none of those personal and familiar campaign devices which the american electorate of that time loved so well. his enemies declared that he carried these to the extreme; at a rally in hanover county he "threw billets into the bonfires and danced around them with his constituents";[ ] he assured the voters that "his sentiments were the same as those of mr. clopton [the republican candidate]"; he "spent several thousands of dollars upon barbecues."[ ] these charges of the besotted callender,[ ] written from his cell in the jail at richmond, are, of course, entirely untrue, except the story of dancing about the bonfire. marshall's answers to "freeholder" dispose of the second; his pressing need of money for the fairfax purchase shows that he could have afforded no money for campaign purposes; and, indeed, this charge was so preposterous that even the reckless callender concludes it to be unworthy of belief. from the desperate nature of the struggle and the temper and political habit of the times, one might expect far harder things to have been said. indeed, as the violence of the contest mounted to its climax, worse things were charged or intimated by word of mouth than were then put into type. again it is the political hack, john wood, who gives us a hint of the baseness of the slanders that were circulated; he describes a scandal in which marshall and pinckney were alleged to have been involved while in paris, the unhappy fate of a woman, her desperate voyage to america, her persecution and sad ending.[ ] marshall was profoundly disgusted by the methods employed to defeat him. writing to his brother a short time before election day he briefly refers to the republican assaults in stronger language than is to be found in any other letter ever written by him:-- "the fate of my election is extremely uncertain. the means us'd to defeat it are despicable in the extreme and yet they succeed. nothing i believe more debases or pollutes the human mind than faction [party]."[ ] [illustration: part of letter from john marshall to his brother, dated april , (_facsimile_)] the republicans everywhere grew more confident as the day of voting drew near. neutrality, the alien and sedition laws, the expense of the provisional army, the popular fear and hatred of a permanent military force, the high taxes, together with the reckless charges and slanders against the federalists and the perfect discipline exacted of the republicans by jefferson--all were rapidly overcoming the patriotic fervor aroused by the x. y. z. disclosures. "the tide is evidently turning ... from marshall's romance" was the republican commander's conclusion as the end of the campaign approached.[ ] for the first time marshall's personal popularity was insufficient to assure victory. but the animosity of the republicans caused them to make a false move which saved him at the very last. they circulated the report that patrick henry, the archenemy of "aristocrats," was against marshall because the latter was one of this abhorred class. marshall's friend, archibald blair, clerk of the executive council, wrote henry of this republican campaign story. instantly both the fighter and the politician in henry were roused; and the old warrior, from his retirement at red hill, wrote an extraordinary letter, full of affection for marshall and burning with indignation at the republican leaders. the virginia resolutions meant the "dissolution" of the nation, wrote henry; if that was not the purpose of the republicans "they have none and act _ex tempore_." as to france, "her conduct has made it to the interest of the great family of mankind to wish the downfall of her present government." for the french republic threatened to "destroy the great pillars of all government and social life--i mean virtue, morality, and religion," which "alone ... is the armour ... that renders us invincible." also, said henry, "infidelity, in its broad sense, under the name of philosophy, is fast spreading ... under the patronage of french manners and principles." henry makes "these prefatory remarks" to "point out the kind of character amongst our countrymen most estimable in my [his] eyes." the ground thus prepared, henry discharges all his guns against marshall's enemies. "general marshall and his colleagues exhibited the american character as respectable. france, in the period of her most triumphant fortune, beheld them as unappalled. her threats left them as she found them.... "can it be thought that with these sentiments i should utter anything tending to prejudice general marshall's election? very far from it indeed. independently of the high gratification i felt from his public ministry, he ever stood high in my esteem as a private citizen. his temper and disposition were always pleasant, his talents and integrity unquestioned. "these things are sufficient to place that gentleman far above any competitor in the district for congress. but when you add the particular information and insight which he has gained, and is able to communicate to our public councils, it is really astonishing, that even blindness itself should hesitate in the choice.... "tell marshall i love him, because he felt and acted as a republican, as an american. the story of the scotch merchants and old torys voting for him is too stale, childish, and foolish, and is a french _finesse;_ an appeal to prejudice, not reason and good sense.... i really should give him my vote for congress, preferably to any citizen in the state at this juncture, one only excepted [washington]."[ ] henry's letter saved marshall. not only was the congressional district full of henry's political followers, but it contained large numbers of his close personal friends. his letter was passed from hand to hand among these and, by election day, was almost worn out by constant use.[ ] but the federalist newspapers gave henry no credit for turning the tide; according to these partisan sheets it was the "anarchistic" action of the kentucky and virginia legislatures that elected marshall. quoting from a letter of bushrod washington, who had no more political acumen than a turtle, a federalist newspaper declared: "we hear that general marshall's election is placed beyond all doubt. i was firmly convinced that the violent measures of our legislature (which were certainly intended to influence the election) would favor the pretensions of the federal candidates by disclosing the views of the opposite party."[ ] late in april the election was held. a witness of that event in richmond tells of the incidents of the voting which were stirring even for that period of turbulent politics. a long, broad table or bench was placed on the court-house green, and upon it the local magistrates, acting as election judges, took their seats, their clerks before them. by the side of the judges sat the two candidates for congress; and when an elector declared his preference for either, the favored one rose, bowing, and thanked his supporter. nobody but freeholders could then exercise the suffrage in virginia.[ ] any one owning one hundred acres of land or more in any county could vote, and this landowner could declare his choice in every county in which he possessed the necessary real estate. the voter did not cast a printed or written ballot, but merely stated, in the presence of the two candidates, the election officials, and the assembled gathering, the name of the candidate of his preference. there was no specified form for this announcement.[ ] "i vote for john marshall." "thank you, sir," said the lank, easy-mannered federalist candidate. "hurrah for marshall!" shouted the compact band of federalists. "and i vote for clopton," cried another freeholder. "may you live a thousand years, my friend," said marshall's competitor. "three cheers for clopton!" roared the crowd of republican enthusiasts. both republican and federalist leaders had seen to it that nothing was left undone which might bring victory to their respective candidates. the two political parties had been carefully "drilled to move together in a body." each party had a business committee which attended to every practical detail of the election. not a voter was overlooked. "sick men were taken in their beds to the polls; the halt, the lame, and the blind were hunted up and every mode of conveyance was mustered into service." time and again the vote was a tie. no sooner did one freeholder announce his preference for marshall than another gave his suffrage to clopton. "a barrel of whisky with the head knocked in," free for everybody, stood beneath a tree; and "the majority took it straight," runs a narrative of a witness of the scene. so hot became the contest that fist-fights were frequent. during the afternoon, knock-down and drag-out affrays became so general that the county justices had hard work to quell the raging partisans. throughout the day the shouting and huzzaing rose in volume as the whiskey sank in the barrel. at times the uproar was "perfectly deafening; men were shaking fists at each other, rolling up their sleeves, cursing and swearing.... some became wild with agitation." when a tie was broken by a new voter shouting that he was for marshall or for clopton, insults were hurled at his devoted head. "you, sir, ought to have your mouth smashed," cried an enraged republican when thomas rutherford voted for marshall; and smashing of mouths, blacking of eyes, and breaking of heads there were in plenty. "the crowd rolled to and fro like a surging wave."[ ] never before and seldom, if ever, since, in the history of virginia, was any election so fiercely contested. when this "democratic" struggle was over, it was found that marshall had been elected by the slender majority of .[ ] washington was overjoyed at the federalist success. he had ridden ten miles to vote for general lee, who was elected;[ ] but he took a special delight in marshall's victory. he hastened to write his political protégé: "with infinite pleasure i received the news of your election. for the honor of the district i wish the majority had been greater; but let us be content, and hope, as the tide is turning, the current will soon run strong in your favor."[ ] toward the end of the campaign, for the purpose of throwing into the contest washington's personal influence, marshall's enthusiastic friends had published the fact of marshall's refusal to accept the various offices which had been tendered him by washington. they had drawn a long bow, though very slightly, and stated positively that marshall could have been secretary of state.[ ] marshall hastened to apologize:-- "few of the unpleasant occurrences" of the campaign "have given me more real chagrin than this. to make a parade of proffered offices is a vanity which i trust i do not possess; but to boast of one never in my power would argue a littleness of mind at which i ought to blush." marshall tells washington that the person who published the report "never received it directly or indirectly from me." if he had known "that such a publication was designed" he "would certainly have suppressed it." it was inspired "unquestionably ... by a wish to serve me," says marshall, "and by resentment at the various malignant calumnies which have been so profusely bestowed on me."[ ] washington quickly reassured marshall: "i am sorry to find that the publication you allude to should have given you a moment's disquietude. i can assure you it made no impression on my mind, of the tendency apprehended by you."[ ] as soon as all the election returns were in, marshall reported to washington that the defeat of two of the federalist candidates for congress was unexpected and "has reduced us to eight in the legislature of the union"; that the republicans maintained their "majority in the house of delegates," which "means an antifederal senator and governor," and that "the baneful influence of a legislature hostile perhaps to the union--or if not so--to all its measures will be kept up."[ ] marshall's campaign attracted the attention of the whole country, and the news of his success deeply interested both federalists and republicans. pickering, after writing king of the federalist success in new york city, declared that "the other domestic intelligence, still more important, is, that genl. marshall is elected a member of congress for his district."[ ] speaker sedgwick also informed king of marshall's election. "general marshall you know is a member of the house of representatives. his talents, his character and the situation he has been in, will combine to give him an influence, which will be further aided by the scene which he immediately represents. he may and probably will give a tone to the federal politics south of the susquehannah. i well know the respect he entertains for you and for your opinions."[ ] but the federalist leaders were none too sure of their virginia congressional recruit. he was entirely too independent to suit the party organization. his campaign statement on the alien and sedition laws angered and troubled them when it was made; and, now that marshall was elected, his opinion on this, to the federalists, vital subject, his admitted power of mind and character, and his weighty influence over the southern wing of the federalists caused serious apprehension among the party's northern leaders. sedgwick advises king to write marshall on the subject of party regularity. "i have brought this subject to your mind, that you may decide on the propriety of a communication of your sentiments to him, which you may do in season to be useful. should he, which, indeed, i do not expect, conform his political conduct generally, to what seems indicated by his public declaration relative to the alien & sedition acts, it would have been better that his insignificant predecessor should have been reëlected. there never has been an instance where the commencement of a political career was so important as is that of general marshall."[ ] apprehension and uncertainty as to marshall's course in the house was in the minds of even the federalist leaders who were out of the country. the american minister at the hague was as much troubled about marshall as were the federalist politicians at home: "if m[arshall]'s silly declaration on the _inexpediency_ of the sedition law does not entangle him he may be very useful."[ ] but murray was uneasy: "marshall, i fear, comes in on middle ground, and when a man plays the amiable in a body like that [house of representatives] he cannot be counted [on], but he will vote generally right. i was amiable the first session! it cannot last."[ ] jefferson, of course, was much depressed by the federalist congressional victories, which he felt "are extremely to be regretted." he was especially irritated by marshall's election: it "marks a taint in that part of the state which i had not expected." he was venomous toward henry for having helped marshall: "his [henry's] apostacy, must be unaccountable to those who do not know all the recesses of his heart."[ ] a week later, however, jefferson decided that the federalist success did not mean a permanent republican reverse. spoils and corruption, he concluded, were the real cause of the federalist gain. "the virginia congressional elections have astonished every one," he informs tench coxe. "this result has proceeded from accidental combinations of circumstances, & not from an unfavorable change of sentiment.... we are not incorruptible; on the contrary, corruption is making sensible tho' silent progress. offices are as acceptable here as elsewhere, & whenever a man has cast a longing on them, a rottenness begins in his conduct."[ ] jefferson, with settled and burning hatred, now puts his branding-iron on henry: "as to the effect of his name among the people, i have found it crumble like a dried leaf the moment they become satisfied of his apostacy."[ ] during the weeks which immediately followed his election, marshall was busy reporting to washington on the best men to be appointed as officers in the provisional army; and his letters to the commander-in-chief show a wide and careful acquaintance with virginians of military training, and a delicate judgment of their qualities.[ ] by now the hated sedition law was justifying the political hydrophobia which it had excited among the republicans.[ ] all over the country men were being indicted and convicted for wholly justifiable political criticisms,--some of them trivial and even amusing,--as well as for false and slanderous attacks on public officers. president adams himself had begun to urge these prosecutions. he was particularly bitter against the "aurora," the republican organ, which, according to adams, contained an "uninterrupted stream of slander on the american government."[ ] he thought that the editor ought to be expelled from the country.[ ] all this was more fuel to the republican furnace. wicked and outrageous as were some of these prosecutions, they were not so extravagant as the horrors which republican politicians declared that the sedition laws would bring to every fireside. during the summer after his election marshall visited his father in kentucky. thomas marshall was ill, and his son's toilsome journey was solely for the purpose of comforting him; but jefferson could see in it nothing but a political mission. he writes to wilson cary nicholas to prepare an answer to the states that had opposed the kentucky and virginia resolutions; but, says jefferson, "as to the preparing anything [myself] i must decline it, to avoid suspicions (which were pretty strong in some quarters on the last occasion) [the kentucky resolutions].... the visit of the apostle marshall[ ] to kentucky, excite[s] anxiety. however, we doubt not that his poisons will be effectually counter-worked."[ ] jefferson's suspicions were groundless. marshall did not even sound public opinion on the subject. on his return to richmond he writes the secretary of state, who was the most active politician of adams's cabinet, and to whom marshall freely opened his mind on politics, that "a visit to an aged & rever'd father" prevented an earlier answer to a letter from pickering; and, although marshall has much to say, not one word is written of the kentucky and virginia resolutions. he is obsessed with the french question and of the advantage the french "party in america" may secure by the impression that france was not really hostile. "this will enable her [france's] party in america to attack from very advantageous ground the government of the united states."[ ] now came the public circumstance that made the schism in the federalist party an open and remorseless feud. the president's militant declaration, that he would "never send another minister to france without assurances that he will [would] be received, respected, and honored as the representative of a great, free, powerful, and independent people,"[ ] was perfectly attuned to the warlike spirit of the hour. the country rang with approval. the federalist politicians were exultant. thereupon the resourceful talleyrand wrote the secretary of the french legation at the hague to intimate to murray, the american minister, that the french directory would now receive a minister from the united states.[ ] murray hastened the news to adams.[ ] it was a frail assurance, indirect, irregular, unacknowledged to the world; and from men who had insulted us and who would not hesitate to repudiate murray's statement if their purposes so required. yet the president grasped by the forelock this possibility for peace, and, against the emphatic protest of his cabinet, suddenly sent a second commission to try again for that adjustment which marshall and his associates had failed to secure. it was the wisest and most unpopular act of adams's troubled administration. the leading federalist politicians were enraged. indeed, "the whole [federalist] party were prodigiously alarmed."[ ] they thought it a national humiliation. what! said they, kiss the hand that had slapped our face! "the new embassy ... disgusts most men here," reported ames from new england.[ ] cabot confirmed ames's doleful message--"surprise, indignation, grief, & disgust followed each other in swift succession in the breasts of the true friends of our country," he advised king.[ ] the federalist leaders really wanted war with france, most of them as a matter of patriotism; some, undoubtedly, because war would insure party success in the approaching presidential election. upon his return marshall had prophesied formal declaration of hostilities from the republic of france, when news of the dispatches reached europe; and the war federalists were sorely disappointed at the failure of his prediction. "genl. marshall unfortunately held the decided opinion that france would declare war when the dispatches should appear; and t. sewell with other good men were so strongly impressed with the advantage of such a declaration by them that they could not be persuaded to relinquish the belief in it--i was astonished that they should have attributed to the french such miserable policy." so wrote the able and balanced cabot.[ ] that france refused to adopt "such miserable policy" as marshall had expected was sufficiently exasperating to the war federalists; but to meet that country three fourths of the way on the road to peace was intolerable. "the end [peace] being a bad one all means are unwise and indefensible" was the ultra-federalist belief.[ ] adams's second mission was, they said, party surrender to the republicans; it was "a policy that threatens ... to revive the jacobin faction in our bosom."[ ] federalist members of congress threatened to resign. "i have sacrificed as much as most men ... to support this govt. and root out democracy, & french principles, but ... i feel it to be lost and worse ... i can & will resign if all must be given up to france," cried the enraged tracy.[ ] these "enemies of government" had said all along that things could be arranged with france; that the x. y. z. disclosures were merely a federalist plot; and that the army was a wicked and needless expense. what answer could the federalists make to these republican charges now? adams's new french mission, the federalist chieftains declared, was "a measure to _make_ dangers, and to nullify resources; to make the navy without object; the army an object of popular terror."[ ] and the presidential election was coming on! to hold the situation just as it was might mean federalist victory. suppose events did develop a formal declaration of war with france? that would make federalist success more certain. the country would not turn out a party in charge of the government when cannon were roaring. even more important, an open and avowed conflict with the "bloody republic" would, reasoned the federalist leaders, check the miasmic growth of french revolutionary ideas among the people. in short, a declaration of war with france would do everything which the federalists wished and hoped for. "peace [with france] ... is not desired as it should not be"[ ] was their opinion of the statesmanship demanded by the times. and now adams, without one word to the men who reluctantly had made him president,[ ] had not only prevented a rupture which would have accomplished every federalist purpose, but had delivered his party into the hands of the "jacobins." he had robbed the federalists of their supreme campaign "issue." "peace with france, they think an evil and holding out the hope of it another, as it tends to chill the public fervor";[ ] and the "public fervor" surely needed no further reduction of temperature, for federalist health. if adams did not wish for a formal declaration of war, at least he might have let things alone. but now! "government will be weakened by the friends it loses and betrayed by those it will gain. it will lose ... the friendship of the sense, and worth, and property of the united states, and get in exchange the prejudice, vice, and bankruptcy of the nation,"[ ] wrote ames to pickering. "in resistance alone there is safety,"[ ] was cabot's opinion. "the jacobin influence is rising, and has been ever since the mission to france was determined on; ... if a treaty be made with france their [republican] ascendancy will be sure";[ ] and, after that, the deluge. the federalist leaders felt that, even without a declaration of hostilities by congress, they might make shift to win the approaching election. for on the sea we already were waging war on france, while formally at peace with her. our newborn navy was taking french privateers, defeating french men-of-war, and retaliating with pike, cutlass, and broadside for the piratical french outrages upon american commerce.[ ] as things stood, it was certain that this would continue until after the election, and with each glorious victory of a truxton or a hull, national pride and popular enthusiasm would mount higher and grow stronger. so the federalist politicians thought that "the only negotiation compatible with our honor or our safety is that begun by truxton in the capture of the l'insurgente."[ ] priceless campaign ammunition was this for the federalist political guns. early in the year the bilious but keen-eyed watchman on the ramparts of new england federalism had noted the appearance of "a little patriotism, and the capture of the _insurgente_ cherishes it."[ ] and now adams's second mission might spoil everything. "the jacobins will rise in consequence of this blunder,"[ ] was the doleful prophecy. indeed, it was already in fulfillment even with the utterance: "already the jacobins raise their disgraced heads from the mire of contempt!"[ ] the "country gentlemen" were the hands as the business interests were the brain and heart of the federalist party; "the president destroyed their influence, and ... left them prostrate before their vindictive adversaries."[ ] the republicans were overjoyed. adams had reversed himself, eaten his own words, confessed the hypocrisy of the "infamous x. y. z. plot." "this renders their [federalists'] efforts for war desperate, & silences all further denials of the sincerity of the french government," gleefully wrote jefferson.[ ] marshall alone of the commanding federalists, approved adams's action. "i presume it will afford you satisfaction to know that a measure which excited so much agitation here, has met the approbation of so good a judge as mr. marshall," lee reported to the president.[ ] marshall's support cheered the harried chief executive. "esteeming very highly the opinion and character of your friend general marshall, i thank you for inclosing his letter," responded adams.[ ] the president had done still worse. auctioneer john fries, a militia captain, had headed an armed mob in resistance to the national officers who were levying the national direct tax on the houses and lands of the farmers of eastern pennsylvania. he had been finally taken prisoner, tried, and convicted of sedition and treason, and sentenced to death. against the unanimous written advice of his cabinet, formally tendered,[ ] the president pardoned the "traitor" and "his fellow criminals."[ ] and this clemency was granted at the plea of mckean, the arch-"jacobin" of pennsylvania,[ ] without even consulting the judges of the courts in which they were twice tried and convicted.[ ] what was this, asked the federalist leaders in dazed and angry amazement! paralyze the arm of the law! unloose the fingers of outraged authority from the guilty throat which justice had clutched! what was to become of "law and order" when the nation's head thus sanctioned resistance to both?[ ] in his charge to the federal grand jury, april , , justice iredell declared that if "traitors" are not punished "anarchy will ride triumphant and all lovers of order, decency, truth & justice will be trampled under foot."[ ] how, now, could the federalists repel republican assaults on this direct tax? how, now, could they reply to the republican attacks upon the army to support which the tax was provided! in pardoning fries, adams had admitted everything which the hated jefferson had said against both tax and army.[ ] if adams was right in pardoning fries, then washington was wrong in suppressing the whiskey rebellion. the whole federalist system was abandoned.[ ] the very roots of the federalist philosophy of government and administration were torn from their none too firm hold upon the scanty soil which federalist statesmen had laboriously gathered for their nourishment. and why had adams done this? because, said the federalist politicians, it was popular in pennsylvania;[ ] that was the president's motive--the same that moved him to send the new mission to france.[ ] bending under heavy burdens of state, harassed by the politicians, adams was enduring a private pain sharper than his public cares. his wife, the incomparable abigail, was in massachusetts and seriously ill. the president had left her to meet his cabinet and dispatch the second mission to france. that done, he hastened back to the bedside of his sick wife. but the politicians made no allowances. adams's absence "from the seat of government ... is a source of much disgust," chronicles the ardent troup. "it ... has the air of an abdication."[ ] a month later he records that the president "still continues at braintree,[ ] and the government, like pope's wounded snake, drags its slow length along."[ ] such was the condition of the country and the state of political parties when marshall took his seat in congress. for the federalists, the house was a very "cave of the winds," with confusion, uncertainty, suspicion, anger, and all the disintegrating passions blowing this way and that. but the republicans were a compact, disciplined, determined body full of spirit and purpose. footnotes: [ ] marshall to paulding, april , ; _lippincott's magazine_ ( ), ii, - . [ ] washington to bushrod washington, aug. , ; _writings_: ford, xiv, . [ ] _ib._ in september, , when marshall was absent on the x. y. z. mission, washington received a letter from one "john langhorne" of albemarle county. worded with skillful cunning, it was designed to draw from the retired president imprudent expressions that could be used against him and the federalists. it praised him, denounced his detractors, and begged him to disregard their assaults. (langhorne to washington, sept. , ; _writings_: sparks, xi, .) washington answered vaguely. (washington to langhorne, oct. , ; _writings_: ford, xiii, - .) john nicholas discovered that the langhorne letter had been posted at charlottesville; that no person of that name lived in the vicinity; and that washington's answer was called for at the charlottesville post-office (where jefferson posted and received letters) by a person closely connected with the master of monticello. it was suspected, therefore, that jefferson was the author of the fictitious letter. the mystery caused washington much worry and has never been cleared up. (see washington to nicholas, nov. , ; _ib._, footnote to - ; to bushrod washington, march , ; _ib._, ; to nicholas, march , ; _ib._, - .) it is not known what advice marshall gave washington when the latter asked for his opinion; but from his lifelong conduct in such matters and his strong repugnance to personal disputes, it is probable that marshall advised that the matter be dropped. [ ] paulding: _washington_, ii, - . [ ] marshall to paulding, _supra._ [ ] marshall to paulding, _supra._ this letter was in answer to one from paulding asking marshall for the facts as to washington's part in inducing marshall to run for congress. [ ] pickering to marshall, sept. , ; pickering mss., mass. hist. soc. [ ] _ib._ [ ] adams to pickering, sept. , ; _works_: adams, viii, . [ ] adams to pickering, sept. , ; _works_: adams, viii, . [ ] adams to rush, june , ; _old family letters_, . [ ] wood, . wood's book was "suppressed" by aaron burr, who bought the plates and printer's rights. it consists of dull attacks on prominent federalists. jefferson's friends charged that burr suppressed it because of his friendship for the federalist leaders. (see cheetham's letters to jefferson, dec. , , jan. , , _proceedings_, mass. hist. soc. (april and may, ) - .) soon afterward jefferson began his warfare on burr. [ ] marshall to pickering, oct. , ; pickering mss., mass. hist. soc. this campaign was unusually acrimonious everywhere. "this electioneering is worse than the devil." (smith to bayard, aug. , ; _bayard papers_: donnan, .) [ ] see statutes at large, , , , for alien acts of june , june , and july , and _ib._, , for sedition law of july , . [ ] this section was not made a campaign issue by the republicans. [ ] jefferson to madison, may , ; _works_: ford, viii, ; and to monroe, may , ; _ib._, . jefferson's first harsh word was to madison, june , ; _ib._, . [ ] hamilton to wolcott, june , ; _works_: lodge, x, . [ ] madison to jefferson, may , ; _writings_: hunt, vi, . [ ] for the federalists' justification of the alien and sedition laws see gibbs, ii, _et seq._ [ ] as a matter of fact, the anger of republican leaders was chiefly caused by their belief that the alien and sedition laws were aimed at the republican party as such, and this, indeed, was true. [ ] jefferson to s. t. mason, oct. , ; _works_: ford, viii, . [ ] washington to spotswood, nov. , ; _writings_: ford, xiv, - . [ ] washington to murray, dec. , ; _writings_: ford, xiv, . [ ] washington to bushrod washington, dec. , ; _ib._, - . judge addison's charge was an able if intemperate interpretation of the sedition law. the republican newspapers assailed and ridiculed this very effectively in the presidential campaign of . "alexander addison has published in a volume a number of his _charges_ to juries--and _precious_ charges they are--brimstone and saltpetre, assifoetida and train oil." (_aurora_, dec. , . see chief justice ellsworth's comments upon judge addison's charge in flanders, ii, .) [ ] marshall to pickering, aug. , ; pickering mss., mass. hist. soc. [ ] oct. , . the questions of "freeholder" were, undoubtedly, written with marshall's knowledge. indeed a careful study of them leads one to suspect that he wrote or suggested them himself. [ ] the _times and virginia advertiser_, alexandria, virginia, october , . this paper, however, does not give "freeholder's" questions. the _columbian centinel_, boston, october , , prints both questions and answers, but makes several errors in the latter. the correct version is given in appendix iii, _infra_, where "freeholder's" questions and marshall's answers appear in full. [ ] ames to gore, dec. , ; _works_: ames, i, - . [ ] sedgwick to pickering, oct. , ; pickering mss., mass. hist. soc. [ ] _columbian centinel_ (boston), oct. , . [ ] cabot to king, april , ; king, iii, . [ ] this was not true. the fairfax embarrassment, alone, caused marshall to go to france in . [ ] pickering to sedgwick, nov. , ; pickering mss., mass. hist. soc. [ ] murray to j. q. adams, march , ; _letters_: ford, . murray had been a member of congress and a minor federalist politician. by "us" he means the extreme federalist politicians. [ ] marshall to pickering, oct. , ; pickering mss., mass. hist. soc. [ ] adams: _gallatin_, . [ ] "freeholder" had not asked marshall what he thought of the constitutionality of these laws. [ ] thompson: _the letters of curtius._ john thompson of petersburg was one of the most brilliant young men that even virginia ever produced. see adams: _gallatin_, , . there is an interesting resemblance between the uncommon talents and fate of young john thompson and those of francis walker gilmer. both were remarkably intellectual and learned; the characters of both were clean, fine, and high. both were uncommonly handsome men. neither of them had a strong physical constitution; and both died at a very early age. had john thompson and francis walker gilmer lived, their names would have been added to that wonderful list of men that the virginia of that period gave to the country. the intellectual brilliancy and power, and the lofty character of thompson and gilmer, their feeble physical basis and their early passing seem like the last effort of that epochal human impulse which produced henry, madison, mason, jefferson, marshall, and washington. [ ] taylor to jefferson, june , ; as quoted in _branch historical papers_, ii, . see entire letter, _ib._, - . [ ] for an excellent treatment of the kentucky and virginia resolutions see von holst: _constitutional history of the united states_, i, chap. iv. [ ] nicholas to jefferson, oct. , ; quoted by channing in "kentucky resolutions of "; _amer. hist. rev._, xx, no. , jan., , - . [ ] writing nearly a quarter of a century later, jefferson states that nicholas, breckenridge, and he conferred on the matter; that his draft of the "kentucky resolutions" was the result of this conference; and that he "strictly required" their "solemn assurance" that no one else should know that he was their author. (jefferson to breckenridge, dec. , ; _works_: ford, viii, - .) although this letter of jefferson is positive and, in its particulars, detailed and specific, professor channing has demonstrated that jefferson's memory was at fault; that no such conference took place; and that jefferson sent the resolutions to nicholas, who placed them in the hands of breckenridge for introduction in the kentucky legislature; and that breckenridge and nicholas both thought that the former should not even see jefferson, lest the real authorship of the resolutions be detected. (see "the kentucky resolutions": channing, in _amer. hist. rev._, xx, no. , jan., , - .) [ ] see jefferson's "rough draught" and "fair copy" of the kentucky resolutions; and the resolutions as the kentucky legislature passed them on nov. , ; _works_: ford, viii, - . see examination of marshall's opinion in marbury _vs._ madison, vol. iii of this work. [ ] jefferson to madison, nov. , ; _works_: ford, viii, . [ ] _writings_: hunt, vi, - . [ ] davie to iredell, june , ; quoting from a virginia informant--very probably marshall; mcree, ii, . [ ] iredell to mrs. iredell; jan. , ; mcree, ii, . [ ] murray to j. q. adams, april , ; quoting marshall to sykes, dec. , ; _letters_: ford, . [ ] _writings_: hunt, vi, - . [ ] for marshall's defense of the liberty of the press, quoted by madison, see _supra_, chap. viii. [ ] address of the general assembly to the people of the commonwealth of virginia, journal, h.d. (dec., ), - . [ ] sedgwick to hamilton, feb. , ; _works_: hamilton, vi, - ; and to king, march , ; king, ii, . and murray to j. q. adams, april , ; _letters_: ford, . [ ] address of the minority: journal, h.d. (dec., ), - . also printed as a pamphlet. richmond, . [ ] journal, h.d. ( ), . [ ] callender: _prospect before us_, . [ ] _ib._, _et seq._ [ ] sedgwick to king, march , ; king, ii, . [ ] murray to j. q. adams, april , ; _letters_: ford, . [ ] mordecai, ; also sedgwick to king, nov. , ; king, iii, - . [ ] jefferson to pendleton, feb. , ; _works_: ford, ix, ; and to madison, jan. , ; _ib._, . [ ] jefferson to bishop james madison, feb. , ; _ib._, . [ ] marshall to washington, jan. , ; washington mss., lib. cong. [ ] hamilton to dayton, ; _works_: lodge, x, . the day of the month is not given, but it certainly was early in january. mr. lodge places it before a letter to lafayette, dated jan. , . [ ] hamilton to sedgwick, feb. , ; _works_: lodge, x, - . [ ] this was probably true; it is thoroughly characteristic and fits in perfectly with his well-authenticated conduct after he became chief justice. (see vol. iii of this work.) [ ] callender: _prospect before us_, _et seq._ [ ] see hildreth, v, , , , , - . [ ] wood, - . this canard is an example of the methods employed in political contests when american democracy was in its infancy. [ ] marshall to his brother james m., april , ; ms. marshall uses the word "faction" in the sense in which it was then employed. "faction" and "party" were at that time used interchangeably; and both words were terms of reproach. (see _supra_, chap. ii.) if stated in the vernacular of the present day, this doleful opinion of marshall would read: "nothing, i believe, more debases or pollutes the human mind than partisan politics." [ ] jefferson to pendleton, april , ; _works_: ford, ix, - . [ ] henry to blair, jan. , ; henry, ii, - . [ ] henry to blair, jan. , ; henry, ii, . [ ] _virginia herald_ (fredericksburg), march , . [ ] this was true in most of the states at that period. [ ] this method of electing public officials was continued until the civil war. (see john s. wise's description of a congressional election in virginia in ; wise: _the end of an era_, - . and see professor schouler's treatment of this subject in his "evolution of the american voter"; _amer. hist. rev._, ii, - .) [ ] this account of election day in the marshall-clopton contest is from munford, - . for another fairly accurate but mild description of a congressional election in virginia at this period, see mary johnston's novel, _lewis rand_, chap. iv. [ ] henry, ii, . [ ] randall, ii, . [ ] washington to marshall, may , ; _writings_: ford, xiv, . [ ] as a matter of fact, they were not far wrong. marshall almost certainly would have been made secretary of state if washington had believed that he would accept the portfolio. (see _supra_, .) the assertion that the place actually had been offered to marshall seems to have been the only error in this campaign story. [ ] marshall to washington, may , ; _writings_: ford, xiv, footnote to - ; also flanders, ii, . [ ] washington to marshall, may , ; _writings_: ford, xiv, . [ ] marshall to washington, may , ; washington mss., lib. cong. [ ] pickering to king, may , ; king, iii, . [ ] sedgwick to king, july , ; king, iii, . [ ] sedgwick to king, july , ; king, iii, . [ ] murray to j. q. adams, june , ; _letters_: ford, . [ ] murray to j. q. adams, july , ; _ib._, . [ ] jefferson to stuart, may , ; _works_: ford, ix, . [ ] jefferson to coxe, may , ; _works_: ford, ix, - . [ ] _ib._, . [ ] for instances of these military letters, see marshall to washington, june , ; washington mss., lib. cong. [ ] see morison, i, - ; also hudson: _journalism in the united states_, . party newspapers and speakers to-day make statements, as a matter of course, in every political campaign much more violent than those for which editors and citizens were fined and imprisoned in - . (see _ib._, ; and see summary from the republican point of view of these prosecutions in randall, ii, - .) [ ] adams to pickering, july , ; _works_: adams, ix, . [ ] adams to pickering, aug. , ; _ib._, ; and same to same. aug. , ; _ib._, . [ ] professor washington, in his edition of jefferson's _writings_, leaves a blank after "apostle." mr. ford correctly prints marshall's name as it is written in jefferson's original manuscript copy of the letter. [ ] jefferson to wilson cary nicholas, sept. , ; _works_: ford, ix, - . [ ] marshall to pickering, aug. , ; pickering mss., mass. hist. soc. marshall had not yet grasped the deadly significance of jefferson's states' rights and nullification maneuver. [ ] _supra._ [ ] talleyrand to pichon, aug. , and sept. ; _am. st. prs._, ii, - ; murray to adams, appendix of _works_: adams, viii. for familiar account of pichon's conferences with murray, see murray's letters to j. q. adams, then u.s. minister to berlin, in _letters_: ford, , , - ; and to pickering, _ib._, . [ ] "murray, i guess, wanted to make himself a greater man than he is by going to france," was gallatin's shrewd opinion. gallatin to his wife, march , ; adams: _gallatin_, - . [ ] _ib._ [ ] ames to dwight, feb. , ; _works_: ames, i, . [ ] cabot to king, march , ; king, ii, . [ ] cabot to king, feb. , ; _ib._, . [ ] ames to pickering, march , ; _works_: ames, i, . [ ] ames to pickering, oct. , ; _ib._, . [ ] uriah tracy to mchenry, sept. , ; steiner, . [ ] ames to pickering, nov. , ; _works_: ames, i, - . [ ] ames to pickering, march , ; _works_: ames, i, . [ ] "men of principal influence in the federal party ... began to entertain serious doubts about his [adams's] fitness for the station, yet ... they thought it better to indulge their hopes than to listen to their fears, [and] ... determined to support mr. adams for the chief magistracy." ("public conduct, etc., john adams"; hamilton: _works_: lodge, vii, .) [ ] ames to dwight, feb. , ; _works_: ames, i, . [ ] ames to pickering, nov. , ; _ib._, . [ ] cabot to king, march , ; king, ii, . [ ] higginson to pickering, april , ; pickering mss., mass. hist. soc., printed in _an. rept._, amer. hist. assn., , i, . [ ] for an excellent summary of this important episode in our history see allen: _our naval war with france_. [ ] pickering to king, march , ; king, ii, - . [ ] ames to pickering, march , ; _works_: ames, i, . [ ] ames to dwight, oct. , ; _ib._, . [ ] ames to pickering, oct. , ; _ib._, . [ ] wolcott to ames, aug. , ; gibbs, ii, . [ ] jefferson to pendleton, feb. , ; _works_: ford, ix, . [ ] lee to adams, march , ; _works_: adams, viii, . [ ] adams to lee, march , ; _ib._, . [ ] cabinet to president, sept. , ; _works_: adams, ix, - ; and same to same, may , ; _ib._, - . [ ] adams to lee, may , ; _ib._, . for account of fries's rebellion see mcmaster, ii, - . also hildreth, v, . [ ] pickering to cabot, june , ; lodge: _cabot_, . [ ] "public conduct, etc., john adams"; hamilton: _works_: lodge, vii, - ; and see gibbs, ii, - . [ ] see hamilton's arraignment of the fries pardon in "public conduct, etc., john adams"; _works_: lodge, vii, - . [ ] mcree, ii, . [ ] "the aurora, in analyzing the reasons upon which fries, hainy, and getman have been pardoned brings the president forward as, by this act, condemning: . the tax law which gave rise to the insurrection; . the conduct of the officers appointed to collect the tax; . the marshal; . the witnesses on the part of the united states; . the juries who tried the prisoners; . the court, both in their personal conduct and in their judicial decisions. in short, every individual who has had any part in passing the law--in endeavoring to execute it, or in bringing to just punishment those who have treasonably violated it." (_gazette of the united states_, reviewing bitterly the comment of the republican organ on adams's pardon of fries.) [ ] many federalists regretted that fries was not executed by court-martial. "i suppose military execution was impracticable, but if some executions are not had, of the most notorious offenders--i shall regret the events of lenity in ' & ' --as giving a fatal stroke to government.... undue mercy to villains, is cruelty to all the good & virtuous. our people in this state are perfectly astonished, that cost must continually be incurred for insurrections in pennsylvania for which they say they are taxed & yet no punishment is inflicted on the offenders. i am fatigued & mortified that our govt. which is weak at best, would withhold any of its strength when all its energies should be doubled." (uriah tracy to mchenry, on fries, may , ; steiner, .) and "i am in fear that something will occur to release that fellow from merited death." (same to same, may , ; _ib._) [ ] "public conduct, etc., john adams"; hamilton: _works_: lodge, vii, - . [ ] ames to pickering, nov. , ; _works_: ames, i, . [ ] troup to king, may , ; king, iii, . [ ] adams's home, now quincy, massachusetts. [ ] troup to king, june , ; king, iii, . chapter xi independence in congress the constitution is not designed to secure the rights of the people of europe or asia or to direct proceedings against criminals throughout the universe. (marshall.) the whole world is in arms and no rights are respected but those that are maintained by force. (marshall.) marshall is disposed to express great respect for the sovereign people and to quote their expressions as evidence of truth. (theodore sedgwick.) "i have been much in company with general marshall since we arrived in this city. he possesses great powers and has much dexterity in the application of them. he is highly & deservedly respected by the friends of government [federalists] from the south. in short, we can do nothing without him. i believe his intentions are perfectly honorable, & yet i do believe he would have been a more decided man had his education been on the other side of the delaware, and he the immediate representative of that country."[ ] so wrote the speaker of the house of representatives after three weeks of association with the virginia member whom he had been carefully studying. after another month of federalist scrutiny, cabot agreed with speaker sedgwick as to marshall's qualities. "in congress, you see genl. m.[arshall] is a leader. he is i think a virtuous & certainly an able man; but you see in him the faults of a virginian. he thinks too much of that state, & he expects the world will be governed according to the rules of logic. i have seen such men often become excellent legislators after experience has cured their errors. i hope it will prove so with genl. m.[arshall], who seems calculated to act a great part."[ ] the first session of the sixth congress convened in philadelphia on december , . marshall was appointed a member of the joint committee of the senate and the house to wait upon the president and inform him that congress was in session.[ ] the next day adams delivered his speech to the senators and representatives. the subject which for the moment now inflamed the minds of the members of the president's party was adams's second french mission. marshall, of all men, had most reason to resent any new attempt to try once more where he had failed, and to endeavor again to deal with the men who had insulted america and spun about our representatives a network of corrupt intrigue. but if marshall felt any personal humiliation, he put it beneath his feet and, as we have seen, approved the ellsworth mission. "the southern federalists have of course been induced [by marshall] to vindicate the mission, as a sincere, honest, and politic measure," wrote wolcott to ames.[ ] who should prepare the answer of the house to the president's speech? who best could perform the difficult task of framing a respectful reply which would support the president and yet not offend the rebellious federalists in congress? marshall was selected for this delicate work. "mr. marshall, from the committee appointed to draught an address in answer to the speech of the president of the united states ... reported same."[ ] although written in admirable temper, marshall's address failed to please; the result was pallid. "considering the state of the house, it was necessary and proper that the answer to the speech should be prepared by mr. marshall," testifies wolcott. "he has had a hard task to perform, and you have seen how it has been executed. the object was to unite all opinions, at least of the federalists; it was of course necessary to appear to approve the mission, and yet to express the approbation in such terms as when critically analyzed would amount to no approbation at all. no one individual was really satisfied; all were unwilling to encounter the danger and heat which a debate would produce and the address passed with silent dissent; the president doubtless understood the intention, and in his response has expressed his sense of the dubious compliment in terms inimitably obscure."[ ] levin powell, a federalist representative from virginia, wrote to his brother: "there were members on both sides that disliked that part of it [marshall's address] where he spoke of the mission to france."[ ] the mingled depression, excitement, and resentment among marshall's colleagues must have been great indeed to have caused them thus to look upon his first performance in the house; for the address, which, even now, is good reading, is a strong and forthright utterance. while, with polite agreement, gliding over the controverted question of the mission, marshall's speech is particularly virile when dealing with domestic politics. in coupling fries's pennsylvania insurrection with the kentucky and virginia resolutions marshall displayed as clever political dexterity as even jefferson himself. the address enumerates the many things for which americans ought to thank "the benevolent deity," and laments "that any portion of the people ... should permit themselves, amid such numerous blessings, to _be seduced_ by ... _designing men_ into an open resistance to the laws of the united states.... under a constitution where the public burdens can only be imposed by the people themselves, for their own benefit, and to promote their own objects, a hope might well have been indulged that the general interest would have been too well understood, and the general welfare too highly prized, to have produced in any of our citizens a disposition to hazard so much felicity, by the criminal effort of a part, to oppose with lawless violence the will of the whole."[ ] while it augured well that the courts and militia coöperated with "the military force of the nation" in "restoring order and submission to the laws," still, this only showed the necessity of adams's "recommendation" that "the judiciary system" should be extended. as to the new french mission, the address "approves the pacific and humane policy" which met, by the appointment of new envoys, "the first indications on the part of the french republic" of willingness to negotiate; and "offers up fervent prayers to the supreme ruler of the universe for the success of their embassy." marshall declares "the present period critical and momentous. the important changes which are occurring, the new and great events which are every hour preparing ... the spirit of war ... prevalent in almost every nation ... demonstrate" the need of providing "means of self-defense." to neglect this duty from "love of ease or other considerations" would be "criminal and fatal carelessness." no one could tell how the new mission would terminate: "it depends not on america alone. the most pacific temper will not ensure peace." preparation for "national defense ... is an ... obvious duty. experience the parent of wisdom ... has established the truth ... that ... nothing short of the power of repelling aggression will" save us from "war or national degradation."[ ] gregg of pennsylvania moved to strike out the italicized words in marshall's address to the president, but after a short debate the motion was defeated without roll-call.[ ] wolcott gives us a clear analysis of the political situation and of marshall's place and power in it at this particular moment: "the federal party is composed of the old members who were generally re-elected in the northern, with new members from the southern states. new york has sent an anti-federal majority; pennsylvania has done the same; opposition principles are gaining ground in new jersey and maryland, and in the present congress, the votes of these states will be fluctuating and undecided." nothing shows more clearly the intimate gossip of the time than the similarity of wolcott's and cabot's language in describing marshall. "a number of distinguished men," continues wolcott, "appear from the southward, who are not pledged by any act to support the system of the last congress; these men will pay great respect to the opinions of general marshall; he is doubtless a man of virtue and distinguished talents, but he will think much of the state of virginia, and is too much disposed to govern the world according to rules of logic; he will read and expound the constitution as if it were a penal statute, and will sometimes be embarrassed with doubts of which his friends will not perceive the importance."[ ] marshall headed the committee to inquire of the president when he would receive the address of the house, and on december , "mr. speaker, attended by the members present, proceeded to the president's house, to present him their address in answer to his speech."[ ] a doleful procession the hostile, despondent, and irritated representatives made as they trudged along philadelphia's streets to greet the equally hostile and exasperated chief magistrate. presidential politics was much more on the minds of the members of congress than was the legislation needed by the country. most of the measures and practically all the debates of this remarkable session were shaped and colored by the approaching contest between the federalists and republicans and, personally, between jefferson and adams. without bearing this fact in mind the proceedings of this session cannot be correctly understood. a mere reading of the maze of resolutions, motions, and debates printed in the "annals" leaves one bewildered. the principal topic of conversation was, of course, the impending presidential election. hamilton's faction of extreme federalists had been dissatisfied with adams from the beginning. marshall writes his brother "in confidence" of the plots these busy politicians were concocting. "i can tell you in confidence," writes marshall, "that the situation of our affairs with respect to domestic quiet is much more critical than i had conjectured. the eastern people are very much dissatisfied with the president on account of the late [second] mission to france. they are strongly disposed to desert him & push some other candidate. king or ellsworth with one of the pinckneys--most probably the general, are thought of. "if they are deter'd from doing this by the fear that the attempt might elect jefferson i think it not improbable that they will vote generally for adams & pinckney so as to give the latter gentleman the best chance if he gets the southern vote to be president. "perhaps this ill humor may evaporate before the election comes on--but at present it wears a very serious aspect. this circumstance is rendered the more unpleasant by the state of our finances. the impost received this year has been less productive than usual & it will be impossible to continue the present armament without another loan. had the impost produced the sum to which it was calculated, a loan would have been unavoidable. "this difficulty ought to have been foreseen when it was determined to execute the law for raising the army. it is now conceiv'd that we cannot at the present stage of our negotiation with france change the defensive position we have taken without much hazard. "in addition to this many influential characters not only contend that the army ought not now to be disbanded but that it ought to be continued so long as the war in europe shall last. i am apprehensive that our people would receive with very ill temper a system which should keep up an army of observation at the expense of the annual addition of five millions to our debt. the effect of it wou'd most probably be that the hands which hold the reins wou'd be entirely chang'd. you perceive the perplexities attending our situation. "in addition to this there are such different views with respect to the future, such a rancorous malignity of temper among the democrats,[ ] such [an ap]parent disposition--(if the aurora be the index of the [mind of] those who support it) to propel us to a war with b[ritain] & to enfold us within the embrace of fran[ce], [s]uch a detestation & fear of france among others [that i] look forward with more apprehension than i have ever done to the future political events of our country."[ ] on december a rumor of the death of washington reached the capital. marshall notified the house. his grief was so profound that even the dry and unemotional words of the formal congressional reports express it. "mr. marshall," says the "annals" of congress, "in a voice that bespoke the anguish of his mind, and a countenance expressive of the deepest regret, rose, and delivered himself as follows:-- "mr. speaker: information has just been received, that our illustrious fellow-citizen, the commander-in-chief of the american army, and the late president of the united states, is no more! "though this distressing intelligence is not certain, there is too much reason to believe its truth. after receiving information of this national calamity, so heavy and so afflicting, the house of representatives can be but ill fitted for public business. i move, therefore, they adjourn."[ ] the next day the news was confirmed, and marshall thus addressed the house:-- "mr. speaker: the melancholy event which was yesterday announced with doubt, has been rendered but too certain. "our washington is no more! the hero, the sage, and the patriot of america--the man on whom in times of danger every eye was turned and all hopes were placed--lives now only in his own great actions, and in the hearts of an affectionate and afflicted people. "if, sir, it has even not been usual openly to testify respect for the memory of those whom heaven had selected as its instrument for dispensing good to men, yet such has been the uncommon worth, and such the extraordinary incidents, which have marked the life of him whose loss we all deplore, that the american nation,[ ] impelled by the same feelings, would call with one voice for a public manifestation of that sorrow which is so deep and so universal. "more than any other individual, and as much as to one individual was possible, has he contributed to found this our wide-spread empire,[ ] and to give to the western world its independence and its freedom. "having effected the great object for which he was placed at the head of our armies, we have seen him converting the sword into the plough-share, and voluntarily sinking the soldier in the citizen. "when the debility of our federal system had become manifest, and the bonds which connected the parts of this vast continent were dissolving, we have seen him the chief of those patriots who formed for us a constitution, which, by preserving the union, will, i trust, substantiate and perpetuate those blessings our revolution had promised to bestow. "in obedience to the general voice of his country, calling on him to preside over a great people, we have seen him once more quit the retirement he loved, and in a season more stormy and tempestuous than war itself, with calm and wise determination, pursue the true interests of the nation, and contribute, more than any other could contribute, to the establishment of that system of policy which will, i trust, yet preserve our peace, our honor and our independence. "having been twice unanimously chosen the chief magistrate of a free people, we see him, at a time when his re-election with the universal suffrage could not have been doubted, affording to the world a rare instance of moderation, by withdrawing from his high station to the peaceful walks of private life. however the public confidence may change, and the public affections fluctuate with respect to others, yet with respect to him they have in war and in peace, in public and in private life, been as steady as his own firm mind, and as constant as his own exalted virtues. "let us, then, mr. speaker, pay the last tribute of respect and affection to our departed friend--let the grand council of the nation display those sentiments which the nation feels. for this purpose i hold in my hand some resolutions which i will take the liberty to offer to the house."[ ] the resolutions offered by marshall declared that:-- "the house of representatives of the united states, having received intelligence of the death of their highly valued fellow-citizen, george washington, general of the armies of the united states, and sharing the universal grief this distressing event must produce, _unanimously resolve_:-- " . that this house will wait on the president of the united states, in condolence of this national calamity. " . that the speaker's chair be shrouded with black, and that the members and officers of the house wear mourning during the session. " . that a joint committee of both houses be appointed to report measures suitable to the occasion, and expressive of the profound sorrow with which congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen."[ ] thus it came about that the designation of washington as "first in war, first in peace, and first in the hearts of his countrymen" was attributed to marshall. but marshall's colleague, henry lee, was the author of these words. marshall's refusal to allow history to give him the credit for this famous description is characteristic. he might easily have accepted that honor. indeed, he found it difficult to make the public believe that he did not originate this celebrated phraseology. he presented the resolutions; they stand on the record in marshall's name; and, for a long time, the world insisted on ascribing them to him. in a last effort to make history place the laurels on general lee, where they belong, marshall, three years before his death, wrote the exact facts:-- "as the stage passed through philadelphia," says marshall, "some passenger mentioned to a friend he saw in the street the death of general washington. the report flew to the hall of congress, and i was asked to move an adjournment. i did so. "general lee was not at the time in the house. on receiving the intelligence which he did on the first arrival of the stage, he retired to his room and prepared the resolutions which were adopted with the intention of offering them himself. "but the house of representatives had voted on my motion, and it was expected by all that i on the next day announce the lamentable event and propose resolutions adapted to the occasion. "general lee immediately called on me and showed me his resolutions. he said it had now become improper for him to offer them, and wished me to take them. as i had not written anything myself and was pleased with his resolutions which i entirely approved, i told him i would offer them the next day when i should state to the house of representatives the confirmation of the melancholy intelligence received the preceding day. i did so. "you will see the fact stated in a note to the preface of the life of washington on p. [ ] v. [ ] and again in a note to the th vol. p. . whenever the subject has been mentioned in my presence," marshall adds in a postscript, "i have invariably stated that the resolution was drawn by general lee and have referred to these notes in the life of washington."[ ] during the first session marshall was incessantly active, although his work was done with such ease that he gave to his colleagues the impression of indolence. few questions came before the house on which he did not take the floor; and none, apparently, about which he did not freely speak his mind in private conversation. the interminable roll-calls of the first session show that marshall failed to vote only six times.[ ] his name is prominent throughout the records of the session. for example, the republicans moved to amend the army laws so that enlistments should not exempt non-commissioned officers and privates from imprisonment for debt. marshall spoke against the motion, which was defeated.[ ] he was appointed chairman of a special committee to bring in a bill for removing military forces from election places and "preventing their interference in elections." marshall drew this measure, reported it to the house, where it passed, only to be defeated in the senate.[ ] early in the session marshall was appointed chairman of the committee to report upon the cession by connecticut to the united states of that priceless domain known as the western reserve. he presented the committee report recommending the acceptance of the lands and introduced the bill setting out the terms upon which they could be taken over.[ ] after much debate, which marshall led, gallatin fighting by his side, the bill was passed by a heavy majority.[ ] marshall's vote against abrogating the power of the governor of the territory of the mississippi to prorogue the legislature;[ ] his vote for the resolution that the impertinence of a couple of young officers to john randolph at the theater did not call "for the interposition of this house," on the ground of a breach of its privileges;[ ] his vote against that part of the marine corps bill which provided that any officer, on the testimony of two witnesses, should be cashiered and incapacitated forever from military service for refusing to help arrest any member of the service who, while on shore, offended against the person or property of any citizen,[ ] are fair examples of the level good sense with which marshall invariably voted. on the marine corps bill a debate arose so suddenly and sharply that the reporter could not record it. marshall's part in this encounter reveals his military bent of mind, the influence of his army experience, and his readiness in controversy, no less than his unemotional sanity and his disdain of popular favor if it could be secured only by sacrificing sound judgment. marshall strenuously objected to subjecting the marine corps officers to trial by jury in the civil courts; he insisted that courts-martial were the only tribunals that could properly pass on their offenses. thereupon, young john randolph of roanoke, whose pose at this particular time was extravagant hostility to everything military, promptly attacked him. the incident is thus described by one who witnessed the encounter "which was incidentally and unexpectedly started and as suddenly and warmly debated":-- "your representative, mr. marshall, was the principal advocate for _letting the power remain with courts martial and for withholding it from the courts of law_. in the course of the debate there was some warmth and personality between him and mr. randolph, in consequence of the latter charging the former with adopting opinions, and using arguments, which went to sap the mode of trial by jury. "mr. marshall, with leave, rose a third time, and exerted himself to repel and invalidate the deductions of mr. randolph, who also obtained permission, and defended the inference he had drawn, by stating that mr. marshall, in the affair of robbins,[ ] had strenuously argued against the jurisdiction of the american courts, and had contended that it was altogether an _executive_ business; that in the present instance he strongly contended that the business ought not to be left with the civil tribunals, but that it ought to be transferred to military tribunals, and thus the trial by jury would be lessened and frittered away, and insensibly sapped, at one time by transferring the power to the executive, and at another to the military departments; and in other ways, as occasions might present themselves. the debate happened so unexpectedly that the shorthand man did not take it down, although its manner, its matter, and its tendency, made it more deserving of preservation, than most that have taken place during the session."[ ] marshall's leadership in the fight of the virginia revolutionary officers for land grants from the national government, strongly resisted by gallatin and other republican leaders, illustrates his unfailing support of his old comrades. notwithstanding the republican opposition, he was victorious by a vote of more than two to one.[ ] but marshall voted to rebuke a petition of "free men of color" to revive the slave-trade laws, the fugitive from justice laws, and to take "such measures as shall in due course" free the slaves.[ ] the debate over this resolution is important, not only as explaining the vote of marshall, who came from virginia and was himself a slaveholder, as were washington and jefferson, but also as showing the mind of the country on slavery at that particular time. marshall's colleague, general lee, said that the petition "contained sentiments ... highly improper ... to encourage."[ ] john rutledge of south carolina exclaimed: "they now tell the house these people are in slavery--i thank god they are! if they were not, dreadful would be the consequences.... some of the states would never have adopted the federal form of government if it had not been secured to them that congress never would legislate on the subject of slavery."[ ] harrison gray otis of massachusetts was much disgusted by the resolution, whose signers "were incapable of writing their names or of reading the petitions"; he "thought those who did not possess that species of property [slaves] had better leave the regulation of it to those who were cursed with it." john brown of rhode island "considered [slaves] as much personal property as a farm or a ship.... we want money; we want a navy; we ought therefore to use the means to obtain it.... why should we see great britain getting all the slave trade to themselves; why may not our country be enriched by that lucrative traffic?"[ ] gabriel christie of maryland hoped the petition would "go under the table instead of upon it."[ ] mr. jones of georgia thought that the slaves "have been immensely benefited by coming amongst us."[ ] finally, after two days of debate, in which the cause of freedom for the blacks was almost unsupported, samuel goode of virginia moved: "that the parts of the said petition which invite congress to legislate upon subjects from which the general government is precluded by the constitution have a tendency to create disquiet and jealousy, and ought therefore to receive the pointed disapprobation of this house."[ ] on this motion, every member but one, including john marshall, voted aye. george thacher, a congregationalist preacher from massachusetts, alone voted nay.[ ] such, in general, and in spite of numerous humanitarian efforts against slavery, was american sentiment on that subject at the dawn of the nineteenth century.[ ] five subjects of critical and historic importance came before the session: the federalists' disputed elections bill; the republican attack on the provisional army raised for the probable emergency of war with france; the republican attack on the executive power in the jonathan robins case; the republican onslaught upon the alien and sedition laws; and the national bankruptcy bill. in each of these marshall took a leading and determining part. early in the session (january ) the republicans brought up the vexed question of the sedition law. a resolution to repeal the obnoxious section of this measure was presented on january , and after a hot debate was adopted by the close vote of to . marshall voted for the repeal and against his own party.[ ] had he voted with his party, the republican attack would have failed. but no pressure of party regularity could influence marshall against his convictions, no crack of the party whip could frighten him. considering the white heat of partisan feeling at the time, and especially on the subject of the alien and sedition laws; considering, too, the fact that these offensive acts were administration measures; and taking into account the prominence as a federalist leader which marshall had now achieved, his vote against the reprobated section of the sedition law was a supreme act of independence of political ties and party discipline. he had been and still was the only federalist to disapprove, openly, the alien and sedition laws.[ ] "to make a little saving for our friend marshall's address," chief justice ellsworth sarcastically suggested that, in case of the repeal of the sedition law, "the preamble ... should read thus: 'whereas the increasing danger and depravity of the present time require that the law against seditious practices _should be restored to its full rigor_, therefore,' etc."[ ] from the point of view of its probable effect on marshall's political fortunes, his vote appeared to spell his destruction, for it practically left him outside of either party. he abhorred the doctrine of state sovereignty which jefferson now was making the rallying-point of the republican party; he believed, quite as fervently as had washington himself, that the principle of nationality alone could save the republic. so marshall could have no hopes of any possible future political advancement through the republican party. on the other hand, his vote against his own party on its principal measure killed marshall's future as a federalist in the opinion of all the politicians of his time, both federal and republican.[ ] and we may be certain that marshall saw this even more clearly than did the politicians, just as he saw most things more clearly than most men. but if marshall's vote on the sedition law was an act of insubordination, his action on the disputed elections bill was nothing short of party treason. this next to the last great blunder of the federalists was in reality a high-handed attempt to control the coming presidential election, regardless of the votes of the people. it was aimed particularly at the anticipated republican presidential majority in pennsylvania which had just elected a republican governor over the federalist candidate. on january , senator ross of pennsylvania, the defeated federalist candidate for governor of that state, offered a resolution that a committee should be appointed to consider a law "for deciding disputed elections of president and vice-president ... and ... the legality or illegality of the votes given for those officers in the different states." in a brief but pointed debate, the republicans insisted that such a law would be unconstitutional. the federalist position was that, since the constitution left open the manner of passing upon votes, congress had the power to regulate that subject and ought to provide some method to meet anticipated emergencies. suppose, said senator ross, that "persons should claim to be electors who had never been _properly_ appointed [elected], should their vote be received? suppose they should vote for a person to be president who had not the age required by the constitution or who had not been long enough a citizen of the united states or for two persons who were both citizens of the same state?... what situation would the country be in if such a case was to happen?"[ ] so lively was the interest and high the excitement that marshall did not go to richmond when his fifth child was born on february , .[ ] he spoke in the house february , and was appointed on an important committee february .[ ] on february , the bill was reported to the senate. five days later the republican organ, the "aurora," made shift to get a copy of the measure,[ ] and printed it in full with a bold but justifiable attack upon it and the method of its origin.[ ] on march , the bill passed the senate by a strict party vote.[ ] it provided that a "grand committee," consisting of six senators and six representatives elected by ballot and the chief justice of the supreme court, should take charge of the certificates of electoral votes immediately after they had been opened and read in the presence of congress. this grand committee was to be given power to send for papers and persons and, in secret session, to consider and _determine_ all questions concerning the election. had bribery been employed, had force been used, had threats or intimidation, persuasion or cajolery polluted the voters?--the grand committee was to decide these questions; it was to declare what electoral votes should be counted; it was to throw out electoral votes which it thought to be tainted or improper; and the report of this grand committee was to be final and conclusive. in short, it was to settle absolutely the presidency; from its decree there was to be no appeal.[ ] on march , this bill reached the house. while no action was taken on it for more than two weeks, it was almost the sole topic of conversation among the members. in these cloak-room talks, marshall, to the intense disgust and anger of the federalist leaders, was outspoken against this attempt to seize the presidency under the forms of a national law. two weeks later marshall expressed his opinion on the floor. he thought that "some salutary mode" to guard against election frauds and to settle disputed presidential contests should be adopted; but he did not think that the senate should appoint the chairman of the grand committee, and he objected especially to the finality of its authority.[ ] he moved that these portions of the bill be stricken out and offered a substitute.[ ] opposed as he was to the measure as it came from the senate, he nevertheless was against its indefinite postponement and so voted.[ ] his objections were to the autocratic and definitive power of the grand committee; with this cut from the measure, he was in favor of a joint committee of the house and senate to examine into alleged election frauds and illegalities. the senate bill was referred to a special committee of the house,[ ] which reported a measure in accordance with marshall's views.[ ] after much debate and several roll-calls, the bill, as modified by marshall, passed the house.[ ] marshall's reconstruction of the senate's disputed elections bill killed that measure. it no longer served the purpose of the federalist presidential conspiracy. by a strict party vote, the senate disagreed with the house amendments;[ ] and on the day before adjournment, the bill was finally disposed of by postponement.[ ] thus did marshall destroy the careful plans for his party's further control of the national government, and increase the probability of the defeat of his friend, john adams, and of the election of his enemy, thomas jefferson. had not marshall interfered, it seems certain that the disputed elections bill would have become a law. if it had been enacted, jefferson's election would have been impossible. once again, as we shall see, marshall is to save the political life of his great and remorseless antagonist. yet jefferson had no words of praise for marshall. he merely remarks that "the bill ... has undergone much revolution. marshall made a dexterous manoeuver; he declares against the constitutionality of the senate's bill, and proposes that the right of decision of their grand committee should be controllable by the _concurrent_ vote of the two houses of congress; but to stand good if not rejected by a concurrent vote. you will readily estimate the amount of this sort of controul."[ ] [illustration: _statue of john marshall by randolph rogers_] the party leaders labored hard and long with marshall while the disputed elections bill was before the house. speaker sedgwick thus describes the federalist plot and the paralyzing effect of marshall's private conversations with his fellow members: "looking forward to the ensuing election," writes the disgusted speaker, "it was deemed indispensable to prescribe a mode for canvassing the votes, provided there should be a dispute. there being no law in the state [pennsylvania], the governor had declined, and the jacobins [republicans] propagated the report ... that he would return their votes. a bill was brought into the senate & passed, wisely & effectually providing against the evil, by the constitution of a committee with ultimate powers of decision. "mr. marshall in the first place called in question the constitutional powers of the legislature to delegate such authority to a committee. on this question i had a long conversation with him, & he finally confessed himself (for there is not a more candid man on earth) to be convinced. "he then resorted to another ground of opposition. he said the people having authorized the members to decide, personally, all disputes relative to those elections, altho' the power was not indelegable, yet he thought, in its nature, it was too delicate to be delegated, until experience had demonstrated that great inconveniences would attend its exercise by the legislature; altho' he had no doubt such would be the result of the attempt. "this objection is so attenuated and unsubstantial as to be hardly perceivable by a mind so merely practical as mine. he finally was convinced that it was so and abandoned it. "in the mean time, however, he had dwelt so much, in conversation, on these subjects that he had dissipated our majority, and it never could again be compacted. the consequence was that the bill was lost."[ ] marshall's most notable performance while in congress was his effort in the celebrated jonathan robins case--"a speech," declares that capable and cautious critic, henry adams, "that still stands without a parallel in our congressional debates."[ ] in the crew of the british ship hermione mutinied, murdered their officers, took the ship to a spanish port, and sold it. one of the murderers was thomas nash, a british subject. two years later, nash turned up at charleston, south carolina, as the member of a crew of an american schooner. on the request of the british consul, nash was seized and held in jail under the twenty-seventh article of the jay treaty. nash swore that he was not a british subject, but an american citizen, jonathan robins, born in danbury, connecticut, and impressed by a british man-of-war. on overwhelming evidence, uncontradicted except by nash, that the accused man was a british subject and a murderer, president adams requested judge bee, of the united states district court of south carolina, to deliver nash to the british consul pursuant to the article of the treaty requiring the delivery.[ ] here was, indeed, a campaign issue. the land rang with republican denunciation of the president. what servile truckling to great britain! nay, more, what a crime against the constitution! think of it! an innocent american citizen delivered over to british cruelty. where now were our free institutions? when president adams thus surrendered the connecticut "yankee," robins, he not only prostituted patriotism, showed himself a tool of british tyranny, but also usurped the functions of the courts and struck a fatal blow at the constitution. so shouted republican orators and with immense popular effect. the fires kindled by the alien and sedition laws did not heat to greater fervency the public imagination. here was a case personal and concrete, flaming with color, full of human appeal. jefferson took quick party advantage of the incident. "i think," wrote he, "no circumstance since the establishment of our government has affected the popular mind more. i learn that in pennsylvania it had a great effect. i have no doubt the piece you inclosed will run through all the republican papers, & carry the question home to every man's mind."[ ] "it is enough to call a man an _irishman_, to make it _no murder_ to pervert the law of nations and to degrade national honor and character.... look at what has been done in the case of _jonathan robbins_," [_sic_] exclaimed the "aurora." "a british lieutenant who never saw him until he was prisoner at charleston swears his name is thomas nash." so "the man is hanged!"[ ] for the purposes of the coming presidential campaign, therefore, the robins affair was made the principal subject of republican congressional attack on the administration. on february , the house requested the president to transmit all the papers in the case. he complied immediately.[ ] the official documents proved beyond a doubt that the executed sailor had not been an american citizen, but a subject of the british king and that he had committed murder while on board a british vessel on the high seas. the selectmen of danbury, connecticut, certified that no such person as jonathan robins nor any family of the name of robins ever had lived in that town. so did the town clerk. on the contrary, a british naval officer, who knew nash well, identified him.[ ] bayard, for the federalists, took the aggressive and offered a resolution to the effect that the president's conduct in the robins case "was conformable to the duty of the government and to ... the th article of the treaty ... with great britain."[ ] forced to abandon their public charge that the administration had surrendered an innocent american citizen to british cruelty,[ ] the republicans based their formal assault in congress upon the ground that the president had disobeyed the laws, disregarded the constitution, and taken upon himself the discharge of duties and functions which belonged exclusively to the courts. they contended that, even if nash were guilty, even if he were not an american citizen, he should, nevertheless, have been tried by a jury and sentenced by a court. on february , livingston of new york offered the republican resolutions to this effect. not only was the president's conduct in this serious business a "dangerous interference of the executive with judicial decisions," declared the resolution, but the action of the court in granting the president's request was "a sacrifice of the constitutional independence of the judicial power and exposes the administration thereof to suspicion and reproach."[ ] the house decided to consider the livingston resolutions rather than those offered by bayard, the federalists to a man supporting this method of meeting the republicans on the ground which the latter, themselves, had chosen. thus the question of constitutional power in the execution of treaties came squarely before the house, and the great debate was on.[ ] for two weeks this notable discussion continued. the first day was frittered away on questions of order. the next day the republicans sought for delay[ ]--there were not sufficient facts before the house, they said, to justify that body in passing upon so grave a question. the third day the republicans proposed that the house should request the president to secure and transmit the proceedings before the south carolina federal court on the ground that the house could not determine the matter until it had the court proceedings.[ ] marshall's patience was exhausted. he thought this procrastinating maneuver a republican trick to keep the whole matter open until after the coming presidential campaign,[ ] and he spoke his mind sharply to the house. "let gentlemen recollect the nature of the case," exclaimed marshall; "the president of the united states is charged by this house with having violated the constitution and laws of his country, by having committed an act of dangerous interference with a judicial decision--he is so charged by a member of this house. gentlemen were well aware how much the public safety and happiness depended on a well or a misplaced confidence in the executive. "was it reasonable or right," he asked, "to receive this charge--to receive in part the evidence in support of it--to receive so much evidence as almost every gentleman declared himself satisfied with, and to leave the charge unexamined, hanging over the head of the president of the united states ... how long it was impossible to say, but certainly long enough to work a very bad effect? to him it seemed of all things the most unreasonable and unjust; and the mischief resulting therefrom must be very great indeed." the house ought to consider the evidence it already had; if, on such examination, it appeared that more was needed, the matter could then be postponed. and, in any event, why ask the president to send for the court proceedings? the house had as much power to procure the papers as the president had. "was he [the president] to be a _menial_ to the house in a business wherein himself was seriously charged?"[ ] marshall was aroused. to his brother he thus denounces the tactics of the republicans: "every stratagem seems to be used to give to this business an undue impression. on the motion to send for the evidence from the records of south carolina altho' it was stated & prov'd that this would amount to an abandonment of the enquiry during the present session & to an abandonment under circumstances which would impress the public mind with the opinion that we really believed mr. livingston's resolutions maintainable; & that the record could furnish no satisfaction since it could not contain the parol testimony offered to the judge & further that it could not be material to the president but only to the reputation of the judge what the amount of the testimony was, yet the debate took a turn as if we were precipitating a decision without enquiry & without evidence."[ ] this republican resolution was defeated. so was another by gallatin asking for the papers in the case of william brigstock, which the republicans claimed was similar to that of jonathan robins. finally the main question came on. for two hours gallatin made an ingenious argument in support of the livingston resolutions.[ ] the next day, march , marshall took the floor and made the decisive speech which put a period to this partisan controversy. he had carefully revised his argument,[ ] and it is to this prevision, so unlike marshall's usual methods, that we owe the perfection of the reporter's excellent transcript of his performance. this great address not only ended the republican attack upon the administration, but settled american law as to executive power in carrying out extradition treaties. marshall's argument was a mingling of impressive oratory and judicial finality. it had in it the fire of the debater and the calmness of the judge. it is the highest of marshall's efforts as a public speaker. for many decades it continued to be published in books containing the masterpieces of american oratory as one of the best examples of the art.[ ] it is a landmark in marshall's career and a monument in the development of the law of the land. they go far who assert that marshall's address is a greater performance than any of the speeches of webster, clay, sumner, or other american orators of the first class; and yet so perfect is this speech that the commendation is not extreme. the success of a democratic government, said marshall, depended not only on its right administration, but also on the public's right understanding of its measures; public opinion must be "rescued from those numerous prejudices which ... surround it." bayard and others had so ably defended the administration's course that he would only "reëstablish" and "confirm" what they had so well said. marshall read the section of the jay treaty under which the president acted: this provided, said he, that a murderer of either nation, fleeing for "asylum" to the other, when charged with the crime, and his delivery demanded on such proof as would justify his seizure under local laws if the murder had been committed in that jurisdiction, must be surrendered to the aggrieved nation. thus great britain had required thomas nash at the hands of the american government. he had committed murder on a british ship and escaped to america. was this criminal deed done in british jurisdiction? yes; for "the jurisdiction of a nation extends to the whole of its territory, and to its own citizens in every part of the world.... the nature of civil union" involves the "principle" that "the laws of a nation are rightfully obligatory on its own citizens in every situation where those laws are really extended to them." this "is particularly recognized with respect to the fleets of a nation on the high seas." by "the opinion of the world ... a fleet at sea is within the jurisdiction of the nation to which it belongs," and crimes there committed are punishable by that nation's laws. this is not contradicted by the right of search for contraband, as gallatin had contended, for "in the sea itself no nation has any jurisdiction," and a belligerent has a right to prevent aid being carried to its enemy. but, as to its crew, every ship carried the law of its flag. marshall denied that the united states had jurisdiction, concurrent or otherwise, over the place of the murder; "on the contrary, no nation has any jurisdiction at sea but over its own citizens or vessels or offenses against itself." such "jurisdiction ... is personal, reaching its own citizens only"; therefore american authority "cannot extend to a murder committed by a british sailor on board a british frigate navigating the high seas." there is no such thing as "common [international] jurisdiction" at sea, said marshall; and he exhaustively illustrated this principle by hypothetical cases of contract, dueling, theft, etc., upon the ocean. "a common jurisdiction ... at sea ... would involve the power of punishing the offenses ... stated." piracy was the one exception, because "against all and every nation ... and therefore punishable by all alike." for "a pirate ... is an enemy of the human race." any nation, however, may by statute declare an act to be piratical which is not so by the law of nations; and such an act is punishable only by that particular state and not by other governments. but an act universally recognized as criminal, such as robbery, murder, and the like, "is an offense against the community of nations." the republican contention was that murder and robbery (seizure of ships) constituted piracy "by the law of nations," and that, therefore, nash should have been indicted and tried by american authority as a pirate; whereas he had been delivered to great britain as a criminal against that nation. but, said marshall, a single act does not necessarily indicate piratical intent unless it "manifests general hostility against the world"; if it shows an "intention to rob generally, then it is piracy." if, however, "it be merely mutiny and murder in a vessel with the intention of delivering it up to the enemy, it" is "an offense against a single nation and not piracy." it was only for such murder and "not piracy" that "nash was delivered." and, indisputably, this was covered by the treaty. even if nash had been tried and acquitted for piracy, there still would have remained the crime of murder over which american courts had no jurisdiction, because it was not a crime punishable by international law, but only by the law of the nation in whose jurisdiction the crime was committed, and to which the criminal belonged. american law and american courts could not deal with such a condition, insisted marshall, but british law and courts could and the treaty bound america to deliver the criminal into british hands. "it was an act to which the american nation was bound by a most solemn compact." for an american court to have convicted nash and american authorities to have executed him "would have been murder"; while for them to have "acquitted and discharged him would have been a breach of faith and a violation of national duty." it was plain, then, said he, that nash should have been delivered to the british officers. by whom? the republicans insisted that this authority was in the courts. marshall demonstrated that the president alone could exercise such power. it was, he said, "a case for executive and not for judicial decision." the republican resolutions declared that the judicial power extends to _all_ questions arising under the constitution, treaties, and laws of the united states; but the constitution itself provided that the judicial power extends only to all cases "_in law and equity_" arising under the constitution, laws, and treaties of the united states. "the difference was material and apparent," said marshall. "a case in law or equity was a term well understood and of limited signification. it was a controversy between parties which had taken a shape for judicial decision. if the judicial power extended to every question under the constitution, it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the united states, it would involve almost every subject on which the executive could act. the division of power ... could exist no longer, and the other departments would be swallowed up in the judiciary." the constitution did not confer on the judiciary "any political power whatever." the judicial power covered only cases where there are "parties to come into court, who can be reached by its process and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit." such a case, said marshall, "may arise under a treaty where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court"; and he gave examples. "but the judicial power cannot extend to political compacts; as the establishment of the boundary line between american and british dominions ... or the case of the delivery of a murderer under the twenty-seventh article of our present treaty with britain.... "the clause of the constitution which declares that 'the trial of all crimes ... shall be by jury'" did not apply to the decision of a case like that of robins. "certainly this clause ... cannot be thought obligatory on ... the whole world. it is not designed to secure the rights of the people of europe or asia or to direct and control proceedings against criminals throughout the universe. it can, then, be designed only to guide the proceedings of our own courts" in cases "to which the jurisdiction of the nation may rightfully extend." and the courts could not "try the crime for which thomas nash was delivered up to justice." the sole question was "whether he should be delivered up to a foreign tribunal which was alone capable of trying and punishing him." a provision for the trial of crimes in the courts of the united states is clearly "not a provision for the surrender to a foreign government of an offender against that government." if the murder by nash were a crime, it is one "not provided for by the constitution"; if it were not a crime, "yet it is the precise case in which his surrender was stipulated by treaty" which the president, alone, must execute. that in the executive decision "judicial questions" must also be determined, argued nothing; for this often must be the case, as, for instance, in so simple and ordinary matter as issuing patents for public lands, or in settling whether vessels have been captured within three miles of our coasts, or in declaring the legality of prizes taken by privateers or the restoration of such vessels--all such questions, of which these are familiar examples, are, said marshall, "questions of political law proper to be decided by the executive and not by the courts." this was the nash case. suppose that a murder were "committed within the united states and the murderer should seek an asylum in great britain!" the treaty covered such a case; but no man would say "that the british courts should decide" it. it is, in its nature, a national demand made upon the nation. the parties are two nations. they cannot come into court to litigate their claims, nor can a court decide on them. "of consequence," declares marshall, "the demand is not a case for judicial cognizance." "the president is the sole organ of the nation in its external relations"; therefore "the demand of a foreign nation can only be made on him. he possesses the whole executive power. he holds and directs the force of the nation. of consequence, any act to be performed by the force of the nation is to be performed through him. he is charged to execute the laws. a treaty is ... a law. he must, then, execute a treaty, where he, and he alone, possesses the means of executing it." this, in rough outline, is marshall's historic speech which helped to direct a new nation, groping blindly and with infinite clamoring, to a straight and safe pathway. pickering immediately reported to hamilton: "mr. marshall delivered a very luminous argument on the case, placing the th article of the treaty in a clear point of view and giving constructions on the questions arising out of it perfectly satisfactory, but, as it would seem, wholly unthought of when the meaning of the article was heretofore considered. his argument will, i hope, be fully and correctly published; it illustrates an important national question."[ ] the republicans were discomfited; but they were not without the power to sting. though marshall had silenced them in congress, the republican press kept up the attack. "_mr. marshall_ made an ingenious and _specious_ defence of the administration, in relation to executive interference in the case of _robbins_," [_sic_] says the "aurora," "but he was compelled to admit, what certainly implicates both the president and judge bee.... he admitted that an american seaman was justifiable, in rescuing himself from impressment, to put to death those who kept him in durance.... robbins [_sic_] claimed to be an american citizen, and asserted upon his oath, that he had been impressed and yet his claim was not examined into by the judge, neither did the president _advise_ and _request_ that this should be a subject of enquiry. the enquiry into his citizenship was made _after_ his surrender and execution, and the evidence exhibited has a very suspicious aspect.... town clerks may be found to certify to anything that timothy pickering shall desire."[ ] nevertheless, even the "aurora" could not resist an indirect tribute to marshall, though paying it by way of a sneer at samuel w. dana of connecticut, who ineffectually followed him. "in the debate on _mr. livingston's_ resolutions, on friday last," says the "aurora," "mr. marshall made, in the minds of some people, a very satisfactory defense of the conduct of the _president_ and _judge bee_ in the case of _jonathan robbins_ [_sic_]. mr. dana, however, thought the subject exhausted, and very _modestly_ (who does not know his _modesty_) resolved with his inward man to shed a few more rays of light on the subject; a federal judge, much admired for his wit and humour, happened to be present, when mr. dana began his flourishes. "the judge thought the seal of conviction had been put upon the case by mr. marshall, and discovered symptoms of uneasiness when our little connecticut cicero displayed himself to catch mr. speaker's vacant eye--'sir,' said the wit to a byestander, 'what can induce that man to rise, he is nothing but a shakebag, and can only shake out the ideas that have been put into the members' heads by mr. marshall.'"[ ] marshall's argument was conclusive. it is one of the few speeches ever delivered in congress that actually changed votes from one party to the other in a straight-out party fight. justice story says that marshall's speech "is one of the most consummate juridical arguments which was ever pronounced in the halls of legislation; ... equally remarkable for the lucid order of its topics, the profoundness of its logic, the extent of its research,[ ] and the force of its illustrations. it may be said of that speech ... that it was '_réponse sans réplique_,' an answer so irresistible that it admitted of no reply. it silenced opposition and settled then and forever the points of international law on which the controversy hinged.... an unequivocal demonstration of public opinion followed. the denunciations of the executive, which had hitherto been harsh and clamorous everywhere throughout the land, sunk away at once into cold and cautious whispers only of disapprobation. "whoever reads that speech, even at this distance of time, when the topics have lost much of their interest, will be struck with the prodigious powers of analysis and reasoning which it displays, and which are enhanced by the consideration that the whole subject was then confessedly new in many of its aspects."[ ] the republican leaders found their own members declaring themselves convinced by marshall's demonstration and announcing their intentions of voting with the administration. gallatin, livingston, and randolph had hard work to hold their followers in line. even the strongest efforts of these resourceful men would not rally all of their shattered forces. many republican members ignored the pleadings of their leaders and supported marshall's position. this is not to be wondered at, for marshall had convinced even gallatin himself. this gifted native of switzerland was the republican leader of the house. unusually well-educated, perfectly upright, thorough in his industry, and careful in his thinking, gallatin is the most admirable of all the characters attracted to the republican ranks. he had made the most effective argument on the anti-administration side in the debate over the livingston resolutions, and had been chosen to answer marshall's speech. he took a place near marshall and began making notes for his reply; but soon he put his pencil and paper aside and became absorbed in marshall's reasoning. after a while he arose, went to the space back of the seats, and paced up and down while marshall proceeded. when the virginian closed, gallatin did not come forward to answer him as his fellow partisans had expected. his republican colleagues crowded around the brilliant little pennsylvania swiss and pleaded with him to answer marshall's speech without delay. but gallatin would not do it. "answer it yourself," exclaimed the republican leader in his quaint foreign accent; "for my part, i think it unan_swer_able," laying the accent on the _swer_.[ ] nicholas of virginia then tried to reply, but made no impression; dana spoke to no better purpose, and the house ended the discussion by a vote which was admitted to be a distinctively personal triumph for marshall. the republican resolutions were defeated by to , in a house where the parties were nearly equal in numbers.[ ] for once even jefferson could not withhold his applause for marshall's ability. "livingston, nicholas & gallatin distinguished themselves on one side & j. marshall greatly on the other," he writes in his curt account of the debate and its result.[ ] and this grudging tribute of the republican chieftain is higher praise of marshall's efforts than the flood of eulogy which poured in upon him; jefferson's virulence toward an enemy, and especially toward marshall, was such that he could not see, except on rare occasions, and this was one, any merit whatever in an opponent, much less express it. marshall's defense of the army law was scarcely less powerful than his speech in the robins case; and it reveals much more clearly marshall's distinctively military temper of mind. congress had scarcely organized when the question came up of the reduction of the army. on this there was extended debate. nicholas of virginia offered a resolution to repeal the act for the provisional army of which washington had been the commander-in-chief. the expense of this military establishment greatly alarmed nicholas, who presented an array of figures on which his anxieties fed.[ ] it was nonsense, he held, to keep this army law on the statute books for its effect on the negotiations with france. marshall promptly answered. "if it was true," said he, "that america, commencing her negotiation with her present military force would appear in the armor which she could only wear for a day, the situation of our country was lamentable indeed. if our debility was really such ... our situation was truly desperate." there was "no cheaper mode of self-defense"; to abandon it "amounted to a declaration that we were unable to defend ourselves." it was not necessary to repeal the law entirely or to put it, "not modified," in full effect. marshall suggested a middle ground by which "the law might be modified so as to diminish the estimated expense, without dismissing the troops already in actual service."[ ] answering the favorite argument made by the opponents of the army, that no power can invade america, he asked: "what assurance have gentlemen that invasion is impracticable?" who knows the real conditions in europe?--the "effect of the late decisive victories of france?... it was by no means certain" that these had not resulted in the release of forces which she "may send across the atlantic." why be precipitate? asked marshall; by the opening of the next campaign in europe we should have more information. let us look the situation in the face: "we are, in fact, at war with france, though it is not declared in form"; commerce is suspended; naval battles are being fought; property is "captured and confiscated"; prisoners are taken and incarcerated. america is of "vast importance to france"; indeed, "the monopoly of our commerce in time of peace" is invaluable to both france and england "for the formation of a naval power." the republicans, he said, had "urged not only that the army is useless," but that we could not afford the expense of maintaining it. "suppose this had been the language of ' !" exclaimed marshall. "suppose a gentleman had risen on the floor of congress, to compare our revenues with our expenses--what would have been the result of the calculation?" it would have shown that we could not afford to strike for our independence! yet we did strike and successfully. "if vast exertions were then made to acquire independence, will not the same exertions be now made to maintain it?" the question was, "whether self-government and national liberty be worth the money which must be expended to preserve them?"[ ] he exposed the sophistry of an expensive economy. it should never be forgotten that true economy did not content itself with inquiring into the mere saving of the present moment; it should take an enlarged view of the subject, and determine, on correct calculations, whether the consequence of a present saving might not be a much more considerable future expenditure. marshall admitted that the reduction of the army would certainly diminish the expense of the present year, but contended that the present saving would bear no proportion to the immense waste of blood, as well as treasure, which it might occasion.[ ] "and consider," he exclaimed, "the effect the army already had produced on the mind and conduct of france. while america was humbly supplicating for peace, and that her complaints might be heard, france spurned her contemptuously and refused to enter on a discussion of differences, unless that discussion was preceded by a substantial surrender of the essential attributes of independence." "america was at length goaded into resistance," asserted marshall, "and resolved on the system of defense, of which the army now sought to be disbanded forms a part." what was the result? "immediately the tone of france was changed, and she consented to treat us as an independent nation. her depredations indeed did not cease; she continued still to bring war upon us; but although peace was not granted, the door to peace was opened." if "a french army should be crossing the atlantic to invade our territory," would anybody insist on disbanding our army? "was it wise, then, to do so while such a probability existed?" in a few months we should know; and, if danger should disappear, "the army expires by the law which gave it being." meantime the expense would be trifling.[ ] in a private letter marshall states, with even more balance, his views of the conflicting questions of the expense involved in, and the necessity for, military equipment. he regrets that a loan is "absolutely unavoidable"; but "attention must be paid to our defenses":-- "the whole world is in arms and no rights are respected but those that [are] maintained by force. in such a state of things we dare not be totally unmindful of ourselves or totally neglectful of that military position to which, in spite of the prudence and pacific disposition of our government, we may be driven for the preservation of our liberty and national independence. "altho' we ought never to make a loan if it be avoidable, yet when forc'd to it much real consolation is to be deriv'd from the future resources of america. these resources, if we do not throw them away [by] dissolving the union, are invaluable. it is not to be doubted that in twenty years from this time the united states would be less burthen'd by a revenue of twenty millions than now by a revenue of ten. it is the plain & certain consequence of our increasing population & our increasing wealth.... "the system of defence which has rendered this measure necessary was not [only] essential to our character as an independent nation, but it has actually sav'd more money to the body of the people than has been expended & has very probably prevented either open war or such national degradation as would make us the objects of general contempt and injury. "a bill to stop recruiting in the twelve additional regiments has been brought in and will pass without opposition. an attempt was made absolutely to disband them, but [it] was negativ'd. it has been so plainly prov'd to us that french aggression has been greatly increased, & that their contemptuous refusal even to treat with us as an independent nation has been entirely occasioned by a belief that we could not resist them; & it is so clear that their present willingness to treat is occasioned by perceiving our determination to defend ourselves, that it was thought unwise to change materially our system at the commencement of negotiation. "in addition to this it had much weight, that we should know in a few months the facts of our negotiation & should then be able to judge whether the situation & temper of france rendered an invasion pro[bable]. then would be the time to decide on diminishing [or] augmenting our military forces. a french has it is said arrived in the west indies & three frigates expected."[ ] although the debate dragged on and the army was attacked and defended with brilliant ability, marshall's argument remained the gibraltar of the administration, upon which all the assaults of the republicans were centered unavailingly. for his army speech was never answered. only once more during this debate did marshall rise and then but briefly, to bring his common sense to bear upon the familiar contention that, if the country is in danger, its citizens will rise spontaneously to defend it. he said that it would be absurd to call men to arms, as had been done, and then "dismiss them before the service was performed ... merely because their zeal could be depended on" hereafter. he "hoped the national spirit would never yield to that false policy."[ ] the fourth important subject in which marshall was a decisive influence was the national bankruptcy law, passed at this session of congress. he was the second member of the committee that drafted this legislation.[ ] for an entire month the committee worked on the bill and reported it on january , .[ ] after much debate, which is not given in the official reports, the bill passed the house on february and the senate march .[ ] while the "annals" do not show it, we know from the testimony of the speaker of the house that marshall was the vital force that shaped this first national bankruptcy act. he was insistent that the law should not be too extensive in its provisions for the curing of bankruptcy, and it was he who secured the trial by jury as to the fact of bankruptcy. "it [the bankruptcy law] is far from being such an one as i wished," writes sedgwick. "the _acts_ in curing bankruptcy are too restricted, and the trial of the question bankrupt or not, by jury, will be found inconvenient, embarrassing & dilatory. the mischief was occasioned by virginia theory. it was the whim of general marshall; with him a _sine qua non_ of assent to the measure, & without him the bill must have been lost, for it passed the house by my casting vote." "besides the bankrupt bill, we have passed [only] one more of great importance," writes the speaker of the house in a review of the work of the session.[ ] much of the speaker's summary is devoted to marshall. sedgwick was greatly disappointed with the laws passed, with the exception of the bankruptcy bill "and one other."[ ] "all the rest we have made here are, as to any permanently beneficial effects, hardly worth the parchment on which they are written. the reason of this feebleness is a real feebleness of character in the house." sedgwick lays most of this at marshall's door, and in doing so, draws a vivid picture of marshall the man, as well as of marshall the legislator:-- "marshall was looked up to as the man whose great and commanding genius was to enlighten & direct the national councils. this was the general sentiment, while some, and those of no inconsiderable importance, calculating on his foolish declaration, relative to the alien & sedition laws, thought him temporizing while others deemed him feeble. "none had in my opinion justly appreciated his character. as his character has stamped itself on the measures of the present session, i am desirous of letting you know how i view it. "he is a man of a very affectionate disposition, of great simplicity of manners and honest & honorable in all his conduct. "he is attached to pleasures, with convivial habits strongly fixed. "he is indolent, therefore; and indisposed to take part in the common business of the house. "he has a strong attachment to popularity but indisposed to sacrifice to it his integrity; hence it is that he is disposed on all popular subjects to feel the public pulse and hence results indecision and _an expression_ of doubt. "doubts suggested by him create in more feeble minds those which are irremovable. he is disposed ... to express great respect for the sovereign people, and to quote their opinions as an evidence of truth. "the latter is of all things the most destructive of personal independence & of that weight of character which a great man ought to possess. "this gentleman, when aroused, has strong reasoning powers; they are almost unequalled. but before they are excited, he has frequently, nearly, destroyed any impression from them."[ ] such was marshall's work during his six months' service in congress, the impression he made, and the estimate of him by his party friends. his "convivial habits, strongly fixed," his great good nature, his personal lovableness, were noted by his associates in the national house of representatives quite as much as they had been observed and commented on by his fellow members in the virginia legislature and by his friends and neighbors in richmond. the public qualities which his work in congress again revealed in brilliant light were his extraordinary independence of thought and action, his utter fearlessness, and his commanding mental power. but his personal character and daily manners applied a soothing ointment to any irritation which his official attitude and conduct on public questions created in the feelings of his associates. so came the day of adjournment of congress; and with it the next step which fate had arranged for john marshall. footnotes: [ ] sedgwick to king, dec. , ; king, iii, . [ ] cabot to king, jan. , ; _ib._, . [ ] _annals_, th cong., st sess., . [ ] wolcott to ames, dec. , ; gibbs, ii, . [ ] _annals_, th cong. st sess., . the speech as reported passed with little debate. [ ] wolcott to ames, dec. , ; gibbs, ii, . and see mcmaster, ii, . [ ] levin powell to major burr powell, dec. , ; _branch historical papers_, ii, . [ ] _annals_, th cong., st sess., . [ ] _annals_, th cong., st sess., - . [ ] _ib._, . [ ] wolcott to ames, dec. , ; gibbs, ii, . [ ] _annals_, th cong., st sess., . [ ] the federalists called the republicans "democrats," "jacobins," etc., as terms of contempt. the republicans bitterly resented the appellation. the word "democrat" was not adopted as the formal name of a political party until the nomination for the presidency of andrew jackson, who had been jefferson's determined enemy. [ ] marshall to james m. marshall, philadelphia, dec. , ; ms. [ ] _annals_, th cong., st sess., . [ ] marshall appears to have been the first to use the expression "the american nation." [ ] the word "empire" as describing the united states was employed by all public men of the time. washington and jefferson frequently spoke of "our empire." [ ] _annals_, th cong., st. sess., - . [ ] _ib._, . [ ] marshall to charles w. hannan, of baltimore, md., march , ; ms., n.y. pub. lib.; also marshall, ii, . [ ] these were: on the bill to enable the president to borrow money for the public (_annals_, th cong., st sess., ); a bill for the relief of rhode island college (_ib._, ); a salt duty bill (_ib._, ); a motion to postpone the bill concerning the payment of admirals (_ib._, ); a bill on the slave trade (_ib._, - ); a bill for the additional taxation of sugar (_ib._, ). [ ] _ib._, - . [ ] _annals_, th cong., st sess., _house_, - , , ; _senate_, . [ ] _ib._, - . [ ] _ib._, . see _ib._, appendix ii, , . thus marshall was the author of the law under which the great "western reserve" was secured to the united states. the bill was strenuously resisted on the ground that connecticut had no right or title to this extensive and valuable territory. [ ] _ib._, . on this vote the _aurora_ said: "when we hear such characters as general lee calling it _innovation_ and _speculation_ to withhold from the executive magistrate the dangerous and unrepublican power of _proroguing_ and dissolving a legislature at his pleasure, what must be the course of our reflections? when we see men like general marshall voting for such a principle in a government of a portion of the american people is there no cause for alarm?" (_aurora_, march , .) [ ] _annals_, th cong., st sess., - . [ ] _annals_, th cong., st sess., - . [ ] see _infra_, _et seq._ [ ] "copy of a letter from a gentleman in philadelphia, to his friend in richmond, dated th march, ," printed in _virginia gazette and petersburg intelligencer_, april , . [ ] _annals_, th cong., st sess., - . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, - . [ ] _annals_, th cong., st sess., . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] concerning a similar effort in , washington wrote: "the memorial of the quakers (and a very _malapropos_ one it was) has at length been put to sleep, and will scarcely awake before the year ." (washington to stuart, march , ; _writings_: ford, xi, .) [ ] _annals_, th cong., st sess., resolution and debate, ii, - . [ ] bassett, . [ ] ellsworth to pickering, dec. , ; flanders, ii, . [ ] adams: _gallatin_, . and see federalist attacks on marshall's answers to "freeholder," _supra_. [ ] _annals_, th cong., st sess., . [ ] james keith marshall. [ ] _annals_, th cong., st sess., , . [ ] at this period the senate still sat behind closed doors and its proceedings were secret. [ ] _annals_, th cong., st sess., . this led to one of the most notably dramatic conflicts between the senate and the press which has occurred during our history. for the prosecution of william duane, editor of the _aurora_, see _ib._, , - , - . it was made a campaign issue, the republicans charging that it was a federalist plot against the freedom of the press. (see _aurora_, march and , .) [ ] _ib._, . [ ] for a review of this astonishing bill, see mcmaster, ii, - , and schouler, i, . [ ] _annals_, th cong., st sess., . [ ] marshall's substitute does not appear in the _annals_. [ ] _annals_, th cong., st sess., . [ ] _ib._, . [ ] _annals_, th cong., st sess., - . [ ] _ib._, - . [ ] _ib._, . [ ] _ib._, . [ ] jefferson to livingston, april , ; _works_: ford, ix, . [ ] sedgwick to king, may , ; king, iii, - . [ ] adams: _gallatin_, . [ ] united states _vs._ nash _alias_ robins, bee's _reports_, . [ ] jefferson to charles pinckney, oct. , ; _works_: ford, ix, . [ ] _aurora_, feb. , . [ ] _annals_, th cong., st sess., . [ ] _ib._, - . nash himself confessed before his execution that he was a british subject as claimed by the british authorities and as shown by the books of the ship hermione. [ ] _ib._, . [ ] the republicans, however, still continued to urge this falsehood before the people and it was generally believed to be true. [ ] _annals_, th congress, st sess., - . [ ] _ib._, - . [ ] _ib._, . [ ] _annals_, th cong., st sess., . [ ] this, in fact, was the case. [ ] _annals_, th cong., st sess., . [ ] marshall to james m. marshall, feb. , ; ms. [ ] _annals_, th cong., st sess., - . [ ] pickering to james winchester, march , ; pickering mss., mass. hist. soc. also binney, in dillon, iii, . [ ] see moore: _american eloquence_, ii, - . the speech also appears in full in _annals_, th cong., st sess., - ; in benton: _abridgment of the debates of congress_; in bee's _reports_, ; and in the appendix to wharton: _state trials_, . [ ] pickering to hamilton, march , ; pickering mss., mass. hist. soc. [ ] _aurora_, march , . [ ] _aurora_, march , . [ ] marshall's speech on the robins case shows some study, but not so much as the florid encomium of story indicates. the speeches of bayard, gallatin, nicholas, and others display evidence of much more research than that of marshall, who briefly refers to only two authorities. [ ] story, in dillon, iii, - . [ ] grigsby, i, ; adams: _gallatin_, . [ ] _annals_, th cong., st sess., . [ ] jefferson to madison, march , ; _works_: ford, ix, . in sending the speeches on both sides to his brother, levin powell, a virginia federalist representative, says: "when you get to marshall's it will be worth a perusal." (levin powell to major burr powell, march , ; _branch historical papers_, ii, .) [ ] _annals_, th cong., st sess., - . [ ] _ib._, . [ ] _annals_, th cong., st sess., - . [ ] _ib._ [ ] _annals_, th cong., st sess., , . [ ] marshall to dabney, jan. , ; ms. colonel charles dabney of virginia was commander of "dabney's legion" in the revolution. he was an ardent federalist and a close personal and political friend of marshall. [ ] _annals_, th cong., st sess., - . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, ; see law as passed, - . [ ] sedgwick to king, may , ; king, iii, . [ ] the act requiring the secretary of the treasury to lay before congress at each session a report of financial conditions with his recommendations. (_annals_, th cong., st sess., appendix, .) the speaker thought this law important because it "will give splendor to the officer [secretary of the treasury] and respectability to the executive department of the govt." (sedgwick to king, _supra_.) yet the session passed several very important laws, among them the act accepting the cession of the western reserve (_annals_, th cong., st sess., appendix, - ) and the act prohibiting american citizens "or other persons residing within the united states" to engage in the slave trade between foreign countries (_ib._, - .) [ ] sedgwick to king, may , ; king, iii, . chapter xii chief justice of the united states i consider general marshall as more than a secretary--as a state conservator. (oliver wolcott.) to mr. jefferson i have felt insuperable objections. the morals of the author of the letter to mazzei cannot be pure. (marshall.) you have given an opinion in exact conformity with the wishes of your party. come forward and defend it. (george hay to marshall.) "the p. requests mr. mchenry's company for one minute," wrote president adams to his secretary of war on the morning of may , .[ ] the unsuspicious mchenry at once responded. the president mentioned an unimportant departmental matter; and then, suddenly flying into a rage, abused his astounded cabinet adviser in "outrageous"[ ] fashion and finally demanded his resignation.[ ] the meek mchenry resigned. to the place thus made vacant, the harried president, without even consulting him, immediately appointed marshall, who "as immediately declined."[ ] then adams tendered the office to dexter, who accepted. and resign, too, demanded adams of his secretary of state.[ ] the doughty pickering refused[ ]--"i did not incline to accept this insidious favor,"[ ] he reported to hamilton. adams dismissed him.[ ] again the president turned to marshall, who, deeply troubled, considered the offer. the federalist cabinet was broken to pieces, and a presidential election was at hand which would settle the fate of the first great political party in american history. the campaign had already started. the political outlook was dark enough before the president's outburst; this shattering of his cabinet was a wicked tongue of lightning from the threatening clouds which, after the flash, made them blacker still.[ ] few presidents have ever faced a more difficult party condition than did john adams when, by a humiliating majority of only three votes, he was elected in . he succeeded washington; the ruling federalist politicians looked to hamilton as their party chieftain; even adams's cabinet, inherited from washington, was personally unfriendly to the president and considered the imperious new york statesman as their supreme and real commander. "i had all the officers and half the crew always ready to throw me overboard," accurately declared adams some years later.[ ] adams's temperament was the opposite of washington's, to which the federalist leaders had so long been accustomed that the change exasperated them.[ ] from the very beginning they bound his hands. the new president had cherished the purpose of calling to his aid the ablest of the republicans, but found himself helpless. "when i first took the chair," bitterly records adams, "i was extremely desirous of availing myself of mr. madison's abilities, ... and experience. but the violent party spirit of hamilton's friends, jealous of every man who possessed qualifications to eclipse him, prevented it. i could not do it without quarreling outright with my ministers whom washington's appointment had made my masters."[ ] on the other hand, the high federalist politicians, most of whom were hamilton's adherents, felt that adams entertained for their leader exactly the same sentiments which the president ascribed to them. "the jealousy which the p.[resident] has felt of h.[amilton] he now indulges toward p.[inckney], w.[olcott] & to'd _very many of their friends_ who are suspected of having too much influence in the community, & of not knowing how to appreciate his [adams's] merits.... the consequence is that his ears are shut to his best real friends & open to flatterers, to time servers & even to some jacobins."[ ] adams, the scholar and statesman, but never the politician, was the last man to harmonize these differences. and hamilton proved to be as inept as adams. after the president had dispatched the second mission to france, hamilton's followers, including adams's cabinet, began intriguing in a furtive and vicious fashion to replace him with some other federalist at the ensuing election. while, therefore, the president, as a personal matter, was more than justified in dismissing mchenry and pickering (and wolcott also[ ]), he chose a fatal moment for the blow; as a matter of political strategy he should have struck sooner or not at all. at this late hour the great party task and duty of the president was, by any and every honorable means, to unite all federalist factions for the impending battle with the eager, powerful, and disciplined republicans. frank and full conference, tolerance, and conciliation, were the methods now required. these might not have succeeded, but at least they would not have irritated still more the ragged edges of party dissension. not only did the exasperated president take the opposite course, but his manner and conduct were acid instead of ointment to the raw and angry wounds.[ ] this, then, was the state of the federalist party, the frame of mind of the president, and the distracted condition of the cabinet, when marshall was asked to become secretary of state in the late spring of . he was minded to refuse this high station as he had that of secretary of war. "i incline to think mr. marshall will decline this office also," wrote mchenry to his brother.[ ] if he accepted, he would be loyal to the president--his nature made anything else impossible. but he was the personal friend of all the federalist leaders, who, in spite of his disapproval of the alien and sedition laws and of his dissent from his party's plans in congress, in spite, even, of his support of the president's detested second mission to france,[ ] nevertheless trusted and liked him. the president's selection of marshall had been anticipated by the republicans. "general marshall ... has been nominated to hold the station of secretary of war," said the "aurora," in an article heavy with abuse of pickering. "this ... however, is said to be but preparatory to general marshall's appointment to succeed mr. pickering who is expected to resign."[ ] strangely enough the news of his elevation to the head of the cabinet called forth only gentle criticism from the republican press. "from what is said of mr. marshall," the "aurora" thought that he was "as little likely to conciliate" france as pickering. he "is well known to have been the disingenuous writer of all the x. y. z. dispatches," which the federalists had "confessed to be one of the best and most successful political _tricks_ that was ever _played off_.... general marshall's fineering and var[ni]shing capacity" was "well known," said the "aurora." "general marshall consequently has been nominated and appointed.... in genuine federal principles, general marshall is as inflexible as mr. pickering; but in the negotiation with france, the general may not have imbibed so strong prejudices--and, having been one of the envoys to that republic, he may be supposed to be more conversant with some of the points in dispute, than col. pickering, and consequently to be preferred. "we find him very well spoken of in the _reformed gazettes of france_," continues the "aurora," "which being now under guardianship[ ] may be considered as speaking the language of the government--'_le bien informé_,' after mentioning the motion gen. m. made in announcing to congress the death of gen. washington, adds--'this is the gentleman who some time since came as envoy from the _united states_; and who so virtuously and so spiritedly refused to fill the pockets of some of _our gentry_ with dutch inscriptions, and millions of livres.'"[ ] for nearly two weeks marshall pondered over the president's offer. the prospect was not inviting. it was unlikely that he could hold the place longer than three quarters of a year, for federalist defeat in the presidential election was more than probable; and it seemed certain that the head of the cabinet would gather political cypress instead of laurel in this brief and troubled period. marshall consulted his friends among the federalist leaders; and, finally, accepted the proffered portfolio. thereupon the "aurora," quoting pickering's statement that the office of secretary of state "was never better filled than by general marshall," hopes that "gen. marshall will take care of his _accounts_," which that republican paper had falsely charged that pickering had manipulated corruptly.[ ] expressing the republican temper the "aurora" thus analyzes the new federalist cabinet: "the secretary of the treasury [oliver wolcott]" was "scarcely qualified to hold the second desk in a mercantile counting-house"; the attorney-general [charles lee] was "without talents"; the secretary of the navy [benjamin stoddert] was "a small georgetown politician ... cunning, gossiping, ... of no ... character or ... principles"; the secretary of war [samuel dexter] was no more fit for the place than "his mother"; and marshall, secretary of state, was "more distinguished as a _rhetorician_ and a _sophist_ than as a _lawyer_ and a _statesman_--sufficiently pliant to succeed in a corrupt court, too insincere to command respect, or confidence in a republic." however, said the "aurora," adams was "able to teach mr. marshall 'l'art diplomatique.'"[ ] some of the federalist leaders were not yet convinced, it appears, of marshall's party orthodoxy. pinckney reassures them. writing from virginia, he informs mchenry that "marshall with reluctance accepts, but you may rely on his federalism, & be certain that he will not unite with jefferson & the jacobins."[ ] two months later even the guy fawkes of the adams cabinet declares himself more than satisfied: "if the gentlemen now in office [marshall and dexter] had declined," declares wolcott, "rage, vexation & despair would probably have occasioned the most extravagant conduct[ ] [on the part of the president]." after marshall had been at the head of the cabinet for four months, cabot writes that "mr. wolcott thinks mr. marshall accepted the secretaryship from good motives, and with a view of preserving union, and that he and dexter, by _accepting_, have rendered the nation great service; for, if they had refused, we should have had--_heaven alone knows whom!_ he thinks, however, as all must, that under the present chief they will be disappointed in their hopes, and that if jefferson is president they will probably resign."[ ] in view of "the temper of his [adams's] mind," which, asserts the unfaithful wolcott, was "revolutionary, violent, and vindictive, ... their [marshall's and dexter's] acceptance of their offices is the best evidence of their patriotism.... i consider gen. marshall and mr. dexter as more than secretaries--as state conservators--the value of whose services ought to be estimated, not only by the good they do, but by the mischief they have prevented. if i am not mistaken, however, gen. marshall will find himself out of his proper element."[ ] no sooner was marshall in the secretary's chair than the president hastened to his massachusetts home and his afflicted wife. adams's part in directing the government was done by correspondence.[ ] marshall took up his duties with his characteristically serious, yet nonchalant, patience. the national capital had now been removed to washington; and here, during the long, hot summer of , marshall remained amidst the steaming swamps and forests where the "federal city" was yet to be built.[ ] not till october did he leave his post, and then but briefly and on urgent private business.[ ] the work of the state department during this period was not onerous. marshall's chief occupation at the capital, it would appear, was to act as the practical head of the government; and even his political enemies admitted that he did this well. jefferson's most partial biographer says that "under the firm and steady lead [of marshall and dexter] ... the government soon acquired an order, system, and character which it never had before possessed."[ ] still, enough routine business came to his desk to give the new secretary of state something to do in his own department. office-seeking, which had so annoyed washington, still vexed adams, although but few of these hornets' nests remained for him to deal with. "your knowledge of persons, characters, and circumstances," wrote the president to marshall concerning the applications for the office of united states marshal for maryland, "are so much better than mine, and my confidence in your judgment and impartiality so entire, that i pray you ... give the commission to him whom you may prefer."[ ] adams favored the son of judge chase; but, on the advice of stoddert of maryland, who was secretary of the navy, marshall decided against him: "mr. chase is a young man who has not yet acquired the public confidence and to appoint him in preference to others who are generally known and esteem'd, might be deem'd a mere act of favor to his father. mr. stoddert supposes it ineligible to accumulate, without superior pretensions, offices in the same family." marshall generally trimmed his sails, however, to the winds of presidential preference. he undoubtedly influenced the cabinet, in harmony with the president's wish, to concur in the pardon of isaac williams, convicted, under the jay treaty, of waging war on the high seas against great britain. williams, though sailing under a french commission, was a pirate, and accumulated much wealth from his indiscriminate buccaneering.[ ] but the president wrote marshall that because of "the man's generosity to american prisoners," and "his present poverty and great distress," he desired to pardon williams.[ ] marshall informed the president that "repeated complaints are made to this department of the depredations committed by the spaniards on the american commerce."[ ] the french outrages were continuing; indeed, our naval war with france had been going on for months and spain was aiding the french. an american vessel, the rebecca henry, had been captured by a french privateer. two yankee sailors killed the french prize master in recapturing the vessel, which was taken again by another french sea rover and conveyed into a spanish port. the daring americans were imprisoned and threatened with death. marshall thought "proper to remonstrate and to threaten retaliation if the prisoners should be executed."[ ] the french ship sandwich was captured by captain talbot, an american officer, in a spanish port which spain had agreed to transfer to france. marshall considered this a violation of our treaty with spain. "i have therefore directed the sandwich to be given up to the minister of his catholic majesty,"[ ] he advised the president. the spanish minister thanked marshall for his "justice" and "punctuality."[ ] but talbot would not yield his prize; the united states marshal declined to act. marshall took "measures[ ] which will," he reported to the president, "i presume occasion the delivery of this vessel, unless ... the government has no right to interpose, so far as captors are interested." talbot's attitude perplexed marshall; for, wrote he, "if the executive of the united states cannot restore a vessel captured by a national ship, in violation of the law of nations, ... cause for war may be given by those who, of all others, are, perhaps, most apt to give it, and that department of the government, under whose orders they are plac'd will be unable to correct the mischief."[ ] that picturesque adventurer, bowles, whose plots and activities among the indians had been a thorn to the national government since the early part of washington's administration,[ ] again became annoying. he was stirring up the indians against the spanish possessions in florida and repeated his claim of having the support of great britain. the spaniards eagerly seized on this as another pretext for annoying the american government. measures were taken to break bowles's influence with the indians and to suppress the adventurer's party.[ ] but, although the president was of the opinion that "the military forces ... should join [the spaniards] in an expedition against bowles,"[ ] marshall did not think "that the spaniards require any military aid; nor," continues he, "do i suppose they would be willing to receive it.... american troops in either of the floridas wou'd excite very much their jealousy, especially when no specific requisition for them has been made, and when their own force is entirely competent to the object."[ ] liston, the british minister, assured marshall that the british government had no connection with bowles.[ ] but, irritated by gossip and newspaper stories, he offensively demanded that marshall "meet these insidious calumnies by a flat and formal contradiction."[ ] without waiting for the president's approval, marshall quickly retorted:[ ] the "suspicions ... were not entirely unsupported by appearances." newspaper "charges and surmises ... are always causes of infinite regret" to the government "and wou'd be prevented if the means of prevention existed." but, said marshall, the british government itself was not blameless in that respect; "without going far back you may find examples in your own of the impunity with which a foreign friendly nation [america] may be grossly libel'd." as to the people's hostility to great britain, he tartly reminded the british minister that "in examining the practice of your officers employ'd in the business of impressment, and of your courts of vice admiralty, you will perceive at least some of the causes, by which this temper may have been produc'd."[ ] sweden and denmark proposed to maintain, jointly with the united states, a naval force in the mediterranean to protect their mutual commerce from the barbary powers. marshall declined because of our treaties with those piratical governments; and also because, "until ... actual hostilities shall cease between" france and america, "to station american frigates in the mediterranean would be a hazard, to which our infant navy ought not perhaps to be exposed."[ ] incidents amusing, pathetic, and absurd arose, such as announcements of the birth of princes, to which the secretary of state must prepare answers;[ ] the stranding of foreign sailors on our shores, whose plight we must relieve;[ ] the purchase of jewels for the bey of tunis, who was clamoring for the glittering bribes.[ ] in such fashion went on the daily routine work of his department while marshall was at the head of the cabinet. the only grave matters requiring marshall's attention were the perplexing tangle of the british debts and the associated questions of british impressment of american seamen and interference with american commerce. under the sixth article of the jay treaty a joint commission of five members had been appointed to determine the debts due british subjects. two of the commissioners were british, two americans, and the fifth chosen by lot. chance made this deciding member british also. this commission, sitting at philadelphia, failed to agree. the treaty provided, as we have seen, that the united states should pay such british debts existing at the outbreak of the revolutionary war as the creditors were not able to collect because of the sequestration laws and other "legal impediments," or because, during the operation of these statutes, the debtor had become insolvent. having a majority of the commission, the british members made rules which threw the doors wide open.[ ] "they go the length to make the united states at once the debtor for all the _outstanding_ debts of british subjects contracted before the peace of .... the amount of the claims presented exceeds nineteen millions of dollars."[ ] and this was done by the british representatives with overbearing personal insolence. aside from the injustice of the british contention, this bullying of the american members[ ] made the work of the commission all but impossible. a righteous popular indignation arose. "the construction put upon the treaty by the british commissioners ... will never be submitted to by this country.... the [british] demand ... excites much ill blood."[ ] the american commissioners refused to attend further sittings of the board. thereupon, the british government withdrew its members of the associate commission sitting in london, under the seventh article of the treaty, to pass upon claims of american citizens for property destroyed by the british. the situation was acute. it was made still sharper by the appointment of our second mission to france. for, just as france had regarded jay's mission and treaty as offensive, so now great britain looked upon the ellsworth mission as unfriendly. as a way out of the difficulty, the american government insisted upon articles explanatory of the sixth article of the jay treaty which would define exactly what claims the commission should consider.[ ] the british government refused and suggested a new commission.[ ] this was the condition that faced marshall when he became secretary of state. war with great britain was in the air from other causes and the rupture of the two commissions made the atmosphere thicker. on june , , marshall wrote the president that we ought "still to press an amicable explanation of the sixth article of our treaty"; perhaps during the summer or autumn the british cabinet might feel "more favorable to an accommodation." but he "cannot help fearing that ... the british ministry" intends "to put such a construction on the law of nations ... as to throw into their hands some equivalent to the probable claims of british creditors on the united states."[ ] lord grenville then suggested to rufus king, our minister at london, that the united states pay a gross sum to great britain in settlement of the whole controversy.[ ] marshall wondered whether this simple way out of the tangle could "afford just cause of discontent to france?"[ ] adams thought not. "we surely have a right to pay our honest debts in the manner least inconvenient to ourselves and no foreign power has anything to do with it," said the president. adams, however, foresaw many other difficulties;[ ] but marshall concluded that, on the whole, a gross payment was the best solution in case the british government could not be induced to agree to explanatory articles.[ ] thereupon marshall wrote his memorable instructions to our minister to great britain. in this, as in his letters to talleyrand two years earlier, and in the notable one on british impressment, contraband, and freedom of the seas,[ ] he shows himself an american in a manner unusual at that period. not the least partiality does he display for any foreign country; he treats them with exact equality and demands from all that they shall deal with the american government as a _nation_, independent of and unconnected with any of them.[ ] the united states, writes marshall, "can never submit to" the resolutions adopted by the british commissioners, which put "new and injurious burthens" upon the united states "unwarranted by compact," and to which, if they had been stated in the treaty, "this government never could and never would have assented." unless the two governments can "forget the past," arbitration cannot be successful; it is idle to discuss who committed the first fault, he says, when two nations are trying to adjust their differences. the american commissioners, declares marshall, withdrew from the board because the hostile majority established rules under which "a vast mass of cases never submitted to their consideration" could and would be brought in against american citizens. the proceedings of the british commissioners were not only "totally unauthorized," but "were conducted in terms and in a spirit only calculated to destroy all harmony between the two nations." the cases which the board could consider were distinctly and specifically stated in the fifth article of the treaty. let the two governments agree to an explanation, instead of leaving the matter to wrangling commissioners. but, if minister king finds that the british government will not agree to explanatory articles, he is authorized to substitute "a gross sum in full compensation of all claims made or to be made on this government." it would, of course, be difficult to agree upon the amount. "the extravagant claims which the british creditors have been induced to file," among which "are cases ... so notoriously unfounded that no commissioners retaining the slightest degree of self-respect can establish them; ... others where the debt has been fairly and voluntarily compromised by agreement between creditor and debtor"; others "where the money has been paid in specie, and receipts in full given"; and still others even worse, all composing that "enormous mass of imagined debt," will, says marshall, make it hard to agree on a stated amount.[ ] the british creditors, he asserts, had been and then were proceeding to collect their debts through the american courts, and "had they not been seduced into the opinion that the trouble and expense inseparable from the pursuit of the old debts, might be avoided by one general resort to the united states, it is believed they would have been still more rapidly proceeding in the collection of the very claims, so far as they are just, which have been filed with the commissioners. they meet with no objection, either of law or fact, which are not common to every description of creditors, in every country.... our judges are even liberal in their construction of the th article of the treaty of peace" and have shown "no sort of partiality for the debtors." marshall urges this point with great vigor, and concludes that, if a gross amount can be agreed upon, the american minister must see to it, of course, that this sum is made as small as possible, not "to exceed one million sterling" in any event.[ ] in a private letter, marshall informs king that "the best opinion here is that not more than two million dollars could justly be chargeable to the united states under the treaty."[ ] adams was elated by marshall's letter. "i know not," he wrote, "how the subject could have been better digested."[ ] almost from the exchange of ratifications of the jay compact, impressment of american seamen by the british and their taking from american ships, as contraband, merchandise which, under the treaty, was exempt from seizure, had injured american commerce and increasingly irritated the american people.[ ] the brutality with which the british practiced these depredations had heated still more american resentment, already greatly inflamed.[ ] in june, , marshall's predecessor had instructed king "to persevere ... in denying the right of british men of war to take from our ships of war any men whatever, and from our merchant vessels any americans, or foreigners, or even englishmen."[ ] but the british had disregarded the american minister's protests and these had now been entirely silenced by the break-up of the british debts commissions. nevertheless, marshall directed our minister at the court of st. james to renew the negotiations. in a state paper which, in ability, dignity, and eloquence, suggests his famous jonathan robins speech and equals his memorial to talleyrand, he examines the vital subjects of impressment, contraband, and the rights of neutral commerce. it was a difficult situation that confronted the american secretary of state. he had to meet and if possible modify the offensive, determined, and wholly unjust british position by a statement of principles based on fundamental right; and by an assertion of america's just place in the world. the spirit of marshall's protest to the british government is that america is an independent nation, a separate and distinct political entity, with equal rights, power, and dignity with all other nations[ ]--a conception then in its weak infancy even in america and, apparently, not entertained by great britain or france. these powers seemed to regard america, not as a sovereign nation, but as a sort of subordinate state, to be used as they saw fit for their plans and purposes. but, asserts marshall, "the united states do not hold themselves in any degree responsible to france or to britain for their negotiations with the one or the other of these powers, but are ready to make amicable and reasonable explanations with either.... an exact neutrality ... between the belligerent powers" is the "object of the american government.... separated far from europe, we mean not to mingle in their quarrels.... we have avoided and we shall continue to avoid any ... connections not compatible with the neutrality we profess.... the aggressions, sometimes of one and sometimes of another belligerent power have forced us to contemplate and prepare for war as a probable event.... but this is a situation of necessity, not of choice." france had compelled us to resort to force against her, but in doing so "our preference for peace was manifest"; and now that france makes friendly advances, "america meets those overtures, and, in doing so, only adheres to her pacific system." marshall lays down those principles of international conduct which have become the traditional american policy. reviewing our course during the war between france and great britain, he says: "when the combination against france was most formidable, when, if ever, it was dangerous to acknowledge her new government" and maintain friendly relations with the new republic, "the american government openly declared its determination to adhere to that state of impartial neutrality which it has ever since sought to maintain; nor did the clouds which, for a time, lowered over the fortunes of the [french] republic, in any degree shake this resolution. when victory changed sides and france, in turn, threatened those who did not arrange themselves under her banners, america, pursuing with undeviating step the same steady course," nevertheless made a treaty with great britain; "nor could either threats or artifices prevent its ratification." "at no period of the war," marshall reminds the british government, "has france occupied such elevated ground as at the very point of time when america armed to resist her: triumphant and victorious everywhere, she had dictated a peace to her enemies on the continent and had refused one to britain." on the other hand, "in the reverse of her fortune, when defeated both in italy and on the rhine, in danger of losing holland, before the victory of massena had changed the face of the last campaign, and before russia had receded from the coalition against her, the present negotiation [between america and france] was resolved on. during this pendency," says marshall, "the state of the war has changed, but the conduct of the united states" has not. "our terms remain the same: we still pursue peace. we still embrace it, if it can be obtained without violating our national honor or our national faith; but we will reject without hesitation all propositions which may compromit the one or the other." all this, he declares, "shows how steadily it [the american government] pursues its system [neutrality and peace] without regarding the dangers from the one side or the other, to which the pursuit may be exposed. the present negotiation with france is a part of this system, and ought, therefore, to excite in great britain no feelings unfriendly to the united states." marshall then takes up the british position as to contraband of war. he declares that even under the law of nations, "neutrals have a right to carry on their usual commerce; belligerents have a right to prevent them from supplying the enemy with instruments of war." but the eighteenth article of the treaty itself covered the matter in express terms, and specifically enumerated certain things as contraband and also "generally whatever may serve _directly_ to the equipment of vessels." yet great britain had ruthlessly seized and condemned american vessels regardless of the treaty--had actually plundered american ships of farming material upon the pretense that these articles might, by some remote possibility, be used "to equip vessels." the british contention erased the word "_directly_"[ ] from the express terms of the treaty. "this construction we deem alike unfriendly and unjust," he says. such "garbling a compact ... is to substitute another agreement for that of the parties...." "it would swell the list of contraband to" suit british convenience, contrary to "the laws and usages of nations.... it would prohibit ... articles ... necessary for the ordinary occupations of men in peace" and require "a surrender, on the part of the united states, of rights in themselves unquestionable, and the exercise of which is essential to themselves.... a construction so absurd and so odious ought to be rejected."[ ] articles, "even if contraband," should not be confiscated, insists marshall, except when "they are attempted to be carried to an enemy." for instance, "vessels bound to new orleans and laden with cargoes proper for the ordinary use of the citizens of the united states who inhabit the mississippi and its waters ... cannot be justly said to carry those cargoes to an enemy.... such a cargo is not a just object of confiscation, although a part of it should also be deemed proper for the equipment of vessels, because it is not attempted to be carried to an enemy." on the subject of blockade, marshall questions whether "the right to confiscate vessels bound to a blockaded port ... can be applied to a place not completely invested by land as well as by sea." but waiving "this departure from principle," the american complaint "is that ports not effectually blockaded by a force capable of completely investing them, have yet been declared in a state of blockage, and vessels attempting to enter therein have been seized, and, on that account, confiscated." this "vexation ... may be carried, if not resisted, to a very injurious extent." if neutrals submit to it, "then every port of the belligerent powers may at all times be declared in that [blockaded] state and the commerce of neutrals be thereby subjected to universal capture." but if complete blockage be required, then "the capacity to blockade will be limited by the naval force of the belligerent, and, of consequence, the mischief to neutral commerce can not be very extensive. it is therefore of the last importance to neutrals that this principle be maintained unimpaired." the british courts of vice-admiralty, says marshall, render "unjust decisions" in the case of captures. "the temptation which a rich neutral commerce offers to unprincipled avarice, at all times powerful, becomes irresistible unless strong and efficient restraints be imposed by the government which employs it." if such restraints are not imposed, the belligerent government thereby "causes the injuries it tolerates." just this, says marshall, is the case with the british government. for "the most effectual restraint is an impartial judiciary, which will decide impartially between the parties and uniformly condemn the captor in costs and damages, where the seizure has been made without probable cause." if this is not done, "indiscriminate captures will be made." if an "unjust judge" condemns the captured vessel, the profit is the captor's; if the vessel is discharged, the loss falls upon the owner. yet this has been and still is the indefensible course pursued against american commerce. "the british courts of vice admiralty, whatever may be the case, seldom acquit and when they do, costs and damages for detention are never awarded." marshall demands that the british government shall "infuse a spirit of justice and respect for law into the courts of vice admiralty"--this alone, he insists, can check "their excessive and irritating vexations.... this spirit can only be infused by uniformly discountenancing and punishing those who tarnish alike the seat of justice and the honor of their country, by converting themselves from judges into mere instruments of plunder." and marshall broadly intimates that these courts are corrupt. as to british impressment, "no right has been asserted to impress" americans; "yet they are impressed, they are dragged on board british ships of war with the evidence of citizenship in their hands, and forced by violence there to serve until conclusive testimonials of their birth can be obtained." he demands that the british government stop this lawless, violent practice "by punishing and frowning upon those who perpetrate it. the mere release of the injured, after a long course of service and of suffering, is no compensation for the past and no security for the future.... the united states therefore require positively that their seamen ... be exempt from impressments." even "alien seamen, not british subjects, engaged in our merchant service ought to be equally exempt with citizens from impressments.... britain has no pretext of right to their persons or to their service. to tear them, then, from our possession is, at the same time, an insult and an injury. it is an act of violence for which there exists no palliative." suppose, says marshall, that america should do the things great britain was doing? "should we impress from the merchant service of britain not only americans but foreigners, and even british subjects, how long would such a course of injury, unredressed, be permitted to pass unrevenged? how long would the [british] government be content with unsuccessful remonstrance and unavailing memorials?" or, were america to retaliate by inducing british sailors to enter the more attractive american service, as america might lawfully do, how would great britain look upon it? therefore, concludes marshall, "is it not more advisable to desist from, and to take effectual measures to prevent an acknowledged wrong, than be perseverant in that wrong, to excite against themselves the well founded resentment of america, and to force our government into measures which may possibly terminate in an open rupture?"[ ] thus boldly and in justifiably harsh language did marshall assert american rights as against british violation of them, just as he had similarly upheld those rights against french assault. although france desisted from her lawless practices after adams's second mission negotiated with bonaparte an adjustment of our grievances,[ ] great britain persisted in the ruthless conduct which marshall and his successors denounced until, twelve years later, america was driven to armed resistance. working patiently in his stuffy office amidst the potomac miasma and mosquitoes during the sweltering months, it was marshall's unhappy fate to behold the beginning of the break-up of that great party which had built our ship of state, set it upon the waters, navigated it for twelve tempestuous years, through the storms of domestic trouble and foreign danger.[ ] he was powerless to stay the federalist disintegration. even in his home district marshall's personal strength had turned to water, and at the election of his successor in congress, his party was utterly crushed. "mr. mayo, who was proposed to succeed gen. marshall, lost his election by an immense majority," writes the alert wolcott; "was grossly insulted in public by a brother-in-law of the late senator taylor, and was afterwards wounded by him in a duel. this is a specimen of the political influence of the secretary of state in his own district."[ ] marshall himself was extremely depressed. "ill news from virginia," he writes otis. "to succeed me has been elected by an immense majority one of the most decided democrats[ ] in the union." upon the political horizon marshall beheld only storm and blackness: "in jersey, too, i am afraid things are going badly. in maryland the full force of parties will be tried but the issue i should feel confident would be right if there did not appear to be a current setting against us of which the force is incalculable. there is a tide in the affairs of nations, of parties, and of individuals. i fear that of real americanism is on the ebb."[ ] never, perhaps, in the history of political parties was calm, dispassionate judgment and steady courage needed more than they were now required to avert federalist defeat. yet in all the states revenge, apprehension, and despair blinded the eyes and deranged the councils of the supreme federalist managers.[ ] the voters in the party were confused and angered by the dissensions of those to whom they looked for guidance.[ ] the leaders agreed that jefferson was the bearer of the flag of "anarchy and sedition," captain of the hordes of "lawlessness," and, above all, the remorseless antagonist of nationalism. what should be done "by the friends of order and true liberty to keep the [presidential] chair from being occupied by an enemy [jefferson] of both?" was the question which the distressed federalist politicians asked one another.[ ] in may, hamilton thought that "to support _adams_ and _pinckney_ equally is the only thing that can save us from the fangs of _jefferson_."[ ] yet, six days later, hamilton wrote that "_most_ of the most _influential men_ of that [federalist] party consider him [adams] as a very _unfit_ and _incapable_ character.... my mind is made up. i will never more be responsible for him by any direct support, even though the consequence should be the election of _jefferson_.... if the cause is to be sacrificed to a weak and perverse man, i withdraw from the party."[ ] as the summer wore on, so acrimonious grew the feeling of hamilton's supporters toward the president that they seriously considered whether his reëlection would not be as great a misfortune as the success of the republican party.[ ] although the federalist caucus had agreed to support adams and pinckney equally as the party's candidates for president,[ ] yet the hamiltonian faction decided to place pinckney in the presidential chair.[ ] but, blindly as they groped, their failing vision was still clear enough to discern that the small local leaders in new england, which was the strong federalist section of the country, were for adams;[ ] and that everywhere the party's rank and file, though irritated and perplexed, were standing by the president. his real statesmanship had made an impression on the masses of his party: dayton declared that adams was "the most popular man in the united states."[ ] knox assured the president that "the great body of the federal sentiment confide implicitly in your knowledge and virtue.... they will ... cling to you in preference to all others."[ ] some urged adams to overthrow the hamiltonian cabal which opposed him. "cunning half jacobins assure the president that he can combine the virtuous and moderate men of both parties, and that all our difficulties are owing to an oligarchy which it is in his power to crush, and thus acquire the general support of the nation,"[ ] testifies wolcott. the president heeded this mad counsel. hamilton and his crew were not the party, said adams; they were only a faction and a "british faction" at that.[ ] he would "rip it up."[ ] the justly angered president, it appears, thought of founding a new party, an american party, "a constitutionalist party."[ ] it was said that the astute jefferson so played upon him that adams came to think the engaging but crafty virginian aspired only to be and to be known as the first lieutenant of the massachusetts statesman.[ ] adams concluded that he could make up any federalist loss at the polls by courting the republicans, whose "friendship," wrote ames, "he seeks for himself."[ ] but the republicans had almost recovered from the effect of the x. y. z. disclosures. "the _rabies canina_ of jacobinism has gradually spread ... from the cities, where it was confined to docks and mob, to the country,"[ ] was the tidings of woe that ames sent to gore. the hamiltonian leaders despaired of the continuance of the government and saw "a convulsion of revolution" as the result of "excessive democracy."[ ] the union of all federalist votes was "the only measure by which the government can be preserved."[ ] but federalist union! as well ask shattered glass to remould itself! the harmonious and disciplined republicans were superbly led. jefferson combined their battle-cries of the last two years into one mighty appeal--simple, affirmative, popular. peace, economy, "freedom of the press, freedom of religion, trial by jury, ... no standing armies," were the issues he announced, together with the supreme issue of all, states' rights. upon this latter doctrine jefferson planted all the republican guns and directed their fire on "centralization" which, said he, would "monarchise" our government and make it "the most corrupt on earth," with increased "stock-jobbing, speculating, plundering, office-holding, and office-hunting."[ ] the federalists could reply but feebly. the tax-gatherer's fingers were in every man's pockets; and adams had pardoned the men who had resisted the collectors of tribute. the increased revenue was required for the army and navy, which, thought the people, were worse than needless[ ] if there were to be no war and the president's second mission made hostilities improbable (they had forgotten that this very preparation had been the principal means of changing the haughty attitude of france). the alien and sedition laws had infuriated the "foreign" voters[ ] and alarmed thousands of american-born citizens. even that potent bribe of free institutions, the expectation of office, could no longer be employed effectively with the party workers, who, testifies ebenezer huntington, were going over "to jefferson in hopes to partake of the loaves and fishes, which are to be distributed by the new president."[ ] the federalist leaders did nothing, therefore, but write letters to one another denouncing the "jacobins" and prophesying "anarchy." "behold france--what is theory here is fact there."[ ] even the tractable mchenry was disgusted with his stronger associates. "their conduct," said he, "is tremulous, timid, feeble, deceptive & cowardly. they write private letters. to whom? to each other. but they do nothing.... if the party recover its pristine energy & splendor, shall i ascribe it to such cunning, paltry, indecisive, backdoor conduct?"[ ] what had become of the french mission?[ ] would to god it might fail! that outcome might yet save the federalist fortunes. "if mr. marshall has any [news of the second french mission] beg him to let it out," implored chauncey goodrich.[ ] but marshall had none for public inspection. the envoys' dispatches of may ,[ ] which had reached him nearly seven weeks afterward, were perplexing. indeed, marshall was "much inclined to think that ... the french government may be inclined to protract it [the negotiation] in the expectation that events in america[ ] may place them on higher ground than that which they now occupy."[ ] to hamilton, he cautiously wrote that the dispatches contained nothing "on which a positive opinion respecting the result of that negotiation can be formed."[ ] but he told the president that he feared "the impression which will probably be made by the new york election,"[ ] and that european military developments might defeat the mission's purpose. he advised adams to consider what then should be done. should "hostilities against france with the exception of their west india privateers ... be continued if on their part a change of conduct shall be manifest?"[ ] adams was so perturbed that he asked marshall whether, in case the envoys returned without a treaty, congress ought not to be asked to declare war, which already it had done in effect. for, said adams, "the public mind cannot be held in a state of suspense; public opinion must be always a decided one whether right or not."[ ] marshall counseled patience and moderation. indeed, he finally informed adams that he hoped for an adjustment: "i am greatly disposed to think," he advised the president, "that the present [french] government is much inclined to correct, at least in part, the follies of the past. of these, none were perhaps more conspicuous or more injurious to the french nation, than their haughty and hostile conduct to neutrals. considerable retrograde steps in this respect have already been taken, and i expect the same course will be continued." if so, "there will exist no cause for war, but to obtain compensation for past injuries"; and this, marshall is persuaded, is not "a sufficient motive" for war.[ ] to others, however, marshall was apprehensive: "it is probable that their [the french] late victories and the hope which many of our papers [republican] are well calculated to inspire, that america is disposed once more to crouch at her [france's] feet may render ineffectual our endeavors to obtain peace."[ ] but the second american mission to france had dealt with bonaparte himself, who was now first consul. the man on horseback had arrived, as marshall had foreseen; a statesman as well as a soldier was now the supreme power in france. also, as we have seen, the american government had provided for an army and was building a navy which, indeed, was even then attacking and defeating french ships. "america in arms was treated with some respect," as marshall expresses it.[ ] at any rate, the american envoys did not have to overcome the obstacles that lay in the way two years earlier and the negotiations began without difficulty and proceeded without friction. finally a treaty was made and copies sent to marshall, october , .[ ] the republicans were rejoiced; the federalist politicians chagrined.[ ] hamilton felt that in "the general politics of the world" it "is a make-weight in the wrong scale," but he favored its ratification because "the contrary ... would ... utterly ruin the federal party," and "moreover it is better to close the thing where it is than to leave it to a jacobin to do much worse."[ ] marshall also advised ratification, although he was "far, very far, from approving"[ ] the treaty. the federalists in the senate, however, were resolved not to ratify it; they were willing to approve only with impossible amendments. they could not learn the president's opinion of this course; as to that, even marshall was in the dark. "the secretary of state knows as little of the intentions of the president as any other person connected with the government."[ ] finally the senate rejected the convention; but it was so "extremely popular," said the republicans, that the federalist senators were "frightened" to "recant."[ ] they reversed their action and approved the compact. the strongest influence to change their attitude, however, was not the popularity of the treaty, but the pressure of the mercantile interests which wanted the business-destroying conflict settled.[ ] the hamiltonian group daily became more wrathful with the president. in addition to what they considered his mistakes of policy and party blunders, adams's charge that they were a "british faction" angered them more and more as the circulation of it spread and the public credited it. even "general m[arshall] said that the hardest thing for the federalists to bear was the charge of british influence."[ ] that was just what the "jacobins" had been saying all along.[ ] "if this cannot be counteracted, our characters are the sacrifice," wrote hamilton in anger and despair.[ ] adams's adherents were quite as vengeful against his party enemies. the rank and file of the federalists were more and more disgusted with the quarrels of the party leaders. "i cannot describe ... how broken and scattered your federal friends are!" lamented troup. "we have no rallying-point; and no mortal can divine where and when we shall again collect our strength.... shadows, clouds, and darkness rest on our future prospects."[ ] the "aurora" chronicles that "the disorganized state of the anti-republican [federalist] party ... is scarcely describable."[ ] marshall, alone, was trusted by all; a faith which deepened, as we shall see, during the perplexing months that follow. he strove for federalist union, but without avail. even the most savage of the president's party enemies felt that "there is not a man in the u. s. of better intentions [than marshall] and he has the confidence of all good men--no man regrets more than he does the disunion which has taken place and no one would do more to heal the wounds inflicted by it. in a letter ... he says 'by union we can securely maintain our ground--without it we must sink & with us all sound correct american principle.' his efforts will ... prove ineffectual."[ ] it seems certain, then, that hamilton did not consult the one strong man in his party who kept his head in this hour of anger-induced madness. yet, if ever any man needed the advice of a cool, far-seeing mind, lighted by a sincere and friendly heart, hamilton required it then. and marshall could and would have given it. but the new york federalist chieftain conferred only with those who were as blinded by hate as he was himself. at last, in the midst of an absurd and pathetic confusion of counsels,[ ] hamilton decided to attack the president, and, in october, wrote his fateful and fatal tirade against adams.[ ] it was an extravaganza of party folly. it denounced adams's "extreme egotism," "terrible jealousy," "eccentric tendencies," "violent rage"; and questioned "the solidity of his understanding." hamilton's screed went back to the revolution to discover faults in the president. every act of his administration was arraigned as a foolish or wicked mistake. this stupid pamphlet was not to be made public, but to be circulated privately among the federalist leaders in the various states. the watchful burr secured a copy[ ] and published broadcast its bitterest passages. the republican politicians shook with laughter; the republican masses roared with glee.[ ] the rank and file of the federalists were dazed, stunned, angered; the party leaders were in despair. thus exposed, hamilton made public his whole pamphlet. although its purpose was to further the plan to secure for pinckney more votes than would be given adams, it ended with the apparent advice to support both. absurd conclusion! there might be intellects profound enough to understand why it was necessary to show that adams was not fit to be president and yet that he should be voted for; but the mind of the average citizen could not fathom such ratiocination. hamilton's influence was irreparably impaired.[ ] the "washington federalist" denounced his attack as "the production of a disappointed man" and declared that adams was "much his superior as a statesman."[ ] the campaign was a havoc of virulence. the federalists' hatred for one another increased their fury toward the compact republicans, who assailed their quarreling foes with a savage and unrestrained ferocity. the newspapers, whose excesses had whipped even the placid franklin into a rage a few years before, now became geysers spouting slander, vituperation, and unsavory[ ] insinuations. "the venal, servile, base and stupid"[ ] "newspapers are an overmatch for any government," cried ames. "they will first overawe and then usurp it."[ ] and noah webster felt that "no government can be durable ... under the licentiousness of the press that now disgraces our country."[ ] discordant federalists and harmonious republicans resorted to shameful methods.[ ] "never ... was there such an election in america."[ ] as autumn was painting the new england trees, adams, still tarrying at his massachusetts home, wrote marshall to give his "sentiments as soon as possible in writing" as to what the president should say to congress when it met december .[ ] three days later, when his first request was not yet halfway to washington, adams, apparently forgetful of his first letter, again urged marshall to advise him as president in regard to his forthcoming farewell address to the national legislature.[ ] [illustration: _statue of john marshall_ _by w. w. story, at the capitol, washington, d. c._] marshall not only favored the president with his "sentiments"--he wrote every word of the speech which adams delivered to congress and sent it to the distressed chief magistrate in such haste that he did not even make a copy.[ ] this presidential address, the first ever made to congress in washington, was delivered exactly as marshall wrote it, with a change of only one word "much" for "such" and the omission of an adjective "great."[ ] the address is strong on the necessity for military and naval preparation. it would be "a dangerous imprudence to abandon those measures of self-protection ... to which ... violence and the injustice of others may again compel us to resort.... seasonable and systematic arrangements ... for a defensive war" are "a wise and true economy." the navy is described as particularly important, coast defenses are urged, and the manufacture of domestic arms is recommended in order to "supercede the necessity of future importations." the extension of the national judiciary is pressed as of "primary importance ... to the public happiness."[ ] the election, at last, was over. the republicans won, but only by a dangerously narrow margin. indeed, outside of new york, the federalists secured more electoral votes in than in the election of adams four years earlier.[ ] the great constructive work of the federalist party still so impressed conservative people; the mercantile and financial interests were still so well banded together; the federalist revival of , brought about by marshall's dispatches, was, as yet, so strong; the genuine worth of adams's statesmanship[ ] was so generally recognized in spite of his unhappy manner, that it would seem as though the federalists might have succeeded but for the quarrels of their leaders and burr's skillful conduct of the republican campaign in new york. jefferson and burr each had seventy-three votes for president. under the constitution, as it stood at that time, the final choice for president was thus thrown into the house of representatives.[ ] by united and persistent effort, it was possible for the federalists to elect burr, or at least prevent any choice and, by law, give the presidency to one of their own number until the next election. this, jefferson advises burr, "they are strong enough to do."[ ] the federalists saw their chance; the republicans realized their danger.[ ] jefferson writes of the "great dismay and gloom on the republican gentlemen here and equal exultation on the federalists who openly declare they will prevent an election."[ ] this "opens upon us an abyss, at which every sincere patriot must shudder."[ ] although hamilton hated burr venomously, he advised the federalist managers in washington "to throw out a lure for him, in order to tempt him to start for the plate, and then lay the foundation of dissension between" him and jefferson.[ ] the federalists, however, already were turning to burr, not according to hamilton's unworthy suggestion, but in deadly earnest. at news of this, the fast-weakening new york federalist chieftain became frantic. he showered letters upon the party leaders in congress, and upon all who might have influence, appealing, arguing, persuading, threatening.[ ] but the federalists in congress were not to be influenced, even by the once omnipotent hamilton. "the federalists, almost with one mind, from every quarter of the union, say elect burr" because "they must be disgraced in the estimation of the people if they vote for jefferson having told them that he was a man without religion, the writer of the letter to mazzei, a coward, &c., &c."[ ] hamilton's fierce warnings against burr and his black prophecies of "the _cataline_ of america"[ ] did not frighten them. they knew little of burr, personally, and the country knew less. what was popularly known of this extraordinary man was not unattractive to the federalists. burr was the son of the president of princeton and the grandson of the celebrated jonathan edwards, the greatest theologian america had produced. he had been an intrepid and efficient officer in the revolutionary war, and an able and brilliant senator of the united states. he was an excellent lawyer and a well-educated, polished man of the world. he was a politician of energy, resourcefulness, and decision. and he was a practical man of affairs. if he were elected by federalist votes, the fury with which jefferson and his friends were certain to assail burr[ ] would drive that practical politician openly into their camp; and, as president, he would bring with him a considerable republican following. thus the federalists would be united and strengthened and the republicans divided and weakened.[ ] this was the reasoning which drew and bound the federalists together in their last historic folly; and they felt that they might succeed. "it is ... certainly within the compass of possibility that burr may ultimately obtain nine states," writes bayard.[ ] in addition to the solid federalist strength in the house, there were at least three republican members, two corrupt and the other light-minded, who might by "management" be secured for burr.[ ] the federalist managers felt that "the high destinies ... of this united & enlightened people are up";[ ] and resolved upon the hazard. thus the election of burr, or, at least, a deadlock, faced the republican chieftain. at this critical hour there was just one man who still had the confidence of all federalists from adams to hamilton. john marshall, secretary of state, had enough influence to turn the scales of federalist action. hamilton approached marshall indirectly at first. "you may communicate this letter to _marshall_," he instructed wolcott, in one of his most savage denunciations of burr.[ ] wolcott obeyed and reported that marshall "has yet expressed no opinion."[ ] thereupon hamilton wrote marshall personally. this letter is lost; but undoubtedly it was in the same vein as were those to wolcott, bayard, sedgwick, morris, and other federalists. but hamilton could not persuade marshall to throw his influence to jefferson. the most marshall would do was to agree to keep hands off. "to mr. jefferson," replies marshall, "whose political character is better known than that of mr. burr, i have felt almost insuperable objections. his foreign prejudices seem to me totally to unfit him for the chief magistracy of a nation which cannot indulge those prejudices without sustaining deep and permanent injury. "in addition to this solid and immovable objection, mr. jefferson appears to me to be a man, who will embody himself with the house of representatives.[ ] by weakening the office of president, he will increase his personal power. he will diminish his responsibility, sap the fundamental principles of the government, and become the leader of that party which is about to constitute the majority of the legislature. the morals of the author of the letter to mazzei[ ] cannot be pure.... "your representation of mr. burr, with whom i am totally unacquainted, shows that from him still greater danger than even from mr. jefferson may be apprehended. such a man as you describe is more to be feared, and may do more immediate, if not greater mischief. "believing that you know him well, and are impartial, my preference would certainly not be for him, but i can take no part in this business. i cannot bring myself to aid mr. jefferson. perhaps respect for myself should, in my present situation, deter me from using any influence (if, indeed i possessed any) in support of either gentleman. "although no consideration could induce me to be the secretary of state while there was a president whose political system i believed to be at variance with my own; yet this cannot be so well known to others, and it might be suspected that a desire to be well with the successful candidate had, in some degree, governed my conduct."[ ] marshall had good personal reasons for wishing burr to be elected, or at least that a deadlock should be produced. he did not dream that the chief justiceship was to be offered to him; his law practice, neglected for three years, had passed into other hands; the head of the cabinet was then the most important[ ] office in the government, excepting only the presidency itself; and rumor had it that marshall would remain secretary of state in case burr was chosen as chief magistrate. if the tie between jefferson and burr were not broken, marshall might even be chosen president.[ ] "i am rather inclined to think that mr. burr will be preferred.... general marshall will then remain in the department of state; but if mr. jefferson be chosen, mr. marshall will retire," writes pickering.[ ] but if marshall cherished the ambition to continue as secretary of state, as seems likely, he finally stifled it and stood aloof from the struggle. it was a decision which changed marshall's whole life and affected the future of the republic. had marshall openly worked for burr, or even insisted upon a permanent deadlock, it is reasonably certain that the federalists would have achieved one of their alternate purposes. although marshall refrained from assisting the federalists in their plan to elect burr, he did not oppose it. the "washington federalist," which was the administration organ[ ] in the capital, presented in glowing terms the superior qualifications of burr over jefferson for the presidency, three weeks after marshall's letter to hamilton.[ ] the republicans said that marshall wrote much that appeared in this newspaper.[ ] if he was influential with the editor, he did not exercise his power to exclude the paper's laudation of the new york republican leader. it was reported that marshall had declared that, in case of a deadlock, congress "may appoint a presidt. till another election is made."[ ] the rumor increased republican alarm and fanned republican anger. from richmond came the first tidings of the spirit of popular resistance to "such a usurpation,"[ ] even though it might result in the election of marshall himself to the presidency. if they could not elect burr, said jefferson, the federalists planned to make marshall or jay the chief executive by a law to be passed by the expiring federalist congress.[ ] monroe's son-in-law, george hay, under the _nom de guerre_ of "hortensius," attacked marshall in an open letter in the "richmond examiner," which was copied far and wide in the republican press. whether congress will act on marshall's opinion, says hay, "is a question which has already diffused throughout america anxiety and alarm; a question on the decision of which depends not only the peace of the nation, but the existence of the union." hay recounts the many indications of the federalists' purpose and says: "i understand that you, sir, have not only examined the constitution, but have given an opinion in exact conformity with the wishes of your party." he challenges marshall to "come forward ... and defend it." if a majority of the house choose burr the people will submit, says hay, because such an election, though contrary to their wishes, would be constitutional. but if, disregarding the popular will and also violating the constitution, congress "shall elect a stranger to rule over us, peace and union are driven from the land.... the usurpation ... will be instantly and firmly repelled. the government will be at an end."[ ] although the "washington federalist" denounced as "a lie"[ ] the opinion attributed to him, marshall, personally, paid no attention to this bold and menacing challenge. but jefferson did. after waiting a sufficient time to make sure that this open threat of armed revolt expressed the feeling of the country, he asserted that "we thought best to declare openly and firmly, one & all, that the day such an act passed, the middle states would arm, & that no such usurpation, even for a single day, should be submitted to."[ ] the republicans determined not only to resist the "usurpation ... by arms," but to set aside the constitution entirely and call "a convention to reorganize and amend the government."[ ] the drums of civil war were beating. between washington and richmond "a chain of expresses" was established, the messengers riding "day and night."[ ] in maryland and elsewhere, armed men, wrought up to the point of bloodshed, made ready to march on the rude capital, sprawling among the potomac hills and thickets. threats were openly made that any man appointed president by act of congress, pursuant to marshall's reputed opinion, would be instantly assassinated. the governor of pennsylvania prepared to lead the militia into washington by the d of march.[ ] to this militant attitude jefferson ascribed the final decision of the federalists to permit his election. but no evidence exists that they were intimidated in the least, or in any manner influenced, by the ravings of jefferson's adherents. on the contrary, the federalists defied and denounced the republicans and met their threats of armed interference with declarations that they, too, would resort to the sword.[ ] the proof is overwhelming and decisive that nothing but burr's refusal to help the federalists in his own behalf,[ ] his rejection of their proposals,[ ] and his determination, if chosen, to go in as a republican untainted by any promises;[ ] and, on the other hand, the assurances which jefferson gave federalists as to offices and the principal federalist policies--neutrality, the finances, and the navy[ ]--only all of these circumstances combined finally made jefferson president. indeed, so stubborn was the opposition that, in spite of his bargain with the federalists and burr's repulsion of their advances, nearly all of them, through the long and thrillingly dramatic days and nights of balloting,[ ] with the menace of physical violence hanging over them, voted against jefferson and for burr to the very end. the terms concluded with jefferson, enough federalists cast blank ballots[ ] to permit his election; and so the curtain dropped on this comedy of shame.[ ] "thus has ended the most wicked and absurd attempt ever tried by the federalists," said the innocent gallatin.[ ] so it came about that the party of washington, as a dominant and governing force in the development of the american nation, went down forever in a welter of passion, tawdry politics, and disgraceful intrigue. all was lost, including honor. but no! all was not lost. the judiciary remained. the newly elected house and president were republican and in two years the senate also would be "jacobin"; but no republican was as yet a member of the national judiciary. let that branch of the government be extended; let new judgeships be created, and let new judges be made while federalists could be appointed and confirmed, so that, by means, at least, of the national courts, states' rights might be opposed and retarded, and nationalism defended and advanced--thus ran the thoughts and the plans of the federalist leaders. adams, in the speech to congress in december of the previous year, had urged the enactment of a law to this end as "indispensably necessary."[ ] in the president's address to the expiring federalist congress on december , , which marshall wrote, the extension of the national judiciary, as we have seen, was again insistently urged.[ ] upon that measure, at least, adams and all federalists agreed. "permit me," wrote general gunn to hamilton, "to offer for your consideration, the policy of the federal party _extending the influence of our judiciary_; if neglected by the federalists the ground will be occupied by the enemy, the very next session of congress, and, sir, we shall see ---- and many other scoundrels placed on the seat of justice."[ ] indeed, extension of the national judiciary was now the most cherished purpose of federalism.[ ] a year earlier, after adams's first recommendation of it, wolcott narrates that "the steady men" in the senate and house were bent upon it, because "there is no other way to combat the state opposition [to national action] but by an efficient and extended organization of judges."[ ] two weeks after congress convened, roger griswold of connecticut reported the eventful bill to carry out this federalist plan.[ ] it was carefully and ably drawn and greatly widened the practical effectiveness of the national courts. the supreme court was reduced, after the next vacancy, to five members--to prevent, said the republicans, the appointment of one of their party to the nation's highest tribunal.[ ] many new judgeships were created. the justices of the supreme court, who had sat as circuit judges, were relieved of this itinerant labor and three circuit judges for each circuit were to assume these duties. at first, even the watchful and suspicious jefferson thought that "the judiciary system will not be pushed, as the appointments, if made, by the present administration, could not fall on those who create them."[ ] but jefferson underestimated the determination of the federalists. because they felt that the bill would "greatly extend the judiciary power and of course widen the basis of government," they were resolved, writes rutledge, to "profit of our shortlived majority, and do as much good as we can before the end of this session"[ ] by passing the judiciary bill. in a single week jefferson changed from confidence to alarm. after all, he reflected, adams could fill the new judgeships, and these were life appointments. "i dread this above all the measures meditated, because appointments in the nature of freehold render it difficult to undo what is done,"[ ] was jefferson's second thought. the republicans fought the measure, though not with the vigor or animosity justified by the political importance they afterwards attached to it. among the many new districts created was an additional one in virginia. the representatives from that state dissented; but, in the terms of that period, even their opposition was not strenuous. they said that, in virginia, litigation was declining instead of increasing. "at the last term the docket was so completely cleared in ... ten days ... that the court ... had actually decided on several [suits] returnable to the ensuing term."[ ] that, replied the federalists, was because the courts were too far away from the citizens. as for the national revenues, they could be collected only through national tribunals; for this purpose,[ ] two federal courts in virginia, as provided by the bill, were essential. but, of course, sneered the federalists, "virginia would be well satisfied with one court in preference to two or with no court whatever in preference to one."[ ] but there was a defect in the bill, intimated the virginia republicans, that affected tenants and landowners of the northern neck. a clause of section thirteen gave the newly established national court jurisdiction of all causes arising under the constitution where original or exclusive jurisdiction was not conferred upon the supreme court or admiralty courts.[ ] the national court of the new virginia district was to be held at fredericksburg. thus all suits for quitrents or other claims against those holding their lands under the fairfax title could be brought in this near-by national court, instead of in state courts. this criticism was so attenuated and so plainly based on the assumption that the state courts would not observe the law in such actions, that it was not pressed with ardor even by the impetuous and vindictive giles. but nicholas went so far as to move that the jurisdiction of national courts should be limited to causes exceeding five hundred dollars. this would cut out the great mass of claims which the present holders of the fairfax title might lawfully have against tenants or owners. the marshalls were the fairfax assignees, as we have seen. no republican, however, mentioned them in debate; but some one procured the insertion in the record of an insinuation which nobody made on the floor. in brackets, the "annals," after the brief note of nicholas's objection, states: "[it is understood that the present assignees of the claims of lord fairfax, are general marshall, general lee, and a third individual and that they maintain their claims under the british treaty.]"[ ] for three weeks the debate in the house dragged along. republican opposition, though united, was languid.[ ] at last, without much republican resistance, the bill passed the house on january , , and reached the senate the next day.[ ] two weeks later the senate republicans moved a substitute providing for fewer circuits, fewer judges, and a larger supreme court, the members of which were to act as circuit judges as formerly.[ ] it was defeated by a vote of to .[ ] the next day the bill was passed by a vote of to .[ ] when the debate began, the national judiciary was without a head. ellsworth, broken in health, had resigned. adams turned to jay, the first chief justice, and, without asking his consent, reappointed him. "i have nominated you to your old station,"[ ] wrote the president. "this is as independent of the inconstancy of the people, as it is of the will of a president." but jay declined.[ ] some of the federalist leaders were disgruntled at jay's appointment. "either judge paterson [of new jersey] or general pinckney ought to have been appointed; but both these worthies were your friends,"[ ] gunn reported to hamilton. the republicans were relieved by jay's nomination--they "were afraid of something worse."[ ] then, on january , , with no herald announcing the event, no trumpet sounding, suddenly, and without previous notification even to himself, john marshall was nominated as chief justice of the united states a few weeks before the federalists went out of power forever. his appointment was totally unexpected. it was generally thought that judge paterson was the logical successor to ellsworth.[ ] marshall, indeed, had recommended his selection.[ ] the letters of the federalist leaders, who at this period were lynx-eyed for any office, do not so much as mention marshall's name in connection with the position of chief justice. doubtless the president's choice of marshall was influenced by the fact that his "new minister, marshall, did all to" his "entire satisfaction."[ ] federalist politicians afterward caviled at this statement of adams. it was quite the other way around, they declared. "every one who knew that great man [marshall] knew that he possessed to an extraordinary degree the faculty of putting his own ideas into the minds of others, unconsciously to them. the secret of mr. adams's satisfaction [with marshall] was, that he obeyed his secretary of state without suspecting it."[ ] the president gave marshall's qualifications as the reason of his elevation. boudinot reported to adams that the new jersey bar hailed with "the greatest pleasure" a rumor that "the office of chief justice ... may be filled by" adams himself "after the month of march next." the president, who admitted that he was flattered, answered: "i have already, by the nomination of a gentleman in the full vigor of middle age, in the full habits of business, and whose reading of the science is fresh in his head,[ ] to this office, put it wholly out of my power as it never was in my hopes or wishes."[ ] marshall's appointment as chief justice was not greeted with applause from any quarter; there was even a hint of federalist resentment because paterson had not been chosen. "i see it denied in your paper that mr. marshall was nominated chief justice of the u.s. the fact is so and he will without doubt have the concurrence of the senate, tho' some hesitation was at first expressed from respect for the pretensions of mr. paterson."[ ] the republican politicians were utterly indifferent; and the masses of both parties neither knew nor cared about marshall's elevation. the republican press, of course, criticized the appointment, as it felt bound to attack any and every thing, good or bad, that the federalists did. but its protests against marshall were so mild that, in view of the recklessness of the period, this was a notable compliment. "the vacant chief justiceship is to be conferred on john marshall, one time general, afterwards ambassador to x. y. and z., and for a short time incumbent of the office of secretary of state.... who is to receive the salary of the secretary of state, after mr. marshall's resignation, we cannot foretell, because the wisdom of our wise men surpasseth understanding."[ ] some days later the "aurora," in a long article, denounced the judiciary law as a device for furnishing defeated federalist politicians with offices,[ ] and declared that the act would never be "carried into execution, ... unless" the federalists still meant to usurp the presidency. but it goes on to say:-- "we cannot permit ourselves to believe that _john marshall_ has been called to the bench to foster such a plot.... still, how can we account for the strange mutations which have passed before us--marshall for a few weeks secretary of state ascends the bench of the chief justice."[ ] the principal objection of the republican newspapers to marshall, however, was that he, "before he left the office [of secretary of state], made provision for all the federal printers to the extent of his power.... he employed the _aristocratic presses alone_ to publish laws ... for ... one year."[ ] only the dissipated and venomous callender, from his cell in prison, displayed that virulent hatred of marshall with which an increasing number of jefferson's followers were now obsessed. "we are to have that precious acquisition john marshall as chief justice.... the very sound of this man's name is an insult upon truth and justice"; and the dissolute scribbler then pours the contents of his ink-pot over marshall's x. y. z. dispatches, bespatters his campaign for election to congress, and continues thus:-- "john adams first appointed john jay in the room of ellsworth. a strong suspicion exists that john did this with the previous certainty that john jay would refuse the nomination. it was then in view to name john marshall: first, because president jefferson will not be able to turn him out of office, unless by impeachment; and in the second place that the faction [federalist party] who burnt the war office might, with better grace, attempt, forsooth, to set him up as a sort of president himself. _sus ad minervam!_"[ ] that the voice of this depraved man, so soon to be turned against his patron jefferson, who had not yet cast him off, was the only one raised against marshall's appointment to the highest judicial office in the nation, is a striking tribute, when we consider the extreme partisanship and unrestrained abuse common to the times. marshall himself, it appears, was none too eager to accept the position which ellsworth had resigned and jay refused; the senate delayed the confirmation of his nomination;[ ] and it was not until the last day of the month that his commission was executed. on january , , the president directed dexter "to execute the office of secretary of state so far as to affix the seal of the united states to the inclosed commission to the present secretary of state, john marshall, of virginia, to be chief justice of the united states, and to certify in your own name on the commission as executing the office of secretary of state _pro hac vice_."[ ] it was almost a week before marshall formally acknowledged and accepted the appointment. "i pray you to accept my grateful acknowledgments for the honor conferred on me in appointing me chief justice of the united states. this additional and flattering mark of your good opinion has made an impression on my mind which time will not efface. i shall enter immediately on the duties of the office, and hope never to give you occasion to regret having made this appointment."[ ] marshall's acceptance greatly relieved the president, who instantly acknowledged his letter: "i have this moment received your letter of this morning, and am happy in your acceptance of the office of chief justice."[ ] who should be secretary of state for the remaining fateful four weeks? adams could think of no one but marshall, who still held that office although he had been appointed, confirmed, and commissioned as chief justice. therefore, wrote adams, "the circumstances of the times ... render it necessary that i should request and authorize you, as i do by this letter, to continue to discharge all the duties of secretary of state until ulterior arrangements can be made."[ ] thus marshall was at the same time chief justice of the supreme court and secretary of state. thus for the second time these two highest appointive offices of the national government were held simultaneously by the same man.[ ] he drew but one salary, of course, during this period, that of chief justice,[ ] the salary of secretary of state remaining unpaid. the president rapidly filled the newly created places on the federal bench. marshall, it appears, was influential in deciding these appointments. "i wrote for you to dexter, requesting him to show it to marshall,"[ ] was ames's reassuring message to an aspirant to the federal bench. with astounding magnanimity or blindness, adams bestowed one of these judicial positions upon wolcott, and marshall "transmits ... the commission ... with peculiar pleasure. permit me," he adds, "to express my sincere wish that it may be acceptable to you." his anxiety to make peace between adams and wolcott suggests that he induced the president to make this appointment. for, says marshall, "i will allow myself the hope that this high and public evidence, given by the president, of his respect for your services and character, will efface every unpleasant sensation respecting the past, and smooth the way to a perfect reconciliation."[ ] wolcott "cordially thanks" marshall for "the obliging expressions of" his "friendship." he accepts the office "with sentiments of gratitude and good will," and agrees to marshall's wish for reconciliation with adams, "not only without reluctance or reserve but with the highest satisfaction."[ ] thus did marshall end one of the feuds which so embarrassed the administration of john adams.[ ] until nine o'clock[ ] of the night before jefferson's inauguration, adams continued to nominate officers, including judges, and the senate to confirm them. marshall, as secretary of state, signed and sealed the commissions. although adams was legally within his rights, the only moral excuse for his conduct was that, if it was delayed, jefferson would make the appointments, control the national judiciary, and through it carry out his states' rights doctrine which the federalists believed would dissolve the union; if adams acted, the most the republicans could do would be to oust his appointees by repealing the law.[ ] the angry but victorious republicans denounced adams's appointees as "midnight judges." it was a catchy and clever phrase. it flew from tongue to tongue, and, as it traveled, it gathered force and volume. soon a story grew up around the expression. levi lincoln, the incoming attorney-general, it was said, went, jefferson's watch in his hand, to marshall's room at midnight and found him signing and sealing commissions. pointing to the timepiece, lincoln told marshall that, by the president's watch, the th of march had come, and bade him instantly lay down his nefarious pen; covered with humiliation, marshall rose from his desk and departed.[ ] this tale is, probably, a myth. jefferson never spared an enemy, and marshall was his especial aversion. yet in his letters denouncing these appointments, while he savagely assails adams, he does not mention marshall.[ ] jefferson's "anas," inspired by marshall's "life of washington," omits no circumstance, no rumor, no second, third, or fourth hand tale that could reflect upon an enemy. yet he never once refers to the imaginary part played by marshall in the "midnight judges" legend.[ ] jefferson asked marshall to administer to him the presidential oath of office on the following day. considering his curiously vindictive nature, it is unthinkable that jefferson would have done this had he sent his newly appointed attorney-general, at the hour of midnight, to stop marshall's consummation of adams's "indecent"[ ] plot. indeed, in the flush of victory and the multitude of practical and weighty matters that immediately claimed his entire attention, it is probable that jefferson never imagined that marshall would prove to be anything more than the learned but gentle jay or the able but innocuous ellsworth had been. also, as yet, the supreme court was, comparatively, powerless, and the republican president had little cause to fear from it that stern and effective resistance to his anti-national principles, which he was so soon to experience. nor did the federalists themselves suspect that the virginia lawyer and politician would reveal on the supreme bench the determination, courage, and constructive genius which was presently to endow that great tribunal with life and strength and give to it the place it deserved in our scheme of government. in the opinions of those who thought they knew him, both friend and foe, marshall's character was well understood. all were agreed as to his extraordinary ability. no respectable person, even among his enemies, questioned his uprightness. the charm of his personality was admitted by everybody. but no one had, as yet, been impressed by the fact that commanding will and unyielding purpose were marshall's chief characteristics. his agreeable qualities tended to conceal his masterfulness. who could discern in this kindly person, with "lax, lounging manners," indolent, and fond of jokes, the heart that dared all things? and all overlooked the influence of marshall's youth, his determinative army life, his experience during the disintegrating years after independence was achieved and before the constitution was adopted, the effect of the french revolution on his naturally orderly mind, and the part he had taken and the ineffaceable impressions necessarily made upon him by the tremendous events of the first three administrations of the national government. thus it was that, unobtrusively and in modest guise, marshall took that station which, as long as he lived, he was to make the chief of all among the high places in the government of the american nation. footnotes: [ ] adams to mchenry, may , ; steiner, . [ ] mchenry to john mchenry, may , ; gibbs, ii, . [ ] according to mchenry, adams's complaints were that the secretary of war had opposed the sending of the second mission to france, had not appointed as captain a north carolina elector who had voted for adams, had "eulogized general washington ... attempted to praise hamilton," etc. (mchenry to john mchenry, may , ; gibbs, ii, ; and see hamilton's "public conduct, etc., of john adams"; hamilton: _works_: lodge, vii, - .) [ ] gore to king, may , ; king, iii, - ; also sedgwick to hamilton, may , ; _works_: hamilton, vi, - . [ ] adams to pickering, may , ; _works_: adams, ix, . [ ] pickering to adams, may , ; _ib._, . [ ] pickering to hamilton, may , ; _works_: hamilton, vi, . [ ] adams to pickering, may , ; _works_: adams, ix, . [ ] sedgwick to hamilton, may , ; _works_: hamilton, vi, . [ ] adams to rush, march , ; _old family letters_, . [ ] "there never was perhaps a greater contrast between two characters than between those of the present president & his predecessor.... the one [washington] cool, considerate, & cautious, the other [adams] headlong & kindled into flame by every spark that lights on his passions; the one ever scrutinizing into the public opinion and ready to follow where he could not lead it; the other insulting it by the most adverse sentiments & pursuits; w. a hero in the field, yet overweighing every danger in the cabinet--a. without a single pretension to the character of a soldier, a perfect quixotte as a statesman." (madison to jefferson, feb., ; _writings_: hunt, vi, .) and [adams] "always an honest man, often a wise one, but sometimes wholly out of his senses." (madison to jefferson, june , ; _ib._, .) [ ] adams to rush, aug. , ; _old family letters_, . [ ] cabot to king, april , ; king, iii, . [ ] wolcott was as malicious as, but more cautious than, pickering in his opposition to the president. [ ] "he [adams] is liable to gusts of passion little short of frenzy.... i speak of what i have seen." (bayard to hamilton, aug. , ; _works_: hamilton, vi, .) "he would speak in such a manner ... as to persuade one that he was actually insane." (mchenry to john mchenry, may , ; gibbs, ii, .) "mr. adams had conducted strangely and unaccountably." (ames to hamilton, aug. , ; _works_: ames, i, .) these men were adams's enemies; but the extreme irritability of the president at this time was noted by everybody. undoubtedly this was increased by his distress over the illness of his wife. [ ] mchenry to john mchenry, may , ; gibbs, ii, . [ ] see preceding chapter. [ ] _aurora_, may , ; the _aurora_ had been attacking pickering with all the animosity of partisanship. [ ] the french press had been quite as much under the control of the revolutionary authorities as it was under that of bonaparte as first consul or even under his rule when he had become napoleon i. [ ] _aurora_, may , . [ ] _ib._, june , ; and june , . the _aurora_ now made a systematic campaign against pickering. it had "_substantial and damning facts_" which it threatened to publish if adams did not subject pickering to a "scrutiny" (_ib._, may , ). pickering was a "disgrace to his station" (_ib._, may ); several hundred thousand dollars were "unaccounted for" (_ib._, june , and ). the attack of the republican newspaper was entirely political, every charge and innuendo being wholly false. adams's dismissal of his secretary of state was not because of these charges, but on account of the secretary's personal and political disloyalty. adams also declared, afterwards, that pickering lacked ability to handle the grave questions then pending and likely to arise. (_cunningham letters_, nos. xii, xiii, and xiv.) but that was merely a pretense. [ ] _aurora_, june , . [ ] pinckney to mchenry, june , ; steiner, . [ ] wolcott to ames, aug. , ; gibbs, ii, . [ ] cabot to gore, sept. , ; lodge: _cabot_, . [ ] wolcott to ames, aug. , ; gibbs, ii, - . [ ] adams's correspondence shows that the shortest time for a letter to go from washington to quincy, massachusetts, was seven days, although usually nine days were required. "last night i received your favor of the th." (adams at quincy to dexter at washington, aug. , ; _works_: adams, ix, ; and to marshall, aug. ; _ib._, ; and aug. ; _ib._, ; and aug. ; _ib._, .) [ ] washington at this time was forest, swamp, and morass, with only an occasional and incommodious house. georgetown contained the only comfortable residences. for a description of washington at this period, see chap. i, vol. iii, of this work. [ ] marshall to adams, sept. , ; adams mss. this trip was to argue the case of mayo _vs._ bentley ( call, ), before the court of appeals of virginia. (see _supra_, chap. vi.) [ ] randall, ii, . although randall includes dexter, this tribute is really to marshall who was the one dominating character in adams's reconstructed cabinet. [ ] adams to marshall, july , ; _works_: adams, ix, ; also marshall to adams, aug. , aug. , and july , ; adams mss. [ ] marshall to adams, july , ; adams mss. this cost adams the support of young chase's powerful father. (mchenry to john mchenry, aug. , ; gibbs, ii, .) [ ] mcmaster, ii, . [ ] adams to marshall, aug. , ; _works_: adams, ix, ; and marshall to adams, aug. , ; adams mss. chief justice ellsworth presided at the trial of williams, who was fairly convicted. (wharton: _state trials_, - .) the republicans, however, charged that it was another "political" conviction. it seems probable that adams's habitual inclination to grant the request of any one who was his personal friend (adams's closest friend, governor trumbull, had urged the pardon) caused the president to wish to extend clemency to williams. [ ] marshall to adams, june , ; adams mss. [ ] marshall to adams, aug. , ; _ib._ [ ] marshall to adams, july , ; _ib._ [ ] de yrujo to marshall, july , ; _ib._ [ ] marshall does not state what these measures were. [ ] marshall to adams, sept. , ; adams mss. [ ] _am. st. prs._, v, _indian affairs_, i, , , . for picturesque description of bowles and his claim of british support see craig's report, _ib._, ; also, . bowles was still active in . (_ib._, .) [ ] adams to marshall, july , ; _works_: adams, ix, ; marshall to de yrujo, aug. , ; adams mss. [ ] adams to marshall, aug. , ; _works_: adams, ix, . [ ] marshall to adams, aug. , ; adams mss. [ ] _ib._ [ ] liston to marshall, aug. , ; _ib._ [ ] marshall to adams, sept. , ; _ib._ [ ] marshall to liston, sept. , ; adams mss. [ ] marshall to j. q. adams, july , ; ms. it is incredible that the barbary corsairs held the whole of europe and america under tribute for many years. although our part in this general submission to these brigands of the seas was shameful, america was the first to move against them. one of jefferson's earliest official letters after becoming president was to the bey of tripoli, whom jefferson addressed as "great and respected friend ... illustrious & honored ... whom god preserve." jefferson's letter ends with this fervent invocation: "i pray god, very great and respected friend, to have you always in his holy keeping." (jefferson to bey of tripoli, may , ; _am. st. prs., for. rel._, ii, .) and see jefferson to bey of tunis (sept. , ; _ib._, ), in which the american president addresses this sea robber and holder of americans in slavery, as "great and good friend" and apologizes for delay in sending our tribute. in jefferson's time, no notice was taken of such expressions, which were recognized as mere forms. but ninety years later the use of this exact expression, "great and good friend," addressed to the queen of the hawaiian islands, was urged on the stump and in the press against president cleveland in his campaign for re-election. for an accurate and entertaining account of our relations with the barbary pirates see allen: _our navy and the barbary corsairs_. [ ] marshall to adams, aug. , ; adams mss. [ ] marshall to adams, june , ; adams mss. [ ] marshall to adams, aug. , ; july , ; _ib._ and see adams to marshall, aug. , and to secretary of state, may ; king, iii, - . the jewels were part of our tribute to the barbary pirates. [ ] king to secretary of state, oct. , ; note to grenville; king, iii, . [ ] secretary of state to king, feb. , ; _am. st. prs., for. rel._, ii, . hildreth says that the total amount of claims filed was twenty-four million dollars. (hildreth, v, ; and see marshall to king, _infra_.) [ ] secretary of state to king, sept. , ; _am. st. prs., for. rel._, ii, . [ ] troup to king, sept. , ; king, iii, . [ ] secretary of state to king, dec. , ; _am. st. prs._, _for. rel._, ii, - . [ ] king to secretary of state, april , ; king, iii, . [ ] marshall to adams, june , ; adams mss. [ ] king to secretary of state, april , ; king, iii, . [ ] marshall to adams, july , ; adams mss. [ ] adams to marshall, aug. , ; _works_: adams, ix, - . [ ] marshall to adams, aug. , ; adams mss. [ ] _infra_, _et seq._ [ ] _am. st. prs._, _for. rel._, ii, . [ ] _am. st. prs., for. rel._, ii, . [ ] _am. st. prs., for. rel._, ii, . [ ] marshall to adams, sept. , ; adams mss. [ ] adams to marshall, sept. , ; _works_: adams, ix, . after jefferson became president and madison secretary of state, king settled the controversy according to these instructions of marshall. but the republicans, being then in power, claimed the credit. [ ] secretary of state to king, oct. , ; king, ii, . [ ] for a comprehensive though prejudiced review of british policy during this period see tench coxe: _examination of the conduct of great britain respecting neutrals_. coxe declares that the purpose and policy of great britain were to "monopolize the commerce of the world.... she denies the lawfulness of supplying and buying from her enemies, and, in the face of the world, enacts statutes to enable her own subjects to do these things. (_ib._, .) ... she now aims at the monarchy of the ocean.... her trade is war.... the spoils of neutrals fill her warehouses, while she incarcerates their bodies in her floating castles. she seizes their persons and property as the rich fruit of bloodless victories over her unarmed friends." (_ib._, .) this was the accepted american view at the time marshall wrote his protest; and it continued to be such until the war of . coxe's book is packed closely with citations and statistics sustaining his position. [ ] secretary of state to king, june , ; king, iii, ; and see king to secretary of state, july , ; _ib._, - ; and king to grenville, oct. , ; _ib._, - . [ ] this complete paper is in _am. st. prs., for. rel._, ii, - . [ ] at one place the word "distinctly" is used and at another the word "directly," in the _american state papers_ (ii, and ). the word "directly" is correct, the word "distinctly" being a misprint. this is an example of the inaccuracies of these official volumes, which must be used with careful scrutiny. [ ] _am. st. prs., for. rel._, ii, . [ ] _am. st. prs., for. rel._, ii, . [ ] _infra_, . [ ] while political parties, as such, did not appear until the close of washington's first administration, the federalist party of was made up, for the most part, of substantially the same men and interests that forced the adoption of the constitution and originated all the policies and measures, foreign and domestic, of the first three administrations. [ ] wolcott to ames, aug. , ; gibbs, ii, . [ ] during this period, the word "democrat" was used by the federalists as a term of extreme condemnation, even more opprobrious than the word "jacobin." for many years most republicans hotly resented the appellation of "democrat." [ ] marshall to otis, aug. , ; otis mss. [ ] for a vivid review of factional causes of the federalists' decline see sedgwick to king, sept. , ; king, iii, - ; and ames to king, sept. , ; _ib._, . [ ] "the public mind is puzzled and fretted. people don't know what to think of measures or men; they are mad because they are in the dark." (goodrich to wolcott, july , ; gibbs, ii, .) [ ] ames to hamilton, aug. , ; _works_: ames, i, . [ ] hamilton to sedgwick, may , ; _works_: lodge, x, . [ ] same to same, may , ; _ib._, . [ ] "in our untoward situation we should do as well with jefferson for president and mr. pinckney vice president as with anything we can now expect. such an issue of the election, if fairly produced, is the only one that will keep the federal party together." (cabot to wolcott, oct. , ; lodge: _cabot_, .) "if mr. adams should be reëlected, i fear our constitution would be more injured by his unruly passions, antipathies, & jealousy, than by the whimsies of jefferson." (carroll to mchenry, nov. , ; steiner, .) "he [adams] has palsied the sinews of the party, and" another four years of his administration "would give it its death wound." (bayard to hamilton, aug. , ; _works_: hamilton, vi, .) [ ] mchenry to john mchenry, may , ; gibbs, ii, . according to the caucus custom, two candidates were named for president, one of whom was understood really to stand for vice-president, the constitution at that time not providing for a separate vote for the latter officer. [ ] "you may rely upon my co-operation in every reasonable measure for effecting the election of general pinckney." (wolcott to hamilton, july , ; _works_: hamilton, vi, - .) "the affairs of this government will not only be ruined but ... the disgrace will attach to the federal party if they permit the re-election of mr. adams." (_ib._) "in massachusetts almost all the leaders of the first class are dissatisfied with mr. adams and enter heartily into the policy of supporting general pinckney." (hamilton to bayard, aug. , _ib._, (also in _works_: lodge, x, ); and see jefferson to butler, aug. , ; _works_: ford, ix, .) [ ] hamilton to carroll, july , ; _works_: lodge, x, ; and see hamilton to bayard, aug. , ; _ib._, . [ ] sedgwick to hamilton, may , , quoting "our friend d.[ayton] who is not perfectly right" (_works_: hamilton, vi, ; and see cabot to hamilton, aug. , ; _ib._, ; also cabot to wolcott, july , ; lodge: _cabot_, .) [ ] knox to adams, march , ; _works_: adams, viii, - . knox had held higher rank than hamilton in the revolutionary war and adams had tried to place him above hamilton in the provisional army in . but upon the demand of washington knox was given an inferior rank and indignantly declined to serve. (hildreth, v, - . and see washington to knox, july , ; _writings_: ford, xiv, - .) thereafter he became the enemy of hamilton and the ardent supporter of adams. [ ] wolcott to ames, dec. , ; gibbs, ii, . [ ] hamilton to adams, aug. , ; _works_: lodge, x, , and see ; ames to wolcott, aug. , ; gibbs, ii, ; wolcott to ames, dec. , ; _ib._, . the public discussion of adams's charge of a "british faction" against his party enemies began with the publication of a foolish letter he had written to coxe, in may of , insinuating that pinckney's appointment to the british court had been secured by "much british influence." (adams to coxe, may, ; gibbs, ii, .) the president gave vitality to the gossip by talking of the hamiltonian federalists as a "british faction." he should have charged it publicly and formally or else kept perfectly silent. he did neither, and thus only enraged his foe within the party without getting the advantage of an open and aggressive attack. (see steiner, footnote , to .) [ ] phelps to wolcott, july , ; relating noah webster's endorsement of adams's opinions; gibbs, ii, . [ ] ames to wolcott, aug. , ; gibbs, ii, . [ ] in the summer of , jefferson dined with the president. adams was utterly unreserved to the republican leader. after dinner, general henry lee, also a guest, remonstrated with the president, who responded that "he believed mr. jefferson never had the ambition, or desire to aspire to any higher distinction than to be his [adams's] first lieutenant." (lee to pickering, ; pickering mss., mass. hist. soc.; also partly quoted in gibbs, ii, ; and see ames to wolcott, june , ; gibbs, ii, ; and to king, sept. , ; king, iii, .) [ ] ames to pickering, nov. , ; _works_: ames, i, . [ ] ames to gore, nov. , ; _ib._, . [ ] ames to gore, nov. , ; ames, i, . [ ] cabot to wolcott, june , ; lodge: _cabot_, . [ ] jefferson to granger, aug. , ; _works_: ford, ix, - ; and see jefferson to gerry, january , ; _ib._, - . [ ] "the jacobins and the half federalists are ripe for attacking the permanent force, as expensive, and unnecessary, and dangerous to liberty." (ames to pickering, oct. , ; _works_: ames, i, .) [ ] "in my lengthy journey through this state [pennsylvania] i have seen many, very many irishmen and with very few exceptions, they are united irishmen, free masons, and the most god-provoking democrats on this side of hell," who, "with the joy and ferocity of the damned, are enjoying the mortification of the few remaining honest men and federalists, and exalting their own hopes of preferment, and that of their friends, in proportion as they dismiss the fears of the gallows.... the democrats are, without doubt, increasing." (uriah tracy to wolcott, aug. , ; gibbs, ii, .) [ ] huntington to wolcott, aug. , ; _ib._, . [ ] ames to wolcott, june , ; _ib._, . [ ] mchenry to wolcott, july , ; steiner, . "your very wise political correspondents will tell you anything sooner than the truth. for not one of them will look for anything but profound reasons of state at the bottom of the odd superstructure of parties here. there is nothing of the kind at the bottom." (ames to king, aug. , ; king, iii, .) [ ] the republicans were making much political capital out of the second mission. they had "saved the country from war," they said, by forcing adams to send the envoys: "what a roaring and bellowing did this excite among all the hungry gang that panted for blood only to obtain pelf in every part of the country." (_aurora_, march , .) [ ] goodrich to wolcott, aug. , ; gibbs, ii, . [ ] _am. st. prs., for. rel._, ii, . [ ] republican success in the approaching election. [ ] marshall to adams, july , ; adams mss. [ ] marshall to hamilton, aug. , ; _works_: hamilton, vi, . [ ] a republican victory. [ ] marshall to adams, aug. , ; adams mss. [ ] adams to marshall, sept. and , ; _works_: adams, ix, - . [ ] marshall to adams, sept. , ; adams mss. the "retrograde steps" to which marshall refers were the modification of the french _arrêts_ and decrees concerning attacks on our commerce. [ ] marshall to tinsley, sept. , ; ms., mass. hist. soc. [ ] marshall, ii, . [ ] _am. st. prs., for. rel._, ii, _et seq._ [ ] gunn to hamilton, dec. , ; _works_: hamilton, vi, ; and rutledge to hamilton, jan. , ; _ib._, ; ames to gore, nov. , ; _works_: ames, i, . [ ] hamilton to sedgwick, dec. , ; _works_: lodge, x, ; also, to morris, dec. , ; _ib._, . [ ] marshall to hamilton, jan. , ; _works_: hamilton, vi, - ; and see brown: _ellsworth_, - . the principal american demand was compensation for the immense spoliation of american commerce by the french. the treaty not only failed to grant this, but provided that we should restore the french ships captured by american vessels during our two years' maritime war with france, which, though formally undeclared, was vigorous and successful. "one part of the treaty abandons all our rights, and the other part makes us the dupes of france in the game she means to play against the maritime power of england.... we lose our honor, by restoring the ships we have taken, and by so doing, perhaps, make an implicit acknowledgment of the injustice of our hostile operations." (rutledge to hamilton, jan. , ; _works_: hamilton, vi, .) [ ] bayard to andrew bayard, jan. , ; _bayard papers_: donnan, . [ ] gallatin to his wife, feb. , ; adams: _gallatin_, . [ ] _ib._, . [ ] ames to gore, dec. , ; reviewing political events of the year; _works_: ames, i, - . [ ] hamilton to wolcott, aug. , ; _works_: lodge, x, ; and wolcott to ames, aug. , ; gibbs, ii, . [ ] hamilton to wolcott, sept. , ; _works_: lodge, x, (also in gibbs, ii, ); and see same to same, aug. , ; _works_: lodge, x, . [ ] troup to king, oct. , ; king, iii, . [ ] _aurora_, may , . [ ] sedgwick to king, sept. , ; king, iii, . [ ] ames to hamilton, aug. , ; _works_: hamilton, vi, ; also cabot to hamilton, aug. , ; ib., ; and aug. , ; _ib._, (also in lodge: _cabot_, - ); and to wolcott, aug. , ; lodge: _cabot_, - . the local politicians were loyal to the president; ames bitterly complains of "the small talk among the small politicians, about disrespect to the president, &c., &c." (ames to pickering, nov. , ; _works_: ames, i, .) [ ] hamilton to adams, aug. , ; _works_: lodge, x, ; and same to same, oct. , ; _ib._, . wolcott supplied most of the material and revised hamilton's manuscript. (wolcott to hamilton, oct. , , ; _works_: hamilton, vi, - .) for entire attack see hamilton: "public conduct and character of john adams"; _works_: vii, - (also in _works_: lodge, vii, - .) [ ] parton: _burr_, - ; davis: _burr_, ii, _et seq._ [ ] "this pamphlet has done more mischief to the parties concerned than all the labors of the _aurora_!" (duane to collot; parton: _burr_, .) [ ] "our friends ... lamented the publication.... not a man ... but condemns it.... our enemies are universally in triumph.... his [hamilton's] usefulness hereafter will be greatly lessened." (troup to king, nov. , ; king, iii, .) "all ... blame ... mr. hamilton." (carroll to mchenry, nov. , ; steiner, .) some federalist politicians, however, observed hamilton's wishes. for example: "you must at all events secure to the genr. [pinckney] a majority in cong., it may there be done with _safety_, his success depends on the accomplishment of this measure. you know a friend of ours who can arrange this necessary business with the utmost perfect suavity." (dickinson to mchenry, oct. , ; steiner, .) again dickinson writes of "the absolute necessity of obtaining a _majority_ (if it should only be by a _single_ vote) in cong. to favor the man who interests us most" and hopes "hamilton's publication ... will produce the desired effect." (oct. , ; _ib._, .) [ ] _washington federalist_, nov. , . [ ] for instance see the _aurora's_ editorial on women in the army, january , ; and see titles of imaginary books editorially suggested for use by the various federalist leaders, especially hamilton, harper, and gouverneur morris, in _ib._, may , . on august it described some federalist leaders as "completely bankrupt of character as well as fortune." although it did not equal the extravagance of the republican newspapers, the federalist press was also violent. see, for instance, a satirical poem "by an hibernian and an alien" in the _alexandria advertiser_, reprinted in the _washington federalist_ of february , , of which the last verse runs:-- "with j[effer]son, greatest of men, our president next we will dash on. republican marriages then, and drowning boats will be in fashion. co-alitions, tri-color we'll form 'twixt white men, mulattos, and negroes. the banks of the treasury we'll storm-- oh! how we'll squeeze the old quakers, _philosophy is a fine thing_!" the familiar campaign arguments were, of course, incessantly reiterated as: "the government" cost only "five million dollars ... before the british treaty"; now it costs "fifteen millions. therefore every man who paid _one dollar_ taxes then pays _three_ dollars now." (_aurora_, oct. , .) [ ] ames to pickering, nov. , ; _works_: ames, i, . [ ] ames to dwight, march , ; _ib._, . [ ] webster to wolcott, june , ; gibbs, ii, . [ ] the _washington federalist_, jan. , , charged that, in virginia, public money was used at the election and that a resolution to inquire into its expenditures was defeated in the legislature. [ ] charles pinckney to jefferson, oct. , ; _amer. hist. rev._, iv, . for election arguments and methods see mcmaster, ii, _et seq._ [ ] adams to marshall, sept. , ; _works_: adams, ix, ; and see graydon, footnote to . [ ] adams to marshall, sept. , ; adams mss. [ ] marshall to adams, without date; adams mss. [ ] adams mss. marshall wrote two speeches for adams. both are in marshall's handwriting. the president selected and delivered the one which appears in adams's _works_ and in richardson. the undelivered speech was the better, although it was written before the french treaty arrived, and was not applicable to the state of our relations with france when congress convened. marshall also wrote for adams the two brief separate addresses to the senate and the house. (_ib._) [ ] the original manuscripts of these speeches, in marshall's handwriting, are in the adams mss. they are notable only as an evidence of adams's confidence in marshall at this, the most irritating period of his life. [ ] beard: _econ. o. j. d._, chap. xiii. [ ] when it was certain that adams had been defeated, "solon," in the _washington federalist_ of jan. , , thus eulogized him:-- "the die is cast!... our beloved adams will now close his bright career.... immortal sage! may thy counsels continue to be our saving angel! retire and receive ... the ... blessings of all _good_ men.... "sons of faction [party]! demagogues and high priests of anarchy, now have you cause to triumph. despots and tyrants! now may you safely pronounce 'ingratitude is the common vice of all republics. envy and neglect are the only reward of superior merit. calumny, persecution and banishment are the laurels of the hoary patriot.'... "... we have to contend ... for national existence. magistrates and rulers, be firm.... our constitution is our last fortress. let us entrench it against every innovation. when this falls, our country is lost forever." this editorial, as well as all political matter appearing in the _washington federalist_ during - , is important because of marshall's reputed influence over that paper. (see _infra_, .) at news of jefferson's success the leading federalist journal declared that some republicans in philadelphia "huzzaed until they were seized with lockjaw ... and three hundred are now drunk beyond hope of recovery. gin and whiskey are said to have risen in price per cent since nine o'clock this morning. the bells have been ringing, guns firing, dogs barking, cats meuling, children crying, and jacobins getting drunk, ever since the news of mr. jefferson's election arrived in this city." (_gazette of the united states_, feb. , .) [ ] at that time, the presidential electors did not vote for a vice-president, but only for president. the person receiving the largest number of electoral votes became president and the one for whom the second largest number of votes were cast became vice-president. when jefferson and burr each had seventy-three votes for president, the election was thrown into the house of representatives. thus, although, in casting their ballots for electors, the people really voted for jefferson for president and for burr for vice-president, the equal number of votes received by each created a situation where it was possible to defeat the will of the people. indeed, as appears in the text, that result was almost accomplished. it was this constitutional defect that led to the twelfth amendment which places the election of president and vice-president on its present basis. (see "the fifth wheel in our government"; beveridge: _century magazine_, december, .) [ ] jefferson to burr, dec. , ; _works_: ford, ix, . [ ] "jefferson & burr have each votes and ... the democrats are in a sweat." (uriah tracy to mchenry, dec. , ; steiner, .) [ ] jefferson to madison, dec. , ; _works_: ford, ix, . [ ] jefferson to breckenridge, dec. , ; _ib._, . [ ] hamilton to wolcott, dec. , ; _works_: lodge, x, . [ ] see these letters in _ib._, _et seq._; and to bayard, jan. , ; _ib._, (also in _works_: hamilton, vi, , but misplaced and misdated). [ ] hindman to mchenry, jan. , ; steiner, - ; and see carroll to hamilton, april , ; _works_: hamilton, vi, - . the _washington federalist_, even when the balloting was in progress, thus stimulated the members of its party in the house: "_unworthy_ will he be and consecrate his name to infamy, who ... has hitherto opposed ... mr. jefferson ... and shall now meanly and inconsistently lend his aid to promote it [jefferson's election].... will they confer on mr. jefferson the federal suffrage in reward for the calumnies he has indiscriminately cast upon the federal character; or will they remunerate him ... for the very honorable epithets of _pander, to the whore of england, 'timid men, office hunters, monocrats, speculators and plunderers'_ which he has missed no opportunity to bestow upon them." (_washington federalist_, feb. , .) [ ] hamilton to wolcott, dec. , ; _works_: lodge, x, . [ ] jefferson rightly attributed to burr republican success in the election. "he has certainly greatly merited of his country, & the republicans in particular, to whose efforts his have given a chance of success." (jefferson to butler, aug. , ; _works_: ford, ix, .) [ ] sedgwick to hamilton, jan. , ; _works_: hamilton, vi, - ; cabot to hamilton, aug. , ; _ib._, (also in lodge: _cabot_, ); hindman to mchenry, jan. , ; steiner, - ; morris to hamilton, jan. , ; morris, ii, ; and same to same, jan. , ; _ib._, (also in _works_: hamilton, vi, ); carroll to mchenry, nov. , ; steiner, - ; rutledge to hamilton, jan. , ; _works_: hamilton, vi, . [ ] bayard to andrew bayard, jan. , ; _bayard papers_: donnan, . [ ] bayard to hamilton, march , ; _works_: hamilton, vi, . [ ] tracy to mchenry, jan. , ; steiner, - ; and see bayard to andrew bayard, jan. , ; _supra_. [ ] hamilton to wolcott, dec. , ; _works_: lodge, x, . [ ] wolcott to hamilton, dec. , ; _works_: hamilton, vi, . [ ] see chief justice ellsworth's statement of the conservative opinion of jefferson. (brown: _ellsworth_, - .) [ ] jefferson to mazzei, april , ; _works_: ford, viii, - . the letter as published in america, although it had undergone three translations (from english into italian, from italian into french, and from french into english again), does not materially differ from jefferson's original. it greatly angered the federalist leaders. jefferson calls the federalists "an anglican, monarchical & aristocratical party." the republicans had "the landed interests and men of talent"; the federalists had "the executive, the judiciary," the office-holders and office-seekers--"all timid men who prefer the calm of despotism to the boisterous sea of liberty, british merchants & americans trading on british capital, speculators & holders in the banks & public funds, a contrivance invented for the purposes of corruption," etc. jefferson thus refers to washington: "it would give you a fever were i to name to you the apostates who have gone over to these heresies, men who were samsons in the field & solomons in the council, but who have had their heads shorn by the whore england." it was this insult to washington which marshall resented most bitterly. jefferson must have known that mazzei would probably publish this letter. writing at paris, in , of mazzei's appointment by the french king as "intelligencer," jefferson said: "the danger is that he will overact his part." (jefferson to madison, july , ; _works_: ford, v, .) the republicans frankly defended the mazzei letter; both its facts and "predictions" were correct, said the _aurora_, which found scarcely "a line in it which does not contain something to admire for elegance of expression, striking fact, and profound and accurate penetration." (_aurora_, may , .) [ ] marshall to hamilton, january , ; _works_: hamilton, vi, - . [ ] following is a list of the annual salaries of different officers:-- president $ , vice-president , chief justice , associate justices , attorney-general , secretary of the treasury , secretary of state , secretary of war , (_annals_, st cong., st sess., appendix, - .) [ ] at the very beginning of the movement in his favor, burr refused to encourage it. "every man who knows me ought to know that i disclaim all competition. be assured that the federalist party can entertain no wish for such a change.... my friends would dishonor my views and insult my feelings by a suspicion that i would submit to be instrumental in counteracting the wishes and expectations of the united states. and i now constitute you my proxy to declare these sentiments if the occasion shall require." (burr to smith, dec. , ; _washington federalist_, dec. , .) [ ] pickering to king, jan. , ; king, iii, . [ ] see _aurora_, jan. , . [ ] "lucius," of fredericksburg, virginia, in the _washington federalist_, jan. , , and feb. , . the following extracts from the first of these articles reveal the temper and beliefs of the federalists: "burr never _penned_ a declaration of independence; ... but he ... has _engraved that declaration_ in _capitals_ with the point of his sword: it is yet _legible_ on the _walls of quebeck_. he has _fought_ for that _independency_, for which mr. _jefferson_ only _wrote_. _he_ has gallantly exposed his life in support of that declaration and for the _protection_ of its _penn-man_. he has been _liberal_ of his _blood_, _while_ mr. _jefferson_ has _only hazarded_ his _ink_.... "_he never shrank from the post of danger._ _he_ is _equally fitted for_ service in the _field_ and in the _public counsels_: he has been _tried_ in _both_: in the one we have seen him _an able and distinguished senator_;--in the _other_ a _brave_ and _gallant officer_.... "_mr. jefferson_ is better qualified to give the description of a butterfly's wing or to write an essay on the bones of the mammouth; ... but mr. burr ... in ... knowledge ... necessary to form the _great and enlightened statesman_, is _much superior_ to mr. jefferson.... "mr. burr is not ... _consecrated_ to the _french_; ... nor has he unquenchable hatred to ... great britain. unlike the _penn-man_ of the declaration he feels the _full force_ of the expression, 'in _war enemies_, in _peace friends_'... mr. burr ... will _only_ consult _national honor_ and _national_ happiness, having no improper passions to gratify. "mr. burr is ... a friend of the constitution ... a friend of the commercial interests ... the firm and decided friend of the _navy_ ... the _eastern_ states have had a president and vice president; so have the _southern_. it is proper that the _middle_ states should also be respected.... "mr. burr has never procured or encouraged those infamous calumnies against those who have filled the executive departments ... which we long have witnessed: nor have those polluted _sinks_, the aurora, the argus, the press, the richmond examiner, and the like, poured forth their _impure_ and _foetid streams_ at the influence of mr. burr, or to subserve his vanity or his ambition. "if mr. burr is elected, the _federalists_ have nothing to _fear_.... the vile calumniators ... of all who have ... supported our government, and the _foreign incendiaries_, who, having no interest in _heaven_, have called _hell_ to their assistance, ... from mr. burr have nothing to _hope_.... "mr. burr can be raised to the presidency without any _insult_ to the feelings of the federalists, the friends of government; ... without an _insult_ to the _memory_ of _our_ washington; for it was not by mr. _burr_, nor was it by _his_ friends, nor to _serve him that the great, the good, the immortal_ washington was charged with having, by his name, given a sanction to corruption, with being meanly jealous of the fame of even that contemptible wretch tom paine, with being an unprincipled hypocrite and with being a foul murderer! a murderer under circumstances of such peculiar atrocity as to shock with horror the merciless savages, and to cause them indignantly to fly from his blood polluted banner!" [ ] "john marshall ... is the reputed author of a great part of the [rubbish] in the washington federalist." (scots correspondent [callender] in _richmond examiner_, feb. , .) there is no proof of callender's assertion; but some of the matter appearing in the _washington federalist_ is characteristic of marshall's style and opinions. see, for instance, the editorial on the prosecution of theodore dwight, denouncing "party spirit" (_washington federalist_, march , ). the _aurora_ of march , , denounced "john marshall's federal gazette at washington." [ ] monroe to jefferson, jan. , ; monroe's _writings_: hamilton, iii, . an article signed "horatius" in the _washington federalist_ of jan. , , stated this position with great ability. the argument is able and convincing; and it is so perfectly in marshall's method of reasoning and peculiar style of expression that his authorship would appear to be reasonably certain. "horatius's" opinion concluded that the power of congress "is completely adequate ... to provide by law for the vacancy that may happen by the removal of both president and vice president on the d of march next, and the non-election of a successor in the manner prescribed by the constitution." [ ] monroe to jefferson, jan. , ; monroe's _writings_: hamilton, iii, . [ ] jefferson to madison, dec. , ; _works_: ford, ix, - . [ ] "hortensius" to john marshall, secretary of state, in the _richmond examiner_; reprinted in the _aurora_, feb. , . george hay, the writer of this letter, was a lawyer in richmond. jefferson appointed him united states attorney for the district of virginia, and, as such, he conducted the prosecution of aaron burr for treason before john marshall, who, as chief justice of the united states, presided at the trial. (see vol. iii of this work.) marshall was again attacked in two open letters, signed "lucius," in the _richmond examiner_, feb. , , . his reported opinion, said "lucius," alarmed "the active friends of freedom"; marshall was "the idol of his party" and knew the influence of his views: unless he publicly disclaimed the one now attributed to him, "lucius" proposed to "unveil" marshall's "motives" and "expose" him "uncovered to the sight of the people"--his "depravity shall excite their odium," etc. "lucius's" attacks ended with jefferson's election. [ ] the paper criticized "the intemperate counsel of a certain _would be attorney-general_ of the united states (george hay, _esq._ of the antient dominion) ... under the signature of hortensius, and addressed to general marshall, in consequence of a lie fabricated against him relative to an opinion said to have been given by him upon the late presidential election, which the honorable attorney knew to be a lie as well as we did, but was fearful of being forgot, and despaired of getting a better opportunity to shew himself!!!" (_washington federalist_, feb. , .) [ ] jefferson to monroe, feb. , ; _works_: ford, ix, - ; and see jefferson to mckean, march , ; _ib._, . [ ] jefferson to madison, feb. , ; _ib._, . [ ] monroe to hoomes, feb. , ; monroe's _writings_: hamilton, iii, ; and monroe to nicholas, feb. , ; _ib._, . [ ] for these incidents and reports see gallatin to his wife, may , ; adams: _gallatin_, . [ ] thus, for example, the _washington federalist_ of feb. , , after the house had balloted "upwards of times":-- "but say the bold and impetuous partisans of mr. jefferson, and that, too, _in the teeth of the assembled congress of america_--'_dare_ to designate any officer whatever, even temporarily, to administer the government in the event of a non-agreement on the part of the house of representatives, and we will march and _dethrone him as an usurper_. _dare_ (_in fact_) to exercise the right of opinion, and place in the presidential chair any other than the philosopher of monticello, and ten thousand republican _swords will instantly leap from their scabbards_, in defence of the violated rights of the _people_!!! "can our countrymen be caught by so flimsy a pretext? "can it possibly interest either their feelings or their judgment? "are they, then, ripe for civil war, and ready to imbrue their hands in kindred blood? "if the tumultuous meetings of a set of factious foreigners in pennsylvania or a few _fighting_ bacchanals of virginia, mean the _people_, and are to dictate to the congress of the united states whom to elect as president--if the constitutional rights of this body are so soon to become the prey of anarchy and faction--... it would be prudent to prepare for the contest: the woeful experiment if tried at all could never be tried at a more favorable conjuncture! "with the militia of massachusetts consisting of , (_regulars let us call them_) in arms--with those of new hampshire and connecticut united almost to a man, with half the number at least of the citizens of eleven other states ranged under the federal banner in support of the constitution, what could pennsylvania aided by virginia--the militia of the latter untrained and farcically performing the manual exercise with _corn-stalks_ instead of muskets--... what, may it be asked, would be the issue of the struggle?" [ ] "the means existed of electing burr, but this required his co-operation. by deceiving one man (a great blockhead) and tempting two (not incorruptible) he might have secured a majority of the states." (bayard to hamilton, march , ; _works_: hamilton, vi, - .) "the federalists were confident at first, they could debauch col. b.[urr].... his conduct has been honorable and decisive, and greatly embarrasses them." (jefferson to his daughter, jan. , ; _works_: ford, ix, .) [ ] "i was enabled soon to discover that he [burr] was determined not to shackle himself with federal principles.... when the experiment was fully made, and acknowledged upon all hands, ... that burr was resolved not to commit himself, ... i came out ... for jefferson." (bayard to hamilton, march , ; _works_: hamilton, vi, .) [ ] the federalist managers were disgusted with burr because he refused to aid them in their plot to elect him. "burr has acted a miserable paultry part," writes bayard. "the election was in his power, but he was determined to come in as a democrat.... we have been counteracted in the whole business by letters he has written to this place." (bayard to bassett, feb. , ; _bayard papers_: donnan; .) burr had not "used the least influence" to be elected. (bayard's deposition; davis: _burr_, ii, .) "_had burr done anything, for himself, he would, long ere this, have been president._" (cooper to morris, feb. , ; davis: _burr_, ii, .) [ ] depositions of bayard and smith, in gillespie _vs._ smith; randall, ii, - ; and davis: _burr_, ii, - ; also baer to bayard, april , ; _ib._, ; and see bayard's account; remarks in the senate, jan. , ; also, bayard to mclane, feb. , ; _bayard papers_: donnan, _et seq._ in his "anas" (_works_: ford, i, - ) jefferson flatly denied his deal with the federalists, and this, afterwards, provoked much controversy. it now is established that the bargain was made. see professor mcmaster's conclusion: "the price settled ... the republicans secured ten states." (mcmaster, ii, .) [ ] for accounts by participants in this exciting and historic contest, see gallatin's letters to his wife and to nicholson from feb. to feb. , ; adams: _gallatin_, - ; dana to wolcott, feb. , ; gibbs, ii, - ; bayard to several friends, feb. , ; _bayard papers_, _supra_. [ ] jefferson to madison, feb. , ; _works_: ford, ix, . [ ] after jefferson's election, for many days the _washington federalist_ carried in italics at the head of its editorial columns a sentiment characteristic of marshall: "_may he discharge its duties in such a manner as to merit and receive the blessings of all good men and without redding the cheek of the american patriot with blushes for his country!!!_" [ ] gallatin to his wife, feb. , ; adams: _gallatin_, . [ ] adams to congress, dec. , ; _annals_, th cong., st sess., - ; and richardson, i, . yet at this period the business of the courts was actually decreasing. (see brown: _ellsworth_, .) but the measure was demanded by the bar generally and insisted upon by the justices of the supreme court. (see gibbs, ii, .) [ ] adams to congress, dec. , ; as written by marshall; adams mss. [ ] gunn to hamilton, dec. , ; _works_: hamilton, vi, . [ ] the federalist attitude is perfectly expressed in the following toast drunk at a banquet to wolcott, attended by "the heads of departments" and the justices of the supreme court: "_the judiciary of the united states! independent of party, independent of power and independent of popularity._" (_gazette of the united states_, feb. , .) [ ] wolcott to ames, dec. , ; gibbs, ii, . [ ] _annals_, th cong., st sess., dec. , - . [ ] _richmond examiner_, feb. , . [ ] jefferson to madison, dec. , ; _works_: ford, ix, . the republicans were chiefly alarmed because, in the extension of the national judiciary, offices would be provided for federalists. even jefferson then saw nothing but patronage in the judiciary act. the "evident" purpose of the bill, said the _aurora_, feb. , , was to "increase the influence of the present executive and provide a _comfortable retreat_ for some of those _good federalists_ who have found it convenient to resign from their offices or been dismissed from them by the people." in comparison to this objection little attention was paid to the more solid ground that the national judiciary would be used to "force the introduction of the common law of england as a part of the law of the united states"; or even to the objection that, if the judiciary was extended, it would "strengthen the system of terror by the increase of prosecutions under the sedition law"; or to the increase of the "enormous influence" given the national courts by the bankruptcy law. the _aurora_, march , , sounded the alarm on these and other points in a clanging editorial, bidding "_the people beware_," for "the hell hounds of persecution may be let loose ... and the people be roasted into implicit acquiescence with every measure of the 'powers that be.'" but at this time it was the creation of offices that the federalists would fill to which the republicans chiefly objected. [ ] rutledge to hamilton, jan. , ; _works_: hamilton, vi, . [ ] jefferson to madison, dec. , ; _works_: ford, ix, . [ ] _annals_, th cong., st sess., . [ ] _annals_, th cong., st sess., . [ ] _ib._ the person who made this absurd speech is not named in the official report. [ ] _ib._, . [ ] _annals_, th cong., st sess., . this curious entry is, plainly, the work of some person who wished to injure marshall and lee. nicholas's motion was lost, but only by the deciding vote of the speaker. (_ib._) the bill, as finally passed, limited the jurisdiction of the national courts to causes exceeding four hundred dollars. (_ib._) [ ] _ib._, , , , and . [ ] _ib._, . [ ] _ib._, - . [ ] _ib._, . [ ] _ib._, . [ ] adams to jay, dec. , ; _works_: adams, ix, . [ ] jay to adams, jan. , ; _jay_: johnston, iv, . jay refused the reappointment because he believed the supreme court to be fatally lacking in power. see chap. i, vol. iii, of this work. [ ] gunn to hamilton, dec. , ; _works_: hamilton, vi, . [ ] jefferson to madison, dec. , ; _works_: ford, ix, . it is impossible to imagine what this "something worse" was. it surely was not marshall, who was in nobody's mind for the chief justiceship when jay was named. [ ] pickering to king, jan. , ; king, iii, . [ ] story, in dillon, iii, . [ ] adams to william cunningham, nov. , ; _cunningham letters_, no. xiv, ; also mentioned in gibbs, ii, . [ ] gibbs, ii, , . [ ] as we have seen, marshall's "reading of the science," "fresh" or stale, was extremely limited. [ ] adams to boudinot, jan. , ; _works_: adams, ix, - . adams's description of marshall's qualifications for the chief justiceship is by way of contrast to his own. "the office of chief justice is too important for any man to hold of sixty-five years of age who has wholly neglected the study of the law for six and twenty years." (_ib._) boudinot's "rumor" presupposes an understanding between jefferson and adams. [ ] bayard to andrew bayard, jan. , ; _bayard papers_: donnan, . [ ] _aurora_, jan. , . [ ] it is worthy of repetition that practically all the emphasis in their attacks on this act was laid by the republicans on the point that offices were provided for federalists whose characters were bitterly assailed. the question of the law's enlargement of national power was, comparatively, but little mentioned; and the objections enlarged upon in recent years were not noticed by the fierce partisans of the time. [ ] _aurora_, feb. , . [ ] _baltimore american_; reprinted in the _aurora_, april , . [ ] _richmond examiner_, feb. , . [ ] marshall's nomination was confirmed january , , a week after the senate received it. compare with the senate's quick action on the nomination of marshall as secretary of state, may , , confirmed may . (executive journal of the senate, iii.) [ ] adams to dexter, jan. , ; _works_: adams, ix, - . [ ] marshall to adams, feb. , ; _ib._, . [ ] adams to marshall, feb. , ; _ib._, . [ ] same to same, feb. , ; _ib._, - . [ ] jay held both offices for six months. [ ] auditor's files, treasury department, no. , . this fact is worthy of mention only because marshall's implacable enemies intimated that he drew both salaries. he could have done so, as a legal matter, and would have been entirely justified in doing so for services actually rendered. but he refused to take the salary of secretary of state. [ ] ames to smith, feb. , ; _works_: ames, i, . [ ] marshall to wolcott, feb. , ; gibbs, ii. . [ ] wolcott to marshall, march , ; gibbs, ii, . [ ] the irresponsible and scurrilous callender, hard-pressed for some pretext to assail marshall, complained of his having procured the appointment of relatives to the judiciary establishment. "mr. john marshall has taken particular care of his family," writes jefferson's newspaper hack, in a characteristically partisan attack upon adams's judicial appointments. (scots correspondent, in _richmond examiner_, march , .) joseph hamilton davies, a brother-in-law of marshall's, was appointed united states attorney for the district of kentucky; george keith taylor, another brother-in-law, was appointed united states judge of the fourth circuit; and marshall's brother, james m. marshall, was appointed assistant judge of the territory (district) of columbia. these appointments were made, however, before the new judiciary act was passed. (executive journal of the senate, i, , , .) callender appears to have been the only person to criticize these appointments. even jefferson did not complain of them or blame marshall for them. the three appointees were competent men, well fitted for the positions; and their appointment, it seems, was commended by all. [ ] jefferson to rush, march , ; _works_: ford, ix, . [ ] the republicans did so later. "this outrage on decency should not have its effect, except in life appointments [judges] which are irremovable." (jefferson to knox, march , ; _works_: ford, ix, .) [ ] parton: _jefferson_, - . parton relates this absurd tale on the authority of jefferson's great-granddaughter. yet this third-hand household gossip has been perpetuated by serious historians. the only contemporary reference is in the address of john fowler of kentucky to his constituents published in the _aurora_ of april , : "this disgraceful abuse was continued to the latest hour of the president's holding his office." the "shameful abuse" was thus set forth: "it [judiciary law of ] creates a host of judges, marshalls, attorneys, clerks, &c, &c, and is calculated, if it could endure, to unhinge the state governments and render the state courts contemptible, while it places the courts of law in the hands of creatures of those who have lost the confidence of the people by their misconduct. the insidiousness of its design has been equalled only by the shameless manner of its being carried into execution. the constitution disables any member of congress from filling an office created during his period of service. the late president [adams] removed persons from other branches of the judiciary, to the offices created by this law & then put members of congress into the thus vacated offices.... this law can be considered in no other light than as providing pensions for the principals and adherents of a party [federalist]. the evil however will not i trust be durable and as it was founded in fraud the return of a wiser system will release the country from the shame and imposition." (fowler to his constituents in the _aurora_, april , .) [ ] jefferson to rush, march , ; _works_: ford, ix, - ; to knox, march , ; _ib._, ; to mrs. adams, june , ; _ib._, x, . [ ] neither randall nor tucker, jefferson's most complete and detailed biographers, both partisans of the great republican, mentions the lincoln-marshall story, although, if it had even been current at the time they wrote, it is likely that they would have noticed it. [ ] jefferson to knox, _supra_. end of volume ii appendix i. list of cases argued by marshall before the court of appeals of virginia _case_ _date_ _reported_ joseph cutchin _v._ william wilkinson spring term, call, william fairclaim, lessee, _v._ richardand elizabeth guthrie spring term, call, cabell _et al._ _v._ hardwick fall term, call, hopkins _v._ blane fall term, call, pryor _v._ adams fall term, call, proudfit _v._ murray fall term, call, harrison _v._ harrison, _et al._ fall term, call, shaw _et al._ _v._ clements fall term, call, graves _v._ webb fall term, call, jones _v._ jones fall term, call, auditor of public accounts _v._ graham fall term, call, beverley _v._ fogg spring term, call, rowe _et al._ _v._ smith spring term, call, ritchie & co. _v._ lyne spring term, call, eckhols _v._ graham, _et al._ spring term, call, noel _v._ sale spring term, call, lee _v._ love & co. spring term, call, wilson _v._ rucker spring term, call, garlington _v._ clutton spring term, call, taliaferro _v._ minor spring term, call, hacket _v._ alcock spring term, call, rose _v._ shore spring term, call, smith _v._ dyer spring term, call, macon _v._ crump spring term, call, flemings _v._ willis _et ux._ fall term, call, eppes, ex'r, _v._ demoville, adm'r fall term, call, cooke _v._ simms fall term, call, lawrason, adm'r _v._ davenport _et al._ fall term, call, price _et al._ _v._ campbell fall term, call, eppes _et al._, ex'rs, _v._ randolph fall term, call, taliaferro _v._ minor fall term, call, anderson _v._ anderson fall term, call, crump _et al._ _v._ dudley _et ux._ june, call, beall _v._ edmondson june, call, johnsons _v._ meriwether july, call, barrett _et al._ _v._ floyd _et al._ july, call, syme _v._ johnston december, call, ross _v._ pynes december, call, rev. john bracken _v._ the visitors of william and mary college december, call, hite _et al._ _v._ fairfax _et al._ may, call, pickett _v._ claiborne october, call, beall _v._ cockburn july, call, hamilton _v._ maze june, call, calvert _v._ bowdoin june, call, tabb _v._ gregory april, call, ross _v._ gill et ux. april, call, white _v._ jones october, call, marshall _et al._ _v._ clark november, call, foushee _v._ lea april, call, braxton _et al._ _v._ winslow _et al._ april, call, commonwealth _v._ cunningham & co. october, call, johnston _v._ macon december, call, hooe _v._ marquess october, call, chapman _v._ chapman april, call, mayo _v._ bentley october, call, turberville _v._ self april, call, executors of william hunter and the executors of herndon _v._ alexander spotswood fall term, wash. stevens _v._ taliaferro, adm'r spring term, wash. kennedy _v._ baylor spring term, wash. baird and briggs _v._ blaigove, ex'r spring term, wash. bannister's ex'rs _v._ shore spring term, wash. clayborn, ex'r _v._ hill spring term, wash. anderson _v._ bernard spring term, wash. johnson _v._ bourn spring term, wash. eustace _v._ gaskins, ex'r spring term, wash. wilson and mcrae _v._ keeling fall term, wash. payne, ex'r, _v._ dudley, ex'r fall term, wash. hawkins _v._ berkley fall term, wash. hooe & harrison _et al._ _v._ mason fall term, wash. thweat & hinton _v._ finch fall term, wash. brown's adm'r _v._ garland _et al._ fall term, wash. jones _v._ williams & tomlinson fall term, wash. coleman _v._ dick & pat fall term, wash. taylor's adm'rs _v._ peyton's adm'rs spring term, wash. smith and moreton _v._ wallace spring term, wash. carr _v._ gooch spring term, wash. cole _v._ clayborn spring term, wash. shermer _v._ shermer fall term, wash. ward _v._ webber _et ux._ fall term, wash. applebury _et al._ _v._ anthony's ex'rs fall term, wash. smallwood _v._ mercer _et al._ fall term, wash. minnis ex'r, _v._ philip aylett fall term, wash. brown's ex'rs _v._ putney fall term, wash. leftwitch _et ux._ _v._ stovall fall term, wash. lee, ex'r, _v._ cooke fall term, wash. burnley _v._ lambert fall term, wash. cooke _v._ beale's ex'rs fall term, wash. dandridge _v._ harris fall term, wash. nicolas _v._ fletcher fall term, wash. watson & hartshorne _v._ alexander fall term, wash. wroe _v._ washington _et al._ fall term, wash. cosby, ex'r, _v._ hite fall term, wash. hewlett _v._ chamberlayne fall term, wash. pendleton _v._ vandevier fall term, wash. walden, ex'r, _v._ payne fall term, wash. james roy _et al._ _v._ muscoe garnett fall term, wash. james ferguson _et al._ _v._ moore spring term, wash. currie _v._ donald spring term, wash. shelton _v._ barbour spring term, wash. brock _et al._ _v._ philips spring term, wash. turner _v._ moffett spring term, wash. turberville _v._ self spring term, wash. brydie _v._ langham spring term, wash. bernard _v._ brewer fall term, wash. philip mcrae _v._ richard woods fall term, wash. newell _v._ the commonwealth fall term, wash. white _v._ atkinson fall term, wash. martin & william picket _v._ james dowdall fall term, wash. claiborne _v._ parrish fall term, wash. brown _et al._ _v._ adm'r, thomas brown, dec'd fall term, wash. harrison, ex'r, _v._ sampson fall term, wash. harvey _et ux._ _v._ borden fall term, wash. lee _v._ turberville fall term, wash. jordan _v._ neilson fall term, wash. ruffin _v._ pendleton & courtney spring term, wash. pearpoint _v._ henry spring term, wash. sarah walker & thomas walker, ex'rs, _v._ thomas walke[r] spring term, wash. davenport _v._ mason spring term, wash. lewis stephens _v._ alexander white fall term, wash. picket _v._ morris fall term, wash. booth's ex'rs _v._ armstrong fall term, wash. ii. general marshall's answer to an address of the citizens of richmond, virginia i will not, gentlemen, attempt to describe the emotions of joy which my return to my native country, and particularly to this city, has excited in my mind; nor can i paint the sentiments of affection and gratitude towards you which my heart has ever felt, and which the kind and partial reception now given me by my fellow citizens cannot fail to increase. he only who has been ... absent from a much loved country, and from friends greatly and deservedly esteemed--whose return is welcomed with expressions, which, di[rec]ted by friendship, surpass his merits or his ho[pes,] will judge of feelings to which i cannot do justice. the situation in which the late envoys from [the] united states to the _french republic_ found themselves in _paris_ was, indeed, attended with the unpleasant circumstances which you have traced.--removed far from the councils of their country, and receiving no intelligence concerning it, the scene before them could not fail to produce the most anxious and disquieting sensations. neither the ambition, the power, nor the hostile temper of _france_, was concealed from them; nor could they be unacquainted with the earnest and unceasing solicitude felt by the government and people of the _united states_ for peace. but midst these difficulties, they possessed, as guides, clear and explicit instructions, a conviction of the firmness and magnanimity, as well as of the justice and pacific temper of their government, and a strong reliance on that patriotism and love of liberty, which can never cease to glow in the american bosom. with these guides, however thorny the path of duty might be, they could not mistake it. it was their duty, unmindful of personal considerations, to pursue peace with unabating zeal, through all the difficulties with which the pursuit was embarrassed by a haughty and victorious government, holding in perfect contempt the rights of others, but to repel, with unhesitating decision, any propositions, an acceptance of which would subvert the independence of the _united states_.--this they have endeavoured to do. i delight to believe that their endeavours have not dissatisfied their government or country, and it is most grateful to my mind to be assured that they receive the approbation of my fellow-citizens in _richmond_, and its vicinity. i rejoice that i was not mistaken in the opinion i had formed of my countrymen. i rejoice to find, though they know how to estimate, and therefore seek to avoid the horrors and dangers of war, yet they know also how to value the blessings of liberty and national independence:--they know that peace would be purchased at too high a price by bending beneath a foreign yoke, and that peace so purchased could be but of short duration. the nation thus submitting would be soon involved in the quarrels of its master, and would be compelled to exhaust its blood and its treasure, not for its own liberty, its own independence, or its own rights, but for the aggrandizement of its oppressor. the modern world unhappily exhibits but too plain a demonstration of this proposition. i pray heaven that _america_ may never contribute its still further elucidation. terrible to her neighbors on the continent of _europe_, as all must admit _france_ to be, i believe that the _united states_, if indeed united, if awake to the impending danger, if capable of employing their whole, their undivided force--are so situated as to be able to preserve their independence. an immense ocean placed by a gracious providence, which seems to watch over this rising empire, between us and the european world, opposes of itself such an obstacle to an invading ambition, must so diminish the force which can be brought to bear upon us, that our resources, if duly exerted, must be adequate to our protection, and we shall remain free if we do not deserve to be slaves. you do me justice, gentlemen, when you suppose that consolation must be derived from a comparison of the administration of the american government, with that which i have lately witnessed. to a citizen of the _united states_, so familiarly habituated to the actual possession of liberty, that he almost considers it as the inseparable companion of man, a view of the despotism, which borrowing the garb and usurping the name of freedom, tyrannizes over so large and so fair a proportion of the earth, must teach the value which he ought to place on the solid safety and real security he enjoys at home. in support of these, all temporary difficulties, however great, ought to be encountered, and i agree with you that the loss of them would poison and embitter every other joy; and that deprived of them, men who aspire to the exalted character of freemen, would turn with loathing and disgust from every other comfort of life. to me, gentlemen, the attachment you manifest to the government of your choice affords the most sincere satisfaction. having no interests separate from or opposed to those of the people, being themselves subject in common with others, to the laws they make, being soon to return to that mass from which they are selected for a time in order to conduct the affairs of the nation, it is by no means probable that those who administer the government of the _united states_ can be actuated by other motives than the sincere desire of promoting the real prosperity of those, whose destiny involves their own, and in whose ruin they must participate. desirable as it is at all times, a due confidence in our government, it is peculiarly so in a moment of peril like the present, in a moment when the want of that confidence must impair the means of self defence, must increase a danger already but too great, and furnish, or at least give the appearance of furnishing, to a foreign real enemy, those weapons, which have so often been so successfully used. accept, gentlemen, my grateful acknowledgments for your kind expressions concerning myself, and do me the justice to believe, that your prosperity, and that of the city of _richmond_ and its vicinity, will ever be among the first wishes of my heart. (from _columbian centinel_, saturday, sept. , .) iii. freeholder's questions to general marshall virginia. fredericksburg, oct. political questions _addressed to general_ marshall _with his answer thereto_ to j. marshall, esq. richmond, sept. . dear sir, under a conviction that it will be of utility, should the answers to the following questions be such as i anticipate, i state them with a confidence of your readiness to give replies. they will, at all events, greatly satisfy my mind. _ st._ do you not in heart, and sentiment, profess yourself an american--attached to the genuine principles of the constitution, as sanctioned by the will of the people, for their general liberty, prosperity and happiness? _ d._ do you conceive that the true interest and prosperity of _america_, is materially, or at all, dependent upon an alliance with any foreign nation? if you do, please state the causes, and a preference, if any exists, with the reasons for that preference. _ d._ are you in favor of an alliance, offensive and defensive, with _great britain_? in fine, are you disposed to advocate any other, or a closer connection with that nation, than exists at the ratification of the treaty of ? if so, please state your reasons. _ th._ by what general principles, in your view, have the measures of our administration and government, in respect to _france_, been consistent with true policy or necessity? and could not the consequences have been avoided by a different line of conduct on our part? _ th._ are you an advocate for the alien and sedition bills? or, in the event of your election, will you use your influence to obtain a appeal of these laws? a freeholder (_columbian centinel_, boston, mass., saturday, october , .) marshall's answers to freeholder's questions richmond, sept. , ' . dear sir:-- i have just received your letter of yesterday, [_sic_] and shall with equal candor and satisfaction, answer all your queries. every citizen has a right to know the political sentiments of the man who is proposed as his representative; and mine have never been of a nature to shun examination. to those who think another gentleman more capable of serving the district than myself, it would be useless to explain my opinions because whatever my opinions may be, they will, and ought, to vote for that other; but i cannot help wishing that those who think differently, would know my real principles, and not attribute to me those i never possessed; and with which active calumny has been pleased to asperse me. _answ._ . in heart and sentiment, as well as by birth and interest, i am an american, attached to the genuine principles of the constitution, as sanctioned by the will of the people, for their general liberty, prosperity and happiness. i consider that constitution as the rock of our political salvation, which has preserved us from misery, division and civil wars; and which will yet preserve us if we value it rightly and support it firmly. _ ._ i do not think the interest and prosperity of america, at all dependent on the alliance with any foreign nation; nor does the man exist who would regret more than myself the formation of such an alliance. in truth, america has, in my opinion, no motive for forming such connection, and very powerful motives for avoiding them. europe is eternally engaged in wars in which we have no interest; and with which the fondest policy forbids us to intermeddle. we ought to avoid any compact which may endanger our being involved in them. my sentiments on this subject are detailed at large in the beginning of the memorial addressed by the late envoys from the united states to the minister of foreign affairs of the french republic, where the neutrality of the united states is justified, and the reasons for that neutrality stated. _ rd._ i am not in favor of an alliance offensive and defensive with great britain nor for closer connection with that nation than already exists. no man in existence is more decidedly opposed to such an alliance, or more fully convinced of the evils that would result from it. i never have, in thought, word, or deed, given the smallest reason to suspect i wished it; nor do i believe any man acquainted with me does suspect it. those who originate and countenance such an idea, may (if they know me) design to impose on others, but they do not impose on themselves. the whole of my politics respecting foreign nations are reducible to this single position. we ought to have commercial intercourse with all, but political ties with none. let us buy cheap and sell as dear as possible. let commerce go wherever individual, and consequently national interest, will carry it; but let us never connect ourselves politically with any nation whatever. i have not a right to say, nor can i say positively, what are the opinions of those who administer the government of the united states; but i believe firmly that neither the president, nor any one of those with whom he advises, would consent to form a close and permanent political connection with any nation upon earth. should france continue to wage an unprovoked war against us, while she is also at war with britain, it would be madness and folly not to endeavor to make such temporary arrangements as would give us the aid of the british fleets to prevent our being invaded; but i would not, even to obtain so obvious a good, make such a sacrifice as i think we should make, by forming a permanent political connection with that, or any other nation on earth. _ th._ the measures of the administration and government of the united states with respect to france have in my opinion been uniformly directed by a sincere and unequivocal desire to observe, faithfully, the treaties existing between the two nations and to preserve the neutrality and independence of our country.--had it been possible to maintain peace with france without sacrificing those great objects, i am convinced that our government would have maintained it. unfortunately it has been impossible. i do not believe that any different line of conduct on our part, unless we would have relinquished the rights of self government, and have become the colonies of france, could have preserved peace with that nation.--but be assured that the primary object of france is and for a long time past has been, dominion over others. this is a truth only to be disbelieved by those who shut their eyes on the history and conduct of that nation. the grand instruments by which they effect this end, to which all their measures tend, are immense armies on their part, and divisions, which a variety of circumstances have enabled them to create, among those whom they wish to subdue. whenever france has exhibited a disposition to be just toward the united states, an accurate attention to facts now in possession of the public, will prove that this disposition was manifest in the hope of involving us in her wars, as a dependent and subordinate nation. _ th._ i am not an advocate for the alien and sedition bills; had i been in congress when they passed, i should, unless my judgment could have been changed, certainly have opposed them. yet, i do not think them fraught with all those mischiefs which many gentlemen ascribe to them. i should have opposed them because i think them useless; and because they are calculated to create unnecessary discontents and jealousies at a time when our very existence, as a nation, may depend on our union-- i believe that these laws, had they been opposed on these principles by a man, not suspected of intending to destroy the government, or being hostile to it, would never have been enacted. with respect to their repeal, the effort will be made before i can become a member of congress. if it succeeds there will be an end of the business--if it fails, i shall on the question of renewing the effort, should i be chosen to represent the district, obey the voice of my constituents. my own private opinion is, that it will be unwise to renew it for this reason: the laws will expire of themselves, if i recollect rightly the time for which they are enacted, during the term of the ensuing congress. i shall indisputably oppose their revival; and i believe that opposition will be more successful, if men's minds are not too much irritated by the struggle about a repeal of laws which will, at the time, be expiring of themselves. j. marshall. (from _times and virginia advertiser_, alexandria, va., oct. , .) works cited in this volume works cited in this volume _the material given in parentheses and following certain titles indicates the form in which those titles have been cited in the footnotes._ adams, charles francis, _editor_. _see_ adams, john. works. adams, henry. the life of albert gallatin. philadelphia. . (adams: _gallatin_.) _see also_ gallatin, albert. writings. adams, john. works. edited by charles francis adams. vols. boston. . (_works_: adams.) ---- old family letters. copied from the originals for alexander biddle. philadelphia. . (_old family letters._) ---- correspondence between the honorable john adams, late president of the united states, and the late william cunningham. boston. . (_cunningham letters._) _see also_ wood, john. history of administration of john adams. adams, john quincy. writings. edited by worthington chauncey ford. vols. new york. . (_writings, j. q. a._: ford.) allen, gardner weld. our naval war with france. boston. . (allen: _our naval war with france_.) ---- our navy and the barbary corsairs. boston. . (allen: _our navy and the barbary corsairs_.) ambler, charles henry. sectionalism in virginia, from to . chicago. . (ambler.) _american historical and literary curiosities._ _see_ smith, john jay, and watson, john fanning, _joint editors_. _american historical review._ managing editor, j. franklin jameson. vols. - . new york. - . (_amer. hist. rev._) _american remembrancer, the_; or an impartial collection of essays, resolves, speeches, &c., relative, or having affinity to, the treaty with great britain. vols. philadelphia. . (_american remembrancer._) _american state papers._ documents, legislative and executive, of congress of the united states. selected and edited under the authority of congress. vols. washington, d.c. - . [all citations in this work are from foreign relations, class i, unless otherwise stated in the notes.] (_am. st. prs._) ames, fisher. works, from his speeches and correspondence. edited by his son, seth ames. vols. boston. . (_works_: ames.) anderson, dice robins. william branch giles: a study in the politics of virginia and the nation from to . menasha, wisconsin. . (anderson.) austin, james t. the life of elbridge gerry, with contemporary letters. vols. boston. - . (austin: _gerry_.) avery, elroy mckendree. a history of the united states and its people. vols. cleveland. - . (avery.) bassett, john spencer. the federalist system, - . [volume of the american nation.] new york. . (bassett.) bayard, james a. papers, from to . edited by elizabeth donnan. washington. . [volume of _annual report of the american historical association_ for .] (_bayard papers_: donnan.) beard, charles a. an economic interpretation of the constitution of the united states. new york. . (beard: _econ. i. c._) ---- economic origins of jeffersonian democracy. new york. . (beard: _econ. o. j. d._) beaumarchais, pierre augustin caron de. beaumarchais et son temps. _see_ loménie, louis de. bee, thomas. reports of cases decided in the district court of south carolina and cases determined in other districts of the united states. philadelphia. . (bee's _reports_.) benton, thomas hart. _see_ united states. congress. abridgment of the debates. binney, horace. eulogy on john marshall, reprinted. _see_ dillon, john f. blennerhassett, charlotte julia [von leyden], _lady_. talleyrand. by lady blennerhassett (gräfin leyden). translated from the german by frederick clarke. vols. london. . (blennerhassett: _talleyrand_.) bonaparte, napoleon. life. _see_ sloane, william milligan. _also see_ lanfrey, pierre. history of napoleon first. brackenridge, henry m. history of the western insurrection in pennsylvania, commonly called the whiskey insurrection, . pittsburgh. . (brackenridge: _history of the western insurrection_.) branch, john p. historical papers, issued by the randolph-macon college, ashland, virginia. richmond. . (_branch historical papers._) brissot de warville, jean pierre. new travels in the united states of america, performed in . dublin. . (de warville.) broglie, _duc_ de, _editor_. _see_ talleyrand, prince de. memoirs. brown, william garrott. the life of oliver ellsworth. new york. . (brown: _ellsworth_.) burk, john daly. the history of virginia, from its first settlement to the present day. continued by skelton jones and louis hue girardin. vols. richmond. - . (burk.) burke, edmund. works, with a memoir. vols. new york. . (_works_: burke.) burr, aaron. memoirs. _see_ davis, matthew l. _also see_ parton, james. life and times of aaron burr. cabot, george. _see_ lodge, henry cabot. life and letters of george cabot. _calendar of virginia state papers and other manuscripts._ preserved in the capitol at richmond. vols. - . richmond. - . (_cal. va. st. prs._) callender, john thomas. the prospect before us. richmond. . (callender: _the prospect before us_.) channing, edward. a history of the united states. [vols. - .] new york. - . (channing.) chastellux, _marquis_ f. j. de. travels in north america in the years - - . new york. . (chastellux.) christian, william asbury. richmond, her past and present. richmond. . (christian.) cobbett, william. porcupine's works, to . vols. london. . (cobbett.) conway, moncure daniel. omitted chapters of history, disclosed in the life and papers of edmund randolph. new york. . (conway.) _also see_ paine, thomas. writings. coxe, tench. an examination of the conduct of great britain respecting neutrals. philadelphia. . (coxe: _an examination of the conduct of great britain respecting neutrals_.) cunningham, william. _see_ adams, john. correspondence. dallas, a. j. _see_ united states. supreme court reports. davis, john. travels of four years and a half in the united states of america. - . london. . (davis.) davis, matthew l. memoirs of aaron burr, with miscellaneous selections from his correspondence. vols. new york. . (davis: _burr_.) _dedham [mass.] historical register._ vols. - . dedham historical society, dedham, mass. - . (_dedham historical register._) de warville. _see_ brissot de warville, jean pierre. dillon, john f., _compiler_. john marshall, life, character, and judicial services. (including the classic orations of binney, story, phelps, waite, and rawle.) vols. chicago. . (story, in dillon; and binney, in dillon.) dodd, william e. statesmen of the old south, or from radicalism to conservative revolt. new york. . (dodd.) donnan, elizabeth, _editor_. _see_ bayard, james a. papers. eckenrode, h. j. the revolution in virginia. boston. . (eckenrode: _r. v._) ---- separation of church and state in virginia. a study in the development of the revolution. richmond. . [special report of the department of archives and history of the virginia state library.] (eckenrode: _s. of c. and s._) ellsworth, _chief justice_ oliver. life. _see_ brown, william garrott. findley, william. history of the insurrection, in the four western counties of pennsylvania, in the year . philadelphia. . (findley: _history of the western insurrection_.) flanders, henry. the lives and times of the chief justices of the supreme court of the united states. vols. philadelphia. . (flanders.) ford, paul leicester, _editor_. _see_ jefferson, thomas. works. ford, worthington chauncey, _editor_. _see_ jefferson, thomas. correspondence. _also see_ washington, george. writings. and _see also_ adams, john quincy. writings. _also see_ vans murray, william. letters. freneau, philip. poems of philip freneau. edited by fred lewis pattee. vols. princeton. - . (freneau.) funck-brentano, frantz. legends of the bastille, translated by george maidment. london. . (funck-brentano: _legends of the bastille_.) gallatin, albert. writings. edited by henry adams. vols. philadelphia. . (gallatin's _writings_: adams.) _see also_ adams, henry. life of albert gallatin. garland, hugh a. life of john randolph of roanoke. vols. new york. . (garland: _randolph_.) gay, sydney howard. james madison. [american statesmen series.] boston. . gibbs, george, _editor_. _see_ wolcott, oliver. memoirs of the administrations of washington and john adams. (gibbs.) gilman, daniel c. james monroe, in his relations to the public service during half a century. to . [american statesmen series.] boston. . gilmer, francis walker. sketches, essays, and translations. baltimore. . (gilmer.) graydon, alexander. memoirs of his own time, with reminiscences of the men and events of the revolution. edited by john stockton littell. philadelphia. . (graydon.) _green bag, the_; an entertaining magazine for lawyers. edited by horace w. fuller. vols. - . boston. - . [after consolidated with _the central law journal_.] (_green bag._) grigsby, hugh blair. the history of the virginia federal convention of . virginia historical society. richmond. . [volume is volume , new series. volume is volume , new series.] (grigsby.) hamilton, alexander. works. edited by john c. hamilton. vols. new york. . (_works_: hamilton.) ---- works. edited by henry cabot lodge. [federal edition.] vols. new york. . (_works_: lodge.) hamilton, john c., _editor_. history of the republic of the united states, as traced in the writings of alexander hamilton and his contemporaries. vols. new york. - . (hamilton: _history of the republic_.) _see also_ hamilton, alexander. works. hamilton, stanislaus murray, _editor_. _see_ monroe, james. writings. hazen, charles downer. contemporary american opinion of the french revolution. baltimore. . (hazen.) hening, william waller. _see_ virginia. laws. henry, patrick. life, correspondence, and speeches. edited by william wirt henry. vols. new york. . (henry.) _see also_ wirt, william. sketches of life and character of patrick henry. henry, william wirt, _editor_. _see_ henry, patrick. life, correspondence, and speeches. hildreth, richard. history of the united states. vols. new york. - . (hildreth.) _historical magazine and notes and queries concerning the antiquities, history, and biography of america._ [ st series.] vols. - . new york. - . (_hist. mag._) howe, henry. historical collections of virginia. charleston, s.c. . (howe.) hudson, frederic. journalism in the united states from to . new york. . (hudson: _journalism in the united states_.) hunt, gaillard, _editor_. _see_ madison, james. writings. _interesting state papers_, from president washington, m. fauchet, and m. adet, etc.; quoted by edmund randolph, secretary of state, in his defense of his resignation of that office. philadelphia. . (_interesting state papers._) iredell, james. _see_ mcree, griffith j. life and correspondence of james iredell. jay, john. correspondence and public papers. edited by henry p. johnston. vols. new york. . (_jay_: johnston.) jefferson, thomas. works. edited by paul leicester ford. federal edition. vols. new york. . (_works_: ford.) _see_ morse, john t. thomas jefferson. _and see_ randall, henry s. life of thomas jefferson. _also see_ tucker, george. life of thomas jefferson. _and see_ parton, james. life of thomas jefferson. johnston, henry p., _editor_. _see_ jay, john. correspondence and public papers. johnston, mary. lewis rand. boston. . jones, hugh. the present state of virginia. london. . (jones.) kennedy, john p. memoirs of the life of william wirt. vols. philadelphia. . (kennedy.) king, charles r., _editor_. _see_ king, rufus. life and correspondence. king, rufus. life and correspondence. edited by charles r. king. vols. new york. . (king.) lancaster, robert a., jr. historic virginia homes and churches, with illustrations. philadelphia. . lanfrey, pierre. the history of napoleon the first. vols. london. - . (lanfrey: _napoleon_.) la rochefoucauld-liancourt, franÇois alexandre frÉdÉric, _duc_ de. travels through the united states of north america. vols. london. . (la rochefoucauld.) _lippincott's monthly magazine._ a popular journal of general literature. [ st series.] vols. - . philadelphia. - . (_lippincott's magazine._) lodge, henry cabot. life and letters of george cabot. boston. . (lodge: _cabot_.) ---- george washington. vols. boston. . [american statesmen.] (lodge: _washington_.) _see also_ hamilton, alexander. works. loliÉe, frÉdÉric. prince talleyrand and his times. adapted by bryan o'donnell. london. . (loliée: _talleyrand and his times_.) lomÉnie, louis de. beaumarchais et son temps. vols. paris. . (loménie: _beaumarchais et son temps_.) loring, james spear. the hundred boston orators. boston. . (loring: _hundred boston orators_.) _louisiana law journal._ edited by gustavus schmidt. [ vol.] new orleans. - . lyman, theodore, jr. the diplomacy of the united states. vols. boston. . (lyman: _diplomacy of the united states_.) maccabe, joseph. talleyrand, a biographical study. london. . (maccabe: _talleyrand_.) mchenry, james. life and correspondence. _see_ steiner, bernard c. mcmaster, john bach. a history of the people of the united states. vols. new york. . (mcmaster.) mcree, griffith, j. life and correspondence of james iredell. vols. new york. . (mcree.) madison, james. writings. edited by gaillard hunt. vols. new york. . (_writings_: hunt.) _see also_ rives, william c. history of life and times. _and see_ gay, sydney howard. james madison. marshall, humphrey. the history of kentucky. vols. frankfort. . (humphrey marshall.) marshall, john. autobiography. _see_ smith, john jay _and_ watson, john fanning, _joint editors_. american historical and literary curiosities. (_autobiography._) ---- same. in national portrait gallery of eminent americans. paintings by alonzo chappel, and biographical and historical narratives by evert a. duyckinck. vols. new york. . ---- same, reprinted. _see_ dillon, john f. ---- life of george washington. [ st edition.] vols. philadelphia. . [ d edition.] vols. philadelphia. . [the d edition is cited in this work unless otherwise stated in the notes.] (marshall.) _see also_ thayer, james bradley. john marshall. _and see_ flanders, henry. lives of the chief justices. _also see_ van santvoord, george. sketches of the lives of the chief-justices. mason, george. life. _see_ rowland, kate mason. _massachusetts historical society._ collections. [series vii.] vols. - . boston. - . (mass. hist. soc. coll.) meade, _bishop_ william. old churches, ministers, and families of virginia. vols. richmond. . (meade.) monroe, james. writings. edited by stanislaus murray hamilton. vols. [unfinished work.] new york. - . (monroe's _writings_: hamilton.) moore, frank. american eloquence, a collection of speeches and addresses by the most eminent orators of america. vols. new york. . (moore: _american eloquence_.) mordecai, samuel. richmond in by-gone days, being reminiscences of an old citizen. richmond. . (mordecai.) morison, samuel eliot. the life and letters of harrison gray otis, federalist, - . vols. boston. . (morison.) morris, gouverneur. diary and letters. edited by anne cary morris. vols. london. . (morris.) morris, robert. _see_ oberholtzer, ellis paxton. robert morris. morse, john t. thomas jefferson. boston. . [american statesmen.] (morse.) munford, george wythe. the two parsons; cupid's sports; the dream; and the jewels of virginia. richmond. . (munford.) _new jersey historical society._ proceedings. vols. - . newark. - . (_proc._, n.j. hist. soc.) _north american review._ vols. - . boston. - . oberholtzer, ellis paxton. robert morris, patriot and financier. new york. . (oberholtzer.) otis, harrison gray. life and letters. _see_ morison, samuel eliot. paine, robert treat, jr. works, in verse and prose, with sketches of his life, character, and writings. boston. . (_works of robert treat paine._) paine, thomas. writings. edited by moncure daniel conway. vols. new york. - . (_writings_: conway.) parton, james. the life and times of aaron burr. [fourteenth edition.] new york. . (parton: _burr_.) ---- life of thomas jefferson. boston. . paulding, james k. a life of washington. vols. . [harper's family library. stereotype edition, .] (paulding.) paxton, william m. the marshall family, or a genealogical chart of the descendants of john marshall and elizabeth markham. cincinnati. . (paxton.) pecquet du bellet, louise. some prominent virginia families. vols. lynchburg, va. . (pecquet du bellet.) _pennsylvania magazine of history and biography._ published by the historical society of pennsylvania. vols. - . philadelphia. - . (_pa. mag. hist. and biog._) perkins, james breck. france in the american revolution. boston. . (perkins: _france in the american revolution_.) pickering, octavius. life of timothy pickering, by his son and continued by charles w. upham. vols. boston. - . (pickering: _pickering_.) pickering, timothy. life. _see_ pickering, octavius. randall, henry s. life of thomas jefferson. vols. new york. . (randall.) randolph, edmund. life and papers. _see_ conway, moncure daniel. randolph, john. life. _see_ garland, hugh a. richardson, james d. a compilation of the messages and papers of the presidents. - . vols. washington, d.c. - . (richardson.) rives, william c. the history of the life and times of james madison. vols. boston. . (rives.) rowland, kate mason. life of george mason. vols. new york. . (rowland.) schmidt, gustavus, _editor_. _see_ louisiana law journal. schoepf, johann david. travels in the confederation, - . translated and edited by alfred j. morrison. vols. philadelphia. . (schoepf.) schouler, james. history of the united states of america under the constitution. - . vols. washington, d.c. - . (schouler.) scott, john, of fauquier county, va. the lost principle. by "barbarossa" [_pseud._]. richmond. . (scott.) sloane, william milligan. life of napoleon bonaparte. vols. new york. - . (sloane: _life of napoleon_.) smith, john jay, _and_ watson, john fanning, _joint editors_. _american historical and literary curiosities._ new york. . (_am. hist. and lit. curiosities._) _southern literary messenger._ vols. - . new york and washington. - . sparks, jared. correspondence of the american revolution [being letters of eminent men to george washington]. vols. boston. . (_cor. rev._: sparks.) _see also_ washington, george. writings. steiner, bernard c. the life and correspondence of james mchenry. cleveland. . (steiner.) story, joseph. discourse on john marshall, reprinted. _see_ dillon, john f. _also see_ story, william wirt. story, william wirt. life and letters of joseph story. vols. boston. . (story.) talleyrand-pÉrigord, charles maurice de, _prince_ de bÉnevÉnt. memoirs. edited by the duc de broglie. vols. new york. . (_memoirs of talleyrand_: broglie's ed.) ---- memoirs. [edited] by [---- stewarton] the author of the revolutionary plutarch. vols. london. . (_memoirs of talleyrand_: stewarton.) _see_ loliée, frédéric. talleyrand and his times. _also see_ blennerhassett, charlotte julia, _lady_. talleyrand. _and see_ maccabe, joseph. life. thayer, james bradley. john marshall. boston. . [riverside biographical series, no. .] (thayer.) thompson, john, of petersburg, virginia. the letters of curtius. richmond. . (thompson: _letters of curtius_.) ticknor, anna, _and_ hillard, george s., _joint editors_. _see_ ticknor, george. life, letters, and journals. ticknor, george. life, letters, and journals. edited by anna ticknor and george s. hillard. vols. boston. . (ticknor.) tucker, george. life of thomas jefferson. vols. philadelphia. . (tucker.) _united states._ congress. debates and proceedings in the congress of the united states. [ st congress, st session, to th congress, st session; mar. , to may , .] vols. washington, d.c. - . ---- benton, thomas hart. abridgment of the debates of congress from to . vols. new york. - . united states. state trials. state trials of the united states during the administrations of washington and adams. by francis wharton. philadelphia. . (wharton: _state trials_.) united states. supreme court reports. dallas, a. j. reports of the cases ruled and adjudged in the courts of pennsylvania before and since the revolution. philadelphia. vols. - . van santvoord, george. sketches of the lives and judicial services of the chief-justices of the supreme court of united states. new york. . (van santvoord.) van tyne, claude halstead. the loyalists in the american revolution. new york. . vans murray, william. letters to john quincy adams, - . edited by worthington chauncey ford. [reprinted from the _annual report of the american historical association_ for , pp. - .] washington. . (_letters_: ford.) virginia. house of delegates. journal of the virginia house of delegates. - . now in the archives of the virginia state library. (journal, h.d.) virginia. laws. hening, william waller. the statutes at large. being a collection of the laws of virginia from to . vols. new york. - . (hening.) virginia. laws. revised code, of the laws of virginia, being a collection of all such acts of the general assembly. [by william waller hening.] vols. richmond. . (laws of virginia, revised code, .) virginia. law reports. call, daniel. reports of cases argued and adjudged in the court of appeals of virginia. vols. richmond. - . (call.) virginia. law reports. washington, bushrod. reports of cases argued and determined in the court of appeals of virginia. vols. richmond. - . _virginia magazine of history and biography._ published by the virginia historical society. vols. - . richmond. - . (_va. mag. hist. and biog._) von holst, h. the constitutional and political history of the united states, by dr. h. von holst. [translated from the german by john j. lalor, and alfred b. mason.] vols. chicago. . (von holst: _constitutional history of the united states_.) warville. _see_ brissot de warville. washington, bushrod. _see_ virginia. law reports. washington, george. diary from to . edited by benson j. lossing. new york. . (washington's _diary_: lossing.) ---- writings. edited by worthington chauncey ford. vols. new york. - . (_writings_: ford.) ---- writings. edited by jared sparks. vols. boston. - . (_writings_: sparks.) _and_ lodge, henry cabot. george washington. _also_ marshall, john. life of george washington. _also see_ paulding, james k. life of washington. washington, h. a., _editor_. _see_ jefferson, thomas. writings. watson, john fanning. annals of philadelphia and pennsylvania, in the olden time. vols. philadelphia. - . (watson: _annals of philadelphia_.) weld, isaac. travels through the states of north america, and the provinces of upper and lower canada during the years , , and . [ d edition.] vols. london. . (weld.) wharton, francis. _see_ united states. state trials. wirt, william. the letters of the british spy. [ th edition.] baltimore. . (wirt: _british spy_.) ---- sketches of the life and character of patrick henry. philadelphia. . (wirt.) _see_ kennedy, john p. memoirs of william wirt. wise, john sergeant. the end of an era. boston. . (wise: _the end of an era_.) wolcott, oliver. memoirs of the administrations of washington and john adams. edited from the papers of oliver wolcott, by george gibbs. vols. new york. . (gibbs.) wood, john. history of administration of john adams, esq. late president of the united states. new york. . (wood.) * * * * * transcriber's notes: . passages in italics are surrounded by _underscores_. . obvious errors in spelling and punctuation have been corrected. . footnotes have been renumbered and moved from the page end to the end of their respective chapters. . images have been moved from the middle of a paragraph to the closest paragraph break. . certain words use an oe ligature in the original. . carat character (^) followed by a single letter or a set of letters in curly brackets is indicative of subscript in the original book. google books library project (http://books.google.com) note: images of the original pages are available through the the google books library project. see http://books.google.com/books?vid= y s gn c&id transcriber's note: text enclosed by underscores is in italics (_italics_). atrocious judges. lives of judges infamous as tools of tyrants and instruments of oppression. compiled from the judicial biographies of john lord campbell, lord chief justice of england. with an appendix, containing the case of passmore williamson. edited, with an introduction and notes, by richard hildreth. new york and auburn: miller, orton & mulligan. new york: park row.--auburn: genesee street. . entered, according to act of congress, in the year , by richard hildreth, in the clerk's office of the district court of the district of massachusetts. stereotyped at the boston stereotype foundry. advertisement. the text of the following book of judges has been derived from lord campbell's _lives of the chief justices, and lives of the chancellors_, with only a few verbal alterations for the sake of connection, some transpositions, the omission of some details of less interest to the american reader, and the insertion of a few paragraphs, enclosed in brackets, thus [ ]. most biographers have been arrant flatterers. lord campbell is a distinguished member of that modern school, which holds that history is of no dignity nor use, except so far as it is true; and that the truth is to be told at all hazards and without reserve. hitherto social and political position, obtained no matter by what means, has in general secured not only present but future reputation. it can hardly fail to be a serious check upon those who struggle for distinction to understand, that, however they may cheat or dazzle their contemporaries, they must expect to encounter from posterity a rhadamantine judgment. the object of the present work, prepared as it is in the interest of justice and freedom, and designed to hold up a mirror to magistrates now sitting on the american bench, in which "to show virtue her own feature, scorn her own image, and the very life and body of the time his form and pressure," will, i hope, induce lord campbell to pardon the liberty i have ventured to take with his writings. r. h. boston, _november , _. contents. introduction. the administration of justice the great end of government, page . polity of the anglo-saxons, . county courts, . policy of the norman conquerors, . their scheme for the administration of justice, . aula regis, or king's court, . law proceedings become a mystery, . division of the aula regis, . king's bench, . common pleas, . exchequer, . court of chivalry, or honor court, . origin of the legal profession as it exists at present--inns of court, . special pleadings, . serjeants, barristers, and attorneys, . justices of the peace, . appeals to parliament, . trial by jury, . nisi prius trials, . usurpations of the courts upon each other, . court of chancery, . court of admiralty, . use of torture, . suits for slander in the court of chivalry, . the courts the ready tools of executive usurpation, . courts of star chamber and high commission, . sources and object of the present compilation, . bearing of the following narratives on passing events, . chapter i. roger le brabancon. his ancestry, page . made a judge, . edward i. claims sovereignty over scotland, . the family of bruce, . robert de brus, . contest for the scottish throne, . brabancon maintains edward's claim, . is rewarded with the office of chief justice, . chapter ii. robert tresilian. appointed chief justice, . ready for any dirty work, . judicial opinion in favor of the arbitrary power of the king, . preparations for judicial murders, . the barons march on london, . tresilian appealed of high treason, . found guilty, . arrest and execution, . chapter iii. thomas billing. lancastrians and yorkists, . fortescue and markham, . removal of markham, . billing a judge, . his infamous character, . his previous life, . begins a lancastrian, . the yorkists having triumphed, becomes a yorkist, . made a judge, . trial of walker, . a court favorite, . chief justice, . trial of sir thomas burdett, . lancastrian revolution, . billing changes, and keeps his place, . yorkist revolution, . billing changes again, and keeps his place, . procures a pardon for fortescue, . his law decisions, . trial of the duke of clarence, . billing's death, . chapter iv. john fitzjames. a friend of wolsey's, . who makes him attorney general, . prosecution of buckingham, . made a judge, . chief justice, . turns against wolsey after his fall, . ecclesiastical pretensions of henry viii., . trial of fisher, . trial of sir thomas more, . trials of the supposed gallants of anne boleyn, . fitzjames's opinion as to the mode of anne boleyn's execution, . his death, . chapter v. thomas fleming. a rival of bacon's, . his origin and progress, . solicitor general, . speaker of the house of commons, . bacon his rival there, . fleming chief baron of the exchequer, . his judgment in the case of impositions, . made chief justice, . case of the postnati, . trial of the countess of shrewsbury, . wholly eclipsed by sir edward coke, . his death, . chapter vi. nicholas hyde. plan of charles i. to rule without parliaments, . sir randolph crewe, chief justice, discharged to make room for hyde, . his family and previous career, . case of sir thomas darnel, . petition of right, . hyde's opinion that it would not be binding on the king, . proceedings against selden and others, . hyde's death, . much applauded by true courtiers, . chapter vii. john brampston. charles i. perseveres in his arbitrary schemes, . brampston's previous life, . appointed chief justice, . contrast between his personal and political character, . opinion in favor of ship money, . trial of hampden, . lord say's case, . trial of rev. thomas harrison, . brampston as a star chamber judge, . case of the bishop of lincoln, . long parliament, . brampston impeached, . turns about on the question of ship money, . parliament appeased, . summoned by charles to join him at his camp, . superseded, . death and character, . chapter viii. robert heath. his origin and high prerogative principles, . solicitor general, . attorney general, . his share in the trial of darnel, . holds the petition of right illegal, . his part in the trial of selden and his followers, . schemes for raising money, . chief justice of the common pleas, . his removal from office, . returns to practice, . judge of the king's bench, . chief justice, . his acts as such, . flies to the continent, . death and character, . chapter ix. robert foster. reorganization of the bench at the restoration, . foster's early life, . judge of the common pleas, . joins the king at oxford, . removed by parliament, . returns to practice, . reappointed a judge by charles ii., . chief justice, . trial of vane, . case of john crook, . case of tonge and others, . death, . chapter x. robert hyde. his connections and early history, . a judge of the common pleas, . chief justice of the king's bench--his installation, . trial of a printer, . trial of keach for libel, . introduces the practice of fining juries, . cried up as an eminent judge, . drops dead, . chapter xi. john kelynge. appointed a judge, . previous career, . conducts the prosecution of colonel hacker, . made chief justice over sir matthew hale's head, . his behavior, . moorfields rioters held guilty of treason, . american application of this doctrine, , _note_. treatment of juries, . conduct investigated by the house of commons, . tame for the rest of his days, . his reports, . chapter xii. william scroggs. his early life, . judge of the common pleas, . chief justice of the king's bench, . favors the popish plot delusion, . american counterpart of that plot, , _note_. trial of godfrey, . of others, . of bromwich, . scroggs changes his policy, . wakeman acquitted, . scroggs attacked by the mob, . his defence, . castlemaine acquitted, . trial of mrs. collier, . charges to grand juries, . attack on the press, . conduct in shaftesbury's case, . charges made to the council against scroggs, . his trial, . house of commons inquires into his conduct, . general characteristics, . removal from office, . his subsequent life, . his infamy, . chapter xiii. francis north. his noble birth, . early life, . a court keeper, . called to the bar, . his early practice, . a lickspittle, . a leader at the bar, . makes his fortune by avowing "loyal" principles, . solicitor general, . his practice, . his loves, . marriage, . insignificant as a member of parliament, . attorney general, . fees in abundance, . chief justice of the common pleas, . conduct on the bench, . career as a politician, . legal oracle of the party of arbitrary power, . proclamation against coffee houses, . petitioners and abhorrers--north obstructs the right of petition, . parliamentary proceedings against him, . draws a declaration against the popular party, . trial of college, the protestant joiner, . proceedings against shaftesbury, . attack on the municipal privileges of london, . north made lord chancellor, . his disappointment and dissatisfaction, . assists at the inauguration of saunders, . his conduct as a law reformer and equity judge, . as a statesman, . joins in the proceedings against the charter of london, . made a peer--disfranchises many towns, . dismisses burnet, . rye house plot, . jeffreys his rival, . his mortifications, . triumphs over jeffreys in the matter of the recusants, . death of charles ii., . continued in office by james ii., . puts the seal to a questionable proclamation, . parliament meets, . north snubbed, . clings to office, . still thwarted and browbeaten by jeffreys, . further mortifications, . his dejection and misery, . monmouth's insurrection, . his conduct as to the prisoners, . death and character, . jokes upon him, . his writings, . his method of living, . his domestic relations, . descendants, . his early death, . his life by roger north, . chapter xiv. edmund saunders. motives of his appointment, . early history, . called to the bar, . his practice, . his reports, . not desirous of preferment, . counsel for the crown, . advises a _quo warranto_ against the city of london, . appointed chief justice, . his conduct in the london case, . judgment of the court pronounced by justice jones, . trial of lord grey, . sudden death, . his appearance and manners, . his reports, . chapter xv. george jeffreys. his parentage, . school days, . scheme of becoming a great lawyer, . a student at the inner temple, . associates with the popular leaders, . extravagance and poverty, . precocity, . admitted to the bar, . difficulties and energy, . marriage, . practises at the old bailey and london sessions, . his forensic abilities, . common serjeant of the city of london, . his contrivances to get on, . opens a communication with the court, . recorder of london, . repudiates the liberals, . his policy as to the popish plot, . his sentences of death, . conduct in a libel case, . made chief justice of chester, . his overbearing insolence, . visits his father, . proceedings against him in parliament, . resigns his recordership, . complimented by the king, . chairman of the middlesex sessions, . counsel for the crown against fitzharris, plunkett, and college, . takes part in other court prosecutions, . rye house trials, . appointed chief justice, . trial of algernon sidney, . case of sir thomas armstrong, . of sir william williams, . charters fall like jericho, . other trials before him, . rules london with a rod of iron, . reappointed chief justice by james ii., . trial of titus oates for perjury, . baxter's trial, . jeffreys raised to the peerage, . he rivals north, . his bloody assize, . lady lisle's trial, . other incidents of the bloody assize, . proceedings at bristol, . in somersetshire, . prideaux's case, . an apologist for jeffreys, . tutchin's case, _note_, . james or jeffreys? . made lord chancellor, . hangs an alderman, . meeting of parliament, . scheme of dispensing with the test act, . opinions of the judges in favor of the dispensing power, . embassy to the pope, . court of high commission revived, . its proceedings, . lord delamere's trial, . proceedings against the fellows of magdalen college, . prosecution of the seven bishops, . rivals of jeffreys, . birth of the pretender, . william of orange lands in england, . james attempts reconciliation, . advance of william, . james flies, . terror of jeffreys, . search for him, . his arrest, . committed to the tower, . james seeks to make him a scapegoat, . assailed by the press, . presented with a halter, . petition against him, . his death, . domestic life, . his descendants, . person and manners, . merits as a civil judge, . chancery reforms, . his opinion in favor of allowing counsel to prisoners, . his infamy deserved, . chapter xvi. robert wright. his parentage, youth, vices, and marriage, . his practice, . his pecuniary embarrassments and frauds, . becomes a favorite of jeffreys, . who makes him a judge, . attends jeffreys in his bloody assize, . made chief justice, . orders an illegal execution, . aids in forcing catholic fellows on magdalen college, . sits in the court of high commission, . volunteers an extrajudicial opinion in favor of the declaration of indulgence, . attempts to force it to be read at serjeant's inn chapel, . trial of the seven bishops, . at first unmolested after william of orange lands, . arrested, and dies in newgate, . his profligacy, . necessity of exposing wicked judges, . appendix.--case of passmore williamson, - introduction hume observes, in his history of england, that "among a people who lived in so simple a manner as the anglo-saxons, the judicial power is always of greater importance than the legislative." the same comparison will hold good even in communities far more advanced in civilization than the anglo-saxons. it has indeed been well said that the great end of the complicated machinery of the existing british government is to get twelve men into a jury box. it might even be laid down as a general principle that the freedom or servitude of a people will mainly depend upon the sort of administration of justice which they have--especially of criminal justice. the whole course of british history will serve to justify this observation, since it has not been so much by the aid of mercenary soldiers, as by the assistance of lawyers and judges, that tyranny has sought to introduce itself into that country. it is in the history of the english courts, still more than in the history of the english parliament, that we are to trace the origin and growth of those popular rights and of that idea of public liberty, propagated from england to america, and upon which our anglo-american free institutions are mainly founded. the origin of british liberty, by an ancient, constant, and affectionate tradition, has uniformly been traced back to the times of the anglo-saxons. it was, however, by judicial, far more than by legislative institutions, that among those progenitors of ours private rights and public liberty were guarantied. the smallest political subdivision among the anglo-saxons was the tything, (_teothing_,) consisting of ten families, the members of which were responsible for the good conduct of each other. the head man of this community, denominated tything-elder, (_teothing ealdor_,) seems to have acted as a kind of arbitrator in settling disputes about matters of a trifling nature; but whether he had actually a court for administering justice does not appear. next in order came the hundred, (_hundrede_,) or, as it was called in the north of england, the _wapentake_, in its original constitution consisting of ten tythings, or a hundred families, associated together by a similar bond of mutual responsibility. its head man was called the hundred's elder, (_hundredes ealdor_,) or simply reeve, (_gerefa_,) that being the generic term for the officer of any district, or indeed for any officer.[ ] this gerefa, along with the bishop of the diocese, acted as the presiding officer of the hundred court, which met once at least every month, and had both civil and criminal jurisdiction, and cognizance also of ecclesiastical causes, which were entitled to precedence over every other business. there was besides a shire or county court (_shir-gemot_) held twice every year, or oftener if occasion required, convened by the sheriff, (_shir-reeve_,) or, as he was sometimes also called, the alderman, (_ealdor-man_,) who presided over it, assisted by the bishop. here causes were decided and business was transacted which affected the inhabitants of several of the hundreds. the highest court of all was that of the king, the wittenagemot, (_witan-gemot_,) in which he himself was present, attended by his councillors, or _witan_. this body, which united the functions of a legislative, judicial, and executive council, had no fixed times or place of meeting, but was held as occasion required, wherever the king happened to be. as to its judicial functions, it was in general only a court of extraordinary resort; it being a rule of the anglo-saxon law that none should apply for justice to the king unless he had first sought it in vain in the local courts.[ ] hence the hundred and county courts occupied by far the most conspicuous position in the anglo-saxon judicial polity. the anglo-saxon shires, it may be observed, having been originally principalities, nearly, if not altogether, independent, but gradually united into one kingdom, were rather tantamount to our anglo-american states than to our counties, of which the saxon hundreds may be taken as the equivalent; the tythings corresponding to our anglo-american townships; while (to carry out the parallel) the central authority of the king and the wittenagemot may be considered as represented by our federal system generally. but though the reeve and the bishop presided in the local anglo-saxon courts, it was rather in the character of moderators than of judges; that latter function being performed by the freeholders of the county, all of whom, not less than the bishop and the reeve, had the right and were bound to give their attendance at these courts. "suits," says hume,[ ] "were determined in a summary manner, without much pleading, formality, or delay, by a majority of voices;[ ] and the bishop and alderman had no further authority than to keep order among the freeholders, and interpose with their opinion." these county courts, though traces of them are to be found in all the old teutonic states of europe, became ultimately peculiar to england. none of the feudal governments of continental europe had any thing like them; and hume, with his usual sagacity, has remarked that perhaps this institution had greater effects on the political system of england than has yet been distinctly pointed out. by means of this institution, all the freeholders were obliged to take a share in the conduct of affairs. drawn from that individual and independent state, so distinctive of the feudal system, and so hostile to social order and the authority of law, they were made members of a political combination, and were taught in the most effectual manner the duty and advantages of civic obedience by being themselves admitted to a share of civic authority. perhaps, indeed, in this anglo-saxon institution of hundred and county courts we are to seek the origin of that system of local administration and self-government still more fully carried out in america than in england, by which english and anglo-american institutions are so strongly distinguished from those of europe, and in the judicious combination of which with a central administration, for matters of general concern, british and american liberty, as a practical matter, mainly consists. one of the first procedures of the norman conqueror, by way of fixing his yoke upon the shoulders of the english people, was gradually to break down and belittle this local administration of justice. he did not venture, indeed, to abolish institutions so venerable and so popular, but he artfully effected his purpose by other means. he began by separating the civil and ecclesiastical jurisdictions. the bishops, according to a fashion recently introduced on the continent, were authorized to hold special courts of their own. these courts were at first limited to cases in which ecclesiastical questions were involved, or to which clergymen were parties but by the progress of an artful system of usurpations, familiar to the courts of all ages and nations, they gradually extended their authority to many purely lay matters, under pretence that there was something about them of an ecclesiastical character. it was under this pretence that the english ecclesiastical courts assumed jurisdiction of the important matters of marriage and divorce, of wills, and of the distribution of the personal property of intestates--a jurisdiction which they still retain in england, and which, though we never had any ecclesiastical courts in the united states of america, has left deep traces upon our law and its administration as to these subjects. in establishing these separate ecclesiastical courts, the conqueror made a serious departure from his leading idea of centralization; and he thereby greatly contributed to build up a distinct theocratic power, which afterwards, while intrenching on the rights of the laity, intrenched also very seriously on the authority of his successors on the throne. but this was a danger which either he did not foresee--since he possessed, though his next successor relinquished it, the sole power of appointing bishops--or which he overlooked in his anxiety to diminish the importance of the old saxon tribunals. both the civil and criminal authority of the local courts was greatly curtailed. their jurisdiction in criminal cases was restricted to small matters, and even as to questions of property was limited to cases in which the amount in dispute did not exceed forty shillings; though, considering the superior weight of the shilling at that time, the greater comparative value in those ages of the precious metals, and the poverty of the country, this was still a considerable sum. the general plan for the administration of justice of the anglo-norman government was a court baron in each of the baronies into which the kingdom was now parcelled out, to decide such controversies as arose between the several vassals or subjects of the same barony. hundred courts and county courts still continued from the saxon times, though with restricted authority, to judge between the subjects of different baronies; and a court composed of the king's great officers to give sentence among the barons themselves. of this court, which ultimately became known as _curia regis_, (king's court,) and sometimes as _aula regis_, (king's hall,) because it was held in the hall of the king's palace, and of its instrumentality in extending the royal authority, hume[ ] gives the following account: "the king himself often sat in his court, which always attended his person: he there heard causes and pronounced judgment; and though he was assisted by the advice of the other members, it is not to be imagined that a decision could easily be obtained contrary to his inclination or opinion.[ ] in the king's absence, the chief justiciary presided, who was the first magistrate of the state, and a kind of viceroy, on whom depended all the civil affairs of the kingdom.[ ] the other chief officers of the crown, the constable, marshal, seneschal, or steward, chamberlain, treasurer, and chancellor, were members, together with such feudal barons as thought proper to attend, and the barons of the exchequer, who at first were also feudal barons appointed by the king. this court, which was sometimes called the king's court, sometimes the court of exchequer, judged in all causes, civil and criminal, and comprehended the whole business which is now shared out among four courts--the chancery, the king's bench, the common pleas, and the exchequer. "such an accumulation of powers was itself a great source of authority, and rendered the jurisdiction of the court formidable to all the subjects; but the turn which judicial trials took soon after the conquest served still more to increase its authority, and to augment the royal prerogatives. william, among the other violent changes which he attempted and effected, had introduced the norman law into england, had ordered all the pleadings to be in that tongue, and had interwoven with the english jurisprudence all the maxims and principles which the normans, more advanced in cultivation, and naturally litigious, were accustomed to observe in the administration of justice. "law now became a science,[ ] which at first fell entirely into the hands of the normans, and even after it was communicated to the english, required so much study and application that the laity of those ignorant ages were incapable of attaining it, and it was a mystery almost solely confined to the clergy, and chiefly to the monks. "the great officers of the crown, and the feudal barons who were military men, found themselves unfit to penetrate into these obscurities; and though they were entitled to a seat in the supreme judicature, the business of the court was wholly managed by the chief justiciary and the law barons, who were men appointed by the king, and entirely at his disposal. this natural course of things was forwarded by the multiplicity of business which flowed into that court, and which daily augmented by the appeals from all the subordinate judicatures of the kingdom. for the great power of the conqueror established at first in england an authority which the monarchs in france were not able to attain till the reign of st. louis, who lived near two centuries after: he empowered his court to receive appeals both from the courts of barony and the county courts, and by that means brought the administration of justice ultimately into the hands of the sovereign.[ ] "and lest the expense or trouble of the journey to court should discourage suitors and make them acquiesce in the decision of the inferior judicatures, itinerant judges were afterwards established, who made their circuits through the kingdom and tried all cases that were brought before them. by this expedient the courts of barony were kept in awe, and if they still preserved some influence it was only from the apprehensions which the vassals might entertain of disobliging their superior by appealing from his jurisdiction. but the county courts were much discredited and as the freeholders were found ignorant of the intricate principles and forms of the new law, the lawyers gradually brought all business before the king's judges, and abandoned that convenient, simple, and popular judicature." the innovations of the conqueror and his successors having reduced the old local anglo-saxon tribunals to comparative insignificance, the whole judicial authority, except that which had been seized upon by the ecclesiastical courts, remained for a hundred and fifty years after the conquest concentrated in the aula regis. but as norman and saxon became thoroughly intermixed, with the first faint dawn of modern english liberty the judicial power thus thoroughly centralized became again subdivided and distributed, though in a manner very different from that of the saxon times. the anglo-norman kings of england were perpetually on the move: the only way of disposing of the products of the landed estates which scattered over england afforded the main part of the royal revenue, was to go thither with the royal household and consume it on the spot. wherever the king went, the aula regis followed, occasioning thereby great inconvenience and delay to suitors. this was complained of as a grievance, and the barons who extorted magna charta from their reluctant sovereign insisted, among other things, that _common pleas_, that is, civil suits between man and man, should be held in some certain place. it was in this provision of magna charta that originated the english court of common pleas, which became fixed at westminster hall, the place of session of the aula regis when the king was in the vicinity of london. this court of common pleas, or common bench as it was sometimes called, seems to have been at first but a mere committee of the aula regis; and the disintegration of that tribunal, thus begun, was, on the accession of edward i. in , completed by its resolution into three or rather five distinct tribunals. of these new courts, that which more immediately represented the aula regis was the court of king's bench, which still continued to follow the king and to be held in his presence. in the language of its process, such is still supposed to be the case; but like the other english courts, it has long since been fixed at westminster hall, and admits nobody to participate in its proceedings save its own members--a chief justice, who, though of inferior position in point of precedence, may be considered as in some respects the successor of the chief justiciary, which office was now abolished--and three or four puisne judges, the number having varied at different times. the court of common pleas was now also organized like the king's bench, with a chief justice and three or four puisne judges. as this court had exclusive jurisdiction of civil suits, (except those relating to marriage, divorce, wills, tithes, and the distribution of the personal property of intestates, which had been usurped by the ecclesiastical courts,) _pleas of the crown_, that is, the criminal jurisprudence of the realm, (except prosecutions for heresy, of which the ecclesiastical courts claimed jurisdiction,) and also the hardly less important duty of superintending the other tribunals, even the common pleas itself, and keeping them within their due limits, was assigned to the king's bench. to a third court, that of exchequer, of which, besides a chief baron and three or four puisne barons, the treasurer and the chancellor of the exchequer originally formed a part, were assigned all cases touching the king's revenue, and especially the collection of debts due to him, in which light were regarded not only all fines, forfeitures, and feudal dues, but the imposts and aids occasionally granted by parliament. there was also a court of chivalry or "honor court," presided over by the constable and marshal, and having jurisdiction of all questions touching rank and precedency; and another, over which the steward of the household presided, to regulate the king's domestic servants; but these courts, which have long since vanished, could never be considered as having stood on a par with the three others, the judges of which esteemed themselves the grand depositaries of the knowledge of the common or unwritten law of england; that is, of such customs and forms as had obtained the force of law previous to the existence of the regular series of statutes beginning with magna charta. indeed, these judges of england, as they were called, were in the habit of meeting together in the exchequer chamber, for the purpose of hearing arguments on law points of importance or difficulty, adjourned thither for their consideration, and which they decided by a majority of their whole number present, thus presenting down to the recent abolition, or rather modification, of the court of exchequer chamber, a shadow, as it were, of the ancient aula regis. already, previous to this fracture of the aula regis into the various courts above named, the legal profession, so far as practice in the lay courts was concerned, had begun to separate itself from the clerical; and places for the education and residence of a class of laymen who began to devote themselves to the study of the common law were established in the vicinity of westminster hall. of these, lincoln's inn, founded at the commencement of the reign of edward ii., (about a. d. ,) under the patronage of william earl of lincoln, who gave up his own hostel or town residence for that purpose, was the earliest, and has always remained the principal. on this model were established before long the inner and middle temple, (so called because a residence of the knights templars, forfeited by the dissolution of that order, had been devoted to this purpose,) gray's inn, serjeant's inn, and the inns of chancery. such was the origin of the profession of law as it still exists in england and america; of that body of lawyers whence all our judges are taken, arrogating to itself, after the example of the churchmen, of which it originally consisted, a certain mystical enlightenment and superiority, scouting the idea that the laity, as the lawyers too affect to distinguish all persons not of their cloth,--in plain english, _the people_,--should presume to express or to entertain any independent opinion upon matters of law, or that any body not a professional lawyer can possibly be qualified for the comprehension, and much less for the administration, of justice. in the anglo-saxon courts the parties had appeared personally, and pleadings had been oral. the anglo-norman practice gave rise to appearance by attorney in all civil cases, and to that system of special written pleadings, prepared by counsel learned in the law, of which the operation was to give the victory to ingenuity and learning rather than to right, and which, after undergoing many modifications, has at length been abolished in many of our anglo-american states, as an impediment to justice and an intolerable nuisance. even in conservative england itself, though the system of special pleadings, greatly modified by modern changes, still exists, the recent return, by the examination of the parties, to the old popular system of oral pleading has been attended by the happiest results. the preparation of these written pleadings, by which we are here to understand not arguments, but allegations of facts relied upon by the respective parties, was engrossed by the serjeants at law, whose distinguishing badge was a coif or velvet cap--wigs being a comparatively modern invention. to obtain admittance into this order, by which the entire practice of the court of common pleas was engrossed, (that is, originally, the entire practice in civil suits,) and from which the judges were exclusively selected, sixteen years' study was required. the degree of barrister, or, as it was called, of apprentice, might be obtained by seven years' study; and it was to these two classes of serjeants and apprentices that the practice in the courts of westminster hall was originally confined.[ ] but subsequently there sprang up a third inferior and still more numerous class, called attorneys, a sort of middle-men between the client and his counsel, not permitted to speak in court, for which purpose they must retain a serjeant or barrister, but upon whom was shifted off all the drudgery and responsibility of preparing the case, in which, however, no step of consequence could be taken without the advice of counsel learned in the law, _i. e._, a serjeant or barrister.[ ] as the law and its practice thus became more and more a mystery, only to be learned by frequenting the courts of westminster hall, and by the study of the obscure and ill-prepared reports of their proceedings, which began now to be compiled by official reporters, and published under the name of year books, the old local anglo-saxon courts fell still more into contempt. already in the reign of henry iii. the freeholders had been released from their obligation of attendance upon them, and another blow was given to these ancient tribunals when, in the reign of edward ii., the appointment of sheriffs, hitherto chosen by the freeholders, was assumed by the crown; and still another when, in the following reign, the election of conservators of the peace was also taken from the people and assumed by the king. to the magistrates thus appointed by the king the new name of justices of the peace was soon afterwards given, and the criminal jurisdiction conferred upon them, whether acting singly as examining and committing magistrates, or met together at the courts of quarter sessions, gradually superseded the small remains of criminal authority hitherto left to the old popular tribunals. two circumstances, however, combined to transfuse a certain portion of the spirit of these old tribunals into the newly established courts, thus standing in the way of the entire monopoly of the administration of justice at which the lawyers aimed, and securing to the body of the people a certain participation in the most important function of the government, to wit, the administration of justice; which participation, derived from the old anglo-saxon customs, and transmitted to our times, constitutes to-day the main pillar of both british and american liberty. contemporaneously with the new organization above described of the courts of common law, the british parliament had taken upon itself that organization which it still retains--an upper house, (house of lords,) composed of great nobles and bishops,[ ] successor of the anglo-saxon wittenagemote and of the anglo-norman great council, and a lower house, (house of commons,) in which met together the elected representatives of the smaller landed proprietors, holding by knight's service immediately of the crown, (knights of the shire,) together with the newly-admitted representatives of the cities and chief towns, (burgesses.) the parliament thus constituted claimed and exercised, probably as successor of the wittenagemote, appellate jurisdiction from the decisions of all the courts of law. in the time of edward iii. it was even a common practice for the judges, when any question of difficulty arose in their several courts, to take the advice of parliament on it before giving judgment. thus in a case mentioned in the year book, ed. iii., thorpe, chief justice of the king's bench, went with another judge to the house of lords, to inquire the meaning and effect of a law they had just passed for amending the system of pleadings;[ ] and many other instances occur of the same sort. this appellate power vesting in parliament from the decisions of all the courts was the first of the circumstances above alluded to as serving to prevent the monopoly of the administration of justice by the lawyers. but this check with the process of time has almost entirely disappeared. in england this appellate power in parliament has long since fallen into the hands exclusively of the house of lords, who themselves in giving judgment are ordinarily only the mouthpiece of the judges called in to give their advice. in what are now the united states of america the same appellate jurisdiction was originally exercised by the colonial assemblies. with us, however, it has entirely vanished under the influence of the idea of a total separation of the legislative, executive, and judicial functions. the other, and by far the most important check upon the monopoly of the lawyers, was the introduction and gradual perfecting of the trial by jury, by which the more ancient methods--the compurgation and ordeal of the anglo-saxons, and the trial by battle, the favorite method of the anglo-normans--were entirely superseded. the history of the trial by jury is exceedingly obscure. the petit jury may, however, be traced back to the old anglo-saxon method of trial by compurgation, the jury in its origin being only a body of witnesses drawn from the vicinage, who founded their verdict not upon the evidence of witnesses given before them, but upon their own personal knowledge of the matters in dispute.[ ] the grand jury seems to have originated in the old anglo-saxon custom imbodied in one of the laws of ethelred, by which was imposed upon the twelve senior thanes of every hundred the duty of discovering and presenting the perpetrators of all crimes within their district--a custom revived by the constitution of clarendon, enacted a. d. , by which twelve lawful men of the neighborhood were to be sworn by the sheriff, on the requisition of the bishop, to investigate all cases of suspected criminality as to which no individual dared to make an accusation. at first this accusing jury seems also to have served the purpose of a jury of trial. in what way the grand jury came to be separated from the petit jury, and how the former came to be increased to a number not exceeding twenty-three, of whom at least twelve must concur in order to find an indictment, is a point which still remains for the investigation of legal antiquaries.[ ] the trial by jury, though of the progress of its development little is known, appears to have taken on substantially its existing form, both in civil and criminal cases, nearly contemporaneously with the new organization of the english courts, with the rise of the legal profession as distinct from that of the clergy, and with the commencement of the series of english statutes and law reports--all of which, as well as the existing constitution of the british house of commons, may be considered as dating from the accession of edward i., a. d. , or somewhat less than six hundred years ago. in certain cases of great importance this trial took place and still takes place in bank, as it is called; that is, in westminster hall, before all the judges of the court in which the suit is pending;[ ] but in general, the trial is had in the county in which (if a criminal case) the offence had been committed, or (if a civil case) in which the venue is laid, before certain commissioners sent into the counties for that purpose, and who, under the new system, were the successors of the justices in eyre, or itinerant justices, who had formed a part of the ancient aula regis. originally, separate commissions appear to have issued for criminal and civil cases--for the former a commission of oyer and terminer, (to hear and determine,) and of general jail delivery; and for the latter a commission of assize, so called from the name of a peculiar kind of jury trial introduced as a substitute for trial by battle, in real actions, that is, pleas relating to land, villainage, and advowsons. in the times in which land, villains, and the right of presentation to parishes, constituted the chief wealth, these real actions constituted also the chief business of the common pleas, which then had exclusive jurisdiction of civil controversies; but to this commission of assize was annexed another, called a commission of _nisi prius_, authorizing the commissioners to try all questions of fact arising in any of the courts of westminster. this latter commission was so called because the writ issued to the sheriff of the county in which the cause of action was alleged to have originated, to summon a jury to try the case, directed such jury to be summoned to appear at westminster on a day named, unless before (in latin, _nisi prius_) that day commissioners should come into the county to try the case there. hence the term _nisi prius_ employed by lawyers to designate a trial by jury before one or more judges, commissioned to hold such trials within certain circuits, but whose directions to the jury, and other points of law decided by them in the course of the trial, are liable afterwards to be reviewed by the whole bench. ultimately these commissions for both criminal and civil trials were given to the same persons, who also received a commission of the peace; and the whole territory of england being divided into six circuits, two of the judges, to whom other assessors were added, held assizes twice a year in each county,[ ] for the trial of issues found in westminster hall--a system closely imitated in all our american states. but the distribution of authority above described as having been originally made to the different courts of westminster hall, into which the aula regis was divided, did not long remain undisturbed. courts have at all times, and every where, exhibited a great disposition to extend their jurisdiction, of which we have already had an example in the authority over marriages, wills, and the personal property of intestates, assumed by the english ecclesiastical courts; and considering the double jurisdiction under which we citizens of the united states live,--that of the federal and that of the state courts,--and the disposition so strongly and perseveringly exhibited by the federal courts to enhance their authority, while the state courts continue to grow weaker and tamer, this is, to us, a subject of no little interest. besides the general love of extending their jurisdiction characteristic of all courts, and indeed only one of the manifestations of the universal passion for power, the english courts of king's bench and exchequer had a special motive for seeking to encroach on the exclusive civil jurisdiction of the common pleas. the salaries of the judges were very small--originally only sixty marks, equal to £ sterling, or about $ a year; nor was their amount materially increased down to quite recent times; but to this small salary were added fees paid by the parties to the cases tried before them; and the judges of the two other courts were very anxious to share with their brethren of the common pleas a part of the rich harvest which their monopoly of civil cases enabled them to reap from that source. not only did the court of king's bench start the idea that all suits in which damages were claimed for injuries to person or property, attended by violence or fraud, came properly within its jurisdiction as "savoring of criminality;" it found another reason for extending its jurisdiction, by suggesting that when a person was in the custody of its officers, he could not, with a due regard to "legal comity," be sued on any personal claim in any other court, since that might result in his being taken out of the hands of their officer who already had him in custody, and was entitled to keep him. if any body had any claim against such a person, (such was the position plausibly set up,) it ought to be tried before the court in whose custody he already was. having thus prepared the way, the court of king's bench did not stop here; but by a fiction, introduced into the process with which the suit was commenced, that the defendant was already in the custody of their marshal for a fictitious trespass which he was not allowed to deny, jurisdiction was gradually assumed in all private suits except real actions. the court of exchequer in like manner claimed exclusive jurisdiction of suits for debt brought by the king's debtors, since by neglecting to pay them they might be prevented from paying their debts to the king; and under the pretence, which nobody was allowed to dispute, that all plaintiffs were the king's debtors, that court, too, gave an extent to their jurisdiction similar to that of the king's bench. the exclusive jurisdiction of real actions, which alone remained to the common pleas, by the disappearance of villainage and the great increase of personal property, every day declined in importance; but even this was at last taken from the common pleas by the invention of chief justice rolle, during the time of the commonwealth, of the action of ejectment, which proceeds from beginning to end upon assumptions entirely fictitious, but which by its greater convenience entirely superseded real actions in england and in most of the anglo-american states. but while these three common law courts were thus exercising their ingenuity to intrench upon each other's jurisdiction, their pertinacious adherence to powers and technicalities, and their unwillingness, except in matters where the alleged prerogative of the crown was concerned, to do any thing not sanctioned by precedent, led them to refuse justice or relief to private suitors in many crying cases. such cases still continued to be brought by petition before the king, and by him were referred to his chancellor, who in the earlier times was commonly his confessor, and who since the abolition of the office of chief justiciary had become the first official of the realm. undertaking in these cases to prevent a failure of justice by rising above the narrow technicalities of the common law, and guided by the general principles of equity and good conscience, the chancellor gradually assumed a most important jurisdiction, which in civil matters ultimately raised his court to a rank and importance above that of all the others. with the advance indeed of wealth and civilization, appeals to chancery became more and more frequent; and if the common law courts had not altered their policy, and adopted upon many points equitable ideas, it seems probable that so far as civil suits were concerned, those courts would long since have been superseded altogether.[ ] what indeed of and the practice in the equity court entirely into the hands of lawyers bred in westminster hall, by whom equity itself was made subservient to precedent, and the whole procedure involved in forms and technicalities even more dilatory and expensive than those of the common law courts. the same disinclination on the part of these common law courts to go beyond the strict limit of technical routine, led, with the progress of commerce and navigation, to the erection, in the time of edward iii., of the admiralty court, mainly for the trial of injuries and offences committed on the high seas, of which, on technical grounds, the courts of common law declined to take jurisdiction. after the foundation of english colonies,[ ] branches of this court, to which also was given an exchequer jurisdiction, were established in the colonies, and on that model have been formed our federal district courts. while the common law courts, through their preference of technicalities to justice, thus enabled the chancellors to assume a civil jurisdiction by which they themselves were completely overshadowed, driving the parliament also to the necessity of creating, for both civil and criminal matters, a new court of admiralty,[ ] they gave at the same time the support of their acquiescence and silence to other innovations, prompted not by public convenience, but by the very spirit of tyranny. in every reign, at least from the time of henry vi. down to that of charles i., torture to extort confessions from those charged with state crimes was practised under warrants from the privy council. in the year , by the advice of lord bacon, then attorney general, the lustre of whose philosophical reputation is so sadly dimmed by the infamy of his professional career, torture of the most ruthless character was employed upon the person of peacham, a clergyman between sixty and seventy years of age, to extort confessions which might be used against him in a trial for treason, as to his intentions in composing a manuscript sermon not preached nor shown to any body, but found on searching his study, some passages of which were regarded as treasonable, because they encouraged resistance to illegal taxes. thirteen years afterwards, when it was proposed to torture fenton, the assassin of villiers, duke of buckingham, to extort from him a confession of his accomplices, the prisoner suggested that if tortured he might perhaps accuse archbishop laud himself. upon this, some question arose as to the legality of torture; and the judges being called upon for their advice, thus at length driven to speak, delivered a unanimous opinion that the prisoner ought not to be tortured, because no such punishment was known or allowed by the english law; which english law, it now appeared, had for two hundred years been systematically disregarded under the eye and by the advice of judges and sworn lawyers, members of the privy council, and without any protest or interference on the part of the courts! another instance of similar acquiescence occurred in regard to the court of chivalry, which in the reign of charles i. undertook to assume jurisdiction in the case of words spoken. thus a citizen was ruinously fined by that court because, in an altercation with an insolent waterman, who wished to impose upon him, he deridingly called the swan on his badge a "goose." the case was brought within the jurisdiction of the court, by showing that the waterman was an earl's servant, and that the swan was the earl's crest, the heavy fine being grounded on the alleged "dishonoring" by the citizen of this nobleman's crest. a tailor, who had often very submissively asked payment of his bill from a customer of "gentle blood" whose pedigree was duly registered at the herald's college, on a threat of personal violence for his importunity, was provoked into saying that "he was as good a man as his debtor." for this offence, which was alleged to be a levelling attack upon the aristocracy, he was summoned before the earl marshal's court, and mercifully dismissed with a reprimand--_on releasing the debt_! no aid could be obtained from the common law courts against this scandalous usurpation, by which, without any trial by jury, enormous damages were given.[ ] legal "comity" perhaps prevented any interference. presently, however, the long parliament met, and a single resolution of that body stopped forever this usurpation. but while a scrupulous adherence to technicalities and to legal etiquette prevented the common law courts, on the one hand, from doing justice in private cases, and on the other from guarding the subject against official injuries and usurpations, they showed themselves, as the following biographies will prove, the ready and willing tools on all occasions of every executive usurpation. if the people of great britain and america are not at this moment slaves, most certainly, as the following biographies will prove, it is not courts nor lawyers that they have to thank for it. how essential to liberty is the popular element in the administration of criminal law--how absolutely necessary is the restraint of a jury in criminal cases--was most abundantly proved by the proceedings of the english courts of star chamber and high commission. the court of star chamber, though of very ancient origin, derived its chief importance from statutes of henry vii. and henry viii., by which it was invested with a discretionary authority to fine and imprison in all cases not provided for by existing laws, being thus erected, according to the boasts of coke and bacon, into a "court of criminal equity." the court of high commission, whose jurisdiction was mainly limited to clergymen, was created by a statute of elizabeth as the depository of the ecclesiastical authority as head of the church assumed after the reformation by the english sovereigns. both these courts consisted of high officers of the crown, including judges and crown lawyers; and though not authorized to touch life or member, they became such instruments of tyranny as to make their abolition one of the first things done after the meeting of the long parliament. the only american parallel to these courts is to be found in the authority conferred by the fugitive act of , upon certain commissioners of the circuit court of the united states, to seize and deliver over to slavery peaceable residents in their respective states, without a jury, and without appeal. history is philosophy teaching by example. from what judges have attempted and have done in times past, and in england, we may draw some pretty shrewd conclusions as to what, if unchecked, they may attempt, and may do, in times present, and in america. nor let any man say that the following pages present a collection of judicial portraits distorted and caricatured to serve an occasion. they have been borrowed, word for word, from the _lives_ of the chief justices and of the chancellors of england, by lord campbell, himself a lawyer and a judge, and though a liberal-minded and free-spoken man, by no means without quite a sufficient share of the _esprit du corps_ of the profession. derived from such a source, not only may the facts stated in the following biographies be relied upon, but the expressions of opinion upon points of law are entitled to all the weight of high professional authority. nor let it be said that these biographies relate to ancient times, and can have no parallelism, or but little, to the present state of affairs among us here in america. the times which they include are the times of the struggle in great britain between the ideas of free government and attempts at the establishment of despotism; and that struggle is precisely the one now going on among us here in america, with this sole difference, that over the water, among our british forefathers, it was the despotism of a monarch that was sought to be established; here in america, the despotism of some two hundred thousand petty tyrants, more or less, in the shape of so many slaveholders, who, not content with lording it over their several plantations, are now attempting, by combination among themselves, and by the aid of a body of northern tools and mercenaries, such as despots always find, to lord it over the union, and to establish the policy of slaveholding as that of the nation. in great britain, the struggle between despotism and free institutions closed with the revolution of , with which these biographies terminate. since that time the politics of that country have consisted of hardly more than of jostlings between the ins and the outs, with no very material variance between them in their social ideas. among us the great struggle between slaveholding despotism and republican equality has but lately come to a head, and yet remains undetermined. it exhibits, especially in the conduct of the courts and the lawyers, many parallels to the similar struggle formerly carried on in great britain. that struggle terminated at last with the deposition and banishment of the stuart family, and the reëstablishment in full vigor of the ancient liberties of england, as embodied in the bill of rights. and so may ours terminate, in the reduction of those who, not content with being brethren seek to be masters, to the republican level of equal and common citizenship, and in the reëstablishment of emancipation, freedom, and the rights of man proclaimed in our declaration of independence, as the national and eternal policy of these united states! atrocious judges. chapter i. roger le brabacon. roger le brabacon,[ ] from the part he took in settling the disputed claim to the crown of scotland, is an historical character. his ancestor, celebrated as "the great warrior," had accompanied the conqueror in the invasion of england, and was chief of one of those bands of mercenary soldiers then well known in europe under the names (for what reason historians are not agreed) of routiers, cottereaux, or _brabançons_.[ ] being rewarded with large possessions in the counties of surrey and leicester, he founded a family which flourished several centuries in england, and is now represented in the male line by an irish peer, the tenth earl of meath. the subject of the present sketch, fifth in descent from "the great warrior," changed the military ardor of his race for a desire to gain distinction as a lawyer. he was regularly trained in all the learning of "essions" and "assizes," and he had extensive practice as an advocate under lord chief justice de hengham. on the sweeping removal of almost all of the judges in the year ,[ ] he was knighted, and appointed a puisne justice of the king's bench, with a salary--which one would have thought must have been a very small addition to the profits of his hereditary estates of _l._ _s._ _d._ a year. he proved a most admirable judge;[ ] and, in addition to his professional knowledge, being well versed in historical lore, he was frequently referred to by the government when negotiations were going on with foreign states. edward i., arbitrator by mutual consent between the aspirants to the crown of scotland, resolved to set up a claim for himself as liege lord of that kingdom, and brabacon was employed, by searching ancient records, to find out any plausible grounds on which the claim could be supported. he accordingly travelled diligently both through the saxon and norman period, and--by making the most of military advantages obtained by kings of england over kings of scotland, by misrepresenting the nature of homage which the latter had paid to the former for possessions held by them in england, and by blazoning the acknowledgment of feudal subjection extorted by henry ii. from william the lion when that prince was in captivity, without mentioning the express renunciation of it by richard i.--he made out a case which gave high delight to the english court. edward immediately summoned a parliament to meet at norham, on the south bank of the tweed, marched thither at the head of a considerable military force, and carried mr. justice brabacon along with him as the exponent and defender of his new _suzeraineté_. it is a little curious that one of these competitors for the scottish throne had lately been an english judge, and a competitor for the very place to which brabacon, for his services on this occasion, was presently promoted. from the time of william the conqueror and malcolm canmore, until the desolating wars occasioned by the dispute respecting the right of succession to the scottish crown, england and scotland were almost perpetually at peace; and there was a most familiar and friendly intercourse between the two kingdoms, insomuch that nobles often held possession in both, and not unfrequently passed from the service of the one government into that of the other. the norman knights, having conquered england by the sword, in the course of a few generations got possession of a great part of scotland by marriage. they were far more refined and accomplished than the caledonian thanes; and, flocking to the court of the scottish kings, where they made themselves agreeable by their skill in the tournament, and in singing romances, they softened the hearts and won the hands of all the heiresses. hence the scottish nobility are almost all of norman extraction; and most of the great families in that kingdom are to be traced to the union of a celtic heiress with a norman knight. robert de brus, or bruis, (in modern times spelt _bruce_,) was one of the companions of the conqueror; and having particularly distinguished himself in the battle of hastings, his prowess was rewarded with no fewer than ninety-four lordships, of which skelton, in yorkshire, was the principal. robert, the son of the first robert de brus, married early, and had a son, adam, who continued the line of de brus of skelton. but becoming a widower while still a young man, to assuage his grief, he paid a visit to alexander i., then king of scots, who was keeping his court at stirling. there the beautiful heiress of the immense lordship of annandale, one of the most considerable fiefs held of the crown, fell in love with him; and in due time he led her to the altar. a scottish branch of the family of de brus was thus founded under the designation of lords of annandale. the fourth in succession was "robert the noble," and he raised the family to much greater consequence by a royal alliance, for he married isabel, the second daughter of prince david, earl of huntingdon, grandson of david i., sometimes called st. david. robert, son of "robert the noble" and the scottish princess, was born at the castle of lochmaben, about the year . the skelton branch of the family still flourished, although it became extinct in the next generation. at this time a close intercourse was kept up between "robert the noble" and his yorkshire cousins; and he sent his heir to be educated in the south under their auspices. it is supposed that the youth studied at oxford; but this does not rest on any certain authority. in , his father died, and he succeeded to the lordship of annandale. one would have expected that he would now have settled on his feudal principality, exercising the rights of _furca et fossa_, or "pit and gallows," which he possessed without any limit over his vassals; but by his english education he had become quite an englishman, and, paying only very rare visits to annandale, he sought preferment at the court of henry iii. what surprises us still more is, that he took to the gown, not the sword; and instead of being a great warrior, like his forefathers and his descendants, his ambition seems to have been to acquire the reputation of a great lawyer. there can be little doubt that he practised as an advocate in westminster hall from till . in the latter year we certainly know that he took his seat on the bench as a puisne judge, or justiciar; and, from thence till , extant records prove that payments were made for assizes to be taken before him--that he acted with other justiciars in the levying of fines--and that he went circuits as senior judge of assize. in the th year of henry iii. he had a grant of _l._ a year salary, which one would have supposed could not have been a great object to the lord of annandale. in the barons' wars, he was always true to the king; and although he had no taste for the military art, he accompanied his royal master into the field, and was taken prisoner with him at the battle of lewes. the royal authority being reëstablished by the victory at evesham, he resumed his functions as a puisne judge; and for two years more there are entries proving that he continued to act in that capacity. at last, on the th of march, , henry iii., he was appointed "capitalis justiciarius ad placita coram rege tenenda," (chief justiciary for holding pleas before the king); but unless his fees or presents were very high, he must have found the reward of his labors in his judicial dignity, for his salary was very small. hugh bigod and hugh le despencer had received marks a year, "ad se sustentandum in officio capitalis justitiarii angliæ," (for sustaining themselves in the office of chief justice of england,) but chief justice de brus was reduced to marks a year; that is, _l._ _s._ _d._ yet such delight did he take in playing the judge, that he quietly submitted both to loss of power and loss of profit. he remained chief justice till the conclusion of this reign, a period of four years and a half, during which he alternately went circuits and presided in westminster hall. none of his decisions have come down to us, and we are very imperfectly informed respecting the nature of the cases which came before him. the boundaries of jurisdiction between the parliament, the aula regis, and the rising tribunal afterwards called the court of king's bench, seem to have been then very much undefined. on the demise of the crown, robert de brus was desirous of being reappointed. he was so much mortified by being passed over, that he resolved to renounce england forever; and he would not even wait to pay his duty to edward i., now returning from the holy wars. the ex-chief justice posted off for his native country, and established himself in his castle of lochmaben, where he amused himself by sitting in person in his court baron, and where all that he laid down was, no doubt, heard with reverence, however lightly his law might have been dealt with in westminster hall. occasionally he paid visits to the court of his kinsman, alexander iii., but he does not appear to have taken any part in scottish politics till the untimely death of that monarch, which, from a state of peace and prosperity, plunged the country into confusion and misery. there was now only the life of an infant female, residing in a distant land, between him and his plausible claim to the scottish crown. he was nominated one of the negotiators for settling the marriage between her and the son of edward i., which, if it had taken place, would have entirely changed the history of the island of great britain. from his intimate knowledge both of scotland and england, it is probable that the "articles" were chiefly of his framing, and it must be allowed that they are just and equitable. for his own interest, as well as for the independence of his native country, he took care to stipulate that, "failing margaret and her issue, the kingdom of scotland should return to the nearest heirs, to whom of right it ought to return, wholly, freely, absolutely, and without any subjection." the maid of norway having died on her voyage home, the ex-chief justice immediately appeared at perth with a formidable retinue, and was in hopes of being immediately crowned king at scone;--and he had nearly accomplished his object, for john baliol, his most formidable competitor in point of right, always feeble and remiss in action, was absent in england. but, from the vain wish to prevent future disputes by a solemn decision of the controversy after all parties should have been heard, the scotch nobility in an evil hour agreed to refer it, according to the fashion of the age, to the arbitration of a neighboring sovereign, and fixed upon edward i. of england, their wily neighbor. the scottish nobles being induced to cross the river tweed, and to assemble in the presence of edward, under pretence that he was to act only as arbitrator, sir roger de brabacon by his order addressed them in french, (the language then spoken by the upper classes both in scotland and england,) disclosing the alarming pretensions about to be set up. a public notary and witnesses were in attendance, and in their presence the assumed vassals were formally called upon to do homage to edward as their _suzerain_, of which a record was to be made for a lasting memorial. the scots saw too late the imprudence of which they had been guilty in choosing such a crafty and powerful arbitrator. for the present they refused the required recognition, saying that "they must have time for deliberation, and to consult the absent members of their different orders." brabacon, after advising with the king, consented that they should have time until the following day, and no longer. they insisted on further delay, and showed such a determined spirit of resistance, that their request was granted and the first day of june following was fixed for the ceremony of the recognition. brabacon allowed them to depart; and a copy of his paper, containing the proofs of the alleged _superiority_ and _direct dominion_ of the english kings over scotland, was put into their hands. he then returned to the south, where his presence was required to assist in the administration of justice, leaving the chancellor burnel to complete the transaction. although the body of the scottish nobles, as well as the body of the scottish people, would resolutely have withstood the demand, the competitors for the throne, in the hopes of gaining edward's favor, successively acknowledged him as their liege lord, and their example was followed by almost the whole of those who then constituted the scottish parliament.[ ] bruce afterwards pleaded his own cause with great dexterity, and many supposed that he would succeed. upon the doctrine of _representation_, which is familiar to us, baliol seems clearly to have the better claim, as he was descended from the eldest daughter of the earl of huntingdon: but bruce was one degree nearer the common stock; and this doctrine, which was not then firmly established, had never been applied to the descent of the crown. when edward i. determined in favor of baliol, influenced probably less by the arguments in his favor than by the consideration that from the weakness of his character he was likely to be a more submissive vassal, robert de brus complained bitterly that he was wronged, and resolutely refused to acknowledge the title of his rival. he retired in disgust to his castle of lochmaben, where he died in november, . while resident in england, he had married isabel, daughter of gilbert de clare, earl of gloucester, by whom he had several sons. robert, the son of robert the eldest, became robert i. of scotland, and one of the greatest of heroes. when judgment had been given in favor of baliol, brabacon was still employed to assist in the plan which had been formed to bring scotland into entire subjection. there being a meeting at newcastle of the nobles of the two nations, when the feudatory king did homage to his liege lord, complaint was made by roger bartholomew, a burgess of berwick, that certain english judges had been deputed to exercise jurisdiction on the north bank of the tweed. edward referred the matter to brabacon and other commissioners, commanding them to do justice according to the laws and customs of his kingdom. a petition was then presented to them on behalf of the king of scotland, setting forth edward's promise to observe the laws and customs of that kingdom, and that pleas of things done there should not be drawn to examination elsewhere. brabacon is reported thus to have answered:-- "this petition is unnecessary, and not to the purpose; for it is manifest, and ought to be admitted by all the prelates and barons, and commonalty of scotland, that the king, our master, has performed all his promises to them. as to the conduct of his judges, lately deputed by him as superior and direct lord of that kingdom, they only represent his person; he will take care that they do not transgress his authority, and on appeal to him he will see that right is done. if the king had made any temporary promises when the scottish throne was vacant, in derogation of his just _suzeraineté_, by such promises he would not have been restrained or bound."[ ] encouraged by this language, macduff, the earl of fife, entered an appeal in the english house of lords against the king of scotland; and, on the advice of brabacon and the other judges, it was resolved that the respondent must stand at the bar as a vassal, and that, for his contumacy, three of his principal castles should be seized into the king's hands. although historians who mention these events designate brabacon as "grand justiciary," it is quite certain that, as yet, he was merely a puisne judge; but there was a strong desire to _reward_ him for his services, and, at last, an opportune vacancy arising, he was created chief justice of the king's bench. of his performances in this capacity we know nothing, except by the general commendation of chroniclers; for the year books, giving a regular account of judicial decisions, do not begin till the following reign. on the accession of edward ii., brabacon was reappointed chief justice of the king's bench, and he continued very creditably to fill the office for eight years longer. he was fated to deplore the fruitless result of all his efforts to reduce scotland to the english yoke robert bruce being now the independent sovereign of that kingdom, after humbling the pride of english chivalry in the battle of bannockburn.[ ] at last, the infirmities of age unfitting brabacon for the discharge of judicial duties, he resigned his gown; but, to do him honor, he was sworn a member of the privy council, and he continued to be treated with the highest respect till his death, which happened about two years afterwards. chapter ii. robert tresilian. we next come to a chief justice who actually suffered the last penalty of the law--and deservedly--in the regular administration of retributive justice--sir robert tresilian--hanged at tyburn. i can find nothing respecting his origin or education, except a doubtful statement that he was of a cornish family, and that he was elected a fellow of exeter college, oxford, in . the earliest authentic notice of him is at the commencement of the reign of richard ii., when he was made a serjeant at law, and appointed a puisne judge of the court of king's bench. the probability is, that he had raised himself from obscurity by a mixture of good and evil arts. he showed learning and diligence in the discharge of his judicial duties; but, instead of confining himself to them, he mixed deeply in politics, and showed a determination, by intrigue, to reach power and distinction. he devoted himself to de vere, the favorite of the young king, who, to the great annoyance of the princes of the blood, and the body of the nobility, was created duke of ireland, was vested for life with the sovereignty of that island, and had the distribution of all patronage at home. by the influence of this minion, tresilian, soon after the melancholy end of sir john cavendish,[ ] was appointed chief justice of the king's bench; and he was sent into essex to try the rebels. the king accompanied him. it is said that, as they were journeying, "the essex men, in a body of about , addressed themselves barefoot to the king for mercy, and had it granted upon condition that they should deliver up to justice the chief instruments of stirring up the rebellion; which being accordingly done, they were immediately tried and hanged, ten or twelve on a beam, at chelmsford, because they were too many to be executed after the usual manner, which was by beheading." tresilian now gained the good graces of michael de la pole, the lord chancellor, and was one of the principal advisers of the measures of the government, being ever ready for any dirty work that might be assigned to him. in the year , it was hoped that he might have got rid, by an illegal sentence, of john of gaunt, who had become very obnoxious to the king's favorites. but the plot got wind, and the duke, flying to pontefract castle, fortified himself there till his retainers came to his rescue. in the following year, when there was a change of ministry, tresilian was in great danger of being included in the impeachment which proved the ruin of the chancellor; but he escaped by an intrigue with the victorious party, and he was suspected of having secretly suggested the commission signed by richard, and confirmed by parliament, under which the whole power of the state was transferred to a commission of fourteen barons. he remained very quiet for a twelvemonth, till he thought that he perceived the new ministers falling into unpopularity, and he then advised that a bold effort should be made to crush them. meeting with encouragement, he secretly left london, and, being joined by the duke of ireland, went to the king, who was at nottingham, in a progress through the midland counties. he then undertook, through the instrumentality of his brother judges, to break the commission, and to restore the king and the favorite to the authority of which it had deprived them. his plan was immediately adopted, and the judges, who had just returned from the summer assizes, were all summoned in the king's name to nottingham. on their arrival, they found not only a string of questions, but answers, prepared by tresilian. these he himself had signed, and he required them to sign. belknappe, the chief justice of the common pleas, and the others, demurred, seeing the peril to which they might be exposed; but, by promises and threats, they were induced to acquiesce. the following record was accordingly drawn up, that copies of it might be distributed all over england:-- "be it remembered, that on the th of aug., in the th year of the reign of k. rich. ii., at the castle of nottingham, before our said lord the king, rob. tresilian, chief justice of england, and robt. belknappe, chief justice of the common bench of our said lord the king, john holt, roger fulthorp, and wm. de burg, knights, justices, &c., and john de lokton, the king's serjeant-at-law, in the presence of the lords and other witnesses under-written, were personally required by said lord the king, on the faith and allegiance wherein to him the said king they are bound, to answer faithfully unto certain questions hereunder specified, and to them then and there truly recited, and upon the same to declare the law according to their discretion, viz.:-- " . it was demanded of them, 'whether that new statute, ordinance, and commission, made and published in the last parl. held at westm., be not derogatory to the loyalty and prerogative of our said lord the king?' to which they unanimously answered that the same are derogatory thereunto, especially because they were against his will. " . 'how those are to be punished who procured that statute and commission?'--_a._ that they were to be punished with death, except the king would pardon them. " . 'how those are to be punished who moved the king to consent to the making of the said statute?'--_a._ that they ought to lose their lives unless his maj. would pardon them. " . 'what punishment they deserved who compelled, straightened, or necessitated the king to consent to the making of the said statute and commission?'--_a._ that they ought to suffer as traitors. " . 'how those are to be punished who hindered the king from exercising those things which appertain to his royalty and prerogative?'--_a._ that they are to be punished as traitors. " . 'whether after in parl. assembled, the affairs of the kingdom, and the cause of calling that parl. are by the king's command declared, and certain articles limited by the king upon which the lords and commons in that parl. ought to proceed; if yet the said lords and commons will proceed altogether upon other articles and affairs, and not at all upon those limited and proposed to them by the king, until the king shall have first answered them upon the articles and matters so by them started and expressed, although the king's command be to the contrary; whether in such case the king ought not to have the governance of the parl. and effectually overrule them, so as that they ought to proceed first on the matters proposed by the king: or whether, on the contrary, the lords and commons ought first to have the king's answer upon their proposals before they proceeded further?'--_a._ that the king in that behalf has the governance, and may appoint what shall be first handled, and so gradually what next in all matters to be treated of in parl., even to the end of the parl.; and if any act contrary to the king's pleasure made known therein, they are to be punished as traitors. " . 'whether the king, whenever he pleases, can dissolve the parl., and command the lords and commons to depart from thence, or not?'--_a._ that he can; and if any one shall then proceed in parl. against the king's will, he is to be punished as a traitor. " . 'since the king can, whenever he pleases, remove any of his judges and officers, and justify or punish them for their offences; whether the lords and commons can, without the will of the king, impeach in parl. any of the said judges or officers for any of their offences?'--_a._ that they cannot; and if any one should do so he is to be punished as a traitor.[ ] " . 'how he is to be punished who moved in parl. that the statute should be sent for whereby edw. ii. (the king's great grandfather) was proceeded against and deposed in parl.; by means of sending for and imposing which statute, the said late statute, ordinance, and commission, were devised and brought forth in parl.?'--_a._ that as well he that so moved, as he who by pretence of that motion carried the said statute to the parl., are traitors and criminals, to be punished with death. " . 'whether the judgment given in the last parl. held at westm. against mich. de la pole, earl of suffolk, was erroneous and revocable, or not?'--_a._ that if that judgment were now to be given, they would not give it; because it seems to them that the said judgment is revocable, as being erroneous in every part of it. "in testimony of all which, the judges and serjeants aforesaid, to these presents have put their seals in the presence of the rev. lords, alex. abp. of york, rob. abp. of dublin, john bp. of durham, tho. bp. of chichester, and john bp. of bangor, rob. duke of ireland, mich. earl of suffolk, john rypon, clerk, and john blake, esq.; given the place, day, month, and year aforesaid." tresilian exultingly thought that he had not only got rid of the obnoxious commission, but that he had annihilated the power of parliament by the destruction of parliamentary privilege, and by making the proceedings of the two houses entirely dependent on the caprice of the sovereign. he then attended richard to london, where the opinion of the judges against the legality of the commission was proclaimed to the citizens at the guildhall; and all who should act under it were declared traitors. a resolution was formed to arrest the most obnoxious of the opposite faction, and to send them to take their trials before the judges who had already committed themselves on the question of law; and, under the guidance of tresilian, a bill of indictment was actually prepared against them for a conspiracy to destroy the royal prerogative. thomas ush, the under sheriff, promised to pack a jury to convict them; sir nicholas brambre, who had been thrice lord mayor, undertook to secure the fidelity of the citizens; and all the city companies swore that they would live and die with the king, and fight against his enemies to their last breath. arundel, bishop of ely, was still chancellor; but tresilian considered that the great seal was now within his own grasp, and, after the recent examples of chief justices becoming chancellors, he anticipated no obstacle to his elevation. at such a slow pace did news travel in those days, that, on the night of the th of november, richard and his chief justice went to bed thinking that their enemies were annihilated, and next morning they were awoke by the intelligence that a large force, under the duke of gloucester and the earls of arundel and nottingham, was encamped at highgate. the confederate lords, hearing of the proceedings at nottingham, had immediately rushed to arms, and followed richard towards london, with an army of , men. the walls of london were sufficient to repel a sudden assault; and a royal proclamation forbade the sale of provisions to the rebels, in the hope that famine might disperse them. but, marching round by hackney, they approached aldgate, and they appeared so formidable, that a treaty was entered into, according to which they were to be supplied with all necessaries, on payment of a just price, and deputies from them were to have safe conduct through the city on their way to the king at westminster. richard himself agreed that on the following sunday he would receive the deputies, sitting on his throne in westminster hall. at the appointed hour he was ready to receive them, but they did not arrive, and he asked "how it fortuned that they kept not their promise." being answered, "because there is an ambush of a thousand armed men or more in a place called the mews, contrary to covenant; and therefore they neither come, nor hold you faithful to your word,"--he said, with an oath, that "he knew of no such thing," and he ordered the sheriffs of london to go thither and kill all they could lay hands on. the truth was, that sir nicholas brambre, in concert with tresilian, had planted an ambush near charing cross, to assassinate the lords as they passed; but, in obedience to the king's order, the men were sent back to the city of london. the lords at last reached westminster, with a gallant troop of gentlemen; and as soon as they had entered the great hall, and saw the king in his royal robes sitting on the throne, with the crown on his head and the sceptre in his hand, they made obeisance three times as they advanced, and when they reached the steps of the throne they knelt down before him with all seeming humility. he, feigning to be pleased to see them, rose and took each of them by the hand, and said "he would hear their plaint, as he was desirous to render justice to all his subjects." thereupon they said, "most dread sovereign, we appeal of high treason robert tresilian, that false justice; nicholas brambre, that disloyal knight; the archbishop of york; the duke of ireland; and the earl of suffolk;"--and, to prove their accusation to be true, they threw down their gauntlets, protesting by their oaths that they were ready to prosecute it to battle. "nay," said the king, "not so; but in the next parliament (which we do appoint beforehand to begin the morrow after the purification of our lady,) both they and you, appearing, shall receive according to law what law doth require, and right shall be done." it being apparent that the confederate lords had a complete ascendency, the accused parties fled. the duke of ireland and sir nicholas brambre made an ineffectual attempt to rally a military force; but chief justice tresilian disguised himself, and remained in concealment till he was discovered, after being attainted, in the manner to be hereafter described. the election for the new parliament ran strongly in favor of the confederate lords; and, on the day appointed for its meeting, an order was issued under their sanction for taking into custody all the judges who had signed the opinion at nottingham. they were all arrested while they were sitting on the bench, except chief justice tresilian; but he was nowhere to be found. when the members of both houses had assembled at westminster hall, and the king had taken his place on the throne, the five lords, who were called appellants, "entered in costly robes, leading one another hand in hand, an innumerable company following them, and, approaching the king, they all with submissive gestures reverenced him. then rising, they declared their appellation by the mouth of their speaker, who said, 'behold the duke of gloucester comes to purge himself of treasons which are laid to his charge by the conspirators.' to whom the lord chancellor, by the king's command, answered, 'my lord duke, the king conceiveth so honorably of you, that he cannot be induced to believe that you, who are of kindred to him, should attempt any treason against him.' the duke, with his four companions on their knees, humbly gave thanks to the king for his gracious opinion of their fidelity. and now, as a prelude to what was going to be acted, each of the prelates, lords and commons then assembled, had the following oath administered to them upon the rood or cross of canterbury, in full parliament: 'you shall swear that you will keep, and cause to be kept, the good peace, quiet, and tranquillity of the kingdom; and if any will do to the contrary thereof, you shall oppose and disturb him to the utmost of your power; and if any will do any thing against the bodies of the five lords, you shall stand with them to the end of this present parliament, and maintain and support them with all your power, to live and die with them against all men, no person or thing excepted, saving always your legiance to the king and the prerogatives of his crown, according to the laws and good customs of the realm.'" written articles to the number of thirty-nine were then exhibited by the appellants against the appellees. the other four are alleged to have committed the various acts of treason charged upon them "by the assent and counsel of robert tresilian, that false justice;" and in most of the articles he bears the brunt of the accusation. sir nicholas brambre alone was in custody; and the others not appearing when solemnly called, their default was recorded, and the lords took time to consider whether the impeachment was duly instituted, and whether the facts stated in the articles amounted to high treason. ten days thereafter, judgment was given "that the impeachment was duly instituted, and that the facts stated in several of the articles amounted to high treason." thereupon, the prelates having withdrawn, that they might not mix in an affair of blood, sentence was pronounced, "that sir robert tresilian, the duke of ireland, the archbishop of york, and earl of suffolk, should be drawn and hanged as traitors and enemies to the king and kingdom, and that their heirs should be disinherited forever, and that their lands and tenements, goods and chattels, should be forfeited to the king." tresilian might have avoided the execution of his sentence, had it not been for the strangest infatuation related of any human being possessing the use of reason. instead of flying to a distance, like the duke, the archbishop, and the earl, none of whom suffered, although his features were necessarily well known, he had come to the neighborhood of westminster hall on the first day of the session of parliament; and, even after his own attainder had been published, trusting to his disguise, his curiosity induced him to remain to watch the fate of his associate, sir nicholas brambre. this chivalrous citizen, who had been knighted for the bravery he had displayed in assisting sir william walwort to kill wat tyler and to put down the rebellion, having been apprehended and lodged in the tower of london, was now produced by the constable of the tower, to take his trial. he asked for further time to advise with his counsel, but was ordered forthwith to answer to every point in the articles of treason contained. thereupon he exclaimed, "whoever hath branded me with this ignominious mark, with him i am ready to fight in the lists to maintain my innocency whenever the king shall appoint!" "this," says a chronicler, "he spake with such a fury, that his eyes sparkled with rage, and he breathed as if an etna lay hid in his breast; choosing rather to die gloriously in the field, than disgracefully on a gibbet." the appellants said "they would readily accept of the combat," and flinging down their gages before the king, added, "we will prove these articles to be true to thy head, most damnable traitor!" but the lords resolved "that battle did not lie in this case; and that they would examine the articles with the proofs to support them, and consider what judgment to give, to the advantage and profit of the king and kingdom, and as they would answer before god." they adjourned for two days, and met again, when a number of london citizens appeared to give evidence against brambre. for the benefit of the reader, the chronicler i have before quoted shall continue the story:-- "before they could proceed with his trial, they were interrupted by unfortunate tresilian, who, being got upon the top of an apothecary's house adjoining to the palace, and descended into the gutter to look about him and observe who went into the palace, was discovered by certain of the peers, who presently sent some of the guard to apprehend him; who entering into the house where he was, and having spent long time in vain in looking for him, at length one of the guard stepped to the master of the house, and taking him by the shoulder, with his dagger drawn, said thus: 'show us where thou hast hid tresilian, or else resolve thy days as accomplished.' the master, trembling, and ready to yield up the ghost for fear, answered, 'yonder is the place where he lies;' and showed him a round table covered with branches of bays, under which tresilian lay close covered. when they had found him they drew him out by the heels, wondering to see him wear his hair and beard overgrown, with old clouted shoes and patched hose, more like a miserable poor beggar than a judge. when this came to the ears of the peers, the five appellants suddenly rose up, and, going to the gate of the hall, they met the guard leading tresilian, bound, crying, as they came, 'we have him, we have him.' tresilian, being come into the hall, was asked 'what he could say for himself why execution should not be done according to the judgment passed upon him for his treasons so often committed;' but he became as one struck dumb; he had nothing to say, and his heart was hardened to the very last, so that he would not confess himself guilty of any thing. whereupon he was without delay led to the tower, that he might suffer the sentence passed against him. his wife and his children did with many tears accompany him to the tower; but his wife was so overcome with grief, that she fell down in a swoon as if she had been dead. immediately tresilian is put upon an hurdle, and drawn through the streets of the city, with a wonderful concourse of people following him. at every furlong's end he was suffered to stop, that he might rest himself, and to see if he would confess or acknowledge any thing; but what he said to the friar, his confessor, is not known. when he came to the place of execution he would not climb the ladder, until such time as being soundly beaten with bats and staves he was forced to go up; and when he was up, he said, 'so long as i do wear any thing upon me, i shall not die;' wherefore the executioner stript him, and found certain images painted like to the signs of the heavens, and the head of a devil painted, and the names of many of the devils wrote in parchment; these being taken away he was hanged up naked, and after he had hanged some time, that the spectators should be sure he was dead, they cut his throat, and because the night approached they let him hang till the next morning, and then his wife, having obtained a licence of the king, took down his body, and carried it to the gray-friars, where it was buried." considering the violence of the times, tresilian's conviction and execution cannot be regarded as raising a strong presumption against him; but there seems little doubt that he flattered the vices of the unhappy richard; and historians agree that, in prosecuting his personal aggrandizement, he was utterly regardless of law and liberty. he died unpitied, and, notwithstanding the "historical doubts" by which we are beset, no one has yet appeared to vindicate his memory. chapter iii. thomas billing. the crown of england, transferred on the deposition of richard ii.[ ] in to the lancaster family in the person of henry iv., was worn successively by him and by his son and grandson, henry v. and henry vi. after the lapse, however, of sixty-two years, the imbecility of henry vi. enabled the legitimist or yorkist party to triumph by placing edward iv. on the throne. at this time sir john fortescue, an able man and distinguished by his treatise _de laudibus legion angliæ_, (praises of the laws of england,) was chief justice of the king's bench; but being an ardent lancastrian, and having written pamphlets to prove that richard ii. was rightly deposed, that henry iv. had been called to the throne by the estates of the kingdom and the almost unanimous voice of the people, and that now, in the third generation, the title of the house of lancaster could not be questioned, he was by no means the man to suit the new dynasty. he was removed to make way for sir john markham, who had been for nineteen years a puisne judge of the same court, and who, though he had not ventured to publish any thing on the subject, yet in private conversation and in "moots" at the temple, such as that in which the white and red roses were chosen as the emblems of the opposite opinions, did not hesitate to argue for indefeasible hereditary right, which no length of possession could supersede, and to contend that the true heir of the crown of england was richard, duke of york, descended from the second son of edward iii. his sentiments were well known to the yorkist leaders, and they availed themselves of the legal reasoning and the historical illustrations with which he furnished them; but he never sallied forth into the field, even when, after the death of richard, the gallant youth his eldest son displayed the high qualities which so wonderfully excited the energy of his partisans. however, when henry vi. was confined as a prisoner in the tower, and fortescue and all the lancastrian leaders had fled, markham was very naturally and laudably selected for the important office of chief justice of the king's bench. although he was such a strong legitimist, he was known not only to be an excellent lawyer, but a man of honorable and independent principles. the appointment, therefore, gave high satisfaction, and was considered a good omen of the new _régime_. he held the office above seven years, with unabated credit. not only was his hand free from bribes, but so was his mind from every improper bias. it was allowed that when sitting on the bench, no one could have discovered whether he was yorkist or lancastrian; the adherents of the reigning dynasty complaining (i dare say very unjustly) that, to obtain a character for impartiality, he showed a leaning on the lancastrian side.[ ] at last, though he cherished his notions of hereditary right with unabating constancy, he forfeited his office because he would not prostitute it to the purpose of the king and the ministers in wreaking their vengeance on the head of a political opponent. sir thomas cooke, who inclined to the lancastrians, though he had conducted himself with great caution, was accused of treason and committed to the tower. to try him a special commission was issued, over which lord chief justice markham presided, and the government was eager for a conviction. but all that could be proved against the prisoner was, that he entered into a treaty to lend, on good security, a sum of marks for the use of margaret, the queen of the dethroned henry vi. the security was not satisfactory, and the money was not advanced. the chief justice ruled that this did not amount to treason, but was at most misprision of treason. of this last offence the prisoner being found guilty, he was subjected to fine and imprisonment; but he saved his life and his lands. king edward iv. was in a fury, and swearing that markham, notwithstanding his high pretensions to loyalty, was himself little better than a traitor, ordered that he should never sit on the bench any more; and appointed in his place a successor, who, being a _puisne_, had wished to trip up the heels of his chief, and had circulated a statement, to reach the king's ear, that sir thomas cooke's offence was a clear, overt act of high treason. markham bore his fall with much dignity and propriety--in no respect changing his principles or favoring the movement which for a season restored henry vi. to the throne after he had been ten years a prisoner in the tower. upon the dismissal of sir john markham, edward iv., who no longer showed the generous spirit which had illustrated his signal bravery while he was fighting for the crown, and now abandoned himself by turns to voluptuousness and cruelty, tried to discover the fittest instrument that could be found for gratifying his resentments by a perversion of the forms of law, and with felicity fixed upon sir thomas billing, who, by all sorts of meannesses, frauds, and atrocities, aided by natural shrewdness, or rather low cunning, had contrived to raise himself from deep obscurity to a puisne judge of the king's bench; and in that situation had shown himself ready to obey every mandate, and to pander to every caprice of those who could give him still higher elevation. this is one of the earliest of the long list of politico-legal adventurers who have attained to eminence by a moderate share of learning and talent, and an utter want of principle and regard for consistency.[ ] his family and the place of his education are unknown. he was supposed to have been the clerk of an attorney; thus making himself well acquainted with the rules of practice and the less reputable parts of the law. however, he contrived (which must have been a difficult matter in those days, when almost all who were admitted at the inns of court were young men of good birth and breeding) to keep his terms and to be called to the bar. he had considerable business, although not of the most creditable description, and in due time he took the degree of the coif, that is, became a serjeant. his ambition grew with his success, and nothing would satisfy him but official preferment. now began the grand controversy respecting the succession to the crown; and the claim to it through the house of mortimer, which had long been a mere matter of speculation, was brought into formidable activity in the person of richard, duke of york. billing, thinking that a possession of above half a century must render the lancastrian cause triumphant, notwithstanding the imbecility of the reigning sovereign, was outrageously loyal. he derided all objections to a title which the nation had so often solemnly recognized; enlarging on the prudence of henry iv., the gallantry of henry v., and the piety of the holy henry vi., under whose mild sway the country now flourished, happily rid of all its continental dependencies. he even imitated the example of sir john fortescue, and published a treatise upon the subject, which he concluded with an exhortation "that all who dared, by act, writing, or speech, to call in question the power of parliament to accept the resignation of richard ii., or to depose him for the crimes he had committed, and to call to the throne the member of the royal family most worthy to fill it, according to the fashion of our saxon ancestors, should be proceeded against as traitors." this so pleased waynflete, the chancellor, and the other lancastrian leaders, that billing was thereupon made king's serjeant, and knighted. when the right to the crown was argued, like a peerage case, at the bar of the house of lords, billing appeared as counsel for henry vi., leading the attorney and solicitor general; but it was remarked that his fire had slackened much, and he was very complimentary to the duke of york, who, since the battle of northampton, had been virtually master of the kingdom. we know nothing more of the proceedings of this unprincipled adventurer until after the fall of duke richard, when the second battle of st. alban's had placed his eldest son on the throne. instantly sir thomas billing sent in his adhesion; and such zeal did he express in favor of the new dynasty that his patent of king's serjeant was renewed, and he became principal law adviser to edward iv. when parliament assembled, receiving a writ of summons to the house of lords, he assisted in framing the acts by which sir j. fortescue and the principal lancastrians, his patrons, were attainted, and the last three reigns were pronounced tyrannical usurpations. he likewise took an active part in the measures by which the persevering efforts of queen margaret to regain her ascendency were disconcerted, and henry vi. was lodged a close prisoner in the tower of london. sir john markham, the honorable and consistent yorkist, now at the head of the administration of the criminal law, was by no means so vigorous in convicting lancastrians, or persons suspected of lancastrianism, as edward and his military adherents wished; and when state prosecutions failed, there were strong murmurs against him. in these mr. serjeant billing joined, suggesting how much better it would be for the public tranquillity if the law were properly enforced. it would have appeared very ungracious, as well as arbitrary, to displace the chief justice, who had been such a friend to the house of york, and was so generally respected. that there might be one judge to be relied upon, who might be put into commissions of oyer and terminer, billing was made a puisne justice of the court of king's bench. he was not satisfied with this elevation, which little improved his position in the profession; but he hoped speedily to be on the woolsack, and he was resolved that mere scruples of conscience should not hold him back. being thus intrusted with the sword of justice, he soon fleshed it in the unfortunate walter walker, indicted before him on the statute edward iii., for compassing and imagining the death of the king. the prisoner kept an inn called the crown, in cheapside, in the city of london, and was obnoxious to the government because a club of young men met there who were suspected to be lancastrians, and to be plotting the restoration of the imprisoned king. but there was no witness to speak to any such treasonable consult; and the only evidence to support the charge was, that the prisoner had once, in a merry mood, said to his son, then a boy, "tom, if thou behavest thyself well, i will make thee heir to the crown." counsel were not allowed to plead in such cases then, or for more than three centuries after; but the poor publican himself urged that he never had formed any evil intention upon the king's life,--that he had ever peaceably submitted to the ruling powers,--and that though he could not deny the words imputed to him, they were only spoken to amuse his little boy, meaning that he should succeed him as master of the crown tavern, in cheapside, and, like him, employ himself in selling sack. mr. justice billing, however, ruled-- "that upon the just construction of the statute of treasons, which was only declaratory of the common law, there was no necessity, in supporting such a charge, to prove a design to take away the natural life of the king; that any thing showing a disposition to touch his royal state and dignity was sufficient; and that the words proved were inconsistent with that reverence for the hereditary descent of the crown which was due from every subject under the oath of allegiance; therefore, if the jury believed the witness, about which there could be no doubt, as the prisoner did not venture to deny the treasonable language which he had used, they were bound to find him guilty." a verdict of guilty was accordingly returned, and the poor publican was hanged, drawn, and quartered.[ ] mr. justice billing is said to have made the criminal law thus bend to the wishes of the king and the ministers in other cases, the particulars of which have not been transmitted to us; and he became a special favorite at court, all his former extravagances about cashiering kings and electing others in their stead being forgotten, in consideration of the zeal he displayed since his conversion to the doctrine of "divine right." therefore, when the chief justice had allowed sir thomas cooke to escape the penalties of treason, after his forfeitures had been looked to with eagerness on account of the great wealth he had accumulated, there was a general cry in the palace at westminster that he ought not to be permitted longer to mislead juries, and that mr. justice billing, of such approved loyalty and firmness, should be appointed to succeed him, rather than the attorney or solicitor general, who, getting on the bench, might, like him, follow popular courses. accordingly, a _supersedeas_ to sir john markham was made out immediately after the trial of _rex_ v. _cooke_, and the same day a writ passed the great seal, whereby "the king's trusty and well-beloved sir thomas billing, knight, was assigned as chief justice to hold pleas before the king himself." the very next term came on the trial of sir thomas burdett. this descendant of one of the companions of william the conqueror, and ancestor of the late sir francis burdett, lived at arrow, in warwickshire, where he had large possessions. he had been a yorkist, but somehow was out of favor at court; and the king, making a progress in those parts, had rather wantonly entered his park, and hunted and killed a white buck, of which he was peculiarly fond. when the fiery knight, who had been from home, heard of this affair, which he construed into a premeditated insult, he exclaimed, "i wish that the buck, horns and all, were in the belly of the man who advised the king to kill it;" or, as some reported, "were in the king's own belly." the opportunity was thought favorable for being revenged on an obnoxious person. accordingly he was arrested, brought to london, and tried at the king's bench bar on a charge of treason, for having compassed and imagined the death and destruction of "our lord the king." the prisoner proved, by most respectable witnesses, that the wish he had rashly expressed was applied only to the man who advised the king to kill the deer, and contended that words did not amount to treason, and that--although, on provocation, he had uttered an irreverent expression, which he deeply regretted--instead of having any design upon the king's life, he was ready to fight for his right to the crown, as he had done before; and that he would willingly die in his defence. "lord chief justice billing left it to the jury to consider what the words were; for if the prisoner had only expressed a wish that the buck and his horns were in the belly of the man who advised the king to kill the buck, it would not be a case of treason, and the jury would be bound to acquit; but the story as told by the witnesses for the crown was much more probable, for sovereigns were not usually advised on such affairs, and it had been shown that on this occasion the king had acted entirely of his own head, without any advisers, as the prisoner, when he uttered the treasonable words, must have well known: then, if the words really were as alleged by the witnesses for the crown, they clearly did show a treasonable purpose. words merely expressing an opinion, however erroneous the opinion, might not amount to treason; but when the words refer to a purpose, and incite to an act, they might come within the statute. here the king's death had certainly been in the contemplation of the prisoner; in wishing a violence to be done which must inevitably have caused his death, he imagined and compassed it. this was, in truth, advising, counselling, and commanding others to take away the sacred life of his majesty. if the wicked deed had been done, would not the prisoner, in case the object of his vengeance had been a subject, have been an accessory before the fact?[ ] but in treason accessories before the fact were principals, and the prisoner was not at liberty to plead that what he had planned had not been accomplished. therefore, if the jury believed that he had uttered the treasonable wish directed against his majesty's own sacred person, they were bound to convict him." the jury immediately returned a verdict of guilty; and the frightful sentence in high treason, being pronounced, was carried into execution with all its horrors. this barbarity made a deep impression on the public mind, and, to aggravate the misconduct of the judge, a rumor was propagated that the late virtuous chief justice had been displaced because he had refused to concur in it. lord chief justice billing, having justified his promotion by the renegade zeal he displayed for his new friends, and enmity to his old associates, was suddenly thrown into the greatest perplexity, and he must have regretted that he had ever left the lancastrians. one of the most extraordinary revolutions in history,--when a long continuance of public tranquillity was looked for,--without a battle, drove edward iv. into exile, and replaced henry vi. on the throne, after he had languished ten years as a captive in the tower of london. there is no authentic account of billing's deportment in this crisis, and we can only conjecture the cunning means he would resort to, and the pretences he would set up, to keep his place and to escape punishment. certain it is, that within a few days from the time when henry went in procession from his prison in the tower to his palace at westminster, with the crown on his head, while almost all other functionaries of the late government had fled, or were shut up in jail, a writ passed the great seal, bearing date the th year of his reign, by which he assigned "his trusty and well-beloved sir john billing, knight, as his chief justice to hold pleas in his court before him." there can be as little doubt that he was present at the parliament which was summoned immediately after in henry's name, when the crown was entailed on henry and his issue, edward was declared a usurper, his most active adherents were attainted, and all the statutes which had passed during his reign were repealed. it is not improbable that there had been a secret understanding between billing and the earl of warwick, (the king maker,) who himself so often changed sides, and who was now in possession of the whole authority of the government. while edward was a fugitive in foreign parts, the doctrine of divine right was, no doubt, at a discount in england, and billing may have again bolted his arguments about the power of the people to choose their rulers; although, according to the superstition of the age, he more probably countenanced the belief that henry was a saint, and that he was restored by the direct interposition of heaven. but one would think he must have been at his wits' end when, in the spring of the following year, edward iv. landed at ravenspurg, gained the battle of barnet, and, after the murder of henry vi. and the prince of wales, was again on the throne, without a rival. billing does seem to have found great difficulty in making his peace. though he was dismissed from his office, it was allowed to remain vacant about a twelvemonth, during which time he is supposed to have been in hiding. but he had vowed that, whatever changes might take place on the throne, he himself should die chief justice of the king's bench; and he contrived to be as good as his word. by his own representations, or the intercession of friends, or the hope of the good services he might yet render in getting rid of troublesome opponents, the king was induced to declare his belief that he who had sat on the trials of walker and burdet had unwillingly submitted to force during the late usurpation; and on the th of june, , a writ passed the great seal, by which his majesty assigned "his right trusty and well-beloved sir john billing, knight, as chief justice to hold pleas before his majesty himself." for nearly nine years after, he continued in the possession of his office, without being driven again to change his principles or his party. one good deed he did, which should be recorded of him--in advising edward iv. to grant a pardon to an old lancastrian, sir john fortescue. but for the purpose of reducing this illustrious judge to the reproach of inconsistency, which he knew made his own name a by-word, he imposed a condition that the author of _de laudibus_ should publish a new treatise, to refute that which he had before composed, proving the right of the house of lancaster to the throne; and forced him to present the petition in which he assures the king "that he hath so clearly disproved all the arguments that have been made against his right and title, that now there remaineth no color or matter of argument to the hurt or infamy of the same right or title by reason of any such writing, but the same right and title stand now the more clear and open by that any such writings have been made against them." there are many decisions of chief justice billing on dry points of law to be found in the year books, but there is only one other trial of historical importance mentioned in which he took any part; and it is much to be feared that on this occasion he inflamed, instead of soothing, the violent passions of his master, with whom he had become a special favorite. edward iv., after repeated quarrels and reconciliations with his brother, the duke of clarence, at last brought him to trial, at the bar of the house of lords, on a charge of high treason. the judges were summoned to attend, and lord chief justice billing was their mouthpiece. we have only a very defective account of this trial, and it would appear that nothing was proved against the first prince of the blood, except that he had complained of the unlawful conviction of burdet, who had been in his service; that he had accused the king of dealing in magic, and had cast some doubts on his legitimacy; that he had induced his servants to swear that they would be true to him, without any reservation of their allegiance to their sovereign; and that he had surreptitiously obtained and preserved an attested copy of an act of parliament, passed during the late usurpation, declaring him next heir to the crown after the male issue of henry vi. the duke of buckingham presided as high steward, and in that capacity ought to have laid down the law to the peers; but, to lessen his responsibility, he put the question to the judges, "whether the matters proved against the duke of clarence amounted, in point of law, to high treason." chief justice billing answered in the affirmative. therefore a unanimous verdict of guilty was given, and sentence of death was pronounced in the usual form. i dare say billing would not have hesitated in declaring his opinion that the beheading might be commuted to drowning in a butt of malmsey wine; but this story of clarence's exit, once so current, is now generally discredited, and the belief is, that he was privately executed in the tower, according to his sentence. lord chief justice billing enjoyed the felicitous fate accorded to very few persons of any distinction in those times--that he never was imprisoned, that he never was in exile, and that he died a natural death. in the spring of the year , he was struck with apoplexy, and he expired in a few days--fulfilling his vow--for he remained to the last chief justice of the king's bench, after a tenure of office for seventeen years, in the midst of civil wars and revolutions. he amassed immense wealth, but dying childless, it went to distant relations, for whom he could have felt no tenderness. notwithstanding his worldly prosperity, few would envy him. he might have been feared and flattered, but he could not have been beloved or respected, by his contemporaries; and his name, contrasted with those of fortescue and markham, was long used as an impersonation of the most hollow, deceitful, and selfish qualities which can disgrace mankind. chapter iv. john fitzjames. of obscure birth, and not brilliant talents, sir john fitzjames made his fortune by his great good humor, and by being at college with cardinal wolsey. it is said that fitzjames, who was a somersetshire man, kept up an intimacy with wolsey when the latter had become a village parson in that county; and that he was actually in the brawl at the fair when his reverence, having got drunk, was set in the stocks by sir amyas paulet. while wolsey tried his luck in the church, with little hope of promotion, fitzjames was keeping his terms in the inns of court; but he chiefly distinguished himself on gaudy days, by dancing before the judges, playing the part of "abbot of misrule," and swearing strange oaths--especially by _st. gillian_, his tutelary saint. his agreeable manners made him popular with the "readers" and "benchers;" and through their favor, although very deficient in "moots" and "bolts," he was called to the outer bar. clients, however, he had none, and he was in deep despair, when his former chum--having insinuated himself into the good graces of the stern and wary old man, henry vii., and those of the gay and licentious youth, henry viii.--was rapidly advancing to greatness. wolsey, while almoner, and holding subordinate offices about the court, took notice of fitzjames, advised him to stick to the profession, and was able to throw some business in his way in the court of wards and liveries-- "lofty and sour to them that lov'd him not: but to those men that sought him, sweet as summer." fitzjames was devotedly of this second class, and was even suspected to assist his patron in pursuits which drew upon him queen catharine's censure:-- "of his own body he was ill, and gave the clergy ill example." for these or other services, the cardinal, not long after he wrested the great seal from archbishop wareham, and had all legal patronage conferred upon him, boldly made fitzjames attorney general, notwithstanding loud complaints from competitors of his inexperience and incapacity. the only state trial which he had to conduct was that of the unfortunate stafford, duke of buckingham, who, having quarrelled with wolsey, and called him a "butcher's cur," was prosecuted for high treason before the lord high chancellor and court of peers, on very frivolous grounds. fitzjames had little difficulty in procuring a conviction; and although the manner in which he pressed the case seems shocking to us, he probably was not considered to have exceeded the line of his duty: and shakspeare makes buckingham, returning from westminster hall to the tower, exclaim-- "i had my trial, and, must needs say, a noble one; which makes me a little happier than my wretched father." the result was, at all events, highly satisfactory to wolsey, who, in the beginning of the following year, created fitzjames a puisne judge of the court of king's bench, with a promise of being raised to be chief justice as soon as there should be a vacancy. sir john fineux, turned of eighty, was expected to drop every term, but held on four years longer. as soon as he expired, fitzjames was appointed his successor. wolsey still zealously supported him, although thereby incurring considerable obloquy. it was generally thought that the new chief was not only wanting in gravity of moral character, but that he had not sufficient professional knowledge for such a situation. his highest quality was discretion, which generally enabled him to conceal his ignorance, and to disarm opposition. fortunately for him, the question which then agitated the country respecting the validity of the king's marriage with catharine of arragon, was considered to depend entirely on the canon law, and he was not called upon to give any opinion upon it. he thus quietly discharged the duties of his office till wolsey's fall. but he then experienced much perplexity. was he to desert his patron, or to sacrifice his place? he had an exaggerated notion of the king's vengeful feelings. the cardinal having been not only deprived of the great seal, but banished to esher, and robbed of almost the whole of his property under process of _præmunire_, while an impeachment for treason was still threatened against him, the chief justice concluded that his utter destruction was resolved upon, and that no one could show him any sympathy without sharing his fate. therefore, instead of going privately to visit him, as some old friends did, he joined in the cry against him, and assisted his enemies to the utmost. wolsey readily surrendered all his private property, but wished, for the benefit of his successors, to save the palace at whitehall, which belonged to the see of york, being the gift of a former archbishop. a reference was then made to the judges, "whether it was not forfeited to the crown;" when the chief justice suggested the fraudulent expedient of a fictitious recovery in the court of common pleas, whereby it should be adjudged to the king under a superior title. he had not the courage to show himself in the presence of the man to whom he owed every thing; and shelley, a puisne judge, was deputed to make the proposal to him in the king's name. "master shelley," said the cardinal, "ye shall make report to his highness that i am his obedient subject, and faithful chaplain and bondsman, whose royal commandment and request i will in no wise disobey, but most gladly fulfil and accomplish his princely will and pleasure in all things, and in especial in this matter, inasmuch as the fathers of the law all say that i may lawfully do it. therefore i charge your conscience, and discharge mine. howbeit, i pray you show his majesty from me that i most humbly desire his highness to call to his most gracious remembrance that there is both heaven and hell." this answer was, no doubt, reported by shelley to his brethren assembled in the exchequer chamber, although, probably, not to the king; but it excited no remorse in the breast of chief justice fitzjames, who perfected the machinery by which the town residence of the archbishops of york henceforth was annexed to the crown, and declared his readiness to concur in any proceedings by which the proud ecclesiastic, who had ventured to sneer at the reverend sages of the law, might be brought to condign punishment. accordingly, when parliament met, and a select committee of the house of lords was appointed to draw up articles of impeachment against wolsey, chief justice fitzjames, although only summoned, like the other judges, as an assessor, was actually made a member of the committee, joined in their deliberations, and signed their report. the authority of the chief justice gave such weight to the articles that they were agreed to by the lords, _nemine contradicente_; but his ingratitude and tergiversation caused much scandal out of doors, and he had the mortification to find that he might have acted an honorable and friendly part without any risk to himself, as the king, retaining a hankering kindness for his old favorite, not only praised the fidelity of cavendish and the cardinal's other dependants who stuck by him in adversity, but took cromwell into favor, and advanced him to the highest dignities, pleased with his gallant defence of his old master: thus the articles of impeachment (on which, probably, fitzjames had founded hopes of the great seal for himself) were ignominiously rejected in the house of commons. the recreant chief justice must have been much alarmed by the report that wolsey, whom he had abandoned, if not betrayed, was likely to be restored to power, and he must have been considerably relieved by the certain intelligence of the sad scene at leicester abbey in the following autumn, which secured him forever against the fear of being upbraided or punished in this world according to his deserts. however, he had now lost all dignity of character, and henceforth he was used as a vile instrument to apply the criminal law for the pleasure of the tyrant on the throne, whose relish for blood soon began to display itself, and became more eager the more it was gratified. henry retaining all the doctrines of the roman catholic religion which we protestants consider most objectionable, but making himself pope in england in place of the bishop of rome, laws were enacted subjecting to the penalties of treason all who denied his _supremacy_;[ ] and many of these offenders were tried and condemned by lord chief justice fitzjames, although he was suspected of being in his heart adverse to all innovation in religion. i must confine myself to the two most illustrious victims sacrificed by him--fisher, bishop of rochester, and sir thomas more. henry, not contented with having them attainted of _misprision of treason_, for which they were suffering the sentence of forfeiture of all their property and imprisonment during life, was determined to bring them both to the block, and for this purpose issued a special commission to try them on the capital charge of having denied his supremacy. the lord chancellor was first commissioner; but it was intended that the responsibility and the odium should chiefly rest on the lord chief justice fitzjames, who was joined in the commission along with several other common law judges of inferior rank. the case against the bishop of rochester rested on the evidence of rich, the solicitor general, who swore he had heard the prisoner say, "i believe in my conscience, and by my learning i assuredly know, that the king neither is, nor by right can be, supreme head of the church of england;" but admitted that this was in a confidential conversation, which he had introduced by declaring that "he came from the king to ask what the bishop's opinion was upon this question, and by assuring him that it never should be mentioned to any one except the king, and that the king had promised he never should be drawn into question for it afterwards." the prisoner contending that he was not guilty of the capital crime charged for words so spoken, the matter was referred to the judges. "lord chief justice fitzjames, in their names, declared 'that this message or promise from the king to the prisoner neither did nor could, by rigor of law, discharge him; but in so declaring of his mind and conscience against the _supremacy_--yea, though it were at the king's own request or commandment--he committed treason by the statute, and nothing can discharge him from death but the king's pardon.'" _bishop of rochester._--"yet i pray you, my lords, consider that by all equity, justice, worldly honesty, and courteous dealing, i cannot, as the case standeth, be directly charged therewith as with treason, though i had spoken the words indeed, the same not being spoken maliciously, but in the way of advice or counsel, when it was required of me by the king himself; and that favor the very words of the statute do give me, being made only against such as shall '_maliciously_ gainsay the king's supremacy,' and none other; wherefore, although by rigor of law you may take occasion thus to condemn me, yet i hope you cannot find law, except you add rigor to that law, to cast me down, which herein i have not deserved." _fitzjames, c. j._--"all my brethren are agreed that '_maliciously_' is a term of art and an inference of law, not a qualification of fact. in truth, it is a superfluous and void word; for if a man speak against the king's supremacy by any manner of means, that speaking is to be understood and taken in law as _malicious_." _bishop of rochester._--"if the law be so, then it is a hard exposition, and (as i take it) contrary to the meaning of them that made the law, as well as of ordinary persons who read it. but then, my lords, what says your wisdom to this question, 'whether a single testimony may be admitted to prove me guilty of treason; and may it not be answered by my negative?' often have i heard it said, that to overcome the presumption from the oath of allegiance to the king's majesty, and to guard against the dire consequences of the penalties for treason falling on the head of an innocent man, none shall be convicted thereof save on the evidence of two witnesses at the least." _fitzjames, c. j._--"this being the king's case, it rests much in the conscience and discretion of the jury; and as they upon the evidence shall find it, you are either to be acquitted or else to be condemned." the report says that "the bishop answered with many more words, both wisely and profoundly uttered, and that with a mervailous, couragious, and rare constancy, insomuch as many of his hearers--yea, some of the judges--lamented so grievously, that their inward sorrow was expressed by the outward teares in their eyes, to perceive such a famous and reverend man in danger to be condemned to a cruell death upon so weake evidence, given by such an accuser, contrary to all faith, and the promise of the king himself." a packed jury, being left to their conscience and discretion, found a verdict of guilty; and henry was able to make good his saying, when he was told that the pope intended to send bishop fisher a cardinal's hat--"'fore god, then, he shall wear it on his shoulders, for i will have his head off." the conduct of the chief justice at the trial of sir thomas more was not less atrocious. after the case for the crown had been closed, the prisoner, in an able address to the jury, clearly proved that there was no evidence whatever to support the charge, and that he was entitled to an acquittal; when rich, the solicitor general, was permitted to present himself in the witness box, and to swear falsely, that "having observed, in a private conversation with the prisoner in the tower, 'no parliament could make a law that god should not be god,'[ ] sir thomas replied, 'no more can the parliament make the king supreme head of the church.'" a verdict of guilty was pronounced against the prisoner, notwithstanding his solemn denial of ever having spoken these words. he then moved, in arrest of judgment, that the indictment was insufficient, as it did not properly follow the words of the statute which made it high treason to deny the king's supremacy, even supposing that parliament had power to pass such a statute. the lord chancellor, whose duty it was, as head of the commission, to pass the sentence--"not willing," says the report, "to take the whole load of his condemnation on himself, asked in open court the advice of sir john fitzjames, the lord chief justice of england, whether the indictment was valid or no." _fitzjames, c. j._--"my lords all, by st. gillian, (for that was always his oath,) i must needs confess that if the act of parliament be not unlawful, then the indictment is not, in my conscience, invalid." _lord chancellor._--"_quid adhuc desideramus, testimonium? reus est mortis._ (what more do we need? he is worthy of death.) sir thomas more, you being, by the opinion of that reverend judge, the chief justice of england, and of all his brethren, duly convicted of high treason, this court doth adjudge that you be carried back to the tower of london, and that you be thence drawn on a hurdle to tyburn, where you are to be hanged till you are half dead, and then being cut down alive and embowelled, and your bowels burnt before your face, you are to be beheaded and quartered, your four quarters being set up over the four gates of the city, and your head upon london bridge." no one can deny that lord chief justice fitzjames was an accessory to this atrocious murder. the next occasion of his attracting the notice of the public was when he presided at the trials of smeaton and the other supposed gallants of anne boleyn. luckily for him, no particulars of these trials have come down to us, and we remain ignorant of the arts by which a conviction was obtained, and even a _confession_--although there is every reason to believe that the parties were innocent. according to the rules of evidence which then prevailed, the convictions and confessions of the gallants were to be given in evidence to establish the guilt of the unhappy queen, for whose death henry was now as impatient as he had once been to make her his wife. when the lord high steward and the peers assembled for her trial, fitzjames and the other judges attended, merely as assessors, to advise on any point of law which might arise. i do not find that they were consulted till the verdict of guilty had been recorded, and sentence was to be pronounced. _burning_ was the death which the law appointed for a woman attainted of treason; yet as anne had been queen of england, some peers suggested that it might be left to the king to determine whether she should die such a cruel and ignominious death, or be _beheaded_, a punishment supposed to be attended with less pain and less disgrace. but then a difficulty arose whether, although the king might remit all the atrocities of the sentence on a man for treason, except beheading, which is part of it, he could order a person to be beheaded who was sentenced to be burnt. a solution was proposed, that she should be sentenced by the lord high steward to be "burnt or beheaded at the king's pleasure;" and the opinion of the judges was asked, "whether such a sentence could be lawfully pronounced." _fitzjames, c. j._--"my lords, neither myself nor any of my learned brothers have ever known or found in the records, or read in the books, or known or heard of, a sentence of death in the alternative or disjunctive, and incline to think that it would be bad for uncertainty. the law delights in certainty. where a choice is given, by what means is the choice to be exercised? and if the sheriff receives no special directions, what is he to do? is sentence to be stayed till special directions are given by the king? and if no special directions are given, is the prisoner, being attainted, to escape all punishment? prudent antiquity advises you _stare super antiquas vias_; and that which is without precedent is without safety." after due deliberation, it was held that an absolute sentence of beheading would be lawful, and it was pronounced accordingly; the court being greatly comforted by recollecting that no writ of error lay, and that their judgment could not be reversed. fitzjames died in the year , before this judgment served as a precedent for that upon the unfortunate queen catharine howard; and he was much missed when the bloody statute of the six articles brought so many, both of the old and of the reformed faith, on capital charges, before the court of king's bench. chapter v. thomas fleming. the greatest part of my readers never before read or heard of the name of thomas fleming; yet, starting in the profession of the law with francis bacon, he was not only preferred to him by attorneys, but by prime ministers, and he had the highest professional honors showered upon him, while the immortal philosopher, orator, and fine writer continued to languish at the bar without any advancement, notwithstanding all his merits and all his intrigues. but fleming had superior good fortune, and enjoyed temporary consequences, because he was a mere lawyer--because he harbored no idea or aspirations beyond the routine of westminster hall--because he did not mortify the vanity of the witty, or alarm the jealousy of the ambitious. he was the younger son of a gentleman of small estate in the isle of wight. i do not find any account of his early education, and very little interest can now be felt respecting it; although we catch so eagerly at any trait of the boyhood of his rival, whom he despised. soon after he was called to the bar, by unwearied drudgery he got into considerable practice; and it was remarked that he always tried how much labor he could bestow upon every case intrusted to him, while his more lively competitors tried with how little labor they could creditably perform their duty. in the end of the year , he was called to the degree of serjeant, along with eight others, and was thought to be the most deeply versed in the law of real actions of the whole batch. it happened that, soon after, there was a vacancy in the office of solicitor general, on the promotion of sir edward coke to be attorney general. bacon moved heaven and earth that he himself might succeed to it. he wrote to his uncle, lord treasurer burleigh, saying, "i hope you will think i am no unlikely piece of wood to shape you a true servant of." he wrote to the queen elizabeth, saying, "i affect myself to a place of my profession, such as i do see divers younger in proceeding to myself, and men of no great note, do without blame aspire unto; but if your majesty like others better, i shall, with the lacedemonian, be glad that there is such choice of abler men than myself." he accompanied this letter with a valuable jewel, to show off her beauty. he did what he thought would be still more serviceable, and, indeed, conclusive; he prevailed upon the young earl of essex, then in the highest favor with the aged queen, earnestly to press his suit. but the appointment was left with the lord treasurer, and he decided immediately against his nephew, who was reported to be no lawyer, from giving up his time to profane learning--who had lately made an indiscreet, although very eloquent, speech in the house of commons--and who, if promoted, might be a dangerous rival to his cousin, robert cecil, then entering public life, and destined by his sire to be prime minister. the cunning old fox then inquired who would be a competent person to do the queen's business in her courts, and would give no uneasiness elsewhere; and he was told by several black-letter judges whom he consulted that "serjeant fleming was the man for him." after the office had been kept vacant by these intrigues above a year, serjeant fleming was actually appointed. bacon's anguish was exasperated by comparing himself with the new solicitor; and in writing to essex, after enumerating his own pretensions, he says, "when i add hereunto the obscureness and many exceptions to my competitor, i cannot but conclude with myself that no man ever had a more exquisite disgrace." he resolved at first to shut himself up for the rest of his days in a cloister at cambridge. a soothing message from the queen induced him to remain at the bar; but he had the mortification to see the man whom he utterly despised much higher in the law than himself, during the remainder of this and a considerable part of the succeeding reign. fleming, immediately upon his promotion, gave up his serjeantship, and practised in the court of queen's bench. he was found very useful in doing the official business, and gave entire satisfaction to his employers. at the calling of a new parliament, in the autumn of , he was returned to the house of commons for a cornish borough; and, according to the usual practice at that time, he ought, as solicitor general, to have been elected speaker; but his manner was too "lawyer-like and ungenteel" for the chair, and serjeant croke, who was more presentable, was substituted for him. he opened his mouth in the house only once, and then he broke down. this was in the great debate on the grievance of monopolies. he undertook to defend the system of granting to individuals the exclusive right of dealing in particular commodities; but when he had described the manner in which patents passed through the different offices before the great seal is put to them, he lost his recollection and resumed his seat. bacon, now member for middlesex, to show what a valuable solicitor general the government had lost, made a very gallant speech, in which he maintained that "the queen, as she is our sovereign, hath both an enlarging and restraining power: for, by her prerogative, she may, st, set at liberty things restrained by statute law or otherwise; and dly, by her prerogative she may restrain things which be at liberty." he concluded by expressing the utmost horror of introducing any bill to meddle with the powers of the crown upon the subject, and protesting that "the only lawful course was to leave it to her majesty of her own free will to correct any hardships, if any had arisen in the exercise of her just rights, as the arbitress of trade and commerce in the realm." this pleased her exceedingly, and even softened her ministers, insomuch that a promise was given to promote fleming as soon as possible, and to appoint bacon in his place. in those days there never existed the remotest notion of dismissing an attorney or solicitor general, any more than a judge; for, though they all alike held _during pleasure_, till the accession of the house of stuart the tenure of all of them was practically secure. an attempt was made to induce fleming to accept the appointment of queen's serjeant, which would have given him precedence over the attorney general; but this failed, for he would thereby have been considered as put upon the shelf, instead of being on the highway to promotion. elizabeth died, leaving bacon with no higher rank than that of queen's counsel; and on the accession of james i., fleming was reappointed solicitor general. the event justified his firmness in resisting the attempt to shelve him, for in the following year, on the death of sir william peryam, he was appointed chief baron of the exchequer. while he held this office, he sat along with lord chief justice popham on the trial of guy fawkes and the gunpowder conspirators; but he followed the useful advice for subordinate judges on such an occasion--"to look wise, and to say nothing." his most memorable judgment as chief baron was in what is called "the great case of impositions." this was, in truth, fully as important as hampden's case of ship money, but did not acquire such celebrity in history, because it was long acquiesced in, to the destruction of public liberty, whereas the other immediately produced the civil war. after an act of parliament had passed at the commencement of james's reign, by which an import duty of _s._ _d._ per cwt. was imposed upon currants, he by his own authority laid on an additional duty of _s._ _d._, making _s._ per cwt. bates, a levant merchant, who had imported a cargo of currants from venice, very readily paid the parliamentary duty of _s._ _d._ upon it, but refused to pay more; thereupon the attorney general filed an information in the court of exchequer, to compel him to pay the additional duty of _s._ _d._; so the question arose, whether he was by law compellable to do so. after arguments at the bar which lasted many days,-- _fleming, c. b._, said: "the defendant's plea in this case is without precedent or example, for he alleges that the imposition which the king has laid is '_indebitè, injustè, et contra leges angliæ imposita_, and, therefore, he refused to pay it.' the king, as is commonly said in our books, _cannot do wrong_; and if the king seize any land without cause, i ought to sue to him in humble manner (_humillime supplicavit_, &c.), and not in terms of opposition. the matter of the plea first regards the prerogative, and to derogate from that is a part most undutiful in any subject. next it concerns the transport of commodities into and out of the realm, the due regulation of which is left to the king for the public good. the imposition is properly upon currants, and not upon the defendant, for upon him no imposition shall be but by parliament.(!) the things are currants, a foreign commodity. the king may restrain the person of a subject in leaving or coming into the realm, and _a fortiori_, may impose conditions on the importation or exportation of his goods. to the king is committed the government of the realm; and bracton says, 'that for his discharge of his office god hath given him the power to govern.' this power is double--ordinary and absolute. the ordinary is for the profit of particular subjects--the determination of civil justice; that is nominated by civilians _jus privatum_, and it cannot be changed without parliament. the absolute power of the king is applied for the general benefit of the people; it is most properly named _policy_, and it varieth with the time, according to the wisdom of the king, for the common good. if this imposition is matter of state, it is to be ruled by the rules of policy, and the king hath done well, instead of 'unduly, unjustly, and contrary to the laws of england.' all commerce and dealings with foreigners, like war and peace and public treaties, are regulated and determined by the absolute power of the king. no importation or exportation can be but at the king's ports. they are his gates, which he may open or close when and on what conditions he pleases. he guards them with bulwarks and fortresses, and he protects ships coming hither from pirates at sea; and if his subjects are wronged by foreign princes, he sees that they are righted. ought he not, then, by the custom he imposes, to enable himself to perform these duties? the impost to the merchant is nothing, for those who wish for his commodities must buy them subject to the charge; and, in most cases, it shall be paid by the foreign grower, and not by the english consumer. as to the argument that the currants are _victual_, they are rather a delicacy, and are no more necessary than wine, on which the king lays what customs seemeth him good. for the amount of the imposition it is not unreasonable, seeing that it is only four times as much as it was before. the wisdom and providence of the king must not be disputed by the subject; by intendment they cannot be severed from his person. and to argue _a posse ad actum_, because by his power he may do ill, is no argument to be used in this place. if it be objected that no reason is assigned for the rise, i answer it is not reasonable that the king should express the cause and consideration of his actions; these are _arcana regis_, and it is for the benefit of every subject that the king's treasure should be increased." he then at enormous length went over all the authorities and acts of parliament, contending that they all prove the king's power to lay what taxes he pleases on goods imported, and he concluded by giving judgment for the crown. historians take no notice of this decision, although it might have influenced the destinies of the country much more than many of the battles and sieges with which they fill their pages. had our foreign commerce then approached its present magnitude, parliaments would never more have met in england,--duties on tea, sugar, timber, tobacco, and corn, imposed by royal proclamation, being sufficient to fill the exchequer,--and the experiment of ship money would never have been necessary. the chief baron most certainly misquotes, misrepresents, and mystifies exceedingly; but, however fallacious his reasoning, the judgment ought not to be passed over in silence by those who pretend to narrate our annals, for it was pronounced by a court of competent jurisdiction, and it was acted upon for years as settling the law and constitution of the country.[ ] king james declared that chief baron fleming was a judge to his heart's content. he had been somewhat afraid when he came to england that he might hear such unpalatable doctrines as had excited his indignation in buchanan's treatise, "_de jure regni apud scotis_," and he expressed great joy in the solemn recognition that he was an absolute sovereign. our indignation should be diverted from him and his unfortunate son, to the base sycophants, legal and ecclesiastical, who misled them. on the death of popham, no one was thought so fit to succeed him as fleming, of whom it was always said that, "_though slow, he was sure_;" and he became chief justice of england the very same day on which francis bacon mounted the first step of the political ladder, receiving the comparatively humble appointment of solicitor general. lord chief justice fleming remained at the head of the common law rather more than six years. during that time the only case of general interest which arose in westminster hall was that of the postnati. as might be expected, to please the king, he joined cordially in what i consider the illegal decision, that persons born in scotland after the accession of james to the throne of england, were entitled to all the privileges of natural born subjects in england, although it was allowed that scotland was an entirely separate and independent kingdom. luckily, the question is never likely again to arise since the severance of the crown of hanover from that of great britain; but if it should, i do not think that calvin's case could by any means be considered a conclusive authority, being founded upon such reasoning as that "if our king conquer a christian country, its laws remain till duly altered; whereas if he conquer an infidel country, the laws are _ipso facto_ extinct, and he may massacre all the inhabitants." lord chief justice fleming took the lead in the prosecution of the countess of shrewsbury before the privy council, on the charge of having refused to be examined respecting the part she had acted in bringing about a clandestine marriage, in the tower of london, between the lady arabella stuart, the king's cousin, and sir william somerset, afterwards duke of somerset. he laid it down for law, that "it was a high misdemeanor to marry, or to connive at the marriage of any relation of the king without his consent, and that the countess's refusal to be examined was 'a contempt of the king, his crown and dignity, which, if it were to go unpunished, might lead to many dangerous enterprises against the state.' he therefore gave it as his opinion that she should be fined £ , and confined during the king's pleasure." while this poor creature presided in the king's bench, he was no doubt told by his officers and dependants that he was the greatest chief justice that had appeared there since the days of gascoigne and fortescue; but he was considered a very small man by all the rest of the world, and he was completely eclipsed by sir edward coke, who at the same time was chief justice of the common pleas, and who, to a much more vigorous intellect and deeper learning, added respect for constitutional liberty and resolution at every hazard to maintain judicial independence. from the growing resistance in the nation to the absolute maxims of government professed by the king and sanctioned by almost all his judges, there was a general desire that the only one who stood up for law against prerogative should be placed in a position which might give greater weight to his efforts on the popular side; but of this there seemed no prospect, for the subservient fleming was still a young man, and likely to continue many years the tool of the government. in the midst of these gloomy anticipations, on the th day of october, , the joyful news was spread of his sudden death. i do not know, and i have taken no pains to ascertain, where he was buried, or whether he left any descendants. in private life he is said to have been virtuous and amiable, and the discredit of his incompetency in high office ought to be imputed to those who placed him there, instead of allowing him to prose on as a drowsy serjeant at the bar of the common pleas, the position for which nature had intended him. chapter vi. nicholas hyde. after the abrupt dissolution of the second parliament of charles i. without the grant of a supply, all redress of grievances being refused, the plan was deliberately formed of discontinuing entirely the use of popular assemblies in england, and of ruling merely by prerogative. for this purpose it was indispensably necessary that the king should have the power of imposing taxes, and the power of arbitrary imprisonment. he began to exercise both these powers by assessing sums which all persons of substance were called upon to contribute to the revenue according to their supposed ability, and by issuing warrants for committing to jail those who resisted the demand. but these measures could not be rendered effectual without the aid of the judges; for hitherto in england the validity of any fiscal imposition might be contested in a court of justice; and any man deprived of his liberty might, by suing out a writ of _habeas corpus_, have a deliberate judgment upon the question "whether he was lawfully detained in custody or not." sir thomas darnel, sir edmund hampden, and other public-spirited men, having peremptorily refused to pay the sums assessed upon them, had been cast into prison, and were about to seek legal redress for their wrongs. in the coming legal contest, almost every thing would depend upon the chief justice of the king's bench. according to a well-known fashion which prevailed in those times, the attorney general, by order of the government, sounded sir randolph crewe, then holding that office, to which he had been appointed hardly two years before, respecting his opinions on the agitated points, and was shocked to hear a positive declaration from him that by the law of england, no tax or talliage, under whatever name or disguise, can be laid upon the people without the authority of parliament, and that the king cannot imprison any of his subjects without a warrant specifying the offence with which they are charged. this being reported to the cabinet, sir randolph crewe was immediately dismissed from his office; and, in a few weeks after, sir nicholas hyde was made chief justice in his stead. he was the uncle of the great lord clarendon. they were sprung from the ancient family of "_hyde of that ilk_" in the county palatine of chester; their branch of it having migrated, in the sixteenth century, into the west of england. the chief justice was the fourth son of lawrence hyde, of gussage st. michael, in the county of dorset. before being selected as a fit tool of an arbitrary government, he had held no office whatever; but he had gained the reputation of a sound lawyer, and he was a man of unexceptionable character in private life. he was known to be always a stanch stickler for prerogative; but this was supposed to arise rather from the sincere opinion he had formed of what the english constitution was, or ought to be, than from a desire to recommend himself for promotion. he is thus good naturedly introduced by rushworth:-- "sir randolf crewe, showing no zeal for the advancement of the loan, was removed from his place of lord chief justice, and sir nicholas hyde succeeded in his room--a person who, for his parts and abilities, was thought worthy of that preferment; yet, nevertheless, came to the same with a prejudice, coming in the place of one so well-beloved, and so suddenly removed." whether he was actuated by mistaken principle or by profligate ambition, he fully justified the confidence reposed in him by his employers. soon after he took his seat in the court of king's bench, sir thomas darnel and several others, committed under the same circumstances, were brought up before him on a writ of _habeas corpus_; and the question arose whether the king of england, by _lettre de cachet_, had the power of perpetual imprisonment without assigning any cause. the return of the jailer, being read, was found to set out, as the only reason for sir thomas darnel's detention, a warrant, signed by two privy councillors, in these words:-- "whereas, therefore, the body of sir thomas darnel hath been committed to your custody, these are to require you still to detain him, and to let you know that he was and is committed by the special command of his majesty." lord chief justice hyde proceeded with great temper and seeming respect for the law, observing, "whether the commitment be by the king or others, this court is a place where the king doth sit in person, and we have power to examine it; and if any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him; if otherwise, he is to be remanded by us to prison again." selden, noy,[ ] and the other counsel for the prisoners, encouraged by this intimation, argued boldly that the warrant was bad on the face of it, _per speciale mandatum domini regis_ being too general, without specifying an offence for which a person was liable to be detained without bail; that the warrant should not only state the authority to imprison, but the cause of the imprisonment; and that if this return were held good, there would be a power of shutting up, till a liberation by death, any subject of the king, without trial and without accusation. after going over all the common law cases and the acts of parliament upon the subject, from magna charta downwards, they concluded with the _dictum_ of paul the apostle, "it is against reason to send a man to prison without showing a cause." _hyde, c. j._--"this is a case of very great weight and great expectation. i am sure you look for justice from hence, and god forbid we should sit here but to do justice to all men, according to our best skill and knowledge; for it is our oaths and duties so to do. we are sworn to maintain all prerogatives of the king: that is one branch of our oath; but there is another--to administer justice equally to all people. that which is now to be judged by us is this: 'whether, where one is committed by the king's authority, and by cause declared of his commitment, we ought to deliver him by bail, or to remand him.'" from such a fair beginning,[ ] there must have been a general anticipation of a just judgment; but, alas! his lordship, without combating the arguments, statutes, or texts of scripture relied upon, said, "the court must be governed by precedents;"[ ] and then going over all the precedents which had been cited, he declared that there was not one where, there being a warrant _per speciale mandatum domini regis_, the judges had interfered and held it insufficient. he said he had found a resolution of all the judges in the reign of queen elizabeth, that if a man be committed by the commandment of the king, he is not to be delivered by a _habeas corpus_ in this court, "for we know not the cause of the commitment." thus he concluded:-- "what can we do but walk in the steps of our forefathers? mr. attorney hath told you the king has done it for cause sufficient, and we trust him in great matters. he is bound by law, and he bids us proceed by law; we are sworn so to do, and so is the king. we make no doubt the king, he knowing the cause why you are imprisoned, will have mercy. on these grounds we cannot deliver you, but you must be remanded."[ ] this judgment was violently attacked in both houses of parliament. in the house of lords the judges were summoned, and required to give their reasons for it. sir nicholas hyde endeavored to excuse himself and his brethren from this task by representing it as a thing they ought not to do without warrant from the king. lord say observed, "if the judges will not declare themselves, we must take into consideration the point of our privilege." to soothe the dangerous spirit which disclosed itself, buckingham obtained leave from the king that the judges should give their reasons, and sir nicholas hyde again went over all the authorities which had been cited in the king's bench in support of the prerogative. these were not considered by any means satisfactory; but, as the chief justice could no longer be deemed contumacious, he escaped the commitment with which he had been threatened. sir edward coke,[ ] and the patriots in the house of commons, were not so easily appeased, and they for some time threatened lord chief justice hyde and his brethren with an impeachment; but it was hoped that all danger to liberty would be effectually guarded against for the future by compelling the reluctant king to agree to the petition of right. before charles would give the royal assent to it--meaning not to be bound by it himself, but afraid that the judges would afterwards put limits to his power of arbitrary imprisonment--he sent for chief justice hyde and chief justice richardson, of the common pleas, to whitehall, and directed them to return to him the answer of themselves and their brethren to this question, "whether in no case whatsoever the king may commit a subject without showing cause." the answer shows that they had been daunted by the denunciations of sir edward coke, and that they were driven to equivocate: "we are of opinion that, by the general rule of law, the cause of commitment by his majesty ought to be shown; yet some cases may require such secrecy that the king may commit a subject without showing the cause, for a convenient time." charles then delivered to them a second question, and desired them to keep it very secret, "whether, if to a _habeas corpus_ there be returned a warrant from the king without any special cause, the judges ought to liberate him before they understand from the king what the cause is." they answered, "if no cause be assigned in the warrant, the party ought, by the general rule of law, to be liberated; but, if the case requireth secrecy, and may not presently be disclosed, the court, in its discretion, may forbear to liberate the prisoner for a convenient time, till they are advertised of the truth thereof." he then came to the point with his third question, "whether, if the king grant the commons' petition, he doth not thereby exclude himself from committing or restraining a subject without showing a cause." hyde reported this response: "every law, after it is made, hath its exposition, which is to be left to the courts of justice to determine; and, although the petition be granted, there is no fear of conclusion, as is intimated in the question." the judges having thus pledged themselves to repeal the act for him by misconstruing it,[ ] he allowed it to be added to the statute book. no sooner was the parliament that passed it abruptly dissolved than it was flagrantly violated, and selden, sir john eliot, and other members of the house of commons, were arrested for the speeches they had delivered, and for requiring the speaker to put from the chair a motion which had been made and seconded. this proceeding was more alarming to public liberty than any thing that had been before attempted by the crown; if it succeeded, there was no longer the hope of any redress in parliament for the corrupt decisions of the common law courts. to make all sure by an extrajudicial opinion,[ ] lord chief justice hyde and the other judges were assembled at serjeants' inn, and, by the king's command, certain questions were put to them by the attorney general. the answers to these, given by the mouth of the chief justice, if acted upon, would forever have extinguished the privilege and the independence of the house of commons: "that a parliament man committing an offence against the king in parliament, not in a parliamentary course, may be punished after the parliament is ended; for, though regularly he cannot be compelled out of parliament to answer things done in parliament in a parliamentary course, it is otherwise where things are done exorbitantly;" and "that by false slanders to bring the lords of the council and the judges, not in a parliamentary way, into the hatred of the people, and the government into contempt, was punishable out of parliament, in the star chamber, as an offence committed in parliament beyond the office, and besides the duty, of a parliament man." the parties committed were brought up by _habeas corpus_, and, the public being much scandalized, an offer was made that they might be bailed; but, they refusing to give bail, which they said would be compromising the privileges of the house of commons, lord chief justice hyde remanded them to jail. the attorney general having then filed an ex-officio information against them for their misconduct in parliament, they pleaded to the jurisdiction of the court "because these offences, being supposed to be done in parliament, ought not to be punished in this court, or elsewhere than in parliament." chief justice hyde tried at once to put an end to the case by saying that "all the judges had already resolved with one voice, that an offence committed in parliament, criminally or contemptuously, the parliament being ended, rests punishable in the court of king's bench, in which the king by intendment sitteth." the counsel for the defendants, however, would be heard, and were heard in vain; for chief justice hyde treated their arguments with scorn, and concluded by observing, "as to what was said, that an 'inferior court cannot meddle with matters done in a superior,' true it is that an inferior court cannot meddle with the _judgments_ of a superior court; but if particular members of a superior court offend, they are ofttimes punishable in an inferior court--as if a judge shall commit a capital offence in this court, he may be arraigned thereof at newgate. the behavior of parliament men ought to be parliamentary. parliament is a higher court than this, but every member of parliament is not a court, and if he commit an offence we may punish him. the information charges that the defendants acted _unlawfully_, and they could have no privilege to violate the law. no outrageous speeches have been made against a great minister of state in parliament that have not been punished." the plea being overruled, the defendants were sentenced to be imprisoned during the king's pleasure, and to be fined, sir john eliot in £ , and the others in smaller sums. this judgment was severely condemned by the house of commons at the meeting of the long parliament, and was afterwards reversed, on a writ of error, by the house of lords. but lord chief justice hyde escaped the fate of his predecessor, chief justice tresilian, who was hanged for promulgating similar doctrines, for he was carried off by disease when he had disgraced his office four years and nine months. he died at his house in hampshire, on the th of august, . in justice to the memory of sir nicholas hyde, i ought to mention that he was much respected and lauded by true courtiers. sir george croke describes him as "a grave, religious, discreet man, and of great learning and piety." oldmixon pronounces him to have been "a very worthy magistrate," and highly applauds his judgment in favor of the power of the crown to imprison and prosecute parliament men for what they have done in the house of commons. chapter vii. john brampston. on the vacancy in the office of chief justice of the king's bench, created by the death of sir thomas richardson, a. d. , the king and his ministers were exceedingly anxious to select a lawyer fitted to be his successor. resolved to raise taxes without the authority of parliament, they had launched their grand scheme of ship money, and they knew that its validity would speedily be questioned. to lead the opinions of the judges, and to make a favorable impression on the public, they required a chief on whose servility they could rely, and who, at the same time, should have a great reputation as a lawyer, and should be possessed of a tolerable character for honesty. such a man was mr. serjeant brampston. he was born at maldon, in essex, of a family founded there in the reign of richard ii. by a citizen of london, who had made a fortune in trade and had served the office of sheriff. when very young, he was sent to the university of cambridge; and there he gained high renown by his skill in disputation, which induced his father to breed him to the bar. accordingly, he was transferred to the middle temple, and studied law there for seven years with unwearied assiduity. at the end of this period, he was called to the bar, having then amassed a store of law sufficient to qualify him at once to step upon the bench. different public bodies strove to have the benefit of his advice; and very soon he was standing counsel for his own university, and likewise for the city of london, with an annual fee _pro concilio impenso et impendendo_, (for counsel given and to be given.) having been some years an "apprentice," he took the degree of serjeant at law. according to a practice very common in our profession, he had, in the language of mr. gurney, the famous stenographer, "started in the sedition line," that is, defending persons prosecuted for political offences by the government. he was counsel for almost all the patriots who, in the end of the reign of james i. and the beginning of the reign of charles i., were imprisoned for their refractory conduct in the house of commons; and one of the finest arguments to be found in our books is one delivered by him in sir thomas darnel's case, to prove that a warrant of commitment by order of the king, without specifying the offence, is illegal. he refused a seat in the house of commons, as it suited him better to plead for those who were in the tower than to be sent thither himself. by and by, the desire of obtaining the honors of the profession waxed strong within him, and he conveyed an intimation, by a friend, to the lord keeper that it would be much more agreeable to him to be retained for the government than to be always against it. the offer was accepted; he was taken into the counsels of noy, the attorney general, and he gave his assistance in defending all stretches of prerogative. promotions were now showered down upon him; he was made chief justice of ely, attorney general to the queen, king's serjeant, and a knight. although very zealous for the crown, and really unscrupulous, he was anxious to observe decency of deportment, and to appear never to transgress the line of professional duty. noy[ ] would have been the man to be appointed chief justice of the king's bench to carry through his tax by a judicial decision in its favor, but he had suddenly died soon after the ship money writs were issued; and, after him, sir john brampston was deemed the fittest person to place at the head of the common law judges. on the th of april, , his installation took place, which was, no doubt, very splendid; but we have no account of it except the following by sir george croke:-- "first, the lord keeper made a grave and long speech, signifying the king's pleasure for his choice, and the duties of his place; to which, after he had answered at the bar, returning his thanks to the king, and promising his endeavor of due performance of his duty in his place, he came from the bar into court, and there kneeling, took the oaths of supremacy and allegiance: then standing, he took the oath of judge: then he was appointed to come up to the bench, and then his patent (which was only a writ) being read, the lord keeper delivered it to him. but sir william jones (the senior puisne judge) said the patent ought to have been read before he came up to the bench."[ ] in quiet times, lord chief justice brampston would have been respected as an excellent judge. he was above all suspicion of bribery, and his decisions in private causes were sound as well as upright. but, unhappily, he by no means disappointed the expectations of the government.[ ] soon after his elevation, he was instructed to take the opinion privately of all the judges on the two celebrated questions:-- " . whether, in cases of danger to the good and safety of the kingdom, the king may not impose ship money for its defence and safeguard, and by law compel payment from those who refuse? . whether the king be not the sole judge both of the danger, and when and how it is to be prevented?" there is reason to think that he himself was taken in by the craft of lord keeper coventry, who represented that the opinion of the twelve judges was wanted merely for the king's private satisfaction, and that no other use would be made of it. at a meeting of all the judges in serjeant's inn hall, lord chief justice brampston produced an answer to both questions in the affirmative, signed by himself. nine other judges, without any hesitation, signed it after him; but two, croke and hutton, declared that they thought the king of england never had such a power, and that, if he ever had, it was taken away by the act _de tallagio non concedendo_, the petition of right, and other statutes; but they were induced to sign the paper upon a representation that their signature was a mere formality. the unscrupulous lord keeper, having got the paper into his possession, immediately published it to the world as the unanimous and solemn decision of all the judges of england; and payment of ship money was refused by john hampden alone. his refusal brought on the grand trial, in the exchequer chamber, upon the validity of the imposition. lord chief justice brampston, in a very long judgment, adhered to the opinion he had before given for the legality of the tax, although he characteristically expressed doubt as to the regularity of the proceeding on technical grounds. croke and hutton manfully insisted that the tax was illegal; but, all the other judges being in favor of the crown, hampden was ordered to pay his _s._ soon after, the same point arose in the court of king's bench in the case of the lord say, who, envying the glory which hampden had acquired, allowed his oxen to be taken as a distress for the ship money assessed upon him, and brought an action of trespass for taking them. but banks, the attorney general, moved that counsel might not be permitted to argue against what had been decided in the exchequer chamber; and lord chief justice brampston said, "such a judgment should be allowed to stand until it were reversed in parliament, and none ought to be suffered to dispute against it."[ ] the crown lawyers were thrown into much perplexity by the freak of the rev. thomas harrison, a country parson, who can hardly be considered a fair specimen of his order at that time, and must either have been a little deranged in his intellect, or animated by an extraordinary eagerness for ecclesiastical promotion. having heard that mr. justice hutton, while on the circuit, had expressed an opinion unfavorable to ship money, he followed him to london, and, while this reverend sage of the law was seated with his brethren on the bench of the court of common pleas, and westminster hall was crowded with lawyers, suitors, and idlers, marched up to him, and making proclamation, "_oyez! oyez! oyez!_" said with a loud voice, "mr. justice hutton, you have denied the king's supremacy, and i hereby charge you with being guilty of high treason." the attorney general, however much he might secretly honor such an ebullition of loyalty, was obliged to treat it as an outrage, and an _ex officio_ information was filed against the delinquent for the insult he had offered to the administration of justice. at the trial the reverend defendant confessed the speaking of the words, and gloried in what he had done, saying,-- "i confess that judges are to be honored and revered as sacred persons so long as they do their duty; but having taken the oath of supremacy many times, i am bound to maintain it, and when it is assailed, as by the denying of ship money, it is time for every loyal subject to strike in." _brampston, c. j._--"the denying of ship money may be, and i think is, very wrong; but is it against the king's supremacy?" _harrison._--"as a loyal subject, i did labor the defence of his majesty, and how can i be guilty of a crime? i say again that mr. justice hutton has committed treason, for upon his charge the people of the country do now deny ship money. his offence being openly committed, i conceived it not amiss to make an open accusation. the king will not give his judges leave to speak treason, nor have they power to make or pronounce laws against his prerogative. we are not to question the king's actions; they are only between god and his own conscience. '_sufficit regi, quod deus est._' this thesis i will stand to--that whatsoever the king in his conscience thinketh he may require, we ought to yield."[ ] the defendant having been allowed to go on in this strain for a long time, laying down doctrines new in courts of justice, although in those days often heard from the pulpit, the chief justice at last interposed, and said,-- "mr. harrison, if you have any thing to say in your own defence, proceed; but this raving must not be suffered. do you not think that the king may govern his people by law?" _harrison._--"yes, and by something else too. if i have offended his majesty in this, i do submit to his majesty, and crave his pardon." _brampston, c. j._--"your 'if' will be very ill taken by his majesty; nor can this be considered a submission." the defendant, being found guilty, was ordered to pay a fine to the king of £ , and to be imprisoned--without prejudice to the remedy of mr. justice hutton by action. such an action was accordingly brought, and so popular was mr. justice hutton, that he recovered £ , damages; whereas it was said that, if the chief justice had been the plaintiff in an action for defamation, he need not have expected more than a norfolk groat. lord chief justice brampston's services were likewise required in the star chamber. he there zealously assisted archbishop laud in persecuting williams, bishop of lincoln, ex-keeper of the great seal. when the sentence was to be passed on this unfortunate prelate, ostensibly for tampering with the witnesses who were to give evidence against him on a former accusation, which had been abandoned as untenable, but in reality for opposing laud's popish innovations in religious ceremonies, brampston declaimed bitterly against the right reverend defendant, saying,-- "i find my lord bishop of lincoln much to blame in persuading, threatening, and directing of witnesses--a foul fault in any, but in him most gross who hath _curam animarum_ throughout all his diocese. to destroy men's souls is most odious, and to be severely punished. i do hold him not fit to have the cure of souls, and therefore i do censure him to be suspended _tam ab officio quam a beneficio_, to pay a fine of £ , , and to be imprisoned during the king's pleasure." this sentence, although rigorously executed, did not satiate the vengeance of the archbishop; and the bishop, while lying a prisoner in the tower, having received some letters from one of the masters of westminster school, using disrespectful language towards the archbishop, and calling him "a little great man," a new information was filed against the bishop for not having disclosed these letters to a magistrate, that the writer might have been immediately brought to justice. of course he was found guilty; and when the deliberation arose about the punishment, thus spoke lord chief justice brampston:-- "the concealing of the libel doth by no means clear my lord bishop of lincoln, for there is a difference between a letter which concerns a private person and a public officer. if a libellous letter concern a private person, he that receives it may conceal it in his pocket or burn it; but if it concern a public person, he ought to reveal it to some public officer or magistrate. why should my lord of lincoln keep these letters by him, but to the end to publish them, and to have them at all times in readiness to be published? i agree in the proposed sentence, that, in addition to a fine of £ to the king, he do pay a fine of £ to the archbishop, seeing the offence is against so honorable a person, and there is not the least cause of any grievance or wrong that he hath done to my lord of lincoln. for his being degraded, i leave it to those of the ecclesiastical court to whom it doth belong. as to the pillory, i am very sorry and unwilling to give such a sentence upon any man of his calling and degree. but when i consider the quality of the person, and how much it doth aggravate the offence, i cannot tell how to spare him; for the consideration that should mitigate the punishment adds to the enormity of the offence." as no clerical crime had been committed for which degradation could be inflicted, and as it was thought not altogether decent that a bishop, wearing his lawn sleeves, his rochet, and his mitre, should stand on the pillory, to be pelted with brickbats and rotten eggs, the lord chief justice was overruled respecting this last suggestion, and the sentence was limited to the two fines, with perpetual imprisonment. the defendant was kept in durance under it till the meeting of the long parliament, when he was liberated; and, becoming an archbishop, he saw his persecutor take his place in the tower, while he himself was placed at the head of the church of england. now came the time when lord chief justice brampston himself was to tremble. the first grievance taken up was ship money; and both houses resolved that the tax was illegal, and that the judgment against hampden for refusing to pay it ought to be set aside. brampston was much alarmed when he saw strafford and laud arrested on a charge of high treason, and lord keeper finch obliged to fly beyond the seas. the next impeachment voted was against brampston himself and five of his brethren; but they were more leniently dealt with, for they were only charged with "high crimes and misdemeanors;" and happening to be in the house of lords when mr. waller brought up the impeachment, it was ordered "that the said judges for the present should enter into recognizances of £ , each to abide the censure of parliament." this being done, they enjoyed their liberty, and continued in the exercise of their judicial functions; but mr. justice berkeley, who had made himself particularly obnoxious by his indiscreet invectives against the puritans,[ ] was arrested while sitting on his tribunal in westminster hall, and committed a close prisoner to newgate. chief justice brampston tried to mitigate the indignation of the dominant powers by giving judgment in the case of _chambers_ v. _sir edward brunfield, mayor of london_, against the legality of ship money. to an action of trespass and false imprisonment, the defendant justified by his plea under "a writ for not paying of money assessed upon the plaintiff towards the finding of a ship." there was a demurrer to the plea, so that the legality of the writ came directly in issue. the counsel for the defendant rose to cite hampden's case and lord say's case, in which all their lordships had concurred, as being decisive in his favor; but brampston, c. j., said,-- "we cannot now hear this case argued. it hath been voted and resolved in the upper house of parliament and in the house of commons, _nullo contradicente_, that the said writ, and what was done by color thereof, was illegal. therefore, without further dispute thereof, the court gives judgment for the plaintiff."[ ] the commons were much pleased with this submissive conduct, but _pro forma_ they exhibited articles of impeachment against the chief justice. to the article founded on ship money he answered, "that at the conference of the judges he had given it as his opinion that the king could only impose the charge in case of necessity, and only during the continuance of that necessity." the impeachment was allowed to drop; and the chief justice seems to have coquetted a good deal with the parliamentary leaders, for, after the king had taken the field, he continued to sit in his court at westminster, and to act as an attendant to the small number of peers who assembled there, constituting the house of lords. but when a battle was expected, charles, being told that the chief justice of england was chief coroner, and, by virtue of his office, on view of the body of a rebel slain in battle, had authority to pronounce judgment of attainder upon him, so as to work corruption of blood and forfeiture of lands and goods, thought it would be very convenient to have such an officer in the camp, and summoned lord chief justice brampston to appear at head quarters in yorkshire. the lords were asked to give him leave of absence, to obey the king's summons, but they commanded him to attend them day by day at his peril. he therefore sent his two sons to make his excuse to the king. his majesty was highly incensed by his asking leave of the lords, and--considering another apology that he made, about the infirmity of his health and the difficulty of travelling in the disturbed state of the country, a mere pretence--by a _supersedeas_ under the great seal dismissed him from his office, and immediately appointed sir robert heath to be chief justice of england in his stead. brampston must now have given in his full adhesion to the parliamentary party, for in such favor was he with them, that, when the treaty of uxbridge was proceeding, they made it one of their conditions that he should be reappointed lord chief justice of the court of king's bench. having withdrawn entirely from public life, he spent the remainder of his days at his country house in essex. there he expired, on the d of september, , in the th year of his age. if courage and principle had been added to his very considerable talents and acquirements, he might have gained a great name in the national struggle which he witnessed; but, from his vacillation, he fell into contempt with both parties; and, although free from the imputation of serious crimes, there is no respect entertained for his memory. chapter viii. robert heath. we must now attend to sir robert heath, who was the last chief justice of charles i., and was appointed by him to pass judgment, not on the living, but on the dead. if we cannot defend all his proceedings, we must allow him the merit--which successful members of our profession can so seldom claim--of perfect consistency; for he started as a high prerogative lawyer, and a high prerogative lawyer he continued to the day of his death. he was of a respectable family of small fortune, in kent, and was born at etonbridge in that county. he received his early education at tonbridge school, and was sent from thence to st. john's college, cambridge. his course of study there is not known; but when he was transferred to the inner temple, we are told that he read law and history with the preconceived conviction that the king of england was an absolute sovereign; and so enthusiastic was he that he converted all he met with into arguments to support his theory. one most convenient doctrine solved many difficulties which would otherwise have perplexed him: he maintained that parliament had no power to curtail the essential prerogatives of the crown, and that all acts of parliament for such a purpose were _ultra vices_ and void. there is no absurdity in this doctrine, for a legislative assembly may have only a limited power, like the congress of the united states of america; and it was by no means so startling then as now, when the omnipotence of parliament has passed into a maxim. he had no respect whatever for the house of commons or any of its privileges, being of opinion that it had been called into existence by the crown only to assist in raising the revenue, and that, if it refused necessary supplies, the king, as _pater patriæ_, must provide for the defence of the realm in the same manner as before it had existence. he himself several times refused a seat in that assembly, which he said was "only fit for a pitiful puritan or a pretending patriot;" and he expressed a resolution to get on in his profession without beginning, as many of his brethren did, by herding with the seditious, and trying to undermine the powers which for the public good the crown had immemorially exercised and inalienably possessed. to enable him to defend these with proper skill and effect, he was constantly perusing the old records; and, from the conquest downwards, they were as familiar to him as the cases in the last number of the periodical reports are to a modern practitioner. upon all questions of prerogative law which could arise he was complete master of all the authorities to be cited for the crown, and of the answers to be given to all that could be cited against him. as he would neither go into parliament nor make a splash in westminster hall in the "sedition line," his friends were apprehensive that his great acquirements as a lawyer never would be known; but it happened that, in the year , he was appointed "reader" for the inner temple, and he delivered a series of lectures, explaining his views on constitutional subjects, which forever established his reputation. on the first vacancy which afterwards occurred in the office of solicitor general, he was appointed to fill it; and sir thomas coventry, the attorney general, expressed high satisfaction at having him for a colleague. very important proceedings soon after followed, upon the impeachment of lord bacon and the punishment of the monopolists; but, as these were all in parliament, he made no conspicuous figure during the remainder of the reign of james i. soon after the commencement of the reign of charles i., he was promoted to the office of attorney general; and then, upon various important occasions, he delivered arguments in support of the unlimited power of the crown to imprison and to impose taxes, which cannot now be read without admiration of the learning and ingenuity which they display. the first of these was when sir thomas darnel and his patriotic associates were brought by _habeas corpus_ before the court of king's bench, having been committed in reality for refusing to contribute to the forced loan, but upon a warrant by the king and council which did not specify any offence. i have already mentioned the speeches of their counsel.[ ] "to these pleadings for liberty," says hallam, "heath, the attorney general, replied in a speech of considerable ability, full of those high principles of prerogative which, trampling as it were on all statute and precedent, seemed to tell the judges that they were placed there to obey rather than to determine." "this commitment," he said, "is not in a legal and ordinary way, but by the special command of our lord the king, which implies not only the fact done, but so extraordinarily done, that it is notoriously his majesty's immediate act, and he wills that it should be so. shall we make inquiries whether his commands are lawful? who shall call in question the justice of the king's actions? is he to be called upon to give an account of them?" after arguing very confidently on the legal maxim that "the king can do no wrong,"[ ] the constitutional interpretation of which had not yet been settled, he goes on to show how _de facto_ the power of imprisonment had recently been exercised by the detention in custody, for years, of popish and other state prisoners, without any question or doubt being raised. "some," he observed, "there are in the tower who were put in it when very young: should they bring a _habeas corpus_, would the court deliver them?" he then dwelt at great length upon the resolution of the judges in the th of elizabeth in favor of a general commitment by the king, and went over all the precedents and statutes cited on the other side, contending that they were either inapplicable or contrary to law. he carried the court with him, and the prisoners were remanded without any considerable public scandal being then created. during the stormy session in which the "petition of right" was passed, heath, not being a member of the house of commons, had very little trouble; but once, while it was pending, he was heard against it as counsel for the king before a joint committee of lords and commons. upon this occasion he occupied two whole days in pouring forth his learning to prove that the proposed measure was an infringement of the ancient, essential, and inalienable prerogatives of the crown. he was patiently listened to, but he made no impression on lords or commons; and the king, after receiving an assurance from the judges that they would effectually do away with the statute when it came before them for interpretation, was obliged to go through the form of giving the royal assent to it. as soon as the parliament was dissolved, heath was called into full activity; and he now carried every thing his own way, for the extent of the royal prerogative was to be declared by the court of king's bench and the star chamber. sir john eliot, stroud, selden, and the other leaders of the country party who had been the most active in carrying the "petition of right," were immediately thrown into prison, and the attorney general having assembled the judges, they were as good as their word, by declaring that they had cognizance of all that happened in parliament, and that they had a right to punish whatsoever was done there by parliament men in an unparliamentary manner. the imprisoned patriots having sued out writs of _habeas corpus_, it appeared that they were detained under warrants signed by the king, "for notable contempts committed against ourself and our government, and for stirring up sedition against us." their counsel argued that a commitment by the king is invalid, as he must act by responsible officers; and that warrants in this general form were in direct violation of the "petition of right," so recently become law. but heath still boldly argued for the unimpaired power of arbitrary imprisonment, pretending that the "petition of right" was not a binding statute. "a petition in parliament," said he, "is no law, yet it is for the honor and dignity of the king to observe it faithfully; but it is the duty of the people not to stretch beyond the words and intention of the king, and no other construction can be made of the 'petition' than that it is a confirmation of the ancient rights and liberties of the subject. so that now the case remains in the same quality and degree as it was before the 'petition.'" he proceeded to turn into ridicule the whole proceedings of the late parliament, and he again went over the bead-roll of his precedents to prove that one committed by command of the king or privy council is not bailable. the prisoners were remanded to custody. in answer to the _information_, it was pleaded that a court of common law had no jurisdiction to take cognizance of speeches made in the house of commons; that the judges had often declared themselves incompetent to give an opinion upon such subjects; that the words imputed to sir john eliot were an accusation against the ministers of the crown, which the representatives of the people had a right to prefer; that no one would venture to complain of grievances in parliament if he should be subjected to punishment at the discretion of an inferior tribunal; that the alleged precedents were mere acts of power which no attempt had hitherto been made to sanction; and that, although part of the supposed offences had occurred immediately before the dissolution, so that they could not have been punished by the last parliament, they might be punished in a future parliament. but _heath, a. g._, replied that the king was not bound to wait for another parliament; and, moreover, that the house of commons was not a court of justice, nor had any power to proceed criminally, except by imprisoning its own members. he admitted that the judges had sometimes declined to give their judgment upon matters of privilege; but contended that such cases had happened during the session of parliament, and that it did not follow that an offence committed in the house might not be questioned after a dissolution. the judges unanimously held that, although the alleged offences had been committed in parliament, the defendants were bound to answer in the court of king's bench, in which all offences against the crown were cognizable. the parties refusing to put in any other plea, they were convicted, and the attorney general praying judgment, they were sentenced to pay heavy fines, and to be imprisoned during the king's pleasure. heath remained attorney general two years longer. the only difficulty which the government now had was to raise money without calling a parliament; and he did his best to surmount it. by his advice, a new tax was laid on cards, and all who refused to pay it he mercilessly prosecuted in the court of exchequer, where his will was law. all monopolies had been put down at the conclusion of the last reign, with the exception of new inventions. under pretence of some novelty, he granted patents, vested in particular individuals or companies the exclusive right of dealing in soap, leather, salt, linen rags, and various other commodities, although, of £ , thereby levied on the people, scarcely £ came into the royal coffers. his grand expedient was to compel all who had a landed estate of £ a year to submit to knighthood, and to pay a heavy fee; or, on refusal, to pay a heavy fine. this caused a tremendous outcry, and was at first resisted; but the question being brought before the court of exchequer, he delivered an argument in support of the claim, in which he traced knighthood from the ancient germans down to the reigns of the stuarts, showing that the prince had always the right of conferring it upon all who held of him _in capite_--receiving a reasonable compliment in return. in this instance, mr. attorney not only had the decision of the court, but the law on his side. blackstone says, "the prerogative of compelling the king's vassals to be knighted, or to pay a fine, was expressly recognized in parliament by the statute _de militibus_, ed. ii., but yet was the occasion of heavy murmurs when exerted by charles i., among whose many misfortunes it was, that neither himself nor his people seemed able to distinguish between the arbitrary stretch and the legal exertion of prerogative."[ ] all these expedients for filling the exchequer proving unproductive, the last hopes of despotism rested upon noy, who, having been a patriot, was eager to be the slave of the court, and proposed his ship money. if this should be supported by the judges, and endured by the people, parliaments for ever after would have been unnecessary. heath was willing enough to defend it; but the inventor was unwilling to share the glory or the profit of it with another. luckily, at that very time, a vacancy occurred in the office of chief justice of the common pleas; and there being an extreme eagerness to get rid of heath, notwithstanding his very zealous services to the crown, he was "put upon the cushion," and noy succeeded him as attorney general. to qualify him to be a judge, it was necessary that he should first become a serjeant; and, according to ancient custom, he distributed rings, choosing a motto which indicated his intention still to put the king above the law--"_lex regis, vis legis_." on the th of october, , he came in his parti-colored robes to the common pleas, and performed his ceremonies as serjeant, and the same day kept his feast in serjeants' inn; and afterwards, on the th of october, he was sworn in chief justice. in the four years during which he held this office, no case of public interest occurred in his own court; but he took an active part in the star chamber, and, having prosecuted the recorder of salisbury for breaking a painted window without the bishop's consent, he now sentenced him for the offence. the grand scheme of ship money, which had been long in preparation, was ready to be brought forward, when, to the astonishment of the world, heath was removed from his office. it has been said that the government was afraid of his opinion of ship money, and wished to prefer finch,--the most profligate of men,--on whom they could entirely rely. the truth seems to be, that he continued to enjoy the favor and confidence of the government, but that a charge had been brought against him of taking bribes, which was so strongly supported by evidence that it could not be overlooked, although no parliament was sitting, or ever likely to sit, and that the most discreet proceeding, even for himself, was to remove him quietly from his office. the removal of judges had, under the stuarts, become so common, that no great sensation was created by a new instance of it, and people merely supposed that some secret displeasure had been given to the king. heath presented a petition to the king, setting forth his services as attorney general in supporting the royal right to imprison and to tax the subject, as well as the good will he had manifested while he sat on the bench, and expressing a hope that, as he had been severely punished for his fault, he might not be utterly ruined, but might be permitted to practise at the bar. to this the king, by advice of the privy council, consented, on condition that he should be put at the bottom of the list of serjeants, and should not plead against the crown in the star chamber. accordingly, he took his place at the bar of the court of common pleas, as junior, where he had presided as chief, and speedily got into considerable business. he very soon again insinuated himself into the favor of the government, and assisted sir john banks, the attorney general, in state prosecutions. he first addressed the jury for the crown in the famous case of thomas harrison, indicted for insulting mr. justice hutton in open court; leaving the attorney general to sum up the evidence. not having been on the bench when the judges gave the extrajudicial opinion in favor of ship money, nor when hampden's trial came on, he escaped impeachment at the meeting of the long parliament; and on the removal of those who were impeached, he was made a puisne judge of the court of king's bench. when hostilities were about to commence, he happened to be judge of assize at york, where the king lay. he always protested that he was innocent of any plot to make himself chief justice of the king's bench; yet, knowing that, from bodily infirmity and lukewarmness in the royal cause, brampston would not come to york when summoned by the king, there is strong reason to suspect that he suggested the propriety of this summons, on the pretence that the chief justice of england might, as chief coroner, declare an attainder of rebels slain in battle, which would subject their lands and goods to forfeiture. brampston was ordered to come to york, and not making his appearance, he was removed from his office; and sir robert heath was created chief justice of england, that he might attaint the slaughtered rebels. sir john brampston, the autobiographer, son of the judge whom heath superseded, says, "when sir robert heath had that place, that opinion vanished, and nothing of that nature was ever put in practice." but in the autumn of the year , the royalists having gained an ascendency in the west of england, a scheme was formed to outlaw, for high treason, the leaders on the parliament side--as well those who were directing military operations in the field, as the non-combatants who were conducting the government at westminster. a commission passed the great seal, at oxford, directed to lord chief justice heath and three other judges who had taken the king's side, to hold a court of oyer and terminer at salisbury. accordingly, they took their seats on the bench, and swore in a grand jury, whom heath addressed, explaining the law of high treason, showing that flagrant overt acts had been committed by conspiring the king's death and levying war against him, and proving by authorities that all who aided and assisted by furnishing supplies, or giving orders or advice to the rebels, were as guilty as those who fought against his majesty with deadly weapons in their hands. bills of indictment were then preferred against the earls of northumberland, pembroke, and salisbury, and divers members of the house of commons. the grand jury, however,--probably without having read grotius and the writers on public law, who say that when there is a civil war in a country the opposite parties must treat each other as if they were belligerents belonging to two independent nations, but actuated by a sense of the injustice and impolicy of treating as common malefactors those who, seeking to reform abuses and vindicate the liberties of their fellow-citizens, were commanding armies and enacting laws,--returned all the bills _ignoramus_; and there could neither be any trial nor process of outlawry. this rash attempt only served to produce irritation, and to render the parliamentarians more suspicious and revengeful when negotiations were afterwards opened which might have led to a satisfactory accommodation. in the summer of the following year, chief justice heath held assizes at exeter, and there actually obtained the conviction of captain turpine, a parliamentary officer, who had been taken in arms against the king, and was produced as a prisoner at the bar. the sheriff appears to have refused to carry the sentence into execution; but the unfortunate gentleman was hanged by sir john berkeley, governor of exeter. the parliament, having heard of their partisan being thus put to death in cold blood, ordered that the judges who condemned him might be impeached of high treason; but they were afterwards satisfied with passing an ordinance to remove heath, and his brethren who had sat with him on this occasion, from their judicial offices, and to disable them from acting as judges in all time to come. sir robert heath never ventured to take his seat as chief justice of the court of king's bench at westminster; but, after travelling about for some time with the king, fixed himself at oxford, where he was made a doctor of the civil law, and attended as a judge when charles's parliament was held there. when oxford was at last obliged to surrender, and the royalists could no longer make head in any part of england, heath found it necessary to fly for safety to the continent. the parliamentary leaders said that they would not have molested him if he had confined himself to the discharge of his judicial duties; or even if, like lord keeper littleton and other lawyers, he had carried arms for the king; but as, contrary to the law of nations, he had proceeded against several of those who bore a commission which the parliament had granted to them in the king's name, they were determined to make an example of him. therefore, when an ordinance was passed, granting an indemnity to the royalists who submitted, he was excepted from it by name. after suffering great privations, he died at caen, in normandy, in the month of august, . he had, from his professional gains, purchased a large landed estate, which was sequestrated by the parliament, but afterwards was restored by charles ii. to his son. he had never tried to make his peace with the dominant party by any concession, and he declared that "he would rather suffer all the ills of exile than submit to the rule of those who had first fought their sovereign in the field, and then had murdered him on the scaffold." with the exception of his bribery, which was never properly inquired into, and does not seem to have injured him much in the opinion of his contemporaries, no grievous stain is attached to his memory; and we must feel respect for the constancy with which he adhered to his political principles, although we cannot defend them. chapter ix. robert foster. at the restoration of charles ii. it was considered necessary to sweep away the whole of the judges from westminster hall, although, generally speaking, they were very learned and respectable, and they had administered justice very impartially and satisfactorily.[ ] immense difficulty was found in replacing them. clarendon was sincerely desirous to select the fittest men that could be found, but from his long exile he was himself entirely unacquainted with the state of the legal profession, and, upon making inquiries, hardly any could be pointed out, whose political principles, juridical acquirements, past conduct, and present position entitled them to high preferment. the most eminent barristers on the royalist side had retired from practice when the civil war began, and the new generation which had sprung up had taken an oath to be faithful to the commonwealth. one individual was discovered--sir orlando bridgman--eminent both for law and for loyalty. early distinguished as a rising advocate, he had sacrificed his profits that he might assist the royal cause by carrying arms; and, refusing to profess allegiance to those whom he considered rebels, he had spent years in seclusion,--still devoting himself to professional studies, in which he took the highest delight. at first, however, it was thought that he could not properly be placed in a higher judicial office than that of chief baron of the exchequer; and the chiefships of the king's bench and common pleas were allowed to remain vacant some months, _puisnies_ being appointed in each court to carry on the routine business. at last a chief justice of england was announced--sir robert foster; and his obscurity testified the perplexity into which the government had been thrown in making a decent choice. he was one of the very few survivors of the old school of lawyers, which had flourished before the troubles began; he had been called to the degree of serjeant at law so long ago as the th of may, , at a time when charles i., with strafford for his minister, was ruling with absolute sway, was imposing taxes by his own authority, was changing the law by proclamation, and hoped never again to be molested by parliaments. this system was condemned and opposed by the most eminent men at the english bar, but was applauded and supported by some who conscientiously thought that all popular institutions were mischievous, and by more who thought that court favor gave them the best chance of rising in the world. foster is supposed to have defended ship money, the cruel sentences of the star chamber, the billeting of soldiers to live at free quarters, and other flagrant abuses, as well from a sincere love of despotism as from a desire to recommend himself to those in power.[ ] at the time when tyranny had reached its culminating point, he was appointed a puisne judge of the court of common pleas. luckily for him, hampden's case had been decided before his appointment, and he was not impeached by the long parliament. when the civil war broke out, he followed the king; and afterwards assisted in attempting to hold a court of common pleas at oxford, but sat alone, and his tribunal was without advocates or suitors. an ordinance passed the house of commons for removing him from his office, and on account of his excessive zeal in the royal cause, he was obliged to compound for his estate by paying a very large fine. after the king's death, he continued in retirement till the restoration. he is said to have had a small chamber in the temple, and like sir orlando bridgman and sir jeffery pelman, to have practised as a chamber counsel, chiefly addicting himself to conveyancing. the first act of the government of charles ii. was to reinstate foster in his old office. there was a strong desire to reward his constancy with fresh honors; but he was thought unfit to be raised higher, and the office of chief justice of the king's bench could not be satisfactorily filled up. only six common law judges had been appointed when the trials of the regicides came on. foster, being one of them, distinguished himself for his zeal; and when they were over, all scruples as to his fitness having vanished, he, who a few months before, shut up in his chamber that he might escape the notice of the roundheads, never expected any thing better than to receive a broad piece for preparing a conveyance according to the recently invented expedient of "lease and release," was constituted the highest criminal judge in the kingdom. he presided in the court of king's bench for two years. being a deep black letter lawyer, he satisfactorily disposed of the private cases which came before him, although he was much perplexed by the improved rules of practice introduced while he was in retirement, and he was disposed to sneer at the decisions of chief justice rolle, a man in all respects much superior to himself. in state prosecutions he showed himself as intemperate and as arbitrary as any of the judges who had been impeached at the meeting of the long parliament. to him chiefly is to be imputed the disgraceful execution as a traitor, of one who had disapproved of the late king's trial; who was included in the present king's promise of indemnity from breda;[ ] in whose favor a petition had been presented by the convention parliament; who was supposed to be expressly pardoned by the answer to that petition;[ ] but who had incurred the inextinguishable hatred of the cavaliers by the part he had taken in bringing about the conviction of the earl of strafford. sir henry vane the younger,[ ] after lying two years in prison, during which the shame of putting him to death was too strong to be overcome, was at last arraigned for high treason at the king's bench bar. as he had actually tried to save the life of charles i., the treason charged upon him was for conspiring the death of charles ii., whose life he would have been equally willing to defend. the indictment alleged this overt act, "that he did take upon him the government of the forces of this nation by sea and land, and appointed colonels, captains, and officers." the crown lawyers admitted that the prisoner had not meditated any attempt upon the natural life of charles ii., but insisted that, by acting under the authority of the commonwealth, he had assisted in preventing the true heir of the monarchy from obtaining possession of the government, and thereby, in point of law, had conspired his death, and had committed high treason. unassisted by counsel, and browbeaten by lord chief justice foster, he made a gallant defence; and besides pointing out the bad faith of the proceeding, after the promises of indemnity and pardon held out to him, contended that, in point of law, he was not guilty, on the ground that charles ii. had never been in possession of the government as king during any part of the period in question: that the supreme power of the state was then vested in the parliament, whose orders he had obeyed; that he was in the same relation to the exiled heir as if there had been another king upon the throne; and that the statute of henry vii., which was only declaratory of the common law and of common sense, expressly provided that no one should ever be called in question for obeying, or defending by force of arms, a king _de facto_, although he had usurped the throne. he concluded by observing that the whole english nation might be included in the impeachment. _foster, c. j._--"had there been another king on the throne, though a usurper, you might have been exempted by the statute from the penalties of treason. but the authority you recognized was called by the rebels either 'commonwealth' or 'protector,' and the statute takes no notice of any such names or things. from the moment that the martyred sovereign expired, our lord the king that now is must be considered as entitled to our allegiance, and the law declares that he has ever since occupied his ancestral throne. therefore, obedience to any usurped authority was treason to him. you talk of the sovereign power of parliament, but the law knows of no sovereign power except the power of our sovereign lord the king. with respect to the number against whom the law shall be put in force, that must depend upon his majesty's clemency and sense of justice. to those who truly repent he is merciful; but the punishment of those who repent not is a duty we owe both to god and to our fellow-men." a verdict of guilty being returned, the usual sentence was pronounced; but the king, out of regard to his own reputation, if not to the dictates of justice and mercy, was very reluctant to sanction the execution of it, till chief justice foster, going the following day to hampton court to give him an account of the trial, represented the line of defence taken by the prisoner as inconsistent with the principles of monarchical government, and said that the supposed promises of pardon were by no means binding, "for god, though ofttimes promising mercy, yet intends his mercy only for the penitent." the king, thus wrought on, notwithstanding his engagement to the contrary, signed the death-warrant, and vane was beheaded on tower hill, saying with his last breath, "i value my life less in a good cause than the king does his promise." mr. fox, and other historians, consider this execution "a gross instance of tyranny," but have allowed chief justice foster, who is mainly responsible for it, to escape without censure. the arbitrary disposition of this chief justice was strongly manifested soon after, when john crook, and several other very loyal quakers, were brought before him at the old bailey for refusing to take the oath of allegiance. _foster, c. j._--"john crook, when did you take the oath of allegiance?" _crook._--"answering this question in the negative is to accuse myself; which you ought not to put me upon. '_nemo debet seipsum prodere._' i am an englishman, and i ought not to be taken, nor imprisoned, nor called in question, nor put to answer, but according to the law of the land." _foster, c. j._:--"you are here required to take the oath of allegiance, and when you have done that, you shall be heard." _crook._--"you that are judges on the bench ought to be my counsel, not my accusers." _foster, c. j._--"we are here to do justice, and are upon our oaths; and we are to tell you what is law, not you us. therefore, sirrah, you are too bold." _crook._--"_sirrah_ is not a word becoming a judge. if i speak loud, it is my zeal for the truth and for the name of the lord. mine innocency makes me bold." _foster, c. j._--"it is an evil zeal." _crook._--"no, i am bold in the name of the lord god almighty, the everlasting jehovah, to assert the truth and stand as a witness for it. let my accuser be brought forth." _foster, c. j._--"sirrah, you are to take the oath, and here we tender it you." _crook._--"let me be cleared of my imprisonment, and then i will answer to what is charged against me. i keep a conscience void of offence, both towards god and towards man." _foster, c. j._--"sirrah, leave your canting." _crook._--"is this canting, to speak the words of the scripture?" _foster, c. j._--"it is canting in your mouth, though they are st. paul's words. your first denial to take the oath shall be recorded; and on a second denial, you bear the penalties of a _præmunire_, which is the forfeiture of all your estate, if you have any, and imprisonment during life." _crook._--"i owe dutiful allegiance to the king, but cannot _swear_ without breaking my allegiance to the king of kings. we dare not break christ's commandments, who hath said, _swear not at all_; and the apostle james says, 'above all things, my brethren, _swear not_.'" crook, in his account of the trial, says, "the chief justice thereupon interrupting, called upon the executioner to stop my mouth, which he did accordingly with a dirty cloth and a gag." the other quakers following crook's example, they were all indicted for having a second time refused to take the oath of allegiance; and being found guilty, the court gave judgment against them of forfeiture, imprisonment for life, and moreover, that they were "out of the king's protection;" whereby they carried about with them _caput lupinum_, (a wolf's head,) and might be put to death by any one as noxious vermin. the last trial of importance at which chief justice foster presided was that of thomas tonge and others, charged with a plot to assassinate the king. general ludlow says that this was got up by the government to divert the nation from their ill humor, caused by the sale of dunkirk;[ ] the invention being, "that divers thousands of ill-affected persons were ready under his command to seize the tower and the city of london, then to march directly to whitehall, in order to kill the king and monk, with a resolution to give no quarter; and after that to declare for a commonwealth." the case was proved by the evidence of supposed accomplices, which was held to be sufficient without any corroboration. the chief justice seems to have been very infirm and exhausted; for thus he summed up,-- "my masters of the jury, i cannot speak loud to you; you understand this business, such as i think you have not had the like in your time; my speech will not give me leave to discourse of it. the witnesses may satisfy all honest men: it is clear that they all agreed to subvert the government, and to destroy his majesty. what can you have more. the prisoners are in themselves inconsiderable; they are only the outboughs; but if such fellows are not met withal, they are the fittest instruments to set up a jack straw and a wat tyler; therefore you must lop them off, as they will encourage others. i leave the evidence to you; go together." the prisoners being all found guilty, the chief justice thus passed sentence upon them,-- "you have committed the greatest crime against god, our king, and your country, and against every good body that is in this land; for that capital sin of high treason is a sin inexpiable, and, indeed, hath no equal sin as to this world. meddling with them that are given to change hath brought too much mischief already to this nation; and if you will commit the same sin, you must receive the same punishment, for happy is he who by other men's harms takes heed." they were all executed, protesting their innocence. the chief justice went a circuit after this trial, in the hope that country air would revive him. however, he became weaker and weaker, and, although much assisted by his brother judge, he with great difficulty got to the last assize town. from thence he travelled by slow stages to his house in london, where, after languishing for a few weeks, he expired, full of days, and little blamed for any part of his conduct as a judge, however reprehensible it may appear to us, trying it by a standard which he would have thought only fit to be proposed by rebels. chapter x. robert hyde. on the death of sir robert foster, lord clarendon thought that he might fairly do a job for an aged kinsman, of respectable, if not brilliant reputation; and he appointed sir robert hyde chief justice of the king's bench. they were cousins-german, being grandsons of lawrence hyde, of west hatch, in the county of wilts, and nephews of sir nicholas hyde, chief justice of the king's bench in the commencement of the reign of charles i. the hydes were the most distinguished race of the robe in the th century. robert's father was likewise a lawyer of renown, being attorney general to anne of denmark, queen of james i., and he had twelve sons, most of whom followed their father's profession. robert seems to have been a very quiet man, and to have got on by family interest and by plodding. although edward, the future chancellor, played such a distinguished part during the troubles,--first as a moderate patriot, and then as a liberal conservative,--robert, the future chief justice, was not in the house of commons, nor did he enlist under the banner of either party in the field. just before the civil war broke out, he was called to the degree of serjeant at law, and he continued obscurely to carry on his profession during all the vicissitudes of the twenty eventful years between and . at the restoration, he was made a puisne judge of the common pleas, and, acting under chief justice bridgman, he acquitted himself creditably. when he was installed chief justice of the king's bench, lord chancellor clarendon himself attended in court, and thus addressed him:-- "it's a sign the troubles have been long, that there are so few judges left, only yourself; and after so long suffering of the law and lawyers, the king thought fit to call men of the best reputation and learning, to renew the reverence due and used to the law and lawyers; and the king, as soon as the late chief justice was dead, full of days and of honors, did resolve on you as the ancientest judge left; and your education in this court gives you advantage here above others, as you are the son of an eminent lawyer as any in his days, whose felicity was to see twelve sons, and you one of the youngest a serjeant, and who left you enough, able to live without the help of an elder brother. for your integrity to the crown, you come to sit here. the king and the kingdom do expect great reformation from your activity. for this reason, the king, when i told him chief justice foster was dead, made choice of you. courage in a judge is necessary as in a general;[ ] therefore you must not want this to punish sturdy offenders. the genteel wickedness of duelling i beseech you inquire into; the carriers of challenges, and fighters, however they escape death, the fining and imprisoning of them will make them more dread this court than the day of judgment." _hyde, c. j._--"i had ever thought of the advice of the wise man, 'not to seek to be a judge, nor ask to sit in the seat of honor,' being conscious of my own defects and small learning. but, seeing his majesty's grace, i shall humbly submit, and serve him with my life, with all alacrity and duty. sins of infirmity i hope his majesty will pardon, and for wilful and corrupt dealings i shall not ask it. i attended in coke's time as a reporter here; and as he said when he was made chief justice i say now--'i will behave myself with all diligence and honesty.'" this chief justice was much celebrated in his day for checking the licentiousness of the press. a printer named john twyn, having printed a book containing passages which were said to reflect upon the king, was arraigned before him at the old bailey on an indictment for high treason. the prisoner being asked how he would be tried, said, "i desire to be tried in the presence of that god who is the searcher of all hearts, and the disposer of all things." _hyde, l. c. j._--"god almighty is present here, but you must be tried by him and your peers, that is, your country, or twelve honest men." _prisoner._--"i desire to be tried by god alone." _hyde, l. c. j._--"god almighty looks down, and beholds what we do here, and we shall answer severely if we do you any wrong. we are careful of our souls as you can be of yours. you must answer in the words of the law." _prisoner._--"by god and my country." it was proved clearly enough that he had printed the book, and some passages of it might have been considered libellous; but there was no other evidence against him, and he averred that he had unconsciously printed the book in the way of his trade. _hyde, l. c. j._--"there is here as much villany and slander as it is possible for devil or man to invent. to rob the king of the love of his subjects, is to destroy him in his person. you are here in the presence of almighty god, as you desired; and the best you can now do towards amends for your wickedness is by discovering the author of this villanous book. if not, you must not expect--and, indeed, god forbid--there should be any mercy shown you." _prisoner._--"i never knew the author of it." _hyde, l. c. j._--"then we must not trouble ourselves. you of the jury, there can be no doubt that publishing such a book as this is as high treason as can be committed, and my brothers will declare the same if you doubt." the jury having found a verdict of guilty,[ ] the usual sentence was pronounced by lord chief justice hyde, and the printer was drawn, hanged, and quartered accordingly. the next trials before his lordship, although the charge was not made capital, (as he said it might have been,) were equally discreditable to him. several booksellers were indicted for publishing a book which contained a simple and true account of the trial of the regicides, with their speeches and prayers. _hyde, l. c. j._--"to publish such a book is to fill all the king's subjects with the justification of that horrid murder. i will be bold to say no such horrid villany has been done upon the face of the earth since the crucifying of our savior. to print and publish this is sedition. he that prints a libel against me as sir robert hyde, and he that sets him at work, must answer it; much more when against the king and the state. _dying men's words_, indeed. if men are as villanous at their death as in their lives, may what they say be published as the words of dying men? god forbid! it is the king's great mercy that the charge is not for high treason." the defendants, being found guilty, were sentenced to be fined, to stand several hours in the pillory, and to be imprisoned for life. [in october, , chief justice hyde caused john keach to be indicted for libel, which indictment he proceeded forthwith to try, in a manner denounced by mr. dunning, in one of his speeches in the house of commons (dec. , ,) as "cruel, brutal, and illegal." keach had written a little book called the child's instructor; or a new and easy primer, in which were contained several things contrary to the doctrine and ceremonies of the church of england. keach taught that infants ought not to be baptized; that laymen may preach the gospel; that christ shall reign personally on the earth in the latter day, &c. he had no sooner received a few copies from london, where the book was printed, than a justice of the peace, who had heard of it, entered his house with a constable, seized several of the books, and bound keach over to answer for it at the next assizes at aylsbury. chief justice hyde presiding, keach was called to the bar, when the following dialogue ensued:-- _hyde._--did you write this book? (holding out one of the primers.)[ ] _keach._--i writ most of it. _hyde._--what have you to do to take other men's trades out of their hands? i believe you can preach as well as write books. thus it is to let you and such as you are have the scripture to wrest to your own destruction. you have made in your book a new creed. i have seen three creeds before, but i never saw a fourth till you made one. _keach._--i have not made a creed, but a confession of the christian faith. _hyde._--well, that is a creed, then. _keach._--your lordship said you had never seen but three creeds, but thousands of christians have made a confession of their faith. the chief justice having denounced several things contained in the book as contrary to the liturgy of the church of england, and so a breach of the test of uniformity-- _keach._--my lord, as to those things-- _hyde._--you shall not preach here, nor give the reasons of your damnable doctrine, to seduce and infect his majesty's subjects. these are not things for such as you to meddle with, and to pretend to write books of divinity; but i will try you for it before i sleep. he then directed an indictment to be drawn up, and thus addressed the grand jury:-- "gentlemen of the grand jury: i shall send you presently a bill against one that hath taken upon him to write a new primer for the instruction of your children. he is a base and dangerous fellow; and if this be suffered, children by learning of it will become such as he is; and therefore i hope you will do your duty." a long indictment having been found, in which divers passages from the book were set forth as damnable, seditious, wicked, and contrary to the statute in that case made and provided, keach was called upon to plead to it. he asked for a copy, and liberty to confer with counsel, and to put in his exceptions before pleading. but chief justice hyde compelled him to plead before he would give him a copy, and then would allow him only an hour's time to consider it, which, as not long enough to be of any benefit, keach declined to accept. the evidence was, that thirty copies of the book had been seized at keach's house by the justice and constable, and that keach on his examination before the justice had confessed himself the author, and that he had received from london about forty copies, of which he had dispersed about twelve. hyde then caused the passages contained in the indictment to be read, remarking on each to show that it was contrary to the book of common prayer. this done, the prisoner began to speak in his defence. _keach._--as to the doctrines-- _hyde._--you shall not speak here except to the matter of fact; that is to say, whether you writ this book or not.[ ] _keach._--i desire liberty to speak to the particulars of my indictment, and those things that have-- _hyde._--you shall not be suffered to give the reasons for your damnable doctrine here to seduce the king's subjects. _keach._--is my religion so bad that i may not be allowed to speak? _hyde._--i know your religion; you are a fifth monarchy man; and you can preach as well as write books; and you would preach here if i would let you; but i shall take such order as you shall do no more mischief.[ ] after some altercation between the judge and the prisoner as to the facts and the evidence, hyde summed up and charged the jury; but after an absence of several hours one of the officers came in with a message that they could not agree. _hyde._--but they must agree. _officer._--they desire to know whether one of them may not come and speak to your lordship about something whereof they are in doubt. _hyde._--yes, privately; (and then ordered one to come to him on the bench.) the officer then called one, and he was set upon the clerk's table, and the judge and he whispered together a great while. it was observed that the judge, having his hands upon his shoulders, would frequently shake him as he spoke to him. upon this person's returning, the whole jury soon came in, and by their foreman delivered a verdict of guilty in part. _clerk._--of what part? _foreman._--there is something contained in the indictment which is not in the book. _clerk._--what is that? _foreman._--in the indictment he is charged with these words: "when the thousand years shall be expired, then shall all the rest of the church be raised;" but in the book it is, "then shall the rest of the dead be raised." _clerk._--is he guilty of all the rest of the indictment, that sentence excepted? _one of the jury._--i cannot in conscience find him guilty, because the words in the indictment and the book do not agree. _hyde._--that is only through a mistake of the clerk's, and in that sentence only; and you may find him guilty of all, that sentence excepted; but why did you come in before you were agreed? _foreman._--we thought we had been agreed. _hyde._--you must go out again and agree; and as for you that say you cannot in conscience find him guilty, if you say so again, without giving reasons for it, i _shall take an order with you_.[ ] we shall find an explanation of this last threat (which soon produced a verdict in accordance with the wishes of the chief justice) in hale's pleas of the crown,[ ] where it is stated that while hyde was acting as a judge of _nisi prius_, he introduced the illegal practice of fining juries for not rendering verdicts satisfactory to him. "i have seen," says hale, "arbitrary practice still go from one thing to another. the fines set upon grand inquests began; then they set fines upon the petit jurors for not finding according to the direction of the court; then afterwards the judges of _nisi prius_ proceeded to fine jurors in civil causes if they gave not a verdict according to direction, even in points of fact. this was done by a judge of assize [justice hyde, at oxford, vaugh. ] in oxfordshire, and the fine estreated; but i, by advice of most of the judges of england, stayed process upon that fine. [hale was at this time chief baron of the court of exchequer.] the like was done by the same judge in a case of burglary. the fine was estreated into the exchequer; but by the like advice i stayed process; and in the case of wagstaff, [vaugh. ,] and other jurors fined at the old bayley for giving a verdict contrary to direction, by advice of all the judges of england, (only one dissenting,) it was ruled to be against law."][ ] in the fervor of loyalty which still prevailed, such doctrines were by no means unpopular; and while chief justice hyde was cried up as an eminent judge by the triumphant cavaliers, the dejected roundheads hardly ventured to whisper a complaint against him. to the great grief of the one party, and, no doubt, to the secret joy of the other, who interpreted his fate as a judgment, his career was suddenly cut short. on the st of may, , as he was placing himself on the bench to try a dissenter who had published a book recommending the "comprehension," that had been promised by the king's declaration from breda, while apparently in the enjoyment of perfect health, he dropped down dead. chapter xi. john kelynge. after the sudden death of sir robert hyde, lord chancellor clarendon was again thrown into distress by the difficulty of filling up the office of chief justice of the king's bench, and he allowed it to remain vacant seven months. only five years had elapsed since the restoration, and no loyal lawyer of eminence had sprung up. at last the chancellor thought he could not do better than promote sir john kelynge, then a _puisne_, to be the head of the court. the appointment was considered a very bad one; and some accounted for it by supposing that a liberal contribution had been made towards the expense of erecting "dunkirk house,"[ ] which was exciting the admiration and envy of the town; while others asserted that the collar of s. s.[ ] had been put around the neck of the new legal dignitary by the duchess of cleveland. i believe that judicial patronage had not yet been drawn into the vortex of venality, and that clarendon, left to the freedom of his own will, preferred him whom he considered the least ineligible candidate. but we cannot wonder at the suspicions which were generally entertained, for sir john kelynge's friends could only say in his favor that he was a "violent cavalier," and his enemies observed that "however fit he might have been to _charge_ the roundheads under prince rupert, he was very unfit to _charge_ a jury in westminster hall." i can find nothing of his origin, or of his career, prior to the restoration; and i am unable to say whether, like some loyal lawyers, he actually had carried arms for the king, or, like others, had continued obscurely to practise his profession in london. the first notice i find of him is by himself, in the account which he has left us of the conferences of the judges at serjeants' inn, preparatory to the trial of the regicides, when he says he attended that service as junior counsel for the crown. he might have been employed from a notion that he would be useful in solving the knotty points likely to arise,[ ] or, (what is quite as likely,) without any professional reputation, he might have got a brief by favor, in a case which was to draw the eyes of the whole world upon all engaged in it. when the trials came on, he was very busy and bustling, and eagerly improved every opportunity of bringing himself forward. before they were over, he took upon himself the degree of serjeant at law, and, to his unspeakable delight, he was actually intrusted with the task of conducting the prosecution against colonel hacker, who had commanded the guard during the king's trial and at his execution. he learnedly expounded to the jury that the treason consisted in "compassing and imagining the king's death," and that the overt acts charged of _condemning him_ and _executing him_ were only to be considered evidence of the evil intention. he then stated the facts which would be proved by the witnesses, and concluded by observing,-- "thus did he keep the king a prisoner, to bring him before that mock court of injustice; and was so highly trusted by all those miscreants who thirsted for the king's blood, that the bloody warrant was directed to him to see execution done. nay, gentlemen, he was on the scaffold, and had the axe in his hand." _hacker._--"my lords, to save your lordships trouble, i confess that i was upon the guard, and had a warrant to keep the king for his execution." (the original warrant being shown to him, he admitted it.) _kelynge._--"after you had that warrant brought to you, did you, by virtue of it, direct another warrant for the execution of the king, and take his sacred majesty's person from the custody of colonel tomlinson?" _hacker._--"no, sir." _kelynge._--"we shall prove it." colonel tomlinson was then examined, and detailed the circumstances of the execution, showing that colonel hacker had conducted the king to the scaffold under the original warrant--what had been taken for a fresh warrant being a letter written by him to cromwell, then engaged in prayer for the king's deliverance with general fairfax. _kelynge._--"we have other witnesses, but the prisoner hath confessed enough. we have proved that he had the king in custody, and that at the time of the execution he was there to manage it. what do you say for yourself?" _hacker._--"truly, my lord, i have no more to say for myself but that i was a soldier and under command. in obedience to those set over me i did act. my desire hath ever been for the welfare of my country." _l. c. baron._--"this is all you have to say for yourself?" _hacker._--"yes, my lord." _l. c. baron._--"then, colonel hacker, for that which you say for yourself that you did it by command, you must understand that no power on earth could authorize such a thing. either he is guilty of compassing the death of the king, or no man can be said to be guilty." of course he was convicted and executed. serjeant kelynge was soon after promoted to be a king's serjeant; and in that capacity took a prominent part in the trial of sir henry vane, who, not being concerned in the late king's death, was tried for what he had subsequently done in obedience to the parliament, then possessed of the supreme power of the state. to the plea that his acts could not be said to be against the peace of charles ii., who was then in exile, kelynge admitted that if another sovereign, although a usurper, had mounted the throne, the defence would have been sufficient; but urged that the throne must always be full, and that charles ii., in legal contemplation, occupied it while _de facto_ he was wandering in foreign lands, and ambassadors from all the states of europe were accredited to oliver, the lord protector. kelynge having suggested this reasoning, which was adopted by the court, and on which vane was executed as a traitor, he was, on the next vacancy, made a puisne judge of the king's bench. while kelynge was a puisne judge, he made up, by loyal zeal and subserviency, for his want of learning and sound sense; but, from a knowledge of his incompetency, there was a great reluctance to promote him on the death of lord chief justice hyde. sir matthew hale was pointed out as the fittest person to be placed at the head of the common law; but lord clarendon had not the liberality to raise to the highest dignity one who had sworn allegiance to the protector, and there being no better man whom he could select, who was free from the suspicion of republican taint, he fixed upon the "violent cavalier." luckily there were no speeches at his installation. on account of the dreadful plague which was then depopulating london, the courts were adjourned to oxford. "there kelynge, puisne judge, was made chief justice, and being sworn at the chancellor's lodging, came up privily and took his place in the logic school, where the court of king's bench sat. the business was only motions--to prevent any concourse of people. in london died the week before, of the plague, besides papists and quakers." the new chief justice even exceeded public expectation by the violent, fantastical, and ludicrous manner in which he comported himself. his vicious and foolish propensities broke out without any restraint, and, at a time when there was little disposition to question any who were clothed with authority, he drew down upon himself the contempt of the public and the censure of parliament. he was unspeakably proud of the collar which he wore as chief justice, this alone distinguishing him externally from the puisnies, a class on whom he now looked down very haughtily. in his own report of the resolutions of the judges prior to the trial of lord morley for murder, before the house of lords, he considers the following as most important,-- "we did all, _una voce_, resolve that we were to attend at the trial in our scarlet robes, and the chief judges in their collars of s. s.--_which i did accordingly_." there having been a tumult in an attempt by some apprentices to put down certain disorderly houses in moorfields, which were a great nuisance to the neighborhood, and cries that no such houses should be tolerated, chief justice kelynge, considering this "an _accroachment_ of royal authority," directed those concerned in it to be indicted for high treason; and the trial coming on before him at the old bailey, he thus laid down the law to the jury,-- "the prisoners are indicted for levying war against the king. by levying war is not only meant when a body is gathered together as in army, but if a company of people will go about any public reformation, this is high treason. these people do pretend their design was against brothels; now, for men to go about to pull down brothels, with a captain, and an ensign, and weapons,--if this thing be endured, _who is safe_? it is high treason because it doth betray the peace of the nation, and every subject is as much wronged as the king; for if every man may reform what he will, no man is safe; therefore the thing is of desperate consequence, and we must make this for a public example. there is reason we should be very cautious; we are but newly delivered from rebellion, and we know that that rebellion first began under the pretence of religion and the law; for the devil hath always this vizard upon it. we have great reason to be very wary that we fall not again into the same error. apprentices in future shall not go on in this manner. it is proved that beasely went as their captain with his sword, and flourished it over his head, and that messenger walked about moorfields with a green apron on the top of a pole. what was done by one was done by all; in high treason, all concerned are principals." so the prisoners were all convicted of high treason; and i am ashamed to say that all the judges concurred in the propriety of the conviction except lord chief baron hale, who, as might be expected, delivered his opinion that there was no treason in the case, and treated it merely as a misdemeanor. such a proceeding had not the palliation that it ruined a personal enemy, or crushed a rival party in the state, or brought great forfeitures into the exchequer; it was a mere fantastic trick played before high heaven to make the angels weep.[ ] when chief justice kelynge was upon the circuit, being without any check or restraint, he threw aside all regard to moderation and to decency. he compelled the grand jury of somersetshire to find a true bill contrary to their consciences--reproaching sir hugh wyndham, the foreman, as the head of a faction, and telling them "that they were all his servants, and that he would make the best in england stoop." some persons were indicted before him for attending a conventicle; and, although it was proved that they had assembled on the lord's day with bibles in their hands, _without prayer books_, they were acquitted. he thereupon fined the jury one hundred marks apiece, and imprisoned them till the fines were paid. again, on the trial of a man for murder, who was suspected of being a dissenter, and whom he had a great desire to hang, he fined and imprisoned all the jury because, contrary to his direction, they brought in a verdict of _manslaughter_.[ ] upon another occasion, (repeating a coarse jest of one whom he professed to hold in great abhorrence,) when he was committing a man in a very arbitrary manner, the famous declaration in magna charta being cited to him, that "no freeman shall be imprisoned except by the judgment of his peers, or the law of the land," the only answer given by my lord chief justice of england was to repeat, with a loud voice, cromwell's rhyme, "magna charta--magna f----a!!!" at last, the scandal was so great that complaints against him were brought by petition before the house of commons, and were referred to the grand committee of justice. after witnesses had been examined, and he himself had been heard in his defence, the committee reported the following resolutions:-- " . that the proceedings of the lord chief justice in the cases referred to us are innovations in the trial of men for their lives and liberties, and that he hath used an arbitrary and illegal power which is of dangerous consequence to the lives and liberties of the people of england. " . that in the place of judicature, the lord chief justice hath undervalued, vilified, and condemned magna charta, the great preserver of our lives, freedom, and property. " . that the lord chief justice be brought to trial, in order to condign punishment in such manner as the house shall judge most fit and requisite." the matter assuming this serious aspect, he petitioned to be heard at the bar of the house in his own defence. lord chief baron atkyns, who was then present, says, "he did it with that great humility and reverence, that those of his own profession and others were so far his advocates that the house desisted from any farther prosecution." his demeanor seems now to have been as abject as it had before been insolent, and he escaped punishment only by the generous intercession of lawyers whom he had been in the habit of browbeating in the king's bench. he was abundantly tame for the rest of his days; but he fell into utter contempt, and the business of the court was done by twisden, a very learned judge, and much respected, although very passionate. kelynge's collar of s. s. ceased to have any charms for him; he drooped and languished for some terms, and on the th of may, , he expired, to the great relief of all who had any regard for the due administration of justice. no interest can be felt respecting the place of his interment, his marriages, or his descendants. i ought to mention, among his other vanities, that he had the ambition to be an author; and he compiled a folio volume of decisions in criminal cases, which are of no value whatever except to make us laugh at some of the silly egotisms with which they abound.[ ] chapter xii. william scroggs. it was positively asserted in his lifetime, and it has been often repeated since, that scroggs was the son of a butcher, and that he was so cruel as a judge because he had been himself accustomed to kill calves and lambs when he was a boy. yet it is quite certain that this solution of scroggs's taste for blood is a pure fiction, for he was born and bred a gentleman. his father was a squire, of respectable family and good estate, in oxfordshire. young scroggs was several years at a grammar school, and he took a degree with some credit in the university of oxford, having studied first at oriel, and then at pembroke college. he was intended for the church, and, in quiet times, might have died respected as a painstaking curate, or as archbishop of canterbury. but, the civil war breaking out while he was still under age, he enlisted in the king's cause, and afterwards commanded a troop of horse, which did good service in several severe skirmishes. unfortunately, his morals did not escape the taint which distinguished both men and officers on the cavalier side. the dissolute habits he had contracted unfitted him entirely for the ecclesiastical profession, and he was advised to try his luck in the law. he had a quick conception, a bold manner, and an enterprising mind; and prophecies were uttered of his great success if he should exchange the cuirass for the long robe. he was entered as a student at gray's inn, and he showed that he was capable, by short fits, of keen application; but his love of profligacy and of expense still continued, and both his health and his finances suffered accordingly. however, he contrived to be called to the bar; and some of his pot companions being attorneys, they occasionally employed him in causes likely to be won by a loud voice and an unscrupulous appeal to the prejudices of the jury. he practised in the king's bench, where, although he now and then made a splashy speech, his business by no means increased in the same ratio as his debts. "he was," says roger north, "a great voluptuary, his debaucheries egregious, and his life loose; which made the lord chief justice hale detest him." thinking that he might have a better chance in the court of common pleas, where the men in business were very old and dull, he took the degree of the coif, and he was soon after made a king's serjeant. still, however, he kept company with ken, guy, and the high-court rakes, and his clients could not depend upon him. his visage being comely, and his speech witty and bold, he was a favorite with juries, and sometimes carried off wonderful verdicts; but, when he ought to have been consulting his chamber in serjeants' inn, he was in a tavern or gaming house, or worse place, near st. james's palace. thus his gains were unsteady, and the fees which he received were speedily spent in dissipation, so that he fell into a state of great pecuniary embarrassment. on one occasion, he was arrested by a creditor in westminster hall as he was about to enter his coach. the process being out of the king's bench, he complained to that court of a breach of his privileges as a serjeant; but lord chief justice hale refused to discharge him. meanwhile, serjeant scroggs was in high favor with lord shaftesbury's enemies, who, on the commitment of that turbulent leader to the tower for breach of privilege, had gained a temporary advantage over him. through the agency of chiffinch, superintendent of the secret intrigues of every description which were carried on at whitehall,[ ] he had been introduced to charles ii., and the merry monarch took pleasure in his licentious conversation. what was of more importance to his advancement, he was recommended to the earl of danby, the reigning prime minister, as a man that might be useful to the government if he were made a judge. in consequence, on the d of october, , he was knighted, and sworn in a justice of the court of common pleas. sir allan broderick, in a letter to "the honorable lawrence hyde," written a few days after, says, "sir william scroggs, on monday, being admitted judge, made so excellent a speech that my lord northampton, then present, went from westminster to whitehall immediately, and told the king he had, since his happy restoration, caused many hundred sermons to be printed, and which together taught not the people half so much loyalty; therefore, as a sermon, desired his command to have it printed and published in all the market towns in england." mr. justice scroggs gave himself little trouble with law business that came before the court; but, in addressing grand juries on the circuit, he was loud and eloquent against the proceedings of the "country party," and he still continued to be frequently in the circle at whitehall, where he took opportunities not only to celebrate his own zeal, but to sneer at sir john raynsford, the chief justice of the king's bench, whose place he was desirous to fill. chiffinch, and his other patrons of the back-stairs, were in the habit of sounding his praise, and asserting that he was the only man who, as head of the king's bench, could effectually cope with the manoeuvres of shaftesbury. this unconquerable intriguer, having been discharged from custody, was again plotting against the government, was preparing to set up the legitimacy of monmouth, and was asserting that the duke of york should be set aside from the succession of the throne and prosecuted as a popish recusant. the immediate cause of raynsford's removal was the desire of the government to have a chief justice of the king's bench on whose vigor and subserviency reliance could be placed, to counteract the apprehended machinations of shaftesbury. on the st of may, , sir william scroggs was sworn into the office, and he remained in it for a period of three years. how he conducted himself in civil suits is never once mentioned, for the attention of mankind was entirely absorbed by his scandalous misbehavior as a criminal judge. he is looked to with more loathing, if not with more indignation, than jeffreys, for in his abominable cruelties he was the sordid tool of others, and in his subsequent career he had not the feeble excuse of gratifying his own passions or advancing his own interests. although quite indifferent with regard to religion, and ready to have declared himself a papist, or a puritan, or a mahometan, according to the prompting of his superiors, finding that the policy of the government was to outbid shaftesbury in zeal for protestantism, he professed an implicit belief in all the wonders revealed by titus oates, in the murder of sir edmondbury godfrey by papists, and in the absolute necessity for cutting off without pity all those who were engaged in the nefarious design to assassinate the king, to burn london, and to extinguish the flames with the blood of protestants. he thought himself to be in the singularly felicitous situation of pleasing the government while he received shouts of applause from the mob. burnet, speaking of his appointment, says, "it was a melancholy thing to see so bad, so ignorant, and so poor a man raised up to that great post. yet he, now seeing how the stream ran, went into it with so much zeal and heartiness that he was become the favorite of the people."[ ] the first of the popish plot judicial murders--which are more disgraceful to england than the massacre of st. bartholomew's is to france--was that of stayly, the roman catholic banker. being tried at the bar of the court of king's bench, scroggs, according to the old fashion, which had gone out during the commonwealth, repeatedly put questions to the prisoner, attempting to intimidate him, or to involve him in contradictions, or to elicit from him some indiscreet admission of facts. a witness having stated that "he had often heard the prisoner say he would lose his blood for the king, and speak as loyally as man could speak," scroggs exclaimed, "_that is, when he spoke to a protestant!_" in summing up, having run himself out of breath by the violence with which he declaimed against the pope and the jesuits, he thus apologised to the jury:-- "excuse me, gentlemen, if i am a little warm, when perils are so many, murders so secret. when things are transacted so closely, and our king is in great danger, and religion is at stake, i may be excused for being a little warm. you may think it better, gentlemen, to be warm here than in smithfield. discharge your consciences as you ought to do. if guilty, let the prisoner take the reward of his crime, for perchance it may be a terror to the rest. i hope i shall never go to that heaven where men are made saints for killing kings." the verdict of _guilty_ being recorded, _scroggs, c. j._, said, "now, you may die a roman catholic; and, when you come to die, i doubt you will be found a priest too. the matter, manner, and all the circumstances of the case, make it plain; you may harden your heart as much as you will, and lift up your eyes, but you seem, instead of being sorrowful, to be obstinate. between god and your conscience be it; i have nothing to do with that; my duty is only to pronounce judgment upon you according to law--you shall be drawn to the place of execution, where you shall be hanged by the neck, cut down alive," &c. &c. the unhappy convict's friends were allowed to give him decent burial;[ ] but, because they said a mass for his soul, his body was, by order of lord chief justice scroggs, taken out of the grave, his quarters were fixed upon the gates of the city, and his head, at the top of a pole, was set on london bridge. so proud was scroggs of this exploit, that he had an account of it written, for which he granted an imprimatur, signed with his own name. i must not run the risk of disgusting my readers by a detailed account of scroggs's enormities on the trials of coleman, ireland, whitebeard, langhord, and the other victims whom he sacrificed to the popular fury under pretence that they were implicated in the popish plot. whether sitting in his own court at westminster, or at the old bailey in the city of london, as long as he believed that government favored the prosecutions, by a display of all the unworthy arts of cajoling and intimidation he secured convictions. a modern historian, himself a roman catholic priest, says, with temper and discrimination, "the chief justice scroggs, a lawyer of profligate habits and inferior acquirements, acted the part of prosecutor rather than of judge. to the informers he behaved with kindness, even with deference, suggesting to them explanations, excusing their contradictions, and repelling the imputation on their characters; but the prisoners were repeatedly interrupted and insulted; their witnesses were browbeaten from the bench, and their condemnation was generally hailed with acclamations, which the court rather encouraged than repressed." meanwhile the chief justice went the circuit; and although the popish plot did not extend into the provinces, it may be curious to see how he demeaned himself there. andrew bromwich being tried before him capitally, for having administered the sacrament of the lord's supper according to the rites of the church of rome, thus the dialogue between them proceeded:-- _prisoner._--"i desire your lordship will take notice of one thing, that i have taken the oaths of allegiance and supremacy, and have not refused any thing which might testify my loyalty." _scroggs, c. j._--"that will not serve your turn; you priests have many tricks. what is that to giving a woman the sacrament several times?" _prisoner._--"my lord, it was no sacrament unless i be a priest, of which there is no proof." _scroggs._--"what! you expect we should prove you a priest by witnesses who saw you ordained? we know too much of your religion; no one gives the sacrament in a wafer, except he be a popish priest: you gave that woman the sacrament in a wafer: _ergo_, you are a popish priest." thus he summed up: "gentlemen of the jury, i leave it upon your consciences whether you will let priests escape, who are the very pests of church and state; you had better be rid of one priest than three felons; so, gentlemen, i leave it to you." after a verdict of guilty, the chief justice said, "gentlemen, you have found a good verdict, and if i had been one of you i should have found the same myself." he then pronounced sentence of death, describing what seemed to be his own notion of the divine being, while he imputed this blasphemy to the prisoner: "you act as if god almighty were some omnipotent mischief, that delighted and would be served with the sacrifice of human blood." scroggs was more and more eager, and "ranted on that side more impetuously," when he observed that lord shaftesbury, who, although himself too shrewd to believe in the popish plot, had been working it furiously for his own purposes, was taken into office on the formation of sir william temple's new scheme of administration, and was actually made president of the council. but he began to entertain a suspicion that the king had been acting a part against his inclination and his judgment, and, having ascertained the real truth upon this point, he showed himself equally versatile and violent by suddenly going over to the opposite faction. roger north gives the following racy account of his conversion:-- "it fell out that when the earl of shaftesbury had sat some short time in the council, and seemed to rule the roast, yet scroggs had some qualms in his political conscience; and coming from windsor in the lord chief justice north's coach, he took the opportunity and desired his lordship to tell him seriously if my lord shaftesbury had really so great power with the king as he was thought to have. his lordship answered quick, 'no, my lord, no more than your footman hath with you.' upon that the other hung his head, and, considering the matter, said nothing for a good while, and then passed to other discourse. after that time he turned as fierce against oates and his plot as ever before he had ranted for it." the first popish plot case which came on after this conversion was the trial of sir george wakeman, the queen's physician, against whom oates and bedloe swore as stoutly as ever; making out a case which implicated, to a certain degree, the queen herself. but chief justice scroggs now sneered at the marvellous memory or imagination of oates; and, taking very little notice, in his summing up, of the evidence of bedloe, thus concluded:-- "if you are unsatisfied upon these things put together, and, well weighing, you think the witnesses have not said true, you will do well to acquit." _bedloe._--"my lord, my evidence is not right summed up." _scroggs, c. j._--"i know not by what authority this man speaks. gentlemen, consider of your verdict." an acquittal taking place, not only were oates and bedloe in a furious rage, but the mob were greatly disappointed, for their belief in the plot was still unshaken, and scroggs, who had been their idol a few hours ago,[ ] was in danger of being torn in pieces by them. although he contrived to escape in safety to his house, he was assailed next morning by broadsides, ballads sung in the streets, and libels in every imaginable shape. on the first day of the following term, he bound over in open court the authors, printers, and signers of some of the worst of them, and made the following speech:-- "i would have all men know that i am not so revengeful in my nature, nor so nettled with this aspersion, that i could not have passed by this and more; but the many scandalous libels that are abroad, and reflect on public justice as well as upon my private self, make it the duty of my place to defend the one, and the duty i owe to my reputation to vindicate the other. this is the properest occasion for both. if once our courts of justice come to be awed or swayed by vulgar noise,[ ] it is falsely said that men are tried for their lives or fortunes; they live by chance, and enjoy what they have as the wind blows, and with the same certainty. such a base, fearful compliance made felix, willing to please the people, leave paul bound. the people ought to be pleased with public justice, and not justice seek to please the people. justice should flow like a mighty stream; and if the rabble, like an unruly wind, blow against it, the stream they made rough will keep its course. i do not think that we yet live in so corrupt an age that a man may not with safety be just, and follow his conscience; if it be otherwise, we must hazard our safety to preserve our integrity. as to sir george wakeman's trial, i am neither afraid nor ashamed to mention it. i will appeal to all sober and understanding men, and to the long robe more especially, who are the best and properest judges in such cases, for the fairness and equality of my carriage on that occasion. for those hireling scribblers who traduce me,--who write to eat and lie for bread,--i intend to meet with them another way, for, like vermin, they are only safe while they are secret. and let those vipers, those printers and booksellers by whom they vend their false and braided ware, look to it; they shall know that the law wants not power to punish a libellous and licentious press, nor i resolution to put the law in force. and this is all the answer fit to be given (besides a whip) to those hackney writers and dull observators that go as they are hired or spurred, and perform as they are fed. if there be any sober and good men that are misled by false reports, or by subtlety deceived into any misapprehensions concerning that trial or myself; i should account it the highest pride and the most scornful thing in the world if i did not endeavor to undeceive them. to such men, therefore, i do solemnly declare in the seat of justice, where i would no more lie or equivocate than i would to god at the holy altar, i followed my conscience according to the best of my understanding in all that trial, without fear, favor, or reward, _without the gift of one shilling, or the value of it directly or indirectly, and without any promise or expectation whatsoever_.[ ] do any think it an even wager, whether i am the greatest villain in the world or not--one that would sell the life of the king, my religion, and country, to papists for money? he that says great places have great temptations, has a little if not a false heart himself. let us pursue the discovery of the plot in god's name, and not balk any thing where there is suspicion on reasonable grounds; but do not pretend to find what is not, nor count him a turncoat that will not betray his conscience, nor believe incredible things. those are foolish men who think that an acquittal must be wrong, and that there can be no justice without an execution." many were bound over; but not more than one prosecution was brought to trial--that against richard radley, who was convicted of speaking scandalous words of the lord chief justice scroggs, and fined £ . when the earl of castlemaine--the complaisant husband of the king's mistress--was brought to trial for being concerned in the plot, scroggs was eager to get him off, still despising popular clamor. bedloe being utterly ruined in reputation, dangerfield was now marched up, as the second witness, to support oates. he had been sixteen times convicted of infamous offences; and, to render him competent, a pardon under the great seal was produced. but the chief justice was very severe upon him, saying, in summing up to the jury, "whether this man be of a sudden become a saint because he has become a witness, i leave that to you to consider. now i must tell you, though they have produced two witnesses, if you believe but one, this is insufficient. in treason, there being two witnesses, the one believed, the other disbelieved, may there be a conviction? i say, no. let us deal fairly and aboveboard, and so preserve men who are accused and not guilty." the defendant being acquitted, the chief justice was again condemned as a renegade. he further made himself obnoxious to the charge of having gone over to the papists, by his conduct on the trial of mrs. elizabeth cellier, who, if she had been prosecuted while he believed that the government wished the plot to be considered real, would unquestionably have been burned alive for high treason, but now was the object of his especial protection and favor. the second witness against her was dangerfield, who, when he was put into the box, before any evidence had been given to discredit him, was thus saluted by chief justice scroggs:-- "we will not hoodwink ourselves against such a fellow as this, that is guilty of such notorious crimes. a man of modesty, after he hath been in the pillory, would not look a man in the face. such fellows as you are, sirrah, shall know we are not afraid of you. it is notorious enough what a fellow this is. i will shake all such fellows before i have done with them." _dangerfield._--"my lord, this is enough to discourage a man from ever entering into an honest principle." _scroggs, c. j._--"what! do you, with all the mischief that hell hath in you, think to have it in a court of justice? i wonder at your impudence, that you dare look a court of justice in the face, after having been made appear so notorious a villain. come, gentlemen of the jury, this is a plain case; here is but one witness in a case of treason; therefore lay your heads together, and say _not guilty_." mrs. cellier was set at liberty, and dangerfield was committed to occupy her cell in newgate. when holding assizes in the country, he took every opportunity of proclaiming his slavish doctrines. going the oxford circuit with lord chief baron atkyns, he told the grand jury that a petition from the lord mayor and citizens of london to the king, for calling a parliament, was high treason. atkyns, on the contrary, affirmed "that the people might petition the king, and, so that it was done without tumult, it was lawful." scroggs, having peremptorily denied this, went on to say "that the king might prevent printing and publishing whatever he chose by proclamation." atkyns mildly remarked, "that such matters were fitter for parliament, and that, if the king could do this work of parliament, we were never like to have parliaments any more." scroggs, highly indignant, sent off a despatch to the king, stating the unconstitutional and treasonable language of chief baron atkyns. this virtuous judge was in consequence superseded, and remained in a private station till he was reinstated in his office after the revolution. before scroggs was himself prosecuted and dismissed from his office with disgrace, he swelled the number of his delinquencies by an attack on the liberty of the press, which was more violent than any that had ever been attempted by the star chamber, and which, if it had been acquiesced in, would have effectually established despotism in this country. here he was directly prompted by the government, and it is surprising that this proceeding should so little have attracted the notice of historians who have dwelt upon the arbitrary measures of the reign of charles ii. the object was to put down all free discussions, and all complaints against misrule, by having, in addition to a licenser, a process of _injunction_ against printing--to be summarily enforced, without the intervention of a jury, by fine, imprisonment, pillory, and whipping. there was then in extensive circulation a newspaper called "the weekly pacquet of advice from rome, or the history of papacy," which reflected severely upon the religion now openly professed by the duke of york and secretly embraced by the king himself. in trinity term, , an application being made to the court of king's bench, on the ground that this newspaper was libellous, scroggs, with the assent of his brother judges, granted a rule absolute in the first instance, forbidding the publication of it in future. the editor and printer being served with the rule, the journal was suppressed till the matter was taken up in the house of commons, and scroggs was impeached. the same term he gave the crowning proof of his servility and contempt of law and of decency. shaftesbury, to pave the way for the exclusion bill, resolved to prosecute the duke of york as a "popish recusant." the heir presumptive to the throne was clearly liable to this proceeding and to all the penalties, forfeitures, and disqualifications which it threatened, for he had been educated a protestant, and, having lately returned from torturing the covenanters in scotland, he was in the habit of ostentatiously celebrating the rites of the romish religion in his chapel in london. an indictment against him was prepared in due form, and this was laid before the grand jury for the county of middlesex by lord shaftesbury, along with lord russell, lord cavendish, lord grey de werke, and other members of the country party. this alarming news being brought to scroggs while sitting on the bench, he instantly ordered the grand jury to attend in court. the bailiff found them examining the first witness in support of the indictment; but they obeyed orders. as soon as they had entered the court, the chief justice said to them, "gentlemen of the grand jury, you are discharged, and the country is much obliged to you for your services." there were two classes whom he had offended, of very different character and power--the witnesses in support of the popish plot, and the exclusionist leaders. the first began by preferring articles against him to the king in council, which alleged, among other things, that at the trial of sir george wakeman "he did browbeat and curb dr. titus oates and captain bedloe, two of the principal witnesses for the king, and encourage the jury impanelled to try the malefactors to disbelieve the said witnesses, by speaking of them slightingly and abusively, and by omitting material parts of their evidence; that the said chief justice, to manifest his slighting opinion of the evidence of the said dr. titus oates and captain bedloe in the presence of his most sacred majesty and the lords of his majesty's most honorable privy council, did dare to say that dr. titus oates and captain bedloe always had an accusation ready against any body; that the said lord chief justice is very much addicted to swearing and cursing in his common discourse, and to drink to excess, to the great disparagement of the dignity and gravity of his office." it seems surprising that such charges, from such a quarter, against so high a magistrate, should have been entertained, although he held his office during the pleasure of the crown. the probability is that, being in favor with the government, it was considered to be the most dexterous course to give him the opportunity of being tried before a tribunal by which he was sure of being acquitted, in the hope that his acquittal would save him from the fangs of an enraged house of commons. he was required to put in an answer to the articles, and a day was appointed for hearing the case. when it came on, to give great _éclat_ to the certain triumph of the accused, the king presided in person. oates and bedloe were heard, but they and their witnesses were constantly interrupted and stopped, on the ground that they were stating what was not evidence, or what was irrelevant; and, after a very eloquent and witty speech from the chief justice, in the course of which he caused much merriment by comments on his supposed immoralities, judgment was given that the complaints against him were false and frivolous. but shaftesbury was not so easily to be diverted from his revenge. on the meeting of parliament he caused a motion to be made in the house of commons for an inquiry into the conduct of lord chief justice scroggs in discharging the middlesex grand jury and in other matters. a committee was accordingly appointed, which presented a report recommending that he should be impeached. the report was adopted by a large majority, and articles of impeachment were voted against him. these were _eight_ in number. the _first_ charged in general terms "that the said william scroggs, chief justice of the king's bench, had traitorously and wickedly endeavored to subvert the fundamental laws and the established religion and government of the kingdom of england." the _second_ was for illegally discharging the grand jury, "whereby the course of justice was stopped maliciously and designedly--the presentments of many papists and other offenders were obstructed--and in particular a bill of indictment against james, duke of york, which was then before them, was prevented from being proceeded upon." the _third_ was founded on the illegal order for suppressing the weekly pacquet newspaper. the three following articles were for granting general warrants, for imposing arbitrary fines, and for illegally refusing bail. the _seventh_ charged him with defaming and scandalizing the witnesses who proved the popish plot. the _last_ was in these words: "viii. whereas the said sir william scroggs, being advanced to be chief justice of the court of king's bench, ought, by a sober, grave, and virtuous conversation, to have given a good example to the king's liege people, and to demean himself answerably to the dignity of so eminent a station; yet, on the contrary thereof, he doth, by his frequent and notorious excesses and debaucheries, and his profane and atheistical discourses, daily affront almighty god, dishonor his majesty, give countenance and encouragement to all manner of vice and wickedness, and bring the highest scandal on the public justice of the kingdom." these articles were carried to the house of peers by lord cavendish, who there, in the name of all the commons of england, impeached chief justice scroggs for "high treason, and other high crimes and misdemeanors." the articles being read, the accused, who was present, sitting on the judge's woolsack, was ordered to withdraw. a motion was then made, that he be _committed_; but the previous question was moved and carried, and a motion for an address to suspend him from his office till his trial should be over, was got rid of in the same manner. he was then called in, and ordered to find his bail in £ , , to answer the articles of impeachment, and to prepare for his trial. luckily for him, at the end of three days the parliament was abruptly dissolved. it would have been difficult to make out that any of the charges amounted to _high treason_; but in those days men were not at all nice about such distinctions, and a dangerous but convenient doctrine prevailed, that, upon an impeachment, the two houses of parliament might retrospectively declare any thing to be treason, according to their discretion, and punish it capitally. at any rate, considering that the influence of shaftesbury in the upper house was so great, and that halifax and the respectable anti-exclusionists could not have defended or palliated the infamous conduct of scroggs, had his case come to a hearing, he could not have got off without some very severe and degrading punishment. although he escaped a judicial sentence, his character was so blown upon, and juries regarded him with such horror, and were so much inclined to go against his direction, that the government found that he would obstruct instead of facilitating their designs against the whig leaders, and that it was necessary to get rid of him. after the dissolution of the oxford parliament the court was completely triumphant, and, being possessed for a time of absolute power, had only to consider the most expedient means of perpetuating despotism, and wreaking vengeance on the friends of freedom. before long, russell, sydney, and shaftesbury were to be brought to trial, that their heads might pay the penalty of the exclusion bill; but if scroggs should be their judge, any jury, whether inclined to protestantism or to popery, would probably acquit them. accordingly, in the beginning of april, to make room for one who, it was hoped, would have more influence with juries, and make the proceedings meditated against the city of london and other corporations pass off with less discredit, while he might be equally subservient, sir william scroggs was removed from his office of chief justice of the king's bench. so low had he fallen, that little regard was paid to his feelings, even by those for whom he had sacrificed his character and his peace of mind; and, instead of a "resignation on account of declining health," it was abruptly announced to him that a _supersedeas_ had issued, and that sir francis pemberton, who had been a puisne judge under him, was to succeed him as chief justice. his disgrace caused general joy in westminster hall, and over all england; for, as jeffreys had not yet been clothed in ermine, the name of scroggs was the by-word to express all that could be considered loathsome and odious in a judge. he was allowed a small pension, or retired allowance, which he did not long enjoy. when cashiered, finding no sympathy from his own profession, or from any class of the community, he retired to a country house which he had purchased, called wealde hall, near brentwood, in essex. even here, his evil fame caused him to be shunned. he was considered by the gentry to be without religion and without honor; while the peasantry, who had heard some vague rumors of his having put people to death, believed that he was a murderer, whispered stories of his having dealings with evil spirits, and took special care never to run the risk of meeting him after dark. his constitution was undermined by his dissolute habits; and, in old age, he was still a solitary selfish bachelor. after languishing, in great misery, till the th day of october, , he then expired, without a relation or friend to close his eyes. he was buried in the parish church of south wealde; the undertaker, the sexton, and the parson of the parish, alone attending the funeral. he left no descendants; and he must either have been the last of his race, or his collateral relations, ashamed of their connection with him, had changed their name; for, since his death, there has been no scroggs in great britain or ireland. the word was long used by nurses to frighten children; and as long as our history is studied, or our language is spoken or read, it will call up the image of a base and bloody-minded villain. with honorable principles, and steady application, he might have been respected in his lifetime, and left an historical reputation behind him. "he was a person of very excellent and nimble parts," and he could both speak and write our language better than any lawyer of the seventeenth century, francis bacon alone excepted. he seems to have been little aware of the light in which his judicial conduct would be viewed; for it is a curious fact that the published reports of the state trials at which he presided were all revised and retouched by himself; and his speeches, which fill us with amazement and horror, he expected would be regarded as proofs of his spirit and his genius. he had excellent natural abilities, and might have made a great figure in his profession; but was profligate in his habits, brutal in his manners, with only one rule to guide him--a regard to what he considered his own interest--without a touch of humanity, wholly impenetrable to remorse. chapter xiii. francis north. we now come to one of the most contemptible of men--francis north, known by the title of lord keeper guilford. he had not courage to commit great crimes; but--selfish, cunning, sneaking, and unprincipled--his only restraint was a regard to his own personal safety, and throughout his whole life he sought and obtained advancement by the meanest arts. our hero, although he himself ascribed his success to his poverty, was of noble birth. the founder of his family was edward north, a serjeant at law, chancellor of the augmentations, and created a baron by writ in the reign of henry viii. dudley, the third baron, "having consumed the greatest part of his estate in the gallantries of king james's court, or, rather, his son prince henry's," retired and spent the rest of his days at his seat in cambridgeshire. when the civil war broke out, he sided with the parliament, and on rare occasions coming to london, he is said to have sat on the trial of laud, and to have voted for his death. having reached extreme old age, he died in the year . dudley, his heir, who, at the age of sixty-three, stood on the steps of the throne in the house of lords as "the eldest son of a peer," was a great traveller in his youth, and served with distinction in the low countries under sir francis vere. yet he never would put on his hat, nor sit down in the presence of his father, unless by the old peer's express commands. being returned to the long parliament for the county of cambridge, he strenuously opposed the court, and signed the solemn league and covenant; but, adhering to the presbyterian party, he was turned out by _pride's purge_, and lived in retirement till the restoration. he married anne, one of the daughters and coheirs of sir charles montagu, brother of the earl of manchester, by whom he had a very numerous family. the subject of this memoir was their second son, and was born on the d of october, . though he turned out such a zealous royalist and high churchman, his early training began among republicans and fanatics. as soon as he left the nursery, he was sent to a preparatory school at isleworth, the master of which was a rigid presbyterian. his wife was a furious independent, and she ruled the household. "she used to instruct her babes in the gift of praying by the spirit, and all the scholars were made to kneel by a bedside and pray; but this petit spark was too small for that posture, and was set upon a bed to kneel, with his face to a pillow." his family becoming disgusted with the extravagance of the ruling powers, and beginning to look to royalty as the only cure for the evils the nation was suffering, he was removed from isleworth, and put to a grammar school at bury st. edmunds, under a cavalier master. in , he was admitted a fellow commoner at st. john's college, cambridge. he is said to have remained there two or three years, applying diligently to the studies of the place; but he seems to have devoted much of his time to the bass-viol, and he left the university without a degree. he was then transferred to the middle temple. his father bought him a very small set of chambers, in which he shut himself up, and dedicated himself to the study of the law. he early learned and often repeated this saying of the citizens to their apprentices, "keep your shop, and your shop will keep you." he did not frequent riding schools, or dancing schools, or playhouses, or gaming houses--so dangerous to youth at the inns of court. though he could "make one at gammon, gleek, piquet, or even the merry-main, he had ever a notable regard to his purse to keep that from oversetting, like a vessel at sea that hath too much sail and too little ballast." while a student, he paid frequent and long visits to his grandfather, who seems to have become a most singularly tyrannical and capricious old man. frank exerted himself to the utmost to comply with all his humors, being allowed by him £ a year. he was always industrious during these visits, though he could not altogether avoid bowling, fishing, hunting, visiting, and billiards; he spent the greater part of his time in reading and commonplacing the law books brought down to him by the carrier. while in town, he always dined in the hall--twelve at noon being the hour of dinner--and supped there again at six; after which "case-putting" began in the cloister walks; and he acquired the character of a great "put-case." he kept a commonplace book, which seems to have been almost as massive as brooke's "abridgment of the law." he made himself well acquainted with the year books, although not altogether so passionately attached to them as serjeant maynard, who, when he was taking an airing in his coach, always carried a volume of them along with him, which, he said, amused him more than a comedy. he attended all famous legal arguments, particularly those of sir heneage finch, and taking notes in the morning in law french, he employed himself at night in making out in english a report of the cases he had heard. by way of relaxation he would go to music meetings, or to hear hugh peters preach. nothing places him in such an amiable point of view as the delight he is said to have taken, on rare occasions, in "a petit supper and a bottle," when there really seems to have been a short oblivion of anxiety about his rise in the world; but, to show his constitutional caution, his brother roger assures us that, "whenever he was a little overtaken, it was a warning to him to take better care afterwards." long before he was called to the bar, "he undertook the practice of court-keeping;" that is, he was appointed the steward of a great many manors by his grandfather and other friends, and he did all the work in person, writing all his court-rolls, and making out his copies with his own hand. i am afraid he now began his violation of the rights and liberties of his fellow-subjects by practising some petty extortions upon the bumpkins who came before him. "his grandfather," says roger,[ ] with inimitable simplicity, "had a venerable old steward, careful by nature and faithful to his lord, employing all his thoughts and time to manage for supply of his house and upholding his rents,--in short, one of a race of human kind heretofore frequent, but now utterly extinct,--affectionate as well as faithful, and diligent rather for love than self-interest. this old gentleman, with his boot-hose and beard, used to accompany his young master to his court-keeping, and _observing him reasoning the country people out of their pence for essoines, &c._, he commended him, saying, 'if you will be contented, master frank, to be a great while getting a little, you will be a little while getting a great deal;' wherein he was no false prophet." having been the requisite time on the books of the society of the middle temple, and performed all his moots, (upon which he bestowed great labor,) francis was called to the bar. the allowance of sixty pounds a year which he had hitherto received from his father was now reduced to fifty, in respect of the pence he collected by court-keeping and the expected profits of his practice. he highly disapproved of this reduction, and wrote many letters to his father to remonstrate against it. at last he received an answer which he hoped was favorable, but which contained only these words, "frank, i suppose by this time, having vented all your discontent, you are satisfied with what i have done." the reduced allowance, however, was continued to him as long as his father lived, who said "he would not discourage industry by rewarding it when successful with loss." the young barrister was now hard put to it. he took "a practising chamber" on a first floor in elm court, "a dismal hole--dark next the court, and on the other side a high building of the inner temple standing within five or six yards of the windows." he was able to fill his shelves with all useful books of the law from the produce of certain legacies and gifts collected for him by his mother,[ ] and he seems still to have had a small pecuniary help from his grandfather. for some time he had great difficulty in keeping free from debt; but he often declared that "if he had been sure of a hundred pounds a year to live upon, he had never been a lawyer." he is much praised by his brother, because it is said "he did not, (as seems to have been common,) for the sake of pushing himself, begin by bustling about town and obtruding himself upon attorneys, or bargaining for business, but was contented if chance or a friend brought him a motion, as he was standing at the bar taking notes." these, however, came so rarely that he fell into a very dejected and hypochondriacal state. thinking himself dying, he carried a list of his ailments to a celebrated physician, dr. beckenham of bury, who laughed at him and sent him away, prescribing fresh air and amusement. he was in danger of utterly sinking in the slough of despond, when he was suddenly taken by the hand by the great lawyer, sir jeffrey palmer, who was made attorney general on the restoration of charles ii., and who if he had lived must have been lord chancellor. his son edward, a very promising young man, lately called to the bar, died about this time in the arms of francis north, who had been at college with him, and had shown him great attention during his illness. all the business destined for young palmer now somehow found its way to his surviving friend. his powerful protector, the attorney general, rapidly brought him forward by employing him in government prosecutions, and even when he himself was confined by illness, by giving him his briefs in smaller matters to hold for him in court. north, we may be sure, was most devotedly assiduous in making a suitable return for this kindness, and in flattering his patron. instead of the sentiments he had imbibed from his family in his early days, he now loudly expressed those of an ultra prerogative lawyer, exalting the power of the king both over the church and the parliament. being considered a rising man, his private friends and near relations came to consult him. he was once asked if he took fees from them. "yes," said he; "they no doubt come to do me a kindness; and what kindness have i if i refuse their money?" soon after he was called to the bar, he went the norfolk circuit, where his family interest lay; but here again he chiefly relied upon his grand resource of flattering his superiors and accommodating himself to their humors. "he was exceeding careful to keep fair with the cocks of the circuit, and particularly with serjeant earl, who had almost a monopoly. the serjeant was a very covetous man, and when none would starve with him in journeys, this young gentleman kept him company." they once rode together from cambridge to norwich without drawing bit, to escape the expense of baiting at an inn; and north would have been famished, if the serjeant's man, knowing his master's habits, had not privately furnished him with a cake. he asked the serjeant, out of compliment to his riches, how he kept his accounts, "for you have," said he, "lands, securities, and great comings in of all kinds." "accounts, boy!" exclaimed the serjeant, "i get as much as i can, and i spend as little as i can; and there is all the account i keep." in these journeys the serjeant talked so agreeably of law, and tricks, and purchases, and management, that north's hunger was beguiled, and he thought only of the useful knowledge he was acquiring, and the advantage to be derived from the countenance of a man so looked up to. lord chief justice hyde generally rode the norfolk circuit, and so completely had north taken the measure of his foot, that my lord called him "cousin" in open court, "which was a declaration that he would take it for a respect to himself to bring him causes." the biographer to whom we are so much indebted lays it down that there is no harm in a judge letting it be known "that a particular counsel will be easily heard before him, and that his errors and lapses, when they happen, will not offend his lordship or hurt the cause." the morality of the bar in those days will be better understood by the following observations of simple roger: "in circuit practice there is need of an exquisite knowledge of the judge's humor, as well as his learning and ability to try causes; and he, north, was a wonderful artist at watching a judge's tendency, to make it serve his turn, and yet never failed to pay the greatest regard and deference to his opinion; for so they get credit; because _the judge for the most part thinks that person the best lawyer that respects most his opinion_. i have heard his lordship say, that sometimes he hath been forced to give up a cause to the judge's opinion when he (the judge) was plainly in the wrong, and when more contradiction had but made him more positive; and, besides, that in so doing he himself had weakened his own credit with the judge, thereby been less able to set him right when he was inclined to it. a good opinion so gained often helps at another time to good purpose, and sometimes to ill purpose; as i heard it credibly reported of serjeant maynard that, being the leading counsel in a small feed cause, he would give it up to the judge's mistake, and not contend to set him right, that he might gain credit to mislead him in some other cause in which he was well feed." these gentlemen of the long robe ought to have changed places in court with the highwaymen they were retained to prosecute.[ ] there was no nonsense, however arrant, a silly judge might speak in deciding for north, which he would not back. thus a certain mr. justice archer, who seems to have been the laughing stock of the profession, having, to the amusement of the juniors, "noted a difference between a renunciation of an executorship upon record and _in pais_," north said, "ay, my lord; just so, my lord;" upon which his lordship became as fierce as a lion, and would not hear the argument on the other side. but even such a learned and sensible judge as chief justice hale, north could win by an affectation of modesty, diffidence, and profound veneration. early in his career, when he found it difficult to get to his place in a very crowded court, sir matthew said from the bench, "good people, make way for this little gentleman; he will soon make way for himself." his consultations were enormously long, and he gained vast applause at them by his care and dexterity in probing the cause, starting objections, inventing points, foretelling what would be said by the opposite counsel and by the judge, and showing how the verdict might be lost or was to be secured; but, to make security doubly sure, after mastering the record and perusing the deeds to be given in evidence, he himself examined the witnesses, and thus had an opportunity of presenting the facts properly to their minds. need we wonder that from an humble beginner, rejoicing in a cause that came to him, he soon became "cock of the circuit"--all who had trials rejoicing to have him on their side? i shall give one specimen of his conduct as a leader. he was counsel for the defendant in an action tried before his friend judge archer, for not setting out tithes--in which the treble value was to be recovered. finding that he had not a leg to stand upon, he manoeuvred to get his client off with the single value; so he told his lordship that this was a cause to try a right of a very intricate nature, which would require the reading a long series of records and ancient writings, and that it ought not to be treated as a penal action; wherefore, they should agree upon the single value of the tithes, for which the verdict should be taken conditionally, and then proceed fairly to try the merits. the judge insisted on this course being adopted; and the other side, not to irritate him, acquiesced in north's proposal. "then did he open a long history of matters upon record, of bulls, monasteries, orders, greater and lesser houses, surrenders, patents, and a great deal more, _very proper if it had been true_, while the counsel on the other side stared at him; and having done, they bid him go to his evidence. he leaned back, as speaking to the attorney, and then, '_my lord_,' said he, '_we are very unhappy in this cause. the attorney tells me they forgot to examine their copies with the originals at the tower_;' and (so folding up his brief,) '_my lord_,' said he, '_they must have the verdict, and we must come better prepared another time_.' so, notwithstanding all the mooting the other side could make, the judge held them to it, and they were choused of the treble value." while north had such success on the circuit, he was equally flourishing in westminster hall. by answering cases and preparing legal arguments for sir jeffrey palmer, and by flouting at parliamentary privilege, he was still higher than ever in favor with that potential functionary. it happened that in the year , after the fall of the earl of clarendon, a writ of error was brought in the house of lords by denzil hollis, now lord hollis, the only defendant surviving, upon the judgment of the court of king's bench in the great case of _the king_ v. _sir john elliot, denzil hollis, and others_, decided in the fifth year of the reign of charles i. this had been a prosecution by the king against five members of the house of commons, for what had been done in the house on the last day of the session, when sir john finch was held in the chair while certain resolutions alleged to be seditious had been voted, and one of the defendants had said "that the council and judges had all conspired to trample under foot the liberties of the subject." they had pleaded to the jurisdiction of the court of king's bench, "that the supposed offences were committed in parliament, and ought not to be punished or inquired of in this court, or elsewhere than in parliament." but their plea had been overruled, and they were all sentenced to heavy fine and imprisonment. although there had been resolutions of the house of commons, on the meeting of the long parliament, condemning this judgment, it still stood on record, and lord hollis thought it was a duty he owed to his country, before he died, to have it reversed. sir jeffrey palmer, as attorney general, pleaded _in nullo est erratum_; but having returned his writ of summons to the house of lords, and being in the habit of sitting there on the woolsack, as one of the assessors to the peers, he could not himself argue the case as counsel at the bar. the king's serjeants declined to do so out of respect to the house of commons. francis north, thinking this a most favorable opportunity to make himself known at court as an anti-parliamentarian lawyer, volunteered to support the judgment, and his services were accepted. he says himself "he was satisfied he argued on the right side, and that on the record the law was for the king." accordingly, on the appointed day he boldly contended that, as the information averred that the offences were committed _against the peace_, as privilege of parliament does not extend to offences in breach of the peace, as they had not been punished in the parliament in which they were committed, and as no subsequent parliament could take notice of them, they were properly cognizable in a court of common law. the judgment was reversed, but north's fortune was made. the duke of york was pleased to inquire "who that young gentleman was who had argued so well." being told that "he was the younger son of the lord north, and, what was rare among young lawyers at that time, of loyal principles," his royal highness undertook to encourage him by getting the king to appoint him one of his majesty's counsel. north was much gratified by receiving a message to this effect, but was alarmed lest the lord keeper bridgeman, who by his place was to superintend preferments in the law, might conceive a grudge against him for this interference with his patronage. the lord keeper acquitted him of all blame, wished him joy, and with peculiar civility desired him to take his place within the bar. things went on very smoothly with him now till the death of sir jeffrey palmer, when sir heneage finch being promoted to be attorney general, the solicitor's place was vacant. north, being the only king's counsel, and having been long employed in crown business, had a fair claim to succeed, and he was warmly supported by the lord keeper, as well as the new attorney general, who was desirous of having him for a colleague; but the duke of buckingham, at this time considered prime minister, preferred sir william jones, who was north's chief competitor in the king's bench, and over whose head he had been put when he received his silk gown.[ ] to terminate the difference they were both set aside, and the office of solicitor general was given to sir edward turner, speaker of the house of commons, who held it for a twelvemonth, at the end of which he was made chief baron of the exchequer, in the room of sir matthew hale, promoted to be chief justice of the common pleas. buckingham's influence had greatly declined, and north was made solicitor general without difficulty, jones being solaced with a silk gown, and the promise of further promotion on the next vacancy. the cabal was now in its full ascendancy; and as the leaders did not take any inferior members of the government into their councils, and contrived to prevent the meeting of parliament for nearly two years, the new solicitor had only to attend to his profession. of course, he gave up the circuit, and he set the example, generally followed for one hundred and fifty years, of making the court of chancery his principal place of practice, on being promoted to be a law officer of the crown; henceforth going to other courts only in cases in which the crown was concerned, or which were of very great magnitude. to keep up his law, when he could be spared from the court of chancery, he stepped across the hall and seated himself in the court of king's bench, "with his note book in his hand, reporting as the students about the court did, and during the whole time of his practice every christmas he read over littleton's tenures." he had hitherto practised conveyancing to a considerable extent; but he now turned over this business to siderfin the reporter, whom he appointed to serve him in the capacity of "devil," as he himself had served sir jeffrey palmer. he was on very decent terms with sir heneage finch, who had much assisted his promotion; but he showed his characteristic cunning by an expedient he adopted to get the largest share of the patent business. then, as now, all patents of dignity belong exclusively to the attorney general; but the warrants for all other patents might be carried either to the attorney or solicitor. north, with much dexterity, took into his employment a clerk of sir jeffrey palmer, who was reputed to have a magazine of the best precedents, and who had great interest among the attorneys, whereby many patents came to his chambers which otherwise would have gone to the attorney general's. but if he was eager to get money, he spent it freely. he was now appointed "autumn reader" of the middle temple, and though the festivity was not honored with the presence of royalty, like finch's, in the inner temple, it was conducted sumptuously, and cost him above a thousand pounds. he took for his subject "the statute of fines," which he treated very learnedly, and the arguers against him, the best lawyers of the society, did their part very stoutly. on the "grand day" all the king's chief ministers attended, and the profusion of the best provisions and wine led to such debauchery, disorder, tumult, and waste, that this was the last public reading in the inns of court, the lectures being discontinued and the banqueting commuted for a fine. i must not pass over his loves, although they were not very romantic or chivalrous. he was desirous of being married, among other reasons, because he was tired of dining in the hall and eating "a costelet and salad at chastelin's in the evening with a friend;" and he wished to enjoy the pleasures of domestic life. one would have thought that the younger son of a peer, of great reputation at the bar, solicitor general at thirty-one, and rising to the highest offices in the law, might have had no difficulty in matching to his mind; but he met with various rebuffs and disappointments. above all, he required wealth, which it seems was not then easily to be obtained without the display of a long rent roll. he first addressed the daughter of an old usurer in gray's inn, who speedily put an end to the suit by asking him "what estate his father intended to settle upon him for present maintenance, jointure, and provision for children." he could not satisfy this requisition by an "abstract" of his "profitable rood of ground in westminster hall." he then paid court to a coquettish young widow; but after showing him some favor, she jilted him for a jolly old knight of good estate. the next proposition was made by him to a city alderman, the father of many daughters, who, it was given out, were to have each a portion of six thousand pounds. north dined with the alderman, and liked one of them very much; but coming to treat, the fortune shrank to five thousand pounds. he immediately took his leave. the alderman ran after him, and offered him to boot five hundred pounds on the birth of the first child, but he would not bate a farthing of the six thousand. at last his mother found him a match to his mind in the lady frances pope, one of the three daughters and coheirs of the earl of down, who lived at wroxton, in oxfordshire, with fortunes of fourteen thousand pounds apiece. we are surprised to find that, with all his circuit and westminster hall earnings, he was obliged to borrow six hundred pounds from a friend before he could compass six thousand pounds to be settled upon her. he then ventured down with grand equipage and attendance, and in less than a fortnight obtained the young lady's consent, and the writings being sealed, the lovers were happily married. the feasting and jollities in the country lasted three weeks, and mr. solicitor, heartily tired of them, was very impatient to get back to his briefs. however, he seems always to have treated his wife, while she lived, with all due tenderness. he took a house in chancery lane, near serjeants' inn, and acquired huge glory by constructing a drain for the use of the neighborhood--a refinement never before heard of in that quarter. this was the happiest period of his life. in the beginning of , the meeting of parliament could be deferred no longer, and it was considered necessary that the solicitor general should have a seat in the house of commons. he remained member for lynn till he was made chief justice of the common pleas, in january, ; but i can hardly find any trace of his ever having spoken in the house of commons. shaftesbury was at last turned out, the great seal was given to sir heneage finch, and north became attorney general. he had for his colleague as solicitor his old rival, sir william jones, who seems to have been a considerable man, who afterwards had the virtue voluntarily to give up office that he might join the popular party, and who, if not cut off by an early death, would probably have acted the part of lord somers at the revolution, and left a great name in history. parliament met in a few weeks after north's promotion. we are told that "little or nothing of the king's business in the house of commons leaned upon him, because mr. secretary coventry was there, who managed for the court." north once or twice spoke a few words, "in resolving the fallacies of the country party," but did not venture beyond an opinion upon a point of law which incidentally arose. "he could not attend the house constantly, but took the liberty of pursuing his practice in westminster hall."[ ] there he was easily the first; and the quantity of business which he got through in chancery ("his home") and the other courts where he went _special_ seems to have been enormous. his mode of preparation was (like lord erskine's) to have a consultation in the evening before reading his brief, when "he was informed of the history of the cause, and where the pinch was". next morning at four he was called by a trusty boy, who never failed, winter or summer, to come into his chamber at that hour,[ ] and by the sitting of the court he had gone through his brief, and was ready to do ample justice to his clients. fees now flowed in upon him so fast that he hardly knew how to dispose of them. he seems to have taken them from his clients with his own hand. at one time he had had a fancy, for his health, to wear a sort of skullcap. he now routed out three of these, which he placed on the table before him, and into these he distributed the cash as it was paid to him. "one had the gold, another the crowns and half crowns, and another the smaller money." when these vessels were full, they were committed to his brother roger, who told out the pieces and put them into bags, which he carried to child's, the goldsmith, at temple bar.[ ] but still mr. attorney was dissatisfied with his position. he could not but be mortified by his insignificance in the house of commons. the country party there was rapidly gaining strength, and although it was not then usual for the crown to turn out its law officers on a change of ministers, he began to be very much frightened by threats of impeachment uttered against all who were instrumental in executing the measures of the government. shaftesbury was in furious opposition. while only at the head of a small minority in the house of lords, the house of commons was more and more under his influence. north was exceedingly timid, always conjuring up imaginary dangers, and exaggerating such as he had to encounter. he now exceedingly longed to lay his head on "the cushion of the common pleas," instead of running the risk of its being laid on the block on tower hill. vaughan, the chief justice of that court, died, and north's wishes were accomplished, notwithstanding some intrigues to elevate sir william jones or sir william montagu. when it came to the pinch, north was rather shocked to think of the sacrifice of profit which he was making, "for the attorney's place was (with his practice) near seven thousand pounds per annum, and the cushion of the common pleas not above four thousand. but accepting, he accounted himself enfranchised from the court brigues and attendances at the price of the difference." north held the office of chief justice of the common pleas nearly eight years, which may be divided into two periods-- st. from his appointment till the formation of the council of thirty, on the recommendation of sir william temple, in the year ; dly. from thence till he received the great seal, in the end of the year . during the former he mixed little in politics, and devoting himself to his juridical duties, he discharged them creditably. at this time, and for long after, the emoluments of the judges in westminster hall depended chiefly upon fees, and there was a great competition between the different courts for business. the king's bench, originally instituted for criminal proceedings, had, by a dexterous use of their writ of "_latitat_," tricked the common pleas of almost all civil actions; and when the new chief justice took his seat, he found his court a desert. there was hardly sufficient business to countenance his coming every day in term to westminster hall, while the serjeants and officers were repining and starving. but he was soon up with the king's bench, by a new and more dexterous use of the "_capias_," the ancient writ of that court--applying it to all personal actions. at this time, a judge, when appointed, selected a circuit, to which he steadily adhered, till another, which he preferred, became vacant. chief justice north for several years "rode the western;" and in his charges to juries, as well as in his conversation with the country gentlemen, he strongly inculcated the most slavish church-and-king doctrines, insomuch that the cavaliers called him "_deliciæ occidentis_," or "the darling of the west." the chief justice afterwards went the northern circuit, attended by his brother roger, who gives a most entertaining account of his travels, and who seems to have thought the natives of northumberland and cumberland as distant, as little known, and as barbarous, as we should now think the esquimaux or the aborigines of new zealand. till the popish plot broke out, chief justice north had no political trials before him; and the only cases which gave him much anxiety were charges of witchcraft. he does not appear, like chief justice hale, to have been a believer in the black art; but, with his characteristic timidity, he was afraid to combat the popular prejudice, lest the countrymen should cry, "this judge hath no religion; he doth not believe witches." therefore he avoided trying witches himself as much as possible, and turned them over to his brother judge, mr. justice raymond, whom he allowed to hang them. he was once forced to try a wizard; but the fraud of a young girl, whom the prisoner was supposed to have enchanted and made to spit pins, was so clearly exposed by the witnesses, that the chief justice had the boldness to direct an acquittal. the popish plot he treated as he did witchcraft. he disbelieved it from the beginning, but was afraid openly to express a doubt of its reality. he thought it might be exposed by the press, and he got a man to publish an anonymous pamphlet against it, to which he contributed; but sitting along with chief justice scroggs, who presided at the trial of those charged with being implicated in it, he never attempted to restrain this "butcher's son and butcher" from slaughtering the victims. so on the trial of lord stafford, though he privately affected severely to condemn the proceeding, he would not venture to save lord nottingham,[ ] the high steward, from the disgrace of assisting in that murder; and he dryly gave his own opinion that two witnesses were not necessary to each overt act of treason. we have still more flagrant proof of his baseness on the trial of reading, prosecuted by order of the house of commons for trying to suppress evidence of the plot. north himself now presided, and having procured a conviction, in sentencing the defendant to fine, imprisonment, and pillory, he said, "i will tell you your offence is so great, and hath such a relation to that which the whole nation is concerned in, because it was an attempt to baffle the evidence of that conspiracy, which, if it had not been, by the mercy of god, detected, god knows what might have befallen us all by this time." we now come to present north on the political stage, where he continued to act a very conspicuous and disreputable part down to the time of his death. in the year , when the king adopted his new plan of government by a council of thirty, of which shaftesbury was made president, and into which lord russell and several of the popular leaders were introduced, it was thought fit to balance them by some determined ultra-royalists; and the lord chief justice of the common pleas, who had acquired himself the reputation of being the most eminent of that class, was selected, although he had not hitherto been a privy councillor. at first he seldom openly gave any opinion in council, but he secretly engaged in the intrigues which ended in the abrupt prorogation and dissolution of the parliament, in the dismissal of shaftesbury, and the resignation of lord russell and the whigs. the scheme of government was then altered, and a cabinet, consisting of a small number of privy councillors, was formed, north being one of them. to his opinion on legal and constitutional questions the government was now disposed to show more respect than to that of lord chancellor nottingham. there being much talk against the court in the london coffee houses, it was wished to suppress them by proclamation; and our chief justice, being consulted on the subject, gave this response--that "though retailing of coffee may, under certain circumstances, be an innocent trade, yet as it is used at present in the nature of a common assembly to discourse of matters of state, news, and great persons, it becomes unlawful; and as the coffee houses are nurseries of idleness and pragmaticalness, and hinder the consumption of our native provisions, they may be treated as common nuisances." accordingly, a proclamation was issued for shutting up all coffee houses, and forbidding the sale of coffee in the metropolis; but this caused such a general murmur, not only among politicians and idlers, but among the industrious classes connected with foreign and colonial trade, that it was speedily recalled. the meeting of the new parliament summoned in the end of having been repeatedly postponed, there arose the opposite factions of "petitioners" and "abhorrers"--the former _petitioning_ the king that parliament might be speedily assembled for the redress of grievances, and the latter, in their addresses to the king, expressing their _abhorrence_ of such seditious sentiments. the "petitioners," however, were much more numerous and active, and a council was called to consider how their proceedings might be stopped or punished. our chief justice recommended a proclamation, which the king approved of, and ordered the attorney general, sir creswell levinz, to draw. mr. attorney, alarmed by considering how he might be questioned for such an act on the meeting of parliament, said, "i do not well understand what my lord chief justice means, and i humbly pray of your majesty that his lordship may himself draw the proclamation." _king._--"my lord, i think then you must draw this proclamation." _chief justice._--"sire, it is the office of your majesty's attorney general to prepare all royal proclamations, and it is not proper for any one else to do it. i beg that your majesty's affairs may go on in their due course; but if in this matter mr. attorney doubts any thing, and will give himself the trouble to call upon me, i will give him the best assistance i can." sir creswell, having written on a sheet of paper the formal commencement and conclusion of a royal proclamation, carried it to the chief justice, who filled up the blank with a recital that, "for spurious ends and purposes relating to the public, persons were going about to collect and procure the subscriptions of multitudes of his majesty's subjects to petitions to his majesty; which proceedings were contrary to the known laws of this realm, and ought not to go unpunished;" and a mandate to all his majesty's loving subjects, of what rank or degree soever, "that they presume not to agitate or promote any such subscriptions, nor in any wise join in any petition in that manner to be preferred to his majesty, upon pain of the utmost rigor of the law, and that all magistrates and other officers should take effectual care that all such offenders against the laws be prosecuted and punished according to their demerits."[ ] parliament at last met, and strong measures were taken against the "abhorrers," who had obstructed the right of petitioning. an inquiry was instituted respecting the proclamation. sir creswell levinz was placed at the bar, and asked by whose advice or assistance he had prepared it. he several times refused to answer; but being hard pressed, and afraid of commitment to the tower, he named the lord chief justice north, against whom there had been a strong suspicion, but no proof. a hot debate arose, which ended in the resolution, "that the evidence this day given to this house against sir francis north, chief justice of the common pleas, is sufficient ground for this house to proceed upon an impeachment against him for high crimes and misdemeanors." he was a good deal alarmed by the vote of impeachment,[ ] but it raised him still higher in favor at court. next day, presiding in the house of lords as speaker, in the absence of the lord chancellor, and seeming very much dejected, king charles (according to his manner) "came and clapped himself down close by him on the woolsack, and 'my lord,' said he, 'be of good comfort; i will never forsake my friends, as my father did.'" his majesty, without waiting for a reply, then walked off to another part of the house. a committee was appointed to draw up the articles of impeachment against the chief justice; but before they made any report, this parliament too was dissolved. soon after the summoning of charles's last parliament, north was obliged to set off upon the spring circuit; and notwithstanding his best efforts to finish the business rapidly, he could not arrive at oxford till the two houses had assembled. he was one of the small junto to whom was intrusted the secret of immediate dissolution. the moment the deed was done, he set off for london, pretending to be afraid of what he called "the positive armament against the king, which manifestly showed itself at oxford." as soon as the cabinet met at whitehall, north advised the issuing of a declaration to justify the dissolution of the three last parliaments which had met respectively at westminster and oxford, and himself drew an elaborate one, which was adopted. this state paper certainly puts the popular party in the wrong upon the "exclusion question" and other matters with considerable dexterity, and it was supposed to have contributed materially to the reaction going on in favor of the government. so far his conduct was legitimate, and in the fair exercise of his functions as a privy councillor; but i am sorry to say that he now sullied his ermine by a flagrant disregard of his duties as a judge. the grand jury for the city of london having very properly thrown out the bill of indictment against stephen college, "the protestant joiner," it was resolved to try him at oxford; and for this purpose a special commission was issued, at the head of which was placed lord chief justice north. burnet says mildly, "north's behavior in that whole matter was such that, probably, if he had lived to see an impeaching parliament, he might have felt the ill effects of it." after perusing the trial, i must say that his misconduct upon it was most atrocious. the prisoner, being a violent enemy to popery, had attended the city members to oxford as one of their guard, with "no popery" flags and cockades, using strong language against the papists and their supporters, but without any thought of using force. yet the chief justice was determined that he should be found guilty of compassing and imagining the king's death, and levying war against him in his realm.[ ] college's papers, which he was to use in his defence, were forcibly taken from him, on the ground that they had been written by some other persons, who gave him hints what he was to say. they were in reality prepared by his legal advisers, mr. aaron smith and mr. west. the prisoner was checked and browbeaten as often as he put a question or made an observation. his defence was much more able than could have been expected from a person in his station of life, but of course he was convicted. the chief justice, in passing sentence, observed, "look you, mr. college; because you say you are innocent, it is necessary for me to say something in vindication of the verdict, which i think the court were all well satisfied with. i thought it was a case that, as you made your own defence, small proof would serve the turn to make any one believe you guilty. for, as you defend yourself by pretending to be a protestant, i did wonder, i must confess, when you called so many witnesses to your religion and reputation, that none of them gave an account that they saw you receive the sacrament within these many years, or any of them particularly had seen you at church in many years, or what kind of protestant you were. but crying aloud against the papists, it was proved here who you called papists. you had the boldness to say the king was a papist, the bishops were papists, and the church of england were papists. if these be the papists you cry out against, what kind of protestant you are i know not--i am sure you can be no good one. how it came into your head, that were but a private man, to go to guard the parliament, i much wonder. suppose all men of your condition should have gone to have guarded the parliament, what an assembly had there been! and though you say you are no man of quality, nor likely to do any thing upon the king's guards or the king's person, yet if all your quality had gone upon the same design, what ill consequences might have followed! we see what has been done by massaniello, a mean man, in another country--what by wat tyler and jack straw in this kingdom." college asked him to fix the day of his death, but he answered that that depended on the king; adding, in a tone of great humanity, "that he should have due notice of it to prepare, by repenting of his crimes." college's innocence was so manifest, that even hume, eager to palliate all the atrocities of this reign, says, "that his whole conduct and demeanor prove him to have been governed by an honest but indiscreet zeal for his country and his religion." on the st of august, , the sentence, with all its savage barbarities, was carried into execution. "sir francis north," observes roger coke, "was a man cut out, to all intents and purposes, for such a work." he was next called upon to assist at the immolation of a nobler victim, who escaped from the horns of the altar. shaftesbury had been for some time very careful never to open his mouth on politics out of the city of london and county of middlesex, and during the oxford parliament had touched on no public topic except in the house of lords. it was resolved at all hazards to bring him to trial; but this could only be done by an indictment to be found at the old bailey. there did north attend when the indictment was to be preferred, and, resolutely assist lord chief justice pemberton in perverting the law,[ ] by examining the witnesses in open court, and by trying to intimidate and mislead the grand jury; but he was punished by being present at the shout, which lasted an hour, when "_ignoramus_" was returned. he next zealously lent himself to the scheme of the court for upsetting the municipal privileges of the city of london, and of obtaining sheriffs for london and middlesex who would return juries at the will of the government. the lord mayor having been gained over, and the stratagem devised of creating a sheriff by the lord mayor drinking to him, instead of by the election of his fellow-citizens, the difficulty was to find any freeman of fair character who would incur all the odium and risk of being so introduced to the shrievalty. it so happened that at that time there returned to england a brother of the chief justice, mr. dudley, afterwards sir dudley north, who was free of the city from having been apprenticed there to a merchant, and who had amassed considerable wealth by a long residence in turkey. it being suggested at court that this was the very man for their sheriff; "the king very much approved of the person, but was very dubious whether the chief justice, with his much caution and wisdom, would advise his brother to stand in a litigious post. but yet he resolved to try; and one day he spoke to sir francis with a world of tenderness, and desired to know if it would be too much to ask his brother dudley to hold sheriff on my lord mayor's drinking." the wily chief justice immediately saw the advantage this proposal might bring to the whole family, and returned a favorable answer. "for matter of title," says roger, "he thought there was more squeak than wool; for whatever people thought was at the bottom, if a citizen be called upon an office by the government of the city, and obeys, where is the crime? but then such a terrible fear was artificially raised up in the city as if this service was the greatest hazard in the world." sir francis gently broke the matter to his brother, saying "that there was an opportunity which preferred itself whereby he might make a fortune if he wanted it, and much enlarge what he had, besides great reputation to be gained, which would make him all the days of his life very considerable, laying open the case of the lord mayor's right very clear and plain, against which in common sense there was no reply." dudley, however, made many objections, and talked of the terrible expense to which he should be exposed. the chief justice urged that if he served, the obligation was so transcendent, that there could be no employment by commission from the crown which would not fall to his share, "and as for the charge," said he, "here, brother, take a thousand pounds to help make good your account, and if you never have an opportunity by pensions or employments to reimburse you and me, i will lose my share; else i shall be content to receive this thousand pounds out of one half of your pensions when they come in, and otherwise not at all." the merchant yielded; and under this pure bargain, proposed by the judge before whom the validity of the appointment might come to be decided, when his health was given by the lord mayor as sheriff of london and middlesex, he agreed to accept the office. but the old sheriffs insisted on holding a common hall for the election of their successors, according to ancient usage, on midsummer day; when lord chief justice north had the extreme meanness, at the king's request, to go into the city and take post in a house near guildhall, belonging to sir george jeffreys, "who had no small share in the conduct of this affair, to the end that if any incident required immediate advice, or if the spirits of the lord mayor should droop, which in outward appearance were but faint, there might be a ready recourse." it is true the opposite faction had the lord grey de werke and other leaders from the west end of the town, to advise and countenance them; but this could be no excuse for a judge so degrading himself. the poll going for the popular candidates, the lord mayor, by chief justice north's advice, under pretence of a riot, attempted to adjourn the election; but the sheriffs required that the polling should continue, and declared papillon and dubois duly elected. this causing great consternation at whitehall, a council was called, to which the lord mayor and aldermen were summoned. lord chief justice north, by the king's command, addressed them, saying, "that the proceedings of the sheriffs at the common hall after the adjournment were not only utterly null and void, but the persons were guilty of an audacious riot and contempt of lawful authority, for which by due course of law they would be severely punished; but in the mean time it was the lord mayor's duty and his majesty's pleasure that they should go back to the city and summon the common hall, and make election of sheriffs for the year ensuing." the lord mayor, having been told that the courtiers would bamboozle him and leave him in the lurch, when north had concluded, said, "my lord, will your lordship be pleased to give me this under your hand?" the king and all the councillors were much tickled to see the wily chief justice thus nailed, "expecting some turn of wit to fetch himself off, and thinking to have sport in seeing how woodenly he would excuse himself." but to their utter astonishment, for once in his life francis north was bold and straightforward, and cheating them all, he answered, without any hesitation, "yes, and you shall have it presently." then seizing a pen, he wrote, "i am of opinion that it is in the lord mayor's power to call, adjourn, and dissolve the common hall at his pleasure, and that all acts done there, as of the common hall, during such adjournment, are mere nullities, and have no legal effect." this he signed and handed to the lord mayor, who then promised obedience. accordingly, another common hall was called, at which it was pretended that sir dudley north and rich were elected, and they were actually installed in the office of sheriff. by the contrivance of lord chief justice north, the office of lord mayor for the ensuing year was likewise filled by a thorough passive-obedience tool of the court. gould, the liberal candidate, had a majority of legal votes on the poll, but under a pretended scrutiny, pritchard was declared duly elected, and sir john more, the renegade mayor, willingly transferred to him the insignia of chief magistrate, so that the king had now the city authorities completely at his devotion. shaftesbury fled to holland; and it was for the court to determine when the blow should be struck against the popular leaders who remained. such were the services of lord chief justice north, which all plainly saw would ere long be rewarded by higher promotion. the health of lord nottingham, the chancellor, was rapidly declining, and the court had already designated his successor. lord craven, famous for wishing to appear intimate with rising men, in the circle at whitehall, now seized lord chief justice north by the arm and whispered in his ear; and the foreign ambassadors so distinctly saw the shadow of the coming event that they treated him with as great respect as if he had been prime minister, "and when any of them looked towards him and thought he perceived it, they very formally bowed." we are told that in many things north acted as "co-chancellor" with nottingham; and for the first time the office of chancellor seems to have been like that of sheriff of middlesex, one in its nature, but filled by two officers of equal authority. it is said that "the _aspirant_ dealt with all imaginable kindness and candor to the _declinant_, and that never were predecessor and successor such cordial friends to each other, and in every respect mutually assistant, as those two were." while the lord chancellor was languishing, the chief justice being at windsor, the king plainly intimated to him that when the fatal event, which must be shortly looked for, had taken place, the great seal would be put into his hands. he modestly represented himself to his majesty as unfit for the place, and affected by all his art and skill to decline it. in truth, he really wished to convey to the king's mind the impression that he did not desire it, although he had been working so foully for it--as he knew it would be pressed upon him, there being no competitor so knowing and so pliant, and he had an important stipulation to make for a pension before he would accept it. when he came back to london, and confidentially mentioned what had passed between him and the king, he pretended to be annoyed, and said "that if the seal were offered to him he was determined to refuse it;" but it is quite clear that he was highly gratified to see himself so near the great object of his ambition, and that his only anxiety now was, that he might drive a good bargain when he should consent to give up "the cushion of the common pleas." lord nottingham having died about four o'clock in the afternoon of monday, the th of december, , the great seal was carried next morning from his house, in great queen street, to the king at windsor. the following day his majesty brought it with him to whitehall, and in the evening sent for the lord chief justice of the common pleas, to offer it to him. when north arrived, he found lord rochester, the treasurer, and several other ministers, closeted with charles. as yet there was no distinction between the funds to be applied to the king's private expenses and to the public service--the exchequer being now very empty, and the resolution being taken never more to summon a parliament for supplies--it was considered an object that the keeper of the great seal should be contented with the fees of his office, without any allowance or pension from the crown. charles himself was careless about such matters, but the treasurer had inculcated upon him the importance of this piece of economy. as soon as north entered, his majesty offered him the seal, and the ministers began to congratulate the new lord keeper; but, with many acknowledgments for his majesty's gracious intentions, he begged leave to suggest the necessity, for his majesty's honor, that a pension[ ] should be assigned to him, as it had been to his predecessor, for otherwise the dignity of this high office could not be supported. rochester interposed, pointing out the necessity, in times like these, for all his majesty's servants to be ready to make some sacrifices; that the emoluments of the great seal were considerable; and that it would be more becoming to trust to his majesty's bounty than to seek to drive a hard bargain with him. but sir george jeffreys being yet only a bustling city officer, who could not with any decency have been put at the head of the law; the attorney and solicitor general not being considered men of mark or likelihood; sir harbottle grimston, the master of the rolls, being at death's door, and no other common law judge besides himself being produceable, the little gentleman was firm, and positively declared that he would not touch the great seal without a pension. after much haggling, a compromise took place, by which he was to have two thousand pounds a year instead of the four thousand pounds a year assigned to his predecessor. the king then lifted up the purse containing the seal, and putting it into his hand, said, "here, my lord, take it; you will find it heavy." "thus," says roger north, "his majesty acted the _prophet_ as well as the _king_; for, shortly before his lordship's death, he declared that, _since he had the seal, he had not enjoyed one easy and contented minute_." when the new lord keeper came home at night from whitehall to his house in chancery lane, bringing the great seal with him, and attended by the officers of the court of chancery, instead of appearing much gratified, as was expected by his brother and his friends, who were waiting to welcome him, he was in a great rage--disappointed that he had not been able to make a better bargain, and, perhaps, a little mortified that he had only the title of "lord keeper" instead of the more sounding one of "lord chancellor." recriminating on those with whom he had been so keenly acting the chapman, he exclaimed, "to be haggled with about a pension, as at the purchase of a horse or an ox! after i had declared that i would not accept without a pension, to think i was so frivolous as to insist and desist all in a moment! as if i were to be wheedled and charmed by their insignificant tropes! to think me worthy of so great a trust, and withal so little and mean as to endure such usage! it is disobliging, inconsistent, and insufferable. what have i done that may give them cause to think of me so poor a spirit as to be thus trifled with?" it might have been answered that, though the king and the courtiers made use of him for their own ends, they had seen his actions, understood his character, and had no great respect for him. till jeffreys was a little further advanced, they could not run the risk of breaking with him; but then he was subjected to all sorts of mortifications and insults. on the first day of the following hilary term he took his place in the court of chancery. by this time he was in possession of his predecessor's house in great queen street, lincoln's inn fields, and he had a grand procession from thence to westminster hall, attended by the duke of ormond, the earls of craven and rochester, the great officers of state, and the judges. he took the oaths, the master of the rolls holding the book. he does not appear to have delivered any inaugural address. the attendant lords staid and heard a motion or two, and then departed, leaving the lord keeper in court. they might have been well amused if they had remained. for the crooked purposes of the government, with a view to the disfranchising of the city of london by the _quo warranto_ defending against it, pemberton[ ] was this day to be removed from being chief justice of the king's bench to be chief justice of the common pleas, and edmund saunders was to be at once raised from wearing a stuff gown at the bar to be chief justice of the king's bench. this keen but unscrupulous lawyer was previously to be made a serjeant, that he might be qualified to be a judge, and, coming into the court of chancery, he presented the lord keeper with a ring for himself, and another for the king, inscribed with the courtly motto, "_principi sic placuit_." the lord keeper then accompanied him into court where he was to preside, called him to the bench, and made him a speech on the duties of his office. the ceremonies of the day were concluded by his lordship afterwards going to his old court, the common pleas, and there swearing in pemberton as his successor, whom he congratulated upon "the ease with dignity" which he was now to enjoy. parasites and preferment-hunters crowded the levee of the new lord keeper. he was immediately waited upon by the courtly evelyn, who discovered in him a thousand good qualities.[ ] in the midst of these blandishments he applied himself with laudable diligence to the discharge of his judicial duties. he declared that he was shocked by many abuses in the court of chancery, and he found fault with the manner in which his two predecessors, bridgeman and nottingham, had allowed the practice of the court to lead to delay and expense. north's conduct as a law reformer was extremely characteristic. he talked much of issuing a new set of "rules and orders" to remedy all abuses, but he was afraid "that it would give so great alarm to the bar and officers, with the solicitors, as would make them confederate and demur, and, by making a tumult and disturbance, endeavor to hinder the doing any thing of that kind which they would apprehend to be very prejudicial to their interests."[ ] then, when he wished to simplify the practice and to speed causes to a hearing and final decree, he considered that he was not only to regard the suitors, but that "there was a justice due as well to the crown, which had advantage growing by the disposition of places, profits, by process of all sorts, as also the judges and their servants, and counsel at the bar, and solicitors, who were all in possession of their advantages, and by public encouragement to spend their youth to make them fit for them, and had no other means generally to provide for themselves and their families, and had a right to their reasonable profits, if not strictly by law, yet through long connivance." i think we must say that his alleged merit as a chancery reformer consists chiefly in the profession of good intentions; that he allowed the practice of the court to remain pretty much as he found it; and that if he saw and approved what was right, he followed what was wrong--aggravating his errors by disregarding the strong dictates of his conscience. nevertheless, he applied himself very assiduously to the business of his court, which, from his experience at the bar, and from his having often sat for his predecessor, was quite familiar to him; and he seems to have disposed of it satisfactorily. he was not led into temptation by having to decide in equity any political case; and no serious charge was preferred against him of bribery or undue influence. till the meeting of parliament in the reign of james, and the failure of his health, he prevented the accumulation of arrears; and, upon the whole, as an equity judge, he is to be praised rather than censured. i wish as much could be said of his political conduct while he held the great seal. he may have _wished_ "to bring the king to rule wholly by law, and to do nothing which, by any reasonable construction, might argue the contrary;" but for this purpose he would make feeble efforts, and no sacrifice; and all the measures of the court, however profligate, when resolved upon, he strenuously assisted in carrying into execution. the ministers who now bore sway, and who were on several points opposed to each other, were halifax, sunderland, and rochester. the duke of york, restored to the office of lord high admiral and to the privy council, in direct violation of the "test act," had so much influence, that it was said that "to spite those who wished to prevent him from reigning at the king's death, he was permitted to reign during the king's life." the duchess of portsmouth was likewise at the head of a party at court, although mrs. gwin, her protestant rival, did not interfere with politics. with none of these would the lord keeper combine. his policy was to study the peculiar humors of the king--to do whatever would be most agreeable personally to him--to pass for "the king's friend"--and to be "_solus cum solo_." charles, although aware of his cunning and his selfishness, was well pleased with the slavish doctrines he laid down, and with the devoted zeal he expressed for the royal prerogative; and till jeffrey's superior vigor, dexterity, and power of pleasing gained the ascendancy, usually treated him with decent consideration. he never would give any opinion on foreign affairs, nor attend a committee of council summoned specially to consider them, professing himself, for want of a fit education and study, incompetent to judge at all of these matters, and declaring, like a true courtier, that "king charles ii. understood foreign affairs better than all his councils and councillors put together." but he regularly attended all other cabinet meetings, and when there was any business of a judicial nature to be done at the council-table, he always presided there, "the lord president not having the art of examining into and developing cases of intricacy." the first of these in which he had to display his powers, was the disfranchisement of the city of london. saunders, counsel in the _quo warranto_, having been appointed chief justice, to decide in favor of the sufficiency of the pleadings which he himself had drawn, the opinion of the court of king's bench had been pronounced for the crown, "that all the city charters were forfeited." formal judgment was not yet entered on the record, to give an opportunity to the mayor, aldermen and citizens, to make their submission and to accept terms which might henceforth annihilate their privileges and make them the slaves of the government. they accordingly did prepare a petition to the king, imploring his princely compassion and grace, which they presented to him at a council held at windsor on the th of june, . the petition being read, they were ordered to withdraw, and when they were again called in, the lord keeper thus addressed them, disclosing somewhat indiscreetly the real motives for the _quo warranto_: "my lord mayor, i am by the king's command to tell you that he hath considered the humble petition of the city of london, where so many of the present magistrates and other eminent citizens are of undoubted loyalty and affection to his service; that for their sakes his majesty will show the city all the favor they can reasonably desire. it was very long before his majesty took resolutions to question their charter; it was not the seditious discourses of the coffee-houses, the treasonable pamphlets and libels daily published and dispersed thence into all parts of the kingdom, the outrageous tumults in the streets, nor the affronts to his courts of justice, could provoke him to it. his majesty had patience until disorders were grown to that height, that nothing less seemed to be designed than a ruin to the government both of church and state." after pointing out the mischief of having factious magistrates, he adds: "it was high time to put a stop to this growing evil. this made it necessary for his majesty to inquire into the abuses of franchises, that it might be in his power to make a regulation sufficient to restore the city to its former good government." he then stated the regulations to which they were required to assent, among which were--"that no lord mayor, sheriff, or other officer should be appointed without the king's consent; that the king might cashier them at his pleasure; that if the king disapproved of the sheriffs elected, he might appoint others by his own authority; and that the king should appoint all magistrates in the city by his commission, instead of their being elected as hitherto." the citizens refused to comply with these terms, and judgment was entered up. thus, on the most frivolous pretexts, and by a scandalous perversion of the forms of law, was the city of london robbed of the free institutions which it had enjoyed, and under which it had flourished for many ages. the proceeding was less appalling to the public than the trial and execution of eminent patriots, but was a more dangerous blow to civil liberty. london remained disfranchised, and governed by the agents of the crown, during the rest of this reign, and till the expected invasion of the prince of orange near the conclusion of the next--when, too late, an offer was made to restore its charters with all its ancient privileges. immediately after the revolution, they were irrevocably confirmed by act of parliament. the lord keeper's conduct in this affair gave such high satisfaction at court, that, as a reward for it, he was raised to the peerage by the title of baron guilford. his brother says that he did not seek the elevation from vanity, but that he might be protected against the attacks which might hereafter be made upon him in the house of commons. he obtained it on the recommendation of the duke of york, who overlooked his dislike of popery in respect of his steady hatred to public liberty. to show his gratitude, the new peer directed similar proceedings to be commenced against many other corporations, which ended in the forfeiture or surrender of the charters of most of the towns in england in which the liberal party had enjoyed an ascendancy. gilbert burnet,[ ] about this time appointed preacher at the rolls, thought he had secured a protector in the lord keeper; but as soon as this whig divine had incurred the displeasure of the court, his lordship wrote to the master of the rolls that the king considered the chapel of the rolls as one of his own chapels, and that dr. burnet must be dismissed as one disaffected to the government. in consequence, he was obliged to go beyond seas, and to remain in exile, till he returned with king william. soon after followed the disgraceful trials for high treason, which arose out of the discovery of the rye-house plot. the lord keeper did not preside at these; but having directed them--superintending the general administration of justice, and especially bound to see that the convictions had been obtained on legal evidence--he is deeply responsible for the blood that was shed. he must have known that if, in point of law, the witnesses made out a case to be submitted to the jury against lord russell, that virtuous nobleman was really prosecuted for his support of the exclusion bill; and he must have seen that against algernon sydney no case had been made out to be submitted to the jury, as there was only one witness that swore to any thing which could be construed into an overt act of treason, and the attempt to supply the defect by a ms. containing a speculative essay on government, which was found in his study, and had been written many years before, was futile and flagitious. yet did he sign the death-warrants of both these men, whose names have been honored, while his has been execrated in all succeeding times. it is edifying and consolatory to think that he was outdone by his own arts, and that the rest of his career was attended by almost constant mortification, humiliation, and wretchedness. saunders enjoyed the office of chief justice of the king's bench only for a few months, being carried off by an apoplexy soon after the decision of the great london _quo warranto_ cause. an intrigue was immediately set on foot to procure the appointment for jeffreys, who had more than ever recommended himself to the court by his zeal on the trial of lord russell, in which he had eclipsed the attorney and solicitor general; and he was anxiously wanted to preside at the trial of sydney, against whom the case was known to be so slender, but who was particularly obnoxious on account of his late quarrel with the duke of york, and his sworn enmity to despotism.[ ] the pretensions of jeffreys were supported by sunderland, probably out of ill will to the lord keeper, who had intuitively shown a great jealousy of the new favorite. but the proposal produced great opposition and bickerings among different sections of courtiers. the lord keeper of course resisted it _totis viribus_, representing to the king that the office, according to ancient and salutary usage, ought to be offered to the attorney and solicitor general, who had been irregularly passed over on the appointment of the late chief justice, to gain an object of such magnitude as the forfeiture of the city charters; that saunders was a man of immense learning, which countenanced _his_ sudden elevation; but that jeffreys, though gifted with a fluency of speech, was known to be unequal to so high an office; and that the whole profession of the law, and the public, would condemn an act so arbitrary and capricious. charles was, or pretended to be, impressed by these arguments, which he repeated to sunderland, and the office was kept vacant for three months after the death of saunders. but on the th of september, the lord keeper had the mortification to put the great seal to the writ constituting jeffreys "chief justice of england," and on the first day of the following michaelmas term to make a speech, publicly congratulating him on his rise to the supreme seat of criminal justice, so well merited by his learning, his abilities, and his services. what was worse, the new lord chief justice was not only sworn a privy councillor, but, in a few weeks, was admitted into the cabinet, where he, from the first, set himself to oppose the opinions, and to discredit the reputation, of him who, he knew, had opposed his appointment, and whom (his ambition being still unsatiated) he was resolved, in due time, to supplant. jeffreys began with interfering very offensively in the appointment of puisne judges, which of right belonged to the lord keeper. at first he was contented with the reputation of power in this department. he next resolved to make a judge, by his own authority, of a man almost as worthless as himself. this was sir robert wright, who had never had any law, who had spent his patrimony in debauchery, and who, being in great distress, had lately sworn a false affidavit to enable him to commit a fraud upon his own mortgagee.[ ] jeffreys was not satisfied with his triumph without proclaiming it to all westminster hall. "being there that same morning, while the court of chancery was sitting, he beckoned to wright to come to him, and giving him a slap on the shoulder, and whispering in his ear, he flung him off, holding out his arms towards the lord keeper. this was a public declaration _that, in spite of that man above there, wright should be a judge_. his lordship saw all this as it was intended he should, and it caused some melancholy." but he found it convenient to pocket the insult: he put the great seal to wright's patent, and assisted at the ceremony of his installation. there is no trace of the lord keeper's speech on this occasion, so that we do not know in what terms he complimented the new judge on his profound skill in the law, his spotless integrity, and his universal fitness to adorn the judgment seat. when heated with liquor, jeffreys could not now conceal his contempt for the lord keeper, even in the king's presence. it is related that, upon the hearing of a matter before the council, arising out of a controversy for jurisdiction between two sets of magistrates, guilford proposed some sort of compromise between them, when the lord chief justice, "flaming drunk," came from the lower to the upper end of the board, and "talking and staring like a madman," bitterly inveighed against "trimmers," and told the king "he had _trimmers_ in his court, and he never would be easy till all the _trimmers_ were sent about their business." "the lord keeper, knowing that these darts were aimed at him,[ ] moved the king that the whole business should be referred to the lord chief justice, and that he should make a report to his majesty in council of what should be fit to be done." this was ordered, and guilford seems to have entertained a hope that jeffreys, from the state of intoxication he was in, would entirely forget the reference, and so might fall into disgrace.[ ] but the most serious difference between them in charles's time was on the return of jeffreys from the northern circuit in the autumn of , when, backed by the duke of york, he had a deliberate purpose of immediately grasping the great seal. at a cabinet council, held on a sunday evening, he stood up, and addressing the king while he held in his hands the rolls of the recusants in the north of england--"sir," said he, "i have a business to lay before your majesty which i took notice of in the north, and which well deserves your majesty's royal commiseration. it is the case of numberless members of your good subjects that are imprisoned for recusancy:[ ] i have the list of them here to justify what i say. they are so many that the great jails cannot hold them without their lying one upon another." after tropes and figures about "rotting and stinking in prison," he concluded with a motion to his majesty "that he would, by his pardon, discharge all the convictions for recusancy, and thereby restore air and liberty to these poor men." this was a deep-laid scheme, for besides pleasing the royal brothers, one of whom was a secret, and the other an avowed papist, he expected that guilford must either be turned out for refusing to put the great seal to the pardon, or that he would make himself most obnoxious to the public, and afterwards to parliament, by compliance. a general silence prevailed, and the expectation was that halifax or rochester, who were strong protestants, would have stoutly objected. the lord keeper, alarmed lest the motion should be carried, and seeing the dilemma to which he might be reduced, plucked up courage and said, "sir, i humbly entreat your majesty that my lord chief justice may declare whether all the persons named in these rolls are actually in prison or not?" _chief justice._--"no fair man could suspect my meaning to be that all these are actual prisoners; for all the jails in england would not hold them. but if they are not in prison, their case is little better; for they lie under sentence of commitment, and are obnoxious to be taken up by every peevish sheriff or magistrate, and are made to redeem their liberty with gross fees, which is a cruel oppression to them and their families." _lord keeper._--"sir, i beg your majesty will consider what little reason there is to grant such a general pardon at this time. for they are not all roman catholics that lie under sentence of recusancy, but sectaries of all kinds and denominations; perhaps as many, or more, who are all professed enemies to your majesty and your government in church and state. they are a turbulent people, and always stirring up sedition. what will they not do when your majesty gives them a discharge at once? is it not better that your enemies should live under some disadvantages, and be obnoxious to your majesty's pleasure, so that, if they are turbulent or troublesome, you may inflict the penalties of the law upon them? if there be any roman catholics whom you wish to favor, grant to them a particular and express pardon, but do not by a universal measure set your enemies as well as your friends at ease. the ill uses that would be made of such a step to the prejudice of your majesty's interests and affairs are obvious and endless."[ ] the king was much struck with these observations, urged with a boldness so unusual in the lord keeper. the other lords wondered, and the motion was dropped. the lord keeper, not without reason, boasted of this as the most brilliant passage of his life. when he came home at night, he broke out in exclamations--"what can be their meaning? are they all stark mad?" and before he went to bed, as a memorial of his exploit, he wrote in his almanack, opposite to the day of the month, "motion _cui solus obstiti_." by such an extraordinary exhibition of courage, to which he was driven by the instinct of self-preservation, he escaped the peril which jeffreys had planned for him, and he retained the great seal till the king's death. in the morning of monday, the d of february, , he was sent for to whitehall, by a messenger announcing that his majesty had had an apoplectic seizure. according to the ancient custom and supposed law when the sovereign is dangerously distempered, the privy council was immediately assembled; and the lord keeper examined the king's physicians.[ ] "their discourse ran upon indefinites--what they observed, their method intended, and success hoped. he said to them, _that these matters were little satisfactory to the council, unless they would declare, in the main, what they judged of the king's case; whether his majesty was like to recover or not_? but they would never be brought to that; _all lay in hopes_." with short intervals the council continued to sit day and night. after a time, the physicians came into the council chamber, smiling, and saying they had good news, for the king had a fever. _lord keeper._--"gentlemen, what do you mean? can any thing be worse?" _first physician._--"now we know what to do." _lord keeper._--"what is that?" _second physician._--"to give him the cortex." the exhibition of jesuits' bark was sanctioned by the council, but proved fatal, and being continued, while the poor king grew weaker and weaker, at the end of four days he expired. the lord keeper and the council were kept in ignorance of the fact that chiffinch (accustomed to be employed on royal errands of a different sort) had been sent for a roman catholic priest, to receive his confession and administer the sacraments to him, when he had declined the spiritual assistance of a bishop of the church of england. the council was still sitting when the news was brought that charles was no more. after a short interval, james, who, leaving the death-bed of his brother, had decently engaged in a devotional exercise in his own closet, entered the apartment in which the councillors were assembled, and all kneeling down, they saluted him as their sovereign. when he had seated himself in the chair of state, and delivered his declaration, which, with very gracious expressions, smacked of the arbitrary principles so soon acted upon, lord guilford surrendered the great seal into his hands, and again received it from him with the former title of lord keeper. james would, no doubt, have been much better pleased to have transferred it to jeffreys; but it was his policy, at the commencement of his reign, to make no change in the administration, and he desired all present to retain the several charges which they held under his deceased brother, assuring them that he earnestly wished to imitate the good and gracious sovereign whose loss they deplored. jeffreys, though continued a member of the cabinet, was probably a good deal disappointed, and he resolved to leave nothing undone to mortify the man who stood between him and his object, and to strike him down as soon as possible. the first question upon which james consulted the council was respecting the levying of the duties of customs and excise, which had been granted by parliament only during the life of the late king. the lord keeper intimating a clear conviction that parliament would continue the grant as from the demise of the crown, recommended a proclamation requiring that the duties should be collected and paid into the exchequer, and that the officers should keep the product separate from other revenues till the next session of parliament, in order to be disposed of as his majesty and the two houses should think fit. but the lord chief justice represented this advice as low and trimming, and he moved that "his majesty should cause his royal proclamation to issue, commanding all officers to collect, and the subjects to pay, these duties for his majesty's use, as part of the royal revenue." the lord keeper ventured humbly to ask his majesty to consider whether such a proclamation would be for his service, as it might give a handle to his majesty's enemies to say that his majesty, at the very entrance upon his government, levied money of the subject without the authority of parliament. the chief justice's advice was far more palatable. the proclamation which he recommended was therefore ordered to be drawn up, and was immediately issued. the lord keeper had the baseness to affix the great seal to this proclamation, thinking as he did of its expediency and legality. but rather than resign or be turned out of his office, he was ready to concur in any outrage on the constitution, or to submit to any personal indignity. a parliament was found indispensable; and, counting on the very loyal disposition manifested by the nation, writs for calling one were issued, returnable the th of may. as that day approached, the lord keeper began to write the speech which he expected to deliver in the presence of the king to the two houses on their assembling. he was much pleased with this performance, on which he had taken uncommon pains, and when finished, he read it to his brother and his officers, who highly applauded it. but what was his consternation when he was told that he was not to be allowed to open his mouth upon the occasion![ ] parliament meeting, the course was adopted which has been followed ever since. instead of having on the first day of the session, before the choice of a speaker by the commons, one speech from the king, and another from the lord chancellor or lord keeper, to explain the causes of the summons, the commons being sent for by the black rod, the lord keeper merely desired them to retire to their own chamber and choose a speaker, and to present him at an hour which was named, for his majesty's approbation. the speaker being chosen and approved of, and having demanded and obtained a recognition of the privileges of the commons, on the following day the king himself made a speech from the throne, and immediately withdrew. but this speech was not in modern fashion settled at the cabinet; nor was it read the evening before at the cockpit, or to the chief supporters of the government in both houses at the dinner-table of the two leaders respectively; nor was it to be treated as the speech of the minister. "at least the lord keeper had no hand in it; for he was not so much as consulted about either the matter or expressions the king intended to use, as one might well judge by the unguarded tenor of it." yet he still was mean enough to cling to office, and to do what he could for a government impatient to get rid of him. he had been very active in the elections; and by his influence had procured the return of a good many zealous church-and-king members. "and to make the attendance easy to these gentlemen, whose concerns were in the country, he took divers of them to rack and manger in his family, where they were entertained while the parliament sat." but nothing which he could do would mitigate the hostility of those who had vowed his destruction. at the meeting of parliament, jeffreys was made a peer, that he might have the better opportunity to thwart and insult the lord keeper; although there had been no previous instance of raising a common-law judge to the peerage. there were several appeals from decrees of the lord keeper speedily brought to a hearing. "jeffreys affected to let fly at them, to have it thought that he was fitter to be chancellor." he attended, neglecting all other business; and during the argument, and in giving his opinion, took every opportunity of disparaging the lord keeper's law, preparatory to moving reversals. he was particularly outrageous in the case of _howard_ v. _the duke of norfolk_, being emboldened to talk confidently on matters with which he was not much acquainted, by having to rest on the reputation of lord nottingham. that great equity lawyer, contrary to the opinion of the two chief justices and the chief baron, whom he had called in to assist him, had held that an equitable estate tail might be created in a term of years; but his successor had reversed his decree, and the decree of reversal was now under appeal. "lord chief justice jeffreys, by means of some encouragement he had met with, took upon him the part of slighting and insulting his lordship on all occasions that proffered. and here he had a rare opportunity; for, in his rude way of talking, and others of a party after him, he battered the poor decree; not without the most indecent affronts to his lordship that in such an assembly ever were heard." the courtesy now prevailing between law lords of opposite political parties was not then known between colleagues sitting in the same cabinet; and the poor lord keeper was assailed by the coarsest vituperation, and the most cutting ridicule. the second earl of nottingham, son of the chancellor, "who hated him because he had endeavored to detract from his father's memory," likewise took this opportunity to attack him, and got together many instances of his ill administration of justice, and greatly exposed him. he was not roused into retaliation or resistance; and he contented himself with a dry legal argument. the decree was reversed; and when he announced that the _contents had it_, he must have felt as if he had been sounding his own death knell. the lay lords who voted could have known nothing of the merits of such a nice question; and must have been guided by favor or enmity to the lord keeper or the lord chief justice. what rendered the defeat and contemptuous usage the more galling was the presence of the king; for james, like his brother, attended in the house of lords when any thing interesting was coming on; and walked about the house, or stood by the fire, or sat in his chair of state or on the woolsack, as suited his fancy. "having opened this scene," says roger, "we are not to expect other than opposition, contempt, and brutal usage, of that chief towards his lordship while he lived." there were few debates in the house of lords during this short session; but, even in going through the common forms of the house, jeffreys found opportunities publicly to testify his contempt for the lord keeper; and in the cabinet, in discussing the dispensation to be granted to catholic officers to serve in the army, and other subjects, he constantly laid traps for him, with a view of either making him obnoxious to the king, or odious to the public--who considered him the author of every declaration or dispensation which passed the great seal. sunderland and other members of the cabinet openly joined in this persecution, and "he was little less than derided by them. being soon to be laid aside, he was not relied upon in any thing, but was truly a seal-keeper rather than a minister of state, and kept on for despatch of the formularies, rather than for advice or trust." why did he not resign? it is difficult to understand the reasoning of his brother, who thus accounts for his continuing to bear such insults:--"his lordship was so ill used at court by the earl of sunderland, jeffreys, and their sub-sycophants, that i am persuaded if he had had less pride of heart, he had been tempted to have delivered up the seal in full health. but he cared not to gratify, by that, such disingenuous enemies. he cared not to humor these barkers, or to quit his place before he might do it with safety to his dignity. he intended to stay till the king would bear him no longer, and then make it his majesty's own act to remove him." he felt keenly a sense of the insignificance and disfavor into which he had fallen; and the anticipation of "the worse remaining behind," when he was to be finally kicked out, preyed upon his spirits. no longer was he ear-wigged by the lord cravens, who worship a favorite; no more did the foreign ambassadors bow low when they thought that he observed them: his levee was now deserted; he seemed to himself to discover a sneer on every countenance at whitehall; and he suspected that the bar, the officers of the court, and the bystanders in chancery, looked at him as if they were sure of his coming disgrace. to shade himself from observation, while he sat on the bench he held a large nosegay before his face. dreadfully dejected, he lost his appetite and his strength. he could not even get through the business of the court; and _remanets_ multiplying upon him kept him awake at night, or haunted him in his sleep. he drooped so much, that for some time he seemed quite heart-broken. at last, he had an attack of fever, which confined him to his bed. the coronation was approaching, and it was important that he should sit in the "court of claims." having recovered a little by the use of jesuits' bark, he presided there, though still extremely weak; and he walked at the coronation "as a ghost with the visage of death upon him, such a sunk and spiritless countenance he had." while he was in this wretched state, news arrived that the duke of monmouth had landed in the west of england and raised the standard of rebellion. the parliament, having come to a number of loyal votes, having attainted the duke, and granted a supply, was adjourned, that the members might assist in preserving tranquillity in their several districts. the lord keeper talked of resigning, and wrote a letter to the earl of rochester, to ask leave to go into the country for the recovery of his health, saying, "i have put myself into the hands of a doctor, who assures me of a speedy cure by entering into a course of physic." leave was given, and he proceeded to wroxton, in oxfordshire, the seat which belonged to him in right of his wife. here he languished while the battle of sedgemoor was fought--monmouth, after in vain trying to melt the heart of his obdurate uncle, was executed on tower hill under his parliamentary attainder, and the inhuman jeffreys, armed with civil and military authority, set out on his celebrated "campaign." roger north would make us believe that the dying guilford was horrified by the effusion of blood which was now _incarnardining_ the western counties by command of the lord general chief justice, and that he actually interposed to stay it:--"upon the news returned of his violent proceedings, his lordship saw the king would be a great sufferer thereby, and went directly to the king, and moved him to put a stop to the fury, which was in no respect for his service; but in many respects for the contrary. for though the executions were by law just, yet never were the deluded people all capitally punished; and it would be accounted a carnage and not law or justice; and thereupon orders went to mitigate the proceeding. i am sure of his lordship's intercession to the king on this occasion, being told it at the very time by himself." it is painful to doubt the supposed exertion of mercy and firmness by the lord keeper; but an attention to dates, of which this biographer is always so inconceivably negligent, shows the story to be impossible. jeffreys did not open his campaign by the slaughter of the lady lisle, at winchester, till the th of august, and he carried it on with increased cruelty till the very end of september. on the th of september died lord keeper guilford, at wroxton, after having been for some weeks in a state of such debility and exhaustion that, able only to attend to his spiritual concerns, he thought no more of domestic treason or foreign levy than if he had already slept in the grave. for a short time after his arrival there, he rallied, by the use of mineral waters, but he soon had a relapse, and he could with difficulty sign his will. he was peevish and fretful during his sickness, but calmly met his end. "he advised his friends not to mourn for him, yet commended an old maid-servant for her good will that said, '_as long as there is life there is hope_.' at length, having strove a little to rise, he said, '_it will not do_;' and then, with patience and resignation, lay down for good and all, and expired." he was buried in wroxton church, in a vault belonging to his wife's family, the earls of down. "he was a crafty and designing man," says bishop burnet. "he had no mind to part with the great seal, and yet he saw he could not hold it without an entire compliance with the pleasure of the court. nothing but his successor made him be remembered with regret. he had not the virtues of his predecessor; but he had parts far beyond him. they were turned to craft; so that whereas the former (lord nottingham) seemed to mean well even when he did ill, this man was believed to mean ill even when he did well." i accede to this character, with the exception of the estimate of north's "parts," which i think are greatly overrated. he was sharp and shrewd, but of no imagination, of no depth, of no grasp of intellect, any more than generosity of sentiment. cunning, industry, and opportunity may make such a man at any time. a nottingham does not arise above once in a century. guilford had as much law as he could contain, but he was incapable of taking an enlarged and commanding view of any subject. in equity, he did nothing to rear up the system of which the foundations had been so admirably laid by his predecessor. his industry was commendable; and i think he may be fairly acquitted of corruption, notwithstanding his indiscreet acceptance of a present of one thousand pounds from the six clerks, when they had a dispute with the sixty, on which he was to adjudicate. where he was not under the apprehension of personal responsibility, there was nothing which he would not say or do to exalt the prerogative and please his patrons. i shall add only one instance. sir thomas armstrong was outlawed for high treason while beyond the seas unless he surrendered within a year. being sent over a prisoner from holland within a year, he insisted that he was entitled to a writ of error to reverse the outlawry and to be admitted to make his defence; but the lord keeper refused him his writ of error, first, on the pretence that there was no fiat for it by the attorney general, and then, that he had no right to reverse his outlawry, as he was present by compulsion. thus the unhappy victim was sent to instant execution without trial. so zealous a conservative was guilford, that "he thought the taking away of the tenures" (_i. e._ the abolition of wardship and the other oppressive feudal burdens introduced at the conquest) "a desperate wound to the liberties of the people." the court wags made great sport of him, the earl of sunderland taking the lead, and giving out the signal, while jeffreys was always ready to join in the laugh. i may offer as an example "the story of the rhinoceros." my lord keeper went one day into the city, accompanied by his brother sir dudley, to see a rhinoceros of enormous size lately imported, and about to be exhibited as a show.[ ] next morning, at whitehall, a rumor was industriously spread that the lord keeper had been riding on the rhinoceros, "and soon after dinner some lords and others came to his lordship to know the truth from himself; for the setters of the lie affirmed it positively, as of their own knowledge. that did not give his lordship much disturbance, for he expected no better from his adversaries. but that his friends, intelligent persons, who must know him to be far from guilty of any childish levity, should believe it, was what _roiled_ him extremely, and much more when they had the face to come to him to know if it were true. so it passed; and the earl of sunderland, with jeffreys and others of that crew, never blushed at the lie of their own making, but valued themselves upon it as a very good jest." to try how far his compliance with the humors of the court would go, they next persuaded his own brother-in-law (that he might not suspect the hoax) to wait upon him, and in strict confidence, and with great seriousness, to advise him to keep a mistress, "otherwise he would lose all his interest with the king; for it was well understood that he was ill looked upon for want of doing so, because he seemed continually to reprehend them by not falling in with the general custom; and the messenger added, that if his lordship pleased he would help him to one." he declined the offer--with much politeness, however, lest he should give offence. but with his familiar friends "he made wonderfully merry with this state policy, especially the procuring part, and said, that if he were to entertain a madam, it would be one of his own choosing, and not one of their stale trumpery." although he never aimed at oratory, it is said that he meditated a "history of his own times." he might have transmitted to us many curious anecdotes, but the performance must have been without literary merit; for some of his notes which he had written as materials are in the most wretched style, and show that he was unacquainted with the first principles of english composition, and even with the common rules of grammar. he did publish two or three short tracts "on music" and other subjects, which were soon forgotten. he was well versed in music, conversed with sir peter lely about painting, speculated with natural philosophers on the use of the bladder of fishes, and learned several of the continental languages; but he seems never to have looked into a classical writer after he left college, and to have had the same taste for the _belles lettres_ as his brother roger, who, placing them all in the same category, talks with equal contempt of "departed quacks, _poets_, and almanack makers." although his two immediate predecessors were libelled and lauded by popular verses in the mouths of every one, i can find no allusion in any fine writer either of the court or country party to north; and it may be doubtful whether he knew anything of the works of butler, of dryden, of waller, or of cowley, beyond the snatches of them he may have heard repeated in the merry circle at whitehall. he lived very hospitably, receiving those who retailed the gossip of the day in his house in great queen street, lincoln's inn fields, then the fashionable quarter of the town for the great nobility as well as for eminent lawyers. the nobility and chief gentry coming to london frequently dined with him. the dinner was at a very early hour, and did not last long. "after a solemn service of tea in a withdrawing room, the company usually left him." he had a court room fitted up on the ground floor, which he then entered, and there he continued hearing causes and exceptions, sometimes to what was considered a late hour. about eight o'clock came supper, which he took with a few private friends, and relished as the most agreeable and refreshing meal of the day. in the vacations, when he could be spared from london, he retired to his seat at wroxton. for some years he likewise rented a villa at hammersmith, but this he gave up soon after his wife's death. he had the misfortune to lose her after they had been married only a few years. she seems to have been a very amiable person. she found out when her husband had any trouble upon his spirits, and she would say, "come, sir francis, (as she always styled him,) you shall not think; we must talk and be merry, and you shall not look on the fire as you do. i know something troubles you; and i will not have it so." he would never marry again, which in his last illness he repented, for "he fancied that in the night human heat was friendly." he was extremely amiable in all the relations of domestic life. nothing can be more touching than the account we have of the warm and steady affection subsisting between him and his brother, who survived to be his biographer. the lord keeper was a little but handsome man, and is said to have had "an ingenuous aspect." he left behind him francis, his son and heir, the second baron guilford, father of francis, the third baron guilford, on whom descended the barony of north, by failure of the elder branch of the family, and who, in , was created earl of guilford, and was the father of lord north, the prime minister, so celebrated for his polished oratory, his refined wit, and amiable manners.[ ] when we estimate what the lord keeper achieved, we should bear in mind that he died at _forty-eight_, an age considerably more advanced than that reached by his immediate successor; yet under that at which other lord chancellors and lord keepers began to look for promotion. he was in truth solicitor general at _thirty-four_, attorney general at _thirty-seven_, chief justice of the common pleas at _thirty-eight_, and lord keeper and a peer at _forty-five_. it is probably well for his memory that his career was not prolonged. he might have made a respectable judge when the constitution was settled; but he was wholly unfit for the times in which he lived. i ought not to conclude this memoir without acknowledging my obligations to "roger north's life of the lord keeper;" which, like "boswell's life of johnson," interests us highly, without giving us a very exalted notion of the author. notwithstanding its extravagant praise of the hero of the tale, its inaccuracies, and its want of method, it is a most valuable piece of biography, and with roger's lives of his brothers "dudley and john," and his "examen," ought to be studied by every one who wishes to understand the history and the manners of the reign of charles ii. chapter xiv. edmund saunders. there never was a more flagrant abuse of the prerogative of the crown than the appointment of a chief justice of the king's bench for the undisguised purpose of giving judgment for the destruction of the charters of the city of london, as a step to the establishment of despotism over the land. sir edmund saunders accomplished this task effectually, and would, without scruple or remorse, have given any other illegal judgment required of him by a corrupt government. yet i feel inclined to treat his failings with lenience, and those who become acquainted with his character are apt to have a lurking kindness for him. from the disadvantages of his birth and breeding, he had little moral discipline; and he not only showed wonderful talents, but very amiable social qualities. his rise was most extraordinary, and he may be considered as our _legal whittington_. "he was at first," says roger north, "no better than a poor beggar-boy, if not a parish foundling, without known parents or relations." there can be no doubt that, when a boy, he was discovered wandering about the streets of london in the most destitute condition--penniless, friendless, without having learned any trade, without having received any education. but although his parentage was unknown to the contemporaries with whom he lived when he had advanced himself in the world, recent inquiries have ascertained that he was born in the parish of barnwood, close by the city of gloucester; and his father, who was above the lowest rank of life, died when he was an infant, and that his mother took for her second husband a man of the name of gregory, to whom she bore several children. we know nothing more respecting him, with certainty, till he presented himself in the metropolis; and we are left to imagine that he might have been driven to roam abroad for subsistence, by reason of his mother's cottage being levelled to the ground during the siege of gloucester; or that, being hardly used by his step-father, he had run away, and had accompanied the broad-wheeled wagon to london, where he had heard that riches and plenty abounded. the little fugitive found shelter in clement's inn, where "he lived by obsequiousness, and courting the attorneys' clerks for scraps." he began as an errand boy, and his remarkable diligence and obliging disposition created a general interest in his favor. expressing an eager ambition to learn to write, one of the attorneys of the inn got a board knocked up at a window on the top of a staircase. this was his desk, and, sitting here, he not only learned the _running hand_ of the time, but _court hand_, _black letter_, and _engrossing_, and made himself "an expert entering clerk." in winter, while at work, he covered his shoulders with a blanket, tied hay bands round his legs, and made the blood circulate through his fingers by rubbing them when they grew stiff. his next step was to copy deeds and law papers, at so much a folio or page, by which he was enabled to procure for himself wholesome food and decent clothes. meanwhile he not only picked up a knowledge of norman french and law latin, but, by borrowing books, acquired a deep insight into the principles of conveyancing and special pleading. by and by the friends he had acquired enabled him to take a small chamber, to furnish it, and to begin business on his own account as a conveyancer and special pleader. but it was in the latter department that he took greatest delight and was the most skilful--insomuch that he gained the reputation of being familiarly acquainted with all its mysteries; and although the order of "special pleaders under the bar" was not established till many years after, he was much resorted to by attorneys who wished by a sham plea to get over the term, or by a subtle replication to take an undue advantage of the defendant. it has been untruly said of him, as of jeffreys, that he began to practise as a barrister without ever having been called to the bar. in truth, the attorneys who consulted him having observed to him that they should like to have his assistance to maintain in court the astute devices which he recommended, and which duller men did not comprehend, or were ashamed of, he rather unwillingly listened to their suggestion that he should be entered of an inn of court, for he never cared much for great profits or high offices; and having money enough to buy beer and tobacco, the only luxuries in which he wished to indulge, he would have preferred to continue the huggermugger life which he now led. he was domesticated in the family of a tailor in butcher row, near temple bar, and was supposed to be rather too intimate with the mistress of the house. however, without giving up his lodging here, to which he resolutely stuck till he was made lord chief justice of england, he was prevailed upon to enter as a member of the middle temple. accordingly, on the th of july, , he was admitted there by the description of "mr. edward saunders, of the county of the city of gloucester, gentleman." the omission to mention the name of his father might have given rise to the report that he was a foundling; but a statement of parentage on such occasions, though usual, was not absolutely required, as it now is. he henceforth attended "moots," and excited great admiration by his readiness in putting cases and taking of objections. by his extraordinary good humor and joviality, he likewise stood high in the favor of his brother templars. the term of study was then seven years, liable to be abridged on proof of proficiency; and the benchers of the middle temple had the discernment and the liberality to call saunders to the bar when his name had been on their books little more than four years. we have a striking proof of the rapidity with which he rushed into full business. he compiled reports of the decisions of the court of king's bench, beginning with michaelmas term, charles ii., a. d. , when he had only been two years at the bar. these he continued till easter term, charles ii., a. d. . they contain all the cases of the slightest importance which came before the court during that period; and he was counsel in every one of them. his "hold of business" appears the more wonderful when we consider that his _liaison_ with the tailor's wife was well known, and might have been expected to damage him even in those profligate times; and that he occasionally indulged to great excess in drinking, so that he must often have come into court very little acquainted with his "breviat," and must have trusted to his quickness in finding out the questions to be argued, and to his storehouses of learning for the apposite authorities. but when we peruse his "reports," the mystery is solved, there is no such treat for a common lawyer. lord mansfield called him the "terence of reporters," and he certainly supports the forensic dialogue with exquisite art, displaying infinite skill himself in the points which he makes, and the manner in which he defends them; doing ample justice at the same time to the ingenuity and learning of his antagonist. considering the barbarous dialect in which he wrote, (for the norman french was restored with charles ii.,) it is marvellous to observe what a clear, terse, and epigrammatic style he uses on the most abstruse juridical topics. he labored under the imputation of being fond of sharp practice, and he was several times rebuked by the court for being "_trop subtile_," or "going too near the wind;" but he was said by his admirers to be fond of his craft only _in meliori sensu_, or in the good sense of the word, and that, in entrapping the opposite party, he was actuated by a love of fun rather than a love of fraud. thus is he characterized, as a practitioner, by roger north:-- "wit and repartee in an affected rusticity were natural to him. he was ever ready, and never at a loss, and none came so near as he to be a match for serjeant maynard. his great dexterity was in the art of special pleading, and he would lay snares that often caught his superiors, who were not aware of his traps. and he was so fond of success for his clients that, rather than fail, he would set the court hard with a trick; for which he met sometimes with a reprimand, which he would wittily ward off, so that no one was much offended with him. but hale could not bear his irregularity of life; and for that, and suspicion of his tricks, used to bear hard upon him in the court. but no ill usage from the bench was too hard for his hold of business, being such as scarce any could do but himself." he did not, like scroggs and jeffreys, intrigue for advancement. he neither sought favor with the popular leaders in the city, nor tried to be introduced into chiffinch's "spie office" at whitehall. "in no time did he lean to faction, but did his business without offence to any. he put off officious talk of government and politics with jests, and so made his wit a catholicon or shield to cover all his weak places and infirmities." he was in the habit of laughing both at cavaliers and roundheads; and, though nothing of a puritan himself, the semi-popish high-churchmen were often the objects of his satire. his professional, or rather his special pleading, reputation forced on him the advancement which he did not covet. towards the end of the reign of charles ii., when the courts of justice were turned into instruments of tyranny, (or, as it was mildly said, "the court fell into a steady course of using the law against all kinds of offenders,") saunders had a general retainer from the crown, and was specially employed in drawing indictments against whigs, and _quo warrantos_ against whiggish corporations. in crown cases he really considered the king as his client, and was as eager to gain the day for him, by all sorts of manoeuvres, as he had ever been for a roguish clement's inn attorney. he it was that suggested the mode of proceeding against lord shaftesbury for high treason; on his recommendation the experiment was made of examining the witnesses before the grand jury in open court, and he suggested the subtlety that "the usual secresy observed being for the king's benefit, it might be waived by the king at his pleasure." when the important day arrived, he himself interrogated very artfully mr. blathwayt, the clerk of the council, who was called to produce the papers which had been seized at lord shaftesbury's house in aldersgate street, and gave a treasonable tinge to all that passed. the _ignoramus_ of his indictment must have been a heavy disappointment to him; but the effort which he made gave high satisfaction to the king, who knighted him on the occasion, and from that time looked forward to him as a worthy chief justice. upon the dissolution of the oxford parliament and the rout of the whig party, it being resolved to hang fitzharris, saunders argued with uncommon zeal against the prisoner's plea, that there was an impeachment depending for the same offence, and concluded his legal argument in a manner which seems to us very inconsistent with the calmness of a dry legal argument--"let him plead guilty or not guilty; i rather hope that he is not guilty than he is guilty; but if he be guilty, it is the most horrid, venomous treason ever spread abroad in any age, and for that reason your lordships will not give countenance to any delay." i find him several times retained as counsel against the crown; but upon these occasions the government wished for an acquittal. he defended the persons who were prosecuted for attempting to throw discredit on the popish plot, he was assigned as one of the counsel for lord viscount stafford, and he supported the application made by the earl of danby to be discharged out of custody. on this last occasion he got into a violent altercation with lord chief justice pemberton. the report says that "mr. saunders had hardly begun to speak when the lord chief justice pemberton did reprimand the said mr. saunders for having offered to impose upon the court. to all which mr. saunders replied, that he humbly begged his lordship's pardon, but he did believe that the rest of his brethren understood the matter as he did." the earl of danby supported this statement, and saunders had a complete triumph over the chief justice. pemberton was soon removed from the office of chief justice of the king's bench, and saunders sat in his place. in spite of the victory which the king had gained over the whigs at the dissolution of his last parliament, he found one obstacle remain to the perpetuation of his despotic sway in the franchises of the city of london. the citizens (among whom were then included all the great merchants and some of the nobility and gentry) were still empowered to elect their own magistrates; they were entitled to hold public meetings; and they could rely upon the pure administration of justice by impartial juries, should they be prosecuted by the government. the attorney and solicitor general, being consulted, acknowledged that it passed their skill to find a remedy; but a case being laid before saunders, he advised that something should be discovered which might be set up as a forfeiture of the city charters, and that a _quo warranto_ should be brought against the citizens, calling upon them to show by what authority they presumed to act as a corporation. nothing bearing the color even of irregularity could be suggested against them, except that, on the rebuilding and enlarging of the markets after the great fire, a by-law had been made, requiring those who exposed cattle and goods to contribute to the expense of the improvements by the payment of a small toll; and that the lord mayor, aldermen, and commonalty of the city had, in the year , presented a petition to the king lamenting the prorogation of parliament in the following terms: "your petitioners are greatly surprised at the late prorogation, whereby the prosecution of the public justice of the kingdom, and the making of necessary provisions for the preservation of your majesty and your protestant subjects, have received interruption." saunders allowed that these grounds of forfeiture were rather scanty, but undertook to make out the by-law to be the usurpation of a power to impose taxes without authority of parliament, and the petition a seditious interference with the just prerogative of the crown.[ ] accordingly, the _quo warranto_ was sued out, and, to the plea setting forth the charters under which the citizens of london exercised their privileges as a corporation, he drew an ingenious replication, averring that the citizens had forfeited their charters by usurping a power to impose taxes without authority of parliament, and by seditiously interfering with the just prerogative of the crown. the written pleadings ended in a demurrer, by which the sufficiency of the replication was referred, as a question of law, to the judgment of the court of king's bench. saunders was preparing himself to argue the case as counsel for the crown, when, to his utter astonishment, he received a letter from the lord keeper announcing his majesty's pleasure that he should be chief justice. he not only never had intrigued for the office, but his appointment to it had never entered his imagination; and he declared, probably with sincerity, that he would much sooner have remained at the bar, as he doubted whether he could continue to live with the tailor in butcher row, and he was afraid that all his favorite habits would be dislocated. this arrangement must have been suggested by cunning lawyers, who were distrustful of pemberton, and were sure that saunders might be relied upon. but roger north ascribed it to charles himself; not attempting, however, to disguise the corrupt motive for it. "the king," says he, "observing him to be of a free disposition, loyal, friendly, and without greediness or guile, thought of him to be chief justice of the king's bench _at that nice time_. and the ministry could not but approve of it. so great a weight was then at stake as could not be trusted to men of doubtful principles, or such as any thing might tempt to desert them." on the d of january, being the first day of hilary term, , sir edmund saunders appeared at the bar of the court of chancery, in obedience to a writ requiring him to take upon himself the degree of serjeant at law, and distributed the usual number of gold rings, of the accustomed weight and fineness, with the courtly motto, "_principi sic placuit_." he then had his coif put on, and proceeded to the bar of the common pleas, where he went through the form of pleading a sham cause as a serjeant. next he was marched to the bar of the king's bench, where he saw the lord keeper on the bench, who made him a flowery oration, pretending "that sir francis pemberton, at his own request, had been allowed to resign the office of chief justice of that court, and that his majesty, looking only to the good of his subjects, had selected as a successor him who was allowed to be the fittest, not only for learning, but for every other qualification." the new chief justice, who often expressed a sincere dislike of _palaver_, contented himself with repeating the motto on his rings, "_principi sic placuit_;" and having taken the oaths, was placed on the bench, and at once began the business of the court. in a few days afterwards came on to be argued the great case of _the king_ v. _the mayor and commonalty of the city of london_. fitch, the solicitor general, appeared for the crown; and treby, the recorder of london, for the defendants. the former was heard very favorably; but the latter having contended that, even if the by-law and the petition were illegal, they must be considered only as the acts of the individuals who had concurred in them, and could not affect the privileges of the body corporate,--an _ens legis_, without a soul, and without the capacity of sinning,--lord chief justice saunders exclaimed,-- "according to your notion, never was one corporate act done by them; certainly, whatsoever the common council does, binds the whole; otherwise it is impossible for you to do any corporate act; for you never do, and never can, convene all the citizens. then you say your petition is no reflection on the king, but it says that by the prorogation public justice was interrupted. if so, by whom was public justice interrupted? why, by the king! and is it no reflection on the king that, instead of distributing justice to his people, he prevents them from obtaining justice? you must allow that the accusation is either true or false. but, supposing it true that the king did amiss in prorogating the parliament, the common council of london, neither by charter nor prescription, had any right to control him. if the matter were not true, (as it is not,) the petition is a mere calumny. but if you could justify the presenting of the petition, how can you justify the printing of it, whereby the mayor, aldermen, and citizens of london do let all the nation know that the king, by the prorogation of parliament, hath given the public justice of the nation an interruption? pray, by what law, or custom, or charter, is this privilege of censure exercised? you stand forth as 'chartered libertines.' as for the _impeccability_ of the corporation, and your doctrine that nothing which it does can affect its being, strange would be the result if that which the corporation does is not the act of the corporation, and if, the act being unlawful and wicked, the corporation shall be dispunishable. i tell you, i deliver no opinion now; i only mention some points worthy of consideration. let the case be argued again next term." in the ensuing term the case was again argued by sawyer, the attorney general, for the crown, and pollexfen for the city, when lord chief justice saunders said, "we shall take time to be advised of our opinion, but i cannot help now saying what a grievous thing it would be if a corporation cannot be forfeited or dissolved for any crime whatsoever. then it is plain that you oust the king of his _quo warranto_, and that, as many corporations as there are, so many independent commonwealths are established in england. we shall look into the precedents, and give judgment next term." when next term arrived, the lord chief justice saunders was on his death-bed. his course of life was so different from what it had been, and his diet and exercise so changed, that the constitution of his body could not sustain it, and he fell into an apoplexy and palsy from which he never recovered. but before his illness he had secured the votes of his brethren. the judgment of the court was pronounced by mr. justice jones,[ ] the senior puisne judge, who said,-- "several times have we met and had conference about this matter, and we have waited on my lord saunders during his sickness often; and upon deliberation, we are unanimously of opinion that a corporation aggregate, such as the city of london, may be forfeited and seized into the king's hands, on a breach of the trust reposed in it for the good government of the king's subjects; that to assume the power of making bylaws to levy money is a just cause of forfeiture; and that the petition in the pleadings mentioned is so scandalous to the king and his government that it is a just cause of forfeiture. therefore, this court doth award that the liberties and franchises of the city of london be seized into the king's hand." this judgment was considered a prodigious triumph, but it led directly to the misgovernment which in little more than five years brought about the revolution and the establishment of a new dynasty. to guard against similar attempts in all time to come, the charters, liberties, and customs of the city of london were then confirmed, and for ever established, by act of parliament. saunders was chief justice so short a time, and this was so completely occupied with the great _quo warranto_ case, that i have little more to say of him as a judge. we are told that "while he sat in the court of king's bench he gave the rule to the general satisfaction of the lawyers." we have the account of only one trial before him at _nisi prius_, that of _pilkington, lord grey de werke, and others_, for a riot. before the city of london was taken by a regular siege, an attempt had been made upon it by a _coup de main_. the scheme was to prevent the regular election of sheriffs, and to force upon the city the two court candidates, who had only a small minority of electors in their favor. in spite of violence used on their behalf, the poll was going in favor of the liberal candidates, when the lord mayor, who had been gained over by the government, pretended to adjourn the election to a future day. the existing sheriffs, who were the proper officers to preside, continued the poll, and declared the liberal candidates duly elected. nevertheless, the court candidates were sworn in as sheriffs, and those who had insisted on continuing the election after the pretended adjournment by the lord mayor were prosecuted for a riot.[ ] they pleaded not guilty, and a jury to try them having been summoned by the new sheriffs, the trial came on at guildhall before lord chief justice saunders. he was then much enfeebled in health, and the excitement produced by it was supposed to have been the cause of the fatal malady by which he was struck a few days after. the jury being called, the counsel for the defendants put in _a challenge to the array_, on the ground that the supposed sheriffs, by whom the jury had been returned, were not the lawful sheriffs of the city of london, and had an interest in the question. _l. c. j. saunders._--"gentlemen, i am sorry you should have so bad an opinion of me, and think me so little of a lawyer, as not to know that this is but trifling, and has nothing in it. pray, gentlemen, do not put these things upon me." _mr. thompson._--"i desire it may be read, my lord." _l. c. j. saunders._--"you would not have done this before another judge; you would not have done it if sir matthew hale had been here. there is no law in it." _mr. thompson._--"we desire it may be read." _l. c. j. saunders._--"this is only to tickle the people." the challenge, however, was read. _jeffreys._--"here is a tale of a tub indeed!" _l. c. j. saunders._--"ay, it is nothing else, and i wonder that lawyers should put such a thing upon me." _mr. thompson._--"my lord, we desire this challenge should be allowed." _l. c. j. saunders._--"no, indeed, won't i. there is no color for it." _mr. thompson._--"my lord, is the fact true or false? if it be insufficient in point of law, let them demur." _jeffreys._--"'robin hood on greendale stood'!!! i pray for the king that it may be overruled." _mr. thompson._--"my lord, i say where a sheriff is interested in point of title, he is no person in law to return a jury. the very title to the office is here in question." _l. c. j. saunders._--"mr. thompson, methinks you have found out an invention, that the king should never have power to try it even so long as the world stands. who would you have the process go to?" _mr. thompson._--"to the coroner." _l. c. j. saunders._--"my speech is but bad; let me know what objection is made, and if i can but retain it in my memory, i don't question but to give you satisfaction. the sheriffs who returned the jury are sheriffs _de facto_, and their title cannot thus be inquired into. wherever the defendant thinks it may go hard with him, are we to have a trial whether the sheriffs be sheriffs or no? what you are doing may be done in every cause that may be trying." _mr. thompson._--"my lord, we pray a bill of exceptions." _jeffreys._--"this discourse is only for discourse sake. swear the jury." _l. c. j. saunders._--"ay, swear the jury." so far, he was right in point of law; but, when the trial proceeded upon the merits, to suit the purposes of the government and to obtain a conviction he laid down doctrines which he must well have known to be indefensible respecting the power of the lord mayor to interrupt the poll by an adjournment, and the supposed offence of the electors in still continuing the election, they believing that they were exercising a lawful franchise. finally, in summing up to the jury, he observed,-- "but they pretend that the sheriffs were the men, and that the lord mayor was nobody; that shows that it was somewhat of the commonwealth seed that was like to grow up among the good corn." [here the report says, _the people hummed and interrupted my lord_. he thus continued.] "pray, gentlemen, that is a very indecent thing; you put an indignity upon the king. pray, gentlemen, forbear; such demeanor does not become a court of justice. when things were topsy turvy i can't tell what was done, and i would be loth to have it raked up now. these defendants tell you that they believed they were acting according to law; but ignorance of the law is now no excuse, and you will consider whether they did not in a tumultuary way make a riot to set up a magistracy by the power of the people? gentlemen, it hath been a long trial, and it may be i have not taken it well; my memory is bad, and i am but weak. i don't question but your memories are better than mine. consider your verdict, and find as many guilty as you think fit." the jury having been carefully packed, the defendants were all found guilty, and they were heavily fined; but after the revolution this judgment was reversed by the legislature. during lord chief justice saunders's last illness, the ryehouse plot was discovered, and it was a heavy disappointment to the government that no further aid could be expected from him in the measures still contemplated for cutting off the whig leaders and depressing the whig party. his hopeless condition being ascertained, he was deserted and neglected by all his whitehall patrons, who had lately been so attentive to him, and he received kindness only from humble dependents and some young lawyers, who, notwithstanding all his faults, had been attached to him from his singular good humor. a few minutes after ten o'clock in the forenoon of tuesday, the th of june, , he expired in a house at parson's green, to which he had unwillingly transferred himself from butcher row when promoted to be chief justice. his exact age was not known, but he was not supposed to be much turned of fifty, although a stranger who saw him for the first time would have taken him to be considerably more advanced in life. of his appearance, his manners, and his habits, we have, from one who knew him intimately, the following graphic account, which it would be a sin to abridge or to alter,-- "as to his person, he was very corpulent and beastly--a mere lump of morbid flesh. he used to say, 'by his _troggs_, (such a humorous way of talking he affected,) none could say he wanted issue of his body, for he had nine in his back.' he was a fetid mass that offended his neighbors at the bar in the sharpest degree. those whose ill fortune it was to stand near him were confessors, and in summer time almost martyrs. this hateful decay of his carcass came upon him by continual sottishness; for, to say nothing of brandy, he was seldom without a pot of ale at his nose or near him. that exercise was all he used; the rest of his life was sitting at his desk or piping at home; and that _home_ was a tailor's house, in butcher row, called his lodging, and the man's wife was his nurse or worse; but by virtue of his money, of which he made little account, though he got a great deal, he soon became master of the family; and being no changeling, he never removed, but was true to his friends and they to him to the last hour of his life. with all this, he had a goodness of nature and disposition in so great a degree that he may be deservedly styled a _philanthrope_. he was a very silenus to the boys, as in this place i may term the students of the law, to make them merry whenever they had a mind to it. he had nothing of rigid or austere in him. if any near him at the bar grumbled at his stench, he ever converted the complaint into content and laughing with the abundance of his wit. as to his ordinary dealing, he was as honest as the driven snow was white; and why not, having no regard for money or desire to be rich? and for good nature and condescension, there was not his fellow. i have seen him, for hours and half hours together, before the court sat, stand at the bar, with an audience of students over against him, putting of cases, and debating so as suited their capacities and encouraged their industry. and so in the temple, he seldom moved without a parcel of youths hanging about him, and he merry and jesting with them. once, after he was in the king's business, he dined with the lord keeper, and there he showed another qualification he had acquired, and that was to play jigs upon a harpsichord, having taught himself with the opportunity of an old virginal of his landlady's; but in such a manner, not for defect but figure, as to see him was a jest." his reports are entertaining as well as instructive.[ ] notwithstanding his carelessness about money, he left considerable property behind him. chapter xv. george jeffreys.[ ] george jeffreys was a younger son of john jeffreys, esq., of acton, near wrexham, in denbighshire, a gentleman of a respectable welsh family, and of small fortune. his mother was a daughter of sir thomas ireland, knight, of the county palatine of lancaster. never was child so unlike parents; for they were both quiet, sedate, thrifty, unambitious persons, who aspired not higher than to be well reputed in the parish in which they lived, and decently to rear their numerous offspring. some imputed to the father a niggardly and covetous disposition; but he appears only to have exercised a becoming economy, and to have lived at home with his consort in peace and happiness till he was made more anxious than pleased by the irregular advancement of his boy george. it is said that he had an early presentiment that this son would come to a violent end; and was particularly desirous that he should be brought up to some steady trade, in which he might be secured from temptation and peril. he was born in his father's lowly dwelling at acton in the year . he showed, from early infancy, the lively parts, the active temperament, the outward good humor, and the overbearing disposition which distinguished him through life. he acquired an ascendancy among his companions in his native village by coaxing some and intimidating others, and making those most opposed to each other believe that he favored both. at marbles and leap-frog he was known to take undue advantages; and nevertheless, he contrived, notwithstanding secret murmurs, to be acknowledged as "master of the revels." while still young, he was put to the free school at the town of shrewsbury, which was then considered a sort of metropolis for north wales. here he continued for two or three years; but we have no account how he demeaned himself. at the end of this time his father, though resolved to bind him apprentice to a shopkeeper in wales, sent him for a short time to st. paul's school, in the city of london. the sight of the metropolis had a most extraordinary effect upon the mind of this ardent youth, and exceedingly disgusted him with the notion of returning into denbighshire, to pass his life in a small provincial town as a mercer. on the first sunday in every term he saw the judges and the serjeants come in grand procession to st. paul's cathedral, and afterwards go to dine with the lord mayor--appearing little inferior to this great sovereign of the city in power and splendor. he heard that some of them had been poor boys like himself, who had pushed themselves on without fortune or friends; and though he was not so presumptuous as to hope, like another whittington, to rise to be lord mayor, he was resolved that he would be lord chief justice or lord chancellor. now it was that he acquired whatever scholarship he ever possessed. jeffreys applied with considerable diligence to greek and latin, though occasionally flogged for idleness and insolence. he at last ventured to disclose his scheme of becoming a great lawyer to his father, who violently opposed it, as wild and romantic and impossible, and who inwardly dreaded that, from involving him in want and distress, it might lead to some fatal catastrophe. he wrote back to his son, pointing out the inability of the family to give him a university education, or to maintain him at the inns of court till he should have a chance of getting into practice--his utter want of connections in london, and the hopelessness of his entering into a contest in an overstocked profession with so many who had the advantage of superior education, wealth, and patronage. although the aspirant professed himself unconvinced by these arguments, and still tried to show the certainty of his success at the bar, he must have stood a crop-eared apprentice behind a counter in denbigh, ruthyn, or flint, if it had not been for his maternal grandmother, who was pleased to see the blood of the irelands break out, and who, having a small jointure, offered to contribute a part of it for his support. the university was still beyond their means; but it was thought this might be better dispensed with if he should be for some time at one of the great schools of royal foundation, where he might form acquaintances afterwards to be useful to him. the father reluctantly consented, in the hope that his son would soon return to his sober senses, and that the project would be abandoned with the general concurrence of the family. meanwhile young george was transferred to westminster school, then under the rule of the celebrated busby. there is reason to fear that the zeal for improvement which he had exhibited at st. paul's soon left him, and that he here began to acquire those habits of intemperance which afterwards proved so fatal to him. his father hearing of these had all his fears revived, and when the boy was at acton during the holidays, again tried in vain to induce him to become a tradesman. but finding all dissuasions unavailing, the old gentleman withdrew his opposition, giving him a gentle pat on the back, accompanied by these words--"ah, george, george, i fear thou wilt die with thy shoes and stockings on!" yet the wayward youth, while at westminster, had fits of application, and carried away from thence a sufficient stock of learning to prevent him from appearing in after-life grossly deficient when any question of grammar arose. he was fond of reminding the world of the great master under whom he had studied. his confidence in his own powers was so great, that, without conforming to ordinary rules, he expected to overcome every obstacle. being now in the neighborhood of westminster hall, his ambition to be a great lawyer was inflamed by seeing the grand processions on the first day of term, and by occasionally peeping into the courts when an important trial was going forward. when he was actually lord chancellor, he used to relate that, while a boy at westminster school, he had a dream, in which a gipsy read his fortune, foretelling "that he should be the chief scholar there, and should afterwards enrich himself by study and industry, and that he should come to be the second man in the kingdom, but in conclusion should fall into disgrace and misery." he was now sixteen, an age after which it was not usual to remain at school in those days. a family council was called at acton, and as george still sanguinely adhered to the law, it was settled that, the university being quite beyond their reach, he should immediately be entered at an inn of court; that, to support him there, his grandmother should allow him forty pounds a year, and that his father should add ten pounds a year for decent clothing. on the th of may, , to his great joy, he was admitted a member of the inner temple. he got a small and gloomy chamber, in which, with much energy, he began his legal studies. he not only had a natural boldness of eloquence, but an excellent head for law. with steadiness of application he would have greatly excelled lord keeper guilford, and in the mastery of this science would have rivalled lord hale and lord nottingham. but he could not long resist the temptations of bad company. having laid in a very slender stock for a counsel or a judge, he forsook littleton and plowden, "moots and readings," for the tavern, where was his chief delight. he seems to have escaped the ruinous and irreclaimable vice of gaming, but to have fallen into all others to which reckless templars were prone. nevertheless, he had ever a keen eye to his own interest; and in these scenes of dissipation he assiduously cultivated the acquaintance of young attorneys and their clerks, who might afterwards be useful to him. when they met over a bowl of punch at the devil tavern, or some worse place, he charmed them with songs and jokes, and took care to bring out before them, opportunely, any scrap of law which he had picked up, to impress them with the notion that, when he put on his gown and applied to business, he should be able to win all the causes in which he might be retained. he was exceedingly popular, and he had many invitations to dinner; which, to make his way in the world, he thought it better to accept than to waste his time over the midnight oil in acquiring knowledge which it might never be known that he possessed. after the first fervor of loyalty which burst out at the restoration had passed away, a malcontent party was formed, which gradually gained strength. in this, most of the aspiring young lawyers, not actually employed by the government, were ranged--finding it politic to begin in "the sedition line," that their value might be better appreciated by the court, and a better price might be bid for them. from such reasoning, or perhaps from accidental circumstances, jeffreys associated himself with the popular leaders, and in the hour of revelry would drink on his knees any toasts to "the good old cause," and to "the immortal memory of old noll." he was often put to great shifts from the embarrassed state of his finances, the ten pounds for "decent clothing" for a year being expended in a single suit of cut velvet, and his grandmother's forty pounds being insufficient to pay his tavern bills. but he displayed much address in obtaining prolonged and increased credit from his tradesmen. he borrowed adroitly; and it is said that such an impression was made by his opening talents, that several wealthy men on the popular side voluntarily made him presents of money, in the hope of the important services they were speedily to receive from his support. it is very much to be regretted that we have not from a roger north more minute information with respect to the manner in which his character was formed, and his abilities were cultivated. he seems to have been a most precocious young man. while still in his twentieth year, he was not only familiarly acquainted with the town, and completely a man of the world, exciting confident expectations of great future eminence, but he was already received among veteran statesmen as a member of an important party in the state, consulted as to their movements, and regarded as their future leader. after keeping all his terms, and doing all his exercises, he was regularly called to the bar on the d day of november, --having been on the books of the society five years and six months--the requisite period of probation having been previously, by a general regulation, reduced from seven to the present period of five years. although he does not ever appear to have been chosen "reader" or "treasurer" of the society, yet in the year , on being elected recorder of london, he was made a bencher, and he continued to be so till he took the coif, when he necessarily left it for serjeants' inn. during his early career he was involved in difficulties, which could only have been overcome by uncommon energy. pressed by creditors, and at a loss to provide for the day that was passing over him, he had burdened himself with the expenses of a family. but this arose out of a speculation, which, in the first instance, was very prudent. being a handsome young fellow, and capable of making himself acceptable to modest women, notwithstanding the bad company which he kept, he resolved to repair his fortunes by marrying an heiress; and he fixed upon the daughter of a country gentleman of large possessions, who, on account of his agreeable qualities, had invited him to his house. the daughter, still very young, was cautiously guarded, and almost always confined to her chamber; but jeffreys contrived to make a confidant and friend of a poor relation of hers, who was the daughter of a country parson, and lived with her as a companion. through this agency he had established a correspondence with the heiress, and an interest in her affections, so that on his last visit she had agreed, if her father's consent could not be obtained, to elope with him. what was his disappointment, soon after his return to his dismal chamber in the inner temple, which he had hoped soon to exchange for a sumptuous manor-house, to receive a letter from the _companion_, informing him "that his correspondence with the _heiress_ had been discovered by the old father, who was in such a rage, that locking up her cousin, he had instantly turned herself out of doors, and that having taken shelter in the house of an acquaintance in holborn, she was there in a state of great destitution and distraction, afraid to return to her father, or to inform him of what had happened." the conduct of jeffreys on this occasion may be truly considered the brightest passage in his history. he went to her, found her in tears, and considering that he had been the means of ruining her prospects in life, (to say nothing of her being much handsomer than her rich cousin,) he offered her his hand. she consented. her father, notwithstanding the character and circumstances of his proposed son-in-law, out of regard to his daughter's reputation, sanctioned their union, and to the surprise of all parties, gave her a fortune of three hundred pounds. she made an excellent wife, and i do not find any complaint of his having used her ill till near the time of her death, a few years after, when he had cast his affections upon the lady who became the second mrs. jeffreys. meanwhile he left her at her father's, occasionally visiting her; and he continued to carry on his former pursuits, and to strengthen his connections in london, with a view to his success at the bar, on which he resolutely calculated with unabated confidence. he was not disappointed. never had a young lawyer risen so rapidly into practice. but he cut out a new line for himself. instead of attending in westminster hall to take notes in law french of the long-winded arguments of serjeants and eminent counsel, where he would have had little chance of employment, he did not go near any of the superior courts for some years, but confined himself to the old bailey, the london sessions, and hicks's hall. there he was soon "the cock of the walk." some of his pot companions were now of great use to him in bringing him briefs, and recommending him to business. all this pushing would have been of little avail if he had not fully equalled expectation by the forensic abilities which he displayed. he had a very sweet and powerful voice, having something in its tone which immediately fixed the attention, so that his audience always were compelled to listen to him, irrespective of what he said. "he was of bold aspect, and cared not for the countenance of any man." he was extremely voluble, but always perspicuous and forcible, making use of idiomatic, and familiar, and colloquial, and sometimes of coarse language. he never spared any assertion that was likely to serve his client. he could get up a point of law so as to argue it with great ability, and with the justices, as well as with juries, his influence was unbounded. he was particularly famous for his talent in cross-examination, indulging in ribaldry and banter to a degree which would not now be permitted. the audience being ever ready to take part with the persecuted witness, the laugh was sometimes turned against him. it is related that, about this time, beginning to cross-examine a witness in _a leathern doublet_, who had made out a complete case against his client, he bawled forth--"you fellow in the leathern doublet, pray what have you for swearing?" the man looked steadily at him, and "truly, sir," said he, "if you have no more for lying than i have for swearing, you might wear a leathern doublet as well as i." this blunt reply got to the west end of the town, and was remembered among the courtiers against jeffreys when he grew to be a great man. while a trial was going on, he was devotedly earnest in it; but when it was over, he would recklessly get drunk, as if he never were to have another to conduct. coming so much in contact with the aldermen, he ingratiated himself with them very much, and he was particularly patronized by a namesake (though no relation) of his own--jeffreys, alderman of bread street ward, who was very wealthy, a great smoker, (an accomplishment in which the lawyer could rival him, as well as in drinking,) and who had immense influence with the livery. pushed by him, or rising rapidly by his own buoyancy, our hero, before he had been two years and a half at the bar, and while only twenty-three years of age, was elected common serjeant of the city of london--an office which has raised a denman as well as a jeffreys to be chief justice of england. this first step of his elevation he obtained on the th of march, . but his ambition was only inflamed by this promotion, which disqualified him for a considerable part of his bar practice, and he resolved entirely to change the field of his operations, making a dash at westminster hall. he knew well that he could not be employed to draw declarations and pleas, or to argue demurrers or special verdicts; but he hoped his talent for examining witnesses and for speaking might avail him. at any rate, this was the only road to high distinction in his profession, and he spurned the idea of spending his life in trying petty larcenies, and dining with the city companies. hard drinking was again his grand resource. he could now afford to invite the great city attorneys to his house as well as carouse with them at taverns, and they were pleased with the attentions of a rising barrister as well as charmed with the pleasantry of the most jovial of companions. he likewise began to cultivate fashionable society, and to consider how he might contrive to get an introduction at court. "he put himself into all companies, for which he was qualified by using himself to drink hard." now was the time when men got forward in life by showing their hatred of puritanism, their devotion to church and king, and an affectation of vice, even if actually free from it. yet such was the versatility of jeffreys, that for the nonce he could appear sanctimonious, and even puritanical. thus he deceived the religious, the moral, the immaculate sir matthew hale, then chief justice of the king's bench. roger north, in drawing the character of this extraordinary man, says,--"although he was very grave in his own person, he loved the most bizarre and irregular wits in the practice of the law before him most extravagantly. so sir george jeffreys gained as great an ascendant in practice over him as ever counsel had over a judge." as a king's bench practitioner, jeffreys was first employed at nisi prius in actions for assaults and defamation; but before long the city attorneys gave him briefs in commercial causes tried at guildhall, and though in _banc_ he could not well stand up against regularly-bred lawyers, like sir francis north, sir william jones, sir creswell levinz, and heneage finch, the son of the lord chancellor nottingham, he was generally equal to them before a jury, and he rapidly trod upon their heels. he anxiously asked himself how he was to climb to high office. he had started with the disaffected party, and they had been of essential use to him; but though they were growing in strength, no chance existed of their being able to make attorney generals, chief justices, or chancellors. at the same time he did not like yet to break with those who might still serve him--particularly in obtaining the recordership, which he coveted as a stepping stone to something better. he resolved so to manage as to be a favorite of both parties till he could devote himself entirely, and exclusively, and openly to the one which should be dominant; and he again succeeded. from his well-known influence in the city he found no difficulty in making the acquaintance of will chiffinch, "the trusty page of the back stairs," who, besides other employments of a still more confidential nature, was intrusted by charles ii. to get at the secrets of all men of any consequence in every department of life. "this mr. chiffinch," says roger north, "was a true secretary as well as page, for he had a lodging at the back stairs, which might have been properly termed 'the spy office,' where the king spoke with particular persons about intrigues of all kinds; and all little informers, projectors, &c., were carried to chiffinch's lodging. he was a most impetuous drinker, and in that capacity an admirable spy; for he let none part with him sober, if it were possible to get them drunk, and his great artifice was pushing idolatrous healths of his good master, and being always in haste; _for the king is coming_; which was his word. being an hercules well breathed at the sport himself, he commonly had the better, and so fished out many secrets, and discovered men's characters, which the king could never have obtained the knowledge of by any other means. it is likely that jeffreys, being a pretender to main feats with the citizens, might forward himself, and be entertained by will chiffinch, and that which at first was mere spying turn to acquaintance, if not friendship, such as is apt to grow up between immense drinkers, and from thence might spring recommendations of him to the king, as the most useful man that could be found to serve his majesty in london." thus, while mr. common serjeant was caballing in the city with lord shaftesbury, who had established himself in aldersgate street, and talked of becoming lord mayor, he had secretly got a footing at court, and by assurances of future services disposed the government to assist him in all his jobs. his opposition friends were a little startled by hearing that he had been made solicitor to the duke of york; but he assured them that this was merely a professional employment, unconnected with politics, which, according to professional etiquette, he could not decline; and when he was knighted as a mark of royal favor, with which he was silly enough to be much tickled, he said that he was obliged reluctantly to submit to the degradation as a consequence of his employment. by some mischance, which is not explained, he missed the office of recorder on the vacancy occasioned by the resignation of sir john howel, who so outraged public decency on the trial of penn and mead; but sir william dolbein, the successful candidate, being made a judge on the d of october, , jeffreys was then elected his successor. upon this occasion there were three other candidates; but he was so warmly supported by both parties in politics, that they all withdrew before the day of nomination, and he is said in the city records to have been "freely and unanimously elected." the new recorder had hardly been sworn in, when feeling that the liberals could do nothing more for him, he utterly cast them off, becoming for the rest of his life the open, avowed, unblushing slave of the court, and the bitter, persecuting, and unappeasable enemy of the principles he had before supported, and of the men he had professed to love. he entirely forsook thanet house, in aldersgate street, and all the meetings of the whigs in the city; and instead of secret interviews with will chiffinch in the "spy office," he went openly to court, and with his usual address, he contrived, by constant assiduities and flatteries, to gain the good graces both of nell gwyn and of the duchess of portsmouth, who, since the fall of lady castlemaine, held divided empire at whitehall, balancing the roman catholic and protestant parties. to each of these ladies, it would appear from the libels of the day, his rise was attributed. however, not long after he had openly ratted, an accident happened that had like to have spoiled all his projects; and that was the breaking out of the popish plot. although there is no reasonable ground for saying that it was contrived by shaftesbury, he made such skilful and unscrupulous use of it, that suddenly, from appearing the leader of a small, declining, and despairing party, he had the city and the nation at his beck, and with a majority in both houses of parliament, there seemed every probability that he would soon force himself upon the king, and have at his disposal all the patronage of the government. jeffreys was for some time much disconcerted, and thought that once in his life he had made a false move. he was utterly at a loss how to conduct himself, and his craft never was put to so severe a trial. being called into council, he recommended that the government should profess to credit the plot, and should outvie the other side in zeal for the protestant religion, but should contrive to make shaftesbury answerable for the reality of the conspiracy; so that, if hereafter it should blow up, or the people should get tired of it, all that was done to punish the supposed authors of it might be laid to his account. he immediately began diligently to work the popish plot according to his own scheme. coleman, whitbread, ireland, and all whom oates and bedloe accused being committed to prison, it was resolved to prosecute them for high treason in having compassed the death of the king, as well as the overthrow of the protestant religion; and their trials were conducted by the government as state trials, partly at the bar of the court of king's bench, and partly at the old bailey. in the former jeffreys acted as a counsel, in the latter as a judge. it is asserted, and not improbably, that he had a real horror of popery, which, though he could control it in the presence of the duke of york, and when his interest required, at other times burst out with sincerity as well as fierceness. scroggs presided at the old bailey, but jeffreys whetted his fury by telling him that the king was a thorough believer in the plot, and by echoing his expressions; as, when the chief justice said to the jury, "you have done like honest men," he exclaimed in a stage whisper, "they have done like honest men." as mouthpiece of the lord mayor, the head of the commission, after conviction he had the pleasing duty of passing sentence of death by the protracted tortures which the law of treason prescribed. he had a still greater treat in passing the like sentence on richard langhorne, an eminent catholic barrister, with whom he had been familiarly acquainted. he first addressed generally the whole batch of the prisoners convicted, whom he thus continues to upbraid for trying to root out "the best of religions:" "i call it the best of religions, even for your sakes; for had it not been for the sake of our religion, that teaches us not to make such requitals as yours seems to teach you, you had not had this fair, formal trial, but murder would have been returned to you for the murder you intended to commit both upon the king and most of his people. what a strange sort of religion is that whose doctrine seems to allow them to be the greatest saints in another world who have been the most impudent sinners in this! murder and the blackest of crimes were the best means among you to get a man to be canonized a saint hereafter." then he comes to his brother lawyer--"there is one gentleman that stands at the bar whom i am very sorry to see, with all my heart, in this condition, because of some acquaintance i have had with him heretofore. to see that a man who hath understanding in the law, and who hath arrived at so great an eminency in that profession as this gentleman hath done, should not remember that it is not only against the rules of christianity, but even against the rules of his profession, to attempt any injury against the person of the king! he knows it is against all the rules of law to endeavor to introduce a foreign power into this land. so that you have sinned both against your conscience and your own certain knowledge." last of all, he offers his friend the assistance of a protestant divine to prepare him for a speedy departure, and, referring him to the statute whereby the ministration of a catholic priest is made illegal, he himself, though "a layman," gives him some "pious advice." he had carried the sympathies of his audience along with him, for, when he had concluded with the "quartering," he was greeted with a loud shout of applause. thus, by the powerful assistance of the recorder, did the government obtain popularity for prosecuting the plot, till the people at last actually did get tired of it, and shaftesbury was prevented from deriving any fruit from it beyond the precarious tenure, for a few months, of his office of president of the council. the recorder was equally zealous, on all other occasions, to do what he thought would be agreeable at court. with the view of repressing public discussion, he laid down for law, as he said, on the authority of all the judges, "that no person whatsoever could expose to the public knowledge any thing that concerned the affairs of the public without license from the king, or from such persons as he may think fit to intrust with that power." the grand jury having several times returned "_ignoramus_" to an indictment against one smith for a libel, in respect of a very innocent publication, though they were sent out of court to reconsider the finding, he at last exclaimed, "god bless me from such jurymen. i will see the face of every one of them, and let others see them also." he accordingly cleared the bar, and, calling the jurymen one by one, put the question to them, and made each of them repeat the word "_ignoramus_." he then went on another tack, and addressing the defendant, said, in a coaxing tone, "come, mr. smith, there are two persons besides you whom this jury have brought in _ignoramus_; but they have been ingenuous enough to confess, and i cannot think to fine them little enough; they shall be fined twopence for their ingenuity in confessing. well, come, mr. smith, we know who hath formerly owned both printing and publishing this book." _smith._--"sir, my ingenuity hath sufficiently experienced the reward of your severity; and, besides, i know no law commands me to accuse myself; neither shall i; and the jury have done like true englishmen and worthy citizens, and blessed be god for such a jury." jeffreys was furious, but could only vent his rage by committing the defendant till he gave security for his good behavior. such services were not to go unrewarded. it was the wish of the government to put the renegade jeffreys into the office of chief justice of chester, so often the price of political apostasy; but sir job charlton, a very old gentleman, who now held it, could not be prevailed upon voluntarily to resign, for he had a considerable estate in the neighborhood, and was loath to be stripped of his dignity. jeffreys, supported by the duke of york, pressed the king hard, urging that "a welshman ought not to judge his countrymen," and a message was sent to sir job that he was to be removed. the old gentleman was imperfectly consoled with the place of puisne judge of the common pleas, which, in the reign of james ii., he was subsequently allowed to exchange for his beloved chester. meanwhile he was succeeded by jeffreys, "more welshman than himself," who was at the same time made counsel for the crown, at ludlow, where a court was still held for wales. immediately afterwards, the new chief justice was called to the degree of the coif, and made king's serjeant, whereby he had precedence in westminster hall of the attorney and solicitor general. the motto on his rings, with great brevity and point, inculcated the prevailing doctrines of divine right and passive obedience--"_a deo rex, a rege lex_." as a further mark of royal favor, there was conferred upon him the hereditary dignity of a baronet. he still retained the recordership of london, and had extensive practice at the bar. the great prosperity which jeffreys now enjoyed had not the effect which it ought to have produced upon a good disposition, by making him more courteous and kind to others. when not under the sordid dread of injuring himself by offending superiors, he was universally insolent and overbearing. being made chief justice of chester, he thought that all puisne judges were beneath him, and he would not behave to them with decent respect, even when practising before them. at the kingston assizes, baron weston having tried to check his irregularities, he complained that he was not treated like a counsellor, being curbed in the management of his brief. _weston, b._--"sir george, since the king has thrust his favors upon you, and made you chief justice of chester, you think to run down every body; if you find yourself aggrieved, make your complaint; here's nobody cares for you." _jeffreys._--"i have not been used to make complaints, but rather to stop those that are made." _weston, b._--"i desire, sir, that you will sit down." he sat down, and is said to have wept with anger. his intemperate habits had so far shaken his nerves, that he shed tears very freely on any strong emotion. we may be prepared for his playing some fantastic tricks before his countrymen at chester, where he was subject to no control; but the description of his conduct there by lord delamere, (afterwards earl of warrington,) in denouncing it in the house of commons, must surely be overcharged:-- "the county for which i serve is cheshire, which is a county palatine; and we have two judges peculiarly assigned us by his majesty. our puisne judge i have nothing to say against; he is a very honest man, for aught i know; but i cannot be silent as to our chief judge; and i will name him, because what i have to say will appear more probable. his name is sir george jeffreys, who, i must say, behaved himself more like a jack-pudding than with that gravity which becomes a judge. he was witty upon the prisoners at the bar. he was very full of his jokes upon people that came to give evidence, not suffering them to declare what they had to say in their own way and method, but would interrupt them because they behaved themselves with more gravity than he. but i do not insist upon this, nor upon the late hours he kept up and down our city; it's said he was every night drinking till two o'clock, or beyond that time, and that he went to his chamber drunk; but this i have only by common fame, for i was not in his company; i bless god i am not a man of his principles and behavior; but in the mornings he appeared with the symptoms of a man that overnight had taken a large cup. that which i have to say is the complaint of every man, especially of them that had any lawsuits. our chief justice has a very arbitrary power in appointing the assize when he pleases, and this man has strained it to the highest point; for whereas we were accustomed to have two assizes, the first about april or may, the latter about september, it was this year the middle (as i remember) of august before we had any assize; and then he despatched business so well that he left half the causes untried; and, to help the matter, has resolved we shall have no more assizes this year." being tired of revelling in chester, he put a sudden end to his first assize there, that he might pay a visit to his native place; to which i am afraid he was less prompted by a pious wish to embrace his father, who had been so resolutely bent on making him a shopkeeper, and who, from the stories propagated about his conduct as a judge, still expressed some misgivings about him, as to dazzle his old companions with the splendor of his new state. accordingly he came with such a train that the cider barrels at acton ran very fast, and the larder was soon exhausted; whereupon the old gentleman, in a great fret, charged his son with a design to ruin him, by bringing a whole county at his heels, and warned him against again attempting the same prodigality. but a violent political storm now arose, which threatened entirely to overwhelm our hero, and from which he did not escape unhurt. in the struggle which arose from the long delay to assemble parliament, he had leagued himself strongly with the "abhorrers" against the "petitioners," and proceedings were instituted in the house of commons on this ground, against him along with chief justice scroggs and chief justice north. a petition from the city of london, very numerously signed, having been presented, complaining that the recorder had obstructed the citizens in their attempts to have parliament assembled for the redress of grievances, a select committee was appointed, who, having heard evidence on the subject, and examined him in person, presented a report, on which the following resolutions were passed:-- "that sir george jeffreys, recorder of the city of london, by traducing and obstructing petitioning for the sitting of this parliament, hath destroyed the right of the subject. "that an humble address be presented to his majesty, to remove sir george jeffreys out of all public offices. "that the members of this house serving for the city of london do communicate these resolutions to the court of aldermen for the said city." the king was stanch, and returned for answer to the address the civil refusal "that he would consider of it;"[ ] but jeffreys, who, where he apprehended personal danger, was "none of the intrepids," quailed under the charge, and, afraid of further steps being taken against him, came to an understanding that he should give up the recordership, which his enemies wished to be conferred upon their partisan, sir george treby. the king was much chagrined at the loss of such a valuable recorder, and said sarcastically that "he was not parliament-proof." but he was obliged to acquiesce, and jeffreys, having been reprimanded on his knees at the bar, was discharged. the address of speaker williams was very bitter, and caused deep resentment in the mind of jeffreys. on the d of december he actually did resign his office, and treby was chosen to succeed him. in a few days after there was exhibited one of lord shaftesbury's famous protestant processions, on the anniversary of the accession of queen elizabeth. in this rode a figure on horseback, to represent the ex-recorder, with his face to the tail, and a label on his back, "i am an abhorrer." at temple bar he was thrown into a bonfire, coupled with the devil; the preceding pair, who suffered the same fate, being sir roger l'estrange[ ] and the pope of rome. however, all these indignities endeared him to the court; and his pusillanimity was forgiven from the recollection of past and the hope of future services. a petition from the city being presented to the king at hampton court, he attended as a liveryman, though no longer the mouthpiece of the corporation, when he was treated with marked civility by charles, and detained to dinner, while the lord mayor and aldermen and the new recorder were sent off with a reprimand. to oblige the court, and to assist them in their criminal jobs, he accepted the appointment of chairman of the middlesex sessions at hicks's hall, although it was somewhat beneath his dignity, and it deprived him of a portion of his practice. here the grand jury were sworn in; and as they were returned by sheriffs whom the city of london elected, and who were still of the liberal party, the problem was to have them remodelled, so that they might find bills of indictment against all whom the government wished to prosecute. with this view, jeffreys declared that none should serve except true church of england men; and he ordered the under-sheriff to return a new panel purged of all sectarians. he had a particular spite against the presbyterians, who had mainly contributed to his being turned out of the recordership. the under-sheriff disobeying his summons, he ordered the sheriffs to attend next day in person; but in their stead came the new recorder, who urged that, by the privileges of the city of london, they were exempted from attending at hicks's hall. he overruled this claim with contempt, and fined the sheriffs one hundred pounds. it was found, however, that while the city retained the power of electing the sheriffs, all these attempts to pervert justice would be fruitless. jeffreys remained in a state of painful anxiety during charles's last westminster parliament, and during the few days of the oxford parliament. the popular party had such a majority in the house of commons, and seemed so powerful, that it is said the renegade again expressed deep regret that he had left them; but late at night, on monday, the th day of march, , news arrived in london, that early that morning the king had dissolved the parliament, and had declared his firm determination never to call another. if jeffreys was still sober, and got drunk that night, we ought to excuse him. now his talents were to be brought into full play. in the conflict, the ranks of the enemy being thrown into disorder, the brigade of the lawyers, who had been kept back as a reserve, was marched up to hang on their broken rear, insulting, and to sweep them from the field. first came on the trial of fitzharris for high treason. jeffreys, as counsel for the crown, argued the demurrer to the plea of the pendency of the impeachment; and then, having assisted the duchess of portsmouth to evade the questions which were put to her for the purpose of showing that the prisoner had acted under the king's orders, he addressed the jury with great zeal after the solicitor general, and was mainly instrumental in obtaining the conviction. next came the trial of archbishop plunkett, the roman catholic primate of ireland, in which jeffreys was so intemperate that the attorney general was obliged to check him, that the prisoner might have some show of fair play. but it was on the trial of college, "the protestant joiner,"[ ] that he gave the earliest specimen of his characteristic ribaldry, and his talent for jesting in cases of life and death, which shone out so conspicuously when he was lord chief justice of the king's bench. he began with strongly justifying the act of taking from the prisoner the papers he was to use in his defence, saying, that to allow him to see them would be "assigning counsel to him with a vengeance." a witness having stated that pistols were found in the prisoner's holsters when he was attending the city members at oxford, he exclaimed with a grin, "i think a _chisel_ might have been more proper for a _joiner_." there was called as a witness, by the prisoner, one lun, who, being a waiter at the devil tavern and a fanatic, had some years before been caught on his knees praying against the cavaliers, saying, "scatter them, good lord! scatter them!" from whence he had ever after borne the nickname of "scatter'em." jeffreys thus begins his cross-examination: "we know you, mr. lun; we only ask questions about you that the jury too may know you as well as we." _lun._--"i don't care to give evidence of any thing but the truth. i was never on my knees before the parliament for any thing." _jeffreys._--"nor i neither for much; yet you were once on your knees when you cried, 'scatter them, good lord!' was it not so, mr. scatter'em?" he had next an encounter with the famous titus oates, who was called by college, and who, when cross-examined by him, appealed to sir george jeffreys's own knowledge of a fact about which he was inquiring. _jeffreys._--"sir george jeffreys does not intend to be an evidence, i assure you." _dr. oates._--"i do not desire sir george jeffreys to be an evidence for me; i had credit in parliaments, and sir george had disgrace in one of them." _jeffreys._--"your servant, doctor; you are a witty man and a philosopher." he had his full revenge when the doctor himself was afterwards tried before him. we may judge of the councillor's general style of treating witnesses by his remark on the trial of lord grey de werke for carrying off the lady henrietta berkeley; when his objection was overruled to the competency of the young lady as a witness for the defendant, although she was not only of high rank and uncommon beauty, but undoubted veracity, he observed, "truly, my lord, we would prevent perjury if we could." we now come to transactions which strikingly prove the innate baseness of his nature in the midst of his pretended openness and jolly good humor. he owed every thing in life to the corporation of the city of london. the freemen, in the exercise of their ancient privileges, had raised him from the ground by electing him common serjeant and recorder, and to the influence he was supposed to have in the court of common council and in the court of aldermen must be ascribed his introduction to whitehall and all his political advancement. but when, upon the failure of the prosecution against lord shaftesbury, the free municipal constitution of the city became so odious to the government, he heartily entered into the conspiracy to destroy it. it is said that he actually suggested the scheme of having a sheriff nominated by the lord mayor, and he certainly took a very active part in carrying it into execution. on midsummer day, having planted lord chief justice north in his house in aldermanbury, that he might be backed by his authority, he himself appeared on the hustings in guildhall; and when the poll was going against the court candidates, illegally advised the lord mayor to dissolve the hall, and afterwards to declare them duly elected. he did every thing in his power to push on and to assist the great _quo warranto_, by which the city was to be entirely disfranchised.[ ] when success had crowned these efforts, and pilkington and shute, the former sheriffs, with alderman cornish and others, were to be tried before a packed jury for a riot at the election, finding that he had the game in his hand, his insolence knew no bounds. the defendants having challenged the array, on the ground that the sheriffs who returned the panel were not lawfully appointed,[ ] as soon as the challenge was read, he exclaimed, "here's a tale of a tub indeed!" the counsel for the defendants insisted that the challenge was good in law, and at great length argued for its validity. _jeffreys._--"robin hood upon greendale stood." _thompson, counsel for the defendants._--"if the challenge be not good, there must be a defect in it either in point of law or in point of fact. i pray that the crown may either demur or traverse." _jeffreys._--"this discourse is only for discourse sake. i pray the jury may be sworn." _lord chief justice saunders._--"ay, ay, swear the jury." the defendants were, of course, all found guilty; and as there were among them the most eminent of jeffreys's old city friends, he exerted himself to the utmost not only in gaining a conviction, but in aggravating the sentence. but this was only a case of misdemeanor, in which he could ask for nothing beyond fine and imprisonment. he was soon to be engaged in prosecutions for high treason against the noblest of the land, in which his savage taste for blood might be gratified. the ryehouse plot broke out, for which there was some foundation; and after the conviction of those who had planned it, lord russell was brought to trial at the old bailey, on the ground that he had consented to it. jeffreys, in the late state trials, had gradually been encroaching on the attorney and solicitor general, sir robert sawyer and sir heneage finch, and in lord russell's case, to which the government attached such infinite importance, he almost entirely superseded them. to account for his unexampled zeal, we must remember that the office of chief justice of the king's bench was still vacant, saunders having died a few months before, and lord keeper north having strongly opposed the appointment of jeffreys as his successor. these trials took place before a commission, at the head of which was placed pemberton, chief justice of the common pleas, to whom a chance was thus afforded of earning a reappointment to the chief justiceship of the king's bench, in which he had been superseded by saunders. the case of colonel walcot was taken first; and here there was no difficulty, for he had not only joined in planning an insurrection against the government, but was privy to the design of assassinating the king and the duke of york, and in a letter to the secretary of state he had confessed his complicity, and offered to become a witness for the crown. this trial was meant to prepare the public mind for that of lord russell, the great ornament of the whig party, who had carried the exclusion bill through the house of commons, and, attended by a great following of whig members, had delivered it with his own hand to the lord chancellor at the bar of the house of lords. in proportion to his virtues was the desire to wreak vengeance upon him. but the object was no less difficult than desirable, for he had been kept profoundly ignorant of the intention to offer violence to the royal brothers, from the certainty that he would have rejected it with abhorrence; and although he had been present when there were deliberations respecting the right and the expediency of resistance by force to the government after the system had been established of ruling without parliaments, he had never concurred in the opinion that there were no longer constitutional means of redress; much less had he concerted an armed insurrection. notwithstanding all the efforts made to return a prejudiced jury, there were serious apprehensions of an acquittal. pemberton, the presiding judge, seems to have been convinced that the evidence against him was insufficient; and although he did not interpose with becoming vigor, by repressing the unfair arts of jeffreys, who was leading counsel for the crown, and although he did not stop the prosecution, as an independent judge would do in modern times, he cannot be accused of any perversion of law; and, instead of treating the prisoner with brutality, as was wished and expected, he behaved to him with courtesy and seeming kindness. lord russell, on his arraignment at the sitting of the court in the morning, having prayed that the trial should be postponed till the afternoon, as a witness for him was absent, and it had been usual in such case to allow an interval between the arraignment and the trial, pemberton said, "why may not this trial be respited till the afternoon?" and the only answer being the insolent exclamation, "pray call the jury," he mildly added, "my lord, the king's counsel think it not reasonable to put off the trial longer, and we cannot put it off without their consent in this case." the following dialogue then took place, which introduced the touching display of female tenderness and heroism of the celebrated rachel, lady russell, assisting her martyred husband during his trial--a subject often illustrated both by the pen and the pencil. _lord russell._--"my lord, may i not have the use of pen, ink, and paper?" _pemberton._--"yes, my lord." _lord russell._--"my lord, may i not make use of any papers i have?" _pemberton._--"yes, by all means." _lord russell._--"may i have somebody write to help my memory?" _attorney general._--"yes, a servant." _lord russell._--"my wife is here, my lord, to do it." _pemberton._--"if my lady please to give herself the trouble." the chief justice admitted dr. burnet, dr. tillotson, and other witnesses, to speak to the good character and loyal conversation of the prisoner, and gave weight to their testimony, notwithstanding the observation of jeffreys that "it was easy to express a regard for the king while conspiring to murder him." lord russell had certainly been present at a meeting of the conspirators, when there was a consultation about seizing the king's guards; but he insisted that he came in accidentally, that he had taken no part in the conversation, and that he was not acquainted with their plans. the aspirant chief justice saw clearly where was the pinch of the case, and the attorney general, who was examining colonel rumsey, being contented with asking--"was the prisoner at the debate?" and receiving the answer "yes," jeffreys started up, took the witness into his own hands, and calling upon him to draw the inference which was for the jury, pinned the basket by this leading and highly irregular question--"did you find him averse to it or agreeing to it?" having got the echoing answer which he suggested, "_agreeing to it_," he looked round with exultation, and said, "if my lord russell now pleases to ask any questions, he may!" jeffreys addressed the jury in reply after the solicitor general had finished, and much outdid him in pressing the case against the prisoner, while he disclaimed with horror the endeavor to take away the life of the innocent. the jury retired, and the courtiers present were in a state of the greatest alarm; for against algernon sydney, who was to be tried next, the case was still weaker; and if the two whig chiefs, who were considered already cut off, should recover their liberty, and should renew their agitation, a national cry might be got up for the summoning of parliament, and a new effort might be made to rescue the country from a popish successor. these fears were vain. the jury returned a verdict of guilty, and lord russell expiated on the scaffold the crime of trying to preserve the religion and liberties of his country. jeffreys had all the glory of the verdict of guilty, and as the lord chief justice pemberton had rather flinched during this trial, and the attorney and solicitor general were thought men who would cry craven, and as the next case was not less important and still more ticklish, all objections to the proposed elevation of the favorite vanished, and he became chief justice of england, as the only man fit to condemn algernon sydney.[ ] the new chief justice was sworn in on the th of september, , and took his seat in the court of king's bench on the first day of the following michaelmas term. sydney's case was immediately brought on before him in this court, the indictment being removed by _certiorari_ from the old bailey, that it might be under his peculiar care. the prisoner wishing to plead some collateral matter, was told by the chief justice that, if overruled, sentence of death would immediately be passed upon him. though there can be no doubt of the illegality of the conviction, the charge against jeffreys is unfounded, that he admitted the ms. treatise on government to be read without any evidence of its having been written by the prisoner, beyond "similitude of hands." two witnesses, who were acquainted with his handwriting from having seen him indorse bills of exchange, swore that they believed it to be his handwriting, and they were corroborated by a third, who, with his privity, had paid notes purporting to be indorsed by him without any complaint ever being made. but the undeniable and ineffaceable atrocity of the case was the lord chief justice's doctrine, that "_scribere est agere_," and that therefore this ms. containing some abstract speculations on different forms of government written many years before, never shown to any human being, and containing nothing beyond the constitutional principles of locke and paley, was tantamount to the evidence of a witness to prove an overt act of high treason. "if you believe that this was colonel sydney's book, writ by him, no man can doubt that it is a sufficient evidence that he is guilty of compassing and imagining the death of the king. it fixes the whole power in the parliament and the people. the king, it says, is responsible to them; the king is but their trustee. gentlemen, i must tell you i think i ought more than ordinarily to press this upon you, because i know the misfortune of the late unhappy rebellion, and the bringing of the late blessed king to the scaffold, was first begun with such kind of principles. they cried he had betrayed the trust that was delegated to him by the people, so that the case rests not upon two but upon greater evidence than twenty-two witnesses, if you believe this book was writ by him." the chief justice having had the satisfaction of pronouncing with his own lips the sentence upon sydney, of death and mutilation, instead of leaving the task as usual to the senior puisne judge, a scene followed which is familiar to every one. _sydney._--"then, o god! o god! i beseech thee to sanctify these sufferings unto me, and impute not my blood to the country; let no inquisition be made for it, but if any, and the shedding of blood that is innocent must be revenged, let the weight of it fall only upon those that maliciously persecute me for righteousness sake." _lord c. j. jeffreys._--"i pray god work in you a temper fit to go unto the other world, for i see you are not fit for this." _sydney._--"my lord, feel my pulse [holding out his hand,] and see if i am disordered. i bless god i never was in better temper than i now am." by order of the chief justice, the lieutenant of the tower immediately removed the prisoner. a very few days after, and while this illustrious patriot was still lying under sentence of death, the lord chief justice jeffreys and mr. justice withins, who sat as his brother judge on the trial, went to a gay city wedding, where the lord mayor and other grandees were present. evelyn, who was of the party, tells us that the chief and the puisne both "danced with the bride and were exceeding merry." he adds, "these great men spent the rest of the afternoon until eleven at night in drinking healths, taking tobacco, and talking much beneath the gravity of judges, who had but a day or two before condemned mr. algernon sydney." the next exhibition in the court of king's bench which particularly pleased jeffreys and horrified the public, was the condemnation of sir thomas armstrong. this gentleman was outlawed while beyond the seas, and being sent from holland within the year, sought, according to his clear right in law, to reverse the outlawry.[ ] i have had occasion to reprobate the conduct of lord keeper north in refusing him his writ of error, and suffering his execution; but jeffreys may be considered the executioner. when brought up to the king's bench bar, armstrong was attended by his daughter, a most beautiful and interesting young woman, who, when the chief justice had illegally overruled the plea, and pronounced judgment of death under the outlawry, exclaimed, "my lord, i hope you will not murder my father." _chief justice jeffreys._--"who is this woman? marshal, take her into custody. why, how now? because your relative is attainted for high treason, must you take upon you to tax the courts of justice for murder when we grant execution according to law? take her away." _daughter._--"god almighty's judgments light upon you." _chief justice jeffreys._--"god almighty's judgments will light upon those that are guilty of high treason." _daughter._--"amen. i pray god." _chief justice jeffreys._--"so say i. i thank god i am clamor proof." [the daughter is committed to prison, and carried off in custody.] _sir thomas armstrong._--"i ought to have the benefit of the law, and i demand no more." _chief justice jeffreys._--"that you shall have, by the grace of god. see that execution be done on friday next, according to law. you shall have the full benefit of the law!" armstrong was hanged, embowelled, beheaded, and quartered accordingly. when jeffreys came to the king at windsor soon after this trial, "the king took a ring of good value from his finger and gave it to him for these services. the ring upon that was called his _blood stone_."[ ] in the reign of william and mary, armstrong's attainder was reversed. jeffreys was then out of reach of process, but for the share which sir robert sawyer had in it as attorney general, he was expelled the house of commons. jeffreys had now the satisfaction of causing an information to be filed against sir william williams for having, as speaker of the house of commons, under the orders of the house, directed the printing of "dangerfield's narrative,"[ ] the vengeful tyrant thus dealing a blow at once to an old enemy who had reprimanded him on his knees, and to the privileges of the house, equally the object of his detestation. he was in hopes of deciding the case himself, but he left it as a legacy to his successor, chief justice herbert, who, under his auspices, at once overruled the plea, and fined the defendant ten thousand pounds. not only was jeffreys a privy councillor, but he had become a member of the cabinet, where, from his superior boldness and energy, as well as his more agreeable manners, he had gained a complete victory over lord keeper north, whom he denounced as a "trimmer," and the great seal seemed almost within his grasp.[ ] to secure it, he still strove to do every thing he could devise to please the court, as if hitherto nothing base had been done by him. when, to his great joy, final judgment was entered up against the city of london on the _quo warranto_, he undertook to get all the considerable towns in england to surrender their charters on the threat of similar proceedings; and with this view, in the autumn of , he made a "campaign in the north," which was almost as fatal to corporations as that "in the west," the following year, proved to the lives of men. to show to the public the special credit he enjoyed at court, the london gazette, just before he set out, in reference to the gift bestowed upon him for the judgment against sir thomas armstrong, announced "that his majesty, as a mark of his royal favor, had taken a ring from his own finger and placed it on that of lord chief justice jeffreys." in consequence, although when on the circuit he forgot the caution against hard drinking, with which the gift had been accompanied, he carried every thing before him, "charters fell like the walls of jericho," and he returned laden with his hyperborean spoils. i have already related the clutch at the great seal which he then made, and his temporary disappointment.[ ] he was contented to "bide his time." there were only two other occasions when he had it in his power to pervert the law, for the purpose of pleasing the court, during the present reign. the first was on the trial of hampden, the grandson of the great hampden, for a trifling misdemeanor. although this young gentleman was only heir apparent to a moderate estate, and not in possession of any property, he was sentenced to pay a fine of forty thousand pounds--jeffreys saying that the clause in magna charta, "_liber homo non amercietur pro magno delicto nisi salvo contenemento suo_," does not apply to fines imposed by the king's judges. the other was the inquisition in the action of _scan. mag._ brought by the duke of york against titus oates, in which the jury, under his direction, awarded one hundred thousand pounds damages. ever since the disfranchisement of the city of london, the ex-recorder had ruled it with a rod of iron. he set up a nominal lord mayor and nominal aldermen; but, as they were entirely dependent upon him, he treated them with continual insolence. on the sudden death of charles ii., jeffreys no doubt thought the period was arrived when he must be rewarded for the peculiar zeal with which he had abandoned himself to the service of the successor; but he was at first disappointed, and he had still to "wade through slaughter" to the seat he so much coveted. not dismayed, he resolved to act on two principles: st, if possible, to outdo himself in pleasing his master, whose arbitrary and cruel disposition became more apparent from the hour that he mounted the throne. dly, to leave no effort untried to discredit, disgrace, disgust, and break the heart of the man who stood between him and his object. being confirmed in the office of chief justice of the king's bench, he began with the trial for perjury of titus oates, whose veracity he had often maintained, but with whom he had a personal quarrel, and whom he now held up to reprobation--depriving him of all chance of acquittal. the defendant was found guilty on two indictments, and the verdict on both was probably correct; but what is to be said for the sentence--"to pay on each indictment a fine of one thousand marks; to be stript of all his canonical habits; to be imprisoned for life; to stand in the pillory on the following monday, with a paper over his head, declaring his crime; next day to stand in the pillory at the royal exchange, with the same inscription; on the wednesday to be whipped from aldgate to newgate; on the friday to be whipped from newgate to tyburn; upon the th of april in every year, during life, to stand in the pillory at tyburn, opposite the gallows; on the th of august in every year to stand in the pillory opposite westminster hall gate; on the th of august in every year to stand in the pillory at charing cross; and the like on the following day at temple bar; and the like on the d of september, every year, at the royal exchange;"--the court expressing deep regret that they could not do more, as they would "not have been unwilling to have given judgment of death upon him."[ ] next came the trial of richard baxter, the pious and learned presbyterian divine, who had actually said, and adhered to the saying, "_nolo episcopari_," and who was now prosecuted for a libel, because in a book on church government he had reflected on the church of rome in words which might possibly be applied to the bishops of the church of england. no such reference was intended by him; and he was known not only to be of exemplary private character, but to be warmly attached to monarchy, and always inclined to moderate measures in the differences between the established church and those of his own persuasion.[ ] yet, when he pleaded _not guilty_, and prayed on account of ill health that his trial might be postponed, jeffreys exclaimed, "not a minute more to save his life. we have had to do with other sort of persons, but now we have a saint to deal with; and i know how to deal with saints as well as sinners. yonder stands oates in the pillory, [oates was at that moment suffering part of his sentence in palace yard, outside the great gate of westminster hall,] and he says he suffers for the truth; and so says baxter; but if baxter did but stand on the outside of the pillory with him, i would say _two of the greatest rogues and rascals in the kingdom stood there together_." having silenced the defendant's counsel by almost incredible rudeness, the defendant himself wished to speak, when the chief justice burst out, "richard, richard, thou art an old fellow and an old knave; thou hast written books enough to load a cart; every one is as full of sedition, i might say treason, as an egg is full of meat; hadst thou been whipt out of thy writing trade forty years ago, it had been happy. thou pretendest to be a preacher of the gospel of peace, and thou hast one foot in the grave; it is time for thee to begin to think what account thou intendest to give; but leave thee to thyself, and i see thou wilt go on as thou hast begun; but, by the grace of god, i'll look after thee. gentlemen of the jury, he is now modest enough; but time was when no man was so ready at _bind your kings in chains and your nobles in fetters of iron_, crying, _to your tents, o israel!_ gentlemen, for god's sake do not let us be gulled twice in an age." the defendant was, of course, found guilty, and thought himself lucky to escape with a fine of five hundred pounds, and giving security for his good behavior for seven years.[ ] the lord chief justice, for his own demerits, and to thrust a thorn into the side of lord keeper guilford, was now raised to the peerage by the title of "baron jeffreys of wem"--the preamble of his patent narrating his former promotions--averring that they were the reward of virtue, and after the statement of his being appointed to preside in the court of king's bench, adding, "where at this very time he is faithfully and boldly doing justice and affording protection to our subjects, according to law, in consequence of which virtues we have thought him fit to be raised to the peerage of this realm."[ ] he took his seat in the house of lords on the first day of the meeting of james's only parliament, along with nineteen others either raised in the peerage or newly created since the dissolution of the oxford parliament--the junior being john lord churchill, afterwards duke of marlborough. the journals show that lord jeffreys was very regular in his attendance during the session, and as the house sat daily and still met at the same early hour as the courts of law, he must generally have left the business of the king's bench to be transacted by the other judges. he was now occupied day and night with plans for pushing the already disgraced lord keeper from the woolsack. i have already, in the life of lord guilford, related how these plans were conducted in the cabinet, in the royal circle at whitehall, and in the house of lords--particularly the savage treatment which the "staggering statesman" received on the reversal of his decree in _howard_ v. _duke of norfolk_, after which he never held up his head more.[ ] the probability is, that although he clung to office so pusillanimously in the midst of all sorts of slights and indignities, he would now have been forcibly ejected if his death had not appeared to be near at hand, and if there had not been a demand for the services of "judge jeffreys" in a scene very different from the drowsy tranquillity of the court of chancery. by the month of july, monmouth's rebellion had been put down, and he himself had been executed upon his parliamentary attainder without the trouble of a trial: but all the jails in the west of england were crowded with his adherents, and, instead of colonel kirke doing military execution on more of them than had already suffered from his "lambs," it was resolved that they should all perish by the flaming sword of justice--which, on such an occasion, there was only one man fit to wield. no assizes had been held this summer on the western circuit; but for all the counties upon it a special commission to try criminals was now appointed, at the head of which lord chief justice jeffreys was put; and by a second commission, he, singly, was invested with the authority of commander-in-chief over all his majesty's forces within the same limits. on entering hampshire he was met by a brigade of soldiers, by whom he was guarded to winchester. during the rest of his progress he never moved without a military escort; he daily gave the word; orders for going the rounds, and for the general disposal of the troops, were dictated by him--sentinels mounting guard at his lodgings, and the officers on duty sending him their reports. i desire at once to save my readers from the apprehension that i am about to shock their humane feelings by a detailed statement of the atrocities of this bloody campaign in the west, the character of which is familiar to every englishman. but, as a specimen of it, i must present a short account of the treatment experienced by lady lisle, with whose murder it commenced. she was the widow of major lisle, who had sat in judgment on charles i., had been a lord commissioner of the great seal under cromwell, and, flying on the restoration, had been assassinated at lausanne. she remained in england, and was remarkable for her loyalty as well as piety. jeffreys's malignant spite against her is wholly inexplicable; for he had never had any personal quarrel with her, she did not stand in the way of his promotion, and the circumstance of her being the widow of a regicide cannot account for his vindictiveness. perhaps without any personal dislike to the individual, he merely wished to strike terror into the west by his first operation. the charge against her, which was laid capitally, was that after the battle of sedgemoor she had harbored in her house one hickes, who had been in arms with the duke of monmouth--_she knowing of his treason_. in truth she had received him into her house, thinking merely that he was persecuted as a non-conformist minister, and the moment she knew whence he came, she (conveying to him a hint that he should escape) sent her servant to a justice of peace to give information concerning him. there was the greatest difficulty even to show that hickes had been in the rebellion, and the judge was worked up to a pitch of fury by being obliged himself to cross-examine a presbyterian witness, who had showed a leaning against the prosecution. but the principal traitor had not been convicted, and there was not a particle of evidence to show the _scienter_, _i. e._, that the supposed accomplice, at the time of the harboring was acquainted with the treason. not allowed the benefit of counsel, she herself, prompted by natural good sense, took the legal objection that the principal traitor ought first to have been convicted, "because, peradventure, he might afterwards be acquitted as innocent after she had been condemned for harboring him;" and she urged with great force to the jury, "that at the time of the alleged offence she had been entirely ignorant of any suspicion of hickes having participated in the rebellion; that she had strongly disapproved of it, and that she had sent her only son into the field to fight under the royal banner to suppress it." it is said by almost all the contemporary authorities, that thrice did the jury refuse to find a verdict of guilty, and thrice did lord chief justice jeffreys send them back to reconsider their verdict. in the account of the proceeding in the state trials, which has the appearance of having been taken in short hand, and of being authentic, the repeated sending back of the jury is not mentioned; but enough appears to stamp eternal infamy on jeffreys, if there were nothing more extant against him. after a most furious summing up, "the jury withdrew, and staying out a while, the lord jeffreys expressed a great deal of impatience, and said he wondered that in so plain a case they would go from the bar, and would have sent for them, with an intimation that, if they did not come quickly, he would adjourn, and let them lie by it all night; but, after about half an hour's stay, the jury returned, and the foreman addressed himself to the court thus: 'my lord, we have one thing to beg of your lordship some directions in before we can give our verdict: we have some doubt whether there be sufficient evidence that she knew hickes to have been in the army.' _l. c. j._--'there is as full proof as proof can be; but you are judges of the proof; for my part, i thought there was no difficulty in it.' _foreman._--'my lord, we are in some doubt of it.' _l. c. j._--'i cannot help your doubts; was there not proved a discourse of the battle and the army at supper time?' _foreman._--'but, my lord, we are not satisfied that she had notice that hickes was in the army.' _l. c. j._--'i cannot tell what would satisfy you. did she not inquire of dunne whether hickes had been in the army? and when he told her he did not know, she did not say she would refuse him if he had been there, but ordered him to come by night, by which it is evident she suspected it.... but if there was no such proof, the circumstances and management of the thing is as full a proof as can be. i wonder what it is you doubt of.' _lady lisle._--'my lord, i hope----.' _l. c. j._--'you must not speak now.' the jury laid their heads together near a quarter of an hour, and then pronounced a verdict of guilty. _l. c. j._--'gentlemen, i did not think i should have had any occasion to speak after your verdict; but finding some hesitancy and doubt among you, i cannot but say i wonder it should come about; for i think in my conscience the evidence was as full and plain as could be, and if i had been among you, and she had been my own mother, i should have found her guilty.'" he passed sentence upon her with great _sang froid_, and, i really believe, would have done the same had she been the mother that bore him--"that you be conveyed from hence to the place from whence you came, and from thence you are to be drawn on a hurdle to the place of execution, where your body is to be burnt alive till you be dead. and the lord have mercy on your soul." the king refused the most earnest applications to save her life, saying that he had promised lord chief justice jeffreys not to pardon her; but, by a mild exercise of the prerogative, he changed the punishment of burning into that of beheading, which she actually underwent. after the revolution, her attainder was reversed by act of parliament, on the ground that "the verdict was injuriously extorted by the menaces and violence and other illegal practices of george lord jeffreys, baron of wem, then lord chief justice of the king's bench." from winchester, the "lord general judge" proceeded to salisbury, where he was obliged to content himself with whippings and imprisonments for indiscreet words, the wiltshire men not having actually joined in the insurrection. but when he got into dorsetshire, the county in which monmouth had landed, and where many had joined his standard, he was fatigued, if not satiated, with shedding blood. great alarm was excited, and not without reason, by his being seen to laugh in church, both during the prayers and sermon which preceded the commencement of business in the hall--his smile being construed into a sign that he was about "to breathe death like a destroying angel, and to sanguine his very ermine in blood." his charge to the grand jury threw the whole county into a state of consternation; for he said he was determined to exercise the utmost rigor of the law, not only against principal traitors, but all aiders and abettors, who, by any expression, had encouraged the rebellion, or had favored the escape of any engaged in it, however nearly related to them, unless it were the harboring of a husband by a wife, which the wisdom of our ancestors permitted, because she had sworn to obey him. bills of indictment for high treason were found by the hundred, often without evidence, the grand jury being afraid that, if they were at all scrupulous, they themselves might be brought in "aiders and abettors." it happened, curiously enough, that as he was about to arraign the prisoners, he received news, by express, that the lord keeper guilford had breathed his last at wroxton, in oxfordshire. he had little doubt that he should himself be the successor, and very soon after, by a messenger from windsor, he received assurances to that effect, with orders "to finish the king's business in the west." although he had no ground for serious misgivings, he could not but feel a little uneasy at the thought of the intrigues which in his absence might spring up against him in a corrupt court, and he was impatient to take possession of his new dignity. but what a prospect before him, if all the prisoners against whom there might be indictments, here and at other places, should plead not guilty, and _seriatim_ take their trials! he resorted to an expedient worthy of his genius by openly proclaiming, in terms of vague promise but certain denunciation, that "if any of those indicted would relent from their conspiracies, and plead guilty, they should find him to be a merciful judge; but that those who put themselves on their trials, (which the law mercifully gave them all in strictness a right to do,) if found guilty, would have very little time to live; and, therefore, that such as were conscious they had no defence, had better spare him the trouble of trying them." he was at first disappointed. the prisoners knew the sternness of the judge, and had some hope from the mercy of their countrymen on the jury. the result of this boldness is soon told. he began on a saturday morning, with a batch of thirty. of these, only one was acquitted for want of evidence, and the same evening he signed a warrant to hang thirteen of those convicted on the monday morning, and the rest the following day. an impressive defence was made by the constable of chardstock, charged with supplying the duke of monmouth's soldiers with money; whereas they had actually robbed him of a considerable sum which he had in his hands for the use of the militia. the prisoner having objected to the competency of a witness called against him, "villain! rebel!" exclaimed the judge, "methinks i see thee already with a halter about thy neck." and he was specially ordered to be hanged the first, my lord jeeringly declaring "that if any with a knowledge of the law came in his way, he should take care to _prefer them_!" on the monday morning, the court sitting rather late on account of the executions, the judge, on taking his place, found many applications to withdraw the plea of not guilty, and the prisoners pleaded guilty in great numbers; but his ire was kindled, and he would not even affect any semblance of mercy. two hundred and ninety-two more received judgment to die, and of these seventy-four actually suffered--some being sent to be executed in every town, and almost in every village, for many miles round. while the whole county was covered with the gibbeted quarters of human beings, the towns resounded with the cries of men, and even of women and children, who were cruelly whipped for sedition, on the ground that by words or looks they had favored the insurrection. jeffreys next proceeded to exeter, where one john foweracres, the first prisoner arraigned, had the temerity to plead not guilty, and being speedily convicted, was sent to instant execution. this had the desired effect; for all the others confessed, and his lordship was saved the trouble of trying them. only thirty-seven suffered capitally in the county of devon, the rest of the two hundred and forty-three against whom indictments were found being transported, whipped, or imprisoned. somersetshire afforded a much finer field for indulging the propensities of the chief justice, as in this county there had not only been a considerable rising of armed men for monmouth, but processions, in which women and children had joined, carrying ribbons, boughs, and garlands to his honor. there were five hundred prisoners for trial at taunton alone. jeffreys said in his charge to the grand jury, "it would not be his fault if he did not purify the place." the first person tried before him here was simon hamling, a dissenter of a class to whom the judge bore a particular enmity. in reality, the accused had only come to taunton, during the rebellion, to warn his son, who resided there, to remain neuter. conscious of his innocence, he insisted on pleading not guilty; he called witnesses, and made a resolute defence, which was considered great presumption. the committing magistrate, who was sitting on the bench, at last interposed and said, "there must certainly be some mistake about the individual." _jeffreys._--"you have brought him here, and, if he be innocent, his blood be upon your head." the prisoner was found guilty, and ordered for execution next morning. few afterwards gave his lordship the trouble of trying them, and one hundred and forty-three are said here to have been ordered for execution, and two hundred and eighty-four to have been sentenced to transportation for life. he particularly piqued himself upon his _bon mot_ in passing sentence on one hucher, who pleaded, in mitigation, that, though he had joined the duke of monmouth, he had sent important information to the king's general, the earl of feversham. "you deserve a double death," said the impartial judge; "one for rebelling against your sovereign, and the other for betraying your friends." he showed great ingenuity in revenging himself upon such as betrayed any disapprobation of his severities. among these was lord stawell, who was so much shocked with what he had heard of the chief justice, that he refused to see him. immediately after, there came forth an order that colonel bovet, of taunton, a friend to whom this cavalier nobleman had been much attached, should be executed at cotheleston, close by the house where he and lady stawell and his children then resided. a considerable harvest here arose from compositions levied upon the friends of twenty-six young virgins who presented the invader with colors, which they had embroidered with their own hands. the fund was ostensibly for the benefit of "the queen's maids of honor," but a strong suspicion arose that the chief justice participated in bribes for these as well as other pardons. he thought that his _peculium_ was encroached upon by a letter from lord sunderland, informing him of "the king's pleasure to bestow one thousand convicts on several courtiers, and one hundred on a favorite of the queen--security being given that the prisoners should be enslaved for ten years in some west india island." in his remonstrance he said that "these convicts would be worth ten or fifteen pounds apiece," and, with a view to his own claim, returned thanks for his majesty's gracious acceptance of his services. however, he was obliged to submit to the royal distribution of the spoil. where the king did not personally interfere, jeffreys was generally inexorable if he did not himself receive the bribe for a pardon. kiffin, a nonconformist merchant, had agreed to give three thousand pounds to a courtier for the pardon of two youths, his grandsons, who had been in monmouth's army; but the chief justice would listen to no circumstances of mitigation, as another was to pocket the price of mercy. yet, to a buffoon who attended him on the circuit and made sport by his mimicry, in an hour of revelry at taunton, he tossed the pardon of a rich culprit, expressing a hope "that it might turn to good account." the jails at taunton being incapable of containing all the prisoners, it was necessary to adjourn the commission to wells, where the same horrible scenes were again acted, notwithstanding the humane exertions of that most honorable man, bishop ken, who afterwards, having been one of the seven bishops prosecuted by king james, resigned his see at the revolution, rather than sign the new tests. the cornishmen had all remained loyal, and the city of bristol[ ] only remained to be visited by the commission. there were not many cases of treason here, but jeffreys had a particular spite against the corporation magistrates, because they were supposed to favor dissenters, and he had them very much in his power by a discovery he made, that they had been in the habit of having in turn assigned to them prisoners charged with felony, whom they sold for their own benefit to be transported to barbadoes. in addressing the grand jury, (while he complained of a fit of the stone, and was seemingly under the excitement of liquor,) he said,-- "i find a special commission is an unusual thing here, and relishes very ill; nay, the very women storm at it, for fear we should take the upper hand of them too; for by-the-bye, gentlemen, i hear it is much in fashion in this city for the women to govern and bear sway." having praised the mild and paternal rule of king james, he thus proceeded: "on the other hand, up starts a puppet prince, who seduces the mobile into rebellion, into which they are easily bewitched; for i say rebellion is like the sin of witchcraft. this man, who had as little title to the crown as the least of you, (for i hope you are all legitimate,) being overtaken by justice, and by the goodness of his prince brought to the scaffold, he has the confidence, (good god, that men should be so impudent!) to say that god almighty did know with what joyfulness he did die, (a traitor!) great god of heaven and earth! what reason have men to rebel? but, as i told you, rebellion is like the sin of witchcraft: fear god and honor the king is rejected for no other reason, as i can find, but that it is written in st. peter. gentlemen, i must tell you i am afraid that this city hath too many of these people in it, and it is your duty to find them out. gentlemen, i shall not stand complimenting with you; i shall talk with some of you before you and i part, i tell you; i tell you i have brought a besom, and i will sweep every man's door, whether great or small. certainly, here are a great many of those men whom they call trimmers; a whig is but a mere fool to those; for a whig is some sort of a subject in comparison of these; for a trimmer is but a cowardly and base-spirited whig; for the whig is but the journeyman prentice that is hired and set over the rebellion, whilst the trimmer is afraid to appear in the cause." he then opens his charge against the aldermen for the sale of convicts, and thus continues: "good god! where am i?--in bristol? this city it seems claims the privilege of hanging and drawing among themselves. i find you have more need of a special commission once a month at least. the very magistrates, that should be the ministers of justice, fall out with one another to that degree they will scarcely dine together; yet i find they can agree for their interest if there be but a _kid_ in the case; for i hear the trade of _kidnapping_ is much in request in this city. you can discharge a felon or a traitor, provided they will go to mr. alderman's plantation in the west indies. come, come, i find you stink for want of rubbing. it seems the dissenters and fanatics fare well amongst you, by reason of the favor of the magistrates; for example, if a dissenter who is a notorious and obstinate offender comes before them, one alderman or another stands up and says, _he is a good man_, (though three parts a rebel.) well, then, for the sake of mr. alderman, he shall be fined but five shillings. then comes another, and up stands another goodman alderman, and says, _i know him to be an honest man_, (though rather worse than the former.) well, for mr. alderman's sake, he shall be fined but half a crown; so _manus manum fricat_; you play the knave for me now, and i will play the knave for you by and by. i am ashamed of these things; but, by god's grace, i will mend them; for, as i have told you, i have brought a brush in my pocket, and i shall be sure to rub the dirt wherever it is, or on whomsoever it sticks." "thereupon," says roger north, "he turns to the mayor, accoutred with his scarlet and furs, and gave him all the ill names that scolding eloquence could supply; and so, with rating and staring, as his way was, never left till he made him quit the bench and go down to the criminal's post at the bar; and there he pleaded for himself as a common rogue or thief must have done; and when the mayor hesitated a little, or slackened his pace, he bawled at him, and stamping, called for his guards, for he was still general by commission. thus the citizens saw their scarlet chief magistrate at the bar, to their infinite terror and amazement." only three were executed for treason at bristol; but jeffreys looking at the end of his campaign to the returns of the enemy killed, had the satisfaction to find that they amounted to three hundred and thirty, besides eight hundred prisoners ordered to be transported.[ ] he now hastened homewards to pounce upon the great seal. in his way through somersetshire, with a regiment of dragoons as his life-guards, the mayor took the liberty to say that there were two spokes who had been convicted, and that one of these left for execution was not the one intended to suffer, the other having contrived to make his escape, and that favor might perhaps still be shown to him whom it was intended to pardon. "no!" said the general-judge; "his family owe a life; he shall die for his namesake!" to render such narratives credible, we must recollect that his mind was often greatly disturbed by fits of the stone, and still more by intemperance. burnet, speaking of his behavior at this time, says, "he was perpetually either drunk or in a rage, liker a fury than the zeal of a judge." i shall conclude my sketch of jeffreys as a criminal judge with his treatment of a prisoner whom he was eager to hang, but who escaped with life. this was prideaux, a gentleman of fortune in the west of england, who had been apprehended on the landing of monmouth, for no other reason than that his father had been attorney general under cromwell. a reward of five hundred pounds, with a free pardon, was offered to any witnesses who would give evidence against him; but none could be found, and he was discharged. afterwards, two convicts were prevailed upon to say that they had seen him take some part in the insurrection, and he was again cast into prison. his friends, alarmed for his safety, though convinced of his innocence, tried to procure a pardon for him, when they were told "that nothing could be done for him, as the king had given him to the chief justice," (the familiar phrase for the grant of an estate about to be forfeited.) a negotiation was then opened with jennings, the avowed agent of jeffreys for the sale of pardons, and the sum of fifteen thousand pounds was actually paid to him by a banker for the deliverance of a man whose destruction could not be effected by any perversion of the formalities of law.[ ] there is to be found only one defender of these atrocities. "i have indeed sometimes thought," says the author of a caveat against the whigs, "that in jeffreys's western circuit justice went too far before mercy was remembered, though there was not above a fourth part executed of what were convicted. but when i consider in what manner several of those lives then spared were afterwards spent, i cannot but think a little more _hemp_ might have been usefully employed upon that occasion."[ ] a great controversy has arisen, "who is chiefly to be blamed--jeffreys or james?" sheffield, duke of buckingham, declares that "the king never forgave the cruelty of the judge in executing such multitudes in the west against his express orders." and reliance is placed by hume on the assertion of roger north, that his brother, the lord keeper, going to the king and moving him "to put a stop to the fury which was in no respect for his service, and would be counted a carnage, not law or justice, orders went to mitigate the proceedings." i have already demonstrated that this last assertion is a mere invention,[ ] and though it is easy to fix deep guilt on the judge, it is impossible to exculpate the monarch. burnet says that james "had a particular account of his proceedings writ to him every day, and he took pleasure to relate them in the drawing-room to foreign ministers, and at his table, calling it jeffreys's campaign; speaking of all he had done in a style that neither became the majesty nor the mercifulness of a great prince." jeffreys himself, (certainly a very suspicious witness,) when in the tower, declared to tutchin that "his instructions were much more severe than the execution of them; and that at his return he was snubbed at court for being too merciful." and to dr. scott, the divine who attended him on his death bed, he said, "whatever i did then i did by express orders; and i have this further to say for myself, that i was not half bloody enough for him who sent me thither." we certainly know from a letter written to him by the earl of sunderland at dorchester, that "the king approved entirely of all his proceedings." and though we cannot believe that he stopped short of any severity which he thought would be of service to himself, there seems no reason to doubt (if that be any palliation) that throughout the whole of these proceedings his object was to please his master, whose disposition was now most vindictive, and who thought that, by such terrible examples, he should secure to himself a long and quiet reign.[ ] the two were equally criminal,[ ] and both had their reward. but in the first instance, and till the consequences of such wickedness and folly began to appear, they met each other with mutual joy and congratulations. jeffreys returning from the west, by royal command stopped at windsor castle. he arrived there on the th of september; and after a most gracious reception, the great seal was immediately delivered to him with the title of lord chancellor. we learn from evelyn that it had been three weeks in the king's personal custody. "about six o'clock came sir dudley north and his brother roger north, and brought the great seal from my lord keeper, who died the day before. the king went immediately to council, every body guessing who was most likely to succeed this great officer; most believed it would be no other than lord chief justice jeffreys, who had so rigorously prosecuted the late rebels, and was now gone the western circuit to punish the rest that were secured in the several counties, and was now near upon his return." the london gazette of october , , contains the following notice: "_windsor, sept. ._ "his majesty taking into his royal consideration the many eminent and faithful services which the right honorable george lord jeffreys, of wem, lord chief justice of england, has rendered the crown, as well in the reign of the late king, of ever blessed memory, as since his majesty's accession to the throne, was pleased this day to commit to him the custody of the great seal of england, with the title of lord chancellor." the new lord chancellor, having brought the great seal with him from windsor to london, had near a month to prepare for the business of the term. he had had only a very slender acquaintance with chancery proceedings, and he was by no means thoroughly grounded in common-law learning; but he now fell to the study of equity pleading and practice, and though exceedingly inferior to his two immediate predecessors in legal acquirements, his natural shrewdness was such that, when entirely sober, he contrived to gloss over his ignorance of technicalities, and to arrive at a right decision. he was seldom led into temptation by the occurrence of cases in which the interests of political parties, or religious sects, were concerned; and, as an equity judge, the multitude rather regarded him with favor. the public and the profession were much shocked to see such a man at the head of the law; but as soon as he was installed in his office, there were plenty ready enough to gather round him, and, suppressing their real feelings, to load him with flattery and to solicit him for favors. evelyn, who upon his appointment as chief justice, describes him as "most ignorant, but most daring," now assiduously cultivated his notice; and, having succeeded in getting an invitation to dine with him, thus speaks of him: "_ st oct., ._ "i dined at our great lord chancellor jeffreys's, who used me with much respect. this was the late chief justice, who had newly been the western circuit to try the monmouth conspirators, and had formerly done such severe justice amongst the obnoxious in westminster hall, for which his majesty dignified him by creating him first a baron, and now lord chancellor; is of an assured and undaunted spirit, and has served the court interest on all hardiest occasions; is of nature civil, and a slave of the court." the very first measure which james proposed to his new chancellor was, literally, the hanging of an alderman. he was still afraid of the mutinous spirit of the city, which, without some fresh terrors, might again break out, although the charters were destroyed; and no sufficient atonement had yet been made for the hostility constantly manifested by the metropolis to the policy of his family for half a century. his majesty proposed that alderman clayton, a very troublesome agitator, should be selected as the victim. the chancellor agreed that "it was very fit an example should be made, as his majesty had graciously proposed; but if it were the same thing to his majesty, he would venture to suggest a different choice. alderman clayton was a bad subject, but alderman cornish was still more troublesome, and more dangerous." the king readily acquiesced, and alderman cornish was immediately brought to trial before a packed jury, and executed on a gibbet erected in cheapside, on pretence that some years before he had been concerned in the ryehouse plot. the apologists of jeffreys say (and as it is the only alleged instance of his gratitude i have met with, i have great pleasure in recording it) that he was induced to save sir robert clayton from recollecting that this alderman had been his pot companion, and had greatly assisted him in obtaining the office of common serjeant. monmouth's rebellion in england, and argyle's in scotland, being put down, and the city of london reduced to subjection, james expressed an opinion, in which the chancellor concurred, that there was no longer any occasion to disguise the plan of governing by military force, and of violating at pleasure the solemn acts of the legislature. parliament reassembled on the th of november, when jeffreys took his seat on the woolsack. the king alone (as had been concerted) addressed the two houses, and plainly told them that he could rely upon "nothing but a good force of well disciplined troops in constant pay," and that he was determined to employ "officers in the army, not qualified by the late tests, for their employments." when the king had withdrawn, lord halifax rose, and said, sarcastically, "they had now more reason than ever to give thanks to his majesty, since he had dealt so plainly with them, and discovered what he would be at." this the chancellor thought fit to take as a serious motion, and immediately put the question, as proposed by a noble lord, "that an humble address be presented to his majesty to thank him for his gracious speech from the throne." no one ventured to offer any remark, and it was immediately carried, _nemine dissentiente_. the king returned a grave answer to the address, "that he was much satisfied to find their lordships were so well pleased with what he said, and that he would never offer any thing to their house that he should not be convinced was for the true interest of the kingdom." but the lords very soon discovered the false position in which they had placed themselves, and the bishops were particularly scandalized at the thought that they were supposed to have thanked the king for announcing a principle upon which papists and dissenters might be introduced into every civil office, and even into ecclesiastical benefices. accordingly, compton, bishop of london, moved "that a day might be appointed for taking his majesty's speech into consideration," and said "that he spoke the united sentiments of the episcopal bench when he pronounced the test act the chief security of the established church." this raised a very long and most animated debate, at which king james, to his great mortification, was present. sunderland, and the popishly inclined ministers, objected to the regularity of the proceeding, urging that, having given thanks for the speech, they must be taken to have already considered it, and precluded themselves from finding fault with any part of it. the lords halifax, nottingham, and mordaunt, on the other side, treated with scorn the notion that the constitution was to be sacrificed to a point of form, and, entering into the merits of the question, showed that if the power which the sovereign now, for the first time, had openly claimed were conceded to him, the rights, privileges, and property of the nation lay at his mercy. at last the lord chancellor left the woolsack, and not only bitterly attacked the regularity of the motion after a unanimous vote of thanks to the king for his speech, but gallantly insisted on the legality and expediency of the power of the sovereign to dispense with laws for the safety and benefit of the state. no lord chancellor ever made such an unfortunate exhibition. he assumed the same arrogant and overbearing tone with which he had been accustomed from the bench to browbeat juries, counsel, witnesses, and prisoners, and he launched out into the most indecent personalities against his opponents. he was soon taught to know his place, and that frowns, noise, and menaces would not pass for arguments there. while he spoke he was heard with marked disgust by all parts of the house; when he sat down, being required to retract his words by those whom he had assailed, and finding all the sympathies of the house against him, he made to each of them an abject apology, "and he proved by his behavior that insolence, when checked, naturally sinks into meanness and cowardice." the ministerialists being afraid to divide the house, monday following, the d of november, was fixed for taking the king's speech into consideration. but a similar disposition having been shown by the other house, before that day parliament was prorogued, and no other national council met till the convention parliament, after the landing of king william. james, far from abandoning his plans, was more resolute to carry them into effect. the earl of rochester, his own brother-in-law, and others who had hitherto stood by him, having in vain remonstrated against his madness, resigned their offices; but jeffreys still recklessly pushed him forward in his headlong career. in open violation of the test act, four catholic lords were introduced into the cabinet, and one of them, lord bellasis, was placed at the head of the treasury in the room of the protestant earl of rochester. among such colleagues the lord chancellor was contented to sit in council, and the wonder is that he did not follow the example of sunderland and other renegades, who at this time, to please the king, professed to change their religion, and were reconciled to the church of rome. perhaps, with his peculiar sagacity, jeffreys thought it would be a greater sacrifice in the king's eyes to appear to be daily wounding his conscience by submitting to measures which he must be supposed inwardly to condemn. as a grand _coup d'état_, he undertook to obtain a solemn decision of the judges in favor of the dispensing power,[ ] and for this purpose a fictitious action was brought against sir edward hales, the lieutenant of the tower, an avowed roman catholic, in the name of his coachman, for holding an office in the army without having taken the oath of supremacy, or received the sacrament according to the rites of the church of england, or signed the declaration against transubstantiation. jeffreys had put the great seal to letters patent, authorizing him to hold the office without these tests, "_non obstante_" the act of parliament. this dispensation was pleaded in bar of the action, and upon a demurrer to the plea, after a sham argument by counsel, all the judges except one (baron street) held the plea to be sufficient, and pronounced judgment for the defendant. it was now proclaimed at court that the law was not any longer an obstacle to any scheme that might be thought advisable. the earl of castlemaine was sent to rome, regularly commissioned as ambassador to his holiness the pope, a papal nuncio being reciprocally received at st. james's. but assuming that religion was not embraced in the negotiations between the two courts, however impolitic the proceeding might be, i do not think that the king and the chancellor are liable to be blamed, as they have been by recent historians, for having in this instance violated acts of parliament. if all those are examined which had passed from the commencement of the reformation down to the "bill of rights," it will probably be found that none of them can be applied to a mere diplomatic intercourse with the pope, however stringent their provisions may be against receiving bulls or doing any thing in derogation of the king's supremacy.[ ] there can be no doubt of the illegality of the next measure of the king and the chancellor. the court of high commission was revived with some slight modification, although it had been abolished in the reign of charles i. by an act of parliament, which forbade the erection of any similar court; and jeffreys, having deliberately put the great seal to the patent creating this new arbitrary tribunal, undertook to preside in it. the commissioners were vested with unlimited jurisdiction over the church of england, and were empowered, even in cases of suspicion, to proceed inquisitorially, like the abolished court, "_notwithstanding any law or statute to the contrary_." the object was to have all ecclesiastics under complete control, lest any of them should oppose the intended innovations in religion.[ ] jeffreys selected as his first victims, sharp, rector of st. giles's, called the "railing parson," who had made himself very obnoxious to the government by inveighing against the errors of popery--and compton, bishop of london, his diocesan, who had raised the storm against the dispensing power in the house of lords. a mandate was issued to the bishop to suspend the rector, and this being declined on the ground that no man can be lawfully condemned till he has been heard in his defence, both were summoned before the high commission. the bishop appearing, and being asked by the chancellor why he had not obeyed the king's orders by suspending dr. sharp, prayed time to prepare his defence, as his counsel were on the circuit, and he begged to have a copy of the commission. a week's time was given; but as to the commission, he was told "all the coffee-houses had it for a penny." on the eighth day the business was resumed; but the bishop still said he was unprepared, having great difficulty to procure a copy of the commission; when the chancellor made him a bantering apology. "my lord, in telling you our commission was to be seen in every coffee-house, i did not speak with any design to reflect on your lordship, as if you were a haunter of coffee-houses. i abhor the thoughts of it!" a further indulgence of a fortnight was granted. at the day appointed, the bishop again appeared with four doctors of the civil law, who were so frightened, that they hardly dared to say a word for him; but he himself firmly, though mildly, argued, "that he had acted _jurisperitorum consilio_, and could not have had any bad motive; that he should not have been justified in obeying an illegal order; that he had privately recommended to dr. sharp not to preach; that this advice had been followed, so that the king's wish was complied with; and that if he had committed any fault, he ought to be tried for it before his archbishop and brother bishops." several of the commissioners were inclined to let him off with an admonition; but jeffreys obtained and pronounced sentence of _suspension during the king's pleasure_, both on the bishop and the rector.[ ] there was another political trial where justice was done to the accused, although jeffreys presided at it. a charge was brought against lord delamere, the head of an ancient family in cheshire, that he had tried to excite an insurrection in that county in aid of monmouth's rebellion. an indictment for high treason being found against him, he was brought to trial upon it before jeffreys, as lord high steward, and thirty peers-triers. the king was present, and was very desirous of a conviction, as lord delamere, when a member of the house of commons, had taken an active part in supporting the exclusion bill. jeffreys did his best to gratify this wish. according to the habit he had lately acquired in the west, he at first tried to induce the noble prisoner to confess, in the hope of pardon "from the king's known clemency." "my lord," said he, "if you are conscious to yourself that you are guilty of this heinous crime, give glory to god, make amends to his vicegerent the king, by a plain and full discovery of your guilt, and do not, by an obstinate persisting in the denial of it, provoke the just indignation of your prince, who has made it appear to the world that his inclinations are rather to show mercy than inflict punishment." lord delamere, to ease his mind from the anxiety to know whether the man who so spoke was to pronounce upon his guilt or innocence, said, "i beg your grace would please to satisfy me whether your grace be one of my judges in concurrence with the rest of the lords." _l. h. steward._--"no, my lord, i am judge of the court, but i am none of your triers."[ ] a plea to the jurisdiction being put in, lord delamere requested his grace to advise with the other peers upon it, as it was a matter of privilege. _l. h. steward._--"good my lord, i hope you that are a prisoner at the bar are not to give me direction who i should advise with, or how i should demean myself here." this plea was properly overruled, and not guilty pleaded, when his grace, to prejudice the peers-triers against the noble prisoner as a notorious exclusionist, delivered an inflammatory address to them before any evidence was given. to create a further prejudice, poor lord howard was called to repeat once more his oft-told tale of the ryehouse plot, with which it was not pretended that the prisoner had any connection. the charge in the indictment was only supported by one witness, who himself had been in the rebellion, and who swore that lord delamere, at a time and place which he specified, had sent a message by him to monmouth, asking a supply of money to maintain ten thousand men to be levied in cheshire against king james. an _alibi_ was clearly proved. yet his grace summed up for a conviction, and took pains, "for the sake of the numerous and great auditory, that a mistake in point of law might not go unrectified, which seemed to be urged with some earnestness by the noble lord at the bar, _that there is a necessity there should be two positive witnesses to convict a man of treason_." to the honor of the peerage of england, there was a unanimous verdict of acquittal. james himself even allowed this to be right, wreaking all his vengeance on the witness for not having given better evidence, and swearing that he would have him first convicted of perjury, and then hanged for treason. jeffreys seems to have struggled hard to behave with moderation on this trial; but his habitual arrogance from time to time broke out, and must have created a disgust among the peers-triers very favorable to the prisoner. jeffreys, still pretending to be a strong protestant, eagerly assisted the king in his mad attempt to open the church and the universities to the intrusion of the catholics. the fellows of magdalen college, oxford, having disobeyed the royal mandate to elect, as head of their college, anthony farmer, who was not qualified by the statutes, and was a man of infamous character, and having chosen the pious and learned hough, were summoned before the court of ecclesiastical commission. jeffreys observed that dr. fairfax, one of their number, had not signed the answer of the college to the charge of disregarding the king's recommendation. fairfax asking leave to explain his reasons for declining to sign the answer, jeffreys thought that he was willing to conform, and exclaimed, "ay, this looks like a man of sense, and a good subject. let's hear what he will say." _fairfax._--"i don't object to the answer, because it is the vindication of my college: i go further; and as, according to the rules of the ecclesiastical courts, a libel is given to the party that he may know the grounds of his accusation, i demand that libel; for i do not know otherwise wherefore i am called here, and besides, this affair should be discussed in westminster hall." _jeffreys._--"you are a doctor of _divinity_, not of _law_." _fairfax._--"by what authority do you sit here?" _jeffreys._--"pray, what commission have you to be so impudent in court? this man ought to be kept in a dark room. why do you suffer him without a guardian? why did you not bring him to me? pray let my officers seize him." three members of the ecclesiastical commission were sent to oxford to represent that formidable body, and they annulled the election of hough, expelled the refractory fellows, and made magdalen college, for a time, a popish establishment--the court in london, under the presidency of jeffreys, confirming all their proceedings. the lord chancellor next involved the king in the prosecution of the seven bishops, which, more than any other act of misrule during his reign, led to his downfall.[ ] on the th of april, , a new "declaration of indulgence" came out under the great seal; and, that it might be the more generally known and obeyed, an order was sent from the council to all bishops in england, enjoining that it should be read by the clergy in all churches and chapels within their dioceses during divine service. a petition, signed by sancroft, the archbishop, and six other prelates, was laid before the king, praying in respectful language that the clergy might be excused from reading the declaration; not because they were wanting in duty to the sovereign, or in tenderness to the dissenters, but because it was founded upon the dispensing power, which had often been declared illegal in parliament, and on that account they could not, in prudence, honor, or conscience, be such parties to it as the reading of it in the church would imply. even the earl of sunderland and father peter represented to the king the danger of arraying the whole church of england against the authority of the crown, and advised him that the bishops should merely be admonished to be more compliant. but with the concurrence of jeffreys he resolved to visit them with condign punishment, and they were ordered to appear before the council, with a view to obtain evidence against them, as the petition had been privately presented to the king. when they entered the council chamber, jeffreys said to them, "do you own the petition?" after some hesitation, the archbishop confessed that he wrote it, and the bishops, that they signed it. _jeffreys._--"did you publish it?" they, thinking he referred to the _printing_ of it, of which the king had loudly complained, denied this very resolutely; but they admitted that they had delivered it to the king at whitehall palace, in the county of middlesex. this was considered enough to fix them with a publication, in point of law, of the supposed libel; and jeffreys, after lecturing them on their disloyalty, required them to enter into a recognizance to appear before the court of king's bench, and answer the high misdemeanor of which they were guilty. they insisted that, according to the privileges of the house of peers, of which they were members, they could not lawfully be committed, and were not bound to enter into the required recognizance. jeffreys threatened to commit them to the tower as public delinquents. _archbishop._--"we are ready to go whithersoever his majesty may be pleased to send us. we hope the king of kings will be our protector and our judge. we fear nought from man; and having acted according to law and our consciences, no punishment shall ever be able to shake our resolutions." if this struggle could have been foreseen, even jeffreys would have shrunk from the monstrous impolicy of sending these men to jail, on what would be considered the charge of temperately exercising a constitutional right in defence of the protestant faith, so dear to the great bulk of the nation; but he thought it was too late to resile. he therefore, with his own hand, drew a warrant for their commitment, which he signed, and handed round the board. it was signed by all the councillors present, except father peter, whose signature the king excused, to avoid the awkward appearance of protestant bishops being sent to jail by a jesuit. an account of their trial will be found in the next chapter; but there are some circumstances connected with their acquittal in which jeffreys personally appears. seeing how he had acquired such immense favor, there were other lawyers who tried to undermine him by his own arts. one of the most formidable of these was sir john trevor, master of the rolls, who, some authors say, certainly would have got the great seal had james remained longer on the throne, but whom jeffreys had hitherto kept down by reversing his decrees. the chancellor's alarm was now excited by a report that sir william williams (who, from being speaker of the last westminster parliament, and fined ten thousand pounds on the prosecution of the duke of york, was become the caressed solicitor general to james ii.) had a positive promise of the great seal if he could obtain a conviction of the seven bishops.[ ] his brutal conduct to them during the whole trial, which was no doubt reported to jeffreys, would confirm the rumor and increase his apprehensions. the jury having sat up all night without food, fire, or candle, to consider of their verdict, the lord chancellor had, while they were still enclosed, come down to westminster hall next morning, and taken his seat in court. when he heard the immense shout arise which soon made the king tremble on hounslow heath, he smiled and hid his face in his nosegay, "as much," observes the relater of the anecdote, "as to say, mr. solicitor, i keep my seal." however, the part he had taken in sending the bishops to the tower had caused such scandal, that the university of oxford would not have him for their chancellor, although, in the prospect of a vacancy, he had received many promises of support. the moment the news arrived of the death of the old duke of ormond, his grandson was elected to succeed him; and next day a mandate coming from court to elect lord jeffreys, an answer was returned that an election had already taken place, which could not be revoked. suspecting that things were now taking an unfavorable turn, he began privately to censure the measures of the court, and to insinuate that the king had acted against his advice, saying, "it will be found that i have done the part of an honest man, but as for the judges they are most of them rogues." about this time he was present at an event which was considered more than a counterpoise to recent discomfitures, but which greatly precipitated the crisis by taking away the hope of relief by the rightful succession of a protestant heir. being suddenly summoned to whitehall, he immediately repaired thither, and found that the queen had been taken in labor. other councillors and many ladies of quality soon arrived, and they were all admitted into her bedchamber. her majesty seems to have been much annoyed by the presence of the lord chancellor. the king calling for him, he came forward and stood on the step of the bed to show that he was there. she then begged her consort to cover her face with his head and periwig; for she declared "she could not be brought to bed, and have so many men look on her." however, the fright may have shortened her sufferings; for james iii., or "the old pretender," very speedily made his appearance, and the midwife having made the concerted signal that the child was of the wished-for sex, the company retreated. considering the surmises which had been propagated ever since the queen's pregnancy was announced, that it was feigned, and that a suppositious child was to be palmed upon the world, jeffreys was lamentably deficient in duty to the king in not having recommended steps to convince the public from the beginning, beyond all possibility of controversy, of the genuineness of the birth. when the story of the "warming-pan" had taken hold of the public mind, many witnesses were examined before the privy council to disprove it, but it continued an article of faith with thorough anti-jacobites during the two succeeding reigns.[ ] the birth of a son, which the king had so ardently longed for, led to his speedy overthrow. instead of the intrigues between the discontented at home and the prince and princess of orange, hitherto regarded as his successors, being put an end to, they immediately assumed a far more formidable aspect. william, who had hoped in the course of a few years to wield the energies of britain against the dangerous ambition of louis xiv., saw that if he remained quiet he should with difficulty even retain the circumscribed power of stadtholder of the united provinces. he therefore gladly listened to the representations of those who had fled to holland to escape from the tyranny exercised in their native country, or who sent secret emissaries to implore his aid; and he boldly resolved to come to england--not as a military conqueror, but for their deliverance, and to obtain the crown with the assent of the nation. that he and his adherents might be protected against any sudden effort to crush them, a formidable fleet was equipped in the dutch ports, and a considerable army, which had been assembled professedly for a different purpose, was ready on a short notice to be embarked in it. james, who had been amusing himself by making the pope godfather to his son, and had listened with absolute incredulity to the rumors of the coming invasion, suddenly became sensible of his danger, and to avert it was willing to make any sacrifice to please his people. the slender merit of the tardy, forced, and ineffectual concessions which were offered is claimed respectively by the apologists of the king, of jeffreys, and of the earl of sunderland, but seems due to the last of the three. james's infatuation was so transcendent,--he was so struck with judicial blindness,--being doomed to destruction, he was so demented,--that, if let alone, he probably would have trusted with confidence to his divine right and the protection of the virgin, even when william had landed at torbay. as far as i can discover, from the time when jeffreys received the great seal, he never originated any measures, wise or wicked, and without remonstrance, he heartily coöperated in all those suggested by the king, however illegal or mischievous they might be. i do not find the slightest foundation for the assertion that, with all his faults, he had a regard for the protestant religion, which made him stand up in its defence. the "declaration of indulgence," to which he put the great seal, might be imputed to a love of toleration, (to which he was a stranger,) but what can be said of the active part he took in the high commission court, and in introducing roman catholics into the universities and into the church? the earl of sunderland, though utterly unprincipled, was a man of great discernment and courage; he could speak boldly to the king, and he had joined in objecting to the precipitate measures for giving ascendancy to his new religion, which had produced this crisis. his seemingly forced removal from office he himself probably suggested, along with the other steps now taken to appease the people. whoever might first propose the altered policy, jeffreys was the instrument for carrying it into effect, and thereby it lost all its grace and virtue. he took off the suspension of the bishop of london, and, by a _supersedeas_ under the great seal, abolished the high commission court. he annulled all the proceedings respecting magdalen college, and issued the necessary process for reinstating dr. hough and the protestant fellows. he put the great seal to a general pardon. but the reaction was hoped for, above all, from the restoration of the city charters. on the d of october he sent a flattering message to the mayor and aldermen to come to whitehall in the evening, that they might be presented at court by "their old recorder." here the king told them that he was mightily concerned for the welfare of their body, and that at a time when invasion threatened the kingdom, he was determined to show them his confidence in their loyalty by restoring the rights of the city to the state in which they were before the unfortunate _quo warranto_ proceedings had been instituted in the late reign. accordingly, on the following day a meeting of the common council was called at guildhall, and the lord chancellor proceeded thither in his state carriage, attended by his purse-bearer, mace-bearer, and other officers, and after a florid speech, delivered them letters patent under the great seal, which waived all forfeitures, revived all charters, and confirmed all liberties the city had ever enjoyed under the king or any of his ancestors. great joy was manifested; but the citizens could not refrain from showing their abhorrence of the man who brought these glad tidings, and on his return they hissed him and hooted him, and gave him a foretaste of the violence he was soon to experience from an english mob. the forfeited and surrendered charters were likewise restored to the other corporations in england. these popular acts, however, were generally ascribed to fear, and the coalition of all parties, including the preachers of passive obedience, to obtain a permanent redress of grievances by force, continued resolute and unshaken. when william landed, the frightful severities of jeffreys in the west had the effect of preventing the populace from flocking to his standard, but he met with no opposition, and soon persons of great consideration and influence sent in their adhesion to him. when we read in history of civil commotions and foreign invasions, we are apt to suppose that all the ordinary business of life was suspended. but on inquiry, we find that it went on pretty much as usual, unless where interrupted by actual violence. while the prince of orange was advancing to the capital, and james was marching out to give him battle, if his army would have stood true, the court of chancery sat regularly to hear "exceptions" and "motions for time to plead;" and on the very day on which the princess anne fled to nottingham, and her unhappy father exclaimed, in the extremity of his agony, "god help me! my own children have forsaken me," the lord chancellor decided that "if an administrator pays a debt due by bond before a debt due by a decree in equity, he is still liable to pay the debt due by the decree."[ ] change of dynasty was not yet talked of, and the cry was for "a free parliament." to meet this, the king resolved to call one in his own name; and the last use which jeffreys made of the great seal was by sealing writs for the election of members of the house of commons, who were ordered to meet on the th of january following. this movement only infused fresh vigor into the prince of orange, who now resolved to bring matters to a crisis; and james, finding himself almost universally deserted, as the most effectual way, in his judgment, of annoying his enemies, very conveniently for them, determined to leave the kingdom. preparatory to this, he had a parting interview with jeffreys, to whom he did not confide his secret; but he obtained from him all the parliamentary writs which had not been issued to the sheriffs, amounting to a considerable number, and these, with his own hand, he threw into the fire, so that a lawful parliament might not be assembled when he was gone. to increase the confusion, he required jeffreys to surrender the great seal to him,--having laid the plan of destroying it,--in the belief that without it the government could not be conducted. all things being prepared, and father peter and the earl of melfort having been informed of his intentions, which he still concealed from jeffreys, on the night of the th of december, james, disguised, left whitehall, accompanied by sir edward hales, whom he afterwards created earl of tenterden. london bridge (which they durst not cross) being the only one then over the thames, they drove in a hackney-coach to the horse ferry, westminster, and as they crossed the river with a pair of oars, the king threw the great seal into the water, and thought he had sunk with it forever the fortunes of the prince of orange. at vauxhall they found horses in readiness for them, and they rode swiftly to feversham, where they embarked for france. instead of narrating the adventures of the monarch, when he was intercepted at feversham, we must confine ourselves to what befell the unhappy ex-chancellor. he heard early next morning of the royal flight, and was thrown into a state of the greatest consternation. he was afraid of punishment from the new government which was now to be established, and being asked by a courtier if he had heard "what the _heads_ of the prince's declaration were," he answered, "i am sure that _my head_ is one, whatever the rest may be." he dreaded still more the fury of the mob, of which the most alarming accounts were soon brought him. in the existing state of anarchy, almost the whole population of the metropolis crowded into the streets in quest of intelligence; the excitement was unexampled; there was an eager desire to prevent the king's evil councillors from escaping along with him; and many bad characters, under a pretence of a regard for the protestant religion, took the opportunity to gratify their love of violence and plunder. the first object of vengeance was father peter; but it was found that, in consequence of the information of the king's intentions conveyed to him and the earl of melfort, they had secretly withdrawn the day before, and were now in safety. the pope's nuncio was rescued from imminent peril by the interposition of the lords of the council, who had met, and, exercising temporarily the powers of government, were striving to preserve the public tranquillity. the next victim demanded was jeffreys, who (no one knowing that the great seal had been taken from him) still went by the name of "the chancellor," and who, of all professing protestants, was the most obnoxious to the multitude. he retired early in the day from his house in duke street to the obscure dwelling of a dependent in westminster, near the river side, and here, lying concealed, he caused preparations to be made for his escape from the kingdom. it was arranged that a coal ship which had delivered her cargo should clear out at the custom house as for her return to newcastle, and should land him at hamburg. to avoid, as he thought, all chance of being recognised by those who had seen him in ermine or gold-embroidered robes, with a long white band under the chin, his collar of s. s. round his neck, and on his head a full-bottom wig, which had recently become the attribute of judicial dignity, instead of the old-fashioned coif or black velvet cap,--he cut off his bushy eyebrows, wont to inspire such terror, he put on the worn-out dress of a common sailor, and he covered his head with an old tarred hat that seemed to have weathered many a blast. thus disguised, as soon as it was dusk he got into a boat; and the state of the tide enabling him to shoot london bridge without danger, he safely reached the coal ship lying off wapping. here he was introduced to the captain and the mate, on whose secrecy he was told he might rely; but, as they could not sail till next day, when he had examined his berth, he went on board another vessel that lay at a little distance, there to pass the night. if he had not taken this precaution, he would have been almost immediately in the power of his enemies. the mate, without waiting to see what became of him, hurried on shore, and treacherously gave information to some persons who had been in pursuit of him, that he was concealed in the newcastle collier. they applied to justices of the peace in the neighborhood for a warrant to arrest him, which was refused, on the ground that no specific charge was sworn against him. they then went to the lords of the council, whom they found sitting, and who actually gave them a warrant to apprehend him for high treason, under the belief that the safety of the state required his detention. armed with this, they returned to the coal ship in which he had taken his passage, but he was not there, and the captain, a man of honor, baffled all their inquiries. he slept securely in the vessel in which he had sought refuge; and had it not been for the most extraordinary imprudence, leading to the belief that he was fated speedily to expiate his crimes, he might have effected his escape. probably with a view of indulging more freely his habit of intemperance, he next morning came ashore, and made his appearance at a little alehouse bearing the sign of "the red cow," in anchor and hope alley, near king edward's stairs, wapping, and called for a pot of ale. when he had nearly finished it, still wearing his sailor's attire, with his hat on his head, he was so rashly confident as to put his head out from an open window to look at the passengers in the street. i must prepare my readers for the scene which follows by relating, in the words of roger north, an anecdote of the behavior of jeffreys to a suitor in the heyday of his power and arrogance. "there was a scrivener of wapping brought to hearing for relief against a _bummery bond_.[ ] the contingency of losing all being showed, the bill was going to be dismissed;[ ] but one of the plaintiff's counsel said that the scrivener was a strange fellow, and sometimes went to church, sometimes to conventicles, and none could tell what to make of him; and it was thought he was a trimmer. at that the chancellor fired; and 'a trimmer!' said he; 'i have heard much of that monster, but never saw one. come forth, mr. trimmer, turn you round, and let us see your shape,' and at that rate talked so long that the poor fellow was ready to drop under him; but at last the bill was dismissed with costs, and he went his way. in the hall one of his friends asked him how he came off. 'came off' said he; 'i am escaped from the terrors of that man's face, which i would scarce undergo again to save my life, and i shall certainly have the frightful impression of it as long as i live.'"[ ] it happened, by a most extraordinary coincidence, that this very scrivener was then walking through anchor and hope alley on the opposite side of the way, and immediately looking towards "the red cow," thought he recollected the features of the sailor who was gazing across towards him. the conviction then flashed upon his mind that this could be no other than the lord chancellor who had so frightened him out of his wits before pronouncing a decree in his favor about the "_bummery bond_." but hardly believing his own senses, he entered the tap-room of the alehouse to examine the countenance more deliberately. upon his entrance, jeffreys must have recognized the "trimmer," for he coughed, turned to the wall, and put the quart pot before his face. an immense multitude of persons were in a few minutes collected round the door by the proclamation of the scrivener that the pretended sailor was indeed the wicked lord chancellor jeffreys. he was now in the greatest jeopardy, for, unlike the usual character of the english mob, who are by no means given to cruelty, the persons here assembled were disposed at first to tear him limb from limb, and he was only saved by the interposition of some of the more considerate, who suggested that the proper course would be to take him before the lord mayor. the cry was raised, "to the lord mayor's!" but before he could be secured in a carriage to be conveyed thither, they assaulted and pelted him, and might have proceeded to greater extremities if a party of the train-bands had not rescued him from their fury. they still pursued him all the way with whips, and halters, and cries of "vengeance! justice! justice!" although he lay back in the coach, he could still be discovered in his blue jacket, and with his sailor's hat flapped down upon his face. the lord mayor, sir john chapman, a nervous, timid man, who had stood in tremendous awe of the lord chancellor, could not now see him, disguised as a sailor, without trepidation; and instead of ordering him to stand at the bar of his justice room, with much bowing and scraping, and many apologies for the liberty he was using, requested that his lordship would do him the honor to dine with him, as, it being now past twelve o'clock, he and the lady mayoress were about to sit down to dinner. jeffreys, though probably with little appetite, was going to accept the invitation, when a gentleman in the room exclaimed, "the lord chancellor is the lord mayor's prisoner, not his guest, and now to harbor him is treason, for which any one, however high, may have to answer with his own blood." the lord mayor swooned away, and died (it is said of apoplexy) soon after. the numbers and violence of the mob had greatly increased from the delay in examining the culprit, and they loudly threatened to take the law into their own hand. some were for examining him before an alderman, and leading him out by a back way for that purpose; but he himself showed most prudence by advising that, without any previous examination, he should be committed to the tower for safe custody, and that two other regiments of the train-bands should be ordered up to conduct him thither. in the confusion, he offered to draw the warrant for his own commitment. this course was followed, but was by no means free from danger, the mob defying the matchlocks and pikes of the soldiers, and pressing round the coach in which the noble prisoner was carried, still flourishing the whips and halters, and expressing their determined resolution to execute summary justice upon him for the many murders he had committed. seeing the imminent danger to which he was exposed, and possibly conscience struck when he thought he was so near his end, he lost all sense of dignity and all presence of mind. he held up his imploring hands, sometimes on one side of the coach, and sometimes on the other, exclaiming, "for the lord's sake, keep them off! for the lord's sake, keep them off!" oldmixon, who was an eye-witness of this procession, and makes loud professions of compassion for malefactors, declares that he saw these agonizing alarms without pity. the difficulty was greatest in passing the open space on tower hill. but at length the carriage passed the drawbridge, and the portcullis descended. within all was still. jeffreys was courteously received by lord lucas, recently appointed lieutenant, and in a gloomy apartment, which he never more left, he reflected in solitude on the procession which had just terminated, so different from those to which he had been accustomed for some years on the first day of each returning term, when, attended by the judges and all the grandees of the law, he had moved in state to westminster hall, the envy and admiration of all beholders. a regular warrant for his commitment was the same night made out by the lords of the council, and the next day a deputation from their body, consisting of lords north, grey, chandos and ossulston, attended to examine him at the tower. four questions were asked him. . "what he had done with the great seal of england." he answered "that he had delivered it to the king on the saturday before at mr. cheffnel's, no person being present, and that he had not seen it since." he was next asked, . "whether he had sealed all the writs for the parliament, and what he had done with them." "to the best of his remembrance," he said, "the writs were all sealed and delivered to the king," (suppressing that he had seen the king throw a great many of them in the fire.) . "had he sealed the several patents for the then ensuing year?" he declared "that he had sealed several patents for the new sheriffs, but that he could not charge his memory with the particulars." lastly, he was asked "whether he had a license to go out of the kingdom." and to this he replied, "that he had several licenses to go beyond sea, which were all delivered to sir john friend." he subscribed these answers with an affirmation that "they were true upon his honor," and the lords withdrew. but no sympathy did he meet with from any quarter, and he was now reproachfully spoken of even by the king. the news of the outbreak against him coming speedily to feversham, the fugitive monarch, who then meditated an attempt to remount his throne, thought that his chancellor might possibly be accepted by the nation as a scape-goat, and laid upon him the great errors of his reign. it happened, strangely enough, that the inn to which james had been carried when captured off sheerness, was kept by a man on whom jeffreys, for some supposed contempt of court, had imposed a very heavy fine, which had not yet been levied. complaining of this arbitrary act to his royal guest,--who had admitted him to his presence, and had asked him, in royal fashion, "his name, his age, and his history,"--james desired him to draw a discharge as ample as he chose; and, establishing a precedent, which has been often followed since, for writing in a seemingly private and confidential document what is intended afterwards to be communicated to the public, he subjoined to his signature these remarkable words, which were immediately proclaimed in feversham and transmitted to london: "i am sensible that my lord chancellor hath been a very ill man, and hath done very ill things." jeffreys was assailed by the press in a manner which showed how his cruelties had brutalized the public mind. a poetical letter, addressed to him, advising him to cut his own throat, thus concluded: "i am your lordship's obedient servant in any thing of this nature. from the little house over against tyburn, where the people are almost dead with expectation of you." this was followed by "a letter from hell from lord ch----r jeffreys to l---- c---- b---- w----d." his "confession," hawked about the streets, contained an exaggerated statement of all the bad measures of the latter part of the preceding and of the present reign. then came his "last will and testament," commencing, "in the name of ambition, the only god of our setting and worshipping, together with cruelty, perjury, pride, insolence, &c., i, george jeffreys, being in sound and perfect memory, of high commissions, _quo warrantos_, dispensations, pillorizations, floggations, gibitations, barbarity, butchery, &c., do make my last will," &c. here is the concluding legacy: "item, i order an ell and a half of fine cambric to be cut into handkerchiefs for drying up all the wet eyes at my funeral; together with half a pint of burnt claret for all the mourners in the kingdom." when he had been some weeks in confinement, he received a small barrel, marked "colchester oysters," of which, ever since his arrival in london when a boy, he had been particularly fond. seeing it, he exclaimed--"well, i have some friends left still;" but on opening it, the gift was--a halter! an actual serious petition was received by the lords of the council of england from "the widows and fatherless children in the west," beginning, "we, to the number of a thousand and more widows and fatherless children of the counties of dorset, somerset, and devon; our dear husbands and tender fathers having been so tyrannously butchered and some transported; our estates sold from us, and our inheritance cut off, by the severe and brutish sentence of george lord jeffreys, now we understand in the tower of london, a prisoner," &c. after enumerating some of his atrocities, and particularly dwelling upon his indecent speech (which i may not copy) to a young lady who asked the life of her lover, convicted before him, the petitioners thus concluded:--"these, with many hundred more tyrannical acts, are ready to be made appear in the said counties by honest and credible persons, and therefore your petitioners desire that the said george jeffreys, late lord chancellor, the vilest of men, may be brought down to the counties aforesaid, where we the good women of the west shall be glad to see him, and give him another manner of welcome than he had there three years since." meanwhile, the great seal, the _clavis regni_, the emblem of sovereign sway, which had been thrown into the thames that it might never reach the prince of orange, was found in the net of a fisherman near lambeth, and was delivered by him to the lords of the council, who were resolved to place it in the hands of the founder of the new dynasty; and james, after revisiting the capital and enjoying a fleeting moment of popularity, had finally bid adieu to england, and was enjoying the munificent hospitality of louis at st. germaine's. the provisional government, in deference to the public voice, issued an order for the more rigorous confinement of the ex-chancellor in the tower, and intimated a resolution that he should speedily be brought to trial for his misdeeds; but, amidst the stirring events which rapidly followed, he was allowed quietly to languish out the remainder of his miserable existence. while the elections were proceeding for the convention parliament--while the two houses were struggling respecting the "abdication" or "desertion" of the throne--while men were occupied with discussing the "declaration of rights"--while preparations were making for the coronation of the new sovereigns--while curiosity was keenly alive in watching their demeanor, and while alarms were spread by the adherence of ireland to the exiled king--the national indignation, which at first burst forth so violently against the crimes of jeffreys, almost entirely subsided, and little desire was evinced to see him punished as he deserved. however, considerable sensation was excited by the news that he was no more. he breathed his last in the tower of london, on the th of april, , at thirty-five minutes past four in the morning. those who take a vague impression of events, without attention to dates, may suppose, from the crowded vicissitudes of his career, that he must have passed his grand climacteric, but he was still only in the forty-first year of his age. on the meeting of the convention parliament, attempts were made to attaint the late chancellor jeffreys, to prevent his heirs from sitting in parliament, and to charge his estates with compensation to those whom he had injured; but they all failed, and no mark of public censure was set upon his memory beyond excepting him, with some other judges, from the act of indemnity passed at the commencement of the new reign. we have no very distinct account of him in domestic life. having lost his first wife, whom he had espoused so generously, within three months from her death he again entered the married state. the object of his choice was the widow of a montgomeryshire gentleman, and daughter of sir thomas bludworth, who had been lord mayor of london, and for many years one of the city representatives. i am sorry to say there was much scandal about the second lady jeffreys, and she presented him prematurely with a full-grown child. it is related that he was once disagreeably reminded of this mistake: when cross-examining a flippant female, he said to her, "madam, you are very quick in your answers." "quick as i am, sir george," cried she, "i was not so quick as your lady." even after the marriage she is still said to have encouraged sir john trevor, m. r., and other lovers, while her husband was indulging in his cups. he had children by both his wives; but of these only one son grew up to manhood, and survived him. this was john, the second lord jeffreys, who has acquired celebrity only by having rivalled his father in the power of drinking, and for having, when in a state of intoxication, interrupted the funeral of dryden, the poet. he was married, as we have seen, to the daughter of the earl of pembroke, but dying in , without male issue, the title of jeffreys happily became extinct. he soon dissipated large estates, which his father, by such unjustifiable means, had acquired in shropshire, buckinghamshire, and leicestershire. in his person jeffreys was rather above the middle stature, his complexion (before it was bloated by intemperance) inclining to fair, and he was of a comely appearance. there was great animation in his eye, with a twinkle which might breed a suspicion of insincerity and lurking malice. his brow was commanding, and he managed it with wonderful effect, whether he wished to terrify or to conciliate. there are many portraits of him, all, from his marked features, bearing a great resemblance to each other, and, it may be presumed, to the original. "he had a set of banterers for the most part near him, as in old time great men kept fools to make them merry. and these fellows, abusing one another and their betters, were a regale to him." but there can be no doubt that he circulated in good society. he was not only much at court, but he exchanged visits with the nobility and persons of distinction in different walks of life. in the social circle, being entirely free from hypocrisy and affectation, from haughtiness and ill-nature, laughing at principle, courting a reputation for profligacy, talking with the utmost freedom of all parties and all men--he disarmed the censure of the world, and, by the fascination of his manners, while he was present, he threw an oblivion over his vices and his crimes. on one occasion, dining in the city with alderman duncomb, the lord treasurer and other great courtiers being of the party, they worked themselves up to such a pitch of loyalty by bumpers to "confusion to the whigs," that they all stripped to their shirts, and were about to get upon a signpost to drink the king's health, when they were accidentally diverted from their purpose, and the lord chancellor escaped the fate which befell sir charles sedley, of being indicted for indecently exposing his person in the public streets. but this frolic brought upon him a violent fit of the stone, which nearly cost him his life. as a civil judge he was by no means without high qualifications, and in the absence of any motive to do wrong, he was willing to do right. he had a very quick perception, a vigorous and logical understanding, and an impressive eloquence. when quite sober, he was particularly good as a nisi prius judge. his summing up, in what is called "the lady ivy's case"--an ejectment between her and the dean and chapter of st. paul's to recover a large estate at shadwell--is most masterly. the evidence was exceedingly complicated, and he gives a beautiful sketch of the whole, both documentary and parol; and, without taking the case from the jury, he makes some admirable observations on certain deeds produced by the lady ivy, which led to the conclusion that they were forged, and to a verdict for the dean and chapter.[ ] considering the systematic form which equity jurisprudence had assumed under his two immediate predecessors, jeffreys must have been very poorly furnished for presiding in chancery. he had practised little before these judges, and none of their decisions were yet in print; so that if he had been so inclined, he had not the opportunity to make himself familiar with the established practice and doctrines of the court. although he must often have betrayed his ignorance, yet with his characteristic boldness and energy he contrived to get through the business without any signal disgrace, and among all the invectives, satires, and lampoons by which his memory is blackened, i find little said against his decrees. he did not promulgate any body of new orders according to recent custom; but, while he held the great seal, he issued separate orders from time to time, some of which were very useful. he first put an end to a very oppressive practice, by which a plaintiff, having filed a frivolous and vexatious bill, might dismiss it on paying merely twenty shillings costs, and he directed that the defendant should be allowed all the costs he had incurred, to be properly ascertained by an officer of the court. he then checked the abuse of staying actions at law for the examination of witnesses abroad, by requiring, before a commission to examine them issued, an affidavit specifying the names of the witnesses, and the facts they were expected to prove. by subsequent orders which he framed, vexatious applications for re-hearings were guarded against, and an attempt was made to get rid of what has ever been the opprobrium of the court--controversies about settling the minutes of a decree after it has been pronounced. i have discovered one benevolent opinion of this cruel judge, and strange to say, it is at variance with that of the humane magistrates who have adorned westminster hall in the nineteenth century. "the prisoner's convict bill" was condemned and opposed by almost all the judges in the reign of william iv., yet even jeffreys was struck with the injustice and inequality of the law, which, allowing the accused to defend himself by counsel "for a two-penny trespass," refuses that aid "where life, estate, honor, and all are concerned," and lamented its existence, while he declared himself bound to adhere to it.[ ] the venerable sages who apprehended such multiplied evils from altering the practice must have been greatly relieved by finding that their objections have proved as unfounded as those which were urged against the abolition of "_peine forte et dure_;" and the alarming innovation, so long resisted, of allowing witnesses for the prisoner to be examined under the sanction of an oath. he has been so much abused, that i began my critical examination of his history in the hope and belief that i should find that his misdeeds had been exaggerated, and that i might be able to rescue his memory from some portion of the obloquy under which it labors; but i am sorry to say, that in my matured opinion, although he appears to have been a man of high talents, of singularly agreeable manners, and entirely free from hypocrisy, his cruelty and his political profligacy have not been sufficiently exposed or reprobated; and that he was not redeemed from his vices by one single solid virtue. chapter xvi. robert wright. i now come to the last of the profligate chief justices of england; for since the revolution they have all been men of decent character, and most of them have adorned the seat of justice by their talents and acquirements, as well as by their virtues. sir robert wright, if excelled by some of his predecessors in bold crimes, yields to none in ignorance of his profession, and beats them all in the fraudulent and sordid vices. he was the son of a respectable gentleman who lived near thetford, in suffolk, and was the representative of an ancient family, long seated at kelverstone, in norfolk; he enjoyed the opportunity of receiving a good education at thetford free grammar school, and at the university of cambridge; and he had the advantage of a very handsome person and agreeable manner. but he was by nature volatile, obtuse, intensely selfish, with hardly a particle of shame, and quite destitute of the faculty of distinguishing what was base from what was honorable. without any maternal spoiling, or the contamination of bad company, he showed the worst faults of childhood, and these ripened, while he was still in early youth, into habits of gaming, drinking, and every sort of debauchery. there was a hope of his reformation when, being still under age, he captivated the affections of one of the daughters of dr. wren, bishop of ely, and was married to her. but he continued his licentious course of life, and, having wasted her fortune, he treated her with cruelty. he was supposed to study the law at an inn of court, but when he was called to the bar he had not imbibed even the first rudiments of his profession. nevertheless, taking to the norfolk circuit, the extensive influence of his father-in-law, which was exercised unscrupulously in his favor, got him briefs, and for several years he had more business than north, (afterwards lord keeper guilford,) a very industrious lawyer, who joined the circuit at the same time. "but withal," says roger, the inimitable biographer, "he was so poor a lawyer that he could not give an opinion upon a written case, but used to bring such cases as came to him to his friend, mr. north, and he wrote the opinion on a paper, and the lawyer copied it and signed under the case as if it had been his own. it run so low with him, that when north was at london, he sent up his cases to him, and had opinions returned by the post; and in the mean time he put off his clients upon pretence of taking more serious consideration." at last the attorneys found him out so completely that they entirely deserted him, and he was obliged to give up practice. by family interest he obtained the lucrative sinecure of "treasurer to the chest at chatham," but by his voluptuous and reckless course of life he got deeper and deeper in debt, and he mortgaged his estate to mr. north for fifteen hundred pounds, the full amount of its value. from some inadvertence, the title deeds were allowed to remain in wright's hands, and being immediately again in want, he applied to sir walter plummer to lend him five hundred pounds on mortgage, offering the mortgaged estate as a security, and asserting that this would be the first charge upon it. the wary sir walter thought he would make himself doubly safe by requiring an affidavit that the estate was clear from all incumbrances. this affidavit wright swore without any hesitation, and he then received the five hundred pounds. but the money being spent, and the fraud being detected, he was in the greatest danger of being sent to jail for debt, and also of being indicted for swindling and perjury. he had only one resource, and this proved available. being a clever mimic, he had been introduced into the circle of parasites and buffoons who surrounded jeffreys, at this time chief justice of the king's bench, and used to make sport for him and his companions in their drunken orgies by taking off the other judges, as well as the most eminent counsel. one day, being asked why he seemed to be melancholy, he took the opportunity of laying open his destitute condition to his patron, who said to him, "as you seem to be unfit for the bar, or any other honest calling, i see nothing for it but that you should become a judge yourself." wright naturally supposed that this was a piece of wicked pleasantry, and when jeffreys had declared that he was never more serious in his life, asked how it could be brought about, for he not only felt himself incompetent for such an office, but he had no interest, and, still more, it so happened, unfortunately, that the lord keeper guilford, who made the judges, was fully aware of the unaccountable lapse of memory into which he had fallen when he swore the affidavit for sir walter plummer, that his estate was clear from all incumbrances, the lord keeper himself being the first mortgagee. _jeffreys, c. j._--"never despair, my boy; leave all that to me." we know nothing more of the intrigue with certainty, till the following dialogue took place in the royal closet. we can only conjecture that in the meanwhile jeffreys, who was then much cherished at court, and was impatient to supersede guilford entirely, had urgently pressed the king that wright might be elevated to the bench as a devoted friend of the prerogative, and that, as the lord keeper had a prejudice against him, his majesty ought to take the appointment into his own hands. but we certainly know that, a vacancy occurring in the court of exchequer, the lord keeper had an audience of his majesty to take his pleasure on the appointment of a new baron, and that he named a gentleman at the bar, in great practice and of good character, as the fittest person to be appointed, thinking that charles would nod assent with his usual easy indifference, when, to his utter amazement, he was thus interrogated: "my lord, what think you of mr. wright? why may not he be the man?" _lord keeper._--"because, sir, i know him too well, and he is the most unfit person in england to be made a judge." _king._--"then it must not be." upon this, the lord keeper withdrew, without having received any other notification of the king's pleasure; and the office remained vacant. again there is a chasm in the intrigue, and we are driven to guess that jeffreys had renewed his solicitation, had treated the objections started to wright as ridiculous, and had advised the cashiering of the lord keeper if he should prove obstinate. the next time that the lord keeper was in the royal presence, the king, opening the subject of his own accord, observed, "good my lord, why may not wright be a judge? he is strongly recommended to me; but i would have a due respect paid to you, and i would not make him without your concurrence. is it impossible, my lord?" _lord keeper._--"sir, the making of a judge is your majesty's choice, and not my pleasure. i am bound to put the seal as i am commanded, whatever the person may be. it is for your majesty to determine, and me, your servant, to obey. but i must do my duty by informing your majesty of the truth respecting this man, whom i personally know to be a dunce, and no lawyer; who is not worth a groat, having spent his estate by debauched living; who is without honesty, having been guilty of wilful perjury to gain the borrowing of a sum of money. and now, sir, i have done my duty to your majesty, and am ready to obey your majesty's commands in case it be your pleasure that this man be a judge." the king thanked the lord keeper, without saying more, but next day there came a warrant under the sign manual for creating the king's "trusty and well-beloved robert wright" a baron of his exchequer, and orders were given for making out the patent in due form; and the detected swindler, knighted, and clothed in ermine, took his place among the twelve judges of england. people were exceedingly shocked when they saw the seat of justice so disgraced; but this might be what jeffreys intended; and one of his first acts, when he himself obtained the great seal, was to promote his _protégé_ from being a baron of the exchequer to be a judge of the court of king's bench. wright continued to do many things which caused great scandal, and, therefore, was dearer than ever to his patron, who would have discarded him if he had shown any symptoms of reformation. he accompanied general jeffreys as _aide de camp_ in the famous "campaign in the west;" in other words, he was joined in commission with him as a judge in the "bloody assize," and, sitting on the bench with him at the trial of lady lisle and the others which followed, concurred in all his atrocities. he came in for very little of the bribery; jeffreys, who claimed the lion's share, tossing him by way of encouragement one solitary pardon, for which a small sum only was expected. but on the death of sir henry beddingfield he was made chief justice of the common pleas; and very soon afterwards, the unexpected quarrel breaking out between sir edward herbert and the government about martial law and the punishment of deserters,[ ] the object being to find some one who by no possibility could go against the government, or hesitate about doing any thing required of him, however base or however bloody, wright was selected as chief justice of the king's bench. unluckily we have no account of the speeches made at any of his judicial installations, so that we do not know in what terms his learning and purity of conduct were praised, or what were the promises which he gave of impartiality and of rigorous adherence to the laws of the realm. on the very day on which he took his seat on the bench he gave good earnest of his servile spirit. the attorney general renewed his motion for an order to execute at plymouth the deserter who had been capitally convicted at reading for deserting his colors. the new chief justice, without entering into reasons, or explaining how he came to differ from the opinion so strongly expressed by his predecessor, merely said, "be it so!" the puisnies now nodded assent, and the prisoner was illegally executed at plymouth under the order so pronounced. confidence was entirely lost in the administration of justice in westminster hall, for all the three common law courts were at last filled by incompetent and corrupt judges. pettifogging actions only were brought in them, and men settled their disputes by arbitration, or by taking the opinion of counsel. the reports during the whole reign of james ii. hardly show a single question of importance settled by judicial decision. thus, having no distinct means of appreciating chief justice wright's demerits as a judge in private causes, we must at once follow him in his devious course as a political judge. the first occasion on which, after his installation, he drew upon himself the eyes of the public was when he was sent down to magdalene college, oxford, for the purpose of turning it into a popish seminary. upon a vacancy in the office of president, the fellows, in the exercise of their undoubted right, had elected the celebrated dr. hough, who had been duly admitted into the office; and the preliminary step to be taken was to annul the election, for the purpose of making way for another candidate, named by the king. there were associated with wright, in this commission, cartwright, bishop of chester, who was ready to be reconciled to rome in the hope of higher preferment, and sir thomas jenner, a baron of the exchequer, a zealous follower in the footsteps of the chief justice of the king's bench. nothing could equal the infamy of their object except the insolence of their behavior in trying to accomplish it. they entered oxford escorted by three troops of cavalry with drawn swords, and, having taken their seats with great parade in the hall of the college, summoned the fellows to attend them. these reverend and gallant divines appeared, headed by their new president, who defended his rights with skill, temper and resolution; steadily maintaining that, by the laws of england, he had a freehold in his office, and in the house and revenues annexed to it. being asked whether he submitted to this royal visitation, he answered:-- "my lords, i do declare here, in the name of myself and the fellows, that we submit to the visitation as far as it is consistent with the laws of the land and the statutes of the college, and no further." _wright, c. j._--"you cannot imagine that we act contrary to the laws of the land; and as to the statutes, the king has dispensed with them. do you think we come here to break the laws?" _hough._--"it does not become me, my lords, to say so; but i will be plain with your lordships. i find that your commission gives you authority to alter the statutes. now, i have sworn to uphold and obey them; i must admit no alteration of them, and by the grace of god never will." he was asked whether one of the statutes of the founder did not require mass to be said in the college chapel; but he answered, "not only was it unlawful, but it had been repealed by the act of parliament requiring the use of the book of common prayer." however, sentence was given that the election of hough was void, and that he be deprived of his office of president. _hough._--"i do hereby protest against all your proceedings, all you have done, or shall hereafter do, in prejudice of me and my right, and i appeal to my sovereign lord the king in his courts of justice." "upon which (says a contemporary account) the strangers and young scholars in the hall gave a _hum_, which so much incensed their lordships that the lord chief justice was not to be pacified, but, charging it upon the president, bound him in a bond of one thousand pounds, and security to the like value, to make his appearance at the king's bench bar on the th of november; and, taking occasion to pun upon the president's name, said to him, "sir, you must not think to _huff_ us." he then ordered the door of the president's house to be broken open by a blacksmith; and a fellow observing, "i am informed that the proper officer to gain possession of a freehold is the sheriff with a _posse comitatus_," wright said, "i pray who is the best lawyer, you or i? your oxford law is no better than your oxford divinity. if you have a mind to a _posse comitatus_, you may have one soon enough." having ejected hough, he issued a mandate for expelling all the contumacious fellows, and insured the expulsion of james from his throne, when the commissioners returned in triumph to london. wright was likewise a member of the ecclesiastical court of high commission, of which jeffreys was president, and he strenuously joined in all the judgments of that illegal and arbitrary tribunal, which, with a _non obstante_, had been revived in the very teeth of an existing act of parliament. he treated with ridicule the scruples of sancroft, the archbishop of canterbury, and others who refused to sit upon it, and he urged the infliction of severe punishment on all who denied its jurisdiction. although he was not a member of the cabinet, he usually heard from the chancellor the measures which had been resolved upon there, and he was ever a willing tool in carrying them into effect. when the clergy were insulted, and the whole country was thrown into a flame, by the fatal order in council for reading the "declaration of indulgence" in all churches and chapels on two successive sundays, he contrived an opportunity of declaring from the bench his opinion that it was legal and obligatory. hearing that the london clergy were almost unanimously resolved to disobey it, he sent a peremptory command to the priest who officiated in the chapel of serjeants' inn to read the declaration with a loud voice; and on the famous sunday, the th of may, , he attended in person, to give weight to the solemnity. however, he was greatly disappointed and enraged to find the service concluded without any thing being uttered beyond what the rubric prescribes. he then indecently, in the hearing of the congregation, abused the priest as disloyal, seditious, and irreligious, for contemning the authority of the head of the church. the clerk ingeniously came forth to the rescue of his superior, and took all the blame upon himself by saying that "he had forgot to bring a copy," and the chief justice, knowing that he had no remedy, was forced to content himself with this excuse.[ ] the seven bishops being committed to the tower, and prosecuted for a conspiracy to defame the king and to overturn his authority, because they had presented a petition to him praying that they might not be forced to violate their consciences and to break the law, wright, the lowest wretch that had ever appeared on the bench in england, was to preside at the most important state trial recorded in our annals. the reliance placed upon his abject subserviency no doubt operated strongly in betraying the government into this insane project of treating as common malefactors the venerable fathers of the protestant church, now regarded by the whole nation with affectionate reverence. the consideration was entirely overlooked by the courtiers, that, from the notorious baseness of his character, his excessive zeal might be revolting to the jury, and might produce an acquittal. it is supposed that a discreet friend of the government had given him a caution to bridle his impetuosity against the accused, as the surest way of succeeding against them; for, during the whole proceeding, he was less arrogant than could have been expected, and it is much more probable that his forbearance arose from obedience to those whom he wished to please, than from any reverence for the sacred character of the defendants or any lurking respect for the interests of justice. they were twice placed at the bar before him--first when they were brought up by the lieutenant of the tower to be arraigned, and afterwards when a jury was empannelled for their trial. on the former occasion the questions were whether they were lawfully in custody, and were then bound to plead. the chief justice checked the opposing counsel with an air of impartiality, saying, "look you, gentlemen, do not fall upon one another, but keep to the matter in hand." and, before deciding for the crown, he said, "i confess it is a case of great weight, and the persons concerned are of great honor and value. i would be as willing as any body to testify my respects and regards to my lords the bishops, if i could see any thing in their objections worth considering. for here is the question, whether the fact charged in the warrant of commitment be such a misdemeanor as is a breach of the peace. i cannot but think it is such a misdemeanor as would have required sureties of the peace, and if sureties were not given, a commitment might follow." he was guilty of gross injustice in refusing leave to put in a plea in abatement; but he thus mildly gave judgment: "we have inquired whether we may reject a plea, and, truly, i am satisfied that we may if the plea is frivolous; and this plea containing no more than has been overruled already, my lords the bishops must now plead guilty or not guilty." when the trial actually came on, he betrayed a partiality for which, in our times, a judge would be impeached; but, compared with himself, so decorous was he, that he was supposed to be overawed by the august audience in whose presence he sat. it was observed that he often cast a side glance towards the thick rows of earls and barons by whom he was watched, and who, in the next parliament, might be his judges. one bystander remarked that "he looked as if all the peers present had halters in their pockets." the counsel for the crown having, in the first instance, failed to prove a publication of the supposed libel in the county of middlesex, and only called upon the court to suppose or presume it, the chief justice said: "i cannot suppose it; i cannot presume any thing. i will ask my brothers their opinion, but i must deal truly with you; i think there is not evidence against my lords the bishops. it would be a strange thing if we should go and presume that these lords did it when there is no sort of evidence to prove that they did it. we must proceed according to forms and methods of law. people may think what they will of me, but i always declare my mind according to my conscience." he was actually directing the jury to acquit, and the verdict of not guilty would have been instantly pronounced, when finch, one of the counsel for the bishops, most indiscreetly said they had evidence on their side to produce. the young gentleman was pulled down by his leaders, who desired the chief justice to proceed. and now his lordship showed the cloven foot, for he exclaimed, "no, no, i will hear mr. finch. go on; my lords the bishops shall not say of me that i would not hear their counsel. i have been already told of being counsel against them, and they shall never say i would not hear counsel for them. such a learned man as mr. finch must have something material to offer. he shall not be refused to be heard by me, i assure you. why don't you go on, mr. finch?" at this critical moment it was announced that the earl of sunderland, the president of the council,--who was present in the royal closet when the bishops presented their petition to the king at whitehall,--was at hand, and would prove a publication in middlesex. the chief justice then said, with affected calmness, but with real exultation, "well, you see what comes of the interruption. i cannot help it; it is your own fault." there being a pause while they waited for the arrival of the earl of sunderland, the chief justice, addressing sir bartholomew shower, one of the counsel for the crown, whom he had stopped at an early stage of the trial, and against whom he had some private spite, observed with great insolence, "sir bartholomew, now we have time to hear your speech, if you will. let us have it." at last the witness arrived, and, proving clearly a publication in middlesex, the case was again launched, and, after hearing counsel on the merits, it was to be left to the determination of the jury. the chief justice, thinking to carry it all his own way, was terribly baffled, not only by the sympathy of the audience with the bishops, which evidently made an impression on the jury, but by the unexpected honesty of one of his brother judges, mr. justice john powell, who had been a quiet man, unconnected with politics, and, being a profound lawyer, had been appointed to keep the court of king's bench from falling into universal contempt. sir robert sawyer beginning to comment upon a part of the declaration which the bishops objected to, "that from henceforth the execution of all laws against nonconformity to the religion established, or the exercise of any other religion, should be suspended," _wright, c. j._, exclaimed, "i must not suffer this; they intend to dispute the king's power of suspending laws." _powell, j._--"my lord, they must necessarily fall upon the point; for, if the king hath no such power, (as clearly he hath not, in my judgment,) the natural consequence will be that this petition is no diminution of the king's regal power, and so not seditious or libellous." _wright, c. j._--"brother, i know you are full of that doctrine; but, however, my lords the bishops shall have no occasion to say that i deny to hear their counsel. brother, you shall have your will for once; i will hear them; let them talk till they are weary." _powell, j._--"i desire no greater liberty to be granted them than what, in justice, the court ought to grant; that is, to hear them in defence of their clients." as the speeches for the defendants proceeded, and were producing a great effect upon all who heard them, the solicitor general made a very irregular remark, accompanied by a fictitious yawn--"we shall be here till midnight." the chief justice, instead of reprimanding him, chimed in with the impertinence, saying, "they have no mind to have an end of the cause, for they have kept it up three hours longer than they need to have done." _serjeant pemberton._--"my lord, this case does require a great deal of patience." _wright, c. j._--"it does so, brother, and the court has had a great deal of patience; but we must not sit here only to hear speeches." in trying to put down another counsel, who was making way with the jury, he observed, "if you say anything more, pray let me advise you one thing--don't say the same thing over and over again; for, after so much time spent, it is irksome to all company, as well as to me." when it came to the reply of williams, the renegade solicitor general, who in his day had been "a whig and something more," he laid down doctrines which called forth the reprobation of judge powell, and even shocked the chief justice himself, for he denied that any petition could lawfully be presented to the king except by the lords and commons in parliament assembled. _powell, j._--"this is strange doctrine. shall not the subject have liberty to petition the king but in parliament? if that be law, the subject is in a miserable case." _wright, c. j._--"brother, let him go on; we will hear him out, though i approve not of his position." the unabashed williams continued, "the lords may address the king in parliament, and the commons may do it; but therefore that the bishops may do it out of parliament, does not follow. i'll tell you what they should have done: if they were commanded to do anything against their consciences, they should have acquiesced till the meeting of the parliament."[ ] (here, says the reporter, the people in court hissed.) _attorney general._--"this is very fine indeed: i hope the court and the jury will take notice of this carriage." _wright, c. j._--"mr. solicitor, i am of opinion that the bishops might petition the king; but this is not the right way. if they may petition, yet they ought to have done it after another manner; for if they may, in this reflective way, petition the king, i am sure it will make the government very precarious." _powell, j._--"mr. solicitor, it would have been too late to stay for a parliament, for the act they conceived to be illegal was to be done forthwith; and if they had petitioned and not shown the reason why they could not obey, it would have have been looked upon as a piece of sullenness, and for that they would have been as much blamed on the other side." the chief justice, to put on a semblance of impartiality, attempted to stop sir bartholomew shower, who wished to follow in support of the prosecution, and, being a very absurd man, was likely to do more harm than good. _wright, c. j._--"i hope we shall have done by and by." _sir b. s._--"if your lordship don't think fit, i can sit down." _wright, c. j._--"no! no! go on, sir bartholomew--you'll say i have spoiled a good speech." _sir b. s._--"i have no good speech to make, my lord; i have but a very few words to say." _wright, c. j._--"well, go on, sir; go on." in summing up to the jury, the chief justice said:-- "this is a case of very great concern to the king and the government on the one side, and to my lords the bishops on the other. it is an information against his grace my lord of canterbury and the other six noble lords, for composing and publishing a seditious libel. at first we were all of opinion that there was no sufficient evidence of publication in the county of middlesex, and i was going to have directed you to find my lords the bishops not guilty; but it happened that, being interrupted in my direction by an honest, worthy, learned gentleman, the king's counsel took the advantage, and, informing the court that they had further evidence, we waited till the lord president came, who told us how the petition was presented by the right reverend defendants to the king at whitehall. then came their learned counsel and told us that my lords the bishops are guardians of the church, and great peers of the realm, and were bound in conscience to act as they did. various precedents have been vouched to show that the kings of england have not the power assumed by his present majesty in issuing the declaration and ordering it to be read; but concessions which kings sometimes make, for the good of the people, must not be made law; for this is reserved in the king's breast to do what he pleases in it at any time. the truth of it is, the dispensing power is out of the case, and i will not take upon me to give any opinion upon it now; for it is not before me. the only question for you is a question of fact, whether you are satisfied that this petition was presented to the king at whitehall. if you disbelieve the lord president, you will at once acquit the defendants. if you give credit to his testimony, the next consideration is, whether the petition be a seditious libel, and this is a question of law on which i must direct you. now, gentlemen, anything that shall disturb the government, or make mischief and a stir among the people, is certainly within the case '_de libellis famosis_;' and i must, in short, give you my opinion--i do take it to be a libel. but this being a point of law, if my brothers have anything to say to it, i suppose they will deliver their opinions." mr. justice holloway, though a devoted friend of the government, had in his breast some feeling of shame, and observed,-- "if you are satisfied there was an ill intention of sedition or the like, you should find my lords the bishops guilty; but if they only delivered a petition to save themselves harmless, and to free themselves from blame, by showing the reason of their disobedience to the king's command, which they apprehend to be a grievance to them, i cannot think it a libel." _wright, c. j._--"look you, by the way, brother, i did not ask you to sum up the evidence, (for that is not usual,) but only to deliver your opinion whether it be a libel or no." _powell, j._--"truly, i cannot see, for my part, anything of sedition or any other crime fixed upon these reverend fathers. for, gentlemen, to make it a libel, it must be false, it must be malicious, and it must tend to sedition. as to the falsehood, i see nothing that is offered by the king's counsel, nor anything as to the malice; it was presented with all the humility and decency becoming subjects when they approach their prince. in the petition, they say, because they conceive the thing that was commanded them to be against the law of the land, therefore they do desire his majesty that he would be pleased to forbear to insist upon it. if there be no such dispensing power, there can be no libel in the petition which represented the declaration founded on such a pretended power to be illegal. now, gentlemen, this is a dispensation with a witness; it amounts to an abrogation and utter repeal of all the laws; for i can see no difference, nor know of any in law, between the king's power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatsoever. if this be once allowed of, there will need no parliament: all the legislature will be in the king--which is a thing worth considering--and i leave the issue to god and your own consciences." allybone, however, on whom james mainly relied, foolishly forgetting the scandal which would necessarily arise from the protestant prelates being condemned by a popish judge for trying to save their church from popery, came up to the mark, and, in the sentiments he uttered, must have equalled all the expectations entertained of him by his master:-- "in the first place," said he, "no man can take upon him to write against the actual exercise of the government, unless he have leave from the government. if he does, he makes a libel, be what he writes true or false; if we once come to impeach the government by way of argument, it is argument that makes government or no government. so i lay down, that the government ought not to be impeached by argument, nor the exercise of the government shaken by argument. am i to be allowed to discredit the king's ministers because i can manage a proposition, in itself doubtful, with a better pen than another man? this i say is a libel. my next position is, that no private man can take upon him to write concerning the government at all; for what has any private man to do with the government? it is the business of the government to manage matters relating to the government; it is the business of subjects to mind only their private affairs. if the government does come to shake my particular interest, the law is open for me, and i may redress myself; but when i intrude myself into matters which do not concern my particular interest, i am a libeller. and, truly, the attack is the worse if under a specious pretence; for, by that rule, every man that can put on a good vizard may be as mischievous as he will, so that whether it be in the form of a supplication, or an address, or a petition, let us call it by its true denomination, it is a libel." he then examined the precedents which had been cited, displaying the grossest ignorance of the history as well as constitution of the country; and, after he had been sadly exposed by mr. justice powell, he thus concluded: "i will not further debate the prerogatives of the crown or the privileges of the subject; but i am clearly of opinion that these venerable bishops did meddle with that which did not belong to them; they took upon themselves to contradict the actual exercise of the government, which i think no particular persons may do." the chief justice, without expressing any dissent, merely said, "gentlemen of the jury, have you a mind to drink before you go?" so wine was sent for, and they had a glass apiece; after which they were marched off in custody of a bailiff; who was sworn not to let them have meat or drink, fire or candle, until they were agreed upon their verdict. all that night they were shut up, mr. arnold, the king's brewer, standing out for a conviction till six next morning, when, being dreadfully exhausted, he was thus addressed by a brother juryman: "look at me; i am the largest and the strongest of the twelve, and, before i find such a petition as this a libel, here i will stay till i am no bigger than a tobacco-pipe." the court sat again at ten, when the verdict of not guilty was pronounced, and a shout of joy was raised which was soon reverberated from the remotest parts of the kingdom. one gentleman, a barrister of gray's inn, was immediately taken into custody in court, by order of the lord chief justice, who, with an extraordinary command of temper and countenance, said to him in a calm voice,--"i am as glad as you can be that my lords the bishops are acquitted, but your manner of rejoicing here in court is indecent; you might rejoice in your chamber or elsewhere, and not here. have you any thing more to say to my lords the bishops, mr. attorney?" _a. g._--"no, my lord." _wright, c. j._--"then they may withdraw,"--and they walked off; surrounded by countless thousands, who eagerly knelt down to receive their blessing.[ ] justice holloway was forthwith cashiered, as well as justice powell; and there were serious intentions that chief justice wright should share their fate, as the king ascribed the unhappy result of the trial to his pusillanimity--contrasting him with jeffreys, who never had been known to miss his quarry. this esteemed functionary held the still more important office of lord high chancellor, and, compared with any other competitor, wright, notwithstanding his occasional slight lapses into conscientiousness, appeared superior in servility to all who could be substituted for him.[ ] allybone was declared to be "the man to go through thick and thin;" but, unfortunately, he had made himself quite ridiculous in all men's eyes by the palpable blunders he had recklessly fallen into during the late trial; and he felt so keenly the disgrace he had brought on himself and his religion, that he took to his bed and died a few weeks afterwards. thus, when william of orange landed at torbay, wright still filled the office of chief justice of the king's bench. he continued to sit daily in court till the flight of king james, when an interregnum ensued, during which all judicial business was suspended, although the public tranquillity was preserved, and the settlement of the nation was conducted by a provisional government. after jeffreys had tried to make his escape, disguised as a sailor, and was nearly torn to pieces by the mob, wright concealed himself in the house of a friend, and being less formidable and less obnoxious (for he was called the "_jackal_ to the _lion_,") he remained some time unmolested; but upon information, probably ill-founded, that he was conspiring with papists who wished to bring back the king, a warrant was granted against him by the privy council, on the vague charge of "endeavoring to subvert the government." under this he was apprehended, and carried to the tower of london; but after he had been examined there by a committee of the house of commons, it was thought that this custody was too honorable for him, and he was ordered to be transferred to newgate. here, from the perturbation of mind which he suffered, he was seized with a fever, and he died miserably a few days after, being deafened by the cheers which were uttered when the prince and princess of orange were declared king and queen of england. his pecuniary embarrassments had continued even after he became a judge, and, still living extravagantly, his means were insufficient to supply him with common comforts in his last hours, or with a decent burial. his end holds out an awful lesson against early licentiousness and political profligacy. he was almost constantly fighting against privation and misery, and during the short time that he seemed in the enjoyment of splendor he was despised by all good men, and he must have been odious to himself. when he died, his body was thrown into a pit with common malefactors; his sufferings, when related, excited no compassion; and his name was execrated as long as it was recollected. it is lucky for the memory of wright that he had contemporaries such as jeffreys and scroggs, who considerably exceeded him in their atrocities. had he run the same career in an age not more than ordinarily wicked, his name might have passed into a by-word, denoting all that is odious and detestable in a judge; whereas his misdeeds have long been little known, except to lawyers and antiquaries. it is a painful duty for me to draw them from their dread abode; but let me hope that, by exposing them in their deformity, i may be of some service to the public. ever since the reaction which followed the passing of the reform bill, there has been a strong tendency to mitigate the errors and to lament the fate of james ii. this has shown itself most alarmingly among the rising generation; and there seems reason to dread that we may soon be under legislators and ministers who, believing in the divine right of kings, will not only applaud, but act upon, the principles of arbitrary government. some good may arise from showing in detail the practical results of such principles in the due administration of justice--the chief object, it has been said, for which man renounces his natural rights, and submits to the restraints of magisterial rule.[ ] appendix. no. i. _the case of passmore williamson, as stated by himself in his petition for a habeas corpus, to the supreme court of pennsylvania._ _to the honorable the judges of the supreme court of pennsylvania:_ the petition of passmore williamson respectfully sheweth: that your petitioner is a citizen of pennsylvania, and a resident of philadelphia; that he is a member of "the pennsylvania society for promoting the abolition of slavery, and for the relief of free negroes unlawfully held in bondage, and for improving the condition of the african race," incorporated by act of assembly passed the th day of december, a. d. , of which dr. benjamin franklin was the first president, and that he is secretary of the acting committee of said society. that on wednesday, the th day of july last past, your petitioner was informed that certain negroes, held as slaves, were then at bloodgood's hotel, in the city of philadelphia, having been brought by their master into the state of pennsylvania, with the intention of passing through to other parts. believing that the persons thus held as slaves were entitled to their freedom by reason of their having been so brought by their master voluntarily into the state of pennsylvania, the petitioner, in the fulfilment of the official duty imposed upon him by the practice and regulations of the said society, went to bloodgood's hotel for the purpose of apprizing the alleged slaves that they were free, and finding that they with their master had left said hotel, and gone on board the steamboat of the new york line, then lying near walnut street wharf, your petitioner went on board the same, found the party, consisting of a woman named jane, about thirty-five years of age, and her two sons, daniel, aged about twelve, and isaiah, aged about seven, and, in presence of the master, informed the said jane that she was free by the laws of pennsylvania; upon which she expressed her desire to have her freedom, and finally, with her children, left the boat of her own free will and accord, and without any coercion or compulsion of any kind; and having seen her in possession of her liberty, with her children, your petitioner returned to his place of business, and has never since seen the said jane, daniel and isaiah, or either of them; nor does he know where they are, nor has he had any connection of any kind with the subject. your petitioner used no violence whatever, except simply holding back colonel wheeler, their former master, when he attempted by force to prevent the said jane from leaving the boat. some half dozen negroes, employed, as your petitioner is informed, as porters and otherwise, at the wharf and in the immediate neighborhood, of their own accord and without any invitation of the petitioner, but probably observing or understanding the state of affairs, followed the petitioner when he went on board the boat. an allegation has been made that they were guilty of violence and disorder in the transaction. your petitioner observed no acts of violence committed by them, nor any other disorder than the natural expression of some feeling at the attempt of colonel wheeler to detain the woman by force; that there was not any violence or disorder amounting to a breach of the peace is also fairly to be inferred from the fact that two police officers were present, who were subsequently examined as witnesses, and stated that they did not see anything requiring or justifying their interference to preserve the peace. and your petitioner desires to state explicitly that he had no preconcert or connection of any kind with them or with their conduct, and considers that he is in no way responsible therefor. your petitioner gave to colonel wheeler, at the time, his name and address, with the assurance that he would be responsible if he had injured any right which he had; fully believing at the time, as he does still believe, that he had committed no injury whatever to any right of colonel wheeler. on the night of the same day your petitioner was obliged to leave the city to attend an election of the atlantic and ohio telegraph company, at harrisburg, and returned to philadelphia on friday, the th of july, between one and two o'clock, a. m. upon his return, an _alias_ writ of _habeas corpus_ was handed to him, issued from the district court of the united states for the eastern district of pennsylvania, upon the petition of the said john h. wheeler, commanding him that the bodies of the said jane, daniel and isaiah he should have before the hon. john k. kane, judge of the said district court, forthwith. to the said writ your petitioner the same day, viz., the th day of july last past, made return, that the said jane, daniel and isaiah, or by whatever name they may be called, nor either of them, were not then, nor at the time of issuing said writ, or the original writ, or at any other time, in the custody, power, or possession of, nor confined nor restrained of their liberty, by your petitioner; therefore he could not have the bodies of the said jane, daniel and isaiah before the said judge, as by the said writ he was commanded. whereupon and afterwards, to wit: on the th day of july aforesaid, it was ordered and adjudged by the court that your petitioner be committed to the custody of the marshal, without bail or mainprize, as for a contempt in refusing to make return to a writ of _habeas corpus_ theretofore issued against him at the instance of mr. john h. wheeler; all which appears by the record and proceedings in the said case, which your petitioner begs leave to produce, and a copy of an exemplification of which is annexed to this petition. thereupon, on the same day, a warrant was issued, commanding that the marshal of the united states, in and for the eastern district of pennsylvania, forthwith take into custody the body of your petitioner, for a contempt of the honorable the judge of the said district court, in refusing to answer to the said writ of _habeas corpus_, theretofore awarded against him, the said petitioner, at the relation of mr. john h. wheeler, a copy of which is hereto annexed, and also a warrant, by and from the marshal of the united states, to the keeper of the moyamensing prison, a copy of which is also hereto annexed; under which warrants your petitioner was committed to the said prison, and is now there detained, without bail or mainprize. notwithstanding the record is silent on the subject, your petitioner thinks it proper to state that, on the return of the writ of _habeas corpus_, the judge allowed the relator to traverse the said return by parol, under which permission the relator gave his own testimony, in which he stated that he held the said jane, daniel and isaiah as slaves, under the law of virginia, and had voluntarily brought them with him by railroad from the city of baltimore to the city of philadelphia, where he had been accidentally detained at bloodgood's hotel about three hours; and certain other witnesses were examined. from the testimony thus given, though not at all warranted by it or by the facts, the said judge decided that your petitioner had been concerned in a forcible abduction of the said jane, daniel and isaiah, against their will and consent, upon the deck of the said steamboat, but admitted that your petitioner took no personally active part in such supposed abduction after he had left the deck. the hearing took place on the morning of friday, the th of july, at ten o'clock, your petitioner having had the first knowledge of the existence of any writ of _habeas corpus_ between one and two o'clock on the same morning. under these circumstances, before the said testimony was gone into and afterwards, the counsel of your petitioner asked for time, until the next morning, for consultation and preparation for the argument of the questions which might arise in the case, which applications were refused by the court, and the hearing went on, and closed on the same morning between twelve and one o'clock. on tuesday, the st of july, , your petitioner presented to the hon. chief justice of this court a petition for a _habeas corpus_, which was refused. inasmuch as your petitioner is thus deprived of his liberty for an indefinite time, and possibly for his life, as he believes, illegally; inasmuch as he is a native citizen of pennsylvania, and claims that he has a right to the protection of the commonwealth, and to have recourse to her courts for enlargement and redress; he begs leave respectfully to state some of the grounds on which he conceives that he is entitled to the relief which he now prays. whatever may be the view of the court as to the probability of his discharge on a hearing, your petitioner respectfully represents that he is clearly entitled to have a writ of _habeas corpus_ granted, and to be thereupon brought before the court. upon this subject the pennsylvania _habeas corpus_ act is imperative. indeed, as the question of the sufficiency of the cause of his detention directly concerns his personal liberty, any law which should fail to secure to him the right of being personally present at its argument and decision, would be frightfully inconsistent with the principles of the common law, the provisions of our bill of rights, and the very basis of our government. it is believed that no case, prior to that of your petitioner, is reported in pennsylvania, of a refusal of this writ to a party restrained of his liberty, except the case of _ex parte lawrence_, binn. , in which it was decided that it was not obligatory on the court to issue a second writ of _habeas corpus_ where the case had been already heard on the same evidence upon a first writ of _habeas corpus_ granted by another court of the petitioner's own selection: in other words, that the statutory right to the writ was exhausted by the impetration and hearing of the first writ, and that the granting of a second writ was at the discretion of the court. this case, therefore, appears to confirm strongly the position of your petitioner, that he is absolutely entitled at law to the writ for which he now prays. on the hearing there will be endeavored to be established on behalf of your petitioner, on abundant grounds of reason and authority, the following propositions, viz.:-- . that it is the right and duty of the courts, and especially of the supreme court of this commonwealth, to relieve any citizen of the same from illegal imprisonment. . that imprisonment under an order of a court or judge not having jurisdiction over the subject matter, and whose order is therefore void, is an illegal imprisonment. . that the party subjected to such imprisonment has a right to be relieved from it on _habeas corpus_, whether he did or did not make the objection of the want of jurisdiction before the court or judge inflicting such imprisonment; and that if he did not make such objection, it is immaterial whether he were prevented from making it by ignorance of the law, or by the want of extraordinary presence of mind, or by whatever other cause. . that the courts and judges of the united states are courts and judges of limited jurisdiction, created by a government of enumerated powers, and in proceedings before them the records must show the case to be within their jurisdiction, otherwise they can have none. . that if the record of any proceeding before them show affirmatively that the case was clearly without their jurisdiction, there can no presumption of fact be raised against such record for the purpose of validating their jurisdiction. . that no writ of _habeas corpus_ can be issued to produce the body of a person not in custody under legal process, unless it be issued in behalf and with the consent of said person. . that at common law, the return to a writ of _habeas corpus_, if it be an unevasive, full and complete, is conclusive, and cannot be traversed. . that a person held as a slave under the law of one state, and voluntarily carried by his owner for any purpose into another state, is not a fugitive from labor or service within the true intent and meaning of the constitution of the united states, but is subject to the laws of the state into which he has been thus carried; and that by the law of pennsylvania a slave so brought into this state, whether for the purpose of passing through the same or otherwise, is free. . that the district court of the united states has no jurisdiction whatever over the question of freedom or slavery of such person, or of an alleged abduction of him, nor any jurisdiction to award a writ of _habeas corpus_ commanding an alleged abductor, or any citizen by whom he may be assumed to be detained, to produce him. . that in case of a fugitive from service or labor from another state, the district court of the united states has jurisdiction to issue a warrant for the apprehension of such fugitive, and in case he be rescued and abducted from his claimant, so proceed by indictment and trial by jury against such abductor, and on conviction to punish him by limited fine and imprisonment; but even in the case of a fugitive slave, said court nor the judge thereof has no jurisdiction to issue a writ of _habeas corpus_, commanding the alleged abductor to produce such fugitive, or to enforce a return of such writ, or allow a traverse of the return thereof if made, or upon such traverse in effect convict the respondent, without indictment or trial by jury of such abduction, and thereupon punish him therefor by unlimited imprisonment in the name of a commitment, as for a contempt in refusing to return such writ of _habeas corpus_. . that generally it is true that one court will not go behind a commitment by another court for contempt; but that this is only where the committing court has jurisdiction of the subject matter; and your petitioner submits that when the circumstances of the supposed contempt are set forth upon the record of commitment, and it further appears thereupon that the whole proceedings were _coram non judice_, and that for that and other reasons the commitment was arbitrary, illegal and void, it is the right and duty of a court of competent jurisdiction, by writ of _habeas corpus_, to relieve a citizen from imprisonment under such void commitment. . that neither the district court of the united states nor the judge thereof had any shadow or color of jurisdiction to award the writ of _habeas corpus_ directed to your petitioner, commanding him to produce the bodies of jane, daniel, and isaiah, and that such writ was void; that your petitioner was in no wise bound to make return thereto; that the return which he did make thereto was unevasive, full, and complete, and was conclusive, and not traversable; that the commitment of your petitioner as for a contempt in refusing to return said writ is arbitrary, illegal, and utterly null and void; that the whole proceedings, including the commitment for contempt, were absolutely _coram non judice_. . that in such oppression of one of her citizens, a subordinate judge of the united states has usurped upon the authority, violated the peace and derogated from the sovereign dignity of the commonwealth of pennsylvania; that all are hurt in the person of your petitioner, and that he is justified in looking with confidence to the authorities of his native state to vindicate her rights by restoring his liberty. to be relieved, therefore, from the imprisonment aforesaid, your petitioner now applies, praying that a writ of _habeas corpus_ may be issued, according to the act of assembly in such case made and provided, directed to charles hortz, the said keeper of said prison, commanding him to bring before your honorable court the body of your petitioner, to do and abide such order as your honorable court may direct. and your petitioner will ever pray, &c. passmore williamson. _moyamensing prison, august , ._ no. ii. _the opinion and decision of judge kane, referred to in the foregoing petition._ _the u. s. a. ex. rel. wheeler_ agt. _passmore williamson_--sur. _habeas corpus_, th july, .--colonel john h. wheeler, of north carolina, the united states minister to nicaragua, was on board a steamboat at one of the delaware wharves, on his way from washington to embark at new york for his post of duty. three slaves belonging to him were sitting at his side on the upper deck. just as the last signal bell was ringing, passmore williamson came up to the party--declared to the slaves that they were free--and forcibly pressing mr. wheeler aside, urged them to go ashore. he was followed by some dozen or twenty negroes, who, by muscular strength, carried the slaves to the adjoining pier; two of the slaves at least, if not all three, struggling to release themselves, and protesting their wish to remain with their master; two of the negro mob in the meantime grasping colonel wheeler by the collar, and threatening to cut his throat if he made any resistance. the slaves were borne along to a hackney coach that was in waiting, and were conveyed to some place of concealment; mr. williamson following and urging forward the mob; and giving his name and address to colonel wheeler, with the declaration that he held himself responsible towards him for whatever might be his legal rights; but taking no personally active part in the abduction after he had left the deck. i allowed a writ of _habeas corpus_ at the instance of colonel wheeler, and subsequently an _alias_; and to this last mr. williamson made return, that the persons named in the writ, "nor either of them, are not now nor was at the time of issuing of the writ, or the original writ, or at any other time, in the custody, power, or possession of the respondent, nor by him confined or restrained: wherefore he cannot have the bodies," etc. at the hearing i allowed the relator to traverse this return; and several witnesses, who were asked by him, testified to the facts as i have recited them. the district attorney, upon this state of facts, moved for williamson's commitment: . for contempt in making a false return; . to take his trial for perjury. mr. williamson then took the stand to purge himself of contempt. he admitted the facts substantially as in proof before; made it plain that he had been an adviser of the project, and had given it his confederate sanction throughout. he renewed his denial that he had control at any time over the movements of the slaves, or knew their present whereabouts. such is the case, as it was before me on the hearing. i cannot look upon this return otherwise than as illusory--in legal phrase--as evasive, if not false. it sets out that the alleged prisoners are not now, and have not been since the issue of the _habeas corpus_, in the custody, power or possession of the respondent; and in so far, it uses legally appropriate language for such a return. but it goes further, and by added words, gives an interpretation to that language, essentially variant from its legal import. it denies that the prisoners were within his power, custody or possession, at any time whatever. now, the evidence of respectable, uncontradicted witnesses, and the admission of the respondent himself, establish the fact beyond controversy, that the prisoners were at one time within his power and control. he was the person by whose counsel the so called rescue was devised. he gave the directions, and hastened to the pier to stimulate and supervise their execution. he was the spokesman and first actor after arriving there. of all the parties to the act of violence, he was the only white man, the only citizen, the only individual having recognized political rights, the only person whose social training could certainly interpret either his own duties or the rights of others, under the constitution of the land. it would be futile, and worse, to argue that he who has organized and guided, and headed a mob, to effect the abduction and imprisonment of others--he in whose presence and by whose active influence the abduction and imprisonment have been brought about--might excuse himself from responsibility by the assertion that it was not his hand that made the unlawful assault, or that he never acted as the jailer. he who unites with others to commit a crime, shares with them all the legal liabilities that attend on its commission. he chooses his company and adopts their acts. this is the retributive law of all concerted crimes; and its argument applies with peculiar force to those cases, in which redress and prevention of wrong are sought through the writ of _habeas corpus_. this, the great remedial process by which liberty is vindicated and restored, tolerates no language, in the response which it calls for, that can mask a subterfuge. the dearest interests of life, personal safety, domestic peace, social repose, all that man can value, or that is worth living for, are involved in this principle. the institutions of society would lose more than half their value, and courts of justice become impotent for protection, if the writ of _habeas corpus_ could not compel the truth--full, direct, and unequivocal--in answer to its mandate. it will not do to say to the man, whose wife or whose daughter has been abducted, "i did not abduct her; she is not in my possession; i do not detain her; inasmuch as the assault was made by the hand of my subordinates, and i have forborne to ask where they propose consummating the wrong." it is clear, then, as it seems to me, that in legal acceptance the parties whom this writ called on mr. williamson to produce, were at one time within his power and control; and his answer, so far as it relates to his power over them, makes no distinction between that time and the present. i cannot give a different interpretation to his language from that which he has practically given himself, and cannot regard him as denying his power over the prisoners now, when he does not aver that he has lost the power which he formerly had. he has thus refused, or at least he has failed, to answer to the command of the law. he has chosen to decide for himself upon the lawfulness as well as the moral propriety of his act, and to withhold the ascertainment and vindication of the rights of others from that same forum of arbitrament on which all his own rights repose. in a word, he has put himself in contempt of the process of this court and challenges its action. that action can have no alternative form. it is one too clearly defined by ancient and honored precedent, too indispensable to the administration of social justice and the protection of human right, and too potentially invoked by the special exigency of the case now before the court, to excuse even a doubt of my duty or an apology for its immediate performance. the cause was submitted to me by the learned counsel for the respondent, without argument, and i have therefore found myself at some loss to understand the grounds on which, if there be any such, they would claim the discharge of their client. one only has occurred to me as, perhaps, within his view; and on this i think it right to express my opinion. i will frankly reconsider it, however, if any future aspect of the case shall invite the review. it is this: that the persons named in this writ as detained by the respondent, were not legally slaves, inasmuch as they were within the territory of pennsylvania when they were abducted. waiving the inquiry whether, for the purpose of this question, they were within the territorial jurisdiction of pennsylvania while passing from one state to another upon the navigable waters of the united states--a point on which my first impressions are adverse to the argument--i have to say: i. that i know of no statute, either of the united states, or of pennsylvania, or of new jersey, the only other state that has a qualified jurisdiction over this part of the delaware, that authorises the forcible abduction of any person or any thing whatsoever, without claim of property, unless in aid of legal process. . that i know of no statute of pennsylvania, which affects to divest the rights of property of a citizen of north carolina, acquired and asserted under the laws of that state, because he has found it needful or convenient to pass through the territory of pennsylvania. . that i am not aware that any such statute, if such a one were shown, could be recognized as valid in a court of the united states. . that it seems to me altogether unimportant whether they were slaves or not. it would be the mockery of philanthropy to assert, that, because men had become free, they might therefore be forcibly abducted. i have said nothing of the motives by which the respondent has been governed; i have nothing to do with them; they may give him support and comfort before an infinitely higher tribunal; i do not impugn them here. nor do i allude, on the other hand, to those special claims upon our hospitable courtesy which the diplomatic character of mr. wheeler might seem to assert for him. i am doubtful whether the acts of congress give to him and his retinue, and his property, that protection as a representative of the sovereignty of the united states, which they concede to all sovereignties besides. whether, under the general law of nations, he could not ask a broader privilege than some judicial precedents might seem to admit, is not necessarily involved in the cause before me. it is enough that i find, as the case stands now, the plain and simple grounds of adjudication, that mr. williamson has not returned truthfully and fully to the writ of _habeas corpus_. he must, therefore, stand committed for a contempt of the legal process of the court. as to the second motion of the district attorney--that which looks to a committal for perjury--i withhold an expression of opinion in regard to it. it is unnecessary, because mr. williamson being under arrest, he may be charged at any time by the grand jury; and i apprehend that there may be doubts whether the affidavit should not be regarded as extrajudicial. let mr. williamson, the respondent, be committed to the custody of the marshal without bail or mainprize, as for a contempt of the court in refusing to answer to the writ of _habeas corpus_, heretofore awarded against him at the relation of mr. wheeler. n. b. a motion of the prisoner's counsel for leave to amend the return was refused, and to a question for what time the imprisonment was to be, the judge replied--"while he remains in contempt." no. iii. _the opinion of the supreme court of pennsylvania, delivered by judge black, declining to grant the petition of passmore williamson._ this is an application by passmore williamson for _habeas corpus_. he complains that he is held in custody under a commitment of the district court of the united states, for a contempt of that court in refusing to obey its process. the process which he is confined for disobeying was a _habeas corpus_ commanding him to produce the bodies of certain colored persons claimed as slaves under the law of virginia. is he entitled to the writ he has asked for? in considering what answer we shall give to this question, we are, of course, expected to be influenced, as in other cases, by the law and the constitution alone. the gentlemen who appeared as counsel for the petitioner, and who argued the motion in a way which did them great honor, pressed upon us no considerations except those which were founded upon their _legal_ views of the subject. it is argued with much earnestness, and no doubt with perfect sincerity, that we are bound to allow the writ, without stopping to consider whether the petitioner has or has not laid before us any probable cause for supposing that he is illegally detained--that every man confined in prison, except for treason or felony, is entitled to it _ex debito justitiæ_--and that we cannot refuse it without a frightful violation of the petitioner's rights, no matter how plainly it may appear on his own showing that he is held in custody for a just cause. if this be true, the case of _ex parte lawrence_, binn. , is not law. there the writ was refused because the applicant had been previously heard before another court. but if every man who applies for a _habeas corpus_ must have it as a matter of right, and without regard to anything but the mere fact that he demands it, then a court or a judge has no more power to refuse a second than a first application. is it really true that the special application, which must be made for every writ of _habeas corpus_, and the examination of the commitment, which we are bound to make before it can issue, are mere hollow and unsubstantial forms? can it be possible that the law and the courts are so completely under the control of their natural enemies, that every class of offenders against the union and the state, except traitors and felons, may be brought before us as often as they please, though we know beforehand, by their own admissions, that we cannot help but remand them immediately? if these questions must be answered in the affirmative, then we are compelled, against our will and contrary to our convictions of duty, to wage a constant warfare against the federal tribunals by firing off writs of _habeas corpus_ upon them all the time. the punitive justice of the state would suffer still more seriously. the half of the western penitentiary would be before us at philadelphia, and a similar proportion from cherry hill and moyamensing would attend our sittings at pittsburgh. to remand them would do very little good; for a new set of writs would bring them all back again. a sentence to solitary confinement would be a sentence that the convict should travel for a limited term up and down the state, in company with the officers who might have him in charge. by the same means the inmates of the lunatic asylums might be temporarily enlarged, much to their own detriment; and every soldier or seaman in the service of the country could compel his commander to bring him before the court six times a week. but the _habeas corpus_ act has never received such a construction. it is a writ of right, and may not be refused to one who shows a _prima facie_ case entitling him to be discharged or bailed. but he has no right to demand it who admits that he is in legal custody for an offence not bailable and he does make what is equivalent to such an admission when his own application and the commitment referred to in it show that he is lawfully detained. a complaint must be made and the cause of detainer submitted to a judge before the writ can go. the very object and purpose of this is to prevent it from being trifled with by those who manifestly have no right to be set at liberty. it is like a writ of error in a criminal case, which the court or judge is bound to allow if there be reason to suppose that an error has been committed, and equally bound to refuse if it be clear that the judgment must be affirmed. we are not aware that any application to this court for a writ of _habeas corpus_ has ever been successful where the judges, at the time of the allowance, were satisfied that the prisoner must be remanded. the petitioner's counsel say there is but one reported case in which it was refused, ( binn. ;) and this is urged in the argument as a reason for supposing that in all other cases the writ was issued without examination. but no such inference can fairly be drawn from the scarcity of judicial decisions upon a point like this. we do not expect to find in reports so recent as ours those long-established rules of law which the student learns from his elementary books, and which are constantly acted upon without being disputed. the _habeas corpus_ is a common law writ, and has been used in england from time immemorial, just as it is now. the statute of char. ii. c. , made no alteration in the practice of the courts in granting these writs. ( barn. and ald. to chitty's reps. .) it merely provided that the judges in vacation should have the power which the courts had previously exercised in term time, ( chitty's gen. prac. ,) and inflicted penalties upon those who should defeat its operation. the common law upon this subject was brought to america by the colonists; and most, if not all of the states, have since enacted laws resembling the english statute of charles ii. in every principal feature. the constitution of the united states declares that "the privilege of a writ of _habeas corpus_ shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it." congress has conferred upon the federal judges the power to issue such writs according to the principles and rules regulating it in other courts. seeing that the same general principles of common law on this subject prevail in england and america, and seeing also the similarity of their statutory regulations in both countries, the decisions of the english judges, as well as of the american courts, both state and federal, are entitled to our fullest respect, as settling and defining our powers and duties. blackstone ( com. ) says the writ of _habeas corpus_ should be allowed only when the court or judge is satisfied that the party hath probable cause to be delivered. he gives cogent reasons why it should not be allowed in any other case, and cites with unqualified approbation the precedents set by sir edward coke and chief justice vaughan in cases where they had refused it. chitty lays down the rule ( cr. law, ; general prac. - .) it seems to have been acted upon by all the judges. the writ was refused in _rex_ v. _scheiner_, ( burr. ,) and in the case of the three spanish sailors, ( black. rep. .) in hobhouse's case, ( barn. and ald. ,) it was fully settled by a unanimous court, as the true construction of the statute, that the writ is never to be allowed, if upon view of the commitment it be manifest that the prisoner must be remanded. in new york, when the statute in force there was precisely like ours, (so far i mean as this question is concerned,) it was decided by the supreme court ( johns. ) that the allowance of the writ was a matter within the discretion of the court, depending on the grounds laid in the application. it was refused in huster's case, ( , c. ) and in _ex parte ferguson_, ( johns. rep. .) in addition to this we have the opinion of chief justice marshall, in watkins's case, ( peters, ) that the writ ought not to be awarded if the court is satisfied that the prisoner must be remanded. it was accordingly refused by the supreme court of the united states in that case, as it had been before in kearney's case. on the whole, we are thoroughly satisfied that our duty requires us to view and examine the cause of detainer now, and to make an end of the business at once, if it appear that we have no power to discharge him on the return of the writ. this prisoner, as already said, is confined on a sentence of the district court of the united states for a contempt. a _habeas corpus_ is not a writ of error. it cannot bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. on a _habeas corpus_, the judgment, even of a subordinate state court, cannot be disregarded, reversed or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were before us on appeal or writ of error. we can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. it is conclusively presumed to be right until it is regularly brought up for revision. we decided this three years ago at sunbury, in a case which we all thought one of much hardship. but the rule is so familiar, so universally acknowledged, and so reasonable in itself, that it requires only to be stated. it applies with still greater force, or at least for stronger reasons, to the decisions of the federal courts. over them we have no control at all, under any circumstances, or by any process that could be devised. those tribunals belong to a different judicial system from ours. they administer a different code of laws, and are responsible to a different sovereignty. the district court of the united states is as independent of us as we are of it--as independent as the supreme court of the united states is of either. what the law and the constitution have forbidden us to do directly on writ of error, we, of course, cannot do indirectly by _habeas corpus_. but the petitioner's counsel have put his case on the ground that the whole proceeding against him in the district court was _coram non judice_, null and void. it is certainly true that a void judgment may be regarded as no judgment at all; and every judgment is void which clearly appears on its own face to have been pronounced by a court having no jurisdiction or authority in the subject matter. for instance, if a federal court should convict and sentence a citizen for libel, or if a state court, having no jurisdiction except in civil pleas, should try an indictment for a crime and convict the party--in these cases the judgments would be wholly void. if the petitioner can bring himself within this principle, then there is no judgment against him; he is wrongfully imprisoned, and we must order him to be brought out and discharged. what is he detained for? the answer is easy and simple. the commitment shows that he was tried, found guilty, and sentenced for _contempt of court_, and nothing else. he is now confined in execution of that sentence, and for no other cause. this was a distinct and substantive offence against the authority and government of the united states. does any body doubt the jurisdiction of the district court to punish contempt? certainly not. all courts have this power, and must necessarily have it; otherwise they could not protect themselves from insult, or enforce obedience to their process. without it they would be utterly powerless. the authority to deal with an offender of this class belongs exclusively to the court in which the offence is committed, and no other court, not even the highest, can interfere with its exercise, either by writ of error, mandamus, or _habeas corpus_. if the power be abused, there is no remedy but impeachment. the law was so held by this court in m'laughlin's case, ( w. & s. ,) and by the supreme court of the united states in kearney's case, ( wharton, .) it was solemnly settled as part of the common law, in brass crossley's case, ( wilson, ,) by a court in which sat two of the foremost jurists that england ever produced. we have not the smallest doubt that it is the law; and we must administer it as we find it. the only attempt ever made to disregard it was by a new york judge, ( johns. rep. ,) who was not supported by his brethren. this attempt was followed by all the evil and confusion which blackstone and kent and story declared to be its necessary consequences. whoever will trace that singular controversy to its termination will see that the chancellor and the majority of the supreme court, though once outvoted in the senate, were never answered. the senate itself yielded to the force of the truths which the supreme court had laid down so clearly, and the judgment of the court of errors in yates's case ( johns. ) was overruled by the same court the year afterward in _yates_ v. _lansing_, ( johns. rep. ,) which grew out of the very same transaction, and depended on the same principles. still further reflection at a later period induced the senate to join the popular branch of the legislature in passing a statute which effectually prevents one judge from interfering by _habeas corpus_ with the judgment of another on a question of contempt. these principles being settled, it follows irresistibly that the district court of the united states had power and jurisdiction to decide what acts constitute a contempt against it; to determine whether the petitioner had been guilty of contempt; and to inflict upon him the punishment which in his opinion he ought to suffer. if we fully believed the petitioner to be innocent--if we were sure that the court which convicted him misunderstood the facts, or misapplied the law--still we could not reëxamine the evidence or rejudge the justice of the case, without grossly disregarding what we know to be the law of the land. the judge of the district court decided the question on his own constitutional responsibility. even if he could be shown to have acted tyrannically or corruptly, he could be called to answer for it only in the senate of the united states. but the counsel for the petitioner go behind the proceeding in which he was convicted, and argue that the sentence for contempt is void, because the court had no jurisdiction of a certain other matter which it was investigating, or attempting to investigate, when the contempt was committed. we find a judgment against him in one case, and he complains about another, in which there is no judgment. he is suffering for an offence against the united states; and he says he is innocent of any wrong to a particular individual. he is conclusively adjudged guilty of contempt; and he tells us that the court had no jurisdiction to restore mr. wheeler's slaves. it must be remembered that contempt of court is a specific criminal offence. it is punished sometimes by indictment, and sometimes in a summary proceeding, as it was in this case. in either mode of trial the adjudication against the offender is a conviction, and the commitment in consequence is execution. ( wheat. .) this is well settled, and i believe has never been doubted. certainly the learned counsel for the petitioner have not denied it. the contempt may be connected with some particular cause, or it may consist in misbehavior which has a tendency to obstruct the administration of justice generally. when it is committed in a pending cause, the proceeding to punish it is a proceeding by itself. it is not entitled in the cause pending, but on the criminal side. (wall. .) the record of a conviction for contempt is as distinct from the matter under investigation, when it was committed, as an indictment for perjury is, from the cause in which the false oath was taken. can a person convicted of perjury ask us to deliver him from the penitentiary, on showing that the oath on which the perjury is assigned, was taken in a cause of which the court had no jurisdiction? would any judge in the commonwealth listen to such a reason for treating the sentence as void? if, instead of swearing falsely, he refuses to be sworn at all, and he is convicted, not of perjury, but of contempt, the same rule applies, and with a force precisely equal. if it be really true that no contempt can be committed against a court while it is enquiring into matter beyond its jurisdiction, and if the fact was so in this case, then the petitioner had a good defence, and he ought to have made it on his trial. to make it after conviction is too late. to make it here is to produce it before the wrong tribunal. every judgment must be conclusive until reversed. such is the character, nature, and essence of all judgments. if it be not conclusive, it is not a judgment. a court must either have power to settle a given question finally and forever, so as to preclude all further inquiry upon it, or else it has no power to make any decision at all. to say that a court may determine a matter, and that another court may regard the matter afterward as open and undetermined, is an absurdity in terms. it is most especially necessary that convictions for contempt in our courts should be final, conclusive, and free from reëxamination by other courts on _habeas corpus_. if the law were not so, our judicial system would break to pieces in a month. courts totally unconnected with each other would be coming in constant collision. the inferior courts would revise all the decisions of the judges placed over and above them. a party unwilling to be tried in this court, need only defy our authority, and if we commit him, take out his _habeas corpus_ before an associate judge of his own choosing, and if that judge is of opinion that we ought not to try him, there is an end of the case. the doctrine is so plainly against the reason of the thing, that it would be wonderful, indeed, if any authority for it could be found in the books, except the overruled decision of mr. justice spencer of new york, already referred to, and some efforts of the same kind to control the other courts made by sir edward coke, in the king's bench, which are now universally admitted to have been illegal, as well as rude and intemperate. on the other hand, we have all the english judges, and all our own, disclaiming their power to interfere with or control one another in this way. i will content myself by simply referring to some of the books in which it is established, that the conviction of contempt is a separate proceeding, and is conclusive of every fact which might have been urged on the trial for contempt, and among others want of jurisdiction to try the cause in which the contempt was committed. ( johns. rep. , _et sequ._ the opinion of chief justice kent, on pages to . johns. . johns. . hill. . iredell, . ib. . sandf. . carter, . blackf. . miss. . wheeler's criminal cases, p. . ad. and ellis, .) these cases will speak for themselves; but i may remark as to the last one, that the very same objection was made there and here. the party was convicted of contempt in not obeying a decree. he claimed his discharge on _habeas corpus_ because the chancellor had no jurisdiction to make the decree, being interested in the cause himself. but the court of queen's bench held that if that was a defence it should have been made on the trial for contempt, and the conviction was conclusive. we cannot choose but hold the same rule here. any other would be a violation of the law which is established and sustained by all authority and all reason. but certainly the want of jurisdiction alleged in this case would not even have been a defence on the trial. the proposition that a court is powerless to punish for disorderly conduct, or disobedience of its process in a case which it ought ultimately to dismiss, for want of jurisdiction, is not only unsupported by judicial authority, but we think it is new even as an argument at the bar. we, ourselves, have heard many cases through and through before we became convinced that it was our duty to remit the parties to another tribunal. but we never thought that our process could be defied in such cases more than in others. there are some proceedings in which the want of jurisdiction would be seen at the first blush; but there are others in which the court must inquire into all the facts before it can possibly know whether it has jurisdiction or not. any one who obstructs or baffles a judicial investigation for that purpose, is unquestionably guilty of a crime, for which he may, and ought to be tried, convicted, and punished. suppose a local action to be brought in the wrong county; this is a defence to the action, but a defence which must be made out like any other. while it is pending, neither a party, nor an officer, nor any other person, can safely insult the court, or resist its order. the court may not have power to decide upon the merits of the case; but it has undoubted power to try whether the wrong was done within its jurisdiction or not. suppose mr. williamson to be called before the circuit court of the united states as a witness in a trial for murder, alleged to be committed on the high seas. can he refuse to be sworn, and at his trial for contempt, justify himself on the ground that the murder was committed within the limits of a state, and thereby triable only in a state court? if he can, he can justify perjury for the same reason. but such a defence for either crime, has never been heard of since the beginning of the world. much less can it be shown, after conviction, as a ground for declaring the sentence void. the wish which the petitioner is convicted of disobeying was legal on its face. it enjoined upon him a simple duty, which he ought to have understood and performed without hesitation. that he did not do so is a fact conclusively established by the adjudication which the court made upon it. i say the wish was legal, because the act of congress gives to all the courts of the united states the power "to issue writs of _habeas corpus_, when necessary for the exercise of their jurisdiction, and agreeable to the principles and usages of law." chief justice marshall decided in burr's trial, that the principles and usages referred to in this act were those of the common law. a part of the jurisdiction of the district court consists in restoring fugitive slaves; and the _habeas corpus_ may be used in aid of it when necessary. it was awarded here upon the application of a person who complained that his slaves were detained from him. unless they were fugitive slaves they could not be slaves at all, according to the petitioner's own doctrine, and if the judge took that view of the subject, he was bound to award the writ. if the persons mentioned on it had turned out on the hearing to be fugitives from labor, the duty of the district judge to restore them, or his power to bring them before him on a _habeas corpus_, would have been disputed by none except the very few who think that the constitution and law on that subject ought not to be obeyed. the duty of the court to enquire into the facts on which its jurisdiction depends is as plain as its duty not to exceed it when it is ascertained. but mr. williamson stopped the investigation _in limine_; and the consequence is, that every thing in the case remains unsettled, whether the persons named in the writ were slaves or free. whether mr. wheeler was the owner of them--whether they were unlawfully taken from him--whether the court had jurisdiction to restore them--all these points are left open for want of a proper return. it is not our business to say how they ought to be decided; but we doubt not that the learned and upright magistrate who presides in the district court would have decided them as rightly as any judge in all the country. mr. williamson had no right to arrest the inquiry because he supposed that an error would be committed on the question of jurisdiction, or any other question. if the assertions which his counsel now make on the law and the facts be correct, he prevented an adjudication in favor of his proteges, and thus did them a wrong, which is probably a greater offence in his own eyes than any thing he could do against mr. wheeler's rights. there is no reason to believe that any trouble whatever would have come out of the case, if he had made a true, full, and special return of all the facts; for then the rights of all parties, black and white, could have been settled, or the matter dismissed for want of jurisdiction, if the law so required. it is argued that the court had no jurisdiction, because it was not averred that the slaves were fugitives, but merely that they owed service by the laws of virginia. conceding, for the argument's sake, that this was the only ground on which the court could have interfered--conceding that it is not substantially alleged in the petition of mr. wheeler--the proceedings were, nevertheless, not void for that reason. the federal tribunals, though courts of limited jurisdiction, are not _inferior_ courts. their judgments, until reversed by the proper appellate court, are valid and conclusive upon the parties, though the jurisdiction be not alleged in the pleadings nor on any part of the record. ( wheaton, .) even if this were not settled and clear law, it would still be certain that the fact on which jurisdiction depends need not be stated _in the process_. the want of such a statement in the body of the _habeas corpus_, or in the petition on which it was awarded, did not give mr. williamson a right to treat it with contempt. if it did, then the courts of the united states must get out the ground of their jurisdiction in every subpoena for a witness; and a defective or untrue averment will authorize the witness to be as contumacious as he sees fit. but all that was said in the argument about the petition, the writ, and the facts which were proved or could be proved, refers to the _evidence_ in which the conviction took place. this has passed _in rem judicatam_. we cannot go one step behind the conviction itself. we could not reverse it if there had been no evidence at all. we have no more authority in law to come between the prisoner and the court to free him from a sentence like this, than we would have to countermand an order issued by the commander-in-chief to the united states army. we have no authority, jurisdiction, or power to decide any thing here except the simple fact that the district court had power to punish for contempt, a person who disobeys its process--that the petitioner is convicted of such contempt--and that the conviction is conclusive upon us. the jurisdiction of the court on the case which had been before it, and every thing else which preceded the conviction, are out of our reach, and they are not examinable by us--and, of course, not now intended to be decided. there may be cases in which we ought to check usurpation of power by the federal courts. if one of them would presume, upon any pretence whatever, to take out of our hands a prisoner convicted of contempt in this court, we would resist it by all proper and legal means. what we would not permit them to do against us we will not do against them. we must maintain the rights of the state and its courts, for to them alone can the people look for a competent administration of their domestic concerns; but we will do nothing to impair the constitutional vigor of the general government, which is "the sheet anchor of our peace at home and our safety abroad." some complaint was made in the argument about the sentence being for an indefinite time. if this were erroneous it would not avail here, since we have as little power to revise the judgment for that reason as for any other. but it is not illegal nor contrary to the usual rule in such cases. it means commitment until the party shall make proper submission. ( lord raymond, . johns. rep. .) the law will not bargain with anybody to let its courts be defied for a specific term of imprisonment. there are many persons who would gladly purchase the honors of martyrdom in a popular cause at almost any given price, while others are deterred by a mere show of punishment. each is detained until he finds himself willing to conform. this is merciful to the submissive and not too severe upon the refractory. the petitioner, therefore, carries the key of his prison in his own pocket. he can come out when he will, by making terms with the court that sent him there. but if he choose to struggle for a triumph--if nothing will content him but a clean victory or a clean defeat--he cannot expect us to aid him. our duties are of a widely different kind. they consist in discouraging as much as in us lies all such contests with the legal authorities of the country. _the writ of habeas corpus is refused._ no. iv. _the dissenting opinion of judge knox in favor of granting the petition._ knox, j. i do not concur in the opinion of the majority of this court refusing the writ of _habeas corpus_, and shall state the reasons why, in my judgment, the writ should be granted. this application was made to the court whilst holding a special session at bedford, on the th day of august; and upon an intimation from the counsel that in case the court had any difficulty upon the question of awarding the writ, they would like to be heard, thursday, the th of august, was fixed for the hearing. on that day an argument was made by messrs. meredith and gilpin, in favor of the allowance of the writ. i may as well remark here, that upon the presentation of the petition i was in favor of awarding the _habeas corpus_, greatly preferring that the right of the petitioner to his discharge should be determined upon the return of the writ. if this course had been adopted, we should have had the views of counsel in opposition to the discharge, and, moreover, if necessary, we could, after the return, have examined into the facts of the case. i am in favor of granting this writ, first, because i believe the petitioner has the right to demand it at our hands. from the time of magna charta the writ of _habeas corpus_ has been considered a writ of right, which every person is entitled to _ex debito justiciæ_. "but the benefit of it," says chancellor kent, "was in a great degree eluded in england prior to the statute of charles ii., as the judges only awarded it in term time, and they assumed a discretionary power of awarding or refusing it." kent commentaries, . and bacon says, "notwithstanding the writ of _habeas corpus_ be a writ of right, and what the subject is entitled to, yet the provision of the law herein being in a great measure eluded by the judge as being only enabled to award it in term time, as also by an imagined notion of the judges that they had a discretionary power of granting or refusing it," the act of charles ii. was made for remedy thereof. i am aware that both in england and this country, since the passage of the statute of charles ii., it has been held that where it clearly appeared that the prisoner must be remanded, it was improper to grant the writ; but i know of no such construction upon our act of th february, . the people of the united states have ever regarded the privileges of the _habeas corpus_ as a most invaluable right, to secure which, an interdiction against its suspension, "unless when in cases of rebellion or invasion the public safety may require it," is inserted in the organic law of the union; and in addition to our act of , which is broader and more comprehensive than the english statute, a provision in terms like that in the constitution of the united states is to be found in the constitution of this state. it is difficult to conceive how words could be more imperative in their character than those to be found in our statute of . the judges named are authorized and required, either in vacation or term time, upon the due application of any person committed or detained for any criminal or supposed criminal matter, except for treason or felony, or confined or restrained of his or her liberty, under any color or pretence whatsoever, to award and grant a _habeas corpus_, directed to the person or persons in whose custody the prisoner is detained, returnable immediately. and the refusal or neglect to grant the writ required by the act to be granted, renders the judge so neglecting or refusing liable to the penalty of three hundred pounds. i suppose no one will doubt the power of the legislature to require this writ to be issued by the judges of the commonwealth. and it is tolerably plain that where, in express words, a certain thing is directed to be done, to which is added a penalty for not doing it, no discretion is to be used in obeying the mandate. the english statute confined the penalty to a neglect or refusal to grant the writ in vacation time, and from this a discretionary power to refuse it in term time was inferred, but our act of assembly does not limit the penalty to a refusal in vacation, but is sufficiently comprehensive to embrace neglect or refusal in vacation or in term time. i have looked in vain through the numerous cases reported in this state to find that the writ was ever denied to one whose application was in due form, and whose case was within the purview of the act of assembly. in _respublica_ v. _arnold_, yates, , the writ was refused because the petitioner was not restrained of his liberty, and therefore not within the terms of the statute; and in _ex parte lawrence_, binney, , it was held that the act of assembly did not oblige the court to grant a _habeas corpus_ where the case had already been heard upon the same evidence by another court. without going into an examination of the numerous cases where the writ has been allowed, i believe it can be safely affirmed that the denial of the writ in a case like the present is without a precedent, and contrary to the uniform practice of the bench, and against the universal understanding of the profession and the people; but what is worse still, it appears to me to be in direct violation of the law itself. it may be said that the law never requires a useless thing to be done. grant it. but how can it be determined to be useless until the case is heard? whether there is ground for the writ is to be determined according to law, and the law requires that the determination should follow, not precede the return. an application was made to the chief justice of this court for a writ of _habeas corpus_ previous to the application now being considered. the writ was refused, and it was stated in the opinion that the counsel for the petitioner waived the right to the writ, or did not desire it to be issued, if the chief justice should be of the opinion that there was not sufficient cause set forth in the petition for the prisoner's discharge. but this can in nowise prejudice the petitioner's right to the writ which he now demands. even had the writ been awarded, and the case heard, and the discharge refused, it would not be within the decision in _ex parte lawrence_, for there the hearing was before a court in term time, upon a full examination of the case upon evidence adduced, and not at chambers; but the more obvious distinction here is that the writ has never been awarded. and the agreement of counsel that it should not be in a certain event, even if binding upon the client there, would not affect him here. now, while i aver that the writ of _habeas corpus, ad subjiciendum_, is a writ of right, i do not wish to be understood that it should issue as a matter of course. undoubtedly the petition must be in due form, and it must show upon its face that the petitioner is entitled to relief. it may be refused if, upon the application itself, it appears that, if admitted to be true, the applicant is not entitled to relief; but where, as in the case before us, the petition alleges an illegal restraint of the petitioner's liberty, under an order from a judge beyond his jurisdiction, we are bound in the first place to take the allegation as true; and so taking it, a probable cause is made out, and there is no longer a discretionary power to refuse the writ. whether the allegation of the want of jurisdiction is true or not, is determinable only upon the return of the writ. if one has averred in his petition what, if true, would afford him relief, it is his constitutional right to be present when the truth of his allegations is inquired into; and it is also his undoubted right, under our _habeas corpus_ act, to establish his allegations by evidence to be introduced and heard upon the return of the writ. to deny him the writ is virtually to condemn him unheard; and as i can see nothing in this case which requires at our hands an extraordinary resistance against the prayer of the petitioner to show that his imprisonment is illegal, that he is deprived of his liberty without due course of law. i am in favor of treating him as like cases have uniformly been treated in this commonwealth, by awarding the writ of _habeas corpus_, and reserving the inquiry as to his right to be discharged until the return of the writ; but as a majority of my brethren have come to a different conclusion, we must inquire next into the right of the applicant to be discharged as the case is now presented. i suppose it to be undoubted law that in a case where a court acting beyond its jurisdiction has committed a person to prison, the prisoner, under our _habeas corpus_ act, is entitled to his discharge, and that it makes no difference whether the court thus transcending its jurisdiction assumes to act as a court of the union or of the commonwealth. if a principle, apparently so just and clear, needs for its support adjudicated cases, reference can be had to _wise_ v. _withers_, cranch, ; peters, condensed rep. ; _rose_ v. _hinely_, cranch, , ; _den_ v. _harden_, paine, rep. , and ; cranch, ; _bollman_ v. _swartout_, cranch, ; kearney's case, wheaton, ; _kemp_ v. _kennedy_, peters, c. c. rep. ; _wickes_ v. _calk_, har. and j. ; _griffith_ v. _frazier_, cranch, ; _com._ v. _smith_, sup. court penn., wharton digest, ; _com. ex relatione lockington_ v. _the jailer_, &c., sup. court manuscript, , wharton's digest, vol. i. ; _albec_ v. _ward_, mass. . some of these cases decide that the act of a court without jurisdiction is void; some, that the proper remedy for an imprisonment by a court having no jurisdiction is the writ of _habeas corpus_; and others, that it may issue from a state court to discharge a prisoner committed under process from a federal court, if it clearly appears that the federal court had no jurisdiction of the case; altogether, they establish the point that the petitioner is entitled to relief, if he is restrained of his liberty by a court acting beyond its jurisdiction. neither do i conceive it to be correct to say that the applicant cannot now question the jurisdiction of the judge of the district court because he did not challenge it on the hearing. there are many rights and privileges which a party to a judicial controversy may lose if not claimed in due time, but not so the question of jurisdiction; this cannot be given by express consent, much less will acquiescence for a time waive an objection to it. (see u. s. digest, vol. i. p. , pl. , and cases there cited.) it would be a harsh rule to apply to one who is in prison "without bail or mainprize," that his omission to speak on the first opportunity forever closed his mouth from denying the power of the court to deprive him of his liberty. i deny that the law is a trap for the feet of the unwary. where personal liberty is concerned, it is a shield for the protection of the citizen, and it will answer his call even if made after the prison door has been closed on him. if, then, the want of jurisdiction is fatal, and the inquiry as to its existence is still open, the only question that remains to be considered is this: had the judge of the district court for the eastern district of the united states power to issue the writ of _habeas corpus_, directed to passmore williamson, upon the petition of john h. wheeler? the power of that court to commit for a contempt is not denied, and i understand it to be conceded as a general rule by the petitioner's counsel, that one court will not reëxamine a commitment for contempt by another court of competent jurisdiction; but if the court has no authority to issue the writ, the respondent was not bound to answer it, and his neglect or refusal to do so would not authorize his punishment for contempt. the first position which i shall take in considering the question of jurisdiction, is that the courts of the united states have no power to award the writ of _habeas corpus_ except such as is given to them by the acts of congress. "courts which originate in the common law possess a jurisdiction which must be regulated by the common law; but the courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend their jurisdiction. the power to award the writ by any of the courts of the united states must be given by written law." _ex parte swartout_, cranch, . _ex parte barre_, howard, . the power of the united states to issue writs of _habeas corpus_ is derived either from the fourteenth section of the act of th september, , or from the seventh section of the act of march , . the section from the act of provides that "all the courts of the united states may issue writs of _scire facias_, _habeas corpus_, and all other writs not especially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. and either of the justices of the supreme court, as well as the judges of the district courts, may grant writs of _habeas_, for the purpose of inquiry into the cause of commitment; but writs of _habeas corpus_ shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the united states, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." the seventh section of the act of d march, , authorizes "either of the justices of the supreme court, or judge of any district court of the united states, in addition, to the authority already conferred by law, to grant writs of _habeas corpus_ in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by authority of law, for any act done, or omitted to be done, in pursuance of a law of the united states, or any order, process, or decree of any judge or court thereof, any thing in any act of congress to the contrary notwithstanding." now, unless the writ of _habeas corpus_ issued by the judge of the district court was necessary for the exercise of the jurisdiction of the said court, or was to inquire into a commitment under, or by color of the authority of the united states, or to relieve some one imprisoned for an act done, or omitted to be done, in pursuance of a law of the united states, the district court had no power to issue it, and a commitment for contempt in refusing to answer it is an illegal imprisonment, which, under our _habeas corpus_ act, we are imperatively required to set aside. it cannot be pretended that the writ was either asked for or granted to inquire into any commitment made under or by color of the authority of the united states, or to relieve from imprisonment for an act done or omitted to be done in pursuance of a law of the united states, and therefore we may confine our inquiry solely to the question whether it was necessary for the exercise of any jurisdiction given to the district court of the united states for the eastern district of pennsylvania. this brings us to the question of the jurisdiction of the courts of the united states, and more particularly that of the district court. and here, without desiring, or intending to discuss at large the nature and powers of the federal government, it is proper to repeat what has been so often said, and what has never been denied, that it is a government of enumerated powers, delegated to it by the several states, or the people thereof, without capacity to enlarge or extend the powers so delegated and enumerated, and that its courts of justice are courts of limited jurisdiction, deriving their authority from the constitution of the united states, and the acts of congress under the constitution. let us see what judicial power was given by the people to the federal government, for that alone can be rightly exercised by its courts. "the judicial power" (says the second section of the third article) "shall extend to all cases in law and equity arising under this constitution, the laws of the united states, and treaties made, or which shall be made under their authority, to all cases affecting embassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction, to controversies to which the united states shall be a party, to controversies between two or more states, between a state and citizen of another state, between citizens of different states, between citizens of the same state, claiming lands under grants of different states, and between a state, or the citizen thereof, and foreign states, citizens or subjects." the amendments subsequently made to this article have no bearing upon the question under consideration, nor is it necessary to examine the various acts of congress conferring jurisdiction upon the courts of the united states, for no act of congress can be found extending the jurisdiction beyond what is given by the constitution, so far as relates to the question we are now considering. and if such an act should be passed it would be in direct conflict with the tenth amended article of the constitution, which declares that "the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." if this case can be brought within the judicial power of the courts of the united states, it must be either-- st. because it arises under the constitution or the laws of the united states. or, d. because it is a controversy between citizens of different states, for it is very plain that there is no other clause in the constitution which, by the most latitudinarian construction, could be made to include it. did it arise under the constitution or the laws of the united states? in order to give a satisfactory answer to this question, it is necessary to see what the case was. if we confine ourselves strictly to the record from the district court, we learn from it that, on the th day of july last, john h. wheeler presented his petition to the hon. j. k. kane, judge of the district court for the eastern district of pennsylvania, setting forth that he was the owner of three persons held to service or labor by the laws of the state of virginia; such persons being respectively named jane, aged about thirty-five years, daniel, aged about twelve years, and isaiah, aged about seven years, persons of color; and that they were detained from his possession by passmore williamson, but not for any criminal or supposed criminal matter. in accordance with the prayer of the petition, a writ of _habeas corpus_ was awarded, commanding passmore williamson to bring the bodies of the said jane, daniel, and isaiah, before the judge of the district court, forthwith. to this writ, passmore williamson made a return, verified by his affirmation, that the said jane, daniel, and isaiah, nor either of them, were at the time of the issuing of the writ, nor at the time of the return, nor at any other time, in the custody, power, or possession of, nor confined, nor restrained their liberty by him; and that, therefore, he could not produce the bodies as he was commanded. this return was made on the th day of july, a. d. . "whereupon, afterwards, to wit: on the th day of july, a. d. , (says the record,) the counsel for the several parties having been heard, and the said return having been duly considered, it is ordered and adjudged by the court that the said passmore williamson be committed to the custody of the marshal, without bail or mainprize, as for a contempt in refusing to make return to the writ of _habeas corpus_, heretofore issued against him, at the instance of mr. john h. wheeler." such is the record. now, while i am willing to admit that the want of jurisdiction should be made clear, i deny that in a case under our _habeas corpus_ act the party averring want of jurisdiction cannot go behind the record to establish its non-existence. jurisdiction, or the absence thereof, is a mixed question of law and fact. it is the province of fact to ascertain what the case is, and of law to determine whether the jurisdiction attaches to the case so ascertained. "and" says the second section of our act of , "that the said judge or justice may, according to the intent and meaning of this act, be enabled, by investigating the truth of the circumstances of the case, to determine whether, according to law, the said prisoner ought to be bailed, remanded, or discharged, the return may, before or after it is filed, by leave of the said judge or justice, be amended, and also suggestions made against it, so that thereby material facts may be ascertained." this provision applies to cases of commitment or detainer for any criminal or supposed criminal matter, but the fourteenth section, which applies to cases of restraint of liberty "under any color or pretence whatever," provides that "the court, judge, or justice, before whom the party so confined or restrained shall be brought, shall, after the return made, proceed in the same manner as is hereinbefore prescribed, to examine into the facts relating to the case, and into the cause of such confinement or restraint, and thereupon either bail, remand, or discharge the party so brought, as to justice shall appertain." the right and duty of the supreme court of a state to protect a citizen thereof from imprisonment by a judge of a united states court having no jurisdiction over the cause of complaint, is so manifest and so essentially necessary under our dual system of government, that i cannot believe that this right will ever be abandoned or the duty avoided; but, if we concede, what appears to be the law of the later cases in the federal courts, that the jurisdiction need not appear affirmatively, and add to it that the want of jurisdiction shall not be proved by evidence outside of the record, we do virtually deny to the people of the state the right to question the validity of an order by a federal judge consigning them to the walls of a prison "without bail or mainprize." what a mockery to say to one restrained of his liberty, "true, if the judge or court under whose order you are in prison acted without jurisdiction, you are entitled to be discharged, but the burden is upon you to show that there was no jurisdiction, and in showing this we will not permit you to go beyond the record made up by the party against whom you complain!" as the petitioner would be legally entitled, upon the return of the writ, to establish the truth of the facts set forth in his petition, so far as they bear upon the question of jurisdiction, we are bound before the return to assume that the facts are true as stated, and so taking them, the case is this: john h. wheeler voluntarily brought into the state of pennsylvania three persons of color, held by him in the state of virginia as slaves, with the intention of passing through this state. while on board of a steamboat near walnut street wharf, in the city of philadelphia, the petitioner, passmore williamson, informed the mother that she was free by the laws of pennsylvania, who, in the language of the petition, "expressed her desire to have her freedom; and finally, with her children, left the boat of her own free will and accord, and without coercion or compulsion of any kind; and having seen her in possession of her liberty with her children, your petitioner (says the petition) returned to his place of business, and has never since seen the said jane, daniel, and isaiah, or either of them, nor does he know where they are, nor has he had any connection of any kind with the subject." one owning slaves in a slave state voluntarily brings them into a free state, with the intention of passing through the free state. while there, upon being told that they are free, the slaves leave their master. can a judge of the district court of the united states compel their restoration through the medium of a writ of _habeas corpus_ directed to the person by whom they were informed of their freedom? or, in other words, is it a case arising under the constitution and laws of the united states? what article or section of the constitution has any bearing upon the right of a master to pass through a free state with his slave or slaves? or, when has congress ever attempted to legislate upon this question? i most unhesitatingly aver that neither in the constitution of the united states nor in the acts of congress can there be found a sentence which has any effect upon this question whatever. it is a question to be decided by the law of the state where the person is for the time being, and that law must be determined by the judges of the state, who have sworn to support the constitution of the state as well as that of the united states--an oath which is never taken by a federal judge. upon this question of jurisdiction it is wholly immaterial whether by the law of pennsylvania a slaveholder has or has not the right of passing through our state with his slaves. if he has the right, it is not in virtue of the constitution or laws of the united states, but by the law of the state, and if no such right exists, it is because the state law has forbidden it, or has failed to recognize it. it is for the state alone to legislate upon this subject, and there is no power on earth to call her to an account for her acts of omission and commission in this behalf. if this case, by any reasonable construction, be brought within the terms of the third clause of the second section of article four of the constitution of the united states, jurisdiction might be claimed for the federal courts, as then it would be a case arising under the constitution of the united states, although i believe the writ of _habeas corpus_ is no part of the machinery designed by congress for the rendition of fugitives from labor. "no person (says the clause above mentioned) held to service or labor in one state under the laws thereof escaping into another shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." by reference to the debates in the convention, it will be seen that this clause was inserted at the request of delegates from southern states, and on the declaration that in the absence of a constitutional provision the right of reclamation would not exist unless given by state authority. if it had been intended to cover the right of transit, words would have been used evidencing such intention. happily there is no contrariety in the construction which has been placed upon this clause in the constitution. no judge has ever so manifestly disregarded its plain and unequivocal language as to hold that it applies to a slave voluntarily brought into a free state by his master. on the contrary, there is abundant authority that such a case is not within either the letter or the spirit of the constitutional provision for the rendition of fugitives from labor. said mr. justice washington, _ex parte simmons_, w. c. c. reports, :--"the slave in this case having been voluntarily brought by his master into this state, i have no cognizance of the case, so far as respects this application, and the master must abide by the laws of this state, so far as they may affect his right. if the man claimed as a slave be not entitled to his freedom under the laws of this state, the master must pursue such remedy for his recovery as the laws of the state have provided for him." in _jones_ v. _vanzandt_, howard, , mr. justice woodbury uses language equally expressive: "but the power of national law," said that eminent jurist, "to pursue and regain most kinds of property in the limits of a foreign government is rather an act of comity than strict right, and hence as property in persons might not thus be recognized in some of the states in the union, and its reclamation not be allowed through either courtesy or right, this clause was undoubtedly introduced into the constitution as one of its compromises for the safety of that portion of the union which did not permit such property, and which otherwise might often be deprived of it entirely by its merely crossing the line of an adjoining state; this was thought to be too harsh a doctrine in respect to any title to property of a friendly neighbor, not brought nor placed in another state under state laws by the owner himself, but escaping there against his consent, and often forthwith pursued in order to be reclaimed." other authorities might be quoted to the same effect, but it is unnecessary, for if it be not clear that one voluntarily brought into a state is not a fugitive, no judicial language can ever make him so. will we then, for the sake of sustaining this jurisdiction, presume that these slaves of mr. wheeler escaped from virginia into pennsylvania, when no such allegation was made in his petition, when it is expressly stated in the petition of mr. williamson, verified by his affirmation, that they were brought here voluntarily by their master, and when this fact is virtually conceded by the judge of the district court in his opinion? great as is my respect for the judicial authorities of the federal government, i cannot consent to stultify myself in order to sustain their unauthorized judgments, and more particularly where, as in the case before us, it would be at the expense of the liberty of a citizen of this commonwealth. the only remaining ground upon which this jurisdiction can be claimed, is that it was in a controversy between citizens of different states, and i shall dismiss this branch of the case simply by affirming-- , that the proceeding by _habeas corpus_ is in no legal sense a controversy between private parties; and , if it were, to the circuit court alone is given this jurisdiction. for the correctness of the first position, i refer to the opinion of mr. justice baldwin in _holmes_ v. _jennifer_, published in the appendix to peters, and to that of judge betts, of the circuit court of new york, in _berry_ v. _mercein et al._ reported in howard, . and for the second, to the th section of the judiciary act, passed on the th of september, . my view of this case had been committed to writing before i had seen or heard the opinion of the majority of the court. having heard it hastily read but once, i may mistake its purport, but if i do not, it places the refusal of the _habeas corpus_ mainly upon the ground that the conviction for contempt was a separate proceeding, and that, as the district court had jurisdiction to punish for contempts, we have no power to review its decision. or, as it appears from the record that the prisoner is in custody upon a conviction for contempt, we are powerless to grant him relief. notwithstanding the numerous cases that are cited to sustain this position, it appears to me to be as novel as it is dangerous. every court of justice in this country has, in some degree, the power to commit for contempt. can it be possible that a citizen once committed for contempt is beyond the hope of relief, even although the record shows that the alleged contempt was not within the power of the court to punish summarily? suppose that the judge of the district court should send to prison an editor of a newspaper for a contempt of his court in commenting upon his decision in this very case; would the prisoner be beyond the reach of our writ of _habeas corpus_? if he would, our boasted security of personal liberty is in truth an idle boast, and our constitutional guaranties and writs of right are as ropes of sand. but in the name of the law, i aver that no such power exists with any court or judge, state or federal, and if it is attempted to be exercised, there are modes of relief, full and ample, for the exigency of the occasion. i have not had either time or opportunity to examine all of the cases cited, but, as far as i have examined them, they decide this and nothing more--that where a court of competent jurisdiction convicts one of a contempt, another court, without appellate power, will not reëxamine the case to determine whether a contempt was really committed or not. the history of punishments for contempts of courts, and the legislative action thereon, both in our state and union, in an unmistakable manner teaches, first, the liability of this power to be abused; and second, the promptness with which its unguarded use has been followed by legislative restrictions. it is no longer an undefined, unlimited power of a star chamber character, to be used for the oppression of the citizen at the mere caprice of the judge or court, but it has its boundaries so distinctly defined that there is no mistaking the extent to which our tribunals of law may go in punishment for this offence. in the words of the act of congress of d march, , "the power of the several courts of the united states to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, jurors, witness, or any other person or persons, to any _lawful_ writ, process, order, rule, decree or command of said courts." now, passmore williamson was convicted of a contempt for disobeying a writ of _habeas corpus_, commanding him to produce before the district court certain persons claimed by mr. wheeler as slaves. was it a lawful writ? clearly not, if the court had no jurisdiction to issue it; and that it had not i think is very plain. if it was unlawful, the person to whom it was directed was not bound to obey it; and, in the very words of the statute, the power to punish for contempt "shall not be construed to extend to it." but, says the opinion of the majority, he was convicted of a contempt of court, and we will not look into the record to see how the contempt was committed. i answer this by asserting that you cannot see the conviction without seeing the cause: , the petition; , the writ and the alias writ of _habeas corpus_; , the return; and , the judgment. "it is ordered and adjudged by the court that the said passmore williamson be committed to the custody of the marshal without bail or mainprize, as for a contempt in refusing to make return to the writ of _habeas corpus_ heretofore issued against him at the instance of mr. john h. wheeler." as i understand the opinion of a majority of my brethren, as soon as we get to the word contempt the book must be closed, and it becomes instantly sealed as to the residue of the record. to sustain this commitment we must, it seems, first presume, in the very teeth of the admitted fact, that these were runaway slaves; and second, we must be careful to read only portions of the record, lest we should find that the prisoner was committed for refusing to obey an unlawful writ. i cannot forbear the expression of the opinion that the rule laid down in this case by the majority is fraught with great danger to the most cherished rights of the citizens of the state. while in contests involving the right of property merely, i presume we may still treat these judgments of the united states courts, in cases not within their jurisdiction, as nullities; yet, if a single judge thinks proper to determine that one of our citizens has been guilty of contempt, even if such determination had its foundation in a case upon which the judge had no power to pronounce judgment, and was most manifestly in direct violation of a solemn act of the very legislative authority that created the court over which the judge presides, it seems that such determination is to have all the force and effect of a judgment pronounced by a court of competent jurisdiction, acting within the admitted sphere of its constitutional powers. nay, more. we confess ourselves powerless to protect our citizens from the aggressions of a court, as foreign from our state government in matters not committed to its jurisdiction as the court of queen's bench in england, and this upon the authority of decisions pronounced in cases not at all analogous to the one now under consideration. i believe this to be the first recorded case where the supreme court of a state has refused the prayer of a citizen for the writ of _habeas corpus_ to inquire into the legality of an imprisonment by a judge of a federal court for contempt, in refusing obedience to a writ void for want of jurisdiction. i will conclude by recapitulating the grounds upon which i think this writ should be awarded. . at common law, and by our statute of , the writ of _habeas corpus ad sufficiendum_, is a writ of right, demandable whenever a petition in due form asserts what, if true, would entitle the party to relief. . that an allegation in a petition that the petitioner is restrained of his liberty by an order of a judge or court without jurisdiction, shows such probable cause as to leave it no longer discretionary with the court or judge to whom application is made whether the writ shall or shall not issue. . that where a person is imprisoned by an order of a judge of the district court of the united states for refusing to answer a writ of _habeas corpus_, he is entitled to be discharged from such imprisonment if the judge of the district court had no authority to issue the writ. . that the power to issue writs of _habeas corpus_ by the judges of the federal courts is a mere auxiliary power, and that no such writ can be issued by such judges where the cause of complaint to be remedied by it is beyond their jurisdiction. . that the courts of the federal government are courts of limited jurisdiction, derived from the constitution of the united states and the acts of congress under the constitution, and that when the jurisdiction is not given by the constitution or by congress in pursuance of the constitution, it does not exist. . that when it does not appear by the record that the court had jurisdiction in a proceeding under our _habeas corpus_ act to relieve from an illegal imprisonment, want of jurisdiction may be established by parole. . that where the inquiry as to the jurisdiction of a court arises upon a rule for a _habeas corpus_, all the facts set forth in the petition tending to show want of jurisdiction are to be considered as true, unless they contradict the record. . that where the owner of a slave voluntarily brings his slave from a slave to a free state, without any intention of remaining therein, the right of the slave to his freedom depends upon the law of the state into which he is thus brought. . that if a slave so brought into a free state escapes from the custody of his master while in said state, the right of the master to reclaim him is not a question arising under the constitution of the united states or the laws thereof; a judge of the united states cannot issue a writ of _habeas corpus_ directed to one who it is alleged withholds the possession of the slave from the master, commanding him to produce the body of the slave before said judge. . that the district court of the united states for the eastern district of pennsylvania has no jurisdiction because a controversy is between citizens of different states, and that a proceeding by _habeas corpus_ is, in no legal sense, a controversy between private parties. . that the power of the several courts of the united states to inflict summary punishment for contempt of court in disobeying a writ of the court, is expressly confined to cases of disobedience to "lawful" writs. . that where it appears from the record that the conviction was for disobeying a writ of _habeas corpus_, which writ the court have no jurisdiction to issue, the conviction is _coram non judice_, and void. for these reasons i do most respectfully, but most earnestly, dissent from the judgment of the majority of my brethren refusing the writ applied for. no. v. _how passmore williamson was finally discharged._ previously to the application on williamson's behalf to the supreme court of pennsylvania, jane johnson, the woman who, and her two sons, were claimed as slaves by wheeler, had appeared before judge culver of new york, and had made an affidavit that the plan of claiming her freedom and that of her children had originated entirely with herself; that it was through her means that williamson was made acquainted with her desire in that behalf; and that all he had done, after coming on board the boat, was to assure her and her claimant that she and her children were free, to advise her to leave the boat, and to interfere to prevent wheeler from detaining her. the same facts she had afterwards testified to in open court in philadelphia, on the trial for assault and riot of the colored men who had assisted her to escape. after the failure of the application to the supreme court of pennsylvania, certain persons, indignant at this refusal of justice and at the continuation of williamson's false imprisonment, but acting wholly independently of him, induced jane johnson to present a petition to judge kane, setting forth all the above facts, and praying that as the writ of _habeas corpus_ obtained by wheeler under pretence of delivering her from imprisonment and detention had been obtained without her privity or consent, and on false pretences, the writ and all the proceedings under it might be quashed. after argument upon the question of allowing this petition to be filed, judge kane delivered a long and very elaborate opinion, embracing three principal topics. he began with a very elaborate eulogy upon the writ of _habeas corpus_, coming with a very singular grace from a judge who had prostituted that writ to so vile a use, viz.: an attempted kidnapping and the false imprisonment for a pretended contempt of the man who had encouraged and assisted jane johnson to vindicate her rights under the laws of pennsylvania. next followed judge kane's version of his proceedings in committing williamson, and an attempt to vindicate himself therein; and to which succeeded a very labored effort at enforcing his favorite doctrine, on which his whole proceeding had been based, that slaveholders have a right to transport their slaves through pennsylvania. he refused to receive the petition of jane johnson, or to pay any attention to its suggestions, on the following grounds: "the very name of the person who authenticates the paper is a stranger to any proceeding that is or has been before me. she asks no judicial action for herself, and does not profess to have any right to solicit action on behalf of another. on the contrary, her counsel have told me expressly that mr. williamson has not sanctioned her application. she has therefore no _status_ whatever in this court." after the delivery of this opinion a little episode followed, evidently got up with a view to relieve judge kane from a part of the odium under which he was laboring, of which episode the following account was given in the newspaper reports of the proceeding:-- "on the conclusion of the delivery of this opinion, john cadwallader, (a member of the bar, but not engaged in this case,) in order to remove a false impression from the public mind, said, from his recollection of the circumstances attending the commitment of passmore williamson, a proposition was made to amend the return to the writ, when judge kane replied:--'i will not receive an amendment now, but will be prepared to receive it when the record has been completed.' "no such motion was subsequently made, and the public impression that permission to amend was refused, was not warranted by facts. "judge kane replied that his (mr. cadwallader's) impression was correct. he had been prepared to receive a supplementary return from mr. williamson's counsel, but none had been offered. "mr. cadwallader suggested that an addition be made to the opinion of the court, embracing the remarks of a member of the bar not engaged in the case, and the reply of the judge. he was induced to make the suggestion by the best feeling towards a worthy but mistaken man, hoping it might lead to the adoption of such a course as would end in his liberation. "mr. cadwallader is to embody the remarks he made, when the judge will follow with his answer, so as to complete the record."[ ] some days after, (oct. ,) messrs. gilpin and meredith, of counsel for williamson, appeared in judge kane's court, and asked leave to read a petition from williamson. this petition contained a statement of the facts in relation to his connection with the liberation of jane johnson and her children, similar to that contained in his petition to the supreme court of pennsylvania, appendix. no. i. the following account of the proceedings on this motion is taken from the _philadelphia gazette_:-- judge kane said, 'the court cannot hear an application from a party in contempt, except to absolve him. i understand there is an application, by petition, in the name of passmore williamson, which is not to relieve himself from the contempt, but--' mr. meredith then remarked something in an inaudible tone, and judge kane said: 'let us not be misunderstood--i am not prepared to receive an application from passmore williamson, who is incarcerated for contempt of this court, unless such petition be to relieve himself from contempt by purgation. i am of opinion, unless otherwise instructed, that that is an independent preliminary to any other application from him. 'if, therefore, the counsel arise to present an application from mr. williamson, it must be for purgation. the counsel do not inform the court whether they are here to purge mr. williamson from the contempt. as at present advised, i have no power to hear their application, whatever it may be, in his behalf.' mr. meredith said there were two kinds of contempts; one of personal insult to the bench, with which passmore williamson is not concerned; but the contempt consisting in not making a proper return to the process of the court. mr. meredith then proceeded to argue that such a contempt could be purged by making an answer to the court and paying the costs, which he was now prepared to do. judge kane said, that up to this moment there has been, on the part of the individual to whom the function of the court has been delegated and exercised in this matter, not a single particle of conscious excitement. he did not believe it was in the power of the entire press of the united states, after he had honestly administered his duty to the best of his ability, to give him a pang, or produce one excited feeling; therefore, now as heretofore, he looked upon the question as one that has no feeling on the bench. if he understood the remarks of mr. meredith, he meant to say to the court that passmore williamson was desirous of testifying now his willingness to obey the exigencies of the writ of _habeas corpus_. if so, he had a simple, straightforward, honorable course to pursue. he has no need of making a narrative of facts or arguments of protest; let him come forward into court, declaring that he is willing to obey the writ issued by this court; and when he has done that, in the estimation of the judge, he is purged of his contempt. nothing on his part of personal offence was evinced to the court; his demeanor was entirely respectful; but he failed to obey the writ which the law issued to him; and when he has obeyed that writ, it will be the duty of this court to free him. what is understood by 'purgation' is not simply a mere form of words. it matters not about that, provided he received, from the party who is in contempt for having disobeyed the process of the court, the assurance that he is now prepared to obey such process, and, until he is prepared to announce his disposition to obey, he could not hear him upon any other subject which asserts that the court has erred either in point of fact or law, or has exercised a jurisdiction which does not belong to it. he said he would hear the counsel upon the question whether the court can legally hear any other petition than the one of purgation. the respondent's counsel then proceeded to argue the right of the court to hear a petition, other than of purgation, from passmore williamson. mr. meredith said he had found nothing in the authorities, either english or american, where persons were held guilty of a contempt in responding to a writ of _habeas corpus_ unless the return was evasive. he referred to a case in mason, where, in a return to a writ before judge story, there was clearly an evasion shown on the face of the return. under these circumstances, judge story declared that the course of practice was to propound interrogatories and compel the respondent to disclose more fully. mr. m. submitted whether it was not proper to subject the petitioner in this case to a further questioning. he could not find in english or american books any other course. mr. m. supposed that the respondent was committed until he should answer interrogatories. why had they not been propounded in the form that the court might think proper to put them? no case could be shown in which a defendant was to be committed for contempt, until he presented a prayer to have interrogatories propounded to him. how is he to answer what has not been filed? according to the books, the defendant may come into court at any time, and take advantage of an omission to file interrogatories within four days. if another view should be taken by the court, he would then ask that an order be made to show the defendant what he was to do to rid himself of the contempt. judge kane said that the defendant could make a declaration, that he was now ready to answer interrogatories. mr. meredith asked that the court make an order submitting certain interrogatories, such as it would deem sufficient, to the prisoner, the proper answers to which would be enough to purge him of the contempt. the court then said, 'in some of the cases mentioned we know that the party adjudged to be in contempt submitted himself to interrogatories, either by writing or _per se_. i see no difficulty in the way of the court's giving this decision in the form of an order. 'the suggestion of the counsel now has frequently been intimated by the court. the prisoner might at any time, under a proper application, have been before the court. if there was a misunderstanding of the position of the case by the counsel for mr. williamson, it is a matter of sincere regret to me.' mr. meredith said he could not find any case of petition that interrogatories should be filed, in any of the english books. _judge kane._--the gentleman, mr. williamson, is now recusant, and i often think that forms _sometimes_ have meaning and i cannot interfere otherwise than to say as i have said above. _mr. meredith._--i can enlarge the remark and say that forms _always_ have meaning. he argued that the purging interrogatories must be filed. if not filed, the party was entitled to his discharge. he argued from the 'chancery practice' of smith, that the defendant ought only to be imprisoned until he shall have properly answered the interrogatories put to him. mr. van dyke, the district attorney, then said that the question now was whether a person, in contempt, had any standing in court whatever. so far as mr. williamson is concerned, he has no standing. the argument of the gentlemen on the other side must be taken as arguing against the adjudication of this court. how far can a man in contempt come into court and purge that contempt? how did the counsel get over the fact, that his client was in contempt? he must first submit himself to the court by asking to be permitted to purge himself of contempt. mr. meredith closed the argument, and the proceeding was closed by an entry on the part of judge kane of the following order on the record. _the united states_ v. _williamson_. and now, october the th, , the court having heard argument upon the motion for leave to read and file among the records, in this case, a certain paper writing purporting to be the petition of passmore williamson, and having considered thereof, do refuse the leave moved for, inasmuch as it appears that the said passmore williamson is now remaining in contempt of this court, and that by the said paper writing he doth in no wise make purgation of his said contempt, nor doth he thereby pray that he may be permitted to make such purgation; wherefore the said passmore williamson hath not at this time a standing in this court. to the end, however, that the said passmore williamson may, when thereunto minded, the more readily relieve himself of his said contempt, it is ordered that whenever by petition, in writing, to be filed with the clerk, passmore williamson shall set forth, under his oath or solemn affirmation that 'he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogations as may be addressed to him by the court, touching the matters heretofore _legally_ enquired of by the writ of _habeas corpus_ to him directed, at the relation of john h. wheeler,' then the marshal do bring the said passmore williamson before the court, if in session, or if the court be not in session, then before the judge at his chambers, to abide the further order of the court in his behalf. and it is further ordered that the clerk do furnish copies of this order to the said passmore williamson, and to the attorney of the united states, and to the marshal. under this order williamson presented the following petition: _united states of america_ v. _williamson, district court of the united states, eastern district of pennsylvania_. _to the honorable the judge of the district court of the united states for the eastern district of pennsylvania:_ the petition of passmore williamson respectfully showeth: that he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogatories as may be addressed to him by the court, touching the matter heretofore inquired of him by the writ of _habeas corpus_ to him directed at the relation of john h. wheeler. wherefore he prays that he may be permitted to purge himself of said contempt by making true answers to such interrogatories as may be addressed to him by the honorable court touching the premises. p. williamson. affirmed and subscribed before me, nov. , . charles f. heazlitt, u. s. com. judge kane hesitated to receive this petition because it did not conform to his order by containing the word _legally_, before the phrase "inquired of," (thus confirming the legality of the proceedings under the original writ of _habeas corpus_ directed to williamson.) but finding that williamson was resolved to make no such concession, judge kane finally concluded to receive the petition, and made the following reply to it: 'passmore williamson: the court has received your petition, and, upon consideration thereof, have thought right to grant the prayer thereof. you will therefore make here in open court your solemn affirmation, that in the return heretofore made by you to the writ of _habeas corpus_, which issued from this court at the relation of john h. wheeler, and in the proceedings consequent thereupon, you have not intended a contempt of this court or of its process. moreover, that you are now willing to make true answers to such interrogatories as may be addressed to you by the court, touching the premises inquired of in the said writ of _habeas corpus_.' the required affirmation was then made in the form dictated by the judge. mr. van dyke, the district attorney, then submitted an interrogatory in writing, which was not read aloud at that time. mr. gilpin said mr. williamson was perfectly willing to answer the interrogatory submitted by the district attorney, but as he did not know what other interrogatories might follow this, he thought it best that it and its answer should be filed. mr. van dyke said he was willing either to file the interrogatory or to submit it for an immediate reply. mr. gilpin and judge kane both remarked that they had understood the district attorney to intimate, that if the question propounded was answered in the affirmative, he would be satisfied. the court further said, that it was for the petitioner to make his election whether or not the interrogatories and the replies should be filed. after consultation with his counsel, the petitioner preferred that the questions and answers should be filed. the court directed that the interrogatories should be filed. mr. gilpin then read the interrogatory that had been propounded, and the reply of mr. williamson. the interrogatory was as follows: 'did you at the time of the service of the writ of _habeas corpus_, at the relation of john h. wheeler, or at any time during the period intervening between the service of said writ and the making of your return thereto, seek to obey the mandate of said writ, by bringing before this honorable court the persons of the slaves therein mentioned? if to this interrogatory you answer in the affirmative, state fully and particularly the mode in which you sought so to obey said writ, and all that you did tending to that end.' the reply made was as follows: 'i did not seek to obey the writ by producing the persons therein mentioned before the court, because i had not, at the time of the service of the writ, the power over, the custody or control of them, and, therefore, it was impossible for me to do so. i first heard of the writ of _habeas corpus_ on friday, july , between one and two o'clock a. m., on my return from harrisburg. after breakfast, about nine o'clock, i went from my house to mr. hopper's office, when and where the return was prepared. at ten o'clock i came into court, as commanded by the writ. i sought to obey the writ by answering it truly; the parties not being in my possession or control, it was impossible for me to obey the writ by producing them. since the service of the writ i have not had the custody, possession or power over them; nor have i known where they were, except from common rumor, or the newspaper reports in regard to their public appearance in the city or elsewhere.' some discussion arose between the district attorney and the counsel of mr. williamson. mr. van dyke contended that the reply of the defendant was evasive and contradictory. the judge said the difficulty, he thought, could be easily overcome by amending the answer, and at the suggestion of the court it was amended in the following manner: 'i did not seek to obey the writ by producing the persons in the writ mentioned before this court. i did not seek, because i verily believed that it was entirely impossible for me to produce the said persons, agreeably to the command of the court.' this answer was then accepted by the court and ordered filed. mr. van dyke then submitted another interrogatory, the substance of which was, whether or not mr. williamson had been guilty of mental reservations in his reply to the first interrogatory? the court overruled this interrogatory as superfluous and improper. mr. van dyke withdrew this interrogatory and offered another, which was also overruled by the court, on the ground that it led to such replies as had already been objected to by the district attorney. mr. van dyke also withdrew this question. judge kane then remarked that the district attorney had been invited to aid the court in this case, but that he would bear in mind that his relation to mr. wheeler was now suspended. this was only an inquiry as to what injury had been done the process of the court. mr. van dyke said he was aware of the position he occupied. judge kane then said: 'the contempt is now regarded as purged and the party is released from custody. he is now reinstated in the position he occupied before the contempt was committed. mr. williamson is now before me on the return to the writ.' mr. van dyke then arose and addressed the court. after mr. van dyke had concluded, mr. meredith inquired: 'is mr. williamson discharged?' judge kane replied, 'he is. i understand from the remarks of the district attorney, that a _nolle prosequi_ has been entered in the case in this court.' the court then adjourned. mr. williamson was congratulated by his friends on his restoration to liberty.[ ] footnotes: [ ] the german _graf_, for which the latin _comes_ (in english, _count_ or _earl_) was employed as an equivalent, is a form of the same word. the law latin for sheriff is _vice-comes_, a name given, it would appear, after the title of earl or count had become hereditary, to the officer who still continued to be elected by the people for the official functions originally discharged by the earl. [ ] see forsyth's _history of trial by jury_, ch. iv. sec. . [ ] history of england, appendix, i. [ ] the decision of this majority would seem to have been principally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superstitious appeal to the ordeal. [ ] history of england, appendix, ii. [ ] we may observe that even at present, whether in england or america, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities. [ ] in the king's absence--and the anglo-norman kings were often absent on visits to their continental dominions--this chief justiciary acted in all respects as the king's substitute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. such was the case with ranulphus de granville, chief justiciary of henry ii., a. d. - , whose treatise in latin, _on the laws and customs of the kingdom of england_, is the oldest book of the common law. he went with richard i. on the third crusade, and was killed at the siege of acre. [ ] it might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were substituted for the exercise of the reasoning faculties. [ ] not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king's courts, by the writ of _pone_ and others. [ ] originally, and down to a comparatively recent period, the inns of court were real schools, "readers" or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. now, the examination is a mere form, and the student seeks instruction where he pleases. even the nominal term of study has been reduced to five, and in some cases to three years. [ ] this distinction between attorneys and barristers, though still in full vogue in england and in several of the british colonies, is not recognized in the united states, where, indeed, it never had but a feeble and transient existence. [ ] down to the period of the reformation the abbots of the greater monasteries sat also in this house. [ ] if the lords, says campbell, were still liable to be so interrogated, they would not unfrequently be puzzled; and the revival of the practice might be a check on hasty legislation. it certainly would be a check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those who frame them. [ ] hence the necessity of venue, that is, the allegation in all declarations and indictments of some place in some county where the matter complained of happened, in order to a trial by a jury of the vicinage. in personal actions this necessity of trying a case in the county where the transaction occurred was got rid of by first setting out the true place of the transaction, and then alleging under a _videlicet_ a venue in the county where the action was brought, which latter allegation the courts would not allow to be disputed. but in criminal proceedings and real actions the necessity of a trial in the county where the offence was committed or the land lies still continues. the origin of the jury in a body of neighbors who decided from their own knowledge will seem less remarkable when we recollect that by the customs of the anglo-saxons all sales of land, contracts, &c., between individuals took place in public at the hundred and county courts, the memory of the freeholders present thus serving in place of written records. see palgrave's _english commonwealth_, vol. i. p. . [ ] see forsyth's _trial by jury_, ch. x. sec. . [ ] down to the time of elizabeth _all_ cases occurring in middlesex county, in which westminster lies, were thus tried in bank. [ ] in london and middlesex four sessions were held a year; in the four northern counties only one. [ ] this history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the district courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be retarded in their action, if not reduced to imbecility by divisions among their members. [ ] the appeal from the english colonial courts to the king in council--the appeal cases being heard and decided by a committee of the privy councillors learned in the law--is another remnant of the old system, in which the constitution of the ancient aula regis has been very accurately preserved. [ ] both these courts proceeded according to the forms of the civil law, and without a jury. but occasionally the court of equity directed questions of fact arising before it to be settled by jury trial, and by a statute of henry viii. the trial of all maritime felonies before the admiralty court was directed to be by jury. [ ] hyde, (afterwards lord clarendon,) himself a lawyer, by whom the usurpations of this court were brought to the notice of parliament, stated that more damages had been given by the earl marshal in his days, for words of supposed defamation, of which the law took no notice, than by all the courts of westminster hall during a whole term. [ ] the name is sometimes spelt brabaçon, brabançon, brabason, and brabanson. [ ] hume, who designates them "desperate ruffians," says "troops of them were sometimes enlisted in the service of one prince or baron, sometimes in that of another; they often acted in an independent manner, and under leaders of their own. the greatest monarchs were not ashamed, on occasion, to have recourse to their assistance; and as their habits of war and depredation had given them experience, hardiness, and courage, they generally composed the most formidable part of those armies which decided the political quarrels of princes."--vol. i. . in america we have no mercenary soldiers, but plenty of mercenary politicians, almost as much to be dreaded.--_ed._ [ ] they were removed because, during the king's absence on the continent, they had been guilty of taking bribes, and other misdemeanors. of de wayland, one of their number, and the first chief justice of the common pleas, lord campbell gives the following account: when arrested, on the king's return from aquitaine, conscious of his guilt, he contrived to escape from custody, and, disguising himself in the habit of a monk, he was admitted among friars-minors in a convent at bury st. edmund's. however, being considered a heinous offender, sharp pursuit was made after him, and he was discovered wearing a cowl and a serge jerkin. according to the law of sanctuary, then prevailing, he was allowed to remain forty days unmolested. at the end of that time the convent was surrounded by a military force, and the entry of provisions into it was prohibited. still it would have been deemed sacrilegious to take him from his asylum by violence; but the lord chief justice preferred surrendering himself to perishing from want. he was immediately conducted to the tower of london. rather than stand a trial, he petitioned for leave to abjure the realm; this favor was granted to him on condition that he should be attainted, and forfeit all his lands and chattels to the crown. having walked barefoot and bareheaded, with a crucifix in his hand, to the sea side at dover, he was put on board a ship and departed to foreign parts. he is said to have died in exile, and he left a name often quoted as a reproach to the bench till he was superseded by jeffreys and scroggs. [ ] that is, in the ordinary discharge of his duties. his attempt to take away the liberties of the scotch we shall presently see.--_ed._ [ ] just like our northern candidates for the presidency, and the dough-face politicians who contrive to get chosen to congress by northern constituencies, whose rights they then barter away and betray.--_ed._ [ ] this is the very ground upon which it is attempted, now, to justify the repeal of the missouri prohibition of slavery, while brabacon's defence of english judges in scotland is a counterpart to the justification by our federal judges of the authority given to slave-catching commissioners.--_ed._ [ ] may the pending attempts of the southern states, countenanced and supported by the federal judges, to establish a "superiority" and "direct dominion" over the north, be met and repelled with similar spirit and success!--_ed._ [ ] he had been murdered by a body of insurgent peasants headed by jack straw, one of the leaders in wat tyler's insurrection.--_ed._ [ ] some of our federal judges would no doubt like very much to see this rule established among us.--_ed._ [ ] the persistence of richard ii. in the same arbitrary principles of which the advocacy cost tresilian his life, caused his deposition a few years afterwards, as to which, lord campbell observes,-- "while we honor lord somers and the patriots who took the most active part in the revolution of , by which a king was cashiered, hereditary right was disregarded, and a new dynasty was placed on the throne, we are apt to consider the kings of the house of lancaster as usurpers, and those who sided with them as rebels. yet there is great difficulty in justifying the deposition of james ii., and condemning the deposition of richard ii. the latter sovereign, during a reign of above twenty years, had proved himself utterly unfit to govern the nation, and, after repeated attempts to control him, and promises on his part to submit to constitutional advice, he was still under the influence of worthless favorites, and was guilty of continued acts of tyranny and oppression; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandfather, was now almost unanimously resolved to submit no longer to his rule." [ ] fuller, in praising fortescue and markham, says, "these i may call two chief justices of the chief justices, for their signal integrity; for though the one of them favored the house of lancaster, and the other of york, in the titles to the crown, both of them favored the house of justice in matters betwixt party and party." [ ] a list by no means limited to england, but very much lengthened out in america.--_ed._ [ ] some of our american advocates of constructive treasons have laid down the law much in the same spirit.--_ed._ [ ] it was, we may suppose, from this charge that mr. justice curtis, of the supreme court of the united states, got the law retailed in his charge to the grand jury of the massachusetts district, in consequence of which indictments were found against wendell phillips and theodore parker for obstructing the execution of the fugitive slave act--on the ground that certain speeches of theirs in faneuil hall against that statute "referred to a purpose" and "incited to an act" of resistance to it, thereby making their expression of opinion criminal.--_ed._ [ ] the recent claim set up in america for legislative supremacy over conscience--a claim contended for by so many of our leading lawyers and divines--is not less blasphemous and outrageous than this claim of henry viii., and belongs to the same category.--_ed._ [ ] this would hardly be allowed by some of our american juridical deniers and deriders of the "higher law." it is hard to distinguish a law (such as the fugitive slave act) which sets the moral sentiment at defiance, from a law that god shall not be god.--_ed._ [ ] one striking instance, among a thousand, both old and new, how little the so much vaunted decisions of courts virtually amount to. decisions that are to stand, can only stand upon their own inherent rectitude and reasonableness, and not upon the authority of those who make them.--_ed._ [ ] some of our american judges who have of late attained a very unenviable public character have also the reputation of being virtuous and amiable in private life.--_ed._ [ ] noy at this time was of the popular party. he afterwards went over to the court, and was made attorney general.--_ed._ [ ] similar pretences of respect for law and popular rights often serve as preface here in america to judgments as atrocious as that of chief justice hyde.--_ed._ [ ] this is the universal excuse for all sins, whether of omission or commission, on the part of courts who pay but little regard to bishop burnet's sensible observation that a precedent against reason "signifies no more but that the like injustice has been done before."--_ed._ [ ] though the lawyers, both in england and america, have long since abandoned the pretence, so impudently maintained by hyde, of a right in the executive authorities to imprison for contempt, into the ground and nature of which the courts had no right to inquire, they still claim for themselves and for one another--at least in pennsylvania--a like right, and insist with the same unction upon the absolute necessity of trusting "the courts" in these matters, and of relying upon their "mercy." see, in the appendix, no. , the opinion of the supreme court of pennsylvania, as delivered by judge black, of which the insolent conclusion was evidently borrowed from the above opinion of chief justice hyde.--_ed._ [ ] this celebrated lawyer, who had succeeded fleming as chief justice of the king's bench, had been, as well as crewe, turned out of office after holding the place for three years, because he would not allow the government to interfere with his administration of justice. he was now the leader of the popular party in the house of commons.--_ed._ [ ] we have had recent striking instances in america of the same thing in some of the "misconstructions" placed by judges on the laws in restraint of drunkenness and liquor selling.--_ed._ [ ] like those given by several federal judges in support of the fugitive slave act.--_ed._ [ ] noy had begun, like brampston, a flaming patriot, but, like him and so many other lawyers, had been bought over to the side of power by the hope of promotion, and being made attorney general, had advised the issue of the writs for ship money.--_ed._ [ ] cro. car. . these forms are no longer used. the chief justice is now sworn in privately before the chancellor; and without any speechifying he enters the court and takes his place on the bench with the other judges. but in scotland they still subject the new judge to trials of his sufficiency; while these are going on he is called lord probationer; and he might undoubtedly be plucked if the court should think fit. [ ] this is exactly the sort of judges from whom we in america have so much to fear.--_ed._ [ ] we have seen in america similar attempts to stop counsel from exposing the unsoundness of judicial opinions given in support of the fugitive slave act.--_ed._ [ ] this is the very doctrine lately revived, in a little different shape, by some of our american divines--that whatsoever the legislative power in its conscience thinks it may require, we ought to yield.--_ed._ [ ] some of our american federal judges are in the habit of declaiming much in the same style against abolitionists--who, indeed, may be considered as occupying a position in our present affairs in many respects parallel to that of the english puritans in the times of charles i.--_ed._ [ ] having once refused to hear counsel against ship money, he now undertook to square the account by refusing to hear counsel for it.--_ed._ [ ] see life of hyde, ante, p. . [ ] this supposed inability of the king to do wrong has in america among a certain class been transferred to the federal government, which represents the royal authority of the english.--_ed._ [ ] bl. com. . compulsory knighthood was abolished by the long parliament, car. i. c. . [ ] their decisions are still of as much authority on legal questions as those of courts sitting under a commission from the crown; and they were published with the sanction of the chancellor and all the judges in the reigns of charles ii. and james ii. [ ] it is doubtless a like mixture of motives that prompts just now the conduct of some of our american lawyers.--_ed._ [ ] charles ii., in his _declaration_ from breda, had promised that he should "proceed only against the immediate murderers of his royal father." [ ] in answer to the address of the two houses of the convention parliament to spare the lives of vane and lambert, the lord chancellor reported, "his majesty grants the desire of the said petition;"--the ancient form of passing acts of parliament. the ultra cavalier house of commons which followed desired vane's death, but could not alter the law or abrogate the royal promise. [ ] in his younger days, before the civil war, sir henry vane had been among the early emigrants to massachusetts, and as governor of that colony had borne a part in some remarkable transactions there.--see hildreth's _history of the united states_, vol. i. ch. ix. [ ] a fortress on the south shore of the english channel, taken by cromwell from the spaniards, and by charles ii. sold at this time to louis xiv. of france. [ ] so bacon, better at precept than at practice, in his advice to sir george villars, requires in judges these three attributes--they must be men of courage, fearing god, and hating covetousness: an ignorant man cannot, a _coward_ dare not be a good judge. on the american bench we have too many cowards.--_ed._ [ ] the following dialogue occurred after the verdict:-- _prisoner._--i most humbly beseech your lordship to remember my condition, (he had before stated himself to be the father of nine small children,) and intercede for me. _lord hyde._--i would not intercede for my own father in this case, if he were alive. [ ] this practice of putting questions to the prisoner intended to intimidate him, to involve him in contradictions, or to elicit from him some indiscreet admission, had ceased during the commonwealth, but was revived by the new royal judges. [ ] this was the same doctrine afterwards attempted to be maintained by lord mansfield, but overruled by a declaratory act of parliament. [ ] an american specimen of this style of judicial decision may be found in judge grier's way of speaking on the bench about abolitionists.--_ed._ [ ] state trials, - . [ ] hale, p. c. . [ ] the above passage enclosed in brackets has been added by the editor. our american judges, more subtle than their predecessors, instead of fining juries for not rendering verdicts according to directions, have introduced the practice of questioning jurors beforehand, and not allowing them to sit unless they pass a satisfactory examination.--_ed._ [ ] this was an expensive residence built by clarendon, to which the populace gave that name, under the unfounded idea that the expense of it was defrayed out of bribes received for consenting to the sale of dunkirk.--_ed._ [ ] this has been from great antiquity the decoration of the english chief justices. dugdale says it is derived from the name of st. simplicius, a christian judge, who suffered martyrdom under the emperor diocletian.--_ed._ [ ] among these was, "whether the act of severing the head of charles i. from his body could be alleged to have been committed in his own lifetime," and "whether it should be laid as against the peace of the late or of the present king." judge mallet made the confusion more confounded by maintaining that by the law of england a day is indivisible; and that, as charles ii. certainly was our lawful king during a part of that day, no part of it had been in the reign of charles i. [ ] this case, thus characterized by lord campbell, served as foundation for the remarkable attempt recently made among us to convert opposition to the fugitive slave act into high treason. this bloody idea was first started by george t. curtis, a slave-catching commissioner of massachusetts, in his telegraphic despatch to mr. webster, giving an account of the rescue at boston, by a number of colored men, from the hands of the u. s. marshal, of a man named shadrach, who had been seized on one of commissioner curtis's warrants as a fugitive slave. not long after, in september, , a maryland slaveholder named gorsuch obtained from the notorious edward d. ingraham, the philadelphia slave-catching commissioner, warrants against four alleged fugitive slaves. he proceeded with an armed party and a deputy marshal to christiana, and besieged a house in which the slaves were said to have taken refuge. intelligence had been received of the approach of the party, and the slaves manfully resolved to defend themselves, and, if possible, to achieve their freedom. some of their colored friends gallantly came to their aid and generously shared their danger. gorsuch, the slave-hunter, and the marshal entered the house, but were repulsed, each party firing at the other, but, as appears, without effect. the besiegers called for assistance, and meeting caspar hanway, a white man, on horseback, the marshal, as authorized by the fugitive law, commanded his aid in arresting the slaves. mr. hanway, as became a republican and a christian, refused obedience to the infamous mandate. in the mean time the negroes made, it would seem, a sortie, advancing on the enemy. hanway called to them _not to fire_. his exhortation was unheeded. gorsuch was shot dead, another was wounded, and the residue of the slave-catchers sought safety in flight. at the next meeting of the united states district court for the eastern district of pennsylvania, this case was brought to the notice of the grand jury by judge kane. after reciting the facts as they appeared in the newspapers, he added, that it was reported "that for some months back, gatherings of people, strangers as well as citizens, have been held from time to time in the vicinity of the place of the recent outrage, at which exhortations are made and pledges interchanged to hold the law for the recovery of fugitive slaves as of no validity, and to defy its execution." in other words, anti-slavery meetings had been held in lancaster county, as in other parts of the free states, and in these meetings one of the most detestable acts of modern legislation had been denounced as cruel and unjust, and the people in attendance had expressed their determination not to participate in slave hunts. "if," said the judge; "the circumstances to which i have adverted [viz: the riot at christiana and the anti-slavery meetings] have in fact taken place, they involve the highest crime known to the law." and what crime is that? treason. and what is treason? the judge answers, "levying war against the united states." and what had the affair at christiana to do with war against the united states? again the judge replies, "any combination forcibly to prevent or oppose the execution or enforcement of a provision of the constitution or of a public statute, if accompanied by an act of forcible opposition in pursuance of such combination," is embraced in the expression "levying war against the united states," as used in the constitutional definition of treason. hence, four negroes combining to maintain their newly-recovered liberty by forcibly resisting the efforts of a slave-catcher, are guilty of levying war against the united states. but the judge's patriotic zeal against traitors did not confine itself to the enemies of the united states actively engaged in the christiana campaign. here, indeed, he went far beyond even the infamous judge kelynge. "it is not necessary," so he told the grand jury, "to prove that the individual accused was a direct personal actor in the violence, nor is even his personal presence indispensable. though he be absent at the actual perpetration, yet if he directed the act, devised, or knowingly furnished the means for carrying it into effect, or instigated others to perform it, he shared their guilt. in treason, there are no accessories." from all this the grand jury were to understand that anti-slavery men, by their doctrines of human rights and their denunciations of the fugitive act, instigated fugitive slaves to defend themselves; hence, as, in treason, all are principals, however remotely and indirectly concerned, these abolition instigators had also levied war, were traitors, and might be legally hung. to strengthen this intended impression on the minds of the jury, the judge launched out into an invective against the abolitionists, concluding with the very significant and smart admonition, "while he (the abolitionist) remains within our borders he is to remember that successfully to instigate treason is to commit it." what is still more astonishing than even this charge, the grand jury, to whom it was delivered, showed themselves such ready receivers of its infamous and atrocious doctrines as to bring into court thirty bills for high treason, against as many different individuals, founded upon it. of these thirty indictments, the only one brought to trial was that against caspar hanway, above mentioned. the only acts proved against this man, in support of the charge of having "traitorously levied war against the united states," were, . having declined to assist the marshal in arresting the fugitives; and . in calling to the negroes and urging them _not_ to fire. judge grier presided on the trial, and notwithstanding his vulgar invectives against the abolitionists, found himself compelled to charge the jury, even in the presence of judge kane, that "a number of fugitive slaves may infest a neighborhood, and may be encouraged by their neighbors in combining to resist with force and arms their master, or the public officer who may come to arrest them; they may murder or rob them; they are guilty of felony and liable to punishment, but not as traitors." the prisoner was of course acquitted, and all the other indictments abandoned; and thus ended in shame and ridicule judge kane's ingenious device for hanging all who resisted the fugitive slave law. yet this same man, at a kossuth meeting at philadelphia, made a rampant filibustering speech in behalf of oppressed nations, quoting with exultation the words of vattel, "when a people from good reasons take up arms against an oppressor, justice and generosity require that brave men should be assisted in the defence of their liberties."--_ed._ [ ] see ante, pp. , . [ ] and yet it is upon the authority of these worthless reports that some important american decisions have been based. see _mass. reports_, , commonwealth v. bowen; also the preceding note.--_ed._ [ ] for an account of chiffinch, see the life of jeffrey, p. . [ ] our recent american history presents a curious parallel to the english popish plot delusion and the use made of it by the unscrupulous politicians of that age. the basis of that delusion was the well-founded horror which the english people entertained for the popish religion as hostile to their liberties. the immediate allegation upon which it rested was, that the papists had formed a conspiracy to assassinate charles ii., and so to open the way to the throne for the duke of york, (afterwards james ii.,) a professed papist. the suggestion of this plot, founded merely on vague suspicions,--(if indeed it was not, as some writers think, purposely started for political objects,)--was taken hold of by the unprincipled shaftesbury, who from having been an ultra courtier, had become the leader of the country party. he sought to use it to stimulate the people against the court, and to prepare the way for his project of excluding the duke of york from succession to the throne. he expected that the court would oppose this delusion, and so would make itself still more unpopular. but charles ii., no less unprincipled than shaftesbury, was quite as ready as he to play at any dangerous game; and that he might gain credit for protestantism, (though all the while secretly a papist,) he resolved to humor the delusion to the utmost, and to allow it full play against its unfortunate victims. so here in america, the democrats, (so called, but in fact slavery extenders,) taking advantage of the very strong and well-founded popular sentiment in favor of the union, and seeking to recommend themselves to favor as a national party, hit upon the similar expedient of accusing the abolitionists of a plot to dissolve the union, part of the odium of which they hoped to throw upon their political opponents, the so-called whigs, by accusing them as screeners and favorers of the abolitionists. the whigs, however, in imitation of the policy of charles ii., and under the leadership of the late daniel webster, sought to turn this pretended plot to their own advantage, by coming out still more furious union-savers than even the democrats, and denouncing the abolitionists with still greater fury--thus working up the public mind into a terror at the imaginary danger of the union, much like that of the english people at the time of the popish plot. we, too, have had our trials for treason, (see ante, p. - ;) and if we have had no bloody executions, it has not been for want of scroggses, both on and off the bench.--_ed._ [ ] for this he probably received a good sum of money. [ ] "by his zeal in the protestant cause he gained for a while a universal applause throughout the whole nation."--_athenæ_, iv. . [ ] this profession of contempt for "vulgar noise" has lately been repeated in america by a judge whose manner and bearing on the bench come as near those of scroggs as the present times will bear.--_ed._ [ ] from this asseveration a suspicion arises of pecuniary corruption; but i believe that scroggs was swayed in this instance by a disinterested love of rascality. [ ] roger north, whose curious life of his brother is largely quoted in this memoir.--_ed._ [ ] at that time not more than fifty volumes were required. now, unfortunately, a law library is "_multorum camelorum onus_," (a load for many camels.) [ ] this sort of practice on the weakness of judges, keeping them in good humor by flattery and complaisance, may possibly, as the text implies, be abandoned in england, but in america it is still sufficiently common.--_ed._ [ ] the distinguishing badge worn by the king's counsel. the barristers wear stuff gowns. the serjeants, (the highest rank of practitioners,) enjoying a monopoly of the practice of the court of common pleas, which originally had exclusive cognizance of all civil actions, have or had, as their badges, a coif, or black velvet cap, (for which a wig was about this time substituted,) and parti-colored robes.--_ed._ [ ] the hours then kept must have been very inconvenient for lawyers in parliament, as all the courts and both houses met at eight in the morning and sat till noon. [ ] this early rising rendered it necessary for him to take "a short turn in the other world after dinner." [ ] roger assures us he did not purloin any part of the treasure, for which he takes infinite credit to himself. [ ] this was the title taken by finch on promotion to the great seal. nottingham is greatly lauded by blackstone and other writers on jurisprudence as a "consummate lawyer," and as the father of the modern english equity system. his abilities were unquestionable, but his political career, like that of so many other "consummate lawyers," has some very black spots.--_ed._ [ ] here we have one of many english precedents of assault upon the right of petition--a thing by no means unknown in our american politics.--_ed._ [ ] the same parliament had already impeached scroggs. see ante, p. . [ ] here again is the old pretence of "levying war," under which it has been attempted with us to convert hostility to the fugitive slave act into treason. see ante, p. .--_ed._ [ ] pemberton, though well aware that, to justify the grand jury in finding an indictment, a _prima facie_ case of guilt must be made out, instructed them that "a probable ground of accusation" was sufficient.--_ed._ [ ] by this word "pension," i conceive we are to understand _salary_ while the lord keeper was in office, and not, as might be supposed, an allowance on his retirement. [ ] pemberton had been appointed to succeed scroggs as chief justice of the king's bench, but not being found quite serviceable enough, was now removed into another court.--_ed._ [ ] "sir f. north being made lord keeper on the death of the earl of nottingham, the lord chancellor, i went to congratulate him. he is a most knowing, learned, and ingenious person; and, besides having an excellent person, of an ingenuous and sweet disposition, very skilful in music, painting, the new philosophy, and political studies."--_mem._ i. . judge kane is said to be quite an accomplished person.--_ed._ [ ] the principal obstacle to law reform in america is the pecuniary interest which the lawyers think they have in keeping up old abuses.--_ed._ [ ] bishop burnet, the historian. [ ] see beyond, life of jeffreys, p. . [ ] an account of guilford's unavailing attempt to prevent this appointment will be found in the life of wright, chap. xix.--_ed._ [ ] it is curious that roger gravely states that "he was dropped from the tory list and turned trimmer."--_life_, i. . [ ] life, ii. . it should be recollected that, at this time, the council met in the afternoon, between two and three--dinner having taken place soon after twelve, and a little elevation from wine was not more discreditable at that hour than in our time between eleven and twelve o'clock at night. [ ] james and jeffreys setting themselves up as the special advocates of toleration, (with a view to the introduction of popery,) is like our american slaveholders putting themselves forward as advocates of the rights of property and as special democrats, for the purpose of upholding slavery, based as slavery is on principles at war with the fundamental idea of property and democracy.--_ed._ [ ] life, ii. , , . [ ] lord coke lays down, that upon such an occasion there ought to be a warrant by advice of the privy council, as in h. , to certain physicians and surgeons named, authorizing them to administer to the royal patient "potiones, syrupos, confectiones, laxitivas medicinas, clysteria, suppositoria, capitis purgea, capitis rasuram, fomentationes, embrocationes, emplastra," &c.; still, that no medicine should be given to the king but by the advice of his council; that no physic should be administered except that which is set down in writing, and that it is not to be prepared by any apothecary, but by the surgeons named in the warrant.-- _inst._ . these were the precautions of times when no eminent person died suddenly without suspicion of poison. even charles ii. was at first said to have been cut off to make way for a popish successor, although, when the truth came out, it appeared that he had himself been reconciled to the roman catholic church. [ ] see the speech at full length. life, ii. . there is nothing in it very good or very bad. [ ] evelyn tells us that this was the first rhinoceros ever introduced into england, and that it sold for two thousand pounds. [ ] we may add--for his tory principles, and for the loss of america to the british crown.--_ed._ [ ] saunders was very ingenious; but in the invention of charges to serve the turn of tyranny he has his match in some of our american lawyers.--_ed._ [ ] this is not the william jones mentioned in the life of lord north, but a person of a different character, one edward jones.--_ed._ [ ] so we have lately seen five inhabitants of philadelphia prosecuted for a riot, for aiding to give effect to a statute of that state abolishing negro slavery.--_ed._ [ ] the editions of these reports by the late serjeant williams, and by the present most learned judges, mr. justice patteson and mr. justice vaughan williams, illustrated by admirable notes, may be said to embody the whole common law of england, scattered about, i must confess, rather immethodically. [ ] the name is spelt no fewer than eight different ways--"jeffries," "jefferies," "jefferys," "jeffereys," "jefferyes," "jeffrys," "jeffryes," and "jeffreys," and he himself spelt it differently at different times of his life; but the last spelling is that which is found in his patent of peerage, and which he always used afterwards. [ ] "_le roy s'avisera_," the royal veto to a bill passed by the two houses. [ ] roger l'estrange was a noted pamphleteer, one of the oracles of the high church and tory party, and the founder of the first english newspaper.--_ed._ [ ] see the account of this trial in the life of north, lord guilford, ante, p. . [ ] see ante, p. . [ ] see life of saunders, ante, p. . [ ] evelyn, oct. , . "sir geo. jeffreys was advanced, reputed to be most ignorant, but most daring." [ ] stat. ed. enacted that if any outlaw yielded himself to the chief justice, &c., within a year, he should be discharged of the outlawry, and entitled to a jury. [ ] burn. own times, i. . "the king accompanied the gift with a piece of advice somewhat extraordinary from a king to a judge:--'my lord, as it is a hot summer, and you are going the circuit, i desire you will not drink too much.'" [ ] dangerfield had been a confederate of oates as one of the false witnesses to the pretended popish plot.--_ed._ [ ] for the disputes between them, see ante, p. - . [ ] ante, p. . [ ] this rigorous sentence was rigorously executed. on the day on which oates was pilloried in palace yard, he was mercilessly pelted, and ran some risk of being pulled in pieces; but in the city his partisans mustered in great force, raised a riot, and upset the pillory. they were, however, unable to rescue their favorite. it was supposed that he would try to escape the horrible doom which awaited him by swallowing poison. all that he ate and drank was therefore carefully inspected. on the following morning he was brought forth to undergo his first flogging. at an early hour an innumerable multitude filled all the streets from aldgate to the old bailey. the hangman laid on the lash with such unusual severity as showed that he had received special instructions. the blood ran down in rivulets. for a time the criminal showed a strange constancy; but at last his stubborn fortitude gave way. his bellowings were frightful to hear. he swooned several times; but the scourge still continued to descend. when he was unbound, it seemed that he had borne as much as the human frame can bear without dissolution. james was entreated to remit the second flogging. his answer was short and clear. "he shall go through with it, if he has breath in his body." an attempt was made to obtain the queen's intercession, but she indignantly refused to say a word in favor of such a wretch. after an interval of only forty-eight hours, oates was again brought out of his dungeon. he was unable to stand, and it was necessary to drag him to tyburn on a sledge. he seemed quite insensible, and the tories reported that he had stupefied himself with strong drink. a person who counted the stripes on the second day said that they were seventeen hundred. the bad man escaped with life, but so narrowly that his ignorant and bigoted admirers thought his recovery miraculous, and appealed to it as a proof of his innocence. the doors of the prison closed upon him. during many months he remained ironed in the darkest hole of newgate. it was said that in his cell he gave himself up to melancholy, and sat whole days uttering deep groans, his arms folded, and his hat pulled over his eyes. it was not in england alone that these events excited strong interest. millions of roman catholics, who knew nothing of our institutions or of our factions, had heard that a persecution of singular barbarity had raged in our island against the professors of the true faith, that many pious men had suffered martyrdom, and that titus oates had been the chief murderer. there was, therefore, great joy in distant countries when it was known that the divine justice had overtaken him. engravings of him, looking out from the pillory, and writhing at the cart's tail, were circulated all over europe; and epigrammatists, in many languages, made merry with the doctoral title which he pretended to have received from the university of salamanca, and remarked that since his forehead could not be made to blush, it was but reasonable that his back should do so. horrible as were the sufferings of oates, they did not equal his crimes. nevertheless, the punishment which was inflicted upon him cannot be justified. in sentencing him to be stripped of his ecclesiastical habit and imprisoned for life, the judges seem to have exceeded their legal power. they were undoubtedly competent to inflict whipping, nor had the law assigned a limit to the number of stripes; but the spirit of the law clearly was that no misdemeanor should be punished more severely than the most atrocious felonies. the worst felon could only be hanged. the judges, as they believed, sentenced oates to be scourged to death. that the law was defective, is not a sufficient excuse; for defective laws should be altered by the legislature, and not strained by the tribunals; and least of all should the law be strained for the purpose of inflicting torture and destroying life. that oates was a bad man is not a sufficient excuse; for the guilty are almost always the first to suffer those hardships which are afterward used as precedents for oppressing the innocent. thus it was in the present case. merciless flogging soon became an ordinary punishment for political misdemeanors of no very aggravated kind. men were sentenced for hasty words spoken against the government to pain so excruciating that they, with unfeigned earnestness, begged to be brought to trial on capital charges, and sent to the gallows. happily, the progress of this great evil was speedily stopped by the revolution, and by that article of the bill of rights which condemns all cruel and unusual punishments.--_macaulay's history of england._ [ ] fox's hist. james, ii. . [ ] macaulay gives the following account of this trial: "when the trial came on at guildhall, a crowd of those who loved and honored baxter filled the court. at his side stood doctor william bates, one of the most eminent nonconformist divines. two whig barristers of great note, pollexfen and wallop, appeared for the defendant. pollexfen had scarce begun his address to the jury, when the chief justice broke forth--'pollexfen, i know you well. i will set a mark on you. you are the patron of the faction. this is an old rogue, a schismatical knave, a hypocritical villain. he hates the liturgy. he would have nothing but long-winded cant without book;' and then his lordship turned up his eyes, clasped his hands, and began to sing through his nose, in imitation of what he supposed to be baxter's style of praying, 'lord, we are thy people, thy peculiar people, thy dear people.' pollexfen gently reminded the court that his late majesty had thought baxter deserving of a bishopric. 'and what ailed the old blockhead then,' cried jeffreys, 'that he did not take it?' his fury now rose almost to madness. he called baxter a dog, and swore that it would be no more than justice to whip such a villain through the whole city. "wallop interposed, but fared no better than his leader. 'you are in all these dirty causes, mr. wallop,' said the judge. 'gentlemen of the long robe ought to be ashamed to assist such factious knaves.' the advocate made another attempt to obtain a hearing, but to no purpose. 'if you do not know your duty,' said jeffreys, 'i will teach it you.' "wallop sat down, and baxter himself attempted to put in a word; but the chief justice drowned all expostulation in a torrent of ribaldry and invective, mingled with scraps of hudibras. 'my lord,' said the old man, 'i have been much blamed by dissenters for speaking respectfully of bishops.' 'baxter for bishops!' cried the judge; 'that's a merry conceit indeed. i know what you mean by bishops--rascals like yourself, kidderminster bishops, factious, snivelling presbyterians!' again baxter essayed to speak, and again jeffreys bellowed, 'richard, richard, dost thou think we will let thee poison the court? richard, thou art an old knave. thou hast written books enough to load a cart, and every book as full of sedition as an egg is full of meat. by the grace of god, i'll look after thee. i see a great many of your brotherhood waiting to know what will befall their mighty don. and there,' he continued, fixing his savage eye on bates, 'there is a doctor of the party at your elbow. but, by the grace of god almighty, i will crush you all!' "baxter held his peace. but one of the junior counsel for the defence made a last effort, and undertook to show that the words of which complaint was made would not bear the construction put on them by the information. with this view he began to read the context. in a moment he was roared down. 'you sha'n't turn the court into a conventicle!' the noise of weeping was heard from some of those who surrounded baxter. 'snivelling calves!' said the judge. "witnesses to character were in attendance, and among them were several clergymen of the established church. but the chief justice would hear nothing. 'does your lordship think,' said baxter, 'that any jury will convict a man on such a trial as this?' 'i warrant you, mr. baxter,' said jeffreys. 'don't trouble yourself about that.' jeffreys was right. the sheriffs were the tools of the government. the jury, selected by the sheriffs from among the fiercest zealots of the tory party, conferred for a moment, and returned a verdict of guilty. 'my lord,' said baxter, as he left the court, 'there was once a chief justice who would have treated me very differently.' he alluded to his learned and virtuous friend, sir matthew hale. 'there is not an honest man in england,' said jeffreys, 'but looks on thee as a knave.'" [ ] it is remarkable that the first common law judge, ever as such raised to the peerage, was this infamous jeffreys. we speak of lord coke, lord hale, and so of the other chief justices, but they were lords simply by their surnames and by virtue of their office, and not peers.--_ed._ [ ] ante, p. , _et seq._ [ ] bristol at this time was next to london in population, wealth, and commerce.--_ed._ [ ] macaulay states the number of the transported at eight hundred and forty-one, and of the hanged at three hundred and twenty.--_ed._ [ ] he bought with it a large estate, the name of which the people changed to aceldama, as being bought with innocent blood.--_ed._ [ ] perhaps this writer had in his eye the case of john tutchin, a noted political writer, satirized by pope, a mere boy at the time of the rebellion, and of whose case macaulay gives the following account: "a still more frightful sentence was passed on a lad named tutchin, who was tried for seditious words. he was, as usual, interrupted in his defence by ribaldry and scurrility from the judgment seat. 'you are a rebel; and all your family have been rebels since adam. they tell me that you are a poet. i'll cap verses with you.' the sentence was, that the boy should be imprisoned seven years, and should, during that period, be flogged through every market town in dorsetshire every year. the women in the galleries burst into tears. the clerk of the arraigns stood up in great disorder. 'my lord,' said he, 'the prisoner is very young. there are many market towns in our county. the sentence amounts to whipping once a fortnight for seven years.' 'if he is a young man,' said jeffreys, 'he is an old rogue. ladies, you do not know the villain as well as i do. the punishment is not half bad enough for him. all the interest in england shall not alter it.' tutchin, in his despair, petitioned, and probably with sincerity, that he might be hanged. fortunately for him, he was, just at this conjuncture, taken ill of the small pox, and given over. as it seemed highly improbable that the sentence would ever be executed, the chief justice consented to remit it in return for a bribe which reduced the prisoner to poverty. the temper of tutchin, not originally very mild, was exasperated to madness by what he had undergone. he lived to be known as one of the most acrimonious and pertinacious enemies of the house of stuart and of the tory party."--_ed._ [ ] ante, p. . [ ] one of the strongest testimonies against james is his own letter to the prince of orange, dated sept. , , in which, after giving him a long account of his fox-hunting, he says, "as for news, there is little stirring, but that the lord chief justice has almost done his campaign. he has already condemned several hundreds, some of which are already executed, some are to be, and the others sent to the plantations."--_dalrymple's app._ part ii. . the only public man who showed any bowels of compassion amidst these horrors was lord sunderland. whig party writers are at great pains to exculpate pollexfen, the great whig lawyer, who conducted all these prosecutions as counsel for the crown; but i think he comes in for no small share of the infamy then incurred, and he must be considered as principal _aide de camp_ to jeffreys in the _western campaign_. he ought to have told the jury that there was no case against the lady lisle, and when a few examples had been made, he ought to have stopped the prosecutions, or have thrown up his briefs. [ ] i hope i have not been prejudiced in my estimate of james's character by the consideration that when acting as regent in scotland he issued an order (afterwards recalled) for the utter suppression of the name of campbell, "which," says mackintosh, "would have amounted to a proscription of several noblemen, a considerable body of gentry, and the most numerous and powerful tribe in the kingdom." [ ] this "dispensing power" claimed by jeffreys and the english judges for james ii. was but a trifle compared to the "dispensing power" recently claimed by some of our american lawyers and judges for acts of congress. all that was claimed for james was, power to dispense with acts of parliament, while our american improvers upon this doctrine go so far as to claim for congress a power to dispense with and supersede the laws of god.--_ed._ [ ] whether diplomatic intercourse with the pope is now forbidden, depends upon the construction to be put upon the words, "shall hold _communion_ with the see or church of rome" in the bill of rights. this seems to refer to _spiritual_ communion only, or the queen would hold communion with the successor of mahomet by appointing an ambassador to the sublime porte. [ ] the strong analogy between these ecclesiastical commissioners and our recent american slave catching commissioners, both in powers, method of procedure, and object arrived at, has been already referred to, and can hardly fail to strike the reader.--_ed._ [ ] judge kane, in passmore williamson's case, went further than that. because he refused to obey the mandate of judge kane to produce in his court certain persons over whom he had no control, with a view to their surrender to slavery, judge kane, under the name of a contempt, sentenced him to an indefinite imprisonment.--_ed._ [ ] when a peer is tried in parliament before the house of lords, the lord high steward votes like the rest of the peers, who have all a right to be present; but if the trial be out of parliament, the lord high steward is only the judge to give direction in point of law, and the verdict is by the lords triers specially summoned. [ ] in james's memoirs, all the blame of this prosecution is thrown upon jeffreys; but it is more probable that he only recklessly supported his master. [ ] the arrangement of counsel in this celebrated case was very whimsical. the bishops were defended by pemberton, the ex-chief justice, who had presided at several of the late state trials, by levinz, sawyer, and finch, who had conducted them very oppressively for the crown, and by pollexfen, treby, and somers, considered steady whigs. [ ] it was pretended by the anti-jacobites, that is, the enemies of james and the exiled stuarts, that the infant had been smuggled into the queen's bed in a warming-pan.--_ed._ [ ] th november, . vernon, , _searle_ v. _lane_. by a reference to the minute books in the registrar's office, it appears that jeffreys sat again on monday, nov. , when he decided _duval_ v. _edwards_, a case on exceptions, nine in number, giving a separate judgment on each. he did not sit on the th, but he did on the th, which was the last day of term. so late as the th of december he sat and heard several petitions. in the evening of this day the great seal was taken from him. [ ] "bottomry bond." this contraction shows the etymology of an elegant english word from "bottom," which dr. johnson chooses to derive from the dutch word "bomme." [ ] _i. e._ the principal being put in hazard, the interest was not usurious. [ ] the following is from macaulay's elaborate portraiture of jeffreys on the bench: "all tenderness for the feelings of others, all self-respect, all sense of the becoming, were obliterated from his mind. he acquired a boundless command of the rhetoric in which the vulgar express hatred and contempt. the profusion of maledictions and vituperative epithets which composed his vocabulary could hardly have been rivalled in the fish-market or the bear-garden. his countenance and his voice must always have been unamiable; but these natural advantages--for such he seems to have thought them--he had improved to such a degree that there were few who, in his paroxysms of rage, could see or hear him without emotion. impudence and ferocity sat upon his brow. the glare of his eyes had a fascination for the unhappy victim on whom they were fixed; yet his brow and eye were said to be less terrible than the savage lines of his mouth. his yell of fury, as was said by one who had often heard it, sounded like the thunder of the judgment day." [ ] down to this time trials at nisi prius had not assumed their present shape. the issue being read to the jury, the evidence was given, and with hardly any speeches from counsel, all seems to have been left to the judge. [ ] state trials, . [ ] the plan was formed of ruling by a standing army. but without a parliament, how was this army to be kept in a proper state of discipline? in time of war, or during a rebellion, troops in the field were subject to martial law, and they might be punished, by sentence of a court martial, for mutiny or desertion. but the country was now in a state of peace and profound tranquillity; and the common law, which alone prevailed, knew no distinction between citizen and soldier; so that, if a lifeguardsman deserted, he could only be sued for breach of contract, and if he struck his officer, he was only liable to an indictment or an action of battery. while the king's military force consisted of a few regiments of household troops, with high pay, desertion was not to be apprehended, and military offences were sufficiently punished by dismission from the service. but james found it impossible to govern the numerous army which he had collected at hounslow without the assistance of martial law; and he contended that, without any act of parliament, he was at all times entitled, by virtue of his prerogative, to put martial law in force against military men, although it could only be put in force against civilians when war or rebellion was raging in the kingdom. the question first arose at the old bailey, before sir john holt, then recorder of london, and he decided against the crown, as might have been expected; for, while avoiding keen partisanship in politics, he had been always whiggishly inclined. james thought he was quite secure by appealing to the ultra tory, lord chief justice herbert. to the utter amazement of the king and the courtiers, this honorable, although shallow, magistrate declared that, without an act of parliament, all laws were equally applicable to all his majesty's subjects, whether wearing red coats or gray. being taunted with inconsistency in respect of his judgment in favor of the dispensing power, he took this distinction, "that a statute altering the common law might be suspended by the king, who is really the lawgiver, notwithstanding the form that he enacts 'with the _assent_ of the lords spiritual and temporal, and commons;' but that the common law cannot be altered by the king's sole authority, and that the king can do nothing contrary to the common law, as that must be considered coeval with the monarchy." james, with the infatuated obstinacy which was now driving him to destruction, set this opinion at defiance; and, encouraged by jeffreys, caused a soldier to be capitally prosecuted, at the reading assizes, for deserting his colors. the judges who presided there resorted to some obsolete, inapplicable act of parliament, and were weak enough to lay down the law in the manner suggested to them by the chancellor, so that a conviction was obtained. to give greater solemnity and _eclat_ to the execution, the attorney general moved the court of king's bench for an order that it might take place at plymouth, in sight of the garrison from which the prisoner had run away. but herbert peremptorily declared that the court had no jurisdiction to make such an order, and prevailed on his brother wythens to join with him in this opinion. mr. attorney took nothing by his motion, but the recreant chief justice and the recreant puisne were both next morning dismissed from their offices, to make way for the most sordid wretches to be picked up in westminster hall--sir robert wright and sir richard allibone, a professed papist. [ ] the two clergymen who were most applauded on this occasion were the bold one, who, refusing to obey the royal mandate, took for his text "be it known unto thee, o king, that we will not serve thy gods, nor worship the golden image which thou hast set up;" and the humorous one, who, having said, "my brethren, i am obliged to read this declaration, but you are not obliged to listen to it," waited till they were all gone, clerk and all, before the reading of the declaration began. [ ] more than one american advocate for treating the fugitive slave act as a law, and submitting to it as such, till repealed, has preached precisely this doctrine.--_ed._ [ ] state trials, - . [ ] it was supposed that he was jealous of williams, the solicitor general, who had been promised by james the highest offices of the law if he could convict the bishops. this may account for a sarcasm he levelled at his rival during the trial. williams, having accounted for a particular vote of the house of commons in the reign of james ii., when he himself was a member and suspected of bribery, said "there was a lump of money in the case." wright, in referring to this, observed, "mr. solicitor tells you the reason, 'there was a lump of money in the case;' but i wonder, indeed, to hear it come from him." williams, understanding the insinuation, exclaimed, "my lord, i assure you i never gave my vote for money in my life." [ ] a similar and alarming reaction towards despotism has exhibited itself in america since the passage of the fugitive slave act of , in the combination of so many distinguished jurists and divines to denounce the doctrine of a "higher law," and to advocate the "divine right" of congress to make enactments according to its own pleasure and judgment, which enactments are to take precedence as rules of conduct of the individual conscience, which it is attempted to silence by stigmatizing it as a prejudice. not only does there seem reason to dread that we may soon be under legislators and an executive who, believing in the divine right of those in authority, will not only applaud but act upon the principles of arbitrary government, we lately have been and still are, so far as the federal executive and the federal senate are concerned, under precisely such ministers and legislators; and having lately had some such experience of the practical results of such principles in the administration of justice, what more natural than to compare our sufferings with those of our british forefathers, and to seek to learn from their experience the natural cure for such evils?--_ed._ [ ] jane johnson's suggestions, on the ground that she was a stranger to the proceeding, were allowed no weight towards the liberation of williamson, and were refused admittance on the files of the court. at the same time, the suggestions of mr. cadwallader, another stranger, were eagerly clutched at and put upon the record, with a view to better the position of judge kane. [ ] the account of the final proceedings is from the philadelphia _evening bulletin_. * * * * * transcriber's note: footnote appears on page of the text, but there is no corresponding marker on the page. mismatched quotation marks in the original were not corrected. [illustration: cover] [frontispiece: "if ever you see hounds pointing this way, don't spare spurs to get to the cliff before them!" [page .]] in mr. knox's country by e. [oe]. somerville and martin ross authors of "some experiences of an irish r.m.," "further experiences of an irish r.m.," "some irish yesterdays," "all on the irish shore," "dan russel the fox," "the real charlotte," etc. etc. etc. with illustrations by e. [oe]. somerville longmans, green and co. paternoster row, london fourth avenue & th street, new york bombay, calcutta, and madras all rights reserved contents i. the aussolas martin cat ii. the finger of mrs. knox iii. the friend of her youth iv. harrington's v. the maroan pony vi. major apollo riggs vii. when i first met dr. hickey viii. the bosom of the mcrorys ix. put down one and carry two x. the comte de pralines xi. the shooting of shinroe list of illustrations "if ever you see hounds pointing this way, don't spare spurs to get to the cliff before them!" . . . . . . . . . . . . . _frontispiece_ kitty the shakes "i heard scald-crow laughter behind me in the shawls" "lyney's a tough dog!" "walkin' aisy" james miss cooney o'rattigan miss larkie mcrory in mr. knox's country i the aussolas martin cat flurry knox and i had driven some fourteen miles to a tryst with one david courtney, of fanaghy. but, at the appointed cross-roads, david courtney was not. it was a gleaming morning in mid-may, when everything was young and tense and thin and fit to run for its life, like a derby horse. above us was such of the spacious bare country as we had not already climbed, with nothing on it taller than a thorn-bush from one end of it to the other. the hill-top blazed with yellow furze, and great silver balls of cloud looked over its edge. nearly as white were the little white-washed houses that were tucked in and out of the grey rocks on the hill-side. "it's up there somewhere he lives," said flurry, turning his cart across the road; "which'll you do, hold the horse or go look for him?" i said i would go to look for him. i mounted the hill by a wandering bohireen resembling nothing so much as a series of bony elbows; a white-washed cottage presently confronted me, clinging, like a sea-anemone, to a rock. i knocked at the closed door, i tapped at a window held up by a great, speckled foreign shell, but without success. climbing another elbow, i repeated the process at two successive houses, but without avail. all was as deserted as pompeii, and, as at pompeii, the live rock in the road was worn smooth by feet and scarred with wheel tracks. an open doorway faced me; i stooped beneath its lintel and asked of seeming vacancy if there were "anyone inside." there was no reply. i advanced into a clean kitchen, with a well-swept earthen floor, and was suddenly aware of a human presence very close to me. a youngish woman, with a heavy mop of dark hair, and brown eyes staring at the opposite wall, was sitting at the end of a settle behind the door. every bit of her was trembling. she looked past me as if i did not exist. feeling uncertain as to whether she or i were mad, i put to her my question as to where david courtney lived, without much expectation of receiving an answer. still shaking from head to foot, and without turning her eyes, she replied: "a small piece to the north. the house on the bare rock." the situation showed no symptom of expansion; i faltered thanks to her profile and returned to flurry. the house of david courtney produced david courtney's large and handsome wife, who told us that himself was gone to a funeral, and all that was in the village was gone to it, but there was a couple of the boys below in the bog. "what have they done with those cubs?" asked flurry. mrs. courtney shot at him a dark-blue side-glance, indulgent and amused, and, advancing to the edge of her rock terrace, made a trumpet of her hands and projected a long call down the valley. "mikeen! con! come hither!" from a brown patch in the green below came a far-away response, and we presently saw two tall lads coming towards us, running up the hill as smoothly and easily as a couple of hounds. their legs were bare and stained with bog-mould, they were young and light and radiant as the may weather. i did not withhold my opinion of them from their proprietor. "why, then, i have six more as good as them!" replied mrs. courtney, her hands on her hips. we took the horse from the shafts and pushed him, deeply suspicious, into a darksome lair, in one corner of which glimmered a pale object, either pig or calf. when this was done we followed mikeen and con up through blossoming furze and blue-grey rock to the ridge of the hill, and there came face to face with the vast blue dazzle of the atlantic, with a long line of cliffs standing it off, in snowy lather, as far as eye could follow them into the easterly haze. "that's the cliff over-right you now," said one of the boys, pointing downwards, with a hand dark with bog-stuff, to a grey and green wedge thrust out into the blue. "it's there where she have her den. she have a pat' down for herself in it--it's hardly a bird could walk it--the five pups was following her, and two o' them rolled down into the strand, and our dogs held them. ourselves was below in the cove gathering seaweed." "make a note of it now, major," said flurry, "and if ever you see hounds pointing this way, don't spare spurs to get to the cliff before them!" "why don't you get them out and blow up the place?" "is it get them out of that hole!" said one of the boys. "if all the foxes in europe was inside in it you couldn't get them out!" "we mightn't want them either," said flurry, his eye ranging the face of the cliff, and assimilating its uncompromising negations. "then there's plenty that would!" returned mikeen, looking at us with an eye as blue and bright as the sea. "there was a man east here that cot a fox and her five young ones in the one night, and he got three half-crowns for every lad o' them!" "he'd be turned out of hell for doing that," said flurry, very severely. we went back to the cottage on the rock, and the matter entered upon its more serious phase. i took no part in the negotiations, and employed myself in converse with mrs. courtney, who--it may not be out of place to recall--informed me, amongst other domestic details, that the farm wouldn't carry all the children she had, and that nowadays, when the ger'rls would be going to america, it's white nightdresses and flannelette nightdresses she should give them; and further, that she thought, if she lived to be as old as a goat, she'd never see them so tasty. on the way home i asked flurry what he was going to do with the two cubs, now immured in a market basket under the seat of the dog-cart. flurry was ambiguous and impenetrable; there were certain matters in which flurry trusted nobody, knowing the darkness of his own heart and the inelasticity of other people's points of view. "that woman, you know, that told you the way," he remarked, with palpable irrelevance, "'kitty the shakes,' they call her--they say she mightn't speak to anyone once in three months, and she shakes that way then. it's a pity that was the house you went into first." [illustration: kitty the shakes.] "why so?" said i. "that's the why!" said flurry. it was during the week following this expedition that philippa and i stayed for a few days at aussolas, where flurry and mrs. flurry were now more or less permanently in residence. the position of guest in old mrs. knox's house was one often fraught with more than the normal anxieties proper to guests. her mood was like the weather, a matter incalculable and beyond control; it governed the day, and was the _leit motif_ in the affairs of the household. i hope that it may be given to me to live until my mood also is as a dark tower full of armed men. on the evening of our arrival my wife, whose perception of danger is comparable only to that of the wild elephant, warned me that mrs. knox was rheumatic, and that i was on no account to condole with her. later on the position revealed itself. mrs. knox's dublin doctor had ordered her to buxton with as little delay as possible; furthermore, she was to proceed to brighton for the summer, possibly for the winter also. she had put aussolas on a house agent's books, "out of spite," flurry said sourly; "i suppose she thinks i'd pop the silver, or sell the feather beds." it was a tribute to mrs. knox's character that her grandson treated her as a combatant in his own class, and did not for an instant consider himself bound to allow her weight for either age or sex. at dinner that night mrs. knox was as favourable to me as usual; yet it was pointed out to me by mrs. flurry that she was wearing two shawls instead of one, always an indication to be noted as a portent of storm. at bridge she played a very sharp-edged game, in grimness scarcely mitigated by two well-brought-off revokes on the part of philippa, who was playing with flurry; a gross and unprincipled piece of chivalry on my wife's part that was justly resented by mr. knox. next morning the lady of the house was invisible, and mullins, her maid, was heard to lament to an unknown sympathiser on the back stairs that the divil in the wild woods wouldn't content her. in the grove at aussolas, on a height behind the castle, romantically named mount ida, there is a half-circle of laurels that screens, with pleasing severity, an ancient bench and table of stone. the spot commands a fair and far prospect of aussolas lake, and, nearer at hand, it permitted a useful outlook upon the kitchen garden and its affairs. when old mrs. knox first led me thither to admire the view, she mentioned that it was a place to which she often repaired when the cook was on her trail with enquiries as to what the servants were to have for dinner. since our expedition to fanaghy the glory of the weather had remained unshaken, and each day there was a shade of added warmth in the sunshine and a more caressing quality in the wind. flurry and i went to petty sessions in the morning, and returned to find that mrs. knox was still in her room, and that our respective wives were awaiting us with a tea-basket in the classic shades of mount ida. mrs. knox had that mysterious quality of attraction given to some persons, and some dogs, of forming a social vortex into which lesser beings inevitably swim; yet i cannot deny that her absence induced a sneaking sensation of holiday. had she been there, for example, mrs. flurry would scarcely have indicated, with a free gesture, the luxuriance of the asparagus beds in the kitchen garden below, nor promised to have a bundle of it cut for us before we went home; still less would she and philippa have smoked cigarettes, a practice considered by mrs. knox to be, in women, several degrees worse than drinking. to us there, through the green light of young beech leaves and the upstriking azure glare of myriads of bluebells, came the solid presence of john kane. it would be hard to define john kane's exact status at aussolas; flurry had once said that, whether it was the house, or the garden, or the stables, whatever it'd be that you wanted to do, john kane'd be in it before you to hinder you; but that had been in a moment of excusable irritation, when john kane had put a padlock on the oat loft, and had given the key to mrs. knox. john kane now ascended to us, and came to a standstill, with his soft black hat in his hands; it was dusty, so were his boots, and the pockets of his coat bulked large. among the green drifts and flakes of the pale young beech leaves his bushy beard looked as red as a squirrel's tail. "i have the commands here, master flurry," he began, "and it's to yourself i'd sooner give them. as for them ger'rls that's inside in the kitchen, they have every pup in the place in a thrain at the back door, and, if your tobacco went asthray, it's me that would be blemt." "the commands"--_i.e._ some small parcels--were laid on the stone table, minor pockets yielded an assortment of small moneys that were each in turn counted and placed in heaps by their consort parcels. "and as for the bottle, the misthress wrote down for me," said john kane, his eye rounding up his audience like a sheep-dog, "i got me 'nough with the same bottle. but sure them's the stupidest people in hennessy's! 'twas to hennessy himself i gave the misthress's paper, and he was there looking at it for a while. 'what have she in it?' says he to me. 'how would i know,' says i, 'me that have no learning?' he got the spy-glass to it then, and 'twas shortly till all was in the shop was gethered in it looking at it. 'twould take an expairt to read it!' says one fella----" "true for him!" said flurry. "---- 'she have written it in latin!' says hennessy. 'faith she's able to write it that way, or anny other way for yee!' says i. 'well, i'll tell ye now what ye'll do,' says hennessy. 'there's a boy in the medical hall, and he's able to read all languages. show it to him,' says he. i showed it then to the boy in the medical hall. sure, the very minute he looked at it--'elliman's embrocation,' says he." john kane waved his hand slightly to one side; his gestures had throughout been supple and restrained. "sure them's the stupidest people in hennessy's!" my sympathies were with the house of hennessy; i, too, had encountered mrs. knox's handwriting, and realised the high imaginative and deductive qualities needed in its interpreter. no individual word was decipherable, but, with a bold reader, groups could be made to conform to a scheme based on probabilities. "you can tell the mistress what they were saying at hennessy's about her," said flurry. "i will, your honour," replied john, accepting the turn in the conversation as easily as a skilful motorist changes gear. "i suppose you'll have a job for me at tory lodge when i get the sack from the misthress?" "no, but they tell me i'm to be put on the old age pension committee," returned flurry, "and i might get a chance to do something for you if you'd give over dyeing that beard you have." "i'm sorry to say it's the almighty is dyeing my beard for me, sir," replied john kane, fingering a grey streak on his chin, "and i think he's after giving yourself a touch, too!" he glanced at the side of flurry's head, and his eye travelled on to mine. there was an almost flagrant absence of triumph in it. he put aside a beechen bough with his hand; "i'll leave the things on the hall table for you, sir," he said, choosing the perfect moment for departure, and passed out of sight. the bough swung into place behind him; it was like an exit in a pastoral play. "she never told me about the embrocation," said sally, leaning back against the mossed stones of the bench and looking up into the web of branches. "she never will admit that she's ill." "poor old mrs. knox!" said philippa compassionately, "i thought she looked so ill last night when she was playing bridge. such a tiny fragile thing, sitting wrapped up in that great old chair----" philippa is ineradicably romantic, yet my mind, too, dwelt upon the old autocrat lying there, ill and undefeated, in the heart of her ancient fortress. "fragile!" said flurry, "you'd best not tell her that. with my grandmother no one's ill till they're dead, and no one's dead till they're buried!" away near the house the peacock uttered his defiant screech, a note of exclamation that seemed entirely appropriate to aussolas; the turkey-cock in the yard accepted the challenge with effusion, and from further away the voice of mrs. knox's kerry bull, equally instant in taking offence, ascended the gamut of wrath from growl to yell. blended with these voices was another--a man's voice, in loud harangue, advancing down the long beech walk to the kitchen garden. as it approached, the wood-pigeons bolted in panic, with distracted clappings of wings, from the tall firs by the garden wall in which they were wont to sit arranging plans of campaign with regard to the fruit. we sat in tense silence. the latch of the garden gate clicked, and the voice said in stentorian tones: "----my father 'e kept a splendid table!" "i hear wheels!" breathed sally knox. a hawthorn tree and a laburnum tree leaned over the garden gate, and from beneath their canopy of cream and pale gold there emerged the bath-chair of mrs. knox, with mrs. knox herself seated in it. it was propelled by mullins--even at that distance the indignation of mullins was discernible--and it progressed up the central path. beside it walked the personage whose father had kept a splendid table. parenthetically it may be observed that he did credit to it. "glory be to moses! look at my grandmother!" said flurry under his breath. "how fragile she is! who the dickens has she got hold of?" "he thinks she's deaf, anyhow," said sally. "that's where he makes the mistake!" returned flurry. "i don't see your glawss, mrs. knox," shouted the stout gentleman. "that's very possible," replied the incisive and slightly cracked voice of mrs. knox, "because the little that is left of it is in the mortar on the wall, to keep thieves out, which it fails to do." the pair passed on, and paused, still in high converse, at the asparagus beds; mullins, behind the bath-chair, wiped her indignant brow. "you'll go home without the asparagus," whispered flurry, "she has every stick of it counted by now!" they moved on, heading for the further gate of the garden. "i'll bet a sovereign he's come after the house!" flurry continued, following the _cortège_ with a malevolent eye. later, when we returned to the house, we found a motor-bicycle, dusty and dwarfish, leaning against the hall door steps. within was the sound of shouting. it was then half-past seven. "is it possible that she's keeping him for dinner?" said sally. "take care he's not staying for the night!" said flurry. "look at the knapsack he has on the table!" "there's only one room he can possibly have," said mrs. flurry, with a strange and fixed gaze at her lord, "and that's the james the second room. the others are cleared for the painters." "oh, that will be all right," replied her lord, easily. when i came down to dinner i found the new arrival planted on his short, thick legs in front of the fireplace, still shouting at mrs. knox, who, notwithstanding the sinister presence of the two shawls of ill-omen, was listening with a propitious countenance. she looked very tired, and i committed the _gaucherie_ of saying i was sorry to hear she had not been well. "oh, that was nothing!" said mrs. knox, with a wave of her tiny, sunburnt, and bediamonded hand. "i've shaken that off, 'like dewdrops from the lion's mane!' this is mr. tebbutts, from--er--england, major yeates." mr. tebbutts, after a bewildered stare, presumably in search of the lion, proclaimed his gratification at meeting me, in a voice that might have been heard in the stable yard. at dinner the position developed apace. the visitor was, it appeared, the representative of a patriarchal family, comprising samples of all the relationships mentioned in the table of affinities, and _fortissimo_, and at vast length, he laid down their personal histories and their various requirements. it was pretty to see how old mrs. knox, ill as she looked, and suffering as she undoubtedly was, mastered the bowling. did the tebbutts ladies exact bathing for their young? the lake supplied it. ("it's all mud and swallow-holes!" said flurry in an audible aside.) did the brothers demand trout fishing? the schoolboys rabbit shooting? the young ladies lawn tennis and society?--all were theirs, especially the latter. "my grandson and his wife will be within easy reach in their own house, tory lodge!" the remark about the swallow-holes had not been lost upon the lady of the lake. mrs. knox had her glass of port at dessert, an act equivalent to snapping her rheumatic fingers in our faces, and withdrew, stiff but erect, and still on the best of terms with her prospective tenant. as i held the door open for her, she said to me: "''twas whispered in heaven, 'twas muttered in hell.'" by an amazing stroke of luck i was enabled to continue: "'and echo caught softly the sound as it fell!'" with a glance at mr. tebbutts that showed i was aware the quotation was directed at his missing aspirates. as the door closed, the visitor turned to flurry and said impressively: "there's just one thing, mr. knox, i should like to mention, if you will allow me. are the drains quite in order?" "god knows," said flurry, pulling hard at a badly-lighted cigarette and throwing himself into a chair by the turf fire. "mrs. knox's health has held out against them for about sixty years," i remarked. "well, as to that," replied mr. tebbutts, "i feel it is only right to mention that the dear old lady was very giddy with me in the garden this afternoon." flurry received this remarkable statement without emotion. "maybe she's taken a fancy to you!" he said brutally. "if it wasn't that it was whipped cream." mr. tebbutts' bulging eyes sought mine in complete mystification; i turned to the fire, and to it revealed my emotions. flurry was not at all amused. "well--er--i understood her maid to say she 'ad bin ailing," said the guest after a pause. "i'd have called it a kind of a megrim myself, and, as i say, i certainly perceived a sort of charnel-'ouse smell in the room i'm in. and look 'ere, mr. knox, 'ere's another thing. 'ow about rats? you know what ladies are; there's one of my sisters-in-law, mrs. william tebbutts, who'd just scream the 'ouse down if she 'eard the 'alf of what was goin' on behind the panelling in my room this evening." "anyone that's afraid of rats had better keep out of aussolas," said flurry, getting up with a yawn. "mr. tebbutts is in the james the second room, isn't he?" said i, idly. "isn't that the room with the powdering-closet off it?" "it is," said flurry. "anything else you'd like to know?" i recognised that someone had blundered, presumably myself, and made a move for the drawing-room. mrs. knox had retired when we got there; my wife and mrs. flurry followed suit as soon as might be; and the guest said that, if the gentlemen had no objection, he thought he'd turn in too. flurry and i shut the windows--fresh air is a foible of the female sex--heaped turf on the fire, drew up chairs in front of it, and composed ourselves for that sweetest sleep of all, the sleep that has in it the bliss of abandonment, and is made almost passionate by the deep underlying knowledge that it can be but temporary. how long we had slumbered i cannot say; it seemed but a moment when a door opened in our dreams, and the face of mr. tebbutts was developed before me in the air like the face of the cheshire cat, only without the grin. "mr. knox! gentlemen!" he began, as if he were addressing a meeting. the thunder had left his voice; he stopped to take breath. he was in his shirt and trousers, and the laces of his boots trailed on the floor behind him. "i've 'ad a bit of a start upstairs. i was just winding up my watch at the dressing-table when i saw some kind of an animal gloide past the fireplace and across the room----" "what was it like?" interrupted flurry, sitting up in his chair. "well, mr. knox, it's 'ard to say what it was like. it wasn't a cat, nor yet it wasn't what you could call a squirrel----" flurry got on to his feet. "by the living jingo!" he said, turning to me an awestruck countenance; "he's seen the aussolas martin cat!" i had never before heard of the aussolas martin cat, and it is indisputable that a slight chill crept down my backbone. mr. tebbutts' eyes bulged more than ever, and his lower lip fell. "what way did it go?" said flurry; "did it look at you?" "it seemed to disappear in that recess by the door," faltered the seer of the vision; "it just vanished!" "i don't know if it's for my grandmother or for me," said flurry in a low voice, "but it's a death in the house anyway." the colour in mr. tebbutts' face deepened to a glossy sealing-wax red. "if one of you gents would come upstairs with me," he said, "i think i'll just get my traps together. i can be back at the 'otel in 'alf an 'our----" flurry and i accompanied mr. tebbutts to the james the second room. over mrs. knox's door there were panes of glass, and light came forth from them. (it is my belief that mrs. knox never goes to bed.) we trod softly as we passed it, and went along the uncarpeted boards of the musicians' gallery above the entrance hall. there certainly was a peculiar odour in the james the second room, and the adjective "charnel-'ouse" had not been misapplied. i thought about a dead rat, and decided that the apparition had been one of the bandit tribe of tawny cats that inhabited the aussolas stables. and yet legends of creatures that haunted old houses and followed old families came back to me; of one in particular, a tale of medieval france, wherein "a yellow furry animal" ran down the throat of a sleeping lady named sagesse. mr. tebbutts, by this time fully dressed, was swiftly bestowing a brush and comb in his knapsack. perhaps he, too, had read the legend about madame sagesse. flurry was silently, and with a perturbed countenance, examining the room; rapping at the panelling and peering up the cavernous chimney; i heard him sniff as he did so. possibly he also held the dead-rat theory. he opened the flap in the door of the powdering-closet, and, striking a match, held it through the opening. i looked over his shoulder, and had a glimpse of black feathers on the floor, and a waft of a decidedly "charnel-'ouse" nature. "damn!" muttered flurry to himself, and slammed down the flap. "i think, sir," said mr. tebbutts, with his knapsack in his hand and his cap on his head, "i must ask you to let mrs. knox know that this 'ouse won't suit mrs. william tebbutts. you might just say i was called away rather sudden. of course, you won't mention what i saw just now--i wouldn't wish to upset the pore old lady----" we followed him from the room, and treading softly as before, traversed the gallery, and began to descend the slippery oak stairs. flurry was still looking furtively about him, and the thought crossed my mind that in the most hard-headed irishman there wanders a vein of superstition. before we had reached the first landing, the violent ringing of a handbell broke forth in the room with the light over the door, followed by a crash of fire-irons; then old mrs. knox's voice calling imperatively for mullins. there was a sound of rushing, slippered feet, a bumping of furniture; with a squall from mullins the door flew open, and i was endowed with a never-to-be-forgotten vision of mrs. knox, swathed in hundreds of shawls, in the act of hurling the tongs at some unseen object. almost simultaneously there was a scurry of claws on the oak floor above us, mrs. knox's door was slammed, and something whizzed past me. i am thankful to think that i possess, as a companion vision to that of mrs. knox, the face of mr. tebbutts with the candle light on it as he looked up from the foot of the stairs and saw the aussolas martin cat in his track. "look out, tebbutts!" yelled flurry. "it's you he's after!" mr. tebbutts here passed out of the incident into the night, and the aussolas martin cat was swallowed up by a large hole in the surbase in the corner of the first landing. "he'll come out in the wine-cellar," said flurry, with the calm that was his in moments of crisis, "the way the cat did." i pulled myself together. "what's happened to the other fanaghy cub?" i enquired with, i hope, equal calmness. "he's gone to blazes," replied flurry; "there isn't a wall in this house that hasn't a way in it. i knew i'd never have luck with them after you asking the way from kitty the shakes." as is usual in my dealings with flurry, the fault was mine. while i reflected on this, the stillness of the night was studded in a long and diminishing line by the running pant of the motor-bicycle. ii the finger of mrs. knox a being stood in a dark corner under the gallery of the hall at aussolas castle; a being who had arrived noiselessly on bare feet, and now revealed its presence by hard breathing. "come in, mary," commanded old mrs. knox without turning her head; "make up the fire." "i will, ma'am," murmured the being, advancing with an apologetic eye upon me, and an undulating gait suggestive of a succession of incipient curtsies. she was carrying an armful of logs, and, having stacked them on the fire in a heap calculated to set alight any chimney less roomy than the severn tunnel, she retired by way of the open hall door with the same deferential stealth with which she had entered. "the hen-woman," explained mrs. knox casually, "the only person in this place who knows a dry log from a wet one." like all successful rulers, mrs. knox had the power of divining in her underlings their special gifts, and of wresting them to the sphere in which they shone, no matter what their normal functions might be. she herself pervaded all spheres. "there's no pie but my grandmother has a finger in it," was flurry knox's epitome of these high qualities; a sour tribute from one freebooter to another. "if the mistress want a thing she mus' have it!" was the comment of john kane, the gamekeeper, as he threw down the spade with which he was digging out a ferret, and armed himself with a holly-bush wherewith to sweep the drawing-room chimney. as mrs. knox and i sat by the hen-woman's noble fire, and gossiped, the cook panted in with the tea-tray; the butler, it appeared, had gone out to shoot a rabbit for dinner. all these things pointed to the fact that mrs. knox's granddaughter-in-law, mrs. flurry, was not, at the moment, in residence at aussolas. the jungle was creeping in; sally knox, by virtue, i suppose, of her english mother, spasmodically endeavoured to keep it out, but with her departure the wild triumphed. it was an october afternoon, grey and still; the hall door stood open, as indeed it always did at aussolas, and on the topmost of the broad limestone steps mrs. knox's white woolly dog sat, and magisterially regarded lake and wood and lawn. the tawny bracken flowed like a sea to the palings that bounded the lawn; along its verge squatted the rabbits, motionless for the most part, sometimes languidly changing their ground, with hops like the dying efforts of a mechanical toy. the woolly dog had evidently learned in many fruitless charges the futility of frontal attack; a close and menacing supervision from the altitude of the steps was all that was consistent with dignity, but an occasional strong shudder betrayed his emotion. the open door framed also a pleasing view of my new car, standing in beautiful repose at the foot of the steps, splashed with the mud of a twenty-mile run from an outlying petty sessions court; her presence added, for me, the touch of romance. it was twilight in the back of the hall by the fireplace; the flames of the logs, branching like antlers, made a courteous and not too searching inquisition into dark corners, and lighted with a very suitable evasiveness mrs. knox's witch of endor profile. she wore her usual velvet bonnet; the rest of her attire recalled to my memory the summary of it by her kinswoman, lady knox, "a rag bag held together by diamond brooches." yet, according to her wont, her personality was the only thing that counted; it reduced all externals to a proper insignificance. the object of my visit had ostensibly been to see her grandson, but flurry was away for the night. "he's sleeping at tory lodge," said mrs. knox. "he's cubbing at drumvoortneen, and he has to start early. he tried to torment me into allowing him to keep the hounds in the yard here this season, but i had the pleasure of telling him that old as i might be, i still retained possession of my hearing, my sense of smell, and, to a certain extent, of my wits." "i should have thought," i said discreetly, "that tory lodge was more in the middle of his country." "undoubtedly," replied flurry's grandmother; "but it is not in the middle of my straw, my meal, my buttermilk, my firewood, and anything else of mine that can be pilfered for the uses of a kennel!" she concluded with a chuckle that might have been uttered by a scald-crow. i was pondering a diplomatic reply, when the quiet evening was rent by a shrill challenge from the woolly dog. "thy sentinel am i!" he vociferated, barking himself backwards into the hall, in proper strategic retreat upon his base. a slow foot ascended the steps, and the twilight in the hall deepened as a man's figure appeared in the doorway; a middle-aged man, with his hat in one hand, and in the other a thick stick, with which he was making respectfully intimidating demonstrations to the woolly dog. "who are you?" called out mrs. knox from her big chair. "i'm casey, your ladyship," replied the visitor in a deplorable voice, "from killoge." "cornelius casey?" queried mrs. knox. "no, but his son, your honour ma'am, stephen casey, one of the tenants." "well, come in, stephen," said mrs. knox affably, supplementing her spectacles with a gold-rimmed single eye-glass, and looking at him with interest. "i knew your father well in old times, when he used to stop the earths in killoge wood for the colonel. they tell me that's all cut down now?" "there's not the boiling of a kettle left in it afther goggin, my lady!" said casey eagerly. mrs. knox cut him short. "many a good hunt the colonel had out of killoge, and i too, for the matter of that!" she added, turning to me; "my cousin bessie hamilton and i were the only huntresses in the country in those days, and people thought us shocking tomboys, i believe. now, what with driving motors and riding astride, the gentlemen are all ladies, and the ladies are gentlemen!" with another scald-crow chuckle she turned to casey. "did your father ever tell you of the great hunt out of killoge into the fanaghy cliffs?" "he did, your ladyship, he did!" responded casey, with a touch of life in his lamentable voice. "often he told me that it knocked fire from his eyes to see yourself facing in at the killoge river." "i was riding bijou, the grandmother of old trinket, in that run," said mrs. knox, leaning back in her chair, with a smile that had something of the light of other days in it. i remembered the story that colonel knox had run away with her after a hunt, and wondered if that had been the occasion when she had knocked fire from the eyes of cornelius casey. her thin old hand drooped in momentary languor over the arm of her chair; and the woolly dog thrust his nose under it, with a beady eye fixed upon the hot cakes. "here!" said mrs. knox, sitting up, and throwing a buttery bun on the floor. "be off with you! well, casey," she went on, "what is it you want with me?" "great trouble i got, mrs. knox, your honour ma'am," replied casey from the door-mat, "great trouble entirely." he came a step or two nearer. he had a long, clean-shaved face, with mournful eyes, like a sick bloodhound, and the enviable, countryman's thatch of thick, strong hair, with scarcely a touch of grey in it. "that goggin, that has the shop at killoge cross, has me processed. i'm pairsecuted with him; and the few little bastes i has, and me donkey and all--" his voice thinned to a whimper, "he's to drive them to-morrow----" "i suppose that's goggin, the gombeen?" said mrs. knox; "how were you fool enough to get into dealings with him?" the statement of casey's wrongs occupied quite ten minutes, and was generous in detail. his land was bad, ever and always. the grass that was in it was as bare as that you could pick pins in it. he had no pushing land at all for cattle. didn't he buy a heifer at scabawn fair and the praisings she got was beyant all raves, and he had her one month, and kinder company he never had, and she giving seven pints at every meal, and wasn't that the divil's own produce? one month, indeed, was all he had her till she got a dropsy, and the dropsy supported her for a while, and when it left her she faded away. and didn't his wife lose all her hens in one week? "they fell dead on her, like hailstones!" he ceased, and a tear wandered down the channels in his long cheek. "how much do you owe goggin?" asked mrs. knox sharply. what casey owed to goggin had, as might have been expected, but a remote relation to the sum that goggin was now endeavouring to extract from casey. at the heart of the transaction was a shop account, complicated by loans of single pounds (and in my mind's eye i could see, and with my mind's nose i could smell, the dirty crumpled notes). it was further entangled by per-contra accounts of cribs of turf, scores of eggs, and a day's work now and again. i had, from the judgment seat, listened to many such recitals, so, apparently, had mrs. knox, judging by the ease with which she straightened casey's devious narrative at critical points, and shepherded him to his facts, like a cunning old collie steering a sheep to its pen. the conclusion of the matter was that goggin was, on the morrow, to take possession of casey's remaining stock, consisting of three calves, a donkey, and a couple of goats, in liquidation of a debt of £ , and that he, stephen casey, knew that mrs. knox would never be satisfied to see one of her own tenants wronged. "i have no tenants," replied mrs. knox tartly; "the government is your landlord now, and i wish you joy of each other!" "then i wish to god it was yourself we had in it again!" lamented stephen casey; "it was better for us when the gentry was managing their own business. they'd give patience, and they'd have patience." "well, that will do now," said mrs. knox; "go round to the servants' hall and have your tea. i'll see what i can do." there was silence while stephen casey withdrew. as the sound of his hobnailed tread died away the woolly dog advanced very stiffly to the hall door, and, with his eyes fixed on the departing visitor, licked his lips hungrily. "when those rascals in parliament took our land from us," said mrs. knox, flinging a sod of turf on to the huge fire with practised aim, "we thought we should have some peace, now we're both beggared and bothered!" she turned upon me a countenance like that of an ancient and spectacled falcon. "major yeates! you have often offered me a drive in your motor-car. will you take me to killoge to-morrow morning?" it was a brisk and windy morning, with the sharpness of a.m. in it, when mullins, mrs. knox's tirewoman, met me at the hall door of aussolas with her arms full of shawls, and a countenance dark with doom and wrath. she informed me that it was a shame for me to be enticing the mistress out of her bed at this hour of the morning, and that she would get her death out of it. i was repudiating this soft impeachment (which had indeed some flavour of the restoration drama about it), when the companion of my flight appeared. "how would anyone know the minute--" continued mullins, addressing the universe, "that this what's-this-i'll-call-it wouldn't turn into a bog-hole?" she put this conundrum while fiercely swaddling her mistress in cloak upon cloak. i attempted no reply, and mrs. knox, winking both eyes at me over the rim of the topmost shawl, was hoisted into the back of the car; as we glided away i had, at all events, the consolation of knowing that, in the event of an accident, mrs. knox in her cloaks would float from the car as softly and bulkily as a bumble bee. as we ran out of the gates on to the high road i remembered that my passenger's age was variously reckoned at from ninety to a hundred, and thought it well to ask her if fifteen miles an hour would be too fast for pleasure. "you can't go too fast to please me," replied mrs. knox, through the meshes of a shetland shawl. "when i was a girl i rode a fourteen-hand pony to the fourteenth milestone on the cork road in a minute under the hour! i think you should be able to double that!" i replied to this challenge with twenty miles an hour, which, with a head wind and a bad road, i considered to be fast enough for any old lady. as a matter of fact it was too fast for her costume. we had run some eight or nine miles before, looking back, i noticed that a change of some sort had occurred. "oh, the red one blew away long ago!" screamed mrs. knox against the wind; "it doesn't matter, i shall get it back--i'll ask father scanlan to speak about it at mass next sunday. there's a veil gone too--how frantic mullins will be!" a skirl of laughter came from the recesses of the remaining shawls. we were running now on a level road under the lee of a long line of hills; a strip of plantation, gay with the yellows and greens of autumn, clung to a steep slope ahead of us, and, at the top of it, some ragged pines looked like blots against the sky. as we neared it, a faint and long-drawn call came from the height; presently among the tree-trunks we saw hounds, like creatures in a tapestry hunting scene, working up and up through the brown undergrowth. i slackened speed. "'pon my honour, we've hit off the hunt!" exclaimed mrs. knox. as she spoke there was a responsive yelp from a tract of briars in the lower part of the wood; two or three couples jostled downwards to their comrade, and a full chorus, led by the soprano squeals of the hunt terrier, arose and streamed along the wood above the road. i came to a full stop, and, just in front of us, a rabbit emerged very quietly from the fence of the wood, crept along in the ditch, and disappeared in a hole in the bank. the hounds still uttered the classic pæans of the chase; hoofs clattered in a steep lane on the hill-side, and flurry knox charged on to the road a little ahead of us. "forrad, forrad, forrad!" he shouted as he came. "rabbit, rabbit, rabbit!" cackled his grandmother at him in malevolent imitation. i let the car go, and as we flew past him he asked me, sideways out of a very red face, what the devil i was doing there. it was evident that mrs. knox's observation had been accepted in the spirit in which it was offered. "that will do my young gentleman no harm!" said mrs. knox complacently, as we became a speck in the distance. it was about ten o'clock when we ran down a valley between steep hills to killoge cross-roads. the hill-sides were set thick with tree stumps, like the crowded headstones of a cemetery, with coarse grass and briars filling the spaces between them. here and there a slender, orphaned ash sapling, spared because despised, stood among the havoc, and showed with its handful of yellow leaves what the autumn colours might once have been here. a starkly new, cemented public-house, with "j. goggin" on the name board, stood at the fork of the roads. doubtless into it had flowed the blood-money of the wood; it represented the alternative offered to the community by mr. goggin. i slowed up and looked about me. "i suppose this is--or was--killoge wood?" i said to my passenger. mrs. knox was staring through her spectacles at the devastated hill-side. "ichabod, ichabod!" she murmured, and leaned back in her place. a man got up from a heap of stones by the roadside and came slowly towards the car. "well, stephen," began mrs. knox irritably, "what about the cattle? he looks as if he were walking behind his own coffin!" she continued in a loud aside to me. stephen casey removed his hat, and with it indicated a group composed of three calves--and nothing can look as dejected as an ill-fed, under-bred calf--two goats, and a donkey, attended by a boy with a stick, and a couple of cur dogs. "himself and the sheriff's man is after driving them, my lady," replied their proprietor, and proceeded to envelop the name of goggin in a flowing mantle of curses. "there, that will do for the present," said mrs. knox peremptorily, as casey, with tears streaming down his face, paused to catch his wind. "where's goggin?" "the two of them is inside in the shop," answered the miserable casey, still weeping copiously. i drove over to the public-house, thinking that if casey could not put up a better fight than this it would be difficult to do much for him. the door of the pub was already filled by the large and decent figure of mr. goggin, who advanced to meet us, taking off his hat reverentially; i remembered at once his pale and pimpled face, his pink nose, his shabby grey and yellow beard. he had been before me in a matter of selling drink on sunday, and had sailed out of court in stainless triumph, on sworn evidence that he was merely extending hospitality to some friends that had come to make a match for a niece of his own, and were tired after walking the land and putting a price on the cattle. "well, goggin," said mrs. knox, waving towards the hill-side a tiny hand in a mouldy old black kid glove, "you've done a great work here! you've destroyed in six months what it took the colonel and the lord almighty eighty years to make. that's something to be proud of!" goggin, again, and with even deeper reverence, removed his hat, and murmured something about being a poor man. "it was your own grandfather that planted those trees for the colonel," continued mrs. knox, diving, as it were, into an ancient armoury and snatching a rusty weapon from the wall. "that's the case, ma'am," replied mr. goggin solemnly. "the lord have mercy on his soul!" "you'll be wanting mercy on your own soul in the next world, if you meet the colonel there!" said mrs. knox unhesitatingly. "i mightn't have the honour of meeting the colonel there, ma'am!" tittered goggin sycophantically. "you might not indeed," responded mrs. knox, "but you might find your grandfather making up a good fire for you with the logs out of killoge wood!" "ha, ha! that's good, faith!" said a fat voice from the porter-flavoured depths of the pub. i recognised among other half-seen faces the round cheeks and bristling moustache of little m'sweeny, the sheriff's officer, at goggin's elbow. "and what's this i hear about stephen casey?" went on mrs. knox, in shrill and trenchant tones, delivering her real attack now that she had breached the wall. "you lent him five pounds two years ago, and now you're driving all his stock off! what do you call that, i'd thank you to tell me?" in the discussion that followed i could almost have been sorry for goggin, so entirely over-weighted was he by mrs. knox's traditional prestige, by my official position, by knowledge of the unseen audience in the pub, and by the inherent rottenness of his case. nevertheless, the defence put forward by him was a very creditable work of art. the whole affair had its foundation in a foolish philanthropy, the outcome of generous instincts exploited to their utmost, only, indeed, kept within bounds by mr. goggin's own financial embarrassments. these he primarily referred back to the excessive price extorted from him by mrs. knox's agent for the purchase of his land under the act; and secondarily to the bad debts with which stephen casey and other customers had loaded him in their dealings with his little shop. there were moments when i almost had to accept mr. goggin's point of view, so well-ordered and so mildly stated were his facts. but mrs. knox's convictions were beyond and above any possibility of being shaken by mere evidence; she has often said to me that if all justice magistrates were deaf there would be more done. she herself was not in the least deaf, but she knew mr. goggin, which did as well. "fifteen pounds worth of stock to pay a debt that was never more than £ ! what do you call that, major yeates?" she darted the question at me. i had, some little time before, felt my last moment of sympathy with goggin expire, and i replied with considerable heat that, if mrs. knox would forgive my saying so, i called it damned usury. from this point the affaire casey went out swiftly on an ebb tide. it was insinuated by someone, m'sweeny, i think, that an instalment of five pounds might be accepted, and the eyes of goggin turned, tentatively, to mrs. knox. it has always been said of that venerable warrior that if there were a job to be done for a friend she would work her fingers to the bone, but she would never put them in her pocket. i observed that the eye of goggin, having failed in its quest of hers, was concentrating itself upon me. the two walls of a corner seemed to rise mysteriously on either side of me; i suddenly, and without premeditation, found myself promising to be responsible for the five pounds. before the glow of this impulse had time to be succeeded by its too familiar reaction, the broken, yet persistent cry of hounds came to my ear. it advanced swiftly, coming, seemingly, from higher levels, into the desolated spaces that had once been killoge wood. from the inner depths of mrs. knox's wrappings the face of the woolly dog amazingly presented itself; from the companion depths of the public-house an equally unexpected party of _convives_ burst forth and stood at gaze. mrs. knox tried to stand up, was borne down by the sheer weight of rugs and the woolly dog, glared at me for a tense moment, and hissed, "they're coming this way! try to get a view!" before the words had passed her lips someone in the group at the door vociferated, "look at him above! look at him!" i looked "above," but could see nothing. not so the rest of the group. "now! look at him going west the rock! now! he's passing the little holly-tree--he's over the fence----" i bore, as i have so often borne, the exasperation of, as it were, hearing instead of seeing a cinematograph, but i saw no reason why i should submit to the presence of mr. m'sweeny, who had sociably sprung into the motor beside me in order to obtain a better view. "look at him over the wall!" howled the cinematograph. "look at the size he is! isn't he the divil of a sheep!" it was at this moment that i first caught sight of the fox, about fifty yards on the farther side of casey's assortment of live stock and their guardian cur dogs, gliding over the wall like a cat, and slipping away up the road. at this point mr. m'sweeny, finding the disadvantage of his want of stature, bounded on to the seat beside me and uttered a long yell. "hi! at him! tiger, good dog! hi! rosy!" i cannot now say whether i smote m'sweeny in the legs before he jumped, or if i merely accelerated the act; he appeared to be running before he touched the ground, and he probably took it as a send-off, administered in irrepressible fellow-feeling. tiger and rosy were already laying themselves out down the road, and their yelps streamed back from them like the sparks from an engine. the party at the door was suddenly in full flight after them with a swiftness and unanimity that again recalled the cinematograph. they caught away with them stephen casey and his animals; and i had an enlivening glimpse of the donkey at the top of the hunt, braying as it went; of goggin trying in vain to stem the companion flight of the calves. the bend of the road hid them all from us; the thumping of heavy feet, the sobbing bray of the donkey, passed rapidly into remoteness, and mrs. knox and i were left with nothing remaining to us of the situation save the well-defined footmarks of m'sweeny on the seat beside me (indelible, as i afterwards discovered). "get on, major yeates!" screamed mrs. knox, above the barking of the woolly dog. "we must see it out!" i started the car, and just before we in our turn rounded the corner i looked back, and saw the leading hounds coming down the hill-side. i slackened and saw them drop into the road and there remain, mystified, no doubt, by the astonishing variety of scents, from goat to gombeen man, that presented themselves. of flurry and his followers there was no sign. "get on, get on," reiterated mrs. knox, divining, no doubt, my feelings; "we shall do no more harm than the rest!" i gave the car her head, knowing that whatever i did flurry would have my blood. in less than two minutes we were all but into stephen casey's goats, who, being yoked together in body but not in spirit, required the full width of the road for their argument. we passed stephen casey and the gombeen man cornering the disputed calves in the sympathetic accord that such an operation demands. as we neared m'sweeny, who brought up the rear, the body of the hunt, still headed by the donkey, swept into a field on the left of the road. the fox, as might have been expected, had passed from the ken of the cur dogs, and these, intoxicated by the incitements of their owners, now flung themselves, with the adaptability of their kind, into the pursuit of the donkey. i stopped and looked back. the leading hounds were galloping behind the car; i recognised at their heads rattler and roman, the puppies i had walked, and for a moment was touched by this mark of affection. the gratification was brief. they passed me without a glance, and with anticipatory cries of joy flung themselves into the field and joined in the chase of the donkey. "they'll kill him!" exclaimed mrs. knox, restraining with difficulty the woolly dog; "what good is flurry that he can't keep with his hounds!" galloping hoofs on the road behind us clattered a reply, accompanied by what i can only describe as imprecations on the horn, and flurry hurtled by and swung his horse into the field over a low bank with all the dramatic fury of the hero rushing to the rescue of the leading lady. it recalled the incidents that in the palmy days of the hippodrome gloriously ended in a plunge into deep water, amid a salvo of firearms. in flurry's wake came the rest of the pack, and with them dr. jerome hickey. "a great morning's cubbing!" he called out, snatching off his old velvet cap. "thirty minutes with an old fox, and now a nice burst with a jackass!" for the next three or four minutes shrieks, like nothing so much as forked lightning, lacerated the air, as the guilty hounds began to receive that which was their due. it seemed possible that my turn would come next; i looked about to see what the chances were of turning the car and withdrawing as soon as might be, and decided to move on down the road in search of facilities. we had proceeded perhaps a hundred yards without improving the situation, when my eye was caught by something moving swiftly through the furze-bushes that clothed a little hill on the right of the road. it was brownish red, it slid into the deep furze that crested the hill, and was gone. here was a heaven-sent peace-offering! "tally-ho!" i bellowed, rising in my place and waving my cap high in air. "tally-ho, over!" the forked lightning ceased. "what way is he?" came an answering bellow from flurry. "this way, over the hill!" the hounds were already coming to the holloa. i achieved some very creditable falsetto screeches; i leaped from the car, and cheered and capped them over the fence; i shouted precise directions to the master and whip, who were now, with the clamours proper to their calling, steeplechasing into the road and out of it again, followed by two or three of the field, including the new district inspector of the royal irish constabulary (recently come from meath with a high reputation as a goer). they scrambled and struggled up the hill-side, through rocks and furze (in connection with which i heard the new d.i. making some strenuous comments to his meath hunter), the hounds streamed and screamed over the ridge of the hill, the riders shoved their puffing horses after them, topped it, and dropped behind it. the furzy skyline and the pleasant blue and white sky above it remained serene and silent. i returned to the car, and my passenger, who, as i now realised, had remained very still during these excitements. "that was a bit of luck!" i said happily, inflated by the sense of personal merit that is the portion of one who has viewed a fox away. as i spoke i became aware of something fixed in mrs. knox's expression, something rigid, as though she were repressing emotion; a fear flashed through my mind that she was overtired, and that the cry of the hounds had brought back to her the days when she too had known what a first burst away with a fox out of killoge wood had felt like. "major yeates," she said sepulchrally, and yet with some inward thrill in her voice, "i think the sooner we start for home the better." i could not turn the car, but, rather than lose time, i ran it backwards towards the cross-roads; it was a branch of the art in which i had not become proficient, and as, with my head over my shoulder, i dodged the ditches, i found myself continually encountering mrs. knox's eye, and was startled by something in it that was both jubilant and compassionate. i also surprised her in the act of wiping her eyes. i wondered if she were becoming hysterical, and yearned for mullins as the policeman (no doubt) yearns for the mother of the lost child. on the road near the public-house we came upon m'sweeny, goggin, and casey, obviously awaiting us. i stopped the car, not without reluctance. "that will be all right, goggin," said mrs. knox airily; "we're in a hurry to get home now." the three protagonists looked at one another dubiously, and simultaneously cleared their throats. "i beg your pardon, mrs. knox, ma'am," began mr. goggin very delicately. "mr. m'sweeny would be thankful to speak a word to you before you go." "well, let him speak and be quick about it," returned mrs. knox, who seemed to have recovered remarkably from her moment of emotion. "you must excuse me, major yeates," said mr. m'sweeny, chivalrously selecting me as the person to whom to present the business end of the transaction, "but i'm afraid i must trouble you about that little matter of the five pounds that we arranged a while ago--i couldn't go back without it was settled----" mr. goggin coughed, and looked at his boots; stephen casey sighed heavily. at the same moment i thought i heard the horn. "i'm afraid i haven't got it with me," i said, pulling out a handful of silver and a half-sovereign. "i suppose eighteen and sixpence wouldn't be any use to you?" mr. m'sweeny smiled deprecatingly, as at a passing jest, and again i heard the horn, several harsh and prolonged notes. mrs. knox leaned forward and poked me in the back with some violence. "goggin will lend it to you," she said, with the splendid simplicity of a great mind. it must be recorded of goggin that he accepted this singular inversion of the position like a gentleman. we moved on to his house and he went in with an excellent show of alacrity to fetch the money wherewith i was to stop his own mouth. it was while we were waiting that a small wet collie, reddish-brown in colour, came flying across the road, and darted in at the open door of the house. its tongue was hanging out, it was panting heavily. "i seen her going over the hill, and the hounds after her; i thought she wouldn't go three sthretches before they'd have her cot," said m'sweeny pleasantly. "but i declare she gave them a nice chase. when she seen the doctor beating the hounds, that's the time she ran." i turned feebly in my place and looked at mrs. knox. "it was a very natural mistake," she said, again wiping her eyes; "i myself was taken in for a moment--but only for a moment!" she added, with abominable glee. i gave her but one glance, laden with reproach, and turned to m'sweeny. "you'll get the five pounds from goggin," i said, starting the car. as we ran out of killoge, at something near thirty miles an hour, i heard scald-crow laughter behind me in the shawls. [illustration: "i heard scald-crow laughter behind me in the shawls."] iii the friend of her youth it has come to this with me, i am not the country-house visitor that i once was. it is a sign of age, i suppose, and of growing unamiability; so, at any rate, my wife tells me. for my part, i think it indicates a power of discriminating between the things that are good enough, and the infinitely more numerous things that are the reverse. "do you mean to say this isn't good enough?" said philippa, putting down the novel that, at a.m., she was shamelessly reading, and indicating our surroundings with a swing of her open parasol. it was a perfect morning in august. she and i were seated in incredible leisure, in comfortable basket chairs, on a space of sward that sank in pleasant curves to the verge of the summer sea. we looked across three miles of burnished water to the castle manus hills, that showed mistily through grey veils of heat; in the middle distance a -ton cutter yacht drowsed at anchor; at the end of the sward a strand, theatrical in the perfection of its pale sand and dark rocks, laid itself out to attract the bather. "i think it is very good," i replied, "but it won't last. at any minute old derryclare will come and compel me to go out trawling, or mending nets, or cutting up bait, or mucking out the dinghey----" "you may be thankful if he lets you off with that!" said philippa, flitting from her first position and taking up one in advance of mine. following the direction of her eyes, i perceived, as it were at the back of the stage, two mysterious, shrouded figures pursuing a swift course towards the house through a shrubbery of immense hydrangea bushes. their heads resembled monster black door-handles, round their shoulders hung flounces of black muslin; in gauntleted hands they bore trays loaded with "sections" of honey; even at a distance of fifty yards we could see their attendant _cortège_ of indignant bees. "taken thirty pounds this morning!" shouted the leading door-handle, speeding towards the house. "splendid heather honey!" "you ought to show some interest," said my wife malignly. "go in and look at it. he's your host!" "not if he were all the hosts of midian!" i said, but i felt shaken. i rose from my chair. "i'm going to the motor-house," i said firmly. "very well, i shall bathe," replied philippa. "i suppose you are aware that your old friend, mr. chichester, is at present in possession of the bathing cove," i returned, "and it might be as well to ascertain the opinion of your hostess on the subject of mixed bathing." "did you observe that lord derryclare was wearing your new motor-gloves?" said philippa as i moved away. i magnanimously left the last word with her. the derryclares were in the habit of hurling themselves, at intervals, out of civilisation, and into the wilderness, with much the same zest with which those who live in the wilderness hurl themselves into civilisation. in the wilderness, twenty miles from a railway station, they had built them a nest, and there led that variety of the simple life that is founded on good servants, old clothes, and a total indifference to weather. wandering friends on motor tours swooped occasionally out of space; married daughters, with intervals between visits to be filled in, arrived without warning, towing reluctant husbands (who had been there before). lost men, implicated with royal commissions and congested districts, were washed in at intervals; lady derryclare said she never asked anyone; people came. it is true that she had asked us, but the invitation had been given on our wedding-day, and had been put away with our duplicate wedding presents; we had now disinterred it, because i had bought a motor, and was still in the stage of enthusiasm when the amateur driver will beat up visits for his wife to pay. i do not know how chichester got there; he, like lady derryclare, dated from the benighted period before philippa knew me, and i may admit that, in common with most husbands, i am not attracted by the male friends of my wife's youth. if chichester had been the type she fancied, was i merely a super-chichester? chichester was an elderly young man, worn smooth by much visiting in country houses, and thoroughly competent in the avocations proper to his career. he knew the best "stands" at half the shoots in ireland, and could tell to half a crown the value set upon each by the keeper; if you gave him a map he could put a pudgy finger upon the good cooks as promptly as an archbishop upon his cathedral towns; he played a useful and remunerative game of bridge; to see his eye, critical, yet alight with healthful voracity, travelling down the array of dishes on the side-table at breakfast, and arranging unhesitatingly the order in which they were to be attacked, was a lesson to the heedless who blunt the fine edge of appetite with porridge. he faced me at lunch, plump and pink and shining after his bathe; he was clean-shaved (the only reliable remedy for a greying moustache, as i did not fail to point out to philippa); it increased his resemblance to a well-fed and _passé_ schoolboy. old derryclare, whose foible it was to believe that he never had any luncheon, was standing at the sideboard, devouring informally a slice of bread and honey. one of his eyes was bunged up by bee-stings, and the end of his large nose shone red from the same cause. "bill," he said, addressing his eldest son, "don't you forget to take those sections on board this afternoon." "no fear!" responded bill, helping himself to a beaker of barley-water with hands that bore indelible traces of tar and motor grease. bill was a vigorous youth, of the type that i have heard my friend slipper describe as "a hardy young splinter"; he was supposed to be preparing for a diplomatic career, and in the meantime was apparently qualifying for the engine-room of a tramp steamer (of which, it may be added, his father would have made a most admirable skipper). "great stuff, honey, with a rice-pudding," went on bill. "mrs. yeates, do you know i can make a topping rice-pudding?" i noticed that chichester, who was seated next to philippa, suddenly ceased to chew. "i can do you a very high-class omelette, too," continued bill, bashing a brutal spoon into the fragile elegance of something that looked as if it were made of snow and spun glass. "i'm not so certain about my mutton-chops and beefsteak, but i've had the knives sharpened, anyhow!" chichester turned his head away, as from a jest too clownish to be worthy of attention. his cheek was large, and had a tender, beefy flush in it. "in my house," he said to philippa, "i never allow the knives to be sharpened. if meat requires a sharp knife it is not fit to eat." "no, of course not!" replied philippa, with nauseating hypocrisy. "the principle on which my wife buys meat," i said to the table at large, "is to say to the butcher, 'i want the best meat in your shop; but don't show it to me!'" "mrs. yeates is quite right," said chichester seriously; "you should be able to trust your butcher." the door flew open, and lady derryclare strode in, wrestling as she came with the strings of a painting apron, whose office had been no sinecure. she was tall and grey-haired, and was just sufficiently engrossed in her own pursuits to be an attractive hostess. "it was perfectly lovely out there on the _sheila_," she said, handing the apron to the butler, who removed it from the room with respectful disapproval. "if only she hadn't swung with the tide! i found my sketch had more and more in it every moment--turning into a panorama, in fact! yachts would be perfect if they had long solid legs and stood on concrete." i said that i thought a small island would do as well. lady derryclare disputed this, and argued that an island would involve a garden, whereas the charm of a yacht was that one hideous bunch of flowers on the cabin table was all that was expected of it, and that kind people ashore always gave it vegetables. i said that these things did not concern me, as i usually neither opened my eyes or touched food while yachting. i said this very firmly, being not without fear that i might yet find myself hustled into becoming one of the party that was to go aboard the _sheila_ that very night. they were to start on the top of the tide, that is to say, at a.m. the following morning, to sail round the coast to a bay some thirty miles away, renowned for its pollack-fishing, and there to fish. pollack-fishing, as a sport, does not appeal to me; according to my experience, it consists in hauling up coarse fish out of deep water by means of a hook baited with red flannel. it might appear poor-spirited, even effeminate, but nothing short of a press-gang should get me on board the _sheila_ that night. "every expedition requires its martyr," said lady derryclare, helping herself to some of the best cold salmon it has been my lot to encounter, "it makes it so much pleasanter for the others; some one they can despise and say funny things about." "the situation may produce its martyr," i said. lady derryclare glanced quickly at me, and then at chichester, who was now expounding to philippa the method, peculiar to himself, by which he secured mountain mutton of the essential age. at nine-thirty that night i sat with my hostess and my wife, engaged in a domestic game of poker-patience. shaded lights and a softly burning turf fire shed a mellow radiance; an exquisite completeness was added by a silken rustle of misty rain against the south window. "do you think they'll start in this weather?" said philippa sympathetically. "seventy-five, and one full house, ten, that's eighty-five," said lady derryclare abstractedly. "start? you may be quite sure they'll start! then we three shall have an empty house. that ought to count at least twenty!" lady derryclare was far too good a hostess not to appreciate the charms of solitude; that philippa and i should be looked upon as solitude was soothing to the heart of the guest, the heart that, however good the hostess, inevitably conceals some measure of apprehension. "has mr. chichester been on board the _sheila_?" i enquired, with elaborate unconcern. "_never!_" said lady derryclare melodramatically. "i believe he has done some yachting?" i continued. "a five-hundred-ton steam yacht to the west indies!" replied lady derryclare. "bathrooms and a _chef_----" there was a thumping of heavy feet outside the door, and the yacht party entered, headed by lord derryclare with a lighted lantern. they were clad in oilskins and sou'-westers; bill had a string of onions in one hand and a sponge-bag in the other; chichester carried a large gold-mounted umbrella. "you look as if you were acting a charade," said lady derryclare, shuffling the cards for the next game, the game that would take place when the pleasure-seekers had gone forth into the rain. "the word is fare-well, i understand?" it occurred to me that to fare well was the last thing that chichester was likely to do; and, furthermore, that the same thing had occurred to him. "'fare thee well, my own mary anne!'" sang lord derryclare, in a voice like a bassoon, and much out of tune. "it's a dirty night, but the glass is rising, and" (here he relapsed again into song) "'we are bound for the sea, mary anne! we are bound for the sea!'" "then we're to meet you on friday?" said philippa, addressing herself to chichester in palpable and egregious consolation. "dear lady," replied chichester tartly, "in the south of ireland it is quite absurd to make plans. one is the plaything of the climate!" "all aboard," said lord derryclare, with a swing of his lantern. as they left the room the eye of bill met mine, not without understanding. "now d's perfectly happy," remarked lady derryclare, sorting her suits; "but i'm not quite so sure about the super-cargo." the game progressed pleasantly, and we heard the rain enwrap the house softly, as with a mantle. the next three days were spent in inglorious peace, not to say sloth. on one of them, which was wet, i cleared off outstanding letters and browsed among new books and innumerable magazines: on the others, which were fine, i ran the ladies in the car back into the hills, and pottered after grouse with a venerable red setter, while lady derryclare painted, and philippa made tea. when not otherwise employed, i thanked heaven that i was not on board the _sheila_. on thursday night came a telegram from the yacht: "ronnie's flotilla in; luncheon party to-morrow; come early.--bill." at nine o'clock the next morning we were on the road; there was a light northerly breeze, enough to dry the roads and to clear the sky of all save a few silver feathers of cloud; the heather was in bloom on the hills, the bogs were bronze and green, the mountains behind them were as blue as grapes; best of all, the car was running like a saint, floating up the minor hills, pounding unfalteringly up the big ones. she and i were still in the honeymoon stage, and her most normal virtues were to me miraculous; even my two ladies, though, like their sex, grossly utilitarian, and incapable, as i did not fail to assure them, of appreciating the poesy of mechanism, were complimentary. in that part of ireland in which my lot is cast signposts do not exist. the residents, very reasonably, consider them to be superfluous, even ridiculous, in view of the fact that every one knows the way, and as for strangers, "haven't they tongues in their heads as well as another?" it all tends to conversation and an increased knowledge of human nature. therefore it was that when we had descended from the hills, and found ourselves near the head of dunerris bay, at a junction of three roads, any one of which might have been ours, our only course was to pause there and await enlightenment. it came, plentifully, borne by an outside car, and bestowed by no less than four beautifully dressed young ladies. i alighted and approached the outside car, and was instructed by the driver as to the route, an intricate one, to eyries harbour. the young ladies offered supplementary suggestions; they were mysteriously acquainted with the fact that the _sheila_ was our destination, and were also authorities on the movements of that section of the british navy that was known to the family of sub-lieutenant the hon. ronald cunningham as "ronnie's flotilla." "we met the yacht gentlemen at tea on mr. cunningham's torpedo-boat yesterday afternoon," volunteered the prettiest of the young ladies, with a droop of her eyelashes. the party then laughed, and looked at each other, as those do who have together heard the chimes at midnight. "why, we're going to lunch with them to-day at the hotel at ecclestown! and with you, too!" broke in another, with a sudden squeal of laughter. i said that the prospect left nothing to be desired. "mr. chichester invited us yesterday!" put in a third from the other side of the car. "i don't think it's pollack he'll order for luncheon," said the fourth of the party from under the driver's elbow, a flapper, with a slow, hoarse voice, and a heavy cold in her head. "shut up, katty, you brat!" said the eldest, with lightning utterance. the quartette again dissolved into laughter. i said "au revoir," and withdrew to report progress to my deeply interested passengers. as the outside car disappeared from view at a corner, the flapper waved a large pocket-handkerchief to me. "you seem to have done wonderfully well in the time," said lady derryclare kindly. for half an hour or more we ran west along the southern shore of the great bay; ecclestown, where chichester's luncheon-party was to take place, was faintly visible on the further side. so sparkling was the sea, so benign the breeze, that even i looked forward without anxiety, almost with enjoyment, to the sail across the bay. there is a bland and peaceful suggestion about the word village that is wholly inapplicable to the village of eyries, a collection of dismal, slated cabins, grouped round a public-house, like a company of shabby little hens round a shabby and bedraggled cock. the road that had conveyed us to this place of entertainment committed suicide on a weedy beach below, its last moments much embittered by chaotic heaps of timber, stones, and gravel. a paternal board was building a pier, and "mountains of gold was flying into it, but the divil a much would ever come out of it." this i was told by the publican as i bestowed the car in an outhouse in his yard, wherein, he assured me, "neither chick nor child would find it." the _sheila_ was anchored near the mouth of the harbour; there was a cheerful air of expectancy about her, and her big mainsail was hoisted; her punt, propelled by bill, was already tripping towards us over the little waves; the air was salt, and clean, and appetising. bill appeared to be in robust health; he had taken on a good many extra tones of sunburn, and it was difficult, on a cursory inspection, to decide where his neck ended and his brown flannel shirt began. "----oh, a topping time!" he said, as we moved out over the green, clear water, through which glimmered to us the broken pots and pans of eyries that lay below. "any amount of fish going. we've had to give away no end." "i should like to hear what you've been giving mr. chichester to eat?" said lady derryclare suavely. "well, there was the leg of mutton that we took with us; he ate that pretty well; and a sort of a hash next day, fair to middling." "and after that?" said his mother, with polite interest. "well, after that," said bill, leaning his elbows on his sculls and ticking off the items on his fingers, "we had boiled pollack, and fried pollack, and pollack _réchauffé aux fines herbes_--onions, you know----" bill broke off artistically, and i recalled to myself a saying of an american sage, "those that go down to the sea in ships see the works of the lord, but those that go down to the sea in cutters see hell." "he went ashore yesterday," said bill, resuming his narrative and the sculls, "and came aboard with a pig's face and a pot of jam that he got at the pub, and i say!--that pig's face!--phew! my aunt!" "'look in my face; my name is might-have-been,'" quoted lady derryclare. philippa shuddered aloud. "but he's going to come level to-day," went on bill; "he's standing us all lunch at the ecclestown hotel, ronnie's skipper and all. he spent a good half-hour writing out a menu, and ronnie took it over last night. we had tea on board ronnie's ship, you know." we said we knew all about the tea-party and the guests. "oh, you do, do you?" said bill; "then you know a good deal! chichester can tell you a bit more about the dark one if you like to ask him!" "he seems to have outgrown his fancy for fair people," i said. philippa put her nose in the air. "he's gorgeously dressed for the occasion," continued bill. "more than you are!" said his mother. "oh, my one don't care. no more does ronnie's. what they enjoyed was the engine-room." "it seems to me," said lady derryclare to philippa, "that we are rather superfluous to this entertainment." chichester stood at the gangway and helped the ladies on to the narrow, hog-backed deck of the _sheila_. he was indeed beautifully dressed, but to the critical eye it seemed that the spotless grey flannel suit hung a shade easier, and that the line of his cheek was less freshly rounded. his nose had warmed to a healthful scarlet, but his eye was cold, and distinctly bleak. he was silent, not, it was obvious to me, because he had nothing to say, but because he might have more to say than would be convenient. in all senses save the literal one he suggested the simple phrase, "fed up." i felt for him. as i saw the grim deck-bosses on which we might have to sit, and the dark mouth of the cabin in which we might have to eat, and tripped over a rope, and grasped at the boom, which yielded instead of supporting me, i thought with a lover's ardour of the superiority--whether as means of progression or as toy--of the little car, tucked away in the eyries publican's back-yard, where neither chick nor child would find her. "you ought to have come with us, yeates," said derryclare, emerging from the companion-hatch with a fishing-line in his hand. "great sport! we got a hundred and fifty yesterday--beats trout-fishing! doesn't it, chichester?" chichester smiled sarcastically and looked at his watch. "quite right," said his lordship, twisting his huge hairy paw, and consulting the nickel time-keeper on his wrist. "time to be off--mustn't keep our young ladies waiting. we'll slip across in no time with this nice breeze. regular ladies' day. now then, bill! get that fores'l on her--we'll up anchor and be off!" there are few places in creation where the onlooker can find himself more painfully and perpetually _de trop_ than on the deck of a small yacht. i followed the ladies to the saloon. chichester remained on deck. as i carefully descended the companion-ladder i saw him looking again at his watch, and from it across the bay to the hazy white specks, some four miles away, in one of which assiduous waiters were even now, it might be, setting forth the repast that was to indemnify him for three days of pollack. "p'ff; i wonder if they ever open the windows," said lady derryclare, fitting herself skilfully into the revolving chair at the end of the cabin table. "do sit down--these starting operations are always lengthy." i took my seat, that is to say, i began to sit down in the air, well outside the flap of the table, and gradually inserted myself underneath it. the bunch of flowers, foretold by lady derryclare, confronted us, packed suffocatingly into its vase, and even the least astute of the party (i allude to myself) was able unhesitatingly to place it as an attention from the fair ones of the outside car. behind my shoulders, a species of trough filled the interval between the back of the seat and the sloping side of the yacht; in it lay old tweed caps, old sixpenny magazines, field-glasses, cans of tobacco, and a well-worn box of "patience" cards. above and behind it a rack made of netting was darkly charged with signal-flags, fishing-rods, and minor offal. "think of them all, smoking here on a wet night," said lady derryclare with abhorrence; "with the windows shut and no shade on the lamp! let nothing tempt any of you to open the pantry door; we might see the pig's face. unfortunate george chichester!" "i shouldn't pity him too much," said i. "i expect he wouldn't take five pounds for his appetite this moment!" the rhythmic creak of the windlass told that the anchor was coming up. it continued for some moments, and then stopped abruptly. "now then, all together!" said lord derryclare's voice. a pause, punctuated by heavy grunts of effort--then bill's voice. "what the blazes is holding it? come on, chichester, and put your back into it!" chichester's back, ample as it would seem, had no appreciable effect on the situation. "you ought to go and help them, sinclair," said my wife, with that readiness to offer a vicarious sacrifice that is so characteristic of wives. i said i would wait till i was asked. i had not to wait long. i took my turn at the warm handle-bar of the windlass, and grunted and strove as strenuously as my predecessors. the sun poured down in undesired geniality, the mainsail lurched and flapped; the boom tugged at its tether; the water jabbered and gurgled past the bows. "i think we're in the _consommé_!" remarked bill, putting his hands in his pockets. "here," said lord derryclare, with a very red face; "confound her! we'll sail her off it!" chichester sat down in a deck-chair as remote as possible from his kind, and once again consulted his watch. bill took the tiller; ropes were hauled, slacked, made fast; the boom awoke to devastating life; the _sheila_ swung, tilted over to the breeze, and made a rush for freedom. the rush ended in a jerk, the anchor remained immovable, and the process was repeated in the opposite direction, with a vigour that restored chichester abruptly to the bosom of society--in point of fact, my bosom. he said nothing, or at least nothing to signify, as i assisted him to rise, but i felt as if i were handling a live shell. during the succeeding quarter of an hour the _sheila_, so it seemed to my untutored mind, continued to sail in tangents towards all the points of the compass, and at the end of each tangent was brought up with an uncompromising negative from the anchor. by that time my invariable yacht-headache was established, and all the other men in the ship were advancing, at a varying rate of progress, into a frame of mind that precluded human intercourse, and was entirely removed from perceiving any humour in the situation. through all these affairs the sound of conversation ascended steadily through the main-hatch. lady derryclare and my wife were playing patience in the cabin, and were at the same time discussing intricate matters in connection with district nurses, with that strange power of doing one thing and talking about another that i have often noticed in women. it was at about this period that the small, rat-like head of bill's kitchen-maid, jimmy, appeared at the fore-hatch (accompanied by a reek of such potency that i immediately assigned it to the pig's face), and made the suggestion about the congested diver. that the diver, however congested, was a public official, engaged at the moment in laying the foundations of the eyries pier, did not, this being ireland, complicate the situation. the punt, with bill, hot and taciturn, in the stern, sprang forth on her errand, smashing and bouncing through the sharpened edges of the little waves. as i faced that dainty and appetising breeze, i felt the first pang of the same hunger that was, i knew, already gnawing chichester like a wolf. "we must have fouled some old moorings," said derryclare, coming up from the cabin, with a large slice of bread and honey in his hand, and an equanimity somewhat restored by a working solution of the problem. "damn nuisance, but it can't be helped. better get something to eat, chichester; you won't get to ecclestown before three o'clock at the best." "no, thank you," said chichester, without raising his eyes from the four-day-old paper that he was affecting to read. i strolled discreetly away, and again looked down through the skylight into the cabin. the ladies were no longer there, and, in defiance of all nautical regulations, a spirit-lamp with a kettle upon it was burning on the table, a sufficient indication to a person of my experience that philippa and lady derryclare had abandoned hope of the ecclestown lunch and were making tea. the prospect of something to eat, of any description, was not unpleasing; in the meantime i took the field-glasses, and went forward to follow, pessimistically, the progress of the punt in its search for the diver. there was no one on the pier. bill landed, went up the beach, and was lost to sight in the yard of the public-house. "it must be he's at his dinner," said jimmy at my elbow, descrying these movements with a vision that appeared to be equal to mine plus the field-glasses. there was an interval, during which i transferred my attention to ecclestown; its white hotel basked in sunshine, settled and balmy, as of the land of beulah. its comfortable aspect suggested roast chicken, tingling glasses of beer, even of champagne. a torpedo-boat, with a thread of smoke coming quietly from its foremost funnel, lay in front of the hotel. it seemed as though it were enjoying an after-luncheon cigarette. "they're coming out now!" said jimmy, with excitement; "it must be they were within in the house looking at the motor." i turned the field-glasses on eyries; a fair proportion of its population was emerging from the yard of the public-house, and the length to which their scientific interest had carried them formed a pleasing subject for meditation. "there's the ha'past-one mail-car coming in," said jimmy; "it's likely he'll wait for the letters now." the mirage of the ecclestown lunch here melted away, as far as i was concerned, and with a resignation perfected in many petty sessions courts, i turned my appetite to humbler issues. to those who have breakfasted at eight, and have motored over thirty miles of moorland, tea and sardines at two o'clock are a mere affair of outposts, that leave the heart of the position untouched. yet a temporary glow of achievement may be attained by their means, and the news brought back by bill, coupled with a fresh loaf, that the diver was coming at once, flattered the hope that the game was still alive. bill had also brought a telegram for chichester. "who has the nerve to tell mr. chichester that there's something to eat here?" said lady derryclare, minutely examining the butter. "philippa is obviously indicated," i said malignly. "she is the friend of his youth!" "you're all odious," said philippa, sliding from beneath the flap of the table with the light of the lion-tamer in her eye. what transpired between her and the lion we shall never know. she returned almost immediately, with a heightened colour, and the irrelevant information that the diver had come on board. the news had the lifting power of a high explosive. we burst from the cabin and went on deck as one man, with the exception of my wife, who, with a forethought that did her credit, turned back to improvise a cosy for the teapot. the diver was a large person, of few words, with a lowering brow and a heavy moustache. he did not minimise the greatness of his condescension in coming aboard the yacht; he listened gloomily to the explanations of lord derryclare. at the conclusion of the narrative he moved in silence to the bows and surveyed the situation. his boat, containing the apparatus of his trade, was alongside; a stalwart underling, clad in a brown jersey, sat in the bows; in the stern was enthroned the helmet, goggling upon us like a decapitated motorist. it imparted a thrill that i had not experienced since i read jules verne at school. "here, jeremiah," said the diver. the satellite came on deck with the single sinuous movement of a salmon. the diver motioned him to the windlass. "we'll take a turn at this first," he said. they took each a handle, they bent to their task, and the anchor rose at their summons like a hot knife out of butter. every man present, with the exception of the diver and the satellite, made the simple declaration that he was damned, and it was in the period of paralysis following on this that a fresh ingredient was added to the situation. a giant voice filled the air, and in a windy bellow came the words: "nice lot you are!" we faced about and saw "ronnie's torpedo-boat" executing a sweeping curve in the mouth of eyries harbour. "couldn't wait any longer!" proceeded the voice of the megaphone. "we've got to pick up the others outside. thanks awfully for luncheon! top-hole!" t.b. no. completed the curve and headed for the open sea with a white mane of water rising above her bows. there was something else white fluttering at the stern. i put up the field-glasses, and with their aid perceived upon the deck a party of four ladies, one of whom was waving a large pocket handkerchief. the glasses were here taken out of my hand by chichester, but not before i had identified the flapper. what chichester said of ronnie was heard only by me, and possibly by jimmy, who did not count. i think it may have saved his life, being akin to opening a vein. that i was the sole recipient of these confidences was perhaps due to the fact that the _sheila_, so swiftly and amazingly untethered, here began to fall away to leeward, with all the wilful helplessness of her kind, and instant and general confusion was the result. there were a few moments during which ropes, spars, and human beings pursued me wherever i went. then i heard lord derryclare's voice--"let go that anchor again!" the sliding rattle of the chain followed, the anchor plunged; the _status quo_ was re-established. chichester went ashore with the diver to catch the outgoing mail-car. the telegram that had arrived with bill was brought into action flagrantly, and was as flagrantly accepted. (it was found, subsequently, on his cabin floor, and was to the effect that the cartridges had been forwarded as directed.) the farewells were made, the parting regrets very creditably accomplished, and we stood on the deck and saw him go, with his suit-case, his rods, his gun-case, heaped imposingly in the bow, his rug, and his coats, the greater and the less, piled beside him in the stern. the wind had freshened; the diver and jeremiah drove the boat into it with a will, and the heavy oars struck spray off the crests of the waves. we saw chichester draw forth the greater coat, and stand up and put it on. the boat lurched, and he sat down abruptly, only to start to his feet again as if he had been stung by a wasp. he thrust his hand into the pocket, and philippa clutched my arm. "could it have been into the pocket of his coat that i put the teapot----?" she breathed. iv harrington's breakfast was over; philippa was feeding the dogs. philippa's cousin, captain andrew larpent, r.e., was looking out of the window with that air of unemployment that touches the conscience of a host like a spur. andrew did not smoke, a serious matter in a male guest, which means that there are, for him, no moments of lethargy, and that, when he idles, his idleness stands stark in the foreground against a clear sky, a reproach and a menace to his entertainers. it was a cold day about the middle of september, and there was an unrest among the trees that commemorated a night of storm; the gravel was wet, the lawn-tennis ground was strewn with sycamore leaves. "i suppose you'll say i'm drunk," said andrew, "but the fact remains that i see two natives coming up the drive." in the green tunnel that was the avenue at shreelane were two dark figures; both were dressed in frock-coats, of which the tails fluttered meagrely in the wind; their faces were black; with the half-hearted blackness of a leg in a black silk stocking; one of them wore a tall hat. "this is what comes of leaving calcutta without paying your bills," i suggested; "or perhaps it's a missionary deputation----" the natives advanced into the middle distance. "it's the sweep!" exclaimed philippa. "it's my beloved cantillon!" she flung open the window. "oh, cantillon!" she cried, invoking the gentleman in the top-hat as if he were an idol, "i've been longing to see you!" the leading native halted beneath the window and curtseyed. "i partly guessed it, my lady!" he replied modestly, and curtseyed again. "then why didn't you come before?" screamed philippa, suppressing with difficulty the indignation of the dogs. "i had the toothache, my lady, and a howlt in my poll," returned the sweep, in dignified narrative. "i may say my hands was crackin' with the stren'th of pain, and these four days back there was the rumour of passpiration all over me, with respex to ye----" "i'll see you in the kitchen," said philippa, shutting the window abruptly. "my poor friends," she continued, "this means a cold luncheon for you, and a still colder reception for me from mrs. cadogan, but if i let cantillon escape me now, i may never see him again--which is unthinkable!" i presume that white is the complimentary colour of a sweep. in half an hour after the arrival of mr. cantillon the sitting-rooms were snowed over with sheets, covering alike floor and furniture, while he and his disciple moved from room to room on tiptoe, with ostentatious humility, leaving a round black spoor upon the snow. my writing-table was inaccessible, so also was the piano, which could usually be trusted to keep andrew quiet for an hour of the morning. perhaps it would be more accurate to say it kept him occupied. captain larpent had not been many years in the service of his country, yet it was already told of him that "from birr to bareilly," undeterred by hardships, his intrepid piano had accompanied him, and that house-rents fell to zero within a half-mile radius of his vicinity. daily the walls of shreelane shook to the thunder of his practising; nightly his duets with my wife roared like a torrent over my sleeping head. sometimes, also, he sang, chiefly in german (a language i do not understand), and with what seemed to me superfluous energy. but this, i am told, means "temperament." haunting as a waltz refrain the flavour of soot stole through the menu at dinner; it was whispered in the soup, it was muttered in the savoury, and in the coffee it abandoned subterfuge and shouted down all opposition. next morning, at breakfast, philippa asked if the car wanted exercise, because it seemed to her a day marked out by providence for calling on the chicken farmers. we might start early, take sandwiches, show andrew something of the country--the programme was impulsively sketched in, but none the less i divined that an indignant household had demanded a day of atonement in which to obliterate the memory of the sweep. it was, as well as i remember, in the preceding spring that the chicken farmers had come before the swallow dared, and had taken--in addition to the winds of march--a small farm about midway in the wilderness between us and the derryclares. they were two young women who had recently been commended to our special attention by lady derryclare; they were, she said, pioneers, and were going to make their fortunes, and would incidentally set an example to the district. philippa had met them on the derryclares' yacht. "one of them is very pretty," she explained to andrew, "and the other is a doctor." "i wonder which of them does most damage?" said andrew. "i think i'll stay at home." none the less he came. it was not until the car was at the door that i found we were to be favoured with the society of my eldest son, anthony, in consequence of the facts that ( ) the day before had been his ninth birthday, ( ) that he had not cried when he met the sweep in the passage, and ( ) that for lack of the kitchen fire he had had no birthday cake. minx, also, was one of us, but as she came as a stowaway, this did not transpire till later, when explanations were superfluous. it was at the moment of departure that i perceived a donkey-cart, modestly screening itself behind the evergreens on the way to the yard, and one of flurry knox's men approached me with mr. knox's compliments, and would i lend him the loan of the long ladder? some two years ago, in a moment of weakness, i had provided myself with a ladder wherewith to attain to the eaveshoots of shreelane, since when i had found myself in the undesired position of public benefactor. how life without a long ladder had hitherto been possible for my neighbours i was at a loss to imagine, and as i was also at a loss for any valid excuse for refusing to lend it, the ladder enjoyed a butterfly existence of country-house visiting. its visits to mr. knox had been especially lengthy and debilitating. it is, as mrs. cadogan is wont to say, the last straw that puts the hump on the camel. the blood suddenly mounted to my brain, and with it came inspiration. "you can tell mr. knox that the eaveshoots of this house are leaking like sieves, and i want the ladder myself." in the glow of satisfaction kindled by the delivery of this message i started the caravan. the western breeze fanned my brow agreeably, the car purred her satisfaction with our new and only stretch of steam-rolled road, and anthony was still in the condition of being good (a condition, nevertheless, by no means to be relied on, and quite distinct from goodness). we ran west, we ran north; we skirted grey and sounding bays of the atlantic; we climbed high among heathery, stone-besprinkled moors; we lunched by the roadside in the lee of a rick of turf, and anthony, by this time emerging from the condition of being good, broke the thermos, and flashed his birthday electric torch in minx's face until she very properly bit him, and philippa slurred over the incident with impartial chocolate, and said it was time to start. the region in which the chicken farmers had established themselves suggested the nurture of snipe and sea-gulls rather than chickens. it was an indeterminate patchwork of stony knobs of hill and pockets of bog, among which the road humped and sagged, accepting pessimistically the facts of nature. hardy, noisy hill-streams scurried beside it, or over it, as seemed good to them; finally a sharp turn, a high horizon of sea, and a steep down-hill grade, ending on the shore of a small, round lake. there was a little pink box of a house on its farther side, with a few bunches of trees round it, and among them a pigmy village of prim wooden huts. "that's the place," said philippa, who had been there with lady derryclare. "and those are the last cry in hen-houses. now remember, both of you, one of them is a doctor, scotch, and a theosophist, or something mysterious of that sort; and the pretty one was engaged to a gunner and it was broken off--why, i don't know--drink, i fancy, or mad--so you had better be careful----" "i shall be guarded in my condolences," i said, turning in at the little gate, with the sensation of being forcibly fed. "as far as one can gather," said andrew, "there remains no topic in heaven or earth that----" "music and poultry," said philippa in a breath, as i drew up at the hall door. andrew rang the bell, and a flock of white ducks hurried up from among the trees and gathered round him with loud cries of welcome. there was no other reply to his summons, and at the second essay the bell-wire came out by the roots with generous completeness. "the ladies is gone to th' oxtion!" cried a voice from among the hen-coops, and the ducks lifted up their voices in ardent reply. "where is the auction?" philippa called, when a comparative silence had fallen. "in harrington's, beyond at the mines!" replied the oracle, on a well-sustained high g. "put the cards on the hall table," said philippa, "we might go back that way." several things combine in the spell that an auction casts upon my wife, as upon many others of her sex; the gamble, the competition, the lure of the second-hand, the thrill of possible treasure-trove. we proceeded along the coast road towards the mines, and i could hear philippa expounding to her first-born the nature and functions of auctions, even as the maternal carnivore instructs her young in the art of slaughter. the road with which we were now dealing ran, or, it would be more accurate to say, walked, across the stony laps of the hills. the cliffs were on our right; the sea was still flustered after the storm, like a dog that has fought and is ready to fight again. we toiled over the shoulder of a headland, and there caught sight of "harrington's." on a green plateau, high above the sea, were a couple of iron sheds and a small squat tower; landward of them was a square and hideous house, of the type that springs up, as if inevitably, in the neighbourhood of mines, which are, in themselves, among the most hideous works of man. one of the sheds had but half a roof; a truck lay on its side in a pool of water; defeat was written starkly over all. "copper, and precious little of it," i explained to andrew; "and they got some gold too--just enough to go to their heads, and ruin them." "did they put it in their mouths--where you have it, father?" enquired anthony, who was hanging on my words and on the back of my seat. "suppose you shut yours," i replied, with the brutality that is the only effective defence against the frontal attacks of the young. we found the yard at harrington's thronged with a shabby company of carts, cars, and traps of many varieties; donkey-carts had made their own of the road outside, even the small circle of gravel in front of the hall door was bordered by bicycles; apparently an auction was a fashionable function in the region of the lug-na-coppal copper-mines. dingy backs bulged from the open door of the hall, and over their heads as we arrived floated the voice of the auctioneer, demanding in tragic incredulity if people thought his conscience would permit him to let an aneroid barometer go for half-a-crown. without a word philippa inserted herself between the backs, followed by her son, and was lost to view. "thank you, madam!" said the voice, with a new note of cheer in it. "five shillings i am bid! any advance on five shillings?" "that's a good weather-glass!" hissed a farmer's daughter with a plumed hat, to a friend with a black shawl over her head. "an' i coming into the house to-day i gave it a puck, and it knocked a lep out o' the needle. it's in grand working order." "i'm told it was the last thing in the house poor mr. harrington left a hand on, the day he made away with himself, the lord save us!" remarked a large matron, casually, to andrew and me. "i thought the coroner's jury found that he fell down the shaft?" i returned, accepting the conversational opening in the spirit in which it was offered. the matron winked at me with a mixture of compassion and confederacy. "ah, the poor fellow was insured, and the jury were decent men, they wouldn't wish to have anything said that 'd put the wife out of the money." "the right men in the right place, evidently," said andrew, who rather fancies his dry humour. "but apart from the climate and the architecture, was there any reason for suicide?" "i'm told he was a little annoyed," said an enormous old farmer, delicately. "it was the weather preyed on him," said the matron. "there was a vessel was coming round to him with coal and all sorts, weather-bound she was, in kinsale, and in the latther end she met a rock, and she went down in a lump, and his own brother that was in her was drownded." "there were grounds for annoyance, i admit," said andrew. the big farmer, who had, perhaps, been one of the jury, remarked non-committally that he wouldn't say much for the weather we were getting now, and there was one of them planets was after the moon always. we moved on to the yard, in which prospective buyers were prowling among wheelbarrows, coils of rope, ladders, and the various rubbish proper to such scenes, and andrew discoursed of the accessories that would be needed for the repair of my eaveshoots, with the large-mindedness of the government official who has his own spurs and another man's horse. he was in the act of assuring me that i should save half a man's wages by having a second long ladder, when some one in the house began to play on a piano, with knowledge and vigour. the effect on captain larpent was as when a hound, outside a covert, hears the voice of a comrade within. the room from which the music came was on the ground floor, the back door was open, and andrew walked in. "that is one of those young ladies who have come here to make their fortunes with poultry," observed a melancholy-looking clergyman at my elbow, "miss longmuir, i expect; she is the musician. her friend, dr. catherine fraser, is here also. wonderful young ladies--no wish for society. i begged them to come and live near my church--i offered them a spare corner of the churchyard for their hen-coops--all of no avail." i said that they seemed hard to please. "very, very," assented the clergyman; "yet i assure you there is nothing cynical about them. they are merely recloozes." he sighed, on what seemed to be general grounds, and moved away. i followed andrew into the house and found myself in the kitchen. the unspeakable dreariness of an auction was upon it. pagodas of various crockeries stood high on the tables, and on benches round the walls sat, rook-like, an assembly of hooded countrywomen. a man with a dingy pale face was standing in front of the cold fireplace, addressing the company. on my arrival he removed his hat with stately grace, and with an effort i recognised cantillon the sweep, in mufti--that is to say, minus some of his usual top-dressing of soot. "it's what i was saying, major yeates," he resumed. "i'm sweeping those chimneys thirty years, and five managers i seen in this house, and there wasn't one o' them that got the price of their ticket to cork out o' that mine. this poor man was as well-liked as anyone in the world, but there was a covey of blagyards in it that'd rob st. pether, let alone poor mr. harrington!" the company assented with a groan of general application, and the ensuing pause was filled by the piano in the next room, large and heavy chords, suggestive of the hand of andrew. "god! mrs. harrington was a fine woman!" croaked one of the rooks on the bench. "she was, and very stylish," answered another. "oh, surely she was a crown!" "and very plain," put in a third, taking up the encomium like a part in a fugue, "as plain as the grass on the hills!" i moved on, and met my wife in a crowd at the door of the dining-room, and in an atmosphere which i prefer not to characterise. "i've got the barometer!" she said breathlessly. "no one bid for it, and i got it for five shillings! a lovely old one. it's been in the house for at least fifty years, handed on from one manager to another." "it doesn't seem to have brought them luck," i said. "what have you done with anthony? lost him, i hope!" "there have been moments when i could have spared him," philippa admitted, "especially when it came to his bidding against me, from the heart of the crowd, for a brass tea-kettle, and running the price up to the skies before i discovered him. then i found him upstairs, auctioning a nauseous old tail of false hair, amidst the yells of country girls; and finally he tried to drop out of the staircase window--ten feet at least--with a stolen basket of tools round his neck. i just saw his hands on the edge of the window-sill." "i think it's time to go home," i said grimly. "darling, _not_ till i've bought the copper coal-scuttle. come and look at it!" i followed her, uttering the impotent growls of a husband. as we approached the drawing-room the music broke forth again, this time in power. three broad countrywomen, in black hooded cloaks and brown kid gloves, were seated on a sofa; two deeply-engrossed backs at the piano accounted for the music. there is no denying the fact that a piano duet has some inescapable association with the schoolroom, no matter how dashing the execution, how superior the performers. "poor old 'semiramide'!" whispered philippa; "i played that overture when i was twelve!" over her shoulder i had a view of andrew's sleek black poll and brown neck, and an impression of fluffy hair, and a slight and shapely back in a norfolk jacket. "he seems to have done very well in the time," i said. "that's the pretty one, isn't it?" i here became aware that the hall was filling with people, and that mr. armstrong, the auctioneer, with his attendant swarm of buyers, was at my elbow. "that's a sweet instrument," he said dispassionately, "and, i may say, magnificently played. come, ladies and gentlemen, we'll not interrupt the concert. it might be as good for me to take the yard next, before the rain comes." he led away his swarm, like a queen bee; "semiramide" stormed on; some people strayed into the room and began to examine the furniture. the afternoon had grown overcast and threatening, and i noticed that a tall man in dark clothes and a yachting cap had stationed himself near the treble's right hand. he was standing between her and the light, rather rudely, it seemed to me, but the players did not appear to notice. "that was rather a free and easy fellow," i said to philippa, as we were borne along to the back door by the tide of auction. "who? do you mean mr. armstrong?" said philippa. "i'm rather fond of him----" "no, the tall chap in the yachting cap." "i didn't notice him--" began philippa, but at this moment we were shot into the yard by pressure from behind. mr. armstrong took his stand on a packing-case, the people hived in round him, and i saw my wife no more. coils of fencing wire and sheets of corrugated iron were proffered, and left the audience cold; a faint interest was roused when the auctioneer's clerk held up one of a party of zinc pails for inspection. "you'd count the stars through that one!" said a woman beside me. "you can buy it for a telescope, ma'am!" said mr. armstrong swiftly. "well, well, hasn't he a very fine delivery!" said my neighbour, regarding mr. armstrong as if he were a landscape. "hannah," said the woman on my other hand, in a deep and reproachful contralto, speaking as if i did not exist, "did ye let the kitchen chairs go from you?" "there wasn't one o' them but had a leg astray," apologised hannah--"they got great hardship. when harrington 'd have a drop taken he'd throw them here and there." "ladies! ladies!" reproved mr. armstrong. "is this an oxtion or is it a conversassiony? john! show that ladder." "a big lot of use a forty-foot ladder'd be to the people round this place!" said a superior young farmer in a new suit of clothes; "there isn't a house here, unless it's my father's, would have any occasion for it." hannah dug me hard in the ribs with her elbow and put out her tongue. "five shillings i am bid for a forty-foot ladder!" said mr. armstrong to the heavens; "i'd get a better price at a jumble sale!" "look at the poker they have in it by the way of a rung!" continued the young farmer. "i wouldn't be bothered buying things at oxtions; if it was only gettin' marr'ed you were you'd like a new woman!" "seven and six!" to my own astonishment i heard my voice saying this. "seven and six i am bid," said the auctioneer, seizing me with his eye. "ten shillings may i say? thank you, sir----" the clergyman had entered the lists against me. i advanced against him by half-crowns; the audience looked on as at a battle of giants. at twenty-five shillings i knew that he was weakening; at thirty shillings the ladder was mine. i backed out of the crowd with the victor's laurels on my brow, and, as i did so, a speck of rain hit me in the eye. the sea was looking cold and angry, and the horizon to windward was as thick as a hedge. it was obviously time to go, and i proceeded in the direction of the car. as i left the yard a remarkable little animal, which for a single wild instant i took for a fox or a badger, came running up the road. it was reddish brown, with white cheeks and a white throat; it advanced hesitatingly and circled round me with agitated and apologetic whimpers. "minx!" i said incredulously. the fox or badger flung itself on its side and waved a forepaw at me. "it's hunting rabbits below on the cliffs she was," said a boy in a white flannel jacket, who was sitting on the wall. "oh, there you are," said philippa's voice behind me; "i wanted to remind you to remember the aneroid. it's on the dining-room table. i'm feeling rather unhappy about that child," she went on, "i can't find him anywhere." "_i'll_ go in and find him," i said, with a father's ferocity. "i hope he's there," said philippa uncomfortably. "good gracious! is that minx?" i left the boy to explain, and made for the house, getting through the crowd in the doorway by the use of tongue and elbows, and making my way upstairs, strode hastily through the dark and repellent bedrooms of "harrington's." anthony was not there. in the dining-room i heard andrew's voice. i went in and found him sitting at the dinner-table with two ladies, one of whom was holding his hand and examining it attentively. she had pale eyelashes, and pale golden hair, very firmly and repressively arranged; she was big and fresh and countrified looking, and her eyes were water-green. she looked like an icelander or a finn, but i recognised her as the second chicken farmer, dr. fraser. "i was looking for anthony," i said, withholding with difficulty an apology for intrusion. "we've got to get away, andrew----" "i was having my fortune told," said andrew, looking foolish. "i saw your little boy going across the field there, about half an hour ago," said dr. fraser, looking up at me with eyes of immediate understanding. "the white terrier was with him." "towards the cliffs?" i said, feeling glad that philippa was not there. "no, to the right--towards the tower." she went to the window. "there was some one with him," she added quickly. "there he is now--that man in a yachting cap, by the tower----" "i don't see anyone," i said, refixing my eye-glass. miss fraser continued to stare out of the window. "you're short-sighted," she said, without looking at me. "perhaps if the window were open----" before i could help her she had opened it, and the west wind rushed in, with big drops in it. "i must be blind," i said, "i can see no one." "nor can i--now," she said, drawing back from the window. she sat down at the table as if her knees had given way, and her strong white hand fell slackly on philippa's purchase, the old aneroid barometer, and rested there. the other girl looked at her anxiously. "hold up, cathie!" she said, as one speaks to a horse when it stumbles. her friend's eyes were fixed, and empty of expression, and the fresh pervading pink of her face had paled. "perhaps we had better go and look for that kid," said andrew, getting up, and i knew that he too was aware of something uncomfortable in the atmosphere. before we could get out of the room, dr. "cathie" spoke. "i see tram-lines," she said gropingly, "and water--i wonder if he's asleep----" she sighed. andrew and i, standing aghast, saw her colour begin to return. her friend's eye indicated to us the door. we closed it behind us, and shoved our way through the hall. "i say!" said andrew, as we got outside, "i thought she was going to chuck a fit, or have hysterics, or something. didn't you?" i did not answer. cantillon, the sweep, was hurrying towards me with tidings in his face. "mrs. yeates is after going to the cliff looking for the young gentleman--but sure what i was saying----" i did not wait to hear what cantillon's observations had been, because i had caught sight of philippa, away in a field near the edge of the cliffs. she was running, and the boy with the white flannel jacket was in front of her. it seemed ridiculous to hurry, when i knew that anthony had been accompanied by a large man in a yachting cap (in itself a guarantee of competency). none the less, i ran, with the wind and the heavy raindrops in my face, across country, not round by the road, and ran the faster for seeing my wife and her companion sinking out of sight over the edge of the cliff, as by an oblique path. my way took me past the tower; there was a little plateau there, with a drooping wire fence round it, and i had a glimpse of the square black mouth of the disused shaft. "near the tower," the girl had said; but she had also said there was a man with him. i ran on, but fear had sprung out of the shaft and came with me. a hard-trodden path led from the tower to the cliff; it fell steeper and steeper, till, at a hairpin turn, it became rocky steps, slanting in sharp-cut zigzags down the face of the cliff. on the right hand the rocks leaned out above my head, yellow and grey and dripping, and tufted with sea pinks; on the left there was nothing except the wind. a couple of hundred feet below the sea growled and bellowed, plunging among broken rocks. i did not give room to the thought of anthony's light body, tossed about there. at a corner far below i had a glimpse of philippa and the boy in the white jacket; he was leading her down--holding her hand--my poor philippa, whose nightmare is height, who has _vertige_ on a step-ladder. she must have had a sure word that anthony had gone down this dizzy path before her. a mass of rock rose up between us, and they were gone, and in that gusty and treacherous wind it was impossible to make better speed. the damnable iteration of the steps continued till my knees shook and my brain was half numb. they ceased at last at the mouth of a tunnel, half-way down the vertical face of the cliff; there was a platform outside it, over the edge of which two rusty rails projected into space above a narrow cove, where yellow foam, far below, churned and blew upwards in heavy flakes. philippa and her guide had vanished. i felt for my match-box, and plunged into the dark and dripping tunnel. i pushed ahead, at such speed as is possible for a six-foot man in a five-foot passage, splashing in the stream that gurgled between the tram-rails, and stumbling over the sleepers. soon the last touches of daylight glinted in the water, they died, and it was pitch dark. i struck a match, sheltering it with my cap from the drips of the roof, and shouted, and stood still, listening. there was no sound, except the muffled roar of the sea outside; the match kindled broad sparkles of copper ore in the rock, but other response there was none. match by match i got ahead, shouting at intervals, stooping, groping, clutching at the greasy baulks of timber that supported the roof and sides, till a cold draught blew out my match. my next revealed a cross-gallery, with a broken truck blocking one entrance. there remained two ways to choose between. it was certain that the tram-rails must lead to the shaft, but which way had philippa gone? and anthony--i stood in maddening blackness; some darkness is a negative thing, this seemed an active, malevolent pressure. i counted my matches, and shouted, and still my voice came back to me, baffled, and without a hope in it. there were not half a dozen matches left. a faint, paddling sound became audible above the drippings from the roof; i struck another of my matches, and something low and brown came panting into the circle of light. it was minx, coming to me along the gallery of the tram-rails. she paused just short of the cross-ways, staring as though i were a stranger, and again a circling wind blew out my match. a fresh light showed her, still motionless; her back was up, not in the ordinary ridge, but in patches here and there; she was looking at something behind me; she made her mouth as round as a shilling, held up her white throat, and howled, thinly and carefully, as if she were keening. i cannot deny that i stiffened as i stood, and that second being that inhabits us, the being that is awake when we are asleep (and is always afraid), took charge for a moment; the other partner, who is, i try to think, my real self, pulled himself together with a certain amount of bad language, thrust minx aside, and went ahead along the gallery of the tram-lines. it needed only a dozen steps, and what minx had or had not seen became a negligible matter. a white light, that turned the flame of my match to orange, began to irradiate the tunnel like moonrise, defining theatrically the profiles of rock, and the sagging props and beams. it came from an electric lamp, anthony's electric lamp, standing on a heap of shale. the boy in the flannel jacket was holding a lighted candle-end in his fingers, and bending low over philippa, who was kneeling between the tram-lines in the muddy water, holding anthony in her arms. he was motionless and limp, and i felt that sickening drop of the heart that comes when the thing that seems too bad to think of becomes in an instant the thing that is. "tram-lines and water--" said a level voice in my brain. "i wonder if he is asleep----" i wondered too. philippa looked up, with eyes that accepted me without comment. "only stunned, i think," she said hoarsely. "he opened his eyes an instant ago." "the timber fell on him," said the country boy. "look where he have the old prop knocked. 'twas little but he was dead." anthony stirred uneasily. "oh, mother, you're holding me too tight!" he said fractiously. from somewhere ahead vague noises came, rumblings, scrapings, hangings like falling stones-- "it must be they're putting a ladder down in the shaft," said the boy. anthony had broken his collar-bone. so dr. fraser said; she tied him up with her knitted scarf by the light of the electric torch; i carried him up the ladder, and have an ineffaceable memory of the lavender glare of daylight that met us, and of the welcome that was in the everyday rain and the wet grass. in the relief of the upper air i even bore with serenity the didactics of andrew, who assured me that he had seen from the first that the shaft was the centre of the position, though he had never been in the slightest degree uneasy, because dr. fraser had seen some one with anthony. dr. fraser said nothing; no more did i. "see now," said cantillon the sweep, who, in common with the rest of the auction, was standing round the car to view our departure, "it pinched me like death when they told me the major had that laddher bought!" being at the time sufficiently occupied in preparing to get away, i did not enquire why cantillon should have taken the matter so much to heart. "but after all," he proceeded, having secured the attention of his audience by an effective opening, "wasn't it the mercy of god them chaps mr. knox has at the kennels had it lent to the mahonys, and them that's here took it from the mahonys in a hurry the time mr. harrington died! and through all it was the major's ladder." andrew had the ill-breeding to laugh. "sure it'd be no blame for a gentleman not to know the like of it," said cantillon with severity. "faith, i mightn't know it meself only for the old poker i stuck in it one time at mr. knox's when a rung broke under me----" it is a valuable property of the motor-car that it can, at a moment's notice, fill an inconvenient interval with loud noises. i set the engine going and jumped into the car. something, covered by a rug, cracked and squashed under my foot. it was the aneroid. when we reached a point in the road where it skirts the cliff i stopped the car, and flung the aneroid, like a quoit, over the edge, through the wind and the rain, into oblivion. v the maroan pony it had taken ten minutes to work the car over the bridge at poundlick, so intricate was the crowd of people and carts, so blind and deaf to any concerns save their own; a crowd that offered sometimes the resistance of the feather bed, sometimes that of the dead wall, an intractable mass, competent to reduce the traffic of piccadilly to chaos, and the august piccadilly police to the point of rushing to the nearest lunatic asylum, and saying, "let us in! we are mad!" the town of poundlick is built at so accommodating a tilt that it is possible to stand on the bridge at its foot, and observe the life of its single street displayed like a poster on the hillside; even to compare the degrees of custom enjoyed by its public-houses, and to estimate the number of cur dogs to the square yard of pavement. i speak of an ordinary day. but this hot twentieth of september was far from being ordinary. the poundlick races are, i believe, an ancient and annual function, but, being fifteen miles from anywhere, i had hitherto been content to gauge their attractions by their aftermath of cases in the petty sessions court next following the fixture. there is, however, no creature more the sport of circumstances than a married man with a recent motor; my attendance, and that of the car, at the poundlick races had been arranged to the last sandwich before i had time to collect objections (and this method, after all, saves some wear and tear). the races are held on the banks of the arrigadheel river, within hail of the town, and are reached--as everything in ireland is reached--by a short cut. we--that is to say, my wife, her cousin, captain andrew larpent, r.e., and i--were gathered into the jovial crowd that straggled, and hustled, and discoursed over the marshy meadows of the river, and ploughed through the brown mud in the gaps without a check in pace or conversation. the committee had indeed "knocked" walls, and breached banks, but had not further interfered with the course of nature, and we filed at length on to the course across a tributary of the river, paying a penny each for the facilities offered by a narrow and bounding plank and the muddy elbow of a young man who stood in mid-stream; an amenity accepted with suitable yells by the ladies (of whom at least ninety per cent. remarked "o god!" in transit). the fact that there are but four sound and level fields within a ten-mile radius of poundlick had simplified the labours of the committee in the selection of a course. rocky hills rose steeply on two sides of the favoured spot, the arrigadheel laid down the law as to its boundaries, and within these limitations an oval course had been laid out by the simple expedient of breaking gaps in the banks. the single jump-race on the programme was arranged for by filling the gaps with bundles of furze, and there was also a water-jump, more or less forced upon the committee by the intervention of a ditch pertaining to one of the fences. a section of the ditch had been widened and dammed, and the shallow trough of pea-soup that resulted had been raised from the rank of a puddle by a thin decoration of cut furze-bushes. the races had not begun, but many horses were galloping about and over the course, whether engaged in unofficial competitions or in adding a final bloom to their training, i am unable to say. we wandered deviously among groups of country people, anchored in conversation, or moving, still in conversation, as irresistibly as a bog-slide. whether we barged into them, or they into us, was a matter of as complete indifference to them as it would have been to a drove of their own bony cattle. "these are the sort of people i love," said philippa, her eyes ranging over the tented field and its throngs, and its little red and green flags flapping in the sunshine. "real primitives, like a chorus in _acis and galatea_!" she straightened her hat with a gasp, as a couple of weighty female primitives went through us and passed on. (in all circumstances and fashions, my wife wears a large hat, and thereby adds enormously to the difficulties of life.) among the stalls of apples and biscuits, and adjacent to the drink tent, a roulette table occurred, at which the public were invited to stake on various items of the arms of the united kingdom. the public had accepted the invitation in considerable numbers, and i did not fail to point out to philippa the sophisticated ease with which acis flung his penny upon "harp," while galatea, planking twopence upon the prince of wales' plumes, declared that the last races she was at she got the price of her ticket on "feather." we passed on, awaking elusive hopes in the bosoms of two neglected bookmakers, who had at intervals bellowed listlessly to the elements, and now eagerly offered me rambling katty at two to one. "boys, hurry! there's a man dead, north!" shrieked a boy, leaping from the top of a bank. "come north till we see him!" a rush of boys went over us; the roulette table was deserted in a flash, and its proprietor and the bookmakers exchanged glances expressive of the despicable frivolity of the rustics of poundlick. "we ought to try to find dr. fraser," said philippa, hurrying in the wake of the stampede. "i did not know that the chicken farmers were to be among the attractions," i said to andrew, realising, not for the first time, that i am but an infant crying in the night where matters of the higher diplomacy are toward. andrew made no reply, as is the simple method of some men when they do not propose to give themselves away, and we proceeded in the direction of the catastrophe. the dead man was even less dead than i had expected. he was leaning against a fence, explaining to dr. catherine fraser that he felt all the noise of all the wars of all the worlds within in his head. dr. fraser, who was holding his wrist, while her friend, miss longmuir, kept the small boys at bay, replied that she would like a more precise description. the sufferer, whose colour was returning, varied the metaphor, and said that the sound was for all the world like the quacking of ducks. "you'd better go home and keep quiet," said dr. fraser, accepting the symptom with professional gravity. i asked my next door neighbour how the accident had occurred. "danny lyons here was practising this young mare of herlihy's for lyney garrett, that's to ride her in the first race," said my neighbour, a serious man with bushy black whiskers, like an old-fashioned french waiter, "and sure she's as loose as a hare, and when she saw the flag before her on the fence, she went into the sky, and danny dhruv in the spur to keep the balance, and with that then the sterrup broke." "it's little blagyarding she'd have if it was lyney was riding her!" said some one else. "ah, lyney's a tough dog," said my neighbour; "in the ring of ireland there isn't a nicer rider." [illustration: "lyney's a tough dog!"] "there might be men as good as him in poundlick!" said an ugly little black-muzzled fellow, suddenly and offensively, "and horses too! as good as any _he'll_ throw his leg over!" dr. fraser's patient stood up abruptly. "oh, oh, oh!" said the man with the bushy whiskers, placing himself in front of the invalid. "let you be said by the lady, danny, and go home! have behaviour now, peter lynch!" the matter hung for a moment; a bell began to ring in the middle of the course, and the onlookers flung the situation from them like a squeezed lemon, and swept _en masse_ towards the summons, bearing with them the invalid. "off the stage i have never seen people clear out so fast," remarked andrew. "now that we've seen dr. fraser's lightning cure, i suppose we may as well go too." his eyes, by a singular coincidence, met those of miss longmuir, which were very pretty eyes, dark and soft. "i must go and hunt up our pony," she said, with a very businesslike air; "we've entered her for the third race, you know." she put back her hair as it blew across her forehead, and the gold in it glinted in the sun. "how sporting of you!" we heard andrew say, as they walked away together. my wife and dr. fraser and i turned as one man, and went in the opposite direction. we steered for an island of furze and grey boulders that had been flung into the valley like a vedette from the fortified hill-side, and was placed, considerately, at the apex of the oval course. half a dozen men were already grouped upon the boulders, like cormorants. we clambered to a higher _étage_, and there spread forth ourselves and our belongings upon the warm slabs. the sun was hot, yet not too hot, the smell of trodden turf was pleasant in the air, the river sparkled and gurgled beside us; the chimneys of poundlick sent up languid spires of blue smoke; its yellow and pink and white houses became poetic in the september haze. the first delicate pangs of hunger were stealing upon us, and i felt reasonably certain that nothing necessary to our welfare had been forgotten. i lit a cigarette and pulled my cap over my eyes, and listened to a lark, spiring, like the smoke, into the blue, while my wife clattered in the luncheon basket. it was a moment of entire well-being, overshadowed only by the prospect of having to take an interest in the racing. i said as much to dr. fraser, who was dismembering a cold chicken with almost awful surgical dexterity. "you must wake up for our race," she said. "i'll call you in time." "must i? i hope you're going to ride." "heaven forfend!" replied dr. fraser. "nothing more spirited than a weight-carrying bicycle! i'm not in the least horsey. meg was dying to ride, but as we bought the pony from the great lyney, and he had won any number of races on her, he was distinctly indicated." "quite right too," i said, with dowager-like propriety. "and i should wish it to be clearly understood that if, at the last moment, your friend mr. lyney should be too drunk to ride, i will not take his place." "he doesn't drink," said dr. fraser, who has an unsympathetic way of keeping to the point. "he's been a great friend of mine ever since i mended a broken finger for him." there was a stir among the cormorants on the lower tier of boulders, a shot was fired at the far end of the course, every one began to shout, and an irregularly shaped mass was detached from the crowd, and resolved itself into a group of seven horses, pounding towards us at a lumbering canter. one of the riders had a green jacket, the others were in shirt sleeves, with coloured scarves over their shoulders; all were bareheaded. as they neared the first jump, i found myself on my feet on my boulder, with two unknown men hanging on to me to steady themselves. "that's no throuble to them!" shouted one of my _attachés_, as each horse in turn galloped over or through the barrier of furze in the gap. "which is lyney garrett?" i asked. "that's him on the chestnut mare--the jock that have the dhress on him." he pointed to the wearer of the green jacket. "ah ha! lyney's the boy! look at him now, how he'll stoop and leave the horse to go for herself! he'll easy the horse, and he'll easy himself!" "that rambling katty he's riding's a nice loose mare--she has a good fly in her," said another. "lyney's built for it. if there's any sort of a spring in a horse at all, he'll make him do it." "he'd make a donkey plough!" flung in another enthusiast. as they neared the flags at the turn of the oval--and an uncommonly sharp turn it was--the pace improved, each man trying to get the inside station; i could already see, written on the countenance of a large young grey horse, his determination to pursue an undeviating course of his own. "now, lyney! spare him in the angle!" shouted my neighbour, hanging on to my sleeve and rocking perilously. lyney, a square-shouldered young man, pale and long-jawed, bored determinedly on to the first flag, hit it with his right knee, wrenched rambling katty round the second flag, and got away for the water-jump three lengths ahead of anyone else. "look at that for ye--how he goes round the corner on one leg!" roared his supporter. "he'd not stop for the lord leftenant!" the remaining riders fought their way round the flags, with strange tangents and interlacing curves; all, that is to say, save the grey horse, who held on unswervingly and made straight for the river. the spectators, seated on the low bank at its edge, left their seats with singular unanimity. the majority fled, a little boy turned a somersault backwards into the water, but three or four hardier spirits tore off their coats, swung them like flails in front of the grey, and threw their caps in his face, with a wealth of objurgation that i have rarely heard equalled. "the speed was in him and he couldn't turn," explained one of my neighbours, at the top of his voice, as the grey, yielding to public opinion, returned to the course and resumed the race. "that horse is no good," said a dapper young priest, who had joined our crowd on the rock. "look at his great flat feet! you'd bake a cake on each of them!" "well, that's the case indeed, father," replied a grizzled old farmer, "but he's a fine cool horse, and a great farming horse for ever. be gance! he'd plough the rocks!" "well, he'll get a nice view of the race, anyway," said the young priest, "he has it all before him." "they don't seem to be getting any delay with the water-jump," said some one else regretfully. "ah, what's in it but the full of a few tin cans!" said my adherent. "well, for all, it knocked a good lep out o' rambling katty: she went mountains over it!" "look south! look south! they're coming on again, and only five o' them in it----" the cheering was hotter this time, and it was entirely characteristic that it was the riders who were shouted for and not the horses. "they'll win now this turn--there's three o' them very thick, that's a nice tidy race," said the old farmer. "good boy, kenny! go on, kenny!" bellowed some one on a lower ledge. "who's second, coming up to the flag now?" panted philippa, who was hanging on to the collar of my coat and trying to see over my shoulder. "that's jimmy kenny," responded the man below, turning a black-muzzled face up towards us, his light eyes gleaming between their black lashes in the sunshine, like aquamarines. i recognised peter lynch, whom we had met earlier in the day. "it's young kenny out of the shop," explained the old farmer to me; "he rides very nate." no one was found to endorse his opinion. the horses came on, sweating and blowing, the riders, by this time very red in the face, already taking to their whips. by some intricate process of jostling, young kenny got the inside place at the first flag. "now is he nate! what was i saying!" exulted the old farmer. "lyney! lyney!" roared the faithful gallery, as the leaders hustled round the second flag and went away up the course. "up, kenny!" replied the raucous tenor of peter lynch in solitary defiance. last of all, the grey horse, who would plough the rocks, came on indomitably, and made, as before, a bee-line for the river. here, however, he was confronted by a demonstration hurriedly arranged by his friends, who advanced upon him waving tall furze-bushes, with which they beat him in the face. the grey horse changed his mind with such celerity that he burst his girths; some one caught him by the head, while his rider hung precariously upon his neck; some one else dragged off the saddle, replanted his jockey upon his broad bare back, and speeded him on his way by bringing the saddle down upon his hind-quarters with an all-embracing thump. "it's only the age he wants," said a partisan. "if they'd keep him up to the practice, he'd be a sweeper yet!" tumult at the end of the course, and a pistol-shot, here announced that the race was over. "lyney have it!" shouted some men, standing on the fence by the water-jump. "what happened kenny?" bawled peter lynch. "he was passing the flag and he got clung in the pole, and the next man knocked him down out of the pole!" shouted back the field telegraph. "oh pity!" said the old farmer. "he didn't get fair play!" vociferated peter lynch, glowering up at the adherents of lyney with a very green light in his eye. the young priest made a slight and repressive gesture with his hand. "that'll do now, peter," he said, and turned to the old farmer. "well, rambling katty's a hardy bit of stuff," he went on, brushing the rock-lichen from his black coat. "she is that, father," responded my late adherent, who, to my considerable relief, had now ceased to adhere. "and nothing in her but a fistful of bran!" "she's the dryest horse that came in," said the young priest, descending actively from the rock. with the knowledge that the committee would allow an hour at least for the effects of a race to pass off before launching another, we climbed to the summit of the island, and began upon the luncheon basket; and, as vultures drop from the blue empyrean, so did andrew and miss longmuir arrive from nowhere and settle upon the sandwiches. "oh, i can't eat our own game, can i?" said the latter, with a slight shudder, as i placed the chicken before her. "no--really--not even for your sake!" she regarded me very pleasingly, but i notice that it is only since my hair began to turn grey over my ears that these things are openly said to me. "i had to feed four dozen of the brutes before we started this morning, and i shall have to do it all over again when we get home!" "i don't know how you stand it, i should let 'em starve," said andrew, his eyes travelling from her white forehead to her brown hands. "_i_ don't consider it is work for ladies." "you can come and help the ladies if you like," said miss longmuir, glancing at him as she drove her white teeth into a sandwich. "do you mean that?" said andrew in a low voice. "she's blown him to pieces before he's left the covert," i said to myself, and immediately withdrew into blameless conversation with my wife and dr. fraser. we had gone pretty well down through the luncheon basket, and had arrived at a second and even more balmy--being well-fed--period of peace, before it occurred to miss longmuir to look at her watch, and to spoil the best cigarette of the day with agitations concerning the non-appearance of her pony. i suggested that she and captain larpent should go in search of it, and for a brief interval the disturbing element was eliminated. it returned, with added agitation, in a quarter of an hour. "cathie! i can't find nancy anywhere! we've been all round the course," cried miss longmuir from below. "and john sullivan is nowhere to be found either, and i can't get near lyney, he's riding in the trotting race." "you'll find the pony is somewhere about all right," i said, with the optimism of combined indolence and indifference. "that seems probable," said andrew, "but the point is, she's somewhere where we're not." "the point is, she ought to be here," said miss longmuir, with a very bright colour in her cheeks as she looked up at us. "heavens! they're very angry!" i murmured to dr. fraser. "well, what do you want us to do?" enquired dr. fraser lethargically. "you might take some faint shadow of interest in the fact that nancy is lost," replied miss longmuir. "i think we'd better organise a search-party," said philippa (who does not smoke). we rose stiffly, descended from our sun-warmed boulders, and took up the white man's burden. a sweeping movement was inaugurated, whose objects were to find the pony or her attendant, john sullivan, or lyney. "should you know the pony if you saw her?" i said confidentially to dr. fraser, as she and i set forth together. "we've not had it very long," she replied dubiously. "luckily it's an easy colour. john sullivan calls it maroan--a sort of mixture of roan and maroon." we advanced from field to field, driving like twin darning-needles through the groups of people, but neither john sullivan nor the maroan pony transpired. "come on, come on! the stepping match is starting!" shouted some one. dr. fraser and i were caught in the tightening mesh of the crowd, as in the intricacies of a trammel net; an irregular thumping of hoofs, and a row of bare and bobbing heads, passing above the heads of the crowd, indicated that the stepping match was under way. lyney's dour face and green jacket were in the lead, and, as before, had he been diana of the ephesians, he could not have been more passionately called upon. as it was obviously useless for us to do so at this juncture, we climbed on to a bank near the winning post, and watched the race. lyney was riding a long-backed yellow animal with a face as cross as his own, and a step as fast as the tick of a watch. "anny other man than lyney wouldn't carry that old pony round," said one man. "she has a score o' years surely, but she's as wicked as a bee," said another. "lyney's very knacky; he couldn't be bate," said the first man. "well, well, look at jimmy kenny and his father, and the two o' them riding!" went on the commentator. "faith, i'd give the father the sway. jimmy's riding uneven. when the nag is rising, he's falling." "sure he has his two elbows into his ears! go on, lyney boy!" the horses pounded past, splashing through the shallow flood of the water-jump, and trampling over such furze-bushes as had withstood the vicissitudes of the steeplechase. they passed from our view, and dr. fraser and i agreed that we should be justified in staying where we were till the finish. three times they passed us, enveloped in a travelling roar of encouragements, and with each passing the supporters of lyney and kenny bayed and howled more emulously. the competitors, now, to all practical intent, reduced to the kennys, _père et fils_, and lyney, again disappeared on their last round, and the volleys of incitement became a dropping fire of criticism. "kenny's mare is the one, the others is too crippled." "she'll not bate lyney! divil blast the bate she have in her! she's too dropped and too narra!" "what horse is first?" "i d'know; only one, i think." "look at young kenny coming up on the father now!" "ah, there's more in the owld fella, never fear him!" "come on, lyney! come on, kenny! lyney! lyney!" lyney won. the bee-like wickedness of the yellow mare apparently served her as well as youth, and despite the fact that she was but little over fourteen hands and was carrying twelve stone, she finished a dozen lengths in front. the interest of the race was at once transferred to the struggle for second place between the kennys. "come on, tom! come on, jimmy! begor' the father have it!" yelled the crowd, as kenny _père_, flourishing his whip over his grey head, finished half a length in front of his son. "them two tight wheels at the corner, 'twas there he squeezed the advantage on the son." "no, but the father had a drop taken, 'twas that that gave him the heart." dr. fraser and i got off our fence and steered for lyney. he was in the act of throwing the reins on the pony's neck and himself off her back as we arrived. "here!" he said to the owner, "take your old skin!"--he tossed his whip on to the ground--"and your old whip too!" the owner took the "old skin" by her drooping and dripping head, and picked up the whip, in reverential submission, and the ring of admirers evidently accepted this mood of the hero as entirely befitting his dignity. dr. fraser advanced through them with the effortless impressiveness of a big woman, and made her enquiries about the pony. lyney dropped the hero manner. "i don't at all doubt but john sullivan's gone up to lynch's for her, doctor; you needn't be uneasy at all," he said, with a respect that must have greatly enhanced our position in the eyes of the crowd. "i told him he shouldn't bring her too soon for fear she'd sour on us. we have an hour yet." soothed by this assurance we moved on, and even, in this moment of unexpected leisure, dallied with the roulette table. i had, in fact, lost ninepence, when the remainder of the search-party bore down upon us at speed. "the pony is _not_ here!" said miss longmuir, regarding our outspread coppers with an eye of burning indignation, "and sullivan's brother doesn't know where he is--says he went up to the town two hours ago. i'm going up to look for him, but of course if you'd rather stay and play roulette--" her voice shook. i need hardly say that we went. on our arrival at the town of poundlick we found it to be exclusively inhabited by grandmothers. lynch's public-house was garrisoned by a very competent member of the force, who emerged from the kitchen with an infant in her arms, and another attached to her clothing. she knew nothing of the pony, she knew nothing of john sullivan. there was certainly a young lad that came in, and he having drink taken, and wherever he got it, it wasn't in this house, and what did he do but to commence jumping the counter, you'd think he'd jump the house. she paused, and i murmured to dr. fraser that she was like a holbein, and dr. fraser replied that she did not believe one word she said, which was rather my own idea, only more so. it appeared that her son peter had, an hour ago, expelled the young lad from the house (lest its fair fame should be sullied), and as for peter, the dear knew where he was, she didn't see him since. miss longmuir and andrew here left the shop, very purposefully; we pursued, and saw them open the gate of lynch's yard and stride in. the yard was a small one, littered with cases of bottles, and congested by the outside cars and carts of race-goers; such level spaces as it possessed had been dug out of the side of the hill, and slatternly stables and outhouses were perched on the different levels. through a low-browed doorway might be seen the horses of race-goers, standing "ready dight," like the steeds of branksome hall, with heads hanging, in resigned depression, before empty ranks and mangers. but of the maroan pony there was no sign. fierce as terriers on a rat-hunt, miss longmuir and andrew dashed in and out of the dark sheds and outhouses, till there remained unexplored but one hovel, whose open door revealed only semi-darkness, edged with fern-litter. none the less, the leading terrier determined to make good the ground. a sharp yelp told of a find, and miss longmuir emerged, holding aloft a new check horse-sheet, with the initials "m.l." large upon it. "they must have taken her down to the race-course, after all--" i began. "thoughtless of them to take her without her saddle or bridle," said andrew bitingly. "here they are behind the door!" the silence that followed this discovery was broken by philippa. "i hear some one snoring!" she said in a conspirator's whisper. "do come away. i'm sure it's a drunken man." "quite so," said andrew, who had been pursuing his researches. "allow me to introduce mr. john sullivan." in the dark corner behind the door lay a stout youth, comfortably extended, with his flushed face half hidden in the dry and tawny bracken, and his open mouth framing long and quiet snores. he was obviously at peace with all the world. some heartless assaults on the part of captain larpent had no appreciable result, so inveterate was the peace, so potent the means by which it had been invoked. the ladies had retired during the interview, and, as we rejoined them in the yard, we all became aware of muffled and thunderous sounds near at hand; they were suggestive of a ponderous and chaotic clog-dance, and proceeded from an outhouse, built against the bank that formed the upper side of the yard, with its gable askew to the other buildings. "'lots of things is coor'us,' as anthony said when i told him about jonah and the whale," remarked philippa, who, throughout, had not taken the affair as seriously as it deserved. "i suppose the party that john sullivan was at is going on up there." miss longmuir darted round the gable of the house, a wild and summoning cry followed, the call of the terrier who has run his rat to ground. we found her at the foot of a low flight of irregular stone steps (in telling the story i have formed the habit of saying that there were ten of them) that led to a doorway in a loft. in the doorway, with a cabbage leaf in her mouth, was the maroan pony, looking down at us with an expression of mild surprise. we all said unanimously, and with equal futility, "how--on--earth----?" after which andrew, who dislikes miracles, arranged that she had, of course, got into the loft from the back, where the ground was high. unfortunately the theory did not work, an inspection of the loft revealing nothing but four walls, a large store of dried bracken, and a donkey-panier filled with cabbages. "these mountainy ponies climb like monkeys," said philippa, with her inevitable effort to shelter the discomfited, as andrew returned with the ruins of his theory, "she must have walked up the steps!" miss longmuir, snatching out her watch, said she didn't care how the pony got there, the point was to get her down as quickly as possible. "if people would only do something and not talk!" she added, under her breath. "if she walked up she can walk down," said andrew firmly. he mounted the steps and took the pony by the halter. the pony immediately backed thunderously out of sight, taking andrew with her. miss longmuir flew up the steps to his assistance, and unseen sarabands pummelled the floor of the loft. "go up and help them, you great lazy thing!" said philippa to me. "there's no room for any one else," i protested. here the combatants reappeared in the doorway, gradually, with endearments on one side, and suspicious snortings on the other. the steps were broad and not too intimidating; the pony advanced almost to the sill, repented in haste, and in her retreat flung andrew against the panier of cabbages. a donkey's panier is made to resist shocks; in this case it apparently gave more than it took; andrew said nothing, but he dragged the basket over the sill and hurled it down the steps with considerable emotion. i joined the party in the loft, and philippa collected the cabbages, and laid them in rows upon the steps as if it were a harvest festival, in the hope of luring the pony to the descent. the lure was rejected with indignation, and i proceeded to offer a few plain truths. that the floor would come down before the mare did. that it would take six men, and planks, and cartloads of straw, to get her out. finally, that her race was due to start in twenty minutes. "we're done," said miss longmuir tragically, addressing philippa and dr. fraser from the top of the steps, as if they were a stage mob. "these brutes have beaten us! don't you remember that lyney's father said, 'let ye keep out from them lads in poundlick'? and after all our trouble, and the training, and everything--" she turned abruptly away from the door. dr. fraser stood still, with her hand to her forehead, as though she were trying to remember something. then she too came up into the loft. the pony had now backed into the pile of bracken; andrew, whose back teeth were evidently set tight, was tugging at her halter, and she was responding by throwing her nose in the air and showing the whites of her eyes. "meg," said dr. fraser, at the doorway, "i've remembered something that i was once told--" she peered into the darkness of the loft. "may i try?" she said, advancing quietly to the pony's head. "by all means," said andrew, as chillingly as was possible for a man who was very red in the face and was draped with cobwebs. looking back now to the affair, i cannot remember that dr. fraser did anything in the least remarkable. she took hold of the halter with one hand and with the other patted the pony's neck, high up, near the ears. she also spoke to it, the sort of things anyone might say. for the life of me i could not see that she did more than anyone else had done, but nancy lowered her head and put her ears forward. dr. fraser gave the halter a gentle pull, and said, "come on, old girl!" and the pony started forward with a little run. at the doorway she stopped. we held our breaths. dr. fraser patted her again and placidly descended the first step; the maroan pony placed a trembling foot upon the threshold, steadied herself, poked her nose forward, and dropped her forefeet on to the second step. "she'll come down on top of her!" said andrew, starting forward. "don't touch her!" exclaimed miss longmuir, grasping his arm. with the tense caution of an old dog, the pony let herself down from step to step, planting her little hoofs cunningly on the rough-set stones, bracing herself with the skill learned on the rocky staircases of her native hills. dr. fraser kept a step in advance of her. thus, with slow clattering, and in deep gravity, they joined philippa in the yard. five people cannot advantageously collaborate in putting a saddle and bridle on a pony, but we tried, and in the grim hustle that resulted no one asked questions or made comments. amongst us the thing was done, and there were still seven minutes in hand when andrew shot out of the yard on her back. hard on her heels followed philippa and miss longmuir, with scarcely inferior velocity. i returned to the remaining member of the party and found that she had seated herself on the steps. she said she was tired, and she looked it. "i daresay getting that beast down the steps was rather a strain?" i said, spreading the pony's rug for her to sit on. "oh, that was nothing. please don't wait for me." i said in my best ironic manner that doctors were of course impervious to fatigue, and indeed superior to all human ills. she laughed. "i admit that i was rather nervous that the thing wouldn't work, or would break down half-way." "what thing?" i demanded. "the pony?" "no. the secret. it _is_ a secret, you know. my grandfather gave rarey thirty pounds for it. i've never had much to say to horses, but i have started a jibbing hansom horse in oxford street with it." she laughed again, apologetically. "you needn't believe it unless you like. i must say i was afraid it mightn't include a flight of steps!" she paused and put back her abundant fair hair. "how hot it was up in that loft! i wonder if you could get me a glass of water?" i told her that i was old enough to believe anything, but added that after what she had told me i would get a second glass of water, with sal volatile in it, for myself. the holbein grandmother was standing at the back door of the house, with the baby still on her arm. she and the baby fetched the glass of water. she said wasn't the pony a fright for ever after the way he came down them steps, but why wouldn't the lady take him out through the other door into the field above? i made no reply, but while dr. fraser was drinking the water, i went up into the loft, and cleared away the bracken that had been piled in front of the "door into the field above." i opened the door, and walked out into the field, and viewed the small hoof-prints that led to the door of the loft. i returned to dr. fraser, and very gently broke the news to her. * * * * * of course lyney and the maroan pony won the race. had this not been a foregone conclusion it is possible that john sullivan might have scored less heavily in the matter of free drinks. as i was conducting my exhausted but triumphant party off the course, the poundlick sergeant of police met me and asked me if i would sign a few summonses for him, as he was after taking some parties into custody for fighting. "drunk, i suppose?" the sergeant admitted it, and said the dispute had arisen between the kennys and the lynches on the one side, and the partisans of lyney garrett on the other, out of "circumstances connected with the last race." the sergeant's eye rested for an instant, with what may be described as a respectful twinkle, upon miss longmuir. "it was mostly heavy offers and small blows, major," he concluded. "look here, sergeant," i said oracularly, "take them all to the water-jump. build up the furze in front of it. make them jump it. anyone that gets over it may be considered sober. anyone that falls in will be sober enough when he gets out." i have not, in my judicial career, delivered a judgment that gave more satisfaction to the public. vi major apollo riggs part i the leave of captain andrew larpent, r.e., was expiring, dying hard, "in rings of strenuous flight," (and my motor) on the road between shreelane and licknavar, which is the home of the chicken farmers. philippa, who regards a flirtation with an enthusiasm that is as disinterested as it is inexplicable, assured me that the state of affairs was perfectly unmistakable. she further said that the male determination to deny and ignore these things was partly sympathetic secretiveness, partly the affectation of despising gossip, and mainly stupidity. she took a long breath after all this, and, seeing andrew approaching along the garden path in apparently romantic meditation, enjoined me to be nice to the poor thing, and departed. the sun was bright, with the shallow brightness of early october, and the virginian creeper made a conflagration on the weather-slated end of the house. the poor thing deposited himself beside me on the garden seat. i noticed that his eye rested upon a white chicken with a brilliant scarlet comb; it was one of several, purchased from the chicken farmers. i would not for worlds have admitted it to philippa, but there was undoubtedly sentiment in the glance. "i hear they're having beastly weather at the curragh," he said, leaning back and looking gloomily up into the melting blue sky. "stunning that red stuff looks on the house!" he surveyed it, and sighed; then, suddenly, sentiment faded from his glance. "d'you know, old boy, that chimney up there is well out of the perpendicular. it'll be down about your ears some day." i replied that it had maintained that angle for the seven years of my tenancy. "it won't do it much longer," returned my guest. "look at that crack in the plaster!" "which crack?" i said coldly. (mr. flurry knox is my landlord, and it is my misfortune to have a repairing lease.) "take your choice," said andrew, scanning the chimneys with the alert and pitiful eye of the royal engineer. "my money's on the northern one, under the jackdaw." "oh, confound you and the jackdaws!" i said pettishly. "the chimney draws all right." but the matter did not end there. before luncheon, andrew and i had made a tour of the roof, and he had demonstrated unanswerably, and with appalling examples from barracks that he had repaired in central india, and built in wei-hai-wei, that nothing but habit and family feeling induced any one of the chimney stacks to stand up. at luncheon he told philippa that he hoped she would insure the children before the next westerly gale. philippa replied by asking if he, or anyone else, had ever heard of a chimney falling, unless it had been struck by lightning, in which case it wouldn't matter if it were straight or crooked; and though this was manifestly worthless as an argument, neither andrew nor i could remember an instance in support of our case. that the case had now become mine as well as andrew's was the logical result of illogical opposition, and at philippa's door i deposit the responsibility for a winter of as varied discomforts as it has been our lot to endure. the matter matured rapidly. in the mellow moment that comes with coffee and cigarettes, i began, almost pleasurably, to lay out the campaign. "i can't see any point in wasting money on a contractor," said andrew airily. "any of your local masons could do it if i explained the job to him. a fortnight ought to see it through." it was at this point that i should have sat heavily upon andrew. i was not without experience of the local mason and his fortnights; what could andrew know of such? i had a brief and warning vision of captain larpent, seated at an office table adorned with sheets of perfect ground-plans and elevations, issuing instructions to a tensely intelligent sapper sergeant. i saw the sergeant, supreme in scientific skill (and invariably sober), passing on the orders to a scarcely less skilled company of prompt subordinates--but my "worser angel" obliterated it. and that very afternoon, on our way to aussolas, we chanced to meet upon the road the local mason himself, william shanahan, better known to fame as "walkin' aisy." he was progressing at a rate of speed that accorded with his sub-title, and, as i approached him, a line of half-forgotten verse came back: "entreat her not, her eyes are full of dreams." nevertheless, i stopped the car. [illustration: "walkin' aisy."] in answer to enquiries, he mused, with his apostolic countenance bent upon the ground; after a period of profound meditation, he asked me why wouldn't i get one of the big fellas out from the town? i have never known walkin' aisy to accept a job without suggesting that some one else could do it better than he (in which he was probably quite right). this may have been humility, due to the fact that his father had been that despised thing, "a dry-wall builder"; it may have been from coquetry, but i am inclined to think it was due to a mixture of other-worldliness and sloth. on pressure he said that he had still a small pieceen of work to finish, but he might be able to come down to-morrow to travel the roof and see what would be wanting to us, and on monday week, with the help of god, he would come in it. his blue eyes wavered towards the horizon. the interview closed. "'fair and young were they when in hope they began that long journey,'" cooed philippa, as we moved away. the quotation did not, as i well knew, refer to our visit to the knoxes. at aussolas i aired my project to my landlord. flurry is not a person to whom it is agreeable to air a project. "rebuild the chimneys, is it? oh, with all my heart. is there anything the matter with them?" andrew explained the imminence of our peril, and flurry listened to him with his inscrutable eye on me. "well, it'll be some fun for you during the winter, major, but be careful when you're cutting the ivy!" i was betrayed into asking why. "because there's only it and the weather-slating keeping the walls standing." "if i may presume to contradict one so much younger than myself," said old mrs. knox, "shreelane is as well built a house as there is in the county." her voice was, as ever, reminiscent of a bygone century and society; it was also keen-edged, as became a weapon of many wars, ancient and modern. she turned to me. "in the storm of ' i remember that my father said that if shreelane fell not a house in ireland would stand. every one in the house spent that night in the kitchen." "may be that was nothing new to them," suggested flurry. mrs. knox regarded her grandson steadfastly and continued her story. it has already been noted that when he and she were of the same company they considered no other antagonist worthy of their steel. "it was my great-grandfather who built shreelane in honour of his marriage," she went on. "he married a riggs of castle riggs, a cousin of the celebrated major apollo--and thereby hangs a tale!" she blinked her eyes like an old rat, and looked round at each of us in turn. i felt as if i were being regarded through a telescope, from the standpoint of a distant century. "they knew how to build in those days," she began again. "the basement story of shreelane is all vaulted." "i daresay the kitchen would make a nice vault," said flurry. his grandmother looked hard at him, and was silent, which seemed to me a rather remarkable occurrence. on the following day, andrew and walkin' aisy "travelled the roof," and i accompanied them--that is to say, i sat on the warm lead, with my back against the sunny side of a chimney, and smoked torpidly, while andrew preached, firmly and distinctly, from the top of a ladder. walkin' aisy stood at the foot of the ladder, submissive, with folded hands, and upturned bearded face, looking like an elderly saint in the lower corner of a stained-glass window. at the conclusion of the lecture he said that surely the chimneys might fall any minute, but, for all, they might stand a hundred years; a criticism almost stupefying in its width of outlook. the following day captain larpent departed to the curragh, and, as is often the way of human beings with regard to their guests, we partly breathed more freely, and partly regretted him. on the whole it was restful. a fortnight passed, and i had almost forgotten about the chimneys; i was in the act of making an early start for an absence of a couple of days at the farther side of my district, when i encountered walkin' aisy at the hall door. "i'm here since six o'clock this morning, but i had no one to tend me," he began. i was familiar with this plaint, and proffered him the yard boy. "the young fella's too wake," replied walkin' aisy, in his slow and dreamy voice, "and they takes him from me." his mild eyes rested upon me in saddened reverie. "and there should be morthar mixed," he resumed slowly, "and there's not a pick of gravel in the yard." i said, as i pulled on my gloves, that he could have johnny brien from the garden to minister to him, and that there was no hurry about the mortar. "well, it's what i was saying to the gardener," returned walkin' aisy very slowly, "i have no business coming here at all till those chimneys is taken down. the sahmint that's on them is very strong. it's what the gardener said, that quarry-men would be wanting." "why the devil didn't you say this at first?" i demanded, not without heat. "you and captain larpent told me that the old cement had no more hold than the sugar on a cake." "well, the captain knows best," replied walkin' aisy gently, "we should do what he says." "well, get the chimneys down; i don't care who does it." i drove away, and from the turn of the drive saw walkin' aisy, in motionless trance, looking after the car as if it were a chariot of fire. the well-known routine followed; the long and airless day in the court-house, the roar of battle of the rival solicitors, the wearisome iteration of drunks and trespasses, the intricacies of family feuds; the stodgy and solitary dinner at the hotel, followed by the evening in the arid smoking-room, the stale politics of its habitués, the stagnant pessimism of the proprietor, the same thing over again next day and the day after. it was not until the afternoon of the third day that i found myself serenely gliding homeward, with the wind behind me, and before me the prospect of that idleness that, like the only thirst worth having, has been earned. i was in the straight for the hall door, when i saw my wife dart from the house, gesticulating, and waving her handkerchief as if to check my approach. she was followed, at no great interval, by an avalanche of rubble and bricks from the roof, that fell like a portent from heaven, and joined itself to a considerable heap by the steps. "you never know when it's coming!" she cried breathlessly. "i've been watching for you. it's impossible to make them hear from below, and i can't find any of the men--they're all on the roof." the restoration had begun, but that fact might not have occurred to a stranger. next day, and for many days--six weeks, to be exact--the house shook as from the blows of a battering-ram, in response to the efforts of the quarrymen to remove from the chimneys the cement that had no more hold on them than the sugar on a cake, and at frequent and uncertain intervals various debris rumbled down the roof and fell heavily below. there were days when it fell in front of the house, there were days when it fell in the flower garden; where it fell, there it lay, because there was no one to take it away; all were absorbed in tending walkin' aisy, and the murmurs of their inexhaustible conversation came to us down the chimneys like the hoarse cooing of wood pigeons. there were also days when by reason of storms and rain nothing was done, and black and evil floods descended into the rooms down the ruins of the chimneys, and through the slates, broken by the feet of the quarrymen. at christmas the kitchen chimney alone remained in action, and we ate our christmas dinner in fur coats and a fireless dining-room. philippa refrained from any allusion to the quotation from longfellow that she had made after that first interview with walkin' aisy. she even denied herself the gratification of adding its context: "faded and old were they when in disappointment it ended," but i knew that she was thinking it. part ii it was somewhere towards the end of march that one chimney stack re-entered the list of combatants, trim in new cement, and crowned with tall and hideous chimney-pots. they all smoked, a thing that had never occurred before, but walkin' aisy said that the chimneys were cold, and that they wouldn't do it when they'd come to themselves; and (this was a little later on) that any chimney would smoke in an east wind. it was true that a period of east wind and drought had set in. the pump in the yard went dry; carts had to be sent half a mile for water, and it was reported to me that the masons had as much water put astray, mixing mortar and all sorts, as would drown a herring. other unpleasant things occurred. the housemaid gave half-an-hour's warning, and married one of the quarry men, and mrs. cadogan then revealed that it wasn't once nor twice during the winter that she had given that particular quarryman the full of the poker, to put him out from under her feet when she'd be dishing up the dinner. shreelane was twice drawn blank by flurry knox's hounds, and their master said that as long as i had every idle blackguard in the country tending walkin' aisy, and making short cuts through the covert, how would i have foxes there? i ignored the conundrum, and hoped that the quarryman's yellow dog would remain where i had last seen him, in the ashpit, till flurry had left the premises. it was some little time after this that captain larpent advanced upon us on a week's leave from the curragh; he wrote to say that i evidently wanted a clerk of the works, and that he would see if he couldn't get a move on shanahan. i was away when he arrived, and on my return philippa met me in the hall. "meg longmuir is here!" she said, not without a touch of defiance. "doctor catherine had to go to scotland, so i asked meg here for a few days. she'll play duets with andrew. she's up on the roof with him now." "better have a string band up there at once," i said, "and open it as a public recreation ground." "and the flurry knoxes and bernard shute are coming to dinner," continued my wife, ignoring this _jeu d'esprit_; "the smoking-room chimney is all right, and we can have the oil stove and some music in the drawing-room." with this agreeable prospect in store, we sat down to dinner. we were too many for general conversation, and the table was round, which is unfavourable for _tête-à-têtes_. yet it was not round enough to frustrate miss meg longmuir's peculiar gift for duets, and i was presently aware that she was unwarrantably devoting herself to bernard shute, leaving captain larpent derelict, and that the latter was, after the manner of derelicts, becoming a danger to navigation, and was laying down laws and arguing about them acridly with mr. knox. i realised too late that there should have been champagne. whisky and soda is all very well, but it will not warm wet blankets. meg longmuir, however, was doing remarkably well without either; she wore something intricate that was either green or blue or both, and glittered. i recognised it as the panoply of war, and knew that the tomahawk was concealed in its folds. so also was andrew's scalp; i don't know why i felt some pleasure in remembering that it had a bald patch on it. after the ladies had gone, bernard, to whose head miss longmuir had mounted as effectively as if she had been the missing champagne, rejoined the lesser world of men by asking flurry why he had shut up the season so early, and suggested a by-day, if only for the sake of giving the horses something to do. flurry put the end of his cigarette into his finger-glass, and lit another at the flaming tongue of my tame chinese dragon. "i didn't know you had one that would carry a lady?" he said. "oh rot!" said bernard helplessly. "i haven't one that will carry myself," went on flurry. "there's five lame legs among three of them this minute. anyway the hounds are in sulphur." the discussion progressed with the prolixity proper to such themes; i think it was andrew who suggested the paper-chase. he had, he said, ridden in paper-chases in egypt, and he gave us details of the stark mud walls and fathomless water-courses that were common-places of these events. we were left with the impression that none of us had ever seen obstacles so intimidating, and, more than that, if we had seen them we should have gone home in tears. "i think we'd better make a hare of _you_," said flurry, fixing expressionless eyes upon captain larpent. "it mightn't be hard." the double edge of this suggestion was lost upon andrew, who accepted it as a tribute, but said he was afraid he didn't know the country well enough. "that's your egyptian darkness," said flurry with unexpected erudition. andrew glanced sideways and suspiciously at him over the bridge of his sunburnt nose, and said rather defiantly that if he could get hold of a decent horse he wouldn't mind having a try. "i suppose you ride about . ?" asked flurry, after a moment or two of silence. his manner had softened; i thought i knew what was coming. "i've a little horse that i was thinking of parting..." he began. a yell, sharp and sudden as a flash of lightning, was uttered outside the door, followed by a sliding crash of crockery, and more yells. we plunged into the hall, and saw julia, the elderly parlourmaid, struggling on the floor amid ruins of coffee cups and their adjuncts. "the rat! he went in under me foot!" she shrieked. "he's in under me this minute!" here the rat emerged from the ruins. simultaneously the drawing-room door burst open, and the streaming shrieks of minx and her son and daughter were added to those of the still prostrate julia. the chase swept down the passage to the kitchen stairs, the pack augmented by bob, the red setter, and closely followed by the dinner party. a rat is a poor performer on a staircase, and, at the door leading into the turf-house, the dogs seemed to be on top of him. the bolt-hole under the door, that his own teeth had prepared, gave him an instant of advantage; flurry had the door open in a second, someone snatched the passage lamp from the wall, but it was obviously six to four on the rat. the turf-house was a large space at the very root of the house, vaulted and mysterious, bearing shreelane on its back like the tortoise that supports the world. barrels draped with cobwebs stood along one wall, but the rat was not behind them, and minx and her family drove like hawks into a corner, in which, beneath a chaotic heap of broken furniture and household debris, the rat had gone to ground. we followed, treading softly in the turf-mould of unnumbered winters. we tore out the furniture, which yielded itself in fragments; the delirium of the terriers mounting with each crash, and being, if possible, enhanced by the well-meant but intolerable efforts of the red setter to assist them. finally we worked down to an old door, lying on its face on something that raised it a few inches from the ground. "now! mind yourselves!" said flurry, heaving up the door and flinging it back against the wall. the rat bolted gallantly, and darted into an old box, of singular shape, that lay, half open, among the debris, and there, in a storm of tattered paper, met his fate. minx jumped out of the box very deliberately, with the rat across her jaws, and a scarlet bite in her white muzzle. with frozen calm, and a menacing eye directed at the red setter, she laid it on the turf mould, and stiffly withdrew. her son and daughter advanced in turn, smelt it respectfully and retired. there was no swagger; all complied with the ritual of fox-terrier form laid down for such occasions. i was then for the first time aware that the ladies, in all the glitter and glory of their evening dresses, had each mounted herself upon a barrel; in the theatrical gloom of the vaulted turf-house, they suggested the resurrection of ali baba's forty thieves. "look where he had his nest in among the old letters!" said flurry to philippa, as she descended from her barrel to felicitate minx and to condole with the rat. "that box came out of the rumble of an old coach, the lord knows when!" "there's some sort of a ring in the floor here," said andrew, who was rooting with a rusty crowbar in the turf-mould where the door had lain. "bring the light, someone----" the lamp revealed a large iron ring which was fixed in a flat stone; we scraped away the turf-mould and found that the stone was fastened down with an iron bar, passing through a staple at either end, and padlocked. "as long as i'm in this place," said flurry, "i never saw this outfit before." "there's a seal over the keyhole," said andrew, turning over the padlock. "that means it was not intended it should be opened," said meg longmuir quickly. i looked round, and, bad as the light was, i thought her face looked pale. andrew did not answer her. he poised the crowbar scientifically, and drove it at the padlock. it broke at the second blow, releasing the bar. "no trouble about that!" he said, addressing himself to the gallery, and not looking at miss longmuir. "now, then, shall we have the flag up?" there were only two dissentients; one was flurry, who put his hands in his pockets, and said he wasn't going to destroy his best evening pants; the other was miss longmuir, who said that to break an old seal like that was to break luck. she also looked at andrew in a way that should have gone far to redress the injuries inflicted during dinner. apparently it did not suffice. captain larpent firmly inserted the end of the bar under the edge of the flag. bernard shute took hold of the ring. "all together!" said andrew. there was a moment of effort, the flag came up abruptly, and, as abruptly, bernard sat down in the turf-mould with the flag between his legs. the crowbar slipped forward, and vanished with a hollow-sounding splash down a black chasm; andrew, thrown off his balance, also slipped forward, and would have followed it, head first, had not flurry and i caught him. the chasm was a well, nearly full; the water twinkled at us, impenetrably black; it made me think of the ink in the hollowed palm of a native who had told my fortune, up at peshawur. "that was about as near as makes no difference!" said bernard. "you've cut your cheek, larpent." "have i?" said andrew vaguely, putting up a rather shaky hand to his face. "i think my head took the edge of the well." we covered the hole with the old door, and andrew was taken away to have his wound attended to. it was not a severe wound, but the process was lengthy, and involved the collaboration of all the ladies. it seemed to the three neglected males, waiting for a fourth to play bridge, that this mobilisation of ministering angels was somewhat overdone. andrew came down to breakfast next morning with a headache, and said he had slept badly. had he discovered the source of the nile in the turf-house the night before, my wife and miss longmuir could not have been more adulatory and sympathetic, nor could the projects, based upon the discovery, have been more ambitious. i went forth to my work and to my labour without so much as a dog to wave me farewell; all were in the turf-house, surrounded by visionary force-pumps, bath-rooms, and even by miraged fountains in the garden. when i drove the car into the yard on my return that afternoon, i was confronted by a long chestnut face with a white blaze, looking at me out of the spare loose-box--the face, in fact, of "the little horse" of whom flurry had spoken to andrew. there was also, added to the more familiar heaps of mortar, gravel, and stones, a considerable deposit of black and evil-smelling sludge. it seemed, as was not uncommonly the case, that a good many things had been happening during my absence. the stone floor of the hall was stencilled with an intricate pattern of black paw-marks, and was further decorated with scraps of torn paper; a cold stench pervaded the smoking-room (which was situated above the turf-house); far away, a sound as of a gramophone in the next world indicated that captain andrew's _affaire de coeur_ was finding an outlet in song. i followed the sounds to the drawing-room, and found andrew and miss longmuir at the piano, in a harmony obviously world-forgetting, though not likely to be by the world forgot. philippa was sitting by the oil stove, and was, i hope, deriving some satisfaction from inhaling its fumes, its effect upon the temperature being negligible. andrew's song was a hungarian ditty, truculent and amorous, and very loud; under cover of it my wife told me that he, assisted by walkin' aisy and the quarrymen, and attended by miss longmuir, had baled out the newly discovered well, and that the quarrymen had exacted whisky to sustain them during the later stages of the process, and that the sludge would be ideal for the roses. they believed the well was filling again beautifully, but they had to leave it because flurry came over with the horse for andrew for the paper-chase, and andrew and meg went out schooling. "what paper-chase?" i interpolated coldly. "oh, they've got one up for monday," said philippa airily. "the children have been tearing up paper all day. i found--rather with horror--that flurry had given them those old letters out of the turf-house to tear up--i said you and i would ride, of course"--she looked at me with apprehension veiled by defiance, and i said it was thoughtful of her.--"but i want to tell you about old mrs. knox," she said, hurrying on. "she told flurry that the well had never been used since the time of the famine, when they got up a soup-kitchen here, and the day after they opened the well she said the servants flew in a body out of the house, like wild geese!" "i don't wonder, if it smelt as it does now," i said. "was that why they flew?" "flurry said he didn't know what lifted them. but flurry never says he doesn't know unless he _does_ know and doesn't want to tell!" the following day was saturday, and for the first time for many weeks a sabbath stillness prevailed on the roof. walkin' aisy was absent; no explanation was forthcoming, and i diagnosed a funeral in the neighbourhood. it was on sunday afternoon that i was roused from my usual meditation--consequent upon sunday roast beef--by the intelligence that mrs. william shanahan wanted to speak to me. mrs. shanahan was a fair freckled woman, with a loud voice and a red face and the reputation of ruling walkin' aisy with a rod of iron. it appeared that walkin' aisy was confined to his bed; that he had had a reel in his head after getting home on friday, and that whatever work it was that young gentleman gave him to do, he wasn't the better of it. "and he was as wake in himself and as troubled in his mind as that he couldn't walk to mass. i told him he should mind the chickens while i'd be out, and when i came in the dog had three of me chickens dead on the floor, and where was himself, only back in the room, and he kneeling there with the two hands up, sayin' his prayers! 'what ails ye?' says i, 'ye old gommoch, that ye'd let the dog kill me chickens?' 'sure, i was sayin' me prayers,' says he; 'that the lord mightn't hear your prayers!' says i. god forgive me, i had to say it!" i recalled her to the question of the chimneys, pointing out that the gable chimney was half down, and could not be left as it was. to this mrs. walkin' aisy replied at great length that william's father had given him an advice not to go in it, and that the father was dark these scores of years, and it was what he blamed for it was the work he done in shreelane house in the time of the famine. it was after that the sight went bandy with him. she declined to offer any opinion as to when walkin' aisy would return to work, and withdrew, leaving me to consider my position under the employers' liability act in the event of her husband's demise, and to wish, not for the first time, that andrew (now strolling at his ease with miss longmuir, reviewing a course for the paper-chase), had been at jericho, or any other resort of the superfluous, before he interfered with the tranquil progress of the chimneys towards dissolution. there were strange lapses at dinner,--delays, omissions, disasters, and julia the parlourmaid had a trembling hand and a general suggestion of nerve-storm. after dinner it was reported to philippa that anthony was not well, and after a prolonged absence she returned with the information that he had had a nightmare, and that there was a rumour in the house that all the servants were going to give warning the following morning. their reason for this was obscure, but was somehow connected with mrs. walkin' aisy's visit, and the fact that the swing-door leading to the turf-house had opened and shut twice, of its own volition. we did not mention these matters to our guests, and retired to rest in perturbation. i admit that at some time during the night, which was a still one, i heard the turf-house door groan on its hinges, and slam. i went downstairs and found nothing; it was certainly unusual, however, that bob, the red setter, had abandoned his lair in the smoking-room, and was spending the night on the mat outside my dressing-room door. next morning philippa, considering that a thrust was better than a parry, held a court of enquiry in the lower regions, and, according to her own report, spoke seriously on the grave responsibility incurred by those who frightened other people about nonsense. julia's version of the proceedings, i heard at a later date. she said that "the misthress spoke to us lovely, and the priest couldn't speak better than her. she told us that the divils in hell wasn't worse than us." part iii it has been said of ireland that the inevitable never happens, and that the impossible invariably occurs. when on monday morning i learned that flurry was to be one of the hares, and beheld him mounted on his best horse, as covered with bags as a postman on christmas day, i recalled the epigram. another confirmation of the law of the unexpected was the fact that meg longmuir, on the "maroan" pony, was his fellow hare, very smart, much elated, and quite unaware that she had been substituted for sally knox at the last moment, in order that she might be as a millstone hung round the neck of flurry. that this arrangement was not what captain larpent had desired was sufficiently apparent to the naked eye: why flurry submitted to it was less obvious. about a dozen riders had been whipped up to take part in this preposterous affair, and were standing about on the grass in front of shreelane, cutting up the turf as much as the hardness of the ground would permit, and making as much noise as a pack of hounds at feeding time. the april sun glared hot, the better part of a north-easterly gale was blowing, the horses had over-eaten themselves with the bread of idleness, and were fat and frisky. "is he any good?" said flurry to me in a low voice, with his eye on andrew, who was sitting, shrouded in gloom and remoteness, on the chestnut horse. "ask miss longmuir," i said. "she was schooling with him on saturday." "i'll have plenty to do minding her, without asking her questions that she couldn't answer," returned flurry. he resumed his survey of andrew. "i wonder will he be able to hold that horse in a snaffle? he catches hold an odd time." "stand by!" said doctor hickey, his watch in his hand. "fifteen seconds more before the hares start!" "well, if larpent goes as big as he talks, he'll do," said flurry, gathering up his reins. the ten minutes of grace ebbed slowly away, and preposterous though i still held the affair to be, i do not deny that i was aware of an inward simmering of impatience. "i'll have the face worn off my watch looking at it if you don't let us start soon!" said miss larkie mcrory to hickey. she was mounted on a long-legged animal that had been summarised by flurry as "the latter end of a car-horse," and was certainly in need of all the time it could get. "don't excite yourself now, or i'll be having to order you a cooling draught!" returned the doctor, but i perceived that he, in common with everyone else, was edging his horse towards the point of departure. "go!" in the riot of the break-away, i was able to think of nothing but of keeping daniel from bucking me over his head, but during the hustle at the avenue gates i observed andrew riding off bernard, and getting to the front with pale and ferocious determination. the "scent" took us along the road; we followed it over a stony bank and across two fields, at steeplechase pace, and then it ceased. by this time any lingering sense of absurdity had ceased also. we cast ourselves feverishly, like hounds; we galloped great circles; someone found the paper again, and yelled like a maniac. we all yelled in response, a variety of yells, from "tally ho" to "cooee," as, like bedlam let loose, we rushed to the discoverer. we were up on high land now, and the wind was whirling in our ears, snatching our voices away to infinity, and blowing up the temperatures of horses and riders like a bellows. it had caught away the torn paper and flung it to leeward, into furze brakes, against the sides of the banks, and checks were many, and the horses, convinced that the hounds were somewhere ahead, pulled double. in the bare fields, with their scanty april grass, everything showed up; we were deceived by white stones, by daisies, by dandelion puff-balls, by goose-feathers; most of all we were deceived by country-people, whom, i have no doubt, flurry had instructed to mislead us. we had had a long check, consequent on a false trail, when, three fields away, andrew held up his hat. "look at him now, running mute!" giggled sally knox in my ear, as we battered down a road. "he's too cross to shout. he's frantic because he's not the hare, and meg longmuir was sent with flurry! and poor flurry, who's going such a nice safe line!" "i suppose we may thank miss longmuir for the safe line?" i responded with some difficulty, because daniel was enjoying himself on the road, according to the idiotic manner of horses. "no! you may thank the chestnut horse!" ejaculated flurry knox's wife, as she hoisted out of the road over a loose wall. remembering that andrew was intended to buy the chestnut horse, the deduction was a simple one. it was also quite clear that, disappointing as it might be, and contrary to the most cherished convention, andrew was going as big as he talked, and even bigger. "'them that's in love is like no one'!" i quoted to mrs. flurry, as captain larpent, taking the shortest way to a drift of paper on a hillside, charged a tall, furze-tufted fence, and got over with a scramble. we followed, less heroically, by a gap, and ascended the hill, with the torn paper scurrying in front of us in the gusty wind. we had now been going for thirty-five minutes, and were all, horses and riders, something blown; miss larkie's car-horse could have been heard down-wind for half a mile, and i would have backed daniel to out-roar any lion in the den. nothing but the checks held us together. doctor hickey, and irving, the district inspector, were taking the matter seriously, and were riding hard to catch andrew, for the honour of the country. bernard shute and two or three other heavy-weights were afoot, dragging their dripping horses over a bank with an up-hill take off; miss mcrory and the car-horse were making an extremely gradual progress in the rear, and philippa had pulled back to give her leads, with an unselfishness that was not only futile, but was also a reproach to me and my fellow-men. we had been going in a big ring, and from the top of the hill we could again see shreelane, below us among its trees. it was there also that we caught the first sight of the hares, now heading for home and safety. the wind had strengthened to half a gale, and the wild and composite yell with which the hounds viewed their quarry was blown back into their throats. the maroan pony had fulfilled her mission as a handicap; twice we saw flurry dismount and pull down a gap; once, at a bank, he got behind her and whipped her over like a peg-top. another field took them to the high road. a puff of white paper fluttered out, and miss longmuir looked back and flourished a defiant whip; they turned, and galloped in a cloud of dust along the road for shreelane. it was not a nice hill to get down in a hurry, and i should think the chestnut horse dreams of it now, somewhere in the level english midlands, after he has over-eaten himself on fat english oats. for my part, i remembered a humble but useful path, that links a little group of cottages with the rest of the world. the paper lay thick on the road in the shelter of the fences; everyone began to ride for a finish, and after a quarter of a mile of pounding in the dust at the heel of the hunt, i considered that daniel and i had satisfied the demands of honour, and ignobly turned in at the back way to the stable yard, permitting the chase to sweep on to the front gates without me. in the stable yard i found several objects of interest. the hares were there, dismounted, very hot, and uncaptured; mrs. knox was there, seated in her phaeton; there was a cluster of servants at the back door; there were mcrorys, leaning on bicycles; there was cecilia shute, in her motor, with unknown rank and fashion billowing in motor veils beside her. all were gazing at a mass of sooty bricks and shattered chimney-pots that lay, scattered wide, in and about the black dredgings of the turf-house well. "that's the gable chimney," said flurry coolly; "it got tired of waiting for walkin' aisy. we heard the roar of it as we came in the front gate!" he turned his mail-bag upside down so that its ultimate dregs were blown far and wide. "how did the chestnut horse go with----?" as if in reply, hoofs clattered outside the yard, and the white nose of the chestnut shot into the opening of the yard gate. he plunged past me, with andrew lying back and tugging at the snaffle. the shreelane yard was fairly spacious, but i began to think that the thing wasn't as funny as it looked. the horse swerved at mrs. knox's phaeton, swerved again as flurry turned him from his stable door with a flourish of the mail-bag. andrew wrenched his head straight for the open back gate, and might have got him out without disaster, had not the widespread ruin of the chimney intervened. the chestnut once more tried to swerve, his legs went from under him, and he fell, striking fire from the cobble stones of the yard. andrew stuck to him to the last instant, but was shot clear, and was flung, head first, into the heap of stones and black mud. it seemed long, long hours between this catastrophe, and a sufficient subsidence of things in general, for me to be able, without inhumanity, to envisage a whisky and soda. old mrs. knox watched me with approval. "i'm tired of looking at young men drinking tea," she commented. (it was mrs. knox's pleasing idiosyncrasy to look upon me as a young man.) "they were like a pack of curates at a school-feast! not that i was ever at a school-feast, thank god!" she added, with an abandoned chuckle. we were sitting in a corner of the dining-room, surrounded by empty cups and crumby plates; tides of tea and of talkers had ebbed and flowed, but mrs. knox had sat on--to hear my personal report of andrew, she said. "upon my honour, he escaped very well! a dislocated shoulder is nothing, and the young lady is there to 'tend the wounded deloraine!'" she paused, and put her head on one side, as if waiting for the prompter. "how does it go? 'she thought some spirit of the sky had done the bold mosstrooper wrong!'" she paused again, and looked at me; the evening light shone on her spectacles, and made them impenetrable. "now i'm going to give you a piece of advice; "'and i'll not take it!' says major yeates, r.m.!" i protested that i had said nothing of the kind. she prodded me in the knee with a goblin finger. "_close that well_! put on the flagstone, and seal it down again!" she fumbled in her shawls, and pulled out a thin old gold chain. "here's the seal, the same one that my father sealed it with at the time of the famine!" i said that i was ready to do anything that she told me, but it would be interesting to know why. mrs. knox detached the seal from her chain, to which it was knotted by something that i darkly suspected to be a bit of bootlace. it was a cornelian seal, made in the grand manner; massively wrought, the gold smooth from age. "i daresay you never heard of major apollo riggs? he drove up to this house one fine day in a coach-and-four. next day the coach-and-four drove away, but major apollo riggs was not in it!" "he found himself a success at shreelane?" i suggested. "not so much with his host as his hostess!" returned mrs. knox portentously. "a duel?" i asked. "he was never seen again, my dear!" replied mrs. knox. (there are moments, in ireland, when this term of affection is used not so much affectionately as confidentially.) at this point the door opened. mrs. knox put the goblin finger on her lips, as philippa, still in her habit, slid into the room. "the patient and meg are extremely self-sufficing," she said, dropping into a chair. "his face is turning all colours of the rainbow, and one eye has disappeared, but the other is full of expression and is fixed on meg!" "there's not much colour about _you_," i said. "you ought to have a whisky and soda." "nonsense!" said philippa, waving me away; "we've got most of the black stuff out of his hair; even his waistcoat pocket was full of it! and bits of the torn paper had stuck to it, like confetti." "that suggests a wedding," i observed. "quite," said philippa. "but the absurd thing was that one of the confetti--obviously a bit of those old letters that the children tore up--had the word 'apollo' on it! it was stuck on to him like a label." mrs. knox clasped her hands, and lay back in her chair. "i said it was, of course, a tribute to his beauty, but meg was not at all amused. she thought it was 'lèse majesté.'" "she'll get over that in time," i said, putting the seal in my pocket. vii when i first met dr. hickey there was a wonderful chandelier in the hotel dining-room. fine bronze it was made of, with mermaids, and tritons, and dolphins flourishing their tails up towards the dingy ceiling-paper, and beaked galleys, on whose prows sat six small lamps, with white china receptacles for paraffin, and smoky brown chimneys. gone were the brave days when each prow had borne a galaxy of tall wax candles; the chandelier might consider itself lucky in that it had even the paraffin lamps to justify its existence, and that it still hung from a ceiling, instead of sharing the last resting-place of its twin brother, in the bed of the tidal river under the hotel windows. james, the hotel waiter, knew the family history of the chandelier, as he knew that of most people and things in the county. i commented upon it to a young gentleman with a pointed beard, who sat next to me at dinner, and said that it looked to me like renaissance. the young gentleman suggested, alternatively, that it looked more like bronze. i did not dispute the point, but i think he found the subject precarious, as he turned to the young lady on his left, and i heard him embark upon a new theme. [illustration: james.] "i was half dead with the toothache all day," he observed. the young lady replied sympathetically that toothache was a fright. "well, indeed, that's true," said james, smoothly entering the conversation from behind my chair. "i got my own share of it. sure there was one time i used to be roaring like a banshee all night with it." "were you so?" said the gentleman, with a wink at me. "that must have been a long time ago, james." "well, indeed, it is too, doctor," replied james meditatively, "going on forty years, i daresay. i went to dublin, and i went to a great dentist that was in it that time, and he pulled all the teeth i had, and he gave me a new set entirely." "oh, my!" said the young lady, "that must have been very expensive." "it was so," said james, not without pride. "twenty pounds i gave him." "that was awful," said the young lady, feelingly; "it was well to be you that had it to spend." "well, it wasn't all out so bad," said james; "sure i only wore them a few times--i wouldn't be bothered with them, and a doctor that was a friend of mine gave me ten pounds for them." "i suppose they were a fit for a patient of his?" said the doctor. "they were a bad fit for me, anyway," returned james, glancing over his shoulder at the clattering operations of his two female subordinates, with the eye of the sergeant-major--the eye that always contains a grievance. "i was a footman with the old lord garretmore that time. sure that was where the chandelier came from. a grand house it was, too--big slobs of marble on the tables, and gold legs under them, and ye'd bog to the knees in the carpets. well, it was the first night after me getting the teeth, there was a gentleman stayed for dinner, and he was to go away by the night train. forty horses were in the stables, and there wasn't one but was out at grass, and i had to go out beating the bushes for an old mare that was round the house always, herself and her foal, to put her under the side car. 'prua! prua!' says i, calling the mare in the dark, and with that the teeth lepped out of my mouth, with respects to you!" "oh, fie!" said the mother of the young lady. "what did you do then, james?" inquired the doctor. "i took the white tie off me, and i tied it to the bush that was next me, for a token, and 'twas that way i got them again the next morning, thanks be to god." having concluded his story, james started on a perfunctory tour of the table with the wine card. he stopped to pull the turf fire together, and, with a furtive eye at the glass over the chimney-piece, he rearranged the long lock of hair that draped his bald pate. it was dyed, of that peculiar shade of chestnut that disdains subterfuge, and the fact and its suggestions were distressing where an old servant was concerned; so also was the manner in which he hobbled on his heels. "his walk's full of corns," said the young doctor, eyeing him not without sympathy. "he's a great old character. i believe they keep him here to talk to the tourists." it is a melancholy fact that in ireland, in these later days, "characters" have become aware of their position, and palpably live up to their reputation. but james was in a class of his own. i said didactically, even combatively, that "characters" were free and easy, but that james was easy without being free. "i'll bet he's not easy in his feet, anyhow!" said the doctor brutally. "have you any more soup there, james?" the mother of the young lady, who had hitherto preserved a silence, broken only by the audible assimilation of her soup, here laid down her spoon and said in cryptic disparagement: "tin!" "well, i'd say it was the best we had yet," said the doctor. "i'd undertake to pull a puppy through distemper with it." "that's the soup she has always for th'assizes," said james. "grand soup it is, and i declare to ye, she makes it out of egg shells and every old rubbish!" the young lady's mother emitted a short laugh, but her empty soup-plate told heavily against her. the meal wore slowly on. a sea fish, of a genus unknown to me, and amazingly endowed with bones, was consumed in distracted silence. "i hear you have a fish shop opened in ballinagar, mrs. m'evoy," remarked the doctor, taking his last fish bone out of action with professional adroitness, and addressing the mother of the young lady, "that's very up-to-date. there wasn't one i met from ballinagar but was bragging of it." "it was the hoolahanes that had it," said mrs. m'evoy. "it's closed." "oh dear, why so?" said the doctor. "why did they do that, i wonder?" "they said that morning, noon, and night people were bothering them for fish," returned mrs. m'evoy, to whom this triumph of the artistic temperament presented no exceptional feature. "unless it might be on a fast day, i'd never ask to taste a bit of fish," remarked james, giving a helping hand to the conversation. "there was a man i knew from this place got his death in liverpool from a bit of fish. it stuck to the upper gum. 'bill,' says he to the one that was with him, 'so help me god,' says he, 'i'm dyin',' says he; and sure that's how he met his death! it was in some grand hotel he was, and he was too shy to give the puff to send out the bit." "i'd like to send that to the 'b.m.j.'," said the doctor gravely. "maybe you could give me the man's name, james?" "there was them that could swear to it," said james, depositing a syphon on the table in a determined manner, "but they were before your day, doctor hickey." "how young he is!" said miss m'evoy archly. "don't be flattering him, james." "indeed i'll not flatter him," returned james, "there's plenty doing that." it was at about this point that a dish containing three roast ducks was placed in front of me. circumstances had decreed that i sat at the end of the table; it was my task to deal with the ducks, and during the breathless and steamy struggle that ensued, i passed out of the conversation, which, indeed, had resolved itself into a more personal affair between dr. hickey and miss m'evoy. it was somewhere in the reposeful period that came with the cheese, that dr. hickey ordered a bottle of port, of which he very handsomely invited the ladies and me to partake. he leaned back in his chair. "was this in the cellar the time of the flood?" he said, putting down his glass. "i don't mean noah's flood, james; you mightn't remember that; but the time the river came up in the town here." "if it was noah's flood itself," said james, instantly accepting combat, "it couldn't get into our cellars. but, faith, it was up in this room you're sitting in, and i had to get up on the table from it, and it ruz to the table, and i had to hang out of the chandelier, and a boat came into the room then and took me out. sure that was the time that the porpoise came up the river, with the dint of the flood, and she was in it for a week, in front of the hotel." "in compliment to the visitors, i suppose?" said the doctor. "and what happened her, james?" "she was in it till a whale came up the river," replied james, with the simplicity of holy writ, "and b'jove he banished her!" "it's a wonder you'd let him treat a lady that way, james," said dr. hickey. it was still twilight when we left the dining-room, and strayed to the open hall door, and out into the september evening. in the east a rose-pink moon was rising in lavender haze, and a faint wind blew from it; the subtle east wind of september, warmed by its journey across the cornfields, turf-scented by the bogs. there was a narrow garden between the hotel and the river, a place where were new and already-neglected flower-beds, and paths heavy with coarse river gravel, and grass that had been cut, not too recently, with a scythe. a thatched summer-house completed the spasmodic effort of the hotel to rise to smartness. the west of ireland cannot be smart, nor should any right-minded person desire that it should be so. dr. hickey and i sat and smoked on the parapet wall above the river, while the slated and whitewashed town darkened into mystery. little lights came slowly out, and behind the town the grey shape of dreelish mountain lowered in uncompromising abruptness, a brooding presence, felt rather than seen. in the summer-house james was lighting a chinese lantern, of a somewhat crumpled and rheumatic outline. "well, now, that's a great notion!" said dr. hickey, with the lethargic and pessimistic humour of his type. "that'll be in the prospectus--'hotel grounds illuminated every night.' i wonder did they buy that at the jumble sale after the fancy fair in the town hall?" we sat there, and the moon and the round red chinese lantern looked at each other across the evening, and had a certain resemblance, and i reflected on the fact that an irishman is always the critic in the stalls, and is also, in spirit, behind the scenes. "look at james now," said the doctor. "he's inviting the ladies out to have coffee in the summer-house. that's very fashionable. i suppose we should go there too." we sat with mrs. and miss m'evoy in the summer-house, and drank something that was unearthly black in the red light, and was singularly unsuggestive of coffee. the seats were what is known as "rustic," and had aggressive knobs in unexpected places; the floor held the invincible dampness of the west, yet the situation was not disagreeable. at the other side of the river men were sitting on a wall, and talking, quietly, inexhaustibly; now and then a shout of laughter broke from one of them, like a flame from a smouldering fire. "these lads are waiting to go back on the night mail," said the doctor; "you wouldn't think they're up since maybe three this morning to come in to the fair." here a railway whistle made a thin bar of sound somewhere out under the low moon, that had now lifted herself clear of the haze. a voice called from the hill-side: "hora-thu! tommeen! let yee be coming on!" the men tumbled on to the road, and hurried, heavy-footed, in the direction of the station. "sure, they've half an hour yet, the creatures," said mrs. m'evoy. "they have, and maybe an hour before they have the pigs shunted," said james, re-entering with a plate of biscuits, adorned with pink and white sugar. "ah! what signifies half an hour here or there on this line!" said dr. hickey. "i'm told there was a lady travelling on it last week, and she had a canary in a cage, and the canary got loose and flew out of the window, and by george, the lady pulled the communication cord, and stopped the train!" "well, now, she showed her sense," said mrs. m'evoy, with an utterance slightly muffled in pink biscuit. "she and the guard went then trying to catch the canary," continued dr. hickey, "and he'd sit till they'd get near him, and then he'd fly on another piece. everyone that was in the train was hanging out of it, and betting on it, from one carriage to another, and some would back the lady and some would back the bird, and everyone telling them what to do." "it's a pity _you_ weren't in it," said miss m'evoy, "they'd have been all right then." "it was that bare bit of bog near bohirmeen," pursued dr. hickey, without a stagger, "not a tree in it. 'if he have a fly left in him at all,' says a chap out of a third smoker, 'ye'll get him in mike doogan's bush.' that was the only bush in the country." "'twas true for him," said james. "well, they got him in the bush," proceeded dr. hickey, "singing away for himself; but they had some trouble crossing the drains. i'm told the guard said the lady lepped like a horse!" "you had it right, all to the singing," commented mrs. m'evoy, advancing as it were to the footlights. "i have the little bird upstairs this minute, and she never sang a note yet!" mrs. m'evoy here permitted herself to subside into fat and deep-seated chuckles, and miss m'evoy, james, and i gave way suitably to our feelings. "well, now, i thought it was a nice idea, the canary to be singing," said dr. hickey, emerging from the situation as from a football scrimmage, in which he had retained possession of the ball. "the next time i tell the story, i'll leave that out, and i can say that the lady that lepped like a horse was mrs. m'evoy. they'll believe me then." "why wouldn't you say the canary was an eagle?" said miss m'evoy. "there used to be plenty eagles in these mountains back here." "well, indeed, i might too," said dr. hickey. "i remember it was somewhere in these parts that an uncle of mine was staying one time, and a man came to the hotel with an eagle to sell to the tourists. my uncle was like mrs. m'evoy here, he was very fond of birds; and the man said the eagle'd be a lovely pet. whatever way it was, he bought it." he paused to light a cigarette, and james pretended to collect the coffee cups. "he gave the eagle to the boots to mind for him," resumed the doctor, "and the boots put it into an empty bedroom. it wasn't more than seven o'clock next morning when my uncle was wakened up, and the waiter came in. 'there's a man in the kitchen, your honour,' says he, 'and he has a great fighting aigle, and he says he'll fight your honour's aigle in the passage.' they had a grand fight between the two o' them in the spare room, and in the end my uncle's eagle went up the chimney, and the man's eagle went out through the glass in the window. my uncle had a nice bill to pay for all that was broken in the room, and in the end he gave the eagle to the zoo." "faith, he did not!" shouted james suddenly. "he left him stuck in the chimbley! and sure it was i that got him out, and meself that sold him to a gentleman that was going to ameriky. sure, i was the waiter!" dr. hickey threw himself back in his rustic chair. "holy smoke! this is no place for me," he said; "every story i have is true in spite of me." soon afterwards the ladies went to bed, and dr. hickey and i smoked on for a time. he explained to me that he was here as "locum" for a friend of his; it wasn't much of a catch, but he was only just after passing for his medical, and you'd nearly go as locum for a tinker's dog after you had three years' grinding in dublin put in. this was a god-forsaken sort of a hole, not a hound within fifty miles, nor anyone that would know a hound if they saw one, but the fishing was middling good. from this point the conversation flowed smoothly into channels of sport, and the dual goals of dr. hickey's ambition were divulged to me. "there was a chap i was at school with--knox his name was--that has a little pack of foxhounds down in the south, and he's as good as promised me i'm to whip in to him if i can get the skebawn dispensary that's vacant now, and i might have as good a chance of it as another." my own ambitions were also, at the moment, dual, being matrimonial, with a resident magistracy attached, but i did not feel it necessary to reveal them. i mentioned that i was having a day's fishing here on my way to donegal to shoot grouse, but did not add that philippa, to whom i was newly engaged, was implicated in the grouse party, still less that it was my intention to meet her the next afternoon at carrow cross junction, an hour away, and proceed with her to the home of her uncle, an hour or so further on. "you might have three hours, or maybe four, to wait at carrow cross," said dr. hickey, as if tracking my thought; "why wouldn't you drive out to the sports at carrow bay? it's only four miles, and there's a regatta there to-morrow, and when the tide goes out they have races on the sands. i believe there's a trotting-match too, and an exhibition of crochet." it did not seem to me that i wanted to go to carrow bay, but it was not necessary to say so. trucks at the station were banging into their neighbours, with much comment from the engine; i thought of tommeen and his comrades, up since a.m., and still waiting to get home, and it suggested the privileges of those who could go to bed. it was over a whisky and soda in the heavily reminiscent atmosphere of the smoking-room that dr. hickey told me he was going to take the ladies to the sports, and mentioned that there would be a train at eleven, and a spare seat on the car from carrow cross. it required no special effort to see the position that i was to occupy in relation to mrs. m'evoy; i followed the diplomatic method of my country; i looked sympathetic, and knew certainly that i should not be there. i leaned out of my window that night, to look at the river, with the moon on it, hustling over the shallows, and thought of the porpoise, who had been so unchivalrously banished by the whale. i also wondered when the english post got in. i was presently aware of a head projecting from a window just below, and a female voice said, as if in continuance of a conversation: "we should coax james for the cold duck to take with us." "that's a good idea," replied the rotund voice of mrs. m'evoy; "we'll get nothing out there that a christian could eat, and there might be that gentleman too." (that gentleman closed one eye.) "come in now, ally! there's an east wind coming in that would perish the crows." the guillotine slam of the sash followed. the river warbled and washed through the stillness; its current was not colder, more clear, than "that gentleman's" resolve that he would not grace the luncheon party at carrow bay sports. i breakfasted late and in solitude, ministered to by one of the female underlings of james; the voice of james himself, i heard distantly, in war and slaughtering, somewhere behind the scenes. the letter that i wanted had not failed me, and i smoked a very honeyed cigarette over it in the garden afterwards. a glimpse of dr. hickey at the hotel door in a palpably new tie, and of mrs. and miss m'evoy in splendour in the hall, broke into my peace. i quietly but unhesitatingly got over the wall of the garden, and withdrew by way of the river bank. when the o'clock train had left i returned to the halcyon stillness of the hotel; my own train left at . ; it was a time favourable, and almost attractive, for letter writing. as i wrote, i heard the voice of james demanding in thunder where was festus o'flaherty, and why hadn't he the chickens plucked. a small female voice replied that the doctor and the ladies had left their lunch after them, and that festus had run up to the station to try would he overtake them with it, and the thrain was gone. "and if it was themselves they left after them," retorted james, still in thunder, "what was that to him?" to this conundrum no answer was attempted; i bestowed upon mrs. m'evoy some transient compassion, and she and her company departed, hull down, below the horizon of my thoughts. a few hours afterwards, i trod the solitudes of carrow cross junction, and saw the train that had brought me there bend like a caterpillar round a spur of hill, and disappear. when i looked round again the little bookstall was shuttered up, and the bookstall lady was vanishing down a flight of steps; the porter had entrenched himself in the goods store; the stationmaster was withdrawn from human ken with the completeness only achievable by his kind. i was suspended in space for three hours, and the indifference of my fellow-creatures was unconcealed. a long walk to nowhere and back again was the obvious resource of the destitute. the town of carrow cross lay in a hollow below the station, with the blue turf smoke stagnant above its muddle of slate and thatched roofs; i skirted it, and struck out into the country. i did not find it attractive. potato fields in september are not looking their best; there were no trees, and loose, crooked walls overran the landscape. the peak of dreelish mountain was visible, but the dingy green country rose high between me and it, like the cope on the neck of a priest. i walked for an hour; i sat on a wall and read philippa's letter again, and found, with a shock, that i had only one cigarette left. a fatuous fear of missing the train turned me back in the direction of the station, slightly hungry, and profoundly bored. i came into the town by a convent, and saw the nuns walking flowingly in twos, under chestnut trees; asceticism in its most pictorial aspect, with the orange leaves and the blue september haze, and the black robes and white headgear. i wondered how they managed to go on walking neatly to nowhere and back again with such purpose, and if they felt as jaded as i, and as little enlivened by the environs of carrow cross. the town was an unprepossessing affair of two or three streets, whitewash and thatch squeezed between green and gold pubs, like old country-women among fashionable daughters. everything was closed; as i looked along the empty street an outside car drawn by a dun pony turned into it at high speed, the pony forging with a double click-clack. as the car swung towards me some one flourished a stick, some one else a red parasol. "we got a bit tired waiting for the sports," dr. hickey said, as he assisted mrs. m'evoy to alight at a house labelled lynch's railway hotel, in royal blue; "it seemed that the tide wasn't going out as fast as the committee expected. it might be another hour or more before the race-course would be above water, and we thought we might as well come on here and get something to eat at the hotel." "it has the appearance of being closed," said mrs. m'evoy, in a voice thinned by famine. "that might be a fashion it has in the afternoon, when themselves does be at their dinner," said the car-driver. the front door was certainly closed, and there was neither knocker nor bell, nothing but a large well-thumbed keyhole. dr. hickey hammered with his stick; nothing happened. "they're gone to the races so," said the car-driver. in the silence that followed it seemed that i could hear the flagging beat of mrs. m'evoy's heart. "wait awhile," said dr. hickey; "the window isn't bolted!" the sill was no more than two feet from the ground, the sash yielded to pressure and went up; dr. hickey dived in, and we presently heard him assail the front door from inside. it was locked, and its key had apparently gone to the races. i followed dr. hickey by way of the window, so did miss m'evoy; we pooled our forces, and drew her mamma after us through the opening of two foot by three, steadily, as the great god pan drew the pith from the reed. we found ourselves in a small sitting-room, almost filled by a table; there was a mature smell of cabbage, but there was nothing else to suggest the presence of food. we proceeded to the nether regions, which were like a chapter in a modern realistic novel, and found a sickly kitchen fire, the horrid remains of the lynch family breakfast, an empty larder, and some of the home attire of the race-goers, lying, as the tree lies, where it fell. "there's a sort of a butcher in the town," said dr. hickey, when the search-parties had converged on each other, empty-handed, "maybe we could cook something----" "if it was even a bit of salt pork--" said mrs. m'evoy, seizing the poker and attacking the sleepy fire. "let you get some water, and i'll wash the plates," said miss m'evoy to dr. hickey. i looked at my watch, saw that i had still an hour and a half to play with, and departed to look for the butcher. neither by sign-board nor by shop front did the carrow cross butcher reveal himself. i was finally investigating a side street, where the houses were one-storeyed, and thatched, and wholly unpromising, when a heavy running step, that might have been a horse's, thundered behind me, and a cumbrous pale woman, with the face of a fugitive, plunged past me, and burst in at a cottage door like a mighty blast of wind. a little girl, in tears, thudded barefooted after her. the big woman turned in the doorway, and shrieked to me. "thim's madmen, from th' asylum! come inside from them, for god's sake!" i looked behind me up the street, and saw a small, decorous party of men, flanked by a couple of stalwart keepers in uniform. one of the men, a white-faced being in seedy black, headed them, playing an imaginary fiddle on his left arm, and smiling secretly to himself. whether the lady had invited me to her house as a protector, or as a refugee, i did not know: she herself had vanished, but through the still open door i saw, miraculously, a fragment or two of meat, hanging in the interior. i had apparently chanced upon the home of the carrow cross butcher. a greasy counter and a chopping-block put the matter beyond doubt; i beat upon an inner door: a wail of terror responded, and then a muffled voice: "come in under the bed to me, chrissie, before they'd ketch ye!" there was nothing for it but to take from a hook a grey and white fragment that looked like bacon, place half-a-crown on the counter, and depart swiftly. "i gave a few of the asylum patients leave to go to the sports," said dr. hickey, a little later, when we were seated between the large bare table and the wall of the little sitting-room, with slices of fried pork weltering on our plates. "i saw the fellow waltzing down the street. ah! he's fairly harmless, and they've a couple o' keepers with them anyway." "the only pity was that you left the half-crown," said mrs. m'evoy; "a shilling was too much for it." mrs. m'evoy was considerably flushed, and had an effective black smear on her forehead, but her voice had recovered its timbre. there was a tin of biscuits on the table, there was a war-worn brown teapot, and some bottles of porter; it was now four hours since i had eaten anything; in spite of the cold and clear resolve of the night before, i was feeding, grossly yet enjoyably, with dr. hickey and his friends. "this is a temperance hotel for the past year," remarked dr. hickey, delicately knocking off the head of a porter bottle with the sitting-room poker. "that's why it was upstairs i found the porter. i suppose they took the corkscrew to the sports with them." "how did they lose the license at all?" said mrs. m'evoy; "i thought there wasn't a house in carrow cross but had one." "it was taken from them over some little mistake about selling potheen," replied dr. hickey, courteously applying the broken neck of the bottle to mrs. m'evoy's tumbler. "the police came to search the house, and old lynch, that was in bed upstairs, heard them, and threw a two-gallon jar of potheen out of the top back window, to break it. the unlucky thing was that there was a goose in the yard, and it was on the goose it fell." "the creature!" said miss m'evoy, "was she killed?" "killed to the bone, as they say," replied the doctor; "but the trouble was, that on account of falling on the goose the jar wasn't broken, so the bobbies got the potheen." "supposing they summons you now for the porter!" said mrs. m'evoy, facetiously, casting her eye through the open window into the bare sunshiny street. "they'll have summonses enough at carrow bay to keep them out of mischief," returned dr. hickey. "it's a pity now, major, you didn't patronise the sports. they might have put you on judging the cakes with mrs. m'evoy." "why then, the one they put on with me was the man they had judging the vegetables," said mrs. m'evoy, after a comfortable pull at the contraband porter. "'that's a fine weighty cake,' says me lad, weighing a sponge-cake on his hand. 'we'll give that one the prize.'" "i wish you brought it here with you," said her daughter, "as weighty as it was." "they put _me_ judging the row-boats," said dr. hickey, "but after the third race i had to give up, and put five stitches in one of the men that was in the mark-boat." i said that the mark-boat ought to have been a fairly safe place. "safe!" said dr. hickey. "it was the hottest corner in the course. i thought they were sunk twice, but they might have been all right if they hadn't out-oars and joined in the race on the second round. they got in first, as it happened, and it was in the course of the protest that i had to put in the stitches. it was a good day's sport, as far as it went." "ah, there's no life in a regatta without a band," said miss m'evoy languidly, with her elbows on the table and her cup in her hand. "now ringsend regatta's sweet!" "i'm afraid miss m'evoy didn't enjoy herself to-day," said dr. hickey. "of course she's used to so much attention in dublin----" "it's kind of you to say that," said miss m'evoy; "i'm sure you're quite an authority on dublin young ladies." "is it me?" said dr. hickey; "i'd be afraid to say boo to a goose. but i've a brother that could tell you all about them. he's not as shy as i am." "he must be a great help and comfort to you," returned miss m'evoy. "he's very romantic," said dr. hickey, "and poetical. he was greatly struck with two young ladies he met at the ringsend regatta last month. he mistook their address, someway, and when he couldn't find them, what did he do but put a poem in the papers--the agony column, y'know----" "we'd like to hear that," said mrs. m'evoy, putting her knife into the salt with unhurried dexterity. "i forget it all, only the last verse," said dr. hickey, "it went this way: 'you are indeed a charming creature, perfect alike in form and feature, i love you and none other. oh, letitia--here's your mother!'" as dr. hickey, his eyes modestly on his plate, concluded the ode, i certainly intercepted a peculiar glance between the ladies. "i call that very impident," said mrs. m'evoy, winking at me. "it was worth paying a good deal to put that in print!" commented miss m'evoy unkindly. "but that was a lovely regatta," she continued, "and the music and the fireworks were grand, but the society's very mixed. do you remember, m'ma, what happened to mary and me that evening, the time we missed you in the dark?" "indeed'n i do," said mrs. m'evoy, her eyes still communing with her daughter's, "and i remember telling you it was the last evening i'd let you out of my sight." "it was a gentleman that picked up my umbrella," began miss m'evoy artlessly. dr. hickey dropped his knife on the floor, and took some time to pick it up. "and he passed the remark to me that it was a nice evening," went on miss m'evoy. "'it is,' said i. now, m'ma, why wouldn't i give him a civil answer?" "that's according to taste," said mrs. m'evoy. "well indeed i didn't fancy his looks at all. it was pitch dark only for the fireworks, but i thought he had a nasty kind of a foreign look, and a little pointed beard on him too. if you saw the roll of his eye when the green fire fell out of the rockets you'd think of mephistopheles----" "there's no doubt mephistopheles was one of shakespeare's grandest creations," said dr. hickey hurriedly. his eyes besought my aid. it struck me that this literary digression was an attempt to change the conversation. miss m'evoy resumed her narrative. "'that's a pretty flower you have in your button-hole,' said he. 'it is,' said i." "you didn't tell him a great deal he didn't know," said her mother. "'maybe you might give it to me?' said he. 'maybe i might not!' said i. 'and where do you live?' said he. 'percy place,' says mary, before you could wink. anyone would have to believe her. 'upon my soul,' said he, 'i'll have the pleasure of calling upon you. might i ask what your name is?' 'o'rooney,' says mary, 'and this is my cousin, miss letitia gollagher.' well, when mary said 'gollagher,' i _burst!_" miss m'evoy here put down her cup, and to some slight extent repeated the operation. "i suppose the foreign gentleman told you his own name then?" said dr. hickey, whose complexion had warmed up remarkably. "he did not," said miss m'evoy; "but perhaps that was because he wasn't asked, and it was then m'ma came up. i can tell you he didn't wait to be introduced!" "i have a sister-in-law living in percy place," said mrs. m'evoy, passing her handkerchief over her brow, and addressing no one in particular, "and it was some day last month she was telling me of a young man that was knocking at all the doors down the street, and she thought he was a collector of some sort. he came to her house too, and he told the girl he was looking for some ladies of the name of gollagher or o'rooney." she paused, and regarded dr. hickey. "i wonder did he find them?" asked dr. hickey, who was obviously being forced on to the ropes. "i thought you might be able to tell us that!" said mrs. m'evoy, delivering her knock-out blow with the suddenness that belongs to the highest walks of the art. miss m'evoy, with equal suddenness, uttered a long and strident yell, and lay back in her place, grasping my arm as she did so, in what i am convinced was wholly unconscious sympathy. she and i were side by side, facing the window, and through the window, which, as i have mentioned, was wide open, i was aware of a new element in the situation. it was a figure in blue in the street outside; a soft and familiar blue, and it bore a parasol of the same colour. the figure was at a standstill; and very blue, the burning blue of tropical heavens, were the eyes that met mine beneath the canopy of the parasol. even before my own had time to blink i foreknew that never, in time or in eternity, should i be able to make philippa accept thoroughly my explanation. philippa's explanation was extremely brief, and was addressed rather to the empty street of carrow cross than to me, as i crawled by her side. there had been, she said, half an hour to wait, and as i was not at the station--the blue eyes met mine for a steely moment--she had gone for a little walk. she had met some horrid drunken men, and turned into another street to avoid them, and then---- a brimming silence followed. we turned up the road that led to the station. "there are those men again!" exclaimed philippa, coming a little nearer to me. in front of us, deviously ascending the long slope, was the asylum party; the keepers, exceedingly drunk, being assisted to the station by the lunatics. viii the bosom of the mcrorys since the day when fate had shipwrecked us at the end of the temple braney shrubbery, and flung us, dripping, into the bosoms of the mcrorys, we had been the victims of an indissoluble friendship with the family. this fulfilled itself in many ways. gratitude, what is known as common gratitude (which is merely a hollow compliance with the voice of conscience), impelled us to lunch mr. and mrs. mcrory, heavily and elaborately (but without any one to meet them); to invite the whole family to a lawn-tennis party (and the whole family came); and, at other people's tennis parties, to fawn upon them (when it was no longer possible to elude them). it was a despicable position, and had i at all foreseen, when the picnic sank at temple braney pier, that the result would have been dinner-parties, i should unhesitatingly have left philippa to drown. the intimacies imposed by common gratitude had, under the healing hand of time, become less acute, and might, indeed, have ceased to affect us, had not fate again intervened, and cemented the family friendship in the most public way possible. there befell a harvest festival in skebawn church, with a bishop, and an anthem, and a special collection. to it the mcrorys, forsaking their own place of worship, came in power, and my wife, very superfluously, indicated to mrs. mcrory a seat in our pew. the pew is a front one, and mrs. mcrory became at once a figure-head to the rest of the congregation--a buxom figure-head, upholstered tightly in royal blue satin, that paled the ineffectual fires of the pulpit dahlias, and shouted in a terrible major chord with the sunflowers in the east window. she creaked mysteriously and rhythmically with every breath; a large gold butterfly, poised on an invisible spring, quivered and glittered above her bonnet. it was while waiting for the service to begin that philippa was inspired to whisper to mrs mcrory some information, quite immaterial, connected with the hymns. the next moment i perceived that mrs. mcrory's butterfly had fixed its antennæ into some adjunct of my wife's hat that was at once diaphanous and sinewy, with the result that the heads of the two ladies were locked together. a silent struggle ensued; the butterfly's grappling-irons held, so also did the hat-trimming, and philippa and mrs. mcrory remained brow to brow in what seemed to be a prolonged embrace. at this point philippa showed signs of collapse; she said that mrs. mcrory's nose, glowing like a ruby within two inches of her own, made her hysterical. i affected unconsciousness, while my soul thirsted for an axe with which to decapitate one or both of the combatants, and subsequently to run amok among the congregation, now, as the poet says, "abashlessly abandoned to delight." the butterfly's vitals slowly uncoiled, and were drawn out into a single yet indomitable strand of gold wire; the bishop was imminent, when a female mcrory in the pew behind (known to the fancy as "larkie") intervened with what were, i believe, a pair of manicure scissors, and the incident closed. it was clear that our blood-brotherhood with the mcrorys was foreordained and predestined. we evaded two invitations to dinner, but a third was inescapable, even though an alarming intimacy was foreshadowed by the request that we should come "in a very quiet way." "do they expect us to creep in in tennis shoes?" i demanded. "i think it only means a black tie," said philippa, with the idea that she was soothing me. "if i have to go to a mcrory free-and-easy, i shall not act as such," i returned, slamming myself into my dressing-room, and dragging forth ceremonial attire. as, with a docility that i was far from feeling, i followed my wife into the drawing-room at temple braney, and surveyed the semicircle of mcrorys and unknown notabilities (summarised as "friends from dublin") that silently awaited us, i felt that neither freedom nor ease would be my lot. but few things in life are quite as bad as one expects them to be--always excepting sea-sickness. in its dreary circuit of the room, my eye met that of my old friend miss bobby bennett, of the curranhilty hunt, niece of its master, and consultant and referee in all its affairs. my friendship with miss bennett was of an ideal nature; when we met, which was seldom, we were delighted to see one another; in the intervals we forgot one another with, i felt sure, an equal completeness. her social orbit was incalculable; she resembled a fox of whom i heard an earth-stopper say that you "couldn't tell any certain place where he wouldn't puck out." whether it was at punchestown, or at a skebawn parish tea, or judging cakes and crochet at an agricultural show, wherever she appeared it was with the same air of being on top of the situation and of extracting the utmost from it. to me befell the onerous task of taking the lady of the house in to dinner, but upon my other hand sat miss bennett (squired by a friend from dublin of apparently negligible quality), and before i had recovered from the soup--a hell-broth of liquid mustard that called itself mulligatawny--i found that to concentrate upon her was no more than was expected of me by both ladies. mrs. mcrory's energies were indeed fully engrossed by the marshalling of a drove of heated females, who hurried stertorously and spasmodically round the table, driven as leaves before the wind by fierce signals from their trainer. opposite to me sat that daughter of the house whose manicure scissors had terminated the painful episode of the butterfly. i had always maintained that she was the prettiest of the mcrorys, and it was evident that irving, the new district inspector of r.i.c., who sat beside her, shared my opinion. he was a serious, lanky young man, and at such moments as he found himself deprived of miss mcrory's exclusive attention, he accepted no alternative, and devoted himself austerely to his food. miss bennett's intention was, i presently discovered, to hunt with flurry knox's hounds on the following day: she had brought over a horse, and it became clear to me that her secondary intention was to return without it. "larkie mcrory's going to take up hunting," she said in her low swift voice. "the new d.i. hunts, you know." miss bennett's astute grey eyes rested upon the young lady in question, and returned to me laden with inference. "he's got a horse from a farmer for her to ride to-morrow--goodness knows what sort of a brute it is!--i hope she won't break her neck. she's the best of the lot. if the old man had sense he'd buy my mare for her--he's full of money--and i'd let her go cheap, too, as i have a young one coming on." it is worthy of mention that i have never known miss bennett's stable composed of anything save old ones to go cheap and young ones coming on. i asked her what she would give me if i didn't tell mr. mcrory that her mare was touched in the wind. "i'll give you in charge for defamation of character," replied miss bennett, with speed comparable only to the dart of an ant-eater's tongue. "anything else you'd like to know? but look at larkie now, i ask of you! quick!" i did as desired, and was fortunate enough to see miss mcrory in the act of putting a spoonful of salt in mr. irving's champagne, what time he was engaged in repulsing one of mrs. mcrory's band of flaming ministers, who, with head averted in consultation with a collaborator, was continuously offering him melted butter, regardless of the fact that he had, at the moment, nothing in front of him but the tablecloth. "there's miss larkie's dublin manners for you," said miss bennett, and passed on to other themes. i should say theme, because, speaking broadly, miss bennett had but one, and all roads sooner or later led to it. during the slow progress of the meal i was brought up to date in the inner gossip of the curranhilty country. i learned that mrs. albert dougherty had taken to riding astride because she thought it was smart, and it was nothing but the grab she got of the noseband that saved her from coming off every time she came down a drop. i asked for that mr. tomsy flood whose career had twice, at vital points, been intersected by me. "ah, poor tomsy! he took to this, y'know," miss bennett slightly jerked her little finger, "and he wouldn't ride a donkey over a sod of turf. they sent him out to south africa, to an ostrich farm, and when the people found he couldn't ride they put him to bed with a setting of ostrich eggs to keep them warm, and he did that grand, till some one gave him a bottle of whisky, and he got rather lively and broke all the eggs. they say it's a lay-preacher he's going to be now!" across a dish of potatoes, thrust at me for the fourth time, i told miss bennett that it was all her fault, and that she had been very unkind to tomsy flood. miss bennett gave me a look that showed me what she still could do if she liked, and replied that she supposed i was sorry that she hadn't gone to south africa with him. "i suppose we'll all be going there soon," she went on. "uncle says if home rule comes there won't be a fox or a protestant left in ireland in ten years' time; and he said, what's more, that if _he_ had to choose it mightn't be the protestants he'd keep! but that was because the dissenting minister's wife sent in a claim of five pounds to the fowl fund, and said she'd put down poison if she didn't get it." not thus did philippa and old mcrory, at their end of the table, fleet the time away. old mcrory, as far as i could judge, spoke not at all, but played tunes with his fingers on the tablecloth, or preoccupied himself with what seemed to be an endeavour to plait his beard into a point. on my wife's other hand was an unknown gentleman, with rosy cheeks, a raven moustache, and a bald head, who was kind enough to solace her isolation with facetious stories, garnished with free and varied gestures with his knife, suggestive of sword-practice, all concluding alike in convulsive tenor laughter. i was aware, not unpleasantly, that philippa was bearing the brunt of the mcrory bean-feast. when at length my wife's release was earned, and the ladies had rustled from the room in her wake, with all the conscious majesty of the mantle department, i attempted some conversation with my host, but found that it was more considerate to leave him to devour unmolested the crystallised fruits and chocolates that were not, i felt quite sure, provided by mrs. mcrory for the master of the house. i retired upon the d.i., my opinion of whom had risen since i saw him swallow his salted champagne without a change of countenance. that he addressed me as "sir" was painful, but at about my age these shocks have to be expected, and are in the same category as lumbago, and what my dentist delicately alludes to as "dentures." the young district inspector of irish constabulary has wisdom beyond his years: we talked profoundly of the state of the country until the small voice of old mcrory interrupted us. "major," it said, "if you have enough drink taken we might join the ladies." most of the other gallants had already preceded us, and as i crossed the hall i heard the measured pounding of a waltz on the piano: it created an impulse, almost as uncontrollable as that of spurius lartius and herminius, to dart back to the dining-room. "that's the way with them every night," said old mcrory dispassionately. "they mightn't go to bed now at all." old mcrory had a shadowy and imperceptible quality that is not unusual in small fathers of large families; it always struck me that he understood very thoroughly the privileges of the neglected, and pursued an unnoticed, peaceful, and observant path of his own in the background. i watched him creep away in his furtive, stupefied manner, like a partly-chloroformed ferret. "'oh, well is thee, thou art asleep!'--or soon will be," i said to myself, as i turned my back on him and faced the music. i was immediately gratified by the spectacle of philippa, clasped to the heart of the gentleman who had been kind to her at dinner, and moving with him in slow and crab-like sidlings round the carpet. her eyes met mine with passionate appeal; they reminded me of those of her own fox-terrier, minx, when compelled to waltz with my younger son. the furniture and the elder ladies had been piled up in corners, and the dancing element had been reinforced by a gang of lesser mcrorys and their congeners, beings who had not been deemed worthy of a place at the high table. immured behind the upright piano sat mrs. mcrory, thumping out the time-honoured "blue danube" with the plodding rhythm of the omnibus horse. i furtively looked at my watch; we had dined at . , and it was now but a quarter to ten o'clock. not for half an hour could we in decency withdraw, and, finding myself at the moment beside miss larkie mcrory, it seemed to me that i could do no less than invite her to take the carpet with me. i am aware that my dancing is that of ten years ago, which places it in the same scrap-heap class as a battleship of that date, but miss mcrory told me that she preferred it, and that it exactly suited her step. it would be as easy to describe the way of a bird in the air as to define miss mcrory's step; scrap-heap or no, it made me feel that i walked the carpet like a thing of life. we were occasionally wrecked upon reefs of huddled furniture, and we sustained a collision or two of first-rate magnitude: after these episodes my partner imperceptibly steered me to a corner, in which i leaned heavily against whatever was most stable, and tried to ignore the fact that the floor was rocking and the walls were waving, and that it was at least two years since i had exceeded in this way. it was in one of these intervals that miss mcrory told me that she was going hunting next day, and that he--her long hazel-grey eyes indicated mr. irving, now slowly and showily moving a partner about the room--had got a horse for her to ride, and she had never hunted before. she hoped to goodness she wouldn't fall off, and (here she dealt me the fraction of a glance) she hoped i'd pick her up now and again. i said that the two wishes were incompatible, to which she replied that she didn't know what incompatible meant; and i told her to ask mr. irving whether he had found that salt and champagne were compatible. "i thought you only wore that old eyeglass for show," replied miss mcrory softly, and again looked up at me from under her upcurled irish eyelashes; "it was out of spite he drank it! a girl did that to my brother curly at a dance, and he poured it down her back." "i think mr. irving treated you better than you deserved," i replied paternally, adventuring once more into the tide of dancers. when, some five minutes afterwards, i resigned my partner to irving d.i., i felt that honour had been satisfied, and that it was now possible to leave the revel. but in this i found that i had reckoned, not so much without my host, as without my fellow-guest. philippa, to my just indignation, had blossomed into the success of the evening. having disposed of the kind-hearted gentleman (with the pink cheeks and the black moustache), she was immediately claimed by mr. de lacey mcrory, the eldest son of the house, and with him exhibited a proficiency in the latest variant of the waltz that she had hitherto concealed from me. the music, like the unseen orchestra of a merry-go-round, was practically continuous. scuffles took place at intervals behind the upright piano, during which music-books fell heavily upon the keys, and one gathered that a change of artist was taking place, but the fundamental banging of the bass was maintained, and the dancing ceased not. the efforts of the musicians were presently reinforced by a young lady in blue, who supplied a shrill and gibbering _obligato_ upon a beribboned mandoline, and even, at some passionate moments, added her voice to the _ensemble_. "will this go on much longer?" i asked of miss bennett, with whom i had withdrawn to the asylum of a bow window. "d'ye mean miss cooney o'rattigan and her mandoline?" replied miss bennett. "i can tell you it was twice worse this afternoon when she was singing italian to it. i never stayed here before, and please goodness i never will again; the wardrobe in my room is crammed with mrs. mcrory's summer clothes, and the chest of drawers is full of apples! ah, but after all," went on miss bennett largely, "what can you expect from a cob but a kick? didn't tomsy flood find a collection of empty soda-water bottles in his bed the time he stayed here for the wedding, when you found him stitched up in the feather bed!" [illustration: miss cooney o'rattigan.] i said that the soda-water bottles had probably prepared him for the ostrich eggs, and miss bennett asked me if it were true that i had once found a nest of young mice in the foot of my bed at aussolas, because that was the story she had heard. i was able to assure her that, on the contrary, it had been kittens, and passing from these pleasing reminiscences i asked her to come forth and smoke a cigarette in the hall with me, as a preliminary to a farther advance in the direction of the motor. i have a sincere regard for miss bennett, but her dancing is a serious matter, with a cromwellian quality in it, suggestive of jack boots and the march of great events. the cigarettes were consolatory, and the two basket-chairs by the fire in the back-hall were sufficiently comfortable; but the prospect of home burned like a beacon before me. the clock struck eleven. "they're only beginning now!" said miss bennett, interpreting without resentment my glance at it. "last night it was near one o'clock in the morning when they had high tea, and then they took to singing songs, and playing 'are you there, mike?' and cock-fighting." i rose hastily, and began to search for my overcoat and cap, prepared to plunge into the frosty night, when miss bennett offered to show me a short way through the house to the stableyard, where i had left the car. "i slipped out that way after dinner," she said, picking up a fur-lined cloak and wrapping it about her. "i wanted to make sure the mare had a second rug on her this cold night." i followed miss bennett through a wheezy swing-door; a flagged passage stretched like a tunnel before us, lighted by a solitary candle planted in its own grease in a window. a long battle-line of bicycles occupied one side of the passage; there were doors, padlocked and cobwebbed, on the other. a ragged baize door at the end of the tunnel opened into darkness that smelt of rat-holes, and was patched by a square or two of moonlight. "this is a sort of a lobby," said miss bennett. "mind! there's a mangle there--and there are oars on the floor somewhere----" as she spoke i was aware of a distant humming noise, like bees in a chimney. "that sounds uncommonly like a motor," i said. "that's only the boiler," replied miss bennett; "we're at the back of the kitchen here." she advanced with confidence, and flung open a door. a most startling vista was revealed, of a lighted room with several beds in it. children's faces, swelled and scarlet, loomed at us from the pillows, and an old woman, with bare feet and a shawl over her head, stood transfixed, with a kettle in one hand and a tumbler in the other. miss bennett swiftly closed the door upon the vision. "my gracious heavens!" she whispered, "what on earth children are those? i'm sure it's mumps they have, whoever they are. and how secret the mcrorys kept it!--and did you see it was punch the old woman was giving them?" "we might have asked her the way to the yard," i said, inwardly resolving to tell philippa it was scarlatina; "and she might have given us a light." "it was this door i should have tried," said my guide, opening another with considerable circumspection. sounds of hilarity immediately travelled to us along a passage; i followed miss bennett, feeling much as if i were being led by a detective into chinatown, san francisco. a square of light in the wall indicated one of those inner windows that are supposed to give light mutually to room and passage, and are, as a matter of fact, an architect's confession of defeat. farther on a door was open, and screams of laughter and singing proceeded from it. i admit, without hesitation, that we looked in at the window, and thus obtained a full and sufficient view of the _vie intime_ of the temple braney kitchen. a fat female, obviously the cook, was seated in the midst of a remarkably lively crowd of fellow-retainers and camp-followers, thumping with massive knuckles on a frying-pan, as though it were a banjo, and squalling to it something in an unknown tongue. "she's taking off miss cooney o'rattigan!" hissed miss bennett, in ecstasy. "she's singing italian, by way of! and look at those two brats of boys, vincent and harold, that should have been in their beds two hours ago!" masters vincent and harold mcrory were having the time of their lives. one of them, seated on the table, was shovelling tipsy-cake into his ample mouth with a kitchen spoon; the other was smoking a cigarette, and capering to the squalls of the cook. as noiselessly as two bats miss bennett and i flitted past the open door, but a silence fell with a unanimity that would have done credit to any orchestra. "they saw us," said miss bennett, scudding on, "but we'll not tell on them--the creatures!" an icy draught apprised us of an open door, and through it we escaped at length from the nightmare purlieus of the house into the yard, an immense quadrangle, where moonlight and black shadows opposed one another in a silence that was as severe as they. temple braney house and its yard dated from what may be called the stone age in ireland, about the middle of the eighteenth century, when money was plenty and labour cheap, and the barons of temple braney, now existent only in guidebooks, built, as they lived, on the generous scale. we crossed the yard to the coach-house in which i had left my motor: its tall arched doorway was like the mouth of a cave, and i struck a match. it illuminated a mowing-machine, a motor-bicycle, and a flying cat. but not my car. the first moment of bewilderment was closed by the burning of my fingers by the match. "are you sure it was here you left it?" said miss bennett, with a fatuity of which i had not believed her capable. the presence of a lady was no doubt a salutary restraint, but as i went forth into the yard again, i felt as though the things i had to leave unsaid would break out all over me like prickly heat. "it's the medical student one," said miss bennett with certainty, "the one that owns the motor-bike." the yard and the moonlight did not receive this statement with a more profound silence than i. "i'm sure he won't do it any harm," she went on, making the elementary mistake of applying superficial salves to a wound whose depths she was incapable of estimating. "he's very good about machinery--maybe it's only round to the front door he took it." as miss bennett offered these consolations i saw two small figures creep from the shadows of the house. their white collars shone in the moonlight, and, recognising them as the youngest members of the inveterate clan of mcrory, i hailed them in a roar that revealed very effectively the extent of my indignation. it did not surprise me that the pair, in response to this, darted out of the yard gate with the speed of a pair of minnows in a stream. i pursued, not with any hope of overtaking them, but because they were the only clue available, and in my wake, over the frosty ground, in her satin shoes, followed that sound sportswoman, miss bennett. the route from the stable-yard to the front of temple braney house is a long and circuitous one, that skirts a plantation of evergreens. at the first bend the moonlight displayed the track of a tyre in the grass; at the next bend, where the edge was higher, a similar economy of curve had been effected, and that the incident had been of a fairly momentous nature was suggested by the circumstance that the tail lamp was lying in the middle of the drive. it was as i picked it up that i heard a familiar humming in the vicinity of the hall door. "he didn't go so far, after all," said miss bennett, somewhat blown, but holding her own, in spite of the satin shoes. i turned the last corner at a high rate of speed, and saw the dignified georgian façade of the house, pale and placid in the moonlight; through the open hall door a shaft of yellow light fell on the ground. the car was nowhere to be seen, yet somewhere, close at hand, the engine throbbed and drummed to me,--a _cri de coeur_, as i felt it, calling to me through the accursed jingle of the piano that proceeded from the open door. "where the devil----?" i began. even as i spoke i descried the car. it was engaged, apparently, in forcing its way into the shrubbery that screened one end of the house. the bonnet was buried in a holly bush, the engine was working, slowly but industriously. the lamps were not lighted, and there was no one in it. "those two imps made good use of their legs, never fear them!" puffed miss bennett; "the 'cuteness of them--cutting away to warn the brother!" "what's this confounded thing?" i said fiercely, snatching at something that was caught in the handle of the brake. miss bennett snatched it in her turn, and held it up in the moonlight, while i stilled the fever of the engine. "dublin for ever!" she exclaimed. "what is it but the streamers of miss cooney's mandoline! there's the spoils of war for you! and it's all the spoils you'll get--the whole pack of them's hid in the house by now!" from an unlighted window over the hall door a voice added itself to the conversation. "god help the house that holds them!" it said, addressing the universe. the window was closed. "that's old mcrory!" said miss bennett in a horrified whisper. again i thought of chinatown, sleepless, incalculable, with its infinite capacity for sheltering the criminal. "--but, darling," said philippa, some quarter of an hour later, as we proceeded down the avenue in the vaulted darkness of the beech-trees (and i at once realised that she had undertaken the case for the defence), "you've no reason to suppose that they took the car any farther than the hall door." "it is the last time that it will be taken to _that_ hall door," i replied, going dead slow, with my head over the side of the car, listening to unfamiliar sounds in its interior--sounds that did not suggest health. "i should like to know how many of your young friends went on the trip----" "my dear boy," said philippa pityingly, "i ask you if it is likely that there would have been more than two, when one of them was the lady with the mandoline! and," she proceeded with cat-like sweetness, "i did not perceive that you took a party with you when you retired to the hall with your old friend miss bennett, and left me to cope single-handed with the mob for about an hour!" "whether there were two or twenty-two of them in the car," i said, treating this red herring with suitable contempt, "i've done with your mcrorys." i was, very appropriately, in the act of passing through the temple braney entrance gates as i made this pronouncement, and it was the climax of many outrages that the steering-gear, shaken by heaven knows what impacts and brutalities, should suddenly have played me false. the car swerved in her course--fortunately a slow one--and laid her bonnet impulsively against the temple braney gate pillar, as against a loved one's shoulder. as we regained our composure, two tall forms appeared in the light of the head lamps, and one of them held up his hand. i recognised a police patrol. "that's the car right enough," said one of them. he advanced to my side. "i want your name, please. i summons you for furious driving on the high road, without lights, a while ago, and refusing to stop when called on to do so. go round and take the number, m'caffery." when, a few days later, the story flowed over and ran about the country, some things that were both new and interesting came to my ears. flurry knox said that bobby bennett had sold me her old mare by moonlight in the temple braney yard, and it was a great credit to old mcrory's champagne. mrs. knox, of aussolas, was told that i had taken mrs. mcrory for a run in the car at one o'clock in the morning, and on hearing it said "de gustibus non est disputandum." some one, unknown, repeated this to mrs. mcrory, and told her that it meant "you cannot touch pitch without being disgusted." mrs. cadogan, my cook, reported to philippa that the boy who drove the bread-cart said that it was what the people on the roads were saying that the major was to be fined ten pounds; to which mrs. cadogan had replied that it was a pity the major ever stood in temple braney, but she supposed that was laid out for him by the lord. ix put down one and carry two the promise of that still and moonlit december night, wherein we had bean-feasted with the mcrorys, was shamelessly broken. the weather next morning was a welter of wind and mist, with rain flung in at intervals. the golden fox on the stable weathercock was not at peace for a moment, facing all the southern points of the compass as if they were hounds that held it at bay. for my part, i do not know why people go out hunting on such days, unless it be for the reason that many people go to church, to set an example to others. philippa said she went because she had done her hair for riding before she could see out of the window--a fiction beneath the notice of any intelligent husband. i went because i had told my new groom, wilson (an english disciplinarian), that i was going, and i was therefore caught in the cogs of the inexorable wheel of stable routine. i also went because i nourished a faint hope that i might be able to place before the general public, and especially before flurry knox, an authentic first version of the mcrory episode. moreover, i had a headache; but this i was not going to mention, knowing that the sun never sets upon the jests consecrated to after-dinner headaches. as we rode away from shreelane, and felt the thick small rain in our faces, and saw the spray blown off the puddles by the wind, and heard the sea-gulls, five miles inland, squealing in the mist overhead, i said that it was preposterous to think of hunting at lonen hill in such weather, and that i was going home. philippa said that we might as well go on to the meet, to exercise the horses, and that we could then come straight home. (i have a sister who has said that i am a lath painted to look like iron, and that philippa is iron painted to look like a lath.) the meet was in shelter, the generous shelter of lonen hill, which interposed itself between us and the weather. there is just space for the road, between the shore of lough lonen and the southern face of the hill, that runs precipitously up into the sky for some six hundred feet, dark with fir-trees, and heather, and furze, fortified with rock--a place renowned as a fastness for foxes and woodcock (whose fancies as to desirable winter residences generally coincide). one would have thought that only a pack of monkeys could deal with such a covert, but hounds went through it, and so did beaters--or said they did. we found the hounds waiting in an old quarry under the side of the hill, and, a little farther on, a very small and select company of waterproofs was huddled under the branches of a fir-tree that hung over the road. as we neared them i recognised miss bennett's firm and capable back: she was riding the black mare that she had come over to "pass on" to old mcrory. it was philippa who pointed out that she was accompanied by miss larkie mcrory, seated on a stout and shaggy animal, whose grey hindquarters were draped by the folds of its rider's voluminous black macintosh, in a manner that recalled the historic statue of the iron duke. farther on, mrs. flurry and her mother, the redoubtable lady knox, were getting out of a motor and getting themselves on to their horses. "there's room under the umbrella for mrs. yeates!" called out miss bennett hospitably, "but the major must find one for himself, and a very big one, too!" "we could make room for him here," said miss larkie mcrory, "if he liked to come." i maintained, i hope, an imperturbable demeanour, and passed on. "who is that?" said lady knox, approaching me, on her large and competent iron grey. i informed her, briefly, and without prejudice. "oh, one of that crew," said lady knox, without further comment. lady knox is not noted for receptive sympathy, yet this simple statement indicated so pleasingly our oneness of soul in the matter of the mcrorys, that i was on the verge of flinging overboard the gentlemanlike scruples proper to a guest, and giving her the full details of last night's revel. at this moment, however, her son-in-law came forth from the quarry with his hounds, and his coadjutors, dr. hickey and michael, and moved past us. "yeates!" he called out, "i'd be obliged to you if you'd take that point up on the hill, on the down-wind side, where he often breaks." he looked at me with a serious, friendly face. "he won't break _down_, you know--it's only motors do that." this witticism, concocted, no doubt, in the seclusion of the quarry, called for no reply on my part--(or, to be accurate, no suitable reply presented itself). there was an undoubted titter among the waterproofs; i moved away upon my mission at a dignified trot: a trot is seldom dignified, but daniel has dignity enough for himself and his rider. daniel stands sixteen hands two inches in his stockings, of which he wears one white one, the rest of his enormous body being of that unlovely bluish-dun colour to which a dark bay horse turns when clipped. his best friend could not deny that he "made a noise"; his worst enemy was fain to admit that he was glad to hear it in front of him at a nasty place. some one said that he was like a settled religious faith, and no lesser simile conveys the restful certainty imparted by him. it was annoying, no doubt, to hear people say, after i had accomplished feats of considerable valour, that that horse couldn't make a mistake, and a baby could ride him; but these were mere chastenings, negligible to the possessor of a settled religious faith. i trotted on through the rain, up a steep road seamed with watercourses, with lonen hill towering on my left, and a lesser hill on my right. looking back, i saw flurry dismount, give his horse to a boy, and clamber on to the wall of the road: he dropped into the wood, and the hounds swarmed over after him, looking like midgets beside the tremendous citadel that they were to attack. hickey and michael, equally dwarfed by the immensities of the position, were already betaking themselves through the mist to their allotted outposts in space. five-and-twenty couple of hounds would have been little enough for that great hill-side; flurry had fifteen, and with them he began his tough struggle through the covert, a solitary spot of red among pine-stems, and heather, and rocks, cheering his fifteen couple with horn and voice, while he climbed up and up by devious ways, seemingly as marvellously endowed with wind as the day itself. i cantered on till, at the point where the wood ended, it became my melancholy duty to leave the road and enter upon the assault of the hill. i turned in at a gap beside the guardian thorn-bush of a holy well, on whose branches votive rags fluttered in the wind, and addressed daniel to his task of carrying thirteen stone up an incline approximating to a rise of one in three. a path with the angles of a flash of lightning indicated the views of the local cow as to the best method of dealing with the situation. daniel and i accepted this, as we had done more than once before, and we laboured upwards, parallel with the covert, while the wind, heavy with mist, came down to meet us, and shoved against us like a living thing. we gained at length a shelf on the hill-side, and halting there in the shelter of a furzy hummock, i applied myself to my job. from the shelf i commanded a long stretch of the boundary wall of the wood, including a certain gap which was always worthy of special attention, and for a quarter of an hour i bent a zealous and travelling gaze upon the wall, with the concentration of a professor of a higher thought society. as is not unusual in such cases, nothing happened. at rare intervals a hint of the cry of hounds was carried in the wind, evanescent as a whiff from a summer garden. once or twice it seemed to swing towards me, and at such moments the concentration of my eyeglass upon the gap was of such intensity that had the fox appeared i am confident that he would instantly have fallen into a hypnotic trance. as time wore on i arrived at the stage of obsession, when the music of the hounds and the touches of the horn seemed to be in everything, the wind, the streams, the tree branches, and i could almost have sworn hounds were away and running hard, until some vagrant voice in the wood would dispel the mirage of sound. this was followed by the reactionary period of pessimism, when i seemed to myself merely an imbecile, sitting in heavy rain, staring at a stone wall. half an hour, or more, passed. "i'm going out of this," i said to myself defiantly; "there's reason in the roasting of eggs." it seemed, however, my duty to go up rather than down, and i coerced daniel into the bed of a stream, as offering the best going available. it led me into a cleft between the hill-side and the wall of the covert, which latter was, like a thing in a fairy tale, changing very gradually from a wall into a bank. i ascended the cleft, and presently found that it, too, was changing its nature, and becoming a flight of stairs. daniel clattered slowly and carefully up them, basing his feet, like sir bedivere, on "juts of slippery crag that rang sharp-smitten with the dint of arméd heels." we had reached the top in safety when i heard a thin and wavering squeal behind me, and looking back saw miss larkie mcrory ascending the rocky staircase on the grey cob, at a speed that had obviously, and legitimately, drawn forth the squeal. "oh, gracious! the brute! i can't stop him!" she cried as she rushed upon me. the grey cob here bumped into daniel's massive stern, rebounded, and subsided, for the excellent reason that no other course was open to it. miss mcrory's reins were clutched in a looped confusion, that summoned from some corner of my brain a memory of the sultan's cipher on the order of the medjidie: her hat was hanging down her back, and there was a picturesqueness about her hair that promised disaster later on. her hazel eyes shone, and her complexion glowed like a rose in rain. "mr. irving's fit to be tied!" she continued. "his horse jumped about like a mad thing when he saw those awful steps----!" sounds of conflict and clattering came from below. i splashed onwards in the trough between the hill and the fence, and had emerged into a comparatively open space with my closely attendant mcrory, when the impassioned face of mr. irving's meath mare shot into view at the top of the steps. the water in the trough was apparently for her the limit of what should or could be endured. she made a crooked spring at the hill-side, slipped, and, recognising the bank as the one civilised feature in a barbarous country, bounced sideways on to the top of it, pivoted there, and sat down backwards into a thicket of young ash and hazel trees. a succession of short yells from miss mcrory acclaimed each phase of the incident; mr. irving's face, as he settled down amongst the branches, was as a book where men might read strange matters, not of an improving nature. it was probably the reception accorded to the bay mare by the branches and briars in which she had seated herself that caused her to return to the top of the bank in a kangaroo-bound, as active as it was unexpected. horses can do these things when they choose, but they seldom choose. from the top of the bank she dropped into the trough, and joined us, with her nerves still in a state of acute indignation, and less of her rider in the saddle than is conventional, but a dinge in his pot-hat appeared to be the extent of the damage. miss mcrory's eye travelled from it to me, but she abstained from comment. it was the eye of a villain and a conspirator. i had by no means forgotten the injuries inflicted on me by her brothers, nor did i forget that flurry had said that there wasn't one of the family but was as clever as the devil and four times as unscrupulous. yet, taken in conjunction with the genuineness of her complexion, and with the fact that irving was probably twenty years my junior, "i couldn't"--as the song says--"help smiling at mcrory o'more" (behind the back of young mr. irving, d.i.). it transpired that irving, from some point of vantage below, shared, it would appear, with miss mcrory, had seen the hounds running out of the top of the wood, and had elected to follow me. he did not know where any one was, had not heard a sound of the horn, and gave it as his opinion that flurry was dead, and that trying to hunt in this country was simply farcical. he bellowed these things at me in his consequential voice as we struggled up the hill against the immense weight of wind, in all the fuss, anxiety, and uncertainty out of which the joys of hunting are born. it was as we topped the ultimate ridge that, through the deafening declamations of the wind, i heard, faint as a bar of fairy music, distant harmonies as of hounds running. the wind blew a hole in the mist, and we had a bird's-eye view of a few pale-green fields far below: across one of them some pigmy forms were moving; they passed over a dark line that represented a fence, and proceeded into the heart of a cloud. "that's about the limit," shouted irving, dragging at his mare's mouth, as she swerved from a hole in the track. "it's only in this god-forsaken country that a fox'd go away in the teeth of a storm like this!" to justify to mr. irving the disregard of the lonen hill foxes for the laws of the game was not my affair. it seemed to me that in piloting him and miss mcrory i was doing rather more than humanity had any right to expect. i have descended lonen hill on various occasions, none of them agreeable, but never before with an avalanche travelling hard on my heels--a composite avalanche that slid, and rushed, and dropped its hind-legs over the edge at bad corners, and was throughout vocal with squeals, exclamations, inquiries as to facts of which providence could alone be cognisant, and thunderous with objurgations. the hill-side merged at length into upland pasture, strange little fields, composed partly of velvet patches, like putting-greens, predominantly of nightmare bunkers of rocks and furze. we rushed downwards through these, at a pace much accelerated by the prevalence of cattle gaps; the bay mare, with her head in the air, zigzagging in bounds as incalculable as those of a grasshopper; the grey cob, taking sole charge of miss mcrory, tobogganing with her hind feet, propping with her fore, and tempering her enthusiasm with profound understanding of the matter. finally, a telegraph-post loomed through the fog upon us, and a gate discovered itself, through which we banged in a bunch on to the high road. a cottage faced us, with a couple of women and an old man standing outside it. to them we put the usual question, with the usual vehemence (always suggestive of the king's troopers in romance, hotly demanding information about a flying rebel). "i didn't see a fox this long while," replied the old man deliberately, "but there was a few jocks went west the road a while ago." the king's troopers, not specially enlightened, turned their steeds and went in pursuit of the jocks. a stone gap, flung in ruins among black hoof-marks, soon gave a more precise indication, and we left the road, with profound dubiety on my part as to where we were going and how we were going to get there. the first fence decided the matter for irving, d.i. it was a bank on which slices of slatey stone had been laid, much as in germany slabs of cold sausage are laid upon bread. the meath mare looked at it but once, and fled from it at a tangent; the grey pony, without looking at it, followed her. daniel selected an interval between the slabs, and took me over without comment. filled by a radiant hope that i had shaken off both my companions, i was advancing in the line of the hoof-tracks, when once more i heard behind me on the wind cries as of a storm-driven sea-gull, and the grey cob came up under my stirrup, like a runaway steam pinnace laying itself beside a man-o'-war. miss mcrory was still in the saddle, but minus reins and stirrup; the wind had again removed her hat, which was following her at full stretch of its string, like a kite. had it not been for her cries i should have said, judging by her face, that she was thoroughly enjoying herself. having achieved daniel's society the cob pulled up, and her rider, not without assistance from me, restored her hat, reins, and stirrup to their proper spheres. i looked back, and saw irving's mare, still on the farther side of the fence, her nose pointing to the sky, as if invoking the protection of heaven, and i knew that for better for worse miss mcrory was mine until we reached the high road. no doubt the thing was to be: as one of our own poets has sung of emer and cuchulain, "all who read my name in erin's story would find its loving letters linked with" those of mcrory. the paraphrase even rhymed--another finger-mark of fate. yet it was hard that, out of all the possible, and doubtless eager, squires of the hunting-field i should have been chosen. the hoof-tracks bent through a long succession of open gaps to a farmyard, and there were swallowed in the mire of a lane. i worked the lane out for every inch it was worth, with the misty rain pricking my face as it were with needles, and the intention to go home at the earliest possible opportunity perfecting itself in my heart. but the lane, instead of conducting us to the high road, melted disastrously into a turf bog. i pulled up, and the long steady booming of the sea upon the rocks made a deep undertone to the wind. there was no voice of hound or horn, and i was on the point of returning to the farmhouse when the mist, in its stagey, purposeful way, again lifted, and laid bare the sky-line of a low hill on our left. a riderless horse was limping very slowly along it, led by something that seemed no higher than a toadstool. obviously we were on the line of the hunt, and obviously, also, it was my duty to enquire into the matter of the horse. i turned aside over a low bank, hotly followed by the grey cob, and the wail to which i was now becoming inured. as miss mcrory arrived abruptly at my side, she cried that she would have been off that time only for the grab she got of his hair. (by which i believe she meant the mare's mane.) fortune favoured us with broken-down fences; we overtook the horse, and found it was flurry knox's brown mare, hobbling meekly in tow of a very small boy. in one of her hind fetlocks there was a clean, sharp cut that might have been done with a knife. in answer to my questions the small boy pointed ahead. i polished my eyeglass, and, with eyes narrowed against the wind, looked into the south-west, and there saw, unexpectedly, even awfully near, the atlantic ocean, dingy and angry, with a long line, as of battle-smoke, marking its assault upon the cliffs. between the cliffs and the hill on which we were standing a dark plateau, striped with pale grey walls, stretched away into the mist. "there's the huntsman for ye," squeaked the little boy, who looked about six years old. i descried at a distance of perhaps a quarter of a mile a figure in a red coat, on foot, in the act of surmounting one of the walls, accompanied by a hovering flock of country boys. "the dogs is out before him," pursued the little boy at the full pitch of his lungs. "i seen the fox, too. i'll go bail he has himself housed in the coosheen grohogue by now." "gracious!" said miss mcrory. i said he probably had a simpler telegraphic address, and that, no matter where he was, it was now my duty to overtake mr. knox and offer him my horse; "and you," i added, "had better get this little boy to show you the way to the road." miss mcrory replied confidently that she'd sooner stay with me. i said, as well as i remember, that her preference was highly flattering, but that she might live to regret it. miss mcrory answered that she wished i wouldn't be spying at her through that old glass of mine; she knew well enough she was a show, and her hair was coming down, and she'd as soon trust herself to the cat as to that little urchin. as i made my way downwards over the knife-edged ridges of rock and along their intervening boggy furrows, i should myself have been grateful for the guidance of the cat. even the grey cob accepted the matter as serious, and kept the brake hard on, accomplishing the last horrid incident of the descent--a leap from the slant of the hill on to the summit of a heathery bank--without frivolity, even with anxiety. we had now arrived at the plateau above the cliffs--a place of brown, low-growing ling, complicated by boggy runnels, and heavily sprinkled with round stones. the mist was blowing in thicker than ever, flurry and his retinue were lost as though they had never been, and the near thunder of the breakers, combined with the wind, made an impenetrable din round me and miss mcrory. after perhaps a mile, in the course of which i got off several times to pull down loose walls for the benefit of my companion, i discovered the rudiments of a lane, which gradually developed into a narrow but indubitable road. the rain had gone down the back of my neck and into my boots: i determined that if flurry had to finish the run on all-fours, i would stick to the lane until it took me to a road. what it took me to was, as might have been foreseen in any county cork bohireen, a pole jammed across it from wall to wall and reinforced by furze-bushes--not a very high pole, but not one easy to remove. i pulled up and looked dubiously from it to miss mcrory. "d'ye dare me?" she said. "i bet you sixpence you take a toss if you do," i replied firmly, preparing to dismount. "done with you!" said miss mcrory, suddenly smiting the grey cob with a venomous little cutting whip (one that probably dated from the sixties, and had for a handle an ivory greyhound's head with a plaited silver collar round its neck). i have seldom seen a pole better and more liberally dealt with, as far as the grey cob's share of the transaction went, and seldom, indeed, have i seen a rider sail more freely from a saddle than miss mcrory sailed. she alighted on her hands and knees, and the cob, with the sting of the whip still enlivening her movements, galloped on up the lane and was lost in the mist. "well, you won your sixpence," said miss mcrory dauntlessly, as i joined her. "i suppose you're delighted." i assured her with entire sincerity that i was very much the reverse, and proceeded at high speed in pursuit of the cob. the result of this excursion--a fairly prolonged one--was the discovery that the lane led into a road, and that it was impossible to decide in which direction the fugitive had gone. i returned in profound gloom to my young lady, and found her rubbing herself down with a bunch of heather. "so you couldn't ketch her!" she called out as i approached. "what'll we do now?" she was evidently highly amused. "i'll tell the peeler it was your fault. you dared me!" my reply need not be recorded: i only know it was by no means up to the standard to which miss mcrory was accustomed. i took what seemed to be the only possible course, and established her seated sideways on my saddle, with her foot--and it is but fair to say, a very small foot--in the leather instead of the stirrup, and her right hand knotted in daniel's mane. i held the off stirrup, and splashed beside her in the ruts and mud. the mist was thicker than ever, the wind was pushing it in from the sea in great masses, and miss mcrory and i progressed onward in a magic circle of some twenty yards in diameter, occupied only by herself and me, with daniel thrown in as chaperon. on arriving at the road i relied on the wind for guidance, and turning to the right, let it blow us in what was, i trusted, our course. it was by this time past three o'clock, we were at least nine or ten miles from home, and one of my boots had begun to rub my heel. there was nothing for it but to keep on as we were going, until we met something, or some one, or died. it is worthy of record that in these afflicting circumstances miss larkie mcrory showed a staying power, attained, probably, in the long and hungry bicycle picnics of her tribe, that was altogether commendable. not for an instant did she fail to maintain in me the belief that she found me one of the most agreeable people she had ever met, a little older, perhaps, than irving, d.i., but on that very account the more to be confided in. it was not until the pangs of hunger recalled to me the existence of my sandwiches that i discovered she had no food with her, nor, as far as could be gathered, had she had any breakfast. "sure they were all snoring asleep when i started. i just got a cup o' tea in the kitchen----" this, i suppose, was a point at which i might suitably have said something incisive about the feats of her brethren on the previous night, but with deplorable weakness i merely offered her my sandwiches. miss mcrory replied that she'd fall off in a minute if she were to let go the mane, and why wouldn't i eat them myself? i said if there were any shelter left in ireland i would wait till i got there, and we could then decide who should eat them. Ã�ons of mist and solitude ensued. i must have walked for an hour or more, without meeting anyone except one old woman, who could only speak irish, and i had begun to feel as if my spur were inside my boot instead of outside, when i became aware of something familiar about the look of the fences. it was not, however, until i felt shelter rising blessedly about us, and saw the thorn bush with the rags hanging from it, that i realised that our luck had turned, and we had blundered our way back to the holy well under the side of lonen hill. the well was like a tiny dripping cave, about as big as a beehive, with a few inches of water in it; a great boulder stood guard over it, and above it stooped the ancient and twisted thorn bush. it seemed indicated as a place of rest, none the less that my heel was by this time considerably galled by my boot. miss mcrory glissaded from my saddle into my arms, and was assisted by me to deposit herself on a flat stone beside the well, stiff, wet, but still undefeated. we shared my sandwiches, we drank whisky mixed with the water of the holy well, and miss mcrory dried her face with her handkerchief, and her complexion looked better than ever. daniel, slowly and deliberately, ate the rags off the thorn bush. i have been at many picnics that i have enjoyed less. by the time we had got to the gingerbread biscuits i had discovered that mr. irving thought she had talked too much to me after dinner last night, and that it was a wonder to her how men could be so cross about nothing. i said i was sorry she called it nothing, at which she looked up at me and down again at the gingerbread, and did not reply. after this i felt emboldened to ask her why she had been called so inappropriate a name as "larkie." miss mcrory agreed that it was indeed a silly old name, and that it was a friend of one of her brothers, a mr. mulcahy, who had said that she and her sisters were "'lorky little gurls with lorge dork eyes.' he had that way of speaking," she added, "because he thought it was grand, and he always kept his watch at english time. he said he ran over to london so often it wasn't worth while to change it." she herself had never been out of ireland, and she supposed she'd never get the chance. i said that when she married mr. mulcahy she could keep her watch at irish time, so as to equalise things. miss mcrory suggested that i should give her a watch as a wedding present, and that, english or irish time, it would be all hours of the night before we were home. i realised with a slight shock that the position had indeed become inverted when one of the house of mcrory had to remind me, after about four hours in her undiluted society, of the flight of time. it was now past four, which was bad enough, and a still greater shock awaited me in the discovery that i was dead lame, the interval of repose having been fatal to my damaged heel. i have always asserted, and shall continue to do so to my dying day, that the way out of the difficulty was suggested by miss mcrory. i mounted daniel, miss mcrory ascended the boulder by the holy well, announcing that she was as stiff as fifty crutches, and that once she got up she'd be there for life. the thing was done somehow, thanks to the incomparable forbearance of daniel, and with miss mcrory seated behind me on his broad back, and her arms clasped round my waist, i once more, and very cautiously, took the road. daniel continued to conduct himself like a gentleman, but considering how precarious was the position of miss mcrory, it was unnerving to feel her shaken by silent and secret laughter. "you'll fall off," i warned her. she replied by a further paroxysm, and asked me what size i took in stays--she supposed about forty inches. dusk was now an accomplished fact: thickened with fog and rain, it was even turning to darkness as we descended the long hill. but, humanly speaking, the end was in sight. there was, i knew, a public-house a couple of miles farther on, where a car might be hired, and there i proposed to bid a long farewell to miss larkie mcrory, and to send her home by herself, to have rheumatic fever, as i assured her. we moved on and on, at a careful foot-pace: we were out in the wind again, and it was very cold. it was also quite dark. silence fell upon us, and, after a time, the sustained pressure of miss mcrory's hat-brim against my shoulder suggested that it was the silence of exhaustion, if not of sleep. i thought of her with compassion. i believe i formulated her to myself as a poor little girl, and found myself asserting with defiance to imaginary detractors that no one could say she hadn't pluck, and that, in spite of her family, she really had a soul to be saved. again we found ourselves in shelter, and a greater darkness in the darkness told that we were in the lee of a wooded hill. i knew where i was now, and i said to miss mcrory that the pub was just round the corner, and she replied at once that that was where they always were, in dublin anyway. she also said she thought she heard horses' hoofs coming up behind us. i pushed on. we turned the corner, and were immediately struck blind by the twin glare of the lamps of a motor, that lay motionless, as in ambush, at the side of the road. even the equanimity of daniel was shattered; he swung to one side, he drifted like a blown leaf, and miss mcrory clung to me like a knapsack. as we curveted in the full glare of the limelight, i was aware of a figure in a pot-hat and a vast fur coat standing near the motor. even as i recognised lady knox three or four muddy hounds trailed wearily into the glare, and a voice behind me shouted, "'ware horse!" flurry came on into the light: there was just room in me for a sub-conscious recognition of the fact that he was riding the missing grey cob, and that this was a typical thing, and one that might have been expected. at the hunt dinner that took place soon afterwards some one sang a song, one that i have ceased to find amusing. the first verse runs as follows: "throttin' to the fair, me and moll moloney, sittin', i declare, on a single pony----" by a singular coincidence, the faces of all those present turned towards me. x the comte de pralines "i had forgotten how nice london is!" purred philippa, as we moved beautifully across the threshold of bill cunningham's club, and were conducted to the lift with a tender deference that was no more than was due to our best clothes. the ladies' tea-room at bill's club was a pleasant place, looking forth, high above the noise, upon trees that were yellow in the hazy october afternoon. in a very agreeable bow-window were lady derryclare and the tea-table, and with her were her son, and a small and ornamental young man, who was introduced to us as mr. simpson-hodges. "front name john, known to a large circle of admirers as 'mossoo,'" supplemented bill, whose hands were so clean that i found it difficult to recognise him. "so called because of the incredible circumstance that he can speak french, in spite of the best public school education," said lady derryclare. "when i think of the money that has been wasted on you! you good for nothing creature!" "it's more his looks," pursued bill, "his dark foreign beauty----" "these humorists!" said mr. simpson-hodges indulgently, showing a set of white teeth under a diminutive black moustache. "please, lady derryclare, let's talk of something pleasant." "ask him about the chickens you made him get from the chicken farmers for the dance his regiment gave," said bill to his mother. "oh, that was rather a bad business," said mr. simpson-hodges apologetically, with an eye on philippa, who, in a new hat, was looking about five-and-twenty. "i'm sure no one wants to hear about it." "mossoo ran the supper and he ordered three brace," said bill, "but they never turned up till the week after the show! the postman was viewed coming up to the mess towing something after him on a long painter. the painter was superfluous. the chickens would have followed him at a trot if he had been kind to them. they kept them for the drag, i believe. didn't you, mossoo? he's one of the whips, you know." "they'd have been quite useful," admitted mr. simpson-hodges. "how interesting to be a whip!" said philippa, looking at him with egregious respect. "rather too interesting, sometimes," replied simpson-hodges, expanding to the glance in a way not unfamiliar to me. "last time we were out the fellow with the drag started from the cross-roads where we were going to meet, and was asinine enough to take it a bit down the road before he went into the country, and, as it happened, we were bringing the hounds up to the meet by that particular road. they simply put down their heads and ran it heel for all they were worth! the first whip and i galloped our best, but we couldn't get to their heads, and we all charged into the middle of the meet full-cry!" "oh! i wish i had been there!" said philippa ardently. "we wished we were anywhere else," replied mr. simpson-hodges; "the brigadier was there, and everybody. we heard all about it afterwards, i can tell you!" "that ought to have happened in mr. knox's country, major yeates!" said lady derryclare, whose interest in fox-hunting was more sympathetic than technical. "we don't run drags, lady derryclare," i said reproachfully, but lady derryclare had already entered upon another topic. simpson-hodges, however, did not end there. a week afterwards philippa and i crept home, third class, with full trunks and empty pockets, sustained only by the aphorism, evolved by my wife, that economies, and not extravagances, are what one really regrets. it was approaching the end of november before we next heard of simpson-hodges. the derryclares had come down for their first woodcock shoot, and bill swooped over one morning in the big daimler and whirled us back with him over the forty intervening miles of bog and mountain, to shoot, and to dance on the carpet after dinner, and to act charades; to further, in short, the various devices for exercising and disciplining a house party. mr. john simpson-hodges was there, no less ornamental than in london, and as useful as he was ornamental. he shot well, he danced beautifully, and he made of the part of a french count in a charade so surprising a work of art that people said--as is the habit of people--that he ought to be making a hundred a week on the stage. before we left the derryclares philippa told me that she had arranged with "those boys"--by which she referred to mr. cunningham and the french count--to come over next week and have a hunt with flurry knox's hounds. something whispered to me that there was more in this than met the eye, but as they were to provide their own mounts the position was unassailable, and i contented myself with telling her that a predilection for the society of the young was one of the surest signs of old age. it was not till we were all seated at breakfast on the morning of the meet (which was to be at castle knox), that it was suggested, with all the spontaneity of a happy thought, by bill, that "mossoo" should be introduced to the members of the hunt as a frenchman who was unable to speak english. "call him the comte de pralines," said philippa, with suspicious promptitude. "you can call him napoleon buonaparte if you like," i said defiantly, "_i_ shall stay at home!" "all the curranhilty people will be there," said philippa softly. the thought of introducing the comte de pralines to miss bobbie bennett was certainly attractive. "i refuse to introduce him to lady knox," i said with determination, and knew that i had yielded. a meet at castle knox always brought out a crowd; there were generally foxes, and always luncheon, and there was a touch of the g.o.c. about lady knox that added a pleasing edge of anxiety, and raised the meet to something of the nature of a full-dress parade. i held to my point about lady knox, and did nothing more compromising than tremble in the background, while bill cunningham presented the comte de pralines to the lady of the house, supplementing the presentation with the statements that this was his first visit to ireland, and that he spoke no english. the comte de pralines, in the newest of pink coats, and the whitest of breeches, and the most glittering of boots and spurs, stood on the step below lady knox, with the bridle of his hireling over his arm, and his shining silk hat in his hand. still with his hat in his hand, and looking, as miss larkie mcrory whispered to me, "as pretty as a christmas card," the count rippled forth a stream of mellifluous french, commenting upon the beauty of the day, of the place, of the scene. lady knox's face deepened to so apoplectic a crimson, and her eyes became so fixed that i, watching the scene apprehensively, doubted if it were not my duty to rush at her and cut open her hunting-stock. when the count ceased, having, as far as i could gather, enquired as to when she had last been to auteuil, and if she had ever hunted in france, lady knox paused, and said very slowly: "er--_j'espère que nous aurons un bon jour aujourdhui_." then, rapidly, to me, "take your friend in for a drink, major yeates." my heart bled for her, and also quaked for myself, but i was into it now, up to my chin. during the next ten minutes bill cunningham, feebly abetted by me, played the game remorselessly, sparing neither age nor sex. in the hall, amidst the sloe-gins and the whiskies and sodas (to which the count, for a foreigner, took remarkably kindly), introductions slipped between cup and lip, poisoning the former and paralysing the latter. the victims took it variously; some sought refuge in bright smiles and large foreign gestures; some, in complete mental overthrow, replied in broken english to mossoo's sugared periods; all were alike in one point, they moved as swiftly as might be, and as far as possible, out of the immediate neighbourhood of the comte de pralines. philippa, who, without any solid attainment, can put up a very good bluff in french, joined spasmodically in these encounters, alternately goading mossoo to fresh outrages, and backing out when the situation became too acute. i found her, affecting to put her sandwiches into the case on her saddle, and giving way to her feelings, with her face pressed against her mare's shoulder. "i introduced him to bobbie bennett," she said brokenly; "and he asked her if she spoke french. she looked at me as if she were drowning, and said, '_seulement très petit_'!" i said, repressively, that lady knox could see her, and that people would think, firstly, that she was crying, and secondly, that she was mad. "but i am mad, darling!" replied my wife, turning a streaming face to me. i informed her of my contempt for her, and, removing myself from her vicinity, collected myself for the introduction of the count to flurry knox and dr. hickey. by this time most of the field were mounted, and the comte de pralines bent to his horse's mane as he uncovered with grave courtesy on his presentation to the master and the first whip, and proceeded to express the profundity of his gratification at meeting an irish master of hounds. the objects of the attention were palpably discomposed by it; flurry put a finger to his cap, with a look at me expressive of no surrender; dr. hickey, in unconscious imitation of the count, bowed low, but forgot about his cap. "he has no english, i'm told," said flurry, eyeing the count suspiciously. i stopped myself on the verge of bowing assent, so infectious was the grace of the pralines manner. "is he come to buy horses for the german army?" went on flurry. (it need hardly be said that this occurred before the war.) i explained that he was french. "you wouldn't know what these foreigners might be up to," returned mr. knox, quite unconvinced. "i'm going on now----" he too moved expeditiously out of the danger zone. the field straggled down the avenue, and progressed over tracts of tussocky grass in the wake of the hounds, towards the plantation that was the first draw. the keeper was outside the wood, with the assurance that there was a score of foxes in it, and that they had the country ate. "maybe they'll eat the hounds, so," said flurry. "let you all stay outside. you can be talking french now for a bit----" i looked round to see who were availing themselves of this permission. the count had by this time been introduced to miss larkie mcrory; philippa was apparently acting as interpreter, and miss mcrory was showing no disposition to close the interview. the field had withdrawn, and had formed itself into a committee-meeting on the count. [illustration: miss larkie mcrory.] it was warm and sunny in the shelter of the wood. although the time was november there were still green leaves on some of the trees; it was a steamy day after a wet night, and i thought to myself that if the hounds _did_ run--here came a challenge from the wood, answered multitudinously, and the next minute they were driving through the laurels towards the entrance gates, with a cry that stimulated even the many-wintered daniel to capers quite unbefitting his time of life, or mine. the castle knox demesne is a large one, and being surrounded by a prohibitively high and coped wall, it is easier to find a fox there than to get away with one. mighty galloping on the avenues followed, with interludes in the big demesne fields, where every gate had been considerately left open, and in which every horse with any pretensions to _savoir faire_ stiffened his neck, and put up his back, and pulled. the hounds, a choir invisible, carried their music on through the plantations, with whimpering, scurrying pauses, with strophe and anti-strophe of soprano and bass. sometimes the cry bore away to the demesne wall, and some one would shout "they're away!" and the question of the front gate versus the western gate would divide us like a sword. twice, in the undergrowth, above the sunk fence that separated us from the wood, the quick, composed face of the fox showed itself; at last, when things were getting too hot in the covert, he sprang like a cat over the ditch, and flitted across the park with that gliding gait that dissimulates its own speed, while i and my fellows offered a painful example of the discordance of the human voice when compared with that of the hound, and five or six couple pitched themselves out of the wood and stretched away over the grass. it was fortunate for the comte de pralines that his entirely british view-holloa was projected for the most part into my ear (the drum of which it nearly split) and was merged in the general enthusiasm as we let ourselves go. "for god's sake, major yeates!" said michael, the second whip, thundering up beside me as we neared the covert on the further side of the park, "come into the wood with me and turn them hounds! mr. flurry's back on another fox with the body of the pack, and he's very near his curse!" i followed michael into the covert, and was myself followed by a section of the field, who might, with great advantage, have remained outside. in the twinkling of an eye michael was absorbed into the depths of the wood; so also were the six couple, but not so my retinue, who pursued me like sleuth-hounds, as i traversed the covert at such speed as the narrow rides permitted. i made at length the negative discovery that it contained nothing save myself and my followers, a select party, consisting of the comte de pralines, miss mcrory, miss bobbie bennett, lady knox's coachman on a three-year-old, and a little boy in knickerbockers, on a midget pony with the bearing of a war-horse and a soul to match. we had come to a baffled pause at the cross-ways, when faint and far away, an indisputable holloa was borne to us. "they've gone out the west gate," said the coachman, from among the tree-trunks into which he had considerately manoeuvred the kicking end of the three-year-old. "it must be they ran him straight out into the country----" we made for the west gate, reached it without sight or sound of flurry or anyone else, and, on the farm road outside it, pulled up to listen. the holloa was repeated; half a mile ahead a gesticulating figure signalled to us to come on. i wish to put it on record that i said i could not hear the hounds. the comte de pralines (excitable, like all frenchmen) spurred his hireling at the opposite bank, saying, as he shot past me: "it's no damned use humbugging here any longer!" as i turned daniel to follow him, my eyes met those of miss larkie mcrory, alight with infernal intelligence; they challenged, but at the same time they offered confederacy. i jumped into the field after the count; miss mcrory followed. "i'll tell lady knox on you!" she murmured, as she pounded beside me on the long-legged spectre, who, it may be remembered, had been described as "the latther end of a car-horse." the holloa had come to us from the side of a smooth green hill, and between us and it was a shallow valley, neatly fenced with banks that did credit to sir valentine knox's farming. the horses were fresh, the valley smiled in the conventional way, and spread sleek pastures before us; we took the down grade at a cheerful pace, and the banks a shade faster than was orthodox, and the coachman's three-year-old made up in enthusiasm what he lacked in skill, and the pony, who from the first was running away, got over everything by methods known only to itself. the comte de pralines held an undeviating line for the spot whence the holloa had proceeded; when we reached it there was no one to be seen, but there was another holloa further on. the pursuit of this took us on to a road, and here the castle knox coachman, who had scouted on ahead, yelled something to the effect that he saw a rider out before him, accompanying the statement by an application of the spurs to the dripping but undaunted three-year-old. a stretching gallop up the road ensued, headed by the little boy and the coachman, who had both secured a commanding lead. the pace held for about a hundred yards, when the road bent sharply to the left, more sharply indeed than was anticipated by the leaders, who, as their mounts skidded as it were on one wheel round the corner, sailed from their saddles with singular unanimity and landed in the ditch. at the same moment the rider we had been following came into view; he was a priest, in immaculate black coat and top-hat, seated on a tall chestnut horse, and proceeding at a tranquil footpace on his own affairs. he had seen the fox, he admitted (i am inclined to think he had headed him), and he had heard a man shouting, but no hounds had come his way. he was entirely sympathetic, and, warm as i was at the moment, a chill apprehension warned me that we might presently need sympathy. "it's my belief," said miss bennett, voicing that which i had not put into words, "we've been riding after the fox, and the hounds didn't leave the covert at all!" an elaborate french oath from the count fell, theatrical as a drop-scene, on the close of the first act. miss larkie mcrory looked at him admiringly, and allowed just the last rays of her glance to include me. it was when we had retraced our steps to the bend of the road that we had a full view of the castle knox coverts, crowning in gold and brown those pleasant green slopes, easy as the descent to avernus, down which we had galloped with such generous ardour some fifteen minutes ago. outside the west gate, through which we had emerged from the demesne, were three motionless figures in scarlet; lady knox and her grey horse were also recognisable; a few hounds were straying undecidedly in the first of the grass fields that we had traversed. a note of the horn leaped to us across the valley, an angry and peremptory note. one of the scarlet figures started at a canter and turned the hounds. another and longer blast followed. as if in obedience to its summoning, the coachman's three-year-old came ramping, riderless, down the road; he passed us with his head high in air and his flashing eye fixed upon the distant group, and, with a long shrill neigh, put his tail over his back and directed his flight for his owner and her grey horse. "god help poor tierney!" said miss bennett, in a stricken voice, "and ourselves too! i believe they saw us all the time, and we galloping away on the line of the fox!" "i'm going home," i said. "will you kindly make my apologies to the master?" "i'll kindly do no such thing," replied miss bennett. "i'll let flurry knox cool off a bit before i meet him again, and that won't be this side of christmas, if _i_ can help it! good-bye, dear friends!" she turned her mare, and set her face for her own country. there now remained only the count, miss mcrory, and myself, and to remove ourselves from the field of vision of the party at the gate was our first care. we had, no doubt, been thoroughly identified, nevertheless the immediate sensation of getting a furzy hill between us and flurry was akin to that of escaping from the rays of a burning-glass. in shelter we paused and surveyed each other. the comte de pralines, with his shiny hat very much on the back of his head, put down his reins, shoved his crop under his knee, and got out his cigarette case. "well," he began philosophically, striking a match, "our luck ain't in----!" he broke off, the match went out, and a lively glow suffused his unsheltered countenance. "_vous voyez mon cher--_" he resumed, very rapidly. "_j'ai appris quelques petits mots----_" "what a lovely english accent he has!" interrupted miss mcrory rapturously; "it's a lot nicer than his french one. to look at him you'd never think he was so clever. it's a pity he wouldn't try to pick up a little more." "now, that's hitting a man when he's down," said the comte de pralines. "i want some one to be kind to me. i've had a poor day of it; no one would talk to me. i stampeded them wherever i went." "i didn't notice miss mcrory stampeding to any great extent," i said. "wait awhile!" rejoined miss mcrory. "maybe the stampeding will be going the other way when you and he meet lady knox!" "i shan't wait an instant," said the comte de pralines, "you and major yeates will explain." the horses had been moving on, and the covert was again in sight, about a quarter of a mile away on our left. there was nothing to be seen, but hounds were hunting again in the demesne; their cry drove on through the woods inside the grey demesne wall; they were hunting in a body, and they were hunting hard. at each moment the cry was becoming more remote, but it was still travelling on inside the wall. the fear of flurry fell from us as a garment, and the only question that presented itself was whether to return to the west gate or to hold on outside. it was a long-accepted theory at castle knox that the demesne wall was not negotiable, and that the foxes always used the gates, like christians; bearing this in mind, i counselled the front gate and the outside of the wall. a couple of lanes favoured us; we presently found ourselves in a series of marshy fields, moving along abreast of the invisible hounds in the wood. they were in the thickest and least accessible part of it, and flurry's voice and horn came faintly as from a distance. i explained that it was impossible to ride that part of the wood, but that, if they held on as they were going, the front gate would make it all right for us, and of course flurry would---- "oh! look, look, look!" shrieked miss mcrory, snatching at my arm and pointing with her whip. a short way ahead of us a huge elm tree had fallen upon the wall; the greenish-yellow leaves still clinging to its branches showed that the catastrophe was recent. it had broken down the wall to within five or six feet of the ground, and was reclining in the breach that it had made, with its branches sprawling in the field. i followed the line of miss larkie's whip, and was just in time to see a fox float like a red leaf from one of these to the ground, and glide straight across our front. he passed out of sight over a bank, and the count stood up in his stirrups, put his finger in his ear, and screamed in a way that must have been heard in the next county. i contributed a not ineffective bellow, and miss mcrory decorated the occasion with long thin squeals. the hounds, inside the wall, answered in an agony that was only allayed by the discovery that the trunk of the tree formed as handy a bridge for them as for the fox. they came dropping like ripe fruit through the branches, and, under our rejoicing eyes, swarmed to the fox's line, and flung on, in the fullest of full-cry, over the bank on which we had last seen him. i have not failed to assure flurry knox that anything less suggestive of "sneaking away with the hounds" than the manner of our departure could hardly be conceived, but mr. knox has not withdrawn the phrase. it may be conceded that flurry had grounds for annoyance. had i had the fox in one hand and the ordnance map in the other, i could hardly have improved on the course steered by our pilot. up hill for a bit, when the horses were fresh, with gradients just steep enough to temper daniel's well-sustained tug of war, yet not so steep as to make a three-foot bank look like a house, or to guarantee a big knee at each "stone gap." then high and dry country, with sheep huddled in defensive positions in the corners of the fields, and grass like a series of putting-greens, minus the holes, and fat, comely banks, and thin walls, from which the small round stones rattled harmlessly as miss mcrory's car-horse swept through them. down into a long valley, with little sky-blue lakes, set in yellow sedge; and there was a helpful bog road there, that nicked nicely with the bending line of the hounds through the accompanying bog, and allayed a spasm of acute anxiety as to whether we should ever get near them again. then upwards once more, deviously, through rougher going, with patches of low-growing furze sprouting from blackened tracts where the hillside had been set on fire, with the hounds coming to their noses among brakes of briars and bracken; finally, in the wind and sun of the hill-top, a well-timed check. we looked back for the first time, half in fear that we might find flurry hot on our track, half in hope that he and his horn were coming to our help; but neither in the green country nor in the brown valley was there any sign or sound of him. there was nothing to be seen but a couple of men standing on a fence to watch us, nothing to be heard except cur dogs vociferating at every cottage. "fifteen couple on," said the count professionally. "how many does knox usually have out?" "all he's got," i said, mopping my brow. "i don't see the two that have no hair on their backs," said miss mcrory, whose eyes, much enhanced by the radiant carmine of her cheeks, beamed at us through wisps and loops of hair. "i know them, they're always scratching, the poor things!" that miss mcrory and her steed kept, as they did, their place in what is known to history as the great castle knox run, is a matter that i do not pretend to explain. some antiquarian has unearthed the fact that the car-horse had three strains of breeding, and had twice been second in a point-to-point; but i maintain that credit must be ascribed to miss larkie, about whom there is something inevitable; some street-boy quality of being in the movement. we were now on a heathery table-land, with patches of splashy, rushy ground, from which the snipe flickered out as the hounds cast themselves through it. presently, on the top of a hard, peaty bank, a hound spoke, hesitatingly, yet hopefully, and plunged down on the other side; the pack crowded over, and drove on through the heather. daniel changed feet on a mat of ling with a large stone in it, and therefrom ramped carefully out over a deep cut in the peat, unforeseen, and masked by tufts of heather. the hireling of the comte de pralines had, up to this, done his work blamelessly, if without originality; he had an anxiousness to oblige that had been matured during a dread winter when he had been the joint property of three subalterns, but he reserved to himself a determination to drop economically off his banks, and boggy slits were not in his list of possibilities. how the matter occurred i do not know, but, when i looked round, his head alone was visible, and the count was standing on his in the heather. miss mcrory's car-horse, who had pulled up in the act of following the count, with a suddenness acquired, no doubt, in the shafts of a cork covered-car, was viewing the scene with horror from the summit of the bank. the hounds were by this time clear of the heather, and were beginning to run hard; it was not until i was on the further side of the next bank that i cast another fleeting look back; this time the count was standing on his feet, but the hireling was still engulfed, and miss mcrory was still on the wrong side of the slit. after that i forgot them, wholly and heartlessly, as is invariable in such cases. as a matter of fact, i had no attention to spare for anyone but myself, even though we went, for the first twenty minutes or so, as on rubber tyres, through bland dairy farms wherein the sweet influences of the dairy-cow had induced gaps in every fence, and gates into every road. the scent, mercifully for daniel, was not quite what it had been; the fox had run through cattle, and also through goats (a small and odorous party, on whose behalf, indeed, some slight intervention on my part was required), and it was here, when crossing a road, that a donkey and her foal, moved by some mysterious attraction akin to love at first sight, attached themselves to me. undeterred by the fact that the mother's foreleg was fettered to her hind, the pair sped from field to field in my wake; at the checks, which just then were frequent, they brayed enthusiastically. i thought to elude them at a steep drop into a road, but they toboganned down it without an effort; when they overtook me the fetter-chain was broken, and clanked from the mother's hind-leg as if she were a family ghost. there came at length a moment, outside a farm-house, when it seemed as if the fox had beaten us. here, on the farther side of castle knox, i was well out of my own country, and what the fox's point might be was represented by the letter x. nevertheless it was here that i lifted the hounds and brought off the cast of a life-time; i am inclined to think that he had lain down under a hayrick and was warned of our approach by the voices of my attendant jackasses; my cast was probably not much more of a fluke than such inspirations usually are, but the luck was with me. old playboy, sole relic of my deputy mastership, lifted his white head and endorsed my suggestion with a single bass note; rally, philippa's prize puppy, uttered a soprano cadenza, and the pack suddenly slid away over the pasture fields, with the smoothness and unanimity of the _petits chevaux_ over their green cloth. it was now becoming for daniel and me something of an effort to keep our proud and lonely place in or about the next field to the hounds. the fields were coming smaller, the gaps fewer; daniel had no intention of chucking it, but he gave me to understand that he meant to take the hills on the second speed. and, unfortunately, the hills were coming. the hounds, by this time three fences ahead, flung over a bank on the upgrade, a bank that would give pause for reflection at the beginning of a run. i tried back, scrambled into a lane, followed it up the hill, with the cry of the hounds coming fainter each minute, dragged a cart wheel and a furze bush out of a gap with my crop, found myself in a boggy patch of turnips, surrounded by towering fuchsia hedges, and realised that the pack had passed in music out of sight. i stood still and looked at my watch. it was already an hour and twenty minutes from the word "go!" and the hounds were not only gone but were still going. a man who has lost hounds inevitably follows the line of least resistance. i retired from the turnip field, and abandoned myself to the lane, which seemed not disinclined to follow the direction in which the hounds had been heading. since the hayrick episode they had been running right-handed, and the lane bent right-handed over the end of the hill, and presently deposited me on a road. it was one of the moments when the greatness of the world is borne in upon the wayfarer. there was a spacious view from the hill-side; three parishes, at least, offered themselves for my selection, and i surveyed them, solitary and remote as the evening star, and with no more reason than it for favouring one more than another. a harrowing, and, by this time, but too familiar cry, broke on my ear, an undulating cry as of a thing that galloped as it roared. my admirers were still on my trail; i gave daniel a touch of the spurs and trotted on to the right. no human being was visible, but some way ahead there was a slated house at a cross-roads; there, at all events, i could get my bearings. there were porter-barrels outside it, and from some distance i heard two voices, male and female, engaged in loud and ferocious argument; i had no difficulty in diagnosing a public-house. when daniel and i darkened the doorway the shouting ceased abruptly, and i saw a farmer, in his sunday clothes, making an unsteady retreat through a door at the back of the shop. the other disputant, a large, middle-aged woman, remained entrenched behind the counter, and regarded me with a tranquil and commanding eye. she informed me, as from a pulpit, that i was six miles from castle knox, and with dignity, as though leaving a pulpit, she moved from behind the counter, and advanced to the door to indicate my road. i asked her if she had seen anything of the hounds. "there was one of your dogs looked in the door to me a while ago," she replied, "but he got a couple of boxes from the cat that have kittens; i d'no what way he went. indeed i was bothered at the time with that poor man that came in to thank me for the compliment i paid him in going to his sister's funeral." i said that he certainly seemed to feel it very much. at which she looked hard at me and said that he was on his way to a wedding, and that it might be he had a drop taken to rise his heart. "he was after getting a half a crown from a gentleman--a huntsman like yourself," she added, "that was striving to get his horse out of a ditch." "was there a lady with him?" i asked. "there was, faith! and the two o' them legged it away then through the country, and they galloping like the deer!" so, in all love, we parted; before i reached the next turning renewed sounds of battle told me that the compliment was still being pressed home. my road, bending ever to the right, strolled through an untidy nondescript country, with little bits of bog, and little lumps of hill, and little rags of fields. i had jogged a mile or so when i saw a hound, a few fields away to my right, poking along on what appeared to be a line; he flopped into a boggy ditch, and scrambled from it on to a fence. he stood there undecidedly, like any human being, reviewing the situation, and then i saw his head and stern go up. the next moment i also heard what he had heard, a faint and far-away note of the horn. it came again, a long and questing call. the road was flat and fairly straight; far away upon it something was moving gradually into my scope of vision, something with specks of red in it. it advanced upon me, firmly, and at a smart pace; heading it, like the ram of a battleship, was mr. knox. with him, "of all his halls had nursed," remained only the two hounds with the hairless backs, the two who, according to miss mcrory, were always scratching. behind him was a small and unsmiling selection from those who, like him, had lost the hunt. lady knox headed them; my wife and bill brought up the rear. the hound whom i had seen in the bog had preceded me, and was now joining himself to his two comrades, putting the best face he could upon it, with a frowning brow and his hackles up. the comrades, in their official position of sole representatives of the pack, received him with orthodox sternness, and though unable, for obvious reasons, to put their hackles up, the bald places on their backs were of an intimidating pink. my own reception followed the same lines. "where are the hounds?" barked flurry, in the awful tones of a parent addressing a governess who, through gross neglect, has mislaid her charges. before i had had time to make up my mind whether to be truculent or pacific, there was a shout away on our left. at some little distance up a by-road, a man was standing on a furze-plumed bank, beckoning to us with a driving-whip. flurry stood in his stirrups, and held up his cap. the man yelled information that was wholly unintelligible, but the driving-whip indicated a point beyond him, and flurry's brown mare jumped from a standstill to a gallop, and swung into the by-road. the little band of followers swung after him. when lady knox was well ahead, i followed, and found myself battering between high banks behind philippa and bill cunningham. "where's mossoo?" my wife said breathlessly, as daniel's head drew level with her sandwich case. "we met the man who pulled him out of the ditch--up in the hills there----" "yes, by jove!" said bill, "flurry asked him if it was a frenchman, and the chap said, 'french or german, he had curses as good as yourself!' i told flurry it must have been you!" "i don't mind flurry, it's lady knox----" began philippa. here we all came to a violent full-stop. flurry's advance had been arrested by a covered-car and horse drawn across the road; the horse was eating grass, the driver, with the reins in his hand, was standing with his back to us on the top of the bank from which he had hailed us, howling plaudits, as if he were watching a race. there were distant shouts, and barking dogs, and bellowing cattle, and blended with them was the unmistakable baying of hounds. i daresay that what flurry said to the driver did him good--did flurry good, i mean. the car lurched to one side, and, as we squeezed past it, we saw between its black curtains a vision of a scarlet-faced bride, embedded in female relatives; two outside cars, driverless, and loaded with wedding guests, were drawn up a little farther on. flurry, still exploding like a shell, thundered on down the lane; the high bank ended at a gateway, he turned in, and as we crushed in after him we were greeted by a long and piercing "who-whoop!" we were in a straggling field with furzy patches in it. at the farther end of it was a crowd of country people on horses and on foot, obviously more wedding-guests; back of all, on a road below, was a white-washed chapel, and near it, still on the chestnut horse, was the priest who had headed the morning fox. close to one of the clumps of furze the comte de pralines was standing, knee-deep in baying hounds, holding the body of the fox high above his head, and uttering scream upon scream of the most orthodox quality. he flung the fox to the hounds, the onlookers cheered, miss mcrory, seated on the car-horse, waved the brush above her head, and squealed at the top of her voice something that sounded like "yoicks!" her hair was floating freely down her back; a young countryman, in such sacrificial attire as suggested the bridegroom, was running across the field with her hat in his hand. flurry pulled up in silence; so did we. we were all quite outside the picture, and we knew it. "oh, the finest hunt ever you see!" cried the bridegroom as he passed us; "it was father dwyer seen him shnaking into the furze, the villyan!" "worry, worry, worry! tear him and eat him, old fellows!" shouted the comte de pralines. "give the hounds room, can't you, you chaps! i suppose you never saw them break up a fox before!" this to the wedding guests, who had crowded in, horse and foot, on top of the scuffling, growling pack. flurry turned an iron face upon me. his eye was no bigger than a pin's head. "i suppose it's from larkie mcrory he got the english?" he said; "he learnt it quick." "the mcrorys don't speak english!" said lady knox, in a voice like a north-east wind. "_seulement très petit!_" philippa murmured brazenly. whether lady knox heard her or not, i am unable to say. her face was averted from me, and remained as inflexible as a profile on a coin--a roman coin, for choice. the faculty of not knowing when you are beaten is one that has, i think, been lauded beyond its deserving. napoleon the great has condemned manoeuvring before a fixed position, and lady knox was clearly a fixed position. accepting these tenets, i began an unostentatious retirement, in which i was joined by philippa. we were nearing safety and the gate of the field, when a yearning, choking wail came to us from the lane. "the bride?" queried my wife hysterically. it was repeated; in the same instant my admirers, the jackasses, _mère et fils_, advanced upon the scene at a delirious gallop, and, sobbing with the ecstasy of reunion, resumed their attendance upon daniel. for a moment the attention of the field, including even that of the roman coin, was diverted from the comte de pralines, and was concentrated upon our retreat. xi the shooting of shinroe mr. joseph francis m'cabe rose stiffly from his basket chair, picked up the cushion on which he had been seated, looked at it with animosity, hit it hard with his fist, and, flinging it into the chair, replaced himself upon it, with the single word: "flog!" i was aware that he referred to the flock with which the cushions in the lounge of reardon's hotel were stuffed. "they have this hotel destroyed altogether with their improvements," went on mr. m'cabe between puffs, as he lit his pipe. "god be with the time this was the old smoking-room, before they knocked it and the hall into one and spoilt the two of them! there were fine solid chairs in it that time, that you'd sleep in as good as your bed, but as for these wicker affairs, i declare the wind 'd whistle through them the same as a crow's nest." he paused, and brought his heel down heavily on the top of the fire. "and look at that for a grate! a well-grate they call it,--_i'd_ say, 'leave well alone!' thirty years i'm coming to sessions here, and putting up in this house, and in place of old tim telling me me own room was ready for me, there's a whipper-snapper of a snapdragon in a glass box in the hall, asking me me name in broken english" (it may be mentioned that this happened before the war), "and 'had i a cook's ticket?' and down-facing me that i must leave my key in what he called the 'bew-ro.'" i said i knew of a lady who always took a cook's ticket when she went abroad, because when she got to paris there would be an englishman on the platform to meet her, or at all events a broken englishman. mr. m'cabe softened to a temporary smile, but held on to his grievance with the tenacity of his profession. (i don't think i have mentioned that he is a solicitor, of a type now, unfortunately, becoming obsolete.) he had a long grey face, and a short grey moustache; he dyed his hair, and his age was known to no man. "there was one of cook's tourists sat next me at breakfast," he resumed, "and he asked me was i ever in ireland before, and how long was i in it. 'wan day,' says i!" "did he believe you?" i asked. "he did," replied mr. m'cabe, with something that approached compassion. i have always found old m'cabe a mitigating circumstance of sessions at owenford, both in court and out of it. he was a sportsman of the ingrained variety that grows wild in ireland, and in any of the horse-coping cases that occasionally refresh the innermost soul of munster, it would be safe to assume that mr. m'cabe's special gifts had ensured his being retained, generally on the shady side. he fished when occasion served, he shot whether it did or not. he did not exactly keep horses, but he always knew some one who was prepared to "pass on" a thoroughly useful animal, with some infirmity so insignificant that until you tried to dispose of him you did not realise that he was yours, until his final passing-on to the next world. he had certain shooting privileges in the mountains behind the town of owenford (bestowed, so he said, by a grateful client), and it had often been suggested by him that he and i should anticipate some november sessions by a day, and spend it "on the hill." we were now in the act of carrying out the project. "ah, these english," m'cabe began again, mixing himself a glass of whisky and water, "they'd believe anything so long as it wasn't the truth. talking politics these lads were, and by the time they had their ham and eggs swallowed they had the whole country arranged. 'and look,' says they--they were anglers, god help us!--'look at all the money that's going to waste for want of preserving the rivers!' 'i beg your pardon,' says i, 'there's water-bailiffs on the most of the rivers. i was defending a man not long since, that was cot by the water-bailiff poaching salmon on the owen. 'and what proof have you?' says i to the water-bailiff. 'how do you know it was a salmon at all?' 'is it how would i know?' says the bailiff, 'didn't i gaff the fish for him meself!'" "what did your anglers say to that?" i enquired. "well, they didn't quite go so far as to tell me i was a liar," said mr. m'cabe tranquilly. "ah, telling such as them the truth is wasting what isn't plenty! then they'll meet some fellow that lies like a tooth-drawer, and they'll write to the english _times_ on the head of him!" he stretched forth a long and bony hand for the tumbler of whisky and water. "and talking of tooth-drawers," he went on, "there's a dentist comes here once a fortnight, jeffers his name is, and a great sportsman too. i was with him to-day"--he passed his hand consciously over his mouth, and the difference that i had dimly felt in his appearance suddenly, and in all senses of the word, flashed upon me--"and he was telling me how one time, in the summer that's past, he'd been out all night, fishing in the owen. he was going home before the dawn, and he jumped down off a bank on to what he took to be a white stone--and he aimed for the stone, mind you, because he thought the ground was wet--and what was it but a man's face!" m'cabe paused to receive my comment. "what did he do, is it? ran off for his life, roaring out, 'there's a first-rate dentist in owenford!' the fellow was lying asleep there, and he having bundles of spurge with him to poison the river! he had taken drink, i suppose." "was he a water-bailiff too?" said i. "i hope the conservators of the river stood him a set of teeth." "if they did," said m'cabe, with an unexpected burst of feeling, "i pity him!" he rose to his feet, and put his tumbler down on the chimney-piece. "well, we should get away early in the morning, and it's no harm for me to go to bed." he yawned--a large yawn that ended abruptly with a metallic click. his eyes met mine, full of unspoken things; we parted in a silence that seemed to have been artificially imposed upon mr. m'cabe. the wind boomed intermittently in my chimney during the night, and a far and heavy growling told of the dissatisfaction of the sea. yet the morning was not unfavourable. there was a broken mist, with shimmers of sun in it, and the carman said it would be a thing of nothing, and would go out with the tide. the boots, a relic of the old _régime_, was pessimistic, and mentioned that there were two stars squez up agin the moon last night, and he would have no dependence on the day. m'cabe offered no opinion, being occupied in bestowing in a species of dog-box beneath the well of the car a young red setter, kindly lent by his friend the dentist. the setter, who had formed at sight an unfavourable opinion of the dog-box, had resolved himself into an invertebrate mass of jelly and lead, and was with difficulty straightened out and rammed home into it. "have we all now?" said m'cabe, slamming the door in the dog's face. "take care we're not like me uncle, old tom duffy, that was going shooting, and was the whole morning slapping his pockets and saying, 'me powder! me shot! me caps! me wads!' and when he got to the bog, 'o tare an' ouns!' says he, 'i forgot the gun!'" there are still moments when i can find some special and not-otherwise-to-be-attained flavour in driving on an outside car; a sense of personal achievement in sitting, by some method of instinctive suction, the lurches and swoops peculiar to these vehicles. reardon's had given us its roomiest car and its best horse, a yellow mare, with a long back and a slinging trot, and a mouth of iron. "where did mr. reardon get the mare, jerry?" asked m'cabe, as we zigzagged in successive hairbreadths through the streets of owenford. "d-dublin, sir," replied the driver, who, with both fists extended in front of him and both heels planted against his narrow footboard, seemed to find utterance difficult. "she's a goer!" said m'cabe. "she is--she killed two men," said jerry, in two jerks. "that's a great credit to her. what way did she do it?" "p-pulled the lungs out o' them!" ejaculated jerry, turning the last corner and giving the mare a shade more of her head, as a tribute, perhaps, to her prowess. she swung us for some six miles along the ruts of the coast road at the same unflinching pace, after which, turning inland and uphill, we began the climb of four miles into the mountains. it was about eleven o'clock when we pulled up beside a long and reedy pool, high up in the heather; the road went on, illimitably it seemed, and was lost, with its attendant telegraph posts, in cloud. "away with ye now, jerry," said m'cabe; "we'll shoot our way home." he opened the back of the dog-box, and summoned its occupant. the summons was disregarded. far back in the box two sparks of light and a dead silence indicated the presence of the dog. "how, snug you are in there!" said m'cabe; "here, jerry, pull him out for us. what the deuce is this his name is? jeffers told me yesterday, and it's gone from me." "i d'no would he bite me?" said jerry, taking a cautious observation and giving voice to the feelings of the party. "here, poor fellow! here, good lad!" the good lad remained immovable. the lure of a sandwich produced no better result. "we can't be losing our day with the brute this way," said m'cabe. "tip up the car. he'll come out then, and no thanks to him." as the shafts rose heavenwards, the law of gravitation proved too many for the setter, and he slowly slid to earth. "if i only knew your dam name we'd be all right now," said m'cabe. the carman dropped the shafts on to the mare, and drove on up the pass, with one side of the car turned up and himself on the other. the yellow mare had, it seemed, only begun her day's work. a prophetic instinct, of the reliable kind that is strictly founded on fact, warned me that we might live to regret her departure. the dentist's setter had, at sight of the guns, realised that things were better than he had expected, and now preceded us along the edge of the lake with every appearance of enthusiasm. he quartered the ground with professional zeal, he splashed through the sedge, and rattled through thickets of dry reeds, and set successively a heron, a water-hen, and something, unseen, that i believe to have been a water-rat. after each of these efforts he rushed in upon his quarry, and we called him by all the gun-dog names we had ever heard of, from don to grouse, from carlo to shot, coupled with objurgations on a rising scale. with none of them did we so much as vibrate a chord in his bosom. he was a large dog, with a blunt stupid face, and a faculty for excitement about nothing that impelled him to bound back to us as often as possible, to gaze in our eyes in brilliant enquiry, and to pant and prance before us with all the fatuity of youth. had he been able to speak, he would have asked idiotic questions, of that special breed that exact from their victim a reply of equal imbecility. the lake and its environs, for the first time in m'cabe's experience, yielded nothing; we struck up on to the mountain side, following the course of an angry stream that came racing down from the heights. we worked up through ling and furze, and skirted flocks of pale stones that lay in the heather like petrified sheep, and the dog, ranging deliriously, set water-wagtails and anything else that could fly; i believe he would have set a blue-bottle, and i said so to m'cabe. "ah, give him time; he'll settle down," said m'cabe, who had a thankfulness for small mercies born of a vast experience of makeshifts; "he might fill the bag for us yet." we laboured along the flank of the mountain, climbing in and out of small ravines, jumping or wading streams, sloshing through yellow sedgery bog; always with the brown heather running up to the misty skyline, and always with the same atrocious luck. once a small pack of grouse got up, very wild, and leagues out of range, thanks to the far-reaching activities of the dog, and once a hermit woodcock exploded out of a clump of furze, and sailed away down the slope, followed by four charges of shot and the red setter, in equally innocuous pursuit. and this, up to luncheon time, was the sum of the morning's sport. we ate our sandwiches on a high ridge, under the lee of a tumbled pile of boulders, that looked as if they had been about to hurl themselves into the valley, and had thought better of it at the last moment. between the looming, elephant-grey mountains the mist yielded glimpses of the far greenness of the sea, the only green thing in sight in this world of grey and brown. the dog sat opposite to me, and willed me to share my food with him. his steady eyes were charged with the implication that i was a glutton; personally i abhorred him, yet i found it impossible to give him less than twenty-five per cent. of my sandwiches. "i wonder did jeffers take him for a bad debt," said m'cabe reflectively, as he lit his pipe. i said i should rather take my chance with the bad debt. "he might have treated me better," m'cabe grumbled on, "seeing that i paid him seven pound ten the day before yesterday, let alone that it was me that was the first to put him up to this--this bit of shinroe mountain that never was what you might call strictly preserved. when he came here first he didn't as much as know what cartridges he'd want for it. 'six and eight,' says i, 'that's a lawyer's fee, so if you think of me you'll not forget it!' and now, if ye please," went on mr. jeffers' preceptor in sport, "he's shooting the whole country and selling all he gets! and he wouldn't as much as ask me to go with him; and the excuse he gives, he wouldn't like to have an old hand like me connyshooring his shots! how modest he is!" i taunted m'cabe with having been weak enough thus to cede his rights, and m'cabe, who was not at all amused, said that after all it wasn't so much jeffers that did the harm, but an infernal english syndicate that had taken the shinroe shooting this season, and paid old purcell that owned it ten times what it was worth. "it might be as good for us to get off their ground now," continued m'cabe, rising slowly to his feet, "and try the lackagreina valley. the stream below is their bounds." this, i hasten to say, was the first i had heard of the syndicate, and i thought it tactless of m'cabe to have mentioned it, even though the wrong that we had done them was purely technical. i said to him that i thought the sooner we got off their ground the better, and we descended the hill and crossed the stream, and m'cabe said that he could always shoot this next stretch of country when he liked. with this assurance, we turned our backs on the sea and struck inland, tramping for an hour or more through country whose entire barrenness could only be explained on the hypothesis that it has been turned inside out to dry. so far it had failed to achieve even this result. the weather got thicker, and the sport, if possible, thinner; i had long since lost what bearings i possessed, but m'cabe said he knew of a nice patch of scrub in the next valley that always held a cock. the next valley came at last, not without considerable effort, but no patch of scrub was apparent. some small black and grey cattle stood and looked at us, and a young bull showed an inclination to stalk the dog; it seemed the only sport the valley was likely to afford. m'cabe looked round him, and looked at his watch, and looked at the sky, which did not seem to be more than a yard above our heads, and said without emotion: "did ye think of telling the lad in the glass box in the hall that we might want some dinner kept hot for us? i d'no from adam where we've got to!" there was a cattle track along the side of the valley which might, though not necessarily, lead somewhere. we pursued it, and found that it led, in the first instance, to some blackfaced mountain sheep. a cheerful interlude followed, in which the red setter hunted the sheep, and we hunted the setter, and what m'cabe said about the dentist in the intervals of the chase was more appropriate to the occasion than to these pages. when justice had been satiated, and the last echo of the last yell of the dog had trembled into silence among the hills, we resumed the cattle-track, which had become a shade more reliable, and, as we proceeded, began to give an impression that it might lead somewhere. the day was dying in threatening stillness. lethargic layers of mist bulged low, like the roof of a marquee, and cloaked every outline that could yield us information. the dog, unchastened by recent events, and full of an idiot optimism, continued to range the hillside. "i suppose i'll never get the chance to tell jeffers my opinion of that tom-fool," said m'cabe, following with an eye of steel the perambulations of the dog; "the best barrister that ever wore a wig couldn't argue with a dentist! he has his fist half way down your throat before you can open your mouth; and in any case he'll tell me we couldn't expect any dog would work for us when we forgot his name. what's the brute at now?" the brute was high above us on the hillside, setting a solitary furze bush with convincing determination, and casting backward looks to see if he were being supported. "it might be a hare," said m'cabe, cocking his gun, with a revival of hope that was almost pathetic, and ascending towards the furze bush. i neither quickened my pace nor deviated from the cattle track, but i may admit that i did so far yield to the theory of the hare as to slip a cartridge into my gun. m'cabe put his gun to his shoulder, lowered it abruptly, and walked up to the furze bush. he stooped and picked up something. "he's not such a fool after all!" he called out; "ye said he'd set a blue-bottle, and b' jove ye weren't far out!" he held up a black object that was neither bird nor beast. i took the cartridge out of my gun as unobtrusively as possible, and m'cabe and the dog rejoined me with the product of the day's sport. it was a flat-sided bottle, high shouldered, with a short neck; m'cabe extracted the cork and took a sniff. "mountain dew no less!" (mr. m'cabe adhered faithfully to the stock phrases of his youth.) "this never paid the king a shilling! give me the cup off your flask, major, till we see what sort it is." it was pretty rank, and even that seasoned vessel, old m'cabe, admitted that it might be drinkable in another couple of years, but hardly in less; yet as it ran, a rivulet of fire, through my system, it seemed to me that even the water in my boots became less chill. "in the public interest we're bound to remove it," said m'cabe, putting the bottle into his game bag; "any man that drank enough of that 'd rob a church! well, anyway, we're not the only people travelling this path," he continued; "whoever put his afternoon tea to hide there will choose a less fashionable promenade next time. but indeed the poor man couldn't be blamed for not knowing such a universal genius of a dog was coming this way! didn't i tell you he'd fill the bag for us!" he extracted from his pockets a pair of knitted gloves, and put them on; it was equivalent to putting up the shutters. it was shortly after this that we regained touch with civilisation. above the profile of a hill a telegraph post suddenly showed itself against the grey of the misty twilight. we made as bee-like a line for it as the nature of the ground permitted, and found ourselves on a narrow road, at a point where it was in the act of making a hairpin turn before plunging into a valley. "the beacon bay road, begad!" said m'cabe; "i didn't think we were so far out of our way. let me see now, which way is this we'd best go." he stood still and looked round him, taking his bearings; in the solitude the telegraph posts hummed to each other, full of information and entirely reticent. the position was worse than i thought. by descending into the valley we should, a couple or three miles farther on, strike the coast road about six miles from home; by ascending the hill and walking four miles, we should arrive at the station of coppeen road, and, with luck, there intercept the evening train for owenford. "and that's the best of our play, but we'll have to step out," concluded m'cabe, shortening the strap of his game-bag, and settling it on his back. "if i were you," i said, "i'd chuck that stuff away. apart from anything else, it's about half a ton extra to carry." "there's many a thing, major, that you might do that i might not do," returned m'cabe with solemnity, "and in the contrairy sense the statement is equally valid." he faced the hill with humped shoulders, and fell with no more words into his poacher's stride, and i followed him with the best imitation of it that i could put up after at least six hours of heavy going. m'cabe is fifteen years older than i am, and i hope that when i am his age i shall have more consideration than he for those who are younger than myself. it was now nearly half-past five o'clock, and by the time we had covered a mile of puddles and broken stones it was too dark to see which was which. i felt considerable dubiety about catching the train at coppeen road, all the more that it was a flag station, demanding an extra five minutes in hand. probably the engine-driver had long since abandoned any expectation of passengers at coppeen road, and, if he even noticed the signal, would treat it as a practical joke. it was after another quarter of an hour's trudge that a distant sound entered into the silence that had fallen upon m'cabe and me, an intermittent grating of wheels upon patches of broken stone, a steady hammer of hoofs. m'cabe halted. "that car's bound to be going to owenford," he said; "i wonder could they give us a lift." a single light (the economical habit of the south of ireland) began to split the foggy darkness. "begad, that's like the go of reardon's mare!" said m'cabe, as the light swung down upon us. we held the road like highwaymen, we called upon the unseen driver to stop, and he answered to the name of jerry. this is not a proof of identity in a province where every third man is dignified by the name of jeremiah, but as the car pulled up it was reardon's yellow mare on which the lamplight fell, and we knew that the fates had relented. we should certainly not catch the train at coppeen road, jerry assured us; "she had," he said, "a fashion of running early on monday nights, and in any case if you'd want to catch that thrain, you should make like an amber-bush for her." we agreed that it was too late for the preparation of an ambush. "if the sergeant had no objections," continued jerry, progressing smoothly towards the tip that would finally be his, "it would be no trouble at all to oblige the gentlemen. sure it's the big car i have, and it's often i took six, yes, and seven on it, going to the races." i was now aware of two helmeted presences on the car, and a decorous voice said that the gentlemen were welcome to a side of the car if they liked. "is that sergeant leonard?" asked m'cabe, who knew every policeman in the country. "well, sergeant, you've a knack of being on the spot when you're wanted!" "and sometimes when he's not!" said i. there was a third and unhelmeted presence on the car, and something of stillness and aloofness in it had led me to diagnose a prisoner. the suggested dispositions were accomplished. the two policemen and the prisoner wedged themselves on one side of the car, m'cabe and i mounted the other, and put the dog on the cushion of the well behind us (his late quarters in the dog-box being occupied by half a mountain sheep, destined for the hotel larder). the yellow mare went gallantly up to her collar, regardless of her augmented load; m'cabe and the sergeant leaned to each other across the back of the car, and fell into profound and low-toned converse; i smoked, and the dog, propping his wet back against mine, made friends with the prisoner. it may be the irish blood in me that is responsible for the illicit sympathy with a prisoner that sometimes incommodes me; i certainly bestowed some of it upon the captive, sandwiched between two stalwarts of the r.i.c., and learning that the strong arm of the law was a trifle compared with the rest of its person. "what sport had you, major?" enquired jerry, as we slackened speed at a hill. i was sitting at the top of the car, under his elbow, and he probably thought that i was feeling neglected during the heart-to-heart confidences of m'cabe and the sergeant. "not a feather," i replied. "sure the birds couldn't be in it this weather," said jerry considerately; he had in his time condoled with many sportsmen. "i'm after talking to a man in coppeen road station, that was carrying the game bag for them gentlemen that has mr. purcell's shooting on shinroe mountain, and what had the four o' them after the day--only one jack-snipe!" "they went one better than we did," i said, but, as was intended, i felt cheered--"what day were they there?" "to-day, sure!" answered jerry, with faint surprise, "and they hadn't their luncheon hardly ate when they met one on the mountain that told them he seen two fellas walking it, with guns and a dog, no more than an hour before them. 'that'll do!' says they, and they turned about and back with them to coppeen road to tell the police." "did they see the fellows?" i asked lightly, after a panic-stricken pause. "they did not. sure they said if they seen them, they'd shoot them like rooks," replied jerry, "and they would too. it's what the man was saying if they cot them lads to-day they'd have left them in the way they'd be given up by both doctor and priest! oh, they're fierce altogether!" i received this information in a silence that was filled to bursting with the desire to strangle m'cabe. jerry leaned over my shoulder, and lowered his voice. "they were saying in coppeen road that there was a gentleman that came on a mothor-bike this morning early, and he had shinroe shot out by ten o'clock, and on with him then up the country; and it isn't the first time he was in it. it's a pity those gentlemen couldn't ketch _him_! _they'd_ mothor-bike him!" it was apparent that the poaching of the motor-bicycle upon the legitimate preserves of carmen was responsible for this remarkable sympathy with the law; i, at all events, had it to my credit that i had not gone poaching on a motor-bicycle. just here m'cabe emerged from the heart-to-heart, and nudged me in the ribs with a confederate elbow. i did not respond, being in no mood for confederacy, certainly not with m'cabe. "the sergeant is after telling me this prisoner he has here is prosecuted at the instance of that syndicate i was telling you about," he whispered hoarsely in my ear, "for hunting shinroe with greyhounds. he was cited to appear last week, and he didn't turn up; he'll be before you to-morrow. i hope the bench will have a fellow-feeling for a fellow-creature!" the whisper ended in the wheezy cough that was mr. m'cabe's equivalent for a laugh. it was very close to my ear, and it had somewhere in it the metallic click that i had noticed before. i grunted forbiddingly, and turned my back upon m'cabe, as far as it is possible to do so on an outside car, and we hammered on through the darkness. once the solitary lamp illumined the prolonged countenance of a donkey, and once or twice we came upon a party of sheep lying on the road; they melted into the night at the minatory whistle that is dedicated to sheep, and on each of these occasions the dentist's dog was shaken by strong shudders, and made a convulsive attempt to spring from the car in pursuit. we were making good travelling on a long down-grade, a smell of sea-weed was in the mist, and a salt taste was on my lips. it was very cold; i had no overcoat, my boots had plumbed the depths of many bogholes, and i found myself shivering like the dog. it was at this point that i felt m'cabe fumbling at his game-bag, that lay between us on the seat. by dint of a sympathy that i would have died rather than betray, i divined that he was going to tap that fount of contraband fire that he owed to the dentist's dog. it was, apparently, a matter of some difficulty; i felt him groping and tugging at the straps. i said to myself, waveringly: "old blackguard! i won't touch it if he offers it to me." m'cabe went on fumbling: "damn these woolly gloves! i can't do a hand's turn with them." in the dark i could not see what followed, but i felt him raise his arm. there was a jerk, followed by a howl. "hold on!" roared m'cabe, with a new and strange utterance, "thtop the horth! i've dropped me teeth!" the driver did his best, but with the push of the hill behind her the mare took some stopping. "oh, murder! oh, murder!" wailed m'cabe, lisping thickly, "i pulled them out o' me head with the glove, trying to get it off!" he scrambled off the car. "give me the lamp! me lovely new teeth----" i detached the lamp from its socket with all speed, and handed it to m'cabe, who hurried back on our tracks. from motives of delicacy i remained on the car, as did also the rest of the party. a minute or two passed in awed silence, while the patch of light went to and fro on the dark road. it seemed an intrusion to offer assistance, and an uncertainty as to whether to allude to the loss as "them," or "it," made enquiries a difficulty. "for goodneth'ake have none o' ye any matcheth, that ye couldn't come and help me?" demanded the voice of m'cabe, in indignation blurred pathetically by his gosling-like lisp. i went to his assistance, and refrained with an effort from suggesting the employment of that all-accomplished setter, the dentist's dog, in the search; it was not the moment for pleasantry. not yet. we crept along, bent double, like gorillas; the long strips of broken stones yielded nothing, the long puddles between them were examined in vain. "what the dooth will i do to-morrow?" raged m'cabe, pawing in the heather at the road's edge. "how can i plead when i haven't a blathted tooth in me head?" "i'll give you half a crown this minute, m'cabe," said i brutally, "if you'll say 'sessions'!" here the sergeant joined us, striking matches as he came. he worked his way into the sphere of the car-lamp, he was most painstaking and sympathetic, and his oblique allusions to the object of the search were a miracle of tact. "i see something white beyond you, mr. m'cabe,"' he said respectfully, "might that be them?" m'cabe swung the lamp as indicated. "no, it might not. it's a pebble," he replied, with pardonable irascibility. silence followed, and we worked our way up the hill. "what's that, sir?" ventured the sergeant, with some excitement, stopping again and pointing. "i think i see the gleam of the gold!" "ah, nonthenth, man! they're vulcanite!" snapped m'cabe, more irascibly than ever. the word nonsense was a disastrous effort, and i withdrew into the darkness to enjoy it. "what colour might vulcanite be, sir?" murmured a voice beside me. jerry had joined the search-party; he lighted, as he spoke, an inch of candle. on hearing my explanation he remarked that it was a bad chance, and at the same instant the inch of candle slipped from his fingers and fell into a puddle. "divil mend ye for a candle! have ye a match, sir? i haven't a one left!" as it happened, i had no matches, my only means of making a light being a patent tinder-box. "have you a match there?" i called out to the invisible occupants of the car, which was about fifteen or twenty yards away, advancing towards it as i spoke. the constable politely jumped off and came to meet me. as he was in the act of handing me his match-box, the car drove away down the hill. i state the fact with the bald simplicity that is appropriate to great disaster. to be exact, the yellow mare sprang from inaction into a gallop, as if she had been stung by a wasp, and had a start of at least fifty yards before either the carman or the constable could get under weigh. the carman, uttering shrill and menacing whistles, led the chase, the constable, though badly hampered by his greatcoat, was a good second, and the sergeant, making the best of a bad start, followed them into the night. the yellow mare's head was for home, and her load was on its own legs on the road behind her; hysterical yelps from the dentist's dog indicated that he also was on his own legs, and was, in all human probability, jumping at the mare's nose. as the rapturous beat of her hoofs died away on the down-grade, i recalled the assertion that she had pulled the lungs out of two men, and it seemed to me that the prisoner had caught the psychological moment on the hop. "they'll not ketch him," said m'cabe, with the flat calm of a broken man, "not to-night anyway. nor for a week maybe. he'll take to the mountains." the silence of the hills closed in upon us, and we were left in our original position, plus the lamp of the car, and minus our guns, the dentist's dog, and m'cabe's teeth. far, far away, from the direction of coppeen road, that sinister outpost, where evil rumours were launched, and the night trains were waylaid by the amber-bushes, a steady tapping sound advanced towards us. over the crest of the hill, a quarter of a mile away, a blazing and many-pointed star sprang into being, and bore down upon us. "a motor-bike!" ejaculated m'cabe. "take the light and thtop him--he wouldn't know what i wath thaying--if he ran over them they're done for! for the love o' merthy tell him to keep the left thide of the road!" i took the lamp, and ran towards the bicyclist, waving it as i ran. the star, now a moon of acetylene ferocity, slackened speed, and a voice behind it said: "what's up?" i stated the case with telegraphic brevity, and the motor-bicycle slid slowly past me. its rider had a gun slung across his back, my lamp revealed a crammed game-bag on the carrier behind him. "sorry i can't assist you," he called back to me, keeping carefully at the left-hand side of the road, "but i have an appointment." then, as an afterthought, "there's a first-rate dentist in owenford!" the red eye of the tail light glowed a farewell and passed on, like all the rest, into the night. i rejoined m'cabe. he clutched my arm, and shook it. "that wath jefferth! _jefferth_, i tell ye! the dirty poacher! and hith bag full of our birdth!" it was not till the lamp went out, which it did some ten minutes afterwards, that i drew m 'cabe from the scene of his loss, gently, as one deals with the bereaved, and faced with him the six-mile walk to owenford. printed in great britain by ballantyne, hanson & co. ltd. edinburgh and london _by the same authors_ some experiences of an irish r.m. with illustrations by e. [oe]. somerville. crown vo. further experiences of an irish r.m. with illustrations by e. [oe]. somerville. crown vo. some irish yesterdays. with illustrations by e. [oe]. somerville. crown vo. *** _in this volume is included a reprint of "slipper's abc of fox-hunting" with numerous illustrations._ all on the irish shore: irish sketches. with illustrations by e. [oe]. somerville. crown vo. an irish cousin. crown vo. the real charlotte. crown vo. the silver fox. crown vo. by e. [oe]. somerville the story of the discontented little elephant. told in pictures and rhyme. with coloured, and many other illustrations. oblong to. longmans, green and co. london, new york, bombay, calcutta, and madras the life of john marshall standard library edition in four volumes volume i [illustration: john marshall at from a miniature painted in paris] the life of john marshall by albert j. beveridge volume i frontiersman, soldier lawmaker - [illustration] boston and new york houghton mifflin company the riverside press cambridge copyright, , by albert j. beveridge copyright, , by houghton mifflin company all rights reserved preface the work of john marshall has been of supreme importance in the development of the american nation, and its influence grows as time passes. less is known of marshall, however, than of any of the great americans. indeed, so little has been written of his personal life, and such exalted, if vague, encomium has been paid him, that, even to the legal profession, he has become a kind of mythical being, endowed with virtues and wisdom not of this earth. he appears to us as a gigantic figure looming, indistinctly, out of the mists of the past, impressive yet lacking vitality, and seemingly without any of those qualities that make historic personages intelligible to a living world of living men. yet no man in our history was more intensely human than john marshall and few had careers so full of movement and color. his personal life, his characteristics and the incidents that drew them out, have here been set forth so that we may behold the man as he appeared to those among whom he lived and worked. it is, of course, marshall's public work with which we are chiefly concerned. his services as chief justice have been so lauded that what he did before he ascended the supreme bench has been almost entirely forgotten. his greatest opinions, however, cannot be fully understood without considering his previous life and experience. an account of marshall the frontiersman, soldier, legislator, lawyer, politician, diplomat, and statesman, and of the conditions he faced in each of these capacities, is essential to a comprehension of marshall the constructive jurist and of the problems he solved. in order to make clear the significance of marshall's public activities, those episodes in american history into which his life was woven have been briefly stated. although to the historian these are twice-told tales, many of them are not fresh in the minds of the reading public. to say that marshall took this or that position with reference to the events and questions of his time, without some explanation of them, means little to any one except to the historical scholar. in the development of his career there must be some clear understanding of the impression made upon him by the actions and opinions of other men, and these, accordingly, have been considered. the influence of his father and of washington upon john marshall was profound and determinative, while his life finally became so interlaced with that of jefferson that a faithful account of the one requires a careful examination of the other. vitally important in their effect upon the conduct and attitude of marshall and of the leading characters of his time were the state of the country, the condition of the people, and the tendency of popular thought. some reconstruction of the period has, therefore, been attempted. without a background, the picture and the figures in it lose much of their significance. the present volumes narrate the life of john marshall before his epochal labors as chief justice began. while this was the period during which events prepared him for his work on the bench, it was also a distinctive phase of his career and, in itself, as important as it was picturesque. it is my purpose to write the final part as soon as the nature of the task permits. for reading one draft of the manuscript of these volumes i am indebted to professor edward channing, of harvard university; dr. j. franklin jameson, of the carnegie foundation for historical research; professor william e. dodd, of chicago university; professor james a. woodburn, of indiana university; professor charles a. beard, of columbia university; professor charles h. ambler, of randolph-macon college; professor clarence w. alvord, of the university of illinois; professor d. r. anderson, of richmond college; dr. h. j. eckenrode, of richmond college; dr. archibald c. coolidge, director of the harvard university library; mr. worthington c. ford, of the massachusetts historical society; and mr. lindsay swift, editor of the boston public library. dr. william g. stanard, of the virginia historical society, has read the chapters which touch upon the colonial period. i have availed myself of the many helpful suggestions made by these gentlemen and i gratefully acknowledge my obligations to them. mr. swift and dr. eckenrode, in addition to reading early drafts of the manuscript, have read the last draft with particular care and i have utilized their criticisms. the proof has been read by mr. swift and the comment of this finished critic has been especially valuable. i am indebted in the highest possible degree to mr. worthington c. ford, of the massachusetts historical society, who has generously aided me with his profound and extensive knowledge of manuscript sources and of the history of the times of which this work treats. his sympathetic interest and whole-hearted helpfulness have not only assisted me, but encouraged and sustained me in the prosecution of my labors. in making these acknowledgments, i do not in the least shift to other shoulders the responsibility for anything in these volumes. that burden is mine alone. i extend my thanks to mr. a. p. c. griffin, assistant librarian, and mr. gaillard hunt, chief of the manuscripts division, of the library of congress, who have been unsparing in their efforts to assist me with all the resources of that great library. the officers and their assistants of the virginia state library, the boston public library, the library of harvard university, the manuscripts division of the new york public library, the massachusetts historical society, the pennsylvania historical society, and the virginia historical society have been most gracious in affording me all the sources at their command. i desire to express my appreciation for original material furnished me by several of the descendants and collateral relatives of john marshall. miss emily harvie, of richmond, virginia, placed at my disposal many letters of marshall to his wife. for the use of the book in which marshall kept his accounts and wrote notes of law lectures, i am indebted to mrs. john k. mason, of richmond. a large number of original and unpublished letters of marshall were furnished me by mr. james m. marshall, of front royal, virginia, mr. robert y. conrad, of winchester, virginia; mrs. alexander h. sands, of richmond, virginia; miss sallie marshall, of leeds, virginia; mrs. claudia jones, and mrs. fannie g. campbell of washington, d.c.; judge j. k. m. norton, of alexandria, virginia; mr. a. moore, jr., of berryville, virginia; dr. samuel eliot morison, of boston, massachusetts, and professor charles william dabney, of cincinnati, ohio. complete copies of the highly valuable correspondence of mrs. edward carrington were supplied by mr. john b. minor, of richmond, virginia, and by mr. carter h. fitzhugh, of lake forest, illinois. without the material thus generously opened to me, this narrative of marshall's life would have been more incomplete than it is and many statements in it would, necessarily, have been based on unsupported tradition. among the many who have aided me, judge james keith, of richmond, virginia, until recently president of the court of appeals of virginia; judge j. k. m. norton and the late miss nannie burwell norton of alexandria, virginia; mr. william marshall bullitt, of louisville, kentucky; mr. thomas marshall smith, of baltimore, maryland; mr. and mrs. alexander h. sands; mr. w. p. taylor and dr. h. norton mason, of richmond, virginia; mr. lucien keith, mr. william horgan, and mr. william c. marshall, of warrenton, virginia; judge henry h. downing and mr. aubrey g. weaver, of front royal, virginia, have rendered notable assistance in the gathering of data. i am under particular obligations to miss emily harvie for the use of the striking miniature of marshall, the reproduction of which appears as the frontispiece to the first volume; to mr. roland gray, of boston, for the right to reproduce the portrait by jarvis as the frontispiece of the second volume; to mr. douglas h. thomas of baltimore, maryland, for photographs of the portraits of william randolph, mary isham, and mary randolph keith; and to mr. charles edward marshall, of glen mary, kentucky, for permission to photograph the portrait of colonel thomas marshall. the large number of citations has made abbreviations necessary. at the end of each volume will be found a careful explanation of references, giving the full title of the work cited, together with the name of the author or editor, and a designation of the edition used. the index has been made by mr. david maydole matteson, of cambridge, massachusetts, and his careful work has added to whatever of value these volumes possess. albert j. beveridge contents i. ancestry and environment the defeat of braddock--influence on american opinion-- washington's heroism--effect on marshall's parents-- marshall's birth--american solidarity the first lesson taught him--marshall's ancestry--curious similarity to that of jefferson, to whom he was related--the paternal line: the "marshall legend"--maternal line: the randolphs, the ishams, and the keiths--character of marshall's parents--colonial virginia society--shiftless agriculture and abundant land--influence of slavery--jefferson's analysis--drinking heavy and universal--education of the gentry and of the common people--the social divisions-- causes of the aristocratic tone of virginia society-- the backwoodsmen--their character--superiority of an occasional frontier family--the marshalls of this class-- the illustrious men produced by virginia just before the revolution. ii. a frontier education marshall's wilderness birthplace--his father removes to the blue ridge--the little house in "the hollow"--neighbors few and distant--daily life of the frontier family-- marshall's delight in nature--effect on his physical and mental development--his admiration for his father--the father's influence over and training of his son--books: pope's poems--marshall commits to memory at the age of twelve many passages--the "essay on man"--marshall's father an assistant of washington in surveying the fairfax grant-- story of lord fairfax--his influence on washington and on marshall's father--effect on marshall--his father elected burgess from fauquier county--vestryman, sheriff, and leading man of his county--he buys the land in "the hollow"--john thompson, deacon, teaches marshall for a year--his father buys more land and removes to oak hill-- subscribes to the first american edition of blackstone-- military training interferes with marshall's reading of blackstone--he is sent to campbell's academy for a few months--marshall's father as burgess supports patrick henry, who defeats the tidewater aristocracy in the robinson loan-office contest--henry offers his resolutions on the stamp act: "if this be treason, make the most of it"-- marshall's father votes with henry-- and henry's "resolutions for arming and defense"--his famous speech: "give me liberty or give me death"--marshall's father again supports henry--marshall learns from his father of these great events--father and son ready to take the field against the british. iii. a soldier of the revolution the "minute men" of virginia--lieutenant john marshall drills his company and makes a war speech--his appearance in his nineteenth year--uniforms of the frontier--the sanguinary fight at great bridge--norfolk--the marshalls in the continental service, the father as major, the son as lieutenant--condition of the army--confusion of authority-- unreliability of militia "who are here to-day and gone to-morrow"--fatal effect of state control--inefficiency and powerlessness of congress--destitution of the troops: "our sick naked and well naked"--officers resign, privates desert--the harsh discipline required: men whipped, hanged, and shot--impression on marshall--he is promoted to be captain-lieutenant--the march through disaffected philadelphia--marshall one of picked men forming the light infantry--iron hill--the battle of the brandywine-- marshall's father and his virginians prevent entire disaster--marshall's part in the battle--the retreat-- the weather saves the americans--marshall one of rear guard under wayne--the army recovers and tries to stop the british advance--confused by false reports of the country people who are against the patriots "almost to a man"--philadelphia falls--the battle of germantown--marshall at the bloodiest point of the fight--the retreat of the beaten americans-- unreasonable demands of "public opinion"--further decline of american fortunes--duché's letter to washington: "how fruitless the expense of blood"--washington faces the british--the impending battle--marshall's vivid description-- the british withdraw. iv. valley forge and after the bitter winter of --the british in philadelphia: abundance of provisions, warm and comfortable quarters, social gayeties, revels of officers and men--the americans at valley forge, "the most celebrated encampment in the world's history": starvation and nakedness--surgeon waldo's diary of "camp-life": "i'll live like a chameleon upon air"--waldo's description of soldiers' appearance--terrible mortality from sickness--the filthy "hospitals"--moravians at bethlehem--the good samaritans to the patriots--marshall's cheerfulness: "the best tempered man i ever knew"--his pranks and jokes--visitors to the camp remark his superior intelligence--settles disputes of his comrades--hard discipline at valley forge: a woman given a hundred lashes-- washington alone holds army together--jealousy of and shameful attacks upon him--the "conway cabal"--his dignity in the face of slander--his indignant letter to congress--faith of the soldiers in washington--the absurd popular demand that he attack philadelphia--the amazing inferiority of congress-- ablest men refuse to attend--washington's pathetic letter on the subject: "send your ablest men to congress; where is jefferson"--talk of the soldiers at valley forge--jefferson in the virginia legislature--comparison of marshall and jefferson at this period--marshall appointed deputy judge advocate of the army--burnaby's appeal to washington to stop the war: efforts at reconciliation--washington's account of the sufferings of the army--the spring of --sports in camp--marshall the best athlete in his regiment: "silver heels" marshall--the alliance with the king of france-- rejoicing of the americans at valley forge--washington has misgivings--the services of baron von steuben--lord howe's departure--the "mischianza"--the british evacuate philadelphia--the americans quick in pursuit--the battle of monmouth--marshall in the thick of the fight--his fairness to lee--promoted to be captain--one of select light infantry under wayne, assigned to take stony point--the assault of that stronghold--marshall in the reserve command--one of the picked men under "light horse harry" lee--the brilliant dash upon powles hook--term of enlistment of marshall's regiment expires and he is left without a command--returns to virginia while waiting for new troops to be raised--arnold invades virginia--jefferson is governor; he fails to prepare--marshall one of party to attack the british--effect of jefferson's conduct on marshall and the people--comment of virginia women--inquiry in legislature as to jefferson's conduct-- effect of marshall's army experience on his thinking--the roots of his great nationalist opinions run back to valley forge. v. marriage and law beginnings marshall's romance--visits his father who is commanding at yorktown--mythical story of his father's capture at charleston--the ambler family--rebecca burwell, jefferson's early love--attractiveness of the amblers--the "ball" at yorktown--high expectations of the young women concerning marshall--their disappointment at his uncouth appearance and rustic manners--he meets mary ambler--mutual love at first sight--her sister's description of the ball and of marshall-- the courtship--marshall goes to william and mary college for a few weeks--description of the college--marshall elected to the phi beta kappa society--attends the law lectures of mr. wythe--the ambler daughters pass though williamsburg-- the "ball" at "the palace"--eliza ambler's account: "marshall was devoted to my sister"--marshall leaves college and follows mary ambler to richmond--secures license to practice law--resigns his command--walks to philadelphia to be inoculated against smallpox--tavern-keeper refuses to take him in because of his appearance--returns to virginia and resumes his courtship of mary ambler--marshall's account of his love-making--his sister-in-law's description of marshall's suit--marshall's father goes to kentucky and returns--marshall elected to the legislature from fauquier county--he marries mary ambler: "but one solitary guinea left"--financial condition of marshall's father at this time--lack of ready money everywhere--marshall's account-- he sets up housekeeping in richmond--description of richmond at that time--brilliant bar of the town--"marshall's slender legal equipment"--the notes he made of mr. wythe's lectures-- his account book--examples of his earnings and expenditures from until --life of the period--his jolly letter to monroe--his books--elected city recorder--marshall's first notable case: hite vs. fairfax--his first recorded argument-- his wife becomes an invalid--his tender care of her--mrs. carrington's account: marshall "always and under every circumstance, an enthusiast in love." vi. in the legislature and council of state in the house of delegates--the building where the legislature met--costumes and manners of the members---marshall's popularity and his father's influence secure his election-- he is appointed on important committees--his first vote-- examples of legislative business--poor quality of the legislature: madison's disgust, washington's opinion-- marshall's description and remarkable error--he is elected member of council of state--pendleton criticizes the elevation of marshall--work as member of council--resigns from council because of criticism of judges--seeks and secures reëlection to legislature from fauquier county-- inaccuracy of accepted account of these incidents--marshall's letter to monroe stating the facts--becomes champion of needy revolutionary soldiers--leads fight for relief of thomas paine--examples of temper of the legislature--marshall favors new constitution for virginia--the "potowmack company"--bills concerning courts--reform of the high court of chancery-- the religious controversy--state of religion in virginia-- marshall's languid interest in the subject--great question of the british debts--long-continued fight over payment or confiscation--marshall steadily votes and works for payment of the debts--effect of this contest on his economic and political views--his letter to monroe--instability of legislature: a majority of thirty-three changed in two weeks to an adverse majority of forty-nine--no national government-- resolution against allowing congress to lay any tax whatever: "may prove destructive of rights and liberties of the people"--the debts of the confederation--madison's extradition bill--contempt of the pioneers for treaties--settlers' unjust and brutal treatment of the indians--struggle over madison's bill--patrick henry saves it--marshall supports it--henry's bill for amalgamation of indians and whites--marshall regrets its defeat--anti-national sentiment of the people--steady change in marshall's ideas--mercantile and financial interests secure the constitution--shall virginia call a convention to ratify it?--marshall harmonizes differences and convention is called--he is in the first clash over nationalism. vii. life of the people: community isolation the state of the country--a résumé of conditions--revolutionary leaders begin to doubt the people--causes of this doubt-- isolation of communities--highways and roads--difficulty and danger of travel--the road from philadelphia to boston: between boston and new york--roads in interior of new england, new york, philadelphia, and new jersey--jefferson's account of roads from richmond to new york--traveler lost in the "very thick woods" on way from alexandria to mount vernon to visit washington--travel and transportation in virginia--ruinous effect on commerce-- chastellux lost on journey to monticello to visit jefferson-- talleyrand's description of country--slowness of mails--three weeks or a month and sometimes two months required between virginia and new york--mail several months in reaching interior towns--news that massachusetts had ratified the constitution eight days in reaching new york--ocean mail service--letters opened by postmasters or carriers--scarcity of newspapers-- their untrustworthiness--their violent abuse of public men-- franklin's denunciation of the press: he advises "the liberty of the cudgel" to restrain "the liberty of the press"-- jefferson's disgust--the country newspaper: freneau's "the country printer"--the scantiness of education--teachers and schools--the backwoodsmen--the source of abnormal american individualism--the successive waves of settlers--their ignorance, improvidence, and lack of social ideals--habits and characteristics of virginians--jefferson's harsh description of them--food of the people--their houses--continuous drinking of brandy, rum, and whiskey--this common to whole country-- lack of community consciousness--abhorrence of any national government. viii. popular antagonism to government thomas paine's "common sense"--its tremendous influence: "government, even in its best state, is but a necessary evil"--popular antagonism to the very idea of government-- impossibility of correcting falsehoods told to the people-- popular credulity--the local demagogue--north carolina preacher's idea of the constitution--grotesque campaign story about washington and adams--persistence of political canard against levin powell--amazing statements about the society of the cincinnati: Ædanus burke's pamphlet; mirabeau's pamphlet; jefferson's denunciation--marshall and his father members of the cincinnati--effect upon him of the extravagant abuse of this patriotic order--popular desire for general division of property and repudiation of debts--madison's bitter comment-- jay on popular greed and "impatience of government"--paper money--popular idea of money--shays's rebellion--marshall's analysis of its objects--knox's report of it--madison comes to the conclusion that "the bulk of mankind" are incapable of dealing with weighty subjects--washington in despair--he declares mankind unfit for their own government--marshall also fears that "man is incapable of governing himself"-- jefferson in paris--effect on his mind of conditions in france--his description of the french people--jefferson applauds shays's rebellion: "the tree of liberty must be refreshed by the blood of patriots and tyrants"--influence of french philosophy on jefferson--the impotence of congress under the confederation--dishonorable conduct of the states-- leading men ascribe evil conditions to the people themselves-- views of washington, jay, and madison--state sovereignty the shield of turmoil and baseness--efforts of commercial and financial interests produce the constitution--madison wants a national government with power of veto on all state laws "whatsoever"--jefferson thinks the articles of confederation "a wonderfully perfect instrument"--he opposes a "strong government"--is apprehensive of the constitution--thinks destruction of credit a good thing--wishes america "to stand with respect to europe precisely on the footing of china"-- the line of cleavage regarding the constitution--marshall for the constitution. ix. the struggle for ratification the historic convention of assembles--richmond at that time--general ignorance of the constitution--even most members of the convention poorly informed--vague popular idea of constitution as something foreign, powerful, and forbidding-- people in virginia strongly opposed to it--the virginia debate to be the greatest ever held over the constitution--the revolutionary character of the constitution: would not have been framed if the people had known of the purposes of the federal convention at philadelphia: "a child of fortune"-- ratification hurried--pennsylvania convention: hastily called, physical violence, small number of people vote at election of members to pennsylvania convention--people's ignorance of the constitution--charges of the opposition--"the humble address of the low born"--debate in pennsylvania convention--able "address of minority"--nationalism of the constitution the principal objection--letters of "centinel": the constitution "a spurious brat"--attack on robert morris--constitutionalist replies: "sowers of sedition"--madison alarmed--the struggle in massachusetts--conciliatory tactics of constitutionalists-- upper classes for constitution--common people generally opposed--many towns refuse to send delegates to the convention--contemporary descriptions of the elections-- high ability and character of constitutionalist members-- self-confessed ignorance and incapacity of opposition: madison writes that there is "scarcely a man of respectability among them"--their pathetic fight against the constitution--examples of their arguments--the bargain with hancock secures enough votes to ratify--the slender majority: one hundred and sixty-eight vote against ratification--methods of constitutionalists after ratification--widgery's amusing account: hogsheads of rum--gerry's lament--bribery charged-- new hampshire almost rejects constitution--convention adjourned to prevent defeat--"little information among the people," but most "men of property and abilities" for constitution-- constitution receives no deliberate consideration until debated in the virginia convention--notable ability of the leaders of both sides in the virginia contest. x. in the great convention virginia the deciding state--anxiety of constitutionalists in other states--hamilton writes madison: "no hope unless virginia ratifies"--economic and political importance of virginia--extreme effort of both sides to elect members to the convention--preëlection methods of the constitutionalists-- they capture randolph--marshall elected from opposition constituency--preëlection methods of anti-constitutionalists-- the convention meets--neither side sure of a majority-- perfect discipline and astute convention tactics of the constitutionalists--they secure the two powerful offices of the convention--the opposition have no plan of action-- description of george mason--his grave error in parliamentary tactics--constitutionalists take advantage of it: the constitution to be debated clause by clause--analysis of the opposing forces: an economic class struggle, nationalism against provincialism--henry tries to remedy mason's mistake-- pendleton speaks and the debate begins--nicholas speaks--his character and personal appearance--patrick henry secures the floor--description of henry--he attacks the constitution: why "_we the people_ instead of _we_ the states"? randolph replies--his manner and appearance--his support of the constitution surprises the opposition--his speech--his about-face saves the constitution--the clinton letter: if randolph discloses it the anti-constitutionalists will win-- he keeps it from knowledge of the convention--decisive importance of randolph's action--his change ascribed to improper motives--mason answers randolph and again makes tactical error--madison fails to speak--description of edmund pendleton--he addresses the convention: "the war is between government and licentiousness"--"light horse harry" lee--the ermine and the sword--henry secures the floor--his great speech: the constitution "a revolution as radical as that which separated us from great britain"--the proposed national government something foreign and monstrous--"this government is not a virginian but an american government"--marshall studies the arguments and methods of the debaters--randolph answers henry: "i am a child of the revolution"--his error concerning josiah philips--his speech ineffective--description of james madison--he makes the first of his powerful expositions of the constitution, but has little or no effect on the votes of the members--speech of youthful francis corbin--randolph's futile effort--madison makes the second of his masterful speeches--henry replies--his wonderful art-- he attacks randolph for his apostasy--he closes the first week's debate with the convention under his spell. xi. the supreme debate political managers from other states appear--gouverneur morris and robert morris for the constitutionalists and eleazer oswald for the opposition--morris's letter: "depredations on my purse"--grayson's letter: "our affairs suspended by a thread"--opening second week of the debate-- the new academy crowded--henry resumes his speech--appeals to the kentucky members, denounces secrecy of federal convention, attacks nationalism--lee criticizes lobbying "out of doors" and rebukes henry--randolph attacks henry: "if our friendship must fall, _let it fall like lucifer, never to rise again_"--randolph challenges henry: a duel narrowly averted--personal appearance of james monroe-- he speaks for the revolutionary soldiers against the constitution and makes no impression--marshall put forward by the constitutionalists--description of him: badly dressed, poetic-looking, "habits convivial almost to excess"-- best-liked man in the convention; considered an orator-- marshall's speech: constitutionalists the "firm friends of liberty"; "we, sir, idolize democracy"; only a national government can promote the general welfare--marshall's argument his first recorded expression on the constitution-- most of speech on necessity of providing against war and inspired by his military experience--description of benjamin harrison--mason attacks power of national taxation and sneers at the "well-born"--he denounces randolph--lee answers with a show of anger--william grayson secures the floor--his character, attainments, and appearance--his learned and witty speech: "we are too young to know what we are good for"--pendleton answers: "government necessary to protect liberty"--madison makes his fourth great argument--henry replies: "the tyranny of philadelphia [national government] may be like the tyranny of george iii, a horrid, wretched, dreadful picture"; henry's vision of the west--tremendous effect on the convention--letter of gouverneur morris to hamilton describing the convention--madison's report to hamilton and to washington: "the business is in the most ticklish state that can be imagined"--marshall speaks again-- military speech: "_united we are strong, divided we fall_"-- grayson answers marshall--mason and henry refer to "vast speculations": "we may be taxed for centuries to give advantage to rapacious speculators"--grayson's letter to dane--the advantage with the anti-constitutionalists at the end of the second week. xii. the strategy of victory the climax of the fight--the judiciary the weakest point for the constitutionalists--reasons for this--especially careful plans of the constitutionalists for this part of the debate-- pendleton expounds the judiciary clause--mason attacks it-- his charge as to secret purpose of many constitutionalists-- his extreme courtesy causes him again to make a tactical error--he refers to the fairfax grant--a clever appeal to members from the northern neck--madison's distinguished address--henry answers madison--his thrilling speech: "old as i am, it is probable i may yet have the appellation of _rebel_. as to this government [the constitution] i despise and abhor it"--marshall takes the floor--selected by the constitutionalists to make the principal argument for the judiciary clause--his speech prepared--the national judiciary "will benefit collective society"; national courts will be as fair as state courts; independence of judges necessary; if congress should pass an unconstitutional law the national courts "_would declare it void_"; they alone the only "protection from an infringement of the constitution"; state courts "crowded with suits which the life of man will not see determined"; national courts needed to relieve this congestion; under the constitution, states cannot be sued in national courts; the constitution does not exclude trial by jury: "does the word _court_ only mean the judges?"; comparison with the judiciary establishment of virginia; reply to mason's argument on the fairfax title; "what security have you for justice? the independence of your judiciary!"--marshall's speech unconnected and discursive, but the constitutionalists rest their case upon it--madison's report to hamilton: "if we can weather the storm against the judiciary i shall hold the danger to be pretty well over"-- anti-constitutionalists try to prolong debate until meeting of legislature which is strongly against the constitution-- secession threatened--madison's letter to hamilton--contest so close that "ordinary casualties may vary the result"-- henry answers marshall--his compliment to the young lawyer-- his reference to the indians arouses colonel stephen who harshly assails henry--nicholas insults henry, who demands an explanation--debate draws to a close--mason intimates forcible resistance to the constitution--lee rebukes him-- the constitutionalists forestall henry and offer amendments-- henry's last speech: "nine-tenths of the people" against the constitution; henry's vision of the future; a sudden and terrific storm aids his dramatic climax; members and spectators in awe--the legislature convenes--quick, resolute action of the constitutionalists--henry admits defeat--the virginia amendments--absurdity of some of them--necessary to secure ratification--marshall on the committee to report amendments--constitutionalists win by a majority of only ten--of these, two vote against their instructions and eight vote against the well-known desires of their constituents-- the clinton letter at last disclosed--mason's wrath--henry prevents anti-constitutionalists from talking measures to resist the new national government--washington's account: "impossible for anybody not on the spot to conceive what the delicacy and danger of our situation have been." appendix i. will of thomas marshall, "carpenter" ii. will of john marshall "of the forest" iii. deed of william marshall to john marshall "of the forest" iv. memorial of thomas marshall for militarye moluments works cited in this volume illustrations john marshall at _colored frontispiece_ from a miniature painted on ivory by an unknown artist. it was executed in paris in - , when marshall was there on the x. y. z. mission. it is now in the possession of miss emily harvie, of richmond, virginia. it is the only portrait in existence of marshall at this period of his life and faithfully portrays him as he was at the time of his intellectual duel with talleyrand. colonel william randolph from a copy in the possession of mr. douglas h. thomas, of baltimore, after the original portrait in the possession of mr. edward c. mayo, of richmond. the painter of the original is unknown. it was painted about and has passed down through successive generations of the family. mr. thomas's copy is a faithful one, and has been used for reproduction here because the original is not sufficiently clear and distinct for the purpose. mary isham randolph, wife of colonel william randolph from a copy in the possession of mr. douglas h. thomas, of baltimore, after the original in the possession of miss anne mortimer minor. the original portrait was painted about by an unknown artist. it is incapable of satisfactory reproduction. colonel thomas marshall, the father of john marshall from a portrait in the possession of charles edward marshall, of glen mary, kentucky. this is the only portrait or likeness of any kind in existence of john marshall's father. it was painted at some time between and and was inherited by charles edward marshall from his parents, charles edward and judith langhorne marshall. the name of the painter of this unusual portrait is not known. mary randolph (keith) marshall, wife of thomas marshall and mother of john marshall from a portrait in the possession of miss sallie marshall, of leeds, virginia. the portrait was painted at some time between and , but the painter's name is unknown. the reproduction is from a photograph furnished by mr. douglas h. thomas. "the hollow" the blue ridge home of the marshall family where john marshall lived from early childhood to his eighteenth year. the house is situated on a farm at markham, va. from a photograph. oak hill from a water-color in the possession of mr. thomas marshall smith, of baltimore. the small house at the rear of the right of the main building was the original dwelling, built by john marshall's father in . the marshall family lived here until after the revolution. the large building was added nearly forty years afterward by thomas marshall, son of the chief justice. the name of the painter is unknown. oak hill this is the original house, built in and carefully kept in repair. the brick pavement is a modern improvement. from a photograph. facsimile of the last page of a letter from john marshall to his wife, describing their courtship this letter was written at washington, february , , forty-one years after their marriage. no part of it has ever before been published. mary ambler marshall, the wife of john marshall a crayon drawing from the original painting now in the possession of mrs. carroll, a granddaughter of john marshall, living at leeds manor, va. this is the only painting of mrs. marshall in existence and the name of the artist is unknown. richmond in from a painting in the rooms of the virginia historical society. facsimile of a page of marshall's account book, may, in this book marshall kept his accounts of receipts and expenses for twelve years after his marriage in . in the first part of it he also recorded his notes of law lectures during his brief attendance at william and mary college. the original volume is owned by mrs. john k. mason, of richmond. facsimiles of signatures of john marshall at twenty-nine and forty-two and of thomas marshall these signatures are remarkable as showing the extreme dissimilarity between the signature of marshall as a member of the council of state before he was thirty and his signature in his mature manhood, and also as showing the basic similarity between the signatures of marshall and his father. the signature of marshall as a member of the council of state in is from the original minutes of the council in the archives of the virginia state library. his signature is from a letter to his wife, the original of which is in the possession of miss emily harvie, of richmond. the signature of thomas marshall is from the original roster of the officers of his regiment in the manuscripts division of the library of congress. facsimile of the first page of a letter from marshall to james monroe, april , from the original in the manuscript division of the new york public library. this letter has never before been published. it is extremely important in that it corrects extravagant errors concerning marshall's resignation from the council of state and his reëlection to the legislature. john marshall from a profile drawing by charles balthazar julien fèvre de saint mémin, in the possession of miss emily harvey of richmond, va., a granddaughter of john marshall. autograph from manuscript collection in the library of the boston athenæum. george wythe from an engraving by j. b. longacre after a portrait by an unknown painter in the possession of the virginia state library. george wythe was professor of law at william and mary college during marshall's brief attendance. john marshall from a painting by j. b. martin in the robe room of the supreme court of the united states, washington, d.c. patrick henry from a copy (in the possession of the westmoreland club, of richmond) of the portrait by thomas sully. sully, who never saw patrick henry himself, painted the portrait from a miniature on ivory done by a french artist in richmond about . john marshall, under date of december , , attested its excellence as follows: "i have been shown a painting of the late mr. henry, painted by mr. sully, now in possession of mr. webster, which i think a good likeness." list of abbreviated titles most frequently cited _all references here are to the list of authorities at the end of this volume._ beard: _econ. i. c._ _see_ beard, charles a. economic interpretation of the constitution of the united states. beard: _econ. o. j. d._ _see_ beard, charles a. economic origins of jeffersonian democracy. bruce: _econ._ _see_ bruce, philip alexander. economic history of virginia in the seventeeth century. bruce: _inst._ _see_ bruce, philip alexander. institutional history of virginia in the seventeeth century. _cor. rev._: sparks. _see_ sparks, jared. correspondence of the revolution. eckenrode: _r. v._ _see_ eckenrode, h. j. the revolution in virginia. eckenrode: _s. of c. and s._ _see_ eckenrode, h. j. separation of church and state in virginia. jefferson's _writings_: washington. _see_ jefferson, thomas. writings. edited by h. a. washington. monroe's _writings_: hamilton. _see_ monroe, james. writings. edited by stanislaus murray hamilton. _old family letters._ _see_ adams, john. old family letters. edited by alexander biddle. wertenbaker: _p. and p._ _see_ wertenbaker, thomas j. patrician and plebeian in virginia; or the origin and development of the social classes of the old dominion. wertenbaker: _v. u. s._ _see_ wertenbaker, thomas j. virginia under the stuarts, - . _works_: adams. _see_ adams, john. works. edited by charles francis adams. _works_: ford. _see_ jefferson, thomas. works. federal edition. edited by paul leicester ford. _works_: hamilton. _see_ hamilton, alexander. works. edited by john c. hamilton. _works_: lodge. _see_ hamilton, alexander. works. federal edition. edited by henry cabot lodge. _writings_: conway. _see_ paine, thomas. writings. edited by moncure daniel conway. _writings_: ford. _see_ washington, george. writings. edited by worthington chauncey ford. _writings_: hunt. _see_ madison, james. writings. edited by gaillard hunt. _writings_: smyth. _see_ franklin, benjamin. writings. edited by albert henry smyth. _writings_: sparks. _see_ washington, george. writings. edited by jared sparks. the life of john marshall the life of john marshall chapter i ancestry and environment often do the spirits of great events stride on before the events and in to-day already walks to-morrow. (schiller.) i was born an american; i will live an american; i shall die an american. (webster.) "the british are beaten! the british are beaten!" from cabin to cabin, from settlement to settlement crept, through the slow distances, this report of terror. the astounding news that braddock was defeated finally reached the big plantations on the tidewater, and then spread dismay and astonishment throughout the colonies. the painted warriors and the uniformed soldiers of the french-indian alliance had been growing bolder and bolder, their ravages ever more daring and bloody.[ ] already the fear of them had checked the thin wave of pioneer advance; and it seemed to the settlers that their hereditary enemies from across the water might succeed in confining british dominion in america to the narrow strip between the ocean and the mountains. for the royal colonial authorities had not been able to cope with their foes.[ ] but there was always the reserve power of great britain to defend her possessions. if only the home government would send an army of british veterans, the colonists felt that, as a matter of course, the french and indians would be routed, the immigrants made safe, and the way cleared for their ever-swelling thousands to take up and people the lands beyond the alleghanies. so when at last, in , the redoubtable braddock and his red-coated regiments landed in virginia, they were hailed as deliverers. there would be an end, everybody said, to the reign of terror which the atrocities of the french and indians had created all along the border. for were not the british grenadiers invincible? was not edward braddock an experienced commander, whose bravery was the toast of his fellow officers?[ ] so the colonists had been told, and so they believed. they forgave the rudeness of their british champions; and braddock marched away into the wilderness carrying with him the unquestioning confidence of the people.[ ] it was hardly thought necessary for any virginia fighting men to accompany him; and that haughty, passionate young virginia soldier, george washington (then only twenty-three years of age, but already the chief military figure of the old dominion), and his virginia rangers were invited to accompany braddock more because they knew the country better than for any real aid in battle that was expected of them. "i have been importuned," testifies washington, "to make this campaign by general braddock, ... conceiving ... that the ... knowledge i have ... of the country, indians, &c. ... might be useful to him."[ ] so through the ancient and unbroken forests braddock made his slow and painful way.[ ] weeks passed; then months.[ ] but there was no impatience, because everybody knew what would happen when his scarlet columns should finally meet and throw themselves upon the enemy. yet this meeting, when it came, proved to be one of the lesser tragedies of history, and had a deep and fateful effect upon american public opinion and upon the life and future of the american people.[ ] time has not dulled the vivid picture of that disaster. the golden sunshine of that july day; the pleasant murmur of the waters of the monongahela; the silent and somber forests; the steady tramp, tramp of the british to the inspiriting music of their regimental bands playing the martial airs of england; the bright uniforms of the advancing columns giving to the background of stream and forest a touch of splendor; and then the ambush and surprise; the war-whoops of savage foes that could not be seen; the hail of invisible death, no pellet of which went astray; the pathetic volleys which the doomed british troops fired at hidden antagonists; the panic; the rout; the pursuit; the slaughter; the crushing, humiliating defeat![ ] most of the british officers were killed or wounded as they vainly tried to halt the stampede.[ ] braddock himself received a mortal hurt.[ ] raging with battle lust, furious at what he felt was the stupidity and cowardice of the british regulars,[ ] the youthful washington rode among the fear-frenzied englishmen, striving to save the day. two horses were shot under him. four bullets rent his uniform.[ ] but, crazed with fright, the royal soldiers were beyond human control. only the virginia rangers kept their heads and their courage. obeying the shouted orders of their young commander, they threw themselves between the terror-stricken british and the savage victors; and, fighting behind trees and rocks, were an ever-moving rampart of fire that saved the flying remnants of the english troops. but for washington and his rangers, braddock's whole force would have been annihilated.[ ] colonel dunbar and his fifteen hundred british regulars, who had been left a short distance behind as a reserve, made off to philadelphia as fast as their panic-winged feet could carry them.[ ] so everywhere went up the cry, "the british are beaten!" at first rumor had it that the whole force was destroyed, and that washington had been killed in action.[ ] but soon another word followed hard upon this error--the word that the boyish virginia captain and his rangers had fought with coolness, skill, and courage; that they alone had prevented the extinction of the british regulars; that they alone had come out of the conflict with honor and glory. thus it was that the american colonists suddenly came to think that they themselves must be their own defenders. it was a revelation, all the more impressive because it was so abrupt, unexpected, and dramatic, that the red-coated professional soldiers were not the unconquerable warriors the colonists had been told that they were.[ ] from colonial "mansion" to log cabin, from the provincial "capitals" to the mean and exposed frontier settlements, braddock's defeat sowed the seed of the idea that americans must depend upon themselves.[ ] as bacon's rebellion at jamestown, exactly one hundred years before independence was declared at philadelphia, was the beginning of the american revolution in its first clear expression of popular rights,[ ] so braddock's defeat was the inception of that same epoch in its lesson of american military self-dependence.[ ] down to concord and lexington, great bridge and bunker hill, the overthrow of the king's troops on the monongahela in was a theme of common talk among men, a household legend on which american mothers brought up their children.[ ] close upon the heels of this epoch-making event, john marshall came into the world. he was born in a little log cabin in the southern part of what now is fauquier county, virginia (then a part of prince william), on september , ,[ ] eleven weeks after braddock's defeat. the marshall cabin stood about a mile and a half from a cluster of a dozen similar log structures built by a handful of german families whom governor spotswood had brought over to work his mines. this little settlement was known as germantown, and was practically on the frontier.[ ] thomas marshall, the father of john marshall, was a close friend of washington, whom he ardently admired. they were born in the same county, and their acquaintance had begun, apparently, in their boyhood.[ ] also, as will presently appear, thomas marshall had for about three years been the companion of washington, when acting as his assistant in surveying the western part of the fairfax estate.[ ] from that time forward his attachment to washington amounted to devotion.[ ] also, he was, like washington, a fighting man.[ ] it seems strange, therefore, that he did not accompany his hero in the braddock expedition. there is, indeed, a legend that he did go part of the way.[ ] but this, like so many stories concerning him, is untrue.[ ] the careful roster, made by washington of those under his command,[ ] does not contain the name of thomas marshall either as officer or private. because of their intimate association it is certain that washington would not have overlooked him if he had been a member of that historic body of men. so, while the father of john marshall was not with his friend and leader at braddock's defeat, no man watched that expedition with more care, awaited its outcome with keener anxiety, or was more affected by the news, than thomas marshall. beneath no rooftree in all the colonies, except, perhaps, that of washington's brother, could this capital event have made a deeper impression than in the tiny log house in the forests of prince william county, where john marshall, a few weeks afterwards, first saw the light of day. wars and rumors of wars, ever threatening danger, and stern, strong, quiet preparation to meet whatever befell--these made up the moral and intellectual atmosphere that surrounded the marshall cabin before and after the coming of thomas and mary marshall's first son. the earliest stories told this child of the frontier[ ] must have been those of daring and sacrifice and the prevailing that comes of them. almost from the home-made cradle john marshall was taught the idea of american solidarity. braddock's defeat, the most dramatic military event before the revolution,[ ] was, as we have seen, the theme of fireside talk; and from this grew, in time, the conviction that americans, if united,[ ] could not only protect their homes from the savages and the french, but defeat, if need be, the british themselves.[ ] so thought the marshalls, father and mother; and so they taught their children, as subsequent events show. it was a remarkable parentage that produced this child who in manhood was to become the master-builder of american nationality. curiously enough, it was exactly the same mingling of human elements that gave to the country that great apostle of the rights of man, thomas jefferson. indeed, jefferson's mother and marshall's grandmother were first cousins. the mother of thomas jefferson was jane randolph, daughter of isham randolph of turkey island; and the mother of john marshall was mary randolph keith, the daughter of mary isham randolph, whose father was thomas randolph of tuckahoe, the brother of jefferson's maternal grandfather. thus, thomas jefferson was the great-grandson and john marshall the great-great-grandson of william randolph and mary isham. perhaps no other couple in american history is so remarkable for the number of distinguished descendants. not only were they the ancestors of thomas jefferson and john marshall, but also of "light horse harry" lee, of revolutionary fame, edmund randolph, washington's first attorney-general, john randolph of roanoke, george randolph, secretary of war under the confederate government, and general robert e. lee, the great southern military leader of the civil war.[ ] the virginia randolphs were one of the families of that proud colony who were of undoubted gentle descent, their line running clear and unbroken at least as far back as . the ishams were a somewhat older family, their lineage being well established to . while knighthood was conferred upon one ancestor of mary isham, the randolph and isham families were of the same social stratum, both being of the english gentry.[ ] the virginia randolphs were brilliant in mind, physically courageous, commanding in character, generally handsome in person, yet often as erratic as they were gifted. [illustration: colonel william randolph] [illustration: mary isham randolph] when the gentle randolph-isham blood mingled with the sturdier currents of the common people, the result was a human product stronger, steadier, and abler than either. so, when jane randolph became the wife of peter jefferson, a man from the grass roots, the result was thomas jefferson. the union of a daughter of mary randolph with thomas marshall, a man of the soil and forests, produced john marshall.[ ] physically and mentally, peter jefferson and thomas marshall were much alike. both were powerful men of great stature. both were endowed with rare intellectuality.[ ] both were hard-working, provident, and fearless. even their occupations were the same: both were land surveyors. the chief difference between them was that, whereas peter jefferson appears to have been a hearty and convivial person,[ ] thomas marshall seems to have been self-contained though adventurous, and of rather austere habits. each became the leading man of his county[ ] and both were chosen members of the house of burgesses.[ ] on the paternal side, it is impossible to trace the origin of either peter jefferson[ ] or thomas marshall farther back than their respective great-grandfathers, without floundering, unavailingly, in genealogical quicksands. thomas marshall was the son of a very small planter in westmoreland county, virginia. october , , three years before thomas was born, his father, john marshall "of the forest," acquired by deed, from william marshall of king and queen county, two hundred acres of poor, low, marshy land located on appomattox creek.[ ] little as the value of land in virginia then was, and continued to be for three quarters of a century afterwards,[ ] this particular tract seems to have been of an especially inferior quality. the deed states that it is a part of twelve hundred acres which had been granted to "jno. washington & thos. pope, gents ... & by them lost for want of seating." here john marshall "of the forest"[ ] lived until his death in , and here on april , , thomas marshall was born. during the quarter of a century that this john marshall remained on his little farm, he had become possessed of several slaves, mostly, perhaps, by natural increase. by his will he bequeaths to his ten children and to his wife six negro men and women, ten negro boys and girls, and two negro children. in addition to "one negro fellow named joe and one negro woman named cate" he gives to his wife "one gray mair named beauty and side saddle also six hogs also i leave her the use of my land during her widowhood, and afterwards to fall to my son thomas marshall and his heirs forever."[ ] one year later the widow, elizabeth marshall, deeded half of this two hundred acres to her son thomas marshall.[ ] such was the environment of thomas marshall's birth, such the property, family, and station in life of his father. beyond these facts, nothing positively is known of the ancestry of john marshall on his father's side. marshall himself traces it no further back than his grandfather. "my father, thomas marshall, was the eldest son of john marshall, who intermarried with a miss markham and whose parents migrated from wales, and settled in the county of westmoreland, in virginia, where my father was born."[ ] it is probable, however, that marshall's paternal great-grandfather was a carpenter of westmoreland county. a thomas marshall, "carpenter," as he describes himself in his will, died in that county in . he devised his land to his son william. a william marshall of king and queen county deeded to john marshall "of the forest," for five shillings, the two hundred acres of land in westmoreland county, as above stated.[ ] the fair inference is that this william was the elder brother of john "of the forest" and that both were sons of thomas the "carpenter." [illustration: thomas marshall] beyond his paternal grandfather or at furthest his great-grandfather, therefore, the ancestry of john marshall, on his father's side, is lost in the fogs of uncertainty.[ ] it is only positively known that his grandfather was of the common people and of moderate means.[ ] concerning his paternal grandmother, nothing definitely is established except that she was elizabeth markham, daughter of lewis markham, once sheriff of westmoreland county.[ ] john marshall's lineage on his mother's side, however, is long, high, and free from doubt, not only through the randolphs and ishams, as we have seen, but through the keiths. for his maternal grandfather was an episcopal clergyman, james keith, of the historic scottish family of that name, who were hereditary earls marischal of scotland. the keiths had been soldiers for generations, some of them winning great renown.[ ] one of them was james keith, the prussian field marshal and ablest of the officers of frederick the great.[ ] james keith, a younger son of this distinguished family, was destined for the church;[ ] but the martial blood flowing in his veins asserted itself and, in his youth, he also became a soldier, upholding with arms the cause of the pretender. when that rebellion was crushed, he fled to virginia, resumed his sacred calling, returned to england for orders, came back to virginia[ ] and during his remaining years performed his priestly duties with rare zeal and devotion.[ ] the motto of the keiths of scotland was "veritas vincit," and john marshall adopted it. during most of his life he wore an amethyst with the ancient keith motto engraved upon it.[ ] when past middle life the scottish parson married mary isham randolph,[ ] granddaughter of william randolph and mary isham. in their daughter, mary randolph keith, married thomas marshall and became the mother of john marshall. "my mother was named mary keith, she was the daughter of a clergyman, of the name of keith, who migrated from scotland and intermarried with a miss randolph of james river" is marshall's comment on his maternal ancestry.[ ] not only was john marshall's mother uncommonly well born, but she was more carefully educated than most virginia women of that period.[ ] her father received in aberdeen the precise and methodical training of a scottish college;[ ] and, as all parsons in the virginia of that time were teachers, it is certain that he carefully instructed his daughter. he was a deeply religious man, especially in his latter years,--so much so, indeed, that there was in him a touch of mysticism; and the two marked qualities of his daughter, mary, were deep piety and strong intellectuality. she had, too, all the physical hardiness of her scottish ancestry, fortified by the active and useful labor which all virginia women of her class at that time performed. [illustration: mary randolph keith marshall (mrs. thomas marshall)] so thomas marshall and mary keith combined unusual qualities for the founding of a family. great strength of mind both had, and powerful wills; and through the veins of both poured the blood of daring. both were studious-minded, too, and husband and wife alike were seized of a passion for self-improvement as well as a determination to better their circumstances. it appears that thomas marshall was by nature religiously inclined;[ ] and this made all the greater harmony between himself and his wife. the physical basis of both husband and wife seems to have been well-nigh perfect. fifteen children were the result of this union, every one of whom lived to maturity and almost all of whom rounded out a ripe old age. every one of them led an honorable and successful life. nearly all strongly impressed themselves upon the community in which they lived. it was a peculiar society of which this prolific and virile family formed a part, and its surroundings were as strange as the society itself. nearly all of virginia at that time was wilderness,[ ] if we look upon it with the eyes of to-day. the cultivated parts were given over almost entirely to the raising of tobacco, which soon drew from the soil its virgin strength; and the land thus exhausted usually was abandoned to the forest, which again soon covered it. no use was made of the commonest and most obvious fertilizing materials and methods; new spaces were simply cleared.[ ] thus came a happy-go-lucky improvidence of habits and character. this shiftlessness was encouraged by the vast extent of unused and unoccupied domain. land was so cheap that riches measured by that basis of all wealth had to be counted in terms of thousands and tens of thousands of acres.[ ] slavery was an even more powerful force making for a kind of lofty disdain of physical toil among the white people.[ ] black slaves were almost as numerous as white free men.[ ] on the great plantations the negro quarters assumed the proportions of villages;[ ] and the masters of these extensive holdings were by example the arbiters of habits and manners to the whole social and industrial life of the colony. while an occasional great planter was methodical and industrious,[ ] careful and systematic methods were rare. manual labor was, to most of these lords of circumstance, not only unnecessary but degrading. to do no physical work that could be avoided on the one hand, and on the other hand, to own as many slaves as possible, was, generally, the ideal of members of the first estate.[ ] this spread to the classes below, until it became a common ambition of white men throughout the old dominion. while contemporary travelers are unanimous upon this peculiar aspect of social and economic conditions in old virginia, the vivid picture drawn by thomas jefferson is still more convincing. "the whole commerce between master and slave," writes jefferson, "is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. our children see this and learn to imitate it.... thus nursed, educated, and daily exercised in tyranny ... the man must be a prodigy who can retain his manners and morals undepraved.... with the morals of the people their industry also is destroyed. for in a warm climate, no man will labour for himself who can make another labour for him.... of the proprietors of slaves a very small proportion indeed are ever seen to labour."[ ] two years after he wrote his "notes on virginia" jefferson emphasized his estimate of virginia society. "i have thought them [virginians] as you found them," he writes chastellux, "aristocratical, pompous, clannish, indolent, hospitable ... careless of their interests, ... thoughtless in their expenses and in all their transactions of business." he again ascribes many of these characteristics to "that warmth of their climate which unnerves and unmans both body and mind."[ ] from this soil sprang a growth of habits as noxious as it was luxuriant. amusements to break the monotony of unemployed daily existence took the form of horse-racing, cock-fighting, and gambling.[ ] drinking and all attendant dissipations were universal and extreme;[ ] this, however, was the case in all the colonies.[ ] bishop meade tells us that even the clergy indulged in the prevailing customs to the neglect of their sacred calling; and the church itself was all but abandoned in the disrepute which the conduct of its ministers brought upon the house of god.[ ] yet the higher classes of colonial virginians were keen for the education of their children, or at least of their male offspring.[ ] the sons of the wealthiest planters often were sent to england or scotland to be educated, and these, not infrequently, became graduates of oxford, cambridge, and edinburgh.[ ] others of this class were instructed by private tutors.[ ] also a sort of scanty and fugitive public instruction was given in rude cabins, generally located in abandoned fields. these were called the old field schools.[ ] more than forty per cent of the men who made deeds or served on juries could not sign their names, although they were of the land-owning and better educated classes;[ ] the literacy of the masses, especially that of the women,[ ] was, of course, much lower. an eager desire, among the "quality," for reading brought a considerable number of books to the homes of those who could afford that luxury.[ ] a few libraries were of respectable size and two or three were very large. robert carter had over fifteen hundred volumes,[ ] many of which were in latin and greek, and some in french.[ ] william byrd collected at westover more than four thousand books in half a dozen languages.[ ] but the carter and byrd libraries were, of course, exceptions. byrd's library was the greatest, not only in virginia, but in all the colonies, except that of john adams, which was equally extensive and varied.[ ] doubtless the leisure and wealth of the gentry, created by the peculiar economic conditions of the old dominion, sharpened this appetite for literature and afforded to the wealthy time and material for the gratification of it. the passion for reading and discussion persisted, and became as notable a characteristic of virginians as was their dislike for physical labor, their excessive drinking, and their love of strenuous sport and rough diversion. there were three social orders or strata, all contemporary observers agree, into which virginians were divided; but they merged into one another so that the exact dividing line was not clear.[ ] first, of course, came the aristocracy of the immense plantations. while the social and political dominance of this class was based on wealth, yet some of its members were derived from the english gentry, with, perhaps, an occasional one from a noble family in the mother country.[ ] many, however, were english merchants or their sons.[ ] it appears, also, that the boldest and thriftiest of the early virginia settlers, whom the british government exiled for political offenses, acquired extensive possessions, became large slave-owners, and men of importance and position. so did some who were indentured servants;[ ] and, indeed, an occasional transported convict rose to prominence.[ ] but the genuine though small aristocratic element gave tone and color to colonial virginia society. all, except the "poor whites," looked to this supreme group for ideals and for standards of manners and conduct. "people of fortune ... are the pattern of all behaviour here," testifies fithian of new jersey, tutor in the carter household.[ ] also, it was, of course, the natural ambition of wealthy planters and those who expected to become such to imitate the life of the english higher classes. this was much truer in virginia than in any other colony; for she had been more faithful to the crown and to the royal ideal than had her sisters. thus it was that the old dominion developed a distinctively aristocratic and chivalrous social atmosphere peculiar to herself,[ ] as jefferson testifies. next to the dominant class came the lesser planters. these corresponded to the yeomanry of the mother country; and most of them were from the english trading classes.[ ] they owned little holdings of land from a few hundred to a thousand and even two thousand acres; and each of these inconsiderable landlords acquired a few slaves in proportion to his limited estate. it is possible that a scanty number of this middle class were as well born as the best born of the little nucleus of the genuine aristocracy; these were the younger sons of great english houses to whom the law of primogeniture denied equal opportunity in life with the elder brother. so it came to pass that the upper reaches of the second estate in the social and industrial virginia of that time merged into the highest class. at the bottom of the scale, of course, came the poverty-stricken whites. in eastern virginia this was the class known as the "poor whites"; and it was more distinct than either of the two classes above it. these "poor whites" lived in squalor, and without the aspirations or virtues of the superior orders. they carried to the extreme the examples of idleness given them by those in higher station, and coarsened their vices to the point of brutality.[ ] near this social stratum, though not a part of it, were classed the upland settlers, who were poor people, but highly self-respecting and of sturdy stock. into this structure of virginia society fate began to weave a new and alien thread about the time that thomas marshall took his young bride to the log cabin in the woods of prince william county where their first child was born. in the back country bordering the mountains appeared the scattered huts of the pioneers. the strong character of this element of virginia's population is well known, and its coming profoundly influenced for generations the political, social, industrial, and military history of that section. they were jealous of their "rights," impatient of restraint, wherever they felt it, and this was seldom. indeed, the solitariness of their lives, and the utter self-dependence which this forced upon them, made them none too tolerant of law in any form. these outpost settlers furnished most of that class so well known to our history by the term "backwoodsmen," and yet so little understood. for the heroism, the sacrifice, and the suffering of this "advance guard of civilization" have been pictured by laudatory writers to the exclusion of its other and less admirable qualities. yet it was these latter characteristics that played so important a part in that critical period of our history between the surrender of the british at yorktown and the adoption of the constitution, and in that still more fateful time when the success of the great experiment of making out of an inchoate democracy a strong, orderly, independent, and self-respecting nation was in the balance. these american backwoodsmen, as described by contemporary writers who studied them personally, pushed beyond the inhabited districts to get land and make homes more easily. this was their underlying purpose; but a fierce individualism, impatient even of those light and vague social restraints which the existence of near-by neighbors creates, was a sharper spur.[ ] through both of these motives, too, ran the spirit of mingled lawlessness and adventure. the physical surroundings of the backwoodsman nourished the non-social elements of his character. the log cabin built, the surrounding patch of clearing made, the seed planted for a crop of cereals only large enough to supply the household needs--these almost ended the backwoodsman's agricultural activities and the habits of regular industry which farming requires. while his meager crops were coming on, the backwoodsman must supply his family with food from the stream and forest. the indians had not yet retreated so far, nor were their atrocities so remote, that fear of them had ceased;[ ] and the eye of the backwoodsman was ever keen for a savage human foe as well as for wild animals. thus he became a man of the rifle,[ ] a creature of the forests, a dweller amid great silences, self-reliant, suspicious, non-social, and almost as savage as his surroundings.[ ] but among them sometimes appeared families which sternly held to high purposes, orderly habits, and methodical industry;[ ] and which clung to moral and religious ideals and practices with greater tenacity than ever, because of the very difficulties of their situation. these chosen families naturally became the backbone of the frontier; and from them came the strong men of the advanced settlements. such a figure among the backwoodsmen was thomas marshall. himself a product of the settlements on the tidewater, he yet was the personification of that spirit of american advance and enterprise which led this son of the potomac lowlands ever and ever westward until he ended his days in the heart of kentucky hundreds of miles through the savage wilderness from the spot where, as a young man, he built his first cabin home. this, then, was the strange mingling of human elements that made up virginia society during the middle decades of the eighteenth century--a society peculiar to the old dominion and unlike that of any other place or time. for the most part, it was idle and dissipated, yet also hospitable and spirited, and, among the upper classes, keenly intelligent and generously educated. when we read of the heavy drinking of whiskey, brandy, rum, and heady wine; of the general indolence, broken chiefly by fox-hunting and horse-racing, among the quality; of the coarser sport of cock-fighting shared in common by landed gentry and those of baser condition, and of the eagerness for physical encounter which seems to have pervaded the whole white population,[ ] we wonder at the greatness of mind and soul which grew from such a social soil. yet out of it sprang a group of men who for ability, character, spirit, and purpose, are not outshone and have no precise counterpart in any other company of illustrious characters appearing in like space of time and similar extent of territory. at almost the same point of time, historically speaking,--within thirty years, to be exact,--and on the same spot, geographically speaking,--within a radius of a hundred miles,--george mason, james madison, patrick henry, thomas jefferson, john marshall, and george washington were born. the life stories of these men largely make up the history of their country while they lived; and it was chiefly their words and works, their thought and purposes, that gave form and direction, on american soil, to those political and social forces which are still working out the destiny of the american people. footnotes: [ ] for instance, the indians massacred nine families in frederick county, just over the blue ridge from fauquier, in june, . (_pennsylvania journal and weekly advertiser_, july , .) [ ] marshall, i, - ; campbell, - . "the colonial contingents were not nearly sufficient either in quantity or quality." (wood, .) [ ] braddock had won promotion solely by gallantry in the famous coldstream guards, the model and pride of the british army, at a time when a lieutenant-colonelcy in that crack regiment sold for £ sterling. (lowdermilk, .) [ ] "the british troops had been looked upon as invincible, and preparations had been made in philadelphia for the celebration of braddock's anticipated victory." (_ib._, .) [ ] washington to robinson, april , ; _writings_: ford, i, . [ ] the "wild desert country lying between fort cumberland and fort frederick [now the cities of cumberland and frederick in maryland], the most common track of the indians, in making their incursions into virginia." (address in the maryland house of delegates, , as quoted by lowdermilk, - .) cumberland was "about miles beyond our [maryland] settlements." (_ib._) cumberland "is far remote from any of our inhabitants." (washington to dinwiddie, sept. , ; _writings_: ford, i, .) "will's creek was on the very outskirts of civilization. the country beyond was an unbroken and almost pathless wilderness." (lowdermilk, .) [ ] it took braddock three weeks to march from alexandria to cumberland. he was two months and nineteen days on the way from alexandria to the place of his defeat. (_ib._, .) [ ] "all america watched his [braddock's] advance." (wood, .) [ ] for best accounts of braddock's defeat see bradley, - ; lowdermilk, - ; and marshall, i, - . [ ] "of one hundred and sixty officers, only six escaped." (lowdermilk, footnote to .) [ ] braddock had five horses killed under him. (_ib._, .) [ ] "the dastardly behavior of the regular [british] troops," who "broke and ran as sheep before hounds." (washington to dinwiddie, july , ; _writings_: ford, i, - .) [ ] washington to john a. washington, july , . (_ib._, .) [ ] "the virginia companies behaved like men and died like soldiers ... of three companies ... scarce thirty were left alive." (washington to dinwiddie, july , ; _writings_: ford, i, - .) [ ] lowdermilk, - ; and see washington's _writings_: ford, i, footnote to . for account of battle and rout see washington's letters to dinwiddie, _ib._, - ; to john a. washington, july , , _ib._; to robert jackson, aug. , , _ib._, - ; also see campbell, - . for french account see hart, ii, - ; also, sargent: _history of braddock's expedition_. [ ] washington to john a. washington, july , ; _writings_: ford, i, . [ ] "the defeat of braddock was totally unlooked for, and it excited the most painful surprise." (lowdermilk, .) [ ] "after braddock's defeat, the colonists jumped to the conclusion that all regulars were useless." (wood, .) [ ] see stanard: _story of bacon's rebellion_. bacon's rebellion deserves the careful study of all who would understand the beginnings of the democratic movement in america. mrs. stanard's study is the best brief account of this popular uprising. see also wertenbaker: _v. u. s._, chaps. and . [ ] "the news [of braddock's defeat] gave a far more terrible blow to the reputation of the regulars than to the british cause [against the french] itself." (wood, .) [ ] "from that time [braddock's defeat] forward the colonists had a much less exalted opinion of the valor of the royal troops." (lowdermilk, .) the fact that the colonists themselves had been negligent and incompetent in resisting the french or even the indians did not weaken their newborn faith in their own prowess and their distrust of british power. [ ] _autobiography._ [ ] campbell, . "it is remarkable," says campbell, "that as late as the year , when the colony was a century and a half old, the blue ridge of mountains was virtually the western boundary of virginia." and see marshall, i, ; also, _new york review_ ( ), iii, . for frontier settlements, see the admirable map prepared by marion f. lansing and reproduced in channing, ii. [ ] humphrey marshall, i, - . also binney, in dillon, iii, . [ ] see _infra_, chap. ii. [ ] humphrey marshall, i, - . [ ] he was one of a company of militia cavalry the following year, (journal, h.b. ( ), ); and he was commissioned as ensign aug. , . (crozier: _virginia colonial militia_, .) and see _infra_, chaps, iii and iv. [ ] paxton, . [ ] a copy of a letter (ms.) to thomas marshall from his sister elizabeth marshall martin, dated june , , referring to the braddock expedition, shows that he was at home at this time. furthermore, a man of the quality of thomas marshall would not have left his young wife alone in their backwoods cabin at a time so near the birth of their first child, when there was an overabundance of men eager to accompany braddock. [ ] washington mss., lib. cong. [ ] simon kenton, the indian fighter, was born in the same county in the same year as john marshall. (m'clung: _sketches of western adventure_, .) [ ] neither the siege of louisburg nor the capture of quebec took such hold on the public imagination as the british disaster on the monongahela. also, the colonists felt, though unjustly, that they were entitled to as much credit for the two former events as the british. [ ] the idea of unity had already germinated. the year before, franklin offered his plan of concerted colonial action to the albany conference. (_writings_: smyth, i, .) [ ] wood, - . [ ] for these genealogies see slaughter: _bristol parish_, ; lee: _lee of virginia_, _et seq._; randall, i, - ; tucker, i, . see meade, i, footnote to - , for other descendants of william randolph and mary isham. [ ] _va. mag. hist. and biog._, iii, ; xviii, - . [ ] the curious sameness in the ancestry of marshall and jefferson is found also in the surroundings of their birth. both were born in log cabins in the backwoods. peter jefferson, father of thomas, "was the third or fourth white settler within the space of several miles" of his cabin home, which he built "in a small clearing in the dense and primeval forest." (randall, i, .) here jefferson was born, april , , a little more than twelve years before john marshall came into the world, under like conditions and from similar parents. peter jefferson was, however, remotely connected by descent, on his mother's side, with men who had been burgesses. his maternal grandfather, peter field, was a burgess, and his maternal great-grandfather, henry soane, was speaker of the house of burgesses. but both peter jefferson and thomas marshall were "of the people" as distinguished from the gentry. [ ] morse, ; and story, in dillon, iii, . [ ] randall, i, . peter jefferson "purchased" four hundred acres of land from his "bosom friend," william randolph, the consideration as set forth in the deed being, "henry weatherbourne's biggest bowl of arrack punch"! (_ib._) [ ] peter jefferson was county lieutenant of albemarle. (_va. mag, hist. and biog._, xxiii, - .) thomas marshall was sheriff of fauquier. [ ] randall, i, - ; and see _infra_, chap. ii. [ ] tucker, i, . [ ] records of westmoreland county, deeds and wills, viii, i, . [ ] _ib._ seventy years later la rochefoucauld found land adjoining norfolk heavily covered with valuable timber, close to the water and convenient for shipment, worth only from six to seven dollars an acre. (la rochefoucauld, iii, .) virginia sold excellent public land for two cents an acre three quarters of a century after this deed to john marshall "of the forest." (ambler, ; and see turner, wis. hist. soc, , .) this same land which william marshall deeded to john marshall nearly two hundred years ago is now valued at only from ten to twenty dollars an acre. (letter of albert stuart, deputy clerk of westmoreland county, to author, aug. , .) in it was probably worth one dollar per acre. [ ] a term generally used by the richer people in referring to those of poorer condition who lived in the woods, especially those whose abodes were some distance from the river. (statement of w. g. stanard, secretary of the virginia historical society and dr. h. j. eckenrode of richmond college, and formerly archivist of the virginia state library.) there were, however, virginia estates called "the forest." for example, jefferson's father-in-law, john wayles, a wealthy man, lived in "the forest." [ ] will of john marshall "of the forest," made april , , probated may , , and recorded june , ; records of westmoreland county, deeds and wills, xi, _et seq._ (appendix ii.) [ ] _ib._, . [ ] _autobiography_. marshall gives the ancestry of his wife more fully and specifically. see _infra_, chap. v. [ ] will of thomas marshall, "carpenter," probated may , ; records of westmoreland county, deeds and wills, iii, _et seq._ (appendix i.) [ ] most curiously, precisely this is true of thomas jefferson's paternal ancestry. [ ] there is a family tradition that the first of this particular marshall family in america was a royalist irish captain who fought under charles i and came to america when cromwell prevailed. this may or may not be true. certainly no proof of it has been discovered. the late wilson miles cary, whose authority is unquestioned in genealogical problems upon which he passed judgment, decided that "the marshall family begins absolutely with thomas marshall, 'carpenter.'" (the cary papers, mss., va. hist. soc. the _virginia magazine of history and biography_ is soon to publish these valuable genealogical papers.) within comparatively recent years, this family tradition has been ambitiously elaborated. it includes among john marshall's ancestors william le mareschal, who came to england with the conqueror; the celebrated richard de clare, known as "strongbow"; an irish king, dermont; sir william marshall, regent of the kingdom of england and restorer of magna charta; a captain john marshall, who distinguished himself at the siege of calais in ; and finally, the irish captain who fought cromwell and fled to virginia as above mentioned. (paxton, _et seq._) senator humphrey marshall rejected this story as "a myth supported by vanity." (_ib._) colonel cary declares that "there is no evidence whatever in support of it." (cary papers, mss.) other painstaking genealogists have reached the same conclusion. (see, for instance, general thomas m. anderson's analysis of the subject in _va. mag. hist. and biog._, xii, _et seq._) marshall himself, of course, does not notice this legend in his _autobiography_; indeed, it is almost certain that he never heard of it. in constructing this picturesque genealogical theory, the kinship of persons separated by centuries is assumed largely because of a similarity of names. this would not seem to be entirely convincing. there were many marshalls in virginia no more related to one another than the various unrelated families by the name of smith. indeed, _maréchal_ is the french word for a "shoeing smith." for example, there lived in westmoreland county, at the same time with john marshall "of the forest," another john marshall, who died intestate and the inventory of whose effects was recorded march , , a year before john marshall "of the forest" died. these two john marshalls do not seem to have been kinsmen. the only prominent person in virginia named marshall in - was a certain thomas marshall who was a member of the colony's house of burgesses during this period; but he was from northampton county. (journal, h.b. ( - ), xi; _ib._ ( - ), viii, and .) he does not appear to have been related in any way to john "of the forest." there were numerous marshalls who were officers in the revolutionary war from widely separated colonies, apparently unconnected by blood or marriage. for instance, there were abraham, david, and benjamin marshall from pennsylvania; christopher marshall from massachusetts; dixon marshall from north carolina; elihu marshall from new york, etc. (heitman, .) at the same time that john marshall, the subject of this work, was captain in a virginia regiment, two other john marshalls were captains in pennsylvania regiments. when thomas marshall of virginia was an officer in washington's army, there were four other thomas marshalls, two from massachusetts, one from south carolina, and one from virginia, all revolutionary officers. (_ib._) when stony point was taken by wayne, among the british prisoners captured was lieutenant john marshall of the th regiment of british foot (see dawson, ); and captain john marshall of virginia was one of the attacking force. (see _infra_, chap. iv.) in , john marshall of king and queen county, a boatswain, was a virginia pensioner. (_va. hist. prs._, v, .) he was not related to john marshall, who had become the leading richmond lawyer of that time. while hamilton was secretary of the treasury he received several letters from john marshall, an englishman, who was in this country and who wrote hamilton concerning the subject of establishing manufactories. (hamilton mss., lib. cong.) illustrations like these might be continued for many pages. they merely show the danger of inferring relationship because of the similarity of names, especially one so general as that of marshall. [ ] the cary papers, _supra_. here again the marshall legend riots fantastically. this time it makes the pirate blackbeard the first husband of marshall's paternal grandmother; and with this freebooter she is said to have had thrilling and melancholy experiences. it deserves mention only as showing the absurdity of such myths. blackbeard was one edward teach, whose career is well authenticated (wise, .) colonel cary put a final quietus on this particular tale, as he did on so many other genealogical fictions. [ ] see douglas: _peerage of scotland_ ( ), . also burke: _peerage_ ( ), ; and _ib._ ( ). this peerage is now extinct. see burke: _extinct peerages_. [ ] for appreciation of this extraordinary man see carlyle's _frederick the great_. [ ] paxton, . [ ] from data furnished by justice james keith, president of the court of appeals of virginia. [ ] paxton, ; and see meade, ii, . [ ] data furnished by thomas marshall smith of baltimore, md. [ ] with this lady the tradition deals most unkindly and in highly colored pictures. an elopement, the deadly revenge of outraged brothers, a broken heart and resulting insanity overcome by gentle treatment, only to be reinduced in old age by a fraudulent enoch arden letter apparently written by the lost love of her youth--such are some of the incidents with which this story clothes marshall's maternal grandmother. (paxton, - .) [ ] _autobiography._ [ ] in general, virginia women at this time had very little education (burnaby, .) sometimes the daughters of prominent and wealthy families could not read or write. (bruce: _inst._, i, - .) even forty years after john marshall was born, there was but one girls' school in virginia. (la rochefoucauld, iii, .) in , there were very few schools of any kind in virginia, it appears. (journal, h.b. (dec. , ), ; and see _infra_, chap. vi.) [ ] paxton, . marischal college, aberdeen, was founded by george keith, fifth earl marischal ( ). [ ] see _infra_, chap. ii. when leeds parish was organized, we find thomas marshall its leading vestryman. he was always a stanch churchman. [ ] jones, ; burnaby, . but see maxwell in _william and mary college quarterly_, xix, - ; and see bruce: _econ._, i, , , , . [ ] "though tobacco exhausts the land to a prodigious degree, the proprietors take no pains to restore its vigor; they take what the soil will give and abandon it when it gives no longer. they like better to clear new lands than to regenerate the old." (de warville, ; and see fithian, .) the land produced only "four or five bushels of wheat per acre or from eight to ten of indian corn. these fields are never manured, hardly even are they ploughed; and it seldom happens that their owners for two successive years exact from them these scanty crops.... the country ... everywhere exhibits the features of laziness, of ignorance, and consequently of poverty." (la rochefoucauld, iii, - , describing land between richmond and petersburg, in ; and see schoepf, ii, , ; and weld, i, , .) [ ] burnaby, , . the estate of richard randolph of curels, in embraced "not less than forty thousand acres of the choicest lands." (garland, i, .) the mother of george mason bought ten thousand acres in loudoun county for an insignificant sum. (rowland, i, .) the carter plantation in comprised sixty thousand acres and carter owned six hundred negroes. (fithian, .) compare with the two hundred acres and few slaves of john marshall "of the forest," _supra_. half a century later the very best lands in virginia with valuable mines upon them sold for only eighteen dollars an acre. (la rochefoucauld, iii, .) for careful account of the extent of great holdings in the seventeenth century see wertenbaker: _p. and p._, - , - . jefferson in owned two hundred slaves and ten thousand acres of very rich land on the james river. (jefferson to van staphorst, feb. , ; _works_: ford, vi, .) washington owned enormous quantities of land, and large numbers of slaves. his virginia holdings alone amounted to thirty-five thousand acres. (beard: _econ. i. c._, .) [ ] burnaby, . [ ] in the older counties the slaves outnumbered the whites; for instance, in westmoreland county had whites, blacks, and designated as "all others." in in the same county slave-owners possessed slaves and horses. (_va. mag. hist. and biog._, x, - .) [ ] ambler, . the slaves of some planters were valued at more than thirty thousand pounds sterling. (fithian, ; and schoepf, ii, ; also, weld, i, .) [ ] robert carter was a fine example of this rare type. (see fithian, - .) [ ] burnaby, - and . "the virginians ... are an indolent haughty people whose thoughts and designs are directed solely towards p[l]aying the lord, owning great tracts of land and numerous troops of slaves. any man whatever, if he can afford so much as - [two or three] negroes, becomes ashamed of work, and goes about in idleness, supported by his slaves." (schoepf, ii, .) [ ] "notes on virginia"; _works_: ford, iv, - . see la rochefoucauld, iii, p. , on jefferson's slaves. [ ] jefferson to chastellux, sept. , ; _thomas jefferson correspondence_, bixby collection: ford, ; and see jefferson's comparison of the sections of the country, _ib._ and _infra_, chap. vi. [ ] "many of the wealthier class were to be seen seeking relief from the vacuity of idleness, not merely in the allowable pleasures of the chase and the turf, but in the debasing ones of cock-fighting, gaming, and drinking." (tucker, i, ; and see la rochefoucauld, iii, ; weld, i, ; also _infra_, chap. vii, and references there given.) [ ] jones, , , and ; chastellux, - ; also, translator's note to _ib._, - . the following order from the records of the court of rappahannock county, jan. , (_sic_), p. , is illustrative:-- "it having pleased almighty god to bless his royall mahst. with the birth of a son & his subjects with a prince of wales, and for as much as his excellency hath sett apart the th. day of this inst. janr'y. for solemnizing the same. to the end therefore that it may be don with all the expressions of joy this county is capable of, this court have ordered that capt. geo. taylor do provide & bring to the north side courthouse for this county as much rum or other strong liquor with sugar proportionable as shall amount to six thousand five hundred pounds of tobb. to be distributed amongst the troops of horse, compa. of foot and other persons that shall be present at the sd. solemnitie. and that the said sum be allowed him at the next laying of the levey. as also that capt. samll. blomfield provide & bring to the south side courthouse for this county as much rum or other strong liquor wth. sugar proportionable as shall amount to three thousand five hundred pounds of tobb. to be distributed as above att the south side courthouse, and the sd. sum to be allowed him at the next laying of the levey." and see bruce: _econ._, ii, - ; also wise, , - . although bruce and wise deal with a much earlier period, drinking seems to have increased in the interval. (see fithian, - , .) [ ] as in massachusetts, for instance. "in most country towns ... you will find almost every other house with a sign of entertainment before it.... if you sit the evening, you will find the house full of people, drinking drams, flip, toddy, carousing, swearing." (john adams's _diary_, describing a new england county, in ; _works_: adams, ii, - . the records of essex county, massachusetts, now in process of publication by the essex institute, contain many cases that confirm the observation of adams.) [ ] meade, i, - ; and see schoepf, ii, - . [ ] wise, - ; bruce: _inst._, i, - . [ ] bruce: _inst._, i, - ; and see especially, _va. mag. hist. and biog._, ii, _et seq._ [ ] _ib._, - ; also fithian, _et seq._ [ ] bruce: _inst._, i, - . [ ] _ib._, - . [ ] _ib._, - . bruce shows that two thirds of the women who joined in deeds could not write. this, however, was in the richer section of the colony at a much earlier period. just before the revolution virginia girls, even in wealthy families, "were simply taught to read and write at / [shillings] and a load of wood per year--a boarding school was no where in virginia to be found." (mrs. carrington to her sister nancy; ms.) part of this letter appears in the _atlantic monthly_ series cited hereafter (see chap. v); but the teacher's pay is incorrectly printed as "pounds" instead of "shillings." (_atlantic monthly_, lxxxiv, - .) [ ] bruce: _inst._, i, - ; and see wise, - . professor tucker says that "literature was neglected, or cultivated, by the small number who had been educated in england, rather as an accomplishment and a mark of distinction than for the substantial benefits it confers." (tucker, i, .) [ ] fithian, . [ ] see catalogue in _w. and m. c. q._, x and xi. [ ] see catalogue in appendix a to byrd's _writings_: bassett. [ ] see catalogue of john adams's library, in the boston public library. [ ] ambler, ; and see wise, - . [ ] trustworthy data on this subject is given in the volumes of the _va. mag. hist. and biog._; see also _w. and m. c. q._ [ ] wertenbaker: _p. and p._, - . but see william g. stanard's exhaustive review of mr. wertenbaker's book in _va. mag. hist. and biog._, xviii, - . [ ] "one hundred young maids for wives, as the former ninety sent. one hundred boys more for apprentices likewise to the public tenants. one hundred servants to be disposed among the old planters which they exclusively desire and will pay the company their charges." (_virginia company records_, i, ; and see fithian, .) [ ] for the understanding in england at that period of the origin of this class of virginia colonists see defoe: _moll flanders_, _et seq._ on transported convicts see _amer. hist. rev._, ii. _et seq._ for summary of the matter see channing, i, - , - . [ ] fithian to greene, dec. , ; fithian, . [ ] fithian to peck, aug. , ; fithian, - ; and see professor tucker's searching analysis in tucker, i, - ; also see lee, in ford: _p. on c._, - . as to a genuinely aristocratic _group_, the new york patroons were, perhaps, the most distinct in the country. [ ] wertenbaker: _p. and p._, - ; also _va. mag. hist. and biog._, xviii, - . [ ] for accounts of brutal physical combats, see anburey, ii, _et seq._ and for dueling, though at an earlier period, see wise, - . the practice of dueling rapidly declined; but fighting of a violent and often repulsive character persisted, as we shall see, far into the nineteenth century. also, see la rochefoucauld, chastellux, and other travelers, _infra_, chap. vii. [ ] schoepf, i, ; and see references, _infra_, chap. vii. [ ] after braddock's defeat the indians "extended their raids ... pillaging and murdering in the most ruthless manner.... the whole country from new york to the heart of virginia became the theatre of inhuman barbarities and heartless destruction." (lowdermilk, .) [ ] although the rifle did not come into general use until the revolution, the firearms of this period have been so universally referred to as "rifles" that i have, for convenience, adopted this inaccurate term in the first two chapters. [ ] "their actions are regulated by the wildness of the neighbourhood. the deer often come to eat their grain, the wolves to destroy their sheep, the bears to kill their hogs, the foxes to catch their poultry. this surrounding hostility immediately puts the gun into their hands,... and thus by defending their property, they soon become professed hunters; ... once hunters, farewell to the plough. the chase renders them ferocious, gloomy, and unsociable; a hunter wants no neighbour, he rather hates them.... the manners of the indian natives are respectable, compared with this european medley. their wives and children live in sloth and inactivity.... you cannot imagine what an effect on manners the great distance they live from each other has.... eating of wild meat ... tends to alter their temper.... i have seen it." (crèvecoeur, - .) crèvecoeur was himself a frontier farmer. (_writings_: sparks, ix, footnote to .) [ ] "many families carry with them all their decency of conduct, purity of morals, and respect of religion; but these are scarce." (crèvecoeur, .) crèvecoeur says his family was one of these. [ ] this bellicose trait persisted for many years and is noted by all contemporary observers. chapter ii a frontier education "come to me," quoth the pine tree, "i am the giver of honor." (emerson.) i do not think the greatest things have been done for the world by its bookmen. education is not the chips of arithmetic and grammar. (wendell phillips.) john marshall was never out of the simple, crude environment of the near frontier for longer than one brief space of a few months until his twentieth year, when, as lieutenant of the famous culpeper minute men, he marched away to battle. the life he had led during this period strengthened that powerful physical equipment which no strain of his later years seemed to impair; and helped to establish that extraordinary nervous equilibrium which no excitement or contest ever was able to unbalance.[ ] this foundation part of his life was even more influential on the forming mind and spiritual outlook of the growing youth. thomas marshall left the little farm of poor land in westmoreland county not long after the death of his father, john marshall "of the forest." this ancestral "estate" had no attractions for the enterprising young man. indeed, there is reason for thinking that he abandoned it.[ ] he lifted his first rooftree in what then were still the wilds of prince william county.[ ] there we find him with his young wife, and there in the red year of british disaster his eldest son was born. the cabin has long since disappeared, and only a rude monument of native stone, erected by college students in recent years, now marks the supposed site of this historic birthplace. the spot is a placid, slumberous countryside. a small stream runs hard by. in the near distance still stands one of the original cabins of spotswood's germans.[ ] but the soil is not generous. when thomas marshall settled there the little watercourse at the foot of the gentle slope on which his cabin stood doubtless ran bank-full; for in the forests remained thick and unviolated about his cabin,[ ] and fed the waters from the heavy rains in restrained and steady flow to creek and river channels. amidst these surroundings four children of thomas marshall and mary keith were born.[ ] the sturdy young pioneer was not content to remain permanently at germantown. a few years later found him building another home about thirty miles farther westward, in a valley in the blue ridge mountains.[ ] here the elder son spent the critical space of life from childhood to his eighteenth year. this little building still stands, occupied by negroes employed on the estate of which it forms a part. the view from it even now is attractive; and in the days of john marshall's youth must have been very beautiful. the house is placed on a slight rise of ground on the eastern edge of the valley. near by, to the south and closer still to the west, two rapid mountain streams sing their quieting, restful song. on all sides the blue ridge lifts the modest heights of its purple hills. this valley at that time was called "the hollow," and justly so; for it is but a cup in the lazy and unambitious mountains. when the eldest son first saw this frontier home, great trees thickly covered mountain, hill, and glade, and surrounded the meadow, which the marshall dwelling overlooked, with a wall of inviting green.[ ] two days by the very lowest reckoning it must have taken thomas marshall to remove his family to this new abode. it is more likely that three or four days were consumed in the toilsome task. the very careful maps of the british survey at that time show only three roads in all immense prince william county.[ ] on one of these the marshalls might have made their way northward, and on another, which it probably joined, they could have traveled westward. but these trails were primitive and extremely difficult for any kind of vehicle.[ ] some time before , then, rational imagination can picture a strong, rude wagon drawn by two horses crawling along the stumpy, rock-roughened, and mud-mired road through the dense woods that led in the direction of "the hollow." in the wagon sat a young woman.[ ] by her side a sturdy, red-cheeked boy looked out with alert but quiet interest showing from his brilliant black eyes; and three other children cried their delight or vexation as the hours wore on. in this wagon, too, were piled the little family's household goods; nor did this make a heavy load, for all the lares and penates of a frontier settler's family in would not fill a single room of a moderately furnished household in the present day. [illustration: _"the hollow," markham, virginia_ _john marshall's boyhood home._] by the side of the wagon strode a young man dressed in the costume of the frontier. tall, broad-shouldered, lithe-hipped, erect, he was a very oak of a man. his splendid head was carried with a peculiar dignity; and the grave but kindly command that shone from his face, together with the brooding thoughtfulness and fearless light of his striking eyes, would have singled him out in any assemblage as a man to be respected and trusted. a negro drove the team, and a negro girl walked behind.[ ] so went the marshalls to their blue ridge home. it was a commodious one for those days. two rooms downstairs, one fifteen feet by sixteen, the other twelve by fourteen, and above two half-story lofts of the same dimensions, constituted this domestic castle. at one end of the larger downstairs room is a broad and deep stone fireplace, and from this rises a big chimney of the same material, supporting the house on the outside.[ ] thomas and mary marshall's pride and aspiration, as well as their social importance among the settlers, are strongly shown by this frontier dwelling. unlike those of most of the other backwoodsmen, it was not a log cabin, but a frame house built of whip-sawed uprights and boards.[ ] it was perhaps easier to construct a one and a half story house with such materials; for to lift heavy timbers to such a height required great effort.[ ] but thomas marshall's social, religious, and political status[ ] in the newly organized county of fauquier were the leading influences that induced him to build a house which, for the time and place, was so pretentious. a small stone "meat house," a one-room log cabin for his two negroes, and a log stable, completed the establishment. in such an abode, and amidst such surroundings, the fast-growing family[ ] of thomas marshall lived for more than twelve years. at first neighbors were few and distant. the nearest settlements were at warrenton, some twenty-three miles to the eastward, and winchester, a little farther over the mountains to the west.[ ] but, with the horror of braddock's defeat subdued by the widespread and decisive counter victories, settlers began to come into the country on both sides of the blue ridge. these were comparatively small farmers, who, later on, became raisers of wheat, corn, and other cereals, rather than tobacco. not until john marshall had passed his early boyhood, however, did these settlers become sufficiently numerous to form even a scattered community, and his early years were enlivened with no child companionship except that of his younger brothers and sisters. for the most part his days were spent, rifle in hand, in the surrounding mountains, and by the pleasant waters that flowed through the valley of his forest home. he helped his mother, of course, with her many labors, did the innumerable chores which the day's work required, and looked after the younger children, as the eldest child always must do. to his brothers and sisters as well as to his parents, he was devoted with a tenderness peculiar to his uncommonly affectionate nature and they, in turn, "fairly idolized" him.[ ] there were few of those minor conveniences which we to-day consider the most indispensable of the simplest necessities. john marshall's mother, like most other women of that region and period, seldom had such things as pins; in place of them use was made of thorns plucked from the bushes in the woods.[ ] the fare, naturally, was simple and primitive. game from the forest and fish from the stream were the principal articles of diet. bear meat was plentiful.[ ] even at that early period, salt pork and salt fish probably formed a part of the family's food, though not to the extent to which such cured provisions were used by those of the back country in later years, when these articles became the staple of the border.[ ] corn meal was the basis of the family's bread supply. even this was not always at hand, and corn meal mush was welcomed with a shout by the clamorous brood with which the little cabin soon fairly swarmed. it could not have been possible for the marshall family in their house on goose creek to have the luxury of bread made from wheat flour. the clothing of the family was mostly homespun. "store goods," whether food, fabric, or utensil, could be got to thomas marshall's backwoods dwelling only with great difficulty and at prohibitive expense.[ ] but young john marshall did not know that he was missing anything. on the contrary, he was conscious of a certain wealth not found in cities or among the currents of motion. for ever his eye looked out upon noble yet quieting, poetic yet placid, surroundings. always he could have the inspiring views from the neighboring heights, the majestic stillness of the woods, the soothing music of meadow and stream. so uplifted was the boy by the glory of the mountains at daybreak that he always rose while the eastern sky was yet gray.[ ] he was thrilled by the splendor of sunset and never tired of watching it until night fell upon the vast and somber forests. for the boy was charged with poetic enthusiasm, it appears, and the reading of poetry became his chief delight in youth and continued to be his solace and comfort throughout his long life;[ ] indeed, marshall liked to make verses himself, and never outgrew the habit. there was in him a rich vein of romance; and, later on, this manifested itself by his passion for the great creations of fiction. throughout his days he would turn to the works of favorite novelists for relaxation and renewal.[ ] the mental and spiritual effects of his surroundings on the forming mind and unfolding soul of this young american must have been as lasting and profound as were the physical effects on his body.[ ] his environment and his normal, wholesome daily activities could not have failed to do its work in building the character of the growing boy. these and his sound, steady, and uncommonly strong parentage must, perforce, have helped to give him that courage for action, that balanced vision for judgment, and that serene outlook on life and its problems, which were so notable and distinguished in his mature and rugged manhood. lucky for john marshall and this country that he was not city born and bred; lucky that not even the small social activities of a country town drained away a single ohm of his nervous energy or obscured with lesser pictures the large panorama which accustomed his developing intelligence to look upon big and simple things in a big and simple way. there were then no public schools in that frontier[ ] region, and young marshall went untaught save for the instruction his parents gave him. for this task his father was unusually well equipped, though not by any formal schooling. all accounts agree that thomas marshall, while not a man of any learning, had contrived to acquire a useful though limited education, which went much further with a man of his well-ordered mind and determined will than a university training could go with a man of looser fiber and cast in smaller mould. the father was careful, painstaking, and persistent in imparting to his children and particularly to john all the education he himself could acquire. between thomas marshall and his eldest son a mutual sympathy, respect, and admiration existed, as uncommon as it was wholesome and beneficial. "my father," often said john marshall, "was a far abler man than any of his sons."[ ] in "his private and familiar conversations with me," says justice story, "when there was no other listener ... he never named his father ... without dwelling on his character with a fond and winning enthusiasm ... he broke out with a spontaneous eloquence ... upon his virtues and talents."[ ] justice story wrote a sketch of marshall for the "national portrait gallery," in which thomas marshall is highly praised. in acknowledging the receipt of the magazine, marshall wrote: "i am particularly gratified by the terms in which you speak of my father. if any contemporary, who knew him in the prime of manhood, survived, he would confirm all you say."[ ] so whether at home with his mother or on surveying trips with his father, the boy continually was under the influence and direction of hardy, clear-minded, unusual parents. their lofty and simple ideals, their rational thinking, their unbending uprightness, their religious convictions--these were the intellectual companions of john marshall's childhood and youth. while too much credit has not been given thomas marshall for the training of the eldest son, far too little has been bestowed on mary randolph keith, who was, in all things, the equal of her husband. although, as we have seen, many books were brought into eastern virginia by the rich planters, it was difficult for the dwellers on the frontier to secure any reading material. most books had to be imported, were very expensive, and, in the back country, there were no local sources of supply where they could be purchased. also, the frontier settlers had neither the leisure nor, it appears, the desire for reading[ ] that distinguished the wealthy landlords of the older parts of the colony.[ ] thomas marshall, however, was an exception to his class in his eagerness for the knowledge to be gathered from books and in his determination that his children should have those advantages which reading gives. so, while his small house in "the hollow" of the blue ridge probably contained not many more books than children, yet such volumes as were on that frontier bookshelf were absorbed and made the intellectual possession of the reader. the bible was there, of course; and probably shakespeare also.[ ] the only book which positively is known to have been a literary companion of john marshall was a volume of pope's poems. he told justice story that, by the time he was twelve years old ( ), he had copied every word of the "essay on man" and other of pope's moral essays, and had committed to memory "many of the most interesting passages."[ ] this would seem to prove that not many other attractive books were at the boyhood hands of so eager a reader of poetry and fiction as marshall always was. it was quite natural that this volume should be in that primitive household; for, at that time, pope was more widely read, admired, and quoted than any other writer either of poetry or prose.[ ] for those who believe that early impressions are important, and who wish to trace john marshall's mental development back to its sources, it is well to spend a moment on that curious work which pope named his "essay on man." the natural bent of the youth's mind was distinctively logical and orderly, and pope's metred syllogisms could not but have appealed to it powerfully. the soul of pope's "essay" is the wisdom of and necessity for order; and it is plain that the boy absorbed this vital message and made it his own. certain it is that even as a beardless young soldier, offering his life for his country's independence, he already had grasped the master truth that order is a necessary condition of liberty and justice. it seems probable, however, that other books were brought to this mountain fireside. there was a limited store within his reach from which thomas marshall could draw. with his employer and friend, george washington,[ ] he was often a visitor at the wilderness home of lord fairfax just over the blue ridge. washington availed himself of the fairfax library,[ ] and it seems reasonable that thomas marshall did the same. it is likely that he carried to his blue ridge dwelling an occasional fairfax volume carefully selected for its usefulness in developing his own as well as his children's minds. this contact with the self-expatriated nobleman had more important results, however, than access to his books. thomas marshall's life was profoundly influenced by his early and intimate companionship with the well-mannered though impetuous and headstrong young washington, who engaged him as assistant surveyor of the fairfax estate.[ ] from youth to manhood, both had close association with lord fairfax, who gave washington his first employment and secured for him the appointment by the colonial authorities as public surveyor.[ ] washington was related by marriage to the proprietor of the northern neck, his brother lawrence having married the daughter of william fairfax. when their father died, lawrence washington took the place of parent to his younger brother;[ ] and in his house the great landowner met george washington, of whom he became very fond. for more than three years the youthful surveyor passed most of his time in the blue ridge part of the british nobleman's vast holdings,[ ] and in frequent and intimate contact with his employer. thus thomas marshall, as washington's associate and helper, came under the guidance and example of lord fairfax. the romantic story of this strange man deserves to be told at length, but only a résumé is possible here. this summary, however, must be given for its bearing on the characters of george washington and thomas marshall, and, through them, its formative influence on john marshall.[ ] lord fairfax inherited his enormous virginia estate from his mother, the daughter of lord culpeper, the final grantee of that kingly domain. this profligate grant of a careless and dissolute monarch embraced some five million acres between the potomac and rappahannock rivers back to a straight line connecting the sources of these streams. while the young heir of the ancient fairfax title was in oxford, his father having died, his mother and grandmother, the dowager ladies fairfax and culpeper, forced him to cut off the entail of the extensive fairfax estates in england in order to save the heavily mortgaged culpeper estates in the same country; and as compensation for this sacrifice, the noble oxford student was promised the inheritance of this wild virginia forest principality. nor did the youthful baron's misfortunes end there. the lady of his heart had promised to become his bride, the wedding day was set, the preparations made. but before that hour of joy arrived, this fickle daughter of ambition received an offer to become a duchess instead of a mere baroness, and, throwing over young fairfax without delay, she embraced the more exalted station offered her. these repeated blows of adversity embittered the youthful head of the illustrious house of fairfax against mother and grandmother, and, for the time being, all but against england itself. so, after some years of management of his virginia estate by his cousin, william, who was in government employ in america, lord fairfax himself left england forever, came to virginia, took personal charge of his inherited holdings, and finally established himself at its very outskirts on the savage frontier. in the shenandoah valley, near winchester, he built a small house of native stone and called it greenway court,[ ] after the english fashion; but it never was anything more than a hunting lodge.[ ] from this establishment he personally managed his vast estates, parting with his lands to settlers on easy terms. his tenants generally were treated with liberality and consideration. if any land that was leased or sold did not turn out as was expected by the purchaser or lessee, another and better tract would be given in its place. if money was needed for improvements, lord fairfax advanced it. his excess revenues were given to the poor. so that the northern neck under lord fairfax's administration became the best settled, best cultivated, and best governed of all the upper regions of the colony.[ ] through this exile of circumstance, fate wove another curious thread in the destiny of john marshall. lord fairfax was the head of that ancient house whose devotion to liberty had been proved on many a battlefield. the second lord fairfax commanded the parliamentary forces at marston moor. the third lord fairfax was the general of cromwell's army and the hero of naseby. so the proprietor of the northern neck, who was the sixth lord fairfax, came of blood that had been poured out for human rights. he had, as an inheritance of his house, that love of liberty for which his ancestors had fought.[ ] but much as he hated oppression, lord fairfax was equally hostile to disorder and upheaval; and his forbears had opposed these even to the point of helping restore charles ii to the throne. thus the virginia baron's talk and teaching were of liberty with order, independence with respect for law.[ ] he loved literature and was himself no mean writer, his contributions while he was in the university having been accepted by the "spectator."[ ] his example instructed his companions in manners, too, and schooled them in the speech and deportment of gentlemen. all who met george washington in his mature years were impressed by his correct if restricted language, his courtly conduct, and his dignified if rigid bearing. much of this was due to his noble patron.[ ] thomas marshall was affected in the same way and by the same cause. pioneer and backwoodsman though he was, and, as we shall see, true to his class and section, he yet acquired more balanced ideas of liberty, better manners, and finer if not higher views of life than the crude, rough individualists who inhabited the back country. as was the case with washington, this intellectual and moral tendency in thomas marshall's development was due, in large measure, to the influence of lord fairfax. while it cannot be said that george washington imitated the wilderness nobleman, yet fairfax undoubtedly afforded his protégé a certain standard of living, thinking, and acting; and thomas marshall followed the example set by his fellow surveyor.[ ] thus came into the marshall household a different atmosphere from that which pervaded the cabins of the blue ridge. all this, however, did not make for his unpopularity among thomas marshall's distant, scattered, and humbly placed neighbors. on the contrary, it seems to have increased the consideration and respect which his native qualities had won for him from the pioneers. certainly thomas marshall was the foremost man in fauquier county when it was established in . he was almost immediately elected to represent the county in the virginia house of burgesses;[ ] and, six years later, he was appointed sheriff by governor fauquier, for whom the county was named.[ ] the shrievalty was, at that time, the most powerful local office in virginia; and the fees and perquisites of the place made it the most lucrative.[ ] by thomas marshall felt himself sufficiently established to acquire the land where he had lived since his removal from germantown. in the autumn of that year he leased from thomas ludwell lee and colonel richard henry lee the three hundred and thirty acres on goose creek "whereon the said thomas marshall now lives." the lease was "for and during the natural lives of ... thomas marshall, mary marshall his wife, and john marshall his son and ... the longest liver of them." the consideration was "five shillings current money in hand paid" and a "yearly rent of five pounds current money, and the quit rents and land tax."[ ] in leeds parish, embracing fauquier county, was established.[ ] of this parish thomas marshall became the principal vestryman.[ ] this office supplemented, in dignity and consequence, that of sheriff; the one was religious and denoted high social status, the other was civil and evidenced political importance.[ ] the occupancy of both marked thomas marshall as the chief figure in the local government and in the social and political life of fauquier county, although the holding of the superior office of burgess left no doubt as to his leadership. the vestries had immense influence in the civil affairs of the parish and the absolute management of the practical business of the established (episcopal) church.[ ] among the duties and privileges of the vestry was that of selecting and employing the clergyman.[ ] the vestry of leeds parish, with thomas marshall at its head, chose for its minister a young scotchman, james thompson, who had arrived in virginia a year or two earlier. he lived at first with the marshall family.[ ] thus it came about that john marshall received the first of his three short periods of formal schooling; for during his trial year the young[ ] scotch deacon returned thomas marshall's hospitality by giving the elder children such instruction as occasion offered,[ ] as was the custom of parsons, who always were teachers as well as preachers. we can imagine the embryo clergyman instructing the eldest son under the shade of the friendly trees in pleasant weather or before the blazing logs in the great fireplace when winter came. while living with the marshall family, he doubtless slept with the children in the half-loft[ ] of that frontier dwelling. there was nothing unusual about this; indeed, circumstances made it the common and unavoidable custom. washington tells us that in his surveying trips, he frequently slept on the floor in the room of a settler's cabin where the fireplace was and where husband, wife, children, and visitors stretched themselves for nightly rest; and he remarks that the person was lucky who got the spot nearest the fireplace.[ ] at the end of a year the embryo scottish clergyman's character, ability, and services having met the approval of thomas marshall and his fellow vestrymen, thompson returned to england for orders.[ ] so ended john marshall's first instruction from a trained teacher. his pious tutor returned the next year, at once married a young woman of the virginia frontier, and settled on the glebe near salem, where he varied his ministerial duties by teaching such children of his parishioners as could get to him. it may be that john marshall was among them.[ ] in the light they throw upon the marshall family, the political opinions of mr. thompson are as important as was his teaching. true to the impulses of youth, he was a man of the people, ardently championed their cause, and was fervently against british misrule, as was his principal vestryman. five years later we find him preaching a sermon on the subject so strong that a part of it has been preserved.[ ] thus the years of john marshall's life sped on until his eighteenth birthday. by this time thomas marshall's rapidly growing prosperity enabled him to buy a larger farm in a more favorable locality. in january, , he purchased from thomas turner seventeen hundred acres adjacent to north cobler mountain, a short distance to the east of his first location in "the hollow."[ ] for this plantation he paid "nine hundred and twelve pounds ten shillings current money of virginia." here he established himself for the third time and remained for ten years. on an elevation overlooking valley, stream, and grove, with the blue ridge as a near background, he built a frame house thirty-three by thirty feet, the attic or loft under the roof serving as a second story.[ ] the house had seven rooms, four below and three above. one of the upper rooms is, comparatively, very large, being twenty-one by fifteen feet; and, according to tradition, this was used as a school-room for the marshall children. indeed, the structure was, for that section and period, a pretentious dwelling. this is the famous oak hill.[ ] the house still stands as a modest wing to the large and attractive building erected by john marshall's eldest son, thomas, many years later. [illustration: oak hill from a water-color. the original house, built by thomas marshall in , is shown at the right, in the rear of the main building.] a book was placed in the hands of john marshall, at this time, that influenced his mind even more than his reading of pope's poetry when a small boy. blackstone's "commentaries" was published in america in and one of the original subscribers was "captain thomas marshall, clerk of dunmore county, virginia."[ ] the youthful backwoodsman read blackstone with delight; for this legal classic is the poetry of law, just as pope is logic in poetry. also, thomas marshall saw to it that his son read blackstone as carefully as circumstances permitted. he had bought the book for john's use as much as or more than for his own information. marshall's parents, with a sharp eye on the calling that then brought greatest honor and profit, had determined that their eldest son should be a lawyer. "from my infancy," says marshall, "i was destined for the bar."[ ] he did not, we believe, give his attention exclusively to blackstone. indeed, it appears certain that his legal reading at this period was fragmentary and interrupted, for his time was taken up and his mind largely absorbed by military exercises and study. he was intent on mastering the art of war against the day when the call of patriotism should come to him to be a soldier.[ ] so the law book was pushed aside by the manual of arms. about this time john marshall was given his second fragment of formal teaching. he was sent to the school of the reverend archibald campbell in westmoreland county.[ ] this embryo "academy" was a primitive affair, but its solitary instructor was a sound classical scholar equipped with all the learning which the scottish universities could give. he was a man of unusual ability, which, it appears, was the common possession of his family. he was the uncle of the british poet campbell.[ ] the sons of this colonial parson school-teacher from scotland became men of note and influence, one of them among the most distinguished lawyers of virginia.[ ] indeed, it was chiefly in order to teach his two boys that mr. campbell opened his little school in westmoreland.[ ] so, while john marshall attended the "academy" for only a few months, that brief period under such a teacher was worth much in methods of thought and study. the third scanty fragment of john marshall's education by professional instructors comes seven years later, at a time and under circumstances which make it necessary to defer a description of it. during all these years, however, young marshall was getting another kind of education more real and more influential on his later life than any regular schooling could have given him. thomas marshall served in the house of burgesses at williamsburg[ ] from until october, , when he became sheriff of fauquier county.[ ] in he was again chosen burgess,[ ] and reëlected until , when he was appointed clerk of dunmore county.[ ] in he once more appears as burgess for fauquier county.[ ] throughout this period, george washington also served as burgess from westmoreland county. thomas marshall was a member of the standing committees on trade, religion, propositions and grievances, and on several special committees and commissions.[ ] the situations, needs, and interests of the upland counties above the line of the falls of the rivers, so different from those on the tidewater, had made the political oligarchy of the lower counties more distinct and conspicuous than ever. this dominant political force was aristocratic and selfish. it was generally hostile to the opinions of the smaller pioneer landowners of the back country and it did not provide adequately for their necessities. their petitions for roads, bridges, and other indispensable requisites of social and industrial life usually were denied; and their rapidly growing democratic spirit was scorned with haughty disfavor and contempt.[ ] in the house of burgesses, one could tell by his apparel and deportment, no less than by his sentiments, a member from the mountains, and indeed from anywhere above the fall line of the rivers; and, by the same tokens, one from the great plantations below. the latter came fashionably attired, according to the latest english mode, with the silk knee breeches and stockings, colored coat, ornamented waistcoat, linen and lace, buckled shoes, garters, and all details of polite adornment that the london fashion of the time dictated. the upland men were plainly clad; and those from the border appeared in their native homespun, with buckskin shirts, coonskin caps, and the queue of their unpowdered hair tied in a bag or sack of some thin material. to this upland class of burgesses, thomas marshall belonged. he had been a member of the house for four years when the difference between the two virginia sections and classes suddenly crystallized. the upper counties found a leader and fought and overcame the hitherto invincible power of the tidewater aristocracy, which, until then, had held the government of virginia in its lordly hand. this explosion came in , when john marshall was ten years old. for nearly a quarter of a century the combination of the great planter interests of eastern virginia had kept john robinson speaker of the house and treasurer of the colony.[ ] he was an ideal representative of his class--rich, generous, kindly, and ever ready to oblige his fellow members of the ruling faction.[ ] to these he had lent large sums of money from the public treasury and, at last, finding himself lost unless he could find a way out of the financial quagmire in which he was sinking, robinson, with his fellow aristocrats, devised a scheme for establishing a loan office, equipping it with a million and a quarter of dollars borrowed on the faith of the colony, to be lent to individuals on personal security.[ ] a bill to this effect was presented and the tidewater machine was oiled and set in motion to put it through. as yet, robinson's predicament was known only to himself and those upon whom he had bestowed the proceeds of the people's taxes; and no opposition was expected to the proposed resolution which would extricate the embarrassed treasurer. but patrick henry, a young member from hanover county, who had just been elected to the house of burgesses and who had displayed in the famous parsons case a courage and eloquence which had given him a reputation throughout the colony,[ ] opposed, on principle, the proposed loan-office law. in a speech of startling power he attacked the bill and carried with him every member from the up counties. the bill was lost.[ ] it was the first defeat ever experienced by the combination that had governed virginia so long that they felt that it was their inalienable right to do so. one of the votes that struck this blow was cast by thomas marshall.[ ] robinson died the next year; his defalcation was discovered and the real purpose of the bill was thus revealed.[ ] quick on the heels of this victory for popular rights and honest government trod another event of vital influence on american history. the british parliament, the year before, had passed resolutions declaring the right of parliament to tax the colonies without representation, and, indeed, to enact any law it pleased for the government and administration of british dominions wherever situated.[ ] the colonies protested, virginia among them; but when finally parliament enacted the stamp act, although the colonies were in sullen anger, they yet prepared to submit.[ ] the more eminent men among the virginia burgesses were willing to remonstrate once more, but had not the heart to go further.[ ] it was no part of the plan or feeling of the aristocracy to affront the royal government openly. at this moment, patrick henry suddenly offered his historic resolutions, the last one a bold denial of parliament's right to pass the stamp act, and a savage defiance of the british government.[ ] cautious members of the tidewater organization were aghast. they did not like the stamp act themselves, but they thought that this was going too far. the logical end of it would be armed conflict, they said; or at the very least, a temporary suspension of profitable commerce with england. their material interests were involved; and while they hazarded these and life itself most nobly when the test of war finally came, ten years later, they were not minded to risk either business or comfort until forced to do so.[ ] but a far stronger influence with them was their hatred of henry and their fear of the growing power of the up country. they were smarting from the defeat[ ] of the loan-office bill. they did not relish the idea of following the audacious henry and his democratic supporters from the hills. they resented the leadership which the "new men" were assuming. to the aristocratic machine it was offensive to have any movement originate outside itself.[ ] the up-country members to a man rallied about patrick henry and fought beneath the standard of principle which he had raised. the line that marked the division between these contending forces in the virginia house of burgesses was practically identical with that which separated them in the loan-office struggle which had just taken place. the same men who had supported robinson were now against any measure which might too radically assert the rights of the colonies and offend both the throne and westminster hall. and as in the robinson case so in the fight over henry's stamp act resolutions, the burgesses who represented the frontier settlers and small landowners and who stood for their democratic views, formed a compact and militant force to strike for popular government as they already had struck, and successfully, for honest administration.[ ] henry's fifth resolution was the first written american assertion of independence, the virile seed out of which the declaration at philadelphia ten years later directly grew. it was over this resolution that thomas jefferson said, "the debate was most bloody";[ ] and it was in this particular part of the debate that patrick henry made his immortal speech, ending with the famous words, "tarquin and cæsar had each his brutus, charles the first his cromwell, and george the third--" and as the cries of "treason! treason! treason!" rang from every part of the hall, henry, stretching himself to the utmost of his stature, thundered, "--_may profit by their example_. if _this_ be treason, make the most of it."[ ] henry and the stout-hearted men of the hills won the day, but only by a single vote. peyton randolph, the foremost member of the tidewater aristocracy and royal attorney-general, exclaimed, "by god, i would have given one[ ] hundred guineas for a single vote!"[ ] thomas marshall again fought by henry's side and voted for his patriotic defiance of british injustice.[ ] [illustration: _oak hill_] this victory of the poorer section of the old dominion was, in virginia, the real beginning of the active period of the revolution. it was more--it was the ending of the hitherto unquestioned supremacy of the tidewater aristocracy.[ ] it marked the effective entrance of the common man into virginia's politics and government. when thomas marshall returned to his blue ridge home, he described, of course, the scenes he had witnessed and taken part in. the heart of his son thrilled, we may be sure, as he listened to his father reciting patrick henry's words of fire and portraying the manner, appearance, and conduct of that master orator of liberty. so it was that john marshall, even when a boy, came into direct and living touch with the outside world and learned at first hand of the dramatic movement and the mighty forces that were about to quarry the materials for a nation. finally the epic year of arrived,--the year of the boston riots, paul revere's ride, lexington and concord,--above all, the year of the virginia resolutions for arming and defense. here we find thomas marshall a member of the virginia convention,[ ] when once more the radicals of the up country met and defeated the aristocratic conservatives of the older counties. the latter counseled prudence. they argued weightily that the colony was not prepared for war with the royal power across the sea. they urged patience and the working-out of the problem by processes of conciliation and moderate devices, as those made timid by their own interests always do.[ ] selfish love of ease made them forget, for the moment, the lesson of braddock's defeat. they held up the overwhelming might of great britain and the impotence of the king's subjects in his western dominions; and they were about to prevail. but again patrick henry became the voice of america. he offered the resolutions for arming and defense and carried them with that amazing speech ending with, "give me liberty or give me death,"[ ] which always will remain the classic of american liberty. thomas marshall, who sat beneath its spell, declared that it was "one of the most bold, animated, and vehement pieces of eloquence that had ever been delivered."[ ] once more he promptly took his stand under henry's banner and supported the heroic resolutions with his vote and influence.[ ] so did george washington, as both had done ten years before in the battle over henry's stamp act resolutions in the house of burgesses in .[ ] not from newspapers, then, nor from second-hand rumor did john marshall, now nineteen years old, learn of the epochal acts of that convention. he heard of them from his father's lips. henry's inspired speech, which still burns across a century with undiminished power, came to john marshall from one who had listened to it, as the family clustered around the fireside of their oak hill home. the effect on john marshall's mind and spirit was heroic and profound, as his immediate action and his conduct for several years demonstrate. we may be sure that the father was not deceived as to the meaning of it all; nor did he permit his family to be carried off the solid ground of reality by any emotional excitement. thomas marshall was no fanatic, no fancy-swayed enthusiast resolving highly in wrought-up moments and retracting humbly in more sober hours. he was a man who looked before he leaped; he counted the costs; he made up his mind with knowledge of the facts. when thomas marshall decided to act, no unforeseen circumstance could make him hesitate, no unexpected obstacle could swerve him from his course; for he had considered carefully and well; and his son was of like mettle. so when thomas marshall came back to his fauquier county home from the fateful convention of at richmond, he knew just what the whole thing meant; and, so knowing, he gravely welcomed the outcome. he knew that it meant war; and he knew also what war meant. already he had been a virginia ranger and officer, had seen fighting, had witnessed wounds and death.[ ] the same decision that made him cast his vote for henry's resolutions also caused thomas marshall to draw his sword from its scabbard. it inspired him to do more; for the father took down the rifle from its deerhorn bracket and the hunting-knife from its hook, and placed them in the hands of his first-born. and so we find father and son ready for the field and prepared to make the ultimate argument of willingness to lay down their lives for the cause they believed in. footnotes: [ ] story, in dillon, iii, . [ ] the records of westmoreland county do not show what disposition thomas marshall made of the one hundred acres given him by his mother. (letter of albert stuart, deputy clerk of westmoreland county, virginia, to the author, aug. , .) he probably abandoned it just as john washington and thomas pope abandoned one thousand acres of the same land. (_supra._) [ ] westmoreland county is on the potomac river near its entrance into chesapeake bay. prince william is about thirty miles farther up the river. marshall was born about one hundred miles by wagon road from appomattox creek, northwest toward the blue ridge and in the wilderness. [ ] campbell, - . [ ] more than forty years later the country around the blue ridge was still a dense forest. (la rochefoucauld, iii, .) and the road even from richmond to petersburg, an hundred miles east and south of the marshall cabin, as late as ran through "an almost uninterrupted succession of woods." (_ib._, ; and see _infra_, chap. vii.) [ ] john, ; elizabeth, ; mary, ; thomas, . [ ] binney, in dillon, iii, . [ ] the ancient trunks of one or two of these trees still stand close to the house. [ ] british map of ; virginia state library. [ ] see la rochefoucauld, iii, . these "roads" were scarcely more than mere tracks through the forests. see chap. vii, infra, for description of roads at the period between the close of the revolution and the beginning of our national government under the constitution. even in the oldest and best settled colonies the roads were very bad. chalkley's _augusta county (va.) records_ show many orders regarding roads; but, considering the general state of highways, (see _infra_, chap. vii) these probably concerned very primitive efforts. when thomas marshall removed his family to the blue ridge, the journey must have been strenuous even for that hardship-seasoned man. [ ] she was born in . (paxton, .) [ ] at this time, thomas marshall had at least two slaves, inherited from his father. (will of john marshall "of the forest," appendix i.) as late as (nearly forty years after thomas marshall went to "the hollow"), la rochefoucauld found that even on the "poorer" plantations about the blue ridge the "planters, however wretched their condition, have all of them one or two negroes." (la rochefoucauld, iii, .) [ ] personal inspection. [ ] mill-sawed weather-boarding, held by cut nails, now covers the sides of the house, the original broad whip-sawed boards, fastened by wrought nails, having long since decayed. [ ] practically all log cabins, at that time, had only one story. [ ] see _infra_. [ ] six more children were born while the marshalls remained in "the hollow": james m., ; judith, ; william and charles, ; lucy, ; and alexander, . [ ] nearly twenty years later, "winchester was rude, wild, as nature had made it," but "it was less so than its inhabitants." (mrs. carrington to her sister nancy, describing winchester in , from personal observation; ms.) [ ] see mrs. carrington to her sister nancy, _infra_, chap. v. [ ] john marshall, when at the height of his career, liked to talk of these times. "he ever recurred with fondness to that primitive mode of life, when he partook with a keen relish of balm tea and mush; and when the females used thorns for pins." (howe, , and see _hist. mag._, iii, .) most of the settlers on the frontier and near frontier did not use forks or tablecloths. washington found this condition in the house of a justice of the peace. "when we came to supper there was neither a cloth upon ye table nor a knife to eat with; but as good luck would have it, we had knives of our [own]." (_writings_: ford, i, .) chastellux testifies that, thirty years later, the frontier settlers were forced to make almost everything they used. thus, as population increased, necessity developed men of many trades and the little communities became self-supporting. (chastellux, - .) [ ] more than a generation after thomas marshall moved to "the hollow" in the blue ridge large quantities of bear and beaver skins were brought from the valley into staunton, not many miles away, just over the ridge. (la rochefoucauld, iii, - .) the product of the blue ridge itself was sent to fredericksburg and alexandria. (see crèvecoeur, - .) thirty years earlier ( ) colonel byrd records that "bears, wolves, and panthers" roamed about the site of richmond; that deer were plentiful and rattlesnakes considered a delicacy. (byrd's _writings_: bassett, , - .) [ ] see _infra_, chap. vii. [ ] even forty years later, all "store" merchandise could be had in this region only by hauling it from richmond, fredericksburg, or alexandria. transportation from the latter place to winchester cost two dollars and a half per hundredweight. in , "store" goods of all kinds cost, in the blue ridge, thirty per cent more than in philadelphia. (la rochefoucauld, iii, .) from philadelphia the cost was four to five dollars per hundredweight. while there appear to have been country stores at staunton and winchester, over the mountains (chalkley's _augusta county (va.) records_), the cost of freight to those places was prohibitive of anything but the most absolute necessities even ten years after the constitution was adopted. [ ] _hist. mag._, iii, ; howe, ; also, story, in dillon, iii, . [ ] story, in dillon, iii, - . [ ] _ib._ [ ] see binney, in dillon, iii, . [ ] "fauquier was then a frontier county ... far in advance of the ordinary reach of compact population." (story, in dillon, iii, ; also see _new york review_ ( ), iii, .) even a generation later ( ), la rochefoucauld, writing from personal investigation, says (iii, - ): "there is no state so entirely destitute of all means of public education as virginia." [ ] see binney, in dillon, iii, . [ ] story, in dillon, iii, . [ ] marshall to story, july , ; story, ii, . [ ] see _infra_, chaps. vii and viii. [ ] "a taste for reading is more prevalent [in virginia] among the gentlemen of the first class than in any other part of america; but the common people are, perhaps, more ignorant than elsewhere." (la rochefoucauld, iii, .) other earlier and later travelers confirm this statement of this careful french observer. [ ] story thinks that thomas marshall, at this time, owned milton, shakespeare, and dryden. (dillon, iii, .) this is possible. twenty years later, chastellux found milton, addison, and richardson in the parlor of a new jersey inn; but this was in the comparatively thickly settled country adjacent to philadelphia. (chastellux, .) [ ] story, in dillon, iii, , and binney, in _ib._, ; _hist. mag._, iii, . [ ] lang: _history of english literature_, ; and see gosse: _history of eighteenth century literature_, ; also, traill: _social england_, v, ; stephen: _alexander pope_, ; and see cabot to hamilton, nov. , ; _cabot_: lodge, . [ ] binney, in dillon, iii, - ; washington's _diary_; ms., lib. cong. [ ] irving, i, ; and lodge: _washington_, i, . many years later when he became rich, washington acquired a good library, part of which is now in the boston athenæum. but as a young and moneyless surveyor he had no books of his own and his "book" education was limited and shallow. [ ] binney, in dillion, iii, - . [ ] irving, i, , ; and sparks, . [ ] irving, i, . [ ] irving, i, . [ ] as will appear, the fairfax estate is closely interwoven into john marshall's career. (see vol. ii of this work.) [ ] for description of greenway court see pecquet du bellet, ii, . [ ] washington's _writings_: ford, i, footnote to . [ ] for a clear but laudatory account of lord fairfax see appendix no. to burnaby, - . but fairfax could be hard enough on those who opposed him, as witness his treatment of joist hite. (see _infra_, chap. v.) [ ] when the revolution came, however, fairfax was heartily british. the objection which the colony made to the title to his estate doubtless influenced him. [ ] fairfax was a fair example of the moderate, as distinguished from the radical or the reactionary. he was against both irresponsible autocracy and unrestrained democracy. in short, he was what would now be termed a liberal conservative (although, of course, such a phrase, descriptive of that demarcation, did not then exist). much attention should be given to this unique man in tracing to their ultimate sources the origins of john marshall's economic, political, and social convictions. [ ] sparks, ; and irving, i, . [ ] for fairfax's influence on washington see irving, i, ; and in general, for fair secondary accounts of fairfax, see _ib._, - ; and sparks, - . [ ] senator humphrey marshall says that thomas marshall "emulated" washington. (humphrey marshall, i, .) [ ] see _infra_. [ ] bond of thomas marshall as sheriff, oct. , ; records of fauquier county (va.), deed book, iii, . approval of bond by county court; minute book (from to ), . marshall's bond was "to his majesty, george iii," to secure payment to the british revenue officers of all money collected by marshall for the crown. (records of fauquier county (va.), deed book, iii, .) [ ] bruce: _inst._, i, , ; also, ii, , - . [ ] records of fauquier county (va.), deed book, ii, . there is a curious record of a lease from lord fairfax in to john marshall for his life and "the natural lives of mary his wife and thomas marshall his son and every of them longest living." (records of fauquier county (va.), deed book, iii, .) john marshall was then only thirteen years old. the lease probably was to thomas marshall, the clerk of lord fairfax having confused the names of father and son. [ ] meade, ii, . [ ] in three deeds for an aggregate of two hundred and twenty acres "for a glebe" were recorded in fauquier county to "thos. marshall & others, gentlemen, & vestrymen of leeds parish." (records of fauquier county (va.), deed book, v, , , .) [ ] the vestrymen were "the foremost men ... in the parish ... whether from the point of view of intelligence, wealth or social position." (bruce: _inst._, i, ; and see meade, i, .) [ ] bruce: _inst._, i, - ; and see eckenrode: _s.c. & s._, . [ ] bruce: _inst._, i, _et seq._ [ ] meade, ii, . bishop meade here makes a slight error. he says that mr. thompson "lived at first in the family of colonel thomas marshall, of oak hill." thomas marshall did not become a colonel until ten years afterward. (heitman, .) and he did not move to oak hill until , six years later. (paxton, .) [ ] james thompson was born in . (meade, ii, .) [ ] _ib._ [ ] forty years later la rochefoucauld found that the whole family and all visitors slept in the same room of the cabins of the back country. (la rochefoucauld, iv, - .) [ ] "i have not sleep'd above three nights or four in a bed, but, after walking ... all the day, i lay down before the fire upon a little hay, straw, fodder or bearskin ... with man, wife, and children, like a parcel of dogs and cats; and happy is he, who gets the berth nearest the fire." (washington to a friend, in ; _writings_: ford, i, .) here is another of washington's descriptions of frontier comforts: "i not being so good a woodsman as ye rest of my company, striped myself very orderly and went into ye bed, as they calld it, when to my surprize, i found it to be nothing but a little straw matted together without sheets or any thing else, but only one thread bear [_sic_] blanket with double its weight of vermin such as lice, fleas, &c." (washington's _diary_, march , ; _ib._, .) and see la rochefoucauld, iii, , for description of homes of farmers in the valley forty years later--miserable log huts "which swarmed with children." thomas marshall's little house was much better than, and the manners of the family were far superior to, those described by washington and la rochefoucauld. [ ] meade, ii, . [ ] _ib._ bishop meade says that thomas marshall's sons were sent to mr. thompson again; but marshall himself told justice story that the scotch parson taught him when the clergyman lived at his father's house. [ ] meade, ii, . this extract of mr. thompson's sermon was treasonable from the tory point of view. see _infra_, chap. iii. [ ] records of fauquier county (va.), deed book, v, . this purchase made thomas marshall the owner of about two thousand acres of the best land in fauquier county. he had sold his goose creek holding in "the hollow." [ ] the local legend, current to the present day, is that this house had the first glass windows in that region, and that the bricks in the chimney were imported from england. the importation of brick, however, is doubtful. very little brick was brought to virginia from england. [ ] five more children of thomas and mary marshall were born in this house: louis, ; susan, ; charlotte, ; jane, ; and nancy, . (paxton.) [ ] this volume is now in the possession of judge j. k. m. norton, of alexandria, va. on several leaves are printed the names of the subscribers. among them are pelatiah webster, james wilson, nathanael greene, john adams, and others. [ ] _autobiography._ [ ] binney, in dillon, iii, . [ ] story and binney say that marshall's first schooling was at campbell's "academy" and his second and private instruction under mr. thompson. the reverse seems to have been the case. [ ] meade, ii, , and footnote to . [ ] _ib._, . [ ] _ib._ [ ] journal, h.b. ( - ), . thomas marshall was seldom out of office. burgess, sheriff, vestryman, clerk, were the promising beginnings of his crowded office-holding career. he became surveyor of fayette county, kentucky, upon his removal to that district, and afterwards collector of revenue for the district of ohio. (humphrey marshall, i, ; and see ii, chap. v, of this work. thomas marshall to adams, april , ; ms.) in holding offices, john marshall followed in his father's footsteps. [ ] journal, h.b. ( - ), and . [ ] his election was contested in the house, but decided in marshall's favor. (_ib._ ( - ), , , .) [ ] _ib._, ( - ), . county clerks were then appointed by the secretary of state. in some respects the clerk of the county court had greater advantages than the sheriff. (see bruce: _inst._, i, _et seq._) dunmore county is now shenandoah county. the revolution changed the name. when thomas marshall was appointed clerk, the house of burgesses asked the governor to issue a writ for a new election in fauquier county to fill marshall's place as burgess. (_ib._ ( - ), .) [ ] _ib._ ( - ), . [ ] _ib._, , , ; ( - ), , , , , , , , , , ; ( - ), , . [ ] ambler, introduction. [ ] ambler, - . [ ] henry, i, . [ ] _ib._, - . [ ] henry, i, - . [ ] wirt, _et seq._ it passed the house (journal, h.b. ( - ), ); but was disapproved by the council. (_ib._, ; and see henry, i, .) [ ] the "ayes" and "noes" were not recorded in the journals of the house; but jefferson says, in his description of the event, which he personally witnessed, that henry "carried with him all the members of the upper counties and left a minority composed merely of the aristocracy." (wirt, .) "the members, who, like himself [henry], represented the yeomanry of the colony, were filled with admiration and delight." (henry, i, .) [ ] wirt, . the incident, it appears, was considered closed with the defeat of the loan-office bill. robinson having died, nothing further was done in the matter. for excellent condensed account see eckenrode: _r. v._, - . [ ] declaratory resolutions. [ ] for the incredible submission and indifference of the colonies before patrick henry's speech, see henry, i, - . the authorities given in those pages are conclusive. [ ] _ib._, . [ ] _ib._, - . [ ] _ib._, - . [ ] wirt, - . [ ] eckenrode: _r. v._, - . [ ] "the members from the upper counties invariably supported mr. henry in his revolutionary measures." (jefferson's statement to daniel webster, quoted in henry, i, .) [ ] henry, i, . [ ] henry, i, , and authorities there cited in the footnote. [ ] misquoted in wirt ( ) as " guineas." [ ] jefferson to wirt, aug. , ; _works_: ford, xi, . [ ] it is most unfortunate that the "ayes" and "noes" were not kept in the house of burgesses. in the absence of such a record, jefferson's repeated testimony that the up-country members voted and worked with henry must be taken as conclusive of thomas marshall's vote. for not only was marshall burgess from a frontier county, but jefferson, at the time he wrote to wirt in (and gave the same account to others later), had become very bitter against the marshalls and constantly attacked john marshall whom he hated virulently. if thomas marshall had voted out of his class and against henry, so remarkable a circumstance would surely have been mentioned by jefferson, who never overlooked any circumstance unfavorable to an enemy. far more positive evidence, however, is the fact that washington, who was a burgess, voted with henry, as his letter to francis dandridge, sept. , , shows. (_writings_: ford, ii, .) and thomas marshall always acted with washington. [ ] "by these resolutions, mr. henry took the lead out of the hands of those who had heretofore guided the proceedings of the house." (jefferson to wirt, aug. , ; _works_: ford, xi, .) [ ] _proceedings_, va. conv., , march , ; july , , , . [ ] henry, i, - ; wirt, - . except henry's speech itself, wirt's summary of the arguments of the conservatives is much the best account of the opposition to henry's fateful resolutions. [ ] wirt, ; henry, i, - . [ ] _ib._, ; and wirt, . [ ] in the absence of the positive proof afforded by a record of the "ayes" and "noes," jefferson's testimony, washington's vote, thomas marshall's tribute to henry, and above all, the sentiment of the frontier county he represented, are conclusive testimony as to thomas marshall's stand in this all-important legislative battle which was the precursor of the iron conflict soon to come in which he bore so heroic a part. (see humphrey marshall, i, .) [ ] washington was appointed a member of the committee provided for in henry's second resolution. (henry, i, .) [ ] thomas marshall had been ensign, lieutenant, and captain in the militia, had taken part in the indian wars, and was a trained soldier. (crozier: _virginia colonial militia_, .) chapter iii a soldier of the revolution our liberties are at stake. it is time to brighten our fire-arms and learn to use them in the field. (marshall to culpeper minute men, .) our sick naked, and well naked, our unfortunate men in captivity naked. (washington, .) i have seen a regiment consisting of _thirty men_ and a company of _one corporal_. (von steuben, .) the fighting men of the up counties lost not a minute's time. blood had been shed in new england; blood, they knew, must soon flow in virginia. at once culpeper, orange, and fauquier counties arranged to raise a regiment of minute men with lawrence taliaferro of orange as colonel, edward stevens of culpeper as lieutenant, thomas marshall of fauquier as major.[ ] out over the countryside went the word; and from mountain cabins and huts in forest clearings, from log abodes in secluded valleys and on primitive farms, the fighting yeomanry of northern virginia came forth in answer. in the years between patrick henry's two epochal appeals in and , all virginia, but particularly the back country, had been getting ready to make answer in terms of rifle and lead. "no man should scruple, or hesitate a moment, to use arms," wrote washington in .[ ] thomas marshall's minister, mr. thompson, preached militant preparation; parliament had deprived the colonists of "their just and legal rights" by acts which were "destructive of their liberties," thundered the parson; it had "overawed the inhabitants by british troops," loaded "great hardships" upon the people, and "reduced the poor to great want." the preacher exhorted his flock "as men and christians" to help "supply the country with arms and ammunition," and referred his hearers, for specific information, to "the committee of this county,"[ ] whose head undoubtedly was their burgess and leading vestryman of the parish, thomas marshall. when news of concord and lexington finally trickled through to upper virginia, it found the men of her hills and mountains in grim readiness; and when, soon after, henry's flaming words came to them, they were ready and eager to make those words good with their lives. john marshall, of course, was one of the band of youths who had agreed to make up a company if trouble came. in may, , these young frontiersmen were called together. their captain did not come, and marshall was appointed lieutenant, "instead of a better," as he modestly told his comrades. but, for his years, "a better" could not have been found; since john marshall had received careful military instruction from his father.[ ] indeed, during the two years before his company took the field in actual warfare, the youth had devoted most of his time to preparing himself, by study and practice, for military service.[ ] so these embryo warriors gathered about their leader to be told what to do.[ ] here we get the first glimpse of john marshall's power over men. "he had come," the young officer informed his comrades of the backwoods, "to meet them as fellow soldiers, who were likely to be called on to defend their country." their own "rights and liberties" were at stake. their brothers in new england had fought and beaten the british; now "it is time to brighten our fire-arms and learn to use them in the field." he would show them how to do this. so the boys fell into line, and john marshall, bringing his own gun to his shoulder, instructed them in the manual of arms. he first gave the words of command slowly and distinctly and then illustrated the movements with his own rifle so that every man of the company might clearly understand what each order meant and how to execute it. he then put the company through the drill.[ ] on this muster field we learn how john marshall looked in his nineteenth year. he was very tall, six feet at least, slender and erect. his complexion was dark, with a faint tinge of red. his face was round--"nearly a circle." his forehead was straight and low, and thick, strong, "raven black" hair covered his head. intense eyes "dark to blackness,"[ ] of compelling power, pierced the beholder while they reassured him by the good nature which shone from them. "he wore a purple or pale blue hunting-shirt, and trousers of the same material fringed with white."[ ] at this point, too, we first learn of his bent for oratory. what his father told him about the debates in the house of burgesses, the speeches of wythe and lee and randolph, and above all, patrick henry; what he had dreamed and perhaps practiced in the silent forests and vacant fields, here now bore public fruit. when he thought that he had drilled his company enough for the time being, marshall told them to fall out, and, if they wished to hear more about the war, to gather around him and he would make them a speech.[ ] and make them a speech he did. before his men the youthful lieutenant stood, in his hand his "round black hat mounted with a buck's tail for a cockade," and spoke to that company of country boys of the justice of their cause and of those larger things in life for which all true men are glad to die. "for something like an hour" he spoke, his round face glowing, the dormant lightning of his eye for the time unloosed. lively words they were, we may be sure; for john marshall was as ardent a patriot as the colonies could produce. he had learned the elementary truths of liberty in the school of the frontier; his soul was on fire with the burning words of henry; and he poured forth his immature eloquence not to a company of peaceful theorists, but to a group of youths ready for the field. its premises were freedom and independence; its conclusion was action. it was a battle speech.[ ] this fact is very important to an understanding of john marshall's character, and indeed of the blood that flowed in his veins. for, as we shall find, he was always on the firing line; the marshall blood was fighting blood.[ ] but it was not all labor of drill and toil of discipline, heroics of patriotic speech, or solemn preachments about duty, for the youths of john marshall's company. if he was the most earnest, he was also, it seems, the jolliest person in the whole band; and this deserves especial note, for his humor was a quality which served not only the young soldier himself, but the cause for which he fought almost as well as his valor itself, in the martial years into which he was entering. indeed this capacity for leavening the dough of serious purpose with the yeast of humor and diversion made john marshall's entire personal life wholesome and nutritious. jokes and fun were a part of him, as we shall see, whether in the army, at the bar, or on the bench. so when, the business of the day disposed of, lieutenant marshall challenged his sure-eyed, strong-limbed, swift-footed companions to a game of quoits, or to run a race, or to jump a pole, we find him practicing that sport and comradeship which, luckily for himself and his country, he never outgrew. pitch quoits, then, these would-be soldiers did, and coursed their races, and vaulted high in their running jumps.[ ] faster than any of them could their commander run, with his long legs out-going and his powerful lungs out-winding the best of them. he could jump higher, too, than anybody else; and from this accomplishment he got his soldier nickname "silver heels" in washington's army a year later.[ ] the final muster of the culpeper minute men was in "major clayton's old field" hard by the county seat[ ] on september , .[ ] they were clad in the uniform of the frontier, which indeed was little different from their daily apparel. fringed trousers often of deerskins, "strong brown linen hunting-shirts dyed with leaves, ... buck-tails in each hat, and a leather belt about the shoulders, with tomahawk and scalping-knife" made up their warlike costume.[ ] by some preconcert,--an order perhaps from one of the three superior officers who had poetic as well as fighting blood in him,--the mothers and wives of this wilderness soldiery had worked on the breast of each hunting-shirt in large white letters the words "liberty or death,"[ ] with which patrick henry had trumpeted the purpose of hitherto inarticulate america. early in the autumn of came the expected call. not long had the "shirt men,"[ ] as they were styled, been drilling near the court-house of culpeper county when an "express" came from patrick henry.[ ] this was a rider from williamsburg, mounting swift relays as he went, sometimes over the rough, miry, and hazardous roads, but mostly by the bridle paths which then were virginia's principal highways of land travel. the "express" told of the threatening preparations of lord dunmore, then royal governor of virginia, and bore patrick henry's command to march at once for the scene of action a hundred miles to the south. instantly the culpeper minute men were on the move. "we marched immediately," wrote one of them, "and in a few days were in williamsburg." news of their coming went before them; and when the better-settled districts were reached, the inhabitants were in terror of them, for the culpeper minute men were considered as "savage backwoodsmen" by the people of these older communities.[ ] and indeed they must have looked the part, striding along armed to the teeth with the alarming weapons of the frontier,[ ] clad in the rough but picturesque war costume of the backwoods, their long hair falling behind, untied and unqueued. when they reached williamsburg half of the minute men were discharged, because they were not needed;[ ] but the other half, marching under colonel woodford, met and beat the enemy at great bridge, in the first fight of the revolution in virginia, the first armed conflict with british soldiers in the colonies since bunker hill. in this small but bloody battle, thomas marshall and his son took part.[ ] the country around norfolk swarmed with tories. governor dunmore had established martial law, proclaimed freedom of slaves, and summoned to the royal standard everybody capable of bearing arms. he was busy fortifying norfolk and mounting cannon upon the entrenchments. hundreds of the newly emancipated negroes were laboring upon these fortifications. to keep back the patriots until this military work should be finished, the governor, with a force of british regulars and all the fighting men whom he could gather, took up an almost impregnable position near great bridge, about twenty miles from norfolk, "in a small fort on an oasis surrounded by a morass, not far from the dismal swamp, accessible on either side by a long causeway." here dunmore and the loyalists awaited the americans.[ ] when the latter came up they made their camp "within gunshot of this post, in mud and mire, in a village at the southern end of the causeway." across this the patriot volunteers threw a breastwork. but, having no cannon, they did not attack the british position. if only dunmore would take the offensive, the americans felt that they would win. legend has it that through a stratagem of thomas marshall, the british assault was brought on. he instructed his servant to pretend to desert and mislead the governor as to the numbers opposing him. accordingly, marshall's decoy sought the enemy's lines and told dunmore that the insurgents numbered not more than three hundred. the governor then ordered the british to charge and take the virginians, "or die in the attempt."[ ] "between daybreak and sunrise," captain fordyce, leading his grenadiers six abreast, swept across the causeway upon the american breastworks. marshall himself tells us of the fight. the shots of the sentinels roused the little camp and "the bravest ... rushed to the works," firing at will, to meet the british onset. the gallant fordyce "fell dead within a few steps of the breastwork.... every grenadier ... was killed or wounded; while the americans did not lose a single man." full one hundred of the british force laid down their lives that bloody december morning, among them four of the king's officers. small as was this affair,--which was called "the little bunker hill,"--it was more terrible than most military conflicts in loss of life in proportion to the numbers engaged.[ ] this was john marshall's first lesson[ ] in warfare upon the field of battle. also, the incidents of great bridge, and what went before and came immediately after, gave the fledgling soldier his earliest knowledge of that bickering and conflict of authority that for the next four years he was to witness and experience in far more shocking and dangerous guise.[ ] within a few months from the time he was haranguing his youthful companions in "major clayton's old field" in culpeper county, john marshall learned, in terms of blood and death and in the still more forbidding aspects of jealousy and dissension among the patriots themselves, that freedom and independence were not to be wooed and won merely by high-pitched enthusiasm or fervid speech. the young soldier in this brief time saw a flash of the great truth that liberty can be made a reality and then possessed only by men who are strong, courageous, unselfish, and wise enough to act unitedly as well as to fight bravely. he began to discern, though vaguely as yet, the supreme need of the organization of democracy. after the victory at great bridge, marshall, with the culpeper minute men, marched to norfolk, where he witnessed the "american soldiers frequently amuse themselves by firing" into dunmore's vessels in the harbor; saw the exasperated governor imprudently retaliate by setting the town on fire; and beheld for "several weeks" the burning of virginia's metropolis.[ ] marshall's battalion then marched to suffolk, and was discharged in march, .[ ] with this experience of what war meant, john marshall could have returned to the safety of oak hill and have spent, at that pleasant fireside, the red years that were to follow, as indeed so many in the colonies who then and after merely prated of liberty, actually did. but it was not in the marshall nature to support a cause with lip service only. father and son chose the sterner part; and john marshall was now about to be schooled for four years by grim instructors in the knowledge that strong and orderly government is necessary to effective liberty. he was to learn, in a hard and bitter school, the danger of provincialism and the value of nationality. not for long did he tarry at the fauquier county home; and not an instant did the father linger there. thomas marshall, while still serving with his command at great bridge, was appointed by the legislature major of the third virginia regiment; and at once entered the continental service;[ ] on july , , four months after the culpeper minute men, their work finished, had been disbanded by the new state, his son was commissioned lieutenant in the same regiment. the fringed hunting-shirt and leggings, the buck-tail headgear, scalping-knife, and tomahawk of the backwoods warrior now gave place to the buff and blue uniform, the three-cornered hat,[ ] the sword, and the pistol of the continental officer; and major thomas marshall and his son, lieutenant john marshall, marched away to the north to join washington, and under him to fight and suffer through four black and heart-breaking years of the revolution. it is needful, here, to get clearly in our minds the state of the american army at this time. what particular year of the revolution was darkest up almost to the victorious end, it is hard to say. studying each year separately one historian will conclude that sounded the depths of gloom; another plumbs still greater despair at valley forge; still another will prove that the bottom was not reached until ' or ' . and all of them appear to be right.[ ] even as early as january, , when the war was new, and enthusiasm still warm, washington wrote to the president of congress, certain states having paid no attention to his application for arms: "i have, as the last expedient, sent one or two officers from each regiment into the country, with money to try if they can buy."[ ] a little later he writes: "my situation has been such, that i have been obliged to use art to conceal it from my own officers."[ ] congress even placed some of washington's little army under the direction of the committee of safety of new york; and washington thus wrote to that committee: "i should be glad to know how far it is conceived that my powers over them [the soldiers] extend, or whether i have any at all. sure i am that they cannot be subjected to the direction of both"[ ] (the committee and himself). in september the commander-in-chief wrote to the president of congress that the terms of enlistment of a large portion of the army were about to expire, and that it was direful work "to be forming armies constantly, and to be left by troops just when they begin to deserve the name, or perhaps at a moment when an important blow is expected."[ ] four days later washington again told congress, "beyond the possibility of doubt, ... unless some speedy and effectual measures are adopted by congress, our cause will be lost."[ ] on december , , the army was "greatly reduced by the departure of the maryland _flying camp_ men, and by sundry other causes."[ ] a little afterwards general greene wrote to governor cooke [of rhode island] that "two brigades left us at brunswick, notwithstanding the enemy were within two hours' march and coming on."[ ] thirteen days before the christmas night that washington crossed the delaware and struck the british at trenton, the distressed american commander found that "our little handful is daily decreasing by sickness and other causes."[ ] and the very day before that brilliant exploit, washington was compelled to report that "but very few of the men have [re]enlisted" because of "their wishes to return home, the nonappointment of officers in some instances, the turning out of good and appointing of bad in others, and the incomplete or rather no arrangement of them, a work unhappily committed to the management of their states; nor have i the most distant prospect of retaining them ... notwithstanding the most pressing solicitations and the obvious necessity for it." washington informed reed that he was left with only "fourteen to fifteen hundred effective men. this handful and such militia as may choose to join me will then compose our army."[ ] such was american patriotic efficiency, as exhibited by "state sovereignty," the day before the dramatic crossing of the delaware. a month earlier the general of this assemblage of shreds and patches had been forced to beg the various states for militia in order to get in "a number of men, if possible, to keep up the appearance of our army."[ ] and he writes to his brother augustine of his grief and surprise to find "the different states so slow and inattentive.... in ten days from this date there will not be above two thousand men, if that number, of the fixed established regiments, ... to oppose howe's whole army."[ ] throughout the war, the neglect and ineffectiveness of the states, even more than the humiliating powerlessness of congress, time and again all but lost the american cause. the state militia came and went almost at will. "the impulse for going home was so irresistible, that it answered no purpose to oppose it. though i would not discharge them," testifies washington, "i have been obliged to acquiesce, and it affords one more melancholy proof, how delusive such dependencies [state controlled troops] are."[ ] "the dependence, which the congress have placed upon the militia," the distracted general complains to his brother, "has already greatly injured, and i fear will totally ruin our cause. being subject to no controul themselves, they introduce disorder among the troops, whom you have attempted to discipline, while the change in their living brings on sickness; this makes them impatient to get home, which spreads universally, and introduces abominable desertions. in short, it is not in the power of words to describe the task i have to act."[ ] nor was this the worst. washington thus pours out his soul to his nephew: "great bodies of militia in pay that never were in camp; ... immense quantities of provisions drawn by men that never rendered ... one hour's service ... every kind of military [discipline] destroyed by them.... they [the militia] come without any conveniences and soon return. i discharged a regiment the other day that had in it fourteen rank and file fit for duty only.... the subject ... is not a fit one to be publicly known or discussed.... i am wearied to death all day ... at the conduct of the militia, whose behavior and want of discipline has done great injury to the other troops, who never had officers, except in a few instances, worth the bread they eat."[ ] conditions did not improve in the following year, for we find washington again writing to his brother of "militia, who are here today and gone tomorrow--whose way, like the ways of [pr]ovidence, are almost inscrutable."[ ] baron von steuben testifies thus: "the eternal ebb and flow of men ... who went and came every day, rendered it impossible to have either a regiment or company complete.... i have seen a regiment consisting of _thirty men_ and a company of _one corporal_."[ ] even thomas paine, the arch-enemy of anything resembling a regular or "standing" army, finally declared that militia "will not do for a long campaign."[ ] marshall thus describes the predicament in which washington was placed by the inconstancy of this will-o'-the-wisp soldiery: "he was often abandoned by bodies of militia, before their places were filled by others.... the soldiers carried off arms and blankets."[ ] bad as the militia were,[ ] the states did not keep up even this happy-go-lucky branch of the army. "it is a matter of astonishment," savagely wrote washington to the president of pennsylvania, two months before valley forge, "to every part of the continent, to hear that pennsylvania, the most opulent and populous of all the states, has but twelve hundred militia in the field, at a time when the enemy are endeavoring to make themselves completely masters of, and to fix their winter quarters in, her capital."[ ] even in the continental line, it appears, pennsylvania's quota had "never been above one third full; and now many of them are far below even that."[ ] washington's wrath at pennsylvania fairly blazed at this time, and the next day he wrote to augustine washington that "this state acts most infamously, the people of it, i mean, as we derive little or no assistance from them.... they are in a manner, totally disaffected or in a kind of lethargy."[ ] the head of the american forces was not the only patriot officer to complain. "the pennsylvania associators [militia] ... are deserting ... notwithstanding the most spirited exertions of their officers," reported general livingston in the midsummer of .[ ] general lincoln and the massachusetts committee tried hard to keep the militia of the bay state from going home; but, moaned lee, "whether they will succeed, heaven only knows."[ ] general sullivan determined to quit the service because of abuse and ill-treatment.[ ] for the same reason schuyler proposed to resign.[ ] these were not examples of pique; they denoted a general sentiment among officers who, in addition to their sufferings, beheld their future through none too darkened glasses. they "not only have the mortification to see every thing live except themselves," wrote one minor officer in , "but they see their private fortune wasting away to make fat those very miscreants [speculators] ... they see their country ... refuse to make any future provision for them, or even to give them the necessary supplies."[ ] thousands of the continentals were often practically naked; chastellux found several hundred in an invalid camp, not because they were ill, but because "they were not covered even with rags."[ ] "our sick naked, and well naked, our unfortunate men in captivity naked"! wailed washington in .[ ] two days before christmas of that year he informed congress that, of the force then under his immediate command, nearly three thousand were "barefoot and otherwise naked."[ ] sickness was general and appalling. smallpox raged throughout the army even from the first.[ ] "the regimental surgeons are immediately to make returns ... of all the men in their regiments, who have not had the small pox,"[ ] read the orders of the day just after new year's day, in . six years after concord and lexington, three hundred american soldiers, in a body, wished to join the british.[ ] stern measures were taken to prevent desertion and dishonesty and even to enforce the most ordinary duties of soldiers. "in the afternoon three of our reg^t were flogged;-- of them received one hundred lashes apiece for attempting to desert; the other received for enlisting twice and taking two bounties,"[ ] wild coolly enters in his diary. and again: "this afternoon one of our men was hanged on the grand parade for attempting to desert to the enemy";[ ] and "at ock p.m. a soldier of col. gimatts battalion was hanged." sleeping on duty meant "twenty lashes on ... [the] bare back" of the careless sentry.[ ] a soldier convicted of "getting drunk & losing his arms" was "sentenc'd to receive lashes on his bare back, & pay for his arms lost."[ ] a man who, in action, "turns his back on the enemy" was ordered to be "instantly put ... to death" by the officers.[ ] at yorktown in may, , wayne ordered a platoon to fire on twelve soldiers who were persuading their comrades not to march; six were killed and one wounded, who was, by wayne's command, enforced by a cocked pistol, then finished with the bayonet thrust into the prostrate soldier by a comrade.[ ] such was the rough handling practiced in the scanty and ill-treated army of individualists which washington made shift to rally to the patriot colors.[ ] it was not an encouraging omen. but blacker still was the disorganizing effect of local control of the various "state lines" which the pompous authority of the newborn "sovereign and independent" commonwealths asserted.[ ] into this desperate confusion came the young virginia lieutenant. was this the manner of liberty? was this the way a people fighting for their freedom confronted their enemy? the dreams he had dreamed, the visions he had seen back in his virginia mountains were clad in glories as enchanting as the splendors of their tree-clad summits at break of day--dreams and visions for which strong men should be glad of the privilege of dying if thereby they might be won as realities for all the people. and indeed at this time, and in the even deadlier days that followed, young john marshall found strong men by his side willing to die and to go through worse than death to make their great dream come true. but why thus decrepit, the organization called the american army? why this want of food even for such of the soldiers as were willing and eager to fight for their country? why this scanty supply of arms? why this avoidable sickness, this needless suffering, this frightful waste? what was the matter? something surely was at fault. it must be in the power that assumed to direct the patriot army. but whence came that power? from congress? no. congress had no power; after a while, it did not even have influence. from the states? yes; that was its source--there was plenty of power in the states. but what kind of power, and how displayed? one state did one thing; another state did another thing.[ ] one state clothed its troops well; another sent no supplies at all.[ ] one regiment of maryland militia had no shirts and the men wrapped blankets about their bare bodies.[ ] one day state troops would come into camp, and the next day leave. how could war be conducted, how could battles be fought and won, through such freakish, uncertain power as that? but how could this vaunted liberty, which orators had proclaimed and which lieutenant marshall himself had lauded to his frontier companions in arms, be achieved except by a well-organized army, equipped, supplied, and directed by a competent central government? this was the talk common among the soldiers of the continental establishment in which john marshall was a lieutenant. in less than two years after he entered the regular service, even officers, driven to madness and despair by the pusillanimous weakness of congress, openly denounced that body; and the soldiers themselves, who saw their wounds and sufferings coming to naught, cursed that sham and mockery which the jealousy and shallowness of state provincialism had set up in place of a national government.[ ] all through the latter half of , lieutenant marshall of the third virginia regiment marched, suffered, retreated and advanced, and performed his duties without complaint. he did more. at this time, when, to keep up the sinking spirits of the men was almost as important as was ammunition, young marshall was the soul of good humor and of cheer; and we shall find him in a few months heartening his starving and freezing comrades at valley forge with quip and jest, a center from which radiated good temper and a hopeful and happy warmth. when in camp marshall was always for some game or sport, which he played with infinite zest. he was the best quoit-thrower in the regiment. his long legs left the others behind in foot-races or jumping contests. so well did he perform his work, so highly did he impress his superior officers, that, early in december, , he was promoted to be captain-lieutenant, to rank from july , and transferred to the fifteenth virginia line.[ ] thus he missed the glory of being one of that immortal company which on christmas night, , crossed the delaware with washington and fell upon the british at trenton. his father, major thomas marshall, shared in that renown;[ ] but the days ahead held for john marshall his share of fighting in actual battle. sick, ill-fed, dirty, and ragged, but with a steady nucleus of regular troops as devoted to their great commander as they were disgusted with the hybrid arrangement between the states and congress, washington's army worried along. two months before the battle of the brandywine, the american general informed the committee of congress that "no army was ever worse supplied than ours ... our soldiers, the greatest part of last campaign, and the whole of this, have scarcely tasted any kind of vegetables; had but little salt and vinegar." he told of the "many putrid diseases incident to the army, and the lamentable mortality," which this neglect of soldiers in the field had caused. "soap," says he, "is another article in great demand," but not to be had. he adds, sarcastically: "a soldier's pay will not enable him to purchase [soap] by which his ... consequent dirtiness adds not a little to the disease of the army."[ ] such was the army of which john marshall was a part when it prepared to meet the well-fed, properly clad, adequately equipped british veterans under howe who had invaded pennsylvania. even with such a force washington felt it necessary to make an impression on disaffected[ ] philadelphia, and, for that purpose, marched through the city on his way to confront the enemy. for it was generally believed that the american army was as small in numbers[ ] as it was wretched in equipment. a parade of eleven thousand men[ ] through the tory-infested metropolis would, washington hoped, hearten patriot sympathizers and encourage congress. he took pains that his troops should make the best appearance possible. arms were scoured and the men wore sprigs of green in their headgear. among the orders for the march through the seat of government it was directed: "if any sold^r. shall dare to quit his ranks he shall receive lashes at the first halting place afterwards.... not a woman[ ] belonging to the army is to be seen with the troops on their march through the city."[ ] the americans soon came in contact with the enemy and harassed him as much as possible. many of washington's men had no guns. although fewer militia came to his aid than congress had called for, testifies marshall, yet "more appeared than could be armed. those nearest danger were, as usual, most slow in assembling."[ ] upon wayne's suggestion, washington formed "a corps of light infantry consisting of nine officers, eight sergeants, and a hundred rank and file, from each brigade" and placed them under the command of general maxwell who had acquired a reputation as a hard fighter.[ ] among these picked officers was captain-lieutenant john marshall. maxwell's command was thrown forward to iron hill. "a choice body of men" was detailed from this select light infantry and, during the night, was posted on the road along which it was believed one column of the british army would advance. the small body of americans had no artillery and its only purpose was to annoy the enemy and retard his progress. the british under cornwallis attacked as soon as they discovered maxwell's troops. the americans quickly were forced to retreat, having lost forty killed and wounded. only three of the british were killed and but nineteen were wounded.[ ] this action was the first engagement in which marshall took part after the battle of great bridge. it is important only as fixing the command to which he was assigned. marshall told justice story that he was in the iron hill fight;[ ] and it is certain, therefore, that he was in maxwell's light infantry and one of the little band picked from that body of choice troops, for the perilous and discouraging task of checking the oncoming british thousands. the american army retreated to the brandywine, where on the th of september washington stationed all his forces except the light infantry on the left of the river. the position was skillfully chosen, but vague and conflicting reports[ ] of the movement of the british finally resulted in american disaster. the light infantry was posted among the hills on the right of the stream along the road leading to chadd's ford, in order to skirmish with the british when they approached, and, if possible, prevent them from crossing the river. but the enemy, without much effort, drove the americans across the brandywine, neither side suffering much loss.[ ] washington now made his final dispositions for battle. the command to which marshall belonged, together with other detachments under the general direction of anthony wayne, were placed opposite the british at chadd's ford. small parties of selected men crossed over and attacked the british on the other side of the stream. in one of these skirmishes the americans "killed a british captain with ten or fifteen privates, drove them out of the wood and were on the point of taking a field piece." but large numbers of the enemy hurried forward and again the americans were thrown across the river. marshall was in this party.[ ] thomas marshall, now colonel,[ ] held the advanced position under sullivan at the right; and his regiment did the hardest fighting and suffered the heaviest losses on that unhappy day. when cornwallis, in greatly superior numbers, suddenly poured down upon sullivan's division, he all but surprised the continentals and drove most of them flying before him;[ ] but colonel marshall and his virginians refused to be stampeded. that regiment "maintained its position without losing an inch of ground until both its flanks were turned, its ammunition nearly expended, and more than half the officers and one third of the soldiers were killed and wounded."[ ] colonel marshall had two horses shot under him. but, cut to pieces as they were, no panic appeared in this superb virginia command and they "retired in good order."[ ] while thomas marshall and his third virginia line were thus checking cornwallis's assault on the right, the british charged, in dense masses, across the brandywine, at chadd's ford, upon wayne's division, to which captain-lieutenant john marshall had been assigned. the americans made a show of resistance, but, learning of the rout of their right wing, quickly gave way.[ ] "nearly six hundred british ... were killed or wounded; and the americans lost eleven pieces of artillery and above a thousand men, of whom the third part were prisoners," according to the british statement.[ ] and by their own account the americans lost three hundred killed, six hundred wounded, and between three and four hundred prisoners.[ ] both british and american narratives agree that the conduct of the continental troops at brandywine was most unequal in stanchness, discipline, and, courage. john marshall himself wrote: "as must ever be the case in new-raised armies, unused to danger and from which undeserving officers have not been expelled, their conduct was not uniform. some regiments, especially those which had served the preceding campaign, maintained their ground with the firmness and intrepidity of veterans, while others gave way as soon as they were pressed."[ ] but the inefficiency of the american equipment gave some excuse for the fright that seized upon so many of them. for, testifies marshall, "many of their muskets were scarcely fit for service; and being of unequal caliber, their cartridges could not be so well fitted, and consequently, their fire could not do as much execution as that of the enemy. this radical defect was felt in all the operations of the army."[ ] so ended the battle of the brandywine, the third formal armed conflict in which john marshall took part. he had been in skirmish after skirmish, and in all of them had shown the characteristic marshall coolness and courage, which both father and son exhibited in such striking fashion on this september day on the field where lafayette fell wounded, and where the patriot forces reeled back under the all but fatal blows of the well-directed british regiments.[ ] it is small wonder that the americans were beaten in the battle of the brandywine; indeed, the wonder is that the british did not follow up their victory and entirely wipe out the opposing patriots. but it is astonishing that the american army kept up heart. they were even "in good spirits" as washington got them in hand and directed their retreat.[ ] they were pretty well scattered, however, and many small parties and numerous stragglers were left behind. maxwell's men, among whom was john marshall, were stationed at chester as "a rallying point" for the fragments which otherwise would disperse or be captured. much maneuvering followed by both british and americans. at sight of a detachment of the enemy approaching wilmington, the delaware militia "dispersed themselves," says marshall.[ ] soon the two armies again faced one another. marshall thus describes the situation: "the advanced parties had met, and were beginning to skirmish, when they were separated by a heavy rain, which, becoming more and more violent, rendered the retreat of the americans a measure of absolute necessity."[ ] through a cold and blinding downpour, over roads deep with mud, captain-lieutenant marshall marched with his retreating comrades. all day they struggled forward, and nearly all night. they had no time to eat and little or no food, even if they had had the time. before the break of a gray, cold, rainy september dawn, a halt was called, and an examination made of arms and ammunition. "scarcely a musket in a regiment could be discharged," marshall records, "and scarcely one cartridge in a box was fit for use," although "forty rounds per man had just been drawn"--this because the cartridge boxes had been ill-made and of improper material. gun locks were loose, declares marshall, because flimsily put on; the muskets were scarcely better than clubs. hardly any of the soldiers had bayonets.[ ] "never" had the patriot army been "in such imminent peril," he asserts--and all because of the inefficiency or worse of the method of supplies. well might washington's dilapidated troops thank providence for the bitter weather that drenched through and through both officers and men and soaked their ammunition, for "the extreme severity of the weather had entirely stopped the british army."[ ] yet washington was determined to block the british march on philadelphia. he made shift to secure some fresh ammunition[ ] and twice moved his army to get in front of the enemy or, failing in that, "to keep pace with them."[ ] to check their too rapid advance washington detached the troops under wayne, among whom was john marshall.[ ] they found the "country was so extensively disaffected that sir william howe received accurate accounts of his [wayne's] position and of his force. major-general grey was detached to surprise him [wayne] and effectually accomplished his purpose." at eleven o'clock at night grey drove in wayne's pickets with charged bayonets, and in a desperate midnight encounter killed and wounded one hundred and fifty of his men.[ ] general smallwood, who was to have supported wayne, was less than a mile away, but his militia, who, writes marshall, "thought only of their own safety, having fallen in with a party returning from the pursuit of wayne, fled in confusion with the loss of only one man."[ ] another example, this, before john marshall's eyes, of the unreliability of state-controlled troops;[ ] one more paragraph in the chapter of fatal inefficiency of the so-called government of the so-called united states. day by day, week by week, month by month, year by year, these object lessons were witnessed by the young virginia officer. they made a lifelong impression upon him and had an immediate effect. more and more he came to depend on washington, as indeed the whole army did also, for all things which should have come from the government itself. once again the american commander sought to intercept the british, but they escaped "by a variety of perplexing maneuvers," writes washington, "thro' a country from which i could not derive the least intelligence (being to a man disaffected)" and "marched immediately toward philadelphia."[ ] for the moment washington could not follow, although, declares marshall, "public opinion" was demanding and congress insisting that one more blow be struck to save philadelphia.[ ] his forces were not yet united; his troops utterly exhausted. marching through heavy mud, wading streams, drenched by torrential rains, sleeping on the sodden ground "without tents ... without shoes or ... clothes ... without fire ... without food,"[ ] to use marshall's striking language, the americans were in no condition to fight the superior forces of the well-found british. "at least one thousand men are bare-footed and have performed the marches in that condition," washington informed the impatient congress.[ ] he did his utmost; that brilliant officer, alexander hamilton, was never so efficient; but nearly all that could be accomplished was to remove the military stores at philadelphia up the delaware farther from the approaching british, but also farther from the american army. philadelphia itself "seemed asleep, or dead, and the whole state scarce alive. maryland and delaware the same," wrote john adams in his diary.[ ] so the british occupied the capital, placing most of their forces about germantown. congress, frightened and complaining, fled to york. the members of that august body, even before the british drove them from their cozy quarters, felt that "the prospect is chilling on every side; gloomy, dark, melancholy and dispiriting."[ ] would washington never strike? their impatience was to be relieved. the american commander had, by some miracle, procured munitions and put the muskets of his troops in a sort of serviceable order; and he felt that a surprise upon germantown might succeed. he planned his attack admirably, as the british afterwards conceded.[ ] in the twilight of a chilling october day, washington gave orders to begin the advance. throughout the night the army marched, and in the early morning[ ] the three divisions into which the american force was divided threw themselves upon the british within brief intervals of time. all went well at first. within about half an hour after sullivan and wayne had engaged the british left wing, the american left wing, to which john marshall was now attached,[ ] attacked the front of the british right wing, driving that part of the enemy from the ground. with battle shouts marshall and his comrades under general woodford charged the retreating british. then it was that a small force of the enemy took possession of the chew house and poured a murderous hail of lead into the huzzaing american ranks. this saved the day for the royal force and turned an american victory into defeat.[ ] it was a dramatic struggle in which john marshall that day took part. fighting desperately beside them, he saw his comrades fall in heaps around him as they strove to take the fiercely defended stone house of the tory judge. a fog came up so thick that the various divisions could see but a little way before them. the dun smoke from burning hay and fields of stubble, to which the british had set fire, made thicker the murk until the americans fighting from three different points could not tell friend from foe.[ ] for a while their fire was directed only by the flash from what they thought must be the guns of the enemy.[ ] the rattle of musketry and roar of cannon was like "the crackling of thorns under a pot, and incessant peals of thunder," wrote an american officer in an attempt to describe the battle in a letter to his relatives at home.[ ] through it all, the americans kept up their cheering until, as they fought, the defeat was plain to the most audacious of them; and retreat, with which they had grown so familiar, once more began. for nine miles the british pursued them, the road stained with blood from the beaten patriots.[ ] nearly a thousand of washington's soldiers were killed or wounded, and over four hundred were made prisoners on that ill-fated day, while the british loss was less than half these numbers.[ ] two months of service followed, as hard as the many gone before with which fate had blackened the calendar of the patriot cause. washington was frantically urged to "storm" philadelphia: congress wished it; a "torrent of public opinion" demanded it; even some of washington's officers were carried off their feet and advised "the mad enterprise," to use marshall's warm description of the pressure upon his commander.[ ] the depreciation of the continental paper money, the increasing disaffection of the people, the desperate plight of american fortunes, were advanced as reasons for a "grand effort" to remedy the ruinous situation. washington was immovable, and his best officers sustained him. risking his army's destruction was not the way to stop depreciation of the currency, said washington; its value had fallen for want of taxes to sustain it and could be raised only by their levy.[ ] and "the corruption and defection of the people, and their unwillingness to serve in the army of the united states, were evils which would be very greatly increased by an unsuccessful attempt on philadelphia."[ ] so black grew american prospects that secret sympathizers with the british became open in their advocacy of the abandonment of the revolution. a philadelphia episcopal rector, who had been chaplain of congress, wrote washington that the patriot cause was lost and besought him to give up the struggle. "the most respectable characters" had abandoned the cause of independence, said duché. look at congress. its members were "obscure" and "distinguished for the weakness of their understandings and the violence of their tempers ... chosen by a little, low, faction.... tis you ... only that support them." and the army! "the whole world knows that its only existence depends on you." consider the situation: "your harbors are blocked up, your cities fall one after the other; fortress after fortress, battle after battle is lost.... how fruitless the expense of blood!" washington alone can end it. humanity calls upon him to do so; and if he heeds that call his character "will appear with lustre in the annals of history."[ ] deeply offended, washington sent the letter to congress, which, however, continued to find fault with him and to urge an attack upon the british in the capital. although washington refused to throw his worn and hungry troops upon the perfectly prepared and victorious enemy entrenched in philadelphia, he was eager to meet the british in the open field. but he must choose the place. so when, early in december, howe's army marched out of philadelphia the americans were ready. washington had taken a strong position on some hills toward the schuylkill not far from white marsh. after much maneuvering by the british and effective skirmishing by detachments of the patriots,[ ] the two armies came into close contact. not more than a mile away shone the scarlet uniforms of the royal troops. washington refused to be lured from his advantageous ground.[ ] apparently the british were about to attack and a decisive battle to be fought. after brandywine and germantown, another defeat would have been ruinous. washington personally animated his men. marshall, who witnessed it, thus describes the scene: "the american chief rode through every brigade of his army, delivering, in person, his orders respecting the manner of receiving the enemy, exhorting his troops to rely principally on the bayonet, and encouraging them by the steady firmness of his countenance, as well as by his words, to a vigorous performance of their duty."[ ] these words make one see, as one reads, the great virginian in his noblest aspect--calm in the face of possible disaster, his spirit burning brightest on the very fuel of danger itself, his clear mind unclouded by what was likely to befall. each division, each regiment, each company, was given plain and practical orders for the expected conflict. and we may be sure that each man, private as well as officer, took heart as he looked upon the giant figure and listened to the steady directions and undismayed encouragement of his chief. certain it is that john marshall so felt and thought. a rare picture, this, full of life and color, that permits us to behold the growth in the young soldier's soul of that faith in and devotion to george washington, seeds of which had been planted in his childhood days in the blue ridge home. finally the british, seeing the resolute front of the americans and already bleeding from the fierce thrusts of morgan's virginia riflemen, suddenly withdrew to philadelphia,[ ] and washington's army went into winter quarters on the hills of valley forge. footnotes: [ ] slaughter, - . this was "the first minute battalion raised within this commonwealth." (memorial of thomas marshall to the virginia legislature for military "emoluments"; ms. archives, va. st. lib.) appendix iv. [ ] washington to mason, april , ; _writings_: ford, ii, . [ ] meade, ii, . [ ] binney, in dillon, iii, . [ ] _ib._ [ ] statement of eye-witness. (binney, in dillon, iii, .) [ ] _ib._, . [ ] in all descriptions of marshall, it is stated that his eyes were black and brilliant. his portraits, however, show them as dark brown, but keen and piercing. [ ] binney, in dillon, iii, - . [ ] _ib._ [ ] binney, in dillon, iii, . [ ] not only do we find marshalls, father and sons, taking gallant part in the revolutionary war, but, thereafter, advocates of war with any country when the honor or interest of america was at stake. [ ] binney, in dillon, iii, . [ ] _infra_, chap. iv. [ ] slaughter, - . but binney's informant says that it was twenty miles from the court-house. (binney, in dillon, iii, .) [ ] slaughter, - ; and certificate of j. marshall in pension claim of william payne; mss. rev. war, s. f. no. - / , pension bureau. [ ] slaughter, - . [ ] _ib._ [ ] campbell, - . [ ] slaughter, - ; certificate of j. marshall in pension claim of david jameson; mss. rev. war, s. f. no. , pension bureau. [ ] only the tories and the disaffected were frightened by these back-countrymen. apparently slaughter took this for granted and failed to make the distinction. [ ] "the people hearing that we came from the backwoods, and seeing our savage-looking equipments, seemed as much afraid of us as if we had been indians," writes the chronicler of that march. but the people, it appears, soon got over their fright; for this frontier soldiery, as one of them relates, "took pride in demeaning ourselves as patriots and gentlemen, and the people soon treated us with respect and great kindness." (slaughter, - .) [ ] slaughter, - . [ ] _ib._ [ ] campbell, - ; eckenrode: _r. v._, , . [ ] burk, iv, ; and lossing, ii, - . [ ] marshall, i, ; and campbell, . [ ] marshall to samuel templeman, richmond, sept. , , supporting latter's claim for pension; mss. rev. war, s. f. no. , pension bureau. [ ] for the conduct of the men then in supreme authority in virginia see wirt, - ; and henry, i, - ; also, campbell, _et seq._; and see eckenrode: _r. v._, . [ ] marshall, i, ; and see eckenrode: _r. v._, chap. iii, for the best account that has been given of this important episode. dr. eckenrode's narrative is a complete statement, from original sources, of every phase of this initial armed conflict between the patriots and royalists in virginia. also see affidavit of marshall in pension claim of william payne, april , ; mss. rev. war, s. f. no. - / , pension bureau. [ ] affidavit of marshall in pension claim of william payne, april , : mss. rev. war, s. f. no. - / , pension bureau. [ ] memorial of thomas marshall. (_supra_, and appendix iv.) [ ] this uniform was rare; it is probable, however, that thomas marshall procured it for himself and son. he could afford it at that time, and he was a very proud man. [ ] chastellux found the army nearly disbanded from necessity in . (chastellux, translator's note to .) [ ] washington to president of congress, jan. , ; _writings_: ford, iii, - . [ ] washington to reed, feb. , ; _ib._, . [ ] washington to committee of safety of new york, april , ; _writings_: ford, iv, - . [ ] washington to president of congress, sept. , ; _ib._, . [ ] washington to president of congress, sept. , ; _ib._, . [ ] washington to major-general lee, dec. , ; _ib._, v, . [ ] general greene to governor cooke, dec. , ; _ib._, footnote to . [ ] washington to president of congress, dec. , ; _writings_: ford, v, . [ ] washington to president of congress, dec. , ; _ib._, - . while washington was desperately badly off, he exaggerates somewhat in this despondent report, as mr. ford's footnote (_ib._, ) shows. [ ] washington to president of congress, nov. , ; _ib._, . [ ] washington to john augustine washington, nov. , ; _writings_: ford, v, - . [ ] washington to president of congress, sept. , ; _ib._, iv, . [ ] washington to john augustine washington, sept. , ; _ib._, . [ ] washington to lund washington, sept. , ; _writings_: ford, iv, - . [ ] washington to john augustine washington, feb. , ; _ib._, v, . the militia officers were elected "without respect either to service or experience." (chastellux, .) [ ] kapp, . [ ] _the crisis_: paine; _writings_: conway, i, . [ ] marshall ( st ed.), iii, . [ ] the militia were worse than wasteful and unmanageable; they deserted by companies. (hatch, - .) [ ] washington to wharton, oct. , : _writings_: ford, vi, - . [ ] _ib._ [ ] washington to john augustine washington, oct. , ; _ib._, - . [ ] livingston to washington, aug. , ; _cor. rev._: sparks, i, . [ ] lee to washington, nov. , ; _ib._, . [ ] sullivan to washington, march , ; _ib._, - . [ ] schuyler to washington, sept. . ; _ib._, . [ ] smith to mchenry, dec. , ; steiner, . [ ] chastellux, ; and see moore's _diary_, i, - ; and _infra_, chap. iv. [ ] washington to livingston, dec. , ; _writings_: ford, vi, . [ ] washington to president of congress, dec. , ; _ib._, ; and see _ib._, . [ ] _pa. mag. hist. and biog._, - ( d series), vi, . most faces among the patriot troops were pitted with this plague. washington was deeply pockmarked. he had the smallpox in the barbadoes when he was nineteen years old. (sparks, .) [ ] weedon, jan. , , . [ ] hatch, ; and kapp, . [ ] _proc._, mass. hist. soc. ( d series), vi, . [ ] _ib._ entries of desertions and savage punishment are frequent in wild's _diary_; see p. as an example. also see moore's _diary_, i, . [ ] weedon, . [ ] _ib._, sept. , , . [ ] _ib._, sept. , , . and see sept. , p. , where officers as well as privates are ordered "instantly shot" if they are "so far lost to all shame as basely to quit their posts without orders, or shall skulk from danger or offer to retreat before orders." [ ] livingston to webb, may , ; _writings_: ford, ix, footnote to . [ ] one reason for the chaotic state of the army was the lack of trained officers and the ignorance of the majority of common soldiers in regard to the simplest elements of drill or discipline. many of the bearers of commissions knew little more than the men; and of such untrained officers there was an overabundance. (hatch, - .) to baron von steuben's training of privates as well as officers is due the chief credit for remedying this all but fatal defect. (kapp, - ; also _infra_, chap. iv.) [ ] for statement of conditions in the american army throughout the war see hatch; also, bolton. [ ] the states were childishly jealous of one another. their different laws on the subject of rank alone caused unbelievable confusion. (hatch, - . and see watson, , for local feeling, and inefficiency caused by the organization of the army into state lines.) [ ] hatch says that connecticut provided most bountifully for her men. (hatch, .) but chastellux found the pennsylvania line the best equipped; each pennsylvania regiment had even a band of music. (chastellux, .) [ ] "the only garment they possess is a blanket elegantly twined about them. you may judge, sir, how much this apparel graces their appearance in parade." (inspector fleury to von steuben, may , ; as quoted in hatch, .) [ ] diary of joseph clark; _proceedings_, n.j. hist. soc. ( st series), vii, . the states would give no revenue to the general government and the officers thought the country would go to pieces. (hatch, .) [ ] heitman, . [ ] binney, in dillon, iii, . [ ] washington to committee of congress, july , ; _writings_: ford, v, . [ ] washington to president of congress, aug. , ; _writings_: ford, vi, ; also see marshall ( st ed.), iii, . [ ] marshall ( st ed.), iii, . [ ] _ib._, . [ ] on this subject see waldo's poem, _hist. mag._, vii, ; and clark's diary, _proc._, n.j. hist. soc., vii, . [ ] weedon, aug. , , . [ ] marshall ( st ed.), iii, . [ ] _ib._, ; and see trevelyan, iv, . [ ] marshall ( st ed.), iii, - ; _ib._ ( d ed.), i, - ; washington to president of congress, sept. , ; _writings_: ford, vi, - . [ ] story, in dillon, iii, . [ ] washington to president of congress, sept , ; _writings_: ford, vi, . [ ] marshall ( st ed.), iii, ; _ib._ ( d ed.), i, . colonel harrison, washington's secretary, reported immediately to the president of congress that maxwell's men believed that they killed or wounded "at least three hundred" of the british. (harrison to president of congress, sept. , ; _writings_: ford, vi, footnote to .) [ ] marshall, i, . the fact that marshall places himself in this detachment, which was a part of maxwell's light infantry, together with his presence at iron hill, fixes his position in the battle of the brandywine and in the movements that immediately followed. it is reasonably certain that he was under maxwell until just before the battle of germantown. of this skirmish washington's optimistic and excited secretary wrote on the spot, that maxwell's men killed thirty men and one captain "left dead on the spot." (harrison to the president of congress, sept. , ; _writings_: ford, vi, footnote to .) [ ] thomas marshall was promoted to be lieutenant-colonel aug. , ; and colonel feb. , . (heitman, .) [ ] trevelyan, iv, . [ ] marshall, i, footnote to . [ ] _ib._ colonel thomas marshall's cool-headed and heroic conduct at this battle, which brought out in high lights his fine record as an officer, caused the virginia house of delegates to elect him colonel of the state regiment of artillery raised by that commonwealth three months later. the vote is significant; for, although there were three candidates, each a man of merit, and although thomas marshall himself was not an aspirant for the place, and, indeed, was at valley forge when the election occurred, twice as many votes were cast for him as for all the other candidates put together. four men were balloted for, thomas marshall receiving seventy-five votes and the other three candidates all together but thirty-six votes. (journal, h.b. (nov. , ), .) [ ] marshall, i, ; and trevelyan, iv, - . washington reported that wayne and maxwell's men retreated only "after a severe conflict." (washington to president of congress, sept. , ; _writings_: ford, vi, .) [ ] trevelyan, iv, . [ ] marshall, i, - . [ ] _ib._; and see irving, iii, - . [ ] marshall, i, - . [ ] four years afterward chastellux found that "most of the trees bear the mark of bullets or cannon shot." (chastellux, .) [ ] washington to president of congress, sept. , ; _writings_: ford, vi, . [ ] marshall ( st ed.), iii, , and see washington to president of congress, sept. , ; _writings_: ford, vi, . [ ] marshall, i, . [ ] marshall, i, . when their enlistments expired, the soldiers took the government's muskets and bayonets home with them. thus thousands of muskets and bayonets continually disappeared. (see kapp, .) [ ] marshall, i, - . [ ] _ib._ [ ] washington to president of congress, sept. , ; _writings_: ford, vi, - . [ ] this is an inference, but a fair one. maxwell was under wayne; and marshall was one of maxwell's light infantry of picked men. (_supra._) [ ] marshall, i, . "the british accounts represent the american loss to have been much larger. it probably amounted to at least three hundred men." (_ib._, footnote.) [ ] _ib._, and see _pa. mag. hist. and biog._, i, . [ ] marshall repeatedly expresses this thought in his entire account of the war. [ ] washington to president of congress, sept. , ; _writings_: ford, vi, . [ ] marshall, i, . [ ] _ib._ [ ] washington to president of congress, sept. , ; _writings_: ford, vi, . [ ] _works_: adams, ii, . [ ] _ib._ [ ] _pa. mag. hist. and biog._, xvi, _et seq._ [ ] american officer's description of the battle. (_ib._, xi, .) [ ] marshall, i, . [ ] _ib._, - . [ ] from an american officer's description, in _pa. mag. hist. and biog._, xi, . [ ] _ib._, - . [ ] _ib._ [ ] "the rebels carried off a large number of their wounded as we could see by the blood on the roads, on which we followed them so far [nine miles]." (british officer's account of battle; _pa. mag. hist. and biog._, xvi, _et seq._) [ ] marshall, i, - . [ ] _ib._, . [ ] _ib._, - . [ ] marshall ( st ed.), iii, . marshall omits this sentence in his second edition. but his revised account is severe enough. [ ] the reverend jacob duché, to washington, oct. , ; _cor. rev._: sparks, i, - . [ ] washington to president of congress, dec. , ; _writings_: ford, vi, - . [ ] clark's diary, _proc._, n.j. hist. soc. ( st series), vii, - . "it seems that the enemy had waited all this time before our lines to decoy us from the heights we possessed." (_ib._) [ ] marshall, i, . [ ] marshall, i, . chapter iv valley forge and after unless some great and capital change suddenly takes place ... this army must inevitably starve, dissolve, or disperse. (washington, dec. , .) john marshall was the best tempered man i ever knew. nothing discouraged, nothing disturbed him. (lieutenant slaughter, of marshall at valley forge.) gaunt and bitter swept down the winter of . but the season brought no lean months to the soldiers of king george, no aloes to the royal officers in fat and snug philadelphia.[ ] it was a period of rest and safety for the red-coated privates in the city, where, during the preceding year, liberty bell had sounded its clamorous defiance; a time of revelry and merry-making for the officers of the crown. gay days chased nights still gayer, and weeks of social frolic made the winter pass like the scenes of a warm and glowing play. for those who bore the king's commission there were balls at the city tavern, plays at the south-street theater; and many a charming flirtation made lively the passing months for the ladies of the capital, as well as for lieutenant and captain, major and colonel, of the invaders' army. and after the social festivities, there were, for the officers, carousals at the "bunch of grapes" and all night dinners at the "indian queen."[ ] "you can have no idea," wrote beautiful rebecca franks,--herself a keen tory,--to the wife of a patriot, "you can have no idea of the life of continued amusement i live in. i can scarce have a moment to myself. i spent tuesday evening at sir william howe's, where we had a concert and dance.... oh, how i wished mr. paca would let you come in for a week or two!... you'd have an opportunity of raking as much as you choose at plays, balls, concerts, and assemblies. i have been but three evenings alone since we moved to town."[ ] "my wife writes me," records a tory who was without and whose wife was within the quaker city's gates of felicity, "that everything is gay and happy [in philadelphia] and it is like to prove a frolicking winter."[ ] loyal to the colors of pleasure, society waged a triumphant campaign of brilliant amusement. the materials were there of wit and loveliness, of charm and manners. such women there were as peggy chew and rebecca franks, williamina bond and margaret shippen--afterwards the wife of benedict arnold and the probable cause of his fall;[ ] such men as banastre tarleton of the dragoons, twenty-three years old, handsome and accomplished; brilliant richard fitzpatrick of the guards; captain john andré, whose graces charmed all hearts.[ ] so lightly went the days and merrily the nights under the british flag in philadelphia during the winter of - . for the common soldiers there were the race-course and the cock-pit, warm quarters for their abodes, and the fatness of the land for their eating. beef in abundance, more cheese than could be used, wine enough and to spare, provisions of every kind, filled pantry and cellar. for miles around the farmers brought in supplies. the women came by night across fields and through woods with eggs, butter, vegetables, turkeys, chickens, and fresh meat.[ ] for most of the farmers of english descent in that section hated the war and were actively, though in furtive manner, tory. they not only supplied the british larder, but gave news of the condition and movements of the americans.[ ] not twenty miles away from these scenes of british plenty and content, of cheer and jollity, of wassail and song, rose the bleak hills and black ravines of valley forge, where washington's army had crawled some weeks after germantown. on the schuylkill heights and valleys, the desperate americans made an encampment which, says trevelyan, "bids fair to be the most celebrated in the world's history."[ ] the hills were wooded and the freezing soldiers were told off in parties of twelve to build huts in which to winter. it was more than a month before all these rude habitations were erected.[ ] while the huts were being built the naked or scarcely clad[ ] soldiers had to find what shelter they could. some slept in tents, but most of them lay down beneath the trees.[ ] for want of blankets, hundreds, had "to sit up all night by fires."[ ] after germantown washington's men had little to eat at any time. on december , "the last ration had been delivered and consumed."[ ] through treachery, cattle meant for the famishing patriots were driven into the already over-supplied philadelphia.[ ] the commissariat failed miserably, perhaps dishonestly, to relieve the desperate want. two days before christmas there was "not a single hoof of any kind to slaughter, and not more than twenty-five barrels of flour!"[ ] men died by the score from starvation.[ ] most of the time "fire cake" made of dirty, soggy dough, warmed over smoky fires, and washed down with polluted water was the only sustenance. sometimes, testifies marshall himself, soldiers and officers "were absolutely without food."[ ] on the way to valley forge, surgeon waldo writes: "i'm sick--eat nothing--no whiskey--no baggage--lord,--lord,--lord."[ ] of the camp itself and of the condition of the men, he chronicles: "poor food--hard lodging--cold weather--fatigue--nasty cloaths--nasty cookery--vomit half my time--smoak'd out of my senses--the devil's in it--i can't endure it--why are we sent here to starve and freeze--what sweet felicities have i left at home;--a charming wife--pretty children--good beds--good food--good cookery--all agreeable--all harmonious. here, all confusion--smoke--cold,--hunger & filthyness--a pox on my bad luck. here comes a bowl of beef soup,--full of burnt leaves and dirt, sickish enough to make a hector spue--away with it, boys--i'll live like the chameleon upon air."[ ] while in overfed and well-heated philadelphia officers and privates took the morning air to clear the brain from the night's pleasures, john marshall and his comrades at valley forge thus greeted one another: "good morning brother soldier (says one to another) how are you?--all wet, i thank'e, hope you are so--(says the other)."[ ] still, these empty, shrunken men managed to squeeze some fun out of it. when reveille sounded, the hoot of an owl would come from a hut door, to be answered by like hoots and the cawing of crows; but made articulate enough to carry in this guise the cry of "'no meat!--no meat!' the distant vales echo'd back the melancholy sound--'no meat!--no meat!'... what have you for our dinners, boys? [one man would cry to another] 'nothing but fire cake and water, sir.' at night--'gentlemen, the supper is ready.' what is your supper, lads? 'fire cake & water, sir.'" just before christmas surgeon waldo writes: "lay excessive cold & uncomfortable last night--my eyes are started out from their orbits like a rabbit's eyes, occasion'd by a great cold--and smoke. what have you got for breakfast, lads? 'fire cake and water, sir.' the lord send that our commissary of purchases may live on fire cake & water till their glutted gutts are turned to pasteboard." he admonishes: "ye who eat pumpkin pie and roast turkies--and yet curse fortune for using you ill--curse her no more--least she reduce you ... to a bit of fire cake & a draught of cold water, & in cold weather."[ ] heart-breaking and pitiful was the aspect of these soldiers of liberty. "there comes a soldier--his bare feet are seen thro' his worn out shoes--his legs nearly naked from the tatter'd remains of an only pair of stockings--his breeches not sufficient to cover his nakedness--his shirt hanging in strings--his hair dishevell'd--his face meagre--his whole appearance pictures a person foresaken & discouraged. he comes, and crys with an air of wretchedness & despair--i am sick--my feet lame--my legs are sore--my body cover'd with this tormenting itch--my cloaths are worn out--my constitution is broken--my former activity is exhausted by fatigue--hunger & cold!--i fail fast i shall soon be no more! and all the reward i shall get will be--'poor will is dead.'"[ ] on the day after christmas the soldiers waded through snow halfway to their knees. soon it was red from their bleeding feet.[ ] the cold stung like a whip. the huts were like "dungeons and ... full as noisome."[ ] tar, pitch, and powder had to be burned in them to drive away the awful stench.[ ] the horses "died by hundreds every week"; the soldiers, staggering with weakness as they were, hitched themselves to the wagons and did the necessary hauling.[ ] if a portion of earth was warmed by the fires or by their trampling feet, it froze again into ridges which cut like knives. often some of the few blankets in the army were torn into strips and wrapped around the naked feet of the soldiers only to be rent into shreds by the sharp ice under foot.[ ] sick men lay in filthy hovels covered only by their rags, dying and dead comrades crowded by their sides.[ ] as christmas approached, even washington became so disheartened that he feared that "this army must dissolve;"[ ] and the next day he again warned congress that, unless the commissary were quickly improved, "this army must inevitably ... starve, dissolve, or disperse."[ ] early in general varnum wrote general greene that "the situation of the camp is such that in all human probability the army must soon dissolve. our desertions are astonishingly great."[ ] "the army must dissolve!" "the army must dissolve!"--the repeated cry comes to us like the chant of a saga of doom. had the british attacked resolutely, the americans would have been shattered beyond hope of recovery.[ ] on february , , only five thousand and twelve men out of a total of more than seventeen thousand were capable of any kind of service: four thousand were unfit for duty because of nakedness.[ ] the patriot prisoners within the british lines were in even worse case, if we credit but half the accounts then current. "our brethren," records surgeon waldo in his diary, "who are unfortunately prisoners in philadelphia, meet with the most savage & inhumane treatments--that barbarians are capable of inflicting.... one of these poor unhappy men--drove to the last extreem by the rage of hunger--eat his own fingers up to the first joint from the hand, before he died. others eat the clay--the lime--the stones--of the prison walls. several who died in the yard had pieces of bark, wood,--clay & stones in their mouths--which the ravings of hunger had caused them to take in the last agonies of life."[ ] the moravians in bethlehem, some miles away from valley forge, were the only refuge of the stricken patriots. from the first these christian socialists were the good samaritans of that ghastly winter. this little colony of germans had been overrun with sick and wounded american soldiers. valley forge poured upon it a niagara of starvation, disease, and death. one building, scarcely large enough for two hundred and fifty beds, was packed with nearly a thousand sick and dying men. dysentery reduced burly strength to trembling weakness. a peculiar disease rotted blood and bones. many died on the same foul pallet before it could be changed. the beds were "heaps of polluted litter." of forty of john marshall's comrades from a virginia regiment, which was the "pride of the old dominion," only three came out alive.[ ] "a violent putrid fever," testifies marshall, "swept off much greater numbers than all the diseases of the camp."[ ] need, was there not, at valley forge for men of resolve so firm and disposition so sunny that they would not yield to the gloom of these indescribable months? need, was there not, among these men, for spirits so bright and high that they could penetrate even the death-stricken depression of this fetid camp with the glow of optimism and of hope? such characters were there, we find, and of these the most shining of all was john marshall of the virginia line.[ ] he was a very torch of warmth and encouragement, it appears; for in the journals and diaries left by those who lived through valley forge, the name of john marshall is singled out as conspicuous for these comforting qualities. "although," writes lieutenant philip slaughter, who, with the "two porterfields and johnson," was the messmate of john marshall, "they were reduced sometimes to a single shirt, having to wrap themselves in a blanket when that was washed"[ ] and "the snow was knee-deep all the winter and stained with blood from the naked feet of the soldiers,"[ ] yet "nothing discouraged, nothing disturbed" john marshall. "if he had only bread to eat," records his fellow officer, "it was just as well; if only meat it made no difference. if any of the officers murmured at their deprivations, he would shame them by good-natured raillery, or encourage them by his own exuberance of spirits. "he was an excellent companion, and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdote.... john marshall was the best tempered man i ever knew,"[ ] testifies his comrade and messmate. so, starving, freezing, half blind with smoke, thinly clad and almost shoeless, john marshall went through the century-long weeks of valley forge, poking fun wherever he found despondency, his drollery bringing laughter to cold-purpled lips, and, his light-hearted heroism shaming into erectness the bent backs of those from whom hope had fled. at one time it would be this prank; another time it would be a different expedient for diversion. by some miracle he got hold of a pair of silk stockings and at midnight made a great commotion because the leaves he had gathered to sleep on had caught fire and burned a hole in his grotesque finery.[ ] high spirits undismayed, intelligence shining like a lamp, common sense true as the surveyor's level--these were the qualities which at the famine camp at valley forge singled the boyish virginia officer out of all that company of gloom. just before the army went into winter quarters captain-lieutenant marshall was appointed "deputy judge advocate in the army of the united states,"[ ] and at the same time, by the same order, james monroe was appointed aide-de-camp to lord stirling, one of washington's generals.[ ] such was the confidence of his fellow officers and of the soldiers themselves in marshall's judgment and fairness that they would come to him with their disputes and abide by his decision; and these tasks, it seems, the young solomon took quite seriously. he heard both sides with utmost patience, and, having taken plenty of time to think it over, rendered his decision, giving the reasons therefor in writing.[ ] so just after he had turned his twenty-second year, we find john marshall already showing those qualities which so distinguished him in after life. valley forge was a better training for marshall's peculiar abilities than oxford or cambridge could have been. his superiority was apparent, even to casual observers, notwithstanding his merriment and waggishness. one of a party visiting valley forge said of the stripling virginia officer: "by his appearance then we supposed him about twenty-two or twenty-three years of age. even so early in life ... he appeared to us _primus inter pares_, for amidst the many commissioned officers he was discriminated for superior intelligence. our informant, colonel ball, of another regiment in the same line,[ ] represented him as a young man, not only brave, but signally intelligent."[ ] marshall's good humor withstood not only the horrors of that terrible winter, but also washington's iron military rule. the virginia lieutenant saw men beaten with a hundred stripes for attempting to desert. once a woman was given a hundred lashes and drummed out of the army. a lieutenant was dismissed from the service in disgrace for sleeping and eating with privates, and for buying a pair of shoes from a soldier.[ ] bitter penalties were inflicted on large numbers of civilians for trying to take flour, cattle, and other provisions to the british in philadelphia;[ ] a commissary was "mounted on a horse, back foremost, without a saddle, his coat turn'd wrong side out his hands tied behind him & drummed out of the army (never more to return) by all the drums in the division."[ ] what held the patriot forces together at this time? george washington, and he alone.[ ] had he died, or had he been seriously disabled, the revolution would have ended. had typhoid fever seized washington for a month, had any of those diseases, with which the army was plagued, confined him, the patriot standard would have fallen forever. washington was the soul of the american cause. washington was the government. washington was the revolution. the wise and learned of every land agree on this. professor channing sums it all up when he declares: "of all men in history, not one so answers our expectations as washington. into whatever part of his life the historian puts his probe, the result is always satisfactory."[ ] yet intrigue and calumny sought his ruin. from burgoyne's surrender on through the darkest days of valley forge, the conway cabal shot its filaments through congress, society, and even fastened upon the army itself. gates was its figurehead, conway its brain, wilkinson its tool, rush its amanuensis, and certain members of congress its accessories before the fact. the good sense and devotion of patrick henry, who promptly sent washington the anonymous letter which rush wrote to the virginia governor,[ ] prevented that shameful plot from driving washington out of the service of his country. washington had led his army to defeat after defeat while gates had gained a glorious victory; gates was the man for the hour--down, then, with the incompetent virginian, said the conspirators. the pennsylvania legislature, wroth that howe's army had not been beaten, but allowed to occupy the comfortable capital of the state, remonstrated to congress. that body, itself, was full of dissatisfaction with the commander-in-chief. why would he not oust the british from philadelphia? why had he allowed howe to escape when that general marched out to meet him? as the first step toward washington's downfall, congress created a new board of war, with gates as president; conway was made inspector-general.[ ] the conspirators and those whom their gossip could dupe lied about washington's motives. his abilities, it was said, were less than ordinary; and his private conduct, went the stealthy whisper, was so bad as to prove the hypocrisy of his deportment.[ ] nor were washington's generals spared. greene was a sycophant, said these assassins of character; sullivan a braggart; stirling "a lazy, ignorant drunkard." these poisoners of reputation declared that general knox and alexander hamilton were "paltry satellites" of washington and flatterers of his vanity.[ ] so cunning, subtle, and persistent were these sappers and miners of reputation that even the timely action of patrick henry in sending washington rush's unsigned attack might not have prevented the great american's overthrow; for envy of washington's strength, suspicion of his motives, distrust of his abilities, had made some impression even on men like john adams.[ ] the great american bore himself with dignity, going hardly further than to let his enemies know that he was aware of their machinations.[ ] at last, however, he lashed out at congress. let that body look to the provisioning of the army if it expected the soldiers to fight. the troops had no food, no clothing. the quartermaster-general had not been heard from for five months. did his critics think "the soldiers were made of stocks and stones?" did they think an active winter campaign over three states with starving naked troops "so easy and practicable a business? i can assure those gentlemen," writes washington, "that it is a much easier and less distressing thing to draw remonstrances in a comfortable room by a good fireside, than to occupy a cold, bleak hill, and sleep under frost and snow, without clothes or blankets.... i have exposed myself to detraction and calumny" because "i am obliged to conceal the true state of the army from public view.... no day nor scarce an hour passes without" an officer tendering his resignation.[ ] washington was saved finally by the instinctive faith which that part of the common people who still supported the revolution had in their great leader, and by his soldiers' stanch devotion, which defeat after defeat, retreat hard upon the heels of preceding retreat, hunger and nakedness, wounds and sickness could not shake. "see the poor soldier," wrote surgeon waldo at valley forge. "he labours thro' the mud & cold with a song in his mouth, extolling war & washington."[ ] congress soon became insignificant in numbers, only ten or twelve members attending, and these doing business or idling as suited their whim.[ ] about the only thing they did was to demand that washington strike philadelphia and restore the members of this mimetic government to their soft, warm nests. higher and yet more lofty in the esteem of his officers and men rose their general. especially was this true of john marshall for reasons already given, which ran back into his childhood. in vain washington implored the various states to strengthen congress by sending their best men to this central body. such able men as had not taken up arms for their country refused to serve in congress. nearly every such man "was absorbed in provincial politics, to the exclusion of any keen and intelligent interest in the central government of his nation."[ ] amidst the falling snow at valley forge, washington thus appealed to colonel harrison in virginia: "america never stood in more eminent need of the wise, patriotic, and spirited exertions of her sons than at this period.... the states, separately, are too much engaged in their local concerns.... the states ... have very inadequate ideas of the present danger."[ ] the letter could not be sent from that encampment of ice and death for nearly two weeks; and the harassed commander added a postscript of passionate appeal declaring that "our affairs are in a more distressed, ruinous, and deplorable condition than they have been in since the commencement of the war."[ ] "you are beseeched most earnestly, my dear col^o harrison," pleaded washington, "to exert yourself in endeavoring to rescue your country by ... sending your best and ablest men to congress--these characters must not slumber nor sleep at home in such times of pressing danger--they must not content themselves in the enjoyment of places of honor or profit in their country [virginia][ ] while the common interests of america are mouldering and sinking into irretrievable ... ruin, in which theirs also must ultimately be involved."[ ] with such men, washington asserted, "party disputes and personal quarrels are the great business of the day, whilst the momentous concerns of an empire [america][ ] ... are but secondary considerations." therefore, writes washington, in angry exasperation, "in the present situation of things, i cannot help asking--where is mason--wythe--jefferson?"[ ] "where is jefferson?" wrote washington in america's darkest hour, when the army was hardly more than an array of ragged and shoeless skeletons, and when congress was so weak in numbers and ability that it had become a thing of contempt. is it not probable that the same question was asked by the shivering soldiers and officers of the continental army, as they sat about the smoking fires of their noisome huts sinking their chattering teeth into their "fire cake" and swallowing their brackish water? if washington would so write, is it not likely that the men would so talk? for was not jefferson the penman who had inscribed the declaration of independence, for which they were fighting, suffering, dying? among the virginians especially there must have been grave questionings. just as to john marshall's army experience the roots of the greatest of his constitutional opinions may clearly be traced, so the beginnings of his personal estimate of thomas jefferson may be as plainly found in their relative situations and conduct during the same period. john marshall was only a few days beyond his twentieth year when, with his culpeper minute men, he fought the british at great bridge. thomas jefferson at that time was thirty-two years old; but the prospect of battle on virginia's soil did not attract him. at valley forge, john marshall had just entered on his twenty-third year, and thomas jefferson, thirty-five years old, was neither in the army nor in congress. marshall had no fortune; jefferson was rich.[ ] so, therefore, when as reserved a man as washington had finally and with great effort trained himself to be, asked in writing, "where is jefferson?" is it not a reasonable inference that the virginia officers in the familiar talk of comrades, spoke of jefferson in terms less mild? and, indeed, where was thomas jefferson? after serving in congress, he refused point-blank to serve there again and resigned the seat to which he had been reëlected. "the situation of my domestic affairs renders it indispensably necessary that i should solicit the substitution of some other person," was the only excuse jefferson then gave.[ ] he wanted to go to the state legislature instead, and to the state legislature he went. his "domestic affairs" did not prevent that. in his autobiography, written forty-four years afterward ( ), jefferson declares that he resigned from congress and went to the state legislature because "our [state] legislation under the regal government had many very vicious points which urgently required reformation and i thought i could be of more use in forwarding that work."[ ] so while the british revels were going on in philadelphia and the horrors of valley forge appeared to be bringing an everlasting night upon american liberty, and when the desperation of the patriot cause wrung from the exasperated washington his appeal that virginia's ablest men should strengthen the feeble and tottering congress, jefferson was in the state legislature. but he was not there merely enjoying office and exclusively engaged in party politics as washington more than intimates. he was starting such vital reforms as the abolition of entails, the revision of the criminal code, the establishment of a free school system, the laying of the legal foundations of religious freedom.[ ] in short, jefferson was sowing the seeds of liberalism in virginia. but it is only human nature that breasts bearing the storm of war should not have thrilled in admiration of this civil husbandry. it was but natural that the benumbed men at valley forge should think the season early for the planting of state reforms, however needful, when the very ground of american independence was cold and still freezing with patriot misfortune and british success. virginia's legislature might pass all the so-called laws it liked; the triumph of the british arms would wipe every one of them from the statute books. how futile, until america was free, must all this bill-drafting and reforming have appeared to the hard-driven men on the schuylkill's arctic hills! "here are we," we can hear them say, "in worse case than most armies have been in the whole history of the world; here are we at valley forge offering our lives, wrecking our health, losing the little store we have saved up, and doing it gladly for the common american cause; and there, in safe and comfortable williamsburg or at sumptuous monticello, is the man who wrote our declaration of independence, never venturing within the sound of cannon or smell of powder and even refusing to go to congress." the world knows now that jefferson was not to be blamed. he was not a man of arms, dreaded the duties of a soldier, had no stomach for physical combat.[ ] he was a philosopher, not a warrior. he loved to write theories into laws that correct civil abuses by wholesale, and to promote the common good by sweeping statutes. also, he was a born politician, skillful and adroit in party management above any man in our history.[ ] but as a man of action in rough weather, as an executive in stern times, he himself admitted his deficiency.[ ] so we know to-day and better understand this great reformer, whose devotion to human rights has made men tolerant of his grave personal shortcomings. nothing of this, however, could have occurred to the starving, shivering patriot soldiers in their awful plight at valley forge. winning the war was their only thought, as always is the soldier's way. early in april, , when, but for the victory at saratoga, the revolution seemed well-nigh hopeless to all but the stoutest hearts, an old and valued english friend begged washington to give up the apparently doomed american cause. the reverend andrew burnaby appealed to him for american and british reunion. "must the parent and the child be forever at variance? and can either of them be happy, independent of the other?" the interests of the two countries are the same; "united they will constitute the fairest and happiest state in the world; divided they will be quite the reverse. it is not even possible that america should be happy, unconnected with great britain." in case america should win, the states will fall asunder from civil discord. the french, "that false and treacherous people," will desert the americans. great britain and america have "the same interest, the same lineage, the same language, the same liberty, the same religion, connecting them." everybody in england wants reunion; even the government is anxious to "rectify ... errors and misunderstandings." it is time to "heal the wounds on both sides." washington can achieve this "divine purpose" and "thereby acquire more glory and confer more real and lasting service, both to your own country and to mankind in general than ... ever yet happened to the lot of any one man."[ ] this subtle plea, designed to prepare the way for the british "commission of conciliation," neither flattered nor tempted washington. it insulted him. he acted more vigorously than ever; and, soon afterward, his answer was delivered with cannon and bayonet on the field of monmouth.[ ] when the winter had passed, washington once more appealed to congress to cease its bickering and indecision. that body was jealous of the army, he declared, whereas, said he, "we should all be considered, congress and army, as one people, embarked in one cause, in one interest; acting on the same principle, and to the same end"--a philosophy which a young virginia officer was then absorbing and continued to absorb, until it became the ruling force in his life. "no history extant," continues washington, "can furnish an instance of an army's suffering such uncommon hardships ... and bearing them with the same patience and fortitude. to see men without clothes to cover their nakedness, without blankets to lie on, without shoes, by which their marches might be traced by the blood from their feet, and almost as often without provisions as with them, marching through the frost and snow, and at christmas taking up their winter quarters within a day's march of the enemy, without a house or hut to cover them, 'till they could be built, and submitting to it without a murmur, is proof of patience and obedience which, in my opinion can scarce be paralleled."[ ] further shaming congress into action, washington says that "with us ... the officer ... must break in upon his private fortune for present support, without a prospect of future relief"; while, with the british, company commands "are esteemed so honorable and so valuable that they have sold of late from fifteen to twenty-two hundred pounds sterling and ... four thousand guineas have been given for a troop of dragoons."[ ] finally came the spring of . the spirits of the men rose with the budding of the trees. games and sport alternated with drill and policing of the camp. the officers made matches for quoits, running, and jumping. captain-lieutenant marshall was the best athlete in his regiment. he could vault over a pole "laid on the heads of two men as high as himself." a supply from home had reached him at last, it appears, and in it were socks. so sometimes marshall ran races in his stocking feet. in knitting this foot apparel, his mother had made the heels of white yarn, which showed as he ran. thus came his soldier nickname of "silver heels."[ ] as spring advanced, the troops recovered their strength and, finally, were ready and eager again to meet the enemy. washington had persuaded general greene to accept the vital office of quartermaster-general; and food, clothing, and munitions had somewhat relieved the situation.[ ] baron von steuben had wrought wonders in the drill and discipline of the men and in the officers' knowledge of their technical duties.[ ] "i should do injustice if i were to be longer silent with regard to the merits of the baron de [von] steuben" washington told congress, in hearty appreciation of the prussian general's services.[ ] another event of immense importance cheered the patriot forces and raised patriot hopes throughout america. the surrender of burgoyne had encouraged the french statesmen to attempt the injury of england by helping the revolting colonies. on may , , the treaty of alliance with louis xvi was laid before congress.[ ] the miseries of the past winter were forgotten by the army at valley forge in the joy over the french monarch's open championship of the american cause and his attack upon the british.[ ] for it meant trained troops, ships of war, munitions, and money. it meant more--it signified, in the end, war by france upon england. the hills of valley forge were vocal with huzzas and the roar of cannon. songs filled the air. the army paraded. sermons were preached. the rebound went to heights of enthusiasm equaling the former depths of despair.[ ] marshall, we may be sure, joined with his characteristic zest in the patriots' revel of happiness. washington alone had misgivings. he feared that, because of the french alliance, congress and the states would conclude that "we have nothing more to do" and so "relapse into a state of supineness and perfect security."[ ] precisely this occurred. soon, however, other inspiriting tidings came--the british, it was said, were about to quit philadelphia. the gayety in that city had continued throughout the winter, and just before the evacuation, reached its climax in a festival of almost unbelievable opulence and splendor. processions of flower-decked boats, choruses, spectacles, and parades crowded the day; dancing and music came with sunset, and at midnight, lighted by hundreds of wax candles, twelve hundred people sat down to a dinner of oriental luxury served by negroes clad in the rich costumes of the east "with silver collars and bracelets."[ ] when, on june , the royal forces abandoned the city, the americans were quick in pursuit. on june , a day of blistering heat, the battle of monmouth was fought. that scorching sunday "was long remembered all over the united states as the most sultry day which had ever been endured since mankind learned to read the thermometer."[ ] it must have been very hot indeed, for marshall himself speaks of "the intense heat";[ ] and he disliked extreme terms. marshall was one of the advance guard[ ] under wayne, with lee in command of the division. in a previous council of war most of the higher officers were decidedly against risking the action; but washington overruled them and ordered lee to attack the british force "the moment it should move from its ground."[ ] the commander-in-chief, with the main body of american troops, was to come to lee's support. it is unnecessary to go over the details of lee's unhappy blunder, his retreat, washington's berserker rage and stinging rebuke on the battlefield in sight and hearing of officer and private, the turning of the rout into attack, and attack into victory by the sheer masterfulness of the mighty virginian. from ten o'clock until nightfall the conflict raged, the americans generally successful. the overpowering sun made the action all but insufferable. many died from the effects of the furnace-like heat. the fighting was heavy and often hand to hand. throughout the day washington was the very soul of battle. his wrath at lee's retreat unleashed the lion in him. he rode among the troops inspiring, calming, strengthening, steadying. perhaps at no time in his life, except at braddock's defeat, was his peculiar combination of cool-headed generalship and hot-blooded love of combat so manifest in a personal way as on this blazing june day at monmouth. "never," testifies lafayette, who commanded part of the advance and fought through the whole battle, "was general washington greater in war than in this action. his presence stopped the retreat. his dispositions fixed the victory. his fine appearance on horseback, his calm courage, roused by the animation produced by the vexation of the morning, gave him the air best calculated to excite enthusiasm."[ ] when washington was preparing the final stroke, darkness fell. the exhausted americans, their clothing drenched with sweat, slept on their arms upon the field of battle, their general-in-chief himself lying on the ground among the living, the wounded, and the dead. somewhere on that hard-fought ground, captain-lieutenant john marshall stretched himself by his comrades. washington was determined to press the attack at break of day. but at midnight the british stole away so silently that the americans did not hear a sound from their retreat.[ ] the americans lost eight officers and sixty-one privates killed, one hundred and sixty wounded, and one hundred and thirty missing. the british left more than two hundred and fifty dead upon the field.[ ] upon charles lee most accounts of the battle of monmouth have placed the brand of infamy. but john marshall did not condemn lee utterly. there were, it appears, two sides of the business--the difficulty of the ground, the mistake made by scott, a reinforcement of the british rear, and other incidents.[ ] these appealed even to washington when the calm of judgment returned to him after the battle was fought and his blazing wrath had cooled; and had lee not sent insulting letters to the commander-in-chief, it is probable that no further action would have been taken.[ ] marshall had been in the fight from first to last; he had retreated unwillingly with the other five thousand men whom lee commanded; he was a fighting man, always eager for the shock of arms; he cherished a devotion to washington which was the ruling attachment of his life--nevertheless, marshall felt that more was made of lee's misconduct than the original offense deserved. writing as the chosen biographer of washington, marshall gives both sides of this controversy.[ ] this incident throws light upon marshall's temperament. other historians in their eulogy of washington, have lashed the memory of lee naked through the streets of public scorn. marshall refuses to join the chorus of denunciation. instead, he states the whole case with fairness.[ ] three days after monmouth, he was promoted to a full captaincy;[ ] and, as we have seen, he had been made deputy judge advocate at valley forge. holding these two offices, marshall continued his military service. the alliance with the french king, followed by the american success at monmouth, lulled the patriots into an unwarranted feeling of security. everybody seemed to think the war was over. congress became more lethargic than ever, the states more torpid and indifferent. the british had seized the two points commanding king's ferry on the north river, thus cutting the communication between the small american forces on opposite sides of the hudson.[ ] to restore this severed connection was important; and it was essential to arouse once more the declining interest of the people. washington resolved to take stony point, the then well-nigh impregnable position dominating king's ferry from the new jersey side. a body of light infantry was carefully selected from all ranks. it was the flower of washington's troops in health, stability, courage, and discipline. upon this "_élite_ of the army," says dawson, "the safety of the highlands and, indirectly, that of the cause of america, were dependent."[ ] this corps of picked soldiers was intended for quick and desperate enterprises of extra hazard. john marshall was one of those selected.[ ] their first notable task was to take stony point by assault. anthony wayne was placed in command. "i have much at heart," washington told wayne, in the capture of this position, "the importance of which ... is too obvious to need explanation."[ ] yet even to these men on missions of such moment, supplies came tardily and in scant quantities. wayne's "men were almost naked."[ ] finally, on june , , the time came for the storming of the fort. it was washed on three sides by the waters of the hudson and a marsh separated it from the solid land on the west. heavy guns were on the great hill of rock; lighter batteries were placed on its slope; two rows of abatis were farther down; and the british ships in the river commanded almost every point of attack.[ ] a party of wayne's men was detailed to remove obstructions, capture the sentries, and, in general, prepare the way for the assault by the first detachment of the light infantry, which was to advance with unloaded muskets, depending exclusively on the bayonet.[ ] the fort was taken by those assigned to make the initial attempt, colonel fleury being the first to enter the stronghold. below at the edge of the marsh waited the major part of wayne's little force, among whom was the future chief justice of the united states. if the state of wayne's nerves is an indication, we know how the young virginia captain felt, there in the midnight, holding himself in readiness for the order to advance. for early in the evening wayne thus wrote to his brother-in-law: "this will not reach your eye until the writer is no mor^e--the enclosed papers ... [will] enable [you] to defend the character and support the honor of the man who ... fell in defense of his country.... attend to the education of my little _son & daughter_--i fear that their tender mother will not survive this stroke."[ ] but the british were overcome more easily than anybody had thought possible,[ ] and, though wounded, wayne survived to give more displays of his genuine heroism, while providence spared john marshall for a no less gallant and immeasurably greater part in the making of the american nation.[ ] but the brilliant exploit went for nothing. the americans failed to take verplanck's point on the eastern bank of the river and the patriot forces were still separated. unable to spare enough men to garrison stony point permanently and since the ferry remained under the british guns, washington moved his army to the highlands. the british at once reoccupied the abandoned fort which wayne's men had just captured. a detail from the light infantry was placed under major henry lee of virginia, who was instructed to watch the main forces of the enemy. among lee's flying detachment was captain john marshall. for three weeks this scouting expedition kept moving among the ravines, hills, and marshes, always in close touch with the british. "at powles hook, a point of land on the west side of the hudson, immediately opposite the town of new york, penetrating deep into the river,"[ ] the enemy had erected works and garrisoned them with several hundred men. the british had made the hook an island by digging a deep ditch through which the waters of the river flowed; and otherwise had rendered their position secure. the daring lee resolved to surprise and capture the defending force, and washington, making sure of lines of retreat, approved the adventure. all night of august , , lee's men marched stealthily among the steep hills, passed the main body of the british army who were sleeping soundly; and at three o'clock in the morning crossed the ditch, entered the works, and carried away one hundred and fifty-nine prisoners, losing in the swift, silent effort only two killed and three wounded.[ ] this audacious feat fired the spirits of the patriot forces and covered the british with humiliation and chagrin. here, except for a small incident in arnold's invasion of virginia, john marshall's active participation in actual warfare ended. he was sent home[ ] because of the expiration of the term of enlistments of the regiments in which he had commanded and the excess of officers which this created.[ ] the revolution dragged along; misfortune and discouragement continued to beat upon the granite washington. the support of louis xvi was a staff upon which, substantial as it was, the people of the states leaned too heavily. their exertions relaxed, as we have seen; jefferson, patriot and reformer, but not efficient as an executive, was governor of virginia; and john marshall waited in vain for the new command which never appeared. on december , , jefferson received positive news of arnold's invasion.[ ] he had been warned by washington that just this event was likely to occur;[ ] but he had not summoned to the colors a single man of the militia, probably fifty thousand of whom were available,[ ] nor taken any measures to prepare for it. not until the hostile vessels entered virginia waters to disembark the invading force was general nelson sent to watch the enemy and call out the local militia of the adjacent vicinity; and not until news came that the british were on their way up the james river did the governor summon the militia of the neighboring counties. the royal soldiers reached richmond on january , , without opposition; there arnold burned some military factories and munitions, and returned down the river. john marshall hastened to the point of danger, and was one of the small american force that ambushed the british some distance below westover, but that scattered in panic at the first fire of the invaders.[ ] jefferson's conduct at this time and especially during the subsequent invasion of the state has given an unhappy and undeserved coloring to his personal character.[ ] it all but led to his impeachment by the virginia legislature;[ ] and to this day his biographers are needlessly explanatory and apologetic in regard to this phase of his career. these incidents confirmed the unfortunate impressions of jefferson which marshall and nearly all the virginia officers and soldiers had formed at valley forge. very few of them afterward changed their unfavorable opinion.[ ] it was his experience, then, on the march, in camp, and on the battlefield, that taught john marshall the primary lesson of the necessity of efficient government. also his military life developed his real temperament, which was essentially conservative. he had gone into the army, as he himself declared, with "wild and enthusiastic notions,"[ ] unlike those of the true marshall. it did not occur to this fighting virginia youth when, responding to patrick henry's call, he marched southward under the coiled-rattlesnake flag inscribed "don't tread on me," that anything was needed except to drive the oppressor into the sea. a glorious, vague "liberty" would do the rest, thought the stripling backwoods "shirtman," as indeed almost all of those who favored the patriot cause seemed to think.[ ] and when in blue and buff, as an officer of the continental army, he joined washington, the boyish virginia lieutenant was still a frontier individualist, though of the moderate type. but four years of fighting and suffering showed him that, without a strong and practical government, democracy cannot solve its giant problems and orderly liberty cannot live. the ramshackle revolutionary establishment was, he found, no government at all. hundreds of instances of its incredible dissensions and criminal inefficiency faced him throughout these four terrible years; and marshall has recorded many of them. not only did each state do as it pleased, as we have seen, but these pompous sovereignties actually interfered in direct and fatal fashion with the continental army itself. for example, when the soldiers of the line from one state happened to be in another state, the civil power of the latter often "attempted to interfere and to discharge them, notwithstanding the fact that they were not even citizens of that state."[ ] the mutiny of underfed, poorly clothed, unpaid troops, even in the state lines; the yielding of congress to their demands, which, though just in themselves, it was perilous to grant on compulsion;[ ] the discontent of the people caused by the forcible state seizure of supplies,--a seizure which a strong national government could not have surpassed in harshness,[ ]--were still other illustrations of the absolute need of an efficient central power. a few "judicious patriots" did urge the strengthening of national authority, but, writes marshall, they were helpless to "correct that fatal disposition of power [by states and congress] which had been made by enthusiasm uninstructed by experience."[ ] time and again marshall describes the utter absence of civil and military correlations and the fearful results he had felt and witnessed while a revolutionary officer. thus it is that, in his service as a soldier in the war for our independence, we find the fountain-head of john marshall's national thinking. and every succeeding circumstance of his swift-moving and dramatic life made plainer and clearer the lesson taught him on red battlefield and in fetid camp. no one can really understand marshall's part in the building of the american nation without going back to these sources. for, like all living things, marshall's constructive opinions were not made; they grew. they were not the exclusive result of reasoning; they were the fruit of an intense and vivid human experience working upon a mind and character naturally cautious, constructive, and inclined to order and authority. footnotes: [ ] it appears that, throughout the revolution, pennsylvania's metropolis was noted for its luxury. an american soldier wrote in : "philada. may answer very well for a man with his pockets well lined, whose pursuit is idleness and dissipation. but to us who are not in the first predicament, and who are not upon the latter errand, it is intolerable.... a morning visit, a dinner at o'clock--tea at or --supper and up all night is the round _die in diem_.... we have advanced as far in luxury in the third year of our indepeny. as the old musty republics of greece and rome did in twice as many hundreds." (tilghman to mchenry, jan. , ; steiner, .) [ ] trevelyan, iv, . [ ] _ib._, . [ ] _ib._ [ ] the influence of margaret shippen in causing arnold's treason is now questioned by some. (see avery, vi, - .) [ ] trevelyan, iv, - . [ ] _ib._, - . [ ] _ib._, - ; also marshall, i, . the german countrymen, however, were loyal to the patriot cause. the moravians at bethlehem, though their religion forbade them from bearing arms, in another way served as effectually as washington's soldiers. (see trevelyan, iv, - .) [ ] trevelyan, iv, . [ ] the huts were fourteen by sixteen feet, and twelve soldiers occupied each hut. (sparks, .) [ ] "the men were literally naked [feb. ] some of them in the fullest extent of the word." (von steuben, as quoted in kapp, .) [ ] _hist. mag._, v, . [ ] washington to president of congress, dec. , ; _writings_: ford, vi, . [ ] marshall, i, . [ ] _ib._, . [ ] washington to president of congress, dec. , ; _writings_: ford, vi, . [ ] "the poor soldiers were half naked, and had been half starved, having been compelled, for weeks, to subsist on simple flour alone and this too in a land almost literally flowing with milk and honey." (watson's description after visiting the camp, watson, .) [ ] marshall ( st ed.), iii, . [ ] _hist. mag._, v, . [ ] _ib._ [ ] _ib._, . [ ] _hist. mag._, v, - . [ ] _hist. mag._, v, - . [ ] trevelyan, iv, . [ ] _ib._ for putrid condition of the camp in march and april, , see weedon, - and - . [ ] trevelyan, iv, . [ ] _ib._ [ ] personal narrative; shreve, _mag. amer. hist._, sept., , . [ ] trevelyan, iv, . [ ] washington to president of congress, dec. , ; _writings_: ford, vi, . [ ] washington to president of congress, dec. , ; _ib._, . [ ] general varnum to general greene, feb. , , washington mss., lib. cong., no. . no wonder the desertions were so great. it was not only starvation and death but the hunger-crazed soldiers "had daily temptations thrown out to them of the most alluring nature," by the british and loyalists. (chastellux, translator's note to .) [ ] marshall, i, . [ ] _ib._ [ ] _hist. mag._, v, . this is, probably, an exaggeration. the british were extremely harsh, however, as is proved by the undenied testimony of eye-witnesses and admittedly authentic documentary evidence. for their treatment of american prisoners see dandridge: _american prisoners of the revolution_, a trustworthy compilation of sources. for other outrages see clark's diary, _proc._, n.j. hist. soc., vii, ; moore's _diary_, ii, . for the griswold affair see niles: _principles and acts of the revolution_, - . for transportation of captured americans to africa and asia see franklin's letter to lord stormont, april , ; franklin's _writings_: smyth, vii, - ; also moore's _diary_, i, . for the murder of jenny m'crea see marshall, i, , note , appendix, ; and moore's _diary_, i, ; see also miner: _history of wyoming_, - ; and british officer's letter to countess of ossory, sept. , ; _pa. mag. hist. and biog._, i, footnote to ; and jefferson to governor of detroit, july , ; _cal. va. st. prs._, i, . for general statement see marshall ( st ed.), iii, . these are but a few of the many similar sources that might be cited. [ ] trevelyan, iv, . [ ] marshall, i, . [ ] john marshall's father was also at valley forge during the first weeks of the encampment and was often field officer of the day. (weedon.) about the middle of january he left for virginia to take command of the newly raised state artillery regiment. (memorial of thomas marshall; _supra._) john marshall's oldest brother, thomas marshall, jr., seventeen years of age, was commissioned captain in a virginia state regiment at this time. (heitman, .) thus all the male members of the marshall family, old enough to bear arms, were officers in the war of the revolution. this important fact demonstrates the careful military training given his sons by thomas marshall before --a period when comparatively few believed that war was probable. [ ] this was the common lot; washington told congress that, of the thousands of his men at valley forge, "few men have more than one shirt, many only the moiety of one and some none at all." (washington to president of congress, dec. , ; _writings_: ford, vi, .) [ ] slaughter, - . [ ] howe, . [ ] slaughter, . [ ] weedon, ; also, heitman, . [ ] _ib._ [ ] description of marshall at valley forge by eye-witness, in _north american review_ ( ), xxvi, . [ ] ninth virginia. (heitman, .) [ ] _north american review_ ( ), xxvi, . [ ] weedon, feb. , , - . washington took the severest measures to keep officers from associating with private soldiers. [ ] _ib._, - . [ ] _ib._, jan. , ; . [ ] see washington's affecting appeal to the soldiers at valley forge to keep up their spirits and courage. (weedon, march , , - .) [ ] channing, ii, . [ ] see rush's anonymous letter to henry and the correspondence between henry and washington concerning the cabal. (henry, i, - .) [ ] marshall, i, . [ ] trevelyan, iv, . [ ] _ib._, - . [ ] "the idea that any one man alone can save us is too silly for any body but such weak men as duché to harbor for a moment." (adams to rush, feb. , ; _old family letters_, ; and see lodge: _washington_, i, ; also wallace, chap. ix.) [ ] sparks, ; and marshall, i, . [ ] washington to president of congress, dec. , ; _writings_: ford, vi, - . and see washington's comprehensive plans for the reorganization of the entire military service. (washington to committee of congress, jan. , ; _ib._, - .) [ ] _hist. mag._, v, . [ ] on april , , Ædanus burke of south carolina broke a quorum and defied congress. (secret journals of congress, april , , , , , i, ; and see hatch, .) [ ] trevelyan, iv, - . [ ] washington to harrison, dec. , ; _writings_: ford, vii, - . [ ] _ib._ [ ] at this period and long after a state was referred to as "the country." [ ] washington to harrison, dec. , ; _writings_: ford, vii, - . [ ] until after jefferson's presidency, our statesmen often spoke of our "empire." jefferson used the term frequently. [ ] washington to harrison, dec. , ; _writings_: ford, vii, - . [ ] "my estate is a large one ... to wit upwards of ten thousand acres of valuable land on the navigable parts of the james river and two hundred negroes and not a shilling out of it is or ever was under any incumbrance for debt." (jefferson to van staphorst and hubbard, feb. , ; _works_: ford, vi, .) at the time of valley forge jefferson's estate was much greater, for he had sold a great deal of land since . (see jefferson to lewis, july , ; _ib._, v, .) [ ] jefferson to pendleton, july, ; _ib._, ii, - . [ ] jefferson's _autobiography_; _works_: ford, i, . [ ] tucker, i, _et seq._; randall, i, _et seq._; _works_: ford, ii, , , . [ ] bloodshed, however, jefferson thought necessary. see _infra_, vol. ii, chap. i. [ ] see vol. ii of this work. [ ] jefferson's _autobiography_; _works_: ford, i, . [ ] burnaby to washington, april , ; _cor. rev._: sparks, ii, - . washington sent no written answer to burnaby. [ ] see _infra_. [ ] washington to banister, april , ; _writings_: ford, vi, - . in thus trying to arouse congress to a sense of duty, washington exaggerates the patience of his troops. they complained bitterly; many officers resigned and privates deserted in large numbers. (see _supra_.) [ ] _ib._ [ ] thayer, . for camp sports, see waldo's poem, _hist. mag._, vii, - . [ ] lossing, ii, , _et seq._ [ ] marshall, i, . and see hatch's clear account of the training given by this officer ( ). to the work of von steuben was due the excellent discipline under fire at monmouth. and see kapp, already cited; and bolton, . even belcher says that our debt to von steuben is as great as that to lafayette. (belcher, ii, .) [ ] washington to president of congress, april , ; _writings_: ford, vi, , and footnote to - . and see channing, iii, . [ ] see channing, iii, , ; and marshall, i, , . [ ] marshall, i, . [ ] sparks, ; and moore's _diary_, i, - . [ ] washington to mcdougall, may , ; _writings_: ford, vii, . washington was advised of the treaty with the french king before it was formally presented to congress. [ ] description by major andré, who took part in this amazing performance, reprinted in _american historical and literary curiosities_, following plate . and see moore's _diary_, ii, - . [ ] trevelyan, iv, . [ ] marshall, i, . [ ] marshall speaks of "one thousand select men" under wayne; maxwell's division was with wayne under lee; marshall was in the battle, and it seems certain that he was among wayne's "select men" as on former and later occasions. [ ] marshall, i, . [ ] lafayette to marshall; marshall, i, footnote to . [ ] marshall, i, - . [ ] for descriptions of the battle of monmouth see washington to president of congress, july , ; _writings_: ford, vii, - ; and to john augustine washington, july , ; _ib._, - . also marshall, i, - ; trevelyan, iv, - ; irving, iii, - ; sparks, - ; lossing, ii, - . [ ] marshall, i, - . [ ] _ib._, . [ ] _ib._, - . [ ] girardin follows marshall in his fair treatment of lee. (burk, iv, .) [ ] he was promoted july , . (heitman, .) [ ] the whole patriot army everywhere, except in the extreme south and west, now numbered only sixteen thousand men. (marshall, i, - .) [ ] the fullest and most accurate account of the capture of stony point, and conditions immediately preceding, is given by dawson in his _assault on stony point_. [ ] binney, in dillon, iii, - . the care in the selection of the various commands of "light infantry," so often used by washington after the first year of the war, is well illustrated by his orders in this case. "the officers commanding regiments," runs washington's orders, "will be particularly careful in the choice of the men.... the adjutant general is desired to pass the men ... under critical inspection, and return all who on any account shall appear unfit for this kind of service to their regiments, to be replaced by others whom he shall approve." (washington's order book, iii, - ; ms., lib. cong.) [ ] washington to wayne (private and confidential), july , ; dawson, - . [ ] dawson, . wayne's demand for sustenance and clothing, however, is amusing. "the light corps under my command," writes wayne, "... have had but two days fresh provision ... nor more than three days allowance of rum _in twelve days_, which article i borrowed from gen^l mcdougall with a promise to replace it. i owe him seventy five gallons--must therefore desire you to forward three hod^{ds} [hogsheads] of rum to this place with all possible dispatch together with a few fat sheep & ten head of good cattle." (wayne to issuing commissary, july , ; _ib._, - .) wayne wrote to washington concerning clothing: "i have an [word illegible] prejudice in favor of an elegant uniform & soldierly appearance--... i would much rathar risque my life and reputation at the head of the same men in an attack clothed & appointed as i could wish--with a single charge of ammunition--than to take them as they appear in common with sixty rounds of cartridges." (dawson, - .) washington wrote in reply: "i agree perfectly with you." (_ib._, .) [ ] marshall, i, . [ ] wayne's order of battle was as picturesque as it was specific. officer and private were directed "to fix a piece of white paper in the most conspicuous part of his hat or cap ... their arms unloaded placing their whole dependence on the bay^t.... if any soldier presumes to take his musket from his shoulder or attempt to fire or begin the battle until ordered by his proper officer he shall be instantly put to death by the officer next him.... should any soldier ... attempt to retreat one single foot or sculk in the face of danger, the officer next to him is immediately to put him to death." (_ib._, - .) [ ] wayne to delaney, july , ; dawson, - . [ ] the generous and even kindly treatment which the americans accorded the vanquished british is in striking contrast with the latter's treatment of americans under similar circumstances. when the fort was taken, the british cried, "_mercy, mercy, dear, dear americans_," and not a man was injured by the victors after he ceased to resist. (dawson, ; and marshall, i, .) [ ] the fort was captured so quickly that the detachment to which marshall was assigned had no opportunity to advance. [ ] marshall, i, . [ ] _ib._, - . [ ] the rolls show marshall in active service as captain until december , . (records, war dept.) he retired from the service february , . (heitman, .) [ ] binney, in dillon, iii, . there often were more officers of a state line than there were men to be officered; this was caused by expiring enlistments of regiments. [ ] tucker, i, . [ ] marshall, i, . [ ] _ib._, . [ ] marshall, i, ; binney, in dillon, iii, . [ ] even the frightened virginia women were ashamed. "such terror and confusion you have no idea of. governor, council, everybody scampering.... how dreadful the idea of an enemy passing through such a country as ours committing enormities that fill the mind with horror and returning exultantly without meeting one impediment to discourage them." (eliza ambler to mildred smith, ms. also _atlantic monthly_, lxxxiv, - .) miss ambler was amused, too, it seems. she humorously describes a boastful man's precipitate flight and adds: "but this is not more laughable than the accounts we have of our illustrious g-[overno]-r [jefferson] who, they say, took neither rest nor food for man or horse till he reached c-[arte]-r's mountain." (_ib._) this letter, as it appears in the _atlantic monthly_, differs slightly from the manuscript, which has been followed in this note. these letters were written while the laughing young tarleton was riding after the flying virginia government, of which eliza ambler's father was a part. they throw peculiar light on the opinions of marshall, who at that time was in love with this lady's sister, whom he married two years later. (see _infra_, chap. v.) [ ] an inquiry into jefferson's conduct was formally moved in the virginia legislature. but the matter was not pressed and the next year the legislature passed a resolution of thanks for jefferson's "impartial, upright, and attentive administration." (see eckenrode's thorough treatment of the subject in his _revolution in virginia_, chap. vii. and see tucker, i, - , for able defense of jefferson; and dodd, - ; also ambler, .) [ ] monroe, bland, and grayson are the only conspicuous exceptions. [ ] story, in dillon, iii, . [ ] this prevalent idea is well stated in one of mrs. carrington's unpublished letters. "what sacrifice would not an american, or virginian (even) at the earliest age have made for so desireable an end--young as i was [twelve years old when the war began] the word liberty so _continually_ sounding in my ears seemed to convey an idea of everything that was desirable on earth--true that in attaining it, i was to see every present comfort abandoned; a charming home where peace and prosperous fortune afforded all the elegancies of life, where nature and art united to render our residence delightful, where my ancestors had acquired wealth, and where my parents looked forward to days of ease and comfort, all this was to be given up; but in infancy the love of change is so predominant that we lose sight of consequences and are willing to relinquish present good for the sake of novelty, this was particularly the case with me." (mrs. carrington to her sister nancy, march, ; ms.; and see _infra_, chap. viii.) [ ] marshall, i, - . [ ] _ib._, - . [ ] _ib._, . [ ] marshall, i, . chapter v marriage and law beginnings he was always and under all circumstances an enthusiast in love. (mrs. carrington, of marshall's devotion to his wife.) it was upon a night of gentle gayety in the late winter or early spring of - that captain john marshall first met mary ambler. when he went back to virginia to take charge of troops yet to be raised, he visited his father, then commanding at the village of yorktown.[ ] more than a year had gone by since colonel marshall had left his son at valley forge. on this visit befell the most important circumstance of john marshall's private life. while he was waiting for his new command, an event came to pass which relieved his impatience to prolong still further his four years of active warfare and inspired him to improve this period of enforced absence from the front, by preparing himself for his chosen profession. jacquelin ambler had been one of yorktown's wealthiest men, and his house was called a "mansion." but the war had ruined him financially;[ ] and the year found the ambler family dwelling in humble quarters. "the small retired tenement" to which reduced circumstances forced him to take his invalid wife and young children stood next door to the headquarters of colonel thomas marshall. the ambler family was under colonel marshall's protection, for the father's duties as state councillor kept him at williamsburg.[ ] but the reverse of jacquelin ambler's fortunes did not make this little house less attractive than his "mansion" had been. the unusual charm of his daughters rendered that modest abode very popular. indeed, this quality of pleasing seems to have been a common possession of the ambler family, and has become historic. it was this very jacquelin ambler for whom rebecca burwell threw over thomas jefferson. this virginia belle was the love of jefferson's youth. she was the "campana in die,"[ ] "belinda," "adnileb," and "r. b." of jefferson's letters.[ ] but rebecca burwell preferred jacquelin ambler and became his wife.[ ] the ambler daughters inherited from both mother and father that beauty, grace, and goodness which gave them their extraordinary personal appeal. during john marshall's visit to his father the young ladies of yorktown saw to it that a "ball" was given. all the officers had been invited, of course; but none of them aroused such interest as did captain john marshall of the eleventh virginia regiment of the line. the fame of this young soldier, fresh from the war, was very bright in virginia. his name was on the lips of all the fair attendants of the dance. they were in a quiver of expectancy at the prospect of meeting the gallant captain who had fought under the great washington and who had proved himself a hero at brandywine and germantown, at valley forge and monmouth. years afterwards, eliza, the eldest of the ambler daughters, described the event in a letter full of color written to her sister. "we had been accustomed to hear him [marshall] spoken of by all as a very _paragon_," writes mrs. carrington, "we had often seen letters from him fraught with filial and paternal affection. the eldest of fifteen children, devoted from his earliest years to his younger brothers and sisters, he was almost idolized by them, and every line received from him was read with rapture."[ ] "our expectations were raised to the highest pitch," writes the elder sister, "and the little circle of york was on tiptoe on his arrival. our girls particularly were emulous who should be first introduced"; but mary ambler, then only fourteen years old, and very diffident and retiring, astonished her sister and friends by telling them that "we were giving ourselves useless trouble; for that she, for the first time, had made up her mind to go to the ball, though she had not even been at dancing school, and was resolved to set her cap at him and eclipse us all."[ ] great was their disappointment when finally captain marshall arrived. his ungainly dress, slouch hat, and rustic bearing instantly quenched their enthusiasm.[ ] they had looked forward to seeing a handsome, romantic figure, brilliantly appareled, and a master of all the pleasing graces; instead they beheld a tall, loose-jointed young man, thin to gauntness, whose clothes were hanging about him as if upon a rack, and whose manners were awkward and timid to the point of embarrassment. no game was he for cupid's bow, thought these belles of old yorktown. "i, expecting an adonis, lost all desire of becoming agreeable in his eyes when i beheld his awkward figure, unpolished manners, and total negligence of person";[ ] thus writes eliza ambler of the impression made upon her by the young soldier's disheveled aspect and unimpressive deportment. but mary ambler stuck to her purpose, and when john marshall was presented to her, both fell in love at first sight. thus began a lifelong romance which, in tenderness, exaltation, and constancy is unsurpassed in the chronicle of historic affections. it was no longer alone the veneration for a father that kept the son in yorktown. day followed day, and still the gallant captain tarried. the unfavorable first judgment gave way to appreciation. he soon became a favorite at every house in the village.[ ] his gift of popularity was as great, it seems, among women as among men; and at the domestic fireside as well as in the armed camp. everybody liked john marshall. there was a quality in him that inspired confidence. those who at first had been so disappointed in his dress and manners soon forgot both in his wholesome charm. they found him delightfully companionable.[ ] here was preëminently a social being, they discovered. he liked people, and wanted people to like him. he was full of fun and hearty laughter; and his rare good sense and sheer manliness furnished solid foundation to his lighter qualities. [illustration: page of a letter from john marshall to his wife describing their courtship dated at washington, february , (_facsimile_)] so every door in yorktown was thrown open to captain john marshall. but in jacquelin ambler's house was the lodestone which drew him. april had come and the time of blossoming. on mellow afternoons, or by candlelight when the sun had set, the young lover spent as much time as the proprieties would permit with mary ambler, telling her of the war, no doubt; and, as her sister informs us, reading poetry by the hour.[ ] through it all he made love as hard as he could. he wooed as ardently and steadily as he had fought.[ ] the young lover fascinated the entire ambler family. "under the slouched hat," testifies mary ambler's sister, "there beamed an eye that penetrated at one glance the inmost recesses of the human character; and beneath the slovenly garb there dwelt a heart complete with every virtue. from the moment he loved my sister he became truly a brother to me.... our whole family became attached to him, and though there was then no certainty of his becoming allied to us, we felt a love for him that can never cease.... there was no circumstance, however trivial, in which we were concerned, that was not his care." he would "read to us from the best authors, particularly the poets, with so much taste and feeling, and pathos too, as to give me an idea of their sublimity, which i should never have had an idea of. thus did he lose no opportunity of blending improvement with our amusements, and thereby gave us a taste for books which probably we might never otherwise have had."[ ] the time had come when john marshall must acquire a definite station in civil life. this was especially necessary if he was to take a wife; and married he would be, he had decided, whenever mary ambler should be old enough and would consent. he followed his parents' wishes[ ] and began his preparation for the bar. he told his sweetheart of his purpose, of course, and her family "learned [of it] with pleasure."[ ] william and mary college, "the only public seminary of learning in the state,"[ ] was only twelve miles from yorktown; and there the young officer attended the law lectures of george wythe for perhaps six weeks[ ]--a time so short that, in the opinion of the students, "those who finish this study [law] in a few months, either have strong natural parts or else they know little about it."[ ] recalling a criticism of one of marshall's "envious contemporaries" some years later, mrs. carrington says: "allusion was made to his short stay at william and mary, and that he could have gained little there."[ ] it is said also that marshall took a course in philosophy under president madison, then the head of the little college and afterwards bishop of virginia; but this is unlikely, for while the soldier-student took careful notes of wythe's lectures, there is not a word in his notebook[ ] concerning any other college activity. the faculty consisted of five professors.[ ] the college was all but deserted at that time and closed entirely the year after john marshall's flying attendance.[ ] although before the revolution "the necessary expence of each scholar _yearly_ ... [was] only £ currency,"[ ] one of marshall's fellow students testifies that: "the amazing depreciation of our currency has raised the price of every article so enormously that i despair'd of my father's ability to support me here another year.... board & entring under two professors amounts to ^{wt} of tobacco."[ ] the intercourse of students and faculty was extremely democratic. there was a "college table" at which the students took their meals. according to the college laws of that time, beer, toddy, and spirits and water might be served, if desired.[ ] the students were not required to wear either coats or shoes if the weather was warm.[ ] at a later period the students boarded at private houses in the town.[ ] jefferson, who, several years before marshall's short attendance, was a student at william and mary, describes the college and another public building as "rude, mis-shapen piles, which, but that they have roofs, would be taken for brick-kilns."[ ] chastellux, however, declares that "the beauty of the edifice is surpassed [only] by the richness of its library and that still farther, by the distinguished merit of several of the professors," and he describes the college as "a noble establishment ... which does honour to virginia."[ ] the youths attending william and mary during marshall's brief sojourn were disgusted by the indifference of the people of the vicinity toward the patriot cause. "the want of men, money, provisions, & still more of public virtue & patriotism is universal--a melancholy lethargick disposition pervades all ranks in this part of the country, they appear as if determined to struggle no more, but to 'stand still & see what the lord will do for them,'" wrote john brown in july, .[ ] mr. wythe, the professor of law, was the life of the little institution in this ebbing period of war-time. he established "a moot court, held monthly or oftener ... mr. wythe & the other professors sit as judges. our audience consists of the most respectable of the citizens, before whom we plead our causes, given out by mr. wythe lawyer like i assure you." the law professor also "form'd us into a legislative body, consisting of about members." wythe constituted himself speaker of these seedling lawmakers and took "all possible pains to instruct us in the rules of parliament." these nascent solons of old william and mary drew original bills, revised existing laws, debated, amended, and went through all the performances of a legislative body.[ ] the parent chapter of the phi beta kappa society had been instituted at the college; and to this marshall was immediately elected. "at a meeting of the society the of may, , capt. john marshall being recommended as a gentleman who would make a worthy member of this society was balloted for & received."[ ] this is an important date; for it fixes with reasonable certainty the time of marshall's entrance at william and mary. he was probably the oldest of all the students; his army service made him, by far, the most interesting and notable; his extraordinary social qualities never failed to render him popular. it is, therefore, certain that he was made a member of phi beta kappa without much delay. he probably entered college about may .[ ] at once we find the new member appointed on the society's debating team. two students were selected to "declaim" the question and two to "argue" it. "mr. cabell & mr. peyton short appointed to declaim the question whether any form of government is more favorable to our new virtue than the commonwealth. "mr. joseph cabell and mr. marshall to argue the same. an adjournment. william short president. "at a meeting in course saturday june y^e ^{rd}, , mr. president leaving y^e chair with mr. fitzhugh to y^e same. mr. w^m cabell according to order delivered his declamation on y^e question given out. mr. peyton short, being unprepared, was silent on y^e occasion. mr. marshall, a gentleman not immediately interested, argued y^e question."[ ] but it was not debating on which john marshall was intent, nor any other college duties. he had hard work, it appears, to keep his mind on the learned words that fell from the lips of mr. wythe; for on the inside cover and opposite page of the book in which he made notes of wythe's law lectures,[ ] we find in john marshall's handwriting the words, "miss maria ambler"; and again "miss m. ambler"; and still again, this time upside down, "miss m. ambler--j. marshall"; and "john marshall, miss polly am."; and "john, maria"; and "john marshall, miss maria"; and "molly ambler"; and below this once more, "miss m. ambler"; on the corner of the page where the notes of the first lecture are recorded is again inscribed in large, bold letters the magic word, "ambler."[ ] jacquelin ambler had been made treasurer of state, and, early in june, , the family removed from yorktown to richmond, stopping for a day or two in williamsburg. while there "a ball was ... given ... by certain gentlemen in compliment ... 'to the misses amblers.'" eliza ambler describes the incidents of this social event. the affair was "simple and frugal as to its viands," she writes, "but of the brilliancy of the company too much cannot be said; it consisted of more beauty and elegance than i had ever witnessed before.... i was transported with delight." yet she could not "treat ... the prime mover in this civility with common good manners.... his more successful friend marshall, was devoted to my sister."[ ] this "ball" ended john marshall's college studies; the lure of mary ambler was greater than that of learning to the none too studious captain. the abrupt ending[ ] of the notes he was making of mr. wythe's lectures, in the midst of the course, otherwise so inexplicable, was caused by her two days' sojourn in the college town. forthwith he followed to richmond, where, for two weeks he gayly played the part of the head of the family (acted "pa," as marshall quaintly expresses it), apparently in jacquelin ambler's absence.[ ] although he had scarcely begun his studies at william and mary; although his previous instruction by professional teachers was meager and fragmentary; and although his father could well afford the small expense of maintaining him at williamsburg long enough for him to secure at least a moderate education, john marshall never returned to college.[ ] no more lectures of professor wythe for the young lover. he would begin his professional career at once and make ready for the supreme event that filled all his thoughts. so while in richmond he secured a license to practice law. jefferson was then governor, and it was he who signed the license to the youth who was to become his greatest antagonist. marshall then went to fauquier county, and there, on august , , was admitted to the bar. "john marshall, gent., produced a license from his excellency the governor to practice law and took the oaths prescribed by act of assembly," runs the entry in the record.[ ] he waited for the recruiting of the new troops he was to command, and held himself in readiness to take the field, as indeed he rushed to do without orders when arnold's invasion came. but the new troops never were raised and marshall finally left the service. "i continued in the army until the year ," he tells us, "when, being without a command, i resigned my commission in the interval between the invasion of virginia by arnold and phillips."[ ] during this season of inaction he resolved to be inoculated against the smallpox. this was another effect which falling in love had on the young soldier; for he could, had he wished, have had this done more than once while with washington's army.[ ] he would now risk his health no longer. but the laws of virginia made the new method of treating smallpox almost impossible.[ ] so away on foot[ ] went john marshall to philadelphia to be made proof against this disfiguring malady. according to marshall's own account, he covered the ground at an amazing pace, averaging thirty-five miles a day; but when he arrived, so disreputable did he appear that the tavern refused to take him in.[ ] long-bearded and slovenly clothed, with battered hat and uncouth manners, he gave the unfavorable first impression which the same causes so often produced throughout his life. this is not to be wondered at, for, writing twenty years afterward, when marshall as chief justice was at the height of his career, his sister-in-law testifies that his "total negligence of person ... often produced a blush on her [marshall's wife's] cheek."[ ] but he finally secured lodgings, was inoculated, and, made secure from the attacks of the dreaded scourge, back he fared to virginia and mary ambler. and marshall made love as he made war, with all his might. a very hurricane of a lover he must have been; for many years afterward he declared to his wife's sister that "he looked with astonishment at the present race of lovers, so totally unlike what he had been himself."[ ] in a touching letter to his wife, written almost half a century later, marshall thus recalls the incidents of his courtship:-- "i begin with the ball at york, and with the dinner on the fish at your house the next day: i then retrace my visit to york, our splendid assembly at the palace[ ] in williamsburg, my visit to richmond where i acted pa for a fortnight, my return the ensuing fall and the very welcome reception you gave me on your arrival from dover, our little tiffs & makings up, my feelings while major dick[ ] was courting you, my trip to the cottage,[ ] the lock of hair, my visit again to richmond the ensuing fall, and all the thousand indescribable but deeply affecting instances of your affection or coldness which constituted for a time the happiness or misery of my life and will always be recollected with a degree of interest which can never be lost while recollection remains."[ ] when he left the army in , marshall, although a member of the bar, found no legal business to do.[ ] he probably alternated between the oak hill plantation in fauquier county, where his help was sadly needed, and richmond, where the supreme attraction drew him. thus another year wore on. in this interval john marshall engaged in politics, as was the custom of young gentlemen of standing and ambition; and in the fall of was elected to the house of delegates from fauquier county.[ ] this honor was a material help, not only in his career, but in his suit for the hand of mary ambler. also, membership in the legislature required him to be, where his heart was, in richmond, and not two months had john marshall been in the capital as a member of virginia's legislature when he was married. "in january [ d] ," writes marshall, "i intermarried with mary willis ambler, the second daughter of mr. jacquelin ambler, then treasurer of virginia, who was the third son of mr. richard ambler, a gentleman who had migrated from england, and settled at york town, in virginia."[ ] the ambler abode in richmond was not a romantic place for the wedding. the primitive town was so small that when the ambler family reached it eliza exclaimed, "_where_ we are to lay our weary heads heaven knows!" and she describes the house her father rented as "a little dwelling" so small that "our whole family can scarcely stand up altogether in it"; but jacquelin ambler took it because, poor as it was, it was "the only decent tenement on the hill."[ ] the elder ambler sister thus pictures the richmond of : "this little town is made up of scotch factors who inhabit small tenements scattered here and there from the river to the hill. some of them look, as colonel [thomas] marshall has observed, as if the poor caledonians had brought them over on their backs, the weakest of whom being glad enough to stop at the bottom of the hill, others a little stronger proceeding higher, whilst a few of the stoutest and the boldest reached the summit."[ ] eight years after the amblers moved to richmond, jefferson wrote: "the town below shockoe creek is so deserted you cannot get a person to live in a house there rent free."[ ] but mary's cousin, john ambler, who, at twenty-one years of age, found himself "one of the richest men in the state of virginia,"[ ] solved the difficulty by offering his country seat for the wedding.[ ] mary ambler was only seventeen when she became the young lawyer's bride,[ ] and john marshall was a little more than ten years older. after the bridegroom had paid the minister his fee, "he had but one solitary guinea left."[ ] this does not mean that john marshall was without resources, but it indicates the scarcity of ready money in virginia at the close of the war. indeed, marshall's father, while not yet the wealthy man he afterwards became,[ ] had, as we have seen, already acquired very considerable property. he owned at this time at least two thousand acres in fauquier county;[ ] and twenty-two negroes, nine of them tithable (sixteen years old), twelve horses, and twenty-two head of cattle.[ ] when john marshall married miss ambler, his father gave him one negro and three horses.[ ] the following year ( ) the tithable book shows but five tithable negroes, eight young negroes, eight horses, and eighteen head of cattle in thomas marshall's name. he evidently sold his other slaves and personal property or took them with him to kentucky. so it is likely that the slaves, horses, and cattle left behind were given to his son, together with a part of thomas marshall's fauquier county farm.[ ] during the revolution thomas marshall was, like most other continental officers, in sore need of money. he tried to sell his land to washington for cash. washington was anxious to buy "lands in my own neck at (almost) any price ... in ye way of barter ... for negroes ... or ... for any thing else (except breeding mares and stock)." but he could not pay money. he estimated, by memory, thomas marshall's land at £ , at a time when, because of depreciated money and inflated prices, "a barrl. of corn which used to sell for / will now fetch --when a barl. of porke that formerly could be had for £ sells for £ ." so washington in thought that "marshall is not a necessitous man." when it came to trading, the father of his country was keen and suspicious, and he feared, it would seem, that his boyhood friend and comrade in arms would "practice every deception in his power in order to work me ... up to his price."[ ] soon after john marshall met mary ambler at the "ball" at yorktown, and just before he went to william and mary college, his father sold this very land that washington had refused to purchase. on march , , thomas marshall conveyed to major thomas massey [massie] one thousand acres in fauquier county for "thirty thousand pounds currency."[ ] this was a part of the seventeen hundred acres for which the elder marshall had paid "nine hundred and twelve pounds ten shillings" seven years before.[ ] the change shows the startling depreciation of virginia currency as well as continental paper, both of which in had reached a very low point and were rapidly going down.[ ] [illustration: _mary ambler marshall_] it reveals, too, the marshall family's extreme need of cash, a want sorely felt by nearly everybody at this period; and the familiar fact that ownership of land did not mean the ready command of money. the year after john marshall's marriage he wrote to james monroe: "i do not know what to say to your scheme of selling out. if you can execute it you will have made a very capital sum, if you can retain your lands you will be poor during life unless you remove to the western country, but you have secured for posterity an immense fortune"; and marshall tells monroe that the latter can avail himself of the knowledge of kentucky lands possessed by the members of the marshall family who were on the ground.[ ] writing twenty years later of economic conditions during the period now under review, marshall says: "real property was scarcely vendible; and sales of any article for ready money could be made only at a ruinous loss.... in every quarter were found those who asserted it to be impossible for the people to pay their public or private debts."[ ] so, although his father was a very well-to-do man when john marshall began married life, he had little or no ready money, and the son could not expect much immediate paternal assistance. thomas marshall had to look out for the bringing-up of a large number of other children and to consider their future; and it is this fact which probably induced him to seek fortune anew in the kentucky wilderness after he was fifty years of age. legend has it that thomas marshall made his venture on washington's advice. at any rate, he settled, permanently, in kentucky in the fall of .[ ] the fledgling lawyer evidently expected to start upon a legal career in the county of his birth; but immediately after marrying miss ambler, he established himself at richmond, where her family lived, and there began the practice of the law. while his marriage into the ambler family was inspired exclusively by an all-absorbing love, the alliance was a fortunate one for john marshall from the practical point of view. it gave him the support of a powerful state official and one of the best-liked men in all virginia. a favor asked by jacquelin ambler was always granted if possible; and his recommendation of any one was final. the ambler household soon became the most attractive in richmond, as it had been in yorktown; and marshall's marriage to mary ambler gave him a social standing which, in the virginia of that day, was a very great asset in business and politics. the house to which he took his bride was a tiny one-story affair of wood, with only two rooms; the best house the amblers themselves could secure, as we have seen, was so small that the "whole family" could scarcely crowd into it. three years before john marshall and his young wife set up housekeeping, richmond could "scarce afford one comfort in life."[ ] according to mrs. carrington the dwelling-houses had no curtains for the windows.[ ] the streets were open spaces of earth, unpaved and without sidewalks. many years after marshall established himself at the new and raw virginia capital, main street was still unpaved, deep with dust when dry and so muddy during a rainy season that wagons sank up to the axles. footways had been laid only at intervals along the town's chief thoroughfare; and piles of ashes and cinders were made to serve as street-crossings, from which, if one misstepped on a dark and rainy night, he found himself deep in the mire. a small stream flowed diagonally across main street, flooding the surface; and the street itself ended in gullies and swamps.[ ] in the little town was, of course, still more primitive. there were no brick or stone buildings in richmond when marshall was married. the capitol, itself, was an ugly structure--"a mere wooden barn"--on an unlovely site at the foot of a hill.[ ] the private dwellings, scattered about, were the poor, mean, little wooden houses already described by eliza ambler. trade was in the hands of british merchants who managed to retain their commercial hold in spite of the revolution.[ ] rough, heavy wagons drawn by four or six horses brought in the produce of the country, which included "deer and bear skins, furs, ginseng, snake-root," and even "dried rattlesnakes ... used to make a viper broth for consumptive patients."[ ] these clumsy vehicles were sometimes a month in covering less than two hundred miles.[ ] specie was the money chiefly used in the back country and the frontier tradesmen made remittances to richmond by placing a "bag of gold or silver in the centre of a cask of melted wax or tallow ... or [in a] bale of hemp."[ ] there was but one church building and attendance was scanty and infrequent.[ ] the principal amusement was card-playing, in which everybody indulged,[ ] and drinking was the common practice.[ ] the town sustained but one tavern which was kept by a neapolitan named farmicola. this hostelry had two large rooms downstairs and two above. the beds were under the roof, packed closely together and unseparated by partitions. when the legislature met, the inn was crowded; and "generals, colonels, captains, senators, assembly-men, judges, doctors, clerks, and crowds of gentlemen of every weight and calibre and every hue of dress, sat altogether about the fire, drinking, smoking, singing, and talking ribaldry."[ ] such were conditions in the town of richmond when john marshall hazarded his adventure into the legal profession there in . but it was the seat of the state government, and the place where the general court of appeals and the high court of chancery were located. yet small, poor, and mean as was the virginia capital of that day, not even philadelphia, new york, or boston could boast of a more brilliant bar. randolph and wickham, innes and ronald, campbell and call, and others whose distinction has made the bar of the old dominion historic, practiced at richmond. and the court around which this extraordinary constellation gathered was equally eminent. pendleton, whose intellect and industry more than supplied early defects in education, was president of the court of appeals; wythe was one of the judges of the high court of chancery, of which he afterwards became sole chancellor; paul carrington and others of almost equal stature sat with pendleton on the supreme bench. later on appeared the erudite, able, and commanding roane, who, long afterwards, when marshall came into his own, was to be his most formidable antagonist in the clash of courts. among such lawyers and before a court of this high quality the young attorney from the backwoods of fauquier county began his struggle for a share of legal business. he had practically no equipment except his intellect, his integrity, and his gift for inspiring confidence and friendship. of learning in the law, he had almost none at all. he had read blackstone, although not thoroughly;[ ] but the only legal training that marshall had received was acquired during his few weeks at william and mary college. and in this romantic interval, as we have seen, he was thinking a good deal more about mary ambler than about preparing himself for his career. we know exactly to which of wythe's lectures marshall had listened; for he took notes of them. he procured a thick, blank book strongly bound in calf. in this he wrote in a large, firm hand, at the top of the page, the topics of lectures which wythe had announced he would give, leaving after each headline several pages for notes.[ ] since these notes are a full record of marshall's only formal instruction in the law, a complete list of the subjects, together with the space allotted to each, is as important as it is interesting. on the subject of abatement he wrote three pages; on accounts, two pages; on accord and satisfaction, one page; actions in general, one and a half pages; actions local and transitory, one fourth page; actions qui tam, one and one fourth pages; actions on the case, three and one half pages; agreements, three pages; annuity and rent charge, two pages; arbitrament and award, one and one half pages; assault and battery, two thirds of a page; assignment, one half page; assumpsit, one and a half pages; attachment, one half page; audita querela, one fourth page; authority, one fourth page; bail in civil causes, one half page; bail in criminal causes, one and two thirds pages; bailment, two pages; bargain and sale, one half page; baron and feme, four pages; bastardy, three quarters page; bills of sale, one half page; bills of exceptions, one half page; burglary, one page; carriers, one page; certiorari, one half page; commitments, one half page; condition, five and one half pages; coparceners, one and one half pages; costs, one and one fourth pages; covenant, three pages; curtesy of england, one half page; damages, one and one half pages; debt, one and one half pages; descent, one and one half pages; detinue, one half page; devises, six and one half pages; disseisin, two lines; distress, one and two thirds pages; dower, two pages; duress, one third page; ejectment, two and two thirds pages; election, two thirds page; error, two and one third pages; escape in civil cases, one and one fifth pages; estates in fee simple, three fourths page; estate for life and occupancy, one and four fifths pages; evidence, four pages, two lines; execution, one and five sixths pages; executors and administrators, eleven pages; extinguishment, two thirds page; extortion, one half page; felony, three and one sixth pages; forcible entry and detainer, three fourths page; forgery, three pages; forfeiture, two and four fifths pages; fraud, three pages, one line; grants, three and three fourths pages; guardian, two and five sixths pages; heir and ancestor, five pages, two lines; idiots and lunatics, three pages; indictments, four pages, three lines; infancy and age, nine and one half pages; information, one and one fifth pages; injunction, one and two thirds pages; inns and innkeepers, two and two thirds pages; joint tenants and tenants in common, nine and one sixth pages; jointure, three pages. we find six pages he had reserved for notes on the subject of juries left blank, and two blank pages follow the caption, "justice of the peace." but he made seventeen and two thirds pages of notes on the subjects of leases and terms for years, and twelve and one half pages on the subject of legacies. this ended his formal legal studies; for he made no notes under the remaining lecture subjects.[ ] not an ideal preparation to attract clients, we must admit, nor to serve them well when he got them. but slender and elementary as was his store of learning, his apparel, manners, and habits were even less likely to bring business to this meagerly equipped young advocate. marshall made practically no money as a lawyer during his first year in richmond. most of his slender income seems to have been from his salary as a member of the legislature.[ ] he enters in his account book in (where it begins) several receipts "by my civil list warrants," and several others, "rec^d. from treasury." only four fees are entered for the whole year--one for three pounds, another for two pounds, eleven shillings, one for two pounds, ten shillings, and a fourth for two pounds, eight shillings. on the contrary, he paid one pound, two shillings, sixpence for "advice fee given the attorney for opinion on surveyors fees." he bought "one pair spectacles" for three shillings and ninepence. his sociable nature is revealed at the beginning of his career by entries, "won at whist - - " and "won at whist /"; and again "at backgammon /- - ." also the reverse entry, "lost at whist £ /."[ ] the cost of living in richmond at the close of the revolution is shown by numerous entries. thirty-six bushels of oats cost marshall three pounds, ten shillings, sixpence. he paid one pound for "one pair stockings"; and one pound, eighteen shillings, sixpence for a hat. in a tailor charged him one pound, eight shillings, sixpence for "making a coat." he enters "stockings for p.[olly][ ] dollars." a stove "dutch oven" cost fourteen shillings and eightpence; and " bushels coal for self - " (seven pounds, ten shillings). in october of the year of his marriage he paid six shillings for wine and "for rum £ - ." his entries for household expenditures for these months give an idea of the housekeeping: "given polly dollars £ - - ; ... a coffe pot /; yd. gauze / ; sugar boxes £ - - ; candlestick &c. / y^{d}. linnen for p. / ; pieces of bobbin / ; tea pot /; edging / ; sugar pot / ; milk /; thimble / ; irons /,... tea /."[ ] the entries in marshall's account book for the first year and a half of his married life are indiscriminately and poorly made, without dates of receipts and expenditures. then follows a period up to june, , where the days of the month are stated. then come entries without dates; and later, the dates sometimes are given and sometimes not. marshall was as negligent in his bookkeeping as he was in his dress. entries in the notebook show on their face his distaste for such details. the account book covers a period of twelve years, from to . he was exceedingly miscellaneous in his expenses. on january , , he enters as items of outlay: "whist /" and "whist /," "cow £ - - " and "poker /," "to parson /." this date is jammed in, plainly an afterthought, and no more dates are specified until june . other characteristic entries at this time are, on one day, "turkeys / wood / whist £ "; and on another day, "beef / --backgammon £ ." an important entry, undated, is, "paid the university in the hands of mr. tazewell for col^o marshall as surveyor of fayette county " (pounds).[ ] on july , , he enters among receipts "to my service in the assembly - " (pounds and shillings); and among his expenses for june of that year, he enters "lost at whist £ " and on the th, "col^o [james] monroe & self at the play - "[ ] (one pound, ten shillings). a week later the theater again cost him twelve shillings; and on the third he enters an outlay "to one quarter cask wine " (pounds, or about fifty dollars virginia currency). on the same day appears a curious entry of "to the play /" and "pd for col^o monroe £ - ." he was lucky at whist this month, for there are two entries during july, "won at whist £ "; and again, "won at whist - " (four pounds, six shillings). he contributes to st. john's church one pound, eight shillings. during this month their first child was born to the young couple;[ ] and there are various entries for the immediate expenses of the event amounting to thirteen pounds, four shillings, and threepence. the child was christened august and marshall enters, "to house for christening / do. / ." the account book discloses his diversified generosity. preacher, horse-race, church, festival, card-game, or "ball" found john marshall equally sympathetic in his contributions. he was looking for business from all classes in exactly the same way that young lawyers of our own day pursue that object. also, he was, by nature, extremely sociable and generous. in marshall's time the preachers bet on horses and were pleasant persons at balls. so it was entirely appropriate that the young richmond attorney should enter, almost at the same time, "to mr. buchanan " (pounds)[ ] and "to my subscription for race £ - ";[ ] "saint taminy dollars-- - "[ ] (three pounds, six shillings); and still again, "paid my subscription to the ball /- "; and later, "expenses at st. john's [church] - " (pounds and shillings). marshall bought several slaves. on july , , he enters, "paid for ben - "[ ] (ninety pounds, four shillings). and in august of that year, "paid for two negroes £ " and "in part for two servants £ ." and in september, "paid for servants £ ," and on november , "kate & evan £ ." his next purchase of a slave was three years later, when he enters, may , , "paid for a woman bought in gloster £ ." shoeing two horses in cost marshall eight shillings; and a hat for his wife cost three pounds. for a bed-tick he paid two pounds, nine shillings. we can get some idea of the price of labor by the following entry: "pd. mr. anderson for plaistering the house £ - ." since he was still living in his little rented cottage, this entry would signify that it cost him a little more than thirty-five dollars, virginia currency, to plaster two rooms in richmond, in . possibly this might equal from seven to ten dollars in present-day money. he bought his first furniture on credit, it appears, for in the second year of his married life he enters, december " st p^d. m^r. mason in part for furniture " (pounds). at the end of the year, "pd balance of my rent - " (pounds and shillings). during , his third year as a lawyer, his fees steadily increased, most of them being about two pounds, though he received an occasional fee of from five to nine pounds. his largest single fee during this year was "from mr. stead fee " (pounds). he mixed fun with his business and politics. on february , , he writes to james monroe that public money due the latter could not be secured. "the exertions of the treasurer & of your other friends have been ineffectual. there is not one shilling in the treasury & the keeper of it could not borrow one on the faith of the government." marshall confides to monroe that he himself is "pressed for money," and adds that monroe's "old land lady mrs. shera begins now to be a little clamorous.... i shall be obliged i apprehend to negotiate your warrants at last at a discount. i have kept them up this long in hopes of drawing money for them from the treasury." but despite financial embarrassment and the dull season, marshall was full of the gossip of a convivial young man. "the excessive cold weather," writes marshall, "has operated like magic on our youth. they feel the necessity of artificial heat & quite wearied with lying alone, are all treading the broad road to matrimony. little steward (could you believe it?) will be married on thursday to kitty haie & mr. dunn will bear off your old acquaintance miss shera. "tabby eppes has grown quite fat and buxom, her charms are renovated & to see her & to love her are now synonimous terms. she has within these six weeks seen in her train at least a score of military & civil characters. carrington, young, selden, wright (a merchant), & foster webb have alternately bow'd before her & been discarded. "carrington 'tis said has drawn off his forces in order to refresh them & has march'd up to cumberland where he will in all human probability be reinforced with the dignified character of legislator. webb has returned to the charge & the many think from their similitude of manners & appetites that they were certainly designed for each other. "the other tabby is in high spirits over the success of her antique sister & firmly thinks her time will come next, she looks quite spruce & speaks of matrimony as of a good which she yet means to experience. lomax is in his county. smith is said to be electioneering. nelson has not yet come to the board. randolph is here and well.... farewell, i am your j. marshall."[ ] small as were the comforts of the richmond of that time, the charm, gayety, and hospitality of its inhabitants made life delightful. a young foreigner from switzerland found it so. albert gallatin, who one day was to be so large a factor in american public life, came to richmond in , when he was twenty-two years old. he found the hospitality of the town with "no parallel anywhere within the circle of my travels.... every one with whom i became acquainted," says gallatin, "appeared to take an interest in the young stranger. i was only the interpreter of a gentleman, the agent of a foreign house that had a large claim for advances to the state.... every one encouraged me and was disposed to promote my success in life.... john marshall, who, though but a young lawyer in , was almost at the head of the bar in , offered to take me in his office without a fee, and assured me that i would become a distinguished lawyer."[ ] during his second year in richmond, marshall's practice showed a reasonable increase. he did not confine his legal activities to the capital, for in february we find thirteen fees aggregating thirty-three pounds, twelve shillings, "rec^d. in fauquier" county. the accounts during this year were fairly well kept, considering that happy-go-lucky john marshall was the bookkeeper. even the days of the month for receipts and expenditures are often given. he starts out with active social and public contributions. on january , , he enters, "my subscription to assemblies [balls] - " (pounds and shillings), and "jan. annual subscription for library - " (pound, shillings). on january , , he enters, "laid out in purchasing certificates - - ." and again, july , "military certificates pd for self £ - - at for one £ - - . interest for years £ - ." a similar entry is made of purchases made for his father; on the margin is written, "pd commissioners." [illustration: _richmond in _] he made his first purchase of books in january, , to the amount of "£ - /." he was seized with an uncommon impulse for books this year, it appears. on february he enters, "laid out in books £ - - ." he bought eight shillings' worth of pamphlets in april. on may , marshall paid "for mason's poems" nine shillings. on may , "books /- " and may , "book / " and "blackstones commentaries[ ] /," and may , "books /." on may , there is a curious entry for "bringing books in stage /." on june , he purchased "blair's lectures" for one pound, ten shillings; and on the d of august, a "book case" cost him six pounds, twelve shillings. again, on september , marshall's entries show, "books £ - ," and on october , "kaim's principles of equity - " (one pound, four shillings). again in the same month he enters, "books £ - ," and "spirit of law" (undoubtedly montesquieu's essay), twelve shillings. but, in general, his book-buying was moderate during these formative years as a lawyer. while it is difficult to learn exactly what literature marshall indulged in, besides novels and poetry, we know that he had "dionysius longinus on the sublime"; the "works of nicholas machiavel," in four volumes; "the history and proceedings of the house of lords from the restoration," in six volumes; the "life of the earl of clarendon, lord high chancellor of england"; the "works of c. churchill--poems and sermons on lord's prayer"; and the "letters of lord chesterfield to his son." a curious and entertaining book was a condensed cyclopædia of law and business entitled "lex mercatoria rediviva or the merchant's directory," on the title-page of which is written in his early handwriting, "john marshall richmond."[ ] marshall also had an english translation of "the orations of Æschines and demosthenes on the crown."[ ] marshall's wine bills were very moderate for those days, although as heavy as a young lawyer's resources could bear. on january , , he bought fourteen shillings' worth of wine; and two and a half months later he paid twenty-six pounds and ten shillings "for wine"; and the same day, "beer d," and the next day, "gin /." on june of the same year he enters, "punch / ," the next day, "punch /," and on the next day, "punch /."[ ] early in this year marshall's father, now in kentucky and with opulent prospects before him, gave his favorite son eight hundred and twenty-four acres of the best land in fauquier county.[ ] so the rising richmond attorney was in comfortable circumstances. he was becoming a man of substance and property; and this condition was reflected in his contributions to various richmond social and religious enterprises. he again contributed two pounds to "s^t. taminy's" on may , , and the same day paid six pounds, six shillings to "my club at farmicolas."[ ] on may he paid thirty shillings for a "ball" and nine shillings for "music"; and may he enters, "jockie club - " (pounds and shillings). on july he spent six shillings more at the "club"; and the next month he again enters a contribution to "s^t. johns [episcopal church] £ - ." he was an enthusiastic mason, as we shall see; and on september , , he enters, "p^d. mason's ball subscription for " (pounds). october he gives eight pounds and four shillings for an "episcopal meeting"; and the next month (november , ) subscribes eighteen shillings "to a ball." and at the end of the year (december , ) he enters his "subscription to richmond assem. " (pounds). marshall's practice during his third year at the richmond bar grew normally. the largest single fee received during this year ( ) was thirty-five pounds, while another fee of twenty pounds, and still another of fourteen pounds, mark the nearest approaches to this high-water mark. he had by now in richmond two negroes (tithable), two horses, and twelve head of cattle.[ ] he was elected city recorder during this year; and it was to the efforts of marshall, in promoting a lottery for the purpose, that the masonic hall was built in the ambitious town.[ ] the young lawyer had deepened the affection of his wife's family which he had won in yorktown. two years after his marriage the first husband of his wife's sister, eliza, died; and, records the sorrowing young widow, "my father ... dispatched ... my darling brother marshall to bring me." again the bereaved eliza tells of how she was "conducted by my good brother marshall who lost no time" about this errand of comfort and sympathy.[ ] february , , he enters an expense of twelve pounds "for moving my office" which he had painted in april at a cost of two pounds and seventeen shillings. this year he contributed to festivities and social events as usual. in addition to his subscriptions to balls, assemblies, and clubs, we find that on may , , he paid nine shillings for a "barbecue," and during the next month, "barbecue /" and still again, "barbecue /." on june , he "paid for wine - - ," and on the th, "corporation dinner - - ." in september, , his doctor's bills were very high. on the d of that month he paid nearly forty-five pounds for the services of three physicians.[ ] among the books purchased was "blair's sermons" which cost him one pound and four shillings.[ ] in july he again "p^d. for s^t. taminy's feast " (pounds). the expense of traveling is shown by several entries, such as, "expenses up & down to & from fauquier - " (four pounds, twelve shillings); and "expenses going to gloster &c " (pounds); "expenses going to w^{ms}burg " (pounds); and again, "expenses going to and returning from winchester " (pounds); and still again, "expenses going to w^{ms}burg " (pounds). on november , marshall enters, "for quarter cask of wine - " (twelve pounds and ten shillings). on this date we find, "to barber " (shillings)--an entry which is as rare as the expenses to the theater are frequent. he appears to have bought a house during this year ( ) and enters on october , , "p^d. mr. b. lewis in part for his house £ cash & £ in an order in favor of james taylor---- "; and november , , "paid mr. b. lewis in part for house " (pounds); and in december he again "p^d. mr. lewis in part for house - " (twenty-seven pounds, four shillings); and (november ) "p^d. mr. lewis " (pounds); and on the th, "paid mr. lewis in full - - / ." in , the legislature elected edmund randolph governor; and, on november , , randolph advertised that "the general assembly having appointed me to an office incompatible with the further pursuit of my profession, i beg leave to inform my clients that john marshall esq. will succeed to my business in general &c."[ ] at the end of this year, for the first time, marshall adds up his receipts and expenditures, as follows: "received in the year according to the foregoing accounts - - ." and on the opposite page he enters[ ]-- to my expenses ______________________ --------------------------- -- in marshall kept his accounts in better fashion. he employed a housekeeper in april, mrs. marshall being unable to attend to domestic duties; and from february, , until may of the following year he enters during each month, "betsy mumkins /." the usual expenditures were made during this year, and while marshall neglects to summarize his income and outlay, his practice was still growing, although slowly. on december , , his second child was born.[ ] in january of occurred the devastating richmond fire which destroyed much of the little city;[ ] and on february , marshall enters among his expenses, "to my subscription to the sufferers by fire " (pounds). marshall's name first appears in the reports of the cases decided by the virginia court of appeals in . in may of that year the court handed down its opinion in hite _et al. vs._ fairfax _et al._[ ] it involved not only the lands directly in controversy, but also the validity of the entire fairfax title and indirectly that of a great deal of other land in virginia. baker, who appears to have been the principal attorney for the fairfax claimants, declared that one of the contentions of the appellants "would destroy every title in the commonwealth." the case was argued for the state by edmund randolph, attorney-general, and by john taylor (probably of caroline). marshall, supporting baker, acted as attorney for "such of the tenants as were citizens of virginia." the argument consumed three days, may to inclusive.[ ] marshall made an elaborate argument, and since it is the first of his recorded utterances, it is important as showing his quality of mind and legal methods at that early period of his career. marshall was a little more than thirty years old and had been practicing law in richmond for about three years. the most striking features of his argument are his vision and foresight. it is plain that he was acutely conscious, too, that it was more important to the settlers who derived their holdings from lord fairfax to have the long-disputed title settled than it was to win as to the particular lands directly in controversy. indeed, upon a close study of the complicated records in the case, it would seem that joist hite's claim could not, by any possibility, have been defeated. for, although the lands claimed by him, and others after him, clearly were within the proprietary of lord fairfax, yet they had been granted to hite by the king in council, and confirmed by the crown; lord fairfax had agreed with the crown to confirm them on his part; he or his agents had promised hite that, if the latter would remain on the land with his settlers, fairfax would execute the proper conveyances to him, and fairfax also made other guarantees to hite. but it was just as clear that, outside of the lands immediately in controversy, lord fairfax's title, from a strictly legal point of view, was beyond dispute except as to the effect of the sequestration laws.[ ] it was assailed, however, through suggestion at least, both by attorney-general randolph and by mr. taylor. there was, at this time, a strong popular movement on foot in virginia to devise some means for destroying the whole fairfax title to the northern neck. indeed, the reckless royal bounty from which this enormous estate sprang had been resented bitterly by the virginia settlers from the very beginning;[ ] the people never admitted the justice and morality of the fairfax grant. also, at this particular period, there was an epidemic of debt repudiation, evasion of contracts and other obligations, and assailing of titles.[ ] so, while baker, the senior fairfax lawyer, referred but briefly to the validity of the fairfax title and devoted practically the whole of his argument to the lands involved in the case then before the court, marshall, on the other hand, made the central question of the validity of the whole fairfax title the dominant note of his argument. thus he showed, in his first reported legal address, his most striking characteristic of going directly to the heart of any subject. briefly reported as is his argument in hite vs. fairfax, the qualities of far-sightedness and simple reasoning, are almost as plain as in the work of his riper years:-- "from a bare perusal of the papers in the cause," said marshall, "i should never have apprehended that it would be necessary to defend the title of lord _fairfax_ to the northern neck. the long and quiet possession of himself and his predecessors; the acquiescence of the country; the several grants of the crown, together with the various acts of assembly recognizing, and in the most explicit terms admitting his right, seemed to have fixed it on a foundation, not only not to be shaken, but even not to be attempted to be shaken. "i had conceived that it was not more certain, that there was such a tract of country as the northern neck, than that lord _fairfax_ was the proprietor of it. and if his title be really unimpeachable, to what purpose are his predecessors criminated, and the patents they obtained attacked? what object is to be effected by it? not, surely, the destruction of the grant; for gentlemen cannot suppose, that a grant made by the crown to the ancestor for services rendered, or even for affection, can be invalidated in the hands of the heir because those services and affection are forgotten; or because the thing granted has, from causes which must have been foreseen, become more valuable than when it was given. and if it could not be invalidated in the hands of the heir, much less can it be in the hands of a purchaser. "lord _fairfax_ either was, or was not, entitled to the territory; if he was, then it matters not whether the gentlemen themselves, or any others, would or would not have made the grant, or may now think proper to denounce it as a wise, or impolitic, measure; for still the title must prevail; if he was not entitled, then why was the present bill filed; or what can the court decree upon it? for if he had no title, he could convey none, and the court would never have directed him to make the attempt. "in short, if the title was not in him, it must have been in the crown; and, from that quarter, relief must have been sought. the very filing of the bill, therefore, was an admission of the title, and the appellants, by prosecuting it, still continue to admit it.... "it [the boundary] is, however, no longer a question; for it has been decided, and decided by that tribunal which has the power of determining it. that decision did not create or extend lord _fairfax's_ right, but determined what the right originally was. the bounds of many patents are doubtful; the extent of many titles uncertain; but when a decision is once made on them, it removes the doubt, and ascertains what the original boundaries were. if this be a principle universally acknowledged, what can destroy its application to the case before the court?" the remainder of marshall's argument concerns the particular dispute between the parties. this, of course, is technical; but two paragraphs may be quoted illustrating what, even in the day of henry and campbell, wickham and randolph, men called "marshall's eloquence." "they dilate," exclaimed marshall, "upon their hardships as first settlers; their merit in promoting the population of the country; and their claims as purchasers without notice. let each of these be examined. "those who explore and settle new countries are generally bold, hardy, and adventurous men, whose minds, as well as bodies, are fitted to encounter danger and fatigue; their object is the acquisition of property, and they generally succeed. "none will say that the complainants have failed; and, if their hardships and danger have any weight in the cause, the defendants shared in them, and have equal claim to countenance; for they, too, with humbler views and less extensive prospects, 'have explored, bled for and settled a, 'till then, uncultivated desert.'"[ ] hite won in this particular case; but, thanks to marshall's argument, the court's decision did not attack the general fairfax title. so it was that marshall's earliest effort at the bar, in a case of any magnitude, was in defense of the title to that estate of which, a few years later, he was to become a principal owner.[ ] indeed, both he and his father were interested even then; for their lands in fauquier county were derived from or through fairfax. of marshall's other arguments at this period, no record exists. we know, however, from his account book, that his business increased steadily; and, from tradition, that he was coming to be considered the ablest of the younger members of the distinguished richmond bar. for his services in this, his first notable case, marshall received one hundred and nine pounds, four shillings, paid by fifty-seven clients. among those employing the young attorney was george washington. in the account of fees paid him in hite vs. fairfax, he enters: "gen^l g. washington - " (pounds and shillings) and "a. washington - ." marshall's record of this transaction is headed: "list of fees rec'd from ten^{ts} fairfax ad^s hite," referring to the title of the case in the lower court. an evidence of his growing prosperity is the purchase from aquella and lucy dayson of two hundred and sixty acres of land in fauquier county, for "one hundred and sixty pounds current money of virginia."[ ] this purchase, added to the land already given him by his father,[ ] made john marshall, at thirty-one years of age, the owner of nearly one thousand acres of land in fauquier. marshall's account book shows his generosity toward his brothers and sisters, who remained in virginia when thomas marshall went to kentucky to establish himself. there are frequent entries of money advanced to his brothers, particularly james m., as, "given my brother james £ - "; or, "to my brother james £ - ," etc. marshall's sister lucy lived in his house until her marriage to the wealthy john ambler.[ ] the young lawyer was particularly attentive to the wants of his sister lucy and saw to it that she had all the advantages of the virginia capital. in his account book we find many entries of expenses in her behalf; as, for example, "for lucy £ - - "; and again, a few days later, "given eliza[ ] for lucy" four pounds, sixteen shillings; and still later, "for lucy - " (ten pounds, six shillings); and, "p^d. for lucy entering into dancing school - " (two pounds, two shillings). throughout marshall's account book the entries that most frequently occur are for some expense for his wife. there is hardly a page without the entry, "given polly" so much, or "for polly" so much, and the entries are for liberal amounts. for instance, on january , , he enters, "sundries for polly £ - - / "; on the th, "given polly /"; on the th, "for polly / / "; and on the th, "given polly for a hat /." and later, "given polly /" and "given polly - " (pounds and shillings); and "for polly £ ." "for polly - - "; "sundries for polly, - " and "left with polly - " (pounds and shillings). "given polly £ - "; "gloves for polly / ." such entries are very numerous. the young wife, who had become an invalid soon after her marriage, received from her husband a devotion and care which realized poetic idealism. "his exemplary tenderness to our unfortunate sister is without parallel," testifies mrs. carrington. "with a delicacy of frame and feeling that baffles all description, she became, early after her marriage, a prey to an extreme nervous affliction which more or less has embittered her comfort thro' life; but this only served to increase his care and tenderness.... he is always and under every circumstance an enthusiast in love."[ ] marshall's affection for his wife grew with the years and was nourished by her increasing infirmities. it is the most marked characteristic of his entire private life and is the one thing which differentiates him sharply from most of the eminent men of that heroic but, socially, free-and-easy period. indeed, it is in john marshall's worship of his delicate and nerve-racked wife that we find the beginnings of that exaltation of womankind, which his life, as it unrolls, will disclose. [illustration: page of marshall's account book, may, (_facsimile_)] john marshall's respect, admiration, reverence, for woman became so notable that it was remarked by all who knew him, and remains to this day a living tradition in richmond. it resembled the sentiment of the age of chivalry. while the touching incidents, glowing testimonials, and most of the letters that reveal this feature of marshall's character occur more vividly after he ascended the bench,[ ] the heart of the man cannot be understood as we go along without noting the circumstance in his earlier married life. footnotes: [ ] mrs. carrington to her sister nancy, ; _atlantic monthly_, lxxxiv, ; and same to same, march, ; ms. thomas marshall was now colonel of the virginia state regiment of artillery and continued as such until february , , when his men were discharged and he became "a reduced officer." (memorial of thomas marshall, _supra._ see appendix iv.) this valuable historical document is the only accurate account of thomas marshall's military services. it disproves the statement frequently made that he was captured when under lincoln at charleston, south carolina, may , . not only was he commanding the state artillery in virginia at that time, but on march he executed a deed in fauquier county, virginia, and in june he was assisting the ambler family in removing to richmond. (see _infra._) if a thomas marshall was captured at charleston, it must have been one of the many others of that name. there was a south carolina officer named thomas marshall and it is probably he to whom heitman refers. heitman (ed. ), . for account of the surrender of charleston, see mccrady, iii, - . [ ] "certain it is that another revolutionary war can never happen to affect and ruin a family so completely as ours has been!" it "involved our immediate family in poverty and perplexity of every kind." (mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, - .) [ ] _ib._ [ ] dog latin and crude pun for "bell in day." [ ] jefferson to page and to fleming, from dec. , , to march , ; _works_: ford, i, - . in these delightful letters jefferson tells of his infatuation, sometimes writing "adnileb" in greek. "he is a boy and is indisputably in love in this good year , and he courts and sighs and tries to capture his pretty little sweetheart, but like his friend george washington, fails. the young lady will not be captured!" (susan randolph's account of jefferson's wooing rebecca burwell; _green bag_, viii, .) [ ] tradition says that george washington met a like fate at the hands of edward ambler, jacquelin's brother, who won mary cary from the young virginia soldier. while this legend has been exploded, it serves to bring to light the personal attractiveness of the amblers; for miss cary was very beautiful, heiress of a moderate fortune, and much sought after. it was mary cary's sister by whom washington was captivated. (colonel wilson miles cary, in pecquet du bellet, i, - .) [ ] mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, . of the letters which john marshall wrote home while in the army, not one has been preserved. [ ] _ib._ [ ] _ib._ [ ] mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, . [ ] _hist. mag._, iii, . while this article is erroneous as to dates, it is otherwise accurate. [ ] _ib._, . [ ] mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, . [ ] _hist. mag._, iii, . [ ] mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, . [ ] _supra_, chap. ii. [ ] mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, . [ ] "notes on virginia": jefferson; _works_: ford, iv, . [ ] mrs. carrington to her sister nancy; _supra._ william and mary was the first american institution of learning to adopt the modern lecture system. (tyler; _williamsburg_, .) the lecture method was inaugurated dec. , (_ib._, - ), only four months before marshall entered. [ ] john brown to wm. preston, feb. , ; _w. and m. c. q._, ix, . [ ] mrs. carrington to her sister nancy; ms. [ ] see _infra._ [ ] the reverend james madison, professor of natural philosophy and mathematics; james mcclung, professor of anatomy and medicine; charles bellini, professor of modern languages; george wythe, professor of law; and robert andrews, professor of moral and intellectual philosophy. (_history of william and mary college_, baltimore, , - .) there was also a fencing school. (john brown to wm. preston, feb. , ; _w. and m. c. q._, ix, .) [ ] _history of william and mary college_, baltimore, , . "thirty students and three professors joined the army at the beginning of the revolutionary war." (_ib._, .) cornwallis occupied williamsburg, june, , and made the president's house his headquarters. (tyler: _williamsburg_, .) [ ] fithian, . [ ] john brown to wm. preston, jan. , ; _w. and m. c. q._, ix, . seventeen years later the total cost to a student for a year at the college was one hundred and fifty to one hundred and seventy dollars. (la rochefoucauld, iii, - .) the annual salary of the professors was four hundred dollars and that of the president was six hundred dollars. [ ] in marshall's time the college laws provided that "no liquors shall be furnished or used at [the college students'] table except beer, cider, toddy or spirits and water." (_history of william and mary college_ (baltimore, ), ; and see fithian, feb. , , - .) twelve years after marshall took his hasty law course at william and mary college, a college law was published prohibiting "the drinking of spirituous liquors (except in that moderation which becomes the prudent and industrious student)." (_history of william and mary college_, .) in the board of visitors formally resolved that for professors to marry was "contrary to the principles on which the college was founded, and their duty as professors"; and that if any professor took a wife "his professorship be immediately vacated." (resolution of visitors, sept. , ; _ib._, .) this law was disregarded; for, at the time when marshall attended william and mary, four out of the five professors were married men. the college laws on drinking were merely a reflection of the customs of that period. (see chaps. vii and viii.) this historic institution of learning turned out some of the ablest and best-educated men of the whole country. wythe, bland, peyton and edmund randolph, taylor of caroline, nicholas, pendleton, madison, and jefferson are a few of the william and mary's remarkable products. every one of the most distinguished families of virginia is found among her alumni. (see catalogue of alumni, _history of william and mary college_, - . an error in this list puts john marshall in the class of instead of that of ; also, he did not graduate.) [ ] _infra_, chap. vii. [ ] la rochefoucauld, iii, ; and see schoepf, ii, - . william wirt, writing twenty-three years after marshall's short attendance, thus describes the college: "they [virginians] have only one publick seminary of learning.... this college ... in the niggardly spirit of parsimony which they dignify with the name of economy, these democrats have endowed with a few despicable fragments of surveyors' fees &c. thus converting their national academy into a mere _lazaretto_ and feeding its ... highly respectable professors, like a band of beggars, on the scraps and crumbs that fall from the financial table. and, then, instead of aiding and energizing the police of the college, by a few civil regulations, they permit their youth to run riot in all the wildness of dissipation." (wirt: _the british spy_, , .) [ ] "notes on virginia": jefferson; _works_: ford, iv, . [ ] chastellux, . it is difficult to reconcile jefferson's description of the college building with that of the french traveler. possibly the latter was influenced by the french professor, bellini. [ ] john brown to col. wm. preston, july , : _w. and m. c. q._, ix, . [ ] john brown to col. wm. preston, july , ; _w. and m. c. q._, ix, . [ ] records, phi beta kappa society of william and mary college, printed in _w. and m. c. q._, iv, . [ ] dr. lyon g. tyler, now president of william and mary college, thinks that this date is approximately correct. [ ] records, phi beta kappa society of william and mary college; printed in, _w. and m. c. q._, iv, . [ ] see _infra._ [ ] marshall's notebook; ms. see _infra._ [ ] betsy ambler to mildred smith, ; _atlantic monthly_, lxxxiv, . [ ] see _infra._ [ ] marshall to his wife, _infra._ [ ] marshall could have had at least one year at william and mary, for the college did not close until june, . also he could have continued to attend for several weeks after he left in june, ; for student john brown's letters show that the college was still open on july of that year. [ ] county court minutes of fauquier county, virginia, - , . [ ] _autobiography._ [ ] marshall, with other officers, did go to philadelphia in january or february of to be inoculated for smallpox (marshall to colonel stark, june , , supporting latter's pension claim; mss. rev. war, s. f. no. , pension bureau); but evidently he was not treated or the treatment was not effective. [ ] first, the written permission to be inoculated had to be secured from all the justices of the county; next, all the neighbors for two miles around must consent--if only one of them refused, the treatment could not be given. any physician was fined ten thousand dollars, if he inoculated without these restrictions. (hening, ix, .) if any one was stricken with smallpox, he was carried to a remote cabin in the woods where a doctor occasionally called upon him. (la rochefoucauld, iii, - ; also de warville, .) [ ] horses were very scarce in virginia at this time. it was almost impossible to get them even for military service. [ ] _southern literary messenger_ (quoting from a statement by marshall), ii, . [ ] mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, . [ ] _ib._, . a story handed down through generations of lawyers confirms mrs. carrington. "i would have had my wife if i had had to climb alleghanys of skulls and swim atlantics of blood" the legend makes marshall say in one of his convivial outbursts. (the late senator joseph e. mcdonald to the author.) [ ] "the palace" was a public building "not handsome without but ... spacious and commodious within and prettily situated." ("notes on virginia": jefferson; _works_: ford, iv, .) [ ] richard anderson, the father of the defender of fort sumter. (terhune: _colonial homesteads_, .) [ ] a country place of edward ambler's family in hanover county. (see pecquet du bellet, i, .) edward ambler was now dead. his wife lived at "the cottage" from the outbreak of the war until her death in . (_ib._, ; and mrs. carrington to mrs. dudley, oct. , ; ms.) [ ] marshall to his wife, feb. , ; ms. [ ] most of the courts were closed because of the british invasion. (flanders, ii, .) [ ] _infra_, chap. vi. [ ] _autobiography._ [ ] betsy ambler to mildred smith, ; _atlantic monthly_, lxxxiv, . [ ] betsy ambler to mildred smith, ; _atlantic monthly_, lxxxiv, . [ ] jefferson to short, dec. , ; _works_: ford, vi, . twelve years after marshall's marriage, there were but seven hundred houses in richmond. (weld, i, .) [ ] pecquet du bellet, i, - . he was very rich. (see inventory of john ambler's holdings, _ib._) this opulent john ambler married john marshall's sister lucy in (_ib._, - ); a circumstance of some interest when we come to trace marshall's views as influenced by his connections and sympathies. [ ] mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, . [ ] she was born march , , and married january , . (paxton, .) marshall's mother was married at the same age. [ ] mrs. carrington to her sister nancy; _atlantic monthly_, lxxxiv, . [ ] thomas marshall's will shows that he owned, when he died, several years later, an immense quantity of land. [ ] _supra_, chap. ii. [ ] fauquier county tithable book, - ; ms., va. st. lib. [ ] _ib._ [ ] see _infra._ [ ] washington to lund washington, aug. , ; _writings_: ford, vii, - . [ ] records of fauquier county (va.), deed book, vii, . [ ] _supra_, chap. ii. [ ] see _infra_, chap. viii. [ ] marshall to monroe, dec. , ; monroe mss., vii, ; lib. cong. [ ] marshall, ii, . [ ] marshall to monroe, dec. , ; draper collection, wis. hist. soc. thomas marshall first went to kentucky in by special permission of the governor of virginia and while he was still colonel of the state artillery regiment. (humphrey marshall, i, , .) during his absence his regiment apparently became somewhat demoralized. (thomas marshall to colonel george muter, feb. ; ms. archives, va. st. lib. and partly printed in _cal. va. st. prs._, i, .) upon his return to virginia, he was appointed surveyor of a part of kentucky, november , . (collins: _history of kentucky_, i, .) the following year he was appointed on the commission "to examine and settle the public accts in the western country" and expected to go to kentucky before the close of the year, but did not, because his military certificates were not given him in time. (thomas marshall to governor harrison, march , ; _cal. va. st. prs._, i, ; and to lieutenant-governor jameson, oct. , ; _ib._, .) he opened his surveyor's office in kentucky in november, . (butler: _history of kentucky_, .) in he returned to virginia to take his family to their new home, where he remained until his death in . (paxton, .) thomas marshall was immediately recognized as one of the leading men in this western virginia district, and was elected to the legislature and became "surveyor [collector] of revenue for the district of ohio." (see _infra_, chaps, iii and v.) [ ] betsy ambler to mildred smith; _atlantic monthly_, lxxxiv, . [ ] mrs. carrington to mildred smith, jan. , ; ms. [ ] mordecai, - . [ ] _ib._, . [ ] mordecai, chap. ii. [ ] _ib._, - . this was more than twenty years after marshall and his young wife started housekeeping in richmond. [ ] _ib._, . [ ] _ib._ [ ] meade, i, ; schoepf, ii, . [ ] mordecai, chap, xxi; schoepf, ii, _et seq._ [ ] see _supra_, chaps. i and vii. [ ] schoepf, ii, . marshall frequented this place and belonged to a club which met there. (see entries from marshall's account book, _infra._) [ ] _supra_, chap. ii. [ ] this invaluable marshall source is not a law student's commonplace book alphabetically arranged, but merely a large volume of blank leaves. it is six inches wide by eight in length and more than one in thickness. the book also contains marshall's accounts for twelve years after his marriage. all reference hereafter to his receipts and expenses are from this source. [ ] the notes are not only of lectures actually delivered by wythe, but of marshall's reading on topics assigned for study. it is probable that many of these notes were made after marshall left college. [ ] see _infra_, chap. vi. [ ] such entries as these denote only marshall's social and friendly spirit. at that period and for many years afterward card-playing for money was universal in virginia (la rochefoucauld, iii, ; and mordecai, ed. , chap. xxi), particularly at richmond, where the women enjoyed this pastime quite as much as the men. (_ib._) this, indeed, was the case everywhere among women of the best society who habitually played cards for money. (also see chastellux, - .) [ ] marshall's wife. [ ] the references are to pounds, shillings, and pence. thus " /" means three pounds and fourteen shillings. " - - " means thirty pounds, five shillings, and tenpence; or " / " means three shillings, sixpence. where the account book indicates the amount without the signs of denomination, i have stated the amount indicated by the relative positions of the figures in the account book. computation should be by virginia currency (which was then about three and one half dollars to the virginia pound) and not by the english pound sterling. this is not very helpful, however, because there is no standard of comparison between the virginia dollar of that period and the united states dollar of to-day. it is certain only that the latter has greater purchasing power than the former. all paper money had greatly depreciated at the time, however. [ ] the "university" was william and mary college, then partly supported by a portion of the fees of official surveyors. thomas marshall was now surveyor of fayette county, kentucky. (see _supra._) this entry occurs several times. [ ] such entries are frequent throughout his account book. during his entire life, marshall was very fond of the theater. (see _infra_, ii, chap, v; also vol. iii of this work.) [ ] thomas marshall, born july , . (paxton, .) [ ] buchanan was the episcopal clergyman in richmond at the time. (meade, i, , .) [ ] the races at richmond, held bi-annually, were the great social events of virginia. (mordecai, _et seq._) [ ] this fixes the equivalent in state dollars for virginia pounds and shillings. [ ] he already owned one tithable negro in fauquier county in . (fauquier county tithable book, - ; ms., va. st. lib. see _supra._) [ ] marshall to monroe, feb. , ; ms., n.y. pub. lib. compare with jefferson's sentimental letters at the same age. very few of marshall's letters during this period are extant. this one to monroe is conspicuously noticeable for unrestraint and joyousness. as unreserved as he always was in verbal conversation, marshall's correspondence soon began to show great caution, unlike that of jefferson, which increased, with time, in spontaneity. thus marshall's letters became more guarded and less engaging; while jefferson's pen used ever more highly colored ink and progressively wrote more entertaining if less trustworthy matter. [ ] gallatin to maxwell, feb. , ; gallatin's _writings_: adams, ii, . also see mordecai, - . [ ] his father must have kept, for the time being, the blackstone purchased in , although the volume later turned up in marshall's possession. [ ] this book, with the others named, bears the signature of marshall at this period of his life. they are the only books in existence which certainly were bought by marshall at that time, all other volumes he is positively known to have had in his library being published at a later date. all except one of those named, with others hereafter mentioned, are in the possession of judge j. k. m. norton, alexandria, virginia. the _lex mercatoria_ is, of course, in english. it is a large book containing seven hundred seventy-five pages, seven by eight inches, firmly bound in calf. it is "compiled from many standard authorities." while it is an encyclopædia of law and business containing items such as a comparison of the values of money of all lands, it is very readable and entertaining. it is just the kind of book from which marshall could have derived information without being wearied by research. john adams also had a copy of malynes's _lex mercatoria_, which seems to have been a common possession of commercial lawyers throughout the country. [ ] this book is now in the possession of hon. william marshall bullitt, of louisville, kentucky. [ ] the numerous entries of this kind occurring throughout marshall's account book must not be misunderstood. at that time and for many decades afterward, the habitual use of whiskey, wine, rum, brandy, etc., was the universal custom. they were bought in quantities and consumed much as ordinary table waters now are. the common people, especially those in the south, distilled their own stimulants. the people of new england relied on the great distilleries of boston and vicinity for rum, of which they consumed enormous quantities. (see _infra_, chap. vii; also chap. ii, vol. ii, of this work.) [ ] records of fauquier county (va.), deed book, viii, , march , . [ ] the tavern kept by farmicola, where marshall's club met. (see _supra._) [ ] henrico county tithable book; va. st. lib. he had, of course, other slaves, horses, and cattle on his fauquier county plantation. [ ] christian, . [ ] eliza ambler to mildred smith, july , ; ms.; also printed in _atlantic monthly_, lxxxiv, - . [ ] drs. mcclurg, foushee, and mackie. [ ] this book was purchased for his wife, who was extremely religious. the volume is in the possession of judge j. k. m. norton, alexandria, virginia. on the fly-leaf appears, "mrs. mary w. marshall," in marshall's handwriting. the book was also useful to marshall for his own study of rhetoric, since blair's sermons stood very high, at this time, as examples of style. [ ] christian, , . [ ] this unbusinesslike balancing is characteristic of marshall. [ ] jacquelin ambler marshall, dec. , . (paxton, .) [ ] _ib._ [ ] call, i, . [ ] records of the court of appeals. [ ] the estate had been sequestered during the revolution. [ ] wertenbaker: _v. u. s._, - . for history of these grants, see chap. iv, vol. ii, of this work. [ ] see _infra_, chap. vi. [ ] call, iv, - . [ ] _infra_, vol. ii, chap. iv. [ ] records fauquier county (va.), deed book, x, . [ ] see _supra._ [ ] see _supra_, , footnote . [ ] mrs. carrington. [ ] mrs. carrington to her sister nancy; ms. the mother and sister of mrs. marshall were similarly afflicted. mrs. carrington frequently mentions this fact in her correspondence. [ ] see vol. iii of this work. chapter vi in the legislature and council of state the proceedings of the assembly are, as usual, rapidly degenerating with the progress of the session. (madison.) our assembly has been employed chiefly in rectifying the mistakes of the last and committing new ones for emendation at the next. (washington.) it is surprising that gentlemen cannot dismiss their private animosities but will bring them in the assembly. (marshall.) in , a small wooden building stood among the two or three hundred little frame houses[ ] which, scattered irregularly from the river to the top of the hill, made up the town of richmond at the close of the revolution. it was used for "balls," public banquets, and other functions which the merriment or inclination of the miniature capital required. but its chief use was to house the legislative majesty of virginia. in this building the general assembly of the state held its bi-yearly sessions. here met the representatives of the people after their slow and toilsome journey on horseback through the dense forests and all but impassable roads from every county of the commonwealth.[ ] the twenty years that had passed since marshall's father entered the house of burgesses had brought changes in the appearance and deportment of virginia's legislative body corresponding to those in the government of the newly established state. but few elegancies of velvet coat, fine lace, silk stocking, and silver buckle were to be seen in the virginia legislature of . later these were to reappear to some extent; but at the close of the revolution democracy was rampant, and manifested itself in clothing and manners as well as in curious legislation and strange civil convulsions. the visitor at a session of the old dominion's lawmakers beheld a variegated array--one member in homespun trousers thrust into high boots; still another with the fringed indian leggings and hunting-shirt of the frontier. some wore great-coats, some jackets, and, in general, an ostentatious disregard of fashionable apparel prevailed, which occasional silk knee-breeches and stockings emphasized. the looker-on would have thought this gathering of virginia lawmakers to be anything but a deliberative body enacting statutes for the welfare of over four hundred thousand people. an eye-witness records that movement, talk, laughter went on continuously; these solons were not quiet five minutes at a time.[ ] all debating was done by a very few men.[ ] the others "for most part ... without clear ... ideas, with little education or knowledge ... merely ... give their votes."[ ] adjoining the big room where this august assembly sat, was an anteroom; and at the entrance between these two rooms stood a burly doorkeeper, who added to the quiet and gravity of the proceedings by frequently calling out in a loud voice the names of members whom constituents or visitors wanted to see; and there was a constant running back and forth. the anteroom itself was a scene of conversational tumult. horse-racing, runaway slaves, politics, and other picturesque matters were the subjects discussed.[ ] outsiders stood in no awe of these lawgivers of the people and voiced their contempt, ridicule, or dislike quite as freely as their approval or admiration.[ ] into this assembly came john marshall in the fall of . undoubtedly his father had much to do with his son's election as one of fauquier county's representatives. his predominant influence, which had made thomas marshall burgess, sheriff, and vestryman before the revolution, had been increased by his admirable war record; his mere suggestion that his son should be sent to the house of delegates would have been weighty. and the embryo attorney wanted to go, not so much as a step in his career, but because the legislature met in the town where mary ambler lived. in addition to his father's powerful support, his late comrades, their terms of enlistment having expired, had returned to their homes and were hotly enthusiastic for their captain.[ ] he was elected almost as a matter of course. no one in that motley gathering called the house of delegates was dressed more negligently than this young soldier-lawyer and politician from the backwoods of fauquier county. he probably wore the short "round about" jacket, which was his favorite costume. and among all that free-and-easy crowd no one was less constrained, less formal or more sociable and "hail-fellow, well-met" than this black-eyed, laughter-loving representative from the up country. but no one had a sounder judgment, a more engaging personality, or a broader view of the drift of things than john marshall. and notable men were there for him to observe; vast forces moving for him to study. thomas jefferson had again become a member of the house after his vindication from threatened impeachment. patrick henry was a member, too, and william cabell, richard henry lee, benjamin harrison, and other men whose names have become historic. during marshall's later years in the legislature, james madison, george mason, william grayson, edmund randolph, george nicholas, and others of like stature became marshall's colleagues. it took eighteen days to organize the house at the first session john marshall attended.[ ] the distance that members had to come was so great, traveling so hard and slow, that not until november had enough members arrived to make a quorum.[ ] thomas jefferson and patrick henry were two of the absent and several times were ordered to be taken into the custody of the sergeant-at-arms.[ ] the journal for friday, november , gravely announces that "it was ordered that mr. thomas jefferson, one of the members for albemarle county who was taken into the custody of a special messenger by mr. speaker's warrant, agreeable to an order of the th ult., be discharged out of custody; it appearing to the house that he has good cause for his present non-attendance."[ ] marshall must have favorably impressed the speaker; for he was immediately appointed a member of the important committee for courts of justice;[ ] and two days later a member of a special committee "to form a plan of national defense against invasions"; to examine into the state of public arms, accouterments, and ammunition, and to consult with the executive "on what assistance they may want from the legislature for carrying the plan into execution."[ ] two days afterwards marshall was appointed on a special committee to frame a bill to amend the ordinance of convention.[ ] his first vote was for a bill to permit john m'lean, who, because of illness, went to england before the outbreak of the war, and who had returned, to remain in virginia and live with his family.[ ] marshall's next two votes before taking his place as a member of the council of state are of no moment except as indicating the bent of his mind for honest business legislation and for a strong and efficient militia.[ ] during november, marshall was appointed on several other committees.[ ] of these, the most important was the select committee to bring in a bill for the reorganization of the militia,[ ] which reported a comprehensive and well-drawn measure that became a law.[ ] he was also on the standing committee of privileges and elections.[ ] the virginia legislature, during these years, was not a body to inspire respect.[ ] madison had a great contempt for it and spoke with disgust of the "temper of the legislature & the wayward course of its proceedings."[ ] indeed, the entire government of the state was an absurd medley of changing purposes and inefficiency. "nothing," wrote madison to jefferson, "can exceed the confusion which reigns throughout our revenue department.... this confusion indeed runs through all of our public affairs, and must continue as long as the present mode of legislating continues"; the method of drawing bills "must soon bring our laws and our legislature into contempt among all orders of citizens."[ ] nor did virginia's lawmakers improve for several years. madison in advised washington that "the proceedings of the assembly are, as usual, rapidly degenerating with the progress of the session."[ ] and the irritated soldier at mount vernon responded with characteristic heat that "our assembly has been ... employed ... chiefly in rectifying some of the mistakes of the last, and committing new ones for emendations at the next."[ ] washington, writing to lafayette of american affairs in , said, with disgust, that "virginia in the very last session ... was about to pass some of the most extravagant and preposterous edicts ... that ever stained the leaves of a legislative code."[ ] popular as he was with the members of the legislature, marshall shared madison's opinion of their temper and conduct. of the fall session of the assembly of , he writes to colonel levin powell: "this long session has not produced a single bill of public importance except that for the readmission of commutables.[ ] ... it ought to be perfect as it has twice passed the house. it fell the first time (after an immensity of labor and debate) a sacrifice to the difference of opinion subsisting in the house of delegates and the senate with respect to a money bill. a bill for the regulation of elections and inforcing the attendance of members is now on the carpet and will probably pass.[ ]... it is surprising that gentlemen of character cannot dismiss their private animosities, but will bring them in the assembly."[ ] early in the session marshall in a letter to monroe describes the leading members and the work of the house. "the commutable bill,"[ ] writes he, "has at length pass'd and with it a suspension of the collections of taxes till the first of january next.... colo. harry lee of the legionary corps" is to take the place of "col^o. r. h. lee" whose "services are lost to the assembly forever"; and marshall does not know "whether the public will be injur'd by the change." since the passage of the "commutable bill ... the attention of the house has been so fix'd on the citizen bill that they have scarcely thought on any other subject.... col. [george] nicholas (politician not fam'd for hitting a medium) introduced one admitting into this country every species of men except natives who had borne arms against the state.... mr. jones introduc'd by way of amendment, one totally new and totally opposite to that which was the subject of deliberation. he spoke with his usual sound sense and solid reason. mr. henry opposed him. "the speaker replied with some degree of acrimony and henry retorted with a good deal of tartness but with much temper; 'tis his peculiar excellence when he altercates to appear to be drawn unwillingly into the contest and to throw in the eyes of others the whole blame on his adversary. his influence is immense."[ ] marshall's strange power of personality which, in after years, was so determining an influence on the destiny of the country, together with the combined influence of his father and of the state treasurer, jacquelin ambler, marshall's father-in-law, now secured for the youthful legislator an unusual honor. eleven days after the house of delegates had organized, marshall was elected by joint ballot of the senate and the house a member of the council of state,[ ] commonly called the executive council. the journal of the council for november , , records: "john marshall esquire having been elected a member of the privy council or council of state in the room of john bannister esquire who hath resigned and producing a certificate from under the hand of jaq. ambler esq^r of his having qualified according to law; he took his seat at the board."[ ] marshall had just turned his twenty-seventh year, and the council of state was supposed to be made up of men of riper years and experience. older men, and especially the judges of the courts, resented the bestowal of this distinction upon so youthful a member serving his first term. edmund pendleton, judge of the high court of chancery and president of the court of appeals, wrote to madison that: "young mr. marshall is elected a councillor.... he is clever, but i think too young for that department, which he should rather have earned as a retirement and reward, by ten or twelve years hard service in the assembly."[ ] the council consisted of eight members elected by the legislature either from the delegates or from the people at large. it was the governor's official cabinet and a constitutional part of the executive power. the governor consulted the council on all important matters coming before him; and he appointed various important officers only upon its advice.[ ] the constitution of virginia of was the basis upon which was built one of the most perfect political machines ever constructed; and this machine in later years came to be marshall's great antagonist. as a member of the council of state, marshall learned by actual experience the possible workings of this mechanism, first run by patrick henry, perfected by thomas jefferson, and finally developed to its ultimate efficiency by spencer roane and thomas ritchie.[ ] thus marshall took part in the appointment of surveyors, justices of the peace, tobacco inspectors, and other officers;[ ] and passed on requisitions from other states for the delivery of fugitive criminals.[ ] [illustration: marshall's signature as a member of the council of state, ] [illustration: marshall's signature in ] [illustration: signature of thomas marshall as colonel of the d virginia regiment] marshall's signature to the minutes of the council is totally unlike that of his more mature years, as, indeed, is the chirography of his letters of that period. he signed the council records in large and dashing hand with flourishes--it is the handwriting of a confident, care-free, rollicking young man with a tinge of the dare-devil in him. these signatures are so strangely dissimilar to his later ones that they deserve particular attention. they denote marshall's sense of his own importance and his certainty of his present position and future prospects. the criticisms from the judges--first expressed by pendleton, before whom marshall was trying to practice law--of his membership of the executive council continued. because of these objections, marshall finally resigned and at once sought another election from his native county to the house of delegates. the accepted version of this incident is that marshall resigned from the executive council because the duties of that position took too much time from his profession; and that, without his request or desire, his old neighbors in fauquier, from "their natural pride in connecting his rising name with their county, spontaneously elected him to the legislature."[ ] thus does greatness, once achieved, throw upon a past career a glory that dazzles the historian's eye; and the early steps of advancement are seen and described as unasked and unwished honors paid by a discerning public to modest and retiring merit. thus, too, research and fact are ever in collision with fancy and legend. the cherished story about marshall's resignation from the council and "spontaneous" election to the legislature from his home county is a myth. the discontent of the judges practically forced him out of the council and he personally sought another election from fauquier county to the house of delegates. marshall himself gives the true account of these important incidents. "i am no longer a member of the executive [council]," marshall informs his friend james monroe, "the opinion of the judges with regard to a councillor's standing at the bar determined me to retire from the council board. every person is now busied about the ensuing election." certainly marshall was thus occupied; for he writes monroe that "i had made a small excursion into fauquier to enquire into the probability of my being chosen by the people, should i offer as a candidate at the next election." marshall tells the political news, in which he shows minute information, and finally advises monroe that "i have been maneuvering amazingly to turn your warrants into cash if i succeed i shall think myself a first rate speculator."[ ] marshall's personal attention[ ] to his candidacy bore fruit; and for the second time he was chosen as delegate from fauquier, although he now lived in henrico county.[ ] [illustration: first page of a letter from marshall to james monroe (_facsimile_)] when the legislature convened, nine days again passed before enough members were in richmond to make up a house.[ ] marshall was among the tardy. on may , the sergeant-at-arms was ordered to take him and other members into custody; and later in the day he and four others were brought in by that officer and "admitted to their seats on paying fees."[ ] he was at once appointed to his old place on the committee for courts of justice and upon the immensely important standing committee on propositions and grievances, to which was referred the flood of petitions of soldiers and officers, the shower of applications of counties and towns for various laws and other matters of pressing local and personal concern in every part of virginia.[ ] to the cases of his old comrades in arms who applied to the legislature for relief, marshall was particularly attentive.[ ] he became the champion of the revolutionary veterans, most of whom were very poor men.[ ] upon washington's suggestion a bill was brought in for the relief of thomas paine by vesting in him a moderate tract of public lands. upon the third reading it was "committed to a committee of the whole house" and there debated. marshall, who apparently led the fight for paine, "read in his place" several amendments. but notwithstanding washington's plea, the immense services of paine to the american cause during the revolution, and the amendments which, obviously, met all objections, the bill was defeated.[ ] numerous things of human interest happened during this session which show the character of the legislature and the state of the people. an englishman named williamson[ ] had gone to essex county a year before by permission of the governor, but in violation of the law against british refugees. when he refused to leave, the people tarred and feathered him and drove him out of the country in this condition.[ ] the attorney-general began prosecutions against the leaders of the mob; and the offending ones petitioned the legislature to interfere. the petition was referred to the committee on propositions and grievances[ ] of which marshall was a member. this committee reported that the petition ought to be granted "and that all irregularities committed by any citizen of this state on the person or properties of refugees previous to the ratification of the definitive treaty of peace ... should be indemnified by law and buried in utter oblivion."[ ] but when the bill came to a vote, it was defeated.[ ] it was reported to the house that a certain john warden had insulted its dignity by saying publicly that if the house had voted against paying the british debts, some of its members had voted against paying for the coats on their backs--a charge which was offensively true. the committee on privileges and elections was instructed to take this serious matter up and order the offender before it. he admitted the indiscretion and apologized for it. the committee read warden's written acknowledgment and apology before the house and thus he was purged of the contempt of that sensitive body.[ ] a william finnie, who had been deputy quartermaster in the military service, had purchased, at the request of the board of war, a large quantity of boots for a corps of cavalry in active service and then on the march. although the seller of the boots knew that they were bought for the public service, he sued finnie and secured judgment against him, which was on the point of being executed. finnie petitioned the legislature that the debt be paid by the state. the committee on propositions and grievances took charge of this petition, reported the facts to be as finnie had stated them, and recommended that the debt "ought to be paid him by the public and charged to the united states."[ ] but the house rejected the resolution. incidents like these, as well as the action of the legislature and the conduct of the people themselves, had their influence on the radical change which occurred in marshall's opinions and point of view during the decade after the war. marshall was appointed on many special committees to prepare sundry bills during this session. among these was a committee to frame a bill to compel payment by those counties that had failed to furnish their part of the money for recruiting virginia's quota of troops to serve in the continental army. this bill was passed.[ ] a vote which gives us the first sight of marshall's idea about changing a constitution was taken during this session. augusta county had petitioned the legislature to alter virginia's fundamental law. the committee reported a resolution against it, "such a measure not being within the province of the house of delegates to assume; but on the contrary, it is the express duty of the representatives of the people at all times, and on all occasions, to preserve the same [the constitution] inviolable, until a majority of all the people shall direct a reform thereof."[ ] marshall voted to amend this resolution by striking out the words quoted. thus, as far as this vote indicates, we see him standing for the proposition that a form of government could be changed by convention, which was the easiest, and, indeed, at that time the only practicable, method of altering the constitution of the state. madison also favored this plan, but did nothing because of patrick henry's violent opposition. the subject was debated for two days and the project of a convention with full powers to make a new constitution was overwhelmingly defeated, although nearly all of the "young men of education & talents" were for it.[ ] a few of the bills that marshall voted for or reported from committee are worthy of note, in addition to those which had to do with those serious questions of general and permanent historic consequence to the country presently to be considered. they are important in studying the development of marshall's economic and governmental views. in , washington brought vividly before the virginia legislature the necessity of improving the means of transportation.[ ] at the same time this subject was also taken up by the legislature of maryland. a law was passed by the virginia legislature for "opening and extending the navigation of the potowmack river from tidewater to the highest place practicable on the north branch"; and maryland took similar action. these identical laws authorized the forming of a corporation called the "potowmack company" with a quarter of a million dollars capital. it was given the power of eminent domain; was authorized to charge tolls "at all times forever hereafter"; and the property and profits were vested in the shareholders, "their heirs and assigns forever."[ ] john marshall voted for this bill, which passed without opposition.[ ] he became a stockholder in the corporation and paid several assessments on his stock.[ ] thus early did marshall's ideas on the nature of a legislative franchise to a corporation acquire the vitality of property interest and personal experience. marshall was on the committee for courts of justice during every session when he was a member of the house and worked upon several bills concerning the courts. on november , , he was appointed upon a special committee to bring in a bill "to amend the act establishing the high court of chancery."[ ] three weeks later he reported this bill to the house;[ ] and when the bill passed that body it was "ordered that mr. marshall do carry the bill to the senate and desire their concurrence." the committee which drew this bill was made up from among the ablest men in the house: henry, mason, nicholas, matthews, stuart, and monroe being the other members,[ ] with marshall who was chairman. the act simplified and expedited proceedings in equity.[ ] the high court of chancery had been established by an act of the virginia legislature of .[ ] this law was the work of thomas jefferson. it contained one of the reforms so dear to his heart during that period--the right of trial by jury to ascertain the facts in equity causes. but six years' experience proved that the reform was not practical. in the jury trial in equity was abolished, and the old method that prevailed in the courts of chancery before the revolution was reinstated.[ ] with this exception the original act stood in virginia as a model of jeffersonian reforms in legal procedure; but under its provisions, insufferable delays had grown up which defeated the ends of justice.[ ] it was to remedy this practical defect of jefferson's monumental law that marshall brought in the bill of . but the great matters which came before the legislature during this period, between the ending of the war and the adoption of the constitution, were: the vexed question of the debts owed by virginia planters to british subjects; the utter impotence of the so-called federal government and the difficulty of getting the states to give it any means or authority to discharge the national debts and uphold the national honor; and the religious controversy involving, at bottom, the question of equal rights for all sects.[ ] the religious warfare[ ] did not greatly appeal to marshall, it would seem, although it was of the gravest importance. bad as the state of religion was at the beginning of the revolution, it was worse after that struggle had ended. "we are now to rank among the nations of the world," wrote mason to henry in ; "but whether our independence shall prove a blessing or a curse must depend upon our wisdom or folly, virtue or wickedness.... the prospect is not promising.... a depravity of manners and morals prevails among us, to the destruction of all confidence between man and man."[ ] the want of public worship "increases daily; nor have we left in our extensive state three churches that are decently supported," wrote mrs. carrington, the sister of john marshall's wife, a few years later.[ ] travelers through virginia during this period note that church buildings of all denominations were poor and mean and that most of these were falling into ruins; while ministers barely managed to keep body and soul together by such scanty mites as the few pious happened to give them or by the miserable wages they earned from physical labor.[ ] these scattered and decaying little church houses, the preachers toiling with axe or hoe, formed, it appears, an accurate index of the religious indifference of the people.[ ] there were gross inequalities of religious privileges. episcopal clergymen could perform marriage ceremonies anywhere, but ministers of the other denominations could do so only in the county where they lived. the property of the episcopal church came from the pockets of all the people; and the vestries could tax members of other churches as well as their own for the relief of the poor.[ ] it was a curious swirl of conflicting currents. out of it came the proposition to levy an assessment on everybody for the support of religion; a bill to incorporate the episcopal church which took away its general powers of vestry taxation, but confirmed the title to the property already held; and the marriage law which gave ministers of all denominations equal authority.[ ] although these propositions were debated at great length and with much spirit and many votes were taken at various stages of the contest, marshall recorded his vote but twice. he did not vote on the resolution to incorporate the episcopal church;[ ] or to sell the glebe lands;[ ] nor did he vote on the marriage bill.[ ] he voted against madison's motion to postpone consideration of the bill for a general assessment to support religion, which carried,[ ] thus killing the bill. when the bill to incorporate the episcopal church came to a final vote, marshall voted "aye," as, indeed, did madison.[ ] but if marshall took only a languid interest in the religious struggle, he was keen-eyed and active on the other two vital matters--the payment of debts, both public and private, and the arming of the federal government with powers necessary to its existence. throughout this whole period we see the rapid and solid growth of the idea of nationality, the seeds of which had been planted in john marshall's soul by the fingers of military necessity and danger. here, too, may be found the beginning of those ideas of contract which developed throughout his life and hardened as they developed until finally they became as flint. and here also one detects the first signs of the change in what marshall himself called "the wild and enthusiastic notions"[ ] with which, only a few years earlier, he had marched forth from the backwoods, to fight for independence and popular government. virginia planters owed an immense amount of money to british merchants. it had been the free-and-easy habit of virginians to order whatever they wanted from england and pay for it in the produce of their fields, chiefly tobacco. the english merchants gave long credit and were always willing to extend it when the debt fell due. the virginians, on their part, found the giving of new notes a convenient way of canceling old obligations and thus piled up mountains of debt which they found hard to remove. after the war was over, they had little means with which to discharge their long overdue accounts.[ ] during the revolution stringent and radical laws were passed, preventing the recovery of these debts in the courts, sequestering the property and even forfeiting the estates owned by british subjects in virginia; and a maze of acts, repealing and then reviving the statutes that prevented payment, were passed after the war had ended.[ ] the treaty between the united states and great britain provided as one of the conditions of peace that all these legal impediments to the recovery of british debts should be removed.[ ] failure to repeal the anti-debt legislation passed during the war was, of course, a plain infraction of this contract between the two countries; while the enactment of similar laws after the treaty had become binding, openly and aggressively violated it. within two weeks after marshall took his seat in the house in , this sorely vexed question came up. a resolution was brought in "that so much of all and every act or acts of the assembly, now in force in this commonwealth as prevents a due compliance with the stipulation contained in the definitive treaty of peace entered into between great britain and america ought to be repealed"; but a motion to put the question to agree with this resolution was defeated by a majority of twenty. john marshall voted to put the question.[ ] those resisting the effort to carry out the treaty of peace declared that great britain itself had not complied with it, because the british had not surrendered the american posts retained by them at the close of the war and had not returned or paid for the slaves carried away by the british forces.[ ] a fortnight after the first defeat of the movement against the anti-debt law, a resolution was laid before the house instructing virginia's representatives in congress to request that body to protest to the british government against this infraction of the treaty and to secure reparation therefor, and stating that the virginia legislature would not cooperate "in the complete fulfillment of said treaty" until this was done. the intent of the resolution was that no british debts should be paid for a long time to come. but the resolution did provide that, when this reparation was made, or when "congress shall adjudge it indispensably necessary," the anti-debt laws "ought to be repealed and payment made to all [creditors] in such time and manner as shall consist with the exhausted situation of this commonwealth"; and that "the further operation of all and every act or acts of the assembly concerning escheats and forfeitures from british subjects ought to be prevented."[ ] an amendment was offered containing the idea that the debtors might deduct their losses from their debts, thus taking a little step toward payment. another amendment to strengthen this was also proposed. had these amendments carried, the policy of an early payment of the british debts would have prevailed. marshall voted for both as did madison. the amendments, however, were overwhelmingly defeated.[ ] the situation and point of view of the british merchants to whom these debts were due and who, depending upon the faithful performance of the treaty, had come to virginia to collect the money owing them, is illustrated by a petition which george f. norton presented to the house. he was a member of the mercantile firm of norton and sons, of london, from whom virginians had made purchases on credit for a generation before the war. he declared that his firm had "been compelled to pay many debts due from the said company, but he has been unable to collect any due to them, in consequence of the laws prohibiting recovery of british debts, by which he has been reduced to the greatest extremes."[ ] after the summer adjournment the irrepressible conflict between keeping or breaking the national faith once more arose. henry, who was the champion of the debtors, had been elected governor and was "_out of the way_."[ ] several british merchants had proposed to accept payments of their debts in installments. ratifications of the treaty had been exchanged. the friends of national honor and private good faith had gathered headway. finally a bill passed the house repealing the anti-debt laws. the senate and the house came to an agreement. here arose a situation which pictures the danger and difficulty of travel in that day. before the bill had been sent back to the house, enrolled, examined, and signed by both presiding officers, several members went across the river to spend the night at the neighboring hamlet of manchester. it was the day before adjournment and they expected to return the next morning. but that night the river froze[ ] and they could not get back. so this important measure fell through for the session.[ ] no "ayes" and "noes" were called for during this final battle, but marshall probably took part in the debate and it is certain that he used the influence which his popularity among members gave him for the passage of this law. "i wish with you," wrote marshall to monroe, in early december, "that our assembly had never passed those resolutions respecting the british debts which have been so much the subject of reprehension throughout the states. i wish it because it affords a pretext to the british to retain possession of the posts on the lakes but much more because i ever considered it as a measure tending to weaken the federal bands which in my conception are too weak already. we are about, tho reluctantly, to correct the error." marshall despondently summed up the work of the session: "we have as yet done nothing finally. not a bill of public importance, in which an individual was not particularly interested, has passed."[ ] marshall was not a candidate for the legislature in - , but sought and secured election in , when he was sent from henrico county, where richmond was situated. during this hiatus in marshall's public life another effort was made to repeal the anti-debt laws, but so bitter was the resistance that nothing was accomplished. madison was distressed.[ ] when marshall again became a member of the general assembly the question of the british debts was brought forward once more. this time the long-delayed bill was passed, though not until its foes had made their point about the runaway slaves and the unevacuated posts.[ ] a resolution was brought in that the anti-debt laws "ought to be repealed," but that any act for this purpose should be suspended until the other states had passed similar laws. an amendment was defeated for making the suspension until great britain complied with the treaty. john marshall voted against it, as did his father thomas marshall, who was now a member of the virginia legislature from the district of kentucky.[ ] another amendment to pay the british debts "in such time and manner as shall consist with the exhausted situation of this commonwealth" met a similar fate, both marshalls, father and son, voting against it.[ ] the resolution was then passed, the two marshalls voting for it.[ ] marshall was then appointed a member of the special committee to prepare and bring in a bill to carry out the resolution.[ ] in a few days this bill was laid before the house. except the extension clause, this bill was probably drawn by marshall. it was short and to the point. it repealed everything on the statute books repugnant to the treaty of peace. it specifically "directed and required" the courts to decide all cases "arising from or touching said treaty" "according to the tenor, true intent, and meaning of same" regardless of the repealed laws. but the operation of the law was suspended until congress informed the governor "that the other states in the union have passed laws enabling british creditors to recover their debts agreeably to the terms of the treaty."[ ] the bill was emphasized by a brief preamble which stated that "it is agreed by the fourth article of the treaty of peace with great britain that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted." the opponents of the bill tried to emasculate it by an amendment that the law should not go into effect until the governor of virginia made public proclamation "that great britain hath delivered up to the united states the posts therein now occupied by british troops" and was taking measures to return the runaway slaves or to pay for them. they succeeded. whether from agitation outside the legislative hall[ ] or from the oratory of patrick henry, or from a greater power of the leaders in lobbying among their fellow members, a quick and radical transformation of sentiment took place. probably all these causes joined to produce it. by a crushing majority of forty-nine the amendment was adopted and the bill denatured. both john marshall and his father voted against the amendment, as did george mason, benjamin harrison, and james monroe.[ ] thus, in two weeks, a majority of thirty-three against this very scheme for breaking the force of the bill was changed to a majority of forty-nine in favor of it. the bill as amended passed the next day.[ ] such were the instability of the virginia legislature at this period and the people's bitter opposition to the payment of the debts owed to british subjects. the effect on marshall's mind was very great. the popular readiness to escape, if not to repudiate, contracted obligations, together with the whimsical capriciousness of the general assembly, created grave misgivings in his mind. his youthful sympathy with the people was beginning to disappear. just as the roots of his nationalist views run back to valley forge, so do the roots of his economic-political opinions penetrate to the room in the small frame building where sat the legislature of virginia in the first years that followed the close of the war. but the mockery of government exhibited by the federal establishment at this period of chaos impressed marshall even more than the spirit of repudiation of debts and breaking of contracts which was back of the anti-debt legislation.[ ] the want of the national power during the revolution, which marshall had seen from the "lights ... which glanced from the point of his sword,"[ ] he now saw through the tobacco smoke which filled the grimy room where the legislature of virginia passed laws and repealed them almost at the same time.[ ] the so-called federal government was worse than no government at all; it was a form and a name without life or power. it could not provide a shilling for the payment of the national debt nor even for its own support. it must humbly ask the states for every dollar needed to uphold the national honor, every penny necessary for the very existence of the masquerade "government" itself. this money the states were slow and loath to give and doled it out in miserable pittances. even worse, there was as yet little conception of nationality among the people--the spirit of unity was far weaker than when resistance to great britain compelled some kind of solidarity; the idea of cooperation was even less robust than it was when fear of french and indian depredations forced the colonists to a sort of common action. also, as we shall see, a general dislike if not hostility toward all government whether state or national was prevalent.[ ] as to the national government, it would appear that, even before the war was over, the first impulse of the people was to stop entirely the feeble heart that, once in a while, trembled within its frail bosom: in , for instance, virginia's legislature repealed the law passed in may of the preceding year authorizing congress to levy a duty on imports to carry on the war, because "the permitting any power other than the general assembly of this commonwealth, to levy duties or taxes upon the citizens of this state within the same, is injurious to its sovereignty" and "may prove destructive of the rights and liberty of the people."[ ] a year later the legislature was persuaded again to authorize congress to levy this duty;[ ] but once more suspended the act until the other states had passed "laws" of the same kind and with a proviso which would practically have nullified the working of the statute, even if the latter ever did go into effect.[ ] at the time this misshapen dwarf of a nationalist law was begotten by the virginia legislature, marshall was a member of the council of state; but the violent struggle required to get the assembly to pass even so puny an act as this went on under his personal observation. when marshall entered the legislature for the second time, the general subject of the debts of the confederation arose. congress thought that the money to pay the loans from foreign governments by which the war had been carried on, might be secured more easily by a new mode of apportioning their quotas among the thirteen states. the articles of confederation provided that the states should pay on the basis of the value of lands. this worked badly, and congress asked the states to alter the eighth article of confederation so as to make the states contribute to the general treasury on a basis of population. for fear that the states would not make this change, congress also humbly petitioned the thirteen "sovereignties" to ascertain the quantity and value of land as well as the number of people in each state. on may , ,[ ] after the usual debating, a strong set of nationalist resolutions was laid before the virginia house of delegates. they agreed to the request of congress to change the basis of apportioning the debt among the states; favored providing for the payment of a part of what each state owed congress on the requisition of three years before; and even went so far as to admit that if the states did not act, congress itself might be justified in proceeding. the last resolution proposed to give congress the power to pass retaliatory trade laws.[ ] these resolutions were adopted with the exception of one providing for the two years' overdue payment of the virginia share of the requisition of congress made in . marshall was appointed a member of a special committee to "prepare and bring in bills" to carry out the two resolutions for changing the basis of apportionment from land to population, and for authorizing congress to pass retaliatory trade laws. george mason and patrick henry also were members of this committee on which the enemies of the national idea had a good representation. two weeks later the bills were reported.[ ] three weeks afterwards the retaliatory trade bill was passed.[ ] but all the skill and ability of madison, all the influence of marshall with his fellow members, could not overcome the sentiment against paying the debts; and, as usual, the law was neutralized by a provision that it should be suspended until all the other states had enacted the same kind of legislation. the second contest waged by the friends of the nationalist idea in which marshall took part was over the extradition bill which the legislature enacted in the winter of . the circumstances making such a law so necessary that the virginia legislature actually passed it, draw back for a moment the curtain and give us a view of the character of our frontiersmen. daring, fearless, strong, and resourceful, they struck without the sanction of the law. the object immediately before their eyes, the purpose of the present, the impulse or passion of the moment--these made up the practical code which governed their actions. treaties of the american "government" with the governments of other countries were, to these wilderness subduers, vague and far-away engagements which surely never were meant to affect those on the outskirts of civilization; and most certainly could not reach the scattered dwellers in the depths of the distant forests, even if such international compacts were intended to include them. as for the government's treaties or agreements of any kind with the indian tribes, they, of course, amounted to nothing in the opinion of the frontiersmen. who were the indians, anyway, except a kind of wild animal very much in the frontiersman's way and to be exterminated like other savage beasts? were not the indians the natural foes of these white lords of the earth?[ ] indeed, it is more than likely that most of this advance guard of the westward-marching american people never had heard of such treaties until the government's puny attempt to enforce them. at any rate, the settlers fell afoul of all who stood in their way; and, in the falling, spared not their hand. madison declared that there was "danger of our being speedily embroiled with the nations contiguous to the u. states, particularly the spaniards, by the licentious & predatory spirit of some of our western people. in several instances, gross outrages are said to have been already practiced."[ ] jay, then secretary of state, mournfully wrote to jefferson in paris, that "indians have been murdered by our people in cold blood, and no satisfaction given; nor are they pleased with the avidity with which we seek to acquire their lands." expressing the common opinion of the wisest and best men of the country, who, with madison, were horrified by the ruthless and unprovoked violence of the frontiersmen, jay feared that "to pitch our tents through the wilderness in a great variety of places, far distant from each other," might "fill the wilderness with white savages ... more formidable to us than the tawny ones which now inhabit it." no wonder those who were striving to found a civilized nation had "reason ... to apprehend an indian war."[ ] to correct this state of things and to bring home to these sons of individualism the law of nations and our treaties with other countries, madison, in the autumn of , brought in a bill which provided that virginia should deliver up to foreign governments such offenders as had come within the borders of the commonwealth. the bill also provided for the trial and punishment by virginia courts of any virginia citizen who should commit certain crimes in "the territory of any christian nation or indian tribe in amity with the united states." the law is of general historic importance because it was among the first, if not indeed the very first, ever passed by any legislative body against filibustering.[ ] the feebleness of the national idea at this time; the grotesque notions of individual "rights"; the weakness or absence of the sense of civic duty; the general feeling that everybody should do as he pleased; the scorn for the principle that other nations and especially indian tribes had any rights which the rough-and-ready settlers were bound to respect, are shown in the hot fight made against madison's wise and moderate bill. viewed as a matter of the welfare and safety of the frontiersmen themselves, madison's measure was prudent and desirable; for, if either the indians or the spaniards had been goaded into striking back by formal war, the blows would have fallen first and heaviest on these very settlers. yet the bill was stoutly resisted. it was said that the measure, instead of carrying out international law, violated it because "such surrenders were unknown to the law of nations."[ ] and what became of virginia's sacred bill of rights, if such a law as madison proposed should be placed on the statute books, exclaimed the friends of the predatory backwoodsmen? did not the bill of rights guarantee to every person "speedy trial by an impartial jury of twelve men of his vicinage," where he must "be confronted with the accusers and witnesses," said they? but what did this nationalist extradition bill do? it actually provided that men on virginia soil should be delivered up for punishment to a foreign nation which knew not the divine right of trial by jury. as for trying men in virginia courts and before virginia juries for something they had done in the fastnesses of the far-away forests of the west and south, as madison's bill required, how could the accused "call for evidence in his favor"? and was not this "sacred right" one of the foundation stones, quarried from magna charta, on which virginia's "liberties" had been built?[ ] to be sure it was! yet here was james madison trying to blast it to fragments with his nationalism! so ran the arguments of those early american advocates of _laissez-faire_. madison answered, as to the law of nations, by quoting vattel, grotius, and puffendorf. as to the bill of rights, he pointed out that the individualist idealism by which the champions of the settlers interpreted this instrument "would amount to a license for every aggression, and would sacrifice the peace of the whole community to the impunity of the worst members of it."[ ] such were the conservative opinions of james madison three years before he helped to frame the national constitution. madison saw, too,--shocking treason to "liberty,"--"the necessity of a qualified interpretation of the bill of rights,"[ ] if we were to maintain the slightest pretense of a national government of any kind. the debate lasted several days.[ ] with all the weight of argument, justice, and even common prudence on the side of the measure, it certainly would have failed had not patrick henry come to the rescue of it with all the strength of his influence and oratory.[ ] the bill was so mangled in committee that it was made useless and it was restored only by amendment. yet such was the opposition to it that even with henry's powerful aid this was done only by the dangerous margin of four votes out of a total of seventy-eight.[ ] the enemies of the bill mustered their strength overnight and, when the final vote came upon its passage the next morning, came so near defeating it that it passed by a majority of only one vote out of a total of eighty-seven.[ ] john marshall, of course, voted for it. while there is no record that he took part in the debate, yet it is plain that the contest strengthened his fast-growing nationalist views. the extravagance of those who saw in the bill of rights only a hazy "liberty" which hid evil-doers from the law, and which caused even the cautious madison to favor a "qualified interpretation" of that instrument, made a lasting impression on marshall's mind. but marshall's support was not wholly influenced by the prudence and nationalism of the measure. he wished to protect the indians from the frontiersmen. he believed, with henry, in encouraging friendly relations with them, even by white and red amalgamation. he earnestly supported henry's bill for subsidizing marriages of natives and whites[ ] and was disappointed by its defeat. "we have rejected some bills," writes marshall, "which in my conception would have been advantageous to the country. among these, i rank the bill for encouraging intermarriages with the indians. our prejudices however, oppose themselves to our interests, and operate too powerfully for them."[ ] during the period between and when marshall was out of the legislature, the absolute need of a central government that would enable the american people to act as a nation became ever more urgent; but the dislike for such a government also crystallized. the framing of the constitution by the federal convention at philadelphia in never could have been brought about by any abstract notions of national honor and national power, nor by any of those high and rational ideas of government which it has become traditional to ascribe as the only source and cause of our fundamental law. the people at large were in no frame of mind for any kind of government that meant power, taxes, and the restrictions which accompany orderly society. the determination of commercial and financial interests to get some plan adopted under which business could be transacted, was the most effective force that brought about the historic convention at philadelphia in . indeed, when that body met it was authorized only to amend the articles of confederation and chiefly as concerned the national regulation of commerce.[ ] virginia delayed acting upon the constitution until most of the other states had ratified it. the old dominion, which had led in the revolution, was one of the last commonwealths to call her convention to consider the "new plan" of a national government. the opposition to the proposed fundamental law was, as we shall see, general and determined; and the foes of the constitution, fiercely resisting its ratification, were striving to call a second general convention to frame another scheme of government or merely to amend the articles of confederation. to help to put virginia in line for the constitution, john marshall, for the third time, sought election to the legislature. his views about government had now developed maturely into a broad, well-defined nationalism; and he did not need the spur of the wrathful words which washington had been flinging as far as he could against the existing chaos and against everybody who opposed a strong national government. if marshall had required such counsel and action from his old commander, both were at hand; for in all his volcanic life that vesuvius of a man never poured forth such lava of appeal and denunciation as during the period of his retirement at mount vernon after the war was over and before the constitution was adopted.[ ] but marshall was as hot a nationalist as washington himself. he was calmer in temperament, more moderate in language and method, than his great leader; but he was just as determined, steady, and fearless. and so, when he was elected to the legislature in the early fall of , he had at heart and in mind but one great purpose. army life, legislative experience, and general observation had modified his youthful democratic ideals, while strengthening and confirming that nationalism taught him from childhood. marshall himself afterwards described his state of mind at this period and the causes that produced it. "when i recollect," said he, "the wild and enthusiastic notions with which my political opinions of that day were tinctured, i am disposed to ascribe my devotion to the union and to a government competent to its preservation, at least as much to casual circumstances as to judgment. i had grown up at a time when the love of the union, and the resistance to the claims of great britain were the inseparable inmates of the same bosom; when patriotism and a strong fellow-feeling with our suffering fellow-citizens of boston were identical; when the maxim, 'united we stand, divided we fall,' was the maxim of every orthodox american. "and i had imbibed these sentiments so thoroughly that they constituted a part of my being. i carried them with me into the army, where i found myself associated with brave men from different states, who were risking life and everything valuable in a common cause, believed by all to be most precious; and where i was confirmed in the habit of considering america as my country, and congress as my government.... my immediate entrance into the state legislature opened to my view the causes which had been chiefly instrumental in augmenting those sufferings [of the army]; and the general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized general government."[ ] on the third day of the fall session of the virginia legislature of , the debate began on the question of calling a state convention to ratify the proposed national constitution.[ ] on october the debate came to a head and a resolution for calling a state convention passed the house.[ ] the debate was over the question as to whether the proposed convention should have authority either to ratify or reject the proposed scheme of government entirely; or to accept it upon the condition that it be altered and amended. francis corbin, a youthful member from middlesex, proposed a flat-footed resolution that the state convention be called either to accept or reject the "new plan." he then opened the debate with a forthright speech for a convention to ratify the new constitution as it stood. patrick henry instantly was on his feet. he was for the convention, he said: "no man was more truly federal than himself." but, under corbin's resolution, the convention could not propose amendments to the constitution. there were "errors and defects" in that paper, said henry. he proposed that corbin's resolution should be changed so that the state convention might propose amendments[ ] as a condition of ratification. the debate waxed hot. george nicholas, one of the ablest men in the country, warmly attacked henry's idea. it would, declared nicholas, "give the impression" that virginia was not for the constitution, whereas "there was, he believed, a decided majority in its favor." henry's plan, said nicholas, would throw cold water on the movement to ratify the constitution in states that had not yet acted. george mason made a fervid and effective speech for henry's resolution. this eminent, wealthy, and cultivated man had been a member of the philadelphia convention that had framed the constitution; but he had refused to sign it. he was against it for the reasons which he afterwards gave at great length in the virginia convention of .[ ] he had "deeply and maturely weighed every article of the new constitution," avowed mason, and if he had signed it, he "might have been justly regarded as a traitor to my country. i would have lost this hand before it should have marked my name to the new government."[ ] at this juncture, marshall intervened with a compromise. the constitutionalists were uncertain whether they could carry through corbin's resolution. they feared that henry's plan of proposing amendments to the constitution might pass the house. the effect of such an anti-constitutional victory in virginia, which was the largest and most populous state in the union, would be a blow to the cause of the constitution from which it surely could not recover. for the movement was making headway in various states for a second federal convention that should devise another system of government to take the place of the one which the first federal convention, after much quarreling and dissension, finally patched up in philadelphia.[ ] so marshall was against both corbin's resolution and henry's amendment to it; and also he was for the ideas of each of these gentlemen. it was plain, said marshall, that mr. corbin's resolution was open to the criticism made by mr. henry. to be sure, the virginia convention should not be confined to a straight-out acceptance or rejection of the new constitution; but, on the other hand, it would never do for the word to go out to the other states that virginia in no event would accept the constitution unless she could propose amendments to it. he agreed with nicholas entirely on that point. marshall also pointed out that the people of virginia ought not to be given to understand that their own legislature was against the proposed constitution before the people themselves had even elected a convention to pass upon that instrument. the whole question ought to go to the people without prejudice; and so marshall proposed a resolution of his own "that a convention should be called and that the new constitution should be laid before them for their free and ample discussion."[ ] marshall's idea captured the house. it placated henry, it pleased mason; and, of course, it was more than acceptable to corbin and nicholas, with whom marshall was working hand in glove, as, indeed, was the case with all the constitutionalists. in fact, marshall's tactics appeared to let every man have his own way and succeeded in getting the convention definitely called. and it did let the contending factions have their own way for the time being; for, at that juncture, the friends of the new national constitution had no doubt that they would be able to carry it through the state convention unmarred by amendments, and its enemies were equally certain that they would be able to defeat or alter it. marshall's resolution, therefore, passed the house "unanimously."[ ] other resolutions to carry marshall's resolution into effect also passed without opposition, and it was "ordered that two hundred copies of these resolutions be printed and dispersed by members of the general assembly among their constituents; and that the executive should send a copy of them to congress and to the legislature and executive of the respective states."[ ] but the third month of the session was half spent before the senate passed the bill.[ ] not until january of the following year did it become a law.[ ] in addition, however, to defining the privileges of the members and providing money for its expenses, the bill also authorized the convention to send representatives "to any of the sister states or the conventions thereof which may be then met," in order to gather the views of the country "concerning the great and important change of government which hath been proposed by the federal convention."[ ] thus the advocates of a second general convention to amend the articles of confederation or frame another constitution scored their point. so ended the first skirmish of the historic battle soon to be fought out in virginia, which would determine whether the american people should begin their career as a nation. just as john marshall was among the first in the field with rifle, tomahawk, and scalping-knife, to fight for independence, so, now, he was among those first in the field with arguments, influence, and political activities, fighting for nationalism. footnotes: [ ] richmond grew rapidly thereafter. the number of houses was trebled within a decade. [ ] schoepf, ii, - . [ ] schoepf, ii, - . [ ] _ib._; and see journals. [ ] _ib._, ii, . [ ] schoepf, - . [ ] _ib._, . [ ] story, in dillon, iii, . marshall was a prime favorite of his old comrades all his life. (_ib._) [ ] journal, h.d. (oct. sess., ), - . [ ] the roads were so bad and few that traveling even on horseback was not only toilsome but dangerous. (see _infra_, chap. vii.) [ ] journal, h.d. (oct. sess., ), - . [ ] journal, h.d. (oct. sess., .), - . [ ] _ib._, . [ ] _ib._, - . [ ] _ib._, . [ ] _ib._, ; hening, xi, . the "ayes" and "noes" were taken on this bill and marshall's vote is, of course, without any importance except that it was his first and that it was a little straw showing his kindly and tolerant disposition. also the fact that the "ayes" and "noes" were called for--something that was very rarely done--shows the popular feeling against englishmen. [ ] journal, h.d. (oct. sess., ), - . marshall voted in favor of bringing in a bill for strengthening the credit account; and against postponing the consideration of the militia bill. (_ib._, .) [ ] _ib._, , , , , , . [ ] _ib._, . [ ] hening, xi, - . [ ] journal, h.d., . [ ] "it greatly behoves the assembly to revise several of our laws, and to abolish all such as are contrary to the fundamental principles of justice; and by a strict adherence to the distinctions between right and wrong for the future, to restore that confidence and reverence ... which has been so greatly impaired by a contrary conduct; and without which our laws can never be much more than a dead letter." (mason to henry, may , , as quoted in henry, ii, .) [ ] _writings_: hunt, ii, . this notable fact is worthy of repetition if we are to get an accurate view of the virginia legislature of that day. yet that body contained many men of great ability. [ ] madison to jefferson, july , ; _writings_: hunt, ii, . [ ] madison to washington, dec. , ; _ib._, v, - . [ ] washington to madison, jan. , ; _writings_: ford, xi, . [ ] washington to lafayette, april , ; _ib._, . washington wrote bitterly of state antagonism. "one state passes a prohibitory law respecting some article, another state opens wide the avenue for its admission. one assembly makes a system, another assembly unmakes it." (_ib._) [ ] hening, xi, - . this statement of marshall's was grossly incorrect. this session of the legislature passed several laws of the very greatest public consequence, such as the act to authorize congress to pass retaliatory trade laws against great britain (_ib._, ); an immigration and citizenship act (_ib._, - ); an act prohibiting british refugees from coming to virginia; and a quarantine act (_ib._, - ). it was this session that passed the famous act to authorize virginia's delegates in congress to convey to the united states the northwest territory (_ib._, - ). this remarkable oversight of marshall is hard to account for. an explanation is that this was the year of his marriage; and the year also in which he became a resident of richmond, started in the practice of the law there, and set up his own home. in addition to these absorbing things, his duty as a member of the council of state took his attention. also, of course, it was the year when peace with great britain was declared. still, these things do not excuse marshall's strange misstatement. perhaps he underestimated the importance of the work done at this particular session. [ ] hening, xi, - . this bill became a law at the spring session of the following year. the impracticable part enforcing attendance of members was dropped. the bill as passed imposes a penalty of fifty pounds on any sheriff or other officer for failure to return certificates of elections; a forfeit of two hundred pounds upon any sheriff interfering in any election or showing any partiality toward candidates. [ ] marshall to powell, dec. , ; _branch historical papers_, i, - . [ ] an act allowing one half of the taxes to be paid in tobacco, hemp, flour, or deerskins, and suspending distress for taxes until january, . (hening, xi, .) the scarcity of specie was so great and the people so poor that the collection of taxes was extremely difficult. in the partial payment of taxes in commutables--tobacco, hemp, flour, or deerskins--was introduced. this occasioned such loss to the treasury that in may, , the commutable acts were repealed; but within five months the legislature reversed itself again and passed the commutable bill which so disgusted marshall. [ ] marshall to monroe, dec. , ; ms., draper collection, wisconsin historical society; also printed in _amer. hist. rev._, iii, . this letter is not addressed, but it has been assumed that it was written to thomas jefferson. this is incorrect; it was written to james monroe. [ ] journal, h.d. (oct. sess., ), . it is almost certain that his father and jacquelin ambler were pushing him. the speaker and other prominent members of the house had been colleagues of thomas marshall in the house of burgesses and ambler was popular with everybody. still, marshall's personality must have had much to do with this notable advancement. his membership in the council cannot be overestimated in considering his great conflict with the virginia political "machine" after he became chief justice. see volume iii of this work. [ ] journal of the council of state, nov. , ; ms., va. st. lib. [ ] pendleton to madison, nov. , ; quoted in rives, i, . [ ] constitution of virginia, . [ ] dodd, in _amer. hist. rev._, xii, . [ ] marshall participated in the appointment of general george rogers clark to the office of surveyor of officers' and soldiers' lands. (journal, ex. council, , : ms., va. st. lib.) [ ] _ib._ [ ] binney, in dillon, iii, - . this story is repeated in almost all of the sketches of marshall's life. [ ] marshall to monroe, april , ; ms., n.y. pub. lib. [ ] his father, now in kentucky, could no longer personally aid his son in his old home. thus marshall himself had to attend to his own political affairs. [ ] marshall did not try for the legislature again until when he sought and secured election from henrico. (see _infra._) [ ] journal, h.d. (spring sess., ), . a robert marshall was also a member of the house during as one of the representatives for isle of wight county. he was not related in any way to john marshall. [ ] _ib._ [ ] _ib._ [ ] story, in dillon, iii, - . [ ] as an example of the number and nature of these soldier petitions see journal, h.d. (spring sess., ), , , , , , . [ ] see chap, viii and footnote to p. . [ ] williamson was a tory of the offensive type. he had committed hostile acts which embittered the people against him. (see _cal. va. st. prs._, ii. and see eckenrode: _r. v._, chap, xi, for full account of this and similar cases.) [ ] the gentle pastime of tarring and feathering unpopular persons and riding them on sharp rails appears to have been quite common in all parts of the country, for a long time before the revolution. men even burned their political opponents at the stake. (see instances in belcher, i, - .) savage, however, as were the atrocities committed upon the loyalists by the patriots, even more brutal treatment was dealt out to the latter by british officers and soldiers during the revolution. (see _supra_, chap. iv, footnote to p. .) [ ] journal, h.d. (spring sess., ), . [ ] journal, h.d. (spring sess., ), , . [ ] _ib._, . for thorough examination of this incident see eckenrode: _r. v._, chap. xi. [ ] journal, h.d. (spring sess., ), . [ ] _ib._, . [ ] hening, xi, . [ ] journal, h.d., - . [ ] madison to jefferson, july , ; _writings_: hunt, ii, - . the constitution of never was satisfactory to the western part of virginia, which was under-represented. representation was by counties and not population. also suffrage was limited to white freeholders; and this restriction was made more onerous by the fact that county representation was based on slave as well as free population. also, the constitution made possible the perpetuation of the virginia political machine, previously mentioned, which afterward played a part of such vast importance in national affairs. yet extreme liberals like the accomplished and patriotic mason were against the legislature turning itself into a convention to make a new one. (mason to henry, may , ; henry, ii, .) [ ] madison to jefferson, jan. , ; _writings_: hunt, ii, . [ ] hening, xi, - . this law shows the chief articles of commerce at that time and the kind of money which might be received as tolls. the scale of equivalents in pounds sterling vividly displays the confused currency situation of the period. the table names spanish milled pieces of eight, english milled crowns, french silver crowns, johannes, half johannes, moidores, english guineas, french guineas, doubloons, spanish pistoles, french milled pistoles, arabian sequins; the weight of each kind of money except spanish pieces of eight and english and french milled crowns being carefully set out; and "other gold coin (german excepted) by the pennyweight." if any of this money should be reduced in value by lessening its weight or increasing its alloy it should be received at "its reduced value only." (_ib._) [ ] madison to jefferson, jan. , ; _writings_: hunt, ii, . madison gives a very full history and description of this legislation. [ ] marshall's account book contains entries of many of these payments. [ ] journal, h.d. (nov. ), - . [ ] journal, h.d. (nov. ), . [ ] _ib._, . [ ] hening, xii, - . the preamble of the act recites that it is passed because under the existing law "justice is greatly delayed by the tedious forms of proceedings, suitors are therefore obliged to waste much time and expense to the impoverishment of themselves and the state, and decrees when obtained are with difficulty carried into execution." (_ib._) [ ] _ib._, ix, - . [ ] _ib._, xi, - . [ ] see jefferson's letter to mazzei, explaining the difference between law and equity and the necessity for courts of chancery as well as courts of law. this is one of the best examples of jefferson's calm, clear, simple style when writing on non-political subjects. (jefferson to mazzei, nov., ; _works_: ford, iv, - .) [ ] for the best contemporaneous description of virginia legislation during this period see madison's letters to jefferson when the latter was in paris. (_writings_: hunt, i and ii.) [ ] for a thorough account of the religious struggle in virginia from the beginning see eckenrode: _s. of c. and s._ on the particular phase of this subject dealt with while marshall was a member of the virginia legislature see _ib._, chap. v. [ ] mason to henry, may , , as quoted in rowland, ii, . [ ] meade, i, footnote to . and see _atlantic monthly, supra_. [ ] eckenrode:_ s. of c. and s._, . on this general subject see meade, i, chaps. i and ii. "infidelity became rife, in virginia, perhaps, beyond any other portion of land. the clergy, for the most part, were a laughing stock or objects of disgust." (_ib._, .) even several years later bishop meade says that "i was then taking part in the labours of the field, which in virginia was emphatically _servile labour_." (_ib._, .) "one sees not only a smaller number of houses of worship [in virginia] than in other provinces, but what there are in a ruinous or ruined condition, and the clergy for the most part dead or driven away and their places unfilled." (schoepf, ii, - .) [ ] henry, ii, - . [ ] eckenrode: _s. of c. and s._, . [ ] journal, h.d. ( d sess., ), . [ ] _ib._, . [ ] _ib._, . [ ] _ib._ [ ] _ib._ [ ] _ib._, . for the incorporation law see hening, xi, - ; for marriage law see _ib._, - . madison describes this law to jefferson and excuses his vote for it by saying that "the necessity of some sort of incorporation for the purpose of holding & managing the property of the church could not well be denied, nor a more harmless modification of it now be obtained. a negative of the bill, too, would have doubled the eagerness and the pretexts for a much greater evil, a general assessment, which, there is good ground to believe, was parried by this partial gratification of its warmest votaries." (madison to jefferson, jan. , ; _writings_: hunt, ii, .) [ ] story, in dillon, iii, . [ ] "virginia certainly owed two millions sterling [$ , , ] to great britain at the conclusion of the war. some have conjectured the debt as high as three millions [$ , , ].... these debts had become hereditary from father to son for many generations, so that the planters were a species of property annexed to certain mercantile houses in london.... i think that state owed near as much as all the rest put together." jefferson's explanation of these obligations is extremely partial to the debtors, of whom he was one. (jefferson to meusnier, jan. , ; _works_: ford, v, .) most of jefferson's earlier debts were contracted in the purchase of slaves. "i cannot decide to sell my lands.... nor would i willingly sell the slaves as long as there remains any prospect of paying my debts with their labor." this will "enable me to put them ultimately on an easier footing, which i will do the moment they have paid the [my] debts,... two thirds of which have been contracted by purchasing them." (jefferson to lewis, july , ; _ib._, .) [ ] for virginia legislation on this subject see hening, ix, x, and xi, under index caption "british debts." [ ] definitive treaty of peace, , art. . [ ] journal, h.d. ( st sess.), , . [ ] _ib._, ; - . the treaty required both. [ ] journal, h.d. ( st sess., ), . [ ] _ib._, - . henry led the fight against repealing the anti-debt laws or, as he contended, against great britain's infraction of the treaty. [ ] journal, h.d. ( st sess., ), . [ ] madison to jefferson, jan. , ; _writings_: hunt, ii, . [ ] see madison's vivid description of this incident; _ib._, ; also henry, ii, . [ ] _ib._ [ ] marshall to monroe, dec. , ; ms., monroe papers, lib. cong. [ ] madison to monroe, dec. , ; _writings_: hunt, ii, . "being convinced myself that nothing can be now done that will not extremely dishonor us, and embarass cong^s my wish is that the report may not be called for at all. in the course of the debates no pains were spared to disparage the treaty by insinuations ag^{st} cong^s, the eastern states, and the negociators of the treaty, particularly j. adams. these insinuations & artifices explain perhaps one of the motives from which the augmention of the foederal powers & respectability has been opposed." (madison to monroe, dec. , ; _ib._, .) [ ] curiously enough, it fell to jefferson as secretary of state to report upon, explain, and defend the measures of virginia and other states which violated the treaty of peace. (see jefferson to the british minister, may , ; _works_: ford, vii, - .) this masterful statement is one of the finest argumentative products of jefferson's brilliant mind. [ ] journal, h.d. ( ), . [ ] _ib._, . [ ] _ib._ james monroe was a member of the house at this session and voted against the first amendment and for the second. on the contrary, patrick henry voted for the first and against the second amendment. george mason voted against both amendments. so did daniel boone, who was, with thomas marshall, then a member of the virginia legislature from the district of kentucky. on the passage of the resolution, james monroe and patrick henry again swerved around, the former voting for and the latter against it. [ ] journal, h.d. ( ), . [ ] journal, h.d. ( ), . [ ] "if we are now to pay the debts due to the british merchants, what have we been fighting for all this while?" was the question the people "sometimes" asked, testifies george mason. (henry, ii, .) but the fact is that this question generally was asked by the people. nothing explains the struggle over this subject except that the people found it a bitter hardship to pay the debts, as, indeed, was the case; and the idea of not paying them at all grew into a hope and then a policy. [ ] journal, h.d. ( ), . [ ] hening, xii, . richard henry lee thought that both countries were to blame. (lee to henry, feb. , ; quoted in henry, iii, .) [ ] for an excellent statement regarding payment of british debts, see letter of george mason to patrick henry, may , , as quoted in henry, ii, - . but mason came to put it on the ground that great britain would renew the war if these debts were not paid. [ ] story, in dillon, iii, . [ ] hening, x, chaps. ii and ix, - . [ ] for a general review of the state of the country see _infra_, chaps. vii and viii. [ ] hening, xi, chap. xlii, . [ ] _ib._, chap. xxxi, . [ ] journal, h.d., . [ ] in order to group subjects such as british debts, extradition, and so forth, it is, unfortunately, essential to bring widely separated dates under one head. [ ] journal, h.d. ( st sess., ), - . [ ] journal, h.d. ( st sess., ), . [ ] _ib._, ; also, hening, xi, . [ ] "the white people who inhabited the frontier, from the constant state of warfare in which they lived with the indians, had imbibed much of their character; and learned to delight so highly in scenes of crafty, bloody, and desperate conflict, that they as often gave as they received the provocation to hostilities. hunting, which was their occupation, became dull and tiresome, unless diversified occasionally by the more animated and piquant amusement of an indian skirmish." (wirt, .) [ ] madison to jefferson, jan. , ; _writings_: hunt, ii, - . [ ] jay to jefferson, dec. , ; _jay_: johnston, iii, . [ ] hening, xi, ; and henry, ii, . [ ] madison to jefferson, jan. , ; _writings_: hunt, ii. . [ ] article viii, constitution of virginia, . [ ] madison to jefferson, jan. , ; _writings_: hunt, ii, . [ ] _ib._ [ ] journal, h.d. ( d sess., ), - . [ ] "the measure was warmly patronized by mr. henry." (madison to jefferson, jan. , ; _writings_: hunt, ii, .) the reason of henry's support of this extradition bill was not its nationalist spirit, but his friendship for the indians and his pet plan to insure peace between the white man and the red and to produce a better race of human beings; all of which henry thought could be done by intermarriages between the whites and the indians. he presented this scheme to the house at this same session and actually carried it by the "irresistible earnestness and eloquence" with which he supported it. (wirt, .) the bill provided that every white man who married an indian woman should be paid ten pounds and five pounds more for each child born of such marriage; and that if any white woman marry an indian they should be entitled to ten pounds with which the county court should buy live stock for them; that once each year the indian husband to this white woman should be entitled to three pounds with which the county court should buy clothes for him; that every child born of this indian man and white woman should be educated by the state between the age of ten and twenty-one years, etc., etc. (_ib._) this amazing bill actually passed the house on its first and second reading and there seems to be no doubt that it would have become a law had not henry at that time been elected governor, which took him "_out of the way_," to use madison's curt phrase. john marshall favored this bill. [ ] journal, h.d. ( d sess., ), . [ ] _ib._ [ ] see note , p. , _ante_. [ ] marshall to monroe, dec., ; ms. monroe papers, lib. cong.; also partly quoted in henry, ii, . [ ] see _infra_, chap. ix. [ ] one of the curious popular errors concerning our public men is that which pictures washington as a calm person. on the contrary, he was hot-tempered and, at times, violent in speech and action. it was with the greatest difficulty that he trained himself to an appearance of calmness and reserve. [ ] story, in dillon, iii, , . [ ] journal, h.d. (oct. sess., ), . [ ] _ib._, , . [ ] _pennsylvania packet_, nov. , : pa. hist. soc. [ ] _infra_, chaps. xi and xii. [ ] _pennsylvania packet_, nov. , ; also see in rowland, ii, . [ ] _infra_, chaps. ix, xii; and also washington to lafayette, feb. , ; _writings_: ford, xi, . [ ] _pennsylvania packet_, nov. , ; pa. hist. soc. [ ] journal, h.d. (oct. sess., ), . [ ] _ib._ [ ] _ib._, . [ ] _ib._ (dec., ), , . [ ] hening, xii, - . chapter vii life of the people: community isolation an infant people, spreading themselves through a wilderness occupied only by savages and wild beasts. (marshall.) of the affairs of georgia, i know as little as of those of kamskatska. (james madison, .) "lean to the right," shouted the driver of a lumbering coach to his passengers; and all the jostled and bethumped travelers crowded to that side of the clumsy vehicle. "left," roared the coachman a little later, and his fares threw themselves to the opposite side. the ruts and gullies, now on one side and now on the other, of the highway were so deep that only by acting as a shifting ballast could the voyagers maintain the stage's center of gravity and keep it from an upset.[ ] this passageway through the forest, called a "road," was the thoroughfare between philadelphia and baltimore and a part of the trunk line of communication which connected the little cities of that period. if the "road" became so bad that the coach could not be pulled through the sloughs of mud, a new way was opened in the forest; so that, in some places, there were a dozen of such cuttings all leading to the same spot and all full of stumps, rocks, and trees.[ ] the passengers often had to abandon this four-wheeled contraption altogether and walk in the mud; and were now and again called upon to put their shoulders to the wheels of the stage when the horses, unaided, were unable to rescue it.[ ] sometimes the combined efforts of horses and men could not bring the conveyance out of the mire and it would have to be left all night in the bog until more help could be secured.[ ] such was a main traveled road at the close of the revolutionary war and for a long time after the constitution was adopted. the difficulty and danger of communication thus illustrated had a direct and vital bearing upon the politics and statesmanship of the times. the conditions of travel were an index to the state of the country which we are now to examine. without such a survey we shall find ourselves floating aimlessly among the clouds of fancy instead of treading, with sure foothold, the solid ground of fact. at this point, more perhaps than at any other of our history, a definite, accurate, and comprehensive inventory of conditions is essential. for not only is this phase of american development more obscure than any other, but the want of light upon it has led to vague consideration and sometimes to erroneous conclusions. we are about to witness the fierce and dramatic struggle from which emerged the feeble beginnings of a nation that, even to-day, is still in the making; to behold the welter of plan and counterplot, of scheming and violence, of deal and trade, which finally resulted in the formal acceptance of the constitution with a certainty that it would be modified, and, to some extent, mutilated, by later amendments. we are to listen to those "debates" which, alone, are supposed to have secured ratification, but which had no more, and indeed perhaps less effect than the familiar devices of "practical politics" in bringing about the adoption of our fundamental law. since the victory at yorktown a serious alteration had taken place in the views of many who had fought hardest for independence and popular government. these men were as strong as ever for the building of a separate and distinct national entity; but they no longer believed in the wisdom or virtue of democracy without extensive restrictions. they had come to think that, at the very best, the crude ore of popular judgment could be made to enrich sound counsels only when passed through many screens that would rid it of the crudities of passion, whimsicality, interest, ignorance, and dishonesty which, they believed, inhered in it. such men esteemed less and less a people's government and valued more and more a good government. and the idea grew that this meant a government the principal purpose of which was to enforce order, facilitate business, and safeguard property. during his early years in the legislature, as has appeared, marshall's opinions were changing. washington, as we shall see, soon after peace was declared, lost much of his faith in the people; madison arrived at the opinion that the majority were unequal to the weightier tasks of popular rule; and marshall also finally came to entertain the melancholy fear that the people were not capable of self-government. indeed, almost all of the foremost men of the period now under review were brought to doubt the good sense or sound heart of the multitude. the fires of jefferson's faith still burned, and, indeed, burned more brightly; for that great reformer was in france and neither experienced nor witnessed any of those popular phenomena which fell like a drenching rain upon the enthusiasm of american statesmen at home for democratic government. this revolution in the views of men like washington, madison, and marshall was caused largely by the conduct of the masses, which, to such men, seemed to be selfish, violent, capricious, vindictive, and dangerous. the state of the country explains much of this popular attitude and disposition. the development of marshall's public ideas cannot be entirely understood by considering merely his altered circumstances and business and social connections. more important is a review of the people, their environment and condition. the extreme isolation of communities caused by want of roads and the difficulties and dangers of communication; the general ignorance of the masses; their childish credulity, and yet their quick and acute suspicion springing, largely, from isolation and lack of knowledge; their savage and narrow individualism, which resisted the establishment of a central authority and was antagonistic to any but the loosest local control; their envy and distrust of the prosperous and successful which their own economic condition strengthened, if, indeed, this circumstance did not create that sullen and dangerous state of mind--an understanding of all these elements of american life at that time is vital if we are to trace the development of marshall's thinking and explore the origins of the questions that confronted our early statesmen. the majority of the people everywhere were poor; most of them owed debts; and they were readily influenced against any man who favored payment, and against any plan of government that might compel it. also, the redemption of state and continental debts, which was a hard and ever-present problem, was abhorrent to them. much of the scrip had passed into the hands of wealthy purchasers. why, exclaimed the popular voice, should this expedient of war be recognized? discharge of such public obligations meant very definite individual taxes. it was as easy to inflame a people so situated and inclined as it was hard to get accurate information to them or to induce them to accept any reasoning that made for personal inconvenience or for public burdens. marshall could not foresee the age of railway and telegraph and universal education. he had no vision of a period when speedy and accurate information would reach the great body of our population and the common hearthstone thus become the place of purest and soundest judgment. so it is impossible to comprehend or even apprehend his intellectual metamorphosis during this period unless we survey the physical, mental, and spiritual state of the country. how the people lived, their habits, the extent of their education, their tendency of thought, and, underlying all and vitally affecting all, the means or rather want of means of communication--a knowledge of these things is essential to an understanding of the times.[ ] the absence of roads and the condition of the few that did exist were thoroughly characteristic of the general situation and, indeed, important causes of it. it becomes indispensable, then, to visualize the highways of the period and to picture the elements that produced the thinking and acting of the larger part of the people. many examples are necessary to bring all this, adequately and in just proportion, before the eye of the present. when washington, as president, was on his way to meet congress, his carriage stuck in the mud, and only after it had been pried up with poles and pulled out by ropes could the father of his country proceed on his journey;[ ] and this, too, over the principal highway of maryland. "my nerves have not yet quite recovered the shock of the _wagon_," wrote samuel johnston of a stage trip from baltimore to new york two years after our present government was established.[ ] richard henry lee objected to the constitution, because, among other things, "many citizens will be more than three hundred miles from the seat of this [national] government";[ ] and "as many assessors and collectors of federal taxes will be above three hundred miles from the seat of the federal government as will be less."[ ] the best road throughout its course, in the entire country, was the one between boston and new york; yet the public conveyance which made regular trips with relays of horses in the most favorable season of the year usually took an entire week for the journey.[ ] the stage was "shackling"; the horses' harness "made of ropes"; one team hauled the stage only eighteen miles; the stop for the night was made at ten o'clock, the start next morning at half-past two; the passengers often had to "help the coachman lift the coach out of the quagmire."[ ] over parts even of this, the finest long highway in the united states, the stage had to struggle against rocks and to escape precipices. "i knew not which to admire the most in the driver, his intrepidity or dexterity. i cannot conceive how he avoided twenty times dashing the carriage to pieces,"[ ] testifies a traveler. in central massachusetts, the roads "were intolerable" even to a new englander; and "the country was sparsely inhabited by a rude population."[ ] in rhode island not far from providence the traveler was forced to keep mounting and dismounting from his horse in order to get along at all.[ ] dr. taylor, in the massachusetts convention of , arguing for frequent elections, said that it would take less than three weeks for massachusetts members of congress to go from boston to philadelphia.[ ] farmers only a short distance from new york could not bring their produce to the city in the winter because the roads were impassable.[ ] up state, in cooper's otsego settlement, "not one in twenty of the settlers had a horse and the way lay through rapid streams, across swamps or over bogs.... if the father of a family went abroad to labour for bread, it cost him three times its value before he could bring it home."[ ] as late as , after forty thousand acres in this region had been taken up "by the poorest order of men ... there were neither roads nor bridges"; and about otsego itself there was not even "any trace of a road."[ ] where utica now stands, the opening through the wilderness, which went by the name of a road, was so nearly impassable that a horseback traveler could make no more than two miles an hour over it. rocks, stumps, and muddy holes in which the horse sank, made progress not only slow and toilsome, but dangerous.[ ] twenty days was not an unusual time for ordinary wagons, carrying adventurous settlers to the wilderness west of the alleghanies, to cross pennsylvania from philadelphia to pittsburg;[ ] and it cost a hundred and twenty dollars a ton to haul freight between these points.[ ] three years after our present government was established, twenty out of twenty-six lawsuits pending in philadelphia were settled out of court "rather than go ninety miles from phil^a for trial."[ ] talleyrand, journeying inland from the quaker city about , was "struck with astonishment" at what he beheld: "at less than a hundred and fifty miles distance from the capital," he writes, "all trace of men's presence disappeared; nature in all her primeval vigor confronted us. forests old as the world itself; decayed plants and trees covering the very ground where they once grew in luxuriance." and talleyrand testifies that the fields, only a few miles' walk out of the "cities," had been "mere wildernesses of forest" at the time the constitution was adopted.[ ] "the length and badness of the roads from hence [mount vernon] to philadelphia" made washington grumble with vexation and disgust;[ ] and jefferson wrote of the president's southern tour in : "i shall be happy to hear that no accident has happened to you in the bad roads ... that you are better prepared for those to come by lowering the hang [body] of your carriage and exchanging the coachman for two postilions ... which [are] ... essential to your safety."[ ] no more comfortable or expeditious, if less dangerous, was travel by boat on the rivers. "having lain all night in my great coat and boots in a berth not long enough for me," chronicles washington of this same presidential journey, "we found ourselves in the morning still fast aground."[ ] so difficult were the new jersey roads that the stout and well-kept harness with which washington always equipped his horses was badly broken going through new jersey in .[ ] "the roads [from richmond to new york] thro' the whole were so bad that we could never go more than three miles an hour, some times not more than two, and in the night, but one," wrote jefferson[ ] in march, . a traveler starting from alexandria, virginia, to visit mount vernon, nine miles distant, was all day on the road, having become lost, in the "very thick woods." so confusing was the way through this forest that part of this time he was within three miles of his destination.[ ] twelve years after our present government was established james a. bayard records of his journey to the capital: "tho' traveling in the mail stage ... we were unable to move at more than the rate of two or three miles an hour."[ ] throughout virginia the roads were execrable and scarcely deserved the name. the few bridges usually were broken.[ ] the best road in the state was from williamsburg, the old capital, to richmond, the new, a distance of only sixty-three miles; yet, going at highest speed, it required two days to make the trip.[ ] traveling in virginia was almost exclusively by horseback; only negroes walked.[ ] according to grigsby, the familiar vision in our minds of the picturesque coach comfortably rolling over attractive highways, with postilions and outriders, which we now picture when we think of traveling in old virginia, is mostly an historical mirage; for, says grigsby, "coaches were rarely seen. there were thousands of respectable men in the commonwealth who had never seen any other four-wheeled vehicle than a wagon and there were thousands who had never seen a wagon" at the time when the constitution was ratified.[ ] if horseback journeys were sore trials to the rider, they were desperately hard and sometimes fatal to the poor brute that carried him. in crossing unfordable rivers on the rude ferryboats, the horses' legs frequently were broken or the animals themselves often killed or drowned.[ ] from fredericksburg to alexandria the roads were "frightfully bad."[ ] as late as the wilderness was so dense just above where the city of washington now stands that davis called it "the wilds of the potomac." in most parts of virginia a person unacquainted with the locality often became lost in the forests.[ ] south of jamestown the crude and hazardous highways led through "eternal woods."[ ] a short time before the revolution, general wilkinson's father bought five hundred acres on the present site of the national capital, including the spot where the white house now stands; but his wife refused to go there from a little hamlet near baltimore where her family then lived, because it was so far away from the settlements in the backwoods of maryland.[ ] a valuable horse was stolen from a virginia planter who lived one hundred and forty miles from richmond; but, although the thief was known, the expense of going to the capital with witnesses was double the value of the horse, and so the planter pocketed his loss.[ ] it cost more to transport tobacco from augusta county, virginia, to market than the tobacco was worth, so difficult and expensive was the carriage.[ ] a sergeant in a virginia regiment during the revolutionary war, living in a part of the state which at present is not two hours' ride from the capital, petitioned the house of delegates in for payment of his arrears because he lived so far away from richmond that he had found it impossible to apply within the time allowed for the settlement of his accounts in the regular way.[ ] in the price of tobacco on the james river or the rappahannock, and in philadelphia varied from twenty to ninety-five per cent, although each of these places was "the same distance from its ultimate market,"[ ] so seriously did want of transportation affect commerce. "the trade of this country is in a deplorable condition ... the loss direct on our produce & indirect on our imports is not less than per ct.," testifies madison.[ ] only in the immediate neighborhood of philadelphia, boston,[ ] or new york, neither of which "cities" was as large as a moderate-sized inland town of to-day, were highways good, even from the point of view of the eighteenth century. in all other parts of america the roads in the present-day sense did not exist at all. very often such trails as had been made were hard to find and harder to keep after they had been found. near the close of the revolution, chastellux became tangled up in the woods on his way to visit jefferson at monticello "and travelled a long time without seeing any habitation."[ ] whoever dared to take in north carolina what, at present, would be a brief and pleasant jaunt, then had to go through scores of miles of "dreary pines" in which the traveler often lost his way and became bewildered in the maze of the forest.[ ] again, the wanderer would find himself in a desolation of swamp and wood without the hint of a highway to follow out of it; and sleeping on the ground beneath the trees of this wilderness, with only wild animals about him, was, for the ordinary traveler, not an uncommon experience.[ ] even when the road could be traced, bears would follow it, so much was it still a part of their savage domain.[ ] the little traveling possible when the weather was good was sometimes entirely suspended for days after a rain or snowfall, even out of a "city" like baltimore.[ ] six years after the constitution was adopted, talleyrand found the buildings of that ambitious town "disput[ing] the ground with trees whose stumps have not yet been removed."[ ] such were the means of communication of a people scattered over a territory of almost half a million square miles. the total population of the united states was about three and a quarter millions; the same part of the country to-day has a population of not far from fifty-five millions. including cities, and adding to these the more thickly settled portions adjoining them, there were not in the original states seven men, women, and children, all told, to the square mile. if we add kentucky, tennessee, ohio, illinois, and indiana, into which the restless settlers already were moving, the people then living in the united states were fewer than five persons to the square mile. the various little clusters of this scanty and widely separated population were almost entirely out of touch one with another. inhabitants were scattered through those far-flung stretches called the united states, but they were not a people. scarcely any communication existed between them; while such a thing as mail service was unknown to all but a comparatively few thousands. it required six days and sometimes nine to carry mail between boston and new york. as late as a letter of jefferson, then in charlottesville, virginia, to madison at philadelphia, reached the latter nine days after it was sent; and another letter between the same correspondents was eight days on the journey.[ ] yet this was unusually expeditious. one month later, on january , , madison wrote jefferson that "i have received your favor of dec^r. , but [not] till three weeks after the date of it."[ ] summer, when the post-riders made better time, seemed not greatly to increase the dispatch of mail; for it took more than a month for a letter posted in new york in that season of the year to reach an accessible virginia county seat.[ ] letters from richmond, virginia, to new york often did not arrive until two months after they were sent.[ ] but better time was frequently made and a letter between these points was, commonly, hurried through in a month.[ ] many weeks would go by before one could send a letter from an interior town in pennsylvania. "this uniontown is the most obscure spot on the face of the globe.... i have been here seven or eight weeks without one opportunity of writing to the land of the living," complains a disgusted visitor.[ ] a letter posted by rufus king in boston, february , , to madison in new york was received february ;[ ] and although anxiously awaiting news, madison had not, on february , heard that massachusetts had ratified the constitution, although that momentous event had occurred five days before.[ ] new york first learned of that historic action eight days after it was taken.[ ] but for the snail-like slowness of the post, the constitution would certainly have been defeated in the virginia convention of .[ ] transatlantic mail service was far more expeditious considering the distance; a letter from jay in london reached wolcott at philadelphia in less than eight weeks.[ ] but it sometimes required five months to carry mail across the ocean;[ ] even this was very much faster than one could travel by land in america. four weeks from cowes, england, to lynnhaven bay, virginia, was a record-breaking voyage.[ ] such letters as went through the post-offices were opened by the postmasters as a matter of course, if these officials imagined that the missives contained information, or especially if they revealed the secret or familiar correspondence of well-known public men.[ ] "by passing through the post-office they [letters] should become known to all" men, washington cautioned lafayette in .[ ] in , the first year of the post-office under our present government, there were only eighty-nine post-offices in the entire country.[ ] "as late as there were only six post-offices in new jersey and none south of trenton."[ ] yet letters were the principal means by which accounts of what was happening in one part of the country were made known to the people who lived in other sections; and this personal correspondence was by far the most trustworthy source of information, although tinctured as it naturally was by the prejudice of the writer and often nothing but report of mere rumor. newspapers were few in number and scanty in news. when the constitution was adopted, not many regularly issued newspapers were printed in the whole country. most of these were published in philadelphia, boston, new york, and in two or three of the other larger towns. only ten papers were printed in connecticut, one of the best informed and best served of all the states, and of these several soon expired;[ ] in ridgefield, with twelve hundred inhabitants, there were but four newspaper subscribers.[ ] in , virginia had only one newspaper, published at richmond twice a week.[ ] these papers carried scarcely any news and the little they published was often weeks and sometimes months old, and as uncertain as it was stale. "it is but seldom that i have an opportunity of peeping into a newspaper," wrote "agricola" to the salem (massachusetts) "gazette," september , , "and when it happens it is commonly a stale one of or weeks back; but i lately met with your fresh gazette of august th--may be i shan't see another for months to come."[ ] "newspaper paragraphs, unsupported by other testimony, are often contradictory and bewildering," wrote washington of so big, important, and exciting news as the progress of shays's rebellion.[ ] on the same day washington complained to general knox that he was "bewildered with those vague and contradictory reports which are presented in the newspapers."[ ] but what this pygmy press lacked in information it made up in personal abuse. denunciation of public men was the rule, scandal the fashion. even the mild and patient franklin was driven to bitter though witty protest. he called the press "the supremest court of judicature," which "may judge, sentence, and condemn to infamy, not only private individuals, but public bodies, &c. with or without inquiry or hearing, _at the court's discretion_." this "spanish court of inquisition," asserts franklin, works "in the dark" and so rapidly that "an honest, good citizen may find himself suddenly and unexpectedly accus'd, and in the same morning judg'd and condemn'd, and sentence pronounced against him, that he is a _rogue_ and a _villian_." "the liberty of the press," writes franklin, operates on citizens "somewhat like the _liberty of the press_ that felons have, by the common law of england, before conviction, that is, to be _press'd_ to death or hanged." "any man," says he, "who can procure pen, ink, and paper, with a press, and a huge pair of blacking balls, may commissionate himself" as a court over everybody else, and nobody has any redress. "for, if you make the least complaint of the _judge's_ [editor's] conduct, he daubs his blacking balls in your face wherever he meets you, and, besides tearing your private character to flitters marks you out for the odium of the public, as an _enemy to the liberty of the press_." franklin declared that the press of that day was supported by human depravity. searching for a remedy which would destroy the abuse but preserve the true liberty of the press, franklin finally concludes that he has found it in what he calls "the _liberty of the cudgel_." the great philosopher advised the insulted citizen to give the editor "a good drubbing"; but if the public should feel itself outraged, it should restrain itself and, says franklin, "in moderation content ourselves with tarring and feathering, and tossing them [editors] in a blanket."[ ] even jefferson was sometimes disgusted with the press. "what do the foolish printers of america mean by retailing all this stuff in our papers?--as if it were not enough to be slandered by one's enemies without circulating the slanders among his friends also."[ ] an examination of the newspapers of that period shows that most of the "news" published were accounts of foreign events; and these, of course, had happened weeks and even months before. poor, small, and bad as the newspapers of the time were, however, they had no general circulation many miles from the place where they were published. yet, tiny driblets trickled through by the belated posts to the larger towns and were hastily read at villages where the post-riders stopped along the way. by an occasional country newspaper appeared, whose only source of news from the outside world was a fugitive copy of some journal published in the city and such tales as the country editor could get travelers to tell him: whether these were true or false made not the slightest difference--everything was fish that came to his net.[ ] common schools in the present-day understanding of the term did not exist. "there was not a grammar, a geography, or a history of any kind in the school," testifies samuel g. goodrich[ ] (peter parley) of ridgefield, connecticut; and this at a time when the constitution had been adopted and our present government was in operation. "slates & pencils were unknown, paper was imported, scarce and costly"; most pupils in new england "cyphered on birch bark"; and a teacher who could compute interest was considered "great in figures."[ ] "the teacher was not infrequently a person with barely education enough to satisfy the critical requirements of some illiterate committeemen.... the pay was only from three to five dollars a month, and two months during the winter season was the usual term."[ ] the half-dozen small but excellent colleges and the few embryonic academies surrounded by forests, where educated and devout men strove to plant the seeds of institutions of learning, could not, altogether, reach more than a few hundred pupils. "_anthony mcdonald_ teaches boys and girls their grammar tongue; also geography terrestrial and celestial--old hats made as good as new." so read the sign above the door of mcdonald's "school" in virginia, a dozen years after washington was elected president.[ ] for the most part children went untaught, except in "the three r's," which, in some mysterious manner, had been handed down from father to son. yet in the back settlements it was common to find men of considerable property who could not read or write; and some of those who could make out to read did not know whether the earth was round or flat.[ ] there were but thirty students at virginia's historic college in . weld dined with president madison, of william and mary's, and several of the students were at the table. some of these young seekers after culture were without shoes, some without coats; and each of them rose and helped himself to the food whenever he liked.[ ] parts of the country, like the mohawk valley in new york, were fairly settled and well cultivated.[ ] in the more thickly inhabited parts of new england there were order, thrift, and industry.[ ] the houses of the most prosperous farmers in massachusetts, though "frequently but one story and a garret," had "their walls papered"; tea and coffee were on their tables when guests appeared; the women were clad in calicoes and the men were both farmers and artisans.[ ] yet on the road from boston to providence houses were seen already falling into decay; "women and children covered with rags."[ ] in newport, rhode island, idle men loafed on the street corners, houses were tumbling down from negligence, grass grew in the public square, and rags were stuffed into the windows.[ ] in connecticut the people were unusually prosperous; and one enthusiastic frenchman, judging that state from the appearance of the country around hartford, exclaimed: "it is really the paradise of the united states."[ ] weld found that, while the "southeast part of ... pennsylvania is better cultivated than any other part of america, yet the style of farming is ... very slovenly.... the farmer ... in england ... who rents fifty acres ... lives far more comfortably in every respect than the farmer in pennsylvania, or any other of the middle states, who owns two hundred acres."[ ] in the homes of quaker farmers near philadelphia, however, the furniture was of black walnut, the beds and linen white and clean, the food varied and excellent.[ ] yet a settler's house in the interior of pennsylvania was precisely the reverse, as the settler himself was the opposite of the industrious and methodical quaker husbandman. a log cabin lighted only by the open door, and with the bare earth for a floor, housed this pioneer and his numerous family. often he was a man who had lost both fortune and credit and therefore sought regions where neither was necessary. when neighbors began to come in such numbers that society (which to him meant government, order, and taxes) was formed, he moved on to a newer, more desolate, and more congenial spot. mostly hunter and very little of a farmer, he with his nomad brood lived "in the filth of his little cabin," the rifle or rod, and corn from the meager clearing, supplying all his wants except that of whiskey, which he always made shift to get. one idea and one alone possessed this type--the idea of independence, freedom from restraint. he was the high priest of the religion of do-as-you-like. he was the supreme individualist, the ultimate democrat whose non-social doctrine has so cursed modern america. "he will not consent to sacrifice a single natural right for all the benefits of government,"[ ] chronicles a sympathetic observer of these men. freneau, a fervent admirer of this shiftless and dissolute type, thus describes him and his home:-- /* "far in the west, a paltry spot of land, that no man envied, and that no man owned, a woody hill, beside a dismal bog-- this was your choice; nor were you much to blame; and here, responsive to the croaking frog, you grubbed, and stubbed, and feared no landlord's claim."[ ] */ nor was hostility to orderly society confined to this class. knox wrote washington that, in massachusetts, those who opposed the constitution acted "from deadly principle levelled at the existence of all government whatever."[ ] the better class of settlers who took up the "farms" abandoned by the first shunners of civilization, while a decided improvement, were, nevertheless, also improvident and dissipated. in a poor and slip-shod fashion, they ploughed the clearings which had now grown to fields, never fertilizing them and gathering but beggarly crops. of these a part was always rye or corn, from which whiskey was made. the favorite occupation of this type was drinking to excess, arguing politics, denouncing government, and contracting debts.[ ] not until debts and taxes had forced onward this second line of pioneer advance did the third appear with better notions of industry and order and less hatred of government and its obligations.[ ] in new england the out-push of the needy to make homes in the forests differed from the class just described only in that the settler remained on his clearing until it grew to a farm. after a few years his ground would be entirely cleared and by the aid of distant neighbors, cheered to their work by plenty of rum, he would build a larger house.[ ] but meanwhile there was little time for reading, small opportunity for information, scanty means of getting it; and mouth-to-mouth rumor was the settler's chief informant of what was happening in the outside world. in the part of massachusetts west of the connecticut valley, at the time the constitution was adopted, a rough and primitive people were scattered in lonesome families along the thick woods.[ ] in virginia the contrast between the well-to-do and the masses of the people was still greater.[ ] the social and economic distinctions of colonial virginia persisted in spite of the vociferousness of democracy which the revolution had released. the small group of virginia gentry were, as has been said, well educated, some of them highly so, instructed in the ways of the world, and distinguished in manners.[ ] their houses were large; their table service was of plate; they kept their studs of racing and carriage horses.[ ] sometimes, however, they displayed a grotesque luxury. the windows of the mansions, when broken, were occasionally replaced with rags; servants sometimes appeared in livery with silk stockings thrust into boots;[ ] and again dinner would be served by naked negroes.[ ] the second class of virginia people were not so well educated, and the observer found them "rude, ferocious, and haughty; much attached to gaming and dissipation, particularly horse-racing and cock-fighting"; and yet, "hospitable, generous, and friendly." these people, although by nature of excellent minds, mingled in their characters some of the finest qualities of the first estate, and some of the worst habits of the lower social stratum. they "possessed elegant accomplishments and savage brutality."[ ] the third class of virginia people were lazy, hard-drinking, and savage; yet kind and generous.[ ] "whenever these people come to blows," weld testifies, "they fight just like wild beasts, biting, kicking, and endeavoring to tear each other's eyes out with their nails"; and he says that men with eyes thus gouged out were a common sight.[ ] the generation between the birth of marshall and the adoption of the constitution had not modified the several strata of virginia society except as to apparel and manners, both of which had become worse than in colonial times. schoepf found shiftlessness[ ] a common characteristic; and described the gentry as displaying the baronial qualities of haughtiness, vanity, and idleness.[ ] jefferson divides the people into two sections as regards characteristics, which were not entirely creditable to either. but in his comparative estimate jefferson is far harsher to the southern population of that time than he is to the inhabitants of other states; and he emphasizes his discrimination by putting his summary in parallel columns. "while i am on this subject," writes jefferson to chastellux, "i will give you my idea of the characters of the several states. in the north they are in the south they are cool fiery sober voluptuary laborious indolent persevering unsteady independent independent jealous of their own liberties, zealous for their own liberties, but and just to those of others trampling on those of others interested generous chicaning candid superstitious and hypocritical without attachment or pretensions to in their religion any religion but that of the heart. "these characteristics," continues jefferson, "grow weaker and weaker by graduation from north to south and south to north, insomuch that an observing traveller, without the aid of the quadrant may always know his latitude by the character of the people among whom he finds himself." "it is in pennsylvania," jefferson proceeds in his careful analysis, "that the two characters seem to meet and blend, and form a people free from the extremes both of vice and virtue. peculiar circumstances have given to new york the character which climate would have given had she been placed on the south instead of the north side of pennsylvania. perhaps too other circumstances may have occasioned in virginia a transplantation of a particular vice foreign to its climate." jefferson finally concludes: "i think it for their good that the vices of their character should be pointed out to them that they may amend them; for a malady of either body or mind once known is half cured."[ ] a plantation house northwest of richmond grumblingly admitted a lost traveler, who found his sleeping-room with "filthy beds, swarming with bugs" and cracks in the walls through which the sun shone.[ ] the most bizarre contrasts startled the observer--mean cabins, broken windows, no bread, and yet women clad in silk with plumes in their hair.[ ] eight years after our present national government was established, the food of the people living in the shenandoah valley was salt fish, pork, and greens; and the wayfarer could not get fresh meat except at staunton or lynchburg,[ ] notwithstanding the surrounding forests filled with game or the domestic animals which fed on the fields where the forests had been cleared away. most of the houses in which the majority of virginians then lived were wretched;[ ] jefferson tells us, speaking of the better class of dwellings, that "it is impossible to devise things more ugly, uncomfortable, and happily more perishable." "the poorest people," continues jefferson, "build huts of logs, laid horizontally in pens, stopping the interstices with mud.... the wealthy are attentive to the raising of vegetables, but very little so to fruits.... the poorer people attend to neither, living principally on ... animal diet."[ ] in general the population subsisted on worse fare than that of the inhabitants of the valley.[ ] even in that favored region, where religion and morals were more vital than elsewhere in the commonwealth, each house had a peach brandy still of its own; and it was a man of notable abstemiousness who did not consume daily a large quantity of this spirit. "it is scarcely possible," writes weld, "to meet with a man who does not begin the day with taking one, two, or more drams as soon as he rises."[ ] indeed, at this period, heavy drinking appears to have been universal and continuous among all classes throughout the whole country[ ] quite as much as in virginia. it was a habit that had come down from their forefathers and was so conspicuous, ever-present and peculiar, that every traveler through america, whether native or foreign, mentions it time and again. "the most common vice of the inferior class of the american people is drunkenness," writes la rochefoucauld in .[ ] and washington eight years earlier denounced "drink which is the source of all evil--and the ruin of half the workmen in this country."[ ] talleyrand, at a farmer's house in the heart of connecticut, found the daily food to consist of "smoked fish, ham, potatoes, strong beer and brandy."[ ] court-houses built in the center of a county and often standing entirely alone, without other buildings near them, nevertheless always had attached to them a shanty where liquor was sold.[ ] at country taverns which, with a few exceptions, were poor and sometimes vile,[ ] whiskey mixed with water was the common drink.[ ] about germantown, pennsylvania, workingmen received from employers a pint of rum each day as a part of their fare;[ ] and in good society men drank an astonishing number of "full bumpers" after dinner, where, already, they had imbibed generously.[ ] the incredible quantity of liquor, wine, and beer consumed everywhere and by all classes is the most striking and conspicuous feature of early american life. in addition to the very heavy domestic productions of spirits,[ ] there were imported in , according to de warville, four million gallons of rum, brandy, and other spirits; one million gallons of wine; three million gallons of molasses (principally for the manufacture of rum); as against only one hundred and twenty-five thousand pounds of tea.[ ] everybody, it appears, was more interested in sport and spending than in work and saving. as in colonial days, the popular amusements continued to be horse-racing and cock-fighting; the first the peculiar diversion of the quality; the second that of the baser sort, although men of all conditions of society attended and delighted in both.[ ] but the horse-racing and the cock-fighting served the good purpose of bringing the people together; for these and the court days were the only occasions on which they met and exchanged views. the holding of court was an event never neglected by the people; but they assembled then to learn what gossip said and to drink together rather than separately, far more than they came to listen to the oracles from the bench or even the oratory at the bar; and seldom did the care-free company break up without fights, sometimes with the most serious results.[ ] thus, scattered from maine to florida and from the atlantic to the alleghanies, with a skirmish line thrown forward almost to the mississippi, these three and a quarter millions of men, women, and children, did not, for the most part, take kindly to government of any kind. indeed, only a fraction of them had anything to do with government, for there were no more than seven hundred thousand adult males among them,[ ] and of these, in most states, only property-holders had the ballot. the great majority of the people seldom saw a letter or even a newspaper; and the best informed did not know what was going on in a neighboring state, although anxious for the information. "of the affairs of georgia, i know as little as of those of kamskatska," wrote madison to jefferson in .[ ] but everybody did know that government meant law and regulation, order and mutual obligation, the fulfillment of contracts and the payment of debts. above all, everybody knew that government meant taxes. and none of these things aroused what one would call frantic enthusiasm when brought home to the individual. bloated and monstrous individualism grew out of the dank soil of these conditions. the social ideal had hardly begun to sprout; and nourishment for its feeble and languishing seed was sucked by its overgrown rival. community consciousness showed itself only in the more thickly peopled districts, and even there it was feeble. generally speaking and aside from statesmen, merchants, and the veterans of the revolution, the idea of a national government had not penetrated the minds of the people. they managed to tolerate state governments, because they always had lived under some such thing; but a national government was too far away and fearsome, too alien and forbidding for them to view it with friendliness or understanding. the common man saw little difference between such an enthroned central power and the royal british government which had been driven from american shores. to be sure, not a large part of the half-million men able for the field[ ] had taken much of any militant part in expelling british tyranny; but these "chimney-corner patriots," as washington stingingly described them, were the hottest foes of british despotism--after it had been overthrown. and they were the most savage opponents to setting up any strong government, even though it should be exclusively american. such were the economic, social, and educational conditions of the masses and such were their physical surroundings, conveniences, and opportunities between the close of the war for independence and the setting-up of the present government. all these facts profoundly affected the thought, conduct, and character of the people; and what the people thought, said, and did, decisively influenced john marshall's opinion of them and of the government and laws which were best for the country. during these critical years, jefferson was in france witnessing government by a decaying, inefficient, and corrupt monarchy and nobility, and considering the state of a people who were without that political liberty enjoyed in america.[ ] but the vagaries, the changeableness, the turbulence, the envy toward those who had property, the tendency to repudiate debts, the readiness to credit the grossest slander or to respond to the most fantastic promises, which the newly liberated people in america were then displaying, did not come within jefferson's vision or experience. thus, marshall and jefferson, at a time destined to be so important in determining the settled opinions of both, were looking upon opposite sides of the shield. it was a curious and fateful circumstance and it was repeated later under reversed conditions. footnotes: [ ] weld, i, - ; also, morris, ii, - . [ ] weld, i, . [ ] baily's _journal_ ( - ), . [ ] _ib._, - . [ ] professor beard, in his exposition of the economic origins of the constitution, shows that nearly all of the men who framed it were wealthy or allied with property interests and that many of them turned up as holders of government securities. (beard: _econ. i. c._, chap. v.) as a matter of fact, none but such men could have gone to the federal convention at philadelphia, so great were the difficulties and so heavy the expenses of travel, even if the people had been minded to choose poorer and humbler persons to represent them; at any rate, they did not elect representatives of their own class until the constitution was to be ratified and then, of course, only to state conventions which were accessible. [ ] weld, i, - . [ ] johnston to iredell, jan. , ; mcree, ii, . [ ] "letters of a federal farmer," no. ; ford: _p. on c._, . [ ] _ib._, no. , . [ ] de warville made a record trip from boston to new york in less than five days. (de warville, .) but such speed was infrequent. [ ] josiah quincy's description of his journey from boston to new york in . (quincy: _figures of the past_, - .) [ ] de warville, - . [ ] watson, . [ ] "the road is execrable; one is perpetually mounting and descending and always on the most rugged roads." (chastellux, .) [ ] elliott, ii, - . [ ] "in december last, the roads were so intollerably bad that the country people could not bring their forage to market, though _actually offered the cash on delivery_." (pickering to hodgdon; _pickering_: pickering, i, .) [ ] cooper, - , as quoted in hart, iii, . [ ] _ib._ [ ] watson, . along one of the principal roads of new york, as late as , president dwight discovered only "a few lonely plantations" and he "occasionally found a cottage and heard a distant sound of an axe and of a human voice. all else was grandeur, gloom, and solitude." (halsey: _old new york frontier_, .) [ ] hart, iii, . [ ] _mag. western hist._, i, . [ ] justice cushing to chief justice jay, oct. , ; _jay_: johnston, iii, . [ ] _memoirs of talleyrand_: broglie's ed., i, - . [ ] washington to jay, nov. , ; _jay_: johnston, iii, . [ ] jefferson to washington, march , ; _cor. rev._: sparks, iv, . [ ] washington's _diary_: lossing, feb. , . [ ] washington to jay, dec. , ; _jay_: johnston, iii, . [ ] jefferson to t. m. randolph, march , ; _works_: ford, vi, . [ ] weld, i, . [ ] bayard to rodney, jan. , ; _bayard papers_: donnan, ii, . [ ] schoepf, ii, . [ ] _ib._, . [ ] _ib._, . [ ] grigsby, i, . [ ] weld, i, . [ ] watson, . [ ] davis, . [ ] schoepf, ii, . [ ] wilkinson: _memoirs_, i, - . the distance which general wilkinson's mother thought "so far away" was only forty miles. [ ] schoepf, ii, . [ ] zachariah johnson, in elliott, iii, . [ ] journal, h.d. ( ), . [ ] madison to lee, july , ; _writings_: hunt, ii, - . [ ] _ib._ [ ] boston was not a "city" in the legal interpretation until . [ ] chastellux, . "the difficulty of finding the road in many parts of america is not to be conceived except by those strangers who have travelled in that country. the roads, which are through the woods, not being kept in repair, as soon as one is in bad order, another is made in the same manner, that is, merely by felling trees, and the whole interior parts are so covered that without a compass it is impossible to have the least idea of the course you are steering. the distances, too, are so uncertain as in every county where they are not measured, that no two accounts resemble each other. in the back parts of pennsylvania, maryland, and virginia, i have frequently travelled thirty miles for ten, though frequently set right by passengers and negroes." (_ib._ translator's note.) [ ] smyth, _tour of the united states_, i, - . [ ] watson, . "towards the close of the day i found myself entangled among swamps amid an utter wilderness, and my horse almost exhausted in my efforts to overtake harwood. as night closed upon me i was totally bewildered and without a vestige of a road to guide me. knowing the impossibility of retracing my steps in the dark, through the mazes i had traversed, i felt the necessity of passing the night in this solitary desert ... in no trifling apprehension of falling a prey to wild beasts before morning." (_ib._) [ ] _ib._ [ ] "i waited at baltimore near a week before i could proceed on my journey the roads being rendered impassable." (baily's _journal_ ( - ), .) [ ] _memoirs of talleyrand_: broglie's ed., i, . [ ] madison to jefferson, dec. , ; _writings_: hunt, vi, . [ ] madison to jefferson, jan. , ; _ib._, . [ ] "your favor of july having been address^d to williamsburg, instead of _orange c. ho[u]se_, did not come to hand till two days ago." (madison to livingston, aug. , ; _ib._, vi, .) [ ] lee to henry, may , ; henry, iii, . [ ] lee to henry, sept. , ; henry, iii, . [ ] ephraim douglass to gen. james irvine, ; _pa. mag. hist. and biog._, i, . [ ] madison to washington, feb. , ; and king to madison, feb. , ; _writings_: hunt, v, footnote to p. . [ ] madison to washington, feb. , : _writings_: hunt, v, . [ ] madison to washington, feb. , ; _ib._, . [ ] the randolph-clinton correspondence; see _infra_, chap. x. [ ] jay to wolcott, mailed june , and received by wolcott aug. , ; gibbs, i, . [ ] _ib._, . [ ] jefferson to short, nov. , ; _works_: ford, vi, . [ ] so notorious was this practice that important parts of the correspondence of the more prominent politicians and statesmen of the day always were written in cipher. jefferson, madison, and monroe appear to have been especially careful to take this precaution. (see washington's complaint of this tampering with the mails in a letter to fairfax, june , ; _writings_: sparks, ix, .) habitual violation of the mails by postmasters continued into the first decades of the nineteenth century. [ ] washington to lafayette, feb. , ; _writings_: ford, xi, . [ ] kettell, in _eighty years' progress_, ii, . [ ] _pa. mag. hist. and biog._, ix, . [ ] _am. ant. soc. pubs._, xxiii, part ii, - . [ ] goodrich, i, . [ ] schoepf, ii, ; see note, _ib._ even this journal died for want of subscribers. [ ] salem _gazette_, sept. , ; hist. col., topsfield (mass.) hist. soc., iii, . [ ] washington to humphreys, dec. , ; _writings_: ford, xi, - . [ ] washington to general knox, dec. , ; _ib._, - . [ ] _writings_: smyth, x, _et seq._ this arraignment of the press by america's first journalist was written when franklin was eighty-three years old and when he was the most honored and beloved man in america, washington only excepted. it serves not only to illuminate the period of the beginning of our government, but to measure the vast progress during the century and a quarter since that time. [ ] jefferson to mrs. adams, paris, sept. , ; _works_: ford, iv, . [ ] "country printer," in freneau, iii, . freneau thus describes the country editor of that day:-- "three times a week, by nimble geldings drawn, a stage arrives; but scarcely deigns to stop. unless the driver, far in liquor gone, has made some business for the black-smith-shop; then comes this printer's harvest-time of news, welcome alike from christians, turks, or jews. "each passenger he eyes with curious glance, and, if his phiz be mark'd of courteous kind, to conversation, straight, he makes advance, hoping, from thence, some paragraph to find, some odd adventure, something new and rare, to set the town a-gape, and make it stare. "all is not truth ('tis said) that travellers tell-- so much the better for this man of news; for hence the country round, that know him well, will, if he prints some lies, his lies excuse. earthquakes, and battles, shipwrecks, myriads slain-- if false or true--alike to him are gain. "ask you what matter fills his various page? a mere farrago 'tis, of mingled things; whate'er is done on madam terra's stage he to the knowledge of his townsmen brings: one while, he tells of monarchs run away; and now, of witches drown'd in buzzard's bay. "some miracles he makes, and some he steals; half nature's works are giants in his eyes; much, very much, in wonderment he deals,-- new-hampshire apples grown to pumpkin size, pumpkins almost as large as country inns, and ladies bearing, each,--three lovely twins." freneau was himself a country printer in new jersey, after editing the _national gazette_ in philadelphia. thus the above description was from his personal experience and in a town in a thickly settled part, on the main road between new york and philadelphia. [ ] goodrich, i, . [ ] a letter from salem town about - ; in _american journal of education_, xiii, . [ ] van santvoord: _memoirs of eliphalet nott_, . [ ] davis, . [ ] "many cannot read or write, and many that can, know nothing of geography and other branches. the country is too thinly settled to carry out a system of common schools." (howe, , speaking of western virginia about .) [ ] weld, i, . but president tyler says that the boys weld saw were grammar-school pupils. [ ] watson, . [ ] chastellux, - . [ ] de warville, - . [ ] _ib._, and . [ ] _ib._, . all travelers agree as to the wretched condition of rhode island; and that state appears to have acted as badly as it looked. "the ... infamous [scenes] in rhode island have done inexpressable injury to the republican character," etc. (madison to pendleton, feb. , ; _writings_: hunt, ii, .) [ ] de warville, . [ ] weld, i, . [ ] de warville, - . [ ] de warville, and . see la rochefoucauld's description of this same type of settler as it was several years after de warville wrote. "the dwellings of the new settlers ... consist of huts, with roofs and walls which are made of bark and in which the husband, wife and children pass the winter wrapped up in blankets.... salt pork and beef are the usual food of the new settlers; their drink is water and whiskey." (la rochefoucauld, i, - .) [ ] freneau, iii, . [ ] knox to washington, feb. , ; _writings_: ford, xi, footnote to . and see _infra_, chap. viii. [ ] de warville, . in , la rochefoucauld speaks of "the credulity and ignorance of the half-savage sort of people who inhabit the back settlements." (la rochefoucauld, i, .) [ ] "a relaxation is observable among all orders of society. drunkenness is the prevailing vice, and with few exceptions, the source of all other evils. a spirit, or rather a habit, of equality is diffused among this people as far as it possibly can go.... the inhabitants exhibit to strangers striking instances both of the utmost cleanliness and excessive nastiness," (la rochefoucauld, i, .) during washington's second term as president, la rochefoucauld thus describes manners in western pennsylvania: "they are much surprised at a refusal to sleep with one, two, or more men, in the same bed, or between dirty sheets, or to drink after ten other persons out of the same dirty glass.... whiskey mixed with water is the common drink in the country." (_ib._) [ ] _ib._, i, - . see _infra_, note , pp. - . [ ] watson, . [ ] "you see [in maryland and virginia] real misery and apparent luxury insulting each other." (de warville, .) [ ] chastellux, , and translator's note. [ ] anburey, ii, - . [ ] de warville, . [ ] "soon after entering virginia, and at a highly respectable house, i was shocked ... at seeing for the first time, young negroes of both sexes, from twelve even to fifteen years old, not only running about the house but absolutely tending table, as naked as they came into the world.... several young women were at the table, who appeared totally unmoved." (watson, .) watson's statement may perhaps be questionable; a livelier description, however, was given with embellishments, some years later. (see translator's note to chastellux, ; and see schoepf, ii, .) [ ] anburey, ii, - . [ ] _ib._, - . [ ] weld, i, . see weld's description of "gouging." and see fithian's interesting account; fithian, - . [ ] schoepf, ii, . [ ] _ib._, - . [ ] jefferson to chastellux, sept. , ; _thomas jefferson correspondence_, bixby collection: ford, ; and see jefferson to donald, july , ; jefferson's _writings_: washington, ii, , where jefferson says that the qualities of virginians are "indolence, extravagance, and infidelity to their engagements." [ ] weld, i, . [ ] schoepf, ii, . this strange phenomenon was witnessed everywhere, even in a place then so far remote as maine. "elegant women come out of log or deal huts [in maine] all wearing fashionable hats and head dresses with feathers, handsome cloaks and the rest of their dress suitable to this." (la rochefoucauld, ii, .) [ ] _ib._, ; and weld, i, , . the reports of all travelers as to the want of fresh meat in the valley are most curious. that region was noted, even in those early days, for its abundance of cattle. [ ] _ib._, . [ ] "notes on virginia": jefferson; _works_: ford, iv, ; and see weld, i, , for similar diet in pennsylvania. [ ] _ib._, - . [ ] weld, i, . "sigars and whiskey satisfy these good people who thus spend in a quarter of an hour in the evening, the earnings of a whole day. the landlord of the inn has also a distillery of whiskey," writes la rochefoucauld, in , of the mountain people of virginia. he thus describes the houses and people living in the valley towards staunton: "the habitations are in this district more numerous than on the other side of the blue mountains, but the houses are miserable; mean, small log houses, inhabited by families which swarm with children. there exists here the same appearance of misery as in the back parts of pennsylvania." (la rochefoucauld, iii, - .) [ ] "it took a good deal of new england rum to launch a ton schooner ... to raise a barn ... or to ordain a regular minister.... workingmen in the fields, in the woods, in the mills and handling logs and lumber on the river were supplied with regular rations of spirits." (maine hist. soc. col. ( d series), vi, - .) the rich people of boston loved picnic parties in the near-by country, at which was served "punch, warm and cold, before dinner; excellent beef, spanish and bordeaux wines, cover their tables ... spruce beer, excellent cyder, and philadelphia porter precede the wines." (de warville, .) this inquiring frenchman called on hancock, but found that he had a "marvelous gout which dispenses him from all attentions and forbids the access to his house." (_ib._, .) as to new england country stores, "you find in the same shop, hats, nails, liquors." (_ib._, .) [ ] la rochefoucauld, iv, . [ ] washington to green (an employee) march , ; _writings_: ford, xi, . [ ] _memoirs of talleyrand_: broglie's ed., i, footnote to ; and see talleyrand's description of a brandy-drinking bout at this house in which he participated. [ ] schoepf, ii, . [ ] watson, . [ ] chastellux, ; see also . [ ] la rochefoucauld, iv, . [ ] _ib._, . [ ] see _infra_, ii, chap. ii. [ ] de warville, . [ ] watson, - . "the indolence and dissipation of the middling and lower classes of white inhabitants in virginia are such as to give pain.... horse-racing, cock-fighting, and boxing-matches are standing amusements, for which they neglect all business." (_ib._; and see chastellux, , translator's note. also see chastellux's comments on the economic conditions of the virginians, - .) for habits of virginians nearly twenty years after watson wrote, see la rochefoucauld, iii, - . [ ] "the session assembles here, besides the neighboring judges, lawyers, and parties whose causes are to be tried, numbers of idle people who come less from desire to learn what is going forward than to drink together," says la rochefoucauld; and see his picturesque description of his arrival at the close of court day at goochland court-house. (la rochefoucauld, iii, - .) [ ] one man to every five men, women, and children, which is a high estimate. [ ] madison to jefferson, aug. , ; _writings_: hunt, ii, . [ ] randolph in the virginia constitutional convention estimated that the colonies could have put four hundred thousand soldiers in the field. (elliott, iii, - .) [ ] it is a curious fact, however, that in his journey through france jefferson observed no bad conditions, but, on the whole, his careful diary states that he found the people "well clothed and well fed," as professor hazen expresses it. for impartial treatment of this subject see hazen, - . chapter viii popular antagonism to government mankind, when left to themselves, are unfit for their own government. (george washington, .) there are subjects to which the capacities of the bulk of mankind are unequal and on which they must and will be governed by those with whom they happen to have acquaintance and confidence. (james madison, .) i fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself. (john marshall, .) "government, even in its best state," said mr. thomas paine during the revolution, "is but a necessary evil."[ ] little as the people in general had read books of any kind, there was one work which most had absorbed either by perusal or by listening to the reading of it; and those who had not, nevertheless, had learned of its contents with applause. thomas paine's "common sense," which washington and franklin truly said did so much for the patriot cause,[ ] had sown dragon's teeth which the author possibly did not intend to conceal in his brilliant lines. scores of thousands interpreted the meaning and philosophy of this immortal paper by the light of a few flashing sentences with which it began. long after the british flag disappeared from american soil, this expatriated englishman continued to be the voice of the people;[ ] and it is far within the truth to affirm that thomas paine prepared the ground and sowed the seed for the harvest which thomas jefferson gathered. "government, like dress, is the badge of lost innocence; the palaces of kings are built on the ruins of the bowers of paradise." and again, "society is produced by our wants, and government by our wickedness."[ ] so ran the flaming maxims of the great iconoclast; and these found combustible material. indeed, there was, even while the patriots were fighting for our independence, a considerable part of the people who considered "all government as dissolved, and themselves in a state of absolute liberty, where they wish always to remain"; and they were strong enough in many places "to prevent any courts being opened, and to render every attempt to administer justice abortive."[ ] zealous bearers, these, of the torches of anarchy which paine's burning words had lighted. was it not the favored of the earth that government protected? what did the poor and needy get from government except oppression and the privilege of dying for the boon? was not government a fortress built around property? what need, therefore, had the lowly for its embattled walls? here was excellent ammunition for the demagogue. a person of little ability and less character always could inflame a portion of the people when they could be assembled. it was not necessary for him to have property; indeed, that was a distinct disadvantage to the jack cades of the period.[ ] a lie traveled like a snake under the leaves and could not be overtaken;[ ] bad roads, scattered communities, long distances, and resultant isolation leadened and delayed the feet of truth. nothing was too ridiculous for belief; nothing too absurd to be credited. a baptist preacher in north carolina was a candidate for the state convention to pass upon the new national constitution, which he bitterly opposed. at a meeting of backwoodsmen in a log house used for a church, he told them in a lurid speech that the proposed "federal city" (now the district of columbia) would be the armed and fortified fortress of despotism. "'this, my friends,' said the preacher, 'will be walled in or fortified. here an army of , , or, perhaps , men, will be finally embodied and will sally forth, and enslave the people who will be gradually disarmed.'" a spectator, who attempted to dispute this statement, narrowly escaped being mobbed by the crowd. everything possible was done to defeat this ecclesiastical politician; but the people believed what he said and he was elected.[ ] so bizarre an invention as the following was widely circulated and generally believed as late as : john adams, it was said, had arranged, by intermarriage, to unite his family with the royal house of great britain, the bridegroom to be king of america. washington, attired in white clothing as a sign of conciliation, called on adams and objected; adams rebuffed him. washington returned, this time dressed in black, to indicate the solemnity of his protest. adams was obdurate. again the father of his country visited the stubborn seeker after monarchical relationship, this time arrayed in full regimentals to show his earnestness; adams was deaf to his pleas. thereupon the aged warrior drew his sword, avowing that he would never sheathe it until adams gave up his treasonable purpose; adams remained adamant and the two parted determined enemies.[ ] such are examples of the strange tales fed to the voracious credulity of the multitude. the attacks on personal character, made by setting loose against public men slanders which flew and took root like thistle seed, were often too base and vile for repetition at the present day, even as a matter of history; and so monstrous and palpably untruthful that it is difficult to believe they ever could have been circulated much less credited by the most gossip-loving. things, praiseworthy in themselves, were magnified into stupendous and impending menaces. revolutionary officers formed "the society of the cincinnati" in order to keep in touch with one another, preserve the memories of their battles and their campfires, and to support the principles for which they had fought.[ ] yet this patriotic and fraternal order was, shouted the patriots of peace, a plain attempt to establish an hereditary nobility on which a new tyranny was to be builded. jefferson, in paris, declared that "the day ... will certainly come, when a single fibre of this institution will produce an hereditary aristocracy which will change the form of our governments [articles of confederation] from the best to the worst in the world."[ ] Ædanus burke,[ ] one of the justices of the supreme court of south carolina, wrote that the society of the cincinnati was "deeply planned"; it was "an hereditary peerage"; it was "planted in a fiery hot ambition, and thirst for power"; "its branches will end in tyranny ... the country will be composed only of two ranks of men, the patricians, or nobles, and the rabble."[ ] in france, mirabeau was so aroused by burke's pamphlet that the french orator wrote one of his own. mirabeau called the cincinnati "that nobility of barbarians, the price of blood, the off-spring of the sword, the fruit of conquest." "the distinction of celts and ostrogoths," exclaimed the extravagant frenchman, "are what they claim for their inheritance."[ ] the "independent chronicle" of boston was so excited that it called on "legislators, governors, and magistrates _and their_ electors" to suppress the cincinnati because it "is concerted to establish a complete and perpetual _personal_ discrimination between" its members "and the whole remaining body of the people who will be styled plebeians."[ ] john marshall was a member of this absurdly traduced patriotic fraternity. so were his father and fellow officers of our war for independence. washington was its commander. were the grotesque charges against these men the laurels with which democracy crowned those who had drawn the sword for freedom? was this the justice of liberty? was this the intelligence of the masses? such must have been the queries that sprang up in the minds of men like marshall. and, indeed, there was sound reason for doubt and misgiving. for the nightmares of men like burke and mirabeau were pleasant dreams compared with the horrid visions that the people conjured. [illustration] nor did this popular tendency to credit the most extraordinary tale, believe the most impossible and outrageous scandal, or accept the most impracticable and misshapen theory, end only in wholesome hatred of rank and distinction. among large numbers there was the feeling that equality should be made real by a general division of property. three years after peace had been established, madison said he "strongly suspected" that many of the people contemplated "an abolition of debts public & private, and a new division of property."[ ] and jay thought that "a reluctance to taxes, an impatience of government, a rage for property, and little regard to the means of acquiring it, together with a desire for equality in all things, seem to actuate the mass of those who are uneasy in their circumstances."[ ] the greed and covetousness of the people is also noted by all travelers.[ ] very considerable were the obligations "public and private" which madison wrote his father that he "strongly suspected" a part of the country intended to repudiate. the public debt, foreign and domestic, of the confederation and the states, at the close of the revolutionary war, appeared to the people to be a staggering sum.[ ] the private debt aggregated a large amount.[ ] the financial situation was chaos. paper money had played such havoc with specie that, in virginia in , as we have seen, there was not enough gold and silver to pay current taxes.[ ] the country had had bitter experience with a fictitious medium of exchange. in virginia by the notes issued by congress "fell to for ," records jefferson, "and then expired, as it had done in other states, without a single groan."[ ] later on, foreigners bought five thousand dollars of this continental scrip for a single dollar of gold or silver.[ ] in philadelphia, toward the end of the revolution, the people paraded the streets wearing this make-believe currency in their hats, with a dog tarred and covered with paper dollars instead of feathers.[ ] for land sold by jefferson before paper currency was issued he "did not receive the money till it was not worth oak leaves."[ ] most of the states had uttered this fiat medium, which not only depreciated and fluctuated within the state issuing it, but made trade between citizens of neighboring states almost impossible. livingston found it a "loss to shop it in new york with [new] jersey money at the unconscionable discount which your [new york] brokers and merchants exact; and it is as damnifying to deal with our merchants here [new jersey] in that currency, since they proportionably advance the price of their commodities."[ ] fithian in virginia records that: "in the evening i borrowed of _ben carter_ /--i have plenty of money with me but it is in bills of philadelphia currency and will not pass at all here."[ ] virginia had gone through her trial of financial fiction-for-fact, ending in a law fixing the scale of depreciation at forty to one, and in other unique and bizarre devices;[ ] and finally took a determined stand against paper currency.[ ] although virginia had burned her fingers, so great was the scarcity of money that there was a formidable agitation to try inflation again.[ ] throughout the country there once more was a "general rage for paper money."[ ] bad as this currency was, it was counterfeited freely.[ ] such coin as existed was cut and clipped until washington feared that "a man must travel with a pair of money scales in his pocket, or run the risk of receiving gold of one fourth less by weight than it counts."[ ] if there was not money enough, let the government make more--what was a government for if not for that? and if government could not make good money, what was the good of government? courts were fine examples of what government meant--they were always against the common people. away with them! so ran the arguments and appeals of the demagogues and they found an answer in the breasts of the thoughtless, the ignorant, and the uneasy. this answer was broader than the demand for paper money, wider than the protest against particular laws and specific acts of administration. this answer also was, declared general knox, "that the property of the united states ... ought to be the common property of all. and he that attempts opposition to this creed is an enemy to equity and justice, and ought to be swept from off the face of the earth." knox was convinced that the discontented were "determined to annihilate all debts, public and private."[ ] ideas and purposes such as these swayed the sixteen thousand men who, in , followed daniel shays in the popular uprising in massachusetts against taxes, courts, and government itself.[ ] "the restlessness produced by the uneasy situation of individuals, connected with lax notions concerning public and private faith, and erroneous[ ] opinions which confound liberty with an exemption from legal control, produced ... unlicensed conventions, which, after voting on their own constitutionality, and assuming the name of the people, arrayed themselves against the legislature," was john marshall's summary of the forces that brought about the new england rebellion. the "army" of lawlessness, led by shays, took the field, says marshall, "against taxes, and against the administration of justice; and the circulation of a depreciated currency was required, as a relief from the pressure of public and private burdens, which had become, it was alleged, too heavy to be borne. against lawyers and courts the strongest resentments were manifested; and to such a dangerous extent were these dispositions indulged, that, in many instances, tumultuous assemblages of people arrested the course of law, and restrained the judges from proceeding in the execution of their duty." "the ordinary recourse to the power of the country was found insufficient protection," records marshall, "and the appeals made to reason were attended with no beneficial effect. the forbearance of the government was attributed to timidity rather than moderation, and the spirit of insurrection appeared to be organized into a regular system for the suppression of courts."[ ] such was marshall's analysis of the northern convulsion; and thus was strengthened in him that tendency of thought started at valley forge, and quickened in the virginia house of delegates. "it rather appears to me," wrote david humphries to washington, in an attempt to explain the root of the trouble, "that there is a licentious spirit prevailing among many of the people; a levelling principle; and a desire of change; with a wish to annihilate all debts, public and private."[ ] unjust taxes were given as the cause of the general dislike of government, yet those who composed the mobs erupting from this crater of anarchy, now located in new england, paid few or no taxes. "high taxes are the ostensible cause of the commotions, but that they are the real cause is as far remote from truth as light from darkness," asserts knox. "the people who are the insurgents have never paid any, or but very little taxes," testifies this stanch revolutionary officer. "but," continues knox, "they see the weakness of the government. they feel at once their own poverty, compared with the opulent, and their own force, and they are determined to make use of the latter, in order to remedy the former."[ ] this condition brought to a head a distrust of the good sense, justice, and moderation of the people, which had been forming in the minds of many of the best and ablest men of the time.[ ] "the knaves and fools of this world are forever in alliance," was the conclusion reached in [ ] by jay, who thought that the people considered "liberty and licentiousness" as the same thing.[ ] the patient but bilious secretary of state felt that "the wise and the good never form the majority of any large society, and it seldom happens that their measures are uniformly adopted, or that they can always prevent being overborne themselves by the strong and almost never-ceasing union of the wicked and the weak."[ ] the cautious madison was equally doubtful of the people: "there are subjects to which the capacities of the bulk of mankind are unequal and on which they must and will be governed by those with whom they happen to have acquaintance and confidence" was madison's judgment.[ ] washington, black with depression, decided and bluntly said "that mankind, when left to themselves, are unfit for their own government." lee had suggested that washington use his "influence" to quiet the disorders in new england; but, flung back washington, "_influence_ is no _government_. let us have one by which our lives, liberties, and properties will be secured, or let us know the worst at once.... to be more exposed in the eyes of the world, and more contemptible than we already are, is hardly possible."[ ] "no morn ever dawned more favorably than ours did; and no day was ever more clouded than the present.... we are fast verging to anarchy,"[ ] cried the great captain of our war for liberty. the wings of washington's wrath carried him far. "good god!" cried he, "who, besides a tory, could have foreseen, or a briton predicted" the things that were going on! "the disorders which have arisen in these states, the present prospect of our affairs ... seems to me to be like the vision of a dream. my mind can scarcely realize it as a thing in actual existence.... there are combustibles in every state, which a spark might set fire to."[ ] marshall echoed his old commander's views. the dreams of his youth were fading, his confidence in the people declining. he records for us his altered sentiments: "these violent, i fear bloody, dissensions in a state [massachusetts] i had thought inferior in wisdom and virtue to no one in the union, added to the strong tendency which the politics of many eminent characters among ourselves have to promote private and public dishonesty, cast a deep shade over the bright prospect which the revolution in america and the establishment of our free governments had opened to the votaries of liberty throughout the globe. i fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself."[ ] thus wrote marshall in , when he was not yet thirty-two years old. but jefferson in paris was beholding a different picture that strengthened the views which he and marshall held in common when america, in arms, challenged great britain. "the spirit of resistance to government is so valuable on certain occasions that i wish it to be always kept alive. it will often be exercised when wrong, but better so than not to be exercised at all. i like a little rebellion now & then. it is like a storm in the atmosphere." so wrote jefferson after the massachusetts insurrection had been quelled.[ ] the author of our declaration of independence was tasting the delights of the charming french capital at this time, but he also was witnessing the shallowness and stupidity of the peculiarly weak royalty and nobility; and although it was this same royal government that had aided us with men and money in our struggle to throw off the yoke of england, jefferson's heart grew wrathful against it and hot for popular rule in france. yet in the same apostrophe to rebellion, jefferson declares that the french people were too shallow for self-rule. "this [french] nation," writes jefferson, "is incapable of any serious effort but under the word of command."[ ] after having had months to think about it, this enraptured enthusiast of popular upheaval spread his wings and was carried far into crimson skies. "can history produce an instance of rebellion so honourably conducted?" exclaimed jefferson, of the massachusetts anarchical outburst, nearly a year after it had ended; and continued thus:-- "god forbid! we should ever be years without such a rebellion.... what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms!... what signify a few lives lost in a century or two? the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is its natural manure."[ ] thus did his contact with a decadent monarchy on the one hand and an enchanting philosophy on the other hand, help to fit him for the leadership of american radicalism. no better training for that mission could have been afforded. french thought was already challenging all forms of existing public control; it was a spirit gamaliel which found in jefferson an eager saul at its feet; and american opinion was prepared for its doctrines. in the united states general dislike and denunciation of the established governments had uncovered the feeling against government itself which lay at the root of opposition to any stronger one. the existing american system was a very masterpiece of weakness. the so-called federal government was like a horse with thirteen bridle reins, each held in the hands of separate drivers who usually pulled the confused and powerless beast in different directions. congress could make treaties with foreign nations; but each of the states could and often did violate them at will. it could borrow money, but could not levy taxes or impose duties to pay the debt. congress could get money only by making humble requests, called "requisitions," on the "sovereign" commonwealths. it had to depend upon the whims of the various states for funds to discharge principal and interest of public obligations; and these springs of revenue, when not entirely dry, yielded so little that the federal establishment was like to die of financial thirst.[ ] the requisitions of congress upon the various states for money to pay the national obligations to foreign creditors were usually treated with neglect and often with contempt by those jealous and pompous "sovereignties." "requisitions are a perfect nullity where thirteen sovereign, independent, disunited states are in the habit of discussing and refusing compliance with them at their option. requisitions are actually little better than a jest and a by-word throughout the land. if you tell the legislatures they have violated the treaty of peace, and invaded the prerogatives of the confederacy, they will laugh in your face."[ ] thus raged washington. "congress cannot command money" even to redeem americans held in slavery in algiers,[ ] testified the powerless and despondent secretary of state. indeed, congress amounted to so little that the delegates from many states often refused to attend.[ ] though debts were great and financial confusion maddening, they furnished no solid excuse for the failure of the states to enable congress to preserve american honor by the payment of our admitted national debt. jay reviewed the situation and showed that "the resources of the country ... notwithstanding all appearances to the contrary, are abundant.... our country is fertile, abounding in useful productions, and those productions in demand and bearing a good price."[ ] the general opinion appears to have been that the people did not want to support the government. "the treasury is empty, though the country abounds in resources, and our people are far more unwilling than unable to pay taxes," wrote jay, early in .[ ] madison excused his support of the bill authorizing tobacco to be taken for specie in payment of taxes, upon the ground that it "could not be rejected without ... exciting some worse project of a popular cast";[ ] and "by a fear that some greater evil under the name of relief to the people would be substituted."[ ] debt "made it extremely inconvenient to most people to submit to a regular government," was the conclusion rutledge finally reached.[ ] but, whatever the cause, the states did not act. washington thought it a combination of the scheming of demagogues and the ignorance and dishonesty of the people. "i think there is more wickedness than ignorance mixed in our councils.... ignorance and design are difficult to combat.... to be so fallen! so lost!... virtue, i fear has in a great degree taken its departure from our land and the want of a disposition to do justice is the source of the national embarrassments; for, whatever guise or colorings are given to them, this i apprehend is the origin of the evils we now feel."[ ] such was washington's cry of despair four years after he had wrested american liberty from great britain. look where one will among the class of men of whom washington was the highest representative, one finds that they believed the fountain head of the country's desperate conditions to be in the people themselves. jay put this opinion in a nutshell when he said, "the mass of men are neither wise nor good."[ ] not that these leaders despaired that an american people would finally be evolved who should realize the exalted expectations of the patriot leaders of the revolution; not that out of the flux of popular heedlessness and dishonor, indifference and disorder, idleness and avarice, the nobler qualities of human nature would not, in the end, bring forth a nation and rule it for the happiness and well-being of its people. but they thought that only a strong government could fashion the clay and breathe into its nostrils the breath of life. "virtue, like the other resources of a country, can only be drawn to a point and exerted by strong circumstances ably managed, or a strong government ably administered," said jay.[ ] the shield of all this turmoil and baseness was the state governments. "their unreasonable jealousy of that body [congress] and of one another ... will, if there is not a change in the system, be our downfall as a nation," exclaimed washington only a few months after peace had been established.[ ] it was the states, he declared, which made the federal establishment "a half-starved, limping government, that appears to be always moving upon crutches and tottering at every step."[ ] it was the states which always were thwarting every plan for the general welfare; the states which were forever impairing the national obligations; the states which bound hand and foot the straw man of the central power, clothed it in rags and made it a mere scarecrow of government. and it was state pride, prejudice, and ignorance which gave provincial demagogues their advantage and opportunity. the state governments were the "people's" governments; to yield state "sovereignty" was to yield the "people's" power over their own affairs, shouted the man who wished to win local prominence, power, and office. those who did not want to pay taxes and who disliked much government of any kind felt that they could make shift with mere state establishments.[ ] "a thirst for power, and the bantling, i had liked to have said monster for sovereignty, which have taken such fast hold of the states individually, will, when joined by the many whose personal consequence in the control of state politics will in a manner be annihilated, form a strong phalanx against"[ ] the national constitution, prophesied the leader of the revolution. but it was not alone the powerlessness of the federal government to keep the national faith, plighted by solemn treaties with foreign governments; or to uphold the national honor by paying debts made to win american independence, that wrought that bloodless revolution[ ] which produced the constitution. nor was it the proud and far-seeing plans of a few great minds whose heart's desire was to make the american people a nation. finance, commerce, and business assembled the historic philadelphia convention; although it must be said that statesmanship guided its turbulent councils. the senseless and selfish nagging at trade in which the states indulged, after peace was declared, produced a brood of civil abuses as noisome as the military dangers which state control of troops had brought forth during the revolution. madison truly said that "most of our political evils may be traced up to our commercial ones."[ ] the states passed tariff laws against one another as well as against foreign nations; and, indeed, as far as commerce was concerned, each state treated the others as foreign nations.[ ] there were retaliations, discriminations, and every manner of trade restrictions and impediments which local ingenuity and selfishness could devise. the idea of each state was to keep money from going outside its borders into other states and to build up its own business and prosperity at the expense of its neighbors.[ ] states having no seaports were in a particularly hard case. madison picturesquely describes their unhappy plight: "new jersey placed between phil^a & n. york, was likened to a cask tapped at both ends; and n. carolina, between virg^a & s. carolina to a patient bleeding at both arms."[ ] merchants and commercial bodies were at their wits' end to carry on business and petitioned for a general power over commerce.[ ] the commercial view, as stated by madison, was that "the national government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports & imports, the fixing the terms and forms of naturalization, &c., &c." madison then lays down this extreme nationalist principle as the central article of his political faith: "over and above this positive power, a negative in _all cases whatsoever_ on the legislative acts of the states, as heretofore exercised by the kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the state jurisdictions. without this defensive power, every positive power that can be given on paper will be evaded & defeated. the states will continue to invade the national jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken views of interest."[ ] too much emphasis cannot be put upon the fact that the mercantile and financial interests were the weightiest of all the influences for the constitution; the debtors and agricultural interests the strongest groups against it. it deserves repetition, for a proper understanding of the craft and force practiced by both sides in the battle over ratification, that those who owed debts were generally against the constitution and practically all to whom debts were due were for the new government. "i have little prospect of bringing banks [a debtor] to terms as the law of this state now stands," wrote a virginia agent of a creditor, "but i hope when the new federal constitution is adopted that the laws will be put upon a better footing.... three fourths of the people that oppose it [the constitution] are those that are deeply in debt & do not wish to pay."[ ] london merchants were very anxious for a new order of things. "i hope ere long your federal government will be established, and that honest men will again have the assendency in your country, for without such a change it must ever remain a poor place to live in," was the opinion of a business man living in the british capital.[ ] a few weeks after virginia ratified the constitution, minton collins reported to his principal about a person named banks, who, says collins, "begins to be a little alarmed from the adoption of the federal constitution. i hope it will alarm every such r[asca]l. he had run his rig long enough for he boasts of being worth from , £ to , pounds; this is not bad for a man that six years ago could scarcely raise a suit of clothes to his back."[ ] marshall was becoming a prosperous lawyer and his best clients were from the mercantile interests. his family relationships were coming to be more and more with the property classes. he had no ambition for a political career, which might have given to his thinking and conclusions a "more popular cast," to use madison's contemptuous phrase. thus marshall's economic and political convictions resulting from experience and reasoning were in harmony with his business connections and social environment. undoubtedly he would have taken the same stand had none of these circumstances developed; his constructive mind, his conservative temperament, his stern sense of honor, his abhorrence of disorder and loose government, his army experience, his legislative schooling, his fidelity to and indeed adoration of washington, would have surely placed him on the side of the constitution. still, the professional and social side of his life should not be ignored, if we are to consider fully all the forces which then surrounded him, and which, with ever-growing strength, worked out the ultimate marshall. jefferson, in france, experienced only the foreign results of the sharp and painful predicament which john marshall was sadly witnessing in america. while not busy with the scholars and society of the french capital, jefferson had been engaged in the unhappy official task of staving off our french creditors and quieting, as well as he could, complaints of our trade regulations and other practices which made it hard and hazardous for the french to do business with us.[ ] he found that "the nonpaiment of our debts and the want of energy in our government ... discourage a connection with us";[ ] and "want of punctuality & a habitual protection of the debtor" prevented him from getting a loan in france to aid the opening of the potomac.[ ] all this caused even jefferson to respond to the demand for unifying the american government as to foreign nations; but he would not go further. "make the states one as to every thing connected with foreign nations, & several as to everything purely domestic," counseled jefferson while the constitutional convention was quarreling at philadelphia.[ ] but he did not think badly of the weakness of the articles of confederation which so aroused the disgust, anger, and despair of washington, madison, jay, and other men of their way of thinking, who were on the ground. "with all the imperfections of our present government [articles of confederation]," wrote jefferson in paris, in , "it is without comparison the best existing or that ever did exist";[ ] and he declared to one of his french friends that "the confederation is a wonderfully perfect instrument."[ ] jefferson found but three serious defects in the articles of confederation: no general rule for admitting states; the apportionment of the state's quota of money upon a land instead of a population basis; and the imperfect power over treaties, import duties, and commerce.[ ] he frankly said: "i am not a friend to a very energetic government"; and he thought that "our governments will remain virtuous for many centuries"--but added with seer-like vision: "as long as ... there shall be vacant lands in america."[ ] jefferson wished the united states "to practice neither commerce nor navigation, but to stand with respect to europe precisely on the footing of china."[ ] far from thinking that the low state of our credit was a bad thing for us, he believed that its destruction would work an actual benefit to america. "good will arise from the destruction of our credit," he asserted in a letter to stuart written from paris in . "i see nothing else which can restrain our disposition to luxury, and the loss of those manners which alone can preserve republican government."[ ] we have now seen the state of the country and the condition of the people, their situation and habits, their manner of life and trend of feeling. we have witnessed the change thus wrought in the leading men during this period, so destructive of confidence in the wisdom or virtue of majorities, at least on first impulse and without abundant time for reflection and second thought. thus we have measured, with some degree of accuracy, the broad and well-marked space that separated the hostile forces which were to meet in what was for the moment a decisive conflict when virginia's constitutional convention should assemble at richmond. in one camp the uninformed and credulous, those who owed debts and abhorred government, with a sprinkling among them of eminent, educated, and well-meaning men who were philosophic apostles of theoretical liberty; and in the other camp men of property and lovers of order, the trading and moneyed interests whose first thought was business; the veterans of the revolution who had learned on the battlefield the need of a strong central government; and, here and there, a prophetic and constructive mind who sought to build a nation. john marshall was one of the latter; and so he promptly took his place by the side of his old general and leader in the camp of the builders. at last the supreme hour is striking. the virginians, about to assemble in state convention, will determine the fate of that unauthorized and revolutionary plan for a national government,[ ] the national constitution. the movement for a second general convention to have another try at framing a constitution has made distinct progress by the time the virginia representatives gather at the state capital.[ ] there is widespread, positive, and growing resentment at the proposed new form of government; and if virginia, the largest and most populous of the states, rejects it, the flames of opposition are certain to break out in every part of the country. as washington asserts, there is, indeed, "combustible material" everywhere. thus it is that the room where virginia's convention is about to meet in june, , will become the "bloody angle" in the first great battle for nationalism. and marshall will be there, a combatant as he had been at great bridge and brandywine. not for john marshall the pallid rôle of the trimmer, but the red-blooded part of the man of conviction. footnotes: [ ] _writings_: conway, i, _et seq._ [ ] "_common sense_ had a prodigious effect." (franklin to le veillard, april , ; _writings_: smyth, ix, .) "its popularity was unexampled.... the author was hailed as our angel sent from heaven to save all from the horrors of slavery.... his pen was an appendage [to the army] almost as necessary and formidable as its cannon." (cheetenham, - , .) in america alone , copies of _common sense_ were sold within three months after the pamphlet appeared. (belcher, i, .) "can nothing be done in our assembly for poor paine? must the merits of _common sense_ continue to glide down the stream of time unrewarded by this country? his writings certainly have had a powerful effect upon the public mind. ought they not, then, to meet an adequate return?" (washington to madison, june , ; _writings_: ford, x, ; and see tyler, i, - .) in the virginia legislature marshall introduced a bill for paine's relief. (_supra_, chap, vi.) [ ] graydon, . [ ] _common sense_: paine; _writings_: conway, i, . paine's genius for phrase is illustrated in the _crisis_, which next appeared. "these are the times that try men's souls"; "tyranny like hell, is not easily conquered"; "the summer soldier and the sunshine patriot," are examples of paine's brilliant gift. [ ] moore's _diary_, ii, - . although this was a british opinion, yet it was entirely accurate. [ ] "they will _rise_ and for lack of argument, say, m^r. speaker, this measure will never do, the _people_ sir, will never bear it.... these small politicians, returned home, ... tell their constituents such & such measures are taking place altho' i did my utmost to prevent it--the people must take care of themselves or they are undone. stir up a county convention and by trumpeting lies from town to town get one [a convention] collected and consisting of persons of small abilities--of little or no property--embarrass'd in their circumstances--and of no great integrity--and these geniouses vainly conceiving they are competent to regulate the affairs of state--make some hasty incoherent resolves, and these end in sedition, riot, & rebellion." (sewell to thatcher, dec., ; _hist. mag._ ( d series), vi, .) [ ] more than a decade after the slander was set afoot against colonel levin powell of loudoun county, virginia, one of the patriot soldiers of the revolution and an officer of washington, that he favored establishing a monarchy, one of his constituents wrote that "detraction & defamation are generally resorted to promote views injurious to you.... can you believe it, but it is really true that the old & often refuted story of your predilection for monarchy is again revived." (thomas sims to colonel levin powell, leesburg, virginia, feb. and , ; _branch historical papers_, i, , .) [ ] watson, - . this comic prophecy that the national capital was to be the fortified home of a standing army was seriously believed by the people. patrick henry urged the same objection with all his dramatic power in the virginia convention of . so did the scholarly mason. (see _infra_, chaps. xi and xii.) [ ] graydon, - . [ ] _memorials of the society of the cincinnati_, , - . [ ] jefferson to washington, nov. , ; _works_: ford, v, - ; and see jefferson's denunciation of the cincinnati in jefferson to madison, dec. , ; _ib._, viii, - . but see jefferson's fair and moderate account of the cincinnati before he had learned of its unpopularity in america. (jefferson to meusnier, june , ; _ib._, v, - .) [ ] the same who broke the quorum in the continental congress. (_supra_, chap. iv.) [ ] burke: _considerations on the society of the order of cincinnati_; . [ ] mirabeau: _considerations on the order of cincinnati_; . mirabeau here refers to the rule of the cincinnati that the officer's eldest son might become a member of the order, as in the military order of the loyal legion of the present time. [ ] as quoted in hudson: _journalism in the united states_, . [ ] madison to james madison, nov. , ; _writings_: hunt, ii, . [ ] jay to jefferson, oct. , ; _jay_: johnston, iii, . [ ] see weld, i, - , as a fair example of foreign estimate of this american characteristic at that period. [ ] see chap. ii, vol. ii, of this work. [ ] private debts which virginia planters alone owed british merchants were " or times the amount of all money in circulation in that state." (jefferson to meusnier, jan. , ; _works_: ford, v, - ; and see jefferson to mccaul, april , ; _ib._, .) [ ] "it cannot perhaps be affirmed that there is gold & silver en^o in the country to pay the next tax." (madison to monroe, june , ; _writings_: hunt, ii, .) [ ] jefferson to meusnier, jan. , ; _works_: ford, v, . [ ] jefferson to meusnier, jan. , : _works_: ford, v, . [ ] moore's _diary_, ii, - . the merchants of philadelphia shut their shops; and it was agreed that if congress did not substitute "solid money" for paper, "all further resistance to" great britain "must be given up." (_ib._) [ ] jefferson to mccaul, april , ; _works_: ford, v, ; also to wm. jones, jan. , ; _ib._, .--"paiment was made me in this money when it was but a shadow." [ ] livingston to jay, july , ; _jay_: johnston, iii, - . [ ] fithian, . [ ] virginia's paper money experiment was the source of many lawsuits in which marshall was counsel. see, for example, pickett _vs._ claiborne (call, iv, - ); taliaferro _vs._ minor (call, i, - ). [ ] the house of delegates toward the end of voted to against the paper money resolution. (madison to james madison, nov. , ; _writings_: hunt, ii, .) [ ] "the advocates for paper money are making the most of this handle. i begin to fear exceedingly that no efforts will be sufficient to parry this evil." (madison to monroe, june , ; _ib._, .) [ ] madison to jefferson, aug. , ; _ib._, . [ ] "enclosed are one hundred dollars of new emmission money which col. steward desires me to have exchanged for specie. pray, inform him they are all counterfeit." (gerry to king, april , ; king, i, .) [ ] washington to grayson, aug. , ; _writings_: ford, x, - . [ ] knox to washington, oct. , ; _writings_: hunt, ii, footnote to p. - . [ ] minot: _history of the insurrections in massachusetts in _ ( d ed.), . [ ] printed in the first edition ( ) "enormous"--a good example of the haste of the first printing of marshall's _life of washington_. (see vol. iii of this work.) [ ] marshall, ii, . [ ] _ib._, . [ ] knox to washington, oct. , ; _writings_: hunt, ii, footnote to . [ ] shays's rebellion was only a local outburst of a general feeling throughout the united states. marshall says, "those causes of discontent ... existed in every part of the union." (marshall, ii, .) [ ] jay to jefferson, oct. , ; _jay_: johnston, iii, . [ ] jay to reed, dec. , ; _ib._, . [ ] jay to price, sept. , ; _ib._, . [ ] madison to randolph, jan. , ; _writings_: hunt, v, . [ ] washington to lee, oct. , ; _writings_: ford, xi, - . [ ] washington to madison, nov. , ; _ib._, . [ ] washington to knox, dec. , ; _ib._, - . and washington wrote to lafayette that "there are seeds of discontent in every part of the union." (_writings_: sparks, ix, .) [ ] marshall to james wilkinson, jan. , ; _amer. hist. rev._, xii, - . [ ] jefferson to mrs. adams, feb. , ; _works_: ford, v, . [ ] jefferson to mrs. adams, feb. , ; _works_: ford, v, . [ ] jefferson to smith, nov. , ; _ib._, . [ ] "the payments from the states under the calls of congress have in no year borne any proportion to the public wants. during the last year ... the aggregate payments ... fell short of , doll^{rs}, a sum neither equal to the interest due on the foreign debts, nor even to the current expenses of the federal government. the greatest part of this sum too went from virg^a, which will not supply a single shilling the present year." (madison to jefferson, march , ; _writings_: hunt, ii, .) [ ] washington to jay, aug. , ; _writings_: ford, xi, - . [ ] jay (secretary of state under the confederation) to jefferson, dec. , ; _jay_: johnston, iii, . [ ] "we are wasting our time & labour in vain efforts to do business" (because of state delegates not attending), wrote jefferson in . (jefferson to washington, march , ; _works_: ford, iv, .) and at the very climax of our difficulties "a sufficient number of states to do business have not been represented in congress." (jay to wm. carmichael, jan. , ; _jay_: johnston, iii, .) during half of september and all of october, november, december, january, and february, nine states "have not been represented in congress"; and this even after the constitution had been adopted. (jay to jefferson, march , ; _jay_: johnston, iii, .) [ ] jay to jefferson, dec. , ; _jay_: johnston, iii, - . and melancton smith declared that "the farmer cultivates his land and reaps the fruit.... the merchant drives his commerce and none can deprive him of the gain he honestly acquires.... the mechanic is exercised in his art, and receives the reward of his labour." ( - ; ford: _p. on c._, .) of the prosperity of virginia, grigsby says, "our agriculture was most prosperous, and our harbors and rivers were filled with ships. the shipping interest ... was really advancing most rapidly to a degree of success never known in the colony." (grigsby, i, footnote to p. ; and see his brilliant account of virginia's prosperity at this time; _ib._, - .) "the spirit of industry throughout the country was never greater. the productions of the earth abound," wrote jay to b. vaughan, sept. , . (_jay_: johnston, iii, .) [ ] jay to john adams, feb. , ; _jay_: johnston, iii, . jay thought that the bottom of the trouble was that "relaxation in government and extravagance in individuals create much public and private distress, and much public and private want of good faith." (_ib._, .) [ ] madison to jefferson, dec. , ; _writings_: hunt, ii, . "this indulgence to the people as it is called & considered was so warmly wished for out of doors, and so strenuously pressed within that it could not be rejected without danger of exciting some worse project of a popular cast." (_ib._) [ ] madison to washington, dec. , ; _ib._, . "my acquiescence in the measure was against every general principle which i have embraced, and was extorted by a fear that some greater evil under the name of relief to the people would be substituted." (_ib._) [ ] rutledge to jay, may , ; _jay_: johnston, iii, . [ ] washington to jay, may , ; _writings_: ford, xi, - . [ ] jay to washington, june , ; _jay_: johnston, iii, . [ ] _ib._, . [ ] washington to harrison, jan. , ; _writings_: ford, x, . [ ] _ib._ [ ] see madison's masterful summary of the wickedness, weakness, and folly of the state governments in _writings_: hunt, ii, - . [ ] washington to jay, march , ; _writings_: ford, xi, . [ ] see _supra_, chap. vi. [ ] madison to jefferson, march , ; _writings_: hunt, ii, . "another unhappy effect of a continuance of the present anarchy of our commerces will be a continuance of the unfavorable balance on it, which by draining us of our metals, furnishes pretexts for the pernicious substitution of paper money, for indulgencies to debtors, for postponements of taxes." (_ib._) [ ] virginia carefully defined her revenue boundaries as against pennsylvania and maryland; and provided that any vessel failing to enter and pay duties as provided by the virginia tariff laws might be seized by any person and prosecuted "one half to the use of the informer, and the other half to the use of the commonwealth." (va. statutes at large ( ), chap. , .) virginia strengthened her tariff laws against importations by land. "if any such importer or owner shall unload any such wagon or other carriage containing any of the above goods, wares, or merchandise brought into this state by land without first having entered the same as directed above, every such wagon or other carriage, together with the horses thereto belonging and all such goods wares and merchandise as shall be brought therein, shall be forfeited and recovered by information in the court of the county; two-thirds to the informer and one-third toward lessening the levy of the county where such conviction shall be made." (_ib._) even pennsylvania, already the principal workshop of the country, while enacting an avowedly protective tariff on "manufactures of europe and other foreign parts," included "cider, malted barley or grain, fish, salted or dried, cheese, butter, beef, pork, barley, peas, mustard, manufactured tobacco" which came, mostly, from sister states. the preamble declares that the duties are imposed to protect "the artisans and mechanics of this state" without whose products "the war could not have been carried on." in addition to agricultural articles named above, the law includes "playing cards, hair powder, wrought gold or silver utensils, polished or cut stones, musical instruments, walking canes, testaments, psalters, spelling books or primers, romances, novels and plays, and horn or tortoise shell combs," none of which could be called absolutely indispensable to the conduct of the war. the preamble gives the usual arguments for protective tariffs. it is the first protective tariff law, in the present-day sense, ever passed. (pa. statutes at large ( ), .) [ ] even at the present time the various states have not recovered from this anti-national and uneconomic practice, as witness the tax laws and other statutes in almost every state designed to prevent investments by the citizens of that state in industries located in other states. worse, still, are the multitude of state laws providing variable control over railways that are essentially national. [ ] _writings_: hunt, ii, . [ ] marshall ( st ed.), v, - . [ ] madison to washington, april , ; _writings_: hunt, ii, - . this ultra-nationalist opinion is an interesting contrast to madison's states' rights views a few years later. (see _infra_, vol. ii, chaps. ii, iii, and iv.) [ ] minton collins at richmond to stephen collins at philadelphia, may , ; ms., lib. cong. [ ] sam smith in london to stephen collins in philadelphia, july , ; _ib._ [ ] minton collins to stephen collins, aug. , ; _ib._ [ ] "vergennes complained, and with a good deal of stress, that they did not find a sufficient dependence on arrangements taken with us. this was the third time, too, he had done it.... he observed too, that the administration of justice with us was tardy, insomuch that their merchants, when they had money due to them within our states, considered it as desperate; and that our commercial regulations, in general, were disgusting to them." (jefferson's report; _works_: ford, iv, .) [ ] jefferson to stuart, jan. , ; _ib._, v, . [ ] jefferson to madison, dec. , ; _ib._, v, . [ ] jefferson to carrington, paris, aug. , ; _ib._, ; also ; and jefferson to wythe, sept. , ; _ib._, . [ ] jefferson to carrington, paris, aug. , ; _ib._, . [ ] jefferson to meusnier, jan. , ; _ib._, . [ ] jefferson to meusnier, jan. , ; _works_: ford, v, . [ ] jefferson to madison, dec. , ; _ib._, - . jefferson concluded, prophetically, that when the people "get piled upon one another, in large cities, as in europe, they will become as corrupt as europe." (_ib._) [ ] jefferson to hogendorp, oct. , ; _ib._, iv, . [ ] jefferson to stuart, jan. , ; _ib._, v, . [ ] see _infra_, chap. ix. [ ] for a careful study of this important but neglected subject see professor edward payson smith's paper in jameson, - . chapter ix the struggle for ratification the plot thickens fast. a few short weeks will determine the political fate of america. (washington.) on sunday, june , , the dust lay deep in the streets of the little town of richmond. multitudes of horses were tethered here and there or stabled as best the virginia capital's meager accommodations permitted. cavalcades of mounted men could be seen from shockoe hill, wending their way over the imperfect earthen roads from every direction to the center of interest.[ ] some of these had come hundreds of miles and arrived in the garb of the frontier, pistol and hanger at belt.[ ] patrick henry, prematurely old at fifty-two, came in a one-horse, uncovered gig; pendleton, aged, infirm, and a cripple, arrived in a phaeton.[ ] as we have seen, it was very hard for members of virginia's legislature to get to the seat of the state government even from counties not far distant; and a rainy season, or even one week's downpour during the latter part of may, would have kept large numbers of the members of the virginia convention from reaching their destination in time and perhaps have decided the impending struggle[ ] before it began. the year's great social and sporting event added to the throng and colored the dark background of political anxiety and apprehension with a faint tinge of gayety.[ ] although seven months had elapsed since the federal convention had finished its work, there was, nevertheless, practically no accurate knowledge among the people of the various parts of the "new plan" of government. even some members of the virginia state convention had never seen a copy of the constitution until they arrived in richmond to deliberate upon it and decide its fate.[ ] some of the most inquiring men of this historic body had not read a serious or convincing argument for it or against it.[ ] "the greater part of the members of the [virginia] convention will go to the meeting without information on the subject," wrote nicholas to madison immediately after the election of delegates.[ ] one general idea, however, had percolated through the distances and difficulties of communication to the uninformed minds of the people--the idea that the new constitution would form a strong, consolidated national government, superior to and dominant over the state governments; a national sovereignty overawing state sovereignties, dangerous to if not entirely destructive of the latter; a general and powerful authority beyond the people's reach, which would enforce contracts, collect debts, impose taxes; above all, a bayonet-enforced rule from a distant point, that would imperil and perhaps abolish "liberty."[ ] so a decided majority of the people of virginia were against the proposed fundamental law;[ ] for, as in other parts of the country, few of virginia's masses wanted anything stronger than the weak and ineffective government of the state and as little even of that as possible. some were "opposed to any system, was it even sent from heaven, which tends to confirm the union of the states."[ ] madison's father reported the baptists to be "generally opposed to it"; and the planters who went to richmond to sell their tobacco had returned foes of the "new plan" and had spread the uprising against it among others "who are no better acquainted with the necessity of adopting it than they themselves."[ ] at first the friends of the constitution deceived themselves into thinking that the work of the philadelphia convention met with approval in virginia; but they soon found that "the tide next took a sudden and strong turn in the opposite direction."[ ] henry wrote to lamb that "four-fifths of our inhabitants are opposed to the new scheme of government"; and he added that south of the james river "i am confident nine-tenths are opposed to it."[ ] that keen and ever-watchful merchant, minton collins, thus reported to the head of his commercial house in philadelphia: "the new federal constitution will meet with much opposition in this state [virginia] for many pretended patriots has taken a great deal of pains to poison the minds of the people against it.... there are two classes here who oppose it, the one is those who have power & are unwilling to part with an atom of it, & the others are the people who owe a great deal of money, and are very unwilling to pay, as they are afraid this constitution will make them _honest men_ in spite of their teeth."[ ] and now the hostile forces are to meet in final and decisive conflict. now, at last, the new constitution is to be really _debated_; and debated openly before the people and the world. for the first time, too, it is to be opposed in argument by men of the highest order in ability, character, and standing--men who cannot be hurried, or bullied, or shaken, or bought. the debates in the virginia convention of are the only masterful discussions on _both_ sides of the controversy that ever took place. while the defense of the constitution had been very able in pennsylvania and massachusetts (and later in new york was to be most brilliant), the attack upon it in the virginia convention was nowhere equaled or approached in power, learning, and dignity. extravagant as the assertion appears, it nevertheless is true that the virginia contest was the only real _debate_ over the whole constitution. it far surpassed, especially in presenting the reasons against the constitution, the discussion in the federal convention itself, in weight of argument and attractiveness of presentation, as well as in the ability and distinction of the debaters. the general federal convention that framed the constitution at philadelphia was a secret body; and the greatest pains were taken that no part of its proceedings should get to the public until the constitution itself was reported to congress. the journals were confided to the care of washington and were not made public until many years after our present government was established. the framers of the constitution ignored the purposes for which they were delegated; they acted without any authority whatever; and the document, which the warring factions finally evolved from their quarrels and dissensions, was revolutionary.[ ] this capital fact requires iteration, for it is essential to an understanding of the desperate struggle to secure the ratification of that then unpopular instrument. "not one legislature in the united states had the most distant idea when they first appointed members for a [federal] convention, entirely commercial ... that they would without any warrant from their constituents, presume on so bold and daring a stride," truthfully writes the excitable gerry of massachusetts in his bombastic denunciation of "the fraudulent usurpation at philadelphia."[ ] the more reliable melancton smith of new york testifies that "previous to the meeting of the convention the subject of a new form of government had been little thought of and scarcely written upon at all.... the idea of a government similar to" the constitution "never entered the minds of the legislatures who appointed the convention and of but very few of the members who composed it, until they had assembled and heard it proposed in that body."[ ] "had the idea of a total change [from the confederation] been started," asserts the trustworthy richard henry lee of virginia, "probably no state would have appointed members to the convention.... probably not one man in ten thousand in the united states ... had an idea that the old ship [confederation] was to be destroyed. pennsylvania appointed principally those men who are esteemed aristocratical.... other states ... chose men principally connected with commerce and the judicial department." even so, says lee, "the non-attendance of eight or nine men" made the constitution possible. "we must recollect, how disproportionately the democratic and aristocratic parts of the community were represented" in this body.[ ] this "child of fortune,"[ ] as washington called the constitution, had been ratified with haste and little or no discussion by delaware, new jersey, connecticut, and georgia. the principal men in the first three commonwealths felt that the constitution gave those states large commercial advantages and even greater political consequence;[ ] and georgia, with so small a population as to be almost negligible, felt the need of some strong government to defend her settlers against the indians. it is doubtful whether many of the people of these four states had read the constitution or had heard much about it, except that, in a general way, they were to be better off under the new than under the old arrangement. their ratification carried no weight other than to make up four of the nine states necessary to set the new system in motion. in other states its friends had whipped up all possible speed. not a week had passed after the federal convention had laid the proposed constitution before congress when a resolution was introduced in the legislature of pennsylvania for the election, within five weeks,[ ] of delegates to a state convention to ratify the "new plan." when its opponents, failing in every other device to delay or defeat it, refused to attend the sessions, thus breaking a quorum, a band of constitutionalists "broke into their lodgings, seized them, dragged them though the streets to the state house and thrust them into the assembly room with clothes torn and faces white with rage." and there the objecting members were forcibly kept until the vote was taken. thus was the quorum made and the majority of the legislature enabled to "pass" the ordinance for calling the pennsylvania state convention to ratify the national constitution.[ ] and this action was taken before the legislature had even received from congress a copy of that document. the enemies in pennsylvania of the proposed national government were very bitter. they said that the legislature had been under the yoke of philadelphia--a charge which, indeed, appears to be true. loud were the protests of the minority against the feverish haste. when the members of the pennsylvania convention, thus called, had been chosen and had finished their work, the anti-constitutionalists asserted that no fair election had really taken place because it "was held at so early a period and want of information was so great" that the people did not know that such an election was to be held; and they proved this to their own satisfaction by showing that, although seventy thousand pennsylvanians were entitled to vote, only thirteen thousand of them really had voted and that the forty-six members of the pennsylvania convention who ratified the constitution had been chosen by only sixty-eight hundred voters. thus, they pointed out, when the state convention was over, that the federal constitution had been ratified in pennsylvania by men who represented less than one tenth of the voting population of the state.[ ] indeed, a supporter of the constitution admitted that only a small fraction of the people did vote for members of the pennsylvania state convention; but he excused this on the ground that pennsylvanians seldom voted in great numbers except in contested elections; and he pointed out that in the election of the convention which framed the state's constitution itself, only about six thousand had exercised their right of suffrage and that only a little more than fifteen hundred votes had been cast in the whole commonwealth to elect pennsylvania's first legislature.[ ] the enemies of the proposed plan for a national government took the ground that it was being rushed through by the "aristocrats"; and the "independent gazetteer" published "the humble address of the _low born_ of the united states of america, to their fellow slaves scattered throughout the world," which sarcastically pledged that "we, the _low born_, that is, all the people of the united states, except or thereabouts, _well born_," would "allow and admit the said _well born_ immediately to establish and confirm this most noble, most excellent, and truly divine constitution."[ ] james wilson, they said, had been all but mobbed by the patriots during the revolution; he never had been for the people, but always "strongly tainted with the spirit of _high aristocracy_."[ ] yet such a man, they declared, was the ablest and best person the constitutionalists could secure to defend "that political monster, the proposed constitution"; "a monster" which had emerged from "the thick veil of secrecy."[ ] when the pennsylvania state convention had assembled, the opponents of the constitution at once charged that the whole business was being speeded by a "system of precipitancy."[ ] they rang the changes on the secret gestation and birth of the nation's proposed fundamental law, which, said mr. whitehill, "originates in mystery and must terminate in despotism," and, in the end, surely would annihilate the states.[ ] hardly a day passed that the minority did not protest against the forcing tactics of the majority.[ ] while much ability was displayed on both sides, yet the debate lacked dignity, courtesy, judgment, and even information. so scholarly a man as wilson said that "virginia has no bill of rights";[ ] and chief justice mckean, supported by wilson, actually declared that none but english-speaking peoples ever had known trial by jury.[ ] "lack of veracity," "indecent," "trifling," "contempt for arguments and person," were a few of the more moderate, polite, and soothing epithets that filled pennsylvania's convention hall throughout this so-called debate. more than once the members almost came to blows.[ ] the galleries, filled with city people, were hot for the constitution and heartened its defenders with cheers. "this is not the voice of the people of pennsylvania," shouted smilie, denouncing the partisan spectators. the enemies of the constitution would not be "intimidated," he dramatically exclaimed, "were the galleries filled with bayonets."[ ] the sarcastic mckean observed in reply that smilie seemed "mighty angry, merely because somebody was pleased."[ ] persons not members of the convention managed to get on the floor and laughed at the arguments of those who were against the constitution. findley was outraged at this "want of sense of decency and order."[ ] justice mckean treated the minority with contempt and their arguments with derision. "_if the sky falls, we shall catch larks; if the rivers run dry, we shall catch eels_," was all, said this conciliatory advocate of the constitution, that its enemies' arguments amounted to; they made nothing more than a sound "like _the working of small beer_."[ ] the language, manners, and methods of the supporters of the constitution in the pennsylvania convention were resented outside the hall. "if anything could induce me to oppose the new constitution," wrote a citizen signing himself "federalist," "it would be the indecent, supercilious carriage of its advocates towards its opponents."[ ] while the pennsylvania state convention was sitting, the philadelphia papers were full of attacks and counter-attacks by the partisans of either side, some of them moderate and reasonable, but most of them irritating, inflammatory, and absurd. a well-written petition of citizens was sent to the convention begging it to adjourn until april or may, so that the people might have time to inform themselves on the subject: "the people of pennsylvania have not yet had sufficient time and opportunity afforded them for this purpose. the great bulk of the people, from the want of leisure from other avocations; their remoteness from information, their scattered situation, and the consequent difficulty of conferring with each other" did not understand the constitution, declared this memorial. "the unaccountable zeal and precipitation used to hurry the people into premature decision" had excited and alarmed the masses, "and the election of delegates was rushed into before the greater part of the people ... knew what part to take in it." so ran the cleverly drawn indictment of the methods of those who were striving for ratification in pennsylvania.[ ] in the state convention, the foes of the constitution scathingly denounced to the very last the jamming-through conduct of its friends; and just before the final vote, smilie dared them to adjourn that the sense of the people might be taken.[ ] even such of the people as could be reached by the newspapers were not permitted to be enlightened by the convention "debates"; for reports of them were suppressed.[ ] only the speeches of james wilson and chief justice mckean, both ardent advocates of the constitution, were allowed to be published.[ ] but although outnumbered two to one, cuffed and buffeted without mercy in debate, scoffed at and jeered at by the people of the quaker city, the minority was stiff-necked and defiant. their heads were "bloody but unbowed." three days after the vote for ratification, forty-six "ayes" to twenty-three "nays," had been taken, the minority issued an address to their constituents.[ ] it relates the causes which led to the federal convention, describes its members, sets forth its usurpation of power, details the efforts to get popular support for the constitution even "whilst the gilded chains were forging in the secret conclave." the address recounts the violence by which the state convention was called, "not many hours" after the "new plan" had "issued forth from the womb of suspicious secrecy"; and reaffirms the people's ignorance of the constitution, the trifling vote, the indecorous, hasty, "insulting" debate. it gives the amendments asked for by the minority, and finally presents most if not all the arguments which before had been or since have been advanced against the constitution, and especially the national principle which pervades it. the powers given congress would produce "one consolidated government, which, from the nature of things, will be an _iron handed despotism_"; the state governments would be annihilated; the general welfare clause would justify anything which "_the will and pleasure_ of congress" dictated; that national body, "with complete and unlimited power over the _purse_ and the _sword_," could[ ] by taxation "command the whole or any part of the property of the people"--imposts, land taxes, poll taxes, excises, duties--every kind of tax on every possible species of property and written instrument could be laid by the "monster" of national power. by the judiciary provided in the constitution "the rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities and delays ... and the poor man being plunged in the bottomless pit of legal discussion" could not get justice.[ ] two coördinate "sovereignties," state and national, "would be contrary to the nature of things"; the constitution without a bill of rights "would of itself necessarily produce a despotism"; a standing army might be used to collect the most burdensome taxes and with it "an ambitious man ... may step up into the throne and seize upon absolute power"[ ]--such are the broad outlines of the document with which the undismayed enemies of the constitution began their campaign against it among the people of pennsylvania after the convention had ratified it. the wrath of the pennsylvania foes of the constitution fed and grew upon its own extravagance. the friends of the "new plan" tried to hold a meeting in carlisle to rejoice over its ratification; but the crowd broke up their meeting, wrecked their cannon, and burned the constitution in the very bonfire which the constitutionalists had prepared to celebrate its victory. blows were struck and violence done.[ ] for almost a year, an anti-constitutionalist paper in philadelphia kept up the bombardment of the constitution and its advocates, its gunner being a writer signing himself "centinel."[ ] his ammunition was a mixture of argument, statement, charge, and abuse, wrapped up in cartridge paper of blistering rhetoric. the constitution was, wrote "centinel," a "spurious brat"; "the evil genius of darkness presided at its birth" and "it came forth under the veil of mystery."[ ] should the small fraction of the people who had voted for the members of the pennsylvania state convention bind the overwhelming majority who had not voted, asked "centinel." no, indeed! the people, wrote he with pen of gall, had nothing but contempt for the "solemn mummery" that had been acted in their name.[ ] as to the citizens of philadelphia, everybody understood, asserted "centinel," that the "spirit of independency" was dead within _their_ breasts; philadelphia merchants, as was well known, were mere vassals to a commercial "colossus" (robert morris) who held the city in "thraldom."[ ] "mankind in the darkest ages, have never been so insulted," cried "centinel," as the men of pennsylvania had been by this "flagrant ... audacious ... conspiracy [the constitution] against the liberties of a free people."[ ] the whole thing, he declared, was a dastardly plot. the conspirators had disarmed the militia, kept out of the mails such newspapers as had dared to voice the "people's rights";[ ] and "all intercourse between the patriots of america is as far as possible cut off; whilst on the other hand the conspirators have the most exact information, a common concert is everywhere evident; they move in unison."[ ] the constitutionalists were not content with their vile work in thrusting upon pennsylvania "the empire of delusion," charged "centinel,"[ ] but their agents were off for virginia to do the like there.[ ] the whole world knew, said he, that the constitutionalists had rushed the constitution through in pennsylvania;[ ] and that the "immaculate convention [that framed the constitution] ... contained a number of the principal public defaulters,"[ ] chief of whom was robert morris, who, though a bankrupt in the beginning of the revolution, had, by "peculation and embezzlement of the public property," accumulated "the immense wealth he has dazzled the world with since."[ ] if only the address of pennsylvania's heroic minority, "centinel" lamented, had reached boston in time, it would "have enabled patriotism to triumph" there; but, of course, the "_high born_" constitutionalist managers of post-offices kept it back.[ ] was not the scandal so foul, asked "centinel," that, on the petition of philadelphia printers, pennsylvania's legislature appealed to congress against the suppression of the mails?[ ] of course philadelphia was for "this system of tyranny"; but three fourths of the people in the eastern counties and nineteen twentieths of those in the middle, northern, and western counties were against it.[ ] the grape and canister which its enemies poured upon the constitution and its friends in pennsylvania brought an answering fire. the attacks, said the constitutionalists, had been written by "hireling writers" and "sowers of sedition"; their slanders showed "what falsehoods disappointed ambition is capable of using to impose upon the public." according to the constitutionalists, their opponents were "incendiaries" with "infamous designs."[ ] "if every lie was to be punished by clipping, as in the case of other forgeries, not an ear would be left amongst the whole party," wrote a constitutionalist of the conduct of the opposition.[ ] but the constitutionalists were no match for their enemies in the language of abuse, recklessness in making charges, or plausibility in presenting their case. mostly they vented their wrath in private correspondence, which availed nothing. yet the letters of business men were effective in consolidating the commercial interests. also they illuminate the situation. "that restless firebrand, the printer of your city [oswald, editor of the "independent gazetteer"], is running about as if driven by the devil," wrote a new york merchant to a philadelphia business correspondent, "seemingly determined to do all the mischief he can; indeed, in my opinion he is an actual incendiary & ought to be the object of legal restraint. he is in his own person a strong argument of the necessity of speedily adopting the new system & putting it into immediate motion."[ ] and "firebrands," indeed, the anti-constitutionalists prove themselves in every possible way. madison was alarmed. he writes to jefferson that the "minority ... of pennsylvania has been extremely intemperate and continues to use very bold and menacing language."[ ] little did madison then foresee that the very men and forces he now was fighting were laying the foundation for a political party which was to make him president. far from his thought, at this time, was the possibility of that antipodal change which public sentiment and jefferson's influence wrought in him two years later. when the fight over the constitution was being waged, there was no more extreme nationalist in the whole country than james madison. so boiled the stormy pennsylvania waters through which the constitution was hastened to port and such was the tempest that strained its moorings after it was anchored in the harbor of ratification. in massachusetts, "all the men of abilities, of property and of influence,"[ ] were quite as strong for the constitution as the same class in pennsylvania; but, impressed by the revolt against the tactics of hurry and force which the latter had employed, the constitutionalists of the bay state took an opposite course. craft, not arrogance, was their policy. they were "wise as serpents," but appeared to be "as harmless as doves." unlike the methods of the pennsylvania constitutionalists, they were moderate, patient, conciliatory, and skillful. they put up hancock for president of the convention, in order, as they said, "that we might have advantage of [his] ... name--whether capable of attending or not."[ ] the massachusetts adversaries of the constitution were without a leader. among them "there was not a single character capable of uniting their wills or directing their measures."[ ] their inferiority greatly impressed madison, who wrote to pendleton that "there was scarce a man of respectability" among them.[ ] they were not able even to state their own case. "the friends of the constitution, who in addition to their own weight ... represent a very large proportion of the good sense and property of this state, have the task not only of answering, but also of stating and bringing forward the objections of their opponents," wrote king to madison.[ ] the opponents admitted this themselves. of course, said they, lawyers, judges, clergymen, merchants, and educated men, all of whom were in favor of the constitution, could make black look white; but "if we had men of this description on our side" we could run these foxes to earth.[ ] mr. randall hoped "that these great men of eloquence and learning will not try to _make_ arguments to make this constitution go down, right or wrong.... it takes the best men in this state to gloss this constitution.... suppose ... these great men would speak half as much against it, we might complete our business and go home in forty-eight hours."[ ] the election of members to the massachusetts convention had shown widespread opposition to the proposed establishment of a national government. although the constitutionalists planned well and worked hard, some towns did not want to send delegates at all; forty-six towns finally refused to do so and were unrepresented in the convention.[ ] "biddeford has backsliden & fallen from a state of grace to a state of nature, met yesterday & a dumb devil seized a majority & they voted not to send, & when called on for a reason they were dumb, _mirabile dictu_!"[ ] king lovejoy was chosen for vassalborough; but when the people learned that he would support the constitution they "called another meeting, turned him out, & chose another in his room who was desidedly against it."[ ] the division among the people in one county was: "the most reputable characters ... on ... _the right_ side [for the constitution] ... but the middling & common sort ... on the opposite";[ ] and in another county "the majority of the common people" were opposed,[ ] which seems to have been generally true throughout the state. of the sentiment in worcester, a certain e. bangs wrote: "i could give you but a very disagreeable account: the most of them entertain such a dread of arbitrary power, that they are afraid even of limited authority.... of upwards of members from this county not more than or delegates are" for the constitution, "& yet some of them are good men--not all [shays's] insurgents i assure you."[ ] judge sewall reported from york that the delegates there had been chosen "to oppose the business.... sanford had one meeting and voted not to send any--but m^r. s. come down full charged with gass and stirred up a ^{nd} meeting and procured himself elected, and i presume will go up charged like a baloon."[ ] nathaniel barrell of york, a successful candidate for the massachusetts convention, "behaved so indecently before the choice, as extorted a severe reprimand from judge sewall, and when chosen modestly told his constituents, he would sooner loose his arm than put his assent to the new proposed constitution, it is to be feared many of his brethern are of his mind."[ ] barrell explained to thatcher: "i see it [the constitution] pregnant with the fate of our libertys.... i see it entails wretchedness on my posterity--slavery on my children; ... twill not be so much for our advantage to have our taxes imposed & levied at the pleasure of congress as [by] the method now pursued ... a continental collector at the head of a standing army will not be so likely to do us justice in collecting the taxes.... i think such a government impracticable among men with such high notions of liberty as we americans."[ ] the "address of the minority" of pennsylvania's convention had reached a few men in massachusetts, notwithstanding the alleged refusal of the post-office to transmit it; and it did some execution. to thomas b. wait it "was like the thunder of sinai--its lightenings were irresistible" to him. he deplored the "darkness, duplicity and studied ambiguity ... running thro' the whole constitution," which, to his mind, made it certain that "as it now stands but very few individuals do or ever will understand it.... the vast continent of america cannot long be subjected to a democracy if consolidated into one government--you might as well attempt to rule hell by prayer."[ ] christopher gore condensed into one sentence the motives of those who favored the constitution as the desire for "an honorable & efficient govt. equal to the support of our national dignity--& capable of protecting the property of our citizens."[ ] the spirit of shays's rebellion inspired the opponents of the constitution in massachusetts. "many of the [shays's] insurgents are in the convention," lincoln informed washington; "even some of shays's officers. a great proportion of these men are high in the opposition. we could hardly expect any thing else; nor could we ... justly suppose that those men, who were so lately intoxicated with large draughts of liberty, and who were thirsting for more would ... submit to a constitution which would further take up the reins of government, which, in their opinion, were too straight before."[ ] out of three hundred and fifty-five members of the massachusetts convention, one hundred and sixty-eight held out against the constitution to the very last, uninfluenced by the careful, able, and convincing arguments of its friends, unmoved by their persuasion, unbought by their promises and deals.[ ] they believed "that some injury is plotted against them--that the system is the production of the rich and ambitious," and that the constitution would result in "the establishment of two orders in society, one comprehending the opulent and great, the other the poor and illiterate."[ ] at no time until they won over hancock, who presided over the massachusetts convention, were the constitutionalists sure that a majority was not against the new plan. the struggle of these rude and unlearned massachusetts men against the cultured, disciplined, powerful, and ably led friends of the constitution in that state was pathetic. "who, sir, is to pay the debts of the yeomanry and others?" exclaimed william widgery. "sir, when oil will quench fire, i will believe all this [the high-colored prophesies of the constitutionalists] and not till then.... i cannot see why we need, for the sake of a little meat, swallow a great bone, which, if it should happen to stick in our throats, can never be got out."[ ] amos singletary "wished they [the constitutionalists] would not play round the subject with their fine stories like a fox round a trap, but come to it."[ ] "these lawyers," said he, "and men of learning and moneyed men, that talk so finely, and gloss over matters so smoothly, to make us poor illiterate people swallow down the pill, expect to get into congress themselves; they expect to be the managers of this constitution, and get all the power and all the money, into their own hands, and then they will swallow up all us little folks like the great _leviathan_; ... yes, just as the whale swallowed up _jonah_."[ ] replying to the constitutionalist argument that the people's representatives in congress would be true to their constituents, abraham white said that he "would not trust a 'flock of moseses.'"[ ] the opposition complained that the people knew little or nothing about the constitution--and this, indeed, was quite true. "it is strange," said general thompson, "that a system which its planners say is so plain, _that he that runs may read it_, should want so much explanation."[ ] "necessity compelled them to hurry,"[ ] declared widgery of the friends of the constitution. "don't let us go too fast.... why all this racket?" asked the redoubtable thompson.[ ] dr. john taylor was sure that senators "once chosen ... are chosen forever."[ ] time and again the idea cropped out of a national government as a kind of foreign rule. "i beg the indulgence of this honorable body," implored samuel nason, "to permit me to make a short apostrophe to liberty. o liberty! thou greatest good! thou fairest property! with thee i wish to live--with thee i wish to die! pardon me if i drop a tear on the peril to which she is exposed: i cannot, sir, see this brightest of jewels tarnished--a jewel worth ten thousand worlds; and shall we part with it so soon? o no."[ ] and mr. nason was sure that the people would part with this brightest of jewels if the constitution was adopted. as to a standing army, let the constitutionalists recall boston on march , . "had i a voice like jove," cried nason, "i would proclaim it throughout the world; and had i an arm like jove, i would hurl from the globe those villains that would dare attempt to establish in our country a standing army."[ ] these "poor, ignorant men," as they avowed themselves to be, were rich in apostrophes. the reporter thus records one of general thompson's efforts: "here the general broke out in the following pathetic apostrophe: 'o my country, never give up your annual elections! young men, never give up your jewel.'"[ ] john holmes showed that the constitution gave congress power to "institute judicatories" like "that diabolical institution, the _inquisition_." "_racks_," cried he, "and _gibbets_, may be amongst the most mild instruments of their [congress's] discipline."[ ] because there was no religious test, major thomas lusk "shuddered at the idea that roman catholics, papists, and pagans might be introduced into office, and that popery and the inquisition may be established in america";[ ] and singletary pointed out that under the constitution a "papist, or an infidel, was as eligible as ... a christian."[ ] thus the proceedings dragged along. the overwhelming arguments of the advocates of the constitution were unanswered and, apparently, not even understood by its stubborn foes. one constitutionalist, indeed, did speak their language, a farmer named jonathan smith, whom the constitutionalist managers put forward for that purpose. "i am a plain man," said mr. smith, "and get my living by the plough. i am not used to speak in public, but i beg leave to say a few words to my brother plough-joggers in this house"; and mr. smith proceeded to make one of the most effective speeches of the convention.[ ] but all to no purpose. indeed, the pleadings and arguments for the constitution seemed only to harden the feeling of those opposed to it. they were obsessed by an immovable belief that a national government would destroy their liberties; "and," testifies king, "a distrust of men of property or education has a more powerful effect upon the minds of our opponents than any specific objections against the constitution."[ ] finally, in their desperation, the constitutionalist managers won hancock,[ ] whose courting of the insurgents in shays's rebellion had elected him governor. he had more influence with the opposition than any other man in new england. for the same reason, governor bowdoin's friends, who included most of the men of weight and substance, had been against hancock. by promising the latter their support and by telling him that he would be made president if washington was not,[ ] the constitutionalist leaders induced hancock to offer certain amendments which the massachusetts convention should recommend to congress along with its ratification of the constitution. hancock offered these proposals as his own, although they were drawn by the learned and scholarly parsons.[ ] samuel adams, hitherto silent, joined in this plan. thus the trick was turned and the massachusetts convention ratified the constitution a few days later by a slender majority of nineteen out of a vote of three hundred and fifty-five.[ ] but not without bitter protest. general thompson remarked that "he could not say amen to them [the amendments], but they might be voted for by some men--he did not say judases."[ ] the deal by which the constitutionalists won hancock was suspected, it appears, for dr. charles jarvis denied that "these amendments have been artfully introduced to lead to a decision which would not otherwise be had."[ ] madison in new york, watching the struggle with nervous solicitude, thought that the amendments influenced very few members of the massachusetts opposition because of "their objections being levelled against the very essence of the proposed government."[ ] certainly, those who changed their votes for ratification had hard work to explain their conversion. nathaniel barrell, who had pledged his constituents that he would part with his arm rather than vote for the "slavery of my children," had abandoned his vow of amputation and decided to risk the future bondage of his offspring by voting for the constitution. in trying to justify his softened heroism, he said that he was "awed in the presence of this august assembly"; he knew "how little he must appear in the eyes of those giants of rhetoric, who have exhibited such a pompous display of declamation"; but although he did not have the "eloquence of cicero, or the blaze of demosthenian oratory," yet he would try to explain. he summarized his objections, ending with his wish that "this constitution had not been, in some parts of the continent, hurried on, like the driving of jehu, very furiously." so he hoped the convention would adjourn, but if it would not--well, in that case, mr. barrell would brave the wrath of his constituents and vote for ratification with amendments offered by hancock.[ ] just as the bargain with hancock secured the necessary votes for the constitution in the massachusetts convention, so did the personal behavior of the constitutionalists forestall any outbreak of protest after ratification. "i am at last overcome," wrote widgery, "by a majority of , including the president [hancock] whose very name is an honour to the state, for by his coming in and offering som amendments which furnished many with excuses to their constituants, it was adopted to the great joy of all boston."[ ] the triumphant constitutionalists kept up their mellowing tactics of conciliation after their victory and with good results, as appears by mr. widgery's account. the "great bone" which had been thrust into his throat had not stuck there as he had feared it would. the constitutionalists furnished materials to wash it down. "after taking a parting glass at the expense of the trades men in boston we disolved";[ ] but not before the mollified widgery announced that the constitution "had been carried by a majority of wise and understanding men.... after expressing his thanks for the civility which the inhabitants of this town [boston] have shown to the convention, ... he concluded by saying that he should support the ... constitution" with all his might.[ ] "one thing i mus menchen," relates widgery, "the gallerys was very much crowded, yet on the desition of so emportant a question as the present you might have heard a copper fall on the gallery floor, their was sush a profound silance; on thirs day we got throw all our business and on fry day, there was a federal ship riged and fix^d on a slead, hald by horses, and all orders of men turn^d out and formed a procession in the following ordor viz first the farmers with the plow and harrow sowing grain, and harrowing it in as they went som in a cart brakeing and swingeing flax ... tradesmen of all sorts, ... the bakers [with] their bread peal ... the federal ship ful riged ... the merchants ... a nother slead, halled by horses on which was a ship yard, and a number of smaul ships &c. on that. in this order thay march^d to the house of each of their delegates in the town of boston, and returned to fanuels aall where the merchants gave them or hogsheads of punch and as much wine cake & cheese as they could make way with ... one thing more notwithstanding my opposition to the constitution, and the anxiety of boston for its adoption i most tel you i was never treated with so much politeness in my life as i was afterwards by the treadesmen of boston merchants & every other gentleman."[ ] thus did the massachusetts constitutionalists take very human and effective measures to prevent such revolt against the constitution, after its ratification, as the haughty and harsh conduct of their pennsylvania brothers had stirred up in the city and state of brotherly love. "the minority are in good temper," king advises madison; "they have the magnanimity to declare that they will devote their lives and property to support the government."[ ] while there was a little anti-constitutionalist activity among the people after the convention adjourned, it was not virulent. gerry, indeed, gave one despairing shriek over departing "liberty" which he was sure the constitution would drive from our shores; but that lament was intended for the ears of new york. it is, however, notable as showing the state of mind of such anti-constitutionalists as the constitution's managers had not taken pains to mollify. gerry feared the "gulph of despotism.... on these shores freedom has planted her standard, diped in the purple tide that flowed from the veins of her martyred heroes" which was now in danger from "the deep-laid plots, the secret intrigues, ... the bold effrontery" of those ambitious to be aristocrats, some of whom were "speculating for fortune, by sporting with public money." only "a few, a very few [constitutionalists] ... were ... defending their country" during the revolution, said gerry. "genius, virtue, and patriotism seems to nod over the vices of the times ... while a supple multitude are paying a blind and idolatrous homage to ... those ... who are endeavouring ... to betray the people ... into an acceptance of a most complicated system of government; marked on the one side with the _dark_, _secret_ and _profound intrigues_ of the statesman, long practised in the purlieus of despotism; and on the other, with the ideal projects of _young ambition_, with its wings just expanded to soar to a summit, which imagination has painted in such gawdy colours as to intoxicate the _inexperienced votary_ and send _him_ rambling from state to state, to collect materials to construct the ladder of preferment."[ ] thus protested gerry; but if the people, in spite of his warnings, _would_ "give their voices for a voluntary dereliction of their privileges"--then, concluded gerry, "while the statesman is plodding for power, and the courtier practicing the arts of dissimulation without check--while the rapacious are growing rich by oppression, and fortune throwing her gifts into the lap of fools, let the sublimer characters, the philosophic lovers of freedom who have wept over her exit, retire to the calm shades of contemplation, there they may look down with pity on the inconsistency of human nature, the revolutions of states, the rise of kingdoms, and the fall of empires."[ ] such was the resistance offered to the constitution in massachusetts, such the debate against it, the management that finally secured its approval with recommendations by that commonwealth,[ ] and the after effects of the constitutionalists' tactics. in new hampshire a majority of the convention was against the constitution. "almost every man of property and abilities ... [was] for it," wrote langdon to washington; but "a report was circulated ... that the liberties of the people were in danger, and the great men ... were forming a plan for themselves; together with a thousand other absurdities, which frightened the people almost out of what little senses they had."[ ] very few of the citizens of new hampshire knew anything about the constitution. "i was surprised to find ... that so little information respecting the constitution had been diffused among the people," wrote tobias lear. "the valuable numbers of _publius_ are not known.... the debates of the pennsylvania and massachusetts conventions have been read by but few persons; and many other pieces, which contain useful information have never been heard of."[ ] when the new hampshire convention assembled, "a great part of whom had positive instructions to vote against it," the constitutionalists, after much argument and persuasion, secured an adjournment on february until june.[ ] learning this in new york, nine days later, madison wrote pendleton that the adjournment had been "found necessary to prevent a rejection."[ ] but, "notwithstanding our late disappointments and mortification," the new hampshire constitutionalists felt that they would win in the end and "make the people happy in spight of their teeth."[ ] when, therefore, virginia's great convention met on june , , the nation's proposed fundamental law had not received deliberate consideration in any quarter; nor had it encountered weighty debate from those opposed to it. new york's convention was not to assemble until two weeks later and that state was known to be hostile. the well-arranged plan was working to combine the strength of the leading enemies of the constitution in the various states so that a new federal convention should be called.[ ] "had the influence of character been removed, the intrinsic merits of the instrument [constitution] would not have secured its adoption. indeed, it is scarcely to be doubted, that in some of the adopting states, a majority of the people were in the opposition," writes marshall many years afterwards in a careful review of the thorny path the constitution had had to travel.[ ] its foes, says marshall, were "firmly persuaded that the cradle of the constitution would be the grave of republican liberty."[ ] in virginia's convention, the array of ability, distinction, and character on both sides was notable, brilliant, and impressive. the strongest debaters in the land were there, the most powerful orators, and some of the most scholarly statesmen. seldom, in any land or age, has so gifted and accomplished a group of men contended in argument and discussion at one time and place. and yet reasoning and eloquence were not the only or even the principal weapons used by these giant adversaries. skill in political management, craft in parliamentary tactics, intimate talks with the members, the downright "playing of politics," were employed by both sides. "of all arguments that may be used at the convention," wrote washington to madison, more than four months before the convention, "the most prevailing one ... will be that nine states at least will have acceded to it."[ ] footnotes: [ ] grigsby, i, . [ ] travelers from the district of kentucky or from the back settlements of virginia always journeyed fully armed, in readiness to defend themselves from attack by indians or others in their journey through the wilderness. [ ] grigsby, i, - . [ ] _ib._, . [ ] the jockey club was holding its annual races at richmond when the constitutional convention of convened. (christian, .) [ ] grigsby, i. . [ ] humphrey marshall, from the district of kentucky, saw for the first time one number of the _federalist_, only after he had reached the more thickly peopled districts of virginia while on his way to the convention. (_ib._, footnote to .) [ ] george nicholas to madison, april , ; _writings_: hunt, v, footnote to p. . [ ] "the most common and ostensible objection was that it [the constitution] would endanger state rights and personal liberty--that it was too strong." (humphrey marshall, i, .) [ ] tyler, i, . grigsby estimates that three fourths of the people of virginia were opposed to the constitution. (grigsby, i, footnote to .) [ ] lee to madison, dec. ; _writings_: hunt, v, footnote to p. . [ ] madison's father to madison, jan. , ; _writings_: hunt, v, footnote to p. . [ ] madison to jefferson, feb. , ; _ib._, . [ ] henry to lamb, june , ; henry, ii, . [ ] minton collins to stephen collins, march , ; collins mss., lib. cong. [ ] even hamilton admitted this. "the framers of it [the constitution] will have to encounter the disrepute of having brought about a revolution in government, without substituting anything that was worthy of the effort; they pulled down one utopia, it will be said, to build up another." (hamilton to washington, sept., ; hamilton's _works_: lodge, ix, ; and also in jefferson, _writings_: ford, xi, footnote to .) martin van buren describes the action of the federal convention that framed the constitution, in "having ... set aside the instructions of congress by making a new constitution ... an heroic but lawless act." (van buren, - .) professor burgess does not overstate the case when he declares: "had julius or napoleon committed these acts [of the federal convention in framing and submitting the constitution], they would have been pronounced _coups d'état_." (burgess, i, .) also see beard: _econ. i. c._, - . [ ] ford: _p. on c._, . [ ] _ib._, - . [ ] ford: _p. on c._, - . and see jameson, - . [ ] washington to lafayette, sept. , ; _writings_: sparks, ix, . [ ] connecticut, new jersey, and delaware had practically no ports and, under the confederation, were at the mercy of massachusetts, new york, and pennsylvania in all matters of trade. the constitution, of course, remedied this serious defect. also, these smaller states had forced the compromise by which they, with their comparatively small populations, were to have an equal voice in the senate with new york, pennsylvania, and virginia, with their comparatively great populations. and therefore they would have practically equal weight in the law--and treaty-making power of the government. this was the most formidable of the many rocks on which the federal convention all but broke up. [ ] one proposition was to call the state convention "within _ten_ days." (see "address of the minority of the pennsylvania convention," in mcmaster and stone, .) [ ] _ib._, - ; and see _ib._, . an excuse for these mob methods was that the legislature previously had resolved to adjourn _sine die_ on that very day. this would put off action until the next session. the anti-constitutionalists urged--with entire truthfulness--that even this delay would give the people too little time to inform themselves upon the "new plan" of government, as it was called, which the convention was to pass upon in the people's name. "not one in twenty know anything about it." (mr. whitehall in debate in the legislature; _ib._, .) [ ] mcmaster and stone, - . this charge was wholly accurate. both sides exerted themselves to carry the "election." the anti-constitutionalists declared that they stood for "the principles of the revolution"; yet, asserts graydon, who was at reading at the time, they sought the support of the tories; the country lawyers were opposed to the "new plan" and agreed not "to practice or accept any office under the constitution"; but the constitutionalists promised "prothonotaryships, attorney generalships, chief justiceships, and what not," and the hostile attorneys "were tempted and did eat." describing the spirit of the times, graydon testifies that "pelf was a better goal than liberty and at no period in my recollection was the worship of mammon more widely spread, more sordid and disgusting." everybody who wanted it had a military title, that of major being "the very lowest that a dasher of any figure would accept." to "clap on a uniform and a pair of epaulettes, and scamper about with some militia general for a day or two" was enough to acquire the coveted rank. thus, those who had never been in the army, but "had played a safe and calculating game" at home and "attended to their interests," were not only "the men of mark and consideration," but majors, colonels, and generals as well. (graydon, - .) noting, at a later time, this passion for military titles weld says: "in every part of america a european is surprised at finding so many men with military titles ... but no where ... is there such a superfluity of these military personages as in the little town of staunton; there is hardly a decent person in it ... but what is a colonel, a major, or a captain." (weld, i, - .) such were the conditions in the larger towns when the members of the pennsylvania convention were chosen. the small vote cast seems to justify the charge that the country districts and inaccessible parts of the state did not even know of the election. [ ] mcmaster and stone, - . [ ] mcmaster and stone, - . [ ] _independent gazetteer_: _ib._, - . [ ] _ib._, - . [ ] pennsylvania debates, in mcmaster and stone, . elliott prints only a small part of these debates. [ ] _ib._, - . [ ] _ib._, . [ ] mcmaster and stone, . [ ] findley covered them with confusion in this statement by citing authority. wilson irritably quoted in retort the words of maynard to a student: "young man! i have forgotten more law than ever you learned." (_ib._, - .) [ ] _ib._, - . [ ] _ib._, . [ ] _ib._ [ ] _ib._, . [ ] mcmaster and stone, . [ ] _ib._, . the conduct of the pennsylvania supporters of the constitution aroused indignation in other states, and caused some who had favored the new plan of government to change their views. "on reception of the report of the [federal] convention, i perused, and admir'd it;--or rather, like many who still _think_ they admire it, i loved geo. washington--i venerated benj. franklin--and therefore concluded that i must love and venerate all the works of their hands;--.... the honest and uninformed _freemen_ of america entertain the same opinion of those two gentlemen as do european _slaves_ of their princes,--'_that they can do no wrong_.'" but, continues wait, "on the unprecedented conduct of the pennsylvania legislature [and convention] i found myself disposed to lend an ear to the arguments of the opposition--not with an expectation of being convinced that the new constitution was defective; but because i thought the minority had been ill used; and i felt a little curious to hear the particulars," with the result that "i am dissatisfied with the proposed constitution." (wait to thatcher, jan. , ; _hist. mag._ ( d series), vi, ; and see _infra_.) others did not, even then, entertain mr. wait's reverence for washington, when it came to accepting the constitution because of his support. when hamilton asked general lamb how he could oppose the constitution when it was certain that his "good friend genl. washington would ... be the first president under it," lamb "reply'd that ... after him genl. slushington might be the next or second president." (ledlie to lamb; ms., n.y. hist. soc.) [ ] mcmaster and stone, - . [ ] _ib._, . [ ] _ib._, - . [ ] _ib._ [ ] "address of the minority"; mcmaster and stone, - . [ ] "address of the minority"; mcmaster and stone, . [ ] _ib._, - . [ ] _ib._, . [ ] see various contemporary accounts of this riot reprinted in mcmaster and stone, - . [ ] the authorship of the "letters of centinel" remains unsettled. it seems probable that they were the work of eleazer oswald, printer of the _independent gazetteer_, and one george bryan, both of philadelphia. (see _ib._, - , and footnote.) [ ] "letters of centinel," no. , _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] mcmaster and stone, . [ ] _ib._, , , , , , . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, ; and see _infra_, chap. xi. [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] mcmaster and stone, . [ ] _ib._, . [ ] "a real patriot," in _independent gazetteer_, reprinted in mcmaster and stone, . [ ] "gomes," in _ib._, . [ ] h. chapman to stephen collins, june , ; ms., lib. cong. oswald, like thomas paine, was an englishman. [ ] madison to jefferson, feb. , ; _writings_: hunt, v, . [ ] madison to jefferson, feb. , ; _writings_: hunt, v, . [ ] gore to thatcher, june , ; _hist. mag._ ( d series), vi, . this was a very shrewd move; for hancock had not yet been won over to the constitution; he was popular with the protesting delegates, and perhaps could not have been defeated had they made him their candidate for presiding officer; the preferment flattered hancock's abnormal vanity and insured the constitutionalists against his active opposition; and, most of all, this mark of their favor prepared the way for the decisive use the constitutionalist leaders finally were able to make of him. madison describes hancock as being "weak, ambitious, a courtier of popularity, given to low intrigue." (madison to jefferson, oct. , ; _writings_: hunt, v, .) [ ] madison to jefferson, feb. , ; _writings_: hunt, v, . [ ] madison to pendleton, feb. , ; _ib._, . [ ] king to madison, jan. , ; king, i, . [ ] _ib._, . [ ] elliott, ii, . [ ] harding, . these towns were bitterly opposed to the constitution. had they sent delegates, massachusetts surely would have rejected the constitution; for even by the aid of the deal hereafter described, there was a very small majority for the constitution. and if massachusetts had refused to ratify it, virginia would, beyond the possibility of a doubt, have rejected it also. (see _infra_, chaps. x, xi, and xii.) and such action by massachusetts and virginia would, with absolute certainty, have doomed the fundamental law by which the nation to-day exists. thus it is that the refusal of forty-six massachusetts towns to send representatives to the state convention changed the destiny of the republic. [ ] hill to thatcher, dec. , ; _hist. mag._ ( d series), vi, . [ ] lee to thatcher, jan. , ; _ib._, - . [ ] _ib._, . [ ] _ib._ [ ] bangs to thatcher, jan. , ; _hist. mag._ ( d series), vi, . [ ] sewall to thatcher, jan. , ; _hist. mag._ ( d series), vi, - . [ ] savage to thatcher, jan. , ; _ib._, . [ ] barrell to thatcher, jan. , ; _ib._, . [ ] wait to thatcher, jan. , ; _hist. mag._ ( d series), vi, . wait was an unusually intelligent and forceful editor of a new england newspaper, the _cumberland gazette_. (_ib._, .) [ ] gore to thatcher, dec. , ; _ib._, . [ ] lincoln to washington, feb. , ; _cor. rev._: sparks, iv, . [ ] see _infra_. [ ] king to madison, jan. , ; king, i, . [ ] elliott, ii, - . [ ] _ib._, . [ ] elliott, ii, . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] elliot, ii, . [ ] _ib._, - . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] _ib._, . [ ] elliott, ii, - . mr. thatcher made the best summary of the unhappy state of the country under the confederation. (_ib._, - .) [ ] king to madison, jan. , ; king, i, . [ ] rives, ii, - . "to manage the cause against them (the jealous opponents of the constitution) are the present and late governor, three judges of the supreme court, fifteen members of the senate, twenty-four among the most respectable of the clergy, ten or twelve of the first characters at the bar, judges of probate, high sheriffs of counties, and many other respectable people, merchants, &c., generals heath, lincoln, brooks, and others of the late army." (nathaniel gorham to madison, quoted in _ib._) [ ] "hancock has committed himself in our favor.... you will be astonished, when you see the list of names that such an union of men has taken place on this question. hancock will, hereafter, receive the universal support of bowdoin's friends; _and we told him, that, if virginia does not unite, which is problematical, he is considered as the only fair candidate for president_." (king to knox, feb. , ; king, i, . the italics are those of king.) [ ] _ib._, ii, . [ ] elliott, ii, - . [ ] _ib._, . [ ] elliott, ii, . [ ] madison to randolph, april , ; _writings_: hunt, v, . [ ] elliott, ii, - . [ ] widgery to thatcher, feb. , ; _hist. mag._ ( d series), vi, . [ ] _ib._ [ ] elliott, ii, . [ ] widgery to thatcher, feb. , ; _hist. mag._ ( d series), vi, - . [ ] king to madison, feb. , ; king, i, . [ ] gerry, in ford: _p. on c._, - . [ ] _ib._, . when a bundle of copies of gerry's pamphlet was received by the new york anti-constitutionalists in albany county, they decided that it was "in a style too sublime and florid for the common people in this part of the country." (_ib._, .) [ ] during the debates the _boston gazette_ published the following charge that bribery was being employed to get votes for the constitution:-- /# _bribery and corruption!!!_ "the most diabolical plan is on foot to corrupt the members of the convention, who oppose the adoption of the new constitution. large sums of money have been brought from a neighboring state for that purpose, contributed by the wealthy. if so, is it not probable there may be collections for the same accursed purpose nearer home? centinel." (elliott, ii, .) #/ the convention appointed a committee to investigate (_ib._); it found that the charge was based on extremely vague rumor. (harding, .) there the matter appears to have been dropped. more than eighty years afterward, henry b. dawson, the editor of the _historical magazine_, a scholar of standing, asserted, personally, in his publication: "it is very well known--indeed, the son and biographer of one of the great leaders of the constitutionalists in new york has frankly admitted to us--_that enough members of the massachusetts convention were bought with money_ from new york _to secure the ratification of the new system by massachusetts_." (_hist. mag._ ( d series), vi, , footnote, referring to savage's letter to thatcher telling of the charge in the _boston gazette_.) professor harding discredits the whole story. (harding, - .) it is referred to only as showing the excited and suspicious temper of the times. [ ] langdon to washington, feb. , ; _cor. rev._: sparks, iv, . "at least three fourths of the property, and a large proportion of the abilities in the state are friendly to the proposed system. the opposition here, as has generally been the case, was composed of men who were involved in debt." (lear to washington, june , ; _ib._, - .) [ ] lear to washington, june , ; _cor. rev._: sparks, iv, . [ ] langdon to king, feb. , ; king, i, - . [ ] madison to pendleton, march , (_writings_: hunt, v, ), and to washington, march , (_ib._, ); and to randolph; march , (_ib._, ). [ ] langdon to king, may , ; king, i, . [ ] washington to lafayette, feb. , ; _writings_: ford, xi, . [ ] marshall, ii, . [ ] _ib._ [ ] washington to madison, jan. , ; _writings_: ford, xi, . chapter x in the great convention there is no alternative between the adoption of it [the constitution] and anarchy. (washington.) i look on that paper as the most fatal plan that could possibly be conceived to enslave a free people. (henry.) more, much more, went forward in the virginia struggle than appeared upon the surface. noble as was the epochal debate in virginia's constitutional convention, it was not so influential on votes of the members as were other methods[ ] employed by both sides. very practical politicians, indeed, were these contending moulders of destiny. having in mind the pennsylvania storm; with the picture before them of the delicate and skillful piloting by which alone the constitution had escaped the rocks in the tempestuous massachusetts seas; with the hurricane gathering in new york and its low thunders heard even from states that had ratified--the virginia constitutionalists took no chances, neglected no precaution. throughout the country the constitutionalists were now acting with disciplined dispatch. intelligence of the new hampshire convention, of their success in which the constitutionalists finally had made sure, was arranged to be carried by swift riders and relays of horses across country to hamilton in new york; and "any expense which you may incur will be cheerfully repaid," king assured langdon.[ ] as to virginia, hamilton wrote madison to send news of "_any decisive_ question ... if favorable ... by an express ... with pointed orders to make all possible diligence, by changing horses etc."; assuring madison, as king did langdon, that "all expense shall be thankfully and liberally paid."[ ] the constitutionalists, great and small, in other states were watching virginia's convention through the glasses of an infinite apprehension. "i fear that overwhelming torrent, patrick henry," general knox confided to king.[ ] even before massachusetts had ratified, one jeremiah hill thought that "the fate of this constitution and the political salvation of the united states depend cheifly on the part that virginia and this state [massachusetts] take in the matter."[ ] hamilton's lieutenant, king, while in boston helping the constitutionalists there, wrote to madison: "you can with difficulty conceive the real anxiety experienced in massachusetts concerning your decision."[ ] "our chance of success depends on you," was hamilton's own despairing appeal to the then leader of the southern constitutionalists. "if you do well there is a gleam of hope; but certainly i think not otherwise."[ ] the worried new york constitutionalist commander was sure that virginia would settle the fate of the proposed national government. "god grant that virginia may accede. the example will have a vast influence."[ ] virginia's importance justified the anxiety concerning her action. not only was the old dominion preëminent in the part she had taken in the revolution, and in the distinction of her sons like henry, jefferson, and washington, whose names were better known in other states than those of many of their own most prominent men; but she also was the most important state in the confederation in population and, at that time, in resources. "her population," says grigsby, "was over three fourths of all that of new england;... not far from double that of pennsylvania;... or from three times that of new york ... over three fourths of all the population of the southern states;... and more than a fifth of the population of the whole union."[ ] the virginia constitutionalists had chosen their candidates for the state convention with painstaking care. personal popularity, family influence, public reputation, business and financial power, and everything which might contribute to their strength with the people, had been delicately weighed. the people simply would not vote against such men as pendleton, wythe, and carrington;[ ] and these and others like them accordingly were selected by the constitutionalists as candidates in places where the people, otherwise, would have chosen antagonists to the constitution. more than one fourth of the virginia convention of one hundred and seventy members had been soldiers in the revolutionary war; and nearly all of them followed washington in his desire for a strong national government. practically all of virginia's officers were members of the cincinnati; and these were a compact band of stern supporters of the "new plan."[ ] some of the members had been tories, and these were stingingly lashed in debate by mason; but they were strong in social position, wealth, and family connections, and all of them were for the constitution.[ ] no practical detail of election day had been overlooked by the constitutionalists. colonel william moore wrote to madison, before the election came off: "you know the disadvantage of being absent at elections.... i must therefore entreat and conjure you--nay, command you, if it were in my power--to be here."[ ] the constitutionalists slipped in members wherever possible and by any device. particularly in henrico county, where richmond was situated, had conditions been sadly confused. edmund randolph, then governor of the state, who next to washington was virginia's most conspicuous delegate to the federal convention, had refused to sign the constitution and was, therefore, popularly supposed to be against it. october , , he wrote a letter to the speaker of the house of delegates explaining his reasons for dissent. he approved the main features of the proposed plan for a national government but declared that it had fatal defects, should be amended before ratification, a new federal convention called to pass upon the amendments of the various states, and, thereafter, the constitution as amended again submitted for ratification to state conventions.[ ] randolph, however, did not send this communication to the speaker "lest in the diversity of opinion i should excite a contest unfavorable to that harmony with which i trust that great subject will be discussed."[ ] but it was privately printed in richmond and randolph sent a copy to washington. on january , , the letter was published in the _virginia gazette_ together with other correspondence. in an additional paragraph, which does not appear in randolph's letter as reproduced in elliott, he said that he would "regulate himself by the spirit of america" and that he would do his best to amend the constitution prior to ratification, but if he could not succeed he would accept the "new plan" as it stood.[ ] but he had declared to richard henry lee that "either a monarchy or aristocracy will be generated" by it.[ ] thus randolph to all appearances occupied middle ground. but, publicly, he was in favor of making strenuous efforts to amend the constitution as a condition of ratification, and of calling a second federal convention; and these were the means by which the anti-constitutionalists designed to accomplish the defeat of the "new plan." the opponents of the proposed national government worked hard with randolph to strengthen his resolution and he gave them little cause to doubt their success.[ ] but the constitutionalists were also busy with the governor and with greater effect. washington wrote an adroit and persuasive letter designed to win him entirely over to a whole-hearted and unqualified advocacy of the constitution. the question was, said washington, the acceptance of the constitution or "a dissolution of the union."[ ] madison, in a subtle mingling of flattery, argument, and insinuation, skillfully besought his "dear friend" randolph to come out for the constitution fully and without reserve. if only randolph had stood for the constitution, wrote madison, "it would have given it a decided and unalterable preponderancy," and henry would have been "baffled." the new england opposition, madison assured randolph, was from "that part of the people who have a repugnance in general to good government ... a part of whom are known to aim at confusion and are suspected of wishing a reversal of the revolution.... nothing can be further from your [randolph's] views than the principles of the different sets of men who have carried on their opposition under the respectability of your name."[ ] randolph finally abandoned all opposition and resolved to support the constitution even to the point of resisting the very plan he had himself proposed and insisted upon; but nobody, with the possible exception of washington, was informed of this constitutionalist master-stroke until the convention met;[ ] and, if washington knew, he kept the secret. thus, although the constitutionalists were not yet sure of randolph, they put up no candidate against him in henrico county, where the people were very much opposed to the constitution. to have done so would have been useless in any event; for randolph could have been elected almost unanimously if his hostility to the proposed government had been more vigorous, so decided were the people's dislike and distrust of it, and so great, as yet, the governor's popularity. he wrote madison a day or two before the election that nothing but his personal popularity "could send me; my politicks not being sufficiently strenuous against the constitution."[ ] the people chose their beloved young governor, never imagining that he would appear as the leading champion of the constitution on the convention floor and actually oppose amending it before ratification.[ ] but the people were not in the dark when they voted for the only candidate the constitutionalists openly brought out in henrico county. john marshall was for the proposed national government, outright and aboveboard. he was vastly concerned. we find him figuring out the result of the election in northern virginia and concluding "that the question will be very nice."[ ] marshall had been made the constitutionalist candidate solely because of his personal popularity. as it was, even the people's confidence in him barely had saved marshall. "marshall is in danger," wrote randolph; "but f. [dr. foushee, the anti-constitutionalist candidate] is not popular enough on other scores to be elected, altho' he is perfectly a henryite."[ ] marshall admitted that the people who elected randolph and himself were against the constitution; and declared that he owed his own election to his individual strength with the people.[ ] thus two strong champions of the constitution had been secured from an anti-constitutionalist constituency; and these were only examples of other cases. the anti-constitutionalists, too, straining every nerve to elect their men, resorted to all possible devices to arouse the suspicions, distrust, and fears of the people. "the opposition to it [the constitution] ... is addressed more to the passions than to the reason," declared washington.[ ] henry was feverishly active. he wrote flaming letters to kentucky that the mississippi would be lost if the new plan of government were adopted.[ ] he told the people that a religious establishment would be set up.[ ] the reverend john blair smith, president of hampden sidney college, declared that henry "has descended to lower artifices and management ... than i thought him capable of."[ ] writing to hamilton of the activities of the opposition, washington asserted that "their assiduity stands unrivalled";[ ] and he informed trumbull that "the opponents of the constitution are indefatigable."[ ] "every art that could inflame the passions or touch the interests of men have been essayed;--the ignorant have been told that should the proposed government obtain, their lands would be taken from them and their property disposed of;--and all ranks are informed that the prohibition of the navigation of the mississippi (their favorite object) will be a certain consequence of the adoption of the constitution."[ ] plausible and restrained richard henry lee warned the people that "by means of taxes, the government may command the whole or any part of the subjects' property";[ ] and that the constitution "promised a large field of employment to military gentlemen, and gentlemen of the law; and in case the government shall be executed without convulsions, it will afford security to creditors, to the clergy, salary-men and others depending on money payments."[ ] nor did the efforts of the virginia opponents of a national establishment stop there. they spread the poison of personal slander also. "they have attempted to vilify & debase the characters who formed" the constitution, complained washington.[ ] these cunning expedients on one side and desperate artifices on the other were continued during the sitting of the virginia convention by all the craft and guile of practical politics. after the election, madison reported to jefferson in paris that the northern neck and the valley had elected members friendly to the constitution, the counties south of the james unfriendly members, the "intermediate district" a mixed membership, with kentucky divided. in this report, madison counts marshall fifth in importance of all constitutionalists elected, and puts only pendleton, wythe, blair, and innes ahead of him.[ ] when the convention was called to order, it made up a striking and remarkable body. judges and soldiers, lawyers and doctors, preachers, planters, merchants, and indian fighters, were there. scarcely a field fought over during the long, red years of the revolution but had its representative on that historic floor. statesmen and jurists of three generations were members.[ ] from the first the constitutionalists displayed better tactics and discipline than their opponents, just as they had shown greater skill and astuteness in selecting candidates for election. they arranged everything beforehand and carried their plans out with precision. for the important position of president of the convention, they agreed on the venerable chancellor, edmund pendleton, who was able, judicial, and universally respected. he was nominated by his associate, judge paul carrington, and unanimously elected.[ ] in the same way, wythe, who was learned, trusted, and beloved, and who had been the teacher of many members of the convention, was made chairman of the committee of the whole. the anti-constitutionalists did not dare to oppose either pendleton or wythe for these strategic places. they had made the mistake of not agreeing among themselves on strong and influential candidates for these offices and of nominating them before the constitutionalists acted. for the first time in virginia's history, a shorthand reporter, david robertson, appeared to take down a stenographic report of the debates; and this innovation was bitterly resented and resisted by the opposition[ ] as a constitutionalist maneuver.[ ] marshall was appointed a member of the committee[ ] which examined the returns of the elections of members and also heard several contested election cases.[ ] [illustration: george wythe] at the beginning the anti-constitutionalists did not decide upon a plan of action--did not carefully weigh their course of procedure. no sooner had rules been adopted, and the constitution and official documents relating to it laid before the convention, than their second tactical mistake was made; and made by one of their very ablest and most accomplished leaders. when george mason arose, everybody knew that the foes of the constitution were about to develop the first move in their order of battle. spectators and members were breathless with suspense. mason was the author of virginia's constitution and bill of rights and one of the most honorable, able, and esteemed members of the legislature. he had been a delegate to the federal convention and, with randolph, had refused to sign the constitution. sixty-two years old, his snow-white hair contrasting with his blazing dark eyes, his commanding stature clad in black silk, his full, clear voice deliberate and controlled, george mason was an impressive figure as he stood forth to strike the first blow at the new ordinance of nationality.[ ] on so important a subject, he did not think any rules should prevent "the fullest and clearest investigation." god's curse would be small compared with "what will justly fall upon us, if from any sinister views we obstruct the fullest inquiry." the constitution, declared mason, should be debated, "clause by clause," before any question was put.[ ] the constitutionalists, keen-eyed for any strategic blunder of their adversaries, took instant advantage of mason's bad generalship. madison suavely agreed with mason,[ ] and it was unanimously resolved that the constitution should be "discussed clause by clause through all its parts,"[ ] before any question should be put as to the instrument itself or any part of it. thus the opposition presented to the constitutionalists the very method the latter wished for, and had themselves planned to secure, on their own initiative.[ ] the strength of the foes of the proposed national government was in attacking it as a whole; their weakness, in discussing its specific provisions. the danger of the constitutionalists lay in a general debate on the large theory and results of the constitution; their safety, in presenting in detail the merits of its separate parts. while the fight over the constitution was partly an economic class struggle, it was in another and a larger phase a battle between those who thought nationally and those who thought provincially. in hostile array were two central ideas: one, of a strong national government acting directly on men; the other, of a weak confederated league merely suggesting action to states. it was not only an economic contest, but also, and even more, a conflict by those to whom "liberty" meant unrestrained freedom of action and speech, against those to whom such "liberty" meant tumult and social chaos. the mouths of the former were filled with those dread and sounding words "despotism" and "arbitrary power"; the latter loudly denounced "enemies of order" and "foes of government." the one wanted no bits in the mouth of democracy, or, at most, soft ones with loose reins and lax hand; the other wished a stout curb, stiff rein, and strong arm. the whole controversy, on its popular side, resounded with misty yet stirring language about "liberty," "aristocracy," "tyranny," "anarchy," "licentiousness"; and yet "debtor," "creditor," "property and taxes," "payment and repudiation," were heard among the more picturesque and thrilling terms. in this fundamental struggle of antagonistic theories, the practical advantage for the hour was overwhelmingly with those who resisted the constitution. they had on their side the fears of the people, who, as has appeared, looked on all government with suspicion, on any vital government with hostility, and on a great central government as some distant and monstrous thing, too far away to be within their reach, too powerful to be resisted, too high and exalted for the good of the common man, too dangerous to be tried. it was, to the masses, something new, vague, and awful; something to oppress the poor, the weak, the debtor, the settler; something to strengthen and enrich the already strong and opulent, the merchant, the creditor, the financial interests. true, the people had suffered by the loose arrangement under which they now lived; but, after all, had not they and their "liberties" survived? and surely they would suffer even more, they felt, under this stronger power; but would they and their "liberties" survive its "oppression"? they thought not. and did not many of the ablest, purest, and most trusted public characters in the old dominion think the same? here was ammunition and to spare for patrick henry and george mason, tyler and grayson, bland and harrison--ammunition and to spare, with their guns planted on the heights, if they could center their fire on the constitution as a single proposition. but they had been sleeping and now awoke to find their position surrendered, and themselves compelled, if mason's resolutions were strictly followed, to make the assault in piecemeal on detached parts of the "new plan," many of which, taken by themselves, could not be successfully combated. although they tried to recover their lost ground and did regain much of it, yet the anti-constitutionalists were hampered throughout the debate by this initial error in parliamentary strategy.[ ] and now the constitutionalists were eager to push the fighting. the soldierly lee was all for haste. the anti-constitutionalists held back. mason protested "against hurrying them precipitately." harrison said "that many of the members had not yet arrived."[ ] on the third day, the convention went into committee of the whole, with the astute and venerable wythe in the chair. hardly had this brisk, erect little figure--clad in single-breasted coat and vest, standing collar and white cravat, bald, except on the back of the head, from which unqueued and unribboned gray hair fell and curled up from the neck[ ]--taken the gavel before patrick henry was on his feet. henry moved for the reading of the acts by authority of which the federal convention at philadelphia had met,[ ] for they would show the work of that convention to be illegal and the constitution the revolutionary creature of usurped power. if henry could fix on the advocates of stronger law and sterner order the brand of lawlessness and disorder in framing the very plan they now were championing, much of the mistake of yesterday might be retrieved. but it was too late. helped from his seat and leaning on his crutches, pendleton was recognized by wythe before henry could get the eye of the chair to speak upon his motion; and the veteran jurist crushed henry's purpose before the great orator could make it plain. "we are not to consider," said pendleton, "whether the federal convention exceeded their powers." that question "ought not to influence our deliberations." even if the framers of the constitution had acted without authority, virginia's legislature afterwards had referred it to the people who had elected the present convention to pass upon it.[ ] pendleton's brief speech was decisive;[ ] henry withdrew his motion; the preamble and the first two sections of the first article of the constitution were laid before the committee and the destiny-determining debate began. the constitutionalists, who throughout the contest never made a mistake in the men they selected to debate or the time when they should speak, had chosen skillfully the parliamentary artillerist to fire their opening gun. they did not wait for the enemy's attack, but discharged the first shot themselves. quickly there arose a broad, squat, ungainly man, "deformed with fat," shaggy of brow, bald of head, gray-eyed, with a nose like the beak of an eagle, and a voice clear and emotionless.[ ] george nicholas had been a brave, brilliant soldier and was one of the ablest and best-equipped lawyers in the state. he was utterly fearless, whether in battle on the field or in debate on the floor. his family and connections were powerful. in argument and reasoning he was the equal if not the superior of madison himself; and his grim personality made the meek one of madison seem tender in comparison. nothing could disconcert him, nothing daunt his cold courage. he probably was the only man in the convention whom henry feared.[ ] nicholas was glad, he said, that the convention was to act with the "fullest deliberation." first he thrust at the method of the opposition to influence members by efforts outside the convention itself; and went on with a clear, logical, and informed exposition of the sections then under consideration. he ended by saying "that he was willing to trust his own happiness, and that of his posterity, to the operation of that system."[ ] the constitution's enemies, thus far out-pointed by its perfectly trained and harmonious supporters, could delay no longer. up rose the idol and champion of the people. although only fifty-two years old, he had changed greatly in appearance since the days of his earlier triumphs. the erect form was now stooped; spectacles now covered the flashing eyes and the reddish-brown hair was replaced by a wig, which, in the excitement of speech, he frequently pushed this way and that. but the wizard brain still held its cunning, the magic tongue which, twenty-three years ago had trumpeted independence, still wrought its spell.[ ] patrick henry began his last great fight. what, asked henry, were the reasons for this change of government? a year ago the public mind was "at perfect repose"; now it was "uneasy and disquieted." "a wrong step now ... and our republic may be lost." it was a great consolidated government that the constitutionalists proposed, solemnly asserted henry. what right, he asked, had the framers of the constitution to say, "_we, the people_, instead of _we, the states_"? he demanded the cause of that fundamental change. "even from that illustrious man [washington] who saved us by his valor, i would have a reason for his conduct." the constitution-makers had no authority except to amend the old system under which the people were getting along very well. why had they done what they had no power to do?[ ] thus henry put the constitutionalists on the defensive. but they were ready. instantly, randolph was on his feet. he was thirty-seven years of age, fashioned on noble physical lines, with handsome face and flowing hair. his was one of virginia's most distinguished families, his connections were influential, and he himself was the petted darling of the people. his luxuriant mind had been highly trained, his rich and sonorous voice gave an added charm to his words.[ ] he was the ostensible author[ ] of the plan on the broad lines of which the constitution finally had been built. his refusal to sign it because of changes which he thought necessary, and his conversion to the extreme constitutionalist position, which he now, for the first time, was fully to disclose, made him the strongest single asset the constitutionalists had acquired. randolph's open, bold, and, to the public, sudden championship of the constitution was the explosion in the opposition's camp of a bomb which they had hoped and believed their own ammunition. never before, said randolph, had such a vast event come to a head without war or force. it might well be feared that the best wisdom would be unequal to the emergency and that passion might prevail over reason. he warned the opposition that the chair "well knows what is order, how to command obedience, and that political opinions may be as honest on one side as on the other." randolph then tried to explain his change. "i had not even the glimpse of the genius of america," said he of his refusal to sign the report of the federal convention. but it was now so late that to insist on amendments before ratification would mean "inevitable ruin to the union";[ ] and he would strike off his arm rather than permit that. randolph then reviewed the state of the country under the confederation: congress powerless, public credit ruined, treaties violated, prices falling, trade paralyzed, "and justice trampled under foot." the world looks upon americans "as little wanton bees, who had played for liberty, but had no sufficient solidity or wisdom" to keep it. true, the federal convention had exceeded its authority, but there was nothing else to be done. and why not use the expression "we, the people"? was the new government not for them? the union is now at stake, and, exclaimed he, "i am a friend to the union."[ ] the secret was out, at last; the constitutionalists' _coup_ was revealed. his speech placed randolph openly and unreservedly on their side. "the governor has ... thrown himself fully into the federal scale," gleefully reported the anxious madison to the supreme nationalist chieftain at mount vernon.[ ] "the g[overno]r exhibited a curious spectacle to view. having refused to sign the paper [the constitution] everybody supposed him against it," was jefferson's comment on randolph's change of front.[ ] washington, perfectly informed, wrote jay in new york that "mr. randolph's declaration will have considerable effect with those who had hitherto been wavering."[ ] theodoric bland wrote bitterly to arthur lee that, "our chief magistrate has at length taken his party and appears to be reprobated by the honest of both sides.... he has openly declared for posterior amendments, or in other words, unconditional submission."[ ] all of randolph's influence, popularity, and prestige of family were to be counted for the constitution without previous amendment; and this was a far weightier force, in the practical business of getting votes for ratification, than oratory or argument.[ ] so "the sanguine friends of the constitution counted upon a majority of twenty ... which number they imagine will be greatly increased."[ ] randolph's sensational about-face saved the constitution. nothing that its advocates did during these seething three weeks of able discussion and skillful planning accomplished half so much to secure ratification. washington's tremendous influence, aggressive as it was tactful, which, as monroe truly said, "carried" the new national plan, was not so practically effective as his work in winning randolph. for, aside from his uncloaked support, the virginia governor at that moment had a document under lock and key which, had even rumor of it got abroad, surely would have doomed the constitution, ended the debate abruptly, and resulted in another federal convention to deal anew with the articles of confederation. by now the anti-constitutionalists, or republicans as they had already begun to call themselves, also were acting in concert throughout the country. their tactics were cumbersome and tardy compared with the prompt celerity of the well-managed constitutionalists; but they were just as earnest and determined. the society of the federal republicans had been formed in new york to defeat the proposed national government and to call a second federal convention. it opened correspondence in most of the states and had agents and officers in many of them. new york was overwhelmingly against the constitution, and her governor, george clinton, was the most stubborn and resourceful of its foes. on december , , governor randolph, under the formal direction of virginia's legislature, had sent the governors of the other states a copy of the act providing for virginia's convention, which included the clause for conferring with her sister commonwealths upon the calling of a new federal convention. the one to clinton of new york was delayed in the mails for exactly two months and eleven days, just long enough to prevent new york's legislature from acting on it.[ ] after pondering over it for a month, the new york leader of the anti-constitutionalist forces wrote governor randolph, more than three weeks before the virginia convention assembled, the now famous letter stating that clinton was sure that the new york convention, to be held june , "will, with great cordiality, hold a communication with any sister state on the important subject [a new federal convention] and especially with one so respectable in point of importance, ability, and patriotism as virginia"; and clinton assumed that the virginia convention would "commence the measures for holding such communications."[ ] when clinton thus wrote to randolph, he supposed, of course, that the virginia governor was against the constitution. had the new york executive known that randolph had been proselyted by the constitutionalists, clinton would have written to henry, or mason, or taken some other means of getting his letter before the virginia convention. randolph kept all knowledge of clinton's fatal communication from everybody excepting his executive council. he did not make it public until after the long, hard struggle was ended; when, for the first time, too late to be of any effect, he laid the new york communication before the virginia legislature which assembled just as the convention was adjourning.[ ] weighty as were the arguments and brilliant the oratory that made the virginia debate one of the noblest displays of intellect and emotion which the world ever has seen, yet nothing can be plainer than that other practices on both sides of that immortal struggle were more decisive of the result than the amazing forensic duel that took place on the floor of the convention hall. when one reflects that although the weight of fact and reason was decisively in favor of the constitutionalists; that their forces were better organized and more ably led; that they had on the ground to help them the most astute politicians from other states as well as from virginia; that washington aggressively supported them with all his incalculable moral influence; that, if the new national government were established, this herculean man surely would be president with all the practical power of that office, of which patronage was not the least--when one considers that, notwithstanding all of these and many other crushing advantages possessed by the constitutionalists, their majority, when the test vote finally came, was only eight out of a total vote of one hundred and sixty-eight; when one takes into account the fact that, to make up even this slender majority, one or two members violated their instructions and several others voted against the known will of their constituents, it becomes plain how vitally necessary to their cause was the constitutionalists' capture of the virginia governor.[ ] the opponents of the proposed national government never forgave him nor was his reputation ever entirely reëstablished. mason thereafter scathingly referred to randolph as "young a[rno]ld."[ ] answering randolph, mason went to the heart of the subject. "whether the constitution be good or bad," said he, "it is a national government and no longer a confederation ... that the new plan provides for." the power of direct taxation alone "is calculated to annihilate totally the state governments." it means, said mason, individual taxation "by two different and distinct powers" which "cannot exist long together; the one will destroy the other." one national government is not fitted for an extensive country. "popular governments can only exist in small territories." a consolidated government "is one of the worst curses that can possibly befall a nation." clear as this now was, when the convention came to consider the judiciary clause, everybody would, mason thought, "be more convinced that this government will terminate in the annihilation of the state governments." but here again the author of virginia's bill of rights made a tactical mistake from the standpoint of the management of the fight, although it was big-hearted and statesmanlike in itself. "if," said he, "such amendments be introduced as shall exclude danger ... i shall most heartily make the greatest concessions ... to obtain ... conciliation and unanimity."[ ] no grindstone, this, to sharpen activity--no hammer and anvil, this, to shape and harden an unorganized opposition into a single fighting blade, wielded to bring victory or even to force honorable compromise. the suggestion of conciliation before the first skirmish was over was not the way to arouse the blood of combat in the loose, undisciplined ranks of the opposition. swift as any hawk, the constitutionalists pounced upon mason's error, but they seized it gently as a dove. "it would give me great pleasure," cooed madison, "to concur with my honorable colleague in any conciliatory plan." but the hour was now late, and he would postpone further remarks for the time being.[ ] so the convention adjourned and the day ended with the constitutionalists in high spirits.[ ] madison wrote to washington that "henry & mason made a lame figure & appeared to take different and awkward ground. the federalists [constitutionalists][ ] are a good deal elated by the existing prospect." nevertheless, the timid madison fluttered with fear. "i dare not," wrote he, "speak with certainty as to the decision. kentucky has been extremely tainted and is supposed to be generally adverse, and every possible piece of address is going on privately to work on the local interests & prejudices of that & other quarters."[ ] the next day the building of the new academy, where the convention met, was packed with an eager throng. everybody expected madison to engage both henry and mason as he had intimated that he would do. but once more the excellent management of the constitutionalists was displayed. madison, personally, was not popular,[ ] he was physically unimpressive, and strong only in his superb intellect. the time to discharge the artillery of that powerful mind had not yet come. madison was not the man for this particular moment. but pendleton was, and so was "light-horse harry" lee. the constitutionalists combined the ermine and the sword. virginia's most venerated jurist and her most dashing soldier were ordered to the front. in them there was an appeal to much that the old dominion still reverenced and loved, in spite of the "levelling spirit" manifest there as well as in massachusetts and other states. so when all eyes were turned on madison's seat, they beheld it vacant. madison had stayed away. had he been present, he could not have avoided speaking. dramatic, indeed, appeared the white-haired, crippled jurist, as, struggling to his feet, he finally stood upon his crutches and faced the convention. he had been unused to public debate for many years, and was thought to be so infirm that no one expected him to do more than make or decide points of order and give his vote. yet there the feeble old man stood to answer the resistless henry and the learned mason. his ancient friend and brother justice, wythe, leaned forward from his chair to catch the tones of the beloved voice. tears rolled down the cheeks of some of the oldest members who for decades had been pendleton's friends.[ ] the constitutionalists had set the stage to catch the emotions which they affected to despise, with the very character whose strength was in that pure reasoning on which they pretended solely to rely. without wasting a word, pendleton came to the point. henry, he said, had declared that all was well before "this federal system was thought of." was that accurate? in a few short sentences he showed that it was not. there was, said pendleton, "no quarrel between government and liberty; the former is shield and protector of the latter. the war is between government and licentiousness, faction, turbulence, and other violations of the rules of society to preserve liberty." why are the words "we, the people," improper? "who but the people have a right to form government?... what have the state governments to do with it?" had the federal convention exceeded its powers? no. because those powers were "to propose, not to determine." "suppose," asked the venerable pendleton, "the paper on your table [the constitution] dropped from one of the planets; the people found it, and sent us here to consider whether it was proper for their adoption; must we not obey them?" of course. "then the question must be between this government and the confederation," which "is no government at all." the confederation did not carry us through the war; "common danger and the spirit of america" did that. the cry "united we stand--divided we fall," which "echoed and reëchoed through america--from congress to the drunken carpenter"--saved us in that dark hour. and pendleton clearly, briefly, solidly, answered every objection which mason and henry had made. nothing could have been more practically effective than his close. he was of no party, pendleton avowed; and his "age and situation" proved that nothing but the general good influenced him.[ ] the smouldering fires in henry's blood now burned fiercely. this was the same pendleton who had fought henry in his immortal resolution on the stamp act in and in every other of those epochal battles for liberty and human rights which henry had led and won.[ ] but the constitutionalists gave the old war horse no chance to charge upon his lifelong opponent. a young man, thirty-two years of age, rose, and, standing within a few feet of the chair, was recognized. six feet tall, beautiful of face, with the resounding and fearless voice of a warrior, henry lee looked the part which reputation assigned him. descended from one of the oldest and most honorable families in the colony, a graduate of princeton college, one of the most daring, picturesque, and attractive officers of the revolution, in which by sheer gallantry and military genius he had become commander of a famous cavalry command, the gallant lee was a perfect contrast to the venerable pendleton.[ ] lee paid tribute to henry's shining talents; but, said he, "i trust that he [henry] is come to judge, and not to alarm." henry had praised washington; yet washington was for the constitution. what was there wrong with the expression "we, the people," since upon the people "it is to operate, if adopted"? like every constitutionalist speaker, lee painted in somber and forbidding colors the condition of the country, "all owing to the imbecility of the confederation."[ ] at last henry secured the floor. at once he struck the major note of the opposition. "the question turns," said he, "on that poor little thing--the expression, 'we, the _people_; instead of the _states_.'" it was an "alarming transition ... a revolution[ ] as radical as that which separated us from great britain.... sovereignty of the states ... rights of conscience, trial by jury, liberty of the press, ... all pretensions of human rights and privileges" were imperiled if not lost by the change. it _was_ the "despised" confederation that had carried us through the war. think well, he urged, before you part with it. "revolutions like this have happened in almost every country in europe." the new government may prevent "licentiousness," but also "it will oppress and ruin the people," thundered their champion. the constitution was clear when it spoke of "sedition," but fatally vague when it spoke of "privileges." where, asked henry, were the dangers the constitutionalists conjured up? purely imaginary! if any arose, he depended on "the american spirit" to defend us. the method of amendment provided in the constitution, exclaimed henry, was a mockery--it shut the door on amendment. "a contemptible minority can prevent the good of the majority." "a standing army" will "execute the execrable commands of tyranny," shouted henry. and who, he asked, will punish them? "will your mace-bearer be a match for a disciplined regiment?" if the constitution is adopted, "it will be because we like a great splendid" government. "the ropes and chains of consolidation" were "about to convert this country into a powerful and mighty empire." the constitution's so-called checks and balances, sneered henry, were "rope-dancing, chain-rattling, ridiculous ... contrivances." the constitutionalists talked of danger if the confederation was continued; yet, under it, declared henry, "peace and security, ease and content" were now the real lot of all. why, then, attempt "to terrify us into an adoption of this new form of government?... who knows the dangers this new system may produce? they are out of sight of the common people; they cannot foresee latent consequences." it was the operation of the proposed national government "on the middling and lower classes of people" that henry feared. "this government" [the constitution], cried he, "is not a virginian but an american government." throughout henry's speech, in which he voiced, as he never failed to do, the thought of the masses, a national government is held up as a foreign power--even one so restricted as the literal words of the constitution outlined. had the constitutionalists acknowledged those nationalist opinions which, in later years, were to fall from the lips of a young member of the convention and become the law of the land, the defeat of the constitution would have been certain, prompt, and overwhelming. in the constitution's chief executive, henry saw "a great and mighty president" with "the powers of a king ... to be supported in extravagant magnificence." the national government's tax-gatherers would "ruin you with impunity," he warned his fellow members and the people they represented. did not virginia's own "state sheriffs, those unfeeling blood-suckers," even "under the watchful eye of our legislature commit the most horrid and barbarous ravages on our people? ... lands have been sold," asserted he, "for shillings which were worth one hundred pounds." what, then, would happen to the people "if their master had been at philadelphia or new york?" asked henry. "these harpies may search at any time your houses and most secret recesses." its friends talked about the beauty of the constitution, but to henry its features were "horribly frightful. among other deformities, it has an awful squinting; it squints toward monarchy." the president, "your american chief," can make himself absolute, dramatically exclaimed the great orator. "if ever he violates the laws ... he will come at the head of his army to carry everything before him; or he will give bail, or do what mr. chief justice will order him." but will he submit to punishment? rather, he will "make one bold push for the american throne," prophesied henry. "we shall have a king; the army will salute him monarch: your militia will leave you, and assist in making him king and fight against you."[ ] it would be infinitely better, he avowed, to have a government like great britain with "king, lords, and commons, than a government so replete with such insupportable evils" as the constitution contained. henry spoke of the danger of the power of congress over elections, and the treaty-making power. a majority of the people were against the constitution, he said, and even "the adopting states have already heart-burnings and animosity and repent their precipitate hurry.... pennsylvania has been tricked into" ratification. "if other states who have adopted it have not been tricked, still they were too much hurried.[ ] ... i have not said the one hundred thousandth part of what i have on my mind and wish to impart"--with these words of warning to the constitutionalists, henry closed by apologizing for the time he had taken. he admitted that he had spoken out of order, but trusted that the convention would hear him again.[ ] studying this attack and defense of master swordsmen, following the tactical maneuvers of america's ablest politicians, a partisan on one side, yet personally friendly with members of the other, john marshall was waiting for the call that should bring him into the battle and, by the method which he employed throughout his life, preparing to respond when the constitutionalist managers should give the word. he was listening to the arguments on both sides, analyzing them, and, by that process of absorption with which he was so peculiarly and curiously gifted, mastering the subjects under discussion. also, although casual, humorous, and apparently indifferent, he nevertheless was busy, we may be sure, with his winning ways among his fellow members. patrick henry's effort was one of the two or three speeches made during the three weeks of debate which actually may have had an effect upon votes.[ ] the constitutionalists feared that henry would take the floor next morning to follow up his success and deepen the profound impression he had made. to prevent this and to break the force of henry's onslaught, they put forward governor randolph, who was quickly recognized by the chair. madison and nicholas were held in reserve.[ ] but in vain did randolph employ his powers of oratory, argument, and persuasion in the great speech beginning "i am a child of the revolution," with which he attempted to answer henry. there is no peace; "the tempest growls over you.... justice is suffocated," he said; legal proceedings to collect debts are "obscured by legislative mists." as an illustration of justice, consider the case of josiah philips, executed without trial or witness, on a bill of attainder passed without debate on the mere report of a member of the legislature: "_this made the deepest impression on my heart and i cannot contemplate it without horror_."[ ] as to "the american spirit" expressed through the militia being competent to the defense of the state, randolph asked: "did ever militia defend a country?" randolph's speech was exhaustive and reached the heights of real eloquence. it all came to this, he said, union or dissolution, thus again repeating the argument washington had urged in his letter to randolph. "let that glorious pride which once defied the british thunder, reanimate you again," he cried dramatically.[ ] but his fervor, popularity, and influence were not enough. marshall, when he came to speak later in the debate, made the same mistake. no more striking illustration exists of how public men, in the hurry and pressure of large affairs, forget the most important events, even when they themselves were principal actors in them. although the time had not properly come for the great logician of the constitution to expound it, the situation now precipitated the psychological hour for him to strike. the chair recognized a slender, short-statured man of thirty-seven, wearing a handsome costume of blue and buff with doubled straight collar and white ruffles on breast and at wrists. his hair, combed forward to conceal baldness, was powdered and fell behind in the long beribboned queue of fashion. he was so small that he could not be seen by all the members; and his voice was so weak that only rarely could he be heard throughout the hall.[ ] such was james madison as he stood, hat in hand and his notes in his hat, and began the first of those powerful speeches, the strength of which, in spite of poor reporting, has projected itself through more than a hundred years. at first he spoke so low that even the reporter could not catch what he said.[ ] he would not, remarked madison, attempt to impress anybody by "ardent professions of zeal for the public welfare." men should be judged by deeds and not by words. the real point was whether the constitution would be a good thing or a bad thing for the country. henry had mentioned the dangers concealed in the constitution; let him specify and prove them. one by one he caught and crushed henry's points in the jaws of merciless logic. what, for the gentle madison, was a bold blow at the opposition shows how even he was angered. "the inflammatory violence wherewith it [the constitution] was opposed by designing, illiberal, and unthinking minds, begins to subside. i will not enumerate the causes from which, in my conception, the heart-burnings of a majority of its opposers have originated." his argument was unanswerable as a matter of pure reason and large statesmanship, but it made little headway and had only slight if any influence. "i am not so sanguine," reported washington's nephew to the general at mount vernon, "as to ... flatter myself that he made many converts."[ ] the third gun of the powerful battery which the constitutionalists had arranged to batter down the results of henry's speech was now brought into action. george nicholas again took the floor. he was surprised that mason's resolution to debate the constitution clause by clause had not been followed. but it had not been, and therefore he must speak at large. while nicholas advanced nothing new, his address was a masterpiece of compact reasoning.[ ] age and middle age had spoken for the constitution; voices from the bench and the camp, from the bar and the seats of the mighty, had pleaded for it; and now the constitutionalists appealed to the very young men of the convention through one of the most attractive of their number. the week must not close with henry's visions of desolation uppermost in the minds of the members. on saturday morning the chair recognized francis corbin of middlesex. he was twenty-eight years old and of a family which had lived in virginia from the early part of the seventeenth century. he had been educated in england at the university of cambridge, studied law at the inner temple, was a trained lawyer, and a polished man of the world. corbin made one of the best speeches of the whole debate. on the nonpayment of our debts to foreign nations he was particularly strong. "what!" said he, "borrow money to discharge interest on what was borrowed?... such a plan would destroy the richest country on earth." as to a republican government not being fitted for an extensive country, he asked, "how small must a country be to suit the genius of republicanism?" the power of taxation was the "lungs of the constitution." his defense of a standing army was novel and ingenious. the speech was tactful in the deference paid to older men, and so captivating in the pride it must have aroused in the younger members that it justified the shrewdness of the constitutionalist generals in putting forward this youthful and charming figure.[ ] of course henry could not follow a mere boy. he cleverly asked that governor randolph should finish, as the latter had promised to do.[ ] randolph could not avoid responding; and his speech, while very able, was nevertheless an attempt to explode powder already burned.[ ] madison saw this, and getting the eye of the chair delivered the second of those intellectual broadsides, which, together with his other mental efforts during the constitutional period, mark him as almost the first, if not indeed the very first, mind of his time.[ ] the philosophy and method of taxation, the history and reason of government, the whole range of the vast subject were discussed,[ ] or rather begun; for madison did not finish, and took up the subject four days later. his effort so exhausted him physically that he was ill for three days.[ ] thus fortune favored henry. the day, saturday, was not yet spent. after all, he could leave the last impression on the members and spectators, could apply fresh color to the picture he wished his hearers to have before their eyes until the next week renewed the conflict. and he could retain the floor so as to open again when monday came. the art of henry in this speech was supreme. he began by stating the substance of thomas paine's terrific sentence about government being, at best, "a necessary evil"; and aroused anew that repugnance to any sturdy rule which was a general feeling in the breasts of the masses. both the confederation and the proposed constitution were "evils," asserted henry, and the only question was which was the less. randolph and madison incautiously had referred to maxims. henry seized the word with infinite skill. "it is impiously irritating the avenging hand of heaven ... to desert those maxims which alone can preserve liberty," he thundered. they were lowly maxims, to be sure, "poor little, humble republican maxims"; but "humble as they are" they alone could make a nation safe or formidable. he rang the changes on the catchwords of liberty. then henry spoke of randolph's change of front. the constitution "was once execrated" by randolph. "it seems to me very strange and unaccountable that that which was the object of his execration should now receive his encomiums. something extraordinary must have operated so great a change in his opinion." randolph had said that it was too late to oppose the "new plan"; but, answered henry, "i can never believe that it is too late to save all that is precious." henry denied the woeful state of the country which the constitutionalist speakers had pictured. the "imaginary dangers" conjured by them were to intimidate the people; but, cried henry, "fear is the passion of slaves." the execution of josiah philips under the bill of attainder was justifiable. philips had been a "fugitive murderer and an outlaw" leader of "an infamous banditti," perpetrator of "the most cruel and shocking barbarities ... an enemy to human nature."[ ] it was not true, declared henry, that the people were discontented under the confederation--at least the common people were not; and it was the common people for whom he spoke. but, of course, sneered that consummate actor, "the middling and lower ranks of people have not those illuminated ideas" which the "well-born" are so happily possessed of; "they [the common people] cannot so readily perceive latent objects." it was only the "illuminated imaginations" and the "microscopic eyes of modern statesmen" that could see defects where there were none. henry hinted with great adroitness at the probable loss of the mississippi, which was the sorest point with the members from kentucky; and, having injected the poison, passed on to let it do its work against the time when he would strike with all his force. then he appealed to state pride. "when i call this the most mighty state in the union, do i not speak the truth? does not virginia surpass every state?" of course! there was no danger, then, that virginia would be left out of the union, as the constitutionalists had hinted might happen if virginia rejected the constitution; the other states would be glad to have her on her own terms. henry went over a variety of subjects and then returned to his favorite idea of the national government as something foreign. picking up a careless word of randolph, who had spoken of the people as a "herd," henry said that perhaps the words "we, the people," were used to recommend it to the masses, "to those who are likened to a _herd_; and by the operation of this blessed system are to be transformed from respectable, independent citizens, to abject, dependent subjects or slaves."[ ] finally, when he felt that he had his hearers once more under his spell, henry, exclaiming that a bill of rights was vital, asked for adjournment, which was taken, the great orator still holding the floor. footnotes: [ ] though "practical," these methods were honorable, as far as the improper use of money was concerned. [ ] king to langdon, june , ; king, i, . [ ] hamilton to madison, may , ; _works_: lodge, ix, . see also _ib._, . [ ] knox to king, june , ; king, i, . [ ] hill to thatcher, jan. , ; _hist. mag._ ( d series), vi, . [ ] king to madison, may , ; king, i, . [ ] hamilton to madison, june , ; _works_: lodge, ix, . virginia had ratified the constitution two days before hamilton wrote this letter, but the news did not reach new york until long afterward. [ ] hamilton to madison, june , ; _works_: lodge, ix, - . [ ] grigsby, i, . about three eighths of virginia's population were slaves valued at many millions of dollars. [ ] grigsby, i, footnote to ; also ; and see examples given by judge scott, in scott, - . [ ] grigsby, i, footnote to ; and see , , . [ ] henry, ii, ; and rowland, ii, _et seq._ [ ] rives, ii, . [ ] randolph to the speaker of the house of delegates, oct. , ; elliott, i, - ; also ford: _p. on c._, - . [ ] randolph to page and others, dec. , ; _american museum_, iii, _et seq._ [ ] _ib._ [ ] lee to randolph, oct. , ; elliott, i, . upon the publication of this correspondence a young richmond attorney, spencer roane, the son-in-law of patrick henry, in an article signed "plain dealer," published in the _virginia gazette_, attacked randolph for inconsistency. "good god! how can the first magistrate and father of a pure republican government ... before his proposed plan of amendment has been determined upon, declare that he will accept a constitution which is to beget a monarchy or an aristocracy?... can he foretell future events? how else can he at this time discover what the 'spirit of america' is?... how far will this principle carry him? why, ... if the dominion of shays, instead of that of the new constitution, should be generally accepted, and become 'the spirit of america,' his excellency would turn shayite." (plain dealer to randolph, feb. , ; ford: _essays on the constitution_, ; also _branch hist. papers_, .) roane's letter is important as the first expression of his hostility to the constitution. he was to become the determined enemy of marshall; and, as the ablest judge of the virginia court of appeals, the chief judicial foe of marshall's nationalism. (see vol. iii of this work.) [ ] "the importunities of some to me in public and private are designed to throw me unequivocally and without condition, into the opposition." (randolph to madison, feb. , ; conway, .) [ ] washington to randolph, jan. , ; _writings_: ford, xi, - . [ ] madison to randolph, jan. , ; _writings_: hunt, v, - ; and see same to same, jan. , (_ib._, - ); and march , (_ib._, - ). [ ] "if he [randolph] approves it at all, he will do it feebly." (washington to lafayette, april , ; _writings_: ford, xi, ; and see madison to jefferson, april , ; _writings_: hunt, v, .) [ ] randolph to madison, feb. , ; quoted in conway, . [ ] "randolph was still looked upon as an anti-federalist by the uninitiated." but his "position ... was evidently no secret to washington." (rowland, ii, . see also _ib._, , , .) [ ] _ib._ [ ] randolph to madison, feb. , ; conway, . [ ] scott, . [ ] washington to carter, dec. , ; _writings_: ford, xi, footnote to . [ ] smith to madison, june , ; rives, ii, footnote to p. . [ ] _ib._ "the baptist interest ... are highly incensed by henry's opinions and public speeches." (randolph to madison, feb. , ; conway, .) [ ] smith to madison, june , ; rives, ii, . [ ] washington to hamilton, nov. , ; _writings_: ford, xi, footnote to p. . [ ] washington to trumbull, feb. , ; _writings_: ford, . from the first washington attributed much of the opposition throughout the country to the fact that popular leaders believed that the new national government would lessen their importance in their respective states. "the governors elect or to be elected, the legislators, with a long tribe of others whose political importance will be lessened if not annihilated" were, said washington, against a strong central government. (washington to knox, feb. , ; sparks, ix, ; and see graydon, .) [ ] washington to lincoln, april , ; _ib._, xi, footnote to - . [ ] "letters of a federal farmer," no. ; ford: _p. on c._, . [ ] _ib._, no. , . [ ] washington to armstrong, april , ; _writings_: ford, xi, ; and to petit, aug. , ; _ib._, . [ ] madison to jefferson, april , ; _writings_: hunt, v, - . [ ] grigsby, i, - ; and footnote to . [ ] grigsby, i, - ; and elliott, iii, . [ ] rowland, ii, . [ ] henry, ii, . so angered were the anti-constitutionalists that they would not correct or revise robertson's reports of their speeches. (_ib._) [ ] elliott, iii, . [ ] _ib._, - ; also, journal of the convention, - . [ ] grigsby, i, - . in the descriptions of the dress, manners, and appearance of those who took part in the debate, grigsby's account has been followed. grigsby took infinite pains and gave many years to the gathering and verifying of data on these picturesque subjects; he was personally intimate with a large number of the immediate descendants of the members of the convention and with a few who were eye-witnesses; and his reconstruction of the scenes in the convention is believed to be entirely accurate. [ ] elliott, iii, . [ ] mason's clause-to-clause resolve was, "contrary to his expectations, concurred in by the other side." (madison to washington, june , ; _writings_: hunt, v, footnote to .) and see washington's gleeful report to the new york constitutionalists of mason's error: "this [mason's resolve] was as unexpected as acceptable to the federalists, and their ready acquiescence seems to have somewhat startled the opposite side for fear they had committed themselves." (washington to jay, june , ; _writings_: ford, xi, .) [ ] elliott, iii, . [ ] grigsby, i, . [ ] for a discussion of this tactical blunder of the opponents of the constitution, see grigsby, i, . [ ] elliott, iii, . [ ] grigsby, i, . [ ] elliott, iii, . [ ] _ib._ [ ] grigsby, i, . [ ] _ib._, . [ ] _ib._, , , , , , . [ ] elliott, iii, - . [ ] grigsby, i, . [ ] elliott, iii, - . [ ] grigsby, i, - . [ ] madison was the real designer of the virginia plan. (rives, ii, chap. xxvii.) [ ] this was the point washington had made to randolph. it is interesting that, throughout the debate, randolph, over and over again, used almost the exact language of washington's letter. [ ] elliott, iii, - . randolph's speech was apologetic for his change of heart. he was not "a candidate for popularity": he had "satisfied his conscience," etc. [ ] madison to washington, june , ; _writings_: hunt, v, . [ ] jefferson to short, sept. , ; quoting a private letter from virginia of july ; _works_: ford, v, . [ ] washington to jay, june , ; _writings_: ford, xi, . [ ] bland to lee, june , ; rowland, ii, - . evidently the opposition was slow to believe that randolph had irrevocably deserted them; for bland's letter was not written until randolph had made his fourth extended speech ten days later. [ ] scott, . [ ] washington to jay, june , ; _writings_: ford, xi, . [ ] from this delay randolph's enemies have charged that his letter to clinton was not posted in time. much as randolph had to answer for, this charge is unjust. letters between richmond and new york sometimes were two or three months on the way. (see _supra_, chap. vii.) [ ] clinton to randolph, may , ; conway, - . [ ] clinton to randolph, may , ; conway, - ; henry, ii, ; rowland, ii, - ; and see _infra_, chap. xii. [ ] randolph's change was ascribed to improper motives. mason was almost offensive in his insinuations during the debate and henry openly so, as will appear. randolph's last words to the convention were explanatory and defensive. washington made randolph his first attorney-general and he exercised great power for a time. "the government is now solely directed by randolph," complained jefferson. (conway, .) while washington certainly did not appoint randolph as a reward for his conduct in the struggle over the constitution, it is a reasonable inference that he would not have been made a member of the cabinet if he had not abandoned his opposition, supported the constitution, and suppressed clinton's letter. virginia had the head of the cabinet in jefferson as secretary of state; washington himself was from virginia; and since there were numerous men from other states as well as or better equipped than randolph for the attorney-generalship, his selection for that place is, at least, noteworthy. it gave virginia the presidency and two members of a cabinet which numbered only four in all. when the attorney-generalship was tendered to randolph, he wrote to madison bitterly resenting "the load of calumny which would be poured upon" him if he should accept. "for," writes randolph, "it has been insinuated ... that my espousal of the constitution had alienated even its friends from me, who would not elect me to the house of representatives. the insinuation has been carried so far as to apply it to the disposal of offices under the government." (randolph to madison, july , ; conway, - .) [ ] rowland, ii, . [ ] elliott, iii, - . [ ] elliott, iii, - . [ ] grigsby, i, . [ ] those who supported the constitution were called "federalists" and its opponents "anti-federalists"; but, for sake of clearness, the terms "constitutionalists" and "anti-constitutionalists" are employed in these chapters. [ ] madison to washington, june , ; _writings_: hunt, v, footnote to - . [ ] grigsby, i, footnote to . [ ] grigsby, i, - . scenes of a similar character occurred several times in both senate and house between and , when one of our elder statesmen, who plainly was nearing the end of life, rose to speak. more than one notable contest, during that decade, was decided by the sympathetic votes of aged friends who answered the call of long years of affection. [ ] elliott, iii, - . [ ] see _infra_, chap, iii; also grigsby, i, - . [ ] _ib._, - . [ ] elliott, iii, - . [ ] elliott, iii, . the word "revolution" is printed "resolution" in elliott's _debates_. this is a good example of the inaccuracy of elliott's reprint of robertson's stenographic report. in robertson's _debates_, published in , the word is correctly printed "revolution." i have cited elliott only because it is accessible. even robertson's report is admittedly meager and unsatisfactory; all the more, therefore, is it to be regretted that elliott's reprint should be so inaccurate. [ ] at this point the reporter, unable to follow henry's speech, notes that he "strongly and pathetically expatiated on the probability of the president's enslaving america and the horrid consequences that must result." (elliott, iii, .) [ ] henry had not heard of the constitutionalists' bargain with hancock in massachusetts. [ ] elliott, iii, - . [ ] general posey, a revolutionary officer, who was for the constitution, afterwards said that henry's speech made him believe that the constitution would destroy liberty. another intelligent man who heard henry's speech said that when the great orator pictured the president at the head of the army, he felt his own wrists for the shackles, and that his place in the gallery suddenly seemed like a dungeon. (grigsby, i, - .) [ ] grigsby, i, . [ ] elliott, iii, - . in the debate, much was made of this famous case. yet philips was not executed under the provisions of the law randolph referred to. when arrested, he was indicted, tried, and convicted in the general court; and he was hanged by sentence of the court, december , . although, at that time, randolph was attorney-general of virginia and actually prosecuted the case; and although henry was governor and ordered the arrest of philips (henry, i, - ), yet, ten years later, both had forgotten the facts, and randolph charged, and henry in reply admitted, that philips had been executed under the bill of attainder without trial. (jefferson to wirt, oct. , ; _works_: ford, xi, .) the bill of attainder was drawn by jefferson. it appears in _ib._, ii, - . [ ] again, randolph's speech was marred by the note of personal explanation that pervaded it. "the rectitude of my intentions"; "ambition and popularity are no objects with me"; "i expect, in the course of a year, to retire to that private station which i most sincerely and cordially prefer to all others,"--such expressions gave to his otherwise aggressive and very able appeal a defensive tone. [ ] grigsby, i, . madison's apparel at this convention was as ornate as his opinions were, in his opponents' eyes, "aristocratic." [ ] elliott, iii, . see entire speech, _ib._, - . [ ] bushrod washington to washington, june , ; _writings_: sparks, ix, . but madison gave henry an opening through which that veteran orator drove like a troop of horse, as far as practical and momentary effect was concerned. madison described the new government as partly national and partly federal. (elliott, iii, ; and see henry's use of this, _ib._, ; also _infra_.) [ ] elliott, iii, - . [ ] elliott, iii, - . [ ] elliott, iii, . [ ] _ib._, - . [ ] madison was equaled only by hamilton in sheer intellectuality, but he was inferior to that colossus in courage and constructive genius. [ ] _ib._, - . [ ] madison to hamilton, june , ; hamilton mss., lib. cong. madison's four famous speeches in this convention, are properly parts of one comprehensive exposition. (see madison's own notes for the third of these speeches in _writings_: hunt, v, .) mr. hunt also prints accurately robertson's report of the speeches themselves in that volume. they cannot be summarized here, but should be read in full. [ ] see _supra_, footnote to . [ ] elliott, iii, - . chapter xi the supreme debate there will undoubtedly be a greater weight of abilities against the adoption in this convention than in any other state. (washington.) what are the objects of the national government? to protect the united states and to promote the general welfare. (marshall, in his first debate.) now appeared the practical political managers from other states. from saturday afternoon until monday morning there was great activity in both camps. the politicians of each side met in secret conference to plan the operations of the coming week and to devise ways and means of getting votes. for the constitutionalists, gouverneur morris was on the ground from new york;[ ] robert morris and probably james wilson, both from philadelphia, had been in virginia at the time of the elections and the former remained for the convention.[ ] during the second week the philadelphia financier writes gates from richmond, lamenting "the depredations on my purse," but "inclined to think the constitution will be adopted by virginia."[ ] for the opposition, oswald, publisher of the "independent gazetteer," came on from philadelphia and arrived in richmond at the close of the first week's debate. he at once went into secret conference with henry, mason, and the other anti-constitutionalist leaders. madison reports to hamilton that "oswald of phil^a came here on saturday; and he has closet interviews with the leaders of the opposition."[ ] by the same mail grayson advises the general anti-constitutionalist headquarters in new york that he is "sorry ... that our affairs in the convention are suspended by a hair." randolph's conduct "has not injured us," writes grayson, thus proving how poorly the anti-constitutionalists estimated the real situation. but they were practical enough to know that "there are seven or eight dubious characters whose opinions are not known" and upon whose decisions the fate of the constitution "will ultimately depend." grayson cautions lamb not to let this get into the newspapers.[ ] just what was devised and decided by the leaders of both sides in these behind-the-doors meetings and what methods were used outside the convention hall to influence votes, there is no means of learning exactly; though "the opposition" committee seems to have been occupied chiefly in drawing amendments.[ ] but the frequent references, particularly of the constitutionalist speakers on the floor, to improper conduct of their adversaries "out of doors" show that both sides were using every means known to the politics of the day to secure support. in the debate itself henry certainly was making headway.[ ] on monday, henry and mason made a dramatic entrance into the convention hall. walking arm in arm from their quarters in "the swan,"[ ] they stopped on the steps at the doors of the new academy and conferred earnestly for some minutes; so great was the throng that the two anti-constitutionalist chieftains made their way to their seats with great difficulty.[ ] when henry rose to go on with his speech, the plan decided on during sunday quickly was revealed. the great prize for which both sides now were fighting was the votes from kentucky.[ ] henry held up before them the near forfeiture to the spanish of our right to navigate the mississippi.[ ] this, he said, was the work of seven northern states; but under the confederation they had been thwarted in their fell purpose by six southern states; and the mississippi still remained our own. but if the constitution was adopted, what would happen? the senate would be controlled by those same northern states that had nearly succeeded in surrendering the great waterway and the west and south would surely be deprived of that invaluable commercial outlet. he asked the members of congress who were in the convention to tell the facts about the mississippi business. jefferson, he avowed, had counseled virginia to "reject this government."[ ] henry answered the constitutionalists' prophecy of foreign war, ridiculed danger from the indians, proved that the constitution would not pay virginia's debts; and, in characteristic fashion, ranged at large over the field. the constitution, he asserted, would "operate like an ambuscade ... destroy the state governments ... swallow the liberties of the people without" warning. "how are our debts to be discharged unless taxes are increased?" asked he; and demonstrated that under the constitution taxes surely would be made heavier. time and again he warned the convention against the loss of liberty: "when the deprivation of our liberty was attempted, what did ... the genius of virginia tell us? '_sell all and purchase liberty!_'... republican maxims,... and the genius of virginia landed you safe on the shore of freedom." once more he praised the british form of government--an oversight which a hawk-eyed young member of the convention, john marshall, was soon to use against him. henry painted in darkest colors the secrecy of the federal convention. "_look at us--hear our transactions!_--if this had been the language of the federal convention," there would have been no constitution, he asserted, and with entire accuracy. yet, the constitution itself authorized congress to keep its proceedings as secret as those of the constitution's makers had been kept: "the transactions of congress," said henry, "may be concealed a century from the public."[ ] seizing madison's description of the new government as partly national and partly federal, henry brought to bear all his power of satire. he was "amused" at madison's "treatise of political anatomy.... in the brain it is national; the stamina are federal; some limbs are federal, others national." absurd! the truth was, said henry, that the constitution provided for "a great consolidation of government." why not abolish virginia's legislature and be done with it? this national government would do what it liked with virginia. as to the plan of ratifying first and amending afterwards, henry declared himself "at a loss what to say. you agree to bind yourselves hand and foot--for the sake of what? of being unbound. you go into a dungeon--for what? to get out.... my anxiety and fears are great lest america by the adoption of this system [the constitution], should be cast into a fathomless bottom." tradition has it that during this speech henry, having frozen his hearers' blood by a terrific description of lost "liberty," with one of his sudden turns set both convention and spectators into roars of laughter by remarking with a grimace, and as an aside, "why, _they'll free your niggers_."[ ] and then, with one of those lightning changes of genius, which henry alone could make, he solemnly exclaimed, "i look on that paper [the constitution] as the most fatal plan that could possibly be conceived to enslave a free people."[ ] lee, in reply, spoke of the lobbying going on outside the convention. "much is said by gentlemen out of doors," exclaimed lee; "they ought to urge all their objections here." he taunted henry, who had praised the militia, with not having been himself a soldier. "i saw what the honorable gentleman did not see," cried lee, "our men fight with the troops of that king whom he so much admires."[ ] when the hot-blooded young soldier had finished his aggressive speech, randolph could no longer restrain himself. henry's bold challenge of randolph's change of front had cut that proud and sensitive nature to the heart. "i disdain," thundered he, "his aspersions and his insinuations." they were "warranted by no principle of parliamentary decency, nor compatible with the least shadow of friendship; and if our friendship must fall, _let it fall, like lucifer, never to rise again_!" it was not to answer henry that he spoke, snarled randolph, "but to satisfy this respectable audience." randolph then explained his conduct, reading part of the letter[ ] that had caused all the trouble, and dramatically throwing the letter on the clerk's table, cried "that it might lie there for _the inspection of the curious and malicious_."[ ] randolph spoke for the remainder of the day and consumed most of the next forenoon.[ ] no soldier had yet spoken for the anti-constitutionalists; and it perhaps was lee's fling at henry that now called a revolutionary officer to his feet against the constitution. a tall, stiff, raw-boned young man of thirty years arose. poorly educated, slow in his mental processes,[ ] james monroe made a long, dull, and cloudy speech, finally declaring of the constitution, "i think it a dangerous government"; and asking "why ... this haste--this wild precipitation?" long as monroe's speech was, he reminded the convention that he had "not yet said all that i wish upon the subject" and that he would return to the charge later on.[ ] monroe did not help or hurt either side except, perhaps, by showing the members that all the revolutionary veterans were not for the constitution. neither members nor spectators paid much attention to him, though this was no reflection on monroe, for the convention did not listen with patience to many speakers except henry. when henry spoke, every member was in his seat and the galleries were packed. but only the most picturesque of the other speakers could hold the audience for longer than half an hour; generally members walked about and the spectators were absent except when henry took the floor.[ ] as usual, the constitutionalists were ready with their counter-stroke. wythe in the chair recognized a tall, ungainly young man of thirty-two. he was badly dressed in a loose, summer costume, and his blazing black eyes and unkempt raven hair made him look more like a poet or an artist than a lawyer or statesman.[ ] he had bought a new coat the day the convention met; but it was a most inexpensive addition to his raiment, for it cost but one pound, virginia currency, then greatly depreciated.[ ] he probably was the best liked of all the members of the convention. sociable to extreme good-fellowship, "his habits," says grigsby, "were convivial almost to excess";[ ] and it is more than likely that, considering the times, these habits in his intimate social intercourse with his fellow members helped to get more votes than his arguments on the floor, of which he now was to make the first.[ ] his four years' record as a soldier was as bright and clean as that of any man from any state who had fought under washington. so when john marshall began to speak, he was listened to with the ears of affection; and any point the opposition had made by the fact that monroe the soldier had spoken against the constitution was turned by marshall's appearance even before he had uttered a word. the young lawyer was also accounted an "orator" at this time,[ ] a fact which added to the interest of his fellow members in his speech. the question, marshall said, was "whether democracy or despotism be most eligible."[ ] he was sure that the framers and supporters of the constitution "intend the establishment and security of the former"; they are "firm friends of the liberty and the rights of mankind." that was why they were for the constitution. "we, sir, idolize democracy." the constitution was, said he, the "best means of protecting liberty." the opposition had praised monarchy, but, deftly avowed marshall, "we prefer this system to any monarchy"; for it provides for "a well regulated democracy." he agreed with henry that maxims should be observed; they were especially "essential to a democracy." but, "what are the ... maxims of democracy?... a strict observance of justice and public faith, and a steady adherence to virtue. these, sir, are the principles of a good government,"[ ] declared the young richmond constitutionalist. "no mischief, no misfortune, ought to deter us from a strict observance of justice and public faith," cried marshall. "would to heaven," he exclaimed, "that these principles had been observed under the present government [the confederation]." he was thinking now of his experience in the legislature and appealing to the honesty of the convention. if the principles of justice and good faith had been observed, continued he, "the friends of liberty would not be so willing now to part with it [the confederation]." could virginians themselves boast that their own government was based on justice? "can we pretend to the enjoyment of political freedom or security, when we are told that a man has been, by an act of assembly, struck out of existence without a trial by jury, without examination, without being confronted with his accusers and witnesses, without the benefits of the law of the land?"[ ] skillfully he turned against henry the latter's excuse for the execution of philips, and dramatically asked: "where is our safety, when we are told that this act was justifiable because the person was not a socrates?... shall it be a maxim that a man shall be deprived of his life without the benefit of the law?" as to the navigation of the mississippi, he asked: "how shall we retain it? by retaining that weak government which has hitherto kept it from us?" no, exclaimed marshall, but by a government with "the power of retaining it." such a government, he pointed out, was that proposed in the constitution. here again the constitutionalist managers displayed their skill. marshall was the best man they could have chosen to appeal to the kentucky members on the mississippi question. his father, mother, and his family were now living in kentucky, and his relative, humphrey marshall, was a member of the convention from that district.[ ] marshall himself was the legislative agent of the district of kentucky in richmond. the development of the west became a vital purpose with john marshall, strengthening with the years; and this was a real force in the growth of his views on nationality.[ ] henry's own argument, that amendments could not be had after adoption, proved, said marshall, that they could not be had before. in all the states, particularly in virginia, there were, he charged, "many who are decided enemies of the union." these were inspired by "local interests," their object being "disunion." they would not propose amendments that were similar or that all could agree upon. when the federal convention met, said marshall, "we had no idea then of any particular system. the formation of the most perfect plan was our object and wish"; and, "it was imagined" that the states would with pleasure accept that convention's work. but "consider the violence of opinions, the prejudices and animosities which have been since imbibed"; and how greatly they "operate against mutual concessions." marshall reiterated that what the constitutionalists were fighting for was "a well-regulated democracy." could the people themselves make treaties, enact laws, or administer the government? of course not. they must do such things through agents. and, inquired he, how could these agents act for the people if they did not have power to do so? that the people's agents might abuse power was no argument against giving it, for "the power of doing good is inseparable from that of doing some evil." if power were not given because it might be misused, "you can have no government." thus marshall stated that principle which he was to magnify from the supreme bench years later. "happy that country," exclaimed the young orator, "which can avail itself of the misfortunes of others ... without fatal experience!" marshall cited holland. the woes of that country were caused, said he, by "the want of proper powers in the government, the consequent deranged and relaxed administration, the violence of contending parties"--in short, by such a government, or rather absence of government, as america then had under the confederation. if holland had had such a government as the constitution proposed, she would not be in her present sorry plight. marshall was amused at henry's "high-colored eulogium on such a government." there was no analogy, argued he, between "the british government and the colonies, and the relation between congress and the states. we _were not_ represented in parliament. here [under the constitution] we are represented." so the arguments against british taxation "do not hold against the exercise of taxation by congress." the power of taxation by congress to which henry objected was "essentially necessary; for without it there will be no efficiency in the government." that requisitions on the states could not be depended on had been demonstrated by experience, he declared; the power of direct taxation was, therefore, necessary to the very existence of the national government. "the possibility of its being abused is urged as an argument against its expediency"; but, said marshall, such arguments would prevent all government and result in anarchy. "all delegated powers are liable to be abused." the question was, whether the taxing power was "necessary to perform the objects of the constitution?... what are the objects of national government? to protect the united states, and to promote the general welfare. protection, in time of war, is one of its principal objects. until mankind shall cease to have ambition and avarice, wars will arise." experience had shown, said marshall, that one state could not protect the people or promote general welfare. "by the national government only" could these things be done; "shall we refuse to give it power to do them?" he scorned the assertion "that we need not be afraid of war. look at history," he exclaimed, "look at the great volume of human nature. they will foretell you that a defenseless country cannot be secure. the nature of men forbids us to conclude that we are in no danger from war. the passions of men stimulate them to avail themselves of the weakness of others. the powers of europe are jealous of us. it is our interest to watch their conduct and guard against them. they must be pleased with our disunion. if we invite them by our weakness to attack us, will they not do it? if we add debility to our present situation, a partition of america may take place." the power of national taxation, therefore, was necessary, marshall asserted. "there must be men and money to protect us. how are armies to be raised? must we not have money for that purpose?" if so, "it is, then, necessary to give the government that power in time of peace, which the necessity of war will render indispensable, or else we shall be attacked unprepared." history, human nature, and "our own particular experience, will confirm this truth." if danger should come upon us without power to meet it, we might resort to a dictatorship; we once were on the point of doing that very thing, said he--and even henry and mason did not question this appeal of marshall to the common knowledge of all members of the convention. "were those who are now friends to this constitution less active in the defense of liberty, on that trying occasion, than those who oppose it?" scathingly asked marshall. "we may now ... frame a plan that will enable us to repel attacks, and render a recurrence to dangerous expedients unnecessary. if we be prepared to defend ourselves, there will be little inducement to attack us. but if we defer giving the necessary power to the general government till the moment of danger arrives, we shall give it then, and with an _unsparing hand_." it was not true, asserted marshall, that the confederation carried us through the revolution; "had not the enthusiasm of liberty inspired us with unanimity, that system would never have carried us through it." the war would have been won much sooner "had that government been possessed of due energy." the weakness of the confederation and the conduct of the states prolonged the war. only "the extreme readiness of the people to make their utmost exertions to ward off solely the pressing danger, supplied the place of requisitions." but when this danger was over, the requisition plan was no longer effective. "a bare sense of duty," said he, "is too feeble to induce men to comply with obligations." it was plain, then, marshall pointed out, that "the government must have the sinews of war some other way." that way was by direct taxation which would supply "the necessities of government ... in a peaceable manner"; whereas "requisitions cannot be rendered efficient without a civil war." what good would it do for congress merely to remonstrate with the states, as henry had proposed, if we were at war with foreign enemies? there was no danger that congress, under the constitution, would not lay taxes justly, asserted marshall; for if members of congress laid unjust taxes, the people would not reëlect them. under the constitution, they were chosen by the same voters who elected members of the state legislature. these voters, said he, "have nothing to direct them in the choice but their own good." men thus elected would not abuse their power because that would "militate against their own interest.... to procure their reelection, it will be necessary for them to confer with the people at large, and convince them that the taxes laid are for their own good." henry had asked whether the adoption of the constitution "would pay our debts." "it will compel the states to pay their quotas," answered marshall. "without this, virginia will be unable to pay. unless all the states pay, she cannot.... economy and industry are essential to our happiness"; but the confederation "takes away the incitements to industry, by rendering property insecure and unprotected." the constitution, on the contrary, "will promote and encourage industry." the statement of the anti-constitutionalists that the extent of the country was too great for a strong national government was untrue, argued marshall. also, said he, this objection was from writers who criticized those governments "where representation did not exist." but, under the constitution, representation would exist. answering henry's objection, that there were no effective checks in the constitution, marshall inquired, "what has become of his enthusiastic eulogium on the american spirit?" there, declared marshall, was the real check and control. "in this country, there is no exclusive personal stock of interest. the interest of the community is blended and inseparably connected with that of the individual. when he promotes his own, he promotes that of the community. when we consult the common good, we consult our own." in such considerations were found the greatest security from an improper exercise of power. "is not liberty secure with us, where the people hold all powers in their own hands, and delegate them cautiously, for short periods, to their servants, who are accountable for the smallest mal-administration?... we are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim that those who give may take away. it is the people that give power, and can take it back. what shall restrain them? they are the masters who give it, and of whom their servants hold it." returning to the subject of amendments, "what," asked marshall, "shall restrain you from amending it, if, in trying it, amendments shall be found necessary.... when experience shall show us any inconvenience, we can then correct it.... if it be necessary to change government, let us change that government which has been found to be defective." the constitution as it stood filled the great objects which everybody desired--"union, safety against foreign enemies, and protection against faction [party]--against what has been the destruction of all republics." he turned henry's unhappy praise of the british constitution into a weapon of deadly attack upon the opposition. the proposed constitution, said marshall, was far better than the british. "i ask you if your house of representatives would be better than it is, if a hundredth part of the people were to elect a majority of them? if your senators were for life, would they be more agreeable to you? if your president were not accountable to you for his conduct,--if it were a constitutional maxim, that he could do no wrong,--would you be safer than you are now? if you can answer, yes, to these questions, then adopt the british constitution. if not, then, good as that government may be, this [constitution] is better." referring to "the confederacies of ancient and modern times" he said that "they warn us to shun their calamities, and place in our government those necessary powers, the want of which destroyed them." the ocean does not protect us from war; "sir," exclaimed marshall, "the sea makes them neighbors to us.... what dangers may we not apprehend to our commerce! does not our naval weakness invite an attack on our commerce?" henry had said "that our present exigencies are greater than they will ever be again." but, asked he, "who can penetrate into futurity?" henry's objection that the national government, under the constitution, would "call forth the virtue and talents of america," to the disadvantage of the states, was, marshall said, the best guarantee that the national government would be wisely conducted. "will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? will the most virtuous act the most wickedly?" on the contrary, "the virtue and talents of the members of the general government will tend to the security instead of the destruction of our liberty.... the power of direct taxation is essential to the existence of the general government"; if not, the constitution was unnecessary; "for it imports not what system we have, unless it have the power of protecting us in time of war."[ ] this address to the virginia convention is of historic interest as john marshall's first recorded utterance on the constitution of which he was to become the greatest interpreter. also, it is the first report of marshall's debating. the speech is not, solely on its merits, remarkable. it does not equal the logic of madison, the eloquence of randolph or lee, or the brilliancy of corbin. it lacks that close sequence of reasoning which was marshall's peculiar excellence. in provoking fashion he breaks from one subject when it has been only partly discussed and later returns to it. it is rhetorical also and gives free rein to what was then styled "marshall's eloquence." the warp and woof of marshall's address was woven from his military experience; he forged iron arguments from the materials of his own soldier life. two thirds of his remarks were about the necessity of providing against war. but the speech is notable as showing, in their infancy, those views of government which, in the shaggy strength of their maturity, were to be so influential on american destiny.[ ] it also measures the growth of those ideas of government which the camp, the march, and the battlefield had planted in his mind and heart. the practical and immediate effect of the speech, which was what the constitutionalists, and perhaps marshall himself, cared most about, was to strengthen the soldier vote for the constitution and to cause the kentucky members to suspend judgment on the mississippi question. [illustration: _john marshall_ _from a painting by martin in the robe room of the u. s. supreme court._] for the anti-constitutionalists there now arose a big-statured old man "elegantly arrayed in a rich suit of blue and buff, a long queue tied with a black ribbon dangling from his full locks of snow, and his long black boots encroaching on his knees."[ ] his ancestors had been virginians even before the infant colony had a house of burgesses. when benjamin harrison now spoke he represented the aristocracy of the old dominion, and he launched all his influence against the constitution. for some reason he was laboring "under high excitement," and was almost inaudible. he lauded the character of the virginia legislature, of which he had been a member. the constitution, insisted harrison, "would operate an infringement of the rights and liberties of the people."[ ] george nicholas answered at length and with characteristic ability and learning.[ ] but his speech was quite unnecessary, for what harrison had said amounted to nothing. on the morning of the ninth day of the convention madison continued his masterful argument, two sections of which he already had delivered.[ ] he went out of his way to praise marshall, who, said madison, had "entered into the subject with a great deal of ability."[ ] mason, replying on taxation, said that under the constitution there were "some land holders in this state who will have to pay twenty times as much [taxes] as will be paid for all the land on which philadelphia stands." a national excise tax, he declared, "will carry the exciseman to every farmer's house, who distills a little brandy where he may search and ransack as he pleases." and what men, asked mason, would be in congress from virginia? most of them would be "chosen ... from the higher order of the people--from the great, the wealthy--the _well-born_--the _well-born_, mr. chairman, that aristocratic idol--that flattering idea--that _exotic_ plant which has been lately imported from the ports of great britain, and planted in the luxurious soil of this country." it is significant to find the "well-born," wealthy, learned, and cultivated mason taking this tone. it shows that the common people's dislike of a national government was so intense that even george mason pandered to it. it was the fears, prejudices, and passions of the multitude upon which the enemies of the constitution chiefly depended; and when mason stooped to appeal to them, the sense of class distinction must have been extreme. his statement also reveals the economic line of cleavage between the friends and foes of the constitution. it was in this speech that mason made his scathing "cat and tory" comparison. he knew those who were for the constitution, "their connections, their conduct, their political principles, and a number of other circumstances. there are a great many wise and good men among them"; but when he looked around and observed "who are the warmest and most zealous friends to this new government," it made him "think of the story of the cat transformed to a fine lady: forgetting her transformation and happening to see a rat, she could not restrain herself, but sprang upon it out of the chair."[ ] mason denounced randolph for the latter's apostasy. "i know," said mason, "that he once saw as great danger in it as i do. what has happened since this to alter his opinion?" of course, the confederation was defective and reform needed; but the constitution was no reform. without previous amendments, "we never can accede to it. our duty to god and to our posterity forbids it,"[ ] declared the venerable author of virginia's bill of rights and the constitution of the state. henry lee answered with fire and spirit, first rebuking "the irregular and disorderly manner" in which the opposition had carried on the debate. as to the cat story, mason ought to know "that ridicule is not the test of truth. does he imagine that he who can raise the loudest laugh is the soundest reasoner?" and mason's "insinuations" about the "well-born" being elected to congress were "unwarrantable." he hoped that "we shall hear no more of such groundless aspersions." lee's speech is valuable only as showing the rising spirit of anger which was beginning to appear even in virginia's well-conducted, parliamentary, and courteous debate.[ ] the anti-constitutionalists were now bringing all their guns into action. the second revolutionary soldier to speak for the opposition now arose. william grayson was almost as attractive a military figure as henry lee himself. he had been educated at oxford, had studied law in the inner temple; and his style of speech was the polished result of practice in the english political clubs, in congress, and at the bar.[ ] there were few men in america with more richly stored or better trained minds. he was a precise latinist and a caustic wit. when, during the debate, some of the constitutionalist speakers used latin phrases with a wrong pronunciation, grayson, _sotto voce_, would correct them. once he remarked, loud enough to be heard by the other members whom he set roaring with laughter, that he was not surprised that men who were about to vote away the liberties of a living people should take such liberties with a dead language. grayson now brought into action the heaviest battery the anti-constitutionalists had in reserve. he did not blame virginia's delegates to the federal convention, said grayson suavely. it was unfortunate "that they did not do more for the general good of america"; but "i do not criminate or suspect the principles on which they acted." of course, the confederation had defects; but these were "inseparable from the nature of such [republican] governments." the constitutionalists had conjured up "phantoms and ideal dangers to lead us into measures which will ... be the ruin of our country." he argued that we were in no danger from our default in paying foreign loans; for most european nations were friendly. "loans from nations are not like loans from private men. nations lend money ... to one another from views of national interest. france was willing to pluck the fairest feather out of the british crown. this was her hope in aiding us"--a truth evident to every man in the convention. such loans were habitually delayed,--for instance, "the money which the dutch borrowed of henry iv is not yet paid"; these same dutch "passed queen elizabeth's loan at a very considerable discount," and they "made their own terms with that contemptible monarch," james i. the people had no idea, asserted grayson, that the federal convention would do more than to give the national government power to levy a five per cent tariff, but since then "horrors have been greatly magnified." he ridiculed randolph's prophecy of war and calamity. according to randolph, "we shall be ruined and disunited forever, unless we adopt this constitution. pennsylvania and maryland are to fall upon us from the north, like the goths and vandals of old; the algerines, whose flat-sided vessels never came farther than madeira, are to fill the chesapeake with mighty fleets, and to attack us on our front; the indians are to invade us with numerous armies on our rear, in order to convert our cleared lands into hunting-grounds; and the carolinians, from the south (mounted on alligators, i presume), are to come and destroy our cornfields, and eat up our little children! these, sir, are the mighty dangers which await us if we reject [the constitution]--dangers which are merely imaginary, and ludicrous in the extreme!" at bottom, thought grayson, the controversy was between two opinions--"the one that mankind can only be governed by force; the other that they are capable" of governing themselves. under the second theory, which grayson favored, all that was necessary was to "give congress the regulation of commerce" and to "infuse new strength and spirit into the state governments." this, he remarked, was the proper course to pursue and to maintain "till the american character be marked with some certain features. we are yet too young to know what we are fit for." if this was not to be done and we must have a government by force, then grayson "would have a president for life, choosing his successor at the same time; a senate for life, with the powers of the house of lords; and a triennial house of representatives, with the powers of the house of commons in england."[ ] consider the judiciary. suppose a man seized at the same time under processes from federal and state courts: "would they divide the man in two, as solomon directed the child to be divided who was claimed by two women?" evidently grayson was making a strong impression as the day grew to a close, for monroe, seconded by henry, moved that the convention adjourn that grayson might go on next day; and madison, plainly nervous, "insisted on going through the business regularly, according to the resolution of the house." grayson consumed most of the next forenoon, displaying great learning, but sometimes drawing the most grotesque conclusions. for example, he said that congress might grant such privileges that "the whole commerce of the united states may be exclusively carried on by merchants residing within the seat of government [now the district of columbia] and those places of arms which may be purchased of the state legislature." the constitution did not give equality of representation; for "the members of delaware will assist in laying a tax on our slaves, of which they will pay no part whatever." in general, grayson's conclusion was that "we have asked for bread and they have given us a stone."[ ] pendleton answered. henry's treatment of randolph's unhappy reference to the people as a "herd" seems to have had some effect; for pendleton regretted its use and tried to explain it away. henry and he differed "at the threshold" on government. "i think government necessary to protect liberty.... licentiousness" was "the natural offspring of liberty"; and "therefore, all free governments should endeavor to suppress it, or else it will ultimately overthrow that liberty of which it is the result." henry "professes himself an advocate for the middling and lower classes of men, i profess to be a friend to the equal liberty of all men, from the palace to the cottage." the appeal to class hatred, said pendleton, had been made by the opposition exclusively; the constitutionalists knew no distinction among men except that of good and bad men. why did the opposition make "the distinction of _well-born_ from others?... whether a man be great or small, he is equally dear to me." he wished "for a regular government in order to secure and protect ... honest citizens ... the industrious farmer and planter." the purpose of the proposed national government was to cherish and protect industry and property. pendleton spoke at great length, but frequently his voice was so feeble that he could not be understood or reported.[ ] madison followed with the fourth section of what might properly be called his treatise on government. henry replied, striking again the master chord of the people's fears--that of a national government as something alien. "the tyranny of philadelphia may be like the tyranny of george iii." that the constitution must be amended "re-echoed from every part of the continent"; but that could not be done "if we ratify unconditionally." henry remade his old points with his consummate art. he mentioned a new subject, however, of such high practical importance that it is astonishing that he had not advanced it at the beginning and driven it home persistently. "there are," he said, "thousands and thousands of contracts, whereof equity forbids an exact literal performance.... pass that government [the constitution] and you will be bound hand and foot.... an immense quantity of depreciated continental paper money ... is in the hands of individuals to this day. the holders of this money may call for the nominal value, if this government be adopted. this state may be compelled to pay her proportion of that currency, pound for pound. pass this government and you will be carried to the federal court ... and you will be compelled to pay, shilling for shilling." returning to this point later on, henry said: "some of the states owe a great deal on account of paper money; others very little. some of the northern states have collected and barrelled up paper money. virginia has sent thither her cash long ago. there is little or none of the continental paper money retained in this state. is it not their business to appreciate this money? yes, and it will be your business to prevent it. but there will be a majority [in congress] against you and you will be obliged to pay your share of this money, in its nominal value."[ ] referring to pendleton's assertion that the state court had declared void legislative acts which violated the state constitution, henry exclaimed: "yes, sir, our judges opposed the acts of the legislature. we have this landmark to guide us. they had the fortitude to declare that they were the judiciary and would oppose unconstitutional acts. are you sure your federal judiciary will act thus? is that judiciary as well constructed, and as independent of the other branches, as our state judiciary? where are your landmarks in this government? i will be bold to say you cannot find any in it. i take it as the highest encomium on this country [virginia] that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary."[ ] as usual, henry ended with a fearsome picture and prophecy, this time of the danger to and destruction of southern interests at the hands of the northern majority. this, said he, "is a picture so horrid, so wretched, so dreadful, that i need no longer dwell upon it"; and he "dreaded the most iniquitous speculation and stock-jobbing, from the operation of such a system" as the constitution provided.[ ] madison replied--the first spontaneous part he had taken in the debate.[ ] the next morning the opposition centered their fire on the mississippi question. henry again demanded that the members of the convention who had been in congress should tell what had been done.[ ] the members of congress--lee, monroe, grayson, and madison--then gave their versions of the jay-gardoqui transaction.[ ] the constitutionalists rightly felt that "the whole scene has been conjured by henry to affect the ruin of the new constitution,"[ ] and that seasoned gladiator now confirmed their fears. he astutely threw the blame on madison and answered the charge of the constitutionalists that "we [the opposition] are scuffling for kentucky votes and attending to local circumstances." with all of his address and power, henry bore down upon the mississippi question. thus he appealed for kentucky votes: "shall we appear to care less for their interests than for that of distant people [the spaniards]?" at henry's word a vision rose before all eyes of the great american valley sustaining "a mighty population," farms, villages, towns, cities, colleges, churches, happiness, prosperity; and "the mississippi covered with ships laden with foreign and domestic wealth"--a vision of a splendid west "the strength, the pride, and the flower of the confederacy." and then quickly succeeded on the screen the picture of the deserted settlers, the west a wilderness, the father of waters flowing idly to the sea, unused by commerce, unadorned by the argosies of trade. such, said he, would be the mississippi under the constitution "controlled by those who had no interest in its welfare."[ ] at last the constitutionalists were stunned. for a while no one spoke. pendleton, "his right hand grasping his crutch, sat silent and amazed."[ ] nicholas, the dauntless, was first to recover himself, and repeated marshall's argument on the mississippi question. evidently the opposition had lobbied effectively with the kentucky members on that sore point; for, exclaimed nicholas, "we have been alarmed about the loss of the mississippi, in and _out_ of doors."[ ] the constitutionalists strove mightily to break the force of henry's _coup_ on the kentucky delegates. he had "seen so many attempts made," exclaimed randolph, "and so many wrong inducements offered to influence the delegation from kentucky," that he must speak his mind about it.[ ] corbin called the mississippi trick "reprehensible." and well might the constitutionalists tremble; for in spite of all they could do, ten out of fourteen of the kentucky delegates voted against ratifying the constitution. that night pendleton fell ill and john tyler, "one of the staunchest opponents of the new constitution," was elected vice-president.[ ] the mississippi question was dropped for the moment; the constitutionalists rallied and carried corbin's motion to debate the new government clause by clause in accordance with the original resolution. several sections of the first article were read and debated, henry, mason, and grayson for the opposition; madison bearing the burden of the debate for the constitutionalists. the rich man and the poor, the state government a thing of the "people" and the national government something apart from the "people," were woven throughout the anti-constitutionalists' assaults. "where," exclaimed henry, "are the purse and the sword of virginia? they must go to congress. what has become of your country? the virginian government is but a name.... we are to be consolidated."[ ] the second week's debate closed with the advantage on the side of the opposition. gouverneur morris, the new york constitutionalist, who, still on the ground, was watching the fight in richmond and undoubtedly advising the virginia constitutionalists, reported to hamilton in new york that "matters are not going so well in this state as the friends of america could wish." the anti-constitutionalists had been making headway, not only through henry's tremendous oratory, but also by other means; and the constitutionalists acknowledged that their own arguments in debate were having little or no effect. "if, indeed, the debates in convention were alone attended to," wrote gouverneur morris, "a contrary inference would be drawn for altho m^r. henry is most warm and powerful in declamation being perfectly master of 'action utterrance and power of speech to stir men's blood' yet the weight of argument is so strong on the side of truth as wholly to destroy even on weak minds the effects of his eloquence. but there are as you well know certain dark modes of operating on the minds of members which like contagious diseases are only known by their effects on the frame and unfortunately our moral like our phisical doctors are often mistaken in their judgment from diagnostics. be of good chear. my religion steps in where my understanding falters and i feel faith as i loose confidence. things will yet go right but when and how i dare not predicate. so much for this dull subject."[ ] "we have conjectured for some days," madison advised hamilton, "that the policy is to spin out the session in order to receive overtures from your [new york's] convention: or if that cannot be, to weary the members into a adjournment without taking any decision. it [is] presumed at the same time that they do not despair of carrying the point of previous amendments which is preferable game. the parties continue to be nearly balanced. if we have a majority at all, it does not exceed three or four. if we lose it kentucke will be the cause; they are generally if not unanimously against us."[ ] on the back of madison's letter, henry lee wrote one of his own to the new york constitutionalist chieftain. "we possess as yet," said lee, "in defiance of great exertions a majority, but very small indeed. a correspondence has certainly been opened thro a mr. o.[swald] of philad^a from the malcontents of b. & n. y. to us--it has its operation, but i believe we are still safe, unless the question of adjournment should be introduced, & love of home may induce some of our friends to abandon their principles."[ ] "the business is in the most ticklish state that can be imagined," madison informed washington; "the majority will certainly be very small on whatever side it may finally lie; and i dare not encourage much expectation that it will be on the favorable side. oswald of philad^a has been here with letters for the anti-federal leaders from n. york and probably philad^a. he staid a very short time here during which he was occasionally closeted with h----y m--s--n &c."[ ] on monday the anti-constitutionalists were first in the field. they were by now displaying improved tactics. henry opened on the dangers of a standing army. "if congress shall say that the general welfare requires it, they may keep armies continually on foot.... they may billet them on the people at pleasure." this is "a most dangerous power! its principles are despotic."[ ] madison followed,[ ] and mason, corbin, and grayson also spoke,[ ] the latter asserting that, under the constitution, the states could not "command the militia" unless by implication. here marshall again took part in the debate.[ ] he asked whether grayson was serious in stating that the constitution left no power in the states over the militia unless by implication. under the constitution, state and national governments "each derived its powers from the people, and each was to act according to the powers given it." were "powers not given retained by implication?" asked marshall. was "this power [over the militia] not retained by the states, as they had not given it away?" it is true, he admitted, that "congress may call forth the militia" for national purposes--"as to suppress insurrections and repel invasions"; but the power given the states by the people "is not taken away, for the constitution does not say so." the power of congress over the ten miles square where the national capital was to be located is "exclusive ... because it is expressed [in the constitution] to be exclusive." marshall contended that any power given congress which before was in the states remained in both unless the constitution said otherwise or unless there was incompatibility in its exercise. so the states would have the same control over the militia as formerly. "when invaded or in imminent danger they [the states] can engage in war." grayson had said, declared marshall, that if the national government disciplined the militia, "they will form an aristocratic government, unsafe and unfit to be trusted." grayson interrupted marshall in an unsuccessful attempt to squirm out of the position in which the latter had placed him. he had only said that in its military features the constitution "was so constructed as to form a great aristocratic body." marshall retorted that "as the government was drawn from the people, the feelings and interests of the people would be attended to"; and, therefore, there would be no military aristocracy. "when the government is drawn from the people and depending on the people for its continuance, oppressive measures will not be attempted," argued marshall, "as they will certainly draw on their authors the resentment of those on whom they depend." no! cried he: "on this government, thus depending on ourselves for its existence, i will rest my safety." again marshall expressed his military experience and instincts. if war should come "what government is able to protect you?" he asked. "will any state depend on its own exertions?" no! if the national government is not given the power "state will fall after state and be a sacrifice to the want of power in the general government." uttering the motto of american nationalism, which, long years afterward, he declared to have been the ruling maxim of his entire life, marshall cried, "_united we are strong, divided we fall._" if the national militia cannot "draw the militia of one state to another ... every state must depend upon itself.... it requires a superintending power, ... to call forth the resources of all to protect all." replying to grayson's assertion that "a general regulation [of the militia] may be made to inflict punishments," marshall asked whether grayson imagined that a militia law would be "incapable of being changed?" grayson's idea "supposes that men renounce their own interests." and "if congress neglect our militia, we can arm them ourselves. cannot virginia import arms ... [and] put them into the hands of her militia men?" marshall summed up with the statement that the states derived no powers from the constitution "but retained them, though not acknowledged in any part of it."[ ] marshall's speech must have been better than anything indicated in the stenographer's report; for the resourceful grayson was moved to answer it at once[ ] and even henry felt called upon to reply to it.[ ] henry was very fond of marshall; and this affection of the mature statesman for the rising young lawyer saved the latter in a furious political contest ten years afterwards.[ ] the debate was continued by madison, mason, nicholas, lee, pendleton, and finally ended in a desultory conversation,[ ] but nothing important or notable was said in this phase of the debate. one statement, however, coming as it did from mason, flashes a side-light on the prevailing feeling that the proposed national government was something apart from the people. mason saw the most frightful dangers from the unlimited power of congress over the ten miles square provided for the national capital. "this ten miles square," cried mason, "may set at defiance the laws of the surrounding states, and may, like the custom of the superstitious days of our ancestors, become the sanctuary of the blackest crimes. here the federal courts are to sit.... what sort of a jury shall we have within the ten miles square?" asked mason, and himself answered, "the immediate creatures of the government. what chance will poor men get?... if an attempt should be made to establish tyranny over the people, here are ten miles square where the greatest offender may meet protection. if any of the officers or creatures [of the national government] should attempt to oppress the people or should actually perpetrate the blackest deed, he has nothing to do but to get into the ten miles square."[ ] the debate then turned upon amending the constitution by a bill of rights, the constitutionalists asserting that such an amendment was not necessary, and the opposition that it was absolutely essential. the question was "whether rights not given up were reserved?" henry, as usual, was vivid. he thought that, without a bill of rights, "excisemen may come in multitudes ... go into your cellars and rooms, and search, and ransack, and measure, everything you eat, drink, and wear." and the common law! the constitution did not guarantee its preservation. "congress may introduce the practice of the civil law, in preference to that of the common law; ... the practice of ... torturing, to extort a confession of the crime.... we are then lost and undone."[ ] the slavery question next got attention, mason, madison, tyler, henry, and nicholas continuing the discussion.[ ] under the first clause of the tenth section of article one, henry again brought up the payment of the continental debt. "he asked gentlemen who had been high in authority, whether there were not some state speculations on this matter. he had been informed that some states had acquired vast quantities of that money, which they would be able to recover in its nominal value of the other states." mason said "that he had been informed that some states had speculated most enormously in this matter. many individuals had speculated so as to make great fortunes on the ruin of their fellow-citizens." madison in reply assured the convention that the constitution itself placed the whole subject exactly where it was under the confederation; therefore, said he, it is "immaterial who holds those great quantities of paper money,... or at what value they acquired it."[ ] to this extent only was the point raised which became most vital when the national government was established and under way.[ ] madison's point, said mason, was good as far as it went; but, under the confederation, congress could discharge the continental money "at its depreciated value," which had gone down "to a thousand for one." but under the constitution "we must pay it shilling for shilling or at least at the rate of one for forty"; which would take "the last particle of our property.... we may be taxed for centuries, to give advantage to a few particular states in the union and a number of rapacious speculators." henry then turned madison's point that "the new constitution would place us in the same situation with the old"; for henry saw "clearly" that "this paper money must be discharged shilling for shilling."[ ] then henry brought up the scarecrow of the british debts, which had more to do with the opposition to the constitution in virginia[ ] than any other specific subject, excepting, perhaps, the threatened loss of the mississippi and the supreme objection that a national government would destroy the states and endanger "liberty." the opposition had now come to the point where they were fighting the separate provisions of the constitution one by one. when the first section of the second article, concerning the executive department, was reached, the opposition felt themselves on safe ground. the constitution here sapped the "great fundamental principle of responsibility in republicanism," according to mason.[ ] grayson wanted to know how the president would be punished if he abused his power. "will you call him before the senate? they are his counsellors and partners in crime."[ ] the treaty-making power, the command of the army, the method of electing the president, the failure of the constitution to provide for his rotation in office, all were, to the alarmed anti-constitutionalists, the chains and shackles of certain and inevitable despotism. the simple fears of the unlettered men who sullenly had fought the constitution in the massachusetts convention were stated and urged throughout the great debate in virginia by some of her ablest and most learned sons. madison was at his best in his exposition of the treaty-making power. but if the debate on the executive department had any effect whatever in getting votes for or against the constitution, the advantage was with the enemies of the proposed new government. grayson wrote to dane: "i think we got a vote by debating the powers of the president. this, you will observe, is confidential." but this was cold comfort, for, he added, "our affairs ... are in the most ticklish situation. we have got ten out of thirteen of the kentucke members but we wanted the whole: & i don't know that we have got one yet of the four upper counties: this is an important point & which both sides are contending for by every means in their power. i believe it is absolutely certain that we have got votes on our side which are inflexible & that eight persons are fluctuating & undecided."[ ] footnotes: [ ] "i am to acknowledge yours of the th of may, which reached me a few days since." (gouverneur morris from richmond, june , , to hamilton in new york; hamilton mss., lib. cong.) [ ] robert morris to horatio gates, richmond, june , ; ms., n.y. pub. lib. "james [wilson] the caladonian, leut. gen. of the myrmidons of power, under robert [morris] the cofferer, who with his aid-de-camp, _gouvero_ [gouverneur] the cunning man, has taken the field in virginia." (_centinel_, no. , jan. , ; reprinted in mcmaster and stone, .) robert morris was in richmond, march , . (morris to _independent gazetteer_ on that date; _ib._, , denying the charge that paper had made against him. see _supra_, chap. x.) he was in richmond in may and paid john marshall four pounds, four shillings as a "retainer." (account book, may , .) he had heavy business interests in virginia; see braxton _vs._ willing, morris & co. ( call, ). marshall was his lawyer. [ ] morris to gates, june , , _supra_. morris's remark about depredations on his purse may or may not refer to the work of the convention. he was always talking in this vein about his expenses; he had lost money in his virginia business ventures; and, having his family with him, may, for that reason, have found his southern trip expensive. my own belief is that no money was used to get votes; for henry, mason, and grayson surely would have heard of and, if so, denounced such an attempt. [ ] madison to hamilton, june , ; hamilton mss., lib. cong. [ ] grayson to lamb, june , ; quoted in leake: _lamb_, . [ ] grayson to lamb, june , ; quoted in leake: _lamb_, . [ ] grigsby, i, - . [ ] the new tavern at richmond--competitor of formicola's inn. [ ] grigsby, i, . [ ] kentucky had fourteen members. on the final vote, the constitution was ratified by a majority of only out of members present and voting. at the opening of the convention, grayson said that "the district of kentucke is with us, and if we can get all of the four counties, which lye on the ohio between the pennsylv^y line and big sandy creek, the day is our own." (grayson to dane, june , ; dane mss., lib. cong.) the constitutionalists finally succeeded in getting four of these kentucky votes. [ ] the jay-gardoqui agreement. [ ] jefferson to donald, feb. , ; jefferson's _writings_: washington, ii, ; and see monroe to jefferson, july , ; _writings_: hamilton, i, - . [ ] elliott, iii, - . the reporter noted that "mr. henry in a very animated manner expatiated on the evil and pernicious tendency of keeping secret the common proceedings of government." (_ib._, .) [ ] grigsby, i, footnote to . [ ] elliott, iii, - . [ ] lee, while pretending to praise the militia, really condemned it severely; and cited the militia's panic and flight at guilford court-house, which lost the battle to the americans. "had the line been supported that day," said he, "cornwallis, instead of surrendering at yorktown, would have laid down his arms at guilford." (elliott, iii, .) [ ] randolph's letter explaining why he had refused to sign the constitution. [ ] this was the only quarrel of the convention which threatened serious results. a duel was narrowly averted. colonel william cabell, as henry's friend, called on randolph that night; but matters were arranged and the tense situation relieved when it was learned, next morning, that no duel would take place. (grigsby, i, - .) [ ] elliott, iii, - . [ ] grigsby, i, - . [ ] elliott, iii, - . [ ] "when any other member spoke, the members of the audience would, in half an hour, be going out or moving from their seats." (winston to wirt, quoted in henry, ii, .) henry spoke every day of the twenty-two days' debate, except five; and often spoke several times a day. (_ib._, .) [ ] grigsby, i, . [ ] marshall's account book. the entry is: "[june] paid for coat for self ." two months earlier marshall paid "for nankin for breeches for self . ." (_ib._, april , .) yet about the same time he spent one pound, nine shillings at a "barbecue." [ ] grigsby, i, . [ ] marshall had provided for entertaining during the convention. his account book shows the following entry on may , : "paid mcdonald for wine " (pounds); and "bottles /" (shillings). this was the largest quantity of wine marshall had purchased up to that time. [ ] marshall's reputation for "eloquence" grew, as we shall see, until his monumental work on the supreme bench overshadowed his fame as a public speaker. [ ] elliott, iii, . [ ] marshall's idea was that government should be honest and efficient; a government by the people, whether good or bad, as a method of popular self-development and progress did not appeal to him as much as excellence in government. [ ] marshall here referred to the case of josiah philips, and fell into the same error as had randolph, henry, and others. (see _supra_, , footnote .) [ ] humphrey marshall, i, . humphrey marshall finally voted for the constitution, against the wishes of his constituents. (scott, - .) [ ] see vol. iii of this work. [ ] see entire speech in elliott, iii, - . [ ] some of the sentences used in this unprepared speech are similar to those found in the greatest of his opinions as chief justice. (see vol. iii of this work.) [ ] grigsby, i, - . [ ] elliott, iii, . [ ] _ib._, - . [ ] _ib._, - . [ ] _ib._, . [ ] this caustic reference was to the members of the convention who had been tories. (grigsby, i, ; elliott, iii, ; also rowland, ii, .) as we have seen most of the tories and revolutionary soldiers were united for the constitution. these former enemies were brought together by a common desire for a strong national government. [ ] elliott, iii, - . [ ] _ib._, - . [ ] grigsby, i, - . william grayson was one of the strongest men in virginia. he became virginia's first senator under the constitution. (see _infra_, vol. ii, chap. ii.) he filled and satisfied the public eye of his day as a soldier, scholar, and statesman. and yet he has dropped out of history almost completely. he is one of those rare personalities whom the whims of time and events have so obscured that they are to be seen but dimly through the mists. his character and mind can be measured but vaguely by fragments buried in neglected pages. william grayson's talents, work, and vanished fame remind one of the fine ability, and all but forgotten career of sir james mackintosh. [ ] elliott, iii, . [ ] elliott, iii, - (especial passage, ). [ ] elliott, iii, - . [ ] elliott, iii, - ; and see chap. ii, vol. ii, of this work. although this, like other economic phases of the contest, was of immediate, practical and serious concern to the people, henry touched upon it only twice thereafter and each time but briefly; and mason mentioned it only once. this fact is another proof of the small place which this grave part of the economic problem occupied in the minds of the foes of the constitution, in comparison with that of "liberty" as endangered by a strong national government. [ ] elliott, iii, . at this time the fears of the anti-constitutionalists were principally that the powers given the national government would "swallow up" the state governments; and it was not until long afterward that objection was made to the right and power of the national supreme court to declare a law of congress unconstitutional. (see vol. iii of this work.) [ ] _ib._, - . [ ] _ib._, - . [ ] _ib._, - . [ ] elliott, iii, - . [ ] grigsby, i, and . [ ] _ib._, ; elliott, iii, - . this, the real vote-getting part of henry's speech, is not reported by robertson. [ ] grigsby, i, . [ ] elliott, iii, . [ ] _ib._, - . [ ] grigsby, i, . [ ] elliott, iii, - . [ ] gouverneur morris from richmond to hamilton in new york, june , ; hamilton mss., lib. cong. [ ] madison to hamilton, june , ; hamilton mss., lib. cong. [ ] lee to hamilton; hamilton mss., lib. cong. the first paragraph of lee's letter to hamilton shows that the latter was helping his friend financially; for lee wrote, "god bless you & your efforts to save me from the manifold purse misfortunes which have & continue to oppress me, whenever i attempt to aid human nature. you will do what you think best, & whatever you do i will confirm--hazard has acted the part of a decided rascal, & if i fail in my right, i may not in personal revenge." (_ib._) [ ] madison to washington, june , ; _writings_: hunt, v, and footnote. [ ] elliott, iii, - . [ ] _ib._, - . [ ] _ib._, - . [ ] elliott, iii, - . [ ] elliott, iii, - . [ ] _ib._, - . [ ] _ib._, - . [ ] henry turned the tide in marshall's favor in the latter's hard fight for congress in . (_infra_, vol. ii, chap. x.) [ ] elliott, iii, . [ ] elliott, iii, . throughout the entire debate henry often sounded his loudest alarms on the supreme power of congress over the ten miles square where the national capital was to be located; and, indeed, this seems to have been one of the chief sources of popular apprehension. the fact that the people at large looked upon the proposed national government as something foreign, something akin to the british rule which had been overthrown, stares the student in the face wherever he turns among the records of the constitutional period. it is so important that it cannot too often be repeated. patrick henry, of course, who was the supreme popular orator of our history and who drew his strength from his perfect knowledge of the public mind and heart, might have been expected to make appeals based on this general fear. but when such men as george mason and william grayson, who belonged to virginia's highest classes and who were carefully educated men of conservative temper, did the same thing, we see how deep and strong was the general feeling against any central national power. [ ] elliott, iii, - . [ ] _ib._, - . [ ] elliott, iii, . [ ] it is exceedingly strange that in the debates on the constitution in the various state conventions, so little, comparatively, was made of the debt and the speculations in it. the preciousness of "liberty" and the danger of "monarchy," the security of the former through state sovereignty and the peril of the latter through national government, received far more attention than did the economic problem. [ ] elliott, - . and see vol. ii, chap. ii, of this work. [ ] "the recovery of the british debts can no longer be postponed and there now seems to be a moral certainty that your patrimony will all go to satisfy the unjust debt from your papa to the hanburys." (tucker to his stepsons, june , , quoted in conway, ; and see comment, _ib._) [ ] elliott, iii, . [ ] _ib._, . [ ] grayson to dane, june , ; dane mss., lib. cong. this shows the loose management of the anti-constitutionalist politicians: for kentucky had fourteen votes in the convention, instead of thirteen, as grayson declared; and so uncertain was the outcome that to omit a single vote in calculating the strength of the contending forces was unpardonable in one who was, and was accounted to be, a leader. chapter xii the strategy of victory washington's influence carried this government [virginia's ratification of the constitution]. (monroe to jefferson, july , .) if i shall be in the minority, i shall have those painful sensations which arise from a conviction of _being overpowered in a good cause_. yet i will be a peaceable citizen. (henry, in his last debate.) now came the real tug-of-war. the debate on the judiciary was the climax of the fight. and here john marshall was given the place of chief combatant. the opposition felt that again they might influence one or two delegates by mere debate, and they prepared to attack with all their might. "tomorrow the judiciary comes on when we [anti-constitutionalists] shall exert our whole force. it is expected we shall get two votes if the point is conducted in an able & masterly manner," grayson advised the opposition headquarters in new york.[ ] the judiciary was, indeed, the weakest part of the constitutionalists' battle line. the large amount of the british debts; the feeling, which virginia's legislation against the payment of them had fostered, that the day would be far distant and perhaps would never come when those debts would have to be paid; the provision of the constitution concerning the making of treaties, which were to be the supreme law of the land; the certainty that the treaty of peace would be covered by the new fundamental law; the fear that another treaty would be negotiated governing the british obligations more specifically, if the constitution were adopted; the fact that such a treaty and all other national laws would be enforced by national courts--all these and many other germane considerations, such as land grants and confused titles, were focused on the fears of the planters. the creditor class were equally anxious and alarmed. "if the new constitution should not be adopted or something similar, we are of the opinion that such is the interest and influence of debtors in our state that every thing ... will be at risk" was the opinion of the legal representatives in virginia of the collins mercantile house.[ ] great quantities of land granted under the royal government by great britain, but which the state had confiscated, had been bought and settled by thousands of men whose families now lived upon this land; and these settlers felt that, in some way, their titles would be in danger if they were dragged before a national court.[ ] the constitutionalists did not underestimate their peril, and at no point during the three weeks' debate did they prepare for battle with greater care. they returned to their original tactics and delivered the first blow. pendleton, of course, was the ideal man to lead the constitutionalist attack. and never in his whole life did that extraordinary man make a more convincing argument.[ ] mason tried his best to answer pendleton, although he admitted that the judiciary "lies out of my line." still he was clear, in his own mind, that the national judiciary was "so constructed as to destroy the dearest rights of the community," and thought it would "destroy the state governments, whatever may have been the intention." while mason spoke with uncertainty, it was in this brief speech that this eminent virginian uncovered the hidden thought and purpose of many of the constitutionalists; and uttered an unconscious prophecy which it was the destiny of john marshall to realize. "there are," said mason, "many gentlemen in the united states who think it right that we should have one great, national, consolidated government, and that it was better to bring it about slowly and imperceptibly rather than all at once. this is no reflection on any man, for i mean none. to those who think that one national, consolidated government is best for america, this extensive judicial authority will be agreeable"; and he further declared, "i know from my own knowledge many worthy gentlemen" of this opinion. madison demanded of mason "an unequivocal explanation." mason exonerated madison, personally, and admitted that "neither did i ever hear any of the delegates from this state advocate it." thus did the extreme courtesy of the virginia debate cause the opposition to yield one of its most effective weapons.[ ] but mason made the most out of the constitution's proposed judiciary establishment. take it at its best, said he: "even suppose the poor man should be able to obtain judgment in the inferior court, for the greatest injury, what justice can he get on appeal? can he go four or five hundred miles? can he stand the expense attending it?"[ ] as to the jurisdiction of national courts in controversies between citizens of different states, "can we not trust our state courts with a decision of these?" asked mason. "what!" cried he, "carry me a thousand miles from home--from my family and business--to where, perhaps, it will be impossible for me to prove that i paid" the money sued for. "is not a jury excluded absolutely?" by the constitution, asked mason. and even if a jury be possible in national courts, still, under the constitution, where is there any right to challenge jurors? "if i be tried in the federal court for a crime which may effect my life, have i a right of challenging or excepting to the jury?" this omission was a serious and immediate peril to great numbers of virginians, said he. "i dread the ruin that will be wrought on thirty thousand of our people [deriving their titles through fairfax] with respect to disputed lands. i am personally endangered as an inhabitant of the northern neck." under the constitution "the people of that part will be obliged ... to pay the quit rent of their lands." this was to mason, "a most serious alarm...." "lord fairfax's title was clear and undisputed," he continued. the state had "taxed his lands as private property"; but "after his death" virginia, in , "sequestered the quit rents due at his death, in the hands of his debtors. the following year" they were restored to his executor. then came the treaty of peace providing against "further confiscation"; but, "after this, an act of assembly passed, confiscating his [fairfax's] whole property." so, concluded mason, "as lord fairfax's title was indisputably good, and as treaties [under the constitution] are to be the supreme law of the land, will not his representatives be able to recover all in the federal court? how will gentlemen like to pay an additional tax on lands in the northern neck?" yet that was what they would be compelled to do if the constitution were adopted. thus they would be "doubly taxed." "were i going to my grave, i would appeal to heaven that i think it [this] true," fervently avowed the snowy-haired mason. thus mason made one of the cleverest appeals of the whole debate to the personal and pecuniary interests of a considerable number of the people and to several members of the convention. in this artful and somewhat demagogic argument he called attention to the lands involved in other extensive land grants. as we have seen, john marshall was then personally interested in the fairfax title,[ ] and he was soon to possess it; in after years, it was to develop one of the great legal contests of history; and the court over which marshall was to preside was to settle it definitively. although not a lawyer,[ ] madison now made an argument which was one of the distinguished intellectual performances of the convention. but he did not comprehend the sweep of the national judiciary's power. "it is not in the power of individuals," said madison, "to call any state into court." it may be that this statement influenced john marshall, who soon followed, to repeat it.[ ] but it was henry who gave the subject of the judiciary that thrill, anticipation of which filled every seat on the floor and packed the galleries. "mournful," to henry, were the recollections which the debate already had produced. "the purse is gone; the sword is gone," and now the scales of justice are to be given away. even the trial by jury is to be abandoned. henry spoke long and effectively; and, extravagant as most of his statements were, his penetrating mind was sometimes more nearly right in its forecast than even that of madison. as he closed, the daring of the patrick henry of and displayed itself. "shall americans give up that [jury trial] which nothing could induce the english people to relinquish?" he exclaimed. "the idea is abhorrent to my mind. there was a time when we should have spurned at it.... old as i am, it is probable i may yet have the appellation of _rebel_.... as this government [constitution] stands, i despise and abhor it," cried the unrivaled orator of the people.[ ] up now rose john marshall, whom the constitutionalist leaders had agreed upon for the critical task of defending the judiciary article. marshall, as we have seen, had begun the practice of law in richmond only five years before; and during much of this period his time and attention had been taken by his duties as a delegate in the legislature. yet his intellectual strength, the power of his personality, his likableness, and all the qualities of his mind and character had so impressed every one that, by common consent, he was the man for the hour and the work at hand. and marshall had carefully prepared his speech.[ ] the judiciary provided by the constitution was, said marshall "a great improvement on that system from which we are now departing. here [in the constitution] are tribunals appointed for _the decision of controversies_ which were before either not at all, or improperly, provided for. that many benefits will result from this to the members of the collective society, every one confesses." the national judiciary deserved the support of all unless it was "defectively organized and so constructed as to injure, instead of accommodate, the convenience of the people." after the "fair and able" discussion by its supporters, marshall supposed that its opponents "would be convinced of the impropriety of some of their objections. but," he lamented, "they still continue the same opposition." and what was their complaint? this: that national courts would not be as fair and impartial as state courts. but why not? asked marshall. was it because of their tenure of office or the method of choosing them? "what is it that makes us trust our [state] judges? their independence in office and manner of appointment."[ ] but, under the constitution, are not national judges "chosen with as much wisdom as the judges of the state governments? are they not equally, if not more independent? if so," will they not be equally fair and impartial? "if there be as much wisdom and knowledge in the united states as in a particular state," will they "not be equally exercised in the selection of [national] judges?" such were the questions which marshall poured upon the anti-constitutionalists. the kernel of the objection to national courts was, declared marshall, "a belief that there will not be a fair trial had in those courts." but it was plain, he argued, that "we are as secure there as anywhere else. what mischief results from some causes being tried there [in the national courts]?" independent judges "wisely appointed ... will never countenance an unfair trial." assuming this to be true "what are the subjects of the jurisdiction" of national courts? to mason's objection that congress could create any number of inferior courts it might deem necessary, marshall replied that he had supposed that those who feared congress would say that "no inferior courts" would be established, "but that we should be dragged to the centre of the union." on the contrary, the greater the number of these inferior courts, the less danger "of being dragged to the centre of the united states." mason's point, that the jurisdiction of national courts would extend to all cases, was absurd, argued marshall. for "has the government of the united states power to make laws on every subject?... laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? can" congress "go beyond the delegated powers?" certainly not. here marshall stated the doctrine which, fifteen years later, he was to announce from the supreme bench:-- "if," he asserted, "they [congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the [national] judges as an infringement of the constitution which they are to guard. they would not consider such a law as coming under their jurisdiction. _they would declare it void_.... to what quarter will you look for protection from an infringement of the constitution, if you will not give the power to the judiciary? there is no other body that can afford such a protection." the national courts would not supplant the state tribunals. the constitution did not "exclude state courts" from those cases which they now possess. "they have concurrent jurisdiction with the federal courts in those cases in which the latter have cognizance," expounded the nascent jurist. "are not controversies respecting lands claimed under the grants of different states the only controversies between citizens of the same state which the federal judiciary can take [exclusive] cognizance of?" the work of the national courts would make the state courts more efficient because it would relieve them of a mass of business of which they were not able to dispose. "does not every gentleman know that the causes in our [state] courts are more numerous than they can decide?" asked marshall. "look at the dockets," he exclaimed. "you will find them crowded with suits which the life of man will not see determined.[ ] if some of these suits be carried to other courts, will it be wrong? they will still have business enough." how vain and fanciful, argued marshall, the contention that national judges would screen "officers of the [national] government from merited punishment." does anybody really believe that "the federal sheriff will go into a poor man's house and beat him or abuse his family and the federal court will protect him," as mason and henry had said would be the case? even if a law should be passed authorizing "such great insults to the people ... it would be void," declared marshall. thus he stated for the second time the doctrine which he was, from the supreme bench, to put beyond controversy. why, asked marshall, "discriminate [in the constitution] between ... chancery, admiralty and the common law" as the anti-constitutionalists insisted upon doing? "why not leave it to congress? they ... would not wantonly infringe your rights." if they did, they would "render themselves hateful to the people at large." therefore, "something may be left to the legislature [congress] freely chosen by ourselves from among ourselves, who are to share the burdens imposed upon the community and who can be changed at our pleasure. where power may be trusted and there is no motive to abuse it, it ... is as well to leave it undetermined as to fix it in the constitution." these sentences had prophecy in them. indeed, they were to be repeated almost without change by the same man that now uttered them in debate, when he should ascend to the ultimate place of official interpretation of our fundamental law. while hamilton's immortal state papers profoundly impressed marshall, as we shall see, they were not, as many have supposed, the source of his convictions. in the virginia constitutional convention of marshall stated in debate the elements of most of his immortal nationalist opinions. but there was one exception. as to "disputes between _a state and the citizens of another state_," marshall hoped "that no gentleman will think that a state will be called at the bar of a federal court.... it is not rational to suppose that the sovereign power should be dragged before a court. the intent is to enable states to recover claims of individuals residing in other states." if there were partiality in this--"if an individual cannot ... obtain judgment against a state, though he may be sued by a state"--it was a difficulty which could "not be avoided"; let the claimant apply to the state legislature for relief. the objection to suits in the national courts between citizens of different states went "too far," contended marshall. such actions "may not in general be absolutely necessary," but surely in some such cases "the citizen ... ought to be able to recur to this [national] tribunal." what harm could it do? "will he get more than justice there? what has he to get? justice! shall we object to this because the citizen of another state can obtain justice without applying to our state courts?" indeed, "it may be necessary" in causes affected by "the laws and regulations of commerce" and "in cases of debt and some other controversies."... "in claims for land it is not necessary--but it is not dangerous." these suits between citizens of different states "will be instituted in the state where the defendant resides, and nowhere else," expounded the youthful interpreter of the constitution; and the case "will be determined by the laws of the state where the contract was made. according to those laws, and those only, can it be decided." that was no "novelty," but "a principle" long recognized in the jurisprudence of virginia. "the laws which governed the contract at its formation, govern it in its decision." national courts, in such controversies, would "preserve the peace of the union," because if courts of different states should not give justice between citizens of those states, the result would be "disputes between the states." also the jurisdiction of national courts in "controversies between a state and a foreign state ... will be the means of preventing disputes with foreign nations"; for since "the previous consent of the parties is necessary ... each party will acquiesce." as to "the exclusion of trial by jury, in this case," marshall asked, "does the word _court_ only mean the judges? does not the determination of the jury necessarily lead to the judgment of the court? is there anything" in the constitution "which gives the [national] judges exclusive jurisdiction of matters of fact? what is the object of a jury trial? to inform the court of the facts." if "a court has cognizance of facts," it certainly "can make inquiry by a jury," dryly observed marshall. he ridiculed mason's and henry's statement that juries, in the ten miles square which was to be the seat of the national government, would be "mere tools of parties with which he would not trust his person or property." "what!" exclaimed marshall, "will no one stay there but the tools and officers of the government?... will there not be independent merchants and respectable gentlemen of fortune ... worthy farmers and mechanics" in the national capital just as there were in richmond? and "will the officers of the government become improper to be on a jury? what is it to the government whether this man or that man succeeds? it is all one thing." as to jury trial not being guaranteed by the national constitution in civil cases, neither did virginia's constitution, said marshall, "direct trials by jury"; and the provision was "merely recommendatory" concerning jury trials in the bill of rights, which, as everybody knew, was no part of the state constitution. "have you a jury trial when a judgment is obtained on a replevin bond or by default?" or "when a motion is made by the commonwealth against an individual ... or by one joint obligor against another, to recover sums paid as security." of course not! "yet they are all civil cases.... the legislature of virginia does not give a trial by jury where it is not necessary, but gives it wherever it is thought expedient." and congress would do the same, he reassured the convention. mason's objection, that the right to challenge jurors was not guaranteed in the constitution, was trivial, said marshall. did virginia's constitution make such a guaranty? did the british constitution do so by any express provision? was jury challenge secured by magna charta? or by the bill of rights?[ ] every virginian knew that they were not. "this privilege is founded in their [english people's] laws," marshall reminded the convention. so why insert it in the american constitution? thus the inhabitants of the northern neck or anybody else were not in danger on that score. neither were they placed in jeopardy in any other way by the constitution. here marshall made a curious argument. mason, he said, had "acknowledged that there was no complete title[ ] [in fairfax].... was he [mason] not satisfied that the right of the legal representatives of the proprietor [to collect quitrents] did not exist at the time he mentioned [the date of the treaty of peace]? if so, it cannot exist now," declared marshall. "i trust those who come from that quarter [the northern neck] will not be intimidated on this account in voting on this question" he pleaded; for let them remember that there was "a law passed in [sequestration of quitrents] which secured this." let the "many poor men" who mason had said might "be harassed by the representatives of lord fairfax" rest assured on that point; for "if he [fairfax] has no right," they could not be disturbed. "if he has this right [to collect quitrents] and comes to virginia, what laws will his claims be determined by?" by virginia's laws. "by what tribunals will they be determined? by our state courts."[ ] so the "poor man" who was "unjustly prosecuted" would "be abundantly protected and satisfied by the temper of his neighbors."[ ] the truth was, said marshall, that justice would be done in all cases by both national and state courts. laws would not be "tyrannically executed" as the opposition feared; the "independency of your judges" would prevent that. "if," he argued, "a law be exercised tyrannically in virginia, to whom can you trust? to your judiciary! what security have you for justice? their independence! will it not be so in the federal court?" like other objections to the power of congress and the conduct of national courts, the criticism that men might be punished for their political opinions was, declared marshall, groundless and absurd; for, "the good opinion of the people at large must be consulted by their representatives--otherwise mischiefs would be produced which would shake the government to its foundations." of course, then, he contended, neither congress nor the courts would abuse their power. the charge that "unjust claims will be made, and the defendant had better pay them than go to the supreme court" was unthinkable. would anybody incur great expense to oppress another? "what will he gain by an unjust demand? does a claim establish a right? he must bring his witnesses to prove his claim"; otherwise "the expenses must fall on him." will he take the chances that the injured man will not appear and defend the unjust suit? "those who know human nature, black as it is," sarcastically observed marshall, "must know that mankind are too attached to their own interest to run such a risk." "the federal government," exclaimed marshall, "has no other motive, and has every reason for doing right which the members of our state legislature have. will a man on the eastern shore be sent to be tried in kentucky, or a man from kentucky be brought to the eastern shore to have his trial? a government, by doing this, would destroy itself."[ ] this, in effect, was john marshall's exposition of the second section of article three of the constitution. although grigsby, whose accuracy on such details is not questioned, says that the speech was prepared, robertson's report would not indicate that such was the case. the address is wanting in that close-knit continuity of reasoning and in that neatness of thought and expression which were marshall's peculiar excellence. like his first debate in the convention, his speech on the judiciary is disjointed. a subject is half treated in one part of his remarks and resumed in another.[ ] but he makes his principal points with clearness and power. his argument is based on the independence of the courts as the best guaranty against unjust decisions; the responsibility of congress to the people as the strongest safeguard against oppressive laws; and the similarity of virginia's constitution and courts to the national constitution and courts as proof of the security, fairness, and justice of the national judiciary. marshall's effort really closed the case for the constitution on the judiciary. that night madison wrote to hamilton that "a great effort is making" against the judiciary. "the retrospection to cases antecedent to the constitution, such as british debts and an apprehended revival of fairfax--indiana, vandalia, &c., claims are also brought into view in all the terrific colours which imagination can give them.... delay & an adjournment will be tried if the adverse party find their numbers inferior.... at present it is calculated that we still retain a majority of or ; and if we can weather the storm ag^{st}" the judiciary, "i shall hold the danger to be pretty well over. there is nevertheless a very disagreeable uncertainty in the case; and the more so as there is a possibility that our present strength may be miscalculated."[ ] marshall's speech alarmed the opposition, and grayson used all his learning, wit, and cleverness in an attempt to break its force. randolph replied. thus the second week closed. neither side was certain of the exact number of votes it had, though every member was observed with the politician's anxiety and care.[ ] the constitutionalists had the greater confidence. madison wrote his father that "the calculations on different sides do not accord;... i think however, the friends of the constitution are most confident of superiority.... it is not probable that many proselytes will be made on either side."[ ] on sunday madison made his weekly report to hamilton: "the judiciary department has been on the anvil for several days; and i presume will still be a further subject of disquisition. the attacks on it have apparently made less impression than was feared. but they may be secretly felt by particular interests that would not make the acknowledgment, and w^d chuse to ground their vote ag^{st} the constitution on other motives."[ ] the anti-constitutionalists were becoming desperate. if they could not amend the constitution as a condition of ratifying it, their game now was either an adjournment or a delay until the legislature, scheduled to meet on the following monday and known to be, in the main, opposed to the constitution, should afford them relief. if these expedients should fail, there was open talk of secession.[ ] the constitutionalists arranged for the utmost dispatch and planned to "withhold, by a studied fairness in every step on the side of the constitution, every pretext for rash experiments." they hoped to avoid previous amendment by proposing "to preface the ratification with some plain & general matters that cannot effect the validity of the" constitution. they felt that "these expedients are rendered prudent by the nice balance of members, and the scruples entertained by some who are in general well affected." but whether these devices "will secure us a majority," wrote madison, "i dare not positively to declare." so small was their expected majority likely to be, that the constitutionalists felt that "ordinary casualties ... may vary the result." they were exceedingly alarmed over the coming to town of the members of the legislature who "as individuals ... may have some influence and as coming immediately from the people at large they can give any colour they please to the popular sentiments at this moment, and may in that mode throw a bias on the representatives of the people in convention."[ ] from the adjournment on saturday until the convention again assembled on the following monday, june , the opposition decided that something more must be done to counteract marshall's exposition of the judiciary article. for this purpose their leader and strongest men took the floor. the shorthand reporter was not present on this day, but the printer of the debates took notes.[ ] nothing so well shows the esteem in which marshall's ability was held as patrick henry's compliment to his young associate. "i have," said henry, "the highest veneration and respect for the honorable gentleman, and i have experienced his candor on all occasions"; but "in this instance" henry felt that marshall was mistaken. "it is not on that paper before you we have to rely.... it is on those who may be appointed under it. it will be an empire of men, and not of laws." marshall interrupted henry to explain that the latter had not clearly understood him as to the trial by jury. henry responded that "the gentleman's candor, sir, as i informed you before, i have the highest opinion of, and am happy to find he has so far explained what he meant; but, sir, has he mended the matter?" then henry enlarged upon what he thought was the constitution's sacrifice of rights of trial by jury. what would become of this, that, and the other? what would be the end of this contract and that? and "what is to become of the _purchases of the indians_?--those unhappy nations who ... by being made drunk, have given a thousand, nay i might say, ten thousand acres, for the trifling sum of sixpence!" and what of those who owed the british debts?--they will "be ruined by being dragged into federal courts and the liberty and happiness of our citizens gone, never again to be recovered."[ ] the constitutionalists had anticipated that henry would touch on his hobby, the indians; and they were ready with an answer far more effective on the votes of the members than any argument, however weighty. hardly had henry closed when a giant old man got upon his feet. for more than thirty years this bluff and ancient veteran had been a soldier. since he had been one of the boldest and ablest of virginia's famous indian fighters and often had commanded the virginia rangers that defended the frontier from the savages. his utter fearlessness and tremendous physical strength had made him the terror of the red man, and his name was a household word throughout virginia as a bulwark against the savages. throughout the revolution he had borne himself as a hero. so when colonel adam stephen spoke, his words were sword-thrusts.[ ] henry, growled stephen, "means to frighten us by his bugbears of hobgoblins, his sale of lands to pay taxes, indian purchases and other horrors that i think i know as much about as he does." colonel stephen then described the indian country, the indian tribes, and indian trade. he also knew "of several rich mines of gold and silver in the western country" which would pay the taxes henry was so worried about. "if the gentleman [henry] does not like this government, let him go and live among the indians. i know of several nations that live very happily; and i can furnish him with a vocabulary of their language."[ ] nothing can be plainer than that this personal assault on henry was prearranged; for george nicholas followed it up with what came near being an open insult. answering henry's insinuation about indian lands being fraudulently purchased, nicholas retorted, looking directly at henry, "there are gentlemen who have come by large possessions that it is not easy to account for." this was taken as a reflection on some of henry's land speculations. the latter felt the sting; for "here mr. henry interfered and hoped the honorable gentleman meant nothing personal." nicholas snapped back, "i mean what i say, sir." the extremes to which the opposition went in lobbying with members and the nature of their conversation are shown by an acid sentence of nicholas in this speech. he referred to "an observation i have heard out of doors; which was that, because the new england men wore black stockings and plush breeches, there can be no union with them." henry was instantly on his feet when nicholas finished. he thought the convention floor "an improper place" to make "personal insinuations, or to wound my private reputation.... as to land matters, i can tell how i came by what i have ... i hold what i hold in right, and in a just manner." henry was most courteous and dignified in this discussion, disclaiming any intention to offend any one. nicholas responded that he "meant no personality ... nor ... any resentment." but, said he, "if such conduct meets the contempt of that gentleman [henry] i can only assure him it meets with an equal degree of contempt from me." here the president of the convention interfered and "hoped the gentlemen would not be personal; that they would proceed to investigate the subject calmly, and in a peaceable manner." thereupon nicholas admitted that he had not referred to henry when he first spoke, but to "those who had taken up large tracts of land in the western country"; nicholas had not, however, explained this before because he felt that henry had said some things that one gentleman ought not to say to another. thus ended the second of the only two instances in virginia's long and masterful debate which approached a personal quarrel or displayed even the smallest discourtesy.[ ] the debate now drew swiftly to a close. excitement ran high. the anti-constitutionalists, tense and desperate, threatened forcible opposition to the proposed national government if it should be established. mason "dreaded popular resistance" to the constitution and was "emphatic" in his fears of "_the dreadful effects_ ... should the people resist." gentlemen should pause before deciding "a question which involved such awful consequences." this so aroused lee that he could "no longer suppress" his "utterance." much as he liked and admired mason, lee asked him "if he has not pursued the very means to bring into action the horrors which he deprecates?" "such speeches within these walls, from a character so venerable and estimable," declared lee, "easily progress into overt acts, among the less thinking and the vicious." lee implored that the "god of heaven avert from my country the dreadful curse!" but, he thundered, "if the madness of some and the vice of others" should arouse popular resistance to the constitution, the friends of that instrument "will meet the afflicting call"; and he plainly intimated that any uprising of the people against the proposed national government would be met with arms.[ ] the guns of sumter were being forged. on the night of june , the constitutionalists decided to deliver their final assault. they knew that it must be a decisive one. the time had arrived for the meeting of the legislature which was hostile to the constitution;[ ] and if the friends of the proposed new government were to win at all, they must win quickly. a careful poll had shown them that straight-out ratification without amendment of some kind was impossible. so they followed the plan of the massachusetts constitutionalists and determined to offer amendments themselves--but amendments merely by way of recommendation and subsequent to ratification, instead of previous amendments as a condition of ratification. the venerable wythe was chosen to carry out the programme. on tuesday morning, june , pendleton called to the chair thomas mathews, one of the best parliamentarians in the convention, a stanch constitutionalist, a veteran of the revolution, and a popular man. instantly mathews recognized wythe; for henry was ready with his amendments, and, had an anti-constitutionalist been in the chair, would have been able to offer them before wythe could move for ratification. wythe, pale and fatigued, was so agitated that at first he could not speak plainly.[ ] after reviewing the whole subject, he said that to insist on previous amendments might dissolve the union, whereas all necessary amendments could easily be had after ratification. wythe then moved the constitutionalists' resolution for ratification. in a towering rage, henry rose for what, outside of the courtroom, was the last great speech of his life.[ ] he felt that he had been unjustly forestalled and that the battle against the constitution was failing because of the stern and unfair tactics of his foes.[ ] the constitutionalists admitted, said henry, that the constitution was "capitally defective"; yet they proposed to ratify it without first remedying its conceded faults. this was so absurd that he was "sure the gentleman [wythe] meant nothing but to amuse the committee. i know his candor," said henry. "his proposal is an idea dreadful to me.... the great body of yeomanry are in decided opposition" to the constitution. henry declared that of his own personal knowledge "nine tenths of the people" in "nineteen counties adjacent to each other" were against the proposed new national government. the constitutionalists' plan of "subsequent amendments will not do for men of this cast." and how do the people feel even in the states that had ratified it? look at pennsylvania! only ten thousand out of seventy thousand of her people were represented in the pennsylvania convention. if the constitution was ratified without previous amendments, henry declared that he would "have nothing to do with it." he offered the bill of rights and amendments which he himself had drawn, proposing to refer them to the other states "for their consideration, previous to its [constitution's] ratification."[ ] henry then turned upon the constitutionalists their own point by declaring that it was their plan of ratification without previous amendments which would endanger the union.[ ] randolph followed briefly and dawson at great length. madison for the constitutionalists, and grayson for the opposition, exerted themselves to the utmost. nature aided henry when he closed the day in an appeal such as only the supremely gifted can make. [illustration: patrick henry] "i see," cried henry, in rapt exaltation, "the awful immensity of the dangers with which it [the constitution] is pregnant. i see it. i feel it. i see beings of a higher order anxious concerning our decision. when i see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in america, and the consequent happiness or misery of mankind, i am led to believe that much of the account, on one side or the other, will depend on what we now decide. our own happiness alone is not affected by the event. all nations are interested in the determination. we have it in our power to secure the happiness of one half of the human race. its adoption may involve the misery of the other hemisphere."[ ] in the midst of this trance-like spell which the master conjurer had thrown over his hearers, a terrible storm suddenly arose. darkness fell upon the full light of day. lightnings flashed and crashing thunders shook the convention hall. with the inspiration of genius this unrivaled actor made the tempest seem a part of his own denunciation. the scene became insupportable. members rushed from their seats.[ ] as henry closed, the tempest died away. the spectators returned, the members recovered their composure, and the session was resumed.[ ] nicholas coldly moved that the question be put at nine o'clock on the following morning. clay and ronald opposed, the latter declaring that without such amendments "as will secure the happiness of the people" he would "though much against his inclination vote against this constitution." anxious and prolonged were the conferences of the constitutionalist managers that night. the legislature had convened. it was now or never for the friends of the constitution. the delay of a single day might lose them the contest. that night and the next morning they brought to bear every ounce of their strength. the convention met for its final session on the historic th of june, with the constitutionalists in gravest apprehension. they were not sure that henry would not carry out his threat to leave the hall; and they pictured to themselves the dreaded spectacle of that popular leader walking out at the head of the enraged opposition.[ ] into the hands of the burly nicholas the constitutionalists wisely gave command. the moment the convention was called to order, the chair recognized nicholas, who acted instantly with his characteristically icy and merciless decision. "the friends of the constitution," said nicholas, "wish to take up no more time, the matter being now fully discussed. they are convinced that further time will answer no end but to serve the cause of those who wish to destroy the constitution. we wish it to be ratified and such amendments as may be thought necessary to be subsequently considered by a committee in order to be recommended to congress." where, he defiantly asked, did the opposition get authority to say that the constitutionalists would not insist upon amendments after they had secured ratification of the constitution? they really wished for wythe's amendments;[ ] and would "agree to any others which" would "not destroy the spirit of the constitution." nicholas moved the reading of wythe's resolution in order that a vote might be taken upon it.[ ] tyler moved the reading of henry's proposed amendments and bill of bights. benjamin harrison protested against the constitutionalists' plan. he was for previous amendment, and thought wythe's "measure of adoption to be unwarrantable, precipitate, and dangerously impolitic." madison reassured those who were fearful that the constitutionalists, if they won on ratification, would not further urge the amendments wythe had offered; the constitutionalists then closed, as they had begun, with admirable strategy. james innes was attorney-general. his duties had kept him frequently from the convention. he was well educated, extremely popular, and had been one of the most gifted and gallant officers that virginia had sent to the front during the revolution. physically he was a colossus, the largest man in that state of giants. such was the popular and imposing champion which the constitutionalists had so well chosen to utter their parting word.[ ] and innes did his utmost in the hardest of situations; for if he took too much time, he would endanger his own cause; if he did not make a deep impression, he would fail in the purpose for which he was put forward.[ ] men who heard innes testify that "he spoke like one inspired."[ ] for the opposition the learned and accomplished tyler closed the general debate. it was time wasted on both sides. but that nothing might be left undone, the constitutionalists now brought into action a rough, forthright member from the valley. zachariah johnson spoke for "those who live in large, remote, back counties." he dwelt, he said, "among the poor people." the most that he could claim for himself was "to be of the middle rank." he had "a numerous offspring" and he was willing to trust their future to the constitution.[ ] henry could not restrain himself; but he would better not have spoken, for he admitted defeat. the anxious constitutionalists must have breathed a sigh of relief when henry said that he would not leave the hall. though "_overpowered in a good cause_, yet i will be a peaceable citizen." all he would try to do would be "to remove the defects of that system [the constitution] in a constitutional way." and so, declared the scarred veteran as he yielded his sword to the victors, he would "patiently wait in expectation of seeing that government changed, so as to be compatible with the safety, liberty, and happiness, of the people." wythe's resolution of ratification now came to a vote. no more carefully worded paper for the purposes it was intended to accomplish ever was laid before a deliberative body. it reassured those who feared the constitution, in language which went far to grant most of their demands; and while the resolve called for ratification, yet, "in order to relieve the apprehensions of those who may be solicitous for amendments," it provided that all necessary amendments be _recommended_ to congress. thus did the constitutionalists, who had exhausted all the resources of management, debate, and personal persuasion, now find it necessary to resort to the most delicate tact. the opposition moved to substitute for the ratification resolution one of their own, which declared "that previous to the ratification ... a declaration of rights ... together with amendments ... should be referred by this convention to the other states ... for their consideration." on this, the first test vote of the struggle, the constitutionalists won by the slender majority of out of a total of . on the main question which followed, the anti-constitutionalists lost but one vote and the constitution escaped defeat by a majority of only . to secure ratification, eight members of the convention voted against the wishes of their constituents,[ ] and two ignored their instructions.[ ] grayson openly but respectfully stated on the floor that the vote was the result of washington's influence. "i think," said he, "that, were it not for one great character in america, so many men would not be for this government."[ ] followers of their old commander as the members from the valley were, the fear of the indians had quite as much to do with getting their support for a stronger national government as had the weight of washington's influence.[ ] randolph "humbly supplicated one parting word" before the last vote was taken. it was a word of excuse and self-justification. his vote, he said, would be "ascribed by malice to motives unknown to his breast." he would "ask the mercy of god for every other act of his life," but for this he requested only heaven's justice. he still objected to the constitution, but the ratification of it by eight states had now "reduced our deliberations to the single question of _union_ or no _union_."[ ] so closed the greatest debate ever held over the constitution and one of the ablest parliamentary contests of history. a committee was appointed to report "a form of ratification pursuant to the first resolution"; and another was selected "to prepare and report such amendments as by them shall be deemed necessary."[ ] marshall was chosen as a member of both these important committees. the lengths to which the constitutionalists were driven in order to secure ratification are measured by the amendments they were forced to bring in. these numbered twenty, in addition to a bill of rights, which also had twenty articles. the ten amendments afterwards made to the constitution were hardly a shadow of those recommended by the virginia convention of . that body actually proposed that national excise or direct tax laws should not operate in any state, in case the state itself should collect its quota under state laws and through state officials; that two thirds of both houses of congress, present, should be necessary to pass navigation laws or laws regulating commerce; that no army or regular troops should be "raised or kept up in time of peace" without the consent of two thirds of both houses, present; that the power of congress over the seat of the national government should be confined to police and administrative regulation. the judiciary amendment would have imprisoned the supreme court within limits so narrow as to render that tribunal almost powerless and would have absolutely prevented the establishment of inferior national courts, except those of admiralty.[ ] yet only on such terms could ratification be secured even by the small and uncertain majority that finally voted for it. on june , clinton's suppressed letter to randolph was laid before the house of delegates which had just convened.[ ] mason was so furious that he drew up resolutions for an investigation of randolph's conduct.[ ] but the deed was done, anger was unavailing, and the resolutions never were offered.[ ] so frail was the constitutionalist strength that if the news of the new hampshire ratification had not reached virginia, it is more than probable that jefferson's advice would have been followed and that the old dominion would have held back until all the amendments desired by the opposition had been made a part of the fundamental law;[ ] and the constitution would have been a far different and infinitely weaker instrument than it is. burning with wrath, the anti-constitutionalists held a meeting on the night of the day of the vote for ratification, to consider measures for resisting the new national government. the character of patrick henry never shone with greater luster than when he took the chair at this determined gathering of furious men. he had done his best against the constitution, said henry, but he had done it in the "_proper place_"; the question was settled now and he advised his colleagues that "as true and faithful republicans, they had all better go home!"[ ] well might washington write that only "conciliatory conduct" got the constitution through;[ ] well might he declare that "it is nearly impossible for anybody who has not been on the spot (from any description) to conceive what the delicacy and danger of our situation have been."[ ] and marshall had been on the spot. marshall had seen it all. marshall had been a part of it all. from the first careful election programme of the constitutionalists, the young richmond lawyer had been in every meeting where the plans of the managers were laid and the order of battle arranged. no man in all the country knew better than he, the hair's breadth by which the ordinance of our national government escaped strangulation at its very birth. no one in america better understood how carefully and yet how boldly nationalism must be advanced if it were to grow stronger or even to survive. it was plain to marshall that the formal adoption of the constitution did not end the battle. that conflict, indeed, was only beginning. the fight over ratification had been but the first phase of the struggle. we are now to behold the next stages of that great contest, each as dramatic as it was vital; and we shall observe how marshall bore himself on every field of this mighty civil strife, note his development and mark his progress toward that supreme station for which events prepared him. we are to witness his efforts to uphold the national government, not only with argument and political activity, but also with a readiness to draw the sword and employ military force. we shall look upon the mad scenes resulting in america from the terrific and bloody convulsion in europe and measure the lasting effect the french revolution produced upon the statesmen and people of the united states. in short, we are to survey a strange swirl of forces, economic and emotional, throwing to the surface now one "issue" and now another, all of them centering in the sovereign question of nationalism or states' rights. footnotes: [ ] grayson to dane, june , ; dane mss., lib. cong. [ ] logan and story to stephen collins, petersburg, nov. , ; collins mss., lib. cong. [ ] see grigsby, i, - , for an able and sympathetic account from the point of view of the settler and debtor. [ ] _ib._, - ; elliott, iii, - . [ ] elliott, iii, ; grigsby, i, . so overwhelming was the popular feeling against a strong national government that, if the anti-constitutionalists had concentrated their attack upon this secret purpose of the leading constitutionalists to make it such by easy stages, it is more than probable that the constitution would have been defeated. [ ] elliott, iii, . [ ] his own and his father's lands in fauquier county were derived through the fairfax title. [ ] grigsby, i, . [ ] elliott, iii, - . for marshall's repetition see _ib._, - . [ ] elliott, iii, - . [ ] grigsby, i, . [ ] virginia judges were, at this period, appointed by the general assembly. (constitution, .) [ ] "there are upwards of , suits now entered on the docket in the general court; and the number is continually increasing. where this will end the lord only knows--should an act pass to extend the term of the courts sitting--it is thought that the number of executors [executions] that would issue ... would be too heavy for our government to bear and that such a rapid transfer of property would altogether stop the movement of our machine." (logan and story, to stephen collins, petersburg, nov. , ; collins mss., lib. cong.) [ ] this form of argument by asking questions to which the answers must needs be favorable to his contention was peculiarly characteristic of marshall. [ ] the reporter makes mason assert the reverse. [ ] it is hard to see how marshall arrived at this conclusion. but for the fact that marshall prepared this speech, one would think the reporter erred. [ ] see marshall's argument in hite _vs._ fairfax, chap, v, _supra_; and see vol. iii of this work. randolph made the clearest statement of the whole debate on the fairfax question:-- "lord fairfax ... died during the war. in the year , an act passed sequestering all quitrents, then due, in the hands of the persons holding the lands, until the right of descent should be known, and the general assembly should make final provision therein. this act directed all quitrents, thereafter becoming due, to be paid into the public treasury; so that, with respect to his descendants, this act confiscated the quitrents. in the year , an act passed restoring to the legal representative of the proprietor the quitrents due to him at the time of his death. but in the year another act passed, by which the inhabitants of the northern neck are exonerated and discharged from paying composition and quitrents to the commonwealth." but randolph then asserted that: "this last act has completely confiscated this property. it is repugnant to no part of the treaty, with respect to the quitrents confiscated by the act of ." so, continued he, "i ask the convention of the free people of virginia if there can be honesty in rejecting the government because justice is to be done by it? i beg the honourable gentleman to lay the objection to his heart." (elliott, iii, - .) [ ] elliott, iii, - . [ ] in summarizing marshall's speech, it is necessary to collect his arguments on any given point, and present them consecutively. in robertson's (elliott) report marshall scatters his points in distracting fashion. [ ] madison to hamilton, june , ; hamilton mss., lib. cong. [ ] the members of the convention were carefully watched and each side made, every night, a minute estimate of its votes. [ ] madison to his father, june , ; _writings_: hunt, v, footnote to . [ ] madison to hamilton, june , ; hamilton mss., lib. cong. [ ] _ib._ [ ] madison to hamilton, june , ; hamilton mss., lib. cong. [ ] elliott, iii, . [ ] elliott, iii, - . [ ] grigsby, i, . see washington's letters to stephen during the year of marshall's birth, when stephen, under washington, was fighting the french and indians. (_writings_: ford, i, , , , ; also _proceedings_, council of war, oct. , ; _ib._, - ; in which colonel adam stephen was presiding officer.) [ ] elliott, iii, . [ ] elliott, iii, - . [ ] elliott, iii, - . [ ] "virginia is the only instance among the ratifying states in which the politics of the legislature are at variance with the sense of the people, expressed by their representatives in convention." (madison to washington, nov. , ; _writings_: hunt, v, .) [ ] grigsby, i, . [ ] the two amazing speeches which henry made that day should be taken together. while both were inspired by what happened on the floor, yet they are in reality one. the reports give no idea of the tremendous effect which those who heard henry tell us these speeches had. [ ] grigsby, i, - . [ ] henry's amendments were practically the same as those which the convention finally adopted as recommendations subsequent to ratification instead of previous amendment on which ratification was conditioned. [ ] elliott, iii, - . [ ] elliott, iii, . this extract is badly mangled. the reporter confesses that he could take only a little of henry's peroration. elliott's reprint of robertson's reports gives scarcely a suggestion of its dramatic appeal. we are indebted to grigsby's patient work in collecting from eye and ear witnesses first-hand accounts, for a reasonably accurate description of the scene. [ ] grigsby, i, - ; also wirt, ; henry, ii, - ; and conway, . [ ] grigsby, i, - . [ ] grigsby, i, . [ ] very few of the constitutionalists wanted any amendments; and madison sorrowfully offered in congress the following year those that were reluctantly adopted. see vol. ii, chap. ii, of this work. [ ] elliott, iii, . [ ] grigsby, i, - . [ ] _ib._, . [ ] _ib._, . [ ] elliott, iii, - . [ ] henry, ii, . "at least ten members voted, either in disobedience of positive instructions of their constituents, or in defiance of their well known opinions." (grigsby, i, .) [ ] scott, - . [ ] elliott, iii, . madison frankly admitted that only the prominence of the framers of the constitution secured even a consideration of it by many of its warmest friends, much less by the people. "had the constitution been framed and recommended by an obscure individual," wrote madison, "instead of a body possessing public respect and confidence, there cannot be a doubt, that, although it would have stood in the identical words, it would have commanded little attention from those who now admire its wisdom." (madison to randolph, jan. , ; _writings_: hunt, v, .) [ ] grigsby, i, footnote to . [ ] elliott, iii, . [ ] elliott, iii. - . [ ] _ib._, - . [ ] clinton's letter was not read, however, because all the members of the legislature had gone to hear henry's last great speech. (conway, .) [ ] conway, ; henry, ii, . [ ] for mason's resolutions and a careful review of the incident, see rowland, ii, - . [ ] henry, ii, . [ ] _southern literary messenger_, i, ; also quoted in rowland, ii, . [ ] washington to pinckney, june , ; _writings_: ford, xi, . [ ] washington to jefferson, aug. , ; _ib._, . end of volume i appendix i will of thomas marshall, "carpenter" in the name of god amen! i, thomas marshall of the county of westmoreland of washington parish, carpenter, being very weak but of perfect memory thanks be to god for it doth ordain this my last will and testament in manner and form following, first i give and bequeath my soul into the hands of my blessed creator & redeemer hoping through meritts of my blessed saviour to receive full pardon and remission of all my sins and my body to the earth to be decently bur-yed according to the discretion of my executrix which hereafter shall be named. imps. i make and ordain my well beloved wife martha marshall to be my full and whole executrix--item, i will that my estate shall remain in the hands of my wife as long as she remain single but in case she marrys then she is to have her lawful part & the rest to be taken out of her hands equally to be divided among my children--item, i will that if my wife marry, that david brown senr. and jno. brown to be guardians over my children and to take the estate in their hands bringing it to appraisement giving in good security to what it is valued and to pay my children their dues as they shall come to age. item--i will that elizabeth rosser is to have a heifer delivered by my wife called white-belly to be delivered as soon as i am deceast--item, i will that my son william marshall shall have my plantation as soon as he comes to age to him and his heirs forever, but in case that my son william die before he comes to age or die without issue then my plantation is to fall to the next heir apparent at law. thomas marshall (seal) test edw: taylor, john hearford, john taylor. { at a court held for the said county the westmorld: ss. { st day of may . the last will and testament of thomas marshall within written was proved by the oaths of john oxford and john taylor two of the witnesses thereto subscribed and a probat thereof granted to martha marshall his relict and executrix therein named. test ia: westcomb cler. com. ped. record aty: sexto die juny: . pr. _eundm clerum._ a copy. teste: albert stuart, clerk. by: f. f. chandler, deputy clerk. [a copy. will of thomas marshall. recorded in the clerk's office of the circuit court of westmoreland county, in deed and will book no. at page _et seq._] ii will of john marshall "of the forest" the last will and testament of john marshall being very sick and weak but of perfect mind and memory is as followeth. first of all i give and recommend my soul to god that gave it and my body to the ground to be buried in a christian like and discent manner at the discretion of my executors hereafter mentioned? item i give and bequeath unto my beloved daughter sarah lovell one negro girl named rachel now in possession of robert lovell. item i give and bequeath unto my beloved daughter ann smith one negro boy named danniel now in possession of augustine smith. item i give and bequeath unto my beloved daughter lize smith one negro boy named will now in possession of john smith. item i give and bequeath unto my well beloved wife elizabeth marshall one negro fellow named joe and one negro woman named cate and one negro woman named pen after delivering the first child next born of her body unto my son john until which time she shall remain in the possession of my wife likewise i leave my corn and meat to remain unappraised for the use of my wife and children also i give and bequeath unto my wife one gray mair named beauty and side saddle also six hogs also i leave her the use of my land during her widowhood, and afterwards to fall to my son thomas marshall and his heirs forever. item i leave my tobacco to pay my debts and if any be over for the clothing of my small children. item i give and bequeath unto my well beloved son thomas marshall one negro woman named hanno and one negroe child named jacob? item i give and bequeathe unto my well beloved son john marshall one negroe fellow named george and one negroe child named nan. item. i give and bequeathe unto my beloved son wm. marshall one negro woman named sall and one negro boy named hanable to remain in the possession of his mother until he come to the age of twenty years. item i give and bequeath unto my beloved son abraham marshall one negro boy named jim and one negroe girl named bett to remain in the possession of his mother until he come to the age of twenty years. item i give and bequeath unto my beloved daughter mary marshall one negro girl named cate and negro boy gus to remain in possession of her mother until she come to the age of eighteen years or until marriage. item, i give and bequeath unto my beloved daughter peggy marshall one negro boy named joshua and one negro girl named liz to remain in possession of her mother until she come to the age of eighteen or until marriage! item. i leave my personal estate except the legacies abovementioned to be equally divided between my wife and six children last above mentioned. item i constitute and appoint my wife and my two sons thos. marshall and john marshall executors of this my last will & testament in witness hereof i have hereunto set my hand and fixed my seal this first day of april one thousand seven hundred and fifty two. john marshall (seal) interlined before assigned. benjamin rallins } william houston } augustine smith } { at a court held for the said county the westmorland sct. { th day of may . this last will and testament of john marshall decd. was presented into court by eliza. his relict and thomas marshall two of his executors therein named who made oath thereto and being proved by the oaths of benja. rallings and augustine smith two of the witnesses thereto is admitted to record, and upon the motion of the said eliza. & thos. and their performing what the law in such cases require certificate is granted them for obtaining a probate thereof in due form. test george lee c. c. c. w. recorded the d. day of june . per g. l. c. c. w. c. a copy. teste: frank stuart, clerk of the circuit court of westmoreland county, state of virginia. [a copy. john marshall's will. recorded in the clerk's office of westmoreland county, state of virginia, in deeds and wills, no. , at page _et seq._] iii deed of william marshall to john marshall "of the forest" this indenture made the d day of october in ye first year of ye reign of our sovereign lord george ye d. by ye. grace of god of great brittain france & ireland king defendr. of ye faith &c. and in ye year of our lord god one thousand seven hundred & twenty seven, between william marshall of ye. county of king & queen in ye. colony of virginia planter of the one part & john marshall of ye. county of westmoreland virginia of the other part: witnesseth that ye sd. william marshall for and in consideration of ye. sum of five shillings sterling money of england to him in hand paid before ye sealing & delivery hereof ye. receipt whereof he doth hereby acknowledge & thereof & of every part thereof doth hereby acquit & discharge ye. sd john marshall his heirs exectrs & administrators by these presents, hath granted bargained & sold & doth hereby grant bargain & sell john marshall his heirs exectrs administrs & assigns all that tract or parsel of land (except ye parsel of land wch was sold out of it to michael hulburt) scitute lying & being in westmoreland county in washington parish on or near appamattox creek & being part of a tract of land containing acres formerly granted to jno: washington & tho: pope gents by patent dated the th septbr. & by them lost for want of seating & since granted to collo. nicholas spencer by ordr. genll. court dated septbr. ye st & by ye said spencer assign'd to ye. sd. jno: washington ye th of octobr. which sd. two hundred acres was conveyed & sold to thomas marshall by francis wright & afterwards acknowledged in court by john wright ye. th day of may which sd two hundred acres of land be ye. same more or less and bounded as follows beginning at a black oak standing in ye. southermost line of ye sd. acres & being a corner tree of a line that divideth this two hundred acres from one hundred acres of michael halbarts extending along ye. sd southermost lines west two hundred poles to a marked red oak, thence north poles to another marked red oak thence east poles to a black oak of ye sd. halberts to ye place it began, with all houses outhouses orchards water water courses woods under woods timbers & all other things thereunto belonging with the revertion & revertions remainder & remainders rents issues & yearly profits & every part & parcell thereof. to have and to hold ye. sd. land & premises unto ye. sd john marshall his heirs executors administrs & assignes from ye. day of ye date thereof for & during & untill the full end & term of six months from thence next ensuing fully to be compleat & ended to ye. end that by virtue thereof & of the statutes for transferring uses into possessions ye. sd john marshall might be in actual possession of ye premises & might be enabled to take and accept of a grant release of the same to him ye. sd john marshall his heires & assignes forever. in witness whereof the parties to these present indentures interchangeably have set----hands & seals ye. day & year first above written. wm marshall (seal) signd. seald & d'd in sight & presence of-- } francis lacon, jane lacon, thomas thompson } westmorld. ss. } at a court held for the sd. county the th } day of march . william marshall personally acknowledged this lease of land by him passed to john marshall to be his proper act and deed, which at the instance of the sd. john marshall is admitted to record. test g. turbervile, c.c.w. recorded the th day of march . pr. g. t. c. c. w. a copy. teste: frank stuart, clerk of the circuit court of westmoreland county, state of virginia. [a copy. william marshall to john marshall. deed. recorded in the clerk's office of westmoreland county, state of virginia, in deeds and wills, no. - , at page .] iv memorial of thomas marshall for military emoluments to the honorable the speaker and members of the house of delegates, the memorial of thomas marshall humbly sheweth. that your memorialist in aug^t was appointed major to the first minute battalion raisd within this commonwealth and early in october the same year enterd into actual service in which he continued during the following winter campaign. that while your memorialist commanded at the great bridge he was appointed major to the ^d virginia continental regim^t he did not however retire from service but retaind his command and continued at his post till the latter end of march when the troops under his command were relieved by those of the continent rais'd in this state, by which time the ^d virginia regim^t was rais'd and your memorialist immediately called on to take command in it. that in aug^t he together with the regiment to which he belonged in obedience to the orders they had rec^d began their march to new york, where they join'd the grand-army. that your memorialist continued in hard and unremitting service from this time till the close of the campaign of . that in the latter end of november your memorialist was informed by an official letter from the then governor, of his haveing been appointed by the general assembly of virginia to the command of the state regiment of artillery;--a command he was only induced to take by a preference he ever felt for artillery service. that your memorialist however retain'd his command and continued his service in the northern army till the end of the campaign when the troops were ordered into winter quarters. that your memorialist then return'd to virginia and about the middle of january following took command of his regim^t of artillery, which command he rataind till the th of february at which time, the term of enlistment of most of the soldiers of the regim^t having expired, they were discharged and your memorialist became a reduced officer. your memorialist conceived from the laws existing at the time he enter'd into the particular service of this state and from the different acts respecting the state troops which have since passd the legislature, that he should be intitled to every emolument to which he would have had a just claim had he remaind in the continental service. if however only particular discriptions of state officers are to receive such emoluments as continental are intitled to, your memorialist humbly presumes to hope that his haveing made three of the severest campaigns in the last war before he took command of the state regim^t of artillery, his haveing rendered, as he trusts, some services as commanding officer of that regiment, his haveing remaind in service till there was no longer a command for him, his having held himself in readiness to return to service, had his regiment been recruited, give him as fair a claim to military emoluments as any officer who has been in the particular service of this state. your memorialist therefore humbly prays that your honorable house will take his services into consideration and allow him those emoluments which may be given to other state officers whose services may not be superior to his. t. marshall. a true copy h. r. mcilwain, state librarian. june , . 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(story, in dillon; and binney, in dillon.) dodd, william e. statesmen of the old south, or from radicalism to conservative revolt. new york. . (dodd.) donnan, elizabeth, _editor_. _see_ bayard, james a. papers. douglas, _sir_ robert. peerage of scotland. edinburgh. . (douglas: _peerage of scotland_.) eckenrode, h. j. the revolution in virginia. boston. . (eckenrode: _r. v._) ---- separation of church and state in virginia. a study in the development of the revolution. richmond. . [special report of the department of archives and history of the virginia state library.] (eckenrode: _s. of c. and s._) _eighty years' progress of the united states, from the revolutionary war to the great rebellion._ [by eminent literary men.] new york. . _(eighty years' progress.)_ elliott, jonathan, _compiler_. the debates in the several state conventions of the adoption of the federal constitution. vols. philadelphia. . (elliott.) fithian, philip vickers. journal and letters, - . edited by john rogers williams. princeton university library. . (fithian.) flanders, henry. the lives and times of the chief justices of the supreme court of the united states. vols. philadelphia. . (flanders.) foote, rev. william henry. sketches of virginia, historical and biographical. vols. philadelphia. - . (foote: _sketches of virginia_.) ford, paul leicester, _editor._ essays on the constitution of the united states. new york. . (ford: _essays on the constitution_.) ---- pamphlets on the constitution of the united states. new york. . (ford: _p. on c._) _see also_ jefferson, thomas. works. ford, worthington chauncey, _editor_. _see_ jefferson, thomas. correspondence. _also see_ washington, george. writings. franklin, benjamin. writings. edited by albert henry smyth. vols. new york. . (_writings_: smyth.) freneau, philip. poems of philip freneau. edited by fred lewis pattee. vols. princeton. - . (freneau.) gallatin, albert. writings. edited by henry adams. vols. philadelphia. . (gallatin's _writings_: adams.) _see also_ adams, henry. life of albert gallatin. garland, hugh a. life of john randolph of roanoke. vols. new york. . (garland: _randolph_.) gibbs, george, _editor_. _see_ wolcott, oliver. memoirs of the administrations of washington and john adams. (gibbs.) goodrich, samuel g. recollections of a lifetime, or men and things i have seen. vols. new york. . (goodrich.) gosse, edmund. a history of eighteenth century literature. london. . (gosse: _history of eighteenth century literature_.) graydon, alexander. memoirs of his own time, with reminiscences of the men and events of the revolution. edited by john stockton littell. philadelphia. . (graydon.) _green bag, the_; an entertaining magazine for lawyers. edited by horace w. fuller. vols. - . boston. - . [after consolidated with _the central law journal_.] _(green bag.)_ grigsby, hugh blair. the history of the virginia federal convention of . virginia historical society. richmond. . [volume is volume , new series. volume is volume , new series.] (grigsby.) halsey, francis whiting. the old new york frontier. new york. . (halsey: _old new york frontier_.) hamilton, alexander. works. edited by john c. hamilton. vols. new york. . (_works_: hamilton.) ---- works. edited by henry cabot lodge. [federal edition.] vols. new york. . (_works_: lodge.) hamilton, john c., _editor_. history of the republic of the united states, as traced in the writings of alexander hamilton and his contemporaries. vols. new york. - . (hamilton: _history of the republic_.) _see also_ hamilton, alexander. works. hamilton, stanislaus murray, _editor_. _see_ monroe, james. writings. harding, samuel bannister. the contest over the ratification of the federal constitution in the state of massachusetts. new york. . (harding.) hart, albert bushnell. american history told by contemporaries. vols. new york. - . (hart.) hatch, louis clinton. administration of the american revolutionary army. new york. . (hatch.) hazen, charles downer. contemporary american opinion of the french revolution. baltimore. . (hazen.) heitman, francis bernard. historical register of officers of the continental army, during the war of the revolution. washington, d.c. . ---- same. revised and enlarged edition. washington. . (heitman.) hening, william waller. _see_ virginia. laws. henry, patrick. life, correspondence, and speeches. edited by william wirt henry. vols. new york. . (henry.) _see also_ wirt, william. sketches of life and character of patrick henry. henry, william wirt, _editor_. _see_ henry, patrick. life, correspondence, and speeches. hinsdale, b. a. the old northwest. vols. new york. . (hinsdale.) _historical magazine and notes and queries concerning the antiquities, history, and biography of america._ [ st series.] vols. - . new york. - . _(hist. mag.)_ _history of william and mary college_, from its foundation, , to . baltimore. . howe, henry. historical collections of virginia. charleston, s.c. . (howe.) hudson, frederic. journalism in the united states from to . new york. . (hudson: _journalism in the united states._) hunt, gaillard, _editor_. _see_ madison, james. writings. iredell, james. _see_ mcree, griffith j. life and correspondence of james iredell. irving, washington. the life of george washington. vols. new york. . (irving.) jameson, j. franklin, _editor_. essays in the constitutional history of the united states, - , by graduates and former members of johns hopkins university. boston. . (jameson.) jay, john. correspondence and public papers. edited by henry p. johnston. vols. new york. . (_jay_: johnston.) jefferson, thomas. correspondence, from originals in the collections of william k. bixby. edited by worthington chauncey ford. boston. . (_thomas jefferson correspondence_: ford.) ---- works. edited by paul leicester ford. federal edition. vols. new york. . (_works_: ford.) ---- writings. edited by h. a. washington. vols. washington, d.c. - . (jefferson's _writings_: washington.) _see_ morse, john t. thomas jefferson. _and see_ randall, henry s. life of thomas jefferson. _also see_ tucker, george. life of thomas jefferson. johnston, henry p., _editor_. _see_ jay, john. correspondence and public papers. jones, hugh. the present state of virginia. london. . (jones.) kapp, friedrich. life of major-general von steuben. new york. . (kapp.) keith, _sir_ william, _bart._ the history of the british plantations in america, part i, containing the history of virginia. london. . (keith: _history of virginia_.) king, charles r., _editor_. _see_ king, rufus. life and correspondence. king, rufus. life and correspondence. edited by charles r. king. vols. new york. . (king.) lamb, _general_ john. memoir and life. _see_ leake, isaac q. lang, andrew. history of english literature. new york. . [ d edition.] (lang: _history of english literature_.) la rochefoucauld-liancourt, franÇois alexandre frÉdÉric, _duc_ de. travels through the united states of north america. vols. london. . (la rochefoucauld.) leake, isaac q. memoir of the life and times of general john lamb, an officer of the revolution, and his correspondence with washington, clinton, patrick henry, and other distinguished men. albany. . (leake: _lamb_.) lee, edmund jennings. lee of virginia. - . biographical and genealogical sketches of the descendants of colonel richard lee. philadelphia. . (lee: _lee of virginia_.) lee, _colonel_ richard. lee of virginia. _see_ lee, edmund jennings. lodge, henry cabot. life and letters of george cabot. boston. . (lodge: _cabot_.) ---- george washington. vols. boston. . [american statesmen.] (lodge: _washington_.) _see also_ hamilton, alexander. works. lossing, benson j. the pictorial field-book of the revolution. vols. new york. . (lossing.) _see also_ washington, george. _diary._ lowdermilk, will h. history of cumberland (maryland). washington, d.c. . (lowdermilk.) m'clung, john alexander. sketches of western adventure. philadelphia. . (m'clung: _sketches of western adventure_.) mccrady, edward. the history of south carolina. vols. new york. - . (mccrady.) mchenry, james. life and correspondence. _see_ steiner, bernard c. mcmaster, john bach, _and_ stone, frederick d. pennsylvania and the federal constitution. philadelphia. . (mcmaster and stone.) mcree, griffith, j. life and correspondence of james iredell. vols. new york. . (mcree.) madison, james. writings. edited by gaillard hunt. vols. new york. . (_writings_: hunt.) _see also_ rives, william c. history of life and times. _magazine, the, of american history, with notes and queries._ vols. - . new york. - . (_mag. am. hist._) _magazine of western history._ cleveland, ohio. edited by william w. williams. vols. - . - . (_mag. western hist._) marshall, humphrey. the history of kentucky. vols. frankfort. . (humphrey marshall.) marshall, john. autobiography. _see_ smith, john jay _and_ watson, john fanning, _joint editors_. american historical and literary curiosities. (_autobiography._) ---- same. in national portrait gallery of eminent americans. paintings by alonzo chappel, and biographical and historical narratives by evert a. duyckinck. vols. new york. . ---- same, reprinted. _see_ dillon, john f. ---- life of george washington. [ st edition.] vols. philadelphia. . [ d edition.] vols. philadelphia. . [the d edition is cited in this work unless otherwise stated in the notes.] (marshall.) _see also_ thayer, james bradley. john marshall. _and see_ flanders, henry. lives of the chief justices. _also see_ van santvoord, george. sketches of the lives of the chief-justices. mason, george. life. _see_ rowland, kate mason. meade, _bishop_ william. old churches, ministers, and families of virginia. vols. richmond. . (meade.) miner, charles. history of wyoming, in a series of letters, from charles miner, to his son, william penn miner, esq. philadelphia. . (miner: _history of wyoming_.) minot, george richards. the history of the insurrections in massachusetts, in , and the rebellion consequent thereon. boston. . (minot: _history of the insurrections in massachusetts_.) monroe, james. writings. edited by stanislaus murray hamilton. vols. [unfinished work.] new york. - . (monroe's _writings_: hamilton.) moore, frank. diary of the american revolution, from newspapers and original documents. vols. new york. . (moore's _diary_.) mordecai, samuel. richmond in by-gone days, being reminiscences of an old citizen. richmond. . (mordecai.) morris, gouverneur. diary and letters. edited by anne cary morris. vols. london. . (morris.) morse, john t. thomas jefferson. boston. . [american statesmen.] (morse.) munford, william. _see_ virginia, law reports. new jersey historical society. proceedings. vols. - . newark. - . (_proc._, n.j. hist. soc.) niles, hezekiah. centennial offering, republication of the principles and acts of the revolution in america. new york. . (niles: _principles and acts of the revolution_.) nott, eliphalet. memoirs. _see_ van santvoord, c. paine, thomas. writings. edited by moncure daniel conway. vols. new york. - . (_writings_: conway.) paxton, william m. the marshall family, or a genealogical chart of the descendants of john marshall and elizabeth markham. cincinnati. . (paxton.) pecquet du bellet, louise. some prominent virginia families. vols. lynchburg, va. . (pecquet du bellet.) _pennsylvania magazine of history and biography._ published by the historical society of pennsylvania. vols. - . philadelphia. - . (_pa. mag. hist. and biog._) pickering, octavius. life of timothy pickering, by his son and continued by charles w. upham. vols. boston. - . (pickering: _pickering_.) pickering, timothy. life. _see_ pickering, octavius. quincy, josiah. figures of the past, from the leaves of old journals. boston. . (quincy: _figures of the past_.) randall, henry s. life of thomas jefferson. vols. new york. . (randall.) randolph, edmund. life and papers. _see_ conway, moncure daniel. randolph, john. life. _see_ garland, hugh a. rives, william c. the history of the life and times of james madison. vols. boston. . (rives.) rowland, kate mason. life of george mason. vols. new york. . (rowland.) sargent, winthrop. the history of an expedition against fort du quesne, in , under major-general edward braddock. philadelphia. . (sargent.) schoepf, johann david. travels in the confederation, - . translated and edited by alfred j. morrison. vols. philadelphia. . (schoepf.) scott, john, of fauquier county, va. the lost principle. by "barbarossa" [_pseud._]. richmond. . (scott.) slaughter, _rev._ philip. a history of st. mark's parish, culpepper county, virginia. baltimore. . (slaughter.) ---- a history of bristol parish, virginia. richmond. . (slaughter: _bristol parish_.) smith, john jay, _and_ watson, john fanning, _joint editors_. _american historical and literary curiosities._ new york. . (_am. hist and lit. curiosities._) smyth-stuart, j. ferdinand d. a tour in the united states of america. vols. london. . (smyth: _tour of the united states_.) _southern literary messenger._ vols. - . new york and washington. - . sparks, jared. the life of george washington. boston. . [same plates, .] (sparks.) ---- correspondence of the american revolution [being letters of eminent men to george washington]. vols. boston. . (_cor. rev._: sparks.) _see also_ washington, george. writings. stanard, mary newton. the story of bacon's rebellion. new york. . (stanard: _story of bacon's rebellion_.) steiner, bernard c. the life and correspondence of james mchenry. cleveland. . (steiner.) stephen, leslie. alexander pope. new york. . (stephen: _alexander pope_.) steuben, freidrich wilhelm august heinrich ferdinand, _baron_ von. life. _see_ kapp, friedrich. stillÉ, charles j[aneway]. major-general anthony wayne, and the pennsylvania line in the continental army. philadelphia. . (stillé.) story, joseph. discourse on john marshall, reprinted. _see_ dillon, john f. _also see_ story, william wirt. story, william wirt. life and letters of joseph story. vols. boston. . (story.) talleyrand-pÉrigord, charles maurice de, _prince_ de bÉnÉvent. memoirs. edited by the duc de broglie. vols. new york. . (_memoirs of talleyrand_: broglie's ed.) terhune, mary virginia hawes. some colonial homesteads and their stories. by marion harland [_pseud._]. vols. new york. . (terhune: _colonial homesteads_.) thayer, james bradley. john marshall. boston. . [riverside biographical series, no. .] (thayer.) traill, h. d., _editor_. social england. a record of the progress of the people. by various writers. vols. london. . (traill: _social england_.) trevelyan, _sir_ george otto, _bart._ the american revolution. vols. new york. . (trevelyan.) tucker, george. life of thomas jefferson. vols. philadelphia. . (tucker.) turner, frederick jackson. the old west. [printed in wisconsin historical society, _proceedings_ for .] madison, wis. . (turner: _the old west_.) tyler, lyon g. letters and times of the tylers. vols. richmond. . (tyler.) ---- williamsburg, the old colonial capital. richmond. . (tyler: _williamsburg_.) van buren, martin. inquiry into the origin and course of political parties in the united states. new york. . (van buren.) van santvoord, c. memoirs of eliphalet nott. new york. . (van santvoord: _memoirs of eliphalet nott_.) van santvoord, george. sketches of the lives and judicial services of the chief-justices of the supreme court of united states. new york. . (van santvoord.) _virginia historical papers._ manuscripts now in the virginia historical society library, at richmond. (_va. hist. prs._) virginia. house of burgesses. journal of the virginia house of burgesses. - . now in the archives of the virginia state library. (journal, h.b.) virginia. house of delegates. journal of the virginia house of delegates. - . now in the archives of the virginia state library. (journal, h.d.) virginia. laws. hening, william waller. the statutes at large. being a collection of the laws of virginia from to . vols. new york. - . (hening.) virginia. law reports. call, daniel. reports of cases argued and adjudged in the court of appeals of virginia. vols. richmond. - . (call.) ---- munford, william. reports of cases argued and determined in the supreme court of appeals, of virginia. vols. new york. . (munford). _virginia magazine of history and biography._ published by the virginia historical society. vols. - . richmond. - . (_va. mag. hist. and biog._) waldo, _surgeon_ albigence. diary at valley forge from nov. , to jan. , . [in _historical magazine_, vol. , pp. - , - .] wallace, david duncan. the life of henry laurens, with sketch of the life of lieutenant-colonel john laurens. new york. . (wallace.) warville. _see_ brissot de warville. washington, george. diary from to . edited by benson j. lossing. new york. . (washington's _diary_: lossing.) ---- writings. edited by worthington chauncey ford. vols. new york. - . (_writings_: ford.) ---- writings. edited by jared sparks. vols. boston. - . (_writings_: sparks.) _see_ irving, washington. life of george washington. _and_ lodge, henry cabot. george washington. _also_ marshall, john. life of george washington. _also see_ sparks, jared. life of george washington. washington, h. a., _editor_. _see_ jefferson, thomas. writings. watson, winslow c. men and times of the revolution, or memoirs of elkanah watson, by his son. new york. . (watson.) weedon, _general_ george. valley forge orderly book. new york. . (weedon.) weld, isaac. travels through the states of north america, and the provinces of upper and lower canada during the years , , and . [ d edition.] vols. london. . (weld.) wertenbaker, thomas j. patrician and plebeian in virginia, or the origin and development of the social classes of the old dominion. charlottesville, va. . (_wertenbaker_: _p. and p._) ---- virginia under the stuarts, - . princeton university. . (wertenbaker: _v. u. s._) wild, ebenezer. diary in the revolutionary war from to . [in massachusetts historical society, _proceedings_ ( d series), vol. , pp. - .] wilkinson, _general_ james. memoirs of my own times. vols. philadelphia. . (wilkinson: _memoirs_.) _william and mary college quarterly historical magazine._ richmond. vols. - . - . (_w. and m. c. q._) wirt, william. the letters of the british spy. [ th edition.] baltimore. . (wirt: _british spy_.) ---- sketches of the life and character of patrick henry. philadelphia. . (wirt.) wise, jennings cropper. ye kingdome of accawmacke, or the eastern shore of virginia, in the seventeenth century. richmond. . (wise.) wolcott, oliver. memoirs of the administrations of washington and john adams. edited from the papers of oliver wolcott, by george gibbs. vols. new york. . (gibbs.) wood, william. the fight for canada. westminster, . (wood.) * * * * * transcriber's notes: . passages in italics are surrounded by _underscores_. . obvious errors in spelling and punctuation have been corrected. . footnotes have been renumbered and moved from the page end to the end of their respective chapters. . images have been moved from the middle of a paragraph to the closest paragraph break. . certain words use an oe ligature in the original. . carat character (^) followed by a single letter or a set of letters in curly brackets is indicative of subscript in the original book. the life of john marshall standard library edition in four volumes volume iv [illustration: john marshall from the portrait by henry inman] the life of john marshall by albert j. beveridge volume iv the building of the nation - [illustration] boston and new york houghton mifflin company the riverside press cambridge copyright, , by albert j. beveridge all rights reserved contents i. the period of americanization war and marshall's career--federalists become british partisans--their hatred of france--republicans are exactly the reverse--the deep and opposite prejudices of marshall and jefferson--cause of their conflicting views--the people become europeanized--they lose sight of american considerations--critical need of a national american sentiment--origin of the war of --america suffers from both european belligerents--british depredations--jefferson retaliates by ineffective peaceful methods--the embargo laws passed--the federalists enraged--pickering makes sensational speech in the senate--marshall endorses it--congress passes the "force act"--jefferson practices an autocratic nationalism-- new england federalists propose armed resistance and openly advocate secession--marshall rebukes those who resist national authority--the case of gideon olmstead--pennsylvania forcibly resists order of the united states court--marshall's opinion in u.s. _vs._ judge peters--its historical significance--the british minister repeats the tactics of genêt--federalists uphold him--republicans make great gains in new england-- marshall's despondent letter--henry clay's heroic speeches-- war is declared--federalists violently oppose it: "the child of prostitution"--joseph story indignant and alarmed-- marshall proposed as presidential candidate of the peace party--writes long letter advocating coalition of "all who wish peace"--denounces napoleon and the decree of st. cloud-- he heads virginia commission to select trade route to the west--makes extended and difficult journey through the mountains--writes statesmanlike report--peace party nominates clinton--marshall criticizes report of secretary of state on the causes of the war--new england federalists determine upon secession--the administration pamphlet on expatriation--john lowell brilliantly attacks it--marshall warmly approves lowell's essay--his judicial opinions on expatriation--the coming of peace--results of the war--the new america is born. ii. marshall and story marshall's greatest constitutional decisions given during the decade after peace is declared--majority of supreme court becomes republican--marshall's influence over the associate justices--his life in richmond--his negligent attire--personal anecdotes--interest in farming--simplicity of habits--holds circuit court at raleigh--marshall's devotion to his wife--his religious belief--his children--life at oak hill--generosity-- member of quoit club--his "lawyer dinners"--delights in the reading of poetry and fiction--familiarity and friendliness-- joseph story first meets the chief justice--is captivated by his personality--marshall's dignity in presiding over supreme court--quickness at repartee--life in washington--marshall and associate justices live together in same boarding-house--his dislike of publicity--honorary degrees conferred--esteem of his contemporaries--his personality--calmness of manner--strength of intellect--his irresistible charm--likeness to abraham lincoln--the strong and brilliant bar practicing before the supreme court--legal oratory of the period--length of arguments--joseph story--his character and attainments-- birth and family--a republican--devotion to marshall--their friendship mutually helpful--jefferson fears marshall's influence on story--edward livingston sues jefferson for one hundred thousand dollars--circumstances leading to batture litigation--jefferson's desire to name district judge in virginia--jefferson in letter attacks marshall--he dictates appointment of john tyler to succeed cyrus griffin--death of justice cushing of the supreme court--jefferson tries to name cushing's successor--he objects to story--madison wishes to comply with jefferson's request--his consequent difficulty in filling place--appointment of story--jefferson prepares brief on batture case--public interest in case--case is heard-- marshall's opinion reflects on jefferson--chancellor kent's opinion--jefferson and livingston publish statements--marshall ascribes jefferson's animosity in subsequent years to the batture litigation. iii. international law marshall uniformly upholds acts of congress even when he thinks them unwise and of doubtful constitutionality--the embargo, non-importation, and non-intercourse laws--marshall's slight knowledge of admiralty law--his dependence on story--marshall is supreme only in constitutional law--high rank of his opinions on international law--examples: the schooner exchange; u.s. _vs._ palmer; the divina pastora; the venus; the nereid-- scenes in the court-room--appearance of the justices--william pinkney the leader of the american bar--his learning and eloquence--his extravagant dress and arrogant manner--story's admiration of him--marshall's tribute--character of the bar-- its members statesmen as well as lawyers--the attendance of women at arguments--mrs. smith's letter--american insurance co. _et al._ _vs._ david canter--story delivers the opinion in martin _vs._ hunter's lessee--reason for marshall's declining to sit in that case--the virginia republican organization-- the great political triumvirate, roane, ritchie, and taylor-- the fairfax litigation--the marshall purchase of a part of the fairfax estate--separate purchases of james m. marshall--the marshall and virginia "compromise"--virginia court of appeals decides in favor of hunter--national supreme court reverses state court--the latter's bold defiance of the national tribunal--marshall refuses to sit in the case of the granville heirs--history of the granville litigation--the second appeal from the virginia court in the fairfax-martin-hunter case--story's great opinion in fairfax's devisee _vs._ hunter's lessee--his first constitutional pronouncement--its resemblance to marshall's opinions--the chief justice disapproves one ground of story's opinion--his letter to his brother--anger of the virginia judges at reversal of their judgment--the virginia republican organization prepares to attack marshall. iv. financial and moral chaos february and march, , mark an epoch in american history-- marshall, at that time, delivers three of his greatest opinions--he surveys the state of the country--beholds terrible conditions--the moral, economic, and social breakdown--bad banking the immediate cause of the catastrophe--sound and brilliant career of the first bank of the united states-- causes of popular antagonism to it--jealousy of the state banks--jefferson's hostility to a central bank--john adams's description of state banking methods--opposition to rechartering the national institution--congress refuses to recharter it--abnormal increase of state banks--their great and unjustifiable profits--congress forced to charter second bank of the united states--immoral and uneconomic methods of state banks--growth of "private banks"--few restrictions placed on state and private banks and none regarded by them--popular craze for more "money"--character and habits of western settlers--local banks prey upon them--marshall's personal experience--state banks control local press, bar, and courts--ruthless foreclosures of mortgages and incredible sacrifices of property--counterfeiting and crime--people unjustly blame bank of the united states for their financial misfortunes--it is, at first, bad, and corruptly managed--is subsequently well administered--popular demand for bankruptcy laws--state "insolvency" statutes badly drawn and ruinously executed--speculators use them to escape the payment of their liabilities while retaining their assets--foreclosures and sheriff's sales increase--demand for "stay laws" in kentucky--marshall's intimate personal knowledge of conditions in that state--states begin to tax national bank out of existence--marshall delivers one of his great trilogy of opinions of on contract, fraud, and banking--effect of the decision of the supreme court in sturges _vs._ crowninshield. v. the dartmouth college case the dartmouth college case affected by the state of the country--marshall prepares his opinion while on his vacation--his views well known--his opinion in new jersey _vs._ wilson--eleazar wheelock's frontier indian school--the voyage and mission of whitaker and occom--funds to aid the school raised in england and scotland--the earl of dartmouth-- governor wentworth grants a royal charter--provisions of this document--colonel john wheelock becomes president of the college--the beginnings of strife--obscure and confused origins of the dartmouth controversy, including the slander of a woman's reputation, sectarian warfare, personal animosities, and partisan conflict--the college trustees and president wheelock become enemies--the hostile factions attack one another by means of pamphlets--the trustees remove wheelock from the presidency--the republican legislature passes laws violative of the college charter and establishing dartmouth university--violent political controversy--the college trustees and officers refuse to yield--the famous suit of trustees of dartmouth college _vs._ woodward is brought--the contract clause of the constitution is but lightly considered by webster, mason, and smith, attorneys for the college--supreme court of new hampshire upholds the acts of the legislature-- chief justice richardson delivers able opinion--the case appealed to the supreme court of the united states--webster makes his first great argument before that tribunal--he rests his case largely on "natural right" and "fundamental principles," and relies but little on the contract clause--he has small hopes of success--the court cannot agree--activity of college trustees and officers during the summer and autumn of --chancellor james kent advises justices johnson and livingston of the supreme court--william pinkney is retained by the opponents of the college--he plans to ask for a reargument and makes careful preparation--webster is alarmed--the supreme court opens in february, --marshall ignores pinkney and reads his opinion to which five associate justices assent--the joy of webster and disgust of pinkney--hopkinson's comment-- the effect of marshall's opinion--the foundations of good faith--comments upon marshall's opinion--the persistent vitality of his doctrine as announced in the dartmouth college case--departures from it--recent discussions of marshall's theory. vi. vitalizing the constitution the third of marshall's opinions delivered in --the facts in the case of m'culloch _vs._ maryland--pinkney makes the last but one of his great arguments--the final effort of luther martin--marshall delivers his historic opinion--he announces a radical nationalism--"the power to tax involves the power to destroy"--marshall's opinion is violently attacked--niles assails it in his _register_--declares it "more dangerous than _foreign_ invasion"--marshall's opinion more widely published than any previous judicial pronouncement--the virginia republican organization perceives its opportunity and strikes--marshall tells story of the coming assault--roane attacks in the richmond _enquirer_--"the people must rouse from the lap of delilah to meet the philistines"--the letters of "amphyction" and "hampden"--the united states is "as much a league as was the former confederation"--marshall is acutely alarmed by roane's attacks--he writes a dull and petulant newspaper defense of his brilliant opinion--regrets his controversial effort and refuses to permit its republication-- the virginia legislature passes resolutions denouncing his opinion and proposing a new tribunal to decide controversies between states and the nation--the slave power joins the attack upon marshall's doctrines--ohio aligns herself with virginia--ohio's dramatic resistance to the bank of the united states--passes extravagantly drastic laws--adopts resolutions denouncing marshall's opinions and defying the national government--pennsylvania, tennessee, indiana, illinois also demand a new court--john taylor "of caroline" writes his notable book, _construction construed_--jefferson warmly approves it--declares the national judiciary to be a "subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric." vii. threats of war relation of slavery and marshall's opinions--the south threatens war: "i behold a brother's sword crimsoned with a brother's blood"--northern men quail--the source and purpose of marshall's opinion in cohens _vs._ virginia--the facts in that case--a trivial police court controversy--the case probably "arranged"--william pinkney and david b. ogden appear for the cohens--senator james barbour, for virginia, threatens secession: "with them [state governments], it is to determine how long their [national] government shall endure"--marshall's opinion is an address to the american people--the grandeur of certain passages: "a constitution is framed for ages to come and is designed to approach immortality"--the constitution is vitalized by a "conservative power" within it--independence of the judiciary necessary to preservation of the republic-- marshall directly replies to the assailants of nationalism: "the states are members of one great empire"--marshall originates the phraseology, "a government of, by, and for the people"--publication of the opinion in cohens _vs._ virginia arouses intense excitement--roane savagely attacks marshall under the _nom de guerre_ of "algernon sidney"-- marshall is deeply angered--he writes story denouncing roane's articles--jefferson applauds and encourages attacks on marshall--marshall attributes to jefferson the assaults upon him and the supreme court--the incident of john e. hall and his _journal of american jurisprudence_--john taylor again assails marshall's opinions in his second book, _tyranny unmasked_-- he connects monopoly, the protective tariff, internal improvements, "exclusive privileges," and emancipation with marshall's nationalist philosophy--jefferson praises taylor's essay and declares for armed resistance to national "usurpation": "the states must meet the invader foot to foot"--senator richard m. johnson of kentucky, in congress, attacks marshall and the supreme court--offers an amendment to the constitution giving the senate appellate jurisdiction from that tribunal--roane asks the virginia legislature to demand an amendment to the national constitution limiting the power of the supreme court--senator johnson makes bold and powerful speech in the senate--declares the supreme court to be a denial of the whole democratic theory--webster sneers at johnson's address--kentucky and the supreme court--the "occupying claimant" laws--decisions in green _vs._ biddle--the kentucky legislature passes condemnatory and defiant resolutions-- justice william johnson infuriates the south by an opinion from the circuit bench--the connection of the foregoing events with the ohio bank case--the alignment of economic, political, and social forces--marshall delivers his opinion in osborn _vs._ the bank of the united states--the historical significance of his declaration in that case. viii. commerce made free fulton's experiments on the seine in paris--french scientists reject his invention--the livingston-fulton partnership-- livingston's former experiments in new york--secures monopoly grants from the legislature--these expire--the clermont makes the first successful steamboat voyage--water transportation revolutionized--new york grants monopoly of steamboat navigation to livingston and fulton--they send nicholas j. roosevelt to inspect the ohio and mississippi rivers--his romantic voyage to new orleans--louisiana grants exclusive steamboat privileges to livingston and fulton--new jersey retaliates on new york--connecticut forbids livingston and fulton boats to enter her waters--new york citizens defy the steamboat monopoly--livingston and fulton sue james van ingen--new york courts uphold the steamboat monopoly, and assert the right of the state to control navigation on its waters--the opinion of chief justice kent--the controversy between aaron ogden and thomas gibbons--ogden, operating under a license from livingston and fulton, sues gibbons--state courts again sustain the monopoly acts--gibbons appeals to the supreme court--ogden retains william pinkney--the case is dismissed, refiled, and continued--pinkney dies--argument not heard for three years--several states pass monopoly laws-- prodigious development of steamboat navigation--the demand for internal improvements stimulated--the slave interests deny power of congress to build roads and canals--the daring speech of john randolph--declares slavery imperiled--threatens armed resistance--remarkable alignment of opposing forces when gibbons _vs._ ogden is heard in supreme court--webster makes the greatest of his legal arguments--marshall's opinion one of his most masterful state papers--his former opinion on the circuit bench in the case of the brig wilson anticipates that in gibbons _vs._ ogden--the power of congress over interstate and foreign commerce absolute and exclusive--marshall attacks the enemies of nationalism--the immediate effect of marshall's opinion on steamboat transportation, manufacturing, and mining--later effect still more powerful--railway development incalculably encouraged--results to-day of marshall's theory of commerce--litigation in new york following the supreme court's decision--the whole-hearted nationalism of chief justice savage and chancellor sanford--popularity of marshall's opinion--the attack in congress on the supreme court weakens--martin van buren, while denouncing the "idolatry" for the supreme court, pays an exalted tribute to marshall: "the ablest judge now sitting on any judicial bench in the world"--senator john rowan of kentucky calls the new popular attitude toward the supreme court "a judicial superstition"--the case of brown _vs._ maryland--marshall's opinion completes his constitutional expositions of the commerce clause--taney's remarkable acknowledgment. ix. the supreme conservative marshall's dislike for the formal society of washington--his charming letters to his wife--he carefully avoids partisan politics--refrains from voting for twenty years--is irritated by newspaper report of partisanship--writes denial to the richmond _whig_--clay writes marshall--the chief justice explains incident to story--marshall's interest in politics-- his letter to his brother--permits himself to be elected to the virginia constitutional convention of - --his disgust at his "weakness"--writes story amusing account--issues before the convention deeply trouble him--he is frankly and unshakably conservative--the antiquated and undemocratic state constitution of and the aristocratic system under it--jefferson's brilliant indictment of both in a private letter--his alarm and anger when his letter is circulated--he tries to withdraw it--marshall's interest in the well-being of the people--his prophetic letter to charles f. mercer-- marshall's only public ideal that of nationalism--his views on slavery--letters to gurley and pickering--his judicial opinions involving slavery and the slave trade: the antelope; boyce _vs._ anderson--extreme conservatism of marshall's views on legislation and private property--letter to greenhow--opinions in ogden _vs._ saunders and bank _vs._ dandridge--marshall's work in the virginia convention--is against any reform--writes judiciary report--the aristocratic county court system-- marshall defends it--impressive tributes to marshall from members of the convention--his animated and powerful speeches on the judiciary--he answers giles, tazewell, and cabell, and carries the convention by an astonishing majority-- is opposed to manhood suffrage and exclusive white basis of representation--he pleads for compromise on the latter subject and prevails--reasons for his course in the convention--he probably prevents civil strife and bloodshed in virginia--the convention adjourns--history of craig _vs._ missouri--marshall's stern opinion--the splendid eloquence of his closing passage--three members of the supreme court file dissenting opinions--marshall's melancholy comments on them--congressional assaults on the supreme court renewed-- they are astonishingly weak, and are overwhelmingly defeated, but the vote is ominous. x. the final conflict sadness of marshall's last years--his health fails-- contemplates resigning--his letters to story--goes to philadelphia for surgical treatment--remarkable resolutions by the bar of that city--marshall's response--is successfully operated upon by dr. physick--his cheerfulness--letters to his wife--mrs. marshall dies--marshall's grief--his tribute to her--he is depressed by the course of president jackson--the warfare on the bank of the united states--congress recharters it--jackson vetoes the bank bill and assails marshall's opinions in the bank cases--the people acclaim jackson's veto-- marshall is disgusted--his letters to story--he is alarmed at the growth of disunion sentiment--causes of the recrudescence of localism--marshall's theory of constitutional construction and its relation to slavery--the tariff--the south gives stern warnings--dangerous agitation in south carolina--georgia asserts her "sovereignty" in the matter of the cherokee indians--the case of george tassels--georgia ignores the supreme court and rebukes marshall--the cherokee nation _vs._ georgia--the state again ignores the supreme court--marshall delivers his opinion in that case--worcester _vs._ georgia--the state defies the supreme court--marshall's opinion--georgia flouts the court and disregards its judgment--jackson supports georgia--story's melancholy letter--the case of james graves-- georgia once more defies the supreme court and threatens secession--south carolina encouraged by georgia's attitude-- nullification sentiment grows rapidly--the hayne-webster debate--webster's great speech a condensation of marshall's nationalist opinions--similarity of webster's language to that of marshall--the aged madison repudiates nullification-- marshall, pleased, writes story: "mr. madison is himself again"--the tariffs of and infuriate south carolina-- scenes and opinion in that state--marshall clearly states the situation--his letters to story--south carolina proclaims nullification--marshall's militant views--jackson issues his nullification proclamation--it is based on marshall's theory of the constitution and is a triumph for marshall--story's letter--hayne replies to jackson--south carolina flies to arms--virginia intercedes--both parties back down: south carolina suspends nullification and congress passes tariff of --marshall describes conditions in the south--his letters to story--he almost despairs of the republic-- public appreciation of his character--story dedicates his _commentaries_ to marshall--marshall presides over the supreme court for the last time--his fatal illness--he dies at philadelphia--the funeral at richmond--widespread expressions of sorrow--only one of condemnation--the long-continued mourning in virginia--marshall's old club resolves never to fill his place or increase its membership--story's "inscription for a cenotaph" and the words marshall wrote for his tomb. works cited in this volume index illustrations john marshall _colored frontispiece_ from the portrait painted in by henry inman, in the possession of the law association of philadelphia. a copy was presented to the connecticut state library by senator frank b. brandegee and was chosen by the secretary of the treasury out of all existing portraits to be engraved on steel for use as a vignette on certain government bonds and treasury notes. timothy pickering from a painting by stuart, owned by mr. robert m. pratt, boston. joseph story from a crayon drawing by his son, william wetmore story, in the possession of the family. william pinkney from the original painting by charles wilson peale, in the possession of pinkney's grandson, william pinkney whyte, esq., baltimore, maryland. john marshall from the bust in the court room of the united states supreme court. joseph hopkinson from a portrait owned by dartmouth college. associate justices sitting with marshall in the case of m'culloch versus maryland: bushrod washington, william johnson, brockholst livingston, thomas todd, joseph story, gabriel duval from etchings by max and albert rosenthal in hampton l. carson's history of _the supreme court of the united states_, reproduced through the courtesy of the lawyers' coöperative publishing company, rochester, new york. the etchings were made from originals as follows: washington, from a painting by chester harding in the possession of the family; johnson, from a painting by jarvis in the possession of the new york historical society; livingston, from a painting in the possession of the family; todd, from a painting in the possession of the family; story, from a drawing by william wetmore story in the possession of the family; duval, from a painting in the capitol at washington. mr. justice todd is included as a member of the court at that time, although absent because of illness. spencer roane from a painting in the court of appeals at richmond, virginia. john taylor of caroline from a painting in the possession of the virginia state library, richmond. john marshall from a portrait painted by j. b. martin and presented to the university of virginia in by john l. williams, esq., of richmond, virginia. silhouette of john marshall from the original found in the desk of mr. justice story. leeds manor from a photograph. this was the principal house in the fairfax purchase and was the home of marshall's son james keith marshall. the wing on the left was built especially for the use of chief justice marshall, who expected to spend his declining years there. many of his books and papers were kept in this house. associate justices at the last session of the supreme court over which john marshall presided: joseph story, smith thompson, john mclean, henry baldwin, james m. wayne from etchings by max and albert rosenthal in hampton l. carson's history of _the supreme court of the united states_, reproduced by the courtesy of the lawyers' coöperative publishing company, rochester, new york. the etchings were made from originals as follows: story, from a drawing by william wetmore story in the possession of the family; smith thompson from a painting by dumont in the possession of smith thompson, esq., hudson, new york; mclean, from a painting by ives, in the possession of mr. justice brown; baldwin, from a painting by lambdin in the possession of the family; wayne, from a photograph by brady in the possession of mr. justice field. the grave of john marshall from a photograph of the graves of marshall and his wife in the shockoe hill cemetery, richmond, virginia. list of abbreviated titles most frequently cited _all references here are to the list of authorities at the end of this volume_ adams: _u.s._ _see_ adams, henry. history of the united states. ambler: _ritchie._ _see_ ambler, charles henry. thomas ritchie: a study in virginia politics. _ames_: ames. _see_ ames, fisher. works. anderson. _see_ anderson, dice robins. william branch giles. babcock. _see_ babcock, kendric charles. rise of american nationality, - . _bayard papers_: donnan. _see_ bayard, james asheton. papers from to . edited by elizabeth donnan. _branch historical papers._ _see_ john p. branch historical papers. catterall. _see_ catterall, ralph charles henry. second bank of the united states. channing: _jeff. system._ _see_ channing, edward. jeffersonian system, - . channing: _u.s._ _see_ channing, edward. history of the united states. curtis. _see_ curtis, george ticknor. life of daniel webster. dewey. _see_ dewey, davis rich. financial history of the united states. dillon. _see_ dillon, john forrest. john marshall: life, character, and judicial services. _e. w. t._: thwaites. _see_ thwaites, reuben gold. early western travels. farrar. _see_ farrar, timothy. report of the case of the trustees of dartmouth college against william h. woodward. hildreth. _see_ hildreth, richard. history of the united states of america. hunt: _livingston._ _see_ hunt, charles havens. life of edward livingston. kennedy. _see_ kennedy, john pendleton. memoirs of the life of william wirt. king. _see_ king, rufus. life and correspondence. edited by charles r. king. lodge: _cabot._ _see_ lodge, henry cabot. life and letters of george cabot. lord. _see_ lord, john king. a history of dartmouth college, - . mcmaster. _see_ mcmaster, john bach. a history of the people of the united states. _memoirs, j. q. a._: adams. _see_ adams, john quincy. memoirs. edited by charles francis adams. morison: _otis._ _see_ morison, samuel eliot. life and letters of harrison gray otis. morris. _see_ morris, gouverneur. diary and letters. edited by anne cary morris. _n.e. federalism_: adams. _see_ adams, henry. documents relating to new-england federalism, - . parton: _jackson._ _see_ parton, james. life of andrew jackson. plumer. _see_ plumer, william, jr. life of william plumer. _priv. corres._: webster. _see_ webster, daniel. private correspondence. edited by fletcher webster. quincy: _quincy._ _see_ quincy, edmund. life of josiah quincy of massachusetts. randall. _see_ randall, henry stephens. life of thomas jefferson. _records fed. conv._: farrand. _see_ records of the federal convention of . edited by max farrand. richardson. _see_ richardson, james daniel. a compilation of the messages and papers of the presidents, - . shirley. _see_ shirley, john m. the dartmouth college causes and the supreme court of the united states. story. _see_ story, joseph. life and letters. edited by william wetmore story. sumner: _hist. am. currency._ _see_ sumner, william graham. a history of american currency. sumner: _jackson._ _see_ sumner, william graham. andrew jackson. as a public man. tyler: _tyler._ _see_ tyler, lyon gardiner. letters and times of the tylers. _works_: ford. _see_ jefferson, thomas. works. edited by paul leicester ford. _writings_: adams. _see_ gallatin, albert. writings. edited by henry adams. _writings_: hunt. _see_ madison, james. writings. edited by gaillard hunt. the life of john marshall the life of john marshall chapter i the period of americanization great britain is fighting our battles and the battles of mankind, and france is combating for the power to enslave and plunder us and all the world. (fisher ames.) though every one of these bugbears is an empty phantom, yet the people seem to believe every article of this bombastical creed. who shall touch these blind eyes. (john adams.) the object of england, long obvious, is to claim the ocean as her domain. (jefferson.) i am for resistance by the _sword_. (henry clay.) into the life of john marshall war was strangely woven. his birth, his young manhood, his public services before he became chief justice, were coincident with, and affected by, war. it seemed to be the decree of fate that his career should march side by side with armed conflict, and that the final phase of that career should open with a war--a war, too, which brought forth a national consciousness among the people and demonstrated a national strength hitherto unsuspected in their fundamental law. yet, while american nationalism was marshall's one and only great conception, and the fostering of it the purpose of his life, he was wholly out of sympathy with the national movement that led to our second conflict with great britain, and against the continuance of it. he heartily shared the opinion of the federalist leaders that the war of was unnecessary, unwise, and unrighteous. by the time france and england had renewed hostilities in , the sympathies of these men had become wholly british. the excesses of the french revolution had started them on this course of feeling and thinking. their detestation of jefferson, their abhorrence of republican doctrines, their resentment of virginia domination, all hastened their progress toward partisanship for great britain. they had, indeed, reverted to the colonial state of mind, and the old phrases, "the mother country," "the protection of the british fleet,"[ ] were forever on their lips. these federalists passionately hated france; to them france was only the monstrous child of the terrible revolution which, in the name of human rights, had attacked successfully every idea dear to their hearts--upset all order, endangered all property, overturned all respectability. they were sure that napoleon intended to subjugate the world; and that great britain was our only bulwark against the aggressions of the conqueror--that "varlet" whose "patron-saint [is] beelzebub," as gouverneur morris referred to napoleon.[ ] so, too, thought john marshall. no man, except his kinsman thomas jefferson, cherished a prejudice more fondly than he. perhaps no better example of first impressions strongly made and tenaciously retained can be found than in these two men. jefferson was as hostile as marshall was friendly to great britain; and they held exactly opposite sentiments toward france. jefferson's strongest title to immortality was the declaration of independence; nearly all of his foreign embroilments had been with british statesmen. in british conservatism he had found the most resolute opposition to those democratic reforms he so passionately championed, and which he rightly considered the manifestations of a world movement.[ ] and jefferson adored france, in whose entrancing capital he had spent his happiest years. there his radical tendencies had found encouragement. he looked upon the french revolution as the breaking of humanity's chains, politically, intellectually, spiritually.[ ] he believed that the war of the allied governments of europe against the new-born french republic was a monarchical combination to extinguish the flame of liberty which france had lighted. marshall, on the other hand, never could forget his experience with the french. and his revelation of what he had endured while in paris had brought him his first national fame.[ ] then, too, his idol, washington, had shared his own views--indeed, marshall had been instrumental in the formation of washington's settled opinions. marshall had championed the jay treaty, and, in doing so, had necessarily taken the side of great britain as opposed to france.[ ] his business interests[ ] powerfully inclined him in the same direction. his personal friends were the ageing federalists. he had also become obsessed with an almost religious devotion to the rights of property, to steady government by "the rich, the wise and good,"[ ] to "respectable" society. these convictions marshall found most firmly retained and best defended in the commercial centers of the east and north. the stoutest champions of marshall's beloved stability of institutions and customs were the old federalist leaders, particularly of new england and new york. they had been his comrades and associates in bygone days and continued to be his intimates. in short, john marshall had become the personification of the reaction against popular government that followed the french revolution. with him and men of his cast of mind, great britain had come to represent all that was enduring and good, and france all that was eruptive and evil. such was his outlook on social and political life when, after these traditional european foes were again at war, their spoliations of american commerce, violations of american rights, and insults to american honor once more became flagrant; and such continued to be his opinion and feeling after these aggressions had become intolerable. since the adoption of the constitution, nearly all americans, except the younger generation, had become re-europeanized in thought and feeling. their partisanship of france and great britain relegated america to a subordinate place in their minds and hearts. just as the anti-federalists and their successors, the republicans, had been more concerned in the triumph of revolutionary france over "monarchical" england than in the maintenance of american interests, rights, and honor, so now the federalists were equally violent in their championship of great britain in her conflict with the france of napoleon. precisely as the french partisans of a few years earlier had asserted that the cause of france was that of america also,[ ] the federalists now insisted that the success of great britain meant the salvation of the united states. "great britain is fighting our battles and the battles of mankind, and france is combating for the power to enslave and plunder us and all the world,"[ ] wrote that faithful interpreter of extreme new england federalism, fisher ames, just after the european conflict was renewed. such opinions were not confined to the north and east. in south carolina, john rutledge was under the same spell. writing to "the head quarters of good principles," boston, he avowed that "i have long considered england as but the advanced guard of our country.... if they fall we do."[ ] scores of quotations from prominent federalists expressive of the same views might be adduced.[ ] even the assault on the chesapeake did not change or even soften them.[ ] on the other hand, the advocates of france as ardently upheld her cause, as fiercely assailed great britain.[ ] never did americans more seriously need emancipation from foreign influence than in the early decades of the republic--never was it more vital to their well-being that the people should develop an american spirit, than at the height of the napoleonic wars. upon the renewal of the european conflict, great britain announced wholesale blockades of french ports,[ ] ordered the seizure of neutral ships wherever found carrying on trade with an enemy of england;[ ] and forbade them to enter the harbors of immense stretches of european coasts.[ ] in reply, napoleon declared the british islands to be under blockade, and ordered the capture in any waters whatsoever of all ships that had entered british harbors.[ ] great britain responded with the orders in council of which, in effect, prohibited the oceans to neutral vessels except such as traded directly with england or her colonies; and even this commerce was made subject to a special tax to be paid into the british treasury.[ ] napoleon's swift answer was the milan decree,[ ] which, among other things, directed all ships submitting to the british orders in council to be seized and confiscated in the ports of france or her allies, or captured on the high seas. all these "decrees," "orders," and "instructions" were, of course, in flagrant violation of international law, and were more injurious to america than to all other neutrals put together. both belligerents bore down upon american commerce and seized american ships with equal lawlessness.[ ] but, since great britain commanded the oceans,[ ] the united states suffered far more severely from the depredations of that power.[ ] under pressure of conflict, great britain increased her impressment[ ] of american sailors. in effect, our ports were blockaded.[ ] jefferson's lifelong prejudice against great britain[ ] would permit him to see in all this nothing but a sordid and brutal imperialism. not for a moment did he understand or consider the british point of view. england's "intentions have been to claim the ocean as her conquest, & prohibit any vessel from navigating it but on ... tribute," he wrote.[ ] nevertheless, he met great britain's orders and instructions with hesitant recommendations that the country be put in a state of defense; only feeble preliminary steps were taken to that end. the president's principal reliance was on the device of taking from great britain her american markets. so came the non-importation act of april, , prohibiting the admission of those products that constituted the bulk of great britain's immensely profitable trade with the united states.[ ] this economic measure was of no avail--it amounted to little more than an encouragement of successful smuggling. when the leopard attacked the chesapeake,[ ] jefferson issued his proclamation reciting the "enormity" as he called it, and ordering all british armed vessels from american waters.[ ] the spirit of america was at last aroused.[ ] demands for war rang throughout the land.[ ] but they did not come from the lips of federalists, who, with a few exceptions, protested loudly against any kind of retaliation. john lowell, unequaled in talent and learning among the brilliant group of federalists in boston, wrote a pamphlet in defense of british conduct.[ ] it was an uncommonly able performance, bright, informed, witty, well reasoned. "despising the threats of prosecution for treason," he would, said lowell, use his right of free speech to save the country from an unjustifiable war. what did the chesapeake incident, what did impressment of americans, what did anything and everything amount to, compared to the one tremendous fact of great britain's struggle with france? all thoughtful men knew that great britain alone stood between us and that slavery which would be our portion if france should prevail.[ ] lowell's sparkling essay well set forth the intense conviction of nearly all leading federalists. giles was not without justification when he branded them as "the mere anglican party."[ ] the london press had approved the attack on the chesapeake, applauded admiral berkeley, and even insisted upon war against the united states.[ ] american federalists were not far behind the _times_ and the _morning post_. jefferson, on the contrary, vividly stated the thought of the ordinary american: "the english being equally tyrannical at sea as he [bonaparte] is on land, & that tyranny bearing on us in every point of either honor or interest, i say, 'down with england' and as for what buonaparte is then to do to us, let us trust to the chapter of accidents, i cannot, with the anglomen, prefer a certain present evil to a future hypothetical one."[ ] but the president did not propose to execute his policy of "down with england" by any such horrid method as bloodshed. he would stop americans from trading with the world--that would prevent the capture of our ships and the impressment of our seamen.[ ] thus it was that the embargo act of december, , and the supplementary acts of january, march, and april, , were passed.[ ] all exportation by sea or land was rigidly forbidden under heavy penalties. even coasting vessels were not allowed to continue purely american trade unless heavy bond was given that landing would be made exclusively at american ports. flour could be shipped by sea only in case the president thought it necessary to keep from hunger the population of any given port.[ ] here was an exercise of national power such as john marshall had never dreamed of. the effect was disastrous. american ocean-carrying trade was ruined; british ships were given the monopoly of the seas.[ ] and england was not "downed," as jefferson expected. in fact neither france nor great britain relaxed its practices in the least.[ ] the commercial interests demanded the repeal of the embargo laws,[ ] so ruinous to american shipping, so destructive to american trade, so futile in redressing the wrongs we had suffered. massachusetts was enraged. a great proportion of the tonnage of the whole country was owned in that state and the embargo had paralyzed her chief industry. here was a fresh source of grievance against the administration and a just one. jefferson had, at last, given the federalists a real issue. had they availed themselves of it on economic and purely american grounds, they might have begun the rehabilitation of their weakened party throughout the country. but theirs were the vices of pride and of age--they could neither learn nor forget; could not estimate situations as they really were, but only as prejudice made them appear to be. as soon as congress convened in november, , new england opened the attack on jefferson's retaliatory measures. senator james hillhouse of connecticut offered a resolution for the repeal of the obnoxious statutes. "great britain was not to be threatened into compliance by a rod of coercion," he said.[ ] pickering made a speech which might well have been delivered in parliament.[ ] british maritime practices were right, the embargo wrong, and principally injurious to america.[ ] the orders in council had been issued only after great britain "had witnessed ... these atrocities" committed by napoleon and his plundering armies, "and seen the deadly weapon aimed at her vitals." yet jefferson had acted very much as if the united states were a vassal of france.[ ] again pickering addressed the senate, flatly charging that all embargo measures were "in exact conformity with the views and wishes of the french emperor, ... the most ruthless tyrant that has scourged the european world, since the roman empire fell!" suppose the british navy were destroyed and france triumphant over great britain--to the other titles of bonaparte would then "be added that of emperor of the two americas"; for what legions of soldiers "could he not send to the united states in the thousands of british ships, were they also at his command?"[ ] as soon as they were printed, pickering sent copies of these and speeches of other federalists to his close associate, the chief justice of the united states. marshall's prompt answer shows how far he had gone in company with new england federalist opinion. "i thank you very sincerely," he wrote "for the excellent speeches lately delivered in the senate.... if sound argument & correct reasoning could save our country it would be saved. nothing can be more completely demonstrated than the inefficacy of the embargo, yet that demonstration seems to be of no avail. i fear most seriously that the same spirit which so tenaciously maintains this measure will impel us to a war with the only power which protects any part of the civilized world from the despotism of that tyrant with whom we shall then be ravaged."[ ] such was the change that nine years had wrought in the views of john marshall. when secretary of state he had arraigned great britain for her conduct toward neutrals, denounced the impressment of american sailors, and branded her admiralty courts as habitually unjust if not corrupt.[ ] but his hatred of france had metamorphosed the man. before marshall had written this letter, the legislature of massachusetts formally declared that the continuance of the embargo would "endanger ... the union of these states."[ ] talk of secession was steadily growing in new england.[ ] the national government feared open rebellion.[ ] only one eminent federalist dissented from these views of the party leaders which marshall also held as fervently as they. that man was the one to whom he owed his place on the supreme bench. from his retirement in quincy, john adams watched the growing excitement with amused contempt. "our gazettes and pamphlets," he wrote, "tell us that bonaparte ... will conquer england, and command all the british navy, and send i know not how many hundred thousand soldiers here and conquer from new orleans to passamaquoddy. though every one of these bugbears is an empty phantom, yet the people seem to believe every article of this bombastical creed and tremble and shudder in consequence. who shall touch these blind eyes?"[ ] on january , , jefferson signed the "force act," which the republican congress had defiantly passed, and again marshall beheld such an assertion of national power as the boldest federalist of alien and sedition times never had suggested. collectors of customs were authorized to seize any vessel or wagon if they suspected the owner of an intention to evade the embargo laws; ships could be laden only in the presence of national officials, and sailing delayed or prohibited arbitrarily. rich rewards were provided for informers who should put the government on the track of any violation of the multitude of restrictions of these statutes or of the treasury regulations interpretative of them. the militia, the army, the navy were to be employed to enforce obedience.[ ] along the new england coasts popular wrath swept like a forest fire. violent resolutions were passed.[ ] the collector of boston, benjamin lincoln, refused to obey the law and resigned.[ ] the legislature of massachusetts passed a bill denouncing the "force act" as unconstitutional, and declaring any officer entering a house in execution of it to be guilty of a high misdemeanor, punishable by fine and imprisonment.[ ] the governor of connecticut declined the request of the secretary of war to afford military aid and addressed the legislature in a speech bristling with sedition.[ ] the embargo must go, said the federalists, or new england would appeal to arms. riots broke out in many towns. withdrawal from the union was openly advocated.[ ] nor was this sentiment confined to that section. "if the question were barely _stirred_ in new england, some states would drop off the union like fruit, _rotten ripe_," wrote a. c. hanson of baltimore.[ ] humphrey marshall of kentucky declared that he looked to "boston ... the cradle, and salem, the nourse, of american liberty," as "the source of reformation, or should that be unattainable, of disunion."[ ] warmly as he sympathized with federalist opinion of the absurd republican retaliatory measures, and earnestly as he shared federalist partisanship for great britain, john marshall deplored all talk of secession and sternly rebuked resistance to national authority, as is shown in his opinion in fletcher _vs._ peck,[ ] wherein he asserted the sovereignty of the nation over a state. another occasion, however, gave marshall a better opportunity to state his views more directly, and to charge them with the whole force of the concurrence of all his associates on the supreme bench. this occasion was the resistance of the legislature and governor of pennsylvania to a decree of richard peters, judge of the united states court for that district, rendered in the notable and dramatic case of gideon olmstead. during the revolution, olmstead and three other american sailors captured the british sloop active and sailed for egg harbor, new jersey. upon nearing their destination, they were overhauled by an armed vessel belonging to the state of pennsylvania and by an american privateer. the active was taken to philadelphia and claimed as a prize of war. the court awarded olmstead and his comrades only one fourth of the proceeds of the sale of the vessel, the other three fourths going to the state of pennsylvania, to the officers and crew of the state ship, and to those of the privateer. the continental prize court reversed the decision and ordered the whole amount received for sloop and cargo to be paid to olmstead and his associates. this the state court refused to do, and a litigation began which lasted for thirty years. the funds were invested in united states loan certificates, and these were delivered by the state judge to the state treasurer, david rittenhouse, upon a bond saving the judge harmless in case he, thereafter, should be compelled to pay the amount in controversy to olmstead. rittenhouse kept the securities in his personal possession, and after his death they were found among his effects with a note in his handwriting that they would become the property of pennsylvania when the state released him from his bond to the judge. in , olmstead secured from judge peters an order to the daughters of rittenhouse who, as his executrixes, had possession of the securities, to deliver them to olmstead and his associates. this proceeding of the national court was promptly met by an act of the state legislature which declared that the national court had "usurped" jurisdiction, and directed the governor to "protect the just rights of the state ... from any process whatever issued out of any federal court."[ ] peters, a good lawyer and an upright judge, but a timorous man, was cowed by this sharp defiance and did nothing. the executrixes held on to the securities. at last, on march , , olmstead applied to the supreme court of the united states for a rule directed to judge peters to show cause why a mandamus should not issue compelling him to execute his decree. peters made return that the act of the state legislature had caused him "from prudential ... motives ... to avoid embroiling the government of the united states and that of pennsylvania."[ ] thus the matter came before marshall. on february , , just when threats of resistance to the "force act" were sounding loudest, when riots were in progress along the new england seaboard, and a storm of debate over the embargo and non-intercourse laws was raging in congress, the chief justice delivered his opinion in the case of the united states _vs._ peters.[ ] the court had, began marshall, considered the return of judge peters "with great attention, and with serious concern." the act of the pennsylvania legislature challenged the very life of the national government, for, "if the legislatures of the several states may, at will, annul the judgments of the courts of the united states, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals." these clear, strong words were addressed to massachusetts and connecticut no less than to pennsylvania. they were meant for marshall's federalist comrades and friends--for pickering, and gore, and morris, and otis--as much as for the state officials in lancaster. his opinion was not confined to the case before him; it was meant for the whole country and especially for those localities where national laws were being denounced and violated, and national authority defied and flouted. considering the depth and fervor of marshall's feelings on the whole policy of the republican régime, his opinion in united states _vs._ judge peters was signally brave and noble. forcible resistance by a state to national authority! "so fatal a result must be deprecated by all; and the people of pennsylvania, _not less than the citizens of every other state_, must feel a deep interest in resisting principles so destructive of the union, and in averting consequences so fatal to themselves." marshall then states the facts of the controversy and concludes that "the state of pennsylvania can possess no constitutional right" to resist the authority of the national courts. his decision, he says, "is not made without extreme regret at the necessity which has induced the application." but, because "it is a solemn duty" to do so, the "mandamus must be awarded."[ ] marshall's opinion deeply angered the legislature and officials of pennsylvania.[ ] when judge peters, in obedience to the order of the supreme court, directed the united states marshal to enforce the decree in olmstead's favor, that official found the militia under command of general bright drawn up around the house of the two executrixes. the dispute was at last composed, largely because president madison rebuked pennsylvania and upheld the national courts.[ ] a week after the delivery of marshall's opinion, the most oppressive provisions of the embargo acts were repealed and a curious non-intercourse law enacted.[ ] one section directed the suspension of all commercial restrictions against france or great britain in case either belligerent revoked its orders or decrees against the united states; and this the president was to announce by proclamation. the new british minister, david m. erskine, now tendered apology and reparation for the attack on the chesapeake and positively assured the administration that, if the united states would renew intercourse with great britain, the british orders in council would be withdrawn on june , . immediately president madison issued his proclamation stating this fact and announcing that after that happy june day, americans might renew their long and ruinously suspended trade with all the world not subject to french control.[ ] the federalists were jubilant.[ ] but their joy was quickly turned to wrath--against the administration. great britain repudiated the agreement of her minister, recalled him, and sent another charged with rigid and impossible instructions.[ ] in deep humiliation, madison issued a second proclamation reciting the facts and restoring to full operation against great britain all the restrictive commercial and maritime laws remaining on the statute books.[ ] at a banquet in richmond, jefferson proposed a toast: "the freedom of the seas!"[ ] upon the arrival of francis james jackson, erskine's successor as british minister, the scenes of the genêt drama[ ] were repeated. jackson was arrogant and overbearing, and his instructions were as harsh as his disposition.[ ] soon the administration was forced to refuse further conference with him. jackson then issued an appeal to the american people in the form of a circular to british consuls in america, accusing the american government of trickery, concealment of facts, and all but downright falsehood.[ ] a letter of canning to the american minister at london[ ] found its way into the federalist newspapers, "doubtless by the connivance of the british minister," says joseph story. this letter was, story thought, an "infamous" appeal to the american people to repudiate their own government, "the old game of genêt played over again."[ ] furious altercations arose all over the country. the federalists defended jackson. when the elections came on, the republicans made tremendous gains in new england as well as in other states,[ ] a circumstance that depressed marshall profoundly. in december an acrimonious debate arose in congress over a resolution denouncing jackson's circular letter as a "direct and aggravated insult and affront to the american people and their government."[ ] every federalist opposed the resolution. josiah quincy of massachusetts declared that every word of it was a "falsehood," and that the adoption of it would call forth "severe retribution, perhaps in war" from great britain.[ ] disheartened, disgusted, wrathful, marshall wrote quincy: "the federalists of the south participate with their brethren of the north in the gloomy anticipations which your late elections must inspire. the proceedings of the house of representatives already demonstrate the influence of those elections on the affairs of the union. i had supposed that the late letter to mr. armstrong,[ ] and the late seizure [by the french] of an american vessel, simply because she was an american, added to previous burnings, ransoms, and confiscations, would have exhausted to the dregs our cup of servility and degradation; but these measures appear to make no impression on those to whom the united states confide their destinies. to what point are we verging?"[ ] nor did the chief justice keep quiet in richmond. "we have lost our resentment for the severest injuries a nation ever suffered, because of their being so often repeated. nay, judge marshall and mr. pickering & co. found out great britain had given us no cause of complaint,"[ ] writes john tyler. and ever nearer drew the inevitable conflict. jackson was unabashed by the condemnation of congress, and not without reason. wherever he went, more invitations to dine than he could accept poured in upon him from the "best families"; banquets were given in his honor; the senate of massachusetts adopted resolutions condemning the administration and upholding jackson, who declared that the state had "done more towards justifying me to the world than it was possible ... that i or any other person could do."[ ] the talk of secession grew.[ ] at a public banquet given jackson, pickering proposed the toast: "the world's last hope--britain's fast-anchored isle!" it was greeted with a storm of cheers. pickering's words sped over the country and became the political war cry of federalism.[ ] marshall, who in richmond was following "with anxiety" all political news, undoubtedly read it, and his letters show that pickering's words stated the opinion of the chief justice.[ ] upon the assurance of the french foreign minister that the berlin and milan decrees would be revoked after november , , president madison, on november , announced what he believed to be napoleon's settled determination, and recommended the resumption of commercial relations with france and the suspension of all intercourse with great britain unless that power also withdrew its injurious and offensive orders in council.[ ] when at washington, marshall was frequently in pickering's company. before the chief justice left for richmond, the massachusetts senator had lent him pamphlets containing part of john adams's "cunningham correspondence." in returning them, marshall wrote that he had read adams's letters "with regret." but the european war, rather than the "cunningham correspondence," was on the mind of the chief justice: "we are looking with anxiety towards the metropolis for political intelligence. report gives much importance to the communications of serrurier [the new french minister],[ ] & proclaims him to be charged with requisitions on our government, a submission to which would seem to be impossible.... i will flatter myself that i have not seen you for the last time. events have so fully demonstrated the correctness of your opinions on subjects the most interesting to our country that i cannot permit myself to believe the succeeding legislature of massachusetts will deprive the nation of your future services."[ ] as the federalist faith in great britain grew stronger, federalist distrust of the youthful and growing american people increased. early in , the bill to admit louisiana was considered. the federalists violently resisted it. josiah quincy declared that "if this bill passes, the bonds of this union are virtually dissolved; that the states which compose it are free from their moral obligations, and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation--amicably if they can, violently if they must."[ ] quincy was the embodiment of the soul of localism: "the first public love of my heart is the commonwealth of massachusetts. there is my fireside; there are the tombs of my ancestors."[ ] the spirit of american nationalism no longer dwelt in the breasts of even the youngest of the federalist leaders. its abode now was the hearts of the people of the west and south; and its strongest exponent was a young kentuckian, henry clay, whose feelings and words were those of the heroic seventies. although but thirty-three years old, he had been appointed for the second time to fill an unexpired term in the national senate. on february , , he addressed that body on the country's wrongs and duty: "have we not been for years contending against the tyranny of the ocean?" we have tried "_peaceful_ resistance.... when this is abandoned without effect, i am for resistance by the _sword_."[ ] two years later, in the house, to which he was elected immediately after his term in the senate expired, and of which he was promptly chosen speaker, clay again made an appeal to american patriotism: "the real cause of british aggression was not to distress an enemy, but to destroy a rival!"[ ] he passionately exclaimed. another patrick henry had arisen to lead america to a new independence. four other young representatives from the west and south, john c. calhoun, william lowndes, langdon cheves, and felix grundy were as hot for war as was henry clay.[ ] clay's speeches, extravagant, imprudent, and grandiose, had at least one merit: they were thoroughly american and expressed the opinion of the first generation of americans that had grown up since the colonies won their freedom. henry clay spoke their language. but it was not the language of the john marshall of . eventually the administration was forced to act. on june , , president madison sent to congress his message which briefly, and with moderation, stated the situation.[ ] on june , the house passed a bill declaring war on great britain. every federalist but three voted against it.[ ] the senate made unimportant amendments which the house accepted;[ ] and thus, on june , war was formally declared. at the fourth of july banquet of the boston federalists, among the toasts, by drinking to which the company exhilarated themselves, was this sentiment: "_the existing war_--the child of prostitution, may no american acknowledge it legitimate."[ ] joseph story was profoundly alarmed: "i am thoroughly convinced," he wrote, "that the leading federalists meditate a severance of the union."[ ] his apprehension was justified: "let the union be severed. such a severance presents no terrors to me," wrote the leading federalist of new england.[ ] while opposition to the war thus began to blaze into open and defiant treason in that section,[ ] the old-time southern federalists, who detested it no less, sought a more practical, though more timid, way to resist and end it. "success in this war, would most probably be the worst kind of ruin," wrote benjamin stoddert to the sympathetic james mchenry. "there is but one way to save our country ... change the administration--... this can be affected by bringing forward another virgn. as the competitor of madison." for none but a virginian can get the presidential electors of that state, said stoddert. "there is, then, but one man to be thought of as the candidate of the federalists and of all who were against the war. that man is john marshall." stoddert informs mchenry that he has written an article for a maryland federalist paper, the _spirit of seventy-six_, recommending marshall for president. "this i have done, because ... every body else ... seems to be seized with apathy ... and because i felt it sacred duty."[ ] stoddert's newspaper appeal for marshall's nomination was clear, persuasive, and well reasoned. it opened with the familiar federalist arguments against the war. it was an "_offensive_ war," which meant the ruin of america. "thus thinking ... i feel it a solemn duty to my countrymen, to name john marshall, as a man as highly gifted as any other in the united states, for the important office of chief magistrate; and more likely than any other to command the confidence, and unite the votes of that description of men, of all parties, who desire nothing from government, but that it should be wisely and faithfully administered.... "the sterling integrity of this gentleman's character and his high elevation of mind, forbid the suspicion, that he could descend to be a mere party president, or less than the president of the whole people:--but one objection can be urged against him by candid and honorable men: he is a virginian, and virginia has already furnished more than her full share of presidents--this objection in less critical times would be entitled to great weight; but situated as the world is, and as we are, the only consideration now should be, who amongst our ablest statesmen, can best unite the suffrages of the citizens of all parties, in a competition with mr. madison, whose continuance in power is incompatible with the safety of the nation?... "it may happen," continues stoddert, "that this our beloved country may be ruined for want of the services of the great and good man i have been prompted by sacred duty to introduce, from the mere want of energy among those of his immediate countrymen [virginians], who think of his virtues and talents as i do; and as i do of the crisis which demands their employment. "if in his native state men of this description will act in concert, & with a vigor called for by the occasion, and will let the people fairly know, that the contest is between john marshall, peace, and a new order of things; and james madison, albert gallatin and war, with war taxes, war loans, and all the other dreadful evils of a war in the present state of the world, my life for it they will succeed, and by a considerable majority of the independent votes of virginia." stoddert becomes so enthusiastic that he thinks victory possible without the assistance of marshall's own state: "even if they fail in virginia, the very effort will produce an animation in north carolina, the middle and eastern states, that will most probably secure the election of john marshall. at the worst nothing can be lost but a little labour in a good cause, and everything may be saved, or gained for our country." stoddert signs his plea "a maryland farmer."[ ] in his letter to mchenry he says: "they vote for electors in virga. by a general ticket, and i am thoroughly persuaded that if the men in that state, who prefer marshall to madison, can be animated into exertion, he will get the votes of that state. what little i can do by private letters to affect this will be done." stoddert had enlisted one john davis, an englishman--writer, traveler, and generally a rolling stone--in the scheme to nominate marshall. davis, it seems, went to virginia on this mission. after investigating conditions in that state, he had informed stoddert "that if the virgns. have nerve to believe it will be agreeable to the northern & e. states, he is sure marshall will get the virga. votes."[ ] stoddert dwells with the affection and anxiety of parentage upon his idea of marshall for president: "it is not because i prefer marshall to several other men, that i speak of him--but because i am well convinced it is vain to talk of any other man, and marshall is a man in whom fedts. may confide--perhaps indeed he is the man for the crisis, which demands great good sense, a great firmness under the garb of great moderation." he then urges mchenry to get to work for marshall--"support a cause [election of a peace president] on which all that is dear to you depends."[ ] stoddert also wrote two letters to william coleman of new york, editor of the _new york evening post_, urging marshall for the presidency.[ ] twelve days after stoddert thus instructed mchenry, marshall wrote strangely to robert smith of maryland. president madison had dismissed smith from the office of secretary of state for inefficiency in the conduct of our foreign affairs and for intriguing with his brother, senator samuel smith, and others against the administration's foreign policy.[ ] upon his ejection from the cabinet, smith proceeded to "vindicate" himself by publishing a dull and pompous "address" in which he asserted that we must have a president "of energetic mind, of enlarged and liberal views, of temperate and dignified deportment, of honourable and manly feelings, and as efficient in maintaining, as sagacious in discerning the rights of our much-injured and insulted country."[ ] this was a good summary of marshall's qualifications. when stoddert proposed marshall for the presidency, smith wrote the chief justice, enclosing a copy of his attack on the administration. on july , , more than five weeks after the united states had declared war, marshall replied: "although i have for several years forborn to intermingle with those questions which agitate & excite the feelings of party, it is impossible that i could be inattentive to passing events, or an unconcerned observer of them." but "as they have increased in their importance, the interest, which as an american i must take in them, has also increased; and the declaration of war has appeared to me, as it has to you, to be one of those portentous acts which ought to concentrate on itself the efforts of all those who can take an active part in rescuing their country from the ruin it threatens. "all minor considerations should be waived; the lines of subdivision between parties, if not absolutely effaced, should at least be convened for a time; and the great division between the friends of peace & the advocates of war ought alone to remain. it is an object of such magnitude as to give to almost every other, comparative insignificance; and all who wish peace ought to unite in the means which may facilitate its attainment, whatever may have been their differences of opinion on other points."[ ] marshall proceeds to analyze the causes of hostilities. these, he contends, were madison's subserviency to france and the base duplicity of napoleon. the british government and american federalists had, from the first, asserted that the emperor's revocation of the berlin and milan decrees was a mere trick to entrap that credulous french partisan, madison; and this they maintained with ever-increasing evidence to support them. for, in spite of napoleon's friendly words, american ships were still seized by the french as well as by the british. in response to the demand of joel barlow, the new american minister to france, for a forthright statement as to whether the obnoxious decrees against neutral commerce had or had not been revoked as to the united states, the french foreign minister delivered to barlow a new decree. this document, called "the decree of st. cloud," declared that the former edicts of napoleon, of which the american government complained, "are definitively, and to date from the st day of november last [ ], considered as not having existed [_non avenus_] in regard to american vessels." the "decree" was dated april , , yet it was handed to barlow on may , . it expressly stated, moreover, that napoleon issued it because the american congress had, by the act of may , , prohibited "the vessels and merchandise of great britain ... from entering into the ports of the united states."[ ] general john armstrong, the american minister who preceded barlow, never had heard of this decree; it had not been transmitted to the french minister at washington; it had not been made public in any way. it was a ruse, declared the federalists when news of it reached america--a cheap and tawdry trick to save madison's face, a palpable falsehood, a clumsy afterthought. so also asserted robert smith, and so he wrote to the chief justice. marshall agreed with the fallen baltimore politician. continuing his letter to smith, the longest and most unreserved he ever wrote, except to washington and to lee when on the french mission,[ ] the chief justice said: "the view you take of the edict purporting to bear date of the ^{th.} of april appears to me to be perfectly correct ... i am astonished, if in these times any thing ought to astonish, that the same impression is not made on all." marshall puts many questions based on dates, for the purpose of exposing the fraudulent nature of the french decree and continues: "had france felt for the united states any portion of that respect to which our real importance entitles us, would she have failed to give this proof of it? but regardless of the assertion made by the president in his proclamation of the ^{d.} of nov^{r.} , regardless of the communications made by the executive to the legislature, regardless of the acts of congress, and regardless of the propositions which we have invariably maintained in our diplomatic intercourse with great britain, the emperor has given a date to his decree, & has assigned a motive for its enactment, which in express terms contradict every assertion made by the american nation throughout all the departments of its government, & remove the foundation on which its whole system has been erected. "the motive for this offensive & contemptuous proceeding cannot be to rescue himself from the imputation of continuing to enforce his decrees after their formal repeal because this imputation is precisely as applicable to a repeal dated the ^{th.} of april as to one dated the ^{st} of november , since the execution of those decrees has continued after the one date as well as after the other. why then is this obvious fabrication such as we find it? why has m^{r.} barlow been unable to obtain a paper which might consult the honor & spare the feelings of his government? the answer is not to be disguised. bonaparte does not sufficiently respect us to exhibit for our sake, to france, to america, to britain, or to the world, any evidence of his having receded one step from the position he had taken. "he could not be prevailed on, even after we had done all he required, to soften any one of his acts so far as to give it the appearance of his having advanced one step to meet us. that this step, or rather the appearance of having taken it, might save our reputation was regarded as dust in the balance. even now, after our solemn & repeated assertions that our discrimination between the belligerents is founded altogether on a first advance of france--on a decisive & unequivocal repeal of all her obnoxious decrees; after we have engaged in a war of the most calamitous character, avowedly, because france had repealed those decrees, the emperor scorns to countenance the assertion or to leave it uncontradicted. "he avers to ourselves, to our selected enemy, & to the world, that, whatever pretexts we may assign for our conduct, he has in fact ceded nothing, he has made no advance, he stands on his original ground & we have marched up to it. we have submitted, completely submitted; & he will not leave us the poor consolation of concealing that submission from ourselves. but not even our submission has obtained relief. his cruizers still continue to capture, sink, burn & destroy. "i cannot contemplate this subject without excessive mortification as well at the contempt with which we are treated as at the infatuation of my countrymen. it is not however for me to indulge these feelings though i cannot so entirely suppress them as not sometimes though rarely to allow them a place in a private letter." marshall assures smith that he has "read with attention and approbation" the paper sent him and will see to its "republication."[ ] from reading marshall's letter without a knowledge of the facts, one could not possibly infer that america ever had been wronged by the power with which we were then at war. all the strength of his logical and analytical mind is brought to bear upon the date and motives of napoleon's last decree. he wrote in the tone and style, and with the controversial ability of his state papers, when at the head of the adams cabinet. but had the british foreign secretary guided his pen, his indictment of france and america could not have been more unsparing. his letter to smith was a call to peace advocates and british partisans to combine to end the war by overthrowing the administration. this unfortunate letter was written during the long period between the adjournment of the supreme court in march, , and its next session in february of the following year. marshall's sentiments are in sharp contrast with those of joseph story, whose letters, written from his massachusetts home, strongly condemn those who were openly opposing the war. "the present," he writes, "was the last occasion which patriotism ought to have sought to create divisions."[ ] apparently the administration did not know of marshall's real feelings. immediately after the declaration of war, monroe, who succeeded smith as secretary of state, had sent his old personal friend, the chief justice, some documents relating to the war. if marshall had been uninformed as to the causes that drove the united states to take militant action, these papers supplied that information. in acknowledging receipt of them, he wrote monroe: "on my return to day from my farm where i pass a considerable portion of my time in _laborious relaxation_, i found a copy of the message of the president of the ^{st} inst accompanied by the report of the committee of foreign relations & the declaration of war against great britain, under cover from you. "permit me to subjoin to my thanks for this mark of your attention my fervent wish that this momentous measure may, in its operation on the interest & honor of our country, disappoint only its enemies. whether my prayer be heard or not i shall remain with respectful esteem," etc.[ ] cold as this letter was, and capable as it was of double interpretation, to the men sorely pressed by the immediate exigencies of combat, it gave no inkling that the chief justice of the united states was at that very moment not only in close sympathy with the peace party, but was actually encouraging that party in its efforts to end the war.[ ] just at this time, marshall must have longed for seclusion, and, by a lucky chance, it was afforded him. one of the earliest and most beneficial effects of the non-importation, embargo, and non-intercourse laws that preceded the war, was the heavily increased migration from the seaboard states to the territories beyond the alleghanies. the dramatic story of burr's adventures and designs had reached every ear and had turned toward the western country the eyes of the poor, the adventurous, the aspiring; already thousands of settlers were taking up the new lands over the mountains. thus came a practical consideration of improved means of travel and transportation. fresh interest in the use of waterways was given by fulton's invention, which seized upon the imagination of men. the possibilities of steam navigation were in the minds of all who observed the expansion of the country and the growth of domestic commerce. before the outbreak of war, the legislature of virginia passed an act appointing commissioners "for the purpose of viewing certain rivers within this commonwealth,"[ ] and marshall was made the head of this body of investigators. nothing could have pleased him more. it was practical work on a matter that interested him profoundly, and the renewal of a subject which he had entertained since his young manhood.[ ] this tour of observation promised to be full of variety and adventure, tinged with danger, into forests, over mountains, and along streams and rivers not yet thoroughly explored. for a short time marshall would again live over the days of his boyhood. most inviting of all, he would get far away from talk or thought of the detested war. whether the presidential scheming in his behalf bore fruit or withered, his absence in the wilderness was an ideal preparation to meet either outcome. in his fifty-seventh year marshall set out at the head of the expedition, and a thorough piece of work he did. with chain and spirit level the route was carefully surveyed from lynchburg to the ohio. sometimes progress was made slowly and with the utmost labor. in places the scenes were "awful and discouraging." the elaborate report which the commission submitted to the legislature was written by marshall. it reads, says the surveyor of this division of the chesapeake and ohio railway,[ ] "as an account of that survey of , when i pulled a chain down the rugged banks of new river." practicable sections were accurately pointed out and the methods by which they could best be utilized were recommended with particular care. marshall's report is alive with far-seeing and statesmanlike suggestions. he thinks, in , that steamboats can be run successfully on the new river, but fears that the expense will be too great. the velocity of the current gives him some anxiety, but "the currents of the hudson, of the mohawk, and of the mississippi, are very strong; and ... a practice so entirely novel as the use of steam in navigation, will probably receive great improvement." the expense of the undertaking must, he says, depend on the use to be made of the route. should the intention be only to assist the local traffic of the "upper country down the james river," the expense would not be great. but, "if the views of the legislature shall extend to a free commercial intercourse with the western states," the route must compete with others then existing "or that may be opened." in that case "no improvement ought to be undertaken but with a determination to make it complete and effectual." if this were done, the commerce of kentucky, ohio, and even a part of southwestern pennsylvania would pour through virginia to the atlantic states. this was a rich prize which other states were exerting themselves to capture. moreover, such "commercial intercourse" would bind virginia to the growing west by "strong ties" of "friendly sentiments," and these were above price. "in that mysterious future which is in reserve, and is yet hidden from us, events may occur to render" such a community of interest and mutual regard "too valuable to be estimated in dollars and cents." marshall pictures the growth of the west, "that extensive and fertile country ... increasing in wealth and population with a rapidity which baffles calculation." not only would virginia profit by opening a great trade route to the west, but the nation would be vastly benefited. "every measure which tends to cement more closely the union of the eastern with the western states" would be invaluable to the whole country. the military uses of "this central channel of communication" were highly important: "for the want of it, in the course of the last autumn, government was reduced to the necessity of transporting arms in waggons from richmond to the falls of the great kanawha," and "a similar necessity may often occur."[ ] when marshall returned to richmond, he found the country depressed and in turmoil. the war had begun dismally for the americans. our want of military equipment and training was incredible and assured those disasters that quickly fell upon us. the federalist opposition to the war grew ever bolder, ever more bitter. the massachusetts house of representatives issued an "address" to the people, urging the organization of a "_peace party_," adjuring "loud and deep ... disapprobation of this war," and demanding that nobody enlist in the army.[ ] pamphlets were widely circulated, abusing the american government and upholding the british cause. the ablest of these, "mr. madison's war," was by john lowell of boston. the president, he said, "impelled" congress to declare an "offensive" war against great britain. madison was a member of "the _french_ party." british impressment was the pursuance of a sound policy; the british doctrine--once a british subject, always a british subject--was unassailable. the orders in council were just; the execution of them "moderation" itself. on every point, in short, the british government was right; the french, diabolical; the american, contemptible and wrong. how trivial america's complaints, even if there was a real basis for them, in view of great britain's unselfish struggle against "the gigantic dominion of france." if that power, "swayed" by that satanic genius, napoleon, should win, would she not take nova scotia, canada, louisiana, the antilles, florida, south america? after these conquests, would not the united states, "the only remaining republic," be conquered. most probably. what then ought america to do?" in war offensive and unjust, the citizens are not only obliged not to take part, but by the laws of god, and of civil society, they are bound to abstain." what were the rights of citizens in war-time? to oppose the war by tongue and pen, if they thought the war to be wrong, and to refuse to serve if called "contrary to the constitution."[ ] such was the federalism of - , such the arguments that would have been urged for the election of marshall had he been chosen as the peace candidate. but the peace republicans of new york nominated the able, cunning, and politically corrupt de witt clinton; and this man, who had assured the federalists that he favored an "honourable peace" with england,[ ] was endorsed by a federalist caucus as the anti-war standard-bearer,[ ] though not without a swirl of acrimony and dissension. but for the immense efforts of clinton to secure the nomination, and the desire of the federalists and all conservatives that marshall should continue as chief justice,[ ] it is possible that he might have been named as the opponent of madison in the presidential contest of . "i am far enough from desiring clinton for president of the united states," wrote pickering in the preceding july; "i would infinitely prefer another virginian--if judge marshall could be the man."[ ] marshall surely would have done better than clinton, who, however, carried new york, new jersey, delaware, maryland, and all the new england states except vermont. the mercantile classes would have rallied to marshall's standard more enthusiastically than to clinton's. the lawyers generally would have worked hard for him. the federalists, who accepted clinton with repugnance, would have exerted themselves to the utmost for marshall, the ideal representative of federalism. he was personally very strong in north carolina; the capture of pennsylvania might have been possible;[ ] vermont might have given him her votes. the federalist resistance to the war grew more determined as the months wore on. throughout new england the men of wealth, nearly all of whom were federalists, declined to subscribe to the government loans.[ ] the governors of the new england states refused to aid the national government with the militia.[ ] in congress the federalists were obstructing war measures and embarrassing the government in every way their ingenuity could devise. one method was to force the administration to tell the truth about napoleon's pretended revocation of his obnoxious decree. a resolution asking the president to inform the house "when, by whom, and in what manner, the first intelligence was given to this government" of the st. cloud decree, was offered by daniel webster,[ ] who had been elected to congress from new hampshire as the fiercest youthful antagonist of the war in his state.[ ] the republicans agreed, and webster's resolution was passed by a vote of yeas to only nays.[ ] in compliance the president transmitted a long report. it was signed by the secretary of state, james monroe, but bears the imprint of madison's lucid mind. the report states the facts upon which congress was compelled to declare war and demonstrates that the decree of st. cloud had nothing to do with our militant action, since it was not received until more than a month after our declaration of war. then follow several clear and brilliant paragraphs setting forth the american view of the causes and purposes of the war.[ ] timothy pickering was not now in the senate. the republican success in massachusetts at the state election of had given the legislature to that party,[ ] and the pugnacious federalist leader was left at home. there he raged and intrigued and wrote reams of letters. monroe's report lent new fury to his always burning wrath, and he sent that document, with his malediction upon it, to john marshall at richmond. in reply the chief justice said that the report "contains a labored apology for france but none for ourselves. it furnishes no reason for our tame unmurmuring acquiescence under the double insult of withholding this paper [decree of st. cloud] from us & declaring in our face that it has been put in our possession. "the report is silent on another subject of still deeper interest. it leaves unnoticed the fact that the berlin & milan decrees were certainly not repealed by that insidious decree of april since it had never been communicated to the french courts and cruizers, & since their cruizers had at a period subsequent to the pretended date of that decree received orders to continue to execute the offensive decrees on american vessels. "the report manifests no sensibility at the disgraceful circumstances which tend strongly to prove that this paper was fabricated to satisfy the importunities of mr. barlow, was antedated to suit french purposes; nor at the contempt manifested for the feelings of americans and their government, by not deigning so to antedate it as to save the credit of our administration by giving some plausibility to their assertion that the repeal had taken place on the ^{st} of nov^r--but this is a subject with which i dare not trust myself." the plight of the american land forces, the splendid and unrivaled victories of the american navy, apparently concerned marshall not at all. his eyes were turned toward europe; his ears strained to catch the sounds from foreign battle-fields. "i look with anxious solicitude--with mingled hope & fear," he continues, "to the great events which are taking place in the north of germany. it appears probable that a great battle will be fought on or near the elbe & never had the world more at stake than will probably depend on that battle. "your opinions had led me to hope that there was some prospect for a particular peace for ourselves. my own judgement, could i trust it, would tell me that peace or war will be determined by the events in europe."[ ] [illustration: tim pickering] the "great battle" which marshall foresaw had been fought nearly eight weeks before his letter was written. napoleon had been crushingly defeated at leipzig in october, , and the british, prussian, and other armies which great britain had combined against him, were already invading france. when, later, the news of this arrived in america, it was hailed by the federalists with extravagant rejoicings.[ ] secession, if the war were continued, now became the purpose of the more determined federalist leaders. it was hopeless to keep up the struggle, they said. the administration had precipitated hostilities without reason or right, without conscience or sense.[ ] the people never had favored this wretched conflict; and now the tyrannical government, failing to secure volunteers, had resorted to conscription--an "infamous" expedient resorted to in brutal violation of the constitution.[ ] so came the hartford convention which the cool wisdom of george cabot saved from proclaiming secession.[ ] of the two pretenses for war against great britain, the federalists alleged that one had been removed even before we declared war, and that only the false and shallow excuse of british impressment of american seamen remained. madison and monroe recognized this as the one great remaining issue, and an administration pamphlet was published asserting the reason and justice of the american position. this position was that men of every country have a natural right to remove to another land and there become citizens or subjects, entitled to the protection of the government of the nation of their adoption. the british principle, on the contrary, was that british subjects could never thus expatriate themselves, and that, if they did so, the british government could seize them wherever found, and by force compel them to serve the empire in any manner the government chose to direct. monroe's brother-in-law, george hay, still the united states attorney for the district of virginia, was selected to write the exposition of the american view. it seems probable that his manuscript was carefully revised by madison and monroe, and perhaps by jefferson.[ ] certainly hay stated with singular precision the views of the great republican triumvirate. the pamphlet was entitled "a treatise on expatriation." he began: "i hold in utter reprobation the idea that a man is bound by an obligation, permanent and unalterable, to the government of a country which he has abandoned and his allegiance to which he has solemnly adjured."[ ] immediately john lowell answered.[ ] nothing keener and more spirited ever came from the pen of that gifted man. "the presidential pamphleteer," as lowell called hay, ignored the law. the maxim, once a subject always a subject, was as true of america as of britain. had not ellsworth, when chief justice, so decided in the famous case of isaac williams?[ ] yet hay sneered at the opinion of that distinguished jurist.[ ] pickering joyfully dispatched lowell's brochure to marshall, who lost not a moment in writing of his admiration. "i had yesterday the pleasure of receiving your letter of the th accompanying m^r lowell's very masterly review of the treatise on expatriation. i have read it with great pleasure, & thank you very sincerely for this mark of your recollection. "could i have ever entertained doubts on the subject, this review would certainly have removed them. mingled with much pungent raillery is a solidity of argument and an array of authority which in my judgement is entirely conclusive. but in truth it is a question upon which i never entertained a scintilla of doubt; and have never yet heard an argument which ought to excite a doubt in any sound and reflecting mind. it will be to every thinking american a most afflicting circumstance, should our government on a principle so completely rejected by the world proceed to the execution of unfortunate, of honorable, and of innocent men."[ ] astonishing and repellent as these words now appear, they expressed the views of every federalist lawyer in america. the doctrine of perpetual allegiance was indeed then held and practiced by every government except our own,[ ] nor was it rejected by the united states until the administration became republican. marshall, announcing the opinion of the supreme court in , had held that an alien could take lands in new jersey because he had lived in that state when, in , the legislature passed a law making all residents citizens.[ ] thus he had declared that an american citizen did not cease to be such because he had become the subject of a foreign power. four years later, in another opinion involving expatriation, he had stated the law to be that a british subject, born in england before , could not take, by devise, lands in maryland, the statute of that state forbidding aliens from thus acquiring property there.[ ] in both these cases, however, marshall refrained from expressly declaring in terms against the american doctrine. even as late as the chief justice undoubtedly retained his opinion that the right of expatriation did not exist,[ ] although he did not say so in express terms. but in marshall's letter on lowell's pamphlet he flatly avows his belief in the principle of perpetual allegiance, any direct expression on which he so carefully avoided when deciding cases involving it. thus the record shows that john marshall was as bitterly opposed to the war of as was pickering or otis or lowell. so entirely had he become one of "the aristocracy of talents of reputation, & of property," as plumer, in , had so accurately styled the class of which he himself was then a member,[ ] that marshall looked upon all but one subject then before the people with the eyes of confirmed reaction. that subject was nationalism. to that supreme cause he was devoted with all the passion of his deep and powerful nature; and in the service of that cause he was soon to do much more than he had already performed. our second war with great britain accomplished none of the tangible and immediate objects for which it was fought. the british refused to abandon "the right" of impressment; or to disclaim the british sovereignty of the oceans whenever they chose to assert it; or to pay a farthing for their spoliation of american commerce. on the other hand, the british did not secure one of their demands.[ ] the peace treaty did little more than to end hostilities. but the war achieved an inestimable good--it de-europeanized america. it put an end to our thinking and feeling only in european terms and emotions. it developed the spirit of the new america, born since our political independence had been achieved, and now for the first time emancipated from the intellectual and spiritual sovereignty of the old world. it had revealed to this purely american generation a consciousness of its own strength; it could exult in the fact that at last america had dared to fight. the american navy, ship for ship, officer for officer, man for man, had proved itself superior to the british navy, the very name of which had hitherto been mentioned only in terror or admiration of its unconquerable might. in the end, raw and untrained american troops had beaten british regulars. american riflemen of the west and south had overwhelmed the flower of all the armies of europe. an american frontier officer, andrew jackson, had easily outwitted some of great britain's ablest and most experienced professional generals. in short, on land and sea america had stood up to, had really beaten, the tremendous power that had overthrown the mighty napoleon. such were the feelings and thoughts of that young america which had come into being since john marshall had put aside his revolutionary uniform and arms. and in terms very much like those of the foregoing paragraph the american people generally expressed their sentiments. moreover, the embargo, the non-intercourse and non-importation acts, the british blockades, the war itself, had revolutionized the country economically and socially. american manufacturing was firmly established. land travel and land traffic grew to proportions never before imagined, never before desired. the people of distant sections became acquainted. the eyes of all americans, except those of the aged or ageing, were turned from across the atlantic ocean toward the boundless, the alluring west--their thoughts diverted from the commotions of europe and the historic antagonism of foreign nations, to the economic conquest of a limitless and virgin empire and to the development of incalculable and untouched resources, all american and all their own. the migration to the west, which had been increasing for years, now became almost a folk movement. the eastern states were drained of their young men and women. some towns were almost depopulated.[ ] and these hosts of settlers carried into wilderness and prairie a spirit and pride that had not been seen or felt in america since the time of the revolution. but their high hopes were to be quickly turned into despair, their pride into ashes; for a condition was speedily to develop that would engulf them in disaster. it was this situation which was to call forth some of the greatest of marshall's constitutional opinions. this forbidding future, however, was foreseen by none of that vast throng of home-seekers crowding every route to the "western country," in the year of . only the rosiest dreams were theirs and the spirited consciousness that they were americans, able to accomplish all things, even the impossible. it was then a new world in which john marshall found himself, when, in his sixtieth year, the war which he so abhorred came to an end. a state of things surrounded him little to his liking and yet soon to force from him the exercise of the noblest judicial statesmanship in american history. from the extreme independence of this new period, the intense and sudden nationalism of the war, the ideas of local sovereignty rekindled by the new england federalists at the dying fires that jefferson and the republicans had lighted in , and from the play of conflicting interests came a reaction against nationalism which it was marshall's high mission to check and to turn into channels of national power, national safety, and national well-being. footnotes: [ ] "the navy of britain is our shield." (pickering: _open letter_ [feb. , ] _to governor james sullivan_, ; _infra_, , - , - , - .) [ ] _diary and letters of gouverneur morris_: morris, ii, . [ ] jefferson to d'ivernois, feb. , , _works of thomas jefferson_: ford, viii, . [ ] jefferson to short, jan. , , _ib._ vii, ; same to mason, feb. , , _ib._ vi, . [ ] see vol. ii, , of this work. [ ] _ib._ - . [ ] the fairfax transaction. [ ] the phrase used by the federalists to designate the opponents of democracy. [ ] see vol. ii, - , - , - , - , of this work. [ ] ames to dwight, oct. , , _works of fisher ames_: ames, i, ; and see ames to gore, nov. , , _ib._ ; also ames to quincy, feb. , , _ib._ . [ ] rutledge to otis, july , , morison: _life and letters of harrison gray otis_, i, . [ ] the student should examine the letters of federalists collected in henry adams's _new-england federalism_; those in the _life and correspondence of rufus king_; in lodge's _life and letters of george cabot_; in the _works of fisher ames_ and in morison's _otis_. [ ] see adams: _history of the united states_, iv, . [ ] once in a long while an impartial view was expressed: "i think myself sometimes in an hospital of lunaticks, when i hear some of our politicians eulogizing bonaparte because he humbles the english; & others worshipping the latter, under an idea that they will shelter us, & take us under the shadow of their wings. they would join, rather, to deal us away like cattle." (peters to pickering, feb. , , pickering mss. mass. hist. soc.) [ ] see harrowby's circular, aug. , , _american state papers, foreign relations_, iii, . [ ] see hawkesbury's instructions, aug. , , _ib._ [ ] fox to monroe, april and may , , _ib._ . [ ] the berlin decree, nov. , , _ib._ - . [ ] orders in council, jan. and nov. , , _am. state papers, for. rel._ iii, - ; and see channing: _jeffersonian system_, . [ ] dec. , , _am. state papers, for. rel._ iii, . [ ] adams: _u.s._ v, . [ ] "england's naval power stood at a height never reached before or since by that of any other nation. on every sea her navies rode, not only triumphant, but with none to dispute their sway." (roosevelt: _naval war of _, .) [ ] see report, secretary of state, july , , _am. state papers, for. rel._ iii, - . "these decrees and orders, taken together, want little of amounting to a declaration that every neutral vessel found on the high seas, whatsoever be her cargo, and whatsoever foreign port be that of her departure or destination, shall be deemed lawful prize." (jefferson to congress, special message, march , , _works:_ ford, xi, .) "the only mode by which either of them [the european belligerents] could further annoy the other ... was by inflicting ... the torments of starvation. this the contending parties sought to accomplish by putting an end to all trade with the other nation." (channing: _jeff. system_, .) [ ] theodore roosevelt, who gave this matter very careful study, says that at least , american seamen were impressed. (roosevelt, footnote to .) "hundreds of american citizens had been taken by force from under the american flag, some of whom were already lying beneath the waters off cape trafalgar." (adams: _u. s._ iii, .) see also babcock: _rise of american nationality_, - ; and jefferson to crawford, feb. , , _works_: ford, xi, . [ ] see channing: _jeff. system_, - . the principal works on the war of are, of course, by henry adams and by alfred mahan. but these are very extended. the excellent treatments of that period are the _jeffersonian system_, by edward channing, and _rise of american nationality_, by kendric charles babcock, and _life and letters of harrison gray otis_, by samuel eliot morison. the latter work contains many valuable letters hitherto unpublished. [ ] but see jefferson to madison, aug. , , _works_: ford, x, - ; same to monroe, may , , ib. - ; same to same, oct. , , _ib._ - ; same to lincoln, june , , _ib._ ; also see adams: _u.s._ iii, . while these letters speak of a temporary alliance with great britain, jefferson makes it clear that they are merely diplomatic maneuvers, and that, if an arrangement was made, a heavy price must be paid for america's coöperation. jefferson's letters, in general, display rancorous hostility to great britain. see, for example, jefferson to paine, sept. , , _works_: ford, x, ; same to leib, june , , _ib._ xi, - ; same to meigs, sept. , , _ib._ - ; same to monroe, jan. , , _ib._ . [ ] jefferson to dearborn, july , , _ib._ . [ ] _annals_, th cong. st sess. - ; also see "an act to prohibit the importation of certain goods, wares, and merchandise," chap. , , _laws of the united states_, iv, - . [ ] see vol. iii, - , of this work. [ ] jefferson's proclamation, july , , _works_: ford, x, - ; and _messages and papers of the presidents:_ richardson, i, - . [ ] "this country has never been in such a state of excitement since the battle of lexington." (jefferson to bowdoin, july , , _works_: ford, x, ; same to de nemours, july , , _ib._ .) for jefferson's interpretation of great britain's larger motive for perpetrating the chesapeake crime, see jefferson to paine, sept. , , _ib._ . [ ] adams: _u.s._ iv, . [ ] lowell: _peace without dishonor--war without hope_: by "a yankee farmer," . the author of this pamphlet was the son of one of the new federal judges appointed by adams under the federalist judiciary act of . [ ] see _peace without dishonor--war without hope_, - . [ ] giles to monroe, march , ; anderson: _william branch giles--a study in the politics of virginia, - _, . thomas ritchie, in the richmond enquirer, properly denounced the new england federalist headquarters as a "hot-bed of treason." (_enquirer_, jan. and april , , as quoted by ambler: _thomas ritchie--a study in virginia politics_, .) [ ] adams: _u.s._ iv, - , . [ ] jefferson to leiper, aug. , , _works_: ford, x, - . jefferson tenaciously clung to his prejudice against great britain: "the object of england, long obvious, is to claim the ocean as her domain.... we believe no more in bonaparte's fighting merely for the liberty of the seas, than in great britain's fighting for the liberties of mankind." (jefferson to maury, april , , _ib._ xi, - .) he never failed to accentuate his love for france and his hatred for napoleon. [ ] "during the present paroxysm of the insanity of europe, we have thought it wisest to break off all intercourse with her." (jefferson to armstrong, may , , _ib._ .) [ ] "three alternatives alone are to be chosen from. . embargo. . war. . submission and tribute, &, wonderful to tell, the last will not want advocates." (jefferson to lincoln, nov. , , _ib._ .) [ ] see act of december , (_annals_, th cong. st sess. - ); of january , (_ib._ - ); of march , (_ib._ - ); and of april , (_ib._ - ); treasury circulars of may and may , (_embargo laws_, - , - ); and jefferson's letter "to the governours of orleans, georgia, south carolina, massachusetts and new hampshire," may , (_ib._ - ). joseph hopkinson sarcastically wrote: "bless the embargo--thrice bless the presidents distribution proclamation, by which his minions are to judge of the appetites of his subjects, how much food they may reasonably consume, and who shall supply them ... whether under the proclamation and embargo system, a child may be lawfully born without a clearing out at the custom house." (hopkinson to pickering, may , , pickering mss. mass. hist. soc.) [ ] professor channing says that "the orders in council had been passed originally to give english ship-owners a chance to regain some of their lost business." (channing: _jeff. system_, .) [ ] indeed, napoleon, as soon as he learned of the american embargo laws, ordered the seizure of all american ships entering french ports because their captains or owners had disobeyed these american statutes and, therefore, surely were aiding the enemy. (armstrong to secretary of state, april , postscript of april , , _am. state papers, for. rel._ iii, .) [ ] morison: _otis_, ii, - ; see also channing: _jeff. system_, . [ ] _annals_, th cong. d sess. . the intensity of the interest in the embargo is illustrated by giles's statement in his reply to hillhouse that it "almost ... banish[ed] every other topic of conversation." (_ib._ .) [ ] four years earlier, pickering had plotted the secession of new england and enlisted the support of the british minister to accomplish it. (see vol. iii, chap. vii, of this work.) his wife was an englishwoman, the daughter of an officer of the british navy. (pickering and upham: _life of timothy pickering_, i, ; and see pickering to his wife, jan. , , _ib._ iv, .) his nephew had been consul-general at london under the federalist administrations and was at this time a merchant in that city. (pickering to rose, march , , _new-england federalism:_ adams, .) pickering had been, and still was, carrying on with george rose, recently british minister to the united states, a correspondence all but treasonable. (morison: _otis_, ii, .) [ ] _annals_, th cong. d sess. , - . [ ] _annals_, th cong. d sess. . [ ] _ib._ - . [ ] marshall to pickering, dec. , , pickering mss. mass. hist. soc. [ ] see vol. ii, - , of this work. [ ] morison: _otis_, ii, - . [ ] "the tories of boston openly threaten insurrection." (jefferson to dearborn, aug. , , _works_: ford, xi, .) and see morison: _otis_, ii, ; _life and correspondence of rufus king_: king, v, ; also see otis to quincy, dec. , , morison: _otis_, ii, . [ ] monroe to taylor, jan. , , _branch historical papers_, june, , . [ ] adams to rush, july , , _old family letters_, - . [ ] _annals_, th cong. d sess. iii, - . [ ] morison: _otis_, ii, . these resolutions denounced "'all those who shall assist in enforcing on others the arbitrary & unconstitutional provisions of this [force act]' ... as 'enemies to the constitution of the united states and of this state, and hostile to the liberties of the people.'" (boston town records, - , as quoted in _ib._; and see mcmaster: _history of the people of the united states_, iii, .) [ ] mcmaster, iii, . [ ] mcmaster, iii, - ; and see morison: _otis_, ii, . the federalist view was that the "force act" and other extreme portions of the embargo laws were "so violently and palpably unconstitutional, as to render a reference to the judiciary absurd"; and that it was "the inherent right of the people to resist measures fundamentally inconsistent with the principles of just liberty and the social compact." (hare to otis, feb. , , morison: _otis_, ii, .) [ ] mcmaster, iii, - . [ ] morison: _otis_, ii, , . [ ] hanson to pickering, jan. , , n_.e. federalism_: adams, . [ ] humphrey marshall to pickering, march , , pickering mss. mass. hist. soc. [ ] see vol. iii, chap. x, of this work. [ ] cranch, . [ ] _ib._ . [ ] cranch, . [ ] cranch, , . (italics the author's.) [ ] the legislature of pennsylvania adopted a resolution, april , , proposing an amendment to the national constitution for the establishment of an "impartial tribunal" to decide upon controversies between states and the nation. (_state documents on federal relations_: ames, - .) in reply virginia insisted that the supreme court, "selected from those ... who are most celebrated for virtue and legal learning," was the proper tribunal to decide such cases. (_ib._ - .) this nationalist position virginia reversed within a decade in protest against marshall's nationalist opinions. virginia's nationalist resolution of was read by pinkney in his argument of cohens _vs._ virginia. (see _infra_, chap. vi.) [ ] see madison to snyder, april , , _annals_, th cong. d sess. ; also mcmaster, v, - . [ ] _annals_, th cong. d sess. - . [ ] erskine to smith, april and , , _am. state papers, for. rel._ iii, . [ ] adams: _u.s._ v, - ; see also mcmaster, iii, . [ ] adams: _u.s._ v, - , . [ ] proclamation of aug. , , _am. state papers, for. rel._ iii, . [ ] tyler: _letters and times of the tylers_, i, . for an expression by napoleon on this subject, see adams: _u.s._ v, . [ ] see vol. ii, - , of this work. [ ] "the appointment of jackson and the instructions given to him might well have justified a declaration of war against great britain the moment they were known." (channing: _jeff. system_, .) [ ] circular, nov. , , _am. state papers, for. rel._ iii, ; _annals_, th cong. d sess. . [ ] canning to pinkney, sept. , , _am. state papers, for. rel._ iii, - . [ ] story to white, jan. , , _life and letters of joseph story_: story, i, - . there were two letters from canning to pinkney, both dated sept. , . story probably refers to one printed in the _columbian centinel_, boston, jan. , . "it seems as if in new england the federalists were forgetful of all the motives for union & were ready to destroy the fabric which has been raised by the wisdom of our fathers. have they altogether lost the memory of washington's farewell address?... the riotous proceedings in some towns ... no doubt ... are occasioned by the instigation of men, who keep behind the curtain & yet govern the wires of the puppet shew." (story to his brother, jan. , , story mss. mass. hist. soc.) "in new england, and even in new york, there appears a spirit hostile to the existence of our own government." (plumer to gilman, jan. , , plumer: _life of william plumer_, .) [ ] adams: _u.s._ v, . [ ] _annals_, th cong. d sess. . [ ] _ib._ . the resolution was passed over the strenuous resistance of the federalists. [ ] probably that of madison, july , , _annals_, th cong. d sess. . [ ] marshall to quincy, april , , quincy: _life of josiah quincy_, . [ ] tyler to jefferson, may , , tyler: _tyler_, i, ; and see next chapter. [ ] adams: _u.s._ v, - ; and see morison: _otis_, ii, - . [ ] turreau, then the french minister at washington, thus reported to his government: "to-day not only is the separation of new england openly talked about, but the people of those five states wish for this separation, pronounce it, openly prepare it, will carry it out under british protection"; and he suggests that "perhaps the moment has come for forming a party in favor of france in the central and southern states, whenever those of the north, having given themselves a separate government under the support of great britain, may threaten the independence of the rest." (turreau to champagny, april , , as quoted in adams: _u.s._ v, .) [ ] for account of jackson's reception in boston and the effects of it, see adams: _u.s._ - , and morison: _otis_, - . [ ] on the other hand, jefferson, out of his bottomless prejudice against great britain, drew venomous abuse of the whole british nation: "what is to restore order and safety on the ocean?" he wrote; "the death of george iii? not at all. he is only stupid;... his ministers ... ephemeral. but his nation is permanent, and it is that which is the tyrant of the ocean. the principle that force is right, is become the principle of the nation itself. they would not permit an honest minister, were accident to bring such an one into power, to relax their system of lawless piracy." (jefferson to rodney, feb. , , _works_: ford, xi, - .) [ ] champagny, duke de cadore, to armstrong, aug. , (_am._ _state papers, for. rel._ iii, - ), and proclamation, nov. , (_ib._ ); and see adams: _u.s._ v, - . [ ] adams: _u.s._ v, . [ ] marshall to pickering, feb. , , pickering mss. mass. hist. soc. [ ] _annals_, th cong. d sess. . daniel webster was also emphatically opposed to the admission of new states: "put in a solemn, decided, and spirited protest against making new states out of new territories. affirm, in direct terms, that new hampshire has never agreed to favor political connexions of such intimate nature, with any people, out of the limits of the u.s. as they existed at the time of the compact." (webster to his brother, june , , _letters of daniel webster_: van tyne, .) [ ] _annals_, th cong. d sess. . [ ] _ib._ st and d sess. - . [ ] _annals_, th cong. st sess. ; also see adams: _u.s._ v, - . [ ] adams: _u.s._ v, . [ ] richardson, i, - ; _am. state papers, for. rel._ iii, - . [ ] _annals_, th cong. st sess. . the federalists who voted for war were: joseph kent of maryland, james morgan of new jersey, and william m. richardson of massachusetts. professor channing thus states the american grievances: "inciting the indians to rebellion, impressing american seamen and making them serve on british war-ships, closing the ports of europe to american commerce, these were the counts in the indictment against the people and government of great britain." (channing: _jeff. system_, .) see also _ib._ , and jefferson's brilliant statement of the causes of the war, jefferson to logan, oct. , , _works_: ford, xi, - . "the united states," says henry adams, "had a superfluity of only too good causes for war with great britain." (adams: _life of albert gallatin_, .) adams emphasizes this: "the united states had the right to make war on england with or without notice, either for her past spoliations, her actual blockades, her orders in council other than blockades, her rule of , her impressments, or her attack on the 'chesapeake,' not yet redressed,--possibly also for other reasons less notorious." (adams: _u.s._ v, .) and see roosevelt, chaps, i and ii. [ ] _annals_, th cong. st sess. - . [ ] salem _gazette_, july , , as quoted in morison: _otis_, i, . [ ] story to williams, aug. , , story, i, . [ ] pickering to pennington, july , , _n.e. federalism_: adams, . [ ] of course the national courts were attacked: "attempts ... are made ... to break down the judiciary of the united states through the newspapers, and mean and miserable insinuations are made to weaken the authority of its judgments." (story to williams, aug. , , story, i, .) and again: "conspirators, and traitors are enabled to carry on their purposes almost without check." (same to same, may , , _ib._ .) story was lamenting that the national courts had no common-law jurisdiction. some months earlier he had implored nathaniel williams, representative in congress from story's district, to "induce congress to give the judicial courts of the united states power to punish all crimes ... against the government.... do not suffer conspiracies to destroy the union." (same to same, oct. , , _ib._ .) jefferson thought the people were loyal: "when the questions of separation and rebellion shall be nakedly proposed ... the gores and the pickerings will find their levees crowded with silk stocking gentry, but no yeomanry." (jefferson to gerry, june , , _works_: ford, xi, .) [ ] stoddert to mchenry, july , , steiner: _life and correspondence of james mchenry_, - . [ ] "to the citizens of the united states," in the _spirit of seventy-six_, july , . [ ] stoddert refers to this person as "jo davies." by some this has been thought to refer to marshall's brother-in-law, "jo" daveiss of kentucky. but the latter was killed in the battle of tippecanoe, november , . while the identity of stoddert's agent cannot be established with certainty, he probably was one john davis of salisbury, england, as described in the text. "jo" was then used for john as much as for joseph; and davis was frequently spelled "davies." a john or "jo" davis or davies, an englishman, was a very busy person in america during the first decade of the nineteenth century. (see loshe: _early american novel_, - .) naturally he would have been against the war of , and he was just the sort of person that an impracticable man like stoddert would have chosen for such a mission. [ ] stoddert to mchenry, july , , steiner, . [ ] see king, v, . [ ] adams: _u.s._ v, - . [ ] smith: _an address to the people of the united states_, - . [ ] marshall to smith, july , , dreer mss. "american lawyers," pa. hist. soc. [ ] _am. state papers, for. rel._ iii, ; and see charming: _u.s._ iv, . [ ] see vol. ii, - , - , of this work. [ ] marshall to smith, july , , dreer mss. "american lawyers," pa. hist. soc. a single quotation from the letters of southern federalists will show how accurately marshall interpreted federalist feeling during the war of : "heaven grant that ... our own country may not be found ultimately, a solitary friend of this great robber of nations." (tallmadge to mchenry, may , , steiner, .) the war had been in progress more than ten months when these words were written. [ ] story to williams, oct. , , story, i, . [ ] marshall to monroe, june , , monroe mss. lib. cong. [ ] marshall, however, was a member of the "vigilance committee" of richmond, and took an important part in its activities. (_virginia magazine of history and biography_, vii, - .) [ ] _report of the commissioners appointed to view certain rivers within the commonwealth of virginia_, . [ ] a practicable route for travel and transportation between virginia and the regions across the mountains had been a favorite project of washington. the potomac and james river company, of which marshall when a young lawyer had become a stockholder (vol. i, , of this work), was organized partly in furtherance of this project. the idea had remained active in the minds of public men in virginia and was, perhaps, the one subject upon which they substantially agreed. [ ] much of the course selected by marshall was adopted in the building of the chesapeake and ohio railway. in , collis p. huntington made a trip of investigation over part of marshall's route. (nelson: _address--the chesapeake and ohio railway_, .) [ ] _report of the commissioners appointed to view certain rivers within the commonwealth of virginia_, - . [ ] niles: _weekly register_, ii, . [ ] lowell: _mr. madison's war_: by "a new england farmer." a still better illustration of federalist hostility to the war and the government is found in a letter of ezekiel webster to his brother daniel: "let gamblers be made to contribute to the support of this war, which was declared by men of no better principles than themselves." (ezekiel webster to daniel webster, oct. , , van tyne, .) webster here refers to a war tax on playing-cards. [ ] harper to lynn, sept. , , steiner, . [ ] see mcmaster, iv, - . [ ] morison: _otis_, i, . [ ] pickering to pennington, july , , _n.e. federalism_: adams, . [ ] the vote of pennsylvania, with those cast for clinton, would have elected marshall. [ ] babcock, ; and see dewey: _financial history of the united states_, . [ ] for an excellent statement of the conduct of the federalists at this time see morison: _otis_, ii, - . "the militia of massachusetts, seventy thousand in enrolment, well-drilled, and well-equipped, was definitely withdrawn from the service of the united states in september, ." (babcock, .) connecticut did the same thing. (_ib._ .) [ ] _annals_, th cong. st sess. . [ ] see mcmaster, iv, - . [ ] _annals_, th cong. st sess. [ ] _am. state papers, for. rel._ iii, - . [ ] the republican victory was caused by the violent british partisanship of the federalist leaders. in spite of the distress the people suffered from the embargo, they could not, for the moment, tolerate federalist opposition to their own country. (see adams: _u.s._ v, .) [ ] marshall to pickering, dec. , , pickering mss. mass. hist soc. [ ] morison: _otis_, ii, - . [ ] "curse this government! i would march at days notice for washington ... and i would swear upon the _altar_ never to return till madison was buried under the ruins of the capitol." (herbert to webster, april , , van tyne, .) [ ] the federalists frantically opposed conscription. daniel webster, especially, denounced it. "is this [conscription] ... consistent with the character of a free government?... no, sir.... the constitution is libelled, foully libelled. the people of this country have not established ... such a fabric of despotism.... "where is it written in the constitution ... that you may take children from their parents ... & compel them to fight the battles of any war, in which the folly or the wickedness of government may engage it?... such an abominable doctrine has no foundation in the constitution." conscription, webster said, was a gambling device to throw the dice for blood; and it was a "horrible lottery." "may god, in his compassion, shield me from ... the enormity of this guilt." (see webster's speech on the conscription bill delivered in the house of representatives, december , , van tyne, - ; see also curtis: _life of daniel webster_, i, .) webster had foretold what he meant to do: "of course we shall oppose such usurpation." (webster to his brother, oct. , , van tyne, .) again: "the conscription has not come up--if it does it will cause a storm such as was never witnessed here" [in washington]. (same to same, nov. , , _ib._ .) [ ] see morison: _otis_, ii, - . pickering feared that cabot's moderation would prevent the hartford convention from taking extreme measures against the government. (see pickering to lowell, nov. , , _n.e. federalism_: adams, .) [ ] some sentences are paraphrases of expressions by jefferson on the same subject. for example: "i hold the right of expatriation to be inherent in every man by the laws of nature, and incapable of being rightfully taken from him even by the united will of every other person in the nation." (jefferson to gallatin, june , , _works_: ford, x, .) again: "our particular and separate grievance is only the impressment of our citizens. we must sacrifice the last dollar and drop of blood to rid us of that badge of slavery." (jefferson to crawford, feb. , , _ib._ xi, - .) this letter was written at monticello the very day that the news of peace reached washington. [ ] hay: _a treatise on expatriation_, . [ ] lowell: _review of 'a treatise on expatriation'_: by "a massachusetts lawyer." [ ] see vol. iii, chap. i, of this work. [ ] see _review of 'a treatise on expatriation_,' . [ ] marshall to pickering, april , , pickering mss. mass. hist. soc. [ ] see channing: _jeff. system_, - . [ ] m'ilvaine _vs._ coxe's lessee, cranch, . [ ] dawson's lessee _vs._ godfrey, cranch, . [ ] case of the santissima trinidad _et al._, brockenbrough, - ; and see wheaton, . [ ] plumer to livermore, march , , plumer mss. lib. cong. [ ] for example, the british "right" of impressment must be formally and plainly acknowledged in the treaty; an indian dominion was to be established, and the indian tribes were to be made parties to the settlements; the free navigation of the mississippi was to be guaranteed to british vessels; the right of americans to fish in canadian waters was to be ended. demands far more extreme were made by the british press and public. (see mcmaster, iv, - ; and see especially morison: _otis_, ii, .) [ ] mcmaster, iv, - . chapter ii marshall and story either the office was made for the man or the man for the office. (george s. hillard.) i am in love with his character, positively in love. (joseph story.) in the midst of these gay circles my mind is carried to my own fireside and to my beloved wife. (marshall.) now the man moses was very meek, above all the men which were upon the face of the earth. (numbers xii, .) "it will be difficult to find a character of firmness enough to preserve his independence on the same bench with marshall."[ ] so wrote thomas jefferson one year after he had ceased to be president. he was counseling madison as to the vacancy on the supreme bench and one on the district bench at richmond, in filling both of which he was, for personal reasons, feverishly concerned. we are now to ascend with marshall the mountain peaks of his career. within the decade that followed after the close of our second war with great britain, he performed nearly all of that vast and creative labor, the lasting results of which have given him that distinctive title, the great chief justice. during that period he did more than any other one man ever has done to vitalize the american constitution; and, in the performance of that task, his influence over his associates was unparalleled.[ ] when justices chase and cushing died and their successors gabriel duval[ ] and joseph story were appointed, the majority of the supreme court, for the first time, became republican. yet marshall continued to dominate it as fully as when its members were of his own political faith and views of government.[ ] in the whole history of courts there is no parallel to such supremacy. not without reason was that tribunal looked upon and called "marshall's court." it is interesting to search for the sources of his strange power. these sources are not to be found exclusively in the strength of marshall's intellect, surpassing though it was, nor yet in the mere dominance of his will. joseph story was not greatly inferior to marshall in mind and far above him in accomplishments, while william johnson, the first justice of the supreme court appointed by jefferson, was as determined as marshall and was "strongly imbued with the principles of southern democracy, bold, independent, eccentric, and sometimes harsh."[ ] nor did learning give marshall his commanding influence. john jay and oliver ellsworth were his superiors in that respect; while story so infinitely surpassed him in erudition that, between the two men, there is nothing but contrast. indeed, marshall had no "learning" at all in the academic sense;[ ] we must seek elsewhere for an explanation of his peculiar influence. this explanation is, in great part, furnished by marshall's personality. the manner of man he was, of course, is best revealed by the well-authenticated accounts of his daily life. he spent most of his time at richmond, for the supreme court sat in washington only a few weeks each year. he held circuit court at raleigh as well as at the virginia capital, but the sessions seldom occupied more than a fortnight each. in richmond, then, his characteristics were best known; and so striking were they that time has but little dimmed the memory of them. marshall, the chief justice, continued to neglect his dress and personal appearance as much as he did when, as a lawyer, his shabby attire so often "brought a blush" to the cheeks of his wife,[ ] and his manners were as "lax and lounging" as when jefferson called them proofs of a "profound hypocrisy."[ ] although no man in america was less democratic in his ideas of government, none was more democratic in his contact with other people. to this easy bonhomie was added a sense of humor, always quick to appreciate an amusing situation. when in richmond, marshall often did his own marketing and carried home the purchases he made. the tall, ungainly, negligently clad chief justice, ambling along the street, his arms laden with purchases, was a familiar sight.[ ] he never would hurry, and habitually lingered at the market-place, chatting with everybody, learning the gossip of the town, listening to the political talk that in richmond never ceased, and no doubt thus catching at first hand the drift of public sentiment.[ ] the humblest and poorest man in virginia was not more unpretentious than john marshall. no wag was more eager for a joke. one day, as he loitered on the outskirts of the market, a newcomer in richmond, who had never seen marshall, offered him a small coin to carry home for him a turkey just purchased. marshall accepted, and, with the bird under his arm, trudged behind his employer. the incident sent the city into gales of laughter, and was so in keeping with marshall's ways that it has been retold from one generation to another, and is to-day almost as much alive as ever.[ ] at another time the chief justice was taken for the butcher. he called on a relative's wife who had never met him, and who had not been told of his plain dress and rustic manners. her husband wished to sell a calf and she expected the butcher to call to make the trade. she saw marshall approaching, and judging by his appearance that he was the butcher, she directed the servant to tell him to go to the stable where the animal was awaiting inspection.[ ] it was marshall's custom to go early every morning to a farm which he owned four miles from richmond. for the exercise he usually walked, but, when he wished to take something heavy, he would ride. a stranger coming upon him on the road would have thought him one of the poorer small planters of the vicinity. he was extremely fond of children and, if he met one trudging along the road, he would take the child up on the horse and carry it to its destination. often he was seen riding into richmond from his farm, with one child before and another behind him.[ ] bishop meade met marshall on one of these morning trips, carrying on horseback a bag of clover seed.[ ] on another, he was seen holding on the pommel a jug of whiskey which he was taking out to his farmhands. the cork had come out and he was using his thumb as a stopper.[ ] he was keenly interested in farming, and in was elected president of the richmond society for promotion of agriculture.[ ] the distance from richmond to raleigh was, by road, more than one hundred and seventy miles. except when he went by stage,[ ] as he seldom did, it must have taken a week to make this journey. he traveled in a primitive vehicle called a stick gig, drawn by one horse which he drove himself, seldom taking a servant with him.[ ] making his slow way through the immense stretches of tar pines and sandy fields, the chief justice doubtless thought out the solution of the problems before him and the plain, clear, large statements of his conclusions which, from the bench later, announced not only the law of particular cases, but fundamental policies of the nation. his surroundings at every stage of the trip encouraged just such reflection--the vast stillness, the deep forests, the long hours, broken only by some accident to gig or harness, or interrupted for a short time to feed and rest his horse, and to eat his simple meal. during these trips, marshall would become so abstracted that, apparently, he would forget where he was driving. once, when near the plantation of nathaniel macon in north carolina, he drove over a sapling which became wedged between a wheel and the shaft. one of macon's slaves, working in an adjacent field, saw the predicament, hurried to his assistance, held down the sapling with one hand, and with the other backed the horse until the gig was free. marshall tossed the negro a piece of money and asked him who was his owner. "marse nat. macon," said the slave. "he is an old friend," said marshall; "tell him how you have helped me," giving his name. when the negro told his master, macon said: "that was the great chief justice marshall, the biggest lawyer in the united states." the slave grinned and answered: "marse nat., he may be de bigges' lawyer in de united states, but he ain't got sense enough to back a gig off a saplin'."[ ] at night he would stop at some log tavern on the route, eat with the family and other guests, if any were present, and sit before the fireplace after the meal, talking with all and listening to all like the simple and humble countryman he appeared to be. since the minor part of his time was spent in court, and most of it about richmond, or on the road to and from raleigh, or journeying to his fauquier county plantation and the beloved mountains of his youth where he spent the hottest part of each year, it is doubtful whether any other judge ever maintained such intimate contact with people in the ordinary walks of life as did john marshall. the chief justice always arrived at raleigh stained and battered from travel.[ ] the town had a population of from three hundred to five hundred.[ ] he was wont to stop at a tavern kept by a man named cooke and noted for its want of comfort; but, although the inn got worse year after year, he still frequented it. early one morning an acquaintance saw the chief justice go to the woodpile, gather an armful of wood and return with it to the house. when they met later in the day, the occurrence was recalled. "yes," said marshall, "i suppose it is not convenient for mr. cooke to keep a servant, so i make up my own fires."[ ] the chief justice occupied a small room in which were the following articles: "a bed, ... two split-bottom chairs, a pine table covered with grease and ink, a cracked pitcher and broken bowl." the host ate with his guests and used his fingers instead of fork or knife.[ ] when court adjourned for the day, marshall would play quoits in the street before the tavern "with the public street characters of raleigh," who were lovers of the game.[ ] he was immensely popular in raleigh, his familiar manners and the justice of his decisions appealing with equal force to the bar and people alike. writing at the time of the hearing of the granville case,[ ] john haywood, then state treasurer of north carolina, testifies: "judge marshall ... is greatly respected here, as well on account of his talents and uprightness as for that sociability and ease of manner which render all happy and pleased when in his company."[ ] in spite of his sociability, which tempted him, while in richmond, to visit taverns and the law offices of his friends, marshall spent most of the day in his house or in the big yard adjoining it, for mrs. marshall's affliction increased with time, and the chief justice, whose affection for his wife grew as her illness advanced, kept near her as much as possible. in marshall's grounds and near his house were several great oak and elm trees, beneath which was a spring; to this spot he would take the papers in cases he had to decide and, sitting on a rustic bench under the shade, would write many of those great opinions that have immortalized his name.[ ] mrs. marshall's malady was largely a disease of the nervous system and, at times, it seemingly affected her mind. it was a common thing for the chief justice to get up at any hour of the night and, without putting on his shoes lest his footfalls might further excite his wife, steal downstairs and drive away for blocks some wandering animal--a cow, a pig, a horse--whose sounds had annoyed her.[ ] even upon entering his house during the daytime, marshall would take off his shoes and put on soft slippers in the hall.[ ] she was, of course, unequal to the management of the household. when the domestic arrangements needed overhauling, marshall would induce her to take a long drive with her sister, mrs. edward carrington, or her daughter, mrs. jacquelin b. harvie, over the still and shaded roads of richmond. the carriage out of sight, he would throw off his coat and vest, roll up his shirt-sleeves, twist a bandanna handkerchief about his head, and gathering the servants, lead as well as direct them in dusting the walls and furniture, scrubbing the floors and setting the house in order.[ ] numerous incidents of this kind are well authenticated. to this day marshall's unselfish devotion to his infirm and distracted wife is recalled in richmond. but nobody ever heard the slightest word of complaint from him; nor did any act or expression of countenance so much as indicate impatience. in his letters marshall never fails to admonish his wife, who seldom if ever wrote to him, to care for her health. "yesterday i received jacquelin's letter of the ^{th} informing me that your health was at present much the same as when i left richmond," writes marshall.[ ] "john [marshall's son] passed through this city a day or two past, & although i did not see him i had the pleasure of hearing from mr. washington who saw him ... that you were as well as usual."[ ] in another letter marshall says: "do my dearest polly let me hear from you through someone of those who will be willing to write for you."[ ] again he says: "i am most anxious to know how you do but no body is kind enough to gratify my wishes.... i looked eagerly for a letter to day but no letter came.... you must not fail when you go to chiccahominy [marshall's farm near richmond] ... to carry out blankets enough to keep you comfortable. i am very desirous of hearing what is doing there but as no body is good enough to let me know how you do & what is passing at home i could not expect to hear what is passing at the farm."[ ] indeed, only one letter of marshall's has been discovered which indicates that he had received so much as a line from his wife; and this was when, an old man of seventy-five, he was desperately ill in philadelphia.[ ] nothing, perhaps, better reveals the sweetness of his nature than his cheerful temper and tender devotion under trying domestic conditions.[ ] his "dearest polly" was intensely religious, and marshall profoundly respected this element of her character.[ ] the evidence as to his own views and feelings on the subject of religion, although scanty, is definite. he was a unitarian in belief and therefore never became a member of the episcopal church, to which his parents, wife, children, and all other relatives belonged. but he attended services, bishop meade informs us, not only because "he was a sincere friend of religion," but also because he wished "to set an example." the bishop bears this testimony: "i can never forget how he would prostrate his tall form before the rude low benches, without backs, at coolspring meeting-house,[ ] in the midst of his children and grandchildren and his old neighbors." when in richmond, marshall attended the monumental church where, says bishop meade, "he was much incommoded by the narrowness of the pews.... not finding room enough for his whole body within the pew, he used to take his seat nearest the door of the pew, and, throwing it open, let his legs stretch a little into the aisle."[ ] it is said, however, that his daughter, during her last illness, declared that her father late in life was converted, by reading keith on prophecy, to a belief in the divinity of christ; and that he determined to "apply for admission to the communion of our church ... but died without ever communing."[ ] there is, too, a legend about an astonishing flash of eloquence from marshall--"a streak of vivid lightning"--at a tavern, on the subject of religion.[ ] the impression said to have been made by marshall on this occasion was heightened by his appearance when he arrived at the inn. the shafts of his ancient gig were broken and "held together by withes formed from the bark of a hickory sapling"; he was negligently dressed, his knee buckles loosened.[ ] in the tavern a discussion arose among some young men concerning "the merits of the christian religion." the debate grew warm and lasted "from six o'clock until eleven." no one knew marshall, who sat quietly listening. finally one of the youthful combatants turned to him and said: "well, my old gentleman, what think you of these things?" marshall responded with a "most eloquent and unanswerable appeal." he talked for an hour, answering "every argument urged against" the teachings of jesus. "in the whole lecture there was so much simplicity and energy, pathos and sublimity, that not another word was uttered." the listeners wondered who the old man could be. some thought him a preacher; and great was their surprise when they learned afterwards that he was the chief justice of the united states.[ ] his devotion to his wife illustrates his attitude toward women in general, which was one of exalted reverence and admiration. "he was an enthusiast in regard to the domestic virtues," testifies story. "there was ... a romantic chivalry in his feelings, which, though rarely displayed, except in the circle of his most intimate friends, would there pour out itself with the most touching tenderness." he loved to dwell on the "excellences," "accomplishments," "talents," and "virtues" of women, whom he looked upon as "the friends, the companions, and the equals of man." he tolerated no wit at their expense, no fling, no sarcasm, no reproach. on no phase of marshall's character does story place so much emphasis as on his esteem for women.[ ] harriet martineau, too, bears witness that "he maintained through life and carried to his grave, a reverence for woman as rare in its kind as in its degree."[ ] "i have always believed that national character as well as happiness depends more on the female part of society than is generally imagined," writes marshall in his ripe age to thomas white.[ ] commenting on story's account, in his centennial oration on the first settlement of salem, of the death of lady arbella johnson, marshall expresses his opinion of women thus: "i almost envy the occasion her sufferings and premature death have furnished for bestowing that well-merited eulogy on a sex which so far surpasses ours in all the amiable and attractive virtues of the heart,--in all those qualities which make up the sum of human happiness and transform the domestic fireside into an elysium. i read the passage to my wife who expressed such animated approbation of it as almost to excite fears for that exclusive admiration which husbands claim as their peculiar privilege. present my compliments to m^{rs} story and say for me that a lady receives the highest compliment her husband can pay her when he expresses an exalted opinion of the sex, because the world will believe that it is formed on the model he sees at home."[ ] ten children were born to john marshall and mary ambler, of whom six survived, five boys and one girl.[ ] by only three of these remained at home; jacquelin, twenty-eight years old, james keith, fifteen, and edward, ten years of age. john was in harvard, where marshall sent all his sons except thomas, the eldest, who went to princeton.[ ] the daughter, mary, marshall's favorite child, had married jacquelin b. harvie and lived in richmond not far from marshall's house.[ ] four other children had died early. "you ask," marshall writes story, "if m^{rs} marshall and myself have ever lost a child. we have lost four, three of them bidding fairer for health and life than any that have survived them. one, a daughter about six or seven ... was one of the most fascinating children i ever saw. she was followed within a fortnight by a brother whose death was attended by a circumstance we can never forget. "when the child was supposed to be dying i tore the distracted mother from the bedside. we soon afterwards heard a voice in the room which we considered as indicating the death of the infant. we believed him to be dead. [i went] into the room and found him still breathing. i returned [and] as the pang of his death had been felt by his mother and [i] was confident he must die, i concealed his being alive and prevailed on her to take refuge with her mother who lived the next door across an open square from her. "the child lived two days, during which i was agonized with its condition and with the occasional hope, though the case was desperate, that i might enrapture his mother with the intelligence of his restoration to us. after the event had taken place his mother could not bear to return to the house she had left and remained with her mother a fortnight. "i then addressed to her a letter in verse in which our mutual loss was deplored, our lost children spoken of with the parental feeling which belonged to the occasion, her affection for those which survived was appealed to, and her religious confidence in the wisdom and goodness of providence excited. the letter closed with a pressing invitation to return to me and her children."[ ] all of marshall's sons married, settled on various parts of the fairfax estate, and lived as country gentlemen. thomas was given the old homestead at oak hill, and there the chief justice built for his eldest son the large house adjacent to the old one where he himself had spent a year before joining the army under washington.[ ] to this spot marshall went every year, visiting thomas and his other sons who lived not far apart, seeing old friends, wandering along goose creek, over the mountains, and among the haunts where his first years were spent. here, of course, he was, in bearing and appearance, even less the head of the nation's judiciary than he was in richmond or on the road to raleigh. he was emphatically one of the people among whom he sojourned, familiar, interested, considerate, kindly and sociable to the last degree. not one of his sons but showed more consciousness of his own importance than did john marshall; not a planter of fauquier, warren, and shenandoah counties, no matter how poorly circumstanced, looked and acted less a chief justice of the united states. these characteristics, together with a peculiar generosity, made marshall the most beloved man in northern virginia. once, when going from richmond to fauquier county, he overtook one of his revolutionary comrades. as the two rode on together, talking of their war-time experiences and of their present circumstances, it came out that this now ageing friend of his youth was deeply in debt and about to lose all his possessions. there was, it appeared, a mortgage on his farm which would soon be foreclosed. after the chief justice had left the inn where they both had stopped for refreshments, an envelope was handed to his friend containing marshall's check for the amount of the debt. his old comrade-in-arms quickly mounted his horse, overtook marshall, and insisted upon returning the check. marshall refused to take it back, and the two friends argued the matter, which was finally compromised by marshall's agreeing to take a lien upon the land. but this he never foreclosed.[ ] this anecdote is highly characteristic of marshall. he was infinitely kind, infinitely considerate. bishop meade, who knew him well, says that he "was a most conscientious man in regard to some things which others might regard as too trivial to be observed." on one of meade's frequent journeys with marshall between fauquier county and the "lower country," they came to an impassable stretch of road. other travelers had taken down a fence and gone through the adjoining plantation, and the bishop was about to follow the same route. marshall refused--"he said we had better go around, although each step was a plunge, adding that it was his duty, as one in office, to be very particular in regard to such things."[ ] when in richmond the one sport in which he delighted was the pitching of quoits. not when a lawyer was he a more enthusiastic or regular attendant of the meetings of the quoit club, or barbecue club,[ ] under the trees at buchanan's spring on the outskirts of richmond, than he was when at the height of his fame as chief justice of the united states. more personal descriptions of marshall at these gatherings have come down to us than exist for any other phase of his life. chester harding, the artist, when painting marshall's portrait during the summer of , spent some time in the virginia capital, and attended one of the meetings of the quoit club. it was a warm day, and presently marshall, then in his seventy-second year, was seen coming, his coat on his arm, fanning himself with his hat. walking straight up to a bowl of mint julep, he poured a tumbler full of the liquid, drank it off, said, "how are you, gentlemen?" and fell to pitching quoits with immense enthusiasm. when he won, says harding, "the woods would ring with his triumphant shout."[ ] james k. paulding went to richmond for the purpose of talking to the chief justice and observing his daily life. he was more impressed by marshall's gayety and unrestraint at the quoit club than by anything else he noted. "the chief-justice threw off his coat," relates paulding, "and fell to work with as much energy as he would have directed to the decision of ... the conflicting jurisdiction of the general and state governments." during the game a dispute arose between two players "as to the quoit nearest the meg." marshall was agreed upon as umpire. "the judge bent down on one knee and with a straw essayed the decision of this important question, ... frequently biting off the end of the straw" for greater accuracy.[ ] the morning play over, the club dinner followed. a fat pig, roasted over a pit of coals, cold meats, melons, fruits, and vegetables, were served in the old virginia style. the usual drinks were porter, toddy,[ ] and the club punch made of "lemons, brandy, rum, madeira, poured into a bowl one-third filled with ice (no water), and sweetened."[ ] in addition, champagne and other wines were sometimes provided.[ ] at these meals none of the witty company equaled marshall in fun-making; no laugh was so cheery and loud as his. not more was john marshall the chief of the accomplished and able men who sat with him on the supreme bench at washington than, even in his advancing years, he was the leader of the convivial spirits who gathered to pitch quoits, drink julep and punch, tell stories, sing songs, make speeches, and play pranks under the trees of richmond. marshall dearly loved, when at home, to indulge in the giving of big dinners to members of the bench and bar. in a wholly personal sense he was the best-liked man in richmond. the lawyers and judges living there were particularly fond of him, and the chief justice thoroughly reciprocated their regard. spencer roane, judge of the virginia court of appeals, seems to have been the one enemy marshall had in the whole city. indeed, roane and jefferson appear to have been the only men anywhere who ever hated him personally. even the testy george hay reluctantly yielded to his engaging qualities. when at the head of the virginia bar, marshall had been one of those leading attorneys who gave the attractive dinners that were so notable and delightful a feature of life in richmond. after he became chief justice, he continued this custom until his "lawyer dinners" became, among men, the principal social events of the place. many guests sat at marshall's board upon these occasions. among them were his own sons as well as those of some of his guests. these dinners were repetitions within doors of the quoit club entertainments, except that the food was more abundant and varied, and the cheering drinks were of better quality--for marshall prided himself on this feature of hospitality, especially on his madeira, of which he was said to keep the best to be had in america. wit and repartee, joke, story and song, speech and raillery, brought forth volleys of laughter and roars of applause until far into the morning hours.[ ] marshall was not only at the head of the table as host, but was the leader of the merriment.[ ] his labors as chief justice did not dull his delight in the reading of poetry and fiction, which was so keen in his earlier years.[ ] at the summit of his career, when seventy-one years old, he read all of jane austen's works, and playfully reproved story for failing to name her in a list of authors given in his phi beta kappa oration at harvard. "i was a little mortified," he wrote story, "to find that you had not admitted the name of miss austen into your list of favorites. i had just finished reading her novels when i received your discourse, and was so much pleased with them that i looked in it for her name, and was rather disappointed at not finding it. her flights are not lofty, she does not soar on eagle's wings, but she is pleasing, interesting, equable, and yet amusing. i count on your making some apology for this omission."[ ] story himself wrote poetry, and marshall often asked for copies of his verses.[ ] "the plan of life i had formed for myself to be adopted after my retirement from office," he tells story, "is to read nothing but novels and poetry."[ ] that this statement genuinely expressed his tastes is supported by the fact that, among the few books which the chief justice treasured, were the novels of sir walter scott and an extensive edition of the british poets.[ ] while his chief intellectual pleasure was the reading of fiction, marshall liked poetry even better; and he committed to memory favorite passages which he quoted as comment on passing incidents. once when he was told that certain men had changed their opinions as a matter of political expediency, he repeated homer's lines: "ye gods, what havoc does ambition make 'mong all your works."[ ] during the six or eight weeks that the supreme court sat each year, marshall was the same in manner and appearance in washington as he was among his neighbors in richmond--the same in dress, in habits, in every way. once a practitioner sent his little son to marshall's quarters for some legal papers. the boy was in awe of the great man. but the chief justice, detecting the feelings of the lad, remarked: "billy, i believe i can beat you playing marbles; come into the yard and we will have a game." soon the chief justice of the united states and the urchin were hard at play.[ ] if he reached the court-room before the hour of convening court, he sat among the lawyers and talked and joked as if he were one of them;[ ] and, judging from his homely, neglected clothing, an uninformed onlooker would have taken him for the least important of the company. yet there was about him an unconscious dignity that prevented any from presuming upon his good nature, for marshall inspired respect as well as affection. after their surprise and disappointment at his ill attire and want of impressiveness,[ ] attorneys coming in contact with him were unfailingly captivated by his simplicity and charm. it was thus that joseph story, when a very young lawyer, first fell under marshall's spell. "i love his laugh," he wrote; "it is too hearty for an intriguer,--and his good temper and unwearied patience are equally agreeable on the bench and in the study."[ ] and marshall wore well. the longer and more intimately men associated with him, the greater their fondness for him. "i am in love with his character, positively in love," wrote story after twenty-four years of close and familiar contact.[ ] he "rises ... with the nearest survey," again testified story in a magazine article.[ ] when, however, the time came for him to open court, a transformation came over him. clad in the robes of his great office, with the associate justices on either side of him, no king on a throne ever appeared more majestic than did john marshall. the kindly look was still in his eye, the mildness still in his tones, the benignity in his features. but a gravity of bearing, a firmness of manner, a concentration and intentness of mind, seemed literally to take possession of the man, although he was, and appeared to be, as unconscious of the change as he was that there was anything unusual in his conduct when off the bench.[ ] marshall said and did things that interested other people and caused them to talk about him. he was noted for his quick wit, and the bar was fond of repeating anecdotes about him. "did you hear what the chief justice said the other day?"--and then the story would be told of a bright saying, a quick repartee, a picturesque incident. chief justice gibson of pennsylvania, when a young man, went to marshall for advice as to whether he should accept a position offered him on the state bench. the young attorney, thinking to flatter him, remarked that the chief justice had "reached the acme of judicial distinction." "let me tell you what that means, young man," broke in marshall. "the acme of judicial distinction means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says."[ ] wherever he happened to be, nothing pleased marshall so much as to join a convivial party at dinner or to attend any sort of informal social gathering. on one occasion he went to the meeting of a club at philadelphia, held in a room at a tavern across the hall from the bar. it was a rule of the club that every one present should make a rhyme upon a word suddenly given. as he entered, the chief justice observed two or three kentucky colonels taking their accustomed drink. when marshall appeared in the adjoining room, where the company was gathered, he was asked for an extemporaneous rhyme on the word "paradox." looking across the hall, he quickly answered: "in the blue grass region, a 'paradox' was born, the corn was full of kernels and the 'colonels' full of corn."[ ] but marshall heartily disliked the formal society of the national capital. he was, of course, often invited to dinners and receptions, but he was usually bored by their formality. occasionally he would brighten his letters to his wife by short mention of some entertainment. "since being in this place," he writes her, "i have been more in company than i wish.... i have been invited to dine with the president with our own secretaries & with the minister of france & tomorrow i dine with the british minister.... in the midst of these gay circles my mind is carried to my own fireside & to my beloved wife."[ ] again: "soon after dinner yesterday the french chargé d'affaires called upon us with a pressing invitation to be present at a party given to the young couple, a gentleman of the french legation & the daughter of the secretary of the navy who are lately married. there was a most brilliant illumination which we saw and admired, & then we returned."[ ] of a dinner at the french legation he writes his wife, it was "rather a dull party. neither the minister nor his lady could speak english and i could not speak french. you may conjecture how far we were from being sociable. yesterday i dined with m^r van buren the secretary of state. it was a grand dinner and the secretary was very polite, but i was rather dull through the evening. i make a poor return for these dinners. i go to them with reluctance and am bad company while there. i hope we have seen the last, but i fear we must encounter one more.[ ] with the exception of these parties my time was never passed with more uniformity. i rise early, pour [_sic_] over law cases, go to court and return at the same hour and pass the evening in consultation with the judges."[ ] chester harding relates that, when he was in washington making a full-length portrait of the chief justice,[ ] marshall arrived late for the sitting, which had been fixed for eight o'clock in the evening. he came without a hat. congressman storrs and one or two other men, having seen marshall, bare-headed, hurrying by their inn with long strides, had "followed, curious to know the cause of such a strange appearance." but marshall simply explained to the artist that the consultation lasted longer than usual, and that he had hurried off without his hat. when the chief justice was about to go home, harding offered him a hat, but he said, "oh, no! it is a warm night, i shall not need one."[ ] no attorney practicing in the supreme court was more unreserved in social conversation than was the chief justice. sometimes, indeed, on a subject that appealed to him, marshall would do all the talking, which, for some reason, would occasionally be quite beyond the understanding of his hearer. of one such exhibition fisher ames remarked to samuel dexter: "i have not understood a word of his argument for half an hour." "and i," replied the leader of the massachusetts bar, "have been out of my depth for an hour and a half."[ ] the members of the supreme court made life as pleasant for themselves as they could during the weeks they were compelled to remain in "this dismal" place, as daniel webster described the national capital. marshall and the associate justices all lived together at one boarding-house, and thus became a sort of family. "we live very harmoniously and familiarly,"[ ] writes story, one year after his appointment. "my brethren are very interesting men," he tells another friend. we "live in the most frank and unaffected intimacy. indeed, we are all united as one, with a mutual esteem which makes even the labors of jurisprudence light."[ ] sitting about a single table at their meals, or gathered in the room of one of them, these men talked over the cases before them. not only did they "moot every question as" the arguments proceeded in court, but by "familiar conferences at our lodgings often come to a very quick, and ... accurate opinion, in a few hours," relates that faithful chronicler of their daily life, joseph story.[ ] story appears to have been even more impressed by the comradery of the members of the supreme court than by the difficulty of the cases they had to decide. none of them ever took his wife with him to washington, and this fact naturally made the personal relations of the justices peculiarly close. "the judges here live with perfect harmony," story reiterates, "and as agreeably as absence from friends and from families could make our residence. our intercourse is perfectly familiar and unconstrained, and our social hours when undisturbed with the labors of law, are passed in gay and frank conversation, which at once enlivens and instructs."[ ] this "gay and frank conversation" of marshall and his associates covered every subject--the methods, manners, and even dress of counsel who argued before them, the fortunes of public men, the trend of politics, the incident of the day, the gossip of society. "two of the judges are widowers," records story, "and of course objects of considerable attraction among the ladies of the city. we have fine sport at their expense, and amuse our leisure with some touches at match-making. we have already ensnared one of the judges, and he is now (at the age of forty-seven) violently affected with the tender passion."[ ] thus marshall, in his relation with his fellow occupants of the bench, was at the head of a family as much as he was chief of a court. although the discussion of legal questions occurred continuously at the boarding-house, each case was much more fully examined in the consultation room at the capitol. there the court had a regular "consultation day" devoted exclusively to the cases in hand. yet, even on these occasions, all was informality, and wit and humor brightened the tediousness. these "consultations" lasted throughout the day and sometimes into the night; and the justices took their meals while the discussions proceeded. amusing incidents, some true, some false, and others a mixture, were related of these judicial meetings. one such story went the rounds of the bar and outlived the period of marshall's life. "we are great ascetics, and even deny ourselves wine except in wet weather," story dutifully informed his wife. "what i say about the wine gives you our rule; but it does sometimes happen that the chief justice will say to me, when the cloth is removed, 'brother story, step to the window and see if it does not look like rain.' and if i tell him that the sun is shining brightly, judge marshall will sometimes reply, 'all the better, for our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.'"[ ] when, as sometimes happened, one of the associate justices displeased a member of the bar, marshall would soothe the wounded feelings of the lawyer. story once offended littleton w. tazewell of virginia by something said from the bench. "on my return from court yesterday," the chief justice hastened to write the irritated virginian, "i informed m^r story that you had been much hurt at an expression used in the opinion he had delivered in the case of the palmyra. he expressed equal surprize and regret on the occasion, and declared that the words which had given offense were not used or understood by him in an offensive sense. he assented without hesitation to such modification of them as would render them in your view entirely unexceptionable."[ ] as chief justice, marshall shrank from publicity, while printed adulation aggravated him. "i hope to god they will let me alone 'till i am dead," he exclaimed, when he had reached that eminence where writers sought to portray his life and character.[ ] he did, however, appreciate the recognition given from time to time by colleges and learned societies. in princeton conferred upon him the honorary degree of ll.d.; in he received the same degree from harvard and from the university of pennsylvania in . in , as we have seen, he was elected a corresponding member of the massachusetts historical society; on january , , he was made a member of the american academy of arts and sciences; and, in , was elected to the american philosophical society. all these honors marshall valued highly. this, then, was the man who presided over the supreme court of the united states when the decisions of that tribunal developed the national powers of the constitution and gave stability to our national life. his control of the court was made so easy for the justices that they never resented it; often, perhaps, they did not realize it. the influence of his strong, deep, clear mind was powerfully aided by his engaging personality. to agree with him was a pleasure. marshall's charm was as great as his intellect; he was never irritable; his placidity was seldom ruffled; not often was his good nature disturbed. his "great suavity, or rather calmness of manner, cannot readily be conceived," testifies george bancroft.[ ] the sheer magnitude of his views was, in itself, captivating, and his supremely lucid reasoning removed the confusion which more complex and subtle minds would have created in reaching the same conclusion. the elements of his mind and character were such, and were so combined, that it was both hard and unpleasant to differ with him, and both easy and agreeable to follow his lead. above all other influences upon his associates on the bench, and, indeed, upon everybody who knew him, was the sense of trustworthiness, honor, and uprightness he inspired.[ ] perhaps no public man ever stood higher in the esteem of his contemporaries for noble personal qualities than did john marshall. when reviewing his constructive work and marveling at his influence over his judicial associates, we must recall, even at the risk of iteration, the figure revealed by his daily life and habits--"a man who is tall to awkwardness, with a large head of hair, which looked as if it had not been lately tied or combed, and with dirty boots,"[ ] a body that seemed "without proportion," and arms and legs that "dangled from each other and looked half dislocated," dressed in clothes apparently "gotten from some antiquated slop-shop of second-hand raiment ... the coat and breeches cut for nobody in particular."[ ] but we must also think of such a man as possessed of "style and tones in conversation uncommonly mild, gentle, and conciliating."[ ] we must think of his hearty laughter, his "imperturbable temper,"[ ] his shyness with strangers, his quaint humor, his hilarious unreserve with friends and convivial jocularity when with intimates, his cordial warm-heartedness, unassuming simplicity and sincere gentleness to all who came in contact with him--a man without "an atom of gall in his whole composition."[ ] we must picture this distinctive american character among his associates of the bench in the washington boarding-house no less than in court, his luminous mind guiding them, his irresistible personality drawing from them a real and lasting affection. we must bear in mind the trust and confidence which so powerfully impressed those who knew the man. we must imagine a person very much like abraham lincoln. indeed, the resemblance of marshall to lincoln is striking. between no two men in american history is there such a likeness. physically, intellectually, and in characteristics, marshall and lincoln were of the same type. both were very tall men, slender, loose-jointed, and awkward, but powerful and athletic; and both fond of sport. so alike were they, and so identical in their negligence of dress and their total unconsciousness of, or indifference to, convention, that the two men, walking side by side, might well have been taken for brothers. both marshall and lincoln loved companionship with the same heartiness, and both had the same social qualities. they enjoyed fun, jokes, laughter, in equal measure, and had the same keen appreciation of wit and humor. their mental qualities were the same. each man had the gift of going directly to the heart of any subject; while the same lucidity of statement marked each of them. their style, the simplicity of their language, the peculiar clearness of their logic, were almost identical. notwithstanding their straightforwardness and amplitude of mind, both had a curious subtlety. some of marshall's opinions and lincoln's state papers might have been written by the same man. the "freeholder" questions and answers in marshall's congressional campaign, and those of lincoln's debate with douglas, are strikingly similar in method and expression. each had a genius for managing men; and marshall showed the precise traits in dealing with the members of the supreme court that lincoln displayed in the cabinet. both were born in the south, each on the eve of a great epoch in american history when a new spirit was awakening in the hearts of the people. although southern-born, both marshall and lincoln sympathized with and believed in the north; and yet their manners and instinct were always those of the south. marshall was given advantages that lincoln never had; but both were men of the people, were brought up among them, and knew them thoroughly. lincoln's outlook upon life, however, was that of the humblest citizen; marshall's that of the well-placed and prosperous. neither was well educated, but each acquired, in different ways, a command of excellent english and broad, plain conceptions of government and of life. neither was a learned man, but both created the materials for learning. marshall and lincoln were equally good politicians; but, although both were conservative in their mental processes, marshall lost faith in the people's steadiness, moderation, and self-restraint; and came to think that impulse rather than wisdom was too often the temporary moving power in the popular mind, while the confidence of lincoln in the good sense, righteousness, and self-control of the people became greater as his life advanced. if, with these distinctions, abraham lincoln were, in imagination, placed upon the supreme bench during the period we are now considering, we should have a good idea of john marshall, the chief justice of the united states. it is, then, largely the personality of john marshall that explains the hold, as firm and persistent as it was gentle and soothing, maintained by him upon the associate justices of the supreme court; and it is this, too, that enables us to understand his immense popularity with the bar--a fact only second in importance to the work he had to do, and to his influence upon the men who sat with him on the bench. for the lawyers who practiced before the supreme court at this period were most helpful to marshall.[ ] many of them were men of wide and accurate learning, and nearly all of them were of the first order of ability. no stronger or more brilliant bar ever was arrayed before any bench than that which displayed its wealth of intellect and resources to marshall and his associates.[ ] this assertion is strong, but wholly justified. oratory of the finest quality, though of the old rhetorical kind, filled the court-room with admiring spectators, and entertained marshall and the other justices, as much as the solid reasoning illuminated their minds, and the exhaustive learning informed them. marshall encouraged extended arguments; often demanded them. frequently a single lawyer would speak for two or three days. no limit of time was put upon counsel.[ ] their reputation as speakers as well as their fame as lawyers, together with the throngs of auditors always present, put them on their mettle. rhetoric adorned logic; often encumbered it. a conflict between such men as william pinkney, luther martin of maryland, samuel dexter of massachusetts, thomas addis emmet of new york, william wirt of virginia, joseph hopkinson of pennsylvania, jeremiah mason of new hampshire, daniel webster, henry clay, and others of scarcely less distinction, was, in itself, an event. these men, and indeed all the members of the bar, were marshall's friends as well as admirers. the appointment of story to the supreme bench was, like the other determining circumstances in marshall's career, providential. few characters in american history are more attractive than the new england lawyer and publicist who, at the age of thirty-two, took his place at marshall's side on the supreme bench. handsome, vivacious, impressionable, his mind was a storehouse of knowledge, accurately measured and systematically arranged. he read everything, forgot nothing. his mental appetite was voracious, and he had a very passion for research. his industry was untiring, his memory unfailing. he supplied exactly the accomplishment and toilsomeness that marshall lacked. so perfectly did the qualities and attainments of these two men supplement one another that, in the work of building the american nation, marshall and story may be considered one and the same person. where marshall was leisurely, story was eager. if the attainments of the chief justice were not profuse, those of his young associate were opulent. marshall detested the labor of investigating legal authorities; story delighted in it. the intellect of the older man was more massive and sure; but that of the youthful justice was not far inferior in strength, or much less clear and direct in its operation. marshall steadied story while story enriched marshall. each admired the other, and between them grew an affection like that of father and son. story's father, elisha story, was a member of the republican party, a rare person among wealthy and educated men in massachusetts at the time jefferson founded that political organization. the son tells us that he "naturally imbibed the same opinions," which were so reprobated that not "more than four or five lawyers in the whole state ... _dared_ avow themselves republicans. the very name was odious."[ ] [illustration] joseph story was born in marblehead, massachusetts, september , , one of a family of eighteen children, seven by a first wife and eleven by a second. he was the eldest son of the second wife, who had been a miss pedrick, the daughter of a rich merchant and shipowner.[ ] no young member of the massachusetts bar equaled joseph story in intellectual gifts and acquirements. he was a graduate of harvard, and few men anywhere had a broader or more accurate education. his personality was winning and full of charm. yet, when he began practice at salem, he was "persecuted" with "extreme ... virulence" because of his political opinions.[ ] he became so depressed by what he calls "the petty prejudices and sullen coolness of new england, ... bigoted in opinion and satisfied in forms," where federalism had "persecuted ... [him] unrelentingly for ... [his] political principles," that he thought seriously of going to baltimore to live and practice his profession. he made headway, however, in spite of opposition; and, when the growing republican party, "the whole" of which he says were his "warm advocates,"[ ] secured the majority of his district, story was sent to congress. "i was ... of course a supporter of the administration of mr. jefferson and mr. madison," although not "a mere slave to the opinions of either." in exercising what he terms his "independent judgment,"[ ] story favored the repeal of the embargo, and so earned, henceforth, the lasting enmity of jefferson.[ ] because of his recognized talents, and perhaps also because of the political party to which he belonged, he was employed to go to washington as attorney for the new england and mississippi company in the yazoo controversy.[ ] it was at this period that the new england federalist leaders began to cultivate him. they appreciated his ability, and the assertion of his "independent principles" was to their liking. harrison gray otis was quick to advise that seasoned politician, robert goodloe harper, of the change he thought observable in story, and the benefit of winning his regard. "he is a young man of talents, who commenced democrat a few years since and was much fondled by his party," writes otis. "he discovered however too much sentiment and honor to go _all lengths_ ... and a little attention from the right sort of people will be very useful to him & to us."[ ] the wise george cabot gave pickering the same hint when story made one of his trips to washington on the yazoo business. "though he is a man whom the democrats support," says cabot, "i have seldom if ever met with one of sounder mind on the principal points of national policy. he is well worthy the civil attention of the most respectable federalists."[ ] it was while in the capital, as attorney before congress and the supreme court in the georgia land controversy, that story, then twenty-nine years old, met marshall; and impulsively wrote of his delight in the "hearty laugh," "patience," consideration, and ability of the chief justice. on this visit to washington the young massachusetts lawyer took most of his meals with the members of the supreme court.[ ] at that time began the devotion of joseph story to john marshall which was to prove so helpful to both for more than a generation, and so influential upon the republic for all time. that story, while in washington, had copiously expressed his changing opinions, as well as his disapproval of jefferson's embargo, is certain; for he was "a very great talker,"[ ] and stated his ideas with the volubility of his extremely exuberant nature. "at this time, as in after life," declares story's son, "he was remarkable for fulness and fluency of conversation. it poured out from his mind ... sparkling, and exhaustless. language was as a wide open sluice, through which every feeling and thought rushed forth.... it would be impossible to give an idea of his conversational powers."[ ] it was not strange, then, that jefferson, who was eager for all gossip and managed to learn everything that happened, or was said to have happened, in washington, heard of story's association with the federalists, his unguarded talk, and especially his admiration for the chief justice. it was plain to jefferson that such a person would never resist marshall's influence. in jefferson's mind existed another objection to story which may justly be inferred from the situation in which he found himself when the problem arose of filling the place on the supreme bench vacated by the death of justice cushing. story had made a profound study of the law of real estate; and, young though he was, no lawyer in america equaled him, and few in england surpassed him, in the intricate learning of that branch of legal science. this fact was well known to the bar at washington as well as to that of massachusetts. therefore, the thought of story on the supreme bench, and under marshall's influence, made jefferson acutely uncomfortable; for the former president was then engaged in a lawsuit involving questions of real estate which, if decided against him, would, as he avowed, ruin him. this lawsuit was the famous batture litigation. it was this predicament that led jefferson to try to control the appointment of the successor to cushing, whose death he declared to be "a godsend"[ ] to him personally; and also to dictate the naming of the district judge at richmond to the vacancy caused by the demise of judge cyrus griffin. in the spring of , edward livingston, formerly of new york and then of new orleans, brought suit in the united states court for the district of virginia against thomas jefferson for damages to the amount of one hundred thousand dollars. this was the same livingston who in congress had been the republican leader in the house when marshall was a member of that body.[ ] afterwards he was appointed united states attorney for the district of new york and then became mayor of that city. during the yellow fever epidemic that scourged new york in , livingston devoted himself to the care of the victims of the plague, leaving the administration of the mayor's office to a trusted clerk. in time livingston, too, was stricken. during his illness his clerk embezzled large sums of the public money. the mayor was liable and, upon his recovery, did not attempt to evade responsibility, but resigned his office and gave all his property to make good the defalcation. a heavy amount, however, still remained unpaid; and the discharge of this obligation became the ruling purpose of livingston's life until, twenty years afterward, he accomplished his object. his health regained, livingston went to new orleans to seek fortune anew. there he soon became the leader of the bar. when wilkinson set up his reign of terror in that city, it was edward livingston who swore out writs of habeas corpus for those illegally imprisoned and, in general, was the most vigorous as well as the ablest of those who opposed wilkinson's lawless and violent measures.[ ] jefferson had been displeased that livingston had not shown more enthusiasm for him, when, in , the federalists had tried to elect burr to the presidency, and bitterly resented livingston's interference with wilkinson's plans to "suppress treason" in new orleans. one john gravier, a lifelong resident of that city, had inherited from his brother bertrand certain real estate abutting the river. between this and the water the current had deposited an immense quantity of alluvium. the question of the title to this river-made land had never been raised, and everybody used it as a sort of common wharf front. alert for opportunities to make money with which fully to discharge the defalcation in the new york mayor's office, livingston investigated the rightful ownership of the batture, as the alluvial deposit was termed; satisfied himself that the title was in gravier; gave an opinion to that effect, and brought suit for the property as gravier's attorney.[ ] while the trial of aaron burr was in progress in richmond, the circuit court in new orleans rendered judgment in favor of gravier,[ ] who then conveyed half of his rights to his attorney, apparently as a fee for the recovery of the batture. livingston immediately began to improve his property, whereupon the people became excited and drove away his workmen. governor claiborne refused to protect him and referred the whole matter to jefferson. the president did not direct the attorney-general to bring suit for the possession of the batture--the obvious and the legal form of procedure. indeed, the title to the property was not so much as examined. jefferson did not even take into consideration the fact that, if livingston was not the rightful owner of the batture, it might belong to the city of new orleans. he merely assumed that it was national property; and, hastily acting under a law against squatters on lands belonging to the united states, he directed secretary of state madison to have all persons removed from the disputed premises. accordingly, the united states marshal was ordered to eject the "intruder" and his laborers. this was done; but livingston told his men to return to their work and secured an injunction against the marshal from further molesting them. that official ignored the order of the court and again drove the laborers off the batture. livingston begged the president to submit the controversy to arbitration or to judicial decision, but jefferson was deaf to his pleas. the distracted lawyer appealed to congress for relief.[ ] that body ignored his petition.[ ] he then brought suit against the marshal in new orleans for the recovery of his property. soon afterward he brought another in virginia against jefferson for one hundred thousand dollars damages. such, in brief outline, was the beginning of the famous "batture controversy," in which jefferson and livingston waged a war of pamphlets for years. when he learned that livingston had begun action against him in the federal court at richmond, jefferson was much alarmed. in anticipation of the death of judge cyrus griffin, governor john tyler had written jefferson that, while he "never did apply for an office," yet "judge griffin is in a low state of health, and holds my old office." tyler continues: "i really hope the president will chance to think of me ... in case of accidents, and if an opportunity offers, lay me down softly on a bed of _roses in my latter days_." he condemns marshall for his opposition to the war of , and especially for his reputed statement that great britain had done nothing to justify armed retaliation on our part.[ ] "is it possible," asks tyler, "that a man who can assert this, can have any true sense of sound veracity? and yet these sort of folks retain their stations and consequence in life."[ ] immediately jefferson wrote to president madison: "from what i can learn griffin cannot stand it long, and really the state has suffered long enough by having such a cypher in so important an office, and infinitely the more from the want of any counter-point to the rancorous hatred which marshall bears to the government of his country, & from the cunning & sophistry within which he is able to enshroud himself. it will be difficult to find a character of firmness enough to preserve his independence on the same bench with marshall. tyler, i am certain, would do it.... a milk & water character ... would be seen as a calamity. tyler having been the former state judge of that court too, and removed to make way for so wretched a fool as griffin,[ ] has a kind of right of reclamation." jefferson gives other reasons for the appointment of tyler, and then addresses madison thus: "you have seen in the papers that livingston has served a writ on me, stating damages at , . d... i shall soon look into my papers to make a state of the case to enable them to plead." jefferson hints broadly that he may have to summon as witnesses his "associates in the proceedings," one of whom was madison himself. he concludes this astounding letter in these words: "it is a little doubted that his [livingston's] knolege [_sic_] of marshall's character has induced him to bring this action. his twistifications of the law in the case of marbury, in that of burr, & the late yazoo case shew how dexterously he can reconcile law to his personal biasses: and nobody seems to doubt that he is ready prepared to decide that livingston's right to the batture is unquestionable, and that i am bound to pay for it with my private fortune."[ ] the next day jefferson wrote tyler that he had "laid it down as a law" to himself "never to embarrass the president with any solicitations." yet, in tyler's case, says jefferson, "i ... have done it with all my heart, and in the full belief that i serve him and the public in urging the appointment." for, jefferson confides to the man who, in case madison named him, would, with marshall, hear the suit, "we have long enough suffered under the base prostitution of the law to party passions in one judge, and the imbecility of another. "in the hands of one [marshall] the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice. nor can any milk-and-water associate maintain his own independence, and by a firm pursuance of what the law really is, extend its protection to the citizens or the public.... and where you cannot induce your colleague to do what is right, you will be firm enough to hinder him from doing what is wrong, and by opposing sense to sophistry, leave the juries free to follow their own judgment."[ ] upon the death of judge griffin in the following december, john tyler was appointed to succeed him. on september , , william cushing, associate justice of the supreme court, died. only three federalists now remained on the supreme bench, samuel chase, bushrod washington, and john marshall. the other justices, william johnson of south carolina, brockholst livingston of new york, and thomas todd of kentucky, were republicans, appointed by jefferson. the selection of cushing's successor would give the majority of the court to the republican party for the first time since its organization. that madison would fill the vacancy by one of his own following was certain; but this was not enough to satisfy jefferson, who wanted to make sure that the man selected was one who would not fall under marshall's baleful influence. if griffin did not die in time, jefferson's fate in the batture litigation would be in marshall's hands. should griffin be polite enough to breathe his last promptly and tyler be appointed in season, still jefferson would not feel safe--the case might go to the jury, and who could tell what their verdict would be under marshall's instructions? even tyler might not be able to "hinder" marshall "from wrong doing"; for nothing was more probable than that, no matter what the issue of the case might be, it would be carried to the supreme court if any ground for appeal could be found. certainly jefferson would take it there if the case should go against him. it was vital, therefore, that the latest vacancy on the supreme bench should also be filled by a man on whom jefferson could depend. the new justice must come from new england, cushing having presided over that circuit. republican lawyers there, fit for the place, were at that time extremely hard to find. jefferson had been corresponding about the batture case with gallatin, who had been his secretary of the treasury and continued in that office under madison. the moment he learned of cushing's death, jefferson wrote to gallatin in answer to a letter from that able man, admitting that "the batture ... could not be within the scope of the law ... against squatters," under color of which livingston had been forcibly ousted from that property. jefferson adds: "i should so adjudge myself; yet i observe many opinions otherwise, and in defence against a spadassin it is lawful to use all weapons." the case is complex; still no unbiased man "can doubt what the issue of the case ought to be. what it will be, no one can tell. "the judge's [marshall's] inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim. his decisions, his instructions to a jury, his allowances and disallowances and garblings of evidence, must all be subjects of appeal.... and to whom is my appeal? from the judge in burr's case to himself and his associate judges in the case of marbury v. madison. "not exactly, however. i observe old cushing is dead.... the event is a fortunate one, and so timed as to be a godsend to me. i am sure its importance to the nation will be felt, and the occasion employed to complete the great operation they have so long been executing, by the appointment of a decided republican, with nothing equivocal about him. but who will it be?" jefferson warmly recommends levi lincoln, his former attorney-general. since the new justice must come from new england, "can any other bring equal qualifications?... i know he was not deemed a profound common lawyer; but was there ever a profound common lawyer known in one of the eastern states? there never was, nor never can be, one from those states.... mr. lincoln is ... as learned in their laws as any one they have."[ ] after allowing time for gallatin to carry this message to the president, jefferson wrote directly to madison. he congratulates him on "the revocation of the french decrees"; abuses great britain for her "principle" of "the exclusive right to the sea by conquest"; and then comes to the matter of the vacancy on the supreme bench. "another circumstance of congratulation is the death of cushing," which "gives an opportunity of closing the reformation [the republican triumph of ] by a successor of unquestionable republican principles." jefferson suggests lincoln. "were he out of the way," then gideon granger ought to be chosen, "tho' i am sensible that j.[ohn] r.[andolph] has been able to lessen the confidence of many in him.[ ]... as the choice must be of a new englander, ... i confess i know of none but these two characters." of course there was joseph story, but he is "unquestionably a tory," and "too young."[ ] madison strove to follow jefferson's desires. cushing's place was promptly offered to lincoln, who declined it because of approaching blindness. granger, of course, was impossible--the senate would not have confirmed him. so alexander wolcott, "an active democratic politician of connecticut," of mediocre ability and "rather dubious ... character,"[ ] was nominated; but the senate rejected him. it seemed impossible to find a competent lawyer in new england who would satisfy jefferson's requirements. john quincy adams, who had deserted the federalist party and acted with the republicans, and who was then minister to russia, was appointed and promptly confirmed. jefferson himself had not denounced marshall so scathingly as had adams in his report to the senate on the proposed expulsion of senator john smith of ohio.[ ] it was certain that he would not, as associate justice, be controlled by the chief justice. but adams preferred to continue in his diplomatic post, and refused the appointment. thus story became the only possible choice. after all, he was still believed to be a republican by everybody except jefferson and the few federalist leaders who had been discreetly cultivating him. at least his appointment would not be so bad as the selection of an out-and-out federalist. on november , , therefore, joseph story was made an associate justice of the supreme court of the united states. in massachusetts his appointment "was ridiculed and condemned."[ ] although jefferson afterward declared that he "had a strong desire that the public should have been satisfied by a trial on the merits,"[ ] he was willing that his counsel should prevent the case from coming to trial if they could. fearing, however, that they would not succeed, jefferson had prepared, for the use of his attorneys, an exhaustive brief covering his version of the facts and his views of the law. spencer roane, judge of the virginia court of appeals, and as hot a partisan of jefferson as he was an implacable enemy of marshall, read this manuscript and gave tyler "some of the outlines of it." tyler explains this to jefferson after the decision in his favor, and adds that, much as tyler wanted to get hold of jefferson's brief, still, "as soon as i had received the appointment ... (which i owe to your favor in great measure), it became my duty to shut the door against every observation which might in any way be derived from either side, lest the impudent british faction, who had enlisted on livingston's side, might suppose an undue influence had seized upon me."[ ] the case aroused keen interest in virginia and, indeed, throughout the country. jefferson was still the leader of the republican party and was as much beloved and revered as ever by the great majority of the people. when, therefore, he was sued for so large a sum of money, the fact excited wide and lively attention. that the plaintiff was such a man as edward livingston gave sharper edge to the general interest. especially among lawyers, curiosity as to the outcome was keen. in richmond, of course, "great expectation was excited." when the case came on for hearing, tyler was so ill from a very painful affliction that he could scarcely sit through the hearing; but he persisted because he had "determined to give an opinion." the question of jurisdiction alone was argued and only this was decided. both judges agreed that the court had no jurisdiction, though marshall did so with great reluctance. he wished "to carry the cause to the supreme court, by adjournment or somehow or other; but," says tyler in his report to jefferson, "i pressed the propriety of [its] being decided."[ ] marshall, however, delivered a written opinion in which he gravely reflected on jefferson's good faith in avoiding a trial on the merits. if the court, upon mere technicality, were prevented from trying and deciding the case, "the injured party may have a clear right without a remedy"; and that, too, "in a case where a person who has done the wrong, and who ought to make the compensation, is within the power of the court." the situation created by jefferson's objection to the court's jurisdiction was unfortunate: "where the remedy is against the person, and is within the power of the court, i have not yet discerned a reason, other than a technical one, which can satisfy my judgment" why the case should not be tried and justice done. "if, however," continues marshall, "this technical reason is firmly established, if all other judges respect it, i cannot venture to disregard it," no matter how wrong in principle and injurious to livingston the chief justice might think it. if lord mansfield, "one of the greatest judges who ever sat upon any bench, and who has done more than any other, to remove those technical impediments which ... too long continued to obstruct the course of substantial justice," had vainly attempted to remove the very "technical impediments" which jefferson had thrown in livingston's way, marshall would not make the same fruitless effort. to be sure, the technical point raised by jefferson's counsel was a legal fiction derived from "the common law of england"; but "this common law has been adopted by the legislature of virginia"; and "had it not been adopted, i should have thought it in force." thus marshall, by innuendo, blames jefferson for invoking, for his own protection, a technicality of that very common law which the latter had so often and so violently denounced. for the third time marshall deplores the use of a technicality "which produces the inconvenience of a clear right without a remedy." "other judges have felt the weight of this argument, and have struggled ineffectually against" it; so, he concluded, "i must submit to it."[ ] thus it was that jefferson at last escaped; for it was nothing less than an escape. what a decision on the merits of the case would have been is shown by the opinion of chancellor kent, stated with his characteristic emphasis. jefferson was anxious that the public should think that he was in the right. "mr. livingston's suit having gone off on the plea to the jurisdiction, it's foundation remains of course unexplained to the public. i have therefore concluded to make it public thro' the ... press.... i am well satisfied to be relieved from it, altho' i had a strong desire that the public should have been satisfied by a trial on the merits."[ ] accordingly, jefferson prepared his statement of the controversy and, curiously enough, published it just before livingston's suit against the united states marshal in new orleans was approaching decision. to no other of his documents did he give more patient and laborious care. livingston replied in an article[ ] which justified the great reputation for ability and learning he was soon to acquire in both europe and america.[ ] kent followed this written debate carefully. when livingston's answer appeared, kent wrote him: "i read it eagerly and studied it thoroughly, with a re-examination of jefferson as i went along; and i should now be as willing to subscribe my name to the validity of your title and to the atrocious injustice you have received as to any opinion contained in johnson's reports."[ ] marshall's attitude in the batture litigation intensified jefferson's hatred for the chief justice, while jefferson's conduct in the whole matter still further deepened marshall's already profound belief that the great exponent of popular government was dishonest and cowardly. story shared marshall's views; indeed, the batture controversy may be said to have furnished that personal element which completed story's forming antagonism to jefferson. "who ... can remember, without regret, his conduct in relation to the batture of new orleans?" wrote story many years afterward.[ ] the chief justice attributed the attacks which jefferson made upon him in later years to his opinion in livingston _vs._ jefferson, and to the views he was known to have held as to the merits of that case and jefferson's course in relation to it. "the batture will never be forgotten," wrote the chief justice some years later when commenting on the attacks upon the national judiciary which he attributed to jefferson.[ ] again: "the case of the mandamus[ ] may be the cloak, but the batture is recollected with still more resentment."[ ] events thus sharpened the hostility of jefferson and his following to marshall, but drew closer the bonds between the chief justice and joseph story. once under marshall's pleasing, steady, powerful influence, story sped along the path of nationalism until sometimes he was ahead of the great constructor who, as he advanced, was building an enduring and practicable highway. footnotes: [ ] jefferson to madison, may , , _works_: ford, xi, . "there is no man in the court that strikes me like marshall.... i have never seen a man of whose intellect i had a higher opinion." (webster to his brother, march , , _private correspondence of daniel webster_: webster, i, .) [ ] "in the possession of an ordinary man ... it [the office of chief justice] would be very apt to disgrace him." (story to mclean, oct. , , story, ii, .) [ ] justice duval's name is often, incorrectly, spelled with two "l's." [ ] "no man had ever a stronger influence upon the minds of others." (_american jurist_, xiv, .) [ ] ingersoll: _historical sketch of the second war between the united states and great britain_, d series, i, . [ ] "he was not, in any sense of the word, a learned man." (george s. hillard in _north american review_, xlii, .) [ ] see vol. i, , of this work; also _southern literary messenger_, xvii, ; and terhune: _colonial homesteads_, . [ ] see vol. ii, , of this work. [ ] mordecai: _richmond in by-gone days_, . [ ] terhune, . [ ] _ib._ ; and see howe: _historical collections of virginia_, . [ ] _green bag_, viii, . [ ] personal experience related by dr. william p. palmer to dr. j. franklin jameson, and by him to the author. [ ] meade: _old churches, ministers and families of virginia_, ii, . [ ] _magazine of american history_, xii, ; also _green bag_, viii, . [ ] anderson, . [ ] the stage schedule was much shorter, but the hours of travel very long. the stage left petersburg at a.m., arrived at warrenton at p.m., left warrenton at a.m., and arrived at raleigh the same night. (data furnished by professor archibald henderson.) the stage was seldom on time, however, and the hardships of traveling in it very great. marshall used it only when in extreme haste, a state of mind into which he seldom would be driven by any emergency. [ ] mordecai, - . bishop meade says of marshall on his trips to fauquier county, "servant he had none." (meade, ii, .) [ ] as related by m. d. haywood, librarian of the supreme court of north carolina, to professor archibald henderson and by him to the author; and see _harper's magazine_, lxx, ; _world's work_, i, . [ ] judge james c. macrae in _john marshall--life, character and judicial services_: dillon, ii, . [ ] as late as april, , the population of raleigh was between six hundred and seven hundred. nearly all the houses were of wood. by there were only four brick houses in the town. [ ] _magazine of american history_, xii, . [ ] account of eye-witness as related by dr. kemp p. battle of raleigh to professor henderson and by him to the author. another tavern was opened about by one john marshall. he had been one of the first commissioners of raleigh, serving until . he was no relation whatever to the chief justice. as already stated (vol. i, footnote to , of this work) the name was a common one. [ ] mr. w. j. peele of raleigh to professor henderson. [ ] see _infra_, - . [ ] haywood to steele, june , . (ms. supplied by professor henderson.) [ ] _world's work_, i, . this statement is supported by the testimony of mr. edward v. valentine of richmond, who has spent many years gathering and verifying data concerning richmond and its early citizens. it is also confirmed by the honorable james keith, until recently president of the court of appeals of virginia, and by others of the older residents of richmond. for some opinions thus written, see chaps, iv, v, and vi of this volume. [ ] _green bag_, viii, . sympathetic richmond even ordered the town clock and town bell muffled. (meade, ii, .) [ ] statements of two eye-witnesses, dr. richard crouch and william f. gray, to mr. edward v. valentine and by him related to the author. [ ] accounts given professor j. franklin jameson by old residents of richmond, and by professor jameson to the author. [ ] marshall to his wife, washington, feb. , , ms. [ ] same to same, march , , ms. [ ] same to same, feb. , , ms. [ ] marshall to his wife, washington, jan. , , ms. [ ] see _infra_, chap. x. [ ] mrs. marshall did not write to her children, it would seem. when he was in richmond, the chief justice himself sent messages from her which were ordinary expressions of affection. "your mother is very much gratified with the account you give from yourself and claudia of all your affairs & especially of your children and hopes for its continuance. she looks with some impatience for similar information from john. she desires me to send her love to all the family including miss maria and to tell you that this hot weather distresses her very much & she wishes you also to give her love to john & elizabeth & their children." (marshall to his son james k. marshall, richmond, july , , ms.) [ ] see vol. i, footnote to , of this work. [ ] in leeds parish, near oakhill, fauquier county. [ ] meade, ii, - . [ ] _green bag_, viii, . [ ] howe, - . [ ] _ib._ [ ] this story was originally published in the _winchester republican_. the incident is said to have occurred at mcguire's hotel in winchester. the newspaper account is reproduced in the charleston (s.c.) edition ( ) of howe's book, - . [ ] joseph story in dillon, iii, - . [ ] martineau: _retrospect of western travels_, i, . [ ] _north american review_, xx, - . [ ] marshall to story, oct. , , _proceedings, massachusetts historical society_, d series, xiv, - . [ ] thomas, born july , ; jacquelin ambler, born december , ; mary, born september , ; john, born january , ; james keith, born february , ; edward carrington, born january , . (paxton: _marshall family_, genealogical chart.) [ ] edward carrington was the only son to receive the degree of a.b. from harvard ( ). [ ] paxton, . [ ] marshall to story, june , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] see vol. i, - , of this work. [ ] howe (charleston, s.c., ed. of ), . [ ] meade, ii, . [ ] tyler: _tyler_, i, ; and see vol. ii, - , of this work. [ ] white: _a sketch of chester harding, artist_, - . [ ] _lippincott's magazine_, ii, . paulding makes this comment on marshall: "in his hours of relaxation he was as full of fun and as natural as a child. he entered into the spirit of athletic exercises with the ardor of youth; and at sixty-odd years of age was one of the best quoit-players in virginia." (_ib._ .) [ ] _american turf register and sporting magazine_ ( ), i, - ; and see mordecai, - . [ ] recipe for the quoit club punch, _green bag_, viii, . this recipe was used for many years by the richmond light infantry blues. [ ] see vol. ii, , of this work. [ ] on these occasions mrs. marshall spent the nights at the house of her daughter or sister. [ ] for an extended description of marshall's "lawyer dinners" see terhune, - . [ ] see vol. i, - , - , of this work. [ ] marshall to story, nov. , , story, i, . [ ] story to his wife, feb. , , _ib._ ii, . [ ] marshall to story, sept. , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] statement of miss elizabeth marshall of leeds manor to the author. [ ] meade, i, footnote to . [ ] _world's work_, i, . [ ] gustavus schmidt in _louisiana law journal_ ( ), i, no. , - . mr. schmidt's description is of marshall in the court-room at richmond when holding the united states circuit court at that place. ticknor, story, and others show that the same was true in washington. [ ] quincy: _figures of the past_, - . [ ] story to fay, feb. , , story, i, - . [ ] story to martineau, oct. , , story, ii, . [ ] _ib._ i, . [ ] gustavus schmidt in _louisiana law journal_ ( ), i, no. , - . [ ] related to the author by mr. sussex d. davis of the philadelphia bar. [ ] related to the author by thomas marshall smith of baltimore, a descendant of marshall. mr. smith says that this story has been handed down through three generations of his family. [ ] marshall to his wife, feb. , , ms. [ ] same to same, jan. , , ms. [ ] for excellent descriptions of washington society during marshall's period see the letters of moss kent, then a representative in congress. these mss. are in the library of congress. also see story to his wife, feb. , , story, i, . [ ] marshall to his wife, jan. , , ms. [ ] this was painted for the boston athenæum. see frontispiece in vol. iii. the other portrait by harding, painted in richmond (see _supra_, ), was given to story who presented it to the harvard law school. [ ] white: _sketch of chester harding_, - . for the chief justice to lose or forget articles of clothing was nothing unusual. "he lost a coat, when he dined at the secretary of the navy's," writes story who had been making a search for marshall's missing garment. (story to webster, march , , story mss. mass. hist. soc.) [ ] story, ii, - . [ ] story to williams, feb. , , _ib._ i, . [ ] story to fay, feb. , , _ib._ . [ ] _ib._ [ ] story to his wife, march , , story, i, . [ ] same to same, march , , _ib._ . [ ] _magazine of american history_, xii, ; and see quincy: _figures of the past_, - . this tale, gathering picturesqueness as it was passed by word of mouth during many years, had its variations. [ ] marshall to tazewell, jan. , , ms. [ ] wirt to delaplaine, nov. , , kennedy: _memoirs of the life of william wirt_, ii, . [ ] bancroft to his wife, jan. , , howe: _life and letters of george bancroft_, i, . [ ] even jefferson, in his bitterest attacks, never intimated anything against marshall's integrity; and spencer roane, when assailing with great violence the opinion of the chief justice in m'culloch _vs._ maryland (see _infra_, chap, vi), paid a high tribute to the purity of his personal character. [ ] ticknor to his father, feb. , , ticknor: _life, letters, and journals of george ticknor_, i, . [ ] description from personal observation, as quoted in van santvoord: _lives and judicial services of the chief justices_, footnote to . [ ] ticknor to his father, as cited in note , _supra_. [ ] _memoirs of john quincy adams_: adams, ix, . [ ] wirt to carr, dec. , , kennedy, . for story's estimate of marshall's personality see dillon, iii, - . [ ] "he was solicitous to hear arguments, and not to decide causes without hearing them. and no judge ever profited more by them. no matter whether the subject was new or old; familiar to his thoughts or remote from them; buried under a mass of obsolete learning, or developed for the first time yesterday--whatever was its nature, he courted argument, nay, he demanded it." (story in dillon, iii, ; and see vol. ii, - , of this work.) [ ] see story's description of harper, duponceau, rawle, dallas, ingersoll, lee, and martin (story to fay, feb. , , story, i, - ); and of pinkney (notes _supra_); also see warren: _history of the american bar_, - . we must remember, too, that webster, hopkinson, emmet, wirt, ogden, clay, and others of equal ability and accomplishments, practiced before the supreme court when marshall was chief justice. [ ] story relates that a single case was argued for nine days. (story to fay, feb. , , story, i, .) in the charlestown bridge case, argued in , the opening counsel on each side occupied three days. (story to ashmun, march , , _ib._ ii, .) four years later story writes: "we have now a case ... which has been under argument eight days, and will probably occupy five more." (story to fay, march , , _ib._ .) in the lower courts the arguments were even longer. "this is the fourteenth day since this argument was opened. pinkney ... promised to speak only two hours and a half. he has now spoken two days, and is, at this moment, at it again for the third day." (wirt to his wife, april , , kennedy, ii, .) [ ] story, i, . [ ] story, i, . elisha story is said to have been one of the "indians" who threw overboard the tea at boston; and he fought at lexington. when the revolution got under way, he entered the american army as a surgeon and served for about two years, when he resigned because of his disgust with the management of the medical department. (_ib._) [ ] story to duval, march , , _ib._ . [ ] story to williams, june , , _ib._ - . [ ] story, i, . [ ] at first, story supported the embargo. [ ] see vol. iii, chap, x, of this work. [ ] otis to harper, april , , morison: _otis_, i, . [ ] cabot to pickering, jan. , , lodge: _cabot_, . [ ] story to fay, feb. , , story, i, . [ ] moss kent to james kent, feb. , , kent mss. lib. cong. [ ] story, i, . [ ] jefferson to gallatin, sept. , , _works_: ford, xi, footnote to - . [ ] see vol. ii, - , of this work. [ ] see vol. iii, chap, vi, of this work. [ ] hunt: _life of edward livingston_, . [ ] _ib._ . [ ] _annals_, th cong. d sess. . [ ] _annals_, th cong. st and d sess. , - , - , , - , - . [ ] see _supra_, , - . [ ] tyler to jefferson, may , , tyler: _tyler_, i, - . [ ] cyrus griffin was educated in england; was a member of the first legislature of virginia after the declaration of independence; was a delegate to the continental congress in - , and again in - , and was president of that body during the last year of his service. he was made president of the supreme court of admiralty, and held that office until the court was abolished. when the constitution was adopted, and washington elected president, one of his first acts, after the passage of the ellsworth judiciary law, was to appoint judge griffin to the newly created office of judge of the united states court for the district of virginia. it is thus evident that jefferson's statement was not accurate. [ ] jefferson to madison, may , , _works_: ford, xi, - . [ ] jefferson to tyler, may , , tyler: _tyler_, i, - ; also _works_: ford, xi, footnote to - . [ ] jefferson to gallatin, sept. , , _works_: ford, xi, footnote to - . [ ] gideon granger, as jefferson's postmaster-general, had lobbied on the floor of the house for the yazoo bill, offering government contracts for votes. he was denounced by randolph in one of the most scathing arraignments ever heard in congress. (see vol. iii, - , of this work.) [ ] jefferson to madison, oct. , , _works_: ford, xi, - . granger was an eager candidate for the place, and had asked jefferson's support. in assuring him that it was given, jefferson tells granger of his "esteem & approbation," and adds that the appointment of "a firm unequivocating republican" is vital. (jefferson to granger, oct. , , _ib._ footnote to .) [ ] hildreth: _history of the united states_, vi, ; and see adams: _u.s._ v, - . [ ] see vol. iii, - , of this work. [ ] story, i, . [ ] jefferson to wirt, april , , _works_: ford, xi, . [ ] tyler to jefferson, may , , tyler: _tyler_, i, . [ ] tyler to jefferson, may , , tyler: _tyler_, i, - . [ ] brockenbrough, - . [ ] jefferson to wirt, april , , _works_: ford, xi, - . on the batture controversy see hildreth, vi, - . [ ] the articles of both jefferson and livingston are to be found in hall's _american law journal_ (philadelphia, ), vol. v, - , - . a brief but valuable summary of livingston's reply to jefferson is found in hunt: _livingston_, - . for an abstract of jefferson's attack, see randall: _life of thomas jefferson_, iii, - . [ ] see hunt: _livingston_, - . [ ] kent to livingston, may , , hunt: _livingston_, - . kent was appointed chancellor of the state of new york, feb. , . his opinions are contained in _johnson's chancery reports_, to which he refers in this letter. for twenty years livingston fought for what he believed to be his rights to the batture, and, in the end, was successful; but in such fashion that the full value of the property was only realized by his family long after his death. notwithstanding jefferson's hostility, livingston grew in public favor, was elected to the louisiana state legislature and then to congress, where his work was notable. later, in , he was chosen united states senator from that state; and, after serving one term, was appointed secretary of state by president jackson. in this office he prepared most of the president's state papers and wrote jackson's great nullification proclamation in . livingston was then sent as minister to france and, by his brilliant conduct of the negotiations over the french spoliation claims, secured the payment of them. he won fame throughout europe and spanish america by his various works on the penal code and code of procedure. in the learning of the law he was not far inferior to story and kent. aside from one or two sketches, there is no account of his life except an inadequate biography by charles h. hunt. [ ] story, i, . [ ] marshall to story, sept. , , _proceedings, mass. hist. soc._ d series, xiv, ; and see _infra_, - . [ ] marbury _vs._ madison. [ ] marshall to story, july , , _proceedings, mass. hist. soc._ d series, xiv, - . chapter iii international law it was marshall's lot in more than one case to blaze the way in the establishment of rules of international conduct. (john bassett moore.) the defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people. (judge william h. cabell of the virginia court of appeals.) i look upon this question as one which may affect, in its consequences, the permanence of the american union. (justice william johnson of the supreme court.) while marshall unhesitatingly struck down state laws and shackled state authority, he just as firmly and promptly upheld national laws and national authority. in marbury _vs._ madison he proclaimed the power of national courts over congressional legislation so that the denial of that power might not be admitted at a time when, to do so, would have yielded forever the vital principle of judiciary supervision.[ ] but that opinion is the significant exception to his otherwise unbroken practice of recognizing the validity of acts of congress. he carried out this practice even when he believed the law before him to be unwise in itself, injurious to the nation, and, indeed, of extremely doubtful constitutionality. this course was but a part of marshall's nationalist policy. the purpose of his life was to strengthen and enlarge the powers of the national government; to coördinate into harmonious operation its various departments; and to make it in fact, as well as in principle, the agent of a people constituting a single, a strong, and efficient nation. a good example of his maintenance of national laws is his treatment of the embargo, non-importation, and non-intercourse acts. the hostility of the chief justice to those statutes was, as we have seen, extreme; the political party of which he was an ardent member had denounced them as unconstitutional; his closest friends thought them invalid. he himself considered them to be, if within the constitution at all, on the periphery of it;[ ] he believed them to be ruinous to the country and meant as an undeserved blow at great britain upon whose victory over france depended, in his opinion, the safety of america and the rescue of imperiled civilization. nevertheless, not once did marshall, in his many opinions, so much as suggest a doubt of the validity of those measures, when cases came before him arising from them and requiring their interpretation and application. most of these decisions are not now of the slightest historical importance.[ ] his opinions relating to the embargo are, indeed, tiresome and dull, with scarcely a flash of genius to brighten them. now and then, but so rarely that search for it is not worth making, a paragraph blazes with the statement of a great principle. in the case of the ship adventure and her cargo, one such statesmanlike expression illuminates the page. the non-intercourse law forbade importation of british goods "from any foreign port or place whatever." the british ship adventure had been captured by a french frigate and given to the master and crew of an american brig which the frenchmen had previously taken. the americans brought the adventure into norfolk, virginia, and there claimed the proceeds of ship and cargo. the united states insisted that ship and cargo should be forfeited to the government because brought in from "a foreign place." but, said marshall on this point: "the broad navigable ocean, which is emphatically and truly termed the great highway of nations, cannot ... be denominated 'a foreign place.'... the sea is the common property of all nations. it belongs equally to all. none can appropriate it exclusively to themselves; nor is it 'foreign' to any."[ ] where special learning, or the examination of the technicalities and nice distinctions of the law were required, marshall did not shine. of admiralty law in particular he knew little. the preparation of opinions in such cases he usually assigned to story who, not unjustly, has been considered the father of american admiralty law.[ ] also, in knowledge of the intricate law of real estate, story was the superior of marshall and, indeed, of all the other members of the court. story's preëminence in most branches of legal learning was admitted by his associates, all of whom gladly handed over to the youthful justice more than his share of work. story was flattered by the recognition. "my brethren were so kind as to place confidence in my researches,"[ ] he tells his friend judge samuel fay. during the entire twenty-four years that marshall and story were together on the supreme bench the chief justice sought and accepted the younger man's judgment and frankly acknowledged his authority in every variety of legal questions, excepting only those of international law or the interpretation of the constitution. "i wish to consult you on a case which to me who am not versed in admiralty proceedings has some difficulty," marshall writes to story in .[ ] in another letter marshall asks story's help on a "question of great consequence."[ ] again and again he requests the assistance of his learned junior associate.[ ] sometimes he addresses story as though that erudite justice were his superior.[ ] small wonder that john marshall should declare that story's "loss would be irreparable" to the supreme bench, if he should be appointed to the place made vacant by the death of chief justice parker of massachusetts.[ ] only in his expositions of the constitution did marshall take supreme command. if he did anything preëminent, other than the infusing of life into that instrument and thus creating a steadying force in the rampant activities of the young american people, it was his contributions to international law, which were of the highest order.[ ] the first two decades of his labors as chief justice were prolific in problems involving international relations. the capture of neutral ships by the european belligerents; the complications incident to the struggle of spanish provinces in south america for independence; the tangle of conflicting claims growing out of the african slave trade--the unsettled questions arising from all these sources made that period of marshall's services unique in the number, importance, and novelty of cases requiring new and authoritative announcements of the law of nations. an outline of three or four of his opinions in such cases will show the quality of his work in that field of legal science and also illustrate his broad conception of some of the fundamentals of american statesmanship in foreign affairs. his opinion in the case of the schooner exchange lays down principles which embrace much more than was involved in the question immediately before the court[ ]--a practice habitual with marshall and distinguishing him sharply from most jurists. the vessel in controversy, owned by citizens of maryland, was, in , captured by a french warship, armed, and taken into the french service. the capture was made under one of the decrees of napoleon when the war between great britain and france was raging fiercely. this was the rambouillet decree of march , , which because of the non-intercourse act of march , , ordered that american ships, entering french ports, be seized and sold.[ ] the following year the exchange, converted into a french national war-craft under the name of the balaou, manned by a french crew, commanded by a french captain, dennis m. begon, put into the port of philadelphia for repairs of injuries sustained in stress of weather. the former owners of the vessel libeled the ship, alleging that the capture was illegal and demanding their property. in due course this case came before marshall who, on march , , delivered a long and exhaustive opinion, the effect of which is that the question of title to a ship having the character of a man-of-war is not justiciable in the courts of another country. the chief justice begins by avowing that he is "exploring an unbeaten path" and must rely, mainly, on "general principles." a nation's jurisdiction within its own territory is "necessarily exclusive and absolute. it is susceptible of no limitation not imposed by itself." the nation itself must consent to any restrictions upon its "full and complete power ... within its own territories." nations are "distinct sovereignties, possessing equal rights and equal independence"; and, since mutual intercourse is for mutual benefit, "all sovereigns have consented" in certain cases to relax their "absolute and complete jurisdiction within their respective territories.... common usage, and ... common opinion growing out of that usage" may determine whether such consent has been given.[ ] even when a nation has not expressly stipulated to modify its jurisdiction, it would be guilty of bad faith if "suddenly and without previous notice" it violated "the usages and received obligations of the civilized world." one sovereign is not "amenable" to another in any respect, and "can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him." from the facts that sovereigns have "perfect equality and absolute independence," and that mutual intercourse and "an interchange of good offices with each other" are to their common advantage, flows a class of cases in which all sovereigns are "understood to waive the exercise of a part of that complete exclusive territorial jurisdiction" which is "the attribute of every nation." one of these cases "is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory. if he enters that territory with the knowledge and license of its sovereign, that license, although containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation."[ ] the protection of foreign ministers stands "on the same principles." the governments to which they are accredited need not expressly consent that these ministers shall receive immunity, but are "supposed to assent to it." this assent is implied from the fact that, "without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad.... therefore, a consent to receive him, implies a consent" that he shall be exempt from the territorial jurisdiction of the nation to which he is sent.[ ] the armies of one sovereign cannot pass through the territory of another without express permission; to do so would be a violation of faith. marshall here enters into the reasons for this obvious rule. but the case is far otherwise, he says, as to "ships of war entering the ports of a friendly power." the same dangers and injuries do not attend the entrance of such vessels into a port as are inseparable from the march of an army through a country. but as to foreign vessels, "if there be no prohibition," of which notice has been given, "the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to remain in them while allowed to remain, under the protection of the government of the place."[ ] marshall goes into a long examination of whether the rule applies to ships of war, and concludes that it does. so the exchange, now an armed vessel of france, rightfully came into the port of philadelphia and, while there, is under the protection of the american government. in this situation can the title to the vessel be adjudicated by american courts? it cannot, because the schooner "must be considered as having come into the american territory under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country."[ ] over this general question there was much confusion and wrangling in the courts of various countries, but marshall's opinion came to be universally accepted, and is the foundation of international law on that subject as it stands to-day.[ ] scarcely any other judicial act of marshall's life reveals so clearly his moral stature and strength. he was, as he declared, "exploring an unbeaten path," and could have rendered a contrary decision, sustaining it with plausible arguments. had he allowed his feelings to influence his judgment; had he permitted his prejudices to affect his reason; had he heeded the desires of political friends--his opinion in the case of the exchange would have been the reverse of what it was. in the war then desolating europe, he was an intense partisan of great britain and bitterly hostile to france.[ ] he hated napoleon with all the vigor of his being. he utterly disapproved of what he believed to be the administration's truckling, or, at least, partiality, to the emperor. yet here was a ship, captured from americans under the orders of that "satanic" ruler, a vessel armed by him and in his service. the emotions of john marshall must have raged furiously; but he so utterly suppressed them that clear reason and considerations of statesmanship alone controlled him. in the south american revolutions against spain, american sailors generally and, indeed, the american people as a whole, ardently sympathized with those who sought to establish for themselves free and independent governments. often american seamen took active part in the conflicts. on one such occasion three yankee mariners, commissioned by the insurrectionary government of one of the revolting provinces, attacked a spanish ship on the high seas, overawed the crew, and removed a large and valuable cargo. the offending sailors were indicted and tried in the united states court for the district of massachusetts. upon the many questions arising in this case, united states _vs._ palmer,[ ] the judges, story of the supreme court, and john davis, district judge, disagreed and these questions were certified to the supreme court for decision. one of these questions was: what, in international law, is the status of a revolting province during civil war?[ ] in an extended and closely reasoned opinion, largely devoted to the construction of the act of congress on piracy, the chief justice lays down the rule that the relation of the united states to parts of countries engaged in internecine war is a question which must be determined by the political departments of the government and not by the judicial department. questions of this kind "belong ... to those who can declare what the law shall be; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise; to whom are entrusted all its foreign relations.... in such contests a nation may engage itself with the one party or the other; may observe absolute neutrality; may recognize the new state absolutely; or may make a limited recognition of it. "the proceeding in courts must depend so entirely on the course of the government, that it is difficult to give a precise answer to questions which do not refer to a particular nation. it may be said, generally, that if the government remains neutral, and recognizes the existence of a civil war, its courts cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. to decide otherwise, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to arraign the nation to which the court belongs against that party. this would transcend the limits prescribed to the judicial department."[ ] so the yankee "liberators" were set free. another instance of the haling of american citizens before the courts of the united states for having taken part in the wars of south american countries for liberation was the case of the divina pastora. this vessel was captured by a privateer manned and officered by americans in the service of the united provinces of rio de la plata. an american prize crew was placed on board the spanish vessel which put into the port of new bedford in stress of weather and was there libeled by the spanish consul. the united states district court awarded restitution, the circuit court affirmed this decree, and the case was appealed to the supreme court. marshall held that the principle announced in the palmer case governed the question arising from the capture of the divina pastora. "the united states, having recognized the existence of a civil war between spain and her colonies, but remaining neutral, the courts of the union are bound to consider as lawful those acts which war authorizes." captures by privateers in the service of the revolting colonies are "regarded by us as other captures, jure belli, are regarded," unless our neutral rights or our laws or treaties are violated.[ ] the liberal statesman and humanitarian in marshall on matters of foreign policy is often displayed in his international utterances. in the case of the venus,[ ] he dissented from the harsh judgment of the majority of the court, which clearly stated the cold law as it existed at the time, "that the property of an american citizen domiciled in a foreign country became, on the breaking out of war with that country, immediately confiscable as enemy's property, even though it was shipped before he had knowledge of the war."[ ] surely, said marshall, that rule ought not to apply to a merchant who, when war breaks out, intends to leave the foreign country where he has been doing business. whether or not his property is enemy property depends not alone on his residence in the enemy country, but also on his intention to remain after war begins. but it is plain that evidence of his intention can seldom, if ever, be given during peace and that it can be furnished only "after the war shall be known to him." of consequence, "justice requires that subsequent testimony shall be received to prove a pre-existing fact."[ ] it is not true that extended residence in a foreign country in time of peace is evidence of intention to remain there permanently. "the stranger merely residing in a country during peace, however long his stay, ... cannot ... be considered as incorporated into that society, so as, immediately on a declaration of war, to become the enemy of his own."[ ] even the ancient writers on international law concede this principle. but modern commerce has sensibly influenced international law and greatly strengthened the common sense and generally accepted considerations just mentioned. all know, as a matter of everyday experience, that "merchants, while belonging politically to one society, are considered commercially as the members of another."[ ] the real motives of the merchant should be taken into account. of the many cases in which marshall rendered opinions touching upon international law, however, that of the nereid[ ] is perhaps the best known. the descriptions of the arguments in that controversy, and of the court when they were being made, are the most vivid and accurate that have been preserved of the supreme bench and the attorneys who practiced before it at that time. because of this fact an account of the hearing in this celebrated case will be helpful to a realization of similar scenes. the burning of the capitol by the british in left the supreme court without its basement room in that edifice; at the time the case of the nereid was heard, and for two years afterward,[ ] that tribunal held its sessions in the house of elias boudinot caldwell, the clerk of the court, on capitol hill.[ ] marshall and the associate justices sat "inconveniently at the upper end" of an uncomfortable room "unfit for the purpose for which it is used."[ ] in the space before the court were the counsel and other lawyers who had gathered to hear the argument. back of them were the spectators. on the occasion of this hearing, the room was well filled by members of the legal profession and by laymen, for everybody looked forward to a brilliant legal debate. nor were these expectations vain. the question was as to whether a certain cargo owned by neutrals, but found in an enemy ship, should be restored. the claimants were represented by j. ogden hoffman of new york and the universally known and talked of thomas addis emmet, the irish patriot whose pathetic experiences, not less than his brilliant talents, appealed strongly to americans of that day. for the captors appeared alexander j. dallas of pennsylvania and that strangest and most talented advocate of his time, william pinkney of maryland, exquisite dandy and profound lawyer,[ ] affected fop and accomplished diplomat, insolent as he was able, haughty[ ] as he was learned. george ticknor gives a vivid description of the judges and lawyers. marshall's neglected clothing was concealed by his flowing black robes, and his unkempt hair was combed, tied, and "fully powdered." the associate justices were similarly robed and powdered, and all "looked dignified." justice bushrod washington, "a little sharp-faced gentleman with only one eye, and a profusion of snuff distributed over his face," did not, perhaps, add to the impressive appearance of the tribunal; but the noble features and stately bearing of william johnson, the handsome face and erect attitude of young joseph story, and the bald-headed, scholarly looking brockholst livingston, sitting beside marshall, adequately filled in the picture of which he was the center. opinions were read by marshall and story, but evidently they bored the nervous pinkney, who "was very restless, frequently moved his seat, and, when sitting, showed by the convulsive twitches of his face how anxious he was to come to the conflict. at last the judges ceased to read, and he sprang into the arena like a lion who has been loosed by his keepers on the gladiator that awaited him." this large, stout man wore "corsets to diminish his bulk," used "cosmetics ... to smooth and soften a skin growing somewhat wrinkled and rigid with age," and dressed "in a style which would be thought foppish in a much younger man."[ ] his harsh, unmusical voice, grating and high in tone, no less than his exaggerated fashionable attire, at first repelled; but these defects were soon forgotten because of "his clear and forcible manner" of speaking, "his powerful and commanding eloquence, occasionally illuminated with sparkling lights, but always logical and appropriate, and above all, his accurate and discriminating law knowledge, which he pours out with wonderful precision."[ ] [illustration] aloof, affected, overbearing[ ] as he was, pinkney overcame prejudice and compelled admiration "by force of eloquence, logic and legal learning and by the display of naked talent," testifies ticknor, who adds that pinkney "left behind him ... all the public speaking i had ever heard."[ ] emmet, the irish exile, "older in sorrows than in years," with "an appearance of premature age," and wearing a "settled melancholy in his countenance," spoke directly to the point and with eloquence as persuasive as that of pinkney was compelling.[ ] pinkney had insulted emmet in a previous argument, and marshall was so apprehensive that the irish lawyer would now attack his opponent that justice livingston had to reassure the chief justice.[ ] the court was as much interested in the oratory as in the arguments of the counsel. story's letters are rich in comment on the style and manner of the leading advocates. at the hearing of a cause at about the same time as that of the nereid, he tells his wife that pinkney and samuel dexter of massachusetts "have called crowded houses; all the belles of the city have attended, and have been entranced for hours." dexter was "calm, collected, and forcible, appealing to the judgment." pinkney, "vivacious, sparkling, and glowing," although not "as close in his logic as mr. dexter," but "step[ping] aside at will from the path, and strew[ing] flowers of rhetoric around him."[ ] the attendance of women at arguments before the supreme court had as much effect on the performance of counsel at this period as on the oratory delivered in house and senate. one of the belles of washington jotted down what took place on one such occasion. "curiosity led me, ... to join the female crowd who throng the court room. a place in which i think women have no business.... one day mr. pinckney [_sic_] had finished his argument and was just about seating himself when mrs. madison and a train of ladies enter'd,--he recommenced, went over the same ground, using fewer arguments, but scattering more flowers. and the day i was there i am certain he thought more of the female part of his audience than of the court, and on concluding, he recognized their presence, when he said, 'he would not weary the court, by going thro a long list of cases to prove his argument, as it would not only be fatiguing to them, but inimical to the laws of good taste, which _on the present occasion_, (bowing low) he wished to obey."[ ] this, then, is a fairly accurate picture of the supreme court of the united states when the great arguments were made before it and its judgments delivered through the historic opinions of marshall--such the conduct of counsel, the appearance of the justices, the auditors in attendance. always, then, when thinking of the hearings in the supreme court while he was chief justice, we must bear in mind some such scene as that just described. william pinkney, the incomparable and enigmatic, passed away in time; but his place was taken by daniel webster, as able if not so accomplished, quite as interesting from the human point of view, and almost as picturesque. the lively, virile clay succeeded the solid and methodical dexter; and a procession of other eminent statesmen files past our eyes in the wake of those whose distinction for the moment had persuaded their admirers that their equals never would be seen again. it is essential to an understanding of the time that we firmly fix in our minds that the lawyers, no less than the judges, of that day, were publicists as well as lawyers. they were, indeed, statesmen, having deep in their minds the well-being of their nation even more than the success of their clients. briefly stated, the facts in the case of the nereid were as follows: more than a year after our second war with great britain had begun, one manuel pinto of buenos aires chartered the heavily armed british merchant ship, the nereid, to take a cargo from london to the south american city and another back to the british metropolis. the nereid sailed under the protection of a british naval convoy. the outgoing cargo belonged partly to pinto, partly to other spaniards, and partly to british subjects. when approaching madeira an american privateer attacked the nereid and, after a brief fight, captured the british vessel and took her to new york as a prize. the british part of the cargo was condemned without contest. that part belonging to pinto and the other spaniards was also awarded to the captors, but over the earnest opposition of the owners, who appealed to the supreme court. the arguments before the supreme court were long and uncommonly able. those of pinkney and emmet, however, contained much florid "eloquence."[ ] space permits no summary of these addresses; the most that can be given here is the substance of marshall's very long and tedious opinion which is of no historical interest, except that part of it dealing with international law. the chief justice stated this capital question: "does the treaty between spain and the united states subject the goods of either party, being neutral, to condemnation as enemy property, if found by the other in a vessel of an enemy? that treaty stipulates that neutral bottoms shall make neutral goods, but contains no stipulation that enemy bottoms shall communicate the hostile character to the cargo. it is contended by the captors that the two principles are so completely identified that the stipulation of the one necessarily includes the other." it was, said marshall, "a part of the original law of nations" that enemy goods in friendly vessels "are prize of war," and that friendly goods in enemy vessels must be restored if captured. the reason of this rule was that "war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend." just as "the neutral flag constitutes no protection to enemy property," so "the belligerent flag communicates no hostile character to neutral property." the nature of the cargo, therefore, "depends in no degree" upon the ship that carries it.[ ] unless treaties expressly modified this immemorial law of nations there would, declared marshall, "seem to be no necessity" to suppose that an exception was intended. "treaties are formed upon deliberate reflection"; if they do not specifically designate that a particular item is to be taken out of the "ancient rule," it remains within it. "the agreement [in the spanish treaty] that neutral bottoms shall make neutral goods is ... a concession made by the belligerent to the neutral"; as such it is to be encouraged since "it enlarges the sphere of neutral commerce, and gives to the neutral flag a capacity not given to it by the law of nations." on the contrary, a treaty "stipulation which subjects neutral property, found in the bottom of an enemy, to condemnation as prize of war, is a concession made by the neutral to the belligerent. it narrows the sphere of neutral commerce, and takes from the neutral a privilege he possessed under the law of nations." however, a government can make whatever contracts with another that it may wish to make. "what shall restrain independent nations from making such a compact" as they please?[ ] suppose that, regardless of "our treaty with spain, considered as an independent measure, the ordinances of that government would subject american property, under similar circumstances, to confiscation." ought spanish property, for that reason, to be "condemned as prize of war"? that was not a question for courts to decide: "reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citizens, is a political, not a legal measure. it is for the consideration of the government, not of its courts. the degree and the kind of retaliation depend entirely on considerations foreign to this tribunal." the government is absolutely free to do what it thinks best: "it is not for its courts to interfere with the proceedings of the nation and to thwart its views. it is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics." he and his associates had no difficulty, said marshall, in arriving at these conclusions. "the line of partition" between "belligerent rights and neutral privileges" is "not so distinctly marked as to be clearly discernible."[ ] nevertheless, the neutral part of the nereid's cargo must "be governed by the principles which would apply to it had the nereid been a general ship." that she was armed, that she fought to resist capture, did not charge the cargo with the belligerency of the ship, since the owners of the cargo had nothing to do with her armed equipment or belligerent conduct. it is "universally recognized as the original rule of the law of nations" that a neutral may ship his goods on a belligerent vessel. this right is "founded on the plain and simple principle that the property of a friend remains his property wherever it may be found."[ ] that it is lodged in an armed belligerent ship does not take it out of this universal rule. the plain truth is, declares marshall, that "a belligerent has a perfect right to arm in his own defense; and a neutral has a perfect right to transport his goods in a belligerent vessel." such merchandise "does not cease to be neutral" because placed on an armed belligerent ship, nor when that vessel exercises the undoubted belligerent right forcibly to resist capture by the enemy. shipping goods on an armed belligerent ship does not defeat or even impair the right of search. "what is this right of search? is it a substantive and independent right wantonly, and in the pride of power, to vex and harass neutral commerce, because there is a capacity to do so?" no! it is a right "essential ... to the exercise of ... a full and perfect right to capture enemy goods and articles going to their enemy which are contraband of war.... it is a mean justified by the end," and "a right ... ancillary to the greater right of capture." for a neutral to place "his goods in the vessel of an armed enemy" does not connect him with that enemy or give him a "hostile character." armed or unarmed, "it is the right and the duty of the carrier to avoid capture and to prevent a search." neither arming nor resistance is "chargeable to the goods or their owner, where he has taken no part" in either.[ ] pinkney had cited two historical episodes, but marshall waved these aside as of no bearing on the case. "if the neutral character of the goods is forfeited by the resistance of the belligerent vessel, why is not the neutral character of the passengers," who did not engage in the conflict, "forfeited by the same cause?"[ ] in the case of the nereid, the goods of the neutral shipper were inviolable. pinkney had drawn a horrid picture of the ship, partly warlike, partly peaceful, displaying either character as safety or profit dictated.[ ] but, answers marshall, falling into something like the rhetoric of his youth,[ ] "the nereid has not that centaur-like appearance which has been ascribed to her. she does not rove over the ocean hurling the thunders of war while sheltered by the olive branch of peace." her character is not part neutral, part hostile. "she is an open and declared belligerent; claiming all the rights, and subject to all the dangers of the belligerent character." one of these rights is to carry neutral goods which were subject to "the hazard of being taken into port" in case of the vessel's capture--in the event of which they would merely be "obliged to seek another conveyance." the ship might lawfully be captured and condemned; but the neutral cargo within it remained neutral, could not be forfeited, and must be returned to its owners.[ ] but marshall anoints the wounds of the defeated pinkney with a tribute to the skill and beauty of his oratory and argument: "with a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials of peace and war. so exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench, to discover its only imperfection; its want of resemblance."[ ] such are examples of marshall's expositions of international law and typical illustrations of his method in statement and reasoning. his opinion in the case of the nereid is notable, too, because story dissented[ ]--and for joseph story to disagree with john marshall was a rare event. justice livingston also disagreed, and the british high court of admiralty maintained the contrary doctrine. but the principle announced by marshall, that enemy bottoms do not make enemy goods and that neutral property is sacred, remained and still remains the american doctrine. indeed, by the declaration of paris in , the principle thus announced by marshall in is now the accepted doctrine of the whole world. closely akin to the statesmanship displayed in his pronouncements upon international law, was his assertion, in insurance co. _vs._ canter,[ ] that the nation has power to acquire and to govern territory. the facts of this case were that a ship with a cargo of cotton, which was insured, was wrecked on the coast of florida after that territory had been ceded to the united states and before it became a state of the union. the cotton was saved, and taken to key west, where, by order of a local court acting under a territorial law, it was sold at auction to satisfy claims for salvage. part of the cotton was purchased by one david canter, who shipped it to charleston, south carolina, where the insurance companies libeled it. the libelants contended, among other things, that the florida court was not competent to order the auction sale because the territorial act was "inconsistent" with the national constitution. after a sharp and determined contest in the district and circuit courts of the united states at charleston, in which canter finally prevailed, the case was taken to the supreme court.[ ] was the territorial act, under which the local court at key west ordered the auction sale, valid? the answer to that question, said marshall, in delivering the opinion of the court, depends upon "the relation in which florida stands to the united states." since the national government can make war and conclude treaties, it follows that it "possesses the power of acquiring territory either by conquest or treaty.... ceded territory becomes a part of the nation to which it is annexed"; but "the relations of the inhabitants to each other [do not] undergo any change." their allegiance is transferred; but the law "which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state."[ ] the treaty by which spain ceded florida to the united states assures to the people living in that territory "the enjoyment of the privileges, rights, and immunities" of american citizens; "they do not however, participate in political power; they do not share in the government till florida shall become a state. in the meantime florida continues to be a territory of the united states, governed by virtue of that clause in the constitution which empowers congress 'to make all needful rules & regulations respecting the territory or other property belonging to the united states.'"[ ] the florida salvage act is not violative of the constitution. the courts upon which that law confers jurisdiction are not "constitutional courts; ... they are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations respecting the territory belonging to the united states.... although admiralty jurisdiction can be exercised, in the states, in those courts only" which are authorized by the constitution, the same limitation does not extend to the territories. in legislating for them, congress exercises the combined powers of the general and of a state government.[ ] admirable and formative as were marshall's opinions of the law of nations, they received no attention from the people, no opposition from the politicians, and were generally approved by the bar. at the very next term of the supreme court, after the decision in the case of the nereid, an opinion was delivered by story that aroused more contention and had greater effect on the american nation than had all the decisions of the supreme court on international law up to that time. this was the opinion in the famous case of martin _vs._ hunter's lessee. it was story's first exposition of constitutional law and it closely resembles marshall's best interpretations of the constitution. so conspicuous is this fact that the bench and bar generally have adopted the view that the chief justice was, in effect, the spiritual author of this commanding judicial utterance.[ ] but story had now been by marshall's side on the supreme bench for four years and, in his ardent way, had become more strenuously nationalist, at least in expression, than marshall.[ ] that the chief justice himself did not deliver this opinion was due to the circumstance that his brother, james m. marshall, was involved in the controversy; was, indeed, a real party in interest. this fact, together with the personal hatred of marshall by the head of the virginia republican organization, had much to do with the stirring events that attended and followed this litigation. at the time of the fairfax-hunter controversy, virginia was governed by one of the most efficient party organizations ever developed under free institutions. its head was spencer roane, president of the court of appeals, the highest tribunal in the state, an able and learned man of strong prejudices and domineering character. jefferson had intended to appoint roane chief justice of the united states upon the expected retirement of ellsworth.[ ] but ellsworth's timely resignation gave adams the opportunity to appoint marshall. thus roane's highest ambition was destroyed and his lifelong dislike of marshall became a personal and a virulent animosity. roane was supported by his cousin, thomas ritchie, editor of the richmond _enquirer_, the most influential of southern newspapers, and, indeed, one of the most powerful journals in the nation. another of the virginia junto was john taylor of caroline county, a brilliant, unselfish, and sincere man. back of this triumvirate was thomas jefferson with his immense popularity and his unrivaled political sagacity. these men were the commanding officers of a self-perpetuating governmental system based on the smallest political unit, the county courts. these courts were made up of justices of the peace appointed by the governor. vacancies in the county courts were filled only on the recommendation of the remaining members.[ ] these justices of the peace also named the men to be sent to the state legislature which appointed the governor and also chose the members of the court of appeals who held office for life.[ ] a perfect circle of political action was thus formed, the permanent and controlling center of which was the court of appeals. these, then, were the judge, the court, and the party organization which now defied the supreme court of the united states. by one of those curious jumbles by which fate confuses mortals, the excuse for this defiance of nationalism by localism arose from a land investment by marshall and his brother. thus the fact of the purchase of the larger part of the fairfax estate[ ] is woven into the constitutional development of the nation. five years before the marshall syndicate made this investment,[ ] one david hunter obtained from virginia a grant of seven hundred and eighty-eight acres of that part of the fairfax holdings known as "waste and ungranted land."[ ] the grant was made under the various confiscatory acts of the virginia legislature passed during the revolution. these acts had not been carried into effect, however, and in the treaty of peace put an end to subsequent proceedings under them. denny martin fairfax, the devisee of lord fairfax, denied the validity of hunter's grant from the state on the ground that virginia did not execute her confiscatory statutes during the war, and that all lands and property to which those laws applied were protected by the treaty of peace. in , two years after he obtained his grant and eight years after the ratification of the treaty, hunter brought suit in the superior court at winchester[ ] against fairfax's devisee for the recovery of the land. the action was under the ancient form of legal procedure still practiced, and bore the title of "timothy trititle, lessee of david hunter, _vs._ denny fairfax," devisee of thomas, lord fairfax.[ ] the facts were agreed to by the parties and, on april , , the court decided against hunter,[ ] who appealed to the court of appeals at richmond.[ ] two years later, in may, , the case was argued before judges roane, fleming, lyons, and carrington.[ ] meanwhile the jay treaty had been ratified, thus confirming the guarantees of the treaty of peace to the holders of titles of lands which virginia, in her confiscatory acts, had declared forfeited. at the winter session, - , of the virginia legislature, marshall, acting for his brother and brother-in-law, as well as for himself, agreed to execute deeds to relinquish their joint claims "to the waste and unappropriated lands in the northern neck" upon condition that the state would confirm the fairfax title to lands specifically appropriated[ ] by lord fairfax or by his devisee. but for the statement made many years later by judges roane and fleming, of the court of appeals, that this adjustment covered the land claimed by hunter, it would appear that marshall did not intend to include it in the compromise,[ ] even if, as seems improbable, it was a part of the marshall syndicate's purchase; for the decision of the court at winchester had been against hunter, and after that decision and before the compromise, the jay treaty had settled the question of title. on october , , the marshall syndicate, having finally made the remaining payments for that part of the fairfax estate purchased by it--fourteen thousand pounds in all--philip martin, the devisee of denny m. fairfax, executed his warranty to john and james m. marshall and their brother-in-law, rawleigh colston; and this deed was duly recorded in fauquier, warren, frederick, and shenandoah counties, where the fairfax lands were situated.[ ] nearly ten years before this conveyance, james m. marshall separately had purchased from denny martin fairfax large quantities of land in shenandoah and hardy counties where the hunter grant probably was situated.[ ] it would seem that james m. marshall continued in peaceful possession of the land, the title to which the winchester court had decreed to be in the fairfax devisee and not in hunter. when denny m. fairfax died, he devised his estate to his younger brother[ ] major-general philip martin. about the same time he made james m. marshall his administrator, with the will annexed, apparently for the purpose of enabling him to collect old rents.[ ] for thirteen years and six months the case of hunter _vs._ fairfax's devisee slumbered in the drowsy archives of the virginia court of appeals. in the autumn of , however, hunter demanded a hearing of it and, on october , of that year, it was reargued.[ ] hunter was represented by john wickham, then the acknowledged leader of the virginia bar, and by another lawyer named williams.[ ] daniel call appeared for the fairfax devisee. the following spring[ ] the court of appeals decided in favor of hunter, reversing the judgment of the lower court rendered more than sixteen years before. in his opinion roane, revealing his animosity to marshall, declared that the compromise of covered the case. "i can never consent that the appellees,[ ] after having got the benefit thereof, should refuse to submit thereto, or pay the equivalent; the consequence of which would be, that the commonwealth would have to remunerate the appellant for the land recovered from him! such a course cannot be justified on the principles of justice and good faith; and, i confess, i was not a little surprised that the objection should have been raised in the case before us."[ ] to this judgment the fairfax devisee[ ] obtained from the supreme court of the united states[ ] a writ of error to the virginia court under section of the ellsworth judiciary act, upon the ground that the case involved the construction of the treaty of peace with great britain and the jay treaty, the virginia court having held against the right claimed by fairfax's devisee under those treaties.[ ] the supreme court now consisted of two federalists, washington and marshall, and five republicans, johnson, livingston, story, and duval; and todd, who was absent from illness at the decision of this cause. marshall declined to sit during the arguments, or to participate in the deliberations and conclusions of his associates. indeed, throughout this litigation the chief justice may almost be said to have leaned backward. it was with good reason that henry s. randall, the biographer and apologist of jefferson, went out of his way to laud marshall's "stainless private character" and pay tribute to his "austere public and private virtue."[ ] eight years before the hunter-fairfax controversy was first brought to the supreme court, the case of the granville heirs against william r. davie, nathaniel allen, and josiah collins, was tried at the june term, , of the united states court at raleigh, north carolina. marshall, as circuit judge, sat with potter, district judge. the question was precisely that involved in the fairfax title. the grant to lord granville[ ] was the same as that to lord fairfax.[ ] north carolina had passed the same confiscatory acts against alien holdings as virginia.[ ] under these statutes, davie, allen, and collins obtained grants to parts of the granville estate[ ] identical with that of hunter to a part of the fairfax estate in virginia. here was an excellent opportunity for marshall to decide the fairfax controversy once and for all. nowhere was his reputation at that time higher than in north carolina, nowhere was he more admired and trusted.[ ] that his opinion would have been accepted by the state authorities and acquiesced in by the people, there can be no doubt.[ ] but the chief justice flatly stated that he would take no part in the trial because of an "opinion ... formed when he was very deeply interested (alluding to the cause of lord fairfax in virginia). he could not consistently with his duty and the delicacy he felt, give an opinion in the cause."[ ] the case of fairfax's devisee _vs._ hunter's lessee was argued for the former by charles lee of richmond and walter jones of washington, d.c. robert goodloe harper of baltimore appeared for hunter. on both sides the argument was mainly upon the effect on the fairfax title of the virginia confiscatory laws; of the proceedings or failure to proceed under them; and the bearing upon the controversy of the two treaties with great britain. harper, however, insisted that the court consider the statute of virginia which set forth and confirmed the marshall compromise. on march , , story delivered the opinion of the majority of the court, consisting of himself and justices washington, livingston, todd, and duval. johnson, alone, dissented. story held that, since virginia had not taken the prescribed steps to acquire legal possession of the land before the treaty of peace, the state could not do so afterward. "the patent of the original plaintiff [hunter] ... issued improvidently and passed no title whatever." to uphold virginia's grant to hunter "would be selling suits and controversies through the whole country."[ ] it was not necessary, said story, to consider the treaty of peace, since "we are well satisfied that the treaty of [ ] completely protects and confirms the title of denny fairfax."[ ] in his dissenting opinion justice johnson ignored the "compromise" of , holding that the grant by the state to hunter extinguished the right of fairfax's devisee.[ ] he concurred with story and washington, however, in the opinion that, on the face of the record, the case came within section of the judiciary act; that, therefore, the writ of error had properly issued, and that the title must be inquired into before considering "how far the ... treaty ... is applicable to it."[ ] accordingly the mandate of the supreme court was directed to the judges of the virginia court of appeals, instructing them "to enter judgment for the appellant, philip martin [the fairfax devisee]." like all writs of the supreme court, it was, of course, issued in the name of the chief justice.[ ] hot was the wrath of roane and the other judges of virginia's highest court when they received this order from the national tribunal at washington. at their next sitting they considered whether to obey or to defy the mandate. they called in "the members of the bar generally," and the question "was solemnly argued" at richmond for six consecutive days.[ ] on december , , the decision was published. the virginia judges unanimously declined to obey the mandate of the supreme court of the united states. each judge rendered a separate opinion, and all held that so much of section of the national judiciary act as "extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the united states."[ ] but it was not only the virginia court of appeals that now spoke; it was the entire republican partisan machine, intensively organized and intelligently run, that brought its power to bear against the highest tribunal of the nation. beyond all possible doubt, this republican organization, speaking through the supreme judiciary of the state, represented public sentiment, generally, throughout the old dominion. unless this political significance of the opinions of the virginia judges be held of higher value than their legal quality, the account of this historic controversy deserves no more than a brief paragraph stating the legal point decided. the central question was well set forth by judge cabell thus: even where the construction of a treaty is involved in the final decision of a cause by the highest court of a state, that decision being against the title of the party claiming under the treaty, can congress "confer on the supreme court of the united states, a power to _re-examine, by way of appeal or writ of error, the decision of the state court; to affirm or reverse that decision; and in case of reversal, to command the state court to enter and execute a judgment different from that which it had previously rendered_?"[ ] every one of the judges answered in the negative. the opinion of judge cabell was the ablest, and stated most clearly the real issue raised by the virginia court. neither state nor national government is dependent one upon the other, he said; neither can act "_compulsively_" upon the other. controversies might arise between state and national governments, "yet the constitution has provided no umpire, has erected no tribunal by which they shall be settled." therefore, the national court could not oblige the state court to "enter a judgment not its own."[ ] the meaning of the national "constitution, laws and treaties, ... must, in cases coming before state courts, be decided by the state judges, _according to their own judgments, and upon their own responsibility_."[ ] national tribunals belong to one sovereignty; state tribunals to a different sovereignty--neither is "_superior_" to the other; neither can command or instruct the other.[ ] grant that this interpretation of the constitution results in conflicts between state and nation and even deprives the "general government ... of the power of executing its laws and treaties"; even so, "the defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people." the constitution must be amended by the people, not by judicial interpretation;[ ] yet congress, in section of the judiciary act, "attempts, in fact, to make the state courts _inferior federal courts_." the appellate jurisdiction conferred on the supreme court, and the word "_supreme_" itself, had reference to inferior national courts and not to state courts.[ ] judge roane's opinion was very long and discussed extensively every phase of the controversy. he held that, in giving national courts power over state courts, section of the ellsworth judiciary act violated the national constitution. if national courts could control state tribunals, it would be a "plain case of the judiciary of one government correcting and reversing the decisions of that of another."[ ] the virginia court of appeals "is bound, to follow its own convictions ... any thing in the decisions, or supposed decisions, of any other court, to the contrary notwithstanding." let the court at winchester, therefore, be instructed to execute the judgment of the state court of appeals.[ ] such was the open, aggressive, and dramatic defiance of the supreme court of the united states by the court of appeals of virginia. roane showed his opinion to monroe, who approved it and sent it to jefferson at monticello. jefferson heartily commended roane,[ ] whereat the virginia judge was "very much flattered and gratified."[ ] promptly philip martin, through james m. marshall, took the case to the supreme court by means of another writ of error. it now stood upon the docket of that court as martin _vs._ hunter's lessee. again marshall refused to sit in the case. st. george tucker of virginia, one of the ablest lawyers of the south, and samuel dexter, the leader of the massachusetts bar, appeared for hunter.[ ] as harper had done on the first appeal, both tucker and dexter called attention to the fact that the decision of the virginia court of appeals did not rest exclusively upon the treaty of peace, which alone in this case would have authorized an appeal to the supreme court.[ ] story delivered the court's opinion, which was one of the longest and ablest he ever wrote. the constitution was not ordained by the states, but "emphatically ... by 'the people of the united states.'[ ]... its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers, as its own wisdom and the public interests should require."[ ] story then quotes sections and of article iii of the constitution,[ ] and continues: thus is "the voice of the whole american people solemnly declared, in establishing one great department of that government which was, in many respects, national, and in all, supreme." congress cannot disregard this constitutional mandate. at a length which, but for the newness of the question, would be intolerable, story demonstrates that the constitutional grant of judiciary powers is "imperative."[ ] what, then, is the "nature and extent of the appellate jurisdiction of the united states"? it embraces "every case ... not exclusively to be decided by way of original jurisdiction." there is nothing in the constitution to "restrain its exercise over state tribunals in the enumerated cases.... it is the case, ... and not the court, that gives the jurisdiction."[ ] if the appellate power does not extend to state courts having concurrent jurisdiction of specified cases, then that power does "not extend to all, but to some, cases"--whereas the constitution declares that it extends to all other cases than those over which the supreme court is given original jurisdiction.[ ] with great care story shows the "propriety" of this construction.[ ] then, with repetitiousness after the true marshall pattern, he reasserts that the constitution acts on states as well as upon individuals, and gives many instances where the "sovereignty" of the states are "restrained." state judges are not independent "in respect to the powers granted to the united states";[ ] and the appellate power of the nation extends to the state courts in cases prescribed in section of the judiciary act; for the constitution does not limit this power and "we dare not interpose a limitation where the people have not been disposed to create one."[ ] the case decided on the former record, says story, is not now before the court. "the question now litigated is not upon the construction of a treaty, but upon the constitutionality of a statute of the united states, which is clearly within our jurisdiction." however, "from motives of a public nature," the supreme court would "re-examine" the grounds of its former decision.[ ] after such reëxamination, extensive in length and detail, he finds the first decision of the supreme court to have been correct. story thus notices the marshall adjustment of : "if it be true (as we are informed)" that the compromise had been effected, the court could not take "judicial cognizance" of it "unless spread upon the record." aside from the treaty of peace, the fairfax title "was, at all events, perfect under the treaty of ."[ ] in conclusion, story announces: "it is the opinion of the whole court that the judgment of the court of appeals of virginia, rendered on the mandate in this cause, be reversed, and the judgment of the district court, held at winchester, be, and the same is hereby affirmed."[ ] it has been commonly supposed that marshall practically dictated story's two opinions in the fairfax-hunter controversy, and certain writers have stated this to be the fact. as we have seen, story himself, fifteen years afterwards, declared that the chief justice had "concurred in every word of the second opinion"; yet in a letter to his brother concerning the effect of story's opinion upon another suit in the state court at winchester, involving the same question, marshall says: "the case of hunter & fairfax is very absurdly put on the treaty of ."[ ] justice johnson dissented in an opinion as inept and unhappy as his dissent in fletcher _vs._ peck.[ ] he concurs in the judgment of his brethren, but, in doing so, indulges in a stump speech in which nationalism and state rights are mingled in astounding fashion. the supreme court of the united states, he says, "disavows all intention to decide on the right to issue compulsory process to the state courts." to be sure, the supreme court is "supreme over persons and cases as far as our judicial powers extend," but it cannot assert "any compulsory control over the state tribunals." he views "this question as one ... which may affect, in its consequences, the permanence of the american union," since the nation and "one of the greatest states" are in collision. the "general government must cease to exist" if the virginia doctrine shall prevail, but "so firmly" was he "persuaded that the american people can no longer enjoy the blessings of a free government, whenever the state sovereignties shall be prostrated at the feet of the general government," that he "could borrow the language of a celebrated orator, and exclaim: 'i rejoice that virginia has resisted.'"[ ] nevertheless, johnson agrees with the judgment of his associates and, in doing so, delivers a nationalist opinion, stronger if possible than that of story.[ ] the public benefits and the historic importance of the decision was the assertion of the supremacy of the supreme court of the nation over the highest court of any state in all cases where the national constitution, laws and treaties--"the supreme law of the land"--are involved. the decision of the supreme court in martin _vs._ hunter's lessee went further than any previous judicial pronouncement to establish the relation between national courts and state tribunals which now exists and will continue as long as the republic endures. when the news of this, the first constitutional opinion ever delivered by story, got abroad, he was mercilessly assailed by his fellow republicans as a "renegade."[ ] congress refused to increase the salaries of the members of the supreme court,[ ] who found it hard to live on the compensation allowed them,[ ] and story seriously considered resigning from the bench and taking over the baltimore practice of mr. pinkney, who soon was to be appointed minister to russia.[ ] the decision aroused excitement and indignation throughout virginia. roane's popularity increased from the tide water to the valley.[ ] the republican organization made a political issue of the judgment of the national tribunal at washington. judge roane issued his orders to his political lieutenants. the party newspapers, led by the _enquirer_, inveighed against the "usurpation" by this distant supreme court of the united states, a foreign power, an alien judiciary, unsympathetic with virginia, ignorant of the needs of virginians. this conflict between the supreme court of the united states and the court of appeals of virginia opened another phase of that fundamental struggle which war was to decide--a fact without knowledge of which this phase of american constitutional history is colorless. not yet, however, was the astute virginia republican triumvirate ready to unloose the lightnings of virginia's wrath. that must be done only when the whole south should reach a proper degree of emotion. this time was not long to be delayed. within three years marshall's opinion in m'culloch _vs._ maryland was to give roane, ritchie, and taylor their cue to come upon the stage as the spokesmen of virginia and the entire south, as the champions, indeed, of localism everywhere throughout america. important were the parts they played in the drama of marshall's judicial career. footnotes: [ ] see vol. iii, chap. iii, of this work. [ ] this is a fair inference from the statement of joseph story in his autobiography: "i have ever considered the embargo a measure, which went to the utmost limit of constructive power under the constitution. it stands upon the extreme verge of the constitution, being in its very form and terms an unlimited prohibition, or suspension of foreign commerce." (story, i, - .) when it is remembered that after story was made associate justice his views became identical with those of marshall on almost every subject, it would seem likely that story expressed the opinions of the chief justice as well as his own on the constitutionality of the embargo. [ ] see, for instance, the case of william dixon _et al._ _vs._ the united states, brockenbrough, ; united states _vs._ ----, _ib._ ; the case of the fortuna, _ib._ ; the case of the brig caroline, _ib._ ; thomson and dixon _vs._ united states (case of the schooner patriot), _ib._ . [ ] brockenbrough, . [ ] see warren, . [ ] story to fay, april , , story, i, . [ ] marshall to story, may , , _proceedings, mass. hist. soc._ d series, xiv, . this was the case of the little charles. [ ] same to same, july , , _ib._ . [ ] same to same, june , , _ib._ ; sept. , , _ib._ ; dec. , , _ib._ ; june , , _ib._ . [ ] same to same, july , , _ib._ - . [ ] same to same, oct. , , _ib._ . [ ] john bassett moore, in his _digest of international law_, cites marshall frequently and often uses passages from his opinions. henry wheaton, in his _elements of international law_, sometimes quotes marshall's language as part of the text. [ ] professor john bassett moore, in a letter to the author, says that he considers marshall's opinion in this case his greatest in the realm of international law. [ ] _am. state papers, for. rel._ iii, . [ ] cranch, . [ ] cranch, . [ ] _ib._ - . [ ] _ib._ . [ ] cranch, . [ ] see john bassett moore in dillon, i, - . [ ] see _supra_, chap. i. [ ] wheaton, - . [ ] _ib._ . [ ] wheaton, - . [ ] wheaton, - . [ ] cranch, - . [ ] john bassett moore in dillon, i, . [ ] cranch, . [ ] _ib._ - . [ ] _ib._ . [ ] cranch, _et seq._ [ ] until the february session of . this room was not destroyed or injured by the fire, but was closed while the remainder of the capitol was being repaired. in , the court occupied another basement room in the capitol, where it continued to meet until february, , when it returned to its old quarters in the room where the library of the supreme court is now situated. (bryan: _history of the national capital_, ii, .) [ ] _ib._, i, . mr. bryan says that this house still stands and is now known as - pennsylvania avenue, s.e. [ ] ticknor to his father, feb. , ticknor, i, . [ ] "his opinions had almost acquired the authority of judicial decisions." (pinkney: _life of william pinkney_, quotation from robert goodloe harper on title-page.) [ ] "he has ... a dogmatizing absoluteness of manner which passes with the million, ... for an evidence of power; and he has acquired with those around him a sort of papal infallibility." (wirt to gilmer, april , , kennedy, i, .) wirt's estimate of pinkney must have been influenced by professional jealousy, for men like story and marshall were as profoundly affected by the maryland legal genius as were the most emotional spectators. see the criticisms of wirt's comments on pinkney by his nephew, rev. william pinkney, in his _life of william pinkney_, - . [ ] ticknor to his father, feb. [day omitted] , ticknor, i, - . [ ] story to williams, feb. , , story, i, ; and march , , _ib._ . [ ] "at the bar he is despotic and cares as little for his colleagues or adversaries as if they were men of wood." (wirt to gilmer, april , , kennedy, i, .) the late roscoe conkling was almost the reincarnation of william pinkney. in extravagance of dress, haughtiness of manner, retentiveness of memory, power and brilliancy of mind, and genuine eloquence, pinkney and conkling were well-nigh counterparts. [ ] ticknor to his father, feb. , , ticknor, i, . [ ] _ib._ feb. , - . [ ] pinkney, - . [ ] story to his wife, march , , story, i, . [ ] mrs. samuel harrison smith to mrs. kirkpatrick, march , , _first forty years of washington society_: hunt, . pinkney especially would become eloquent, even in an argument of dry, commercial law, if women entered the court-room. "there were ladies present--and pinkney was expected to be eloquent at all events. so, the mode he adopted was to get into his tragical tone in discussing the construction of an act of congress. closing his speech in this solemn tone he took his seat, saying to me, with a smile--'that will do for the ladies.'" (wirt to gilmer, april , , kennedy, i, .) the presence of women affected others no less than pinkney. "webster, wirt, taney ... and emmet, are the combatants, and a bevy of ladies are the promised and brilliant distributors of the prizes," writes story of an argument in the supreme court many years later. (story to fay, march , , story, i, .) [ ] this is illustrated by the passage in pinkney's argument to which marshall in his opinion paid such a remarkable tribute (see _infra_, ). [ ] cranch, - . [ ] cranch, - . [ ] _ib._ - . [ ] cranch, . [ ] cranch, - . [ ] _ib._ - . [ ] "we ... have neutrality, soft and gentle and defenceless in herself, yet clad in the panoply of her warlike neighbours--with the frown of defiance upon her brow, and the smile of conciliation upon her lip--with the spear of achilles in one hand and a lying protestation of innocence and helplessness unfolded in the other. nay, ... we shall have the branch of olive entwined around the bolt of jove, and neutrality in the act of hurling the latter under the deceitful cover of the former.... "call you that neutrality which thus conceals beneath its appropriate vestment the giant limbs of war, and converts the charter-party of the compting-house into a commission of marque and reprisals; which makes of neutral trade a laboratory of belligerent annoyance; which ... warms a torpid serpent into life, and places it beneath the footsteps of a friend with a more appalling lustre on its crest and added venom in its sting." (wheaton: _some account of the life, writings, and speeches of william pinkney_, , .) pinkney frankly said that his metaphors, "hastily conceived and hazarded," were inspired by the presence of women "of this mixed and (for a court of judicature) _uncommon_ audience." (_ib._ - .) except for this exhibition of rodomontade his address was a wonderful display of reasoning and erudition. his brief peroration was eloquence of the noblest order. (see entire speech, wheaton: _pinkney_, - .) [ ] see vol. i, , , of this work. [ ] cranch, - . [ ] _ib._ . [ ] "never in my whole life was i more entirely satisfied that the court were wrong in their judgment. i hope mr. pinkney will ... publish his admirable argument ... it will do him immortal honor." (story to williams, may , , story, i, .) exactly the same question as that decided in the case of the nereid was again brought before the supreme court two years later in the case of the atalanta. ( wheaton, .) marshall merely stated that the former decision governed the case. (_ib._ .) [ ] the american insurance company _et al._ _vs._ david canter, peters, - . [ ] peters, - . [ ] _ib._ . [ ] peters, . [ ] _ib._ . [ ] story wrote george ticknor that marshall "concurred in every word of it." (story to ticknor, jan. , , story, ii, .) [ ] "let us extend the national authority over the whole extent of power given by the constitution. let us have great military and naval schools; an adequate regular army; the broad foundations laid of a permanent navy; a national bank; a national system of bankruptcy; a great navigation act; a general survey of our ports, and appointments of port-wardens and pilots; judicial courts which shall embrace the ... justices of the peace, for the commercial and national concerns of the united states. by such enlarged and liberal institutions, the government of the united states will be endeared to the people.... let us prevent the possibility of a division, by creating great national interests which shall bind us in an indissoluble chain." (story to williams, feb. , , _ib._ i, .) later in the same year story repeated these views and added: "i most sincerely hope that a national newspaper may be established at washington." (story to wheaton, dec. , , _ib._ - .) [ ] professor william e. dodd, in _am. hist. rev._ xii, . [ ] for fuller description of the virginia county court system, see chap. ix of this volume. [ ] on the virginia republican machine, roane, ritchie, etc., see dodd in _am. hist. rev._ xii, - ; and in _branch hist. papers_, june, , ; smith in _ib._ june, , ; thrift in _ib._ june, , ; also dodd: _statesmen of the old south_, _et seq._; anderson, ; turner: _rise of the new west_, ; ambler: _ritchie_, , . [ ] several thousand acres of the fairfax estate were not included in this joint purchase. (see _infra_, .) [ ] - . see vol. ii, - , of this work. [ ] april , . see hunter _vs._ fairfax's devisee, munford, . [ ] for the district composed of frederick, berkeley, hampshire, hardy, and shenandoah counties. [ ] order book, superior court, no. , , office of clerk of circuit court, frederick co., winchester, va. [ ] the judges rendering this decision were st. george tucker and william nelson, jr. (_ib._) [ ] in making out the record for appeal the fictitious name of timothy trititle was, of course, omitted, so that in the court of appeals and in the appeals to the supreme court of the united states the title of the case is hunter _vs._ fairfax's devisee, instead of "timothy trititle, lessee of david hunter," _vs._ fairfax's devisee, and martin _vs._ hunter's lessee. [ ] munford, . [ ] see vol. ii, footnote to , of this work. [ ] the adjustment was made because of the memorial of about two hundred settlers or squatters (mostly germans) on the wild lands who petitioned the legislature to establish title in them. david hunter was not one of these petitioners. marshall agreed to execute deeds "extinguishing" the fairfax title "so soon as the conveyance shall be transmitted to me from mr. fairfax." (marshall to the speaker of the house of delegates, va., nov. , . see vol. ii, footnote to , of this work.) the fairfax deed to the marshalls was not executed until ten years after this compromise. (land causes, , , records in office of clerk of circuit court, fauquier co., va.) [ ] two years later, on october , , the marshall brothers effected a partition of the estate between themselves on the one part and their brother-in-law on the other part, the latter receiving about forty thousand acres. (deed book , , records in office of clerk of circuit court, frederick co., va.) [ ] on august , , denny martin fairfax conveyed to james m. marshall all the fairfax lands in virginia "save and except ... the manor of leeds." (see marshall _vs._ conrad, call, .) thereafter james m. marshall lived in winchester for several years and made many conveyances of land in shenandoah and berkeley counties. for instance, nov. , , to charles lee, deed book , , records in office of clerk of circuit court, frederick county, va.; jan. , , to henry richards, _ib._ ; feb. , , to joseph baker, deed book , _ib._ ; march , , to richard miller, deed book , _ib._ , etc. all of these deeds by james m. marshall and hester, his wife, recite that these tracts and lots are parts of the lands conveyed to james m. marshall by denny martin fairfax on august , . john marshall does not join in any of these deeds. apparently, therefore, he had no personal interest in the tract claimed by hunter. in a letter to his brother marshall speaks of the shenandoah lands as belonging to james m. marshall: "with respect to the rents due denny fairfax before the conveyance to you i should suppose a recovery could only be defeated by the circumstance that they passed to you by the deed conveying the land." (marshall to his brother, feb. , , ms.) at the time when the fairfax heir, philip martin, executed a deed to the marshall brothers and rawleigh colston, conveying to them the manor of leeds, the lands involved in the hunter case had been owned by james m. marshall exclusively for nearly ten years. after the partition with colston, october , , john and james m. marshall, on september , , made a partial division between themselves of leeds manor, and goony run manor in shenandoah county, the latter going to james m. marshall. these records apparently establish the facts that the "compromise" of was not intended to include the land claimed by hunter; that james m. marshall personally owned most of the lands about winchester; and that john marshall had no personal interest whatever in the land in controversy in the litigation under review. this explains the refusal of the supreme court, including even justice johnson, to take notice of the compromise of . (see _infra_, .) [ ] when lord fairfax devised his virginia estate to his nephew, denny martin, he required him to take the name of fairfax. [ ] order book, superior court of frederick co. va., iii, . [ ] munford, . the record states that judge tucker did not sit on account of his near relationship to a person interested. [ ] it should be repeated that david hunter was not one of the destitute settlers who appealed to the legislature in . from the records it would appear that he was a very prosperous farmer and land-owner who could well afford to employ the best legal counsel, as he did throughout the entire litigation. as early as we find him selling to edward beeson acres of land in frederick county. (deed book , , office of clerk of circuit court, frederick county, va.) the same hunter also sold cattle, farming implements, etc., to a large amount. (deeds dated nov. , , deed book cited above, , .) these transactions took place eighteen years before hunter secured from virginia the grant of fairfax lands, twenty-five years before the marshall compromise of , thirty-eight years before hunter employed wickham to revive his appeal against the fairfax devisee, forty-two years prior to the first arguments before the supreme court, and forty-five years before the final argument and decision of the famous case of martin _vs._ hunter's lessee. so, far from being a poor, struggling, submissive, and oppressed settler, david hunter was one of the most well-to-do, acquisitive, determined, and aggressive men in virginia. [ ] april , . [ ] by using the plural "appellees," roane apparently intimates that marshall was personally interested in the case; as we have seen, he was not. there was of record but one appellee, the fairfax devisee. [ ] munford, . the last two lines of roane's language are not clear, but it would seem that the "objection" must have been that the marshall compromise did not include the land claimed by hunter and others, the title to which had been adjudged to be in fairfax's devisee before the compromise. this is, indeed, probably the meaning of the sentence of roane's opinion; otherwise it is obscure. it would appear certain that the fairfax purchasers did make just this objection. certainly they would have been foolish not to have done so if the hunter land was not embraced in the compromise. [ ] since james m. marshall was the american administrator of the will of denny m. fairfax, and also had long possessed all the rights and title of the fairfax heir to this particular land, it doubtless was he who secured the writ of error from the supreme court. [ ] munford, . [ ] cranch, - , . the reader should bear in mind the provisions of section of the judiciary act, since the validity and meaning of it are involved in some of the greatest controversies hereafter discussed. the part of that section which was in controversy is as follows: "a final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the united states, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the united states, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the united states, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the supreme court of the united states upon a writ of error." [ ] randall, ii, - . [ ] for a full and painstaking account of the granville grant, and the legislation and litigation growing out of it, see henry g. connor in _university of pennsylvania law review_, vol. , _et seq._ [ ] see vol. i, , of this work. [ ] connor in _univ. of pa. law rev._ vol. , - . [ ] _ib._ . [ ] see _supra_, . [ ] this highly important fact is proved by the message of governor david stone to the legislature of north carolina in which he devotes much space to the granville litigation and recommends "early provision to meet the justice of the claim of her [north carolina's] citizens for remuneration in case of a decision against the sufficiency of the title derived from herself." the "possibility" of such a decision is apparent "when it is generally understood that a greatly and deservedly distinguished member of that [the supreme] court, has already formed an unfavorable opinion, will probably enforce the consideration that it is proper to make some eventual provision, by which the purchasers from the state, and those holding under that purchase, may have justice done them." (connor in _univ. of pa. law rev._ vol. , - .) from this message of governor stone it is clear that the state expected a decision in favor of the granville heirs, and that the legislature and state authorities were preparing to submit to that decision. [ ] _raleigh register_, june , , as quoted by connor in _univ. of pa. law rev._ vol. , . the jury found against the granville heirs. a mr. london, the granville agent at wilmington, still hoped for success: "the favorable sentiments of judge marshall encourage me to hope that we shall finally succeed," he writes william gaston, the granville counsel. nevertheless, "i think the judge's reasons for withdrawing from the cause partakes more of political acquiescence than the dignified, official independence we had a right to expect from his character. he said enough to convince our opponents he was unfavorable to their construction of the law and, therefore, should not have permitted incorrect principles to harass our clients and create expensive delays. mr. marshall had certainly no interest in our cause, he ought to have governed the proceedings of a court over which he presided, according to such opinion--it has very much the appearance of shirking to popular impressions." london ordered an appeal to be taken to the supreme court of the united states, remarking that "it is no doubt much in our favor what has already dropt from the chief justice." (london to gaston, july , , as quoted by connor in _univ. of pa. law rev._ vol. , .) he was, however, disgusted with marshall. "i feel much chagrin that we are put to so much trouble and expense in this business, and which i fear is in great degree to be attributed to the chief justice's delivery." (same to same, april , , as quoted by connor in _ib._ .) for more than ten years the appeal of the granville heirs from the judgment of the national court for the district of north carolina reposed on the scanty docket of the supreme court awaiting call for argument by counsel. finally on february , , on motion of counsel for the granville heirs, the case was stricken from the docket. the reason for this action undoubtedly was that william gaston, counsel for the granville heirs, had been elected to congress, was ambitious politically, was thereafter elected judge of the supreme court of north carolina; none of these honors could possibly have been achieved had he pressed the granville case. [ ] cranch, . [ ] the jay treaty. see vol. ii, - , of this work. [ ] cranch, . [ ] _ib._ . [ ] _ib._ . [ ] for mandate see munford, - . [ ] march , april to april , . ( munford, .) [ ] _ib._ . [ ] munford, . [ ] _ib._ - . [ ] _ib._ . [ ] _ib._ . [ ] munford, . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] jefferson to roane, oct. , , _works_: ford, xi, - . [ ] roane to jefferson, oct. , , _branch hist. papers_, june, , - . [ ] the employment of these expensive lawyers is final proof of hunter's financial resources. [ ] wheaton, , . [ ] _ib._ . [ ] _ib._ - . [ ] the sections of the constitution pertaining to this dispute are as follows: "article iii, section . the judicial power of the united states, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. "section . the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the united states shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." [ ] wheaton, . [ ] _ib._ - . [ ] _ib._ . [ ] _ib._ . [ ] wheaton, - . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] wheaton, . [ ] marshall to his brother, july , , ms. parts of this long letter are of interest: "although judge white [of the winchester court] will, of course, conform to the decision of the court of appeals against the appellate jurisdiction of the supreme court, & therefore deny that the opinion in the case of fairfax & hunter is binding, yet he must admit that the supreme court is the proper tribunal for expounding the treaties of the united states, & that its decisions on a treaty are binding on the state courts, whether they possess the appellate jurisdiction or not.... the exposition of any state law by the courts of that state, are considered in the courts of all the other states, and in those of the united states, as a correct exposition, not to be reexamined. "the only exception to this rule is when the statute of a state is supposed to violate the constitution of the united states, in which case the courts of the union claim a controuling & supervising power. thus any construction made by the courts of virginia on the statute of descents or of distribution, or on any other subject, is admitted as conclusive in the federal courts, although those courts might have decided differently on the statute itself. the principle is that the courts of every government are the proper tribunals for construing the legislative acts of that government. "upon this principle the supreme court of the united states, independent of its appellate jurisdiction, is the proper tribunal for construing the laws & treaties of the united states; and the construction of that court ought to be received every where as the right construction. the supreme court of the united states has settled the construction of the treaty of peace to be that lands at that time held by british subjects were not escheatable or grantable by a state.... i refer particularly to smith v the state of maryland th cranch jackson v clarke wheaton & orr v hodgson wheaton. the last case is explicit & was decided unanimously, judge johnson assenting. "this being the construction of the highest court of the government which is a party to the treaty is to be considered by all the world as its true construction unless great britain, the other party, should controvert it. the court of appeals has not denied this principle. the dicta of judge roane respecting the treaty were anterior to this constitutional construction of it." [ ] see vol. iii, chap. x, of this work. [ ] wheaton, - . [ ] johnson's opinion was published in the _national intelligencer_, april , , as an answer to roane's argument. (smith in _branch hist. papers_, june, , .) [ ] story, i, . [ ] _annals_, th cong. st sess. , - . a bill was reported march , , increasing the salaries of all government officials. the report of the committee is valuable as showing the increased cost of living. (_ib._) [ ] nearly three years after the decision of martin _vs._ hunter's lessee, story writes that the justices of the supreme court are "_starving_ in splendid poverty." (story to wheaton, dec. , , story, i, .) [ ] story to white, feb. , , story, i, ; and see story to williams, may , , _ib._ . [ ] ambler: _sectionalism in virginia_, . chapter iv financial and moral chaos like a dropsical man calling out for water, water, our deluded citizens are calling for more banks. (jefferson.) merchants are crumbling to ruin, manufactures perishing, agriculture stagnating and distress universal. (john quincy adams.) if we can believe our democratic editors and public declaimers it [bank of the united states] is a hydra, a cerberus, a gorgon, a vulture, a viper. (william harris crawford.) where one prudent and honest man applies for [bankruptcy] one hundred rogues are facilitated in their depredations. (hezekiah niles.) merchants and traders are harassed by twenty different systems of laws, prolific in endless frauds, perjuries and evasions. (harrison gray otis.) the months of february and march, , are memorable in american history, for during those months john marshall delivered three of his greatest opinions. all of these opinions have had a determinative effect upon the political and industrial evolution of the people; and one of them[ ] has so decisively influenced the growth of the nation that, by many, it is considered as only second in importance to the constitution itself. at no period and in no land, in so brief a space of time, has any other jurist or statesman ever bestowed upon his country three documents of equal importance. like the other fundamental state papers which, in the form of judicial opinions, marshall gave out from the supreme bench, those of were compelled by grave and dangerous conditions, national in extent. it was a melancholy prospect over which marshall's broad vision ranged, when from his rustic bench under his trees at richmond, during the spring and autumn of , he surveyed the situation in which the american people found themselves. it was there, or in the quiet of the blue ridge mountains where he spent the summer months, that he formed the outlines of those charts which he was soon to present to the country for its guidance; and it was there that at least one of them was put on paper. the interpretation of john marshall as the constructing architect of american nationalism is not satisfactorily accomplished by a mere statement of his nationalist opinions and of the immediate legal questions which they answered. indeed, such a narrative, by itself, does not greatly aid to an understanding of marshall's immense and enduring achievements. not in the narrow technical points involved, some of them diminutive and all uninviting in their formality; not in the dreary records of the law cases decided, is to be found the measure of his monumental service to the republic or the meaning of what he did. the state of things which imperatively demanded the exercise of his creative genius and the firm pressure of his steadying hand must be understood in order to grasp the significance of his labors. when the supreme court met in february, , almost the whole country was in grievous turmoil; for nearly three years conditions had been growing rapidly worse and were now desperate. poverty, bankruptcy, chicanery, crime were widespread and increasing. thrift, prudence, honesty, and order had seemingly been driven from the hearts and minds of most of the people; while speculation, craft, and unscrupulous devices were prevalent throughout all but one portion of the land. only new england had largely escaped the universal curse that appeared to have fallen upon the united states; and even that section was not untouched by the economic and social plague that had raged and was becoming more deadly in every other quarter. while it is true that a genuine democratizing evolution was in progress, this fact does not explain the situation that had grown up throughout the country. neither does the circumstance that the development of land and resources was going forward in haphazard fashion, at the hands of a new population hard pressed for money and facilities for work and communication, reveal the cause of the appalling state of affairs. it must frankly be said of the conditions, to us now unbelievable, that they were due partly to the ignorance, credulity, and greed of the people; partly to the spirit of extravagance; partly to the criminal avarice of the financially ambitious; partly to popular dread of any great centralized moneyed institution, however sound; partly to that pest of all democracies, the uninformed and incessant demagogue whipping up and then pandering to the passions of the multitude; partly to that scarcely less dangerous creature in a republic, the fanatical doctrinaire, proclaiming the perfection of government by word-logic and insisting that human nature shall be confined in the strait-jacket of verbal theory. from this general welter of moral and economic debauchery, localism had once more arisen and was eagerly reasserting its domination. the immediate cause of the country's plight was an utter chaos in banking. seldom has such a financial motley ever covered with variegated rags the backs of a people. the confusion was incredible; but not for a moment did the millions who suffered, blame themselves for their tragic predicament. now praising banks as unfailing fountains of money, now denouncing banks as the sources of poisoned waters, clamoring for whatever promised even momentary relief, striking at whatever seemingly denied it, the people laid upon anything and anybody but themselves and their improvidence, the responsibility for their distress. hamilton's financial plans[ ] had proved to be as successful as they were brilliant. the bank of the united states, managed, on the whole, with prudence, skill, and honesty,[ ] had fulfilled the expectations of its founders. it had helped to maintain the national credit by loans in anticipation of revenue; it had served admirably, and without compensation, as an agent for collecting, safeguarding, and transporting the funds of the government; and, more important than all else, it had kept the currency, whether its own notes or those of private banks, on a sound specie basis. it had, indeed, "acted as the general guardian of commercial credit" and, as such, had faithfully and wisely performed its duties.[ ] but the success of the bank had not overcome the original antagonism to a great central moneyed institution. following the lead of jefferson, who had insisted that the project was unconstitutional,[ ] madison, in the first congress, had opposed the bill to incorporate the first bank of the united states. congress had no power, he said, to create corporations.[ ] after twelve years of able management, and in spite of the good it had accomplished, jefferson still considered it, potentially, a monster that might overthrow the republic. "this institution," he wrote in the third year of his presidency, "is one of the most deadly hostility existing, against the principles & form of our constitution.... an institution like this, penetrating by it's branches every part of the union, acting by command & in phalanx, may, in a critical moment, upset the government.... what an obstruction could not this bank of the u.s., with all it's branch banks, be in time of war?"[ ] the fact that most of the stock of the bank had been bought up by englishmen added to the unpopularity of the institution.[ ] another source of hostility was the jealousy of state banks, much of the complaint about "unconstitutionality" and "foreign ownership" coming from the agents and friends of these local concerns. the state banks wished for themselves the profits made by the national bank and its branches, and they chafed under the wise regulation of their note issues, which the existence of the national system compelled. for several years these state banks had been growing in number and activity.[ ] when, in , the directors of the bank of the united states asked for a renewal of its charter, which would expire in , and when the same request was made of congress in , opposition poured into the capital from every section of the country. the great bank was a british institution, it was said; its profits were too great; it was a creature of federalism, brought forth in violation of the constitution. its directors, officers, and american stockholders were federalists; and this fact was the next most powerful motive for the overthrow of the first bank of the united states.[ ] petitions to congress denounced it and demanded its extinction. one from pittsburgh declared "that your memorialists are 'the people of the united states,'" and asserted that the bank "held in bondage thousands of our citizens," kept the government "in duress," and subsidized the press, thus "thronging" the capital with lobbyists who in general were the "head-waters of corruption."[ ] the legislatures of many states "instructed" their senators and "earnestly requested" their representatives in congress to oppose a new charter for the expiring national institution. such resolutions came from pennsylvania, from virginia, from massachusetts.[ ] the state banks were the principal contrivers of all this agitation.[ ] for instance, the bank of virginia, organized in , had acquired great power and, but for the branch of the national concern at richmond, would have had almost the banking monopoly of that state. especially did the virginia bank desire to become the depository of national funds[ ]--a thing that could not be accomplished so long as the bank of the united states was in existence.[ ] dr. john brockenbrough, the relative, friend, and political associate of spencer roane and thomas ritchie, was the president of this state institution, which was a most important part of the republican machine in virginia. considering the absolute control held by this political organization over the legislature, it seems probable that the state bank secured the resolution condemnatory of the bank of the united states. certainly the general assembly would not have taken any action not approved by brockenbrough, roane, and ritchie. ritchie's _enquirer_ boasted that it "was the first to denounce the renewal of the bank charter."[ ] in the senate, william h. crawford boldly charged that the instructions of the state legislatures were "induced by motives of avarice";[ ] and senator giles was plainly embarrassed in his attempt to deny the indictment.[ ] nearly all the newspapers were controlled by the state banks;[ ] they, of course, denounced the national bank in the familiar terms of democratic controversy and assailed the character of every public man who spoke in behalf of so vile and dangerous an institution.[ ] it was also an ideal object of assault for local politicians who bombarded the bank with their usual vituperation. all this moved senator crawford, in his great speech for the rechartering of the bank, to a scathing arraignment of such methods.[ ] in spite of conclusive arguments in favor of the bank of the united states on the merits of the question, the bill to recharter that institution was defeated in the house by a single vote,[ ] and in the senate by the casting vote of the vice-president, the aged george clinton.[ ] thus, on the very threshold of the war of , the government was deprived of this all but indispensable fiscal agent; immense quantities of specie, representing foreign bank holdings, were withdrawn from the country; and the state banks were given a free hand which they soon used with unrestrained license. these local institutions, which, from the moment the failure of the rechartering of the national bank seemed probable, had rapidly increased in number, now began to spring up everywhere.[ ] from the first these concerns had issued bills for the loan of which they charged interest. thus banking was made doubly profitable. even those banks, whose note issues were properly safeguarded, achieved immense profits. banking became a mania. "the banking infatuation pervades all america," wrote john adams in . "our whole system of banks is a violation of every honest principle of banks.... a bank that issues paper at interest is a pickpocket or a robber. but the delusion will have its course. you may as well reason with a hurricane. an aristocracy is growing out of them, that will be as fatal as the feudal barons, if unchecked in time.... think of the number, the offices, stations, wealth, piety and reputations of the persons in all the states, who have made fortunes by these banks, and then you will see how deeply rooted the evil is. the number of debtors who hope to pay their debts by this paper united with the creditors who build pallaces in our cities, and castles for country seats, by issuing this paper form too impregnable a phalanx to be attacked by any thing less disciplined than roman legions."[ ] such was the condition even before the expiration of the charter of the first bank. but, when the restraining and regulating influence of that conservative and ably managed institution was removed altogether, local banking began a course that ended in a mad carnival of roguery, to the ruin of legitimate business and the impoverishment and bankruptcy of hundreds of thousands of the general public. the avarice of the state banks was immediately inflamed by the war necessities of the national government. desperate for money, the treasury exchanged six per cent united states bonds for the notes of state banks.[ ] the government thus lost five million dollars from worthless bank bills.[ ] these local institutions now became the sole depositories of the government funds which the national bank had formerly held.[ ] sources of gain of this kind were only extra inducements to those who, by wit alone, would gather quick wealth to set up more local banks. but other advantages were quite enough to appeal to the greedy, the dishonest, and the adventurous. liberty to pour out bills without effective restriction as to the amount or security; to loan such "rags" to any who could be induced to borrow; to collect these debts by foreclosure of mortgages or threats of imprisonment of the debtors--these were some of the seeds from which grew the noxious financial weeds that began to suck the prosperity of the country. when the first bank of the united states was organized there were only three state banks in the country. by , there were twenty-eight; by , they had more than trebled,[ ] and most of the eighty-eight state institutions in existence when the first national bank was destroyed had been organized after it seemed probable that it would not be granted a recharter. so rapidly did they increase and so great were their gains that, within little more than a year from the demise of the first bank of the united states, john adams records: "the profits of our banks to the advantage of the few, at the loss of the many, are such an enormous fraud and oppression as no other nation ever invented or endured. who can compute the amount of the sums taken out of the pocketts of the simple and hoarded in the purses of the cunning in the course of every year?... if rumour speaks the truth boston has and will emulate philadelphia in her proportion of bankruptcies."[ ] yet boston and philadelphia banks were the soundest and most carefully conducted of any in the whole land. if adams spoke extravagantly of the methods and results of the best managed financial institutions of the country, he did not exaggerate conditions elsewhere. from connecticut to the mississippi river, from lake erie to new orleans, the craze for irresponsible banking spread like a contagious fever. the people were as much affected by the disease as were the speculators. the more "money" they saw, the more "money" they wanted. bank notes fell in value; specie payments were suspended; rates of exchange were in utter confusion and constantly changing. from day to day no man knew, with certainty, what the "currency" in his pocket was worth. at vincennes, indiana, in , william faux records: "i passed away my dollar note of the rotten bank of harmony, pennsylvania, for five dollars only!"[ ] the continuance of the war, of course, made this financial situation even worse for the government than for the people. it could not negotiate its loans; the public dues were collected with difficulty, loss, and delay; the treasury was well-nigh bankrupt. "the department of state was so bare of money as to be unable to pay even its stationery bill."[ ] in , when on the verge of financial collapse, the administration determined that another bank of the united states was absolutely necessary to the conduct of the war.[ ] scheme after scheme was proposed, wrangled over, and defeated. one plan for a bank[ ] was beaten "after a day of the most tumultuous proceedings i ever saw," testifies webster.[ ] another bill passed,[ ] but was vetoed by president madison because it could not aid in the rehabilitation of the public credit, nor "provide a circulating medium during the war, nor ... furnish loans, or anticipate public revenue."[ ] when the war was over, madison timidly suggested to congress the advisability of establishing a national bank "that the benefits of a uniform national currency should be restored."[ ] thus, on april , , two years after congress took up the subject, a law finally was enacted and approved providing for the chartering and government of the second bank of the united states.[ ] within four years, then, of the refusal of congress to recharter the sound and ably managed first bank of the united states, it was forced to authorize another national institution, endowed with practically the same powers possessed by the bank which congress itself had so recently destroyed.[ ] but the second establishment would have at least one advantage over the first in the eyes of the predominant political party--a majority of the officers and directors of the bank would be republicans.[ ] during their four years of "financial liberty" the number of state banks had multiplied. those that could be enumerated in were .[ ] in addition to these, scores of others, most of them "pure swindles,"[ ] were pouring out their paper.[ ] even if they had been sound, not half of them were needed.[ ] nearly all of them extended their wild methods. "the banks have been going on, as tho' the day of reckoning would never come," wrote rufus king of conditions in the spring of .[ ] the people themselves encouraged these practices. the end of the war released an immense quantity of english goods which flooded the american market. the people, believing that devastated europe would absorb all american products, and beholding a vision of radiant prosperity, were eager to buy. a passion for extravagance swept over america;[ ] the country was drained of specie by payments for exports.[ ] then came a frenzy of speculation. "the people were wild; ... reason seemed turned topsy turvey."[ ] the multitude of local banks intensified both these manias by every device that guile and avarice could suggest. every one wanted to get rich at the expense of some one else by a mysterious process, the nature of which was not generally understood beyond the fact that it involved some sort of trickery. did any man's wife and family want expensive clothing--the local bank would loan him bills issued by itself, but only on good security. did any man wish to start some unfamiliar and alluring enterprise by which to make a fortune speedily--if he had a farm to mortgage, the funds were his. was a big new house desired? the money was at hand--nothing was required to get it but the pledge of property worth many times the amount with which the bank "accommodated" him.[ ] indeed, the local banks urged such "investments," invited people with property to borrow, laid traps to ensnare them. "what," asked hezekiah niles, "is to be the end of such a business?--mammoth fortunes for the _wise_, wretched poverty for the _foolish_.... lands, lots, houses--stock, farming utensils and household furniture, under custody of the sheriff--speculation in a coach, honesty in the jail."[ ] many banks sent agents among the people to hawk their bills. these were perfectly good, the harpies would assure their victims, but they could now be had at a heavy discount; to buy them was to make a large profit. so the farmer, the merchant, even the laborer who had acquired a dwelling of his own, were induced to mortgage their property or sell it outright in exchange for bank paper that often proved to be worthless.[ ] frequently these local banks ensnared prosperous farmers by the use of "cappers." niles prints conspicuously as "a true story"[ ] the account of a certain farmer who owned two thousand acres, well improved and with a commodious residence and substantial farm buildings upon it. through his land ran a stream affording good water power. he was out of debt, prosperous, and contented. one day he went to a town not many miles from his plantation. there four pleasant-mannered, well-dressed men made his acquaintance and asked him to dinner, where a few directors of the local bank were present. the conversation was brought around to the profits to be made in the milling business. the farmer was induced to borrow a large sum from the local bank and build a mill, mortgaging his farm to secure the loan. the mill was built, but seldom used because there was no work for it to do; and, in the end, the two thousand acres, dwelling, buildings, mill, and all, became the property of the bank directors.[ ] this incident is illustrative of numerous similar cases throughout the country, especially in the west and south. niles thus describes banking methods in general: "at first they throw out money profusely, to all that they believe are _ultimately_ able to return it; nay, they wind round some like serpents to tempt them to borrow--... they then affect to draw in their notes, ... money becomes scarce, and notes of hand are _shaved_ by them to meet bank engagements; it gets worse--the _consummation originally_ designed draws nigh, and farm after farm, lot after lot, house after house, are sacrificed."[ ] so terrifying became the evil that the legislature of new york, although one of the worst offenders in the granting of bank charters, was driven to appoint a committee of investigation. it reported nothing more than every honest observer had noted. money could not be transmitted from place to place, the committee said, because local banks had "engrossed the whole circulation in their neighborhood," while their notes abroad had depreciated. the operations of the bankers "immediately within their vicinity" were ruinous: "designing, unprincipled speculator[s] ... impose on the credulity of the honest, industrious, unsuspecting ... by their specious flattery and misrepresentation, obtaining from them borrowed notes and endorsements, until the ruin is consummated, and their farms are sold by the sheriff."[ ] some banks committed astonishing frauds, "such as placing a partial fund in a distant bank to redeem their paper" and then "issuing an emission of notes signed with ink of a different shade, at the same time giving secret orders to said bank not to pay the notes thus signed." bank paper, called "_facility notes_," was issued, but "payable in neither money, country produce, or any thing else that has body or shape." bank directors even terrorized merchants who did not submit to their practices. in one typical case all persons were denied discounts who traded at a certain store, the owner of which had asked for bank bills that would be accepted in new york city, where they had to be remitted--this, too, when the offending merchant kept his account at the bank. the committee describes, as illustrative of banking chicanery, the instance of "an aged farmer," owner of a valuable farm, who, "wishing to raise the sum of one thousand dollars, to assist his children, was told by a director, he could get it out of the bank ... and that he would endorse his note for him." thus the loan was made; but, when the note expired, the director refused to obtain a renewal except upon the payment of one hundred dollars in addition to the discount. at the next renewal the same condition was exacted and also "a judgment ... in favor of said director, and the result was, his farm was soon after sold without his knowledge by the sheriff, and purchased by the said director for less than the judgment."[ ] before the second bank of the united states opened its doors for business, the local banks began to gather the first fruits of their labors. by the end of suits upon promissory notes, bonds, and mortgages, given by borrowers, were begun. three fourths of all judgments rendered in the spring of by the supreme court of the state of new york alone were "in favor of banks, against real property."[ ] suits and judgments of this kind grew ever more frequent. in such fashion was the country hastened toward the period of bankruptcy. yet the people in general still continued to demand more "money." the worse the curse, the greater the floods of it called for by the body of the public. "like a dropsical man calling out for water, water, our deluded citizens are clamoring for more banks.... we are now taught to believe that legerdemain tricks upon paper can produce as solid wealth as hard labor in the earth," wrote jefferson when the financial madness was becoming too apparent to all thoughtful men.[ ] practically no restrictions were placed upon these financial freebooters,[ ] while such flimsy regulations as their charters provided were disregarded at will.[ ] there was practically no publicity as to the management and condition of even the best of these banks;[ ] most of them denied the right of any authority to inquire into their affairs and scorned to furnish information as to their assets or methods.[ ] for years the legislatures of many states were controlled by these institutions; bank charters were secured by the worst methods of legislative manipulation; lobbyists thronged the state capitols when the general assemblies were in session; few, if any, lawmaking bodies of the states were without officers, directors, or agents of local banks among their membership.[ ] thus bank charters were granted by wholesale and they were often little better than permits to plunder the public. during the session of the virginia legislature of - , twenty-two applications for bank charters were made.[ ] at nearly the same time twenty-one banks were chartered in the newly admitted and thinly peopled state of ohio.[ ] the following year forty-three new banks were authorized in kentucky.[ ] in december, , james flint found in kentucky, ohio, and tennessee a "vast host of fabricators, and venders of base money."[ ] all sorts of "companies" went into the banking business. bridge companies, turnpike companies, manufacturing companies, mercantile companies, were authorized to issue their bills, and this flood of paper became the "money" of the people; even towns and villages emitted "currency" in the form of municipal notes. the city of richmond, virginia, in , issued "small paper bills for change, to the amount of $ , ."[ ] often bills were put in circulation of denominations as low as six and one fourth cents.[ ] rapidly the property of the people became encumbered to secure their indebtedness to the banks. a careful and accurate scotch traveler thus describes their methods: "by lending, and otherwise emitting their engravings, they have contrived to mortgage and buy much of the property of their neighbours, and to appropriate to themselves the labour of less moneyed citizens.... bankers gave in exchange for their paper, that of _other banks, equally good with their own_.... the holder of the paper may comply in the barter, or keep the notes ...; but he finds it too late to be delivered from the snare. the people committed the lapsus, when they accepted of the gew-gaws clean from the press.... the deluded multitude have been basely duped."[ ] yet, says flint, "every one is afraid of bursting the bubble."[ ] as settlers penetrated the ohio and indiana forests and spread over the illinois prairies, the banks went with them and "levied their contributions on the first stroke of the axe."[ ] kentucky was comparatively well settled and furnished many emigrants to the newer regions north of the ohio river. rough log cabins were the abodes of nearly all of the people[ ] who, for the most part, lived roughly,[ ] drank heavily,[ ] were poorly educated.[ ] they were, however, hospitable, generous, and brave; but most of them preferred to speculate rather than to work.[ ] illness was general, sound health rare.[ ] "i hate the prairies.... i would not have any of them of a gift, if i must be compelled to live on them," avowed an english emigrant.[ ] in short, the settlers reproduced most of the features of the same movement in the preceding generation.[ ] there was the same squalor, suspicion, credulity, and the same combativeness,[ ] the same assertion of superiority over every other people on earth,[ ] the same impatience of control, particularly from a source so remote as the national government.[ ] "the people speak and seem as if they were without a government, and name it only as a bugbear," wrote william faux.[ ] moreover, the inhabitants of one section knew little or nothing of what those in another were doing. "we are as ignorant of the temper prevailing in the eastern states as the people of new holland can be," testifies john randolph in .[ ] even a generation after randolph made this statement, frederick marryat records that "the united states ... comprehend an immense extent of territory, with a population running from a state of refinement down to one of positive barbarism.... the inhabitants of the cities ... know as little of what is passing in arkansas and alabama as a cockney does of the manners and customs of ... the isle of man."[ ] communities were still almost as segregated as were those of a half-century earlier.[ ] marryat observes, a few years later, that "to write upon america _as a nation_ would be absurd, for nation ... it is not."[ ] again, he notes in his journal that "the mass of the citizens of the united states have ... a very great dislike to all law except ... the decision of the majority."[ ] these qualities furnished rich soil for cultivation by demagogues, and small was the husbandry required to produce a sturdy and bellicose sentiment of localism. although the bills of the bank of the united states were sought for,[ ] the hostility to that national institution was increased rather than diminished by the superiority of its notes over those of the local money mills. no town was too small for a bank. the fact that specie payments were not exacted "indicated every village in the united states, where there was a 'church, a tavern and a blacksmith's shop,' as a suitable site for a _bank_, and justified any persons in establishing one who could raise enough to pay the _paper maker_ and _engraver_."[ ] not only did these chartered manufactories of currency multiply, but private banks sprang up and did business without any restraint whatever. niles was entirely within the truth when he declared that nothing more was necessary to start a banking business than plates, presses, and paper.[ ] often the notes of the banks, private or incorporated, circulated only in the region where they were issued.[ ] in the "currency" of the local banks of cincinnati was "mere waste paper ... out of the city."[ ] the people had to take this local "money" or go without any medium of exchange. when the notes of distant banks were to be had, the people did not know the value of them. "notes current in one part, are either refused, or taken at a large discount, in another," wrote flint in .[ ] in the cities firms dealing with bank bills printed lists of them with the market values, which changed from day to day.[ ] sometimes the county courts fixed rates of exchange; for instance, the county court of norfolk county, virginia, in march, , decreed that the notes of the bank of virginia and the bank of south carolina were worth their face value, while the bills of baltimore and philadelphia and the district of columbia were below par.[ ] merchants had to keep lists on which was estimated the value of bank bills and to take chances on the constant fluctuations of them.[ ] "of upwards of a hundred banks that lately figured in indiana, ohio, kentucky, and tennessee, the money of two is now only received in the land-office, in payment for public lands," testifies flint, writing from jeffersonville, indiana, in march, . "discount," he adds, "varies from thirty to one hundred per cent."[ ] by september, , two thirds of the bank bills sent to niles in payment for the _register_ could not "be passed for money."[ ] "chains" of banks were formed by which one member of the conspiracy would redeem its notes only by paying out the bills of another. thus, if a man presented at the counter of a certain bank the bills issued by it, he was given in exchange those of another bank; when these were taken to this second institution, they were exchanged for the bills of a third bank, which redeemed them with notes of the first.[ ] for instance, bigelow's bank at jeffersonville, indiana, redeemed its notes with those of piatt's bank at cincinnati, ohio; this, in turn, paid its bills with those of a vincennes sawmill and the sawmill exchanged its paper for that of bigelow's bank.[ ] the redemption of their bills by the payment of specie was refused even by the best state banks, and this when the law positively required it. niles estimated in april, , that, although many banks were sound and honestly conducted, there were not "half a dozen banks in the united states that are able to pay their debts _as they are payable_."[ ] all this john marshall saw and experienced. in , george fisher[ ] presented to the bank of virginia ten of its one-hundred-dollar notes for redemption, which was refused. after several months' delay, during which the bank officials ignored a summons to appear in court, a distringas[ ] was secured. the president of the bank, dr. brockenbrough, resisted service of the writ, and the "sheriff then called upon the by-standers, as a _posse comitatus_," to assist him. among these was the chief justice of the united states. fisher had hard work in finding a lawyer to take his case; for months no member of the bar would act as his attorney.[ ] for in virginia as elsewhere--even less than in many states--the local banks were the most lucrative clients and the strongest political influence; and they controlled the lawyers as well as the press. in june, , for instance, a business man in pennsylvania had accumulated several hundred dollars in bills of a local bank which refused to redeem them in specie or better bills. three justices of the peace declined to entertain suit against the bank and no notary public would protest the bills. in maryland, at the same time, a man succeeded in bringing an action against a bank for the redemption of some of its bills; but the cashier, while admitting his own signature on the notes, swore that he could not identify that of the bank's president, who had absented himself.[ ] counterfeiting was widely practiced and, for a time, almost unpunished; a favorite device was the raising of notes, usually from five to fifty dollars. bills were put in circulation purporting to have been issued by distant banks that did not exist, and never had existed. in a single week of june, , the country newspapers contained accounts of twenty-eight cases of these and similar criminal operations.[ ] sometimes a forger or counterfeiter was caught; at plattsburg, new york, one of these had twenty different kinds of fraudulent notes, "well executed."[ ] in august, , niles estimates that "the notes of at least one hundred banks in the united states are counterfeited."[ ] by the end of the year an organized gang of counterfeiters, forgers, and distributors of their products covered the whole country.[ ] counterfeits of the marine bank of baltimore alone were estimated at $ , , ;[ ] one-hundred-dollar notes of the bank of louisiana were scattered far and wide.[ ] scarcely an issue of any newspaper appeared without notices of these depredations;[ ] one half of the remittances sent niles from the west were counterfeit.[ ] into this chaos of speculation, fraud, and financial fiction came the second bank of the united states. the management of it, at the beginning, was adventurous, erratic, corrupt; its officers and directors countenanced the most shameful manipulation of the bank's stock; some of them participated in the incredible jobbery.[ ] nothing of this, however, was known to the country at large for many months,[ ] nor did the knowledge of it, when revealed, afford the occasion for the popular wrath that soon came to be directed against the national bank. this public hostility, indeed, was largely produced by measures which the bank took to retrieve the early business blunders of its managers. these blunders were appalling. as soon as it opened in , the bank began to do business on the inflated scale which the state banks had established; by over-issue of its notes it increased the inflation, already blown to the bursting point. except in new england, where its loans were moderate and well secured, it accommodated borrowers lavishly. the branches were not required to limit their business to a fixed capital; in many cases, the branch officers and directors, incompetent and swayed by local interest and feeling,[ ] issued notes as recklessly as did some of the state banks. in the west particularly, and also in the south, the loans made were enormous. the borrowers had no expectation of paying them when due, but of renewing them from time to time, as had been the practice under state banking. the national branches in these regions showed a faint gleam of prudence by refusing to accept bills of notoriously unsound local banks. this undemocratic partiality, although timidly exercised, aroused to activity the never-slumbering hostility of these local concerns. in the course of business, however, bills of most state banks accumulated to an immense amount in the vaults of the branches of the bank of the united states. when, in spite of the disposition of the branch officers to extend unending and unlimited indulgence to the state banks and to borrowers generally, the branches finally were compelled by the parent bank to demand payment of loans and redemption of bills of local banks held by it; and when, in consequence, the state banks were forced to collect debts due them, the catastrophe, so long preparing, fell upon sections where the vices of state banking had been practiced most flagrantly. suits upon promissory notes, bonds and mortgages, already frequent, now became incessant; sheriffs were never idle. in the autumn of , in a single small county[ ] of delaware, one hundred and fifty such actions were brought by the banks. in addition to this, records the financial chronicler of the period, "their vaults are loaded with bonds, mortgages and other securities, held _in terrorem_ over the heads of several hundreds more."[ ] at harrisburg, pennsylvania, one bank brought more than one hundred suits during may, ;[ ] a few months later a single issue of one country newspaper in pennsylvania contained advertisements of eighteen farms and mills at sheriff's sale; a village newspaper in new york advertised sixty-three farms and lots to be sold under the sheriff's hammer.[ ] "currency" decreased in quantity; unemployment was amazing; scores of thousands of men begged for work; throngs of the idle camped near cities and subsisted on charity.[ ] all this the people laid at the doors of the national bank, while the state banks,[ ] of course, encouraged the popular animosity. another order of the national concern increased the anger of the people and of the state banks against it. for more than a year the parent institution and its branches had redeemed all notes issued by them wherever presented. since the notes from the west and south flowed to the north and east[ ] in payment for the manufactures and merchandise of these sections, this universal redemption became impossible. so, on august , , the branches were directed to refuse all notes except their own.[ ] thus the bank, "like an _abandoned_ mother, ... bastardized its offspring,"[ ] said the enemies of the national bank, among them all state banks and most of the people. the enforcement of redemption of state bank bills, the reduction of the volume of "currency," were the real causes of the fury with which the bank of the united states and its branches was now assailed. that institution was the monster, said local orators and editors; its branches were the tentacles of the octopus, heads of the hydra.[ ] "the 'branches' are execrated on all hands," wrote an ohio man. "we _feel_ that to the policy pursued by them, we are indebted for all the evils we experience for want of a circulating medium."[ ] the popular cry was for relief. more money, not less, was needed, it was said; and more banks that could and would loan funds with which to pay debts. if the creditor would not accept the currency thus procured, let laws be passed that would compel him to do so, or prevent him from collecting what his contract called for. thus, with such demands upon their lips, and in the midst of a storm of lawsuits, the people entered at last that inevitable period of bankruptcy to which for years they had been drawing nearer and for which they were themselves largely responsible. bankruptcy laws had already been enacted by some states; and if these acts had not been drawn for the benefit of speculators in anticipation of the possible evil day, the "insolvency" statutes certainly had been administered for the protection of rich and dishonest men who wished to escape their liabilities, and yet to preserve their assets. in new york[ ] the debtor was enabled to discharge all accounts by turning over such property as he had; if he owed ten thousand dollars, and possessed but fifty dollars, his debt was cancelled by the surrender of that sum. for the honest and prudent man the law was just, since no great discrepancy usually existed between his reported assets and his liabilities. but lax administration of it afforded to the dishonest adventurer a shield from the righteous consequences of his wrongdoing. the "bankruptcies" of knavish men were common operations. one merchant in an eastern city "failed," but contrived to go on living in a house for which he "was offered $ , in real money."[ ] another in philadelphia became "insolvent," yet had $ worth of wine in his cellar at the very time he was going through "bankruptcy."[ ] a merchant tailor in the little town of york, pennsylvania, resorted to bankruptcy to clear himself of eighty-four thousand dollars of debt.[ ] in their speculations adventurous men counted on the aid of these legislative acts for the relief of debtors. "never ... have any ... laws been more productive of crime than the insolvent laws of maryland," testifies niles.[ ] one issue of the _federal gazette_ contained six columns of bankruptcy notices, and these were only about "one-third of the persons" then "'going through our mill.'" several "bankrupts" had been millionaires, and continued to "_live in splendid affluence_, ... their wives and children, or some kind relative, having been made rich through their swindlings of the people."[ ] many "insolvents" were bankers; and this led niles to propose that the following law be adopted: "'whereas certain persons ... _unknown_, have petitioned for the establishment of a bank at ----: "'be it enacted, that ... these persons, ... shall have liberty to become bankrupts, and may legally swindle as much as they can.'"[ ] in a senate debate in march, , for a proposed new national bankruptcy act,[ ] senator harrison gray otis of massachusetts moderately stated the results of the state insolvency laws. "merchants and traders ... are harassed and perplexed by twenty different systems of municipal laws, often repugnant to each other and themselves; always defective; seldom executed in good faith; prolific in endless frauds, perjuries, and evasions; and never productive of ... any sort of justice, to the creditor. nothing could be ... comparable to their pernicious effects upon the public morals."[ ] senator prentiss mellen, of the same state, described the operation of the bankruptcy mill thus: "we frequently witness transactions, poisoned throughout with fraud ... in which _all_ creditors are deceived and defrauded.... the man _pretends_ to be a bankrupt; and having converted a large portion of his property into money ... he ... closes his doors; ... goes through the form of offering to give up all his property, (though secretly retaining thousands,) on condition of receiving a discharge from his creditors.... in a few months, or perhaps weeks, he recommences business, and finds himself ... with a handsome property at command."[ ] senator james burrill, jr., of rhode island was equally specific and convincing. he pictured the career of a dishonest merchant, who transfers property to relatives, secures a discharge from the state bankruptcy courts, and "in a few days ... resumes his career of folly, extravagance, and rashness.... thus the creditors are defrauded, and the debtor, in many cases, lives in affluence and splendor."[ ] flint records that "mutual credit and confidence are almost torn up by the roots."[ ] it was soon to be the good fortune of john marshall to declare such state legislation null and void because in violation of the national constitution. never did common honesty, good faith, and fair dealing need such a stabilizing power as at the moment marshall furnished to the american people. in most parts of the country even insolvency laws did not satisfy debtors; they were trying to avoid the results of their own acts by securing the enactment of local statutes that repealed the natural laws of human intercourse--of statutes that expressed the momentary wish of the uncomfortable, if honest, multitude, but that represented no less the devices of the clever and unscrupulous. fortunate, indeed, was it for the united states, at this critical time in its development, that one department of the government could not be swayed by the passion of the hour, and thrice happy that the head of that department was john marshall. the impression made directly on marshall by what took place under his very eyes in virginia was strengthened by events that occurred in kentucky. all his brothers and sisters, except two, besides numerous cousins and relatives by marriage, lived there. thus he was advised in an intimate and personal way of what went forward in that state.[ ] the indebtedness of kentucky state banks, and of individual borrowers to the branches of the national bank located in that commonwealth, amounted to more than two and one half millions of dollars.[ ] "this is the _trifling_ sum which the people of kentucky are called upon to pay in _specie_!"[ ] exclaimed a kentucky paper. the people of that state owed the local banks about $ , , more, while the total indebtedness to all financial institutions within kentucky was not far from $ , , .[ ] the sacrifice of property for the satisfaction of mortgages grew ever more distressing. at lexington, a house and lot, for which the owner had refused $ , , brought but $ at sheriff's sale; another costing $ , sold under the hammer for $ .[ ] even slaves could be sold only at a small fraction of their ordinary market price. it was the same in other states. within marshall's personal observation in virginia the people were forced to eat the fruits of their folly. "lands in this state cannot now be sold for a year's rent," wrote jefferson.[ ] a farm near easton, pennsylvania, worth $ , , mortgaged to secure a debt of $ , was taken by the lender on foreclosure for the amount of the loan. a druggist's stock of the retail value of $ , was seized for rent by the landlord and sold for $ .[ ] in virginia a little later a farm of three hundred acres with improvements worth, at the lowest estimate, $ , sold for $ ; two wagon horses costing $ were sacrificed for $ . mines were shut down, shops closed, taxes unpaid. "the debtor ... gives up his land, and, ruined and undone, seeks a home for himself and his family in the western wilderness."[ ] john quincy adams records in his diary: "staple productions ... are falling to ... less than half the prices which they have lately borne, the merchants are crumbling to ruin, the manufactures perishing, agriculture stagnating, and distress universal in every part of the country."[ ] during the summer and autumn of , the popular demand for legislation that would suspend contracts, postpone the payment of debts, and stay the judgment of courts, became strident and peremptory. "our greatest real evil is the question between debtor and creditor, into which the banks have plunged us deeper than would have been possible without them," testifies adams. "the bank debtors are everywhere so numerous and powerful that they control the newspapers throughout the union, and give the discussion a turn extremely erroneous, and prostrate every principle of political economy."[ ] this was especially true of kentucky. throughout the state great assemblages were harangued by oratorical "friends of the people." "the reign of political quackery was in its glory."[ ] why the scarcity of money when that commodity was most needed? why the lawsuits for the collection of debts, the enforcement of bonds, the foreclosure of mortgages, instead of the renewal of loans, to which debtors had been accustomed? financial manipulation had done it all. the money power was responsible for the misery of the people. let that author and contriver of human suffering be suppressed. what could be easier or more just than to enact legislation that would lift the burden of debt that was crushing the people? the state banks would not resist--were they not under the control of the people's legislature? but they were also at the mercy of that remorseless creature of the national government, the bank of the united states. that malign thing was the real cause of all the trouble.[ ] let the law by which congress had given illegitimate life to that destroyer of the people's well-being be repealed. if that could not be done because so many of the national legislature were corruptly interested in the bank, the states had a sure weapon with which to destroy it--or at least to drive it out of business in every member of the union. that weapon was taxation. let each legislature, by special taxes, strangle the branches of the national bank operating in the states. so came a popular determination to exterminate, by state action, the second bank of the united states. national power should be brought to its knees by local authority! national agencies should be made helpless and be dispatched by state prohibition and state taxation! the arm of the national government should be paralyzed by the blows showered on it when thrusting itself into the affairs of "sovereign" states! already this process was well under way. the first constitution of indiana, adopted soon after congress had authorized the second bank of the united states, prohibited any bank chartered outside the state from doing business within its borders.[ ] during the very month that the national bank opened its doors in , the legislature of maryland passed an act taxing the baltimore branch $ , annually. seven months afterward the legislature of tennessee enacted a law that any bank not chartered under its authority should pay $ , each year for the privilege of banking in that state. a month later georgia placed a special tax on branches of the bank of the united states. the constitution of illinois, adopted in august, , forbade the establishment of any but state banks. in december of that year north carolina taxed the branch of the national bank in that state $ per annum. a few weeks later kentucky laid an annual tax of $ , on each of the two branches of the bank of the united states located at lexington and frankfort. three weeks before john marshall delivered his opinion in m'culloch _vs._ maryland, ohio enacted a statute placing a yearly tax of $ , on each of the two national bank branches then doing business in that state.[ ] thus the extinction of the second bank of the united states by state legislation appeared to be inevitable. the past management of it had well deserved this fate; but earnest efforts were now in operation to recover it from former blunders and to retrieve its fortunes. the period of corruption was over, and a new, able, and honest management was about to take charge. if, however, the states could destroy this national fiscal agency, it mattered not how well it might thereafter be conducted, for nothing could be more certain than that the local influence of state banks always would be great enough to induce state legislatures to lay impossible burdens on the national bank. such, then, was the situation that produced those opinions of marshall on insolvency, on contract, and on a national bank, delivered during february and march of ; such the national conditions which confronted him during the preceding summer and autumn. he could do nothing to ameliorate these conditions, nothing to relieve the universal unhappiness, nothing to appease the popular discontent. but he could establish great national principles, which would give steadiness to american business, vitality to the national government; and which would encourage the people to practice honesty, prudence, and thrift. and just this john marshall did. when considering the enduring work he performed at this time, we must have in our thought the circumstances that made that work vitally necessary. one of the earliest cases decided by the supreme court in involved the bankrupt law of new york. on november , , josiah sturges[ ] of massachusetts sued richard crowninshield of new york in the united states circuit court for the district of massachusetts to recover upon two promissory notes for the sum of $ . each, executed march , , just twelve days before the passage, april , , of the new york statute for the relief of insolvent debtors. the defendant pleaded his discharge under that act. the judges were divided in opinion on the questions whether a state can pass a bankrupt act, whether the new york law was a bankrupt act, and whether it impaired the obligations of a contract. these questions were, accordingly, certified to the supreme court. the case was there argued long and exhaustively by david daggett and joseph hopkinson for sturges and by david b. ogden and william hunter for crowninshield. in weight of reasoning and full citation of authority, the discussion was inferior only to those contests before the supreme bench which have found a place in history. on february , , marshall delivered the unanimous opinion of the court.[ ] do the words of the constitution, "congress shall have power ... to establish ... uniform laws on the subject of bankruptcies throughout the united states" take from the states the right to pass such laws? before the adoption of the constitution, begins marshall, the states "united for some purposes, but, in most respects, sovereign," could "exercise almost every legislative power." the powers of the states under the constitution were not defined in that instrument. "these powers proceed, not from the people of america, but from the people of the several states; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged" by the nation's fundamental law. while the "mere grant of a power to congress" does not necessarily mean that the states are forbidden to exercise the same power, such concurrent power does not extend to "every possible case" not expressly prohibited by the constitution. "the confusion resulting from such a practice would be endless." as a general principle, declares the chief justice, "whenever the terms in which a power is granted to congress, or the nature of the power, required that it should be exercised exclusively by congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act on it."[ ] [illustration: _john marshall_ _from the bust in the court room of the united states supreme court_] does this general principle apply to bankrupt laws? assuredly it does. congress is empowered to "establish uniform laws on the subject throughout the united states." uniform national legislation is "incompatible with state legislation" on the same subject. marshall draws a distinction between bankrupt and insolvency laws, although "the line of partition between them is not so distinctly marked" that it can be said, "with positive precision, what belongs exclusively to the one, and not to the other class of laws."[ ] he enters upon an examination of the nature of insolvent laws which states may enact, and bankrupt laws which congress may enact; and finds that "there is such a connection between them as to render it difficult to say how far they may be blended together.... a bankrupt law may contain those regulations which are generally found in insolvent laws"; while "an insolvent law may contain those which are common to a bankrupt law." it is "obvious," then, that it would be a hardship to "deny to the state legislatures the power of acting on this subject, in consequence of the grant to congress." the true rule--"certainly a convenient one"--is to "consider the power of the states as existing over such cases as the laws of the union may not reach."[ ] but, whether this common-sense construction is adopted or not, it is undeniable that congress may exercise a power granted to it or decline to exercise it. so, if congress thinks that uniform bankrupt laws "ought not to be established" throughout the country, surely the state legislatures ought not, on that account, to be prevented from passing bankrupt acts. the idea of marshall, the statesman, was that it was better to have bankrupt laws of some kind than none at all. "it is not the mere existence of the power [in congress], but its exercise, which is incompatible with the exercise of the same power by the states. it is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the states."[ ] even should congress pass a bankrupt law, that action does not extinguish, but only suspends, the power of the state to legislate on the same subject. when congress repeals a national bankrupt law it merely "removes a disability" of the state created by the enactment of the national statute, and lasting only so long as that statute is in force. in short, "until the power to pass uniform laws on the subject of bankruptcies be exercised by congress, the states are not forbidden to pass a bankrupt law, provided it contain no principle which violates the th section of the first article of the constitution of the united states."[ ] having toilsomely reached this conclusion, marshall comes to what he calls "the great question on which the cause must depend": does the new york bankrupt law "impair the obligation of contracts"?[ ] what is the effect of that law? it "liberates the person of the debtor, and discharges him from all liability for any debt previously contracted, on his surrendering his property in the manner it prescribes." here marshall enters upon that series of expositions of the contract clause of the constitution which, next to the nationalism of his opinions, is, perhaps, the most conspicuous feature of his philosophy of government and human intercourse.[ ] "what is the obligation of a contract? and what will impair it?"[ ] it would be hard to find words "more intelligible, or less liable to misconstruction, than those which are to be explained." with a tinge of patient impatience, the chief justice proceeds to define the words "contract," "impair," and "obligation," much as a weary school teacher might teach the simplest lesson to a particularly dull pupil. "a contract is an agreement in which a party undertakes to do, or not to do, a particular thing. the law binds him to perform his undertaking, and this is, of course, the obligation of his contract. in the case at bar, the defendant has given his promissory note to pay the plaintiff a sum of money on or before a certain day. the contract binds him to pay that sum on that day; and this is its obligation. any law which releases a part of this obligation, must, in the literal sense of the word, impair it. much more must a law impair it which makes it totally invalid, and entirely discharges it. "the words of the constitution, then, are express, and incapable of being misunderstood. they admit of no variety of construction, and are acknowledged to apply to that species of contract, an engagement between man and man, for the payment of money, which has been entered into by these parties."[ ] what are the arguments that such law does not violate the constitution? one is that, since a contract "can only bind a man to pay to the full extent of his property, it is an implied condition that he may be discharged on surrendering the whole of it." this is simply not true, says marshall. when a contract is made, the parties to it have in mind, not only existing property, but "future acquisitions. industry, talents and integrity, constitute a fund which is as confidently trusted as property itself. future acquisitions are, therefore, liable for contracts; and to release them from this liability impairs their obligation."[ ] marshall brushes aside, almost brusquely, the argument that the only reason for the adoption of the contract clause by the constitutional convention was the paper money evil; that the states always had passed bankrupt and insolvent laws; and that if the framers of the constitution had intended to deprive the states of this power, "insolvent laws would have been mentioned in the prohibition." no power whatever, he repeats, is conferred on the states by the constitution. that instrument found them "in possession" of practically all legislative power and either prohibited "its future exercise entirely," or restrained it "so far as national policy may require." while the constitution permits states to pass bankrupt laws "until that power shall be exercised by congress," the fundamental law positively forbids the states to "introduce into such laws a clause which discharges the obligations the bankrupt has entered into. it is not admitted that, without this principle, an act cannot be a bankrupt law; and if it were, that admission would not change the constitution, nor exempt such acts from its prohibitions."[ ] there was, said marshall, nothing in the argument that, if the framers of the constitution had intended to "prohibit the states from passing insolvent laws," they would have plainly said so. "it was not necessary, nor would it have been safe" for them to have enumerated "particular subjects to which the principle they intended to establish should apply." on this subject, as on every other dealt with in the constitution, fundamental principles are set out. what is the one involved in this case? it is "the inviolability of contracts. this principle was to be protected in whatsoever form it might be assailed. to what purpose enumerate the particular modes of violation which should be forbidden, when it was intended to forbid all?... the plain and simple declaration, that no state shall pass any law impairing the obligation of contracts, includes insolvent laws and all other laws, so far as they infringe the principle the convention intended to hold sacred, and no farther."[ ] at this point marshall displays the humanitarian which, in his character, was inferior only to the statesman. he was against imprisonment for debt, one of the many brutal customs still practiced. "the convention did not intend to prohibit the passage of all insolvent laws," he avows. "to punish honest insolvency by imprisonment for life, and to make this a constitutional principle, would be an excess of inhumanity which will not readily be imputed to the illustrious patriots who framed our constitution, nor to the people who adopted it.... confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. but the state may refuse to inflict this punishment, or may withhold this means and leave the contract in full force. imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation."[ ] following his provoking custom of taking up a point with which he had already dealt, marshall harks back to the subject of the reason for inserting the contract clause into the constitution. he restates the argument against applying that provision to state insolvent laws--that, from the beginning, the colonies and states had enacted such legislation; that the history of the times shows that "the mind of the convention was directed to other laws which were fraudulent in their character, which enabled the debtor to escape from his obligation, and yet hold his property, not to this, which is beneficial in its operation." but, he continues, "the spirit of ... a constitution" is not to be determined solely by a partial view of the history of the times when it was adopted--"the spirit is to be collected chiefly from its words." and "it would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation." where language is obscure, where words conflict, "construction becomes necessary." but, when language is clear, words harmonious, the plain meaning of that language and of those words is not "to be disregarded, because we believe the framers of that instrument could not intend what they say."[ ] the practice of the colonies, and of the states before the constitution was adopted, was a weak argument at best. for example, the colonies and states had issued paper money, emitted bills of credit, and done other things, all of which the constitution prohibits. "if the long exercise of the power to emit bills of credit did not restrain the convention from prohibiting its future exercise, neither can it be said that the long exercise of the power to impair the obligation of contracts, should prevent a similar prohibition." the fact that insolvent laws are not forbidden "by name" does not exclude them from the operation of the contract clause of the constitution. it is "a principle which is to be forbidden; and this principle is described in as appropriate terms as our language affords."[ ] perhaps paper money was the chief and impelling reason for making the contract clause a part of the national constitution. but can the operation of that clause be confined to paper money? "no court can be justified in restricting such comprehensive words to a particular mischief to which no allusion is made." the words must be given "their full and obvious meaning."[ ] doubtless the evils of paper money directed the convention to the subject of contracts; but it did far more than to make paper money impossible thereafter. "in the opinion of the convention, much more remained to be done. the same mischief might be effected by other means. to restore public confidence completely, it was necessary not only to prohibit the use of particular means by which it might be effected, but to prohibit the use of any means by which the same mischief might be produced. the convention appears to have intended to establish a great principle, that contracts should be inviolable. the constitution therefore declares, that no state shall pass 'any law impairing the obligation of contracts.'"[ ] from all this it follows that the new york bankruptcy act of is unconstitutional because it impaired the obligations of a contract. the opinion of the chief justice aroused great excitement.[ ] it, of course, alarmed those who had been using state insolvent laws to avoid payment of their debts, while retaining much of their wealth. it also was unwelcome to the great body of honest, though imprudent, debtors who were struggling to lighten their burdens by legislation. but the more thoughtful, even among radicals, welcomed marshall's pronouncement. niles approved it heartily.[ ] gradually, surely, marshall's simple doctrine grew in favor throughout the whole country, and is to-day a vital and enduring element of american thought and character as well as of constitutional law. as in fletcher _vs._ peck, the principle of the inviolability of contracts was applied where a state and individuals are parties, so the same principle was now asserted in sturges _vs._ crowninshield as to state laws impairing the obligation of contracts between man and man. at the same session, in the celebrated dartmouth college case,[ ] marshall announced that this principle also covers charters granted by states. thus did he develop the idea of good faith and stability of engagement as a life-giving principle of the american constitution. footnotes: [ ] m'culloch _vs._ maryland, see _infra_, chap. vi. [ ] see vol. ii, , of this work. [ ] sumner: _history of american currency_, . [ ] see memorial of the bank for a recharter, april , (_am. state papers, finance_, ii, ), and second memorial, dec. , (_ib._ - ). every statement in these petitions was true. see also dewey: _financial history of the united states_, , . [ ] see vol. ii, - , of this work. [ ] _annals_, st cong. d. sess. . by far the strongest objection to a national bank, however, was that it was a monopoly inconsistent with free institutions. [ ] jefferson to gallatin, dec. , , _works_: ford: x, . [ ] "fully two thirds of the bank stock ... were owned in england." (adams: _u.s._ v, .) [ ] dewey, ; and pitkin: _statistical view of the commerce of the united states_, - . [ ] adams: _u.s._ v, - . [ ] _annals_, th cong. d sess. - . [ ] _ib._ , , ; and see pitkin, . [ ] adams: _u.s._ v, - . "they induced one state legislature after another to instruct their senators on the subject." pitkin, . [ ] ambler: _ritchie_, - , . [ ] _ib._ . [ ] _branch hist. papers_, june, , . [ ] _annals_, th cong. d sess. . [ ] "it is true, that a branch of the bank of the united states ... is established at norfolk; and that a branch of the bank of virginia is also established there. but these circumstances furnish no possible motive of avarice to the virginia legislature.... they have acted ... from the purest and most honorable motives." (_annals_, th cong. d sess. .) [ ] pitkin, . [ ] the "newspapers teem with the most virulent abuse." (james flint's letters from america, in _early western travels_: thwaites, ix, .) even twenty years later captain marryat records: "the press in the united states is licentious to the highest possible degree, and defies control.... every man in america reads his newspaper, and hardly any thing else." (marryat: _diary in america_, d series, - .) [ ] "the democratic presses ... have ... teemed with the most scurrilous abuse against every member of congress who has dared to utter a syllable in favor of the renewal of the bank charter." any member supporting the bank "is instantly charged with being bribed, ... with being corrupt, with having trampled upon the rights and liberties of the people, ... with being guilty of perjury." according to "the rantings of our democratic editors ... and the denunciations of our public declaimers," the bank "exists under the form of every foul and hateful beast and bird, and creeping thing. it is an _hydra_; it is a _cerberus_; it is a _gorgon_; it is a _vulture_; it is a _viper_.... "shall we tamely act under the lash of this tyranny of the press?... i most solemnly protest.... to tyranny, under whatever form it may be exercised, i declare open and interminable war ... whether the tyrant is an irresponsible editor or a despotic monarch." (_annals_, th cong. d sess. .) [ ] _annals_, th cong. d sess. . [ ] _ib._ . [ ] pitkin, . [ ] adams to rush, dec. , , _old family letters_, . [ ] sumner: _andrew jackson_, . [ ] dewey, . [ ] twenty-one state banks were employed as government depositories after the destruction of the first bank of the united states (_ib._ .) [ ] dewey, . [ ] adams to rush, july , , _old family letters_, . [ ] william faux's journal, _e. w. t._: thwaites, xi, . [ ] speech of hanson in the house, nov. , , _annals_, th cong. d sess. . [ ] catterall: _second bank of the united states_, - . [ ] calhoun's bill. [ ] webster to his brother, nov. , , van tyne, . [ ] webster's bill. [ ] _annals_, th cong. d sess. - ; richardson, i, - . [ ] richardson, i, - . four years afterwards president monroe told his secretary of state, john quincy adams, that jefferson, madison, and himself considered all constitutional objections to the bank as having been "settled by twenty years of practice and acquiescence under the first bank." (_memoirs, j. q. a.: adams_, iv, , jan. , .) [ ] _annals_, th cong. st sess. - . [ ] _annals_, st cong. d and d sess. - ; and th cong. st sess. - ; also dewey, - . [ ] catterall, . [ ] dewey, . [ ] sumner: _hist. am. currency_, . [ ] in november, , niles estimated that there were about four hundred banks in the country with eight thousand "managers and clerks," costing $ , , , annually. (niles, xv, .) [ ] "the present multitude of them ... is no more fitted to the condition of society, than a long-tailed coat becomes a sailor on ship-board." (_ib._ xi, .) [ ] king to his son, may , , king, vi, . [ ] king to gore, may , , _ib._ - . [ ] niles, xiv, . [ ] _ib._ xvi, . [ ] niles, xvi, . [ ] _ib._ xiv, . [ ] _ib._ - . [ ] "niles' _weekly register_ is ... an excellent repository of facts and documents." (jefferson to crawford, feb. , , _works_: ford, xi. .) [ ] niles, xiv, - . [ ] niles, xiv, - . [ ] "report of the committee on the currency of this [new york] state," feb. , , _ib._ - ; also partially reproduced in _american history told by contemporaries_: hart, iii, - . [ ] "report of committee on the currency," new york, _supra_, . [ ] niles, xiv, . [ ] jefferson to yancey, jan. , , _works_: ford, xi, . [ ] dewey, ; and sumner: _hist. am. currency_, . [ ] niles proposed a new bank to be called "the ragbank of the universe," main office at "_lottery-ville_," and branches at "_hookstown_," "_owl creek_," "_botany bay_," and "_twisters-burg_." directors were to be empowered also "to put offices on wheels, on ship-board, or in balloons"; stock to be "one thousand million of old shirts." (niles, xiv, .) [ ] dewey, . [ ] _ib._ - . [ ] flint's letters, _e. w. t._: thwaites, ix, ; and see "report of the committee on the currency," new york, _supra_, . [ ] tyler: _tyler_, i, ; niles, xi, . [ ] niles, xi, . [ ] _ib._ iv, ; collins: _historical sketches of kentucky_, . these were in addition to the branches of the bank of kentucky and of the bank of the united states. including them, the number of chartered banks in that state was fifty-eight by the close of . of the towns where new banks were established during that year, burksville had inhabitants; barboursville, ; hopkinsville, ; greenville, ; thirteen others had fewer than inhabitants. the "capital" of the banks in such places was never less than $ , , but that at glasgow, with inhabitants, had a capital of $ , , and several other villages were similarly favored. for full list see niles, xiv, . [ ] flint's letters, _e. w. t._: thwaites, ix, . [ ] niles, xvii, . [ ] john woods's two years' residence, _e. w. t._: thwaites, x, . [ ] flint's letters, _e. w. t._: thwaites, ix, - . [ ] _ib._ . [ ] niles, xiv, . [ ] woods's two years' residence, _e. w. t._: thwaites, x, - : and flint's letters, _ib._ ix, . in southwestern indiana, in , faux "saw nothing ... but miserable log holes, and a mean ville of eight or ten huts or cabins, sadly neglected farms, and indolent, dirty, sickly, wild-looking inhabitants." (faux's journal, nov. , , _ib._ xi, - .) he describes kentucky houses as "miserable holes, having one room only," where "all cook, eat, sleep, breed, and die, males and females, all together." (_ib._ , and see .) [ ] for shocking and almost unbelievable conditions of living among the settlers see faux's journal, _e. w. t._: thwaites, xi, , , - , - . [ ] "we landed for some whiskey; for our men would do nothing without." (woods's two years' residence, _ib._ x, , .) "excessive drinking seems the all-pervading, easily-besetting sin." (faux's journal, nov. , , _ib._ xi, .) this continued for many years and was as marked in the east as in the west. (see marryat, d series, - .) there was, however, a large and ever-increasing number who hearkened to those wonderful men, the circuit-riding preachers, who did so much to build up moral and religious america. most people belonged to some church, and at the camp meetings and revivals, multitudes received conviction. the student should carefully read the _autobiography of peter cartwright_, edited by w. p. strickland. this book is an invaluable historical source and is highly interesting. see also schermerhorn and mills: _a correct view of that part of the united states which lies west of the allegany mountains, with regard to religion and morals._ _great revival in the west_, by catharine c. cleveland, is a careful and trustworthy account of religious conditions before the war of . it has a complete bibliography. [ ] flint's letters, _e. w. t._: thwaites, ; also schermerhorn and mills, - . [ ] "nature is the agriculturist here [near princeton, ind.]; speculation instead of cultivation, is the order of the day amongst men." (thomas hulme's journal, e. w. t.: thwaites, x, ; see faux's journal, _ib._ xi, .) [ ] faux's journal, _ib._ , , - . [ ] _ib._ . [ ] see vol. i, chap, vii, of this work. [ ] flint's letters, _e. w. t._: thwaites, ix, ; woods's two years residence, _ib._ x, . "i saw a man this day ... his nose bitten off close down to its root, in a fight with a nose-loving neighbour." (faux's journal, _ib._ xi, ; and see strickland, - .) [ ] the reports of american conditions by british travelers, although from unsympathetic pens and much exaggerated, were substantially true. thus europe, and especially the united kingdom, conceived for americans that profound contempt which was to endure for generations. "such is the land of jonathan," declared the _edinburgh review_ in an analysis in (xxxiii, - ) of a book entitled _statistical annals of the united states_, by adam seybert. "he must not ... allow himself to be dazzled by that galaxy of epithets by which his orators and newspaper scribblers endeavour to persuade their supporters that they are the greatest, the most refined, the most enlightened, and the most moral people upon earth.... they have hitherto given no indications of genius, and made no approaches to the heroic, either in their morality or character.... "during the thirty or forty years of their independence, they have done absolutely nothing for the sciences, for the arts, for literature, or even for statesman-like studies of politics or political economy.... in the four quarters of the globe, who reads an american book? or goes to an american play? or looks at an american picture or statue? what does the world yet owe to american physicians or surgeons? what new substances have their chemists discovered? or what old ones have they analyzed? what new constellations have been discovered by the telescopes of americans?--what have they done in the mathematics...? under which of the old tyrannical governments of europe is every sixth man a slave, whom his fellow-creatures may buy and sell and torture?" [ ] nevertheless, these very settlers had qualities of sound, clean citizenship; and beneath their roughness and crudity were noble aspirations. for a sympathetic and scholarly treatment of this phase of the subject see pease: _frontier state_, i, . [ ] faux's journal, _e. w. t._: thwaites, xi, . [ ] randolph to quincy, aug. , , _quincy_: quincy, . [ ] marryat, d series, . [ ] see vol. i, chap, vii, of this work. [ ] marryat, st series, . [ ] marryat, d series, . [ ] woods's two years' residence, _e. w. t._: thwaites, x, . [ ] niles, xiv, . [ ] see mcmaster, iv, . this continued even after the people had at last become suspicious of unlicensed banks. in , at bloomington, ohio, a hamlet of "ten houses ... in the edge of the prairie ... a [bank] company was formed, plates engraved, and the bank notes brought to the spot." failing to secure a charter, the adventurers sold their outfit at auction, fictitious names were signed to the notes, which were then put into fraudulent circulation. (flint's letters, _e. w. t._: thwaites, ix, .) [ ] _ib._ - . [ ] faux's journal, oct. , , _e. w. t_.: thwaites, xi, . faux says that even in cincinnati itself the bank bills of that town could be exchanged at stores "only or per centum below par, or united states' paper." [ ] flint's letters, _e. w. t_. thwaites, ix, - . [ ] in baltimore cohens's "lottery and exchange office" issued a list of nearly seventy banks, with rates of prices on their notes. the circular gave notice that the quotations were good for one day only. (niles, xiv, .) at the same time g. & r. waite, with offices in new york, philadelphia, and baltimore, issued a list covering the country from connecticut to ohio and kentucky. (_ib._ .) the rates as given by this firm differed greatly from those published by cohens. [ ] _ib._ x, . [ ] sumner: _jackson_, . [ ] flint's letters, _e. w. t._: thwaites, ix, . [ ] niles, xv, . [ ] niles, xiv, - ; also xv, . [ ] _ib._ xvii, . [ ] _ib._ xiv, . [ ] a wealthy richmond merchant who had married a sister of marshall's wife. (see vol. ii, , of this work.) [ ] a writ directing the sheriff to seize the goods and chattels of a person to compel him to satisfy an obligation. bouvier (rawle's ed.) i, . [ ] richmond _enquirer_, jan. , . what was the outcome of this incident does not appear. professor sumner says that the bank was closed for a few days, but soon opened and went on with its business. (sumner: _hist. am. currency_, - .) sumner fixes the date in , two years after the event. [ ] niles, xiv, . [ ] _ib._ - . [ ] _ib._ ; and for similar cases, see _ib._ , - , - . all these accounts were taken from newspapers at the places where criminals were captured. [ ] niles, xiv, . [ ] _ib._ xvi, - ; also, _ib._ , , . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] see catterall, - . [ ] the frauds of the directors and officers of the bank of the united states were used, however, as the pretext for an effort to repeal its charter. on feb. , , james johnson of virginia introduced a resolution for that purpose. (_annals_, th cong. d sess. iii, - .) [ ] see catterall, . [ ] new castle county. [ ] niles, xv, . [ ] _ib._ . [ ] _ib._ . [ ] flint's letters, _e.w.t._: thwaites, ix, . [ ] they, too, asserted that institution to be the author of their woes, (niles, xvii, .) [ ] catterall, - . [ ] _ib._ - ; and see niles, xv, . [ ] catterall, . [ ] monster, hydra, cerberus, octopus, and names of similar import were popularly applied to the bank of the united states. (see crawford's speech, _supra_, .) [ ] niles, xv, . [ ] act of april , , _laws of new york_, , - . [ ] niles, xvi, . [ ] _ib._ [ ] _ib._ xvii, . [ ] "i have known several to _calculate_ upon the 'relief' from them, just as they would do on an accommodation at bank, or on the payment of debts due to them! if we succeed in such and such a thing, say they--very well; if not, we can get the benefit of the insolvent laws.... where one prudent and honest man applies for such benefit, one hundred rogues are facilitated in their depredations." (niles, xvii, .) [ ] _ib._ [ ] _ib._ xv, . [ ] the bankruptcy law which marshall had helped to draw when in congress (see vol. ii, - , of this work) had been repealed in . (_annals_, th cong. st sess. , , . for reasons for the repeal see _ib._ - .) [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] _ib._ - . [ ] flint's letters, _e.w.t._: thwaites, ix, . in reviewing _sketches of america_ by henry bradshaw fearon, an englishman who traveled through the united states, the _quarterly review_ of london scathingly denounced the frauds perpetrated by means of insolvent laws. (_quarterly review_, xxi, .) [ ] none of these letters to marshall have been preserved. indeed, only a scant half-dozen of the original great number of letters written him even by prominent men during his long life are in existence. for those of men like story and pickering we are indebted to copies preserved in their papers. marshall, at best, was incredibly negligent of his correspondence as he was of all other ordinary details of life. most other important men of the time kept copies of their letters; marshall kept none; and if he preserved those written to him, nearly all of them have disappeared. [ ] niles, xv, . [ ] _ib._ [ ] _ib._ xvi, . [ ] _ib._ xvii, . [ ] jefferson to adams, nov. , , _works_: ford, xii, . [ ] niles, xvii, . [ ] niles, xvii, . [ ] _memoirs, j. q. a._: adams, may , , iv, . [ ] _ib._ . [ ] collins, . [ ] "the disappointment is altogether ascribed to the bank of the u.s." (king to mason, feb. , , king, vi, .) king's testimony is uncommonly trustworthy. his son was an officer of the branch of chillicothe, ohio. [ ] see article x, section , constitution of indiana, as adopted june , . [ ] see catterall, - , and sources there cited. [ ] spelled _sturgis_ on the manuscript records of the supreme court. [ ] wheaton, . [ ] wheaton, - . [ ] wheaton, . [ ] _ib._ . [ ] wheaton, . [ ] "no state shall ... emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any ... ex post facto law, or law impairing the obligation of contracts." [ ] wheaton, - . [ ] for the proceedings in the constitutional convention on this clause, see vol. iii, chap. x, of this work. [ ] wheaton, . [ ] _ib._ - . [ ] wheaton, . [ ] wheaton, . [ ] _ib._ . [ ] wheaton, - . [ ] wheaton, . [ ] _ib._ - . [ ] wheaton, . [ ] _ib._ . [ ] niles, xvi, . [ ] "it will probably, make some great revolutions in property, and raise up many from penury ... and cause others to descend to the condition that becomes _honest men_, by compelling a payment of their debts--as every honest man ought to be compelled to do, if ever able.... it ought not to be at any one's discretion to say when, or under what _convenient_ circumstances, he will _wipe off_ his debts, by the benefit of an insolvent law--as some do every two or three years; or, just as often as they can get credit enough to make any thing by it." (niles, xvi, .) [ ] see _infra_, next chapter. chapter v the dartmouth college case such a contract, in relation to a publick institution would be absurd and contrary to the principles of all governments. (chief justice william m. richardson.) it would seem as if the state legislatures have an invincible hostility to the sacredness of charters. (marshall.) perhaps no judicial proceedings in this country ever involved more important consequences. (_north american review_, .) it is the legitimate business of government to see that contracts are fulfilled, that charters are kept inviolate, and the foundations of human confidence not rudely or wantonly disturbed. (john fiske.) just before marshall delivered his opinion in sturges _vs._ crowninshield, he gave to the nation another state paper which profoundly influenced the development of the united states. it was one of the trilogy of constitutional expositions which make historic the february term, , of the supreme court of the united states. this pronouncement, like that in the bankruptcy case, had to do with the stability of contract. both were avowals that state legislatures cannot, on any pretext, overthrow agreements, whether in the form of engagements between individuals or franchises to corporations. both were meant to check the epidemic of repudiatory legislation which for three years had been sweeping over the land and was increasing in virulence at the time when marshall prepared them. the dartmouth opinion was wholly written in virginia during the summer, autumn, or winter of ; and it is probable that the greater part of the opinion in sturges _vs._ crowninshield was also prepared when the chief justice was at home or on his vacation. marshall's economic and political views, formed as a young man,[ ] had been strengthened by every event that had since occurred until, in his sixty-fifth year, those early ideas had become convictions so deep as to pervade his very being. the sacredness of contract, the stability of institutions, and, above all, nationalism in government, were, to john marshall, articles of a creed as holy as any that ever inspired a religious enthusiast. his opinion of contract had already been expressed by him not only in the sensational case of fletcher _vs._ peck,[ ] but far more rigidly two years later, , in the important case of the state of new jersey _vs._ wilson.[ ] in , the proprietary government of new jersey agreed to purchase a tract of land for a band of delaware indians, provided that the indians would surrender their title to all other lands claimed by them in new jersey. the indians agreed and the contract was embodied in an act of the legislature, which further provided that the lands purchased for the indians should "not hereafter be subject to any tax, any law, usage or custom to the contrary thereof, in any wise notwithstanding."[ ] the contract was then executed, the state purchasing lands for the indians and the latter relinquishing the lands claimed by them. after forty years the indians, wishing to join other delawares in new york, asked the state of new jersey to authorize the sale of their lands. this was done by an act of the legislature, and the lands were sold. soon after this, another act was passed which repealed that part of the act of exempting the lands from taxation. accordingly the lands were assessed and payment of the tax demanded. the purchasers resisted and, the supreme court of new jersey having held valid the repealing act, took the case to the supreme court of the united states. in a brief opinion, in which it is worthy of particular note that the supreme court was unanimous, marshall says that the constitution protects "contracts to which a state is a party, as well as ... contracts between individuals.... the proceedings [of ] between the then colony ... and the indians ... is certainly a contract clothed in forms of unusual solemnity." the exemption of the lands from taxation, "though for the benefit of the indians, is annexed, by the terms which create it, to the land itself, not to their persons." this element of the contract was valuable to the indians, since, "in the event of a sale, on which alone the question could become material, the value [of the lands] would be enhanced" by the exemption. new jersey "might have insisted on a surrender of this privilege as the sole condition on which a sale of the property should be allowed"; but this had not been done and the land was sold "with the assent of the state, with all its privileges and immunities. the purchaser succeeds, with the assent of the state, to all the rights of the indians. he stands, with respect to this land, in their place, and claims the benefit of their contract. this contract is certainly impaired by a law which would annul this essential part of it."[ ] after his opinions in fletcher _vs._ peck and in new jersey _vs._ wilson, nobody could have expected from john marshall any other action than the one he took in the dartmouth college case.[ ] the origins of the dartmouth controversy are tangled and obscure. when on december , , a little ocean-going craft, of which a new england john marshall[ ] was skipper, set sail from boston harbor for england with nathaniel whitaker and samson occom on board,[ ] a succession of curious events began which, two generations afterward, terminated in one of the most influential decisions ever rendered by a court. whitaker was a preacher and a disciple of george whitefield; occom was a young indian, converted to christianity by one eleazar wheelock, and endowed with uncommon powers of oratory. wheelock had built up a wilderness school to which were admitted indian youth, in whom he became increasingly interested. occom was one product of his labors, and wheelock sent him to england as a living, speaking illustration of what his school could do if given financial support. whitaker went with the devout and talented indian as the business agent.[ ] their mission was to raise funds for the prosecution of this educational and missionary work on the american frontier. they succeeded in a manner almost miraculous. over eleven thousand pounds were soon raised,[ ] and this fund was placed under the control of the trustees, at the head of whom was the earl of dartmouth, one of the principal donors.[ ] from this circumstance the name of this nobleman was given to wheelock's institution. on december , , john wentworth, royal governor of the province of new hampshire, granted to wheelock a charter for his school. it was, of course, in the name of the sovereign, but it is improbable that george iii ever heard of it.[ ] this charter sets forth the successful efforts of wheelock, "at his own expense, on his own estate," to establish a charity school for indian as well as white youth, in order to spread "the knowledge of the great redeemer among their savage tribes"; the contributions to the cause; the trust, headed by dartmouth--and all the other facts concerning wheelock's adventure. because of these facts the charter establishes "dartmouth college" for the education of indians, to be governed by "one body corporate and politick, ... by the name of the trustees of dartmouth college." these trustees are constituted "forever hereafter ... in deed, act, and name a body corporate and politick," and are empowered to buy, receive, and hold lands, "jurisdictions, and franchises, for themselves and their successors, in fee simple, or otherwise howsoever." in short, the trustees are authorized to do anything and everything that they may think proper. wheelock is made president of the college, and given power to "appoint, ... by his last will" whomever he chooses to succeed himself as president of the college. the charter grants to the trustees and to "their successors forever," or "the major part of any seven or more of them convened," the power to remove and choose a president of the college, and to fill any vacancy in the board of trustees occasioned by death, or "removal," or any other cause. all this is to be done if seven trustees, or a majority of seven, are present at any meeting. also this majority of seven of the twelve trustees, if no more attend a meeting, are authorized to make all laws, rules, and regulations for the college. other powers are granted, all of which the trustees and their successors are "to have and to hold ... forever."[ ] under this charter, dartmouth college was established and, for nearly half a century, governed and managed. eleazar wheelock died in , when sixty-eight years of age.[ ] by his will he made his son john his successor as president of the college.[ ] this young man, then but twenty-five years of age, was a colonel of the revolutionary army.[ ] he hesitated to accept the management of the institution, but the trustees finally prevailed upon him to do so.[ ] the son was as strong-willed and energetic as the father, and gave himself vigorously to the work to which he had thus been called. within four years troubles began to gather about the college. they came from sources as strange as human nature itself, and mingled at last into a compound of animosities, prejudices, ambitions, jealousies, as curious as any aggregation of passions ever arranged by the most extravagant novelist. it is possible here to mention but briefly only a few of the circumstances by which the famous dartmouth quarrel may be traced. a woman, one rachel murch, complained to the church at hanover, where dartmouth college was situated, that a brother of the congregation, one samuel haze, had said of her, among other things, that her "character was ... as black as hell."[ ] this incident grew into a sectarian warfare that, by the most illogical and human processes, eventuated in arraigning the congregationalists, or "established" church, on one side and all other denominations on the other.[ ] into this religious quarrel the economic issue entered, as it always does. the property of ministers of the "standing order," or "state religion," was exempt from taxation while that of other preachers was not.[ ] another source of discord arose out of the question as to whether the college professor of theology should preach in the village church. coincident with this grave problem were subsidiary ones concerning the attendance of students at village worship and the benches they were to occupy. the fates threw still another ingredient of trouble into the cauldron. this was the election in , as one of the trustees, of nathaniel niles, whom jefferson, with characteristic exuberance of expression, once declared to be "the ablest man i ever knew."[ ] although a lawyer by profession, niles had taken a course in theology when a student, his instructor being a dr. joseph bellamy. both the elder wheelock and bellamy had graduated from yale and had indulged in some bitter sectarian quarrels, bellamy as a congregationalist and wheelock as a presbyterian. from tutor and parent, niles and the younger wheelock inherited this religious antagonism. moreover, they were as antipathetic by nature as they were bold, uncompromising, and dominant. niles eventually acquired superior influence over his fellow trustees, and thereafter no friend of president wheelock was elected to the board.[ ] an implacable feud arose. wheelock asked the legislature to appoint a committee to investigate the conduct of the college. this further angered the trustees. by this time the warfare in the one college in the state had aroused the interest of the people of new hampshire and, indeed, of all new england, and they were beginning to take sides. this process was hastened by a furious battle of pamphlets which broke out in . this logomachy of vituperation was opened by president wheelock who wrote an unsigned attack upon the trustees.[ ] another pamphlet followed immediately in support of that of wheelock.[ ] the trustees quickly answered by means of two pamphlets.[ ] the wheelock faction instantly replied.[ ] with the animosity and diligence of political, religious, and personal enemies, the adherents of the hostile factions circulated these pamphlets among the people, who became greatly excited. on august , , the trustees removed wheelock from the office of president,[ ] and thereby increased the public agitation. two days after wheelock's removal, the trustees elected as his successor the reverend francis brown of yarmouth, maine.[ ] during these years of increasing dissension, political parties were gradually drawn into the controversy; at the climax of it, the federalists found themselves supporting the cause of the trustees and the republicans that of wheelock. in a general, and yet quite definite, way the issue shaped itself into the maintenance of chartered rights and the established religious order, as against reform in college management and equality of religious sects. into this issue was woven a contest over the state judiciary. the judiciary laws of new hampshire were confused and inadequate and the courts had fallen in dignity. during the republican control of the state, republicans had been appointed to all judicial positions.[ ] when, in , the federalists recovered supremacy, they, in turn, enacted a statute, the effect of which was the ousting of the republican judges and the appointment of federalists in their stead.[ ] the republicans made loud and savage outcry against this federalist "outrage." upon questions so absurdly incongruous a political campaign raged throughout new hampshire during the autumn and winter of . in march, , the republicans elected william plumer governor,[ ] and a republican majority was sent to the legislature.[ ] bills for the reform of the judiciary[ ] and the management of dartmouth college[ ] were introduced. that relating to dartmouth changed the name of the college to "dartmouth university," increased the number of trustees from twelve to twenty-one, provided for a board of twenty-five overseers with a veto power over acts of the trustees, and directed the president of the "university" to report annually to the governor of the state upon the management and conditions of the institution. the governor and council of state were empowered to appoint the overseers; to fill up the existing board of trustees to the number of twenty-one; and authorized to inspect the "university" and report to the legislature concerning it at least once in every five years.[ ] in effect the act annulled the charter and brought the college under the control of the legislature. the bitterness occasioned by the passage of this legislation was intense. seventy-five members of the house entered upon the journal their formal and emphatic protest.[ ] the old trustees adopted elaborate resolutions, declining to accept the provisions of the law and assigning many reasons for their action. among their criticisms of the act, the fact that it violated the contract clause of the national constitution was mentioned almost incidentally. in summing up their argument, the trustees declared that "if the act ... has its intended operation and effect, every literary institution in the state will hereafter hold its rights, privileges and property, not according to the settled established principles of law, but according to the arbitrary will and pleasure of every successive legislature."[ ] in later resolutions the old trustees declined to accept the provisions of the law, "but do hereby expressly refuse to act under the same."[ ] the governor and council promptly appointed trustees and overseers of the new university; among the latter was joseph story. the old trustees were defiant and continued to run the college. when the winter session of the legislature met, governor plumer sharply denounced their action;[ ] and two laws were passed for the enforcement of the college acts, the second of which provided that any person assuming to act as trustee or officer of the college, except as provided by law, should be fined $ for each offense.[ ] the trustees of the university "removed" the old trustees of the college and the president, and the professors who adhered to them.[ ] each side took its case to the people.[ ] the new régime ousted the old faculty from the college buildings and the faculty of the university were installed in them. wheelock was elected president of the state institution.[ ] the college faculty procured quarters in rowley hall near by, and there continued their work, the students mostly adhering to them.[ ] the college trustees took great pains to get the opinion of the best lawyers throughout new hampshire,[ ] as well as the advice of their immediate counsel, jeremiah mason, jeremiah smith, and daniel webster, the three ablest members of the new england bar, all three of them accomplished politicians.[ ] william h. woodward, who for years had been secretary and treasurer of the college, had in his possession the records, account books, and seal. as one of the wheelock faction he declined to recognize the college trustees and acted with the board of the university. the college trustees removed him from his official position on the college board;[ ] and on february , , brought suit against him in the court of common pleas of grafton county for the recovery of the original charter, the books of record and account, and the common seal--all of the value of $ , . by the consent of the parties the case was taken directly before the superior court of appeals, and was argued upon an agreed state of facts returned by the jury in the form of a special verdict.[ ] there were two arguments in the court of appeals, the first during may and the second during september, . the court consisted of william m. richardson, chief justice, and samuel bell and levi woodbury, associate justices, all republicans appointed by governor plumer. mason, smith, and webster made uncommonly able and learned arguments. the university was represented by george sullivan and ichabod bartlett, who, while good lawyers, were no match for the legal triumvirate that appeared for the college.[ ] the principle upon which marshall finally overthrew the new hampshire law was given a minor place[ ] in the plans as well as in the arguments of webster, mason, and smith. the superior court of appeals decided against the college. the opinion, delivered by chief justice richardson, is able and persuasive. "a corporation, all of whose franchises are exercised for publick purposes, is a publick corporation"--a gift to such a corporation "is in reality a gift to the publick."[ ] the corporation of dartmouth college is therefore public. "who has any private interest either in the objects or the property of this institution?" if all its "property ... were destroyed, the loss would be exclusively publick." the trustees, as individuals, would lose nothing. "the office of trustee of dartmouth college is, in fact, a publick trust, as much so as the office of governor, or of judge of this court."[ ] no provision in the state or national constitution prevents the control of the college by the legislature. the constitutional provisions cited by counsel for the college[ ] "were, most manifestly, intended to protect private rights only."[ ] no court has ever yet decided that such a charter as that of dartmouth college is in violation of the contract clause of the national constitution, which "was obviously intended to protect private rights of property, and embraces all contracts relating to private property." this clause "was not intended to limit the power of the states" over their officers or "their own civil institutions";[ ] otherwise divorce laws would be void. so would acts repealing or modifying laws under which the judges, sheriffs, and other officers were appointed. even if the royal charter is a contract, it does not, cannot forever, prevent the legislature from modifying it for the general good (as, for instance, by increasing the number of trustees) "however strongly the publick interest might require" this to be done. "such a contract, in relation to a publick institution, would ... be absurd and repugnant to the principles of all government. the king had no power to make such a contract," and neither has the legislature. if the act of june had provided that "the twenty-one trustees should forever have the exclusive controul of this institution, and that no future legislature should add to their number," it would be as invalid as an act that the "number of judges of this court should never be augmented."[ ] it is against "sound policy," richardson affirmed, to place the great institutions of learning "within the absolute controul of a few individuals, and out of the controul of the sovereign power.... it is a matter of too great moment, too intimately connected with the publick welfare and prosperity, to be thus entrusted in the hands of a few."[ ] so the new hampshire court adjudged that the college acts were valid and binding upon the old trustees "without acceptance thereof, or assent thereto by them." and the court specifically declared that such legislation was "not repugnant to the constitution of the united states."[ ] immediately the case was taken to the supreme court by writ of error, which assigned the violation of the national constitution by the college acts as the ground of appeal.[ ] on march , , webster opened the argument before a full bench.[ ] only a few auditors were present, and these were lawyers[ ] who were in washington to argue other cases.[ ] stirred as new hampshire and the new england states were by the college controversy, the remainder of the country appears to have taken no interest in it. indeed, west and south of the hudson, the people seem to have known nothing of the quarrel. the capital was either ignorant or indifferent. moreover, webster had not, as yet, made that great reputation, in washington, as a lawyer as well as an orator which, later, became his peculiar crown of glory. at any rate, the public was not drawn to the court-room on that occasion.[ ] the argument was one of the shortest ever made in a notable case before the supreme court during the twenty-eight years of its existence up to this time. not three full days were consumed by counsel on both sides--a space of time frequently occupied by a single speaker in hearings of important causes.[ ] in talents, bearing, and preparation the attorneys for the college were as much superior to those for the university as, in the chase impeachment trial, the counsel for the defense were stronger than the house managers.[ ] indeed, the similarity of the arguments in the chase trial and in the dartmouth case, in respect to the strength and preparation of opposing counsel, is notable; and in both cases the victory came to the side having the abler and better-prepared advocates. with webster for the college was joseph hopkinson of philadelphia, who had so distinguished himself in the chase trial exactly thirteen years earlier. hopkinson was now in his forty-ninth year, the unrivaled leader of the philadelphia bar and one of the most accomplished of american lawyers.[ ] it would seem incredible that sensible men could have selected such counsel to argue serious questions before any court as those who represented the university in this vitally important controversy. the obvious explanation is that the state officials and the university trustees were so certain of winning that they did not consider the employment of powerful and expensive attorneys to be necessary.[ ] in fact, the belief was general that the contest was practically over and that the appeal of the college to the supreme court was the pursuit of a feeble and forlorn hope. even after his powerful and impressive argument in the supreme court, webster declared that he had never allowed himself "to indulge any great hopes of success."[ ] it was not unnatural, then, that the state and the university should neglect to employ adequate counsel. john holmes, a representative in congress from that part of massachusetts which afterward became the state of maine, appeared for the university. he was notoriously unfitted to argue a legal question of any weight in any court. he was a busy, agile, talkative politician of the roustabout, hail-fellow-well-met variety, "a power-on-the-stump" orator, gifted with cheap wit and tawdry eloquence.[ ] associated with holmes was william wirt, recently appointed attorney-general. at that particular time wirt was all but crushed by overwork, and without either leisure or strength to master the case and prepare an argument.[ ] never in wirt's life did he appear in any case so poorly equipped as he was in the dartmouth controversy.[ ] webster's address was a combination of the arguments made by mason and smith in the new hampshire court. although the only question before the supreme court was whether the college acts violated the contract clause of the constitution, webster gave comparatively scant attention to it; or, perhaps it might be said that most of his argument was devoted to laying the foundation for his brief reasoning on the main question. in laying this foundation, webster cleverly brought before the court his version of the history of the college, the situation in new hampshire, the plight of institutions like dartmouth, if the college acts were permitted to stand. the facts were, said webster, that wheelock had founded a private charity; that, to perpetuate this, the charter created a corporation by the name of "the trustees of dartmouth college," with the powers, privileges, immunities, and limitations set forth in the charter. that instrument provided for no public funds, but only for the perpetuation and convenient management of the private charity. for nearly half a century the college "thus created had existed, uninterruptedly, and usefully." then its happy and prosperous career was broken by the rude and despoiling hands of the legislature of the state which the college had so blessed by the education of new hampshire youth. what has the legislature done to the college? it has created a new corporation and transferred to it "all the _property_, _rights_, _powers_, _liberties and privileges_ of the old corporation." the spirit and the letter of the charter were wholly changed by the college acts.[ ] moreover, the old trustees "are to be _punished_" for not accepting these revolutionary laws. a single fact reveals the confiscatory nature of these statutes: under the charter the president, professors, and tutors of the college had a right to their places and salaries, "subject to the twelve trustees alone"; the college acts change all this and make the faculty "accountable to new masters." if the legislature can make such alterations, it can abolish the charter "rights and privileges altogether." in short, if this legislation is sustained, the old trustees "have no _rights_, _liberties_, _franchises_, _property or privileges_, which the legislature may not revoke, annul, alienate or transfer to others whenever it sees fit." such acts are against "common right" as well as violations of the state and national constitutions.[ ] although, says webster, nothing is before the court but the single question of the violation of the national constitution, he will compare the new hampshire laws with "fundamental principles" in order that the court may see "their true nature and character." regardless of written constitutions, "these acts are not the exercise of a power properly legislative." they take away "vested rights"; but this involves a "forfeiture ... to ... declare which is the proper province of the judiciary."[ ] dartmouth college is not a civil but "an _eleemosynary_ corporation," a "private charity"; and, as such, not subject to the control of public authorities.[ ] does dartmouth college stand alone in this respect? no! practically all american institutions of learning have been "established ... by incorporating governours, or trustees.... all such corporations are ... in the strictest legal sense a private charity." even harvard has not "any surer title than dartmouth college. it may, to-day, have more friends; but to-morrow it may have more enemies. its legal rights are the same. so also of yale college; and indeed of all others."[ ] from the time of magna charta the privilege of being a member of such eleemosynary corporations "has been the object of legal protection." to contend that this privilege may be "taken away," because the trustees derive no "pecuniary benefit" from it, is "an extremely narrow view." as well say that if the charter had provided that each trustee should be given a "commission on the disbursement of the funds," his status and the nature of the corporation would have been changed from public to private. are the rights of the trustees any the less sacred "because they have undertaken to administer it [the trust] gratuitously?... as if the law regarded no rights but the rights of money, and of visible tangible property!"[ ] the doctrine that all property "of which the use may be beneficial to the publick, belongs therefore to the publick," is without principle or precedent. in this very matter of dartmouth college, wheelock might well have "conveyed his property to trustees, for precisely such uses as are described in this charter"--yet nobody would contend that any legislature could overthrow such a private act. "who ever appointed a legislature to administer his charity? or who ever heard, before, that a gift to a _college_, or _hospital_, or an _asylum_, was, in reality, nothing but a gift to the state?"[ ] vermont has given lands to the college; was this a gift to new hampshire? "what hinders vermont ... from resuming her grants," upon the ground that she, equally with new hampshire, is "the representative of the publick?" in , vermont had "granted to the respective towns in that state, certain glebe lands lying within those towns _for the sole use and support of religious worship_." five years later, the legislature of that state repealed this grant; "but this court declared[ ] that the act of , 'so far as it granted the glebes to the towns, _could not afterwards be repealed by the legislature, so as to divest the rights of the towns under the grant_.'"[ ] so with the trustees of dartmouth college. the property entrusted to them was "private property"; and the right to "administer the funds, and ... govern the college was a _franchise_ and _privilege_, solemnly granted to them," which no legislature can annul. "the use being publick in no way diminishes their legal estate in the property, or their title to the franchise." since "the acts in question violate property, ... take away privileges, immunities, and franchises, ... deny to the trustees the protection of the law," and "are retrospective in their operation," they are, in all respects, "against the constitution of new hampshire."[ ] it will be perceived by now that webster relied chiefly on abstract justice. his main point was that, if chartered rights could be interfered with at all, such action was inherently beyond the power of the legislature, and belonged exclusively to the judiciary. in this webster was rigidly following smith and mason, neither of whom depended on the violation of the contract clause of the national constitution any more than did webster. well did webster know that the supreme court of the united states could not consider the violation of a state constitution by a state law. he merely indulged in a device of argument to bring before marshall and the associate justices those "fundamental principles," old as magna charta, and embalmed in the state constitution, which protect private property from confiscation.[ ] toward the close of his argument, webster discusses the infraction of the national constitution by the new hampshire college acts, a violation the charge of which alone gave the supreme court jurisdiction over the case. what, asks webster, is the meaning of the words, "no state shall pass any ... law impairing the obligation of contracts"? madison, in the _federalist_, clearly states that such laws "'are contrary to the first principles of the social compact, and to every principle of sound legislation.'" but this is not enough. "our own experience," continues madison, "has taught us ... that additional fences" should be erected against spoliations of "personal security and private rights." this was the reason for inserting the contract clause in the national constitution--a provision much desired by the "sober people of america," who had grown "weary of the fluctuating policy" of the state governments and beheld with anger "that sudden changes, and legislative interferences in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators." these, said webster, were the words of james madison in number of the _federalist_. high as such authority is, one still more exalted and final has spoken, and upon the precise point now in controversy. that authority is the supreme court itself. in fletcher _vs._ peck[ ] this very tribunal declared specifically that "a _grant_ is a contract, within the meaning of this provision; and that a grant by a state is also a contract, as much as the grant of an individual."[ ] this court went even further when, in new jersey _vs._ wilson,[ ] it decided that "a grant by a state before the revolution is as much to be protected as a grant since."[ ] the principle announced in these decisions was not new, even in america. even before fletcher _vs._ peck and new jersey _vs._ wilson, this court denied[ ] that a legislature "can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to such purposes as they please, without the consent or default of the corporators ...; and we think ourselves standing upon the principles of _natural justice_, upon the _fundamental laws of every free government_, upon the spirit and letter of the constitution of the united states, and upon the decisions of the most respectable judicial tribunals, in resisting such a doctrine."[ ] from the beginning of our government until this very hour, continues webster, such has been the uniform language of this honorable court. the principle that a legislature cannot "repeal statutes creating private corporations" must be considered as settled. it follows, then, that if a legislature cannot repeal such laws entirely, it cannot repeal them in part--cannot "impair them, or essentially alter them without the consent of the corporators."[ ] in the case last cited[ ] the property granted was land; but the dartmouth charter "is embraced within the very terms of that decision," since "a grant of corporate powers and privileges is as much a _contract_ as a grant of land."[ ] even the state court concedes that if dartmouth college is a private corporation, "its rights stand on the same ground as those of an individual"; and that tribunal rests its judgment against the college on the sole ground that it is a public corporation.[ ] dartmouth college is not the only institution affected by this invasion of chartered rights. "every college, and all the literary institutions of the country" are imperiled. all of them exist because of "the inviolability of their charters." shall their fate depend upon "the rise and fall of popular parties, and the fluctuations of political opinions"? if so, "colleges and halls will ... become a theatre for the contention of politicks. party and faction will be cherished in the places consecrated to piety and learning." "we had hoped, earnestly hoped," exclaimed webster, "that the state court would protect dartmouth college. that hope has failed. it is here, that those rights are now to be maintained, or they are prostrated forever." he closed with a long latin quotation, not a word of which marshall understood, but which, delivered in webster's sonorous tones and with webster's histrionic power, must have been prodigiously impressive.[ ] undoubtedly it was at this point that the incomparable actor, lawyer, and orator added to his prepared peroration that dramatic passage which has found a permanent place in the literature of emotional eloquence. although given to the world a quarter of a century after webster's speech was delivered, and transmitted through two men of vivid and creative imaginations, there certainly is some foundation for the story. rufus choate in his "eulogy of webster," delivered at dartmouth college in , told, for the first time, of the incident as narrated to him by professor chauncey a. goodrich, who heard webster's argument. when webster had apparently finished, says goodrich, he "stood for some moments silent before the court, while every eye was fixed intently upon him." at length, addressing the chief justice, webster delivered that famous peroration ending: "'sir, you may destroy this little institution; it is weak; it is in your hands! i know it is one of the lesser lights in the literary horizon of our country. you may put it out. but if you do so, you must carry through your work! you must extinguish, one after another, all those great lights of science which, for more than a century, have thrown their radiance over our land! "'it is, sir, as i have said, a small college. and yet, _there are those who love it_----'"[ ] then, testifies goodrich, webster broke down with emotion, his lips quivered, his cheeks trembled, his eyes filled with tears, his voice choked. in a "few broken words of tenderness" he spoke of his love for dartmouth in such fashion that the listeners were impressed with "the recollections of father, mother, brother, and all the trials and privations through which he had made his way into life."[ ] goodrich describes the scene in the court-room, "during these two or three minutes," thus: "chief justice marshall, with his tall and gaunt figure bent over as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and eyes suffused with tears; mr. justice washington at his side,--with his small and emaciated frame, and countenance more like marble than i ever saw on any other human being,--leaning forward with an eager, troubled look; and the remainder of the court, at the two extremities, pressing, as it were, toward a single point, while the audience below were wrapping themselves round in closer folds beneath the bench to catch each look, and every movement of the speaker's face." recovering "his composure, and fixing his keen eye on the chief justice," webster, "in that deep tone with which he sometimes thrilled the heart of an audience," exclaimed: "'sir, i know not how others may feel,' (glancing at the opponents of the college before him,) 'but, for myself, when i see my alma mater surrounded, like cæsar in the senate-house, by those who are reiterating stab upon stab, i would not, for this right hand, have her turn to me, and say, _et tu quoque, mi fili!_'"[ ] exclusive of his emotional finish, webster's whole address was made up from the arguments of jeremiah mason and jeremiah smith in the state court.[ ] this fact webster privately admitted, although he never publicly gave his associates the credit.[ ] when farrar's "report," containing mason's argument, was published, story wrote mason that he was "exceedingly pleased" with it. "i always had a desire that the question should be put upon the broad basis you have stated; and it was a matter of regret that we were so stinted in jurisdiction in the supreme court, that half the argument could not be met and enforced. you need not fear a comparison of your argument with any in our annals."[ ] thus story makes plain, what is apparent on the face of his own and marshall's opinion, that he considered the master question involved to be that the college acts were violative of fundamental principles of government. could the supreme court have passed upon the case without regard to the constitution, there can be no doubt that the decision would have been against the validity of the new hampshire laws upon the ground on which mason, smith, and webster chiefly relied. webster, as we have seen, had little faith in winning on the contract clause and was nervously anxious that the controversy should be presented to the supreme court by means of a case which would give that tribunal greater latitude than was afforded by the "stinted jurisdiction" of which story complained. indeed, story openly expressed impatience that the court was restricted to a consideration of the contract clause. upon his return to massachusetts after the argument, story as much as told webster that another suit should be brought which could be taken to the supreme court, and which would permit the court to deal with all the questions raised by the new hampshire college acts. webster's report of this conversation is vital to an understanding of the views of the chief justice, as well as of those of story, since the latter undoubtedly stated marshall's views as well as his own. "i saw judge story as i came along," webster reported to mason. "he is evidently expecting a case which shall present all the questions. it is not of great consequence whether the actions or action, go up at this term, except that it would give it an earlier standing on the docket next winter. "the question which we must raise in one of these actions, is, 'whether, by the _general principles of our governments_, the state legislatures be not restrained from divesting vested rights?' this, of course, independent of the constitutional provision respecting contracts. on this question [the maintenance of vested rights by "general principles"] i have great confidence in a decision on the right side. this is the proposition with which you began your argument at exeter, and which i endeavored to state from your minutes at washington.... on _general_ principles, i am very confident the court at washington would be with us."[ ] holmes followed webster. "the god-like daniel" could not have wished for a more striking contrast to himself. in figure, bearing, voice, eye, intellect, and personality, the maine congressman, politician, and stump-speaker, was the antithesis of webster. for three hours holmes declaimed "the merest stuff that was ever uttered in a county court."[ ] his "argument" was a diffuse and florid repetition of the opinion of chief justice richardson, and was one of those empty and long-winded speeches which marshall particularly disliked. wirt did his best to repair the damage done by holmes; but he was so indifferently prepared,[ ] and so physically exhausted, that, breaking down in the midst of his address, he asked the court to adjourn that he might finish next day;[ ] and this the bored and weary justices were only too willing to do. wirt added nothing to the reasoning and facts of richardson's opinion which was in the hands of marshall and his associates. the argument was closed by joseph hopkinson; and here again fate acted as stage manager for dartmouth, since the author of "hail columbia"[ ] was as handsome and impressive a man as webster, though of an exactly opposite type. his face was that of the lifelong student, thoughtful and refined. his voice, though light, had a golden tone. his manner was quiet, yet distinguished. [illustration: joseph hopkinson] joseph hopkinson showed breeding in every look, movement, word, and intonation.[ ] he had a beautiful and highly trained mind, equipped with immense and accurate knowledge systematically arranged.[ ] it is unfortunate that space does not permit even a brief _précis_ of hopkinson's admirable argument.[ ] he quite justified webster's assurance to brown that "mr. hopkinson ... will do all that man can do."[ ] at eleven o'clock of march , , the morning after the argument was concluded, marshall announced that some judges were of "different opinions, and that some judges had not formed opinions; consequently, the cause must be continued."[ ] on the following day the court adjourned. marshall, washington, and story[ ] were for the college, duval and todd were against it, and livingston and johnson had not made up their minds.[ ] during the year that intervened before the court again met in february, , hope sprang up in the hearts of dartmouth's friends, and they became incessantly active in every legitimate way. webster's argument was printed and placed in the hands of all influential lawyers in new england. chancellor james kent of new york was looked upon by the bench and bar of the whole country as the most learned of american jurists and, next to marshall, the ablest.[ ] the views of no other judge were so sought after by his fellow occupants of the bench. charles marsh of new hampshire, one of the trustees of the college and a warm friend of kent, sent him webster's argument. while on a vacation in vermont kent had read the opinion of chief justice richardson and, "on a hasty perusal of it," was at first inclined to think the college acts valid, because he was "led by the opinion to assume the fact that dartmouth college was a public establishment for purposes of a general nature."[ ] webster's argument changed kent's views. during the summer of , justice johnson, of the national supreme court, was in albany, where kent lived, and conferred with the chancellor about the dartmouth case. kent told johnson that he thought the new hampshire college acts to be against natural right and in violation of the contract clause of the national constitution.[ ] it seems fairly certain also that livingston asked for the chancellor's opinion, and was influenced by it. webster sent story, with whom he was on terms of cordial intimacy, "five copies of our argument." evidently webster now knew that story was unalterably for the college, for he adds these otherwise startling sentences: "if you send one of them to each of such of the judges as you think proper, you will of course do it in the manner least likely to lead to a feeling that any indecorum has been committed by the plaintiffs."[ ] in some way, probably from the fact that story was an intimate friend of plumer, a rumor had spread, before the case was argued, that he was against the college trustees. doubtless this impression was strengthened by the fact that governor plumer had appointed story one of the board of overseers of the new university. no shrewder politician than plumer ever was produced by new england. but story declined the appointment.[ ] he had been compromised, however, in the eyes of both sides. the friends of the college were discouraged, angered, frightened.[ ] in great apprehension, charles marsh, one of the college trustees, wrote hopkinson of story's appointment as overseer of the university and of the rumor in circulation. hopkinson answered heatedly that he would object to story's sitting in the case if the reports could be confirmed.[ ] although the efforts of the college to get its case before kent were praiseworthy rather than reprehensible, and although no smallest item of testimony had been adduced by eager searchers for something unethical, nevertheless out of the circumstances just related has been woven, from the materials of eager imaginations, a network of suspicion involving the integrity of the supreme court in the dartmouth decision.[ ] meanwhile the news had spread of the humiliating failure before the supreme court of the flamboyant holmes and the tired and exhausted wirt as contrasted with the splendid efforts of webster and hopkinson. the new hampshire officials and the university at last realized the mistake they had made in not employing able counsel, and resolved to remedy their blunder by securing the acknowledged leader of the american bar whose primacy no judge or lawyer in the country denied. they did what they should have done at the beginning--they retained william pinkney of maryland. traveling with him in the stage during the autumn of , hopkinson learned that the great lawyer had been engaged by the university. moreover, with characteristic indiscretion, pinkney told hopkinson that he intended to request a reargument at the approaching session of the supreme court. in alarm, hopkinson instantly wrote webster,[ ] who was dismayed by the news. of all men the one webster did not want to meet in forensic combat was the legal colossus from baltimore.[ ] pinkney applied himself to the preparation of the case with a diligence and energy uncommon even for that most laborious and painstaking of lawyers. apparently he had no doubt that the supreme court would grant his motion for a reargument. it was generally believed that some of the justices had not made up their minds; rearguments, under such circumstances, were usually granted and sometimes required by the court; and william pinkney was the most highly regarded by that tribunal of all practitioners before it. so, on february , , he took the washington stage at baltimore, prepared at every point for the supreme effort of his brilliant career.[ ] pinkney's purpose was, of course, well advertised by this time. by nobody was it better understood than by marshall and, indeed, by every justice of the supreme court. all of them, except duval and todd, had come to an agreement and consented to the opinion which marshall had prepared since the adjournment the previous year.[ ] none of them were minded to permit the case to be reopened. most emphatically john marshall was not. when, at eleven o'clock, february , , the marshal of the court announced "the honorable, the chief justice and the associate justices of the supreme court of the united states," marshall, at the head of his robed associates, walked to his place, he beheld pinkney rise, as did all others in the room, to greet the court. well did marshall know that, at the first opportunity, pinkney would ask for a reargument. from all accounts it would appear that pinkney was in the act of addressing the court when the chief justice, seemingly unaware of his presence, placidly announced that the court had come to a decision and began reading his momentous opinion.[ ] after a few introductory sentences the chief justice came abruptly to the main point of the dispute: "this court can be insensible neither to the magnitude nor delicacy of this question. the validity of a legislative act is to be examined; and the opinion of the highest law tribunal of a state is to be revised: an opinion which carries with it intrinsic evidence of the diligence, of the ability, and the integrity, with which it was formed. on more than one occasion this court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared that, in no doubtful case would it pronounce a legislative act to be contrary to the constitution. "but the american people have said, in the constitution of the united states, that 'no state shall pass any bill of attainder, _ex post facto_ law, or law impairing the obligation of contracts.' in the same instrument they have also said, 'that the judicial power shall extend to all cases in law and equity arising under the constitution.' on the judges of this court, then, is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the constitution of our country has placed beyond legislative control; and, however irksome the task may be, this is a duty from which we dare not shrink."[ ] then marshall, with, for him, amazing brevity, states the essential provisions of the charter and of the state law that modified it;[ ] and continues, almost curtly: "it can require no argument to prove that the circumstances of this case constitute a contract." on the faith of the charter "large contributions" to "a religious and literary institution" are conveyed to a corporation created by that charter. indeed, in the very application it is stated that these funds will be so applied. "surely in this transaction every ingredient of a complete and legitimate contract is to be found."[ ] this being so, is such a contract "protected" by the constitution, and do the new hampshire college acts impair that contract? marshall states clearly and fairly chief justice richardson's argument that to construe the contract clause so broadly as to cover the dartmouth charter would prevent legislative control of public offices, and even make divorce laws invalid; and that the intention of the framers of the constitution was to confine the operation of the contract clause to the protection of property rights, as the history of the times plainly shows.[ ] all this, says marshall, "may be admitted." the contract clause "never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice." divorce laws are not included, of course--they merely enable a court, "not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other." the "point on which the cause essentially depends" is "the true construction" of the dartmouth charter. if that instrument grants "political power," creates a "civil institution" as an instrument of government; "if the funds of the college be public property," or if the state government "be alone interested in its transactions," the legislature may do what it likes "unrestrained" by the national constitution.[ ] if, on the other hand, dartmouth "be a private eleemosynary institution," empowered to receive property "for objects unconnected with government," and "whose funds are bestowed by individuals on the faith of the charter; if the donors have stipulated for the future disposition and management of those funds in the manner prescribed by themselves," the case becomes more difficult.[ ] marshall then sets out compactly and clearly the facts relating to the establishment of wheelock's school; the granting and acceptance of the charter; the nature of the college funds which "consisted entirely of private donations." these facts unquestionably show, he avows, that dartmouth college is "an eleemosynary, and, as far as respects its funds, a private corporation."[ ] does the fact that the purpose of the college is the education of youth make it a public corporation? it is true that the government may found and control an institution of learning. "but is dartmouth college such an institution? is education altogether in the hands of government?" are all teachers public officers? do gifts for the advancement of learning "necessarily become public property, so far that the will of the legislature, not the will of the donor, becomes the law of donation?"[ ] certainly eleazar wheelock, teaching and supporting indians "at his own expense, and on the voluntary contributions of the charitable," was not a public officer. the legislature could not control his money and that given by others, merely because wheelock was using it in an educational charity. whence, then, comes "the idea that dartmouth college has become a public institution?... not from the source" or application of its funds. "is it from the act of incorporation?"[ ] such is the process by which marshall reaches his famous definition of the word "corporation": "a corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.... it possesses only those properties which the charter of its creation confers upon it.... among the most important are immortality, and ... individuality.... by these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being.... but ... it is no more a state instrument than a natural person exercising the same powers would be."[ ] this, says marshall, is obviously true of all private corporations. "the objects for which a corporation is created are universally such as the government wishes to promote." why should a private charity, incorporated for the purpose of education, be excluded from the rules that apply to other corporations? an individual who volunteers to teach is not a public officer because of his personal devotion to education; how, then, is it that a corporation formed for precisely the same service "should become a part of the civil government of the country?" because the government has authorized the corporation "to take and to hold property in a particular form, and for particular purposes, has the government a consequent right substantially to change that form, or to vary the purposes to which the property is to be applied?" such an idea is without precedent. can it be supported by reason?[ ] any corporation for any purpose is created only because it is "deemed beneficial to the country; and this benefit constitutes the consideration, and, in most cases, the sole consideration for the grant." this is as true of incorporated charities as of any other form of incorporation. of consequence, the government cannot, subsequently, assume a power over such a corporation which is "in direct contradiction to its [the corporate charter's] express stipulations." so the mere fact "that a charter of incorporation has been granted" does not justify a legislature in changing "the character of the institution," or in transferring "to the government any new power over it." "the character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. the right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. the same institutions, created for the same objects, though not incorporated, would be public institutions, and, of course, be controllable by the legislature. the incorporating act neither gives nor prevents this control. neither, in reason, can the incorporating act change the character of a private eleemosynary institution."[ ] for whose benefit was the property of dartmouth college given to that institution? for the people at large, as counsel insist? read the charter. does it give the state "any exclusive right to the property of the college, any exclusive interest in the labors of the professors?" does it not rather "merely indicate a willingness that new hampshire should enjoy those advantages which result to all from the establishment of a seminary of learning in the neighborhood? on this point we think it impossible to entertain a serious doubt." for the charter shows that, while the spread of education and religion was the object of the founders of the college, the "particular interests" of the state "never entered into the minds of the donors, never constituted a motive for their donation."[ ] it is plain, therefore, that every element of the problem shows "that dartmouth college is an eleemosynary institution, incorporated for the purpose of perpetuating ... the bounty of the donors, to the specified objects of that bounty"; that the trustees are legally authorized to perpetuate themselves and that they are "not public officers"; that, in fine, dartmouth college is a "seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation."[ ] there remains a question most doubtful of "all that have been discussed." neither those who have given money or land to the college, nor students who have profited by those benefactions, "complain of the alteration made in its charter, or think themselves injured by it. the trustees alone complain, and the trustees have no beneficial interest to be protected." can the charter "be such a contract as the constitution intended to withdraw from the power of state legislation?"[ ] wheelock and the other philanthropists who had endowed the college, both before and after the charter was granted, made their gifts "for something ... of inestimable value--... the perpetual application of the fund to its object, in the mode prescribed by themselves.... the corporation ... stands in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal." also the rights of the students "collectively" are "to be exercised ... by the corporation."[ ] the british parliament is omnipotent. yet had it annulled the charter, even immediately after it had been granted and conveyances made to the corporation upon the faith of that charter, "so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged." nevertheless, parliament would have had the power to perpetrate such an outrage. "then, as now, the donors would have had no interest in the property; ... the students ... no rights to be violated; ... the trustees ... no private, individual, beneficial interest in the property confided to their protection." but, despite the legal power of parliament to destroy it, "the contract would at that time have been deemed sacred by all." "what has since occurred to strip it of its inviolability? circumstances have not changed it. in reason, in justice, and in law, it is now what it was in ." the donors and trustees, on the one hand, and the crown on the other, were the original parties to the arrangement stated in the charter, which was "plainly a contract" between those parties. to the "rights and obligations" of the crown under that contract, "new hampshire succeeds."[ ] can such a contract be impaired by a state legislature? "it is a contract made on a valuable consideration. "it is a contract for the security and disposition of property. "it is a contract, on the faith of which real and personal estate has been conveyed to the corporation. "it is then a contract within the letter of the constitution, and within its spirit also, unless" the nature of the trust creates "a particular exception, taking this case out of the prohibition contained in the constitution." it is doubtless true that the "preservation of rights of this description was not particularly in the view of the framers of the constitution when the clause under consideration was introduced into that instrument," and that legislative interferences with contractual obligations "of more frequent recurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the state legislatures. "but although a particular and a rare case may not ... induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. it is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the american people when it was adopted. it is necessary to go farther, and to say that, had this particular case been suggested, the language [of the contract clause] would have been so varied as to exclude it, or it would have been made a special exception."[ ] can the courts now make such an exception? "on what safe and intelligible ground can this exception stand?" nothing in the language of the constitution; no "sentiment delivered by its contemporaneous expounders ... justify us in making it." does "the nature and reason of the case itself ... sustain a construction of the constitution, not warranted by its words?" the contract clause was made a part of the nation's fundamental law "to give stability to contracts." that clause in its "plain import" comprehends dartmouth's charter. does public policy demand a construction which will exclude it? the fate of all similar corporations is involved. "the law of this case is the law of all."[ ] is it so necessary that legislatures shall "new-model" such charters "that the ordinary rules of construction must be disregarded in order to leave them exposed to legislative alteration?" the importance attached by the american people to corporate charters like that of dartmouth college is proved by "the interest which this case has excited." if the framers of the constitution respected science and literature so highly as to give the national government exclusive power to protect inventors and writers by patents and copyrights, were those statesman "so regardless of contracts made for the advancement of literature as to intend to exclude them from provisions made for the security of ordinary contracts between man and man?"[ ] no man ever did or will found a college, "believing at the time that an act of incorporation constitutes no security for the institution; believing that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature. all such gifts are made in the pleasing, perhaps delusive hope, that the charity will flow forever in the channel which the givers have marked out for it." since every man finds evidence of this truth "in his own bosom," can it be imagined that "the framers of our constitution were strangers" to the same universal sentiment? although "feeling the necessity ... of giving permanence and security to contracts," because of the "fluctuating" course and "repeated interferences" of legislatures which resulted in the "most perplexing and injurious embarrassments," did the framers of the constitution nevertheless deem it "necessary to leave these contracts subject to those interferences?" strong, indeed, must be the motives for making such exceptions.[ ] finally, marshall declares that the "opinion of the court, after mature deliberation, is, that this is a contract, the obligation of which cannot be impaired without violating the constitution of the united states."[ ] do the new hampshire college acts impair the obligations of dartmouth's charter? that instrument gave the trustees "the whole power of governing the college"; stipulated that the corporation "should continue forever"; and "that the number of trustees should forever consist of twelve, and no more." this contract was made by the crown, a power which could have made "no violent alteration in its essential terms, without impairing its obligation." the powers and duties of the crown were, by the revolution, "devolved on the people of new hampshire." it follows that, since the crown could not change the charter of dartmouth without impairing the contract, neither can new hampshire. "all contracts, and rights, respecting property, remained unchanged by the revolution."[ ] as to whether the new hampshire college acts radically alter the charter of dartmouth college, "two opinions cannot be entertained." the state takes over the government of the institution. "the will of the state is substituted for the will of the donors, in every essential operation of the college.... the charter of exists no longer"--the college has been converted into "a machine entirely subservient to the will of government," instead of the "will of its founders."[ ] therefore, the new hampshire college laws "are repugnant to the constitution of the united states."[ ] on account of the death of woodward, who had been secretary and treasurer of the university, and formerly held the same offices in the college against whom the college trustees had brought suit, webster moved for judgment _nunc pro tunc_; and judgment was immediately entered accordingly. not for an instant could webster restrain the expression of his joy. before leaving the court-room he wrote his brother: "all is safe.... the opinion was delivered by the chief justice. it was very able and very elaborate; it goes the whole length, and leaves not an inch of ground for the university to stand on."[ ] he informed president brown that "all is safe and certain.... i feel a load removed from my shoulders much heavier than they have been accustomed to bear."[ ] to mason, webster describes marshall's manner: "the chief justice's opinion was in his own peculiar way. he reasoned along from step to step; and, not referring to the cases [cited], adopted the principles of them, and worked the whole into a close, connected, and very able argument."[ ] at the same time hopkinson wrote brown in a vein equally exuberant: "our triumph ... has been complete. five judges, only six attending, concur not only in a decision in our favor, but in placing it upon principles broad and deep, and which secure corporations of this description from legislative despotism and party violence for the future.... i would have an inscription over the door of your building, 'founded by eleazar wheelock, refounded by daniel webster.'"[ ] the high-tempered pinkney was vocally indignant. "he talked ... and blustered" ungenerously, wrote webster, "because ... the party was in a fever and he must do something for his fees. as he could not talk _in_ court, he therefore talked _out_ of court."[ ] as we have seen, marshall had prepared his opinion under his trees at richmond and in the mountains during the vacation of ; and he had barely time to read it to his associates before the opening of court at the session when it was delivered. but he afterward submitted the manuscript to story, who made certain changes, although enthusiastically praising it. "i am much obliged," writes marshall, "by the alterations you have made in the dartmouth college case & am highly gratified by what you say respecting it."[ ] story also delivered an opinion upholding the charter[ ]--one of his ablest papers. it fairly bristles with citations of precedents and historical examples. the whole philosophy of corporations is expounded with clearness, power, and learning. apparently justice livingston liked story's opinion even more than that of marshall. story had sent it to livingston, who, when returning the manuscript, wrote: it "has afforded me more pleasure than can easily be expressed. it was exactly what i had expected from you, and hope it will be adopted without alteration."[ ] at the time of the dartmouth decision little attention was paid to it outside of new hampshire and massachusetts.[ ] the people, and even the bar, were too much occupied with bank troubles, insolvency, and the swiftly approaching slavery question, to bother about a small new hampshire college. the profound effect of marshall's opinion was first noted in the _north american review_ a year after the chief justice delivered it. "perhaps no judicial proceedings in this country ever involved more important consequences, ... than the case of dartmouth college."[ ] important, indeed, were the "consequences" of the dartmouth decision. everywhere corporations were springing up in response to the necessity for larger and more constant business units and because of the convenience and profit of such organizations. marshall's opinion was a tremendous stimulant to this natural economic tendency. it reassured investors in corporate securities and gave confidence and steadiness to the business world. it is undeniable and undenied that america could not have been developed so rapidly and solidly without the power which the law as announced by marshall gave to industrial organization. one result of his opinion was, for the period, of even higher value than the encouragement it gave to private enterprise and the steadiness it brought to business generally; it aligned on the side of nationalism all powerful economic forces operating through corporate organization. a generation passed before railway development began in america; but marshall lived to see the first stage of the evolution of that mighty element in american commercial, industrial, and social life; and all of that force, except the part of it which was directly connected with and under the immediate influence of the slave power, was aggressively and most effectively nationalist. that this came to be the fact was due to marshall's dartmouth opinion more than to any other single cause. the same was true of other industrial corporate organizations. john fiske does not greatly exaggerate in his assertion that the law as to corporate franchises declared by marshall, in subjecting to the national constitution every charter granted by a state "went farther, perhaps, than any other in our history toward limiting state sovereignty and extending the federal jurisdiction."[ ] sir henry sumner maine has some ground for his rather dogmatic statement that the principle of marshall's opinion "is the basis of credit of many of the great american railway incorporations," and "has ... secured full play to the economical forces by which the achievement of cultivating the soil of the north american continent has been performed." marshall's statesmanship is, asserts maine, "the bulwark of american individualism against democratic impatience and socialistic fantasy."[ ] such views of the dartmouth decision are remarkably similar to those which story himself expressed soon after it was rendered. writing to chancellor kent story says: "unless i am very much mistaken the principles on which that decision rests will be found to apply with an extensive reach to all the great concerns of the people, and will check any undue encroachments upon civil rights, which the passions or the popular doctrines of the day may stimulate our state legislatures to adopt."[ ] the court's decision, however, made corporate franchises infinitely more valuable and strengthened the motives for procuring them, even by corruption. in this wise tremendous frauds have been perpetrated upon negligent, careless, and indifferent publics; and "enormous and threatening powers," selfish and non-public in their purposes and methods, have been created.[ ] but marshall's opinion put the public on its guard. almost immediately the states enacted laws reserving to the legislature the right to alter or repeal corporate charters; and the constitutions of several states now include this limitation on corporate franchises. yet these reservations did not, as a practical matter, nullify or overthrow marshall's philosophy of the sacredness of contracts. within the last half-century the tendency has been strongly away from the doctrine of the dartmouth decision, and this tendency has steadily become more powerful. the necessity of modifying and even abrogating legislative grants, more freely than is secured by the reservation to do so contained in state constitutions and corporate charters, has further restricted the dartmouth decision. it is this necessity that has produced the rapid development of "that well-known but undefined power called the police power,"[ ] under which laws may be passed and executed, in disregard of what marshall would have called contracts, provided such laws are necessary for the protection or preservation of life, health, property, morals, or order. the modern doctrine is that "the legislature cannot, by any contract, divest itself of the power to provide for these objects.... they are to be attained and provided for by such appropriate means as the legislative discretion may devise. that discretion can no more be bargained away than the power itself."[ ] aside from the stability which this pronouncement of the chief justice gave to commercial transactions in general, and the confidence it inspired throughout the business world, the largest permanent benefit of it to the american people was to teach them that faith once plighted, whether in private contracts or public grants, must not and cannot be broken by state legislation; that, by the fundamental law which they themselves established for their own government, they as political entities are forbidden to break their contracts by enacting statutes, just as, by the very spirit of the law, private persons are forbidden to break their contracts. if it be said that their representatives may betray the people, the plain answer is that the people must learn to elect honest agents. for exactly a century marshall's dartmouth opinion has been assailed and the supreme court itself has often found ways to avoid its conclusions. but the theory of the chief justice has shown amazing vitality. sixty years after marshall delivered it, chief justice waite declared that the principles it announced are so "imbedded in the jurisprudence of the united states as to make them to all intents and purposes a part of the constitution itself."[ ] thirty-one years after marshall died, justice davis avowed that "a departure from it [marshall's doctrine] _now_ would involve dangers to society that cannot be foreseen, would shock the sense of justice of the country, unhinge its business interests, and weaken, if not destroy, that respect which has always been felt for the judicial department of the government."[ ] as late as , justice brown asserted that it has "become firmly established as a canon of american jurisprudence."[ ] it was a principle which marshall introduced into american constitutional law, and, fortunately for the country, that principle still stands; but to-day the courts, when construing a law said to impair the obligation of contracts, most properly require that it be established that the unmistakable purpose of the legislature is to make an actual contract for a sufficient consideration.[ ] it is highly probable that in the present state of the country's development, the supreme court would not decide that the contract clause so broadly protects corporate franchises as marshall held a century ago. in considering the dartmouth decision, however, the state of things existing when it was rendered must be taken into account. it is certain that marshall was right in his interpretation of corporation law as it existed in ; right in the practical result of his opinion in that particular case; and, above all, right in the purpose and effect of that opinion on the condition and tendency of the country at the perilous time it was delivered. footnotes: [ ] see vol. i, , , of this work. [ ] see vol. iii, chap. x, of this work. [ ] cranch, . [ ] _ib._ . [ ] cranch, - . [ ] this was true also of the entire court, since all the justices concurred in marshall's opinions in both cases as far as the legislative violations of the contract clause were concerned. [ ] he was not at all related to the chief justice. see vol. i, footnote to - , of this work. [ ] chase: _history of dartmouth college and the town of hanover, new hampshire_, i, . [ ] chase, - . [ ] _ib._ . [ ] _ib._ - . [ ] dartmouth and the english trustees opposed incorporation and the bishops of the church of england violently resisted wheelock's whole project. (_ib._ .) [ ] farrar: _report of the case of the trustees of dartmouth college against william h. woodward_, , ; also see charter of dartmouth college, chase, - . (although the official copy of the charter appears in chase's history, the author cites farrar in the report of the case; the charter also is cited from his book.) [ ] chase, . [ ] see wheelock's will, _ib._ . [ ] young wheelock was very active in the revolution. he was a member of the new hampshire assembly in , a captain in the army in , a major the following year, and then lieutenant-colonel, serving on the staff of general horatio gates until called from military service by the death of his father in . (see smith: _history of dartmouth college_, .) [ ] chase, . [ ] rachel murch "to y^e session of y^e church of christ in hanover," april , , shirley: _dartmouth college causes and the supreme court of the untied states_, . [ ] shirley, - . [ ] _ib._ - . only three of the scores of congregationalist ministers in new hampshire were republicans. (_ib._ .) [ ] _ib._ . [ ] shirley, , - . [ ] _sketches of the history of dartmouth college and moors' charity school._ [ ] _a candid, analytical review of the sketches of the history of dartmouth college._ [ ] _vindication of the official conduct of the trustees_, etc., and _a true and concise narrative of the origin and progress of the church difficulties_, by benoni dewey, james wheelock, and benjamin j. gilbert. [ ] _answer to the "vindication_," etc., by josiah dunham. [ ] lord: _history of dartmouth college_, - . [ ] lord, . [ ] in the salary of chief justices of the court of common pleas for four of the counties was fixed at $ a year; and that of the other justices of those courts at $ . "the chief justice of said court in grafton county, $ , and the other justices in that court $ ." (act of june , _laws of new hampshire, _, .) [ ] acts of june and nov. , _laws of new hampshire, _, - ; barstow: _history of new hampshire_, - ; morison: _life of jeremiah smith_, - . this law was, however, most excellent. it established a supreme court and systematized the entire judicial system. [ ] this was the second time plumer had been elected governor. he was first chosen to that office in . plumer had abandoned the failing and unpatriotic cause of federalism in (plumer, ), and had since become an ardent follower of jefferson. [ ] the number of votes cast at this election was the largest ever polled in the history of the state up to that time. (_ib._ .) [ ] see act of june , _laws of new hampshire, _, - . this repealed the federalist judiciary acts of and revived laws repealed by those acts. (see barstow, , and plumer, - .) the burning question of equality of religious taxation was not taken up by this legislature. the bill was introduced in the state senate by the reverend daniel young, a methodist preacher, but it received only three votes. apparently the reform energy of the republicans was, for that session, exhausted by the judiciary and college acts. the "toleration act" was not passed until three years later. (mcclintock: _history of new hampshire_, - ; also barstow, .) this law is omitted from the published acts, although it is indexed. [ ] in his message to the legislature recommending reform laws for dartmouth college, governor plumer denounced the provision of the charter relating to the trustees as "hostile to the spirit and genius of a free government." (barstow, .) this message plumer sent to jefferson, who replied that the idea "that institutions, established for the use of the nation, cannot be touched nor modified, even to make them answer their end ... is most absurd.... yet our lawyers and priests generally inculcate this doctrine; and suppose that preceding generations ... had a right to impose laws on us, unalterable by ourselves; ... in fine, that the earth belongs to the dead, and not to the living." (jefferson to plumer, july , , plumer, - .) [ ] act of june , _laws of new hampshire_, , - ; and see lord, - . the temper of the republicans is illustrated by a joint resolution adopted june , , denouncing the increase of salaries of senators and representatives in congress, which "presents the most inviting inducements to avarice and ambition," "will introduce a monopolizing power," and "contaminate our elections." (act of june , _laws of new hampshire_, , - .) [ ] _journal_, house of representatives (n.h.), june , , - . [ ] resolutions of the trustees, lord, - . [ ] lord, . [ ] "it is an important question and merits your serious consideration whether a law passed and approved by all the constituted authorities of the state shall be carried into effect, or whether _a few individuals_ not vested with _any judicial authority_ shall be permitted to declare your statutes _dangerous and arbitrary, unconstitutional and void_: whether a _minority_ of the trustees of a literary institution formed for the education of your children shall be encouraged to inculcate the doctrine of resistance to the law and their example tolerated in disseminating principles of insubordination and rebellion against government." (plumer's message, nov. , , lord, .) [ ] acts of dec. and , , (_laws of new hampshire, _, - ; see also lord, .) [ ] lord, - . [ ] _ib._ - . [ ] _ib._ . [ ] lord, . so few students went with the university that it dared not publish a catalogue. (_ib._ .) [ ] _ib._ . [ ] one of the many stories that sprang up in after years about webster's management of the case is that, since the college was founded for the education of indians and none of them had attended for a long time, webster advised president brown to procure two or three. brown got a number from canada and brought them to the river beyond which were the college buildings. while the party were rowing across, the young indians, seeing the walls and fearing that they were to be put in prison, gave war whoops, sprang into the stream, swam to shore and fled. so webster had to go on without them. (harvey: _reminiscences and anecdotes of daniel webster_, - .) there is not the slightest evidence to support this absurd tale. (letters to the author from eugene f. clark, secretary of dartmouth college, and from professor john k. lord, author of _history of dartmouth college_.) [ ] lord, . [ ] farrar, . [ ] these arguments are well worth perusal. (see farrar, - ; also n.h. reports, - .) [ ] for instance, mason's argument, which is very compact, consists of forty-two pages of which only four are devoted to "the contract clause" of the national constitution and the violation of it by the new hampshire college act. (farrar, - ; n.h. - .) [ ] farrar, - ; n.h. - . [ ] farrar, - ; n.h. . [ ] the contract clause. [ ] farrar, ; n.h. . [ ] farrar, - ; n.h. . [ ] farrar, ; n.h. . [ ] farrar, ; n.h. . [ ] farrar, . [ ] _ib._ [ ] webster was then thirty-six years of age. [ ] goodrich's statement in brown: _works of rufus choate: with a memoir of his life_, i, . [ ] they were rufus greene amory and george black of boston, david b. ogden and "a mr. baldwin from new york," thomas sergeant and charles j. ingersoll of philadelphia, john wickham, philip norborne, nicholas and benjamin watkins leigh of virginia, and john mcpherson berrien of georgia. (webster to sullivan, feb. , , _priv. corres_.: webster, i, .) [ ] brown, i, . story makes no comment on the argument of the dartmouth case--a pretty sure sign that it attracted little attention in washington. contrast story's silence as to this argument with his vivid description of that of m'culloch _vs._ maryland (_infra_, chap. vi). goodrich attributes the scant attendance to the fact that the court sat "in a mean apartment of moderate size"; but that circumstance did not keep women as well as men from thronging the room when a notable case was to be heard or a celebrated lawyer was to speak. (see description of the argument of the case of the nereid, _supra_, - .) [ ] for example, in m'culloch _vs._ maryland, luther martin spoke for three days. (webster to smith, feb. , , van tyne, ; and see _infra_, chap, vi.) [ ] see vol. iii, chap, iv, of this work. [ ] the college trustees at first thought of employing luther martin to assist webster in the supreme court (brown to kirkland, nov. , , as quoted by warren in _american law review_, xlvi, ). it is possible that hopkinson was chosen instead, upon the advice of webster, who kept himself well informed of the estimate placed by marshall and the associate justices on lawyers who appeared before them. marshall liked and admired hopkinson, had been his personal friend for years, and often wrote him. when peters died in , marshall secured the appointment of hopkinson in his place. (marshall to hopkinson, march , , and same to same [no date, but during ], hopkinson mss.) [ ] it was considered to be a "needless expense" to send the original counsel, sullivan and bartlett, to washington. (lord, .) [ ] webster to mcgaw, july , , van tyne, . [ ] shirley, - . the fact that holmes was employed plainly shows the influence of "practical politics" on the state officials and the trustees of the university. the board voted december , , "to take charge of the case." benjamin hale, one of the new trustees, was commissioned to secure other counsel if holmes did not accept. apparently woodward was holmes's champion: "i have thought him extremely ready ... [a] good lawyer, inferior to d. w. only in point of oratory." (woodward to hall, jan. , , lord, - .) hardly had hale reached washington than he wrote woodward: "were you sensible of the low ebb of mr. holmes' reputation here, you would ... be unwilling to trust the cause with him." (hale to woodward, feb. , , _ib._ .) [ ] "it is late at night--the fag-end of a hard day's work. my eyes, hand and mind all tired.... i have been up till midnight, at work, every night, and still have my hands full.... i am now worn out ... extremely fatigued.... the supreme court is approaching. it will half kill you to hear that it will find me unprepared." (wirt to carr, jan. , , kennedy, ii, - .) wirt had just become attorney-general. apparently he found the office in very bad condition. the task of putting it in order burdened him. he was compelled to do much that was not "properly [his] duty." (_ib._ .) his fee in the dartmouth college case did not exceed $ . (hale to plumer, jan. , lord, .) [ ] "he seemed to treat this case as if his side could furnish nothing but declamation." (webster to mason, march , , _priv. corres._: webster, i, .) [ ] farrar, ; n.h. ; wheaton, ; and see curtis, i, - . [ ] farrar, - ; n.h. - ; wheaton, - . [ ] farrar, ; n.h. - ; wheaton, - . [ ] farrar, ; n.h. - ; wheaton, - . [ ] farrar, - ; n.h. - ; wheaton, - . [ ] farrar, - ; n.h. - ; wheaton, - . [ ] farrar, - ; n.h. ; wheaton, . [ ] in terrett _vs._ taylor, cranch, _et seq._ story delivered the unanimous opinion of the supreme court in this case. this fact was well known at the time of the passage of the college acts; and, in view of it, there is difficulty in understanding how story could have been expected to support the new hampshire legislation. (see _infra_, .) [ ] farrar, ; n.h. - ; wheaton, - . [ ] farrar, ; n.h. ; wheaton, . [ ] farrar, - ; n.h. - ; wheaton, - . [ ] see vol. iii, chap, x, of this work. [ ] farrar, - ; n.h. - ; wheaton, - . [ ] _supra_, . [ ] farrar, ; n.h. ; wheaton, . [ ] in terrett _vs._ taylor, see _supra_, footnote to . [ ] farrar, ; n.h. ; wheaton, . (italics the author's.) it will be observed that webster puts the emphasis upon "natural justice" and "fundamental laws" rather than upon the constitutional point. [ ] farrar, ; n.h. - ; wheaton, . [ ] terrett _vs._ taylor. [ ] farrar, ; n.h. ; wheaton, . [ ] farrar, ; n.h. . the two paragraphs containing these statements of webster are omitted in _wheaton's reports_. [ ] farrar, - ; n.h. ; wheaton, . [ ] brown, i, . [ ] _ib._ - . this scene, the movement and color of which grew in dignity and vividness through the innumerable repetitions of it, caught the popular fancy. speeches, poems, articles, were written about the incident. it became one of the chief sources from which the idolaters of webster drew endless adulation of that great man. [ ] see brown, i, ; curtis, i, - . chauncey allen goodrich was in his twenty-eighth year when he heard webster's argument. he was sixty-three when he gave choate the description which the latter made famous in his "eulogy of webster." [ ] compare their arguments with webster's. see farrar - ; - ; - . [ ] "your notes i found to contain the whole matter. they saved me great labor; but that was not the best part of their service; they put me in the right path.... the only new aspect of the argument was produced by going into cases to prove these ideas, which indeed lie at the very bottom of your argument." (webster to smith, march , , _priv. corres._: webster, i, - ; and see webster to mason, march , , _ib._ .) a year later, after the case had been decided, when the question of publishing farrar's _report_ of all the arguments and opinions in the dartmouth college case was under consideration, webster wrote mason: "my own interest would be promoted by _preventing_ the book. i shall strut well enough in the washington report, & if the 'book' should not be published, the world would not know where i borrowed my plumes--but i am still inclined to have the book--one reason is, that you & judge smith may have the credit which belongs to you." (webster to mason, april , , van tyne, .) farrar's _report_ was published in august, . it contains the pleadings and special verdict, the arguments of counsel, opinions, and the judgments in the state and national courts, together with valuable appendices. the farrar _report_ is indispensable to those who wish to understand this celebrated case from the purely legal point of view. [ ] story to mason, oct. , , story, i, . [ ] webster to mason, april , , _priv. corres._: webster, i, - . (italics the author's.) in fact three such suits were brought early in on the ground of diverse citizenship. (shirley, - .) any one of them would have enabled the supreme court to have passed on the "general principles" of contract and government. these cases, had they arrived on time, would have afforded story his almost frantically desired opportunity to declare that legislation violative of contracts was against "natural right"--an opinion he fervently desired to give. but the wiser marshall saw in the case, as presented to the supreme court on the contract guarantee of the constitution, the occasion to declare, in effect, that these same fundamental principles are embraced in the contract clause of the written constitution of the american nation. [ ] webster to mason, march , , _priv. corres._: webster, i, . "every body was grinning at the folly he uttered. bell could not stand it. he seized his hat and went off." (webster to smith, march , , _ib._ ; and see webster to brown, march , , van tyne, - .) holmes "has attempted as a politician ... such a desire to be admired by _everybody_, that he has ceased for weeks to be regarded by _anybody_.... in the dartmouth college cause, he sunk lower at the bar than he had in the hall of legislature." (daggett to mason, march , , hillard: _memoir and correspondence of jeremiah mason_, .) the contempt of the legal profession for holmes is shown by the fact that in farrar's _report_ but four and one half pages are given to his argument, while those of all other counsel for woodward (sullivan and bartlett in the state court and wirt in the supreme court) are published in full. [ ] "he made an apology for himself, that he had not had time to study the case, and had hardly thought of it, till it was called on." (webster to mason, march , , _priv. corres._: webster, i, - .) [ ] "before he concluded he became so exhausted ... that he was obliged to request the court to indulge him until the next day." (_boston daily advertiser_, march , .) "wirt ... argues a good cause well. in this case he said more nonsensical things than became him." (webster to smith, march , , _priv. corres._: webster, i, .) [ ] hopkinson wrote this anthem when marshall returned from france. (see vol. ii, , of this work.) [ ] this description of hopkinson is from philadelphia according to traditions gathered by the author. [ ] choate says that webster called to his aid "the ripe and beautiful culture of hopkinson." (brown, i, .) [ ] the same was true of hopkinson's argument for chase. (see vol. iii, chap. iv, of this work.) [ ] webster to brown, march , , van tyne, - . after hopkinson's argument webster wrote brown: "mr. hopkinson understood every part of the cause, and in his argument did it great justice." (webster to brown, march , , _priv. corres._: webster, i, ; and see webster to mason, march , , _ib._ - .) "mr. hopkinson closed the cause for the college with great ability, and in a manner which gave perfect satisfaction and delight to all who heard him." (_boston daily advertiser_, march , .) it was expected that the combined fees of webster and hopkinson would be $ , "not an unreasonable compensation." (marsh to brown, nov. , , lord, .) hopkinson was paid $ . (brown to hopkinson, may , , hopkinson mss.) at their first meeting after the decision, the trustees, "feeling the inadequacy" of the fees of all the lawyers for the college, asked mason, smith, webster, and hopkinson to sit for their portraits by gilbert stuart, the artist to be paid by the trustees. (shattuck to hopkinson, jan. , , enclosing resolution of the trustees, april , , attested by miles olcott, secretary, hopkinson mss.; also, webster to hopkinson, may , , _ib._) [ ] webster to smith, march , , _priv. corres._: webster, i, . [ ] many supposed that story was undecided, perhaps opposed to the college. in fact, he was as decided as marshall. (see _infra_, - , and footnote.) [ ] webster to smith, march , , _priv. corres._: webster, i, . [ ] for example, william wirt, monroe's attorney-general, in urging the appointment of kent, partisan federalist though he was, to the supreme bench to succeed justice livingston, who died march , , wrote that "kent holds so lofty a stand everywhere for almost matchless intellect and learning, as well as for spotless purity and high-minded honor and patriotism, that i firmly believe the nation at large would approve and applaud the appointment." (wirt to monroe, may , , kennedy, ii, .) [ ] kent to marsh, aug. , , shirley, . moreover, in , kent, as a member of the new york council of revision, had held that "charters of incorporation containing grants of personal and municipal privileges were not to be essentially affected without the consent of the parties concerned." (record of board, as quoted in _ib._ .) [ ] shirley, . shirley says that kent "agreed to draw up an opinion for johnson in this case." [ ] webster to story, sept. , , _priv. corres._: webster, i, . [ ] lord, . [ ] "the folks in this region are frightened.... it is ascertained that judge story ... is the original framer of the law.... they suppose that on this account the cause is hopeless before the sup. ct. of u.s. this is, however, report." (murdock to brown, dec. , , _ib._ .) murdock mentions pickering as one of those who believed the rumors about story. this explains much. the soured old federalist was an incessant gossip and an indefatigable purveyor of rumors concerning any one he did not like, provided the reports were bad enough for him to repeat. he himself would, with great facility, apply the black, if the canvas were capable of receiving it; and he could not forget that story, when a young man, had been a republican. [ ] hopkinson to marsh, dec. , , shirley, - . [ ] this is principally the work of john m. shirley in his book _dartmouth college causes and the supreme court of the united states_. the volume is crammed with the results of extensive research, strange conglomeration of facts, suppositions, inferences, and insinuations, so inextricably mingled that it is with the utmost difficulty that the painstaking student can find his way. shirley leaves the impression that justices johnson and livingston were improperly worked upon because they consulted chancellor kent. yet the only ground for this is that judge marsh sent webster's argument to kent, who was marsh's intimate friend; and that the reverend francis brown, president of dartmouth, went to see kent, reported that his opinion was favorable to the college, and that the effect of this would be good upon johnson and livingston. from the mere rumor, wholly without justification, that story was at first against the college--indeed, had drawn the college acts (for so the rumor grew, as rumors always grow)--shirley would have us believe, without any evidence whatever, that some improper influence was exerted over story. because webster said that there was something "left out" of the report of his argument, shirley declares that for a whole hour webster spoke as a federalist partisan in order to influence marshall. (shirley, .) but such an attempt would have been resented by every republican member of the court and, most of all, by marshall himself. moreover, marshall needed no such persuasion, nor, indeed, persuasion of any kind. his former opinions showed where he stood; so did the views which he had openly and constantly avowed since he was a member of the virginia house of burgesses in . the something "left out" of webster's reported argument was, of course, his extemporaneous and emotional peroration described by goodrich. these are only a very few instances of shirley's assumptions. yet, because of the mass of data his book contains, and because of the impossibility of getting out of them a connected narrative without the most laborious and time-consuming examination, together with the atmosphere of wrongdoing with which shirley manages to surround the harried reader, his volume has had a strong and erroneous effect upon general opinion. [ ] hopkinson to webster, nov. , , _priv. corres._: webster, i, - . "i suppose he expects to do something very extraordinary in it, as he says mr. wirt 'was not strong enough for it, has not back enough.'" (_ib._ .) [ ] both hopkinson and webster resolved to prevent pinkney from making his anticipated argument. (_ib._) [ ] not only did pinkney master the law of the case, but, in order to have at his command every practical detail of the controversy, he kept cyrus perkins, who succeeded woodward, deceased, as secretary of the university trustees, under continuous examination for an entire week. perkins knew every possible fact about the college controversy and submitted to pinkney the whole history of the dispute and also all documents that could illuminate the subject. "dr. perkins had been a week at baltimore, conferring with mr. pinkney." (webster to mason, feb. , , hillard, ; and see shirley, .) [ ] this fact was unknown to anybody but the justices themselves. "no public or general opinion seems to be formed of the opinion of any particular judge." (webster to brown, jan. , , _priv. corres._: webster, i, .) [ ] "on tuesday morning, he [pinkney] being in court, as soon as the judges had taken their seats, the chief justice said that in vacation the judges had formed opinions in the college case. he then immediately began reading his opinion, and, of course, nothing was said of a second argument." (webster to mason, feb. , , hillard, .) [ ] wheaton, . [ ] _ib._ - . [ ] wheaton, . [ ] _ib._ - . [ ] wheaton, - . [ ] _ib._ . [ ] _ib._ - . the statement of facts and of the questions growing out of them was by far the best work marshall did. in these statements he is as brief, clear, and pointed as, in his arguments, he is prolix, diffuse, and repetitious. [ ] _ib._ . [ ] wheaton, - . [ ] _ib._ . [ ] wheaton, . [ ] wheaton, - . [ ] _ib._ - . [ ] wheaton, - . [ ] _ib._ . [ ] _ib._ - . [ ] wheaton, . [ ] wheaton, . [ ] wheaton. . [ ] _ib._ - . [ ] wheaton, - . [ ] _ib._ . [ ] _ib._ . [ ] wheaton, - . [ ] _ib._ . [ ] webster "in court" to his brother, feb. , , _priv. corres._ webster, i, . [ ] webster to brown, feb. , , _ib._ [ ] webster to mason, feb. , , hillard, - . webster adds: "some of the other judges, i am told, have drawn opinions with more reference to authorities." (_ib._ .) [ ] hopkinson to brown, feb. , , _priv. corres._: webster, i, . [ ] webster to mason, april , , hillard, . [ ] marshall to story, may , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] wheaton, - . [ ] livingston to story, jan. , , story, i, . this important letter discredits the rumor that story at first thought the college acts valid. story sent copies of his opinion to eminent men other than his associates on the supreme bench, among them william prescott, father of the historian, a boston lawyer highly esteemed by the leaders of the american bar. "i have read your opinion with care and great pleasure," writes prescott. "in my judgment it is supported by the principles of our constitutions, and of all free governments, as well as by the authority of adjudged cases. as one of the public, i thank you for establishing a doctrine affecting so many valuable rights and interests, with such clearness and cogency of argument, and weight of authority as must in all probability prevent its ever being again disturbed, i see nothing i should wish altered in it. i hope it will be adopted without diminution or subtraction. you have placed the subject in some strong, and to me, new lights, although i had settled my opinion on the general question years ago." (prescott to story, jan. , , _ib._ .) [ ] for instance, the watchful niles does not even mention it in his all-seeing and all-recording _register_. also see warren, . [ ] _north american review_ ( ), x, . [ ] fiske: _essays, historical and literary_, i, . [ ] maine: _popular government_, . [ ] story to kent, aug. , , story, i, . [ ] see cooley: _constitutional limitations_ ( th ed.), footnote to . [ ] butchers' union, etc. _vs._ crescent city, etc. u.s. . [ ] beer company _vs._ massachusetts, u.s. ; and see fertilizing co. _vs._ hyde park, _ib._ . [ ] stone _vs._ mississippi, october, , otto ( u.s.) . [ ] the binghamton bridge, december, , wallace, . [ ] pearsall _vs._ great northern railway, u.s. . [ ] more has been written of marshall's opinion in this case than of any other delivered by him except that in marbury _vs._ madison. for recent discussions of the subject see russell: "status and tendencies of the dartmouth college case," _am. law rev._ xxx, - , an able, scholarly, and moderate paper; doe: "a new view of the dartmouth college case," _harvard law review_, vi, - , a novel and well-reasoned article; trickett: "the dartmouth college paralogism," _north american review_, xl, - , a vigorous radical essay; hall: "the dartmouth college case," _green bag_, xx, - , a short but brilliant attack upon the assailants of marshall's opinion; jenkins: "should the dartmouth college decision be recalled," _am. law rev._ li, - , a bright, informed, and thorough treatment from the extremely liberal point of view. a calm, balanced, and convincing review of the effect of the dartmouth decision on american economic and social life is that of professor edward s. corwin in his _marshall and the constitution_, - . when reading these comments, however, the student should, at the same time, carefully reëxamine marshall's opinion. chapter vi vitalizing the constitution the crisis is one which portends destruction to the liberties of the american people. (spencer roane.) the constitutional government of this republican empire cannot be practically enforced but by a fair and liberal interpretation of its powers. (william pinkney.) the judiciary of the united states is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. (jefferson.) the government of the union is emphatically and truly a government of the people. in form and substance it emanates from them. its powers are granted by them, and are to be exercised directly on them and for their benefit. (marshall.) although it was the third of the great causes to be decided by the supreme court in the memorable year, , m'culloch _vs._ maryland was the first in importance and in the place it holds in the development of the american constitution. furthermore, in his opinion in this case john marshall rose to the loftiest heights of judicial statesmanship. if his fame rested solely on this one effort, it would be secure. to comprehend the full import of marshall's opinion in this case, the reader must consider the state of the country as described in the fourth chapter of this volume. while none of his expositions of our fundamental law, delivered in the critical epoch from to , can be entirely understood without knowledge of the national conditions that produced them, this fact must be especially borne in mind when reviewing the case of m'culloch _vs._ maryland. [illustration: associate justices sitting with marshall in the case of m'culloch _versus_ maryland: story, johnson, washington, duval, livingston, todd] like most of the controversies in which marshall's constitutional opinions were pronounced, m'culloch _vs._ maryland came before the supreme court on an agreed case. the facts were that congress had authorized the incorporation of the second bank of the united states; that this institution had instituted a branch at baltimore; that the legislature of maryland had passed an act requiring all banks, established "without authority from the state," to issue notes only on stamped paper and only of certain denominations, or, in lieu of these requirements, only upon the payment of an annual tax of fifteen thousand dollars; that, in violation of this law, the baltimore branch of the national bank continued to issue its notes on unstamped paper without paying the tax; and that on may , , john james, "treasurer of the western shore," had sued james william m'culloch, the cashier of the baltimore branch, for the recovery of the penalties prescribed by the maryland statute.[ ] the immediate question was whether the maryland law was constitutional; but the basic issue was the supremacy of the national government as against the dominance of state governments. indeed, the decision of this case involved the very existence of the constitution as an "ordinance of nationality," as marshall so accurately termed it. at no time in this notable session of the supreme court was the basement room, where its sittings were now again held, so thronged with auditors as it was when the argument in m'culloch _vs._ maryland took place. "we have had a crowded audience of ladies and gentlemen," writes story toward the close of the nine days of discussion. "the hall was full almost to suffocation, and many went away for want of room."[ ] webster opened the case for the bank. his masterful argument in the dartmouth college case the year before had established his reputation as a great constitutional lawyer as well as an orator of the first class. he was attired in the height of fashion, tight breeches, blue cloth coat, cut away squarely at the waist, and adorned with large brass buttons, waist-coat exposing a broad expanse of ruffled shirt with high soft collar surrounded by an elaborate black stock.[ ] the senior counsel for the bank was william pinkney. he was dressed with his accustomed foppish elegance, and, as usual, was nervous and impatient. notwithstanding his eccentricities, he was webster's equal, if not his superior, except in physical presence and the gift of political management. with webster and pinkney was william wirt, then attorney-general of the united states, who had arrived at the fullness of his powers. maryland was represented by luther martin, still attorney-general for that state, then seventy-five years old, but a strong lawyer despite his half-century, at least, of excessive drinking. by his side was joseph hopkinson of philadelphia, now fifty years of age, one of the most learned men at the american bar. with martin and hopkinson was walter jones of washington, who appears to have been a legal genius, his fame obliterated by devotion to his profession and unaided by any public service, which so greatly helps to give permanency to the lawyer's reputation. all told, the counsel for both sides in m'culloch _vs._ maryland were the most eminent and distinguished in the republic. webster said in opening that hamilton had "exhausted" the arguments for the power of congress to charter a bank and that hamilton's principles had long been acted upon. after thirty years of acquiescence it was too late to deny that the national legislature could establish a bank.[ ] with meticulous care webster went over hamilton's reasoning to prove that congress can "pass all laws 'necessary and proper' to carry into execution powers conferred on it."[ ] assuming the law which established the bank to be constitutional, could maryland tax a branch of that bank? if the state could tax the bank at all, she could put it out of existence, since a "power to tax involves ... a power to destroy"[ ]--words that marshall, in delivering his opinion, repeated as his own. the truth was, said webster, that, in taxing the baltimore branch of the national bank, maryland taxed the national government itself.[ ] joseph hopkinson, as usual, made a superb argument--a performance all the more admirable as an intellectual feat in that, as an advocate for maryland, his convictions were opposed to his reasoning.[ ] walter jones was as thorough as he was lively, but he did little more than to reinforce the well-nigh perfect argument of hopkinson.[ ] on the same side the address of luther martin deserves notice as the last worthy of remark which that great lawyer ever made. old as he was, and wasted as were his astonishing powers, his argument was not much inferior to those of webster, hopkinson, and pinkney. martin showed by historical evidence that the power now claimed for congress was suspected by the opponents of the constitution, but denied by its supporters and called "a dream of distempered jealousy." so came the tenth amendment; yet, said martin, now, "we are asked to engraft upon it [the constitution] powers ... which were disclaimed by them [the advocates of the constitution], and which, if they had been fairly avowed at the time, would have prevented its adoption."[ ] could powers of congress be inferred as a necessary means to the desired end? why, then, did the constitution _expressly_ confer powers which, of necessity, must be implied? for instance, the power to declare war surely implied the power to raise armies; and yet that very power was granted in specific terms. but the power to create corporations "is not expressly delegated, either as an end or a means of national government."[ ] when martin finished, william pinkney, whom marshall declared to be "the greatest man he had ever seen in a court of justice,"[ ] rose to make what proved to be the last but one of the great arguments of that unrivaled leader of the american bar of his period. to reproduce his address is to set out in advance the opinion of john marshall stripped of pinkney's rhetoric which, in that day, was deemed to be the perfection of eloquence.[ ] for three days pinkney spoke. few arguments ever made in the supreme court affected so profoundly the members of that tribunal. story describes the argument thus: "mr. pinkney rose on monday to conclude the argument; he spoke all that day and yesterday, and will probably conclude to-day. i never, in my whole life, heard a greater speech; it was worth a journey from salem to hear it; his elocution was excessively vehement, but his eloquence was overwhelming. his language, his style, his figures, his arguments, were most brilliant and sparkling. he spoke like a great statesman and patriot, and a sound constitutional lawyer. all the cobwebs of sophistry and metaphysics about state rights and state sovereignty he brushed away with a mighty besom."[ ] indeed, all the lawyers in this memorable contest appear to have surpassed their previous efforts at the bar. marshall, in his opinion, pays this tribute to all their addresses: "both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument seldom, if ever, surpassed, have been displayed."[ ] after he had spoken, webster, who at that moment was intent on the decision of the dartmouth college case,[ ] became impatient. "our bank argument goes on--& threatens to be long," he writes jeremiah mason.[ ] four days later, while martin was still talking, webster informs jeremiah smith: "we are not yet thro. the bank question. martin has been _talking ds_. pinkney replies tomorrow & that finishes--i set out for home next day."[ ] the arguments in m'culloch _vs._ maryland occupied nine days.[ ] four days before the bank argument opened in the supreme court, the house took up the resolution offered by james johnson of virginia to repeal the bank's charter.[ ] the debate over this proposal continued until february , the third day of the argument in m'culloch _vs._ maryland. how, asked johnson, had the bank fulfilled expectations and promises? "what ... is our condition? surrounded by one universal gloom. we are met by the tears of the widow and the orphan."[ ] madison has "cast a shade" on his reputation by signing the bank bill--that "act of usurpation." under the common law the charter "is forfeited."[ ] the bank is a "mighty corporation," created "to overawe ... the local institutions, that had dealt themselves almost out of breath in supporting the government in times of peril and adversity." the financial part of the virginia republican party organization thus spoke through james pindall of that state.[ ] william lowndes of south carolina brilliantly defended the bank, but admitted that its "early operation" had been "injudicious."[ ] john tyler of virginia assailed the bank with notable force. "this charter has been violated," he said; "if subjected to investigation before a court of justice, it will be declared null and void."[ ] david walker of kentucky declared that the bank "is an engine of favoritism--of stock jobbing"--a machine for "binding in adamantine chains the blessed, innocent lambs of america to accursed, corrupt european tigers."[ ] in spite of all this eloquence, johnson's resolution was defeated, and the fate of the bank left in the hands of the supreme court. on march , , before a few spectators, mostly lawyers with business before the court, marshall read his opinion. it is the misfortune of the biographer that only an abstract can be given of this epochal state paper--among the very first of the greatest judicial utterances of all time.[ ] it was delivered only three days after pinkney concluded his superb address. since it is one of the longest of marshall's opinions and, by general agreement, is considered to be his ablest and most carefully prepared exposition of the constitution, it seems not unlikely that much of it had been written before the argument. the court was very busy every day of the session and there was little, if any, time for marshall to write this elaborate document. the suit against m'culloch had been brought nearly a year before the supreme court convened; marshall undoubtedly learned of it through the newspapers; he was intimately familiar with the basic issue presented by the litigation; and he had ample time to formulate and even to write out his views before the ensuing session of the court. he had, in the opinions of hamilton and jefferson,[ ] the reasoning on both sides of this fundamental controversy. it appears to be reasonably probable that at least the framework of the opinion in m'culloch _vs._ maryland was prepared by marshall when in richmond during the summer, autumn, and winter of - . the opening words of marshall are majestic: "a sovereign state denies the obligation of a law ... of the union.... the constitution of our country, in its most ... vital parts, is to be considered; the conflicting powers of the government of the union and of its members, ... are to be discussed; and an opinion given, which may essentially influence the great operations of the government."[ ] he cannot "approach such a question without a deep sense of ... the awful responsibility involved in its decision. but it must be decided peacefully, or remain a source of hostile legislation, perhaps of _hostility of a still more serious nature_."[ ] in these solemn words the chief justice reveals the fateful issue which m'culloch _vs._ maryland foreboded. that congress has power to charter a bank is not "an open question.... the principle ... was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department ... as a law of undoubted obligation.... an exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded." the first congress passed the act to incorporate a national bank. the whole subject was at the time debated exhaustively. "the bill for incorporating the bank of the united states did not steal upon an unsuspecting legislature, & pass unobserved," says marshall. moreover, it had been carefully examined with "persevering talent" in washington's cabinet. when that act expired, "a short experience of the embarrassments" suffered by the country "induced the passage of the present law." he must be intrepid, indeed, who asserts that "a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance."[ ] but marshall examines the question as though it were "entirely new"; and gives an historical account of the constitution which, for clearness and brevity, never has been surpassed.[ ] thus he proves that "the government proceeds directly from the people; ... their act was final. it required not the affirmance, and could not be negatived, by the state governments. the constitution when thus adopted ... bound the state sovereignties." the states could and did establish "a league, such as was the confederation.... but when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, ... acting directly on the people," it was the people themselves who acted and established a fundamental law for their government.[ ] the government of the american nation is, then, "emphatically, and truly, a government of the people. in form and in substance it emanates from them. its powers are granted by them, and are to be exercised directly on them, and for their benefit"[ ]--a statement, the grandeur of which was to be enhanced forty-four years later, when, standing on the battle-field of gettysburg, abraham lincoln said that "a government of the people, by the people, for the people, shall not perish from the earth."[ ] to be sure, the states, as well as the nation, have certain powers, and therefore "the supremacy of their respective laws, when they are in opposition, must be settled." marshall proceeds to settle that basic question. the national government, he begins, "is supreme within its sphere of action. this would seem to result necessarily from its nature." for "it is the government of all; its powers are delegated by all; it represents all, and acts for all. though any one state may be willing to control its operations, no state is willing to allow others to control them. the nation, on those subjects on which it can act, must necessarily bind its component parts." plain as this truth is, the people have not left the demonstration of it to "mere reason"--for they have, "in express terms, decided it by saying" that the constitution, and the laws of the united states which shall be made in pursuance thereof, "shall be the supreme law of the land," and by requiring all state officers and legislators to "take the oath of fidelity to it."[ ] the fact that the powers of the national government enumerated in the constitution do not include that of creating corporations does not prevent congress from doing so. "there is no phrase in the instrument which, like the articles of confederation, _excludes_ incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.... a constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of a prolixity of a legal code, and could scarcely be embraced by the human mind. it would probably never be understood by the public." the very "nature" of a constitution, "therefore requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those _objects be deduced from the nature of the objects themselves_." in deciding such questions "we must never forget," reiterates marshall, "that it is a _constitution_ we are expounding."[ ] this being true, the power of congress to establish a bank is undeniable--it flows from "the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies." consider, he continues, the scope of the duties of the national government: "the sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government.... a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. the power being given, it is the interest of the nation to facilitate its execution. it can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means."[ ] at this point marshall's language becomes as exalted as that of the prophets: "throughout this vast republic, from the st. croix to the gulf of mexico, from the atlantic to the pacific, revenue is to be collected and expended, armies are to be marched and supported. the exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed." here marshall the soldier is speaking. there is in his words the blast of the bugle of valley forge. indeed, the pen with which marshall wrote m'culloch _vs._ maryland was fashioned in the army of the revolution.[ ] the chief justice continues: "is that construction of the constitution to be preferred which would render these operations difficult, hazardous, and expensive?" did the framers of the constitution "when granting these powers for the public good" intend to impede "their exercise by withholding a choice of means?" no! the constitution "does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers."[ ] resorting to his favorite method in argument, that of repetition, marshall again asserts that the fact that "the power of creating a corporation is one appertaining to sovereignty and is not expressly conferred on congress," does not take that power from congress. if it does, congress, by the same reasoning, would be denied the power to pass most laws; since "all legislative powers appertain to sovereignty." they who say that congress may not select "any appropriate means" to carry out its admitted powers, "take upon themselves the burden of establishing that exception."[ ] the establishment of the national bank was a means to an end; the power to incorporate it is "as incidental" to the great, substantive, and independent powers expressly conferred on congress as that of making war, levying taxes, or regulating commerce.[ ] this is not only the plain conclusion of reason, but the clear language of the constitution itself as expressed in the "necessary and proper" clause[ ] of that instrument. marshall treats with something like contempt the argument that this clause does not mean what it says, but is "really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers"--a denial, in short, that, without this clause, congress is authorized to make laws.[ ] after conferring on congress all legislative power, "after allowing each house to prescribe its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind ... of the convention that an express power to make laws was necessary to enable the legislature to make them?"[ ] in answering the old jeffersonian argument that,[ ] under the "necessary and proper" clause, congress can adopt only those means absolutely "necessary" to the execution of express powers, marshall devotes an amount of space which now seems extravagant. but in the question was unsettled and acute; indeed, the republicans had again made it a political issue. the chief justice repeats the arguments made by hamilton in his opinion to washington on the first bank bill.[ ] some words have various shades of meaning, of which courts must select that justified by "common usage." "the word 'necessary' is of this description.... it admits of all degrees of comparison.... a thing may be necessary, very necessary, absolutely or indispensably necessary." for instance, the constitution itself prohibits a state from "laying 'imposts or duties on imports or exports, except what may be _absolutely_ necessary for executing its inspection laws'"; whereas it authorizes congress to "'make all laws which shall be necessary and proper'" for the execution of powers expressly conferred.[ ] did the framers of the constitution intend to forbid congress to employ "_any_" means "which might be appropriate, and which were conducive to the end"? most assuredly not! "the subject is the execution of those great powers on which the welfare of a nation essentially depends." the "necessary and proper" clause is found "in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.... to have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances."[ ] the contrary conclusion is tinged with "insanity." whence comes the power of congress to prescribe punishment for violations of national laws? no such general power is expressly given by the constitution. yet nobody denies that congress has this general power, although "it is expressly given in some cases," such as counterfeiting, piracy, and "offenses against the law of nations." nevertheless, the specific authorization to provide for the punishment of these crimes does not prevent congress from doing the same as to crimes not specified.[ ] now comes an example of marshall's reasoning when at his best--and briefest. "take, for example, the power 'to establish post-offices and post-roads.' this power is executed by the single act of making the establishment. but, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. and, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. it may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. this right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. so, of the punishment of the crimes of stealing or falsifying a record or process of a court of the united states, or of perjury in such court. to punish these offenses is certainly conducive to the due administration of justice. but courts may exist, and may decide the causes brought before them, though such crimes escape punishment. "the baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. the good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. it is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. it is a right incidental to the power, and conducive to its beneficial exercise."[ ] to attempt to prove that congress _might_ execute its powers without the use of other means than those absolutely necessary would be "to waste time and argument," and "not much less idle than to hold a lighted taper to the sun." it is futile to speculate upon imaginary reasons for the "necessary and proper" clause, since its purpose is obvious. it "is placed among the powers of congress, not among the limitations on those powers. its terms purport to enlarge, not to diminish the powers vested in the government.... if no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on the vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble."[ ] marshall thus reaches the conclusion that congress may "perform the high duties assigned to it, in the manner most beneficial to the people." then comes that celebrated passage--one of the most famous ever delivered by a jurist: "let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."[ ] further on the chief justice restates this fundamental principle, without which the constitution would be a lifeless thing: "where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. the court disclaims all pretensions to such a power."[ ] the fact that there were state banks with whose business the national bank might interfere, had nothing to do with the question of the power of congress to establish the latter. the national government does not depend on state governments "for the execution of the great powers assigned to it. its means are adequate to its ends." it can choose a national bank rather than state banks as an agency for the transaction of its business; "and congress alone can make the election." it is, then, "the unanimous and decided opinion" of the court that the bank act is constitutional. so is the establishment of the branches of the parent bank. can states tax these branches, as maryland has tried to do? of course the power of taxation "is retained by the states," and "is not abridged by the grant of a similar power to the government of the union." these are "truths which have never been denied." with sublime audacity marshall then declares that "such is the paramount character of the constitution that its capacity to withdraw any subject from the action of even this power, is admitted."[ ] this assertion fairly overwhelms the student, since the states then attempting to tax out of existence the branches of the national bank did not admit, but emphatically denied, that the national government could withdraw from state taxation any taxable subject whatever, except that which the constitution itself specifically withdraws. "the states," argues marshall, "are expressly forbidden" to tax imports and exports. this being so, "the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this [taxing] power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the union. a law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were used." in this fashion marshall holds, in effect, that congress can restrain the states from taxing certain subjects not mentioned in the constitution as fully as though those subjects were expressly named. it is on this ground that the national bank claims exemption "from the power of a state to tax its operations." marshall concedes that "there is no express provision [in the constitution] for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it without rendering it into shreds."[ ] this was, indeed, going far--the powers of congress placed on "a principle" rather than on the language of the constitution. when we consider the period in which this opinion was given to the country, we can understand--though only vaguely at this distance of time--the daring of john marshall. yet he realizes the extreme radicalism of the theory of constitutional interpretation he is thus advancing, and explains it with scrupulous care. "this great principle is that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them. from this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which ... the cause is supposed to depend."[ ] that "cause" was not so much the one on the docket of the supreme court, entitled m'culloch _vs._ maryland, as it was that standing on the docket of fate entitled nationalism _vs._ localism. and, although marshall did not actually address them, everybody knew that he was speaking to the disunionists who were increasing in numbers and boldness. everybody knew, also, that the chief justice was, in particular, replying to the challenge of the virginia republican organization as given through the court of appeals of that state.[ ] the corollaries which marshall deduced from the principle of national supremacy were: " st. that a power to create implies a power to preserve. d. that a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. d. that where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme."[ ] it is "too obvious to be denied," continues marshall that, if permitted to exercise the power, the states can tax the bank "so as to destroy it." the power of taxation is admittedly "sovereign"; but the taxing power of the states "is subordinate to, and may be controlled by the constitution of the united states. how far it has been controlled by that instrument must be a question of construction. in making this construction, no principle not declared can be admissible, which would defeat the legitimate operations of a supreme government. it is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence. this effect need not be stated in terms. it is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. we must, therefore, keep it [the principle of national supremacy] in view while construing the constitution."[ ] unlimited as is the power of a state to tax objects within its jurisdiction, that state power does not "extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the united states ... powers ... given ... to a government whose laws ... are declared to be supreme.... the right never existed [in the states] ... to tax the means employed by the government of the union, for the execution of its powers."[ ] regardless of this fact, however, can states tax instrumentalities of the national government? it cannot be denied, says marshall, that "the power to tax involves the power to destroy; that the power to destroy may defeat ... the power to create; that there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control."[ ] here marshall permits himself the use of sarcasm, which he dearly loved but seldom employed. the state rights advocates insisted that the states can be trusted not to abuse their powers--confidence must be reposed in state legislatures and officials; they would not destroy needlessly, recklessly. "all inconsistencies are to be reconciled by the magic of the word confidence," says marshall. "but," he continues, "is this a case of 'confidence'? would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? we know they would not." by the same token the people of one state would never consent that the government of another state should control the national government "to which they have confided the most important and most valuable interests. in the legislature of the union alone, are all represented. the legislature of the union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. this, then, is not a case of confidence."[ ] the state rights theory is "capable of arresting all the measures of the government, and of prostrating it at the foot of the states." instead of the national government being "supreme," as the constitution declares it to be, "supremacy" would be transferred "in fact, to the states"; for, "if the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. they may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. this was not intended by the american people. they did not design to make their government dependent on the states." the whole question is, avows marshall, "in truth, a question of supremacy." if the anti-national principle that the states can tax the instrumentalities of the national government is to be sustained, then the declaration in the constitution that it and laws made under it "shall be the supreme law of the land, is empty and unmeaning declamation."[ ] maryland had argued that, since the taxing power is, at least, "concurrent" in the state and national governments, the states can tax a national bank as fully as the nation can tax state banks. but, remarks marshall, "the two cases are not on the same reason." the whole american people and all the states are represented in congress; when they tax state banks, "they tax their constituents; and these taxes must be uniform. but, when a state taxes the operations of the government of the united states, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. it acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. "the difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole--between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.... the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government."[ ] for these reasons, therefore, the judgment of the supreme court was that the maryland law taxing the baltimore branch of the national bank was "contrary to the constitution ... and void"; that the judgment of the baltimore county court against the branch bank "be reversed and annulled," and that the judgment of the maryland court of appeals affirming the judgment of the county court also "be reversed and annulled."[ ] in effect john marshall thus rewrote the fundamental law of the nation; or, perhaps it may be more accurate to say that he made a written instrument a living thing, capable of growth, capable of keeping pace with the advancement of the american people and ministering to their changing necessities. this greatest of marshall's treatises on government may well be entitled the "vitality of the constitution." story records that marshall's opinion aroused great political excitement;[ ] and no wonder, since the chief justice announced, in principle, that congress had sufficient power to "emancipate every slave in the united states" as john randolph declared five years later.[ ] roane, ritchie, taylor, and the republican organization of virginia had anticipated that the chief justice would render a nationalist opinion; but they were not prepared for the bold and crushing blows which he rained upon their fanatically cherished theory of localism. as soon as they recovered from their surprise and dismay, they opened fire from their heaviest batteries upon marshall and the national judiciary. the way was prepared for them by a preliminary bombardment in the _weekly register_ of hezekiah niles. this periodical had now become the most widely read and influential publication in the country; it had subscribers from portland to new orleans, from savannah to fort dearborn. niles had won the confidence of his far-flung constituency by his honesty, courage, and ability. he was the prototype of horace greeley, and the _register_ had much the same hold on its readers that the _tribune_ came to have thirty years later. in the first issue of the _register_, after marshall's opinion was delivered, niles began an attack upon it that was to spread all over the land. "a deadly blow has been struck at the _sovereignty of the states_, and from a quarter so far removed from the people as to be hardly accessible to public opinion," he wrote. "the welfare of the union has received a more dangerous wound than fifty _hartford_ conventions ... could inflict." parts of marshall's opinion are "_incomprehensible_. but perhaps, as some people tell us of what _they_ call the _mysteries_ of religion, the _common people_ are not to understand them, such things being reserved only for the _priests_!!"[ ] the opinion of the chief justice was published in full in niles's _register_ two weeks after he delivered it,[ ] and was thus given wider publicity than any judicial utterance previously rendered in america. indeed, no pronouncement of any court, except, perhaps, that in gibbons _vs._ ogden,[ ] was read so generally as marshall's opinion in m'culloch _vs._ maryland, until the publication of the dred scott decision thirty-eight years later. niles continues his attack in the number of the _register_ containing the bank opinion: it is "more important than any ever before pronounced by that exalted tribunal--a tribunal so far removed from the people, that some seem to regard it with a species of that awful reverence in which the inhabitants of asia look up to their princes."[ ] this exasperated sentence shows the change that marshall, during his eighteen years on the bench, had wrought in the standing and repute of the supreme court.[ ] the doctrines of the chief justice amount to this, said niles--"congress may grant _monopolies_" at will, "if the _price_ is paid for them, or without any pecuniary consideration at all." as for the chief justice personally, he "has not added ... to his stock of reputation by writing it--_it is excessively labored_."[ ] papers throughout the country copied niles's bitter criticisms,[ ] and public opinion rapidly crystallized against marshall's nationalist doctrine. every where the principle asserted by the chief justice became a political issue; or, rather, his declaration, that that principle was law, made sharper the controversy that had divided the people since the framing of the constitution. in number after number of his _register_ niles, pours his wrath on marshall's matchless interpretation. it is "far more dangerous to the union and happiness of the people of the united states than ... _foreign invasion_.[ ] ... certain nabobs in boston, new york, philadelphia and baltimore, ... to secure the passage of an act of _incorporation_, ... fairly purchase the souls of some members of the national legislature with _money_, as happened in georgia, or secure the votes of others by making them _stockholders_, as occurred in new york, and the act is passed.[ ]... we call upon the people, the honest people, who hate _monopolies_ and _privileged orders_, to arise in their strength and purge our political temple of the _money-changers_ and those who sell _doves_--causing a reversion to the original purity of our system of government, that the faithful centinel may again say, 'all's well!'"[ ] extravagant and demagogical as this language of niles's now seems, he was sincere and earnest in the use of it. copious quotations from the _register_ have been here made because it had the strongest influence on american public opinion of any publication of its time. niles's _register_ was, emphatically, the mentor of the country editor.[ ] at last the hour had come when the virginia republican triumvirate could strike with an effect impossible of achievement in when the supreme court rebuked and overpowered the state appellate tribunal in martin _vs._ hunter's lessee.[ ] nobody outside of virginia then paid any attention to that decision, so obsessed was the country by speculation and seeming prosperity. but in the collapse had come; poverty and discontent were universal; rebellion against nationalism was under way; and the vast majority blamed the bank of the united states for all their woes. yet marshall had upheld "the monster." the virginia junto's opportunity had arrived. no sooner had marshall returned to richmond than he got wind of the coming assault upon him. on march , , the _enquirer_ published his opinion in full. the next day the chief justice wrote story: "our opinion in the bank case has aroused the sleeping spirit of virginia, if indeed it ever sleeps. it will, i understand, be attacked in the papers with some asperity, and as those who favor it never write for the publick it will remain undefended & of course be considered as _damnably heretical_."[ ] he had been correctly informed. the attack came quickly. on march , spencer roane opened fire in the paper of his cousin thomas ritchie, the _enquirer_,[ ] under the _nom de guerre_ of "amphictyon." his first article is able, calm, and, considering his intense feelings, fair and moderate. roane even extols his enemy: "that this opinion is very able every one must admit. this was to have been expected, proceeding as it does from a man of the most profound legal attainments, and upon a subject which has employed his thoughts, his tongue, and his pen, as a politician, and an historian for more than thirty years. the subject, too, is one which has, perhaps more than any other, heretofore drawn a broad line of distinction between the two great parties in this country, on which line no one has taken a more distinguished and decided rank than the judge who has thus expounded the supreme law of the land. it is not in my power to carry on a contest upon such a subject with a man of his gigantic powers."[ ] niles had spoken to "the plain people"; roane is now addressing the lawyers and judges of the country. his essay is almost wholly a legal argument. it is based on the virginia resolutions of and gives the familiar state rights arguments, applying them to marshall's opinion.[ ] in his second article roane grows vehement, even fiery, and finally exclaims that virginia "never will _employ force to support her doctrines till other measures have entirely failed_."[ ] his attacks had great and immediate response. no sooner had copies of the _enquirer_ containing the first letters of amphictyon reached kentucky than the republicans of that state declared war on marshall. on april , the _enquirer_ printed the first western response to roane's call to arms. marshall's principles, said the kentucky correspondent, "must raise an alarm throughout our widely extended empire.... the people must rouse from the lap of delilah and prepare to meet the philistines.... no mind can compass the extent of the encroachments upon state and individual rights which may take place under the principles of this decision."[ ] [illustration: spencer roane] even marshall, a political and judicial veteran in his sixty-fifth year, was perturbed. "the opinion in the bank case continues to be denounced by the democracy in virginia," he writes story, after the second of roane's articles appeared. "an effort is certainly making to induce the legislature which will meet in december to take up the subject & to pass resolutions not very unlike those which were called forth by the alien & sedition laws in . whether the effort will be successful or not may perhaps depend in some measure on the sentiments of our sister states. to excite this ferment the opinion has been grossly misrepresented; and where its argument has been truly stated it has been met by principles one would think too palpably absurd for intelligent men. "but," he gloomily continues, "prejudice will swallow anything. if the principles which have been advanced on this occasion were to prevail the constitution would be converted into the old confederation."[ ] as yet roane had struck but lightly. he now renewed the republican offensive with greater spirit. during june, , the _enquirer_ published four articles signed "hampden," from roane's pen. ritchie introduced the "hampden" essays in an editorial in which he urged the careful reading of the exposure "of the alarming errors of the supreme court.... whenever state rights are threatened or invaded, virginia will not be the last to sound the tocsin."[ ] are the people prepared "to give _carte blanche_ to our federal rulers"? asked hampden. amendment of the constitution by judicial interpretation is taking the place of amendment by the people. infamous as the methods of national judges had been during the administration of adams, "the most abandoned of our rulers," marshall and his associates have done worse. they have given "a _general_ letter of attorney to the future legislators of the union.... that man must be a deplorable idiot who does not see that there is no ... difference" between an "_unlimited_ grant of power and a grant limited in its terms, but accompanied with _unlimited_ means of carrying it into execution.... the crisis is one which portends destruction to the liberties of the american people." hampden scoldingly adds: "if mason or henry could lift their patriot heads from the grave, ... they would almost exclaim, with jugurtha, 'venal people! you will soon perish if you can find a purchaser.'"[ ] for three more numbers hampden pressed the republican assault on marshall's opinion. the constitution is a "_compact_, to which the _states_ are the parties." marshall's argument in the virginia convention of is quoted,[ ] and his use of certain terms in his "life of washington" is cited.[ ] if the powers of the national government ought to be enlarged, "let this be the act of the _people_, and not that of subordinate agents."[ ] the opinion of the chief justice repeatedly declares "that the general government, though limited in its powers, is supreme." hampden avows that he does "not understand this jargon.... the _people_ only are supreme.[ ]... our general government ... is as much a ... 'league' as was the former confederation." therefore, the virginia court of appeals, in hunter _vs._ fairfax, declared an act of congress "unconstitutional, although it had been sanctioned by the opinion of the supreme court of the united states." pennsylvania, too, had maintained its "sovereignty."[ ] hampden has only scorn for "_some_ of the judges" who concurred in the opinion of the chief justice. they "had before been accounted republicans.... few men come out from high places, as pure as they went in."[ ] if marshall's doctrine stands, "the triumph over our liberties will be ... easy and complete." what, then, could "arrest this calamity"? nothing but an "appeal" to the people. let this majestic and irresistible power be invoked.[ ] that he had no faith in his own theory is proved by the rather dismal fact that, more than two months before marshall "violated the constitution" and "endangered the liberties" of the people by his bank decision, roane actually arranged for the purchase, as an investment for his son, of $ worth of the shares of the bank of the united states, and actually made the investment.[ ] this transaction, consummated even before the argument in m'culloch _vs._ maryland, shows that roane, the able lawyer, was sure that marshall would and ought to sustain the bank in its controversy with the states that were trying to destroy it. moreover, dr. john brockenbrough, president of the bank of virginia, actually advised the investment.[ ] it is of moment, too, to note at this point the course taken by marshall, who had long owned stock in the bank of the united states. as soon as he learned that the suit had been brought which, of a certainty, must come before him, the chief justice disposed of his holdings.[ ] so disturbed was marshall by roane's attacks that he did a thoroughly uncharacteristic thing. by way of reply to roane he wrote, under the _nom de guerre_ of "a friend of the union," an elaborate defense of his opinion and, through bushrod washington, procured the publication of it in the _union_ of philadelphia, the successor of the _gazette of the united states_, and the strongest federalist newspaper then surviving. on june , , the chief justice writes washington: "i expected three numbers would have concluded my answer to hampden but i must write two others which will follow in a few days. if the publication has not commenced i could rather wish the signature to be changed to 'a constitutionalist.' a friend of the constitution is so much like a friend of the union that it may lead to some suspicion of identity.... i hope the publication has commenced unless the editor should be unwilling to devote so much of his paper to this discussion. the letters of amphyction & of hampden have made no great impression in richmond but they were designed for the country [virginia] & have had considerable influence there. i wish the refutation to be in the hands of some respectable members of the legislature as it may prevent some act of the assembly [torn--probably "both"] silly & wicked. if the publication be made i should [like] to have two or three sets of the papers to hand if necessary. i will settle with you for the printer."[ ] the reading of marshall's newspaper effort is exhausting; a summary of the least uninteresting passages will give an idea of the whole paper. the articles published in the _enquirer_ were intended, so he wrote, to inflict "deep wounds on the constitution," are full of "mischievous errours," and are merely new expressions of the old virginia spirit of hostility to the nation. the case of m'culloch _vs._ maryland serves only as an excuse "for once more agitating the publick mind, and reviving those unfounded jealousies by whose blind aid ambition climbs the ladder of power."[ ] after a long introduction, marshall enters upon his defense which is as wordy as his answer to the virginia resolutions. he is sensitive over the charge, by now popularly made, that he controls the supreme court, and cites the case of the nereid to prove that the justices give dissenting opinions whenever they choose. "the course of every tribunal must necessarily be, that the opinion which is to be delivered as the opinion of the court, is previously submitted to the consideration of all the judges; and, if any part of the reasoning be disapproved, it must be so modified as to receive the approbation of all, before it can be delivered as the opinion of all." roane's personal charges amount to this: "the chief justice ... is a federalist; who was a politician of some note before he was judge; and who with his tongue and his pen supported the opinions he avowed." with the politician's skill marshall uses the fact that the majority of the court, which gave the nationalist judgment in m'culloch _vs._ maryland, were republicans--"four of whom [story, johnson, duval, and livingston] have no political sin upon their heads;--who in addition to being eminent lawyers, have the still greater advantage of being sound republicans; of having been selected certainly not for their federalism, by mr jefferson, and mr madison, for the high stations they so properly fill." for eight tedious columns of diffuse repetition marshall goes on in defense of his opinion.[ ] when the biographer searches the daily life of a man so surpassingly great and good as marshall, he hopes in no ungenerous spirit to find some human frailty that identifies his hero with mankind. the greeks did not fail to connect their deities with humanity. the leading men of american history have been ill-treated in this respect--for a century they have been held up to our vision as superhuman creatures to admire whom was a duty, to criticize whom was a blasphemy, and to love or understand whom was an impossibility. all but marshall have been rescued from this frigid isolation. any discovery of human frailty in the great chief justice is, therefore, most welcome. some small and gracious defects in marshall's character have appeared in the course of these volumes; and this additional evidence of his susceptibility to ordinary emotion is very pleasing. with all his stern repression of that element of his character, we find that he was sensitive in the extreme; in reality, thirsting for approval, hurt by criticism. in spite of this desire for applause and horror of rebuke, however, he did his duty, knowing beforehand that his finest services would surely bring upon him the denunciation and abuse he so disliked. by such peevishness as his anonymous reply in the _union_ to roane's irritating attacks, we are able to get some measure of the true proportions of this august yet very human character. when marshall saw, in print, this controversial product of his pen, he was disappointed and depressed. the editor had, he avowed, so confused the manuscript that it was scarcely intelligible. at any rate, marshall did not want his defense reproduced in new england. story had heard of the article in the _union_, and wrote marshall that he wished to secure the publication of it. the chief justice replied: "the piece to which you allude was not published in virginia. our patriotic papers admit no such political heresies. it contained, i think, a complete demonstration of the fallacies & errors contained in those attacks on the opinion of the court which have most credit here & are supposed to proceed from a high source,[ ] but was so mangled in the publication that those only who had bestowed close attention to the subject could understand it. "there were two numbers[ ] & the editor of the union in philadelphia, the paper in which it was published, had mixed the different numbers together so as in several instances to place the reasoning intended to demonstrate one proposition under another. the points & the arguments were so separated from each other, & so strangely mixed as to constitute a labyrinth to which those only who understood the whole subject perfectly could find a clue."[ ] it appears that story insisted on having at least marshall's rejoinder to roane's first article reproduced in the boston press. again the chief justice evades the request of his associate and confidant: "i do not think a republication of the piece you mention in the boston papers to be desired, as the antifederalism of virginia will not, i trust, find its way to new england. i should also be sorry to see it in mr. wheaton's[ ] appendix because that circumstance might lead to suspicions regarding the author & because i should regret to see it republished in its present deranged form with the two centres transposed."[ ] for a brief space, then, the combatants rested on their arms, but each was only gathering strength for the inevitable renewal of the engagement which was to be sterner than any previous phases of the contest. soon after the convening of the first session of the virginia legislature held subsequent to the decision of m'culloch _vs._ maryland, roane addressed the lawmakers through the _enquirer_, now signing himself "publicola." he pointed out the "absolute disqualification of the supreme court of the u. s. to decide with impartiality upon controversies between the general and state governments";[ ] and, to "ensure _unbiassed_" decisions, insisted upon a constitutional amendment to establish a tribunal "(as occasion may require)" appointed partly by the states and partly by the national government, "with _appellate_ jurisdiction from the present supreme court."[ ] promptly a resolution against marshall's opinion was offered in the house of delegates.[ ] this noteworthy paper was presented by andrew stevenson, a member of the "committee for courts of justice."[ ] the resolutions declared that the doctrines of m'culloch _vs._ maryland would "undermine the pillars of the constitution itself." the provision giving to the judicial power "_all cases_ arising _under the constitution_" did not "extend to questions which would amount to a subversion of the constitution itself, by the usurpation of one contracting party on another." but marshall's opinion was calculated to "change the whole character of the government."[ ] sentences from the opinion of the chief justice are quoted, including the famous one: "let the end be legitimate, ... and all the means which are appropriate, ... which are not prohibited, ... are constitutional." did not such expressions import that congress could "conform the constitution to their own designs" by the exercise of "unlimited and uncontrouled" power? the ratifying resolution of the constitution by the virginia convention of is quoted.[ ] virginia's voice had been heard to the same effect in the immortal resolutions of . her views had been endorsed by the country in the presidential election of --that "great revolution of principle." her legislature, therefore, "enter their most solemn protest, against the decision of the supreme court, and of the principles contained in it." in this fashion the general assembly insisted on an amendment to the national constitution "creating a _tribunal_" authorized to decide questions relative to the "powers of the general and state governments, under the compact." the virginia senators are, therefore, instructed to do their best to secure such an amendment and "to resist on every occasion" attempted legislation by congress in conflict with the views set forth in this resolution or those of "which have been re-considered, and are fully and entirely approved of by this assembly." the governor is directed to transmit the resolutions to the other states.[ ] at this point slavery and secession enter upon the scene. almost simultaneously with the introduction of the resolutions denouncing marshall and the supreme court for the judgment and opinion in m'culloch _vs._ maryland, other resolutions were offered by a member of the house named baldwin denouncing the imposition of restrictions on missouri (the prohibition of slavery) as a condition of admitting that territory to the union. such action by congress would "excite feelings eminently hostile to the fraternal affection and prudent forbearance which ought ever to pervade the confederated union."[ ] two days later, december , the same delegate introduced resolutions to the effect that only the maintenance of the state rights principle could "preserve the confederated union," since "no government can long exist which lies at the mercy of another"; and, inferentially, that marshall's opinion in m'culloch _vs._ maryland had violated that principle.[ ] a yet sterner declaration on the missouri question quickly followed, declaring that congress had no power to prohibit slavery in that state, and that "virginia will support the good people of missouri in their just rights ... and will co-operate with them in resisting with manly fortitude any attempt which congress may make to impose restraints or restrictions as the price of their admission" to the union.[ ] the next day these resolutions, strengthened by amendment, were adopted.[ ] on february , , the resolutions condemning the nationalist doctrine expounded by the chief justice in the bank case also came to a vote and passed, ayes to nays.[ ] they had been amended and reamended,[ ] but, as adopted, they were in substance the same as those originally offered by stevenson. through both these sets of resolutions--that on the missouri question and that on the bank decision--ran the intimation of forcible resistance to national authority. introduced at practically the same time, drawn and advocated by the same men, passed by votes of the same members, these important declarations of the virginia legislature were meant to be and must be considered as a single expression of the views of virginia upon national policy. in this wise did the legislature of his own state repudiate and defy that opinion of john marshall which has done more for the american nation than any single utterance of any other one man, excepting only the farewell address of washington. in such manner, too, was the slavery question brought face to face with marshall's lasting exposition of the national constitution. for, it should be repeated, in announcing the principles by virtue of which congress could establish the bank of the united states, the chief justice had also asserted, by necessary inference, the power of the national legislature to exact the exclusion of slavery as a condition upon which a state could be admitted to the union. at least this was the interpretation of virginia and the south. the slavery question did not, to be sure, closely touch northern states, but their local interests did. thus it was that ohio aligned herself with virginia in opposition to marshall's nationalist statesmanship, and in support of the jeffersonian doctrine of localism. in such fashion did the ohio bank question become so intermingled with the conflict over slavery and secession that, in the consideration of marshall's opinions at this time, these controversies cannot be separated. the facts of the ohio bank case must, therefore, be given at this point.[ ] since the establishment at cincinnati, early in , of a branch of the bank of the united states, ohio had threatened to drive it from the state by a prohibitive tax. not long before the argument of m'culloch _vs._ maryland in the supreme court, the ohio legislature laid an annual tax of $ , on each of the two branches which, by that time, had been established in that state.[ ] on february , , only four days previous to the hearing of the maryland case at washington, and less than a month before marshall delivered his opinion, the ohio lawmakers passed an act directing the state auditor, ralph osborn, to charge this tax of $ , against each of the branches, and to issue a warrant for the immediate collection of $ , , the total amount of the first year's tax. this law is almost without parallel in severity, peremptoriness, and defiant contempt for national authority. if the branches refused to pay the tax, the ohio law enjoined the person serving the state auditor's warrant to seize all money or property belonging to the bank, found on its premises or elsewhere. the agent of the auditor was directed to open the vaults, search the offices, and take everything of value.[ ] immediately the branch at chillicothe obtained from the united states district court, then in session at that place, an injunction forbidding osborn from collecting the tax;[ ] but the bank's counsel forgot to have a writ issued to stay the proceedings. therefore, no order of the court was served; instead a copy of the bill praying that the auditor be restrained, together with a subpoena to answer, was sent to osborn. these papers were not, of course, an injunction, but merely notice that one had been applied for. thinking to collect the tax before the injunction could be issued, osborn forthwith issued his auditor's warrant to one john l. harper to collect the tax immediately. assisted by a man named thomas orr, harper entered the chillicothe branch of the bank of the united states, opened the vaults, seized all the money to be found, and deposited it for the night in the local state bank. next morning harper and orr loaded the specie, bank notes, and other securities in a wagon and started for columbus.[ ] the branch bank tardily obtained an order from the united states court restraining osborn, the state auditor, and harper, the state agent, from delivering the money to the state treasurer and from making any report to the legislature of the collection of the tax. this writ was served on harper as he and orr were on the road to the state capital with the money. harper simply ignored the writ, drove on to columbus, and handed over to the state treasurer the funds which he had seized at chillicothe. harper and orr were promptly arrested and imprisoned in the jail at chillicothe.[ ] because of technical defects in serving the warrant for their arrest and in the return of the marshal, the prisoners were set free.[ ] an order was secured from the united states court directing osborn and harper to show cause why an attachment should not be issued against them for having disobeyed the court's injunction not to deliver the bank's money to the state treasurer. after extended argument, the court issued the attachment, which, however, was not made returnable until the january term, . meanwhile the virginia legislature passed its resolutions denouncing marshall's opinion in m'culloch _vs._ maryland, and throughout the country the warfare upon the supreme court began. the legislature of ohio acted with a celerity and boldness that made the procedure of the virginia legislature seem hesitant and timid. a joint committee was speedily appointed and as promptly made its report. this report and the resolutions recommended by it were adopted without delay and transmitted to the senate of the united states.[ ] the ohio declaration is drawn with notable ability. a state cannot be sued--the true meaning of the constitution forbids, and the eleventh amendment specifically prohibits, such procedure. yet the action against osborn, state auditor, and samuel sullivan, state treasurer, is, "to every substantial purpose, a process against the state." the decision of the national supreme court that the states have no power to tax branches of the bank of the united states does not bind ohio or render her tax law "a dead letter."[ ] the ohio legislature challenges the _bona fides_ of m'culloch _vs._ maryland: "if, by the management of a party, and through the inadvertence or connivance of a state, a case be made, presenting to the supreme court of the united states for decision important ... questions of state power and state authority, upon no just principle ought the states to be concluded by any decision had upon such a case.... such is the true character of the case passed upon the world by the title of mcculloch _vs._ maryland," which, "when looked into, is found to be ... throughout, an agreed case, made expressly for the purpose of obtaining the opinion of the supreme court of the united states.... this agreed case was manufactured in the summer of the year " and rushed through two maryland courts, "so as to be got upon the docket of the supreme court of the united states for adjudication at their february term, .... it is truly an alarming circumstance if it be in the power of an aspiring corporation and an unknown and obscure individual thus to elicit opinions compromitting the vital interests of the states that compose the american union." luckily for ohio and all the states, this report goes on to say, some of marshall's opinions have been "totally impotent and unavailing," as, for instance, in the case of marbury _vs._ madison. marbury did not get his commission; "the person appointed in his place continued to act; his acts were admitted to be valid; and president jefferson retained his standing in the estimation of the american people." it was the same in the case of fletcher _vs._ peck. marshall held that "the yazoo purchasers ... were entitled to their lands. but the decision availed them nothing, unless as a make-weight in effecting a compromise." since, in neither of these cases, had the national government paid the slightest attention to the decision of the supreme court, how could ohio "be condemned because she did not abandon her solemn legislative acts as a dead letter upon the promulgation of an opinion of that tribunal"?[ ] the ohio legislature then proceeds to analyze marshall's opinion in m'culloch _vs._ maryland. all the arguments made against the principle of implied powers since hamilton first announced that principle,[ ] and all the reasons advanced against the doctrine that the national government is supreme, in the sense employed by marshall, are restated with clearness and power. however, since the object of the tax was to drive the branches of the bank out of ohio, the legislature suggests a compromise. if the national institution will cease business within the state and "give assurance" that the branches be withdrawn, the state will refund the tax money it has seized.[ ] instantly turning from conciliation to defiance, "because the reputation of the state has been assailed," the legislature challenges the national government to make good marshall's assertion that the power which created the bank "must have the power to preserve it." ohio should pass laws "forbidding the keepers of our jails from receiving into their custody any person committed at the suit of the bank of the united states," and prohibiting ohio judges, recorders, notaries public, from recognizing that institution in any way.[ ] congress will then have to provide a criminal code, a system of conveyances, and other extensive measures. ohio and the country will then learn whether the power that created the bank can preserve it. the ohio memorial concludes with a denial that the "political rights" and "sovereign powers" of a state can be settled by the supreme court of the nation "in cases contrived between individuals, and where they [the states] are, no one of them, parties direct." the resolutions further declare that the opinion of the other states should be secured.[ ] this alarming manifesto was presented to the national senate on february , , just six weeks before marshall delivered the opinion of the supreme court in cohens _vs._ virginia.[ ] pennsylvania had already taken stronger measures; had anticipated even virginia. within seven weeks from the delivery of marshall's opinion in m'culloch _vs._ maryland, the legislature of pennsylvania proposed an amendment to the national constitution prohibiting congress from authorizing "any bank or other monied institution" outside of the district of columbia.[ ] the action of ohio was an endorsement of that of virginia and pennsylvania. indiana had already swung into line.[ ] so had illinois and tennessee.[ ] for some reason, kentucky, soon to become one of the most belligerent and persevering of all the states in her resistance to the "encroachments" of nationalism as expounded by the supreme court, withheld her hand for the moment. most unaccountably, south carolina actually upheld marshall's opinion,[ ] which that state, within a decade, was to repudiate, denounce, and defy in terms of armed resistance.[ ] new york and massachusetts,[ ] consulting their immediate interests, were very stern against the localism of ohio, virginia, and pennsylvania.[ ] georgia expressed her sympathy with the localist movement, but, for the time being, was complaisant[ ]--a fact the more astonishing that she had already proved, and was soon to prove again, that nationalism is a fantasy unless it is backed by force.[ ] notwithstanding the eccentric attitude of various members of the union, it was only too plain that a powerful group of states were acting in concert and that others ardently sympathized with them. at this point, in different fashion, virginia spoke again, this time by the voice of that great protagonist of localism, john taylor of caroline, the originator of the kentucky resolutions,[ ] and the most brilliant mind in the republican organization of the old dominion. immediately after marshall's opinion in m'culloch _vs._ maryland, and while the ohio conflict was in progress, he wrote a book in denunciation and refutation of marshall's nationalist principles. the editorial by thomas ritchie, commending taylor's book, declares that "the crisis has come"; the missouri question, the tariff question, the bank question, have brought the country to the point where a decision must be made as to whether the national government shall be permitted to go on with its usurpations. "if there is any book capable of arousing the people, it is the one before us." taylor gave to his volume the title "construction construed, and constitutions vindicated." the phrases "exclusive interests" and "exclusive privileges" abound throughout the volume. sixteen chapters compose this classic of state rights philosophy. five of them are devoted to marshall's opinion in m'culloch _vs._ maryland; the others to theories of government, the state of the country, the protective tariff, and the missouri question. the principles of the revolution, avows taylor, "are the keys of construction" and "the locks of liberty.[ ]... no form of government can foster a fanaticism for wealth, without being corrupted." yet marshall's ideas establish "the despotick principle of a gratuitous distribution of wealth and poverty by law."[ ] if the theory that congress can create corporations should prevail, "legislatures will become colleges for teaching the science of getting money by monopolies or favours."[ ] to pretend faith in christianity, and yet foster monopoly, is "like placing christ on the car of juggernaut."[ ] the framers of the national constitution tried to prevent the evils of monopoly and avarice by "restricting the powers given to congress" and safeguarding those of the states; "in fact, by securing the freedom of property."[ ] marshall is enamored of the word "sovereignty," an "equivocal and illimitable word," not found in "the declaration of independence, nor the federal constitution, nor the constitution of any single state"; all of them repudiated it "as a traitor of civil rights."[ ] well that they had so rejected this term of despotism! no wonder jugurtha exclaimed, "rome was for sale," when "the government exercised an absolute power over the national property." of course it would "find purchasers."[ ] to this condition marshall's theories will bring america. [illustration: john taylor] whence this effort to endow the national government with powers comparable to those of a monarchy? plainly it is a reaction--"many wise and good men, ... alarmed by the illusions of rousseau and godwin, and the atrocities of the french revolution, honestly believe that these [democratic] principles have teeth and claws, which it is expedient to draw and pare, however constitutional they may be; without considering that such an operation will subject the generous lion to the wily fox; ... subject liberty and property to tyranny and fraud."[ ] in chapter after chapter of clever arguments, illumined by the sparkle of such false gems as these quotations, taylor prepares the public mind for his direct attack on john marshall. he is at a sad disadvantage; he, "an unknown writer," can offer only "an artless course of reasoning" against the "acute argument" of marshall's opinion, concurred in by the members of the supreme court whose "talents," "integrity," "uprightness," and "erudition" are universally admitted.[ ] the essence of marshall's doctrine is that, although the powers of the national government are limited, the means by which they may be executed are unlimited. but, "as ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people."[ ] marshall had said that "'the creation of a corporation appertains to sovereignty.'" this is the language of tyranny. the corporate idea crept into british law "wherein it hides the heart of a prostitute under the habiliments of a virgin."[ ] but since, in america, only the people are "sovereign," and, to use marshall's own words, the power to create corporations "appertains to sovereignty," it follows that neither state nor national governments can create corporations.[ ] the chief justice is a master of the "science of verbality" by which the constitution may be rendered "as unintelligible, as a single word would be made by a syllabick dislocation, or a jumble of its letters; and turn it into a reservoir of every meaning for which its expounder may have occasion." where does marshall's "artifice of verbalizing" lead?[ ] to an "artificially reared, a monied interest ... which is gradually obtaining an influence over the federal government," and "craftily works upon the passions of the states it has been able to delude" [on the slavery question], "to coerce the defrauded and discontented states into submission." for this reason talk of civil war abounds. "for what are the states talking about disunion, and for what are they going to war among themselves? to create or establish a monied sect, composed of privileged combinations, as an aristocratical oppressor of them all."[ ] marshall's doctrine that congress may bestow "exclusive privileges" is at the bottom of the missouri controversy. "had the motive ... never existed, the discussion itself would never have existed; but if the same cause continues, more fatal controversies may be expected."[ ] finally taylor hurls at the nation the challenge of the south, which the representatives of that section, from the floor of congress, quickly repeated in threatenings of civil war.[ ] "there remains a right, anterior to every political power whatsoever, ... the natural right of self-defence.... it is allowed, on all hands, that danger to the slave-holding states lurks in their existing situation, ... and it must be admitted that the right of self-defence applies to that situation.... i leave to the reader the application of these observations."[ ] immediately upon its publication, ritchie sent a copy of taylor's book to jefferson, who answered that he knew "before reading it" that it would prove "orthodox." the attack upon the national courts could not be pressed too energetically: "the judiciary of the united states is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.... an opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy and timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning."[ ] footnotes: [ ] these penalties were forfeits of $ for every offense--a sum that would have aggregated hundreds of thousands, perhaps millions of dollars, in the case of the baltimore branch, which did an enormous business. the maryland law also provided that "every person having any agency in circulating" any such unauthorized note of the bank should be fined one hundred dollars. (act of feb. , , _laws of maryland_, .) [ ] story to white, march , , story, i, . [ ] webster always dressed with extreme care when he expected to make a notable speech or argument. for a description of his appearance on such an occasion see sargent: _public men and events_, i, . [ ] wheaton, . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] wheaton, _et seq._ [ ] _ib._ _et seq._ [ ] _ib._ - . [ ] _ib._ . [ ] tyler: _memoir of roger brooke taney_, . [ ] the student should carefully examine pinkney's argument. although the abstract of it given in wheaton's report is very long, a painstaking study of it will be helpful to a better understanding of the development of american constitutional law. ( wheaton, - .) [ ] story to white, march , , story, i, - . [ ] wheaton, . [ ] see _supra_, chap. v. [ ] webster to mason, feb. , , van tyne, - . [ ] webster to smith, feb. , , _ib._ - . [ ] from february to february and from march to march , . [ ] february , . see _annals_, th cong. d sess. . [ ] _ib._ . [ ] _annals_, th cong. d sess. - . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ - . [ ] "marshall's opinion in m'culloch _vs._ maryland, is perhaps the most celebrated judicial utterance in the annals of the english speaking world." (_great american lawyers_: lewis, ii, .) [ ] as the biographer of washington, marshall had carefully read both hamilton's and jefferson's cabinet opinions on the constitutionality of a national bank. compare hamilton's argument (vol. ii, - , of this work) with marshall's opinion in m'culloch _vs._ maryland. [ ] wheaton, . [ ] _ib._ (italics the author's.) [ ] wheaton, - . [ ] "in discussing this question, the counsel for the state of maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent states. the powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion. "it would be difficult to sustain this proposition. the convention which framed the constitution was indeed elected by the state legislatures. but the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. it was reported to the then existing congress of the united states, with a request that it might 'be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature, for their assent and ratification.' this mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. "they acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. it is true, they assembled in their several states--and where else should they have assembled? no political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the american people into one common mass. of consequence, when they act, they act in their states. but the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. from these conventions the constitution derives its whole authority." ( wheaton, - .) [ ] wheaton, - . [ ] _ib._ . [ ] the nationalist ideas of marshall and lincoln are identical; and their language is so similar that it seems not unlikely that lincoln paraphrased this noble passage of marshall and thus made it immortal. this probability is increased by the fact that lincoln was a profound student of marshall's constitutional opinions and committed a great many of them to memory. the famous sentence of lincoln's gettysburg address was, however, almost exactly given by webster in his reply to hayne: "it is ... the people's government; made for the people; made by the people; and answerable to the people." (_debates_, st cong. st sess. ; also curtis, i, - .) but both lincoln and webster merely stated in condensed and simpler form marshall's immortal utterance in m'culloch _vs._ maryland. (see also _infra_, chap. x.) [ ] wheaton, - . [ ] wheaton, - . (italics the author's.) [ ] _ib._, - . [ ] see vol. i, , of this work. [ ] wheaton, - . [ ] wheaton, - . [ ] _ib._ . [ ] "the congress shall have power ... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof." (constitution of the united states, article i, section .) [ ] wheaton, . [ ] _ib._ . [ ] see vol. ii, , of this work. [ ] vol. ii, - , of this work. [ ] wheaton, . [ ] wheaton, . [ ] _ib._ - . [ ] wheaton, - . [ ] wheaton, - . [ ] _ib._ . [ ] _ib._ . [ ] wheaton, - . [ ] wheaton, - . [ ] wheaton, . [ ] see _supra_, _et seq._ [ ] wheaton, . [ ] wheaton, . [ ] _ib._ - . [ ] wheaton, . [ ] _ib._ [ ] wheaton, - . [ ] wheaton, - . [ ] _ib._ . [ ] story to his mother, march , , story, i, - . [ ] see _infra_, ; also - ; - , - . [ ] niles, xvi, - . [ ] _ib._ - . [ ] see _infra_, chap. viii. [ ] niles, xvi, . [ ] see vol. iii, - , of this work. [ ] niles, xvi, . [ ] _ib._ . for instance, the _natchez press_, in announcing its intention to print marshall's whole opinion, says that, if his doctrine prevails, "the independence of the individual states ... is obliterated at one fell sweep." no country can remain free "that tolerates incorporated banks, in any guise." (_ib._ .) [ ] _ib._ . [ ] _ib._ . [ ] niles, xvi, . [ ] niles's attack on marshall's opinion in m'culloch _vs._ maryland ran through three numbers. (see _ib._ - ; - ; - .) [ ] see _supra_, - . [ ] marshall to story, march , , _proceedings, mass, hist. soc._ d series, xiv, . [ ] see _supra_, . [ ] enquirer, march , , as quoted in _branch hist. papers_, june, , - . [ ] _branch hist. papers_, june, , - . [ ] _enquirer_, april , , as quoted in _branch hist. papers_, june, , . (italics the author's.) [ ] _enquirer_, april , , as quoted in _ib._ . [ ] marshall to story, may , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] _enquirer_, june , , as quoted in _branch hist. papers_, june, , footnote to . [ ] _enquirer_, june , , as quoted in _branch hist. papers_, june, , - . [ ] _enquirer_, june , , as quoted in _ib._ ; also _enquirer_, june , , as quoted in _ib._ . [ ] _enquirer_, june , , as quoted in _ib._ . [ ] _ib._ ; also _enquirer_, june , , as quoted in _ib._ - . [ ] _ib._ . [ ] _enquirer_, june , , as quoted in _branch hist. papers_, june, , . [ ] _ib._ . [ ] _ib._ . madison endorsed roane's attacks on marshall. (see madison to roane, sept. , , _writings of james madison_: hunt, viii, - .) [ ] see roane to his son, jan. , , _branch hist. papers_, june, , ; and same to same, feb. , , _ib._ . eighteen days before marshall delivered his opinion roane again writes his son: "i have to-day deposited in the vaults of the virga. bank a certificate in your name for shares u. s. bank stock, as per memo., by mr. dandridge enclosed. the shares cost, as you will see, $ each." (roane to his son, feb. , , _ib._ .) [ ] roane to his son, note , p. . [ ] the entire transaction is set out in letters of benjamin watkins leigh to nicholas biddle, aug. , aug. , sept. , and sept. , ; and biddle to leigh, aug. and , sept. and sept. , . (biddle mss. in possession of professor r. c. mcgrane of the university of ohio, to whose courtesy the author is indebted for the use of this material. these letters appear in full in the _correspondence of nicholas biddle_: mcgrane, - , - , published in september, , by houghton mifflin company, boston.) [ ] marshall to bushrod washington, june , . this letter is unsigned, but is in marshall's unmistakable handwriting and is endorsed by bushrod washington, "c. just. marshall." (marshall mss. lib. cong.) [ ] union, april , . [ ] _union_, april , . [ ] marshall means that jefferson inspired roane's attacks. [ ] marshall had written five essays, but the editor condensed them into two numbers. [ ] marshall to story, may , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] henry wheaton, reporter of the supreme court. [ ] marshall to story, july , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] _enquirer_, jan. , . [ ] _ib._ feb. , . [ ] _journal_, house of delegates, virginia, - , - . [ ] _ib._ . [ ] _ib._ . [ ] this resolution declared that virginia assented to the constitution only on condition that "every power _not granted_, remains with the people, and at their will; that _therefore no right of any denomination can be cancelled, abridged, restrained, or modified_, by the congress, by the senate, or house of representatives acting in any capacity; by the president or any department, or officer of the united states, except in those instances in which power is given by the constitution for those purposes." (_journal_, house of delegates, virginia, - , .) [ ] _journal_, house of delegates, virginia, - , . [ ] _ib._ . [ ] _journal_, house of delegates, virginia, - , . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ . [ ] _ib._ - . [ ] for marshall's opinion in this controversy see _infra_, _et seq._ [ ] the second branch was established at chillicothe. [ ] chap. , _laws of ohio, - _, st sess. - . section of this act will give the student the spirit of this autocratic law. this section made it the "duty" of the state agent collecting the tax, after demand on and refusal of the bank officers to pay the tax, if he cannot readily find in the bank offices the necessary amount of money, "to go into each and any other room or vault ... and to every closet, chest, box or drawer in such banking house, to open and search," and to levy on everything found. (_ib._ .) [ ] a private letter to niles says that when it was found that an injunction had been granted, the friends of the bank rejoiced, "wine was drank freely and mirth abounded." (niles, xvii, .) this explains the otherwise incredible negligence of the bank's attorneys in the proceedings next day. [ ] niles, xvii, - , reprinting account as published in the _chillicothe supporter_, sept. , , and the _ohio monitor_, sept. , . [ ] niles, xvii, . [ ] _ib._ . [ ] report of committee made to the ohio legislature and transmitted to congress. (_annals_, th cong. d sess. _et seq._) [ ] _annals_, th cong. d sess. . [ ] _annals_, th cong. d sess. - . [ ] see vol. ii, - , of this work. [ ] _annals_, th cong. d sess. . [ ] _ib._ . [ ] _ib._ . [ ] see _infra_, chap. vii of this work. [ ] _state doc. fed. rel._: ames, ; and see niles, xvi, , . [ ] pennsylvania house of representatives, _journal, - _, ; _state doc. fed. rel._: ames, footnote to - . [ ] _ib._ [ ] _ib._ . [ ] see _infra_, chap. x. [ ] _state doc. fed. rel._: ames, - . [ ] _ib._ , - . [ ] _ib._ . [ ] see _infra_, chap. x. [ ] see vol. ii, , of this work. [ ] taylor: _construction construed, and constitutions vindicated_, . [ ] taylor: _construction construed_, - . taylor does not, of course, call marshall by name, either in this book or in his other attacks on the chief justice. [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ . [ ] taylor: _construction construed_, . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] taylor: _construction construed_, . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . it is interesting to observe that taylor brands the protective tariff as one of the evils of marshall's nationalist philosophy. "it destroys the division of powers between federal and state governments, ... it violates the principles of representation, ... it recognizes a sovereign power over property, ... it destroys the freedom of labour, ... it taxes the great mass of capital and labour, to enrich the few; ... it increases the burden upon the people ... increases the mass of poverty; ... it impoverishes workmen and enriches employers; ... it increases the expenses of government, ... it deprives commerce of the freedom of exchanges, ... it corrupts congress ... generates the extremes of luxury and poverty." (taylor: _construction construed_, - .) [ ] see _infra_, - ; and see _infra_, chap. x. [ ] taylor: _construction construed_, . [ ] jefferson to ritchie, dec. , , _works_: ford, xii, - . he declined, however, to permit publication of his endorsement of taylor's book. (_ib._) chapter vii threats of war cannot the union exist unless congress and the supreme court shall make banks and lotteries? (john taylor "of caroline.") if a judge can repeal a law of congress, by declaring it unconstitutional, is not this the exercise of political power? (senator richard m. johnson.) the states must shield themselves and meet the invader foot to foot. (jefferson.) the united states ... form a single nation. in war we are one people. in making peace we are one people. in all commercial regulations we are one and the same people. (marshall.) the crisis has arrived contemplated by the framers of the constitution. (senator james barbour.) the appeals of niles, roane, and taylor, and the defiant attitude toward nationalism of virginia, ohio, pennsylvania, and other states, expressed a widespread and militant localism which now manifested itself in another and still more threatening form. the momentous and dramatic struggle in congress over the admission of missouri quickly followed these attacks on marshall and the supreme court. should that territory come into the union only on condition that slavery be prohibited within the new state, or should the slave system be retained? the clamorous and prophetic debate upon that question stirred the land from maine to louisiana. a division of the union was everywhere discussed, and the right of a state to secede was boldly proclaimed. in the house and senate, civil war was threatened. "i fear this subject will be an ignited spark, which, communicated to an immense mass of combustion, will produce an explosion that will shake this union to its centre.... the crisis has arrived, contemplated by the framers of the constitution.... this portentous subject, twelve months ago, was a little speck scarcely visible above the horizon; it has already overcast the heavens, obscuring every other object; materials are everywhere accumulating with which to render it darker."[ ] in these bombastic, yet serious words senator james barbour of virginia, when speaking on the missouri question on january , , accurately described the situation. "i behold the father armed against the son, ... a brother's sword crimsoned with a brother's blood, ... our houses wrapt in flames," exclaimed senator freeman walker of georgia. "if congress ... impose the restriction contemplated [exclusion of slavery from missouri], ... consequences fatal to the peace and harmony of this union will ... result."[ ] senator william smith of south carolina asked "if, under the misguided influence of fanaticism and humanity, the impetuous torrent is once put in motion, what hand short of omnipotence can stay it?"[ ] in picturing the coming horrors senator richard mentor johnson of kentucky declared that "the heart sickens, the tongue falters."[ ] in the house was heard language even more sanguinary. "let gentlemen beware!" exclaimed robert raymond reid of georgia; for to put limits on slavery was to implant "envy, hatred, and bitter reproaches, which 'shall grow to clubs and naked swords, to murder and to death.'... sir, the firebrand, which is even now cast into your society, will require blood ... for its quenching."[ ] only a few northern members answered with spirit. senator walter lowrie of pennsylvania preferred "a dissolution of this union" rather than "the extension of slavery."[ ] daniel pope cook of illinois avowed that "the sound of disunion ... has been uttered so often in this debate, ... that it is high time ... to adopt measures to prevent it.... such declarations ... will have no ... effect upon me.... is it ... the intention of gentlemen to arouse ... the south to rebellion?"[ ] for the most part, however, northern representatives were mild and even hopeful.[ ] such was the situation concerning which john marshall addressed the american people in his epochal opinion in the case of cohens _vs._ virginia. the noble passages of that remarkable state paper were inspired by, and can be understood only in the light of, the crisis that produced them. not in the mere facts of that insignificant case, not in the precise legal points involved, is to be found the inspiration of marshall's transcendent effort on this occasion. indeed, it is possible, as the ohio legislature and the virginia republican organization soon thereafter charged, that cohens _vs._ virginia was "feigned" for the purpose of enabling marshall to assert once more the supremacy of the nation. if the case came before marshall normally, without design and in the regular course of business, it was an event nothing short of providential. if, on the contrary, it was "arranged" so that marshall could deliver his immortal nationalist address, never was such contrivance so thoroughly justified. while the legal profession has always considered this case to be identical, judicially, with that of martin _vs._ hunter's lessee, it is, historically, a part of m'culloch _vs._ maryland and of osborn _vs._ the bank. the opinion of john marshall in the cohens case is one of the strongest and most enduring strands of that mighty cable woven by him to hold the american people together as a united and imperishable nation. fortunate, indeed, for the republic that marshall's fateful pronouncement came forth at such a critical hour, even if technicalities were waived in bringing before him a case in which he could deliver that opinion. for, in conjunction with his exposition in m'culloch _vs._ maryland, it was the most powerful answer that could be given, and from the source of greatest authority, to that defiance of the national government and to the threats of disunion then growing ever bolder and more vociferous. marshall's utterances did not still those hostile voices, it is true, but they gave strength and courage to nationalists and furnished to the champions of the union arguments of peculiar force as coming from the supreme tribunal of the nation. could john marshall have seen into the future he would have beheld abraham lincoln expounding from the stump to the farmers of illinois, in , the doctrines laid down by himself in and . briefly stated, the facts in the case of cohens _vs._ virginia were as follows: the city of washington was incorporated under an act of congress[ ] which, among other things, empowered the corporation to "authorize the drawing of lotteries for effecting any important improvements in the city which the ordinary funds or revenue thereof will not accomplish," to an amount not to exceed ten thousand dollars, the object first to be approved by the president.[ ] accordingly a city ordinance was passed, creating "the national lottery" and authorizing it to sell tickets and conduct drawings. by an act of the virginia legislature[ ] the purchase or sale within the state of lottery tickets, except those of lotteries authorized by the laws of virginia, was forbidden under penalty of a fine of one hundred dollars for each offense. on june , , "p. j. & m. j. cohen, ... being evil-disposed persons," violated the virginia statute by selling to one william h. jennings in the borough of norfolk two half and four quarter lottery tickets "of the national lottery, to be drawn in the city of washington, that being a lottery not authorized by the laws of this commonwealth," as the information of james nimmo, the prosecuting attorney, declared.[ ] at the quarterly session of the court of norfolk, held september , , the case came on for hearing before the mayor, recorder, and aldermen of said borough and was decided upon an agreed case "in lieu of a special verdict," which set forth the sale of the lottery tickets, the virginia statute, the act of congress incorporating the city of washington, and the fact that the national lottery had been established under that act.[ ] the norfolk court found the defendants guilty and fined them in the sum of one hundred dollars. this paltry amount could not have paid one twentieth part of the fees which the eminent counsel who appeared for the cohens would, ordinarily, have charged.[ ] the case was carried to the supreme court on a writ of error. on behalf of virginia, senator james barbour of that state[ ] moved that the writ of error be dismissed, and upon this motion the main arguments were made and marshall's principal opinion delivered. in concluding his argument, senator barbour came near threatening secession, as he had done in the senate: "nothing can so much endanger it [the national government] as exciting the hostility of the state governments. with them it is to determine how long this government shall endure."[ ] in opening for the cohens, david b. ogden of new york denied that "there is any such thing as a sovereign state, independent of the union." the authority of the supreme court "extends ... to all cases arising under the constitution, laws, and treaties of the united states."[ ] cohens _vs._ virginia was such a case. upon the supremacy of the supreme court over state tribunals depended the very life of the nation, declared william pinkney, who appeared as the principal counsel for the cohens. give up the appellate jurisdiction of national courts "from the decisions of the state tribunals" and "every other branch of federal authority might as well be surrendered. to part with this, leaves the union a mere league or confederacy."[ ] long, brilliantly, convincingly, did pinkney speak. the extreme state rights arguments were, he asserted, "too wild and extravagant"[ ] to deserve consideration. promptly marshall delivered the opinion of the court on barbour's motion to dismiss the writ of error. the points made against the jurisdiction of the supreme court were, he said: " st. that a state is a defendant. d. that no writ of error lies from this court to a state court. d. ... that this court ... has no right to review the judgment of the state court, because neither the constitution nor any law of the united states has been violated by that judgment."[ ] the first two points "vitally ... affect the union," declared the chief justice, who proceeds to answer the reasoning of the state judges when, in hunter _vs._ fairfax's devisee, they hurled at the supreme court virginia's defiance of national authority.[ ] marshall thus states the virginia contentions: that the constitution has "provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised ... by the courts of every state of the union. that the constitution, laws, and treaties, may receive as many constructions as there are states; and that this is not a mischief, or, if a mischief, is irremediable."[ ] why was the constitution established? because the "american states, as well as the american people, have believed a close and firm union to be essential to their liberty and to their happiness. they have been taught by experience, that this union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states."[ ] the very nature of the national government leaves no doubt of its supremacy "in all cases where it is empowered to act"; that supremacy was also expressly declared in the constitution itself, which plainly states that it, and laws and treaties made under it, "'shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary notwithstanding.'" this supremacy of the national government is a constitutional "principle." and why were "ample powers" given to that government? the constitution answers: "in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare."[ ] the "limitations on the sovereignty of the states" were made for the same reason that the "supreme government" of the nation was endowed with its broad powers. in addition to express limitations on state "sovereignty" were many instances "where, perhaps, _no other power is conferred on congress than a conservative power to maintain the principles_ established in the constitution. the maintenance of these principles in their purity, is certainly among the great duties of the government."[ ] marshall had been chief justice of the united states for twenty years, and these were the boldest and most extreme words that he had spoken during that period. like all men of the first rank, marshall met in a great way, and without attempt at compromise, a great issue that could not be compromised--an issue which, everywhere, at that moment, was challenging the existence of the nation. there must be no dodging, no hedging, no equivocation. instead, there must be the broadest, frankest, bravest declaration of national powers that words could express. for this reason marshall said that these powers might be exercised even as a result of "a conservative power" in congress "to maintain the principles established in the constitution." the judicial department is an agency essential to the performance of the "great duty" to preserve those "principles." "it is authorized to decide all cases of every description, arising under the constitution or laws of the united states." those cases in which a state is a party are not excepted. there are cases where the national courts are given jurisdiction solely because a state is a party, and regardless of the subject of the controversy; but in all cases involving the constitution, laws, or treaties of the nation, the national tribunals have jurisdiction, regardless of parties.[ ] "principles" drawn from the very "_nature of government_" require that "the judicial power ... must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws"--not that "it is fit that it should be so; but ... that this fitness" is an aid to the right interpretation of the constitution.[ ] what will be the result if virginia's attitude is confirmed? nothing less than the prostration of the national government "at the feet of every state in the union.... each member will possess a veto on the will of the whole." consider the country's experience. assumption[ ] had been deemed unconstitutional by some states; opposition to excise taxes had produced the whiskey rebellion;[ ] other national statutes "have been questioned partially, while they were supported by the great majority of the american people."[ ] there can be no assurance that such divergent and antagonistic actions may not again be taken. state laws in conflict with national laws probably will be enforced by state judges, since they are subject to the same prejudices as are the state legislatures--indeed, "in many states the judges are dependent for office and for salary on the will of the legislature."[ ] the constitution attaches first importance to the "independence" of the judiciary; can it have been intended to leave to state "tribunals, where this independence may not exist," cases in which "a state shall prosecute an individual who claims the protection of an act of congress?" marshall gives examples of possible collisions between national and state authority, in ordinary times, as well as in exceptional periods.[ ] even to-day it is obvious that the chief justice was denouncing the threatened resistance by state officials to the tariff laws, a fact of commanding importance at the time when marshall's opinion in cohens _vs._ virginia was delivered. at this point he rises to the heights of august eloquence: "a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. its course cannot always be tranquil. it is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it ... with the means of self-preservation from the perils it may be destined to encounter. no government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day." marshall is here replying to the southern threats of secession, just as he rebuked the same spirit when displayed by his new england friends ten years earlier.[ ] then turning to the conflict of courts, he remarks, as though the judicial collision is all that he has in mind: "a government should repose on its own courts, rather than on others."[ ] he recalls the state of the country under the confederation when requisitions on the states were "habitually disregarded," although they were "as constitutionally obligatory as the laws enacted by the present congress." in view of this fact is it improbable that the framers of the constitution meant to give the nation's courts the power of preserving that constitution, and laws made in pursuance of it, "from all violation from every quarter, so far as judicial decisions can preserve them"?[ ] virginia contends that if states wish to destroy the national government they can do so much more simply and easily than by judicial decision--"they have only not to elect senators, and it expires without a struggle"; and that therefore the destructive effect on the nation of decisions of state courts cannot be taken into account when construing the constitution. to this marshall makes answer: "whenever hostility to the existing system shall become universal, it will be also irresistible. the people made the constitution, and the people can unmake it. it is the creature of their own will, and lives only by their will. but this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. the attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. the acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will."[ ] this is a direct reply to the southern arguments in the missouri debate which secessionists were now using wherever those who opposed national laws and authority raised their voices. john marshall is blazing the way for abraham lincoln. he speaks of a "section" instead of a state. the nation, he says, may constitutionally preserve itself "against a section." and this right of the nation rests on "principles" inherent in the constitution. but in cohens _vs._ virginia no "section" was arrayed against the nation--on the record there was nothing but a conflict of jurisdiction of courts, and this only by a strained construction of a municipal lottery ordinance into a national law. the chief justice is exerting to the utmost his tremendous powers, not to protect two furtive peddlers of lottery tickets, but to check a powerful movement that, if not arrested, must destroy the republic. should that movement go forward thereafter, it must do so over every constitutional obstacle which the supreme court of the nation could throw in its way. in cohens _vs._ virginia, john marshall stamped upon the brow of localism the brand of illegality. if this is not the true interpretation of his opinion in that case, all of the exalted language he used is mere verbiage. marshall dwells on "the subordination of the parts to the whole." the one great motive for establishing the national judiciary "was the preservation of the constitution and laws of the united states, so far as they can be preserved by judicial authority."[ ] returning to the technical aspects of the controversy, marshall points out that the supreme court plainly has appellate jurisdiction of the cohens case: "if a state be a party, the jurisdiction of this court is original; if the case arise under a [national] constitution or a [national] law, the jurisdiction is appellate. but a case to which a state is a party may arise under the constitution or a law of the united states."[ ] that would mean a double jurisdiction. marshall, therefore, shows, at provoking length,[ ] that the appellate jurisdiction of the supreme court "in all cases arising under the constitution, laws, or treaties of the united states, was not arrested by the circumstance that a state was a party";[ ] and in this way he explains that part of his opinion in marbury _vs._ madison, in which he reasoned that section of the ellsworth judiciary act was unconstitutional.[ ] marshall examines the eleventh amendment and becomes, for a moment, the historian, a rôle in which he delighted. "the states were greatly indebted" at the close of the revolution; the constitution was opposed because it was feared that their obligations would be collected in the national courts. this very thing happened. "the alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was ... adopted." but "its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation." it was to prevent creditors from suing a state--"no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation."[ ] with savage relish the chief justice attacks and demolishes the state rights theory that the supreme court cannot review the judgment of a state court "in any case." that theory, he says, "considers the federal judiciary as completely foreign to that of a state; and as being no more connected with it, in any respect whatever, than the court of a foreign state."[ ] but "the united states form, for many, and for most important purposes, a single nation.... in war, we are one people. in making peace, we are one people. in all commercial regulations, we are one and the same people. in many other respects, the american people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the union. "it is their government, and in that character they have no other. america has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. the people have declared, that in the exercise of all powers given for these objects it is supreme. it can, then, in effecting these objects, legitimately control all individuals or governments within the american territory. the constitution and laws of a state, so far as they are repugnant to the constitution and laws of the united states, are absolutely void. "these states are constituent parts of the united states. they are members of one great empire."[ ] the national court alone can decide all questions arising under the constitution and laws of the nation. "the uniform decisions of this court on the point now under consideration," he continues, "have been assented to, with a single exception,[ ] by the courts of every state in the union whose judgments have been revised."[ ] as to the lottery ordinance of the city of washington, congress has exclusive power to legislate for the district of columbia and, in exercising that power, acts "as the legislature of the union." the constitution declares that it, and all laws made under it, constitute "the supreme law of the land."[ ] laws for the government of washington are, therefore, parts of this "supreme law" and "bind the nation.... congress legislates, in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited."[ ] the chief justice gives examples of the exclusive powers of congress, all of which are binding throughout the republic. "congress is not a local legislature, but exercises this particular power [to legislate for the district of columbia], like all its other powers, in its high character, as the legislature of the union."[ ] the punishment of the cohens for selling tickets of the national lottery, created by the city of washington under authority of an act of congress, involves the construction of the constitution and of a national law. the supreme court, therefore, has jurisdiction of the case, and the motion to dismiss the writ of error is denied. marshall having thus established the jurisdiction of the supreme court to hear and decide the case, it was argued "on the merits." again david b. ogden appeared for the cohens and was joined by william wirt as attorney-general. for virginia webster took the place of senator barbour. the argument was upon the true construction of the act of congress authorizing the city of washington to establish a lottery; and upon this marshall delivered a second opinion, to the effect that the lottery ordinance was "only co-extensive with the city" and a purely local affair; that the court at norfolk had a right to fine the cohens for violating a law of virginia; and that its judgment must be affirmed.[ ] so ended, as far as the formal record goes, the famous case of cohens _vs._ virginia. on its merits it amounted to nothing; the practical result of the appeal was nothing; but it afforded john marshall the opportunity to tell the nation its duty in a crowning national emergency. intense was the excitement and violent the rage in the anti-nationalist camp when marshall's opinion was published. ritchie, in his paper, demanded that the supreme court should be abolished.[ ] the virginia republican organization struck instantly, spencer roane wielding its sword. the _enquirer_ published a series of five articles between may and june , , inclusive, signed "algernon sidney," roane's latest _nom de plume_. "the liberties and constitution of our country are ... deeply and vitally endangered by the fatal effects" of marshall's opinion. "appointed in one generation it [the supreme court] claims to make laws and constitutions for another."[ ] the unanimity of the court can be explained only on the ground of "a culpable apathy in the other judges, or a confidence not to be excused, in the principles and talents of their chief." sidney literally wastes reams of paper in restating the state rights arguments. he finds a malign satisfaction in calling the constitution a "compact," a "league," a "treaty" between "sovereign governments."[ ] national judges have "_no_ interest in the government or laws of any state but that of which they are citizens," asserts sidney. "as to every other state but that, they are, completely, aliens and foreigners."[ ] virginia is as much a foreign nation as russia[ ] so far as jurisdiction of the supreme court over the judgments of state courts is concerned. marshall's doctrine "is the blind and absolute despotism which exists in an army, or is exercised by a tyrant over his slaves."[ ] the apostate republican justices who concurred with marshall are denounced, and with greater force, by reason of a tribute paid to the hated chief justice: "how else is it that they also go to all lengths with the ultra-federal leader who is at the head of their court? that leader is honorably distinguished from you messieurs judges. he is true to his former politics. he has even pushed them to an extreme never until now anticipated. he must be equally delighted and _surprised_ to find his _republican_ brothers going with him"--a remark as true as it was obvious. "how is it ... that they go with him, not only as to the results of his opinions, but as to all the points and positions contained in the most lengthy, artful and alarming opinions?" because, answers sidney, they are on the side of power and of "the government that feeds them."[ ] what marshall had said in the virginia constitutional convention of refutes his opinions now. "great principles then operated on his luminous mind, not hair-splitting quibbles and verbal criticisms."[ ] the "artifices" of the chief justice render his opinions the more dangerous.[ ] if the anger of john marshall ever was more aroused than it was by roane's assaults upon him, no evidence of the fact exists. before the last number of the algernon sidney essays appeared, the chief justice confides his wrathful feelings to the devoted and sympathetic story: "the opinion of the supreme court in the lottery case has been assaulted with a degree of virulence transcending what has appeared on any former occasion. algernon sidney is written by the gentleman who is so much distinguished for his feelings towards the supreme court, & if you have not an opportunity of seeing the enquirer i will send it to you. "there are other minor gentry who seek to curry favor & get into office by adding their mite of abuse, but i think for coarseness & malignity of invention algernon sidney surpasses all party writers who have ever made pretensions to any decency of character. there is on this subject no such thing as a free press in virginia, and of consequence the calumnies and misrepresentations of this gentleman will remain uncontradicted & will by many be believed to be true. he will be supposed to be the champion of state rights, instead of being what he really is, the champion of dismemberment."[ ] when roane's articles were finished, marshall wrote story: "i send you the papers containing the essays of algernon sidney. their coarseness & malignity would designate the author if he was not avowed. the argument, if it may be called one, is, i think, as weak as its language is violent & prolix. two other gentlemen[ ] have appeared in the papers on this subject, one of them is deeply concerned in pillaging the purchasers of the fairfax estate in which goodly work he fears no other obstruction than what arises from the appellate power of the supreme court, & the other is a hunter after office who hopes by his violent hostility to the union, which in virginia assumes the name of regard for state rights, & by his devotion to algernon sidney, to obtain one. in support of the sound principles of the constitution & of the union of the states, not a pen is drawn. in virginia the tendency of things verges rapidly to the destruction of the government & the re-establishment of a league of sovereign states. i look elsewhere for safety."[ ] another of the "minor gentry" of whom marshall complained was william c. jarvis, who in had written a book entitled "the republicans," in which he joined in the hue and cry against marshall because of his opinion in m'culloch _vs._ maryland. jarvis sent a copy of his book to jefferson who, in acknowledging the receipt of it, once more spoke his mind upon the national judiciary. to jarvis's statement that the courts are "the ultimate arbiters of all constitutional questions," jefferson objected. it was "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy," wrote the "sage of monticello." "the constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.... if the legislature fails to pass" necessary laws--such as those for taking of the census, or the payment of judges; or even if "they fail to meet in congress, the judges cannot issue their mandamus to them." so, concludes jefferson, if the president does not appoint officers to fill vacancies, "the judges cannot force him." in fact, the judges "can issue their mandamus ... to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the president or legislature may issue orders to the judges.... when the legislature or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. the exemption of the judges from that is quite dangerous enough."[ ] this letter by jefferson had just been made public, and story, who appears to have read everything from the greek classics to the current newspaper gossip, at once wrote marshall. the chief justice replied that jefferson's view "rather grieves than surprizes" him. but he could not "describe the surprize & mortification" he felt when he learned that madison agreed with jefferson "with respect to the judicial department. for m^r jefferson's opinion as respects this department it is not difficult to assign the cause. he is among the most ambitious, & i suspect among the most unforgiving of men. his great power is over the mass of the people, & this power is chiefly acquired by professions of democracy. every check on the wild impulse of the moment is a check on his own power, & he is unfriendly to the source from which it flows. he looks of course with ill will at an independent judiciary. "that in a free country with a written constitution any intelligent man should wish a dependent judiciary, or should think that the constitution is not a law for the court as well as for the legislature would astonish me, if i had not learnt from observation that with many men the judgement is completely controuled by the passions."[ ] to jefferson, marshall ascribes roane's attacks upon the supreme court: "there is some reason to believe that the essays written against the supreme court were, in a degree at least, stimulated by this gentleman, and that although the coarseness of the language belongs exclusively to the author, its acerbity has been increased by his communications with the great lama of the mountains. he may therefore feel himself ... required to obtain its republication in some place of distinction."[ ] john e. hall was at that time the publisher at philadelphia of _the journal of american jurisprudence_. jefferson had asked hall to reprint roane's articles, and hall had told story, who faithfully reported to marshall. "i am a little surprized at the request which you say has been made to m^r hall, although there is no reason for my being so. the settled hostility of the gentleman who has made that request to the judicial department will show itself in that & in every other form which he believes will conduce to its object. for this he has several motives, & it is not among the weakest that the department would never lend itself as a tool to work for his political power.... "what does m^r hall purpose to do?" asks marshall. "i do not suppose you would willingly interfere so as to prevent his making the publication, although i really think it is in form & substance totally unfit to be placed in his law journal. i really think a proper reply to the request would be to say that no objection existed to the publication of any law argument against the opinion of the supreme court, but that the coarseness of its language, its personal & official abuse & its tedious prolixity constituted objections to the insertion of algernon sidney which were insuperable. if, however, m^r hall determines to comply with this request, i think he ought, unless he means to make himself a party militant, to say that he published that piece by particular request, & ought to subjoin the masterly answer of m^r wheaton. i shall wish to know what course m^r hall will pursue."[ ] roane's attacks on marshall did not appear in hall's law magazine! quitting such small, unworthy, and prideful considerations, marshall rises for a moment to the great issue which he met so nobly in his opinions in m'culloch _vs._ maryland and in cohens _vs._ virginia. "a deep design," he writes story, "to convert our government into a mere league of states has taken strong hold of a powerful & violent party in virginia. the attack upon the judiciary is in fact an attack upon the union. the judicial department is well understood to be that through which the government may be attacked most successfully, because it is without patronage, & of course without power. and it is equally well understood that every subtraction from its jurisdiction is a vital wound to the government itself. the attack upon it therefore is a masked battery aimed at the government itself. "the whole attack, if not originating with m^r jefferson, is obviously approved & guided by him. it is therefore formidable in other states as well as in this, & it behoves the friends of the union to be more on the alert than they have been. an effort will certainly be made to repeal the ^{th} sec. of the judicial act."[ ] marshall's indignation at roane exhausted his limited vocabulary of resentment. had he possessed jefferson's resources of vituperation, the literature of animosity would have been enriched by the language marshall would have indulged in when the next republican battery poured its volleys upon him. no sooner had roane's artillery ceased to play upon marshall and the supreme court than the roar of taylor's heavy guns was again heard. in a powerful and brilliant book, called "tyranny unmasked," he directed his fire upon the newly proposed protective tariff, "this sport for capitalists and death for the rest of the nation."[ ] the theory of the chief justice that there is a "supreme federal power" over the states is proved false by the proceedings of the constitutional convention at philadelphia in . certain members then proposed to give the national government a veto over the acts of state governments.[ ] this proposal was immediately rejected. yet to-day marshall proclaims a national power, "infinitely more objectionable," which asserts that the supreme court has "a negative or restraining power over the state governments."[ ] a protective tariff is only another monstrous child of marshall's accursed nationalism, that prolific mother of special favors for the few. by what reasoning is a protective tariff made constitutional? by the casuistry of john marshall, that "present fashionable mode of construction, which considers the constitution as a lump of fine gold, a small portion of which is so malleable as to cover the whole mass. by this golden rule for manufacturing the constitution, a particular power given to the federal government may be made to cover all the rights reserved to the people and the states;[ ] a limited jurisdiction given to the federal courts is made to cover all the state courts;[ ] and a legislative power over ten miles square is malleated over the whole of the united states,[ ] as a single guinea may be beaten out so as to cover a whole house."[ ] such is the method by which a protective tariff is made constitutional. for one hundred and twenty-one scintillant and learned pages taylor attacks this latest creation of national "tyranny." the whole nationalist system is "tyranny," which it is his privilege to "unmask," and the duty of all true americans to destroy.[ ] marshall's constitutional doctrine "amounts to the insertion of the following article in the constitution: 'congress shall have power, with the assent of the supreme court, to exercise or usurp, and to prohibit the states from exercising, any or all of the powers reserved to the states, whenever they [congress] shall deem it convenient, or for the general welfare.'"[ ] such doctrines invite "civil war."[ ] by marshall's philosophy "the people are made the prey of exclusive privileges." in short, under him the supreme court has become the agent of special interests.[ ] "cannot the union subsist unless congress and the supreme court shall make banks and lotteries?"[ ] jefferson eagerly read roane's essays and taylor's book and wrote concerning them: "the judiciary branch is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass. against this i know no one who, equally with judge roane himself, possesses the power and the courage to make resistance; and to him i look, and have long looked, as our strongest bulwark." at this point jefferson declares for armed resistance to the nation in even stronger terms than those used by roane or taylor: "if congress fails to shield the states from dangers so palpable and so imminent, the states must shield themselves, and meet the invader foot to foot.... this is already half done by colonel taylor's book" which "is the most effectual retraction of our government to its original principles which has ever yet been sent by heaven to our aid. every state in the union should give a copy to every member they elect, as a standing instruction, and ours should set the example."[ ] until his death the aged politician raged continuously, except in one instance,[ ] at marshall and the supreme court because of such opinions and decisions as those in the bank and lottery cases. he writes justice johnson that he "considered ... maturely" roane's attacks on the doctrines of cohens _vs._ virginia and they appeared to him "to pulverize every word which had been delivered by judge marshall, of the extra-judicial part of his opinion." if roane "can be answered, i surrender human reason as a vain and useless faculty, given to bewilder, and not to guide us.... this practice of judge marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and censurable."[ ] again jefferson writes that, above all other officials, those who most need restraint from usurping legislative powers are "the judges of what is commonly called our general government, but what i call our foreign department.... a few such doctrinal decisions, as barefaced as that of the cohens," may so arouse certain powerful states as to check the march of nationalism. the supreme court "has proved that the power of declaring what the law is, _ad libitum_, by sapping and mining, slily and without alarm, the foundations of the constitution, can do what open force would not dare to attempt."[ ] so it came to pass that john marshall and the supreme court became a center about which swirled the forces of a fast-gathering storm that raged with increasing fury until its thunders were the roar of cannon, its lightning the flashes of battle. broadly speaking, slavery and free trade, state banking and debtors' relief laws were arraigned on the side of localism; while slavery restriction, national banking, a protective tariff, and security of contract were marshaled beneath the banner of nationalism. it was an assemblage of forces as incongruous as human nature itself. the republican protagonists of localism did not content themselves with the writing of enraged letters or the publication of flaming articles and books. they were too angry thus to limit their attacks, and they were politicians of too much experience not to crystallize an aroused public sentiment. on december , , senator richard m. johnson of kentucky, who later was honored by his party with the vice-presidency, offered an amendment to the constitution that the senate be given appellate jurisdiction in all cases where the constitution or laws of a state were questioned and the state desired to defend them; and in all cases "where the judicial power of the united states shall be so construed as to extend to any case ... arising under" the national constitution, laws, or treaties.[ ] coöperating with johnson in the national senate, roane in virginia, when the legislature of that state met, prepared amendments to the national constitution which, had they been adopted by the states, would have destroyed the supreme court. he declares that he takes this step "with a view to aid" the congressional antagonists of nationalism and the supreme court, "or rather to lead, on this important subject." the amendments "will be copied by another hand & circulated among the members. i would not wish to injure the great cause, by being known as the author. my name would damn them, as i believe, nay hope, with the _tories_." roane asks his correspondent to "jog your chesterfield delegates ... and other good republicans," and complains that "jefferson & madison hang back too much, in this great crisis."[ ] on monday, january , , senator johnson took the floor in support of his proposition to reduce the power of the supreme court. "the conflicts between the federal judiciary and the sovereignty of the states," he said, "are become so frequent and alarming, that the public safety" demands a remedy. "the federal judiciary has assumed a guardianship over the states, even to the controlling of their peculiar municipal regulations."[ ] the "basis of encroachment" is marshall's "doctrine of federal supremacy ... established by a judicial tribunal which knows no change. its decisions are predicated upon the principle of perfection, and assume the character of immutability. like the laws of the medes and persians, they live forever, and operate through all time." what shall be done? an appeal to the senate "will be not only harmless, but beneficial." it will quiet "needless alarms ... restore ... confidence ... preserve ... harmony." there is pressing need to tranquillize the public mind concerning the national judiciary,[ ] a department of the government which is a denial of our whole democratic theory. "some tribunal should be established, responsible to the people, to correct their [the judges'] aberrations." why should not the national judiciary be made answerable to the people? no fair-minded man can deny that the judges exercise legislative power. "if a judge can repeal a law of congress, by declaring it unconstitutional, is not this the exercise of political power? if he can declare the laws of a state unconstitutional and void, and, in one moment, subvert the deliberate policy of that state for twenty-four years, as in kentucky, affecting its whole landed property, ... is not this the exercise of political power? all this they have done, and no earthly power can investigate or revoke their decisions."[ ] the constitution gives the national judiciary no such power--that instrument "is as silent as death upon the subject."[ ] how absurd is the entire theory of judicial independence! why should not congress as properly declare the decisions of the national courts unconstitutional as that the courts should do the same thing to acts of congress or laws of states? think of it as a matter of plain common sense--"forty-eight senators, one hundred and eighty-eight representatives, and the president of the united states, all sworn to maintain the constitution, have concurred in the sentiment that the measure is strictly conformable to it. seven judges, irresponsible to any earthly tribunal for their decisions, revise the measure, declare it unconstitutional, and effectually destroy its operation. whose opinion shall prevail? that of the legislators and president, or that of the court?"[ ] the supreme court, too, has gently exercised the principle of judicial supervision over acts of congress; has adjudged that congress has a free hand in choosing means to carry out powers expressly granted to that body. but consider the conduct of the supreme court toward the states: "an irresponsible judiciary" has ruthlessly struck down state law after state law; has repeatedly destroyed the decisions of state courts. look at marshall's opinions in m'culloch _vs._ maryland, in the dartmouth college case, in united states _vs._ peters, in sturges _vs._ crowninshield, in cohens _vs._ virginia--smallest, but perhaps worst of all, in wilson _vs._ new jersey. the same principle runs through all these pronouncements;--the states are nothing, the nation everything.[ ] webster, in the house, heard of johnson's speech and promptly wrote story: "mr. johnson of kentucky ... has dealt, they say, pretty freely with the supreme court. dartmouth college, sturges and crowninshield, _et cetera_, have all been demolished. to-morrow he is to pull to pieces the case of the kentucky betterment law. then governor [senator] barber [barbour] is to annihilate cohens _v._ virginia. so things go; but i see less reality in all this smoke than i thought i should, before i came here."[ ] it would have been wiser for webster to have listened carefully to johnson's powerful address than to have sneered at it on hearsay, for it was as able as it was brave; and, erroneous though it was, it stated most of the arguments advanced before or since against the supervisory power of the national judiciary over the enactments of state legislatures and the decisions of state courts. when the kentucky senator resumed his speech the following day, he drove home his strongest weapon--an instance of judicial interference with state laws which, indeed, at first glance appeared to have been arbitrary, autocratic, and unjust. the agreement between virginia and kentucky by which the latter was separated from the parent commonwealth provided that "all private rights and interests of lands" in kentucky "derived from the laws of virginia, shall remain valid ... and shall be determined by the laws now existing" in virginia.[ ] in the kentucky legislature enacted that persons occupying lands in that state who could show a clear and connected title could not, without notice of any adverse title, upon eviction by the possessor of a superior title, be held liable for rents and profits during such occupancy.[ ] moreover, all permanent improvements made on the land must, in case of eviction, be deducted from the value of the land and judgment therefor rendered in favor of the innocent occupant and against the successful claimant. on january , , this "occupying claimant" law, as it was called, was further strengthened by a statute providing that any person "seating and improving" lands in kentucky, believing them "to be his own" because of a claim founded on public record, should be paid for such seating and improvements by any person who thereafter was adjudged to be the lawful owner of the lands. against one such occupant, richard biddle, the heirs of a certain john green brought suit in the united states court for the district of kentucky, and the case was certified to the supreme court on a division of opinion of the judges. the case was argued and decided at the same term at which marshall delivered his opinion in cohens _vs._ virginia. story delivered the unanimous opinion of the court: that the kentucky "occupying claimant" laws violated the separation "compact" between virginia and kentucky, because, "by the _general principles of law_, and from the necessity of the case, titles to real estate can be determined only by the laws of the state under which they were acquired."[ ] unfortunately story did not specifically base the court's decision on the contract clause of the constitution, but left this vital point to inference. henry clay, "as _amicus curiæ_," moved for a rehearing because the rights of numerous occupants of kentucky lands "would be irrevocably determined by this decision," and because biddle had permitted the case "to be brought to a hearing without appearing by his counsel, and without any argument on that side of the question."[ ] in effect, clay thus intimated that the case was feigned. the motion was granted and green _vs._ biddle was awaiting reargument when senator johnson made his attack on the national judiciary. johnson minutely examined the historical reasons for including the contract clause in the national constitution, "in order to understand perfectly well the mystical influence" of that provision.[ ] it never was intended to affect such legislation as the kentucky land system. the intent and meaning of the contract clause is, that "you shall not declare to-day that contract void, ... which was made yesterday under the sanction of law."[ ] does this simple rule of morality justify the national courts in annulling measures of public policy "which the people have solemnly declared to be expedient"?[ ] the decision of the supreme court in green _vs._ biddle, said johnson, "prostrates the deliberate" course which kentucky has pursued for almost a quarter of a century, "and affects its whole landed interest. the effect is to legislate for the people; to regulate the interior policy of that community, and to establish their municipal code as to real estate."[ ] if such judicial supremacy prevails, the courts can "establish systems of policy by judicial decision." what is this but despotism? "i see no difference, whether you take this power from the people and give it to your judges, who are in office for life, or grant it to a king for life."[ ] the time is overripe, asserts johnson, to check judicial usurpation--already the national judiciary has struck down laws of eight states.[ ] the career of this judicial oligarchy must be ended. "the security of our liberties demands it." let the jurisdiction of national courts be specifically limited; or let national judges be subject to removal upon address of both houses of congress; or let their commissions be vacated "after a limited term of service"; or, finally, "vest a controlling power in the senate ... or some other body who shall be responsible to the elective franchise."[ ] the kentucky legislature backed its fearless senator;[ ] but the virginia assembly weakened at the end. most of the kentucky land titles, which the supreme court's decision had protected as against the "occupying claimants," were, of course, held by virginians or their assignees. virginia conservatives, too, were beginning to realize the wisdom of marshall's nationalist policy as it affected all their interests, except slavery and tariff taxation; and these men were becoming hesitant about further attacks on the supreme court. doubtless, also, marshall's friends were active among the members of the legislature. roane understood the situation when he begged friends to "jog up" the apathetic, and bemoaned the quiescence of jefferson and madison. his proposed amendments were lost, though by a very close vote.[ ] nevertheless, the virginia localists carried the fight to the floors of congress. on april , , andrew stevenson, one of roane's lieutenants and now a member of the national house, demanded the repeal of section of the ellsworth judiciary act which gave the supreme court appellate jurisdiction over the state courts. but stevenson was unwontedly mild. he offered his resolution "in a spirit of peace and forbearance.... it was ... due to those states, in which the subject has been lately so much agitated, as well as to the nation, to have it ... decided."[ ] as soon as congress convened in the winter of , senator johnson renewed the combat; but he had become feeble, even apologetic. he did not mean to reflect "upon the conduct of the judges, for he believed them to be highly enlightened and intelligent." nevertheless, their life tenure and irresponsibility required that some limit should be fixed to their powers. so he proposed that the membership of the supreme court be increased to ten, and that at least seven justices should concur in any opinion involving the validity of national or state laws.[ ] four months later, senator martin van buren reported from the judiciary committee, a bill "that no law of any of the states shall be rendered invalid, without the concurrence of at least five judges of the supreme court; their opinions to be separately expressed."[ ] but the friends of the judiciary easily overcame the innovators; the bill was laid on the table;[ ] and for that session the assault on the supreme court was checked. at the next session, however, kentucky again brought the matter before congress. charles a. wickliffe, a representative from that state, proposed that writs of error from the supreme court be "awarded to either party," regardless of the decision of the supreme court of any state.[ ] webster, on the judiciary committee, killed wickliffe's resolution with hardly a wave of his hand.[ ] after a reargument of green _vs._ biddle, lasting an entire week,[ ] the supreme court stood to its guns and again held the kentucky land laws unconstitutional. yet so grave was the crisis that the decision was not handed down for a whole year. this time the opinion of the court was delivered on february , , by bushrod washington, who held that the contract clause of the national constitution was violated, but plainly considered that "the principles of law and reason"[ ] were of more importance in this case than the constitutional provision. washington's opinion displays the alarm of the supreme court at the assaults upon it: "we hold ourselves answerable to god, our consciences and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may."[ ] kentucky promptly replied. in his message to the legislature, governor john adair declared that the kentucky decisions of the supreme court struck at "the right of the people to govern themselves." the national authority can undoubtedly employ force to "put down insurrection," but "that ... day, when the government shall be compelled to resort to the bayonet to compel a state to submit to its laws, will not long precede an event of all others to be deprecated."[ ] one of marshall's numerous kentucky kinsmen, who was an active member of the legislature, stoutly protested against any attack on the supreme court; nevertheless he offered a resolution reciting the grievances of the state and proposing an address "to the supreme court of the united states, in full session," against the decision and praying for "its total and definitive reversal."[ ] what! exclaimed john rowan, another member of the legislature, shall kentucky again petition "like a degraded province of rome"?[ ] he proposed counter-resolutions that the legislature "do ... most solemnly protest ... against the erroneous, injurious, and degrading doctrines of the opinion ... in ... green and biddle."[ ] when modified, rowan's resolutions, one of which hinted at forcible resistance to the mandate of the supreme court, passed by heavy majorities.[ ] later resolutions openly threatened to "call forth the physical power of the state, to resist the execution of the decisions of the court," which were "considered erroneous and unconstitutional."[ ] in the same year that the supreme court decided the kentucky land case, justice johnson aroused south carolina by a decision rendered in the united states district court of that state. one henry elkison, a negro sailor and a british subject, was taken by the sheriff of the charleston district, from the british ship homer; and imprisoned under a south carolina law which directed the arrest and confinement of any free negro on board any ship entering the ports of that state, the negro to be released only when the vessel departed.[ ] johnson wrathfully declared that the "unconstitutionality of the law ... will not bear argument"--nobody denied that it could not be executed "without clashing with the general powers of the united states, to regulate commerce." thereupon, one of the counsel for the state said that the statute must and would be enforced; and "that if a dissolution [_sic_] of the union must be the alternative he was ready to meet it"--an assertion which angered johnson who delivered an opinion almost as strong in its nationalism as those of marshall.[ ] throughout south carolina and other slaveholding states, the action of justice johnson inflamed the passions of the white population. "a high state of excitement exists," chronicles niles.[ ] marshall, of course, heard of the outcry against his associate and promptly wrote story: "our brother johnson, i perceive, has hung himself on a democratic snag in a hedge composed entirely of thorny state rights in south carolina.... you ... could scarcely have supposed that it [johnson's opinion] would have excited so much irritation as it seems to have produced. the subject is one of much feeling in the south.... the decision has been considered as another act of judicial usurpation; but the sentiment has been avowed that if this be the constitution, it is better to break that instrument than submit to the principle.... fuel is continually adding to the fire at which _exaltées_ are about to roast the judicial department."[ ] the governor and legislature of south carolina fiercely maintained the law of the state--it was to them a matter of "self-preservation." niles was distressingly alarmed. he thought that the collision of south carolina with the national judiciary threatened to disturb the harmony of the republic as much as the missouri question had done.[ ] this, then, was the situation when the ohio bank case reached the supreme court.[ ] seven states were formally in revolt against the national judiciary, and others were hostile. moreover, the protective tariff of was under debate in congress; its passage was certain, while in the south ever-growing bitterness was manifesting itself toward this plundering device of nationalism as john taylor branded it. in the house southern members gave warning that the law might be forcibly resisted.[ ] the first hints of nullification were heard. time and again marshall's nationalist construction of the constitution was condemned. to the application of his theory of government was laid most of the abuses of which the south complained; most of the dangers the south apprehended. thus again stands out the alliance of the various forces of localism--slavery, state banking, debtors' relief laws, opposition to protective tariffs--which confronted the supreme court with threats of physical resistance to its decrees and with the ability to carry out those threats. two arguments were had in osborn _vs._ the bank of the united states, the first by charles hammond and by henry clay for the bank;[ ] the second by john c. wright, governor ethan allen brown, and robert goodloe harper, for ohio, and by clay, webster, and john sergeant for the bank. arguments on both sides were notable, but little was presented that was new. counsel for ohio insisted that the court had no jurisdiction, since the state was the real party against which the proceedings in the united states court in ohio were had. clay made the point that the ohio tax, unlike that of maryland, "was a confiscation, and not a tax.... is it possible," he asked, "that ... the law of the whole may be defeated ... by a single part?"[ ] on march , , marshall delivered the opinion of the court. all well-organized governments, he begins, "must possess, within themselves, the means of expounding, as well as enforcing, their own laws." the makers of the constitution kept constantly in view this great political principle. the judiciary article "enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the united states.... that power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. it then becomes a case" over which the constitution gives jurisdiction to the national courts. "the suit of the bank of the united states _v._ osborn _et al._, is a case, and the question is, whether it arises under a law of the united states."[ ] the fact that other questions are involved does not "withdraw a case" from the jurisdiction of the national courts; otherwise, "almost every case, although involving the construction of a [national] law, would be withdrawn; and a clause in the constitution, relating to a subject of vital importance to the government and expressed in the most comprehensive terms, would be construed to mean almost nothing." it is true that the constitution specifies the cases in which the supreme court shall have original jurisdiction, but nowhere in the constitution is there any "prohibition" against congress giving the inferior national courts original jurisdiction; such a restriction is not "insinuated." congress, then, can give the national circuit courts "original jurisdiction, in any case to which the appellate jurisdiction [of the supreme court] extends."[ ] at this particular period of our history this was, indeed, a tremendous expansion of the power of congress and the national judiciary. marshall flatly declares that congress can invest the inferior national courts with any jurisdiction whatsoever which the constitution does not prohibit. it marks another stage in the development of his constitutional principle that the national government not only has all powers expressly granted, but also all powers not expressly prohibited. for that is just what marshall's reasoning amounts to during these crucial years. no matter, continues the chief justice, how many questions, other than that affecting the constitution or laws, are involved in a case; if any national question "forms an ingredient of the original cause," congress can "give the circuit courts jurisdiction of that cause." the ohio bank case "is of this description." all the bank's powers, functions, and duties are conferred or imposed by its charter, and "that charter is a law of the united states.... can a being, thus constituted, have a case which does not arise literally, as well as substantially, under the law?"[ ] if the bank brings suits on a contract, the very first, the "foundation" question is, "has this legal entity a right to sue?... this depends on a law of the united states"--a fact that can never be waived. "whether it be in fact relied on or not, in the defense, it is still a part of the cause, and may be relied on."[ ] assume, as counsel for ohio assert, that "the case arises on the contract"; still, "the validity of the contract depends on a law of the united states.... the case arises emphatically under the law. the act of congress is its foundation.... the act itself is the first ingredient in the case; is its origin; is that from which every other part arises."[ ] marshall concedes that the state is directly interested in the suit and that, if the bank could have done so, it ought to have made the state a party. "but this was not in the power of the bank," because the eleventh amendment exempts a state from being sued in such a case. so the "very difficult question" arises, "whether, in such a case, the court may act upon the agents employed by the state, and on the property in their hands."[ ] just what will be the result if the national courts have not this power? "a denial of jurisdiction forbids all inquiry into the nature of the case," even of "cases perfectly clear in themselves; ... where the government is in the exercise of its best-established and most essential powers." if the national courts have no jurisdiction over the agents of a state, then those agents, under the "authority of a [state] law void in itself, because repugnant to the constitution, may arrest the execution of any law in the united states"--this they may do without any to say them nay.[ ] in this fashion marshall leads up to the serious national problem of the hour--the disposition of some states, revealed by threats and sometimes carried into execution, to interfere with the officers of the national government in the execution of the nation's laws. according to the ohio-virginia-kentucky idea, those officers "can obtain no protection from the judicial department of the government. the carrier of the mail, the collector of the revenue,[ ] the marshal of a district, the recruiting officer, may all be inhibited, under ruinous penalties, from the performance of their respective duties"; and not one of them can "avail himself of the preventive justice of the nation to protect him in the performance of his duties."[ ] addressing himself still more directly to those who were flouting the authority of the nation and preaching resistance to it, marshall uses stern language. what is the real meaning of the anti-national crusade; what the certain outcome of it? "each member of the union is capable, at its will, of attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs, while the nation stands naked, stripped of its defensive armor, and incapable of shielding its agent or executing its laws, otherwise than by proceedings which are to take place after the mischief is perpetrated, and which must often be ineffectual, from the inability of the agents to make compensation." once more marshall cites the case of a state "penalty on a revenue officer, for performing his duty," and in this way warns those who are demanding forcible obstruction of national law or authority, that they are striking at the nation and that the tribunals of the nation will shield the agents and officers of the nation: "if the courts of the united states cannot rightfully protect the agents who execute every law authorized by the constitution, from the direct action of state agents in the collecting of penalties, they cannot rightfully protect those who execute any law."[ ] here, in judicial language, was that rebuke of the spirit of nullification which andrew jackson was soon to repeat in words that rang throughout the land and which still quicken the pulses of americans. what is the great question before the court in the case of osborn _vs._ the bank of the united states; what, indeed, the great question before the country in the controversy between recalcitrant states and the imperiled nation? it is, says marshall, "whether the constitution of the united states has provided a tribunal which can peacefully and rightfully protect those who are employed in carrying into execution the laws of the union, from the attempts of a particular state to resist the execution of those laws." ohio asserts that "no preventive proceedings whatever," no action even to stay the hand of a state agent from seizing property, no suit to recover it from that agent, can be maintained because it is brought "substantially against the state itself, in violation of the th amendment of the constitution." is this true? "is a suit, brought against an individual, for any cause whatever, a suit against a state, in the sense of the constitution?"[ ] there are many cases in which a state may be vitally interested, as, for example, those involving grants of land by different states. if the mere fact that the state is "interested" in, or affected by, a suit makes the state a party, "what rule has the constitution given, by which this interest is to be measured?" no rule, of course! is then the court to decide the _degree_ of "interest" necessary to make a state a party? absurd! since the court would have to examine the "whole testimony of a cause, inquiring into, and deciding on, the extent of a state's interest, without having a right to exercise any jurisdiction in the case."[ ] at last he affirms that it may be "laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party _named in the record_." therefore, the eleventh amendment is, "of necessity, limited to those suits in which a state is a party _on the record_."[ ] in the ohio bank case, it follows that, "the state not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is, not one of jurisdiction, but whether" the officers and agents of ohio are "only nominal parties" or whether "the court ought to make a decree" against them.[ ] the answer to this question depends on the constitutionality of the ohio tax law. although that exact point was decided in m'culloch _vs._ maryland,[ ] "a revision of that opinion has been requested; and many considerations combine to induce a review of it."[ ] maryland and ohio claim the right to tax the national bank as an "individual concern ... having private trade and private profit for its great end and principal object." but this is not true; the bank is a "public corporation, created for public and national purposes"; the fact that it transacts "private as well as public business" does not destroy its character as the "great instrument by which the fiscal operations of the government are effected."[ ] obviously the bank cannot live unless it can do a general business as authorized by its charter. this being so, the right to transact such business "is necessary to the legitimate operations of the government, and was constitutionally and rightfully engrafted on the institution." indeed, the power of the bank to engage in general banking is "the vital part of the corporation; it is its soul." as well say that, while the human body must not be touched, the "vivifying principle" which "animates" it may be destroyed, as to say that the bank shall not be annihilated, but that the faculty by which it exists may be extinguished. for a state, then, to tax the bank's "faculties, its trade and occupation, is to tax the bank itself. to destroy or preserve the one, is to destroy or preserve the other."[ ] the mere fact that the national government created this corporation does not relieve it from "state authority"; but the "operations" of the bank "give its value to the currency in which all the transactions of the government are conducted." in short, the bank's business is "inseparably connected" with the "transactions" of the government. "its corporate character is merely an incident, which enables it to transact that business more beneficially."[ ] the judiciary "has no will, in any case"--no option but to execute the law as it stands. "judicial power, as contradistinguished from the power of the laws, has no existence. courts are the mere instruments of the law, and can will nothing." they can exercise no "discretion," except that of "discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature."[ ] this passage, so wholly unnecessary to the decision of the case or reasoning of the opinion, was inserted as an answer to the charges of judicial "arrogance" and "usurpation." in conclusion, marshall holds that the ohio law taxing the national bank's branches is unconstitutional and void; that the state is not a "party on the record"; that osborn, harper, currie, and sullivan are "incontestably liable for the full amount of the money taken out of the bank"; that this money may be pursued, since it "remained a distinct deposit"--in fact, was "kept untouched, in a trunk, by itself, ... to await the event of the pending suit respecting it."[ ] the judgment of the lower court that the money must be restored to the bank was right; but the judgment was wrong in charging interest against the state officers, since they "were restrained by the authority of the circuit court from using "the money, taken and held by them.[ ] so everybody having an immediate personal and practical interest in that particular case was made happy, and only the state rights theorists were discomfited. it was an exceedingly human situation, such as marshall, the politician, managed to create in his disposition of those cases that called for his highest judicial statesmanship. no matter how acutely he irritated party leaders and forced upon them unwelcome issues, marshall contrived to satisfy the persons immediately interested in most of the cases he decided. the chief justice himself was a theorist--one of the greatest theorists america has produced; but he also had an intimate acquaintance with human nature, and this knowledge he rightly used, in the desperate conflicts waged by him, to leave his antagonists disarmed of those weapons with which they were wont to fight. seemingly justice johnson dissented; but, burning with anger at south carolina's defiance of his action in the negro sailor case, he strengthened marshall's opinion in his very "dissent." this is so conspicuously true that it may well be thought that marshall inspired johnson's "disagreement" with his six brethren of the supreme court. whether the decision was "necessary or unnecessary originally," begins johnson, "a _state of things has now grown up, in some of the states_, which renders all the protection necessary, that the general government can give to this bank."[ ] he makes a powerful and really stirring appeal for the bank, but finally concludes, on technical grounds, that the supreme court has no jurisdiction.[ ] immediately the fight upon the supreme court was renewed in congress. on may , , representative robert p. letcher of kentucky rose in the house and proposed that the supreme court should be forbidden by law to hold invalid any provision of a state constitution or statute unless five out of the seven justices concurred, each to give his opinion "separately and distinctly," if the court held against the state.[ ] kentucky, said letcher, had been deprived of "equal rights and privileges." how? by "_construction_.... yes, construction! its mighty powers are irresistible; ... it creates new principles; ... it destroys laws long since established; and it is daily acquiring new strength."[ ] john forsyth of georgia proposed as a substitute to letcher's resolutions that, for the transaction of business, "a majority of the quorum" of the supreme court "shall be a majority of the whole court, including the chief justice." a long and animated debate[ ] ensued in which clay, webster, randolph, and philip p. barbour, among others, took part. david trimble of kentucky declared that "no nation ought to submit, to an umpire of minorities.[ ]... if less than three-fourths of the states cannot amend the constitution, less than three-fourths of the judges ought not to construe it"--for judicial constructions are "explanatory amendments" by which "the person and property of every citizen must stand or fall."[ ] so strong had been the sentiment for placing some restraint on the national judiciary that webster, astute politician and most resourceful friend of the supreme court, immediately offered a resolution that, in any cause before the supreme court where the validity of a state law or constitution is drawn in question "on the ground of repugnancy to the constitution, treaties, or laws, of the united states, no judgment shall be pronounced or rendered until a majority of all the justices ... legally competent to sit, ... shall concur in the opinion."[ ] but marshall's opinion in gibbons _vs._ ogden[ ] had now reached the whole country and, for the time being, changed popular hostility to the supreme court into public favor toward it. the assault in congress died away and webster allowed his soothing resolution to be forgotten. when the attack on the national judiciary was again renewed, the language of its adversaries was almost apologetic. footnotes: [ ] _annals_, th cong. st sess. - . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _annals_, th cong. st sess. . [ ] _ib._ . the justices of the supreme court followed the proceedings in congress with the interest and accuracy of politicians. (see, for example, story's comments on the missouri controversy, story to white, feb. , , story, i, .) [ ] _annals_, th cong. st sess. - . [ ] for instance, joshua cushman of massachusetts was sure that, instead of disunion, "the canadas, with new brunswick and nova scotia, allured by the wisdom and beneficence of our institutions, will stretch out their hands for an admission into this union. the floridas will become a willing victim. mexico will mingle her lustre with the federal constellation. south america ... will burn incense on our ... altar. the republic of the united states shall have dominion from sea to sea, ... from the river columbia to the ends of the earth. the american eagle ... will soar aloft to the stars of heaven." (_ib._ .) [ ] may , , _u.s. statutes at large_. this act, together with a supplementary act (may , , _ib._), is a vivid portrayal of a phase of the life of the national capital at that period. see especially section vi. [ ] lotteries had long been a favorite method of raising funds for public purposes. as a member of the virginia house of delegates, marshall had voted for many lottery bills. (see vol. ii, footnote , to , of this work.) for decades after the constitution was adopted, lotteries were considered to be both moral and useful. [ ] effective january , . [ ] wheaton, - . [ ] _ib._ - . [ ] william pinkney was at this time probably the highest paid lawyer in america. five years before he argued the case of cohens _vs._ virginia, his professional income was $ , annually (story to white, feb. , , story, i, ), more than four times as much as marshall ever received when leader of the richmond bar (see vol. ii, , of this work). david b. ogden, the other counsel for the cohens, was one of the most prominent and successful lawyers of new york. see warren, - . another interesting fact in this celebrated case is that the norfolk court fined the cohens the minimum allowed by the virginia statute. they could have been fined at least $ , $ for each offense--perhaps should have been fined that amount had the law been strictly observed. indeed, the virginia act permitted a fine to the extent of "the whole sum of money proposed to be raised by such lottery." ( wheaton, .) [ ] barbour declined a large fee offered him by the state. (grigsby: _virginia convention of - _.) [ ] wheaton, . [ ] _ib._ . [ ] _ib._ . [ ] wheaton, . for a better report of pinkney's speech see wheaton: _pinkney_, - . [ ] _ib._ . [ ] see _supra_, - . [ ] wheaton, . [ ] wheaton, . [ ] _ib._ . [ ] wheaton, . (italics the author's.) [ ] _ib._ . [ ] wheaton, - . (italics the author's.) [ ] see vol. ii, , of this work. [ ] wheaton, . [ ] _ib._ - . [ ] _ib._ . [ ] wheaton, - . [ ] see u.s. _vs._ peters, _supra_, _et seq._ [ ] wheaton, - . [ ] wheaton, . [ ] wheaton, - . [ ] wheaton, - . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ . [ ] see vol. iii, - , of this work. [ ] wheaton, - . [ ] _ib._ . [ ] wheaton, - . [ ] fairfax's devisee _vs._ hunter, _supra_, - . [ ] wheaton, . [ ] _ib._ . [ ] _ib._ - . [ ] wheaton, . [ ] _ib._ - . [ ] ambler: _ritchie_, . [ ] _enquirer_, may , , as quoted in _branch hist. papers_, june, , , . [ ] _enquirer_, may and may , , as quoted in _ib._ , . [ ] _enquirer_, may , , as quoted in _ib._ . [ ] _enquirer_, june , , as quoted in _ib._ . [ ] _branch hist. papers_, june, , . [ ] _ib._ - . [ ] _enquirer_, june , , as quoted in _branch hist. papers_, june, , - . [ ] _ib._ - . [ ] marshall to story, june , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] marshall refers to three papers published in the _enquirer_ of may and , and june , the first two signed "somers" and the third signed "fletcher of saltoun." it is impossible to discover who these writers were. their essays, although vicious, are so dull as not to be worth the reading, though jefferson thought them "luminous and striking." (jefferson to johnson, june , , _works_: ford, xii, , footnote.) "somers," however, is compelled to admit the irresistible appeal of marshall's personality. "superior talents and address will forever attract the homage of inferior minds." (_enquirer_, may , .) "the supreme court ... have rendered the constitution the sport of legal ingenuity.... its meaning is locked up from the profane vulgar, and distributed only by the high priests of the temple." (_ib._ may , .) "fletcher of saltoun" is intolerably verbose: "the victories ... of courts ... though bloodless, are generally decisive.... the progress of the judiciary, though slow, is steady and untiring as the foot of time." the people act as though hypnotized, he laments--"the powerful mind of the chief justice has put forth its strength, and we are quiet as if touched by the wand of enchantment;--we fall prostrate before his genius as though we had looked upon the dazzling brightness of the shield of astolfo.--triumphant indeed has been this most powerful effort of his extraordinary mind. his followers exult--those who doubted, have yielded; even the faithful are found wavering, and the unconvinced can find no opening in his armor of defense." this writer points out marshall's "abominable inconsistencies," but seems to be himself under the spell of the chief justice: "i mention not this to the disadvantage of the distinguished individual who has pronounced these conflicting opinions. no man can have a higher respect for the virtues of his character, or greater admiration of the powers of his mind." alas for the change that time works upon the human intellect! consider marshall, the young man, and marshall, the chief justice! "how little did he, at that early day, contemplate the possibility of his carrying the construction of the constitution to an extent so far beyond even what he then renounced!" [_sic._] thereupon "fletcher of saltoun" plunges into an ocean of words concerning hamilton's theories of government and marshall's application of them. he announces this essay to be the first of a series; but, luckily for everybody, this first effort exhausted him. apparently he, too, fell asleep under marshall's "wand," for nothing more came from his drowsy pen. (_ib._ june , .) [ ] marshall to story, july , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] jefferson to jarvis, sept. , , _works_: ford, xii, - . [ ] marshall to story, july , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] same to same, sept. , , _ib._ . [ ] marshall to story, july , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] marshall to story, july , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] taylor: _tyranny unmasked_, . [ ] this was madison's idea. see vol. i, , of this work. [ ] taylor: _tyranny unmasked_, . [ ] m'culloch _vs._ maryland. [ ] martin _vs._ hunter's lessee and cohens _vs._ virginia. [ ] cohens _vs._ virginia. [ ] taylor: _tyranny unmasked_, - . [ ] taylor: _tyranny unmasked_, - . taylor was the first to state fully most of the arguments since used by the opponents of protective tariffs. [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] jefferson to thweat, jan. , , _works_: ford, xii, - . wirt, though a republican, asserted that "the functions to be performed by the supreme court ... are among the most difficult and perilous which are to be performed under the constitution. they demand the loftiest range of talents and learning and a soul of roman purity and firmness. the questions which come before them frequently involve the fate of the constitution, the happiness of the whole nation." (wirt to monroe, may , , kennedy, ii, .) wirt, in this letter, was urging the appointment of kent to the supreme bench, notwithstanding the federalism of the new york chancellor. "federal politics are no way dangerous on the bench of the supreme court," adds wirt. (_ib._ .) [ ] his strange failure to come to roane's support in the fight, over the judiciary amendments to the constitution, in the virginia legislature during the session of - . (see _infra_, .) [ ] jefferson to johnson, june , , _works_: ford, xii, footnote to - . [ ] jefferson to livingston, march , , hunt: _livingston_, - . [ ] _annals_, th cong. st sess. . [ ] roane to thweat, dec. , , jefferson mss. lib. cong. [ ] _annals_, th cong. st sess. - . [ ] _ib._ - . [ ] _annals_, th cong. st sess. - . [ ] _ib._ . [ ] _ib._ - . [ ] _annals_, th cong. st sess. - . [ ] webster to story, jan. , , _priv. corres._: webster, i, . [ ] ordinance of separation, . [ ] act of feb. , _laws of kentucky_, : littell, - . see also act of feb. (_ib._ - ), apparently on a different subject; and, especially, act of march (_ib._ - ). compare act of (_ib._ - ); and act of dec. , (_ib._ - ). see also in _ib._ general land laws. [ ] wheaton, - . (italics the author's.) [ ] _ib._ . [ ] _annals_, th cong. st sess. - . [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] georgia, fletcher _vs._ peck (see vol. iii, chap, x, of this work); pennsylvania, u.s. _vs._ peters (_supra_, chap. i); new jersey, new jersey _vs._ wilson (_supra_, chap. v); new hampshire, dartmouth college _vs._ woodward (_supra_, chap. v); new york, sturges _vs._ crowninshield (_supra_, chap. iv); maryland, m'culloch _vs._ maryland (_supra_, chap. vi); virginia, cohens _vs._ virginia (_supra_, chap. vii); kentucky, green _vs._ biddle (_supra_, this chapter). [ ] _annals_, th cong. st sess. . [ ] niles, xxi, . [ ] _ib._ the resolutions, offered by john wayles eppes, jefferson's son-in-law, "_instructed_" virginia's senators and requested her representatives in congress to "procure" these amendments to the constitution: . the judicial power shall not extend to any power "not expressly granted ... or _absolutely_ necessary for carrying the same into execution." . neither the national government nor any department thereof shall have power to bind "_conclusively_" the states in conflicts between nation and state. . the judicial power of the nation shall never include "_any_ case in which a state shall be a party," except controversies between states; nor cases involving the rights of a state "to which such a state shall ask to become a party." . no appeal to any national court shall be had from the decisions of any state court. . laws applying to the district of columbia or the territories, which conflict with state laws, shall not be enforceable within state jurisdiction. (niles, xxi, .) [ ] _annals_, th cong. st sess. . [ ] _ib._, th cong. st sess. . [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] _ib._ . [ ] webster, from the judiciary committee, which he seems to have dominated, merely reported that wickliffe's proposed reform was "not expedient." (_annals_, th cong. st sess. .) [ ] march to , , inclusive. [ ] wheaton, . [ ] wheaton, . johnson dissented. (_ib._ - .) todd of kentucky was absent because of illness, a circumstance that greatly worried story, who wrote the sick justice: "we have missed you exceedingly during the term and particularly in the kentucky causes.... we have had ... tough business" and "wanted your firm vote on many occasions." (story to todd, march , , story, i, - .) [ ] niles, xxv, - . [ ] _ib._ . [ ] niles, xxv, . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ xxix, - . [ ] _ib._ xxv, ; and see elkison _vs._ deliesseline, _federal cases_, . [ ] niles, xxv, - . [ ] _ib._ ; and see especially _ib._ xxvii, - . [ ] marshall to story, sept. , , story mss. mass. hist. soc. [ ] niles, xxvii, . the senate of south carolina resolved by a vote of six to one that the duty of the state to "guard against insubordination or insurrection among our colored population ... is paramount to all _laws_, all _treaties_, all _constitutions_ ... and will never, by this state, be renounced, compromised, controlled or participated with any power whatever." johnson's decision is viewed as "an unconstitutional interference" with south carolina's slave system, and the state "will, on this subject, ... make common cause with ... other southern states similarly circumstanced in this respect." (niles, xxvii, .) the house rejected the savage language of the senate and adopted resolutions moderately worded, but expressing the same determination. (_ib._ .) [ ] for the facts in osborn _vs._ the bank of the united states, see _supra_, - . [ ] see, for instance, speech of john carter of south carolina. (_annals_, th cong. st sess. ; and upon this subject, generally, see _infra_, chap. x.) [ ] who appeared for ohio on the first argument is not disclosed by the records. [ ] wheaton, - . [ ] wheaton, - . [ ] _ib._ - . [ ] wheaton, . [ ] _ib._ - . [ ] _ib._ - . [ ] wheaton, - . [ ] _ib._ . [ ] marshall here refers to threats to resist forcibly the execution of the tariff of . see _infra_, - . [ ] wheaton, - . [ ] wheaton, - . [ ] wheaton, . [ ] _ib._ - . [ ] wheaton, . (italics the author's.) [ ] _ib._ . [ ] see _supra_, chap, vi. [ ] wheaton, . [ ] _ib._ - . [ ] wheaton, - . [ ] _ib._ - . [ ] wheaton, . [ ] _ib._ - . [ ] _ib._ . [ ] wheaton, - . (italics the author's.) in reality johnson is here referring to the threats of physical resistance to the proposed tariff law of . (see _infra_, chap. x.) [ ] _ib._ - . [ ] _annals_, th cong. st sess. . [ ] _ib._ - . [ ] _ib._ . this debate was most scantily reported. webster wrote of it: "we had the supreme court before us yesterday.... a debate arose which lasted all day. cohens _v._ virginia, green and biddle, &c. were all discussed.... the proposition for the concurrence of five judges will not prevail." (webster to story, may , , _priv. corres._: webster, i, .) [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] _annals_, th cong. st sess. . throughout this session webster appears to have been much disturbed. for example, as early as april , , he writes story: "i am exhausted. when i look in the glass, i think of our old new england saying, 'as thin as a shad.' i have not vigor enough left, either mental or physical, to try an action for assault and battery.... i shall call up some bills reported by our [judiciary] committee.... the gentlemen of the west will propose a clause, requiring the assent of a majority of all the judges to a judgment, which pronounces a state law void, as being in violation of the constitution or laws of the united states. do you see any great evil in such a provision? judge todd told me he thought it would give great satisfaction in the west. in what phraseology would you make such a provision?" (webster to story, april , , _priv. corres._: webster, i, - .) [ ] see next chapter. chapter viii commerce made free marshall's decision involved in its consequences the existence of the union. (john f. dillon.) opposing rights to the same thing cannot exist under the constitution of our country. (chancellor nathan sanford.) sir, we shall keep on the windward side of treason, but we must combine to resist these encroachments,--and that effectually. (john randolph.) that uncommon man who presides over the supreme court is, in all human probability, the ablest judge now sitting on any judicial bench in the world. (martin van buren.) at six o'clock in the evening of august , , a curious assembly of curious people was gathered at a certain spot on the banks of the seine in paris. they were gazing at a strange object on the river--the model of an invention which was to affect the destinies of the world more powerfully and permanently than the victories and defeats of all the armies that, for a dozen years thereafter, fought over the ancient battle-fields of europe from moscow to madrid. the occasion was the first public exhibition of robert fulton's steamboat. france was once more gathering her strength for the war which, in may, great britain had declared upon her; and bonaparte, as first consul, was in camp at boulogne. fulton had been experimenting for a long time, and the public exhibition now in progress would have been made months earlier had not an accident delayed it. his activities had been reported to bonaparte, who promptly ordered members of the institute[ ] to attend the exhibition and report to him on the practicability of the invention, which, he wrote, and in italics, "_may change the face of the world_."[ ] prominent, therefore, among the throng were these learned men, doubting and skeptical as mere learning usually is. more conspicuous than bonaparte's scientific agents, and as interested and confident as they were indifferent or scornful, was a tall man of distinguished bearing, whose powerful features, bold eyes, aggressive chin, and acquisitive nose indicated a character of unyielding determination, persistence, and hopefulness. this was the american minister to france, robert r. livingston of new york, who, three months before, had conducted the louisiana purchase. by his side was fulton himself, a man of medium height, slender and erect, whose intellectual brow and large, speculative eyes indicated the dreamer and contriver. the french scientists were not impressed, and the french government dropped consideration of the subject. but fulton and livingston were greatly encouraged. an engine designed by fulton was ordered from a birmingham manufacturer and, when constructed, was shipped to america. for many years inventive minds had been at work on the problem of steam navigation. because of the cost and difficulties of transportation, and the ever-growing demand for means of cheap and easy water carriage, the most active and fruitful efforts to solve the problem had been made in america.[ ] livingston, then chancellor of new york, had taken a deep and practical interest in the subject.[ ] he had constructed a boat on the hudson, and was so confident of success that, five years before the paris experiments of fulton, he had procured from the new york legislature an act giving him the exclusive right for twenty years to navigate by steamboats the streams and other waters of the state, provided that, within a year, he should build a boat making four miles an hour against the current of the hudson.[ ] the only difficulty livingston encountered in securing the passage of this act was the amused incredulity of the legislators. the bill "was a standing subject of ridicule" and had to run the gamut of jokes, jeers, and raillery.[ ] the legislators did not object to granting a monopoly on new york waters for a century or for a thousand years,[ ] provided the navigation was by steam; but they required, in payment to themselves, the price of derision and laughter. livingston failed to meet in time the conditions of the steamboat act, but, with livingston tenacity,[ ] persevered in his efforts to build a practicable vessel. when, in , he arrived in paris as american minister, his mind was almost as full of the project as of his delicate and serious official tasks. robert fulton was then living in the french capital, working on his models of steamboats, submarines, and torpedoes, and striving to interest napoleon in his inventions.[ ] livingston and fulton soon met; a mutual admiration, trust, and friendship followed and a partnership was formed.[ ] livingston had left his interests in the hands of an alert and capable agent, nicholas j. roosevelt, who, in , had no difficulty in securing from the now hilarious new york legislature an extension of livingston's monopoly for twenty years upon the same terms as the first.[ ] livingston resigned his office and returned home. within a year fulton joined his partner. the grant of was forfeited like the preceding one, because its conditions had not been complied with in time, and another act was passed by the legislature reviving the grant and extending it for two years.[ ] thus encouraged and secured, fulton and livingston put forth every effort, and on monday, august , , four years and eight days after the dramatic exhibition on the river seine in paris, the north river,[ ] the first successful steamboat, made her voyage up the hudson from new york to albany[ ] and the success of the great enterprise was assured. on april , , a final law was enacted by the new york legislature. the period of ridicule had passed; the members of that body now voted with serious knowledge of the possibilities of steam navigation. the new act provided that, for each new boat "established" on new york waters by livingston and fulton and their associates, they should be "entitled to five years prolongation of their grant _or contract_ with this state," the "whole term" of their monopoly not to exceed thirty years. all other persons were forbidden to navigate new york waters by steam craft without a license from livingston and fulton; and any unlicensed vessel, "together with the engine, tackle and apparel thereof," should be forfeited to them.[ ] obedient to "the great god, success," the public became as enthusiastic and friendly as it had been frigid and hostile and eagerly patronized this pleasant, cheap, and expeditious method of travel. the profits quickly justified the faith and perseverance of livingston and fulton. soon three boats were running between new york and albany. the fare each way was seven dollars and proportionate charges were made for intermediate landings, of which there were eleven.[ ] immediately the monopoly began operating steam ferryboats between new york city and new jersey.[ ] having such solid reason for optimism, livingston and fulton, with prudent foresight, leaped half a continent and placed steamboats on the mississippi, the traffic of which they planned to control by securing from the legislature of orleans territory the same exclusive privileges for steam navigation upon louisiana waters, which included the mouth of the mississippi,[ ] that new york had granted upon the waters of that state. nicholas j. roosevelt was put in charge of this enterprise, and in an incredibly short time the steamboat new orleans was ploughing the turgid and treacherous currents of the great river.[ ] it was not long, however, before troubles came--the first from new jersey. enterprising citizens of that state also built steamboats; but the owners of any vessel entering new york waters, even though acting merely as a ferry between hoboken and new york city, must procure a license from livingston and fulton or forfeit their boats. from discontent at this condition the feelings of the people rose to resentment and then to anger. at last they determined to retaliate, and early in the new jersey legislature passed an act authorizing the owner of any boat seized under the new york law, in turn to capture and hold any steam-propelled craft belonging "in part or in whole" to any citizen of new york; "which boat ... shall be forfeited ... to the ... owner ... of such ... boats which may have been seized" under the new york law.[ ] new york was not slow to reply. her legislature was in session when that of new jersey thus declared commercial war. an act was speedily passed providing that livingston and fulton might enforce at law or in equity the forfeiture of boats unlicensed by them, "as if the same had been tortiously and wrongfully taken out of their possession"; and that when such a suit was brought the defendants should be enjoined from running the boat or "removing the same or any part thereof out of the jurisdiction of the court."[ ] connecticut forbade any vessel licensed by livingston and fulton from entering connecticut waters.[ ] the opposition to the new york steamboat monopoly was not, however, confined to other states. citizens of new york defied it and began to run steam vessels on the hudson.[ ] james van ingen and associates were the first thus to challenge the exclusive "contract," as the new york law termed the franchise which the state had granted to livingston and fulton. suit was brought against van ingen in the united states circuit court in new york, praying that livingston and fulton be "quieted in the possession," or in the exclusive right, to navigate the hudson secured to them by two patents.[ ] the bill was dismissed for want of jurisdiction. thus far the litigation was exclusively a state controversy. upon the face of the record the national element did not appear; yet it was the governing issue raised by the dispute. immediately livingston and fulton sued van ingen and associates in the new york court of chancery, praying that they be enjoined from operating their boats. in an opinion of great ability and almost meticulous learning, chancellor john lansing denied the injunction; he was careful, however, not to base his decision on a violation of the commerce clause of the national constitution by the new york steamboat monopoly act. he merely held that act to be invalid because it was a denial of a natural right of all citizens alike to the free navigation of the waters of the state. in such fashion the national question was still evaded. the court of errors[ ] reversed the decree of chancellor lansing. justice yates and justice thompson delivered state rights opinions that would have done credit to roane.[ ] at this point the national consideration develops. the opinion of james kent, then chief justice, was more moderate in its denial of national power over the subject. indeed, kent appears to have anticipated that the supreme court would reverse him. nevertheless, his opinion was the source of all the arguments thereafter used in defense of the steamboat monopoly. because of this fact; because of kent's eminence as a jurist; and because marshall so crushingly answered his arguments, a _précis_ of them must be given. it should be borne in mind that kent was defending a law which, in a sense, was his own child; as a member of the new york council of revision, he had passed upon and approved it before its passage. there could have been "no very obvious constitutional objection" to the steamboat monopoly act, began kent, "or it would not so repeatedly have escaped the notice of the several branches of the government[ ] when these acts were under consideration."[ ] there had been five acts all told;[ ] that of would surely have attracted attention since it was the first to be passed on the subject after the national constitution was adopted. it amounted to "a legislative exposition" of state powers under the new national government. members of the new york legislature of had also been members of the state convention that ratified the constitution, and "were masters of all the critical discussions" attending the adoption of that instrument. this was peculiarly true of that "exalted character," john jay, who was governor at that time; and "who was distinguished, as well in the _council of revision_, as elsewhere, for the scrupulous care and profound attention with which he examined every question of a constitutional nature."[ ] the act of was passed after the validity of the previous ones had been challenged and "was, therefore, equivalent to a declaratory opinion of high authority, that the former laws were valid and constitutional."[ ] the people of new york had not "alienated" to the national government the power to grant exclusive privileges. this was proved by the charters granted by the state to banks, ferries, markets, canal and bridge companies. "the legislative power in a _single, independent government_, extends to every proper object of power, and is limited only by its own constitutional provisions, or by the fundamental principles of all government, and the unalienable rights of mankind."[ ] in what respect did the steamboat monopoly violate any of these restrictions? in no respect. "it interfered with no man's property." everybody could freely use the waters of new york in the same manner that he had done before. so there was "no violation of first principles."[ ] neither did the new york steamboat acts violate the national constitution. state and nation are "supreme within their respective constitutional spheres." it is true that when national and state laws "come directly in contact, as when they are aimed at each other," those of the state "must yield"; but state legislatures cannot all the time be on the watch for some possible future collision. the only "safe rule of construction" is this: "if any given power was originally vested in this state, if it has not been exclusively ceded to congress, or if the exercise of it has not been prohibited to the states, we may then go on in the exercise of the power until it comes practically in collision with the actual exercise of some congressional power."[ ] the power given congress to regulate commerce is not, "in express terms, exclusive, and the only prohibition upon the states" in this regard concerns the making of treaties and the laying of tonnage import or export duties. all commerce within a state is "exclusively" within the power of that state.[ ] therefore, new york's steamboat grant to livingston and fulton is valid. it conflicts with no act of congress, according to kent, who cannot "perceive any power which ... can lawfully carry to that extent." if congress has any control whatever over new york waters, it is concurrent with that of the state, and even then, "no further than may be incidental and requisite to the due regulation of commerce between the states, and with foreign nations."[ ] kent then plunges into an appalling mass of authorities, in dealing with which he delighted as much as marshall recoiled from the thought of them.[ ] so livingston and fulton's steamboat monopoly was upheld.[ ] but what were new york waters and what were new jersey waters? confusion upon this question threatened to prevent the monopoly from gathering fat profits from new jersey traffic. aaron ogden,[ ] who had purchased the privilege of running ferryboats from new york to certain points on the new jersey shore, combined with one thomas gibbons, who operated a boat between new jersey landings, to exchange passengers at elizabethtown point in the latter state. gibbons had not secured the permission of the new york steamboat monopoly to navigate new york waters. by his partnership with ogden he, in reality, carried passengers from new york to various points in new jersey. in fact, ogden and gibbons had a common traffic agent in new york who booked passengers for routes, to travel which required the service of the boats of both ogden and gibbons. so ran the allegations of the bill for an injunction against the offending carriers filed in the new york court of chancery by the steamboat monopoly in the spring of . ogden answered that his license applied only to waters "_exclusively_ within the state of new-york," and that the waters lying between the new jersey ports "are within the jurisdiction of _new jersey_." gibbons admitted that he ran a boat between new jersey ports under "a coasting _license_" from the national government. he denied, however, that the monopoly had "any exclusive right" to run steamboats from new york to new jersey. both ogden and gibbons disclaimed that they ran boats in combination, or by agreement with each other.[ ] kent, now chancellor, declared that a new york statute[ ] asserted jurisdiction of the state over "the whole of the river hudson, southward of the northern boundary of the city of new-york, and the whole of the bay between staten island and long or nassau island." he refused to enjoin ogden because he operated his boat under license of the steamboat monopoly; but did enjoin gibbons "from navigating the waters in the bay of new-york, or hudson river, between staten island and powles hook."[ ] ogden was content, but gibbons, thoroughly angered by the harshness of the steamboat monopoly and by the decree of chancellor kent, began to run boats regularly between new york and new jersey in direct competition with ogden.[ ] to stop his former associate, now his rival, ogden applied to chancellor kent for an injunction. as in the preceding case, gibbons again set up his license from the national government, asserting that by virtue of this license he was entitled to run his boats "in the coasting trade between ports of the same state, or of different states," and could not be excluded from such traffic "by any law or grant of any particular state, on any pretence to an exclusive right to navigate the waters of any particular state by steam-boats." moreover, pleaded gibbons, the representatives of livingston and fulton had issued to messrs. d. d. tompkins, adam brown, and noah brown a license to navigate new york bay; and this license had been assigned to gibbons.[ ] kent held that the act of congress,[ ] concerning the enrollment and licensing of vessels for the coasting trade, conferred no right "incompatible with an exclusive right in livingston and fulton" to navigate new york waters.[ ] the validity of the steamboat monopoly laws had been settled by the decision of the court of errors in livingston _vs._ van ingen.[ ] if a national law gave to all vessels, "duly licensed" by the national government, the right to navigate all waters "within the several states," despite state laws to the contrary, the national statute would "overrule and set aside" the incompatible legislation of the states. "the only question that could arise in such a case, would be, whether the [national] law was constitutional." but that was not the situation; "there is no collision between the act of congress and the acts of this state, creating the steam-boat monopoly." at least "some judicial decision of the supreme power of the union, acting upon those laws, in direct collision and conflict" with them, is necessary before the courts of new york "can retire from the support and defence of them."[ ] undismayed, gibbons lost no time in appealing to the new york court of errors, and in january, , justice jonas platt delivered the opinion of that tribunal. immediately after the decision in livingston _vs._ van ingen, he said, many, who formerly had resisted the steamboat monopoly law, acquiesced in the judgment of the state's highest court and secured licenses from livingston and fulton. ogden was one of these. the court of errors rejected gibbons's defense, followed chancellor kent's opinion, and affirmed his decree.[ ] [illustration: _john marshall_ _from a painting by j. b. martin, in the university of virginia_] thus did the famous case of gibbons _vs._ ogden reach the supreme court of the united states; thus was john marshall given the opportunity to deliver the last but one of his greatest nation-making opinions--an opinion which, in the judgment of most lawyers and jurists, is second only to that in m'culloch _vs._ maryland in ability and statesmanship. by some, indeed, it is thought to be superior even to that state paper. the supreme court, the bar, and the public anticipated an homeric combat of legal warriors when the case was argued, since, for the first time, the hitherto unrivaled pinkney was to meet the new legal champion, daniel webster, who had won his right to that title by his efforts in the dartmouth college case and in m'culloch _vs._ maryland.[ ] it was expected that the steamboat monopoly argument would be made at the february session of , and story wrote to a friend that "the arguments will be very splendid."[ ] but, on march , , the case was dismissed because the record did not show that there was a final decree in the court "from which said appeal was made."[ ] on january , , the case was again docketed, but was continued at each term of the supreme court thereafter until february, . thus, nearly four years elapsed from the time the appeal was first taken until argument was heard.[ ] by the time the question was at last submitted to marshall, transportation had become the most pressing and important of all economic and social problems confronting the nation, excepting only that of slavery; nor was any so unsettled, so confused. localism had joined hands with monopoly--at the most widely separated points in the republic, states had granted "exclusive privileges" to the navigation of "state waters." at the time that the last steamboat grant was made by new york to livingston and fulton, in , the legislature of the territory of orleans passed, and governor claiborne approved, an act bestowing upon the new york monopoly the same exclusive privileges conferred by the new york statute. this had been done soon after nicholas j. roosevelt had appeared in new orleans on the bridge of the first steamboat to navigate the mississippi. whoever operated any steam vessel upon louisiana waters without license from livingston and fulton must pay them $ for each offense, and also forfeit the boat and equipment.[ ] the expectations of livingston and fulton of a monopoly of the traffic of that master waterway were thus fulfilled. when, a few months later, louisiana was admitted to the union, the new state found herself bound by this monopoly from which, however, it does not appear that she wished to be released. thus livingston and fulton held the keys to the two american ports into which poured the greatest volume of domestic products for export, and from which the largest quantity of foreign trade found its way into the interior. three years later georgia granted to samuel howard of savannah a rigid monopoly to transport merchandise upon georgia waters in all vessels "or rafts" towed by steam craft.[ ] anybody who infringed howard's monopoly was to forfeit $ for each offense, as well as the boat and its machinery. the following year massachusetts granted to john langdon sullivan the "exclusive rights to the connecticut river within this commonwealth for the use of his patent steam towboats for ... twenty-eight years."[ ] a few months afterwards new hampshire made a like grant to sullivan.[ ] about the same time vermont granted a monopoly of navigation in the part of lake champlain under her jurisdiction.[ ] these are some examples of the general tendency of states and the promoters of steam navigation to make commerce pay tribute to monopoly by the exercise of the sovereignty of states over waters within their jurisdiction. retaliation of state upon state again appeared--and in the same fashion that wrecked the states under the confederation.[ ] but this ancient monopolistic process could not keep pace with the prodigious development of water travel and transportation by steamboat. on every river, on every lake, glided these steam-driven vessels. their hoarse whistles startled the thinly settled wilderness; or, at the landings on big rivers flowing through more thickly peopled regions, brought groups of onlookers to witness what then were considered to be marvels of progress.[ ] by seventy-nine steamboats were running on the ohio between pittsburgh and st. louis, most of them from to tons burden. pittsburgh, cincinnati, and louisville were the chief places where these boats were built, though many were constructed at smaller towns along the shore.[ ] they carried throngs of passengers and an ever-swelling volume of freight. tobacco, pork, beef, flour, corn-meal, whiskey--all the products of the west[ ] were borne to market on the decks of steamboats which, on the return voyage, were piled high with manufactured goods. river navigation was impeded, however, by snags, sandbars, and shallows, while the traffic overland was made difficult, dangerous, and expensive by atrocious roads. next to the frantic desire to unburden themselves of debt by "relief laws" and other forms of legislative contract-breaking, the thought uppermost in the minds of the people was the improvement of means of communication and transportation. this popular demand was voiced in the second session of the fourteenth congress. on december , , john c. calhoun brought the subject before the house.[ ] four days later he reported a bill to devote to internal improvements "the bonus of the national bank and the united states's share of its dividends."[ ] it met strenuous opposition, chiefly on the ground that congress had no constitutional power to expend money for such purposes.[ ] an able report was made to the house based on the report of secretary gallatin in . the vital importance of "internal navigation" was pointed out,[ ] and the bill finally passed.[ ] the last official act of president james madison was the veto of this first bill for internal improvements passed by congress. the day before his second term as president expired, he returned the bill with the reasons for his disapproval of it. he did this, he explained, because of the "insuperable difficulty ... in reconciling the bill with the constitution." the power "proposed to be exercised by the bill" was not "enumerated," nor could it be deduced "by any just interpretation" from the power of congress "to make laws necessary and proper" for the execution of powers expressly conferred on congress. "the power to regulate commerce among the several states can not include a power to construct roads and canals, and to improve the navigation of water courses." nor did the "'common defense and general welfare'" clause justify congress in passing such a measure.[ ] but not thus was the popular demand to be silenced. hardly had the next session convened when the subject was again taken up.[ ] on december , , henry st. george tucker of virginia, chairman of the select committee appointed to investigate the subject, submitted an uncommonly able report ending with a resolution that the bank bonus and dividends be expended on internal improvements "with the assent of the states."[ ] for two weeks this resolution was debated.[ ] every phase of the power of congress to regulate commerce was examined. and so the controversy went on year after year. three weeks before the argument of gibbons _vs._ ogden came on in the supreme court, a debate began in congress over a bill to appropriate funds for surveying roads and canals, and continued during all the time that the court was considering the case. it was going on, indeed, when marshall delivered his opinion and lasted for several weeks. once more the respective powers of state and nation over internal improvements, over commerce, over almost everything, were threshed out. as was usual with him, john randolph supplied the climax of the debate. three days previous to the argument of gibbons _vs._ ogden before marshall and his associates, randolph arose in the house and delivered a speech which, even for him, was unusually brilliant. in it he revealed the intimate connection between the slave power and opposition to the national control of commerce. randolph conceded the progress made by nationalism through the extension of the doctrine of implied powers. the prophecy of patrick henry as to the extinction of the sovereignty, rights, and powers of the state had been largely realized, he said. the promises of the nationalists, made in order to secure the ratification of the constitution, and without which pledges it never would have been adopted, had been contemptuously broken, he intimated. he might well have made the charge outright, for it was entirely true. randolph laid upon madison much of the blame for the advancement of implied powers; and he arraigned that always weak and now ageing man in an effective passage of contemptuous eloquence.[ ] when, in the election of , continued randolph, the federalists were overthrown, and "the construction of the constitution according to the hamiltonian version" was repudiated, "did we at that day dream, ... that a new sect would arise after them, which would so far transcend alexander hamilton and his disciples, as they outwent thomas jefferson, james madison, and john taylor of caroline? this is the deplorable fact: such is now the actual state of things in this land; ... it speaks to the senses, so that every one may understand it."[ ] and to what will all this lead? to this, at last: "if congress possesses the power to do what is proposed by this bill [appropriate money to survey roads and canals], ... they may _emancipate every slave in the united states_[ ]--and with stronger color of reason than they can exercise the power now contended for." let southern men beware! if "a coalition of knavery and fanaticism ... be got up on this floor, i ask gentlemen, who stand in the same predicament as i do, to look well to what they are now doing--to the colossal power with which they are now arming this government."[ ] and why, at the present moment, insist on this "new construction of the constitution?... are there not already causes enough of jealousy and discord existing among us?... is this a time to increase those jealousies between different quarters of the country already sufficiently apparent?" in closing, randolph all but threatened armed rebellion: "should this bill pass, one more measure only requires to be consummated; and then we, who belong to that unfortunate portion of this confederacy which is south of mason and dixon's line, ... have to make up our mind to perish ... or we must resort to the measures which we first opposed to british aggressions and usurpations--to maintain that independence which the valor of our fathers acquired, but which is every day sliding from under our feet.... sir, this is a state of things that cannot last.... we shall keep on the windward side of treason--but we must combine to resist, and that effectually, these encroachments."[ ] moreover, congress and the country, particularly the south, were deeply stirred by the tariff question; in the debate then impending over the tariff of , nationalism and marshall's theory of constitutional construction were to be denounced in language almost as strong as that of randolph on internal improvements.[ ] the chief justice and his associates were keenly alive to this agitation; they well knew that the principles to be upheld in gibbons _vs._ ogden would affect other interests and concern other issues than those directly involved in that case. so it was, then, when the steamboat monopoly case came on for hearing, that two groups of interests were in conflict. state sovereignty standing for exclusive privileges as chief combatant, with free trade and slavery as brothers in arms, confronted nationalism, standing at that moment for the power of the nation over all commerce as the principal combatant, with a protective tariff and emancipation as its most effective allies. fate had interwoven subjects that neither logically nor naturally had any kinship.[ ] the specific question to be decided was whether the new york steamboat monopoly laws violated that provision of the national constitution which bestows on congress the "power to regulate commerce among the several states." the absolute necessity of a general supervision of commerce was the sole cause of the convention at annapolis, maryland, in , which resulted in the constitutional convention in philadelphia the following year.[ ] since the adoption of uniform commercial regulations was the prime object of the convention, there was no disagreement as to, or discussion of, the propriety of giving congress full power over that subject. every draft except one[ ] of the committee of detail, the committee of style, and the notes taken by members contained some reference to a clause to that effect.[ ] the earliest exposition of the commerce clause of the constitution by any eminent national authority, therefore, came from john marshall. in his opinion in gibbons _vs._ ogden he spoke the first and last authoritative word on that crucial subject. pinkney was fatally ill when the supreme court convened in and died during that session. his death was a heavy blow to the steamboat monopoly, and his loss was not easily made good. it was finally decided to employ thomas j. oakley, attorney-general of new york, a cold, clear reasoner, and carefully trained lawyer, but lacking imagination, warmth, or breadth of vision.[ ] he was not an adequate substitute for the masterful and glowing pinkney. when on february , , the argument at last was begun, the interest in the case was so great that, although the incomparable pinkney was gone, the court-room could hold but a small part of those who wished to hear that brilliant legal debate. thomas addis emmet, whose "whole soul" was in the case, appeared for the steamboat monopoly and made in its behalf his last great argument. with him came oakley, who was expected to perform some marvelous intellectual feat, his want of attractive qualities of speech having enhanced his reputation as a thinker. wirt reported that he was "said to be one of the first logicians of the age."[ ] gibbons was represented by webster who, says wirt, "is as ambitious as cæsar," and "will not be outdone by any man, if it is within the compass of his power to avoid it."[ ] wirt appeared with webster against the new york monopoly. the argument was opened by webster; and never in congress or court had that surprising man prepared so carefully--and never so successfully.[ ] of all his legal arguments, that in the steamboat case is incontestably supreme. and, as far as the assistance of associate counsel was concerned, webster's address, unlike that in the dartmouth college case, was all his own. it is true that every point he made had been repeated many times in the congressional debates over internal improvements, or before the new york courts in the steamboat litigation. but these facts do not detract from the credit that is rightfully webster's for his tremendous argument in gibbons _vs._ ogden. he began by admissions--a dangerous method and one which only a man of highest power can safely employ. the steamboat monopoly law had been "deliberately re-enacted," he said, and afterwards had the "sanction" of various new york courts," than which there were few, if any, in the country, more justly entitled to respect and deference." therefore he must, acknowledged webster, "make out a clear case" if he hoped to win.[ ] what was the state of the country with respect to transportation? everybody knew that the use of steamboats had become general; everywhere they plied over rivers and bays which often formed the divisions between states. it was inevitable that the regulations of such states should be "hostile" to one another. witness the antagonistic laws of new york, new jersey, and connecticut. surely all these warring statutes were not "consistent with the laws and constitution of the united states." if any one of them were valid, would anybody "point out where the state right stopped?"[ ] webster carefully described the new york steamboat monopoly laws, the rights they conferred, and the prohibitions they inflicted.[ ] he contended, among other things, that these statutes violated the national constitution. "the power of congress to regulate commerce was complete and entire," said webster, "and to a certain extent necessarily exclusive."[ ] it was well known that the "immediate" reason and "prevailing motive" for adopting the constitution was to "rescue" commerce "from the embarrassing and destructive consequences resulting from the legislation of so many different states, and to place it under the protection of a uniform law."[ ] the paramount object of establishing the present government was "to benefit and improve" trade. this, said webster, was proved by the undisputed history of the period preceding the constitution.[ ] what commerce is to be regulated by congress? not that of the several states, but that of the nation as a "unit." therefore, the regulation of it "must necessarily be complete, entire and uniform. its character was to be described in the flag which waved over it, _e pluribus unum_." of consequence, congressional regulation of commerce must be "exclusive." individual states cannot "assert a right of concurrent legislation, ... without manifest encroachment and confusion."[ ] if new york can grant a monopoly over new york bay, so can virginia over the entrance of the chesapeake, so can massachusetts over the bay bearing the name and under the jurisdiction of that state. worse still, every state may grant "an exclusive right of entry of vessels into her ports."[ ] oakley, emmet, and wirt exhausted the learning then extant on every point involved in the controversy. not even pinkney at his best ever was more thorough than was emmet in his superb argument in gibbons _vs._ ogden.[ ] the small information possessed by the most careful and thorough lawyers at that time concerning important decisions in the circuit courts of the united states, even when rendered by the chief justice himself, is startlingly revealed in all these arguments. only four years previously, marshall, at richmond, had rendered an opinion in which he asserted the power of congress over commerce as emphatically as webster or wirt now insisted upon it. this opinion would have greatly strengthened their arguments, and undoubtedly they would have cited it had they known of it. but neither wirt nor webster made the slightest reference to the case of the brig wilson _vs._ the united states, decided during the may term, . one offense charged in the libel of that vessel by the national government was, that she had brought into virginia certain negroes in violation of the laws of that state and in contravention of the act of congress forbidding the importation of negroes into states whose laws prohibited their admission. was this act of congress constitutional? the power to pass such a law is, says marshall, "derived entirely" from that clause of the constitution which "enables congress, 'to regulate commerce with foreign nations, and among the several states.'"[ ] this power includes navigation. the authority to forbid foreign ships to enter our ports comes exclusively from the commerce clause. "if this power over vessels is not in congress, where does it reside? does it reside in the states? "no american politician has ever been so extravagant as to contend for this. no man has been wild enough to maintain, that, although the power to regulate commerce, gives congress an unlimited power over the cargoes, it does not enable that body to control the vehicle in which they are imported: that, while the whole power of commerce is vested in congress, the state legislatures may confiscate every vessel which enters their ports, and congress is unable to prevent their entry." the truth, continues marshall, is that "even an empty vessel, or a packet, employed solely in the conveyance of passengers and letters, may be regulated and forfeited" under a national law. "there is not, in the constitution, one syllable on the subject of navigation. and yet, every power that pertains to navigation has been ... rightfully exercised by congress. from the adoption of the constitution, till this time, the universal sense of america has been, that the word commerce, as used in that instrument, is to be considered a generic term, comprehending navigation, or, that a control over navigation is necessarily incidental to the power to regulate commerce."[ ] here was a weapon which webster could have wielded with effect, but he was unaware that it existed--a fact the more remarkable in that both webster and emmet commented, in their arguments, upon state laws that prohibited the admission of negroes. but webster never doubted that the court's decision would be against the new york steamboat monopoly laws. "our steam boat case is not yet decided, but it _can go but one way_," he wrote his brother a week after the argument.[ ] on march , , marshall delivered that opinion which has done more to knit the american people into an indivisible nation than any other one force in our history, excepting only war. in marbury _vs._ madison he established that fundamental principle of liberty that a permanent written constitution controls a temporary congress; in fletcher _vs._ peck, in sturges _vs._ crowninshield, and in the dartmouth college case he asserted the sanctity of good faith; in m'culloch _vs._ maryland and cohens _vs._ virginia he made the government of the american people a living thing; but in gibbons _vs._ ogden he welded that people into a unit by the force of their mutual interests. the validity of the steamboat monopoly laws of new york, declares marshall, has been repeatedly upheld by the legislature, the council of revision, and the various courts of that state, and is "supported by great names--by names which have all the titles to consideration that virtue, intelligence, and office, can bestow."[ ] having paid this tribute to chancellor kent--for every word of it was meant for that great jurist--marshall takes up the capital question of construction. it is urged, he says, that, before the adoption of the constitution, the states "were sovereign, were completely independent, and were connected with each other only by a league. this is true. but when these allied sovereigns converted their league into a government, when they converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws ... the whole character" of the states "underwent a change, the extent of which must be determined by a fair consideration" of the constitution. why ought the powers "expressly granted" to the national government to be "construed strictly," as many insist that they should be? "is there one sentence in the constitution which gives countenance to this rule?" none has been pointed out; none exists. what is meant by "a strict construction"? is it "that narrow construction, which would cripple the government and render it unequal to the objects for which it is declared to be instituted,[ ] and to which the powers given, as fairly understood, render it competent"? the court cannot adopt such a rule for expounding the constitution.[ ] just as men, "whose intentions require no concealment," use plain words to express their meaning, so did "the enlightened patriots who framed our constitution," and so did "the people who adopted it." surely they "intended what they have said." if any serious doubt of their meaning arises, concerning the extent of any power, "the objects for which it was given ... should have great influence in the construction."[ ] apply this common-sense rule to the commerce clause of the constitution.[ ] what does the word "commerce" mean? strict constructionists, like the advocates of the new york steamboat monopoly, "limit it to ... buying and selling ... and do not admit that it comprehends navigation." but why not navigation? "commerce ... is traffic, but it is something more; it is intercourse." if this is not true, then the national government can make no law concerning american vessels--"yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. all america understands ... the word 'commerce' to comprehend navigation.... the power over commerce, including navigation, was one of the primary objects for which the people of america adopted their government.... the attempt to restrict it [the meaning of the word "commerce"] comes too late." was not the object of the embargo, which "engaged the attention of every man in the united states," avowedly "the protection of commerce?... by its friends and its enemies that law was treated as a commercial, not as a war measure." indeed, its very object was "the avoiding of war." resistance to it was based, not on the denial that congress can regulate commerce, but on the ground that "a perpetual embargo was the annihilation, and not the regulation of commerce." this illustration proves that "the universal understanding of the american people" was, and is, that "a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.'"[ ] nobody denies that the national government has unlimited power over foreign commerce--"no sort of trade can be carried on between this country and any other, to which this power does not extend." the same is true of commerce among the states. the power of the national government over trade with foreign nations, and "among" the several states, is conferred in the same sentence of the constitution, and "must carry the same meaning throughout the sentence.... the word 'among' means intermingled with." so "commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior." this does not, of course, include the "completely interior traffic of a state."[ ] everybody knows that foreign commerce is that of the whole nation and not of its parts. "every district has a right to participate in it. the deep streams which penetrate our country in every direction, pass through the interior of almost every state in the union." the power to regulate this commerce "must be exercised whenever the subject exists. if it exists within a state, if a foreign voyage may commence or terminate within a state, then the power of congress may be exercised within a state."[ ] if possible, "this principle ... is still more clear, when applied to commerce 'among the several states.' they either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which case other states lie between them.... can a trading expedition between two adjoining states commence and terminate outside of each?" the very idea is absurd. and must not commerce between states "remote" from one another, pass through states lying between them? the power to regulate this commerce is in the national government.[ ] what is this power to "regulate commerce"? it is the power "to prescribe the rule by which commerce is to be governed. this power ... is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution;" and these do not affect the present case. power over interstate commerce "is vested in congress as absolutely as it would be in a single government" under a constitution like ours. there is no danger that congress will abuse this power, because "the wisdom and the discretion of congress, their identity with the people, and the influence which their constituents possess at election, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they [the people] have relied, to secure them from its abuse. they are restraints on which the people must often rely solely, in all representative governments." the upshot of the whole dispute is, declares marshall, that congress has power over navigation "within the limits of every state ... so far as that navigation may be, in any manner, connected" with foreign or interstate trade.[ ] marshall tries to answer the assertion that the power to regulate commerce is concurrent in congress and the state legislatures; but, in doing so, he is diffuse, prolix, and indirect. there is, he insists, no analogy between the taxing power of congress and its power to regulate commerce; the former "does not interfere with the power of the states to tax for the support of their own governments." in levying such taxes, the states "are not doing what congress is empowered to do." but when a state regulates foreign or interstate commerce, "it is exercising the very power ... and doing the very thing which congress is authorized to do." however, says marshall evasively, in the case before the court the question whether congress has exclusive power over commerce, or whether the states can exercise it until congress acts, may be dismissed, since congress has legislated on the subject. so the only practical question is: "can a state regulate commerce with foreign nations and among the states while congress is regulating it?"[ ] the argument is not sound that, since the states are expressly forbidden to levy duties on tonnage, exports, and imports which they might otherwise have levied, they may exercise other commercial regulations, not in like manner expressly prohibited. for the taxation of exports, imports, and tonnage is a part of the general taxing power and is not connected with the power to regulate commerce. it is true that duties on tonnage often are laid "with a view to the regulation of commerce; but they may be also imposed with a view to revenue," and, therefore, the states are prohibited from laying such taxes. there is a vast difference between taxation for the regulation of commerce and taxation for raising revenue. "those illustrious statesmen and patriots" who launched the revolution and framed the constitution understood and acted upon this distinction: "the right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue, produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed."[ ] in the same way, state inspection laws, while influencing commerce, do not flow from a power to regulate commerce. the purpose of inspection laws is "to improve the quality of the articles produced by the labor of the country.... they act upon the subject before it becomes an article" of foreign or interstate commerce. such laws "form a portion of that immense mass of legislation which embraces everything within the territory of a state," and "which can be most advantageously exercised by the states themselves." of this description are "inspection laws, quarantine laws, health laws ... as well as laws for regulating the internal commerce of a state, and those which respect turnpike-roads, ferries, etc."[ ] legislation upon all these subjects is a matter of state concern--congress can act upon them only "for national purposes ... where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given." obviously, however, the national government "in the exercise of its express powers, that, for example, of regulating [foreign and interstate] commerce ... may use means that may also be employed by a state, ... that, for example, of regulating commerce within the state." the national coasting laws, though operating upon ports within the same state, imply "no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police." state laws on these subjects, although of the "same character" as those of congress, do not flow from the same source whence the national laws flow, "but from some other, which remains with the state, and may be executed by the same means." although identical measures may proceed from different powers, "this does not prove that the powers themselves are identical."[ ] it is inevitable in a "complex system" of government like ours that "contests respecting power must arise" between state and nation. but this "does not prove that one is exercising, or has a right to exercise, the powers of the other."[ ] it cannot be inferred from national statutes requiring national officials to "conform to, and assist in the execution of the quarantine and health laws of a state ... that a state may rightfully regulate commerce"; such laws flow from "the acknowledged power of a state, to provide for the health of its citizens." nevertheless, "congress may control the state [quarantine and health] laws, so far as it may be necessary to control them, for the regulation of commerce."[ ] marshall analyzes, at excessive length, national and state laws on the importation of slaves, on pilots, on lighthouses,[ ] to show that such legislation does not justify the inference that "the states possess, concurrently" with congress, "the power to regulate commerce with foreign nations and among the states." in the regulation of "their own purely internal affairs," states may pass laws which, although in themselves proper, become invalid when they interfere with a national law. is this the case with the new york steamboat monopoly acts? have they "come into collision with an act of congress, and deprived a citizen of a right to which that act entitles him"? if so, it matters not whether the state laws are the exercise of a concurrent power to regulate commerce, or of a power to "regulate their domestic trade and police." in either case, "the acts of new york must yield to the law of congress."[ ] this truth is "founded as well on the nature of the government as on the words of the constitution." the theory that if state and nation each rightfully pass conflicting laws on the same subject, "they affect the subject, and each other, like equal opposing powers," is demolished by the "supremacy" of the constitution and "of the laws made in pursuance of it. the nullity of _any act_, inconsistent with the constitution, is produced by the declaration that the constitution is the supreme law." so when a state statute, enacted under uncontrovertible state powers, conflicts with a law, treaty, or the constitution of the nation, the state enactment "must yield to it."[ ] it is not the constitution, but "those laws whose authority is acknowledged by civilized man throughout the world" that "confer the right of intercourse between state and state.... the constitution found it an existing right, and gave to congress the power to regulate it. in the exercise of this power, congress has passed an act" regulating the coasting trade. any law "must imply a power to exercise the right" it confers. how absurd, then, the contention that, while the state of new york cannot prevent a vessel licensed under the national coasting law, when proceeding from a port in new jersey to one in new york, "from enjoying ... all the privileges conferred by the act of congress," nevertheless, the state of new york "can shut her up in her own port, and prohibit altogether her entering the waters and ports of another state"![ ] a national license to engage in the coasting trade gives the right to navigate between ports of different states.[ ] the fact that gibbons's boats carried passengers only did not make those vessels any the less engaged in the coasting trade than if they carried nothing but merchandise--"no clear distinction is perceived between the power to regulate vessels employed in transporting men for hire, and property for hire.... a coasting vessel employed in the transportation of passengers, is as much a portion of the american marine as one employed in the transportation of a cargo."[ ] falling into his characteristic over-explanation, marshall proves the obvious by many illustrations.[ ] however the question as to the nature of the business is beside the point, since the steamboat monopoly laws are based solely on the method of propelling boats--"whether they are moved by steam or wind. if by the former, the waters of new york are closed against them, though their cargoes be dutiable goods, which the laws of the united states permit them to enter and deliver in new york. if by the latter, those waters are free to them, though they should carry passengers only." what is the injury which ogden complains that gibbons has done him? not that gibbons's boats carry passengers, but only that those vessels "are moved by steam." "the writ of injunction and decree" of the state court "restrain these [gibbons's] licensed vessels, not from carrying passengers, but from being moved through the waters of new york by steam, for any purpose whatever." therefore, "the real and sole question seems to be, whether a steam machine, in actual use, deprives a vessel of the privileges conferred by a [national] license." the answer is easy--indeed, there is hardly any question to answer: "the laws of congress, for the regulation of commerce, do not look to the principle by which vessels are moved."[ ] steamboats may be admitted to the coasting trade "in common with vessels using sails. they are ... entitled to the same privileges, and can no more be restrained from navigating waters, and entering ports which are free to such vessels, than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. the one element may be as legitimately used as the other, for every commercial purpose authorized by the laws of the union; and the act of a state inhibiting the use of either to any vessel having a license under the act of congress comes ... in direct collision with that act."[ ] marshall refuses to discuss the question of fulton's patents since, regardless of that question, the cause must be decided by the supremacy of national over state laws that regulate commerce between the states. the chief justice apologizes, and very properly, for taking so "much time ... to demonstrate propositions which may have been thought axioms. it is felt that the tediousness inseparable from the endeavor to prove that which is already clear, is imputable to a considerable part of this opinion. but it was unavoidable." the question is so great, the judges, from whose conclusions "we dissent," are so eminent,[ ] the arguments at the bar so earnest, an "unbroken" statement of principles upon which the court's judgment rests so indispensable, that marshall feels that nothing should be omitted, nothing taken for granted, nothing assumed.[ ] having thus placated kent, marshall turns upon his virginia antagonists: "powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the union, are to be contracted, by construction, into the narrowest possible compass, and that the original powers of the states are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, _explain away the constitution of our country, and leave it a magnificent structure indeed, to look at, but totally unfit for use_. "they may so entangle and perplex the understanding, as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. "in such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and, when sustained, to make them the tests of the arguments to be examined."[ ] so spoke john marshall, in his seventieth year, when closing the last but one of those decisive opinions which vitalized the american constitution, and assured for himself the grateful and reverent homage of the great body of the american people as long as the american nation shall endure. it is pleasant to reflect that the occasion for this ultimate effort of marshall's genius was the extinction of a monopoly. marshall, the statesman, rather than the judge, appears in his opinion. while avowing the most determined nationalism in the body of his opinion, he is cautious, nevertheless, when coming to close grips with the specific question of the respective rights of gibbons and ogden. he is vague on the question of concurrent powers of the states over commerce, and rests the concrete result of his opinion on the national coasting laws and the national coasting license to gibbons. william johnson, a republican, appointed by jefferson, had, however, no such scruples. in view of the strong influence marshall had, by now, acquired over johnson, it appears to be not improbable that the chief justice availed himself of the political status of the south carolinian, as well as of his remarkable talents, to have johnson state the real views of the master of the supreme court. at any rate, johnson delivered a separate opinion so uncompromisingly nationalist that marshall's nationalism seems hesitant in comparison. in it johnson gives one of the best statements ever made, before or since, of the regulation of commerce as the moving purpose that brought about the american constitution. that instrument did not originate liberty of trade: "the law of nations ... pronounces all commerce legitimate in a state of peace, until prohibited by positive law." so the power of congress over that vital matter "must be exclusive; it can reside but in one potentate; and hence, the grant of this power carries with it the whole subject, leaving nothing for the state to act upon."[ ] commercial laws! were the whole of them "repealed to-morrow, all commerce would be lawful." the authority of congress to control foreign commerce is precisely the same as that over interstate commerce. the national power over navigation is not "incidental to that of regulating commerce; ... it is as the thing itself; inseparable from it as vital motion is from vital existence.... shipbuilding, the carrying trade, and the propagation of seamen, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects would not possess power to regulate commerce."[ ] johnson therefore finds it "impossible" to agree with marshall that freedom of interstate commerce rests on any such narrow basis as national coasting law or license: "i do not regard it as the foundation of the right set up in behalf of the appellant [gibbons]. if there was any one object riding over every other in the adoption of the constitution, it was to keep the commercial intercourse among the states free from all invidious and partial restraints.... if the [national] licensing act was repealed to-morrow," gibbons's right to the free navigation of new york waters "would be as strong as it is under this license."[ ] so it turned out that the first man appointed for the purpose of thwarting marshall's nationalism, expressed, twenty years after his appointment, stronger nationalist sentiments than marshall himself was, as yet, willing to avow openly. johnson's astonishing opinion in gibbons _vs._ ogden is conclusive proof of the mastery the chief justice had acquired over his republican associate, or else of the conquest by nationalism of the mind of the south carolina republican. for the one and only time in his career on the supreme bench, marshall had pronounced a "popular" opinion. the press acclaimed him as the deliverer of the nation from thralldom to monopoly. his opinion, records the _new york evening post_, delivered amidst "the most unbroken silence" of a "courtroom ... crowded with people," was a wonderful exhibition of intellect--"one of the most powerful efforts of the human mind that has ever been displayed from the bench of any court. many passages indicated a profoundness and a forecast in relation to the destinies of our confederacy peculiar to the great man who acted as the organ of the court. the steamboat grant is at an end."[ ] niles published marshall's opinion in full,[ ] and in this way it reached, directly or indirectly, every paper, big and little, in the whole country, and was reproduced by most of them. many journals contained long articles or editorials upon it, most of them highly laudatory. _the new york evening post_ of march declared that it would "command the assent of every impartial mind competent to embrace the subject." thus, for the moment, marshall was considered the benefactor of the people and the defender of the nation against the dragon of monopoly. his opinion in gibbons _vs._ ogden changed into applause that disfavor which his opinion in m'culloch _vs._ maryland had evoked. only the southern political leaders saw the "danger"; but so general was the satisfaction of the public that they were, for the most part, quiescent as to marshall's assertion of nationalism in this particular case. but few events in our history have had a larger and more substantial effect on the well-being of the american people than this decision, and marshall's opinion in the announcement of it. new york instantly became a free port for all america. steamboat navigation of american rivers, relieved from the terror of possible and actual state-created monopolies, increased at an incredible rate; and, because of two decades of restraint and fear, at abnormal speed.[ ] new england manufacturers were given a new life, since the transportation of anthracite coal--the fuel recently discovered and aggravatingly needed--was made cheap and easy. the owners of factories, the promoters of steamboat traffic, the innumerable builders of river craft on every navigable stream in the country, the farmer who wished to send his products to market, the manufacturer who sought quick and inexpensive transportation of his wares--all acclaimed marshall's decision because all found in it a means to their own interests. the possibilities of transportation by steam railways soon became a subject of discussion by enterprising men, and marshall's opinion gave them tremendous encouragement. it was a guarantee that they might build railroads across state lines and be safe from local interference with interstate traffic. could the chief justice have foreseen the development of the railway as an agency of nationalism, he would have realized, in part, the permanent and ever-growing importance of his opinion--in part, but not wholly; for the telegraph, the telephone, the oil and gas pipe line were also to be affected for the general good by marshall's statesmanship as set forth in his outgiving in gibbons _vs._ ogden. it is not immoderate to say that no other judicial pronouncement in history was so wedded to the inventive genius of man and so interwoven with the economic and social evolution of a nation and a people. after almost a century, marshall's nationalist theory of commerce is more potent than ever; and nothing human is more certain than that it will gather new strength as far into the future as forecast can penetrate. at the time of its delivery, nobody complained of marshall's opinion except the agents of the steamboat monopoly, the theorists of localism, and the slave autocracy. all these influences beheld, in marshall's statesmanship, their inevitable extinction. all correctly understood that the nationalism expounded by marshall, if truly carried out, sounded their doom. immediately after the decision was published, a suit was brought in the new york court of equity, apparently for the purpose of having that tribunal define the extent of the supreme court's holding. john r. livingston secured a coasting license for the olive branch, and sent the boat from new york to albany, touching at jersey and unloading there two boxes of freight. the north river steamboat company, assignee of the livingston-fulton monopoly, at once applied for an injunction.[ ] the matter excited intense interest, and nathan sanford, who had succeeded kent as chancellor, took several weeks to "consider the question."[ ] he delivered two opinions, the second almost as nationalist as that of marshall. "the law of the united states is supreme.... the state law is annihilated, so far as the ground is occupied by the law of the union; and the supreme law prevails, as if the state law had never been made. the supremacy of constitutional laws of the union, and the nullity of state laws inconsistent with such laws of the union, are principles of the constitution of the united states.... so far as the law of the union acts upon the case, the state law is extinguished.... opposing rights to the same thing, can not co-exist under the constitution of our country."[ ] but chancellor sanford held that, over commerce exclusively within the state, the nation had no control. livingston appealed to the court of errors, and in february, , the case was heard. the year intervening since marshall delivered his opinion had witnessed the rise of an irresistible tide of public sentiment in its favor; and this, more influential than all arguments of counsel even upon an "independent judiciary," was reflected in the opinion delivered by john woodworth, one of the judges of the supreme court of that state. he quotes marshall liberally, and painstakingly analyzes his opinion, which, says woodworth, is confined to commerce among the states to the exclusion of that wholly within a single state. over this latter trade congress has no power, except for "national purposes," and then only where such power is "'expressly given ... or is clearly incidental to some power expressly given.'"[ ] chief justice john savage adopted the same reasoning as did justice woodworth, and examined marshall's opinion with even greater particularity, but arrived at the same conclusion. savage adds, however, "a few general remarks," and in these he almost outruns the nationalism of marshall. "the constitution ... should be so construed as best to promote the great objects for which it was made"; among them a principal one was "'to form a more perfect union,'" etc.[ ] the regulation of commerce among the states "was one great and leading inducement to the adoption" of the nation's fundamental law.[ ] "we are the citizens of two distinct, yet connected governments.... the powers given to the general government are to be first satisfied." to the warning that the state governments "will be swallowed up" by the national government, savage declares, "my answer is, if such danger exists, the states should not provoke a termination of their existence, by encroachments on their part."[ ] in such ringing terms did savage endorse marshall's opinion in gibbons _vs._ ogden. the state senators "concurred" automatically in the opinion of chief justice savage, and the decree of chancellor sanford, refusing an injunction on straight trips of the olive branch between new york landings, but granting one against commerce of any kind with other states, was affirmed. so the infinitely important controversy reached a settlement that, to this day, has not been disturbed. commerce among the states is within the exclusive control of the national government, including that which, though apparently confined to state traffic, affects the business transactions of the nation at large. the only supervision that may be exercised by a state over trade must be wholly confined to that state, absolutely without any connection whatever with intercourse with other states. one year after the decision of gibbons _vs._ ogden, the subject of the powers and duties of the supreme court was again considered by congress. during february, , an extended debate was held in the senate over a bill which, among other things, provided for three additional members of that tribunal.[ ] but the tone of its assailants had mellowed. the voice of denunciation now uttered words of deference, even praise. senator johnson, while still complaining of the evils of an "irresponsible" judiciary, softened his attack with encomium: "our nation has ever been blessed with a most distinguished supreme court, ... eminent for moral worth, intellectual vigor, extensive acquirements, and profound judicial experience and knowledge.... against the federal judiciary, i have not the least malignant emotion."[ ] senator john h. eaton of tennessee said that virginia's two members of the supreme court (marshall and bushrod washington) were "men of distinction, ... whose decisions carried satisfaction and confidence."[ ] senator isham talbot of kentucky paid tribute to the "wise, mild, and guiding influence of this solemn tribunal."[ ] in examining the nationalist decisions of the supreme court he went out of his way to declare that he did not mean "to cast the slightest shade of imputation on the purity of intention or the correctness of judgment with which justice is impartially dispensed from this exalted bench."[ ] this remarkable change in the language of congressional attack upon the national judiciary became still more conspicuous at the next session in the debate upon practically the same bill and various amendments proposed to it. promptly after congress convened in december, , webster himself reported from the judiciary committee of the house a bill increasing to ten the membership of the supreme court and rearranging the circuits.[ ] this measure passed substantially as reported.[ ] when the subject was taken up in the senate, senator martin van buren in an elaborate speech pointed out the vast powers of that tribunal, unequaled and without precedent in the history of the world--powers which, if now "presented for the first time," would undoubtedly be denied by the people.[ ] yet, strange as it may seem, opposition has subsided in an astonishing manner, he said; even those states whose laws have been nullified, "after struggling with the giant strength of the court, have submitted to their fate."[ ] indeed, says van buren, there has grown up "a sentiment ... of idolatry for the supreme court ... which claims for its members an almost entire exemption from the fallibilities of our nature." the press, especially, is influenced by this feeling of worship. van buren himself concedes that the justices have "talents of the highest order and spotless integrity." marshall, in particular, deserves unbounded praise and admiration: "that ... uncommon man who now presides over the court ... is, in all human probability, the ablest judge now sitting upon any judicial bench in the world."[ ] the fiery john rowan of kentucky, now senator from that state, and one of the boldest opponents of the national judiciary, offered an amendment requiring that "seven of the ten justices of the supreme court shall concur in any judgement or decree, which denies the validity, or restrains the operation, of the constitution, or law of any of the states, or any provision or enaction in either."[ ] in advocating his amendment, however, rowan, while still earnestly attacking the "encroachments" of the supreme court, admitted the "unsuspected integrity" of the justices upon which "suspicion has never scowled.... the present incumbents are above all suspicion; obliquity of motive has never been ascribed to any of them."[ ] nevertheless, he complains of "a judicial superstition--which encircles the judges with infallibility."[ ] this seemingly miraculous alteration of public opinion, manifesting itself within one year from the violent outbursts of popular wrath against marshall and the national judiciary, was the result of the steady influence of the conservatives, unwearyingly active for a quarter of a century; of the natural reaction against extravagance of language and conduct shown by the radicals during that time; of the realization that the supreme court could be resisted only by force continuously exercised; and, above all, of the fundamental soundness and essential justness of marshall's opinions, which, in spite of the local and transient hardship they inflicted, in the end appealed to the good sense and conscience of the average man. undoubtedly, too, the character of the chief justice, which the nation had come to appreciate, was a powerful element in bringing about the alteration in the popular concept of the supreme court. but, notwithstanding the apparent diminution of animosity toward the chief justice and the national judiciary, hatred of both continued, and within a few years showed itself with greater violence than ever. how marshall met this recrudescence of localism is the story of his closing years. when, in gibbons _vs._ ogden, marshall established the supremacy of congress over commerce among the states, he also announced the absolute power of the national legislature to control trade with foreign nations. it was not long before an opportunity was afforded him to apply this principle, and to supplement his first great opinion on the meaning of the commerce clause, by another pronouncement of equal power and dignity. by acts of the maryland legislature importers or wholesalers of imported goods were required to take out licenses, costing fifty dollars each, before they could sell "by wholesale, bale or package, hogshead, barrel, or tierce." non-observance of this requirement subjected the offender to a fine of one hundred dollars and forfeiture of the amount of the tax.[ ] under this law alexander brown and his partners, george, john, and james brown, were indicted in the city court of baltimore for having sold a package of foreign dry goods without a license. judgment against the merchants was rendered; and this was affirmed by the court of appeals. the case was then taken to the supreme court on a writ of error and argued for brown & co. by william wirt and jonathan meredith, and for maryland by roger brooke taney[ ] and reverdy johnson.[ ] on march , , the chief justice delivered the opinion of the majority of the court, justice thompson dissenting. the only question, says marshall, is whether a state can constitutionally require an importer to take out a license "before he shall be permitted to sell a bale or package" of imported goods.[ ] the constitution prohibits any state from laying imposts or duties on imports or exports, except what may be "absolutely necessary for executing its inspection laws." the maryland act clearly falls within this prohibition: "a duty on imports ... is not merely a duty on the act of importation, but is a duty on the thing imported.... "there is no difference," continues marshall, "between a power to prohibit the sale of an article and a power to prohibit its introduction into the country.... no goods would be imported if none could be sold." the power which can levy a small tax can impose a great one--can, in fact, prohibit the thing taxed: "questions of power do not depend on the degree to which it may be exercised."[ ] he admits that "there must be a point of time when the prohibition [of states to tax imports] ceases and the power of the state to tax commences"; but "this point of time is [not] the instant that the articles enter the country."[ ] here marshall becomes wisely cautious. the power of the states to tax and the "restriction" on that power, "though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them. yet the distinction exists, and must be marked as cases arise. till they do arise, it might be premature to state any rule as being universal in its application. it is sufficient for the present, to say, generally, that, when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution."[ ] it is not true that under the rule just stated, the state is precluded from regulating its internal trade and from protecting the health or morals of its citizens. the constitutional inhibition against state taxation of imports applies only to "the form in which it was imported." when the importer sells his goods "the [state] law may treat them as it finds them." measures may also be taken by the state concerning dangerous substances like gunpowder or "infectious or unsound articles"--such measures are within the "police power, which unquestionably remains, and ought to remain, with the states." but state taxation of imported articles in their original form is a violation of the clause of the constitution forbidding states to lay any imposts or duties on imports and exports.[ ] such taxation also violates the commerce clause. marshall once more outlines the reasons for inserting that provision into the constitution, cites his opinion in gibbons _vs._ ogden, and again declares that the power of congress to regulate commerce "is co-extensive with the subject on which it acts and cannot be stopped at the external boundary of a state, but must enter its interior." this power, therefore, "must be capable of authorizing the sale of those articles which it introduces." in almost the same words already used, the chief justice reiterates that goods would not be imported if they could not be sold. "congress has a right, not only to authorize importation, but to authorize the importer to sell." a tariff law "offers the privilege [of importation] for sale at a fixed price to every person who chooses to become a purchaser." by paying the duty the importer makes a contract with the national government--"he ... purchase[s] the privilege to sell." "the conclusion, that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable." to deny that right "would break up commerce." the power of a state "to tax its own citizens, or their property within its territory," is "acknowledged" and is "sacred"; but it cannot be exercised "so as to obstruct or defeat the power [of congress] to regulate commerce." when state laws conflict with national statutes, "that which is not supreme must yield to that which is supreme"--a "great and universal truth ... inseparable from the nature of things," which "the constitution has applied ... to the often interfering powers of the general and state governments, as a vital principle of perpetual operation." the states, through the taxing power, "cannot reach and restrain the action of the national government ...--cannot reach the administration of justice in the courts of the union, or the collection of the taxes of the united states, or restrain the operation of any law which congress may constitutionally pass--... cannot interfere with any regulation of commerce." otherwise a state might tax "goods in their transit through the state from one port to another for the purpose of re-exportation"; or tax articles "passing through it from one state to another, for the purpose of traffic"; or tax "the transportation of articles passing from the state itself to another state for commercial purposes." of what avail the power given congress by the constitution if the states may thus "derange the measures of congress to regulate commerce"? marshall is here addressing south carolina and other states which, at that time, were threatening retaliation against the manufacturers of articles protected by the tariff.[ ] he pointedly observes that the decision in m'culloch _vs._ maryland is "entirely applicable" to the present controversy, and adds that "we suppose the principle laid down in this case to apply equally to importations from a sister state."[ ] the principles announced by marshall in brown _vs._ maryland have been upheld by nearly all courts that have since dealt with the subject of commerce. but there has been much "distinguishing" of various cases from that decision; and, in this process, the application of his great opinion has often been modified, sometimes evaded. in some cases in which marshall's statesmanship has thus been weakened and narrowed, local public sentiment as to questions that have come to be considered moral, has been influential. it is fortunate for the republic that considerations of this kind did not, in such fashion, impair the liberty of commerce among the states before the american nation was firmly established. when estimating our indebtedness to john marshall, we must have in mind the state of the country at the time his constitutional expositions were pronounced and the inevitable and ruinous effect that feebler and more restricted assertions of nationalism would then have had. seldom has a triumph of sound principles and of sound reasoning in the assertion of those principles been more frankly acknowledged than in the tribute which roger brooke taney inferentially paid to john marshall, whom he succeeded as chief justice. twenty years after the decision of brown _vs._ maryland, taney declared: "i at that time persuaded myself that i was right.... but further and more mature reflection has convinced me that the rule laid down by the supreme court is a just and safe one, and perhaps the best that could have been adopted for preserving the right of the united states on the one hand, and of the states on the other, and preventing collision between them."[ ] chief justice taney's experience has been that of many thoughtful men who, for a season and when agitated by intense concern for a particular cause or policy, have felt marshall to have been wrong in this, that, or the other of his opinions. frequently, such men have, in the end, come to the steadfast conclusion that they were wrong and that marshall was right. footnotes: [ ] institut national des sciences et des arts. [ ] dickinson: _robert fulton, engineer and artist_, - ; also see thurston: _robert fulton_, . [ ] see dickinson, - ; also knox: _life of robert fulton_, - ; and fletcher: _steam-ships_, - . [ ] dickinson, - ; knox, - . [ ] act of march , , _laws of new york, _, - . this act, however, was merely the transfer of similar privileges granted to john fitch on march , , to whom, rather than to robert fulton, belongs the honor of having invented the steamboat. it was printed in the _laws of new york_ edited by thomas greenleaf, published in , i, ; and also appears as appendix a to "a letter, addressed to cadwallader d. colden, esquire," by william alexander duer, the first biographer of fulton. (albany, .) duer's pamphlet is uncommonly valuable because it contains all the petitions to, and the acts of, the new york legislature concerning the steamboat monopoly. [ ] reigart: _life of robert fulton_, . nobody but livingston was willing to invest in what all bankers and business men considered a crazy enterprise. (_ib._ - .) [ ] knox, . it should be remembered, however, that the granting of monopolies was a very common practice everywhere during this period. (see prentice: _federal power over carriers and corporations_, - .) [ ] compare with his brother's persistence in the batture controversy, _supra_, - . [ ] dickinson, - ; knox, - . [ ] knox, ; see also dickinson, . [ ] act of april , , _laws of new york, - _, - . [ ] act of april , , _laws of new york, - _, - . [ ] the north river was afterward named the clermont, which was the name of livingston's county seat. (dickinson, .) [ ] the country people along the hudson thought the steamboat a sea monster or else a sign of the end of the world. (knox, - .) [ ] act of april , , _laws of new york, - _, - . (italics the author's.) [ ] dickinson, - . [ ] _ib._ - . the thoroughfare in new york, at the foot of which these boats landed, was thereafter named fulton street. (_ib._ .) [ ] see _infra_, . [ ] dickinson, . from the first roosevelt had been associated with livingston in steamboat experiments. he had constructed the engine for the craft with which livingston tried to fulfill the conditions of the first new york grant to him in . roosevelt was himself an inventor, and to him belongs the idea of the vertical wheel for propelling steamboats which fulton afterward adopted with success. (see j. h. b. latrobe, in _maryland historical society fund-publication_, no. , - .) roosevelt was also a manufacturer and made contracts with the government for rolled and drawn copper to be used in war-vessels. the government failed to carry out its agreement, and roosevelt became badly embarrassed financially. in this situation he entered into an arrangement with livingston and fulton that if the report he was to make to them should be favorable, he was to have one third interest in the steamboat enterprise on the western waters, while livingston and fulton were to supply the funds. the story of his investigations and experiments on the ohio and mississippi glows with romance. although forty-six years old, he had but recently married and took his bride with him on this memorable journey. at pittsburgh he built a flatboat and on this the newly wedded couple floated to new orleans; the trip, with the long and numerous stops to gather information concerning trade, transportation, the volume and velocity of various streams, requiring six months' time. before proceeding far roosevelt became certain of success. discovering coal on the banks of the ohio, he bought mines, set men at work in them, and stored coal for the steamer he felt sure would be built. his expectation was justified and, returning to new york from new orleans, he readily convinced livingston and fulton of the practicability of the enterprise and was authorized to go back to pittsburgh to construct a steamboat, the design of which was made by fulton. by the summer of the vessel was finished. it cost $ , and was named the new orleans. late in september, , the long voyage to new orleans was begun, the only passengers being roosevelt and his wife. a great crowd cheered them as the boat set out from pittsburgh. at cincinnati the whole population greeted the arrival of this extraordinary craft. mr. and mrs. roosevelt were given a dinner at louisville, where, however, all declared that while the boat could go down the river, it never could ascend. roosevelt invited the banqueters to dine with him on the new orleans the next night and while toasts were being drunk and hilarity prevailed, the vessel was got under way and swiftly proceeded upstream, thus convincing the doubters of the power of the steamboat. from louisville onward the voyage was thrilling. the earthquake of came just after the new orleans passed louisville and this changed the river channels. at another time the boat took fire and was saved with difficulty. along the shore the inhabitants were torn between terror of the earthquake and fright at this monster of the waters. the crew had to contend with snags, shoals, sandbars, and other obstructions. finally natchez was reached and here thousands of people gathered on the bluffs to witness this triumph of science. at last the vessel arrived at new orleans and the first steamboat voyage on the ohio and mississippi was an accomplished fact. the experiment, which began two years before with the flatboat voyage of a bride and groom, ended at the metropolis of the southwest in the marriage of the steamboat captain to mrs. roosevelt's maid, with whom he had fallen in love during this thrilling and historic voyage. (see latrobe, in _md. hist. soc. fund-pub_. no. . a good summary of latrobe's narrative is given in preble: _chronological history of the origin and development of steam navigation_, - .) [ ] act of jan. , , _acts of new jersey, _, - . [ ] act of april , , _laws of new york, _, - . [ ] _laws of connecticut_, may sess. , chap. xxviii. [ ] dickinson, . [ ] livingston _et al._ _vs._ van ingen _et al._, paine, - . brockholst livingston, associate justice of the supreme court, sat in this case with william p. van ness (the friend and partisan of burr), and delivered the opinion. [ ] the full title of this tribunal was the "court for the trial of impeachments and the correction of errors." it was the court of last resort, appeals lying to it from the supreme court of judicature and from the court of chancery. it consisted of the justices of the supreme court of judicature and a number of state senators. a more absurdly constituted court cannot well be imagined. [ ] johnson, , . [ ] the state senate, house, council of revision, and governor. [ ] johnson, . [ ] those enacted in , , , , and . [ ] johnson, . jay as governor was chairman of the council of revision, of which kent was a member. [ ] _lb._ . [ ] _ib._ . (italics the author's.) [ ] johnson, . [ ] _ib._ - . [ ] _ib._ - . [ ] johnson, , . [ ] _ib._ - . [ ] all the senators concurred except two, lewis and townsend, who declined giving opinions because of relationship with the parties to the action. (_ib._ .) [ ] ogden protested against the livingston-fulton steamboat monopoly in a memorial to the new york legislature. (see duer, - .) a committee was appointed and reported the facts as ogden stated them; but concluded that, since new york had granted exclusive steamboat privileges to livingston, "the honor of the state requires that its faith should be preserved." however, said the committee, the livingston-fulton boats "are in substance the invention of john fitch," to whom the original monopoly was granted, after the expiration of which "the right to use" steamboats "became common to all the citizens of the united states." moreover, the statements upon which rested the livingston monopoly of "were not true in fact," fitch having forestalled the claims of the livingston pretensions. (_ib._ - .) [ ] johnson's _chancery reports_, - . the reader must not confuse the two series of reports by johnson; one contains the decisions of the court of errors; the other, those of the court of chancery. [ ] act of april , , _laws of new york, - _, - . [ ] johnson's _chancery reports_, , . [ ] _ib._ . [ ] _ib._ . [ ] act of feb. , , _u.s. statutes at large_, i, - . [ ] johnson's _chancery reports_, . [ ] johnson, _et seq._ [ ] johnson's _chancery reports_, - . [ ] johnson, _et seq._ [ ] see _supra_, - , - . [ ] story to fettyplace, feb. , , story, i, . [ ] records supreme court, ms. [ ] the case was first docketed, june , , as aaron ogden _vs._ thomas _gibbins_, and the defective transcript was filed october , of the same year. when next docketed, the title was correctly given, thomas gibbons _vs._ aaron ogden. (_ib._) [ ] act of april , , _acts of territory of orleans, _, - . [ ] act of nov. , , _laws of georgia, _, october sess. - . [ ] act of feb. , , _laws of massachusetts, - _, . [ ] act of june , , _laws of new hampshire, _, ii, . [ ] act of nov. , , _laws of vermont, _, . [ ] ohio, for example, passed two laws for the "protection" of its citizens owning steamboats. this act provided that no craft propelled by steam, operated under a license from the new york monopoly, should land or receive passengers at any point on the ohio shores of lake erie unless ohio boats were permitted to navigate the waters of that lake within the jurisdiction of new york. for every passenger landed in violation of these acts the offender was made subject to a fine of $ . (chap, xxv, act of feb. , , and chap. ii, act of may , , _laws of ohio, _.) [ ] niles's _register_ for these years is full of accounts of the building, launching, and departures and arrivals of steam craft throughout the whole interior of the country. [ ] see blane: _an excursion through the united states and canada_, by "an english gentleman," - . for an accurate account of the commercial development of the west see also johnson: _history of domestic and foreign commerce_, i, - . on march , , flint saw a boat on the stocks at jeffersonville, indiana, feet long, feet broad, and of tons burden. (flint's letters, in _e. w. t._: thwaites, ix, .) [ ] blane, . [ ] _annals_, th cong. d sess. . [ ] _ib._ . [ ] see debate in the house, _ib._ - ; and in the senate, _ib._ - . [ ] _ib._ - . [ ] march , , _ib._ . [ ] veto message of march , , richardson, i, - . [ ] monroe gingerly referred to it in his first inaugural address. (richardson, ii, .) but in his first annual message he dutifully followed madison and declared that "congress do not possess the right" to appropriate national funds for internal improvements. so this third republican president recommended an amendment to the constitution "which shall give to congress the right in question." (_ib._ .) [ ] _annals_, th cong. st sess. - . [ ] _ib._ - , - . [ ] "all the difficulties under which we have labored and now labor on this subject have grown out of a fatal admission" by madison "which runs counter to the tenor of his whole political life, and is expressly contradicted by one of the most luminous and able state papers that ever was written [the virginia resolutions]--an admission which gave a sanction to the principle that this government had the power to charter the present colossal bank of the united states. sir, ... that act, and one other which i will not name [madison's war message in ], bring forcibly home to my mind a train of melancholy reflections on the miserable state of our mortal being: 'in life's last scenes, what prodigies surprise! fears of the brave, and follies of the wise. from marlborough's eyes the streams of dotage flow, and swift expires a driv'ler and a show.' "such is the state of the case, sir. it is miserable to think of it--and we have nothing left to us but to weep over it." (_annals_, th cong. st sess. .) randolph was as violently against the war of as was marshall, but he openly proclaimed his opposition. [ ] _ib._ [ ] italics the author's. [ ] _annals_, th cong. st sess. . [ ] _ib._ - . the bill passed, yeas to nays. (_ib._ - .) [ ] see _infra_, - . [ ] see _infra_, chap. x. [ ] see vol. i, - , of this work; also marshall: _life of george washington_, d ed. ii, - , - , . and see madison's "preface to debates in the convention of ." (_records of the federal convention_: farrand, iii, .) "the want of authy. in congs. to regulate commerce had produced in foreign nations particularly g. b. a monopolizing policy injurious to the trade of the u. s. and destructive to their navigation.... the same want of a general power over commerce led to an exercise of this power separately, by the states, w^{ch} not only proved abortive, but engendered rival, conflicting and angry regulations." [ ] _records, fed. conv_.: farrand, ii, . the provision in this draft is very curious. it declares that "a navigation act shall not be passed, but with the consent of (eleven states in) < / d. of the members present of> the senate and ( in) <the like no. of> the house of representatives." [ ] _ib._ , , , , . roger sherman mentioned interstate trade only incidentally. speaking of exports and imports, he said that "the oppression of the uncommercial states was guarded agst. by the power to regulate trade between the states." (_ib._ .) writing in , madison said that the commerce clause "being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. yet it ... grew out of the abuse of the power by the importing states in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the states themselves, rather than as a power to be used for the positive purposes of the general government, in which alone, however, the remedial power could be lodged." (madison to cabell, feb. , , _ib._ iii, .) [ ] see _monthly law reporter_, new series, x, . [ ] wirt to carr, feb. , , kennedy, ii, . [ ] _ib._ [ ] "reminiscence," that betrayer of history, is responsible for the fanciful story, hitherto accepted, that webster was speaking on the tariff in the house when he was suddenly notified that gibbons _vs._ ogden would be called for argument the next morning; and that, swiftly concluding his great tariff argument, he went home, took medicine, slept until ten o'clock that night, then rose, and in a strenuous effort worked until a.m. on his argument in the steamboat case; and that this was all the preparation he had for that glorious address. (ticknor's reminiscences of webster, as quoted by curtis, i, - .) on its face, webster's argument shows that this could not have been true. the fact was that webster had had charge of the case in the supreme court for three years; and that, since the argument was twice before expected, he had twice before prepared for it. the legend about his being stopped in his tariff speech is utterly without foundation. the debate on that subject did not even begin in the house until february , (_annals_, th cong. st sess. ), three days after the argument of gibbons _vs._ ogden was concluded; and webster did not make his famous speech on the tariff bill of until april - , one month after the steamboat case had been decided. (_ib._ - .) moreover, as has been stated in the text, the debate on the survey of roads and canals was on in the house when the argument in gibbons _vs._ ogden was heard; had been in progress for three weeks previously and continued for some time afterward; and in this debate webster did not participate. indeed, the record shows that for more than a week before the steamboat argument webster took almost no part in the house proceedings. (_ib._ - .) [ ] wheaton, . [ ] wheaton, - . [ ] _ib._ - . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ - . [ ] wheaton, . [ ] _ib._ . [ ] the student should carefully read these three admirable arguments, particularly that of emmet. all of them deal with patent law as well as with the commerce clause of the constitution. (see wheaton, - .) the argument lasted from february to february inclusive. [ ] brockenbrough, - . [ ] brockenbrough, - . [ ] webster to his brother, feb. , , van tyne, . [ ] wheaton, . [ ] "we the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." (preamble to the constitution of the united states.) [ ] wheaton, - . [ ] _ib._ - . [ ] "the congress shall have power ... to regulate commerce with foreign nations, and among the several states, and with the indian tribes." (constitution of the united states, article i, section .) [ ] wheaton, - . [ ] wheaton, - . [ ] _ib._ . [ ] wheaton, - . [ ] _ib._ - . [ ] wheaton, - . [ ] wheaton, - . [ ] _ib._ . [ ] wheaton, - . [ ] _ib._ - . [ ] _ib._ - . [ ] wheaton, - . [ ] _ib._ - . [ ] wheaton, - . (italics the author's.) [ ] _ib._ - . [ ] _ib._ . [ ] wheaton, - . [ ] _ib._ - . [ ] _ib._ - . [ ] wheaton, . [ ] marshall is here referring particularly to chancellor kent. [ ] wheaton, - . [ ] wheaton, . (italics the author's.) [ ] wheaton, . [ ] wheaton, - . [ ] _ib._ - . [ ] _new york evening post_, march , , as quoted in warren, . [ ] niles, xxvi, - . [ ] for example, steamboat construction on the ohio alone almost doubled in a single year, and quadrupled within two years. (see table in meyer-macgill: _history of transportation in the united states_, etc., .) [ ] hopkins's _chancery reports_, . [ ] _ib._ . [ ] cowen, - . [ ] cowen, - . [ ] _ib._ . [ ] _ib._ [ ] cowen, - . [ ] this bill had been proposed by senator richard m. johnson of kentucky at the previous session (_annals_, th cong. st sess, ) as an amendment to a bill reported from the judiciary committee by senator martin van buren (_ib._ ). [ ] _debates_, th cong. d sess. - . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . after considerable wrangling, the bill was reported favorably from the judiciary committee (_ib._ ), but too late for further action at that session. [ ] _debates_, th cong. st sess. . [ ] four days after the house adopted webster's bill (_ib._ ), he wrote his brother: "the judiciary bill will probably pass the senate, as it left our house. there will be no difficulty in finding perfectly safe men for the new appointments. the contests on those constitutional questions in the west have made men fit to be judges." (webster to his brother, jan. , , _priv. corres_.: webster, i, .) [ ] _debates_, th cong. st sess. - . [ ] _ib._ . [ ] _ib._ - . [ ] _debates_, th cong. st sess. - . [ ] _ib._ . [ ] _ib._ . rowan's amendment was defeated (_ib._ ). upon disagreements between the senate and house as to the number and arrangement of districts and circuits, the entire measure was lost. in the house it was "indefinitely postponed" by a vote of to (_ib._ ); and in the senate the bill was finally laid on the table (_ib._ ). [ ] wheaton, . [ ] taney, leading counsel for maryland, had just been appointed attorney-general of that state, and soon afterwards was made attorney-general of the united states. he succeeded marshall as chief justice. (see _infra_, .) [ ] johnson was only thirty-one years old at this time, but already a leader of the baltimore bar and giving sure promise of the distinguished career he afterward achieved. [ ] wheaton, . [ ] wheaton, - . [ ] _ib._ . [ ] _ib._ - . [ ] wheaton, - . [ ] see _infra_, - . [ ] wheaton, - . [ ] howard, . chapter ix the supreme conservative if a judge becomes odious to the people, let him be removed. (william branch giles.) our wisest friends look with gloom to the future. (joseph story.) i have always thought, from my earliest youth till now, that the greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary. (marshall.) "i was in a very great crowd the other evening at m^{rs} adams' drawing room, but i see very few persons there whom i know & fewer still in whom i take any interest. a person as old as i am feels that his home is his place of most comfort, and his old wife the companion in the world in whose society he is most happy. "i dined yesterday with mr. randolph. he is absorbed in the party politics of the day & seems as much engaged in them as he was twenty five years past. it is very different with me. i long to leave this busy bustling scene & to return to the tranquility of my family & farm. farewell my dearest polly. that heaven may bless you is the unceasing prayer of your ever affectionate "j. marshall."[ ] this letter to his ageing and afflicted wife, written in his seventy-second year, reveals marshall's state of mind as he entered the final decade of his life. while the last of his history-making and nation-building opinions had been delivered, the years still before him were to be crowded with labor as arduous and scenes as picturesque as any during his career on the bench. it was to be a period of disappointment and grief, but also of that supreme reward for sound and enduring work which comes from recognition of the general and lasting benefit of that work and of the greatness of mind and nobility of character of him who performed it. for twenty years the chief justice had not voted. the last ballot he had cast was against the reëlection of jefferson in . from that time forward until , he had kept away from the polls. in the latter year he probably voted for john quincy adams, or rather against andrew jackson, who, as marshall thought, typified the recrudescence of that unbridled democratic spirit which he so increasingly feared and distrusted.[ ] [illustration: john marshall] yet, even in so grave a crisis as marshall believed the presidential election of to be, he shrank from the appearance of partisanship. the _marylander_, a baltimore democratic paper, published an item quoting marshall as having said: "i have not voted for twenty years; but i shall consider it a solemn duty i owe my country to go to the polls and vote at the next presidential election--for should jackson be elected, i shall look upon the government as virtually dissolved."[ ] this item was widely published in the administration newspapers, including the richmond _whig and advertiser_. to this paper marshall wrote, denying the statement of the baltimore publication: "holding the situation i do ... i have thought it right to abstain from any public declarations on the election; ... i admit having said in private that though i had not voted since the establishment of the general ticket system, and had believed that i never should vote during its continuance, i might probably depart from my resolution in this instance, from the strong sense i felt of the injustice of the charge of corruption against the president & secretary of state: i never did use the other expressions ascribed to me."[ ] this "card" the _enquirer_ reproduced, together with the item from the _marylander_, commenting scathingly upon the methods of adams's supporters. clay, deeply touched, wrote the chief justice of his appreciation and gratitude; but he is sorry that marshall paid any attention to the matter "because it will subject you to a part of that abuse which is so indiscriminately applied to ... everything standing in the way of the election of a certain individual."[ ] marshall was sorely worried. he writes story that the incident "provoked" him, "not because i have any objection to its being known that my private judgement is in favor of the re-election of m^r adams, but because i have great objections to being represented in the character of a furious partisan. intemperate language does not become my age or office, and is foreign from my disposition and habits. i was therefore not a little vexed at a publication which represented me as using language which could be uttered only by an angry party man." he explains that the item got into the _marylander_ through a remark of one of his nephews "who was on the adams convention" at baltimore, to the effect that he had heard marshall say that, although he had "not voted for upwards of twenty years" he "should probably vote at the ensuing election." his nephew wrote a denial, but it was not published. so, concludes marshall, "i must bear the newspaper scurrility which i had hoped to escape, and which is generally reserved for more important personages than myself. it is some consolation that it does not wound me very deeply."[ ] it would seem that marshall had early resolved to go to any length to deprive the enemies of the national judiciary of any pretext for attacking him or the supreme court because of any trace of partisan activity on his part. one of the largest tasks he had set for himself was to create public confidence in that tribunal, and to raise it above the suspicion that party considerations swayed its decisions. he had seen how nearly the arrogance and political activity of the first federalist judges had wrecked the supreme court and the whole judicial establishment, and had resolved, therefore, to lessen popular hostility to courts, as far as his neutral attitude to party controversies could accomplish that purpose. it thus came about that marshall refrained even from exercising his right of suffrage from to --perhaps, indeed, to the end of his life, since it is not certain that he voted even at the election of . considering the intensity of his partisan feelings, his refusal to vote, during nearly all the long period when he was chief justice, was a real sacrifice, the extent of which may be measured by the fact that, according to his letter to story, he did not even vote against madison in , notwithstanding the violence of his emotions aroused by the war.[ ] on march , , marshall administered the oath of office to the newly elected president, andrew jackson. no two men ever faced one another more unlike in personality and character. the mild, gentle, benignant features of the chief justice contrasted strongly with the stern, rigid, and aggressive countenance of "old hickory." the one stood for the reign of law; the other for autocratic administration. in jackson, whim, prejudice, hatred, and fierce affections were dominant; in marshall, steady, level views of life and government, devotion to order and regularity, abhorrence of quarrel and feud, constancy and evenness in friendship or conviction, were the chief elements of character. moreover, the chief justice personified the static forces of society; the new president was the product of a fresh upheaval of democracy, not unlike that which had placed jefferson in power. marshall had administered the presidential oath seven times before--twice each to jefferson, madison, and monroe, and once to john quincy adams. and now he was reading the solemn words to the passionate frontier soldier from whose wild, undisciplined character he feared so much. marshall briefly writes his wife about the inauguration: "we had yesterday a most busy and crowded day. people have flocked to washington from every quarter of the united states. when the oath was administered to the president the computation is that or people were present--a great number of them ladies. a great ball was given at night to celebrate the election. i of course did not attend it. the affliction of our son[ ] would have been sufficient to restrain me had i even felt a desire to go."[ ] in a previous letter to his wife he forecast the crowds and commotion: "the whole world it is said will be here.... i wish i could leave it all and come to you. how much more delightful would it be to me to sit by your side than to witness all the pomp and parade of the inauguration."[ ] much as he had come to dislike taking part in politics or in public affairs, except in the discharge of his judicial duties, marshall was prevailed upon to be a delegate to the virginia constitutional convention of - . he refused, at first, to stand for the place and hastened to reassure his "dearest polly." "i am told," he continues in his letter describing jackson's induction into office, "by several that i am held up as a candidate for the convention. i have no desire to be in the convention and do not mean to be a candidate. i should not trouble you with this did i not apprehend that the idea of my wishing to be in the convention might prevent some of my friends who are themselves desirous of being in it from becoming candidates. i therefore wish you to give this information to mr. harvie.[ ]... farewell my dearest polly. your happiness is always nearest the heart of your j. marshall."[ ] he yielded, however, and wrote story of his disgust at having done so: "i am almost ashamed of my weakness and irresolution when i tell you that i am a member of our convention. i was in earnest when i told you that i would not come into that body, and really believed that i should adhere to that determination; but i have acted like a girl addressed by a gentleman she does not positively dislike, but is unwilling to marry. she is sure to yield to the advice and persuasion of her friends.... the body will contain a great deal of eloquence as well as talent, and yet will do, i fear, much harm with some good. our freehold suffrage is, i believe, gone past redemption. it is impossible to resist the influence, i had almost said contagion of universal example."[ ] for fifty-three years virginia had been governed under the constitution adopted at the beginning of the revolution. as early as the close of this war the injustice and inadequacy of the constitution of had become evident, and, as a member of the house of delegates, marshall apparently had favored the adoption of a new fundamental law for the state.[ ] almost continuously thereafter the subject had been brought forward, but the conservatives always had been strong enough to defeat constitutional reform. on july , , in a letter to samuel kercheval, one of the ablest documents he ever produced, jefferson had exposed the defects of virginia's constitution which, he truly said, was without "leading principles." it denied equality of representation; the governor was neither elected nor controlled by the people; the higher judges were "dependent on none but themselves." with unsparing severity jefferson denounces the county court system. clearly and simply he enumerates the constructive reforms imperatively demanded, beginning with "general suffrage" and "equal representation," on which, however, he says that he wishes "to take no public share" because that question "has become a party one." indeed, at the very beginning of this brilliant and well-reasoned letter, jefferson tells kercheval that it is "for your satisfaction only, and not to be quoted before the public."[ ] but kercheval handed the letter around freely and proposed to print it for general circulation. on hearing of this, jefferson was "alarmed" and wrote kercheval harshly, repeating that the letter was not to be given out and demanding that the original and copies be recalled.[ ] this uncharacteristic perturbation of the former president reveals in startling fashion the bitterness of the strife over the calling of the convention, and over the issues confronting that body in making a new constitution for virginia. of the serious problems to be solved by the convention of - , that of suffrage was the most important. up to that time nobody could vote in virginia except white owners of freehold estates. counties, regardless of size, had equal representation in the house of delegates. this gave to the eastern and southern slaveholding sections of the state, with small counties having few voters, an immense preponderance over the western and northwestern sections, with large counties having many voters. on the other hand, the rich slavery districts paid much heavier taxes than the poorer free counties.[ ] marshall was distressed by every issue, to settle which the convention had been called. the question of the qualification for suffrage especially agitated him. immediately after his election to the convention, he wrote story of his troubles and misgivings: "we shall have a good deal of division and a good deal of heat, i fear, in our convention. the freehold principle will, i believe, be lost. it will, however, be supported with zeal. if that zeal should be successful i should not regret it. if we find that a decided majority is against retaining it i should prefer making a compromise by which a substantial property qualification may be preserved in exchange for it. "i fear the excessive [torn--probably, democratic spirit, coin]cident to victory after a hard fought battle continued to the last extremity may lead to universal suffrage or something very near it. what is the prop[erty] qualification for your senate? how are your senators apportioned on the state? and how does your system work? the question whether white population alone, or white population compounded with taxation, shall form the basis of representation will excite perhaps more interest than even the freehold suffrage. i wish we were well through the difficulty."[ ] the massachusetts constitutional convention had been held nearly a decade before that of virginia. the problem of suffrage had troubled the delegates almost as much as it now perplexed marshall. the reminiscent pickering writes the chief justice of the fight made in by the massachusetts conservatives against "the conceited innovators." story had been a delegate, and so had john adams, fainting with extreme age, but rich with the wisdom of his eighty-five years: "he made a short, but very good speech," begging the convention to retain the state senate as "the representative of _property_; ... the number of senators in each district was proportioned to its direct taxes to the state revenue--and not to its population. some democrats desired that the number of senators should be apportioned not according to the taxation, but exclusively to the population. this, mr. adams and all the most intelligent and considerate members opposed."[ ] ultra-conservative as marshall was, strongly as he felt the great body of the people incapable of self-government, he was deeply concerned for the well-being of what he called "the mass of the people." the best that can be done for them, he says in a letter to charles f. mercer, is to educate them. "in governments entirely popular" general education "is more indispensable ... than in an other." the labor problem troubles him sorely. when population becomes so great that "the surplus hands" must turn to other employment, a grave situation will arise. "as the supply exceeds the demand the price of labour will cheapen until it affords a bare subsistence to the labourer. the superadded demands of a family can scarcely be satisfied and a slight indisposition, one which suspends labour and compensation for a few days produces famine and pauperism. how is this to be prevented?" education may be relied on "in the present state of our population, and for a long time to come.... but as our country fills up how shall we escape the evils which have followed a dense population?"[ ] the chief justice went to the virginia convention a firm supporter of the strongest possible property qualification for suffrage. on the question of slavery, which arose in various forms, he had not made his position clear. the slavery question, as a national matter, perplexed and disturbed marshall. there was nothing in him of the humanitarian reformer, but there was everything of the statesman. he never had but one, and that a splendid, vision. the american nation was his dream; and to the realization of it he consecrated his life. a full generation after marshall wrote his last despairing word on slavery, abraham lincoln expressed the conviction which the great chief justice had entertained: "i would save the union. i would save it the shortest way under the constitution.... if i could save the union without freeing any slave, i would do it; and if i could save it by freeing some and leaving others alone, i would also do that. what i do about slavery and the colored race, i do because i believe it helps to save the union."[ ] pickering, the incessant, in one of his many and voluminous letters to marshall which the ancient new englander continued to write as long as he lived, had bemoaned the existence of slavery--one of the rare exhibitions of liberalism displayed by that adamantine federalist conservative. marshall answered: "i concur with you in thinking that nothing portends more calamity & mischief to the southern states than their slave population. yet they seem to cherish the evil and to view with immovable prejudice & dislike every thing which may tend to diminish it. i do not wonder that they should resist any attempt, should one be made, to interfere with the rights of property, but they have a feverish jealousy of measures which may do good without the hazard of harm that is, i think, very unwise."[ ] marshall heartily approved the plan of the american colonization society to send free negroes back to africa. the virginia branch of that organization was formed in , the year of the state constitutional convention, and marshall became a member. two years later he became president of the virginia branch, with james madison, john tyler, abel p. upshur, and other prominent virginians as vice-presidents.[ ] in , marshall was elected one of twenty-four vice-presidents of the national society, among whom were webster, clay, crawford, and lafayette.[ ] the reverend r. r. gurley, secretary of this organization, wrote to the more eminent members asking for their views. among those who replied were lafayette, madison, and marshall. the chief justice says that he feels a "deep interest in the ... society," but refuses to "prepare any thing for publication." the cause of this refusal is "the present state of [his] family"[ ] and a determination "long since formed ... against appearing in print on any occasion." nevertheless, he writes gurley a letter nearly seven hundred words in length. marshall thinks it "extremely desirable" that the states shall pass "permanent laws" affording financial aid to the colonization project. it will be "also desirable" if this legislation can be secured "to incline the people of color to migrate." he had thought for a long time that it was just possible that more negroes might like to go to liberia than "can be provided for with the funds [of] the society"; therefore he had "suggested, some years past," to the managers, "to allow a small additional bounty in lands to those who would pay their passage in whole or in part." to marshall it appears to be of "great importance to retain the countenance and protection of the general government. some of our cruizers stationed on the coast of africa would, at the same time, interrupt the slave trade--a horrid traffic detested by all good men--and would protect the vessels and commerce of the colony from pirates who infest those seas. the power of the government to afford this aid is not, i believe, contested." he thinks the plan of rufus king to devote part of the proceeds from the sale of public lands to a fund for the colonization scheme, "the most effective that can be devised," marshall makes a brief but dreary argument for this method of raising funds for the exportation of the freed blacks. he thus closes this eminently practical letter: "the removal of our colored population is, i think, a common object, by no means confined to the slave states, although they are more immediately interested in it. the whole union would be strengthened by it, and relieved from a danger, whose extent can scarcely be estimated." furthermore, says the chief justice, "it lessens very much ... the objection in a political view to the application of this ample fund [from the sale of the public domain], that our lands are becoming an object for which the states are to scramble, and which threatens to sow the seeds of discord among us instead of being what they might be--a source of national wealth."[ ] marshall delivered two opinions in which the question of slavery was involved, but they throw little light on his sentiments. in the case of the antelope he held that the slave trade was not prohibited by international law as it then existed; but since the court, including story and thompson, both bitter antagonists of slavery, was unanimous, the views of marshall cannot be differentiated from those of his associates. spain and portugal claimed certain negroes forcibly taken from spanish and portuguese slavers by an american slaver off the coast of africa. after picturesque vicissitudes the vessel containing the blacks was captured by an american revenue cutter and taken to savannah for adjudication. in due course the case reached the supreme court and was elaborately argued. the government insisted that the captured negroes should be given their liberty, since they had been brought into the country in violation of the statutes against the importation of slaves. spain and portugal demanded them as slaves "acquired as property ... in the regular course of legitimate commerce."[ ] it was not surprising that opinion on the slave trade was "unsettled," said marshall in delivering the opinion of the court. all "christian and civilized nations ... have been engaged in it.... long usage, and general acquiescence" have sanctioned it.[ ] america had been the first to "check" the monstrous traffic. but, whatever its feelings or the state of public opinion, the court "must obey the mandate of the law."[ ] he cites four english decisions, especially a recent one by sir william scott, the effect of all being that the slave trade "could not be pronounced contrary to the law of nations."[ ] every nation, therefore, has a right to engage in it. some nations may renounce that right sanctioned by "universal assent." but other nations cannot be bound by such "renunciation." for all nations, large and small, are equal--"russia and geneva have equal rights." no one nation "can rightfully impose a rule on another ... none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.... it follows, that a foreign vessel engaged in the african slave trade, captured on the high seas in time of peace, by an american cruiser, and brought in for adjudication, would be restored."[ ] four months before marshall was elected a member of the virginia constitutional convention, he delivered another opinion involving the legal status of slaves. several negroes, the property of one robert boyce, were on a steamboat, the teche, which was descending the mississippi. the vessel took fire and those on board, including the negroes, escaped to the shore. another steamboat, the washington, was coming up the river at the time, and her captain, in response to appeals from the stranded passengers of the burning vessel, sent a yawl to bring them to the washington. the yawl was upset and the slaves drowned. the owner of them sued the owner of the washington for their value. the district court held that the doctrine of common carriers did not apply to human beings; and this was the only question before the supreme court, to which boyce appealed. "a slave ... cannot be stowed away as a common package," said marshall in his brief opinion. "the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods.... the law applicable to common carriers is one of great rigor.... it has not been applied to living men, and ... ought not to be applied to them." nevertheless, "the ancient rule 'that the carrier is liable only for ordinary neglect,' still applies" to slaves. therefore the district court was right in its instructions to the jury.[ ] the two letters quoted and the opinions expressing the unanimous judgment of the supreme court are all the data we have as to marshall's views on slavery. it appears that he regretted the existence of slavery, feared the results of it, saw no way of getting rid of it, but hoped to lessen the evil by colonizing in africa such free black people as were willing to go there. in short, marshall held the opinion on slavery generally prevailing at that time. he was far more concerned that the union should be strengthened, and dissension in virginia quieted, than he was over the problem of human bondage, of which he saw no solution. when he took his seat as a delegate to the virginia constitutional convention of - , a more determined conservative than marshall did not live. apparently he did not want anything changed--especially if the change involved conflict--except, of course, the relation of the states to the nation. he was against a new constitution for virginia; against any extension of suffrage; against any modification of the county court system except to strengthen it; against a free white basis of representation; against legislative interference with business. his attitude was not new, nor had he ever concealed his views. his opinions of legislation and corporate property, for instance, are revealed in a letter written twenty years before the convention of - . in withdrawing from some virginia corporation because the general assembly of the state had passed a law for the control of it, marshall wrote: "i consider the interference of the legislature in the management of our private affairs, whether those affairs are committed to a company or remain under individual direction, as equally dangerous and unwise. i have always thought so and i still think so. i may be compelled to subject my property to these interferences, and when compelled i shall submit; but i will not voluntarily expose myself to the exercise of a power which i think so improperly usurped."[ ] two years before the convention was called, marshall's unyielding conservatism was displayed in a most conspicuous manner. in sturges _vs._ crowninshield,[ ] a state law had been held invalid which relieved creditors from contracts made before the passage of that law. but, in his opinion in that case, marshall used language that also applied to contracts made after the enactment of insolvency statutes; and the bench and bar generally had accepted his statement as the settled opinion of the supreme court. but so acute had public discontent become over this rigid doctrine, so strident the demand for bankrupt laws relieving insolvents, at least from contracts made after such statutes were enacted, that the majority of the supreme court yielded to popular insistence and, in ogden _vs._ saunders,[ ] held that "an insolvent law of a state does not impair the obligation of future contracts between its citizens."[ ] for the first time in twenty-seven years the majority of the court opposed marshall on a question of constitutional law. the chief justice dissented and delivered one of the most powerful opinions he ever wrote. the very "nature of our union," he says, makes us "one people, as to commercial objects."[ ] the prohibition in the contract clause "is complete and total. there is no exception from it.[ ]... insolvent laws are to operate on a future, contingent unforseen event."[ ] yet the majority of the court hold that such legislation enters into subsequent contracts "so completely as to become a ... part" of them. if this is true of one law, it is true of "every other law which relates to the subject." but this would mean, contends marshall, that a vital provision of the constitution, "one on which the good and the wise reposed confidently for securing the prosperity and harmony of our citizens, would lie prostrate, and be construed into an inanimate, inoperative, unmeaning clause." the construction of the majority of the court would "convert an inhibition to pass laws impairing the obligation of contracts into an inhibition to pass retrospective laws."[ ] if the constitution means this, why is it not so expressed? the mischievous laws which caused the insertion of the contract clause "embraced future contracts, as well as those previously formed."[ ] the gist of marshall's voluminous opinion in ogden _vs._ saunders is that the constitution protects all contracts, past or future, from state legislation which in any manner impairs their obligation.[ ] considering that even the rigidly conservative bushrod washington, marshall's stanch supporter, refused to follow his stern philosophy, in this case, the measure and character of marshall's conservatism are seen when, in his seventy-fifth year, he helped to frame a new constitution for virginia. still another example of marshall's rock-like conservatism and of the persistence with which he held fast to his views is afforded by a second dissent from the majority of the court at the same session. this time every one of the associate justices was against him, and story delivered their unanimous opinion. the bank of the united states had sued julius b. dandridge, cashier of the richmond branch, and his sureties, on his official bond. marshall, sitting as circuit judge, had held that only the written record of the bank's board of directors, that they approved and accepted the bond, could be received to prove that dandridge had been legally authorized to act as cashier. the supreme court reversed marshall's judgment, holding that the authorization of an agent by a corporation can be established by presumptive evidence,[ ] an opinion that was plainly sound and which stated the law as it has continued to be ever since. but despite the unanimity of his brethren, the clear and convincing opinion of story, the disapproval of his own views by the bench, bar, and business men of the whole country, marshall would not yield. "the ch: jus: i fear will _die hard_," wrote webster, who was of counsel for the bank.[ ] in a very long opinion marshall insists that his decision in the circuit court was right, fortifying his argument by more than thirty citations. he begins by frank acknowledgment of the discontent his decision in the circuit court has aroused: "i should now, as is my custom, when i have the misfortune to differ with this court, acquiesce silently in its opinion, did i not believe that the judgment of the circuit court of virginia gave general surprise to the profession, and was generally condemned." corporations, "being destitute of human organs," can express themselves only by writing. they must act through agents; but the agency can be created and proved only by writing. marshall points out the serious possibilities to those with whom corporations deal, as well as to the corporations themselves, of the acts of persons serving as agents without authority of record.[ ] powerful as his reasoning is, it is based on mistaken premises inapplicable to modern corporate transactions; but his position, his method, his very style, reveal the stubborn conservative at bay, bravely defending himself and his views. this, then, was the john marshall, who, in his old age, accepted the call of men as conservative as himself to help frame a new constitution for virginia, on monday, october , , the convention met in the house of delegates at richmond. james madison, then in his seventy-ninth year, feeble and wizened, called the members to order and nominated james monroe for president of the convention. this nomination was seconded by marshall. these three men, whose careers since before the revolution and throughout our formative period, had been more distinguished, up to that time, than had that of any american then living, were the most conspicuous persons in that notable assembly. giles, now governor of the state, was also a member; so were randolph, tyler, philip p. barbour, upshur, and tazewell. indeed, the very ablest men in virginia had been chosen to make a new constitution for the state. in the people's anxiety to select the best men to do that important work, delegates were chosen regardless of the districts in which they lived.[ ] to marshall, who naturally was appointed to the judiciary committee,[ ] fell the task of presenting to the convention the first petition of non-freeholders for suffrage.[ ] no more impressive document was read before that body. it stated the whole democratic argument clearly and boldly.[ ] the first report received from any committee was made by marshall and also was written by him.[ ] it provided for the organization of the state judiciary, but did not seek materially to change the system of appointments of judges. two sentences of this report are important: "no modification or abolition of any court, shall be construed to deprive any judge thereof of his office"; and, "judges may be removed from office by a vote of the general assembly: but two-thirds of the whole number of each house must concur in such vote."[ ] marshall promptly moved that this report be made the order of the day and this was done. ranking next to the question of the basis of suffrage and of representation was that of judiciary reform. to accomplish this reform was one of the objects for which the convention had been called. at that time the judiciary of virginia was not merely a matter of courts and judges; it involved the entire social and political organization of that state. no more essentially aristocratic scheme of government ever existed in america. coming down from colonial times, it had been perpetuated by the revolutionary constitution of . it had, in practical results, some good qualities and others that were evil, among the latter a well-nigh faultless political mechanism.[ ] the heart of this system was the county courts. too much emphasis cannot be placed on this fact. these local tribunals consisted of justices of the peace who sat together as county courts for the hearing and decision of the more important cases. they were almost always the first men of their counties, appointed by the governor for life; vacancies were, in practice, filled only on the recommendation of the remaining justices. while the constitution of did not require the governor to accept the nominations of the county courts for vacancies in these offices, to do so had been a custom long established.[ ] for this acquiescence of the governor in the recommendation of the county courts, there was a very human reason of even weightier influence than that of immemorial practice. the legislature chose the governor; and the justices of the peace selected, in most cases, the candidates for the legislature--seldom was any man elected by the people to the state senate or house of delegates who was not approved by the county courts. moreover, the other county offices, such as county clerks and sheriffs, were appointed by the governor only on the suggestion of the justices of the peace; and these officials worked in absolute agreement with the local judicial oligarchy. in this wise members of congress were, in effect, named by the county courts, and the legislature dared not and did not elect united states senators of whom the justices of the peace disapproved. the members of the court of appeals, appointed by the governor, were never offensive to these minor county magistrates, although the judges of this highest tribunal in virginia, always able and learned men holding their places for life, had great influence over the county courts, and, therefore, over the governor and general assembly also. nor was this the limit of the powers of the county courts. they fixed the county rate of taxation and exercised all local legislative and executive as well as judicial power.[ ] in theory, a more oligarchic system never was devised for the government of a free state; but in practice, it responded to the variations of public opinion with almost the precision of a thermometer. for example, nearly all the justices of the peace were federalists during the first two years of washington's administration; yet the state supported henry against assumption, and, later, went over to jefferson as against washington and henry combined.[ ] rigid and self-perpetuating as was the official aristocracy which the virginia judicial system had created, its members generally attended to their duties and did well their public work.[ ] they lived among the people, looked after the common good, composed disputes between individuals; soothed local animosities, prevented litigation; and administered justice satisfactorily when, despite their preventive efforts, men would bring suits. but the whole scheme was the very negation of democracy.[ ] while, therefore, this judicial-social-political plan worked well for the most part, the idea of it was offensive to liberal-minded men who believed in democracy as a principle. moreover, the official oligarchy was more powerful in the heavy slaveholding, than in the comparatively "free labor," sections; it had been longer established, and it better fitted conditions, east of the mountains. so it came about that there was, at last, a demand for judicial reform. seemingly this demand was not radical--it was only that the self-perpetuating county court system should be changed to appointments by the governor without regard to recommendations of the local justices; but, in reality, this change would have destroyed the traditional aristocratic organization of the political, social, and to a great extent the economic, life of virginia. on every issue over which the factions of this convention fought, marshall was reactionary and employed all his skill to defeat, whenever possible, the plans and purposes of the radicals. in pursuing this course he brought to bear the power of his now immense reputation for wisdom and justice. perhaps no other phase of his life displays more strikingly his intense conservatism. the conclusion of his early manhood--reluctantly avowed after washington, following the revolution, had bitterly expressed the same opinion,[ ] that the people, left to themselves, are not capable of self-government--had now become a profound moral belief. it should again be stated that most of marshall's views, formed as a young lawyer during the riotous years between the achievement of independence and the adoption of the constitution, had hardened, as life advanced, into something like religious convictions. it is noteworthy, too, that, in general, madison, giles, and even monroe, now stood with marshall. the most conspicuous feature of those fourteen weeks of tumultuous contest, as far as it reveals marshall's personal standing in virginia, was the trust, reverence, and affection in which he was held by all members, young and old, radical and conservative, from every part of the state. speaker after speaker, even in the fiercest debates, went out of his way to pay tribute to marshall's uprightness and wisdom.[ ] marshall spoke frequently on the judiciary; and, at one point in a debate on the removal of judges, disclosed opinions of historical importance. although twenty-seven years had passed since the repeal of the federalist judiciary act of ,[ ] marshall would not, even now, admit that repeal to be constitutional. littleton w. tazewell, also a member of the judiciary committee, asserted that, under the proposed new state constitution, the legislature could remove judges from office by abolishing the courts. john scott of fauquier county asked marshall what he thought of the ousting of federalist judges by the republicans in . the chief justice answered, "with great, very great repugnance," that throughout the debate he had "most carefully avoided" expressing any opinion on that subject. he would say, however, that "he did not conceive the constitution to have been at all definitely expounded by a single act of congress." especially when "there was no union of departments, but the legislative department alone had acted, and acted but once," ignoring the judicial department, such an act, "even admitting that act not to have passed in times of high political and party excitement, could never be admitted as final and conclusive."[ ] tazewell was of "an exactly opposite opinion"--the repeal act of "was perfectly constitutional and proper." giles also disagreed with marshall. should "a public officer ... receive the public money any longer than he renders service to the public"?[ ] marshall replied with spirit. no serious question can be settled, he declared, by mere "confidence of conviction, but on the reason of the case." all that he asked was that the judiciary article of the proposed state constitution should go forth, "uninfluenced by the opinion of any individual: let those, whose duty it was to settle the interpretation of the constitution, decide on the constitution itself."[ ] after extended debate[ ] and some wrangling, marshall's idea on this particular phase of the subject prevailed.[ ] the debate over the preservation of the county court system, for which marshall's report provided, was long and acrimonious, and a résumé of it is impossible here. marshall stoutly supported these local tribunals; their "abolition will affect our whole internal police.... no state in the union, has hitherto enjoyed more complete internal quiet than virginia. there is no part of america, where ... less of ill-feeling between man and man is to be found than in this commonwealth, and i believe most firmly that this state of things is mainly to be ascribed to the practical operation of our county courts." the county judges "consist in general of the best men in their respective counties. they act in the spirit of peace-makers, and allay, rather than excite the small disputes ... which will sometimes arise among neighbours."[ ] giles now aligned himself with marshall as a champion of the county court system. in an earnest defense of it he went so far as to reflect on the good sense of jefferson. everybody, said giles, knew that that "highly respectable man ... dealt very much in theories."[ ] during the remainder of the discussion on this subject, marshall rose frequently, chiefly, however, to guide the debate.[ ] he insisted that the custom of appointing justices of the peace only on nomination of the county courts should be written into the constitution. the executive ought to appoint _all_ persons recommended by "a county court, taken as a whole." marshall then moved an amendment to that effect.[ ] this was a far more conservative idea than was contained in the old constitution itself. "let the county court who now recommended, have power also to appoint: for there it ended at last," said william campbell of bedford county. giles was for marshall's plan: "the existing county court system" threw "power into the hands of the middle class of the community," he said; and it ought to be fortified rather than weakened. marshall then withdrew his astonishing amendment and proposed, instead, that the advice and "consent of the senate" should not be required for appointments of county justices, thus utterly eliminating all legislative control over these important appointments; and this extreme conservative proposition was actually adopted without dissent.[ ] thus the very foundation of virginia's aristocratic political organization was greatly strengthened. concerning the retention of his office by a judge after the court had been abolished, marshall made an earnest and impressive speech. what were the duties of a judge? "he has to pass between the government and the man whom that government is prosecuting: between the most powerful individual in the community, and the poorest and most unpopular. it is of the last importance, that in the exercise of these duties, he should observe the utmost fairness. need i press the necessity of this? does not every man feel that his own personal security and the security of his property depends on that fairness? "the judicial department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but god and his conscience? "you do not allow a man to perform the duties of a juryman or a judge, if he has one dollar of interest in the matter to be decided: and will you allow a judge to give a decision when his office may depend upon it? when his decision may offend a powerful and influential man? "your salaries do not allow any of your judges to lay up for his old age: the longer he remains in office, the more dependant he becomes upon his office. he wishes to retain it; if he did not wish to retain it, he would not have accepted it. and will you make me believe that if the manner of his decision may affect the tenure of that office, the man himself will not be affected by that consideration?... the whole good which may grow out of this convention, be it what it may, will never compensate for the evil of changing the tenure of the judicial office." barbour had said that to presume that the legislature would oust judges because of unpopular decisions, was to make an unthinkable imputation. but "for what do you make a constitution?" countered marshall. why provide that "no bill of attainder, or an _ex post facto_ law, shall be passed? what a calumny is here upon the legislature," he sarcastically exclaimed. "do you believe, that the legislature will pass a bill of attainder, or an _ex post facto_ law? do you believe, that they will pass a law impairing the obligation of contracts? if not, why provide against it?... "you declare, that the legislature shall not take private property for the public use, without just compensation. do you believe, that the legislature will put forth their grasp upon private property, without compensation? certainly i do not. there is as little reason to believe they will do such an act as this, as there is to believe, that a legislature will offend against a judge who has given a decision against some favourite opinion and favourite measure of theirs, or against a popular individual who has almost led the legislature by his talents and influence. "i am persuaded, there is at least as much danger that they will lay hold on such an individual, as that they will condemn a man to death for doing that which, when he committed it, was no crime. the gentleman says, it is impossible the legislature should ever think of doing such a thing. why then expunge the prohibition?... this convention can do nothing that would entail a more serious evil upon virginia, than to destroy the tenure by which her judges hold their offices."[ ] an hour later, the chief justice again addressed the convention on the independence of the judiciary. tazewell had spoken much in the vein of the republicans of .[ ] "the independence of all those who try causes between man and man, and between a man and his government," answered marshall, "can be maintained only by the tenure of their office. is not their independence preserved under the present system? none can doubt it. such an idea was never heard of in virginia, as to remove a judge from office." suppose the courts at the mercy of the legislature? "what would then be the condition of the court, should the legislature prosecute a man, with an earnest wish to convict him?... if they may be removed at pleasure, will any lawyer of distinction come upon your bench? "no, sir. i have always thought, from my earliest youth till now, that the greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary. will you draw down this curse upon virginia? our ancestors thought so: we thought so till very lately; and i trust the vote of this day will shew that we think so still."[ ] seldom in any parliamentary body has an appeal been so fruitful of votes. marshall's idea of the inviolability of judicial tenure was sustained by a vote of to , madison voting with him.[ ] lucas p. thompson of amherst county moved to strike out the provision in marshall's judiciary article that the abolition of a court should not "deprive any judge thereof of his office."[ ] thus the direct question, so fiercely debated in congress twenty-seven years earlier,[ ] was brought before the convention. it was promptly decided, and against the views and action of jefferson and the republicans of . by a majority of out of a total of ,[ ] the convention sustained the old federalist idea that judges should continue to hold their positions and receive their salaries, even though their offices were abolished. before the vote was taken, however, a sharp debate occurred between marshall and giles. to keep judges in office, although that office be destroyed, "was nothing less than to establish a privileged corps in a free community," said giles. marshall had said "that a judge ought to be responsible only to god and to his own conscience." although "one of the first objects in view, in calling this convention, was to make the judges responsible--not nominally, but really responsible," marshall actually proposed to establish "a _privileged order_ of men." another part of marshall's plan, said giles, required the concurrent vote of both houses of the legislature to remove a judge from the bench. "this was inserted, for what?" to prevent the legislature from removing a judge "whenever his conduct had been such, that he became unpopular and odious to the people"--the very power the legislature ought to have.[ ] in reply, marshall said that he would not, at that time, discuss the removal of judges by the legislature, but would confine himself "directly to the object before him," as to whether the abolition of a court should not deprive the judge of his office. giles had fallen into a strange confusion--he had treated "the office of a judge, and the court in which he sat, as being ... indissolubly united." but, asked marshall, were the words "office and court synonymes"? by no means. the proposed judiciary article makes the distinction when it declares that though the _court_ be abolished, the judge still holds his _office_. "in what does the office of a judge consist? ... in his constitutional capacity to receive judicial power, and to perform judicial duties.... "if the constitution shall declare that when the court is abolished, he shall still hold" his office, "there is no inconsistency in the declaration.... what creates the office?" an election to it by the legislature and a commission by the governor. "when these acts have been performed, the judges are in office. now, if the constitution shall say that his office shall continue, and he shall perform judicial duties, though his court may be abolished, does he, because of any modification that may be made in that court, cease to be a judge?... "the question constantly recurs--do you mean that the judges shall be removable at the will of the legislature? the gentleman talks of responsibility. responsibility to what? to the will of the legislature? can there be no responsibility, unless your judges shall be removable at pleasure? will nothing short of this satisfy gentlemen? then, indeed, there is an end to independence. the tenure during good behaviour, is a mere imposition on the public belief--a sound that is kept to the ear--and nothing else. the consequences must present themselves to every mind. there can be no member of this body who does not feel them. "if your judges are to be removable at the will of the legislature, all that you look for from fidelity, from knowledge, from capacity, is gone and gone forever." seldom did marshall show more feeling than when pressing this point; he could not "sit down," he said, without "noticing the morality" of giving the legislature power to remove judges from office. "gentlemen talk of sinecures, and privileged orders--with a view, as it would seem, to cast odium on those who are in office. "you seduce a lawyer from his practice, by which he is earning a comfortable independence, by promising him a certain support for life, unless he shall be guilty of misconduct in his office. and after thus seducing him, when his independence is gone, and the means of supporting his family relinquished, you will suffer him to be displaced and turned loose on the world with the odious brand of sinecure-pensioner--privileged order--put upon him, as a lazy drone who seeks to live upon the labour of others. this is the course you are asked to pursue." the provisions of the judiciary article before the convention secure ample responsibility. "if not, they can be made [to do] so. but is it not new doctrine to declare, that the legislature by merely changing the name of a court or the place of its meeting, may remove any judge from his office? the question to be decided is, and it is one to which we must come, whether the judges shall be permanent in their office, or shall be dependent altogether upon the breath of the legislature."[ ] giles answered on the instant. in doing so, he began by a tribute to marshall's "standing and personal excellence" which were so great "that he was willing to throw himself into the background, as to any weight to be attached to his [giles's] own opinion." therefore, he would "rely exclusively on the merits" of the controversy. marshall had not shown "that it was not an anomaly to have the court out of being, and an office pertain[ing] to the court in being.... it was an anomaly in terms." giles "had, however, such high respect" for marshall's standing, "that he always doubted his own opinion when put in opposition" to that of the chief justice. he had not intended, he avowed, "to throw reproach upon the judges in office." far be it from him to reflect "in the least degree on their honour and integrity." his point was that, by marshall's plan, "responsibility was rather avoided than sought to be secured." giles was willing to risk his liberty thus far--"if a judge became odious to the people, let him be removed from office."[ ] the debate continued upon another amendment by thompson. viewing the contest as a sheer struggle of minds, the conservatives were superior to the reformers,[ ] and steadily they gained votes.[ ] again marshall spoke, this time crossing swords with benjamin w. s. cabell and james madison, over a motion of the former that judges whose courts were abolished, and to whom the legislature assigned no new duties, should not receive salaries: "there were upwards of one hundred inferior courts in virginia.... no gentleman could look at the dockets of these courts, and possibly think" that the judges would ever have no business to transact. cabell's amendment "stated an impossible case," said marshall,--a "case where there should be no controversies between man and man, and no crimes committed against society. it stated a case that could not happen--and would the convention encounter the real hazard of putting almost every judge in the commonwealth in the power of the legislature, for the sake of providing for an impossible case?"[ ] but in spite of marshall's opposition, cabell's amendment was adopted by a vote of to .[ ] two weeks later, however, the convention reversed itself by two curious and contradictory votes.[ ] so in the end marshall won. the subject of the judiciary did not seriously arise again until the vote on the adoption of the entire constitution was imminent. as it turned out, the constitution, when adopted, contained, in substance, the judiciary provisions which marshall had written and reported at the beginning of that body's deliberations.[ ] the other and the commanding problem, for the solution of which the contention had been called, was made up of the associated questions of suffrage, taxation, and representation. broadly speaking, the issue was that of white manhood suffrage and representation based upon the enumeration of whites, as against suffrage determined by property and taxation, representation to be based on an enumeration which included three fifths of the slave population.[ ] in these complex and tangled questions the state and the convention were divided; so fierce were the contending factions, and so diverse were opinions on various elements of the confused problem, especially among those demanding reform, that at times no solution seemed possible. the friends of reform were fairly well organized and coöperated in a spirit of unity uncommon to liberals. but, as generally happens, the conservatives had much better discipline, far more harmony of opinion and conduct. the debate on both sides was able and brilliant.[ ] finally the convention seemingly became deadlocked. each side declared it would not yield.[ ] then came the inevitable reaction--a spirit of conciliation mellowed everybody. sheer human nature, wearied of strife, sought the escape that mutual accommodation alone afforded. the moment came for which marshall had been patiently waiting. rising slowly, as was his wont, until his great height seemed to the convention to be increased, his soothing voice, in the very gentleness of its timbre, gave a sense of restfulness and agreement so grateful to, and so desired by, even the sternest of the combatants. "no person in the house," began the chief justice, "can be more truly gratified than i am, at seeing the spirit that has been manifested here to-day; and it is my earnest wish that this spirit of conciliation may be acted upon in a fair, equal and honest manner, adapted to the situation of the different parts of the commonwealth, which are to be affected." the warring factions, said marshall, were at last in substantial accord. "that the federal numbers [the enumeration of slaves as fixed in the national constitution] and the plan of the white basis shall be blended together so as to allow each an equal portion of power, seems to be very generally agreed to." the only difference now was that one faction insisted on applying this plan to both houses of the legislature, while the other faction would restrict the white basis to the popular branch, leaving the senate to be chosen on the combined free white and black slave enumeration. this involves the whole theory of property. one gentleman, in particular, "seems to imagine that we claim nothing of republican principles, when we claim a representation for property." but "republican principles" do not depend on "the naked principle of numbers." on the contrary, "the soundest principles of republicanism do sanction some relation between representation and taxation.... the two ought to be connected.... this was the principle of the revolution.... this basis of representation is ... so important to virginia" that everybody had thought about it before this convention was called. "several different plans were contemplated. the basis of white population alone; the basis of free population alone; a basis of population alone; a basis compounded of taxation and white population, (or which is the same thing, a basis of federal numbers:).... now, of these various propositions, the basis of white population, and the basis of taxation alone are the two extremes." but, "between the free population, and the white population, there is almost no difference: between the basis of total population and the basis of taxation, there is but little difference." frankly and without the least disguise of his opinions, marshall admitted that he was a conservative of conservatives: "the people of the east," of whom he avowed himself to be one, "thought that they offered a fair compromise, when they proposed the compound basis of population and taxation, or the basis of the federal numbers. we thought that we had republican precedent for this--a precedent given us by the wisest and truest patriots that ever were assembled: but that is now past. "we are now willing to meet on a new middle ground." between the two extremes "the majority is too small to calculate upon.... we are all uncertain as to the issue. but all know this, that if either extreme is carried, it must leave a wound in the breast of the opposite party which will fester and rankle, and produce i know not what mischief." the conservatives were now the majority of the convention, yet they were again willing to make concessions. avoiding both extremes, marshall proposed, "as a compromise," that the basis of representation "shall be made according to an exact compound of the two principles, of the white basis and of the federal numbers, according to the census of ."[ ] further debate ensued, during which animosity seemed about to come to life again, when the chief justice once more exerted his mollifying influence. "two propositions respecting the basis of representation have divided this convention almost equally," he said. "the question has been discussed, until discussion has become useless. it has been argued, until argument is exhausted. we have now met on the ground of compromise." it is no longer a matter of the triumph of either side. the only consideration now is whether the convention can agree on some plan to lay before the people "with a reasonable hope that it may be adopted. some concession must be made on both sides.... what is the real situation of the parties?" unquestionably both are sincere. "to attempt now to throw considerations of principle into either scale, is to add fuel to a flame which it is our purpose to extinguish. we must lose sight of the situation of parties and state of opinion, if we make this attempt." the convention is nearly evenly balanced. at this moment those favoring a white basis only have a trembling majority of two. this may change--the reversal of a single vote would leave the house "equally divided." the question must be decided "one way or the other"; but, if either faction prevails by a bare majority, the proposed constitution will go to the people from an almost equally divided convention. that means a tremendous struggle, a riven state. interests in certain parts of the commonwealth will surely resist "with great force" a purely white basis of representation, especially if no effective property qualification for suffrage is provided. this opposition is absolutely certain "unless human nature shall cease to be what it has been in all time." no human power can forecast the result of further contest. but one thing is certain: "to obtain a just compromise, concession must not only be mutual--it must be equal also.... each ought to concede to the other as much as he demands from that other.... there can be no hope that either will yield more than it gets in return." the proposal that white population and taxation "mixed" with federal numbers in "equal proportions" shall "form the basis of representation in both houses," is equal and just. "all feel it to be equal." yet the conservatives now go still further--they are willing to place the house on the white basis and apply the mixed basis to the senate only. why refuse this adjustment? plainly it will work well for everybody: "if the senate would protect the east, will it not protect the west also?" marshall's satisfaction was "inexpressible" when he heard from both sides the language of conciliation. "i hailed these auspicious appearances with as much joy, as the inhabitant of the polar regions hails the re-appearance of the sun after his long absence of six tedious months. can these appearances prove fallacious? is it a meteor we have seen and mistaken for that splendid luminary which dispenses light and gladness throughout creation? it must be so, if we cannot meet on equal ground. if we cannot meet on the line that divides us equally, then take the hand of friendship, and make an equal compromise; it is vain to hope that any compromise can be made."[ ] the basis of representation does not appear in the constitution, the number of senators and representatives being arbitrarily fixed by districts and counties; but this plan, in reality, gave the slaveholding sections almost the same preponderance over the comparatively non-slaveholding sections as would have resulted from the enumeration of three fifths of all slaves in addition to all whites.[ ] while the freehold principle was abandoned, as marshall foresaw that it would be, the principle of property qualification as against manhood suffrage was triumphant.[ ] with a majority against them, the conservatives won by better management, assisted by the personal influence of the chief justice, to which, on most phases of the struggle, was added that of madison and giles. nearly a century has passed since these happenings, and marshall's attitude now appears to have been that of cold reaction; but he was as honest as he was outspoken in his resistance to democratic reforms. he wanted good government, safe government. he was not in the least concerned in the rule of the people as such. indeed, he believed that the more they directly controlled public affairs the worse the business of government would be conducted. he feared that sheer majorities would be unjust, intolerant, tyrannical; and he was certain that they would be untrustworthy and freakishly changeable. these convictions would surely have dictated his course in the virginia constitutional convention of - , had no other considerations influenced him. but, in addition to his long settled and ever-petrifying conservative views, we must also take into account the conditions and public temper existing in virginia ninety years ago. had the convention reached any other conclusion than that to which marshall gently guided it, it is certain that the state would have been torn by dissension, and it is not improbable that there would have been bloodshed. all things considered, it seems unsafe to affirm that marshall's course was not the wisest for that immediate period and for that particular state. displaying no vision, no aspiration, no devotion to human rights, he merely acted the uninspiring but necessary part of the practical statesman dealing with an existing and a very grave situation. if jefferson could be so frightened in that he forbade the public circulation of his perfectly sound views on the wretched virginia constitution of ,[ ] can it be wondered at that the conservative marshall in wished to compose the antagonisms of the warring factions? the fact that the nation was then facing the possibility of dissolution[ ] must also be taken into account. that circumstance, indeed, influenced marshall even more than did his profound conservatism. there can be little doubt that, had either the radicals or the conservatives achieved an outright victory, one part of virginia would have separated from the other and the growing sentiment for disunion would have received a powerful impulse. hurrying from richmond to washington when the convention adjourned, marshall listened to the argument of craig _vs._ missouri; and then delivered one of the strongest opinions he ever wrote--the only one of his constitutional expositions to be entirely repudiated by the supreme court after his death. the case grew out of the financial conditions described in the fourth chapter of this volume. when missouri became a state in , her people found themselves in desperate case. there was no money. banks had suspended, and specie had been drained to the eastern commercial centers. the simplest business transactions were difficult, almost impossible. even taxes could not be paid. the legislature, therefore, established loan offices where citizens, by giving promissory notes, secured by mortgage or pledge of personal property, could purchase loan certificates issued by the state. these certificates were receivable for taxes and other public debts and for salt from the state salt mines. the faith and resources of missouri were pledged for the redemption of the certificates which were negotiable and issued in denominations not exceeding ten dollars or less than fifty cents. in effect and in intention, the state thus created a local circulating medium of exchange. on august , , hiram craig and two others gave their promissory notes for $ . in payment for loan certificates. on maturity of these notes the borrowers refused to pay, and the state sued them; judgment against them was rendered in the trial court and this judgment was affirmed by the supreme court of missouri. the case was taken, by writ of error, to the supreme court of the united states, where the sole question to be decided was the constitutionality of the missouri loan office statutes. marshall's associates were now johnson, duval, story, thompson, mclean, and baldwin; the last two recently appointed by jackson. it was becoming apparent that the court was growing restive under the rigid practice of the austere theory of government and business which the chief justice had maintained for nearly a generation. this tendency was shown in this case by the stand taken by three of the associate justices. marshall was in his seventy-sixth year, but never did his genius shine more resplendently than in his announcement of the opinion of the supreme court in craig _vs._ missouri.[ ] he held that the missouri loan certificates were bills of credit, which the national constitution prohibited any state to issue. "what is a bill of credit?" it is "any instrument by which a state engages to pay money at a future day; thus including a certificate given for money borrowed.... to 'emit bills of credit' conveys to the mind the idea of issuing paper intended to circulate through the community, for its ordinary purposes, as money, which paper is redeemable at a future day."[ ] the chief justice goes into the history of the paper money evil that caused the framers of the constitution to forbid the states to "emit bills of credit." such currency always fluctuates. "its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man." to "cut up this mischief by the roots ... the people declared, in their constitution, that no state should emit bills of credit. if the prohibition means anything, if the words are not empty sounds, it must comprehend the emission of any paper medium by a state government, for the purpose of common circulation."[ ] incontestably the missouri loan certificates are just such bills of credit. indeed, the state law itself "speaks of them in this character." that the statute calls them certificates instead of bills of credit does not change the fact. how absurd to claim that the constitution "meant to prohibit names and not things! that a very important act, big with great and ruinous mischief, which is expressly forbidden ... may be performed by the substitution of a name." the constitution is not to be evaded "by giving a new name to an old thing."[ ] it is nonsense to say that these particular bills of credit are lawful because they are not made legal tender, since a separate provision applies to legal tender. the issue of legal tender currency, and also bills of credit, is equally and separately forbidden: "to sustain the one because it is not also the other; to say that bills of credit may be emitted if they be not made a tender in payment of debts; is ... to expunge that distinct, independent prohibition."[ ] in a well-nigh perfect historical summary, marshall reviews experiments before and during the revolution in bills of credit that were made legal tender, and in others that were not--all "productive of the same effects," all equally ruinous in results.[ ] the missouri law authorizing the loan certificates, for which craig gave his promissory note, is "against the highest law of the land, and ... the note itself is utterly void."[ ] the chief justice closes with a brief paragraph splendid in its simple dignity and power. in his argument for missouri, senator thomas h. benton had used violent language of the kind frequently employed by the champions of state rights: "if ... the character of a sovereign state shall be impugned," he cried, "contests about civil rights would be settled amid the din of arms, rather than in these halls of national justice."[ ] to this outburst marshall replies: the court has been told of "the dangers which may result from" offending a sovereign state. if obedience to the constitution and laws of the nation "shall be calculated to bring on those dangers ... or if it shall be indispensable to the preservation of the union, and consequently of the independence and liberty of these states; these are considerations which address themselves to those departments which may with perfect propriety be influenced by them. this department can listen only to the mandates of law; and can tread only that path which is marked out by duty."[ ] in this noble passage marshall is not only rebuking benton; he is also speaking to the advocates of nullification, then becoming clamorous and threatening; he is pointing out to andrew jackson the path of duty.[ ] justices johnson, thompson, and mclean afterwards filed dissenting opinions, thus beginning the departure, within the supreme court, from the stern constitutional nationalism of marshall. this breach in the court deeply troubled the chief justice during the remaining four years of his life. johnson thought "that these certificates are of a truly amphibious character." the missouri law "does indeed approach as near to a violation of the constitution as it can well go without violating its prohibition, but it is in the exercise of an unquestionable right, although in rather a questionable form." so, on the whole, johnson concluded that the supreme court had better hold the statute valid.[ ] "the right of a state to borrow money cannot be questioned," said thompson; that is all the missouri scheme amounts to. if these loan certificates are bills of credit, so are "all bank notes, issued either by the states, or under their authority."[ ] justice mclean pointed out that craig's case was only one of many of the same kind. "the solemn act of a state ... cannot be set aside ... under a doubtful construction of the constitution.[ ]... it would be as gross usurpation on the part of the federal government to interfere with state rights by an exercise of powers not delegated, as it would be for a state to interpose its authority against a law of the union."[ ] in congress attacks upon marshall and the supreme court now were renewed--but they grew continuously feebler. at the first session after the decision of the missouri loan certificate case, a bill was introduced to repeal the provision of the judiciary act upon which the national powers of the supreme court so largely depended. "if the twenty-fifth section is repealed, the constitution is practically gone," declared story. "our wisest friends look with great gloom to the future."[ ] marshall was equally despondent, but his political vision was clearer. when he read the dissenting opinions of johnson, thompson, and mclean, he wrote story: "it requires no prophet to predict that the th section [of the judiciary act] is to be repealed, or to use a more fashionable phrase to be nullified by the supreme court of the united states."[ ] he realized clearly that the great tribunal, the power and dignity of which he had done so much to create, would soon be brought under the control of those who, for some years at least, would reject that broad and vigorous nationalism which he had steadily and effectively asserted during almost a third of a century. one more vacancy on the supreme bench and a single new appointment by jackson would give the court to the opponents of marshall's views. before he died, the chief justice was to behold two such vacancies.[ ] on january , , william r. davis of south carolina presented the majority report of the judiciary committee favoring the repeal of that section of the judiciary act under which the supreme court had demolished state laws and annihilated the decisions of state courts.[ ] james buchanan presented the minority report.[ ] a few minutes' preliminary discussion revealed the deep feeling on both sides. philip doddridge of virginia declared that the bill was of "as much importance as if it were a proposition to repeal the union of these states." william w. ellsworth of connecticut avowed that it was of "overwhelming magnitude."[ ] thereupon the subject was furiously debated. thomas h. crawford of pennsylvania considered section of the judiciary act, to be as "sacred" as the constitution itself.[ ] henry daniel of kentucky asserted that the supreme court "stops at nothing to obtain power." let the "states ... prepare for the worst, and protect themselves against the assaults of this gigantic tribunal."[ ] william fitzhugh gordon of virginia, recently elected, but already a member of the judiciary committee, stoutly defended the report of the majority: "when a committee of the house had given to a subject the calmest and maturest investigation, and a motion is made to print their report, a gentleman gets up, and, in a tone of alarm, denounces the proposition as tantamount to a motion to repeal the union." gordon repudiated the very thought of dismemberment of the republic--that "palladium of our hopes, and of the liberties of mankind." as to the constitutionality of section of the judiciary act--"could it be new, especially to a virginia lawyer"? when the virginia judiciary, with roane at its head, had solemnly proclaimed the illegality of that section. and had not georgia ordered her governor to resist the enforcement of that provision of that ancient act of congress? "i declare to god ... that i believe nothing would tend so much to compose the present agitation of the country ... as the repeal of that portion of the judiciary act." gordon was about to discuss the nefarious case of cohens _vs._ virginia when his emotions overcame him--"he did not wish ... to go into the merits of the question."[ ] thomas f. foster of georgia said that the judiciary committee had reported under a "galling fire from the press"; quoted marshall's unfortunate language in the convention of ;[ ] and insisted that the "vast and alarming" powers of the supreme court must be bridled.[ ] but the friends of the court overwhelmed the supporters of the bill, which was rejected by a vote of to .[ ] it was ominous, however, that the south stood almost solid against the court and nationalism. footnotes: [ ] marshall to his wife, march , , ms. [ ] nevertheless he watched the course of politics closely. for instance: immediately after the house had elected john quincy adams to the presidency, marshall writes his brother a letter full of political gossip. he is surprised that adams was chosen on the first ballot; many think kremer's letter attacking clay caused this unexpectedly quick decision, since it "was & is thought a sheer calumny; & the resentment of clay's friends probably determined some of the western members who were hesitating. it is supposed to have had some influence elsewhere. the vote of new york was not decided five minutes before the ballots were taken." marshall tells his brother about cabinet rumors--crawford has refused the treasury and clay has been offered the office of secretary of state. "it is meer [_sic_] common rumor" that clay will accept. "mr. adams will undoubtedly wish to strengthen himself in the west," and clay is strong in that section unless kremer's letter has weakened him. the chief justice at first thought it had, but "on reflection" doubts whether it will "make any difference." (marshall to his brother, feb. , , ms.) marshall here refers to the letter of george kremer, a representative in congress from pennsylvania. kremer wrote an anonymous letter to the _columbian observer_ in which he asserted that clay had agreed to deliver votes to adams as the price of clay's appointment to the office of secretary of state. after much bluster, kremer admitted that he had no evidence whatever to support his charge; yet his accusation permanently besmirched clay's reputation. (for an account of the kremer incident see sargent, i, - , - .) out of the kremer letter grew a distrust of clay which he never really lived down. some time later, john randolph seized an opportunity to call the relation between president adams and his secretary of state "the coalition of blifil and black george--the combination, unheard of till then, of the puritan with the blackleg." the bloodless, but not the less real duel, that followed, ended this quarrel, though the unjust charges never quite died out. (schurz: _henry clay_, i, - .) [ ] baltimore _marylander_, march , . [ ] _enquirer_, april , . [ ] meaning jackson. clay to marshall, april , , ms. [ ] marshall to story, may , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] see chap. i of this volume. [ ] thomas, whose wife died feb. , . (paxton, .) [ ] marshall to his wife, march [ ], ms. [ ] same to same, feb. , , ms. [ ] jacquelin b. harvie, who married marshall's daughter, mary. [ ] marshall to his wife, march [ ], ms. [ ] marshall to story, june , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] see vol. i, - , of this work. [ ] jefferson to kercheval, july , , _works_: ford, xii, - . [ ] same to same, oct. , , _ib._ footnote to . [ ] at the time of the convention the eastern part of the state paid, on the average, more than three times as much in taxes per acre as the west. the extremes were startling--the trans-alleghany section (west virginia) paid only cents for every $ . paid by the tidewater. (_proceedings and debates of the virginia state convention of - _, , , - .) [ ] marshall to story, july , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] pickering to marshall, dec. , , pickering mss. mass. hist. soc.; see also story, i, - . [ ] marshall to mercer, april , , chamberlain mss. boston pub. lib. [ ] lincoln to greeley, aug. , , _complete works of abraham lincoln_: nicolay and hay, ii, - . [ ] marshall to pickering, march , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] _fifteenth annual report, proceedings, american colonization society._ the abolitionists, later, mercilessly attacked the colonization society. (see wilson: _rise of the slave power_, i, _et seq._) [ ] _fourteenth annual report, proceedings, american colonization society._ [ ] his wife's illness. she died soon afterwards. see _infra_, - . [ ] marshall to gurley, dec. , , _fifteenth annual report, proceedings, american colonization society_, pp. vi-viii. in a letter even less emotional than marshall's, madison favored the same plan. (_ib._ pp. v, vi.) lafayette, with his unfailing floridity, says that he is "proud ... of the honor of being one of the vice presidents of the society," and that "the progressing state of our liberia establishment is ... a source of enjoyment, and the most lively interest" to him. (_ib._ p. v.) at the time of his death, marshall was president of the virginia branch of the society, and his ancient enemy, john tyler, who succeeded him in that office, paid a remarkable tribute to the goodness and greatness of the man he had so long opposed. (tyler: _tyler_, i, - .) [ ] wheaton, . [ ] _ib._ . marshall delivered this opinion march , . [ ] _ib._ . [ ] _ib._ - . [ ] _ib._ - . [ ] peters, - . [ ] marshall to greenhow, oct. , , mss. "judges and eminent lawyers," mass. hist. soc. [ ] see _supra_, - , of this volume. [ ] wheaton, _et seq._ john saunders, a citizen of kentucky, sued george m. ogden, a citizen of louisiana, on bills of exchange which ogden, then a citizen of new york, had accepted in , but which were protested for non-payment. the defendant pleaded a discharge granted by a new york court under the insolvent law of that state enacted in . (_ib._) on the manuscript records of the supreme court, saunders is spelled _sanders_. after the case was filed, the death of ogden was suggested, and his executors, charles harrod and francis b. ogden, were substituted. [ ] washington, johnson, thompson, and trimble each delivered long opinions supporting this view. ( wheaton, - , - .) [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] story and duval concurred with marshall. [ ] wheaton, - . [ ] webster to biddle, feb. , , _writings and speeches of webster_: (nat. ed.) xvi, . [ ] wheaton, - . [ ] grigsby: _virginia convention of - _; and see ambler: _sectionalism in virginia_, . chapter v of professor ambler's book is devoted exclusively to the convention. also see preface to _debates va. conv._ iii; and see dodd, in _american journal of sociology_, xxvi, no. , _et seq._; and anderson, - . [ ] _debates, va. conv._ . [ ] _ib._ . [ ] _ib._ - . [ ] statement of marshall. (_ib._ .) [ ] _debates, va. conv._ . [ ] see _supra_, , . [ ] see giles's speech, _debates, va. conv._ - . [ ] see ambler: _sectionalism in virginia_, . [ ] see vol. ii, - , of this work. [ ] serious abuses sprang up, however. in the convention, william naylor of hampshire county charged that the office of sheriff was sold to the highest bidder, sometimes at public auction. (_debates, va. conv._ ; and see anderson, .) [ ] see marshall's defense of the county court system, _infra_, . [ ] see vol. i, , of this work. [ ] for example, thomas r. joynes of accomack county, who earnestly opposed marshall in the judiciary debate, said that no man felt "more respect" than he for marshall's opinions which are justly esteemed "not only in this convention, but throughout the united states." (_debates, va. conv._ .) randolph spoke of "the very great weight" which marshall had in the convention, in virginia, and throughout the nation. (_ib._ .) thomas m. bayly of accomack county, while utterly disagreeing with the chief justice on the county court system, declared that marshall, "as a lawyer and judge, is without a rival." (_ib._ .) richard h. henderson of loudoun county called the chief justice his "political father" whose lessons he delighted to follow, and upon whose "wisdom, ... virtue, ... prudence" he implicitly relied. (henderson's statement as repeated by benjamin w. leigh, _ib._ .) charles f. mercer of the same county "expressed toward judge marshall a filial respect and veneration not surpassed by the ties which had bound him to a natural parent." (_ib._ .) such are examples of the expressions toward marshall throughout the prolonged sessions of the convention. [ ] see vol. iii, chap, ii, of this work. [ ] _debates, va. conv._ - . [ ] _ib._ - . [ ] _debates, va. conv._ . [ ] see _infra_, - . [ ] accordingly the following provision was inserted into the constitution: "no law abolishing any court shall be construed to deprive a judge thereof of his office, unless two-thirds of the members of each house present concur in the passing thereof; but the legislature may assign other judicial duties to the judges of courts abolished by any law enacted by less than two-thirds of the members of each house present." (article v, section , constitution of virginia, .) [ ] _debates, va. conv._ . [ ] _debates, va. conv._ . [ ] _ib._ , , , , . [ ] _ib._ - . [ ] _ib._ . the provision as it finally appeared in the constitution was that these "appointments shall be made by the governor, on the recommendation of the respective county courts." (article v, section , constitution of virginia, .) [ ] _debates, va. conv._ - . [ ] see vol. iii, chap. ii, of this work. [ ] _debates, va. conv._ . [ ] _ib._ - . [ ] _ib._ . [ ] see vol. iii, chap. ii, of this work. [ ] _debates, va. conv._ . [ ] _debates, va. conv._ - . [ ] _debates, va. conv._ - . [ ] _debates, va. conv._ - . [ ] see especially the speech of benjamin watkins leigh, _ib._ - . [ ] see _ib._ for ayes and noes, , , , , . [ ] _ib._ . [ ] _debates, va. conv._ . [ ] _ib._ . [ ] compare marshall's report (_ib._ ) with article v of the constitution (_ib._ - ; and see _supra_, , note .) [ ] contrast marshall's resolutions (_debates, va. conv._ - ), which expressed the conservative stand, with those of william h. fitzhugh of fairfax county (_ib._ - ), of samuel clayton of campbell county (_ib._ ), of charles s. morgan of monongalia (_ib._ - ), and of alexander campbell of brooke county (_ib._ - ), which state the views of the radicals. [ ] see, for instance, the speech of john r. cooke of frederick county for the radicals (_debates, va. conv._ - ), of abel p. upshur of northampton for the conservatives (_ib._ - ), of philip doddridge of brooke county for the radicals (_ib._ - ), of philip p. barbour of orange county for the conservatives (_ib._ - ), and especially the speeches of benjamin watkins leigh for the conservatives (_ib._ - , - ). indeed, the student cannot well afford to omit any one of the addresses in this remarkable contest. [ ] it is at this point that we see the reason for jefferson's alarm thirteen years before the convention was called. (_see supra_, .) [ ] _debates, va. conv._ - . [ ] _debates, va. conv._ - . [ ] constitution of virginia, , article iii, sections and . [ ] _ib._ article iii, section . [ ] see _supra_, . [ ] see next chapter. [ ] march , . [ ] peters, . [ ] peters, . [ ] _ib._ . [ ] _ib._ . [ ] peters, - . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] see - . [ ] peters, - . [ ] _ib._ - . [ ] _ib._ . [ ] peters, . [ ] story to ticknor, jan. , , story, ii, . nevertheless story did not despair. "it is now whispered, that the demonstrations of public opinion are so strong, that the majority [of the judiciary committee] will conclude not to present their report." (_ib._) [ ] marshall to story, oct. , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] see _infra_, . [ ] _debates_, st cong. d sess. . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _debates_, st cong. d sess. - . [ ] _ib._ , ; and see vol. i, - , of this work. [ ] _debates_, st cong. d sess. . [ ] _debates_, st cong. d sess. . this was the last formal attempt, but one, made in congress during marshall's lifetime, to impair the efficiency of national courts. the final attack was made by joseph lecompte, a representative from kentucky, who on january , , offered a resolution instructing the judiciary committee to "inquire into the expediency of amending the constitution ... so that the judges of the supreme court, and of the inferior courts, shall hold their offices for a limited term of years." on february , the house, by a vote of to , refused to consider lecompte's resolution, ignoring his plea to be allowed to explain it. (_debates_, d cong. st sess. - .) so summary and brusque--almost contemptuous--was the rejection of lecompte's proposal, as almost to suggest that personal feeling was an element in the action taken by the house. chapter x the final conflict liberty and union, now and forever, one and inseparable. (daniel webster.) fellow citizens, the die is now cast. prepare for the crisis and meet it as becomes men and freemen. (south carolina ordinance of nullification.) the union has been prolonged thus far by miracles. i fear they cannot continue. (marshall.) it is time to be old, to take in sail. (emerson.) the last years of marshall's life were clouded with sadness, almost despair. his health failed; his wife died; the supreme court was successfully defied; his greatest opinion was repudiated and denounced by a strong and popular president; his associates on the bench were departing from some of his most cherished views; and the trend of public events convinced him that his labor to construct an enduring nation, to create institutions of orderly freedom, to introduce stability and system into democracy, had been in vain. yet, even in this unhappy period, there were hours of triumph for john marshall. he heard his doctrine of nationalism championed by daniel webster, who, in one of the greatest debates of history, used marshall's arguments and almost his very words; he beheld the militant assertion of the same principle by andrew jackson, who, in this instance, also employed marshall's reasoning and method of statement; and he witnessed the sudden flowering of public appreciation of his character and services. during the spring of , marshall found himself, for the first time in his life, suffering from acute pain. his richmond physician could give him no relief; and he became so despondent that he determined to resign immediately after the ensuing presidential election, in case jackson should be defeated, an event which many then thought probable. in a letter about the house at which the members of the supreme court were to board during the next term, marshall tells story of his purpose: "being ... a bird of passage, whose continuance with you cannot be long, i did not chuse to permit my convenience or my wishes to weigh a feather in the permanent arrangements.... but in addition, i felt serious doubts, although i did not mention them, whether i should be with you at the next term. "what i am about to say is, of course, in perfect confidence which i would not breathe to any other person whatever. i had unaccountably calculated on the election of p[residen]t taking place next fall, and had determined to make my continuance in office another year dependent on that event. "you know how much importance i attach to the character of the person who is to succeed me, and calculate the influence which probabilities on that subject would have on my continuance in office. this, however, is a matter of great delicacy on which i cannot and do not speak. "my erroneous calculation of the time of the election was corrected as soon as the pressure of official duty was removed from my mind, and i had nearly decided on my course, but recent events produce such real uncertainty respecting the future as to create doubts whether i ought not to await the same chances in the fall of which i had intended to await in the fall of ."[ ] marshall steadily became worse, and in september he went to philadelphia to consult the celebrated physician and surgeon, dr. philip syng physick, who at once perceived that the chief justice was suffering from stone in the bladder. his affliction could be relieved only by the painful and delicate operation of lithotomy, which dr. physick had introduced in america. from his sick-room marshall writes story of his condition during the previous five months, and adds that he looks "with impatience for the operation."[ ] he is still concerned about the court's boarding-place and again refers to his intention of leaving the bench: "in the course of the summer ... i found myself unequal to the effective consideration of any subject, and had determined to resign at the close of the year. this determination, however, i kept to myself, being determined to remain master of my own conduct." story had answered marshall's letter of june , evidently protesting against the thought of the chief justice giving up his office. marshall replies: "on the most interesting part of your letter i have felt, and still feel, great difficulty. you understand my general sentiments on that subject as well as i do myself. i am most earnestly attached to the character of the department, and to the wishes and convenience of those with whom it has been my pride and my happiness to be associated for so many years. i cannot be insensible to the gloom which lours over us. i have a repugnance to abandoning you under such circumstances which is almost invincible. but the solemn convictions of my judgement sustained by some pride of character admonish me not to hazard the disgrace of continuing in office a mere inefficient pageant."[ ] had adams been reëlected in , there can be no doubt that marshall would have resigned during that administration; and it is equally certain that, if jackson had been defeated in , the chief justice would have retired immediately. the democratic success in the election of that year determined him to hold on in an effort to keep the supreme court, as long as possible, unsubmerged by the rising tide of radical localism. perhaps he also clung to a desperate hope that, during his lifetime, a political reaction would occur and a conservative president be chosen who could appoint his successor. when marshall arrived at philadelphia, the bar of that city wished to give him a dinner, and, by way of invitation, adopted remarkable resolutions expressing their grateful praise and affectionate admiration. the afflicted chief justice, deeply touched, declined in a letter of singular grace and dignity: "it is impossible for me ... to do justice to the feelings with which i receive your very flattering address; ... to have performed the official duties assigned to me by my country in such a manner as to acquire the approbation of" the philadelphia bar, "affords me the highest gratification of which i am capable, and is more than an ample reward for the labor which those duties impose." marshall's greatest satisfaction, he says, is that he and his associates on the supreme bench "have never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required."[ ] the members of the bar then begged the chief justice to receive them "in a body" at "the united states courtroom"; and also to "permit his portrait to be taken" by "an eminent artist of this city."[ ] with anxiety, but calmness and even good humor, marshall awaited the operation. just before he went to the surgeon's table, dr. jacob randolph, who assisted dr. physick, found marshall eating a hearty breakfast. notwithstanding the pain he suffered, the chief justice laughingly explained that, since it might be the last meal he ever would enjoy, he had determined to make the most of it. he understood that the chances of surviving the operation were against him, but he was eager to take them, since he would rather die than continue to suffer the agony he had been enduring. while the long and excruciating operation went on, by which more than a thousand calculi were removed, marshall was placid, "scarcely uttering a murmur throughout the whole procedure." the physicians ascribed his recovery "in a great degree ... to his extraordinary self possession, and to the calm and philosophical views which he took of his case."[ ] marshall writes story about his experience and the results of the treatment, saying that he must take medicine "continually to prevent new formations," and adding, with humorous melancholy, that he "must submit too to a severe and most unsociable regimen." he cautions story to care for his own health, which judge peters had told him was bad. "without your vigorous and powerful co-operation i should be in despair, and think the 'ship must be given up.'"[ ] on learning of his improved condition, story writes peters from cambridge: "this seems to me a special interposition of providence in favor of the constitution.... he is beloved and reverenced here beyond all measure, though not beyond his merits. next to washington he stands the idol of all good men."[ ] while on this distressing visit to philadelphia, marshall writes his wife two letters--the last letters to her of which any originals or copies can be found. "i anticipate with a pleasure which i know you will share the time when i may sit by your side by our tranquil fire side & enjoy the happiness of your society without inflicting on you the pain of witnessing my suffering.... i am treated with the most flattering attentions in philadelphia. they give me pain, the more pain as the necessity of declining many of them may be ascribed to a want of sensibility."[ ] his recovery assured, marshall again writes his wife: "i have at length risen from my bed and am able to hold a pen. the most delightful use i can make of it is to tell you that i am getting well ... from the painful disease with which i have been so long affected.... nothing delights me so much as to hear from my friends and especially from you. how much was i gratified at the line from your own hand in mary's letter.[ ]... i am much obliged by your offer to lend me money.[ ] i hope i shall not need it but can not as yet speak positively as my stay has been longer and my expenses greater than i had anticipated on leaving home. should i use any part of it, you may be assured it will be replaced on my return. but this is a subject on which i know you feel no solicitude.... god bless you my dearest polly love to all our friends. ever your most affectionate j. marshall."[ ] on december , , his "dearest polly" died. the previous day, she hung about his neck a locket containing a wisp of her hair. for the remainder of his life he wore this memento, never parting with it night or day.[ ] her weakness, physical and mental, which prevailed throughout practically the whole of their married life, inspired in marshall a chivalric adoration. on the morning of the first anniversary of her death, story chanced to go into marshall's room and "found him in tears. he had just finished writing out for me some lines of general burgoyne, of which he spoke to me last evening as eminently beautiful and affecting.... i saw at once that he had been shedding tears over the memory of his own wife, and he has said to me several times during the term, that the moment he relaxes from business he feels exceedingly depressed, and rarely goes through a night without weeping over his departed wife.... i think he is the most extraordinary man i ever saw, for the depth and tenderness of his feelings."[ ] but marshall had also written something which he did not show even to story--a tribute to his wife: "this day of joy and festivity to the whole christian world is, to my sad heart, the anniversary of the keenest affliction which humanity can sustain. while all around is gladness, my mind dwells on the silent tomb, and cherishes the remembrance of the beloved object which it contains. "on the th of december, , it was the will of heaven to take to itself the companion who had sweetened the choicest part of my life, had rendered toil a pleasure, had partaken of all my feelings, and was enthroned in the inmost recess of my heart. never can i cease to feel the loss and to deplore it. grief for her is too sacred ever to be profaned on this day, which shall be, during my existence, marked by a recollection of her virtues. "on the d of january, , i was united by the holiest bonds to the woman i adored. from the moment of our union to that of our separation, i never ceased to thank heaven for this its best gift. not a moment passed in which i did not consider her as a blessing from which the chief happiness of my life was derived. this never-dying sentiment, originating in love, was cherished by a long and close observation of as amiable and estimable qualities as ever adorned the female bosom. to a person which in youth was very attractive, to manners uncommonly pleasing, she added a fine understanding, and the sweetest temper which can accompany a just and modest sense of what was due to herself. "she was educated with a profound reverence for religion, which she preserved to her last moments. this sentiment, among her earliest and deepest impressions, gave a colouring to her whole life. hers was the religion taught by the saviour of man. she was a firm believer in the faith inculcated by the church (episcopal) in which she was bred. "i have lost her, and with her have lost the solace of my life! yet she remains still the companion of my retired hours, still occupies my inmost bosom. when alone and unemployed, my mind still recurs to her. more than a thousand times since the th of december, , have i repeated to myself the beautiful lines written by general burgoyne, under a similar affliction, substituting 'mary' for 'anna': "'encompass'd in an angel's frame, an angel's virtues lay: too soon did heaven assert its claim and take its own away! my mary's worth, my mary's charms, can never more return! what now shall fill these widow'd arms? ah, me! my mary's urn! ah, me! ah, me! my mary's urn!'"[ ] after his wife's death, marshall arranged to live at "leeds manor," fauquier county, a large house on part of the fairfax estate which he had given to his son, james keith marshall. a room, with very thick walls to keep out the noise of his son's many children, was built for him, adjoining the main dwelling. here he brought his library, papers, and many personal belongings. his other sons and their families lived not far away; "leeds manor" was in the heart of the country where he had grown to early manhood; and there he expected to spend his few remaining years.[ ] he could not, however, tear himself from his richmond home, where he continued to live most of the time until his death.[ ] when fully recovered from his operation, marshall seemed to acquire fresh strength. he "is in excellent health, never better, and as firm and robust in mind as in body," story informs charles sumner.[ ] the chief justice was, however, profoundly depressed. the course that president jackson was then pursuing--his attitude toward the supreme court in the georgia controversy,[ ] his arbitrary and violent rule, his hostility to the second bank of the united states--alarmed and distressed marshall. [illustration: "_leeds manor_" _the principal house in the fairfax purchase and the home of marshall's son, james keith marshall, where he expected to spend his declining years._] the bank had finally justified the brightest predictions of its friends. everywhere in the country its notes were as good as gold, while abroad they were often above par.[ ] its stock was owned in every nation and widely distributed in america.[ ] up to the time when jackson began his warfare upon the bank, the financial management of nicholas biddle had been as brilliant as it was sound.[ ] but popular hostility to the bank had never ceased. in addition to the old animosity toward any central institution of finance, charges were made that directors of certain branches of the bank had used their power to interfere in politics. as implacable as they were unjust were the assaults made by democratic politicians upon jeremiah mason, director of the branch at portsmouth, new hampshire. had the bank consented to mason's removal, it is possible that jackson's warfare on it would not have been prosecuted.[ ] the bank's charter was to expire in . in his first annual message to congress the president briefly called attention to the question of rechartering the institution. the constitutionality of the bank act was doubtful at best, he intimated, and the bank certainly had not established a sound and uniform currency.[ ] in his next message, a year later, jackson repeated more strongly his attack upon the bank.[ ] two years afterwards, on the eve of the presidential campaign of , the friends of the bank in congress passed, by heavy majorities, a bill extending the charter for fifteen years after march , , the date of its expiration.[ ] the principal supporters of this measure were clay and webster and, indeed, most of the weighty men in the national legislature. but they were enemies of jackson, and he looked upon the rechartering of the bank as a personal affront. on july , , the bill was sent to the president. six days later he returned it with his veto. jackson's veto message was as able as it was cunning. parts of it were demagogic appeals to popular passion; but the heart of it was an attack upon marshall's opinions in m'culloch _vs._ maryland and osborn _vs._ the bank. the bank is a monopoly, its stockholders and directors a "privileged order"; worse still, the institution is rapidly passing into the hands of aliens--"already is almost a third of the stock in foreign hands." if we must have a bank, let it be "_purely american_." this aristocratic, monopolistic, un-american concern exists by the authority of an unconstitutional act of congress. even worse is the rechartering act which he now vetoed. the decision of the supreme court in the bank cases, settled nothing, said jackson. marshall's opinions were, for the most part, erroneous and "ought not to control the co-ordinate authorities of this government. the congress, the executive, and the court must each for itself be guided by its own opinion of the constitution.... it is as much the duty of the house of representatives, of the senate, and of the president to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. "the opinion of the judges has no more authority over congress than the opinion of congress has over the judges, and on that point the president is independent of both. the authority of the supreme court must not, therefore, be permitted to control the congress or the executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."[ ] but, says jackson, the court did not decide that "all features of this corporation are compatible with the constitution." he quotes--and puts in italics--marshall's statement that "_where the law is not prohibited and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground_." this language, insists jackson, means that "it is the exclusive province of congress and the president to decide whether the particular features of this act are _necessary_ and _proper_ ... and therefore constitutional, or _unnecessary_ and _improper_, and therefore unconstitutional."[ ] thereupon jackson points out what he considers to be the defects of the bill. congress has no power to "grant exclusive privileges or monopolies," except in the district of columbia and in the matter of patents and copyrights. "every act of congress, therefore, which attempts, by grants of monopolies or sale of exclusive privileges for a limited time, or a time without limit, to restrict or extinguish its own discretion in the choice of means to execute its delegated powers, is equivalent to a legislative amendment of the constitution, and palpably unconstitutional."[ ] jackson fiercely attacks marshall's opinion that the states cannot tax the national bank and its branches. the whole message is able, adroit, and, on its face, plainly intended as a campaign document.[ ] a shrewd appeal is made to the state banks. popular jealousy and suspicion of wealth and power are skillfully played upon: "the rich and powerful" always use governments for "their selfish purposes." when laws are passed "to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society--the farmers, mechanics, and laborers--who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their government. "there are no necessary evils in government," says jackson. "its evils exist only in its abuses. if it would confine itself to equal protection, and, as heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing"--thus he runs on to his conclusion.[ ] the masses of the people, particularly those of the south, responded with wild fervor to the president's assault upon the citadel of the "money power." john marshall, the defender of special privilege, had said that the bank law was protected by the constitution; but andrew jackson, the champion of the common people, declared that it was prohibited by the constitution. hats in the air, then, and loud cheers for the hero who had dared to attack and to overcome this financial monster as he had fought and beaten the invading british! marshall was infinitely disgusted. he informs story of virginia's applause of jackson's veto: "we are up to the chin in politics. virginia was always insane enough to be opposed to the bank of the united states, and therefore hurras for the veto. but we are a little doubtful how it may work in pennsylvania. it is not difficult to account for the part new york may take. she has sagacity enough to see her interest in putting down the present bank. her mercantile position gives her a controul, a commanding controul, over the currency and the exchanges of the country, if there be no bank of the united states. going for herself she may approve this policy; but virginia ought not to drudge for her benefit."[ ] jackson did not sign the bill for the improvement of rivers and harbors, passed at the previous session of congress, because, as he said, he had not "sufficient time ... to examine it before the adjournment."[ ] everybody took the withholding of his signature as a veto.[ ] this bill included a feasible project for making the virginia capital accessible to seagoing vessels. even this action of the president was applauded by virginians: "we show our wisdom most strikingly in approving the veto on the harbor bill also," marshall writes story. "that bill contained an appropriation intended to make richmond a seaport, which she is not at present, for large vessels fit to cross the atlantic. the appropriation was whittled down in the house of representatives to almost nothing.... yet we wished the appropriation because we were confident that congress when correctly informed, would add the necessary sum. this too is vetoed; and for this too our sagacious politicians are thankful. we seem to think it the summit of human wisdom, or rather of american patriotism, to preserve our poverty."[ ] during the presidential campaign of , marshall all but despaired of the future of the republic. the autocracy of jackson's reign; the popular enthusiasm which greeted his wildest departures from established usage and orderly government; the state of the public mind, indicated everywhere by the encouragement of those whom marshall believed to be theatrical and adventurous demagogues--all these circumstances perturbed and saddened him. and for the time being, his fears were wholly justified. triumphantly reëlected, jackson pursued the bank relentlessly. finally he ordered that the government funds should no longer be deposited in that hated institution. although that desperate act brought disaster on business throughout the land, it was acclaimed by the multitude. in alarm and despair, marshall writes story: "we [virginians] are insane on the subject of the bank. its friends, who are not numerous, dare not, a few excepted, to avow themselves."[ ] but the sudden increase and aggressiveness of disunion sentiment oppressed marshall more heavily than any other public circumstance of his last years. the immediate occasion for the recrudescence of localism was the tariff. since the tariff of the south had been discontented with the protection afforded the manufacturers of the north and east; and had made loud outcry against the protective tariff of . the southern people felt that their interests were sacrificed for the benefit of the manufacturing sections; they believed that all that they produced had to be sold in a cheap, unprotected market, and all that they purchased had to be bought in a dear, protected market; they were convinced that the protective tariff system, and, indeed, the whole nationalist policy, meant the ruin of the south. moreover, they began to see that the power that could enact a protective tariff, control commerce, make internal improvements, could also control slavery--perhaps abolish it.[ ] certainly that was "the spirit" of marshall's construction of the constitution, they said. "sir," exclaimed robert s. garnett of virginia during the debate in the house on the tariff of , "we must look very little to consequences if we do not perceive in the spirit of this construction, combined with the political fanaticism of the period, reason to anticipate, at no distant day, the usurpation, on the part of congress, of the right to legislate upon a subject which, if you once touch, will inevitably throw this country into revolution--i mean that of slavery.... can whole nations be mistaken? when i speak of nations, i mean virginia, the carolinas, and other great southern commonwealths."[ ] john carter of south carolina warned the house not to pass a law "which would, as to this portion of the union, be registered on our statute books as a dead letter."[ ] james hamilton, jr., of the same state, afterwards a nullification governor, asked: "is it nothing to weaken the attachment of one section of this confederacy to the bond of union?... is it nothing to sow the seeds of incurable alienation?"[ ] the tariff of alarmed and angered the southern people to the point of frenzy. "the interests of the south have been ... shamefully sacrificed!" cried hayne in the senate. "her feelings have been disregarded; her wishes slighted; her honest pride insulted!"[ ] so enraged were southern representatives that, for the most part, they declined to speak. hamilton expressed their sentiments. he disdained to enter into the "chaffering" about the details of the bill.[ ] "you are coercing us to inquire, whether we can afford to belong to a confederacy in which severe restrictions, tending to an ultimate prohibition of foreign commerce, is its established policy.[ ]... is it ... treason, sir, to tell you that there is a condition of public feeling throughout the southern part of this confederacy, which no prudent man will treat with contempt, and no man who loves his country will not desire to see allayed?[ ]... i trust, sir, that this cup may pass from us.... but, if an adverse destiny should be ours--if we are doomed to drink 'the waters of bitterness,' in their utmost woe, ... south carolina will be found on the side of those principles, standing firmly, on the very ground which is canonized by that revolution which has made us what we are, and imbued us with the spirit of a free and sovereign people."[ ] retaliation, even forcible resistance, was talked throughout the south when this "tariff of abominations," as the act of was called, became a law. the feeling in south carolina especially ran high. some of her ablest men proposed that the state should tax all articles[ ] protected by the tariff. pledges were made at public meetings not to buy protected goods manufactured in the north. at the largest gathering in the history of the state, resolutions were passed demanding that all trade with tariff states be stopped.[ ] nullification was proposed.[ ] the people wildly acclaimed such a method of righting their wrongs, and calhoun gave to the world his famous "exposition," a treatise based on the jeffersonian doctrine of thirty years previous.[ ] a little more than a year after the passage of the tariff of , and the publication of marshall's opinions in osborn _vs._ the bank and gibbons _vs._ ogden, jefferson had written giles of the "encroachments" by the national government, particularly by the supreme court and by congress. how should these invasions of the rights of the states be checked? "reason and argument? you might as well reason and argue with the marble columns encircling them [congress and the supreme court].... are we then _to stand to our arms_?... no. that must be the last resource." but the states should denounce the acts of usurpation "until their accumulation shall overweigh that of separation."[ ] jefferson's letter, written only six months before his death, was made public just as the tide of belligerent nullification was beginning to rise throughout the south.[ ] at the same time defiance of national authority came also from georgia, the cause being as distinct from the tariff as the principle of resistance was identical. this cause was the forcible seizure, by georgia, of the lands of the cherokee indians and the action of the supreme court in cases growing out of georgia's policy and the execution of it. by numerous treaties between the national government and the cherokee nation, the indians were guaranteed protection in the enjoyment of their lands. when georgia, in , ceded her claim to that vast territory stretching westward to the mississippi, it had been carefully provided that the lands of the indians should be preserved from seizure or entry without their consent, and that their rights should be defended from invasion or disturbance. the indian titles were to be extinguished, however, as soon as this could be done peaceably, and without inordinate expense. in , these georgia cherokees, who were highly civilized, adopted a constitution, set up a government of their own modeled upon that of the united states, and declared themselves a sovereign independent nation.[ ] immediately thereafter the legislature of georgia passed resolutions declaring that the cherokee lands belonged to the state "absolutely"--that the indians were only "tenants at her will"; that georgia had the right to, and would, extend her laws throughout her "conventional limits," and "coerce obedience to them from all descriptions of people, be they white, red, or black."[ ] deliberately, but without delay, the state enacted laws taking over the cherokee lands, dividing them into counties, and annulling "all laws, usages and customs" of the indians.[ ] the cherokees appealed to president jackson, who rebuffed them and upheld georgia.[ ] gold was discovered in the indian country, and white adventurers swarmed to the mines.[ ] georgia passed acts forbidding the indians to hold courts, or to make laws or regulations for the tribe. white persons found in the cherokee country without a license from the governor were, upon conviction, to be imprisoned at hard labor for four years. a state guard was established to "protect" the mines and arrest any one "detected in a violation of the laws of this state."[ ] still other acts equally oppressive were passed.[ ] on the advice of william wirt, then attorney-general of the united states, and of john sergeant of philadelphia, the indians applied to the supreme court for an injunction to stop georgia from executing these tyrannical statutes. the whole country was swept by a tempest of popular excitement. south and north took opposite sides. the doctrine of state rights, in whose name internal improvements, the tariff, the bank, and other nationalist measures had been opposed, was invoked in behalf of georgia. the administration tried to induce the cherokees to exchange their farms, mills, and stores in georgia for untamed lands in the indian territory. the indians sent a commission to investigate that far-off region, which reported that it was unfit for agriculture and that, once there, the cherokees would have to fight savage tribes.[ ] again they appealed to the president; again jackson told them that georgia had absolute authority over them. angry debates arose in congress over a bill to send the reluctant natives to the wilds of the then remote west.[ ] such was the origin of the case of the cherokee nation _vs._ the state of georgia.[ ] at wirt's request, judge dabney carr laid the whole matter before marshall, wirt having determined to proceed with it or to drop it as the chief justice should advise. marshall, of course, declined to express any opinion on the legal questions involved: "i have followed the debate in both houses of congress, with profound attention and with deep interest, and have wished, most sincerely, that both the executive and legislative departments had thought differently on the subject. humanity must bewail the course which is pursued, whatever may be the decision of policy."[ ] before the case could be heard by the supreme court, georgia availed herself of an opportunity to show her contempt for the national judiciary and to assert her "sovereign rights." a cherokee named george tassels was convicted of murder in the superior court of hall county, georgia, and lay in jail until the sentence of death should be executed. a writ of error from the supreme court was obtained, and georgia was ordered to appear before that tribunal and defend the judgment of the state court. the order was signed by marshall. georgia's reply was as insulting and belligerent as it was prompt and spirited. the legislature resolved that "the interference by the chief justice of the supreme court of the u. states, in the administration of the criminal laws of this state, ... is a flagrant violation of her rights"; that the governor "and every other officer of this state" be directed to "disregard any and every mandate and process ... purporting to proceed from the chief justice or any associate justice of the supreme court of the united states"; that the governor be "authorised and required, with all the force and means ... at his command ... to resist and repel any and every invasion from whatever quarter, upon the administration of the criminal laws of this state"; that georgia refuses to become a party to "the case sought to be made before the supreme court"; and that the governor, "by express," direct the sheriff of hall county to execute the law in the case of george tassels.[ ] five days later, tassels was hanged,[ ] and the supreme court of the united states, powerless to vindicate its authority, defied and insulted by a "sovereign" state, abandoned by the administration, was humiliated and helpless. when he went home on the evening of january , , john quincy adams, now a member of congress, wrote in his diary that "the resolutions of the legislature of georgia setting at defiance the supreme court of the united states are published and approved in the telegraph, the administration newspaper at this place.... the constitution, the laws and treaties of the united states are prostrate in the state of georgia. is there any remedy for this state of things? none. because the executive of the united states is in league with the state of georgia.... this example ... will be imitated by other states, and with regard to other national interests--perhaps the tariff.... the union is in the most imminent danger of dissolution.... the ship is about to founder."[ ] meanwhile the cherokee nation brought its suit in the supreme court to enjoin the state from executing its laws, and at the february term of it was argued for the indians by wirt and sergeant. georgia disdained to appear--not for a moment would that proud state admit that the supreme court of the nation could exercise any authority whatever over her.[ ] on march , , marshall delivered the opinion of the majority of the court, and in it he laid down the broad policy which the government has unwaveringly pursued ever since. at the outset the chief justice plainly stated that his sympathies were with the indians,[ ] but that the court could not examine the merits or go into the moralities of the controversy, because it had no jurisdiction. the cherokees sued as a foreign nation, but, while they did indeed constitute a separate state, they were not a foreign nation. the relation of the indians to the united states is "unlike that of any other two people in existence." the territory comprises a "part of the united states."[ ] in our foreign affairs and commercial regulations, the indians are subject to the control of the national government. "they acknowledge themselves in their treaties to be under the protection of the united states." they are not, then, foreign nations, but rather "domestic dependent nations.... they are in a state of pupilage." foreign governments consider them so completely under our "sovereignty and dominion" that it is universally conceded that the acquisition of their lands or the making of treaties with them would be "an invasion of our territory, and an act of hostility." by the constitution power is given congress to regulate commerce among the states, with foreign nations, and with indian tribes, these terms being "entirely distinct."[ ] the cherokees not being a foreign nation, the supreme court has no jurisdiction in a suit brought by them in that capacity, said marshall. furthermore, the court was asked "to control the legislature of georgia, and to restrain the exertion of its physical force"--a very questionable "interposition," which "savors too much of the exercise of political power to be within the proper province of the judicial department." in "a proper case with proper parties," the court might, perhaps, decide "the mere question of right" to the indian lands. but the suit of the cherokee nation against georgia is not such a case. marshall closes with a reflection upon jackson in terms much like those with which, many years earlier, he had so often rebuked jefferson: "if it be true that the cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. if it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future."[ ] in this opinion the moral force of marshall was displayed almost as much as in the case of the schooner exchange.[ ] he was friendly to the whole indian race; he particularly detested georgia's treatment of the cherokees; he utterly rejected the state rights theory on which the state had acted; and he could easily have decided in favor of the wronged and harried indians, as the dissent of thompson and story proves. but the statesman and jurist again rose above the man of sentiment, law above emotion, the enduring above the transient. as a "foreign state" the indians had lost, but the constitutionality of georgia's cherokee statutes had not been affirmed. wirt and sergeant had erred as to the method of attacking that legislation. another proceeding by georgia, however, soon brought the validity of her expansion laws before the supreme court. among the missionaries who for years had labored in the cherokee nation was one samuel a. worcester, a citizen of vermont. this brave minister, licensed by the national government, employed by the american board of commissioners for foreign missions, appointed by president john quincy adams to be postmaster at new echota, a cherokee town, refused, in company with several other missionaries, to leave the indian country. worcester and a reverend mr. thompson were arrested by the georgia guard. the superior court of gwinnett county released them, however, on a writ of habeas corpus, because, both being licensed missionaries expending national funds appropriated for civilizing indians, they must be considered as agents of the national government. moreover, worcester was postmaster at new echota. georgia demanded his removal and inquired of jackson whether the missionaries were government agents. the president assured the state that they were not, and removed worcester from office.[ ] thereupon both worcester and thompson were promptly ordered to leave the state. but they and some other missionaries remained, and were arrested; dragged to prison--some of them with chains around their necks;[ ] tried and convicted. nine were pardoned upon their promise to depart forthwith from georgia. but worcester and one elizur butler sternly rejected the offer of clemency on such a condition and were put to hard labor in the penitentiary. from the judgment of the georgia court, worcester and butler appealed to the supreme court of the united states. once more marshall and georgia confronted each other; again the chief justice faced a hostile president far more direct and forcible than jefferson, but totally lacking in the subtlety and skill of that incomparable politician. thrilling and highly colored accounts of the treatment of the missionaries had been published in every northern newspaper; religious journals made conspicuous display of soul-stirring narratives of the whole subject; feeling in the north ran high; resentment in the south rose to an equal degree. this time georgia did more than ignore the supreme court as in the case of george tassels and in the suit of the cherokee nation; she formally refused to appear; formally denied the right of that tribunal to pass upon the decisions of her courts.[ ] never would georgia so "compromit her dignity as a sovereign state," never so "yield her rights as a member of the confederacy." the new governor, wilson lumpkin, avowed that he would defend those rights by every means in his power.[ ] when the case of worcester _vs._ georgia came on for hearing before the supreme court, no one answered for the state. wirt, sergeant, and elisha w. chester appeared for the missionaries as they had for the indians.[ ] wirt and sergeant made extended and powerful arguments.[ ] marshall's opinion, delivered march , , is one of the noblest he ever wrote. "the legislative power of a state, the controlling power of the constitution and laws of the united states, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved," begins the aged chief justice.[ ] does the act of the legislature of georgia, under which worcester was convicted, violate the constitution, laws, and treaties of the united states?[ ] that act is "an assertion of jurisdiction over the cherokee nation."[ ] he then goes into a long historical review of the relative titles of the natives and of the white discoverers of america; of the effect upon these titles of the numerous treaties with the indians; of the acts of congress relating to the red men and their lands; and of previous laws of georgia on these subjects.[ ] this part of his opinion is the most extended and exhaustive historical analysis marshall ever made in any judicial utterance, except that on the law of treason during the trial of aaron burr.[ ] then comes his condensed, unanswerable, brilliant conclusion: "a weaker power does not surrender its independence, its rights to self-government, by associating with a stronger, and taking its protection. a weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of self-government, and ceasing to be a state.... the cherokee nation ... is a distinct community, occupying its own territory ... in which the laws of georgia can have no force, and which the citizens of georgia have no right to enter but with the assent of the cherokees themselves, or in conformity with treaties, and with the acts of congress. the whole intercourse between the united states and this nation is by our constitution and laws vested in the government of the united states." the cherokee acts of the georgia legislature "are repugnant to the constitution, laws and treaties of the united states. they interfere forcibly with the relations established between the united states and the cherokee nation." this controlling fact the laws of georgia ignore. they violently disrupt the relations between the indians and the united states; they are equally antagonistic to acts of congress based upon these treaties. moreover, "the forcible seizure and abduction" of worcester, "who was residing in the nation with its permission and by authority of the president of the united states, is also a violation of the acts which authorize the chief magistrate to exercise this authority." marshall closes with a passage of eloquence almost equal to, and of higher moral grandeur than, the finest passages in m'culloch _vs._ maryland and in cohens _vs._ virginia. so the decision of the court was that the judgment of the georgia court be "reversed and annulled."[ ] congress was intensely excited by marshall's opinion; georgia was enraged; the president agitated and belligerent. in a letter to ticknor, written five days after the judgment of the court was announced, story accurately portrays the situation: "the decision produced a very strong sensation in both houses; georgia is full of anger and violence.... probably she will resist the execution of our judgement, & if she does i do not believe the president will interfere.... the court has done its duty. let the nation do theirs. if we have a government let its commands be obeyed; if we have not it is as well to know it at once, & to look to consequences."[ ] story's forecast was justified. georgia scoffed at marshall's opinion, flouted the mandate of the supreme court. "usurpation!" cried governor lumpkin. he would meet it "with the spirit of determined resistance."[ ] jackson defied the chief justice. "john marshall has made his decision:--_now let him enforce it_!" the president is reported to have said.[ ] again the supreme court found itself powerless; the judgment in worcester _vs._ georgia came to nothing; the mandate was never obeyed, never heeded.[ ] for the time being, marshall was defeated; nationalism was prostrate; localism erect, strong, aggressive. soon, however, marshall and nationalism were to be sustained, for the moment, by the man most dreaded by the chief justice, most trusted by marshall's foes. andrew jackson was to astound the country by the greatest and most illogical act of his strange career--the issuance of his immortal proclamation against nullification. georgia's very first assertion of her "sovereignty" in the indian controversy had strengthened south carolina's fast growing determination to resist the execution of the tariff law. on january , , senator robert young hayne of south carolina, in his brilliant challenge to webster, set forth the philosophy of nullification: "sir, if, the measures of the federal government were less oppressive, we should still strive against this usurpation. the south is acting on a principle she has always held sacred--resistance to unauthorized taxation."[ ] webster's immortal reply, so far as his constitutional argument is concerned, is little more than a condensation of the nationalist opinions of john marshall stated in popular and dramatic language. indeed, some of webster's sentences are practically mere repetitions of marshall's, and his reasoning is wholly that of the chief justice. "we look upon the states, not as separated, but as united under the same general government, having interests, common, associated, intermingled. in war and peace, we are one; in commerce, one; because the authority of the general government reaches to war and peace, and to the regulation of commerce."[ ] what is the capital question in dispute? it is this: "whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?"[ ] can states decide? can states "annul the law of congress"? hayne, expressing the view of south carolina, had declared that they could. he had based his argument upon the kentucky and virginia resolutions--upon the theory that the states, and not the people, had created the constitution; that the states, and not the people, had established the general government. but is this true? asked webster. he answered by paraphrasing marshall's words in m'culloch _vs._ maryland: "it is, sir, the people's constitution, the people's government; made for the people; made by the people; and answerable to the people.[ ] the people ... have declared that this constitution shall be the supreme law....[ ] who is to judge between the people and the government?"[ ] the constitution settles that question by declaring that "the judicial power shall extend to all cases arising under the constitution and laws."[ ] because of this the union is secure and strong. "instead of one tribunal, established by all, responsible to all, with power to decide for all, shall constitutional questions be left to four and twenty popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others?"[ ] then webster swept grandly forward to that famous peroration ending with the words which in time became the inspiring motto of the whole american people: "liberty _and_ union, now and forever, one and inseparable!"[ ] immediately after the debate between hayne and webster, nullification gathered force in south carolina. early in the autumn of , governor stephen decatur miller spoke at a meeting of the sumter district of that state. he urged that a state convention be called for the purpose of declaring null and void the tariff of . probably the national courts would try to enforce that law, he said, but south carolina would "refuse to sustain" it. nullification involved no danger, and if it did, what matter!--"those who fear to defend their rights, have none. their property belongs to the banditti: they are only tenants at will of their own firesides."[ ] public excitement steadily increased; at largely attended meetings ominous resolutions were adopted. "the attitude which the federal government continues to assume towards the southern states, calls for decisive and unequivocal resistance." so ran a typical declaration of a gathering of citizens of georgetown, south carolina, in december, .[ ] in the senate, josiah stoddard johnston of louisiana, but connecticut-born, made a speech denouncing the doctrine of nullification, asserting the supremacy of the national government, and declaring that the supreme court was the final judge of the constitutionality of legislation. "it has fulfilled the design of its institution; ... it has given form and consistency to the constitution, and uniformity to the laws."[ ] nullification, said johnston, means "either disunion, or civil war; or, in the language of the times, disunion and blood."[ ] the louisiana senator sent his speech to marshall, who answered that "it certainly is not among the least extraordinary of the doctrines of the present day that such a question [nullification] should be seriously debated."[ ] all nullification arguments were based on the kentucky and virginia resolutions. madison was still living, and edward everett asked him for his views. in a letter almost as nationalist as marshall's opinions, the venerable statesman replied at great length and with all the ability and clearness of his best years. the decision by states of the constitutionality of acts of congress would destroy the nation, he wrote. such decision was the province of the national judiciary. while the supreme court had been criticized, perhaps justly in some cases, "still it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation." it was absurd to deny the "supremacy of the judicial power of the u. s. & denounce at the same time nullifying power in a state.... a law of the land" cannot be supreme "without a supremacy in the exposition & execution of the law." nullification was utterly destructive of the constitution and the union.[ ] this letter, printed in the _north american review_,[ ] made a strong impression on the north, but it only irritated the south. marshall read it "with peculiar pleasure," he wrote story: "m^r madison ... is himself again. he avows the opinions of his best days, and must be pardoned for his oblique insinuations that some of the opinions of our court are not approved. contrast this delicate hint with the language m^r jefferson has applied to us. he [madison] is attacked ... by our enquirer, who has arrayed his report of against his letter. i never thought that report could be completely defended; but m^r madison has placed it upon its best ground, that the language is incautious, but is intended to be confined to a mere declaration of opinion, or is intended to refer to that ultimate right which all admit, to resist despotism, a right not exercised under a constitution, but in opposition to it."[ ] at a banquet on april , , in celebration of jefferson's birthday, jackson had given a warning not to be misunderstood except by nullifiers who had been blinded and deafened by their new political religion. "the federal union;--it must be preserved," was the solemn and inspiring toast proposed by the president. southern leaders gave no heed. they apparently thought that jackson meant to endorse nullification, which, most illogically, they always declared to be the only method of preserving the union peaceably. their denunciation of the tariff grew ever louder; their insistence on nullification ever fiercer, ever more determined. to a committee of south carolina union men who invited him to their fourth of july celebration at charleston in , jackson sent a letter which plainly informed the nullifiers that if they attempted to carry out their threats, the national government would forcibly suppress them.[ ] at last the eyes of the south were opened. at last the south understood the immediate purpose of that enigmatic and self-contradictory man who ruled america, at times, in the spirit of the czars of russia; at times, in the spirit of the most compromising of opportunists. jackson's outgiving served only to enrage the south and especially south carolina. the legislature of that state replied to the president's letter thus: "is this legislature to be schooled and rated by the president of the united states? is it to legislate under the sword of the commander-in-chief?... this is a confederacy of sovereign states, and each may withdraw from the confederacy when it chooses."[ ] marshall saw clearly what the outcome was likely to be, but yielded slowly to the despair so soon to master him. "things to the south wear a very serious aspect," he tells story. "if we can trust appearances the leaders are determined to risk all the consequences of dismemberment. i cannot entirely dismiss the hope that they may be deserted by their followers--at least to such an extent as to produce a pause at the rubicon. they undoubtedly believe that virginia will support them. i think they are mistaken both with respect to virginia and north carolina. i do not think either state will embrace this mad and wicked measure. new hampshire and maine seem to belong to the tropics. it is time for new hampshire to part with webster and mason. she has no longer any use for such men."[ ] as the troubled weeks passed, marshall's apprehension increased. story, profoundly concerned, wrote the chief justice that he could see no light in the increasing darkness. "if the prospects of our country inspire you with gloom," answered marshall, "how do you think a man must be affected who partakes of all your opinions and whose geographical position enables him to see a great deal that is concealed from you? i yield slowly and reluctantly to the conviction that our constitution cannot last. i had supposed that north of the potowmack a firm and solid government competent to the security of rational liberty might be preserved. even that now seems doubtful. the case of the south seems to me to be desperate. our opinions are incompatible with a united government even among ourselves. the union has been prolonged thus far by miracles. i fear they cannot continue."[ ] congress heeded the violent protest of south carolina--perhaps it would be more accurate to say that congress obeyed andrew jackson. in it reduced tariff duties; but the protective policy was retained. the south was infuriated--if the principle were recognized, said southern men, what could they expect at a later day when this capitalistic, manufacturing north would be still stronger and the unmoneyed and agricultural south still weaker? south carolina especially was frantic. the spirit of the state was accurately expressed by r. barnwell smith at a fourth of july celebration: "if the fire and the sword of war are to be brought to our dwellings, ... let them come! whilst a bush grows which may be dabbled with blood, or a pine tree stands to support a rifle, let them come!"[ ] at meetings all over the state treasonable words were spoken. governor james hamilton, jr., convened the legislature in special session and the election of a state convention was ordered. "let us act, next october, at the ballot box--next november, in the state house--and afterwards, should any further action be necessary, let it be where our ancestors acted, _in the field of battle_";[ ] such were the toasts proposed at banquets, such the sentiments adopted at meetings. on november , , the state convention, elected[ ] to consider the new tariff law, adopted the famous nullification ordinance which declared that the tariff acts of and were "null, void, and no law"; directed the legislature to take measures to prevent the enforcement of those acts within south carolina; forbade appeal to the supreme court of the united states from south carolina courts in any case where the tariff law was involved; and required all state officers, civil and military, to take oath to "obey, execute and enforce this ordinance, and such act or acts of the legislature as may be passed in pursuance thereof." the ordinance set forth that "we, the people of south carolina, ... _do further declare_, that we will not submit to the application of force, on the part of the federal government, to reduce this state to obedience; but that we will consider" any act of the national government to enforce the tariff laws "as inconsistent with the longer continuance of south carolina in the union: and that the people of this state ... will forthwith proceed to organize a separate government, and to do all other acts and things which sovereign and independent states may of right do."[ ] thereupon the convention issued an address to the people.[ ] it was long and, from the nullification point of view, very able; it ended in an exalted, passionate appeal: "fellow citizens, the die is now cast. no more taxes shall be paid here.... prepare for the crisis, and ... meet it as becomes men and freemen.... fellow citizens, do your duty to your country, and leave the consequences to god."[ ] excepting only at the outbreak of war could a people be more deeply stirred than were all americans by the desperate action of south carolina. in the north great union meetings were held, fervid speeches made, warlike resolutions adopted. the south, at first, seemed dazed. was war at hand? this was the question every man asked of his neighbor. a pamphlet on the situation, written by some one in a state of great emotion, had been sent to marshall, and judge peters had inquired about it, giving at the same time the name of the author. "i am not surprised," answered marshall, "that he [the author] is excited by the doctrine of nullification. it is well calculated to produce excitement in all.... leaving it to the courts and the custom house will be leaving it to triumphant victory, and to victory which must be attended with more pernicious consequences to our country and with more fatal consequences to its reputation than victory achieved in any other mode which rational men can devise."[ ] if nullification must prevail, john marshall preferred that it should win by the sword rather than through the intimidation of courts. jackson rightly felt that his reëlection meant that the country in general approved of his attitude toward nullification as well as that toward the bank. he promptly answered the defiance of south carolina. on december , , he issued his historic proclamation. written by edward livingston,[ ] secretary of state, it is one of the ablest of american state papers. moderate in expression, simple in style, solid in logic, it might have been composed by marshall himself. it is, indeed, a restatement of marshall's nationalist reasoning and conclusions. like the argument in webster's reply to hayne, jackson's nullification proclamation was a repetition of those views of the constitution and of the nature of the american government for which marshall had been fighting since washington was made president. as in webster's great speech, sentences and paragraphs are in almost the very words used by marshall in his constitutional opinions, so in jackson's proclamation the same parallelism exists. gently, but firmly, and with tremendous force, in the style and spirit of abraham lincoln rather than of andrew jackson, the proclamation makes clear that the national laws will be executed and resistance to them will be put down by force of arms.[ ] the proclamation was a triumph for marshall. that the man whom he distrusted and of whom he so disapproved, whose election he had thought to be equivalent to a dissolution of the union, should turn out to be the stern defender of national solidarity, was, to marshall, another of those miracles which so often had saved the republic. his disapproval of jackson's rampant democracy, and whimsical yet arbitrary executive conduct, turned at once to hearty commendation. "since his last proclamation and message," testifies story, "the chief justice and myself have become his warmest supporters, and shall continue so just as long as he maintains the principles contained in them. who would have dreamed of such an occurrence?"[ ] marshall realized, nevertheless, that even the bold course pursued by the president could not permanently overcome the secession convictions of the southern people. the union men of south carolina who, from the beginning of the nullification movement, had striven earnestly to stay its progress, rallied manfully.[ ] their efforts were futile--disunion sentiment swept the state. "with ... indignation and contempt," with "defiance and scorn," most south carolinians greeted the proclamation[ ] of the man who, only three years before, had been their idol. to south carolinians jackson was now "a tyrant," a would-be "cæsar," a "cromwell," a "bonaparte."[ ] the legislature formally requested hayne, now governor, to issue a counter-proclamation,[ ] and adopted spirited resolutions declaring the right of any state "to secede peaceably from the union." one count in south carolina's indictment of the president was thoroughly justified--his approval of georgia's defiance of marshall and the supreme court. jackson's action, declared the resolutions, was the more "extraordinary, that he has silently, and ... with entire approbation, witnessed our sister state of georgia avow, act upon, and carry into effect, even to the taking of life, principles identical with those now denounced by him in south carolina." the legislature finally resolved that the state would "repel force by force, and, relying upon the blessing of god, will maintain its liberty at all hazards."[ ] swiftly hayne published his reply to the president's proclamation. it summed up all the arguments for the right of a state to decide the constitutionality of acts of congress, that had been made since the kentucky resolutions were written by jefferson--that "great apostle of american liberty ... who has consecrated these principles, and left them as a legacy to the american people, recorded by his own hand." it was jefferson, said hayne, who had first penned the immortal truth that "nullification" of unconstitutional acts of congress was the "rightful remedy" of the states.[ ] in his proclamation jackson had referred to the national judiciary as the ultimate arbiter of the constitutionality of national laws. how absurd such a claim by such a man, since that doctrine "has been denied by none more strongly than the president himself" in the bank controversy and in the case of the cherokees! "and yet when it serves the purpose of bringing odium on south carolina, 'his native state,' the president has no hesitation in regarding the attempt of a state to release herself from the control of the federal judiciary, in a matter affecting her sovereign rights, as a violation of the constitution."[ ] in closing, governor hayne declares that "the time has come when it must be seen, whether the people of the several states have indeed lost the spirit of the revolution, and whether they are to become the willing instruments of an unhallowed despotism. in such a sacred cause, south carolina will feel that she is not striking for her own, but the liberties of the union and the rights of man."[ ] instantly[ ] the legislature enacted one law to prevent the collection of tariff duties in south carolina;[ ] another authorizing the governor to "order into service the whole military force of this state" to resist any attempt of the national government to enforce the tariff acts.[ ] even before hayne's proclamation was published, extensive laws had been passed for the reorganization of the militia, and the legislature now continued to enact similar legislation. in four days fourteen such acts were passed.[ ] the spirit and consistency of south carolina were as admirable as her theory was erroneous and narrow. if she meant what she had said, the state could have taken no other course. if, moreover, she really intended to resist the national government, jackson had given cause for south carolina's militant action. as soon as the legislature ordered the calling of the state convention to consider the tariff, the president directed the collector at charleston to use every resource at the command of the government to collect tariff duties. the commanders of the forts at charleston were ordered to be in readiness to repel any attack. general scott was sent to the scene of the disturbance. military and naval dispositions were made so as to enable the national government to strike quickly and effectively.[ ] throughout south carolina the rolling of drums and blare of bugles were heard. everywhere was seen the blue cockade with palmetto button.[ ] volunteers were called for,[ ] and offered themselves by thousands; in certain districts "almost the entire population" enlisted.[ ] some regiments adopted a new flag, a banner of red with a single black star in the center.[ ] jackson attempted to placate the enraged and determined state. in his fourth annual message to congress he barely mentioned south carolina's defiance, but, for the second time, urgently recommended a reduction of tariff duties. protection, he said, "must be ultimately limited to those articles of domestic manufacture which are indispensable to our safety in time of war.... beyond this object we have already seen the operation of the system productive of discontent."[ ] other southern states, although firmly believing in south carolina's principles and sympathetic with her cause, were alarmed by her bold course. virginia essayed the rôle of mediator between her warlike sister and the "usurping" national government. in his message to the legislature, governor john floyd stoutly defended south carolina--"the land of sumpter [_sic_] and of marion." "should force be resorted to by the federal government, the horror of the scenes hereafter to be witnessed cannot now be pictured.... what surety has any state for her existence as a sovereign, if a difference of opinion should be punished by the sword as treason?" the situation calls for a reference of the whole question to "the people of the states. on you depends in a high degree the future destiny of this republic. it is for you now to say whether the brand of civil war shall be thrown into the midst of these states."[ ] mediative resolutions were instantly offered for the appointment of a committee "to take into consideration the relations existing between the state of south carolina and the government of the united states," and the results to each and to virginia flowing from the ordinance of nullification and jackson's proclamation. the committee was to report "such measures as ... it may be expedient for virginia to adopt--the propriety of recommending a general convention to the states--and such a declaration of our views and opinions as it may be proper for her to express in the present fearful impending crisis, for the protection of the right of the states, the restoration of harmony, and the preservation of the union."[ ] only five members voted against the resolution.[ ] the committee was appointed and, on december , , reported a set of resolutions--"worlds of words," as niles aptly called them--disapproving jackson's proclamation; applauding his recommendation to congress that the tariff be reduced; regretting south carolina's hasty action; deprecating "the intervention of arms on either side"; entreating "our brethren in s. carolina to pause in their career"; appealing to jackson "to withstay the arm of force"; instructing virginia senators and requesting virginia representatives in congress to do their best to "procure an immediate reduction of the tariff"; and appointing two commissioners to visit south carolina with a view to securing an adjustment of the dispute.[ ] with painful anxiety and grave alarm, marshall, then in richmond, watched the tragic yet absurd procession of events. much as the doings and sayings of the mediators and sympathizers with nullification irritated him, serious as were his forebodings, the situation appealed to his sense of humor. he wrote story an account of what was going on in virginia. no abler or more accurate statement of the conditions and tendencies of the period exists. marshall's letter is a document of historical importance. it reveals, too, the character of the man. it was written in acknowledgment of the receipt of "a proof sheet" of a page of story's "commentaries on the constitution of the united states," dedicating that work to marshall. "i am ... deeply penetrated," says marshall, "by the evidence it affords of the continuance of that partial esteem and friendship which i have cherished for so many years, and still cherish as one of the choicest treasures of my life. the only return i can make is locked up in my own bosom, or communicated in occasional conversation with my friends." he congratulates story on having finished his "herculean task." he is sure that story has accomplished it with ability and "correctness," and is "certain in advance" that he will read "every sentence with entire approbation. it is a subject on which we concur exactly. our opinions on it are, i believe, identical. not so with virginia or the south generally." marshall then relates what has happened in richmond: "our legislature is now in session, and the dominant party receives the message of the president to congress with enthusiastic applause. quite different was the effect of his proclamation. that paper astonished, confounded, and for a moment silenced them. in a short time, however, the power of speech was recovered, and was employed in bestowing on its author the only epithet which could possibly weigh in the scales against the name of 'andrew jackson,' and countervail its popularity. "imitating the quaker who said the dog he wished to destroy was mad, they said andrew jackson had become a federalist, even an ultra federalist. to have said he was ready to break down and trample on every other department of the government would not have injured him, but to say that he was a federalist--a convert to the opinions of washington, was a mortal blow under which he is yet staggering. "the party seems to be divided. those who are still true to their president pass by his denunciation of all their former theories; and though they will not approve the sound opinions avowed in his proclamation are ready to denounce nullification and to support him in maintaining the union. this is going a great way for them--much farther than their former declarations would justify the expectation of, and much farther than mere love of union would carry them. "you have undoubtedly seen the message of our governor and the resolutions reported by the committee to whom it was referred--a message and resolutions which you will think skillfully framed had the object been a civil war. they undoubtedly hold out to south carolina the expectation of support from virginia; and that hope must be the foundation on which they have constructed their plan for a southern confederacy or league. "a want of confidence in the present support of the people will prevent any direct avowal in favor of this scheme by those whose theories and whose secret wishes may lead to it; but the people may be so entangled by the insane dogmas which have become axioms in the political creed of virginia, and involved so inextricably in the labyrinth into which those dogmas conduct them, as to do what their sober judgement disapproves. "on thursday these resolutions are to be taken up, and the debate will, i doubt not, be ardent and tempestuous enough. i pretend not to anticipate the result. should it countenance the obvious design of south carolina to form a southern confederacy, it may conduce to a southern league--never to a southern government. our theories are incompatible with a government for more than a single state. we can form no union which shall be closer than an alliance between sovereigns. "in this event there is some reason to apprehend internal convulsion. the northern and western section of our state, should a union be maintained north of the potowmack, will not readily connect itself with the south. at least such is the present belief of their most intelligent men. any effort on their part to separate from southern virginia and unite with a northern confederacy may probably be punished as treason. 'we have fallen on evil times.'" story had sent marshall, webster's speech at faneuil hall, december , , in which he declared that he approved the "general principles" of jackson's proclamation, and that "nullification ... is but another name for civil war." "i am," said webster, "for the union as it is; ... for the constitution as it is." he pledged his support to the president in "maintaining this union."[ ] marshall was delighted: "i thank you for m^r webster's speech. entertaining the opinion he has expressed respecting the general course of the administration, his patriotism is entitled to the more credit for the determination he expressed at faneuil hall to support it in the great effort it promises to make for the preservation of the union. no member of the then opposition avowed a similar determination during the western insurrection, which would have been equally fatal had it not been quelled by the well timed vigor of general washington. "we are now gathering the bitter fruits of the tree even before that time planted by m^r jefferson, and so industriously and perseveringly cultivated by virginia."[ ] marshall's predictions of a tempestuous debate over the virginia resolutions were fulfilled. they were, in fact, "debated to death," records niles. "it would seem that the genuine spirit of 'ancient _dominionism_' would lead to a making of speeches, even in 'the cave of the cyclops when forging thunderbolts,' instead of striking the hammers from the hands of the workers of iniquity. well--the matter was debated, and debated and debated.... the proceedings ... were measured by the _square yard_." at last, however, resolutions were adopted. these resolutions "respectfully requested and entreated" south carolina to rescind her ordinance of nullification; "respectfully requested and entreated" congress to "modify" the tariff; reaffirmed virginia's faith in the principles of - , but held that these principles did not justify south carolina's ordinance or jackson's proclamation; and finally, authorized the appointment of one commissioner to south carolina to communicate virginia's resolutions, expressing at the same time, however, "our sincere good will to our sister state, and our anxious solicitude that the kind and respectful recommendations we have addressed to her, may lead to an accommodation of all the difficulties between that state and the general government."[ ] benjamin watkins leigh was unanimously elected to be the ambassador of accommodation.[ ] so it came about that south carolina, anxious to extricate herself from a perilous situation, yet ready to fight if she could not disentangle herself with honor, took informal steps toward a peaceful adjustment of the dispute; and that jackson and congress, equally wishing to avoid armed conflict, were eager to have a tariff enacted that would work a "reconciliation." on january , , at a meeting in charleston, attended by the first men of the state of all parties, resolutions, offered by hamilton himself, were adopted which, as a practical matter, suspended the ordinance of nullification that was to have gone into effect on february . vehement, spirited, defiant speeches were made, all ending, however, in expressions of hope that war might be avoided. the resolutions were as ferocious as the most bloodthirsty secessionist could desire; but they accepted the proposed "beneficial modification of the tariff," and declared that, "pending the process" of reducing the tariff, "all ... collision between the federal and state authorities should be sedulously avoided on both sides."[ ] the tariff bill of --clay's compromise--resulted. jackson signed it; south carolina was mollified. for the time the storm subsided; but the net result was that nullification triumphed[ ]--a national law had been modified at the threat of a state which was preparing to back up that threat by force. marshall was not deceived. "have you ever seen anything to equal the exhibition in charleston and in the far south generally?" he writes story. "those people pursue a southern league steadily or they are insane. they have caught at clay's bill, if their conduct is at all intelligible, not as a real accommodation, a real adjustment, a real relief from actual or supposed oppression, but as an apology for avoiding the crisis and deferring the decisive moment till the other states of the south will unite with them."[ ] marshall himself was for the compromise tariff of , but not because it afforded a means of preventing armed collision: "since i have breathed the air of james river i think favorably of clay's bill. i hope, if it can be maintained, that our manufactures will still be protected by it."[ ] the "settlement" of the controversy, of course, satisfied nobody, changed no conviction, allayed no hostility, stabilized no condition. the south, though victorious, was nevertheless morose, indignant--after all, the principle of protection had been retained. "the political world, at least our part of it, is surely moved _topsy turvy_," marshall writes story in the autumn of . "what is to become of us and of our constitution? can the wise men of the east answer that question? those of the south perceive no difficulty. allow a full range to state rights and state sovereignty, and, in their opinion, all will go well."[ ] placid as was his nature, perfect as was the co-ordination of his powers, truly balanced as were his intellect and emotions, marshall could not free his mind of the despondency that had now settled upon him. whatever the subject upon which he wrote to friends, he was sure to refer to the woeful state of the country, and the black future it portended. story informed him that an abridged edition of his own two volumes on the constitution would soon be published. "i rejoice to hear that the abridgement of your commentaries is coming before the public," wrote marshall in reply, "and should be still more rejoiced to learn that it was used in all our colleges and universities. the first impressions made on the youthful mind are of vast importance; and, most unfortunately, they are in the south all erroneous. our young men, generally speaking, grow up in the firm belief that liberty depends on construing our constitution into a league instead of a government; that it has nothing to fear from breaking these united states into numerous petty republics. nothing in their view is to be feared but that bugbear, consolidation; and every exercise of legitimate power is construed into a breach of the constitution. your book, if read, will tend to remove these prejudices."[ ] a month later he again writes story: "i have finished reading your great work, and wish it could be read by every statesman, and every would-be statesman in the united states. it is a comprehensive and an accurate commentary on our constitution, formed in the spirit of the original text. in the south, we are so far gone in political metaphysics, that i fear no demonstration can restore us to common sense. the word 'state rights,' as expounded by the resolutions of ' and the report of ' , construed by our legislature, has a charm against which all reasoning is vain. "those resolutions and that report constitute the creed of every politician, who hopes to rise in virginia; and to question them, or even to adopt the construction given by their author [jefferson] is deemed political sacrilege. the solemn ... admonitions of your concluding remarks[ ] will not, i fear, avail as they ought to avail against this popular frenzy."[ ] he once more confides to his beloved story his innermost thoughts and feelings. story had sent the chief justice a copy of the _new england magazine_ containing an article by story entitled "statesmen: their rareness and importance," in which marshall was held up as the true statesman and the poor quality of the generality of american public men was set forth in scathing terms. marshall briefly thanks story for the compliment paid him, and continues: "it is in vain to lament, that the portrait which the author has drawn of our political and party men, is, in general, true. lament it as we may, much as it may wound our vanity or our pride, it is still, in the main, true; and will, i fear, so remain.... in the south, political prejudice is too strong to yield to any degree of merit; and the great body of the nation contains, at least appears to me to contain, too much of the same ingredient. "to men who think as you and i do, the present is gloomy enough; and the future presents no cheering prospect. the struggle now maintained in every state in the union seems to me to be of doubtful issue; but should it terminate contrary to the wishes of those who support the enormous pretensions of the executive, should victory crown the exertions of the champions of constitutional law, what serious and lasting advantage is to be expected from this result? "in the south (things may be less gloomy with you) those who support the executive do not support the government. they sustain the personal power of the president, but labor incessantly to impair the legitimate powers of the government. those who oppose the violent and rash measures of the executive (many of them nullifiers, many of them seceders) are generally the bitter enemies of a constitutional government. many of them are the avowed advocates of a league; and those who do not go the whole length, go great part of the way. what can we hope for in such circumstances? as far as i can judge, the government is weakened, whatever party may prevail. such is the impression i receive from the language of those around me."[ ] during the last years of marshall's life, the country's esteem for him, slowly forming through more than a generation, manifested itself by expressions of reverence and affection. when he and story attended the theater, the audience cheered him.[ ] his sentiment still youthful and tender, he wept over fanny kemble's affecting portrayal of mrs. haller in "the stranger."[ ] to the very last marshall performed his judicial duties thoroughly, albeit with a heavy heart. he "looked more vigorous than usual," and "seemed to revive and enjoy anew his green old age," testifies story.[ ] it is at this period of his career that we get marshall's account of the course he pursued toward his malignant personal and political enemy, thomas jefferson. six years after jefferson's death,[ ] major henry lee, who hated that great reformer even more than jefferson hated marshall, wrote the chief justice for certain facts, and also for his opinion of the former president. in his reply marshall said: "i have never allowed myself to be irritated by m^r jeffersons unprovoked and unjustifiable aspersions on my conduct and principles, nor have i ever noticed them except on one occasion[ ] when i thought myself called on to do so, and when i thought that declining to enter upon my justification might have the appearance of crouching under the lash, and admitting the justice of its infliction."[ ] intensely as he hated jefferson, attributing to him, as marshall did, most of the country's woes, the chief justice never spoke a personally offensive word concerning his radical cousin.[ ] on the other hand, he never uttered a syllable of praise or appreciation of jefferson. even when his great antagonist died, no expression of sorrow or esteem or regret or admiration came from the chief justice. marshall could not be either hypocritical or vindictive; but he could be silent. holding to the old-time federalist opinion that jefferson's principles were antagonistic to orderly government; convinced that, if they prevailed, they would be destructive of the nation; believing the man himself to be a demagogue and an unscrupulous if astute and able politician--marshall, nevertheless, said nothing about jefferson to anybody except to story, lee, and pickering; and, even to these close friends, he gave only an occasional condemnation of jefferson's policies. the general feeling toward marshall, especially that of the bench and bar, during his last two years is not too strongly expressed in story's dedication to the chief justice of his "commentaries on the constitution of the united states." marshall had taken keen interest in the preparation of story's masterpiece and warned him against haste. "precipitation ought carefully to be avoided. this is a subject on which i am not without experience."[ ] story begins by a tribute "to one whose youth was engaged in the arduous enterprises of the revolution; whose manhood assisted in framing and supporting the national constitution; and whose maturer years have been devoted to the task of unfolding its powers, and illustrating its principles." as the expounder of the constitution, "the common consent of your countrymen has admitted you to stand without a rival. posterity will assuredly confirm, by its deliberate award, what the present age has approved, as an act of undisputed justice. "but," continues story, "i confess that i dwell with even more pleasure upon the entirety of a life adorned by consistent principles, and filled up in the discharge of virtuous duty; where there is nothing to regret, and nothing to conceal; no friendships broken; no confidence betrayed; no timid surrenders to popular clamor; no eager reaches for popular favor. who does not listen with conscious pride to the truth, that the disciple, the friend, the biographer of washington, still lives, the uncompromising advocate of his principles?"[ ] excepting only the time of his wife's death, the saddest hours of his life were, perhaps, those when he opened the last two sessions of the supreme court over which he presided. when, on january , , the venerable chief justice, leading his associate justices to their places, gravely returned the accustomed bow of the bar and spectators, he also, perforce, bowed to temporary events and to the iron, if erratic, rule of andrew jackson. he bowed, too, to time and death. justice washington was dead, johnson was fatally ill, and duval, sinking under age and infirmity, was about to resign. republicans as johnson and duval were, they had, generally, upheld marshall's nationalism. their places must soon be filled, he knew, by men of jackson's choosing--men who would yield to the transient public pressure then so fiercely brought to bear on the supreme court. only joseph story could be relied upon to maintain marshall's principles. the increasing tendency of justices thompson, mclean, and baldwin was known to be against his unyielding constitutional philosophy. it was more than probable that, before another year, jackson would have the opportunity to appoint two new justices--and two cases were pending that involved some of marshall's dearest constitutional principles. the first of these was a kentucky case[ ] in which almost precisely the same question, in principle, arose that marshall had decided in craig _vs._ missouri.[ ] the kentucky bank, owned by the state, was authorized to issue, and did issue, bills which were made receivable for taxes and other public dues. the kentucky law furthermore directed that an endorsement and tender of these state bank notes should, with certain immaterial modifications, satisfy any judgment against a debtor.[ ] in short, the legislature had authorized a state currency--had emitted those bills of credit, expressly forbidden by the national constitution. another case, almost equally important, came from new york.[ ] to prevent the influx of impoverished foreigners, who would be a charge upon the city of new york, the legislature had enacted that the masters of ships arriving at that port should report to the mayor all facts concerning passengers. the ship captain must remove those whom the mayor decided to be undesirable.[ ] it was earnestly contended that this statute violated the commerce clause of the constitution. both cases were elaborately argued; both, it was said, had been settled by former decisions--the kentucky case by craig _vs._ missouri, the new york case by gibbons _vs._ ogden and brown _vs._ maryland. the court was almost equally divided. thompson, mclean, and baldwin thought the kentucky and new york laws constitutional; marshall, story, duval, and johnson believed them invalid. but johnson was absent because of his serious illness. no decision, therefore, was possible. marshall then announced a rule of the court, hitherto unknown by the public: "the practice of this court is not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court. in the present cases four judges do not concur in opinion as to the constitutional questions which have been argued. the court therefore direct these cases to be re-argued at the next term, under the expectation that a larger number of the judges may then be present."[ ] the next term! when, on january , , john marshall for the last time presided over the supreme court of the united states, the situation, from his point of view, was still worse. johnson had died and jackson had appointed james m. wayne of georgia in his place. duval had resigned not long before the court convened, and his successor had not been named. again the new york and kentucky cases were continued, but marshall fully realized that the decision of them must be in opposition to his firm and pronounced views.[ ] [illustration: associate justices at the last session of the supreme court over which john marshall presided: mclean, thompson, story, wayne, baldwin] it is doubtful whether history shows more than a few examples of an aged man, ill, disheartened, and knowing that he soon must die, who nevertheless continued his work to the very last with such scrupulous care as did marshall. he took active part in all cases argued and decided and actually delivered the opinion of the court in eleven of the most important.[ ] none of these are of any historical interest; but in all of them marshall was as clear and vigorous in reasoning and style as he had been in the immortal constitutional opinions delivered at the height of his power. the last words marshall ever uttered as chief justice sparkle with vitality and high ideals. in mitchel _et al. vs._ the united states,[ ] a case involving land titles in florida, he said, in ruling on a motion to continue the case: "though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered ... may be sometimes indulged. even this is not always attainable. in the excitement produced by ardent controversy, gentlemen view the same object through such different media that minds, not infrequently receive therefrom precisely opposite impressions. the court, however, must see with its own eyes, and exercise its own judgment, guided by its own reason."[ ] at last marshall had grave intimations that his life could not be prolonged. quite suddenly his health declined, although his mind was as strong and clear as ever. "chief justice marshall still possesses his intellectual powers in very high vigor," writes story during the last session of the supreme court over which his friend and leader presided. "but his physical strength is manifestly on the decline; and it is now obvious, that after a year or two, he will resign, from the pressing infirmities of age.... what a gloom will spread over the nation when he is gone! his place will not, nay, it cannot be supplied."[ ] as the spring of ripened into summer, marshall grew weaker. "i pray god," wrote story in agonies of apprehension, "that he may long live to bless his country; but i confess that i have many fears whether he can be long with us. his complaints are, i am sure, incurable, but i suppose that they may be alleviated, unless he should meet with some accidental cold or injury to aggravate them. of these, he is in perpetual danger, from his imprudence as well as from the natural effects of age."[ ] in may, , kent went to richmond in order to see marshall, whom "he found very emaciated, feeble & dangerously low. he injured his spine by a post coach fall & oversetting.... he ... made me _promise to see him at washington next winter_."[ ] kent wrote jeremiah smith of new hampshire that marshall must soon die. smith was overwhelmed with grief "because his life, at this time especially, is of incalculable value." marshall's "views ... of our national affairs" were those of smith also. "perfectly just in themselves they now come to us confirmed by the dying attestation of one of the greatest and best of men."[ ] marshall's "incurable complaint," which so distressed story, was a disease of the liver.[ ] finding his health failing, he again repaired to philadelphia for treatment by dr. physick. when informed that the prospects for his friend's recovery were desperate, story was inconsolable. "great, good and excellent man!" he wrote. "i shall never see his like again! his gentleness, his affectionateness, his glorious virtues, his unblemished life, his exalted talents, leave him without a rival or a peer."[ ] at six o'clock in the evening of monday, july , , john marshall died, in his eightieth year, in the city where american independence was proclaimed and the american constitution was born--the city which, a patriotic soldier, he had striven to protect and where he had received his earliest national recognition. without pain, his mind as clear and strong as ever, he "met his fate with the fortitude of a philosopher, and the resignation of a christian," testifies dr. nathaniel chapman, who was present.[ ] by marshall's direction, the last thing taken from his body after he expired was the locket which his wife had hung about his neck just before she died.[ ] the morning after his death, the bar of philadelphia met to pay tribute to marshall, and at half-past five of the same day a town meeting was held for the same purpose.[ ] immediately afterward, his body was sent by boat to richmond. the bench, bar, and hundreds of citizens of philadelphia accompanied the funeral party to the vessel. during the voyage a transfer was made to another craft.[ ] a committee, consisting of major-general winfield scott, of the united states army, henry baldwin, associate justice of the supreme court, richard peters, formerly judge for the district of pennsylvania, john sergeant, edward d. ingraham, and william rawle, of the philadelphia bar, went to richmond. in the late afternoon of july , , the steamboat kentucky, bearing marshall's body, drew up at the richmond wharf. throughout the day the bells had been tolling, the stores were closed, and, as the vessel came within sight, a salute of three guns was fired. all richmond assembled at the landing. an immense procession marched to marshall's house,[ ] where he had requested that his body be first taken, and then to the "new burying ground," on shockoe hill. there bishop richard channing moore of the episcopal church read the funeral service, and john marshall was buried by the side of his wife. when his ancient enemy and antagonist, the richmond _enquirer_, published the news of marshall's death, it expressed briefly its true estimate of the man. it would be impossible, said the _enquirer_, to over-praise marshall's "brilliant talents." it would be "a more grateful incense" to his memory to say "that he was as much beloved as he was respected.... there was about him so little of 'the insolence of office,' and so much of the benignity of the man, that his presence always produced ... the most delightful impressions. there was something irresistibly winning about him." strangers could hardly be persuaded that "in the plain, unpretending ... man who told his anecdote and enjoyed the jest--they had been introduced to the chief justice of the united states, whose splendid powers had filled such a large space in the eye of mankind."[ ] the richmond _whig and public advertiser_ said that "no man has lived or died in this country, save its father george washington alone, who united such a warmth of affection for his person, with so deep and unaffected a respect for his character, and admiration for his great abilities. no man ever bore public honors with so meek a dignity ... it is hard ... to conceive of a more perfect character than his, for who can point to a vice, scarcely to a defect--or who can name a virtue that did not shine conspicuously in his life and conduct?"[ ] the day after the funeral the citizens of richmond gathered at and about the capitol, again to honor the memory of their beloved neighbor and friend. the resolutions, offered by benjamin watkins leigh, declared that the people of richmond knew "better than any other community can know" marshall's private and public "virtues," his "wisdom," "simplicity," "self-denial," "unbounded charity," and "warm benevolence towards all men." since nothing they can say can do justice to "such a man," the people of richmond "most confidently trust, to history alone, to render due honors to his memory, by a faithful and immortal record of his wisdom, his virtues and his services."[ ] all over the country similar meetings were held, similar resolutions adopted. since the death of washington no such universal public expressions of appreciation and sorrow had been witnessed.[ ] the press of the country bore laudatory editorials and articles. even hezekiah niles, than whom no man had attacked marshall's nationalist opinions more savagely, lamented his death, and avowed himself unequal to the task of writing a tribute to marshall that would be worthy of the subject. "'a great man has fallen in israel,'" said niles's _register_. "next to washington, only, did he possess the reverence and homage of the heart of the american people."[ ] one of the few hostile criticisms of marshall's services appeared in the _new york evening post_ over the name of "atlantic."[ ] this paper had, by now, departed from the policy of its hamiltonian founder. "atlantic" said that marshall's "political doctrines ... were of the ultra federal or aristocratic kind.... with hamilton" he "distrusted the virtue and intelligence of the people, and was in favor of a strong and vigorous general government, at the expense of the rights of the states and of the people." while he was "sincere" in his beliefs and "a good and exemplary man" who "truly loved his country ... he has been, all his life long, a stumbling block ... in the way of democratic principles.... his situation ... at the head of an important tribunal, constituted in utter defiance of the very first principles of democracy, has always been ... an occasion of lively regret. that he is at length removed from that station is a source of satisfaction."[ ] the most intimate and impressive tributes came, of course, from virginia. scarcely a town in the state that did not hold meetings, hear orations, adopt resolutions. for thirty days the people of lynchburg wore crape on the arm.[ ] petersburg honored "the soldier, the orator, the patriot, the statesman, the jurist, and above all, the good and virtuous man."[ ] norfolk testified to his "transcendent ability, perfect integrity and pure patriotism."[ ] for weeks the virginia demonstrations continued. that at alexandria was held five weeks after his death. "the flags at the public square and on the shipping were displayed at half mast; the bells were tolled ... during the day, and minute guns fired by the artillery"; there was a parade of military companies, societies and citizens, and an oration by edgar snowden.[ ] the keenest grief of all, however, was felt by marshall's intimates of the quoit club of richmond. benjamin watkins leigh proposed, and the club resolved, that, as to the vacancy caused by marshall's death, "there should be no attempt to fill it ever; but that the number of the club should remain one less than it was before his death."[ ] [illustration: _the grave of john marshall_] story composed this "inscription for a cenotaph": "to marshall reared--the great, the good, the wise; born for all ages, honored in all skies; his was the fame to mortals rarely given, begun on earth, but fixed in aim on heaven. genius, and learning, and consummate skill, moulding each thought, obedient to the will; affections pure, as e'er warmed human breast, and love, in blessing others, doubly blest; virtue unspotted, uncorrupted truth, gentle in age, and beautiful in youth;-- these were his bright possessions. these had power to charm through life and cheer his dying hour. are these all perished? no! but snatched from time, to bloom afresh in yonder sphere sublime. kind was the doom (the fruit was ripe) to die, mortal is clothed with immortality."[ ] upon his tomb, however, were carved only the words he himself wrote for that purpose two days before he died, leaving nothing but the final date to be supplied: john marshall the son of thomas and mary marshall was born on the th of september, ; intermarried with mary willis ambler the d of january, ; departed this life the th day of july, . footnotes: [ ] marshall to story, june , , _proceedings, mass. hist. soc. d_ series, xiv, - . [ ] same to same, oct. , , _ib._ - . [ ] marshall to story, oct. , , _proceedings, mass. hist. soc._ d series, xiv, . a rumor finally got about that marshall contemplated resigning. (see niles, xl, .) [ ] the resolutions of the bar had included the same idea, and marshall emphasized it by reiterating it in his response. [ ] hazard's _pennsylvania register_, as quoted in dillon, iii, - . the artist referred to was either thomas sully, or henry inman, who had studied under sully. during the following year, inman painted the portrait and it was so excellent that it brought the artist his first general recognition. the original now hangs in the rooms of the philadelphia law association. a reproduction of it appears as the frontispiece of this volume. [ ] randolph: _a memoir on the life and character of philip syng physick, m.d._ - . [ ] marshall to story, nov. , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] story to peters, oct. , , story, ii, . [ ] marshall to his wife, oct. , , ms. [ ] this is the only indication in any of marshall's letters that his wife had written him. [ ] mrs. marshall had a modest fortune of her own, bequeathed to her by her uncle. she invested this quite independently of her husband. (leigh to biddle, sept. , , mcgrane, .) [ ] marshall to his wife, nov. , , ms. [ ] terhune, . this locket is now in the possession of marshall's granddaughter, miss emily harvie of richmond. [ ] story to his wife, march , , story, ii, - . soon after the death of his wife, marshall made his will "entirely in [his] ... own handwriting." a more informal document of the kind seldom has been written. it is more like a familiar letter than a legal paper; yet it is meticulously specific. "i owe nothing on my own account," he begins. (he specifies one or two small obligations as trustee for women relatives and as surety for "considerable sums" for his son-in-law, jacquelin b. harvie.) the will shows that he owns bank and railroad stock and immense quantities of land. he equally divides his property among his children, making special provision that the portion of his daughter mary shall be particularly safeguarded. one item of the will is curious: "i give to each of my grandsons named john one thousand acres, part of my tract of land called canaan lying in randolph county. if at the time of my death either of my sons should have no son living named john, then i give the thousand acres to any son he may have named thomas, in token for my love for my father and veneration for his memory. if there should be no son named john or thomas, then i give the land to the eldest son and if no sons to the daughters." he makes five additions to his will, three of which he specifically calls "codicils." one of these is principally "to emancipate my faithful servant robin and i direct his emancipation if he _chuses_ to conform to the laws on that subject, requiring that he should leave the state or if permission can be obtained for his continuing to reside in it." if robin elects to go to liberia, marshall gives him one hundred dollars. "if he does not go there i give him fifty dollars." in case it should be found "impracticable to liberate" robin, "i desire that he may choose his master among my sons, or if he prefer my daughter that he may be held in trust for her and her family as is the other property bequeathed in trust for her, and that he may always be treated as a faithful and meritorious servant." (will and codicils of john marshall, records of henrico county, richmond, and fauquier county, warrenton, virginia.) [ ] meade, ii, footnote to . it would seem that marshall showed this tribute to no one during his lifetime except, perhaps, to his children. at any rate, it was first made public in bishop meade's book in . [ ] statements to the author by miss elizabeth marshall of "leeds manor," and by judge j. k. n. norton of alexandria, va. [ ] statement to the author by miss emily harvie. most of marshall's letters to story during these years were written from richmond. [ ] story to sumner, feb. , , story, ii, . [ ] see _infra_, - . [ ] see catterall, , - , ; and see especially parton: _jackson_, iii, - . [ ] catterall, appendix ix, . [ ] _ib._ chaps. v and vii. biddle was appointed director of the bank by president monroe in , and displayed such ability that, in , he was elected president of the institution. not until he received information that jackson was hostile to the bank did biddle begin the morally wrong and practically unwise policy of loaning money without proper security to editors and members of congress. [ ] parton: _jackson_, iii, . [ ] richardson, ii, . [ ] _ib._ - [ ] see catterall, . for account of the fight for the bank bill see _ib._ chap. x. [ ] richardson, ii, - . [ ] _ib._ - . [ ] richardson, ii, . [ ] jackson's veto message was used with tremendous effect in the presidential campaign of . there cannot be the least doubt that the able politicians who managed jackson's campaign and, indeed, shaped his administration, designed that the message should be put to this use. these politicians were william b. lewis, amos kendall, martin van buren, and samuel swartwout. [ ] richardson, ii, - . [ ] marshall to story, aug. , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] richardson, ii, . there was a spirited contest in the house over this bill. (see _debates_, d cong. st sess. - , - , .) it reached the president at the end of the session, so that he had only to refuse to sign it, in order to kill the measure. [ ] in fact jackson did send a message to congress on december , , explaining his reasons for having let the bill die. (richardson, ii, - .) [ ] marshall to story, aug. , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] marshall to story, dec. , , _proceedings, mass. hist. soc._ d series, xiv, . the outspoken and irritable kent expressed the conservatives' opinion of jackson almost as forcibly as ames stated their views of jefferson: "i look upon jackson as a detestable, ignorant, reckless, vain and malignant tyrant.... this american elective monarchy frightens me. the experiment, with its foundations laid on universal suffrage and an unfettered and licentious press is of too violent a nature for our excitable people. we have not in our large cities, if we have in our country, moral firmness enough to bear it. _it racks the machine too much._" (kent to story, april , , story mss. mass. hist. soc.) in this letter kent perfectly states marshall's convictions, which were shared by nearly every judge and lawyer in america who was not "in politics." [ ] see _supra_, . [ ] _annals_, th cong. st sess. . [ ] _annals_, th cong. st sess. . [ ] _ib._ . [ ] _debates_, th cong. st sess. . [ ] _ib._ . [ ] _ib._ . [ ] _ib._ . [ ] _debates_, th cong. st sess. . [ ] this was the plan of george mcduffie. calhoun approved it. (houston: _a critical study of nullification in south carolina_, - .) [ ] _ib._ [ ] _ib._ . [ ] calhoun's "exposition" was reported by a special committee of the south carolina house of representatives on december , . it was not adopted, however, but was printed, and is included in _statutes at large of south carolina_, edited by thomas cooper, i, - . [ ] jefferson to giles, dec. , , _works_: ford, xii, - . [ ] niles, xxv, . [ ] see phillips: _georgia and state rights_, in _annual report, am. hist. ass'n_ ( ), ii, . [ ] resolution of dec. , , _laws of georgia, _, ; and see phillips, . [ ] act of dec. , _laws of georgia, _, - . [ ] parton: _jackson_, iii, . [ ] phillips, . [ ] act of dec. , _laws of georgia, _, - . [ ] act of dec. , _ib._ ; dec. , _ib._ - ; dec. , _ib._ - [ ] wirt to carr, june , , kennedy, ii, - . [ ] see _debates_, st cong. st sess. - , - , - , - . for the text of this bill as it passed the house see _ib._ - . it became a law may , . (_u.s. statutes at large_, iv, .) for an excellent account of the execution of this measure see abel: _the history of the events resulting in indian consolidation west of the mississippi river, annual report, am. hist. ass'n_, , i, - . this essay, by dr. anne héloise abel, is an exhaustive and accurate treatment of the origin, development, and execution of the policy pursued by the national and state governments toward the indians. dr. abel attaches a complete bibliography and index to her brochure. [ ] peters, . [ ] marshall to carr, , kennedy, ii, - . as a young man marshall had thought so highly of indians that he supported patrick henry's plan for white amalgamation with them. (see vol. i, , of this work.) yet he did not think our general policy toward the indians had been unwise. they were, he wrote story, "a fierce and dangerous enemy whose love of war made them sometimes the aggressors, whose numbers and habits made them formidable, and whose cruel system of warfare seemed to justify every endeavour to remove them to a distance from civilized settlements. it was not until after the adoption of our present government that respect for our own safety permitted us to give full indulgence to those principles of humanity and justice which ought always to govern our conduct towards the aborigines when this course can be pursued without exposing ourselves to the most afflicting calamities. that time, however, is unquestionably arrived, and every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence impresses a deep stain on the american character. i often think with indignation on our disreputable conduct (as i think) in the affair of the creeks of georgia." (marshall to story, oct. , , _proceedings, mass. hist. soc._ d series, xiv, - .) [ ] niles, xxxix, . [ ] _ib._ . [ ] _memoirs, j. q. a._: adams, viii, - . [ ] the argument for the cherokee nation was made march and , . [ ] peters, . [ ] peters, - . [ ] _ib._ - . [ ] peters, . justice smith thompson dissented in an opinion of immense power in which story concurred. these two justices maintained that in legal controversies, such as that between the cherokees and georgia, the indian tribe must be treated as a foreign nation. (_ib._ - .) thompson's opinion was as nationalist as any ever delivered by marshall. it well expressed the general opinion of the north, which was vigorously condemnatory of georgia as the ruthless despoiler of the rights of the indians and the robber of their lands. [ ] see _supra_, - . [ ] phillips, . [ ] see mcmaster, vi, - . [ ] phillips, . [ ] _ib._ - . [ ] peters, - . [ ] story to his wife, feb. , , story, ii, . [ ] peters, . [ ] _ib._ - . [ ] _ib._ . [ ] _ib._ - [ ] see vol. iii, - , of this work. [ ] peters, - . [ ] story to ticknor, march , , story, ii, . [ ] lumpkin's message to the legislature, nov. , , as quoted in phillips, . [ ] greeley: _the american conflict_, i, ; and see phillips, . [ ] when the georgia legislature first met after the decision of the worcester case, acts were passed to strengthen the lottery and distribution of cherokee lands (acts of nov. , , and dec. , , _laws of georgia, _, - , , ) and to organize further the cherokee territory under the guise of protecting the indians. (act of dec. , , _ib_. - .) having demonstrated the power of the state and the impotence of the highest court of the nation, the governor of georgia, one year after marshall delivered his opinion, pardoned worcester and butler, but not without protests from the people. two years later, georgia's victory was sealed by a final successful defiance of the supreme court. one james graves was convicted of murder; a writ of error was procured from the supreme court; and a citation issued to georgia as in the case of george tassels. the high spirit of the state, lifted still higher by three successive triumphs over the supreme court, received the order with mingled anger and derision. governor lumpkin threatened secession: "such attempts, if persevered in, will eventuate in the dismemberment and overthrow of our great confederacy," he told the legislature. (governor lumpkin's special message to the georgia legislature, nov. , , as quoted in phillips, .) the indians finally were forced to remove to the indian territory. (see phillips, .) worcester went to his vermont home. [ ] _debates_, st cong. st sess. . the debate between webster and hayne occurred on a resolution offered by senator samuel augustus foot of connecticut, "that the committee on public lands be instructed to inquire into the expediency of limiting for a certain period the sales of public lands," etc. (_ib._ .) the discussion of this resolution, which lasted more than three months (see _ib._ - ), quickly turned to the one great subject of the times, the power of the national government and the rights of the states. it was on this question that the debate between webster and hayne took place. [ ] _ib._ . compare with marshall's language in cohens _vs._ virginia, _supra_, . [ ] _debates_, st cong. st sess. . [ ] see marshall's statement of this principle, _supra_, , . [ ] _debates_, st cong. st sess. . this was the constitutional theory of the nationalists. as a matter of fact, it was not, perhaps, strictly true. there can be little doubt that a majority of the people did not favor the constitution when adopted by the convention and ratified by the states. had manhood suffrage existed at that time, and had the constitution been submitted directly to the people, it is highly probable that it would have been rejected. (see vol. i, chaps, ix-xii, of this work.) [ ] _debates_, st cong. st sess. . see chap, iii, vol. iii, of this work. [ ] _debates_, st cong. st sess. . [ ] _ib._ see marshall's opinion in cohens _vs._ virginia, _supra_, - . [ ] _debates_, st cong. st sess. . [ ] niles, xxxix, . [ ] _ib._ . [ ] _debates_, st cong. st sess. . [ ] _ib._ . [ ] marshall to johnston, may , , mss. "society collection," pa. hist. soc. [ ] madison to everett, aug. , , _writings_: hunt, ix, - . [ ] _north american review_ ( ), xxxi, - . [ ] marshall to story, oct. , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] jackson to the committee, june , , niles, xl, . [ ] _state doc. fed. rel._: ames, - . [ ] marshall to story, aug. , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] same to same, sept. , , _ib._ - . [ ] niles, xlii, . [ ] _ib._ . [ ] under act of oct. , , _statutes at large of south carolina_: cooper, i, - . [ ] _statutes at large of south carolina_: cooper, i, - . [ ] _ib._ - . [ ] _ib._ - ; also niles, xliii, - . [ ] marshall to peters, dec. , , peters mss. pa. hist. soc. [ ] see _supra_, footnote to . [ ] richardson, ii, - ; niles, xliii, - . [ ] story to his wife, jan. , , story, ii, . [ ] niles, xliii, - . [ ] _ib._ . [ ] _ib._ [ ] _statutes at large of south carolina_: cooper, i, . [ ] _ib._ - . [ ] _statutes at large of south carolina_: cooper, i, . [ ] _ib._ . [ ] _ib._ . [ ] december , the same day that hayne's proclamation appeared. [ ] _statutes at large of south carolina_: cooper, i, - . [ ] _ib._ viii, - . [ ] _ib._ - . [ ] parton: _jackson_, iii, - , ; bassett: _life of andrew jackson_, ; macdonald: _jacksonian democracy_, . [ ] parton: _jackson_, iii, . [ ] niles, xliii, . [ ] _ib._ . [ ] parton: _jackson_, iii, . [ ] richardson, ii, - . [ ] niles, xliii, . [ ] _ib._ [ ] _ib._ . [ ] niles, xliii, - . the resolutions, as adopted, provided for only one commissioner. (see _infra_, .) [ ] _writings and speeches of daniel webster_ (nat. ed.) xiii, - . [ ] marshall to story, dec. , , _proceedings_, _mass. hist. soc._ d series, xiv, - . [ ] niles, xliii, - ; also _statutes at large of south carolina_: cooper, i, - . [ ] niles, xliii, . for the details of leigh's mission see _ib._ - ; also _statutes at large of south carolina_: cooper, i, - . [ ] niles, xliii, - . [ ] see parton: _jackson_, iii, - . [ ] marshall to story, april , , _proceedings, mass. hist. soc._ d series, xiv, - . [ ] _ib._ [ ] same to same, nov. , , _ib._ . [ ] marshall to story, june , , _proceedings, mass. hist. soc._ d series, xiv, . [ ] story ends his _commentaries on the constitution of the united states_ by a fervent, passionate, and eloquent appeal for the preservation, at all hazards, of the constitution and the union. [ ] marshall to story, july , , story, ii, - . [ ] marshall to story, oct. , , story, ii, - . [ ] story to his wife, jan. , , _ib._ . [ ] _ib._ . [ ] story to his wife, jan. , , story, ii, . [ ] july , . [ ] jefferson's attacks on marshall in the x. y. z. affair. (see vol. ii, - , - , of this work.) [ ] marshall to major henry lee, jan. , , mss. lib. cong. in no collection, but, with a few unimportant letters, in a portfolio marked "m," sometimes referred to as "marshall papers." [ ] _green bag_, viii, . [ ] marshall to story, july , , _proceedings, mass. hist soc._ d series, xiv, . [ ] story to marshall, january, , story, ii, - . this letter appears in story's _commentaries on the constitution_, immediately after the title-page of volume i. story's perfervid eulogium did not overstate the feeling--the instinct--of the public. nathan sargent, that trustworthy writer of reminiscences, testifies that, toward the end of marshall's life, his name had "become a household word with the american people implying greatness, purity, honesty, and all the christian virtues." (sargent, i, .) [ ] briscoe _vs._ the commonwealth's bank of the state of kentucky, peters, _et seq._ [ ] see _supra_, - . [ ] act of dec. , _laws of kentucky, _, - . [ ] the mayor, aldermen and commonalty of the city of new york _vs._ miln, peters, _et seq._ [ ] peters, . this was the first law against unrestricted immigration. [ ] peters, . [ ] these cases were not decided until , when roger brooke taney of maryland took his seat on the bench as marshall's successor. philip pendleton barbour of virginia succeeded duval. of the seven justices, only one disciple of marshall remained, joseph story. in the new york case the court held that the state law was a local police regulation. ( peters, - ; - .) story dissented in a signally able opinion of almost passionate fervor. "i have the consolation to know," he concludes, "that i had the entire concurrence ... of that great constitutional jurist, the late mr. chief justice marshall. having heard the former arguments, his deliberate opinion was that the act of new york was unconstitutional, and that the present case fell directly within the principles established in the case of gibbons v. ogden." (_ib._ - .) in the kentucky bank case, decided immediately after the new york immigrant case, marshall's opinion in craig _vs._ missouri was completely repudiated, although justice mclean, who delivered the opinion of the court (_ib._ - ), strove to show that the judgment was within marshall's reasoning. story, of course, dissented, and never did that extraordinary man write with greater power and brilliancy. when the case was first argued in , he said, a majority of the court "were decidedly of the opinion" that the kentucky bank law was unconstitutional. "in principle it was thought to be decided by the case of craig v. the state of missouri." among that majority was marshall--"a name never to be pronounced without reverence." (_ib._ .) in closing his great argument, story says that the frankness and fervor of his language are due to his "reverence and affection" for marshall. "i have felt an earnest desire to vindicate his memory.... i am sensible that i have not done that justice to his opinion which his own great mind and exalted talents would have done. but ... i hope that i have shown that there were solid grounds on which to rest his exposition of the constitution. _his saltem accumulem donis, et fungar inani munere._" ( peters, .) [ ] lessee of samuel smith _vs._ robert trabue's heirs, peters, - ; u.s. _vs._ nourse, _ib._ - ; caldwell _et al. vs._ carrington's heirs, _ib._ - ; bradley _vs._ the washington, etc. steam packet co. _ib._ - ; delassus _vs._ u.s. _ib._ - ; chouteau's heirs _vs._ u.s. _ib._ - ; u.s. _vs._ clarke, _ib._ - ; u.s. _vs._. huertas, _ib._ - ; field et _al. vs._ u.s. _ib._ - ; mayor, etc. of new orleans _vs._ de armas and cucullo, _ib._. - ; life and fire ins. co. of new york _vs._ adams, _ib._ - . [ ] _ib._ - . [ ] peters, . [ ] story to fay, march , , story, ii, . [ ] story to peters, may , , _ib._ . [ ] kent's journal, may , , kent mss. lib. cong. [ ] smith to kent, june , , kent mss. lib. cong. [ ] randolph: _physick_, - . [ ] story to peters, june , , story, ii, - . [ ] chapman to brockenbrough, july , , quoted in the richmond _enquirer_, july , . marshall died "at the boarding house of mrs. crim, walnut street below fourth." (philadelphia _inquirer_, july , .) three of marshall's sons were with him when he died. his eldest son, thomas, when hastening to his father's bedside, had been killed in baltimore by the fall upon his head of bricks from a chimney blown down by a sudden and violent storm. marshall was not informed of his son's death. [ ] terhune, . [ ] philadelphia _inquirer_, july , . [ ] niles, xlviii, . [ ] richmond _enquirer_ july , . [ ] _ib._ [ ] richmond _whig and public advertiser_, july , . [ ] richmond _enquirer_, july , . [ ] see sargent, i, . if the statements in the newspapers and magazines of the time are to be trusted, even the death of jefferson called forth no such public demonstrations as were accorded marshall. [ ] niles, xlviii, . [ ] undoubtedly william leggett, one of the editors. see leggett: _a collection of political writings_, ii, - . [ ] as reprinted in _richmond whig and public advertiser_, july , . [ ] richmond _enquirer_, july , . [ ] _ib._ [ ] _ib._ july , . [ ] alexandria _gazette_, aug. , , reprinted in the richmond _enquirer_, aug. , . [ ] magruder: _john marshall_, . [ ] story, ii, . the end works cited in this volume works cited in this volume _the material given in parentheses and following certain titles indicates the form in which those titles have been cited in the footnotes._ abel, annie hÉloise. the history of events resulting in indian consolidation west of the mississippi. 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(_writings_: adams.) _see also_ adams, henry. georgia. acts of the general assembly of the state of georgia, at an annual session, in october and november, . milledgeville, ga. . giles, william branch. _see_ anderson, dice robins. _great american lawyers_. _see_ lewis, william draper. greeley, horace. the american conflict. vols. hartford. . . _green bag, the: an entertaining magazine for lawyers._ edited by horace w. fuller. boston. - . (_green bag._) grigsby, hugh blair. the virginia convention of - . richmond. . harding, chester. a sketch of chester harding, artist. drawn by his own hand. edited by margaret eliot white. boston. . _harper's magazine._ hart, albert bushnell, _editor_. american history told by contemporaries. vols. new york. - . ---- the american nation: a history. volumes. new york. - . _harvard law review._ harvey, peter. reminiscences and anecdotes of webster. boston. . hay, george. a treatise on expatriation. washington. . hildreth, richard. history of the united states of america. vols. new york. - . (hildreth.) hillard, george stillman. memoir and correspondence of jeremiah mason. cambridge. . (hillard.) hopkins, samuel m., _reporter_. reports of cases argued and determined in the court of chancery of the state of new york. albany. . houston, david franklin. a critical study of nullification in south carolina. new york. . 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(lodge: _cabot_.) lord, john king. a history of dartmouth college, - . being the second volume of history of dartmouth college and the town of hanover, new hampshire, begun by frederick chase. concord, n.h. . (lord.) loshe, lillie deming. the early american novel. new york. . [columbia university. studies in english.] _louisiana law journal._ edited by gustavus schmidt. volume , nos. - . new orleans. . lowell, john. mr. madison's war. by a new england farmer (_pseud._). boston. . ---- peace without dishonour--war without hope. by a yankee farmer (_pseud._). boston. . ---- review of a treatise on expatriation by george hay, esquire. by a massachusetts lawyer (_pseud._). boston. . mcclintock, john norris. history of new hampshire. boston. . mccord, david james, _editor_. statutes at large of south carolina. vols to . columbia, s.c. - . macdonald, william. jacksonian democracy, - . new york. . 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(_annals._) ---- register of debates. eighteenth congress, second session--twenty-fifth congress, first session. vols. washington. - . (_debates._) ---- laws of the united states of america. vols. washington. . ---- statutes at large. united states supreme court. reports of cases adjudged. _university of pennsylvania law review and american law register._ van santvoord, george. sketches of the lives and judicial services of the chief-justices of the supreme court of the united states. new york. . van tyne, claude halstead, _editor_. _see_ webster, daniel. letters. vermont. laws passed by the legislature of the state of vermont at their session at montpelier on the second thursday of october, . windsor, n. d. virginia. journals of the house of delegates. richmond. . ---- proceedings and debates of the virginia state convention of - . richmond. . (_debates, va. conv._) ---- report of the commissioners appointed to view certain rivers within the commonwealth of virginia, john marshall, chairman. printed, . ---- reports of cases argued and decided in the court of appeals. richmond. . _virginia branch colonization society._ report. . _virginia magazine of history and biography._ vols. richmond. - . wallace, john william. cases argued and adjudged in the supreme court of the united states, - . vols. washington, - . warren, charles. history of the american bar. boston. . (warren.) webster, daniel. letters of daniel webster, from documents owned principally by the new hampshire historical society. edited by claude h. van tyne. new york. . (van tyne.) ---- private correspondence. edited by fletcher webster. vols. boston. . (_priv. corres._: webster.) ---- _see_ curtis, george ticknor; harvey, peter; lanman, charles; lodge, henry cabot; wilkinson, william cleaver. wendell, john lansing, _reporter_. reports of cases argued and determined in the supreme court of judicature ... of the state of new york. vols. albany. - . wheaton, henry. a digest of the decisions of the supreme court of the united states from to february term, . new york. . ---- elements of international law, with a sketch of the history of the science. philadelphia. . ---- some account of the life, writings, and speeches of william pinkney. philadelphia. . (wheaton: _pinkney_.) wheaton, henry, _reporter_. reports of cases argued and adjudged in the supreme court of the united states, - . vols. philadelphia. - . (wheaton.) wilkinson, william cleaver. daniel webster: a vindication. new york. . wilson, henry. rise and fall of the slave power in america. vols. boston. . wirt, william. _see_ kennedy, john pendleton. _world's work._ general index general index abel, anne h., monograph on indian consolidation, = =, _n._ adair, john, and burr conspiracy, = =, , , ; career, _n._, _n._; wilkinson's letter to, , ; arrested by wilkinson, , , _n._; suit against wilkinson, _n._; brought to baltimore, released, ; statement, _n._; and green _vs._ biddle, = =, . adams, abijah, trial, = =, - . adams, henry, on m. in jonathan robins case, = =, ; on pickering impeachment, = =, ; on isolation of burr, ; on burr and merry, ; on american law of treason, _n._; on impressment, = =, _n._; on causes of war of , _n._ adams, john, on drinking, = =, _n._; library, ; on philadelphia campaign, ; belittles washington ( ), _n._; story of expected kingship, ; on american and french revolutions, = =, _n._; and title for president, ; on hamilton's financial genius, _n._; and policy of neutrality, ; m. on, ; on m., ; address to congress on french affairs ( ), french demand of withdrawal of it, , , ; appointment of x. y. z. mission, - ; and x. y. z. dispatches, , ; offers m. associate justiceship, , , ; federalist toast to, _n._; statement of french policy ( ), ; and m.'s journal of mission, ; m. on foreign policy, ; and prosecutions under sedition law, ; reopening of french negotiations, political result, - ; pardons fries insurrectionists, political effect, - , = =, ; absence from capital, = =, , ; address to congress ( ), ; m.'s reply of house, - ; jonathan robins case, - ; disruption of cabinet, - ; temperament contrasted with washington's, , ; appointment of m. as secretary of state, , - ; republican comment on reorganized cabinet, , ; pardon of williams, ; and bowles in florida, ; and british debts dispute, , ; and possible failure of new french negotiations, ; m. writes address to congress ( ), , ; eulogy by _washington federalist_, _n._; and enlargement of federal judiciary, ; and chief justiceship, appointment of m., - , ; continues m. as secretary of state, ; midnight appointments, - , = =, , ; magnanimous appointment of wolcott, = =, , ; jefferson and midnight appointments, = =, ; republican seditious utterances, , , , _n._; and subpoena, , ; and partisan appointments, ; on bayard's judiciary speech ( ), ; on john randolph, ; and chase, _n._; and m's biography of washington, ; on his situation as president, _n._; biography of washington on, _n._; on embargo controversy, = =, ; on banking mania, , ; in massachusetts constitutional convention ( ), . _see also_ elections ( ). adams, john q., publicola papers, = =, - ; on vandalism of french revolution, _n._; on american support of french revolution, ; on economic division on policy of neutrality, _n._; on dangers of war with england ( ), _n._, _n._; on necessity of neutrality, _n._; minister to prussia, _n._; on france and american politics, _n._; on washington streets ( ), = =, ; on federalist defeat, ; on impeachment plans ( ), - , ; on impeachment of pickering, , ; on articles of impeachment against chase, ; on chase trial, _n._, _n._; on randolph's speech at trial, _n._; votes to acquit chase, ; on burr's farewell address, _n._; on wilkinson, _n._; on eaton's story on burr, ; on swartwout and bollmann trial, ; report on burr conspiracy and trial, - ; report and courtship of administration, _n._; later support of m., _n._; on giles's speech on report, ; and yazoo claims, attorney in fletcher _vs._ peck, , , ; and justiceship, = =, ; on crisis of , ; m. and election of , - ; on georgia-cherokee controversy, . adams, mrs. john q., drawing room, = =, . adams, samuel, and ratification, = =, . adams, thomas, sedition, = =, . addison, alexander, charge on sedition act, = =, _n._; and british precedents, = =, _n._; as judge, denounces republicans, ; on the stump, ; on declaring acts void, ; impeachment, . admiralty, m. on unfairness of british courts, = =, , ; story as authority, = =, ; jurisdiction in territories, - . _see also_ international law; prize. _adventure_ and her cargo case, = =, . agriculture, m. on french ( ), = =, ; m.'s interest, = =, . albany plan, = =, _n._ alexander, james, and burr conspiracy, arrested, = =, ; freed, . alexandria, va., tribute to m., = =, . _alexandria advertiser_, campaign virulence ( ), = =, _n._ alien and sedition acts, fatality, = =, ; provisions, ; hamilton on danger in, ; federalist attempts to defend, ; republican assaults, unconstitutionality, ; washington's defense, , ; addison's charge, ; m.'s views of expediency, , , , ; federalists and m.'s views, - , ; m. on motives of virginia republicans, , ; jefferson's plan of attack, , ; kentucky resolutions, - ; virginia resolutions, , ; madison's address of virginia legislature, , ; m.'s address of the minority of the legislature, - ; m. on constitutionality, ; virginia military measures, , ; prosecutions, conduct of federalist judges, , , = =, - , , - , - , ; repeal of section, m.'s vote, = =, ; as issue ( ), , ; state trials, = =, - ; resulting issues, - ; m.'s position quoted by republicans, . allbright, jacob, testimony in burr trial, = =, - , , . allegiance. _see_ expatriation; naturalization. allen, nathaniel, granville heirs case, = =, . alston, aaron burr, death, = =, _n._ alston, joseph, at trial of burr, = =, , . alston, theodosia (burr), and trial of father, = =, , ; death, _n._ ambler, edward, courtship, = =, _n._; country place, _n._ ambler, eliza, on arnold's invasion, = =, _n._ _see also_ carrington, eliza. ambler, jacquelin, career, = =, , ; and m., ; and m.'s election to council of state, _n._; m.'s neighbor, = =, . ambler, john, wealth, = =, ; marries m.'s sister, _n._; grand juror on burr, = =, _n._ ambler, mary willis, family, = =, - ; meeting with m., , ; courtship, , , , ; marriage, , . _see also_ marshall, mary w. ambler, richard, immigrant, = =, . _amelia_ case, = =, , . amendment of constitutions, m.'s idea, = =, . amendment of federal constitution, demand for previous, = =, , , , , , ; expected, ; proposed by massachusetts, ; randolph's support of recommendatory, , ; method, in ratification debate, ; virginia contest over recommendatory, - ; character of virginia recommendations, ; history of first ten amendments, = =, - ; eleventh, _n._, = =, , = =, , , - ; proposals caused by jay treaty, = =, - ; twelfth, _n._; proposed, on removal of judges, = =, , , ; proposed, for recall of senators, = =, ; proposed, to restrict appellate jurisdiction of supreme court, = =, , , , ; proposed, to limit judicial tenure, _n._ american academy of arts and sciences, m.'s membership, = =, . american colonization society, m. and, = =, - . american insurance co. _vs._ canter, right of annexation, territorial government, = =, _n._, = =, - . american philosophical society, m.'s membership, = =, . american revolution, influence of bacon's rebellion and braddock's defeat, = =, , ; virginia and stamp act, - ; virginia resolutions for arming and defense ( ), , ; preparation in back-country virginia, - ; dunmore's norfolk raid, battle of great bridge, - ; condition of the army, militia, - , ; effect of state sovereignty, , - , , ; brandywine campaign, - ; campaign before philadelphia, - ; germantown, - ; desperate state, , ; final movements before philadelphia, - ; efforts to get washington to abandon cause, , , ; philadelphia during british occupation, - ; valley forge, - , ; treatment of prisoners, ; washington as sole dependence, , ; conway cabal, - ; washington and weakness of congress, - , ; jefferson accused of shirking, - ; french alliance, relaxing effect, , , ; monmouth campaign, - ; stony point, - ; pawles hook, ; arnold in virginia, jefferson's conduct, ; depreciated currency and prices, - ; influence on france, = =, ; m.'s biography of washington on, = =, , , - . _see also_ continental congress. ames, fisher, on democratic societies, = =, ; on contest over funding, _n._; on contest over national capital, _n._; on lack of national feeling, , ; on republican discipline, ; on british-debts cases, _n._; on crisis with england ( ), ; on giles, ; and m. ( ), , ; on effect of x. y. z. dispatches, ; attack on m.'s views of alien and sedition acts, ; on reopening of french negotiations, , - ; on adams's temperament, _n._; on adams's advances to republicans ( ), ; on advance of republicans, ; on attack on standing army, _n._; on character of parties, _n._; opposition to adams, ; on campaign virulence of newspapers, ; on resumption of european war, = =, ; on jefferson and judiciary, ; and secession, _n._, , _n._; on repeal of judiciary act, ; on louisiana purchase, ; on chase impeachment, ; on yazoo lands, ; as british partisan, = =, ; and m.'s logic, . ames, nathaniel, attack on washington, = =, _n._ amory, rufus g., practitioner before m., = =, _n._ amsterdam, decline of trade ( ), = =, . amusements, in colonial virginia, = =, ; of period of confederation, ; m.'s diversions, = =, - , = =, , - . anarchy, spirit, = =, , , , ; as spirit of shays's rebellion, , ; jefferson's defense, - . _see also_ government. ancestry, m.'s, = =, - . anderson, john e., pamphlet on yazoo lands, = =, _n._ anderson, joseph, of smith committee, = =, _n._ anderson, richard, and mary ambler, = =, . andré, john, in philadelphia society, = =, . andrews, ----, and jay treaty, = =, . andrews, robert, professor at william and mary, = =, _n._ annapolis convention, and commercial regulation, = =, . annexation, constitutionality, = =, , = =, . _antelope_ case, = =, . antwerp, trade ( ), = =, ; m. on conditions, , . appellate jurisdiction of supreme court over state acts, = =, - , - ; proposed measures to restrict or repeal, , , , , , - . _see also_ declaring acts void; supreme court. aristocracy, of colonial virginia, = =, - ; after the revolution, . armed neutrality, m.'s biography of washington on, = =, . armstrong, john, and pickering impeachment, = =, _n._; and st. cloud decree, = =, . army, condition of revolutionary, = =, - , ; sickness, , ; discipline, , ; lack of training, _n._; lack of equipment, , ; at valley forge, - , , ; improved commissary, ; steuben's instruction, ; size ( ), _n._; light infantry, _n._; arguments during ratification on standing, , , , , , ; washington commands ( ), = =, , = =, _n._; m. and officers for, = =, ; debate on reduction ( ), , , - ; as issue ( ), . _see also_ preparedness. arnold, benedict, invasion of virginia, = =, ; m.'s biography of washington on, = =, . assumption of state debts, contest, = =, - ; opposition in virginia, , - ; question of constitutionality, ; political results, . _atalanta_ case, = =, _n._ athletics, m.'s prowess, = =, , , . attainder, philips case, = =, , , . attorney-general, m. declines office, = =, , ; henry declines, ; breckenridge as, = =, _n._; wirt as, = =, . augereau, pierre f. c., and th fructidor, = =, _n._ _augusta chronicle_, on yazoo frauds, = =, . _aurora_, abuse of washington, = =, , ; on m.'s appointment to x. y. z. mission, , ; and x. y. z. dispatches, , ; on m.'s reception, , ; on addison's charge on sedition act, _n._; curtius letters on m., , ; on pardon of fries, _n._; on m. and powers of territorial governor, _n._; and disputed elections bill, ; on jonathan robins case, , - ; on m.'s appointment as secretary of state, - ; on the reorganized cabinet, ; attack on pickering, _n._; on new french negotiations, _n._; campaign virulence ( ), _n._; on mazzei letter, _n._; on judiciary bill, _n._, , _n._; on m.'s appointment as chief justice, ; on judiciary, = =, _n._; attack on m. during burr trial, - . austen, jane, m. as reader, = =, . babcock, kendric c., on federalists and war of , = =, _n._ bache, benjamin f., attacks on washington, = =, _n._ _see also_ _aurora_. bacon, john, and kentucky and virginia resolutions, = =, ; in judiciary debate ( ), . bacon's rebellion, influence, = =, . bailey, theodorus, resigns from senate, = =, _n._ baily, francis, on hardships of travel, = =, _n._. baker, john, hite _vs._ fairfax, = =, , ; ware _vs._ hylton, = =, ; counsel for burr, = =, . _balaou._ _see_ _exchange_. baldwin, ----, sedition trial, = =, _n._ baldwin, ----, and missouri question, = =, . baldwin, abraham, and judiciary act of , = =, . baldwin, henry, practitioner before m., = =, _n._; appointment to the supreme court, ; and m., ; and briscoe _vs._ bank and new york _vs._ miln, ; escort to m.'s body, . ball, burgess, on m. at valley forge, = =, . baltimore, in , = =, ; and policy of neutrality, = =, _n._; proposed removal of federal capital to, = =, ; public tumult over burr trial, , - . baltimore _marylander_, on m. and election of , = =, . bancroft, george, on m.'s biography of washington, = =, ; on m., = =, . bangs, edward, on ratification contest, = =, . bank of the united states, first, jefferson and hamilton on constitutionality, = =, - ; hostility in virginia, ; virginia branch, ; m.'s investment, , ; as monopoly, = =, , ; success, = =, ; continued opposition, - ; failure of recharter, machinations of state banks, - . bank of the united states, second, charter, = =, , ; and localism, ; early mismanagement, ; its demands on state banks and reforms force crisis, - ; early popular hostility, blamed for economic conditions, , , , ; movement to destroy through state taxation, - ; attempt to repeal charter ( ), , ; bonus bill, , ; success and continued hostility to, , ; mason affair, ; jackson's war on, veto of recharter, - ; biddle's conduct, _n._; as monopoly, ; as issue in , _n._, ; m. on jackson's war, , ; jackson's withdrawal of deposits, . _see also_ next title, and m'culloch _vs._ maryland; osborn _vs._ bank. bank of the united states _vs._ dandridge, = =, , . bank of virginia, m. and, = =, ; political power, = =, ; refuses to redeem notes, . banking, effects of chaos ( ), = =, , ; mania for state banks, their character and issues, - , , ; and war finances, , ; and speculation, - ; frauds, , ; resulting suits, , ; lack of regulation, ; private, ; depreciation of notes, no specie redemption, - ; counterfeits, ; bank of the united states forces crisis, - ; distress, - . _see also_ preceding titles. bankruptcy, m. and national act, = =, , ; lax state laws and fraud, = =, - . _see also_ ogden _vs._ saunders; sturges _vs._ crowninshield. bannister, john, resigns from council of state, = =, . barbary powers, m. and protection from, = =, ; general tribute to, _n._; eaton and war, = =, _n._, _n._ barbecue club. _see_ quoit club. barbour, james, grand juror on burr, = =, _n._; counsel in cohens _vs._ virginia, = =, ; on missouri question, . barbour, philip p., in debate on supreme court, = =, ; in virginia constitutional convention, ; in debate on state judiciary, ; in debate on suffrage, _n._; appointment to supreme court, _n._ barlow, joel, seditious utterances, = =, ; to write republican history of the united states, , , , ; and decree of st. cloud, = =, , . barrett, nathaniel, and ratification, = =, , . barron, james, _chesapeake-leopard_ affair, = =, . bartlett, ichabod, counsel in dartmouth college case, = =, . bassett, richard, and judiciary act of , = =, . bastrop lands. _see_ washita. batture litigation, = =, - . bayard, james a., on hardships of travel, = =, ; on french revolution, = =, _n._; and jonathan robins case, ; on adams's temperament, _n._; opposition to adams, _n._; on jefferson-burr contest, , _n._, _n._; on washington ( ), = =, _n._; on federalists and judiciary debate ( ), ; in debate, , - ; appearance, ; on bill on sessions of supreme court, , ; on test of repeal of judiciary act, _n._; on jefferson and impeachment plan, ; on chase impeachment, ; and chase trial, _n._; and attempt to suspend habeas corpus ( ), ; on j. q. adams's burr conspiracy report, . bayard _vs._ singleton, = =, . bayly, thomas m., on m., = =, _n._ beard, charles a., on character of framers, = =, _n._ beaumarchais, pierre a. caron de, mortgage on m.'s land, = =, ; american debt to, and x. y. z. mission, - , , _n._, - , , _n._; history of debt, _n._ bedford, gunning, jr., in federal convention, on declaring acts void, = =, _n._ bee, thomas, jonathan robins case, = =, . beer co. _vs._ massachusetts, = =, _n._ begon, dennis m., _exchange_ case, = =, . belknap, morris p., testimony in burr trial, = =, . bell, samuel, and dartmouth college case, = =, , _n._ bellamy, ----, as agent in x. y. z. mission, = =, - , , , , . bellamy, joseph, and wheelock, = =, . belligerency, of revolting provinces, = =, - . bellini, charles, professor at william and mary, = =, _n._ bentham, jeremy, and burr, = =, _n._ benton, thomas h., duelist, = =, _n._; counsel in craig _vs._ missouri, = =, . berkeley, sir william, m. on, = =, _n._ berlin decree, = =, _n._ berrien, john m., practitioner before m., = =, _n._ beverly, munford, grand juror on burr, = =, _n._ biddeford, me., and ratification, = =, . biddle, nicholas, management of the bank, = =, ; conduct, _n._ biddle, richard. _see_ green _vs._ biddle. bill of rights, and virginia's extradition act ( ), = =, - ; and national government, ; contest over lack of federal, , ; first ten federal amendments, = =, - . _see also_ government. bingham, william, wealth, = =, _n._ binghamton bridge case, = =, _n._ biography of washington, m. undertakes, financial motive, = =, _n._, = =, , ; importance in life of m., ; estimate of financial return, negotiations with publishers, - ; agreement, , ; delay in beginning, , ; m.'s desire for anonymity, , , ; jefferson's plan to offset, , , , ; solicitation of subscriptions, postmasters as agents, , ; weems as agent, popular distrust, - , ; small subscription, ; list of subscribers, _n._; financial problem, change in contract, , , ; problems of composition, delay and prolixity, - , , - , ; publication of first two volumes, ; m. and praise and criticism, , , - , ; revised edition, , , _n._, ; character of first volumes, - , ; royalty, , ; mistake in plan, compression of vital formative years, , , ; volumes on american revolution, - ; without political effect, , ; character of final volume ( - ), - ; federalists on last volume, ; jefferson on biography, - ; other criticism, - ; edition for school-children, _n._ bishop, abraham, pamphlet on yazoo lands, = =, . bissel, daniel, and burr conspiracy, = =, , . black, george, practitioner before m., = =, _n._ blackstone, sir william, m. and commentaries, = =, . _blackwood's magazine_, on m.'s biography of washington, = =, . blain, ----, and attorney-generalship, = =, . blair, john, commonwealth _vs._ caton, = =, . blair, john d., at barbecue club, = =, . bland, theodoric, on randolph's apostasy ( ), = =, . blennerhassett, harman, beginning of burr's connection, = =, ; joins enterprise, , , ; newspaper letters, ; island as center, gathering there, , - , , - ; attack by militia, flight, ; joins burr, ; indicted for treason, ; on martin's intemperance, _n._; attempt to seduce, ; _nolle prosequi_, , ; on wilkinson at trial, _n._; on jefferson's hatred of m., ; commitment for trial in ohio, ; on m., , ; and baltimore mob, ; wirt's speech on, - . _see also_ burr conspiracy. blennerhassett, mrs. harman, warns burr, = =, . blockade, m.'s protest on paper, = =, . blomfield, samuel, = =, _n._ bloomington, ohio, bank ( ), = =, _n._ boarding-houses at washington ( ), = =, , . bollmann, justus e., takes burr's letter to wilkinson, = =, ; career, _n._ arrested, , ; brought to washington, ; held for trial, - ; discharged by supreme court, - ; interview with jefferson, jefferson's violation of faith, , ; question of evidence and pardon, , , , - ; not indicted, _n._ bonus bill, madison's veto, = =, ; further attempt, . boone, daniel, and british debts, = =, _n._ boston, jacobin enthusiasm, = =, , ; protest on jay treaty, , ; yazoo land speculation, = =, . boston _columbian centinel_. _see_ _columbian centinel_. _boston commercial gazette_, on obligation of contracts, = =, . _boston daily advertiser_, on dartmouth college case, = =, _n._, _n._ _boston gazette_, on bribery in ratification, = =, _n._; on french revolution, = =, . _boston gazette-commercial and political_, on republican party ( ), = =, . _boston independent chronicle_, on the cincinnati, = =, ; on publicola papers, = =, ; seditious utterances, = =, - ; on repeal of judiciary act, , ; on marbury _vs._ madison and impeachment, _n._, _n._ _boston palladium_, on repeal of judiciary act, = =, ; threatens secession, . botetourt, lord, fate of virginia statue, = =, . botta, carlo g. g., jefferson on history, = =, . botts, benjamin, counsel for burr, = =, ; and motion to commit burr for treason, , ; on subpoena to jefferson, ; on overt act, - ; on popular hatred, . boudinot, elias, on adams for chief justice, = =, . bowles, william a., m. and activity, = =, - . bowman _vs._ middleton, = =, . boyce, robert, suit, = =, . boyce _vs._ anderson, = =, . brackenridge, hugh h., and addison, = =, _n._ braddock, edward, defeat, = =, - ; reputation, _n._; effect of defeat on colonists, , , . bradford, william, attorney-general, death, = =, , . bradley, stephen r., and pickering impeachment, = =, _n._ at chase trial, _n._; votes to acquit chase, , . braintree, mass., denounces lawyers, = =, _n._ brandywine campaign, = =, - . brearly, david, holmes _vs._ walton, = =, . breckenridge, john, and kentucky resolutions, = =, , _n._, = =, _n._; in debate on repeal of judiciary act of , , , , - ; attorney-general, _n._ brig wilson _vs._ united states, = =, , . bright, michael, and olmstead case, = =, . brightwell, theodore, and burr conspiracy, = =, . brigstock, william, case, = =, . briscoe _vs._ bank of kentucky, facts, currency of state-owned bank, = =, ; equal division of supreme court, , ; state upheld, story voices m.'s dissent, _n._ british debts, conditions and controversy in virginia, = =, , - ; amount in virginia, _n._; in ratification debate, , , ; before federal courts, ware _vs._ hylton, = =, , - ; in jay treaty, , _n._; disruption of commission on, - ; m. on disruption and compromise, - ; settlement, = =, . brockenbrough, john, grand juror on burr, = =, _n._; political control, = =, ; and redemption of his bank's notes, ; and stock of bank of the united states, . brooks, john, and ratification, = =, _n._ broom, james m., and burr conspiracy, = =, . brown, adam, and livingston steamboat monopoly, = =, . brown, alexander. _see_ brown _vs._ maryland. brown, ethan a., counsel in osborn _vs._ bank, = =, . brown, francis, elected president of dartmouth, = =, ; and kent, _n._ brown, henry b., on dartmouth college case, = =, . brown, john, of r.i., and slave trade ( ), = =, . brown, john, of va. and ky., on lack of patriotism ( ), = =, ; on wythe as professor, ; dinner to, = =, _n._; and pickering impeachment, = =, _n._; indiana canal company, _n._; and burr conspiracy, . brown, noah, and livingston steamboat monopoly, = =, . brown _vs._ maryland, facts, = =, ; counsel, ; m.'s opinion, - ; state license on importers an import duty, - ; and a regulation of foreign commerce, - ; as precedent, , . bruff, james, testimony in burr trial, = =, _n._ bryan, george, and centinel letters, = =, _n._ bryan, joseph, and randolph, = =, . buchanan, j., barbecue club, = =, . buchanan, james, and attack on supreme court, = =, . bullitt, william m., book of m.'s possessed by, = =, _n._ burford, _ex parte_, = =, _n._ burgess, john w., on revolutionary action of framers, = =, _n._ burke, Ædanus, and the cincinnati, = =, ; shipwrecked, = =, _n._ burke, edmund, on french revolution, = =, - . burling, walter, and burr conspiracy, = =, . burnaby, andrew, plea for reunion with england, = =, , . burr, aaron, and x. y. z. mission, = =, ; suppresses wood's book, _n._; and hamilton's attack on adams, ; character, and appearance, , = =, , ; presides over senate, ; and repeal of judiciary act, personal effect, , _n._, ; and pickering impeachment, _n._; arranges senate for chase trial, _n._; as presiding officer of trial, , , , ; effort of administration to conciliate, ; farewell address to senate, ; plight on retirement from vice-presidency, - , ; hamilton's pursuit, _n._; the duel, _n._; jefferson's hostility, isolation, , ; toast on washington's birthday, ; candidacy for governor, ; and federalist secession plots, ; and manhattan company charter, _n._; gratitude to jackson, ; later career, _n._, _n._; and martin, _n._; death, monument, _n._; report on yazoo lands, . _see also_ burr conspiracy; elections (_ _). burr, levi, _ex parte_, = =, _n._ burr conspiracy, and life of m., = =, ; burr's plight on retirement from vice-presidency, - ; jefferson's hostility and isolation of burr, - ; burr and federalist secessionists, ; west and union, - ; popular desire to free spanish america, , ; expected war with spain, ; west as field for rehabilitation of burr, ; his earlier proposal to invade spanish america, ; burr's intrigue with merry, real purpose, - , ; first western trip, ; conference with dayton, ; wilkinson's connection, he proposes mexican invasion, , , , ; and blennerhassett, ; conference at cincinnati, ; in kentucky, , ; plan for ohio river canal, _n._; in tennessee, jackson's relationship, - ; burr and tennessee seat in house, ; no proposals for disunion, , , , ; invasion of mexico, contingent on war, _n._, - , , - , - , , , , - , , ; settlement of washita lands, _n._, , , , , _n._, , _n._, _n._, , , , , ; burr at new orleans, , ; disunion rumors, spanish source, , , ; wilkinson plans to abandon burr, , _n._, ; casa yrujo intrigue, purpose, , _n._; and miranda's plans, , , , ; hopes, , ; wilkinson on frontier, expected to precipitate war, , , , ; burr requests diplomatic position, ; burr's conferences with truxton and decatur, , ; and with eaton, eaton's report of it, - , , ; jefferson and reports of plans, , , , , , _n._; burr's letter to jackson for military preparation, ; burr begins second journey, , ; cipher letter to wilkinson by swartwout and bollmann, - , , ; morgan visit, report of it to jefferson, , ; blennerhassett's enthusiasm, his newspaper letters mentioning disunion, , ; gathering at his island, , , , - , , - ; recruits, , , , , ; wilkinson's letters to adair and smith, ; renewal of disunion reports, , ; burr denies disunion plans, , _n._, , ; arrest and release of burr in kentucky, - ; administration's knowledge of burr's plans, _n._; wilkinson and swartwout, , ; wilkinson's revelations to jefferson, - , , , - ; jefferson's action on revelations, proclamation against expedition, , ; seizure of supplies, ; militia attack on blennerhassett's island, flight of gathering there, ; burr afloat, , - ; popular belief in disunion plan, ; wilkinson's pretended terror, ; his appeal for funds to viceroy, ; and to jefferson, ; his reign of terror at new orleans, - ; jefferson's annual message on, ; mystery and surmises at washington, ; house demand for information, ; special message declaring burr guilty, - ; effect of message on public opinion, ; wilkinson's prisoners brought to washington, , ; swartwout and bollmann held for trial, - ; payment of eaton's claim, _n._; supreme court writ of habeas corpus for swartwout and bollmann, ; attempt of congress to suspend privilege of writ, - ; discharge of swartwout and bollmann, m.'s opinion, - ; constitutional limitation of treason, - ; necessity of overt act, , ; presence at overt act, effect of misunderstanding of m.'s opinion, , _n._, , , , , - , , - ; lack of evidence of treasonable design, - , - , ; judiciary and administration and public opinion, , , ; house debate on wilkinson's conduct, - ; burr's assembly on island at mouth of cumberland, ; boats, _n._; burr in mississippi, grand jury refuses to indict him, - ; release refused, flight and military arrest, - , ; taken to richmond, - ; m.'s warrant for civil arrest, ; preliminary hearing before m., , , ; burr and m. contrasted, , ; bail question, , , , , , , ; burr's statement at hearing, ; m.'s opinion, commits for high misdemeanor only, - ; m.'s conduct and position at trials, , , , , , _n._, , , , , , ; public opinion, appeal to it, jefferson as prosecutor, , - , - , , , , , , - , - , , , , , , , , , , _n._, , _n._, , _n._; m.'s reflection on jefferson's conduct, ; collection of evidence, time question, , - , , , , , ; wilkinson's attendance awaited, , , , , , , , ; supposed overt acts, _n._; money spent by administration, , ; jefferson's violation of faith with bollmann, , ; pardons for informers, , ; dunbaugh's evidence, , , , ; development of burr support at richmond, , , , , ; m. and burr at wickham's dinner, - ; appearance of court, crowd, - ; m. on difficulty of fair trial, ; jackson's denunciation of jefferson and wilkinson, , , ; burr's conduct and appearance in court, , , , , , , , ; burr's counsel, , ; prosecuting attorneys, ; m. and counsel, ; selection of grand jury, - , ; burr's demand for equal rights, , , ; instruction of grand jury, - , , ; hay's reports to jefferson, , ; new motion to commit for treason, - ; jefferson and publication of evidence, , ; legal order of proof, , - ; conduct of eaton at richmond, ; bollmann and pardon, , , - ; demand for wilkinson's letter to jefferson, subpoena _duces tecum_, - , , - , - ; m.'s admonition to counsel, ; m.'s statement on prosecution's expectation of conviction, - ; wilkinson's arrival, conduct and testimony, just escapes indictment, , , , ; testimony before grand jury, - ; indictment of burr and blennerhassett for treason and misdemeanor, , ; other indictments, _n._; attacks on wilkinson, - , ; confinement of burr, , , ; selection of petit jury, , - ; m. seeks advice of justices on treason, ; hay's opening statement, ; testimony on burr's expressions, , ; on overt act, - ; argument of proof of overt act, - ; unprecedented postponement, ; wirt's famous passage, , - ; poison hoax, _n._; irrelevant testimony, , , ; attacks on m., threats of impeachment, jefferson's message, , , , , , - , ; judgment of law and fact, , ; irregular verdict of not guilty, , ; prosecution's advances to blennerhassett and others, _n._; _nolle prosequi_, , ; reception of verdict in richmond, ; trial for misdemeanor, - ; commitment for trial in ohio, , , , _n._; burr's anger at m., , ; and daveiss's pamphlet, ; burr on drawn battle, ; prosecution dropped, ; m. on trial, ; baltimore mob, - ; bibliography, _n._; attempt to amend law of treason, ; attempt to expel senator smith, adams's report, - . burrill, james, jr., on bankruptcy frauds, = =, . burwell, rebecca, and jefferson, = =, . burwell, william a., and attempt to suspend habeas corpus ( ), = =, . butchers' union _vs._ crescent city, = =, _n._ butler, elizur, arrest by georgia, = =, ; pardoned, _n._ _see also_ worcester _vs._ georgia. byrd, william, library, = =, . cabell, benjamin w. s., in virginia constitutional convention, = =, . cabell, joseph, at william and mary, = =, . cabell, joseph c., grand juror on burr, = =, _n._; on swartwout, . cabell, william, at william and mary, = =, ; in the legislature, ; and henry-randolph quarrel, _n._ cabell, william h., opinion in martin _vs._ hunter's lessee, = =, - . cabinet, dissensions in washington's, = =, ; changes in washington's, his offers to m., - , ; disruption of adams's, - ; m.'s appointment as secretary of state, , - , ; republican comment on adams's reorganized, ; salaries ( ), _n._ cabot, george, on democratic clubs, = =, ; on policy of neutrality, _n._; and m. ( ), ; on gerry, , ; on m.'s views on alien and sedition acts, - ; on reopening of french negotiations, , ; on m. in congress, ; on adams and hamiltonians, ; on m. as secretary of state, ; opposition to adams, _n._; in defeat, = =, ; on republican success, ; political character, _n._; on attack on judiciary, ; on protest on repeal of judiciary act, _n._; on louisiana purchase, ; and secession, ; and hartford convention, = =, ; and story, . calder _vs._ bull, = =, . caldwell, elisha b., supreme court sessions in house, = =, . calhoun, john c., and war of , = =, ; bonus bill, ; exposition, ; and non-intercourse with tariff states, _n._ call, daniel, as lawyer, = =, ; m.'s neighbor, = =, ; counsel in hunter _vs._ fairfax's devisee, = =, . callender, james t., on m.'s address ( ), = =, ; on m.'s campaign, ; later attacks on m., _n._, , _n._; trial for sedition, = =, - , - , - , ; proposed public appropriation for, _n._; popular subscription, _n._; pardoned, _n._ camillus letters, = =, . campbell, alexander, as lawyer, = =, ; and richmond meeting on jay treaty, = =, , ; ware _vs._ hylton, , , ; hunter _vs._ fairfax's devisee, ; in virginia constitutional convention, = =, _n._ campbell, archibald, as m.'s instructor, = =, ; as mason, = =, . campbell, charles, on frontier ( ), = =, _n._ campbell, george w., argument in chase trial, = =, ; on burr conspiracy, . campbell, william, in virginia constitutional convention, = =, . campo formio, treaty of, m. on, = =, ; and x. y. z. mission, , . canal, burr's plan for, on ohio river, = =, _n._ _see also_ internal improvements. canning, george, letter to pinkney, = =, . capital, federal, deal on assumption and location, = =, , ; proposed removal to baltimore, = =, . _see also_ district of columbia; washington, d.c. capitol, of virginia ( ), = =, ; federal, in , = =, , ; religious services there, _n._; quarters for supreme court, _n._ card playing in virginia, = =, _n._ carlisle, pa., ratification riot, = =, . carr, dabney, and cherokee indians controversy, = =, . carrington, edward, supports jay treaty, = =, ; and m.'s advice on cabinet positions, - , ; on virginia and jay treaty, , , , , _n._, , ; inaccuracy of reports to washington, _n._; and richmond meeting on jay treaty, , ; m.'s neighbor, ; verdict in burr trial, = =, , . carrington, eliza (ambler), on arnold's invasion, = =, _n._; on first and later impressions of m., - ; on richmond in, , ; m.'s sympathy, ; on prevalence of irreligion, ; on attacks on m.'s character, = =, , ; on mrs. marshall's invalidism, _n._; m.'s sister-in-law, = =, _n._ carrington, paul, as judge, = =, , = =, ; candidacy for ratification convention, = =, . carroll, charles, opposition to adams, = =, _n._; on hamilton's attack on adams, _n._ carter, john, and tariff, = =, _n._, . carter, robert, landed estate, = =, _n._; character, _n._; library, . cary, mary, courtship, = =, _n._ cary, wilson m., on m.'s ancestry, = =, . casa yrujo, marqués de, and burr, = =, , _n._, ; on wilkinson, _n._ cecil county, md., and burr trial, = =, _n._ centinel letters in opposition to federal constitution, = =, - ; probable authors, _n._ centralization. _see_ nationalism. chancery. _see_ equity. chandler, john, case, = =, _n._ channing, edward, on washington, = =, ; on origin of kentucky resolutions, = =, _n._; on attacks on neutral trade, = =, _n._; on purpose of orders in council, _n._; on minister jackson, _n._; on causes of war of , _n._ chapman, h., on opposition to ratification, = =, . chapman, nathaniel, on death of m., = =, . charleston, s.c., jacobin enthusiasm, = =, . charters. _see_ dartmouth college _vs._ woodward. chase, samuel, and adams, = =, _n._; and common-law jurisdiction, = =, _n._; conduct in sedition trials, , , ; fries trial, ; on the stump, ; on declaring acts void, , ; house impeaches, ; anti-republican charge to grand jury, , ; arousing of public opinion against, ; articles of impeachment, , ; despair of federalists, ; effect of yazoo frauds on trial, ; opening of trial, ; arrangement of senate, , ; burr as presiding officer, efforts of administration to win him, - ; seat for chase, ; appearance, ; career, _n._, _n._; counsel, ; randolph's opening speech, - ; testimony, - ; m. as witness, - ; giles-randolph conferences, ; argument of manager early, ; of manager campbell, ; of hopkinson, - ; indictable or political offense, , , , - ; arguments of key and lee, ; of martin, - ; trial as precedent, ; trial as political affair, ; argument of manager nicholson, - ; of manager rodney, - ; and chief justiceship, _n._; argument of manager randolph, ; randolph's praise of m., - ; trial and secession, ; vote and acquittal, - ; trial as crisis, ; effect on republicans, - ; on m., ; chase and swartwout and bollmann case, _n._; and fletcher _vs._ peck, _n._; death, = =, . chastellux, marquis de, on william and mary, = =, _n._; on hardships of travel, ; on drinking, = =, _n._ chatham, earl of, fate of charleston statue, = =, . checks and balances of federal constitution, ratification debate on, = =, , ; and repeal of judiciary act of , = =, , , . _see also_ division of powers; government; separation of powers; union. cherokee indians, power, = =, ; origin of georgia contest, = =, , ; jackson's attitude, , , , , ; first appeal to supreme court, ; popular interest and political involution, , ; and removal, ; monograph on contest, _n._; tassels incident, georgia's defiance of supreme court, - ; cherokee nation _vs._ georgia, georgia ignores, ; m.'s opinion, cherokees not a foreign nation, - ; m.'s rebuke of jackson, ; dissent from opinion, _n._; origin of worcester _vs._ georgia, arrest of missionaries, , ; georgia refuses to appear before court, ; counsel, ; m.'s opinion, no state control over indians, - ; mandate of court ignored, ; final defiance of court, graves case, _n._; removal of indians, _n._ cherokee nation _vs._ georgia. _see_ cherokee indians. _chesapeake-leopard_ affair, jefferson and, = =, - , = =, . chester, elisha w., counsel in worcester _vs._ georgia, = =, . cheves, langdon, and war of , = =, . children, m.'s fondness for, = =, . chisholm _vs._ georgia, = =, _n._, = =, _n._ choate, rufus, on marbury _vs._ madison, = =, ; on webster's tribute to dartmouth, = =, . choctaw indians, power, = =, . christie, gabriel, and slavery, = =, . church ----, and x. y. z. mission, = =, . _cincinnati_, first steamboat, = =, _n._ cincinnati, order of the, popular prejudice against, = =, - . cipher, necessity of use, = =, _n._ circuit courts, supreme court justices in, = =, , ; rights of original jurisdiction, = =, . _see also_ judiciary; judiciary act of . circuit riders, work, = =, _n._ citizenship, virginia bill ( ), = =, . _see also_ naturalization. civil rights, lack, = =, _n._ _see also_ bill of rights. civil service, m. and office-seekers, = =, ; adams and partisan appointments, = =, ; jefferson's use of patronage, _n._, . _see also_ religious tests. claiborne, william c. c., and election of jefferson, reward, = =, _n._; and wilkinson and burr conspiracy, , , , ; and livingston, = =, ; and steamboat monopoly, . clark, daniel, and burr, = =, , ; and disunion rumors, . clark, eugene f., acknowledgment to, = =, _n._ clark, george rogers, surveyor, = =, _n._; indiana canal company, = =, _n._ classes, in colonial virginia, = =, - ; after the revolution, , . clay, charles, in virginia ratification convention, = =, . clay, henry, duelist, = =, _n._; and burr conspiracy, , , _n._; on daveiss and burr, _n._; as exponent of nationalism, = =, , ; as practitioner before m., , ; and green _vs._ biddle, ; counsel in osborn _vs._ bank, ; in debate on supreme court, ; kremer's attack, _n._; randolph duel, _n._; and report on m. and election of , ; and american colonization society, ; and recharter of bank of the united states, ; compromise tariff, . clayton, philip, and yazoo lands act, = =, , . clayton, samuel, in virginia constitutional convention, = =, _n._ _clermont_, fulton's steamboat, = =, _n._ clinton, de witt, presidential candidacy ( ), = =, . clinton, george, letter for second federal convention, = =, - , , = =, , _n._; elected vice-president, = =, ; defeats recharter of bank of the united states, = =, . clopton, john, deserts congress ( ), = =, _n._; candidacy ( ), . clothing. _see_ dress. cobbett, william, on american enthusiasm over french revolution, = =, _n._; as conservative editor, _n._ cockade, black, = =, . cocke, william, on judiciary act of , = =, _n._; at chase trial, . cohens _vs._ virginia, conditions causing opinion, its purpose, = =, - , ; facts, , ; as moot case, ; counsel, argument, ; m.'s opinion on appellate power, - ; statement of state rights position, ; supremacy of national government, - ; federal judiciary as essential agency in this supremacy, - ; resistance of disunion, , ; state as party, eleventh amendment, - ; hearing on merits, ; roane's attack on, , ; rebuke of concurring republican justices, , ; m. on attacks, - ; other virginia attacks, _n._; jefferson's attack on principles, m. on it, - , - ; attack as one on union, ; taylor's attack on principles, - . coleman, _vs._ dick and pat, = =, _n._ colhoun, john e., and repeal of judiciary act, = =, _n._, _n._ college charters as contracts. _see_ dartmouth college _vs._ woodward. collins, josiah, granville heirs case, = =, . collins, minton, on economic division on ratification, = =, ; on opposition to ratification, . colston, rawleigh, purchase of fairfax estate, = =, _n._, , = =, , _n._; m.'s debt, = =, . _columbian centinel_, on republicans ( ), = =, ; on judiciary debate ( ), _n._, _n._, . commerce, effects of lack of transportation, = =, ; madison on need of uniform regulation, ; jefferson's dislike, ; federal powers in ratification debate, , ; foreign, and south carolina negro seamen act, elkison case, = =, , ; power to regulate, and internal improvements, ; power over navigation, brig wilson _vs._ united states, , ; doctrine of common carrier and transportation of slaves, . _see also_ bankruptcy; brown _vs._ maryland; communication; economic conditions; gibbons _vs._ ogden; internal improvements; navigation acts; neutral trade, new york _vs._ miln; slave trade; tariff. common carrier, doctrine, and transportation of slaves, = =, . common law, federal jurisdiction, = =, _n._, = =, - , _n._, , , . commonwealth _vs._ caton, = =, . communication, roads of colonial virginia, = =, _n._; at period of confederation and later, hardships of travel, , - , = =, _n._, _n._; lack as index of political conditions, = =, , ; sparseness of population, ; mails, - ; character of newspapers, - ; conditions breed demagogism, - ; local isolation, = =, . _see also_ commerce. commutable act of virginia, = =, . concurrent jurisdiction of federal and state courts, = =, . _see also_ appellate jurisdiction. concurrent powers, m.'s exposition in ratification debate, = =, ; and state bankruptcy laws, = =, - ; commercial, . confederation, washington on state antagonism, = =, _n._; effect of british-debts controversy, , _n._; financial powerlessness, , - , , , , - ; effort for power to levy impost, ; debt problem, - , ; proposed power to pass navigation acts, , ; social conditions during, - ; popular spirit, , ; opportunity for demagogism, - , , ; shays's rebellion, - ; impotence of congress, ; prosperity during, ; responsibility of masses for failure, ; responsibility of states for failure, - ; antagonistic state tariff acts, , ; economic basis of failure, - ; jefferson on, ; randolph on, ; henry's defense, , , ; m.'s biography of washington on, = =, - . congress, ratification debate on character, = =, , , , , ; m. on discretionary powers ( ), ; _first_: titles, = =, ; election in virginia, , ; amendments, , ; funding, assumption, and national capital, - ; judiciary, = =, - ; _third_: yazoo lands, , , ; _fourth_: jay treaty, = =, , ; yazoo lands, = =, ; _fifth_: adams's address on french depredations, = =, , ; x. y. z. dispatches, , , ; war preparations, ; alien and sedition acts, ; georgia's western claims, = =, ; _sixth_: m.'s campaign for, = =, - , , - ; m.'s importance to federalists, , , ; adams's address at first session, ; reply of house, - ; and presidential campaign, ; and death of washington, - ; m.'s activity, ; cession of western reserve, ; powers of territorial governor, ; insult to randolph, ; marine corps, - ; land grants for veterans, ; and slavery, ; sedition law, ; m.'s independence, , ; disputed election bill, - ; jonathan robins case, - ; reduction of army, - ; bankruptcy bill, , ; results of first session, ; french treaty, ; m. and adams's address at second session, , ; jefferson-burr contest, - ; judiciary bill, - , = =, , ; reduction of navy, _n._; georgia cession, ; _seventh_: judiciary in jefferson's message, - ; repeal of judiciary act of , - ; supreme court, - ; _eighth_: impeachment of pickering, - ; chase impeachment, - ; electoral vote counting, ; burr's farewell address, ; yazoo claims, - ; _ninth_: jefferson's annual message on burr conspiracy, ; demand for information and special message, ; payment of eaton's claim, _n._; attempt to suspend habeas corpus, - ; burr conspiracy debate, - ; non-importation, = =, ; _tenth_: _chesapeake-leopard_ affair, = =, ; attempt to amend law of treason, ; attempt to expel senator smith, - ; embargo, = =, , , , ; force act, ; non-intercourse, ; _eleventh_: yazoo claims, = =, - ; jackson resolution, = =, ; louisiana, ; bank, - ; _twelfth_: yazoo claims, = =, - ; war, = =, ; _thirteenth_: yazoo claims, = =, ; st. cloud decree resolution, = =, ; bank, ; _fourteenth_: bank, ; salaries, _n._; bonus bill, ; _fifteenth_: bank, _n._, , ; internal improvements, ; _sixteenth_: bankruptcy, , ; missouri, - ; _seventeenth_: judiciary, - ; _eighteenth_: judiciary, , , , , ; internal improvements, - ; presidential election, _n._; tariff, ; _nineteenth_: supreme court, - ; _twentieth_: tariff, ; _twenty-first_: supreme court, - ; cherokee indians, ; hayne-webster debate, - ; _twenty-second_: judiciary, _n._; recharter of bank, - ; river and harbor improvement, ; tariff, , , . conkling, roscoe, resemblance to pinkney, = =, _n._ connecticut, ratification, = =, ; cession of western reserve, = =, , = =, ; and kentucky and virginia resolutions, _n._; and embargo, = =, ; and war of , _n._; and livingston steamboat monopoly, . connecticut reserve, cession, = =, ; granger's connection, = =, . conrad and mcmunn's boarding-house, = =, . conscription, for war of , = =, . conservatism, growth, = =, , ; m.'s extreme, = =, , , = =, , , , - , . _see also_ democracy; nationalism; people. consolidation. _see_ nationalism. constitution, question of amending virginia's ( ), = =, ; attack on virginia's ( ), = =, _n._; massachusetts convention ( ), = =, . _see also_ federal constitution; virginia constitutional convention. continental congress, denunciation by army officers, = =, ; flight, ; and intrigue against washington, , ; decline, ; washington's plea for abler men and harmony, - , . _see also_ confederation. contraband, in jay treaty and x. y. z. mission, = =, ; m. on british unwarranted increase of list, - . contracts, obligation of, m.'s first connection with legislative franchise, = =, ; and with ideas of contract, , ; in debate on ratification, ; m. on, as political factor under confederation, = =, - ; m. on ( ), and new national government, ; importance of m.'s expositions, , - , = =, , , - ; legal-tender violation, = =, ; origin of clause in federal constitution, _n._, _n._; effect of constitutional clause on public mind, ; and repeal of yazoo land act, , , ; discussions of repeal, , ; congressional debate on yazoo claims, , , ; m.'s interest in stability, ; m.'s opinion in fletcher _vs._ peck, repeal of yazoo act as impairment, - ; and corrupt legislation, ; involved in sturges _vs._ crowninshield, = =, , ; meaning in constitution, ; contract of future acquisitions and insolvency laws, ; not limited to paper money obligations, ; not necessary to enumerate particular subjects, ; humanitarian limitations, , ; broad field without historical limitations, - , , ; new jersey _vs._ wilson, exemption of lands from taxation, - ; dartmouth college case, right to change charter of public institution, _n._, , ; limitation to private rights, , ; colleges as eleemosynary not civil corporations, - , , , ; terrett _vs._ taylor, private rights under grants to towns, _n._, ; precedents in dartmouth college case, - ; college charters as contracts, ; purpose of college does not make it public institution, ; nor does act of incorporation, - ; rights of non-profiting trustees, , ; and public policy, - ; as element in strife of political theories, ; and kentucky occupying claimant law, - , - ; ogden _vs._ saunders, future, not violated by insolvency laws, ; m.'s dissent, . conway cabal, = =, - . cook, daniel p., on missouri question, = =, . cooke, ----, tavern at raleigh, = =, . cooke, john r., in virginia constitutional convention, = =, _n._ cooper, thomas, sedition trial, = =, , , . cooper, william, on jefferson-burr contest, = =, _n._ cooper _vs._ telfair, = =, . corbin, francis, and calling of virginia ratification convention, = =, ; in ratification convention; characterized, ; in the debate, , ; on detailed debate, ; on badges of aristocracy, = =, . cornwallis, earl of, brandywine, = =, . corporations, m.'s definition, = =, ; m.'s opposition to state regulation, ; presumptive authorization of agency, m.'s dissent, , . _see also_ contracts. correspondence, m.'s negligence, = =, _n._, = =, _n._ cotton, effect of invention of gin, = =, . council of state of virginia, m.'s election to, = =, ; as a political machine, , _n._; m. forced out, , . counterfeiting, of paper money, = =, , = =, . county court system of virginia, political machine, = =, , , - ; debate in constitutional convention on ( ), - . court days, as social event, = =, . _see also_ judiciary. court martial, m. on jurisdiction, = =, , . coxe, tench, on british depredations on neutral trade, = =, _n._ craig, hiram. see craig _vs._ missouri. craig _vs._ missouri, facts, state loan certificates, = =, ; m.'s opinion, certificates as bills of credit, - ; his reply to threat of disunion, ; dissenting opinions, ; and renewal of attack on supreme court, - ; repudiated, _n._ cranch, william, and trial of swartwout and bollmann, = =, , . crawford, thomas h., and attack on supreme court, = =, . crawford, william h., and yazoo frauds, = =, ; and recharter of first bank of the united states, = =, , ; and treasury portfolio ( ), _n._; and american colonization society, . creek indians, power, = =, . crèvecoeur, hector st. john de, on frontier farmers, = =, _n._ crime, m. on jurisdiction over cases on high seas, = =, - ; federal punishment of common-law offenses, = =, - . _see also_ alien and sedition acts; extradition. crisis of , banking and speculation, = =, - ; bank suits to recover loans, , ; popular demand for more money, ; character of state bank notes, - ; early mismanagement of second bank of the united states, ; its reforms and demands on state banks force crisis, - ; popular hostility to it, , , ; lax bankrupt laws and frauds, - ; influence on m., ; distress and demagoguery, ; movement to destroy bank of united states through state taxation, - ; m.'s decisions as remedies, , . _see also_ dartmouth college _vs._ woodward; m'culloch _vs._ maryland; sturges _vs._ crowninshield. crissy, james, publishes biography of washington, = =, _n._ crouch, richard, on m., = =, _n._ crowninshield, richard. see sturges _vs._ crowninshield. culpeper county, va., minute men, = =, . curtius letters on m.'s candidacy ( ), = =, , ; recalled, = =, . cushing, william, and chief justiceship, = =, _n._; fletcher _vs._ peck, , _n._; death, = =, , . cushman, joshua, on expansion, = =, _n._ cutler, manasseh, on chase trial, = =, _n._, _n._, _n._, . daggett, david, counsel in sturges _vs._ crowninshield, = =, ; on holmes in dartmouth college case, _n._ dallas, alexander j., in fries trial, = =, ; and burr, _n._; counsel in _nereid_ case, = =, . dana, edmund p., testimony in burr trial, = =, . dana, francis, and x. y. z. mission, = =, ; sedition trial, = =, - ; on declaring acts void, . dana, samuel w., jonathan robins case, = =, , ; in judiciary debate ( ), = =, , ; on chandler case, _n._; and eaton's report on burr's plans, _n._ dandridge, julius b., case, = =, . daniel, henry, attack on supreme court, = =, . daniel, william, grand juror on burr, = =, _n._ dartmouth, earl of, and dartmouth college, = =, . dartmouth college _vs._ woodward, origin of college, charter, = =, - ; troubles, - ; political involution, ; state reorganization and annulment of charter, , ; rival administrations, - ; story's relationship, , _n._, , , , _n._, , ; counsel, , , - , ; case, ; story of recruiting indian students, _n._; state trial and decision, - ; appeal to supreme court, lack of public interest there, ; argument, - ; effort to place case on broader basis, , , ; webster's tribute to dartmouth, - ; continued, ; influences on justices, kent, - , _n._, _n._; fees and portraits, _n._; value of shirley's book on, _n._, _n._; pinkney's attempt to reopen, frustrated by m., - , ; m.'s opinion, - ; judgment _nunc pro tunc_, ; later public attention, ; far-reaching consequences, modern attitude, - ; recent discussions, _n._ _see also_ contracts. daveiss, joseph hamilton, federal appointment, = =, _n._; and burr conspiracy, = =, - ; middle name, _n._; pamphlet, . davis, ----, on "hail, columbia!" = =, _n._ davis, david, on dartmouth college case, = =, . davis, john, and m.'s candidacy for president, = =, ; identity, _n._ davis, judge john, united states _vs._ palmer, = =, . davis, sussex d., anecdote of m., = =, _n._ davis, thomas t., in debate on repeal of judiciary act, = =, . davis, william r., on judiciary act of , = =, ; granville heirs case, = =, ; report on supreme court, . dawson, henry b., on bribery in massachusetts ratification, = =, _n._ dawson, john, in virginia ratification convention, = =, . dawson's lessee _vs._ godfrey, = =, _n._ dayson, aquella, sells land to m., = =, . dayson, lucy, sells land to m., = =, . dayton, jonathan, support of adams ( ), = =, ; in debate on repeal of judiciary act, = =, ; and pickering impeachment, , _n._; and burr conspiracy, , , , ; career, _n._; indiana canal company, _n._; _nolle prosequi_, ; security for burr, . deane, silas, and beaumarchais, = =, _n._ dearborn, henry, and ogden-smith trial, = =, _n._ debating at william and mary, = =, . debts, spirit of repudiation of private, = =, , ; imprisonment for, = =, _n._, _n._, = =, , ; and hostility to lawyers, = =, _n._; m. on political factor under confederation, - . _see also_ british debts; contracts; crisis of ; finances; public debts. decatur, stephen, and burr conspiracy, = =, , ; at trial of burr, testimony, , , _n._; career and grievance, _n._ declaration of independence, anticipated, = =, ; m.'s biography of washington on, . declaring acts void, henry on, = =, ; m. on, in ratification debate, , , = =, ; jefferson's suppressed paragraph on ( ), = =, ; congressional debate on judicial right ( ), , , , - , , , , , , ; m.'s preparation for assertion of power, , ; kentucky and virginia resolutions and state rights doctrine, - ; effect of this, ; necessity of decision on power, , ; problem of vehicle for assertion, , - ; dangers involved in m.'s course, - ; question in federal convention, - ; importance of marbury _vs._ madison, unique opportunity, , , , , ; no new argument in it, m.'s knowledge of previous opinions, - , - ; condition of supreme court as obstacle to m.'s determination, ; dilemma of marbury _vs._ madison as vehicle, solution, - ; opinion on power in marbury _vs._ madison, - ; effect of decision on attacks on judiciary, , , ; jefferson and opinion, , , ; lack of public notice of opinion, - ; m. suggests legislative reversal of judicial opinions, , ; bibliography, ; m.'s avoidance in federal laws, = =, , ; his caution in state laws, ; supreme court action on state laws, , ; proposed measures to restrict it, - . _see also_ judiciary; and, respecting state laws, appellate jurisdiction; contracts; eleventh amendment, and the following cases: brown _vs._ maryland; cohens _vs._ virginia; craig _vs._ missouri; dartmouth college _vs._ woodward; fletcher _vs._ peck; gibbons _vs._ ogden; green _vs._ biddle; m'culloch _vs._ maryland; martin _vs._ hunter's lessee; new jersey _vs._ wilson; osgood _vs._ bank; sturges _vs._ crowninshield; terrett _vs._ taylor; worcester _vs._ georgia. dedham, mass., denounces lawyers, = =, _n._ delaware, ratification, = =, . delaware indians, new jersey land case, = =, - . demagogism, opportunity and tales under confederation, = =, - , , ; j. q. adams on opportunity, = =, ; and crisis of, , = =, . _see also_ government. democracy, growth of belief in restriction, = =, , , - , ; union with state rights, = =, ; m.'s extreme lack of faith in, , , = =, , , , - , ; chaotic condition after war of , = =, . _see also_ government; people; social conditions. democratic party, as term of contempt, = =, _n._, = =, _n._ _see also_ republican party. democratic societies, development, = =, ; opposition and support, - ; decline, ; and whiskey insurrection, ; and jay's negotiations, . denmark, and barbary powers, = =, . dennison, ----, and yazoo lands act, = =, . de pestre, colonel, attempt to seduce, = =, _n._ despotism, demagogic fear, = =, ; feared under federal constitution, ; in ratification debate, , , , , , - , , , . dexter, samuel, and m. ( ), = =, ; secretary of war, , , ; _aurora_ on, ; seals m.'s commission, ; and m.'s logic, = =, ; as practitioner before m., ; counsel in martin _vs._ hunter's lessee, ; as court orator, . dickinson, john, in federal convention, on declaring acts void, = =, _n._ dickinson, philemon, and intrigue against adams, = =, _n._ _diligente, amelia_ case, = =, . dinners, as form of social life in richmond, = =, ; of quoit club, = =, ; m.'s lawyer, , . direct tax, fries's insurrection and pardon, = =, - , , = =, - . _see also_ taxation. directory, m. declines mission to, = =, - ; th fructidor, , _n._, _n._; m. on it, , - ; m.'s analysis of economic conditions, - ; english negotiations ( ), ; preparations against england ( ), , ; need of funds, , . _see also_ franco-american war; french revolution; x. y. z. mission. discipline, in revolutionary army, = =, , . disestablishment, virginia controversy, = =, , ; in new hampshire, = =, , _n._ disputed elections bill ( ), = =, - . district-attorneys, united states, plan to remove federalist, = =, . district of columbia, popular fear of, = =, , , , , . _see also_ capital; washington, d.c. _divina pastora_ case, = =, . division of powers, arguments on, during ratification, = =, , , , , , , ; supremacy of national powers, = =, , - , - , . _see also_ nationalism. divorce, by legislation, = =, _n._ doddridge, philip, in virginia constitutional convention, = =, _n._; on attack on supreme court, . domicil in enemy country, enemy character of property, = =, , . dorchester, lord, indian speech, = =, . drake, james, and sedition trial, = =, . dred scott case, and declaring federal acts void, = =, _n._ dress, frontier, = =, ; of virginia legislators, , ; contrast of elegance and squalor, ; of early national period, = =, , . drinking, in colonial and later virginia, = =, ; rules of william and mary college on, _n._; extent (c. ), _n._, - , = =, _n._, = =, , _n._; m.'s wine bills, = =, ; distilleries, = =, _n._; at washington, = =, ; frontier, = =, _n._ duane, william, prosecution by senate, = =, _n._; trial for sedition, = =, _n._; advances to blennerhassett, . _see also_ _aurora_. duché, jacob, beseeches washington to apostatize, = =, . duckett, allen b., and swartwout and bollmann, = =, . dueling, prevalence, = =, _n._ dunbar, thomas, in braddock's defeat, = =, . dunbaugh, jacob, and trial of burr, evidence, = =, , , , ; credibility destroyed, . dunmore, lord, norfolk raid, = =, - . dutrimond, ----, and x. y. z. mission, = =, . duval, gabriel, appointed justice, = =, ; and dartmouth college case, ; dissent in ogden _vs._ saunders, _n._; resigns, , ; and briscoe _vs._ bank and new york _vs._ miln, . dwight, theodore, on republican rule ( ), = =, . early, peter, argument in chase trial, = =, . eaton, john h., on supreme court, = =, . eaton, william, on jefferson, = =, _n._; antagonism to jefferson, ; career in africa, _n._, _n._; conference with burr, report of it, - , ; affidavit on burr's statement, , ; claim paid, _n._; at trial of burr, testimony, , , , ; loses public esteem, . economic conditions, influence on federal convention and ratification, = =, , , , , _n._, _n._; prosperity during confederation, ; influence on attitude towards french revolution, = =, ; and first parties, , _n._, _n._ _see also_ banking; commerce; contracts; crisis of ; land; prices; social conditions. _edinburgh review_, on m.'s biography of washington, = =, ; on united states ( ), = =, _n._ education, of colonial virginia women, = =, _n._, _n._; in colonial virginia, ; m.'s, , , ; condition under confederation, - ; m. on general, = =, . _see also_ dartmouth college _vs._ woodward; social conditions. eggleston, joseph, grand juror on burr, = =, . egotism, as national characteristic, = =, . eighteenth fructidor _coup d'état_, = =, , _n._, _n._; m. on, , - ; pinckney and, _n._ elections, federal, in virginia ( ), = =, , ; ( ), ; state, in virginia ( ), - ; henry and presidential candidacy ( ), - ; m.'s campaign for congress ( ), - , , - ; issues in , ; methods and scenes in virginia, . _ _: federalist dissensions, hamiltonian plots, = =, , , - , , ; issues, , ; influence of campaign on congress, ; federalist bill to control, m.'s defeat of it, - ; effect of defeat of bill, ; effect of federalist dissensions, ; adams's attack on hamiltonians, , ; adams's advances to jefferson, ; republican ascendancy, , ; and new french negotiations, , ; m.'s efforts for federalist harmony, ; hamilton's attack on adams, - ; campaign virulence, ; size of republican success, ; federalist press on result, _n._; jefferson-burr contest in congress, - ; jefferson's fear of federalist intentions, ; reasons for federalist support of burr, - ; burr and republican success, _n._; m.'s neutrality, - ; his personal interest in contest, , ; influence of his neutrality, ; burr's refusal to favor federalist plan, _n._; _washington federalist's_ contrast of jefferson and burr, _n._; question of deadlock and appointment of a federalist, - ; jefferson's threat of armed resistance, ; federalists ignore threat, , _n._; effect of burr's attitude and jefferson's promises, - , = =, ; election of jefferson, = =, ; rewards to republican workers, = =, _n._ _ _: campaign and attacks on judiciary, = =, . _ _: m.'s candidacy, = =, - ; clinton as candidate, ; possible victory if m. had been nominated, . _ _: m. and, - . _ _: bank as issue, _n._, ; m.'s attitude, . electoral vote, counting in open session, = =, . eleventh amendment, origin, = =, _n._, = =, ; purpose and limitation, = =, ; and suits against state officers, , - . elkison, henry, case, = =, . elliot, james, on wilkinson's conduct, = =, . elliot, jonathan, inaccuracy of _debates_, = =, _n._ ellsworth, oliver, and presidential candidacy ( ), = =, ; on sedition law, ; resigns chief justiceship, ; and common-law jurisdiction on expatriation, = =, , = =, ; and judiciary act of , = =, , ; on obligation of contracts, _n._ ellsworth, william w., and attack on supreme court, = =, . emancipation, as involved in nationalist development, = =, , , . embargo act, = =, ; effect, opposition, - ; m.'s opinion, , ; force act, ; repeal, . _see also_ neutral trade. emmet, thomas a., as practitioner before m., = =, , _n._; counsel in _nereid_ case, ; appearance, ; counsel in gibbons _vs._ ogden, , . eppes, john w., and attempt to suspend habeas corpus ( ), = =, ; and amendment on judiciary, = =, _n._ eppes, tabby, m.'s gossip on, = =, . equality, demand for division of property, = =, , ; lack of social ( ), = =, . equity, m. and virginia act on proceedings ( ), = =, - . _see also_ judiciary. erskine, david m., non-intercourse controversy, = =, . everett, edward, and madison's views on nullification, = =, . _exchange case_, = =, - . excise, unpopularity of federal, = =, ; new england and, _n._ _see also_ taxation; whiskey insurrection. exclusive powers, and state bankruptcy laws, = =, - . _see also_ gibbons _vs._ ogden. expatriation, ellsworth's denial of right, = =, ; and impressment, _n._ _see also_ impressment. exterritoriality of foreign man-of-war, = =, - . extradition, foreign, virginia act ( ), = =, - ; jonathan robins case, = =, - . "faction," as a term of political reproach, = =, _n._ fairfax, baron, career and character, = =, - ; influence on washington and m.'s father, . _see also_ fairfax estate. fairfax, denny m., m.'s debt, = =, ; and hunter's grant, = =, ; sale of land to m.'s brother, _n._ fairfax estate, m.'s argument on right, = =, - ; m.'s purchase and title, , = =, , , - , , , = =, ; in reconstruction debate, = =, - , ; jay treaty and, = =, ; controversy over title, virginia legislature and compromise, , , = =, - ; and judiciary bill ( ), = =, ; m.'s children at, = =, ; m.'s life at, . see also martin _vs._ hunter's lessee. fairfax's devisee _vs._ hunter's lessee. _see_ martin _vs._ hunter's lessee. falls of the ohio, burr's plan to canalize, = =, _n._ farmicola, ----, tavern in richmond, = =, . farrar, timothy, report of dartmouth college case, = =, _n._ fauchet, jean a. j., and randolph, = =, . fauquier county, va., minute men, = =, . faux, william, on frontier inhabitants, = =, , _n._, , _n._ federal constitution, constitutionality of assumption, = =, ; bank, - ; and party politics, ; excise, ; neutrality proclamation, ; treaty-making power, , , , - , ; alien and sedition acts, , . _see also_ amendment; federal convention; government; marshall, john (_chief justice_); nationalism; ratification; state rights. federal convention, economic mainspring, = =, , , , ; demand for a second convention, , , , , - , , = =, , _n._; class of framers, = =, _n._; secrecy, , , ; revolutionary results, - , , , ; and declaring acts void, = =, - ; m.'s biography of washington on, ; and treason, ; on obligation of contracts, _n._, _n._; commerce clause, = =, . _see also_ ratification. federal district. see district of columbia. _federalist_, influence on marbury decision, = =, , . federalist party, use, = =, - ; economic basis, _n._; leaders impressed by m. ( ), ; effect of x. y. z. mission, , ; fatality of alien and sedition acts, , ; issues in , ; french hostility as party asset, , , ; and adams's renewal of negotiations, - ; and pardon of fries, - ; m.'s importance to, in congress, , ; m. and breaking-up, , , ; hopes in control of enlarged judiciary, , ; in defeat, on republican rule, = =, - ; jefferson on forebodings, ; judiciary as stronghold, republican fear, , , ; and plans against judiciary, ; and perpetual allegiance, _n._; and louisiana purchase, - ; and impeachment of chase, ; moribund, , ; m. on origin, - ; secession plots and burr, , ; intrigue with merry, , ; as british partisans, = =, , , , ; and _chesapeake-leopard_ affair, ; and embargo, - ; and erskine, ; and war of, , , , , . _see also_ congress; elections; politics; secession. fenno, john, on troubles of conservative editor, = =, . fertilizing co. _vs._ hyde park, = =, _n._ few, william, and judiciary act of , = =, . fiction, m.'s fondness, = =, , = =, . field, peter, = =, _n._ filibustering, first act against, = =, . finances, powerlessness of confederation, = =, , - , , , , - . _see also_ banking; bankruptcy; debts; economic conditions; money; taxation. finch, francis m., on treason, = =, . findley, john, on yazoo claims, = =, . finnie, william, relief bill, = =, . fisher, george, m.'s neighbor, = =, ; and bank of virginia, = =, . fiske, john, on dartmouth college case, = =, . fitch, jabez g., and lyon, = =, , . fitch, john, steamboat invention, = =, _n._, _n._ fitzhugh,----, at william and mary, = =, . fitzhugh, nicholas, and swartwout and bollmann, = =, . fitzhugh, william h., in virginia constitutional convention, = =, _n._ fitzpatrick, richard, in philadelphia society, = =, . fleming, william, of virginia court of appeals, = =, . "fletcher of saltoun," attack on m., = =, _n._ fletcher, robert. _see_ fletcher _vs._ peck. fletcher _vs._ peck, decision anticipated, = =, ; importance and results, , - , ; origin, ; before circuit court, ; before supreme court, first hearing, ; collusion, johnson's separate opinion, , , ; second hearing, ; m.'s opinion, - ; congressional denunciation of decision, - . fleury, louis, stony point, = =, . flint, james, on newspaper abuse, = =, _n._; on bank mania, , , _n._, ; on bankruptcy frauds, . flint, timothy, on m.'s biography of washington, = =, . florida, bowles's activity, = =, - ; m. on annexation and territorial government, = =, - . _see also_ west florida. floyd, davis, indiana canal company, = =, _n._; burr conspiracy, . floyd, john, and nullification, = =, . folch, visente, on wilkinson, = =, _n._, _n._ food, frontier, = =, ; of period of the confederation, - . foot, samuel a., resolution and hayne-webster debate, = =, _n._ force act ( ), = =, . fordyce, captain, battle of great bridge, = =, . foreign relations, policy of isolation, = =, , , = =, . _see also_ neutrality. forsyth, john, attack on supreme court, = =, . foster, thomas f., attack on supreme court, = =, . foushee, william, richmond physician, = =, _n._; candidacy for ratification convention, ; and richmond meeting on jay treaty, = =, ; grand juror on burr, = =, . fowler, john, on judiciary act of , = =, _n._ france, american alliance, = =, , ; hatred of federalists, = =, - , . _see also_ directory; franco-american war; french and indian war; french revolution; napoleonic wars; neutral trade; x. y. z. mission. franco-american war, preparations, = =, , , ; washington on, ; jefferson and prospect, ; french hostility as federalist asset, , , ; political result of reopening negotiations, - , , ; naval exploits, ; m. and renewal of negotiations, ; m. on need of continued preparedness, debate on reducing army ( ), , , - ; army as political issue, ; _sandwich_ incident, ; england and renewal of negotiations, ; negotiations and presidential campaign, , ; m. and prospects of negotiations, , ; treaty, ; treaty in senate, ; _amelia_ case, = =, , . _see also_ x. y. z. mission. franklin, benjamin, albany plan, = =, _n._; on newspaper abuse, , , = =, ; in federal convention, on declaring acts void, _n._ franklin, jesse, and pickering impeachment, = =, _n._; of smith committee, _n._ franks, rebecca, on british occupation of philadelphia, = =, . fraud, and obligation of contracts, = =, , , . frederick county, va., indian raids, = =, _n._ fredericksburg, va., as republican stronghold ( ), = =, . free ships, free goods, jay treaty and, = =, , ; and x. y. z. mission, - ; and neutral goods in enemy ships, = =, - . "freeholder," queries to m. ( ), m.'s reply, = =, - , - . freeman, constant, and burr conspiracy, = =, . french and indian war, raids, = =, , _n._; braddock's march and defeat, - ; effect of defeat on colonists, , , . french decrees on neutral trade, = =, , , , - . french revolution, influence of american revolution, = =, ; influence on united states, - , - ; universality of early american approval, , ; morris's unfavorable reports, - , ; first division of american opinion, , , ; burke's warning, - ; influence of paine's _rights of man_, - ; adams's publicola papers, - ; replies to them, , ; american enthusiasm and popular support, , , , - ; influence on politicians, ; influence of st. domingo rising, - ; conservative american opinion, , , ; jefferson on influence, , ; jefferson's support of excesses, - ; short's reports, _n._, _n._; popular reception of genêt, his conduct, , , ; humors of popular enthusiasm, - ; and hostility to titles, - ; american democratic clubs, - , , ; economic division of opinion, ; policy of american neutrality, - ; british depredations on neutral trade, question of war, - ; jay treaty, - ; support of republican party, _n._, ; monroe as minister, , ; henry's later view, . _see also_ directory. freneau, philip, on country editor, = =, _n._; on frontiersman, ; defends french revolution, = =, _n._; on lafayette, ; as jefferson's mouthpiece, ; attacks on washington, _n._; on jay treaty, . fries's insurrection, pardons, = =, - , = =, _n._; m. on, = =, ; trial, , - . frontier, advance after french and indian war, = =, ; qualities of frontiersmen, - , , - , = =, - ; conditions of life, = =, - , , _n._; and virginia foreign extradition act ( ), - . _see also_ west. frontier posts, retention and non-payment of british debts, = =, , , , = =, , ; surrender, . fulton, robert, steamboat experiments, livingston's interest, = =, - ; partnership and success, grant of new york monopoly, ; and steamboats on the mississippi, monopoly in louisiana, , . _see also_ gibbons _vs._ ogden. fulton street, new york, origin of name, = =, _n._ funding. _see_ public debt. fur-trade, and retention of frontier posts, = =, . gaillard, john, votes to acquit chase, = =, . gaines, edward p., and burr conspiracy, = =, , _n._ gallatin, albert, and m. in richmond ( ), = =, ; on murray and french negotiations, = =, _n._; and cession of western reserve, ; and jonathan robins case, , ; on jefferson-burr contest, ; on washington ( ), = =, ; commission on georgia's cession, _n._ gamble, john g., burr's security, = =, _n._ garnett, james m., grand juror on burr, = =, _n._ garnett, robert s., on nationalism and overthrow of slavery, = =, . gaston, william, and granville heirs case, = =, _n._ gates, horatio, conway cabal, = =, - . _gazette of the united states_, lack of public support, = =, ; on m.'s reception ( ), ; on republican success ( ), _n._ gazor, madame de, actress, = =, . general welfare, clause feared, = =, ; m. on protection ( ), ; and internal improvements, = =, . _see also_ implied powers. georgetown in , = =, . genêt, edmond c., popular and official reception, = =, , ; m.'s review of conduct, . georgia, ratification, = =, ; conditions ( ), = =, ; western claim and cession, , , , ; tax on bank of the united states, = =, ; and m'culloch _vs._ maryland, ; steamboat monopoly, . _see also_ cherokee indians; yazoo. georgia company, yazoo land purchase, = =, . _see also_ yazoo. georgia mississippi company, yazoo land purchase, = =, . _see also_ yazoo. germantown, pa., battle, = =, . germantown, va., on frontier, = =, . gerry, elbridge, on revolutionary action of framers, = =, ; and ratification, , ; on judiciary act of , = =, ; accident ( ), _n._; in federal convention, on declaring acts void, _n._; and on obligation of contracts, _n._ _see also_ x. y. z. mission. gettysburg address, m. and, = =, _n._ gibbons, thomas, and livingston steamboat monopoly, = =, - . _see also_ gibbons _vs._ ogden. gibbons _vs._ ogden, steamship monopoly in new york, = =, ; claim to monopoly in interstate voyages, opposition, retaliatory acts, , , ; early suits on monopoly, avoidance of federal constitution, ; kent's opinion on monopoly and power over interstate commerce, - ; concurrent or exclusive power, , , , - , - ; early history of final case, - ; importance and effect of decision, , , , , , ; counsel before supreme court, , , ; continuance, ; increase of state monopoly grants, , ; great development of steamboat transportation, , ; suit and internal improvements controversy, - ; and tariff controversy, ; political importance, ; specific question, ; origin of commerce clause in constitution, ; argument, - ; confusion in state regulation, ; m.'s earlier decision on subject, - ; m.'s opinion, - ; field of term commerce, navigation, , ; power oversteps state boundaries, ; supremacy of national coasting license over state regulations, - ; effect of strict construction, ; johnson's opinion, ; popularity of decision, ; later new york decision upholding, - . gibson, john b., and m., = =, . gilchrist _vs._ collector, = =, _n._ giles, william b., attack on hamilton, = =, _n._; on jay treaty and fairfax estate, ; accuses m. of hypocrisy, ; on washington, _n._; deserts congress ( ), _n._; and judiciary bill ( ), ; and assault on judiciary, repeal of act of , = =, , - , = =, , ; as house leader, = =, ; appearance, ; and m., _n._; accident ( ), _n._; on spoils, ; leader in senate, _n._, _n._; on right of impeachment, , ; attempt to win burr, ; and chase trial, ; vote on chase, , ; and bill to suspend habeas corpus ( ), ; and judiciary and burr trial, , , ; and grand jury on burr, , ; and attempted expulsion of senator smith, ; on yazoo claims, ; on federalists as anglicans, = =, ; and recharter of first bank of the united states, ; in virginia constitutional convention, ; conservatism there, , ; in debate on state judiciary, - , , ; reflects on jefferson, . gilmer, francis w., on m. as a lawyer, = =, , - ; character, _n._ gindrat, henry, and yazoo lands act, = =, , . goddard, calvin, in judiciary debate ( ), = =, _n._, . goode, samuel, and slavery, = =, . goodrich, chauncey, on federalist confusion ( ), = =, ; and new french negotiations, ; on dartmouth college case, = =, _n._, . goodrich, samuel g., on state of education (c. ), = =, . gordon, william f., and bill on supreme court, = =, , . gore, christopher, argument for ratification, = =, . gorham, nathaniel, on constitutionalist leaders in massachusetts, = =, _n._ government, general dislike after revolution, = =, , , , , ; effect of paine's _common sense_, . _see also_ anarchy; bill of rights; confederation; congress; continental congress; crime; demagogism; democracy; despotism; division of powers; federal constitution; judiciary; law and order; legislature; liberty; license; majority; marshall, john (_chief justice_); monarchy; nationalism; nobility; nullification; people; police powers; politics; president; religious tests; state rights; secession; separation of powers; treason; suffrage. governor, powers of territorial, = =, . _grace_, brig, = =, . graham, catharine m., on american and french revolutions, = =, _n._ graham, john, and burr conspiracy, = =, , , , _n._ grand jury, character of early federal charges, = =, _n._; in burr trial, - , , , . granger, gideon, and drinking, = =, _n._; and yazoo claims, randolph's denunciation, _n._, , , ; and connecticut reserve, ; and justiceship, = =, , . granville heirs case, = =, , , _n._, _n._ graves, james, case, = =, _n._ gravier, john, new orleans batture controversy, = =, . gray, william f., on m., = =, _n._ graydon, alexander, on ratification in pennsylvania, = =, _n._; on military titles, _n._; on reception of genêt, = =, . grayson, william, in the legislature, = =, ; on ratification in virginia, , _n._; characterized, ; in debate in ratification convention, - , , , , , , ; appeal to fear, _n._; on prospect of ratification, , ; on washington's influence on it, ; chosen senator, = =, ; on judiciary act of , = =, . great bridge, battle of, = =, - . great britain, anti-constitutionalist praise of government, = =, , , ; m.'s reply, ; depredations on neutral trade ( - ), = =, , ; retention of frontier posts, ; unpreparedness for war with, - ; courts war, - ; jay treaty, - ; american and french relations and x. y. z. mission, , , , , ; french negotiations ( ), ; french preparations to invade ( ), , ; and bowles in florida, ; disruption of commission on british debts, compromise, - ; and renewal of american negotiations with france, ; m.'s protest on depredations on neutral trade, - ; federalists as partisans, = =, - , , ; jefferson's hatred, , _n._, _n._ _see also_ american revolution; british debts; jay treaty; napoleonic wars; neutral trade; war of . green, john. _see_ green _vs._ biddle. green _vs._ biddle, = =, , , . greene, nathanael, on state of the army ( ), = =, ; intrigue against, ; as quartermaster-general, ; johnson's biography, = =, _n._ greene, mrs. nathanael, and eli whitney, = =, . gregg, andrew, and reply to president's address ( ), = =, . grenville, lord, and british debts, = =, . grey, sir charles, in philadelphia campaign, = =, . greybell, ----, evidence in burr trial, = =, . griffin, cyrus, ware _vs._ hylton, = =, ; and trial of burr, = =, ; jefferson's attempt to influence, ; question of successor, = =, , - ; career, _n._ grigsby, hugh b., on hardships of travel, = =, ; on prosperity of virginia, _n._; on importance of virginia in ratification, ; value of work on virginia ratification convention, _n._; on giles, = =, _n._ griswold, roger, judiciary bill ( ), = =, ; in judiciary debate ( ), = =, _n._, ; on bill on sessions of supreme court, ; on secession, ; and burr and secession, , . grundy, felix, and war of , = =, . gunn, james, on enlargement of federal judiciary, = =, ; on chief justiceship, ; and yazoo lands, = =, , , ; character, _n._; burned in effigy, . gurley, r. r., and m. and american colonization society, = =, . habeas corpus, attempt of congress to suspend privileges of writ ( ), = =, - . hague, the, m. on, = =, . "hail, columbia!" origin, historic importance, = =, . hale, benjamin, and dartmouth college case, = =, _n._ hale, joseph, on republican rule ( ), = =, ; on plans against judiciary, . hall, john e., and jefferson's attack on judiciary, = =, . hamilton, alexander, in philadelphia campaign, = =, ; army intrigue against, ; on revolutionary action of framers, _n._; and organization of constitutionalists, , ; on importance of ratification by virginia, ; compared with madison, _n._; financial aid to lee, _n._; and aid for fenno, = =, _n._; financial measures, ; deal on assumption and capital, , ; on virginia's protest on assumption, ; on constitutionality of bank, - ; and antagonism in cabinet, ; congressional inquiry, ; and whiskey insurrection, ; on constitutionality of neutrality proclamation, ; on mercantile support of jay treaty, , ; mobbed, ; defense of jay treaty, camillus letters, ; and henry's presidential candidacy ( ), _n._; and appointment to x. y. z. mission, ; on alien and sedition acts, ; on kentucky and virginia resolutions, ; control over adams's cabinet, - ; attack on adams, , _n._, - ; on new french treaty, ; and jefferson-burr contest, , ; statement in _federalist_ on judicial supremacy, = =, , ; adams on, and french war, _n._; m.'s biography of washington on, ; pursuit of burr, _n._, ; duel, _n._; and army in french war, _n._; and spanish america, _n._; opinion on yazoo lands, , ; and harper's opinion, _n._ hamilton, james, jr., on tariff of , = =, ; and of , ; and nullification, , . hammond, charles, counsel in osborn _vs._ bank, = =, . hampton, wade, and yazoo lands, = =, , _n._ hancock, john, and ratification, = =, , , ; madison on, _n._ handwriting, m.'s, = =, . hanson, a. c, on embargo and secession, = =, . harding, chester, portraits of m., on m., = =, , . harding, samuel b., on bribery in massachusetts ratification, = =, _n._ hare, charles w., on embargo, = =, _n._ harper, john l., osborn _vs._ bank, = =, , . harper, robert g., on french and jefferson ( ), = =, _n._; mob threat against, ; cites marbury _vs._ madison, = =, _n._; counsel for chase, ; argument, ; counsel for swartwout and bollmann, ; and yazoo lands, pamphlet and debate, , , , _n._; counsel in fletcher _vs._ peck, ; and story, = =, ; on pinkney, _n._; counsel in fairfax's devisee _vs._ hunter's lessee, ; counsel in osborn _vs._ bank, . harper, william, marbury _vs._ madison, = =, . harrison, benjamin, and british debts, = =, ; in the legislature, ; in ratification convention: and delay, ; characterized, ; in the debate, ; and amendments, . harrison, thomas, grand juror on burr, = =, _n._ harrison, william henry, wilkinson's letter introducing burr, = =, . hartford convention, = =, . harvard university, m.'s sons attend, = =, ; honorary degree to m., . harvey, ----, and jay treaty, = =, . harvie, emily, acknowledgment to, = =, _n._ harvie, jacquelin b., and callender trial, = =, ; m.'s son-in-law, _n._, = =, . harvie, mary (marshall), = =, _n._, = =, . haskell, anthony, trial, = =, , . hauteval, ----, as agent in x. y. z. mission, = =, . hay, george, attack on m. in jefferson-burr contest, = =, ; career, _n._; in callender trial, = =, , ; as witness in chase trial, ; and preliminary hearing on burr, , , , , ; and pardon for bollmann, , , , ; prosecutes burr, ; and m., , = =, ; and instruction of grand jury, = =, ; and new commitment for treason, - , - ; on incitation of public opinion at trial, _n._; and subpoena to jefferson, , , , , ; reports to jefferson, instructions from him, - , , - , , ; on m.'s statement of prosecution's expectation of conviction, , ; on jackson at trial, _n._; and confinement of burr, ; on m. and burr, , ; opening statement, ; on overt act, ; threat against m., , ; and further trials, , , , , ; on conduct of trial, ; fee, _n._; pamphlet on impressment, = =, . hayburn case, = =, . hayne, robert y., on tariff of , = =, ; webster debate, ; counter on jackson's nullification proclamation, , . haywood, john, on m., = =, . haywood, m. d., anecdote on m., = =, _n._ hazard, ----, and henry lee, = =, _n._ haze, samuel, and dartmouth college troubles, = =, . health, conditions in washington, = =, . heath, john, on jay treaty and fairfax grant, = =, ; as witness in chase trial, = =, , . heath, william, and ratification, = =, . henderson, archibald, in judiciary debate ( ), = =, . henderson, archibald, acknowledgments to, = =, _n._, _n._, _n._ henderson, richard h., on m., = =, _n._ henfield, gideon, trial, = =, , . henry, patrick, as statesman, = =, ; and robinson's loan-office bill, ; stamp-act resolutions, - ; resolutions for arming and defense, ; and conway cabal, ; in the legislature, , ; and council of state as a machine, ; and amendment of virginia constitution, ; and chancery bill ( ), ; and british debts, , _n._, , ; and confederate navigation act, ; and extradition bill ( ), ; plan for intermarriage of indians and whites, _n._; and calling of ratification convention, ; fear of the federal district, , _n._; on popular majority against ratification, ; feared by constitutionalists, ; in campaign for ratification delegates, ; in ratification convention: on revolutionary action of framers, , ; and nicholas, ; characterized, ; in the debate, , - , - , - , - , , , , , , , ; on consolidated government, , , , ; on power of the president, ; effect of speeches, , ; and philips case, _n._, ; on randolph's change of front, , ; defense of the confederation, , , ; on federal government as alien, , , , _n._; on free navigation of the mississippi, , , ; on obligation of contracts, ; on payment of paper money, ; on declaring acts void, ; on danger to the south, ; on standing army, ; and m., , ; on need of a bill of rights, ; on federal judiciary, , ; on indian lands, ; assault on, speculation, - , = =, _n._; in contest over recommendatory amendments, = =, - , ; threat to secede from convention, ; submits, , ; effect of french revolution on, = =, , ; and opposition after ratification, - , _n._; and federal convention, _n._; and assumption of state debts, ; on jefferson and madison, ; and offer of attorney-generalship, - ; federalist, _n._; and presidential candidacy ( ), - ; on abuse of washington, ; ware _vs._ hylton, ; champions m.'s candidacy for congress ( ), - ; on virginia resolutions, ; jefferson on support of m., , ; and chief justiceship, = =, _n._; in m.'s biography of washington, ; and yazoo lands, . herbert, george, on war of , = =, _n._ heyward, mrs. ----, m. and, = =, . higginson, stephen, on gerry, = =, . high seas, m. on jurisdiction over crimes on, = =, - ; as common possession, = =, . hill, aaron, and kentucky and virginia resolutions, = =, . hill, jeremiah, on ratification contest, = =, ; on importance of virginia in ratification, . hillard, george s., on m., = =, _n._ hillhouse, james, and burr, = =, ; and secession, , ; on adams's report on burr conspiracy, ; and embargo, = =, . hinson, ----, and burr, = =, . hitchcock, samuel, lyon trial, = =, _n._ hite _vs._ fairfax, = =, - . hobby, william j., pamphlet on yazoo lands, = =, _n._ hoffman, j. ogden, counsel in _nereid_ case, = =, . hollow, the, m.'s early home, = =, - . holmes, john, in ratification convention, = =, . holmes, john, counsel in dartmouth college case, = =, , . holmes _vs._ walton, = =, . holt, charles, trial, = =, . hooe, robert t., marbury _vs._ madison, = =, . hopkinson, joseph, "hail, columbia!" = =, ; counsel for chase, = =, ; argument, ; on embargo, = =, _n._; as practitioner before m., ; counsel in sturges _vs._ crowninshield, ; counsel in dartmouth college case, , , , ; and m., _n._; appointment as district judge, _n._; appearance, ; fee and portrait in dartmouth case, _n._; and success in case, ; counsel in m'culloch _vs._ maryland, . horatius articles, = =, _n._, _n._ horses, scarcity, = =, _n._ hortensius letter, = =, . hottenguer, ----, and m.'s purchase of fairfax estate, = =, ; as agent in x. y. z. mission, - , - , . house of burgesses, m.'s father as member, = =, ; control by tide-water aristocracy, ; robinson case, ; henry's stamp-act resolutions, sectional divergence, - . _see also_ legislature of virginia. houses, m.'s boyhood homes, = =, , ; of period of confederation, , . hovey, benjamin, indiana canal company, = =, _n._ howard, samuel, steamboat monopoly, = =, . howe, henry, on frontier illiteracy, = =, _n._ howe, sir william, pennsylvania campaign, = =, - . hudson river. _see_ gibbons _vs._ ogden. hulme, thomas, on frontiersmen, = =, _n._ humor, m.'s quality, = =, , = =, , , . humphries, david, on shays's rebellion, = =, . hunter, david. _see_ martin _vs._ hunter's lessee. hunter, william, counsel in sturges _vs._ crowninshield, = =, . hunter _vs._ fairfax's devisee, = =, - . _see also_ martin _vs._ hunter's lessee. huntingdon, countess of, on m. as orator, = =, . huntington, ebenezer, on republican ascendancy ( ), = =, . hutchinson, thomas, and declaring acts void, = =, . illinois, prohibits external banks, = =, ; and m'culloch _vs._ maryland, . illiteracy, at period of confederation, = =, ; later prevalence, = =, _n._ _see also_ education. immigration. _see_ new york _vs._ miln. immunity of foreign man-of-war, = =, - . impeachment, proposed amendment on, = =, ; as weapon against federalist judges, = =, ; monroe's suggestion for justices ( ), ; in debate on repeal of judiciary act, , , ; expected excuse in marbury _vs._ madison opinion, _n._, , ; as second phase of attack on judiciary, ; pickering case, , - ; state case of judge addison, , , ; and opinion in marbury _vs._ madison, , , ; m.'s fear, , - , , ; for political or indictable offense, , , , _n._, , - , , , - ; of all justices planned, , , , , ; marshall as particular object, - ; of chase voted, ; jefferson and attitude of northern republicans, , ; house manager, ; public opinion prepared for trial of chase, ; articles against chase, , ; despair of federalists, ; and yazoo frauds, ; arrangement of senate, , ; burr as presiding officer, , ; efforts of administration to placate burr, - ; seat for chase, ; his appearance, ; his counsel, ; randolph's opening speech, - ; testimony, - ; m. as witness, - ; conferences of giles and randolph, ; argument by manager early, ; by manager campbell, ; by hopkinson, - ; chase trial as precedent, ; argument by key, ; by lee, ; by martin, - ; by manager nicholson, - ; by manager rodney, - ; by manager randolph, ; randolph's praise of m., its political importance, - ; chase trial and secession, ; vote, acquittal, - ; importance of acquittal, ; programme abandoned, , ; m. and acquittal, ; threat against m. during burr trial, , , , , ; jefferson urges it, - ; foreign affairs prevent, . implied powers, in contest over assumption, = =, , ; in bank controversy, - ; m. upholds ( ), = =, ; interpretation of "necessary and proper laws," = =, , , - , , . _see also_ nationalism. import duties, unconstitutionality of state license on importers, = =, - . _see also_ tariff. impressment, by british, = =, , = =, ; m.'s protest, = =, ; and perpetual allegiance, = =, _n._; _chesapeake-leopard_ affair, - , = =, ; discussion of right, , ; m.'s later opinion, - . _see also_ neutral trade. imprisonment for debt, = =, _n._, _n._; m. on, and obligation of contracts, = =, , . independence, germ in henry's stamp-act resolutions, = =, ; anticipation of declaration, = =, ; m.'s biography of washington on declaration, . indian queen, boarding-house, = =, . indiana, prohibition on external banks, = =, ; and m'culloch _vs._ maryland, . indiana canal company, = =, _n._ indians, frontier raid, = =, , _n._; virginia's attempt to protect ( ), - ; henry's plan for intermarriage with whites, _n._, ; in ratification debate, ; fear of, and ratification, ; and british relations ( ), = =, , ; bowlee's intrigue, - ; and yazoo lands, = =, , , , ; m. and policy toward, = =, _n._ _see also_ cherokee indians. individualism, as frontier trait, = =, , ; rampant, . ingersoll, charles j., practitioner before m., = =, _n._ ingersoll, jared, hunter, _vs._ fairfax, = =, . ingraham, edward d., escort for m.'s body, = =, . inman, henry, portrait of m., = =, _n._ innes, harry, and burr, = =, . innes, james, as lawyer, = =, ; characterized, ; in ratification convention, ; and cabinet office, = =, ; ware _vs._ hylton, . insolvency. _see_ ogden _vs._ saunders; sturges _vs._ crowninshield. inspection laws, state, and commerce clause, = =, . _see also_ police powers. internal improvements, potomac river ( ), = =, ; burr's plan for ohio river canal, = =, _n._; m. and virginia survey, = =, - ; demand, ; bonus bill, madison's veto, ; later debate, randolph's speech on nationalism, - ; jackson's pocket veto of river and harbor bill, . international law, jonathan robins case, = =, - ; _amelia_ case and law of prize, = =, , ; _adventure_ case, ocean as common property, = =, ; m.'s contribution, ; _exchange_ case, immunity of foreign man-of-war, - ; united states _vs._ palmer, _divina pastora_, belligerency of revolted province, - ; _venus_ case, domicil and enemy character, , ; _nereid_ case, neutral property in enemy ship, , - ; recognition of slave trade, , . iredell, james, ware _vs._ hylton, = =, ; on virginia resolutions, ; on fries's insurrection, , = =, ; and common-law jurisdiction, ; and declaring acts void, ; and constructive treason, . iron hill engagement, = =, , . irving, washington, on trial of burr, = =, , , , , , _n._, _n._, , _n._ irwin, jared, and yazoo frauds, = =, . isham, mary, descendants, = =, . isham family, lineage, = =, . isolation, m. and policy, = =, , , = =, _n._; need in early federal history, = =, ; local, . _see also_ neutrality. iturrigaray, josé de, and wilkinson, = =, . jackson, andrew, and washington, = =, _n._; duelist, = =, _n._; and burr conspiracy, , , , , , ; prepares for war with spain, ; and rumors of disunion, ; at trial of burr, denounce jefferson and wilkinson, , , , ; appearance, ; burr's gratitude, ; battle of new orleans, = =, ; m. and candidacy ( ), - ; contrasted with m., ; m. on inauguration, ; appointments to supreme court, , , , , _n._; war on the bank, veto of recharter, - ; pocket veto of river and harbor bill, ; place in m.'s inclination to resign, , ; m. and election of , ; withdraws deposits from the bank, ; kent's opinion, _n._; and georgia-cherokee controversy, , , , , ; m. rebukes on cherokee question, ; union toast, ; warning to nullifiers, ; nullification proclamation, its debt to m., , ; m.'s commendation, ; reply of south carolina, his inconsistency with attitude on cherokee question, , ; recommends tariff reduction, ; virginia and attitude on nullification, ; character of southern support, . jackson, francis james, as minister, = =, - . jackson, james, on judiciary act of , = =, ; journey ( ), _n._; in debate on repeal of judiciary act, ; and chase trial, , ; and yazoo frauds, - , ; resigns from senate, . jackson _vs._ clarke, = =, _n._ james river company, = =, . jameson, j. franklin, acknowledgments to, = =, _n._, _n._ jarvis, charles, in ratification convention, = =, . jarvis, william c, attack on m., = =, . jay, john, on frontiersmen and indians, = =, , ; on demand for equality in all things, ; distrust of democracy, , ; on failure of requisitions, ; on decline of continental congress, _n._; on ability to pay public debt, , _n._; on extravagance, _n._; jay treaty, = =, - ; ware _vs._ hylton, ; refuses reappointment as chief justice, , = =, _n._; and common-law jurisdiction, , ; on defective federal judiciary, ; and declaring acts void, ; and manhattan company, _n._; and livingston steamboat monopoly, = =, . jay treaty, cause of negotiations, = =, - ; unpopularity of negotiation, ; humiliating terms, ; popular demonstrations against, - , ; commercial and financial support, , ; jefferson on, , ; question of constitutionality, , , - ; hamilton's defense, camillus letters, ; attitude of virginia, ; protests, ; typical address against, - ; m.'s defense, , _n._; and free ships, free goods, , - ; resolutions of virginia legislature, - ; indirect legislative censure of washington, - ; proposed constitutional amendments caused by, - ; contest in congress, petitions, , , ; richmond meeting and petition favoring, - ; m. and commissionship under, - ; france and, ; and x. y. z. mission, - ; submitted to french minister, ; and contraband, ; jonathan robins case under, - ; disruption of commission on british debts, - ; m. and disruption and compromise, - ; federal common-law trials for violating, = =, - ; divulged, _n._; settlement of british debts, ; and land grants, = =, , , jefferson, jane (randolph), = =, , . jefferson, peter, similarity to m.'s father, = =, ; ancestry, _n._ jefferson, thomas, _pre-presidential years_: relations with m., = =, , ; similarity in conditions of m.'s birth, _n._; randolph and isham ancestry, , ; jefferson ancestry, , ; landed estate, _n._; on virginia society, , ; as statesman, ; accused of shirking duty during revolution, - ; in service of state, ; as governor, ; and arnold's invasion, - ; and rebecca burwell, ; on william and mary, ; licenses m. to practice law, ; as letter writer, _n._; in legislature, ; use of council of state as a machine, ; chancery act ( ), ; on british debts, _n._, _n._, _n._; debts for slaves, _n._; cause of retained faith in democracy, ; on hardships of travel, ; use of cipher, _n._; on license of the press, ; on sectional characteristics, - ; inappreciative of conditions under confederation, , - ; on the cincinnati, ; defense of shays's rebellion, preparation to lead radicalism, - , = =, ; dislike of commerce, = =, ; on randolph and ratification, ; favors amendment before ratification, ; influence of french revolution on, = =, , ; on first movements of it, ; approbation of _rights of man_, , , _n._; on publicola papers, _n._; on st. domingo negro insurrection, ; on influence of french revolution on american government, , ; upholds excesses of french revolution, , ; on reception of genêt, ; development of republican party, , - , , ; political fortunes broken ( ), _n._; first attitude toward federal constitution, ; cold reception ( ), ; deal on assumption and capital, , , _n._; tardy views on unconstitutionality of assumption, ; opinion on bank of united states, ; converts madison, ; attempt to sidetrack m. ( ), - ; and antagonism in cabinet, ; on results of funding, ; and whiskey insurrection, , ; opposition to neutrality, ; resignation from cabinet, ; and drinking, _n._; attacks jay treaty, , ; accuses m. of hypocrisy ( ), , ; and abuse of washington, ; growth of feud with m., ; on m.'s reason for accepting french mission, ; and monroe's attack on washington, _n._; and appointment to x. y. z. mission, ; and gerry's appointment, ; experience in france contrasted with m.'s, ; and news of x. y. z. mission, ; and x. y. z. dispatches, , - ; and m.'s return and reception, , ; call on m., , ; and expected french war, ; open warfare on m., ; attempt to undo effect of x. y. z. mission, - , ; and langhorne letter, _n._; and alien and sedition acts, hysteria, method of attack, , , , ; kentucky resolutions, ; expects m.'s defeat ( ), ; and m.'s election, ; on henry's support of m., , ; on general election results ( ), ; and m.'s visit to kentucky, ; on renewal of french negotiations, ; on m. and disputed elections bill, ; and jonathan robins case, , ; blindness to m.'s merit, ; on burr and republican success ( ), _n._; m.'s opinion ( ), ; mazzei letter, _n._, _n._; and judiciary bill, , ; on chief justiceship ( ), _n._; on midnight appointments, _n._, ; inappreciative of importance of m.'s chief justiceship, ; in washington boarding-house, = =, ; on common-law jurisdiction of national judiciary, ; on lyon trial, ; on right of judges to declare acts void ( ), ; merits of declaration of independence, . _see also_ elections (_ _). _as president and after_: wines, = =, ; m. on, as terrorist, ; on federalist forebodings, ; on renewal of european war, ; policy of isolation, _n._; and bargain of election, ; m. on inaugural, ; programme of demolition, caution, - ; and popularity, _n._; plans against national judiciary, suppressed paragraph of message ( ), - , - , , , ; on judiciary as federalist stronghold, ; and repeal of judiciary act of , _n._; and subpoena in burr trial, , _n._, , - , , - , - ; and callender, , ; on giles, _n._; partisan rewards by, _n._, ; morris on, _n._; as following washington's footsteps, _n._; and settlement of british debt controversy, ; and adams's justices of the peace, ; desires to appoint roane chief justice, ; and opinion in marbury _vs._ madison, - , _n._, , ; branches of the bank and practical politics, ; and new orleans problem, , ; dilemma of louisiana purchase, - ; secretiveness, ; scents republican misgivings of assault on judiciary, ; and _aurora's_ condemnation of judiciary, _n._; head of impeachment programme, ; and impeachment of pickering, _n._, , ; and impeachment of chase, ; break with randolph, ; advances to burr during chase trial, , ; reward of pickering trial witnesses, ; reëlected, ; rodney's flattery, ; abandons impeachment programme, , ; plan to counteract m.'s biography of washington, , ; preparation of anas, ; m. on, in the biography, , , , _n._; on the biography, - ; on botta's history, ; hostility to burr, , ; and secession of new england, , = =, _n._, _n._; and war with spain, = =, , , , _n._; and miranda, , ; receives burr ( ), ; hostility of naval officers, , _n._, _n._; and eaton, ; eaton's report to, of burr's plans, ; and other reports, , , , , , _n._; wilkinson's revelation of burr's plans, , ; action on wilkinson's revelation, proclamation, , ; annual message on conspiracy, ; special message declaring burr guilty, - ; its effect, ; and swartwout and bollmann, , , , ; on arrest of burr, _n._; m.'s reflection on conduct in conspiracy, ; as prosecutor, prestige involved, on the trial, - , , , , , - , , , , , ; continued hostility to judiciary, , , = =, , , , - , ; on making stifled evidence at burr trial public, = =, , ; pardons to obtain evidence, , ; m.'s defiance at trial of burr, ; jackson's denunciation, , _n._; hay's reports on burr trial, ; on martin, , ; bolsters wilkinson, ; and _chesapeake-leopard_ affair, - , = =, ; orders further trials of burr, = =, , ; and daveiss's pamphlet, ; and attacks on m. during trial, , ; message on trial, hints at impeachment of m., - ; on georgia's western claim, ; and yazoo claims, ; prejudice-holding, = =, ; love of france, ; and attacks on neutral trade, _n._, , , ; hostility to england, , _n._, _n._; on federalist defense of british, ; toast on freedom of the seas, ; and hay's pamphlet on impressment, ; on m.'s control over supreme court, ; and m.'s integrity, _n._; enmity to story, - ; livingston case and madison's judicial appointments, - ; control of virginia politics, ; and martin _vs._ hunter's lessee, ; and first bank of the united states, ; and second bank, _n._; on _niles' register_, _n._; on financial madness ( ), ; on crisis of , ; on nathaniel niles, ; on charters and obligation of contracts, _n._; and taylor's exposition of state rights, ; m. on jefferson's later attacks, - ; advocates resistance by states, ; and amendment on judiciary ( ), , ; and demand for revision of virginia constitution, , , _n._, ; called theoretical by giles, ; m.'s attitude toward, , . jenkinson, isaac, account of burr episode, = =, _n._ jennings, william h., cohens _vs._ virginia, = =, . johnson, james, and second bank of the united states, = =, _n._, . johnson, reverdy, counsel in brown _vs._ maryland, = =, _n._ johnson, richard m., on missouri question, = =, ; proposed amendment and attack on judiciary, - , . johnson, william, opinion on common-law jurisdiction, = =, _n._; appointed justice, _n._, _n._; and mandamus, _n._; biography of greene, ; and release of swartwout and bollmann, ; opinion in fletcher _vs._ peck, ; character, = =, ; appearance, ; dissent in martin _vs._ hunter's lessee, , , ; and dartmouth college case, , , _n._; dissent in green _vs._ biddle, _n._; nationalist opinion in elkison case, , ; opinion in osborn _vs._ bank, ; opinion in gibbons _vs._ ogden, - ; opinion in ogden _vs._ saunders, _n._; dissent in craig _vs._ missouri, ; ill, ; and briscoe _vs._ bank and new york _vs._ miln, ; death, . johnson, william s., and judiciary act of , = =, . johnson, zachariah, in virginia ratification convention, = =, . johnson _vs._ bourn, = =, _n._ johnston, josiah s., on nullification, = =, . johnston, samuel, on hardships of travel, = =, . jonathan robins case, facts, = =, ; republican attacks, ; before congress, proof that nash was not american, ; basis of debate in house, , ; republican attempts at delay, - ; m.'s speech, - ; exclusive british jurisdiction, , ; not piracy, ; duty to deliver nash, ; not within federal judicial powers, - ; incidental judicial powers of executive, ; president as sole organ of external relations, ; comments on m.'s speech, its effect, - . jones, james, and slavery, = =, . jones, walter, counsel in fairfax's devisee _vs._ hunter's lessee, = =, ; counsel in m'culloch _vs._ maryland, , . joynes, thomas r., on m., = =, _n._ judge-made law, and federal assumption of common-law jurisdiction, = =, ; johnson on, = =, . _see also_ declaring acts void. judiciary, federal, arguments on, during ratification debate, = =, , , , , ; expected independence and fairness, , , ; and gradual consolidation, ; jury trial, , , , ; m. on, in convention, - ; inferior courts, ; extent of jurisdiction, , - , = =, - ; concurrent jurisdiction, = =, ; as a relief to state courts, ; proposed amendment on, ; british-debts cases, = =, ; suits against states, eleventh amendment, _n._, _n._, = =, , = =, , , - ; proposed amendment against pluralism, = =, ; incidental exercise of powers by executive, ; m. favors extension ( ), ; federalist plans to retain control, , ; republican plans against, = =, - ; as federalist stronghold, , ; federalist expectation of assault, ; assumption of common-law jurisdiction, - , , , = =, _n._; conduct of sedition trials, = =, - ; lectures from the bench, _n._; results on public opinion of conduct, , ; defects in act of , - , , ; effect of marbury _vs._ madison on republican attack, , , ; and campaign of , ; assault and federalist threats of secession, , ; republican misgivings on assault, ; _aurora_ on, _n._; removal on address of congress, , , ; political speeches from bench, , ; m. suggests legislative reversal of judicial decisions, , ; stabilizing function in a republic, ; necessity of independence, , , ; jefferson's continued hatred, , , = =, , - , - ; federalist attacks, _n._; effort for court of appeals above supreme court, , ; right of original jurisdiction, - ; proposed amendment for limited tenure, _n._; as interpreter of constitution, . _see also_ contracts; declaring acts void; impeachment; judiciary act of ; marshall, john (_chief justice_); supreme court. judiciary, state, equity, = =, - ; popular antagonism during confederation, - , = =, _n._; conduct of sedition trials, - ; conduct of republican judges, _n._; virginia, as political machine, = =, , - ; controversy over, in new hampshire, , ; m.'s report on, in virginia constitutional convention, ; tenure of judges and discontinued offices, , , - ; removal of judges, ; extent of reform demanded in virginia, ; debate in her convention, - . judiciary act of , bill, = =, ; character of first republican opposition to it, , , _n._; federalist toast, _n._; debate and passage of bill, - ; fairfax estate in debate, ; midnight appointments, - ; importance of repeal debate, = =, , ; jefferson and attack, last hour changes in message, - , ; character of act, , ; extravagance as excuse for repeal, , , ; repeal debate in senate, - ; tenure of judge and abolition of office, , , - ; and declaring acts void, , , , - , , , , , , ; independence _versus_ responsibility of judiciary, , , , , , ; fear of judiciary, ; marbury _vs._ madison in debate, _n._, , , , , ; select committee and discharge of it, , , ; indifference of mass of federalists, ; vote in senate, ; attempt to postpone in house, ; federalist threats of secession, , , , , , , ; debate in house, - ; and impeachment of justices, , , ; republican concern, _n._; republicans on origin of act, - ; supreme court and annulment of repeal, , , , - , , , = =, , ; predictions of effect of repeal, = =, ; federal common-law jurisdiction, , , ; vote in house, ; reception of repeal, - , - ; act on disability of judges, _n._ jury trial, reconstruction debate on federal, = =, , , , , ; juries in sedition cases, = =, . kamper _vs._ hawkins, = =, . keith, james, m.'s grandfather, career, = =, , . keith, james, on m., = =, _n._ keith, mary isham (randolph), m.'s grandmother, = =, , . keith, mary randolph, m.'s mother, = =, . _see also_ marshall, mary randolph (keith). kendall, amos, as jackson's adviser, = =, _n._ kent, james, on m.'s biography of washington, = =, ; on livingston _vs._ jefferson, = =, ; standing as judge, ; and dartmouth college case, , _n._; and supreme bench, _n._, _n._; on livingston's steamboat monopoly and interstate commerce, - , , ; on jackson, _n._; on m.'s decline, . kent, joseph, votes for war, = =, _n._ kent, moses, letters, = =, _n._ kenton, simon, birth and birthplace, = =, _n._ kentucky, delegates in ratification convention, influences on, = =, , , , , , - , , ; virginia act for statehood, = =, ; land case, = =, ; and repeal of judiciary act of , _n._; burr in, , , - ; bank mania and distress, = =, , , ; and m'culloch _vs._ maryland, , ; green _vs._ biddle, occupying claimant law, - , - . _see also_ next title. kentucky resolutions, purpose, = =, ; taylor's suggestion of nullification doctrine, ; production, ; importance, ; hamilton on, ; consideration in massachusetts, = =, ; dana on, ; as republican gospel, - ; resolutions in federalist states on, _n._, _n._ _see also_ state rights. kercheval, samuel, and jefferson's letter on virginia constitution, = =, , . key, francis s., counsel for swartwout and bollmann, = =, . key, philip b., counsel for chase, = =, ; argument, . king, rufus, on ratification in massachusetts, = =, , , _n._, ; and organization of constitutionalists, ; and henry's presidential candidacy ( ), = =, ; on m. as lawyer, ; and m. ( ), ; conciliatory letter to talleyrand ( ), , ; and x. y. z. mission, , , ; and presidential candidacy ( ), ; and british-debts dispute, - , = =, ; on fever in washington, ; in federal convention, on declaring acts void, _n._; and on obligation of contracts, _n._; on adams's burr conspiracy report, _n._; and yazoo lands, ; on bank mania and crisis of , = =, , _n._; and american colonization society, . knox, henry, army intrigue against, = =, ; on spirit of anarchy, ; on demand for division of property, ; on shays's rebellion, ; on henry as anti-constitutionalist, ; support of adams ( ), = =, ; enmity toward hamilton, _n._ knox, james, and burr conspiracy, = =, . kremer, george, attack on clay, = =, _n._ labor, attitude toward, in colonial virginia, = =, ; price (c. ), ; m. and problem, = =, . lafayette, marquis de, on washington at monmouth, = =, ; on french indifference to reforms ( ), = =, ; value of letters on french revolution, _n._; and key of the bastille, ; m. and imprisonment, - ; and american colonization society, = =, , _n._ lamb, john, on washington and federal constitution, = =, _n._ lamballe, madame de, executed, = =, _n._ land, m. on colonial grants, = =, - ; virginia grants and ratification, , - , ; indian purchases, , ; speculation, = =, ; m. on tenure in france ( ), - ; kentucky case, = =, ; importance in early national history, ; kentucky occupying claimant law, = =, - , - . _see also_ fairfax estate; public lands; yazoo. langbourne, william, burr's security, = =, _n._, . langdon, john, on ratification in new hampshire, = =, . langhorne letter to washington, = =, _n._ lanier, clem, and yazoo lands act, = =, , . lansing, john, decision on livingston steamboat monopoly, = =, . la rochefoucauld liancourt, duc de, on virginia social conditions, = =, _n._; on frontiersmen, _n._, _n._, _n._; on social contrasts, _n._; on drinking, ; on court days, _n._; on speculation and luxury in philadelphia, = =, _n._; on m. as a lawyer, ; on m.'s character, , . latrobe, b. h., and burr, = =, _n._ law and lawyers, virginia bar ( ), = =, ; extent of m.'s studies, - ; m.'s argument in hite _vs._ fairfax, colonial land grants, - ; m. as pleader, = =, - , - ; m.'s argument in ware _vs._ hylton, - ; practice and evidence, = =, ; popular hostility, _n._; m.'s popularity with, = =, ; character of practitioners before him, , , - ; oratory and woman auditors, , ; as publicists, ; fees, _n._ _see also_ judiciary. law and order, frontier license, = =, , , , ; m. on, = =, . _see also_ government. lear, tobias, on ratification in new hampshire, = =, , _n._; and eaton, = =, _n._ lecompte, joseph, and supreme court, = =, _n._ lee, arthur, and beaumarchais, = =, _n._ lee, gen. charles, on militia, = =, ; monmouth, - . lee, charles, of va., and jay treaty, = =, , ; and legislative implied censure of washington, ; and federal office for m., ; hunter _vs._ fairfax, , = =, ; on m. and new french negotiations, = =, ; _aurora_ on, ; counsel in marbury _vs._ madison, = =, , _n._; counsel for chase, ; counsel for swartwout and bollmann, ; counsel for burr, on overt act, ; report on yazoo lands, . lee, henry, randolph ancestry, = =, ; in charge of light infantry, ; pawles hook, ; in the legislature, ; in ratification convention: and haste, ; characterised, ; in the debate, , , , ; taunts henry, ; on prospects, ; hamilton's financial aid, _n._; on threat of forcible resistance, ; and whiskey insurrection, = =, ; and fairfax estate, , ; and enforcement of neutrality, , ; and jay treaty, ; and henry's presidential candidacy, ; candidacy ( ), ; and "first in war" description, - ; and powers of territorial governor, _n._; and slavery, ; and adams's advances to jefferson, _n._; and jefferson, = =, . lee, richard henry, lease to m.'s father, = =, ; in the legislature, , ; on distance as obstacle to federal government, ; on revolutionary action of framers, ; in campaign for ratification delegates, arguments, ; and title for president, = =, ; chosen senator, . lee, robert e., randolph ancestry, = =, . lee, s., on ratification contest, = =, . lee, thomas ludwell, lease to m.'s father, = =, . leggett, william, hostile criticism of m.'s career, = =, . legislature of virginia, m.'s elections to, = =, , , , , , , = =, , , ; aspect and character after the revolution, = =, - , - ; m.'s colleagues ( ), ; organisation ( ), ; m.'s committee appointments, , ; regulation of elections, ; commutable act, ; citizenship bill, ; relief bill for thomas paine, ; loyalists, ; insulted, ; avoids just debt, ; and amendment of state constitution, ; potomac river improvement, , ; chancery act, - ; religious freedom, , ; british debts, - ; and confederate impost, ; and continental debt, , ; and confederate navigation acts, , ; foreign extradition act, - ; calling of ratification convention, - ; hope of anti-constitutionalists in, , , ; and clinton's letter for second federal convention, ; attempt to undo ratification, = =, - , _n._; measures ( ), - ; ratifies first ten federal amendments, , ; on assumption of state debts, - ; and federal suits on british debts, ; and suits against states, ; hostility to bank of united states, ; and investigation of hamilton, ; resolutions on jay treaty, - ; virtual censure of washington, - ; federal constitutional amendments proposed by, - ; cold address to washington ( ), - ; and compromise on fairfax estate, ; m. foretells virginia resolutions, ; passage of the resolutions, ; madison's address of the majority, , ; m.'s address of the minority, - ; military measures, , ; proposed appropriation to defend callender, = =, _n._; olmstead case and nationalism, = =, _n._; censure of m'culloch _vs._ maryland and restrictions on missouri, - ; proposed amendment on federal judiciary, , ; and nullification, , - . _see also_ house of burgesses. leigh, benjamin watkins, practitioner before m., = =, _n._; in virginia constitutional convention, _n._; virginia commission to south carolina, ; tribute to m., ; and quoit club memorial to m., . leigh, nicholas, practitioner before m., = =, _n._ leipzig, battle of, = =, . _leopard-chesapeake_ affair, = =, - , = =, . letcher, robert p., attack on supreme court, = =, . lewis, b., sells house to m., = =, . lewis, morgan, and livingston steamboat monopoly, = =, _n._ lewis, william, in fries trial, = =, . lewis, william b., as jackson's adviser, = =, _n._ lewis, william d., on opinion in m'culloch _vs._ maryland, = =, _n._ _lex mercatoria_, as a vade mecum, = =, _n._ lexington, ky., and jay treaty, = =, . liberty, j. q. adams on genuine, = =, , . _see also_ government. libraries, in colonial virginia, = =, . license, unconstitutionally of state, of importers, = =, - . lincoln, abraham, resemblance to m., = =, , ; m.'s m'culloch _vs._ maryland opinion and gettysburg address, _n._; as expounding m.'s doctrines, ; and union and slavery, . lincoln, benjamin, and the militia, = =, ; on shays's rebellion and ratification, , _n._; and embargo, = =, . lincoln, levi, midnight-appointments myth, = =, , ; and marbury _vs._ madison, = =, ; commission on georgia cession, _n._; and justiceship, = =, , . lindsay _vs._ commissioners, = =, . linn, james, and election of jefferson, reward, = =, _n._ liston, robert, and bowles, = =, . literature, in colonial virginia, = =, , , ; m.'s taste and reading, , - , = =, , ; m.'s book-buying, = =, - , = =, ; weems's orders for books (c. ), = =, _n._, _n._ little _vs._ barreme, = =, _n._ livermore, samuel, on judiciary act of , = =, . livingston, brockholst, on fletcher _vs._ peck, = =, ; appearance, = =, ; and dartmouth college case, - , _n._, ; death, _n._ livingston, edward, and jonathan robins case, = =, , ; and wilkinson's reign of terror, = =, ; jefferson's hatred, _n._; batture litigation, jefferson case, = =, - ; later career, _n._; jackson's nullification proclamation, . livingston, john r. _see_ north river steamboat co. _vs._ livingston. livingston, robert r., and steamboat experiments, = =, , ; grants of steamboat monopoly in new york, ; and steamboats on the mississippi, monopoly in louisiana, , ; monopoly and interstate voyages, , ; suits, - . _see also_ gibbons _vs._ ogden. livingston, william, on militia, = =, ; on evils of paper money, . livingston _vs._ jefferson, = =, - . livingston _vs._ van ingen, = =, - . loan certificates. _see_ craig _vs._ missouri. localism, and isolation, = =, . _see also_ nationalism; state rights. logan, ----, on ratification in virginia, = =, . london, john, and granville heirs case, = =, _n._, _n._ longstreet, william, and yazoo lands act, = =, - . lord, john k., acknowledgment to, = =, _n._ lotteries, popularity, = =, _n._; for public funds, = =, _n._ _see also_ cohens _vs._ virginia. louis xvi and early french revolution, = =, _n._ louisiana, admission as reason for secession, = =, ; grant of steamship monopoly, , . louisiana purchase, retrocession to france, = =, ; jefferson and problem of new orleans, ; treaty, ; jefferson's dilemma, - ; attitude of federalists, - . louisville, first steamboat, = =, _n._ love, william, testimony in burr trial, = =, . lovejoy, king, and ratification, = =, . lovell, sarah (marshall), = =, . lowell, john, on adams's burr conspiracy report, = =, _n._; as british partisan, = =, ; opposition to war of , , ; on impressment, . lowdermilk, will h., on braddock's defeat, = =, _n._- _n._ lowndes, william, and war of , = =, ; on bank of the united states, . lowrie, walter, on missouri question, = =, . loyalists, virginia post-revolutionary legislation, = =, ; support ratification, _n._; attitude ( ), = =, ; federalists accused of favoring, = =, ; in m.'s biography of washington, . lucas, john c. b., and addison, = =, _n._ lucius letters, = =, _n._ luckett, john r. n., and adair, = =, . lumpkin, wilson, defies supreme court in cherokee question, = =, , , _n._ lusk, thomas, in ratification convention, = =, . lynch, charles, and burr, = =, . lynchburg, va., tribute to m., = =, . lyon, matthew, conviction for sedition, = =, , ; lottery to aid, ; jefferson's favor, _n._; and burr, . lyons, peter of virginia court of appeals, = =, . mcalister, matthew, and yazoo lands, = =, . mccaleb, walter f., on isolation of burr, = =, _n._; on burr-merry intrigue, _n._; on burr-casa yrujo intrigue, _n._, _n._; on morgans, _n._; study of burr conspiracy, _n._ m'castle, doctor, in burr conspiracy, = =, . maclay, samuel, on judiciary act of , = =, ; of smith committee, _n._ mccleary, michael, witness against pickering, reward, = =, _n._ mcclung, james, professor at william and mary, = =, _n._ mcclurg, james, richmond physician, = =, _n._ m'culloch, james w. _see_ m'culloch _vs._ maryland. m'culloch _vs._ maryland, importance and underlying conditions, = =, , , , ; agreed case, facts, , ; public interest, ; counsel, ; argument, - ; acquiescence in power to establish bank, , ; scope of implied powers, , , - , , ; m.'s opinion, - ; preparation of opinion, ; federal government established by the people, ; supremacy of national laws, ; sources of power to establish bank, ; federal freedom of choice of instruments, ; federal instruments exempt from state taxation, - ; and national taxation of state banks, , ; national powers paramount over state power of taxation, - ; attack on opinion in _niles' register_, - ; bank as monopoly, , , ; opinion as political issue, union of attack with slavery and secession questions, , , - , , ; opinion as opportunity for virginia attack on m., ; roane's attack, - ; m. and attacks, his reply, , , - ; attack on concurring republican justices, ; roane buys and m. sells bank stock, , ; demand for another court, , ; censure by virginia legislature, - ; denunciation by ohio legislature, - ; action by other states, - ; denial of power to erect bank, , , ; taylor's attack, - ; jefferson's comment, ; jackson denies authority of decision, - . mcdonald, anthony, as teaching hatter, = =, . mcdonald, joseph e., on m. as a lover, = =, _n._ mcduffie, george, and non-intercourse with tariff states, = =, . mcgrane, r. c., acknowledgment to, = =, _n._ mchenry, james, forced resignation, = =, ; on m. and state portfolio, ; on adams's temperament, _n._; on federalist dissensions, ; and sedition trial, = =, . m'ilvaine _vs._ coxe's lessee, = =, _n._ m'intosh, lachlan, and yazoo lands act, = =, . mckean, thomas, in ratification convention, = =, , ; and pardon of fries, = =, . mackie, ----, richmond physician, = =, _n._ m'lean, john, relief bill, = =, . mclean, justice john, appointment, = =, ; dissent in craig _vs._ missouri, ; and m., ; and briscoe _vs._ bank and new york _vs._ miln, , _n._ macon, nathaniel, and chase impeachment, = =, . macrae, alexander, prosecutes burr, = =, ; on subpoena to jefferson, ; on m.'s statement of prosecution's expectation of conviction, ; on overt act, ; in trial for misdemeanor, . madison, bishop james, as professor at william and mary, = =, . madison, james, as statesman, = =, ; in the legislature, ; on post-revolutionary legislature, , ; on amendment of constitutions, ; and british debts, , ; and payment of continental debt, , ; and extradition bill, , ; loses faith in democracy, , ; on state of trade ( ), ; use of cipher, _n._; on community isolation, ; on demand for division of property, ; on spirit of repudiation, , ; fear of paper money, _n._; on failure of requisitions, _n._; on economic basis of evils under confederation, , ; on need of uniform control of commerce, ; on need of negative on state acts, ; on opposition in pennsylvania to ratification, ; change of views, , , = =, , , ; on ratification contest in massachusetts, = =, ; on hancock, _n._; on massachusetts amendments, ; on contest in new hampshire, ; and randolph's attitude on ratification, , , ; on delegates to the virginia convention, ; in ratification convention: and detailed debate, ; and offer of conciliation, ; on prospects of convention, , , ; participation in debate deferred, ; characterized, ; in the debate in convention, , , , , , - , , , , ; compared with hamilton, _n._; on oswald at richmond, ; on opposition's policy of delay, ; on treaty-making power, ; and gradual consolidation, ; on judiciary, ; on judiciary debate, , ; in contest over recommendatory amendments, ; on personal influence in ratification, ; on publicola papers, = =, _n._, ; influence on, of popularity of french revolution, , ; on opposition after ratification, ; defeated for senate, , ; elected to the house, _n._; attacks m. ( ), , ; and m.'s integrity, ; and appointment to x. y. z. mission, , ; on x. y. z. dispatches, ; on alien act, ; virginia resolutions, ; address of the legislature, , ; and adams's cabinet, ; on washington's and adams's temperaments, _n._; on champagne, = =, _n._; and marbury _vs._ madison, , , ; on declaring acts void, _n._, _n._; and judiciary act of , ; and m.'s biography of washington, , ; and miranda, , ; and trial of burr, - ; and andrew jackson, ; and ogden-smith trial, _n._; and j. q. adams, _n._; on obligation of contracts, _n._, = =, ; commission on georgia cession, = =, _n._; inauguration, ; and fletcher _vs._ peck, ; and olmstead case, = =, ; erskine incident, ; and minister jackson, ; and napoleon's pretended revocation of decrees, , - , - ; war message, ; m. proposed as opponent for presidency ( ), - ; dismisses smith, ; and hay's pamphlet on impressment, ; jefferson and appointment of tyler as district judge, - ; and successor to justice cushing, - ; and first bank of the united states, ; and second bank, ; and attack on judiciary, , ; veto of bonus bill, ; randolph's arraignment, ; on commerce clause, _n._; and american colonization society, , _n._; in virginia constitutional convention, ; conservatism there, , ; and tenure of judges of abolished court, , ; on nullification, ; m. on it, ; later explanation of virginia resolves, . mail, conditions (c. ), = =, - ; secrecy violated, . maine, sir henry s., on dartmouth college case, = =, . maine, and nullification, = =, . majority, decrease in faith of rule by, = =, , ; rights, = =, ; m. on rule, . _see also_ democracy; government. malaria, in washington, = =, . mandamus jurisdiction of supreme court in judiciary act of , m.'s opinion of unconstitutionality, = =, , , , ; general acceptance of jurisdiction, - . manhattan company, burr and charter, = =, _n._ manufactures, m. on conditions in france ( ), = =, , ; effect of war of , = =, . marbury, william, marbury _vs._ madison, = =, . marbury _vs._ madison, underlying question, = =, , , , - , , , , , ; references to, in judiciary debate ( ), _n._, , , , ; expected granting of mandamus, _n._, _n._, ; arguments anticipated, m.'s knowledge of earlier statements, , - , - ; facts of case, , ; as vehicle for assertion of constitutional authority of judiciary, dilemma and its solution, , - ; dangers in m.'s course, - ; m.'s personal interest, , ; practical unimportance of case, ; hearing, , ; m.'s opinion, - ; right to commission, - ; mandamus as remedy, ; unconstitutionality of court's mandamus jurisdiction, - ; declaring acts void, - ; opinion and assault on judiciary, , , ; jefferson and opinion, , , , , , = =, ; little notice of decision, = =, - ; first citation, _n._ marietta, ohio, and burr conspiracy, = =, , . marine corps, debate in congress ( ), = =, - . markham, elizabeth, = =, , . markham, lewis, = =, . marriage, henry's plan for intermarriage of whites and indians, = =, _n._, . marryat, frederick, on newspaper abuse, = =, _n._; on localism, . marsh, charles, and dartmouth college case, = =, , . marshall, abraham, m.'s uncle, = =, . marshall, alexander, m.'s brother, birth, = =, _n._ marshall, ann, mrs. smith, = =, . marshall, charles, m.'s brother, birth, = =, _n._ marshall, charlotte, m.'s sister, birth, = =, _n._ marshall, edward c, m.'s son, birth, = =, _n._; education, . marshall, elizabeth (markham), m.'s grandmother, = =, , ; bequest in husband's will, , . marshall, elizabeth, m.'s sister, birth, = =, _n._ marshall, elizabeth, acknowledgment to, = =, _n._ marshall, hester (morris), = =, . marshall, humphrey, as delegate to ratification convention, = =, ; on popular fear of constitution, _n._; votes for ratification, _n._; and jay treaty, = =, ; and burr conspiracy, = =, , ; on embargo and secession, = =, . marshall, jacquelin a., m.'s son, birth, = =, _n._, = =, _n._; education, . marshall, james k., m.'s son, birth, = =, , = =, _n._; education, ; m.'s home with, . marshall, james m., m.'s brother, birth, = =, _n._; m. helps, ; and imprisonment of lafayette, = =, ; and fairfax estate, , - ; and m.'s business affairs, _n._; marriage to morris's daughter, ; and m. in europe, _n._; staff office in french war, ; federal appointment as nepotism, _n._; witness in marbury _vs._ madison, = =, . _see also_ martin _vs._ hunter's lessee. marshall, jane, m.'s sister, birth, = =, _n._; m. and love affair, = =, , ; marriage, _n._ marshall, john, m.'s grandfather, career, = =, , ; will, ; deed from william marshall, , . marshall, john, m.'s uncle, = =, . marshall, john, _early years and private life_: birth, = =, ; randolph and isham ancestry, ; similarity in conditions of jefferson's birth, _n._; marshall ancestry, real and traditional, - ; keith ancestry, ; boyhood homes and migrations, - , ; boyhood life, - ; education, , , ; and his father, ; reading, pope's poems, - ; training in order, ; influence of lord fairfax on training, _n._; influence of james thompson, ; reads blackstone, ; to be a lawyer, ; military training, ; training from father's service as burgess, , ; drilling master for other youths, ; patriotic speeches ( ), ; at battle of great bridge, , ; lieutenant in the line, , ; on militia during the revolution, , ; military promotions, , ; spirit as army officer, ; in brandywine campaign, - ; in the retreat, ; in battle of germantown, ; cheerful influence at valley forge, - , ; deputy judge advocate, ; judicial training in army, ; in monmouth campaign, , ; on lee at monmouth, ; stony point, , ; pawles hook, ; inaction, awaiting a command, , ; and arnold's invasion, ; meeting with future wife, courting, relations with ambler family, - , - , ; at william and mary, extent of law studies, , , , , - ; in phi beta kappa, ; in debating society, ; licensed to practice law, ; resigns commission, ; walks to philadelphia to be inoculated, ; marriage, , ; financial circumstances at time of marriage, - ; slaves, , ; social effect of marriage, ; first richmond home, ; lack of legal equipment, , ; early account books, - , - , ; early fees and practice, , , , , , ; children, , , = =, _n._, , = =, - ; and gallatin ( ), = =, ; buys military certificates, ; fauquier land from father, ; as a mason, , = =, ; city recorder, = =, ; later richmond home and neighbors, , = =, ; first prominent case, hite _vs._ fairfax, = =, - ; employed by washington, ; buys fauquier land, ; robert morris's lawyer, _n._; list of cases, - ; and james river company, = =, ; profits from legal practice, - , ; and new enterprises, ; method as pleader, - , - ; extent of legal knowledge, ; neglect of precedents, ; statement of cases, , ; character of cases, ; in ware _vs._ hylton, on british debts, - ; and robert morris, investments, , ; fairfax estate, - , , , = =, , , = =, - , _n._, , ; financial reasons for accepting x. y. z. mission, = =, - ; biography of washington (_see_ biography); as beaumarchais's attorney, ; interest in stability of contracts, = =, ; life in washington, = =, , ; illness, operation for stone, , - , ; will, _n._; later residence, ; decline, , ; death, ; escort of body to richmond, ; funeral, ; inscription on tomb, . _virginia legislature, ratification, and later state affairs_: elections to legislature, = =, , , , , , , = =, , , ; character as legislator, = =, ; committee appointments and routine work, , , , , = =, - , ; first votes, = =, ; on character of legislature, - ; elected to council of state, ; election resented, forced out, , , ; political importance of membership in council, _n._, ; and revolutionary veterans, ; and relief for thomas paine, ; and loyalists, ; on amendment of constitution, ; and potomac company, ; and chancery bill ( ), - ; indifference to religious freedom question, , ; and british debts, , - ; and continental debt and navigation acts, , ; and extradition bill, ; and intermarriage of whites and indians, _n._, ; and calling of ratification convention, , , ; on shays's rebellion, , , _n._, ; practical influences on stand for ratification, , ; on opposition to ratification, ; candidacy for ratification convention, ; importance in the convention, ; in the convention: study, ; on philips attainder case, _n._, ; social influence in convention, ; in the debate, - , - , - ; on necessity of well-ordered government, - ; on navigation of the mississippi, ; on necessity of delegated powers, , ; on federal taxation, - , ; on amendments, , ; on control of militia and preparedness, - ; on concurrent powers, ; and henry, , ; on federal judiciary, - ; on independence of judiciary, , ; on declaring acts void, , , = =, ; on suits against states, = =, ; on discretion in congress, ; on other jurisdiction, ; on jury trial, , ; of committee on amendments, ; on opposition after ratification, = =, _n._; survey and report on virginia internal improvements, = =, - ; and bank of virginia incident, ; election to constitutional convention, ; attitude on issues there, , , , , , ; standing there, ; in debate on judiciary, - ; and on suffrage, ; anticipates split of virginia, . _federal affairs_: relationship with jefferson, = =, ; on early approbation of french revolution, = =, ; on st. domingo negro insurrection, , ; on popular enthusiasm for french revolution, , ; on conservative american opinion, ; and imprisonment of lafayette, - ; and democratic societies, ; on origin of state rights contest, ; and madison's candidacy for senate, ; declines federal appointments, ; and first amendments, ; and attack on assumption, , ; continued popularity, ; jefferson's attempt to sidetrack him ( ), - ; refuses to stand for congress ( ), ; on opposition to federal excise, ; and whiskey insurrection, , ; brigadier-general of militia, ; on assault on neutrality proclamation, , , ; support of policy of neutrality, - , , , , , - ; first republican attacks on, - ; and post at new orleans ( ), ; attacks on character, - , , ; military enforcement of neutrality, - ; on british depredations on neutral trade ( ), ; on retention of frontier posts, ; leader of virginia federalists, ; refuses cabinet offers, , , ; advises on cabinet appointments, - , ; defense of jay treaty, , _n._; and jay treaty resolutions of legislature, - ; on treaty-making power ( ), - ; and legislature's indirect censure of washington, , ; jefferson's accusation of hypocrisy ( ), , ; and proposed amendments, ; declines french mission ( ), - ; and richmond meeting on jay treaty, - ; sounds henry on presidential candidacy ( ), - ; and virginia address to washington ( ), - ; growth of the jefferson feud, ; and federalist leaders ( ), ; declines jay treaty commissionship, - ; x. y. z. mission [_see_ this title]; on john adams ( ), ; adams on, ; on the hague, ; on th fructidor, , - ; on conditions in holland ( ), - ; on conditions at antwerp, , ; on french economic conditions, - ; on treaty of campo formio, ; on french military and financial conditions, - ; on liberty and excess of press, ; refuses associate justiceship, , , ; beginning of jefferson's open warfare, ; washington persuades him to run for congress ( ), - ; republican attacks on candidacy, m. on attacks, , , , , , ; on expediency of alien and sedition acts, , , , = =, ; answers to queries on principles, = =, - , - ; federalists on views on alien and sedition acts, - , ; on motives of virginia republicans, , ; address of minority of virginia legislature, - ; on rule of the majority, ; on preparedness, , - , ; attack on virginia resolutions, ; on constitutionality of alien and sedition acts, ; electioneering, ; defeat expected, ; effect of henry's support, - ; at the polls, - ; elected, ; washington's congratulations, ; apology to washington for statements of supporters, , ; federalists on election, their misgivings, - ; jefferson on election, ; and officers for army ( ), ; visit to father in kentucky, jefferson's fear of political mission, , ; and french hostility as federalist asset, ; approves reopening of french negotiations, , , ; importance to federalists in congress, , , ; of committee to notify president, ; reply of house to adams's address, - ; on question of reducing army ( ), , , - ; on campaign plots and issues, - ; addresses on death of washington, - ; and phrase "first in war," - ; use of term "american nation," ; activity in congress, ; and cession of western reserve, ; and powers of territorial governor, ; and army officers' insult of randolph, ; and marine corps bill, debate with randolph, - ; and land grants for veterans, ; attitude towards slavery ( ), , ; votes to repeal sedition act, ; political independence, , ; kills disputed elections bill, - ; and delay in jonathan robins case, , ; importance and oratory of speech on case, , ; arguments in speech, - ; on jurisdiction on high seas, - ; on basis of piracy, ; on limitation to jurisdiction of federal courts, - ; on incidental judicial powers of executive, ; on president as sole organ in external relations, ; comments and effect of speech, - ; jefferson's blindness to merit, ; and bankruptcy bill, , ; refuses war portfolio, ; appointment as secretary of state, , , ; republican comment on appointment, , ; federalist comment, ; as secretary, incidents of service, , , ; and office-seekers, ; and pardon of williams, ; and continued depredations on neutral trade, ; and _sandwich_ incident, ; and bowles's activity in florida, - ; and barbary powers, ; and disruption of british-debts commission and proposed compromise, - ; instructions to king on british depredations, - ; on unwarranted increase of contraband list, - ; on paper blockade, ; on unfairness of british admiralty courts, , ; on impressment, ; and breaking-up of federalist party, , , ; loses control of district, ; and prospects of new french negotiations, , ; and french treaty, ; writes adams's address to congress, , ; on need of navy, ; and extension of federal judiciary, , ; and _washington federalist_, _n._, , _n._; neutrality in jefferson-burr contest, - ; personal interest in it, , ; effect of his neutrality, ; opinion of jefferson ( ), ; and threatened deadlock, - ; fairfax estate and judiciary bill ( ), ; continues as secretary of state, ; and judgeship for wolcott, , ; and midnight appointments, myth concerning, , , ; and accusation of nepotism, _n._; in defeat of party, = =, ; and republican success, ; on jefferson's inaugural, ; and callender trial, ; on trials for violating neutrality proclamation, ; on settlement of british debts controversy, ; on political conditions ( ), ; opposition to war of and hatred of france, = =, - , , - , , , , ; opposition to embargo, , ; on jackson incident and federalist defeat ( ), , ; proposed for president ( ), - , , ; and richmond vigilance committee, _n._; refrains from voting, , ; incident of election of , - ; on house election of adams, _n._; on jackson's inauguration, ; and american colonization society, - ; and jackson's war on the bank, , , ; on virginia and jackson's veto of harbor bill, ; and election of , ; and indian policy, _n._ _chief justice_: appointment, = =, ; adams on qualifications, : reception of appointment, - ; acceptance, , ; jefferson and appointment, , = =, ; general inappreciation of appointment, = =, ; change in delivery of opinions, = =, ; _amelia case_, law of prize, , ; wilson _vs._ mason, kentucky land case, ; united states _vs._ peggy, treaty as supreme law, ; turner _vs._ fendall, practice and evidence, ; influence of alien and sedition acts on career, ; and assault on the judiciary ( ), , ; judiciary act of and acceptance of chief justiceship, ; and giles, _n._; giles's sneer at and bayard's reply, ; and annulment of repeal of judiciary act, , , , _n._, - , , , = =, , ; on circuit, = =, - , = =, - ; preparation for assertion of constitutional authority of judiciary, , ; marbury _vs._ madison [_see_ this title]; american insurance co. _vs._ canter, annexation and territorial government, = =, , = =, , ; removal by impeachment planned, his fear of it, = =, , - , - , , ; united states _vs._ fisher, implied powers, ; importance of chase trial to, - , , , , , ; suggests legislative reversal of judicial opinions, , ; randolph's tribute to, in chase trial, its political importance, , - ; as witness in trial, - ; early opinions, ; and rumors on burr conspiracy, ; and habeas corpus for swartwout and bollmann, ; opinion on their discharge, effect of misunderstanding of statement on presence at overt act, - , _n._, , , , , - ; rebukes of jefferson's conduct, , ; warrant for burr's arrest, ; preliminary hearing and opinion, , - ; conduct and position during burr trial, , , , , , _n._, , , , , , , , ; jefferson's criticism of preliminary hearing, - ; at dinner with burr, - ; on difficulty of fair trial, ; and counsel at trial, ; and selection of grand jury , , ; instructions to grand jury, - , , ; and new motion to commit for treason, , , , , , , ; and subpoena to jefferson, , - , , - ; admonition to counsel, ; opinion on overt act, , - , - ; on prosecution's expectation of conviction, - ; and pardon for bollmann, , ; and attachment against wilkinson, , ; and confinement of burr, , ; and selection of petit jury, , ; seeks advice of associates, ; on preliminary proof of overt act, - ; and threat of impeachment, , , , , ; on testimony not on specified overt act, , ; and irregular verdict, ; denies further trial for treason, ; and bail after treason verdict, ; and commitment for trial in ohio, , , , _n._; burr's anger at, , ; and daveiss's pamphlet, ; attacks on for trial, , - , ; on trial and baltimore tumult, ; jefferson urges impeachment, - ; baltimore mob burns him in effigy, - ; j. q. adams's report on burr trial, , ; later relations with adams, _n._; foreign affairs prevent efforts to impeach, ; importance of fletcher _vs._ peck opinion, , , ; knowledge of granger's memorial on yazoo claims, _n._; and of congressional debate on it, ; administers oath to madison, ; hearings and opinion in fletcher _vs._ peck, yazoo claims and obligation of contract, - ; congressional denunciation of opinion, - ; rebukes resistance of national authority by state, opinion in olmstead case, = =, - ; checks reaction against nationalism, ; period of creative labor, ; influence over associates, causes, - , ; conduct on the bench, ; life and consultation of justices, - ; character of control over supreme court, , ; popularity with the bar, ; encourages argument, _n._, ; story as supplementing, , , , ; story's devotion, , ; livingston _vs._ jefferson, jefferson's manipulation of colleague, - ; nationalism and upholding of doubtful acts of congress, suppression of personal feelings, , ; _adventure_ case, interpretation of embargo, ; _obiter dicta_, , ; and international law, ; _exchange_ case, immunity of foreign man-of-war, - ; united states _vs._ palmer, _divina pastora_, international status of revolted province, belligerency, - ; dissent in _venus_ case, domicil during war and enemy character, , ; _nereid_ case, neutral property in enemy ship, - ; and martin _vs._ hunter's lessee, , - , _n._, - , , , ; granville heirs case, , ; private letter on hunter decision, _n._, _n._; decisions of as remedies for national ills, , , , , ; sturges _vs._ crowninshield, state insolvency laws and obligation of contracts, - ; new jersey _vs._ wilson, exemption from taxation and obligation of contracts, - ; and dartmouth college case, , , , _n._, , , ; opinion in case, charters and obligation of contracts, - ; consequences of opinion, - ; importance and aim of m'culloch _vs._ maryland opinion, , ; on pinkney, ; tribute to argument of case, ; opinion in case, - ; debt of webster and lincoln to, _n._, , ; attacks on opinion, - , - , - ; and change in reputation of supreme court, ; on attacks reply to them, , , , - ; sells bank stock, ; importance and purpose of cohens _vs._ virginia, ; opinion in case, - ; on attacks on opinion, - ; jefferson's attack ( ), - ; taylor's attack on nationalist doctrine, ; as center of strife over political theories, ; on johnson's elkison opinion, ; opinion in osborn _vs._ bank, - ; satisfying disposition of cases, , ; importance and effect of gibbons _vs._ ogden, , , , , , ; opinion in brig wilson _vs._ united states, navigation, , ; opinion in gibbons _vs._ ogden, control over commerce, - ; tribute to kent, , ; reception of opinion, ; change in congressional attitude toward, , ; opinion in brown _vs._ maryland, foreign commerce, - ; warning to nullifiers, ; survival of opinions, ; character of last decade, , , , ; _antelope_ case, slave trade and international law, , ; boyce _vs._ anderson, common carriers and transportation of slaves, ; dissent in ogden _vs._ saunders, insolvency laws and future contracts, ; opinion in craig _vs._ missouri, state bills of credit, ; on supreme court and threats of disunion, , ; anticipates reaction in supreme court, , , , ; on proposed repeal of appellate jurisdiction, ; question of resignation, - ; and homage of philadelphia bar, ; jackson's denial of authority of opinions, - ; and georgia-cherokee contest, ; opinion in cherokee nation _vs._ georgia, indians not foreign nation, - ; rebukes jackson's attitude toward contest, ; opinion in worcester _vs._ georgia, control over indians, - ; mandate ignored, ; opinions and jackson's nullification proclamation, , ; on story's article on statesmen, ; and briscoe _vs._ bank and new york _vs._ miln, , _n._, _n._; in last term, ; last opinion, . _characteristics, opinions and their development_: idea of union in early training, = =, ; motto, ; filial and brotherly affection and care, , , = =, , ; influence of early environment, = =, , , ; poetry and novels, , = =, , ; appearance at nineteen, = =, ; at twenty-six, ; in middle age, = =, - ; fighter, = =, ; humor, , = =, , , , , = =, , , , ; athletic ability, = =, , , ; nickname, , ; first lessons on need of organization, ; influence of army experience, , , , , - , , ; sociability, generosity, conviviality, , , , , = =, , , = =, , ; as reader, = =, ; book-buying, - , = =, ; negligent dress, = =, , = =, ; gossip, = =, , ; as letter-writer, negligent of correspondence, _n._, = =, _n._; and drinking, = =, , = =, _n._, _n._, = =, ; sympathy, = =, ; and wife's invalidism, , = =, - ; reverence for woman, = =, , = =, , ; handwriting, = =, ; early self-confidence, ; influence of service in legislature, , , , , ; growth of nationalism, , , , - , , , = =, , , = =, , ; loses faith in democracy, = =, , , , , = =, , , = =, , , , - , , ; characterized at ratification convention, = =, , ; as speaker, _n._, , = =, , ; argument by questions, = =, _n._; influence of ratification, ; influence of french revolution, = =, , , - , , , , ; preparation for nationalistic leadership, ; integrity, , , = =, ; effect on, of abuse of washington, = =, ; appreciation of own powers, ; and french language, _n._, ; trust, ; diversions, - , = =, , - ; la rochefoucauld's analysis of character, = =, , ; ambitiousness, ; indolence, , ; domesticity, , , , , , , - , - , = =, , ; love of theater, = =, , ; influence of experiences in france, - , = =, , , , ; peacefulness, = =, ; sedgwick on character, , ; and popularity, ; good nature, , ; charm, , , , = =, , ; independence, = =, ; fearlessness, ; unappreciated masterfulness, ; and policy of isolation, = =, _n._; light-heartedness, ; and honors, , = =, ; appearance in maturity, = =, ; and burr contrasted, , ; on right of secession, ; impressiveness, ; prejudice-holding, = =, ; denies right of expatriation, - ; not learned, ; simplicity of daily life, - ; marketing, ; deliberateness, ; fondness for children, ; interest in agriculture, ; habits of thought and writing, , , , , ; abstraction, , ; religion, - ; life at fairfax estate, ; kindness, ; conscientiousness, ; lack of personal enemies, ; dislike of washington formal society, - ; as conversationalist, ; portraits, _n._, _n._; dislike of publicity, ; character in general, ; resemblance to lincoln, , ; and imprisonment for debt, , ; roane's tribute, ; and criticism, ; humanness, ; contrasted with jackson, ; on uplift and labor problem, ; and slavery, - ; and death of wife, tribute to her memory, - ; country's esteem, , _n._; story on green old age, ; on attitude toward jefferson, , ; and story's commentaries and dedication to himself, , , , ; on nullification, - , , - , , ; despondent over state of country, - ; tributes at death, - ; hostile criticism, ; story's verses on, , . marshall, john, m.'s son, m. on, as baby, = =, ; birth, _n._, = =, _n._; education, . marshall, john, new england skipper, = =, . marshall, judith, m.'s sister, birth, = =, _n._ marshall, louis, m.'s brother, birth, = =, _n._ marshall, lucy, m.'s sister, birth, = =, _n._; marriage, _n._; m. helps, . marshall, martha, m.'s putative great-grandmother, = =, . marshall, mary, m.'s aunt, = =, . marshall, mary, m.'s sister, birth, = =, _n._ marshall, mary, m.'s daughter, mrs. jacquelin b. harvie, = =, _n._, = =, ; birth, _n._ marshall, mary randolph (keith), m.'s mother, ancestry and parents, = =, , - ; education and character, , ; children, , , _n._, _n._ marshall, mary w. (ambler), courtship, = =, - , , , ; marriage to m., , ; children, , , = =, _n._, , = =, _n._; religion, = =, _n._, = =, ; items in m.'s account book, = =, ; invalid, m.'s devotion, , = =, _n._, = =, - ; independent means, _n._; death, m.'s tribute, - . marshall, nancy, m.'s sister, birth, = =, _n._ marshall, peggy, m.'s aunt, = =, . marshall, sarah, mrs. lovell, = =, . marshall, susan, m.'s sister, birth, = =, _n._ marshall, thomas, m.'s putative great grandfather, = =, ; will, , . marshall, thomas, father of m., and washington, = =, , ; and braddock's expedition, ; similarity to jefferson's father, ; birth, ; character, ; children, , , _n._, _n._; as a frontiersman, ; settlement in fauquier county, , ; migration to "the hollow," - ; appearance, ; slaves, _n._; education, ; and m., ; influence of lord fairfax, , ; offices, , _n._, _n._; leases land, ; vestryman, ; acquires oak hill, ; in house of burgesses, , , ; in virginia convention ( ), , ; prepares for war, ; major of minute-men, ; at battle of great bridge, , ; enters continental service, ; in crossing of the delaware, ; promotions, ; in brandywine campaign, ; colonel of state artillery, _n._, _n._; source on military services, _n._, ; not at surrender of charleston, _n._; property, ; financial stress, moves to kentucky, - ; gives m. land, ; and m.'s election to legislature, ; and m.'s election to council of state, _n._; and british debts, , ; in virginia legislature from kentucky, ; bequest from father, ; on kentucky and national government ( ), = =, _n._; resignation as supervisor of revenue, on trials of office, _n._, _n._; m.'s visit to ( ), , . marshall, thomas, m.'s brother, birth, = =, _n._; in revolutionary army, _n._ marshall, thomas, m.'s son, birth, = =, _n._, = =, _n._; education, ; home, ; killed, . marshall, william, putative great uncle of m., = =, , , ; deed to m.'s grandfather, , . marshall, william, m.'s uncle, = =, . marshall, william, m.'s brother, birth, = =, _n._; and chase impeachment, = =, , , . marshals, united states, plan to remove federalist, = =, ; conduct in sedition trials, . martin, luther, and callender trial, = =, ; in federal convention, on declaring acts void, _n._; counsel for chase, ; career and character, _n._, _n._, _n._; argument, - ; counsel for swartwout and bollmann, ; counsel for burr, , ; security for burr, _n._; on subpoena to jefferson, , , , ; jefferson's threat to arrest, ; on pardon for bollmann, - ; and confining of burr, ; public hostility, _n._; on preliminary proof of overt act, ; intemperance, _n._, _n._; on overt act, - ; on the verdict, ; and baltimore mob, - ; burr's friendship, _n._; counsel in fletcher _vs._ peck, , ; as practitioner before m., = =, ; and dartmouth college case, _n._; counsel in m'culloch _vs._ maryland, , . martin, philip, sale of fairfax estate, = =, _n._, = =, , _n._ _see also_ martin _vs._ hunter's lessee. martin _vs._ hunter's lessee, early case, = =, - ; importance, = =, , , ; m.'s connection with decision, , , , ; interest of m.'s brother in case, , , _n._, ; virginia's political organization, ; hunter's grant, fairfax's state case against it, ; marshall syndicate compromise on fairfax lands, ; compromise and hunter's claim, , _n._, , , ; decision for hunter in state court, , ; hunter's social position, _n._; appeal to supreme court involving treaties, ; federal statute covering appeal, _n._; m. and similar north carolina case, , ; story's opinion, treaty protects fairfax rights, ; johnson's dissent, ; virginia court denies right of supreme court to hear appeal, - ; second appeal to supreme court, ; story's opinion on right of appeal, - ; m.'s private letter on appellate power, _n._, _n._; johnson's dissent on control over state courts, , . martineau, harriet, on m.'s attitude toward women, = =, . maryland, and kentucky and virginia resolutions, = =, _n._; tax on bank of the united states, = =, . _see also_ brown _vs._ maryland; m'culloch _vs._ maryland. mason, george, as statesman, = =, ; in the legislature, ; on character of post-revolutionary legislature, _n._; and amendment of virginia constitution ( ), ; and chancery bill ( ), ; on loose morals, ; and british debts, _n._, _n._, ; and confederate navigation acts, ; and calling of ratification convention, ; in ratification convention: characterized, ; motion for detailed debate, ; and delay, ; on consolidated government, ; on conciliation, ; in the debate, - , , - , , , ; appeal to class hatred, , _n._, ; denounces randolph, ; fear of the federal district, , ; on payment of public debt, , ; on judiciary, - ; on suppression of clinton's letter, ; and m., = =, ; in federal convention, on declaring acts void, = =, _n._; and on obligation of contracts, _n._ mason, jeremiah, as practitioner before m., = =, ; counsel in dartmouth college case, , , , ; fee and portrait, _n._; bank controversy, . mason, jonathan, on x. y. z. dispatches, = =, , ; in debate on repeal of judiciary act, = =, . mason, stevens t., divulges jay treaty, = =, , = =, _n._; on virginia and jay treaty, = =, _n._; appearance, = =, ; in debate on repeal of the judiciary act, - . masonry, m.'s interest, = =, , = =, ; first hall at richmond, = =, . massac, fort, burr at, = =, . massachusetts, drinking in colonial, = =, _n._; shays's rebellion, - ; policy of constitutionalists, ; character of opposition to ratification, , , - ; strength and standpoint of opposition, ; influence of hancock, ; recommendatory amendments and ratification, , ; soothing the opposition, - ; question of bribery, _n._, _n._; and kentucky and virginia resolutions, = =, , _n._; and embargo, = =, , , ; and war of , _n._; and m'culloch _vs._ maryland, ; steamboat monopoly, ; constitutional convention ( ), . massachusetts historical society, makes m. a corresponding member, = =, . massie, thomas, buys land from m.'s father, = =, . mattauer divorce case in virginia, = =, _n._ matthews, george, journey ( ), = =, _n._; and yazoo lands bill, - . matthews, thomas, and chancery bill ( ), = =, ; presides in ratification convention, . maxwell, william, brandywine campaign, = =, . mayo, john, defeat and duel, = =, . mazzei letter, = =, _n._, _n._ mead, cowles, and burr conspiracy, = =, , . meade, william, on drinking, = =, ; on irreligion, _n._; on m.'s daily life, = =, , _n._, . mellen, prentice, on bankruptcy frauds, = =, . mercer, charles f., on m., = =, _n._ mercer, john, grand juror on burr, = =, _n._ mercer, john francis, in federal convention, on declaring acts void, = =, _n._ meredith, jonathan, counsel in brown _vs._ maryland, = =, . merlin de douai, philippe a., election to directory, = =, . merry, anthony, intrigue with federalist secessionists, = =, ; and burr, - , . mexican association, = =, . mexico. _see_ burr conspiracy. midnight appointments, = =, - ; ousted, = =, . milan decree, = =, . military certificates, m. purchases, = =, . military titles, passion for, = =, _n._, _n._ militia, in the revolution, = =, - , ; debate in ratification convention on efficiency, , _n._; on control, - ; uniform in virginia ( ), = =, _n._; m. on unreliability, . milledge, john, on yazoo lands, = =, _n._ miller, james, and yazoo lands, = =, _n._ miller, stephen d., and nullification, = =, . "millions for defense," origin of slogan, = =, . minor, stephen, spanish agent, and burr conspiracy, = =, , _n._ mirabeau, comte de, on the cincinnati, = =, . miranda, francisco de, plans, knowledge of administration, = =, , , , ; and burr conspiracy, , ; ogden-smith trial, _n._ mississippi river, free navigation in virginia debate on ratification, = =, , , , , - ; first steamboat = =, , _n._, _n._; steamboat monopoly, , . mississippi territory, powers of governor, = =, ; burr, = =, - . missouri. _see_ next title, and craig _vs._ missouri. missouri compromise, virginia resolutions against restriction, = =, - ; struggle and secession, - . mitchel _vs._ united states, m.'s last opinion, = =, . mitchell, samuel l., votes to acquit chase, = =, , . monarchy, fear, = =, _n._, , , , = =, . _see also_ government. money, varieties in circulation ( ), = =, _n._; debased, ; scarcity (c. ), = =, _n._ _see also_ finances; paper money. monmouth campaign, = =, - . monopoly, bank of the united states as, = =, , , , , . monroe, james, stirling's aide, = =, ; and selling of land rights, ; and realizing on warrants, , ; and chancery bill ( ), ; and british debts, _n._, ; use of cipher, _n._; in debate in ratification convention, , , ; candidacy for house ( ), = =, _n._; on service in legislature, _n._; on m.'s support of policy of neutrality, ; and m.'s integrity, ; as minister to france, , , ; attack on washington, ; and movement to impeach justices, = =, ; and j. q. adams, _n._; and m., = =, ; report on st. cloud decree, ; m.'s review of it, , ; and hay's pamphlet on impressment, ; and martin _vs._ hunter's lessee, ; and second bank of the united states, _n._; and internal improvements, _n._; in virginia constitutional convention, ; conservatism there, . montgomery, john, and chase, = =, ; as witness in chase trial, _n._ moore, albert, resigns justiceship, = =, _n._ moore, john b., on m. and international law, = =, , _n._ moore, richard c., at m.'s funeral, = =, . moore, thomas, on washington, = =, . moore, william, on election of ratification delegates, = =, . moravians, during american revolution, = =, _n._, . morgan, charles s., in virginia constitutional convention, = =, _n._ morgan, george, and burr conspiracy, = =, , , . morgan, james, votes for war, = =, _n._ morrill, david l., resolution against dueling, = =, _n._ morris, gouverneur, and ratification in virginia, = =, , ; on american and french revolutions, = =, _n._; unfavorable reports of french revolution, - , _n._, ; recall from french mission, ; in debate on repeal of judiciary act, = =, , , , , , ; mason's sarcasm, ; on reporting debates, _n._; on jefferson's pruriency, _n._; in federal convention, on declaring acts void, _n._; and on obligation of contracts, _n._; and judiciary act of , ; on napoleon, = =, . morris, hester, marries j. m. marshall, = =, . morris, robert, as financial boss, = =, ; as a peculator, ; and ratification in virginia, , _n._; and m., _n._; and cabinet position, = =, ; and m.'s purchase of fairfax estate, , , , , ; and m.'s investments, , ; land speculation, , _n._; connection with m.'s family, ; and judiciary act of , = =, ; and yazoo lands, . morris, thomas, in judiciary debate ( ), = =, _n._ morse, jedediah, on secession, = =, . morton, perez, and yazoo claims, = =, _n._ motto, m.'s, = =, . mumkins, betsy, m.'s domestic, = =, . murch, rachel, and dartmouth college troubles, = =, . murdock, t. j., on story and dartmouth college case, = =, _n._ murphey, archibald d., on m.'s biography of washington, = =, . murray, william vans, on gerry in x. y. z. mission, = =, _n._, ; on memorial of x. y. z. envoys, ; on m.'s views on alien and sedition acts, , ; on m.'s election ( ), ; and reopening of french negotiations, ; on repeal of judiciary act, = =, . murrell, john, and burr conspiracy, = =, . mutual assurance society of virginia, m. and origin, = =, . napoleon i., and th fructidor, = =, , ; treaty of campo formio, ; and talleyrand, ; reception in paris ( ), , ; and american negotiations, ; and burr, = =, _n._; morris on, = =, ; decrees on neutral trade, ; and embargo act, _n._; pretended revocation of decrees, , - , - ; battle of leipzig, ; and fulton's steamboat experiments, . napoleonic wars, peace and resumption, = =, ; and american politics, = =, - . _see also_ neutral trade. nash, thomas. _see_ jonathan robins case. nashville, burr at, = =, , , . nason, samuel, and ratification, = =, , . natchez, first steamboat, = =, _n._ _natchez press_, on m'culloch _vs._ maryland, = =, _n._ _national gazette_, as jefferson's organ, = =, . _see also_ freneau. national government, m. on start, = =, . nationalism, growth of m.'s idea, = =, , , , , - , , , = =, ; lack of popular conception under confederation, = =, , ; washington's spirit during confederation, ; fear of consolidation, , , , - , , , = =, ; fear of gradual consolidation, = =, ; lesson of ratification contest, ; influence of french revolution on views, = =, - ; m. on origin of contest, ; made responsible for all discontents, - ; m.'s use of "nation," ; centralization as issue ( ), ; union with reaction, = =, ; importance of m.'s chief justiceship to, ; m. on, as factor under confederation, - ; m. on washington's, _n._; influence of fletcher _vs._ peck, , ; as m.'s purpose in life, = =, , ; assertion in embargo controversy, , ; olmstead case, m.'s opinion, - ; moves westward, ; m. on internal improvements and, ; m. as check to reaction against, ; and m.'s upholding of doubtful acts of congress, - ; of story, ; in m'culloch _vs._ maryland, ; forces (c. ), ; original jurisdiction of national courts, ; randolph's denunciation in internal improvements contest, - ; importance of gibbons _vs._ ogden, ; and tariff and overthrow of slavery, ; m.'s opinions and webster's reply to hayne, - ; m. anticipates reaction in supreme court, , . _see also_ declaring acts void; division of powers; federalist party; government; implied powers; kentucky resolutions; marshall, john (_chief justice_); nullification; secession; state rights; virginia resolutions. naturalization, madison on uniform regulation, = =, . _see also_ impressment. navigation, power over, under commerce clause, = =, , , . navigation acts, proposed power for confederation, = =, , . _see also_ commerce. navy, m. on need ( ), = =, ; french war, = =, ; m.'s support ( ), ; reduction, = =, _n._; in war of , = =, ; immunity in foreign ports, - . naylor, william, on virginia county courts, = =, . necessary and proper powers. _see_ implied powers. negro seamen law of south carolina, johnson's opinion, = =, , . nelson, william, jr., decision in hunter _vs._ fairfax, = =, _n._ nereid case, neutral goods in enemy ship, = =, - . netherlands, m. on political conditions ( ), = =, - . neufchatel, françois de, election to directory, = =, . neutral trade, british seizures in - , = =, ; question of war over, - ; french depredations, , , , , , , , , , , ; french rôle d'équipage, _n._; free ships, free goods, - ; spanish depredations, ; british depredations after jay treaty, ; tench coxe on them, _n._; m.'s protest on contraband, - ; on paper blockade, ; on unfair judicial proceedings, , ; on impressment, ; moderation of french depredations, ; and new french treaty, _n._; renewal of british and french violations, = =, - , ; non-importation act ( ), ; partisan attitude, - ; embargo, ; its effect, opposition, - ; m.'s opinion, ; non-intercourse, ; erskine incident, ; jackson incident, - ; napoleon's pretended revocation of decrees, , - , - ; m.'s interpretation of jefferson's acts, , ; _nereid_ case, neutral property in enemy ship, - . _see also_ jay treaty; neutrality. neutrality, as washington's great conception, = =, ; proclamation, ; unpopularity, ; opposition of jefferson and republicans, , ; mercantile support, _n._, ; constitutionality of proclamation, ; m.'s support, - , - , , , , , - ; m.'s military enforcement, - ; as issue in virginia, ; j. q. adams on necessity, _n._; federal common-law trials for violating, = =, - ; m.'s biography of washington on policy, . _see also_ isolation; neutral trade. new england, hardships of travel, = =, ; type of pioneers (c. ), ; and excise on distilleries, = =, _n._; and secession, = =, ; escapes crisis of , = =, . _see also_ states by name. new england mississippi company, yazoo claims, = =, - , - . _see also_ fletcher _vs._ peck. new hampshire, ratification contest, = =, , , ; and disestablishment, = =, , _n._; denounces congressional salary advance ( ), _n._; judiciary controversy, , ; steamboat monopoly, ; branch bank controversy, ; and nullification, . _see also_ dartmouth college _vs._ woodward. new jersey, hardships of travel, = =, ; and state tariff laws, ; ratification, ; and livingston steamboat monopoly, = =, , . _see also_ next title. new jersey _vs._ wilson, exemption of land from taxation and obligation of contracts, = =, - . new orleans, reception of burr, = =, , ; wilkinson's reign of terror, - ; battle, = =, ; first steamboat, _n._ new york, hardships of travel, = =, ; jefferson on social characteristics, ; and kentucky and virginia resolutions, = =, _n._, ; bank investigation ( ), = =, ; and m'culloch _vs._ maryland, . _see also_ gibbons _vs._ ogden; sturges _vs._ crowninshield. new york city, jacobin enthusiasm, = =, . _see also_ new york _vs._ miln. _new york evening post_, on m.'s biography of washington, = =, ; on adams's report on burr conspiracy, ; on gibbons _vs._ ogden, = =, ; hostile criticism on m., . new york _vs._ miln, facts, state regulation of immigration, = =, ; division of supreme court on, , ; decision, proper police regulation, _n._; story voices m.'s dissent, _n._ newspapers, character at period of confederation, = =, - ; virulence, = =, , = =, _n._; development of influence, = =, ; and first bank of the united states, = =, . _see also_ press. nicholas, george, in the legislature, = =, ; citizen bill, ; and chancery bill ( ), ; and calling of ratification convention, ; on popular ignorance of draft constitution, ; in ratification convention: characterized, ; in debate, , , , , , , ; assault on henry, ; in contest over recommendatory amendments, . nicholas, john, deserts congress ( ), = =, _n._; on the crisis ( ), ; in jonathan robins case, ; and reduction of army, ; and judiciary bill, . nicholas, wilson c., and m., = =, ; sells land to morris, _n._; and kentucky resolutions, , _n._; and pickering impeachment, = =, ; and burr conspiracy, ; and grand jury on burr, - , . nicholson, joseph h., in judiciary debate ( ), = =, ; on bill on sessions of supreme court, ; and chase impeachment, ; argument in chase trial, - ; and acquittal of chase, ; releases alexander, ; on jefferson's popularity, . nickname, m.'s, = =, , . nightingale, john c., and yazoo lands, = =, _n._ niles, hezekiah, on banking chaos after war of , = =, _n._, , , _n._, , , ; on bankruptcy frauds, ; on sturges _vs._ crowninshield, ; and dartmouth college case, _n._; value of his _register_, ; attack on m'culloch _vs._ maryland opinion, - ; on elkison case, , _n._; and gibbons _vs._ ogden, ; on virginia and nullification, , ; tribute to m., . niles, nathaniel, and burr, = =, _n._; and dartmouth college troubles, = =, ; jefferson on, . _niles' register_, value, = =, . _see also_ niles, hezekiah. nimmo, james, cohens _vs._ virginia, = =, . nobility, fear from order of the cincinnati, = =, . _see also_ government. non-importation act ( ), = =, ; m. and constitutionality, . _see also_ neutral trade. non-intercourse, act of , = =, ; erskine incident, ; m. and constitutionality, ; south carolina's proposed, with tariff states, , . _see also_ neutral trade. norbonne, philip, practitioner before m., = =, _n._ norfolk, va., dunmore's burning, = =, ; tribute to m., = =, . north carolina, hardships of travel, = =, ; and state tariff acts, ; granville heirs case, = =, , ; tax on bank of the united states, . north river steamboat co. _vs._ livingston, = =, - . norton, george f., and british debts, = =, . norton, j. k. n., m.'s books possessed by, = =, _n._; acknowledgment to, = =, _n._ nullification, first hints, = =, ; m.'s rebukes, , , ; movement, ; m. on movement, , ; madison on, ; jackson's union toast, ; and warning, ; m. on doctrine and progress, , , ; and tariff of , , ; convention and ordinance, , ; popular excitement, ; jackson's proclamation, its debt to m.'s opinions, , ; m. on it, ; south carolina and the proclamation, jackson's inconsistencies, , ; military preparations, ; jackson's recommendation of reduction of tariff, ; virginia and mediation, m. on it, - ; m. on webster's speech against, ; suspension of ordinance, ; compromise tariff, ; m. on virtual victory for, , ; m.'s resulting despondency on state of the country, - . _see also_ state rights. oak hill, acquired by m.'s father, = =, ; as home for m.'s son, = =, . oakley, thomas j., counsel in gibbons _vs._ ogden, = =, , , . _obiter dicta_, m.'s use, = =, , . obligation of contracts. _see_ contracts. occom, samson, visit to england, = =, . office. _see_ civil service. ogden, aaron, and livingston steamboat monopoly, = =, - . _see also_ gibbons _vs._ ogden. ogden, david b., counsel in sturges _vs._ crowninshield, = =, ; practitioner before m., _n._; fees, _n._; counsel in cohens _vs._ virginia, , . ogden, george m. _see_ ogden _vs._ saunders. ogden, peter v., and burr conspiracy, arrested, = =, , . ogden, samuel g., trial, = =, _n._ ogden _vs._ saunders, obligation of future contracts not impaired by insolvency laws, = =, ; m.'s dissent, . ohio, cession of western reserve, = =, ; tax on bank of the united states, = =, , ; legislative denunciation of m'culloch _vs._ maryland, - ; and new york steamboat monopoly, _n._ _see also_ osborn _vs._ bank. ohio river, burr and plan for canal, = =, _n._; first steamboat, = =, _n._; development of steam transportation, . old field schools, = =, . olmstead case, state defiance of federal mandate, = =, - . opinions, m.'s rule on delivering, = =, . orange county, va., minute men, = =, . oratory, court, and woman auditors, = =, , . orders in council on neutral trade, = =, , . _see also_ neutral trade. orr, thomas, osborn _vs._ bank, = =, , . orr _vs._ hodgson, = =, _n._ osborn, ralph. _see_ osborn _vs._ bank. osborn _vs._ bank of the united states, facts, = =, - ; compromise proposed by ohio, ; defiance of ohio, ; argument, ; m.'s opinion, - ; original jurisdiction of national courts, - ; and eleventh amendment, protection of federal agents from state agents, - ; tax on business of bank void, , ; courts and execution of law, ; general satisfaction of parties on the record, ; johnson's opinion, ; resulting attack on supreme court, - ; jackson denies authority, - . osmun, benijah, and burr, = =, , . oswald, eleazer, and _centinel_ letters, = =, _n._, ; and ratification in virginia, , , . otis, harrison gray, and slavery ( ), = =, ; on washington streets ( ), = =, ; on traveling conditions, _n._; on speculation, _n._; and story, = =, ; and bankruptcy laws, . otsego, n.y., conditions of travel ( ), = =, . paine, robert treat, on x. y. z. mission, = =, . paine, thomas, on militia, = =, ; relief bill, ; on government as an evil, ; popularity of _common sense_, _n._; on american and french revolutions, = =, _n._; and key of the bastille, ; _rights of man_, influence in united states, - ; jefferson's approbation, , , _n._; j. q. adams's reply, - ; disapproves of excesses, _n._, ; on the king and early revolution, _n._; on republican party and france, ; and x. y. z. mission, . palmer, william p., anecdote on m., = =, _n._ paper money, depreciation and confusion during revolution and confederation, = =, , , - ; counterfeiting, , = =, ; post-bellum demand, = =, , ; continental, in debate on ratification, , , ; and impairment of obligation of contracts, = =, , _n._, = =, ; flood and character of state bank bills, - , , , , ; popular demand for more, , ; local issues, ; depreciation, ; endless chain of redemption with other paper, ; reforms by second bank of the united states, - . _see also_ briscoe _vs._ bank; craig _vs._ missouri money. paris, in , = =, . parker, richard e., verdict in burr trial, = =, . parsons, theophilus, ratification amendments, = =, . parton, james, on administration's knowledge of burr's plans, = =, _n._; on jefferson and trial of burr, _n._; biography of burr, _n._ partridge, george, accident, = =, _n._ "party," as term of political reproach, = =, _n._ paterson, william, and chief justiceship, = =, ; charge to grand jury, = =, _n._; sedition trials, , ; and declaring acts void, , , ; and judiciary act of, , ; ogden-smith trial, _n._ paulding, james k., on m., = =, . pawles hook, lee's surprise, = =, . peace of , and land titles, = =, , , . _see also_ british debts; frontier posts; slaves. pearsall _vs._ great northern railway, = =, _n._ peck, jedediah, trial, = =, _n._ peck, john. _see_ fletcher _vs._ peck. peele, w. j., on m., = =, _n._ pegram, edward, grand juror on burr, = =, _n._ pendleton, edmund, as judge, = =, ; on m.'s election to council of state, ; candidacy for ratification convention, ; in the convention: president, ; and impeachment of authority of framers, ; characterized, ; on failure of confederation, ; in debate, , , ; on judiciary, . pendleton, nathaniel, and yazoo lands, = =, , . pennsylvania, during the revolution, = =, ; hardships of travel, , ; jefferson on social characteristics, ; tariff, _n._, _n._; calling of ratification convention, ; election of delegates, - ; precipitancy in ratification convention, - ; address of minority, , , ; continued opposition after ratification, - ; and kentucky and virginia resolutions, = =, _n._; olmstead case, = =, - ; legislative censure of m'culloch _vs._ maryland, . pennsylvania, university of, honorary degree to m., = =, . people, character of masses under confederation, = =, , ; community isolation, , = =, ; responsible for failure of confederation, = =, ; basis of federal government, = =, , . _see also_ democracy; government; nationalism. perkins, cyrus, and dartmouth college case, = =, _n._ perkins, nicholas, and burr conspiracy, = =, - , . peters, richard [ ], and common-law jurisdiction, = =, , _n._; sedition trial, ; impeachment contemplated, _n._; on united states and napoleonic war, = =, _n._; olmstead case, - ; death, _n._ peters, richard [ ], escort for m.'s body, = =, . phi beta kappa, m. as member, = =, ; jacobin opposition, = =, . philadelphia, march of continental army through ( ), = =, ; capture by british, - ; during british occupation, - ; jacobin enthusiasm, = =, ; luxury, _n._; and m.'s return from x. y. z. mission, - ; tributes to m. as chief justice, = =, , . philadelphia _aurora_. _see_ _aurora_. philadelphia _federal gazette_, on publicola papers, = =, . philadelphia _gazette of the united states_. _see_ _gazette_. philadelphia _general advertiser_, on french revolution, = =, _n._; on neutrality proclamation, _n._ philadelphia _independent gazette_, and ratification, = =, . _sec also_ oswald. philadelphia _national gazette_. _see_ _national gazette_. philips, josiah, attainder case, = =, , , . phillips, isaac n., on treason, = =, _n._ physick, philip s., operates on m., = =, ; and m.'s final illness, . pichegru, charles, and th fructidor, = =, , , _n._ pickering, john, impeachment, = =, , , - ; witnesses against, rewarded, . pickering, timothy, on hardships of travel, = =, _n._; on jefferson and madison, = =, ; and gerry at paris, , ; on m.'s views on alien and sedition acts, ; on m.'s election ( ), ; on m. in jonathan robins case, ; dismissed by adams, , ; _aurora's_ attack, _n._, _n._; on m. as his successor, ; on m. and jefferson-burr contest, ; and secession, = =, , , , , = =, _n._, , ; on giles, = =, _n._; on impeachment programme, ; on pickering impeachment, _n._; on chase impeachment, ; at trial of chase, _n._; on m.'s biography of washington, ; on adams's burr conspiracy report, _n._; as british partisan, = =, _n._; on embargo, , ; and m., , ; on election of , ; and story, ; and story and dartmouth college case, _n._; on massachusetts constitutional convention ( ), ; on slavery, . pickett, george, bank stock, = =, . pinckney, charles, on campaign virulence ( ), = =, ; reward for election services, = =, _n._; in federal convention, on declaring acts void, _n._ pinckney, charles c., appointment to french mission, = =, , , ; not received, ; at the hague, ; accused of assisting royalist conspiracy, _n._; and "millions for defense" slogan, ; toast to, _n._; candidacy ( ), ; hamiltonian intrigue for, , _n._, _n._; and chief justiceship, . _see also_ elections ( ); x. y. z. mission. pinckney, thomas, on gerry, = =, . pindall, james, on bank of the united states, = =, . pinkney, william, canning's letter, = =, ; as practitioner before m., ; counsel in _nereid_ case, , ; character, - ; influence of woman auditors on oratory, , , _n._; conkling's resemblance, _n._; m. on, , ; story on _nereid_ argument, _n._; counsel in dartmouth college case, - , ; counsel in m'culloch _vs._ maryland, ; argument, ; fees, _n._; argument in cohens _vs._ virginia, ; counsel in gibbons _vs._ ogden, ; death, . pinto, manuel, _nereid_ case, = =, . piracy, m. on basis, = =, . pitt, william, and burr, = =, . pittsburgh, first steamboat, = =, _n._ platt, jonas, opinion in gibbons _vs._ ogden, = =, . pleasants, james, grand juror on burr, = =, _n._ plumer, william, on washington ( ), = =, ; on drinking there, ; on jefferson and popularity, _n._; on bayard, _n._; on randolph, _n._; on repeal of judiciary act, ; on louisiana purchase, _n._, ; on giles, _n._; on impeachment plan, ; on pickering impeachment, _n._, _n._; on chase impeachment and trial, _n._, , _n._, _n._, _n._, _n._, _n._, ; on burr, , _n._, _n._, _n._, _n._, _n._, ; on m. as witness, ; on not celebrating washington's birthday, _n._; joins republican party, _n._; on m.'s biography of washington, ; on swartwout, _n._, _n._; on burr conspiracy, _n._, ; on arrest of bollmann, _n._; on jefferson's personal rancor, _n._; on trial of burr, ; on adams's burr conspiracy report, _n._; on embargo and secession threats, = =, _n._; on federalists as aristocracy, ; governor of new hampshire, and dartmouth college affairs, , . pocket veto, randolph on, as impeachable offense, = =, . poetry, m. and, = =, , = =, , . police power, as offset to obligation of contracts, = =, ; and commerce clause, , , , . _see also_ new york _vs._ miln. politics, machine in virginia, = =, , _n._, = =, _n._, = =, , , - ; share in ratification in virginia, = =, , , , , ; federal constitution and parties, = =, ; abuse, ; influence of newspapers, = =, ; period of national egotism, ; effect of republican rule, _n._; randolph on government by, _n._ _see also_ elections, federalist party; republican party. poole, simeon, testimony in burr trial, = =, . poor whites of colonial virginia, = =, . pope, john, m. and his poems, = =, , . pope, john, of smith committee, = =, _n._ popularity, jefferson's desire, = =, _n._ population, density (c. ), = =, ; character of washington, = =, . portraits of m., = =, _n._, _n._ posey, thomas, and ratification, = =, _n._ potomac river, company for improvement, = =, , . potter, henry, granville heirs case, = =, . powell, levin, slandered, = =, _n._; on house's reply to adams's address ( ), = =, ; on m. in jonathan robins case, _n._ practice and evidence, m.'s opinion on, = =, . precedents, m.'s neglect of legal, = =, , = =, . preparedness, m. on need, = =, , , , = =, , - , ; ridiculed, = =, ; utter lack ( ), = =, . _see also_ army. prescott, william, on dartmouth college case, = =, _n._ president, ratification debate on office and powers, = =, , ; question of title, = =, ; m. on, as sole organ of external relations, . _see also_ elections; subpoena; and presidents by name. press, freedom of, franklin on license, = =, - ; m. on liberty and excess, = =, - ; martin on license, = =, , . _see also_ alien and sedition acts; newspapers. prices, at richmond (c. ), = =, - ; board in washington ( ), = =, . priest, william, on speculation, = =, . princeton university, honorary degree to m., = =, . prisoners of war, treatment, = =, . privateering, genêt's commissions, = =, ; _unicorn_ incident in virginia, - . prize law, amelia case, = =, , . _see also_ admiralty; international law. property, demand for equal division, = =, , ; m.'s conservatism on rights, = =, , . prosperity, degree, at period of confederation, = =, , , . public debt, problem under confederation, = =, - ; unpopularity, ; spirit of repudiation, , , ; resources under confederation, ; in ratification debate, , , , ; funding and assumption of state debts, = =, - ; financial and political effects of funding, - , , , . _see also_ debts; finances; paper money. public lands, jefferson on public virtue and, = =, ; state claims, = =, ; foot resolution, = =, _n._ _see also_ yazoo; land. publicists, lawyers as, = =, . publicola papers, = =, - ; replies, , . punch, recipe, = =, . punishments, cruel, = =, _n._ putnam, ----, arrest in france, = =, . _quarterly review_, on insolvency frauds, = =, _n._ quincy, josiah, on jefferson and popularity, = =, _n._; on resolution against minister jackson, = =, ; on admission of louisiana and secession, = =, ; and localism, . quoit (barbecue) club, m. as member, = =, - , = =, - ; memorial to m., . railroads, influence of dartmouth college case and gibbons _vs._ ogden on development, = =, , , . raleigh, m. on circuit at, = =, , , = =, , . rambouillet decree, = =, . ramsay, david, biography of washington, = =, _n._ ramsay, dennis, marbury _vs._ madison, = =, . randall, benjamin, in ratification convention, = =, . randall, henry s., on m. as secretary of state, = =, ; on m., = =, . randolph, david m., as witness in chase trial, = =, , . randolph, edmund, ancestry, = =, ; as lawyer, ; transfers practice to m., ; hite _vs._ fairfax, , ; in the legislature, ; importance of attitude on ratification, - , - ; secret intention to support it, ; in the convention: characterized, ; disclosure of support of ratification, - ; suppresses clinton's letter, - , ; effect on reputation, ; ascription of motives, in washington's cabinet, _n._; in convention debate, , , , , , ; and philips case, _n._; personal explanations, _n._, ; henry on change of front, ; answers henry's taunt, ; mason's denunciation, ; on fairfax grants, _n._; on opposition after ratification, = =, _n._; and first amendments, ; fauchet incident, resignation from cabinet, , ; on richmond meeting on jay treaty, , ; as orator, ; on weakness of supreme court, = =, _n._; counsel for burr, ; on motion to commit burr for treason, ; on subpoena to jefferson, , ; on overt act, . randolph, george, ancestry, = =, . randolph, isham, = =, . randolph, jacob, operates on m., = =, . randolph, jane, = =, , . randolph, john, of roanoke, ancestry, = =, ; insult by army officers, = =, ; debate with m. on marine corps, , ; in jonathan robins case, ; appearance, = =, ; as house leader, _n._; in judiciary debate ( ), - ; manager of chase impeachment, ; and articles of impeachment, ; break with jefferson over yazoo frauds, ; opening speech at chase trial, - ; references to m., political significance, , , - ; examination of m. at trial, ; conferences with giles, ; argument, - ; and acquittal, ; duelist, _n._; and burr conspiracy, ; and eaton's claim, _n._; on wilkinson's conduct, , ; on burr as military captive, ; and removal of judges on address, _n._; grand juror on burr, ; on government by politics, _n._; and _chesapeake-leopard_ affair, ; and yazoo frauds, , , - , , , , ; on localism, = =, ; on dangers in m.'s nationalist opinions, , ; in debate on supreme court ( ), ; on internal improvements and nationalism, - ; absorption in politics, ; clay duel, _n._; in virginia constitutional convention, ; on m. in convention, _n._ randolph, mary (isham), descendants, = =, . randolph, mary isham, = =, . randolph, peyton, and henry's stamp-act resolutions, = =, . randolph, richard, of curels, estate, = =, _n._ randolph, susan, on jefferson and rebecca burwell, = =, _n._ randolph, thomas, = =, . randolph, thomas m., on jay treaty resolutions in virginia legislature, = =, , , . randolph, william, descendants, = =, . randolph, william, and peter jefferson, = =, _n._ randolph family, origin and characteristics, = =, , . rappahannock county, va., loyal celebration, = =, _n._ ratification, opposition in virginia, = =, ; contest over call of virginia convention, previous amendment question, - ; effort for second framing convention, , , , , - ; practical politics in, , , , , ; economic division, ; division in virginia, ; importance of virginia's action, , , ; gathering of virginia delegates, ; popular ignorance of draft constitution, , , ; popular idea of consolidated government, ; popular majority against, , , , , , = =, _n._; virginia convention as first real debate, = =, , , , ; influence of revolutionary action of framers, - , , ; unimportance of action of four early states, ; calling of pennsylvania convention, ; election there, - ; pennsylvania convention, precipitancy, - ; address of pennsylvania minority, , , ; post-convention opposition in pennsylvania, - ; policy of constitutionalists in massachusetts, ; character of opposition there, , , - ; election there, ; general distrust as basis of opposition, , , , , , , , _n._, _n._, ; condensed argument for, ; and shays's rebellion, ; strength and standpoint of massachusetts opposition, ; influence of hancock, ; massachusetts recommendatory amendments and ratification, , ; soothing the opposition there, - ; question of bribery in massachusetts, _n._, _n._; contest in new hampshire, adjournment, , ; character of virginia convention, , ; effect of previous, on virginia, , ; election of delegates in virginia, - ; importance and uncertainty of randolph's attitude, - , - ; m.'s candidacy, ; campaign for opposition delegates, - ; opposition of leaders in state politics, _n._; maneuvers of constitutionalists, , , , , ; officers, , ; tactical mistakes of opposition, , ; detailed debate as a constitutionalist victory, - , ; characterizations, , - , , , , , , , , , ; attempts at delay, , , , ; authority of framers, , ; nicholas's opening for constitutionalists, ; henry's opening for opposition, ; disclosure of randolph's support, - ; organization of anti-constitutionalists, , ; clinton's letter for a second federal convention, randolph's suppression of it, , , = =, _n._; mason's speeches, = =, , , - , , , - , ; untactful offer on "conciliation," ; prospects, ascendancy of opposition, , - , ; influences on kentucky delegates, navigation of mississippi river, , , , , - , , ; pendleton's speeches, - , , ; lee's speeches, , , , ; henry's speeches, - , - , - , , , , , , , , - ; federal government as alien, , , , _n._; randolph's later speeches, , , , ; madison's speeches, , , , , , , , , ; nicholas's later speeches, , , ; corbin's speech, ; political managers from other states, , , ; question of use of money in virginia, _n._; demand for previous amendment, , , , , ; monroe's speech, , ; inattention to debate, ; m.'s social influence, ; m.'s speeches, - , - , - ; harrison's speech, ; grayson's speech, - ; slight attention to economic questions, _n._, _n._; and bill of rights, ; slavery question, ; payment of public debt, ; british debts, ; executive powers, ; judiciary debate, - , ; anti-constitutionalists and appeal to legislature, , , ; assault on henry's land speculations, - ; threats of forcible resistance, , ; contest over recommendatory amendments, ; vote, ; washington's influence, ; other personal influences, _n._; and fear of indians, ; character of virginia amendments, ; influence of success in new hampshire, ; jefferson's stand on amendments, ; influence on m., ; as a preliminary contest, , = =, , ; attempt of virginia legislature to undo, - ; virginia reservations, = =, _n._ rattlesnakes, as medicine, = =, . ravara, joseph, trial, = =, . rawle, william, escort for m.'s body, = =, . read, george, and judiciary act of , = =, . _rebecca henry_ incident, = =, . reed, george, as witness in chase trial, = =, _n._ reeves, john, and burr, = =, _n._ reeves, tapping, on louisiana purchase, = =, . reid, robert r., on missouri question, = =, . religion, state in virginia ( ), = =, , ; conditions in washington, = =, ; revival, _n._; m.'s attitude, = =, - ; frontier, _n._; troubles and disestablishment in new hampshire, , . _see also_ next titles. religious freedom, controversy in virginia, = =, , . religious tests, debate during ratification, = =, . representation, basis in virginia, = =, _n._; debate on slave, in virginia constitutional convention ( ), = =, - . republican party, jefferson's development, = =, , - , - , , ; as defender of the constitution, _n._; assaults on neutrality proclamation, ; economic basis, _n._; and french revolution, _n._, ; and x. y. z. dispatches, - , , - ; m. on motives in attack on alien and sedition acts, , ; issues in , ; and name "democratic," _n._, = =, _n._; federalist forebodings ( ), - ; social effects of rule, _n._; plans against judiciary, cause, - , ; union of democracy and state rights, ; chase's denunciations, , , ; and m.'s biography of washington, - ; treatment in biography, , - ; justices as apostates, , , , . _see also_ congress; elections; jefferson, thomas; state rights. republicans, name for anti-constitutionalists ( ), = =, . repudiation, spirit, = =, , , , . _see also_ debts. requisitions, failure, = =, , , , ; proposed new basis of apportionment, , . rhoad, john, juror, = =, . rhode island, declaration of independence, = =, _n._ richardson, william m., votes for war, = =, _n._; opinion in dartmouth college case, - . richmond, va., social and economic life ( - ), = =, - ; in , , - ; hospitality, ; m. city recorder, ; fire ( ), , = =, ; meeting on jay treaty, - ; growth, ; quoit club, - , = =, - , ; reception of m. on return from france, = =, - ; m.'s reply to address, - ; later social life, = =, ; vigilance committee, = =, _n._; m.'s lawyer dinners, , ; city currency, ; and jackson's veto of river and harbor bill ( ), ; m.'s funeral, ; tributes to him, . _richmond enquirer_, on m. and burr at wickham's dinner, = =, ; and subpoena to jefferson, ; attack on m. during burr trial, - ; on yazoo claims, ; attack on m'culloch _vs._ maryland, = =, - , ; tribute to m., . _see also_ ritchie, thomas. _richmond examiner_, attacks on m. ( ), = =, , _n._ richmond light infantry blues, punch, = =, _n._ richmond society for promotion of agriculture, m.'s interest, = =, . _richmond whig and advertiser_, on m. and election of , = =, ; tribute to m., . ritchie, thomas, council of state as his machine, = =, ; and trial of burr, = =, ; on federalists as traitors, = =, _n._; control over virginia politics, ; and first bank of the united states, ; attack on m'culloch _vs._ maryland, ; and taylor's attack on m.'s opinions, , ; attack on cohens _vs._ virginia, . _see also_ _richmond enquirer_. rittenhouse, david, olmstead case, = =, . river and harbor bill, jackson's pocket veto, = =, . river navigation, steamboat and internal improvements, = =, - . roads. _see_ communication. roane, spencer, as judge, = =, ; council of state as his machine, ; anti-constitutionalist attack on randolph ( ), _n._; accuses m. of hypocrisy, = =, ; and chief justiceship, = =, , , ; and nationalism, ; m.'s enemy, = =, ; and m.'s integrity, _n._; and livingston _vs._ jefferson, ; control of virginia politics, ; decision in hunter _vs._ fairfax's devises, , ; denies right of supreme court to hear case, , ; and first bank of the united states, ; attack on m'culloch _vs._ maryland, , - , ; inconsistent purchase of bank stock, ; tribute to m., ; m.'s reply to attack, - ; attack on cohens _vs._ virginia, , ; m. on it, , ; and amendment on judiciary, , . robertson, david, report of virginia ratification debates, = =, ; stenographer and linguist, = =, . robin, m.'s servant, = =, _n._ robins, jonathan. _see_ jonathan robins case. robinson, john, loan-office bill and defalcations, = =, . rodney, cæsar a., and marbury _vs._ madison, = =, _n._; argument in chase trial, - ; and holding of swartwout and bollmann, , _n._; and trial of burr, . rodney, thomas, and burr, = =, . rôle d'équipage, and french depredations on neutral trade, = =, _n._ ronald, william, as lawyer, = =, ; in virginia ratification convention, ; ware _vs._ hylton, = =, . roosevelt, nicholas j., and steamboat experiments, = =, ; and steamboat navigation of the mississippi, , _n._, _n._ roosevelt, theodore, on british naval power, = =, _n._; on impressment, _n._ ross, james, and disputed elections bill, = =, . rowan, john, on green _vs._ biddle, = =, ; on supreme court, . rush, benjamin, conway cabal, = =, - . rutgers _vs._ waddington, = =, . rutledge, edward, on spirit of repudiation, = =, . rutledge, john [ ], and supreme court, = =, _n._; in federal convention, on obligation of contracts, _n._ rutledge, john [ ], and slavery, = =, : on judiciary bill ( ), ; on french treaty, _n._; in judiciary debate ( ), = =, - ; as british partisan, = =, . s. (? samuel nason), and ratification, = =, . st. cloud decree, = =, - , - . st. tammany's feast at richmond, = =, . salaries, federal ( ), = =, _n._ _sandwich_ incident, = =, . sanford, nathan, opinion on steamboat monopoly and interstate commerce, = =, . sanford, me., and ratification, = =, . santo domingo, influence in united states of negro insurrection, = =, - . sargent, nathan, on esteem of m., = =, _n._ saunders, john. _see_ ogden _vs._ saunders. savage, john, opinion on steamboat monopoly, = =, . _savannah gazette_, on yazoo frauds, = =, . schmidt, gustavus, on m. as a lawyer, = =, . schoepf, johann d., on virginia social conditions, = =, _n._; on irreligion in virginia, _n._; on shiftlessness, . schuyler, philip, dissatisfaction, = =, ; and burr, = =, _n._ scott, john, in virginia constitutional convention, = =, . scott, john b., and yazoo lands, = =, _n._ scott, joseph, and burr conspiracy, = =, . scott, sir walter, and burr, = =, _n._ scott, sir william, on slave trade and law of nations, = =, . scott, winfield, on irreligion in washington, = =, ; on jefferson and trial of burr, ; and nullification, = =, ; escort for m.'s body, . secession, federalist threats over assault on judiciary ( ), = =, , , , , , , ; louisiana purchase and threats, ; and chase trial, ; new england federalist plots and burr, , ; merry's intrigue, , ; sentiment in west, , , ; of new england thought possible, ; burr and merry, - ; no proposals in burr's conferences, , , , ; rumors of burr's purpose, spanish source, , , ; burr denies such plans, , _n._, , ; m. and tucker on right, ; threats over neutral trade controversy, = =, _n._, , , ; m.'s rebuke, ; and admission of louisiana, ; war of and threats, ; hartford convention, ; threats in attacks on m.'s nationalist opinions, , , , , ; and missouri struggle, - ; m. on resistance to, , ; jefferson's later threats, , ; south carolina threat over elkison case, ; threat on internal improvement policy, ; m. on supreme court and threats, , . _see also_ nationalism; nullification; state rights. secretary of state, m. and ( ), = =, ; m.'s appointment, , - ; m. remains after chief justiceship, . secretary of war, m. declines, = =, . sedgwick, theodore, and m. ( ), = =, ; on effect of x. y. z. dispatches, ; on gerry, ; on m.'s views on alien and sedition acts, , , ; on m.'s election ( ), ; on m.'s importance to federalists in congress, ; on m. and disputed elections bill, , ; on results of session ( ), ; on m. as man and legislator, , ; on m.'s efforts for harmony, ; on republican rule, = =, ; on plans against judiciary, ; on repeal of judiciary act, ; and secession, ; on burr, _n._ sedition act. _see_ alien and sedition acts. senate, arguments on, during ratification, = =, ; opposition to secrecy, = =, . _see also_ congress. separation of powers, m. on limitation to judicial powers, = =, - ; incidental executive exercise of judicial powers, ; m. on legislative reversal of judicial decisions, = =, , . _see also_ declaring acts void. sergeant, john, counsel in osborn _vs._ bank, = =, ; and in cherokee nation _vs._ georgia, , , ; and in worcester _vs._ georgia, ; escort for m.'s body, . sergeant, thomas, practitioner before m., = =, _n._ sewall, david, on demagoguery, = =, _n._; on ratification contest, . seward, anna, as philadelphia belle, = =, . sewell, t., and french war, = =, . shannon, richard c., witness against pickering, reward, = =, _n._ shays's rebellion, m. on causes, = =, , , = =, _n._; taxation not the cause, = =, , ; effect on statesmen, - ; jefferson's defense, - ; as phase of a general movement, _n._; and ratification, . shephard, alexander, grand juror on burr, = =, _n._ shepperd, john, and yazoo lands act, = =, . sherburne, john s., witness against pickering, reward, = =, _n._ sherman, roger, and judiciary act of , = =, ; on obligation of contracts, _n._ shippen, margaret, as philadelphia belle, = =, . shirley, john m., work on dartmouth college case, = =, _n._ short, payton, at william and mary, = =, . short, william, at william and mary, = =, ; on french revolution, = =, ; jefferson's admonitions, , ; on lafayette, _n._ "silver heels," m.'s nickname, = =, , . simcoe, john g., and frontier posts, = =, . sims, thomas, on slander on powell, = =, _n._ singletary, amos, in ratification convention, = =, , . skipwith, fulwar, on x. y. z. mission, = =, ; on probable war, . slaughter, philip, on m. at valley forge, = =, , . slave representation, debate in virginia constitutional convention ( ), = =, - . slave trade, northern defense ( ), = =, ; act against engaging in, ; m. on international recognition, = =, , . slavery, effect in colonial virginia, = =, - ; in debate on ratification, ; attitude of congress ( ), = =, ; acquiescence in, = =, _n._; nationalism and overthrow, = =, , , ; m.'s attitude, - . _see also_ adjoining titles; and missouri compromise. slaves, of m.'s father, = =, _n._; owned by m., , ; jefferson's debts for, _n._; provision in peace of , controversy, , = =, , , _n._; in washington ( ), = =, ; common carriers and transportation, = =, . sloan, james, and attempt to suspend habeas corpus ( ), = =, . smallpox, in revolutionary army, = =, ; inoculation against, . smallwood, william, in philadelphia campaign, = =, . smilie, john, in ratification convention, = =, . smith, ann (marshall), = =, . smith, augustine, m.'s uncle, = =, . smith, israel, of new york, in burr conspiracy, = =, _n._, . smith, senator israel, of vermont, and impeachment of chase, = =, , ; votes to acquit, , . smith, jeremiah, on republican hate of m., = =, ; counsel in dartmouth college case, = =, , , ; fee and portrait, _n._; on m.'s decline, . smith, john, m.'s uncle, = =, . smith, john, of new york, votes to acquit chase, = =, , . smith, john, of ohio, votes to acquit chase, = =, ; and burr conspiracy, , ; wilkinson's letter to, ; and rumor of disunion plan, , ; indicted for treason, _n._; _nolle prosequi_, , _n._; attempt to expel from senate, - . smith, john blair, on henry in campaign for ratification delegates, = =, . smith, john cotton, and eaton's report on burr's plans, = =, _n._ smith, jonathan, in ratification convention, = =, . smith, lize (marshall), = =, . smith, melancthon, on prosperity during confederation, = =, ; on revolutionary action of framers, . smith, r. barnwell, on nullification, = =, . smith, robert, dismissal, = =, ; vindication, and m., . smith, sam, on english interest in ratification, = =, . smith, samuel, on pickering impeachment, = =, ; votes to acquit chase, ; and attempt to suspend habeas corpus ( ), ; and ogden-smith trial, _n._; of committee on expulsion of smith of ohio, _n._ smith, samuel h., on drinking at washington, = =, _n._ smith, mrs. samuel h., on washington social life ( ), = =, _n._; on pinkney in court, = =, . smith, thomas m., anecdote of m., = =, _n._ smith, judge william, of georgia, and yazoo lands, = =, . smith, representative william, of south carolina, on french agents in united states ( ), = =, ; on travel ( ), = =, _n._ smith, senator william, of south carolina, on missouri question, = =, . smith, william s., trial, = =, _n._ smith _vs._ maryland, = =, _n._ sneyd, honora, as philadelphia belle, = =, . snowden, edgar, oration on m., = =, . soane, henry, = =, _n._ social conditions, in later colonial virginia, = =, - ; drinking, , _n._, _n._, - , = =, , _n._, = =, , , _n._, = =, _n._; qualities and influence of backwoodsmen, = =, - , , , - ; frontier life, - , , _n._, = =, - ; dress, = =, , , , = =, , ; richmond in , = =, ; degree of prosperity at period of confederation, , ; classes in virginia, , ; jefferson on sectional characteristics, - ; contrasts of elegance, ; food and houses, , ; amusements, ; washington boarding-houses, = =, ; lack of equality ( ), ; state then, _n._; advance under republican rule, _n._; later social life at richmond, . _see also_ bill of rights; communication; economic conditions; education; government; law and order; literature; marriage; religion; slavery. society, m.'s dislike of official, at washington, = =, - . "somers," attack on m., = =, _n._, _n._ south carolina, and m'culloch _vs._ maryland, = =, ; elkison negro seaman case, attack on johnson's decision, , ; and tariff of , ; effect of georgia-cherokee contest on, . _see also_ nullification. south carolina yazoo company, = =, _n._ _see also_ yazoo. spain, attitude toward united states ( ), = =, ; depredations on american commerce, ; intrigue in west, wilkinson as agent, = =, , ; resentment of west, expectation of war over west florida, , , , , , , _n._; treaty of , _n._; intrigue and yazoo grant, . spanish america, desire to free, = =, , ; miranda's plans, , , , ; revolt and m.'s contribution to international law, = =, - . _see also_ burr conspiracy. speculation, after funding, = =, , ; in land, ; as national trait, = =, ; after war of , = =, , - . _see also_ crisis of, . speech, freedom, and sedition trials, = =, . _see also_ press. stamp act, opposition in virginia, = =, - . standing army. _see_ army. stanley, john, in judiciary debate ( ), = =, _n._, . stark, john, ware _vs._ hylton, = =, . state rights and sovereignty, effect on revolutionary army, = =, , - , ; in american revolution, ; and failure of the confederation, - ; union with democracy, = =, ; and declaring federal acts void, ; m. on, as factor under confederation, - ; compact, = =, ; strict construction and reserved rights, _n._; taylor's exposition, - ; forces (c. ), ; m. on effect of strict construction, ; and georgia-cherokee contest, ; incompatible with federation, . _see also_ contracts; eleventh amendment; implied powers; government; kentucky resolutions; nationalism; nullification; secession; virginia resolutions. states, madison on necessity of federal veto of acts, = =, ; suits against, in federal courts, , = =, . _see also_ government. stay and tender act in virginia, = =, _n._ _see also_ debts. steamboats, fulton's experiments, livingston's interest, = =, - ; livingston's grants of monopoly in new york, ; first on the mississippi, grant of monopoly in louisiana, , _n._, _n._, ; other grants of monopoly, ; interstate retaliation, ; great development, , . _see also_ gibbons _vs._ ogden. steele, jonathan, witness against pickering, reward, = =, _n._ stephen, adam, in ratification convention, characterized, = =, ; on indians, . steuben, baron von, on revolutionary army, = =, ; training of the army, _n._, . stevens, edward, officer of minute men, = =, . stevens, thaddeus, as house leader, = =, _n._ stevens _vs._ taliaferro, = =, _n._ stevenson, andrew, resolution against m'culloch _vs._ maryland, = =, ; and repeal of appellate jurisdiction of supreme court, . stewart, dr. ----, and jay treaty, = =, . stirling, william, lord, intrigue against, = =, . stith, judge, and yazoo lands, = =, . stoddert, benjamin, _aurora_ on, = =, ; at burr trial, = =, ; as secretary of the navy, _n._; proposes m. for president, = =, - . stone, david, and granville heirs case, = =, _n._ stone _vs._ mississippi, = =, _n._ stony point, assault, = =, - . story, ----, on ratification in virginia, = =, . story, elisha, republican, = =, ; children, ; in revolution, _n._ story, joseph, on m. and his father, = =, ; on m. in jonathan robins case, = =, ; on washington ( ), = =, ; and common-law jurisdiction, _n._, = =, _n._; on chase, = =, _n._; on jefferson's anas, _n._; and yazoo claims, , ; on conduct of minister jackson, = =, ; on conduct of federalists ( ), _n._; on federalists and war of , , ; on chief justiceship, _n._; appointed justice, history of appointment, , - ; compared and contrasted with m., ; on m.'s attitude toward women, ; and poetry, ; on m.'s charm, ; on life of justices, , ; on m.'s desire for argument of cases, _n._, _n._; character, ; as supplement to m., , , ; republican, ; birth, education, ; antipathy of federalists, ; in congress, jefferson's enmity, , ; cultivated by federalists, ; devotion to m., , ; authority on law of real estate, ; and nationalism, , ; on constitutionality of embargo, _n._; authority on admiralty, ; united states _vs._ palmer, ; appearance, ; on oratory before supreme court, , _n._; dissent in _nereid_ case, ; opinions in martin _vs._ hunter's lessee, , , , - ; assailed for opinion, contemplates resignation, ; and dartmouth college case, , _n._, , , , _n._, , ; opinion in terrett _vs._ taylor, ; on dartmouth decision, ; on m'culloch _vs._ maryland, , ; and m.'s reply to roane, ; omnivorous reader, ; and jefferson's attack on judiciary, , ; opinion in green _vs._ biddle, ; on todd's absence, _n._; in massachusetts constitutional convention, ; on slave trade and law of nations, ; opinion in bank _vs._ dandridge, ; dissent in ogden _vs._ saunders, _n._; on proposed repeal of appellate jurisdiction, ; and m.'s suggested resignation, ; on m.'s recovery, ; dissent in cherokee nation _vs._ georgia, _n._; on worcester _vs._ georgia, ; on nullification movement, ; on jackson's proclamation, ; m. and commentaries and its dedication, , , , ; on webster's speech against nullification, ; article on statesmen, ; on m.'s green old age, ; and briscoe _vs._ bank and new york _vs._ miln, , _n._; and m.'s decline, , ; epitaph for m., , . strict construction. _see_ nationalism; state rights. strong, caleb, and judiciary act of , = =, . stuart, david, and chancery bill ( ), = =, ; on title for president, = =, ; on virginia's hostility to national government ( ), _n._ stuart, gilbert, and engraving for m.'s _washington_, = =, _n._; portraits of dartmouth college case counsel, = =, _n._ stuart _vs._ laird, = =, . sturges _vs._ crowninshield, case, = =, ; m.'s opinion, - ; right of state to enact bankruptcy laws, - ; new york insolvency law as impairing the obligation of contracts, - ; reception of opinion, , . sturgis, josiah. _see_ sturges _vs._ crowninshield. subpoena _duces tecum_, to president adams, = =, , ; to jefferson in burr trial, - , , - ; jefferson's reply, - ; of cabinet officers in ogden-smith case, _n._ suffrage, limitation, = =, _n._, , = =, _n._, _n._; problem in virginia, m.'s conservatism on it, = =, - ; in massachusetts constitutional convention ( ), ; debate in virginia constitutional convention ( ), - . sullivan, george, counsel in dartmouth college case, = =, . sullivan, john, dissatisfaction, = =, ; brandywine campaign, ; germantown, ; intrigue against, . sullivan, john l., steamboat monopoly, = =, . sullivan, samuel, osborn _vs._ bank, = =, . sumter, thomas, on judiciary act of , = =, ; and yazoo claims, . supreme court, ware _vs._ hylton, m.'s argument, = =, - ; hunter _vs._ fairfax, - ; m. declines associate justiceship, , , ; salaries ( ), _n._; question of chief justice ( ), ; jefferson's attitude and plans against, = =, - ; united states _vs._ hudson, no federal common-law jurisdiction, _n._; influence of alien and sedition acts on position, ; justices on circuit, ; act abolishing june session, purpose, - ; low place in public esteem, ; first room in capitol, _n._; mandamus jurisdiction, - ; plan to impeach all federal justices, - , , , ; release of swartwout and bollmann on habeas corpus, , - ; renewal of attack on, during burr trial, ; becomes republican, = =, ; under m. life and consultations of justices, - ; character on m.'s control, ; practitioners in m.'s time, , , - ; appointment of successor to cushing, story, - ; quarters after burning of capitol, ; appearance in _nereid_ case, ; martin _vs._ hunter's lessee, right of appeal from state courts, - ; salary question ( ), ; change in repute, ; apostacy of republican justices, , , , ; wirt on, _n._; attack in congress, movement to restrict power over state laws ( - ), - , - , ; renewal of attempt ( ), - ; proposed virginia amendment, , ; green _vs._ biddle, protest of kentucky, - , - ; alarm in, over attacks, ; reversal of attitude toward, causes, - ; personnel ( ), ; becomes restive under m.'s rule, , ; m. anticipates reaction in, against nationalism, , , , ; jefferson's later denunciation, ; jackson's denial of authority of opinions, - ; rule of majority on constitutional questions, . _see also_ commerce; contracts; declaring acts void; implied powers; international law; judiciary; marshall, john (_chief justice_); nationalism; story, joseph; cases by title. swartwout, samuel, takes burr's letter to wilkinson, = =, ; and wilkinson, , _n._, _n._; denial of wilkinson's statement, _n._; character then, later fall, _n._, ; arrested, mistreatment, , ; brought to washington, ; held for trial, - ; discharged by supreme court, - ; testifies at burr trial, ; not indicted, _n._; insults and challenges wilkinson, ; as jackson's adviser, = =, _n._ sweden, and barbary powers, = =, . talbot, isham, on supreme court, = =, . talbot, silas, _sandwich_ affair, = =, ; _amelia_ case, = =, . talbot _vs._ seeman, = =, , , _n._ taliaferro, lawrence, colonel of minute men, = =, . talleyrand périgord, charles m. de, on narrow belt of settlement, = =, ; on baltimore, ; on food and drink, ; rise, = =, , ; opinion of united states, , ; and bonaparte, , ; and reopening of american negotiations, . _see also_ x. y. z. mission. tallmadge, benjamin, on war of , = =, _n._ talmadge, matthias b., ogden-smith trial, = =, _n._ taney, roger b., as practitioner before m., = =, _n._; counsel in brown _vs._ maryland, ; career, _n._; later opinion on brown _vs._ maryland, ; chief justice, _n._ tariff, antagonistic state laws during confederation, = =, , ; taylor's attack on protection, = =, _n._, - ; as element in strife of political theories, , ; threatened resistance, reference to by m. and johnson, , _n._, _n._, , , , ; debate ( ) and gibbons _vs._ ogden, ; compromise, . _see also_ import duties; nullification; taxation. tarleton, banastre, in philadelphia society, = =, ; in virginia, _n._ tarring and feathering, practice, = =, _n._ tassels, george, trial and execution, = =, , . tavern, richmond ( ), = =, ; at raleigh, = =, . taxation, virginia commutable act, = =, _n._; not cause of shays's rebellion, , ; opposition to power in federal constitution, ; ratification debate, , , , , , , , ; proposed amendment on power, ; federal, as issue ( ), = =, , _n._; exemption of lands as contract, = =, - ; m'culloch _vs._ maryland, osborn _vs._ bank, state taxation of federal instruments, - ; state power and commerce clause, , - . _see also_ directory; excise; finances; requisitions; tariff. taylor, george keith, and privateer incident, = =, ; courtship and marriage, m.'s interest, , ; federal appointment as nepotism, _n._ taylor, john, of caroline, hite _vs._ fairfax, = =, , ; attack on hamilton's financial system, = =, ; suggests idea of kentucky resolutions, ; and callender trial, = =, _n._, , , , , ; and repeal of judiciary act, _n._, - ; control of virginia politics, = =, ; attack on m.'s nationalist opinions, , - ; attack on protective tariff, _n._, - . taylor, john, of mass., on travel, = =, ; in ratification convention, . taylor, peter, testimony in burr trial, = =, , , , . taylor, robert, grand juror on burr, = =, _n._ taylor, thomas, security for burr, = =, _n._ tazewell, littleton w., grand juror on burr, = =, _n._; on swartwout, _n._; m. soothes, = =, ; in virginia constitutional convention, ; in debate on state judiciary, , . tennessee, burr in, his plan to represent in congress, = =, - , , ; tax on external banks, = =, ; and m'culloch _vs._ maryland, . tennessee company, = =, , _n._ _see also_ yazoo. terence, on law and injustice, = =, . terrett _vs._ taylor, = =, _n._, _n._ territory, powers of governor, = =, ; m. on government, = =, - . thacher, george, and slavery, = =, . thatcher, samuel c., on m.'s biography of washington, = =, , . thayer, james b., on m. at wickham's dinner, = =, _n._ theater, m. and, = =, , . thibaudeau, antoine c. de, and th fructidor, = =, . thomas, robert, and yazoo lands act, = =, . thompson, james, as m.'s instructor, = =, ; parish, ; political opinions, ; and military preparation, . thompson, john, address on jay treaty, = =, - ; curtius letters on m., , , = =, ; character, = =, _n._ thompson, john a., arrest by georgia, = =, . thompson, lucas p., in virginia constitutional convention, = =, , . thompson, philip r., in debate on repeal of judiciary act, = =, ; and attempt to suspend habeas corpus ( ), . thompson, samuel, in ratification convention, = =, , , . thompson, smith, on livingston steamboat monopoly, = =, ; dissents from brown _vs._ maryland, ; on slave trade and law of nations, ; opinion in ogden _vs._ saunders, _n._; dissent in craig _vs._ missouri, ; dissent in cherokee nation _vs._ georgia, _n._; and m., ; and briscoe _vs._ bank and new york _vs._ miln, . thompson, william, attack on m., = =, , - . thruston, buckner, of smith committee, = =, _n._ ticknor, george, on m., = =, _n._; on supreme court in _nereid_ case, . tiffin, edward, and burr conspiracy, = =, . tilghman, tench, on luxury in philadelphia, = =, _n._ titles, influence of french revolutions, = =, - . toasts, typical federalist ( ), = =, _n._; federalist, to the judiciary, _n._; burr's, on washington's birthday, = =, ; jefferson's, on freedom of the seas, = =, ; jackson's "union," . tobacco, characteristics of culture, = =, ; universal use, = =, . todd, thomas, and martin _vs._ hunter's lessee, = =, ; and dartmouth college case, ; and green _vs._ biddle, _n._; on regulating power to declare state acts void, _n._ tompkins, daniel d., and livingston steamboat monopoly, = =, . tories. _see_ loyalists. townsend, henry a., and livingston steamboat monopoly, = =, _n._ tracy, uriah, and reopening of french negotiations, = =, ; on pardon of fries, _n._; on republican ascendancy ( ), _n._; in debate on repeal of judiciary act, = =, ; on louisiana purchase, ; at chase trial, ; and burr, . transportation. _see_ commerce; communication; internal improvements. travel, hardships, = =, , - ; conditions as an index of community isolation, , ; conditions (c. ), = =, _n._, _n._; stage time between richmond and raleigh (c. ), = =, _n._ treason, jefferson's views in and , = =, ; fries trial, = =, - ; basis of constitutional limitation, - , - ; necessity of actual levy of war, what constitutes, , , - , , , , - , ; presence of accused at assembly, , , - , , - , , - ; legal order of proof, , , - ; attempt to amend law, . treaties, m. on constitutional power of execution, jonathan robins case, = =, - ; supreme law, = =, , = =, . _see also_ next title. treaty-making power, in ratification debate, = =, , ; in contest over jay treaty, = =, , , - , - . trevett _vs._ weeden, = =, . trimble, david, attack on supreme court, = =, . trimble, robert, opinion in ogden _vs._ saunders, = =, _n._ triplett, james, and callender trial, = =, . tronçon, -----, and th fructidor, = =, . troup, george m., and yazoo claims, denunciation of m., = =, - . troup, robert on republicans and x. y. z. dispatches, = =, , ; on m.'s return, ; on war preparations, , ; on adams's absence, ; on disruption of british-debts commission, ; on federalist dissensions, ; on hamilton's attack on adams, _n._; on morris in judiciary debate ( ), = =, ; on isolation of burr, _n._, _n._ trumbull, jonathan, and pardon of williams, = =, _n._ truxtun, thomas, and burr conspiracy, = =, , , ; at trial, testimony, , - , ; career and grievance, _n._, . tucker, george, on social conditions in virginia, = =, _n._, _n._ tucker, henry st. george, and internal improvements, = =, ; counsel in martin _vs._ hunter's lessee, . tucker, st. george, on british debts, = =, _n._; and right of secession, = =, ; and martin _vs._ hunter's lessee, = =, _n._, _n._ tucker, thomas t., journey ( ), = =, _n._ tunno, adam, and yazoo lands, = =, _n._ tupper, edward w., and burr conspiracy, = =, . turner, thomas, sale to m.'s father, = =, . turner _vs._ fendall, = =, . turreau, louis m., on secession threats, = =, _n._ twelfth amendment, origin, = =, _n._ tyler, comfort, in burr conspiracy, = =, , , , ; indicted for treason, _n._ tyler, john [ ], in ratification convention: vice-president, = =, ; in the debate, ; and amendments, , ; on judiciary, = =, ; on speculation, _n._; on m. and neutral trade controversy, = =, ; appointment as district judge, jefferson's activity, - ; livingston _vs._ jefferson, - . tyler, john [ ], on bank of the united states, = =, ; and american colonization society, , _n._; tribute to m., _n._; in virginia constitutional convention, . _unicorn_ incident, = =, - . union, m.'s early training in idea, = =, ; lack of popular appreciation, . _see also_ confederation; continental congress; federal constitution; government; nationalism; nullification; state rights; secession. _united states oracle of the day_, on paterson's charge, = =, _n._ united states _vs._ fisher, = =, . united states _vs._ hopkins, = =, _n._ united states _vs._ hudson, = =, _n._ united states _vs._ lawrence, = =, _n._ united states _vs._ palmer, = =, , . united states _vs._ peters, = =, _n._, = =, - . united states _vs._ ravara, = =, _n._ united states _vs._ schooner peggy, = =, , _n._ united states _vs._ worral, = =, _n._ upper mississippi company, yazoo land purchase, = =, . _see also_ yazoo. upshur, abel p., and american colonization society, = =, ; in virginia constitutional convention, , _n._ valentine, edward v., on m., = =, _n._ valley forge, army at, = =, - , , ; m.'s cheerful influence, - , ; discipline, . van buren, martin, on revolutionary action of framers, = =, _n._; on supreme court, = =, , ; as jackson's adviser, _n._ van horne's lessee _vs._ dorrance, = =, . van ingen, james, and livingston steamboat monopoly, suits, = =, - . varnum, james m., on army at valley forge, = =, . varnum, joseph b., and attempt to suspend habeas corpus ( ), = =, . vassalborough, me., and ratification, = =, . _venus_ case, m.'s dissent, = =, , . vermont, and kentucky and virginia resolutions, = =, _n._, ; steamboat monopoly, = =, . vestries in colonial virginia, = =, . veto of state laws, madison on necessity of federal, = =, . _see also_ declaring acts void. villette, madame de, as agent in x. y. z. mission, = =, ; m.'s farewell to, . virginia, state of colonial society, = =, - ; character and influence of frontiersmen, - ; as birthplace of statesmen, ; colonial roads, _n._; vestries, ; convention ( ), , ; preparation for the revolution, - ; battle of great bridge, - ; norfolk, ; jefferson's services during the revolution, ; m. in council of state, - ; political machine, , = =, _n._, = =, , , - ; suffrage and representation under first constitution, = =, _n._; religious state and controversy, - ; and british debts, - ; hardships of travel, - ; classes, , ; houses and food, , ; drinking, - ; paper money, ; prosperity during confederation, ; tariff, ; attack on constitution of ( ), = =, _n._; and assumption of state debts, - ; hostility to new government ( ), _n._; and whiskey insurrection, - ; _unicorn_ privateer incident, - ; election on neutrality issue ( ), ; and jay treaty, , , ; richmond meeting on jay treaty, - ; marshall's campaign for congress ( ), - , , - ; election methods and scenes, - ; survey for internal improvements ( ), = =, - ; m. anticipates split, . _see also_ following titles; and bank of virginia; cohens _vs._ virginia; house of burgesses; legislature; martin _vs._ hunter's lessee; ratification. virginia constitutional convention ( - ), m. and election to, = =, ; need, jefferson and demand, , ; suffrage problem, m.'s conservatism on in, - ; prominent members, ; petition on suffrage, ; m.'s report on judiciary, , ; existing oligarchic system, - ; extent of demand for judicial reform, ; m. as reactionary in, , , ; m.'s standing, ; debate on judiciary, - ; debate on suffrage, - ; justification of conservatism, . virginia resolutions, m. foretells, = =, ; framing and adoption, ; madison's address of the majority, , ; m.'s address of the minority, - ; military measure to uphold, , ; henry on, ; consideration in massachusetts, = =, ; dana on, ; as republican gospel, - ; resolutions of federalist states on, _n._, _n._; madison's later explanation, ; as continued creed of virginia, , . _see also_ state rights. virginia yazoo company, = =, _n._ _see also_ yazoo. visit and search, by british vessels, = =, . _see also_ impressment; neutral trade. wadsworth, peleg, and m. ( ), = =, . wait, thomas b., on ratification in pennsylvania, = =, _n._, . waite, morrison r., on dartmouth college case, = =, . waldo, albigence, on army at valley forge, = =, - , ; on prisoners of war, . walker, david, on bank of the united states, = =, . walker, freeman, on missouri question, = =, . war. _see_ army; militia; navy; preparedness; and wars by name. war of , m.'s opposition, = =, , - ; bibliography, _n._; demanded by second generation of statesmen, , ; declaration, ; causes, _n._, - ; opposition of federalists, , , , ; and m.'s candidacy for president, - ; dependence on european war, , ; hartford convention, ; direct and indirect results, - ; finances, , . warden, john, offends virginia house, = =, . ware _vs._ hylton, m.'s connection and arguments, = =, - . warrington, james, and yazoo lands, = =, _n._ warville, jean p. brissot de, on tobacco culture, = =, _n._; on drinking, _n._ washington, bushrod, on madison in ratification convention, = =, ; and jay treaty, = =, ; and m. ( ), ; appointment to supreme court, , ; appearance, = =, , ; and martin _vs._ hunter's lessee, ; and dartmouth college case, ; and m.'s reply to attack on m'culloch _vs._ maryland, ; opinion in green _vs._ biddle, ; opinion in ogden _vs._ saunders, _n._; death, . _see also_ biography. washington, george, _pre-presidential years_: in braddock's march and defeat, = =, - ; reported slain, ; and m.'s father, , ; landed estate, _n._; as statesman, ; early reading, _n._; influence of lord fairfax, ; on frontier discomforts, _n._, _n._; in virginia convention ( ), ; on military preparedness, ; on state of the army, - , , , , ; on militia, - , ; smallpox, _n._; brandywine campaign, - ; campaign before philadelphia, - ; as sole dependence of the revolution ( ), , , ; germantown, - ; besought to apostatize, , , ; final movements before philadelphia, - ; fears at valley forge, ; discipline, ; intrigue against, - ; plea for a better continental congress, - , ; distrust of effect of french alliance, ; monmouth, - ; and stony point, ; and light infantry, _n._; and military smartness, _n._; and mary cary, _n._; and purchase of land from m.'s father, ; employs m.'s legal services, ; on post-revolutionary assembly, ; and relief for thomas paine, ; and internal improvements, ; hot-tempered nationalism during confederation, ; loses faith in democracy, ; on unreliability of newspapers, ; on drinking, _n._, ; on chimney-corner patriots, ; on debased specie, ; despair ( ), , ; on requisitions, ; on responsibility of states for failure of confederation, , ; on influence in virginia of previous ratifications, ; and randolph's attitude on ratification, , _n._, _n._; on campaign for anti-constitutionalist delegates, , ; on opposition of leaders in state politics, _n._; on detailed debate in virginia convention, _n._; influence on ratification convention, ; on the contest in virginia, ; and opposition after ratification, ; as distiller, = =, _n._; on west and union, = =, _n._ _as president and after_: hardships of travel, = =, , ; influence of french revolution, = =, ; and beginning of french revolution, ; and genêt, ; and imprisonment of lafayette, ; on democratic clubs, , , ; virginia address ( ), ; on virginia's opposition ( ), _n._; opposes partisanship, ; and antagonism in cabinet, ; and whiskey insurrection, , ; and neutrality, ; on attacks, _n._, ; and attacks on m.'s character, , ; and british crisis ( ), ; attacks on, over jay treaty, - ; j. q. adams on policy, _n._; on attacks on treaty, ; m. refuses cabinet offices, , , ; m. advises on cabinet positions, - , ; virtual censure by virginia legislature, - ; offers french mission to m., - ; and support of jay treaty, , ; final republican abuse, , - ; address of virginia legislature ( ), - ; and m.'s appointment to x. y. z. mission, ; monroe's attack, ; m.'s letters during x. y. z. mission, , - , - , - ; on hopes for x. y. z. mission, ; on x. y. z. dispatches and french partisans, , , ; federalist toast to ( ), _n._; accepts command of army, ; does not anticipate land war, ; on gerry, ; persuades m. to run for congress ( ), - ; langhorne letter, _n._; and m.'s election, ; and m.'s apology for statement by supporters, , ; death, m.'s announcement in congress, - ; house resolutions, authorship of "first in war" designation, - ; and slavery petitions, _n._; temperament contrasted with adams's, _n._; jefferson's mazzei letter on, _n._; weems's biography, = =, _n._; and french war, _n._; m.'s biography on administration, - ; and yazoo lands, . _see also_ biography. washington, d.c., morris's land speculation, = =, _n._; condition when first occupied, _n._; aspect ( ), = =, - ; lack of progress, - ; malaria, ; absence of churches, ; boarding-houses, ; population, ; drinking, ; factions, ; webster on, = =, . _see also_ district of columbia. _washington federalist_, on hamilton's attack on adams, = =, ; campaign virulence, _n._; eulogism of adams, _n._; m.'s reputed influence over, _n._, , _n._; and jefferson-burr contest, _n._, ; on hay's attack on m., _n._; on republican armed threat, _n._, _n._; sentiment after jefferson's election, _n._; on judiciary debate ( ), and secession, = =, ; on bayard's speech on judiciary, ; on randolph's speech, _n._; on repeal of judiciary act, , ; on burr's farewell address, _n._ washington's birthday, celebration abandoned ( ), = =, _n._; burr's toast, . washita lands, burr's plan to settle, = =, _n._, , , , , _n._, , _n._, _n._, , , , , ; water travel, hardships, = =, , = =, _n._ _see also_ steamboat. watkins, john, and burr, = =, ; and wilkinson and adair, _n._ watson, elkanah, on army at valley forge, = =, _n._; on hardships of travel, _n._; on virginia social conditions, _n._; on dissipation, _n._ wayne, anthony, discipline, = =, ; in brandywine campaign, , , ; in philadelphia campaign, ; germantown, ; monmouth campaign, ; stony point, - ; and supplies, _n._; on military smartness, _n._ wayne, c. p., negotiations to publish m.'s biography, = =, - ; agreement, , ; and political situation, ; solicitation of subscriptions, , ; and m.'s delays and prolixity, , , , ; and financial problem, , ; payment of royalty, , , ; and revised edition, . wayne, james m., appointment to supreme court, = =, . webb, foster, and tabby eppes, = =, . webster, daniel, on yazoo claims, = =, ; opposes new western states, = =, _n._; and war of , ; opposes conscription, _n._, _n._; on m., _n._; on washington, ; as practitioner before m., , ; on bank debate, ; counsel in dartmouth college case, , , , ; and story of indian students, _n._; on the trial, , _n._, _n._, _n._, _n._, _n._, , ; argument in case, - ; tribute to dartmouth, - ; fee and portrait, _n._; and success in case, ; counsel in m'culloch _vs._ maryland, appearance, ; argument, ; on the case, ; debt to m. in reply to hayne, _n._, - ; counsel in cohens _vs._ virginia, ; in and on debate on supreme court, , , , _n._, _n._; counsel in osborn _vs._ bank, ; resolution on regulating power to declare state acts void, , ; counsel in gibbons _vs._ ogden, , ; argument, - ; fanciful story on it, _n._; overlooks m.'s earlier decision on question, - ; and american colonization society, ; and recharter of the bank, ; on nullification, m.'s commendation, . webster, ezekiel, on war of , = =, _n._ webster, noah, on jacobin enthusiasm, = =, _n._; on license of the press, ; and biography of washington, = =, _n._ weems, mason l., biography of washington, = =, _n._, _n._; character, ; career, _n._; soliciting agent for m.'s biography of washington, - , ; his orders for books, _n._, _n._ weld, isaac, on hardships of travel, = =, ; on william and mary, ; on lack of comforts, ; on drinking, ; on passion for military titles, _n._; on attacks on washington, = =, _n._ wentworth, john, charter for dartmouth college, = =, . west, and attitude toward union, spanish intrigue, = =, - , , , ; burr turns to, ; m. on internal improvements and ( ), = =, - ; war of and migration, ; _see also_ burr conspiracy; frontier; yazoo lands. west florida, expected war with spain over, = =, , , , , , , _n._ west virginia, m. anticipates formation, = =, . western claims, georgia claim and cession, = =, , , , . western reserve, cession, = =, ; granger's connection, = =, . westmoreland county, vs., slave population ( ), = =, _n._ wharton, colonel, and swartwout and bollmann, = =, . wheaton, joseph, and burr, = =, _n._ wheelock, eleazer, and origin of dartmouth college, = =, - ; and bellamy, . wheelock, john, president of dartmouth college, = =, ; in revolution, _n._; troubles and removal, , ; reëlected under state reorganization, . whiskey insurrection, opposition to federal excise, = =, , ; outbreak, ; democratic societies and, , ; m. and, , ; jefferson's support, ; political effect, . whitaker, nathaniel, and dartmouth college, = =, . white, abraham, in ratification convention, = =, . white, samuel, and pickering impeachment, = =, , _n._ white house, in , = =, . whitehill, robert, in ratification convention, = =, . whitney, eli, cotton gin, = =, . whittington _vs._ polk, = =, . wickham, john, as lawyer, = =, ; mock argument with m., = =, ; ware _vs._ hylton, ; and chase impeachment, = =, ; burr's counsel, at preliminary hearing, , , ; burr and m. at dinner with, - ; on motion to commit burr for treason, , , ; and subpoena to jefferson, ; on preliminary proof of overt act, ; on overt act, - ; counsel in hunter _vs._ fairfax's devisee, = =, ; practitioner before m., _n._ wickliffe, charles a., bill on supreme court, = =, . widgery, william, in ratification convention, = =, , , . wilkins, william, and burr, = =, _n._ wilkinson, james, conway cabal, = =, - ; as spanish agent, = =, , , , _n._, _n._; and burr's plans, proposes mexican invasion, , , , ; and rumors of disunion plans, ; plans to abandon burr, , _n._, ; at louisiana frontier, expected to bring on war, , , ; burr's cipher letter, - , , ; letters to adair and smith, ; and swartwout, , _n._, ; revelation to jefferson, - , , - ; ordered to new orleans, ; pretended terror, ; appeal for money to viceroy, ; and to jefferson, ; reign of terror in new orleans, - ; sends jefferson a version of burr's letter, ; jefferson's message on it, , ; affidavit and version of burr's letter in swartwout case, , - ; house debate on conduct, - ; and burr in mississippi, denounced there, , ; attendance awaited at trial of burr, , , , , , , , ; arrival and conduct, , ; jackson denounces, ; before grand jury, barely escapes indictment, , ; swallows swartwout's insult, ; fear, jefferson bolsters, , ; attachment against, - ; and _chesapeake-leopard_ affair, ; personal effect of testimony, ; daveiss's pamphlet on, . william and mary college, m. at, = =, ; conditions during period of m.'s attendance, - , ; phi beta kappa, ; debating, ; fees from surveys, _n._ williams, ----, counsel for bollmann, = =, . williams, isaac, trial and pardon, = =, , = =, . williams, robert, in debate on repeal of judiciary act, = =, . williamsburg, and frontier minute men, = =, ; "palace," _n._ williamson, ----, loyalist, mobbed, = =, . williamson, charles, and burr, = =, , . wills, of m.'s putative great-grandfather, = =, , ; of m.'s grandfather, ; m.'s, = =, _n._ wilson, james, and ratification in pennsylvania, = =, , ; and in virginia, ; and common-law jurisdiction, = =, - ; and british precedents, _n._; on declaring acts void, _n._, ; and yazoo lands, , ; in federal convention, on obligation of contracts, _n._ wilson _vs._ mason, = =, _n._ wine, m. as judge, = =, . _see also_ drinking. wirt, william, on william and mary, = =, _n._; on frontiersmen, _n._; on m.'s appearance, = =, , ; on m. as lawyer, , , , ; on social contrasts ( ), = =, ; _letters of a british spy_, _n._; in callender trial, - , , ; prosecutes burr, ; dissipation, _n._; on motion to commit burr for treason, ; on subpoena to jefferson, , ; on preliminary proof of overt act, ; on overt act, - , - ; on m. at trial, , ; in trial for misdemeanor, ; on m.'s personality, = =, _n._; as practitioner before m., , _n._; on long arguments, _n._; on pinkney, _n._, _n._; counsel in dartmouth college case, , ; and kent, _n._; counsel in m'culloch _vs._ maryland, ; and in cohens _vs._ virginia, ; on importance of supreme court, _n._; on oakley, ; counsel in gibbons _vs._ ogden, , ; and in brown _vs._ maryland, ; and in cherokee nation _vs._ georgia, , , ; and in worcester _vs._ georgia, . wolcott, alexander, and justiceship, = =, . wolcott, oliver [ ], on giles, = =, _n._ wolcott, oliver [ ], on support of new government ( ), = =, _n._, ; on french revolution, ; on m. and new french mission, ; on m.'s reply to adams's address ( ), ; on m.'s position in congress, , ; underhand opposition to adams, _n._, , _n._; _aurora_ on, ; on m. as secretary of state, , ; on federalist defeat in m.'s district, ; on republican influence over adams, ; and hamilton's attack on adams, _n._; and m. and jefferson-burr contest, ; banquet to, ; on enlargement of federal judiciary, ; appointment as circuit judge, , ; on washington ( ), = =, , , _n._; on jefferson and popularity, _n._; on m.'s biography of washington, . women, education in colonial virginia, = =, _n._, _n._; m.'s attitude, , = =, , . wood, john, attacks on federalists, = =, , ; book suppressed by burr, _n._; character, = =, _n._ woodbridge, dudley, testimony in burr trial, = =, . woodbury, levi, hears dartmouth college case, = =, . woodford, william, battle of great bridge, = =, ; in battle of germantown, . woodward, william h., and dartmouth college case, = =, , _n._, . woodworth, john, opinion on livingston steamboat monopoly, = =, . worcester, samuel a., arrest by georgia, = =, ; pardoned, _n._ _see also_ cherokee indians. worcester, mass., and ratification, = =, . worcester _vs._ georgia. _see_ cherokee indians. workman, james, and burr, = =, ; and wilkinson's reign of terror, . wright, john c., counsel in osborn _vs._ bank, = =, . wright, robert, at chase trial, = =, _n._; on yazoo claims, . wylly, thomas, and yazoo lands act, = =, , . wythe, george, m. attends law lectures, = =, ; as professor, ; as judge, ; candidacy for ratification convention, ; in the convention: chairman, ; appearance, ; and recommendatory amendments, ; and judiciary act of, , = =, ; commonwealth _vs._ caton, . x. y. z. mission, m.'s financial reason for accepting, = =, - , - ; _aurora_ on m.'s appointment, , ; m. in philadelphia awaiting voyage, - ; adams on m.'s fitness, ; m.'s outward voyage, - , ; as turning point in m.'s career, ; task, ; french depredations on neutral trade, - ; pinckney not received as minister, ; adams's address to congress, french demand for withdrawal, , , , , ; wisdom of appointment, ; selection of envoys, gerry, - ; envoys at the hague, gerry's delay, , ; influence of th fructidor, ; washington on expectations, ; journey to paris, ; m.'s pessimistic view of prospects, ; venality of french government, - ; and victims of french depredations, ; talleyrand's opinion of united states, ; talleyrand's position and need of money, ; gerry's arrival, ; talleyrand's informal reception, meeting visualized, , ; talleyrand's measure of the envoys, ; talleyrand and king's conciliatory letter, , ; church's hint, ; paine's interference, ; american instructions, ; origin of name, , ; depredations continue, protests of envoys, , , , - , , , , , ; gerry's opposition to action, ; federalist opinions of gerry, _n._, , , - ; first unofficial agent's proposal of loan and bribe, - ; division of envoys on unofficial negotiations and bribe, , , , - ; second unofficial agent, ; other french demands, ; further urging of loan and bribe, , - , - , , , , , , ; proposed return for instructions, ; and british-american and british-french relations, , , , , , ; and treaty of campo formio, - ; third unofficial agent, ; intrigue and private conferences with gerry, - , , , , , , , ; intimidation, , ; threat of overthrowing federalists, - , , , ; decision against further unofficial negotiations, ; threat to asperse envoys in united states, , , - , ; division on addressing talleyrand directly, ; newspaper calumny, , ; talleyrand's refusal to receive envoys, ; female agent to work on pinckney, ; attempt to use debt to beaumarchais, - ; desire of m. and pinckney to terminate, demand for passports, , , , , , , , ; preparation of american memorial, , ; its importance, ; its contents, - ; necessity of american neutrality, - ; review of genêt's conduct, - ; free ships, free goods, and jay treaty, - ; defense of jay treaty, - ; memorial ignored, ; french plan to retain gerry, , , , , , , , ; meetings with talleyrand, , ; dissension, , ; m.'s assertion of purely american attitude, ; m. on loan as ultimatum, ; talleyrand's reply to memorial, - ; complaint against american newspaper attacks, ; insult to m. and pinckney, , ; american rejoinder, , - ; gerry stays, , , , ; reply on complaint about newspapers, - ; departure of m. and pinckney, ; m.'s farewell to friends, ; pinckney on gerry and m., , ; conditions in united states during, ; french reports in united states, ; arrival of first dispatches, adams's warning to congress, ; republican demand for dispatches, - ; effect of publication, war spirit, republican about face, - , ; m.'s return and reception, - ; jefferson's call on m., , ; origin of "millions for defense" slogan, ; m.'s addresses on, , , , - ; adams's statement of policy, ; effect on federalist party, - , ; jefferson's attempt to undo effect, - , ; effect of dispatches in europe, ; talleyrand's demand on gerry for the x. y. z. names, , ; m.'s fear of gerry's stay, ; adams and m.'s journal, ; gerry's defense, m. and question of rejoinder, - ; giles's sneer and bayard's answer ( ), = =, , . yates, joseph c., on livingston steamboat monopoly, = =, . yazoo lands, rutledge on ( ), = =, ; and chase impeachment, ; sale act ( ), graft, - ; provisions, , ; popular denunciation of act, , - ; and indian titles, , , , ; earlier grant, ; character of second companies, ; and invention of cotton gin, , ; matter before first congresses, , , ; repeal of grant, theatricalism, - ; hamilton's opinion on validity of titles, , ; resale, "innocent purchasers" and property rights, , - , , - , ; national interest, pamphlets, - ; and cession of georgia's western claim, ; report of federal commission, ; claim before congress, randolph's opposition, - , - ; memorial of new england mississippi company, ; popular support of randolph, ; obstacles to judicial inquiry, ; friendly suit, fletcher _vs._ peck before circuit court, , ; case before supreme court, first hearing, ; question of collusion, johnson's separate opinion, , , ; second hearing, ; m.'s opinion, - ; legality of grant, effect of corruption, , , ; unconstitutionality of repeal, impairment of obligation of contracts, , ; attitude of administration, ; importance of opinion, - , ; congressional denunciation of opinion, - ; popular support of denunciation, ; local influences on settlement, ; settlement, . york, me., and ratification, = =, . young, daniel, and disestablishment in new hampshire, = =, _n._ zubly, john j., denounced by chase, = =, _n._ * * * * * transcriber's notes: . passages in italics are surrounded by _underscores_. . within index the bold numbers from original are enclosed within =equals= sign indicating the volume for that particular index entry. . obvious errors in spelling and punctuation have been corrected. . footnotes have been renumbered and moved from the page end to the end of their respective chapters. . images have been moved from the middle of a paragraph to the closest paragraph break. . certain words use an oe ligature in the original. . carat character (^) followed by a single letter or a set of letters in curly brackets is indicative of subscript in the original book. available by internet archive (https://archive.org) note: project gutenberg also has an html version of this file which includes the original illustrations. see -h.htm or -h.zip: (http://www.gutenberg.org/files/ / -h/ -h.htm) or (http://www.gutenberg.org/files/ / -h.zip) images of the original pages are available through internet archive. see https://archive.org/details/housewithsixtycl chil [illustration: the house with sixty closets by frank samuel child with illustrations by j. randolph brown] [illustration: the children take possession of the house. page .] the house with sixty closets a christmas story for young folks and old children by frank samuel child author of "an old new england town" "the colonial parson of new england" "a colonial witch" "a puritan wooing" etc. with illustrations by j. randolph brown boston lee and shepard publishers copyright, , by lee and shepard all rights reserved the house with sixty closets to frank and bess and arthur and theodora and grace and ruth and amy and the "little judge" and all their merry friends all about it a page house, people, things b the house that the judge built c the people who live in the house that the judge built d the things that happened to the people who live in the house that the judge built i portraits walk and talk ii closets talk and walk iii the procession of goat, dog, cat, bicycles, portraits, closets, ruth, and the "little judge" iv the party with supper for seventeen, and toasts with a toasting-fork v stockings filled with music, rainbows, sense, backbone, sunsets, impulses, gold spoon, ideals, sunshine, star, mantle, flowers,--and the like queer stuff e happy day list of illustrations. page the children taking possession of the house _frontispiece._ initial o mrs. "judge" planning the closets mrs. "judge's" living-room candlestick and bible initial i nailing flag to chimney the children taking a ride initial i ruth sees figures in the fire stepping out of the frames susie and little judge entering the clock initial t playing tag champaign complaining the closets talk and walk the judge sitting on the cog-wheel initial i billy eating funeral cloth and wreath the procession starts billy, satan, and turk taking a ride mrs. "judge" and man in moon returning from the church initial w the walk around there was the greatest confusion initial r ruth and satan the room was a blaze of glory the room studded with twinkling, radiant stars a house, people, things _i will first describe the house._ _then i will tell something about the people that live in it._ _after that i will speak of the very strange things which happened there the night before christmas._ b the house that the judge built b. the house that the judge built. once upon a time there lived a good judge in an old new england town. people said the reason that he was so good was because his father was a minister. but he may have gotten his goodness from his mother. i don't know. or he may have had it from his uncle who took him into his family and sent him to college. for the minister was poor, and like many of his brethren he had a big family; so his brother who was a rich lawyer and a statesman helped his nephew get his education. now, this son of a minister and nephew of a great man studied law and became a judge. he was liked by every one who knew him. people felt that he was an honest, noble man who had mastered all the law books, and showed more common sense than any other person in the state. so they made him judge. this man who started poor and had to make his own way in the world earned a great deal of money. people came to him from all parts of the country, and sought his advice. they put into his hands the most important law cases. only sometimes he would not have anything to do with the cases that he was asked to manage because he thought them wrong. as years went by he saved his money, and the time came when he was ready to build a house. the judge had become the most honored and the best known man in the state. he had many friends among the great people of the land. he enjoyed company, and was a famous host. so it seemed well to him and his wife that they build a house which should be large enough to hold their friends, and fine enough to satisfy the taste of the society in which they moved. the judge was not moved by pride or a wish to make a show. he wished to do the right thing. everybody said that he ought to have the largest and the finest house in town. he was not only a lawyer and rich, but he was deacon in the church and the leading man in society. he was likewise a great scholar; and many people said that he was the most eloquent speaker of his state. such a person must live in a generous way. so the judge built this house. now, when it came to drawing plans the wife had a good deal to say about it; for the house was to be her home just as much as his; and he always tried to do what he knew was for the pleasure of his wife. "i think," said she when they began to talk about building, "that it should have a great many closets." had you been a friend of mrs. "judge" you would have seen why she said this. she was not only a woman who liked to have all her friends come to visit her, but she was also very liberal and kind. she was always doing some nice thing for people, and always giving presents. she was able to do this because she had the things to give away. i know men and women who would make a great many presents if they had the money to buy them--at least they say that they would. such people like to tell how they would act if they had all the money that some neighbor has saved. they are great on giving away things that do not belong to them. now, the judge's wife was the best giver in town; and she gave to her friends, and the poor, and everybody that was in need, all sorts of things. but in order to do this she must buy the gifts that she scattered so freely; and when she bought things she wanted a place to keep them until the time came for her to give them away. this was why she spoke to the judge about the closets. [illustration] "well, my dear," said the judge (he was always kind and polite), "you may have just as many closets as you wish." so she began her plans of the house by drawing the closets. i don't know exactly how she managed to arrange it on paper. very likely she said to herself, "i shall want thirty closets." and then she would divide the number into four parts and say, "let me see, i suppose that four will be enough for the cellar. then i shall need ten on the first floor, and twelve on the second floor, and six in the attic. that makes--why, that makes thirty-two. dear me! i wonder if that will be enough?" and as she thinks over the various uses to which she will put her closets, and the many things she will store in them, she says, on the next day, "well, i believe that i must have five or six more closets." so she starts her drawing by marking down thirty-eight closets. after she has settled it that the main floor shall have thirteen of them, she puts upon the paper some dots showing the size of each little room; then she draws the other rooms about them, and so she gets one story arranged. but no sooner does she begin the plans for the next floor, than she thinks of one or two more closets which she needs for the first, and so goes back to her work of yesterday, and does it all over again, making several changes. and so very likely the weeks are spent in making paper closets, and drawing the halls and parlors and bedrooms and other rooms about them, until she puts her plans by the side of the judge's plans; then they get an architect; and then she asks for four more closets, which makes forty-four. after a time the men begin to build; and she sends for the builder, and tells him of course that she finds she will certainly need five more closets,--one in the cellar, two on the first story, and three on the second. he is a pleasant man; and the changes are made. but ere the house is half built other needs appear, and mrs. "judge" insists upon three new closets, which make fifty-two. and without doubt on the very week that the carpenters leave the handsome mansion, she asks them for several changes and three closets more. and will you believe it, they move into the new house, get nicely settled, and everything running in good order, when the generous housewife finds that the carpenter must come, for she still wishes five new closets, which added to the others make sixty. and so you have the house with sixty closets. it seems to me that i have made it clear how there came to be so many of these curious rooms and spaces in the judge's house. at least you know all that i know about it; and i do not believe that ever another house was built in such a way. but i must tell you how the house was divided. a plan of each story will be the best means of fixing this in the mind; and then you can turn back to it whenever you lose your way in the house, and wish to get what are called "your bearings." we must begin at the bottom and work toward the top. the cellar was really three cellars,--a big one, a fair-sized one, and the wine cellar. there was a small closet in this deep, dark place where they kept certain kinds of liquor. the main cellar was divided lengthwise through the middle, and there were two closets for provisions on each side. the main floor had twenty-seven closets. for my own part, i think that woman is a remarkable person who can invent and arrange such a number of little nooks and rooms. but if this is a mark of genius, what shall we say when it comes to keeping track of all the closets and their contents? why, i should be obliged to carry a plan of the whole house with me, and every few minutes i should pull it out and study it. the judge's wife was a most wonderful woman. she built her closets, and then she filled them, and then she remembered all about them and their contents. here is the plan of the first floor. a hall through the middle. on the left as you enter is the library. there was one closet connected with this room, and a door opened into it from the northeast corner. back of the library was the dining-room. it had three closets connected with it; doors leading to them from three corners of the room. to the left of the dining-room you passed into a side entry. three doors opened into three large closets. the kitchen adjoined the dining-room. there was one closet in it, and two closets out of it to the right, and these two latter had one closet and two closets respectively. [illustration] on the right of the hall was the parlor. it had one closet. a large window reaching to the floor gave entrance to this room near the northeast corner. back of the parlor was a long, dark closet which made a passage-way from the hall to the schoolroom. back of this closet was a first-floor chamber with three closets. the third of these closets opened into the chamber from the north. it was formerly mrs. "judge's" store-room. another large closet was connected with it, and these two large closets contained two small closets. to the east of this chamber was the schoolroom (formerly the judge's library). this room had two closets in it, and two closets out of it. the room to the north of the schoolroom was the annex to the judge's library, and it held his books bequeathed to the minister. it also held two closets. and now my first story is ended. the short hall on the second floor opens at the rear into a long, narrow hall. there are five chambers in this part of the house. the front room on the right as you look toward the street is the "study," and it has two closets, one on each side of the big chimney. the two chambers back and to the left as you face the chimney are without a single closet; but the lack is made up when you pass to the other side of the house. the front chamber has two closets, one on each side of the chimney. as you pass into the one on the right (you face the chimney, remember) a door opens to the right and leads you into another large closet with a window in it. going across this closet to the right another door opens into a big, dark closet; turning to the street and stepping back three paces you open a door into another closet; passing into this one (there is a small window in it) you open a door into the linen closet. withdrawing from this series of small rooms, you get into the betsey-bartram room, and there you find on the south side two doors leading into two large closets. north of this room is another bedroom. one closet lies in the southeast corner, and one opens to you from the west side of the room. the thirteenth closet on this floor is at the end of the back hall, and the fourteenth is by the side of the chimney in the room above the down-stairs chamber. the attic was one big room with five closets scattered around the chimneys. they hung hams in the larger one. it was a fine place to smoke meat. there was always a greasy, smothered flavor to the air in that place. now, if you have kept track of the closets you will see that we number only fifty-one. there had been three neat, retired little closets under the stairs in the first-floor hall. when the hall was enlarged these poor things were taken out. it was on this occasion that samuel said: "see how rich we are; for we have closets to burn." and still there are six closets missing. well, the closet with the skeleton in it is a mystery, and i do not like to speak of it. three closets were found one day carefully tucked away in a corner of the attic. the other two missing ones have simply grown up and become big rooms with windows in them. they put on a good deal of style, and look down upon the other closets. what a lovely time the judge's wife had in furnishing her new home. i have been reading the bills, yellow-stained and time-worn. she had a taste for handsome things. as the house was a colonial building, the grandest in that part of the country, she tried to get furniture that matched. there were mahogany chairs and tables, sofas and bedsteads, cabinets and stands. she paid $ in gold for her gilt-framed looking-glass, which stood between the front windows in the parlor, and $ for her grecian sofa with cushions. there were twelve fancy-chairs and two arm-chairs. her rocker cost $ . then she had another little work-table, for which they paid $ . . her parlor carpet was made in england. the judge had it made to order; so you may believe it was uncommonly fine. the curtains were yellow damask, lined with chintz. during the summer these curtains were stored away on long shelves in one of the closets, and lace curtains hung in their places. every large room in the house had a fireplace, and the supply of andirons was enormous. some of them cost $ and $ . then there were venetian blinds in the parlor; and on the centre table stood an astral bronzed lamp worth $ , and on the mantle, high silver candlesticks. a plated pair cost them $ , and the snuffers and tray $ more. there were the best brussels carpets, the most fashionable china and silver, the richest linen for the table,--a vast amount of things needed to make a house pleasant and comfortable. [illustration] c. the people who live in the house that the judge built. c. the people who live in the house that the judge built. it was on this wise that the present family came to live in the parsonage. the church had been without a pastor for several months, and the people were tired of hearing tom, dick, and harry in the pulpit. but what was to be done? they had found no man that suited them. one minister was too young, and another too old. the first candidate had a very long neck, a sort of crane neck, and it made some of the ladies nervous. the last candidate was fat, and everybody said he must be lazy. several were so anxious to come that the congregation turned against them. there was always some reason why each man was not liked. so it began to look as if they might never get another minister. the society finally asked the ladies their views upon the subject. it was one afternoon when the dorcas daughters were sewing for the poor. the president of the little band had been reading a missionary letter. "well," she said, "i have heard so much about filling the pulpit that i am sick of it. i think it's about time that we filled the parsonage. just see what kind of ministers we have had for the last thirty years. two bachelors, and one married man without a chick or a child. i say that it's time for us to call a man to fill the parsonage." "why, that's what i think!" remarked one of the mothers present. "it is a shame to have that great house given over to the rats and mice. and i know that not a minister has been in it for all these years that used more'n half or two-thirds of the room. but, dear me, it would take a pretty big family to fill the parsonage! let me see; there are twenty-seven rooms and sixty closets, aren't there?" "so they say," replied the president. "i never counted them. but that would just suit some folks." "where is that letter that you read us at the last meeting?" inquired one of the sisters. "how many children did that man say he had? i remember that we never sent another box like it to a home missionary in all the history of this church." "i've got the letter right here in my hand," said the president, "and i've had that man in mind for a week. he's got fifteen children,--eight of his own, and seven of his deceased sister. i shouldn't wonder if he was the very one we want." one of the younger women nodded. she was thinking of playmates for her boys and girls. "and then if they overflowed the house," continued the president, "there is the little building in the yard. they might start a cottage system. you know that is the way they do in schools these days. divide up the young folks, and set them in small companies. the minister might do it; and if the family expanded we might build two or three extra cottages." "now, mrs. president," said one of the ladies, "i fear you are making fun. but i think that letter from the missionary with fifteen children in the family was the best we ever had. a man that could write such a letter must be very much of a man." "he is," replied the president. "i have looked him up in the year book, and i have written to the secretary of the missionary society. he's a very good man. nobody has done better work in that frontier country." so the ladies said that they would ask the church to call this parson with the big family. when the meeting was held and everybody was talking, one gentleman arose, and told the people that the ladies had a candidate. his name being proposed, the president of the dorcas society explained how she felt, that they ought to have a man to fill the parsonage, and this man whom they named was the one to do it; therefore the meeting voted unanimously to call him. "i think we had better charter a train to bring them from the west," said one of the deacons. but it was finally decided to engage a car; so everything was arranged, and in four weeks they came. when the train stopped at the station, the church committee was on hand with three carryalls. it reminded one of an orphanage, or a company of fresh-air children. but a hearty welcome was given; they were hurried into the carriages, and soon the whole family was in the parsonage. a nice dinner had been prepared by the ladies of the parish. after the travellers had washed and made some slight changes, they all sat down to the feast. it was a happy thing that the church and the judge furnished the parsonage. this poor, large-hearted missionary brought nothing with him but books and children; his library was really a very fine one, and it had filled the small house in the west. his own family of children had been increased by the seven orphans left when his sister and her husband died. there was nothing for him to do but adopt them; so they had been packed into the little home until one was reminded of a box of sardines. but this sort of kindness was like the good man. he was ready to share the last crust with any one who needed it. "why, what a big house it is!" exclaimed grace. "just see; i guess we could put the whole of our western house right here in the parlor." and i think they could if they had only brought it along with them. when dinner was over the children scattered all through the mansion and the grounds. what a delightful sense of freedom and importance they had. could it be possible that all these things belonged to them? were the ten acres of lawn, garden, orchard, field, and pasture really for their use and pleasure? as parents and children wandered through the big rooms, and peered into the sixty closets, and looked out of the numerous windows, it seemed to them like a dream. and yet the dreamy sensation soon passed; for the parson and his wife, happening to look out of a front window, were struck with the expression of alarm, amusement, or interest shown by several people going along the street. it was caused by the way in which the family was showing its presence and possession. there were three children on the front piazza standing in a row gazing at the sea; four of the younger ones were climbing in and out of the windows on the second floor, running along the tin roof of the piazza; two boys had already climbed a tree looking for birds' nests; three children had hurried through the attic to the roof, and leaned against the big chimneys that towered over the house. with curious interest they were taking a general survey of the town and country, quite unconscious that their rashness attracted any attention. the other youngsters were having a frolic in the yard, walking along the top of the picket-fence, jumping from one gate-post to another, shouting with healthful lungs, and making the very welkin ring. had a pack of wild indians swooped down upon the house, they could not have made themselves more evident, or excited any greater concern in town. it was clear that the minister who was called to fill the parsonage answered the purpose. he filled it; and the contents were overflowing from doors and windows on to piazzas and roofs, or into yard and trees and street. what a waking up for the rats and mice it was! the mere racket and clatter were enough to drive them out of their holes. but what a shaking up for the old town! the house stood on the main street. it was an object of historic veneration. everybody knew all about it, and had a sort of watch-care over it. anything that went on in that house belonged to the whole neighborhood. so that it was not long before all the people were talking about the new arrivals. men, women, and children felt an impulse to walk or ride by the parsonage on that eventful day. and it was a startling sight; for the minister's family seemed to think that the house really belonged to them, and they were to enjoy it just the way they pleased. this running all through the many rooms, and popping out of the many windows upon the piazza, and climbing up to the roof, and playing tag in the yard, and hunting for birds' nests, and walking on the tops of the pickets along the fence, was their way of enjoying the place. [illustration] "let's nail the flag to the chimney," shouted harry, the third boy. they had carried the flag in hand all through their journey from the west. "yes," shouted the other boys, who were wildly patriotic. "come on! come on!" so they all came on except the youngest; and she finally came in the arms of her father, who followed the mother, who followed the children, to see what was doing in the attic or on the roof. and just at this time the most important man in the church and town drove by with his family. do you wonder that this important man and his family gazed with surprise and alarm at the sight? there on the roof of the house was the whole family. henry was nailing the flag to the tallest chimney. but when the children saw this kind man pass along the street (he was one of the committee that met them at the station, and it was his horses that had carried them to the parsonage), they waved their hands, and shook their handkerchiefs, and shouted "hurrah! hurrah!" with such spirit that the gentleman must needs take off his hat, smile and bow, and turn to his family with some pleasing remark. there was no doubt in his mind or in the mind of the passer-by that the town was captured. the west had made a sudden onset; and the standard of victory now floated from the chimney of the judge's mansion. the only thing for the natives to do was to submit and make the best of the situation. as i said, the good people of the parish furnished the parsonage. the carpets were down, and the chairs, tables, sofas, bedsteads, stands, book-cases, and other things, were put in their places. all the minister's wife had to do was to unpack her trunks, and divide up their contents among the closets. all the minister had to do was to unpack his boxes, and arrange his books in the study. so they were settled in a trice. here is the picture of the children. you must know them in order to understand what happened in the house. elizabeth was the oldest. she must have been seventeen or eighteen. she was ready for college. it was hard for the mother to get along without her, since she had brought up all the younger ones, and given her mother a chance to go round with her father in his work. elizabeth was very mature, but she had all the frankness and cordiality of a typical westerner. she seemed almost too free and easy in her manners for the slow east. but you couldn't help liking her. a little western gush does good in the town. [illustration] samuel came next. he knew everything. he was ready for college too. he was slow, and not always just as agreeable as one would like to have him. it has been said that somebody stepped on his toes when he was a very little child, and that he still has spells of being angry about it. samuel was a mechanic. he kept things in order,--machines, carts, clocks, and like objects,--when he hadn't any girls to tease; for he was an awful tease, and so was liked in a general way by all of them. his manner toward the younger members of the family was rather severe and overbearing. but what would you expect from a big boy who knows so much, and has such a host of children to live with? helen was the third one. she was literary, and gave a great deal of time to books. she hated to darn stockings above all things, and would often read a story to the children, or write one for them, if she could get somebody to do her darning for her. i think she will make an author. the family hadn't been in the house one day before she said that the closets must be named. her mother or the children would never be able to keep track of them, unless they were reduced to a system, and properly numbered like rooms in a hotel, or labelled like drugs in a store. henry and miriam were twins. they were just about as unlike as you could make them,--one light and the other dark; the first lean and the second fat; he quick and she slow. and so we might go through a long list of things, and find that one was opposite to the other. for this reason they got along well together and were very happy. then came cousin george, who was fond of music and could sing like a lark; and theodora, who was born to be a lady, and always took the part of mrs. rothschild or mrs. astor in their plays; and cousin herbert, who will be a doctor, and who was so ingenious about getting into mischief that i think he will be able to invent enough bad doses to cure the very worst sicknesses; and cousin ethel, the pink of propriety, who never got a spot on her dress, and always said, "will you please give me this or that?" or "thank you," when she took anything; and cousin grace, the demure and quiet puss who had a wonderful faculty for stirring up the whole family, and yet freeing herself from trouble; and cousin susie, who is always sweet and good-tempered, and loves everybody; and cousin william, the precocious (i mean very smart), who will be president of the united states; and cousin nathaniel, who was said by his brothers and sisters and cousins to be "just too cute for anything," flying hither and thither like a humming-bird, never two minutes in one place except when his aunt got him into his nest at night. how many does that make? let me count them up. have i mentioned them all but ruth? ruth was seven years old. she could ask more questions in five minutes than any lawyer in cross-examining witnesses. and when she was tired of asking questions she would tease for more things in a second five minutes than any twenty children rolled into one. and not only would she ask the same question seventeen times at once, or tease for the same thing thirteen times without stopping, but she did it in just the same unvarying, shrill tone of voice; so that it was like the monotonous rasping of a saw, and had a tendency to drive a sensitive person out of his head. how many times did the older members of the family run from her as though she had a contagious disease, so that they might get relief from that endless asking and teasing? and yet she had many good traits, and was certainly very bright. if there had been some comfortable way of putting a muzzle upon talkative and tedious children, her parents would probably have done it; but they simply used all the powers of restraint that they had and let it go at that. ruth was evidently cut out for a poet or a woman's rights speaker; for she was all the time getting up rhymes, or talking in a high key and impulsive way to such members of the family as would listen to her. when the baby came everybody said that he must be called "the little judge," in honor of the good man who gave the house to the church for the minister. no sooner was the family really settled than the children began to ask about this famous judge. they had never lived in an old, historic house before, and they were interested. they knew how the judge and his wife looked, for their portraits hung in the east parlor. what fine old people they must have been! if those oil paintings did them justice they were about as nice-looking as anybody that you see preserved in oil in the great galleries of the world. whenever the children stood before the pictures, they asked questions: who was the judge? what did he do? how much of a family did he have? did he like children? when did he die? who attended the funeral? where was he buried? what became of his things? and a hundred other questions. so the minister began to read about the judge and his work. and the more he read, the more he admired and loved. the enthusiasm which the minister showed in his attempts to learn all he could about the generous giver of the parsonage excited the curiosity of the children to such an extent that they begged their father and uncle to write a book about him. helen herself talked about doing something of the kind. "i've found out more things in the life of the judge," the minister would say; and then all the children gathered around him just after supper, as the fire burned gayly on the hearth in his study, and he would tell them some fresh incident, and add a few lines to his pen portrait of the man. so the months chased each other; and the judge and his wife made not only the most common topic of conversation, but they became as real to the young people in the parsonage as the boys and girls they met on the street. i suppose it was because they thought and talked so much about them that the strange things which i am to relate happened (or didn't happen) in the house. they had not lived many weeks in the house before they got into all sorts of trouble about the closets. they kept losing something, or losing themselves, or losing the closets. "we'll number them," suggested herbert. "no; let's name them," cried william. they had all met to talk the matter over; so it was decided to do both. when names run out they would fall back on numbers. "i feel like adam when he named all the cattle and the fowls and the beasts," exclaimed helen. "we'll hang a plan of the house on each floor, and then we can refer to it without running up-and down-stairs." this was samuel's remark. he was always for saving steps. so names were suggested, plans were drawn, every closet was given its dues, and the atmosphere was thick with champagne, darkest africa, turpentine, leghorn, daisy, pansy, violet, rose, panama, china, greece, dublin, clementine, serpentine, argentine, morocco, and other appropriate names. d. the things that happened to the people who live in the house that the judge built. i. portraits walk and talk. i. portraits walk and talk. it was christmas eve. excitement had reached fever heat. the children knew nothing about christmas in the east; and their western festivals had always been simple, for there was little money to use in buying gifts. but this year friends had remembered them, and they had also earned several dollars by various kinds of work; so that they were sure of many nice things. had they not been buying presents for each other these ten days? and was not every closet in the house made the hiding-place for some treasure? the nervous strain on the parents was great. such confusion and anxiety passed words. was it possible ever to get the house and the family settled down to plain, every-day living again? it happened that the children had all met in the east parlor. this was the room where the pictures of the judge and his wife adorned the wall. the two portraits hung on the right of the fireplace, you remember, just over the piano. a lamp was giving a faint light on the marble centre-table, and a cheerful wood fire was burning on the hearth. in front of the piano was the music stool. the children were all talking. the hum and buzz of their many voices filled the room. one said, "i wonder if santa claus will bring me a doll;" and another said, "there is no such person as santa claus;" and a third said, "i want a new sled;" and a fourth said, "father promised me a book about birds;" and so the talk continued. but ruth for once kept still. she was worn out with excitement. as she flung herself into a big arm-chair, she turned her head towards the fire, and began to see all sorts of funny creatures dancing in and out among the coals. ruth was a poet, you remember, gifted with a wonderful imagination; and she could see more strange things, and tell more wild stories, than any other child in the family; and that is saying a great deal, for they all had a way of telling about things which they had heard and seen that constantly reminded their neighbors of western largeness and exaggeration. [illustration] as ruth watched the queer creatures playing in the fire her eyes grew heavy; and then she turned her head away for a moment, and her eyes became fixed upon the pictures of the judge and his wife. did her head droop to one side, and did it fall softly upon the cushion against the arm, or did her eyes suddenly open wide with surprise, and did she gaze with startled look upon a strange scene before her? for both the judge and his wife seemed to be moving; and they looked so natural and pleasant when they smiled and bowed, that ruth said to herself, "why, they must be alive." and the judge reached out his hand from the canvas which held him, and took the hand of his wife, who had responded to his motion, and said, "my dear, wouldn't you like to step down and out for a little while?" [illustration] "yes, thank you," she replied; "i think it would rest me." and then he laid down the pen, which he holds in the picture, and stepped lightly upon the piano, still keeping her hand in his; and then he helped her down upon the piano, and then he stepped down to the music stool, and finally on the floor, and she followed. this was all done with the grace and dignity that marked the usual movements both of the judge and his wife. and it seemed the most natural thing in the world for them to step down and out. ruth sprang toward them on the instant that they stood upon the floor. she rubbed her eyes to make sure that she was not dreaming; and then as she saw them really before her, looking for all the world like natural folks, she greeted them with delight. "why, how do you do?" she exclaimed. "i always thought you looked as if you would like to talk. that, i suppose, is why people say that your pictures are a 'speaking likeness.' but i never thought you'd get out of the pictures. how did you do it?" but the judge and his wife were too much absorbed in the scene before them to reply immediately. the old room had changed since their day; they were noting the changes. and then this roomful of children took them by surprise. "my dear," said the judge to his wife, "this is delightful." "yes," continued ruth, "they all belong to us. i heard the president of the dorcas society say that when the church called this minister they expected him to fill the parsonage just as much as the pulpit. and we did it." "yes, this is delightful," repeated the judge. "how many are there?" he said this to his wife, but ruth answered. "oh! there are only fifteen of us when we are by ourselves. there are a good many more when the neighbors' children come in; and then don't we have grand times!" "it almost takes my breath away." mrs. "judge" was speaking to her husband. "my dear, have you my fan in your pocket?" and the judge felt in his pocket, but he didn't find any fan. "why, it's christmas! you don't want a fan," said ruth, who was bound to take part in the conversation, and play the hostess on this wonderful occasion. and then the judge and his wife stood stock-still, and gazed with increasing pleasure and interest upon the scene. their descent from the picture had been so noiseless and unexpected that ruth was the only one to observe it. but when this keen, talkative sister began to question the guests, the other children turned their heads, and they beheld the curious sight. there stood the judge and his wife exactly as they appeared in the portraits. only they had their legs on them, and the pictures didn't. but the children noticed even the smallest details of dress, and they were the very originals of the portraits. suddenly the whole company stood up. "why, it's just like a reception or a wedding," said ruth. "i think they're all waiting to be introduced." and the children advanced one after another, or ruth led the judge and his wife to different parts of the room, and each brother and sister and cousin was properly presented. "how did you get out?" inquired ruth a second time. everybody in the room was now standing, and all eyes were looking for the next move in this strange parlor drama. "we just stepped out," replied the judge, who seemed prepared at length to talk with ruth or the other children. "but where did you keep your legs all the time?" when ethel asked this question mrs. "judge" blushed. elizabeth, the eldest daughter, pushed her way forward, and said, "s-s-s-s-h!" and samuel said, with a nudge of the arm, "keep still, can't you?" but you might as well tell the steaming teakettle to stop boiling as it sits upon a lively fire. "we are very glad to see you," interrupted helen. she was a most hospitable girl, and she had read a great deal of history; although henry knew more history than she did, and he had read everything about the judge that he could lay his hands on. "we are very glad to see you, and should like to ask about the 'hartford convention,'" said henry. "he's been talking about it for a month," continued ruth. "i wish you'd tell him all about it, and then maybe he'd keep still. i don't care anything about it, neither do the other children. but henry thinks he's very smart in such things ever since he got a prize in history." "did you say these were all the children?" it was mrs. "judge" that now spoke. and as she made the inquiry susie ran out of the parlor, and disappeared in the gloom of the hall. "why, we forgot all about the baby!" exclaimed ruth. "he's up-stairs asleep, i guess. dear me, you must see the baby. he's the cutest little thing you ever saw." "yes, we should like to see him, of course. we both like babies, good babies." [illustration] "babies that don't cry i suppose you mean," said ruth. "well, he doesn't cry much,--only when he's hungry, or a pin sticks into him, or he gets mad, or somebody lets him fall, or hits his head against the door or a chair." here ruth paused for breath. then she exclaimed, "why, of course, you must see the baby! why, he is named for you!" this was said to the judge with greatest excitement. and just as ruth was saying it everybody turned toward the door, and there stood little susie hugging the baby to her breast, his nightdress dragging on the floor, her short arms barely reaching around his plump body; both baby and susie having their faces wreathed in smiles. staggering under the burden this youngest sister pressed through the company with her precious armful; and as the judge saw her approach he stepped forward, bent down above her, and took the little fellow into his arms, where he settled with a most contented and happy expression. it was a very pretty sight,--this stately old gentleman holding a beautiful baby on one arm, and reaching over to the lovely, dignified wife by his side with the other arm; for she had taken hold of his hand again after he had fixed the baby comfortably on his arm, and ruth had stationed herself close by the judge's wife on the other side, and taken possession of the lady's free hand. "and this is the baby, is it?" inquired mrs. "judge." "what a dear little boy he is! and what did you say you called him?" for the lady was either deaf or absorbed so that she did not hear all that ruth had said about the baby's name. "why, we call him after your husband. didn't you hear me say so? he is the "little judge." just see how he clings to his namesake. is he the judge's namesake or the judge his namesake? i don't know which is which, only it's something about namesake, and he's named for the judge." this latter talk on the part of ruth was quite as much to herself as to the visitors. and all the time the judge was gazing down into the infant's face with earnest, wistful look, seeming almost to forget that he was once more standing in the old east parlor. yes, for a moment he had really forgotten where he did stand; for he was thinking of the many years ago when two other baby boys had been placed in his arms, and with what hope and tenderness he had handled the small, helpless pieces of humanity. "don't you like the name?" interrupted ruth. "we thought it would please you. what makes you look so solemn? oh, i know!" now, ruth did not intend to be cruel. she was simply thoughtless like many other children. "you had a baby boy once, didn't you? two of 'em, didn't you?" and then she saw that mrs. "judge" seemed to feel bad too, and that she let go the judge's hand for a moment, and dashed away some tears from her eyes. "i'm sorry if i've hurt your feelings," said ruth. "i didn't mean to. i was just thinking about your two baby boys. they would have been awful old if they had lived till now, wouldn't they? and we never should have lived in this house if they had lived, would we?" a hush had fallen on the company. neither the judge nor his wife made any reply. they were lost in thought, while the children watched them with breathless interest. "we didn't dare give him your full name," continued ruth. "that's what dr. blank did to one of his baby boys, and it died. mother was afraid if we called our baby after you, with the three long names, that it might kill him, so she said; so we dropped the middle one, and i think it much better, don't you?" "dear little boy," said the judge affectionately, as he looked down into his face again. "dear little boy." and then the judge bent down and kissed him, and the baby beamed with delight. it was almost like a baptism in church. "i thought maybe you were going to pray over him. that's the way father does, you know." but the judge didn't seem to hear. "my dear," he said, turning to his wife and holding the baby toward her. she knew what he meant, for she likewise bent down over the little fellow and printed another kiss upon his sweet, upturned, dimpled face, and then another, and a third, while the judge stood looking on with happy indulgence; and all the children noted every motion in this singular drama. "what did your boys die of?" asked ruth, who did not wish to lose any time, since she had so many questions to ask, and she feared that her visitors might not stay as long as she wished them. "ruth!" exclaimed samuel, who had drawn near the young inquisitor, and felt it was time to stop her; "aren't you ashamed of yourself?" he said this in a low tone, thinking that the judge and his wife might not hear. they were watching the baby with such eagerness that they had almost forgotten the rest of the company. "i think," remarked mrs. "judge," as she lifted her head from the baby and glanced around the room, "that it is very pleasant in the old house." "oh, yes; we think so too." it was ruth again speaking. the other members of the family had little chance to say anything. "can't get in a word edgewise," whispered henry to helen. "what a perfect nuisance ruth is!" "wouldn't you like to go over the house?" of course it was ruth who asked the question. she was always taking people over the house. it might be monday morning when everything was in dire confusion, and all the younger children still in bed, or it might be early evening after the baby and susie had been playing in crib and bed, and things were assuming their wonted appearance of disorder. if the notion took her she was always ready to seize a caller by the hand, and lead him from cellar to garret. "i think i would like to look around a little," replied the lady. "i am wondering how many closets you have now in the house." "oh, there is an awful lot!" exclaimed ruth. "we have sixty," observed elizabeth, who liked to be precise. "that's right, that's right," continued mrs. "judge." "i had that number put in. i was afraid you might have given away some of them." when she said this the children looked rather queer. who ever heard of giving away closets? one might think they were flowers, or eggs, or peaches. "you used to give away a great deal, didn't you?" exclaimed ruth. "but i don't see how you could give away closets." and now the whole company started on a tour of sight-seeing in the old house. samuel and elizabeth naturally took the lead, being the oldest and quite the lady and gentleman. the judge with the baby on one arm and his wife leaning on the other followed. ruth still clung to the right hand of mrs. "judge." then the remaining children came in a dense crowd just behind them. "the parlor looks much as it did when we left it, except the furniture," said the lady. "now let us see if they have kept the other rooms as well." they passed next into the hall. "dear me! what is this?" exclaimed the judge. "where are we?" for it was not the old hall at all. that had been rather short and small. this was long, reaching through the house. "why, what has become of my bedroom?" inquired the lady. "they have made it into this hall. and where are all the nice little closets under the stairs? you certainly have given them away. oh, dear! oh, dear! i'm so sorry." "i guess you're tired," said ruth. "it makes you nervous to walk much, doesn't it? why, yes, i know, because they say you never went up-stairs for ever so many years. oh, i know what we'll do! you can ride." all this time mrs. "judge" was looking about her in a dazed way, quite at sea in respect to her surroundings. for the hall had been completely changed until it appeared about as different as different could be. and the good lady was really shocked. "do you see those things under the stairs? they are our bicycles." and the judge and his wife gazed with perplexed faces in the direction indicated. there was a whole row of them. seven, altogether,--full-grown, half-grown, or any size you might wish. it was like a carriage shop. "i think you might ride one all through the house down-stairs," said ruth to the lady guest. "then you wouldn't have to walk." and as the suggestion was made, ruth's eyes flashed, and her cheeks grew flushed with excitement. what fun it would be to push the good woman on a bicycle from room to room, and show her the present arrangements of the beloved house. but mrs. "judge" was horrified. she clung very closely to her husband, as if she thought that she might have to perch upon one of the machines whether she wished it or not. her breath came fast and short. her cheeks grew hectic. "you don't mean to say that people ride those things!" she finally exclaimed when her first flurry of agitation was past. "yes," replied ruth delightedly; "we all ride 'em." "not your father and mother,--the minister and the minister's wife?" "why, yes, and the episcopal minister too, and his wife." "are you sure, judge, that you didn't bring a fan with you?" the good woman seemed very faint, and she looked beseechingly toward her husband. "here's one," shouted susie, who ran to the cabinet and found a lovely piece of feather work, which scattered very fine feathers over your clothes and through the room on every motion you made with it. and as the judge's wife waved it back and forth the feathers began to fly. "it looks like a snow-storm," whispered herbert to theodora. and soon the feather flakes adorned their garments and floated through the air, so that one was really reminded of a fresh fall of snow. it took the good lady a long time to get her breath. the hall closets were all gone; and in their places stood seven things called bicycles, upon which the minister, his wife, and the children were said to ride. it was awful. and ruth was urging her to try one. alas! the hall was too much for her self-possession. "let us go into the west room," she said faintly. so they all came into what is now the family sitting-room and library. here everything was strange. the door into the kitchen was covered with a high book-case filled with literature. the small cubby-hole through which dishes and food had been passed from dining-room to kitchen was now made into a door. but there was one familiar object before them. in the far corner stood the clock, grave and stalwart sentinel for the house. "my dear, do you see the clock?" it was the judge speaking to his wife. he knew there must be many changes in the house. he accepted them very quietly; but he was glad to see this old familiar friend. he had expected to find it in the hall where it had always stood during his day; but he was just as glad to see it here in the old dining-room. that clock had been present on all the great occasions of life. it had marked the hours for every event connected with the history of the house. when the long line of famous men and women entertained by the judge and his wife came to mind, it was to be recollected that the clock had seen them all, and winked and blinked at them morning, noon, and night, and sounded his warning notes in their ears, when it was time to rise or retire, or to eat, or to go to court, or to drive to town, or to start for church. it was like meeting a tried and beloved friend. both the judge and his wife were overjoyed. it might have been that some indifferent family had lived in the house, and thrown the clock out of doors or stored it in the attic. there are people so dull and unimaginative, people with so little sentiment, that they never care for keepsakes or heirlooms. they want everything fresh and new about them. antiques are a perfect bore or nuisance. happily the minister's family was not one of this kind. they all had a great deal of what is called historic sense. they liked old things; and the clock was their most sacred possession. how much they had talked about it, and dreamed about the scenes which had passed before it! while ruth had invented more wild stories in connection with that one object than could be told in many a day. the other things in the room attracted little attention. the visitors made their slow and stately way across to the corner where the clock stood. as they looked up into its serene face, the object of their interest looked down upon them with a very knowing expression, seeming to recognize them on the instant, extending them a very hearty welcome; for the tick, tick was louder than ever before, the very frame of the huge thing began to tremble with suppressed excitement, and then eight long, loud strokes sounded through the entire house, as much as to say, "they've come," "how'd do?" "glad t'see you," and other kind greetings. the children had all followed the judge and his wife, and they were eagerly watching for the next movement on the part of the visitors. [illustration] it made quite a striking picture,--the tall, solemn clock in the far corner of the room, the judge and the baby on his arm, and the wife holding ruth by the hand, standing in front of it; then the throng of alert and wondering children bringing up in the rear, for they all felt that something out of the ordinary was about to happen. in fact, the whole visit of these former inhabitants of the house was rather unusual, so that the children would naturally expect fresh marvels at any moment. it was clear that mrs. "judge" was getting tired; nobody had offered her a chair, and she had refused to get on a bicycle. suddenly the door of the clock swung open. "i think you had better rest, my dear," said the judge; "we'll step in here." and as he made the remark he put his foot into the clock and gave a lively spring, filling the small doorway. "oh, please don't take the baby away!" screamed ruth, as she saw them both disappearing. "who'll nurse him? and mamma'll feel so bad." but it was all done so quickly that ruth never finished her speech, for the judge still held his wife's hand and helped her into the clock; then as ruth held all the faster to the lady's hand, she was caught up too, they all went into the clock and the door shut upon them. the other children were struck dumb with amazement. "i always thought it looked like a coffin," exclaimed samuel; "but i never expected to see four people buried alive in it." "i've wanted to hide in it a hundred times," said helen, "but i never supposed"-- "ten thousand times are hid in it," interrupted henry. "times out of mind," whispered herbert. "time, time," cried samuel; and soon they indeed had a "time." ii. closets talk and walk. ii. closets talk and walk. the first thing that the children who were left behind did was to examine the clock. they all made a rush for it, and pulled open the door. "tick, tock, tick, tock," went the huge machine. they saw the pendulum swing back and forth. and that was all they did see. the judge, his wife, ruth, and the baby had disappeared. "i believe this house is bewitched, or we are!" exclaimed helen. she had read about the strange things said and done in the old town more than two centuries ago, when witches rode through the air on broomsticks, and very lively times stirred up the people. "it was on this very spot, i've heard father say, that one of the witches lived." "oh, pshaw!" cried samuel, who knew everything; "there isn't any such thing as witchcraft. they've just stepped out for a moment, and they'll come back soon." "i think they've stepped in," replied henry, who stood close to the clock when their visitors disappeared with ruth and the baby. "let's play 'tag' while we're waiting for them to come back." this was a good way to work off their nervousness; for they were all more or less nervous, either because they really thought that the witches might be upon them, or because they would have to answer to their parents for the absence of ruth and the baby. [illustration] "we'll start from the piano," said samuel. it was christmas eve, you remember, and everything seemed rather uncommon and surprising. so they all jumped upon the piano,--thirteen of them altogether,--and it made the old instrument shiver and rattle, and try to shake them off. then they started on the game of "tag." samuel sprang from the piano to the cabinet, from the cabinet to the mantle, and from the mantle to the glass book-case in the corner; and they all jumped after him and each other. then he swung himself over to the hall door, for his arms and his legs were simply prodigious. from the top of the door he leaped to the big picture frame between the front windows. how it swayed and creaked and screamed! so he dropped down upon a low book-case beneath, and balanced himself on the edges of a crystal loving-cup. but henry and herbert had started in the other direction from the piano, and they came face to face with samuel on the loving-cup. then this elder brother sprang over to the marble centre-table, and then across to the piano again, and upon the high set of book-shelves in the southwest corner of the room. here he began to grab the books, and throw them at the other children as they came near him. then they threw books back at him. and what a commotion there was! children were passing and repassing with the speed of the wind. they were leaping from picture to picture, and mantle to table, and piano to book-case, and table to chairs, and cabinet to door; books were flying in every direction, the piano was groaning and shaking and scolding, and there was the din of many voices, shoutings, laughter, cries, boys' clothes and girls' clothes woven into a perfect mass of changing colors and shapes, the bang and rattle of moving furniture, and whatever you may be pleased to imagine. all this time the judge, his wife, ruth, and the baby sat composedly behind the face of the clock, and looked down delightedly upon the hilarious scene. there was a hole in the clock's face which served them for a window. ruth had often observed it; and she had told her mother more than a few times that she was perfectly sure there must be a big room up there, and lots of people in it, for she had seen the flash of their eyes when they peeped down into the room and watched (wouldn't it be more proper to say clocked) the people. ruth, of course, was right; for wasn't there a big room in the top of the clock? and didn't the judge and his wife know all about it? it was there that they had gone to rest. the first thing they did was to put mrs. "judge" to bed. this they did with her shoes on. the next thing was to get the baby to sleep. so the judge sat down in a rocking-chair, and began to sing to his little namesake; and when he got tired of singing the judge whistled. the baby was just as good as he could be. he laughed, and cooed, and hit the old gentleman on the cheek with a tiny hand, and tried to pick his eyes out one by one, count all his teeth, and pull off his eyebrows, dig into his ears, and find what he did with his nose, and how he kept his cravat on. meanwhile ruth was looking down upon the children, and reporting their doings to her visitors. "i think it will do them good to have a little frolic," said the judge. "yes, let them play," replied mrs. "judge." "it makes me feel as if we were once more back in the old home, and had children to fill it and bring us joy." "but you wouldn't let your children play like that," said ruth. "why, i think they're going to break every thing to pieces. and what will the church committee say? they have charge of the house, you know." "let's see what they are doing!" exclaimed the judge. so he put the baby down by his wife while he looked through the eye of the clock. just at that moment the children had all jumped upon the centre-table; and it was crowded with thirteen of them, and the lamp in the middle. there was a brief struggle, then the lamp went out, and the noise of a great fall and crash sounded through the room, after which darkness and silence prevailed. something had evidently happened. "don't you think we might visit the closets now?" inquired ruth. the judge turned to his wife to see what she answered. "i am too tired to go through them," she said. "but i should like to have them come to me." now, this was quite an original idea; but it pleased ruth. "why, yes, i think they would like to come." ruth was speaking with great animation. "we've named them, you know; and i think if i should call them by their names they'd all be glad to see you. can you sit here by this hole in the clock?" "oh, yes!" replied mrs. "judge." "that would be very nice. and the closets can all pass in front of us, and i can have a little talk with them." so ruth looked down again into the room where the children had been playing, and saw that it was quite light and the children were all gone. at once she called the closets. "i've got a list of their names in my pocket," she explained to mrs. "judge." "we can't remember as you can. even as it is, mother's all the time losing something in some of the closets, and she tries so hard to think where she puts things. she ought to carry a blank-book with her, and set everything down." the judge's wife was rested now, so that she sat up and took her place before the hole in the clock. the baby was back again in the arms of his namesake. then ruth shouted out the names of the closets. "champagne," she cried. this was the name of the wine-closet. it was a big black hole in the main cellar, just under the parlor. very soon there was a heavy tread in the west parlor where the clock stood, and in swung champagne. although such a great closet he looked very thin and dismal. [illustration] "good-evening," said the judge's wife. "how do you do?" replied champagne; and there was a great deal of pain in his voice. "you don't seem happy," said mrs. "judge." "i'm thirsty;" and the closet's voice sounded as if a fever had parched it. "poor folks live here now. they haven't put a bottle of wine into me in forty years. i'm drying up. i shall cave in one of these days." "that would be dreadful, wouldn't it?" exclaimed ruth. "would the house go down if the wine-cellar caved in?" "hope so," answered champagne testily. "don't even keep wine for sick folk. somebody did put a couple of bottles of something into me when the children had the measles, but somebody else came and stole it out of me. i thought i'd help bring the measles out, but they didn't give me a chance." "poor fellow!" exclaimed mrs. "judge." "i'm sorry for you. but these are days of total abstinence, you know. you mustn't expect much wine. don't they keep butter in you?" "no, they don't make any. and when they get some in the house it goes as fast as it comes. this family eats an awful sight of butter." "well, i'll see what i can do for you, champagne." "we can fill him up with water," whispered ruth. "for the cistern leaks now, and father says the overflow all goes into the wine-cellar. i'll call 'greece' next." champagne stepped one side, and stood by the front door. "greece, greece." the name was spoken with shrill, positive tones; and greece came hurrying down-stairs. this closet was in the attic. they smoked the hams in him, and they sometimes put bacon and dried beef up there. "how do you get along?" inquired mrs. "judge," as the closet shambled into the west room. "how'd' do, ma'am?" there was a strong smell of ham when greece made his appearance. "i've mostly given up smoking these days. i'm a poor, ham-sick fellow. they are trying to starve me to death. i haven't had anything in me for months. they won't let me say anything. they shut me up all the time." "i think greece smells bad, don't you?" said ruth as she turned to her guest. and then ruth put her thumb and forefinger up to her nose to keep out the bad odors that seemed to come up from poor greece. "i'm going to call 'china.'" so greece stepped one side without one kind word. "china, china, china." there was a very loud rattling of dishes, jingling of glasses, and much music, as the long closet between the kitchen and the dining-room stepped briskly before them. "i'm glad to see you," said the judge's wife by way of greeting. she was a lover of fine ware, and the house had been filled with it. "i'm very glad to see you," replied china. "i am living a wretched life." "dear me, don't talk like that!" exclaimed the good lady, much annoyed at all this mourning and fault-finding. "i guess you'd talk worse than that if you had been cut down, torn to pieces, burnt up, and boxed as i have been. don't you see that there is hardly anything left of me? as likely as not to-morrow they'll set to work and do something else to me,--make me smaller yet, or drive me out of the house. i can't tell what a day will bring forth. and just look at the dishes. did you ever see such a lot of nicked, broken, mismatched, cracked, blackened, ugly old ware as they keep on my shelves? it makes me sick. i wish you'd come back." all this time china had been talking in a most despondent tone, giving a fresh shake of discontent to the curious assortment of ware displayed on the shelves. it made the judge's wife nervous. she didn't like it. neither did ruth. it was not what they expected. such talk was hardly in keeping with christmas eve. "china, you just go right out-doors and wait in the cold," said ruth. "i'm going to call 'panama.' that, you know, is the closet that connects father's study right over this room with the bedroom behind it. come, panama," she cried. there was a great rustling of papers, and dust filled the room as panama entered. "what does this mean?" inquired mrs. "judge," who began to sneeze and feel very thirsty. "why, this is the closet where father keeps his sermons. i think they must rustle and make so much noise because they are dry." "good-evening," said the lady in the clock as she bowed. "good-evening," replied panama. "it's a long time since we've seen you, madam. have you come back to stay?" and one could detect anxiety in the manner and speech. "oh, no! we are here just for the evening. we thought it would be pleasant to step down and out for a little while. we were in the portraits on the east parlor wall, you remember. when the wind gets in the east we shall be obliged to go back." then panama began to cry; and as fast as he cried he drank up his tears. "i don't see what's got into the closets to make them talk so and act so!" exclaimed ruth. "they just seem bent on being disagreeable to-night. and i thought we'd have such a nice time with them. they're a discontented and complaining lot. i'm going to call 'leghorn.'" during this little talk the judge's wife was lost in thought. her chin had dropped down upon her breast, and a far-away look appeared in her eyes. "leghorn, leghorn, come here!" shouted ruth. the children had given this name to the east-corner closet in mrs. "judge's" bedroom. she used to keep her bonnets there. one of them was a white, beautiful leghorn, which cost more than twenty-five dollars. this closet was full of shelves, and it proved very useful to the minister's family. "good-evening," said the lady. leghorn looked up with surprise. he recognized her voice. "how do you do? when did you come? what's the news?" leghorn spoke in a very familiar way; for he had always stayed close to the head of the bed in the room, and overheard all the conversation between the judge and his wife. there was no better informed closet in the house than leghorn. "you look quite cheerful," said the lady. "yes'm," he replied; "i keep very busy, and have really more than i can 'tend to. you know, we have a perfect crowd of girls here in the house, and their hats just fill me up to the brim. hear 'em fuss as i shake 'em." and as the folks in the clock listened they heard such a racket of straw and such a shrill chirping that they were quite startled. "dear me, what is that queer noise?" inquired mrs. "judge." "have you a flock of birds inside of you?" "oh! i know what that is," explained ruth. "i can hear it above the rustling of the straw. it's all the birds we have had on our hats. they are feeling so good. for we have joined the audubon society, and we can't wear any more birds. how they flutter and sing, don't they?" "you don't mean that you really wear whole birds on a hat or a bonnet, do you?" one could tell from the way she spoke that the visitor was horrified. "why, yes; and you ought to see folks come to church with them. i've counted seventeen kinds of feathers and nine pieces of birds on the girls and ladies while father was preaching his sermon. we've had a bird-class here, you know, and i can tell a great deal about 'em. there was a blackbird and there was a bluebird; and one lady had a hawk's wing, and another a rooster's tail, and elizabeth had the breast and beak of a scarlet tanager, and helen wore heron's feathers, and mother had ostrich plumes; and you ought to see the beautiful plumage we took from a wild turkey sent us from the west; and we put it on susie's hat, and it was just too lovely for anything. but we've all joined the audubon society now, and can't kill any more birds or wear many feathers." "i'd like to join too," interrupted leghorn. "i'm sick of birds in me. they make such a noise, and keep me stirred up all the time, so i don't get good sleep. i'm very nervous, but i'm quite happy." "there, we've found one happy closet anyway," said ruth. "you just sit down here and make yourself comfortable." "darkest africa next," shouted ruth. this was another of the closets connected with the down-stairs bedroom. he came stumbling and grumbling along. "what do you want?" he said in a grumpy, disagreeable way. "you've kept me in the dark so long, i've lost the use of my windows." "well, you needn't be so cross about it," answered ruth. "don't you see it's mrs. 'judge' that's come back to see you?" "what? what?" cried darkest africa, rubbing his eyes and speaking in his natural voice. "where is she?" "why, up here in the clock, of course. haven't you any sense?" [illustration] "oh, such a life as we're living!" he said, turning toward the visitor. "you remember how you used to keep all your groceries in me, and how my shelves were heavy with every good thing,--tea, coffee, spices, fruits, and a thousand things. well, now they've shut the blinds, and covered the windows, and turned me into a photograph-room. it's very nasty. bad smells hang all about me. stove-pipe, pans of dirty water, chemicals, and i don't know what, make me very unhappy. and the children run through your bedroom just as if it were a public street. such goings on you never did see. i want to leave this world." "i'm ashamed of you to talk that way, darkest africa. you go out on the piazza, and wait in the cold, too, until i call you. such talk makes mrs. 'judge' feel real bad." and this closet withdrew, still mumbling about his troubles. "i'm going to call three together now," said ruth; "for the baby'll wake up before we get through, if i don't hurry." the judge had really sung and whistled the baby to sleep; and there the good man sat on the edge of a cog-wheel, holding the little fellow in his arms. [illustration] "come, 'pride,' 'vanity,' and 'ophir,'" screamed ruth. one of these closets held the clothes of the older girls--that was pride; vanity was filled with the many dresses of the younger girls; and ophir was the closet where the present family kept their small stock of valuables, like jewelry, silverware, and family heirlooms. these three closets came prancing down together, and they certainly felt good. it was christmas eve, and they knew it, for they were running over with all sorts of packages; their shelves were filled; their hooks were burdened with garments; the very floors were piled high with stuff. mrs. "judge" did not know them so well by night, for she hadn't visited them for many years before her going away. she bowed to them, and they bowed to her; but they kept their hands in their pockets. "why don't you say something?" it was ruth's remark to them as they stood in a row before the clock. "we're waiting for you to say something first," was the reply. "how do you feel?" this was by way of starting the conversation. "we feel jolly. don't you?" mrs. "judge" smiled. this was pleasant to hear, and she was very cheerful. she could see thirty-seven or fifty dresses. there were all sizes, colors, materials, and patterns. their brightness and variety fascinated her. "look here, my dear," she said, turning to her husband. "i can't. i should wake the baby," and he smiled in a very happy, dignified way. "i'll call 'morocco,' too," said ruth. "there's plenty of room, and i like to see them together." "morocco, morocco." and then there was such clattering and pattering of shoes that it seemed as if the baby must wake up; for morocco was the shoe closet, and there were so many pairs of old shoes in the place that it reminded one of a cobbler's shop. there were little shoes and big, slippers and rubber-boots, patent leathers and copper toes, high-heeled shoes and no-heeled shoes; there were blacking and brushes and shoe-strings and button-hooks and dirt. and as morocco walked in, every shoe and boot and slipper and brush was in a most frolicsome mood, jumping hither and thither, knocking the sides of the closet, and raising a great dust. the judge's wife looked from pride to vanity, then from ophir to morocco. as the clothes shook and rustled, as the silver and the old-fashioned jewelry jingled, as the foot-gear banged and rattled, ruth began to sing and dance, and the lady nodded her head to keep time; and then the judge caught the movement and beat time with his foot, and whistled an old tune; and then the baby woke up, clapped his hands, and cooed with delight. but time was passing very quickly, and there was a great deal to do before midnight came or the east wind arose. so ruth hurried the closets along in their march before the guests. "'valentine,' 'argentine,' 'serpentine,' 'clementine,' and 'turpentine,' come along with you," she shouted urgently. these were the five closets which belonged to the judge's library. valentine had nothing but broken furniture in him; argentine was loaded down with old and useless silver (plated ware) and like stuff; serpentine contained aged newspapers and magazines; clementine was pretty well filled with a variety of dolls, and they played merrily as the closet came into the room, and stood first on one foot and then on the other; turpentine brought a good deal of dust with him. he used to hold the judge's private papers. they were dry as dust. the judge was so interested in the baby that he paid no attention to the closets. "i'm going to call the closet with the skeleton in it," whispered ruth. "we named him the 'wandering jew;' we've never seen him, you know. somebody told us that the key was lost, and then the keyhole, and finally the closet itself, and it must be so; for where that closet was in your day there isn't anything now." during this remark mrs. "judge" looked very restless and sorrowful. "i just want to see what a skeleton in the closet is like. i've heard that every family has got one, but they keep them out of sight. wandering jew, wandering jew," whispered ruth with suppressed excitement; and almost on the instant the lost closet walked into the room from nowhere. he was quite small; as he walked something rattled in him. the child shivered. was it the skeleton? and would she see it? then she remembered that the key and the keyhole were both lost. "what's in it?" whispered ruth. and then she noticed for the first time that the lady was weeping. there was a strange silence. mrs. "judge" put her hands upon ruth's head, and looking down pathetically into her eager eyes said gently, "i would rather not put any questions to the wandering jew, or try to make him say anything. let him pass along out of my sight." and ruth, who was quite awed by the grief of mrs. "judge," told the closet to hurry out of sight as soon as possible. so she never knew whether it was blasted hopes or withered love, or the ghost of a chance or the dry bones of scholarship, or something else that was locked in that strange little haunted room. and now the closets were hurried along as fast as ruth could name them. but mrs. "judge" seemed to have lost her interest. the closet with a skeleton in it had thrown her off her balance. she had little or nothing to say to any of the others; and ruth herself grew tired, so that she was very glad when they had all made their bows and said their short say, and something else might be done for the entertainment of her company. iii. the procession of goat, dog, cat, bicycles, portraits, ruth, and the "little judge." iii. the procession of goat, dog, cat, bicycles, closets, portraits, ruth, and the "little judge." "[illustration: i] think it would be real nice for us to take a little ride about the town, don't you?" ruth was speaking to the judge and his wife. "yes, i think i am rested enough to go a short way," was the lady's reply. "but what shall we do with the judge and the baby?" "why, take them along with us!" ruth was always ingenious, and she had plans for every occasion. "i think we might take a ride in the closets." "what!" exclaimed mrs. "judge." "i am going to hitch up the closets and have a procession," exclaimed ruth. "you leave it to me and it'll come out all right. i'll call the cat and the goat and 'turk,' and tell them to get out the bicycles and fasten them to the closets, all in a row, and then they shall take us to ride." on any other occasion or under other circumstances this would have appeared a curious arrangement, but to-night it was quite in keeping with all that had happened. [illustration] "here billy, billy, billy, turk, turk, come kitty, come kitty," cried ruth; and the goat appeared on the minute, and with him satan the black cat and with him "turk," the bird-dog. "you must hitch up the bicycles, and hitch on the closets, and take us a-riding," ordered ruth. now, billy was an obliging goat, although his taste was not of the best; for when one of the neighbors died, and crape and flowers were hung on the front door, he went over and climbed up to the interesting objects, and ate both the cloth and the wreath. he lacked taste, but he did enjoy running up and down the street. satan, the black cat, was very fond of ruth, and would do anything she told him when he didn't want to do anything else, and he knew what she was talking about. turk was always on hand ready for a frolic. so billy, satan, and turk got the bicycles fastened together; and then ruth called out the names of the closets, beginning with the very smallest in the house. the goat and the cat took a spool of red cotton-thread, and tied all the closets in a row or a tow (just as you see boats in a row and a tow when a tug pulls them up the river). when all was ready, billy and satan and turk took their places at the head of the procession, and stood waiting for their passengers. "i think we had better put the baby in the first closet," said ruth. "that is the smallest, you know, and he will fit in like a bug in a rug." "what have you got to put around him?" inquired the lady. there had been a slight fall of snow in the evening, and then it had turned cold. "i'm afraid he will get chilly, you know." "oh! i'll wrap him up in an envelope. paper is very warm, i've heard. i'll just put him into the envelope, and then cut two holes for his eyes, and then seal him up like a letter." so the "little judge" was fixed. but it occurred to mr. judge at this point that his wife was not prepared for winter. she was a delicate person, and she wore the same clothes that she had on when her portrait was painted. the cap with frilled border was very pretty, but it was not warm. "my dear," said the judge to his wife, "you are not properly clad for a ride." "i've got plenty of clothes and things in my pocket," said ruth. "now, here is a nice postage-stamp with a picture of the queen upon it. that will do for a bonnet. i'll stick it on tight." and she did. "here is a lot of red crinkly paper that we use to make lamp-shades. i'll do her up like a bundle from the store. there, doesn't she look well?" and the child wound the bright paper all about the matronly form of mrs. "judge," and fastening it under her chin with a big safety pin, stood off and admired the brilliant result. "there won't any cold creep in through that red stuff," exclaimed ruth. "isn't she pretty?" but the judge only smiled and looked interested. "now you must be fixed," and ruth turned toward the judge. "i'll tie this handkerchief over your head, and use a piece of red thread for a muffler. and here is a nice white canton-flannel bag in my pocket that herbert has used for his marbles. you jump into that, and i'll tie you up." "but how shall we get down into the closets?" the judge seemed perplexed. "fall down, of course," exclaimed the child. "and i'm going to wear mother's feather-bed. then, if it 'thunders and lightens' i won't be afraid." so at length everything was ready, and they stood on the weight of the clock, and went down to the door which swung open into the west parlor; and then they tumbled out into the room, and made their way to the front piazza like boys engaged in a bag-race. and there before the house stood the procession of the closets. "what's become of the old portico?" asked the lady. "you must have made it into this long sitting-place." she glanced up and down the roomy piazza. "what color do you call this?" she asked, referring to the brown paint upon the house. "we always had it white." "this color doesn't show the dirt," said ruth. "all the dust of the town flies this way, mother says." at that moment there was a rumbling, hissing, and flashing in the distance. the house shook and the sky brightened. was it an earthquake, or what? "my dear," whispered mrs. "judge," "i feel a little timid. i think it's because i've been in the picture so long. i'm shaking all over. it seems to me as if something dreadful was going to happen. what is that awful noise; and i see strange flames of pale blue light shoot into the sky." "oh, don't be scared!" said ruth; "that's nothing but the trolley. see, there it comes!" down the street towards them swept a thing of light, shaking the very earth beneath, and speeding past into the night like some meteor. it was several seconds before the lady was able to speak. "child, what did you say it was?" and she trembled with fright. "why, it's the trolley-car. we ride on it. it runs by electricity, the same as lightning." and ruth popped her head in and out of the feather-bed as she replied, the feathers sticking to her hair and fluttering about her face in a most comical way. "i think we'd better start before another car comes, for billy and satan might run away. sometimes they're afraid." "yes, let us get right into our places," said the judge, who was sorry to see his wife distressed. so the baby rolled into the little closet next to the seven bicycles, and ruth jumped into the next one, and the judge and his wife shuffled into the third. "i think we must make a real funny show," exclaimed ruth, as she lifted her head out of the feathers again, and gave orders to billy and satan and turk. [illustration] "get up there, boys!" she said to this remarkable team. and then they were all in motion,--the billy-goat and the black cat and the dog, the seven bicycles, the little closet with the baby in the blue envelope, the second closet with ruth in a feather-bed, the third closet with the judge in a white flannel-bag and a handkerchief over his head, and mrs. "judge," done up in red paper, wearing a postage stamp for a bonnet, followed by fifty-seven closets of all shapes, sizes, patterns, conditions. there was a banging of wood, a slamming of doors, a creaking of windows, a dancing of shoes, a rattling of dishes, a rustling of clothes (starched clothes), a fluttering of sermons, a pounding of pots and kettles and pans, a rolling about of fruit glasses and jelly jars and canned food, a falling of hams, and a rising of flour, and a decline in vegetables simply frightful. "this is a very fine road," observed the judge. "it's just as smooth as a floor. what an improvement over the roads in our day!" "yes," answered ruth as she peered out from her feathers, "we are very proud of our roads. they are--what is it you call them? adam, cadam, oh! i've got it now, macadam roads. they cost thousands of dollars. but we've some very good men in town, just the kind you are, i suppose, and they've given us miles and miles of it. you ought to see how we skim along the road now on a bicycle. it would fairly make your head swim." "my head does swim," whispered mrs. "judge." "it's so long since i took a ride in the fresh air, and i've staid such a time in the picture and become so stiff, that the motion makes me dizzy. i think we'd better stop for a few minutes." "what is this?" exclaimed the judge. they had gone only to the corner of the green. there was a very thin covering of fluffy snow on the ground. suddenly the clouds broke away, and the moon flooded the scene with light. and there, standing distinct and stately against the black background, glistening and shimmering in the mild radiance, was the church. "where is the old meeting-house?" and the judge rubbed his eyes, and got the handkerchief loose upon his head; and mrs. "judge" in her agitation dislocated the postage-stamp that served for a bonnet so that she felt a cold draught in her left ear. "why, judge, we aren't here, are we? we must be somewhere else." then ruth uncovered her head, and let a few feathers fly back in the face of her guest and laughed merrily. "that's the new church. our new stone church. isn't it lovely? did you ever see anything like it? whoa, billy and satan and turk! wait a minute! we want to take a look at things." "you don't mean to say you have another meeting-house, do you? what's become of the old one?" "oh! that was set on fire. you ought to've seen it burn. father said it was the saddest, beautifulest sight he ever saw. it was like a church built of fire; and it blazed away,--walls, roof, floor, all glorious without and within, and then it was caught up into heaven, so father says. it made us think of elijah going up in his flaming chariot. and then we built this stone church. don't you like it? why, of course you do; why, i heard father say that you wanted a stone church, and gave something for one." "like it, child, of course we like it! and we did want a stone church, and we tried to get the folks to build one, but they thought they weren't rich enough. like it! why this is one of the happiest moments of my life. what a striking building it is!" "yes; and there is some of your money in it, for i've heard father say so. they got pay for the old church when it burned, and that went right into the new. and it was an english company that had to pay the insurance; and folks said it was no more than right that the english should pay it, for they burned down the one in when they burnt up the town, you know." "you know a great deal about history and things, don't you?" it was mrs. "judge" that made the pleasing remark. "yes, i know many things. it's because i ask so many questions, i suppose. but mother says i lack 'capacity.' i don't know what she means; it's something dreadful, i suppose. perhaps i'll make it up when i get big. wouldn't you like to stop at the church and go inside? i've got a key right here in my pocket. samuel and i carry keys to about everything." "i think we might take a little rest here," said the judge. "do you think the team will stand?" and his eyes twinkled curiously as he looked out upon billy and satan and turk. [illustration] "oh, yes! they'll be all right. if they get tired of waiting they can take a short run on the bicycles. go up there to the front door. 'whoa!'" this was said to the team. when they came to a stop ruth tumbled out first, then the judge and his lady followed, scuffing along as best they could. they unlocked the door; and ruth rolled back to the first closet, picked up the envelope with the baby in it, tucked him into the feather-bed by her side, and returned to the vestibule. they observed that the church was all lighted and warm. so ruth slipped off the feather-bed, although a thousand feathers stuck to her, making the child appear like a new kind of overgrown fowl. the judge took the baby on his arm, for he had also slipped out of herbert's marble bag, and then ruth led them through the building. every part was explained,--the windows, the organ, the gaslights, the carved pillars, the glass screen, the chapel, the piano, the library, the parlor, the furnaces; everything was noted. "why, how lovely it is to be warm in meeting," said mrs. "judge." "you know we used to have foot-stoves, or hot baked potatoes, or a piece of stone. that was all." "you don't mean to say that they gave you hot baked potatoes with butter in meeting, and that was the way you kept warm?" "oh, we didn't eat them!" interrupted mrs. "judge." "we held them in our hands, or put them to our feet. but the little stoves were better. and then finally we had stoves, big stoves, in the meeting-house. i thought i should faint dead away when they first used them. it seemed to me so hot and stuffy in the room. and then i remember that my husband laughed at me when i drove home (i always had to ride, child; i wasn't able to walk so far for many years); for he said there hadn't been any fires kindled yet in the new stoves. but i got used to them after a time, and they were real comfortable. but i should certainly faint away to see the heat coming right up out of the floor, and think that underneath me was a raging fire." "why that's the way we warm the parsonage," said ruth. "didn't you see the registers?" "have you got one of those fires in the cellar?" asked mrs. "judge." "dear me, judge, i shall never feel safe again so long as we hang on the east parlor wall. why, we shall be liable to burn up any moment. think of having one of those awful things, full of fire, right under your feet. i'm so sorry that i know anything about it." "oh, you'll get used to it! you have got used to it, haven't you? there has been a furnace in the parsonage ever so many years." they were all seated in the minister's pew in church at this time. the judge was bowed in thought. "he looks as if he was going to pray," whispered ruth, somewhat awe-struck by his expression and the stillness of the place as well as the solemnity of the occasion. but it was hard for her to keep from asking questions. "did you see the man in the moon as we came into church?" she turned to mrs. "judge." "the man in the moon!" exclaimed the lady; "he's the very person that i want to speak to. i think it's years since i've seen him." "well, he's out to-night in great style. it must be because it's christmas eve. did you hang up your stocking when you were a little girl?" "do what?" inquired the lady. "hang up your stocking, to be sure, for santa claus to fill it with presents." the judge's wife looked with astonishment upon the child by her side. it was impossible for her to imagine what was meant. "i never heard of such a thing," she replied. then ruth enlightened her. "you know that jesus was born on the twenty-fifth of december?" "yes, my child." "and you know god gave him to the world?" "yes." "well, don't you think it's nice for us to give things to each other on that day? and don't you believe that santa claus comes down the chimney and brings us lots of presents?" "why, i never thought of it." and the dear old lady began to think a good deal about it. "we keep it right here in church too. we have a christmas-tree, and sing carols, and all the children get presents and candy, and ever so many nice things; and everybody is just as happy as can be. don't you think that is a nice way to remember the coming of jesus and god's gift to all of us?" "well! well! well! and so to-night is the very night, is it? judge, did you know that our folks now keep christmas in their churches and their homes? do you think there is any sin in it?" he was startled out of his reverie by the question, and ruth was obliged to explain to him what she had said to his wife. then he thought upon it for a little time, and replied to mrs. "judge." it pleased him. he wished to see what it was like. "why, i think, my dear, that it might be made a very happy, helpful festival. why couldn't we have one over at the house to-night?" "we are going to have one there in the morning," exclaimed ruth. "we all get up bright and early, and our stockings are filled, and there is a little tree, and candles, and oranges, and shiny balls, and beautiful things; and we dance around, and sing, and have oh! such a happy, happy time. i wish you would stay and see it." "my dear," the judge was now speaking to his wife, "don't you think you could get up a little party for the children to-night? we can't stay until morning, you know. we must go back into the pictures. and the east wind may rise at any hour." [illustration] "judge, i'll step out a moment and speak with the man in the moon. he's out to-night, ruth says, and perhaps we can arrange something. i'll be back very soon." so she walked down the aisle, and passed into the vestibule with all the liveliness of a young dame. "i think this must be the very spot where i used to sit in the meeting." the judge was talking to himself as much as to ruth. "i wonder what they did with the old box pew that belonged to me? how times have changed! but this is very rich and dignified, and satisfies me." as this was said he surveyed the chaste and elegant interior with approving eye. "i am glad to see it. but i wish it had been in my day. there are some ideas that i should like to have embodied in stone on this spot. strange world this." and then he bowed his head in thought again. "i'm going to meet mrs. 'judge,'" said ruth, "unless you will stand up and make a speech to me. do you think you are as good and wise and great as people say? i've heard father tell how you could speak better'n any minister or lawyer in new england. could you? because i'd like to hear you if you could." the judge blushed to hear such praise. "i'm out of practice," he replied. "i believe my voice has lost itself. it's very trying on the vocal organs to hang in a picture for a hundred years or so. but i will say a few words." then the judge walked up into the pulpit, made a very graceful bow, and began to recite psalms. his voice was remarkably rich and sympathetic. he put so much soul into the words that ruth sat perfectly still, a thing she had never been known to do before in all her life. had it not been for the floating about of feathers as she breathed, and drove them hither and thither, she would have appeared like one dead. when the judge finished he came down from the pulpit, and ruth was so overcome that she didn't say one word for as much as a minute and one half. then the spell was broken. mrs. "judge" came hastily in, saying that she was ready to go, and the team had just returned from their run on the bicycles; then they all came out of church, and the organ played, and the bell rang, and the gas fixtures jingled, and when the company was fixed in their closets they continued on the ride. "did you see the man in the moon?" inquired ruth. "oh, yes!" replied mrs. "judge"; "i've made all the arrangements; and when we get back the house will be ready, and we'll wake up the children, and it will be our first real christmas party. i am going to invite only the closets and the children. i want to get the closets all filled up again for once; and then i want to see every one of you children so full of happiness that you'll run over and make other people happy too." [illustration] as they were passing the town hall the judge was again reminded of old times; for that was the very place where he had argued many of his cases, and won some of his greatest victories. "my dear," he said, "i could almost imagine we were set back to the war of , and i was going over to the court house to express my views to our citizens." "it looks as though they'd done something to the building," remarked the lady. "how they change everything these days!" and then they swung down beach lane, and came to the old cemetery. "look at that!" exclaimed ruth. "isn't it fine?" she referred to the thick, solid, stone wall enclosing the grounds, and the beautiful lich-gate that stood over the entrance. "we're right up to the times here," continued the child. "the daughters of the american revolution and some of our ladies did that. we can sit on those stone seats hot summer days, and it's just as cool as cool can be. and it's such a nice place to play 'hide-and-seek' behind the grave-stones and the wall among the trees." "now, this is what i love to see," observed the judge. "this shows the true spirit of reverence. i am proud of these good daughters. what did you say they were called? daughters of the american revolution? why, they must all be dead by this time." "oh, no!" explained ruth; "these are their daughter's daughters, you know. and they have such good times. why, mother is going to their meetings a good deal of the time. they talk about the revolution and things, and wear flags and pins, and have refreshments and papers, and elect officers, and get up plays, and go to washington, and keep inviting each other somewhere, and all the while say ever so much about washington's birthday and the fourth of july and the battle of lexington. why, we children know so much about history that it seems sometimes as if we'd lived all through the whole fight, and seen the town burned, and helped drive the british away. don't you think we're smart?" "i shall have to be very careful how i talk about these things, or you will catch me in some mistake, i suppose." the judge looked serious, but there was that funny twinkle in his eyes. "suppose we now drive around the new cemetery, and see if everything is as trim and neat there. we'd like to look at our own graves, and see how things are." "well, i think that's a very unpleasant way to spend christmas eve; and i'm sure that billy and satan and turk will be afraid to go into that place, and so shall i; and you can't see much from the road; so let's drive up to round hill, and watch for santa claus." "oh! just as you please," continued the judge. "this is your circus, not mine." and he smiled indulgently upon ruth. so they turned about on the beach road, and slipped up to round hill. while they were viewing the scenery, the man in the moon winked at mrs. "judge," as much as to say that the house was all ready, and it was time for the party to return. iv. the party with supper for seventeen, and toasts with a toasting-fork. iv. the party with supper for seventeen, and toasts with a toasting-fork. when they returned to the parsonage, billy unhitched himself and opened the front door. the judge and his wife with ruth and the baby hastened into the warm rooms as fast as the feather-bed, the white flannel bag, the blue envelope, and the red paper would permit them. "why, what a change there is here!" exclaimed ruth. "it must be exactly as you used to have it." "yes," replied mrs. "judge"; "i told the man in the moon to make things look natural. this seems really like coming home. i feel very much as i did whenever i drove down to new york, and came back to the dear house. it is so nice to see these beautiful carpets again, and the same chairs and tables and sofas; the very damask curtains i made; my little sewing-stand; the clock right there in its place near my bedroom door; and there is the refrigerator. i always had it stand in my bedroom, you know. that made it very convenient. and i kept all the stores in"-- "me," groaned darkest africa, who still remained in front of the house awaiting the orders of ruth. "yes, in you," continued mrs. "judge"; "and i expect to see you very happy again to-night. i never kept christmas. we didn't approve of such things when i was a child." she was now talking to ruth. "but if they have a christmas-tree in the meeting-house, and the minister thinks it's all right, it must be so. i am really quite glad to get up a party to-night. i shall have it to think about when i go back into the picture. and that reminds me, child, that i want you to come into the parlor very often and speak to me. it's very very lonely staying there day and night, summer and winter, year in and year out. why don't you ask the judge and me to play church with you and the rest of the children some of the times when you come into the parlor?" "why, i never thought of that!" exclaimed ruth. "i'll do it the very next time (which will be sunday, i suppose) that we have church again." by this time they had taken their wraps off and put them up. that is to say, ruth got out of the feather-bed, and had turk carry it up-stairs, while she took the handkerchief and the marble-bag off from the judge, and the postage-stamp and the red crinkly paper off from mrs. "judge," and put these things in her pocket. then they all went into the lady's chamber, and took the baby out of the envelope, laying him on the bed, and covering him with a soap-dish and a hair-brush to keep him warm, for he had gone to sleep. "now we must get ready for the party," said ruth, "and then i'll call the children and dress them. but, dear me! what will you and the judge wear? we've got tired of seeing you in the same clothes all the time. oh, i'll tell you! let's play dress up just as we children do, and then i can fix you out in fine style." "just as you say, child. it's your party, and you can do much as you please. and the truth is that i am pretty tired of wearing the same clothes all these many years. i don't think it makes so much difference to a man. but we women like to have something new once in a while, say once in fifty or seventy-five years." "oh! won't it be fun?" cried ruth. "we'll have 'providence' come in here and show us what he's got in him. you know providence is the big closet in the corner of the betsey-bartram room. come here, providence." this closet ambled into the bedroom, and mrs. "judge" took a silver candlestick with a wax candle in her hand, and stepped into the closet followed by the judge and ruth. what a medley of stuff they found! there were silks and satins of all colors and kinds. there was velvet and calico, lawn and broadcloth, furs and flowers, laces and linens, swallow-tail coats and fancy vests, a waterproof, a riding-habit, bicycle suits, pajamas, flags and bunting, forming an infinite assortment or mixture of everything under the sun in the shape of dry goods. "you don't keep an old-clothes exchange, do you, child?" asked the astonished visitor. "oh, no! these are mother's treasures (that's what she calls them). we get 'em when her ship comes in. it always seems to come in the night. we children have watched for it ever since we lived west and could remember. but the first we know is that mother tells us some day how the ship has come in, and another cargo has been unloaded in providence. then we all make a rush and overhaul the cargo; one thing fits one child, and another thing fits another child, and what doesn't fit we make over, and then we appear in our new outfits. you ought to see us go into church a week or two after a fresh cargo of treasures has been distributed. it's great fun." during this talk ruth was rummaging about in the trunks or on the shelves in search of something becoming to her guests. "i think the judge ought to have something solemn on, don't you?" she said, addressing his wife. "now, this long, black waterproof is the thing. and he can wear samuel's bicycle stockings and shoes. then, here's a broad purple ribbon for a necktie; and i'll put this ermine boa around his neck, for don't judges sometimes wear ermine? doesn't he look cute?" she had helped him on with the things while mrs. "judge" stood by smiling her approval. "i think this green velvet waist and this red silk skirt will look well on you." ruth was speaking to the lady. "then i'll do your hair up with this white lace and these yellow flowers. it's so cold i think you had better wear mittens. i think you ought to have a train to your dress. i'll take some safety-pins, and fasten a few yards of this white satin on behind. doesn't it look elegant? you must have a corsage bouquet." and she twisted up some dry grasses and pink roses, and pinned them to her belt. "and this white gauze veil will add to the effect." so it was spread over the lady's head, and fell in scant folds across her brow. "i shall get into this pink crape," ruth continued, "slip these muffs up my ankles, and take this black fur cape and that lovely, lovely lavender bonnet. i'm going to wear white kid gloves, and have a train of that yellow satin. will you, please, tie this bow of nile-green velvet about my neck? and i must have a veil too. this one with little red spots like the measles all over it will suit me, i guess. there, now, don't i look just too nice for anything?" both the judge and his wife bowed and smiled. "i'll put this black lace one side for the baby when he wakes up. we'll dress him up with that and some tissue paper i've got in my pocket. and now let's go and take a look at the house again." but their talking roused the baby; so they dressed him as ruth had planned, winding the paper and lace about his body as though he were a mummy; and then they started for the parlor, the judge carrying his namesake on one arm and supporting his wife on the other, with ruth dragging on behind, clinging to the right hand of mrs. "judge." at the foot of the stairs ruth proposed that she go and call all the children. for at this late hour they had gone to bed. but the visitors thought it better to wait. "we must ask a few questions and find out what the children want for christmas," said mrs. "judge." so they passed into the parlor, and sat down on the grecian sofa. a soft, gentle light fell from the astral lamp and the wax candles on the mantle-piece. the wood fire on the hearth, the heavy damask curtains at the windows, the rich mahogany furniture scattered about through the room, the handsome pictures upon the walls, gave the place a very inviting appearance. "now, ruth, we're going to put something in each child's stocking." mrs. "judge" was speaking. "it seems to me a foolish custom, but now that you all do it we will follow suit. tell us what to get." "father says there's a difference between what we want and what we need. we want a great many things, but we need only a few." "that's sound talk," observed the judge. "your father must be quite a man." "oh!" was the reply, "he weighs almost a hundred and ninety pounds. i heard mother tell the teacher the other day that she thought i lacked capacity. i don't get along in school at all. there are so many things to do besides study that it takes all my time. i think mother would be pleased if you gave me something of the kind. that's what i need i suppose. but what i want is to know about everything. that's why i ask so many questions and tease to go all the time. i'm trying to find out things for myself. how should i learn how old a girl or a lady is if i didn't ask? and what's my tongue for if it isn't to use in talking?" "to be sure," replied mrs. "judge." "but i used my tongue for eating too, until i got into the picture. i think it's almost a hundred years since i had anything to eat." "mercy! aren't you hungry?" exclaimed ruth. "but you don't look thin, and you certainly don't grow old. i've heard folks say so when they looked at your picture. 'why, how nice and fresh and lifelike they seem.' that's what our visitors say when we take them into the parlor to see the portraits. but, dear me, we shall never get through the list if i keep on talking. i can't help talking. i seem made for it. i've heard father say that several of his family were deaf, but none of 'em were ever dumb." the judge and his wife appeared quite interested in this lively flow of speech on the part of the child, so they nodded their heads with encouragement, and ruth continued. "now, there's helen, she's always talking about writing a book. i think she wants to write a book above all things. you might give her the book she is going to write. but what she really needs is curls. that straight black hair makes her look horrid. i wish you'd bring her a whole lot of curls. isn't it queer that we can't have a baby with curls? we've had a regular cry over it more than once. not a single curl in all the fifteen. every hair of our heads as straight as a string. don't you think you'd better write the things down as i tell them to you? but then you've got such an awful memory i suppose you can remember everything. now, there's samuel. you tell him two things and father says he's sure to forget three. mother says if his memory was as good as his forgetery, he'd make something remarkable." "i think if you will lend me a piece of paper,--that red crinkly stuff that the baby has on,--and a stick of candy or a poker, i will write down the articles you mention." it was the judge speaking. "why don't you take the quill and the paper that you hold in the portrait, and use them?" inquired ruth. "to be sure!" exclaimed the judge. "what a bright girl you are!" "father doesn't think so. i don't know how many times he's said to me when i've done something queer, 'ruth, you don't seem to have any sense.' susie said one day, 'well, i'll give her my two cents.' and she did, and i spent it for candy. father would be so pleased if you gave me some sense for a christmas present, i know." the visitors smiled as the child prattled, and let her continue without interruption. "i know what samuel wants. i know a lot of things he wants. mother says he always wants to go home with the girls. but you couldn't call that a present, could you? oh! i know one thing he wants very much. whenever he tries to race with any of the boys, and he comes out a long way behind, he says he wants wind. just put that down, please. but i think the thing he needs most of anything is courtesy. at least father keeps talking to him about it. if you would bring a big lot of it i'm sure we'd all be pleased. it must be something very nice, for father says something about it every day of his life." the judge nodded his head, and wrote with his quill upon the sheet of paper. "theodora is always wanting clothes. she's never had enough. i don't know how many times we've heard her say she had nothing to wear. and then father says she'd better go to bed. i wonder if she'll have all the clothes she wants in heaven?" neither the judge nor his lady ventured to answer. "what theodora really needs, i think, is a gold spoon. mother says she was certainly born with a gold spoon in her mouth; but the spoon has been lost, for i've never seen it, and it would be such a nice thing to give her one in its place. or, maybe, you could bring her the very one she had when she was born. i should like to see what kind of a spoon it was." so the judge put that down. "it's easy enough to tell what ethel wants. she's always talking about it. she wants some _new_ clothes. she says she's sick to death of second-hand stuff. mother's always having something made over for her or some of the younger girls. we've never seen anything real fresh and new. father says we ought to be thankful to have clothes at all. i suppose we had. what ethel needs is application. her teacher says so, and so does everybody else. she doesn't stick to a thing." "poor child," said the judge. "she'll have a hard time, i fear. i'll see what we can do for her." "now, miriam hasn't any gumption, father says. i wonder what that is? i think that must be the thing she needs the most. she's such a chicken-hearted girl samuel says. and that makes me think what it is miriam always wants. she tells mother, i don't know how many times a day, that she wishes she'd have some spring chicken. you don't know how fond she is of 'em. but they're very high here, you know. and spring chickens enough to go around in such a family as ours would soon ruin us, mother says. but ethel is so fond of them. how she wants 'em! do you think you could fill her up for once?" "why, spring chickens are not in my line of treasures, my child; but i might find something that would take the place of such fowls." "henry says elizabeth's a regular old goose. and samuel calls susie 'duckie.' i wonder if you couldn't help grace. she needs balance, everybody says. i think she's smart enough, but she's a high-flyer. you never can tell what will happen next when she's around. please bring some balance for a present. but what she wants is frederick. he's the boy in the next block. i don't think it's right to think so much of boys unless they're your brothers. elizabeth says her brothers are her bothers. and i think so too." ruth looked very severe. the judge simply continued his writing. "do you think you could bring all of us a very great deal of sweetness of disposition? i've heard so much about that thing that i'm real tired of it; but i know it would please both father and mother, for they have talked about it ever since i can remember. i know a little baby girl down south who is so sweet they call her 'sugar.' samuel says if we named our children as they ought to be named, some of them would be called 'vinegar.' but he's 'funning,' i guess. mother says his bark is always worse than his bite. "now, george needs heart. samuel says george will never die of heart disease, because he hasn't any heart. he has a gun, and elizabeth calls him nimrod. he wants to go to war. but we're afraid he might get shot in the back. but he's a real good boy after all. i should hate to see him going around with a hole in his back." just at this point the judge coughed and looked queer. "henry is crazy about music. he wants a violin, but mother says he needs an ear for music. i should like to know what he'd do with a third ear. would you put it on the top of his head? and he wants to sing; but, dear me, father says he needs a voice. he has voice enough, _i_ think. you can hear him all over town. did you write it down?" ruth looked keenly at the judge as his pen flew with the speed of a snail over the paper. "yes, here it is in white and black." "now, william is an awfully forward boy. he's so forward father says that he's growing round-shouldered. he wants to be president. that's ever since he went to the white house with mother. it was a very cold day, the day he went; and william had his mittens on, and mother couldn't get to him to take 'em off when he shook hands with the president. neighbors say that what he needs is training. but they don't train now as they used to. father says they used to train out here on the green several times a year. i know the best thing you could bring william is a training. and susie, she wants something she hasn't got. i don't think it makes any difference what it is. mother says if she hasn't got it she wants it. and then she snivels when she doesn't get it. i heard some one say the other day that what she needed was a spanking. but i don't think that would be a very nice present, do you?" "well, not for christmas, anyway," whispered mrs. "judge." "there's nathaniel, he always wants to go somewhere. father says that if we lived in beersheba nathaniel would want to move into dan, and when he got into dan he'd be sure to start the next day for beersheba. he needs a good deal of watching, mother says. samuel, elizabeth, helen, henry, and miriam have all got watches; but you see we can't all have them at once. "now, just look at elizabeth. you'd think we all belonged to her, wouldn't you? she wants to _run_ everything. and then she runs so much that mother says she runs down. but father says she needs experience, and then everything will come out all right. if you could bring her that ripe experience that i've heard folks talk about, i think it would make father and mother feel real pleased. "herbert needs backbone. i felt of his back the other day, and i didn't see but that he had just as much bone in it as the rest of the children, but father says not. mother says you can twist him around your little finger. that would be a queer sight, wouldn't it? herbert is always talking about a good time. that's the thing he wants. could you bring something of that sort to him?" "well, my child," answered the judge, "i am thinking about bringing a good time to every one of you. it's such a pleasure to see the old house full of children that i should like to do anything in the world possible to make them happy." when this was said mrs. "judge" beamed an approval, and seemed very happy herself. "but you haven't told us what to give the baby." "dear me, why that's the best of all! but everybody knows what the baby ought to have. i've been a-looking to see if you've brought it along with you. when folks come to see the baby they smile and trot him on the knee and kiss him, and then say, 'i'm so glad you named him for the judge. he was a good, great man. may his mantle fall upon his namesake.' and then they kiss him again and go away. it's your mantle that we expect you to give the baby. but you didn't bring it with you, and i'm so sorry. and it isn't in the picture either. for i've looked there a great many times. i thought maybe it was left in the house, but we never hear anything about it. now you're right here with the baby i thought if you only had it you might give it to him at once. could you send it to him? it must be something very fine. even father talks about it." a tear stole down the cheek of the judge. it was chased by another and a third. he seemed deeply moved. for the judge was human like the rest of folks, even if he did stay a hundred years in a picture. and who does not like to be remembered with such loving words and beautiful praises? can one help feeling kindly and grateful? the judge's voice choked with emotion as he replied to the noble sentiments of the child. it was very hard for him to express himself. "my little ruth," he stooped and looked down into her face with wondrous and pathetic tenderness, "you have done me more good than all that i can do for you. these very words that you have just spoken are more precious to me than all the money in the world." "why, you don't mean it, do you?" interrupted the child. "i was saying what everybody says. i don't know how many times i've heard father say that your memory was a--a--a benediction, that's the word. a very big word for such a little girl as i am; but, dear me! i've heard folks use it so many times about you that i can speak it all right. it must be something very good. why, of course, that's what they call the end of church service. i think it's the very best part of going to meeting. i always feel so happy when they come to the benediction. i think everybody else does too. and now about the mantle. will you send it to the baby?" "why, ruth, i think it must be pretty nearly worn out. only what you say about it, and what you say others say, makes me think that perhaps it might be worth saving, so that i could give it to the baby if folks think best. i'll look it up and talk with my wife, and perhaps i'll give it to the dear little fellow. i wish it were a better mantle, however. i'd like to see him wear one more worthy than mine." "don't you think it's time to call the children?" said ruth. "send turk," replied the judge, with that same funny twinkle in his eye. so ruth took the dog, and ran up-stairs and down-stairs and in the lady's chamber, and wakened the children, telling them to hurry right down to the party. [illustration] they didn't have time to dress much. the boys all put on their trousers and stockings and slippers, and then they wrapped around them whatever was most handy. samuel wore his father's loud, red, double gown. henry pulled on a canvas shooting-jacket. herbert did himself up in a rose blanket. george had on an afghan. nathaniel brought with him a crazy-quilt. william got into his mother's golf-cape. the girls were a little more particular. they put on all their clothes except dresses. then they wound sheets about themselves, and tied their heads up in pillow-cases. when the boys tumbled down-stairs they looked like a lot of escaped lunatics. when the girls came pushing into the parlor they made one think of ghosts. the first thing was a walk around headed by turk and the black cat. you couldn't fancy a more startling procession. then they played games, and sang songs, and told riddles, and looked for a needle in a haystack, and turned the house upside down and inside out. the great event of the party was the supper. mrs. "judge" had told the man in the moon what she wished for the occasion, and while the children were rollicking in the east parlor the clock sounded out the alarm for the feast. the judge carried his namesake on the left arm, while his wife leaned upon his right. ruth still kept hold of the lady's hand. the rest of the company followed in a good deal of disorder, for they were all curious to see what sort of a supper would be given them. when they came into the west parlor or dining-room they saw a long table, but there was nothing on it. the children looked at each other and at the judge and his wife in blank amazement. they expected to sit down to a table laden with all the goodies of the land. but there wasn't even a table-cloth before them. the judge took the head of the table, and his wife sat at the foot with ruth. the baby was put in a clothes-basket, and sat on my lady's work-table by the side of the judge. the other children took the places that were most convenient to them. "where's the feed?" exclaimed ruth. "the what?" replied mrs. "judge" curiously. "why, the things you were going to give us to eat." just then "dublin," the linen closet, came meandering into the room, made a bow, and emptied out a long, white, snowdrop tablecloth. "why, it must be that we're to set the table ourselves," cried ruth, as she started to undo the cloth and shove it along. "here you give that to me, will you?" said samuel, with a tone of authority any commanding officer in the army or navy might envy. then he took one end of it, and elizabeth the other, and they spread it carefully over the table. just then china came rattling into the room with the dishes. it was easy enough for him to get into the room; but it was quite another thing for him to move gracefully about the table, for china, you remember, was thin, long, and rather narrow. but he managed to get to the judge, and drop a plate before him and the baby; and then he twisted around like a snake, and got down to the end of the table, and dropped a plate before mrs. "judge." then he went from one child to another, and banged down a plate before each one of them. after this was done, china stepped back and stood by the side of dublin, near the wall. el dorado came next. he brought the silver, and there was a fine display of it. beautiful knives and forks and spoons for every person in the room, and ever so many little furnishings that helped to brighten the table. how these things rattled and jumped and rang as they were tumbled hither and thither into their rightful places. the children didn't have to move a hand or a finger to put them in order. every knife, fork, spoon, salt-cellar, or other article seemed to know where to go, and got there in less time than one could say "jack robinson." then the silver candlesticks from the mantle jumped over to the table, and took their places with a good deal of brightness and sprightliness. at this point the antique sideboard stepped close up to the table, and rolled seventeen very thin cut-glass goblets upon the board. they made a right merry sound as they jingled out their christmas greetings. "don't let the baby have a goblet!" shouted ruth. "he'd bite a piece right out of it. that's what elizabeth did when she was a baby, mother says. isn't it a wonder she didn't die?" but everybody was watching this extraordinary way of setting the table, so that the child's remark fell unnoticed. there was a most lively and musical ringing of bells at this stage of the table setting. turpentine came dancing into the room. turpentine was the closet in the judge's study that had been used to store the church-bells in. when the last wooden meeting-house had burned they took the old bell, which rang for the last time the sad alarm of fire on the memorable night, and they sent it away to be melted up and made into five hundred little bells. there were dinner-bells and tea-bells and call-bells and sleigh-bells and play-horse bells on lines, and i don't know how many other kinds. nearly all of these had been sold, but thirty or forty remained in the closet. turpentine came into the room playing with these, and rolled one down in front of each person at the table. "how would you like to have the dinner served, ruth?" inquired mrs. "judge." "oh, served of course," she replied. "bells first course," shouted samuel. the older children all snickered. "i think you ought to call turpentine 'bells-ze-bub!'" samuel whispered to helen. "see?" for by this time the children had all come to a familiar footing with their visitors, and they were expressing themselves with a good deal of freedom and having a right good time. the refrigerator entered the room now, and tramping heavily over to mrs. "judge," swung open his door, and flung gracefully upon the table a big dish of half-shells. no sooner were they placed where they belonged than they began to roll about to the different plates, like a lot of marbles, only they seemed to know how to divide themselves up so that every one had a proper share. then the refrigerator dumped out another large dish of something fresh and green; and this stuff sailed along the table, as one sees seaweed float back and forth on the tide. "i know what it is. they grow down by the brook. caresses. aren't they nice and fresh?" "third course, caresses," shouted samuel. and then he bent over and kissed the girl next to his side; the judge kissed the baby, ruth kissed mrs. "judge," and the rest of the children kissed each other. "awful sweet course!" exclaimed henry. "very much of it makes a fellow sick." this was followed by the entrance of the kitchen closet number one. a fine brass kettle popped out upon the table. there was a great rattling and clashing. everybody tried to look into the bottom of it. "that's a pretty kettle of fish," said samuel, who was the first to get a glance at the contents. and sure enough it was; for there were seventeen tin fishes, such as you see floating around after a magnet on some basin of water at christmas time. "look out for bones," cried herbert. "what next?" and then vanity came down-stairs, giggling and simpering, and passed something around. "crimps," said ruth, "hot and steaming, straight from the irons." a very strong odor of scorched hair pervaded the room. "goodness me, what a treat!" exclaimed henry. "give 'em to the girls. they are fond of 'em." kitchen closet number two came hurrying into the room. china rushed forward with bowls which he had borrowed from the bowling-alley; and each bowl was filled with bean porridge hot, bean porridge cold, bean porridge in the pot nine days old. "here comes the spring chicken!" exclaimed herbert, as the refrigerator distributed one spring with chicken attached. "do-nots for old-fashioned boys and girls," wheezed out darkest africa, as he pushed his way into the room. the company was getting pretty large, for all the closets had come. one stood behind each person at the table, and the other forty-three were pressing against each other, trying to see the table and hear the conversation, or do any little waiting upon the merry party. they were all busy eating, talking, drinking, having the best time in all the world. there was an abundance of everything. i don't know what all. but as the courses were brought on the judge and his wife became a little restless. they felt that the east wind was rising. and when the clock struck twelve it was necessary for them to be back in the pictures, whether there was any east wind or not. so there was some confusion, considerable crowding, and a good deal of haste during the latter part of the feast. "i'm afraid the children will get dyspepsia, judge," observed the cautious lady. "the children are eating too fast. the closets are bringing on too many things at a time." "time and tide wait for no man," replied the judge, who had caught the hilarity of the company, and was enjoying every moment of the fun. "i wish to see this board cleared up before we clear out." now, mrs. "judge" was the least bit shocked at such undignified speech on the part of her husband. but she knew he didn't mean any harm. he was only entering into the spirit of the frolic. yet she felt that he ought to set an example of sober conversation, so that they would remember him with the highest respect. the judge, however, had a sense of humor that could not be held altogether in check. "i think we ought to have some toasts," said samuel. "all in favor of the nomination say, 'dickery, dickery dock, the mouse ran up the clock, the clock ran down, the mouse came down, dickery, dickery dock;' and samuel rose to propose the first toast. kitchen closet number three came forward, and put into his hand a nice, big toasting-fork. flourishing this about his head, and hitting henry on the right ear with it, samuel lifted a goblet filled with hot air to his lips, and proposed the health of the judge and his wife. the applause was overwhelming. the children clapped their hands, and lifted their voices on high. the dishes jumped like mad. the bells rang so that you couldn't hear yourself think. the closets creaked and groaned, and slammed their doors, and shook their shelves, until it seemed that they must fall in pieces. the judge gathered his waterproof about him, pulled on his necktie for a moment, cleared his throat, and then responded. "children and closets," he said. the children all rose and bowed, the closets all turned around twice and stood on one corner. "this is in some respects the greatest day of my life." "you mean night, don't you, judge?" interrupted samuel. "oh! i beg pardon, night of my life. correct, my son." he bowed good-naturedly to the critic. "we haven't stayed in those portraits on the east parlor wall for nothing all these years. we've been waiting for such a time as this. i think the east wind is rising, and soon we shall have to go back to our pictures; but i am glad to say that this is the sort of family that i always had in mind when i built this house. it's lonesome to live without children. this is a strange world. i have observed generally that the people who want children don't have them. and the people who have them don't always want them. and the people who know the most about bringing them up are the people who never had any, and never lived in a family of children when they were young. but i really believe that one never gets much out of this world except it comes to him through children. and now i hope that you will be such children that when you grow to be men and women we shall not be ashamed of you. my wife and i expect to stay in the portraits. we shall always be on the watch for you and sometimes in the clock. there isn't anything in the world that would give us such pleasure as to see you children grow and become the best men and women in all the nation. i suppose you have enough boys to make a foot-ball team, and enough girls to drain a common pocket-book and spread it all over your backs; but you are going to make something better than idlers and spendthrifts. some of you will take to one thing, and some to another, but you will all take to the right. i expect to see you filling up the house with nice friends, going off to college, and bringing back good company and great honors. by and by you will all settle in life, and have homes of your own; but we shall keep at home here on the wall, and look for your frequent visits. ruth has made me very happy. i'll tell you how. she has said some of the things to me that people have said to her about me,--kind things, sweet praises, words of happy remembrance. now, i hope that you will live and love in such a true way that when you get into a picture and stay a hundred years, and then step down and out for a little while, people will say just as noble things about you. 'tis sweet to be remembered. and i feel very anxious to do something for all you children. this is the first time we ever kept christmas. we're going to make you some christmas presents. but they shall be put in your stockings." "i'll hang up my hip boots," interrupted samuel. "i'll hang up my golf stockings," exclaimed henry. "i'll hang my trousers; and you, elizabeth, can hang your bicycle bloomers." the judge smiled, and waited a moment, and then continued. "these presents are different from the ordinary gifts you receive. you'll have plenty of candy and dolls and such things. we shall give you things that you can always keep and carry with you. and they will be worth more than money, in case you use them according to directions. and remember that we give them because we have learned to love you, even if we do live in pictures, and that we expect you will honor the house, the people, and the state." the judge swallowed a tear. "we never had boys and girls to go out into the world to make their mark. our two boys," and here the judge's voice was feeble and trembling, and he stopped for a moment and wiped away two or three tears, "our boys were sick, and after quite a good many years they went away forever. children, i want you to fill their places, and more. i expect that you will go out into the world, and do so much good, and serve your country with such zeal and wisdom, that people will by and by come here to see the house, and say, 'this is where samuel and henry, george or herbert, william, nathaniel, or the "little judge" lived, and were brought up.' or 'this was the childhood home of elizabeth, helen, miriam, theodora, grace, ruth, ethel, or susie. i wonder who slept in that room, and if this was the favorite window, and which one of the family planted this shrub or vine or tree, and what was the best-loved play nook,' and all sorts of questions. don't you think it will be nice? and then my wife and i will say, or try to say, or make them understand in some way, that you belonged to us next to belonging to your parents, and that we guarded the house day and night, for you know that in the picture we are always awake; come into the east parlor at any hour of the twenty-four and we always have our eyes open, and we know everything that is going on. we'll make them understand that a part of the love and thanks they feel belongs to us, and we shall be so happy, and when we meet again we shall have so many things to tell each other. now ruth will see to the presents, for we are not educated up to a belief in santa claus. ruth will"--just at this point the clock began to strike twelve. now, the judge and his wife were the most polite, really the best-mannered people in all the world. but that striking of the clock seemed to knock all the manners out of them. the judge sprang from the table quick as a flash, and in his haste turned the clothes-basket with the "little judge" in it bottom side up. mrs. "judge" jumped up as spry as a girl, and ran toward the judge, who grabbed her by the hand, and pushed her hard against the closets in the way, and struggled to get into the hall. [illustration] there was the greatest confusion imaginable in the house. the children were all hitting the dishes, scattering the silver, overturning the goblets, tumbling over the chairs. the closets all made a rush for the door, and jammed themselves so close together that samuel and henry had to raise the front windows, and jump out on the piazza, and climb in at the parlor windows, and the other children followed them pell-mell. there was the greatest noise you ever heard in a house. the clock sounded with terrific strikes. the front door-bell, the dinner-bell, and all the other bells rang an alarm. things in the closets seemed breaking themselves to pieces or going into fits. the piano roared and shrieked like a hurricane. every board and brick and nail and bit of glass, metal, or wood squeaked or rattled. the very carpets shook with dust and fear. and then, as the children caught a glimpse of the judge and his wife back again in the portraits, the clock struck the twelfth stroke, the lights all went out, the children were back in bed, and silence reigned throughout the old mansion. v. stockings filled with music, rainbows, sense, backbone, sunsets, impulses, gold spoon, ideals, sunshine, star, mantle, flowers,--and the like queer stuff. v. stockings filled with music, rainbows, sense, backbone, sunsets, impulses, gold spoon, ideals, sunshine, star, mantle, flowers,--and the like queer stuff. ruth was the only one left awake in the house. and it was very lonesome for her. but she had promised to distribute the presents. mrs. "judge" told her that the man in the moon would bring them at twelve o'clock, and that he would put them in turpentine. ruth didn't like to go into the judge's old study, but that was where she would find turpentine; so she ran and got the baby, who had red hair, and served the purpose of a light, and then she bravely went into the far away part of the parsonage. she took satan, the cat, because his eyes were like coals of fire, and helped to drive away the darkness; and she had turk for company's sake. the baby was soon astride his back, crowing like a good fellow. [illustration] [illustration] when they got into the old study the light shone right through the door that led into turpentine. it frightened ruth. she thought the house might be on fire. but the door swung open of itself; and she and the baby, satan and turk, all entered. the little room was a blaze of glory. she had to put her hands up to her eyes and shade them, because the light was so strong. it all came from a row of packages arranged on the shelves. and such a wonderful, mysterious, lovely sight you never saw. the packages were various shapes and sizes. they were all done up in nothing with greatest care, and each was tied with a narrow piece of something or other. several packages had strings of blue sky around them, ending in curious bows. three packages were tied with real little rainbows. they were beautiful objects. the rest of them had sunsets twisted about them, gorgeous colors streaming from them in all directions. do you wonder that ruth's eyes were dazzled? a singular thing about the packages was, that being done up in nothing, and bound with such tenuous and transparent stuff as blue sky, sunsets, and rainbows, one could see straight through these coverings and fastenings, and gaze upon the beautiful things within. each present had a label of light above it. for instance, there were the shining letters, s,a,m,u,e,l, worked upon the background of darkness over the present for samuel. the letters seemed to hover above the package just as you see light hover above children's heads in some pictures of the old masters. so it was very easy for ruth to pick out the different gifts, and put them where they belonged. there were seventeen of them. one for each child, one for the minister, and one for his wife. "how nice to remember father and mother!" said ruth to the dog, the cat, and the baby. "i never thought of that. now, how shall i carry them?" for she felt that she would like to show them to the judge and his wife. so she raised the window that connected this closet with the parlor, and taking each gift, carried it to the piano, and arranged the whole show where mr. and mrs. "judge" might see it from the pictures. the baby, turk, and satan watched her while she made the change. the parlor was warm; and just as soon as she brought the marvellous presents into the room, every nook and cranny was a perfect splendor of brightness. "dear me!" exclaimed the child, "i must go up-stairs and get some colored glasses or i shall lose my eyesight." she was gone and back again in one minute and thirteen seconds. the green goggles gave her a wise and aged appearance, and she seemed to feel the importance of the occasion. "here are the presents, judge." she was now addressing the pictures. "they are just too sweet for anything. how nice it is that i don't have to undo any of them, but can look right straight through their covers, and see what's in every package!" the judge and his wife were both wide awake, taking in every word that ruth spoke. "now, what is this for samuel? a flower, i do believe. he can wear it in his buttonhole. oh, how sweet and beautiful it is! the house seems full of its sweetness. i love it." ruth bent over to kiss the airy, fragile thing. "why, here's a name under it, and a sentence. did you write it judge?" and the picture seemed to nod as much as to say "yes." "courtesy." "to be worn all one's waking hours. it will make the wearer welcome." the next package was shaped round like a ball. the bow on it was blue sky. "it looks to me like a--what is it you call it, when you look into a mirror? oh! i've got it. it's a reflection. now, that must be for helen. yes, i see her name in fine letters of flame above. h,e,l,e,n. you didn't send the curls, did you?" ruth looked anxiously at mrs. "judge." "i suppose you thought that as helen was going to write a book she needed reflection more than the curls." the third package was long. the thing within was long, and it looked like nothing that one had ever seen. "what can it be?" said ruth to herself. as she took it and felt of it, she found that it was sensitive, yet quite firm. the object was pure white, not a spot or wrinkle on it. the floating label above the package spelled out the letters h,e,r,b,e,r,t. ruth read the name. "that can't be backbone. it's too light for that. and yet how strong it is. how in the world can he ever get that inside of him where it belongs?" the fourth package was about seven inches in length, rather narrow, and larger at one end than the other. "i do believe it's a spoon," shouted ruth. "it must be for theodora. they've found her gold spoon, and sent it to her. and yet it doesn't look like gold. how funny! when i feel of it i don't feel of anything. it isn't so pretty as i thought it would be. it has a kind of dull look. but how much better one feels to hold it." ruth had taken the curious object in her hand, and was putting it up to her lips, and going through various motions with it. "here is some writing. the spoon is marked. what big letters they are! theodora hasn't all those initials. c,o,n,t,e,n,t,m,e,n,t. well, that beats me. but i suppose she'll know what it means." the child now picked up her own present. they all seemed so bright and wonderful that she had forgotten to choose her own first. ruth's package had a great many sides to it. every color imaginable appeared on the surface. it was tied with several little rainbows, and there were ever so many streamers and rosettes upon it. she saw her name above; and she saw some letters printed into the leaves of the flower, for it was a lovely, shining little blossom that was contained within her package. it seemed to her that all the colors of all the rainbows in the sky had been woven into this matchless posey. there were nine leaves to it, and each leaf was made up of half a dozen shades of one or another color. and then on each leaf there was distinctly seen a letter done in diamond embroidery; so that the light which shot forth from such delicate tracery was almost as bright as the sun. one leaf had s, a second e, a third n, a fourth t, a fifth i, a sixth m, a seventh e, an eighth n, and the ninth and last t. ruth spelled it out carefully. s,e,n,t,--here she paused and thought a moment. "why, to be sure!" she exclaimed; "it has a very sweet scent. i think it smells quite as good as samuel's. but i told you, you remember" (she was now addressing the pictures), "that father said i needed sense. i'm afraid he'll say that one 'sent' isn't enough." then she continued her spelling. "i, ment. well, now, isn't that queer? 'i meant.'" she repeated it several times. "i meant cent. were you trying to correct me, judge? when i said sense did i mean (what is it they call it), oh, singular, not plural? everybody says i've got a great deal of imagination, but i lack (father says sense but that isn't what i mean now)--i lack."... and then ruth looked at the flower again; and spelled the word, and spoke it aloud. "'sentiment,' that's it. sentiment. i know what it is. i shall certainly be a poet. they all say so. thank you, dear judge and mrs. 'judge.' i'm going to begin to-morrow and write poetry. i feel as if i could write some now. but i must go through the presents and put them in the children's stockings first." so ruth put down her package of "sentiment," and examined the other gifts. she took the one marked h,e,n,r,y into her hands, and the room was filled with the most heavenly music. the package was the shape of a cylinder. it had a transparent cylinder within it. and this cylinder was written all over with strange characters, exactly as you see or feel on the cylinder of a graphophone. only it didn't seem to be made of anything, and when ruth took the object into her hands it was like holding a pinch of air. it appeared to run of its own accord. ruth was enchanted with the melodies. they made her think of everything good "in the heavens above, and in the earth beneath, and in the waters under the earth." she was so happy that she cried. every tear that she dropped went into the machine, and made the music all the sweeter. then she read the words under the package. "music in the soul;" and she felt as if it were really stealing into her, and as if it were impossible to keep it there, and she must let this music in the soul go in every direction. "isn't this lovely!" she exclaimed. "i never dreamed music in the soul was so sweet. why henry'll be the happiest boy in all the world." ruth then took into her hands a heart-shaped package. it was tied up with a sunset that was gorgeous with a great many shades of red. "i know what's inside that package without looking," she said. although of course she had looked, and seen the form of the present, and noted the colors used in tying it up. "that's a heart; and it's for george. isn't it cunning? why, what a little thing it is? and it's soft. will this make george soft-hearted and tender-hearted and good-hearted? i hope so. it's real nice of you to send it." the next present was for elizabeth. it was circular shape, like a small hoop; some parts of it were light and some dark, some very beautiful and some almost ugly. yet the darkest, ugliest spots upon it were illuminated and glorified by brilliant flashes of what looked like lightning playing around the hoop. when ruth held the object this singular brightness would flame up into her face. it didn't hurt. it fascinated her. she felt like sitting down and watching every change. the words underneath the circle read, "experience is the best teacher." she spelled it out, then her eyes beamed with delight. "it's the very thing that elizabeth needs. i was afraid you couldn't give it to her. i have heard it was hard to pass on experience to other people. now elizabeth can run the house and mother can travel. that will be real jolly." "here is something for susie," cried ruth, as she put down elizabeth's package, and took up the next one. "it's a cup made of--of--of--why, isn't that queer?--made of wishes. this is the first time i ever really saw a wish. now, susie always teases for the wish-bone. and here's a cup made, not of wish-bones, but of wishes. i wonder if she can drink out of it. she's always telling how 'thursday' she is. we're sometimes afraid she'll drink the well dry. why, the cup is full of something. it sparkles. 'a draught of bliss.' that's what it says under the cup. i know what that means. it means to feel as good as one can feel. well, i'm glad she's going to have it. if the cup spills over we'll catch some of the drops. and if she feels good we'll all feel better." thus wisely remarked the child to the pictures. the next package had a dream wrapped up in it. you never saw anything more curious. it was as light as a feather, as bright as a button, as sweet as a rose, as gay as a lark, as true as steel, as deep as the sea, as high as heaven, as wise as an owl, as you like it. it had all the hues of the rainbow. it was as odd as dick's hatband. it went floating against the blue sky. it dipped down into several sunsets as you see swallows dip down or fly up when a storm is coming. it seemed well suited to nathaniel, the humming-bird sort of a boy. and there were the letters in shotted light over against the gloom, n,a,t,h,a,n,i,e,l. "dear little nathaniel," said ruth, as she handled the dream carefully, putting it back in its wrappings of nothing, and tying it up again with blue sky, sunsets, and rainbows all mixed together. "won't he be surprised to see a real dream, and carry it all around town to show folks. and it's a good dream, a nice dream, i know. i can tell by touching it and feeling of it all over." the next package was a large one; and it was for grace, although she was not one of the largest girls. it was shaped like a triangle, and when you took hold of it the thing seemed to stretch bigger and bigger. "what can it be, i wonder," mused ruth. and then looking keenly through the nothing that covered it, she discovered that there were a great many little, charming, luminous objects packed into the package. they were different shapes and colors and sizes. but every one of them was pleasant to the touch, alluring to the eye, and melodious to the ear. whether each one contained a music-box or not, it was impossible to say, but strains of angelic songs kept escaping. it reminded ruth of henry's "music in the soul." underneath the triangular box she read these words: "a fine assortment of generous impulses. warranted pure." the big words she skipped, except the two, generous impulses. she knew them at once, for she had heard her father say a great deal on that subject. "judge, it's very good of you to send these dear, blessed things to grace. i'm perfectly sure she'll divide up and give every one of us as many as we like. i should think there might be a hundred in the box. i'm a-going to climb right up here on the piano and kiss both of you." and she did; and she carried the generous impulses with her when she did it. when ruth jumped down on the floor again she examined miriam's package. it held a star, a real star. the man in the moon brought it down from the sky. "isn't this wonderful beyond anything!" exclaimed the child. "how many times we've said 'twinkle, twinkle little star, how i wonder what you are,' and now here you are." the little, shrewd, cunning fellow sparkled and glistened so that ruth's eyes ached in spite of her green goggles. he seemed a very intelligent creature. he could almost talk. "i heard father say something about plucking the stars from heaven the other day, and then he repeated something about the stars growing cold. this star isn't cold, i know. and there's his name down at the bottom. 'a star of hope.' hope so. now miriam will be proud enough. we shall see her going around with her star. i've heard about babies being born under some star or other. i see now how they could get under. judge, will miriam be a star herself now? do you think she will star it? 'star of hope.' this beats me." ethel's present was next. the package was so bright that it was impossible to tell the shape of it. from every direction the light rayed forth in dazzling brilliancy. "i'm sure it is a box of glory," cried ruth. the writing underneath the shining, beautiful thing said "sunshine." "haven't we been singing 'rise, shine?' how lovely it will be to have ethel go about the house scattering sunshine! what strange stuff it is!" as she said this ruth took a handful of it out of the package and examined it very closely. "it keeps slipping out of the hands and dropping down to the floor or rising up to the wall. dear me! how shall i get it back?" she chased it in ten ways at the same time. "but i can't catch it," she continued; "and see, there is quite as much of it left as there was in my hands and the box before it floated away. oh! won't this be nice on rainy days? we can have the house filled with sunshine, even if it does rain, and the sky is black with clouds. i do think i never saw such elegant, wonderful presents in all my life, and i don't believe any other children in all this world ever got such things as we have for our christmas." the next present was for william. as ruth looked at it she seemed lost in thought. she was studying it out. there wasn't any shape to the thing. the package itself didn't have any shape. it was a beautiful mass of light. yet the longer you looked at it, the more lovely, attractive, and real it appeared. finally it did take a shape; and when you made up your mind that it was round or square or octagonal or irregular or something else, the shapeliness of the thing vanished. "i wonder if it's a thought?" the child said to herself. "i've often thought i'd like to see what a thought looks like. i hear so much about thought and thoughts, that i'm real curious. father told mother the other day that i was a very thoughtful child. if i'm thought_ful_, seems to me i ought to see a good many or feel 'em." then she looked down under the package, and read, "a bundle of i,d,e,a,l,s." "why, i don't see any bundle," she exclaimed. but that moment the mass of light changed into strands of willowy brightness, and she could see there was a neat little bundle of these shining threads. she took the bundle into her hands and pulled out one. this first strand was straight as an arrow, and there suddenly showed itself at the bottom of it a chain of letters. the strand of splendor, in fact, appeared to grow out of these letters. they were m,a,n,l,i,n,e,s,s. the letters were made in quaint forms, and they were indescribably beautiful. ruth pulled out another strand from the bundle. this seemed larger and more solid than the first, and quite as precious. letters soon formed into a chain at the lower end, and these were w,o,r,t,h. she pulled out the third strand. it seemed almost alive, being in constant motion. the chain of letters beneath it was as follows: s,e,r,v,i,c,e. a fourth strand had the letters h,o,n,o,r entwined about one end. and there were many other similar strands. ruth had on her thinking-cap (made of nothing particular, and trimmed with everything in general) all the time that she was examining them. of a sudden the word "ideals" struck her. "i know now what these bright, lovely things are," she cried. "i've heard father preach about them, and he has told us children i think hundreds of times. he says we must all have them, and have the best too. why didn't you think of it before? judge, you're just as good as you can be." ruth was talking to the pictures. "father and mother will be very thankful that you have brought all these into the family. i know what an ideal is. it's what you want to be, and try to be. haven't i heard samuel and elizabeth and the older ones talk about high ideals?" as she spoke she shook the radiant little bundle, and saw all sorts of great, noble men and fine, lovely women spring right out of the brightness, taking form before her face and eyes. "i do declare that looks like william." she was gazing at one of the tiny, luminous faces that appeared against the shadows. "we shall all pop into the light like that, i expect. that must be what father calls attaining one's ideal. isn't it grand? yes, there come the other children. one springs out of one ideal, and another out of another. it's just like a fairy tale. but i never dreamed what curious things ideals were. how rich we shall be?" then ruth gathered the ideals together, and put them back where she found them. the next present was for her mother. it was resting on an air-cushion in a casket of love. it seemed to ruth that the sun and moon and a good many stars had got into that package. it took more rainbows than you can shake a stick at to tie up the package securely, so that nothing could get to it. the present was a crown, and underneath were the words "a mother's jewels." there were fifteen of them, no two alike. the crown was a cloud with a silver lining. ruth took it in her hands, and putting it on her head, felt the light running all down her head and over her face. it wasn't the least bit uncomfortable. but the top of the crown was the most wonderful. all the fifteen jewels studded it, so that, as one wore it, anybody standing by would almost think that the brightest lights in the heavens had been borrowed, and wrought into this head-dress. and each jewel had a name all about it, the letters being made of the very smallest stars that you can find out of doors. the child was too astonished and delighted to talk as she examined this gift. she put it back in its casket without one word. it took her breath away, so that she couldn't say anything. by the side of this package was one for her father. she was glad to turn to it, for it was not so splendid and marvellous that it dumfounded her. his package had a bottle in it. "i believe it's made of forget-me-nots," said ruth. she took it into her hands, and found it was woven like basket work, a sort of wicker bottle. only the stems of the plants were so intertwisted that the blossoms all came to the outside. but both stems and blossoms were perfectly transparent, so you could see straight through into the inside. "e,s,s,e,n,c,e of c,h,e,e,r,f,u,l,n,e,s,s. to be taken eternally." this was written beneath, and ruth spelled the two big words slowly. "i know what that means," she continued. "the judge is going to give father some more sense. for essence, of course, is only another kind of sense. oh! i forgot the essence man. he brings us peppermint and vanilla and cologne. we season things, and make ourselves smell good. now, that's what you've sent to father, isn't it? essence of cheerfulness. you want him to season things with cheerfulness, don't you, and make himself and all the rest of us fragrant? and he'll do it. he's always saying that we ought to be cheerful. but what kind of stuff is it?" and ruth tipped up the bottle to taste of its contents. she smacked her lips and beamed with delight. "i do believe it's a spirit. father says, you can't see spirit but you can feel it. i can't see anything but light in that bottle, but i can feel something all through me. i must dance a little, i feel so good. oh, dear me! that's the way people sometimes act when they've drunk from bad bottles. but i can't help it." she caught her skirts in each hand, and airily waltzed up and down the room. "i must see if the mantle is here," she suddenly exclaimed. "how strange that i've just thought of it!" and then she stopped to look at the baby's present. "it can't be that the judge's mantle would go into such a little package as that." so ruth remarked as she took the tiny thing in hand. it was tied with the most brilliant sunset that eyes ever saw. the streamers attached to the bow were much bigger than the package itself. when ruth undid it, and held the singular object before her eyes, it seemed to grow large and long. it was truly the judge's mantle. as she shook it out, and let its folds drop down to the floor, the pictures fairly beamed with glory. "silver threads among the gold," exclaimed the child, as the beauteous garment flashed its splendors into her eyes. for the warp was the pure gold of character, while the woof was the fine silver of influence. and they were woven into a fabric of surpassing richness. then this matchless weaving was covered with fairest embroidery. every color that imagination ever conceived appeared upon the garment. there was the white light of truth, the red of sacrifice, the purple of royalty, the greens of fresh life, the pink of propriety, the red that you see in a green blackberry, the blue of a minister's monday, and true blue, auburn from a child's head, hazel from a child's eyes, black as thunder cloud, pale as death, the lemon of lemon ice, orange from orangeade, and a great many others. and these colors were worked into words, flowers of rhetoric, scenes indeed, pictures of love, kindness, wisdom, and peace. it was also adorned with quite a number of gems of poetry, and it had a pearl of great price to fasten it at the throat. the first thing which ruth did was to try it on, but it dragged on the floor. it occurred to her that the baby must wait until he was grown up before it fitted him. still, she tried it on the baby. no sooner did she wrap it around him than it seemed to shrink to his size. "why, we can use it for a winter coat," she said. and the "little judge," who had fallen asleep before the fire, where he had crawled with turk and the cat, cooed and laughed when the mantle was wrapped about him, seeming to feel that it was the very thing that would make him happy and comfortable. all the time that ruth was handling the magic thing, it continued to throw off little points of light and countless mites of color, and these settled down on the furniture and carpet and the curtains and the walls and the ceiling, until the room was like a palace studded with twinkling, shifting, radiant stars; and every present on the piano was shining and scattering light, the air being filled with music, and ruth was wild with delight and excitement. [illustration] the next thing was to carry the gifts to the stockings where they belonged. wherever she went, there was the brightness of noonday, so she never had a fear. even the closet with the skeleton in it did not make her tremble. beginning with father and mother, she visited every stocking, and put each gift in its proper place; then she carried the baby to bed, and left turk and satan snuggled up together in front of the fire; and then it seemed to her that she floated away in a sea of light; and then mounting upon the wings of the wind, she suddenly met the sand man who pushed her into the land of nod. the last that she remembered was blue sky, gems of poetry, rainbows, shooting stars, flowers of rhetoric, strains of music, sunsets, closets, stockings, christmas cheer, sunshine, and a great many other things, all standing around the type-writer in her father's study, telling the machine what to say, and begging that everything might be set down in a book and live forever. e. happy day. e. happy day. now, when it grew toward morning ruth awakened first, and what did she do but jump out of bed and feel of her stocking; the thing which she found was a book, and she knew without looking into it that the book told all about the judge and the pictures, the house and the children, and the strange things that had happened on this eventful night. later there was the sound of many voices, scores of "i wish you a merry christmas," went flying through the air, carols burst upon the ear, and a whole host of happy, loving children shifted from one room to another, and finally gathered beneath the pictures of the judge and his lady. did the good man lift his hands in benediction? did he beam with the joy of the christ-life? the light was rather dim in the parlor, for it was early in the morning. but the children were constantly turning their eyes to the portraits. it seemed to them that new life throbbed within their souls, that grand purposes had been awakened, that charity and tenderness, the love of god and the love of one another, were moving to all kinds of well-doing. they felt as never before that they were living in the home of this great, good man, and that they must go forth into the world as his manly and womanly representatives. peace not only filled the house, but it rested upon them. it was the most joyful day of all the years. never a quarrel darkened a heart. never a harsh word fell from any lips. never a mean thought rose in their breasts. it was real christmas cheer. and i believe that every child of them was made richer by the blessed presence (presents) of the judge and his lady. * * * * * transcriber's note: repeated chapter titles were retained as some were laid out differently than at the chapter itself. page , "clause" changed to "claus" (as santa claus) page , "to" changed to "too" (think so too) page , "bookcase" changed to "book-case" to match rest of usage in text (a low book-case beneath) page , extraneous quotation mark removed before (i'll call 'greece') page , "surpressed" changed to "suppressed" (with suppressed excitement) page , "everthing" changed to "everything" (everything under the sun) page , single closing quotation mark changed to double (and use them?") page , closing quotation mark added (it means.") page , closing quotation mark added (is!" as she said this) the cyber _and_ justice holmes by frank riley _old judge anderson feared the inevitable--he was to be replaced by a cyber! a machine that dealt out decisions free of human errors and emotions. what would justice holmes think?_ [transcriber's note: this etext was produced from worlds of if science fiction, march . extensive research did not uncover any evidence that the u.s. copyright on this publication was renewed.] "cyber justice!" that's what the district attorney had called it in his campaign speech last night. "cyber justice!" oh, hell! judge walhfred anderson threw the morning fax paper on top of the law books he had been researching for the past two hours, and stomped angrily across his chamber to the door of the courtroom. but it was easier to throw away the paper than the image of the words: "--and, if re-elected, i pledge to do all in my power to help replace human inefficiency with cyber justice in the courts of this county! "we've seen what other counties have done with cyber judges. we've witnessed the effectiveness of cybernetic units in our own appellate division.... and i can promise you twice as many prosecutions at half the cost to the taxpayers ... with modern, streamlined cyber justice!" oh, hell! walhfred anderson caught a glimpse of his reflection in the oval mirror behind the coat rack. he paused, fuming, and smoothed down the few lingering strands of grey hair. the district attorney was waiting for him out there. no use giving him the satisfaction of looking upset. only a few moments ago, the presiding judge had visaphoned a warning that the d.a. had obtained a change of calendar and was going to spring a surprise case this morning.... the judge cocked his bow tie at a jaunty angle, opened the neckline of his black robe enough for the pink boutonniere to peep out, and stepped into the courtroom as sprightly as his eighty-six years would permit. the district attorney was an ex-football player, square-shouldered and square-jawed. he propelled himself to his feet, bowed perfunctorily and remained standing for the pledge of allegiance. as the bailiff's voice repeated the pledge in an unbroken monotone, walhfred anderson allowed his eyes to wander to the gold-framed picture of his personal symbol of justice, oliver wendell holmes. judge anderson winked at justice holmes. it was a morning ritual he had observed without fail for nearly fifty years. this wasn't the classic picture of justice holmes. not the leonine figure walhfred anderson had once seen in the national gallery. the justice holmes on the wall of judge anderson's courtroom was much warmer and more human than the official portrait. it was from an old etching that showed the justice wearing a natty grey fedora. the justice's fabled mustaches were long and sweeping, giving him the air of a titled playboy, but his eyes were the eyes of the man who had said: "when i am dying, my last words will be--have faith and pursue the unknown end." those were good words to remember, when you were eighty-six. walhfred anderson stared wistfully at the yellowed etching, waiting for some other dearly remembered phrase to spring up between them. but justice holmes wasn't communicative this morning. he hadn't been for a long time. the district attorney's voice, threaded with sarcasm, broke into his reverie: "if the court pleases, i would like to call up the case of people vs. professor neustadt." walhfred anderson accepted the file from his aging, nearsighted clerk. he saw that the case had been assigned originally to department . it was the case he had been warned about by the presiding judge. walhfred anderson struggled to focus all his attention on the complaint before him. his craggy features, once described as resembling a benign bulldog, grew rigid with concentration. the judge had a strong sense of honor about dividing his attention in court. a case was not just a case; it was a human being whose past, present and future were wrapped up in the charge against him. "your honor," the district attorney broke in, impatiently, "if the court will permit, i can summarize this case very quickly...." the tone of his voice implied: a cyber judge would speed things up around here. feed the facts into the proprioceptor, and they'd be stored and correlated instantly. perhaps so, walhfred anderson thought, suddenly tired, though the morning was still young. at eighty-six you couldn't go on fighting and resisting much longer. maybe he should resign, and listen to the speeches at a farewell luncheon, and let a cyber take over. the cybers were fast. they ruled swiftly and surely on points of law. they separated fact from fallacy. they were not led down side avenues of justice by human frailty. their vision was not blurred by emotion. and yet ... judge anderson looked to justice holmes for a clarifying thought, but the justice's eyes were opaque, inscrutable. judge anderson wearily settled back in his tall chair, bracing the ache in his back against the leather padding. "you may proceed," he told the district attorney. "thank you, your honor." this time the edge of sarcasm was so sharp that the clerk and court stenographer looked up indignantly, expecting one of the judge's famous retorts. the crags in the judge's face deepened, but he remained quiet. with a tight smile, the district attorney picked up his notebook. "the defendant," he began crisply, "is charged on three counts of fraud under section ...." "to wit," rumbled judge anderson, restlessly. "to wit," snapped the d.a., "the defendant is charged with giving paid performances at a local theatre, during which he purported to demonstrate that he could take over cyber functions and perform them more efficiently." walhfred anderson felt the door closing on him. so this was why the d.a. had requested a change of calendar! what a perfect tie-in with the election campaign! he swiveled to study the defendant. professor neustadt was an astonishingly thin little man; the bones of his shoulders seemed about to thrust through the padding of his cheap brown suit. his thinness, combined with a tuft of white hair at the peak of his forehead, gave him the look of a scrawny bird. "our investigation of this defendant," continued the d.a., "showed that his title was assumed merely for stage purposes. he has been associated with the less creditable phases of show business for many years. in his youth, he gained considerable attention as a 'quiz kid', and later, for a time, ran his own program and syndicated column. but his novelty wore off, and he apparently created this cybernetic act to...." rousing himself to his judicial responsibility, judge anderson interrupted: "is the defendant represented by counsel?" "your honor," spoke up professor neustadt, in a resonant, bass voice that should have come from a much larger diaphragm, "i request the court's permission to act as my own attorney." walhfred anderson saw the d.a. smile, and he surmised that the old legal truism was going through his mind: a man who defends himself has a fool for a client. "if it's a question of finances," the judge rumbled gently. "it is not a question of finances. i merely wish to defend myself." judge anderson was annoyed, worried. whoever he was or claimed to be, this professor was evidently something of a crackpot. the d.a. would tear him to small pieces, and twist the whole case into an implicit argument for cyber judges. "the defendant has a right to act as his own counsel," the d.a. reminded him. "the court is aware of that," retorted the judge. only the restraining eye of oliver wendell holmes kept him from cutting loose on the d.a. but one more remark like that, and he'd turn his back on the justice. after all, what right had holmes to get stuffy at a time like this? he'd never had to contend with cyber justice! he motioned to the d.a. to continue with the people's case, but the professor spoke up first: "your honor, i stipulate to the prosecution evidence." the d.a. squinted warily. "is the defendant pleading guilty?" "i am merely stipulating to the evidence. surely the prosecution knows the difference between a stipulation and a plea! i am only trying to save the time of the court by stipulating to the material facts in the complaint against me!" the d.a. was obviously disappointed in not being able to present his case. walhfred anderson repressed an urge to chuckle. he wondered how a cyber judge would handle a stipulation. "do you have a defense to present?" he asked the professor. "indeed i do, your honor! i propose to bring a cyber into the courtroom and prove that i can perform its functions more efficiently!" the d.a. flushed. "what kind of a farce is this? we've watched the defendant's performance for several days, and it's perfectly clear that he is merely competing against his own special cyber unit, one with very limited memory storage capacity...." "i propose further," continued professor neustadt, ignoring the d.a., "that the prosecution bring any cyber unit of its choice into court. i am quite willing to compete against any cyber yet devised!" this man was not only a crackpot, he was a lunatic, thought walhfred anderson with an inward groan. no one but a lunatic would claim he could compete with the memory storage capacity of a cyber. as always when troubled, he looked toward oliver wendell holmes for help, but the justice was still inscrutable. he certainly was being difficult this morning! the judge sighed, and began a ruling: "the procedure suggested by the defendant would fail to answer to the material counts of the complaint...." but, as he had expected, the d.a. did not intend to let this opportunity pass. "may it please the court," said the district attorney, with a wide grin for the fax reporter, "the people will stipulate to the defense, and will not press for trial of the complaint if the defendant can indeed compete with a cyber unit of our choice." walhfred anderson glowered at the unsympathetic justice holmes. dammit, man, he thought, don't be so calm about this whole thing. what if you were sitting here, and i was up there in a gold frame? aloud, he hedged: "the court does not believe such a test could be properly and fairly conducted." "i am not concerned with being fairly treated," orated the wispy professor. "i propose that five questions or problems be posed to the cyber and myself, and that we be judged on both the speed and accuracy of our replies. i am quite willing for the prosecution to select the questions." go to hell, holmes, thought judge anderson. i don't need you anyway. i've got the answer. the professor is stark, raving mad. before he could develop a ruling along this line, the grinning d.a. had accepted the professor's terms. "i have but one condition," interposed the defendant, "if i win this test, i would like to submit a question of my own to the cyber." the d.a. hesitated, conferred in a whisper with his assistant, then shrugged. "we so stipulate." firmly, walhfred anderson turned his back on oliver wendell holmes. "in the opinion of the court," he thundered, "the proposed demonstration would be irrelevant, immaterial and without substantive basis in law. unless the people proceed with their case in the proper manner, the court will dismiss this complaint!" "objection!" "objection!" the word was spoken simultaneously by both the d.a. and the professor. then the defendant bowed toward the district attorney, and asked him to continue. * * * * * for one of the few times in his life, walhfred anderson found himself faced with the same objection, at the same time, from both prosecution and defense. what a morning! he felt like turning the court over to a cyber judge right here and now, and stomping back to his chambers. let holmes try getting along with a cyber! the d.a.'s voice slashed into his thoughts. "the people object on the grounds that there is ample precedent in law for the type of court demonstration to which we have agreed...." "for example," spoke up the professor, "people vs. borth, n.y., supp. --" the district attorney blinked, and looked wary again. "the people are not familiar with the citation," he said, "but there is no reason to be in doubt. the revised judicial code of procedure provides for automatic and immediate review of disputed points of law by the cyber appellate division." cad! walhfred anderson customarily used every legal stratagem to avoid the indignity of appearing before cad. but now he was neatly trapped. grumbling, he visaphoned the presiding judge, and was immediately assigned to cyber v, cad, fourth floor. cyber v presided over a sunlit, pleasantly carpeted courtroom in the south wing of the justice building. square, bulky, with mat black finish, the cyber reposed in the center of a raised mahogany stand. its screen and vocader grill looked austerely down on the long tables provided for opposing counsel. as walhfred anderson belligerently led the professor and the d.a. into the courtroom, cyber v hummed softly. a dozen colored lights on its front grid began to blink. judge anderson angrily repressed an instinct to bow, as he had done in his younger years when appearing to plead a case before a human appellate court. the cyber's soft, pleasantly modulated voice said: "please proceed." curbing his roiled feelings of rage and indignity, the judge stepped to the stand in front of the vocader grill and tersely presented the facts of the case, the reasons for his ruling. cyber v blinked and hummed steadily, assimilating and filing the facts. the d.a. followed the judge to the stand, and, from long habit, addressed cyber v with the same emotion and voice tricks he would have used in speaking to a human judge. walhfred anderson grimaced with disgust. when the d.a. finished, cyber v hummed briefly, two amber lights flickered, and the soft voice said: "defense counsel will please take the stand." professor neustadt smiled his ironic, exasperating smile. "the defense stipulates to the facts as stated." the frontal grid lights on cyber v flashed furiously; the hum rose to a whine, like a motor accelerating for a steep climb. suddenly, all was quiet, and cyber v spoke in the same soft, pleasant voice: "there are three cases in modern jurisprudence that have direct bearing on the matter of people vs. neustadt. "best known is the case of people vs. borth, n.y., supp. ...." walhfred anderson saw the d.a. stiffen to attention as the cyber repeated the citation given by professor neustadt. he felt his own pulse surge with the stir of a faint, indefinable hope. "there are also the cases of forsythe vs. state, ohio, , and murphy vs. u.s., d, c.c.a. "these cases establish precedence for a courtroom demonstration to determine points of material fact. "thank you, gentlemen." the voice stopped. all lights went dark. cyber v, cad, had rendered its decision. whatever misgivings the d.a. may have generated over the professor's display of legal knowledge were overshadowed now by his satisfaction at this display of cyber efficiency. "eight minutes!" he announced triumphantly. "eight minutes to present the facts of the case and obtain a ruling. there's efficiency for you! there's modern courtroom procedure!" walhfred anderson felt the weight of eighty-six years as he cocked the angle of his bow tie, squared his shoulders and led the way back to his own courtroom. maybe the new way was right. maybe he was just an old man, burdened with dreams, memories, the impedimentia of human emotions. it would have taken him many long, weary hours to dig out those cases. maybe the old way had died with holmes and the other giants of that era. details of the demonstration were quickly concluded. the d.a. selected a cyber ix for the test. evidently he had acquired a new respect for professor neustadt and was taking no chances. cyber ix was a massive new model, used as an intergrator by the sciences. judge anderson had heard that its memory storage units were the greatest yet devised. if professor neustadt had also heard this, he gave no sign of it. he made only a slight, contemptuous nod of assent to the d.a.'s choice. for an instant, the judge found himself hoping that the professor would be beaten into humility by cyber ix. the man's attitude was maddening. walhfred anderson banged his gavel harder than necessary, and recessed the hearing for three days. in the meantime, a cyber ix was to be moved into the courtroom and placed under guard. professor neustadt was freed on bail, which he had already posted. court fax-sheet reporters picked up the story and ballooned it. the d.a.'s office released publicity stories almost hourly. cartoonists created "battle of the century" illustrations, with cyber ix and professor neustadt posed like fighters in opposite corners of the ring. "man challenges machine" was the caption, indicating that the professor was a definite underdog and thus the sentimental favorite. one court reporter confided to judge anderson that bookmakers were offering odds of ten to one on cyber ix. to the judge's continuing disgust, professor neustadt seemed as avid as the prosecutor's office for publicity. he allowed himself to be guest-interviewed on every available television show; one program dug up an ancient film of the professor as a quiz kid, extracting cube roots in a piping, confident voice. public interest boiled. tv coverage of the court test was demanded, and eagerly agreed to by both the prosecutor and professor neustadt. walhfred anderson ached to cry out against bringing a carnival atmosphere into his courtroom; the fax photographers were bad enough. but he knew that any attempt to interfere would bring him back before that infernal cad. * * * * * when he entered his courtroom on the morning of the trial, the judge wore a new bow tie, a flippant green, but he felt like many a defendant he had watched step up before his bench to receive sentence. after this morning, there'd be no stopping the d.a.'s campaign for cyber judges. he glared unhappily at the battery of television cameras. he noted that one of them was pointed at oliver wendell holmes. the justice didn't seem to mind; but who would--all safe and snug in a nice gold frame? easy enough for holmes to look so cocky. the bright lights hurt his eyes, and he had to steel himself in order to present the picture of dignified equanimity that was expected of a judge. people would be looking at him from every part of the world. five hundred million viewers, one of the columnists had estimated. professor neustadt appeared in the same shiny brown suit. as he passed the huge cyber ix unit, metallic gray and mounted on a table of reinforced steel, the professor paused and bowed, in the manner of a courtly gladiator saluting a respected foe. spectators clapped and whistled their approval. television cameras zoomed in on the scene. with easy showmanship, professor neustadt maintained the pose for closeups, his owlish eyes wide and unblinking. judge anderson banged his gavel for order. what a poseur! what a fraud! this charlatan would get a million dollars worth of publicity out of the case. at a nod from the d.a., the bailiff gave professor neustadt a pad of paper on which to note his answers. it had been previously been agreed that cyber ix would answer visually, on the screen, instead of by vocader. the professor was seated at the far end of the counsel table, where he could not see the screen. clerks with stopwatches were stationed behind the professor and cyber ix. "is the defendant ready?" inquired judge anderson, feeling like an idiot. "of course." the judge turned to cyber ix, then caught himself. he flushed. the courtroom tittered. the district attorney had five questions, each in a sealed envelope, which also contained an answer certified by an eminent authority in the field. with a flourish, keeping his profile to the cameras, the d.a. handed the first envelope to judge anderson. "we'll begin with a simple problem in mathematics," he announced to the tv audience. from the smirk in his voice, judge anderson was prepared for the worst. but he read the question with a perverse sense of satisfaction. this professor was in for a very rough morning. he cleared his throat, read aloud: "in analyzing the economics of atomic power plant operation, calculate the gross heat input for a power generating plant of x ^ watts electrical output." cyber ix hummed into instantaneous activity; its lights flashed in sweeping curves and spirals across the frontal grid. professor neustadt sat perfectly still, eyes closed. then he scribbled something on a pad of paper. two stopwatches clicked about a second apart. the clerk handed the professor's slip of paper to judged anderson. the judge checked it, turned to the screen. both answers were identical: , x ^ btu/hr. time was announced as fourteen seconds for cyber ix; fifteen and three-tenths seconds for professor neustadt. the cyber had won the first test, but by an astoundingly close margin. the courtroom burst into spontaneous applause for the professor. walhfred anderson was incredulous. what a fantastic performance! no longer smirking, the d.a. handed the judge a second envelope. "what is the percentage compressibility of caesium under , atmospheres of pressure, and how do you account for it?" once again cyber ix hummed and flickered into action. and once again professor neustadt sat utterly still, head tilted back like an inquisitive parakeet. then he wrote swiftly. a stopwatch clicked. walhfred anderson took the answer with trembling fingers. he saw the d.a. rub dry lips together, try to moisten them with a dry tongue. a second stopwatch clicked. the judge compared the correct answer with the professor's answer and the answer on the screen. all were worded differently, but in essence were the same. hiding his emotion in a tone gruffer than usual, judge anderson read the professor's answer: "the change in volume is percent. it is due to an electronic transition for a s zone to a d zone." the professor's elapsed time was seconds. cyber ix had taken seconds to answer the compound question. professor neustadt pursued his lips; he seemed displeased with his tremendous performance. moving with the agility of a pallbearer, the d.a. gave judge anderson the third question: "in twenty-five words or less, state the nernst law of thermodynamics." this was clearly a trick question, designed to trap a human mind in its own verbiage. cyber ix won, in eighteen seconds. but in just two-fifths of a second more; professor neustadt came through with a brilliant twenty-four word condensation: "the entropy of a substance becomes zero at the absolute zero of temperature, provided it is brought to this temperature by a reversible process." a tabulation of total elapsed time revealed that professor neustadt was leading by nine and three-tenths seconds. a wild excitement blended with the judge's incredulity. the d.a. seemed to have developed a tic in his right check. on the fourth question, dealing with the structural formula similarities of dimenhydrinate and diphenhydramine hydrochloride, professor neustadt lost three seconds. on the fifth question, concerning the theoretical effects of humidity inversion on microwave transmission, the professor gained back a full second. the courtroom was bedlam, and walhfred anderson was too excited to pound his gavel. in the glass-walled, soundproofed television booths, announcers grew apoplectic as they tried to relay the fever-pitch excitement of the courtroom to the outside world. professor neustadt held up his bone-thin hand for silence. "may it please the court.... the district attorney agreed that in the event of victory i could ask cyber ix an optional question. i would like to do so at this time." judge anderson could only nod, and hope that his bulldog features were concealing his emotions. the d.a. kept his back rigidly to the television cameras. professor neustadt strutted up to cyber ix, flipped on the vocader switch and turned to the cameras. "since cyber ix is essentially a scientific integrator and mathematical unit," he began pedantically, "i'll put my question in the cyber's own framework. had another cyber been selected for this test, i would phrase my question differently." he turned challengingly back to cyber ix, paused for dramatic effect, and asked: "what are the magnitudes of a dream?" cyber ix hummed and twinkled. the hum rose higher and higher. the lights flickered in weird, disjointed patterns, blurring before the eye. abruptly, the hum stopped. the lights dimmed, faded one by one. the eternally calm, eternally pleasant voice of cyber ix spoke from the vocader grill: "problem unsolved." * * * * * for an interminable instant there was silence in the courtroom. complete silence. stunned incredulity. it was followed by a collective gasp, which walhfred anderson could hear echoing around the world. cyber ix had been more than beaten; it had failed to solve a problem. the gasp gave way to unrestrained cheering. but the professor brought quiet again by raising his bony hand. now there was a strange, incongruous air of dignity about his thin figure. "please," he said, "please understand one thing.... the purpose of this demonstration and my question was not to discredit cyber ix, which is truly a great machine, a wonder of science. "cyber ix could not know the magnitudes of a dream ... because it cannot dream. "as a matter of fact, i do not know the magnitudes of a dream, but that is not important ... because i _can_ dream! "the dream is the difference.... the dream born in man, as the poet said, 'with a sudden, clamorous pain' ..." there was no movement or sound in the courtroom. walhfred anderson held the professor's last written answer between his fingers, as if fearing that even the small movement to release it might shatter something delicate and precious. "the dream is the difference!" there it was. so clear and true and beautiful. he looked at holmes, and holmes seemed to be smiling under his gray mustache. yes, holmes had known the dream. in the sound-proof booths, the announcers had stopped speaking; all mike lines were open to carry professor neustadt's words to five hundred million people. "perhaps there are no magnitudes of such a dream ... no coordinates! or it may be that we are not yet wise enough to know them. the future may tell us, for the dream is the rainbow bridge from the present and the past to the future." professor neustadt's eyes were half-closed again, and his head was cocked back, bird-like. "copernicus dreamed a dream.... so did da vinci, galileo and newton, darwin and einstein ... all so long ago.... "cyber ix has not dreamed a dream.... nor have cyber viii, vii, vi, v, iv, iii, ii, i. "but they can free men to dream. "remember that, if you forget all else: they can free men to dream! "man's knowledge has grown so vast that much of it would be lost or useless without the storage and recall capacity of the cybers--and man himself would be so immersed in what he knows that he would never have time to dream of that which he does not yet know, but must and can know. "why should not the scientist use the past without being burdened by it? why should not the lawyer and the judge use the hard-won laws of justice without being the slave of dusty law books?" walhfred anderson accepted the rebuke without wincing. the rebuke for all the hours he had wasted because he had been too stubborn to use a cyber clerk, or consult cyber v. the old should not resist the new, nor the new destroy the old. there was the letter of the law, and there was the spirit, and the spirit was the dream. what was old hammurabi's dream? holmes had quoted it once, "... to establish justice on the earth ... to hold back the strong from oppressing the feeble ... to shine like the sun-god upon the blackheaded men, and to illumine the land...." holmes had dreamed the dream, all right. he had dreamed it grandly. but maybe there was room for small dreams, too, and still time for dreams when the years were so few and lonely. the professor suddenly opened his eyes, and his voice took on the twang of steel under tension. "you are already wondering," he told the cameras accusingly, "whether i have not disproved my own words by defeating cyber ix. "that is not true. "i defeated cyber ix because i have wasted a man's life--my own! you all know that as a child i was a mnemonic freak, a prodigy, if you prefer. my mind was a filing cabinet, a fire-proof cabinet neatly filled with facts that could never kindle into dreams. all my life i have stuffed my filing cabinet. for sixty years i have filed and filed. "and then i dreamed one dream--my first, last and only dream. "i dreamed that man would mis-use another gift of science, as he has mis-used so many.... i dreamed of the cybers replacing and enslaving man, instead of freeing man to dream.... and i dreamed that the golden hour would come when a man would have to prove that he could replace a cyber--and thereby prove that neither man nor cybers should ever replace each other." professor neustadt turned to judge anderson, and his voice dropped almost to a whisper. "your honor, i move that this case be dismissed." the worn handle of his old teakwood gavel felt warm and alive to the judge's fingers. he sat up straight, and banged resoundingly on the top of his desk. "case dismissed." then, in full view of the cameras, walhfred anderson turned and winked boldly at oliver wendell holmes.